U.S. Commerce Department Releases Proposed Rulemaking for Export Controls on Emerging Technologies

On November 19, 2018, the US Commerce Department’s Bureau of Industry and Security (BIS) issued a proposed rulemaking seeking public comment on criteria for identifying emerging technologies that are essential to U.S. national security.  The proposed rulemaking has two important impacts:

1. Emerging technologies identified through this process will become subject to stricter export controls.  This will impact exports and re-exports to a number of countries or employees from those countries, including China.
2. Certain types of foreign investments in U.S. companies that develop identified emerging technologies will be subject to mandatory filings with the Committee on Foreign Investment in the United States (CFIUS).  This includes minority, non-controlling equity investments that afford foreign investors certain rights.

BIS is currently seeking comment on: 1) how to define emerging technology to assist identification of such technology in the future; 2) criteria to apply to determine whether there are specific technologies within these general categories that are important to U.S. national security; 3) sources to identify such technologies; 4) other general technology categories that warrant review to identify emerging technology that are important to U.S. national security; 5) the status of development of these technologies in the United States and other countries; 6) the impact specific emerging technology controls would have on U.S. technological leadership; 7) any other approaches to the issue of identifying emerging technologies important to U.S. national security, including the stage of development or maturity level of an emerging technology that would warrant consideration for export control.  The deadline to submit comments is December 19, 2018.

Please see below for the list of representative technology categories provided by BIS.  Note that the US Commerce Department will also be issuing a separate rulemaking for proposed controls on “foundational” technologies.