BIS Limiting Public Access to Advisory Committees, Sparking Industry Concerns

The agency has informed some TAC members that it plans to limit most public sessions to 15 minutes and hold them only virtually, ending the traditional practice of hosting some attendees in person at the Commerce Department building in Washington. Officials won't be able to give updates during the public sessions without approval from senior leadership.

Public sessions at the last five TAC meetings lasted less than one minute each, a striking contrast with the hourslong sessions held as recently as June. All lines were muted with no option to speak.

The change effectively adds another barrier between officials and industry at a moment when Washington is negotiating a high-stakes trade deal with Beijing and has signaled tougher enforcement against violators of its complex export licensing requirements, especially those related to China. It appears to be part of a broader effort within BIS to reduce engagement with the companies that it regulates, particularly public discussions that may reveal future changes to U.S. export rules.

The shift was disclosed by current and former officials, as well as industry representatives and lawyers, who all spoke on condition of anonymity to discuss the sensitive changes and how companies are reacting.

“The culture that they're creating of not communicating with industry -- I'm not aware of anyone that is having robust conversations and getting guidance on anything,” one industry lawyer said. “We’re all reading shadows on the wall.”

While BIS has announced several enforcement actions since January, lawyers and industry officials said they have struggled to get guidance about export control regulations, especially those related to China, or updates on the status of their license applications. Jeffrey Kessler, the BIS undersecretary, told agency employees during an internal town hall in March that they should limit conversations with companies (see 2503280039). And TAC members recently were asked to renew nondisclosure agreements traditionally required as part of the committee work (see 2504030047).

But industry observers and officials said there was a shift after the June quarterly meeting of the Regulation and Procedures TAC, where an agency employee told the audience during the public portion of the meeting that BIS was working on a rule to revise how the Entity List treats subsidiaries of listed companies (see 2506100047).

That rule, which two people said is still under consideration, could impose stringent license requirements on certain entities majority-owned by parties on the Entity List. The remarks sparked concern among companies about an intensified compliance burden and the increased risk of running afoul of the expanded Entity List.

During the most recent RPTAC meeting on Sept. 9, the committee had no public presentations. The public session lasted 36 seconds.

“We all saw this, and we were like, what the heck is this?” said Doug Jacobson, a Washington trade lawyer who frequently attends open TAC sessions, about the abbreviated RPTAC meeting.

“There's a significant amount of concern by both the members of the RPTAC and those of us who are not on the RPTAC about what this means for the future of the TACs under this administration,” he said. “It appears to be a significant change in policy.”

Matthew Borman, the former principal deputy assistant secretary for strategic trade and technology security at BIS who left the agency earlier this year, said the open sessions helped agency employees gain perspectives of industry officials who weren’t TAC members.

“Public TAC sessions allow for additional input to inform BIS decisions, as well as facilitate compliance as a public forum for guidance,” said Borman, who was with BIS for over three decades and is now a trade industry lawyer. “Other than public comments on rules, there's no other set mechanism for that kind of dialogue.”

Borman added that companies may be affected if they used the meetings to seek guidance from BIS. “Companies with compliance questions will no longer have TAC open sessions as a way to get those questions in front of BIS.”

One former official who recently left government and who worked closely with the TACs said they believe the Commerce Department received valuable feedback from the open sessions. The person recalled one instance where their office heard helpful recommendations from two freight forwarders that dialed in to make public comments about trade rules.

“We got questions from those experts that we may not have necessarily gotten from the sworn-in members,” the former official said. “It's always great to receive that advice from the industry. They're on the ground every single day doing this stuff.”

Felice Laird, a trade compliance consultant who has given feedback during TAC meetings, said that “in a perfect world, both industry and government would see benefits of having that kind of robust consultation” in open forums. But she also questioned the value of those open sessions, partly because senior BIS leadership rarely attends, and she said it’s unclear whether BIS truly acts on industry recommendations offered in those public settings.

In June, during the last RPTAC meeting that featured a lengthy open session, Laird urged BIS to issue its replacement regulation for the AI diffusion rule -- or at least officially revoke the existing Biden-era rule -- saying the lack of action was causing significant uncertainty for companies working in the semiconductor sector (see 2506110027). Laird said she never received feedback from BIS about her comments.

“If the administration is now saying, ‘well, we value the input, but a lot of it is too sensitive to cover in open sessions,’ and their intention is to staff the closed sessions with decision-makers, that would be great,” she said. “But I don't feel like that is what's in the works.”

Several former officials questioned whether limiting the public sessions -- and muting members of the public with no opportunity to unmute -- is in line with the Federal Advisory Committee Act, the law that defines how federal advisory committees operate. BIS has written in Federal Register notices for those meetings that members of the public “may present oral statements” and submit written statements “at any time before or after the meeting.”

A BIS spokesperson didn’t respond to requests for comment.

Jacobson said the public sessions have historically been “extremely valuable to industry in terms of having access and listening to” comments from BIS staff.

“It's a major exchange of ideas. It's not just a one-way street,” he said. “So, yes, I do think this is concerning.”

Industry lawyers said they have also struggled to obtain guidance from BIS through other means, including direct calls and emails, and to receive updates on the status of export license applications. BIS earlier this year paused and resumed processing license applications multiple times as senior leadership asked to review them (see 2506110008, 2504020051 and 2504140055), and there remains a “very substantial backlog,” according to a person familiar with the matter.

One longtime industry lawyer with clients in the semiconductor space said BIS has historically responded to industry questions, even if those responses took time. “You could try to call, or you could maybe grab them in a seminar, or maybe an email. I had pretty good luck,” the lawyer said. “Now, there’s just radio silence.”