The U.S. Department of Commerce's (DOC) Bureau of Industry and Security (BIS) extended a waiver to allow U.S. companies to continue to do limited business with Huawei Technologies until November 18, 2019. Importantly, this final rule removes paragraph (c)(4) "Engagement as necessary for development of 5G standards by a duly recognized standards body" from the 90 day Temporary General License that was effective May 20, 2019.
The BIS notice removing paragraph (c)(4) from the Temporary General License aligns generally with the position ANSI took in its June 6 letter from ANSI President and CEO S. Joe Bhatia, to BIS, which stated that:
"In light of these Export Administration Regulations (EAR) provisions [EAR 734.3(b) and 734.7], ANSI does not believe that discussions with Huawei representatives participating in open and unrestricted standards activities are "subject to the EAR" in the first place and therefore, the recent Temporary General License does not place any additional burdens on standards development in such activities that include Huawei."
The BIS notice explains: "BIS has determined that existing provisions of the EAR suffice for purposes of addressing the application of the Entity List-based license requirements to activities in connection with standards development bodies, including 5G standards bodies."
In connection with the notice issued on August 19, BIS has posted a general advisory opinion in the FAQ section of the BIS website under "Published Technology and Software (734.7)," at https://www.bis.doc.gov/, relating to standards development activities.
As discussed in the general advisory opinion, information, including technology, that is made available to the public without restrictions upon its further dissemination would not be subject to the EAR if the existing criteria of 734.7 are met. The opinion confirms that the disclosure to any of the Huawei listed entities of technology or software subject to the EAR would be a prohibited activity absent a license from BIS.
ANSI will continue to monitor developments in this area.