Implementation of New Formula for Calculating Computer Performance: Adjusted Peak Performance (APP) in Weighted TeraFLOPS; Bulgaria; XP and MT Controls, 20876-20894 [06-3647]

Agencies

• DEPARTMENT OF COMMERCE
• Bureau of Industry and Security
• Industry and Security Bureau

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)]
[Rules and Regulations]
[Pages 20876-20894]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3647]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 730, 732, 734, 738, 740, 742, 743, 746, 748, 750, 752, 
762, 770, 772 and 774

[Docket No. 060404096-6096-01]
RIN 0694-AD66


Implementation of New Formula for Calculating Computer 
Performance: Adjusted Peak Performance (APP) in Weighted TeraFLOPS; 
Bulgaria; XP and MT Controls

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the Export Administration Regulations 
to implement the Wassenaar Arrangement's December 2005 agreement to 
revise the formula for calculating computer performance from Composite 
Theoretical Performance (CTP) measured in Millions of Theoretical 
Operations Per Second (MTOPS) to Adjusted Peak Performance (APP) 
measured in Weighted TeraFLOPS (Trillion Floating point Operations Per 
Second) (WT). This rule also establishes new control levels in Category 
4 of the Commerce Control List (CCL) expressed in WT. In addition, this 
rule renames License Exception CTP to License Exception APP (Adjusted 
Peak Performance) to correspond to the new formula. This rule also 
makes conforming changes to the EAR based on the new computer 
parameter, such as, revising the parameters for eligibility of License 
Exception APP.

[[Page 20877]]

    This rule also moves Bulgaria from Computer Tier 3 to Computer Tier 
1, removes High Performance Computer (XP) and Missile Technology (MT) 
controls from certain Export Control Classification Numbers (ECCNs) in 
Category 4 of the CCL, and removes the section of the EAR dedicated to 
various requirements for high performance computers.

DATES: Effective Dates: This rule is effective on April 24, 2006, with 
the exception of the movement of Bulgaria from Computer Tier 3 to 
Computer Tier 1 in section 740.7 of the EAR, which will be effective 
June 3, 2006.

FOR FURTHER INFORMATION CONTACT: For questions of a general nature 
contact Sharron Cook, Office of Exporter Services, Regulatory Policy 
Division at (202) 482-2440 or E-Mail: scook@bis.doc.gov.
    For questions of a technical nature contact Joseph Young, Office of 
National Security and Technology Transfer Controls at 202-482-4197 or 
E-Mail: jyoung@bis.doc.gov.

SUPPLEMENTARY INFORMATION:

Background

The Wassenaar Arrangement

    The United States is one of 40 states participating in 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 developing common 
understandings of the risks associated with the transfers of these 
items. In December 2005, the Wassenaar Arrangement met in Plenary 
session and agreed to implement a new computer performance formula and 
associated control levels for export control purposes.

Composite Theoretical Performance (CTP) to Adjusted Peak Performance 
(APP)

    For more than a decade, Composite Theoretical Performance (CTP) has 
been used for measuring computer performance for the purpose of export 
control. CTP, expressed in millions of theoretical operations per 
second (MTOPS), is difficult to calculate and, because of remarkable 
changes in computer architecture and semiconductor technology, has 
significant shortcomings in the ranking of computers. As a result of 
the limitations of CTP and the continued growth of commodity cluster 
systems, the Administration conducted a comprehensive review of export 
controls on computer hardware. In 2004, the Departments of Defense and 
Energy conducted an assessment of U.S. Government requirements and 
benchmark tests. The review identified a controllable class of high-end 
proprietary computer systems, a more effective metric for controlling 
such systems, and a new proposed control level. As a result, the 
interagency group concerned, including the Departments of Defense, 
State, Energy and Commerce, concluded that CTP (measured in MTOPS) has 
been unable to keep up with advances in computer architecture 
technology, and no longer meets national security objectives. 
Specifically, the CTP formula does not adequately distinguish between 
generic commodity systems and vector systems. The CTP formula 
imprecisely equates off-the-shelf systems based on low-cost widely 
available microprocessors--computers with lesser national security 
significance--with high-end special order high performance computers 
such as vector systems, which have greater national security 
significance.
    The CTP calculation takes into account short word length 
operations. As state-of-the-art computers have evolved, capabilities to 
perform this class of operations have become ubiquitous in multi-media 
extensions (MMX) in low-cost commodity microprocessors. The requirement 
to include these operations when using the CTP formula complicates the 
calculation and overstates the scientific computational capability of 
these systems by as much as a factor of two.
    Even as a formula for this class of computers, CTP has several 
problems. The CTP formula does not distinguish between architectures, 
and arguably understates the performance of vector supercomputers 
relative to aggregations of scalar processors. The inclusion of short 
word length operations and the current formula for aggregation make the 
CTP formula unnecessarily complicated to calculate for modern computing 
architectures, with no offsetting benefit to national security.
    Since 1999, a number of alternatives to the CTP formula have been 
suggested. These ranged from dispensing with a ``formula'' and simply 
counting the number of processors in a computer to implementing more 
rigorous formulas for measuring computer performance, such as 
incorporating memory and/or interconnect bandwidth. All of these 
alternatives raised definitional problems or required even more vendor-
proprietary data than is currently necessary for CTP calculations.
    The Administration's assessment identified a controllable class of 
high end proprietary computer systems with the most significant 
national security applications, a more effective formula for 
identifying such systems, and a new proposed control level. A formula 
was needed to draw a clear distinction between vector systems which 
have significantly more value in national security applications and 
non-vector systems. It was determined that double precision floating-
point computation (DP FP) was the most meaningful measure of HPC 
performance for export control purposes to distinguish between vector 
and non-vector systems. This distinction is critical to achieving the 
nation's computer export control policy objectives. By using DP FP 
performance as the basis for export controls, the inflation introduced 
by short word length operands in the formula used for calculating CTP 
is eliminated and the playing field leveled for competing 
microprocessor architectures.
    The new control formula based on DP FP is Adjusted Peak Performance 
(APP) measured in Weighted TeraFLOPS (WT). The APP formula allows for 
much more targeted control of the high-end, special order HPCs, such as 
vector systems and proprietary cluster systems, which are of the 
greatest national security significance. The APP formula is derived 
from existing industry standards and is easier to calculate than the 
CTP formula. The APP formula will maintain controls on high-end high 
performance computers (HPCs) capable of computationally intensive 
national security operations. The APP formula places more weight on 
vector systems than non-vector systems. Considering the superior 
performance of vector supercomputers for some important applications 
and an analysis of applications and the High Performance Linpack 
benchmarks, a weighting of 0.9 was selected for vector processors. 
Currently available HPC systems exhibit a wide range of efficiencies. A 
weighting factor of 0.3 was appropriate for other classes of non-vector 
export controlled HPC systems. The 0.3 weighting factor is a rough 
approximation of the relative performance observed between vector and 
non-vector HPCs over a representative range of applications.

[[Page 20878]]

APP provides more consistent treatment for all comparable systems than 
CTP.

Setting of the Control Thresholds

    The Administration's assessment determined that the appropriate 
control level for computers using the APP formula is 0.75 WT, which was 
proposed in the April 2005 meeting of the Wassenaar Arrangement and 
agreed to at the December 2005 Wassenaar Arrangement Plenary meeting. 
This determination was based on the Departments of Defense and Energy 
HPC benchmarks, procurement and usage; the government's ability to 
control state-of-the-art technology (i.e., proprietary and vector 
systems); the ability of Tier 3 countries to achieve a given level of 
performance for range of architectures; and maintenance of a level 
playing field among comparable products.
    The 0.75 WT control level recognizes the foreign availability of 
the computing capacity illustrated by the Chinese commodity cluster 
systems currently ranked on the Top-500 List of fastest HPCs in the 
world. The 0.75 WT level continues to control high-end proprietary 
HPCs, such as those used by the Department of Defense and the 
Department of Energy for advanced research, development, and 
simulation, while removing controls on the lower-end, more widely 
available systems.
    The Wassenaar Arrangement agreed to set the Basic List control 
level for computer software and technology at 0.04 WT, and this was 
based on computer chip manufacturer projections of what chips would be 
in production by the end of 2007, e.g., a 4 GHz, dual core Itanium 
processor would have an APP of 0.0384 WT. The Wassenaar Sensitive List 
threshold for computer development and production technology and 
software was set at 0.1 WT to limit the production of multi-board 
computer vector systems, such as the 8 way Cray X1 or the 4 way Cray 
XE.
    The EAR also set forth several other computer control levels, for 
purposes of unilateral anti-terrorism controls and License Exception 
eligibility, that do not have Wassenaar Arrangement equivalents. This 
final rule makes conforming changes in these provisions by establishing 
control levels expressed in WT using the APP formula. These control 
thresholds were obtained by finding a computer chip that had a CTP 
equivalent to the CTP threshold control level in the EAR, performing 
the APP formula on the chip, and then rounding up. For instance, in 
ECCN 4A994 the CTP threshold is 6 MTOPS. This is very similar in 
performance to the Intel 386 microprocessor. When the APP formula is 
applied to the Intel 386, the APP equals 0.00001 WT (after rounding 
up).

National Defense Authorization Act (NDAA) Congressional Notification 
Requirement

    Subsections 1211(d) and (e) of the National Defense Authorization 
Act (NDAA) for FY 1998 (Pub. L. 105-85, November 18, 1997, 111 Stat. 
1932) provides that the President must submit a report to Congress 60 
days before adjusting the composite theoretical performance level above 
which exports of digital computers to Tier 3 countries require a 
license. The President sent a report to Congress on February 3, 2006 
that establishes and provides justification for the 0.75 WT control 
level using the APP formula.

Bulgaria

    This rule removes Bulgaria from Computer Tier 3 and places it in 
Computer Tier 1. However, due to the requirements in the 1998 National 
Defense Authorization Act (NDAA), removing Bulgaria from Computer Tier 
3 is not effective until 120 days after the Congress receives a report 
justifying such a removal. This report was sent to Congress on February 
3, 2006. Therefore, the movement of Bulgaria from Computer Tier 3 to 
Computer Tier 1 will become effective on June 3, 2006.
    Bulgaria is a member of the Wassenaar Arrangement, the Missile 
Technology Control Regime, the Australia Group, and the Nuclear 
Suppliers Group. Bulgaria is also a member of the North Atlantic Treaty 
Organization (NATO). Because of the Bulgarian Government's success in 
strengthening its export control system, it has been determined that 
moving Bulgaria from Computer Tier 3 to Computer Tier 1 will not 
decrease the national security of the United States, and may in fact 
strengthen it by building stronger coalitions with nations that 
understand the importance of a strong export control program. This 
revision will result in fewer license applications, because Bulgaria 
will be eligible for License Exception APP. In addition, the EAR will 
no longer require NDAA-based recordkeeping and post shipment 
verification reporting of exports of high performance computers to 
Bulgaria.

XP Reason for Control

    This rule removes the reason for control related to high 
performance computers (XP) from ECCNs 4A001, 4A003, 4D001, 4D002, and 
4E001. XP controls were implemented on March 25, 1996, 61 FR 12714, in 
the regulation entitled, ``Simplification of Export Administration 
Regulations.'' At the present time, XP controls do not enhance license 
requirements or license review policies that are already in place under 
the national security (NS) controls described in Sec.  742.4 of the 
EAR, the anti-terrorism (AT) controls in various parts of 742, or any 
other controls in the EAR. The XP control creates more of a burden to 
the public than assistance. In addition, placing special reporting and 
recordkeeping requirements in this section is not consistent with the 
organizational format of the EAR. The EAR has specific parts for 
special reporting and recordkeeping. For these reasons, this rule 
removes the reason for control XP from the aforementioned ECCNs. 
Conforming changes are also made to Sec.  738.2(d)(2)(i)(A) and Sec.  
746.3(a)(1) of the EAR.

Missile Technology Controls

    This rule removes the missile technology (MT) control from ECCN 
4A003. The MT control in 4A003 applies to digital computers used as 
ancillary equipment for test facilities and equipment that are 
controlled by ECCNs 9B005 or 9B005 (both non-MT controlled 
commodities). This MT control has no corresponding entry on the Missile 
Technology Control Regime's (MTCR) Annex. The computers that are 
described on the Missile Technology Control (MTCR) Annex fall under two 
entries 13.A.1 and 16.A.1. The 13.A.1 entry on the MTCR Annex is for 
ruggedized or radiation hardened computers and is controlled on the 
Commerce Control List (CCL) under ECCN 4A101 for MT and AT reasons. The 
16.A.1 entry on the MTCR Annex is for hybrid computers for modeling, 
simulation or design integration of missile or rocket systems or 
subsystems specified on the MTCR Annex, which is controlled on the CCL 
under ECCN 4A102 for MT and AT reasons. Therefore, because these 
computers are controlled under other ECCNs, this rule removes the MT 
control under ECCN 4A003. Corresponding amendments associated with the 
removal of the MT controls under ECCN 4A003, include:
    a. Removing the last sentence of Sec.  740.7(a)(1) of the EAR, 
which states that computers controlled for missile technology (MT) 
reasons are not eligible for License Exception APP. Because the only 
computers eligible for License Exception APP are classified under 4A003 
and this rule removes all MT controls from 4A003, this sentence is not 
necessary.
    b. Removing the phrase ``and software'' from the last sentence in

[[Page 20879]]

Sec.  740.7(a)(2) of the EAR, which states, ``Technology and software 
for computers controlled for missile technology (MT) reasons are not 
eligible for License Exception CTP.'' However, the only eligible 
software eligible for License Exception APP is classified under 4D001, 
and there are no existing MT controls in 4D001. However, there are MT 
controls in 4E001 for technology for items controlled by 4A001.a and 
4A101.
    c. For the same reasons stated in paragraph (a) above, the last 
sentence of the first paragraph in Sec.  770.2(l)(1) is removed, which 
stated, ``Computers controlled in this entry for MT reasons are not 
eligible for License Exception regardless of the CTP of the computer.''
    d. For the same reasons stated in paragraph (a) above, the phrase 
``parameters of Missile Technology concern, or'' is removed from the 
first sentence of the second paragraph in Sec.  770.2(l)(1).
    e. For the same reasons stated in paragraph (a) above, the second 
sentence of the second paragraph in Sec.  770.2(l)(1) is removed, which 
stated, ``This License Exception does not authorize the export or 
reexport of computers controlled for MT purposes regardless of the 
CTP.''

Section 742.12 ``High Performance Computers''

    The EAR has contained a section for high performance computers 
(HPCs) for over a decade. The rapid advance in technology created a 
high demand for information about export controls for computers among 
those who were not acquainted with the EAR, i.e., individuals using 
personal computers. Now that the HPC controls are raised to a level 
such that only high performance computers of the greatest national 
security concern require a license for export, BIS expects that it will 
receive fewer license applications for computers. As a result of this 
shift, there will be less burden on individual users of personal 
computers. The license requirements that are stated in 742.12 are 
redundant to those stated in other parts of the EAR, such as national 
security (Sec.  742.4 of the EAR), anti-terrorism (various sections of 
part 742), or nonproliferation controls found in part 744. For these 
reasons, this rule removes section 742.12. However, this rule will 
preserve the recordkeeping requirement for computers, mandated by the 
National Defense Authorization Act for FY 1998 (section 1212), by 
combining it with the special reporting requirements in part 743. In 
addition, this rule moves the post shipment verification reporting and 
recordkeeping requirements, mandated by the National Defense 
Authorization Act of FY 1998 (section 1213) to part 743 ``Special 
Reporting,'' under a new section 743.2 ``High Performance Computers: 
Post Shipment Verification Reporting.'' In addition, this rule revises 
Sec.  762.2(b)(6) of the EAR that referred to the recordkeeping 
requirements that were in Sec.  742.12 of the EAR, to reference section 
743.2 where the recordkeeping requirement has been moved.
    In conformance with the removal of Sec.  742.12, this rule revises 
a phrase in Sec.  734.4(a)(1) of the EAR. The phrase stated ``to 
Computer Tier 4 countries described in Sec.  742.12 of the EAR'' and is 
revised to read ``to Cuba, Iran, Libya, North Korea, Sudan, and 
Syria.'' All references to Computer Tier 4 are no longer necessary, 
because the license requirements and license review policy for these 
countries is found in either part 736, part 746, or part 742 of the EAR 
depending generally on it's status as a country that supports terrorism 
or its embargo status.
    In addition, this rule removes Supplement No. 3 to part 742 ``High 
Performance Computers; Safeguard Conditions and Related Information,'' 
because a sample security safeguard plan can be found on BIS's Web site 
at https://www.bis.doc.gov/hpcs/SecuritySafeguardPlans.html. The 
requirement for this security safeguard plan is added to paragraph 
(c)(2) of Supplement No. 2 to part 748 ``Unique Application and 
Submission Requirements'' of the EAR.

Section 740.7 License Exception APP (Formerly License Exception CTP)

    Because this rule changes the computer formula for determining 
computer performance from Composite Theoretical Performance (CTP) to 
Adjusted Peak Performance (APP), this rule revises the license 
exception symbol for License Exception CTP to ``APP.'' Hereafter, 
License Exception CTP will be known as License Exception APP. This rule 
also makes conforming changes throughout the EAR as a result of this 
change.
    This rule also makes ``use'' technology equal to or less than 0.75 
WT eligible for export under License Exception APP to Computer Tier 3 
destinations and to Computer Tier 1 destinations, other than the 
destinations that are listed in Sec.  740.7(c)(3)(i) of the EAR. The 
0.75 WT control threshold is consistent with levels agreed to by the 
Wassenaar Arrangement. The Wassenaar Arrangement agreed that 
development and production technology and source code for computers 
with an APP exceeding 0.1 Weighted TeraFLOPS (WT) is sensitive for 
conventional arms purposes. Therefore, eligibility under License 
Exception APP for development and production technology and source code 
to Computer Tier 3 destinations and to Computer Tier 1 destinations, 
other than the destinations that are listed in Sec.  740.7(c)(3)(i) of 
the EAR, is set at an APP of less than or equal to 0.1 WT.
    However, eligibility under License Exception APP for development 
and production technology and source code to Computer Tier 1 
destinations listed in Sec.  740.7(c)(3)(i) of the EAR is set at an APP 
of less than or equal to 0.75 WT, because these destinations are of 
lesser national security concern.

Supplement No. 2 to Part 748

    This rule clarifies the phrase ``according to the principal 
function of the equipment,'' by replacing it with references to Notes 
in Category 5 part 1 and part 2, where the applicant can find 
information to guide them about Category 5 telecommunication and 
information security functions. In paragraph (c), this rule deletes the 
phrase ``certifiable multi-level security or certifiable user isolation 
functions'' because this former 5A002 sub-item has been deleted.
    This rule also removes paragraph (c)(2), because Category 4 has not 
contained Advisory Notes for over a decade. In place of text that was 
in paragraph (c)(2), this rule adds a paragraph describing the security 
safeguard plan requirement. The United States requires security 
safeguards for exports, reexports, and in-country transfers of High 
Performance Computers (HPCs) to ensure that they are used for peaceful 
purposes. If you are submitting a license application for an export, 
reexport, or in-country transfer of a high performance computer to or 
within a destination in Computer Tier 3 (see Sec.  740.7(c)(1) of the 
EAR) or to Cuba, Iran, Libya, North Korea, Sudan, or Syria you must 
include with your license application a security safeguard plan signed 
by the end-user, who may also be the ultimate consignee. This 
requirement also applies to exports, reexports, and in-country 
transfers of components or electronic assemblies to upgrade existing 
``computer'' installations in those countries. A sample security 
safeguard plan is posted on BIS's webpage at https://www.bis.doc.gov/
hpcs/SecuritySafeguardPlans.html. In addition, this rule makes 
conforming changes to the table ``Information Collection Requirements 
Under the Paperwork Reduction Act: OMB Control Numbers'' in Supplement 
No. 1 to part

[[Page 20880]]

730 to change the reference to where the safeguard requirements are 
located in the EAR.

Section 750.4(b) Actions Not Included in Processing Time Calculations

    On May 11, 1995, BIS published a proposed rule for the 
simplification of the EAR (60 FR 25270) that contained the Acting 
Secretary of State's determination of December 28, 1993, that five 
categories of multilaterally controlled items would be controlled under 
section 6(j). License applications for certain items would be reviewed 
under the 6(j) procedures. This rule was made final on March 25, 1996 
(61 FR 12714). One category of items subject to the new 6(j) procedure 
was those subject to national security controls, except national 
security controlled digital computers with a Composite Theoretical 
Performance (CTP) of 500 Million Theoretical Operations Per Second 
(MTOPS) or less. At the time, and until 1998, the NS control level for 
computers was 260 MTOPS (then it increased to 2,000 MTOPS). So until 
1998, computers controlled for NS reasons were not subject to 6(j) 
requirements if they were between 260 and 500 MTOPS. Although the NS 
control level for computers was increased several times, this computer 
level in this section was repeatedly overlooked. This rule corrects 
this error by removing the exemption for computers with a CTP of 500 
MTOPS from a Congressional 30-day notification requirement under 
section 6(j) of the Export Administration Act, as amended (EAA), prior 
to the issuance of the license for any digital computers destined to 
the military, police, intelligence or other sensitive end-users located 
in designated terrorist-supporting countries. This exemption has been 
overtaken by technological advancements, i.e., computers controlled for 
NS reasons with a CTP of 500 MTOPS no longer exist today. This rule 
does not change the requirement for Congressional notification for all 
items controlled for national security reasons to end users set forth 
above. Computers classified by ECCN 4A003 are controlled for national 
security reasons when the APP exceeds 0.75 WT, as implemented by this 
rule.

Conforming Changes

    This rule makes the following conforming changes:
     With regard to License Exception CTP being changed to 
License Exception APP:

--------------------------------------------------------------------------------------------------------------------------------------------------------
               EAR citation                                                                Subject matter
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec.   732.4(b)(3)(iii) and (b)(3)(iv)...  Steps regarding License Exceptions.
Sec.   740.7.............................  License Exception CTP.
Sec.   743.1(b)(1).......................  Wassenaar Arrangement special reporting requirements.
Sec.   746.3(c)..........................  License Exceptions for Iraq.
EECN 4A003...............................  License Exception section, License Exception CTP.
ECCN 4D001...............................  License Exception section, License Exception CTP.
ECCN 4E01................................  License Exception section, License Exception CTP.
--------------------------------------------------------------------------------------------------------------------------------------------------------

     With regard to references to the computer metric CTP, 
without reference to a specific MTOPS limit:

--------------------------------------------------------------------------------------------------------------------------------------------------------
               EAR citation                                                                Subject matter
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec.   740.11(a)(4)......................  License Exception GOV.
Sec.   740.11(c)(4)......................  License Exception GOV.
Sec.   743.1(c)(2).......................  Reference to formula for calculating APP.
Sec.   743.2 (c)(7)......................  Information that must be included in the Post Shipment Verification Report.
Supplement No. 1 to part 748, Block 22(b)  Multipurpose Application Instructions.
Supplement No. 2 to part 748, paragraph    Digital Computers, telecommunications, and related equipment.
 (c).
Supp. No. 1 to part 752, (b).............  Instructions for completing form BIS-748P-A.
Sec.   770.2(l)..........................  Interpretation 12: Computers.
ECCN 4A003.c.............................  Electronic Assemblies.
ECCN 4A994 Note 1 to 4A994.c.............  Electronic Assemblies.
ECCN 4D001.b.2...........................  Electronic Assemblies.
ECCN 4E001.b.2...........................  Electronic Assemblies.
--------------------------------------------------------------------------------------------------------------------------------------------------------

     With regard to a change in computer metric changes from 
CTP to APP:

----------------------------------------------------------------------------------------------------------------
          EAR citation                 Subject matter          Prior CTP in MTOPS            New APP in WT
----------------------------------------------------------------------------------------------------------------
Sec.   734.4(a)(1)..............  De minimis eligibility    190,000.................  0.75.
                                   for foreign-made
                                   computers going to
                                   Computer Tier 3
                                   destinations.
Sec.   734.4(a)(1)..............  De minimis eligibility    28,000..................  .002.
                                   for foreign-made
                                   computers going to
                                   Cuba, Iran, Libya,
                                   North Korea, Sudan, and
                                   Syria.
Sec.   740.7(c)(3)(ii)..........  Development and           190,000.................  0.1.
                                   Production technology
                                   and source code
                                   eligible for deemed
                                   exports under License
                                   Exception APP to
                                   foreign nationals of
                                   Tier 1 destinations,
                                   other than the
                                   destinations that are
                                   listed in Sec.
                                   740.7(c)(3)(i).

[[Page 20881]]

 
Sec.   740.7(c)(3)(iii) (new      Use technology and        190,000.................  0.75.
 paragraph).                       source code eligible
                                   for deemed exports
                                   under License Exception
                                   APP to foreign
                                   nationals of Tier 1
                                   destinations, other
                                   than the destinations
                                   that are listed in Sec.
                                     740.7(c)(3)(i).
Sec.   740.7(d)(3)(i)...........  Development and           190,000.................  0.1.
                                   Production technology
                                   and source code
                                   eligible for deemed
                                   exports under License
                                   Exception APP to
                                   foreign nationals of
                                   Tier 3 destinations.
Sec.   740.7(d)(3)(ii) new        Use technology and        190,000.................  0.75.
 paragraph.                        source code eligible
                                   for deemed exports
                                   under License Exception
                                   APP to foreign
                                   nationals of Tier 3
                                   destinations.
740.9(a)(2)(i)(B)(1)............  License Exception TMP,    6,500...................  0.0015.
                                   Tools of Trade, Sudan,
                                   eligible computers
                                   under 4A994.
Sec.   740.19(a)(2)(iv).........  License Exception USPL,   12,000..................  0.003.
                                   eligible AT controlled
                                   computers (4A994) to
                                   U.S. persons in Libya.
Supp. No. 2 to part 742(c)(24)..  Heading for digital       6.......................  0.00001.
                                   computer license policy
                                   destined to designated
                                   terrorist supporting
                                   countries.
Supp. No. 2 to part               N. Korea license policy   2,000...................  0.0004.
 742(c)(24)(iv)(A) and (B).        for digital computers.
Sec.   743.1(c)(2)..............  Wassenaar Arrangement     190,000.................  0.1.
                                   Special Reporting
                                   Requirements for
                                   computer technology and
                                   software for the
                                   development and
                                   production of computers.
Sec.   743.2 (new), moved from    Post Shipment             190,000.................  0.75.
 742.12(b)(3)(iv).                 Verification Reporting
                                   and recordkeeping for
                                   Computer Tier 3
                                   destinations.
750.4(b)(6)(ii)(A)..............  Digital Computers not     Less than 500...........  Removed.
                                   subject to a
                                   Congressional 500
                                   notification
                                   requirement when the
                                   issuance of the license
                                   for any military,
                                   police, intelligence or
                                   other sensitive end-
                                   user in designated
                                   terrorist-supporting
                                   country.
ECCN 4A003......................  License Requirement       6 and 190,000...........  0.00001 and 0.75.
                                   section, AT controls
                                   (refer to ECCN 4A994).
ECCN 4A003......................  License Requirement       190,000.................  Removed.
                                   section, XP controls.
ECCN 4A003......................  Note in License           190,000.................  0.75 (two times).
                                   Requirement section.
ECCN 4A994......................  ECCN 4A994.b............  6.......................  0.00001.
ECCN 4A994......................  ECCN 4A994.f equipment    8.5.....................  0.00001.
                                   for signal processing
                                   or image enhancement.
ECCN 4D001......................  License Exception         190,000.................  0.1.
                                   section, TSR.
ECCN 4E001......................  License Exception         190,000.................  0.1.
                                   section, TSR.
----------------------------------------------------------------------------------------------------------------

     With regard to the placement of the CTP formula:
    Because BIS has decided to move the formula for CTP from the end of 
Category 4 to the end of Category 3, this rule revises the definition 
of ``Composite Theoretical Performance'' (``CTP'') to remove references 
to Category 4, and revises the information about where the formula for 
CTP may be found. The formula for CTP is no longer necessary in 
Category 4, because CTP has been replaced by APP throughout Category 4. 
However, the formula for CTP is still necessary for Category 3, because 
it is used in 3A991 (License Requirement Note and 3A991.a.1), 3E001 
(License Exception CIV), and 3E002 (Heading and License Exception CIV).
     With regard to ``computing elements'':
    This rule implements an amendment to 4A003.c to revise the term 
``computing elements'' (``CE'')'' to read ``processors.'' There are two 
conforming changes to this revision in Sec.  740.11(a)(4) and Sec.  
740.11(c)(4) under License Exception GOV.

Category 3--Electronics

    This rule moves the technical note on how to calculate the 
Composite Theoretical Performance (CTP) from the end of Category 4 to 
the end of Category 3, because the implementation of Adjusted Peak 
Performance removed all references to CTP in Category 4 and CTP only 
remains in Category 3.
    ECCN 3A991 is amended by revising License Requirement Note 1 to: 
(1) Spell out the acronym CTP, and (2) Add a reference about where to 
find information on how to calculate CTP.
    ECCNs 3E001 and 3E002 are amended by revising License Exception CIV 
text to spell out the acronym CTP, for clarification and to indicate 
that Composite Theoretical Performance is a defined term in section 
772.1.

Implementation of Wassenaar Arrangement Agreements

    The following revisions are consistent with agreements made by the 
Wassenaar Arrangement to replace the CTP formula for calculating 
composite theoretical performance with the APP formula:

Category 4--Computers

    Category 4 is amended by adding the formula for Adjusted Peak 
Performance (APP) after EAR99.
    ECCN 4A001 is amended by:
    a. Removing High Performance Computer (XP) controls from the 
License Requirements section for reasons set forth above in this 
background section of the rule; and
    b. Adding in the License Requirement Note a reference to the 
paragraph (4A001.a.2) that triggers the Wassenaar reporting requirement 
in Sec.  743.1 of the EAR.
    ECCN 4A003 is amended by:
    a. Removing the Missile Technology (MT) and High Performance 
Computer (XP) controls paragraph in the License Requirement section for 
reasons set forth above in the background section of this rule;
    b. Revising the parameter and value in 4A003.b from CTP to APP and 
from 190,000 MTOPS to 0.75 WT; and
    c. Revising the text and parameter in 4A003.c (electronic 
assemblies) from ``computing elements (CE)'' to ``processors.''
    ECCN 4A994 is amended by:

[[Page 20882]]

    a. Revising the parameter and value in 4A994.b from CTP to APP and 
from 6 MTOPS to 0.00001 WT;
    b. Replacing the reference to CTP with APP in Note 1 to 4A994.c; 
and
    c. Revising the parameter and value in 4A994.f from CTP to APP and 
from 8.5 MTOPS to 0.00001 WT, because there is little difference 
between the APP in 4A994.b and this paragraph and BIS believes that it 
is easier to comply with regulations when numbers are harmonized.
    ECCN 4D001 is amended by revising:
    a. Removing the High Performance Computer (XP) controls paragraph 
in the License Requirement section for reasons set forth above in the 
background section of this rule;
    b. Revising the parameter and value in 4D001.b.1 from CTP to APP 
and from 75,000 MTOPS to 0.04 WT; and
    c. Revising the text and parameter in 4D001.b.2 from ``computing 
elements (CE)'' to ``processors'' and the parameter CTP to APP.
    ECCN 4D002 is amended by removing the High Performance Computer 
(XP) controls paragraph in the License Requirement section for reasons 
set forth above in the background section of this rule.
    ECCN 4E001 is amended by revising:
    a. Removing the High Performance Computer (XP) controls paragraph 
in the License Requirement section for reasons set forth above in the 
background section of this rule;
    b. Revising the parameter and value in 4E001.b.1 from CTP to APP 
and from 75,000 MTOPS to 0.04 WT; and
    c. Revising the text and parameter in 4E001.b.2 from ``computing 
elements (CE)'' to ``processors'' and the parameter CTP to APP.

Definitions

    This rule amends 772.1, Definitions of Terms as Used in the Export 
Administration Regulations (EAR) by adding the definition of ``Adjusted 
Peak Performance'' (``APP'').

Effect on License Applications

    BIS expects that the implementation of the new computer metric 
Adjusted Peak Performance (APP) will decrease the number of high 
performance computer (ECCN 4A003.b) license applications received by 
BIS by about 90 percent (i.e., 6 fewer applications projected) over the 
next 6 months. The new licensing threshold provides a relaxation of HPC 
export controls because all computers that are equal to or below 
190,000 MTOPS are also below 0.75 WT, while certain computers with 
performance currently measured as exceeding 190,000 MTOPS do not exceed 
0.75 WT. The amount of relaxation that may occur for any particular 
family of computers will depend on the technical specifics of the 
system architecture and the processor used in the family.

Other Revisions

    This rule also makes an editorial correction to Sec.  770.2(l)(2), 
Interpretation 12: Computers by removing reference to 4A003.d and 
4A003.f, which are currently reserved and not in use.
    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 2, 2005, 
70 FR 45273 (August 5, 2005), 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 three collections of information subject to the PRA. The first 
collection 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 second collection 
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. The third collection has been approved by OMB under control 
number 0694-0073, ``Export Controls of High Performance Computers,'' 
and carries a burden hour estimate of 78 hours for a manual or 
electronic submission. This rule is expected to result in an immediate 
decrease in license applications, and in associated reporting and 
support documentation requirements, for high performance computers; 
however, this decrease may be reduced over time as higher performance 
systems are marketed. 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.

List of Subjects

15 CFR Part 730

    Administrative practice and procedure, Advisory committees, 
Exports, Reporting and recordkeeping requirements, Strategic and 
critical materials.

15 CFR Parts 732, 740, 748, 750, and 752

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

15 CFR Part 734

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

15 CFR Part 742

    Exports, Terrorism.

[[Page 20883]]

15 CFR Part 743

    Administrative practice and procedure, Reporting and recordkeeping 
requirements.

15 CFR Parts 746 and 774

    Exports, Reporting and recordkeeping requirements.

15 CFR Part 762

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

15 CFR Parts 738, 770 and 772

    Exports.


0
Accordingly, parts 730, 732, 734, 738, 740, 742, 743, 746, 748, 750, 
752, 762, 770, 772 and 774 of the Export Administration Regulations (15 
CFR parts 730-799) are amended as follows:

PART 730--[AMENDED]

0
1. The authority citation for part 730 is revised 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. 2151 note, Pub. L. 108-175; 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. 11912, 41 
FR 15825, 3 CFR, 1976 Comp., p. 114; E.O. 12002, 42 FR 35623, 3 CFR, 
1977 Comp., p. 133; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 
179; E.O. 12214, 45 FR 29783, 3 CFR, 1980 Comp., p. 256; E.O. 12851, 
58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12854, 58 FR 36587, 3 
CFR, 1993 Comp., p. 179; E.O. 12918, 59 FR 28205, 3 CFR, 1994 Comp., 
p. 899; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 
12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; E.O. 12981, 60 FR 
62981, 3 CFR, 1995 Comp., p. 419; 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. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 208; E.O. 13222, 
66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 
CFR, 2001 Comp., p. 786; E.O. 13338, 69 FR 26751, May 13, 2004; 
Notice of August 2, 2005, 70 FR 45273 (August 5, 2005); Notice of 
October 25, 2005, 70 FR 62027 (October 27, 2005).


0
2. Supplement No. 1 to part 730 is amended by revising ``Sec.  742.12, 
Supplement No. 3 to part 742, and Sec.  762.2(b)'' to read ``Supplement 
No. 2 to part 748, paragraph (c)(2), and Sec.  762.2(b)'' in the third 
column ``Reference in the EAR'' of row ``0694-0073''.

PART 732--[AMENDED]

0
3. The authority citation for part 732 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, 3 CFR, 2001 Comp., p. 783; Notice of August 2, 2005, 70 FR 
45273 (August 5, 2005).


Sec.  732.4  [Amended]

0
4. Section 732.4 is amended by
0
a. Revising the phrase ``List-based License Exceptions (LVS, GBS, CIV, 
TSR, and CTP)'' to read ``List-based License Exceptions (LVS, GBS, CIV, 
TSR, and APP) in paragraph (b)(3)(iii); and
0
b. Revising the phrase ``under License Exceptions GBS, CIV, LVS, CTP, 
TSR, or GOV,'' to read ``under License Exceptions GBS, CIV, LVS, APP, 
TSR, or GOV,'' in paragraph (b)(3)(iv).

PART 734--[AMENDED]

0
1. The authority citation for 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, 3 CFR, 2001 Comp., p. 
783; Notice of November 4, 2004, 69 FR 64637 (November 8, 2004); 
Notice of August 2, 2005, 70 FR 45273 (August 5, 2005).


0
2. Section 734.4 is amended by revising paragraph (a)(1) to read as 
follows:


Sec.  734.4  De minimis U.S. content.

    (a) Items for which there is no de minimis level. (1) There is no 
de minimis level for the export from a foreign country of a foreign-
made computer with an Adjusted Peak Performance (APP) exceeding 0.75 
Weighted TeraFLOPS (WT) containing U.S.-origin controlled 
semiconductors (other than memory circuits) classified under ECCN 3A001 
to Computer Tier 3; or exceeding an APP of 0.002 WT containing U.S.-
origin controlled semiconductors (other than memory circuits) 
classified under ECCN 3A001 or high speed interconnect devices (ECCN 
4A994.j) to Cuba, Iran, Libya, North Korea, Sudan, and Syria.
* * * * *

PART 738--[AMENDED]

0
1. The authority citation for part 738 is revised 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 2, 2005, 70 FR 45273 (August 5, 2005).


Sec.  738.2  [Amended]

0
2. Section 738.2 is amended by removing the phrase ``XP Computers'' 
from the list at the end of paragraph (d)(2)(i)(A).

PART 740--[AMENDED]

0
3. The authority citation for 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 2, 2005, 70 FR 45273 (August 5, 2005).


0
4. Section 740.7 is revised to read as follows:


Sec.  740.7  Computers (APP).

    (a) Scope. (1) Commodities. License Exception APP authorizes 
exports and reexports of computers, including ``electronic assemblies'' 
and specially designed components therefor controlled by ECCN 4A003, 
except ECCN 4A003.e (equipment performing analog-to-digital conversions 
exceeding the limits in ECCN 3A001.a.5.a), 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 APP eligibility, use the APP parameter to 
the exclusion of other technical parameters in ECCN 4A003.
    (2) Technology and software. License Exception APP authorizes 
exports of technology and software controlled by ECCNs 4D001 and 4E001 
specially designed or modified for the ``development'', ``production'', 
or ``use'' of computers, including ``electronic assemblies'' and 
specially designed components therefor classified in ECCN 4A003, except 
ECCN 4A003.e (equipment performing analog-to-digital conversions 
exceeding the limits in ECCN 3A001.a.5.a), to Computer Tier countries 
as provided by this section. Technology for computers controlled for 
missile technology (MT) reasons are not eligible for License Exception 
APP.
    (b) Restrictions. (1) Related equipment controlled under ECCN 
4A003.g may not be exported or reexported under this License Exception 
when exported or reexported separately from eligible

[[Page 20884]]

computers authorized under this License Exception.
    (2) Access and release restrictions. (i) Computers and software. 
Computers and software eligible for License Exception APP may not be 
accessed either physically or computationally by nationals of Cuba, 
Iran, 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.
    (ii) Technology and source code. Technology and source code 
eligible for License Exception APP may not be released to nationals of 
Cuba, Iran, Libya, North Korea, Sudan, or Syria.
    (3) Computers and software eligible for License Exception APP may 
not be reexported or transferred (in country) without prior 
authorization from BIS, 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 (b)(5) 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 APP beyond the 
eligibility limit allowed to your country of destination.
    (5) License Exception APP does not authorize exports and reexports 
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. Reexports and transfers (in country) to these end-users and end-
uses in eligible countries are strictly prohibited without prior 
authorization.
    (6) Foreign nationals in an expired visa status are not eligible to 
receive deemed exports of technology or source code under this License 
Exception. It is the responsibility of the exporter to ensure that, in 
the case of deemed exports, the foreign national maintains a valid U.S. 
visa, if required to hold a visa from the United States.
    (c) Computer Tier 1 destinations. (1) Eligible destinations. The 
destinations that are eligible to receive exports and reexports under 
paragraph (c) of this section include: Antigua and Barbuda, Argentina, 
Aruba, Australia, Austria, Bahamas (The), Bangladesh, Barbados, 
Belgium, Belize, Benin, Bhutan, Bolivia, Botswana, Brazil, Brunei, 
Bulgaria, Burkina Faso, Burma, Burundi, Cameroon, Cape Verde, Central 
African Republic, Chad, Chile, Colombia, Congo (Democratic Republic of 
the), Congo (Republic of the), Costa Rica, Cote d'Ivoire, Cyprus, Czech 
Republic, Denmark, Dominica, Dominican Republic, East Timor, Ecuador, 
El Salvador, Equatorial Guinea, Eritrea, Estonia, Ethiopia, Fiji, 
Finland, France, Gabon, 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), Latvia, 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, 
Netherlands Antilles, 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 the Grenadines, Sao Tome & Principe, Samoa, 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, Zambia, and Zimbabwe.
    (2) Eligible commodities. All computers, including electronic 
assemblies and specially designed components therefore are eligible for 
export or reexport under License Exception APP to Tier 1 destinations, 
subject to the restrictions in paragraph (b) of this section.
    (3) Eligible technology and software. (i) Technology and software 
described in paragraph (a)(2) of this section for computers of 
unlimited APP are eligible for export or reexport under License 
Exception APP to: Australia, Austria, Belgium, Canada, Denmark, 
Finland, France, Germany, Greece, Ireland, Italy, Japan, Luxembourg, 
Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, 
Turkey, or the United Kingdom; and
    (ii) ``Development'' and ``production'' technology and source code 
described in paragraph (a)(2) of this section for computers with a APP 
less than or equal to 0.1 Weighted TeraFLOPS (WT) are eligible for 
deemed exports under License Exception APP to foreign nationals of Tier 
1 destinations, other than the destinations that are listed in 
paragraph (c)(3)(i) of this section, subject to the restrictions in 
paragraph (b) of this section.
    (iii) ``Use'' technology and source code described in paragraph 
(a)(2) of this section for computers with a APP less than or equal to 
0.75 WT are eligible for deemed exports under License Exception APP to 
foreign nationals of Tier 1 destinations, other than the destinations 
that are listed in paragraph (c)(3)(i) of this section, subject to the 
restrictions in paragraph (b) of this section.
    (d) Computer Tier 3 destinations. (1) Eligible destinations. 
Eligible destinations under paragraph (d) of this section are: 
Afghanistan, Albania, Algeria, Andorra, Angola, Armenia, Azerbaijan, 
Bahrain, Belarus, Bosnia & Herzegovina, Cambodia, China (People's 
Republic of), Comoros, Croatia, Djibouti, Egypt, Georgia, India, Iraq, 
Israel, Jordan, Kazakhstan, Kuwait, Kyrgyzstan, Laos, Lebanon, Macau, 
Macedonia (The Former Yugoslav Republic of), Mauritania, Moldova, 
Mongolia, Morocco, Oman, Pakistan, Qatar, Russia, Serbia and 
Montenegro, Saudi Arabia, Tajikistan, Tunisia, Turkmenistan, Ukraine, 
United Arab Emirates, Uzbekistan, Vanuatu, Vietnam, and Yemen.
    (2) Eligible commodities. None.
    (3) Eligible technology and source code. (i) ``Development,'' and 
``production'' technology and source code described in paragraph (a)(2) 
of this section for computers with a APP less than or equal to 0.1 
Weighted TeraFLOPS (WT) are eligible for deemed exports under License 
Exception APP to foreign nationals of Tier 3 destinations as described 
in paragraph (d)(1) of this section, subject to the restrictions in 
paragraph (b) and the provisions of paragraph (d)(4) of this section.
    (ii) ``Use'' technology and source code described in paragraph 
(a)(2) of this section for computers with an APP less than or equal to 
0.75 WT are eligible for deemed exports under License Exception APP to 
foreign nationals of Tier 3 destinations as described in paragraph 
(d)(1) of this section, subject to the restrictions in paragraph (b) 
and the provisions of paragraph (d)(4) of this section.
    (4) Foreign National Review (FNR) requirement for deemed exports. 
(i) Submission requirement. Prior to disclosing eligible technology or 
source code to a foreign national of a Computer Tier 3 country that is 
not also a country listed in Country Group B in Supplement No. 1 to 
part 740 of the EAR under this License Exception, you must submit a 
Foreign National Review

[[Page 20885]]

(FNR) request to BIS, as required under Sec.  748.8(s) of the EAR. Your 
FNR request must include information about the foreign national 
required under Sec.  748.8(t) of the EAR and set forth in Supplement 
No. 2 of part 748 of the EAR.
    (ii) Confirmation of eligibility. You may not use License Exception 
APP, until you have obtained confirmation of eligibility by calling the 
System for Tracking Export License Applications (STELA), see Sec.  
750.5 for how to use STELA, or electronically from the Simplified 
Network Application Procedure (SNAP), see https://www.bis.doc.gov/SNAP/
index.htm for more information about SNAP.
    (iii) Action by BIS. Within nine business days of the registration 
of the FNR request, BIS will electronically refer the FNR request for 
interagency review, or if necessary return the FNR request without 
action (e.g., if the information provided is incomplete). Processing 
time starts at the point at which the notification is registered into 
BIS's electronic system.
    (iv) Review by other departments or agencies. The Departments of 
Defense, State, Energy, and other agencies, as appropriate, may review 
the FNR request. Within 30 calendar days of receipt of the BIS 
referral, the reviewing agency will provide BIS with a recommendation 
either to approve or deny the FNR request. A reviewing agency that 
fails to provide a recommendation within 30 days shall be deemed to 
have no objection to the final decision of BIS.
    (v) Action on the FNR Request. After the interagency review period, 
BIS will promptly notify the applicant regarding the FNR request, i.e., 
whether the FNR request is approved, denied, or more time is needed to 
consider the request.
    (e) Reporting requirements. See Sec.  743.1 of the EAR for 
reporting requirements of certain items under License Exception APP.

0
5. Section 740.9 is amended by revising the phrase ``Personal computers 
(including laptops) controlled under ECCN 4A994 that do not exceed a 
composite theoretical performance of 6,500 millions of theoretical 
operations per second'' to read ``Personal computers (including 
laptops) controlled under ECCN 4A994 that do not an exceed Adjusted 
Peak Performance (APP) of 0.0015 Weighted TeraFLOPS (WT)'' in paragraph 
(a)(2)(i)(B)(1).

0
6. Section 740.11 is amended by revising paragraphs (a)(4) and (c)(4) 
to read as follows:


Sec.  740.11  Governments, international organizations, and 
international inspections under the Chemical Weapons Convention (GOV).

* * * * *
    (a) * * *
    (4) Restrictions. Nationals of countries in Country Group E:1 may 
not physically or computationally access computers that have been 
enhanced by ``electronic assemblies'', which have been exported or 
reexported under License Exception GOV and have been used to enhance 
such computers by aggregation of processors so that the APP of the 
aggregation exceeds the APP parameter set forth in ECCN 4A003.b. of the 
Commerce Control List in Supplement No. 1 to part 774 of the EAR, 
without prior authorization from the Bureau of Industry and Security.
* * * * *
    (c) * * *
    (4) Restrictions. Nationals of countries in Country Group E:1 may 
not physically or computationally access computers that have been 
enhanced by ``electronic assemblies'', which have been exported or 
reexported under License Exception GOV and have been used to enhance 
such computers by aggregation of processors so that the APP of the 
aggregation exceeds the APP parameter set forth in ECCN 4A003.b. of the 
Commerce Control List in Supplement No. 1 to part 774 of the EAR, 
without prior authorization from the Bureau of Industry and Security.
* * * * *


Sec.  740.19  [Amended]

0
7. Section 740.19 is amended by revising the sentence ``4A994, for 
items with CTP levels up to12,000 MTOPS; and'' to read ``4A994, for 
items with an Adjusted Peak Performance (APP) equal to or less than 
0.003 Weighted TeraFLOPS; and'' in paragraph (a)(2)(iv).

PART 742--[AMENDED]

0
8. The authority citation for part 742 continues 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, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; Sec. 1503, 
Pub. L. 108-11,117 Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR, 1978 
Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; 
E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 
FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 
2001 Comp., p. 783; Presidential Determination 2003-23 of May 7, 
2003, 68 FR 26459, May 16, 2003; Notice of November 4, 2004, 69 FR 
64637 (November 8, 2004); Notice of August 2, 2005, 70 FR 45273 
(August 5, 2005).


Sec.  742.12  [Removed]

0
9. Section 742.12 is removed and reserved.


Sec.  742.19  [Removed]

0
10. Section 742.19 is amended by revising the sentence ``Digital 
computers with a CTP above 2000.'' to read `