Standards-Setting Bodies Exemption Facing Lengthy Review but Still Active, BIS Official Says
The Bureau of Industry and Security hasn’t given up on a rule to clarify how U.S. companies can participate in standards-setting bodies that have members designated on the Entity List, a senior BIS official said this week. Despite yearslong clamoring for the clarification from technology associations and companies, the rule is facing a lengthy internal review process not only from other agencies but also from different bureaus within the Commerce Department, said Hillary Hess, BIS’s regulatory policy director.
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Hess, speaking during a June 13 Regulations and Procedures Technical Advisory Committee meeting, said that review process has included an “extra layer” because “there are so many Department of Commerce stakeholders in the standards-setting area.” The agency’s National Institute of Standards and Technology, for example, sought comments last year on the influence of Chinese government policies on international standards for emerging technologies (see 2111030009).
Hess also said other Commerce agencies have taken an interest, including the U.S. Patent and Trademark Office. “So there's sort of an extra intensity of Commerce review for this particular rule because of the subject matter,” Hess said.
Although BIS in 2020 amended the Export Administration Regulations to allow U.S. companies to more easily participate in standards-setting bodies in which Huawei is a member (see 2006160035), technology groups say BIS should establish a blanket exemption for certain activities at standards-setting bodies involving all members of the Entity List (see 2109150036). U.S. firms said they have been forced to avoid the bodies because they fear running afoul of U.S. export laws, a practice that could result in the U.S. losing important influence over the future of emerging technology standards (see 2112170037).
BIS has been considering expanding the exemption since at least December 2020, when the rule was first mentioned in the agency’s fall regulatory agenda (see 2012150037). Although industry has seen little public progress, Hess stressed the rule is “definitely still active.” But it hasn’t yet reached the Office of Management and Budget or other agencies outside of Commerce.
“I don't really have a timetable for it, but it's being worked on actively right now,” Hess said. “There's been a lot of work put into it.”
Hess also touched briefly on BIS’ May decision to stop differentiating between “emerging” and “foundational” technologies for the purposes of export controls required by the Export Control Reform Act (see 2205200017). BIS will still pursue the controls, but will now refer to the controlled items as 1758 technologies, a reference to Section 1758 of ECRA.
At least one lawmaker criticized the move, saying BIS is trying to dodge its statutory authority (see 2205250057). In the May decision, BIS said abandoning the effort to categorize technologies as either foundational or emerging will help it move faster and will have no effect on the actual effectiveness or scope of the restrictions.