A08192 Summary:

COSPNSRLupardo, Braunstein, Skoufis, Galef, Thiele, Gottfried, Glick, Weprin, Gunther, Quart, Williams, Colton, Seawright, Rosenthal L, Jaffee, Lavine, Pellegrino, Bohen, McDonald, Lifton, Schimminger, Barron, Niou, Abinanti, Fahy, Epstein
MLTSPNSREnglebright, Jean-Pierre, Kolb, Lentol, McDonough, Miller B, Montesano, Rosenthal D, Simon, Skartados
Add §399-nn, Gen Bus L
Requires manufacturers of digital electronic parts to offer for sale documentation, diagnostic and repair information in the same manner as such manufacturer provides such diagnostic and repair information to such manufacturer's repair provider; section does not apply to motor vehicles.
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A08192 Actions:

06/02/2017referred to consumer affairs and protection
01/03/2018referred to consumer affairs and protection
01/29/2018amend and recommit to consumer affairs and protection
01/29/2018print number 8192a
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A08192 Committee Votes:

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A08192 Text:

                STATE OF NEW YORK
                               2017-2018 Regular Sessions
                   IN ASSEMBLY
                                      June 2, 2017
        Introduced  by  M.  of  A. MORELLE, LUPARDO, BRAUNSTEIN, SKOUFIS, GALEF,
          THIELE, GOTTFRIED, GLICK, WEPRIN, GUNTHER -- Multi-Sponsored by --  M.
          SKARTADOS -- read once and  referred  to  the  Committee  on  Consumer
          Affairs  and  Protection  --  recommitted to the Committee on Consumer
          Affairs and Protection in accordance with Assembly Rule 3, sec.  2  --
          committee  discharged,  bill amended, ordered reprinted as amended and
          recommitted to said committee
        AN ACT to amend the general business law, in relation  to  the  sale  of
          digital electronic equipment diagnostic and repair information
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "fair repair act".
     3    §  2. The general business law is amended by adding a new section 399-
     4  nn to read as follows:
     5    § 399-nn. Sale of digital electronic equipment diagnostic  and  repair
     6  information.  1.  Definitions.    For  the purposes of this section, the
     7  following terms shall have the following meanings:
     8    (a) "Original equipment manufacturer" or "OEM"  means  any  person  or
     9  business  who, in the ordinary course of its business, is engaged in the
    10  business of selling or leasing new digital electronic equipment or parts
    11  of equipment to any person or business and is engaged in the  diagnosis,
    12  service,  maintenance or repair of digital electronic equipment or parts
    13  of such equipment.
    14    (b) "Authorized repair provider" means (i) a person or  business  that
    15  has  an  arrangement  with an OEM for a definite or indefinite period in
    16  which the OEM grants to a person or business  license  to  use  a  trade
    17  name,  service mark or related characteristic for the purposes of offer-
    18  ing repair services under the name of the OEM, or (ii) a person or busi-
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 8192--A                          2
     1  ness retained by the OEM to provide refurbishing services for the  OEM's
     2  product or products.
     3    (c) "Independent repair provider" means a person or business operating
     4  in  the state of New York that is not affiliated with an OEM or an OEM's
     5  authorized repair provider, which is engaged in the diagnosis,  service,
     6  maintenance  or  repair  of  equipment; provided, however, that, for the
     7  purposes of this section, an OEM  shall  be  considered  an  independent
     8  repair  provider  for  the  purposes  of  those  instances when such OEM
     9  engages in the diagnosis, service,  maintenance  or  repair  of  digital
    10  equipment that is not affiliated with the OEM.
    11    (d)  "Owner"  means  a person or business who owns or leases a digital
    12  electronic product purchased or used in the state of New York.
    13    (e) "Documentation" means any manuals, diagrams, reporting output,  or
    14  service code descriptions provided to the authorized repair provider for
    15  the purposes of effecting repair.
    16    (f)  "Digital  electronic  equipment"  or  "equipment" means a part or
    17  equipment originally manufactured  for  distribution  and  sale  in  the
    18  United States.
    19    (g)  "Embedded  software" means any programmable instructions provided
    20  on firmware delivered with the equipment or part  for  the  purposes  of
    21  equipment  operation,  including  all relevant patches and fixes made by
    22  the manufacturer for this purpose, including, but not limited  to  syno-
    23  nyms  "basic  internal  operating  system", "internal operating system",
    24  "machine code", "assembly code", "root code", and "microcode".
    25    (h) "Remote diagnostics"  means  any  remote  data  transfer  function
    26  between  equipment  and  the  provider  of repair services including for
    27  purposes of remote diagnostics, setting controls, or location  identifi-
    28  cation.
    29    (i) "Service parts" or "parts" means any replacement parts, either new
    30  or used, made available by the OEM to the authorized repair provider for
    31  the purposes of effecting repair.
    32    (j)  "Fair  and reasonable terms" means an equitable price in light of
    33  relevant factors, including, but not limited to, the following:
    34    (i) the net cost to the authorized repair provider for similar  infor-
    35  mation  obtained  from  an  OEM,  less  any discounts, rebates, or other
    36  incentive programs;
    37    (ii) the cost to the OEM for preparing and distributing  the  informa-
    38  tion, excluding any research and development costs incurred in designing
    39  and implementing, upgrading or altering the product, but including amor-
    40  tized capital costs for the preparation and distribution of the informa-
    41  tion;
    42    (iii) the price charged by other OEMs for similar information;
    43    (iv)  the  price  charged by OEMs for similar information prior to the
    44  launch of OEM web sites;
    45    (v) the ability of aftermarket technicians  or  shops  to  afford  the
    46  information;
    47    (vi) the means by which the information is distributed;
    48    (vii)  the extent to which the information is used, which includes the
    49  number of users, and frequency, duration, and volume of use; and
    50    (viii) inflation.
    51    (k) "Motor vehicle" means any vehicle that is designed for  transport-
    52  ing  persons or property on a street or highway and that is certified by
    53  the manufacturer under all applicable federal safety and emissions stan-
    54  dards and requirements for distribution and sale in the  United  States,
    55  but  excluding  (i)  a  motorcycle; or (ii) a recreational vehicle or an
    56  auto home equipped for habitation.

        A. 8192--A                          3
     1    (l) "Motor vehicle manufacturer" means any person or business  engaged
     2  in the business of manufacturing or assembling new motor vehicles.
     3    (m)  "Motor  vehicle  dealer" means any person or business who, in the
     4  ordinary course of its business, is engaged in the business  of  selling
     5  or  leasing  new  motor  vehicles  to a person or business pursuant to a
     6  franchise agreement and who has obtained a license,  as  required  under
     7  applicable law, and is engaged in the diagnosis, service, maintenance or
     8  repair of motor vehicles or motor vehicle engines pursuant to said fran-
     9  chise agreement.
    10    (n)  "Manufacturer of motor vehicle equipment" means a person or busi-
    11  ness engaged in the business of manufacturing  or  supplying  components
    12  that  are  used in the manufacture, servicing or repair of a motor vehi-
    13  cle.
    14    (o)  "Medical  device"  means  an  instrument,  apparatus,  implement,
    15  machine,  contrivance,  implant,  or  other  similar or related article,
    16  including a component part, or accessory,  as  defined  in  the  federal
    17  Food,  Drug  and  Cosmetic  Act, 21 USC, Section 321 (h) as amended from
    18  time to time, which is intended for use in the diagnosis of  disease  or
    19  other  conditions,  or in the cure, mitigation, treatment, or prevention
    20  of disease, in man or other animals.
    21    (p) "Aftermarket" means any entity that provides service parts, acces-
    22  sories, second-hand equipment, tools, or diagnostic support for the care
    23  or enhancement of original equipment.
    24    2. For equipment and parts sold or used in  this  state  in  or  after
    25  calendar  year two thousand twelve, the OEMs of such equipment and parts
    26  shall make available  to  independent  repair  providers  or  owners  of
    27  products manufactured by such OEM in a timely manner:
    28    (a)  (1)  documentation,  diagnostic and repair information, including
    29  repair technical updates, schematic diagrams,  updates,  corrections  to
    30  embedded  software and safety and security patches at no cost or for the
    31  same cost and in the same format such OEM  makes  such  information  and
    32  material available to its authorized repair provider; and
    33    (2)  make  available  for  purchase by the equipment owner, his or her
    34  authorized agent or independent repair provider, parts, inclusive of any
    35  updates to the embedded software of the parts, upon fair and  reasonable
    36  terms.  Nothing  in this subdivision shall require the OEM to sell parts
    37  if the parts are no longer available to the OEM or the authorized repair
    38  provider of the OEM.
    39    (b) Any OEM that sells any diagnostic, service, or repair  information
    40  shall  not  require an authorized repair provider to purchase documenta-
    41  tion, diagnostic, service, or repair information in  proprietary  format
    42  if  such  information  is  sold  or  provided  to any independent repair
    43  provider or to any owner in a format that  is  standardized  with  other
    44  OEMs,  on  terms and conditions more favorable than the terms and condi-
    45  tions pursuant to which the authorized repair provider obtains the  same
    46  diagnostic,  service  or  repair  information,  unless  such proprietary
    47  format includes documentation, diagnostic, service, or repair operations
    48  information or functionality that is not available in such  standardized
    49  format.
    50    (c)  Each OEM of equipment sold or used in the state of New York shall
    51  make available for purchase by owners and independent repair  facilities
    52  all  diagnostic  repair  tools incorporating the same diagnostic, repair
    53  and remote communications capabilities that such OEM makes available  to
    54  its  own  repair or engineering staff or any authorized repair provider.
    55  Each OEM shall offer such tools for sale to owners  and  to  independent
    56  repair facilities upon fair and reasonable terms.

        A. 8192--A                          4
     1    Each  OEM  that  provides diagnostic repair information to aftermarket
     2  tool, diagnostics, or third party service information  publications  and
     3  systems  shall  have  fully satisfied its obligations under this section
     4  and thereafter not be responsible for the content and  functionality  of
     5  aftermarket diagnostic tools or service information systems.
     6    (d)  OEM equipment or parts sold or used in the state of New  York for
     7  the purpose of providing  security-related  functions  may  not  exclude
     8  diagnostic,  service and repair information necessary to reset a securi-
     9  ty-related electronic function from information provided to  owners  and
    10  independent  repair facilities unless the information necessary to reset
    11  an immobilizer system or security-related  electronic  module  shall  be
    12  made  available  to owners and independent repair facilities through the
    13  appropriate secure data release systems.
    14    3. Nothing in this section shall be construed to  require  an  OEM  to
    15  divulge a trade secret.
    16    4.  Notwithstanding  any  law,  rule or regulation to the contrary, no
    17  provision in this section shall be read,  interpreted  or  construed  to
    18  abrogate, interfere with, contradict or alter the terms of any agreement
    19  executed  and  in force between an authorized repair provider and an OEM
    20  including, but not limited to, the performance or provision of  warranty
    21  or  recall  repair work by an authorized repair provider on behalf of an
    22  OEM pursuant to such authorized  repair  agreement;  provided,  however,
    23  that  any provision in such an authorized repair agreement that purports
    24  to waive, avoid, restrict or limit an OEM's compliance with this section
    25  shall be void and unenforceable if such authorized repair  agreement  is
    26  executed or extended on or after the effective date of this section.
    27    5.  Nothing  in  this  section  shall  be construed to require OEMs or
    28  authorized repair providers to provide an owner  or  independent  repair
    29  provider  access to non-diagnostic and repair information provided by an
    30  OEM to an authorized repair provider pursuant to the terms of an author-
    31  izing agreement.
    32    6. Nothing in this section shall apply to motor vehicle manufacturers,
    33  any product or service of a motor vehicle manufacturer, manufacturer  of
    34  motor  vehicle  equipment,  or  motor vehicle dealers as defined in this
    35  section.
    36    7. Nothing in this section shall require a manufacturer of  a  medical
    37  device  as  defined  in  this section to implement any provision of this
    38  section that is not permitted under the federal Food, Drug and  Cosmetic
    39  Act  or  any  other federal law, rule or regulation that supersedes this
    40  section.
    41    8. Any independent repair provider that purchases or acquires embedded
    42  software or service parts shall, prior to  performing  any  services  on
    43  digital  electronic  equipment,  notify  the  owner of such equipment in
    44  writing that:
    45    (a) consumers should review the terms and conditions of  the  warranty
    46  for  such  digital  electronic  equipment as repairs not performed by an
    47  authorized repair provider could affect the terms and conditions of  the
    48  warranty;
    49    (b) warrantors cannot require that only branded parts be used with the
    50  product in order to retain the warranty;
    51    (c) warrantors shall demonstrate that a defect or damage was caused by
    52  independent repair to affect the warranty;
    53    (d) warranties are governed by the federal Magnuson-Moss Warranty Act;
    54  and
    55    (e)  such  independent  repair  provider  is  not an authorized repair
    56  provider for such digital electronic equipment.

        A. 8192--A                          5
     1    9. (a) Whenever the  attorney  general  shall  believe  from  evidence
     2  satisfactory to him or her that any person, firm, corporation or associ-
     3  ation  or agent or employee thereof has engaged in or is about to engage
     4  in any of the acts or practices in violation of this section he  or  she
     5  may  bring  a  proceeding in the name and on behalf of the people of the
     6  state of New York to enjoin such  unlawful  acts  or  practices  and  to
     7  obtain  restitution of any moneys or property obtained directly or indi-
     8  rectly by any such acts or practices in violation of  this  section.  In
     9  such  proceeding  preliminary relief may be granted under article sixty-
    10  three of the civil practice law and rules.
    11    (b) Except as provided herein, before any violation of this section is
    12  sought to be enjoined,  the  attorney  general  shall  give  the  person
    13  against  whom  such proceeding is contemplated notice and an opportunity
    14  to show in writing, within five business days after the delivery of such
    15  notice, why a proceeding should not be instituted against  such  person.
    16  Such notice by the attorney general shall be delivered by certified mail
    17  and  by first-class mail with proof of mailing. In a proceeding in which
    18  the attorney general seeks preliminary relief, such notice shall not  be
    19  required  upon a finding by the attorney general that such notice is not
    20  in the public interest.
    21    (c) In connection with any proposed proceeding under this section, the
    22  attorney general is authorized to take proof and make a determination of
    23  the relevant facts, and to issue subpoenas in accordance with the  civil
    24  practice law and rules.
    25    (d)  This subdivision shall apply to all acts or practices declared to
    26  be in violation of this section, whether or not subject to any other law
    27  of this state, and shall not supersede, amend or repeal any other law of
    28  this state under which the attorney general is authorized  to  take  any
    29  action or conduct any inquiry.
    30    (e)  Any person, firm, corporation or association or agent or employee
    31  thereof who engages in any of the acts or practices to be  in  violation
    32  of this section shall be liable to a civil penalty of not more than five
    33  hundred  dollars  for each violation, which shall accrue to the state of
    34  New York and may be recovered in a civil action brought by the  attorney
    35  general.
    36    (f)  Except  in  the instance of a dispute arising between an original
    37  equipment manufacturer and its authorized  repair  provider  related  to
    38  either  party's compliance with an existing authorized repair agreement,
    39  an authorized repair provider shall have all  the  rights  and  remedies
    40  provided in this section.
    41    §  3.  This  act  shall take effect on the sixtieth day after it shall
    42  have become a law.
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