BIS Requests Comments on Export Controls on Emerging Technologies

BIS Requests Comments on Export Controls on Emerging Technologies


By: Michael T. Gershberg, Justin A. Schenck

On November 19, 2018, the U.S. Department of Commerce's Bureau of Industry and Security (BIS) published an Advanced Notice of Proposed Rule-Making (ANPRM) regarding export controls for emerging technologies.  In August 2018, Congress enacted the Export Control Reform Act (ECRA), which authorizes BIS – through an interagency process – to establish appropriate export controls on emerging and foundational technologies.  The ANPRM identifies fourteen general categories of emerging technologies that are vital to U.S. national security and requests comments on specific criteria for classifying and controlling such technologies.  After BIS has considered the comments, it will issue a proposed rule with specific control criteria for certain emerging technologies that are currently considered EAR99 items.  These export controls will also be important under the Committee on Foreign Investment in the United States (CFIUS) process because newly controlled emerging technologies will also be deemed “critical technologies” for CFIUS purposes.  Under the new CFIUS statute and pilot program, CFIUS filings are mandatory for foreign investments (both control and non-control transactions) in U.S. businesses that deal in critical technologies in certain sectors.

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