On January 23, 2020, the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of State issued two final rules, available here and here. The final rules outlined the removal of specifically-identified firearms, ammunition, accessories, and associated technical data from the United States Munitions List (“USML”) and the creation of new Export Control Classification Numbers (“ECCNs”) to classify those same items under the Commerce Control List (“CCL”). While most of the transfer of jurisdiction from State to Commerce proceeded on the original effective date of March 9, 2020, the jurisdictional transfer of International Traffic in Arms Regulations (“ITAR”) “technical data” files for 3D-printed firearms to BIS was enjoined the same day by the U.S. District Court for the Western District of Washington in a suit brought by 20 states and the District of Columbia.
In an opinion filed April 27, 2021 (Case No. 20-35391), the Ninth Circuit Court of Appeals vacated the injunction against the rule change. On May 26th, the Ninth Circuit issued the Mandate required to effectuate its opinion lifting the injunction and BIS quickly confirmed via updates to its Firearms Guidance and via a Federal Register Notice published June 1, 2021 that, as of May 26, 2021, “technology” and “software” for the production of firearms or firearm frames or receives (as more specifically defined in 15 C.F.R. § 734.7(c)) are “subject to the EAR” and are no longer controlled under the ITAR. That means that, as of May 26th, any such 3D printed firearm files that are posted online are no longer eligible for the EAR’s “publication” exception which would normally exempt such materials from the EAR. Instead, the EAR will view the posting of such “technology” and “software” to be “releases” to all destinations in the world and as a result the EAR will require licensing from BIS in order to post such materials.
In preparation for the Ninth Circuit’s issuance of the Mandate, BIS updated its Firearms Guidance with 12 additional FAQs (numbers 33-44). BIS emphasized and clarified several points relating to 3D printing of firearms, among them:
- No License Exceptions Available. No EAR license exceptions are available for such Internet posts of 734.7(c) “technology” or “software.” See FAQs 34 & 39.
- File Type Is Not Determinative. Any type of file that can be processed by a software program into an electronic format that constitutes executable code capable of producing an ECCN 0A501 item is “subject to the EAR” because it fits the parameters of 15 CFR 734.7(c). BIS stands ready to review such file types via the commodity classification request process. See FAQ 35.
- Pre-May 26 Internet Posts Now Require License. It does not matter when the “technology” or “software” was posted online—as of May 26, 2021, if posted online, it became “subject to EAR” and required a license to be posted there. See FAQ 37. Further, DDTC did not previously authorize the posting of any “technology” or “software” fitting the parameters of 15 CFR 734.7(c). See FAQ 38.
- Positive “Knowledge” Required to Prevent Worldwide “Release.” BIS presumes that posting on the Internet of 734.7(c) “technology” or “software” is a worldwide “release” unless the poster has positive “knowledge” that downloaders are only located in the United States or Canada and are only US or Canadian nationals. See FAQ 39.
- Policy of License Denial.7(c) “technology” and “software” submitted to BIS for a license are subject to a policy of denial—the most restrict license review policy under the EAR. See FAQ 41.
- “Reposts” By Others Subject to the Same Restrictions as Original Post. See FAQ 37.
For additional background on the transfer of small arms from the USML to the CCL, see Husch Blackwell’s original overview of the final rules.