BILLING CODE 3510–33–P
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 734, 744 and 772
[Docket No. 240712-0190]
RIN 0694-AI06
Standards-Related Activities and the Export Administration Regulations
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Interim final rule with request for comments.
SUMMARY: In this interim final rule, the Bureau of Industry and Security (BIS) amends the
Export Administration Regulations (EAR) to revise the scope and the terms used in the EAR to
describe “standards-related activities” that are subject to the EAR. BIS is making these revisions
to ensure that export controls and associated compliance concerns do not impede the
participation and leadership of U.S. companies in legitimate standards-related activities.
DATES: Effective date: This rule is effective [INSERT DATE OF PUBLICATION IN THE
FEDERAL REGISTER].
Comment date: Comments must be received by BIS no later than [INSERT DATE 60 DAYS
AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].
ADDRESSES: You may submit comments, identified by docket number BIS-2020-0017 or RIN
0694-AI06, through the Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments. You can find this interim final rule by searching for its
regulations.gov docket number, which is BIS-2020-0017.
All filers using the portal should use the name of the person or entity submitting
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 also 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.” The “BC” and “P” should be followed by the name of the
person or entity submitting the comments. Any submissions with file names that do not begin
with a “BC” or “P” will be assumed to be public and will be made publicly available through
http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Susan Kramer, Regulatory Policy Division,
Bureau of Industry and Security, Department of Commerce. Phone: (202) 482-2440; Email:
Susan.Kramer@bis.doc.gov.
SUPPLEMENTARY INFORMATION:
A. Background
Participation and leadership in standards development is crucial to protecting and
enhancing U.S. national and economic security and has been instrumental to the global
technological leadership of the United States. Standards development underpins U.S. economic
prosperity and fortifies U.S. leadership in critical and emerging technologies. The U.S. standards
development system is unique because it is built upon a wide variety of processes that are open,
voluntary, decentralized, and led by the private sector. These processes feature openness to
participation by materially interested stakeholders and consensus-based decision making.
Finalized standards are primarily published by private sector standards organizations, not the
U.S. Government.

On May 4, 2023, the Biden-Harris Administration announced the “United States
Government National Standards Strategy for Critical and Emerging Technology” (USG
NSSCET). The USG NSSCET is intended to support and complement existing private sector-led
activities and plans, including the American National Standards Institute (ANSI) United States
Standards Strategy (USSS), with a focus on critical and emerging technology(ies) (CET).
Consistent with the USG NSSCET strategy, the Commerce Department is committed to
engaging “with a broad range of private sector, academic and other key stakeholders, including
foreign partners, to address gaps and bolster U.S. participation in [CET] standards development
activities.” As outlined in the USG NSSCET, the U.S. Government is prioritizing efforts for CET
standards development in identified areas that are essential to U.S. national security and
competitiveness in critical industries including biotechnologies; positioning, navigation and
timing services; communications and networking technologies; and quantum information
technologies among others. The USG NSSCET outlines four objectives (investment,
participation, workforce, and integrity and inclusivity) and eight corresponding lines of effort to
ensure that the United States remains a global leader in developing merit-based standards that
embrace transparency, openness, impartiality and consensus, effectiveness and relevance,
coherence, and broad participation. More information regarding the USG NSSCET can be found
here: https://www.whitehouse.gov/wp-content/uploads/2023/05/US-Gov-National-StandardsStrategy-2023.pdf.
Since 2019, BIS has made a number of revisions to the EAR (15 CFR parts 730-774) that
have affected U.S. participation and leadership in standards-related activities. Most recently, BIS
published an interim final rule, “Authorization of Certain “Items” to Entities on the Entity List in
the Context of Specific Standards Activities” (see 87 FR 55241 (September 9, 2022)) (the
September 2022 rule), that amended the EAR to authorize the release of specified items subject
to the EAR when such release is for a “standards-related activity” as defined in the EAR (a term
in double quotes indicates the term is defined in part 772 (Definition of Terms) of the EAR).

Additional information about that process, the listing of Huawei Technologies Co., Ltd and its
non-U.S. affiliates (collectively “Huawei”), and associated licensing requirements can be found
at 84 FR 22961 (May 21, 2019) (background section providing a brief overview of how entities
are added to the Entity List); see also 87 FR at 55241 (background section describing licensing
requirements for Huawei as a result of being added to the Entity List).
The revisions promulgated in the September 2022 rule sought to ensure that export
controls do not impede the participation and leadership of U.S. companies in standards-related
activities. As noted in that rule, any impediment to U.S. participation in standards development
forums is a national security threat to the United States because it not only limits U.S. leadership
in standards development, but other countries are already racing to replace U.S. participation
with their own leadership and standards. In many cases, a decrease in U.S. participation not only
undermines U.S. national security and foreign policy interests but also contributes to a potential
future global standards environment that works to oppose U.S. interests.
BIS Regulatory Actions and Standards
BIS has been actively involved on issues related to standards and export controls since
the addition of Huawei to supplement no. 4 to part 744 (Entity List) of the EAR on May 16, 2019
(See 84 FR 22961 (May 21, 2019)). The addition of Huawei to the Entity List imposed a license
requirement on all exports, reexports and transfers (in-country) to Huawei and its listed affiliates.
Since that action and subsequent additions of other Huawei affiliates to the Entity List, BIS has
engaged with industry as well as the interagency on export controls and standards-related
activities and has published two interim final rules specific to how the EAR treat standardsrelated activities.
a) TGL and the June 2020 IFR
First, to avoid disruption to existing U.S. and global telecommunications networks, on
May 22, 2019, BIS issued a Temporary General License (TGL) to authorize certain activities
with Huawei, including, among other things, U.S. industry’s participation as necessary for the

development of 5G standards by a duly recognized standards body when Huawei was also
participating in the standards-related activities (see 84 FR 23468 (May 22, 2019)). The TGL was
subsequently extended through August 13, 2020. As the TGL was set to expire, BIS published an
interim final rule with a request for comment, “Release of “Technology” to Certain Entities on
the Entity List in the Context of Standards Organizations” (see 85 FR 36719, June 18, 2020) (the
June 2020 rule), that amended the EAR to authorize the release of certain technology to Huawei
and its affiliates on the Entity List.
The June 2020 rule defined “standards” and “standards organizations” on the basis of the
Office of Management and Budget Circular A-119 (OMB A-119) definitions and authorized
limited releases of low-level “technology” and “software” to Huawei in the context of
“standards” in a “standards organization.” In public comments received in response to the June
2020 rule, U.S. industry raised concerns that the definitions and provisions promulgated in the
June 2020 rule were chilling U.S. industry’s participation in standards development.
Standards development in the United States, unlike in other countries, is driven by the
private sector (e.g., industry, academia, etc.), which is an important factor that has fueled
effective U.S. leadership in standards development. The U.S. Government takes a consultative
role in this process through the work of the Department of Commerce’s National Institute of
Standards and Technology (NIST). Although the countries from which standards proposals
originate are identified during standards development and setting activities, company affiliations
are generally not known and are not a requirement for membership or participation.
Certain export control-related factors in the standards-making process, including but not
limited to BIS’s increased use of end-use and end-user controls, led to an environment of
uncertainty for U.S. companies. They stopped sharing information and data in international
standards bodies and in legitimate standards development activities because of, e.g., the
participation of entities listed on the Entity List (other than Huawei) in standards bodies and
standards development activities. Standards bodies began to view the United States as a less than

ideal place to hold standards meetings and discussions, as U.S. export controls introduced an
element of non-openness which is contrary to the spirit and definition of standards organization
espoused by OMB A-119. As a result, U.S. leadership in international standards development
was at risk in key industries. The lack of U.S. participation in standards that form the foundation
of future industrial and commercial development worldwide directly and negatively impacts U.S.
national security, and limits U.S. global commercial influence. This encourages foreign actors to
develop and promote their own standards across the global community at the expense of the
United States. Additionally, U.S. non-participation in the development of standards affects U.S.
companies as they must manufacture items that meet foreign standards.
b) September 2022 IFR
In response to the public comments received on the June 2020 rule and following
renewed consultation among government agencies, BIS published the September 2022 rule
amending the EAR to authorize the release of specified items subject to the EAR without a
license to entities added to the Entity List pursuant to § 744.11 in the narrow circumstance when
that release occurs in the context of a “standards-related activity,” as defined in the September
2022 rule. Specifically, BIS clarified the scope and application of standards activities covered by
the authorization by removing the defined terms for “standards” and “standards organization”
from the EAR and adding a new definition for “standards-related activity” that more accurately
reflects the standards-setting landscape. BIS authorized the release of “software” controlled for
anti-terrorism (AT) reasons only and items designated EAR99 (i.e., items subject to the EAR but
not identified on the Commerce Control List (supplement no. 1 to part 774) (CCL)) in the scope
of the authorization and included the release of specific “software” and “technology” only for the
“development,” “production,” and “use” of cryptographic functionality in the authorization. The
rule also required that the items were authorized for release only if there was an intent to
“publish” the resulting standard. Additionally, the language regarding “standards-related
activity” was removed from the License Requirement column in the Entity List and added to

§§ 744.11 and 744.16 of the EAR. The September 2022 rule thus revised the scope of the
standards authorization to apply to entities on the Entity List with license requirement solely
referencing § 744.11 and not other end use and end user license requirements in other sections of
parts 744 (Control Policy: End-User and End-Use Based) and 746 (Embargoes and Other Special
Controls) of the EAR.
Prior to the June 2020 rule, the majority of entities on the Entity list had, and continue to
have, a license requirement that refers to § 744.11. Since the publication of the June 2020 rule,
however, BIS has published a number of rules that have expanded end-use and end-user controls.
As a result, since the publication of the June 2020 rule, over 400 additional entities have been
added to the Entity List with a license requirement that references a provision other than
§ 744.11. In recognition of these circumstances, in the September 2022 rule, BIS requested
comments on whether excluding these other end-use and end-user provisions of the EAR from
the authorization would negatively impact and prevent U.S. industry from actively participating
and leading in “standards-related activities,” or if export controls and compliance concerns
would continue to limit U.S. leadership and participation in standards-related activities, thereby
negatively impacting U.S. commercial and national security interests.

B. Changes to Licensing Requirements in the Context of Specific Standards Activities
Based on public comments received from the September 2022 rule (as summarized in
Section D), as well as continued discussions with other U.S. Government agencies and industry,
BIS is amending the EAR to ensure that export controls and associated compliance concerns do
not continue to impede or jeopardize U.S. participation and leadership in legitimate standardsrelated activities. The national security threat that results from ceding, and in some cases ceasing,
U.S. participation and leadership in standards development and promulgation far outweighs the
risks related to the limited release of the authorized low-level technology and software to parties
on the Entity List when released in the context of a “standards-related activity.” BIS has

concluded that excluding end-use and end-user controls from the authorization has had and will
continue to have unintended negative consequences on the U.S. national security interests by
curtailing U.S. involvement in legitimate standards-related activities.
As further detailed in the White House report on USG NSSCET discussing the key
objective of U.S. participation, the U.S. Government is taking action to “remove and prevent
barriers to private sector participation in standards development.” Standards activities and
development will continue to drive technological and industrial growth with or without input
from U.S. companies. For U.S. industry to keep its leadership role and continued participation in
standards development, especially in critical and emerging technologies identified in the USG
NSSCET, the U.S. Government must address this issue comprehensively. As public comments to
prior efforts to control exports related to standards development have shown, not addressing U.S.
industry’s uncertainty regarding the end-use and end-user controls in the EAR is
counterproductive and endangers U.S. commercial and strategic interests over the long term. To
address these concerns and to further streamline and clarify controls over technology and
software subject to the EAR as related to standards-related activities, BIS is making the
following revisions to the EAR:
1. Moving the authorization for “standards-related activity” that was added to § 744.11 in
the September 2022 rule to § 734.10. BIS is also making necessary conforming changes
to § 744.16 and the introductory paragraph to supplement no. 4 to Part 744. This final
rule does not change existing provisions in these sections regarding patents and whether
they are subject to the EAR.
2. Revising the existing definition of ‘standards-related activity’ and adding the revised
definition to § 734.10. This rule clarifies that a “standards-related activity” includes
activities conducted with the intent to “publish” a standard as well as those conducted for
an already “published” standard. BIS revises the definition of “standards-related activity”

to remove the phrase “with which compliance is not mandatory.” In addition, in Part 772,
BIS is revising the definition for “standards-related activity” to reference § 734.10.
When “technology” or “software” is released for a “standards-related activity,” the same
item scope promulgated in the September 2022 continues to apply, i.e., specific “technology” or
“software” is not subject to the EAR if the item is designated EAR99, controlled on the CCL for
anti-terrorism (AT) reasons only, or the release is of specified “software” and “technology” when
specifically for the “development,” “production,” and “use” of cryptographic functionality.

C. Request for Additional Public Comments for this Interim Final Rule
Instructions for submission of comments, including comments that contain business
confidential information, are found in the ADDRESSES section of this interim final rule. BIS is
requesting comment on whether the revisions promulgated in this interim final rule effectively
promote Objective 2 of the USG NSSCET by removing and preventing barriers to private sector
participation in standards development.

D. Summary and Response to Comments Received Regarding the September 2022
Standards Interim Final Rule
The summary and responses to the nine relevant comments that BIS received from the
September 2022 interim final rule have been separated into seven topic areas. For topics in which
the comments expressed the same or very similar viewpoints, BIS has addressed them by topic
area rather than by individual comment. For topic areas in which the commenters expressed
unique viewpoints, thoughts, or ideas, BIS has addressed the individual comments. The majority
of comments have been addressed by the revisions to the EAR promulgated in this rule. BIS
greatly appreciates the public comments received and encourages continued engagement and
feedback.

Topic Area 1: Limits on standards-related activities due to export controls creates economic and
national security risks for the United States
Five commenters noted that any chilling of U.S. participation and leadership in standards
development creates new security risks and vulnerabilities that threaten U.S. economic and
national security interests. For example, one commenter stated that when its organization is
restricted from engaging in information-sharing activities because those activities are not
covered under the definition of “standards-related activities,” its organization loses the
opportunity to receive valuable and potentially time-sensitive information about cyber incidents,
threats, and vulnerabilities as well as the ability to further discuss those issues among the
organization’s members and identify needed and appropriate resolutions.
Another commenter stated that “it is important that there be a two-way communication
regarding security vulnerabilities discovered in hardware and software items. If participation of
Entity List entities is restricted, then security vulnerabilities discovered by these entities, many of
which are quite large, may be withheld as they develop their own competing standards after
being locked out of access to participation.” The same commenter went on to state that “we
believe that the revised EAR exemption, as amended by the IFR, continues to work against the
stated intent of the IFR and against the national security interests of the United States by
prohibiting the dissemination of technology and software subject to the EAR in the context [of]
standards-related activity when these specified items are released by open membership
organizations” that develop their standards via an open process available to any member.
Response: BIS understands, as commenters have stated, that limits on the sharing of
information in a standards development environment have both economic and national security
implications. The national security threat that results from ceding U.S. participation and
leadership in standards development and promulgation far outweighs the risks related to the
limited release of low-level technology and software to parties on the Entity List in the context of
a “standards-related activity” that supports U.S. commercial and economic interests. Therefore,

in this rule, BIS is amending part 734 of the EAR so that activities that meet the definition of
“standards-related activity” are no longer subject to the EAR. Specifically, when released for a
“standards-related activity,” “technology” or “software” is not subject to the EAR if it meets the
item scope of 734.10(b)(1) and is released for a “published” standard and/or occurs with the
intent that the resulting standard will be “published.”
The USG NSSCET specifically highlights U.S. leadership in standards development of
critical technologies. The USG NSSCET Executive Summary explicitly states that: “strength in
standards development has been instrumental to the United States’ global technological
leadership. Standards development underpins economic prosperity across the country and
fortifies U.S. leadership in the industries of the future at the same time. Bolstering U.S.
engagement in standards for critical and emerging technology (CET) spaces will strengthen U.S.
economic and national security.”
Additionally, the Export Control Reform Act of 2018 (ECRA; 50 U.S.C. 4801-4852)
states under § 4811(3) that: “the national security of the United States requires that the United
States maintain its leadership in the science, technology, engineering, and manufacturing sectors,
including foundational technology that is essential to innovation. Such leadership requires that
United States persons are competitive in global markets.”
Both the USG NSSCET and ECRA support and endorse the revisions to the EAR to
ensure that export controls and licensing requirements do not prove detrimental to or limit the
ability of U.S. industry to participate in and lead international standards development across
industries, especially in areas critical to United States industrial, commercial, and national
security leadership.
Topic Area 2: U.S. export controls continue to hinder U.S. leadership and participation in
international standards development.
Six commenters expressed concern that the export controls and license requirements
related to the sharing of information in a standards-development forum, as implemented in the

September 2022 rule, were continuing to hinder and chill U.S. companies’ participation in
international standards development. Specifically, one commenter stated that “[o]pen
standardization is critical to U.S. leadership across established and emerging technology areas
and limiting [the] ability of SSO’s [standard setting organizations] would provide significant
barriers to U.S. participation and leadership in standardization.” Another commenter noted that
the current authorization is “[i]nsufficient to maintain U.S. leadership at organizations that work
on standards” and that it does not adequately “support global cooperation on other critical
activities conducted by standards organizations.” One commenter stated that unless BIS broadens
the scope of the authorization, they anticipate that the organization’s legal department will not
allow it to participate in any meetings at which Entity List parties could potentially be in
attendance.
Four commenters noted that the export controls and license requirements that apply only
to U.S. companies have the effect of walling off U.S. standards development from global
development and allowing foreign actors to develop and promote their own standards across the
global community at the expense of the United States. One of the commenters stated that
controls that lead SSOs to limit U.S. entities’ participation in global standards development will
“fragment the standardization ecosystem that has served U.S. interests well to date . . . .” Another
commenter stated that compliant use of the limited authorization “would impose a significant
compliance burden as international standards organizations would need to restructure groups to
isolate standards related activities from other activities and spend resources to monitor
communications among members.” As noted above, another commenter said, “if participation of
Entity List entities is restricted, then security vulnerabilities discovered by these entities, many of
which are quite large, may be withheld as they develop their own competing standards after
being locked out of access to participation.” Finally, a commenter noted that artificial limits on
sharing of information favors compliance by larger commercial enterprises at the expense of

smaller parties, including other standards organizations that do not have the same resources as
large commercial operations.
Response: BIS agrees that the September 2022 authorization is not broad enough to
allow U.S. companies to participate freely in standards development due to uncertainty regarding
whether the information they are sharing is subject to the EAR and, if so, whether EAR license
requirements apply. BIS recognizes the importance of protecting sensitive and leading-edge U.S.
technology but understands the national security implications of limiting U.S. participation and
leadership in international standards development. BIS appreciates that the U.S. Government
needs to apply U.S. export controls in a way that supports and encourages U.S. technological
leadership in standards development, particularly in light of efforts by adversarial countries to
coordinate, subsidize, and promote activities in international standards bodies for the benefit of
their own enterprises and industry leadership. BIS also recognizes that an environment of
competing national standards or the exclusion of U.S. companies in international standards
development is not advantageous to U.S. commercial or national security interests. Therefore, in
this final rule, BIS has made “standards-related activities” not subject to the EAR as long as the
“release” of the “software” or “technology” during these activities meets the criteria contained in
revised § 734.10 of the EAR. This treatment of “standards-related activity” as defined in
§ 734.10 will support U.S. companies’ efforts to create and maintain a leadership position in the
global standards community in all industries.
BIS further agrees that fragmentation in the standards development environment could
provide foreign actors and organizations with an opening to develop their own unique and
separate international standards, without U.S. industry input or participation, and at the expense
of U.S. commercial and national security interests. This fragmentation leads to significant
disadvantages for U.S. industry by providing foreign actors with the opportunity to specify their
own indigenous benchmarks that U.S. companies must adhere to or lose market share. U.S. nonparticipation in the foreign development of such standards also affects U.S. companies’ bottom

line as they must revise their manufacturing processes to meet the foreign standards. This final
rule alleviates such concerns by providing U.S. companies the ability to freely participate in all
standards-development forums by making the release of software or technology in such forums
not subject to the EAR, provided the releases meet the criteria of new § 734.10(b) of the EAR. It
also obviates the need for U.S. companies to wall off their input into global standards
development.
Topic Area 3: Revise the definition of “standards-related activity.”
BIS received comments requesting that the agency revise, expand, and clarify the
definition of “standards-related activity.”
Four commenters suggested that BIS should expand the definition of “standards-related
activity.” One commenter stated that the definition should include but not be limited to “the
sharing of technical assistance and exchange of information within conformity assessment
procedures, with the intent that the resulting standard will be “published” in order to clarify that
sharing and exchanging technical information is within the scope of the authorization. Another
commenter suggested that the definition is too narrow and should be expanded to “activities
outside of “standards-related activities”” so as to include “many vital functions of international
standards organizations that are necessary and incidental to standards related activity but may be
conducted outside the context of standards development, such as fostering the exchange of
information on developing industry trends and discussions of emerging issues among members.”
Another commenter suggested expanding the definition “to include information sharing activities
by members of standards organizations on emerging issues and developments.” The last
commenter on this topic proposed allowing a standards-related activity to occur if conducted in a
Voluntary Consensus Standards Body (VCSB), as defined by OMB Circular A-119. In the
September 2022 rule, BIS removed the “standards organization” definition and replaced it with a
“standards-related activity authorization.” According to the commenter, however, the VCSB
definition does not require that standards be “published.”

Five commenters requested that BIS remove the word mandatory from the definition of
“standards-related activity” in part 772 of the EAR. Essentially all of the commenters stated that
in the context of standards development, whether or not a standard will be voluntary or
mandatory makes no difference to the stakeholders involved in the development of the standard.
Additionally, some voluntary standards become mandatory when adopted through national
(domestic) regulations, such as international aircraft standards promulgated by the International
Civil Aviation Organization (ICAO).
Five commenters stated that the current wording of the authorization implied that
standards-related activities were covered by the authorization only before or during publication
of the standard. These commenters asked for clarification that such activities continued to be
covered by the authorization after publication of the standards. One commenter noted that
conformance testing is a vital component in the commercialization of standards compliant
products and that the “vast majority of such activities only usefully occur after a standard has
been published and compliant products have been produced.” Another commenter noted that
“BIS already provides examples of activities that occur in connection with already published
standards (promulgating, revising, amending, reissuing, interpreting, implementing...)” but that
such actions do not occur for a standard that does not yet exist. These commenters gave
examples of three SSOs engaged in cellular, wireless, and other devices that routinely engage in
standards-related activities for already published standards, such as conformity assessments. Two
commenters requested clarification on whether organizations that are not VCSBs that “require a
party to be a member of an organization to receive standards in their final form” would qualify
for the authorization.
One commenter suggested that BIS extend the current authorization to additional
standards activities that occur before the standard is published. According to this commenter, in
information and communications technology (ICT) “compliance testing also includes preproduct release activities intended to help products reliably interoperate with other products

implementing the same standards. The need for such activities arises from the fact that ICT
standards frequently do not provide sufficient detail to ensure complete interoperability without
additional tinkering.” This commenter suggests that the additional tinkering is often done via a
“plugfest” which is “an activity that allows competing vendors to meet and test their products
against each other, often anonymous to each other, to work out the final technical changes
necessary to allow consumers and business purchasers to achieve the type of ‘plug and play’ ease
of use they require. Because plugfests are usually conducted before products reach the
marketplace, and often before their existence or specifications have been publicly disclosed, they
are non-public and conducted on a confidential basis. Typically, the technical information
exchanged one on one between two vendors includes only that information that is necessary to
allow each vendor to work out the cause of a lack of compatibility.”
Response: BIS agrees with most of these comments. In new § 734.10(b), BIS revises and
clarifies the scope of what is authorized when released for a “standards-related activity.” When
released for a “standards-related activity,” “technology” or “software” is not subject to the EAR
once it meets at least one condition in both § 734.10(b)(1) and (2). The scope of the
“technology” or “software” covered by the authorization has not been revised and is now listed
in § 734.10(b)(1). The conditions in § 734.10(b)(2) clarify that activities that occur after the
publication of a standard are included in the definition of “standards-related activity” – i.e., a
“standards-related activity” occurring specific to an already “published” standard is included in
the authorization. BIS also removed the phrase “with which compliance is not mandatory” from
the definition of “standards-related activity.”
BIS is not expanding the definition of “standards-related activity” to include activities
that are conducted in a VCSB as the expansion is unwarranted. Based on public comment and
engagement with other agencies, BIS has determined that the relevant activities of a VCSB are
already captured in the definition of “standards-related activity” or, as in the example provided
by the commenter, not subject to the EAR (see discussion in Topic Area 4). BIS welcomes

public comments on whether there are additional VCSB activities that are excluded from the
current definition of “standards-related activity” and remain subject to the EAR.
Topic Area 4: Expand the definition of “published in § 734.7 of the EAR.”
Comment: Six commenters suggested that the definition of “published” be expanded to
cover standards development activities. One commenter suggested that the EAR’s definition of
“published” should be expanded to include the “sharing of technical assistance and exchange of
information within conformity assessment procedures.”
Response: The definition of “standards-development activity” in part 772 already
explicitly includes the exchange of technical data in the conformity process provided it is for the
purpose of standards-development activities. Therefore, no further revisions are warranted to the
definition of “published” to reference the exchange of technical data.
Comment: Another commenter suggested amending the text of § 734.7 of the EAR to
replace the phrase “without restrictions upon its further dissemination” with the phrase “in hard
copy or electronic form available from, or viewable at, one or more public websites.” The
commenter makes this suggestion because “virtually all standards bear copyright notices, and
many standards setting organizations (SSOs) add further legends highlighting that copying and
further distribution of their standards are prohibited. Some vigorously defend their copyrights in
court.” While it is true that many SSOs (and particularly consortia) give their standards away for
free, most traditional SSOs derive a significant percentage of their revenues from the sale of their
standards. Thus, in the view of this commenter, “requiring unlimited downstream distribution”
as provided in existing § 734.7 “would violate the copyrights of SSOs.”
Response: BIS believes that the regulatory amendments to § 734.10 of the EAR
promulgated in this rule obviate the need to amend § 734.7 of the EAR to account for standards
that may be copyrighted. In this final rule, BIS has removed “standards-related activities” from
being subject to the EAR, as long as the release of the “software” or “technology” meets the
definition of a “standards-related activity” as defined in part 772 of the EAR, and meets the

requirements for “release” in new § 734.10(b)(1) and the conditions of its “release” in new
§ 734.10(b)(2) of the EAR.
According to the criteria in new § 734.10(b)(2), the “standards-related activity” must be
either for a “published” standard or occurs with the intent that the resulting standard will be
“published.”
Comment: Another commenter asked for confirmation that “the references to ‘published’
standards in the definition are not limited to standards-related activities only by those involved in
the standard’s development.” The commenter also asked for confirmation that a third-party entity
that is not a member of the organization that published the standard (for example, a consortium
or a certification authority) but engages in “standards-related activity” with that standard is
consistent with the definition of “published” as used in the definition of “standards-related
activity.”
Response: BIS confirms that this scenario is consistent with the definition of “standardsrelated activity” in § 734.10 and the definition of “published” in § 734.7 of the EAR. The
changes in this rule remove standards-related activities from being subject to the EAR when the
stated conditions are met; as long as the conditions in new § 734.10(b)(1) and (2) are met, then
the activities would not be subject to the EAR.
Comments: One commenter stated that their organization’s “model of open membership
dissemination does not publish in conformity with the strict publish definition used in the IFR”
because although it makes standards readily available to the public, the interested member of the
public must also be “willing to agree to the terms and conditions in its membership agreement
and pay its dues.” The organization releases the resulting standards to all members without
restriction. According to that commenter, “this model does not conform to the strict definition of
‘published’, so [the organization’s] standards-related activities do not qualify for the exemption
under the terms of the IFR.”

Another commenter suggested that the definition of “published” be amended “to include
dissemination to membership organization . . . that are open to the public without restriction,
apart from confidentiality responsibilities, standard terms and conditions, a demonstrated interest
in the design, development, manufacture or sale of products or services which utilize the
standards at issue, and dues or membership fees.” An additional commenter requested
clarification regarding the definition of “published” to make “clear whether BIS recognizes that
some standards organizations require a party to be a member of the organization to receive
standards in their final form.”
Response: The relevant criteria in § 734.7 of the EAR that makes information not subject
to the EAR is applicable when the information has been made available to the public without
restrictions upon its further dissemination. This does not rely on cost or membership, provided
that any member of the interested public could pay the associated membership dues and become
a member if they so desired. Further, § 734.7(a)(1) states that unclassified “technology” or
“software” is “published” and therefore not subject to the EAR, when it has been made available
to the public without restrictions upon its further dissemination such as through “subscriptions
available without restriction to any individual who desires to obtain or purchase the published
information.”
Topic Area 5: Apply standards authorization to sections of EAR other than § 744.11
Three commenters expressed concern that the September 2022 authorization continued to
chill U.S. industry participation in international standards development because it applied only to
releases of “software” and “technology” to entities that were added to the Entity List under
§ 744.11 of the EAR. These commenters noted that to allow the United States to freely
participate in standards development forums, the authorization must be extended to all end users
listed in part 744 of the EAR. One commenter stated the “Entity (L)ist is not all encompassing of
potentially restricted parties, particularly within context of EAR Part 744. Parties having other
[part 744] designations (such as military end-users (MEU) in § 744.21) may be present in such

meetings or could otherwise receive the output documentation of such meetings.” Another
commenter noted that the authorization “does not address territorial and end-use/end-user
controls beyond the Entity List,” which have affected standards organizations and that deter U.S.
companies from participating and requiring standards organization to restrict their participation.
All three commenters requested the expansion of the authorization to the release of the same
types of items enumerated in § 744.11(a)(1) to other part 744 end users.
Another commenter stated that modifications such as expansion or flexibility should be
applied to the end-use and end-user controls to enable U.S. industry to remain a thought-leader
on standards-related activities. According to this commenter, the current authorization “requires
the U.S. party to continually monitor membership of a standards organization to determine
whether only parties on the Entity List are present or whether other restricted parties are potential
recipients.” This requires U.S. parties to “over screen” and continuously perform and refresh
their due diligence to ensure that a non-designated party has not been added to one of the
restricted lists.
Two additional commenters expressed the same concern with regard to the amount of
resources required to continuously monitor the end-use and end-user controls in part 744 of the
EAR. These commenters suggested that the standards authorization be extended to other sections
in part 744 but that this extension could be limited to countries listed in Country Group E
(supplement no. 1 to part 740) of the EAR.
Another commenter noted that the current sanctions and resulting license requirements
for Russia and Belarus extend to certain EAR99 and AT-only controlled items; therefore, these
restrictions have an even larger effect on U.S. participation in standards development than Entity
List designations. This commenter stated that as long as the standards-related authorization “does
not apply to MEU or parties in Russia or Belarus, the international standards environment is
likely to continue to fragment, which undermines U.S. leadership in these areas.” This
commenter also recommended expanding the authorization to parties outside of Country Group

E that are not on the Entity List “so that standards organizations (and U.S. membership) can fully
benefit from the intent of the [authorization].”
Three commenters requested that the current standards authorization be expanded to all
entities on the Entity List (supplement no. 4 to part 744). One commenter noted that such an
expansion would be “critical to US leadership across established and emerging technology areas”
and that limiting the authorization to only Entity List entities provides “significant barriers to
U.S. participation and leadership in standardization, fragment[s] the standardization ecosystem
that has served U.S. interests well to date and create[s] new security risks and vulnerabilities that
threaten U.S. economic and national security interests.” Another commenter noted that unless
BIS broadens the scope of the authorization, they anticipate that the organization’s legal
department will not allow it to participate in meetings that may include Entity List entities.
Response: The September 2022 rule expanded the scope of the authorization of releases
of “software” and “technology” to all entities that were added to the Entity List under § 744.11
of the EAR.
This rule addresses the commenter’s other concerns by removing from EAR jurisdiction
“technology” and “software” listed in new § 734.10(b)(1) when they meet at least one condition
in new § 734.10(b)(2). This means that the “technology” and “software” will not be subject to
the EAR when released for standards-related activities as that term is defined in part 772 of the
EAR to all end users listed in part 744 of the EAR.
BIS notes that this change affects major industries in which global participation is crucial
to create, maintain, and monitor international safety and operability standards. For example, as
two commenters pointed out, the Russian Federal Air Transportation Agency (FATA) and the
U.S. Federal Aviation Administration (FAA) both participate in the ICAO, an agency of the
United Nations that coordinates the principles and techniques of international air navigation and
sets worldwide standards for civil aviation safety. ICAO has members that are subject to
unilateral U.S. export controls under part 744 of the EAR beyond the Entity List; however, U.S.

participation in the forum is crucial in furtherance of U.S. support of civil air safety, security,
efficiency, capacity, and environmental protection and so that the commercial interests of U.S.
aircraft manufacturers and aviation equipment manufacturers are sufficiently presented in the
discussions. Lack of U.S. participation would cede the development of international standards to
foreign actors that may not only disregard U.S. commercial and national security interests but
actively work to destabilize them.
This rule addresses these concerns by removing from EAR jurisdiction “technology” and
“software” listed in new § 734.10(b)(1) when they meet at least one condition in new
§ 734.10(b)(2). This means that the specified “technology” and “software” will not be subject to
the EAR when released for standards-related activities as that term is discussed in 734.
Topic Area 6: Current authorization and license requirements increase the compliance burden
for U.S. companies.
Four commenters stated that the current authorization increases the export control
compliance burden of U.S. companies and standards organizations and their members. Two
commenters stated this sentiment explicitly, with one commenter adding that “compliant use of
the exemption IFR would impose a significant compliance burden as international standards
organizations would need to restructure groups to isolate standards related activities from other
activities and spend resources to monitor communications among members.” A third commenter
stated that “analyzing and complying with uneven or inconsistent rules and exemptions requires
additional resources that [their organization] could allocate to projects, training, or developing
standards.” The requester asked that BIS keep in mind that it (and other standards organizations)
do not have the same resources as large commercial operations.” However, another commenter
stated that the changes promulgated in the September 2022 rule reduced the compliance burden
on their organization.
Response: One organization’s compliance burden has been reduced under the existing
regulations, and with the publication of this rule and the changed focus on the activities

themselves, BIS fully expects that the compliance burden for the other organizations will also be
reduced. This is because this rule removes from EAR jurisdiction “technology” and “software”
listed in new § 734.10(b)(1) when they meet at least one condition in new § 734.10(b)(2).
Accordingly, the listed “technology” and “software” will not be subject to the EAR when
released for “standards-related activities” as that term is discussed in part 734 of the EAR.
Topic Area 7: Use clear language and clarification.
One commenter suggested that BIS use clear language and clarification in future
regulations. Specifically, this commenter stated that “any efforts to simplify, clarify or limit [the
technology] restrictions would be gratefully received by SSO’s, their decision makers, and their
members.”
Response: BIS will continue to strive to use clear language and to use guidance,
including a frequently asked questions (FAQ) document, to further clarify published regulations
in accordance with the Plain Writing Act of 2010.

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.

Rulemaking Requirements
1. Executive Orders 13563 and 12866 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, distributive impacts, and equity). E.O. 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting

flexibility. This interim final rule has been designated as significant for purposes of Executive
Order 12866.
2.

Notwithstanding any other provision of law, no person is required to respond to or 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. This interim final rule involves the collection currently approved by
OMB under control number 0694-0088, Simplified Network Application Processing System ,
which includes, among other things, license applications. Total burden hours associated with the
PRA and OMB control number 0694–0088 are not expected to change because this rule does not
impose any additional license requirements. Current information regarding this collection of
information – including all background materials -- can be found at
https:/www.reginfo.gov/public/do/PRAMain by 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, this action is exempt from the Administrative Procedure
Act (5 U.S.C. 553) requirements, including prior notice and the opportunity for public comment.
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 Part 734

Administrative practice and procedure, Exports, Inventions and patents, Research, Science and
technology
15 CFR Part 744
Exports, Reporting and recordkeeping requirements, Terrorism
15 CFR Part 772
Exports.
Accordingly, parts 734, 744 and 772 of the Export Administration Regulations (15 CFR parts
730 through 774) are amended as follows:

PART 734—SCOPE OF THE EXPORT ADMINISTRATION REGULATIONS
1. The authority citation for 15 CFR part 734 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. 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 1, 2023, 88 FR 75475 (November 3, 2023).
2. Amend § 734.3 by revising paragraph (b)(3)(iv) to read as follows:
§ 734.3 Items subject to the EAR.
*****
(b) ***
(3) ***
(iv) Appear in patents or open (published) patent applications available from or at any
patent office, unless covered by an invention secrecy order, or are otherwise patent information
or are for a standards-related activity as described in § 734.10;
*****
3. Section 734.10 is revised to read as follows:

§ 734.10 Patents and standards-related activity.
(a) Patents. “Technology” is not subject to the EAR if it is contained in any of the
following:
(1) A patent or an open (published) patent application available from or at any patent
office;
(2) A published patent or patent application prepared wholly from foreign-origin
“technology” where the application is being sent to the foreign inventor to be executed and
returned to the United States for subsequent filing in the U.S. Patent and Trademark Office;
(3) A patent application, or an amendment, modification, supplement or division of an
application, and authorized for filing in a foreign country in accordance with the regulations of
the Patent and Trademark Office, 37 CFR part 5; or
(4) A patent application when sent to a foreign country before or within six months after
the filing of a United States patent application for the purpose of obtaining the signature of an
inventor who was in the United States when the invention was made or who is a co-inventor with
a person residing in the United States.
(b) Standards-related activity. A standards-related activity includes the development,
adoption, or application of a standard (i.e., any document or other writing that provides, for
common and repeated use, rules, guidelines, technical or other characteristics for products or
related processes and production methods), including but not limited to conformity assessment
procedures. A “standards-related activity” includes an action taken for the purpose of
developing, promulgating, revising, amending, issuing or reissuing, interpreting, implementing
or otherwise maintaining or applying such a standard. When released for a “standards-related
activity,” “technology” or “software” is not subject to the EAR provided it meets at least one
condition in both paragraphs (b)(1) and (2) of this section:
(1) The “technology” or “software” is:
(i) Designated EAR99;

(ii) Controlled on the CCL for anti-terrorism reasons only; or
(iii) For the following ECCN “items” level paragraphs of “technology” or “software”
specifically for the “development,” “production,” or “use” of cryptographic functionality once
the release is for a “standards-related activity:” “software” that is classified under ECCN
5D002.b or 5D002.c.1 (for equipment specified in ECCN 5A002.a and 5A002.c only);
“technology” that is classified under ECCN 5E002 (for equipment specified in ECCN 5A002.a,
.b and .c); and “technology” for software controlled under ECCN 5D002.b or .c.1 (for equipment
specified in ECCN 5A002.a and .c only) when the release is for a “standards-related activity;”
and
(2) The “standards-related activity:”
(i) Is for a “published” standard; or
(ii) Occurs with the intent that the resulting standard will be “published.”
PART 744—CONTROL POLICY: END-USER AND END-USE BASED
4. The authority citation for 15 CFR 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. 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. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; 3
CFR, 2022 Comp., p. 563; Notice of September 7, 2023, 88 FR 62439 (September 11, 2023);
Notice of November 1, 2023, 88 FR 75475 (November 3, 2023).
5. Section 744.11 is amended by revising paragraph (a) introductory text and removing
and reserving paragraph (a)(1) to read as follows:
§ 744.11 License requirements that apply to entities acting contrary to the national security
or foreign policy interests of the United States.

*****
(a) License requirement, availability of license exceptions, and license application
review policy. A license is required, to the extent specified on the Entity List, to export, reexport,
or transfer (in-country) any item subject to the EAR when an entity that is listed on the Entity
List is a party to the transaction as described in § 748.5(c) through(f) of the EAR unless
otherwise authorized or excluded in this section. License exceptions may not be used unless
authorized in the Entity List entry for the entity that is party to the transaction. Applications for
licenses required by this section will be evaluated as stated in the Entity List entry for the entity
that is party to the transaction, in addition to any other applicable review policy stated elsewhere
in the EAR.
*****
6. Section 744.16 is amended by revising paragraph (a) to read as follows:
§ 744.16 ENTITY LIST
*****
(a) License requirements. In addition to the license requirements for items specified on
the CCL, you may not, without a license from BIS, export, reexport, or transfer (in-country) any
items included in the License Requirement column of an entity’s entry on the Entity List
(supplement no. 4 to this part) when that entity is a party to a transaction as described in
§ 748.5(c) through (f) of the EAR. The specific license requirement for each listed entity is
identified in the license requirement column on the Entity List in supplement no. 4 to this part.
*****
7. Supplement no. 4 to part 744 is amended by revising the introductory text to read as
follows:
Supplement No. 4 to Part 744 - Entity List
This supplement lists certain entities subject to license requirements for specified items
under this part 744 and part 746 of the EAR. License requirements for these entities include

exports, reexports, and transfers (in-country) unless otherwise stated. A license is required, to
the extent specified on the Entity List, to export, reexport, or transfer (in-country) any item
subject to the EAR when an entity that is listed on the Entity List is a party to the transaction as
described in § 748.5(c) through (f). of the EAR This list of entities is revised and updated on a
periodic basis in this Supplement by adding new or amended notifications and deleting
notifications no longer in effect.
*****
PART 772—DEFINITIONS OF TERMS
8. The authority citation for 15 CFR part 772 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.
13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783.
9. Section 772.1 is amended by
a. Revising the definition of “Standards-related activity.”
The revisions read as follows:
§772.1 Definitions of Terms As Used In the Export Administration Regulations (EAR).
*****
Standards-related activity. See § 734.10 of the EAR.
*****

Thea D. Rozman Kendler
Assistant Secretary for Export Administration.

[FR Doc. 2024-15810 Filed: 7/17/2024 8:45 am; Publication Date: 7/18/2024]