Republican Lawmakers Critical of BIS's Emerging, Foundational Tech Effort

Republican lawmakers again threatened to remove export control responsibilities from the Commerce Department if it doesn’t move faster to issue restrictions over emerging and foundational technologies, doubling down on criticism levied at agency officials for months. The latest threat, sent in a June 15 letter to Commerce Secretary Gina Raimondo and signed by 10 Republican senators, highlights the tension between an agency that wants to avoid rushing into overbroad controls that could harm U.S. companies and lawmakers who say Commerce is neglecting a congressional mandate to restrict sensitive exports to China.

The senators said the agency’s “slow pace” to control exports of technologies under the Export Control Reform Act of 2018 has been “deeply troubling.” Although they said Commerce and its Bureau of Industry and Security have sought expert advice and public comments on those controls, those efforts “have only resulted in a limited set” of export restrictions. They also criticized Commerce for not yet releasing a foundational technology export control.

“The Department of Commerce's unwillingness to implement these clear, essential mandates after nearly three years calls into question the department's central role in the U.S. export control system,” said the letter, which was signed by Sens. Tom Cotton of Arkansas, Cynthia Lummis of Wyoming, Marco Rubio of Florida, Thom Tillis of North Carolina and other Republican hard-liners on China. “If Commerce continues to delay its implementation of key national security priorities like the emerging and foundational technologies lists, Congress may be forced to consider entrusting these tasks and other export control authorities to a department that can approach trade and investment controls with the urgency required to safeguard our national security.”

Congress’ concerns aren’t new. Some lawmakers have been mulling for months whether BIS is the right agency to lead the ECRA effort and can alter the process under ECRA to expedite a potential control list (see 2104070026).

A BIS spokesperson said there is “ample evidence of progress made and ongoing” under ECRA. “Since innovation is not static and technology triggering national security concerns can evolve over time,” the spokesperson said June 16, “the goal to identify these technologies will be a continuous effort and will not be an objective that is ‘finished’ or ‘complete.’” The spokesperson added that the agency has issued 37 emerging technology controls so far, with more on the way.

The person also said BIS has imposed controls on goods “that later may be found to be foundational technologies” and pointed to its recent restrictions on companies added to the Entity List and its military and military intelligence end-use and end-user rules (see 2102190042 and 2007090075).

In their letter, the senators also said they are concerned that Commerce’s slow implementation of ECRA is hindering the work of U.S. foreign direct investment reviews (see 2010020055 and 2008240017). The jurisdiction of the Committee on Foreign Investment in the U.S. was expanded last year to include investment transactions involving critical technologies, which are partly defined as emerging and foundational technologies controlled by Commerce (see 2001140060).

“So long as these lists remain incomplete and underutilized, the federal government will lack a properly functioning export control system and foreign investment screening process,” the letter said. “CFIUS may also be constrained in its ability to screen predatory Chinese investment in emerging and foundational technologies. This leaves the United States unacceptably vulnerable to China's economic predation.” The BIS spokesperson said all 37 of the emerging technology restrictions it has issued fall under CFIUS’ review of critical technologies. “Additional proposals on emerging technologies are forthcoming,” the person said.

The letter comes several months after Republicans on the House’s China task force threatened to take the responsibility for ECRA away from BIS (see 2010010020) and about two weeks after a congressional commission said Commerce has failed to carry out its export control duties (see 2106020024).