Supplement No. 1 to Part 734—Model Certification for Purposes of the FDP Rule

(a) General. This supplement is included in the EAR to assist exporters, reexporters, and transferors in determining whether the items being exported, reexported, or transferred (in-country) are subject to the EAR based on one or more of the Foreign Direct Product (FDP) rules under § 734.9. The model certificate provided by BIS in supplement no. 1 to this part is not required under the EAR , but through its provision, the certificate may assist exporters, reexporters, and transferors with the process of resolving potential red flags regarding whether an item is subject to the EAR based on one or more of the FDP rules under § 734.9. The model certificate provided in this supplement by BIS contemplates signature by an official or designated employee of the certifying company and inclusion of the information described in paragraph (b) of this supplement. The certificate may be provided by any entity in a supply chain or by an exporter, reexporter, or transferor of the item. For example, the certificate may be provided by an exporter, reexporter, or transferor to any other entity later in a supply chain. Similarly, any entity later in a supply chain may request a certificate from an exporter, reexporter, or transferor earlier in a supply chain. Any certification relied on for this part must be retained pursuant to recordkeeping provisions in part 762 of the EAR . Obtaining the certification set forth in this supplement no. 1 to part 734 does not relieve exporters, reexporters and transferors of their obligation to exercise due diligence in determining whether items are subject to the EAR , including by following the “Know Your Customer” guidance in supplement no. 3 to part 732 of the EAR .

(b) Model criteria. A certification will be most useful if it meets the criteria described in this supplement and if it contains at least the following information:

(1) The certification must be signed by an organization official specifically authorized to certify the document as being accurate and complete. The certifying official attests that the information herein supplied in response to this paragraph is complete and correct to the best of his/her “knowledge.”

(2) The organization [INSERT NAME OF THE CERTIFYING OFFICIAL'S COMPANY] has reviewed the criteria for the foreign direct product (FDP) rules under § 734.9 the U.S. Export Administration Regulations (EAR ) (15 CFR 730-774) and attests that from the certifying official's “knowledge” of the item, [INSERT A DESCRIPTION OF THE ITEMS], provided to [INSERT NAME OF THIS CUSTOMER], are subject to the EAR if future transactions are within the country/destination and/or end use scope or end-user scope of one or more of the following FDP rules [include whichever ones are applicable]:

(i) Country scope of § 734.9(b)(2), i.e., exported or reexported to or transferred within a destination listed in Country Group D:1, E:1, or E:2 (see supplement no.1 to part 740 of the EAR );

(ii) Country scope of § 734.9(c)(2), i.e., exported or reexported to or transferred within a destination listed in Country Group D:5, E:1, or E:2 (see supplement no.1 to part 740 of the EAR );

(iii) Country scope of § 734.9(d)(2), i.e., exported or reexported to or transferred within a destination listed in Country Group D:1, D:3, D:4, D:5, E:1, or E:2 (see supplement no.1 to part 740 of the EAR );

(iv) End-user scope of § 734.9(e)(1)(ii) or (e)(2)(ii) for a Footnote 1 or Footnote 4 entity, respectively (see supplement no. 4 to part 744);

(v) Destination scope of § 734.9(f)(2), i.e., exported or reexported to or transferred within Russia, Belarus, or the temporarily occupied Crimea region of Ukraine or will be incorporated into or used in the “production” or “development” of any “part,” “component,” or “equipment” specified in any ECCN on the CCL or in supplement no. 6 or 7 to part 746 of the EAR and produced in or destined to Russia, Belarus, or the temporarily occupied Crimea region of Ukraine;

(vi) End-user scope of § 734.9(g)(2) for a Footnote 3 entity (see supplement no. 4 to part 744);

(vii) Destination and end-use scope of § 734.9(h)(2), i.e., the foreign-produced item is: destined to a destination specified in Country Groups D:1, D:4, or D:5, excluding any destination also specified in Country Groups A:5 or A:6, or will be incorporated into any “part,” “component,” “computer,” or “equipment” not designated EAR 99 that is destined to a destination specified in Country Groups D:1, D:4, or D:5, excluding any destination also specified in Country Groups A:5 or A:6, or worldwide to an entity headquartered in, or whose ultimate parent company is headquartered in, either a destination specified in Country Groups D:1, D:4, or D:5, excluding any destination also specified in Country Groups A:5 or A:6; or technology developed by an entity headquartered in, or whose ultimate parent company is headquartered in, either Country Groups D:1, D:4, or D:5, excluding any destination also specified in Country Groups A:5 or A:6, for the “production” of a mask or an integrated circuit wafer or die;

(viii) Country and end-use scope of § 734.9(i)(2), i.e., used in the design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of, a “supercomputer” located in or destined to the People's Republic of China (PRC) or Macau; or incorporated into, or used in the “development,” or “production,” of any “part,” “component,” or “equipment” that will be used in a “supercomputer” located in or destined to the PRC or Macau;

(ix) Destination scope of § 734.9(j)(2), i.e., is destined to Iran or will be incorporated into or used in the “production” or “development” of any “part,” “component,” or “equipment,” including any modified or designed “components,” “parts,” “accessories,” and “attachments” therefor, identified in supplement no. 7 to part 746 of the EAR or is specified in any ECCN on the CCL in Categories 3 through 5 or 7 of the CCL that is located in or destined to Iran; and

(3) My organization affirms its commitment to comply with all applicable requirements under the EAR .

[INSERT NAME(S) OF CONSIGNEE(S) OR EXPORTER(S), REEXPORTERS), OR TRANSFERORS AS APPLICABLE].

[INSERT DATE(S) SIGNED]

Note 1 to paragraph (b): When multiple consignees engaged in a production process (or other type of collaborative activity, such as joint development) will be exporting, reexporting, transferring, or receiving items subject to the EAR , a single model certification statement for multiple consignees may be used.

(c) Additional information. Because this is only a model certification, parties to the transaction may add additional elements to the certification and/or use it for multiple purposes as part of their compliance program. For example, if a company has ten affiliated companies in a multi-step supply chain, instead of obtaining a model certification for each export, reexport, or transfer (in-country), the exporter, reexporter, or transferor may request all ten parties to sign the certification, if appropriate, which may further reduce the burden on parties participating in the supply chain.