On April 27, 2021, the U.S. Court of Appeals for the Ninth Circuit panel (“Panel”) filed its decision to vacate the preliminary injunction granted by the U.S. District Court for the Western District of Washington, which enjoined the U.S. Department of State (“DOS”) Final Rule removing 3D printed guns and associated files from the U.S. Munitions List (“USML”) (State of Washington, et al, vs. U.S. Department of State, et al; No. 20-35391 D.C. No. 2:20-cv-00111- RAJ). The Panel held that both the DOS and Department of Commerce (“DOC”) final rules that revised the U.S. Munitions List (“USML”) to remove certain firearms and related technology were judicially unreviewable because of the language in underlying acts implementing both the International Traffic and Arms Regulations (“ITAR”) and the Export Administration Regulations (“EAR”). Therefore, the Panel held that the lower court was precluded from issuing the preliminary injunction.

As we discussed in our March 6, 2020 Alert, the District Court issued a partial injunction to prevent portions of the revisions to the USML governing firearms and ammunition from taking effect. Specifically, the injunction prohibited the U.S. Departments of State and Commerce from implementing or enforcing any portions of the rules that had any effect on technical data or software directly related to the production of firearms or firearm parts using a 3D-printer or similar equipment. Consequently, such technology or software remained on the USML and subject to the ITAR.

What drove the litigation was the perceived threat of downloadable gun files and the alleged decontrol of 3D gun printing technology if such technology ceased to be subject to ITAR controls. Now, because of the Panel’s decision to vacate the injunction, such downloadable files and 3D gun printing technology is subject to the controls of the U.S. Department of Commerce (“DOC”) under the EAR. According to published reports, the subject 3D gun printing files were posted to the Internet as soon as court vacated the injunction.  

Interestingly, there appears to be very little response from the Plaintiff states attorneys general so far. One can only speculate as to why, but it may be that gun control advocates are awaiting the promised rules restricting “ghost guns” which are due to come out next week in accordance with President Biden’s directive. A leaked draft of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) proposed Notice of Proposed Rulemaking reveals that ATF intends to expand significantly the scope of the federal firearm laws by broadening what constitutes a controlled “firearm.” Extensive revisions to the term “frame or receiver” would capture partially completed frames or receivers, including the so-called “80%” market (also called “ghost guns”) and kits designed to or may be readily assembled, completed, converted, or restored to expel a projectile by the action of an explosive. We covered this in more detail in our most recent Alert of April 27, 2021. However, these new proposed regulations will not (and cannot) address export control-related issues because those are under the purview of DOS and DOC. As of the date of this alert, neither agency has issued any updates or guidance in the wake of the court's ruling.  

It is important to note that DOC maintains controls over the export of “software” or “technology” for the production of a firearm, or firearm frame or receiver, controlled under the Export Control Classification Number 0A501. Specifically, EAR §734.7(c) provides a carve out from the definition of “published” and keeps subject to the EAR such technology that is made available by posting on the internet in an electronic format, such as AMF or G-code, and is ready for insertion into a computer numerically controlled machine tool, additive manufacturing equipment, or any other equipment that makes use of the “software” or “technology” to produce the firearm frame or receiver or complete firearm. In other words, technology or software for the complete firearm, its frame, or its receiver are subject to DOC licensing requirements. Technology or software for parts and components of firearms, however, may be freely published to the Internet. DOC provides a full explanation on its rationale for this level of control in its response to public comment 7 in the Final Rule published January 23, 2020 (see 85 FR 4136 at 4139).

We are interested to see how this will play out. Some states have already taken steps to regulate so-called “ghost guns.” For example, California has state laws regulating the assembly and manufacture of “self-assembled firearms” by people who are not otherwise licensed to manufacture firearms. Since 2019, anyone who assembles a homemade gun in California must first apply to the California Department of Justice for a unique serial number or ID mark. Also, beginning in 2022, state laws will regulate the sale of unfinished frames and receivers. Only time will tell whether the forthcoming ATF proposed rule will try to address these issues, or if DOS or DOC move to further refine their respective regulations.