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Export Control Change on Software Delayed

Wednesday, February 01, 2017
Sandler, Travis & Rosenberg Trade Report

The Bureau of Industry and Security has postponed a change in export controls on certain software in light of President Trump’s Jan. 20 memorandum directing federal agencies to postpone for 60 days pending regulations that had not taken effect as of that date.

In a Nov. 25, 2016, final rule BIS amended the Export Administration Regulations to remove nuclear nonproliferation Column 2 license requirements from certain pressure tubes, pipes, fittings, pipe valves, pumps, numerically controlled machine tools, oscilloscopes, and transient recorders on the Commerce Control List. This rule also created four new Export Control Classification Numbers to maintain anti-terrorism controls on certain affected commodities and related software and technology.

BIS states that a consequence of the amendment of ECCN 3A992 to add certain oscilloscopes and transient recorders under new paragraphs 3A992.d through .g was that ECCN 3D991, which includes certain software for general purpose electronic equipment described in ECCN 3A992, then also controlled software for the development, production, or use of those devices. Such software had been classified and licensed under the designation EAR99 and its classification under ECCN 3D991 imposed a foreign policy control for anti-terrorism reasons. Because such controls must first be notified to Congress, BIS delayed implementation of this control until Jan. 31, 2017.

However, in light of the presidential memorandum, BIS now states that software specially designed for the development, production, or use of items previously controlled under ECCN 3A992 will continue to be classified and licensed under the designation EAR99 through March 21. As of March 22, such software will be classified and licensed under ECCN 3D991.

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