1
EXHIBIT 10.16
SETTLEMENT AGREEMENT
PREAMBLE
Xxxxx & Wesson Corp., ("Xxxxx & Wesson"), the City of Boston, and the Boston
Public Health Commission enter into this Agreement to reduce the criminal misuse
of firearms, combat the illegal acquisition, possession, and trafficking of
firearms, reduce the incidence of firearms accidents, and educate the public on
the safe handling and storage of firearms. Furthermore, Xxxxx & Wesson enters
into this Agreement as a continuation of its efforts to make its firearms as
safe as practicable for its customers and the public. Accordingly, in
consideration of the commitments set forth below, the City of Boston and the
Boston Public Health Commission dismiss Xxxxx & Wesson with prejudice from the
lawsuit entitled The City of Boston, et al. x. Xxxxx & Wesson Corp., et al.,
Civil Action No. SUCV1999-02590-C subject to any consent orders entered pursuant
to paragraph VII.
The parties agree that this Agreement constitutes the full and complete
settlement of any and all claims that were raised or could have been raised in
the subject litigation. The parties agree further that this Agreement does not
constitute an admission of any violation of law, rule, or regulation by Xxxxx &
Wesson or any of its employees. Nothing in this Agreement shall be construed to
be an admission of liability. The adoption of standards for firearms design and
distribution in this Agreement shall not be construed as an admission by Xxxxx &
Wesson that practices it engaged in prior to the execution of this Agreement
were negligent.
I. SAFETY AND DESIGN OF XXXXX & WESSON FIREARMS.
A. STANDARDS. Each firearm make and model sold by Xxxxx & Wesson shall
be tested against the following standards by a proofing entity
selected by a government regulator that is designated by the City of
Boston and the Boston Public Health Commission, or if no such
selection is made, by ATF. Existing makes and models shall meet
these standards within 60 days of execution of this Agreement unless
a longer period is specified in the standard. New makes and models
shall not be manufactured and sold after the execution of this
Agreement unless they conform to these standards.
1. STANDARDS APPLICABLE TO ALL HANDGUNS.
a. SECOND "HIDDEN" SERIAL NUMBER. The handgun must have
both a visible serial number on the exterior of the
frame or receiver, as well as a second serial number
that is not susceptible to eradication. A serial number
is not
2
susceptible to eradication if: (1) it is placed on the
interior of the handgun; or (2) it is placed on the
exterior of the handgun in a way that is not visible to
the unaided eye, but is visible with the aid of an
infrared detector or other device.
b. EXTERNAL LOCKING DEVICE. As an interim measure, until
the implementation of Section I.A.1.c, within 60 days of
execution of the Agreement, each handgun shall be
supplied with an external locking device that
effectively prevents the operation of the firearm when
locked.
c. INTERNAL LOCKING DEVICE. Within 24 months of execution
of the Agreement, each handgun shall have a built-in,
on-board locking system, by which the handgun can only
be operated with a key, a combination unique to that
handgun, or another mechanism unique to that handgun.
d. AUTHORIZED USER TECHNOLOGY. Xxxxx & Wesson shall commit
two percent of annual firearms sales revenues to the
development of a technology that recognizes only
authorized users and permits a handgun to be used only
by authorized persons. Within 36 months of execution of
this Agreement, Xxxxx & Wesson shall use its best
efforts to incorporate this technology in all new
handgun designs, with the exception of curios and
collectors' handguns. This requirement does not apply to
existing designs currently in production. If it is not
technologically, mechanically, or fiscally feasible to
incorporate this technology into all new handgun designs
within 36 months, Xxxxx & Wesson will continue to commit
two percent of annual firearms revenues to the
development of this technology or an alternate
technology agreed upon by the parties to this Agreement.
e. CHILD SAFETY. Within 12 months of execution of the
Agreement, each handgun shall be designed to effectively
preclude an average five year old child from operating
the handgun when it is ready to fire. Such mechanisms
shall include but are not limited to: raising trigger
resistance to at least a ten pound pull, altering the
firing mechanism so that an average five year old
child's hands are too small to operate the handgun, or
requiring a series of multiple motions in order to fire
the handgun.
2
3
This provision shall not apply to handguns that have a
hammer deactivation device.
f. MINIMUM BARREL LENGTH. Each handgun make and model must
have a barrel length of at least 3", unless the
manufacturer has documented test data demonstrating that
the handgun has an average group diameter test result of
1.7" or less at seven yards, 3.9" or less at 14 yards,
and 6.3" or less at 21 yards. The average group diameter
test result is the arithmetic mean of the results of
three separate trials, each performed on a different
sample handgun of the make and model at issue. For each
trial, the handgun shall fire five rounds at a target
from the specified distance, and the largest spread in
inches between the center of any of the holes made in a
test target shall be the result of the trial.
g. PERFORMANCE TEST. A sample of each handgun make and
model will be test-fired with "proof cartridges"
(cartridges loaded to generate excess pressure as set
forth in accepted specifications for proof cartridges)
to ensure the integrity of the material. At least one
cartridge shall be fired from each chamber. Following
this test firing, the handgun will be examined for
hairline cracks or other signs of material failure and
will pass this test only if there are no hairline cracks
or other signs of material failure. Each handgun make
and model shall also pass the following performance
test: the handgun shall fire 600 rounds, stopping only
every 100 rounds to tighten any loose screws and clean
the handgun (if required by the cleaning schedule
recommended in the manual), or as needed to refill the
empty magazine or cylinder to capacity before
continuing. For any handgun that loads other than with a
detachable magazine, the tester shall pause every 50
rounds for ten minutes. The tester shall use the
ammunition recommended in the user's manual, or if none
is recommended, any standard ammunition of the correct
caliber in new condition. A handgun shall pass this test
if it fires the first 20 rounds without a malfunction
and the full 600 rounds with no more than 6 malfunctions
and without any crack or breakage of an operating part
of the handgun that increases the danger of injury.
Malfunction shall not include a misfire caused by a
faulty cartridge whose primer fails to detonate when
properly hit by the handgun's firing mechanism.
3
4
h. DROP TEST. Each handgun must pass the more rigorous of:
(a) the SAAMI Standard drop test in effect on the date
the handgun is sold; or (b) the following test: the
handgun shall be test-loaded, set such that the handgun
is ready to fire, and dropped onto a solid slab of
concrete from a height of one meter from each of the
following positions: (1) normal firing position; (2)
upside down; (3) on the grip; (4) on the muzzle; (5) on
either side; and (6) on the exposed hammer or striker
(or, if there is no exposed hammer or striker, then on
the rearmost part of the handgun). If the handgun is
designed so that its hammer or striker may be set in
other positions, it shall be tested with the hammer or
striker in each such position (but otherwise ready to
fire).
2. ADDITIONAL STANDARDS FOR PISTOLS.
a. SAFETY DEVICE. The pistol must have a positive manually
operated safety device as determined by standards
relating to imported guns promulgated by ATF.
b. MINIMUM LENGTH AND HEIGHT STANDARDS. The pistol's
combined length and height must not be less than 10"
with the height being at least 4" and the length being
at least 6", unless it has an average group diameter
test result of 1.7" or less at seven yards, 3.9" or less
at 14 yards, and 6.3" or less at 21 yards. The average
group diameter test result is the arithmetic mean of the
results of three separate trials, each performed on a
different sample firearm of the make and model at issue.
For each trial, the firearm shall fire five rounds at a
target from the specified distance and the largest
spread in inches between the center of any of the holes
made in a test target shall be the result of the trial.
c. MAGAZINE SAFETY DISCONNECT OR CHAMBER LOAD INDICATOR.
Within 12 months of execution of this Agreement, each
pistol shall have either a magazine safety disconnect or
a chamber load indicator. This provision applies only to
handguns that have a mechanism to load cartridges via a
magazine.
d. LARGE CAPACITY MAGAZINES. No pistol make or model
designed after January 1, 2000 shall be able to accept
4
5
magazines manufactured prior to September 14,1994, with
a greater than 10 round capacity, and such models shall
not be capable of being easily modified to accept such
magazines. Nor shall Xxxxx & Wesson ammunition magazines
that are able to accept more than 10 rounds be sold by
Xxxxx & Wesson or its authorized distributors and
dealers. See Section II.A.l.h, below.
e. ADDITIONAL SAFETY FEATURES. Each pistol must have a
firing pin block or lock.
3. ADDITIONAL STANDARD FOR REVOLVERS. Each revolver make and
model must pass a safety test. Each make and model must have a
safety feature which automatically (for a double action
revolver) or by manual operation (for a single action
revolver) causes the hammer to retract to a point where the
firing pin does not rest upon the primer of the cartridge. The
safety device must withstand, no less than five consecutive
times, the impact of a weight equal to the weight of the
revolver dropping from a distance of 1 meter in a line
parallel to the barrel upon the rear of the hammer spur
without firing a primed case inserted into the chamber and
aligned with the barrel.
B. LAW ENFORCEMENT AND MILITARY EXCEPTION. An exception to a
requirement of paragraph A may be granted for firearms manufactured
or imported for sale to a law enforcement agency or the military if
the law enforcement agency or military organization certifies to
Xxxxx & Wesson that the handgun(s) are for official purposes. Where
a law enforcement agency authorizes or requires its officers to
purchase firearms individually for official use, an appropriate
certification from the agency will be permitted to apply to sales to
a number of individual officers. Xxxxx & Wesson shall maintain the
certification in its records. Firearms sold to law enforcement or
the military pursuant to this exception, which do not comply with
the design standards of this Agreement, will be accompanied by a
statement:
1. "On [date], Xxxxx & Wesson, the City of Boston, and the Boston
Public Health Commission entered into an Agreement
establishing certain design standards for firearms sold to
civilians. Pursuant to that Agreement, we are obliged to
inform you that this firearm does not comply with all of the
design standards of the Agreement. We are further obliged to
request that you not resell this firearm to civilians. This
statement is not intended to suggest that there are any design
flaws with this firearm, and you remain entitled to dispose of
it in any lawful manner."
5
6
C. WARNINGS ABOUT SAFE STORAGE AND HANDLING. Within 6 months of
execution of this Agreement, Xxxxx & Wesson shall include in the
packaging of each firearm sold a warning on risk of firearms in the
home and proper home storage. These warnings shall state in at least
12 point type:
"This handgun is not equipped with a device that fully blocks use by
unauthorized users. More than 200,000 firearms like this one are
stolen from their owners every year in the United States. In
addition, there are more than a thousand suicides each year by
younger children and teenagers who get access to firearms. Hundreds
more die from accidental discharge. It is likely that many more
children sustain serious wounds, or inflict such wounds accidentally
on others. In order to limit the chance of such misuse, it is
imperative that you keep this weapon locked in a secure place and
take other steps necessary to limit the possibility of theft or
accident. Failure to take reasonable preventative steps may result
in innocent lives being lost, and in some circumstances may result
in your liability for these deaths."
D. ILLEGAL FIREARMS. Xxxxx & Wesson shall not sell firearms that can be
readily converted to an illegal firearm (i.e., a weapon designed in
a manner so that with few additional parts and/or minimal
modifications an owner can convert the firearm to an illegal fully
automatic weapon); nor shall the firearms be designed so that they
are resistant to fingerprints.
II. SALES AND DISTRIBUTION OF XXXXX & WESSON FIREARMS.
Xxxxx & Wesson agrees that both it and, as part of any distribution or
agency agreement, its authorized distributors, authorized dealers, and
franchisees (collectively referred to as "authorized distributors and
dealers") shall commit to a standard of conduct to make every effort to
eliminate sales of firearms that might lead to illegal firearm possession
and/or misuse by criminals, unauthorized juveniles, and other prohibited
persons ("suspect firearms sales"). Suspect firearm sales include sales
made to straw purchasers, multiple sales of handguns without reasonable
explanation (excluding sales to FFLs), and sales made to any purchaser
without a completed background check.
The parties to this Agreement agree that the obligations in Section II of
this Agreement shall apply to Xxxxx & Wesson's authorized distributors and
dealers only with respect to firearms manufactured by Xxxxx & Wesson.
As specified in Sections II.A.2 and II.A.3 below, Xxxxx & Wesson will take
action against authorized distributors and dealers that are not compliant
with these requirements if Xxxxx & Wesson receives a request for a
compliance
6
7
review from a compliance liaison designated by the City of Boston and the
Boston Public Health Commission ("Plaintiffs' compliance liaison"), ATF,
or state or local law enforcement.
A. AUTHORIZED DISTRIBUTORS AND DEALERS.
1. REQUIREMENTS. Within 6 months of execution of this Agreement,
Xxxxx & Wesson will sell its firearms only to authorized
distributors and dealers. In order to qualify to become an
authorized distributor or dealer, the distributor or dealer
must agree in writing to:
a. LICENSES AND CERTIFICATION. Possess a valid and current
federal firearms license, and all other licenses and
permits required by local, state, or federal law, and
certify on an annual basis, under penalty of perjury,
compliance with all local, state, and federal firearms
laws.
b. TRANSACTION REQUIREMENTS. For each transaction involving
a Xxxxx & Wesson firearm, perform (in the presence of
the purchaser and at the premises listed on its federal
firearms license) the following:
(1) The completion of the forms and related
requirements under the Xxxxx Act and the Gun
Control Act.
(2) The physical transfer of the firearm.
c. INSURANCE. Where available, carry liability insurance
coverage of at least $1 million per incident for damage
to property and for injury to or the death of any person
resulting from the sale, lease, or transfer of a
firearm.
d. SALES AT GUN SHOWS. Make no sales of Xxxxx & Wesson
firearms at gun shows unless all sales by any seller at
the gun show are conducted only upon completion of a
background check.
e. INVENTORY TRACKING. Within 24 months of execution of
this Agreement, maintain an inventory tracking plan for
Xxxxx & Wesson firearms that includes at a minimum the
following elements:
7
8
(1) Within one business day after the acquisition (or
disposition) of a Xxxxx & Wesson firearm, a record
shall be made of the make, model, caliber or
gauge, serial number, and acquisition (or
disposition) date. Monthly backups of these
records shall be maintained in a secure container
designed to prevent loss by fire, theft, or other
mishap.
(2) All Xxxxx & Wesson firearms acquired but not yet
disposed of shall be accounted for through an
inventory check prepared once each month and
maintained in a secure location.
(3) For authorized dealers and franchisees, all ATF
Form 4473 firearm transaction records for Xxxxx &
Wesson firearms shall be retained on the dealer's
or franchisee's business premises in a secure
container designed to prevent loss by fire, theft,
or other mishap.
(4) If an audit of an authorized distributor's or
dealer's inventory reveals any Xxxxx & Wesson
firearms not accounted for, the authorized
distributor or dealer shall be subject to
termination as an authorized distributor or dealer
as specified in Section II.A.2 below.
f. SECURITY. Implement a plan for securing Xxxxx & Wesson
firearms, including firearms in transit. The plan must
satisfy at least the following requirements:
(1) During business hours, display cases containing
Xxxxx & Wesson firearms shall be locked at all
times except when removing firearms to show a
customer. Customers shall not be left alone or
unattended at any time while handling Xxxxx &
Wesson firearms.
(2) During non-business hours, Xxxxx & Wesson firearms
shall be secured in a locked fireproof safe or
vault, or in another secure and locked area, or by
the use of a security system that is designed to
prevent loss by theft.
8
9
(3) Xxxxx & Wesson firearms shall be stored separately
from handgun ammunition.
g. PERSONS UNDER 18. Not permit any person under 18 to
handle a Xxxxx & Wesson firearm unless he or she is
under the direct supervision of both an employee and a
parent or guardian. However, a person under 18 may
handle a Xxxxx & Wesson firearm as a part of an
organized training program while under the direct
supervision of an employee.
h. SALE OF PRODUCTS. Not sell Xxxxx & Wesson ammunition
magazines that are able to accept more than 10 rounds
regardless of the date of manufacture; not sell any
Xxxxx & Wesson semi-automatic assault weapon as defined
in 18 U.S.C. 921(a)(3) regardless of the date of
manufacture; provide safety locks and warnings with new
Xxxxx & Wesson firearms, as specified in Section I
above; and sell new Xxxxx & Wesson firearms that comport
with Section I above. Law enforcement and export sales
are exempt from this paragraph.
i. ACCESS TO DOCUMENTS REGARDING COMPLIANCE. For purposes
of determining compliance with the requirements of
Section II, or for any other authorized purpose, provide
Xxxxx & Wesson with full access to any documents related
to the acquisition and disposition of Xxxxx & Wesson
firearms deemed necessary for purposes of complying with
Sections II.A.2 and II.A.3.
j. MONITORING OF DISTRIBUTION. Participate in and comply
with all monitoring of firearms distribution by Xxxxx &
Wesson, ATF, or law enforcement.
k TRACE REQUESTS. Maintain a record of all trace requests
of Xxxxx & Wesson firearms initiated by ATF, and report
those trace requests (by make, model, and serial number
of firearm, date of trace, and date of sale) to Xxxxx &
Wesson on a monthly basis, unless ATF, for investigative
reasons, directs the authorized distributor or dealer
not to report certain traces.
l. EMPLOYEE TRAINING AND CERTIFICATION. Within 12 months of
execution of this Agreement, require all employees
involved in the sale of Xxxxx & Wesson firearms to
9
10
receive training prior to handling or selling Xxxxx &
Wesson firearms. The training shall be developed by
Xxxxx & Wesson in consultation with ATF. The training
shall cover at a minimum: the law governing firearms
transfers by licensees and individuals; how to recognize
straw purchasers and other attempts to purchase firearms
illegally; how to recognize indicators that firearms may
be diverted for later sale or transfer to those not
legally entitled to purchase them; how to respond to
those attempts; and the safe handling and storage of
firearms. Additionally, all such employees shall receive
annual training on the aforementioned topics. Such
training may be delivered by electronic medium. If the
firearms industry develops a national training program
that is approved by ATF, and such national training
program is acceptable to the parties to this Agreement,
the national training program may be substituted for the
training program described in this paragraph.
Within 12 months of execution of this Agreement and
annually thereafter, Xxxxx & Wesson will obtain from all
authorized distributors and dealers certifications that
the training has been completed, with a list of the
names of all employees who have received such training.
m. EMPLOYEE TESTING AND CERTIFICATION. Within 12 months of
execution of this Agreement, require all employees to
pass a comprehensive written exam, which shall be
developed by Xxxxx & Wesson in consultation with ATF, on
the material covered in the training before being
allowed to sell or handle Xxxxx & Wesson firearms. Any
employee who fails to pass the exam shall be prohibited
from selling or handling Xxxxx & Wesson firearms on
behalf of the authorized distributor or dealer. The
annual certification discussed above will include
certification that all employees have passed the exam.
n. TRANSFER PREREQUISITES - NICS NOTICE. Not complete any
transfer of a Xxxxx & Wesson firearm prior to receiving
notice from the NICS that the transferee is not a
prohibited person under the Gun Control Act.
o. TRANSFER PREREQUISITES - VALID LICENSE. Verify the
validity of a licensee's federal firearms license
against an ATF database such as the ATF database "FFL eZ
Check"
10
11
before transferring a Xxxxx & Wesson firearm to that
Licensee.
p. TRANSFER LIMITATIONS. Forego any transfer of a Xxxxx &
Wesson firearm to a federal firearms licensee if the
authorized distributor or dealer knows the licensee to
be under indictment for violations of the Gun Control
Act, for any violent felony, or for any serious drug
offense as defined in 18 U.S.C. 924(e)(2).
q. TRANSFER PREREQUISITES - PURCHASER EDUCATION AND
NOTIFICATION. Transfer Xxxxx & Wesson firearms only:
(1) To individuals who have demonstrated that they can
safely handle and store firearms through
completion of a certified firearms safety training
course or by having passed a certified firearms
safety examination. This requirement shall apply
only to individuals who purchase such a firearm(s)
any time after 6 months following the execution of
this Agreement.
(2) After demonstrating to the purchaser how to load,
unload, and safely store the firearm, and how to
engage and disengage all safety devices on the
firearm.
(3) After providing the purchaser with a copy of the
ATF Disposition of Firearms Notice.
(4) After obtaining the purchaser's signature on a
form certifying that the purchaser has received
the instruction described in subparagraph (2) and
the notice described in subparagraph (3) and
retaining a copy of that form for its files.
(5) After providing the purchaser with a written
record of the make, model, caliber or gauge, and
serial number of each firearm transferred to
enable the purchaser to accurately describe the
firearm to law enforcement in the event that it is
subsequently lost or stolen.
2. ENFORCEMENT. Xxxxx & Wesson shall incorporate into any
distribution or agency agreement with its authorized
distributors
11
12
and dealers procedures for terminating agreements with
authorized distributors or dealers that engage in conduct in
violation of this Agreement. Authorized distributors and
dealers shall agree to this enforcement system as a condition
of becoming authorized. Xxxxx & Wesson shall require annual
certification by its authorized distributors and dealers that
they are in compliance with the requirements in Section II.A.1
(a-q) of this Agreement and applicable provisions of Section
II.B and C, below.
3. NONCOMPLIANCE WITH THE AGREEMENT. If Xxxxx & Wesson receives a
request for a compliance review from Plaintiffs' compliance
liaison, ATF, or state or local law enforcement as a result of
alleged noncompliance with this Agreement by an authorized
distributor or dealer, Xxxxx & Wesson will either immediately
terminate sales to the authorized distributor or dealer
allegedly in noncompliance or will take the following actions.
Within seven (7) business days of receiving such a request for
a compliance review, Xxxxx & Wesson will notify the authorized
distributor or dealer, will inform the authorized distributor
or dealer of the alleged noncompliance, and will request
information regarding the alleged noncompliance. The
authorized distributor or dealer will then have fifteen (15)
days to provide Xxxxx & Wesson with the requested information.
If Xxxxx & Wesson determines that the authorized distributor
or dealer is in violation of the Agreement, Xxxxx & Wesson
will provide no further product to the authorized distributor
or dealer until Xxxxx & Wesson determines that the authorized
distributor or dealer is in compliance with the Agreement.
Xxxxx & Wesson shall inform Plaintiffs' compliance liaison
(and, if applicable, ATF and the state or local law
enforcement agency if it initiated the request for a
compliance review) of its notifications and decisions and
shall provide them with the information provided by the
authorized distributor or dealer. If Plaintiffs' compliance
liaison determines that suspension or termination of the
authorized distributor or dealer is warranted, and Xxxxx &
Wesson has not taken this action, Plaintiffs' compliance
liaison may request that the court approving and issuing a
consent decree pursuant to this Agreement direct Xxxxx &
Wesson to do so.
12
13
B. AUTHORIZED DISTRIBUTORS - ADDITIONAL PROVISION.
Authorized distributors must agree to sell Xxxxx & Wesson firearms
only to other authorized distributors or dealers or directly to
government purchasers.
C. AUTHORIZED DEALERS - ADDITIONAL PROVISIONS.
In addition to the requirements in Section II.A.1 above, authorized
dealers must agree:
1. LIMITATION ON SALES TO FEDERAL FIREARMS licensees. Not to sell
any Xxxxx & Wesson firearms to any federal firearms licensee
that is not a Xxxxx & Wesson authorized distributor or dealer.
2. STRAW PURCHASES. Not to engage in sales of Xxxxx & Wesson
firearms that the dealer knows or has reason to know are being
made to straw purchasers.
3. MULTIPLE HANDGUN SALES. In addition to federal, state, and
local regulations relating to multiple handgun sales, to
adhere to the following procedures for multiple Xxxxx & Wesson
handgun sales. If a purchaser wants to purchase more than one
Xxxxx & Wesson handgun, the purchaser may take from the dealer
only one Xxxxx & Wesson handgun on the day of sale. The
purchaser may take the additional Xxxxx & Wesson handgun(s)
from the dealer 14 days thereafter. This provision shall not
apply to sales to qualified private security companies
licensed to do business within the State where the transfer
occurs for use by the company in its security operations.
4. MASSACHUSETTS FORM. For sales that require dealers to fill out
Commonwealth of Massachusetts form FA-10, on that form the
dealer will indicate at the end of the section entitled
"Weapon Information" the following two facts:
a. If the sale was made to law enforcement personnel.
b. If the handgun sold was manufactured prior to October 1,
1998.
X. XXXXX & WESSON.
Xxxxx & Wesson must:
13
14
1. Provide quarterly reports of its own sales data and downstream
sales data, with the volume of sales by make, model, caliber,
and gauge, to ATF's National Tracing Center.
2. Not market any firearm in a way that would make the firearm
particularly appealing to juveniles or criminals, such as
advertising a firearm as "fingerprint resistant."
3. Refrain from selling any modified or sporterized
semi-automatic assault pistol of a type that cannot be
imported into the United States.
4. Reaffirm its longstanding policy and practice of not placing
advertisements in the vicinity of schools, high crime zones,
or public housing.
5. Verify the validity of a licensee's federal firearms license
against an ATF database such as the ATF database "FFL eZ
Check" before transferring a Xxxxx & Wesson firearm to any
licensee.
6. Forego any transfer of a firearm to a federal firearms
licensee if Xxxxx & Wesson knows the licensee to be under
indictment for violations of the Gun Control Act, for any
violent felony, or for any serious drug offense as defined in
18 U.S.C. 924(e)(2).
7. Implement a plan for securing Xxxxx & Wesson
firearms, including firearms in shipment. The
plan will include the following elements:
a. Employee and visitor movement into and out of Xxxxx &
Wesson's facility will be only through designated
security control points, and visitors will be admitted
only after positive identification and confirmation of
the validity of the visit. Employees and visitors must
pass through a metal detector before leaving.
b. All areas where firearms are assembled and stored will
be designated as restricted areas. Access will be
authorized only for those employees whose work requires
them to enter these areas or for escorted visitors.
Protective barriers will be installed in restricted
areas to deny or impede unauthorized access.
14
15
c. Each facility or area where firearms, ammunition, or
components are stored will be provided with a system to
detect unauthorized entry.
d. If firearms are shipped in cartons, the cartons will
bear no identifying marks or words. Xxxxx & Wesson will
use only very strong cartons to protect against
concealed pilferage in truck shipments, and large
cartons will be secured with steel strapping in two
directions. Xxxxx & Wesson will use only carriers and
freight forwarders that warrant in writing that they
conduct criminal background checks on delivery personnel
and will report all thefts or losses of firearms to ATF
within 48 hours of learning of the theft or loss. Xxxxx
& Wesson will inspect carriers' and forwarders' local
facilities periodically.
8. Encourage its authorized distributors and dealers to consent
to up to three unannounced ATF compliance inspections each
year.
9. Use its best efforts to provide its authorized distributors
and dealers with safety locks, at a nominal cost, for use with
used Xxxxx & Wesson firearms.
III. IMPLEMENTING THE AGREEMENT.
X. XXXXX & WESSON'S CORPORATE RESPONSIBILITY.
1. Within a reasonable time after execution of this Agreement,
and upon ATF's consent, ATF will establish a formula to
identify what constitutes a disproportionate number of crime
guns. In determining the formula, ATF shall consider the
available data and establish procedures to ensure that the
relevant data is obtained. This provision will not take effect
until ATF establishes the formula and a mechanism for its
implementation.
2. If ATF informs Xxxxx & Wesson that a disproportionate number
of crime guns have been traced to an authorized distributor or
dealer within three years of the gun's sale, Xxxxx & Wesson
will either immediately terminate sales to the authorized
distributor or dealer or take the following actions. Xxxxx &
Wesson will notify the authorized distributor or dealer of the
disproportionate number of crime guns within seven (7) days
and demand an explanation and proposal to avoid a
disproportionate number of traces in the future. The
authorized distributor or dealer will have fifteen (15) days
to provide the explanation and proposal.
15
16
If Xxxxx & Wesson determines that the explanation and proposal
are not satisfactory, Xxxxx & Wesson will terminate sales to
the authorized distributor or dealer. If Xxxxx & Wesson
determines that the explanation and proposal are satisfactory,
Xxxxx & Wesson will continue sales, but will closely monitor
traces to the authorized distributor or dealer in question. If
disproportionate traces continue, Xxxxx & Wesson will
terminate sales to the authorized distributor or dealer.
3. Xxxxx & Wesson shall inform Plaintiffs' compliance liaison and
ATF of its notifications and decisions and provide them with
the information provided by the authorized distributor or
dealer. If Plaintiffs' compliance liaison determines that
suspension or termination of the authorized distributor or
dealer is warranted, and Xxxxx & Wesson did not take this
action, Plaintiffs' compliance liaison may request that the
court approving and issuing a consent decree pursuant to this
Agreement direct Xxxxx & Wesson to do so.
B. ROLE OF ATF. ATF will continue to issue, regulate, and inspect
federal firearms licensees, collect multiple sales forms, conduct
firearms traces, investigate firearms traffickers and straw
purchasers, enforce the Gun Control Act and the National Firearms
Act, and fulfill its other statutory responsibilities. To the extent
consistent with law and the effective accomplishment of its law
enforcement responsibilities, ATF will work with Xxxxx & Wesson to
assist it in meeting its obligations under the Agreement. Nothing in
this paragraph shall diminish the obligation of Xxxxx & Wesson to
make reasonable efforts to identify noncompliance and to respond to
notifications of violations from parties other than ATF.
X. XXXXX & WESSON'S COMPLIANCE LIAISON.
1. Xxxxx & Wesson shall designate an executive level manager to
serve as a compliance officer and shall provide the compliance
officer with sufficient resources and staff to fulfill the
officer's responsibilities under this Agreement.
2. The compliance officer shall be responsible for:
a. Ensuring that Xxxxx & Wesson fulfills its obligations
under this Agreement;
b. Training Xxxxx & Wesson's officers and employees on the
obligations imposed by this Agreement; and
16
17
c. Serving as the liaison to Plaintiffs' compliance
liaison.
3. Xxxxx & Wesson shall commit to full cooperation in the
implementation and enforcement of this Agreement.
IV. COOPERATION WITH LAW ENFORCEMENT.
X. Xxxxx & Wesson reaffirms its commitment to cooperate fully with law
enforcement and regulators to eliminate illegal firearms sales and
possession.
B. Within 6 months of execution of this Agreement, if technologically
available and reasonably able to be incorporated into the
manufacturing process, Xxxxx & Wesson shall fire each firearm before
sale and shall enter the digital image of its casing along with the
weapon's serial number into a system compatible with the National
Integrated Ballistics Identification Network system. The digital
image shall be made available electronically to ATF's National
Tracing Center. If this technology is not available and reasonably
able to be incorporated into the manufacturing process, Xxxxx &
Wesson shall fire each firearm before sale and shall supply the
fired shell casing, suitably packaged and identified, with the
subject handgun upon transfer from Xxxxx & Wesson to an authorized
distributor or dealer for compliance with applicable laws and
regulations.
X. Xxxxx & Wesson shall participate in ATF's Access 2000 program to
facilitate electronic linkage to its inventory system to allow for
rapid responses to ATF's firearms trace requests.
V. LEGISLATION.
The parties to this Agreement will work together to support legislative
efforts to reduce firearms misuse and the development of authorized user
technology.
VI. EDUCATION TRUST FUND.
Upon resolution of the current lawsuits brought by cities, counties, or
States, the manufacturer parties to this Agreement shall dedicate one
percent of annual firearms revenues to a trust fund to implement a public
service campaign to inform the public about the risk of
17
18
firearms misuse, safe storage, and the need to dispose of firearms
responsibly.
VII. MOST FAVORED ENTITY.
If the manufacturer parties to this Agreement enter into an agreement with
any other entity wherein they commit to institute design or distribution
reforms that are more expansive than any of the above-enumerated items,
such reforms will become a part of this Agreement as well.
In addition, if firearms manufacturers that are not party to this
Agreement agree to design or distribution reforms that are more expansive
than any of the above-enumerated items, and if the manufacturers who are
party to the other agreement(s) with more expansive terms, in combination
with the manufacturer parties to this Agreement, account for fifty percent
or more of United States handgun sales, manufacturer parties to this
Agreement will agree to abide by the same design and distribution
measures.
VIII. ENFORCEMENT.
The Agreement will be entered and is enforceable as a Court order and as a
contract.
18
