Commerce Clears Way for U.S. Companies to More Fully Engage in Tech Standards-Development Bodies

U.S. Secretary of Commerce Wilbur Ross announced a new rule today ensuring U.S. industry’s ability to more fully contribute to standards-development activities in the telecommunications sector. International standards serve as the critical building blocks for technological development by enabling functionality, interoperability, and safety. U.S. participation and leadership in standard-setting influences the future of 5G, autonomous vehicles, artificial intelligence, and other cutting-edge technologies.

“The United States will not cede leadership in global innovation. This action recognizes the importance of harnessing American ingenuity to advance and protect our economic and national security,” said U.S. Department of Commerce Secretary Wilbur Ross. “The Department is committed to protecting U.S. national security and foreign policy interests by encouraging U.S. industry to fully engage and advocate for U.S. technologies to become international standards.”

This action is meant to ensure Huawei’s placement on the Entity List in May 2019 does not prevent American companies from contributing to important standards-developing activities despite Huawei’s pervasive participation in standards-development organizations.

Under the new Bureau of Industry and Security (BIS) rule, technology that would not have required a license to be disclosed to Huawei before the company’s placement on the Entity List can be disclosed for the purpose of standards development in a standards-development body without need for an export license. In amending the Huawei Entity Listing, the rule promotes U.S. national security and foreign policy interests by facilitating U.S. leadership in standards-development bodies.

The general advisory opinion posted by BIS on August 19, 2019, is no longer in effect. The Department will continue to engage with stakeholders and take the actions necessary in the interest of U.S. national security and foreign policy.

Background:

• In 2019, BIS added Huawei Technologies Co., Ltd and its foreign affiliates (collectively, “Huawei”) to the Entity List under the Export Administration Regulations (EAR) because Huawei posed a significant risk of involvement in activities contrary to the national security or foreign policy interests of the United States.

• Sent to the Federal Register on Friday, June 12, the action authorizes the release of U.S. technology designated as EAR99 or controlled only for Anti-Terrorism reasons on the Commerce Control List without a license, in the context of “voluntary consensus standards bodies” of which Huawei is a participant, for the purpose of contributing to the revision or development of a “standard,” as defined in Office of Management and Budget Circular A-119 (Rev. 2016).

The rule returns U.S. industry to the status quo ante, from an Entity List perspective, with respect to disclosures of such technology to Huawei and its affiliates in legitimate standards development contexts only, and not for commercial purposes. Disclosures for commercial purposes remain “subject to the EAR” and are still subject to recordkeeping and all other applicable EAR requirements.

President’s Advisory Commission on Asian Americans and Pacific Islanders (PAC-AAPI) Convenes Inaugural Open Meeting and Virtual Listening Session

WASHINGTON – On May 20th, the President’s Advisory Commission on Asian Americans and Pacific Islanders convened its Inaugural Open Meeting with all fourteen (14) Commissioners in attendance. U.S. Secretary of Commerce Wilbur Ross and U.S. Secretary of Transportation Elaine L. Chao, Co-Chairs of the White House Initiative on Asian Americans and Pacific Islanders, provided welcoming remarks at the meeting, which commenced with the official swearing-in ceremony of Commissioner Helen Van Etten of Kansas.

The Commission is tasked by President Trump’s Executive Order to provide advice to the President, through the Secretary of Commerce and the Secretary of Transportation, on how to broaden access by Asian Americans and Pacific Islander (AAPI) employers and communities to economic resources and opportunities.

“We appreciate your advocacy for the more than 1.9 million AAPI-owned businesses, and for the 22 million Asian Americans and Pacific Islanders, many of whom have been so adversely impacted by the pandemic,” said Secretary Wilbur Ross in his welcome remarks. “Your work on their behalf is more important than ever before. Secretary Chao and I look forward to your advising us and President Trump on how best the U.S. government can serve this vibrant and growing American community.”

Secretary Elaine L. Chao highlighted the four areas that both the Commission and the White House Initiative on Asian Americans and Pacific Islanders are focused on: Passing the Torch, Breaking the Glass Ceiling, Bridging the Income Gap, and AAPI Women in Leadership. In highlighting the ways the AAPI community can better take advantage of federal resources and opportunities, she shared: “Secretary Ross and I recently signed a letter to re-establish the White House Initiative Interagency Working Group. This group consists of representatives from throughout the federal government who will advise the Initiative on the implementation and coordination of Federal programs as they relate to Asian Pacific American access to economic resources and opportunities.”

Dr. Paul Hsu, Chair of the Commission, provided opening remarks and convened the meeting by addressing the task at hand: “President Trump has clearly outlined in his Executive Order that our mission is to improve the lives of all AAPIs and their communities, which will always be our guiding principle and our roadmap. That is exactly why we are here today.”

The President’s Advisory Commission on Asian Americans and Pacific Islanders also convened its first virtual AAPI Business Town Hall with business owners, chambers of commerce and business associations on Tuesday, May 19th, a day prior to the open meeting. Chair of the Commission Dr. Paul Hsu and Commissioner Herman Martir facilitated this listening session hosted by the White House Initiative on Asian Americans and Pacific Islanders. About 200 AAPI business and community leaders participated with many of the Commissioners also in attendance.

As the Commission prepares its advisory reports, these town halls and listening sessions reflect the mission and importance of the Asian American and Pacific Islander community to our country. Many of the speakers provided insight on how the COVID-19 (coronavirus) outbreak has affected AAPI-owned businesses across different states and U.S. territories, including Guam and American Samoa. Town hall speakers represented 9 different states and U.S. territories, while audience participants hailed from 31 different states and territories. In response to concerns about harassment of AAPIs due to the virus, the Initiative and interagency working group are coordinating with the U.S. Department of Justice to ensure active engagement with local communities on addressing these issues.  

These public forums also provided a platform for federal officials and trade groups to highlight resources and opportunities. At the AAPI Business Town Hall, the U.S. Census Bureau provided a presentation on the Small Business Pulse Survey, which asks small businesses to share the impact of the COVID-19 (coronavirus) outbreak on their business. There was also an update on the ongoing 2020 Census, including the latest response rate, information about the extended window for response to the Census, highlights of the partnership and outreach campaign, and ideas about virtual ways that partners can support the Census in the upcoming months. The U.S. Census Bureau’s partnership program is working with more than 6,000 organizations across the country that serve Asian American and Pacific Islander communities.

Following the U.S. Census Bureau, the Small Business Roundtable, a coalition of leading small business and entrepreneurship organizations, presented a read out of their State of Small Business Report. This report will be the first of an ongoing series that tracks the activities of small businesses across the country.

Commerce Department to Add Two Dozen Chinese Companies with Ties to WMD and Military Activities to the Entity List

WASHINGTON (May 22, 2020) – The Department of Commerce’s Bureau of Industry and Security (BIS) announced it will add 24 governmental and commercial organizations to the Entity List for engaging in activities contrary to the national security or foreign policy interests of the United States. The entities, based in China, Hong Kong, and the Cayman Islands, represent a significant risk of supporting procurement of items for military end-use in China.

DOL ISSUES FINAL RULE TO SIMPLIFY RETAIL OR SERVICE ESTABLISHMENT EXEMPTION

WASHINGTON, DC – The U.S. Department of Labor today announced a final rule to provide greater simplicity and flexibility to retail industry employers.

Provisions in the Fair Labor Standards Act (FLSA) allow employers in retail and service industries to exempt certain employees paid primarily on a commission basis from overtime.

Today’s rule withdraws two provisions from the Department’s Wage and Hour Division regulations. The first listed industries that the Department previously viewed as having “no retail concept,” which made them ineligible to claim the exemption. The second listed industries that, in the Department’s view, “may be recognized as retail,” and were potentially eligible for the exemption. As the rule explains, some courts have questioned whether these lists lack any rational basis.

By withdrawing these two lists, establishments in industries that had been on the non-retail list may now assert that they have a retail concept and—if they meet the existing definition of retail and other criteria—may now qualify for the exemption. Insofar as these establishments were deterred from availing themselves of the exemption and its flexibilities, they may now do so if they qualify—including by having more flexibility to work with workers on commission-based pay arrangements. For these employers and workers, they could consider whether, for instance, more commission-based pay is sensible.

Establishments in industries that were on the “may be” retail list may continue to assert they have a retail concept.

Moving forward, the Department will apply the same analysis to all establishments to determine whether they have a retail concept and qualify as retail or service establishments, promoting greater simplicity and flexibility for employers and workers alike.

“This final rule unshackles job creators in the retail space who had previously been categorically excluded from the exemption without notice and comment,” said Wage and Hour Division Administrator Cheryl Stanton. “Permitting all retail employers to potentially qualify for this exemption can increase flexibility for businesses and workers. Eliminating confusion empowers job creators to grow their businesses, comply with the law and provide even more good jobs for American workers.”

The Department is issuing this rule without notice and comment, and it will take immediate effect. Neither notice and comment nor a delayed effective date are needed because both lists being withdrawn were interpretive regulations originally issued in 1961 without notice and comment or a delay.

DOC Issues Expected Final 90-Day Extension of Temporary General License Authorizations

The U.S. Department of Commerce announced today it is extending the terms of the existing Temporary General License (TGL) authorizations for Huawei Technologies Co. Ltd. and its non-U.S. affiliates (Huawei) on the Entity List for 90 days. The terms and duration of any future general licenses will be announced prior to the expiration of this 90-day time period.

This announcement follows public comments received from numerous companies, associations, and individuals about the TGL. The Department continues to assess the national security and foreign policy implications of companies and individuals that have not yet transitioned from Huawei equipment.

The 90-day extension provides an opportunity for users of Huawei devices and telecommunication providers—particularly those in rural U.S. communities—to continue to temporarily operate such devices and existing networks while hastening the transition to alternative suppliers.

In announcing this extension, the Department is also notifying the public that activities authorized in the TGL may be revised and possibly eliminated after August 13, 2020. Companies and persons relying on TGL authorizations should begin preparations to determine the specific, quantifiable impact of elimination if they have not done so already. Those companies and persons should be prepared to submit license applications to the Department to determine which, if any, activities will be authorized in the event that their TGL authorization is eliminated. The Department will provide prior notice via the Federal Register of a need to submit such applications.

The Bureau of Industry and Security (BIS) in the Department of Commerce is responsible for overseeing these export control activities. BIS’s mission is to advance U.S. national security and foreign policy objectives by ensuring an effective export control and treaty compliance system and promoting continued U.S. strategic technology leadership. BIS is committed to restricting U.S.-origin commodities and technology from use in support of Weapons of Mass Destruction projects, terrorism, or destabilizing military modernization programs.

Secretary of Commerce allocates $300 million in CARES Act aid to U.S. fishermen and seafood industries impacted by COVID-19

WASHINGTON – Today, Secretary of Commerce Wilbur Ross announced the allocation of $300 million in economic relief to U.S. fishermen and seafood industries impacted by the COVID-19 pandemic. The funds were allocated as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), signed into law on March 27 by President Trump.

Commercial fishing, charter/for-hire businesses, qualified aquaculture operations, processors, and parts of the seafood sector in coastal states and territories are among those eligible to apply for funds. Tribes are also eligible for funding including for any negative impacts to subsistence, cultural, or ceremonial fisheries. The Department of Commerce’s National Oceanic and Atmospheric Administration (NOAA) will work with the three Interstate Marine Fishery Commissions, organizations with a demonstrated track record of success in disbursing funds, to quickly deliver financial assistance into the hands of those who need it.

“This relief package will support America’s fishermen and our seafood sector’s recovery,” said U.S. Department of Commerce Secretary Wilbur Ross. “Thank you President Trump, Secretary Mnuchin, and our Congressional leaders of both parties for your work to pass the historic legislation that is bringing much needed relief to America’s fishermen. This Administration stands with the men and women working to provide healthy and safe seafood during this uniquely challenging time, while our U.S. fisheries work to continue to support 1.7 million jobs and to generate $200 billion in annual sales. The Nation is grateful to our fishermen for their commitment.”

Acting NOAA Administrator Neil Jacobs, Ph.D., lauded today’s announcement.

“For generations, our coastal communities have taken great pride in delivering protein-rich seafood to dinner tables across the country and enabling access to our world class recreational fisheries,” said Jacobs. “NOAA thanks our partners in the interstate marine fisheries commissions, states, territories, and tribes for their assistance. Together, we will work to distribute these funds as quickly as possible.”

In addition to these funds, the President recently signed into law other Federal financial assistance programs, including several programs at the Small Business Administration and U.S. Department of Agriculture, that can provide help to fishermen and related businesses.

DOC to Initiate Section 232 Investigation into Mobile Crane Imports

WASHINGTON – U.S. Secretary of Commerce Wilbur Ross announced today that the Department will initiate an investigation into whether the quantities or circumstances of mobile crane imports into the United States threaten to impair the national security. This decision follows a petition filed by domestic producer, The Manitowoc Company, Inc. (Manitowoc), on December 19, 2019, requesting that the Department of Commerce launch an investigation into mobile crane imports under Section 232 of the Trade Expansion Act of 1962, as amended.  The investigation, to be conducted by the Department’s Bureau of Industry and Security, will provide the opportunity for public comment once the rule is posted in the Federal Register.

“We will conduct this review thoroughly and expeditiously,” said Secretary Ross. “This investigation will help determine whether mobile cranes are being imported in such quantities or under such circumstances as to threaten to impair U.S. national security.”

Manitowoc alleges that increased imports of low-priced mobile cranes, particularly from Germany, Austria, and Japan, and intellectual property (IP) infringement by foreign competition,have harmed the domestic mobile crane manufacturing industry.The Department of Homeland Security has identified mobile cranes as a critical industry because of their extensive use in national defense applications, as well as in critical infrastructure sectors.

The petitioner claims the low-priced imports and IP infringement resulted in the closure of one of its two production facilities in the United States and eliminated hundreds of skilled manufacturing jobs in Wisconsin.  Manitowoc cites the U.S. International Trade Commission’s (USITC) Dataweb to note that imports of mobile cranes increased 152% between 2014 and 2019, and a 2015 finding that a Chinese manufacturer misappropriated six trade secrets and infringed on a patent, resulting in the USITC banning the sale of a Chinese crane in the United States.

Commerce Tightens Restrictions on Technology Exports to Combat Chinese, Russian and Venezuelan Military Circumvention Efforts

The Department of Commerce announced today new export control actions to prevent efforts by entities in China, Russia, and Venezuela to acquire U.S. technology that could be used in development of weapons, military aircraft, or surveillance technology through civilian supply chains, or under civilian-use pretenses, for military end uses and military end-users.

“It is important to consider the ramifications of doing business with countries that have histories of diverting goods purchased from U.S. companies for military applications,” said Department of Commerce Secretary Wilbur Ross. “Certain entities in China, Russia, and Venezuela have sought to circumvent America’s export controls, and undermine American interests in general, and so we will remain vigilant to ensure U.S. technology does not get into the wrong hands.”

Specifically, the rule changes include:

  • Expansion of Military End Use/User Controls (MEU)
    Expands MEU license requirements controls on China, Russia, and Venezuela to cover military end-users in all three countries, as well as items such as semiconductor equipment, sensors, and other technologies sought for military end use or by military end-users in these countries.
  • Removal of License Exception Civil End Users (CIV)
    Removes a license exception for exports, reexports, or transfers (in-country) to civilian
    end-users in countries of national security concern for National Security- (NS) controlled items.
  • Elimination of License Exception Additional Permissive Reexports (APR) Provisions
    Proposes to eliminate certain provisions of a license exception for partner countries involving the reexport of NS-controlled items to countries of national security concern to ensure consistent reviews of exports and reexports of U.S. items.

The Bureau of Industry and Security (BIS) in the Department of Commerce is responsible for overseeing these export control activities. BIS’s mission is to advance U.S. national security and foreign policy objectives by ensuring an effective export control and treaty compliance system and promoting continued U.S. strategic technology leadership. BIS is committed to restrict U.S.-origin commodities and technology from use in support of Weapons of Mass Destruction (WMD) projects, terrorism, or destabilizing military modernization programs. For more information, please visit www.bis.doc.gov.

USPTO announces extension of certain patent and trademark-related timing deadlines

USPTO announces extension of certain patent and trademark-related timing deadlines under the Coronavirus Aid, Relief, and Economic Security Act

The United States Patent and Trademark Office (USPTO) today announced extensions to the time allowed to file certain patent and trademark-related documents and to pay certain required fees. These actions are an exercise of temporary authority provided to the USPTO by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) signed by President Trump on March 27. 

“Inventors and entrepreneurs are the lifeblood of our economy, and we recognize that many of them are having difficulty as a result of COVID-19,” said Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office Andrei Iancu. “As a result, we are working to provide as much relief as possible to our stakeholders, consistent with our ability to maintain the USPTO’s fee-funded operations. We are especially mindful of the outsized impact on small businesses and independent inventors, and we have provided additional relief for these groups. Ultimately, our goal is to ensure not only that inventors and entrepreneurs can weather the storm, but that they can also hit the ground running once it passes.” 

The USPTO has made operational adjustments to keep its employees and the public safe as it remains open for business. In-person meetings, such as hearings and examiner interviews, are being conducted virtually by phone and video until further notice.

SBA & Treasury Begin Unprecedented Public-Private Mobilization Effort to Distribute Funds

Following President Trump’s signing of the historic Coronavirus Aid, Relief, and Economic Security (CARES) Act, SBA Administrator Jovita Carranza and Treasury Secretary Steven T. Mnuchin today announced that the SBA and Treasury Department have initiated a robust mobilization effort of banks and other lending institutions to provide small businesses with the capital they need.

The CARES Act establishes a new $349 billion Paycheck Protection Program. The Program will provide much-needed relief to millions of small businesses so they can sustain their businesses and keep their workers employed.

“This unprecedented public-private partnership is going to assist small businesses with accessing capital quickly. Our goal is to position lenders as the single point-of-contact for small businesses – the application, loan processing, and disbursement of funds will all be administered at the community level,” said Administrator Carranza. “Speed is the operative word; applications for the emergency capital can begin as early as this week, with lenders using their own systems and processes to make these loans. We remain committed to supporting our nation’s more than 30 million small businesses and their employees, so that they can continue to be the fuel for our nation’s economic engine.”

“This legislation provides small business job retention loans to provide eight weeks of payroll and certain overhead to keep workers employed,” said Secretary Mnuchin. “Treasury and the Small Business Administration expect to have this program up and running by April 3rd so that businesses can go to a participating SBA 7(a) lender, bank, or credit union, apply for a loan, and be approved on the same day.  The loans will be forgiven as long as the funds are used to keep employees on the payroll and for certain other expenses.”

The new loan program will help small businesses with their payroll and other business operating expenses. It will provide critical capital to businesses without collateral requirements, personal guarantees, or SBA fees – all with a 100% guarantee from SBA. All loan payments will be deferred for six months. Most importantly, the SBA will forgive the portion of the loan proceeds that are used to cover the first eight weeks of payroll costs, rent, utilities, and mortgage interest.

The Paycheck Protection Program is specifically designed to help small businesses keep their workforce employed. Visit SBA.gov/Coronavirus for more information on the Paycheck Protection Program.