BIS China Review to Take Months; No Changes Yet to Huawei Licensing, Former Official Says

Industry should expect the Biden administration’s review of Trump-era China policies -- including export controls and licensing decisions -- to take two to three months, trade lawyer Peter Lichtenbaum said. He also said the Bureau of Industry and Security will continue to adhere to the Trump administration's strict Huawei licensing policy until it’s changed by incoming political appointees, which has not yet happened.

“It seems unlikely that there will be significant changes until that China review is complete,” Lichtenbaum, who served as the Commerce Department’s assistant secretary for export administration during the George W. Bush administration, said during a Feb. 8 webinar hosted by Covington & Burling. The White House has not provided an official timeline for how long the review might take, although it is expected to examine a number of China-related trade restrictions imposed by the Trump administration during his final months in office, including export controls. The administration said late last month that the review was “just starting” (see 2101250049).

Lichtenbaum said he has heard from people who “have been appointed or may be appointed” that new leadership at Commerce and BIS will try to be “more clear'' about their policy objectives, which was an issue under the previous administration. “With Huawei,” Lichtenbaum said, “it's always been unclear exactly what the administration was driving at.”

Industry should also expect BIS to continue its strong presumption of denial for export license applications for controlled shipments to Huawei, Lichtenbaum said. “BIS has told us that the licensing policies for Huawei that was set at the end of the Trump administration will be maintained unless and until the Biden administration tells them to change it,” he said. The agency issued a flurry of denials during Trump’s final weeks in office (see 2101150062), some of which involved products that could have been incorporated into Huawei products with 5G capabilities. A BIS spokesperson declined to comment.

Biden administration officials will also “redouble” efforts to work with allies and have “given a lot of thought” to a new plurilateral regime focused on semiconductors, Lichtenbaum, said. “It would be a way to build on existing multilateral controls,” he said. BIS will also look to work more closely with industry, which was often caught off guard by rules and restrictions introduced over the last four years (see 2008210045). “Sometimes the Trump administration made policies without any public opportunity for comment, such as the military end-user rule” (see 2007090075), Lichtenbaum said. “I think there's likely to be a return to regular order where significant rules are published for public comment.”