Change in Engagement Guidelines for Virginia Tech Faculty, Staff, and Students with respect to Huawei Technologies, Co. Ltd and Subsidiaries
In order to comply with new regulations and restrictions imposed on Huawei Technologies Co. Ltd, Virginia Tech has implemented new engagement guidelines for Virginia Tech faculty, staff, and students to protect individuals and the institution from potentially violating U.S. government regulations.
The following information is intended to serve as a general guide. Specific questions or situations should be directed to OESRC for review and direct guidance.
Q: What are the new restrictions on Huawei Technologies?
A: Since late 2018, the U.S. Government has issued new policies and regulations limiting U.S. Persons, including organizations subject to U.S. law, from specific interactions and exchanges of commodities, technologies, or software with Huawei Technologies and a large number of its subsidiary organizations. Here are three references and brief summary with largest impact:
1. H.R. 5515, The National Defense Authorization Act (NDAA) for Fiscal Year 2019. Section 889 of this act prohibits government agencies from procuring any equipment, system, or service that uses telecommunications equipment produced by Huawei or entering in a contract with an organization for the same purposes.
2. Excluded from federal contracting pursuant to GSA Exclusion List published in the System for Award Management, effective February 25, 2019.
3. Effective May 16, 2019, Huawei Technologies Co. Ltd and sixty-eight (68) non-U.S. subsidiaries were added to the Bureau of Industry and Security (BIS) Entity List. Organizations are added to the BIS Entity List when the U.S. Government determines there is reasonable cause to believe, based on specific and articulable facts, that these entities have been involved, are involved, or pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the US. As such, BIS has imposed a license requirement for all items subject to the Export Administration Regulations (EAR) and a license review policy of presumption of denial following a 90 day temporary general license effective until August 19, 2019 for certain activities.
In summary, Virginia Tech cannot procure items from Huawei for the purpose of utilizing those items on U.S.-government-funded research agreements, Virginia Tech cannot subcontract to Huawei under U.S.-government-funded research agreements, and Virginia Tech cannot exchange any commodities, technology, or software subject to the EAR with Huawei or their non-US subsidiaries cited on the Entity List.
Q: What happens if I am approached by a representative from Huawei, including possibly former Virginia Tech students now employed by Huawei?
A: As an academic institution, faculty are always encouraged to pursue new and continue existing relationships that could ultimately benefit that faculty member’s research or educational activities. That being said, Virginia Tech must comply with US government laws and regulations that may intersect with such activities. Information that is in the public domain may be discussed with employees or representatives of Huawei or any other organization on the Entity List. The guidance published here is designed to create the boundaries of any future interactions under the current conditions. As long as Huawei is on the Entity List, interactions with employees must be limited strictly to publically available/published information. Be advised that Virginia Tech will not enter into any type of collaboration or agreements with Huawei or any subsidiaries as the risk of such collaborations to violate the prohibitions set forth by the regulations is too great with effectively zero mitigation opportunities.
Q: What opportunities exist to collaborate with US-based subsidiaries of Huawei or non-US based subsidiaries not listed on the Entity List?
A: According to Bureau of Industry and Security (BIS) FAQs, the licensing and other obligations imposed on a listed entity do not per se apply to its subsidiaries or other legally distinct affiliates that are not on the Entity List. That being said, BIS also cites a warning: “If, however, such a company, or even an unaffiliated company, acts as an agent, a front, or a shell company for the listed entity in order to facilitate transactions that would not otherwise be permissible with the listed entity, then the company is likely violation, inter alia, General Prohibition 10, EAR section 764.2(b) (causing, aiding, or abetting a violation) and possibly other subsections of 764.2 as well.” As such, Virginia Tech shall conduct a review of any proposed collaborations with any known Huawei subsidiary and conduct due diligence on whether said organization may pose unacceptable risk of violating the EAR subsection 764.2 prior to entering into any formal relationships or agreements with such an organization.
Q: As a faculty member, may I host a visitor that is currently employed by Huawei or a subsidiary, either also listed on the Entity or otherwise?
A: The BIS FAQs states that employees of organizations on the Entity List are subject to the same licensing requirements and policies specific to their employer. This applies to officers, trustees, and other persons in a similar position for the organization. Virginia Tech has procedures in place to address visitors from an Entity, so please contact OESRC to discuss the process and risks involved with a proposed visitor from an organization listed or affiliated with an Entity.
Q: Can Virginia Tech hire an individual previously employed by Huawei?
A: As long as the employment with Huawei is not current (a distinct and provable break in employment), the previous affiliation creates a “red flag” which requires additional level of due diligence before proceeding with the hiring process. If no such break in employment can be documented, the individual will be treated as a current Huawei employee subject to the restrictions imposed by the Entity List.
Q: Where can I find more information about the restrictions imposed by the Entity List designation?
A: A great source of information, several of which have been cited already, is the BIS published FAQs on the Entity List which can be found here.
If you have any additional questions, please contact our office at firstname.lastname@example.org.