Identification and Review of Controls for Certain Foundational Technologies, 52934-52935 [2020-18910]

Agencies

• DEPARTMENT OF COMMERCE
• Bureau of Industry and Security

[Federal Register Volume 85, Number 167 (Thursday, August 27, 2020)]
[Proposed Rules]
[Pages 52934-52935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18910]



[[Page 52934]]

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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 742 and 774

[Docket No. 200824-0224]
RIN 0694-AH80


Identification and Review of Controls for Certain Foundational 
Technologies

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: The Bureau of Industry and Security (BIS) controls the export, 
reexport, and transfer (in-country) of dual-use and certain military 
items through the Export Administration Regulations (EAR), including 
the Commerce Control List (CCL). Many items (commodities, software, and 
technology) subject to the jurisdiction of the EAR are listed on the 
CCL. Pursuant to the Export Control Reform Act of 2018, BIS and its 
interagency partners are engaged in a process to identify emerging and 
foundational technologies that are essential to the national security 
of the United States. Foundational technologies essential to the 
national security are those that may warrant stricter controls if a 
present or potential application or capability of that technology poses 
a national security threat to the United States. In order to determine 
if technologies are foundational, BIS will evaluate specific items, 
including items currently subject only to anti-terrorism (AT) controls 
on the CCL or those designated as EAR99. This ANPRM seeks public 
comment on the definition of, and criteria for, identifying 
foundational technologies. Comments on this ANPRM will help inform the 
interagency process to identify and describe such foundational 
technologies.

DATES: Submit comments on or before October 26, 2020.

ADDRESSES: You may submit comments through either of the following:
     Federal eRulemaking Portal: https://www.regulations.gov. 
The identification number for this rulemaking is BIS-2020-0029.
     Address: 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. Refer to RIN 0694-AH80.

FOR FURTHER INFORMATION CONTACT: Tongele Tongele, Office of 
Nonproliferation and Treaty Compliance, Bureau of Industry and 
Security, Department of Commerce by: phone (202) 482-0092; fax (202) 
482-3355; or email [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Section 1758 (50 U.S.C. 4801) of the Export Control Reform Act of 
2018 (ECRA) requires the Department of Commerce to establish 
appropriate controls on the export, reexport, or transfer (in country) 
of emerging and foundational technologies. Under ECRA, emerging and 
foundational technologies are those technologies that are essential to 
the national security of the United States and are not critical 
technologies described in Section 721(a)(6)(A)(i)-(v) of the Defense 
Production Act of 1950, as amended (DPA). ECRA notes the national 
security importance of U.S. leadership in science, technology, 
engineering, and manufacturing, including foundational technology that 
is essential to innovation. Items subject to the Export Administration 
Regulations (EAR) (15 CFR parts 730-774) that are not covered by the 
DPA's definition of critical technologies are items controlled only for 
anti-terrorism (AT), crime control (CC), or short supply (SS) reasons, 
subject to United Nations (UN) embargoes, or designated as EAR99.
    Section 1758 of ECRA requires that foundational technologies be 
identified, and that BIS establish appropriate controls for that 
technology under the EAR. At a minimum, such controls would apply to 
countries subject to an embargo, including an arms embargo, imposed by 
the United States.
    ECRA also requires that the interagency process is to take into 
account:
     The development of foundational technologies in foreign 
countries;
     The effect export controls may have on the development of 
such technologies in the United States; and
     The effectiveness of export controls imposed pursuant to 
ECRA on limiting the proliferation of foundational technologies to 
foreign countries.
    For purposes of this ANPRM, the term foundational technologies 
includes not only ``technology'' but also ``commodities'' and 
``software'' as used in the EAR.
    BIS now seeks public comment to inform the interagency process to 
identify and describe foundational technologies. For example, 
foundational technologies could include items that are currently 
subject to control for military end use or military end user reasons 
under Supplement No. 2 to part 744 of the EAR. Many of these items, 
including 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. 
Accordingly, they may pose a national security threat.
    There may be additional items, classified on the CCL 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 the 
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.
    BIS, through an interagency process, seeks to determine whether 
there are specific foundational technologies that warrant more 
restrictive controls, including technologies that have been the subject 
of illicit procurement attempts which may demonstrate some level of 
dependency on U.S. technologies to further foreign military or 
intelligence capabilities in countries of concern or development of 
weapons of mass destruction.
    BIS welcomes comments on: (1) How to further define foundational 
technology to assist in identification of such items; (2) sources to 
identify such items; (3) criteria to determine whether controlled items 
identified in AT level Export Control Classification Numbers (ECCNs), 
in whole or in part, 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 development 
of foundational technologies in the United States 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 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 an foundational technology that 
would warrant consideration for export control.

[[Page 52935]]

    BIS does not seek to expand jurisdiction over technologies that are 
not currently subject to the EAR, such as ``fundamental research'' 
described in Sec.  734.8 of the EAR.
    BIS will review public comments submitted in response to this ANPRM 
to help inform BIS and its interagency partners' efforts to identify, 
reevaluate and subsequently control foundational technologies. This 
interagency process is expected to result in rules and comment periods 
with new control levels for items currently controlled for AT reasons 
on the CCL or new ECCNs on the CCL for technologies currently 
classified as EAR99.
    OMB has determined that this action is significant under Executive 
Order 12866.

Submission of Comments

    Comments should be submitted to BIS as described in the ADDRESSES 
section of this ANPRM by October 26, 2020.

Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.

[FR Doc. 2020-18910 Filed 8-26-20; 8:45 am]
BILLING CODE 3510-33-P