Background

The Bureau of Industry and Security is taking steps to more quickly impose export controls on emerging and foundational technologies following criticism of the pace of its efforts last year.

Section 1758 of the Export Control Reform Act authorizes BIS to establish appropriate controls on the export, reexport, or transfer (in-country) of emerging and foundational technologies that are essential to U.S. national security. However, ECRA does not define these terms (and does not require BIS to define them) or provide guidance on how to differentiate between the two, nor does it require that either category be treated differently from the other. BIS has solicited public comment on these two terms with the idea that defining them would assist in the identification of the technologies but instead has found that the categorization of the technologies has sometimes delayed the imposition of export controls.

As a result, BIS now states that in making future determinations it will not characterize a specific technology as “emerging” or “foundational” for purposes of ECRA but instead will simply identify it as a “Section 1758 technology.” Nevertheless, the identification of such technologies will continue to take into account the statutory criteria in Section 1758: (1) the development of the technologies in foreign countries, (2) the effect export controls may have on the development of such technologies in the U.S., and (3) the effectiveness of export controls on limiting the proliferation of the technologies in foreign countries.
BIS anticipates that this change will facilitate more efficient interagency review of implementing
regulations and result in more timely implementation of export controls. BIS also states that this change would not affect (1) the designation of critical technologies for purposes of Committee on Foreign Investment in the U.S. screenings, because technologies identified pursuant to Section 1758 are critical technologies regardless of whether they are characterized as emerging or foundational, or (2) the scope of export controls on any technologies controlled consistent with Section 1758.

In line with this determination, BIS is proposing to impose new unilateral export controls on four naturally occurring dual-use biological toxins: brevetoxin, gonyautoxin, nodularin, and palytoxin. BIS states that these marine toxins have the potential (through either accidental or deliberate release) to cause casualties in humans or animals, degrade equipment, or damage crops or the environment. As these toxins are now capable of being more easily isolated and purified due to novel synthesis methods and equipment, BIS states, the absence of export controls on them could be exploited for biological weapons purposes. To address this concern, BIS is proposing to add these toxins to ECCN 1C351.

For more information on export controls, including on emerging and foundational technologies, please contact attorney Kristine Pirnia via email.

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