The Government's Administration of the Provision Mandating that Imitation Firearms be Marked Leaves Much to be Desired
By Bruce N. Shulman
"Bang! Bang! You're dead!" For years, children have been yelling similar lines while playing cops and robbers, and cowboys and Indians, or while pretending to be soldiers or aliens. Whether the children use their fingers, crudely carved pieces of wood, or toys sold in retail shops, this type of play has almost always entailed using some type of imitation weapon or gun. In more recent years, games for older children and adults have been developed using paint ball or airsoft guns which look almost identical to real weapons.
In the late 1980's a spate of gun violence across the nation, combined with several instances in which toy or imitation firearms were used during crimes, caused people to focus on the role of weapons in society. As a result, in 1988 Congress enacted a law, which makes it "unlawful" to manufacture, enter into commerce, ship, transport, or receive any toy, look-alike, or imitation firearm unless it contains, or has affixed to it, a marking approved by the Secretary of Commerce. This law provides that, with certain exceptions[1], imitation firearms shall have "as an integral part, permanently affixed, a blaze orange plug inserted in the barrel of such toy ...."
In 1989, the Department of Commerce adopted regulations, to enforce the new requirement[2]. While these regulations basically follow the mandate of the law, they do not address the criteria which will be used to determine if a blaze orange plug is "permanently affixed."
Even though the two agencies mandated to enforce the toy gun marking law, The National Institute of Standards and Technology [NIST] and United States Customs and Border Protection [CBP] are aware that there is a problem of what is "permanent", neither agency has proposed regulations defining the term nor have they adopted any internal written standards to assess whether the orange plugs are permanently affixed[3]. Instead, NIST and CBP personnel advise us that both agencies use a "reasonable" standard to assess what is permanent. A small number of rulings issued by CBP hold that an orange plug is considered permanent if it is incapable of being removed by twisting with one's hand[4].
Because there are neither regulations nor standards to assess the permanency of the orange plugs, personnel at the various Customs ports of entry, in conjunction with advice received from NIST, are attempting to administer the orange plug mandate. But does not appear to be an agreement whether the orange plugs may be glued to the toy, what type of glue must be used or whether the plugs can be screwed on, attached with fasteners or force fitted, etc. As a result, CBP continues to seize the toys based on no real standard. We examined samples of guns seized[5] by CBP which claimed were imported without permanent orange plugs. We discovered that the personnel used tools to remove the plugs, contrary to any "reasonable" standard or the rulings issued by CBP.
Compounding the problem, after CBP issued decisions responding to requests for cancellation of its seizures, CBP did not inform the importers how the firearms are in violation of the statute or how to bring them into compliance [6]. While NIST personnel confirm that it has a policy to permit remediation, CBP's decisions do not specify acceptable remediation.
It is clear that an orange plug can always be removed or concealed with paint[7]. It is also clear that, unlike real firearms, toy firearms have a limited life expectancy. NIST and CBP must take these two facts into consideration in defining or interpreting the term "permanently" in the statute. CBP generally interprets that country origin marking labels are permanent if the article reaches the ultimate consumer with the marking intact. Nor is there any rationale to require a method of attachment last beyond the average life expectancy of a toy gun. Finally, if NIST, CBP or Congress believe that there is a growing problem with consumers removing or painting over the orange plugs, then perhaps it is time that the statute be amended to make those acts unlawful because there is certainly no such thing as a truly "permanent" orange plug. In the absence of a definitive standard, the application of a "hit or miss" subjective standard can only be arbitrary.
Bruce Shulman is resident in Stein Shostak Shostak Pollack & O'Hara, LLP Washington D.C. Office. For more information, e-mail Bruce at bshulman@steinshostak.com.
[1]. 15 U.S.C. §5001 covers only look-alike firearms which are imitations of those produced since 1898. It also exempts from marking any look-alike, nonfiring, collector replica or an antique firearm, developed prior to 1898, or traditional B-B, paint-ball or pellet-firing air guns that expel a projectile through the force of air pressure.
[2]. 54 Fed. Reg. 19,356 (1989).
[3]. Requests by our firm to NIST and CBP for any internal standards pursuant to the Freedom of Information Act resulted in those agencies advising they had no records responsive to the requests.
[4]. See, e.g. CBP Headquarters Ruling HQ 451258 of August 19, 1991.
[5]. Pursuant to 19 U.S.C. §1595a(c)(2)(A), CBP is authorized to seize and forfeit merchandise if "its importation or entry is subject to any restriction or prohibition which is imposed by law relating to health, safety, or conservation and the merchandise is not in compliance with the applicable rule, regulation, or statute."
[6]. 19 CFR §162.31(a)(2) requires that CBP seizure notices must contain, "A description of the specific acts or omissions forming the basis of the alleged violations."
[7]. Police have reacted to the orange plug mandate by stating that it is "ineffective," "ridiculous," and "ludicrous," for several reasons, including the ease of altering the markings. Toy Guns, Involvement in Crime & Encounters with Police, Bureau of Justice Statistics, National Institute of Justice, United States Department of Justice (June 1990) at Pages 37-8.
