Appendix — JA-RU v. City of New York

Supreme Court brief1996

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Court of Appeals, State of New York,

Opinion dated May 7, 1996......................., la

Order of the Appellate Division of the Supreme

Court, First Judicial Department in the County

of New York Granting Leave to Appeal dated

I WR WU da hice tciecwedeecciececedcosces 10a

Appellate Division, Supreme Court, First Department

Decision dated March 14, 1995................... 12a

Supreme Court of the State of New York, County of

New York Decision dated April 12, 1994......... 20a

Chapter 76—Imitation Firearms ....................... 27a

Code of Federal Regulations........................... 30a

Federal Register/Vol. 57, No. 207

Monday October 6, 1992/Rules and Regulations. 34a

Federal Register/Vol. 54, No. 86

PE UN Os I on kb Oca knew a cineceasdecacacne 47a

Federal Register/Vol. 54, No. 86

Friday May 5, 1989/Rules and Regulations ...... 53a

New York City Administrative Code § 10-131(g) ..... 56a

COURT OF APPEALS

STATE OF NEW YORK

1 No. 96

CITY OF NEW YorK,

Respondent,

—_V—

JOB-LOT PUSHCART, et al.,

Defendants,

JA-RU,

Appellant.

FREDERICK B. LOCKER, for appellant.

GEORGE GUTWIRTH, for respondent.

OPINION

CIPARICK, J.:

Since 1955, New York City has outlawed the sale, posses-

sion or use of any toy or imitation gun which substantially

resembles an actual firearm because of the toy’s potential for

nefarious exploitation (see, Administrative Code of City of

NY § 10-131[g}; Proc of NYC Council, at 24 [Jan 18, 1955}).

Only toy guns that are not blue, black, silver or aluminum in

color, bear an identifiable trade name or mark, and contain a

solid plug in the barrel can be sold, possessed or used in New

York City (see, Administrative Code § 10-131[g]). At issue is

whether these conditions are preempted by the 1988 Federal

Toy Gun Law. We conclude that Congress has not expressly

or impliedly preempted local regulation of the markings on

toy guns and that the conditions set forth in Administrative

Code § 10-131(g) are not incompatible or inconsistent with

those provided in the Federal Toy Gun Law in that compli-

ance with both is not impossible. Indeed, compliance with the

Administrative Code conditions furthers the public safety aim

of the federal statute. Therefore, we affirm the order of the

Appellate Division and answer the certified question in

the affirmative.

The City instituted this action against defendants, entities

that place toy guns into the New York City stream of com-

merce, to permanently enjoin the manufacture, distribution,

transportation, sale and possession of toy weapons in viola-

tion of Administrative Code § 10-131(g). Evidently, the toy

guns confiscated from defendants duplicate the semi-auto-

matic assault pistols frequently used in the commission of

crimes, are black in color, and do not bear any mark identi-

fying the manufacturer. In opposition to plaintiff’s order to

show cause seeking a preliminary injunction, defendant-

appellant JA-RU, Inc., a national distributor and marketer of

toy guns, moved for a declaration that Administrative Code

§ 10-131(g) was preempted by the Federal Toy Gun Law (15

USC §5001) and its implementing regulations (15 CFR

§ 1150, et seq) (collectively, the Federal Toy Gun Law), argu-

ing that the City’s action contravened the federal statute reg-

ulating toy weapons. Ja-Ru represented that it distributes toy

guns that comply with the markings approved by the Secre-

tary of Commerce, which require that the toy contain a “per-

manently affixed blaze orange plug inserted in the barrel

recessed no more than 6 millimeters from the muzzle end”

(15 CFR § 1150.3[a]).

Supreme Court preliminarily enjoined defendants from sell-

ing and distributing toy guns in violation of Administrative

Code § 10-131(g), and denied Ja-Ru’s motion by declaring

that Administrative Code § 10-131(g) is not preempted by 15

USC 5001. The Appellate Division affirmed, with two Jus-

tices dissenting (see, City of New York v Job-Lot Pushcart et

al, 213 AD2d 210), and certified to us the question, “Was the

order of Supreme Court, as affirmed by this Court, properly

made?”

On this appeal, Ja-~-Ru strenuously argues that Congress’s

intent to preempt all state and local laws relating to toy guns

is plain on the face of 15 USC § 5001(g). According to Ja-Ru,

Congress delineated a comprehensive scheme of identification

and markings that cannot be superseded by a different state or

local scheme. Because Administrative Code § 10-131(g) pro-

hibits what is permitted under the Federal Toy Gun Law,

Ja-Ru asserts, the Administrative Code provision is incon-

sistent with the Federal Toy Gun Law. Ja-Ru posits that

preemption of the incompatible City law comports with “one

of the [federal statute’s] essential purposes . . . a uniform

scheme of national regulation.” We disagree.

Il.

The premise of Ja-Ru’s argument is the well-settled rule

that the Supremacy Clause of the United States Constitution

(US Const, art VI, cl 2) invalidates State or local laws that

“interfere with or are contrary to” Federal law (Gibbons v

Ogden, 22 US 1, 211). However, the conclusion urged by

Ja~Ru—that the Federal Toy Gun Law preempts Administra-

tive Code § 10-131(g)—does not result from an application of

traditional preemption principles but from the economic

impact on Ja-Ru as a result of the ban on the distribution of

its toy guns in New York City.

The threshold issue in the preemption analysis is whether

the subject Federal legislation intrudes on traditional police

powers reserved to the States (see, Cipollone v Liggett Group

Inc., 505 US 504, 516). Historically, the regulation of health,

safety and welfare has been the province of the States (see,

Toy Mfrs of America, Inc. v Blumenthal, 986 F2d 615, 617).

The United States Supreme Court has decreed that unless

Congress manifestly and clearly intends to preempt the

States’ exercise of jurisdiction over matters relating to the

welfare of their citizens, the States’ police powers are not to

be superseded by a Federal Act (see, Rice v Santa Fe Eleva-

tor Corp, 331 US 218, 230; see also, Fidelity Fed Sav & Loan

Assn v De la Cuesta, 458 US 141, 152-153; United Auto, Air-

craft and Agr Implement Workers of America v Wisconsin

Empl Rel Bd, 351 US 266, 274-275 [“States are the natural

guardians of the public against violence . . . We would

not interpret an act of Congress to leave them powerless

to avert. . . emergencies without compelling directions to

that effect”]; Florida Lime and Avocado Growers, Inc. v Paul,

373 US 132, 146-147; NY Const, art IX, § 2[c][ii]). There-

fore, the “purpose of Congress is the ultimate touchstone of

preemption analysis” (Retail Clerks Int’] Assn, Local 1625 v

Schermerhorn, 375 US 96, 103).

Because it is uncontroverted that Administrative Code § 10-

131(g) represents a valid exercise of the police powers dele-

gated to the City by the State Constitution and the Municipal

Home Rule provisions (see, People v Judiz, 38 NY2d 529,

531), the efficacy of the City ordinance turns on whether

Congress has preempted all State and local regulation of toy

guns pursuant to 15 USC § 5001(g) (see, Florida Lime and

Avocado Growers, Inc v Paul, 373 US, at 42, supra; see also,

Consolidated Edison Co of NY, Inc v Town of Red Hook, 60

NY2d 99, 107; People v DeJesus, 54 NY2d 465, 468; People

v Lewis, 295 NY 42, 49-50).

As we summarized in People v Pymm, 76 NY2d 511, 519,

cert denied sub nom, Pymm v NY, 498 US 1085, there are

three ways in which a Federal law can preempt a State or

local law: one, by express provision in the Federal statute;

two, by inference, where the Federal legislative scheme is so

pervasive and the character of the obligations imposed leaves

no room for the State or local government to legislate; and

three, to the extent that the State or local law actually con-

flicts with the Federal law, for example where compliance

with both is impossible or adherence to the State or local law

would thwart the objectives of its Federal counterpart ([inter-

nal citations omitted]; see also, Barnett Bank of Marion Co,

N.A. v Nelson, __ US __, 64 USLW 4161, 4162-4163).

We turn first to a consideration of the specific language of

preemption employed by Congress in the Federal Toy Gun

Law.

The preemption provision in the Federal Toy Gun Law

provides that

The provisions of this section shall supersede any pro-

vision of State or local laws or ordinances which provide

for markings or identification inconsistent with provi-

sions of this section provided that no State shall

(i) prohibit the sale or manufacture of any look-alike,

nonfiring, collector replica of an antique firearm devel-

oped prior to 1898, or

(ii) prohibit the sale (other than prohibiting the sale to

minors) of traditional B-B, paint ball, or pellet-firing air

guns that expel a projectile through the force of air pres-

sure.

(15 USC § 5001[g]}).

The sweep of the Federal Toy Gun Law’s preemption clause

is not as far-reaching as Ja-Ru and the dissenters below con-

tend by urging that the statutory language explicitly preempts

the field and ends the inquiry (see, City of New York v Job-

Lot Pushcart Inc, 213 AD2d, at 213, supra). Rather, the

plain language employed by Congress demonstrates that only

State regulation of replicas of antique collector firearms,

B-B guns, paint ball guns, or pellet-firing air guns is

expressly preempted under 15 USC § 5001(g), which bars any

State from prohibiting the sale of such devices, and with

respect to antique replicas of pre-1898 firearms, the manu-

facture of such devices (see, 15 USC § 5001[g][i] and [ii];

Coalition of New Jersey Sportsmen v Florio, 744 F Supp 602,

608-609).

The clearly defined reach of this provision compels the

conclusion that Congress did not intend to supersede all local

reguiation of markings on toy guns. Where “Congress has

considered the issue of preemption and has included. . .a

provision explicitly addressing that issue . . ‘there is no need

to infer congressional intent to preempt [other] state laws

from the substantive provisions of the legislation.’ . . .

Congress’ enactment of a provision defining the preemptive

reach of a statute implies that matters beyond that reach are

not preempted” (Cipollone v Liggett Group, Inc., 505 US, at

517, supra [internal citation omitted]; see also, Vatore v

Commn of Consumer Affairs of the City of NY, 83 NY2d 645,

650). Similarly, when we considered whether a State envi-

ronmental statute superseded a town ordinance on the same

subject, we rejected the proposition that the “mere fact that

the State deals with a subject [means] it automatically pre-

empts it” (Monroe-Livingston Sanitary Landfill Inc. v Town of

Caledonia, 51 NY2d 679, 683; see also, People v Lewis, 295

NY, at 50, supra).

The limited scope of the preemption clause is confirmed by

the comments of the legislation’s sponsor, Senator Robert

Dole, made during the Senate debate that “[a]t the suggestion

of the California Senators, the preemption section has been

modified to accommodate the new California law” (134 Cong

Rec $15531, 15534 [daily ed. Oct 6, 1988]). The very fact

that the preemption clause in the federal statute was modified

before adoption, to permit a recently enacted California

statute to stand, constitutes an explicit acknowledgment of the

validity of State regulatory measures and provides compelling

evidence that Congress was not impliedly imposing a perva-

sive, preemptive regulatory scheme. Ja-Ru’s assertion, then,

that the essential purpose of the Federal Toy Gun Law is

to promote a “uniform system of national regulation” rings

hollow. This contention is further undermined when Ja-Ru’s

true intention—the unimpeded flow of toy guns through inter-

state markets—is juxtaposed against the actual goal of the

Federal Toy Gun Law—guarding the public safety, which was

also the motivating objective for the City Council’s adoption

of Administrative Code § 10-131(g) in 1955 (see, 134 Cong

Rec, at S$15534, supra, [statement of Sen Dole that the pur-

pose of his amendment was to “allow continued production,

sale and distribution of toy guns, while at the same time

reducing the potential for misuse as much as possible...

[as] a few incidents have actually occurred to date involving

the criminal misuse of toy or imitation guns. . .”]; 134 Cong

Rec H10071 [daily ed. Oct 12, 1988] [statement of Rep Moor-

head, same as above]; Proc of Council of NYC, at 24, supra).

However laudable a national public safety campaign regu-

lating the sale and use of realistic toy guns may be, it remains

that Congress did not enact the Federal Toy Gun Law to sup-

plant all State and local measures. The issue then narrows to

whether the conditions set forth in Administrative Code § 10-

131(g) “provide for markings or identification inconsistent

with the provisions” of the Federal Toy Gun Law to the extent

that there is “such actual conflict between the two schemes of

regulation that both cannot stand in the same area” (Florida

Lime and Avocado Growers, Inc. v Paul, 373 US at, 142-143,

supra).

On the State level, “inconsistency ‘has been found where

local laws prohibit what would have been permissible under

State law or impose prerequisite additional restrictions’ on

rights under State law, so as to inhibit the operation of the

State’s general laws” (New York State Club Assn, Inc. v City

of New York, 69 NY2d 211, 217 affd 487 US 1, quoting. FTB

Realty Corp. v Goodman, 300 NY 140, 147-148 [internal cita-

tions omitted]; see also, Florida Lime and Avocado Growers

Inc. v Paul, 373 US, at 143, supra; Vatore v Commn of Con-

sumer Affairs of the City of NY, 83 NY2d, at 649, supra;

Monroe-Livingston Sanitary Landfill, Inc. v Town of Cale-

donia, 51 NY2d, at 682, supra). Likewise, where Congress

has not expressed an intent to supersede all State or local reg-

ulation in a field, a State or local law will be preempted if it

is impossible to comply with both the local and Federal law

(see, Florida Lime Avocado Growers, Inc. v Paul, supra, 373

US, at 142-143), or the State or local law stands as an obsta-

cle to the accomplishment of the full purposes and objectives

of Congress (see, Hines v Davidowitz, 312 US 52, 67; Barnett

Bank of Marion Co, N.A. v Nelson, 64 USLW, at 4163, supra).

The Federal Toy Gun Law only supersedes State or local

laws that “provide for markings or identification inconsistent

with” its terms. The additional conditions imposed by Admin-

istrative Code § 10-131(g) do not conflict with the conditions

enumerated in the Federal Toy Gun Law. As the Appellate

Division noted “it is feasible to make a red or purple toy gun

[which bears the manufacturer’s trade name and contains] an

orange [plug], satisfying both laws” (City of New York v Job-

Lot Pushcart, 213 AD2d, at 210, supra). Therefore, it is not

impossible to comply with both the Federal Toy Gun Law and

Administrative Code § 10-131(g). That the sale of Ja-Ru’s toy

guns is only illegal under the terms of the local provision is

not a basis for preemption of the City law, as the dissenters

below opine, because “this general principle applies only

where the Legislature has shown its intent to preempt the

field” (Vatore v Commn of Consumer Affairs of NYC, 83

NY2d, at 651, supra). Indeed, compliance with both the

Federal and local laws at once furthers the intent of Congress

and achieves the public safety objective underlying each

measure. The Federal Toy Gun Law seeks to impose some

regulatory guidelines, in part, to override local laws that com-

pletely banned toy guns from certain jurisdictions (see, 57

Fed Reg 48,451 [1992] [codified at 15 CFR § 1150 et seq];

134 Cong Rec, at $15534, supra). In response to these local

bans, the Hobby and Toy Industry of America and the Toy

Manufacturers of America pressed Congressional members

for passage of the Federal Toy Gun Law, which incorporates

markings voluntarily adopted by the industry (see, 134 Cong

Rec, at $15534, supra). Against this backdrop, the Federal

Toy Gun Law is not an attempt to dominate the field. States

and localities can erect a regulatory framework that expands

upon the Federal foundation, and to the extent that Admin-

istrative Code § 10-131(g¢) complements the Federal Toy Gun

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Law, the City’s regulatory conditions can co-exist with the

federal statute.

Accordingly, the order of the Appellate Division should be

affirmed, with costs, and the certified question answered in

the affirmative.

* * *

Order affirmed, with costs, and certified question answered

in the affirmative. Opinion by Judge Ciparick. Chief Judge

Kaye and Judges Simons, Titone, Bellacosa, Smith and

Levine concur.

Decided May 7, 1996

10a

ORDER GRANTING LEAVE TO APPEAL

At a Term of the Appellate Division of the Supreme Court

held in and for the First Judicial Department in the County of

New York, on September 26, 1995

Present—Hon. Francis T. Murphy, Presiding Justice

Betty Weinberg Ellerin

Israel Rubin

Milton L. Williams, Justices

M-3288

Index No. 407282/93

CITY OF NEW YORK,

Plaintiff-Respondent,

—against—

JOB-LOT PUSHCART, et al.,

Defendants,

JA-RU,

Defendant-Appellant.

The above-named defendant-appellant, having moved for

leave to appeal to the Court of Appeals from the decision and

order of this Court entered on March 14, 1995 (Appeal No.

53255),

MEER EE Naat LAD LTA LES ALE FELINE DWE REN a EAA RS ESTEE ete A eee

lla

Now, upon reading and filing the papers with respect to the

motions, and due deliberation having been had thereon,

It is ordered that the motion be and the same hereby is

granted insofar as to grant leave to appeal to the Court of

Appeals, and this Court, pursuant to CPLR 5713, certifies that

the following question of law, decisive of the correctness of

its determination, has arisen, which in its opinion ought to be

reviewed by the Court of Appeals:

“Was the order of the Supreme Court, as affirmed by

this Court, properly made?”

This Court further certifies that its determination was made as

a matter of law and not in the exercise of discretion.

ENTER:

/s/ CATHERINE O’HAGAN WOLFE

Catherine O’Hagan Wolfe

Clerk

12a

APPELLATE DIVISION, SUPREME COURT

FIRST DEPARTMENT

March 14, 1995

THE COURT ANNOUNCES THE FOLLOWING DECISIONS:

Murphy, P.J., Rosenberger, Ellerin, Rubin, Williams, JJ.

$3255

CITY OF NEW YORK,

Plaintiff-Respondent, G.Gutwirth

—against—

JoB-LOT PUSHCART, et ai.,

Defendants,

JA-RU,

Defendant-Appellant, F.B. Locker

Order, Supreme Court, New York County (Alice Schlesinger,

J.), entered on or about April 12, 1994, which, inter alia,

granted plaintiff's motion for a preliminary injunction

against defendant JA-RU, enjoining it from violating New

York City Administrative Code § 10-131 (g), affirmed, with-

out costs.

The IAS court properly found that Administrative § 10-

131(g), which, inter alia, governs the sale, possession, man-

ufacturing, distributing and transporting of toys or imitation

13a

pistols or revolvers, was not preempted by 15 USC § 5001,

and Federal regulations 15 CFR part 1150, which also gov-

erns, inter alia, the manufacture, shipping, and transport of

any toy, look-alike and imitation firearms.

Consideration of issues arising under the Supremacy Clause

of the US Constitution (Art. VI) “start[s] with the assumption

that the historic police powers of the States were not to be

superseded by Federal Act unless that was the clear and man-

ifest purpose of Congress” (Rice v Santa Fe Elev. Corp., 331

US 218, 230). “In the absence of an express congressional

command, state law is pre-empted if that law actually con-

flicts with federal law... ”. (Cipollone v Liggett Group,

112 S Ct 2608, 2617). A conflict occurs either because “com-

pliance with both federal and state regulations is a physical

impossibility” (Florida Lime & Avocado Growers, Inc. v.

Paul, 373 US 132 142-143), or because the State law “stands

as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress” Hines v Davidowitz,

312 US 52, 67). Here, rather than being inconsistent, the code

complements the Federal statute inasmuch as both statutes

may be satisfied simultaneously. In this regard, defendant

argues that the Federal statute allows what the Administrative

Code prohibits, namely, the sale of black, blue, silver or alu-

minum guns, provided they contain the required blaze orange

plug or blaze orange band markings prescribed by the federal

regulations. However, it is feasible to make a red or purple

toy gun with an orange band, thus satisfying both laws.

Defendant also claims that the Federal statute expressly pro-

vides for a blaze orange plug or a band marking on the barrel

of the toy, recessed no more than 6 millimeters from the muz-

zle end of such barrel (15 USC 5001[b}[1]), while the Admin-

istrative Code requires that the barrel of such guns “be closed

with the same material of which the gun is made for a dis-

tance of not less than '/,” from the front of said barrel. It

gives an example that “if a plastic blaze orange plug is

inserted in a metal toy gun, it would be violative of the Code

on its face.” However, a toy gun with a closed barrel and an

orange blaze band, made in a color other than those prohib-

ited by the Administrative Code, would also satisfy both laws.

l4a

As defendant concedes, the Federal statute allows for a “blaze

orange band” around the perimeter of the gun barrel on func-

tion water or light-emitting guns in lieu of plugging in the

barrel in its entirety. Moreover, as the I.A.S. court properly

found, the purpose of the Federal statute and Administrative

Code are the same: to prevent the sale of toy guns so closely

copied from actual weapons as not to be readily discernible as

toys, which plaintiff has shown have been utilized in the com-

mission of violent crimes.

Accordingly, the court properly found that plaintiff was

likely to prevail in its effort to enforce the Administrative

Code against defendant. In addition, its conclusion that

irreparable harm would occur without the injunction, based on

the role toys guns play in the commission of crimes, and its

determination that the equities balance in plaintiff’s favor, on

the grounds that the City has a right to protect its citizenry,

was well founded.

We have reviewed defendant’s other claims and find them

to be without merit.

All concur except Rosenberger, J. and Rubin, J. who

dissent in a memorandum by Rubin, J., as follows:

RUBIN, J., dissenting.

At issue on this appeal is whether a section of the New

York City Administrative Code that regulates the sale, pos-

session and use of toy guns (§ 10-131[g]) is preempted

by federal legislation entitled “Penalties for Entering Into

Commerce of Imitation Firearms” (enacting 15 USC § 5001;

Coalition of New Jersey Sportsmen v Florio, 744 F Supp 602,

607). The Administrative Code provision, enacted into law in

1955, makes it unlawful “to sell or offer for sale, possess

or use or attempt to use or give away, any toy or imitation

pistol or revolver which substantially duplicates an actual pis-

tol or revolver, unless said imitation or toy pistol or revolver

shall be colored in colors other than black, blue, silver or

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aluminum, and further provided that the barrel of said toy or

imitation pistol or revolver shall be closed with the same

material of which the toy or imitation pistol or revolver is

made for a distance of not less than one half inch from the

front end of said barrel” (§ 10-131[g]). The Administrative

Code also requires “the name of the manufacturer or some

trade name, mark or brand by which the manufacturer can be

readily identified” to be stamped legibly on the item.

Plaintiff brought this action seeking to permanently enjoin

defendants from continuing to violate Administrative Code

§ 10-131(g) and from maintaining what it contends is a com-

mon law nuisance. Supreme Court granted a motion by plain-

tiff to preliminarily enjoin defendants from distributing the

toy guns which, according to plaintiff's brief, are “entirely

black in color * * * except for one orange piece at the tip”

and fail to carry “any stamp bearing the name of the manu-

facturer, trade name or brand”. Defendants assert, however,

and plaintiff does not deny, that the toys are in full compli-

ance with federal legislation governing their coloring and

markings.

In 1988, Congress enacted 15 USC § 5001, providing

detailed requirements regarding the appearance of non-func-

tional firearms. Insofar as pertinent to the facts of this case,

the law prohibits “any person to manufacture, enter into com-

merce, ship, transport, or receive any toy, look-alike, or imi-

tation firearm” without a “blaze orange plug inserted in the

barrel * * * recessed no more than 6 millimeters from the

muzzle end of the barrel of such firearm” (15 USC § 5001 [a];

[b]). The statute contains a provision captioned “Preemption

of State or local laws or ordinances; exceptions”, which

states: “The provisions of this section shall supersede any

provision of State or local laws or ordinances which provide

for markings or identification inconsistent with provisions

of this section provided that no State shall—(i) prohibit the

sale or manufacture of any look-alike, nonfiring, collector

replica of an antique firearm developed prior to 1898, or

(ii) prohibit the sale (other than prohibiting the sale to

minors) of traditional B-B, paint ball, or pellet-firing air guns

16a

that expel a projectile through the force of air pressure” (15

USC 5001[g]).

It is apparent from even a cursory examination of the

Administrative Code provision that its requirements for the

marking and identification of toy firearms are inconsistent

with those contained in the federal statute. It is also hard to

imagine a more specific expression of Congressional intent

than the preemption of local ordinances that “provide for

markings or identification inconsistent with the provisions of

this section” (15 USC § 5001[g]). Undeterred by either the

obvious inconsistency or the intent of Congress, Supreme

Court held that the Administrative Code provision is not

inconsistent with federal law because “making a toy gun, red

or purple, or yellow or green and putting a manufacturer’s

label on it could simultaneously be done by a manufacturer

together with the assertion of an orange plug, that is if the

manufacturer wanted his products sold in the New York City

market.”

It is irrelevant that a manufacturer might be able to comply

with the requirements of both federal and local legislation.

As this Court has noted, preemption involves a two-tiered

analysis, the first element of which is “whether Congress has

indicated the intent to preclude State regulation of the activ-

ities” addressed in its enactment (People v Calandra, 164

AD2d 638, 641, lv denied 77 NY2d 992). Here, the intent of

Congress to supersede local legislation regulating the appear-

ance of toy guns is apparent from the face of the statute. In

attempting to limit the scope of preemption, Supreme Court

relies on cases dealing with implicit, not express, preemption

that are inapposite under the circumstances presented by this

matter (see, Cipollone v Liggett Group, _._ US __, 112 S Ct

2608; Florida Lime and Avocado Growers v Paul, 374 US

858).

In this case, analysis does not proceed to the second tier,

which is that, “irrespective of any intent by Congress

to exclude State regulation, ‘a state statute is void to the

extent that it actually conflicts with a valid federal statute’ ”

(People v Calandra, supra, at 643, quoting Ray v Atlantic

Richfield Co., 435 US 151, 158). But, even at this level, the

TA TG ANAS TIT Ac net ARO ONE IES Pm a lao mie

17a

reasoning employed by Supreme Court is flawed. In deciding

if there is an actual conflict, the material consideration is not

whether a defendant may be able to simultaneously comply

with the requirements of the respective enactments, but that

“conduct which is lawful under the Federal statute may be

illegal under State law”, thereby rendering the local provision

a nullity (id.). Here, it is not contended that the toy guns

placed into commerce by defendants violate the provisions of

15 USC § 5001, only that they violate the provisions of the

Administrative Code. Even if the intent to preempt local laws

had not been expressly stated by Congress, defendants’ sale

of the toys is only illegal under the terms of the local provi-

sion, and it is therefore superseded by the federal legislation.

The only case interpreting 15 USC § 5001 brought to this

Court’s attention is Coalition of New Jersey Sportsmen v Flo-

rio (744 F Supp 602, supra). That decision merely applies the

Statutory bar against state laws prohibiting the sale of “tra-

ditional B-B, paint ball, or pellet-firing air guns” (15 USC

5001{(g][ii]) which are specifically exempted from its opera-

tion. As interpreted by Commerce Department regulations, the

statute applies to “toy, look-alike, and imitation firearms”

resembling weapons produced since 1898 and does not apply

to “(a) Non-firing collector replica antique firearms * * *

(b) Traditional B-B, paint-ball, or pellet-firing air guns * * *

and (c) Decorative ornamental, and miniature objects” that

resemble firearms (15 CFR § 1150.1).

In construing the intent of Congress, Supreme Court mis-

apprehends the language of the preemption provision. By lim-

iting the local ordinances superseded to those that “provide

for markings or identification inconsistent with provisions of

this section”, the statute does not render preemption of local

measures that purport to regulate the appearance of a toy gun

less than absolute. The limitation merely gives the locality the

latitude to regulate other aspects of the sale of toy guns, and

their sale could presumably be banned altogether. However,

the locality is absolutely precluded from enforcing regula-

tions, such as those contained in the Administrative Code

provision, that bear on such aspects of the toy’s design as

18a

its color, its markings and the specifications of the muzzle

plug.

It was an abuse of discretion to grant plaintiff’s motion for

a preliminary injunction. It is well settled that the grant of

preliminary relief requires the movant to demonstrate a likeli-

hood of ultimate success on the merits, immediate irreparable

injury in the event the relief sought is denied and a prepon-

derance of the equities to effect substantial justice and pre-

serve the status quo (W.T. Grant Co. v Srogi, 52 NY2d 496,

517). In view of the explicit preemption provision of the fed-

eral statute and the obvious inconsistency between its pro-

visions and those of the Administrative Code, plaintiff failed

to demonstrate a likelihood of success on the merits. In addi-

tion, plaintiff failed to establish that irreparable injury

was immediate. While there is certainly the potential for

commission of a crime with a toy that closely resembles an

operable weapon, the loss of sales to defendants from the

imposition of the injunction is both real and immediate. As

Supreme Court acknowledged in its memorandum decision,

plaintiff’s efforts in exacting defendants’ compliance with

Administrative Code § 10-131(g) resulted in a loss of sales

during the 1933 holiday season, and that impact has now

extended through the 1994 holiday period.

It is unfortunate that an innocuous object such as a toy gun

can be an instrument of violence and even death. In the dark,

even a crude imitation of a gun can employed to commit rob-

bery. The victim of such a ruse may assume the weapon is

real and shoot and kill the robber. Police responding to the

report of a crime in progress, suddenly confronted with a

child carrying a toy weapon, may make the same mistake with

tragic consequences to all concerned. However, Congress has

weighed the opposing factors of commerce and public safety

and enacted a statute encompassing its determination of the

competing policy considerations. The enactment is obviously

less than a perfect solution to the problem it is designed to

alleviate. It is, however, “the supreme law of the land” (US

Constitution, Art VI, cl 2), and conflicting state law is “with-

out effect” (Cipollone v Liggett Group, supra, at 2617).

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Accordingly, the order of Supreme Court, New York

County (Alice Schlesinger, J.), entered on or about April 12,

1994, which granted plaintiff City of New York’s motion for

a preliminary injunction, should be reversed and the motion

denied, without costs.

THIS CONSTITUTES THE DECISION AND ORDER OF THE

SUPREME COURT, APPELLATE DIVISION, FIRST DEPART-

MENT.

ENTERED: MARCH 14, 1995

/s/ CATHERINE O’HAGAN WOLFE

Catherine O’Hagan Wolfe

CLERK

20a

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

Index No. 407282/93

CITY OF NEW YORK,

Plaintiff,

—against—

JOBLOT PUSHCART, JA-RU, WEBER JOB LOT

CORPORATION AND MADISON LIMITED,

Defendants.

SCHLESINGER, J.

New York City wants to rid the town of toy look alike guns

and believes they should be able to do that via enforcement of

a provision of the New York City Administrative Code

In December of this past year, it moved to enjoin several

manufacturers and sellers from distributing toy guns in the

City which it claimed violated Code Section 10-131(g).

That Code provides in relevant part that it is:

“unlawful for any person to sell or offer for sale, possess

or use or attempt to use or give away, any toy or imita-

tion pistol or revolver which substantially duplicates an

actual pistol or revolver, unless said imitation or toy pis-

tol or revolver shall be colored in colors other than

black, blue, silver or aluminum. . .” Further, the Code

requires: that “every such toy or imitation pistol or

revolver hereinafter manufactured, distributed, trans-

ported or sold shall have legibly stamped thereon, the

name of the manufacturer or some trade name, mark or

2la

brand by which the manufacturer can be readily identi-

fied.”

The retail distributors, who were included in the action, coop-

erated with the City’s efforts and agreed to remove from their

shelves all toys not in compliance with the Code. Because of

their actions, fewer such guns were sold during the holiday

season lessening, to some extent, the volume of such look

alike weapons in the hands of minors and others, some of

whom were using these guns in the commission of violent

crimes.!

JA-RU is a manufacturer of toy guns and distributor of

them nationally. Its products include an item which the city

alleges violates the Administrative Code. JA-RU, however

contends that their toy gun, specifically, a “KG-9” has a blaze

orange plug recessed no more than 6 millimeters from the

nuzzle end of the barrel, and that this plug brings its product

into compliance with a relevant federal law, 15 U.S.C. Section

5001(b)(1) which was enacted in 1988. That Statute, counsel

for JA-RU argues clearly and expressly preempts the New

York City Code and thus would compel this court to deny the

plaintiff any injunction vis-a-vis their client.

15 U.S.C. Section 5001 reads in relevant part:

(a) ACTS PROHIBITED

It shall be unlawful for any person to manufacture, enter

into commerce, ship, transport or receive any toy, look-alike,

or imitation firearm unless such firearm contains, or has

affixed to it, a marking approved by the Secretary of Com-

merce, as provided in subsection (b).

' An accompanying affidavit from NYC Police Sergeant Dominic

Buccigrossi assigned to the Department’s Ballistic Squad contained the

data that in the past two years, over 2,000 toy guns were confiscated and

in 1992-1993 these toys were used in the commission of numerous seri-

ous crimes, including rape, assault and robbery. Further that the NYPD

has accumulated statistics relating to the use of toy guns in crime and that

during the period from January 1, 1992 through June 30, 1993 the

Department recovered 263 toy guns used or possessed during felonious

assaults and 195 used in robberies.

22a

(b) DISTINCTIVE MARKING FOR TOYS, LOOK-ALIKES,

AND IMITATION FIREARMS, EXCEPTION, WAIVER,

ADJUSTMENTS AND CHANGES

(1) Except as provided in paragraph (2) or (3), each toy,

look-alike, or imitation firearm shall have as an integral part,

permanently affixed, a blaze orange plug asserted in the bar-

rel of such toy, look-alike, or imitation firearm. Such plug

shall be recessed no more than 6 millimeters from the nuzzle

end of the barrel of such firearm.

(2) The Secretary of Commerce may provide for an alter-

nate marking or devise for any toy, look-alike, or imitation

firearm not capable of being marked as provided in paragraph

(1) and may waive the requirement of any such marking or

device for any toy, look-alike or imitation firearm that will

only be used in the theatrical, movie or television industry.

(3) The Secretary is authorized to make adjustments and

changes in the marking system provided for by this section,

after consulting with interested persons.

For the purpose of this section, the term “look-alike

firearm” means any imitation of any original firearm which

was manufactured, designed and produced since 1898, includ-

ing and limited to toy guns, water guns, replica non-guns, and

air-soft guns firing non-metallic projectiles. Such term does

not include any look-alike, non-firing, collector replica of 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.

(g) PREEMPTION OF STATE OR LOCAL LAWS OR

ORDINANCES, EXCEPTIONS

The provisions of this section shall supersede any provision

of State or local laws or ordinances which provide for mark-

ing or identification inconsistent with provisions of this sec-

tion provided that no state shall

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23a

(i) prohibit the sale or manufacture of any lookalike, non-

firing, collector replica of an antique firearm developed prior

to 1898, or

(ii) prohibit the sale (other than prohibiting the sale to

minors) of traditional B-B paint-ball, or pellet-firing air guns

that expel a projectile through the force of air pressure.”

Federal regulations under 15 C.F.R. Section 1150.1-1150.5

were then promulgated putting into effect the above statute.

As to certain legal principles relevant to this discussion,

there should be no dispute. First, that Article VI of the United

State Constitution provides that the laws of the United States

“shall be the Supreme Law of the Land: . . . any thing in the

Constitution or Laws of any state to the contrary notwith-

standing”.

Pursuant to this clause and decisions going back to the

early 1800’s, it is clear that when state law and federal law

conflict, it is the state law that must give way.

However, hand-in-hand with the supremacy doctrine is the

assumption “that the historic police powers of the states are

not to be superseded by Federal Act unless that is the clear

and manifest purpose of Congress” Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230 (1947).

Finally, in light of the strong presumption against pre-

emption of state laws, the courts are obliged to narrowly con-

Strue the precise language of federal statutes to determine

whether the State or local law is in fact preempted. Cipollone

v. Liggett Group, Inc., 112 S. Court 2608 (1992).

In applying these principles to the two laws here involved,

I find that the City’s Administrative Code, Section 10-131(g)

is not in conflict with the Federal law nor did the Congress,

by enacting 15 USC Section 5001 intend to preempt the field

of toy gun regulation.

In the various opinions cited by the parties, the courts have

struck down State and local laws, as preemptive of State reg-

ulatory power only when it was persuasively shown “either

that the nature of the regulated subject matter permits no

other conclusion, or that the Congress has unmistakably so

ordained” Florida Lime and Avocado Growers, Inc. vy. Paul,

83 S. Ct. 1210, 1217 (1993).

24a

Neither is the case here. Section 5001(g) entitled “Pre-

emption of State or Local Laws or Ordinances; Exceptions”,

the clause pointed to by JA-RU to support their argument of

explicit preemption does not compel such a conclusion.

Rather, the words used express the mandate that the statute

only supersedes State or local laws when the latter provide for

markings which are “inconsistent”. Also there are two excep-

tions or absolute prohibitions affecting specific kinds of

firearms (collectors replicas of antiques and traditional B-B,

and other pellet-firing air guns). —

In fact, in the only reported decision specifically inter-

preting Section 5001, a United States District Court in New

Jersey struck down a New Jersey statute finding that it was in

conflict with and thereby preempted by the federal law, Sec-

tion 5001(g) to the extent that the state sought to regulate

B-B, paint-ball or pellet firing air guns which was explicitly

precluded (Coalition of New Jersey Sportsmen v. Florio 744

F. Supp 602 (1990)).

Are the provisions of the New York City Administrative

Code therefore, inconsistent with Federal law? I find that they

are not. First, it is clear that the purpose of both the Federal

Statute and the City Code are similar in that both seek to pre-

vent the marketing of toy guns which can be confused with

real guns.

The defendant may argue that the purpose of the federal

statute is larger than this and includes Congressional desire to

put in place a scheme so comprehensive so as to displace all

state regulations. However, no where in the statute itself, is

that intent expressed.

That is quite different from the policy statements actually

inserted, for example in the 1965 and 1969 Federal Statutes

regulating cigarette labelling discussed in Cipollone v. Liggett

Group, Inc. (supra). There, Section 2 of the 1965 Act explic-

itly declared the statute’s two purposes: 1) to adequately

inform the public that cigarette smoking may be hazardous to

health and 2) to protect the national economy from the burden

imposed by diverse, nonuniform and confusing cigarette

labeling and advertising regulations.

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25a

Still, despite this clearly declared purpose, the 1965

Statute’s Section 5(b)’s words of preemption were given a

narrow construction by the Supreme Court. It found that the

warning to cigarette buyers required in the Act’s Section 4 did

not “by its own effect foreclose additional obliga‘ions

imposed under state law” (pg. 2618). The 1969 statute how-

€ver contained more inclusive language which the court inter-

preted to preempt State causes of action. However, the court

emphasized it was the explicit words of preemption which

counted even when the intent was clearly expressed.

Here, despite some comments and opinions expressed by

various Senators who were sponsoring the federal legislation,

the Congress elected not to declare its intent. And when the

Statute specifically addressed preemption as to non-antique

or B-B type guns, the Congress merely limited it to those

State and local laws “inconsistent with the provisions”.

If New York City precluded toy guns from having any plugs

at all or required the plugs to be in a color other than bright

orange, that would be inconsistent. In other words a manu-

facturer could not make his product simultaneously comply

with both regulations.

However, making a toy gun, red or purple, or yellow or

green and putting a manufacturer’s label on it could simul-

taneously be done by a manufacturer together with the inser-

tion of an orange plug, that is if the manufacturer wanted his

products sold in the New York City market. (See for example,

in this regard the extended discussion of California’s law reg-

ulating avocados found in Florida Lime and Avocado Grow-

ers, Inc. v. Paul, supra).

In considering whether to grant a preliminary injunction, a

court must consider three factors: 1) the movant’s likelihood

of success on the merits; 2) whether irreparable harm may

occur in the absence of such an injunction, and 3) whether the

equities balance in the plaintiff’s favor (see, W.T. Grant v.

Srogi, 52 NY2d 496 (1981).

Here I find that the City meets all three criteria. Based on

the earlier discussion, I find that the relevant Administrative

Code is viable despite the Federal Statute. Therefore, it is

26a

likely that the City will prevail in its efforts to enforce the

Code against JA-RU.

Second, I find that in the absence of an injunction, addi-

tional people living and visiting this City will be victimized

by individuals using these toy guns to facilitate their com-

mission of violent crimes. These toys, after they were con-

fiscated by City officers, were displayed in court. They were

chillingly convincing in their resemblance to real automatic

weapons particularly when, with comparative ease, their

orange plugs were covered by black adhesive.

Do the equities balance in the plaintiff's favor? Absolutely.

A toy gun manufacturer has a right to seek out the lucrative

marketplace of New York City but not at the expense and

peril of the innocent people living here. If children in this

City must play with toy guns, then New York has a right to

make sure they appear to be precisely that.

For all the above reasons, the preliminary injunction

requested by the City is granted and JA-RU’s motion to

declare Administrative Code Section 10-131(g) preempted by

15 U.S.C. Section 5001 is denied.

The foregoing decision constitutes the order of the court.

Dated: April 12, 1994

/s/ ALICE SCHLESINGER

Alice Schlesinger

pa Kod

27a

CHAPTER 76—-IMITATION FIREARMS

Sec. 5001. Penalties for entering into commerce of imitation

firearms.

(a) Acts prohibited.

(b) Distinctive marking for toys, look-alikes,

and imitation firearms, exception; waiver;

adjustments and changes.

(d) Study of criminal misuse of toy, look-alike,

and imitation firearms; report.

(c)' Technical evaluation of marking systems.

(f) Effective date.

(g) Preemption of State or local laws or ordi-

nances; exceptions.

§ 5001. Penalties for entering into commerce of imitation

firearms

(a) Acts prohibited

It shall be unlawful for any person to manufacture, enter

into commerce, ship, transport, or receive any toy, look-alike,

or imitation firearm unless such firearm contains, or has

affixed to it, a marking approved by the Secretary of Com-

merce, as provided in subsection (b) of this section.

(b) Distinctive markings for toys, look-alikes, and imitation

firearms; exception; waiver; adjustments and changes

(1) Except as provided in paragraph (2) or (3), each toy,

look-alike, or imitation firearm shall have as an integral part,

permanently affixed, a blaze orange plug inserted in the bar-

rel of such toy, look-alike, or imitation firearm. Such plug

shall be recessed no more than 6 millimeters from the muzzle

end of the barrel of such firearm.

So in original.

28a

(2) The Secretary of Commerce may provide for an alter-

nate marking or device for any toy, look-alike, or imitation

firearm not capable of being marked as provided in paragraph

(1) and may waive the requirement of any such marking or

device for any toy, look-alike, or imitation firearm that will

only be used in the theatrical, movie or television industry.

(3) The Secretary is authorized to make adjustments and

changes in the marking system provided for by this section,

after consulting with interested persons.

For purposes of this section, the term “look-alike firearm”

means any imitation of any original firearm which was man-

ufactured, designed, and produced since 1898, including and

limited to toy guns, water guns, replica nonguns, and air-soft

guns firing nonmetallic projectiles. Such term does not

include any look-alike, nonfiring, collector replica of 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.

(d) Study of criminal misuse of toy, look-alike, and imitation

firearms; report

The Director of the Bureau of Justice Statistics is autho-

rized and directed to conduct a study of the criminal misuse

of toy, look-alike and imitation firearms, including studying

police reports of such incidences and shall report on such

incidences relative to marked and unmarked firearms.

(c)' Technical evaluation of marking systems

The Director of National Institute of Justice is authorized

and directed to conduct a technical evaluation of the marking

systems provided for in subsection (b) of this section to deter-

mine their effectiveness in police combat situations. The

Director shall begin the study within 3 months after Novem-

So in original. Probably should be “(e)”.

29a

ber 5, 1988 and such study shall be completed within 9

months after November 5, 1988.

(f) Effective date

This section shall become effective on the date 6 months

after November 5, 1988 and shall apply to toy, look-alike, and

imitation firearms manufactured or entered into commerce

November 5, 1988.

(g) Preemption of State or local laws or ordinances: excep-

tions

The provisions of this section shall supersede any provision

of State or local laws or ordinances which provide for mark-

ings or identification inconsistent with provisions of this sec-

tion provided that no State shall—

(i) prohibit the sale or manufacture of any look-alike,

nonfiring, collector replica of an antique firearm devel-

oped prior to 1898, or

(ii) prohibit the sale (other than prohibiting the sale to

minors) of traditional B-B, paint ball, or pellet-firing air

guns that expel a projectile through the force of air pres-

sure.

(Pub.L. 100-615, § 4, Nov. 5, 1988, 102 Stat. 3190.)

Effective Date

Section effective 6 months after Nov. 5, 1988, appli-

cable to toy, look-alike, and imitation firearms manu-

factured or entered into commerce after that date, see

subsec. (f) of this section.

30a

CODE OF FEDERAL REGULATIONS

TITLE 15S—COMMERCE AND FOREIGN TRADE

SUBTITLE B—REGULATIONS RELATING TO COMMERCE

AND FOREIGN TRADE

CHAPTER XI—TECHNOLOGY ADMINISTRATION,

DEPARTMENT OF COMMERCE

PART 1150—MARKING OF Toy, LOOK-ALIKE AND

IMITATION FIREARMS

s 1150.1 Applicability.

This part applies to toy, look-alike, and imitation firearms

(“devices”) having the appearance, shape, and/or configura-

tion of a firearm and produced or manufactured and entered

into commerce on or after May 5, 1989, including devices

modelled on real firearms manufactured, designed, and pro-

duced since 1898. This part does not apply to:

(a) Non-firing collector replica antique firearms, which

look authentic and may be a scale model but are not intended

as toys modelled on real firearms designed, manufactured,

and produced prior to 1898;

(b) Traditional B-B, paint-ball, or pellet-firing air guns that

expel a projectile through the force of compressed air, com-

pressed gas or mechanical spring action, orials standard

F 589-85, Standard Consumer Safety Specification for Non-

Powder Guns, June 28, 1985. This incorporation by reference

was approved by the Director of the Federal Register in

accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies

may be obtained from the American Society for Testing and

Materials, 1916 Race Street, Philadelphia, PA 19103. Copies

may be inspected at the office of the Associate Director for

Industry and Standards, National Institute for Standards and

Technology, Gaithersburg, Maryland, or at the Office of the

Federal Register, 800 North Capitol Street, NW., suite 700,

Washington, DC; and

Sia

the appearance, shape and/or configuration of a firearm,

including those intended to be displayed on a desk or worn on

bracelets, necklaces, key chains, and so on, provided that the

objects measure no more than thirty-eight (38) millimeters in

height by seventy (70) millimeters in length, the length mea-

surement excluding any gun stock length measurement.

[57 FR 48453, Oct. 26, 1992]

s 1150.2 Prohibitions.

No person shall manufacture, enter into commerce, ship,

transport, or receive any toy, look-alike, or imitation firearm

(“device”) covered by this Part as set forth in s 1150.1 of this

part unless such device contains, or has affixed to it, one of

the markings set forth in s 1150.3 of this part, or unless this

prohibition has been waived by s 1150.4 of this part.

Ss 1150.3 Approved markings.

The following markings are approved by the Secretary of

Commerce:

(a) A blaze orange (Federal Standard 595a, February, 1987,

color number 12199, issued by the General Services Admin-

istration) or orange color brighter than that specified by the

federal standard color number, solid plug permanently affixed

to the muzzle end of the barrel as an integral part of the entire

device and recessed no more than 6 millimeters from the muz-

zle end of the barrel. This incorporation by reference was

approved by the Director of the Federal Register in accor-

dance with U.S.C. 552(a) and 1 CFR part 51. Copies of Fed-

eral Standard 595a may be obtained from the Office of

Engineering and Technical Management, Chemical Technol-

ogy Division, Paints Branch, General Services Administra-

tion, Washington, DC 20406. Copies may be inspected at the

Office of the Associate Director for Industry and Standards,

National Institute for Standards and Technology, Gaithers-

32a

burg, Maryland, or at the Office of the Federal Register, 800

North Capitol Street, NW., suite 700, Washington, DC.

(b) A blaze orange (Federal Standard 595a, February, 1987,

color number 12199, issued by the General Services Admin-

istration) or orange color brighter than that specified by the

Federal Standard color number, marking permanently affixed

to the exterior surface of the barrel, covering the circumfer-

ence of the barrel from the muzzle end for a depth of at least

6 millimeters. This incorporation by reference was approved

by the Director for the Federal Register in accordance with

5 U.S.C. 552(a) and 1 CFR part 51. Copies of Federal Stan-

dard 595a may be obtained from the Office of Engineering

and Technical Management, Chemical Technology Division,

Paints Branch, General Services Administration, Washington,

DC 20406. Copies may be inspected at the Office of the Asso-

ciate Director for Industry and Standards, National Institute

for Standards and Technology, Gaithersburg, Maryland, or at

the Office of the Federal Register, 800 North Capitol Street,

NW., suite 700, Washington, DC.

translucent materials which permits unmistakable observation

of the device’s complete contents.

(d) Coloration of the entire exterior surface of the device

in white, bright red, bright orange, bright yellow, bright

green, bright blue, bright pink, or bright purple, either singly

or as the predominant color in combination with other colors

in any pattern.

[57 FR 48454, Oct. 26, 1992]

s 1150.4 Waiver.

The prohibitions set forth in s 1150.2 of this part may be

waived for any toy, look-alike or imitation firearm that will

be used only in the theatrical, movie or television industries.

A request for such a waiver should be made, in writing, to the

Chief Counsel for Technology, United States Department of

Commerce, Washington, DC 20230. The request must include

33a

a sbe used only in the theatrical, movie or television industry.

A sample of the item must be included with the request.

[57 FR 48454, Oct. 26, 1992]

s 1150.5 Preemption.

In accordance with section 4(g) of the Federal Energy Man-

agement Improvement Act of 1988 (15 U.S.C. 5001(g)), the

provisions of section 4(a) of that Act and the provisions of

this part supersede any provision of State or loca! laws or

ordinances which provides for markings or identification

inconsistent with the provisions of section 4 of that Act or the

provisions of this part.

34a

FEDERAL REGISTER / VOL. 57, NO. 207 / MONDAY

OCTOBER 6, 1992 / RULES AND REGULATIONS

DEPARTMENT OF COMMERCE

Technology Administration

15 CFR Part 1150

[Docket No. 910931-2204]

RIN 0692-AAI1

Marketing of Toy, Look-Alike, and Imitation Firearms

AGENCY: Technology Administration, Commerce.

ACTION: Final Rule.

SUMMARY: The Technology Administration of the United

States Department of Commerce is today issuing a final rule

to change regulations pertaining to marking requirements for

toy, look-alike, and imitation firearms. These regulations were

promulgated in May of 1989, and implement section 4 of the

Federal Energy Management Improvement Act of 1988

(“Act”) which prohibits the manufacturing, entering into com-

merce, shipping, transporting, or receipt of any toy, imitation,

or look-alike firearm (“device”) unless such device contains,

or has affixed to it, a marking approved by the Secretary of

Commerce. The Technology Administration published a

notice of a proposed rulemaking to revise the regulations on

November 7, 1991 (56 FR 56953). After consideration of pub-

lic comments received in response to that proposed rule-

making, the Technology Administration is today promulgating

this final rule amending the regulations. It sets out additional

permissible markings, and further defines those devices cov-

ered by the regulation.

DATES: This rule is effective October 26, 1992.

FOR FURTHER INFORMATION CONTACT: Bradford C.

Brown, Chief Counsel for Technology, telephone number

(202) 482-1984, FAX (202) 482-0253.

35a

SUPPLEMENTARY INFORMATION:

Background

On November 7, 1991 the Technology Administration pub-

lished a Notice of Proposed Rulemaking in the Federal Reg-

ister (56 FR 56953) announcing proposed revisions to

regulations found at 15 CFR Part 1150, which implement sec-

tion 4 of the Federal Energy Management Improvement Act of

1988, pertaining to the marking of toy, look-alike, and imi-

tation firearms. The public comment period of 60 days was

subsequently extended to March 17, 1992 in a Federal Reg-

ister notice published on January 17, 1992 (57 FR 2065).

Section 4(a) of the Federal Energy Management Improve-

ment Act of 1988 provides that it shall be unlawful for any

person to manufacture, enter into commerce, ship, transport,

or receive any toy, look-alike, or imitation firearm unless

such firearm contains, or has affixed to it a marking approval

by the Secretary of Commerce. (15 U.S.C. 5001(a)). Section

4(b)(1) of the Act establishes as an initial acceptable marking

a permanently affixed, blaze orange plug inserted in the bar-

rel of the toy, look-alike, or imitation firearm, recessed no

more than 8 millimeters from the muzzle end of the barrel,

and made an integral part of the device. (15 U.S.C.

5001(b)(1)). Section 4(b)(2) authorizes the Secretary to

approve an alternative marking for any toy, look-alike, or imi-

tation firearm not capable of being marked with the requisite

blaze orange plug and to waive the marking requirements for

any toy, look-alike, or imitation firearm that will only be used

in the theatrical, movie or television industries. (15 U.S.C.

5001(b)(2)). Section 4(b)(3) authorizes the Secretary to adjust

or charge the marking system established pursuant to sections

4(b)(1) and (2), after consultation with interested persons. (15

U.S.C. 5001(b)(3)).

In May of 1989 the Technology Administration promul-

gated a regulation found at 15 CFR part 1150, to implement

the Act. That regulation maintained the blaze orange plug

marking established by section 4(b)(1) of the Act and estab-

36a

lished as an alternative marking system for water guns, air-

soft guns, light emitting guns or other ejecting toy, look-alike,

or imitation firearms which, as such, cannot be marked with

a plug in the muzzle end of the barrel because it would

restrict the opening necessary to discharge such things as

water, non-metallic projectiles, and light, a blaze orange

marking permanently affixed to the exterior surface of the

barrel and covering the circumference of the barrel and

extending from the muzzle end for a depth of at least 6 mil-

limeters. Part 1150 also adjusted the statutory marking system

by permitting three other methods of marking for use in the

alternative irrespective of whether the device could be marked

with the blaze orange plug or blaze orange muzzle marking.

The three alternatives were to mark the device at manufacture

by; (1) Constructing it entirely of transparent or translucent

materials which permit unmistakable observation of the

device’s complete contents; (2) permanently coloring the

entire exterior surface of the device bright red, bright orange,

bright yellow, bright green, or bright blue, either singly or as

the predominant color in combination with other colors in any

pattern; or (3) permanently coloring the entire exterior surface

of the device predominantly in white in combination with one

or more of the colors bright red, bright orange, bright yellow,

bright green, or bright blue in any pattern. These alternatives

were selected because they represent standard industry prac-

tice for most toy, look-alike, and imitation firearms and, in

the opinion of those consulted, are sufficient to identify the

device as a toy, look-alike, or imitation firearm rather than as

a real firearm.

Description and Explanation of Proposed Changes

The notice of proposed rulemaking published in November

of 1991 proposed seven changes to 15 CFR part 1150.

First, § 1150.1 was proposed to be amended by restating the

applicability of the regulation to include only those devices

which had the “appearance, shape, and/or configuration of a

firearm”; as originally promulgated, the regulation applied to

37a

devices which had the “general appearance, shape, and/or

configuration of a firearm.” This change was proposed to

remove ambiguity from the regulation. The work “toy” which

appeared in line ten (10) of this section was deleted so as to

conform with 15 U.S.C. 5001.

Second, a definition of “collector replica” was proposed in

order to distinguish between replicas which were intended to

be collectable reproductions and imitation firearms modelled

after antique firearms but not intended to be used as collector

replicas. The distinction was made because collector replicas

are specifically exempted under the regulation whereas toy,

lookalike, or imitation firearms which are not intended to be

used as collector replicas must meet the requirements of the

regulation.

Third, an exception was proposed in § 1150.1 to clarify that

part 1150 was not applicable to “decorative, ornamental, and

miniature objects having the appearance, shape and/of con-

figuration of a firearm, including those intended to be dis-

played on a desk or worn on bracelets, necklaces, key chains,

and so on, provided that the miniatures measure no more than

thirty-eight (38) millimeters in height by seventy (70) mil-

limeters in length.” This change was proposed to remove cer-

tain imitation firearms from the coverage of the rule because

they were so small in size that they could not be mistaken for

real firearms. These particular dimensions were selected

because the Technology Administration, after consulting with

the Bureau of Alcohol, Tobacco and Firearms, was not able to

identify any firearms of lesser size that were capable of func-

tioning as a real gun. Metric units were used to conform with

the Metric Conversion Act.

Fourth, changes were proposed to be made to § 1150.3(a)

and (b) to allow the approved plug or marking at the muzzle

end of the barrel to be either “blaze orange” (Federal Stan-

dard 595a. February, 1987, color number 12199, issued by the

General Services Administration) or an orange color brighter

than that specified by the Federal Standard color number. This

change was proposed to prevent enforcement actions involv-

38a

ing goods that had bright orange markings in keeping with the

intent of the regulation, but did not meet the exact standard

for “blaze orange” set forth in the regulation.

Fifth, a change was proposed to be made to § 1150.3(b) to

remove the requirement that the imitation gun have an open-

ing used to discharge water, nonmetallic projectiles, or light

to get approval for a collar-type marking (§ 1150.3(b)). With

the proposed change, whether or not the gun emitted light,

water, etc., the collar-type marking could be used.

Sixth, several alternative markings were proposed to be

added to the list of approved alternative markings, which

included coloration of the entire exterior surface in white,

bright pink or bright purple. These additional colors were

deemed bright enough that their inclusion in the approved

markings list was appropriate. The alternative markings pro-

vision was also clarified to include colorations of the entire

surface singly or in combination with the approved colors.

Deletion of § 1150.3(e) was proposed in order to eliminate

redundancy.

Finally, an administrative mechanism for the processing of

waiver requests was proposed to be added to § 1150.4 that

waives part 1150 for any toy, look-alike, or imitation firearm

to be used only in the theatrical, movie or television indus-

tries. The proposed mechanism was that requests for waivers

be made, in writing, to the Chief Counsel for Technology,

United States Department of Commerce, and that the request

include a sworn affidavit which stated with specificity the

factual circumstances, and that the toy, look-alike or imitation

firearm was to be used only in the theatrical, movie or tele-

vision industry. It was anticipated that.such a statement would

include the place of manufacture, and a discussion of the

specific use and disposition of the items. As originally pro-

mulgated, part 1150 contained a “self-enforcing” waiver

provision. This approach, however, had proven impractical,

imports of noncompliant toy, look-alike, and imitation

firearms were routinely prevented at the port of entry by the

U.S. Customs Service.

39a

The Technology Administration held a public meeting at

the Greater Los Angeles World Trade Center on the proposed

amendments and changes to the safety marking system for

toy, look-alike, and imitation firearms on December 2, 1991

(56 FR 57869 Nov. 14, 1991). The meeting was attended by a

number of representatives of trade associations, manufac-

turers, importers, distributors and Federal Agencies. Many

attenders brought samples of toy, look-alike, or imitation

firearms. Most of the pertinent comments made at this meet-

ing are reflected in the written comments received in response

to the notice of proposed rulemaking.

Analysis of Comments Received

In response to the November 7, 1991 Notice of Proposed

Rulemaking the Technology Administration received com-

ments from six manufacturers, vendors, or their representa-

tives or attorneys. None of the commenters fully supported all

of the proposed changes and each commenter made recom-

mendations with respect to the proposed changes.

The four main comments regarding the proposed changes

were first, the term “collector replica” was not properly

defined; second, the miniature size requirements were too

restrictive; third, the colors and coloration were not clearly

defined and fourth, the waiver process was overly burden-

some. The first and second issues were each raised by four

commenters, the third issue by three commenters and the

fourth issue by two commenters.

The fourth comments received on the “collector replica”

definition in § 1150.1 took issue with toys being excluded

from the definition. Their position was that the pre-1898

dated in 15 U.S.C. 5001(c) defined the term “collector

replica” and that a toy modelled after any original firearm

which was manufactured, designed, and produced prior to

1898 should also be exempted from the regulation. The

statute, however, exempts only look-alike, nonfiring, collector

replicas modelled on antique firearms developed prior to 1898

from the requirement and does not explicitly exempt toys,

40a

look-alike, or imitation firearms that are not “collector repli-

cas.” Support for this interpretation of “collector replica” is

present in the Congressional Record (134 Cong. Rec. H10072

(daily ed. October 11, 1988)) in which Congressman Moor-

head states that the marking requirement would not apply to

manufacturers who produced replicas which resemble pre-

1898 firearms, “the realistic look of the object and whose

expensive replicas are almost never involved in crimes or

accidental shootings by the police.” As a result of this clear

statutory guidance and legislative history, the definition of

“collector replica” in the final rule is adopted as proposed.

Four comments specifically addressed the miniature size

exemption in § 1150.1(c). The toy manufacturers, importers,

vendors and their representatives argued that the size limit of

38 millimeters in height by 70 millimeters in length was too

narrow of an exemption. Their position was that the relative

size of the miniature to the original gun size is key to the

perception of a working firearm and that the measurements

specified in the proposed changes were arbitrary. The 38 mil-

limeter by 70 millimeter dimensions were selected because

the Technology Administration, after consultation with the

Bureau of Alcohol, Tobacco and Firearms, had not identified

any firearms of lesser size that were capable of functioning as

real guns. Arguments by the commenters addressing toy, look-

alike, or imitation guns with stocks such as rifles, shot guns,

and machine guns were also considered and since the stock is

not part of the firing mechanism, language dealing with

miniature guns with stocks has been added to the final rule.

The term “miniatures” in line 7 of this section in the proposed

rule has been changed to “objects” so that the applicability of

this section to decorative and ornamental miniatures is clar-

ified. The rest of the proposed changes to this section remain

the same in the final rule.

The third class of comments received dealt with colors

which appear in § 1150.3(c). One comment addressed the sub-

jective “brightness” standard of the colors and two comments

addressed the combination of the specified colors. The com-

4la

menter who was concerned with the brightness standard sug-

gested the use of pantone colors, which the commenter stated

is the accepted coloring norm in almost every industry. He

went on to explain that a list of acceptable shades or brighter

shades for a particular color could be used as the standard.

After considering these comments, the Technology Admin-

istration, however, believes that such an exact list of colors is

too restrictive and that the subjective standard for bright used

in this section allows for flexibility in enforcement of the reg-

ulation. The other concern expressed regarding color was that

the proposed regulation provided for coloration of the device

in the listed colors “either singly or in combinations of these

colors in any pattern”, thus restricting the colors to be used to

only those enumerated in the regulation. The original regu-

lations provided for coloration of the device in the listed col-

ors “either singly or as the predominant color in combination

with other colors in any pattern.” It is the Technology Admin-

istration’s opinion that having the device’s surface predom-

inantly colored in the listed colors is sufficient to distinguish

a toy gun from a real gun. This change in the coloration pol-

icy of having the coloration be predominantly rather than only

the approved listed colors is reflected in the final rule.

The fourth category of comments addressed the waiver pro-

cess as provided for in § 1150.4. Two commenters argued that

the detailed waiver procedure set forth in the proposed reg-

ulations could be required more than once for a particular

item: that is, each time a person manufactured, entered into

commerce, shipped, transported or received a look-alike

firearm to be used in the theatrical, movie or television indus-

try. It is, however, the Technology Administration's position

that once a waiver has been provided and approved, this

waiver would be sufficient for all levels of commerce. A sec-

ond related issue argued by the commenters regarding this

section of the proposed regulations was that the specific fac-

tual circumstances requirement for the items listed in the affi-

davit was overly burdensome. The specificity requirement has

therefore been removed from the final regulation so that only

42a

a general affidavit swearing to the fact that the toy, look-

alike, or imitation firearm will be used only in the theatrical,

movie or television industry is ee

Additional Information

The final rule sets out additional permissible markings, and

further defines those devices covered by the regulation.

Accordingly, since the rule thus grants or recognizes an

exemption and relieves restrictions, under section 553(d) of

the Administrative Procedure Act (5 U.S.C. 553(d)) it may

and is being made effective without a 30-day delay in effec-

tive date.

Executive Order 12291

The Under Secretary for Technology has determined that

this rule is not a major rule within the meaning of section 1(b)

of Executive Order 12291 because it will not result in:

(1) An annual effect on the economy of $100 million or

more;

(2) A major increase in costs or prices for consumers, indi-

vidual industries, Federal, state or local government agencies

or geographic regions; or

(3) Significant adverse effects on competition, employment,

investment, productivity, innovation, or on the ability of U.S.-

based enterprises to compete with foreign-based enterprises

in domestic or export markets.

Therefore, preparation of a Regulatory Impact Analysis is

not required under Executive Order 12291.

Executive Order 12612

This rule does not contain policies with Federalism impli-

cations sufficient to warrant preparation of a Federalism

assessment under Executive Order 12612.

43a

Executive Order 12372

This rule does not involve Federal financial assistance,

direct Federal development, or the payment of any matching

funds from a state or local government. Accordingly, the

requirements of Executive Order 12372 are not applicable to

this rule.

Executive Order 12630

This rule does not pose significant takings implications

within the meaning of Executive Order 12630.

Regulatory Flexibility Act

The General Counsel of the Department of Commerce cer-

tified to the Chief Counsel for Advocacy of the Small Busi-

ness Administration when this rule was proposed that if the

rule was adopted, it would not have a significant economic

impact on a substantial number of small entities because the

alternative markings conform to existing industry practices

for most toy, look-alike, and imitation firearms, thus reduc-

ing the rule’s impact to only where such practices are not fol-

lowed. As a result, a Regulatory Flexibility Analysis was not

required to be prepared under the Regulatory Flexibility Act.

Paperwork Reduction Act

This rule does not contain information collection require-

ments subject to the Paperwork Reduction Act.

National Environmental Policy Act

This rule will not significantly affect the quality of the

human environment. Therefore, an environmental assessment

or Environmental Impact Statement is not required to be pre-

pared under the National Environment Policy Act of 1969.

44a

List of Subjects in 15 CFR Part 1150

Commerce, Business and industry, Labeling, Hobbies,

Imports, Exports, Shipping, Toys, Transportation, Freight,

Incorporation by reference.

Dated: October 19, 1992

Robert M. White

Under Secretary for Technology

For reasons set forth in the preamble, title 15, subtitle B.

chapter XI, part 1150 of the Code of Federal Regulations is

amended as follows:

CHAPTER XI—TECHNOLOGY ADMINISTRATION,

DEPARTMENT OF COMMERCE

PART 1150—MARKING OF TOY, LOOK-ALIKE

AND IMITATION FIREARMS

1. The authority citation for part 1150 continues to read as

follows:

Authority: Section 4 of the Federal Energy Management

Improvement Act of 1983, 15 U.S.C. 5001.

2. Section 1150.1 is revised to read as follows:

§ 1150.1 Applicability

This part applies to toy, look-alike, and imitation firearms

(“devices”) having the appearance, shape, and/or configura-

tion of a firearm and produced or manufactured and entered

into commerce on or after May 5, 1989, included devices

modelled on real firearms manufactured, designed, and pro-

duced since 1898. This part does not apply to:

(a) Non-firing collector replica antique firearms, which

look authentic and may be a scale model but are not intended

as toys modelled on real firearms designed, manufactured,

and produced prior to 1898:

45a

(b) Traditional B-B, paint-ball, or pellet-firing air guns that

expel a projectile through the force of compressed air, com-

pressed gas or mechanical spring action, or any combination

thereof, as described in American Society for Testing and

Materials standard F589-85, Standard Consumer Safety Spec-

ification for Non-Powder Guns, June 28, 1985. This incor-

poration by reference was approved by the Director of the

Federal Register in accordance with 5 U.S.C. 552(a) and

1 CFR part 51. Copies may be obtained from the American

Society for Testing and Materials, 1916 Race Street, Philadel-

phia, PA 19103. Copies may be inspected at the office of the

Associate Director for Industry and Standards, National Insti-

tute for Standards and Technology, Gaithersburg, Maryland,

or at the Office of the Federal Register, 800 North Capitol

Street, NW, suite 700, Washington, DC; and

the appearance, shape and/or configuration of a firearm,

including those intended to be displayed on a desk or worn on

bracelets, necklaces, key chains, and so on, provided that the

objects measure no more than thirty-eight (38) millimeters in

height by seventy (70) millimeters in length, the length mea-

surement excluding any gun stock length measurement.

3. Section 1150.3 is amended by removing paragraph (e)

and by revising paragraphs (a), (b), and (d) to read as follows:

§ 1150.3 Approved markings.

The following markings are approved by the Secretary of

Commerce:

(a) A blaze orange (Federal Standard 595a, February, 1987,

color number 12199, issued by the General Services Admin-

istration) or orange color brighter than that specified by the

federal standard color number, solid plug permanently affixed

to the muzzle end of the barrel as an integral part of the entire

device and recessed no more than 6 millimeters from the muz-

zle end of the barrel. This incorporation by reference was

approved by the Director of the Federal Register in accor-

46a

dance with U.S.C. 552(a) and 1 CFR part 51. Copies of Fed-

eral Standard 595a may be obtained from the Office of Engi-

neering and Technical Management, Chemical Technology

Division, Paints Branch, General Services Administration,

Washington, DC 20406. Copies may be inspected at the office

of the Associate Director for Industry and Standards, National

Institute for Standards and Technology, Gaithersburg, Mary-

land, or at the Office of the Federal Register, 800 North Capi-

tol Street, NW, suite 700, Washington, DC.

(b) A blaze orange (Federal Standard 595a, February 1987,

color number 12199, issued by the General Services Admin-

istration) or orange color brighter than that specified by the

Federal Standard color number, marking permanently affixed

to the exterior surface of the barrel, covering the circumfer-

ence of the barrel from the muzzle end for a depth of at least

6 millimeters. This incorporation by reference was approved

by the Director for the Federal Register in accordance with 5

U.S.C. 552(a) and 1 CFR, part 51. Copies of Federal Standard

595a may be obtained from the Office of Engineering and

Technical Management, Chemical Technology Division,

Paints Branch, General Services Administration, Washington,

DC 20406. Copies may be inspected at the office of the Asso-

ciate Director for Industry and Standards, National Institute

for Standards and Technology, Gaithersburg, Maryland, or at

the Office of the Federal Register, 800 Nort Capitol Street,

NW, suite 700, Washington, DC.

(d) Coloration of the entire exterior surface of the device in

white, bright red, bright orange, bright yellow, bright green,

bright blue, bright pink, or bright purple, either singly or as

the predominant color in combination with other colors in any

pattern.

4. Section 1150.4 is revised to read as follows:

Ped

47a

§ 1150.4 Waiver.

The prohibitions set forth in § 1150.2 of this part may be

waived for any toy, look-alike or imitation firearm that will

be used only in the theatrical, movie or television industries.

A request for such a waiver should be made, in writing, to the

Chief Counsel for Technology, United States Department of

Commerce, Washington, DC 20230. The request must include

a sworn affidavit which states that the toy, look-alike, or imi-

tation firearm will be used only in the theatrical, movie or

television industry. A sample of the item must be included

with the request.

*« * *

FEDERAL REGISTER / VOL. 54, NO. 86 /

FRIDAY MAY 5, 1989

Technology Administration

15 CFR Part 1150

[Docket No. 90248-9104]

Marking of Toy, Look-Alike and Imitation Firearms

AGENCY: Technology Administration, Commerce.

ACTION: Final rule.

SUMMARY: The Technology Administration of the United

States Department of Commerce is today issuing a final rule

to implement section 4 of the Federal Energy Management

Improvement Act of 1988 (“Act”) (Pub. L. 100-815) which

prohibits the manufacturing, transporting, or receipt of any

toy, imitation or look-alike firearm (“device”) unless such

device contains, or has affixed to it, a marking approved by

the Secretary of Commerce. The final rule maintains the

method of marking established by section 4(b)(1) of the Act

and establishes an alternative method of marking when a

device is not capable of being marked by the method estab-

lished by section 4(b)(1) and three alternative methods of

marking which may be used in all instances. In addition, the

48a

rule waives marking requirements for any toy, look-alike, or

imitation firearm that will be used only in the theatrical,

movie, or television industries.

DATE: This rule is effective May 5, 1989. The incorporation

by reference cf certain publications listed in the regulations

is approved by the Director of the Federal Register as of May

5, 1989.

FOR FURTHER INFORMATION CONTACT: Dr. Stanley I.

Warshaw, Associate Director for Industry and Standards,

National Institute of Standards and Technology, telephone

number (301) 975-4000, FAX (301) 926-0647.

SUPPLEMENTARY INFORMATION: Section 4(a) of the

Federal Energy Management Improvement Act of 1988 pro-

vides that “it shall be unlawful for any person to manufacture,

enter into commerce, ship, transport, or receive any toy, look-

alike, or imitation firearm unless such firearm contains, or has

affixed to it, a marking approved by the Secretary of Com-

merce * * *” (15 U.S.C. 5001(a).) Section 4(b)(1) of the Act

establishes as an initial acceptable marking a permanently

affixed, blaze orange plug inserted in the barrel of the toy,

look-alike, or imitation firearm, recessed no more than 6 mil-

limeters from the muzzle end of the barrel, and made an inte-

gral part of the device. (15 U.S.C. 5001(b)(1).) Section

4(b)(2) authorizes the Secretary to approve an alternative

marking for any toy, look-alike, or imitation firearm not capa-

ble of being marked with the requisite blaze orange plug, and

to waive the marking requirements for any toy, look-alike, or

imitation firearm that will only be used in the theatrical,

movie, or television industries. (15 U.S.C. 5001(b)(2).) Sec-

tion 4(b)(3) authorizes the Secretary to adjust or change the

marking system established pursuant to sections 4(b)(1) and

(2), after consultation with interested persons. (15 U.S.C.

5001(b)(3).)

The Technology Administration held a public workshop at

the National Institute of Standards and Technology on Febru-

ary 9, 1989, on the marking requirements of the Act. (See 53

49a

FR 50987, Dec. 19, 1988.) The workshop was attended by

forty representatives of trade associations, manufacturers,

importers, distributors and Federal Agencies. Many attendees

brought samples of toy, look-alike or imitation firearms.

Aithough not requested, written comments were received in

advance and subsequent to the workshop.

Based on the comments received and consultations at the

workshop and elsewhere with trade associations, manufac-

turers, importers, distributors, retailers, police chiefs, and

Federal Agencies, the Under Secretary for Technology pub-

lished a Notice of Proposed Rulemaking in the Federal Reg-

ister on March 14, 1989 (54 FR 10550). The notice proposed

to maintain the blaze orange plug marking established by sec-

tion 4(b)(1) of the Act and establish as an alternative marking

system for water guns, air-soft guns, light emitting guns or

other ejecting toy, look-alike or imitation firearms which, as

such, cannot be marked with a plug in the muzzle end of the

barrel because it would restrict the opening necessary to dis-

charge such things as water, non-metallic projectiles, and

light, a blaze orange marking permanently affixed to the exte-

rior surface of the barrel and covering the circumference of

the barrel and extending from the muzzle end for a depth of at

least 6 millimeters. The notice also proposed to adjust the

statutory marking system by permitting three other methods

of marking for use in the alternative irrespective of whether

’ the device could be marked with the blaze orange plug or

blaze orange muzzle marking. The three alternatives proposed

were’to mark the device at manufacture by:

(1) Constructing it entirely of transparent or translucent

materials which permit unmistakable observation of the

device’s complete contents; (2) permanently coloring the

entire exterior surface of the device bright red, bright orange,

bright, yellow, bright green, or bright blue either singly or as

the predominant color in combination with other colors in any

pattern; or (3) permanently coloring the entire exterior surface

of the device predominantly in white in combination with one

or more of the colors bright red, bright orange, bright, yellow,

50a

bright green, or bright blue in any pattern. These alternatives

were selected because they represent standard industry prac-

tice for most toy, look-alike and imitation firearms and in the

opinion of those consulted, are sufficient to identify the

device as a toy, look-alike or imitation firearm rather than as

a real firearm. Finally, the notice proposed to waive marking

requirements for any toy, look-alike or imitation firearm

that will only be used in the theatrical, movie or television

industries.

Section 4(c) of the Act specifically excludes from the Act’s

marking requirements or any marking requirements or any

marking requirements established thereunder look-alike, non-

firing, collector replicas of antique firearms designed, man-

ufactured, and produced prior to 1898, and traditional B-B,

paint-ball, or pellet-firing air guns that expel a projectile

through the force of air pressure. (15 U.S.C. 5001(c).) How-

ever, it is clear from the legislative history of section 4 that it

was the intent of Congress to also exclude from marking

requirements traditional B-B, piant-ball, and pellet-firing air

guns that expel a projectile through the force of compressed

gas or mechanical spring action, or a combination thereof.

Accordingly, the notice proposed to exclude from marking

requirements look-alike, non-firing, collector replicas of

antique firearms designed, manufactured, and produced prior

to 1898, and traditional B-B, paint-ball, or pellet-firing air

guns that expel a projectile through the force of compressed

air, compressed gas or mechanical spring action, or any com-

bination thereof.

In response to the March 14, 1989 Notice of Proposed

Rulemaking, the Technology Administration received twenty-

eight comments, five from manufacturers, vendors, or their

representatives or attorneys; ten from police officials at var-

ious levels of government; four from State legislators and

executive officials; seven from interested members of the

public; and two from elements of the U.S. Government. Eight

of the commenters fully supported the regulation, thirteen

supported the regulation but recommended changes, four took

Sla

the position that a total ban on realistic toy guns was neces-

sary and therefore opposed the regulation as too weak, and

three took no position.

The two most frequent comments about the regulation were,

first, that the marking requirements should be changed to

eliminate the recessed orange plug as an acceptable <uarking,

and second, that a complete ban on realistic toy guns was

needed. Eight commenters raised the first issue and five

raised the second. No changes are being made to the regula-

tions at this time as a result of either comment. The Tech-

nology Administration is awaiting the results of a study by

the Director of the National Institute of Justice, mandated by

section 4(e) of the Act, before deciding whether to remove the

recessed orange plug as an acceptable marking. That study is

a technical evaluation of the marking system established by

the Act and of the alternative marking systems being imple-

mented by this regulation. The Act requires that study to be

completed within nine months of enactment, or no later than

August 5, 1989. With respect to the comments requesting a

complete ban on realistic toy guns, the Secretary of Com-

merce has no authority under the Act to take such action.

Other commnents received are described below, listed by

commenter. An.ong the five manufacturers, vendors, and their

representati‘es, all generally supported the methods of mark-

ing contained in the proposed regulation. However, three

requested changes in § 1150.1 “Applicability” of the regula-

tion to make clear the intent of Congress that the regulation

did not apply to toy, look-alike or imitation firearms that are

non-firing replicas of an antique firearm modeled on a real

firearm designed, manufactured, and produced prior to 1989.

The final regulation has been revised to accommodate this

request. One commenter requested an exemption from the

regulations for airguns and look-alike guns marketed to the

adult buyer; another commenter requested that section 1150.5,

dealing with preemption of marking requirements by state and

local governments, be strengthened. These requested changes

have not been made, because the Secretary of Commerce has

no authority under the Act to make the requested changes.

52a

Among the ten police officials, all generally supported the

proposed regulation, although as discussed above, six of the

ten questioned the effectiveness of a recessed orange plug

without additional marking. In addition, five of the ten com-

menters suggested the inclusion of BB guns and the like under

the scope of the regulation. Because the exclusion of BB guns

is statutorily mandated by section 4(c) of the Act, the

requested change was not made.

Four comments were received from representatives of state

governments, three supporting the regulation and one oppos-

ing it. The Consumer Protection Board of one state fully sup-

ported the regulation, as did the Department of Human

Resources of a second state. The Consumer Council of a state

Department of Agriculture supported the alternative marking

schemes, but questioned the utility of the recessed blaze

orange plug, recommending elimination of that method of

marking. One state Senator opposed the regulation, strongly

supporting in its place a total ban on toy guns and look-alikes.

Seven comments were received from the general public,

four generally supporting the regulation and three preferring

a total ban on toy guns and look alikes. Finally, materials

were received from Senator Cranston of California and the

National Institute of Justice, neither of which specifically

commented on the regulation.

The final rule repeats the blaze orange plug method of

marking established by the Act and repeats the preemption set

forth in the statute. In all other respects it grants waivers and

allows less restrictive methods of marking. Accordingly, since

the rule thus grants or recognizes an exemption and relieves

restrictions, under section 553(d) of the Administrative Pro-

cedure Act (5 U.S.C. 553(d)) it may and is being made effec-

tive without a 30 day delay in effective date.

53a

FEDERAL REGISTER / VOL. 54, NO. 86 / FRIDAY

MAY 5, 1989 / RULES AND REGULATIONS

CHAPTER XI—TECHNOLOGY ADMINISTRATION,

DEPARTMENT OF COMMERCE

PART 1150—MARKING OF TOY, LOOK-ALIKE

AND IMITATION FIREARMS

Sec.

1150.1 Applicability.

1150.2 Prohibitions.

1150.3 Approved markings.

1150.4 Waiver.

1150.5 Preemption.

Authority: Section 4 of the Federal Energy Management

Improvement Act of 1966, 15 U.S.C. 5001.

§ 1150.1 Applicability.

This part applies to toy, look-alike and imitation firearms

(“devices”) having the general appearance, shape, and/or con-

figuration of a firearm and produced or manufactured and

entered into commerce on or after May 5, 1989, including

devices modelled on real firearms manufactured, designed,

and produced since 1896. This part does not apply to any toy,

look-alike, or imitation firearm that is a non-firing replica of

an antique firearm modelled on a real firearm designed, man-

ufactured, and produced prior to 1898, nor to traditional B-B,

paint-ball, or pellet-firing air guns that expel a projectile

through the force of compressed air, compressed gas or

mechanical spring action, or any combination thereof, as

described in American Society for Testing and Materials stan-

dard F 589-85, Standard Consumer Safety Specification for

Non-Powder Guns, June 28, 1985. This incorporation by ref-

erence was approved by the Director of the Federal Register

in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51.

Copies may be obtained from the American Society for Test-

ing and Materials, 1916 Race Street, Philadelphia, Pa. 19103.

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Copies may be inspected at the office of the Associate Direc-

tor for Industry and Standards, National Institute for Stan-

dards and Technology, Gaithersburg, Maryland, or at the

Office of the Federal Register, 1100 L Street, NW, Room

8401, Washington, DC.

§ 1150.2 Prohibitions.

No person shall manufacture, enter into commerce, ship,

transport, or receive any toy, look-alike, or imitation firearm

(“device”) covered by this Part as set forth in § 1150.1 of this

part unless such device contains, or has affixed to it, one of

the markings set forth in § 1150.3 of this part, or unless this

prohibition has been waived by § 1150.4 of this part.

§ 1150.5 Approved markings.

The following markings are approved by the Secretary of

Commerce:

(a) A blaze orange (Federal Standard 595a, February,

1987, color number 12198, issued by the General Services

Administration) solid plug permanently affixed to the muzzle

end of the barrel as an integral part of the entire device and

recessed no more than 6 millimeters from the muzzle end of

the barrel. This incorporation by reference was approved

by the Director of the Federal Register in accordance with

5 U.S.C. 552(a) and 1 CFR Part 51. Copies of Federal Stan-

dard 595a may be obtained from the Office of Engineering

and Technical Management, Chemical Technology Division,

Paints Branch, General Services Administration, Washington

DC 20406. Copies may be inspected at the office of the Asso-

ciate Director for Industry and Standards, National Institute

for Standards and Technology, Gaithersburg, Maryland, or at

the Office of the Federal Register, 1100 L Street, NW, Room

8401, Washington DC.

(b) For any water gun, air-soft gun, light-emitting gun or

other ejecting toy, look-alike or imitation firearm having an

opening to discharge such things as water, non-metallic pro-

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jectiles, and light, a blaze orange (Federal Standard 595a,

February, 1987, color number 12199, issued by the General

Services Administration) marking permanently affixed to the

exterior surface of the barrel, covering the circumference of

the barrel from the muzzle end for a depth of at least 6 mil-

limeters. This incorporation by reference was approved by the

Director of the Federal Register in accordance with 5 U.S.C.

552(a) and 1 CFR Part 51. Copies of Federal Standard 595a

may be obtained from the Office of Engineering and Techni-

cal Management, Chemical Technology Division, Paints

Branch, General Services Administration, Washington, DC

20406. Copies may be inspected at the office of the Associate

Director for Industry and Standards, National Institute for

Standards and Technology, Gaithersburg, Maryland, or at the

Office of the Federal Register, 1100 L Street, NW, Room

8401, Washington, DC.

translucent materials which permits unmistakable observation

of the device’s complete contents.

(d) Coloration of the entire exterior surface of the device in

bright red, bright orange, bright yellow, bright green, or

bright blue, either singly or as the predominant color in com-

bination with other colors in any pattern.

(e) Coloration of the entire exterior surface of the device

predominantly in white in combination with one or more of

the colors bright red, bright orange, bright yellow, bright

green, or bright blue in any pattern.

§ 1150.4 Waiver.

The prohibitions set forth in § 1150.2 of this part are

waived for any toy, look-alike or imitation firearm that will

be used only in the theatrical, movie or television industries.

§ 1150.5 Preemption.

In accordance with section 4(g) of the Federal Energy Man-

agement Improvement Act of 1988 (15 U.S.C. 5001(g)), the

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provisions of section 4(a) of that Act and the provisions of

this part supersede any provision of State or local laws or

ordinances which provides for markings or identification

inconsistent with the provisions of section 4 of that Act or the

provisions of this part.

CHAPTER 1—PUBLIC SAFETY § 10-131

(g) To possess or carry any instrument or device to dis-

charge or emit such gas or liquid ....... ....... Five dollars

f. Violations. Except as is otherwise specifically provided

in this section, any person who shall wilfully violate any of

the provisions of this section shall, upon conviction, be pun-

ished by a fine of not more than fifty dollars, or by impris-

onment not exceeding thirty days, or by both such fine and

imprisonment.

g. It shall be unlawful for any person to sell or offer for

sale, possess or use or attempt to use or give away, any toy or

imitation pistol or revolver which substantially duplicates an

actual pistol or revolver, unless said imitation or toy pistol or

revolver shall be colored in colors other than black, blue, sil-

ver or aluminum, and further provided that the barrel of said

toy or imitation pistol or revolver shall be closed with the

Same material of which the toy or imitation pistol or revolver

is made for a distance of not less than one-half inch from the

front end of said barrel. However, the possession or display of

such instrument by a manufacturer or dealer, shall not be a

violation of this section if sale is accompanied by delivery to

a point without the city, and possession for such purpose

by a manufacturer or dealer shall not be unlawful. Every

such toy or imitation pistol or revolver hereinafter manufac-

tured, distributed, transported or sold shall have legibly

stamped thereon, the name of the manufacturer or some trade

name, mark or brand by which the manufacturer can be read-

ily identified.

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However, possession or use of any toy or imitation pistol or

revolver shall not be a violation of this section, where such

possession or use is for or in the production of television pro-

grams or theatrical or motion picture presentations.

Any person who shall violate this subdivision shall be

guilty of a misdemeanor, punishable by a fine of not more

than one thousand dollars ($1,000) or imprisonment not

exceeding one (1) year, or both.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.