15 C.F.R. § 734.7

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(a) Except as set forth in paragraphs (b) and (c) of this section, unclassified “technology” or “software” is “published,” and is thus not “technology” or “software” subject to the EAR, when it has been made available to the public without restrictions upon its further dissemination such as through any of the following:

(1) Subscriptions available without restriction to any individual who desires to obtain or purchase the published information;

(2) Libraries or other public collections that are open and available to the public, and from which the public can obtain tangible or intangible documents;

(3) Unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the interested public;

(4) Public dissemination (i.e., unlimited distribution) in any form (e.g., not necessarily in published form), including posting on the Internet on sites available to the public; or

(5) Submission of a written composition, manuscript, presentation, computer-readable dataset, formula, imagery, algorithms, or some other representation of knowledge with the intention that such information will be made publicly available if accepted for publication or presentation:

(i) To domestic or foreign co-authors, editors, or reviewers of journals, magazines, newspapers or trade publications;

(ii) To researchers conducting fundamental research; or

(iii) To organizers of open conferences or other open gatherings.

(b) Published encryption software classified under ECCN 5D002 remains subject to the EAR unless it is publicly available encryption object code software classified under ECCN 5D002 and the corresponding source code meets the criteria specified in § 742.15(b) of the EAR.

(c) The following remains subject to the EAR: “software” or “technology” for the production of a firearm, or firearm frame or receiver, controlled under ECCNs 0A501, 0A506, 0A507, or 0A509, that is made available by posting on the internet in an electronic format, such as AMF or G-code, and is ready for insertion into a computer numerically controlled machine tool, additive manufacturing equipment, or any other equipment that makes use of the “software” or “technology” to produce the firearm frame or receiver or complete firearm.

[81 FR 35602, June 3, 2016, as amended at 81 FR 64668, Sept. 20, 2016; 85 FR 4172, Jan. 23, 2020; 89 FR 34698, Apr. 30, 2024]

Notes of Decisions

Cited in 4 cases (2 in the last 5 years), 1997–2023 · leading case: State of Washington v. U.S. Dept. of State, 996 F.3d 552 (9th Cir. 2021).

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State of Washington v. U.S. Dept. of State, 996 F.3d 552 (9th Cir. 2021). · cites it 2× “But after considering commentors’ concerns, Commerce decided to add 15 C.F.R. § 734.7 (c) to ensure that 3D-printed-gun files would remain regulated, even if posted online.”

Bernstein v. United States Dep't of State, 974 F. Supp. 1288 (N.D. Cal. 1997). “68578 (to be codified at 15 C.F.R. § 734.7 (c)). In addition, the EAR allows for broadly defined exceptions from the regulations for information resulting from fundamental research and educational information.”

Bernstein v. United States Dep't of Just., 176 F.3d 1132 (9th Cir. 1999). “These exceptions allow for export of software that is publicly available, 15 C.F.R. § 734.7 (c); results from fundamental research or is educational, 15 C.”

Def. Distributed v. Grewal (D.N.J. 2023). “15 C.F.R. § 734.7 (c). Against this federal regulatory framework, Plaintiffs claim that Defendant’s use of the Challenged Statute to stop Plaintiffs’ publication of digital firearms data “is preempted by the federal government’s exclusive authority over foreign affairs.”

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