Kevin Wolf Quoted by American Shipper on BIS Warning to US Exporters

Akin Gump international trade partner Kevin Wolf has been quoted in the American Shipper article “BIS advisory cautions tech firms in standards-setting bodies.” The article reports on the Commerce Department’s Bureau of Industry and Security (BIS) providing a warning to U.S. exporters to use caution when sharing certain technology information in global standards-setting organizations if parties on the Entity List are involved.

BIS, the article notes, released the advisory after receiving requests for clarification in response to the 90-day temporary general license (TGL) involving Huawei Technologies and 68 of its overseas affiliates and subsidiaries that were placed on the Entity List. The TGL allows U.S. exporters who meet certain regulatory conditions the ability to continue conducting business with Huawei. According to the article, U.S. and overseas information technology providers were concerned about being precluded from participating in standards-setting organizations due to the U.S. export licensing requirements invoked by Huawei’s being on the Entity List.

Wolf said most releases of technology that occur during international standards organization activities are “clearly published” as defined by section 734.7 of the Export Administration Regulations (EAR).

“With a solid understanding of the facts and advice of counsel regarding the scope of EAR section 734.7, participants can get confidence that most standards activities are not affected by the Entity List prohibitions,” he said. The BIS advisory opinion, however, was not as thorough as many technology companies had expected.

“Many standards organization participants were hoping for guidance from BIS regarding when it would consider some less clear situations to still be ‘published’ and thus not subject to the EAR,” said Wolf, who served as Assistant Secretary of Commerce for Export Administration in BIS during the Obama administration. BIS responded, however, “with examples of prohibited activities and [by] removing the general license authorizing releases to representatives of the recently listed entities of technology subject to the EAR during international 5G standards meetings.”