Where Industry and Security Intersect
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NDAA notifications are no longer required for high performance computer (HPC) exports to Tier 3 countries, effective March 20, 2001. Please note that a license is required to export an HPC, even when one would not otherwise be necessary, if you know, have reason to know, or are otherwise individually informed by BIS with respect to a specific transaction, that the HPC will be used in activities related to nuclear, chemical, or biological weapons, or missile delivery systems. (See Part 744 of the Export Administration Regulations).
Military end users, research institutions, and universities undergo closer scrutiny than most other end users, especially when there will be remote access end users with full computational access. When applying for export or re-export to such end users, the applicant must ensure that all the required information is submitted. Submitting complete information on the end user and end use will avoid delays in processing these types of applications.
License applications always must identify whether or not there are remote access end users, their location, and the computational access they will have. This includes, for example, whether the end users will have full or limited computational access.
In general, when remote access end users have full computational access and they are not tied to using a specific software application, addenda to the Security Safeguard Plans (SSP) may be required for each remote access end-user site. In most instances, an individual at that site (or responsible for that site) will have to sign the SSP. On the other hand, if a remote access end user is part of a large corporation and the computational ability is limited to running certain software applications (e.g., business, financial), only one SSP will be required. A corporate official at the parent company or the system administrator will be required to sign the SSP.
If there is more than one system on a license application, remember that an item appendix, form BIS-748P-A, is necessary for each system (see Supplement 1 to EAR Part 748) and you must identify the total composite theoretical performance (CTP) level of each proposed system listed on the license application. The transaction will be evaluated based on the final configuration of the system.
For example, if an end user already has a system with a CTP of 69,000 (received under License Exception CTP or a license) and the new transaction is adding 140,000 MTOPS, you must list a CTP of 209,000 MTOPS on the license application. Make sure you include any information on the "old" system being upgraded. You must indicate what type of system it is, the CTP, MHz, number of CPUs, etc.
Note: The CTP value of a system is not always an arithmetic summation of the CTP values of the component systems. Refer to the technical note at the back of Category 4 to calculate the CTP.
Security Safeguard Plans (SSPs): End-user as well as Government Certifications
In general, a "Standard" SSP is required for most end users in Computer Tier 3 countries if the CTP level is above the License Exception CTP threshold. Since approximately 90% of all licenses for these countries receive a standard Tier 3 SSP, BIS encourages exporters to either submit the end-user certified SSP with the application or to obtain the SSP while the application is being processed. However, this is not a requirement. Once the license application is approved by all agencies, there may be additional SSP requirements (depending on the presence of remote access end users or the type of end user) beyond the standard Computer Tier 3 SSP. In this case, the exporter will have to obtain a certified addendum from the end user.
For end-user certified SSP's, the exporter may participate in all aspects of the SSP generation and SSP delivery to BIS.
A Government Certified SSP will most likely be required when an end user is a Computer Tier 3 military end user or university, or when the computer's CTP is particularly high. The end user signs the SSP and delivers it to the appropriate government agency within the end-user's country for certification.
The U.S. exporter may facilitate this process by assisting the end user in
several ways, including:
1) Determining the correct agency to certify the SSP
2) Briefing the certifying agency should it require additional information
on this process, and
3) Contacting the Foreign Commercial Service Officers in the U.S. Embassies.
The only prohibition in facilitation is the actual handling of the SSP. The end user must deliver the signed SSP to the foreign government agency, and the foreign government agency must certify the SSP and turn it over to an official at the U.S. Embassy. The U.S. Embassy will forward the Government Certified SSP to the BIS Licensing Officer. This Embassy official is usually the FCS Officer or Economic Officer.
All HPC exports and re-exports under license to the PRC China require a PRC End-User Certificate issued by the Ministry of Foreign Trade and Economic Cooperation (MOFTEC). The Chinese government does not provide these certificates for companies that are not Chinese legal entities under Chinese law. If you are exporting or re-exporting to companies that are not Chinese legal entities under Chinese law, you should submit a BIS-711 form in lieu of the End-User Certificate. Please refer to EAR Part 748 for additional information on required support documentation.
MOFTEC officials have informed BIS that to expedite the issuance of the PRC End-User Certificate, the applicant or the end user must ensure that all the relevant information is included. Therefore, you should provide your customers with the following information:
For exports or reexports of high performance computers (or upgrades) under
license to a Computer Tier 3 country, post-shipment reports must be filed
where the CTP is greater than 190,000 MTOPS. These reports must be submitted
to BIS no later than the last day of the month following the month in which
the shipment took place. See section 742.12(b)(3)(iv) of the EAR for the specific
requirements and instructions on HPC reporting. BIS multipurpose forms are
available for reporting purposes: BIS-742R
(pdf)| BIS-742S
(pdf).