[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: http://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.
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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]
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