[Code of Federal Regulations] [Title 15, Volume 2] [Revised as of January 1, 2002] From the U.S. Government Printing Office via GPO Access [CITE: 15CFR734.4] [Page 221-222] TITLE 15--COMMERCE AND FOREIGN TRADE CHAPTER VII--BUREAU OF EXPORT ADMINISTRATION, DEPARTMENT OF COMMERCE PART 734--SCOPE OF THE EXPORT ADMINISTRATION REGULATIONS--Table of Contents 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 28,000 MTOPS containing U.S.-origin controlled semiconductors (other than memory circuits) classified under ECCN 3A001 or high speed interconnect devices (ECCN 4A003.g) to Computer Tier 3 and 4 countries described in Sec. 742.12 of the EAR. (b) There is no de minimis level for items controlled for EI reasons under ECCNs 5A002, 5D002 and 5E002 absent written authorization from BXA. Exporters may, as part of a classification request, ask that software controlled under ECCN 5D002 and eligible for export under the ``retail'' or ``source code'' provisions of license exception ENC, and parts and components controlled under ECCN 5A002, be made eligible for de minimis treatment. The review of de minimis eligibility will take into account national security interests. (c) Except as provided in paragraph (a) and (b) of this section for certain computers and items controlled for EI reasons, the following reexports are not subject to the EAR when made to either an embargoed country listed in part 746 of the EAR or to a terrorist-supporting country listed in Country Group E:1 (see Supplement No. 1 to part 740 of the EAR): (1) Reexports of a foreign-made commodity incorporating controlled U.S.-origin commodities valued at 10% or less of the total value of the foreign-made commodity; (2) Reexports of foreign-made software incorporating controlled U.S.-origin software valued at 10% or less of the total value of the foreign-made software; or (3) Reexports of foreign technology commingled with or drawn from controlled U.S.-origin technology valued at 10% or less of the total value of the foreign technology. (d) Except as provided in paragraph (a) of this section for certain computers, for all other countries not included in paragraph (b) of this section the following reexports are not subject to the EAR: (1) Reexports of a foreign-made commodity incorporating controlled U.S.-origin commodities valued at 25% or less of the total value of the foreign-made commodity; (2) Reexports of foreign-made software incorporating controlled U.S.-origin software valued at 25% or less of the total value of the foreign-made software; or (3) Reexports of foreign technology commingled with or drawn from controlled U.S.-origin technology valued at 25% or less of the total value of the foreign technology. (e) For purposes of determining de minimis levels, technology and source code used to design or produce foreign- [[Page 222]] made commodities or software are not considered to be incorporated into such foreign-made commodities or software. Commodities subject only to short supply controls are not included in calculating U.S. content. (f) You are responsible for making the necessary calculations to determine whether the de minimis provisions apply to your situation. See Supplement No. 2 to part 734 for guidance regarding calculation of U.S. controlled content. (g) See Sec. 770.3 of the EAR for principles that apply to commingled U.S.-origin technology and software. (h) Notwithstanding the provisions of paragraphs (c) and (d) of this section, U.S.-origin technology controlled by ECCN 9E003a.1 through a.12, and .f, and related controls, and encryption software controlled for ``EI'' reasons under ECCN 5D002 or encryption technology controlled for ``EI'' reasons under ECCN 5E002 do not lose their U.S.-origin when redrawn, used, consulted, or otherwise commingled abroad in any respect with other software or technology of any other origin. Therefore, any subsequent or similar software or technology prepared or engineered abroad for the design, construction, operation, or maintenance of any plant or equipment, or part thereof, which is based on or uses any such U.S.-origin software or technology is subject to the EAR. [61 FR 12746, Mar. 25, 1996, as amended at 61 FR 54543, Oct. 21, 1996; 61 FR 65464, Dec. 13, 1996; 61 FR 68578, Dec. 30, 1996; 62 FR 25456, May 9, 1997; 63 FR 50520, Sept. 22, 1998; 64 FR 13339, Mar. 18, 1999; 64 FR 42011, Aug. 3, 1999; 65 FR 2496, Jan. 14, 2000; 65 FR 60854, Oct. 13, 2000; 65 FR 62604, Oct. 19, 2000; 66 FR 42109, Aug. 10, 2001]