As we reported in our previous Alert, a Ninth Circuit panel of judges vacated the 3D-printed gun files injunction on April 27, 2021. However, the appellate process is still not complete as the Ninth Circuit has yet to issue the mandate to dismiss the injunction. Until then, then injunction remains in place. The Directorate of Defense Trade Controls (DDTC) posted a notice on its website reminding industry that 3D-printed firearm files remain subject to the U.S. Munitions List (USML) until the District Court injunction is lifted. "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."

The notice goes on to explain, “[a]lthough 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.” In other words, DDTC continues to treat technical data and software directly related to the production of firearms or firearm parts using a 3D-printer or similar equipment as subject to the ITAR and control of the USML.

The Bureau of Industry and Security (BIS) has updated its FAQs for the Commerce Categories I-III (final rule). This nearly 70-page document provides a series of detailed questions and answers on firearms export-related matters ranging from how certain items are classified, whether various exceptions are available for firearm exports, and how AES entries should be made. We strongly encourage everyone in the firearm export industry to read these FAQs carefully as they are full of interesting tidbits, including a section that provides further insights on what items BIS intends to be captured by certain control paragraphs in ECCNs 0A501, 0A502, 0A504, 0A505, and 0A602.