The Directorate of Defense Trade Controls (DDTC) issued a web notice on March 7, 2020 and a Federal Register notice on April 2, 2020 (85 Fed. Reg. 18445) explaining that: “All persons engaged in manufacturing, exporting, temporarily importing, brokering, or furnishing defense services related to ‘technical data and software directly related to the production of firearms or firearm parts using a 3D-printer or similar equipment’ must continue to treat such technical data and software as subject to control on the USML.” The notices described a federal district court order enjoining the Department of State “from implementing or enforcing the regulation entitled International Traffic in Arms Regulation: U.S. Munitions List Categories I, II, and III, 85 Fed. Reg. 3819 (Jan. 23, 2020) insofar as it alters the status quo restrictions on technical data and software directly related to the production of firearm and firearm parts using a 3D-printer or similar equipment.”
DDTC is aware of press statements and media reports inaccurately suggesting that, as a result of a recent opinion of the United States Court of Appeals for the Ninth Circuit in case no. 20-35391, 3D-printed firearm files, and in particular, related Computer Aided Design (CAD) data files, may now be legally posted on the internet for unlimited distribution. That is incorrect. As explained below, the district court’s injunction remains in place until the appellate process is complete. Consequently, any defense article subject to that injunction remains regulated by the Department of State on the United States Munitions List (USML). The information DDTC previously published in the Federal Register at 85 Fed. Reg. 18445 (Apr. 2, 2020) regarding the injunction therefore remains true: “All persons engaged in manufacturing, exporting, temporarily importing, brokering, or furnishing defense services related to ‘technical data and software directly related to the production of firearms or firearm parts using a 3D-printer or similar equipment’ must continue to treat such technical data and software as subject to control on the USML.”
Although the Ninth Circuit issued an opinion holding that the district court lacked jurisdiction to enter the preliminary injunction and remanding to the district court with instructions to dismiss the complaint, the preliminary injunction remains in effect until the mandate of the Ninth Circuit issues. Only once the Ninth Circuit issues its mandate will the preliminary injunction be vacated and the district court reassume jurisdiction such that it may dismiss the case. At that time, the entirety of the Department of State’s final rule published in the Federal Register at 85 Fed. Reg. 3819 will go into effect. Until that happens, the status quo continues.
Persons engaging in unauthorized exports of defense articles, including technical data, expose themselves to potential civil or criminal liability under the Arms Export Control Act (AECA) and International Traffic in Arms Regulations (ITAR).
For questions pertaining to the Department of Commerce’s regulation of 3D-printed firearm files, please consult the Department of Commerce, Bureau of Industry and Security (BIS) website. Please also refer to the Myths and Facts press release, dated January 23, 2020, on the BIS website, which states that “[c]ertain technology and software posted on the internet that is capable of 3-D printing firearms previously controlled by State will continue to be controlled by the Department of Commerce, meaning the U.S. Government will continue to maintain restrictions. Commerce’s controls under the EAR will help ensure that U.S. national security and foreign policy interests are not undermined by foreign persons’ access to firearms production technologies.” As has also been made clear in public court filings, the Department of Commerce’s regulations provide an equivalent level of control over that technical data and software as under the Department of State’s regulations.
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