senate Bill S5037A

Amended

Relates to counterfeit and non-functional airbags

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 07 / May / 2013
    • REFERRED TO CONSUMER PROTECTION
  • 14 / May / 2013
    • AMEND AND RECOMMIT TO CONSUMER PROTECTION
  • 14 / May / 2013
    • PRINT NUMBER 5037A
  • 20 / May / 2013
    • 1ST REPORT CAL.622
  • 21 / May / 2013
    • 2ND REPORT CAL.
  • 22 / May / 2013
    • ADVANCED TO THIRD READING
  • 17 / Jun / 2013
    • AMENDED ON THIRD READING (T) 5037B
  • 20 / Jun / 2013
    • SUBSTITUTED BY A6378B

Summary

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.

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Bill Details

Versions:
S5037
S5037A
S5037B
Legislative Cycle:
2013-2014
Law Section:
General Business Law
Laws Affected:
Add §349-e, Gen Bus L

Votes

11
0
11
Aye
0
Nay
0
aye with reservations
0
absent
0
excused
0
abstained
show Consumer Protection committee vote details

Sponsor Memo

BILL NUMBER:S5037A

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.

JUSTIFICATION:

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.

LEGISLATIVE HISTORY:

New bill

FISCAL IMPLICATIONS:

No cost to the state.

EFFECTIVE DATE:

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.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5037--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               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 REPAIRED

 EXPLANATION--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.

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