Court Blocks Transfer of 3D Gun Printing Technology Controls From State to Commerce
Export controls over technology and software used for the 3D printing of firearms will not transition from the State Department to the Commerce Department after a Washington court granted a request to block the Trump administration from completing the transfer. The court, whose March 6 order temporarily blocked portions of a January final rule to transfer the controls, suggested the administration likely violated notice-and-comment standards and pointed to the “grave reality” the transfer might have on the proliferation of 3D printed guns. The decision stemmed from a January request (see 2001240047 and 2002070043) filed by 20 states and Washington, D.C., to urge the court to vacate the final transfer rules, which were scheduled to take effect March 9 (see 2001170030).
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The injunction will block the transfer of the controls as the “multistate lawsuit continues,” Washington's attorney general said March 9. “The proliferation of 3-D gun files on the internet likely renders ineffective arms embargoes, export controls, and other measures used to restrict the availability of uniquely dangerous weapons sought by those seeking to commit acts of terrorism or other serious crime,” the court said. “The Court finds that the balance of equities and the public interests tip sharply in the States’ favor.”
In a March 7 guidance, the State Department’s Directorate of Defense Trade Controls specified that the order blocks the transfer “insofar as it alters the status quo restrictions” relating to 3D printing of guns. As a result, the DDTC said those controls will remain on the U.S. Munitions List instead of being transferred to the Commerce Control List, adding that activities surrounding 3D printing of guns will continue to be subject to the International Traffic in Arms Regulations. “All other items” mentioned in the final rule will be transferred to the CCL as scheduled, the DDTC said. The agency said it will release “further guidance” relating to this change “as appropriate.” The Bureau of Industry and Security also issued a notice clarifying that it will not have jurisdiction over export controls of 3D printing of guns. BIS said all related questions and 3D printing license requests should be directed to the State Department.
In its order, the court suggested the administration may have violated notice-and-comment standards because it did not give “any indication that a specific regulation would apply to the online dissemination of 3-D gun files” before it published the final rules. The court said the change “seemingly” came “out of left field.” As a result, the court agreed with the states’ argument that “they had no opportunity to comment on a scheme that applies specifically to 3-D gun files.”
In addition, the administration was wrong in its argument for why the court should dismiss the states’ request to temporarily block the transfer, the court said. “The federal defendants have framed this dispute as the States attacking whether a particular item is on the Munition List, a matter of policy entrusted to Congress and the President. This is incorrect,” the court said.” The States again are challenging whether federal agencies complied with the [Administrative Procedure Act] in promulgating the Final Rules.” The court said that challenge is “neither a political question nor one committed to the agency’s discretion.”
The court also pointed to a 2015 case between Defense Distributed and the State Department, wherein Defense Distributed challenged the administration's authority to regulate 3D printing of guns. In that case, the court noted, the State Department argued that exports of certain 3D gun files would “cause serious harm to U.S. national security” and even said any “available alternatives clearly would be ineffective at preventing the broad circumvention of export controls for munitions technology.” The court said that reasoning seemingly contradicts the administration's current argument. “The record evidence fails to explain the deviation from the State Department’s prior determination that controlling certain 3-D gun files under ITAR was necessary to further world peace and national security,” the court said.