BIS Publishes Foundational Technologies Control ANPRM

The DOC’s Bureau of Industry and Security (BIS) published an advanced notice of proposed rulemaking (ANPRM) in today’s Federal Register (85 FR 52934-52935) on the “Identification and Review of Controls for Certain Foundational Technologies” as required by 50 USC 4817 (Note: This cite was incorrectly listed in the ANPRM as 50 USC 4801).

Under the Export Control Reform Act of 2018 (ECRA) BIS is required {§4817(a)} to identify foundational technologies and establish controls for those technologies under the Export Administration Regulations (EAR; 15 CFR 730 et seq). The term ‘foundational technologies’ is not defined in either the ECRA or EAR. The summary to this ANPRM provides the following broad description of the term:

“Foundational technologies essential to the national security are those that may warrant stricter controls if a present or potential application or capability of that technology poses a national security threat to the United States.”

The BIS is looking for comments on:

• How to further define foundational technology to assist in identification of such items,

• Sources to identify such items,

• Criteria to determine whether controlled items identified in AT level Export Control Classification Numbers (ECCNs), in whole or in part, or covered by EAR99 categories, for which a license is not required to countries subject to a U.S. arms embargo, are essential to U.S. national security,

• The status of development of foundational technologies in the United States and other countries,

• The impact specific foundational technology controls may have on the development of such technologies in the U.S.,

• Examples of implementing controls based on end-use and/or end-user rather than, or in addition to, technology-based controls,

• Any enabling technologies, including tooling, testing, and certification equipment, that should be included within the scope of a foundational technology, and

• Any other approaches to the issue of identifying foundational technologies important to U.S. national security, including the stage of development or maturity level of a foundational technology that would warrant consideration for export control.

BIS is soliciting public comments on this ANPRM. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # BIS-2020-0029). Comments should be submitted by October 26^th, 2020.