[Federal Register Volume 67, Number 46 (Friday, March 8, 2002)]
[Rules and Regulations]
[Pages 10611-10617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5563]
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DEPARTMENT OF COMMERCE
Bureau of Export Administration
15 CFR parts 734, 738, 740, 742, 743, 748, and 774
[Docket No. 020228044-2044-01]
RIN 0694-AC42
Implementation of the Wassenaar Arrangement List of Dual-Use
Items Revisions: Computers; and Revisions to License Exception CTP
AGENCY: Bureau of Export Administration, Commerce.
ACTION: Final rule.
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SUMMARY: The Bureau of Export Administration (BXA) maintains the
Commerce Control List (CCL), which identifies those items subject to
Department of Commerce export licensing requirements based on their
characteristics. Certain entries on the CCL implement multilateral
national security controls established by the Wassenaar Arrangement on
Export controls for Conventional Arms and Dual-Use Goods (the Wassenaar
Arrangement), of which the United States is a founding member. The
Wassenaar Arrangement controls strategic items with the objective of
improving regional and international security and stability.
In this regard, on December 1, 2000, the Wassenaar Arrangement
agreed to implement several changes in its List of Dual-Use Goods and
Technologies. This final rule revises the CCL to implement certain
agreed changes in Category 4 (Computers) of the Wassenaar List of Dual-
Use Goods and Technologies, specifically in the area of computers.
These changes are being implemented to reflect rapid technological
advances and effective control factors. Additional changes in other
categories of the Wassenaar Dual-Use List will be implemented in the
CCL in a supplemental regulation.
In addition, this rule makes conforming and clarification revisions
to License Exception CTP.
DATES: This rule is effective March 5, 2002.
FOR FURTHER INFORMATION CONTACT: Tanya Hodge Mottley in the Office of
Strategic Trade and Foreign Policy Controls, Bureau of Export
Administration, at (202) 482-1837.
SUPPLEMENTARY INFORMATION:
Background
In July 1996, the United States and thirty-two other countries gave
final approval to the establishment of a new multilateral export
control regime, called the Wassenaar Arrangement on Export Controls for
Conventional Arms and Dual-Use Goods and Technologies (Wassenaar
Arrangement). The Wassenaar Arrangement contributes to regional and
international security and stability by promoting transparency and
greater responsibility in transfers of conventional arms and dual-use
goods and technologies, thus preventing destabilizing accumulations of
such items. Participating states have committed to exchange information
on exports of dual-use goods and technologies to non-participating
states for the purposes of enhancing transparency and assisting in the
development of a common understanding of the risks associated with the
transfers of these items.
Implementation of Wassenaar Arrangement Agreement
This final rule revises certain national security control
parameters for computers to implement recently agreed changes in
Category 4 (Computers) of the Wassenaar List of Dual-Use Goods and
Technologies. These changes are being implemented to reflect rapid
technological advances and controllability factors.
A detailed description of the amendments to the Commerce Control
List that are included in this rule is provided below.
Category 4--Computers:
4A001--Amended by:
(1) Revising the License Requirement section to increase the XP
control levels from 6,500 MTOPS to 28,000 MTOPS, consistent with the
multilaterally agreed national security level; and
(2) Correcting some typographical errors in the Related Control
section.
4A002--Amended by revising the License Requirement section to
increase
[[Page 10612]]
the XP control levels from 6,500 MTOPS to 28,000 MTOPS, consistent with
the multilaterally agreed national security level.
4A003--Amended by:
(1) Revising the License Requirement section to increase the XP
control levels from 6,500 MTOPS to 28,000 MTOPS, consistent with the
multilaterally agreed national security level;
(2) Removing License Exception LVS eligibility for paragraphs (b)
and (c), as the need for LVS MTOPS limit has been surpassed by the new,
higher control threshold and BXA has determined that an eligibility
level above the new threshold is not warranted; and
(3) Revising paragraph (b) in the List of Items Controlled to
increase the national security (NS) control level for computers from
6,500 MTOPS to 28,000 MTOPS.
4D001--Amended by revising the License Requirement section to
increase the XP control levels from 6,500 MTOPS to 28,000 MTOPS,
consistent with the multilaterally agreed national security level.
4D002--Amended by:
(1) Revising the License Requirement section to increase the XP
control levels from 6,500 MTOPS to 28,000 MTOPS, consistent with the
multilaterally agreed national security level; and
(2) Correcting a citation reference in the XP reason for control
paragraph.
4E001--Amended by revising the License Requirement section to
increase the XP control levels from 6,500 MTOPS to 28,000 MTOPS,
consistent with the multilaterally agreed national security level.
This rule also revises other provisions of the EAR to ensure that
all regulations reflect the changes made by Wassenaar Arrangement
Agreement. This rule raises the CTP level for which Wassenaar reporting
is required for computers exported to non-Wassenaar members under
License Exception from 6,500 MTOPS to 75,000 MTOPS. Wassenaar reporting
requirements are found in part 743 of the EAR. Reports for exports to
Computer Tier 3 destinations of computers having a CTP level of greater
than 85,000 MTOPS, should be reported under the post shipment
verification reporting provisions of Sec. 742.12 and need not be
reported under the Wassenaar reporting provisions in section Sec. 743.1
of the EAR.
This rule also raises the CTP limit from 33,000 MTOPS to 85,000
MTOPS of computers and electronic assemblies that are eligible for
export or reexport under License Exception GOV to the International
Atomic Energy Agency (IAEA) and the European Atomic Energy Community
(Eurotom), and reexports by these organizations for official
international safeguard use, as described in Sec. 740.11(a) of the EAR.
Finally, this rule raises the CTP limit from 33,000 MTOPS to 85,000
MTOPS of computers and electronic assemblies that are eligible for
export or reexport under License Exception GOV for international
inspections under the Chemical Weapons Convention, while adding a
prohibition for access either physically or computationally by
nationals of Cuba, Iran, Iraq, Libya, North Korea, Sudan, or Syria.
This rule also clarifies that the XP (high performance computer)
reason for control in ECCNs 4A001, 4A002, 4A003, 4D001, 4D002, and
4E001, does not apply to Canada. In 1996, BXA published a regulation
that restructured the entire Export Administration Regulations (61 FR
12714, March 25, 1996). Prior to the restructuring, Sec. 785.6 of the
EAR stated that, ``the general policy is to permit shipments of
commodities and technical data to Canada for consumption or use in that
country without an export license.'' Because XP is not a reason for
control that is represented on the Commerce Country Chart created by
the restructuring, and because the general policy statement for Canada
was removed from the EAR during the restructuring, the EAR did not
clearly state that a license is not required for items controlled under
XP when destined to Canada. Therefore, this rule corrects this
unintentional omission, by incorporating language into the CCL stating
that XP does not apply to Canada.
This rule also corrects the license requirement for XP reasons, set
forth in Sec. 742.12(a)(1), to state that the XP license requirement
does not apply when an item is eligible for export or reexport under
any License Exception. This rule also clarifies, in Sec. 742.12(a)(1),
that post-shipment verification reporting or Wassenaar reporting
requirements may apply to certain exports or reexports of XP controlled
items under License Exceptions.
Revisions to License Exception CTP
In addition, this rule clarifies License Exception CTP and removes
some provisions that have been unintentionally retained in the EAR when
BXA published the rule that implemented President Clinton's January 10,
2001 announcement on computer revisions, on January 19, 2001 (66 FR
5443).
This rule makes the following specific amendments to License
Exception CTP (Sec. 740.7 of the EAR):
(1) Clarifies the scope of the License Exception, by adding
language explaining that the scope not only covers computers and
specially designed components therefor, but also includes electronic
assemblies;
(2) Moves the restrictions found in paragraph (a) ``scope'' to a
new paragraph (b) ``restrictions'';
(3) Removes the reference to the national security control level
for high performance computers (greater than 6,500 MTOPS) eligible
under this License Exception for export or reexport to countries in
Computer Tiers 1 or 3. This revision was added to this rule to clarify
that computers having a CTP less than 28,000 MTOPS, that are controlled
for parameters other than CTP, are eligible under this License
Exception; and
(4) Removing paragraphs (d)(4) and (d)(5), because NDAA
notification requirements and post-shipment verification reporting
requirements are no longer required for computers that are eligible for
License Exception CTP. The regulation that was published on January 19,
2001 (66 FR 5443) established that NDAA notification and post-shipment
requirements under License Exception CTP would end on March 20, 2001.
However, provisions in Sec. 742.12(b)(3)(iv) of the EAR continue to
require post-shipment verification reporting for licensed exports and
reexports of computers above 85,000 MTOPS, and for licensed exports of
items used to enhance previously exported or reexported computers,
where the CTP is greater than 85,000 MTOPS. In addition, this rule
makes the following clarifications and corrections in other provisions
of the EAR to ensure that all regulations reflect the changes made by
the President's January 10, 2001 announcement.
(1) As the January 19, 2001 rule moved Hong Kong and South Korea to
Computer Tier 1 with eligibility under License Exception CTP for
computers with unlimited CTP, this rule removes footnote number 2 from
the Commerce Country Chart (Supplement No. 1 to part 738), which
imposed a license requirement for computers with a CTP greater than
45,000 MTOPS to Hong Kong and South Korea. The ``X'' in NS Column 2 for
Hong Kong and South Korea only represented a license requirement for
items under 4A001, 4A002, and 4A003 if the CTP was greater than 45,000
MTOPS, and did not apply for any other items subject to NS Column 2;
therefor, the license requirement symbol ``X'' from NS Column 2 has
been removed for these countries.
[[Page 10613]]
(2) This rule revises Sec. 740.16(b)(1) to remove from License
Exception APR the restriction on reexports of computers with a CTP
greater than 45,000 MTOPS to Hong Kong and South Korea.
(3) This rule also raises the CTP limit from 28,000 MTOPS to 85,000
MTOPS for computers containing U.S.-origin controlled semiconductors
(other than memory circuits) classified under ECCN 3A001 that are
eligible for becoming ``not subject to the EAR'' under the de minimis
procedures of Sec. 734.4 of the EAR when destined to Computer Tier 3,
while keeping the limit at 28,000 MTOPS for computers containing U.S.-
origin controlled semiconductors (other than memory circuits)
classified under ECCN 3A001 or high speed interconnect devices (ECCN
4A994.j) when destined to Computer Tier 4 countries.
Although the Export Administration Act expired on August 20, 2001,
Executive Order 13222 of August 17, 2001 (66 FR 44025, August 22, 2001)
continues the Regulations in effect under the International Emergency
Economic Powers Act.
Rulemaking Requirements
1. This final rule has been determined to be not significant for
purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is
required to respond to nor be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act unless that collection of information
displays a current valid OMB Control Number. This regulation involves
collections previously approved by the Office of Management and Budget
under control numbers 0694-0088, ``Multi-Purpose Application,'' which
carries a burden hour estimate of 45 minutes per manual submission and
40 minutes per electronic submission. Miscellaneous and recordkeeping
activities account for 12 minutes per submission. Information is also
collected under OMB control number 0694-0107, ``National Defense
Authorization Act,'' Advance Notifications and Post-Shipment
Verification Reports, which carries a burden hour estimate of 15
minutes per report. This rule also involves collections of information
under OMB control number 0694-0073, ``Export Controls of High
Performance Computers'' and OMB control number 0694-0093, ``Import
Certificates and End-User Certificates''.
3. This rule does not contain policies with Federalism implications
as that term is defined in Executive Order 13132.
4. The provisions of the Administrative Procedure Act requiring
notice of proposed rule making, the opportunity for public
participation, and a delay in effective date, are inapplicable because
this regulation involves a military or foreign affairs function of the
United States (see 5 U.S.C. 553(a)(1)). Further, no other law requires
that a notice of proposed rule making and an opportunity for public
comment be given for this rule. Because a notice of proposed rule
making and opportunities 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 inapplicable.
Therefore, this regulation is issued in final form. Although there
is no formal comment period, public comments on this regulation are
welcome on a continuing basis. Comments should be submitted to Office
of Exporter Services, Bureau of Export Administration, Department of
Commerce, P.O. Box 273, Washington, DC 20044.
List of Subjects
15 CFR Part 734
Administrative practice and procedure, Exports, Foreign trade.
15 CFR Parts 740, 743, and 748
Administrative practice and procedure, Exports, Foreign trade,
Reporting and record keeping requirements.
15 CFR Parts 738 and 742
Exports, Foreign trade.
15 CFR Part 774
Exports, Foreign trade, Reporting and recordkeeping requirements.
Accordingly, parts 734, 738, 740, 742, 743, 748, and 774 of the
Export Administration Regulations (15 CFR Parts 730-799) are amended as
follows:
1. The authority citation for 15 CFR Part 734 is revised to read as
follows:
Authority: 50 U.S.C. app. 2401 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, August 22, 2001; Notice
of November 9, 2001, 66 FR 56965, November 13, 2001.
2. The authority citation for 15 CFR part 738 is revised to read
and the authority citation for 15 CFR part 774 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); 18 U.S.C. 2510 et seq.; 22 U.S.C.
287c; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s),
185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C.
app. 466c; 50 U.S.C. app. 5; Sec. 901-911, Publ. L. 106-387; Sec.
221, Publ. L. 107-56; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p.
228; E.O. 13222, 66 FR 44025, August 22, 2001.
3. The authority citation for 15 CFR part 740 is revised to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
Sec. 901-911, Publ. L. 106-387; E.O. 13026, 61 FR 58767, 3 CFR, 1996
Comp., p. 228; E.O. 13222, 66 FR 44025, August 22, 2001.
4. The authority citation for 15 CFR part 748 is revised to read as
follows:
Authority: 50 U.S.C. app. 2401 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, August 22, 2001.
5. The authority citation for 15 CFR Part 742 is revised to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
18 U.S.C. 2510 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a;
Sec. 901-911, Publ. L. 106-387; Sec. 221, Publ. L. 107-56; 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, August 22, 2001; Notice of November 9,
2001, 66 FR 56965, November 13, 2001.
6. The authority citation for 15 CFR part 743 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq; Pub.L. 106-508; 50 U.S.C.
1701 et seq; E.O. 13206, 66 FR 18397, April 9, 2001.
PART 734--[AMENDED]
7. Part 734 is amended by revising Sec. 734.4(a), to read as
follows:
Sec. 734.4 De Minimis U.S. Content.
(a) There is no de minimis level for the export from a foreign
country of a foreign-made computer exceeding 85,000 MTOPS containing
U.S.-origin controlled semiconductors (other than memory circuits)
classified under ECCN 3A001 to Computer Tier 3; or exceeding 28,000
MTOPS containing U.S.-origin controlled semiconductors (other than
memory circuits) classified under ECCN 3A001 or high speed interconnect
devices (ECCN 4A994.j) to Computer Tier 4 countries described in
Sec. 742.12 of the EAR.
* * * * *
PART 738--[AMENDED]
8. Supplement No. 1 to part 738 is amended by:
(a) Removing the license symbol ``X'' and the reference to footnote
2 in NS
[[Page 10614]]
Column 2 for Hong Kong and South Korea; and
(b) Removing footnote 2.
PART 740--[AMENDED]
9. Part 740 is amended by:
(a) Revising Secs. 740.7, 740.11(c)(2)(i) and 740.16(b); and
(b) Revising the number ``45,000'' to read ``85,000'' in
740.11(a)(2)(ii), 740.11(a)(2)(iii), Supplement No. 1 to Sec. 740.11
paragraphs (a)(1)(ii), (a)(1)(iii), (b)(1)(ii), and (b)(1)(iii), to
read as follows:
Sec. 740.7 COMPUTERS (CTP).
(a) Scope. License Exception CTP authorizes exports and reexports
of computers, including ``electronic assemblies'' and specially
designed components therefor controlled by ECCN 4A003, exported or
reexported separately or as part of a system for consumption in
Computer Tier countries as provided by this section. When evaluating
your computer to determine License Exception CTP eligibility, use the
CTP parameter to the exclusion of other technical parameters for
computers classified under ECCN 4A003.a or .b, and ``electronic
assemblies'' under ECCN 4A003.c, except for parameters specified as
Missile Technology (MT) concerns or 4A003.e (equipment performing
analog-to-digital conversions exceeding the limits in ECCN
3A001.a.5.a).
(b) Restrictions. (1) Related equipment controlled under 4A003.d
and .g may not be exported or reexported under this License Exception
when exported or reexported separately from eligible computers
authorized under this License Exception.
(2) Computers eligible for License Exception CTP may not be
accessed either physically or computationally by nationals of Cuba,
Iran, Iraq, Libya, North Korea, Sudan, or Syria, except that commercial
consignees described in Supplement No. 3 to part 742 of the EAR are
prohibited only from giving such nationals user-accessible
programmability.
(3) Computers eligible for License Exception CTP may not be
reexported or retransferred without prior authorization from BXA, i.e.,
a license, a permissive reexport, another License Exception, or ``No
License Required''. This restriction must be conveyed to the consignee,
via the Destination Control Statement, see Sec. 758.6 of the EAR.
Additionally, the end-use and end-user restrictions in paragraph (d)(3)
of this section must be conveyed to any consignee in Computer Tier 3.
(4) You may not use this License Exception to export or reexport
items that you know will be used to enhance the CTP beyond the
eligibility limit allowed to your country of destination.
(c) Computer Tier 1--(1) Eligible countries. The countries that are
eligible to receive exports under this License Exception include
Antigua and Barbuda, Argentina, Australia, Austria, Bahamas, Barbados,
Bangladesh, Belgium, Belize, Benin, Bhutan, Bolivia, Botswana, Brazil,
Brunei, Burkina Faso, Burma, Burundi, Cameroon, Cape Verde, Central
African Republic, Chad, Czech Republic, Chile, Colombia, Congo, Costa
Rica, Cote d'Ivoire, Cyprus, Denmark, Dominica, Dominican Republic,
Ecuador, El Salvador, Equatorial Guinea, Eritrea, Estonia, Ethiopia,
Fiji, Gabon, Finland, France, Gambia (The), Germany, Ghana, Greece,
Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras,
Hong Kong, Hungary, Iceland, Indonesia, Ireland, Italy, Jamaica, Japan,
Kenya, Kiribati, Korea (Republic of), Lesotho, Liberia, Liechtenstein,
Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Maldives, Mali,
Malta, Marshall Islands, Mauritius, Mexico, Micronesia (Federated
States of), Monaco, Mozambique, Namibia, Nauru, Nepal, Netherlands, New
Zealand, Nicaragua, Niger, Nigeria, Norway, Palau, Panama, Papua New
Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Rwanda,
St. Kitts & Nevis, St. Lucia, St. Vincent and Grenadines, Sao Tome &
Principe, San Marino, Senegal, Seychelles, Sierra Leone, Singapore,
Slovakia, Slovenia, Solomon Islands, Somalia, South Africa, Spain, Sri
Lanka, Surinam, Swaziland, Sweden, Switzerland, Taiwan, Tanzania, Togo,
Tonga, Thailand, Trinidad and Tobago, Turkey, Tuvalu, Uganda, United
Kingdom, Uruguay, Vatican City, Venezuela, Western Sahara, Western
Samoa, Zaire, Zambia, and Zimbabwe.
(2) Eligible commodities. All computers, including electronic
assemblies and specially designed components therefor are eligible for
License Exception CTP to Tier 1 destinations, subject to the
restrictions in paragraph (b) of this section.
(d) Computer Tier 3--(1) Eligible countries. The countries that are
eligible to receive exports and reexports under this License Exception
are Afghanistan, Albania, Algeria, Andorra, Angola, Armenia,
Azerbaijan, Bahrain, Belarus, Bosnia & Herzegovina, Bulgaria, Cambodia,
China (People's Republic of), Comoros, Croatia, Djibouti, Egypt,
Georgia, India, Israel, Jordan, Kazakhstan, Kuwait, Kyrgyzstan, Laos,
Latvia, Lebanon, Macau, Macedonia (The Former Yugoslav Republic of),
Mauritania, Moldova, Mongolia, Morocco, Oman, Pakistan, Qatar, Russia,
Saudi Arabia, Tajikistan, Tunisia, Turkmenistan, Ukraine, United Arab
Emirates, Uzbekistan, Vanuatu, Vietnam, Yemen, and Federal Republic of
Yugoslavia (Serbia and Montenegro).
(2) Eligible commodities. All computers, including electronic
assemblies and specially designed components therefor having a CTP less
than or equal to 85,000 MTOPS are eligible for License Exception CTP to
Tier 3 destinations, subject to the restrictions in paragraphs (b) and
(d)(3) of this section.
(3) Eligible exports. Only exports and reexports to permitted end-
users and end-uses located in countries in Computer Tier 3. License
Exception CTP does not authorize exports and reexports to Computer Tier
3 for nuclear, chemical, biological, or missile end-users and end-uses
subject to license requirements under Sec. 744.2, Sec. 744.3,
Sec. 744.4, and Sec. 744.5 of the EAR. Such exports and reexports will
continue to require a license and will be considered on a case-by-case
basis. Retransfers to these end-users and end-uses in eligible
countries are strictly prohibited without prior authorization.
(e) Reporting requirements. See Sec. 743.1 of the EAR for reporting
requirements of certain items under License Exception CTP.
Sec. 740.11 Governments, international organizations, and
international inspections under the Chemical Weapons Convention (GOV).
* * * * *
(c) * * *
(2) * * *
(i) Computers with a Composite Theoretical Performance (CTP)
greater than 85,000 MTOPS. In addition, computers eligible for this
provision of License Exception GOV may not be accessed either
physically or computationally by nationals of Cuba, Iran, Iraq, Libya,
North Korea, Sudan, or Syria. No MTOPS limit applies to exports or
reexports to countries in Tier 1 (see Sec. 740.7(b)(1) of the EAR).
* * * * *
Sec. 740.16 Additional Permissive Reexports (APR).
* * * * *
(b) Reexports to and among Country Group A:1 and cooperating
countries. Reexports may be made to and among Country Group A:1 and
cooperating countries, provided that eligible commodities are for use
or consumption within a Country Group A:1 (see Supplement No. 1 to part
740) or cooperating country, or for reexport
[[Page 10615]]
from such country in accordance with other provisions of the EAR. All
commodities are eligible except those controlled for nuclear
nonproliferation reasons or missile technology reasons.
* * * * *
PART 742--[AMENDED]
10. Section 742.12 is amended by:
(a) Revising paragraph (a)(1);
(b) Revising paragraph (a)(3);
(c) Removing paragraph (b)(3)(i)(C);
(d) Adding a note to paragraph (b)(3)(i);
(e) Revising the phrase ``computers having a CTP greater than 6,500
MTOPS destined to'' to read ``high performance computers destined to''
in paragraph (b)(3)(iii);
(f) Revising paragraphs (b)(3)(iv)(A); and
(g) Adding a note to paragraph (b)(3)(iv)(B), to read as follows:
Sec. 742.12 High Performance Computers.
(a) License and recordkeeping requirements. (1) This section
contains special provisions for exports, reexports, and certain intra-
country transfers of high performance computers, including software,
and technology. This section affects the following ECCNs: 4A001; 4A002;
4A003; 4D001; 4D002; and 4E001. Licenses are required under this
section for ECCN's having an ``XP'' under ``Reason for Control'',
unless a License Exception is available (see part 740 of the EAR).
Post-shipment verification reporting or Wassenaar reporting may be
required when exporting or reexporting ``XP'' items under the
authorization of a License Exception (See 743.1 of the EAR for
Wassenaar reporting requirements and paragraph (b)(3)(iv) of this
section for post-shipment verification requirements). License
requirements reflected in this section are based on particular
destinations, end-users, or end-uses. For the calculation of CTP, see
the Technical Note that follows the list of ECCNs for Category 4 in the
Commerce Control List. Note that License Exception CTP contains
restrictions on access by nationals of certain countries, and on
reexports and transfers of computers.
* * * * *
(3) Exporters must keep accurate records of each export to non-
Wassenaar member countries (see Supplement No. 1 to part 743 of the
EAR) of a computer with a CTP greater than 75,000 MTOPS. These records
must be submitted semiannually to BXA and must contain the information
as described in Sec. 743.1 of the EAR.
(b) Licensing policy. * * *
(3) Computer Tier 3. * * *
(i) * * *
Note to Paragraph (b)(3)(i) of This Section: Exporters are
required to obtain a People's Republic of China (PRC) End-User
Certificate before exporting computers described by paragraph
(b)(3)(i) of this section to the PRC, regardless of value. (See
Sec. 748.10(c)(3) of the EAR for information on obtaining the PRC
End-User Certificate.)
(iv) Post-shipment verification. * * *
(A) Exporters must file post-shipment reports for high performance
computer exports, as well as exports of items used to enhance
previously exported or reexported computers, where the CTP is greater
than 85,000 MTOPS.
(B) * * *
Note to Paragraph (b)(3)(iv)(B) of This Section: Exporters are
required to provide the PRC End-User Certificate Number to BXA as
part of their post-shipment report (see paragraph (b)(3)(iv) of this
section). When providing the PRC End-User Certificate Number to BXA,
you must identify the transaction in the post shipment report to
which that PRC End-User Certificate Number applies.
* * * * *
PART 743--[AMENDED]
11. Section 743.1 is amended by revising paragraph (c)(2) and, the
note to paragraph (c)(2) and adding paragraph (e)(2) to read as
follows:
Sec. 743.1 Wassenaar Arrangement.
* * * * *
(c) Items for which reports are required. * * *
(2) Reports for ``digital computers'' and ``electronic assemblies''
controlled under ECCN 4A003.b and .c are required only for computers
with a composite theoretical performance (CTP) exceeding 75,000 MTOPS
or computer enhancements thereof such that the CTP of the aggregation
exceeds 75,000 MTOPS. Records for software controlled by 4D001 are
required for software specially designed for the development or
production of computers having a CTP exceeding 75,000 MTOPS. For the
calculation of CTP, see the Technical Note for Category 4 in the
Commerce Control List (Supplement No. 2 to part 774 of the EAR).
Note to Paragraph (c)(2): Reports for exports to Computer Tier 3
destinations (see Sec. 740.7(d)(1) of the EAR) of computers having a
CTP level of greater than 85,000 MTOPS, should be reported under the
post shipment verification reporting provisions of Sec. 742.12 of
the EAR and need not be reported under the Wassenaar reporting
provisions in this section of the EAR.
* * * * *
(e) * * *
(2) Reports for ``digital computers'' and ``electronic assemblies''
controlled under ECCN 4A003.b and .c must include the CTP of each
computer or aggregation of computing elements in shipment.
PART 748--[AMENDED]
12. Section 748.10 is amended by revising paragraph (b)(3) to read
as follows:
Sec. 748.10 Import and End-User Certificates.
* * * * *
(b) * * *
(3) Your transaction involves an export to the People's Republic of
China (PRC) of a computer, regardless of dollar value, that requires a
license application.
* * * * *
PART 774--[AMENDED]
13. In Supplement No. 1 to part 774 (the Commerce Control List),
Category 4--Computers is amended by revising Export Control
Classification Number (ECCN) 4A003; ``License Requirements'' and ``List
of Items Controlled'' sections of ECCN 4A001; and the ``License
Requirements'' section of ECCNs of 4A002, 4D001, 4D002, and 4E001 to
read as follows:
4A001 Electronic computers and related equipment, and ``electronic
assemblies'' and specially designed components therefor
License Requirements
Reason for Control: NS, MT, AT, NP, XP
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
NS applies to entire entry................ NS Column 2.
MT applies to items in 4A001.a when the MT Column 1.
parameters in 4A101 are met or exceeded.
AT applies to entire entry................ AT Column 1.
------------------------------------------------------------------------
NP applies, unless a License Exception is available. See
Sec. 742.3(b) of the EAR for information on applicable licensing review
policies.
XP applies to electronic computers with a CTP greater than 28,000
MTOPS, unless a License Exception is available. XP controls vary
according to destination and end-user and end-use; however, XP does not
apply to Canada. See Sec. 742.12 of the EAR for additional information.
License Requirement Notes: See Sec. 743.1 of the EAR for reporting
[[Page 10616]]
requirements for exports under License Exceptions.
* * * * *
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value
Related Controls: See also 4A101 and 4A994. Equipment designed or rated
for transient ionizing radiation is subject to the export licensing
authority of the U.S. Department of State, Office of Defense Trade
Controls. (See 22 CFR part 121.)
Related Definitions: For the purposes of integrated circuits in
4A001.a.2, 5 x 103 Gy(Si) = 5 x 105 Rads
(Si); 5 x 106 Gy (Si)/s = 5 x 108 Rads (Si)/
s.
Items:
a. Specially designed to have either of the following characteristics:
a.1. Rated for operation at an ambient temperature below 228 K
(-45 deg.C) or above 358 K (85 deg.C);
Note: 4A001.a.1. does not apply to computers specially designed
for civil automobile or railway train applications.
a.2. Radiation hardened to exceed any of the following specifications:
a.2.a. A total dose of 5 x 103 Gy (Si);
a.2.b. A dose rate upset of 5 x 106 Gy (Si)/s; or
a.2.c. Single Event Upset of 1 x 10-7 Error/bit/day;
b. Having characteristics or performing functions exceeding the limits
in Category 5, Part 2 (``Information Security'').
4A002 ``Hybrid computers'' and ``electronic assemblies'' and
specially designed components therefor
License Requirements
Reason for Control: NS, MT, AT, NP, XP
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
NS applies to entire entry................ NS Column 2.
MT applies to hybrid computers combined MT Column 1.
with specially designed ``software'', for
modeling, simulation, or design
integration of complete rocket systems
and unmanned air vehicle systems that are
usable in systems controlled for MT
reasons.
AT applies to entire entry................ AT Column 1.
------------------------------------------------------------------------
NP applies, unless a License Exception is available. See Sec. 742.3(b)
of the EAR for information on applicable licensing review policies.
XP applies to hybrid computers with a CTP greater than 28,000 MTOPS,
unless a License Exception is available. XP controls vary according to
destination and end-user and end-use; however, XP does not apply to
Canada. See Sec. 742.12 of the EAR for additional information.
* * * * *
4A003 ``Digital computers'', ``electronic assemblies'', and
related equipment therefor, and specially designed components
therefor
License Requirements
Reason for Control: NS, MT, CC, AT, NP, XP
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
NS applies to 4A003.b and .c NS........... Column 1
NS applies to 4A003.a, d, .e, and .g...... NS Column 2
MT applies to digital computers used as MT Column 1
ancillary equipment for test facilities
and equipment that are controlled by
9B005 or 9B006.
CC applies to digital computers for CC Column 1
computerized finger-print equipment.
AT applies to entire entry (refer to 4A994 AT Column 1
for controls on digital computers with a
CTP 6 but to
28,000 MTOPS).
------------------------------------------------------------------------
NP applies, unless a License Exception is available. See Sec. 742.3(b)
of the EAR for information on applicable licensing review policies.
XP applies to digital computers with a CTP greater than 28,000 MTOPS,
unless a License Exception is available. XP controls vary according to
destination and end-user and end-use; however, XP does not apply to
Canada. See Sec. 742.12 of the EAR for additional information.
Note: For all destinations, except Cuba, Iran, Iraq, Libya,
North Korea, Sudan, Syria, no license is required (NLR) for
computers with a CTP not greater than 28,000 MTOPS and for
``electronic assemblies'' described in 4A003.c that are not capable
of exceeding a CTP greater than 28,000 MTOPS in aggregation.
Computers controlled in this entry for MT reasons are not eligible
for NLR.
License Requirement Notes: See Sec. 743.1 of the EAR for reporting
requirements for exports under License Exceptions.
License Exceptions
LVS: $5000; N/A for MT, b. and .c.
GBS: Yes, for 4A003.d, .e, and .g and specially designed components
therefor, exported separately or as part of a system.
CTP: Yes, for computers controlled by 4A003.a or .b, and ``electronic
assemblies'' controlled by 4A003.c, to the exclusion of other technical
parameters, with the exception of parameters specified as controlled
for Missile Technology (MT) concerns and 4A003.e (equipment performing
analog-to-digital or digital-to-analog conversions exceeding the limits
of 3A001.a.5.a). See Sec. 740.7 of the EAR.
CIV: Yes, for .e, and .g.
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value
Related Controls: See also 4A994 and 4A980
Related Definitions: N/A
Items:
Note 1: 4A003 includes the following:
a. Vector processors;
b. Array processors;
c. Digital signal processors;
d. Logic processors;
e. Equipment designed for ``image enhancement'';
f. Equipment designed for ``signal processing''.
Note 2: The control status of the ``digital computers'' and
related equipment described in 4A003 is determined by the control
status of other equipment or systems provided:
a. The ``digital computers'' or related equipment are essential
for the operation of the other equipment or systems;
b. The ``digital computers'' or related equipment are not a
``principal element'' of the other equipment or systems; and
N.B. 1: The control status of ``signal processing'' or ``image
enhancement'' equipment specially designed for other equipment with
functions limited to those required for the other equipment is
determined by the control status of the other equipment even if it
exceeds the ``principal element'' criterion.
N.B. 2: For the control status of ``digital computers'' or
related equipment for telecommunications equipment, see Category 5,
Part 1 (Telecommunications).
c. The ``technology'' for the ``digital computers'' and related
equipment is determined by 4E.
a. Designed or modified for ``fault tolerance'';
Note: For the purposes of 4A003.a., ``digital computers'' and
related equipment are not considered to be designed or modified for
``fault tolerance'' if they utilize any of the following:
1. Error detection or correction algorithms in ``main storage'';
2. The interconnection of two ``digital computers'' so that, if
the active central
[[Page 10617]]
processing unit fails, an idling but mirroring central processing
unit can continue the system's functioning;
3. The interconnection of two central processing units by data
channels or by use of shared storage to permit one central
processing unit to perform other work until the second central
processing unit fails, at which time the first central processing
unit takes over in order to continue the system's functioning; or
4. The synchronization of two central processing units by
``software'' so that one central processing unit recognizes when the
other central processing unit fails and recovers tasks from the
failing unit.
b. ``Digital computers'' having a ``composite theoretical
performance'' (``CTP'') exceeding 28,000 million theoretical operations
per second (MTOPS);
c. ``Electronic assemblies'' specially designed or modified to be
capable of enhancing performance by aggregation of ``computing
elements'' (``CEs'') so that the ``CTP'' of the aggregation exceeds the
limit in 4A003.b.;
Note 1: 4A003.c applies only to ``electronic assemblies'' and
programmable interconnections not exceeding the limit in 4A003.b.
when shipped as unintegrated ``electronic assemblies''. It does not
apply to ``electronic assemblies'' inherently limited by nature of
their design for use as related equipment controlled by 4A003.d, or
4A003.e.
Note 2: 4A003.c does not control ``electronic assemblies''
specially designed for a product or family of products whose maximum
configuration does not exceed the limit of 4A003.b.
d. Graphics accelerators and graphics coprocessors exceeding a
``three dimensional Vector Rate'' of 200,000,000;
e. Equipment performing analog-to-digital conversions exceeding
the limits in 3A001.a.5;
f. Reserved.
g. Equipment specially designed to provide external
interconnection of ``digital computers'' or associated equipment
that allows communications at data rates exceeding 1.25 Gbyte/s.
Note: 4A003.g does not control internal interconnection
equipment (e.g., backplanes, buses) passive interconnection
equipment, ``network access controllers'' or ``communication channel
controllers''.
* * * * *
4D001 ``Software'' Specially Designed or Modified for the
``Development'', ``Production'' or ``Use'' of Equipment or
``Software'' Controlled by 4A001 to 4A004, or 4D (Except 4D980,
4D993 or 4D994)
License Requirements
Reason for Control: NS, MT, CC, AT, NP, XP
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
NS applies to ``software'' for commodities NS Column 1.
or software controlled by 4A001 to 4A004,
4D001 to 4D003.
MT applies to ``software'' for equipment MT Column 1.
controlled by 4A001 to 4A003 for MT
reasons.
CC applies to ``software'' for CC Column 1.
computerized finger-print equipment
controlled by 4A003 for CC reasons.
AT applies to entire entry................ AT Column 1.
------------------------------------------------------------------------
NP applies, unless a License Exception is available. See Sec. 742.3(b)
of the EAR for information on applicable licensing review policies.
XP applies to ``software'' for computers with a CTP greater than 28,000
MTOPS, unless a License Exception is available. XP controls vary
according to destination and end-user and end-use; however, XP does not
apply to Canada. See Sec. 742.12 of the EAR for additional information.
License Requirement Notes: See Sec. 743.1 of the EAR for reporting
requirements for exports under License Exceptions.
* * * * *
4D002 ``Software'' Specially Designed or Modified to Support
``Technology'' Controlled by 4E (Except 4E980, 4E992, and 4E993)
License Requirements
Reason for Control: NS, MT, AT, NP, XP
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
NS applies to entire entry................ NS Column 1.
MT applies to ``software'' for equipment MT Column 1.
controlled by 4E for MT reasons.
AT applies to entire entry................ AT Column 1.
------------------------------------------------------------------------
NP applies, unless a License Exception is available. See Sec. 742.3(b)
of the EAR for information on applicable licensing review policies.
XP applies to ``software'' for computers with a CTP greater than 28,000
MTOPS, unless a License Exception is available. XP controls vary
according to destination and end-user and end-use; however, XP does not
apply to Canada. See Sec. 742.12 of the EAR for additional information.
* * * * *
4E001 ``Technology'' According to the General Technology Note, for
the ``Development'', ``Production'' or ``Use'' of Equipment or
``Software'' Controlled by 4A (Except 4A980, 4A993 or 4A994) or 4D
(Except 4D980, 4D993, 4D994).
License Requirements
Reason for Control: NS, MT, CC, AT, NP, XP
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
NS applies to ``technology'' for NS Column 1.
commodities or software controlled by
4A001 to 4A004, 4D001 to 4D003.
MT applies to ``technology'' for items MT Column 1.
controlled by 4A001 to 4A003 4A101,
4D001, 4D102 or 4D002 for MT reasons.
CC applies to ``technology'' for CC Column 1.
computerized fingerprint equipment
controlled by 4A003 for CC reasons.
AT applies to entire entry................ AT Column 1.
------------------------------------------------------------------------
NP applies, unless a License Exception is available. See Sec. 742.3(b)
of the EAR for information on applicable licensing review policies.
XP applies to ``technology'' for computers with a CTP greater than
28,000 MTOPS, unless a License Exception is available. XP controls vary
according to destination and end-user and end-use, however, XP does not
apply to Canada. See Sec. 742.12 of the EAR for additional information.
License Requirement Notes: See Sec. 743.1 of the EAR for reporting
requirements for exports under License Exceptions.
* * * * *
Dated: March 5, 2002.
James J. Jochum,
Assistant Secretary for Export Administration.
[FR Doc. 02-5563 Filed 3-5-02; 4:04 pm]
BILLING CODE 3510-33-P