Background

The Bureau of Industry and Security is accepting comments through Oct. 26 on the definition of, and criteria for identifying, foundational technologies. The Export Control Reform Act of 2018 requires BIS to establish appropriate controls on the export, reexport, or transfer (in-country) of emerging and foundational technologies (i.e., those essential to U.S. national security that are not critical technologies under the Defense Production Act). BIS states that this proceeding is expected to result in rules with new control levels for items currently controlled for anti-terrorism reasons or new export control classification numbers for technologies currently classified as EAR99.

 

BIS is interested in comments on (1) how to further define foundational technology, (2) sources to identify such items, (3) criteria to determine whether controlled items identified in AT-level ECCNs 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, (4) the status of foundational technology development in the U.S. and other countries, (5) the impact specific foundational technology controls may have on the development of such technologies in the U.S., (6) examples of implementing export controls based on end-use and/or end-user rather than, or in addition to, technology-based controls, (7) any enabling technologies, including tooling, testing, and certification equipment, that should be included within the scope of a foundational technology, and (8) 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 states that foundational technologies could include items that are currently subject to control for military end-use or end-user reasons, many of which (e.g., semiconductor manufacturing equipment and associated software tools, lasers, sensors, and underwater systems) can be

tied to indigenous military innovation efforts in China, Russia, or Venezuela and may therefore pose a national security threat.

 

There may be additional items, classified at the AT level or as EAR99, for which an export license is not required for countries subject to a U.S. arms embargo that also warrant review to determine if they are foundational technologies essential to U.S. national security. For example, such controls may be reviewed if the items are being utilized or required for innovation in developing conventional weapons, enabling foreign intelligence collection activities, or weapons of mass destruction applications.

 

For more information, please contact Kristine Pirnia. To register for ST&R’s upcoming webinar on export control basics, click here.

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