BIS Expecting Continuation of China Policies Under Biden, Preparing for Emerging Tech Delays, Official Says

The Bureau of Industry and Security expects to roll out a more multilateral approach to export controls under the Joe Biden administration but does not expect any major changes to its China policies or Entity List decisions, a senior Commerce Department official said. The official pointed to the strong bipartisan support among lawmakers for Chinese sanctions and export controls, which likely will continue under a new administration. “I don't see that going away. I think the Hill is engaged. I think at least from what President-elect Biden has announced with his Cabinet, these are folks who are familiar with the national security issues,” the official, who declined to be named in order to speak candidly about BIS, said in an interview last week. “So I don't expect a lot of substantive change.”

The official said they hope the new administration remains “highly focused” on Chinese civil-military fusion, an issue at the center of many of the Trump administration’s foreign policy actions toward China. The person is “optimistic” Biden officials will embrace BIS’s April rule that increased license requirements for exports to military end-users and for end-uses in China, Russia and Venezuela (see 2004270027), even though it created compliance challenges and confusion for some companies (see 2007090075).

“I think both China and Russia are very capable and very adaptable adversaries,” the official said. “And I think if one were to take their eye off of that, those countries are very good at filling the void.”

While BIS expects to better coordinate Chinese and other export restrictions with allies under the new administration, it is preparing for 2021 delays in some of its multilateral efforts -- particularly surrounding emerging technologies -- because of the cancellation of the Wassenaar Arrangement’s 2020 plenary. BIS expected to push through multiple multilateral controls at the plenary -- an international export control forum held every December -- but country representatives could not meet because of COVID-related travel restrictions (see 2011090045).

“Pushing that back another year is less than ideal,” the official said. The person pointed to at least one emerging technology control that will be impacted: BIS’s January rule on geospatial imagery software, which was imposed unilaterally with the intent to secure multilateral support at December’s plenary (see 2001030024 and 2004230034).

“Obviously that pushes that back a year,” the official said. “We've still been able to engage with allies, but it's a bit different doing it on a video call rather than sitting across the table and having to meet with them.”

Although Wassenaar proposals will be delayed, industry should still expect more multilateral engagement from BIS under the Biden administration, the official said. “I think we might see some emphasis on different messages,” the person said. “I think we may be a little more loudly embracing allies.” The official declined to say whether the incoming Biden administration has reached out to BIS. The Biden transition team didn’t comment.

The official said they were proud of what BIS accomplished under the Trump administration and the number of rules the agency was able to clear, especially during the pandemic. The person also said BIS was able to process license requirements during the pandemic at the same or a better rate than before officials were required to telework. “Getting anything through the interagency is itself a feat, even if everyone is rolling in the same direction,” the official said. “The team has been frankly unflappable in getting their work done.”

BIS was criticized by lawmakers, including House Republicans this year (see 2010010020), for moving too slowly to impose emerging technology controls under the Export Control Reform Act of 2018. While the official said “some” of the criticism was justified, the person also called the comments “a little overblown,” pointing to BIS’s 37 emerging technology controls so far and the August release of its pre-rule for foundational technologies (see 2008260045).

“I think it's been a talking point that has been frankly recycled over the last year and a half,” the official said. “I think the Hill always wants everything to move faster. The official added that “getting things through the interagency is not as easy as getting it through a single office or a single committee of Congress.” BIS does not yet have a timeline for releasing its first set of foundational technology controls, the official said.

BIS may also be involved in controlling exports of a potential COVID-19 vaccine once it becomes commercially available, the official said. But final decisions on those restrictions will come from higher levels of the new administration. “I think it could fall under our [regulations], and I think that’s going to be the essence of a whole-of-government discussion,” the official said. “That's going to require just about every agency to have a seat at that table.”

Although the Biden administration is expected to take BIS in a more multilateral direction, the official said Trump’s foreign policy decisions will continue to be felt. The official said BIS holds more status than before Trump took office. “The secret about us is out,” the official said. “I think that'll be [Trump’s] lasting legacy. We're a smallish bureau within the Department of Commerce that I think is fair to argue now has an outsized influence.”