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BIS's new enforcement guidance clarifies license requirement for exports of advanced computing items to entities outside of country group D:5 and Macau

08 June 2026

Key takeaways

Exporters must continue to seek BIS licenses to, for example, export, reexport, or transfer (in-country) advanced computing items to all destinations worldwide when such items are destined to or for an entity headquartered in, or whose ultimate parent company is headquartered in, Country Group D:5 or Macau.

BIS clarified that this headquarters-based license requirement, which was first introduced in November 2023 in an end-user control (§ 744.23), prior to the AI Diffusion Rule but moved to a different regulatory provision (§ 742.6) under the AI Diffusion Rule, remains in effect notwithstanding BIS' May 2025 press release announcing its intent to rescind and not enforce the AI Diffusion Rule.

Data centers who may have received controlled advanced computing items that were not authorized under a valid BIS license are not required to cease ongoing use, storage, disposal, or servicing of those items because of this guidance, until further notice from BIS.

On May 31, 2026, the Department of Commerce, Bureau of Industry and Security ("BIS") issued enforcement guidance (the “Guidance”) clarifying that a license is still required to export, reexport, or transfer (in-country) advanced computing items (i.e., items classified under Export Control Classification Numbers (“ECCNs”) 3A090.a and .b, 4A090.a and .b, and related .z paragraph items) to entities worldwide when such entities are headquartered in or have an ultimate parent headquartered in Country Group D:5 (including China) or Macau. This guidance responds to questions BIS received regarding whether this license requirement remained in effect for certain “.a” advanced computing items following BIS’s May 2025 decision not to enforce the Framework for Artificial Intelligence Diffusion (the "AI Diffusion Rule").

Regulatory history of license requirement for “.a” items

The license requirement addressed in the Guidance was first introduced in an interim final rule effective as of November 17, 2023 and implemented through an end-user control in § 744.23(a)(3) of the Export Administration Regulations ("EAR"). This provision imposed a license requirement to export, reexport, or transfer (in-country) items classified under ECCNs 3A090, 4A090, and related .z paragraph items, when there is “knowledge” at the time of export, reexport, or transfer (in-country) that the item is destined 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 in a destination not otherwise excluded).

In January 2025, BIS moved the license requirement for ".a" items (i.e., ECCNs 3A090.a and 4A090.a) and related .z paragraph items from § 744.23(a)(3) into the worldwide license requirement created in the AI Diffusion Rule for advanced computing items set forth in the Regional Stability ("RS") controls at § 742.6(a)(6)(iii)(A). In May 2025, BIS subsequently announced its intent to rescind the AI Diffusion rule and stated that BIS enforcement officials had been instructed not to enforce the rule.

As noted in the Guidance, these developments created a question as to whether the preexisting license requirement established in November 2023 was still being enforced for the “.a” advanced computing items (or only for “.b” advanced computing items) and related .z subparagraph items to Country Group D:5 and Macau-headquartered entities located outside of destinations that were subject to a license requirement prior to the AI Diffusion Rule, and whether BIS’s stated nonenforcement policy related to the AI Diffusion Rule would apply to exports, reexports and transfers (in-country) of such items.

BIS clarifies non-enforcement policy and continued license requirement

The Guidance clarifies that the preexisting license requirement originally established in November 2023 will continue to be enforced for advanced computing items classified under the covered “.a” and related “.z” subparagraphs to all destinations outside the United States when such items are to or for entities headquartered in, or whose ultimate parent company is headquartered in, Country Group D:5 or Macau, but clarifies that the license requirement will continue to apply pursuant to the RS controls in § 742.6(a)(6)(iii)(A) of the EAR, rather than the end-user controls in § 744.23(a)(3).

Notably, the RS controls impose a license requirement on a strict liability basis – as such, there is no requirement that the exporter have “knowledge” at the time of export, reexport, or transfer (in-country) that the advanced computing item is destined for an entity headquartered in or with an ultimate parent company in Country Group D:5 or Macau. BIS further explains that, because the license requirement predates the AI Diffusion Rule, the nonenforcement policy with respect to the AI Diffusion Rule’s destination-based license requirements for these advanced computing items would only apply to the extent such items are not for entities headquartered in or with an ultimate parent company headquartered in Country Group D:5 or Macau. Therefore, exporters should bear in mind that moving forward, BIS could pursue enforcement actions relating to the export, reexport, or transfer of advanced computing items classified under ECCNs 3A090.a and 4A090.a, in addition to 3A090.b, 4A090.b, and related ".z" paragraph items, to a D:5 or Macau-headquartered entity located outside of those destinations on a strict liability basis.

The guidance makes clear that these specific license requirements for advanced computing items operate independently of the AI Diffusion Rule and remain in effect notwithstanding the agency’s decision not to enforce the AI Diffusion Rule. Accordingly, exporters should continue to seek licenses for transactions involving those specified items to any entity located worldwide that is headquartered in or with an ultimate parent headquartered in Country Group D:5 or Macau, unless an exception specified in § 740.2(a)(9)(ii) is available.

Guidance for data center operators

The Guidance further notes that "bona fide operators of data centers who are otherwise engaged in activities consistent with the EAR are not required to cease the ongoing use, storage, disposal, or servicing of advanced computing items because of this guidance, until further notice from BIS." This clarification indicates that the Guidance is not intended to disrupt the existing operations of data centers who may have received “.a” and related .z subparagraph advanced computing items, suggesting that such activities would not trigger a violation of General Prohibition Ten pursuant to § 736.2(b)(10) of the EAR.

Authored by Stephen Propst, Anthony Capobianco, Josh Gelula, Anne Fisher, and Logan McDaniel.