S06033 Summary:

BILL NOS06033
 
SAME ASSAME AS A06589
 
SPONSORTHOMAS
 
COSPNSR
 
MLTSPNSR
 
Add 198-d, Gen Bus L
 
Establishes the right to repair act to protect the rights of consumers to diagnose, service, maintain, and repair motor vehicles; requires original equipment manufacturers to make equipment available to independent repair providers under fair and reasonable terms.
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S06033 Actions:

BILL NOS06033
 
05/16/2019REFERRED TO CONSUMER PROTECTION
01/08/2020REFERRED TO CONSUMER PROTECTION
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S06033 Committee Votes:

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S06033 Floor Votes:

There are no votes for this bill in this legislative session.
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S06033 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6033
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                      May 16, 2019
                                       ___________
 
        Introduced  by  Sen.  THOMAS -- read twice and ordered printed, and when
          printed to be committed to the Committee on Consumer Protection
 
        AN ACT to amend the general business law, in  relation  to  establishing
          the  "Right to repair act" to require original equipment manufacturers
          to make certain equipment available to  independent  repair  providers
          under fair and reasonable terms
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. This act shall be known and may be cited as the  "Right  to
     2  repair act".
     3    § 2. The general business law is amended by adding a new section 198-d
     4  to read as follows:
     5    §  198-d. Right of consumers to diagnose, service, maintain and repair
     6  motor vehicles. (a) Definitions. As used in this section:
     7    (1) "Authorized repair provider" means: (i) a person or business  that
     8  has  an arrangement for a definite or indefinite period with an original
     9  equipment manufacturer in  which  the  original  equipment  manufacturer
    10  grants  to  a  person  or  business license to use a trade name, service
    11  mark, or related characteristic for  the  purposes  of  offering  repair
    12  services  under the name of the original equipment manufacturer; or (ii)
    13  a person or business retained by the original equipment manufacturer  to
    14  provide  refurbishing services for the original equipment manufacturer's
    15  product or products.
    16    (2) "Embedded software" means any programmable  instructions  provided
    17  on  firmware  delivered with the equipment for the purposes of equipment
    18  operation, including all relevant patches and fixes made by the original
    19  equipment manufacturer for this purpose, including, but not  limited  to
    20  synonyms  for  "Basic  internal  operating  system", "Internal operating
    21  system", "Machine code", "Assembly code", "Root code", and "Microcode".

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10510-01-9

        S. 6033                             2
 
     1    (3) "Equipment" means digital electronic equipment or a part for  such
     2  equipment  originally  manufactured  for  distribution  and  sale in the
     3  United States.
     4    (4)  "Fair  and reasonable terms" means an equitable price in light of
     5  relevant factors, including, but not limited to:
     6    (i) the net cost to the authorized repair provider for similar  infor-
     7  mation  obtained  from  an  original  equipment  manufacturer,  less any
     8  discounts, rebates, or other incentive programs;
     9    (ii) the cost to the original equipment manufacturer for preparing and
    10  distributing the information, excluding  any  research  and  development
    11  costs incurred in designing and implementing, upgrading, or altering the
    12  product,  but  including amortized capital costs for the preparation and
    13  distribution of the information;
    14    (iii) the price charged by other original equipment manufacturers  for
    15  similar information;
    16    (iv) the price charged by original equipment manufacturers for similar
    17  information  prior  to  the  launch  of  original equipment manufacturer
    18  websites;
    19    (v) the ability of aftermarket technicians  or  shops  to  afford  the
    20  information;
    21    (vi) the means by which the information is distributed;
    22    (vii)  the  extent  to  which  the  information is used, including the
    23  number of users, and the frequency, duration, and volume of use; and
    24    (viii) inflation.
    25    (5) "Firmware"  means  a  software  program  or  set  of  instructions
    26  programmed  on a hardware device to allow the device to communicate with
    27  other computer hardware.
    28    (6) "Independent repair provider" means a person or business operating
    29  in this state who is not affiliated with an original equipment  manufac-
    30  turer or an original equipment manufacturer's authorized repair provider
    31  and  who is engaged in the diagnosis, service, maintenance, or repair of
    32  equipment; provided, however, that for the purposes of this section,  an
    33  original  equipment  manufacturer  shall  be  considered  an independent
    34  repair provider for purposes  of  those  instances  when  such  original
    35  equipment  manufacturer  engages in the diagnosis, service, maintenance,
    36  or repair of equipment that is not affiliated with the  original  equip-
    37  ment manufacturer.
    38    (7)  "Motor vehicle" means any vehicle that is designed for transport-
    39  ing persons or property on a street or highway and is certified  by  the
    40  motor vehicle manufacturer under all applicable federal safety and emis-
    41  sions standards and requirements for distribution and sale in the United
    42  States. Motor vehicle does not include:
    43    (i) a motorcycle; or
    44    (ii)  a recreational vehicle or manufactured home equipped for habita-
    45  tion.
    46    (8) "Motor vehicle dealer" means any person or business  who,  in  the
    47  ordinary  course  of  business, is engaged in the business of selling or
    48  leasing new motor vehicles to a person or business pursuant to  a  fran-
    49  chise  agreement,  who has obtained a license as a motor vehicle dealer,
    50  and who is engaged in the diagnosis, service, maintenance, or repair  of
    51  motor  vehicles  or  motor  vehicle  engines  pursuant to such franchise
    52  agreement.
    53    (9) "Motor vehicle manufacturer" means any person or business  engaged
    54  in the business of manufacturing or assembling new motor vehicles.
    55    (10)  "Original  equipment  manufacturer" means any person or business
    56  who, in the ordinary course of his or her business, is  engaged  in  the

        S. 6033                             3
 
     1  business  of  selling or leasing new equipment to any person or business
     2  and is engaged in the diagnosis,  service,  maintenance,  or  repair  of
     3  equipment.
     4    (11)  "Owner"  means a person or business who owns or leases a digital
     5  electronic product purchased or used in this state.
     6    (12) "Part" or "service part" means any replacement part,  either  new
     7  or  used,  made  available by the original equipment manufacturer to the
     8  authorized repair provider for purposes of effecting repair.
     9    (13) "Remote diagnostics" means  any  remote  data  transfer  function
    10  between  equipment and the provider of repair services including for the
    11  purposes of remote diagnostics, settings controls, or location identifi-
    12  cation;
    13    (14) "Service parts" or "parts" means any  replacement  parts,  either
    14  new  or  used,  made available by the original equipment manufacturer to
    15  the authorized repair provider for the purposes of effecting repair.
    16    (b) Requirements. (1) For equipment and parts sold and  used  in  this
    17  state,  the  original equipment manufacturer of such equipment and parts
    18  shall:
    19    (i) make available to independent repair providers or owners of equip-
    20  ment manufactured by such original equipment manufacturer the same diag-
    21  nostic and repair information, including repair technical updates, sche-
    22  matic diagrams, updates, corrections to embedded software and safety and
    23  security patches timely, and for no charge or for the same charge and in
    24  the same format such original equipment manufacturer makes available  to
    25  its  authorized  repair provider and subcontract repair of refurbishment
    26  facilities; and
    27    (ii) make available for purchase by the owner, his or  her  authorized
    28  agent,  or  independent  repair  provider,  equipment  or service parts,
    29  inclusive of any updates to the embedded software of  the  equipment  or
    30  parts, upon fair and reasonable terms.
    31    Nothing  in this section shall require the original equipment manufac-
    32  turer to sell equipment or service parts if  the  parts  are  no  longer
    33  available  to  the  original  equipment  manufacturer  or the authorized
    34  repair provider of the original equipment manufacturer.
    35    (2) Any original equipment manufacturer  that  sells  any  diagnostic,
    36  service,  or  repair documentation to any independent repair provider or
    37  to any owner in a format that is standardized with other original equip-
    38  ment manufacturers, and on terms and conditions more favorable than  the
    39  manner  and  the  terms  and conditions pursuant to which the authorized
    40  repair provider obtains the same diagnostic, service, or repair documen-
    41  tation, shall be prohibited from requiring any authorized repair provid-
    42  er to continue purchasing diagnostic, service, or  repair  documentation
    43  in  a  proprietary format, unless such proprietary format includes diag-
    44  nostic, service, or repair documentation or functionality  that  is  not
    45  available in such standardized format.
    46    (3) (i) Each original equipment manufacturer of equipment sold or used
    47  in the state shall make available for purchase by owners and independent
    48  repair  providers  all  diagnostic  repair  tools incorporating the same
    49  diagnostic, repair, and remote  communications  capabilities  that  such
    50  original  equipment  manufacturer  makes  available to its own repair or
    51  engineering staff or any authorized repair provider.
    52    (ii) Each original equipment manufacturer shall offer such  tools  for
    53  sale to owners and independent repair providers upon fair and reasonable
    54  terms.  Each  original  equipment  manufacturer that provides diagnostic
    55  repair documentation to  aftermarket  diagnostic  tool,  diagnostic,  or
    56  third  party  service  information  publications  and systems shall have

        S. 6033                             4
 
     1  fully satisfied its obligations under this section and thereafter not be
     2  responsible for the content and functionality of such aftermarket  diag-
     3  nostic tools, diagnostics, or service information systems.
     4    (4) Original equipment manufacturer equipment or parts sold or used in
     5  the  state  for  the purpose of providing security-related functions may
     6  not exclude diagnostic, service, and  repair  information  necessary  to
     7  reset  a  security related electronic function from information provided
     8  to owners and independent repair  facilities.  If  excluded  under  this
     9  paragraph,  the  information necessary to reset an immobilizer system or
    10  security related electronic module shall be obtained by owners and inde-
    11  pendent repair facilities through the appropriate  secure  data  release
    12  systems.
    13    (c)  Limitations.  (1)  Notwithstanding any law, rule or regulation to
    14  the contrary, no provision of this section shall be  read,  interpreted,
    15  or construed to abrogate, interfere with, contradict, or alter the terms
    16  of  any  agreement  executed  and  in force between an authorized repair
    17  provider and an original  equipment  manufacturer,  including,  but  not
    18  limited  to,  the  performance or provision of warranty or recall repair
    19  work by an authorized repair provider on behalf of an original equipment
    20  manufacturer pursuant to such authorized repair agreement,  except  that
    21  any  provision  in  such an authorized repair agreement that purports to
    22  waive, avoid, restrict, or limit an  original  equipment  manufacturer's
    23  compliance with this section shall be void and unenforceable.
    24    (2)  Nothing  in  this  section shall be construed to require original
    25  equipment manufacturers or authorized repair  providers  to  provide  an
    26  owner or independent repair provider access to non-diagnostic and repair
    27  information  by  an  original  equipment  manufacturer  to an authorized
    28  repair provider pursuant to the terms of an authorizing agreement.
    29    (d) Enforcement. A violation of this section shall be  enforceable  by
    30  the  attorney  general  and  punishable  by  a fine of a maximum of five
    31  hundred dollars per incident.
    32    § 3. This act shall take effect on the one hundred twentieth day after
    33  it shall have become a law. Effective immediately, the addition,  amend-
    34  ment  and/or repeal of any rules or regulations necessary for the imple-
    35  mentation of this act on its effective date are authorized  to  be  made
    36  and completed on or before such effective date.
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