BIS Tech Work Hindering CFIUS, Experts Say

The Commerce Department Bureau of Industry and Security's handling of emerging and foundational technologies drew rhetorical fire on a Center for Strategic and International Studies webinar. Experts said Friday the lengthy process is impeding Committee on Foreign Investment in the U.S. work. “It’s a hard list," said Wiley's Nova Daly of BIS work to come up with information on such technologies that need curbs when involving certain other countries. "Emerging technologies shift and change.” Putting controls on emerging and foundational technologies is "a requirement by law," the expert added. "It will help CFIUS do its job in terms of being able to make sure we don't lose those critical technologies.” The Foreign Investment Risk Review Modernization Act (FIRRMA) let CFIUS review transactions involving such tech. Because of some BIS delays in issuing those controls, CFIUS may not have a clear definition for what technologies to target, experts say. Making CFIUS partly dependent on BIS “was a really bad idea, and I think it needs to be re-looked,” said David Hanke, who helped draft FIRRMA and now is at Arent Fox. “There needs to be more agility, there needs to be more speed, the ability for [Treasury] to see something coming, and whether or not it's covered by BIS and the commerce control list, to be able to designate that in a quick manner.” Thomas Feddo, Treasury's CFIUS lead, cautioned critics from placing too much blame on BIS. “I'm not an export controls expert. I wish Commerce was here to defend themselves,” he said. “I think they might make some argument that they're making a great deal of progress.” Feddo said CFIUS doesn't necessarily need BIS to designate critical technologies for the committee to target transactions. BIS didn't comment Monday. A BIS spokesperson Friday pointed to its notice that day announcing six additional emerging technology controls. The agency hasn't issued foundational tech final controls (see 2008260013).