The Bureau of Industry and Security (BIS) within the US Department of Commerce has announced in an Advance Notice of Proposed Rulemaking that it is seeking public comments on how it should define and identify "foundational technologies" as it examines whether to impose stricter export controls on items that receive that label in order to protect US national security interests.
Under section 1758 of the Export Control Reform Act of 2018, BIS is required to establish appropriate export controls on emerging and foundational technologies, which are described as those technologies that are essential to US national security but which are not already identified as "critical technologies" under the earlier Defense Production Act of 1950. Such controls on emerging and foundational technology would apply, at a minimum, to countries embargoed by the United States.
In November 2018, BIS issued a similar call for public comment on how to define and identify "emerging technologies" but has yet to issue a final rule on the application of that term. In that notice, BIS provided a number of categories and subcategories of technology in which it sought to determine whether there are specific emerging technologies essential to US national security. The categories of emerging technologies included biotechnology, artificial intelligence, microprocessors, quantum information technology, and robotics.
In today's notice, BIS does not provide the same degree of guidance on what it considers foundational technologies. It suggests that semiconductor manufacturing equipment and software, lasers, sensors, and underwater systems could be foundational technologies because they "can be tied to indigenous military innovation efforts in China, Russia or Venezuela," and may accordingly pose a national security threat. BIS also suggests that items being used or required for innovation in developing conventional weapons or weapons of mass destruction or in enabling foreign intelligence collection activities.
Aside from those examples, BIS provides a list of eight specific areas on which it seeks public comment, including the impact that specific foundational technology controls might have on the development of those technologies in the United States. BIS also asks whether its eventual definition of foundational technology should include "enabling technologies" such as tooling, testing, and certification equipment.
Public comments related to foundational technologies are due on or before October 26, 2020.
For inquiries or assistance related to these announcements or compliance with US export controls, please contact Aaron Wolfson (aaron.wolfson@us.kwm.com) or Meg Utterback (meg.utterback@us.kwm.com).
