What is a Foreign Availability Assessment?

Foreign Availability Assessments are reviews of the export controls on national security (NS) controlled items that have been alleged to be “foreign available”. “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.

Foreign availability assessments 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).

How to Determine if You Should Submit a Foreign Availability Claim

Exporters at a competitive disadvantage in the global marketplace because of U.S. export controls on items that are also available from non-Wassenaar-Arrangement countries may consider requesting a foreign availability assessment. Traditionally, most exporters request these assessments when they discover that comparable items produced outside of the U.S. are more freely available to consumers than they are from U.S. exporters due to export restrictions imposed on U.S. persons.

Under the EAR, there are two general programs of foreign availability.

·         Foreign Availability to Controlled Countries: In this category are denied license assessments and decontrol assessments. Controlled countries are defined in section 768.1 of the EAR. For a description of the 2014 - 2015 decontrol assessment involving the PRC, please click here. Regarding the denied license assessment, a foreign availability assessment may be initiated based on a claimant’s allegation of foreign availability for an item (or items) that BIS has denied or has issued a letter of intent to deny a license.

·         Foreign Availability to Non-controlled Countries: This category includes assessments initiated based on denied licenses and decontrol requests, and evaluations of eligibility for expedited licensing. BIS determines the eligibility of an item for expedited licensing procedures following an evaluation of the foreign availability of the item.

Initiation of a Foreign Availability Assessment

To initiate an assessment, a claimant must submit to BIS a Foreign Availability Submission (FAS) which alleges foreign availability and is supported by reasonable evidence (see below), pursuant to section 768.5 of the EAR, a Technical Advisory Committee (TAC) may also submit a TAC certification to BIS, which is supported by reasonable documented evidence, similar to that required in a FAS that foreign availability exists for an item that falls within the TAC’s area of technical expertise. TACs are authorized to certify foreign availability only to controlled countries, while claimants can allege foreign availability for either controlled or non-controlled countries. The Secretary of Commerce may also self-initiate a foreign availability assessment.

Criteria for Foreign Availability Allegations

The criteria for making any allegation of foreign availability is that an item of comparable quality is 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. Such a claim must include evidence that meets these criteria. Further explanation of these criteria follows below.

·         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 life, and any other attribute relevant to the purpose for which the control exists on the item.

·         Available-in-fact: an item indigenously produced or one that can be obtained from a third country. Ordinarily, 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: a person located outside the jurisdiction of the United States.

·         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.

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, pursuant to section 768.5 of the EAR and Supplement No. 1 to part 768, 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 (ECCN).

·         Articles, photographs, website information, pamphlets, etc., that support the claim that the item is foreign available (e.g., that an item of comparable quality is available outside of the U.S.).

·         If the foreign available item is not indigenously produced in the country that is the focus of your 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 to which a qualitative comparison of the alleged comparable item may be made.

·         The production quantities of any alleged comparable item.

·         The estimated market demand for the item.

·         Consider 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 as described in Supplement No. 1 to Part 768 – Evidence of Foreign Availability.

The information provided in the submission will be used by BIS 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.

Submission of Foreign Availability Claim

Foreign availability claims should be submitted to:

Office of Technology Evaluation
Bureau of Industry and Security
U.S. Department of Commerce
1401 Constitution Avenue, NW
Room H-1093
Washington, D.C. 20230

BIS’s Office of Technology Evaluation (OTE) evaluates petitions and conducts assessments. 

Response Times

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.

The Secretary will make a foreign availability determination under Part 768 of the EAR as follows:

·        For claimant’s Foreign Availability Submission for decontrol and denied license assessments: within 5 months of initiation.

·        For an assessment based on a TAC Certification: within 90 days of initiation.

·        For assessments self-initiated by the Secretary: no statutory deadline exists; however, BIS makes every effort to complete such assessments promptly.

·         For assessment of eligibility for expedited licensing procedures to non-controlled countries: within 30 days of initiation.

Results of a Foreign Availability Determination

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 with the Wassenaar Arrangement to eliminate controls on items for which BIS made a positive determination of foreign availability.

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.