On May 20, 2019, the Department of Commerce’s Bureau of Industry and Security (BIS) issued a 90-day temporary general license that partially restored the export licensing requirements under the Export Administration Regulations (EAR) for exports, reexports and transfers (in-country) to Huawei Technologies Co., Ltd. and its 68 affiliates (Huawei), which were added to the Entity List on May 16, 2019 (see Trump and Trade Update of May 17, 2019). The temporary general license permits these activities:
- Continued Operation of Existing Networks and Equipment, subject to other provisions of the EAR, necessary to maintain and support existing and currently fully operational networks and equipment, including software updates and patches, subject to legally binding contracts and agreements executed between Huawei and third parties on or before May 16, 2019.
- Support to Existing Handsets, subject to other provisions of the EAR, necessary to provide service and support, including software updates or patches, to existing Huawei handsets that were available to the public on or before May 16, 2019.
- Cybersecurity Research and Vulnerability Disclosure, subject to other provisions of the EAR, the disclosure to Huawei of information regarding security vulnerabilities in items owned, possessed or controlled by Huawei when related to the process of providing ongoing security research critical to maintaining the integrity and reliability of existing and currently fully operational networks and equipment, as well as handsets.
- Engagement as Necessary for Development of 5G Standards by a Duly Recognized Standards Body, subject to other provisions of the EAR, engagement with Huawei as necessary for the development of 5G standards as part of a duly recognized international standards body (e.g., Institute of Electrical and Electronics Engineers (IEEE), Internet Engineering TaskForce (IETF), International Organization for Standards (ISO), International Telecommunications Union (ITU), European Telecommunications Standards Institute (ETSI), 3rd Generation Partnership Project (3GPP), Telecommunications Industry Association (TIA), and GSM Association (GSMA or Global System for Mobile Communications)).
If an export transaction satisfies these temporary general license conditions and is limited to one or more of these activities, then BIS’s licensing policy in effect before May 16, 2019, will be applied in any review of a license application; and the authority of “no license required” (NLR) or a license exception available before May 16 will be applicable. A certification statement, however, must be prepared by any exporter making an export shipment under this temporary general license. This statement must specify how the export, reexport or transfer meets the scope of the temporary general license and must be retained by the exporter.
The temporary general license is effective through August 19, 2019, and does not relieve parties of other obligations under the EAR as to other licensing requirements for exports to the People’s Republic of China. All other transactions not “explicitly authorized” in the temporary general license remain subject to the restrictions placed on Huawei due to its addition to the Entity List, and require a license with a BIS policy of “presumption of denial.”