BIS Considering Creating License Amendment Process
The Bureau of Industry and Security is working on a proposed rule that would create a formal license amendment process, which could allow applicants to revise certain license information rather than start over with a replacement application, said Tim Mooney, an official in BIS’s regulatory policy division. BIS drafted a version of the proposed rule toward the end of the Obama administration, Mooney said, but the idea was nixed after some interagency disagreements about the rule’s scope.
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But Mooney said officials still think a license amendment process would be helpful, and the agency hopes to make progress on the rule next year. “Hopefully we're going to get that draft proposal back on track,” he said during a Dec. 14 meeting of the Regulations and Procedures Technical Advisory Committee. “We do intend to update it in 2022, and hopefully it'll be something you'll see sometime in the fairly near future.”
Mooney made the announcement after a presentation from the Computing Technology Industry Association, which said amending a license would be much more efficient for exporters than seeking a replacement license, especially for deemed exports. Juhi Tariq, a CompTIA official, said members sometimes receive “non-standard conditions” from BIS as part of the agency’s response to their license application, and companies often have no way to appeal the conditions or revise their application without starting over.
“Many companies have reported receiving licenses with non-standard conditions and no streamlined way to seek an amendment of a BIS license apart from seeking a replacement license, which appears to trigger an essentially de-novo review process,” Tariq said during the RPTAC meeting. She said BIS should first send any non-standard conditions to the applicant for “review and comment” before issuing the conditions in the agency’s response to an application, which doesn’t always happen.
“This would allow industry to work with BIS to understand concerns about a particular deemed export license application on a timely basis and provide information as needed,” Tariq said.
Mooney didn’t say whether the rule being considered by BIS would apply to only deemed exports or a broader range of license applications. But if the proposal is adopted, he said it would likely be rolled out as a “limited’ pilot program. “There's a lot of different aspects to it that we need to look at with the other agencies to get everybody on the same page,” Mooney said. “But it is something where there is a draft rule.”
Tariq also urged BIS to update its guidelines for deemed export license applications, which she said was issued in 2014 and is out of date. BIS officials often request much more detailed information from applicants beyond what the guidelines describe -- including LinkedIn profiles of the deemed export recipient and their travel histories -- which can slow down the licensing process. “The specificity of this information is not included in the guidelines,” she said. “Companies have found it generally difficult to plan for what information to include in the license application and predict when a prospective hire will be able to begin work.”