Under the EAR, an export is a shipment or transmission of an item out of the United States, and also the release of "technology" or source code to a foreign person inside the United States. A reexport is a shipment or transmission of an item subject to the EAR from one foreign country to another, or a release of technology or source code abroad to a foreign person from a country other than the one where the release happens. A transfer (in-country) is a change in end use or end user of an item within the same foreign country. The reexport vs export label decides which licence rules apply, and those rules reach only items subject to the EAR: U.S.-origin items wherever located (apart from the exclusions in 734.3(b)) and some foreign-made items.
The definitions are in 15 CFR 734.13 to 734.16, with carve-outs in 734.18 and 734.20. BIS adopted these definitions in a June 2016 rule, 81 FR 35586, which took effect on 1 September 2016.
| Term | EAR section | What triggers it | Hypothetical example |
|---|---|---|---|
| Export | 734.13 | Shipment or transmission out of the United States, or release of technology or source code to a foreign person in the United States | A U.S. maker ships a motor controller to a customer in Canada |
| Reexport | 734.14 | Shipment or transmission from one foreign country to another, or release abroad of technology or source code to a foreign person from a different country | A German distributor sells U.S.-made test equipment to a buyer in Poland |
| Transfer (in-country) | 734.16 | Change in end use or end user within the same foreign country | A Malaysian company sells its U.S.-origin analyser to another Malaysian company |
What counts as an export under the EAR?
Section 734.13(a) lists three kinds of export:
- An actual shipment or transmission out of the United States, "including the sending or taking of an item out of the United States, in any manner". That includes a drawing emailed to a supplier abroad and a laptop in a traveller's bag.
- Releasing or otherwise transferring "technology" or source code (object code is excluded) to a foreign person in the United States. This is the deemed export. Under 734.13(b) it is treated as an export to the person's most recent country of citizenship or permanent residency.
- A person in the United States transferring registration, control or ownership of a spacecraft subject to the EAR. For spacecraft that provide space-based logistics, assembly or servicing (those not eligible for License Exception STA) this covers a transfer to a person in or a national of any other country; for any other spacecraft, only to a person in or a national of a Country Group D:5 country.
Section 734.13(c) adds a transit rule. An export that passes through one or more countries on its way to a destination is an export to that final destination. A hypothetical shipment from Texas to Kazakhstan routed through a German port is an export to Kazakhstan, and the licence check is done for Kazakhstan.
A deemed export depends on "release", defined in 734.15 as visual or other inspection by a foreign person that reveals technology or source code, or oral or written exchanges of it with a foreign person, in the United States or abroad. The rules for employees and visitors are in our guide to deemed exports and foreign nationals. Research institutions should also read university export controls and fundamental research.
What is a reexport?
Section 734.14(a) applies the same logic one step further out. A reexport is any of the following:
- An actual shipment or transmission of an item subject to the EAR from one foreign country to another foreign country, including sending or taking it in any manner.
- Releasing or otherwise transferring technology or source code subject to the EAR to a foreign person of a country other than the foreign country where the release happens. This is a deemed reexport, attributed under 734.14(b) to the person's most recent country of citizenship or permanent residency.
- A person outside the United States transferring registration, control or ownership of a spacecraft subject to the EAR, on the same spacecraft and country terms as the export rule.
Take a hypothetical distributor in Germany that buys U.S.-made test equipment and sells part of the stock to a customer in Poland. The shipment from Germany to Poland is a reexport. If the same distributor shows controlled U.S.-origin design technology to a Brazilian engineer at its Munich office, that is a deemed reexport to Brazil, unless 734.20 applies. Section 734.20 lists releases by entities outside the United States that are not deemed reexports, such as a release by an entity authorised to receive the technology or source code, where the entity knows that the person's most recent country of citizenship or permanent residency is one to which export from the United States would need no licence or would qualify for a License Exception. As with exports, a reexport routed through a third country is a reexport to the final destination (734.14(c)).
Reexport vs export: what changes in the licence analysis
The inputs are the same for both: the ECCN, the ultimate destination, the end user and the end use, with the ECCN's reasons for control read against the Commerce Country Chart. What differs is who acts and which prohibition applies.
General Prohibition One, in 736.2(b)(1), says you may not, without a licence or License Exception, export any item subject to the EAR, or reexport any item of U.S. origin, where the ECCN's reason for control and the Country Chart require a licence for the destination. A foreign-made item that is subject to the EAR because of its U.S. content falls under General Prohibition Two instead, and a foreign-produced direct product under General Prohibition Three.
The prohibition is addressed to whoever exports or reexports, and for a reexport that is normally the company abroad that ships the item on. The BIS page Guidance on reexports, exports from abroad, and transfers (in-country) tells companies outside the United States that a reexport may need a BIS licence and that they can apply through SNAP-R. Following local export law is no substitute: 734.12 says compliance with a foreign law does not relieve anyone of the EAR.
On classification, the same BIS page says that when you reexport U.S.-origin items in the form received, you use the classification of the U.S.-origin item, so the supplier's ECCN travels with the goods. It also says a U.S.-origin item remains subject to the EAR however many times it is reexported, transferred or sold. For the full test on a given ECCN and destination, see when an export licence is required.
Do U.S. export controls apply to shipments between two non-U.S. countries?
They do whenever the item is subject to the EAR. Section 734.3(a) sets out what that covers:
- all items in the United States, including in a U.S. Foreign Trade Zone or moving in transit through the United States from one foreign country to another
- all U.S.-origin items wherever located
- foreign-made items that incorporate controlled U.S.-origin commodities, or are bundled or commingled with controlled U.S.-origin software or technology, above the de minimis levels in 734.4, or in any quantity where 734.4(a) says so
- certain foreign-produced direct products of specified U.S. technology or software, and products of certain plants, under 734.9
Consider a hypothetical shipment from Singapore to Vietnam of a Singapore-made product with no U.S. content and no link to a foreign direct product rule. It is outside the EAR. Build in a controlled U.S.-made module above the de minimis level and the product becomes subject to the EAR, so the same shipment falls under General Prohibition Two and may need a licence. The thresholds are in the EAR de minimis rule, and the direct product tests in the foreign direct product rule guide.
You will also see the phrase "export from abroad". The EAR uses it in General Prohibitions Two and Three and in parts 742, 744 and 746, but neither part 734 nor part 772 defines it. ECCN.help suggests reading it as the shipment of a foreign-made item that is subject to the EAR out of the country where it was produced, since the provisions that use it deal with foreign-made items and list it beside reexports. General Prohibition Two applies the same test to both.
What is a transfer (in-country)?
Section 734.16 defines a transfer (in-country) as "a change in end use or end user of an item within the same foreign country". "In-country transfer" means the same thing. Nothing crosses a border.
Take a hypothetical Malaysian contract manufacturer that received a U.S.-origin spectrum analyser for its own test lab and later sells it to another Malaysian company. The end user has changed, so the sale is a transfer (in-country). If the manufacturer keeps the analyser but moves it from consumer electronics testing to work on a military programme, the end use has changed, and that is also a transfer (in-country) although the owner is the same.
Two other texts use looser wording. Part 772 defines plain "transfer" as "a shipment, transmission, or release of items subject to the EAR either within the United States or outside the United States". The BIS reexport guidance page, last updated on 30 October 2015 and so before the 2016 definitions took effect, describes an in-country transfer as a shipment, transmission or release between persons within one foreign country. For a compliance decision, apply the 734.16 text.
General Prohibition One covers exports and reexports only, and most part 742 licence requirements are written the same way; 742.4(a)(1), for instance, requires a licence "for exports and reexports" of NS Column 1 items. Transfers (in-country) are reached mainly by these provisions:
- the end-use and end-user rules in part 744, through General Prohibition Five (736.2(b)(5)); each part 744 section states whether it covers transfers (in-country)
- the Entity List, under which 744.11(a) requires a licence, to the extent the entry specifies, to export, reexport or transfer (in-country) any item subject to the EAR when a listed entity is a party
- embargoes and special controls in part 746, through General Prohibition Six
- the foreign direct product rules, through General Prohibition Three
- denial orders, which under General Prohibition Four can prohibit some transfers within a single country
- the terms of an existing licence, which under 750.7(a)(1) covers only the items, end uses and parties described in the application
A few part 742 controls name transfers (in-country) directly, such as 742.4(a)(4) for certain semiconductor manufacturing equipment and associated software and technology to or within Macau or Country Group D:5. EAR99 items have no reasons for control on the Country Chart, so for a local resale of an EAR99 item the question is whether one of the provisions above applies, for example a listed party, a part 744 end use or a part 746 control. The BIS guidance notes that a licence is required in most instances to reexport or transfer (in-country) any item, EAR99 included, to a party on the Entity List.
Activities that are not exports, reexports or transfers
Section 734.18(a) lists five activities that fall outside all three definitions:
- Launching a spacecraft, launch vehicle, payload or other item into space.
- Transmitting or transferring technology or software to a person in the United States who is not a foreign person, from another person in the United States.
- Transmitting or transferring technology or software within the same foreign country only among persons who are not foreign persons, as long as this does not result in a release to a foreign person or to a person prohibited from receiving it.
- Shipping, moving or transferring items between or among the United States, the District of Columbia, Puerto Rico, the Northern Mariana Islands and any U.S. territory, dependency or possession listed in the Census Bureau's Schedule C.
- Sending, taking or storing technology or software that is unclassified, secured with end-to-end encryption and with FIPS 140-2 compliant cryptographic modules (or its successors) backed by key management and other procedures in line with current NIST guidance, or equally or more effective means, and not intentionally stored in a Country Group D:5 country.
The third item is narrower than it looks. Part 772 defines a foreign person as anyone who is not a U.S. citizen, lawful permanent resident or protected individual, and any entity not incorporated or organised to do business in the United States. Two U.S. citizens working in Japan can pass technology between themselves under 734.18(a)(3), provided no foreign person gets it. A Japanese subsidiary and its local staff cannot rely on it.
For the fifth item, a note says data in transit over the internet is not stored, and 734.18(c) says access to technology or software in encrypted form meeting (a)(5) is not a release or export. Cloud storage and SaaS are covered in our guide to cloud computing and encryption under the EAR.
What to do now
Before a U.S.-origin item, or an item with U.S. content, moves on from your site outside the United States, record where it is going, who will use it and for what. If a U.S.-origin item goes on to another country in the form received, that is a reexport, so check the supplier's ECCN against the Country Chart for the new country. A foreign-made item with U.S. content needs its own classification and a de minimis calculation first. A local sale or a change of use is a transfer (in-country), so screen the new party and check the part 744 end-use rules. If you share controlled technology with staff, note each person's most recent citizenship or permanent residency and check 734.14(b) and 734.20. Keep the supplier's ECCN and your reasoning with the transaction record.
Using ECCN.help for reexports and transfers
ECCN.help applies rules taken from the published EAR, with no language model, and each answer names the entry and paragraph that decided it. Its licence check reads an ECCN and a destination against the Commerce Country Chart and reports the reasons for control, with Part 740 licence exceptions and their conditions. Quick Search on the home page looks up ECCNs by product name in the CCL Index, and the guide to how the classification workflow runs explains the steps.
ECCN.help provides research and assistance, not legal advice. Verify every result against the current regulation before you rely on it.