On August 27, 2020, the Department of Commerce’s Bureau of Industry and Security (“BIS”) published in the Federal Register an advance notice of proposed rulemaking (ANPRM) for foundational technologies and asked for public comment on the categories of technologies for which BIS should issue controls. Specifically, BIS is soliciting public comments through October 26, 2020, on the definition of foundational technology and the criteria for identifying foundational technology. BIS is focused on items subject to the EAR and controlled for anti-terrorism reasons (AT) or currently considered EAR99.

In August 2018, Congress enacted the Export Control Reform Act of 2018 (ECRA), directing the Commerce Department to conduct an interagency review process to identify “emerging and foundational technologies” and to impose controls on the export, reexport or in-country transfer of such technologies. On November 19, 2018, BIS released an ANPRM soliciting comments on the definition and criteria to be used to identify “emerging technologies,” and on January 6, 2020 issued a related interim final rule. For more information on the emerging technologies ANPRM, please see Update of November 19, 2018.

Items controlled as emerging and foundational technologies under ECRA also qualify as “critical technologies” under the Foreign Investment Risk Review Modernization Act (FIRRMA). Under FIRRMA, the Committee on Foreign Investment in the United States (CFIUS) has expanded jurisdiction to review a wider range of foreign investment transactions involving critical technologies, and requires mandatory filings under some circumstances. For more information on CFIUS’s expanded jurisdiction to review critical technologies, please see Update of January 22, 2020.

Interested parties may submit public comments on the foundational technologies ANPRM until October 26, 2020, as follows:

  • Through the Federal eRulemaking Portal: http://www.regulations.gov, referencing the rulemaking identification number BIS-2020-0029; or
  • 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, D.C. 20230, referencing RIN 0694-AH80.