[Federal Register Volume 72, Number 55 (Thursday, March 22, 2007)]
[Rules and Regulations]
[Pages 13440-13442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5271]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 740, 748 and 774

[Docket No. 070308049-7056-01]
RIN 0694-AD98


Corrections to Rule that Implemented the New Formula for 
Calculating Computer Performance: Adjusted Peak Performance (APP) in 
Weighted TeraFLOPS

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule; correction.

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SUMMARY: This rule corrects errors that were published on April 24, 
2006, in the rule that implemented the new formula for calculating 
computer performance in Weighted TeraFLOPS (71 FR 20876). These errors 
include references to Missile Technology controls that were removed by 
the April 24, 2006 rule, as well as errors related to scope of controls 
and license exceptions described in certain Export Control 
Classification Numbers.

DATES: Effective Dates: This rule is effective: March 22, 2007.

FOR FURTHER INFORMATION CONTACT: For questions of a technical nature 
contact: Joseph Young, Office of National Security and Technology 
Transfer Controls at 202-482-4197 or e-mail: [email protected]. For 
questions of a non-technical nature contact: Sharron Cook, Office of 
Exporter Services at 202-482-2440 or e-mail: [email protected].

SUPPLEMENTARY INFORMATION

Background

    A rule published on April 24, 2006, added to the Export 
Administration Regulations (EAR) provisions that implemented the new 
formula for calculating computer performance in Weighted TeraFLOPS 
(WT). That rule included the removal of missile technology (MT) 
controls on certain commodities in Export Control Classification Number 
(ECCN) 4A003. Since publication, however, it was observed that some 
references to MT controls were inadvertently left in Note 1 of the 
License Requirement section and in the License Exception LVS 
eligibility section. This rule removes references to MT controls from 
4A003.
    In addition, because of the removal of MT controls from ECCNs 4A003 
and 4D001 in the April 24, 2006 rule, the sentence in section 740.7 of 
the EAR (License Exception APP) that states ``Technology for computers 
controlled for missile technology (MT) reasons are not eligible for 
License Exception APP'' is no longer necessary and is therefore removed 
by this rule.
    This rule corrects and simplifies the headings of ECCNs 4E001 and 
4D001 by removing specific ECCN references and pointing to the List of 
Items Controlled section to determine the technology and software 
controls for these ECCNs. In addition, this rule revises the National 
Security control text by removing specific references to ECCNs and 
simplifying it to read ``NS applies to entire entry.'' This rule also 
corrects and simplifies the License Exception TSR eligibility text in 
the License Exception section of ECCN 4D001 to read ``Yes, for 
`software' described in 4D001.b with an `Adjusted Peak Performance' 
(`APP') equal to or less than 0.1 WT.'' A similar revision is made to 
correct and simplify

[[Page 13441]]

the License Exception TSR eligibility text in ECCN 4E001.
    This rule also removes a duplicate paragraph in paragraph (c) of 
Supplement No. 2 to part 748, which was unintentionally left in this 
paragraph.
    Although the Export Administration Act expired on August 20, 2001, 
the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 
2001 Comp., p. 783 (2002), as extended by the Notice of August 3, 2006, 
71 FR 44551 (August 7, 2006), has continued the Export Administration 
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 E.O. 12866.
    2. Notwithstanding any other provision of law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with a collection of information, subject to the 
requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.) (PRA), unless that collection of information displays a currently 
valid Office of Management and Budget (OMB) Control Number. This rule 
involves two collections of information subject to the PRA. One of the 
collections has been approved by OMB under control number 0694-0088, 
``Multi-Purpose Application,'' and carries a burden hour estimate of 58 
minutes for a manual or electronic submission. The other of the 
collections has been approved by OMB under control number 0694-0106, `` 
Reporting and Recordkeeping Requirements under the Wassenaar 
Arrangement,'' and carries a burden hour estimate of 21 minutes for a 
manual or electronic submission. Send comments regarding these burden 
estimates or any other aspect of these collections of information, 
including suggestions for reducing the burden, to OMB Desk Officer, New 
Executive Office Building, Washington, DC 20503; and to the Office of 
Administration, Bureau of Industry and Security, Department of 
Commerce, 14th and Pennsylvania Avenue, NW., Room 6883, Washington, DC 
20230.
    3. This rule does not contain policies with Federalism implications 
as that term is defined under E.O. 13132.
    4. The provisions of the Administrative Procedure Act (5 U.S.C. 
553) requiring notice of proposed rulemaking, the opportunity for 
public participation, and a delay in effective date, are inapplicable 
because this regulation involves a military and foreign affairs 
function of the United States (5 U.S.C. 553(a)(1)). Further, no other 
law requires that a notice of proposed rulemaking and an opportunity 
for public comment be given for this final rule. Because a notice of 
proposed rulemaking and an opportunity for public comment are not 
required to be given for this rule under the Administrative Procedure 
Act or by any other law, the analytical requirements of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. 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 Sharron Cook, Office 
of Exporter Services, Bureau of Industry and Security, Department of 
Commerce, P.O. Box 273, Washington, DC 20044, or to [email protected].

List of Subjects

15 CFR Parts 740 and 748

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

15 CFR Part 774

    Exports, Reporting and recordkeeping requirements.

0
Accordingly, parts 740, 748 and 774 of the Export Administration 
Regulations (15 CFR parts 730-799) are amended as follows:

PART 740--[AMENDED]

0
1. The authority citation for 15 CFR part 740 continues to read as 
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
Sec. 901-911, Pub. L. 106-387; E.O. 13026, 61 FR 58767, 3 CFR, 1996 
Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; 
Notice of August 3, 2006, 71 FR 44551 (August 7, 2006).


Sec.  740.7  [Amended]

0
2. Section 740.7 is amended by removing the last sentence in paragraph 
(a)(2).

PART 748--[AMENDED]

0
3. The authority citation for 15 CFR part 748 continues 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, 3 CFR, 2001 Comp., p. 783; Notice of August 3, 2006, 71 FR 
44551 (August 7, 2006).

Supplement No. 2 to Part 748 [Amended]

0
4. Supplement No. 2 to part 748 is amended by removing the undesignated 
paragraph following the introductory text of paragraph (c).

PART 774--[AMENDED]

0
5. 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, Pub. L. 106-387; Sec. 
221, Pub. L. 107-56; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of 
August 3, 2006, 71 FR 44551 (August 7, 2006).

Supplement No. 1 to Part 774 [Amended]

0
6. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 4--Computers, Export Control Classification Number (ECCN) 
4A003 is amended by revising the License Requirements section and the 
License Exceptions section, to read as follows:

4A003 ``Digital computers'', ``electronic assemblies'', and related 
equipment therefor, as follows, and specially designed components 
therefor.

License Requirements

    Reason for Control: NS, CC, AT, NP.

------------------------------------------------------------------------
               Control(s)                         Country chart
------------------------------------------------------------------------
NS applies to 4A003.b and .c...........  NS Column 1.
NS applies to 4A003.a, .e, and .g......  NS Column 2.
CC applies to ``digital computers'' for  CC Column 1.
 computerized finger-print equipment.
AT applies to entire entry (refer to     AT Column 1.
 4A994 for controls on ``digital
 computers'' with a APP $ 0.00001 but
  to 0.75 WT).
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    NP applies, unless a License Exception is available. See Sec.  
742.3(b) of the EAR for information on applicable licensing review 
policies.

    Note 1: For all destinations, except those countries in Country 
Group E:1 of Supplement No. 1 to part 740 of the EAR, no license is 
required (NLR) for computers with an ``Adjusted Peak Performance'' 
(``APP'') not exceeding 0.75 Weighted TeraFLOPS (WT) and for 
``electronic assemblies'' described in 4A003.c that are not capable 
of exceeding an ``Adjusted Peak Performance'' (``APP'') exceeding 
0.75 Weighted TeraFLOPS (WT) in aggregation, except certain 
transfers as set forth in Sec.  746.3 (Iraq).



[[Page 13442]]


    Note 2: Special Post Shipment Verification reporting and 
recordkeeping requirements for exports of computers to destinations 
in Computer Tier 3 may be found in Sec.  743.2 of the EAR.

License Exceptions

    LVS: $5000; N/A for 4A003.b and .c.
    GBS: Yes, for 4A003.e, and .g and specially designed components 
therefor, exported separately or as part of a system.
    APP: 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 4A003.e (equipment 
performing analog-to-digital conversions exceeding the limits of 
3A001.a.5.a). See Sec.  740.7 of the EAR.
    CIV: Yes, for 4A003.e, and .g.
* * * * *

0
7. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 4--Computers, Export Control Classification Number (ECCN) 
4D001 is amended by revising the Heading, the License Requirements 
section, and the License Exceptions section, to read as follows:

4D001 Specified ``software'', see List of Items Controlled.

License Requirements

    Reason for Control: NS, CC, AT, NP.

------------------------------------------------------------------------
               Control(s)                         Country chart
------------------------------------------------------------------------
NS applies to entire entry.............  NS Column 1.
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.

License Exceptions

    CIV: N/A
    TSR: Yes, for ``software'' described in 4D001.b with an ``Adjusted 
Peak Performance'' (``APP'') equal to or less than 0.1 WT.
    APP: Yes to specific countries (see Sec.  740.7 of the EAR for 
eligibility criteria)
* * * * *

0
8. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 4--Computers, Export Control Classification Number (ECCN) 
4E001 is amended by revising the Heading, the License Requirements 
section, and the License Exceptions section, to read as follows:

4E001 Specified ``technology'', see List of Items Controlled.

License Requirements

    Reason for Control: NS, MT, CC, AT, NP.

------------------------------------------------------------------------
               Control(s)                         Country chart
------------------------------------------------------------------------
NS applies to entire entry.............  NS Column 1.
MT applies to ``technology'' for items   MT Column 1.
 controlled by 4A001.a and 4A101 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.
    License Requirement Notes: See Sec.  743.1 of the EAR for reporting 
requirements for exports under License Exceptions.

License Exceptions

    CIV: N/A
    TSR: Yes, for ``technology'' described in 4E001.b with an 
``Adjusted Peak Performance'' (``APP'') equal to or less than 0.1 WT.
    APP: Yes to specific countries (see Sec.  740.7 of the EAR for 
eligibility criteria).
* * * * *

Eileen M. Albanese,
Director, Office of Exporter Services.
[FR Doc. E7-5271 Filed 3-21-07; 8:45 am]
BILLING CODE 3510-33-P