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Export Controls on Emerging Technologies Expected from New Process

Tuesday, November 20, 2018
Sandler, Travis & Rosenberg Trade Report

The Bureau of Industry and Security has launched a process likely to result in export controls on emerging technologies. BIS notes that it is not seeking to expand jurisdiction over technologies not currently subject to the Export Administration Regulations nor to alter existing controls on technology already specifically described on the Commerce Control List.

The Export Control Reform Act of 2018 authorized BIS to establish appropriate controls on the export, reexport, or transfer (in-country) of emerging and foundational technologies. The general categories of technology under review include the following.

- biotechnology (e.g., nanobiology, synthetic biology, genomic and genetic engineering, and neurotech)

- artificial intelligence and machine learning technology (e.g., neural networks and deep learning, evolution and genetic computation, computer vision, planning, etc.)

- position, navigation, and timing technology

- microprocessor technology (e.g., systems-on-chip or stacked memory on chip)

- advanced computing technology (e.g., memory-centric logic)

- data analytics technology (e.g., visualization, automated analysis algorithms, or context-aware computing)

- quantum information and sensing technology (e.g., quantum computing, encryption, or sensing)

- logistics technology (e.g., total asset visibility or distribution-based logistics systems)

- additive manufacturing (e.g., 3D printing)

- robotics (e.g., micro-drone and micro-robotic systems. swarming technology, self-assembling robots, and molecular robotics)

- brain-computer interfaces

- hypersonics (e.g., flight control algorithms, propulsion technologies, and specialized materials)

- advanced materials (e.g., adaptive camouflage, functional textiles, or biomaterials)

- advanced surveillance technologies (e.g., faceprint and voiceprint technologies)

In identifying emerging technologies within these categories that are essential to U.S. national security (e.g., because they have potential conventional weapons, intelligence collection, weapons of mass destruction, or terrorist applications or could provide the U.S. with a qualitative military or intelligence advantage), BIS must consider (a) the development of such technologies in foreign countries, (b) the effect export controls may have on the development of such technologies in the U.S., and (c) the effectiveness of export controls on limiting the proliferation of such technologies in foreign countries.

As a result, BIS is inviting comments by Dec. 19 on (1) how to define emerging technology to assist in the identification of such technology in the future, (b) criteria to apply to determine whether there are specific technologies within the above categories that are important to U.S. national security, (3) sources to identify such technologies, (4) other general technology categories that warrant review, (5) the status of development of these technologies in the U.S. and other countries, (6) the impact specific emerging technology controls would have on U.S. technological leadership, and (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.

Comments will inform an interagency process expected to result in proposed rules for new export control classification numbers on the Commerce Control List. BIS states that in determining the appropriate level of export controls for identified technologies it must consider the potential end-uses and end-users of the technology as well as the countries to which exports from the U.S. are restricted (e.g., embargoed countries). While BIS has discretion to set the level of export controls, at a minimum it must require a license for the export of emerging technologies to countries subject to U.S. embargo, including arms embargo.

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