BIS Asked to Align Standards-Setting Rules With Fundamental Research Controls

U.S. companies and trade groups applauded a recent Bureau of Industry and Security rule that expanded the agency’s export control exemption for certain standards-setting activities, saying the change will help remove licensing barriers faced by American officials at international bodies working on emerging technology standards. But at least one group asked BIS to continue expanding the exemption to cover a wider set of technologies discussed in standards bodies involving the electronics, telecommunications and aviation industries.

Boeing, the Aerospace Industries Association and others lauded the changes, with Boeing calling them “significant and important enablers for robust U.S. participation in standards related activities.” And while the Technology Trade Regulation Alliance also welcomed the updates, the group said BIS should go further, including by harmonizing its standards setting-related controls with how it treats other information considered to be shared publicly, such as fundamental research.

The rule “appears inconsistent with the BIS approach to other First Amendment protected commercial speech,” the alliance said.

BIS issued rules in 2020 and 2022 to authorize the release of certain controlled technology for certain standards-setting activities, including when companies on the Entity List, such as Huawei, are participating in those bodies (see 2006160035 and 2209080038). After hearing that its export controls were still causing uncertainty among American companies and risked ceding U.S. standards leadership to other countries, the agency in July carved out a range of low-level technology and software from licensing requirements if they meet certain standards-setting body criteria under the Export Administration Regulations (see 2407170025).

While those changes were a “welcome step concerning Entity List parties,” Boeing noted in public comments issued this month that they still didn’t cover broader end use and end-user controls, “which remained an impediment. The new amendments ensure comprehensive relief that will strengthen U.S. leadership in these global fora.”

Boeing said the rule will specifically help it and “many” other American aerospace firms participate in the U.N.’s International Civil Aviation Organization (ICAO), which is working on standards for aircraft carbon emissions and noise. The new BIS updates “will assure that US companies in the aviation sector continue to shape these standards,” it said.

The Aerospace Industries Association said its members are “confident” the export control changes won’t “impede the participation and leadership of U.S. companies in standards-related activities.” Like Boeing, it called the latest rule a “significant improvement from the previous control,” which applied to only exports involving parties on the Entity List and didn’t yet cover low-level technology and software controlled under the Export Administration Regulations.

Both UL Standards & Engagement, a nonprofit standards development organization, and the Wi-Fi Alliance, a network of global internet connectivity companies, also said the rule will help their members more easily participate in standards bodies. The Wi-Fi Alliance specifically said the rule confirms that the type of standards-related activity its members are involved in “is not restricted by the Export Administration Regulations.”

The Technology Trade Regulation Alliance said its members agreed with the BIS “general approach” that the commercial benefits of sharing of certain information in published standards-related activities “outweighs the national security interest of controlling it.”

But it also said the changes aren’t broad enough. It said the exclusion applies only to items subject to anti-terrorism controls under the EAR, along with certain cryptographic items, EAR99 items and others, and doesn’t align with how BIS treats technology in the context of fundamental research or in patent-related activities.

“None of these other exclusions require an exporter to classify their technology or software before determining whether it qualifies,” TTRA said, “meaning that allowing the commercial value of such activities is deemed to outweigh the national security interest in controlling them, regardless of the relative level of sensitivity within the EAR regulatory scheme.”

In its July rule, BIS should have revised the EAR to include the “dissemination of information in ‘standards-related activities’ as just another form of publication” that’s exempt from export controls, the group said.

Though TTRA understands the BIS “motivation” to apply the export control exemption only to information that it deems “less sensitive,” it said it’s “difficult to distinguish” how sharing those items in a public standards-setting context is “materially different than disseminating them for ‘[u]nlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the interested public’ under EAR 734.7 or in the context” of certain “ordinarily published” fundamental research.

The alliance argued that BIS doesn’t have a “clear legal basis for restricting dissemination of information in public standards-related activities to only certain [Export Control Classification Numbers] and EAR99 items.”

BIS should revise the rule to add the “dissemination of technology and software in the context of ‘standards-related activity’ as another means of publishing information,” no matter how the items are classified in the EAR, the alliance said. This would be “consistent with the EAR’s approach to other First Amendment-protected commercial speech.”

If the agency rejects this proposal, TTRA said the BIS should work with its technical advisory committees and industry to at least identify other ECCNs that should be exempt. It specifically pointed to information classified under non-AT-only controlled ECCNs in categories 3, 4, and 5 of the Commerce Control List, which may include information shared within standards bodies for the electronics and telecommunications industries. The group also said certain aviation activities may involve information controlled in non-AT-only controlled ECCNs in categories 7 and 9.

Expanding the exemption to these ECCNs could “minimize the chilling effect of needing to classify technology and software prior to sharing it in the context of” standards bodies, TTRA said, adding that it hopes its comments will “significantly refine the rule.”