Part 768 - Foreign Availability Determination Procedures and Criteria

PART 768

FOREIGN AVAILABILITY DETERMINATION PROCEDURES AND CRITERIA

Sec.

Page

768.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

768.2 Foreign availability described . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

768.3 Foreign availability assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

768.4 Initiation of an assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

768.5 Contents of foreign availability submissions and Technical Advisory Committee

certifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

768.6 Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

768.7 Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

768.8 Eligibility of expedited licensing procedures for non-controlled countries . . . . . . . . . . . . 10

768.9 Appeals of negative foreign availability determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

768.10 Removal of controls on less sophisticated items . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

EVIDENCE OF FOREIGN AVAILABILITY . . . . . . . . . . . . . . . . . . . . . . . . . SUPPLEMENT NO. 1

ITEMS ELIGIBLE FOR EXPEDITED LICENSING PROCEDURES

[RESERVED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SUPPLEMENT NO. 2

Export Administration Regulations

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Foreign Availability Determination Procedures and Criteria

§768.1

Part 768Spage 1

(see §768.8 of this part).

INTRODUCTION

(d) Definitions

In this part, references to the Export
Administration Regulations (EAR) are references
to 15 CFR chapter VII, subchapter C.

The following are definitions of terms used in this
part 768:
Allegation. See foreign availability submission.

(a) Authority
Pursuant to sections 5(f) and 5(h) of the Export
Administration Act (EAA), the Under Secretary
of Commerce for Export Administration directs
the Bureau of Industry and Security (BIS) in
gathering and analyzing all the evidence
necessary for the Secretary to determine foreign
availability.
(b) Scope
This part applies only to the extent that items are
controlled for national security purposes. This
part does not apply to encryption items that were
formerly controlled on the U.S. Munitions List
and that were transferred to the Commerce
Control List consistent with E.O. 13026 of
November 15, 1996 (61 FR 58767) and pursuant
to the Presidential Memorandum of that date,
which shall not be subject to any mandatory
foreign availability review procedures.
(c) Types of programs
There are two general programs of foreign
availability:
(1)
Foreign availability to controlled
countries. In this category are denied license
assessments (see §§768.4(b) and 768.7 of this
part) and decontrol assessments (see §§768.4(c)
and 768.7 of this part).
(2) Foreign availability to non-controlled
countries. In this category are denied license
assessments, decontrol assessments, and
evaluations of eligibility for expedited licensing
Export Administration Regulations

Assessment. An evidentiary analysis that BIS
conducts concerning the foreign availability of a
given item based on the assessment criteria, data
gathered by BIS, and the data and
recommendations submitted by the Departments
of Defense and State and other relevant
departments and agencies, TAC committees, and
industry.
Assessment criteria. Statutorily established
criteria that must be assessed for the Secretary to
make a determination respect to foreign
availability. They are, available-in-fact, from a
non-U.S. source, in sufficient quantity so as to
render the control ineffective, and of comparable
quality. (See §768.6 of this part).
Available-in-fact. An item is available-in-fact
to a country if it is produced within the country or
if it may be obtained by that country from a third
country. Ordinarily, items will not be considered
available-in-fact to non-controlled countries if the
items are available only under a validated national
security license or a comparable authorization
from a country that maintains export controls on
such items cooperatively with the United States.
Claimant. Any party who makes a foreign
availability submission, excluding TACs.
Comparable quality. An item is of comparable
quality to an item controlled under the EAR if it
possesses the characteristics specified in the
Commerce Control List (CCL) for that item and is
alike in key characteristics that include, but are
not limited to: (1) function; (2) technological
approach; (3) performance thresholds; (4)
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Foreign Availability Determination Procedures and Criteria

maintainability and service life; and (5) any other
attribute relevant to the purpose for which the
control was placed on the item.
Controlled countries.
Albania, Armenia,
Azerbaijan, Belarus, Bulgaria, Cambodia, Cuba,
Estonia, Georgia, Kazakhstan, Kyrgyzstan, Laos,
Latvia, Lithuania, Moldova, Mongolia, North
Korea, Romania, Russia, Tajikistan,
Turkmenistan, Ukraine, Uzbekistan, Vietnam and
the People's Republic of China.

Part 768Spage 2

processes a license application for the export of
an eligible item to a non-controlled country
within statutory time limits. Licenses are deemed
approved unless BIS denies within the statutory
time limits (See §768.8 of this part).
Foreign availability submission (FAS). An
allegation of foreign availability a claimant
makes, supported by reasonable evidence, and
submits to BIS. (See §768.5 of this part).
Item. Any commodity, software, or technology.

Decontrol. Removal of license requirements
under the EAR.
Decontrol assessment. An assessment of the
foreign availability of an item to a country or
countries for purposes of determining whether
decontrol is warranted. Such assessments may be
conducted after BIS receives a foreign availability
submission or a TAC certification, or by the
Secretary's own initiative.
Denied license assessment. A foreign
availability assessment conducted as a result of 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. If the
Secretary determines that foreign availability
exists, BIS's approval of a license will be limited
to the items, countries, and quantities in the
allegation.
Determination. The Secretary's decision that
foreign availability within the meaning of the
EAA does or does not exist. (See §768.7 of this
part).
Expedited licensing procedure eligibility
evaluation. An evaluation that BIS initiates for
the purpose of determining whether an item is
eligible for the expedited licensing procedure.
(See §768.8 of this part).
Expedited licensing procedures. Under
expedited licensing procedures, BIS reviews and
Export Administration Regulations

Items eligible for non-controlled country
expedited licensing procedures.
The items
described in Supplement No. 2 to this part 768 are
eligible for the expedited license procedures (See
§768.8 of this part).
National Security Override (NSO). A
Presidential decision to maintain export controls
on an item notwithstanding its foreign availability
as determined under the EAA. The President's
decision is based on his/her determination that the
absence of the controls would prove detrimental
to the national security of the United States.
Once the President makes such a decision, the
President must actively pursue negotiations to
eliminate foreign availability with the
governments of the sources of foreign
availability. (See §768.7 of this part).
Non-controlled countries. Any country not
defined as a controlled country by this section.
Non-U.S. source/foreign source. A person
located outside the jurisdiction of the United Stat­
es (as defined in part 772 of the EAR).
Reasonable evidence.
that is credible.

Relevant information

Reliable evidence. Relevant information that is
credible and dependable.
Secretary. As used in this part, the Secretary
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Foreign Availability Determination Procedures and Criteria

refers to the Secretary of Commerce or his/her
designee.
Similar quality. An item is of similar quality to
an item that is controlled under the EAR if it is
substantially alike in key characteristics that may
include, but are not limited to: (1) function; (2)
technological approach; (3) performance
thresholds; (4) maintainability and service life;
and (5) any other attribute relevant to the purpose
for which the control was placed on the item.
Sufficient quantity. The amount of an item that
would render the U.S. export control, or the
denial of the license in question, 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.
Technical Advisory Committee (TAC). A
Committee created under section 5(h) of the EAA
that advises and assists the Secretary of
Commerce, the Secretary of Defense, and any
other department, agency, or official of the
Government of the United States to which the
President delegates authority under the EAA on
export control matters related to specific areas of
controlled items.
TAC certification. A statement that a TAC
submits to BIS, supported by reasonable
evidence, documented as in a FAS, that foreign
availability to a controlled country exists for an
item that falls within the TAC's area of technical
expertise.

§768.2
FOREIGN AVAILABILITY DESCRIBED
(a) Foreign availability
Foreign availability exists when the Secretary
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determines that an item is comparable in quality
to an item subject to U.S. national security export
controls, and is available-in-fact to a country,
from a non-U.S. source, in sufficient quantities to
render the U.S. export control of that item or the
denial of a license ineffective. For a controlled
country, such control or denial is "ineffective"
when maintaining such control or denying a
specific license would not restrict the availability
of items that would make a significant
contribution to the military potential of the
controlled country or combination of countries
detrimental to the national security of the United
States (see sections 5(a) and 3(2)(A) of the EAA).
(b) Types of foreign availability
There are two types of foreign availability:
(1) Foreign availability to a controlled country;
and
(2) Foreign availability to a non-controlled
country.
Note to paragraph (b) of this section: See
§768.7 of this part for delineation of the foreign
availability assessment procedures, and §768.6 of
this part for the criteria used in determining
foreign availability.

§768.3
FOREIGN AVAILABILITY ASSESSMENT
(a) Foreign availability assessment
A foreign availability assessment is an
evidentiary analysis that BIS conducts to assess
the foreign availability of a given item according
to the assessment criteria, based on data
submitted by a claimant, the data gathered by
BIS, and the data and recommendations submitted
by the Departments of Defense and State and
other relevant departments and agencies, TAC
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Foreign Availability Determination Procedures and Criteria

committees, and industry. BIS uses the results of
the analysis in formulating its recommendation to
the Secretary on whether foreign availability
exists for a given item. If the Secretary
determines that foreign availability exists, the
Secretary will decontrol the item for national
security reasons or approve the license in
question if there is no foreign policy reason to
deny the license, unless the President exercises a
National Security Override (see §768.7 of this
part). The effect of any such determination on the
effectiveness of foreign policy controls may be
considered independent of this part.
(b) Types of assessments
There are two types of foreign availability
assessments:
(1) Denied license assessment; and
(2) Decontrol assessment.
(c) Expedited licensing procedures
See §768.8 of this part for the evaluation of
eligibility of an item for the expedited licensing
procedures.

Part 768Spage 4

denied, or for which it has issued a letter of intent
to deny on national security grounds, may request
that BIS initiate a denied license assessment by
submitting a Foreign Availability Submission
(FAS) within 90 days after denial of the license.
As part of its submission, the claimant must
request that the specified license application be
approved on the grounds of foreign availability.
The evidence must relate to the particular export
as described on the license application and to the
alleged comparable item. If foreign availability is
found, the Secretary will approve the license for
the specific items, countries, and quantities listed
on the application. The denied license assessment
procedure, however, is not intended to result in
the removal of the U.S. export control on an item
by incrementally providing a country with
amounts that, taken together, would constitute a
sufficient quantity of an item. The Secretary will
not approve on foreign availability grounds a
denied license if the approval of such license
would itself render the U.S. export control
ineffective in achieving its purpose. In the case
of a positive determination, the Secretary will
determine whether a decontrol assessment is
warranted. If so, then BIS will initiate a decontrol
assessment.
(c) Decontrol assessment

§768.4
INITIATION OF AN ASSESSMENT

(1) Any claimant may at any time request that
BIS initiate a decontrol assessment by a FAS to
BIS alleging foreign availability to any country or
countries.

(a) Assessment request
To initiate an assessment, each claimant or TAC
must submit a FAS or a TAC Certification to BIS.
TACs are authorized to certify foreign availability
only to controlled countries. Claimants can allege
foreign availability for either controlled or
non-controlled countries.
(b) Denied license assessment

(2) A TAC may request that BIS initiate a
decontrol assessment at any time by submitting a
TAC Certification to BIS that there is foreign
availability to a controlled country for items that
fall within the area of the TAC's technical
expertise.
(3) The Secretary, on his/her own initiative, may
initiate a decontrol assessment.

A claimant whose license application BIS has
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Foreign Availability Determination Procedures and Criteria

(d) BIS mailing address
All foreign availability submissions and TAC
certifications should be submitted to:
! Department of Commerce
Bureau of Industry and Security
Room H-1093
14th Street and Pennsylvania Avenue, NW
Washington, DC 20230

§768.5
CONTENTS OF FOREIGN

AVAILABILITY SUBMISSIONS AND

TECHNICAL ADVISORY COMMITTEE

CERTIFICATIONS

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(4) Key performance elements, attributes, and
characteristics of the items on which a qualitative
comparison may be made;
(5) Non-U.S. source's production quantities
and/or sales of the alleged comparable items and
marketing efforts;
(6) Estimated market demand and the economic
impact of the control;
(7) Product names, model designations, and
value of U.S. controlled parts and components
incorporated in the items alleged to be
comparable; and
(8) The basis for the claim that the item is
available-in-fact to the country or countries for
which foreign availability is alleged.

(a) All foreign availability submissions must
contain, in addition to information on product or
technology alleged to be available from foreign
sources, at least:

(c) Supporting evidence of foreign availability
may include, but is not limited to, the following:

(1) The name of the claimant;

(1) Foreign manufacturers' catalogs, brochures,
operation or maintenance manuals;

(2) The claimant's mailing and business address;

(2) Articles from reputable trade and technical
publications;

(3) The claimant's telephone number; and
(3) Photographs;
(4) A contact point and telephone number.
(b) Foreign availability submissions and TAC
certifications should contain as much evidence as
is available to support the claim, including, but
not limited to:
(1) Product names and model designations of the
items alleged to be comparable;
(2) Extent to which the alleged comparable item
is based on U.S. technology;
(3) Names and locations of the non-U.S. sources
and the basis for claiming that the item is a
non-U.S. source item;
Export Administration Regulations

(4) Depositions based on eyewitness accounts;
and
(5) Other credible evidence.
Note to paragraph (c) of this section: See
Supplement No. 1 to part 768 for additional
examples of supporting evidence.
(d) Upon receipt of a FAS or TAC certification,
BIS will review it to determine whether there is
sufficient evidence to support the belief that
foreign availability may exist. If BIS determines
the FAS or TAC certification is lacking in
supporting evidence, BIS will seek additional
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Foreign Availability Determination Procedures and Criteria

evidence from appropriate sources, including the
claimant or TAC. BIS will initiate the assessment
when it determines that it has sufficient evidence
that foreign availability may exist. Claimant and
TAC certified assessments will be deemed to be
initiated as of the date of such determination.
(e) Claimants and TACs are advised to review
the foreign availability assessment criteria
described in §768.6 of this part and the examples
of evidence described in Supplement No. 1 to part
768 when assembling supporting evidence for
inclusion in the FAS or TAC certification.

§768.6

Part 768Spage 6

of foreign availability, BIS will notify the
claimant or TAC that it is initiating the
assessment.
(2) BIS will publish a Federal Register notice of
the initiation of any assessment.
(3) BIS will notify the Departments of Defense
and State, the intelligence community, and any
other departments, agencies and their contractors
that may have information concerning the item on
which BIS has initiated an assessment. Each such
department, agency, and contractor shall provide
BIS all relevant information concerning the item.
BIS will invite interested departments and
agencies to participate in the assessment process
(see paragraph (e) of this section).

CRITERIA
(b) Data gathering
BIS will evaluate the evidence contained in a FAS
or TAC certification and all other evidence
gathered in the assessment process in accordance
with certain criteria that must be met before BIS
can recommend a positive determination to the
Secretary. The criteria are defined in §768.1(d)
of this part. In order to initiate an assessment,
each FAS and TAC certification should address
each of these criteria. The criteria are statutorily
prescribed and are:
(a) Available-in-fact;
(b) Non-U.S. source;
(c) Sufficient quantity; and

BIS will seek and consider all available
information that bears upon the presence or
absence of foreign availability, including but not
limited to that evidence described in §768.5(b)
and (c) of this part. As soon as BIS initiates the
assessment, it will seek evidence relevant to the
assessment, including an analysis of the military
needs of a selected country or countries, technical
analysis, and intelligence information from the
Departments of Defense and State, and other U.S.
agencies. Evidence is particularly sought from:
industry sources worldwide; other U.S.
organizations; foreign governments; commercial,
academic and classified data bases; scientific and
engineering research and development
organizations; and international trade fairs.

(d) Comparable quality.
(c) Analysis
§768.7
PROCEDURES
(a) Initiation of an assessment

BIS will conduct its analysis by evaluating
whether the reasonable and reliable evidence that
is relevant to each of the foreign availability
criteria provides a sufficient basis to recommend
a determination that foreign availability does or
does not exist.

(1) Once BIS accepts a FAS or TAC certification
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Foreign Availability Determination Procedures and Criteria

(d) Recommendation and determination
(1) Upon completion of each assessment, BIS, on
the basis of its analysis, will recommend that the
Secretary make a determination either that there is
or that there is not foreign availability, whichever
the evidence supports. The assessment upon
which BIS bases its recommendation will
accompany the recommendation to the Secretary.

Part 768Spage 7

review to the appropriate departments and
agencies.
(5) The deadlines for determinations based on
self-initiated and TAC-initiated assessments are
different from the deadlines for claimant-initiated
assessments (see paragraphs (f)(2) and (f)(3) of
this section).
(e) Interagency review

(2) BIS will recommend on the basis of its
analysis that the Secretary determine that foreign
availability exists to a country when the available
evidence demonstrates that an item of comparable
quality is available-in-fact to the country, from
non-U.S. sources, in sufficient quantity so that
continuation of the existing national security
export control, or denial of the license application
in question on national security grounds, would
be ineffective in achieving its purpose. For a
controlled country, such control or denial is
"ineffective" when comparable items are
available-in-fact from foreign sources in
sufficient quantities so that maintaining such
control or denying a license would not be
effective in restricting the availability of items
that would make a significant contribution to the
military potential of any country or combination
of countries detrimental to the national security of
the United States.
(3) The Secretary will make the determination of
foreign availability on the basis of the BIS
assessment and recommendation; the Secretary's
determination will take into account the evidence
provided to BIS, the recommendations of the
Secretaries of Defense and State and any other
interested agencies, and any other information
that the Secretary considers relevant.
(4)
For all decontrol and denied license
assessments (under section 5(f)(3) of the EAA)
initiated by a FAS, the Secretary will make a
determination within 4 months of the initiation of
the assessment and will notify the claimant. The
Secretary will submit positive determinations for
Export Administration Regulations

BIS will notify all appropriate U.S. agencies and
Departments upon the initiation of an assessment
and will invite their participation in the
assessment process.
BIS will provide all
interested agencies and departments an
opportunity to review source material, draft
analyses and draft assessments immediately upon
their receipt or production. For claimant-initiated
assessments, BIS will provide a copy of all
positive recommendations and assessments to
interested agencies and departments for their
review following the Secretary's determination of
foreign availability.
For self-initiated and
TAC-initiated assessments, BIS will provide all
interested agencies an opportunity to review and
comment on the assessment.
(f) Notification
(1) No later than 5 months after the initiation of
an assessment based on a FAS (claimant
assessments), the Secretary will inform the
claimant in writing and will submit for
publication in the Federal Register a notice that:
(i) Foreign availability exists, and
(A) The requirement of a license has been
removed or the license application in question has
been approved; or
(B) The President has determined that for
national security purposes the export controls
must be maintained or the license application
must be denied, notwithstanding foreign
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Foreign Availability Determination Procedures and Criteria

availability, and that appropriate steps to
eliminate the foreign availability are being
initiated; or
(C) In the case of an item controlled
multilaterally under the former COCOM regime,
the U.S. Government will conduct any necessary
consultations concerning the proposed decontrol
or approval of the license with the former
COCOM regime for a period of up to 4 months
from the date of the publication of the
determination in the Federal Register (the U.S.
Government may remove the license requirement
for exports to non-controlled countries pending
completion of the former COCOM regime review
process); or
(ii) Foreign availability does not exist.
(2) For all TAC certification assessments, the
Secretary will make a foreign availability
determination within 90 days following initiation
of the assessment. BIS will prepare and submit a
report to the TAC and to the Congress stating
that:
(i) The Secretary has found foreign availability
and has removed the license requirement; or
(ii)
The Secretary has found foreign
availability, but has recommended to the
President that negotiations be undertaken to
eliminate the foreign availability; or
(iii) The Secretary has not found foreign
availability.
(3) There is no statutory deadline for assessments
self-initiated by the Secretary or for the resulting
determination. However, BIS will make every
effort to complete such assessments and
determinations promptly.

Part 768Spage 8

(g) Foreign availability to
controlled countries
When the Secretary determines that an item
controlled for national security reasons is
available to a controlled country and the President
does not issue a National Security Override
(NSO), BIS will submit the determination to the
Department of State, along with a draft proposal
for the multilateral decontrol of the item or for the
former COCOM regime approval of the license.
The Department of State will submit the proposal
or the license for former COCOM regime review.
The former COCOM regime will have up to 4
months for review of the proposal.
(h) Foreign availability to
non-controlled countries
If the Secretary determines that foreign
availability to non-controlled countries exists, the
Secretary will decontrol the item for export to all
non-controlled countries where it is found to be
available, or approve the license in question,
unless the President exercises a National Security
Override.
(i) Negotiations to eliminate
foreign availability
(1) The President may determine that an export
control must be maintained notwithstanding the
existence of foreign availability.
Such a
determination is called a National Security
Override (NSO) and is based on the President's
decision that the absence of the control would
prove detrimental to the United States national
security. Unless extended (as described in
paragraph (i)(7) of this section), an NSO is
effective for 6 months. Where the President
invokes an NSO, the U.S. Government will
actively pursue negotiations with the government
of any source country during the 6 month period
to eliminate the availability.
(2) There are two types of National Security

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Foreign Availability Determination Procedures and Criteria

Part 768Spage 9

Overrides:

NSO;

(i) An NSO of a determination of foreign
availability resulting from an assessment initiated
pursuant to section 5(f) of the EAA (claimant and
self-initiated assessments); and

(iii) A concise statement of the basis for the
President's decision; and

(ii) An NSO of a determination of foreign
availability resulting from an assessment initiated
pursuant to section 5(h) of the EAA
(TAC-certification assessments).
(3) For an NSO resulting from an assessment
initiated under section 5(f) of the EAA, the
Secretary of any agency may recommend that the
President exercise the authority under the EAA to
retain the controls or deny the license
notwithstanding the finding of foreign
availability.
(4) For an NSO resulting from an assessment
initiated under section 5(h) of the EAA, the
Secretary of Commerce may recommend that the
President exercise the authority under the EAA to
retain the controls notwithstanding the finding of
foreign availability.
(5) Under an NSO resulting from an assessment
initiated under section 5(f) of the EAA, the
Committee on Banking, Housing, and Urban
Affairs of the Senate and the Committee on
International Relations of the House of
Representatives will be notified of the initiation
of the required negotiations. The notice will
include an explanation of the national security
interest that necessitates the retention of controls.
(6) Under an NSO resulting from an assessment
initiated under section 5(f) of the EAA, BIS will
publish notices in the Federal Register consisting
of:
(i) The Secretary's determination of foreign
availability;

(iv) An estimate of the economic impact of the
decision.
(7) The 6 month effective period for an NSO may
be extended up to an additional 12 months if,
prior to the end of the 6 months, the President
certifies to Congress that the negotiations are
progressing, and determines that the absence of
the controls would continue to be detrimental to
the United States national security.
(8) After the conclusion of negotiations, BIS will
retain the control only to the extent that foreign
availability is eliminated. If foreign availability is
not eliminated, BIS will decontrol the item by
removing the requirement for a license for the
export of the item to the destinations covered by
the assessment.
To the extent that the
negotiations are successful and the foreign
availability is eliminated, BIS will remove the
license requirement for the export of the item to
any country that has agreed to eliminate foreign
availability.
(j) Changes in foreign availability
If BIS becomes aware of conditions, including
new evidence, that affect a previous
determination that foreign availability exists or
does not exist, BIS may review the conditions. If
BIS finds that the foreign availability previously
determined no longer exists, or that foreign
availability not earlier found now does exist, BIS
will make a recommendation to the Secretary of
Commerce for the appropriate changes in the
control. The Secretary of Commerce will make a
determination, and BIS will publish a Federal
Register notice of the determination.

(ii) The President's decision to exercise the
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Foreign Availability Determination Procedures and Criteria

§768.8
ELIGIBILITY OF EXPEDITED

LICENSING PROCEDURES FOR NON­

CONTROLLED COUNTRIES

(a) BIS determines the eligibility of an item for
expedited licensing procedures on the basis of an
evaluation of the foreign availability of the item.
Eligibility is specific to the items and the
countries to which they are found to be available.
(b) BIS will initiate an eligibility evaluation:
(1) On its own initiative;

Part 768Spage 10

Defense, State, and other interested agencies
provide to BIS and any other information that the
Secretary considers relevant.
(f) Within 30 days of the receipt of the FAS or
TAC certification, BIS will publish the
Secretary's determination in the Federal Register,
that the item will or will not be eligible for
expedited licensing procedures to the stated
countries and, where appropriate, amend
Supplement No. 2 to part 768.
(g) Following completion of a self-initiated
evaluation, BIS will be notified of the Secretary's
determination and, where appropriate,
Supplement No. 2 to part 768 will be amended.

(2) On receipt of a FAS; or
(3) On receipt of a TAC certification.
(c) Upon initiation of an eligibility evaluation
following receipt of either a FAS or TAC
certification, BIS will notify the claimant or TAC
of the receipt and initiation of an evaluation and
publish a Federal Register notice of the initiation
of the evaluation.
(d) The criteria for determining eligibility for
expedited licensing procedures are:

(h) Foreign availability submissions and TAC
certifications to initiate an expedited licensing
procedure evaluation must be clearly designated
on their face as a request for expedited licensing
procedure and must specify the items, quantities
and countries alleged eligible. Submissions and
certifications should be sent to:
! Department of Commerce
Bureau of Industry and Security
Room H-1093
14th Street and Pennsylvania Avenue, NW
Washington, DC 20230

(1) The item must be available-in-fact to the
specified non-controlled country from a foreign
source;

§768.9

(2) The item must be of a quality similar to that
of the U.S.-controlled item; and

APPEALS OF NEGATIVE FOREIGN
AVAILABILITY DETERMINATIONS

(3) The item must be available-in-fact to the
specified non-controlled country without effective
restrictions.

Appeals of negative determinations will be
conducted according to the standards and
procedures described in part 756 of the EAR. A
Presidential decision (NSO) to deny a license or
continue controls notwithstanding a determination
of foreign availability is not subject to appeal.

(e) Within 30 days of initiation of the evaluation,
the Secretary of Commerce will make a
determination of foreign availability on the basis
of the BIS evaluation and recommendation, taking
into consideration the evidence the Secretaries of
Export Administration Regulations

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Foreign Availability Determination Procedures and Criteria

§768.10
REMOVAL OF CONTROLS ON LESS
SOPHISTICATED ITEMS
Where the Secretary has removed national
security controls on an item for foreign
availability reasons, the Secretary will also

Export Administration Regulations

Part 768Spage 11

remove controls on similar items that are
controlled for national security reasons and whose
functions, technological approach, performance
thresholds, and other attributes that form the basis
for national security export controls do not
exceed the technical parameters of the item that
BIS has decontrolled for foreign availability
reasons.

May 4, 2007

Foreign Availability Determination Procedures and Criteria

Supplement No. 1 to Part 768Spage 1

EVIDENCE OF FOREIGN AVAILABILITY

This Supplement provides a list of examples of
evidence that the Bureau of Industry and Security
(BIS) has found to be useful in conducting
assessments of foreign availability. A claimant
submitting evidence supporting a claim of foreign
availability should review this list for suggestions
as evidence is collected. Acceptable evidence
indicating possible foreign availability is not
limited to these examples, nor is any one of these
examples, usually, in and of itself, necessarily
sufficient to meet a foreign availability criterion.
A combination of several types of evidence for
each criterion usually is required. A Foreign
Availability Submission (FAS) should include as
much evidence as possible on all four of the
criteria listed below. BIS combines the submitted
evidence with the evidence that it collects from
other sources. BIS evaluates all evidence, taking
into account factors that may include, but are not
limited to: information concerning the source of
the evidence, corroborative or contradictory
indications, and experience concerning the
reliability or reasonableness of such evidence.
BIS will assess all relevant evidence to determine
whether each of the four criteria has been met.
Where possible, all information should be in
writing. If information is based on third party
documentation, the submitter should provide such
documentation to BIS. If information is based on
oral statements a third party made, the submitter
should provide a memorandum of the
conversation to BIS if the submitter cannot obtain
a written memorandum from the source. BIS will
amend this informational list as it identifies new
examples of evidence.
(a) Examples of evidence of
foreign availability
The following are intended as examples of
evidence that BIS will consider in evaluating
foreign availability.
BIS will evaluate all
evidence according to the provisions in §768.7(c)
of this part in order for it to be used in support of
Export Administration Regulations

a foreign availability determination. This list is
illustrative only.
(1) Available-in-fact:
(i) Evidence of marketing of an item in a
foreign country (e.g., an advertisement in the
media of the foreign country that the item is for
sale there);
(ii) Copies of sales receipts demonstrating
sales to foreign countries;
(iii) The terms of a contract under which the
item has been or is being sold to a foreign
country;
(iv) Information, preferably in writing, from an
appropriate foreign government official that the
government will not deny the sale of an item it
produces to another country in accordance with
its laws and regulations;
(v) Information, preferably in writing, from a
named company official that the company legally
can and would sell an item it produces to a
foreign country;
(vi) Evidence of actual shipments of the item to
foreign countries (e.g., shipping documents,
photographs, news reports);
(vii) An eyewitness report of such an item in
operation in a foreign country, providing as much
information as available, including where
possible the make and model of the item and its
observed operating characteristics;
(viii) Evidence of the presence of sales
personnel or technical service personnel in a
foreign country;
(ix) Evidence of production within a foreign
country;
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Foreign Availability Determination Procedures and Criteria

Supplement No. 1 to Part 768Spage 2

(x) Evidence of the item being exhibited at a
trade fair in a foreign country, particularly for the
purpose of inducing sales of the item to the
foreign country;

in serial production;

(xi) A copy of the export control laws or
regulations of the source country, showing that
the item is not controlled; or

(iii) Evidence that a foreign country is
marketing in the specific country an item of its
indigenous manufacture;

(xii) A catalog or brochure indicating the item
is for sale in a specific country.

(iv) Evidence of foreign inventories of the
item;

(2) Foreign (non-U.S.) source:

(v) Evidence of excess capacity in a foreign
country's production facility;

(i) Names of foreign manufacturers of the item
including, if possible, addresses and telephone
numbers;
(ii) A report from a reputable source of
information on commercial relationships that a
foreign manufacturer is not linked financially or
administratively with a U.S. company;
(iii) A list of the components in the U.S. item
and foreign item indicating model numbers and
their sources;
(iv) A schematic of the foreign item identifying
its components and their sources;

(ii) Evidence that the item or its product is
used in civilian applications in foreign countries;

(vi) Evidence that foreign countries have not
targeted the item or are not seeking to purchase it
in the West;
(vii) An estimate by a knowledgeable source of
the foreign country's needs; or
(viii) An authoritative analysis of the
worldwide market (i.e., demand, production rate
for the item for various manufacturers, plant
capacities, installed tooling, monthly production
rates, orders, sales and cumulative sales over 5-6
years).
(4) Comparable quality:

(v) Evidence that the item is a direct product
of foreign technology (e.g., a patent law suit lost
by a U.S. producer, a foreign patent);
(vi) Evidence of indigenous technology,
production facilities, and the capabilities at those
facilities; or
(vii) Evidence that the parts and components of
the item are of foreign origin or are exempt from
U.S. licensing requirements by the parts and
components provision §732.4 of the EAR.
(3) Sufficient quantity:
(i) Evidence that foreign sources have the item
Export Administration Regulations

(i) A sample of the foreign item;
(ii) Operation or maintenance manuals of the
U.S. and foreign items;
(iii) Records or a statement from a user of the
foreign item;
(iv) A comparative evaluation, preferably in
writing, of the U.S. and foreign items by, for
example, a western producer or purchaser of the
item, a recognized expert, a reputable trade
publication, or independent laboratory;
(v)

A

comparative

list

identifying, by
May 4, 2007

Foreign Availability Determination Procedures and Criteria

manufacturers and model numbers, the key
performance components and the materials used
in the item that qualitatively affect the
performance of the U.S. and foreign items;
(vi) Evidence of the interchangeability of U.S.
and foreign items;
(vii) Patent descriptions for the U.S. and
foreign items;
(viii) Evidence that the U.S. and foreign items
meet a published industry, national, or
international standard;

Export Administration Regulations

Supplement No. 1 to Part 768Spage 3

(ix) A report or eyewitness account, by
deposition or otherwise, of the foreign item's
operation;
(x) Evidence concerning the
manufacturers' corporate reputation;

foreign

(xi) Comparison of the U.S. and foreign end
item(s) made from a specific commodity, tool(s),
device(s), or technical data; or
(xii) Evidence of the reputation of the foreign
item including, if possible, information on
maintenance, repair, performance, and other
pertinent factors.

May 4, 2007

Foreign Availability Determination Procedures and Criteria

Supplement No. 2 to Part 768

ITEMS ELIGIBLE FOR EXPEDITED LICENSING PROCEDURES

[RESERVED]

Export Administration Regulations

May 4, 2007