UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON; STATE OF No. 20-35391 CALIFORNIA; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF D.C. No. DELAWARE; DISTRICT OF COLUMBIA; 2:20-cv-00111- STATE OF HAWAII; STATE OF RAJ ILLINOIS; STATE OF MAINE; STATE OF MARYLAND; COMMONWEALTH OF MASSACHUSETTS; STATE OF OPINION MICHIGAN; STATE OF MINNESOTA; STATE OF NEW JERSEY; STATE OF NEW YORK; STATE OF NORTH CAROLINA; STATE OF OREGON; COMMONWEALTH OF PENNSYLVANIA; STATE OF RHODE ISLAND; STATE OF VERMONT; COMMONWEALTH OF VIRGINIA; STATE OF NEW MEXICO; STATE OF WISCONSIN, Plaintiffs-Appellees,

v. UNITED STATES DEPARTMENT OF STATE; ANTONY J. BLINKEN, in his official capacity as Secretary of State; DIRECTORATE OF DEFENSE TRADE CONTROLS; MIKE MILLER, in his official capacity as Deputy Assistant Secretary of State for 2 STATE OF WASHINGTON V. U.S. DEP’T OF STATE

Defense Trade; SARAH HEIDEMA, in her official capacity as Director of Policy, Office of Defense Trade Controls Policy; UNITED STATES DEPARTMENT OF COMMERCE; GINA RAIMONDO, in her official capacity as Secretary of Commerce; BUREAU OF INDUSTRY AND SECURITY; MATTHEW S. BORMAN, in his official capacity as Acting Assistant Secretary of Commerce for Export Administration; CORDELL HULL, Defendants-Appellants, NATIONAL SHOOTING SPORTS FOUNDATION, INC.; FREDRIC'S ARMS & SMITHS, LLC, Intervenor-Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Argued and Submitted January 11, 2021 San Francisco, California

Filed April 27, 2021 STATE OF WASHINGTON V. U.S. DEP’T OF STATE 3 Before: Jay S. Bybee and Ryan D. Nelson, Circuit Judges, and Robert H. Whaley, * District Judge.

Opinion by Judge R. Nelson; Dissent by Judge Whaley

SUMMARY **

Federal Rulemaking / Judicial Review

The panel vacated the district court’s order that granted the motion of 22 states and the District of Columbia (“Plaintiffs”) to enjoin the U.S. Department of State (“DOS”)’s Final Rule removing 3D-printed guns and their associated files from the U.S. Munitions List.

Under the International Security Assistance and Arms Export Control Act of 1976 (the “Control Act”) (codified at 22 U.S.C. § 2778(a)(1)), Congress authorized the President to designate “defense articles” and regulate their import and export. When DOS designates an item as a defense article, it is placed on the U.S. Munitions List and regulated by the International Traffic in Arms Regulations (“ITAR”). Congress delegated to the President’s discretion the decision concerning when an item becomes a “defense article.” The Department of Commerce (“Commerce”) is empowered to regulate non-Munitions List items under the Export Control

* The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 STATE OF WASHINGTON V. U.S. DEP’T OF STATE Reform Act, and these items are placed on the Commerce Control List (“CCL”). Congress gave Commerce broad discretion in deciding which items to place on the CCL.

On May 24, 2018, DOS proposed a rule removing 3D- printed-gun files from the Munitions List and regulation under ITAR, and placing them on the CCL, regulated by Commerce under the Export Administration Regulations instead. The same day, Commerce proposed its own rule expressly assuming regulatory jurisdiction over these items. Following notice and comments, DOS and Commerce, respectively, promulgated Final Rules on January 23, 2020. Pur