Earlier this year, Congress passed the Export Control Reform Act (ECRA) as part of the 2019 John S. McCain National Defense Authorization Act. With the objectives of ensuring that export controls keep pace with innovation, protect US national security and preserve US technological leadership and competitiveness, the ECRA requires US regulatory agencies to create a process to identify and establish controls for "emerging and foundational technologies." These are defined as technologies that are "essential to the national security of the United States," but that are not already identified on the United States Munitions List; the Commerce Control List (under multilateral controls or control reasons relating to regional stability or surreptitious listening); the lists maintained by the Department of Energy regarding nuclear facilities, material, equipment and technology; or the lists maintained by the Department of Agriculture and the Department of Health and Human Services regarding select agents and toxins.

On November 19, the Commerce Department's Bureau of Industry and Security (BIS), which controls the export of sensitive dual-use and less-sensitive military goods and technology, took an important preliminary step in establishing the review and control process required under ECRA. The agency published an advance notice of proposed rulemaking (ANPRM), soliciting comments from the public on specific matters related to identifying and controlling emerging and foundational technologies. Comments will be accepted until December 19.

BIS is focusing its review on certain specified categories and subcategories of technology, which include:

  • Biotechnology
  • Artificial intelligence and machine learning
  • Position, navigation and timing (PNT) technology
  • Microprocessor technology
  • Advanced computing technology, such as memory-centric logic
  • Data analytics
  • Quantum information and sensing technology
  • Certain logistics technology
  • Additive manufacturing such as 3D printing
  • Robotics
  • Brain-computer interfaces
  • Hypersonics
  • Advanced materials
  • Advanced surveillance technologies

Specifically, BIS seeks feedback on the following issues: 

  • How to define emerging technology in the future
  • Which criteria should be used to determine whether specific technologies in these categories are important to US national security
  • Sources to identify such technologies
  • Other technology categories warranting review
  • The status of development of these technologies in the US and other countries
  • The impact specific controls would have on US technological leadership
  • Any other approaches to the issue of identifying emerging technologies important to US national security, including the stage of development or maturity level of an emerging technology that would warrant consideration for export control

Comments from industry will be critically important to the agency's rulemaking process. Industry and government both have an interest in ensuring that emerging and foundational technologies are not subject to either over-control or under-control, and that the eventual regulations can be effectively interpreted and applied. Businesses in the industries identified in the ANPRM possess technical and practical expertise that is necessary to help develop regulations that strike the appropriate balance between encouraging innovation and trade and protecting the United States' national security interests. 

The implementation of ECRA's provisions on emerging and foundational technologies is likely to be one of the more consequential developments in US export controls reform in recent years. The ANPRM is an opportunity for businesses in impacted industries to take an active role in shaping regulations that will affect them well into the future. Interested parties may submit comments by mail or online through the federal e-rulemaking portal, http://www.regulations.gov, using identification number BIS 2018-0024, by December 19.

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