BIS Publishes ANPRM for Foundational Technologies
The Bureau of Industry and Security released its long-awaited pre-rule for foundational technologies (see 2005190052), asking for industry feedback on the types of technologies BIS should target for potential export controls. The effort, which BIS is pursuing alongside restrictions for emerging technologies, seeks to pinpoint technologies that the agency said may warrant more strict controls.
BIS said it is specifically looking for feedback on a definition for foundational technologies, an undertaking agency officials said has been intellectually challenging (see 1911050052). The agency is hoping for extensive input from industry, including suggestions on criteria to identify foundational technologies, how the controls might impact their development and the potential benefits of end-use or end-user-based controls as opposed to technology-based controls. BIS said it will welcome “any other approaches to the issue of identifying foundational technologies … including the stage of development or maturity level of [a] foundational technology that would warrant consideration for export control.”
The agency said it expects to use the public comments to impose new control levels on items currently controlled for anti-terrorism reasons or items controlled under the Export Administration Regulations and classified as EAR99. Comments on the advance notice of proposed rulemaking are due Oct. 26.
The notice represents a different approach from BIS’s 2018 advance notice of proposed rulemaking for emerging technologies, which listed 14 categories of technologies for potential controls and sparked fear within industry of overbroad restrictions over entire groups of technologies (see 1911070014). Officials tried to temper those fears, saying BIS intended to only restrict narrow slices of technologies and broad restrictions would be a “disaster” (see 1906280057).
Similarly, some in industry, particularly universities, have said they are concerned about export controls on fundamental research -- research that is widely published and shared within the scientific community (see 2005120053). In the foundational technology ANPRM, BIS stressed that it will not look to “expand jurisdiction” over technologies that are not subject to the EAR, including “fundamental research.”
While BIS has identified emerging technologies as items that are not yet widely available, the agency said foundational technologies may already be captured by export controls but warrant more restrictions. Foundational technologies may be items already subject to controls for military end-uses, including semiconductor manufacturing equipment, software tools, lasers, sensors and underwater systems. BIS may also target items listed on the Commerce Control List for which export licenses are not required for countries subject to U.S. arms embargoes but that could be used to develop weapons or enable “foreign intelligence collection activities.”