The U.S. National Science and Technology Council (NSTC)[1] recently published an updated list of critical and emerging technologies (CETs) as part of an ongoing effort to identify advanced technologies that are potentially significant to U.S. national security.
In the updated list, the NSTC added a number of new CETs, removed some CETs from the previous October 2020 list of CETs, and included subfields within most of the CETs focused on core technologies (rather than on technology application areas or performance characteristics). The updated list includes the following CETs:
- Advanced Computing
- Advanced Engineering Materials
- Advanced Gas Turbine Engine Technologies
- Advanced Manufacturing
- Advanced and Networked Sensing and Signature Management
- Advanced Nuclear Energy Technologies
- Artificial Intelligence
- Autonomous Systems and Robotics
- Biotechnologies
- Communication and Networking Technologies
- Directed Energy
- Financial Technologies
- Human-Machine Interfaces
- Hypersonics
- Networked Sensors and Sensing
- Quantum Information Technologies
- Renewable Energy Generation and Storage
- Semiconductors and Microelectronics
- Space Technologies and Systems
In addition to the NSTC’s efforts to identify CETs, pursuant to the Export Control Reform Act of 2018 (ECRA), the U.S. Department of Commerce also has been working to identify so-called emerging and foundational technologies. These are technologies that previously were not subject to U.S. export controls, but nonetheless are considered to be important to U.S. national security. There is a fair amount of overlap between the original list of emerging technologies published by Commerce and the updated list of CETs from the NSTC (including, for example, biotechnology, artificial intelligence, and hypersonics).[2] To date, the process of identifying specific emerging and foundational technologies undertaken by Commerce has been somewhat slower than originally expected. This could be due, at least in part, to the fact that Commerce has approached the process on a multilateral basis.
While the updated list of CETs does not automatically impose stringent export controls on the identified technologies, it potentially foreshadows the types of technologies that could be identified as emerging technologies by Commerce in the future. Such technologies also would be considered critical technology under the regulations administered by the Committee on Foreign Investment in the United States (CFIUS).
This is important because not only will such technologies be subject to stringent export controls and likely require a license for export to, for example, China, but foreign investments into U.S. businesses that engage in activities with or involving such technologies could trigger a mandatory CFIUS notification. For more information about the mandatory CFIUS notification requirements for critical technology, see here. In the meantime, foreign investors should carefully consider the extent to which U.S. businesses into which they are investing engage in activities with or involving one or more of the CETs listed above or the emerging technologies previously identified by Commerce. Even if such investments do not trigger a mandatory CFIUS notification, they could be of interest to CFIUS from a national security perspective, such that it could be prudent to voluntarily notify CFIUS of such investments. Notifying CFIUS and obtaining CFIUS clearance would prevent CFIUS from inquiring about and reviewing such investments in the future, in connection with which CFIUS would review the activities of the U.S. business at the time of the review (not at the time of the original investment).
For more information about the process of identifying and imposing export controls on critical and emerging technologies under the ECRA and subsequent CFIUS implications, please read our other blogs here, here, here, and here.
[1] The NSTC is the principal means by which the Executive Branch coordinates science and technology policy across the federal research and development enterprise. A primary objective of the NSTC is to ensure that science and technology policy decisions and programs are consistent with the President’s stated goals. See https://www.whitehouse.gov/wp-content/uploads/2022/02/02-2022-Critical-and-Emerging-Technologies-List-Update.pdf.
[2] Commerce also previously published a notice regarding foundational technologies. See https://www.federalregister.gov/documents/2020/08/27/2020-18910/identification-and-review-of-controls-for-certain-foundational-technologies. That notice identifies semiconductors, which are included as a CET, as a potential foundational technology.