Relates to counterfeit and non-functional airbags; makes it unlawful to offer to distribute or sell, distribute or sell, a counterfeit or non-functional airbag.
TITLE OF BILL: An act to amend the general business law and the penal law, in relation to counterfeit and non-functional airbags
PURPOSE OR GENERAL IDEA OF BILL:
To address the dramatic increase in counterfeit and non-functional vehicle airbags infiltrating the U.S. marketplace by making it illegal to make, distribute, sell, or install such an airbag in vehicles in New York state.
SUMMARY OF PROVISIONS:
This bill adds a new § 349-e to the General Business Law (GEL) to address the increasing proliferation of counterfeit and substandard airbags making their way into the New York marketplace.
Section One is the short title.
Section Two establishes the applicable definitions, including definitions of counterfeit and non-functional airbags. This section provides that it shall be a class A misdemeanor to knowingly: (a) make, distribute or sell a counterfeit or non-functional airbag; (b) install or reinstall a counterfeit airbag or non-functional airbag; (c) sell, install or reinstall an airbag so that the diagnostic system falsely displays the airbag in proper working order; or (d) represent that a counterfeit or non-functional airbag in a vehicle is not counterfeit or non-functional. A civil penalty is established in the amount of $1,000 for a single violation and up to $5,000 for a subsequent violation. Judicial discretion is given in the event that a violation is proven to be unintentional and resulting from a bona fide error.
Section Three is the effective date.
Since 2010, when U.S. customs intercepted 334 counterfeit. airbags manufactured at Guangzhou Global Auto Parts, and bearing the logos of Honda, BMW, Lexus, and Audi, the US has become aware of a growing proliferation of counterfeit automobile parts arriving in the United States. An analysis by an independent think tank (Frost and Sullivan) showed, in 2011, automobile suppliers lost $45 billion worldwide to counterfeiting. While most of the counterfeit parts can be traced to China, U.S. officials have identified several other Asian nations as the source of these parts. The one constant: uniformly, these airbags do not perform to the standard of the original manufacturer's replacement equipment.
Of particular concern to Federal and state officials are the distribution and installation of counterfeit airbags. Airbag systems axe highly-sophisticated mechanisms, intricately coordinated to provide a life-saving function. Indeed, with so many components required to work in concert, manufacturers code each airbag mechanism in order to make certain that a replacement airbag will deploy to the exact same specifications as the original. 7/1000s of a second can
mean the difference between life and death. The National Highway Traffic Administration (NHTSA) has found that, while the counterfeit airbags are packaged to look like manufacturer's equipment, including the use of insignia and branding of the original manufacturer, NHTSA testing showed "consistent malfunctioning ranging from non-deployment of the air bag to the expulsion of metal shrapnel during deployment." Before we start experiencing injuries and deaths in our state as a result of this new issue, we should take action proactively.
While Federal officials have ramped up their efforts to prevent counterfeit airbags from entering the United States (another 1,600 bags were seized from a Charlotte man in August 2012), the practice has become so ubiquitous that counterfeit airbags can be purchased wholesale through websites such as Alibaba.com (recently offering "Honda airbags" from 12 suppliers with a minimum order of 100), and retail through Amazon and eBay. Any legitimate body or repair shop that accesses airbags through theses sources clearly understand that this is not original factory equipment. And in the most abusive cases, unscrupulous shop owners will purchase these cheap airbags, but charge the customer (or insurance company) the full cost of a manufacturer's airbag, and pocket the difference, while callously ignoring the safety of their customers.
This legislation addresses the full scope of this problem by making it unlawful to knowingly traffic in or install a counterfeit or nonfunctional airbag and by providing the Attorney General with the necessary powers to address any large scheme to bring this dangerous and deficient equipment into New York.
No cost to the state.
This act shall take effect on November 1st after becoming law; provided however, the violation of the Penal Law provisions can only be invoked when the death or serious physical injury has resulted from the installation of a counterfeit or non-functional airbag on or after such date.
STATE OF NEW YORK ________________________________________________________________________ 5037--A 2013-2014 Regular Sessions IN SENATE May 7, 2013 ___________Introduced by Sens. ZELDIN, LARKIN, MARCHIONE, MAZIARZ -- read twice and ordered printed, and when printed to be committed to the Committee on Consumer Protection -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the general business law and the penal law, in relation to counterfeit and non-functional airbags THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. This act shall be known and may be referred to as the "counterfeit airbag prevention act." S 2. The general business law is amended by adding a new section 349-e to read as follows: S 349-E. COUNTERFEIT AND NON-FUNCTIONAL AIRBAGS. 1. AS USED IN THIS SECTION: (A) "AIRBAG" SHALL MEAN ANY COMPONENT OF AN INFLATABLE RESTRAINT SYSTEM, AS SUCH TERM IS DEFINED IN SECTION ONE HUNDRED NINETEEN-B OF THE VEHICLE AND TRAFFIC LAW, AND THAT IS DESIGNED FOR THE SPECIFIC MAKE, MODEL, AND YEAR OF THE MOTOR VEHICLE TO BE INSTALLED AND TO OPERATE IN THE EVENT OF A CRASH. AIRBAG COMPONENTS INCLUDE BUT ARE NOT LIMITED TO THE COVER, SENSORS, CONTROLLERS, INFLATOR, WIRING, AND THE AIRBAG ITSELF. (B) "COUNTERFEIT AIRBAG" SHALL MEAN AN AIRBAG THAT BEARS, WITHOUT AUTHORIZATION, A MARK IDENTICAL WITH, OR SUBSTANTIALLY SIMILAR TO, THE GENUINE MARK OF THE MANUFACTURER OF SUCH MOTOR VEHICLE. (C) "NON-FUNCTIONAL AIRBAG" SHALL MEAN A REPLACEMENT AIRBAG THAT HAS BEEN PREVIOUSLY DEPLOYED OR DAMAGED, OR THAT HAS AN ELECTRICAL FAULT THAT IS DETECTED BY THE READINESS INDICATOR LIGHT, AS SUCH TERM IS DEFINED IN SECTION ONE HUNDRED NINETEEN-B OF THE VEHICLE AND TRAFFIC LAW, AFTER THE INSTALLATION PROCEDURE IS COMPLETED. "NON-FUNCTIONAL AIRBAG" SHALL ALSO MEAN ANY OBJECT, INCLUDING A COUNTERFEIT OR REPAIREDEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD10779-02-3 S. 5037--A 2
AIRBAG COMPONENT INSTALLED TO DECEIVE THE VEHICLE OWNER OR OPERATOR INTO BELIEVING A FUNCTIONAL AIRBAG IS INSTALLED. (D) "PERSON" SHALL MEAN ANY PERSON, PARTNERSHIP, FIRM, CORPORATION, COMPANY, TRUST, ASSOCIATION, OR ANY AGENT OR EMPLOYEE THEREOF. 2. (A) IT SHALL BE UNLAWFUL FOR ANY PERSON TO KNOWINGLY: (I) MAKE, OFFER TO DISTRIBUTE OR DISTRIBUTE, OFFER TO SELL OR SELL A COUNTERFEIT OR A NON-FUNCTIONAL AIRBAG; (II) INSTALL OR REINSTALL A COUNTERFEIT AIRBAG OR A NON-FUNCTIONAL AIRBAG IN ANY MOTOR VEHICLE, AS THAT TERM IS DEFINED IN SECTION ONE HUNDRED TWENTY-FIVE OF THE VEHICLE AND TRAFFIC LAW; (III) OFFER TO DISTRIBUTE OR DISTRIBUTE, OFFER TO SELL OR SELL, INSTALL OR REINSTALL A COUNTERFEIT OR NON-FUNCTIONAL AIRBAG SO THAT THE READINESS INDICATOR LIGHT, AS SUCH TERM IS DEFINED IN SECTION ONE HUNDRED NINETEEN-B OF THE VEHICLE AND TRAFFIC LAW, FALSELY DISPLAYS THAT THE AIRBAG IS IN PROPER WORKING ORDER; OR (IV) REPRESENT TO ANOTHER PERSON THAT A COUNTERFEIT AIRBAG OR A NON-FUNCTIONAL AIRBAG INSTALLED OR REINSTALLED IN A MOTOR VEHICLE IS AN AIRBAG. (B) ANY PERSON WHO VIOLATES ANY PROVISION OF THIS SUBDIVISION IS GUIL- TY OF A CLASS A MISDEMEANOR PUNISHABLE AS PROVIDED FOR IN THE PENAL LAW. 3. WHENEVER THERE SHALL BE A VIOLATION OF THIS ARTICLE, APPLICATION MAY BE MADE BY THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION BY A SPECIAL PROCEEDING TO ISSUE AN INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF NOT LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE OF SUCH VIOLATION; AND IF IT SHALL APPEAR TO THE SATISFACTION OF THE COURT OR JUSTICE THAT THE DEFENDANT HAS, IN FACT, VIOLATED THIS ARTICLE, AN INJUNCTION MAY BE ISSUED BY SUCH COURT OR JUSTICE, ENJOINING AND RESTRAINING ANY FURTHER VIOLATION, WITHOUT REQUIRING PROOF THAT ANY PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY. IN CONNECTION WITH ANY SUCH PROPOSED APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF THIS ARTICLE HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF NOT MORE THAN ONE THOUSAND DOLLARS FOR A SINGLE VIOLATION AND NOT MORE THAN ONE HUNDRED THOUSAND DOLLARS FOR MULTIPLE VIOLATIONS RESULTING FROM A SINGLE ACT OR INCIDENT. THE SECOND VIOLATION AND ANY VIOLATION COMMITTED THEREAFTER SHALL BE PUNISHABLE BY A CIVIL PENALTY OF NOT MORE THAN FIVE THOUSAND DOLLARS FOR A SINGLE VIOLATION AND NOT MORE THAN TWO HUNDRED FIFTY THOUSAND DOLLARS FOR MULTIPLE VIOLATIONS RESULTING FROM A SINGLE ACT OR INCIDENT. NO PERSON, FIRM, PARTNERSHIP, ASSOCIATION OR CORPORATION SHALL BE DEEMED TO HAVE VIOLATED THE PROVISIONS OF THIS ARTICLE IF SUCH PERSON, FIRM, PART- NERSHIP, ASSOCIATION OR CORPORATION SHOWS, BY A PREPONDERANCE OF THE EVIDENCE, THAT THE VIOLATION WAS NOT INTENTIONAL AND RESULTED FROM A BONA FIDE ERROR MADE NOTWITHSTANDING THE MAINTENANCE OF PROCEDURES REASONABLY ADOPTED TO AVOID SUCH ERROR. S 3. This act shall take effect the first of November next succeeding the date on which it shall have become a law.