Supplement No. 1 to Part 768 - Evidence of Foreign Availability
15:2.1.3.4.43.0.1.11.86 :
Supplement No. 1 to Part 768 - 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 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;
(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;
(xi) A copy of the export control laws or regulations of the
source country, showing that the item is not controlled; or
(xii) A catalog or brochure indicating the item is for sale in a
specific country.
(2) Foreign (non-U.S.) source:
(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;
(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 in serial
production;
(ii) Evidence that the item or its product is used in civilian
applications in foreign countries;
(iii) Evidence that a foreign country is marketing in the
specific country an item of its indigenous manufacture;
(iv) Evidence of foreign inventories of the item;
(v) Evidence of excess capacity in a foreign country's
production facility;
(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:
(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 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;
(ix) A report or eyewitness account, by deposition or otherwise,
of the foreign item's operation;
(x) Evidence concerning the foreign manufacturers' corporate
reputation;
(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.