A04066 Summary:

Add Art 12-D SS399-p & 399-q, V & T L
Protects motor vehicle owners and small businesses in repairing motor vehicles; requires that manufacturers shall make the same diagnostic and repair information and tools available to owners and repair shops as such information is available to franchised motor vehicle dealers.
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A04066 Actions:

01/29/2015referred to transportation
01/06/2016referred to transportation
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A04066 Text:

                STATE OF NEW YORK
                               2015-2016 Regular Sessions
                   IN ASSEMBLY
                                    January 29, 2015
        Introduced  by  M.  of  A.  DenDEKKER  --  read once and referred to the
          Committee on Transportation
        AN ACT to amend the vehicle and traffic law, in relation  to  protecting
          motor vehicle owners and small businesses in repairing motor vehicles
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. The vehicle and traffic law is  amended  by  adding  a  new
     2  article 12-D to read as follows:
     3                                ARTICLE 12-D
     4                             RIGHT TO REPAIR ACT
     5  Section 399-p. Definitions.
     6          399-q. Repair of motor vehicles.
     7    §  399-p. Definitions. For the purposes of this article, the following
     8  terms shall have the following definitions:
     9    1. "Franchised motor vehicle dealer" shall mean any person required to
    10  be registered pursuant to section four hundred fifteen of  this  chapter
    11  which  has  been  granted  a  franchise as defined in subdivision six of
    12  section four hundred sixty-two of this chapter.
    13    2. "Fair and reasonable terms" shall mean that in determining  whether
    14  a price is on "fair and reasonable terms," consideration may be given to
    15  relevant factors, including, but not limited to, the following:
    16    (a)  The  net  cost  to  the manufacturer's franchised dealerships for
    17  similar information obtained from  manufacturers,  less  any  discounts,
    18  rebates, or other incentive programs.
    19    (b)  The  cost  to the manufacturer for preparing and distributing the
    20  information, excluding any research and development  costs  incurred  in
    21  designing  and  implementing, upgrading or altering the onboard computer
    22  and its software or any other vehicle part or component. Amortized capi-
    23  tal costs for the preparation and distribution of the information may be
    24  included.
    25    (c) The price charged by other manufacturers for similar information.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 4066                             2
     1    (d) The price charged by manufacturers for similar  information  prior
     2  to the launch of manufacturer web sites.
     3    (e)  The  ability  of  aftermarket  technicians or shops to afford the
     4  information.
     5    (f) The means by which the information is distributed.
     6    (g) The extent to which the information is used,  which  includes  the
     7  number of users, and frequency, duration, and volume of use.
     8    (h) Inflation.
     9    3.  "Immobilizer  system" shall mean an electronic device designed for
    10  the sole purpose of preventing the theft of a motor vehicle by  prevent-
    11  ing the motor vehicle in which it is installed from starting without the
    12  correct activation or authorization code.
    13    4.  "Motor vehicle repair shop" shall mean any person who, for compen-
    14  sation, is wholly or partially engaged in the business of  repairing  or
    15  diagnosing motor vehicle malfunctions or repairing motor vehicle bodies,
    16  fenders  or  other  components  damaged by accident or otherwise, except
    17  that such term does not include:
    18    (a) an employee of a motor vehicle repair  shop  who  engages  in  the
    19  business of repairing motor vehicles solely by reason of his employment;
    20    (b)  any person who is solely engaged in the business of repairing the
    21  motor vehicles of a single commercial or industrial establishment, or of
    22  the federal, state or local government or any agency thereof;
    23    (c) any person whose activities consist solely  of  fueling,  changing
    24  oil,  water, batteries or tires, replacing fan belts, air filters or oil
    25  filters, installing windshield wiper blades  or  light  bulbs,  or  such
    26  other  minor repair and servicing functions as the commissioner shall by
    27  rule prescribe; or
    28    (d) any person solely engaged in the business  of  repairing  farm  or
    29  road  building  machines,  or such other utility vehicles as the commis-
    30  sioner may by regulation designate.
    31    5. "Manufacturer" shall mean any person or  business  engaged  in  the
    32  business of manufacturing or assembling new motor vehicles.
    33    6.  "Motor  vehicle"  shall  have  the same meaning as the term "motor
    34  vehicles" as defined in section one hundred twenty-five of this chapter.
    35    7. "Owner" shall mean a person or business who owns or leases a  motor
    36  vehicle registered in this state.
    37    8. "Trade secret" shall mean anything, tangible or intangible or elec-
    38  tronically  stored  or kept, which constitutes, represents, evidences or
    39  records intellectual property including secret  or  confidentially  held
    40  designs,  processes,  procedures, formulas, inventions, or improvements,
    41  or secret or confidentially held scientific,  technical,  merchandising,
    42  production,  financial,  business or management information, or anything
    43  within the definition of 18 U.S.C. § 1839(3).
    44    § 399-q. Repair of motor vehicles. 1. (a) Except as provided in  para-
    45  graph  (c)  of  this subdivision, for model year 2002 motor vehicles and
    46  thereafter, a manufacturer of motor vehicles sold in  this  state  shall
    47  make  available for purchase by owners of motor vehicles manufactured by
    48  such manufacturer and by motor vehicle repair shops the same  diagnostic
    49  and  repair  information,  including repair technical updates, that such
    50  manufacturer makes available to its dealers through  the  manufacturer's
    51  internet-based  diagnostic  and repair information system or other elec-
    52  tronically accessible  manufacturer's  repair  information  system.  All
    53  content  in  any  such manufacturer's repair information system shall be
    54  made available to owners and to motor vehicle repair shops in  the  same
    55  form  and  manner and to the same extent as is made available to dealers
    56  utilizing such diagnostic and repair information system.  Each  manufac-

        A. 4066                             3
     1  turer  shall provide access to such manufacturer's diagnostic and repair
     2  information system for purchase by owners and motor vehicle repair shops
     3  on a daily, monthly and yearly subscription  basis  and  upon  fair  and
     4  reasonable terms.
     5    (b)  Any  manufacturer  that  sells any diagnostic, service, or repair
     6  information to any motor  vehicle  repair  shop  or  other  third  party
     7  provider  in a format that is standardized with other manufacturers, and
     8  on terms and conditions more favorable than the manner and the terms and
     9  conditions pursuant to which the dealer  obtains  the  same  diagnostic,
    10  service  or  repair  information, shall be prohibited from requiring any
    11  dealer to continue purchasing diagnostic, service, or repair information
    12  in a proprietary format, unless such proprietary format  includes  diag-
    13  nostic,  service,  repair  or dealership operations information or func-
    14  tionality that is not available in such standardized format.
    15    (c)(i) For  model  year  2002  motor  vehicles  and  thereafter,  each
    16  manufacturer  of  motor vehicles sold in this state shall make available
    17  for purchase by owners and motor vehicle  repair  shops  all  diagnostic
    18  repair  tools  incorporating  the  same  diagnostic, repair and wireless
    19  capabilities that such manufacturer makes available to its dealers. Such
    20  tools shall incorporate the same  functional  repair  capabilities  that
    21  such  manufacturer  makes  available to dealers. Each manufacturer shall
    22  offer such tools for sale to owners and to motor  vehicle  repair  shops
    23  upon fair and reasonable terms.
    24    (ii)(1)  Any  diagnostic  tool  or  information necessary to diagnose,
    25  service or repair a motor vehicle that a manufacturer sells to any motor
    26  vehicle repair shop in a manner and on terms and conditions more favora-
    27  ble than the manner and the terms and conditions pursuant to  which  the
    28  dealer  obtains  the  same  diagnostic  tool or information necessary to
    29  diagnose, service or repair a motor vehicle, shall also  be  offered  to
    30  the  dealer  in  the same manner and on the same terms and conditions as
    31  provided to such motor vehicle repair shop.
    32    (2) Any manufacturer that sells to any motor vehicle repair  shop  any
    33  diagnostic tool necessary to diagnose, service or repair a motor vehicle
    34  and  such  diagnostic  tool communicates with the vehicle using the same
    35  non-proprietary interface used by other manufacturers, the  manufacturer
    36  delivering  such  diagnostic tool shall be prohibited from requiring any
    37  dealer from continuing to purchase that manufacturer's proprietary  tool
    38  and  interface  unless  such  proprietary interface has a capability not
    39  available in the non-proprietary interface.
    40    (iii) Each manufacturer shall provide diagnostic repair information to
    41  each after market scan tool company and each third party service  infor-
    42  mation  provider  with  whom the manufacturer has appropriate licensing,
    43  contractual or confidentiality agreements for the sole purpose of build-
    44  ing aftermarket diagnostic tools and  third  party  service  information
    45  publications  and  systems.  Once  a manufacturer makes such information
    46  available pursuant to this section, the manufacturer  shall  have  fully
    47  satisfied  its  obligations  under  this  section  and thereafter not be
    48  responsible for the content and functionally of  aftermarket  diagnostic
    49  tools or service information systems.
    50    2.  (a) Commencing in model year 2018, except as provided in paragraph
    51  (c) of this subdivision, manufacturers of motor vehicles  sold  in  this
    52  state shall provide access to their onboard diagnostic and repair infor-
    53  mation  system,  as  required under this section, using an off-the-shelf
    54  personal computer with sufficient memory, processor speed,  connectivity
    55  and other capabilities as specified by the vehicle manufacturer and: (i)
    56  a non-proprietary vehicle interface device that complies with the Socie-

        A. 4066                             4
     1  ty of Automotive Engineers SAE J2534, the International Standards Organ-
     2  izations  ISO 22900 or any successor to SAE J2534 or ISO 22900 as may be
     3  accepted or published by the Society  of  Automotive  Engineers  or  the
     4  International  Standards  Organizations; or, (ii) an on-board diagnostic
     5  and repair information system  integrated  and  entirely  self-contained
     6  within  the  vehicle  including, but not limited to, service information
     7  systems integrated into an onboard  display,  or  (iii)  a  system  that
     8  provides  direct  access  to  on-board diagnostic and repair information
     9  through a non-proprietary vehicle interface such as ethernet,  universal
    10  serial  bus  or  digital versatile disc. Each manufacturer shall provide
    11  access to the same on-board diagnostic and repair information  available
    12  to  their dealers, including technical updates to such on-board systems,
    13  through such non-proprietary interfaces as referenced in this paragraph.
    14    (a-1) Nothing in this article shall be construed to require  a  dealer
    15  to  use  the  non-proprietary  vehicle interface (i.e., SAE J2534 or ISO
    16  22900 vehicle interface device)  specified  in  paragraph  (a)  of  this
    17  subdivision,  nor shall this article be construed to prohibit a manufac-
    18  turer from developing a proprietary vehicle diagnostic and reprogramming
    19  device, provided that (i) the manufacturer also complies with  paragraph
    20  (a)  of  this  subdivision,  and  (ii)  the manufacturer also makes this
    21  device available to motor vehicle repair shops upon fair and  reasonable
    22  terms, and otherwise complies with paragraph (a) of this subdivision.
    23    (b)  No manufacturer shall be prohibited from making proprietary tools
    24  available to dealers if such tools are for a specific specialized  diag-
    25  nostic  or repair procedure developed for the sole purpose of a customer
    26  service campaign meeting the requirements set out in 49  CFR  579.5,  or
    27  performance of a specific technical service bulletin or recall after the
    28  vehicle  was  produced,  and  where  original  vehicle  design  was  not
    29  originally intended for direct  interface  through  the  non-proprietary
    30  interface  set  out  in  paragraph (a) of this subdivision. Provision of
    31  such proprietary tools under  this  paragraph  shall  not  constitute  a
    32  violation  of  this  article  even  if  such tools provide functions not
    33  available through the interface set  forth  in  paragraph  (a)  of  this
    34  subdivision,  provided  such proprietary tools are also available to the
    35  aftermarket upon fair and reasonable terms. Nothing in this  subdivision
    36  shall  authorize manufacturers to exclusively develop proprietary tools,
    37  without a non-proprietary equivalent as set forth in  paragraph  (a)  of
    38  this  subdivision, for diagnostic or repair procedures that fall outside
    39  the provisions of this subdivision or to otherwise operate in  a  manner
    40  inconsistent with the requirements of paragraph (a) of this subdivision.
    41    (c)  Manufacturers  of  motor  vehicles sold in this state may exclude
    42  diagnostic, service and repair information necessary to reset an immobi-
    43  lizer system or security-related  electronic  modules  from  information
    44  provided  to  owners  and  motor vehicle repair shops. If excluded under
    45  this paragraph, the information necessary to reset an immobilizer system
    46  or security-related electronic modules shall be obtained by  owners  and
    47  motor  vehicle repair shops through the secure data release model system
    48  as currently used by the National Automotive Service Task Force or other
    49  known, reliable and accepted systems.
    50    (d) With the exception of telematics diagnostic and repair information
    51  that is provided to dealers, necessary to diagnose and repair a  custom-
    52  er's vehicle, and not otherwise available to a motor vehicle repair shop
    53  via  the  tools specified in paragraphs (a) and (b) of this subdivision,
    54  nothing in this article shall apply to telematics services or any  other
    55  remote  or information service, diagnostic or otherwise, delivered to or
    56  derived from the vehicle by mobile  communications;  provided,  however,

        A. 4066                             5
     1  that nothing in this article shall be construed to abrogate a telematics
     2  services or other contract that exists between a manufacturer or service
     3  provider,  a  motor  vehicle owner, and/or a dealer. For the purposes of
     4  this  chapter, telematics services shall include, but not be limited to,
     5  automatic airbag deployment and crash notification, remote  diagnostics,
     6  navigation,  stolen  vehicle  location, remote door unlock, transmitting
     7  emergency and vehicle location information to  public  safety  answering
     8  points  as  well as any other service integrating vehicle location tech-
     9  nology and  wireless  communications.  Nothing  in  this  article  shall
    10  require a manufacturer or a dealer to disclose to any person the identi-
    11  ty of existing customers or customer lists.
    12    3. Nothing in this article shall be construed to require a manufactur-
    13  er to divulge a trade secret.
    14    4.  Notwithstanding  any  general  or special law or any rule or regu-
    15  lation to the contrary, no provision in  this  article  shall  be  read,
    16  interpreted  or  construed  to  abrogate,  interfere with, contradict or
    17  alter the terms of any provision of article seventeen-A of this  chapter
    18  or  the terms of any franchise agreement executed and in force between a
    19  dealer and a manufacturer including, but not limited to, the performance
    20  or provision of warranty or recall repair work by a dealer on behalf  of
    21  a  manufacturer pursuant to such franchise agreement; provided, however,
    22  that any provision in such  a  franchise  agreement  that  purports  the
    23  waive,  avoid,  restrict  or limit a manufacturer's compliance with this
    24  article shall be void and unenforceable.
    25    5. Nothing in this article shall be construed to require manufacturers
    26  or dealers to provide an owner or motor vehicle repair  shop  access  to
    27  non-diagnostic  and  repair  information provided by a manufacturer to a
    28  dealer, or by a dealer to a manufacturer pursuant  to  the  terms  of  a
    29  franchise agreement.
    30    6.  (a)  In addition to any other remedies that may be available under
    31  law, a violation of this chapter shall be deemed to be a  deceptive  act
    32  or  practice in the conduct of trade or commerce in violation of section
    33  three hundred forty-nine of the general business law.
    34    (b) A motor vehicle repair shop or owner who believes that a  manufac-
    35  turer has failed to provide information or a tool required by this arti-
    36  cle must notify the manufacturer in writing through the National Automo-
    37  tive  Service  Task Force (NASTF) service information request process or
    38  its successor organization or process, and give the manufacturer  thirty
    39  days  from  the time the manufacturer receives the complaint to cure the
    40  failure. If the manufacturer cures said compliant within the cure  peri-
    41  od,  damages  shall be limited to actual damages in any subsequent liti-
    42  gation.
    43    (c) If the manufacturer fails to respond to the notice provided  here-
    44  in, or if a motor vehicle repair shop or owner is not satisfied with the
    45  manufacturer's  cure,  the motor vehicle repair shop or owner may file a
    46  complaint in a court of competent  jurisdiction.  Such  complaint  shall
    47  include,  but  not  be limited to the following: (i) written information
    48  confirming that the complainant has visited  the  relevant  manufacturer
    49  website  and  attempted  to effect a proper repair utilizing information
    50  provided on such website, including communication with customer  assist-
    51  ance via the manufacturer's toll-free call-in assistance, if made avail-
    52  able  by such manufacturer; (ii) written information confirming that the
    53  complainant has obtained and utilized the relevant  manufacturer's  scan
    54  or  diagnostic  tool  necessary  for  such repair; and (iii) evidence of
    55  manufacturer notification pursuant to paragraph (b) of this subdivision.

        A. 4066                             6
     1    (d) Except in the instance of a dispute arising between  a  franchisor
     2  manufacturer and its franchisee dealer related to either party's compli-
     3  ance  with  an  existing  franchise  agreement  which  is required to be
     4  resolved pursuant to article seventeen-A of this chapter, a dealer shall
     5  have  all  the  rights and remedies provided in this article, including,
     6  but not limited to, in the instance when exercising rights and  remedies
     7  as allowed as a motor vehicle repair shop under article twelve-A of this
     8  title.
     9    § 2. This act shall take effect on the one hundred eightieth day after
    10  it shall have become a law.
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