By: Danielle Hatch
The Bureau of Industry and Security (BIS) has released a General Advisory Opinion to help field some of the many questions it has received since the addition of Huawei Technologies Co., Ltd. (Huawei) and many of its non-US affiliates to BIS’s Entity List on May 16, 2019. Most of the questions have been related to the Temporary General License (TGL) that was issued on May 20, 2019 for Huawei and its entities.
Released Guidance from BIS:
There are different types of standards bodies and their practices and procedures can vary. Some standards organizations may operate under procedures where aspects of the standards discussion and development process may be widely and freely available to the public, some may only authorize public availability of a final written work product after a standard has been adopted by the organization, others may not authorize public availability at all, and still others may engage in some mix or combination of the foregoing. All of them are likely to exchange information and technology through a variety of means, both formally and informally, in meetings and technical discussions, through the draft and review of position papers, creation and review of presentations, and examination of datasets and other materials. Regardless of whether such exchanges occur within a standards body designated or characterized as an organization that develops international standards, a consortium, or some other designation, a variety of activities in the standards setting or development context are prohibited absent a license or other authorization from BIS if any of the listed Huawei entities (or another listed entity) is involved. The Entity List-based licensing requirement will turn on whether the activity involves the exchange, transfer, or other disclosure of technology or software that is of U.S.-origin or is otherwise subject to the EAR (see Section 734.3 of the EAR), and does not involve technology or software made available to the public without restrictions upon its further dissemination (as set forth in Section 734.7). Examples of such prohibited activities include, but are not limited to, the following:
- Participating in a non-public working or study group involving the exchange, discussion, or other disclosure or release of such technology or software.
- Participating in a non-public standards or technical committee or subcommittee meeting, session, or other technical discussion, whether in person or via teleconference or videoconference, involving the exchange, discussion, or other disclosure or release of such technology or software.
- Participating in electronic exchanges within a standards body, by email or other means, that contain or attach such technology or software, including, for example, by providing access to documents or materials uploaded to or otherwise shared on a non-public or closed document repository or website.
- Releasing or otherwise providing access to blueprints, flowcharts, schematics, prototypes, or similar materials that contain such technology or software.
- Giving presentations or demonstrations in non-public settings, whether orally or via written or recorded materials, that contain disclosures of such technology or software.
- Exchanging or otherwise providing access to position papers, or drafts or edits of such materials, that disclose such technology or software without the intent of it being made publicly available in, for example, a final standard report or a manual, journal, or catalog.
These examples are illustrative; it is not feasible for BIS to specifically identify and list each type of exchange or communication of technical information that contains technology or software subject to the EAR. Other exchanges or disclosures of such information not made available to the public without restrictions upon its further dissemination (i.e., non-public exchanges or disclosures) would not fall within Section 734.7 of the EAR, as discussed above. 2 For additional guidance on specific scenarios not captured in the examples above, exporters may request an advisory opinion under the procedures described in Part 748 of the EAR. As indicated in the rule that added the 69 Huawei entities to the Entity List and in the TGL, the Entity List-based licensing requirements are in addition to any other licensing requirements that may apply.
Full Advisory Opinion: https://www.bis.doc.gov/index.php/documents/advisory-opinions/2437-general-advisory-opinion-concerning-prohibited-activities-in-the-standards-setting-or-development-context-when-a-listed-entity-is-involved/file