S T A T E O F N E W Y O R K
________________________________________________________________________
8268--B
2017-2018 Regular Sessions
I N A S S E M B L Y
June 5, 2017
___________
Introduced by M. of A. PHEFFER AMATO -- read once and referred to the
Committee on Consumer Affairs and Protection -- recommitted to the
Committee on Consumer Affairs and Protection in accordance with Assem-
bly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- again
reported from said committee with amendments, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the general business law, in relation to safety recalls
on used motor vehicles
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The general business law is amended by adding a new section
198-d to read as follows:
§ 198-D. USED MOTOR VEHICLES; RECALLS. (A) FOR THE PURPOSE OF THIS
SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
(1) "DEALER" SHALL HAVE THE SAME MEANING AS PARAGRAPH A OF SUBDIVISION
ONE OF SECTION FOUR HUNDRED FIFTEEN OF THE VEHICLE AND TRAFFIC LAW.
(2) "USED MOTOR VEHICLE" SHALL HAVE THE SAME MEANING AS PARAGRAPH I OF
SUBDIVISION ONE OF SECTION FOUR HUNDRED FIFTEEN OF THE VEHICLE AND TRAF-
FIC LAW.
(3) "STOP DRIVE ORDER" SHALL MEAN A NOTIFICATION ISSUED UNDER 49 USC
SECTION 30118 WHICH INCLUDES PRECAUTIONARY ADVICE TO STOP DRIVING A
MOTOR VEHICLE (INCLUDING THE VEHICLE IDENTIFICATION NUMBER FOR SUCH
VEHICLE).
(4) "SAFER CAR WEBSITE" SHALL MEAN ANY WEBSITE, APPLICATION, OR INTER-
NET ACCESSED PLATFORM OPERATED BY THE NATIONAL HIGHWAY TRAFFIC SAFETY
ADMINISTRATION, THE UNITED STATES DEPARTMENT OF TRANSPORTATION, OR THEIR
AGENT AND/OR SUBCONTRACTOR, WHEREIN A CONSUMER MAY DETERMINE THE STATUS
OF ALL RECALLS ON ANY NEW AND/OR USED MOTOR VEHICLE.
(B) IF, PRIOR TO EXECUTING A CONTRACT FOR SALE OR LEASE OF A USED
MOTOR VEHICLE AT RETAIL, A DEALER DETERMINES PURSUANT TO THE INQUIRY
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11912-06-8
A. 8268--B 2
REQUIRED BY SUBDIVISION (F) OF THIS SECTION THAT THE USED MOTOR VEHICLE
SUBJECT TO THE CONTRACT IS UNDER A STOP DRIVE ORDER, SUCH DEALER SHALL
NOT SELL OR LEASE ANY SUCH VEHICLE UNTIL THE DEFECT OR NONCOMPLIANCE IS
REMEDIED.
(C) A DEALER SHALL DISCLOSE IN ANY PRINT AND ONLINE ADVERTISEMENT THAT
ANY USED MOTOR VEHICLE BEING ADVERTISED MAY BE SUBJECT TO A RECALL, AND
THAT A CONSUMER MAY OBTAIN ALL RECALL INFORMATION FROM THE SAFER CAR
WEBSITE. TWO DAYS PRIOR TO THE SUBMISSION OF ANY ADVERTISEMENT FOR A
USED MOTOR VEHICLE, A DEALER SHALL MAKE AN INQUIRY ON THE SAFER CAR
WEBSITE FOR ANY OPEN RECALLS. IF ANY OPEN RECALLS ARE LISTED ON THIS
REPORT, THE DEALER SHALL EITHER CAUSE THE RECALL DEFECT TO BE REPAIRED
BEFORE THE USED VEHICLE IS DELIVERED TO THE CONSUMER, OR CLEARLY DISPLAY
NOTICE, IN SUCH ADVERTISEMENT, STATING THAT THE PARTICULAR VEHICLE IS
SUBJECT TO AN OPEN RECALL.
(D) A DEALER SHALL MAINTAIN A LINK ON ANY WEBSITE OR ONLINE PLATFORM
IT CONTROLS DIRECTING THAT A CONSUMER MAY OBTAIN ALL RECALL INFORMATION
FROM THE SAFER CAR WEBSITE.
(E) A DEALER SHALL PLACE UPON ALL USED VEHICLES FOR SALE A STICKER
AND/OR DECAL THAT INCLUDES INFORMATION THAT WILL ALLOW A CONSUMER TO
CHECK THE STATUS OF ANY POTENTIAL RECALLS ON SAID VEHICLE THROUGH THE
SAFER CAR WEBSITE, OR SHALL INCLUDE A MEANS OF CHECKING SAID VEHICLE'S
RECALL STATUS ON THE SAFER CAR WEBSITE BY SCANNING A BAR CODE, QR CODE,
OR VEHICLE IDENTIFICATION NUMBER, OR SHALL INCLUDE A REPORT, WHICH MAY
BE A PRINT COPY OF THE RESULTS OF A SEARCH OF THE SAFER CAR WEBSITE,
FROM THE SAFER CAR WEBSITE REFLECTING THE VEHICLE'S RECALL STATUS.
(F) A DEALER SHALL PERFORM, PRIOR TO, BUT NO EARLIER THAN TWO DAYS
BEFORE, THE EXECUTION OF THE SALE OR LEASE OF ANY USED VEHICLE, A SEARCH
USING THE VEHICLE IDENTIFICATION NUMBER OF THE VEHICLE INVOLVED IN THE
TRANSACTION ON THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION'S
SAFER CAR WEBSITE, AND SHALL PRODUCE AND PROVIDE THE REPORT FROM SUCH
WEBSITE TO THE PURCHASER OF ANY MOTOR VEHICLE SAFETY RECALL OR RECALLS
THAT THE MOTOR VEHICLE IS SUBJECT TO, THAT SUCH RECALLS MAY BE REPAIRED
BY A MOTOR VEHICLE DEALER APPROVED BY THE MANUFACTURER OF THE VEHICLE,
AND THAT FURTHER INFORMATION ON THE RECALLS MAY BE OBTAINED FROM THE
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION ON ITS SAFER CAR WEBSITE.
PROVIDING A PRINTOUT OF THE RESULT OF THE SEARCH PROVIDED FOR IN THIS
SUBDIVISION SHALL BE DEEMED COMPLIANCE WITH THIS REQUIREMENT, AND SUCH
NOTICE SHALL BE SIGNED BY THE PURCHASER. ADDITIONALLY, SUCH DEALER WHO
COMPLIES WITH THIS SUBDIVISION SHALL BE DEEMED TO HAVE COMPLIED WITH ANY
STATE OR LOCAL LAW, RULE OR REGULATION RELATING TO DECEPTIVE TRADE,
BUSINESS OR COMMERCIAL ACTS OR PRACTICES CONCERNING THE SALE OR LEASE
OF, OR OFFER TO SELL OR LEASE, ANY USED MOTOR VEHICLE THAT AS A RESULT
OF A FEDERAL SAFETY DEFECTIVE OR NONCOMPLIANT CONDITION HAS BEEN
RECALLED BY THE ORIGINAL EQUIPMENT MANUFACTURER OF SUCH USED MOTOR VEHI-
CLE OR THE UNITED STATES DEPARTMENT OF TRANSPORTATION, PROVIDED, HOWEV-
ER, THE PROVISIONS OF SECTION ONE HUNDRED NINETY-EIGHT-B OF THIS ARTICLE
SHALL STILL APPLY.
(G) WHERE A FRANCHISOR OR MANUFACTURER, AS DEFINED BY SECTION FOUR
HUNDRED SIXTY-TWO OF THE VEHICLE AND TRAFFIC LAW, DIRECTLY OR INDIRECTLY
SUBJECTS ANY DEALER TO ANY FINANCIAL OR OTHER PENALTIES OR OTHERWISE
PENALIZES OR PREVENTS A DEALER FROM SELLING OR LEASING ANY USED MOTOR
VEHICLE SUBJECT TO RECALL, INCLUDING WHERE ANY SUCH RESTRICTIONS ARE
IMPOSED BY THE MANUFACTURER, EITHER THROUGH THE ISSUANCE OF A "STOP
SELL" OR ANY OTHER COMMUNICATION, OR FEDERAL, STATE, OR LOCAL LAW OR
REGULATION:
A. 8268--B 3
(1) THE FRANCHISOR OR MANUFACTURER SHALL, WITHIN FIFTEEN DAYS FROM
NOTICE OF A RECALL, OR UPON NOTIFICATION FROM A DEALER THAT THEY ARE IN
POSSESSION OF A VEHICLE SUBJECT TO SUCH RECALL, WHICH IS COVERED UNDER A
POLICY OR POLICIES AS DESCRIBED IN THIS SUBDIVISION, PROVIDE TO SAID
DEALER A PAYMENT OF ONE AND SEVENTY-FIVE HUNDREDTHS PERCENT OF THE VALUE
OF A USED MOTOR VEHICLE AS DETERMINED BY THE AVERAGE "TRADE-IN" VALUE
FOR A SIMILAR USED VEHICLE AS INDICATED IN A WIDELY DISSEMINATED,
PUBLICLY AVAILABLE, INDEPENDENT USED MOTOR VEHICLE GUIDE FOR THE YEAR,
MAKE, MODEL, AND MILEAGE OF THE USED MOTOR VEHICLE IN THE POSSESSION OF
THE DEALER FOR EVERY THIRTY DAYS, OR PORTION OF THIRTY DAYS, THE DEALER
IS UNABLE TO SELL, OFFER TO SELL, OR REPAIR SUCH VEHICLE DUE TO THE
INABILITY TO SATISFY ANY RECALL ISSUED FOR SUCH VEHICLE OR DUE TO COMMU-
NICATION RECEIVED FROM THE MANUFACTURER REGARDING THE SALE OF SUCH VEHI-
CLE; AND
(2) THE MANUFACTURER OR FRANCHISOR SHALL PAY THE DEALER THROUGH A
CREDIT TO THE DEALER'S OPEN ACCOUNT, OR BY ANY OTHER METHOD APPROVED BY
THE DEALER.
(H) THE MANUFACTURER OR FRANCHISOR MAY NOT RETALIATE AGAINST A DEALER
WHO HAS SUBMITTED A CLAIM FOR REIMBURSEMENT UNDER THIS SECTION OR WHO
WAS OTHERWISE COMPENSATED FOR A VEHICLE SUBJECT TO A RECALL. FOR THE
PURPOSES OF THIS SUBDIVISION, RETALIATION SHALL INCLUDE, BUT SHALL NOT
BE LIMITED TO, REDUCING THE AMOUNT OF COMPENSATION OTHERWISE OWED TO A
DEALER, WHETHER THROUGH A CHARGEBACK, REMOVAL FROM AN INCENTIVE PROGRAM,
REDUCING THE AMOUNT OWED UNDER AN INCENTIVE PROGRAM, OR ANY OTHER MEANS,
IMPOSING ADDITIONAL REQUIREMENTS, WITHHOLDING INVENTORY, REDUCING ALLO-
CATION, REQUIRING ANY FACILITY UPGRADE, OR OTHERWISE SURCHARGING OR
PENALIZING THE DEALER. A DEALER MAY NOT, HOWEVER, RECEIVE COMPENSATION
FOR THE SAME VEHICLE UNDER RECALL UNDER THIS SECTION, AS WELL AS UNDER
ANOTHER MANUFACTURER PROGRAM DESIGNED TO MITIGATE DEALER COSTS FOR THE
HOLDING OF VEHICLES UNDER RECALL, UNLESS OTHERWISE ENTITLED TO SUCH
COMPENSATION.
(I) THE MANUFACTURER OR FRANCHISOR SHALL PAY FOR ANY REPAIRS PERFORMED
BY THE DEALER TO REMEDY ANY RECALL, PURSUANT TO THE PROVISIONS OF
SECTION FOUR HUNDRED SIXTY-FIVE OF THE VEHICLE AND TRAFFIC LAW. ANY
REPLACEMENT PART PROVIDED FOR A RECALL REPAIR SHALL BE PAID AT THE
EXISTING RETAIL REIMBURSEMENT RATE IN EXISTENCE AT THE TIME THE REPAIR
IS PERFORMED.
§ 2. This act shall take effect immediately, provided, however, that
subdivisions (b) through (f) of section one hundred ninety-eight-d of
the general business law, as added by section one of this act, shall
take effect sixty days after this act shall have become a law.