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Over the past two years, the Trump administration has attempted to change the export controls for small arms, including rifles, handguns, and assorted technology like rifle scopes and ammunition. Historically, small arms were placed on the United States Munitions List (USML). Created by the Arms Export Control Act (AECA) and overseen by the State Department, the USML controls the export of weapons and related technology, such as missiles and chemical agents, and any potential exporters are required to complete a list of registration and logistical requirements. Arguing that small arms are essentially commercial goods because of their accessibility in the U.S., the Trump administration has transferred the export control of small arms to the Commerce Control List (CCL), a separate export list run by the Department of Commerce with much looser restrictions. We previously discussed this transition here.
After undergoing an extensive period of notice and comment from the public, the State Department published the final rule outlining the change in export regimes on Jan. 23. That rule and the accompanying export regulations went into effect on March 9. The previously regulated small arms are now included on the CCL, except for technical data and blueprints for 3-D weapons that are digitally transmissible and ready for insertion into 3-D printers. Judge Richard Jones, of the U.S. District Court for the Western District of Washington, temporarily prevented those items from being removed from the USML on March 6 by issuing a preliminary nationwide injunction in State of Washington v. United States Department of State. We address the most important issues below.
The court’s ruling came as a result of two separate rounds of litigation over the export of the software and printable blueprints for 3-D guns. First, Defense Distributed—a company dedicated to the free trade of firearms around the world through selling blueprints for 3-D weapons—sued the State Department in 2015, demanding the right to post its files on the internet without restriction. In 2018, State settled with Defense Distributed and, as part of that settlement, agreed to remove 3-D weapons software and blueprints from the USML.
Shortly thereafter, 19 different states sued State in federal court in Seattle, arguing that the manner in which it removed 3-D gun blueprints from the USML was arbitrary and capricious in violation of the Administrative Procedure Act (APA). The trial judge in that case, Judge Robert Lasnick, agreed and, in November 2019, ruled for the states. Notwithstanding that decision, the Trump administration moved ahead with the transfer and on Jan. 23, the day that State published the final rule, the states filed suit again, requesting a preliminary injunction against the move of 3-D gun blueprints to the CCL. Judge Jones ordered that injunction on March 6, preliminarily finding in favor of the states on numerous grounds.
Judge Jones’s order is a preliminary injunction, meaning that he determined only that the plaintiff states are likely to succeed on the merits of their claims and that they are likely to suffer irreparable harm if the rule change moves forward. A preliminary injunction is temporary by definition, and this case will continue to be litigated unless the parties settle out of court.
Failure to Comply With the APA’s Notice and Comment Procedures
As the court order notes, the APA requires federal agencies to provide the public with notice and meaningful opportunity to comment on proposed changes to administrative rules. The court found that the State Department had likely failed to meet these requirements because, when it published the initial notice of the proposed rule change for public comment on May 24, 2018, it did not mention specifically that 3-D guns or 3-D gun blueprints would be removed from the USML and transferred to Commerce’s jurisdiction.
The public comment period closed on July 9, 2018. The next day, the settlement between the State Department and Defense Distributed was made publicly available, revealing for the first time that the proposed rule change had specific implications for 3-D guns. Per the settlement, the State Department had agreed to publish notice of a rule change and ultimately adopt a final rule that would remove 3-D gun blueprints from the USML. Moreover, the department agreed to authorize a temporary modification to the USML allowing 3-D gun blueprints to immediately be approved for public distribution while the notice and comment period was ongoing. The states argued that they had not had an opportunity to meaningfully comment on this “hidden-but-intended” aspect of the rules.
In line with the settlement terms, the final rule published on Jan. 23 included a substantive change that explicitly gave Commerce jurisdiction over 3-D gun blueprints. The court characterized this change as “seemingly com[ing] out of left field” and ruled that the states were likely to succeed on the merits of their claim that State had failed to follow proper notice and comment procedures.
Failure to Satisfy the APA’s Arbitrary and Capricious Standard
Next, the court addressed whether the department's decision to remove 3-D gun blueprints from the USML was “arbitrary and capricious.” In evaluating agency decisions for arbitrariness and capriciousness, courts analyze whether “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”
At issue in this case were the relevant congressional factors underlying the AECA, namely world peace, national security and foreign policy. The State Department defended its decision to remove 3-D gun blueprints from the USML by arguing that they “do not confer a critical military or intelligence advantage.” However, the court found that there was sufficient evidence in the record to indicate that State had failed to consider the other relevant congressional factors: “the impact on world peace and national security.”
Of particular importance in the court’s assessment was the department's own position from mid-2018 that “significant national security concerns warranted subjecting 3-D gun blueprints to” International Traffic in Arms Regulations (ITAR), which would require placement on the USML. When articulating its decision to remove 3-D gun blueprints from the USML, and therefore from ITAR compliance, the department presented no evidence addressing its previous findings or other reasoning to justify that change in policy. As a result, the court concluded that the states were also likely to succeed on the merits of their claim that the department's decision to remove 3-D gun blueprints from the USML was arbitrary and capricious.
Balance of Equities and the Public Interest Weighed Against the Government
To issue a preliminary injunction, the court needed to consider the effects of the injunction on the parties. The State Department argued that the injunction would harm national security by forcing it to focus on 3-D guns and ignore export controls on more sensitive weapons and military technology. The court found that argument unpersuasive in light of department’s previous position that 3-D guns posed a sufficient national security concern to warrant control under ITAR. In favor of the states, the court noted that the proliferation of 3-D guns would “likely rende[r] 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 crimes.” In light of such national security concerns, the court held that “the balance of equities and the public interests tip sharply in the states’ favor.”
Lastly, based on the evidence the states presented, including findings presented in the previous litigation and those articulated above, Judge Jones affirmed that the states had sufficiently shown that they would suffer irreparable harm if 3-D gun blueprints became widely available on the internet due to negative implications for national security and public safety.
Given that Judge Jones’s ruling was only a preliminary injunction, this case will continue to be litigated on the merits of the two sides’ arguments. It remains to be seen if State will continue the litigation, potentially to trial, or attempt to comply with the court’s initial findings by altering the final rule to keep 3-D gun blueprints on the USML.