BIS Issues Temporary General License on Certain Existing Huawei Products

Husch Blackwell LLP

Today, the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) has published a Temporary General License for specific, limited engagement in transactions with Huawei Technologies Co., Ltd. and its sixty-eight non-U.S. affiliates which were added to the BIS Entity List effective May 16, 2019. (See our previous post here).  The license is intended to allow Huawei and its affiliates to work temporarily with U.S. companies to continue to support current customers, headsets and to release software updates for existing hardware.

While the license was not published in the Federal Register until today, the temporary general license took effect on May 20, 2019 and will last for 90 days through August 19, 2019. BIS will evaluate whether to extend the license beyond 90 days.

The General License temporarily authorizes the engagement in certain transactions involving the export, reexport and transfer (in-country) of items subject to the EAR to Huawei and its sixty-eight non-U.S. affiliates as described below:

  1. “Continued Operation of Existing Networks and Equipment: BIS authorizes engagement in transactions, 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 or the sixty-eight non-U.S. Huawei affiliates and third parties on or before May 16, 2019.
  2. Support to Existing Handsets: BIS authorizes engagement in transactions, 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.
  3. Cybersecurity Research and Vulnerability Disclosure: BIS authorizes, subject to other provisions of the EAR, the disclosure to Huawei and/or the sixty-eight non-U.S. affiliates of information regarding security vulnerabilities in items owned, possessed, or controlled by Huawei or any of the sixty-eight non-U.S. affiliates 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.
  4. Engagement as Necessary for Development of 5G Standards by a Duly Recognized Standards Body: BIS authorizes, subject to other provisions of the EAR, engagement with Huawei and/or the sixty-eight non-U.S. affiliates as necessary for the development of 5G standards as part of a duly recognized international standards body (e.g., IEEE – Institute of Electrical and Electronics Engineers; IETF – Internet Engineering Task Force; ISO – International Organization for Standards; ITU – International Telecommunications Union; ETSI- European Telecommunications Standards Institute; 3GPP – 3rd Generation Partnership Project; TIA- Telecommunications Industry Association; and GSMA, a.k.a., GSM Association, Global System for Mobile Communications).”

Anyone seeking to undertake a transaction under this Temporary General License must create a certification statement which must specify how their transaction meets the scope of the Temporary General Licensee and then  retain that certification statement in accordance with the Export Administration Regulations’ record retention requirements.  Persons utilizing the Temporary General License should also be aware that any specific licensing requirements which may have applied to the designated Huawei entities before May 16, 2019 apart from their Entity List designations will continue to apply to transactions performed under the Temporary General License.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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