On August 27, 2020, the U.S. Department of Commerce, Bureau of
Industry and Security (BIS) issued an advance
notice of proposed rulemaking (the ANPRM)
requesting public comment on the definition of, and criteria for
identifying, "foundational" technologies1 that are essential
to U.S. national security and should be subject to more stringent
export controls.2 The ANPRM marks another step
toward implementing the long-delayed "emerging and
foundational technology" provisions of the Export Control
Reform Act of 2018 (ECRA).3 Like the earlier
ANPRM regarding emerging technologies, the rulemaking is still at a
conceptual stage.
The ECRA, which was signed into law in August 2018, directs BIS
to conduct an interagency review process to identify so-called
"emerging and foundational technologies."4 These are intended
to be technologies that historically have not been subject to
export controls under multilateral regimes, but are nonetheless
essential to U.S. national
