By Senior Associate Michael Jones

Yet another U.S. export control rule involving exports to Huawei and similar companies is about to take effect. It’s worth noting that the new interim rule from the U.S. Commerce Department’s Bureau of Industry and Security (BIS) relaxes current export restrictions, specifically on contributions to standards bodies.

Effective June 18, 2020, BIS is rescinding their August 2019 Advisory Opinion prohibiting sharing of non-published information with Huawei at meetings of standards bodies. The new rule allows technical information that is classified as either EAR99 or controlled for Anti-Terrorism Reasons only (AT1) to be shared with any member of a standards organization, including entities that have been placed on one of the restricted entity lists by BIS, including Huawei. The technical information can only be shared if such a release is made for the purpose of contributing to the revision or development of a “standard” in a “standards organization.”

The U.S. government has defined standards as those that are “developed or adopted by voluntary consensus standards bodies, both domestic and international,” and defined a standards organization as “domestic or international organizations which plan, develop, establish, or coordinate voluntary consensus standards using agreed-upon procedures.” The revised rule does not specifically define “contributing to the revision or development of a standard,” but a reasonable interpretation of that phrase might include activities and releases that are directly related to the revision or development of the standard.

Under this revised rule, researchers and developers will not be committing an export violation if they release information at a standards bodies meetings or as part of a contribution to the standard, so long as the technology being released either EAR99 or restricted under U.S. export control law for only AT1 reasons.  Releases to restricted entities that are not for the purpose of contributing to the standard remain prohibited.

As BIS has requested comments on this interim rule within 60 days, it is possible that the agency may further revise export control rules. Procopio attorneys will continue to monitor these ever-changing rules to provide the most up-to-date guidance to help clients continue to maintain full legal compliance.