Framework for Artificial Intelligence Diffusion

DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 732, 734, 740, 742, 744, 748, 750, 762, 772, and 774

[Docket No. 250107-0007]

RIN 0694-AJ90

Framework for Artificial Intelligence Diffusion

AGENCY:

Bureau of Industry and Security, Department of Commerce.

ACTION:

Interim final rule; request for comments.

SUMMARY:

With this interim final rule, the Commerce Department's Bureau of Industry and Security (BIS) revises the Export Administration Regulations' (EAR) controls on advanced computing integrated circuits (ICs) and adds a new control on artificial intelligence (AI) model weights for certain advanced closed-weight dual-use AI models. In conjunction with the expansion of these controls, which BIS has determined are necessary to protect U.S. national security and foreign policy interests, BIS is adding new license exceptions and updating the Data Center Validated End User authorization to facilitate the export, reexport, and transfer (in-country) of advanced computing (ICs) to end users in destinations that do not raise national security or foreign policy concerns. Together, these changes will cultivate secure ecosystems for the responsible diffusion and use of AI and advanced computing ICs.

DATES:

Effective date:

This rule is effective January 13. 2025.

Compliance date:

As explained in the

SUPPLEMENTARY INFORMATION

section, exporters, reexporters, and transferors are not required to comply with the changes made in this rule until May 15, 2025, except that paragraphs 14, 15, and 18 of supplement no. 10 to part 748 have a delayed compliance date of January 15, 2026.

Comment due date:

Comments on revisions and additions in this rule are strongly encouraged and must be received by BIS no later than May 15, 2025.

Saving clause:

Shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export, reexport, or transfer (in-country), on May 15, 2025, pursuant to actual orders for export, reexport, or transfer (in-country) to or within a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR), provided the export, reexport, or transfer (in-country) is completed no later than on June 16, 2025.

ADDRESSES:

Comments on this rule may be submitted to the Federal rulemaking portal (

www.regulations.gov

). The

regulations.gov

ID for this rule is: BIS-2025-0001. Please refer to RIN 0694-AJ90 in all comments.

All filers using the portal should use the name of the person or entity submitting the comments as the name of their files, in accordance with the instructions below. Anyone submitting business confidential information should clearly identify the business confidential portion at the time of submission, file a statement justifying nondisclosure and referring to the specific legal authority claimed, and provide a non-confidential version of the submission.

For comments submitted electronically containing business confidential information, the file name of the business confidential version should begin with the characters “BC.” Any page containing business confidential information must be clearly marked “BUSINESS CONFIDENTIAL” on the top of that page. The corresponding non-confidential version of those comments must be clearly marked “PUBLIC.” The file name of the non-confidential version should begin with the character “P.” Any submissions with file names that do not begin with either a “BC” or a “P” will be assumed to be public and will be made publicly available through

https://www.regulations.gov

. Commenters submitting business confidential information are encouraged to scan a hard copy of the non-confidential version to create an image of the file, rather than submitting a digital copy with redactions applied, to avoid inadvertent redaction errors which could enable the public to read business confidential information.

FOR FURTHER INFORMATION CONTACT:

For general questions contact:

Hillary Hess at 202-482-2440 or

RPD2@bis.doc.gov

.

For technical questions contact:

Category 2:

Sean Ghannadian at 202-482-3429 or

Sean.Ghannadian@bis.doc.gov

.

Category 3:

Carlos Monroy at 202-482-3246 or

Carlos.Monroy@bis.doc.gov

.

Category 4:

Aaron Amundson at 202-482-0707 or

Aaron.Amundson@bis.doc.gov

].

SUPPLEMENTARY INFORMATION:

I. Background

BIS is amending the EAR to enhance and refine its framework for applying export controls to regulate the global diffusion of the most advanced artificial intelligence (AI) models and large clusters of advanced computing integrated circuits (ICs) to protect U.S. national security and foreign policy interests. Specifically, BIS is expanding existing controls on advanced computing ICs controlled under ECCNs 3A090.a and 4A090.a and the corresponding .z items and imposing new controls on the model weights of certain advanced closed-weight dual-use AI models controlled under newly created ECCN 4E091. Background on these changes, which follow extensive U.S. government consideration of the impact of advanced dual-use AI models on U.S. national security and foreign policy interests, is detailed below.

The Export Control Reform Act of 2018 (ECRA), 15 U.S.C. 4801,

et seq.,

emphasizes that national security “requires that the United States maintain its leadership in the science, technology, engineering, and manufacturing sectors, including foundational technology that is essential to innovation.” ECRA also commands that BIS's rules be “transparent, predictable, and timely,” and have “the flexibility to be adapted” in light of evolving circumstances. Given that this rule imposes new global requirements on a rapidly developing industry that is central to innovation, BIS has determined that it can best further the United States's technological leadership, and provide transparency and predictability to affected stakeholders, by delaying the compliance date of this rule, as outlined in the

DATES

section. Such delay will allow stakeholders time to familiarize themselves with the rule, and to provide comment on it, before compliance is required.

a. Risks and Benefits of Advanced AI Models

Over the past decade, AI models have shown striking performance improvements across many domains, including reasoning, coding, and image and voice recognition and creation. These performance improvements create numerous direct applications, such as text generation and computer code-assistance, and can increasingly support AI agents that are able to interact with digital and physical systems, increasing the ability of laypeople to, for example, write code or use scientific tools that previously required specialized skills.

Performance improvements may continue as AI developers increase the scale and efficiency of their models.

Experts from across the U.S. government have determined that as the capabilities of these models continue to improve, they will enable malicious actors to engage in activities that pose profound risks to U.S. national security and foreign policy objectives. As the Office of the Director of National Intelligence has assessed, AI models have the potential to enable advanced military and intelligence applications; lower the barriers to entry for non-experts to develop weapons of mass destruction (WMD); support powerful offensive cyber operations; and assist in human rights violations, such as through mass surveillance.

See

Feb 5, 2024, Office of the Director of National Intelligence, Annual Threat Assessment of the U.S. Intelligence Community. For example, a dual-use AI model trained on data describing the functions and mechanics of chemical compounds or biological sequences could lower barriers to the development of chemical or biological weapons by providing protocols and troubleshooting information that would enable non-experts to design and produce such weapons at low cost. Similarly, the Department of Homeland Security has determined that advancements in AI may lower the barriers to entry for WMD development for both state and non-state actors and thus enhance malicious actors' ability to conduct attacks that threaten U.S. national security.

See

April 26, 2024, Department of Homeland Security Report on Reducing the Risks at the Intersection of Artificial Intelligence and Chemical, Biological, Radiological, and Nuclear Threats.

At the same time, experts from across the U.S. government have determined that, in the hands of validated entities operating under secure conditions, dual-use AI models have the potential to create significant economic and social benefits in the United States and across the globe. As BIS explained in a previous rule, dual-use AI models hold the potential to increase access to healthcare, education, and food and assist with combatting complex problems such as climate change.

See

Expansion of Validated End User Authorization: Data Center Validated End User Authorization, 89 FR 80,080 (Oct. 2, 2024). For example, under the right conditions, advanced AI models could be an enabler toward achieving Sustainable Development Goals, such as by boosting productivity in the pharmaceutical industry, strengthening climate resilience by improving climate modelling, and helping expand access to education by providing personalized tutors in a wide range of subjects. The United States is committed to the full implementation of the 2030 Agenda for Sustainable Development and Sustainable Development Goals.

In other words, advanced AI models both pose unique threats to U.S. national security and foreign policy and have the potential to unlock unique economic and social benefits. As President Biden explained in remarks made to the United Nations General Assembly on September 24, 2024, AI will transform “our ways of life, our ways of work, and our ways of war.” As well as profound benefits, President Biden noted, AI brings “profound risks,” from “disinformation to novel pathogens to bioweapons.” President Biden's National Security Memorandum on Advancing the United States' Leadership in Artificial Intelligence; Harnessing Artificial Intelligence to Fulfill National Security Objectives; and Fostering the Safety, Security, and Trustworthiness of Artificial Intelligence, issued on October 24, 2024, similarly explained the promise and perils of AI. “AI,” it stated, “if used appropriately and for its intended purpose, can offer great benefits. If misused, AI could threaten United States national security, bolster authoritarianism worldwide, undermine democratic institutions and processes, facilitate human rights abuses, and weaken the rules-based international order.” Importantly, such “harmful outcomes could occur even without malicious intent if AI systems and processes lack sufficient protections.”

b. AI Diffusion Policy Review

Recognizing both the benefits and the risks of advanced AI models, the Department of Commerce (Commerce) has engaged in an extensive and ongoing policy process with partners across the U.S. Government to consider strategic, tailored, and effective controls on the diffusion of advanced AI technology to entities and destinations around the world. In October 2022, BIS imposed a first set of controls to certain destinations with the aim of preventing certain foreign military and intelligence services from obtaining the ability to indigenously develop advanced weapons modeling and advanced AI capabilities, by imposing restrictions on their access to advanced computing ICs and certain semiconductor manufacturing equipment (SME) used to manufacture advanced computing ICs and other advanced-node ICs. BIS determined that those foreign military and intelligence services would use advanced AI to improve the speed and accuracy of their military decision making, planning, and logistics, as well as their autonomous military systems, such as those used for cognitive electronic warfare, radar, signals intelligence, and jamming.

See

Implementation of Additional Export Controls: Certain Advanced Computing and Semiconductor Manufacturing Items; Supercomputer and Semiconductor End Use; Entity List Modification, 87 FR 62,186 (Oct. 13, 2022). BIS also determined that those military and intelligence services would use advanced AI surveillance tools, enabled by efficient processing of huge amounts of data, to monitor, track, and surveil citizens, among other purposes, without regard for human rights.

See id.

Accordingly, BIS controlled both the advanced computing ICs and the SME used to manufacture the controlled ICs.

Since then, BIS has continuously evaluated and updated BIS's controls to ensure that they remain as targeted and effective as possible to protect U.S. national security and foreign policy In 2023, BIS updated the technological parameters on its advanced computing controls and broadened the scope of destinations to which those controls apply to cover countries of concern not captured by the 2022 controls. BIS also imposed worldwide license requirements for advanced computing ICs and certain semiconductor end-uses when conducted on behalf of entities headquartered in Country Group D:5 or Macau. In 2024, BIS made clarifications to the scope of the AI and SME controls and, recognizing the importance of facilitating the responsible diffusion of advanced AI technology, expanded Authorization Validated End User (VEU) to enable data centers to receive VEU authorizations, which allow entities in locations subject to license requirements to receive controlled items through a streamlined process subject to security conditions. BIS's work in this area is consistent with U.S. foreign policy to support global development.

Over the past year, BIS has engaged with national security and foreign policy experts from across the U.S. Government—including interagency export control partners in the Departments of Defense, Energy, and State, as well as the Intelligence Community—to study whether and how additional controls on advanced AI technologies would advance U.S. national security and foreign policy. As explained below, they began by studying the risks and benefits that would arise if the most advanced AI models or the items necessary for developing them were allowed to diffuse through destinations across the

world. Simultaneously, they engaged with technical experts to understand the most effective means for controlling the diffusion of those items to address the risks. This rule details a multi-part control structure aiming to both reduce the risk that countries of concern (Country Group D:5 and Macau) obtain the most advanced AI models and enable validated entities to access the benefits of those models, while protecting national security.

i. Impact of AI Diffusion on National Security and Foreign Policy

The proliferation of advanced AI models throughout the world will affect U.S. national security and foreign policy interests in three fundamental ways.

First, exporting advanced AI models, or the means to produce them, to any destination outside the United States increases the risk of theft or diversion to countries and end users of concern. Although the degree of risk varies between different destinations and end users, there is risk even when the end user is a validated entity and the destination is a U.S. ally with a robust export control system. These risks may be most acute at the constantly advancing frontier of AI development—the largest and most advanced models available at any given time.

Second, it will be impossible to realize the full economic and social benefits of advanced AI models unless validated entities outside the United States are able to obtain large quantities of advanced computing ICs or advanced AI models themselves. Such entities may be able to discover beneficial applications that U.S. firms alone will not, and they may increase the likelihood that the benefits of advanced AI models reach people across the world. The Export Control Reform Act of 2018 (ECRA) states that export controls should be “tailored to focus on those core technologies . . . capable of being used to pose a serious national security threat to the United States,” so BIS considered the need to appropriately tailor potential controls to address national security concerns without unduly burdening the economic and social benefits of access by foreign entities to advanced AI models and advanced computing ICs. 50 U.S.C. 4811(2)(G) and (5). In cases in which such entities are located in destinations that present a risk of diversion or misuse, BIS and its interagency export control partners can account for that risk with appropriate mitigation measures.

Third, U.S. national security requires that the United States maintain technological leadership in the global AI industry. Specifically, ECRA notes that maintaining technological leadership is a core national security interest and that the impact of export controls on technology leadership must be continuously evaluated (50 U.S.C. 4811(3)). BIS has determined that to maintain U.S. leadership in the field of AI, U.S. developers of advanced AI models may need to build large clusters of advanced computing ICs outside the United States. They may also need to store their models at facilities abroad to ensure that they can provide high quality services to validated foreign customers.

Therefore, BIS determined that U.S. national security and foreign policy require the regulation of the global diffusion of advanced AI models. However, such controls must be tailored to enable economically and socially beneficial uses of advanced AI models and to maintain U.S. technological leadership as described above.

ii. Means for Responsibly Controlling AI Diffusion

AI models are software programs that comprise a series of mathematical operations. When a user enters data into the program, the program executes those operations on the input data to produce outputs—information, analysis, or media. The design of these operations and their arrangement (known as the model's architecture) determines the nature and quality of the model's outputs.

The first step in developing an AI model is to design the model's architecture and write it into computer code. However, the initial structure does not transform inputs into meaningful outputs. This means that before the model has been exposed to a high volume of real-world data, its outputs will be largely meaningless.

The next step is to “train” the model. Training involves feeding large quantities of data into the model while using optimization algorithms to evaluate the quality of the program's outputs and improve its performance. These algorithms systematically adjust numerical parameters called “model weights” that weight the results of certain operations more or less heavily than others. As the training progresses, these weights are gradually optimized to allow the model to produce higher quality outputs for its intended tasks. The weights that result from the training process are valuable intellectual property, because basic model architectures and supporting code are often either publicly documented or subject to reverse engineering through a process that may be significantly easier than training a new set of model weights.

Training today's most advanced AI models, including Large Language Models (LLMs), requires large clusters of advanced computing ICs capable of handling large quantities of data and models containing large numbers of parameters. Progress in AI models has resulted partly from dramatic increases in the computing power and training data used to develop the largest AI models. Leading AI developers have increased the computing power and data used to produce their largest models by many orders of magnitude over the last decade and continue to increase their scale by several multiples each year. By the end of this decade, leading AI developers plan to construct clusters of advanced ICs many times larger than those that exist today to train AI models using many times more computational operations than the largest AI models yet released.

The structure of AI models and these industry trends suggest that export controls can effectively regulate the global diffusion of advanced AI models through: (1) an expansion of existing controls on the export, reexport, and transfer (in-country) of advanced computing ICs that are necessary to construct large clusters for training advanced AI models; and (2) new controls on the export, reexport, and transfer (in-country) of the model weights of the most advanced AI models.

iii. Framework for the Diffusion of Advanced AI Technologies

This rule details a tailored strategic approach to controlling the proliferation of advanced AI models. At a high level, this strategy aims to ensure that the model weights of the most advanced U.S. AI models are stored outside the United States only under stringent security conditions and the large clusters of advanced ICs necessary to train those models are built in destinations that pose comparatively low risks of diversion or misuse.

This rule requires a license to export, reexport, or transfer (in-country) advanced computing ICs or the model weights of the most advanced AI models to any end user in any destination. The U.S. Government will review applications for such exports, reexports, and transfers (in-country) based on the sensitivity of the destination, the quantity of compute power or performance of the AI model, and the security requirements agreed to by the recipient. This global licensing requirement is crucial to ensuring that these items are not diverted to

destinations or end users of concern. Credible open-source reporting has identified People's Republic of China (PRC) companies that have used foreign subsidiaries in a range of uncontrolled destinations to buy ICs subject to EAR controls. The risk is even greater with AI model weights, which, once exfiltrated by malicious actors, can be copied and sent anywhere in the world instantaneously. Accordingly, U.S. national security and foreign policy require that BIS scrutinize any transaction involving a destination or end user that presents an elevated risk of diversion or misuse. To reinforce this general requirement, BIS will set a licensing policy of a presumption of denial for certain large quantities of advanced computing ICs needed to train advanced AI models. For destinations and end users that present a comparatively low risk of diversion or misuse, a global licensing requirement will enable BIS to impose conditions that reduce the overall risk. A global licensing requirement is the most effective way to ensure that BIS can address the various risks associated with exporting large quantities of advanced computing ICs and the model weights of the most advanced AI models.

To help ease the burden on destinations and end users that pose a comparatively low risk of diversion or misuse and to facilitate economically beneficial activities, BIS is including flexibility within its global licensing requirements. For example, BIS will provide license exceptions—conditioned on compliance with certain security measures—for validated end users or particularly low-risk destinations. BIS will also provide a mechanism for other end users in other destinations to achieve validated status, which will allow them to obtain advanced computing ICs more easily. Additionally, consistent with its general practice, BIS will not require a license for the export of the model weights of open-weight models (

see

July 30, 2024, Dual-Use Foundation Models with Widely Available Model Weights Report, National Telecommunications and Information Administration). These elements of the strategy will ensure that BIS's controls address only the starkest risks identified at the frontier of AI development and do not affect the vast majority of AI technology. This is consistent with ECRA's policy goals, which direct BIS to restrict the export of items that would “make a significant contribution to the military potential of any other country or combination of countries which would prove detrimental to the national security of the United States” while simultaneously maintaining U.S. “leadership in the science, technology, engineering, and manufacturing sectors, including foundational technology that is essential to innovation.” 50 U.S.C. 4811(3).

As a third and final part of the strategy, BIS will impose security conditions to safeguard the storage of the most advanced models in destinations that pose heightened risks of diversion and to mitigate the risk of diversion for advanced ICs. Such conditions will protect U.S. national security by ensuring that where advanced models are stored, and large IC clusters are built, outside the United States, they are safeguarded from diversion or misuse.

As explained further below, BIS is implementing this three-part strategy by:

(1) adding a new control for AI model weights under new Export Control Classification Number (ECCN) 4E091;

(2) revising the license requirements and review policy for ECCNs 3A090.a, 4A090.a, and corresponding .z items;

(3) expanding the country scope of License Exception Advanced Computing Authorized (ACA);

(4) adding new License Exceptions Artificial Intelligence Authorization (AIA), Advanced Compute Manufacturing (ACM), and Low Processing Performance (LPP) that apply to advanced computing integrated circuits, AI model weights, and related items;

(5) adding new red flag guidance related to AI model weights;

(6) bifurcating the Data Center Validated End-User Authorization into Universal and National Validated End-User Authorizations; and

(6) updating License Exception Notified Advanced Computing (NAC) notification procedures to improve its efficiency.

Ultimately, ensuring the staged, responsible diffusion of advanced AI in these ways has several benefits. First, it reduces the risk that countries or end users of concern obtain the most advanced AI models or the ability to develop them. Second, it will allow a fuller understanding of the risks posed by each generation of AI models and the development of safety mitigations before the most advanced model weights and largest IC clusters diffuse globally. Third, a highly focused scope on frontier AI will allow commerce in AI models and advanced ICs to continue largely unimpeded. And finally, a strategy that focuses on the physical locations of model weights and large clusters of advanced ICs will allow continued global access to the capabilities of even the most advanced AI models through structured mechanisms, including through user applications and application programming interfaces (APIs), for which this rule imposes no new restrictions.

II. Expanded Advanced Computing Integrated Circuit Controls

As explained above, large clusters of advanced computing ICs are essential to the development of advanced AI models. Accordingly, BIS can reduce the risk that malicious state and non-state actors gain access to advanced AI models by imposing controls that allow exports, reexports, and transfers (in-country) of large quantities of advanced computing ICs only to certain destinations and end users. At the same time, BIS can ensure that destinations and end users that meet robust security and safety standards will be able to obtain large quantities of advanced computing ICs.

Controls focused on the construction of large clusters of advanced computing ICs are a logical extension of BIS's previous controls, which have focused on the risk to U.S. national security and foreign policy from allowing even small numbers of advanced ICs, and associated SME, to be exported or reexported to certain destinations of concern. Those previous controls were based on BIS's determination that military and intelligence services in such destinations could use even small quantities of advanced computing ICs to further their military capabilities, contrary to U.S. national security and foreign policy interests. Accordingly, BIS imposed controls on these items in October 2022 (87 FR 62186, October 13, 2022), October 2023 (88 FR 73458, October 25, 2023 and 88 FR 73424, October 25, 2023), and further clarified such controls in April 2024 (89 FR 23876, April 4, 2024). In October 2024, BIS expanded the Validated End-User (VEU) Authorization in § 748.15 to facilitate the export of advanced computing ICs and related items to qualified data centers (89 FR 80080, October 2, 2024). Mostly recently, BIS updated these controls in December 2024 (89 FR 96790, December 5, 2024).

Specifically, in October 2022, BIS published an interim final rule (87 FR 62186) which made critical changes to the EAR in two areas. First, the rule imposed additional export controls on certain advanced computing ICs, computer commodities that contain such ICs, and certain SME and parts and components needed to produce those and other advanced ICs. Specifically,

the controls required a license before exporting or reexporting those items to the PRC or to certain entities on the Entity List (supplement no. 4 to part 744). BIS explained that these controls were aimed at limiting the PRC's ability to engage in activities that would pose significant threats to U.S. national security and foreign policy. Specifically, BIS found that certain advanced computing ICs and related computing items—many of which originated in the United States or were produced with U.S. technology, software, or tools—could enable the PRC to develop certain enhanced data processing and analysis capabilities, including through AI applications. Additionally, BIS found that the capability to produce advanced computing ICs through the use of certain SME presented significant national security and foreign policy concerns. These capabilities could be used by the PRC to further its military modernization efforts; to improve calculations in weapons design and testing, including for weapons of mass destruction (WMD); and to violate human rights through comprehensive surveillance programs.

Thereafter, in October 2023, BIS broadened the scope of advanced computing controls to cover other destinations of concern (Country Groups D:1, D:4, and D:5). Similarly, BIS imposed worldwide license requirements for certain advanced computing ICs and specified semiconductor manufacturing and supercomputing end-uses when conducted on behalf of entities headquartered in, or with an ultimate parent company headquartered in, Macau or a destination in Country Group D:5. Due to the rapid nature of technological change in AI, BIS has been closely studying these developments and updating its rules accordingly to ensure that they remain as targeted and effective as possible.

BIS has also modified its controls to facilitate the export of advanced computing ICs and related items to certain end users who agree to use those items in secure ecosystems. Specifically, in October 2024, BIS expanded the Validated End-User (VEU) Authorization in § 748.15 to expand Authorization VEU for data centers 89 FR 80080, October 2, 2024. BIS explained that data centers are vital to global AI development, and that the United States is committed to facilitating international AI development in a way that minimizes risk to U.S. national security. Accordingly, BIS expanded Authorization VEU to facilitate the export or reexport of items necessary for a data center to preapproved validated end users in destinations (other than D:5 countries) that require a license for items classified under ECCNs 3A090.a, 4A090.a, and .z items in Categories 3, 4, and 5. The Data Center VEU Authorization adopted much of the framework of the existing Authorization VEU, with additional requirements appropriate for a data center environment.

Effective December 2, 2024, BIS expanded controls on advanced computing ICs that could enable AI applications of national security concern, as well as the SME, software, and technology needed to produce such ICs. Specifically, BIS imposed new controls on certain high-bandwidth memory (HBM) commodities, which are critical to AI training and inference at scale and a key component of advanced computing ICs. BIS also imposed controls on additional SME capable of producing advanced computing ICs (

e.g.,

certain etch, deposition, lithography tools, etc.) and on software that can enhance the capabilities of such SME or can be used to design advanced computing ICs.

These previous controls reflect BIS's determination—made in conjunction with experts from across the U.S. government—that the export of even small quantities of advanced computing ICs to specific destinations and end users of concern pose significant risks to U.S. national security and foreign policy interests. Having imposed controls that address those risks, BIS and its interagency partners have evaluated how sales of large quantities of advanced computing ICs to other destinations and end users affect U.S. national security and foreign policy. BIS has determined that it is necessary to restrict the export of quantities of advanced ICs sufficient to train such models in order to protect U.S. national security and foreign policy interests.

To that end, this rule imposes a global license requirement for the export of advanced ICs classified under ECCNs 3A090.a, 4A090.a, and related .z items in § 742.6(a)(6)(iii)(A), and then creates several exceptions and pathways to authorization to facilitate transactions that pose a low risk of diversion or would otherwise advance U.S. national security or foreign policy interests, including technological leadership. As noted elsewhere in this rule, these provisions also are consistent with U.S. foreign policy regarding global development.

First, this rule creates an exception in new § 740.27 for all transactions involving certain types of end users in certain low-risk destinations. Specifically, these are destinations in which: (1) the government has implemented measures to prevent diversion of advanced technologies, and (2) there is an ecosystem that will enable and encourage firms to use advanced AI models to advance the common national security and foreign policy interests of the United States and its allies and partners. Those destinations, which are listed in paragraph (a) to Supplement No. 5 to Part 740, are Australia, Belgium, Canada, Denmark, Finland, France, Germany, Ireland, Italy, Japan, the Netherlands, New Zealand, Norway, Republic of Korea, Spain, Sweden, Taiwan, the United Kingdom, and the United States. For these destinations, this IFR makes minimal changes: companies in these destinations generally will be able to obtain the most advanced ICs without a license as long as they certify compliance with specific requirements provided in § 740.27.

Second, BIS makes no changes to the strict rules governing provision of these items to Country Group D:5 destinations and Macau.

Third, for all other destinations—in other words, destinations that are not Macau, Country Group D:5, or those listed in paragraph (a) to Supplement No. 5 to Part 740—this rule creates a multi-part framework that takes into account the compute power of the transaction and, in certain cases, security measures agreed to by the recipient. To start, BIS is establishing a license exception for limited quantities of advanced ICs,

i.e.,

quantities well below the amount necessary to train the most advanced AI models. This license exception can ensure that transactions not intended to contribute to the development of advanced AI models can continue unimpeded, so long as the exporter provides BIS with notice. Transactions involving larger quantities of controlled ICs will be subject to a new licensing policy that enables the export of ICs up to a specified country allocation. To provide predictability, BIS is specifying this allocation for the time period from 2025 to 2027. This licensing policy will enable end users in these destinations to develop any AI models short of the frontier, thereby allowing them to access the economic benefits of those models while simultaneously protecting the United States from the most significant threats.

At the same time, this rule enables entities in these destinations to gain validated status to obtain significantly larger quantities of ICs under Authorization VEU. Authorization VEU advances U.S. national security and foreign policy by allowing entities that

have agreed to enact concrete, verifiable, and robust security measures to access large clusters of advanced ICs. For end users in these destinations—not Macau, Country Group D:5, or those listed in paragraph (a) to supplement no. 5 to Part 740—that do not meet eligibility criteria for the National VEU Authorization, BIS is implementing uniform default country allocations of advanced ICs. Exports and reexports of advanced ICs will be counted against these allocations starting on the effective date of this rule. These allocations will limit the risk of diversion of advanced ICs and encourage such entities to meet the conditions to qualify for VEU Authorization. In this way, Authorization VEU will also buttress U.S. foreign policy to support global development.

A. New Worldwide License Requirements

With this IFR, BIS establishes a worldwide license requirement for ECCNs 3A090.a, 4A090.a, and corresponding .z items in new § 742.6(a)(6)(iii)(A). A worldwide license requirement for these items, which includes those items subject to the EAR's jurisdiction through the advanced computing foreign direct product rule (FDPR), will protect U.S. national security and foreign policy interests by allowing BIS to scrutinize any transaction that presents an elevated risk of diversion or misuse and by providing the U.S. government with visibility into the locations, end users, and end uses of advanced ICs. Further, as discussed below, diffusion of AI compute through the Data Center VEU Authorization will allow for companies around the world to benefit from allocations of AI compute in validated, protected environments.

ECCN 3A090.a controls integrated circuits with one or more digital processing units having either: (1) a `total processing performance' of 4800 or more; or (2) a `total processing performance' of 1600 or more and a `performance density' of 5.92 or more. ECCN 3A090.b controls integrated circuits with one or more digital processing units having either: (1) a `total processing performance' of 2400 or more and less than 4800 and a `performance density' of 1.6 or more and less than 5.92; or (2) a `total processing performance' of 1600 or more and a `performance density' of 3.2 or more and less than 5.92.

ECCN 4A090.a controls computers, “electronic assemblies,” and “components” containing integrated circuits, any of which meets or exceeds the limits in 3A090.a. ECCN 4A090.b controls computers, “electronic assemblies,” and “components” containing integrated circuits, any of which meets or exceeds the limits in 3A090.b.

To adopt this new control, BIS is revising the Regional Stability control in § 742.6 by amending paragraph (a)(6)(iii) and bifurcating it into paragraphs (A) and (B). Section (a)(6)(iii)(A) will implement a worldwide license requirement on 3A090.a, 4A090.a and corresponding .z commodities, software, and technology. Section (a)(6)(iii)(B) implements license requirements on 3A090.b, 4A090.b, and corresponding .z commodities, software, and technology to or within destinations specified in Country Groups D:1, D:4, and D:5, excluding destinations also specified in Country Groups A:5 or A:6. Imposition of this RS control will make License Exception GBS unavailable for 3A001.z.1.a items, because they will be subject to a worldwide license requirement that is imposed for other than national security reasons. GBS will still be available for 3A001.z.1.b items for destinations in Country Group B that are not also listed in Country Groups D:1, D:4, or D:5. Additionally, consistent with the imposition of expanded RS controls for such items, this rule removes existing LVS eligibility for all 3A001.z items to ensure they may not be exported or reexported under this license exception to destinations in Country Group B without being subject to the volume restrictions, certification requirements, and reporting requirements of the new license exceptions added for such items in this rule. (See also restrictions on license exceptions, § 740.2(a)(9)(ii).)

In addition to expanding the country scope of controls on ECCN 3A090.a and 4A090.a items, BIS is also expanding the destination scope of the advanced computing foreign direct product rule in § 734.9(h)(2)(i). BIS is replacing references to Country Groups D:1, D:4, and D:5 and exclusions of A:5 and A:6 with the word “worldwide.” Accordingly, the language now provides that a foreign-produced item meets the destination scope of this paragraph (h)(2) if there is “knowledge” that the foreign-produced item is destined worldwide or will be incorporated into any “part,” “component,” “computer,” or “equipment” not designated EAR99 to any destination worldwide.

B. License Exceptions for 3A090, 4A090, Corresponding .z Items, and 4E091

With this rule, BIS is adding three new license exceptions to the EAR that will be applicable to advanced compute ICs: § 740.27 License Exception AIA, § 740.28 License Exception ACM, and § 740.29 License Exception LPP. In addition, it is updating the destination scope of License Exception Advanced Compute Authorization (ACA). BIS also is updating the NAC process to facilitate more efficient processing. As part of this updated process, BIS and the interagency are seeking additional information from NAC users.

1. License Exception Artificial Intelligence Authorization (AIA)

This new license exception authorizes the export, reexport, or transfer (in-country) of eligible advanced computing ICs and associated software and technology to entities located in a destination listed in paragraph (a) of supplement no. 5 to part 740, unless the entity either is headquartered outside of a destination specified in paragraph (a) of the supplement or has an ultimate parent company that is headquartered outside of a destination specified in paragraph (a) of the supplement.

See

§ 740.27(a).

To use the license exception for eligible items (

e.g.,

3A090.a, 4A090.a, or corresponding .z items and 4E091), the exporter, reexporter, or transferor must furnish the ECCN to the ultimate consignee. In addition, for advanced computing ICs eligible for this license exception, the exporter, reexporter, or transferor must also obtain a prior certification from the ultimate consignee and, for certain large orders, provide the certification to BIS pursuant to certain reporting requirements. For purposes of License Exception AIA, the ultimate consignee is the entity that has ownership over the eligible items. The certification must state that, without BIS authorization: (1) the items received will not be used to provide Infrastructure-as-a-Service (IaaS) access sufficient to train an AI model classified under ECCN 4E091 to entities headquartered or located outside of, or whose ultimate parent company is headquartered outside of destinations listed in paragraph (a) of supplement no. 5 to Part 740; (2) the ultimate consignee will not export, reexport, or transfer the items to any end use or end user prohibited pursuant to Part 744 of the EAR; and (3) the ultimate consignee will not export, reexport, or transfer (in-country) the items to an entity headquartered or located outside of, or whose ultimate parent company is headquartered outside of paragraph(a) of supplement no. 5 to Part 740. Once the certification is received from the ultimate consignee, and prior to the initial export, reexport, or transfer, the exporter, reexporter, or transferor must

submit the certification to

EARReports@bis.doc.gov

with the Subject AIA Certification. The ultimate consignee must also submit the certification to the exporter, reexporter, or transferor. The certification is a one-time certification provided by each ultimate consignee that will be using License Exception AIA. With each shipment under License Exception AIA, the exporter, reexporter, or transferor, must notify the ultimate consignee in writing that: (1) the shipment is being made pursuant to License Exception AIA; (2) specify which items are subject to License Exception AIA or state that the entire shipment is made pursuant to License Exception AIA; and (3) it has certified to the certification in § 740.27(b)(2). This reporting requirement is only applicable if the ultimate consignee is receiving items identified in paragraphs (a)(1) with a cumulative total processing performance (TPP) of 253,000,000.

2. License Exception Advanced Compute Manufacturing (ACM)

New License Exception ACM authorizes the export, reexport, and transfer (in-country) of eligible items (ECCNs 3A090, 4A090, and related .z commodities, software, and technology) to a `private sector end user' that is located in a destination not listed in Country Group D:5 or Macau, provided it is not headquartered in and does not have an ultimate parent company headquartered in Macau or a destination specified in Country Group D:5, if the ultimate end use is the “development,” “production,” or storage (in a warehouse or other similar facility) of such eligible items. An entity may not use this exception if the ultimate end use of the items is training an AI model or any other activity not related to the “development,” “production,” or storage (in a warehouse or other similar facility) of such eligible items. For the purposes of this license exception, `private sector end user' is an individual who is not acting on behalf of any government (other than the U.S. government); or a commercial firm (including its subsidiary and parent firms, and other subsidiaries of the same parent) that is not wholly owned by, or otherwise controlled by any government (other than the U.S. government). The items produced must be ultimately destined to customers outside of Macau or destinations specified in Country Group D:5. Although License Exception ACM shipments do not count toward country caps, exporters, reexporters, and transferors must maintain a system of distribution that allows them to account for the number of controlled items transferred to, and subsequently out, of the facility. Such accounting should be done for each facility, with records updated every six months or more frequently. This license exception is intended to minimize the impact of this rule on supply chains.

3. License Exception Low Processing Performance (LPP)

New License Exception LPP, set forth in new § 740.29, authorizes the export and reexport of low amounts of compute that do not present significant national security risks, up to 26,900,000 Total Processing Performance (TPP) of advanced computing ICs per-calendar year to any individual ultimate consignee. For purposes of this license exception, ultimate consignee means the entity that has ownership over the items. This license exception is available to exporters or reexporters who export or reexport eligible items (ECCNs 3A001.z.1.a, z.2.a, z.3.a, z.4.a; 3A090.a; 4A003.z.1.a, z.2.a; 4A004.z.1; 4A005.z.1; 4A090.a; 5A004.z.1.a, z.2.a; and 5A992.z.1) directly to ultimate consignees in eligible destinations. It is not available for exports or reexports made through distributors or for in-country transfers. Eligible destinations are those located outside of destinations in Country Group D:5 or Macau, provided the ultimate consignee is not headquartered in, and does not have an ultimate parent company headquartered in, Macau or Country Group D:5. In addition, the license exception cannot be used to export or reexport to prohibited end uses or end users in part 744 of the EAR.

The license exception provides for an annual TPP volume restriction on LPP orders set forth in paragraph (d) of the new license exception. The total TPP volume of exports and reexports per calendar year by all exporters and reexporters to any individual ultimate consignee may not exceed the 26,900,000 TPP volume limit; however, there is no restriction on the number of shipments from any exporters or reexporters, provided the volume limit is not exceeded. This annual TPP limit applies to shipments to any individual ultimate consignee even if the shipments are made by multiple exporters or reexporters or through more than one intermediate consignee. Before using License Exception LPP, under paragraph (f) of new § 740.29, the exporter or reexporter must obtain a certification from the ultimate consignee that the ultimate consignee has not received a cumulative of 26,900,000 TPP during the relevant calendar year under License Exception LPP from all exporters and reexporters and that the requested TPP for the specific transaction will not result in the ultimate consignee exceeding the TPP limit. The exporter or reexporter must also provide this certificate to BIS within 30 days of the date on which the export or reexport of eligible items occurs. Cumulative TPP is the total amount of TPP of the eligible commodities in paragraph (b) of § 740.29 that are provided to the ultimate consignee in all shipments by all exporters and reexporters in a calendar year under License Exception LPP. Pursuant to paragraph (g), the exception also provides that ultimate consignees receiving eligible items under License Exception LPP must notify BIS once they have received a cumulative total of 26,900,000 TPP in a calendar year. Under paragraph (g), the exception also provides that the exporter must notify BIS of all shipments under the exception with an aggregate TPP of more than 3,200,000.

4. Updates to License Exception Notified Advanced Computing and Advanced Computing Authorized for ECCNs 3A090, 4A090, and Corresponding .z Items

Currently, under § 740.8(a), License Exceptions Notified Advanced Computing (NAC) and Advanced Computing Authorized (ACA) are available for items classified in ECCNs 3A090, 4A090, 3A001.z, 4A003.z, 4A004.z, 4A005.z, 5A002.z, 5A004.z, 5A992.z, 5D002.z, or 5D992.z, except for items designed or marketed for use in a data center and meeting the parameters of 3A090.a. License Exception NAC authorizes the export and reexport of specified items to Macau and destinations specified in Country Group D:5 and entities headquartered in, or with an ultimate parent headquartered in, Macau or a destination specified in Country Group D:5 wherever located, that require a notification to BIS. License Exception ACA authorizes the export and reexport of any item classified in ECCN 3A090, 4A090, 3A001.z, 4A003.z, 4A004.z, 4A005.z, 5A002.z, 5A004.z, 5A992.z, 5D002.z, or 5D992.z (except for items designed or marketed for use in a datacenter and meeting the parameters of 3A090.a) to or within any destination specified in Country Groups D:1 and D:4 (except Macau, a destination in Country Group D:5, or an entity headquartered in, or with an ultimate parent headquartered in, Macau or a destination specified in Country Group D:5, wherever located), as well as transfers (in-country) within Macau and destinations in Country Group D:5. The destination scope of License Exception ACA in § 740.8(a) is amended by striking to D:1 or D:4 and

replacing with “any destination worldwide.” Accordingly, the regulatory text now states, “to or within any destination worldwide (except Macau, a destination specified in Country Group D:5, or an entity headquartered in, or with an ultimate parent headquartered in, Macau or a destination specified in Country Group D:5, wherever located), as well as transfers (in-country) within Macau and destinations specified in Country Group D:5”.

In addition to the changes to License Exception ACA, BIS is amending the NAC notification procedures by seeking additional information as set forth in § 740.8(c). License Exception NAC established a notification process for exports and reexports to Macau or destinations specified in Country Group D:5 to provide BIS and interagency partners the opportunity to evaluate the national security risk posed by ICs that fall within this parameter. Since initial implementation, BIS and its interagency partners have revisited NAC to implement a faster internal review process. Specifically, during the evaluation process, interagency partners will be reviewing: (1) whether the export is NAC eligible; (2) whether the end-user has ties to a military or intelligence organization that prompt national security or human rights concerns; (3) if the technical parameters of the ICs are >2800 TPP or if the ICs have >1,000 GB/s memory bandwidth; (4) whether the ICs will be aggregated with other ICs into a datacenter cluster, or be used as a sample or in a standalone configuration (

e.g.,

workstation); (5) if the ICs are going into the datacenter, the size of the data center; and (6) if the ICs will be used internally by a company headquartered in the United States or a company headquartered in Country Group A:5 or A:6. Exporters and reexporters utilizing License Exception NAC must provide this information to ensure efficient processing. BIS believes the use of this new review criteria will result in overall faster processing of all NAC notifications, as well as a greater percentage of NAC notifications being approved during the initial review period.

Moreover, to deploy this process, BIS is amending § 740.8(c) to add the following to the existing list of required information: (1) all NAC and license approvals to the end-user in the past 12 months under ECCN 3A090, 4A090, 3A001.z, 4A003.z, 4A004.z, 4A005.z, 5A002.z, 5A004.z, 5A992.z, 5D002.z, or 5D992.z (except for items designed or marketed for use in a datacenter and meeting the parameters of 3A090.a)

;

(2) memory bandwidth of the item(s) requested; and (3) whether the items are destined to be aggregated into a datacenter or computing cluster, and, if so: (i) the computing power of the computing cluster, measured in the aggregate TPP of all chips used in the cluster once the cluster is complete; and (ii) whether the cluster will be (a) exclusively for internal use by a company headquartered in the United States or a member of Country Group A:5 or A:6, or (b) used by any other companies not headquartered in A:5 or A:6, or by external parties such as through cloud services.

C. Data Center Validated End-Users (DC VEUs): Universal and National VEUs

In October 2024, BIS amended the EAR to expand Authorization VEU to include Data Center VEU (DC VEU). As noted in that rule, data centers play a vital role in global AI development, and the United States is committed to facilitating international AI development in a way that minimizes risk to national security. With this rule, BIS further expands the DC VEU Authorization by bifurcating it into a universal VEU (UVEU) and a national VEU (NVEU) Authorization. Companies headquartered in, or whose ultimate parent is headquartered in destinations specified in paragraph (a) of supplement no. 5 to part 740 may apply for the UVEU Authorization. With certain limitations, companies headquartered in, or whose ultimate parent is headquartered in, all destinations worldwide except Macau or destinations specified in Country Group D:5, that would like to qualify for exports, reexports, or transfers (in-country) of large amounts of advanced computing integrated circuits, may apply for the NVEU Authorization.

BIS recognizes that advanced compute data centers (DCs) may involve corporate relationships in which different parties own the data center, provide physical security, own the advanced compute assemblies, provide logical security, and are able to access the compute. To clarify the September 2024 DC VEU rule, BIS notes that the party that has ownership of the advanced compute should submit the DC VEU application. If such party cannot directly certify to all of the application information requested in § 748.15, it must inform BIS of the identities of other entities involved in the DC operations. Applicants may be required to obtain written assurances from those other entities during the application review process. If the operator of the advanced compute is different from the owner of the advanced compute, both the advanced compute owner and the advanced compute operator must have a VEU authorization.

As specified in paragraph 6 of Supplement No. 10 to Part 748, all UVEUs will be subject to limitations on where they can geographically allocate their AI computing power, measured by the aggregate TPP of chips that meet or exceed the scope of ECCN 3A090.a. Specifically, a UVEU headquartered in a country listed in paragraph (a) to Supplement no. 5 to Part 740 cannot transfer or install more than 25% of its total AI computing power

—i.e.,

the AI computing power owned by the entity all its subsidiary and parent entities—to or in locations outside of countries listed in paragraph (a) to Supplement No. 5 to Part 740, and cannot transfer or install more than 7% of its total AI computing power to or in any single country outside of those listed in paragraph (a) to Supplement No. 5 to Part 740. Additionally, a UVEU headquartered in the United States cannot transfer or install more than 50% of its total AI computing power outside of the United States.

For all NVEUs, as described in new paragraph (a)(2)(iii)(B) of § 748.15, a per-company, per-country installed base allocation of TPP, as measured by the collective computing power of items subject to ECCNs 3A090.a, 4A090.a, or corresponding .z paragraphs, will apply as follows:

Quarter

Cumulative TPP per-company per-country

allocation

2025 Q1

633,000,000

2025 Q2

949,500,000

2025 Q3

1,266,000,000

2025 Q4

1,582,500,000

2026 Q1

1,899,000,000

2026 Q2

2,690,250,000

2026 Q3

3,481,500,000

2026 Q4

4,272,750,000

2027 Q1-4

5,064,000,000

These TPP allocations were identified through an extensive analysis of the size of AI compute clusters necessary to train the largest AI models, and the rate at which those clusters are likely to grow over the next three years. These allocations represent clusters approximately 12 months, or one generation, behind the cluster size BIS believes will be needed to train the most advanced dual-use AI models. By providing a three-year roadmap, BIS aims to give predictability to industry while reducing the risks posed by the unchecked proliferation of the most advanced AI models and largest clusters

at any given time. These TPP allocations represent permitted cumulative installed base during a given quarter, not newly available TPP in addition to previous-quarter installed bases, and do not count towards or impact country allocations. Additionally, multiple NVEUs may operate in a single country, with each NVEU subject to the quarterly allocations above. Advanced computing ICs that suffer attrition due to factors such as loss, damage, failure, relocation, and resale will no longer count toward allocations. BIS is not identifying specific TPP allocations for future years at this time given the evolving nature of national security requirements, the geopolitical landscape, and the AI industry.

Together with the Departments of State, Energy, and Defense, BIS will review allocations for subsequent years on an annual basis to determine future allocations.

1. Data Center VEU: Universal Validated End User

The UVEU Authorization is available to companies headquartered in the countries listed in paragraph (a) to supplement no. 5 to Part 740. As described in new paragraph (a)(2)(ii)(A) of § 748.15, under the UVEU Application Overview, the UVEU Authorization provides the data centers that own their advanced computing capacity with a single authorization that will allow a UVEU to build DCs around the world, except in Macau or destinations specified in Country Group D:5, provided that the UVEU maintains its status by following the guidelines in supplement no. 10 to part 748. The UVEU is responsible for ensuring it complies with the applicable AI TPP geographic allocations. To receive UVEU status, a DC that owns its advanced computing capacity must certify that it will follow the guidelines outlined in supplement no. 10 to part 748 and go through an intensive application process. As previously noted, if the owner of the advanced compute cannot directly certify to all of the application information requested in § 748.15, it must include in its VEU application to BIS the identities of other entities involved in the DC operations. Through this process, BIS and its interagency partners will be able to assess whether the UVEU applicant meets the guidelines and resolve national security concerns.

Approved applicants for the UVEU authorization will be listed in the EAR as UVEUs along with each authorized address identified in the UVEU application. As new DCs are brought online by the UVEU, it is required to notify BIS 180 days prior to any exports, reexports, or transfers (in-country) to the new DC so that the EAR may be updated to include the new location(s). This notification will allow BIS to update supplement no. 7 to part 748 with the new data center's address to notify exporters and reexporters of the UVEU location address that can receive exports and reexports under this authorization. The UVEU may choose whether to list a corporate address or a physical address of the new data center location. Otherwise, or in the period between notification to BIS and EAR amendment, UVEUs may furnish their BIS authorization letters to exporters and reexporters to enable continuity of exports and reexports to the new country and/or new DC.

A. Data Center VEU: National Validated End-User

A National Validated End-User (NVEU) Authorization is available to all entities headquartered in or located in a destination in Country Groups A, B, or D:1-D:4, except Macau or destinations specified in Country Group D:5, as described in revised § 748.15(b)(2). New paragraph (a)(2)(iii) of § 748.15 describes the requirements to obtain an NVEU. In order to receive NVEU Authorization, a data center operator that owns its advanced computing capacity must apply to BIS and go through an intensive application process that will be subject to interagency review. Information required to be submitted to become a VEU is described in supplement no. 8 to part 748, some provisions of which are revised by this rule, including an update to paragraph (B)(2) of the supplement to require information about business activities and corporate relationships with government or military organizations in Macau and destinations specified Country Group D:5,

e.g.,

direct sales to or contracts with such entities.

Approved applicants for the NVEU Authorization will be listed in the EAR as NVEUs in supplement no. 7 to part 748. This listing will serve to notify exporters and reexporters that the NVEU location can receive exports and reexports under this authorization. The NVEU may choose whether to list a corporate address or a physical address of the new data center location. NVEUs will be subject to the cumulative TPP allocations identified above.

D. License Applications

For transactions that do not meet the terms and conditions for use of license exceptions, and for which the end user does not participate in the DC VEU Authorization, the traditional license application process is available under part 748 of the EAR.

As explained in additional detail below, BIS is instituting specific country allocations of total processing performance (TPP) in new paragraph (b)(10) of § 742.6. As with Authorization VEU allocations, exports and reexports of advanced ICs will be counted against the following country allocation beginning on the effective date of this rule. From 2025 to 2027, countries will be subject to a cumulative maximum installed base allocation of 790,000,000 TPP. This TPP allocation represents permitted cumulative installed base for the entire period to and inclusive of 2027. Advanced computing ICs that suffer attrition due to factors such as loss, damage, failure, relocation, and resale will no longer count toward the allocation.

Accordingly, license applications for 3A090.a, 4A090.a, or corresponding .z items must be accompanied by a purchase order or equivalent firm contractual agreement reflecting the actual volume amount that the applicant seeks to export, reexport, or transfer (in-country). The purchase order requirement is found in paragraph (c) of supplement no. 2 to part 748. The purchase order must be for the fulfilment of actual items to be sold, although it may be contingent on license approval. In addition, licenses for these items generally will carry a one-year validity period during which the items must be exported, re-exported, or transferred (in country), pursuant to the revision to § 750.7(g) made in this rule. Should a lengthier validity period be required, such information must be provided with the license application or a request for extension must be filed in accordance with § 750.7(g)(1) or (2).

BIS is not identifying specific TPP allocations for future years at this time given the evolving nature of national security requirements, the geopolitical landscape, and the AI industry.

Together with the Departments of State, Energy, and Defense, BIS will review allocations for subsequent years on an annual basis.

1. Revision of License Review Policy

To implement the new license review policy for § 742.6(a)(6)(iii)(A), BIS is updating the license review policy in § 742.6(b)(10). Section 742.6(b)(10)(iii)(A)(1) provides that a presumption of denial will apply to applications for Macau, destinations specified in Country Group D:5, and any entity headquartered in, or whose ultimate parent is headquartered in,

Macau or a destination specified in Country Group D:5.

For end users headquartered or located in destinations listed in paragraph (a) of supplement no. 5 to Part 740, license applications will be reviewed under a presumption of approval under new § 742.6(b)(10)(iii)(A)(2).

Under certain circumstances when destination governments assure the U.S. Government of a commitment to protect advanced computing ICs consistent with U.S. national security interests, these TPP allocations may be increased up to 100% for a given destination. Once the U.S. Government has determined that a country has provided appropriate national security assurances, BIS will list that country in paragraph (b) to supplement no. 5 to Part 740. In such a case, the licensing policies pursuant to new § 742.6(b)(10)(iii)(B), would apply with an upward adjustment to country TPP allocations. While the U.S. Government—led by the Departments of State and Commerce—may pursue such government-to-government assurances independently to advance U.S. national security and foreign policy interests, in cases where BIS has not applied an allocation increase to a particular destination, license applicants seeking an upward departure from country TPP allocations should identify such interest in their license applications, along with the contact information for appropriate foreign government officials with whom BIS and interagency partners should engage on such assurances.

For end users headquartered, or whose ultimate parent is headquartered, outside of destinations listed in paragraph (a) or (b) of supplement no. 5 to Part 740, Macau, and Country Group D:5, license applications for 3A090.a, 4A090.a, and corresponding .z items will be subject to a presumption of approval up to specific country allocations in TPP, as described in new § 742.6(b)(10)(iii)(B)(1). BIS will calculate progress toward country allocations by totaling the TPP of 3A090.a, 4A090.a, and corresponding .z items licensed to each destination in a given calendar year. When country allocations have been met for a specific country, licenses will be reviewed under a policy of denial, consistent with new § 742.6(b)(10)(iii)(B)(2).

Together with the Departments of State, Energy, and Defense, BIS will review allocations for subsequent years on an annual basis. Moreover, absent regulatory changes, the licensing policies outlined in § 742.6(a)(6)(iii) will continue to apply.

To keep the public informed on country allocations, BIS will use purchase orders provided in license applications to track fulfillment of country allocations and will provide timely updates to the public on these allocations in aggregate at

http://www.bis.gov/advanced-compute-resources

.

2. Information Required in License Application

Applicants are required to submit the total aggregated TPP volume of each export item on their license application. This information, consistent with new paragraph (c)(4) in supp. no. 2 to Part 748, should be included in block 22(j) in SNAP-R. If applicants are submitting a license for items destined to a country that is subject to a per-country TPP allocation, the applicant must fill out an individual license for each country and calculate the TPP per individual country. Applicants must submit relevant purchase orders and are encouraged to include additional information to support their TPP calculation in their Letter of Explanation (LOE). Calculate the aggregate TPP for each export item by adding the TPP for each integrated circuit. For additional information on calculating TPP, please refer to the Technical Notes to 3A090.

III. Overview of New Controls for AI Model Weights

As of the effective date of this rule on January 13, 2025, in addition to expanding its controls on advanced computing ICs, BIS is imposing new controls on the model weights of the most advanced AI models. Model weights are “numerical parameter[s] within an AI model” that “help determine the model's outputs in response to inputs.” Executive Order 14110 on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. An AI model that lacks trained model weights produces meaningless outputs. Additionally, the developers of the most advanced AI models typically incorporate technical safeguards that help to prevent applications based on the model, such as chatbots or those served through APIs, from completing certain dangerous tasks, such as assisting in the development of nuclear, chemical, biological, or cyber weapons. With access to the model weights, it is easier to remove these safeguards. Model weights for advanced AI models can, moreover, be produced only by training the model on vast quantities of data using thousands of advanced computing ICs over a period of several months or more. Accordingly, model weights can be the most valuable and closely guarded elements of an AI model.

Given the importance of model weights to the functioning of advanced AI models, BIS has determined that, in order to protect U.S. national security and foreign policy interests, it is necessary to impose a global licensing requirement on the model weights of the most advanced AI models. Even if countries and end users of concern are able to obtain or reverse engineer the other elements of an advanced AI model—

e.g.,

the architecture or ancillary code—those actors will be unable to use the model for activities that threaten U.S. national security and foreign policy unless they have the corresponding model weights. And crucially, they will not be able to train their own model weights unless they have access to thousands of advanced computing ICs. Thus, by imposing global controls on the model weights of the most advanced AI models, BIS will make it significantly more difficult for countries and end users of concern to access those models and their functions.

In conjunction with technical experts from across the U.S. government, BIS has determined that a reasonable proxy for the performance of an AI model is the amount of compute—

i.e.,

the number of computational operations—used to train the model. This determination is supported by empirical evidence compiled by leading AI researchers, which shows that the performance of an AI model depends in large part on the number of parameters in the model, the size of the dataset used to train the model, and the amount of compute used to train the model. Although there is disagreement about whether it is more important to maximize the number of parameters or the size of the dataset, there is a general consensus that, given a fixed model architecture, the amount of compute positively correlates with the performance of the model. Accordingly, at the outset of the training process, developers of advanced AI models set a “compute budget,”

i.e.,

a fixed number of operations on which the model will be trained. It is possible, however, that better measures of model capabilities may become available over time. BIS will consider alternative approaches as they become available.

Using this measure, BIS is requiring a license to export, reexport, or transfer (in-country) the model weights of any closed-weight AI model—

i.e.,

a model with weights that are not published—that has been trained on more than 10

26

computational operations. Because the model weights of models trained with fewer than 10

26

computational

operations are already stored at locations across the globe, and such models are available from foreign sources, imposing controls on such models would be ineffective. These models have shown concerning capabilities, however, and technical experts from across the U.S. government agree that the next generation of models—

i.e.,

those trained on 10

26

computational operations—will significantly reduce the barriers to enabling activities that threaten U.S. national security and foreign policy. To ensure that the licensing process consistently accounts for the risks associated with the most advanced AI models, BIS has decided to apply a presumption of denial review policy (implemented in § 742.6(a)(12)) to every license application involving the model weights of those models. This policy is necessary for two interrelated reasons. First, the potential risks to U.S. national security from even one case of diversion are extreme. For example, if a terrorist organization were to obtain the model weights of an advanced AI model, it could potentially gain permanent access to the full range of capabilities of that model. Second, because model weights can be stored, copied, and transferred using basic computer technologies, the risk of diversion is elevated. And if a particular set of model weights is diverted even once, it would be difficult to prevent further dissemination across the world. Accordingly, BIS must scrutinize every license application involving model weights to ensure that the end user does not present a risk of diversion and has adequate security measures in place. A presumption of denial review policy can ensure this consistent level of scrutiny.

In addition to applying to U.S.-origin model weights, this licensing requirement applies to the model weights of certain closed-weight models produced in foreign destinations. As discussed, training an AI model on more than 10

26

computational operations is not possible without advanced computing ICs and other related advanced computing items. BIS has found that many foreign entities that are training advanced AI models or intend to train such models are using advanced computing ICs and related items that were directly produced with U.S. technology. To reduce the risk that such U.S. technology contributes to models that are diverted to malicious actors and used for activities that threaten U.S. national security and foreign policy interests, this IFR creates a new Foreign Direct Product (FDP) rule (implemented in new § 734.9(l)) for the model weights of closed-weight models trained using more than more than 10

26

computational operations.

As with advanced computing ICs, however, BIS is providing a license exception (License Exception AIA, implemented in new § 740.27) for the export or reexport of model weights to certain end users in certain destinations. As discussed, BIS and its interagency partners have identified a set of destinations where (1) the government has implemented measures with a view to preventing diversion of advanced AI technologies, and (2) there is an ecosystem that will enable and encourage firms to use advanced AI models activities that may have significant economic benefits. Those destinations, which are listed in paragraph (a) to Supplement No. 5 to Part 740, are Australia, Belgium, Canada, Denmark, Finland, France, Germany, Ireland, Italy, Japan, Netherlands, New Zealand, Norway, Republic of Korea, Spain, Sweden, Taiwan, the United Kingdom, and the United States. For end users headquartered in these destinations, listed in paragraph (a) of supplement no. 5 to Part 740, BIS is providing a license exception for export or reexport to entities located in all destinations except Macau and those in Country Group D:5. However, exporters and reexporters may not take advantage of this exception unless they ensure that the end user has instituted specific security measures that will reduce the risk of diversion, specified in paragraphs 14, 15, and 18 of supplement no. 10 to Part 748.

Additionally, BIS is not imposing controls on the model weights of open-weight models. At present, there are no open-weight models known to have been trained on more than 10

26

computational operations. Moreover, Commerce and its interagency partners assess that the most advanced open-weight models are currently less powerful than the most advanced closed-weight models, in part because the most advanced open-weight models have been trained on less computing power and because proprietary algorithmic advances have allowed closed-weight model developers to produce more advanced capabilities with the same computational resources. BIS has also determined that, for now, the economic and social benefits of allowing the model weights of open-weight models to be published without a license currently outweigh the risks posed by those models. Specifically, making model weights open ensures that many actors seeking to use the models for economically and socially beneficial activities can do so. This includes small, independent research groups that are seeking to research model safety and trustworthiness, as well as defenses against AI risk, such as cyberattacks. It also includes small commercial entities that are pursuing applications of AI models that require expertise not possessed by leading AI developers; for example, many of the premier foreign language translation applications have been developed by small entities using open-weight models. Wide availability also allows governments and independent researchers to assess the risks posed by these models and develop mitigations. By comparison, the actors that can take advantage of the capabilities of “closed weight” models—

i.e.,

models with weights that have not been made publicly available—are the original developer, actors who negotiate directly with original developers or deployers, and malicious actors that have stolen the weights. In practice, the most advanced closed weight models are, BIS assesses, closely held by their developers.

Accordingly, BIS and its interagency partners are not today imposing controls on open-weight models. BIS also recognizes that users of open-weight models may need to perform additional training operations to fine tune open-weight models for beneficial uses. Accordingly, this IFR makes clear that training an open-weight model with a relatively small amount of additional computational operations does not subject that model to BIS's controls. But as noted in the National Telecommunications and Information Administration's report “Dual-Use Foundation Models with Widely Available Model Weights” published on July 30, 2024, the U.S. Government will continue to actively monitor risks that could arise from open-weight models and assess what actions might need to be taken if heightened risks emerge.

To reduce the economic impact on developers of closed models, BIS will also not require a license for the export, reexport, or transfer (in-country) of the model weights of closed models that are less powerful than the most powerful open-weight model (as determined by the AI Safety Institute and the U.S. Department of Energy). Because the model weights of the most powerful open-weight model will be available to all entities across the world, any entity seeking to use advanced AI models for activities that threaten U.S. national security and foreign policy will have no incentive to divert the model weights of less powerful closed models.

In sum, BIS's new controls for the model weights of the most advanced AI models reflects both BIS's focus on the risks posed by the frontier of AI development and BIS's expectation that increasingly powerful models will continue to be available from foreign sources, rendering controls on general purpose models behind the frontier ineffective. BIS's controls will assist in the responsible management of the risks to national security and public safety posed by technological development at the frontier by ensuring that such models are diffused more broadly in a structured, staged manner. Additionally, restricting the export of model weights, while allowing access to the most advanced AI models through other methods, such as application programming interfaces, can unlock the beneficial uses of AI for users across the world while mitigating the national security and public safety risks posed by these models. Below, BIS explains its controls in more detail.

A. AI Model Weights Technology Controls

In the Commerce Control List (CCL), this rule adds new ECCN 4E091 for `parameters' for advanced AI models, which are defined as having been trained utilizing 10

26

or more `operations.' `Parameters' refers to any value learned during training (

e.g.,

network weights, biases, etc.). `Operations' include any subsequent training, such as fine-tuning the pre-trained model, but does not include the collection and curation of the input training data.

This ECCN is controlled for regional stability (RS) reasons for exports, reexports, and transfers (in-country) to and within all destinations worldwide through new § 742.6(a)(13). The ECCN is also controlled for anti-terrorism (AT) reasons when destined to a country that has an AT:1 license requirement (

i.e.,

Iran in § 742.8, Syria in § 742.9, or North Korea in § 742.19).

See also

parts 744 and 746 of the EAR for additional controls. License applications for items controlled under this RS control will be reviewed under a presumption of denial for all destinations other than those listed in paragraph (a) of supplement no. 5 to part 740, as established in new § 742.6(b)(14) of the EAR. License applications for destinations listed in paragraph (a) of supplement no. 5 to part 740 will be reviewed under a presumption of approval. The license requirements in § 742.6(a)(13) do not apply to deemed exports or deemed reexports for persons employed by entities headquartered in or with an ultimate parent headquartered in the United States or a destination specified in paragraph (a) of supplement no. 5 to Part 740.

As explained above, ECCN 4E091 excludes from the control any open-weight models. Note 1 to the ECCN states that ECCN 4E091 does not control the `parameters' of any artificial intelligence model that has been “published” as defined in § 734.7(a), or that were subject to additional training `operations' applied to “published” `parameters,' such that the additional training `operations' constitute no more than 2x10

25

`operations' or no more than 25 percent of the training `operations' defined in Note 2, whichever is higher. ECCN 4E091 also excludes from the control models that are less powerful than the most powerful open-weight model (as determined by the AI Safety Institute and the U.S. Department of Energy). Note 2 to the ECCN states that ECCN 4E091 does not control the `parameters' of any artificial intelligence model trained utilizing fewer `operations' than the number needed to train an artificial intelligence model as capable, according to an aggregate of widely used benchmarks, as the most advanced artificial intelligence model that has been “published” as defined in § 734.7(a) of the EAR.

As described in Note 2 to ECCN 4E091, to determine if an AI model is excluded from ECCN 4E091, an exporter may either self-classify its model or obtain guidance from BIS. Self-classification may rely on guidance published on BIS's website

http://www.bis.gov/advanced-compute-resources

or a technical opinion issued by the U.S. AI Safety Institute and the Department of Energy. For a BIS classification, exporters should submit a classification request in accordance with the procedures in §§ 748.1 and 748.3 of the EAR.

B. Foreign-Direct Product Rule for AI Model Weights

As described above, access to the model weights of advanced AI models may enable malicious actors to advance military end uses, develop WMD, the deploy offensive cyber operations, and carry out human right abuses. Direct access to the model weights may, for example, enable malicious actors to use the model to provide step-by-step instructions for the creation of chemical or biological weapons, or to develop AI agents capable of conducting advanced cyberattacks. This risk applies with equal force to model weights produced outside the United States using U.S. technology as it does to model weights produced inside the United States. To address the national security and foreign policy risk associated with the production of AI model weights outside of the United States, this rule applies a new Foreign Direct Product Rule (FDPR) in § 734.9(l). Under this new AI model weights FDPR, an item classified under new ECCN 4E091 is subject to the EAR based on product scope criteria to any location, worldwide. License requirements and license review policy are the same as those for ECCN 4E091, meaning that a license is not necessarily required just because this new FDPR establishes jurisdiction over the model. The applicable license requirements depend on the license requirements for 4E091 items, as well as end use and end user license requirements described in part 744 of the EAR.

To meet the new FDPR's product scope, the 4E091 item must be produced by a complete plant or `major component' of a plant that is located outside the United States, when the complete plant or `major component' of a plant, whether made in the United States or a foreign country, is subject to the EAR and specified in ECCN 3A001.z, 3A090, 4A003.z, 4A004.z, 4A005.z, 4A090, 5A002.z, 5A004.z, or 5A992.z. The ICs, servers, and other electronic equipment described in those ECCNs, which would be considered `major components' of a plant under this FDPR, are critical to producing model weights specified in 4E091. The FDPR also includes a note specifying that ECCN 4E091 includes any foreign-produced item that is further trained, including through techniques that follow on initial training, such as fine-tuning and quantization. Thus, the use of items not specified in ECCN 3A001.z, 3A090, 4A003.z, 4A004.z, 4A005.z, 4A090, 5A002.z, 5A004.z, or 5A992.z to conduct further training of a foreign-produced 4E091 item would not impact whether the 4E091 item is subject to the EAR.

C. License Exception Eligibility for AI Model Weights

The only license exception available for new ECCN 4E091 is newly-created License Exception AIA in § 740.27. License Exception AIA authorizes the export, reexport, and transfer (in-country) of ECCN 4E091 to entities located within the destinations listed in paragraph (a) of supplement no. 5 to Part 740. This license exception also authorizes the export, reexport, and transfer (in-country) of AI model weights, including the most advanced AI models specified in ECCN 4E091, to entities headquartered in, or whose ultimate parent company is headquartered in, the destinations listed in paragraph (a) of supplement no. 5 to

Part 740 and located in any destination other than Macau or destinations listed in Country Group D:5. As discussed below, License Exception AIA also is available for certain eligible commodities, software, and technology. License Exception AIA cannot be used to export, reexport or transfer (in-country) ECCN 4E091 or other specified ECCNs to an entity headquartered outside of, or whose ultimate parent company is headquartered outside of, a destination specified in paragraph (a) of supplement no. 5 to Part 740.

D. Red Flag Guidance on AI Model Weights

In supplement no. 3 to part 732—BIS's “Know Your Customer” Guidance and Red Flags—this IFR adds a new red flag to provide compliance guidance to assist exporters, re-exporters, and transferors of AI model weights in complying with BIS's controls. New red flag 28 will help U.S. Infrastructure as a Service (IaaS) cloud computing providers located in the United States identify when training an advanced AI model for a customer that is a U.S. subsidiary of a foreign entity—and transferring the resulting model weights to that customer—creates a potential diversion concern. Under some circumstances, there is a substantial risk that the model weights will be exported from the United States in violation of BIS's controls. New red flag 28 specifies that in scenarios where a U.S. subsidiary of an entity headquartered in destinations other than those listed in paragraph (a) of supplement no. 5 to Part 740 uses a U.S. IaaS provider's products or services to train an AI model that falls within ECCN 4E091 raises a red flag under the EAR that the model weights may be exported to the connected entity without the necessary authorization. For example, if a U.S. IaaS provider provides infrastructure, in the form of clusters of advanced ICs, to train an AI model for a separate AI development organization, once the training run is complete, the model weights of the resulting AI model are transferred to the AI development organization. If a U.S. IaaS provider performs this service for a U.S. subsidiary of a foreign corporation headquartered in a destination to which a license requirement for ECCN 4E091 applies, the performance of the training run and the transfer of model weights creates a substantial risk that the model weights will be diverted to the entity's ultimate parent in violation of the EAR and that the IaaS provider may have aided and abetted a violation of the EAR.

BIS encourages exporters, reexporters, and transferors, as well as IaaS providers serving domestic customers, to take additional steps as part of their compliance programs to determine whether the model weights in question will be exported, reexported, or transferred to a destination subject to a license requirement and, if so, either to apply for a license or inform their customers of the obligation to do so prior to export.

IV. New Definition

Section 772.1 is amended by adding a definition for “model weights.” This term is added to § 772.1 to assist the public to easily find the definition, because it is used in multiple parts of the EAR.

Export Control Reform Act of 2018

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (codified, as amended, at 50 U.S.C. 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule. In particular, and as noted elsewhere, Section 1753 of ECRA (50 U.S.C. 4812) authorizes the regulation of exports, reexports, and transfers (in-country) of items subject to U.S. jurisdiction. Further, Section 1754(a)(1)-(16) of ECRA (50 U.S.C. 4813(a)(1)-(16)) authorizes, inter alia, the establishment of a list of controlled items; the prohibition of unauthorized exports, reexports, and transfers (in-country); the requirement of licenses or other authorizations for exports, reexports, and transfers (in-country) of controlled items; apprising the public of changes in policy, regulations, and procedures; and any other action necessary to carry out ECRA that is not otherwise prohibited by law. Pursuant to Section 1762(a) of ECRA (50 U.S.C. 4821(a)), these changes can be imposed in a final rule without prior notice and comment.

Rulemaking Requirements

1. Executive Orders 12866, 13563, and 14094 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects and distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits and of reducing costs, harmonizing rules, and promoting flexibility.

This interim final rule has been designated a “significant regulatory action” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501

et seq.

) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. Although this rule makes important changes to the EAR for items controlled for national security reasons, BIS believes that the overall increases in burdens and costs associated with the following information collections due to this rule are estimated to increase the number of submissions by 800 which is not expected to exceed the current approved estimates.

• 0694-0088, “Simplified Network Application Processing System,” which carries a burden-hour estimate of 29.6 minutes for a manual or electronic submission;

• 0694-0137 “License Exceptions and Exclusions,” which carries a burden-hour estimate average of 1.5 hours per submission (Note: submissions for License Exceptions are rarely required);

• 0694-0096 “Five Year Records Retention Period,” which carries a burden-hour estimate of less than 1 minute; and

• 0607-0152 “Automated Export System (AES) Program,” which carries a burden-hour estimate of 3 minutes per electronic submission.

Additional information regarding these collections of information—including all background materials—can be found at

https://www.reginfo.gov/public/do/PRAMain

and using the search function to enter either the title of the collection or the OMB Control Number.

3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.

4. Pursuant to section 1762 of ECRA (50 U.S.C. 4821), this action is exempt from the Administrative Procedure Act (APA) (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation and delay in effective date.

5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or

by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601,

et seq.,

are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

List of Subjects

15 CFR Parts 732 and 750

Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.

15 CFR Part 734

Administrative practice and procedure, Exports, Inventions and patents, Research, Science and technology.

15 CFR Parts 740

Administrative practice and procedure, Exports, Reporting and recordkeeping.

15 CFR Part 742

Exports, Terrorism.

15 CFR Part 744

Exports, Reporting and recordkeeping requirements, Terrorism.

15 CFR Part 748

Administrative practice and procedure, Exports, Reporting and recordkeeping requirements, Terrorism.

15 CFR Part 762

Administrative practice and procedure, Business and industry, Confidential business information, Exports, Reporting and recordkeeping requirements.

15 CFR Part 772

Exports.

15 CFR Part 774

Exports, Reporting and Recordkeeping Requirements.

Accordingly, parts 732, 734, 740, 742, 744, 748, 750, 762, 772, and 774 of the Export Administration Regulations (15 CFR parts 730 through 774) are amended as follows:

PART 732—STEPS FOR USING THE EAR

1. The authority citation for part 732 continues to read as follows:

Authority:

50 U.S.C. 4801-4852; 50 U.S.C. 4601

et seq.;

50 U.S.C. 1701

et seq.;

E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783.

2. Supplement No. 3 to part 732 is amended by adding paragraph 28 under “Red Flags” to read as follows:

Supplement No. 3 to Part 732—BIS's “Know Your Customer” Guidance and Red Flags

Red Flags

28. You will be providing Infrastructure-as-a-Service (IaaS) products or services, or other computing products or services, to assist in training an AI model with model weights captured by ECCN 4E091 for an entity headquartered, or whose ultimate parent is headquartered, in any destination other than those listed in paragraph (a) of supplement no. 5 to part 740 of the EAR. Such assistance creates a substantial risk that such AI model weights, due to their digital nature, will be exported or reexported to a destination for which a license is required and, if a license is not obtained, that the IaaS provider will have aided and abetted in a violation of the EAR. In such cases, the IaaS provider should inquire if the customer intends to export the model and if so, apply for a license as required or inform the customer of their obligation to do so prior to export.

PART 734—SCOPE OF THE EXPORT ADMINISTRATION REGULATIONS

3. The authority citation for part 734 continues to read as follows:

Authority:

50 U.S.C. 4801-4852; 50 U.S.C. 4601

et seq.;

50 U.S.C. 1701

et seq.;

E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. 223; Notice of November 7, 2024, 89 FR 88867 (November 8, 2024); Pub. L. 118-50.

4. Section 734.9 is amended by:

a. Revising paragraph (h); and

b. Adding paragraph (l).

The addition and revision read as follows:

§ 734.9

Foreign-Direct Product (FDP) Rules.

(h)

Advanced computing FDP rule.

A foreign-produced item is subject to the EAR if it meets both the product scope in paragraph (h)(1) of this section and the destination scope in paragraph (h)(2) of this section. See § 742.6(a)(6) of the EAR for license requirements and license exceptions and § 742.6(b)(10) for license review policy applicable to foreign-produced items that are subject to the EAR under this paragraph (h).

(1)

Product scope of advanced computing FDP rule.

The product scope applies if a foreign-produced item meets the conditions of either paragraph (h)(1)(i) or (ii) of this section.

(i)

“Direct product” of “technology” or “software.”

A foreign-produced item meets the product scope of this paragraph (h) if it meets both of the following conditions:

(A) The foreign-produced item is the “direct product” of “technology” or “software” subject to the EAR and specified in 3D001, 3D901, 3D991, 3D992, 3D993, 3D994, 3E001, 3E002, 3E003, 3E901, 3E991, 3E992, 3E993, 3E994, 4D001, 4D090, 4D993, 4D994, 4E001, 4E992, 4E993, 5D001, 5D002, 5D991, 5E001, 5E991, or 5E002 of the CCL; and

(B) The foreign-produced item is:

(

1

) Specified in ECCN 3A090, 3E001 (for 3A090), 4A090, or 4E001 (for 4A090) of the CCL; or

(

2

) An integrated circuit, computer, “electronic assembly,” or “component” specified in ECCN 3A001.z, 4A003.z, 4A004.z, 4A005.z, 5A002.z, 5A004.z, or 5A992.z.

(ii)

Product of a complete plant or 'major component' of a plant that is a “direct product.”

A foreign-produced item meets the product scope of this paragraph (h) if it meets both of the following conditions:

(A) The foreign-produced item is produced by any complete plant or 'major component' of a plant that is located outside the United States, when the plant or 'major component' of a plant, whether made in the United States or a foreign country, itself is a “direct product” of U.S.-origin “technology” or “software” that is specified in ECCN 3D001, 3D901, 3D991, 3D992, 3D993, 3D994, 3E001, 3E002, 3E003, 3E901, 3E991, 3E992, 3E993, 3E994, 4D001, 4D090, 4D993, 4D994, 4E001, 4E992, 4E993, 5D001, 5D991, 5E001, 5E991, 5D002, or 5E002 of the CCL; and

(B) The foreign-produced item is:

(

1

) Specified in ECCN 3A090, 3E001 (for 3A090), 4A090, or 4E001 (for 4A090) of the CCL; or

(

2

) An integrated circuit, computer, “electronic assembly,” or “component” specified in ECCN 3A001.z, 4A003.z, 4A004.z, 4A005.z, 5A002.z, 5A004.z, or 5A992.z.

(2)

Destination or end use scope of the advanced computing FDP rule.

A foreign-produced item meets the destination scope of this paragraph (h)(2) if there is “knowledge” that the foreign-produced item is:

(i) Destined to any location worldwide or will be incorporated into any “part,” “component,” “computer,” or “equipment” not designated EAR99 destined to any location worldwide; or

(ii) “Technology” “developed” by an entity headquartered in, or whose ultimate parent company is headquartered in, either Macau or a destination specified in Country Group

D:5, for the “production” of a mask or an integrated circuit wafer or die.

Note to 5 paragraph (h)(2)(ii):

These end-use requirements under paragraph (h) apply when any entity headquartered in, or whose ultimate parent company is headquartered in, either Macau or a destination specified in Country Group D:5, is a party to any transaction involving the foreign-produced item, e.g., as a “purchaser,” “intermediate consignee,” “ultimate consignee,” or “end-user.”

(l)

AI Model weights FDP rule.

A foreign-produced item is subject to the EAR if it meets both the product scope in paragraph (l)(1) of this section and the destination scope in paragraph (l)(2) of this section. See § 742.6(a)(13) of the EAR for license requirements and § 742.6(b)(10) for license review policy applicable to foreign-produced items that are subject to the EAR under this paragraph (l).

(1)

Product scope.

The product scope applies if a foreign-produced item is specified in ECCN 4E091 and is produced by a complete plant or `major component' of a plant that is located outside the United States, when the complete plant or `major component' of a plant, whether made in the United States or a foreign country, is subject to the EAR and specified in ECCN 3A001.z, 3A090, 4A003.z, 4A004.z, 4A005.z, 4A090, 5A002.z, 5A004.z, or 5A992.z.

Note 7 to paragraph (l)(1):

A foreign-produced item specified in ECCN 4E091 includes any foreign produced item that is further trained or modified via post-training techniques such as fine-tuning, quantization, or other techniques.

(2)

Destination scope.

A foreign-produced 4E091 item meets the destination scope of this paragraph (l)(2) if the foreign-produced item is destined to any location worldwide.

PART 740—LICENSE EXCEPTIONS

5. The authority citation for part 740 continues to read as follows:

Authority:

50 U.S.C. 4801-4852; 50 U.S.C. 4601

et seq.;

50 U.S.C. 1701

et seq.;

22 U.S.C. 7201

et seq.;

E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783.

6. Section 740.2 is amended by revising paragraph (a)(9)(ii) introductory text and paragraph (a)(9)(ii)(A) to read as follows:

§ 740.2

Restrictions on all License Exceptions.

(a) * * *

(9) * * *

(ii) The item is identified in paragraph (a)(9)(ii)(A) or (B) of this section and is being exported, reexported, or transferred (in-country) to or within a destination specified in Country Group D:1, D:4, or D:5, excluding any destination also specified in Country Groups A:5 or A:6, or to an entity headquartered in or whose ultimate parent is headquartered in, Macau or a destination specified in Country Group D:5, wherever located, and the license exception is other than: TMP, restricted to eligibility under the provisions of § 740.9(a)(6); NAC/ACA, under the provisions of § 740.8; RPL, under the provisions of § 740.10; GOV, restricted to eligibility under the provisions of § 740.11(b); TSU under the provisions of § 740.13(a) and (c); HBM under the provisions of § 740.25; AIA under the provisions of § 740.27 (for ECCN 4E091 to entities headquartered in countries listed in paragraph (a) of supplement no. 5 to part 740 and located in destinations other than Macau or Country Group D:5); or ACM under the provisions of § 740.28. Items restricted to eligibility only for the foregoing license exceptions are:

(A) Controlled under ECCNs 3A090, 4A090, 4E091, or associated software and technology in 3D001, 3E001, 4D090, and 4E001;

7. Section 740.8 is amended by revising the introductory text of paragraph (a) and paragraph (c)(1) to read as follows:

§ 740.8

Notified Advanced Computing (NAC) and Advanced Computing Authorized (ACA).

(a)

Eligibility requirements.

License Exception NAC authorizes the export and reexport of any item classified in ECCN 3A090 (except for 3A090.c), 4A090, 3A001.z, 4A003.z, 4A004.z, 4A005.z, 5A002.z, 5A004.z, 5A992.z, 5D002.z, or 5D992.z, except for items designed or marketed for use in a datacenter and meeting the parameters of 3A090.a, to Macau and Country Group D:5 or an entity headquartered in or whose ultimate parent is headquartered in, Macau or a destination specified in Country Group D:5, wherever located. License Exception ACA authorizes the export, reexport, and transfer (in-country) of any item classified in ECCN 3A090 (except for 3A090.c), 4A090, 3A001.z, 4A003.z, 4A004.z, 4A005.z, 5A002.z, 5A004.z, 5A992.z, 5D002.z, or 5D992.z, except for items designed or marketed for use in a datacenter and meeting the parameters of 3A090.a, to or within any destination worldwide (except Macau, a destination specified in Country Group D:5, or an entity headquartered in, or whose ultimate parent is headquartered in, Macau or a destination specified in Country Group D:5, wherever located), as well as transfers (in-country) within Macau and destinations specified in Country Group D:5. These license exceptions may be used provided the export, reexport, or transfer (in-country) meets all of the applicable criteria identified under this paragraph (a) and none of the restrictions in paragraph (b) of this section.

(c) * * *

(1)

Procedures.

At least twenty-five calendar days prior to exports or reexports using License Exception NAC, you must provide prior notification under License Exception NAC by submitting a completed application in SNAP-R in accordance with § 748.1 of the EAR. The following blocks must be completed, as appropriate: Blocks 1, 2, 3, 4, 5 (by marking box 5 export license or reexport license), 9, 14, 16, 17, 18, 19, 21, 22(a), (d), (e), (f), (g), (h), (i), (j), 23, 24, and 25 according to the instructions described in supplement no. 1 to part 748 of the EAR. Box 9 under special purpose must include NAC. The application must include certain information to allow for BIS to determine if the item in question otherwise meets the criteria for an item eligible for License Exception NAC. Required information to include in the NAC submission is as follows:

(i) Total Processing Performance of the item, as defined in ECCN 3A090;

(ii) Performance density of the item, as defined in ECCN 3A090;

(iii) Data sheet or other documentation showing how the item is designed and marketed (in particular, whether it is designed or marketed for datacenter use);

(iv) All NAC and license approvals to the end-user in the past 12 months;

(v) Memory bandwidth of the item(s); and

(vi) Whether the items are destined for use in a computing cluster, and, if so:

(A) The computing power of the computing cluster, measured in the aggregate TPP of all chips used in the cluster once the cluster is complete; and

(B) Whether the cluster will be:

(

1

) Exclusively for internal use by a company headquartered in the United States or a destination specified in Country Group A:5 or A:6, or

(

2

) Used by any other companies not headquartered in A:5 or A:6, or by external parties such as through cloud services.

8. Add §§ 740.27, 740.28, and 740.29 to read as follows:

§ 740.27

License Exception Artificial Intelligence Authorization (AIA).

(a)

Scope.

This license exception authorizes the export, reexport, and transfer (in-country) of the items identified in paragraphs (a)(1) and (a)(2)(i) of this section to entities located within destinations listed in paragraph (a) of supplement no. 5 to this part, unless the entity is headquartered outside of, or has an ultimate parent company headquartered outside of, a destination specified in paragraph (a) of supplement no. 5 to this part, with an additional authorization for certain model weights in paragraph (a)(3) of this section, subject to additional conditions. This license exception cannot be used to provide items identified in paragraph (a)(1) of this section to entities headquartered outside of or located outside of paragraph (a) in supplement no. 5 to this part for training AI models specified in ECCN 4E091. Prior to export, reexport, or transfer (in-country) of eligible items in paragraph (a)(1) of this section, the exporter, reexporter, or transferor must obtain the certification described in (b)(2) of this section and submit it to BIS.

(1) Eligible commodities for this exception are: ECCNs 3A001.z.1.a, z.2.a, z.3.a, z.4.a; 3A090.a; 4A003.z.1.a, z.2.a; 4A004.z.1; 4A005.z.1; 4A090.a; 5A002.z.1.a, z.2.a, z.3.a, z.4.a, z.5.a; 5A004.z.1.a, z.2.a; 5A992.z.1; 5A004.z.1.a, z.2.a; and 5A992.z.1.

(2) Eligible software and technology for this exception are:

(i) Advanced Integrated Circuits: 3D001 (for “software” for commodities controlled by 3A001.z.1.a, z.2.a, z.3.a, z.4.a and 3A090.a); 4D001 (for “software” for commodities controlled by 4A003.z.1.a, z.2.a, 4A004.z.1, and 4A005.z.1); 4D090 (for “software” for commodities controlled by 4A090.a); 4E001 (for “technology” for commodities controlled by 4A003.z.1.a, z.2.a, 4A004.z.1, 4A005.z.1, 4A090.a or “software” specified by 4D001 (for 4A003.z.1.a, z.2.a 4A004.z.1, and 4A005.z.1) or 4D090.a); ; 5D002.z.1.a z.2.a, z.3.a, z.4.a, z.5.a, z.6.a, z.7.a, z.8.a, and z.9.a, or 5D992.z.1; 5E002 (for “technology” for commodities controlled by 5A002.z.1.a, z.2.a, z.3.a, z.4.a, z.5.a or 5A004.z.1.a, z.2.a or “software” specified by 5D002 (for 5A002. z.1.a, z.2.a, z.3.a, z.4.a, z.5.a or 5A004.z.1.a, z.2.a commodities)); and 5E992 (for “technology” for commodities controlled by 5A992.z.1 or “software” controlled by 5D992.z.1.)

(ii) AI Model Weights specified by ECCN 4E091, subject to the additional requirements in paragraph (a)(3) of this section.

(3) Additional authorization for AI model weights. For items identified in paragraph (a)(2)(ii) of this section only, this license exception also authorizes the export, reexport, and transfer (in-country) to entities headquartered, or whose ultimate parent company is headquartered, in the destinations listed in paragraph (a) of supplement no. 5 to this part 740, as long as:

(i) The entities obtaining the items are located outside Macau or destinations specified in Country Group D:5, and

(ii) These items will be stored in a facility that complies with paragraphs 14, 15 and 18 of the guidelines outlined in supplement no. 10 to part 748 (regardless of whether the facility is designated as a VEU).

(b)

Requirements prior to use of this license exception for eligible commodities, software, and technology identified in paragraphs (a)(1) and (a)(2)(i) of this section—

(1)

Furnish ECCN.

The exporter, reexporter, or transferor must furnish to the ultimate consignee the ECCN of each item to be exported, reexported, or transferred (in-country) pursuant to this section. Once furnished to a particular ultimate consignee, the ECCN need not be refurnished to that same ultimate consignee at the time the same exporter, reexporter, or transferor makes an additional export, reexport, or transfer (in-country) of the same item, if the ECCN(s) remains accurate at the time of the additional export, reexport, or transfer (in-country). For purposes of this license exception, the ultimate consignee is the entity that has ownership over the eligible item(s) in paragraph (a)(1) or (a)(2)(ii).

(2)

Ultimate consignee certification.

Prior to use of this license exception for items identified in (a)(1) only, the exporter, reexporter, or transferor must obtain a certification from the ultimate consignee. The certification is a one-time certification provided by each ultimate consignee that will be receiving items through the use of this license exception. The certification should provide that: [INSERT NAME(S) OF ULTIMATE CONSIGNEE(S)]:

(i) Is aware that [INSERT GENERAL DESCRIPTION AND APPLICABLE ECCN(S) OF ITEMS TO BE SHIPPED (

e.g.,

Boards classified under ECCN 4A090.a)) will be shipped pursuant to License Exception Artificial Intelligence Authorization (AIA) of the Export Administration Regulations (EAR), 15 CFR parts 730-774;

(ii) Agrees not to export, reexport, or transfer (in-country) these items to any end use or end user prohibited pursuant to Part 744 of the EAR without BIS authorization;

(iii) Agrees items received under this license exception are not, without prior authorization from the U.S. Department of Commerce's Bureau of Industry and Security (BIS), to be used to provide Infrastructure-as-a-Service (IaaS) access for training AI models specified in ECCN 4E091 for entities headquartered or located outside of, or whose ultimate parent company is headquartered outside of destinations listed in paragraph (a) of Supplement No. 5 to part 740;

(iv) Agrees that the items received under this license exception will not be exported, reexported, or transferred (in-country) to an entity headquartered or located outside of, or whose ultimate parent company is headquartered outside of paragraph (a) of Supplement No. 5 to Part 740 without prior authorization from BIS; and

(v) Inserts [NAME(S), SIGNATURE(S), AND TITLE(S) OF PERSON(S) AUTHORIZED TO SIGN THIS DOCUMENT ON BEHALF OF THE ULTIMATE CONSIGNEE, AND DATE(S) DOCUMENT IS SIGNED].

(3)

Notification to ultimate consignee of AIA shipment.

With each shipment under License Exception AIA, the exporter (or reexporter or transferor as applicable), must notify the ultimate consignee in writing that the shipment is made pursuant to License Exception AIA. The notice must either specify which items are subject to License Exception AIA or state that the entire shipment is made pursuant to License Exception AIA. The notice must clearly identify the shipment to which it applies. The written notice may be conveyed by paper documents or by electronic methods such as facsimile or email.

(c)

Reporting requirement.

Once the exporter, reexporter, or transferor obtains the certification from the ultimate consignee for items identified in paragraph (a)(1) only, prior to the initial export, reexport or transfer (in-country), the exporter, reexporter, or transferor must submit the certification to

EARReports@bis.doc.gov,

with the subject line: AIA Certification. Following submission of the certification, exporters, reexporters and in-country transferors are not required to sign or provide a subsequent certification if the notification described in (b)(4) is provided to the ultimate consignee. This reporting requirement is only applicable if the ultimate consignee is receiving items identified in paragraph (a)(1) with a cumulative total processing performance (TPP) of 253,000,000.

§ 740.28

License Exception Advanced Compute Manufacturing (ACM).

(a)

Scope.

License Exception ACM authorizes the export, reexport, and transfer (in-country) of eligible items specified in paragraph (b) to `private sector end users' for the “development,” “production,” or storage (in a warehouse or other similar facility) prior to export, reexport, or transfer (in country) to the ultimate end user of eligible items specified in paragraph (b) for items that are ultimately destined to customers outside of Macau or destinations specified in Country Group D:5, unless otherwise authorized.

(b)

Eligible commodities, software, and technology.

Items controlled by ECCNs 3A001.z; 3A090; 3D001 (for “software” for commodities controlled by 3A001.z or 3A090); 3E001 (for “technology” for commodities controlled by 3A001.z or 3A090); 4A003.z; 4A004.z; 4A005.z; 4A090; 4D001 (for “software” for commodities controlled by 4A003.z, 4A004.z, and 4A005.z); 4D090 (for “software” for commodities controlled by 4A090); 4E001 (for commodities controlled by 4A003.z, 4A004.z, 4A005.z, 4A090 or “software” specified by 4D001 (for 4A003.z, 4A004.z, or 4A005.z), or 4D090 (for “software” for commodities controlled by 4A090)); 5A002.z; 5A004.z; 5A992.z; 5D002.z; 5D992.z; 5E002 (for “technology” for commodities controlled by 5A002.z or 5A004.z or “software” specified by 5D002 (for 5A002.z or 5A004.z commodities)); or 5E992 (for “technology” for commodities controlled by 5A992.z or “software” controlled by 5D992.z).

(c)

Ineligible destinations.

License Exception ACM does not authorize the export, reexport, or transfer (in-country) to Macau or any destination specified in Country Group D:5, or to any consignee wherever located when the ultimate consignee is headquartered in, or the ultimate consignee's ultimate parent company is headquartered in, Macau or a destination specified in Country Group D:5.

(d)

Private sector end user.

A `private sector end user' is either an individual who is not acting on behalf of any government (other than the U.S. Government), or a commercial firm (including its subsidiary and parent firms, and other subsidiaries of the same parent) that is not wholly owned by, or otherwise controlled by any government (other than the U.S. Government).

(e)

Accounting.

Exporters, reexporters, and transferors must maintain a system of distribution that allows them to account for the number of controlled items transferred to, and subsequently out, of the facility. Such accounting should be done for each facility, with records updated every six months or more frequently.

§ 740.29

License Exception Low Processing Performance (LPP).

(a)

Scope.

License Exception LPP authorizes the export and reexport of up to 26,900,000 cumulative total processing performance (TPP) of advanced computing integrated circuits per-calendar year directly to a single ultimate consignee. If the ultimate consignee is headquartered in a destination specified in paragraph (a) of supplement no. 5 to part 740, then the ultimate consignee may apply the cumulative TPP of exports and reexports of eligible commodities under this license exception toward the cumulative TPP limit of a different entity that will operate the items in paragraph (b). This license exception does not authorize transfers (in-country).

(b)

Eligible commodities.

Eligible commodities are those under ECCNs 3A001.z.1.a, z.2.a, z.3.a, z.4.a; 3A090.a; 4A003.z.1.a, z.2.a; 4A004.z.1; 4A005.z.1; 4A090.a; 5A004.z.1.a, z.2.a; and 5A992.z.1.

(c)

Eligible destinations.

This License Exception is available except:

(1) To destinations specified in Country Group D:5 or Macau, or

(2) To any destination when the ultimate consignee is headquartered in or has an ultimate parent company headquartered in Macau or a destination specified in Country Group D:5.

(d)

Restriction on annual processing power volume of LPP.

The total TPP volume of all exports and reexports of eligible commodities under this license exception made by all exporters and reexporters to a single ultimate consignee per calendar year may not exceed 26,900,000 TPP; however, there is no restriction on the number of shipments or the number of exporters and reexporters, provided that TPP volume is not exceeded. This annual TPP limit applies to shipments by all exporters and reexporters to the same ultimate consignee even though the shipments are made through more than one intermediate consignee.

(e)

Prohibited end use and end user.

This license exception cannot be used to export or reexport items to any end use or end user prohibited under Part 744.

(f)

Ultimate Consignee Statement.

Prior to use of this license exception the exporter or reexporter must obtain a certification from the ultimate consignee that: [INSERT NAME(S) OF ULTIMATE CONSIGNEE(S)]:

(i) Is aware that [INSERT GENERAL DESCRIPTION AND APPLICABLE ECCN(S) OF ITEMS TO BE SHIPPED (

e.g.,

Boards classified under ECCN 4A090.a)] will be shipped pursuant to License Exception Low Processing Performance;

(ii) Agrees not to export, reexport, or transfer these items to any use or user prohibited under Part 744 of the Export Administration Regulations;

(iii) Certifies that they have not received a `cumulative TPP' of 26,900,000 of ECCNs 3A001.z.1.a, z.2.a, z.3.a, z.4.a; 3A090.a; 4A003.z.1.a, z.2.a; 4A004.z.1; 4A005.z.1; 4A090.a; 5A002.z.1.a, z.2.a, z.3.a, z.4.a, z.5.a; 5A004.z.1.a, z.2.a; 5A992.z.1, 5A004.z.1.a, z.2.a; and 5A992.z.1 items in the relevant calendar year under License Exception LPP.

(iv) Inserts [NAME(S), SIGNATURE(S), AND TITLE(S) OF PERSON(S) AUTHORIZED TO SIGN THIS DOCUMENT ON BEHALF OF THE ULTIMATE CONSIGNEE, AND DATE(S) DOCUMENT IS SIGNED].

(g)

Reporting requirement.

(1) Exporters and reexporters, having obtained the required certification in paragraph (f) prior to exporting or reexporting eligible items, must provide a copy of that certification to BIS by email to

EARReports@bis.doc.gov

with subject line “LPP Shipment” within 30 days of the date on which the export or reexport takes place.

(2) Ultimate consignees receiving eligible commodities under this License Exception TPP must notify BIS by email to

EARReports@bis.doc.gov

with subject line “LPP TPP Limit Reached” whenever they have received the maximum allowable 26,900,000 TPP under this license exception in a calendar year in all shipments from all exporters and reexporters. Notification to BIS should be made as soon as the ultimate consignee actually receives the final shipment of eligible commodities that exhausts the consignee's annual TPP volume limit.

(3) Exporters and reexporters, prior to exporting or reexporting the eligible items, must notify BIS by email to

EARReports@bis.doc.gov

with the subject line “LPP Shipment” of any shipment with an aggregate TPP of 3,200,000.

(h)

Definitions

—(1)

Ultimate consignee.

For purposes of this license exception, the ultimate consignee is the ultimate parent entity that has ultimate ownership over the items in paragraph (b).

(2)

Cumulative TPP.

The `cumulative TPP' is the total amount of TPP, as defined in the Technical Notes to 3A090, of all eligible commodities in

paragraph (b) that are received by a single ultimate consignee in all shipments from all exporters and reexporters in a calendar year. Cumulative TPP should be calculated by adding the individual TPP for any items specified in 3A090.a and 4A090.a and any items specified in 3A001.z, 4A003.z, 4A004.z, 4A005.z, 5A002.z, 5A004.z, or 5A992.z that meet or exceed the parameters of 3A090.a or 4A090.a.

9. Part 740 is amended by adding Supplement No. 5 to read as follows:

Supplement No. 5 to Part 740—Artificial Intelligence Authorization Countries

(a) Destinations eligible:

Australia

Belgium

Canada

Denmark

Finland

France

Germany

Ireland

Italy

Japan

Netherlands

New Zealand

Norway

Republic of Korea

Spain

Sweden

Taiwan

United Kingdom

United States

(b) Destinations that have provided government assurances to the U.S. Government and therefore are subject to a higher country allocation.

PART 742—CONTROL POLICY—CCL BASED CONTROLS

10. The authority citation for part 742 continues to read as follows:

Authority:

50 U.S.C. 4801-4852; 50 U.S.C. 4601

et seq.;

50 U.S.C. 1701

et seq.;

22 U.S.C. 3201

et seq.;

42 U.S.C. 2139a; 22 U.S.C. 7201

et seq.;

22 U.S.C. 7210; Sec. 1503, Pub. L. 108-11, 117 Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential Determination 2003-23, 68 FR 26459, 3 CFR, 2004 Comp., p. 320; Notice of November 7, 2024, 89 FR 88867 (November 8, 2024).

11. Section 742.6 is amended by

a. Revising paragraph (a)(6)(iii);

b. Adding paragraph (a)(13);

c. Revising paragraph (b)(10)(iii); and

d. Adding (b)(14).

The revisions and additions read as follows:

§ 742.6

Regional stability.

(a) * * *

(6) * * *

(iii)(A)

Worldwide license requirement.

A license is required to export, reexport, or transfer (in-country) items specified in ECCNs 3A001.z.1.a, z.2.a, z.3.a, z.4.a; 3A090.a; 3D001 (for “software” for commodities controlled by 3A001.z.1.a, z.2.a, z.3.a, z.4.a, or 3A090.a); 3E001 (for “technology” for commodities controlled by 3A001.z.1.a, z.2.a, z.3.a, z.4.a, or 3A090.a); 4A003.z.1.a, z.2.a; 4A004.z.1; 4A005.z.1; 4A090.a; 4D001 (for “software” for commodities controlled by 4A003.z.1.a, z.2.a, 4A004.z.1, and 4A005.z.1); 4D090 (for “software” for commodities controlled by 4A090.a); 4E001 (for commodities controlled by 4A003.z.1.a, z.2.a, 4A004.z.1, 4A005.z.1, 4A090.a or “software” specified by 4D001 (for 4A003.z.1.a, z.2.a, 4A004.z.1, or 4A005.z.1), or 4D090 (for “software” for commodities controlled by 4A090.a)); 5A002.z.1.a, z.2.a, z.3.a, z.4.a, z.5.a; 5A004.z.1.a, z.2.a; 5A992.z.1; 5D002.z.1.a, z.2.a, z.3.a, z.4.a, z.5.a, z.6.a, z.7.a, z.8.a, and z.9.a; 5D992.z.1; 5E002 (for “technology” for commodities controlled by 5A002.z.1.a, z.2.a, z.3.a, z.4.a, z.5.a or 5A004.z.1.a, z.2.a or “software” specified by 5D002 (for 5A002.z.1.a, z.2.a, z.3.a, z.4.a, z.5.a or 5A004.z.1.a, z.2.a commodities)); or 5E992 (for “technology” for commodities controlled by 5A992.z.1 or “software” controlled by 5D992.z.1.) to or within any destination worldwide.

(B)

Country Groups D:1, D:4, or D:5 license requirement excluding destination also specified in Country Groups A:5 or A:6.

A license is required to export, reexport, or transfer (in-country) items specified in ECCNs 3A001.z.1.b, z.2.b, z.3.b, z.4.b; 3A090.b; 3D001 (for “software” for commodities controlled by 3A001.z.1.b, z.2.b, z.3.b, z.4.b; 3A090.b); 3E001 (for “technology” for commodities controlled by 3A001.z.1.b, z.2.b, z.3.b, z.4.b, or 3A090.b); 4A003.z.1.b, z.2.b; 4A004.z.2; 4A005.z.2; 4A090.b; 4D001 (for “software” for commodities controlled by 4A003.z.1.b, z.2.b, 4A004.z.2, and 4A005.z.2); 4D090 (for “software” for commodities controlled by 4A090.b); 4E001 (for commodities controlled by 4A003.z.1.b, z.2.b, 4A004.z.2, 4A005.z.2, 4A090.b or “software” specified by 4D001 (for 4A003.z.1.b, z.2.b, 4A004.z.2, or 4A005.z.2), or 4D090 (for “software” for commodities controlled by 4A090.b)); 5A002.z.1.b, z.2.b, z.3.b, z.4.b, z.5.b; 5A004.z.1.b, z.2.b; 5A992.z.2; 5D002.z.1.b, z.2.b, z.3.b, z.4.b, z.5.b, z.6.b, z.7.b, z.8.b, and z.9.b; 5D992.z.2; 5E002 (for “technology” for commodities controlled by 5A002.z.1.b, z.2.b, z.3.b, z.4.b, z.5.b or 5A004.z.1.b, z.2.b or “software” specified by 5D002 (for 5A002. z.1.b, z.2.b, z.3.b, z.4.b, z.5.b or 5A004.z.1.b, z.2.b commodities)); or 5E992 (for “technology” for commodities controlled by 5A992.z.2 or “software” controlled by 5D992.z.2.) to or within a destination in Country Groups D:1, D:4, or D:5 excluding destinations also specified in Country Groups A:5 or A:6.

(13)

RS requirement that applies to artificial intelligence model weights.

A license is required for the export, reexport, and transfer (in-country) of items specified in ECCN 4E091 to all destinations worldwide. The license requirements in this paragraph (a)(13) do not apply to deemed exports or deemed reexports for `permanent regular employees,' as that term is defined § 734.20(d)(2), employed by entities headquartered in or with an ultimate parent headquartered in a destination specified in paragraph (a) of Supplement No. 5 to Part 740.

(b) * * *

(10) * * *

(iii)

License review policy for paragraph (a)(6)(iii)(A)

—(A)(

1

)

Policy for Country Group D:5 and Macau.

For items specified in paragraph (a)(6)(iii)(A) of this section, applications for exports, reexports, or transfers (in-country) to or within Macau or destinations specified in Country Group D:5 or to an entity headquartered in, or whose ultimate parent company is headquartered in, either Macau or a destination specified in Country Group D:5 will be reviewed under a presumption of denial.

(

2

)

Policy for countries in paragraph (a)of supplement no. 5 to part 740.

For items specified in paragraph (a)(6)(iii)(A) of this section, applications for exports, reexports, or transfers (in-country) to or within destinations listed in paragraph (a) to supplement no. 5 of Part 740, or to entities headquartered in, or whose ultimate parent company is headquartered in, a destination listed in paragraph (a) to supplement no. 5 of Part 740 will be reviewed under a presumption of approval.

(B)

Country Allocations and licensing policy for all other destinations.

For items specified in paragraph (a)(6)(iii)(A) of this section, applications for exports, reexports, or transfers (in-country) to or within a destination or to entities headquartered, or whose ultimate parent is headquartered, in a destination not listed in either paragraph (a) or (b) of supplement no. 5 of Part 740:

(

1

)

Not exceeding the country allocation.

Applications for exports, reexports, or transfers (in-country) will be reviewed under a presumption of approval, up to a per-country allocation of 790,000,000 TPP for the period from 2025 to 2027, to or within destinations other than Country Group D:5 or Macau or to entities not headquartered in or whose ultimate parent company is not headquartered in destinations in Country Group D:5 or Macau. These TPP allocations represent permitted cumulative installed base, not newly available TPP in addition to previous-year installed bases. BIS will calculate progress toward country allocations by totaling the TPP of 3A090.a, 4A090.a, and corresponding .z items licensed to each destination cumulatively beginning in 2025. Items exported, re-exported, or transferred (in-country) before 2025 will not count toward country allocations. Please visit

www.bis.gov

/advanced-compute-resources for an update on whether the country allocations have been met.

(

2

)

Exceeding the country allocation.

After the country allocations above are met, applications will be reviewed under a policy of denial. Together with the Departments of State, Energy, and Defense, BIS will review allocations for subsequent years on an annual basis.

(C) For items specified in paragraph (a)(6)(iii)(A) of this section, applications for exports, reexports, or transfers (in-country) to or within destinations listed in paragraph (b) of supplement no. 5 to Part 740, TPP allocations may be increased up to 100% for that destination pursuant to government-to-government assurances, as applicable. Accordingly, the licensing policy in paragraph (b)(10)(iii)(B) will apply, up to the adjusted country allocations.

(iv) For items specified in paragraph (a)(6)(iii)(B) of this section:

(A)

Presumption of approval.

Applications for exports, reexports, or transfers (in-country) will be reviewed with a presumption of approval to or within destinations not specified in Country Group D:5 or Macau or to an entity not headquartered in, and whose ultimate parent company is not headquartered in, either Macau or a destination specified in Country Group D:5.

(B)

Presumption of denial.

Applications for exports, reexports, or transfers (in-country) will be reviewed under a presumption of denial to or within Macau or destinations specified in Country Group D:5 or to an entity headquartered in, or whose ultimate parent company is headquartered in, either Macau or a destination specified in Country Group D:5.

(14)

License Review Policy for AI Model Weights in (a)(13) of this section.

Applications to export, reexport, or transfer (in-country) items classified under ECCN 4E091 will be reviewed under a presumption of denial for end users headquartered, or with an ultimate parent headquartered, outside of destinations listed in paragraph (a) to supplement No. 5 to part 740.

Note to paragraph (b)(14):

Note 2 to ECCN 4E091 explains that 4E091 does not control the `parameters' of any artificial intelligence model trained utilizing fewer `operations' than the number needed to train an artificial intelligence model as capable, according to an aggregate of widely used benchmarks, as the most advanced artificial intelligence model that has been “published” as defined in § 734.7(a) of the EAR.

PART 744—CONTROL POLICY: END-USER AND END-USE BASED

12. The authority citation for part 744 is revised to read as follows:

Authority:

50 U.S.C. 4801-4852; 50 U.S.C. 4601

et seq.;

50 U.S.C. 1701

et seq.;

22 U.S.C. 3201

et seq.;

42 U.S.C. 2139a; 22 U.S.C. 7201

et seq.;

22 U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice of September 18, 2024, 89 FR 77011 (September 20, 2024); Notice of November 7, 2024, 89 FR 88867 (November 8, 2024).

13. Revise § 744.23(a)(3)(i) to read as follows:

§ 744.23

“Supercomputer,” “advanced-node integrated circuits,” and semiconductor manufacturing equipment end use controls.

(a) * * *

(3) * * *

(i)(A) Any item subject to the EAR and specified in ECCN 3A001.z.1.b, z.2.b, z.3.b, z.4.b; 3A090.b; 4A003.z.1.b, z.2.b; 4A004.z.2; 4A005.z.2; 4A090.b; 5A002.z.1.b, z.2.b, z.3.b, z.4.b, z.5.b; 5A004.z.1.b, z.2.b; 5A992.z.2, 5D002.z.1.b, z.2.b, z.3.b, z.4.b, z.5.b, z.6.b, z.7.b, z.8.b, and z.9.b; 5D992.z.2 destined to any destination other than those specified in Country Groups D:1, D:4, or D:5 (excluding any destination also specified in Country Groups A:5 or A:6) for an entity that is headquartered in, or whose ultimate parent company is headquartered in, either Macau or a destination specified in Country Group D:5 (

e.g.,

a PRC-headquartered cloud or data server provider located outside of Country Groups D:1, D:4, or D:5 (excluding any destination also specified in Country Groups A:5 or A:6)).

(B) Any item subject to the EAR and specified in ECCN 3A090.c destined to any destination other than Macau or those specified in Country Group D:5, for an entity that is headquartered in, or whose ultimate parent company is headquartered in, either Macau or a destination specified in Country Group D:5.

PART 748—APPLICATIONS (CLASSIFICATION, ADVISORY, AND LICENSE) AND DOCUMENTATION

14. The authority citation for part 748 is revised to read as follows:

Authority:

50 U.S.C. 4801-4852; 50 U.S.C. 4601

et seq.;

50 U.S.C. 1701

et seq.;

E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 13, 2024, 8 FR 66187 (August 15, 2024).

15. Section 748.3 is amended by adding paragraph (f) to read as follows:

§ 748.3

Classification requests and advisory opinions.

(f)

Classification requests for artificial intelligence models.

Classification requests may be submitted to confirm that technology is not controlled under ECCN 4E091 because the artificial intelligence model has been trained utilizing fewer computational `operations' than the number needed to train a model as capable, according to an average of widely used benchmarks, as the most advanced artificial intelligence model that has been “published” as defined in § 734.7(a) of the EAR. Refer to the technical notes to ECCN 4E091 for instructions regarding self-classifications of artificial intelligence models.

16. Section 748.15 is amended by revising the introductory text and paragraphs (a)(1), (a)(2), (b), (d)(2), and (f) to read as follows:

§ 748.15

Authorization Validated End-User (VEU).

Validated end-users (VEU) are those who have been previously approved by BIS pursuant to the requirements of this section. To be eligible for authorization VEU, exporters, reexporters, and validated end-user applicants must adhere to the conditions and restrictions set forth in paragraphs (a) through (f) of this section. If a request for VEU

Authorization for a particular end-user is not granted, no new license requirement is triggered. In addition, such a result does not render the end user ineligible for license approvals from BIS. There are two types of VEU authorization: General VEU Authorization and Data Center VEU Authorization. General VEU Authorizations permit the export, reexport, and transfer to validated end-users of any eligible items that will be used in a specific eligible destination. Data Center VEU Authorizations permit the export and reexport to validated end-users of any eligible items that will be used in specific data centers. A data center is a facility or “facilities” that house a multi-racked, networked computer system that include servers, storage devices, and networking equipment. Data Center VEU Authorizations may be either universal or national authorizations.

(a)(1)

Eligible end-users for General VEU Authorizations and Data Center VEU Authorizations.

The only end users to whom eligible items may be exported, reexported, or transferred under a General VEU Authorization or a Data Center VEU Authorization are those validated end-users identified in Supplement No. 7 to this part. Those entities were added as VEUs according to the provisions in this Section and Supplement Nos. 8 and 9 to this part.

(2)

Requests for authorizations

—(i)

Advisory opinion.

To apply for a General VEU Authorization or Data Center VEU Authorization, requests for authorization must be submitted in the form of an advisory opinion request, as described in § 748.3(c), and must include a list of items (except as excluded by paragraph (c) of this section), identified by ECCN, intended for export, reexport, or transfer (in-country) to an eligible end-user, once approved.

(ii)

Applications for Universal VEU (UVEU) Authorization—

(A)

Application Overview.

A UVEU authorization should be submitted by the owner of the advanced computing ICs. To qualify for UVEU authorization, the owner of the advanced computing ICs must certify that it will follow the guidelines in Supplement No. 10 to this part. The owner of the advanced compute must certify that it will follow the guidelines in paragraphs 14, 15, and 18 of Supplement No. 10 to this part on or before January 15, 2026. If the owner of the advanced computing ICs cannot certify to all of the guidelines in Supplement No. 10 to this part, it must notify BIS in its application of the other entities involved in its operations. The applicant must also provide signed certifications from such entities as set forth in Supplement No. 10 to this part. For UVEUs, if the operator of the advanced compute is different from the owner of the advanced compute, the operator must itself have an Authorization UVEU. As appropriate, BIS will adjudicate complete UVEU applications within 30 days of receipt. A UVEU will need to file a notification with BIS when building a datacenter in a new location 180 days before any exports, reexports, or transfers (in-country) to the new datacenter. The notification should include the physical address of the new data center location. BIS will use this information to update the eligible destination column in the validated end user list in Supplement No. 7 to this part. The UVEU may choose whether to list a corporate address or a physical address of the new data center location. The UVEU may furnish its BIS authorization letter as proof of its authorization to receive exports, reexports, or transfers (in-country) prior to the publication of an amendment to Supplement No. 7 to this part that includes a physical address, or where Supplement No. 7 includes a corporate address but not a physical address. No other requirements may be placed on the UVEU beyond those described in Supplement No. 10 to this part as a condition for granting the original UVEU application.

(B)

UVEU Compute Geographic Allocations.

UVEUs will be subject to the geographic allocations identified in paragraph 6 or Supplement No. 10 to this part.

(iii)

Applications for National VEU (NVEU) Authorization

—(A)

Application Overview.

The NVEU Authorization will allow an entity to receive exports and reexports in a specific country as specified in their NVEU authorization. For every additional country in which the NVEU wants to operate, the owner of the advanced compute must obtain a separate NVEU authorization. To qualify for NVEU authorization, the owner of the advanced computing ICs must adhere to guidelines provided in Supplement No. 10 to this part but, depending on its location and the national security and foreign policy risks associated with that location, may be subject to other requirements. The owner of the advanced compute must certify that it will follow the guidelines in paragraphs 14, 15, and 18 of Supplement No. 10 to this part on or before January 15, 2026. If the owner of the advanced computing ICs cannot certify to all of the guidelines in Supplement No. 10 to this part, it must notify BIS in its application of the other entities involved in its operations. Applicants must provide written assurances from those other entities consistent with Supplement No. 10 to this part during the application review process. Government-to-Government assurances between the United States and the government of the country in which the NVEU wishes to operate may be sought before a NVEU is granted. Where multiple entities will own and operate the NVEU they should submit a joint application. For NVEUs, if the operator of the advanced compute is different from the owner of the advanced compute, the operator must itself have its own Authorization NVEU. After receiving NVEU Authorization, the NVEU will be listed as such in Supplement No. 7 to this part. The NVEU may inform BIS if it prefers that Supplement No. 7 list a corporate address or a physical address of the new data center location. Once approved for Authorization NVEU by BIS, the NVEU may furnish its BIS authorization letter that includes physical addresses as proof of its authorization to receive exports, reexports, or transfers (in-country) prior to the publication of an amendment to Supplement No. 7 that includes a physical address, or where Supplement No. 7 includes a corporate address but not a physical address.

(B)

NVEU TPP Allocation.

NVEUs will be subject to a per-NVEU per-country installed base allocation of total processing performance (TPP), as measured by the collective computing power of items subject to ECCNs 3A090.a, 4A090.a, or corresponding .z paragraphs, as provided below:

Table 1 to Paragraph

(a)(2)(iii)(B)

Quarter

Cumulative

per-company

per-country

allocation

in TPP

2025 Q1

633,000,000

2025 Q2

949,500,000

2025 Q3

1,266,000,000

2025 Q4

1,582,500,000

2026 Q1

1,899,000,000

2026 Q2

2,690,250,000

2026 Q3

3,481,500,000

2026 Q4

4,272,750,000

2027 Q1-4

5,064,000,000

These TPP allocations represent permitted cumulative installed base during a given quarter, not newly available TPP in addition to previous-quarter installed bases, and do not count towards or impact country allocations. Advanced computing ICs that suffer attrition due to factors such as loss, damage, failure, relocation, and resale do not count toward allocations.

(iv)

Information to include and address for submissions.

To ensure a thorough review, applications for Authorization VEU must include the information described in Supplement No. 8 to this part. Applications for UVEU and NVEU should also include information demonstrating that the applicant can adhere to the guidelines described in Supplement No. 10 to this part. Requests for authorization will be accepted from exporters, reexporters, or end users. Submit the request to: The Office of Exporter Services, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Pennsylvania Avenue NW, Room 2099B, Washington, DC 20230. Mark the package “Request for [insert “General,” “Data Center—Universal,” or “Data Center—National” as appropriate] Authorization Validated End-user.”

(b)

Eligible destinations

—(1)

General VEU Authorizations.

General VEU Authorizations may be used for the following destinations:

(i) The People's Republic of China.

(ii) India.

(2)

Data Center VEU Authorizations.

(i) UVEU must be headquartered in, or have their ultimate parent company headquartered in, destinations listed in paragraph (a) of Supplement No. 5 to Part 740, and UVEU data centers may be located anywhere, except in Macau or destinations specified in Country Group D:5.

(ii) NVEU may be headquartered, have an ultimate parent headquartered, or located in a destination specified in Country Groups A, B, or D:1-D:4, except Macau or destinations specified in Country Group D:5. NVEU data centers can be built around the world, except in Macau or destinations specified in Country Group D:5.

(d) * * *

(2)

Data Center VEU Authorizations.

Items obtained under Data Center VEU Authorizations may not be used for any activities described in part 744 of the EAR. Eligible validated end users who obtain items under VEU may only:

(i) Use such items at the end user's own facility located in an authorized destination;

(ii) Consume such items during use; or

(iii) In-country transfers and reexports are not permitted under Data Center VEU Authorization unless the transfer (in-country) or reexport is to a VEU authorized location by the same VEU or a separate authorization is obtained.

Note 1 to paragraph (d):

Authorizations set forth in supplement no. 7 to this part for General VEUs and Data Center NVEUs are country-specific. Authorization as a validated end-user for one country specified in paragraph (b) of this section does not constitute authorization as a validated end-user for any other country specified in that paragraph for those types of VEUs.

(f)

Reporting and review requirements

—(1)

Reports—

(i)

Reexport Information Required for both types of VEU authorizations.

Reexporters who make use of General VEU Authorizations are required to submit annual reports to BIS. Reexporters who make use of Data Center VEU Authorizations are required to submit semi-annual reports to BIS. For either authorization, reexporters must include, for each validated end user to whom the exporter or reexporter exported or reexported eligible items:

(A) The name and address of each validated end-user to whom eligible items were reexported;

(B) The eligible destination to which the items were reexported;

(C) The quantity of such items;

(D) The value of such items; and

(E) The ECCN(s) of such items.

(ii)

End user reports for Data Center VEU Authorizations.

End users who make use of Data Center VEU Authorizations must submit reports to BIS semi-annually. End users must submit the following information, including, as appropriate:

(A) A record of current inventory of eligible items received;

(B) Dates of when eligible items were received; and

(C) For NVEUs, a list of current customers.

(iii)

Deadlines.

For reexporters making use of General VEU Authorization, reports are due by February 15 of each year, and must cover the period from January 1 through December 31 of the prior year. For reexporters and end users making use of Data Center VEU Authorization, reports are due semiannually:

(A) The first report is due July 15 of each year and must cover the period from January 1 through June 30;

(B) The second report is due January 15 of each year and must cover the period from July 1 to December 31 of the previous year.

(iv)

Addresses.

Reports must be sent to: Office of Exporter Services, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Room 2099B, Washington, DC 20230. Mark the package “General Authorization Validated End-User Report” or “Data Center Authorization Validated End-user Report.”

(2)

Reviews.

Records related to activities covered by General or Data Center VEU Authorizations that are maintained by exporters, reexporters, transferors, and VEU will be reviewed on a periodic basis. Upon request by BIS, exporters, reexporters, transferors, and validated end-users must allow review of records, including on-site reviews covering the information set forth in paragraphs (e) and (f)(1) of this section.

17. Amend supplement No. 2 to part 748 by adding paragraphs (c)(3) and (4) to read as follows:

Supplement No. 2 to Part 748—Unique Application and Submission Requirements

(c) * * *

(3)

Purchase orders for Artificial Intelligence commodities.

License applications for items controlled under ECCNs 3A090.a, 4A090.a, 3A001.z, 4A003.z, 4A004.z, 4A005.z, 5A002.z, 5A004.z, or 5A992.z require the submission of a purchase order or equivalent contractual agreement with the submission of the license application. The purchase order may be contingent on approval of the license. Upon approving a license for these items, BIS will generally limit the licensed quantity to the quantity specified on the purchase order.

(4)

License applications for Artificial Intelligence commodities.

Applicants are required to submit the total aggregated TPP value of each export item on their license application. This information should be included in block 22(j) in SNAP-R. If applicants are submitting a license for items destined to a country that is subject to a per-country TPP allocation, the applicant must fill out an individual license for each country and calculate the TPP per individual country. Applicants are encouraged to include information to support their TPP calculation in their Letter of Explanation (LOE). Calculate the aggregate TPP for each export item by adding the TPP for each integrated circuit. For additional information on calculating TPP, please refer to the Technical Notes to 3A090.

18. Amend supplement No. 8 to part 748 by revising paragraphs B(2), (6), (9), and (10), and adding B(11) to read as follows:

Supplement No. 8 to Part 748—Information Required in Requests for VEU Authorization

B * * *

(2) An overview of any business activity or corporate relationship that the candidate has with either government or military organizations of Macau or a destination specified in Country Group D:5;

(6) For NVEUs, absent a legal prohibition or other such exceptional circumstances, a list of current and potential customers of the data center;

(9) An overview of the applicant's supply chain risk management plan to limit PRC-origin equipment specified in paragraph 3 of Supplement No. 10 to Part 748 from entering the data-center environment and supply chain;

(10) An overview of the applicant's export control training program and compliance program procedures; and

(11) (NVEU applicants only) An overview of the applicant's ability to verify that items subject to the license requirement in § 742.6(a)(6)(iii) have not been moved from the specific country authorized for export or reexport by the NVEU (

e.g.

from the ping times to nearby secure servers);

19. Supplement No. 10 to part 748 is added to read as follows:

Supplement No. 10 to Part 748—Data Center VEU Authorization Guidelines

I. Certification and Policy Requirements Relating to National and Universal Validated End Users (VEU)

Vetting Requirements

1. General Compliance and Proven Track Record.

The VEU must have a credible plan to meet or demonstrated track record of meeting established physical, cyber, and personnel security standards for large-scale data center operations and of complying with U.S. export control laws, a credible plan to or demonstrated track record of respecting human rights, as well as a clear and feasible plan for doing so in a destination that is not Macau, specified in Country Group D:5, or listed in paragraph (a) to Supplement No. 5 to Part 740.

2. Foreign Military and Intelligence Ties.

a. The VEU, to include all subsidiary and parent entities (as well as their personnel in their professional capacities), must be free of ties to any `military end users' (as that term is defined in § 744.21(g)) or `military-intelligence end users' (as that term is defined in § 744.22(f)(2)).

b. Ties include research and development agreements and joint activities.

3.

Foreign Technology Ties.

The VEU, to include all subsidiary and parent entities (as well as their personnel in their professional capacities), must adhere to the U.S. rules on outbound investment at 31 CFR part 850 as applied to U.S. persons regardless of whether such VEU, entity, or individual is a U.S. person, without giving effect to any exception under 31 CFR 850.501(g), except that non-U.S. persons must submit materials to BIS, not the Department of the Treasury. Any notifications or other information that, because of this paragraph, would be required to be submitted in order to adhere to 31 CFR part 850 should be submitted to BIS as part of the VEU application. (For the avoidance of doubt, any notification or other information that would be required to be submitted pursuant to 31 CFR part 850 should continue to be submitted to the Department of the Treasury). The VEU must also adhere to determinations, including any prohibitions and mitigations, made under Commerce's Information Communication Technology Services program at 15 CFR part 791, and the VEU must demonstrate that it has eliminated supply chain dependencies on advanced semiconductors specified in ECCN 3A090.a, 4A090.a, or .z derivatives meeting or exceeding the parameters of ECCN 3A090.a or 4A090.a and advanced networking equipment specified in ECCN 4A003.g, 5A001, 5A002.a, or 5A992.a. produced by any entities headquartered in Macau or destinations specified in Country Group D:5. The VEU must also demonstrate that it has eliminated supply chain dependencies on equipment and services listed by the Federal Communications Commission as covered by Section 2 of the Secure and Trusted Communications Networks Act of 2019. The VEU must also notify the U.S. Government, through the VEU program, of all cooperative activities, such as joint ventures, with any entities headquartered in Macau or a destination specified in Country Group D:5 or any individuals or entities that are on the EAR's Entity List or OFAC's Specially-Designated Nationals and Blocked Persons List. The VEU must report to BIS all equity interests (including contingent equity interests) or ownership stakes in the VEU by, or debt or obligations of the VEU from similar financial arrangements to, any entity. headquartered in Macau or a destination specified in Country Group D:5 or any individual or entities that are on the EAR's Entity List or OFAC's Specially-Designated Nationals and Blocked Persons List, with the exception of investments under 1 percent or $1 million, whichever is lower, individually or as aggregated across (a) entities that are affiliated or have formal or informal arrangements to act in concert, or (b) departments, agencies, or instrumentalities of, or that are controlled by, the national or subnational governments of Macau or a destination specified in Country Group D:5, in a VEU whose equity securities are primarily traded on an exchange in a country listed in paragraph (a) to Supplement No. 5 to Part 740.

Export Restrictions

4. Transfer of Chips.

The VEU may not, without authorization from BIS, transfer chips, assemblies, or computers that meet or exceed the scope of ECCN 3A090.a, 4A090.a, or .z items meeting or exceeding the parameters of ECCN 3A090.a or 4A090.a to any of the following:

a. Any entity located in, or headquartered in, Macau or a destination specified in Country Group D:5;

b. Persons of any nationality working for or on behalf of a party on the EAR's Entity List, ISN's nonproliferation sanctions lists, or OFAC's Specially Designated Nationals and Blocked Persons List;

c. Persons of any nationality employed by a government entity of Macau or a government entity of a destination specified in Country Group D:5 or presenting a high risk of facilitating diversion to Macau or a destination specified in Country Group D:5.

These requirements should not be read as allowing any transfers that otherwise require a license.

5. Intra-company Transfer Notification.

[

Only for VEUs accredited via a UVEU

] The UVEU must notify the BIS 60 days in advance of its intention to transfer any chips between countries in which the UVEU is using the UVEU authorization for such transfer, as well as any planned construction or installations of data centers in countries not previously included in prior notifications to BIS. BIS retains the right to impose licensing requirements for transfers of chips and/or to require additional conditions for entry into these countries.

6.

Geographic allocations. Only for entities headquartered in countries listed in paragraph (a) to Supplement no. 5 to Part 740 with UVEU status:

The UVEU cannot transfer or install more than 25% of its total AI computing power, measured as the aggregate Total Processing Power (TPP) of chips that meet or exceed the scope of ECCN 3A090.a and are owned by the entity and all its subsidiary and parent entities, to or in locations outside of countries listed in paragraph (a) to Supplement No. 5 to Part 740, and cannot transfer or install more than 7% of its total AI computing power to or in any single country outside of those listed in paragraph (a) to Supplement No. 5 to Part 740).

Only for U.S.-headquartered entities with UVEU status:

The UVEU cannot transfer or install more than 50% of it

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