Background:

Air Bags. An "air bag" is defined as an inflatable restraint system or portion of an inflatable restraint system installed in a motor vehicle. If an air bag from a previously deployed inflatable restraint system is replaced by either a new air bag or a nondeployed salvage air bag, the air bag must conform to the original equipment manufacturer requirements. The installer must verify that the self-diagnostic system for the inflatable restraint system indicates that the entire inflatable restraint system is operating properly.

It is a gross misdemeanor for a person to install, reinstall, or distribute an air bag for compensation he or she knows or reasonably should know is a previously deployed air bag.

Classification of Crimes and Sentencing. Crimes are classified as misdemeanors, gross misdemeanors, or felonies (of which there are class A, B, and C felonies). While there are exceptions, the classification of a crime generally determines the maximum term of confinement and/or fine for an offense. For each classification, the maximum terms of confinement and maximum fines are as follows:

Classification	Maximum Confinement	Maximum Fine
Misdemeanor	90 days	$1,000
Gross Misdemeanor	364 days	$5,000
Class C Felony	5 years	$10,000
Class B Felony	10 years	$20,000
Class A Felony	Life	$50,000

When a person is convicted of a felony, the Sentencing Reform Act (SRA) applies and determines a specific range of sentence within the statutory maximum. Under the SRA, sentences for felony offenses are determined by reference to a sentencing grid. The sentencing grid provides a standard range of months for the sentence, based on both the severity, or "seriousness level," of the offense and the convicted person's "offender score," which is based on the offender's criminal history.

The Consumer Protection Act. The Consumer Protection Act (CPA) prohibits unfair or deceptive trade practices. A private person or the Attorney General may bring a civil action to enforce the provisions of the CPA. A person or entity found to have violated the CPA is subject to treble damages and attorney's fees.

Summary of Amended Bill:

Definitions. The definition of "air bag" is modified. An air bag is an inflatable restraint system or portion of an inflatable restraint system including, but not limited to, the cushion material, cover, sensors, controllers, inflators, and wiring that operates in the event of a crash and is designed in accordance with federal motor vehicle safety standards for the specific make, model, and year of the motor vehicle in which it is or will be installed.

The definition of "nondeployed salvage air bag" is modified to include a portion of an inflatable restraint system that has not been previously activated or inflated as a result of a collision or other incident.

"Counterfeit air bag" means a replacement motor vehicle inflatable occupant restraint system, including all component parts including, but not limited to, the cushion material, cover, sensors, controllers, inflators, and wiring displaying a mark identical or similar to the genuine mark of a motor vehicle manufacturer without authorization from the manufacturer.

"Nonfunctional air bag" means a replacement motor vehicle inflatable occupant restraint system, including all component parts including, but not limited to, the cushion material, cover, sensors, controllers, inflators, and wiring which: was previously deployed or damaged; has an electric fault that is detected by the vehicle air bag diagnostic system after the installation procedure is completed; or includes any part or object including, but not limited to, a counterfeit or repaired air bag cover installed in a motor vehicle to mislead the owner or operator of the motor vehicle into believing that a functional air bag has been installed.

Crimes Involving Air Bags. The crime of installing, reinstalling, or distributing previously deployed air bags is replaced with new crimes involving air bags.

It is a crime for a person, with criminal negligence, to manufacture or import a motor vehicle air bag that is: a counterfeit air bag; a nonfunctional air bag; a previously deployed or damaged air bag; or an air bag which does not otherwise meet all applicable federal safety standards for an air bag.

It is a crime for a person, in a reckless manner, to sell, offer for sale, install, or reinstall a device in a vehicle for compensation, or distribute as an auto part, or replace a motor vehicle air bag that is: a counterfeit air bag; a nonfunctional air bag; a previously deployed or damaged air bag; or an air bag which does not otherwise meet all applicable federal safety standards for an air bag.

It is crime for a person to sell, install, or reinstall a device that causes a vehicle's diagnostic system to inaccurately indicate that the vehicle is equipped with a functional air bag when a counterfeit air bag, a nonfunctional air bag, or no air bag is installed.

The above crimes do not apply to nondeployed salvage air bags meeting the current statutory requirements for installation. However, a new crimes is created for when a person fails to install an air bag according to current statutory requirements, including complying with the original equipment manufacturer requirements and verifying the inflatable restraint system is operating properly.

All of the crimes are class C felonies ranked as seriousness level VII offenses if bodily injury or death results and V in all other circumstances.

The Consumer Protection Act. Committing a crime involving air bags constitutes an unreasonable act, unfair and deceptive act in trade or commerce, and an unfair method of competition for the purpose of applying the Consumer Protection Act.

Staff Summary of Public Testimony (Public Safety):

(In support) Twelve bills have been passed around the country relating to air bags. This bill is important to Honda and several other automobile companies. The facts that are driving this bill are due to counterfeit air bags that are entering Washington. Federal law enforcement on counterfeit laws depend on trademark violations. Although some of the enforcement laws have been successful, they are limited in scope because they require the use of a trademark.

It is also important to provide Washington with additional enforcement authority to not only focus on the importing of counterfeit air bags that are coming into the state that violate trademark violations but also focus on the manufacture, sale, and installation of nonfunctioning air bags.

Vehicle recyclers sell used undeployed air bags and they also support the current version of the bill.

(Opposed) None.

(Other) Metal recyclers often remove various pieces of an old car and sell the individual pieces to people that use them as replacement parts. A technical amendment to the bill is needed to ensure the protection for salvage is complete. The bill as currently drafted is unclear as to whether an entire system is deemed to have been deployed if any portion of the system is deployed. This issue can be fixed by adding a few words to the definition of "nondeployed salvage air bag" so that the definition is consistent with the definition of previously deployed air bag and an air bag in general.

There is also concern that the bill goes too far in penalizing mistaken or inadvertent action. The standard in the bill is criminal negligence and it is believed that it should be moved to the reckless standard. Criminal negligence is a failure to be aware of a substantial risk and recklessness is when a person knows of and disregards a substantial risk. The Washington Defender Association wants to make sure that mechanics are not caught up in a felony offense but instead penalize those that have the actual knowledge and does the act anyway.

Staff Summary of Public Testimony (General Government & Information Technology):

(In support) This bill passed the Senate and the House Public Safety Committee unanimously, as did the House companion bill out of Public Safety. There is definitely some interplay between federal law and state law with regard to this issue. The existing federal law is referenced in this bill. Federal enforcement activities tend to be focused on importation of counterfeit airbags, a crime which depends on proving a trademark violation. Some of these imports, however, are coming in without the trademark to get around the counterfeit airbag restrictions. There are about 16 examples of federal enforcement shown in the letter from Honda, and of those, six are in Washington. This bill aims to be a complement to federal law by expanding it to apply to counterfeit airbags and any airbags that are not compliant with other federal regulations. The bill fills a void that currently exists in federal law and provides some additional enforcement opportunities to keep Washingtonians safe. Hopefully this bill acts as a deterrent to the crime, so the fiscal impact will be low. The installation of recalled but not counterfeit bags would likely not be an issue. In many cases, current federal laws are ineffective. The example of the trademark removal is a good display of why they are ineffective, because then the bag is not counted as counterfeit. This bill is not aiming to enforce federal laws. Instead, it adds new state-level violations so that even if an airbag gets around the federal standards, the crime can be prosecuted under state laws. The criminal negligence standard is clear and specific. Recklessness is too high a threshold to meet because there are some professional installers who ought to be held up to a criminal negligence standard which is understood to be a reasonable one elsewhere in the industry.

(Opposed) None.

(Other) The evidence standard is currently set in the bill at criminal negligence, which is a problem. This standard equates to acting while failing to be aware of a substantial risk. It would be better policy to set the standard at recklessness because recklessness is to act while knowingly disregarding a risk. We want to avoid individual mechanics from getting into criminal trouble by unknowingly installing a bad airbag that they do not know is not real. Under the current criminal negligence standard in the bill, this could easily happen. This same individual who inadvertently does something that falls under this law would be spared under a reckless standard. Changing the bill to reflect this and narrow the standard a bit would be a good idea.