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

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.

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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

[[Page 63142]]

revises post-shipment verification (PSV) reporting procedures

originally implemented as a result of the National Defense

Authorization Act (NDAA) for fiscal year 1998 (Pub L. 105-85, 111 Stat.

1629).

DATES: This rule is effective November 12, 1998.

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:

PART 740--[AMENDED]

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.

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

as follows:

Sec. 740.7 Computers (CTP).

* * * * *

(d) * * *

(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.

[[Page 63143]]

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

Bureau of Export Administration, U.S. Department of Commerce, P.O.

Box 273, Washington, D.C. 20044, Attn: HPC Team.

(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

* * * * *

PART 742--[AMENDED]

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.

4. Section 742.12 is amended by revising paragraph (b)(3)(iv) to

read as follows:

Sec. 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, Washington, D.C. 20044, Attn: HPC Team.

(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: November 4, 1998.

R. Roger Majak,

Assistant Secretary for Export Administration.

[FR Doc. 98-30250 Filed 11-10-98; 8:45 am]

BILLING CODE 3510-33-P