The IT and Software Services Determination includes an exception for services related to software subject to the EAR, where: the export to Russia of such software is authorized or licensed by the Department of Commerce (Commerce); or where such software is not subject to the EAR and where the export of such software would be eligible for a license exception or otherwise authorized by Commerce if it were subject to the EAR. IT consultancy and design services for such software or IT support services and cloud-based services for such software are excluded from the scope of the IT and Software Services Determination.
This means that U.S. persons can continue to provide, for example, IT support services and cloud-based services, including Software-as-a-Service (SaaS), for enterprise management software and design and manufacturing software (collectively, “Covered Software”), if such software is or would be authorized or licensed by Commerce. This exclusion includes providing such IT support and cloud-based services for the Covered Software that is excluded by Commerce from license requirements in 15 CFR 746.8(a)(12), including for exports, reexports, or transfers (in-country) to certain civil end users that are wholly owned subsidiaries, branches, sales offices, or joint ventures of companies headquartered in the United States or countries from Country Group A:5 and A:6 in supplement no. 1 to part 740 of the EAR. See 15 CFR 746.8(a)(12)(ii). Commerce’s amended regulations come into effect on September 16, 2024.
For guidance on whether specific software is excluded by Commerce for the purposes of the IT and Software Services Determination, please consult with Commerce’s Bureau of Industry and Security (BIS).