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:
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.