The New Vocabulary of Compliance

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In the past six months, manufacturers of firearms and ammunition have seen a highly volatile political environment give rise to the enactment of new laws.  Out of hundreds of bills proposed across the country, the four states that have enacted laws with a significant industry impact are Colorado, Connecticut, Maryland, and New York.  Whether you conduct business in one of these states or not, it is to your advantage to examine several aspects of these new laws relative to your compliance programs. 
All four of the enacted bills are available to our subscribers in the on-line Orchid Advisors research library.  Simply sign in, click on the pertinent state, and then click on the bill.  Each bill is shown as enacted, along with our Orchid Advisor’s “Manufacturer’s Table of Contents” to highlight various provisions specifically impacting manufacturing.  Also in the archive are the on-line roundtables from February 28, 2013 on the current political environment facing manufacturers and from June 20, 2013 on the new laws in CO, CT, MD, and NY.
The place to start with the new legislation is the definitions sections.  Here, you’ll see a departure from the standard verbiage of federal firearms compliance.  CT, MD, and NY all adopted new vocabulary words reflective of the political environment in which the statutes were signed into law.  Maryland, for example, now defines the “assault weapon,” including the “assault long gun,” and “the assault pistol.”  Connecticut and New York likewise adopted vocabulary of “assault weapon,” with Connecticut also adding “deadly weapon.”
Used by themselves, these words don’t have meaning.  The federal 1994 Assault Weapon Ban expired 10 years later, leaving the legislative field without active term definitions.  These words do not appear in other current federal legislation, such as the Gun Control Act of 1968 or its implementing regulations.
What this means for manufacturers is that the definitions of each individual firearm, characteristic, and accessory contained within each state statute is important to identify and learn.  Not all terms are defined within the statutes of the state using the term.  And, the same word can have a different meaning from one state to the next. 
First, look at the type of firearm involved in the definition.  For example, Maryland’s definition of an “assault weapon” starts with “A semiautomatic centerfire rifle that can accept a detachable magazine,” while New York’s begins with “A semiautomatic rifle,” and Connecticut begins its comparable section with “specified semiautomatic centerfire rifles” and goes on to list them by manufacturer and model. {MD Criminal Law §4-301; NY Penal Law §265.00; CT General Statutes §53-202b.}
Second, look for any technical specifications that will clearly delineate what is permitted and not.  Continuing with this same example, the features Maryland associates with the firearm specified above are (1) a folding stock; (2) a grenade launcher or flare launcher; or, (3) a flash suppressor.  New York starts with a different firearm word, includes all of the features listed in the MD statute, but then adds a lengthy list of additional features that would cause such a firearm to be prohibited, including, but not limited to a telescoping stock, a muzzle break, a thumbhole stock, and a second handgrip. {Id.}
Third, check the lists of specific firearms by manufacturer and model.  Both Maryland and Connecticut prohibit dozens of firearms.  The challenge is the soft language within the statute around the enumerated firearms, such as “similar,” “copies,” or “with the capability of.” 
These catch-all phrases in the new legislation are a challenge for manufacturers.  How similar is similar?  Close enough to create a patent violation claim?  Sufficiently similar to be indistinguishable to the average consumer in the marketplace?  Just enough that you bought the competitor’s product and had it reverse engineered?
What we’re really talking about is an evolution in our approach to compliance that will represent both a shift in our interaction with our compliance team, as well as some tough decision-making in the boardroom.  For our compliance team, the approach will have to take on a new rigor as we start with an identification of the words used in each state and create comparison charts of each state against the other, as well as against federal.  This same discipline will then have to penetrate communication with government officials to ensure that everyone is speaking the same language.
It will also mean that the boardroom will end up having to make judgment calls.  When compliance vocabulary is technical specifications and specific firearm lists, compliance can be a bright line exercise.  But, when the language becomes subjective, even good faith analysis and decision-making could be called into question.
As we explained in our February 28, 2013 roundtable, the current political environment facing manufacturers is “extremely volatile.”  If there is a phrase to characterize the four new pieces of legislation to emerge within this political environment, it is “unsettled.”  The persistent tension between federal and state governments under the Second Amendment around firearms and ammunition is now at the center of our compliance concerns.
Please be welcomed to contact us to engage in this and other topics of conversation facing manufacturers of firearms and ammunition.  We look forward to working with you to help you meet your compliance needs and objectives.