Telework, Pandemic Causing Delays in Huawei Licensing Decisions, BIS Official Says

The Bureau of Industry and Security is experiencing significant delays to its Huawei licensing decisions due to telework rules and the COVID-19 pandemic, a BIS official said. Communication between agencies has been hampered, the official said, leading to lengthy license adjudications and a backlog of applications.

“COVID-19 really did have a significant impact on Huawei licenses, more so than any other group of licenses,” said Eileen Albanese, director of BIS’s Office of National Security and Technology Transfer Controls. Albanese, speaking during a Jan. 15 event hosted by the Massachusetts Export Center, said the delays have been partly caused by lengthy, virtual meetings and difficulties in remotely accessing licensing platforms. “We still have a bunch that we have to go through,” she said.

Earlier in the event, Kevin Wolf, an export controls lawyer with Akin Gump, said his clients have applications that have been “pending for months and months and months,” with some dating as far back as 2019. But he also said some of his clients received a “flurry” of Huawei license adjudications that week, many of which were denials. “It seemed as if the floodgates opened up last night,” said Wolf, a former Commerce Department assistant secretary for export administration. “Maybe they're trying to clear things out before January 20.” A BIS spokesperson said the agency is continuing to work through the applications.

But Albanese said the process is being significantly slowed by the pandemic. Although Commerce can complete its licensing process remotely, she said other agencies, including the Energy, Defense and State Departments, use “a platform which is not conducive to teleworking.” That process has been complicated as more employees have been forced to work remotely. “I can say almost every week, or close to, we get a notice that there's been an infected individual and therefore a particular office or agency has closed down for two days,” Albanese said.

She also said BIS’s interagency Operating Committee -- which is designed to resolve differences in licensing decisions -- has been slowed. Before the pandemic, the committee met weekly “for two or three hours, and they’d go through 15 or 20 cases,” Albanese said. But now the committee must meet virtually, which “takes longer to discuss a case than it did when you were in a room and everybody could exchange papers and quickly exchange views.”

“Agencies have very different views on Huawei, and the fact that there was the inability for people to sit around the table, face to face, and talk about their concerns -- especially in a secured facility -- really impacted the decision-making process for Huawei licenses,” she said.

Although Albanese said industry should “probably begin to see some actions coming out soon,” she stressed that Huawei license decisions will continue to take longer than other licenses. “Making a long story short,” Albanese said, “the impact on Huawei licenses has been fairly significant with COVID-19.”