For decades, the State Department asserted jurisdiction over exports of small arms and associated “technical data,” a category which included computer files for 3D printing firearms and firearm components. By denying the registration of entities seeking to post these 3D-printed firearm files online, the State Department effectively blocked the widespread public distribution of these files here and abroad.
But, through final regulations issued in January 2020, the Commerce Department assumed jurisdiction over exports of small arms and technical data. On the day the final rules were published, seventeen states sued the federal government to prevent the new regulations from taking effect and alleging that the rules would not be effective in preventing unlimited distribution of 3D-printed firearm files.1Complaint for Declaratory and Injunctive Relief, Washington v. United States Dep’t of State, 20-cv-00111-RAJ (W.D. Wash. Jan. 23, 2020). In March 2020, Judge Richard Jones of the Western District of Washington granted an injunction that prevented the federal government from implementing or enforcing the final rules “insofar as it alters the status quo restrictions on technical data and software directly related to the production of firearms or firearm parts using a 3D-printer or similar equipment.”2Washington v. United States Dep’t of State, 443 F. Supp. 3d 1245, 1262-63 (W.D. Wash. 2020). Therefore, when the final rules took effect on March 9, 2020, 3D firearms files were not transferred to Commerce Department control.
On April 2, 2020, the State Department published a notice acknowledging the injunction and stating that it “must continue to treat such technical data and software as budget to control on the USML” while stating that all other items addressed by the final rules would move to Commerce’s jurisdiction.3International Traffic in Arms Regulations: U.S. Munitions List Categories; Preliminary Injunction Ordered by a Federal District Court, 85 Fed. Reg. 18,445 (Apr. 2, 2020). The government filed an appeal with the Ninth Circuit Court of Appeals in May 2020. On April 27 2021, a Ninth Circuit panel vacated the district court’s injunction. Pending further litigation and without other action from the Biden-Harris administration to preserve State Department controls, this decision will shift export controls over 3D firearm files to the Commerce Department.
The shortcomings of current Commerce Department rules.
As the States have argued before the Ninth Circuit, moving control over 3D gun files to the Commerce Department “would effectively deregulate” them.4See States’ Answering Brief at 19, Washington v. Department of State, No. 20-35391 (9th Cir. Sept. 2, 2020). First, under the Commerce Department’s Export Administration Regulations (“EAR”), any item that is “published” is not subject to export controls. Second, the final rules issued by the Commerce Department were inadequate in making an exception for 3D gun files to the general rule that “published” items are not subject to export controls. The exception to the publication rule provides:
The following remains subject to the EAR: ‘‘software’’ or ‘‘technology’’ for the production of a firearm, or firearm frame or receiver, controlled under ECCN 0A501, 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.515 C.F.R. 734.7(c) (as amended by Control of Firearms, Guns, Ammunition and Related Articles the President Determines No Longer Warrant Control Under the United States Munitions List (USML), 85 Fed. Reg. 4,136, 4,172-73 (Jan. 23. 2020)).
As the States have argued, this regulation is too narrow. Under it, Commerce “will lack jurisdiction over files that can be converted to [AMF or G-code] using commonly available 3D-printing software (such as CAD design files).”6States’ Answering Brief at 23. Therefore, “anyone could post CAD design files online, along with a link to free software that could promptly convert the files into a machine-readable format.”7Id. at 23-24. The States warned, “This gaping loophole will result in widespread, easy access to downloadable guns with no restrictions,” noting that some files are in CAD file formats that would not be regulated under the final rules.8Id. at 24. Furthermore, the regulation only applies to files “made available by posting on the internet in an electronic format” which would seem to allow for posting an advertisement online offering 3D firearm files and the delivery of those files by email.9See id. at. 6 Finally, while the State Department’s export controls require approval from the government to place an item into the “public domain,” Commerce rules generally allow publication without pre-approval. Any file that has already been published is automatically not subject to the EAR.10Id. at 24-25.
How the Commerce Department can address the shortcomings in the current rules and more effectively regulate 3D firearm files.
The Commerce Department is well-situated to take quick action to amend its regulations to more effectively regulate exports of 3D firearm files. The agency has express statutory authority to establish export compliance standards.1150 U.S.C. § 4814(b)(2). Since the enactment of the Export Control Reform Act in 2018, the Commerce Department is exempt from the notice-and-comment procedures12An agency typically needs to publish a notice of proposed rulemaking in the Federal Register and give interested persons an opportunity to comment before finalizing new or amended regulations. 5 U.S.C. 553(b), (c). that typically apply to new agency rules under the Administrative Procedure Act.13See 50 U.S.C. § 4821(a).
Therefore, nothing should stand in the way of the Commerce Department issuing an interim final rule in short order to address the shortcomings identified above and more effectively regulate 3D firearm files. That new rule must amend 15 C.F.R. § 734.7(c) by omitting the “ready for insertion” qualification that restricts coverage to files that are immediately ready to be inserted into a 3D printer. An amended Section 734.7(c) should also make clear that “‘software’ or ‘technology’ for the production of a firearm, or firearm frame or receiver” includes files that are emailed or otherwise made available to foreign persons. An interim final rule should aim for regulatory continuity with the State Department and make this objective explicit in a preamble to the regulatory amendment.
Alternatively, if the Commerce Department believes that the current version of 15 C.F.R. § 734.7(c) is broad enough to apply to any known versions of currently viable 3D firearm files, it should issue nonbinding guidance to that effect. That guidance would put 3D firearm file distributors on notice that they risk violating the Export Control Reform Act if they disseminate these files.