State of Washington et al v. United States Department of State et al

Filing 1

COMPLAINT FOR DECLARATORY AND INJUCTIVE RELIEF against All Defendants (Receipt # 0981-5414989), filed by State of Washington. (Attachments: #1 Exhibit 1-8, #2 Civil Cover Sheet, #3 Summons US Department of State, #4 Summons Michael Pompeo, #5 Summons Directorate of Defense Trade Controls, #6 Summons Mike Miller, #7 Summons Sarah Heidema, #8 Summons Defense Distributed, #9 Summons Second Amendment Foundation, Inc., #10 Summons Conn Williamson)(Rupert, Jeffrey)

Exhibit 1

DIY Guns: A Landmark Ruling Opens the Door for Homemade Firearms | WIRED

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A LANDMARK LEGAL SHIFT OPENS
PANDORA’S BOX FOR DIY GUNS
Cody Wilson makes digital files that let anyone 3-D print untraceable guns. The
government tried to stop him. He sued—and won.

FIVE YEARS AGO,

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DEFENSE DISTRIBUTED OPERATES

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AFTER HIS LAWYERS

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AFTER A TOUR

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More Great WIRED Stories

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CULTURE

I Made an Untraceable AR-15 'Ghost Gun' In My Office

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One Young Boy's Magnificent Obsession With Fans

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Crispr Can Speed Up Nature—and Change How We Grow Food

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Exhibit 2

1
2
3
4

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

5
6
7
8
9
10

STATE OF WASHINGTON; STATE OF
CONNECTICUT; STATE OF MARYLAND;
STATE OF NEW JERSEY; STATE OF NEW
YORK; STATE OF OREGON;
COMMONWEALTH OF
MASSACHUSETTS; COMMONWEALTH
OF PENNSYLVANIA; and DISTRICT OF
COLUMBIA
Plaintiffs,
v.

NO.
DECLARATION OF
MITZI JOHANKNECHT
IN SUPPORT OF PLAINTIFF’S
MOTION FOR TRO AND
PRELIMINARY INJUNCTION

Noting Date: August ___, 2018
11
12
13
14
15
16

UNITED STATES DEPARTMENT OF
STATE; MICHAEL R. POMPEO, in his
official capacity as Secretary of State;
DIRECTORATE OF DEFENSE TRADE
CONTROLS; MIKE MILLER, in his official
capacity as Acting Deputy Assistant Secretary
of Defense Trade Controls; SARAH
HEIDEMA, in her official capacity as Director
of Policy, Office of Defense Trade Controls
Policy; DEFENSE DISTRIBUTED; SECOND
AMENDMENT FOUNDATION, INC; and
CONN WILLIAMSON;

17
Defendants.
18
19
20
21
22
23

I, Mitzi Johanknecht, declare as follows:
1.

I am over the age of 18 and have personal knowledge of all the facts stated herein.

2.

I have been the Sheriff of King County, Washington since January 1, 2018.

3.

I have been a law enforcement officer for 33 years with the King County Sheriff’s

Office (KCSO). During my time as a law enforcement officer, I worked my way up the ranks
from deputy and have served in leadership roles in every division and location in the KCSO. As

24
DECLARATION OF MITZI
JOHANKNECHT IN SUPPORT OF
PLAINTIFF’S MOTION FOR TRO AND
PRELIMINARY INJUNCTION

1

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
[phone]

1

the Sheriff, I oversee a staff of 1,200 employees who are responsible for the public safety of

2

approximately 2.2 million people who live in King County, plus thousands of others who transit

3

to and through the county on a daily basis.

4

4.

As a law enforcement officer, I am very familiar with firearms. I have carried a

5

gun as part of my job for the last 33 years, have received instruction on a variety of weapons

6

including pistols and long guns, and have personally witnessed the damage that guns can do to

7

the human body if guns fall into the wrong hands.

8

5.

I am also familiar with Washington’s gun-safety laws, which prohibit certain

9

categories of persons from buying or possessing firearms. This group includes minors, persons

10

convicted of violent felonies, persons under the supervision of the Department of Corrections,

11

the mentally ill, and persons subject to a wide variety of protection orders, including domestic

12

violence, stalking and anti-harassment protection orders.

13

6.

Washington’s gun laws place a significant amount of responsibility on local law

14

enforcement. For example, the KCSO handles the vetting and granting of applications for

15

concealed pistol licenses, firearms dealer licenses, and alien firearms licenses for citizens living

16

in unincorporated areas of King County, as well as those municipalities for which the KCSO

17

contracts for law enforcement services. Information about such licensing is available on the

18

KCSO page of the King County website; for example:

19

https://kingcounty.gov/depts/sheriff/services/gun.aspx (last visited July 29, 2017);

20

https://kingcounty.gov/depts/sheriff/services/firearms-dealers.aspx (last visited July 29,

21

2017);

22

https://kingcounty.gov/depts/sheriff/services/alien-firearms-license.aspx (last visited

23

July 29, 2017).

24
DECLARATION OF MITZI
JOHANKNECHT IN SUPPORT OF
PLAINTIFF’S MOTION FOR TRO AND
PRELIMINARY INJUNCTION

2

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
[phone]

Exhibit 3

1
2
3
4

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

5
6
7
8
9
10
11
12
13
14
15
16

STATE OF WASHINGTON; STATE OF
CONNECTICUT; STATE OF MARYLAND;
STATE OF NEW JERSEY; STATE OF NEW
YORK; STATE OF OREGON;
COMMONWEALTH OF
MASSACHUSETTS; COMMONWEALTH
OF PENNSYLVANIA; and DISTRICT OF
COLUMBIA,
Plaintiff,
v.

NO.
DECLARATION OF CARMEN BEST
IN SUPPORT OF PLAINTIFF’S
MOTION FOR TRO AND
PRELIMINARY INJUNCTION

Noting Date: August ___, 2018

UNITED STATES DEPARTMENT OF
STATE; MICHAEL R. POMPEO, in his
official capacity as Secretary of State;
DIRECTORATE OF DEFENSE TRADE
CONTROLS; MIKE MILLER, in his official
capacity as Acting Deputy Assistant Secretary
of Defense Trade Controls; SARAH
HEIDEMA, in her official capacity as Director
of Policy, Office of Defense Trade Controls
Policy; DEFENSE DISTRIBUTED; SECOND
AMENDMENT FOUNDATION, INC; and
CONN WILLIAMSON

17
Defendants.
18
19
20
21
22
23

I, Carmen Best, declare as follows:
1.

I am over the age of 18 and have personal knowledge of all the facts stated herein.

2.

I am the Chief of the Seattle Police Department. I began serving as interim chief

on January 1, 2018, and have been nominated to the permanent position by Mayor Jenny Durkan.
3.

I have been a law enforcement officer for 26 years with the Seattle Police

Department (SPD). During my time as a law enforcement officer, I worked my way up the ranks
24
DECLARATION OF CARMEN BEST
IN SUPPORT OF PLAINTIFF’S MOTION
FOR TRO AND PRELIMINARY
INJUNCTION

1

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
[phone]

1

from deputy and have served in leadership roles in a wide range of positions with SPD, including

2

school safety, operations lieutenant, and assistant chief in the criminal investigations bureau. As

3

the Chief of SPD, I oversee a staff of 1945 personnel who are responsible for the public safety

4

of approximately 725,000 members of the public in Seattle.

5

4.

As a law enforcement officer, I am very familiar with firearms. I have carried a

6

gun as part of my job for the last 26 years, have received instruction on a variety of guns, and

7

have personally witnessed the damage that guns can do to the human body if guns fall into the

8

wrong hands.

9

5.

I am also familiar with Washington’s gun-safety laws, which prohibit certain

10

categories of persons from buying or possessing firearms. This group includes minors, persons

11

convicted of violent felonies, persons under the supervision of the Department of Corrections,

12

the mentally ill, and persons subject to a wide variety of protection orders, including domestic

13

violence, stalking and anti-harassment protection orders.

14

6.

Washington’s gun laws place a significant amount of responsibility on local law

15

enforcement. For example, SPD is responsible for enforcement of court orders to surrender

16

firearms; testing and processing firearms recovered as evidence; and conducting investigations,

17

searches, arrests, and other activities that may result in lawful seizure of a firearm. Information

18

about these responsibilities is contained in the Seattle Police Department Manual, which is

19

available at the SPD page of the City of Seattle website:

20

http://www.seattle.gov/police-manual/title-15---primary-investigation/15215---seizing-

21

and-releasing-firearms (last visited July 29, 2018);

22

http://www.seattle.gov/police-manual/title-7---evidence-and-property/7030---firearms-

23

ammunition-and-shell-casings (last visited July 29, 2018);

24
DECLARATION OF CARMEN BEST
IN SUPPORT OF PLAINTIFF’S MOTION
FOR TRO AND PRELIMINARY
INJUNCTION

2

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
[phone]

1

http://www.seattle.gov/police-manual/title-6---arrests-search-and-seizure/6180---

2

searches-general (last visited July 29, 2018);

3

http://www.seattle.gov/police-manual/title-15---primary-investigation/15410---

4

domestic-violence-investigation (last visited July 29, 2018);

5

http://www.seattle.gov/police-manual/title-16---patrol-operations/16110---crisis-

6

intervention (last visited July 29, 2018).

7

7.

I understand that technology exists that allows the manufacture of firearms

8

through the use of commercially available 3-D printers. I further understand that this technology

9

would allow someone to “print” or make guns in the privacy of his or her own home or anywhere

10

a 3-D printer is available. The guns made in this manner can be constructed out of metal or

11

plastic; regardless, I understand these “ghost guns” generally bear no identifying serial number

12

or manufacturer’s mark. In addition, I understand that the 3-D printed guns made out of plastic

13

are not detectable by metal detectors used at places such as courthouses and airports.

14

8.

I have great concern for public safety if the technology (e.g., software, computer

15

files, computer code) that would allow 3-D printers to be used to print guns would become

16

publicly available, including via the internet. As I said above, Washington has a very strong and

17

comprehensive set of gun laws designed to ensure that persons who are ineligible under

18

Washington law from possessing firearms cannot obtain guns. The widespread availability of

19

the technology to print guns—especially nonmetal guns that can pass unseen and unrecognized

20

through metal detectors—greatly increases the likelihood that persons who are ineligible to

21

possess guns will be able to get guns. Such a world would be much more dangerous for the

22

public, and for the SPD officers whose job it is to protect the public.

23
24
DECLARATION OF CARMEN BEST
IN SUPPORT OF PLAINTIFF’S MOTION
FOR TRO AND PRELIMINARY
INJUNCTION

3

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
[phone]

1
2
3

I declare under penalty of perjury under the laws of the State of Washington and the
United States of America that the foregoing is true and correct.
DATED this 3dday of July, 2018, at Seattle, Washington.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
DECLARATION OF CARMEN BEST
IN SUPPORT OF PLAINTIFF'S MOTION
FOR TRO AND PRELIMINARY
INJUNCTION

4

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite
4-318888
Seattle, WA
(206) 4644-77
-7744

Exhibit 4

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 1 of 70

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DEFENSE DISTRIBUTED, et al.,
Plaintiffs,
v.
U.S. DEPARTMENT OF STATE, et al.,
Defendants.

§
§
§
§
§
§
§

No. 1:15-cv-372-RP

Exhibit A: Declaration of Lisa V. Aguirre

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 2 of 70

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION
DEFENSE DISTRIBUTED, et al .,
Plaintiffs,
V.

U.S. DEPARTMENT OF STATE, et al.,
Defendants.

§

§
§
§
§

No. l:15-cv-372-RP

§
§

DECLARATION OF LISA V . AGUIRRE

I, Lisa Aguirre, pursuant to 28 U.S.C. § 1746, hereby declare and say as follows :

1.

ram the Director of the Office of Defense Trade Controls Management (DTCM),
one of four directors within the Ditectorate of Defense Trade Controls (DDTC),
Bureau of Political-Military Affairs at the Department of State. I have held this
position since June, 2013. My roles and responsibilities in this position include
managing, overseeing or supporting all DDTC activities.

2.

Prior to holding my current position, I was Director of the Office of Defense
Tirade Controls Compliance in DDTC for over three years, during which time I
oversaw numerous DDTC activities, including the management and processing of
registration applications and registration fee submissions, reviews of export

licenses for prohibited parties, the DDTC Company Visit Program (CVP), a
program in which State Department officials visit arms exporters or end users to
gather information on compliance with the Arms Export Control Act (AECA) and
tbte International Traffic in Arms RGgulations (ITAR), and reviews under the

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 3 of 70

ance
Com miltee on Foreign lnve.srmcnt in the United States (CFIUS). J\s Compli
l)ircctor, I al-;o oversaw civil enforcement actions and rrovided support to
cri min:tl enforcement maucrs under ITAR. In 1hc~c capacities at DDTC. I have
s
become familia r"' ith the application of the AI :CA and 11 AR as part of DDTC
mission and the full range of DDTC activities in support of its mission.

.1

Since joining DDTC, first as a contractor in June 2007. and !hen rhrough
appoint ment 10 the federal service in July 2008. I have served continuously in
defense trade controls roles.

-t

This declaration is submitrcd in support of the opposit ion to a motion for

preliminary injunction to be filed by the official capacity defendants in the abov(!captioned case. The informarion contained herein is based on my personal
knowledge and nn inforrnaiion provided to me in my official capacity.

Diretto rate of Defens e Trade ControJ.,.,

5.

of
The Directorate of Defense Trade Controls (DDTC) is part of the Department
State's f3ureau of Political-Military Affairs (PM), which reports to the Under
Secretary for Arms Control and International Security. DDTC controls the export
by
and temporary import and brokeri ng of defense articles and services covered

the Uniied Slates Munition~ List (USML ), in accordance with 22 U.S.C.

**

2778-

in
2780 or the Arms Export Control Act (AECA ) and the International Traffic

/\rms Regulations (ITAR) (22 CFR Part~ 120-130).

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 4 of 70

(1 .

world peaci;:
l)DTC- s mission is to carry out the purposes of the Al:CA to further
uding by
nnd the nationa l security and foreign poli cy of the United States, incl
U .S. nationa l
ensurin g that commercial defense exports support key objectiv es of

for
•,ccurity and foreign policy. includi ng weapons nonpro liferatio n, support
a llies, and preservation of human rights. DDTC also seeks to ensure that

s
regulation keeps pace.: with innovat ion, lhat U.S. industry and foreign partner
tions cxporl
t:ompJ y with appl icab le policies and requiremen ts. ;ind Lhat the muni
proct.:ss is re liable and predictab le.

DDTC also serves us a rcso1,1rcc Lo the U.S .

gnvern mcnr, industry . and fore ign cou nterparts on defense 1radc matters.

7.

port and
/\s parl of its mission . DDTC licenses the export and tempora ry im
brokeri ng of items subject lo the Interna tional

Trnffic in Arms Regulati ons

m ent of.
(.. ITAR") and seeks to ensure approprinte complia nce wi th, and enforce

.
1hcsc regu lati ons. DDTC also maintai ns, reviews . and clarifies the U.S

Mu ni tions List (USML), and oversees the Commo dity Jurisdiction process.

8.

tornle of
The Office of Defense Trade Contro ls Policy (DTCP ) w ithin tht.: Direc
e related
Defense Trade Control s oversees the develop ment of pol icy and guidanc
the !TAR
s
lo ex por1 of dcfensL: a rticles a nd "crvicc s nn the USML and subject to

,
and the /\EC/\. DTCP manages the in tcragcn cy Commo dit y Jurisdic tion process
USML when
which determ ines whethe r or not certain items are control led on the
licensin g
questio ns ari <;c concerning whether or not an item is subject to the
the
jurisdiction of the Department of State. DTCP also prepares al l changes to

IT/\R. which are publish ed in t he Federal Register. manages bilatera l defense
3

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 5 of 70

trade agrcemt:nt:-., such as the United Kingdom and /\ustralia Defense Trade
Coope ration Treaties . and provide~ cxporl control policy and regulato ry guidance
l.o exporter s, defense manufc1l'lurers, and foreign al l ies and pan ners.

Statutor y and Regulatory Framework

9.

(l)),
The Arms Export Control /\ct (AECA), Section 38(a)(l) (22 U.S.C. 2778(H)
aut hnri.1.es the President "in furtheran ce of wor ld peace and the security and
foreign policy of the United States ... lo control 1he import and the export of
Lo
defense articles and defense services and to provide foreign policy guidance

and
persons of the United Stales involved in the export and import of such articles
services. The President is uuthoriz ed to designate those items which shall be
consider ed as defense articles and defense service!- for the purpo,;cs of this section
and 10 promulg ate regulatio ns for the import and export of such articles and

s
services. Tht.: items so designated shall c.:onstitulc the Uni1ec.l States Munition
List:·

(a) l"hc $tatult)ry authority

or the President to ·'prom ulgate regulations for the

imp<>rt and export or such artic les and services .. has been de legated to the
Secretary of State by Executiv e Order 13637, § l(n ). This delegation require.
that ··Design ations. includin g changes in designat ions.
Stal<.:

by the Secretary of

of items or categories of items that shall be considered as defense

mtidcs and defense services subject to export control under section 38 (22
l f.S.C. 2778) shall have the cnncurrencl.! of the. t::cret:.ir) of Defcn:>e :·

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 6 of 70

(b) The authorities under the AECA delegated to the Secretary of State have been
further delegated pursuant to Department of State Delegatio n of Authority
293-2, f)e/egation of I\ 111/writy /Jy the Secretw y <~f' Srnre to Off1cers <4 the
Oef)artm ent ofS1we and the Admi11istrntor of' 1/,e U.S. J\gency fur

lntenwti cmal Developme/11 of Awhorit ies under the Foreign Assiswn ce Act of
1961 anti 01her Related Acts (Oct. 23. 20 I I), which delegate s to the Under
Si.:cretary

rnr ,'\nn s Control

and lntcrm.1tio11al

Secu rit y .. the lunc.:tions

confe rred on the Secretary by Executive Order 136:n relating lo sales and
exports

10.

under th<.: Arms Export Comrol /\ct (22 U.S .C. 2751

t't

\
.·eq. ).".

The ITAR, 22 C.F.R. Chapter I, Subchapter M, Parts 120- 130, as amended, 79

Fed. Reg. 77884 (Dec.29 . 2014), implements the AECA. Section 120.l of the
!TAR sets forth how the ITAR is lldministered:
(a) Seuion 38 of thi.: /\rms Exporl Co ntrol /\ct (22 U.S.C. 2778), HS amended ,

authori?:es the Presidenr to control the export and impon of defense articles
and defense services. The :statutory authority of the Presidem to promulgate
regulations with respect 10 exporLs of defense articles ,rnd defense services is
delegate d

lo the Secretar y of State by Executive Order U637. This subchap ter

imrlcmcn ls that c1uthori Iy, as well as other relevant authorities in the Arms
Export Con trol /\cl

(22 U.S.C. 2751 et seq. ). By virtue of delegati ons of

authority by the ' ecretary of State, these regulations ar~ primarily
administered by the Deputy Assistant Secretar y of State for Dere nse Trade
Controls , Bureau of Political-Military Affairs.

5

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 7 of 70

11.

l7
T he IT/\R provides what particula r activiiics constitute an cxron. Section 120.

Jctincs an ··cxpo11·· to mean:
( l ) Sending or laking a defense article out of the United States in any manrwr.
except by mere trnvel outsjde of the United Stales by a person whose personal
knowled ge i ncludes technical data; or
(2) Transfer ring regisiration, control or ownersh ip to a foreign rerson of any
aircraft, vessel, or satellite covered by the U.S. Munition s List, whether in 1he
Uni ted States or abroad; or
(]) Disclosi ng (includ ing onil or visual disc losure) or transferr ing in the

United States any defense article to an cmba~sy, any agency or subdivi. ion of
H

forci1-!n gel\ crnmenl {t'.M·. diploma tic missions): or

(cl-) Disclosi ng (includin g oral or visu;tl disclosure) or transferr ing Iechnict1l
data to a foreign person, whether in the United States or abroad; or
(5) Perform ing a defense service on behalf of, or for the benefit of, a foreign
person, whether in the United Stales or abroad.
(6) A launch vehicle or payload shall nor, by reason of the launchin g of such

vehicle, be considered an export for purposes of this subchapter. Howeve r.
for cenain limited purposes (see ~ 126. L of this subchapter), the controls of
1his subchar tcr may apply

ddensc arli ck!--

~lr

10

any sale. lrnnsfcr or proposal to sell or transfer

del'cnsi: ~cn· iccs:·

1

of
On June 3, 2015. the Department of State published in the Fcdernl Register a Notice
ot her proposed
Proposed Rulcmak ing (NPRM) proposin g revisions to 1hc IT/\R. Among
chang,.::s, th e Dcpa11111ent proposed 10 clariry the definit ion of .. technical data·· by
1

6

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 8 of 70

12.

Part 12 l of Lhc ITAR sets out those ··articles. services, and related technical data'·

tha t have been designated as defensc articles and defense services pursuant

10

sections J8 and 4 7(7) of the AECA. These items make up the USM L. There arc

21 categories on the USML under which a particular item may be designated as a
defense article.

13.

/\s relevant lo this litigmion , under Category I, Firearm.\, Clo.w~Assault Weapom

ullll Com/)([t Slwrgu11s. the following items arc designated as defense articles:

(a) Non-automati c ,rnd semi-autom atic firea rms to caliber .50 inclusive ( 12.7
mm).

(h) Fully Hutomatic firearms

LO

.50 caliber inclusive (12.7 mm ).

(c) Fireanns or other weapons (e.g .. insurgenc y-counter insurgenc y, close assault
weapons systems) having a special mili tary applicati on regardless of ca libe r.
(d) Combat shotguns. This includes any shotgun with a barrel length less than 18
inche!--.
(c) Silencers, mufflers. sound and flash suppressors for the articles in (a) through
(d) or this ca tegory and their specjfically des igned. modified or adapted
componen ts and parts.
(f) Riflcscopc:-, manufactu red lo military specifications. (See category Xll(c) for

co ntrol<; on night ~ighting devices.)
(g) Barrels. cy linders. receiver,; (frames) or complete breech rnet:hanisms for the
articles in paragraphs (a) through (d) o f this category.
(h) Compone nts, pans, accessories and attachmen ts for the articles in paragraph s

(a) through (g) of this category.

- - - -------

c;pccifying that technical data may take the form of. in ter alia, CAD files. In addition, to
make more explicit the existing control on exports. the Departme nt proposed co add a

pnragraph specifyin g lhHt provi ding technical <la ta on H publi cl y-accessib le network , such
as 1hc Internet. i~ an export because of its inherent acccc;sibi lity to foreign powers. The
DeparLmcnl has requested that interested parties submit comments on these and other
7.
c lemen ts of the proposed rule making between .lune 3 nnd Augu~t J, 2015. See Ex hibit

7

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 9 of 70

(i) Technical data (as defined in~ 120.1 0 of !his suhchapter) and defense services
(as tkfinccl in* 120.9 of this subchaptcr) directly related to the defense

articles described in paragraph s (a) through (h) of this category. Technical
data directly rclalcd to the manufacture or production of any defense articles
described elsewhere in this category that arc designated as Significant Mili tary
Equipmen t (SME) shall itself be designate d SME.

(i) The following interpretations explain a1id amplify the terms used in this
category and throughou t this subch~1pter:
(l)

A firearm is a weapon not over .50 caliber (12.7 mm) which is

designed to expel a projectile by lhe action of an explosive or which
may be 1cad il y conve rted to do so.
I\ ri fl e is a shoulder firearm which can discharge a bullet through a

(:1

rirled barrel 16 inches or longer.
( ')

A rnrbinc is a liglllweight shoulder firearm wi1h a barrel under J ()

inches in length .

( I)

A pistol is a hand-operated firearm having a chamber in1egral with

or permanen tly aligned with the bore.
(-i)

A revolver is a hand-operated firearm with a revolving cylinder

containing chambers for individual cartridges.
\fil

A submachine gun, ··machine pistol'' or ··111achi111.: gun ·· is a firearm

originally designed to fire, or capnblc of being fired, fully
automatically by a singJc pull of the trigger.

14.

In addition tci the inclusion of ·'techni cal data·· for Category I defense a11iclcs on

the l ;sM I.. there arc sevcn:1 1other prov ision~ or the IT/\R related to ··t\!chn ical
data ...

a. Sect ion 120.10 ofthc !TAR defines ··technical data.. us ··(a)(I)
Information, other than software as defined in~ 120. IO(a)(4) which is

required for the design . development , production, manufacture,

8

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 10 of 70

assembly, operation . repair, testing, maintenance or modification of
defense articles. This includes information in Lhe form of blueprints,

drawings. phmograp hs, plc1ns, instruction-; or documcnta1ion[; I (2)
( ' lassified informatio n relating to defense articles and defense serv ices

on the U.S. Muni tions List and 600-series items controlled by the
Commen x Control List: (3) Informatio n covered by an invention
secrecy order; or (4) Software (sec~ 120.45(f) ) directly related to
3
1
defense aniclcs. (b ) The defin ition in paragraph (a) of this sectio n

does not include informati on concernin g general scientific,

mathematical. or engineerin g principles commonly taught in schools,
colleges, and universitie s. or in form atio n in the puhlic domain .is
.hlta as defined in
defined in § 120.11 of this subchapte r or teleme try <

note 3 lo Category XV(f) of part 121 of this subchapter. It also docs
not include ba<;ic marketing information on function or purpose or
general system dcscripti tm s t)f'deli::nsc articles.'·

b. Section l 20.6 of lhc ITAR defi nes a .. defense artic le.. as .. an y item or
technical data designated in§ 121.1 of this subchaptcr. This term
includes techn ical data recorded or stored in any ph ys ical form,

rnoc.lcls, mockups or other items that reveal technical c.lata directly

relating to items designated in § I 21. l of this subchapter. It also
includes forgings, castings, and other unfini shed products, such as

This sentence added by 79 FR 61226 (Oct. 10, 2014).
cd
-~ /\mended by 79 F R 27"18() (May JJ . 2014, effecti ve Nov. !O, 2014), as correc1 by 7t1
FR 66008 (Nov. 10, 201'1).
()

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 11 of 70

cxlrusions and mach ined bodies, 1hat have reached a stage in
ma nu fact uri ng where th ey are clearly identifiable by mechanical
properties. material composition, geometry, or function as defense
art icles.

4

It does not include basic marketing informati on on function

or purpose or general system descriptions:·

c.

Section 120.9 of the ITAR defines a ··defonse ervicc"' as ..(I) The
furnishing or assistance (including training)

10

foreign persons.

wheth<.:r in the Uni ted States or abroad in 1hc design, development,

engineering. manufacture, production, assembly, testing. repair,
maintenance. modification, operation, demilitarization. destruction.
processing or use of defense articles; (2) The furnishi ng to foreign
persons or any technical data controlled under this subchapter (sec
~

l 20. 10), whether in the United States or abroad : or (3) Mi litary

rrnining of foreign units and forces, regular and iffegular, including
formal or informal instruction of foreign persons in the UniLCd State:;
or abroad or by correspondence courses, technical, education al, or
information pirhlicatio ns and media of all kinds. tn-1ining aid.
o ricmation, training exercise. and military advice. (See also

~

124. 1.r·

d. Collettively. rhe ··technical data" provisions serve the purpose or
limi ting the export of detailed info rmation needed to manufacture.
maintain, or operate defense articles controlled on the USML. Such

-1

This sentence was added to the definition of defense article by 79 FR 61226 (Oct. 10.

2014).

10

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 12 of 70

cxporl limitations advance the purposes of the AECA by limiting the
abil ity of foreign powers lO design. develop, and produce ddc11sc

arlide, in lieu of being able

10

ohrnin those article!> directly. /\bsent

the inclusion of technical data in the ITAR. the (TAR·s limits t)n arms
transfers woulu be of negligible practical effect because the IT/\R
would leave unregulate d the exportatio n of the fundamental
technolog y, know-how , blueprints, and other design information

sufficient (or foreign powers to construct, produce, manufacture.
maintain. and operate the very same equipmen t regulated in its
physical form by the TT/\ R.

15 .

The !TAJ< also sets forth the policy on designatin g and determini ng how a
'>pecific article or service may be designated a:-. a defense article or defense
service.

ii.

Pur<.;uanL

LO

'section 120.3, a par1icu lar article or service wi ll he designated

as a defense an icle i r it: ·'(I) Meets the criteria

or a defense article or

defense service on the U.S. Munition s List; or (2) Provides the cquivalen L

performan ce capabilities of a defense article on the U.S. Munition s List.''
b. Scc tjon 120.3 also provides that a specific article or service ·'shall be
determine d in the future as a defense article or defense service if it
provides a critical military or intelligence advantage such thal it warrants
contro l.. under the lT/\R.

11

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 13 of 70

c. Section 120.3 also specifies that the ·' intended use of the article or service

after its export (i.e., for a military or civilian purpose), by itself, is not a
factor in determining whether the article or service js subject to the
controls of this subchapter:·

I().

ITAR ju risdiction extend<; only to the export

or defense articles. defense services,

and technic;il data. [,'or th is reason, !TAR cincs not limil the ability of Defense

Dislrib utecl nr others

IO

distribute CAD files to U.S. persons wi1hin the United

Slates for domestic use.

The Commod ity Jurisdiction (C.I) process
17.

Commod it) .Jurisdictions. commonl y relerred to as ··CJs;· are the determinati on
made hy the Departme nt of State identifying rhe expo rt co ntrol jurisdiction of
goods, services and information.

J 8.

The purpm,c of th ese determinations is to reach a conclusion as to whether, for
purposes of export controls, goods, services, or information arc under the
juri"diction of the Deparlmc111 of Stale pur$uanl lo ITJ\R or under the jurisdiction
of the Department of Commerc e, which administers the Export J\dminislration

Regulations (EAR).

5

' J\ few c.;ategories of goods, services, or information are under the jurisdictio n of the

Deparlmen l of Energy, Departme nt of Homeland Security, or ano ther Executi ve Branch
agency. Goods, services, or information may also be within Lhc public domain and not
subject to cxporl controls at alJ.

12

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 14 of 70

llJ.

Section 120.4 l)rthc !TAR establ ishes the CJ procedure," which .. is used with the

U.S. (,overnm ent iC doubl exists as lo whether an article or service i.s covered by
the U.S. Munitions List. ft may also be used [or consic.lcration of a re-designation

of an artic.:lc or service currently covered by the U.S. Munitions List. The
Departme nt must provide notice to Congress at least 30 days before any item is

removed from the U.S. Munitions List." As required by Section 120.4. the
determination ··emails consultation among the Depanmcnts of Slate, Defense,
Commerce, and other U.S. Government agencies and industry in appropriate
cases:· In the vast majority of circumstances, the CJ procedure is unnecessa ry

because 1hen: is no douh1 as to whe1her an item to be exported is a dcfc11. c article
or defense service.

10.

Section 1'.W.4 of 1hc !TAR sets forth the criteria for making a CJ determination:
/\ designalion that an article or service meets the criteria of a defense article or

defense service, or provides the equivalen t performance capabilities of a defense
article on the U.S. Mu ni tions List set forth in th.is sobchapter, is made on a caseby-casc basis hy the Departme nt of State. taking into account:

(i) The ftmT\ and fit

or the article; 7 anc.l

" See 58 FR 3928], July 22, 1993, as amended al 71 FR 20536, Apr.21.2 006; 75 FR
46843, 1\ug. 4, 2010; 78 FR 22753. Apr. 16, 2013; 79 FR 8084, Feb. 11, 2014.
; The form of a commodi ty is defined hy its configura tion (including the geometrically
mca~urcd c<)nfiguration). rnatcri<il, and material properties 1hac uniquely cha racterize ir.
Thi..; fit of a co mm odity is defined by its ability to physically in terface or connttl with or
13

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 15 of 70

(ii) The function and performan ce capability of the article.~

~

I.

Section I 20.4(f) rurther requires that ··State, Defense c1nd Commerce will resolve
commodity jurisd iction disputes in accordance with cstnbli shecl procedures. State
shall notify Defense and Commerce of the initiation and c.:onclusion of each case:·

22.

Section I 20.4(g) prov ides an avenue for appt.!al or a CJ determinatio n:
/\ person may appeal a commodity juri<;diction determination hy <;ubrnilting a
written request fo r reconsideration to the Deputy /\s~islcln l Secretary

or Stale for

Defense Trade Controls. The Deputy Assistant Secretary's determination of the
appeal will be provided, in writing, wi thin 30 days of receipt of the appeal. If
dL:sired . an appeal of the Deputy Assistant Sccretary ·s decision can then be made
to the Assistant Secre1ary for Political-MiJitary Affairs.

--~-

?''

DTCP conside rs a variety of information in its consideration of CJ requcc,,ts,
including the information n11ached to the request (such as product brochures .
technica l spccifkHlions and/or blue prints, sales infonnation, etc.), the USML
category in which an ite m most likely may fit. previous CJs on the technolog y or

related mattcrs. and previL)UsJy -issucd export licenses for "imilar items.

become an integral part o f another commodity. [See Note 1 Lo paragraph (d), section
120...l of the IT AR.
x The function of a commodi ty is the action or actions it is designed to perform.
Performance capahility is the measure of a com modi ty 's effectiveness to perform a
dc!-ignated function in a give n environm ent (e.g., measured in terms of ~peed. durabilit) ,
reliabili ty, pressure, accuracy. efficiency).
14

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 16 of 70

J\1'1er DTC'P prepares a preliminary analysis. thl! CJ request and preliminary
;111alysis arc circula1cd

l<J

the relevant interagcncy partners for consultation.

Defense Distributed's CJ Requests
24.

In early May, 201>, OTCP became aware th rough media reports that Defense
Distributed (DD), a pending 501(c)(3) non-profit corporation localed in J\ustin.
Texas, had placed on an unrestricted websile executable Computer Aided Design
(CAD) files enabling the manufacture of plastic firearm components. accessories.
and attachments with a 3D printer. See, e:g., Exhibit I.

25.

J\':> " result, 1hc Dt:partmc nt ~)r State ·s Oflict: or Ddcn,~ Trade Control.s
Complian ce (DTCC) became concerned 1hal these files might be subject to the

IT/\R, in which case DD might be exporting these files without authorization.
DTCC therefore sent a letter to DD, suggesting that they remove the files from
their website and submit CJ requests to determine whether the files were
controlled by the ITAR. See Exhibit 2. DD complied with the request and on
June 21 , 2013, submitted ten CJ requests. See Exhibit J.

26.

In its CJ submission, DD identified a number of publicly available sources for
information on how to manufact ure firearms and rel;ued comroncn ts, including
books on g unsmithin g and gu n design blueprints and ~chematic s availi1hle in a

varie1y of media. inducting on 1he lmernet. DD asserted that their CAD files were
no different from any other medium lhar contains b<1sic manufacturing .. know

15

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 17 of 70

how" for Ii rearms, and thal these files should be found to be in the public do main
and noc controll ed under the ITAR. See Exhihit 3.

27.

In add ition to conferri ng with other agencies in accordance with !TAR Sect ion
120.4, DTCP sought to better understand additive manufact uring and 31) priming
hardware and technolog y and its evolution and diffusion, the impact of the

av,1ilabilit y of CAD fi les (and nthcr, simi lar data files) on the enforcem ent of

cxpon controls, and the applicatio n o f multilateral export control regime.
panicubu ly lhe Wassenaar Arrangement on Export Controls on Convemio nal
Arms and Dual -use Goods and Technolog ies, to such files and technologies.
DTCP consulted other State Depanme nt offices and U.S. government agencies ro

benefit from their expertise ·and consideration of these technologies and issues. In
addition, DTCP organized H conferenc e on additive manufact uring/3O printing
lcchnolog y in March 2014.

28.

In January 2015, \\ hile cOn!-.idcration of Do· s June.201 3 C-J requests wa:-;
ongoing. DD submitted a CJ request for the ··Ghost Gunner," a computer
numc.:rically c.:ontro llccl (CNC) press for milling metal firearms wmponcn ts. See
Exhibit 4. On April 15, '.20 l5. DDTC responded hy providing a CJ determina tion
to Defense Distributed, finding that the Ghost Gunne r would not be subject to the
jurisdictio n of the Departme nt of State. See Exhibit 5. In the course of
considera tion of the Ghost Gunner, DTCP determine d that project files and data
riles for producing

r1

defense article on a 3D printer or simi lar device constitute d

technical data on that defense article that would be subject to ITAR jurisdictio n ,

I6

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 18 of 70

Resolution of the Ghost Gunner CJ reques r also hdpcd DTCP conclude the CJ

rrocess !'or D[Ys .June 21.2013 CJ req uests. On June 4, 2015, DTCP provided CJ
determ inations for the requested items. See Exhibit 6.

Dl>TC's CJ Determination

29.

In making it!> CJ determination, DDTC identified several factors that warrant
treatment of DD"s CAD files as technical data sub_ject to ITAR jurisdictio n.

a. The te-ntral runction of DD· s executable CAD files appears to be to enable
cturc of end-items that arc IT/\R-con trnll ed defense articles.
the manuf,1
b, /\s DD described in its Ghost Gun11t!r CJ request, DD"s CAD tiles can be

used to ··automatically find. align, and mill'" a defense article such as a
firearm on a 3D printt:r or other manufacturing device. Manufacture of a
defense article in this way requires considerably less know-how than
manufacture in reliance on conventional LcchnicaJ data, which merely

iuides the manufacture of a defense article and requires add i tional
craftsmanship, know-how, tools, and materials.

c. /\l lho ugh DD contended that the technical data co ns1i tu1cd publi shed data
already in 1hc puhlic c.lonrnin, the exis1i11g material in the public domain
identified by DD did not i nclude C/\D files that cou ld he used w

automatically generate defense articles. Because CAD fi les providc the

17

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 19 of 70

additional functionalit y described abuve. DIYs CAD files arc a
meaningful step beyond previous, public-dom ain material.

d. In addition. because DIY:,; CAD lilcs are information simil ar to

.. blueprin ts. dra1,,vings, photographs . plans. instructions or docttmentaL1011··
that can be used to automatically manufacture dcfen,;c articles. DDTC
concluded that the regulations place them within lTAR commodities
jurisdiction .

30.

Based on thc~e considerations, its consultations with other State Departmen t

offices and U.S. gove rnment agencies, its own expertise, and the

tex t

of the

/\1:C/\ and ITAR. DDTC concluded that 11D·s CAD files fall within the

_jurisdiction of the lTAR as techn ical dala under Ca tegory I. subsection (i) of the
USML relying on tht: definition of technical data in .22 C.F.R .

*120. lO(aJ( 1).

DDTC concluded that other in f'ormation. inc luding a ··read-me·· Ille subm itted l,y
DD for a CJ determination. did not fall within the jurisdiction of the lT/\R.

,\ccordingl ), DDTCs determination does not restrict DD from discussing

information and ideas t1b6ut 30 printing, either domesticall y or internationally. as
long as such discussions do not include the export of technical data.

31.

Classification of DD"s CAD tiles as within the jurisdiction of the IT/\ R is not an
outright prohibition on the export of these files. Rather, lTAR requires that DD
obtain a '· I icensc or other approval ... pursuant LO the ITA R prior 10 any cxporC
for these CAO files.

18

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 20 of 70

J2.

Should DD submit an application for approval to export its CAD files, DDTC will
review the proposed export. includi ng its intended recipients and the type. fo rm.
and scope of the export. DDTC will consider the application in ac.:cordancc with
the factors enumerat ed in 22 C.F.R.

~

126.7, including whether such export is

prohibited ··by any statute of the United Stales:· 22 C.F.R.

~

I 26.7(a). whether

such export wou ld be ·'in furtherance of world peace, lhe national security or the
l<.)rcign policy of the United States:· 22 C.I·.R.

*126.7(a)(I ). "\11cther ··[aln

applicant, any party to the export or agreement. ttny snurce or nrnnufacturer of the
defem,e aniclc or defense service or any person who ha~ a significant interest in
1he transaction has been debarred, suspended , or otherwise is ineligible to receive
an txport license or other authorization from any agency of the U.S. government.··

id.~ 126.7(a)(6). In addition. there are numerous counlries to which exports of
some or all' categories of defense arlicles are prohibited. See, e.~., 12 C.F.R.

~

126.L

~J.

In my experience, the overwhel ming majority nf fTAR licensing applicatio ns are
approved outright or approved with condi tions intended

LO

safeguard the defense

article being exported from use in a way that wnuld damage worlcl peace or the
na tional security or foreign policy interests or the United State~. Of course, any
g.i,·cn licensing app lication will on ly be approved if the application satisfies the

standards required under 22 C.F.R.

*J26. 7.

19

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 21 of 70

Likely Effects of the Preliminary Injunction Sought hy Plaintiffs

'.14.

The entry tlf'<l prclirnina ry injunction authorizing the posting or oo·s C/\D fi les
to the lmcrnet without restriction would make those filt:s available worldw ide to

any Internet user, thereby permitting the export of those files to any foreign
perso n or foreig n power v,1ith access to DlYs website . Such an injunction woulcl

deny DDTC the opportunity to consider, among ocher things, whether any specific
export of oo·s C/\D files would violate the law or would cause <;ignificant harm
to the national security or foreign policy interests o f the United States.

35.

Absent a specific request for an export license, I have considered the likely
impacts o fan unrestricted export of O0-s CAD files co any interested person.

entity. or fo reign power and concluded that the likely effect of ;i prelimina ry
injunction wo uld be to cause significant harm to the na1ional security and fo reign
policy in terests of the United States. Although a comprehensive enumeration of
lhc possibk hanm; wou ld be difficult, I can identify the following as among the

most concerning:

a. The ''Liberato r" firearm included in

oo·s CAD designs presents a specific

and unique risk to the national security and foreign policy interests of che
Uni1ed States. The Liberator is a plastic firearm which can be produced in
a wi-\y HS lo be both fully operable and virtuall y undetectable by
conventio nal security measures . uch its metal de1cctors. police and

security services, could particularly. (though not uniquely) cause damage
U .. fo reign poljcy interests. If U.S.-origin CAD file~ were used to

20

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 22 of 70

manu facturc un undetectable ·'I ,iberator"· in a fore ign country. and that
weapons was then used to commit an acl of terrorism, pirncy,
assassination. or other serious crime (e.g., to compro m ise aviation security
overseas), the act itself - or the interests of a foreign country in holding
the United States accountable - could cause serious and long-lasting harm
1

o
L the foreign policy and national security interests of the United States.'

h. The United States and other countrie s rely on internat ional arms

embargoes. export controls. an<..I other measures to restrict the availability
of defense articles ~ought hy terrorist organilc1tions. Making DD' s CAD
files available through unrestri cted access on the fnterne t wo uld prov ide
any such organization with defense articles, including firearms, al its
convenience, subject only to its access to a 3D printer, an item chat is
widely commt.:rcially available. Terrorist groups and other actors could
then potentially manufacture and use such weapons against the United
States or its a llies.
c. Making DD' s CAD files available through unrestricted acces!> on the
In ternet would likewise provide acccs,;; to the firearms compon ents and
ed
replace ment parts to armed insurgent groups, transnational organiz
criminal organizations, and states subject to U.S. or UN arms embargoes.

to the Undetectable
'' Unde tcttahle fi rearms are unl,iwfu J in the Un ited States pursuant
includes
Firearms Act of 1988. See 18 U.S.C. § 922(p). /\ !though the "Libera tor'· design
rs, this metal
insertion of a six-ounce piece of metal to make it detectable by metal detecto
it to be bot h
content can bc removed without rendering jt inopcrahle, thereby permitting
operable and undetectable.

21

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 23 of 70

Access to weapons technology coupled with the uncontro lled and
increasin gly ubiquito us mean,;; or production (i.e., JD printers or other
similar manufac tudng technolo gy capable of cxccu1in g CAD fi les) could

ctintribute

lO

armed conilict, terrorbt or crimi nai acts. ~,ncl seriousl y

undermi ne global export control and non-pro liferation regimes designed lo

prevent the dangerous and destabilizing spread and accumul ation of
weapons and related technologies. U.S leadership in lhesc areas also
would suffer, co ntri buting overall to a more dangerous internatjonal

environment.

d.

Many countrie s. includin g importan t U.S. allies, have more restrictiv e
firearms laws than the United States and have identifie d firearms CAD
files for 30 printers as a threat 10 donH::stic fire<1rm ~ Jaws. For example,

both the Uni ted Kingdom and Japan have arrested individu als for
manufac turing or attempti ng tO use firearms CAD files and 30 printers to
1
manufac ture firearms . See, e.g., hup:!fww w.bbc.co m/new\ led111ol0 Q.v-

'7 7322947 , accessed , June 6, 2015. Unrestricted exports from the United

Stutes of munition s or Lcchnical data, such as DIYs CAD file!:>. which
coulc.l be used to automat ically manufac ture a firearm or other defense

article. would undercut the domestic laws of these nations, increase the
risk of domestic violence in rhose countries, and thcreny damage U.S.
foreign relations with those countrie s and foreign policy interests.

22

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 24 of 70

36.

Int my judgment, the entry of a preliminary injunction in this matter would

in.crease the risk of all of the foregoing harms. Indeed, such an injunction could
reasonably be expected to bring attention to DD's CAD files, making awareness
of their capabilities and accessibility known more widely to individuals, entities,
and foreign powers that would make use of DD's CAD files to the detriment of
U .S. foreign policy and national security interests.

I declare under penalty of perjury that the foregoing is true and conect.

Executed.on June 10, 2015.

Lisa V. Aguirre

23

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 25 of 70

EXHIBIT

1

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 26 of 70

3D-print~1ble guns are just the start, says Cody
Wilson
The inventor of 'The Liberator' plastic firearm believes in an open future and the 'complete explosion'
of all gun law

Alex Rayner
Monday 6 May 20131156 EDT

ody Wilson is a polite, 25-year~old law student at the University of Texas in Austin,
with dark, close-cropped hair and a forward, affable charm. This week he plans to
release the blueprint for a gun that can be downloaded from the internet and produced
using a 3D printer.

C

He and his friendls have spent almost a year developing the Liberator, a "Wild weapon" that
can be assembled from components made on an $8,000 (£5,.150) printer that they bought
on eBay. Using files shared online, the machine creates the solid parts from layers of
plastic.
Wilson's group, Defense Distributed, thinks everyone should have access to a gun and is
working to make it possible through Defcad.org, a depository for weapons designs. It was
set up in December after its files were removed from another site following the Sandy Hook
elementary school shootings. In March, Wilson was issued a federal firearms licence,
allowing him to 1nake guns legally.
"I come from a typical middle class family, for the United States in the south: religious

parents, conservative values, though we didn 't own a lot of firearms," he says. "We had one
shotgun that we never really used."
Despite buying a shotgun shortly after turning 21, Wilson says it was his studies, first as an
English literature major, then as a law student, that started his interest in the politics of
weapons ownership. "I read [19th-century French anarchist theorist Pierre-Joseph]
Proudhon," he says, "I like Jean Baudrillard. I like their critiques of mass culture."
He admits that given current technology, printing a gun is the least effective way of
obtaining a firearm, and that it is easier to simply fashion a gun from the contents of any
hardware store.
Yet he half hopes, half believes that soon, thanks to the convergence of file-sharing and 3D
printing, there \!\rill come about "a complete explosion of all available gun laws. I think we
should be allowed to own automatic weapons; we should have the right to own all the

Case of war, as [American political philosopher] Tench Coxe said,
terrible implements1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 27 of 70 and I
think this principle probably applies globally."

A self-described child of the internet age, Wilson is an admirer of Julian Assange and Kim
Dotcorn. "I number myself among them, at least in spirit" he says. "I think the future is
openness to the point of the eradication of government. The state shouldn't have a
monopoly on violence; governments should live in fear of their citizenry."
His ambitions don't stop at firearms . Ultimately, he wants to turn Defcad into "the·world's
first unblockab1e open-source search engine for all 3D printable parts", a Pirate Bay-style
archive not only for printable pistols, but for everything from prosthetic limbs to drugs and
birth-control devices.
More features

Topics
US gun control

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 28 of 70

1
an
@

Shots fired from world's first 3D-printed
handgu11
Cody Wilson, 25, successfully tested plastic handgun built by his Texas firm Defense Distributed using
an $8,000 3D printer
Adam Gabbatt in New York
Monday 6 May 2013 14.43 EDT

The world's first gun made almost entirely by a 3D plastic printer has been successfully
fired in Texas.
The successful test of the plastic handgun, which was built by Defense Distributed using an
$8;000 3D printer, came after a year of development. The company, which is run by 25 year-old Cody Wilson~ now plans to publish the blueprints for the gun online.
Wilson and a cornpanion successfully fired the gun for the first time i.n Austin, Texas, at the
weekend, Forbes reported. A video published online shows the gun held in place by a metal
stand, with yellow string attached to its trigger. By yanking on the string, the pair were able
to pull the trigger from 20ft away, successfully discharging a .380 caliber bullet.
Defense Distributed's device is controversial because of the way it is made. Fifteen of its 16
pieces were constructed in a second-hand Stratasys Dimension SST 3D printer, Forbes said.
The final piece, the firing pin, is a common nail available from any hardware store. The
printer used ABS plastic to create the gun parts, which were then slotted together by
Wilson. After Forbes's revelation, the BBC filmed a later test~ in which Wilson successfully
fired the gun by hand.
The Undetectable Firearms Act of 1988 makes it illegal to manufacture in the US any
firearm that is not detectable by walk-through metal detectors. To combat this, Wilson
inserted a 6oz piece of steel into the body of his gun, making it legal.
How long the law stays this way remains to be seen~ however. On Sunday, New York
senator Charles Schumer called for legislation to make building a gun with a 3D printer
illegal, and said he and the New York congressman Steve Israel would introduce the
Undetectable Firearms Modernisation Act, which would ban weapons like Wilson's.
Such an act wou.ld not be the first setback for Wilson, a law student at the University of
Texas. An attempt to raise money for the 3D printed gun project through Indiegogo was
thwarted when the cr.owdfunding website took his pitch offline, citing a breach of rules.
After Wilson raised $20,000 through Bitcoin donations, he was hindered again when

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 29 of 70

Stratys seized back his printer.

Defense Distributed acquired a second-hand Stratys~ however, and carried on
experimenting. V\Tilson successfully made and tested parts of an AR-15 semi-automatic rifle
- the weapon wh:ich has been used in a number of mass shootings in the US - before turning
his attention to a plastic handgun.
More news

Topics
US gun control
3D printing
3D

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 30 of 70

EXHIBIT
2

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 31 of 70

Un~tcd States Dc~1a'i:nent c: Stn~c
Bureau of Poiiticai-lvlilihll-Y .A.jfairs
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"~-,·e;•st' . )i ~~rih!:!ed shoul,J :sr:a: ~ht> above tcchnica] data as lT /\R-cori::·o lkd. ·Tr.is
:!'·:2ns _;1:J'. a:J '-:. l:h Ct::~ st- .lulC: ::a: :-cmovcd frum public acce~s :r~"!:-;.1cdia1c1y. Defense
·vicw ~tc rer-:aindcr of the data rr.?.tk p~1bli.c on i:s website t~)
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Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 33 of 70

-3-

A<.ld:itonul:y, DTCC;~N:-1 requl;sts ir:forrrati or ~fJOut the ?JrOcecurcs Defense
-:;-:~::i ht.iteJ ~-..--[,">w:--. .o de1e.-m:r:e the dassific~t :Oi1 of :is tedm:ca~ da::~, to i::.cbde rhe

v~'ur -;-: ;r~ccdures for
~u,.-rt>;1:.:,Hi ~rt:..: t~:.:i::: .c~~ c.hra ·1ks. We ask t!-:at vou ,.-):rn-ice .,
:.:.et~rrci~rng prr(w1er j u:~isc:~ction cf technicaJ t~ata vvitl-::r: JO days of :he <la:e of th:s ~ct.te:the aadres~
t,) l'is. B-·it.!get Van B:::·,.--,. C::;:::i:am :e Spc-cia.iist, Bn10n::er1ent :)ivis:0:1. al
be _t )\\ :
Cffice of De.fcnse Trade Cont:ols Co:~,pHancc
?::V:/DTCC, SA- 1, ~oo:n::... l 32
2--1-0 ~ E Si-cct, 1\\N
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nr<tshmgton. --..,.-,. ·- 0527
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- ..
0

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w~ ao~nx:~a!c >·ou:- fo.Hcooperatior, in this matter.
·1 - -,~ t 1\... ..
_ 1 ! i .. \-.a. -

;n
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Fle2.se n.ote ou:· ~eferencc

• ~o-- v L u,_ ;; ..
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..
~.

•
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Sincerely ,

C~c'.ln ~. S;i::!h
Ch \cf. Enfo!"<.:tTl~il ~ ::::;;vb'.o:,

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 34 of 70

EXHIBIT
3

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 35 of 70

WILLIAMS MULLEN
jllhna M. Hamvig
O¾recr Dial, 20-2,293-8145

jhartwig@will.i:u11smullen.com

June 21, 2013

Ms. Sarah Heidema
U.S . Depattmentof State
Directorate of Defense Trade Controls
PM/DDTC, SA-1, Room 1200
2401 E Street, NW
Washington, DC 20037

Subject:

Commodity Jurisdiction Requests for Data Files Posted by Defense Distributed

Enclosures:

(1) Printouts of Drawings from Files Posted at DEFCAD.org
(2) Wikipcdia Page for 125mm BK-14M HEAT
(3) Thingiverse Page.for Sound Moderator
(4) Thingiverse Page for VZ-58 Front Sight
(5) Examples of Solvent Trap Adapters
(6) Examples of CAD Files for .22 Pistols
(7) Examples of CAD Files for Muzzle Brakes
(8) Examples of CAD Files for Slide Assemblies
(9) Examples ofCAD Files for Voltlock System

Dear Ms. Heidema:
D•;;:fcnse Distributed has been requested by DTCC/END to submit requests for
commodity jurisdiction determinations jn connection with Case No. 13-0001444 for ten sets of
data files posted to DEFCAD.org. As demonstrated below, the files arc primaiily Computer
Aided Design (CAD) data files and should be considered public domain information that is
excluded from the !TAR pursuant to Section 120.11. Defense Distributed therefore respectfully
requests a determination that these files arc not subject to the ITAR.

COMMODITY DESCRIPTIONS
Each of these Commodity Jurisdiction requests relates to data files, almost all of which
are essentially blueprints that can be read by CAD software. A description of each file or set of
files is set out below. The fi1es are in one of the following formats:
o

STL (STereoLithography or Standard Tessellation Language) is a file format
native to the stereolithography CAD software and can be used with some 3D
printers. "Stereolithography" is a means of creating physical 3D models of objects
using resin or carefully cut and joined pieces of paper. STL files describe only

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 36 of 70

Defense Distributed CJ Requests

Jtme 21; 2013
Page2
the surface geometry of a three dimensional object without any representation of
color, texture or other common CAD model attributes.
o
The lGS (Initial Graphics Exchange Specification) file fo1mat is the standard
format for transferring three-dimensional models between CAD programs. lGS
files can store wireframe models, surface or solid object representations, circuit
diagrams, and other objects.
~ SLDPRT is the proprietary image file format associated with the SolidWorks
brand CAD software. SLDPRT files contain three-dimensional images of one
specific part of a product.
• SKP is .t he CAD drawing format for Google $ketchup, which is a quick, entrylevel 3D drawing program.
There are also a small number of Word (.DOC), text (.TXT) or image (.JPG or .BMP) files. A
printout of each file is attached to the relevant DS-4076.
As explained further below, each of these files either was previously placed in the public
domain or contains only public domain information.

1. Liberator Pistol Data Files
The files for the Liberator Pistol include sixteen STL files for the various parts and
components of the pis10I, tvvo "read me'-' text files that explain how to lawfully assemble the
pistol , a diagram of a pistol, and a permissive software license, If printed on a 3D printer, the
pruts could be assembled into a single shot .3-80 caliber firearm,

2. .22 Electric Data Files
The files for the .22 Electric are two stereolithography (STL) CAD files for models of a
barrel and grip for a .22 caliber pistol. ff printed, the barrel would be a plastic cylinder with a .22
mm bore and the grip would be a plastic piece with two 5mm diameter holes. If those pieces
were printed in plastic and used with an electronic system and firing mechanism, the barrel
would be expected to fail upon firing.

3. 125 mm BK-14M High Explosi-ve Anti-Tank Warhead Model Data File
Ttte file is a STL CAD file for a model of a BK-14M high explosive anti-tank warhead
without fins. The model, if printed on a 3D printer, would be a solid piece of plastic in the shape
of the warhead, but would not be capable of functioning as a warhead.

4. 5.:56/.223 Muzzle. Brake Data Files
The data files are three different CAD file formats (.lGS .. SLDPRT, and .STL) for a
model of a 5.56/.223 muzzle brake. If printed on a 3D printer, the model would be a plastic
piece in the shape of the muzzle brake, but would be expected to fail if used with a weapon.

5. Springfield XD-40 Tactical Slide Assembly Data Files
Tbe files arc nineteen Computer Aided Design (CAD) data files in the Solid Works
.SLDPRT file fo1mat for models of components of a pistol slide for the Springfield XD-40. The

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 37 of 70

Defense Distributed CJ Requests

June 21, 2013
Page 3
components, if printed on a 3D printer, would be plastic pieces in the shape of the components of
the slide assembly, but would be expected to fail if used with a weapon.

6. Sound Moderator - Slip On File
The file is a stereolithogral}hy CAD file for a model of a slip-on sound moderator for an
air gun. The model, if printed on a 3D printer, would work with an air gun, but would likely
melt if used with a firearm.
7. "The Dirty Diane" ½-28 to ¾-16 STP S3600 Oil Filter Silencer Adapter Files
The file is a CAD data file in the SolidWorks .SLDPRT file format for a model of an oil
filter silerncer adapter that is typically produced in stainless steel. If printed on a 3D printer, this
item could be used as a solveht trap adapter, which is used to catch solvents that are used in the
process of cleaning a gun. While a metal solvent trap adapter could be used as a silencer, a
plastic adapter would likely melt if used with a weapon as a silencer.

8. 12 Gauge to .22 CB Sub~Caliber Insert Files
The files are a SKP CAD fi le for a model of a sub-caliber insert, two renderings of the
sub-caliber insert, and a "read me" text file providing infonnation about the National Firearms
Act and the Undetectable Firearms Act. This item, if printed on a 3D printer, would be a plastic
cylinder with a .22 bore, and would be expected to fail if used with a weapon.

9. Voltlock Electronic Black Powder System Files
The files are twelve CAD files for models of cylinders of various bores with a touch hole.
Eleven of the files are in the STL file format and one is in the IGS format. If those pieces were
printed on a 3D printer and used with an electronic ignition, the barrel would be expected to fail.

10. VZ-58 Front Sight Files
The files area SolidWorks CAD file in the .SLDPRT file fonnat and a rendering ofa
model of :a sight for a VZ-58 rifle. ff printed on a 3D printer and used with a weapon, the sight
would be expected to faiL

DATA ORIGIN
With the exception of item 1 (Liberator Pistol Data Files), each of these files was
provided 1to Defense Distributed by the creator of the files identified in the DS4076. In addition,
as cxplairned below, many ofthese files were originally posted to www,thingiverse.com or other
internet sites, and were freely available to any person \.vith access to the internet.
The Liberator Pjstol CAD files were developed by Defense Distributed. The Liberator
pistol was designed as a combination of al.ready extant and working files and concepts. The
pistol frame, trigger housing, and grip specifications were all taken directly from an AR-15 lower
receiver file that is in the public domain. The spring file is taken from a toy car file available on
Thingiverse. The hammer relies on striking a common roofing nail, and the barrel is a cylinder
bored for .380. The gun functions because of the properties of the .380 cartridge - the brass

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 38 of 70

Defense Distributed CJ Requests
June 21, 2013
Page4
casing itse:lf is relied on to act as a breech. The printed and assembled gun is a simple improvised
weapon, not as complex as many of the improvised weapons of the 20th century, those available
in Anny manuals. etc. All of the technologie s used to create the Liberator data files are widely
available in the public domain.

IDENTICAL & SIMILAR }'ILES
The Liberator Pistol data files are for an improvised firearm that is similar to and based
on numerous items that are avaiJablc on the internet as well as in various books. The Library of
Congress online catalog lists nurnernus books on gunsmithing, including
•
0

•
o

•
•

•
•
•
•

Clyde Baker, Modern gunsmithin g; a manual of firearms design; constructio n,
and remodeling for amateurs & professionals (1959)
John E. Traister, Clyde Baker's Modern gunsmithin g: a revision of the classic
(198 I)
Frank de Haas, Mr. Single Shot's gunsmithin g idea book (1983)
Roy F . DunJop, Gunsmithin g (1996),
Franklin Fry, Gunsmithin g fundamenta ls : a guide for professiona l results (1988),
James Virgil Howe, The modern gunsmith : a guide for the amateur and
professional gunsmith in the design and construction of firearms, with practical
ns
suggestio_ for all who like guns (1982),
Gerard MetraJ, A do-it-yours elf submachine gun: it's homemade, 9mm,
lightweight, durable, and it'll never be on any import ban lists! (1995),
Jack Mitchell, The Gun digest book of pistol smithing ( 1980),
J. Parrish Stelle, The gunsmith's manual; a complete handbook for the American
gunsmith (1883), and
Patrick Sweeney, Gunsmithin g: pistols & revolvers (2009),

among many others. Examples of online sources include:
•

http://www .wcaponsco mbat.com/z ip-pipe-and-pen•guns

ci

h!!P.://v,,rvrvv.infinitearms.com/images2/v/manuals/.tvijsc+Gun+Plans

o

•
o

http://theho mcgunsmith .com
http://www .scribd.com /doc/24445 44 I /Pen-Gun-M k I-Blueprint
https://www .google.com /search?g=z ip+gun+blu eprints&rlz =l CI SK.PM enUS43

6U S489&source=lnms&tbm==isch&sa=X&ei=9toUZybJILm8 wSx0YHoB g&ved=0CA oO AUo/\Q&b iw=l 600&bih=8 37
• http://ebookbrow se.com/gu/guns-homem ade
Although DD converted this information into CAD file fonnat, DD does not believe that it
crea1ed any new technical data for the production of the gun.
A drawing of the 125 BK-14M HEAT (Item 3), including measureme nts. is currently
available on Wikipedia at http://en.wi kipedia.org/wiki/File: 125mm BK- 14m HE/\T.JPG.

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 39 of 70

Defense Distributed CJ Requests
June2l, 2013
Page 5
The Sound Moderator CAD file (Item 6) was published on Thingiverse on March 3, 2011
and is stilll avai lable on that site at http://www.thingiverse.com/thing:6808. The VZ-58 Front
Sight (Item 10) was also published to Grabcad on December 14, 2012 and is still available on
that site at http://grabcad.com/library/ front-sight-for-vz-dot-58-rifle.
The Oil Fi lter Silencer Adapter is identical to Solvent Trap Adapters, which are produced
by numerous manufacturers and available as commercial products on many websites, including
amazon.com. (see http://www.amazon.com/s/rcf=nb sb noss 1?url=searchalias%3D;automotivc&fieldkevwords= solvent+trap+adapter&rh=n%3A 15684181 %2Ck%3Asolvent+trap+adapter.) These
items app,~ar to be commercial products that would be subject to the EAR. As such, any related
technologies or technical data would also be subject to the EAR.
Examples of CAD files similar to the .22 Electric PistoJ (Item 2), Muzzle Brake (Item 4),
Slide Assembly (ltem 5), and Voltlock Electronic Black Powder System (Item 9) that are
currently available on the internet are attached to the relevant DS4076.
As demonstrated above, all of the technical infonnation included in the data files posted
to DEFCAD.o rg w~s previously available in the public domain. As such, this information is
excluded from the detinition of "technical data" by 22 C.F.R. § 120.1 O(a)(S). For these reasons,
Defense Distributed respectfully requests that the Department determine that the subject data
files posted to DEFCAD.o rg are not subject to the IT AR.
This submission contains Defense Distributed confidential business information. We
respectfully request that the submission be kept confidential. If you need additional information
regarding this submission, please contact me at 202-293~8145 or [e-mail].

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 40 of 70

EXHIBIT
4

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 41 of 70

MATTHEW A. GOLDSTEIN, PLLC

VIA ELli:CTRONIC FILING
January 2, 2015
PM/DDTC, SA-1, 12th Floor
Office of Defense Trade Controls
Bureau of Political Military Affairs
U.S. Department of State
Washington, D.C. 20522-0012

SUBJECT:

Commodity Jurisdiction Request for Ghost Gunner Machine, Plastic
Mounting Jig, User Instructions, and Software (Defense Distributed, Inc.,
PM/DDTC Code M-34702)

Dear Sir or Madam:
Pursuant to Section 120.4 of the International Traffic in Artns Regulations ("lTAR") (22
C.F .R. Se:ctions 120- 130)~ Defense Distributed requests a commodity jurisdiction determination
from the Directorate of Defense Trade Controls ("DDTC") on the Ghost Gunner machine (the
"Ghost Gunner''). its plastic mounting jig, user instructions, and software for production,
operation,, and use of the Ghost Gunner.
The Ghost Gunner is an approximately one-foot-cubed black box that uses a drill bit
mounted on a head that moves in three dimensions to automatically carve digitally-modeled
shapes into polymer, wood or aluminum. It functions as a 3-ax.is computer-numerically-controlled
("CNC'') press that can be used to manufacture parts to firearms controlled under U.S. Munitions
List ("USML'') Category I. It can also be used to manufacture items that are not controlled under
the USMJL. The machine was designed; developed, and manufactured by Defense Distributed to
automatically manufacture publicly available designs with nearly zero user interaction.
As discussed below, the Department of Defense recommended that Defense Distributed
submit th:is commodity jurisdiction request.
Export jurisdiction over the Ghost Gunner,. Jig, software, and instructions is uncertain
because., although the Department of Commerce Export Administration Regulations ("EAR")
maintain a control listing for jigs, fixtures, and other metal-working items "exclusively designed
for use in the manufacture of firearms" under Commerce Control List ("CCL") Export Control
Number i("ECCNn) 2B018.n, there is no corresponding carve-out for these items and related
software and technical information otherwise controlled by USML Category I generally; aod
Category I(i) controls technical data and defense services directly related to firearms, with
technical data directly related to the manufacture or production of firearms designated as
Significant Mjlitary Equipment.
Please note that a letter from Defense Distributed authorizing my law firm to file this
request was uploaded with this DS~4076 submission. Please direct any questions and all
Communications to me at
correspondence related to this request to my office.
[e-mail] are preferred.
www. Gold stein P LLC. com

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 42 of 70
Commodity Jurisdiction Request
January 2, 2015
Page 2 of9

l.

BACKGROUND
A.

Defense Distributed

De:fense Distributed is a Texas corporation, registered with the Department of State under
PM/DDTC Code M-34702. The company has developed technical information that can be used to
produce, manufacture, and assemble various parts components, accessories, and attachments to
firearms ~~ontrolled under USML Category I. This includes information for the design and
production of the Ghost Gunner, software necessary to operate Ghost Gunner, and code that
allows production of certain items by the Ghost Gunner. 1
Following notification from DDTC in May 8, 2013, that the agency requires U.S.
Government prior approval before publications of otherwise ITAR-controlled technical data into
the public domain (Attachment 1), Defense Distributed has submitted requests for U.S.
Government clearance of technical data to the Department of Defense Office of Prepublication
and Security Review ("DOPSR").2 On October 1, 2014, DOPSR returned a Defense Distributed
request for clearance of technical information on the Ghost Gunner for public release, stating that
commodity jurisdiction over the item was uncertain and recommending that Defense Distributed
submit a commodity jurisdiction request. See Attachment 2.
B.

The Ghost Gunner

Existing CNC machines are expensive or too inaccurate to manufacture firearms for the
casual user. Defense Distributed developed the Ghost Gunner to address this problem by
miniaturizing the build envelope to just large enough to m.Hl common firearm receivers, which in
turn improves rigidity, reduces materiaJ cost and simultaneously relaxes certain design limits,
allowing Defense Distributed to sell an inexpensive machine with more than enough accuracy to
manufacture firearms.
The first design tested on the Ghost Gunner was for an AR-15 lower receiver and the
Ghost Gunner was able to automatically find, align, and mill a so-called "80%" lower receiver,
which was not a firearm prior to milling. The Ghost Gunner has since undergone several design
revisions to reduce machine chatter, backJash, and jitter, all with the goal of keeping total design
cost low.
Photographs of Ghost Gunner are provided at Attachment 3 and rendered images of the
machine with the plastic jig are provided at Attachment 4.

This commodity jurisdiction request seeks a determination of the code necessary to operate
Ghost Gunner. It does not seek a determination on the various project files specific to production
of certain items by the Ghost Gunner.
2
In complying with DDTC prepublication review requirements on publication of technical
1

information into the public domam, Defense Distributed doe- not intent to~ nor should it be
s
considered to, waive any defense, claim or right under law.
www. Goldstein P LLC. com

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 43 of 70
Commodity Jurisdiction Request
January 2, 2015
Page 3 of 9

A schematic drawing for the Ghost Gunner is provided at Attachment 5.
Ghost Gunner fonn, fit, function, and performance characteristics include the following:

•

It uses a compact, powder coated A36 steel frame and thick stainless T-slot rail, with
preloaded ball bearings for maximum rigidity. Linear motion is achieveq with lowbacklash direct-drive ball screws mounted in~line with the cutting surface, thus
preventing torsional gantry chatter while machining.

• It incorporates an ~lectronic probe that automatically detects when the machine comes
into contact with the work piece, allowing automatic part discovery and alignment.
Ghost Gunner requires conductive parts if auto-discovery and alignment are used.

• It can manually machine nonconductive materials, but this requires manual calibration
of a part to the machine • following a few simple instructions - as is required with
existing CNC machines.
0

Its moving parts are entirely sealed from chlp debris. All bearings are sealed and
contain wipers to prevent foreign contaminate entry. The rails are stainless steel and are
factory lubricated, but do require periodic wiping to prolong life. End Mills dull over
time and are considered a consumable.

0

To contain aluminum chips, it includes a chip collection tray and all moving
components are fully enclosed.

• It is capable of manufacturing deep pockets due to its horizontal gantry, which allows
gravity to pull chips away from the cutting surface before they can build up and dull
the end mill, as is the case on traditional CNC designs.

• It uses industry standard ER-11 collets, and shlps with both 1/4" and 5/32" collets .
0

It uses a standard IEC power cord and is compatible with any 110/220V circuit. No
external power brick is used; the machine is entirely self-contained.

• It has two ports: Power (IEC standard) and USB (Type 'B').
0

Its machinable dimensions are 140 x 75 x 60mm (-5.50 x 2.95

•

Its maximum part dimensions are 230 x 90 x 100mm (-9.05

•

Its overall footprint is 330 x 280mm (-13 x 11 ")

Its weight is 20kg (r.45 pounds)

WWW.GO Id Stein PL LC.CO m

x 2.35")

x 3.50 x 3.90")

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 44 of 70
Commodity Jurisdiction Request
January 2, 2015
Page 4 of 9

0

Its Spindle Speed is 10,000+ RPM (Final Value TBD)

0

Its software requirements are Windows 7 or higher. Mac version TBD

As noted above, Ghost Gunner is capable of manufacturing more than just ftreann
receivers. With Defense Distributed's open source Physibles Development SDK CpDev"),
designers can distribute files vfa the company's '.dd' file fonnat, which contains all installation and
assembly instructions, any required jig files to hold a part in place (that users can print with a 3D
printer), and all machine definitions and code to physically manufacture a particular design. To a
casual use:r, the .dd file is a one-stop solution to manufacturing any aluminum physible that the
public can design to fit into the build envelope. Defense Distributed will be developing in and
supporting this format.
The .dd file format is itself open source and not constrained to the Ghost Gonner or
Defense Distributed; any user can define any existing machine's specific parameters via the
machine parameters list. A single file can contain specific code and installation instructions for
any number of machines. A user with both a Ghost Gunner and a Tormach PllOO could
manufacture a particular .dd file on either machine and manufacture the same physible with zero
additional user knowledge, as only the instructions required for a particular machine are revealed
to the end user. The .dd file format is a CNC response to 3D printing's universal .stl file format.
However, Ghost Gunner will also accept TinyG code from any CAM program.
In operation, users provide the parts for milling. They can then simply plug their computer
into the Ghost Gunner, install the Ghost Gunner software, and download any compatible .dd
design file. 3D printable jigs are used to hold each part in place as each milling step is performed.
For example, milling an eighty percent AR-15 lower receiver requires two jig pieces to secure the
lower in place while the trigger pocket is milled, and then two more jig pieces are installed to drill
the trigger pinholes. As most eighty percent firearms require deep pocket milling, Ghost Gunner's
mounting table is parallel to the end mill shaft. This orientation maximizes 3D printed jig strength,
minimizes jig complexity, and mechanically aligns the part to the machine upon insertion into the
Maker Slide-patterned, Open Source T Slot stainless rails.
Defense Distributed expects its typical order fulfillment will contain the fully assembled
Ghost Gu1
nnet CNC, plastic mounting jig designed to secure 80% AR-15 receivers, operating
software and instructions. Defense Distributed also intends to place instructions and computer
code need.ed to build and use Ghost Gunner into the pubJ ic domain as Open Source technology.
Block 13 ("Sales information) is not provided with this request because the Ghost Gunner
is still in development as Defense Distributed awaits arrival of various production pieces and
continues t o make any required changes to the product. As such, the company has not yet
delivered any machines (i.e., no completed sales). However, the company has accepted 469 preorders and 413 advance deposits from prospective purchasers. Each of these orders, except for
one, are intended for domestic sale. In addition, consistent with U.S. law, final sales will carry

condHions that limit purchases to private use (i.e., not for commercial or military use).
www . Goldstein PL LC . com

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 45 of 70
Commodity Jurisdiction Request
January 2, 2015
Page 5 of 9

C.

User Instructions and Operating Software for the Ghost Gunner

111e current draft User Instructions for the Ghost Gunner accompanies this commodity
jurisdiction request at Attachment 6. It contains information on how to attach a "80%" lower
receiver to Ghost Gunner, such that Ghost Gunner can mill and drill all required holes to transform
the loweir receiver into a firearm. Ghost Gunner presents numerous User Instructions, User
Graphics,. and User Selections to the operator. Ghost Gunner perfonns work via Calibration Code
and Milling Code. Ghost Gunner also assists the user in creating 3D printable Jigs, if needed.
111e software necessary to produce and operate the Ghost Gunner includes AutoDesk
[nventor and a simple executable application that can interpret CNC part files and TinyG code.
Additional information detailing the purpose, function, and capability of the software, as requested
by DDTC 's DS-4076 Commodity Jurisdiction (CJ) Guidance for Software, accompanies this
commodity jurisdiction request at Attachment 7.

Il.

COMMODITY JURISDICTION STAND ARD

The standard applicable to Department of State and other agency considerations of
commodity jurisdiction is set forth at ITAR Section 120.3. ITAR Subsection 120.3(a) extends
Department of State jurisdiction to any item that meets the criteria of a defense article described
on the U:SML or that provides equivalent performance capabilities; and ITAR Section 120.3(b)
provides that a specific article not presently described on the USML shall be determined in the
future as :a defense article if it provides a critical military or intelligence advantage.
A.

Relevant US1\1L Control Listings

Subparagraph (h) to USML Category I controls components, parts, accessories, and
attachments for firearms to .50 caliber inclusive. The Ghost Gunner does not meet the Category
I(h) criteda because it is not a component or part to a firearm. Rather, it is a machine that can be
used for the manufacture of such articles.
Subparagraph (i) to USML Category I controls technical data, to include "software" as
defined alt Section l20.45(f), and defense services directly related to the firearms and components,
parts, accessories, and attachments for firearms to .50 caliber inclusive. Technical data directly
related to• the manufacture or production of firearms controlled in Category I is designated as
Significant Military Equipment.
The US.ML does not contain a control listing that describes items used for the manufacture
of firearms. Instead, that listing is contained on the EAR Commerce Control List ("CCL") entry
for ECCN 2B018.n, which controls "Jigs and fixtures and other metal-working implements or
''accessories" of the kinds exclusively designed for use in the manufacture of firearms. ECCN
2D018 controls software" for the "development", "production'' or "use" of equipment controlled

by 2B0 18; and ECCN 2E0 18, in tum, controls "Technology" for the "use" of equipment
controlled by 2B0 l 8.
w w w . G o I d s t e i n P LL C . co m

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 46 of 70
Commodity Jurisdiction Request
January 2, 2015
Page 6 of 9

The. scope of the CCL controls on firearms manufacturing equipment and technology is
unclear be:cause the EAR only controJs items not described on the USML and Category I does not
contain any carve-out from IT AR control for software or technology controlled under ECCNs
2D018 and 2E018. To the contrary, if literally applied, USML Category I(i) treats such technical
information as Significant Military Equipment.
Because there is no specific carve-out in Category I or elsewhere in the USML for
software or technology controlled by 2D018 and 2E018, it is very difficult to distinguish between
technical data for the manufacture or production of firearms controlled in Category l and
technology for the development, production, and use of equipment used to manufacture firearms
controlled at 2D018 and 2E018. This is a primary concern of the present commodity jurisdiction
request.
N e:vertheless, EAR control is consistent with U.S. Implementation of Wassenaar Controls.
Specifically, ECCNs 2B018, ECCN 2£018, and 2B018 are Wassenaar Arrangement-based
controls, s:ubject to the National Security reason for control and which correspond to Category 2 of
the Wassenaar Arrangement List of Dual-Use Items. In fact, 2B018 is titled, "Equipment on the
Wassenaar Arrangement Munitions List."
Although relevant text of the IT.AR and EAR control listings lack clarity, it appears that
the U.S. Government decided to implement export controls on firearms manufacturing equipment
and associated technical information in the EAR when it first implemented the Wassenaar
Arrangement controls for such items. Accordingly, Defense Distributed believes that the Ghost
Gunner does not meet criteria of a defense article described on the USML and that it does not
provide equivalent performance capabilities to an article described on the USML.
Defense Distributed further notes that the DDTC should consider amending USML
Category I to provide an express carve-out for EAR items controlled under ECCNs 2B018.n,
ECCN 2E018, and 2B018. AJtematively, if DDTC intends to control firearms manufacturing
equipment under the USML, it should make this clear in the reguJations. Towards this end, any
determination on the instant request that imposes ITAR control should be widely disseminated and
shared wi1 the fireanns manufacturing industry.
tb
B.

Ghost Gunner Does Not Provide a Critical Military or Intelligence Advantage.

As noted above, ITAR Section 120.3(b) provides that a specific article not presently
described on the USML shall be determined in the future as a defense article if it provides a
critical miilitary or intelligence advantage.
The function and performance of the Ghost Gunner does not provide a critical military or
intelligem;e advantage. Rather, it is essentially a jig press based on a simple design that is easily
replicated by aoy skilled machinist. In fact, the Ghost Gunner can be produced by persons with no
fonnal engineering background.

www .Go I d stein P LLG . com

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 47 of 70
Commodity Jurisdiction Request
Jahuary 2, 2015
Page 7 of 9

In addition, Ghost Gunner builds on technology readily available in the Open Source
communitty,
including
the
gshield
3
axis
motion
hardware
(http://synth.etos.myshopify.com/products/gshield-v5), the grbl g-code parser and motion
controller (https://github.coro/grbl/grbl), and the Arduino microcontroller (http://arduino.cc),
F1urther, instructions and/or electronic files for production of jig presses with similar form,
fit, and function to the Ghost Gunner are publicly available for download at a variety of web
addresses, to include the following:
http://aresarmor.com/store/Item/Polymer-80-Black
http://www.thingiverse.com/thing: 160266
bttps://github.com/DefiantCad/defcad-repo/tree/rnaster/R.i f1es/ AR15 _ 80_percent_lower_v5-shadowfall/AR-15_ 80_percent_Lower_Drill_Jig_vl -Shadowfall
htip://www.advancedrifles.com/3d-printed-j ig-version-2-0/
http://www.80perc- ntarms.com/products/80-ar- l 5-easy-jig
e
http://www.sienanevadaarms.com/jig.pdf
ht:tp://wwv,.rockethub.corn/projects/24384-80-lower-receiver-ar 15-ar 10-rudius-1911

ID.

CONCLUSION

Considering the apparent intent of the U.S. Government in implementing relevant
Wassenaar Arrangement controls in the EAR, Defense Distributed believes that the Ghost Gunner
does not meet the criteria of an article described on the USML. In addition, the Ghost Gunner
does not provide a critical military or intelligence advantage. Accordingly, Defense Distributed
respectfully requests that the Department of State issue a commodity jurisdiction detennination
stating that the Ghost Gunner, its plastic mounting jig, operating software, and production and
operation insti:uctious do not meet the criteria of ITAR 120.3 and are subject to Department of
Commerce jurisdiction under the EAR.
Defense Distributed authorizes the release for general publication of the information
contained in Block 5 of the DS-4076 Form. However, other information in this request and
documents submitted with Defense Distributed's DS-4076 Submission contain sensitive business
information that is proprietary, confidential, and exempt from disclosure under the Freedom of
Information Act, 5 U.S.C. Section 5521 and is also protected under the Trade Secrets Act, 18
U.S.C. Section 1905. Accordingly, pursuant to IT.AR Section 130.15, Defense Distributed
requests that information in this submission other than that contained in Block 5 be withheld in the
event of a request for its disclosure.

WWW.

G o l dstei n p LLC. com

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 48 of 70

1

Commodity Jurisdiction Req11n~1
Jmutitry 1. w, ~
Pni,:t· K uf9

Thank Y()'I] for your prompt attent:on ro this matter and pleo.~c contact me it! 202-550,{1(140
l>r at mutthcwfa g{)lds1cinplk ..:om 1! a.'ty additional infum11i.tion is n~dcd

Cody Wiison. the Principal of Defense Distributed, cenifies that he is lh~ duly 1.rud1ori1l·d
rei,re1-entative of Defense Dlstributoo; and that in such capacjty, he certifies that he hus
carefl.dly read the foregoing Commodity Jmisdictron r,equest; and that the cotihmts nflhl'
request are true and correc:t to tbe best of his knowledge. infonnation and bclitf after
reasonab!e inquiry into the matters discussed.

1/)/ )-tr\ <i
Dal~

May$, 201) DDTC Letter to Dcf<n1se f)istribut(ltl
October i, 2014 DOPSR Letter lP Defcrn;e Di,rribuled
Attachment J

?'tiotographs of Ghost Gunner Machine

Attachment 4

Rendered him~ oiGhosr Gunner Machin~

Atla-chm~nt 5

Ghost Gunner Schematics

AUachment 6

G.ho!>t Gunner User instructio~

Attachmcnt 7

..\nswers to DS-4076 Commodi'rJ Ju.risdicttt,n (0) Guidance for
Softwar~
www.Go l cstein PLLC com

Scanned by CamScanner

j

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 49 of 70
Commodity Jurisdiction Request
January 2, 2015

Page 9 of9

OTHER ATTACHMENTS INCLUDED WITH D8-4076 SUBMISSION:
DD_DS4076.pdf

DD_Attorney_Authorization_Letter_Block_2-l .pdf
[Instant document] DD_Cover_Ltr_Block_6-1.pdf

DD_Certification_Block_l9-l.pdf

www. Goldstein PL LC .com

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 50 of 70

EXHIBIT

5

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 51 of 70

United States Department of State
B11rf.>au vfPolitical-Military Affr.urs

Directurate of Defense Trade Controls
1Jv'ashington, D.C. 20522-0112

In Reply refer to
DD TC Cas e CJ 108 3-1 4 (RE -IS SU E)

APR 15 2Dl5

uary 2, 2•115
YO UR SU BM lSS ION DA TE D: Jan
RMINATION FOR: Gh ost Gu nne r
COMMODITY JURISDICTION DETE
tructions, and Sof twa re
Machine, Plastic Mo unt ing Jig, use r Ins
cub ic fool box that fun ctio ns as
l described in you r sul:>tr,ission is., one
The pro duc
(CN C) press cap abl e of aut om atic ally
xis~ compuier-numcncally-comrolled
a 3-a
ugh software designs.
milling parts out of various materials thro
jurisdiction (CJ) request has been
A Lechnical review of your commodity
the United Slates Government. A spHl
concluded by the requisite agencies of
t has been determined, as follows:
juri~diclion detcrminatinn of this reques
d that the Gh ost Gu nne r, its
The Dcpartmenr of Sta te has det erm ine
ware, and pro duc tion and
pla stic rno unt ing jig, ope rat in~ sotc
t to the jur isd icti on of the
ope rat ion ins tru ctio ns are not su~ jcc
0rl may req uire aut hor izat ion from
Dep art me nt of State. Ho wev er, c~v
Ple ase consu]t the DOC Office of
the Department of O,m me rce (DOC).
ion Request
at {'.202) 482-4811 to make a Cla ssif icat

Exporter Services
uirements prior
(CCATS) an<.1 .satisfy other applicable req

Lo

export.

tha t the project files,
The Department of Srate has cletermined
data for pro duc ing a
dat a files. or any form of technica,
-15 low er rec eiv er, are
defem,t! article, inc lud ing an 80% AR
par tme nt of Sta te in
sub jec t to the jur isd icti on of the lJe
ffic in Arm s
acc ord anc e wit h the lntcrnationa1 Tra
ough 130 ). The y are
Reg ula tion s l1TAR) (22 CF R 120 thr
Con tinu ed on Pag e Tw o
Cody R. Wi lson

Defense Distrib uted, Inc.
0
11· s
•
()
l 1. l W 3-1 . trcc l, t/34
Au stin , TX 787 05
crw@.i1.fofdisl.mg

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 52 of 70

Page Two
In Reply refe r to
DDT C Case CJ 1083 - 14

the United
desi gnat ed as technical data under Category J(i) of
r approval is
Stat es Mun ition s List (UST'vlL). A licen se or othe
temporary
required pursuant to the: rTAR prio r to auy export or
impo rt.
have addi tiona l racts nol
Shou ld you not agre e with this dete rmin ation and
it a ucw CJ requ est. If you un
inclu ded iin the origf oal suhm issin n, you may subm
tional facts to pres ent, you may
not agree with this delc rmin alion and have no .,ddi
uty AsRistant Secrclary of
n:que~t that Lh:is determination he reviewed by the Dep
Slate for Defe nse Trad e Con trols .

please cont act Samuel
Should you require furth er ai;;sistancc on this matter,
v.
Harm on nt (20'2) 663- 28 l 1 or Ham1onSOJ1 st. le.go

{~11VQ\tb

C. Ed"" ard Pear tree
Dire ctor
Offi ce .:1f Defe nse Trad e Con trols Policy

Cc: Mat t'iew A. Gold stein
1012 14lh Stre et, NW . Suit e 620
\Va(ihington, DC 20005
mnll hew (n)g olds teinp )lc.c nm

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 53 of 70

EXHIBIT
6

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 54 of 70
United States Departme nt of Stall~
Burra u of Polirical-M ilitary Affair s
Dirrx wrare of Defen se Trad<' Control.,
Wm·hington, D.C.2 0522 -0112

In Reply refe r to
DDT C Case s CJ 65 J-13 thro ugh 660- 13
YOU R SUB MIS SIO N DATED : June 21, 2013

COM MO DITY JURISDICTION DETERf\.ITNATI ONS
FOR: Libe rato r Pistol
Data FU,:!s, .22 Electric Data File s. 125 mm BK-14M
High Exp losiv e Anti Tank '\-Varhcad l\fodei Data File.. 5.56/.223 i\lluzzle Bra
ke Data Files,
Spri ngfi eld XD- 40 Tactical Slid e Assembly Dat
a Files, Sou nd l\.foderator - Slip
On Dat a File , "Th e Dirt y Diane" Oil Filte r Sile
ncer AdaJ>ter Data File . 12
Gau ge t<1, .22 CB Sub ·Cal iber lnse rt Dat a File s,
Voltlock Elec tron ic Blac k
Pow der Syst em Data Files, and VZ- 58 Fron t Sigh
t Data Files
The data desc ribe d in your subm issio n are Com
pute r Aide d Desi gn (CA D) data
files that ,.:an be used ma 1D prin ter to prod uce
phys ical mod e ls of the asso ciate d
item .
A tech nica l revi ew of your com mod ity juris dktio
n {CJ) requ est has been
conc lude d by requ isite agen cies of the United ~tate
s Gov ernm ent. T he find ings of
thnt tech nica l review are:
The Dep artm en t of State has dete rmin ed that the
125 mm BK-14M Hig h
Exploshe- Anti -Tan k Warhead l\tiodel Dat a ..rile
. Sou nd l\1oderator - Slip On
Dat a File., and ''Th e Dirt y Diane" OU Fille r Sile
ncer Ada pter Dat a File are
not subje•~t to fhe juri sdic tion of the Dep artm ent
of Stat e. The Depaitm ent of
Com merc e (DO C) advises that thes e items are
las-,ified as EAR 99. Plea se cons ult
the DOC Offi ce of Exp orter Serv ices at (202 ) .:.n.t:?
A81 l to satis fy appl icab le
requ irem ents prio r to expo rt.
The Dep rutm ent of Stat e has dete rmined that the
Volt lock Elec tron ic Blac k
Pow der Syst em Data File s are not subj ect to the
juri sdic tion of the
Con tinu ed on Page Two
Cod y R . 'Nils on

Defense Distributed
71 1 \V. 32nd Street. Apt. 115
Aus tin, TX 7870 5
crw@defdi1st. org

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 55 of 70

In RcpJy refer to

DDTC Cases CJ 651- l 3 through 660-13
Depa rtme nt of State. However export may require autl1
otization from the
Depa rtme nt of Com merc e (DO C) Pleas e cons u It the
DOC Offic e of Expo rter
Serv ices at (202 ) 48'2-48 l l to make a Classifo.:alLOn Requ
est (CCATS) and ~ali~f~
othe r appl icabl e requ irem ents prior to export.
The Depa rtme nt of State has detcm1incd that t~e Libe
rato r Pistol Data Files , .22
Elec tric ]Dat a Files, S.56 /.223 Muz zle Brak e Data Files
, Spri ngfie ld XD-4O
Taet ical Slide Assembly Data Files , 12 Gau ge to .22
CB Sub-

Cali ber luse rt
Data Files (except for "rea d me" text fileJ, and VZ-58 Fron
t Sigh t Data Files
are subj c~t to the juris dicti on of lhe Dep artm ent of State
in acco rdan ce with
the Inte rnat iona l Traf fic in Arm s Regulations ( IT
AR) (22 CFR 120 thro ugh
130). They are desig nated as technical data undl!r Cate
gory I(i) of the Unit ed
State<; Murntions List (USML) pursuant to§ 1~0.10 of the ITAR
. A license or
other apprnva.l 1s required pursuant to the lTAR prior to any
export or ten1porary
import.

Shou ld you not conc ur with this deten nina tion and have
addit ional facts not

included in the originaJ submission. you may submit a new
CJ request. If you do
not conc ur with this detem rinat ion and have 110 addit ional
facts to prese nt, then you
may requ est that this deter mina tion be revie wed hy the
Depu ty Assi stant Secr etary
of State for Defe nse Trade Cont rols.
Shou ld you require furth er assis tance on this matter.
pleas e contact Sam Harmon at
(202) 663--28 i I or [e-mail].

SZcite\lk
C. Ed wa.i cJ Pear tree
Dire ctor
Office ot Defense Trad e Controls Policy
Cc: l\1aLthew A. Gold stein
J.()12 14th Stree t, N\V, Suite 620
Was hing ton, DC 2000 5

[e-mail]

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 56 of 70

EXHIBIT

7

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 57 of 70
Federal Register /Vol. 80, No. 106 /Wednesday, June 3, 2015 /Proposed Rules
hearing," which are conducted pursuant
to the provisions of 5 U.S.C. 556 and
557. The CSA sets forth the criteria for
scheduling a drug or other substance
and for removing a drug or substance
from the schedules of controlled
substances. Such actions are exempt
from review by the Office of
Management .ind Budget (0MB)
pursuant to section 3(d)(1) of Executive
Order 12866 and the principles
reaffirmed in Executive Order 13563.

Executive Order J'2988
This regulation meets the applicable
standards set fortih in sections S(a) and
3(b)(2) of Executiive Order 12988. Civil
J1,1stice Reform to eliminate drafting
errors and ambiguity, minimize
Iitigation, provide a clear legal standard
for affected conduct, and promote
simplification and burden reduction.
Rxecutive Order 13132
Trus rulemakin,g does not have
federalism implications warranting the
application of Executive Order 13132.
The rule does not have substantial
direct effects on the States, on the
relationship betw1een the Federal
Government and the States, or the
distribution of power and
responsibilities among the various
levels of governm-ent.
Executive Order 13175
This rule docs uot have tribal
implications warranting the application
of Executive Orde,r 13175. This rule
does not have substantial direct effects
on one or more Indian tribes, on the
relationship between the Federal
Government and Indian tribes, or on the
distribution of power au<l
responsibilities between the Federal
Goverumen1 and Indian tribes.
Regulatory Flexibi'l ity Act
The Administrator, in accordance
with the Regulatory Flexibility Act (5
U.S.C. 601-612) (RFA), has reviewed
this proposed rule and by approving it
certifies that it will not have a
significant economic impact on a
substantial m;mber of small entities.
The purpose of this rule is to remove
[123I]ioflupane from the list of schedules
of the CSA. This action will remove
regulatory conlroh; and administrative,
civil, and criminal sanctions applicable
to controlled substances for handlers
and proposed handlers of
pzaJ}ioflupane. Ac(:ordingly, it has the
potential for some economic impact in
the fo.rm of cost sa'vings..
If finalized, the proposed rule will
affect all persons who would handle, or
propose to handle, [1 2 3I]ioflupane. Due
to tho wide variety of unidentifiable and

unquantifiable variables that potentially
could influence the. distribution and
administration rates of new molecular
entities, the DEA is unable to detennine
the number of entities and small entities
which might handle [123I)ioflupa.ne.
Although the DEA does not have a
reliable basis to estimate the number of
affected entities and quantify the
economic impact of this proposed rule,
a qualitative analysis indicates that, if
finalized, this rule is likely to result in
some cost savings for the healthcare
industry. The affected entities will
continue to meet existing Federal and/
or state requir-emento:; applicable to those
who handle radiopharmaceutical
substances, including licensure,
security, recordkeeping, and reportiQ.g
requirements, which in many cases are
morn stringent than tl1e DEA's
requirements. However, the DEA
estimates cost savings will be realized
from the removal of the administrative,
civil. and criminal sanctions for those
entities handling or proposing to handle
1
[ 2:iI]ioflupane, in the form of saved
registration fees, and the elimination of
additional physical security,
record.keeping, and reporting
requirements.
Because of these facts. this rule will
not result in a significant economic
impact on a substantial number of small
entities.
Unfu:rided Mandates Reform Act of 1995

31525

List of Subjects in 21 CFR part 1308
Administrative practice and
procedure, Drug traffic control,
Reporting and recordkeeping
req11irements.
For the reasons set oul above, 21 CFR
part 1308 is p_roposed to be amended to
read as follows:
PART 1308-SCHEOULES OF
CONTROLLED SUBSTANCES
• 1. The authoritv citation for 21 CFR
part 1308 continues to read as follows:

Authority~ 21 U.S.C. 811,. 812, 871(b).
unless .otherwise noted.
• 2. In§ 1308.12, revise paragraph (b)(4)

to read as follows:
§ 1308.12

"

Schedule II.

(b),. " *

"

*

(4) Coca leaves (9040) and any salt,
compound, derivative or preparation of
coca leaves (including cocaine (9041)
and ecgonine (9180) and their salts,
isomers, derivatives and salts of isomers
and derivatives), and any salt,
compound, derivative, or preparation
thereof which is chemically equival!mt
or identical with. any of these
substances, except that the substances
shall not include:
(i) Decocai.nized coca le.aves or
extraction of coca 1eaves, which
extractions do not contain cocaine or
ecgonine; or
(ii) [123l]ioflupane.

On tha basis of information contained *
in the ''Regulatory Flexibility Act"
Dated: May 6. 2015.
section above, the DEA has determined
Michele M. Leonhart,
and certifies pursuant to the Unfunded
Administrator.
Mandates Reform Act of 1995 (UMRA),
[FR Doc. 2015-13455 Piled fi- 2- 15; 8:45 am]
2 U.S.C, 1501 et seq., that this action
would not result in any federal mandate BILLING CODE 441<Hl9---P
that may result "in the expe-nditure by
State, local, and tribal governments, in
the aggregate, or by the private sector·, of DEPARTMENT OF STATE
$100,000,000 or more (adjusted for
22 CFR Parts 120, 123, 125, and 127
inflation) in any one year * * * ."
[Public Notice 9149]
Therefore, neither a Small Government
Agency Plan nor any other action is
RIN 1400-AO70
re.quired under provisions of UMRA.
Paperwork Reduction Act

International Traffic in Arms: Revisions
to Definitions of Defense Services,
Technical Data, and Public Domain;
Definition of Product of Fundamental
Research; Electronic Transmission
and Storage of Technical Data; and
Related Definitions

This action does not impose a new
collection of information requirement
under the Paperwork Reduction Act, 44
U.S.C. 3501-3521. This nction would
not impose record.keeping or reporting
requirements on State or loc-tl
AGENCY: Department of State.
governments, individuals, businesses, or
ACTION: Proposed rule.
organizations. An agency may not
- -- -- - - -- -- - conduct or sponsor, and a person is not SUMMARY: As pwt of the President's
required to respond to, a collection of
Export Control Reform (ECR) iniliative,
information unless it displays a
the Department of State proposes to
currently valid 0MB control number.
amend the International Tr.iffic in Arms

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 58 of 70
31526

Federal Register/Vol. 80, No. 106/Wednesday, June 3, 2015/Proposed Rules

Regulations (JTAR) to update the
definitions of "defense article,"
"defense services,·• "'tedm.ical data,"
"public domain," "export." and
"reexport or retrai:1sfer'' in order to
clal'ify the scope oJ activHi es and
information that rure oovered within
these definitions and harmonize the
definitions with the Export
Administration Re.,g ulations. (EAR), to
thl'! extent approp1fate. Additionally, the
Department proposes to c,eate
definitions of "required," "technical
data that arises du:ring, or results from.
fundamental research,'' "release,''
''re.transfer," and '"activities that are not
exports, reexports, or ret:ransfers" in
order to clarify and support the
interpretation of the revised definitions
that are proposed jn trus rulemaking.
The Department piropose.s to create new
sections detailing the scope of licenses,
unauthorized releatSes of information,
and the "release" oJ secured
information, and r;evises the sections on
" exports" of ''technical data'' to U.S.
persons abroad. .Finally. the Department
proposes to address the electronic
transmission and storage of unclassified
" technical data" viia foreign
communkations infrastructure. This
rulemak.ing propos:es that the electronic
transmission of unclassified " technical
data' ' abroad is not an "export,"
provided that the data is sufficiently
secured to prevent access by foreign
persons. Additionally, this proposed
rule would allow for the electronic
storage of unclassilfied ''technical data"
abroad, provided that the data is
secured to prevent access by parties
m1authorized to access snch data. The
revisions contained in this proposed
rule are part qf the Department of State's
retrospective plan ·under Executive.
Order 13563 first s·ubmitted on Allgust
17,2011.
DATES: The Department of State will
accept comments o•n this proposed rule
until August 3, 201,5.
ADDRESSES: Interested parties may
submit comments l-vithin 60 days of the
date of publication by one of the
following methods:
• Email: DDTCPublicComments@
:ubject line, "ITAR
state.gov with the ~
Amendment- Revisions to Definitions;
Data Transmission and Storage."
• Internet: At www.regulations.gov,
search for this noti!: e by using this rule's
RIN (HOO-AD70).
Comments received after that dale
may be considered,. but consideration
cannot be assured. Those submitting

confidentiality is asserted because those
comments and/or transmittal emails
will be made available for public
inspection and copying after the close of
the comment period via the Dfrectora'.te
of Defense Trade Controls Web site at
www.pmddtc.state.gov. Parties who
wish to comment anonymously may do
so by submitting their comments via
www.rcgvlations.gov, leaving the fields
that would identify the commenter
blank and including n o identifying
information in the comment itself.
Comments submitted via
www.regulations.gov ate immediately
available for public inspection.
FOR FURTHER INFORMATION CONTACT:

Mr.

C. Edward Peru-tree, Director, Office of
Defense Trade Controls Policy,
Department of State, telephone (202)
663- 1282; email DDTCResponseTeam@
state.gov. ATTN: ITAR AmendmentRevisions to Definitions; Oata
Transmission and Storage. The
Department of State's full rettospP.ctive
plan can be accessed at http://
v.rww.state.gov/d ocum eI1ts/ organization/
181028.pdf.

The
Directorate of Defense Trade Controls
(DDTC}, U.S. Department of State.
administers the International Traffic in
Arms Regulations (IT AR) (22 CFR parts
120 tru:ough 130). The items subject lo
the juri.sdjt:tion of the ITAR, i.e.,
"defense articles" and "defense
services," are identified on the ITAR' s
U.S. Mun itions List (USML) (22 CFR
121.1). With few exceptions, items llOt
subject to the export control jurisdiction
of the lTAR arc subject to the
jurisdiction of the Export
Adminisfrati.on Regulations (''EAR,' " 15
CFR parts 730 through 774, which
includes the Commerce Control U st
(CCL) in Supplement No. 1 to part 774),
adnunistered by the Bureau of lndustry
and Security (BIS), U.S. Department of
Commerce. Both the 1TAR c;10d the EAR
impose license requirements on exports
and reexports. Items not subject to the
ITAR or lo the exclusive licensing
jurisdiction of any other set of
regulations are subject to the EAR
BIS is c·oncurrentiy publishing
comparable proposed amendments (BIS
companion r.nle) to the definitions of
" technology," "required," "peculiarly
responsible," ·'published," results of
"fundamental research," ..export,"
"reexport.'' "release,'' and "transfer (incountry)" in the EAR. A side-by-side
comparison on the regulatory text
SUPPLEMENTARY INFORMATION:

comments should not include any

proposed by both Departments is

personally identifying information they
do not desire to be made public or
i nformation for wh:ich a claim of

available on both agencies' Web sites:
www.pmddtc.s-tate.gov and
www.bis.doc.gov.

1. Revised Definition of Defense Article
The Department proposes to revise
the definition o.f "defense article'' to
clarify the scope of the definition. The
current text of§ 120.6 is made into a
new paragraph (a), into which software
is added to the list of things that are a
"defense article" because software is
being removed from the definition of
" technical data." This is not a
substantive change.
A new § 120.6(b) is added Lo list those
items that the Department has
determined should no~ be a "defense
article," even though they would
otherwise meet the definition of
''defense article.'' All the items
described were formerly excluded from
the dcfin.ition of " technical data'' in
§ 120.10, These items aie declared lo be
not subject to the TTAR to parallel the
EAR concept of "not subject to the
EAR" as part of the effort to harmonize
the ITAR and the EAR. Tlris does not
constitute a change in policy i;egarding
these items or the scope ofitems that are
defense articles.
2. Revised Definition of Technical Data
The Department proposes to re,vise
the definition of "technical data'' in
ITAR § 120.10 in order to update and
clarify the scope of information that
may be captured within the definition.
Paragraph (a)(1) of the revised definition
defines " technical data" as information
")'equired'' for the "development,"
" ptodnction," op eration, installation,
maintenance, repair, overhaul, or
refurbishing of a ·'defense article,"
which harmonizes with the definition of
" technology" in the EAR and the
Wassenaar Arrangement. This is not a
change in the scope of the definition,
and additional words deseribing
activities that were in the prior
definition are included in parenthelicals
to assist exporters.
Paragraph (a)(l) also sets forth a
broader range of examples of formats
tliat " technical data" may take, such as
iliagrams, models, formulae , tables,
engineering designs and specifications,
computer-aided design nlcs, manuals or
documentation, or electronic media,
that may constitute "technical data."
Additionally, I.be revised definition
includes certain conforming changes
intended to reflect the revised and
newly added defined terms proposed
elsewhere in this rule.
The proposed revised definition also
includes a note clarifying that the
modification of the design of an existing
item creates a new itei;n and that the

"technical dat-a'' for the. modification is
"technical data'' for the new iten1.
Paragraph (a)(2) of the revised
definition defines "technical data'' as

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 59 of 70
Federal Registe1·/Vol. 80, No. 106/Wednesday, June 3, 2015/Proposed Rules
also including information that is
enumerated on the USML. This wi11 be
"technical data' · that is positively
described, as opposed to "technical
data" described in the standard catch-all
"technical data'' control for all
"technical data" rlirectly related to a
"defense article" described in the
relevant category. The Department
intends to enumerate certain controlled
"technical data" a.s it continues to move
the USML toward a more positive
control list.
Paragraph (a)(3) of the revised
definition defines "technical data" as
also including cla1ssified information
that is for tbe "developn1ent,"
'·production,'' ope,ration, installation.
maintenance, repair, overhaul, or
refurbishing of a '' defense article·' or a
600 series item sulbject to the EAR.
Paragraph (a)(S) of the revised definition
defines "technical data'' as also
including information to access secured
"technical data" in clear text, such as
decryption keys, passwords, or network
access codes. In support of the latter
change, the Department also proposes to
add a new provisicm to the list of
violations in§ 127 .l(b)f4) to state that
any disclosure of these decryption keys
or passwords that results in the
unauthorized disclosure of the
"technical data" o;r software see1ired by
the encryption key or password is a
violation and will constitute a violation
to the same extent as the "export" of the
secured information. For example. the
"release" of a decryption key may result
in the unauthorized disclosure of
multiple files containing "technical
data" hosted abroad and could therefore
constitute a violation of the IT AR for
each piece of "technical data" on that
server.
Paragraph {bl oftbe revised definltion
of "technical data" excludes nonproprietary general system descriptions,
information on bas:ic function or
purpose of an item, and telemetry data
as defined in Note 3 to USML Category
XV(f) (§ 121.1). ltf-uns formerly identified
in this paragraph, principles taught in
schools and "public domain"
information, have been moved to the
new ITAR § 120.6(lb).
The proposed deJinition removes
software from the definition of
''technical data.'' Specific and catch-all
controls OD software will be added
elsewhere throughout the ITAR as
warranted, as it will now be defined as.
a separate type of '"defense article.'"
3. Proposed Definiltion of Required

The Department proposes a definftfon
of "required" in a new§ 120.46.
"Required" is used in the definition of
"technical data'' a.nd has, to this pofat

been an undefined terrn in the 1TAR.
The word is also used in the controls on
technology in both the EAR and the
Wassenaar Arrangement, as a defined
term, which the Department is now
proposiug to adopt:

31527

article that is in "production," and not
otherwise enumerated on the ITAR. The
fourth release is for information that
was developed with knowledge that it is
for both a "defense article" and a nondefense article. The fifth release is
information that was dtweloped for
. . . [O]nly tl1at portion of ftcchnical data]
that is peculiarly responsible for-achieving or general purpose commodities.
In the companion rule, BIS proposes
exceeding the controlled performance levels,
chai:acteristics; o.r functions. Such required
to make Note 3 into a stand-alone
[tec,h.n1cal data] ma.y be shared by dilforenl
definition for "peculiarly responsible"
products..
as i t has application outside of the
The proposed definition of "required" definition of "required." The substance.
of Note 3 and the BIS definition of
contains three notes, These notes
"peculiarly responsible" arc identical.
explain how the definition is to be
DDTC asks for conurnmts on the
applied.
placement of this concept.
Note 1 provides that the definition
explicitly includes information for
4-. Proposed Definitions of Development
meeting not only controlled
and Pro<luction
performance levels, but also
The Department proposes to add
characteristics and functions. All items
§ 120.47 for the definition of
described on the USML are identified by
"development" and § 120.48 for tho
a characteristic or function.
definition of " production.'' These
Additionally, some descriptions include
definitions are currently in Notes 1 and
a perfonrtanr;e level. A s an example,
2 to paragraph (h)(3) in§ 120.41, the
USML Category VIII(a)(l) controls
definition of "specially designed."
-aircraft that are "bombers" and contains Because "technical data" is now
no performance level. The characteristic defined, in part, as information
of the aircraft that is controlled is that
"required" for the "development" or
it is a bomber, and therefore, any
"production" of a "defense article," and
"ter.hnical data" peculiar to making an
these words are now used in the
aircraft a bomber i.s "required. "
definition of a "defense service," it is
Note 2 states that, with the exception
appropriate to define these terms. The
of "technical data" specifically
adoption of these definitions is aJso
enumerated on the USML, the
done for the purpose of harmonization
jurisdictional status of unclassified
because these definitions art! also used
"technkal data" is the same as that of
in the EAR and by the Wassenaar
the commodity to whfoh it is directly
Arrangement.
related. Specifically, fl explains that
"technical data" for a part or component 5. Revised Definition of Public Domain
of a ''defense article" is directly related
The Department proposes lo revise
to that part or component, and if the
the defin~tion of ., public domain" in
part or component is subject to the EAR, IT AR§ 12().11 in order to simplify,
so is the "technical data."
update. and introduce greatel' versatility
Note 3 establishes a test for
into the definition. The existing version
determining if information is peculiarly of IT AR§ 120.11 relies on an
responsible for meeting or achieving the enumerated list of circumstances
controlled performance levels,
through which "p1,1.blic domain''
characteristics or functions of a
information might be published. The
''defense article." It uses the same ca!ch- Department believes that this definition
and-release concept that the Department is unnecessarily limiting in scope and
implemented in the definition of
insufficiently flexible with respect to
··specially designed." It has a similarly
the continually evolving array of media,
broad catch of aH information used ill or whether physicaJ or electronic. through
for use in the "development."
which information may be
''production," operation, installation,
disseminated.
maintenance, repair, overhaul, or
The proposed definition is intended
refurbishing of a" defense article." It has to identify the characteristics that are
four releases that mirror the ''specially
common to all of the enumerated forms
deslg11ed" releases, and one reserved
of publication identified in the current
paragraph for information that the
rul~with the exception of fTAR
Department determines is generally
§ 120.11(a)(8), which is addressed in a
insignificant The first release is for
new definition for "technical data that
information identified in a commodity
arises during. or results from.
jurisdiction determination. The second
fundamental research"-and to present
release is reserved. The third release is
those common characteristics in a
for information that is identical to
streamlined definition that does not
information used in a non-defense
require enumerated identification

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Federal Register/Vol. 80, No. 106/Wednesday, June 3, 2015/Proposed Rules

within the IT AR of every current or
future qualifying publication scenario.
Additionally, the proposed definition
incorporates phral;es such as "generally
accessible" and " without restriction
upon its further ditssemination" in order
to better align the definition found in
the EAR and more closely aligned ,vith
the definition in the Wassenaar
Arrangement control lists.
The proposed d,efinition requires that
information be made available to the
public with out res:trictions 011 its further
dissemination. An.y information that
·meets this definition is "public
domain." The definition also retains an
exemplary list of information that has
been made ava.ilabile to the pubJic
without restriction and would be
considered " public domain.;. These
include magazines, periodicals and
other publications available as
subscrip tions, publications contained in
libraries, informatfon made available at
a public conference, meeting, seminar,
trade show, or exhibition, and
information posted on public Web sites.
The final example deems information
that is submitted t,o co-authors, editors,
or reviewers or conference organizers
for review for publication to be "public
domain,'' even pri,or to actual
publication. 'The relevant restrictions do
not include copyright P-rotections or
generic property rights in the
underlying pb.ysical medium.
Paragraph (b) of the revised definition
explicitly sets forth the Department's
requirement of authorization to release
information into the "public domain."
Prior to making available "technical
data' · or software subject to the lTAR,
the U.S. governme;nt must approve the
release through on,e of the following: (1)
The Department; (;n the Department of
Defense's Office of Security Review; (3)
a relevant U.S, government contracting
authority with authority to allow the
" technical data" m· software to be made
available to the pulblic, if one exists; or
(4) another U.S. government official
with authority to allow the "technical
data" or software to be made available
to the public.
The requirements of paragraph (b) are
not new. Rather, they are a more explicit
statement of the IT.AR's requirement
that one must seek and receive a license
or other authorizatiion from theDepartment or othHr cognizant U.S.
government authority to release !TAR
controlled "techni~:al data," as defined
in§ 120.10. A release of "technical
data" may occur by disseminating
" technical data" at a public conference

or trade show, pubilishing "teGhnjc:al
data" in a bouk or journal article, or
posting "'technical da,t a" to the Internet.
This proposed provision will enhance

compliance with the ITAR by clarifying
that " teclmical data" may not be made
available to the public without
authorization. Persons who ~1:itend to
discuss "technical data'' at a conference
or trade show, or to publish it, must
ensure that they obtain the appropriate
authorization.
Informal.ion thal is excluded from the
definition of "defense article' · in the
new § 120.6{b) is not "technical data"
and therefore does not require
authori7.alion prior to release into the
"public domain." This includes
information that arises during or results
from " hmdamental research," as
described in the new § 120.49; general
scientific, mathematical, or engineering
principles cDmmonly taught in schools,
and information that is contained in
patents.
The Department also proposes to add
a new provision to§ 127,1 in paragraph
(a)(6) to state explicitly that the further
dissemination of "technical data•· or
software that was made avaiJable to the
public without authorization is a
violation oflhe ITAR. if, and only if. it
is done with knowledge that the
"technical data" or software was made
publicly available without an
authorization described in IT AR
§ 1ZO.ll(b)(2). Dissemination of publicly
available "teclutlcaJ data" or softwaxe is
not an export-controlled event, and does
not roqi1ire authorization from the
Department, in the absence of
knowledge that it was made publicly
available without authorization.
"Technical data" and software that is
made publicly available wilhout proper
authorization remains ''technical data"
or software and therefore remains
subject to the fI'AR. As such, the U.S.
government may advise a person that
the originaJ release of the "technical
data" or software was unauthorized and
put that person on notice that further
dissemination would violate th.e IT AR.

"technical data that arises during, or
results from, fundamental research" is
consistent with the prior rfAR
§ 120.11(a)(8}, except that the
Department has expanded the scope of
eligible research to include research that
is funded, in whole or in part, by tho
O.S, government.,
7. Revised Definition of Export

The Department proposes to revise
the definition of "export" in ITAR
§ 120.17 to better align with the EAR's
revised definition of the term and to
remove activities associated with a
defense article'.s further movement or
release outside the United States, which
will now fall within the definition of
"reexport" in § 120.l 9. The definition is
revised to explicitly identify that !TAR
§§ 126.16 and 126.17 (exemptions
pursuant to the Australia and UK
Defense Trade Cooperation Treaties)
have their own definitions of "export,"
which apply exclusively to those
exemptions. Et also explicitly references
the new§ 120.49, "Activities that are
Not Ex:ports, Reexports, or Rettansfers."
which excludes from ITAR control
certain transactions identified therein.
Paragraph (a)(l) is revised to parallel
the definition of "export" in proposed
paragraph (a)(1) of § 734 .13 of the EAR.
Although the wording has changed, the
scope of the control is the same. The
provision excepting travel outside of the
United States by persons whose
personaJ knowledge includes "technical
data" is removed, but the central
concept is unchanged. The "release" of
''technical data'' lo a foreign person
while in the United States or while
travelling remains a cont.rolled event.
Paragraph (a)(2) includes the control
listed in the current§ 120.17(al(4)
(transfer of technical data to a foreign
person). Tho proposed revisions replace
the word "disclosing" with "releasing,''
and the paragraph is otherwise revised
to parallel proposed paragraph (a)(2} of
6. Prnposed Definition of Technical
§ 734.13 of the EAR. "Release" ls a
Data That A.rises During, or Results
newly defined concept in § 120.50 that
From, Fundamental Research
encompasses the previously undefined
The Department proposes to move
term "disclose."
"fundamental research" from the
Parngraph (a)(3) includes the control
definition of "public domain" in rrAR
listed in the current§ 120.17(a)(2)
§ 120,11(a)(8) and define "technical data (tr-dnsfor of registration, control, or
that arises during, or results from,
ownership to a foreign person of an
fundan1ental research" in a new ITAR
aircraft, vessel, or satellite). It is revised
§ 120A9. Tbe Department believes that
to parallel proposed paragraph (a)(3) of
information that arises during, or results §734.13 oftheEAR.
from fundamental xesearch is
Paragraph (a)(4) includes the control
conceptually distinguishable from the,
listed in the current§ 120,17(a)(3j
information that would be captured in
(transfer in the United States to foreign
the revised definition of "public
embassies).
domajn" that is proposed in this rule.
Paragraph (a)(S) maintains the control
Accordingly, the Department proposes
on performing a "defense sen•ice."
to address this concept with its own
Paragraph (a)(6) is added for the
definition. The new definition of
''release" or transfer of decryption keys,

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passwords, and other items identified in
the now paragraph (a)(S) of tb.e revised
definition of " technical data" in
§ 120.10. This par.agra ph makes
"release" or translfer of information
securing '·technical data' ' an "export."
Making the releas,~ of decryption keys
and other informal.ion securing
technical data in elll inaccessible or
unreadable format. an export allows the
Department to propose that providing
someone with encrypted "technical
data" would not be an "export." under
certain circumstauce s. Provision of a
decryption key or other information
securing "technicnl data'' is an "export"
regardless of whet her the foreign person
bas already obtained access to the
scr:ured "technical <lata.'' Paragraph
(a)(6) of the definitions of export and
reexport in this rule and the BIS
companion rule present diffortmL
formulations for this r.outrol and lbe
agenc:ies request input from the pubUc
on which lan.guago more clearly
describes the control. The agencies
intend, however, that the act of
providing physica1 access to unsecured
"technical data" (m1bjecl to the IT AR)
will be a controlled event. The mere act
of providing acces:s to unsecured
technology (subject to the EAR) will not.
however, be a controlled event unless it
is done with "knowledge" that such
provision will cause or permit the
transfer of controlled " technology" in
clear text or "software" to a foreign
national.
Paragraph (a)(7) is added for the
release of information to a public
network, such as U1e Internet. This
makes more explicit the existing control
in (a)(4), which includes the publication
of " technical data" to the Internet due
to its inherent acae,ssibility by foreign
persons. This means that before posting
information to the Internet. you should
determine whether the information is
"technical data." You should review the
USM!,, and ifthtu·e: is doubt abou t
whether the information is "technical
data,'' you may 1equest a commodity
jurisdiction determinatio n from the
Department. If so, a license or other
authorization , as d,~scribed in
§ 120.11 (b), will generally be required to
post such "technical data" to the
Internet. Posting "technical data" to the
Internet without a Department or other
authorization is a violation of lhe JT AR
even absent specific knowledge that a
foreign national will read the "technical
data."
Paragraph (b)(l) iis added to clarify
existing LTAR conti:ols to explicitly state
thal disclosing " technical data" to a
foreign person is duemed to be an
" export" to all countries in whir:h the

foreign person has held citi.7.enship or
holds permanent -residency.
8. Revised Definition of Reexport

The Department proposes to reviso
the definition of "reexport'' in lTi\R
§ 120. l 9 to better align with the EAR's
revised definition and describe transfers
of items subject to the jurisdiction of the
ITAR between two foreign countries.
The activities identified are the same as
those in paragraphs (a)(l) through (4) of
the revised definition of '·export,"
except that the shipment, release or
transfer is between two foreign
countries or is to a third country
national foreign person outside of the
United States.
9. Proposed Definition of Release
The Department proposes to add
§ 120.50, the definition of "release."
This term is added to harmonize with
the EAR, which has long used the term
to cover activities that disclose
information to foreign persons.
"Release" includes the activities
encompassed within the undefined term
"disclose." The activities that are
captured ludude allowing a foreign
person to inspect a ''defense article'' in
a way Lhat reveals "technical data" to
the foreign persons and oral or written
exchanges of "technical data'' with a
foreign person. The adoption of the
definition of "release" does not cbaoge
the scopu of activities that constitute an
"export" and other cootrolled
transactions under t.b.c ITAR.
10. Proposed Definition ofRetransfer
The Depnrunent proposes to add
§ 120.51. tho definition of "retransfer.··
"Retransfor" is moved out of the
definition of "reexport" in§ 120.19 to
better harmonize with U1e EAR, which
controls "exports," "reexports" and
"transfers (in country)'' as discrete
events. Under this new definition, a
"retransfer" oc.:curs with a c.:hange of end
use or end user within the same foreign
territory. Certain activities may fit
within the definition of "reexport" and
"retransfer." such as the disclosure of
"techuical data" to a third country
nationaJ abroad. RequAsts for both
"reexports" and "retransfers" of
"defense articles" will generally be
pror:essed through a General
Corresponden ce or an exemption.
11. Proposed Activities That Are Not
Exports, Reexports, or Retransfers
The Department proposes to add
§ 120.52 to describe those "activities
that a:re not oxports, reexports, or
retransfers" and do not require
authorization from the Department. ll is
not an "export" to Jaw1ch items into

31529

space, provide " technic.al data" or
solhvare to U.S. persons while in the
United States, or move a "defense
article" between tl1c stales, possessions,
and territories of the United States- The
Department also proposes to add a new
provision excluding from ITAR
licensing requirements the trnnsmission
and storage of encrypted "technical
data" and software.
The Department recognizes that ITARcontrolled "tecbnicol data" may be
electronically routed through foreign
servers unbeknownst to the original
sender. This presents a risk of
unauthorized access and creates a
potential for inadvertent ffAR
violations. For example, emall
containing "technicaJ data" may,
without the knowledge of the sender,
transit a foreign country's internet
service infrastructure en route to its
intended and authorized final
destination. Any access to this data by
a foreign pe1son would constitute an
unauthorized "export" under IT AR
§ 120.J 7. Another example is the use of
mass data storage (i.e., "cloud storage").
In this case, "lechnir.al data" intended
to be resident in cloud storage may,
without the knowledge of the sender, be
pbysir.ally stored on a server or servers
located in a foreign count.ry or multiple
countries. Al1y access to this data, even
if unintended by the sender, would
constitute an ' 'export" lmder JTAR
§120.17.
The intent of the proposed IT AR
§ 120.52(a)(4) is lo clarify that when
unclassified "techuical data" transits
through a foreign country's Internet
service infrastructure , a license or other
approvnl is not mandated when such
"technical data" is encrypted prior to
leaving the sender's facilities and
remains encrypted until received by the
intended recipient or retrieved by the
sencler, as in the case of remote storage.
The encryption must be accomplished
in a manner that is certified by the U.S.
National l.nstitute for Standards and
Technology (NIST) as compliant with
the Federal Information Processing
Standards Public.:ation 14<>-2 (FIPS 14~
2). Additionally , the Department
proposes that the electronic storage
abroad of "technical data" that has been
similarly 1mcrypted would not require
an authorization , so long as it is not
stored in a§ 126.1 country or in the
Russian Federation. This will allow for
cloud storage of encrypted data in
foreign countries, so long as thi:1
"technical data" remains continuously
encrypted while outside of the United
States.

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12. Revised Exemption for the Export of
Technical Data foir U.S. Persons Abroad
The Department proposes to revise
§ 125.4(b){9) to better harmonize
controls on the "wlease" of controlled
information to U.S. persons abroad and
to update the provisions. The most
significant upaate is that foreign
persons authorized to receive ''technical
data'' in the United States will be
eligible to receive that. same .. technical
data" abroad, when on temporary
assignment on behalf of their employer.
The proposed revisions clarjfy that a
person going abroad may use this
exemption to "export" " technical data"
for their own use a,broaiL The proposed
revisions also clarify that the ''technical
data" must be seemed while abroad to
prevent unauthori:ied ''release. " It has
been long-standing Department practice
to hold U.S. persons responsible for the
"release" of "technical data" in their
possession while abroad. However,
given the nat1,1re of ·•technical data" and
the proposed exception froni licensing
for transmission of secured "technical
data," the Department has determined it
is necessary to implemP..nt an affirmative
obligation to secur;e data while abroad.

rule (the fust rev1sion), r;ee 78 FR 31444,
May 24, 2013. The Department's
evaluation of the written comments and

recomrnendalions in response to the

May 24, 2013 proposed rule (the second
revision) follows.
Parties commenting on the second
revision expressed concern that the
definition of "defense service" in
paragraph (a)(1 J was premised on the
use of "other than public domain
information." The observation was
made that with the intent of removing
from the definition of a " defense
service" the. furnishing of assistance
using "public domain" information, but
not basing the assistance on the use of
·'technical data," the Department was
continuing to require the licensing of
activities akin to those that were based
on the use of "public domain"
information. The Department has fully
revised paragraph (a)(1) to remove the
use of the "other than public domain
in:fonnation'' or ''technical data" from
the determination of whether an activity
is a "defense service." Furthermore, the
Department has added a new provision
declaring that the activities described in
paragraph (a)(l) are not a "defense
service" if performed by a U.S. person
or foreign person in the United States
13. Proposed Scope of License
who does not have knowledge of U.S.The Department proposes to add
origin "technical data' ' direcU y re-lated
§ 123.28 to clarify the scope of a license, to tho "defense article" that is the
in the absence of a proviso, and to state
subject of the.assistance or trainfog or
that authorizations are granted based on another "defense article" described in
the information provided by the
the same USML paragraph prior to
applicant. This moans that while
performing the service, A note is added
providing false information to !he U.S.
to clarify that a person will be deemed
government as part: of the applit.ation
to have knowledge ofTJ.S.-origin
process for the ''export," " reexport," or
"technical data" if the person
"re-b:ansfer" of a " defense article" is a
previously participated in the
violation of the ITAR. it also may void
"development" of a " defense article"
the license.
described in the same USML paragraph.
or accessed (physically or
14. Revised Definition of Defense
electronically) thal " technical data. " A
Service
note is also added to clarify that those
Proposed revisions of the "defense
U.S. persons abroad who only received
service'' definiti_on were published on
U.S.-origin "technical data'' as a result
April 13 , 2011, RIN 1400- ACB0 (see
of their activities on behalf of a foreign
"International Traffic in Arms
person are not included within the
Regulations: Defon:se Services," 76 FR
scope of paragraph (a)(1). A third note
20590) and May 24, 2013 {see 78 FR
is added to clarify that DDTC-authorized
31444, RIN 1400--AC80J. In those rules,
foreign person employees in the United
the Department explained its
States who provide ' 'defense services"
determination that the scope of lbe
on behalf of their U.S. employer are
current definition is overly broad,
considered to be included with the U.S.
capturing certain forms of assistance or
employer's authorization, and need not
services that no lornger warrant ITAR
be listed on the U.S. employer's
control.
technical assistance agreement or
The Department. reviewed comments
receive a separate authorization for
on that first proposed definition and,
those services. The Department also
when the recommended changes added removed llie activities of design,
to the clarity of the regu.lation, the
development, and engineering from
Depa;tmo..at accepted them. For the
paragraph (a)(1) and moved them to
Department 's evalu.a tion of those public paragraph (a)(2).
comments and recornunendations
Commenting parties recommended
regarding the April 13, 2011, proposed
revising paragraph (a)(l) to remove tho

provision of "technical data" as a
"defense service," because there are
aJready Jicensing requirements for the
"export" of "technical data." The
Department confirms that it eliminated
from !he definition of a "defense
service" the act of furnishing "technical
data" lo a foreign person. Such activity
still constitutes an "export" and would
require an ITAR a1,1thorization. New
paragraph (a)(l) is concerned with the
furnish ing of assistance, whereas tl1e
"export" of ''technical rlata" alone,
without the furnishing of assistance, is
not a " defense service.'' The "cxp01t" of
''technical data" requires an_
authorization (Department of State form
DSP-5 or DSP- 85) or the use of an
applicable exemption.
Commenting parties recommended
the definition be revised to explicitly
state that it applies to the furnishing of
assistance by U.S. persons, or by foreign
persons in the United States. The
Depatb:nent partially accepted this
recommendation. Ifowever, the
Department notes that ITAR § 120.1(c)
provides 1hat only U.S. persons and
foreign governmental entities in the
United States may be- g1'anted a license
or other approvaJ pursuant to the IT AR,
and that foreign persons may only
receive a "reexport" or "re-transfer"
approval or approval for brokering
activities. Therefore, approval for tho
performance of a defense service in the
United States by a foreign person must
be obtained by a U,S. person, such as an
employer, on behalf of the foreign
person. Regarding a related
recommendation, the Department also
notes that the furnishing of a type of
assistance described by the definition of
a ''defense service" is not an activity
within the Departn1ent's jurisdiction
when it is provided by a foreign pctson
outside the United States to anothP-r
foreign person outside tbe United Statfls
on a foreign "defense article" using
foreign-origin "technical data."
111 response to commenting parties,
the Department specified that the
examples it provided for activities that
a.re not "defense services'' are not
exhaustive. Rather, they are provided to
answer the more frequent questions the
Department receives on the matter. The
Department removed these examples
from paragraph (bl and included them
as a note to paragraph (a).
A commenting party recommended
that paragraphs (a)(5) and (a)(6),
regarding the fu.rnishing of assistance in
1he integration of a spacecraft to a
laU11ch vehicle anrl in the launch failure

analysis of a spacecraft or launch
vehicle, respectively, be removed, and
that those activities be described in the
USML categories covering spacecraft

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and launch vehicles, on the basis thal a
gcnernl definition should nol have such
program-specific dauses. As discussed
in the May 13, 2014 interim final rule
revising USML Category XV (79 FR
27180), the Department accepted this
recommenda tion and revised paragraph
(f) oflJSML Category XV and paragraph
(i) of USML Catcg:ory [V accordillgly.
The revision includes the
recommenda tion of commenting parties
to specifically pmvide that the service
must be provided tu a foreign person hi
order for it to be a, licensable activity.
Commenting parties recommende d
Uie Department d, fine the lcrm "tactical
e
employment, " so as to clarify what
services would be captured by
paragrap}1 (a)(3). The Department
determined that employment of a
"defense article"' should remain a
controlled event. due to the nature of
ilems now controlled in lhe revised
USML categories. After ECR. those items
that remain "defe.nse articles" are the
most sensitive and militarily critical
equipment that have a significant
national securily or intelligence
application. Allovvin,g training and other
services to foreign. nationals in the
employment of these "defense articles''
without a license would not be
appropriate. Thernfore, the Department
removed the word! •·tactical" and
converted the exi~1ting exemption for
basic operation of a "defense article,''
authorized by the U.S. government for
"exporl" to the sa:mo recipient, into an
exclusiori from paragraph (a)(3).
A commenting party recommende d
the Department address the instance of
the iotegra1ion or installation of a
" defense article" into an itom, much as
it adclressed the i111stance of the
integration or installation <Jf an item
into a " defense article." Previously, the
Department indicated this would be the
subject of a separale rule, and addressed
the " export" of such items in a
proposed rule (sec· 76 FR 13928), but
upon review the Department accepted
tbis recommenda lion. and revised
paragraph (a)(2), the note to paragraph
(a)(2), and the not!! to paragraph (a)
accordingly. In addition, the
Department has changed certain
terminology used iin the paragraph;
instead of referring to the "transfer-" of
"technical data,' ' the paragraph is
premised on the ··use" of "technical
dala.'' This change, is consistent with
removing from the definitio11 of a
''defense service" the furnishing of
"technical data'' to a foreign person
wben there is not also the furnishing of
assistance related to that ··technical
data.''
A commenting party requested
clarification of the rationale behind

selectively excepting from the '·defense
services" definition the furnishing of
services using "public domain"
information. The Departmenl did so in
paragraph (a)(l), and now excludes
those services performed by U.S.
persons who have not previously had
access to any U.S. origin "technical
data" on the "defense article" being
serviced. Ju contrast. the Department
di d not do so in paragraphs (a)(2) and
(a)(3) and former paragraphs (a)(S) and
(a)(6). lo the case of paragraph (a){2), the
rationale for not doing so is lhat the
activities involved in the developrnent
of a "defense article," or in integrating
a " defense article' ' with another item,
inherenl1y involve the advancement of
the military r.apacity of another cow1try
and therefore constitulc activities over
which the U.S. government has
significant national securily and foreign
policy concerns. To the extent that an
activity listed in paragraph (a)(l), such
as modification or testing, is done in the
" development" of a " defense article,"
such activities constitute
" development " and are with.in the
scope of paragraph (a)(2). With regard to
paragraph (a)(3), the furnishing of
assistance (including training) in the
employment of a "defense article" is a
type of activity that the Department
believes warrants control as a "defense
service," due to the inherently mililru·y
nature of providing training and other
services in the employment of a
"defense article" (changes to paragraph
(a)(3) are described above). The servicos
described in former paragraphs (a)(S)
and (a)(6) (and now in USMJ, Categories
IV(i) and XV(O) are pursuant to Public
Law 105-261.
A commenti.Ag party recommende d
limiting paragraph (a)(2) to the
integration ofECCN 9A515 and 600
series items into defense articles, saying
that the regulations should focus on
items subject to the EAR with a military
or space focus. The Department's focus
with this provision is in fact the
"defense article." Items that are to be
integrated with a "defense article,"
which may not themselves be defense
articles, may be beyond the authority of
the Department to regulate. The
Department did not accept this
recommendat ion.
A commenting party recommende d
limiting the definition ofi.ntcgralion to
changes in the function of the "defense
article," and to exclude modifications in
fit. For the purposes of illustration, this
commenting party used one of the
examples provided by the Department
in the note to paragraph (a)(Z): The
manufacturer of the military vehicle
will need to know the dimensions and
electrical requirements of the dashboard

31531

radio when designing the vehicle. lo
this instance, paragraph la)(2) would not
apply, as this example addresses the
manufacture of a " defense artkle,"
whicb is covered by paragrapb (a)(l). If
lhe radio lo be installed in this vehicle
is subject to the EAR, the provision to
the manufacturer of information
regarding the radio is oot within lhe
Oeparlment's licensing jurisdiction. In
an instance of a service entailing the
integration of an item with a " defense
article,'' where there would be
modification to aoy of the items. the
Department believes such assistance
would inherently require the use of
"technical data." Therefore, this
exclusion would be unacceptably broad.
However. the Department has accepted
the recommenda tion to clarify the
definition and oxclude changes to fit to
any oftbe items involved in the
.integration activity, provided that such
services do not entail the use of
"technical data" directly related to the
"defense article." Upon review, changes
to fit are nol an aspect of integration,
which is the "engineering analysis
needed to unilA a 'defense ai-ticle' and
one or more items," and therefore are
not captured in paragraph (a)(2). The
modifications of the " defense article·· to
accommodate the fit of the item to be
inti>
..graled , wh.icl1 are within the activity
covered by instaJJation, are only those
modification s to the "defense article"
that allow the item to be placed in its
predetem1ine d location. Any
modifications to the design of a
"defense article" arc beyond the scope
of installation. Additionally, while
minor modifications may be made to a
"defense article" withou t lhe activity
being conlrollcd under (a)(2) as an
integration activity, all modlfications of
defense articles. regardless of
sophisticatio n, are activities controlled
under (a)(l) if performed by someone
with prior knowledge of U.S.-origin
''technical data." "Fit'' is defined in
ITAR § 120.41: ''The fit of a commodity
is defined by its ability to physically
interface or connect with or become an
integral part of another commodity"
(see, Note 4 to paragraph (b)(3)).
Commenting parties recommende d
revising paragraph (a)(2) to provide that
such assistance described therein would
be a " defense service" only if U.S.origi11 "technical data" is exported. The
law and regulations do not mandate this
limitation. Section 38 of the Arms
Export Control Act provides that the
President is authorb:ed to control the
"export'' of defense articles and defensA
services. The ITAR, in defining ''defense
article,'' "technical data," aorl "export,"
does not provide the qualifier " U.S.-

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 64 of 70
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Federal Register/Vol. 80, No. 106/Wedne sday, June 3, ::W15 /Proposcd Rules

origin" (see ITAR §§ 120.6, 120.10, and
120.17. respectivdy). In the instance
described by thP- commenting party, of

the integration of a commercial item

furnishing of assistance to a foreign
person , in the activities described in
paragraph (a). Therefore, in the context

in organizationa l-level (basic-level)
maintenance. The Department
harmonized paragraph (a)(l) and the
of employment with tbe university, the example regarding organir.aUonal-level
Department does not perceive that the
maintenance by revising the Note to
foreign person's use of the "technical
Paragraph (a), which sets forth activities
data" would be described by ff AR
that are not "defense services,'· so that
§ 120.9(a)(2), or any part of paragraph
it specifically provides that "the
(a).
furnishing of assistance (including
In response to the recommenda tion of training) in organizationa l-level (basicone commenting party. lhc Department
level) maintenance of a defense article"
added a note clarifying that the
is an example of an activity that is not
installation of an item into a " defense
a defense service.
article" is not a "defense service,''
In response to commenting parties.
provided oo ''technical data" is used in
the Department clarifies that the
the rendering of the service.
example of employment by a Coreign
A commenting party recommended
person of a natural U.S. person as not
clarification of the licensing process for constituting a "defense service" is
the "export" of anF.AR 600 series item
meant to address, among other
that is to be integrated into a " defense
scenarios, the instance whero such a
article." Tho Department of Commerce
person is employed by a foreign defense
has "export" authority over the 600
manufacturer, but whose employment
series item, and the exporter must
in fact does not entail the furnishing of
obtain a license from the Department of assistance as described in ITAR
CornmP.rce, if necessary. The exporter
§ 120.9(a). By "natural person," tbe
must also obtain an approval from the
Department means a human being; as
Department of State to provide any
may be inferred from the definition of
" defense service," including integration "person" provided in ITAR § 120.1,4.
assistance pursuant to paragraph (a)(2),
In response to the recommenda tion of
A commenting party recommende d
a commenting party, the Department
removing "testing" as a typo of "defense confirms that, as stated in a Department
service,'' stating it was not included in
of Commerce notice, "Technology
the definition of "organization al-level
subject to the EAR that is used with
maintenance. " 1n including testing as
technical data subject to the IT AR that
part of the former definition but not of
will be used 11ndor the terms of a
the latter, the Department does not
Technical Assistance Agreement (TAA)
perceive an inconsistency or conflict. To or Manufacturin g License Agreement
the extent that certain testing is within
(MLA) and that would otherwise require
the definition of organization- level
a license from [the Department of
maintenance, that testing is explicitly
Co.mmercel may all be exported under
excluded, as organizationa l-level
the T AA or MLA" (see 78 FR 22660). ln
maintenance is not covered under the
DDTC publication Guidelines for
definition of a " defense service."
Preparing Electronic Agreements
However, all other testing remains a
(8.evision 4.2), Section 20.1.d .. the
"defense service:' The Department
following conditions are stip1tlated1 The
intends for the furnishing of assistance
technology subject to the EAR will be
to a foreign person, whether in the
used with "technical data" subject to
United States or abroad, in the testing of the ITAR and described in the
defense articles to be an activity
agreement, and the technology subject
requiring Department approval under
to the EAR will be used under the terms
Lhe conditions of paragraph (a)(1). The
of a TAA or MI.I\ (see http:!/
Department did not accept this
www.pmddtc .statc.gov/Jicensing/
recommendat ion.
agreement.html).
Commenting parties provided
Request for Comments
recommenda tions for revising Lhe
definitions of "public domain''
The OcpartJncnt invites public
information and " technical data." Those comment on any of the proposed
definitions are proposed in this rule as
definitions set forth in this ruJcmaking.
well. To the extent that rwaluation of the With respect to tho revisions to ITAR
proposed changes to "rl11fonse services" § 120.17, the Deparnnenl recognizes the
hinges on these terms, the Department
increasingly complex nature of
invites commenting parties to submit
teJccommuni calioos inttastruclure and
analyses of the impact of these revised
the manner in which data is
definitions on the revised " defense
transmitted, stored, and accessed, and
service'' definition in this proposed
accordingly seeks public comment with

into a foreign-origin "defense article,"
the Department rolains jurisdiction
when the service is provided by a U.S.
person.
A c:onunenting party recommende d
revising paragraplh (a)(2) so that the
paragraph (a)(l) exception of the
furnishing of assistance using " public
domain'' informatfon is not nullified by
paragraph (a}(2), as most of the activities
described in paragraph (a)(1J involve
integration as dcfl.ned in the note to
paragraph (a)(Z). The Department
believes each of tho activities described
in paragraphs (a)(l) and (a)(2) arc
sufficiently well defined to distinguish
them one from tho other. Therefore, the
Department docs not agree that
paragraph (a)(Z) nullifies the intention
of paragraph {a)(1.), and does not accept
this recommendat ion.
A commenLing party requested
clarification that providing an item
subject tu the EAR for tho purposes of
integration into a '"defense article" is
not a " defense service." The prnvision
of the item in this instance,
unaccompani ed by assistance in the
integration of the ·item into a " defense
article," is not within the scope of ''the
furnishing of assistance," and therefore
is not a defense service.
Commenting parties recommende d
clarification on whether the servicing of
an item subject to the EAR that has been
integrated with a "defense article"
would be a "defense service." The
Department notes that such activity is
not a " defense service." provides it as
an example of what is not a " defense
service'' in the not'e to paragraph (a),
and also notes thall it would be
incumbent on the applicant to ensure
that in providing this service, " technical
data" directly relaied to the " defense
article" is not used,
Commenting parties expressed
concern over the potential negative
effect of paragraph (a)(Z) and the
definition in general on universitybased educational activities and
scientific communicati on, and
reconunende d clarification of the
relationship between the definition of
"defense services" and the exemption
for the "export" of "technical data" at
IT AR§ 125.4(b)(10), Disclosures of
·'technical data" tci foreign persons who
are bona-fide and full time regular
omployces of univ1ersilies continue to be
exports for which 1:TAR § 125.4(b)(10) is
ono licensing excniptjon. The
rule,
Department believ1Js that. in most cases.
Commenting parties rAcommended
the normal duties of a university
clarification of the regulation regarding
employee do not encompass tho
the furnishing of assistance and training

special emphasis on: {1) How
adequatAly the proposed regulations
address the technical aspects of data
transmission and storage: (2) whethP.T

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 65 of 70
Federal Register/ Vol. 80, No. 106 / Wednesday, June 3, 2015 / Proposed Rules
the proposed regulations mitigate
unintended or unauthorized access to
transmitted or sto1~cd data; and (3)
whether the proposed regulations
impose an undue financial or .
compliance burden on the pubhc.
The public is also asked to comment
on the effective da.te of the final rule.
Export Control Reform rules that revised
categories of the UJSML and t:reated new
600 series ECCN have had a sbc-month
dclaved effective date to allow for
exporters to update the classificati?n of
their it.ems. ln general, rules effectmg
export controls have been effective on
the date of publication, due to the
impact on national security and foreign
policy. As this pro,p osed rule and the
companion propoi1ed rule from the
Bureau of Industry and Security revise
definitions wilhin the ITAR and the
EAR and do not make any changes lo
the USML or CCL, the Department
proposes (should the proposed r~le be
adopted) a 30-day delayed effective date
to allow exporters to ensure continued
compUance.

Regulatory Analy!,is and Notices

Administrativ e Procedure Ar.t
The Department of State is of the
opinion that controll_ing the impor_ an~
t
export of defense a.rt1clcs and servwes 1s
a foreign affairs fw1ction of tho U.S.
government aud th.at rules
implementin g this function arc exempt
from sections 553 frulemaking) and 554
(adjudication s) of the Administrati ve
Procedure Act (AP A). Although the
Department is or lbe opinion Lhat this
proposed rule is exempt from the
rulemaking provisions of Lhe APA, the
Department is publlishing Lhis rule with
a 60-day provision for public comment
and without prejudice to its
determination that controlling the
import and export of defense services is
a foreign affairs fur1ction.

Unfunded Mandates Reform Act of
1995.

Small Business Rezulatory Enforcement
Fairness Act of 1996
For purposes of the Small Business
Regulatory Enforcement Fairness Ac.t of
1996 (the "Act " ). a major rule is a rule
tha t the Administrato r of the 0MB
Office of Infol'mation and Regulatory
Affairs finds has resulted or is Ukely to
result in: (1) An annual offect ou the
economy of $100,000,000 or more; (2) a
major increase in costs or prices for
consumers, individual industries,
federal, state, or local government
agencies, or geographic regions; or (3)
significant adverse effects on
competition, employment, investment,
productivHy, innovation, 01· on the
abi1ity of United States-based
enterprises to compete with foreignbased enterprises in domestic and
foreign markets.
The Department docs not believe this
rulemaking will have an annual effect
on the economy of Sl00,000,000 or
more. nor will il result in a major
increase in costs or prices for
consumers. individual industries,
federal, stale, or local government
agencies, or geographic regions, or have
significant adverse effects on
competition, employment, investment ,
productivity, innovation, or on tho
ability of United States-hased
enterprises to compete with foreign based enterprises in domestic and
foreirn market.c;. The proposed means·of
solvi~1 the issue of data protect.ion arc
g
both familiar lo and extensively used by
the affected public in protecting
sensitive information.
Executive Orders 12372 and 13132

This proposed amendment will not
have substantial direct effects on the
Stales, on the relationship between the
national government and the States, or
on the distribution of power and
Regulatory Flexibility Act
responsibiliti es among the various
levels of government. Therefore, in
Since the Department is of the
accordance with Executive Order 13132,
opinion that this propose~ rule is . .
it is determined that this proposed
exempt from the ru.lemaking provisions
amendment docs not have suffici1mt
of 5 U.S.C. 553, there is no requirement
federalism implications to require
for an analysis under the Regulatory
consultations or warrant the preparation
Flexibility Act.
of a federalism summary impact
Unfunded Mandattis Reform Act of 1995 statement. The regulations
implementin g Executive Order 12372
This proposed amendment does not
regarding intergovernm ental
involve a mandate that will result in tha consultation on Federal
programs and
expenditure by Statre, local, and tribal
activities do nol apply to this proposed
goverWTients, in th<~ aggregate, or by the amendment.
private sector. o! Sl.?O milli?n ?r more
in aoy year and it w1ll not s1
gmficantly Executive Orders 12866 and 13563
or uniquely affect small governments.
Executive Orders 12866 and 13563
Therefore, no actions were deemed
direct agencies lo assess costs and
neccssa.ry under tht~ provisions of the
benefits of available regulatory

31533

alternatives and, ifregulation is
necessary, to select regulatory
approaches that maximize net benefits
(includjng potential economic,
environmenta l, public health and safety
effects, distributed impacts, and equity).
The executive orders stress the
importance of quantifying botb costs
and benefits, of reducing costs, of
harmonjzing rules, and of promoting
flexibility. This proposed rule has been
designated a '·significant regu~atory
action," although not economically
significant. under section 3(f)
Executive Order 12866. Accordmgly,
the proposed rule has been reviewed by
the Office of Management and Budget
(0MB).

o'.

1::,xecuUve Order 12988
The Department of State has i:cviewed
the proposed amendment in light ?f
sections 3(a} and 3(b)(Z) ofExecullve
Order 12988 to eliminate ambiguity,
minimize litigation, establish clear legal
standards, and reduce burden.
Executive Order 13175

The Department of Stale has
determined that this rulemaking will
not have tribal impUcations, will not
impose substantial direct compliance
costs on Indian tribal governments, and
will not preempt tribal law.
Accordingly, Exec:utivc Order 13175
docs not apply to this rulemaking.

Paperwork Reduction Act
This rule does not impose any new
reporting or record.keeping requirements
subject to the Paperwork Reduction Act,
44 U.S.C. Chapter 35; however, the
Department of State seeks public
comment on any unforeseen potential
for increased burden.
List of Subjects
22 CFR 120and 125

Arms and munitions. Classified
information, Exports.

22 CFR 123
Arms and munitions, Exports,
Reporting and rccordkoepin g
requirements .
2 2 CFR Part 1.27

Arms and munitions. Exports, Crime,
Law, Penalties, Sei1:ures and forfeitures.
Accordingly, for thP. reasons set forth
above. title 22, chapter L subchapter M.
parts 120, 123, 125. and 127 arc
proposed to be amended as follows:
PART 120-PURPOSE AND

DEFINITIONS
• 1. The authority citation for part 120
continues to read as follows:

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 66 of 70
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Federal Register/ Vol. 80 1 No. 106 / Wednesday, June 3, 2015 / Ptoposed Rules

Authority: Secs. 2. 38, and 71. Pub. L. 90629, 90 Stat. 744 (2Z U.S.C. 2752, 2778.
2797}; 22 U.S.C. 27914; 22 U.S.C. 2!\Sla; Pub.
L. 105-261 , 1 ic:! Stat.. 192-0; Pub. L. 111-266:
Section 1261, Pt1b. L. 112-239; .t:::.O. 13637.
78 FR 16129.
• 2. Section 120.6 is amended by

designating the clltl'rent text as
paragraph (a), revlising the first sentence
ofnowly designat,~d paragraph (a). and
adding paragraph (b) to read as follows:
§ 120.6

Defense article.

(a) Defense article means any item,

software, or technical data designated i.11
§ 121.1 of this subchapter. * * *
(bl The following are nol defense
articles and thus 111ot subject to the

ITAR:

(1) [Reserved]
(2} (Reserved]
(3) Information ,md software that:
(i) Are in the public domain, as

described in §120.11;
(ii) Arise during, or result from,
fundamental research, as described in
§ 120.46;
(Ui) Concern general scientific,
mathematical, or engineering principles
commonly taughl .in schools, and
released by instruction in a calalog
course or associate:d teaching laboratory
of an academic institution; or
(iv) Appea; in patents or open
(published) patent applications
available from or at any patent office,
unless covered by an invention secrecy
order.
Note lo paragraph {b): lnfotmalioo that is
not wilhin the scopo of the defiilil ion of
technical data (see§ 120.10) and nol directly
related to a defense article. or olhorwise
described on the lJSML. is not subject to the
!TAR.

• 3. Section 120.9 is revised to read as
follows:
§ 120.9

Defense service.
(a) Defense service means:
(1) The furnishimg of assistance

(including training) to a foreign person

(see§ 120.16), whether in the United

States or abroad. in the production,
assembly, testing, intermediate- or
depot-level mainte:nance (see§ 120.38).
modification , demilitarizat ion,
destruction, or processing of a defense
article (see§ 120.6). by a U.S. person or
foreign person in the United States, who
has knowledge ofll.S.-origin technical
data directly related to t,he defense
article that is the subfect of tho
assistance, prior to performing the
service;
Note 1 to paragraplil (a)(l): "Knowledge of

U.S.-origin technical data" for purposes of

paragraph (a)(l) can b e established based on
all the facts and circumstances. However, a
person is deemed to h.ave " knowledge of

U.S.·origin technical data '' djrectly related to
a defense article if the person participated in
the ,leveloprnent of a defense article
desctibeclin the same USML paragraph or
accessed (physically or eleclJ'onicaUy)
technical data directlyrolated to the defense
article that is the subject of the assistance,
prior to performillg the service.

Note 2 to paragraph (a)(1): U.S. persons
abroad who only receive U.S,-origin
technical data as a result of their activities on
behali of a foreign person are not included
within paragraph (a)(l).

nation by a U.S. person who has been
drafted into sucb forces; or
(5) The furnishing of assistance
(including training) to the government
of a country listed in§ 126.1 of this
subchapter in the development,
production, operation, installation.
maintenance, repair, overhaul or
refurbishing of a defense article or a part
component, accessory or attachments
specially designed for a defense article.
Note to paragraph (a): The following arc

examples of activities that are nol defense
services:
1. The furni.~hing of assistance (including
traio io.g} in orgaoizational· Jevel (basic· level)
maintenance (see § 120.38} of a defense
articl e;
2. Performance of .~erviccs by a U.S. person
in the employment of a foreign person,
except as provided in this paragraph:
3. Servicing of an item subject to the EAR
(see§ 120.42) that has been integrated or
(2) The furnishing of assistance
install eel into a defe nse article, or the
(including training) to a foreign person
serviC:il'\g of an item subject to tho EAR into
(see§ 120.16), whether in the United
which a defense article has been installed or
States or abroad, in Lhe development of integrated, without the use oftech11ical data ,
a defense article, or the integi:ation of a
except as described in paragr.iph (al(5) of this
section:
defense article with any other item
4. Th e installation of any item into a
regardless of whether that item is
defense article, or the inst allation of a
Sllbject lo the ITAR or technical data is
defense article into any item;
used;
5. Providing law enforcement, physical
Note to paragraph (a}(2J: ''Integration"
security, or personal protective services
means any euginr.ering analysis (see
(including trainiog and advice} to or for a
§ 125.4(c)(S) of this subchapter) needed to
foreign person (if such services necessitate
unite a defense article and one or more items. the export of a defense article a license or
Integration includes lhe introduction of
other approval is required for the export of
software to enable operation of a defense
the defense article, an d such services that
article, and the determit1ati o11 during the
entail the employment or training in the
design process o( where an item will be
employment of a defense ar1icle are
installed (e.g.. integration of a civil engine
addressee! i.n paragraph (a)(3) of this section);
into a destroyer that requires changes or
6, Tha furnishing of a~sistance by a foreign
modifications to lhe destroyer in order for the persou not in the United States:
civil engine to operate properly; not plug and
7. The furnishing of medical, logistical
play}. In tegration is distinct from
(other than maintenance). translatfon,
"installation." Installation means the ac1 of
financial. legal. scheduling, or administrative
putting an item in its predetermined plat:e
services:
w ithout th.e use of technical data or any
8, The furnishing of assistance by a foreign
modifications 10 the defense article involved, government to a foreign person in the United
other than to accommodate the fit of the item States. pursuant to III) arrangement with the
with the defonse article (e.g .. installing a
Department of Defense: and
dashboard radio into a military vehicle where
9. Tho instruction tn general scienti fie,
no rnodlficalions (other than to accommodate mathematkaJ, or enginecring,pri ucip le
.s
the fit of L Hem) are made to the vehicle,
ho
commonly taught in schools, colleges, and
and there is no use of technical data. ). The
universities.
" fit" of an item is defined by its ability to
(b) [Reserved)
physically interface or connect with o.r
• 4 . Section 120.10 is revised to read as
become an integral part of another item. (see
follows;
§ 120.,uJ.
Note 3 to pa_ragraph (aJ(t): Foreign person
employees in the lTnited States providing
defense services as part of Directorate of
Dcfen.~o Trade Conlrols--authorized
employment need not be listed on the U.S.
employer's technical assistru1ce agreement or
receive separate authorization to purform
defense services on behalf of their authorized
l/.S. employer.

(3) The furnishing of assistance
§120.10 Technical data.
(including training) to a foreign person
(a) Technical data means, except as
(see §120.16), regardless ofwbethcr
set forth in paragraph (b) of this section:
lechn.ical data is used, whether in the
(1) Lnformation required for the
United States o r abroad, in lhe
development (see§ 120.47) (including
employment of a defense article, other
desigJl. modification, and integration
than basic operation of a defense article design), production (see§ 120.48)
authorized by the U.S. government for
{including manufacture, assembly, and
export to the same recjpient;
integration), operation, installation.
l4} Participating in or directing
maintenance, repair, overhaul. or
combat operations for a foreign person
refurbishing of a defense article.
(see§ 120.16), excepl as a member of the Technical dala may be in any tangible
regular military forces of a foreign
or intangible form. such as written or

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 67 of 70
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oral communications, blueprints,
drawings, photogr:a.phs, plans, diagrams,
models, formulae, tables, engineering

designs and spedficallons, computeraided design files, manuals or
documentation, el,ectronic media or
information gleamid through visual
inspection;
Note to paragraph (a)(l}: The modification
of an existing item c reates a new item and
technical data for lhe modification is
technical data for Urn development of the
new item.

(2) Information onumerated on the
USML (i.e., not coi::itrolled pUI'suant to a
catch-aU USML piuagraph};
(3) Classified information for the
development, production, operation,
installation, maint,enance, repair,
overhaul. or refurbishing of a defense
article or a 600 ser:ies item subject to the

EAR;
(.;i) Information covered by an

invention secrecy order; or
(5) Information, .such as decryption
keys, network acce,ss codes, or
pas.swords, that would allow access to
other tcc:hnical data in clear text or
software (see§ 127 .1fb)(4) of this
suhchapter).
(b) Technical data does not include:
(1) Non-propriot:ary genera] system
descriptions;
(2) Information on basic function or
p-lll'pose of an item; or
(3) Telemetry data as defined in note
3 to USML Category XV(f) (see § 121.1
of this subchapter).
• 5. Section 120.11 is revised to read as
follows:

(5) Submission of a written
composition, manuscript or
presentation to domestic or foreign coauthors, editors, or reviowers of
journali;, magazines, newspapers or
trade publications, or to organizers of
open conferences or other open
gatherings, with the intention that the
compositions, manuscripts, or
publications will be made publicly
available if accepted for publication or
presentation.
(b) TedinicaJ data or software,
whether or not developed with
government funding, is nol in the public
domain if it has been made available to
the public without authorizati.ox1 from:
(1) The Directorate of Defense Trade
Controls;
(2) The Dopartment of Defense's
Office of Security Review;
{3) The relevant U,S. government
contracting entity with authority to
allow the technical data or software to
be made available to, the public; or
(4) Another U.S. government official
with authority to allow lhe technical
data or software to be made available to
the public.

31535

agency or subdivision of a foreign
government, such as a diJ?lomatic
mission, in the United States;
(5) P11rforming a defense service on
behalf of. or for the benefit of, a foreign
pers011, whether in the l)nited States
or abroad;
(9) Releasing or otherwise transferring
information, such as decryption keys,
network access r.odes, passwords, or
software, or providing physical access,
lhat would allow access to other
technical data in clear text or software
to a foreign person regardless of whether
such data has beeu or will be
transJerred; or
(7) Mak.ing technical data available
via a publicly available network (e.g.,
the Internet).
(b) Any release in the United States of
technicaJ data or software to a foreign
person is a deemed export to all
countri'es in which the foreign person
has h.eld citizenship or hulds permanent
residency.
·
• 7. Section 120.19 is r-evised to read as
follows;
§120.19

Reexport.

{a) Except as set forth in § 120.52,
Note 1 to §120.11: Section 127.1(a)(6) of
reexrort means:
this subchapter prohibits, without written
(1 An actual shipment or
authorization from the Directorate of Defense transmission of a defense article from
Trade Controls. U.S. and foreign perso11s
one foreign country to another foreign
frum exporting, reexporting, rctransfering, or
country, including the sending or taking
otherwise makin.g available to the public
of a defense article to or from such
technical data or software if such persou has
knowledge that the technical data or software countries in any manner;
was made publicly availal,le without ao
(2) Releasing or othenvise transferring
authorization described in paragraph (b) of
technical data or software.to a foreign
this section.
person of a country other than the
foreign country wh.ere the release or
Note 2 to §120.11: An export, reexport, o,:
§120.11 Publicdonnain.
transfer takes place (a "deemed
retransfer of technical data or software tliat
reexport");
(a) Except as set forth in paragraph (b) was made publicly available by another
(3} Traosfex:ring by a peJ"son outside of
of this section, unclassified information person without authorization is not a
the United States ofregistration. control,
and software are in the public domain,
violation of this subcbapter, except as
or ownership of any aircraft, vessel. o:r
described in §127,l(a)l6) of this snbchapte.r.
and are thus not technical data or
satellite SQbject to the ITAR to a foreign
software subject to the ITAR, when they • &. Section 120.17 is revised to read as
person outside the United States; or
have been made available to the public
follows:
(4) Releasing or otJierwise transferring
without restrictions upon their further
outside of the United States
§120.17 Export.
dissemination such as through any of
information, snch as decryption keys,
the following;
(a) Except as set forth in§ 120.52,
network access codes, password, or
(1) Subscriptions: available without
§ 126.16, or§ 126.17 of this subchapter,
software, or p1'oviding physical access,
restriction to any individual who
eJrport means:
that would allow access to other
desires to obtain or purcha.~e the
(1) An actual shipment or
tech_oical data in clear text or software.
published information;
tJ:ansmission ou.t of the United States,
to a foreign per~on regardless of whether
(2) Librm·ies or ollher pubHc
including the sending or taking of a
such data ha.s been or will be
collections that are open and available
defense article outside of the United
transferred.
to the public, and from which the public States in any manner;
(b) [Reserved)
can obtain tangible or intangible
(2) Releasing or otherwise transferrino
0
documents:
technical data or software (source code
§120.41 {Amendecl]
(3) Unlimited dis;tributiou at a
or object code) to a foreign person in the • 8. Section 120.41 is amended by
conference, meetin:g, selll.inar, trade
United States (a "deemed exporl");
reserving Note 1 to paragraph (b)(3) and
show, or exhibitioIJt, generally accessible
(3) Transferring by a person. in the
Note 2 to paragraph (b)(3).
blic;
to the interested pu1
United States of registration, control, or • 9. Section 120.46 is added to read as
(4) Public dissemination (i.e.,
ownership of any aircraft, vessel, or
follows:

unlimited distribution) in any form (e,g,, satellite subject to the ITAR to a foreign

not necessarily in published form).
including posting on the Internet on
sites available to the public.; or

person;
(4) Releasing or otherwise transferring
a defense article to an embassy or to any

§ 120.46

Required.

(a) As applied to technical data, lhc
term required refers to only that portion

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 68 of 70
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Federal Register/Vo l. 80, No. 106/ Wednesday, June 3, 2015/Proposed Rules

of technical data that is peculiarly
responsible for aclhieving or exceeding
tho controlled performance levels,
charocteri.stics, or functions. Such
required technical data may be shared
by different produ els.

5. lt was or is being developed for use in
or with general purpose commodities or
software (i.e. , with no knowledge that it
would be for use in <>r with n parti1..1Jlar
commodity).
(b) [Reserved!

for a bomber and thu.s controlled under
USMl. Category VIU(i).

§ 120.48 Production.

maintain such technical data as restricted or
proprietary, the technical data becomes
subjocl to the IT AR.

(b) Prepublicatio n review. Technical
data that arises during, or results from,
fundamental research is intended to be
• 10. Section 120.47 is added to read as
Note 1 to paragraph (a): The references to
published to the extent that the
follows:
''charactedstic s" and fu.nctions'' a1'll not
researchers are free to publish the
limited to entries on the USML that use
technical data contained in the research
§ 120.47 Development.
specific technical -parameters to describe the
without any restriction or delay,
Development is related to all stages
scope of what is con trolled. The
including U.S. government-i mposed
prior to serial production, such as:
"characteristic s" W1d "functions" of an item
listed are, absent a s1oecific: regulatory
design, design research, design analyses, access and disseminatio n controls or
definition, a standard d ictionary's definition
design concepts, assembly an d testing of research sponsor proprietary
information review.
of tlrn i tem. For oxample, USML Category
prototypes, pilot production schemes,
V!Il(a)(l) controls aircraft that a.re "bombers.'' design data,
Note 1 to paragraph (b): Although
process of transforming
No performance levE•I is identified in the
lechoical data arising during or resulting
design data into a product,
entry, but the characteristic of the oorcraft
from fundamental research is not considered
that is controlled is that it is a bombor. Thus. configuration design, integration design, "intended to be published" ifresearcbers
and layouts. Development includes
any technical data, r,agardless of significance,
accept restrictions
modification of the design of an ex.isling technical data will on its publiGation, suc}:i
peculiar to making an aircraft a bomber as
nonetheless qualify as
item.
opposud lo. for example, an aircraft
tccho.lcal data arising during or resulting
• 11. Section 120.48 is added to read as
controlled under ECCN 9A610.a or ECCN
from fundamental research once all such
9A991.a, would be tnchnical data required
follows:
restrictions have expired or have boon

Note 2 to p aragraph (a): The ITAR and the

EAR often divide within each set of
regulations or betwe,~o each set of
regulations:
t . Controls on parts, components,
accessories, attachmtmts, anti software; and
2 . Controls on the ,md items, systmns,
equipment, or other items into which those
parts, components, a,eccssories, attachments.
and software are to be installed or
incorporated.
With the exceptioc, of technical data
specifically enumerated on the USML. the
jurisdictional status of unclassified toclmical
data is the same as the jurisdictional status
of the defon.se artit:le or item subject to the
EAR to which it is directly related. Thus, if
technology is clirecUy rf'lated to the
production ofan ECC:N 9A610.x aircraft
component that is to be integrated or
installed in a USML Category VIll(a) aircraft,
the techncilogy is coo b:olled untlar EGCN
9£610, not USML Cet·egory Vlll(i).

Note 3 to paragraph (a): Technical data is
·' peculiarly responsible for achieving or
cxceHding the control.led performance levels,
charnctcrislfcs , or fon1
ctions" if it is used in
or for use in the development (including
design, modification, and integration design).
production (including manufacture,
assembly, a.n d integr~1tiun), operation.
instal lation, rnaintenauce, repair, overhaul,
or refurbishing nf a tlefense artic:lc unless:
1. The Department of State has determined
otherwise in a com.mc>dity jurisdiction
determination;
z. [Reserved):
3. Il ls identical to Lnformation used in or
with a commodity or software that:
i. ls or was in production (i.e., not in
development); and
ii. Is not a defense article;
4. II was or-is being doveloped with
knowledge Lhat it is for or would be for- use
in or with both dcfenlle a:rticles and
commoclities not on the U.S. Munitions List:
or

Prodaction means all production
stages, such as product engineering,
manufacture, integration, assembly
(mounting), inspection, testing, and
quality assu rance , This includes "serial
production" where commodities have
passed production readiness testing
(i.e., an approved, standardized design
ready for large scale production) and
have been or are being produ ced on an
assembly line for multiple commodities
using the approved, standardized
design.
• 12. Section 120.49 is added to read as
follows:
§ 120.49 Technical data that arises during,
or results from, fundamental research .

(a) Technical Data arising during, or
resulting from. fundamental reseal'ch.
Unclassified information that arises
during, or results from , fundamental
research and is intended to be published
is not technical data whoo the research
is:
(1) Conducted in the United States at
an accredited institu tion of higher
learning located; or
(2) Funded, in whole or in part, by the
U.S. government.
Note 1 lo paragraph (a): The i.npu ls ustid
lo cond uct fundamen tal resea.l'ch. such as
information. equipment, or softwarn. are oat
·'technical data that arises during or results
from fumfomenlal research'' except to thl'!
extent that snch inputs are t.ecbnical data lhat
n.rose during or resulted from earlier
fundamental rosearr.h,
Note 2 to paragraph (a): There are
instances in the conduct of research, whctl1er
fundamen tal , basic, or applied, where a
researcher, iustitutim1, or company rnay
decide to restrict or protect the release or
publication of technical data contained in
research results. One~ a decision is made to

removed.

Note 2 to p ar<tgrapb (b): ResP.arcb that is
voluntarily subjected to U.S. government
prepublir.alion review is considered intended
to be published for all releases coMistenl
with auy resulting co11 trols.
Note 3 to paragraph (b): Technical data
resuhjng from U.S. government funded
research which is subject to government·
imposed access and dissemination or other
specific national security controls qualifies as
technical data resulting from fundamental
research. provided that all governmentimposed national security controls have been
satisfied.
{c) Fundamental research definition.
Fundamental research means basic or
applied research in science and
engineering, the results of which
ordinarily are published and shared
broadly within the scientific
comm,mity. This is dis tinguished from
proprietary rescarr.h and from industrial
development . design, production, and
product utilization, the results of which
ordinarily are restricted for proprietary
or national security reasons.
(1) Basic research means experimental
or theoretical work undertaken
principally to acquire new knowledge of
the fundamental principles of
phenomena or observable facts, not
primarily directed towards a specific
practical aim or objective.
(2) Applied research means tho effort
that:
(i) Normally follows basic research.
but may not be severable from the
related basic research;
(ii) Attempts to determine and exploit
the potential of scientific discoveries or
improvemen ts in lechnology, materials,
processes. methods, devices, or
techniques; and
(iij) Attempts to advance the state of
the art.

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 69 of 70
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a 13. Section 120.50 is added to read as

protection of data between an originator
and an intended recipient, including
between an individual and himself or

follows:

§ 120.50

Release.

la) Ex<.:ept as set forth in § 120.52 ,
technical data and software are released
through:
(1) Visual or other inspection by
foreign persons of a defense article !hat
reveals technical data or software to a
foreign person; or
(2) Oral or writton exchanges with
foreign persons of technical data in the
United Slates or abroad .
(bl [Reserved]
11 14. Section 120.!11 is added lo read as
follows:
§ 120.51

Retransfe1r.

Except as sel forth in§ 120.52 of this
subchapter, a retra-nsfe-r is a change in
end use or end user of a defense article
within the same foreign country.
• 15. Section 120.s2 is added to read as
follows:
§ 120.52 Activities 'that are not exports,
reexports, or retram;fers.

(a) The following activities are not
exports, reexpmts, or retransfcrs:
(1) Launching a :spacecraft, launch
vehicle, payload, or other item into
space:
(2) While in the United States,
releasing technical data or software to a
U.S. person;
(3) Shipping, moving, or transferring
defense articles bet.ween or among the
United Slates, the District of Columbia,
the Commonwea lth of Puerto Rico, the
Commonwea lth of the Northern Mariana
Islands or any territory, dependency, or
possession of the t Jnited States as listed
in Schedule C, Classification Codes and
Descriptions for U.S. Export Statistics,
issucdby the Buroau of the Census; and
(4) Sending, takiing, or storing
technical data or software that is:
(i) Unclassified;
(ii) Secured usin;g end-to-end
encryption;
(iii) SecuTed using cryptographi c
modules (h ardwaro or software)
compliant with the Federal Information
Processing Standards Publication 140-2
(FIPS 140-2) or ils successors,
supplemente d by s,oftware
implementati on. cryptographi c key
management and other procedures aod
controls that are in accordance with
guidance p.rovirled J..n current U.S.
National Institute for Standards and
Technology publications; and
(iv) Not stored in a country proscribed
in § 126. l of this su.bchapter or the
Russian Federalion.
(b) For purposes of this section. endto-end encryption means the provision
of uninterrupte d cryptographi c

herself. Il involves encrypting data by

the originating party and keeping that
data encrypted except by the intended
recipient, where the means to ac<.:ess the
data LO unencrypted form is not given to
any third party, induding to any
fnternet service provider, application
service provider or cloud service
provider.
(c) The ubility to access technical data
or soft.ware in encrypted form that
satisfies the criteria set forth in
paragraph (a)(4) of this section does not
constitute the release or export of such
technical data or software.
Note to §120.52: See§ 127. t of. this
subchapter for probibitious on the release or
transfer of technical data or software, in anv
form, to any person with knowledge that a violation will occur.

PART 123-LICENS ES FOR THE
EXPORT AND TEMPORARY IMPORT
OF DEFENSE ARTICLES
• 16. The authority citation for part 123

continues to read as follows:
Authority: Secs. 2, 38, and 71., !:JO, 90 Stat.
744 (22
2752. 2778, 2797): 22
2753; 22 U.S.C. 2651a; 22 lJ.S.C. 2776; Pub.
L.1.05- 261 , 112 Stat. 1920: Soc. 1205(a), Pub.
L. 107- 228: Section 1261, Pu b. L. 112-239:
E.O. 13637, 78 FR 16129.

31537

(e) Unless limited by a condition set
out in an agreement. the export,
reexport, rotransfcr, or temporary import
autborfaed by a l'icense is for the ilem(s),
end-use(s), and parties described in the
agreement, license, aod any letters of
explanation. DDTC approves agreements
and grants licenses in reliance on
representatio ns the applicant made in or
submitted in connection with the
agreement, letters of explanation. and
other documents submitted.
PART 125-LICENS ES FOR THE
EXPORT OF TECHNICAL DATA ANO
CLASSIFIED DEFENSE ARTICLES
• 20. The authority citation for part 125
continues to read as follows:
Authority! Secs. 2 aod 38, 90. 90 Stal. 744
(22 U.S.C. 2752. 2778): 22 U.S.C. 2651a; E.O.
13637, 78 FR 16129.

• 21. Section 125.4 is amended by

revising paragraph (b)(9) to read as
follows:
§ 125.4 Exemptions of general
applicability.

..

*

*

•

(b) * .. ~
(9) Technical data, including

classified information, regardJcss of
media or format, exported by or to a
U.S. person or a foreign person
employee of a U.S. person, u·avelling or
on temporary assignment abroad subject
to the following restrictions:
• 17. Section 123.28 is added to read as
(i) Foreign persons may only export or
follows:
receive suc-.h technical data as they arc
§ 123.28 Scope of a license.
authori?.ed to rncoi ve through a separate
Unless limited by a condition set out
license or other approval.
in a license, tho export, reexport,
(ii) The technical data exported under
retransfer, or temporary import
this authorization is to he possessed or
authorized by a license is for the item(s), used solely by a U.S. person or
end-use(s), and parties described in the
authorized foreign person and sufficient
license application and any letters of
security precautions must be taken lo
explanation. DDTC grants licenses in
prevent the unauthorized release of the
reliance on representatio ns the
technology. Such security precautions
applicant made in or submitted in
include encryption of the technical data.
connection with the license. application, the use of secure network connections.
letters of explanation, and other
such as virtual private networks. the use
documents submitted.
of passwords or other access restrictions
on the electronic device or media on
PART 124-AGREE MENTS, OFFwhich the technical data is stored, and
SHORE PROCUREMENT, AND OTHER
the use of firewalls and other network
DEFENSE SERVICES
security measures lo prevent
unauthorized access.
• 18. The authority citation for part 124
(iii) The U.S. person is an employee
continues to read as follows:
of the U.S. government or is directly
Authority: Secs. 2, 38, and 71, 90, 90 Stat.
employed by a U.S. person and not by
744 [22 u.s.c. 275 2, 27711. 2797 ); 22 u.s,c.
a foreign subsidiary.
2651a; 22 U.S.C. 2776; Section 1514_, Pul,. L.
(iv) Technical data authorized under
105-261; Pub. L. 111-266; Section 1261, Pub.
this exception may not be used for
L. 112-239; 1::.0. 13637, 78 FR 16129.
foreign production purposes or for
• 19. Section 124.1 is amended by
defense services unless autl1orizcd
adding paragraph (e) to read as follows:

u.s.c.

u.s.c.

§ 124.1 Manufacturing license agreements
and technical assistance agreements.

*

*

..

through a license or other approval.

(v) The U.S. employer of foreign
persons must document the use of this
exemption by fornign person employees,

Case 1:15-cv-00372-RP Document 32-1 Filed 06/10/15 Page 70 of 70
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Federal Register/Vol. 80, No. 106/Wednesday, June 3, 2015/Proposed Rules

including the-reason that the technical
data is needed by the foreign person for
their temporary business activities
aLroad on behalf of the U.S. person.
(vi) Classified information is sent or
taken outside the United States in
accordance with the requirements of the
Department of Defense National
Industrial Security Program Operating
Manual (unless such req1.1i.rements are
in direct conflict with guidance
provided by the Directorate of Defense
Trade Controls, in which case such
g1.1idance must be followed) .

DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT

instnictions provided on that site to
submit comments electronically.
Submission af Hard Copy Comments.
24 CFR Parts 91 and 576
Comments may be submitted by mail or
[Docket No. FR-6474--N-02]
band delivery. To ensure Lhat the
information is fully considered by all of
RIN 2506-AC29
the reviewers, each commenter
Emergency Solutions Grants (ESG)
submitting bard copy comments, by
Program, Solicitation of Comment on
mail or band delivery, should submit
Specific Issues
comments or requests to the address
above, addressed to the attention of the
AGENCY: Office of the Assistant
Rcgulatious Division. Due to security
Secretary for Community Planning and
measures at all feder-al agencies,
Development, HUD.
submission of comments or requests by
ACTION: Regulatory review: request for
mail often result in delayed deli very. To
*
*
"
comments.
ensure timely receipt of comments,
PART 127- VIOLAmONS AND
SUMMARY: On December 5, 2011, .HUD
HUD recommends that any comments
PENALTIES
published an inLerim rule entitled
submitted by mail be submitted at least
"Homeless Emergency Assistance and
2 weeks in advance of lbe public
• 22. The authority citation for part 127
Rapid Transition to Housing: Emergency comment deadline. All hard copy
continues Lo read as follows:
Solutions Grants Program and
comments received by mail or hand
Consolidated Plan Conforming
Autholity: Sections 2, 38, aud 42. 90, 90
delivery are a part of the public record
Amendments" (interim rule). The
Stat. 74 4 (22 U.S.C. 2'. 752, 2778, 2791); 22
and will be posted to http;//
U.S.C. 401; 22 U.S.C. 2651a; 22 U .S.C. 277.9a; comment period for the interim rule
www.reguJations.gov without change.
ended on February 3, 2012. Because
2 2 U.S .C, 2780; E.O. 13637, 78 FR 16129,
Note : To receive constderation as public
recipients and subrecipients have now
• 23 . Section 127.J is amended by
comments, comments m~st be submitted
had more experience implementing the
throngh one of the two methods specified
adding paragraphs (a)(6) and (b)(4) to
interim rule, HUD recognizes that they
above. Again. all submissions must refet to
read as follows:
may have additional input and
the docket number and title of the rule.
comments for HUD to consider in its
§ 127.1 Violations.
development of the ESG final rule (final
No Facsimile Comments. Facsimile
(a),. * .,
ruJe). Therefore, this docltment takes
(fax) comments are not acceptable.
comments for 60 days to allow
(6) To export, re1~xport, retransfor, or
Public lJJspection of Comments. All
additional time for public input, and for
otherwise make available to the public
comments submitted to ID.JD regarding
HUD to sollcit specific comment on
technical data or software if such person certain issues.
this notice will be available, without
has knowledge that the technical data or
c:harge, for public inspection and
OATES: Comment due dale: August S;
soft.ware was made: publicly available
copying between 8 a.m. and 5 p.m.
2015.
without an authorization described in
o
weekdays at tbe above address. Due L
ADDRESSES: Interested persons are
§ 120.1 l(b) of this 1subchapter.
invited to submit comments responsive security measures at the HUD
(b) * * *
Headquarters building, an advance
to this request for-information lo the
appointment to review the documents
(4) To rolease or otherwise transfer
Reguiatjons Division, Office of General
must be scheduled by calling the
information, such as decryption keys.
Coun sel, Department of Housing and
network access codes, or passwords,
Urban Development, 451 7th Street SW., Regulation Division at 202-708-3055
(this is not a toll-free number). Copies
Room 10276, Washington, DC 20410that would allow access to other
7000. Communications must refer to the of aJl comments submitted will also be
leciUlical data in cl.ear text or to
available for inspection and
above docket number and title and
software that will result, directly or
should contain the information
downloading at http.-!!
indirectly, in an unauthorized export,
specified in the "Request for
www.regulations.gov.
reexport, or retrans:fer of the technical
CommenLs" of this notice.
data fn clear text 01: software. Violation
FOR FURTHER INFORMATION CO NTACT:
Electtonic Submission of Comments.
of this provision will constitute a
Norm Sucbar, Director, Office of Special
Interested persons may submit
violation to the same extent as a
Needs Assistance Programs, Office of
comments electronically thro\1gh the
violation in connection with the export
Community Planning and Development,
Federal eRulemaking Portal at http://
of the controlled technical data or
www.regulations.gov. H UD strongly
Department of Housing and Urban
software.
encourages commenters to submit
Development, 451 7th Street SW., Room
*
*
comments electronically, Eh!ctronic
7262, Washington, DC 20410-7000,
submission of comments allows the
telephone number (202) 708,-4300 (this
Date<l: Ma.y 20. ;w1 5.
commenter maximum time to prepani
is not a toll-free number). Persons with
Rose E. Gottemoeller.,
and submit a comment, ensures timelv
hearin,g or speech impairments may
Undet Seuetary, Arms Cont.rol and
receipt by HUD, and enables HUD to access this number through TTY by
International Security, Department of State.
make them immediately available to the calling the toll-free Federal Relay
[FR Doc, 2015-12844.Fil.ed 6-Z-15 ; 8:4;, arol
public. Comments submitted
Service at 800-877- 8339.
BILl.ll'IG CODE 471~2?-P

..

electronically through tho http://

www.regulations.gov Web site can be
viewed bv interested members of the
public. Commenters should follow

SUPPLEMENTARY INFORMATION:

Exhibit 5

Case 1:15-cv-00372-RP Document 8-1 Filed 05/11/15 Page 15 of 92

United States Department of State
Bureau of Political-Militmy Affairs
Office of Defense Trade Controls Compliance
Washington, D.C. 20522-0ll2

In reply refer to

MAY CIS 2013

Mr. Cody Wilson

Dear Mr. Wilson:
The Department of State, Bureau of Political Military Affairs, Office of Defense
Trade Controls Compliance, Enforcement Division (DTCC/END) is responsible for
compliance with and civil enforcement of the Arms Export Control Act (22 U.S.C.
2778) (AECA) and the AECA's implementing regulations, the International Traffic in
Arms Regulations (22 C.F.R. Parts 120-130) (ITAR). The AECA and the ITAR impose
certain requirements and restrictions on the transfer of, and access to, controlled defense
articles and related technical data designated by the United States Munitions List
(USML) (22 C.F.R. Part 121).
DTCC/END is conducting a review of technical data made publicly available by
Defense Distributed through its 3D printing website, DEFCAD.org, the majority of
which appear to be related to items in Category I of the USML Defense Distributed
may have released ITAR-controllcd technical data without the required prior
authorization from the Directorate of Defense Trade Controls (DDTC), a violation of
theiTAR.
Technical data regulated under the ITAR refers to information required for the
design, development, production, manufacture, assembly, operation, repair, testing,
maintenance or modification of defense articles, including information in the form of
blueprints, drawings, photographs, plans, instructions or documentation. For a complete
definition of technical data, see § 120.10 of the ITAR. Pursuant to § 127.1 of the IT AR,

App. 13

Case 1:15-cv-00372-RP Document 8-1 Filed 05/11/15 Page 16 of 92

-2-

it is unlawful to export any defense article or technical data for which a license or
written approval is required without first obtaining the required authorization from the
DDTC. Please note that disclosing (including oral or visual disclosure) or transferring
technical data to a foreign person, whether in the United States or abroad, is considered
an export under§ 120.17 of the ITAR.
The Department believes Defense Distributed may not have established the
proper jurisdiction of the subject technical data. To resolve this matter officially, we
request that Defense Distributed submit Commodity Jurisdiction (CJ) determination
requests for the following selection of data files available on DEFCAD.org, and any
other technical data for which Defense Distributed is unable to determine proper
jurisdiction:
l. Defense Distributed Liberator pistol
2. .22 electric
3. 125mm BK-14M high-explosive anti-tank warhead
4. 5.56/.223 muzzle brake
5. Springfield XD-40 tactical slide assembly
6. Sound Moderator- slip on
7. "The Dirty Diane" 1/2-28 to 3/4-16 STP S3600 oil filter silencer adapter
8. 12 gauge to .22 CB sub-caliber insert
9. Voltlock electronic black powder system
10. VZ-58 front sight.
DTCC!END requests that Defense Distributed submit its CJ requests within three
weeks of receipt of this letter and notify this office of the final CJ determinations. All
CJ requests must be submitted electronically through an online application using the
DS-4076 Commodity Jurisdiction Request Form. The form, guidance for submitting CJ
requests, and other relevant information such as a copy of the ITAR can be found on
DDTC's website at http:!/www.pmddtc.state.gov.
Until the Department provides Defense Distributed with final CJ determinations,
Defense Disttibuted should treat the above technical data as ITAR-controlled. This
means that all such data should be removed from public access immediately. Defense
Distributed should also review the remainder of the data made public on its website to

App. 14

Case 1:15-cv-00372-RP Document 8-1 Filed 05/11/15 Page 17 of 92

-3-

determine whether any additional data may be similarly controlled and proceed
according to ITAR requirements.

,.

Additionally, DTCC/END requests information about the procedures Defense
Distributed follows to determine the classification of its technical data, to include the
aforementioned technical data files. We ask that you provide your procedures for
determining proper jurisdiction of technical data within 30 days of the date of this letter
Ms. Bridget Van Buren, Compliance Specialist, Enforcement Division, at the address
below:
Office of Defense Trade Controls Compliance

We appreciate your full cooperation in this matter. Please note our reference
number in any future correspondence.
Sincerely,

.

Glenn E. Smith
Chief, Enforcement Division

App. 15

Exhibit 6

SETTLEMENT AGREEMENT
Defense Distributed ("DD"), Second Amendment Foundation, Inc. ("SAF"), and Conn
Williamson (collectively, "Plaintiffs,") and the United States Department of State ("State"), the
Secretary of State, the Directorate of Defense Trade Controls ("DDTC"), the Deputy Assistant
Secretary, Defense Trade Controls, and the Director, Office of Defense Trade Controls Policy
(collectively, "Defendants"), out of a mutual desire to resolve all of the claims in the case
captioned Defense Distributed, et al. v. Dep 't ofState, et al., Case No. 15-cv-372-RP (W.D.
Tex.) (the "Action") without the need for further litigation and without any admission ofliability,
hereby stipulate and agree as follows:
Plaintiffs and Defendants do hereby settle all claims, issues, complaints, or actions
described in.the case captioned, and any and all other claims, complaints, or issues that have
been or could have been asserted by Plaintiffs against Defendants in accordance with the
following terms and conditions:

1.

Consideration: In consideration of Plaintiffs' agreement to dismiss the claims in the

Action with prejudice as described in paragraph 2, below, Defendants agree to the following, in
accordance with the definitions set forth in paragraph 12, below:
(a)

Defendants' commitment to draft and to fully pursue, to the extent authorized by
law (including the Administrative Procedure Act), the publication in the Federal
Register of a notice of proposed rulemaking and final rule, revising USML
Category I to exclude the technical data that is the subject of the Action.

(b)

Defendants' announcement, while the above-referenced final rule is in
development, of a temporary modification, consistent with the International

Traffic in Arms Regulations (ITAR), 22 C.F.R. § 126.2, ofUSML Category I to
exclude the technical data that is the subject of the Action. The announcement
will appear on the DDTC website, www.pmddtc.state.gov, on or before July 27,
2018.
(c)

Defendants' issuance of a letter to Plaintiffs on or before July 27, 2018, signed by
the Deputy Assistant Secretary for Defense Trade Controls, advising that the
Published Files, Ghost Gmmer Files, and CAD Files are approved for public
release (i.e., unlimited distribution) in any form and are exempt from the export
licensing requirements of the ITAR because they satisfy the criteria of22 C.F.R. §
125.4(b)(13). For the purposes of 22 C.F.R. § 125.4(b)(13) the Depaiiment of
State is the cognizant U.S. Government department or agency, and the Directorate
of Defense Trade Controls has delegated authority to issue this approval.

(d)

Defendants' acknowledgment and agreement that the temporary modification of
USML Category I permits any United States person, to include DD ' s customers
and SAF' s members, to access, discuss, use, reproduce, or otherwise benefit from

the technical data that is the subject of the Action, and that the letter to Plaintiffs
permits any such person to access, discuss, use, reproduce or otherwise benefit
from the Published Files, Ghost Gmmer Files, and CAD Files.
(e)

Payment in the amount of $39,581.00. This figure is inclusive of any interest and
is the only payment that will be made to Plaintiffs or their counsel by Defendants
under this Settlement Agreement. Plaintiffs' counsel will provide Defendants'
2

counsel with all information necessary to effectuate this payment.
The items set forth in subparagraphs (a) through (e) above constitute all relief to be
provided in settlement of the Action, including all damages or other monetary relief,
equitable relief, declaratory relief, or relief of any form, including but not limited to,
attorneys' fees, costs, and/or reliefrecoverable pursuant to 2 U.S.C. § 1302, 2 U.S.C. §
1311, 2 U.S .C. § 1317, 22 U.S.C. § 6432b(g), 28 U.S.C. § 1920, Fed. R. Civ. P. 54(d),
and the Local Rules.

2.

Dismissal with Prejudice: At the time of the execution of this Settlement Agreement,
Plaintiffs agree to have their counsel execute and provide to Defendants' counsel an
original Stipulation for Dismissal with Prejudice pursuant to Fed. R. Civ. P.
41(a)(l)(A)(ii) and 41(a)(l)(B). Counsel for Defendants agree to execute the stipulation
and file it with the Court in the Action, no sooner than 5 business days after the
publication of the announcement described in Paragraph 1(b) of this Settlement
Agreement and issuance of the letter described in Paragraph 1(c) of this Settlement

Agreement. A copy of the Stipulation for Dismissal with Prejudice is attached hereto.

3.

Release: Plaintiffs, for themselves and their administrators, heirs, representatives,
successors, or assigns, hereby waive, release and forever discharge Defendants, and all of
their components, offices or establishments, and any officers, employees, agents, or
successors of any such components, offices or establishments, either in their official or
3

individual capacities, from any and all claims, demands and causes of action of every
kind, nature or description, whether currently known or unknown, which Plaintiffs may
have had, may now have, or may hereafter discover that were or could have been raised
in the Action.

4.

No Admission ofLiability: This Settlement Agreement is not and shall not be construed

as an admission by Defendants of the truth of any allegation or the validity of any claim
asse1ted in the Action, or of Defendants' liability therein. Nor is it a concession or an
admission of any fault or omission in any act or failure to act. Nor is it a concession or
admission as to whether the monetary or equitable relief, attorneys' fees, costs, and
expenses sought by Plaintiffs in the Action, are reasonable or appropriate. None of the
terms of the Settlement Agreement may be offered or received in evidence or in any way
referred to in any civil, criminal, or administrative action other than proceedings
permitted by law, if any, that may be necessary to consummate or enforce this Settlement
Agreement. The terms of this Settlemenl Agreemt:nl shall nol bt: t;Onslrued as an

admission by Defendants that the consideration to be given hereunder represents the
relief that could be recovered after trial. Defendants deny that they engaged in ultra vires
actions, deny that they violated the First Amendment, Second Amendment, or Fifth
Amendment of the United States Constitution, and maintain that all of the actions taken
by Defendants with respect to Plaintiffs comply fully with the law, including the United
States Constitution.

4

5.

Merger Clause: The terms of this Settlement Agreement constitute the entire agreement
of Plaintiffs and Defendants entered into in good faith, and no statement, remark,
agreement or understanding, oral or written, which is not contained therein, shall be
recognized or enforced. Plaintiffs acknowledge and agree that no promise or
representation not contained in this Settlement Agreement has been made to them and
they acknowledge and represent that this Settlement Agreement contains the entire
w1derstanding between Plaintiffs and Defendants and contains all terms and conditions
pertaining to the compromise and settlement of the disputes referenced herein. Nor does
the Parties' agreement to this Settlement Agreement reflect any agreed-upon purpose
other than the desire of the Parties to reach a full and final conclusion of the Action, and
to resolve the Action without the time and expense of further litigation.

· 6.

Amendments: This Settlement Agreement cannot be modified or amended except by an
instrument in writing, agreed to and signed by the Parties, nor shall any provision hereof
be waived other than by a written waiver, signed by the Parties.

7.

Binding Successors: This Settlement Agreement shall be binding upon and inure to the
benefit of Plaintiffs and Defendants, and their respective heirs, executors, successors,
assigns and personal representatives, including any persons, entities, departments or
agencies succeeding to the interests or obligations of the Parties.

5

8.

Consultation with Counsel: Plaintiffs acknowledges that they have discussed this
Settlement Agreement with their counsel, who has explained these documents to them
and that they understand all of the terms and conditions of this Settlement Agreement.
Plaintiffs further acknowledge that they have read this Settlement Agreement, understand
the contents thereof, and execute this Settlement Agreement of their own free act and
deed. The undersigned represent that they are fully authorized to enter into this
Settlement Agreement.

9.

Execution: This Settlement Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which together constitute one and
the same instrument, and photographic copies of such signed counterparts may be used in
lieu of the original.

10.

Jointly Drafted Agreement: This Settlement Agreement shall be consi<l.ere<l. a jointly

drafted agreement and shall not be construed against any party as the drafter.

11.

Tax and Other Consequences: Compliance with all applicable federal, state, and local tax
requirements shall be the sole responsibility of Plaintiffs and their counsel. Plaintiffs and
Defendants agree that nothing in this Settlement Agreement waives or modifies federal,
state, or local law pertaining to taxes, offsets, levies, and liens that may apply to this
6

Settlement Agreement or the settlement proceeds, and that Plaintiffs are executing this
Settlement Agreement without reliance on any representation by Defendants as to the
application of any such law.

12.

Definitions: As used in this Settlement Agreement, certain terms are defined as follows:
The phrase "Published Files" means the files described in paragraph 25 of
Plaintiffs' Second Amended Complaint.
The phrase "Ghost Gunner Files" means the files described in paragraph 36 of
Plaintiffs' Second Amended Complaint.
The phrase "CAD Files" means the files described in paragraph 40 of Plaintiffs'
Second Amended Complaint.
The phrase "Other Files" means the files described m paragraphs 44-45 of
Plaintiffs' Second Amended Complaint.
The phrase "Military Equipment' means (1) Drum and other magazmes for
firearms to .50 caliber (12.7 mm) inclusive with a capacity greater than 50 rounds,
regardless of jurisdiction of the firearm, and specially designed pa1is and
components therefor; (2) Parts and components specially designed for conversion
of a semi-automatic firearm to a fully aulomatic firearm; (3) Accessories or
attachments specially designed to automatically stabilize aim (other than gun
rests) or for automatic targeting, and specially designed parts and components
therefor.
· The phrase "technical data that is the subject of the Action" means: (1) the
Published Files; (2) the Ghost Gunner Files; (3) the CAD Files; and (4) the Other
Files insofar as those files regard items exclusively: (a) in Category I(a) of the
United States Munitions List (USML), as well as barrels and receivers covered by
Category I(g) of the USML that are components of such items; or (b) items.
7

j

\ .

covered by Category I(h) of the USML solely by reference to Category I(a),
excluding Military Equipm~nt.
Dated: ~ e

~o/, 2018
Dated:

.SLl'\L ~~' 2018

Matthew A. GolcBl~:::::=-"'--""
Snell & Wilmer LLP
One South Church Ave. Ste. 1500
Tucson, Arizona 85701
Counsel for Plaintiffs
r.'

Dated:

JV\\e, ~ 1

2018

Eric J. os
Stuart J. Robinson
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, D.C. 20001
Tel. [phone]

Counsel for Defendants

8

Exhibit 7

Exhibit 8

Engel Decries State Department Policy to Allow 3-D Gun Printing | House Committee on... Page 1 of 2

(/)

Engel Decries State Department Policy
to Allow 3-D Gun Printing
Jul 20, 2018 | Press Release
WASHINGTON—Rep. Eliot L. Engel, Ranking Member of the House Committee on Foreign Affairs, today
called on Secretary of State Mike Pompeo to immediately suspend a dangerous State Department policy which
would permit internet publication of software for 3-D gun printing.
“There are several disturbing aspects of the Department’s action. Foremost is the likelihood that weapons will
become available to anyone with a laptop and a 3-D printer. This defeats US laws which require background
checks on the sale of weaponry. The danger is magnified because 3-D printed firearms would be made of
plastic and, therefore, undetectable by most security systems. With these stealthy weapons in the hands of
terrorists, lone wolf killers, or mentally unstable individuals, it will become virtually impossible to protect
anyone from gun violence,” Ranking Member Engel wrote.
The State Department’s change in policy is the result of a settlement of a law suit: Defense Distributed v.
United States. If no action is taken, the policy takes effect on July 27, 2018.
Text of the letter can be found here (https://democratsforeignaffairs.house.gov/sites/democrats.foreignaffairs.house.gov/files/07-20-18%20Letter%20to%
20Secretary%20Pompeo%20Regarding%203-D%20Printed%20Arms.pdf) and below:
Dear Mr. Secretary:
I write to register my profound concern about an action by Department of State officials to remove from export
controls certain software for 3-D printing of firearms. This is exceptionally dangerous because it will promote
global availability of such technical information and consequent unrestricted manufacture of firearms. This
action was taken in settling a lawsuit: Defense Distributed v. United States.
There are several disturbing aspects of the Department’s action. Foremost is the likelihood that weapons will
become available to anyone with a laptop and a 3-D printer. This defeats US laws which require background
checks on the sale of weaponry. The danger is magnified because 3-D printed fireams would be made of

https://democrats-foreignaffairs.house.gov/news/press-releases/engel-decries-state-departm... 7/29/2018

Engel Decries State Department Policy to Allow 3-D Gun Printing | House Committee on... Page 2 of 2

plastic and, therefore, undetectable by most security systems. With these stealthy weapons in the hands of
terrorists, lone wolf killers, or mentally unstable individuals, it will become virtually impossible to protect
anyone from gun violence.
Moreover, the text of the settlement, attached, suggests that the Department’s officials are mis-using authority
under Section 126.2 of the International Traffic in Arms Regulations to “temporarily” remove this technical
information from the United States Munitions List (USML). However, as anyone who has ever posted
something on the internet knows, once posted, the item is instantly and permanently available to all who seek
it. Therefore, it is impossible to temporarily publish 3-D gun printing software on the internet. In as much as
Sec. 126.2’s authority is reserved for use only in the interests of U.S. security and foreign policy. It stretches
credulity to believe that release of this information is in the U.S. interest.
Use of this temporary ITAR authority also suggests that Department officials sought a way to avoid complying
with Section 38(f) of the Arms Export Control Act, which requires advance notification to Congress for any
removal from the USML.
The settlement of this lawsuit is slated to go into effect by July 27th. I urge you to suspend the Department’s
implementation of the settlement immediately and prevent the inappropriate and dangerous release of this
technical information.
Sincerely,
###

https://democrats-foreignaffairs.house.gov/news/press-releases/engel-decries-state-departm... 7/29/2018