Foreign Availability Assessment Questions and Answers

• What is a Foreign Availability Assessment?
• On What Basis Would You Consider Submitting a Foreign Availability Claim?
• What If an Item Is Not Controlled for National Security (NS) Reasons?
• What Are the Criteria for Foreign Availability Allegations?
• What Are Examples of Evidence to Support a Foreign Availability Claim?
• What Are the Possible Results of a Foreign Availability Assessment?
• To Whom Should Foreign Availability Claims Be Submitted?
• When Will You Receive a Response?
• Where Do You Obtain Assistance?

Q: What is a Foreign Availability Assessment?

Foreign availability assessments are reviews of U.S. export controls on items that exporters have identified as “foreign available”.  Generally, “foreign available” means available outside the United States.  The Bureau of Industry and Security (BIS) conducts these reviews on behalf of the Secretary of Commerce.

Certain foreign availability assessments – for items controlled for national security (NS) reasons – are conducted pursuant to Part 768 of the Export Administration Regulations (EAR).  The authority to conduct these assessments is derived from sections 5(f) and 5(h) of the Export Administration Act of 1979, as amended (EAA).  BIS may also initiate foreign availability assessments for items controlled for other than NS reasons (e.g., non-proliferation (NP), missile technology (MT), regional stability (RS), anti-terrorism (AT) reasons). 

Q:  On What Basis Would You Consider Submitting a Foreign Availability Claim?

Exporters who believe that U.S. dual-use export controls place them at a competitive disadvantage in the global marketplace can request a foreign availability assessment from BIS.  Traditionally, most exporters request these assessments when they discover that comparable items produced outside of the United States are more freely available to foreign end-users than they are from U.S. exporters due to export restrictions imposed on U.S. persons.

Under Part 768 of the EAR, there are two types of foreign availability assessments.

• Denied License Assessment:  An exporter submits a foreign availability assessment claim after their application for an export license to export an item has been denied.  This claim must be submitted to BIS within 90 days after denial of the license.  In the submission, the exporter should assert that the license application should be approved because the item is foreign available, and support this assertion with evidence related to the specific export transaction on the denied license application and the alleged comparable item.

• Decontrol Assessment:  Alternatively, an exporter or a technical advisory committee (TAC) may independently submit a claim alleging foreign availability of items to a country.   This claim must also be supported by reasonable evidence. 

The Secretary of Commerce may also self-initiate a foreign availability assessment.

Q: What If an Item Is Not Controlled for National Security (NS) Reasons?

BIS may conduct foreign availability assessments for items controlled for other than NS reasons (e.g., NP, MT, RS, AT).  These assessments can be requested by export license applicants, industry, TACs, or other federal agencies or they may be self-initiated by BIS.  The evidence needed to support a claim of foreign availability in these control categories is the same as that for items controlled for NS reasons.     

Q: What Are the Criteria for Foreign Availability Allegations?

The criteria for making any foreign availability allegation is that an item of comparable quality must be available-in-fact to a country, from a non-U.S. source, in sufficient quantity to render the U.S. export control of that item or the denial of a license ineffective.  Evidence submitted with your claim must address the following criteria:

• Comparable quality:  an item that possesses the same characteristics as an item specified on the Commerce Control List and is alike in key characteristics that include, but are not limited to, function, technological approach, performance thresholds, maintainability, and service lif

• Available-in-fact:  an item is indigenously produced or can be obtained from a third country.  If the third country is a member of a multilateral export control regime, the item is not considered available-in-fact if exported under a license or similar type authorization.

• Non-U.S. source:  an item is not sourced from the United States or is not the product of controlled U.S. technology.

• Sufficient quantity:  the amount of an item that would render the U.S. export control ineffective in achieving its purpose.  For a “controlled” country, it is the quantity that meets the military needs of that country so that U.S. exports of the item to that country would not make a significant contribution to its military potential.

Q:  What Are Examples of Evidence to Support a Foreign Availability Claim?

When alleging foreign availability, exporters must support their claim to BIS by providing reasonable evidence that shows that foreign availability exists.  Examples of such information are as follows:

• Product names, model designations, and manufacturers (including locations) of the item alleged to be comparable with the item controlled by an Export Control Classification Number.

• Articles, photographs, website information, pamphlets, etc., that support the claim that the item is foreign available (or that an item of comparable quality is available outside of the United States). 

• If the foreign available item is not indigenously produced in the country that is the focus of a foreign availability submission, evidence that shows the item is available-in-fact to the country.

• The extent to which the alleged comparable item is based on U.S. technology.  For example, are there additional patents, especially foreign?

• The key performance elements, attributes, and characteristics of the item about which a qualitative comparison to the foreign available item can be made.

• The production quantities of any alleged comparable item.

• The estimated market demand for the item. 

• The impact of the export control on your company, economic or otherwise (e.g., lost sales, export avoidance, change in export practices).

• Additional evidence that supports each criterion (see above) as described in Supplement No. 1 to Part 768 – Evidence of Foreign Availability.

The information provided in the submission will be used by BIS, along with data furnished by other agencies, to determine whether there is enough reasonable and reliable evidence to initiate a foreign availability assessment.  Exporters should identify the information as “confidential trade secret information” when necessary or appropriate.

Q: What Are the Possible Results of a Foreign Availability Assessment?

Possible outcomes for a foreign availability assessment pursuant to Part 768 of the EAR include:

• Removal or modification of the license requirement if foreign availability is found;

• No change of control based on a negative finding of foreign availability; or

• Initiation of negotiations to eliminate foreign availability upon a positive finding.

Possible outcomes for foreign availability assessments involving items controlled for reasons other than NS include:

• No change of control based on a negative finding of foreign availability (including for foreign policy or national security reasons); or

• If foreign availability is found for:

        multilaterally controlled items (i.e., controlled by the Australia Group, Nuclear Suppliers Group, Missile Technology Control Regime), the U.S. Government will seek consultations with multilateral regime partners to appropriately decontrol or change the parameters of the control, or eliminate the foreign availability consistent with U.S. law; or

       unilaterally controlled items (e.g., AT, RS), BIS will decontrol or change the parameters of control of the item consistent with U.S. law.

Q: To Whom Should Foreign Availability Claims Be Submitted?  

Foreign availability submissions should be submitted to:  Department of Commerce, Bureau of Industry and Security, Room H-1093, 14th Street and Pennsylvania Avenue, NW, Washington, DC 20230.  The Office of Technology Evaluation (OTE) of BIS will evaluate petitions and conduct assessments.

Q:  When Will You Receive a Response?

If the evidence that you provide to BIS does not support your claim of foreign availability, BIS will return your submission and provide the reasons why the submission was rejected.

If an assessment is initiated, the Secretary will make a foreign availability determination under Part 768 of the EAR as follows:

• For claimant-certified assessments:              within 5 months of initiation

• For TAC-certified assessments:                     within 90 days of initiation

For items not subject to Part 768 of the EAR, BIS will seek to make a determination within six months of initiation.

Q: Where Do You Obtain Assistance?

For further information regarding the process for submitting a foreign availability claim, including the types of reasonable evidence that are necessary for inclusion in a claim, contact the Office of Technology Evaluation at (202) 482-4933.