The U.S. government’s primary export control regulator – the Bureau of Industry and Security (BIS) within the Commerce Department – issued a new rulemaking to remove barriers from U.S. companies’ participation in international standards-setting bodies.  So long as technology and software are subject to the lowest levels of export control, then sharing that information in the context of standards-related activities will be excluded from export control regulation. The new rule will make it easier for U.S. companies to participate in and lead these activities, without concern as to whether restricted foreign parties or representatives from embargoed countries also may be participating. 

In recent years, BIS has taken steps to address concerns that U.S. export control rules could impede U.S. companies from sharing technical information when engaged in standards-related activities. For example, following BIS’s designation of Huawei on the Entity List, which, among other things, prohibited releases of export-controlled technical information to that company, BIS issued a temporary license that authorized sharing such technical information with Huawei in the context of certain international standards development. After that license expired, BIS amended the Export Administration Regulations (EAR) to authorize more broadly the release of certain technology and software to parties on the Entity List, when those items were subject only to the lowest levels of export control (i.e., EAR99 items, items controlled for anti-terrorism reasons only, and certain encryption-controlled items) and would be released in connection with the development, adoption, or application of a standard that would be published.

U.S. industry expressed concern that the standards-related authorization in the EAR was too narrow and imposed high compliance burdens, because it only applied to Entity List parties and not to other restricted parties or countries. BIS’s latest rulemaking addresses that feedback by removing standards-related activity from the jurisdiction of the EAR, pursuant to newly added paragraph (b) to Section 734.10 (Scope of the EAR; Patents and Standards-Related Activity). Now, no export license or other authorization is required to release qualifying information to restricted parties or representatives of embargoed countries in the context of standards-setting activity, because that activity is no longer subject to export control regulation. 

To qualify for the exclusion, the technology or software must be (i) EAR99 (meaning not identified on the Commerce Control List (CCL)), (ii) controlled on the CCL only for anti-terrorism reasons, or (iii) controlled on the CCL as encryption technology or software specifically for the development, production, or use of cryptographic functionality. Moreover, the technology or software must be released in the context of a standards-related activity, which includes the development, adoption, or application of a standard (i.e., any document or other writing that provides, for common and repeated use, rules, guidelines, technical or other characteristics for products or related processes and production methods), including but not limited to conformity assessment procedures. Standards-related activities may include those taken for the purpose of developing, promulgating, revising, amending, issuing or reissuing, interpreting, implementing or otherwise maintaining or applying such a standard. The standard need not involve mandatory compliance (voluntary standards are covered), but the activity does need to be for a published standard or taken with the intent that the resulting standard will be published.

BIS’s rulemaking reflects U.S. government policy to promote U.S. industry participation in global standards development and thereby advance U.S. interests in global technology standards, particularly for critical and emerging technologies. As BIS emphasized in a press release announcing its rulemaking, U.S. industry participation in global standards development is important to U.S. national security interests.