[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: 15CFR742.12]

[Page 301-304]
 
                  TITLE 15--COMMERCE AND FOREIGN TRADE
 
  CHAPTER VII--BUREAU OF INDUSTRY AND SECURITY, DEPARTMENT OF COMMERCE
 
PART 742_CONTROL POLICY_CCL BASED CONTROLS--Table of Contents
 
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.

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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.
    (2) In recognition of the strategic and proliferation significance 
of high performance computers, a license is required for the export or 
reexport of high performance computers to destinations, end-users, and 
end-uses, as specified in this section and on the CCL. These license 
requirements supplement requirements that apply for other control 
reasons, such as nuclear nonproliferation provided in section 742.3 of 
the EAR. The license requirements described in this section 742.12 are 
not reflected on the Country Chart (Supplement No. 1 to part 738 of the 
EAR). Three Computer Country Tiers have been established for the 
purposes of these controls. Countries included in Computer Tiers 1 and 3 
are listed in License Exception CTP in section 740.7 of the EAR. As of 
January 19, 2001 there is no longer a Computer Tier 2, and countries 
that were in Tier 2 are incorporated into Computer Tier 1. Computer Tier 
4 consists of Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria.
    (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 BIS and must contain the information as 
described in Sec.  743.1 of the EAR.
    (b) Licensing policy. Licensing policies described in this section 
vary according to the country of destination, and the end-use or end-
user involved in the transaction. Note that in addition, license 
applications for items covered by Sec.  742.12 will also be reviewed 
under the nuclear nonproliferation licensing policy in Sec.  742.3(b). 
In certain cases, licenses may be subject to safeguard conditions. The 
specific conditions that may be imposed by BIS will depend on the 
country of destination, and the end-use or end-user of the export. BIS 
may also require end-use certification which, in appropriate cases, is 
certified by the government of the importing country. The range of 
possible safeguard conditions and related information are provided in 
Supplement No. 3 to part 742.
    (1) Computer Tier 1--(i) License requirement. No license is required 
under this Sec.  742.12 for exports or reexports of computers to and 
among countries listed in Computer Tier 1, for consumption in such 
countries or other disposition in accordance with the EAR.
    (ii) Licensing policy. A license is not required under this Sec.  
742.12.
    (2) [Reserved]
    (3) Computer Tier 3. (i) License requirement. (A) A license is 
required to export or reexport computers to countries in Computer Tier 3 
to nuclear, chemical, biological, or missile end-users and end-uses and 
military end-users and end-uses subject to license requirements under 
Sec.  744.2, Sec.  744.3, Sec.  744.4, Sec.  744.5, and Sec.  744.12 of 
the EAR in Computer Tier 3 countries.
    (B) A license is required to export or reexport computers with a CTP 
greater than 190,000 MTOPS to a country in Computer Tier 3.

    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.)

    (ii) Licensing policy for nuclear, chemical, biological, or missile 
end-users and end-uses and military end-users and end-uses. License 
applications for exports and reexports to nuclear, chemical, biological, 
or missile end-users and end-

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uses and military end-users and end-uses subject to license requirements 
under Sec.  744.2, Sec.  744.3, Sec.  744.4, Sec.  744.5, and Sec.  
744.12 of the EAR in countries in Computer Tier 3 will be reviewed on a 
case-by-case basis using the following criteria:
    (A) The presence and activities of countries and end-users of 
national security and proliferation concern and the relationships that 
exist between the government of the importing country and such countries 
and end-users;
    (B) The ultimate consignee's participation in, or support of, any of 
the following:
    (1) Activities that involve national security concerns; or
    (2) Nuclear, chemical, biological or missile proliferation 
activities described in part 744 of the EAR;
    (C) The extent to which the importing country is involved in 
nuclear, chemical, biological, or missile proliferation activities 
described in part 744 of the EAR;
    (D) The end-user, whether the end-use is single-purpose or multiple-
purpose.
    (iii) Licensing policy for other end-users and end-uses. License 
applications for exports and reexports to other end-uses and end-users 
located in Computer Tier 3 countries will generally be approved, except 
there is a presumption of denial for all applications for exports and 
reexports of high performance computers destined to Indian and Pakistani 
entities determined to be involved in nuclear, missile, or military 
activities included in Supplement No. 4 to part 744 (Entity List). All 
license applications for exports and reexports to India and Pakistan not 
meeting these criteria for presumption of denial will be considered on a 
case-by-case basis under other licensing policies set forth in the EAR 
applicable to such computers.
    (iv) Post-shipment verification. This section outlines special post-
shipment reporting requirements for exporters of certain computers to 
destinations in Computer Tier 3. Post-shipment reports must be submitted 
in accordance with the provisions of this paragraph (b)(3)(iv), and all 
relevant records of such exports must be kept in accordance with part 
762 of the EAR.
    (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 190,000 
MTOPS.
    (B) Information that must be included in each post-shipment report. 
No later than the last day of the month following the month in which the 
export takes place, the exporter must submit the following information 
to BIS at the address listed in paragraph (b)(3)(iv)(C) of this section:
    (1) Exporter name, address, and telephone number;
    (2) License number;
    (3) Date of export;
    (4) End-user name, point of contact, address, telephone number;
    (5) Carrier;
    (6) Air waybill or bill of lading number;
    (7) Commodity description, quantities--listed by model numbers, 
serial numbers, and CTP level in MTOPS; and
    (8) Certification line for exporters to sign and date. The exporter 
must certify that the information contained in the report is accurate to 
the best of his or her knowledge.

    Note to paragraph (b)(3)(iv)(B) of this section:
    Exporters are required to provide the PRC End-User Certificate 
Number to BIS as part of their post-shipment report (see paragraph 
(b)(3)(iv) of this section). When providing the PRC End-User Certificate 
Number to BIS, you must identify the transaction in the post shipment 
report to which that PRC End-User Certificate Number applies.

    (C) Mailing address. A copy of the post-shipment report[s] required 
under paragraph (b)(3)(iv)(A) of this section shall be delivered to one 
of the following addresses. Note that BIS will not accept reports sent 
C.O.D.
    (1) For deliveries by U.S. postal service: U.S. Department of 
Commerce, Bureau of Industry and Security, P.O. Box 273, Washington, 
D.C. 20044, Attn: Office of Enforcement Analysis HPC Team, Room 4065.
    (2) For courier deliveries: U.S. Department of Commerce, Office of 
Enforcement Analysis HPC Team, 14th Street and Constitution Ave., NW, 
Room 4065, Washington, DC 20230.

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    (4) Computer Tier 4--(i) License requirement. A license is required 
to export or reexport any items covered by this section to a country in 
Country Tier 4.
    (ii) Licensing policy. The licensing policies for countries in 
Computer Tier 4 are the same as described in the following EAR sections: 
for Sudan see Sec.  742.10(b); for Syria see Sec.  742.9(b); for Cuba 
see Sec.  746.2; for Iran see Sec.  746.7; for Iraq see Sec.  746.3; for 
Libya see Sec.  746.4; and for North Korea see Sec.  742.19(b).
    (c) Contract sanctity. Contract sanctity provisions are not 
available for license applications involving exports and reexports of 
high performance computers.
    (d) High performance computer regime. The United States and Japan 
participate in a high performance computer regime. The regime provides 
uniform and effective safeguards to protect high performance computers 
from unauthorized destinations, end-users and end-uses.

[61 FR 12786, Mar. 25, 1996, as amended at 61 FR 64283, Dec. 4, 1996; 63 
FR 2458, Jan. 15, 1998; 63 FR 5451, Feb. 3, 1998; 63 FR 63143, Nov. 12, 
1998; 63 FR 64324, Nov. 19, 1998; 64 FR 2431, Jan. 14, 1999; 64 FR 
42012, Aug. 3, 1999; 65 FR 12922, Mar. 10, 2000; 65 FR 38151, June 19, 
2000; 65 FR 60855, Oct. 13, 2000; 66 FR 5446, Jan. 19, 2001; 67 FR 
10615, 10610, Mar. 8, 2002; 67 FR 13567, Mar. 25, 2002]