April 28, 2021

WASHINGTON – Today, global tech trade association ITI recommended that the U.S. Department of Commerce coordinate the implementation of its rule to secure the information and communications technology and services (ICTS) supply chain with the establishment of a viable voluntary pre-clearance/licensing process.

In comments responding to the Department’s ANPRM on Securing the ICTS Supply Chain: Licensing Procedures, ITI notes that a clear and narrowed scope with respect to the underlying rule is imperative to provide companies with the guidance and notice they need to effectively use any pre-clearance and/or licensing regime. Maintaining the current breadth of the ICTS rule not only makes it difficult to effectively implement, but also will have a major impact on the effectiveness and viability of any voluntary pre-clearance/licensing process, which will ultimately hinge on whether the process provides effective notice to companies seeking to pre-clear transactions. Further, ITI recommends that the pre-clearance/licensing process be voluntary.

Working together to narrowly tailor the existing interim final rule and additionally structure a clear, voluntary pre-clearance/licensing process will help to provide much needed certainty to businesses, strengthen our collective security, and allow for continued U.S. technological leadership and competitiveness,” ITI wrote in its comments. “We strongly encourage Commerce to continue to engage with stakeholders not only as it seeks to develop the process, but as it seeks to carry forth the rule more generally. We look forward to continuing to work with Commerce as it further narrows the rule and the associated pre-clearance/licensing process.

In addition to its high-level recommendations, ITI offered important aspects that should be included in the voluntary pre-clearance/licensing process:

  • Guidance on what transactions create national security risk that would potentially benefit from review under a voluntary pre-clearance/licensing process.
  • Use of the pre-clearance/licensing process should be voluntary and structured in the least burdensome way to address risk. A mandatory or compulsory process will grind commerce to a halt resulting in severe disruption to the economy.
  • Commerce must be adequately resourced to carry out the voluntary pre-clearance/licensing process.
  • Commerce’s period for review should be time-bound by regulation and should not result in an automatic extension/request for additional information.
  • The voluntary pre-clearance/licensing process should only require minimal data points.
  • The voluntary pre-clearance/licensing process should allow Commerce to make public the names of foreign entities whose goods and services are the subject of an approved or denied Commerce pre-clearance/license.
  • The voluntary pre-clearance/licensing process should result in the publication of categories of pre-cleared ICTS transactions that do not warrant scrutiny under the rule.
Public Policy Tags: Cybersecurity, National Security, Supply Chain