Billing Code: 3510-33-P

DEPARTMENT OF COMMERCE

Bureau of Export Administration

15 CFR Parts 740 and 742

[Docket No. 980918239-8239-01]

RIN: 0694-AB78

Exports of High Performance Computers; Post-shipment Verification Reporting Procedures

AGENCY: Bureau of Export Administration, Commerce

ACTION: Final rule.

SUMMARY: The Bureau of Export Administration (BXA) is amending the Export Administration Regulations (EAR)(15 CFR parts 730-799) by revising the requirements for exports of high performance computers. This rule revises post-shipment verification (PSV) reporting procedures originally implemented as a result of the National Defense Authorization Act (NDAA) for fiscal year 1998 (P.L. 105-85, 111 Stat. 1629).

DATES: This rule is effective (DATE OF PUBLICATION).

FOR FURTHER INFORMATION CONTACT: William Arvin, Bureau of Export Administration, Telephone: (202) 482-5775.

SUPPLEMENTARY INFORMATION:

Background:

The National Defense Authorization Act (NDAA) for Fiscal Year 1998 contained provisions regarding exports and reexports of high performance computers. The NDAA established requirements for advance notification of exports and reexports of high performance computers and post-shipment verifications of such exports. On February 3, 1998, BXA published in the Federal Register a rule amending the EAR to implement these provisions (63 FR 5448). This rule revises the post-shipment verification reporting procedures.

To address the volume of post-shipment verifications (PSVs) generated by the NDAA on high performance computer exports, BXA's Export Enforcement has created the High Performance Computer (HPC) Team. This rule directs PSV report submission to the HPC team. Rather than submit PSV reports within 30 days of export, as was previously required, exporters may now submit the reports no later than the last day of the month following the month in which the export took place. As part of the commodity description, reports must specify model number, serial number, and composite theoretical performance (CTP) in millions of theoretical operations per second (MTOPS) for each item. Exporters may no longer submit reports by facsimile.

Although the Export Administration Act (EAA) expired on August 20, 1994, the President invoked the International Emergency Economic Powers Act and continued in effect, to the extent permitted by law, the provisions of the EAA and the EAR in Executive Order 12924 of August 19, 1994, as extended by the President's notices of August 15, 1995 (60 FR 42767), August 14, 1996 (61 FR 42527), August 15, 1997 (62 FR 43629), and August 13, 1998 (63 FR 44121).

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, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the Paperwork Reduction Act (PRA), unless that collection of information displays a currently valid OMB Control Number. This rule involves collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). These collections have been approved by the Office of Management and Budget under control number 0694-0088, Multi- Purpose Application," which carries a burden hour estimate of 52.5 minutes per submission and control number 0694-0107, "National Defense Authorization Act," Advance Notifications and Post-Shipment Verification reports. Reports in support of Post-Shipment Verifications require 15 minutes per submission, whether the Post-Shipment Verification is conducted on an export authorized under a license or License Exception CTP.

3. This rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under Executive Order 12612.

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 (Sec. 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 5 U.S.C. 553 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 rule 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 sent to Hillary Hess, Director, Regulatory Policy Division, Bureau of Export Administration, Department of Commerce, P.O. Box 273, Washington, DC 20044.

List of Subjects

15 CFR part 740

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

15 CFR part 742

Exports, Foreign Trade.

Accordingly, parts 740 and 742 of the Export Administration Regulations (15 CFR parts 730- 799) are amended to read as follows:

1. The authority citation for part 740 is revised to read as follows:

Authority: 50 U.S.C. app . 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp ., p. 917 (1995); E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp ., p. 228 (1997); Notice of August 15, 1995, 3 CFR, 1995 Comp . 501 (1996); Notice of August 14, 1996, 61 FR 42527, 3 CFR, 1996 Comp., p. 298 (1997); Notice of August 13, 1997, 62 FR 43629, 3 CFR, 1997 Comp., p.306 (1998); Notice of August 13, 1998 (63 FR 44121, August 17, 1998); and P.L. 105-85, 111 Stat. 1629.

PART 740 - [AMENDED]

2. Section 740.7 is amended by revising paragraph (d)(4)(v) to read as follows:

§740.7 Computers (CTP).

* * * * *

(4) NDAA notification. * * *

(v) Post-shipment verification. * * *

(A) 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 BXA at the address listed in paragraph (d)(4)(v)(B) of this section:

(1) Exporter name, address, and telephone number;

(2) NDAA notification 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.

(B) Mailing address. A copy of the post-shipment report[s ] required under paragraph (d)(4)(v)(A) of this section shall be delivered to one of the following addresses. Note that BXA will not accept reports sent C.O.D.

(1) For deliveries by U.S. postal service:

Bureau of Export Administration

U.S. Department of Commerce

P.O. Box 273

Attn : HPC Team

Washington, D.C. 20044

(2) For courier deliveries:

U.S. Department of Commerce

Office of the Assistant Secretary

For Export Enforcement

Room H3721

14th Street and Constitution Ave. NW

Washington, DC 20230

Attn: HPC Team

* * * * *

3. The authority citation for part 742 is revised 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; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179 (1979); E.O. 12851, 58 FR 33181, 3 CFR 1993 Comp., p. 608 (1994); E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917 (1995); E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950 (1995); E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228 (1997); Notice of August 15, 1995, 3 CFR, 1995 Comp. 501 (1996); Notice of August 14, 1996, 61 FR 42527, 3 CFR 1996 Comp., p. 298 (1997); Notice of August 13, 1997 62 FR 43629, 3 CFR, 1997 Comp., p. 306 (1998); Notice of August 13, 1998 (63 FR 44121, August 17, 1998); and P.L. 105-85, 111 Stat. 1629.

PART 742 - [AMENDED]

4. Section 742.12 is amended by revising paragraph (b)(3)(iv) to read as follows:

§742.12 High performance computers.

* * * * *

(b) * * *

(3) * * *

(iv) Post-shipment verification. * * *

(A) 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 BXA at the address listed in paragraph (b)(3)(iv)(B) 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.

(B) Mailing address. A copy of the post-shipment report[s ] required under paragraph (b)(3)(vi)(A) of this section shall be delivered to one of the following addresses. Note that BXA will not accept reports sent C.O.D.

(1) For deliveries by U.S. postal service:

Bureau of Export Administration

U.S. Department of Commerce

P.O. Box 273

Attn: HPC Team

Washington, D.C. 20044

(2) For courier deliveries:

U.S. Department of Commerce

Office of the Assistant Secretary

For Export Enforcement

Room H3721

14th Street and Constitution Ave. NW

Washington, DC 20230

Attn: HPC Team

* * * * *

DATED:

R. Roger Majak

Assistant Secretary

for Export Administration