BIS’s New Approach to Identifying “Emerging and Foundational Technologies”

Date: 07/01/2022

On May 23, 2022, the U.S. Department of Commerce Bureau of Industry and Security (“BIS”) published a proposed rule identifying new unilateral export controls on four dual-use biological marine toxins, the synthesis and collection of which BIS has identified for evaluation in accordance with the criteria set forth in Section 1758 of the Export Control Reform Act of 2018 (“ECRA”).1 Section 1758 requires BIS to identify and establish appropriate controls on the export, reexport, or transfer (in-country) of “emerging and foundational technologies” that are “essential to the national security of the United States.”2 Importantly, the proposed rule announced a change in BIS’s approach to identifying new technologies of high strategic importance for control: moving forward, BIS will no longer distinguish between “emerging technologies” and “foundational technologies,” but rather “will characterize all technologies identified pursuant to Section 1758 as ‘Section 1758 technologies.’”

Identification of Emerging and Foundational Technologies To Date.

Since the enactment of ECRA on August 13, 2018, as part of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (“2019 NDAA”),3 BIS has been under pressure to swiftly identify “emerging and foundational technologies” for control. On November 19, 2018, BIS published an advance notice of proposed rulemaking (“ANPRM”), which included a list of fourteen representative emerging technology categories:

  1. Biotechnology;

  2. AI and machine learning technology;

  3. Position, Navigation, and Timing (“PNT”) technology;

  4. Microprocessor technology;

  5. Advanced computing technology;

  6. Data analytics technology;

  7. Quantum information and sensing technology;

  8. Logistics technology;

  9. Additive manufacturing (e.g., 3D printing);

  10. Robotics;

  11. Brain-computer interfaces;

  12. Hypersonics;

  13. Advanced Materials; and

  14. Advanced surveillance technologies.4

In 2019 and 2020, BIS issued four final rules related to emerging technologies, placing controls on 37 technologies during that period, including post-quantum cryptographic algorithms and law enforcement surveillance software. In 2021 and 2022, BIS placed new controls on emerging technologies, such as nucleic acid assembler software and geospatial imagery software.

With respect to “foundational technologies,” there has been even less progress. BIS’s heavily anticipated ANPRM on foundational technologies, published August 27, 2020, did not include an illustrative list of foundational technology categories like the November 19 ANPRM; however, “semiconductor manufacturing equipment and associated software tools, lasers, sensors,” as well as “underwater systems” were mentioned as possible examples of foundational technologies.5 Still, almost four years after the enactment of ECRA, BIS has identified zero “foundational” technologies pursuant to Section 1758.

Criticism of BIS in Failing to Fulfil Section 1758 Obligations.

On June 1, 2021, the U.S.-China Economic and Security Review Commission published a congressional advisory report criticizing the pace of BIS’s identification of “emerging and foundational technologies.”6 The report, titled “Unfinished Business: Export Control and Foreign Investment Reforms,” asserts that BIS has “failed to carry out its responsibilities” under ECRA. “Current progress in implementation falls short of congressional expectations for expediency in addressing a key national security concern,” the critical report argues.

On November 15, 2021, Senator Tom Cotton (R-AR), joined by nine other Republican senators, sent a letter to Secretary of Commerce Gina Raimondo urging her to direct BIS to hasten its process for identifying “emerging and foundational technologies” pursuant to Section 1758.7 The letter referenced “five technology areas key to America’s strategic competition with China,” including artificial intelligence (“AI”), quantum computing, semiconductors, biotechnology, and autonomous systems, which are being used to guide “efforts to prevent U.S. adversaries like China from acquiring technologies necessary for America’s future economic growth and military advantage.” The letter urged “BIS to emulate the Intelligence Community by identifying key American technologies that need to be safeguarded from the Chinese Communist Party,” highlighting Chinese AI firms in particular.

Continued Emphasis on Countering the CCP

Looming large over the emerging and foundational technologies conversation is the specter of China and its push for independence in the field of advanced technologies, exemplified by its state-led industrial policies, collectively dubbed “Made in China 2025,” aimed at global dominance of the high-tech manufacturing sector.

On May 25, 2022, House Foreign Affairs Committee Lead Representative Michael McCaul (R-TX-10), who also serves as Chairman of the House’s Republican China Task Force (“CTF”), denounced BIS’s “proposed change in terminology from ‘emerging’ and ‘foundational’ technology to ‘1758 technologies’” as a “blatant attempt to not live up to their responsibility to follow the 2018 law by identifying foundational technology.”8 The CTF, a task force committed to “developing legislative solutions to address the Chinese Communist Party’s (“CCP”) malign global activity,” has applied constant pressure on both Congress and the White House to hold the CCP accountable for its economic policies and human rights abuses. In September 2020, the CTF released a report containing more than 400 policy recommendations – the majority of which were bipartisan – on how the U.S. can effectively counter the economic and national security threats posed by the CCP’s industrial and corporate espionage policies. On June 8, 2022, Chairman McCaul and other CTF members held a roundtable in Washington, D.C. on the effective use of U.S. export controls to prevent the CCP from acquiring dual-use U.S. technologies of high strategic importance.

Warnings about the rise of the CCP on the world stage are not limited to the Republican party. On May 26, 2022, Secretary of State Antony Blinken gave a speech affirming the current administration’s priority of countering the CCP, calling “China… the only country with both the intent to reshape the international order and, increasingly, the economic, diplomatic, military, and technological power to do it.” These pronouncements underscore the disquieting threat posed by the CCP’s attempts to acquire sensitive U.S. technologies and the rising geopolitical tensions between Washington and Beijing.

CFIUS Impact

The Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”) was also enacted as part of the 2019 NDAA. The FIRRMA strengthened and modernized the process by which the Committee on Foreign Investment in the United States (“CFIUS”) reviews certain transactions involving foreign investment in the United States and certain real estate transactions by foreign persons to determine the effect of such transactions on U.S. national security. Importantly, FIRRMA references Section 1758 of ECRA for purposes of defining “critical technologies” subject to CFIUS’s mandatory notification requirement.9 For example, the four marine toxins and related technologies identified in BIS’s May 23 proposed rule will be considered “critical technologies” for purposes of CFIUS review if the corresponding final rule is published.

BIS hopes its removal of the distinction between “emerging” and “foundational” technologies will expedite the process for identifying relevant technologies and implementing appropriate controls. In its May 23 proposed rule, BIS clarified that its new characterization of “Section 1758” technologies “will not affect the designation of ‘critical technologies,’ for purposes of [CFIUS] screenings,” nor will it “affect the scope of controls on any technologies controlled consistent with Section 1758 of ECRA.”

BIS’s decision to forego the distinction between “emerging” and “foundational” technologies does not change the interaction between ECRA and FIRRMA. However, companies dealing with “Section 1758 technologies” should be aware of their potential obligations under FIRRMA and related CFIUS regulations pertaining to “critical technologies” (for more information, see our previous article, CFIUS Regulations & Export Controls Impacting CFIUS Scrutiny).

CET List

Distinct from BIS’s ongoing efforts to identify “emerging and foundational technologies” as required by Section 1758, in February 2022, the interagency National Science and Technology Council (“NSTC”) Subcommittee on Critical and Emerging Technologies published its updated Critical and Emerging Technologies (“CET”) List. The CET List will “inform forthcoming strategy on U.S. technological competitiveness and national security.”10 Though the CET List is separate from the running list of “emerging and foundational technologies” mandated by ECRA, the lists have many technologies in common, such as biotechnology, AI, and hypersonics. Some notable technologies present in the CET List but missing from BIS’s list above include advanced gas turbine engine technologies, financial technologies (“fintech”), and advanced nuclear energy technologies, including fusion energy.

Only time will tell whether BIS’s new approach to identifying “Section 1758 technologies” will enable quicker and more comprehensive identification of emerging and foundational technologies essential to U.S. national security. In the meantime, companies dealing with cutting-edge technologies of strategic importance to the U.S. should stay tuned for the latest developments in this rapidly evolving area of law.


If you have questions concerning BIS’s identification and control of “emerging and foundational technologies” pursuant to Section 1758 of ECRA or your company deals with any of the technologies discussed above, feel free to contact the attorneys at Torres Trade Law, PLLC.

1 Commerce Control List: Controls on Certain Marine Toxins, 87 Fed. Reg. 31,195 (May 23, 2022), available at

2 The ECRA is codified at 50 U.S.C. §§ 4801-4852. Section 1758 of ECRA (Requirement to identify and control the export of emerging and foundational technologies) is codified at 50 U.S.C. § 4817.

3 Pub. L. No. 115-232.

4 Review of Controls or Certain Emerging Technologies, 83 Fed. Reg. 58,201 (Nov. 19, 2018), available at

5 Identification and Review of Controls for Certain Foundational Technologies, 85 Fed. Reg. 52,934 (Aug. 27, 2020), available at

6 Rafaelof, Emma, “Unfinished Business: Export Control and Foreign Investment Reforms,” U.S.-China Economic and Security Review Commission (June 1, 2021), available at

7 Letter from Senator Tom Cotton to Secretary of Commerce Gina Raimondo (Nov. 15, 2021), available at

8 “McCaul on BIS Decision to Change Terminology, Dodge Statutory Responsibility,” Foreign Affairs Committee Press Release (May 25, 2022), available at

9 Section 721(a)(6)(A) of the Defense Production Act of 1950, as amended, provides that the term “critical technologies” includes “[e]merging and foundational technologies controlled pursuant to section 4817 of [Title 50 of the U.S. Code].” See 50 U.S.C. § 4565(a).

10 “Critical and Emerging Technologies List Update,” Fast Track Action Subcommittee on Critical and Emerging Technologies, National Science and Technology Council (Feb. 2022), available at

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