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The Bureau of Industry & Security (BIS) of the U.S. Department of Commerce has published an advance notice of proposed rulemaking on August 27, 2020. In order to apply controls, BIS is seeking public comments to help identify foundational technologies. Specifically, BIS is asking interested parties in defining these terms to submit comments by October 26, 2020.
Kicking off an intra-agency review process authorized by the Export Control Reform Act to determine what additional export controls to be implemented on the foundational technologies, the ANPRM signals that BIS will rely more on industry for guidance on the definition and categories of foundational technologies.
There are no new controls, yet
The ANPRM does not impose any new export/import controls on specific items or provide a list of items that will be subject to future controls or impose any new controls at all -for now-. However, since BIS solicits public feedback on how to identify foundational technologies; it is expected that, at a minimum, any export/import control on these technologies will be issued through a new process that will apply to countries such as China which is currently subject to the U.S. embargo. Therefore, being the latest in the series of U.S. government efforts to reform the policy framework governing national security-based regulation of technology transfer, the ANPRM may have significant implications for developers and exporters of U.S. sourced foundational technologies. Especially for the ones who are in relation with the exports or transfers that involve China, and for the foreign invested U.S. businesses that engage in certain activities related to such technologies.
Not Much Detail on Which Foundational Technologies to be Controlled
Unlike the Emerging Technologies in which BIS proposed a list of representative technologies, the ANPRM does not provide any categories of potential foundational technologies essential to the U.S. national security. However, it does provide some useful examples of the type of foundational technology BIS is focusing on, and potential applications. For instance, the controls will likely be limited with those relevant to data analysis collection, developing, manufacturing, testing and certification tools, systems and software, and surveillance.
BIS Signals Potential Expansion of Controls on Items Subject to Military End-Use and End-User Restrictions
Even though it is not clear yet whether the foundational technology review process will lead to broader technology-specific controls which may apply nationally, BIS appears to be exploring how to implement controls based on end-use and/or end-user rather than, or in addition to, technology based controls. The examples given in the ANPRM focus on national security issues related with the specific end-uses, and end-users. For instance, technologies used for indigenous military innovation efforts in China, Russia, or Venezuela; technologies which would enable innovation in developing weapons, or foreign intelligence collection activities, or further foreign military or intelligence capabilities in countries of concern or development of weapons of mass destruction.
Submission of Public Comments on Foundational Technologies
Developers, exporters, others who deal with potential fundamental technologies, those whose supply chain may depend on such technologies, or potential foreign investors in U.S. businesses whose activities may involve such technologies should evaluate the potential impact of the ANPRM on their businesses, and consider submitting their comments to the U.S. government.
Please note that to submit comments there is no need to be a U.S. citizen; and comments can be submitted through the Federal eRulemaking Portal referencing the rulemaking identification number BIS-2020-0029; or by mail or delivery to Regulatory Policy Division, Bureau of Industry and Security, U.S. Department of Commerce, Room 2099B, 14th Street and Pennsylvania Avenue NW, Washington, DC 20230, referencing RIN 0694-AH80.
Interested parties are expected to guide on the following topics:
- Definition of foundational technology;
- Sources to identify such technologies;
- Criterias to determine such technologies;
- Status of development of such technologies in the U.S. and other countries;
- The impact of specific foundational technology controls on the U.S. industry;
- Examples of implementing controls based on end-use and/or end-user rather than, or in addition to, technology-based controls;
- Examples of enabling technologies, including tooling, testing and certification equipment that should be included within the scope of a foundational technology;
- 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.
Şafak Herdem
