[Code of Federal Regulations]
[Title 15, Volume 2]
[Revised as of January 1, 2004]
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 INDUSTRY AND SECURITY, 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 190,000 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.
    (b) There is no de minimis level for foreign-made items that 
incorporate U.S.-origin items controlled for ``EI'' reasons under ECCN 
5A002, 5D002 or 5E002 on the Commerce Control List (Supplement No. 1 to 
part 774 the EAR). However, exporters may, as part of an encryption 
review request, ask that software controlled for EI reasons 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 U.S. national security interests 
into account. Other encryption items controlled for NS or AT reasons 
under ECCNs 5D002, 5A992, 5D992, and 5E992 are not eligible for de 
minimis treatment, unless exporters have complied with the applicable 
notification or review requirements described in Sec.  740.13(e), Sec.  
742.15(b)(1), and Sec.  742.15(b)(2) of the EAR. Encryption items 
controlled by ECCN 5A992, 5D992, or 5E992 and described in Sec.  
742.15(b)(3) of the EAR are not subject to these notification or review 
requirements.
    (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.

[[Page 222]]

    (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-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; 67 FR 
10610, 10613, Mar. 8, 2002; 67 FR 38860, June 6, 2002; 68 FR 35784, June 
17, 2003]