Amd §399-nn, Gen Bus L; amd §3, Chap of 2022 (as proposed on S.4104-A & A.7006-B)
Relates to the sale of digital electronic equipment manufactured and first sold or used in New York on or after July 1, 2023; requires original equipment manufacturers to provide diagnostic and repair information; authorizes original equipment manufacturers to establish reasonable training and certification programs for independent repair providers and to offer parts to independent repair providers or owners with other parts where the individual components may pose a heightened safety risk; relates to the effectiveness thereof.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1285
SPONSOR: Fahy TITLE OF BILL:
An act to amend the general business law, in relation to the sale of
digital electronic equipment and providing diagnostic and repair infor-
mation; and to amend a chapter of the laws of 2022 amending the general
business law relating to the sale of digital electronic equipment and
providing diagnostic and repair information, as proposed in legislative
bills numbers S. 4104-A and A. 7006-B, in relation to the effectiveness
thereof
PURPOSE:
The purpose of this bill is to effectuate an amendment to Chapter 810 of
the Laws of 2022 (Approval message 93) related to enacting the Digital
Fair Repair Act requiring certain original equipment manufacturers
(OEMs) to make available to owners and independent repair providers
(IRPs) of digital electronic equipment (DEE), any documentation, parts,
and tools required for the diagnosis, maintenance, or repair of such
digital electronic equipment and their parts.
SUMMARY:
Section one makes technical changes to the underlying chapter to
further. specify to which OEMs requirements apply, and types of documen-
tation, tools, and parts they are required to provide, in addition to
requirements for IRPs. Significant changes include the following:
- adds conditions to the definition of DEE so that the requirements
apply to such products first manufactured, and first sold or used on or
after July 2023; and not to products that are the subject of business-
to-business or business-to-government sales and that otherwise are not
offered for sale by retailers.
- removes "security codes" and "passwords" from the definition of
"Documentation."
- provides clarity for the definition of "Fair and reasonable terms"
under which OEMs may be compensated for providing the documentation,
parts and tools to owners and IRPs.
- adds allowances for OEMs to offer pre-assembled parts to owners and
IRPs where individual components may pose a heightened safety risk.
- adds electronic bicycles and various commercial and industrial elec-
trical equipment to the list of products exempted from requirements.
- adds a requirement that IRPs provide information to their customers
with a written notice, and otherwise post on their website and place of
business, that they are not (OEM-)authorized repair providers and that
consumers should review the terms and conditions of their equipment
warranties and implications on them of repairs not performed by OEMs or
their authorized repair providers.
Section two amends Section 3 of Chapter 810 of the Laws of 2022 to
reflect that the law applies to DEE manufactured for the first time and
first sold or used in the state on or after July 1, 2023.
Section three sets forth the effective date.
JUSTIFICATION:
Chapter 810 of the Laws of 2022 requires OEMs of digital electronic
products to provide non-trade secret diagnostic & repair information,
parts, and tools to owners and IRPs of such products. Currently, some
OEMs limit availability of the means to repair the products they make
and sell to consumers by withholding access to needed documents, parts,
and tools except to only themselves, employees, or repairers they have
authorized. Although sometimes this may be done for sensible purposes,
many times it may not, making it unfair to consumers and capable inde-
pendent repairers, and increasing chances that a product will premature-
ly end up in the waste stream.
Therefore, the chapter addresses requiring this access for owners and
IRPs in those situations in which manufacturers needlessly control how
consumers can make or obtain repairs for their products. This bill
makes technical changes intended to more explicitly delineate to which
OEMs the requirements of the law will apply, and the types of documenta-
tion, tools, and parts they are required to provide. Furthermore,
requirements are added for IRPs to provide notice that they are not
OEM-authorized repair providers and that consumers should be aware of
how this may affect product warranties, and other information on consum-
er rights and protections under federal law.
PRIOR LEGISLATIVE HISTORY:
This bill is a chapter amendment to Chapter 810 of the Laws of 2022.
FISCAL IMPLICATIONS:
Undetermined.
EFFECTIVE DATE:
This act shall take effect on the same date and in the same manner as a
chapter of the laws of 2022, in relation to requiring OEMs to provide
documentation, parts, and tools for owners and IRPs of digital electron-
ic equipment for making repairs to such equipment, as proposed in legis-
lative bills S.4104-A and A.7006-B, takes effect.
STATE OF NEW YORK
________________________________________________________________________
1285
2023-2024 Regular Sessions
IN ASSEMBLY
January 13, 2023
___________
Introduced by M. of A. FAHY -- read once and referred to the Committee
on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to the sale of
digital electronic equipment and providing diagnostic and repair
information; and to amend a chapter of the laws of 2022 amending the
general business law relating to the sale of digital electronic equip-
ment and providing diagnostic and repair information, as proposed in
legislative bills numbers S. 4104-A and A. 7006-B, in relation to the
effectiveness thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 399-nn of the general business law, as added by a
2 chapter of the laws of 2022 amending the general business law relating
3 to the sale of digital electronic equipment and providing diagnostic and
4 repair information, as proposed in legislative bills numbers S. 4104-A
5 and A. 7006-B, is amended to read as follows:
6 § 399-nn. Sale of digital electronic equipment; diagnostic and repair
7 information. 1. Definitions. For the purposes of this section, the
8 following terms shall have the following meanings:
9 (a) "Authorized repair provider" means an individual or business who
10 has an arrangement with the original equipment manufacturer under which
11 the original equipment manufacturer grants to the individual or business
12 a license to use a trade name, service mark, or other proprietary iden-
13 tifier for the purposes of offering the services of diagnosis, mainte-
14 nance, or repair of digital electronic equipment under the name of the
15 original equipment manufacturer, or other arrangement with the original
16 equipment manufacturer to offer such services on behalf of the original
17 equipment manufacturer. [An original equipment manufacturer who offers
18 the services of diagnosis, maintenance, or repair of its own digital
19 electronic equipment, and who does not have an arrangement described in
20 this subdivision with an unaffiliated individual or business, shall be
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04221-01-3
A. 1285 2
1 considered an authorized repair provider with respect to such equip-
2 ment.]
3 (b) "Digital electronic equipment" or "equipment" means any hardware
4 product [with a value over ten dollars, adjusted annually by the rate of
5 change in the consumer price index as reported by the bureau of labor
6 statistics of the United States department of labor,] manufactured for
7 the first time, and first sold or used in New York on or after July
8 first, two thousand twenty-three, that depends for its functioning, in
9 whole or in part, on digital electronics embedded in or attached to the
10 product for which the original equipment manufacturer makes available
11 tools, parts, and documentation either through authorized repair provid-
12 ers, its own employees, or any authorized third-party providers.
13 "Digital electronic equipment" or "equipment" does not include any prod-
14 uct sold under a specific business-to-government or business-to-business
15 contract, which is not otherwise offered for sale directly by a retail
16 seller.
17 (c) "Documentation" means any manual, diagram, reporting output,
18 service code description, schematic diagram, [security codes, pass-
19 words,] or similar kinds of information [used in] required for effecting
20 the services of diagnosis, maintenance, or repair of digital electronic
21 equipment.
22 (d) "Fair and reasonable terms" means making available parts, tools,
23 or documentation as follows:
24 (i) With respect to documentation required for repair, that such
25 documentation is made available by the original equipment manufacturer
26 at no charge, except that, when the documentation is requested in phys-
27 ical printed form, a charge may be included for the reasonable actual
28 costs of preparing and sending the copy.
29 (ii) With respect to tools, that such tools are made available by the
30 original equipment manufacturer at no charge and without requiring
31 authorization [or internet access] for use or operation of such tool, or
32 imposing impediments to access or use of the tool to diagnose, maintain,
33 or repair [and enable full functionality of] digital electronic equip-
34 ment using parts provided by the original equipment manufacturer in
35 accordance with this section, [or] and in a reasonably timely manner
36 [that impairs the efficient and cost-effective performance of any such
37 diagnosis, maintenance, or repair], except that, when such tool is
38 requested in physical form, a charge may be included for the reasonable,
39 actual costs of procuring, preparing and sending such tool.
40 (iii) With respect to parts, that such parts are made available by the
41 original equipment manufacturer, either directly or indirectly through
42 an authorized repair provider or authorized third-party provider, to
43 independent repair providers and owners at reasonable costs and terms
44 [that are equivalent to the most favorable costs and terms under which
45 an original equipment manufacturer offers the part to an authorized
46 repair provider] and which:
47 A. [accounts for any discount, rebate, convenient and timely means of
48 delivery, means of enabling fully restored and updated functionality,
49 rights of use, or other incentive or preference the original equipment
50 manufacturer offers to an authorized repair provider, or any additional
51 cost, burden, or impediment the original equipment manufacturer imposes
52 on an owner or independent repair provider;
53 B. is] are not conditioned on or imposing a substantial obligation or
54 restriction that is not reasonably necessary for enabling the owner or
55 independent repair provider to engage in the diagnosis, maintenance, or
A. 1285 3
1 repair of digital electronic equipment made by or on behalf of the
2 original equipment manufacturer; and
3 [C. is] B. are not conditioned on an arrangement described in para-
4 graph (a) of this subdivision.
5 (iv) Such parts, tools, and documentation shall be made available to
6 an authorized repair provider, and shall further be made available by an
7 authorized repair provider to any independent repair provider or owner,
8 provided that such authorized repair provider is contractually and prac-
9 tically permitted by the original equipment manufacturer to sell such
10 parts, tools, and documentation to any independent repair provider or
11 owner, and provided further that such original equipment manufacturer
12 shall not:
13 A. retaliate against or hinder the ability of any authorized repair
14 provider to sell such parts, tools, or documentation through any means,
15 including advertising restrictions or product allocation limitations
16 unrelated to legitimate product shortages; or
17 B. condition or impose a substantial obligation or restriction that is
18 not reasonably necessary for enabling the owner or independent repair
19 provider to engage in the diagnosis, maintenance, or repair of digital
20 electronic equipment made by or on behalf of the original equipment
21 manufacturer.
22 (e) "Independent repair provider" means an individual or business
23 operating in this state, that does not have an arrangement described in
24 paragraph (a) of this subdivision with an original equipment manufactur-
25 er, and who is engaged in the services of diagnosis, maintenance, or
26 repair of digital electronic equipment.
27 (f) "Manufacturer of motor vehicle equipment" means a business engaged
28 in the business of manufacturing or supplying components that are used
29 in the manufacture, maintenance, or repair of a motor vehicle.
30 (g) "Medical device" means an instrument, apparatus, implement,
31 machine, contrivance, implant, or other similar or related article,
32 including a component part, or accessory, as defined in the federal
33 Food, Drug and Cosmetic Act, 21 USC, Section 321 (h) as amended from
34 time to time, which is intended for use in the diagnosis of disease or
35 other conditions, or in the cure, mitigation, treatment, or prevention
36 of disease, in man or other animals.
37 (h) "Motor vehicle" means a vehicle that is designed for transporting
38 persons or property on a street or highway and is certified by the
39 manufacturer under all applicable federal safety and emissions standards
40 and requirements for distribution and sale in the United States.
41 (i) "Motor vehicle dealer" means an individual or business who, in the
42 ordinary course of business, is engaged in the business of selling or
43 leasing motor vehicles to an individual or business pursuant to a fran-
44 chise agreement, has obtained a license under the vehicle and traffic
45 law, and is engaged in the services of diagnosis, maintenance, or repair
46 of motor vehicles or motor vehicle engines pursuant to such franchise
47 agreement.
48 (j) "Motor vehicle manufacturer" means a business engaged in the manu-
49 facturing or assembling of motor vehicles.
50 (k) "Original equipment manufacturer" means any individual or business
51 that, in the normal course of business, is engaged in the business of
52 selling or leasing digital electronic equipment manufactured by or on
53 behalf of itself, to any individual or business.
54 (l) "Owner" means an individual or business that owns or leases
55 digital electronic equipment purchased or used in this state.
A. 1285 4
1 (m) "Part" or "parts" means any replacement part or assembly of parts,
2 either new or used, made available by an original equipment manufacturer
3 for purposes of effecting the services of maintenance or repair of
4 digital electronic equipment manufactured or sold by the original equip-
5 ment manufacturer. Part does not include printed board assemblies that
6 may allow device cloning in violation of 18 U.S.C. Section 1029 or other
7 applicable law.
8 (n) "Tool" means any software program, hardware implement, or other
9 apparatus used for diagnosis, maintenance, or repair of digital elec-
10 tronic equipment, including software or other mechanisms that provide,
11 program, [or] pair a part, calibrate functionality, or perform any other
12 function required to [bring] repair or update the original equipment or
13 part back to fully functional condition[, including any updates].
14 (o) "Repair" means any act needed to restore digital electronic equip-
15 ment or equipment to fully working order.
16 (p) "Maintenance" means any act necessary to keep currently working
17 digital electronic equipment or equipment in fully working order.
18 (q) "Diagnosis" means the process of identifying the issue or issues
19 that cause digital electronic equipment or equipment to not be in fully
20 working order.
21 (r) "Modifications" or "modify" means any alteration to digital elec-
22 tronic equipment that is not maintenance and not a repair.
23 2. Requirements. [(a) For digital electronic equipment and parts for
24 such equipment that are sold or used in this state, an] An original
25 equipment manufacturer shall make available to any independent repair
26 provider and owner of digital electronic equipment manufactured by or on
27 behalf of or sold by such original equipment manufacturer, on fair and
28 reasonable terms, any documentation, parts, and tools required for the
29 diagnosis, maintenance, or repair of such digital electronic equipment
30 and parts [for such equipment] that are manufactured for the first time,
31 and first sold or used in New York on or after July first, two thousand
32 twenty-three. Such documentation, parts, and tools shall be made avail-
33 able either directly by [such] an original equipment manufacturer or via
34 an authorized repair provider. An original equipment manufacturer who,
35 in the regular course of business, offers to an owner the services of
36 diagnosis, maintenance or repair of its own digital electronic equip-
37 ment, and who does not have an arrangement described in paragraph (a) of
38 subdivision one of this section with an unaffiliated individual or busi-
39 ness, shall be considered an authorized repair provider with respect to
40 such equipment.
41 [(b) For equipment that contains an electronic security lock or other
42 security-related function, the original equipment manufacturer shall
43 make available to any owner and independent repair provider, on fair and
44 reasonable terms, any special documentation, tools, and parts needed to
45 access and reset the lock or function when disabled in the course of
46 diagnosis, maintenance, or repair of such equipment. Such documenta-
47 tion, tools, and parts may be made available through appropriate secure
48 release systems.]
49 3. Limitations. (a) Nothing in this section shall be construed to
50 require an original equipment manufacturer to divulge any trade secret
51 or license any intellectual property to any owner or independent service
52 provider.
53 (b) Nothing in this section shall be construed to alter the terms of
54 any arrangement described in paragraph (a) of subdivision one of this
55 section in force between an authorized repair provider and an original
56 equipment manufacturer, including, but not limited to, the performance
A. 1285 5
1 or provision of warranty or recall repair work by an authorized repair
2 provider on behalf of an original equipment manufacturer pursuant to
3 such arrangement, except that any provision in such terms that purports
4 to waive, avoid, restrict, or limit the original equipment manufactur-
5 er's obligations to comply with this section shall be void and unen-
6 forceable.
7 (c) Nothing in this section shall be construed to require an original
8 equipment manufacturer or an authorized repair provider to provide to an
9 owner or independent repair provider access to information, other than
10 documentation, that is provided by the original equipment manufacturer
11 to an authorized repair provider pursuant to the terms of an arrangement
12 described in paragraph (a) of subdivision one of this section.
13 (d) Nothing in this section shall be construed to require an original
14 equipment manufacturer or authorized repair provider to make available
15 any parts, tools or documentation for the purposes of modifying or
16 making modifications to any digital electronic equipment.
17 (e) Nothing in this section shall be construed to require an original
18 equipment manufacturer or authorized repair provider to make available
19 any parts, tools, or documentation required for the diagnosis, mainte-
20 nance, or repair of public safety communications equipment, the intended
21 use of which is for emergency response or prevention purposes by an
22 emergency service organization such as a police, fire or emergency
23 medical services agency.
24 (f) Nothing in this section shall be construed to require any original
25 equipment manufacturer or authorized repair provider to make available
26 any parts, tools, or documentation required for the diagnosis, mainte-
27 nance, or repair of digital electronic equipment in a manner that is
28 inconsistent with or in violation of any federal law, such as gaming and
29 entertainment consoles, related software and components.
30 (g) Nothing in this section shall be construed to require any original
31 equipment manufacturer or authorized repair provider to make available
32 any parts, tools, or documentation required for the diagnosis, mainte-
33 nance, or repair of any home appliance that has a digital electronic
34 product embedded within it, including, but not limited to, refrigera-
35 tors, ovens, microwaves, air conditioning [and], heating units, and
36 security devices or alarm systems including any related software and
37 components.
38 (h) Nothing in this section shall prevent an original equipment
39 manufacturer from establishing reasonable training and certification
40 programs for independent repair providers, however, no independent
41 repair provider shall be required to complete any such training or
42 certification program as a condition to be covered by the rights granted
43 under this chapter.
44 (i) Nothing in this section shall prevent an original equipment
45 manufacturer from offering parts, such as integrated batteries, to inde-
46 pendent repair providers or owners pre-assembled with other parts rather
47 than as individual components, where the individual components may pose
48 a heightened safety risk if installed improperly.
49 (j) Nothing in this section shall require an original equipment
50 manufacturer to make available special documentation, tools, and parts
51 that would disable or override anti-theft security measures set by the
52 owner of the equipment without the owner's authorization.
53 4. Exclusions. Nothing in this section shall apply to:
54 (a) a motor vehicle manufacturer, manufacturer of motor vehicle equip-
55 ment, or motor vehicle dealer acting in such capacity, or to any product
A. 1285 6
1 or service of a motor vehicle manufacturer, manufacturer of motor vehi-
2 cle equipment, or motor vehicle dealer acting in such capacity;
3 (b) a medical device, as defined in this section, or a digital elec-
4 tronic product found in a medical setting including diagnostic, monitor-
5 ing, or control equipment or any product or service that they offer; or
6 (c) a manufacturer, distributor, importer, or dealer of any off-road
7 (non-road) equipment, including but not limited to, farm and utility
8 tractors, farm implements, farm machinery, forestry equipment, indus-
9 trial equipment, utility equipment, construction equipment, compact
10 construction equipment, mining equipment, turf, yard and garden equip-
11 ment, outdoor power equipment (including portable generators), marine,
12 all-terrain sports and recreational vehicles (including racing vehi-
13 cles), stand-alone or integrated stationary or mobile internal
14 combustion engines, other power sources, (including without limitation,
15 generator sets, electric/battery and fuel cell power), power tools, and
16 any tools, technology, attachments, accessories, components and repair
17 parts for any of the foregoing.
18 (d) commercial and industrial electrical equipment (including power
19 distribution equipment, such as medium/low voltage switchgear and trans-
20 formers, power control equipment, such as medium/low voltage motor
21 control and drives, power quality equipment, such as uninterruptable
22 power supplies, remote power panels, power distribution units and
23 static/transfer switches) and any tools, technology, attachments, acces-
24 sories, components and repair parts for any of the foregoing.
25 (e) an electronic bicycle manufacturer, distributor, importer, retail-
26 er or dealer.
27 5. No original equipment manufacturer or authorized repair provider
28 shall be liable for any damage or injury caused to any digital electron-
29 ic equipment [by an independent repair provider or owner], person, or
30 property which occurs [during the course] as a result of repair, diagno-
31 sis, maintenance, or modification performed by an independent repair
32 provider or owner, including but not limited to, any indirect, inci-
33 dental, special or consequential damages; any loss of data, privacy or
34 profits; or any inability to use, or reduced functionality of, the
35 digital electronic equipment.
36 6. Before repairing digital electronic equipment, independent repair
37 providers shall provide to any customer, and publish on their website
38 and the place of business, a written notice that contains the following
39 information:
40 (a) The independent repair provider is not an authorized repair
41 provider for the equipment;
42 (b) The consumer should review the terms and conditions of any warran-
43 ty for the equipment, as repairs not performed by an authorized repair
44 provider may affect the warranty;
45 (c) Warranties for consumer products are governed by the federal
46 Magnuson-Moss Warranty Act (15 U.S.C. ch. 50 § 2301), which gives
47 consumers rights and protections that apply over conflicting provisions
48 in the warranty;
49 (d) Under the Magnuson-Moss Warranty Act, a warranty cannot require
50 that maintenance and repairs be performed only by an authorized repair
51 provider; and
52 (e) Under the Magnuson-Moss Warranty Act, if damage to equipment is
53 shown to be caused by equipment not offered or sold by the original
54 equipment manufacturer or by faulty repair performed by a non-authorized
55 repair provider, that damage may not be covered by the warranty, but the
56 warranty may otherwise remain in effect.
A. 1285 7
1 7. Enforcement by the attorney general. (a) Whenever the attorney
2 general shall believe from evidence satisfactory to the attorney general
3 that any person, firm, corporation or association or agent or employee
4 thereof has engaged in or is about to engage in any acts or practices in
5 violation of this section, the attorney general may bring an action in
6 the name and on behalf of the people of the state of New York to enjoin
7 such unlawful acts or practices and to obtain restitution of any moneys
8 or property obtained directly or indirectly by any such acts or prac-
9 tices in violation of this section. In such proceeding preliminary
10 relief may be granted under article sixty-three of the civil practice
11 law and rules.
12 (b) Except as provided herein, before any violation of this section is
13 sought to be enjoined, the attorney general shall give such person,
14 firm, corporation, or association against whom such proceeding is
15 contemplated notice and an opportunity to show in writing, within five
16 business days after the delivery of such notice, why proceedings should
17 not be instituted against such person, firm, corporation, or associ-
18 ation. Such notice by the attorney general shall be delivered by certi-
19 fied mail and by first-class mail with proof of mailing. In any proceed-
20 ing in which the attorney general seeks preliminary relief, such notice
21 shall not be required upon a finding by the attorney general that such
22 notice and opportunity is not in the public interest.
23 (c) In connection with any proposed proceeding under this section, the
24 attorney general is authorized to take proof and make a determination of
25 the relevant facts, and to issue subpoenas in accordance with the civil
26 practice law and rules.
27 (d) This subdivision shall apply to all acts or practices declared to
28 be in violation of this section, whether or not subject to any other law
29 of this state, and shall not supersede, amend or repeal any other law of
30 this state under which the attorney general is authorized to take any
31 action or conduct any inquiry.
32 (e) Any person, firm, corporation or association or agent or employee
33 thereof who engages in any acts or practices in violation of this
34 section shall be liable to a civil penalty of not more than five hundred
35 dollars for each violation, which shall accrue to the state of New York
36 and may be recovered in a civil action brought by the attorney general.
37 (f) Except in the instance of a dispute arising between an original
38 equipment manufacturer and an authorized repair provider related to
39 either party's compliance with an existing authorized repair agreement,
40 an authorized repair provider shall have all the rights and remedies
41 provided in this section.
42 § 2. Section 3 of a chapter of the laws of 2022 amending the general
43 business law relating to the sale of digital electronic equipment and
44 providing diagnostic and repair information, as proposed in legislative
45 bills numbers S. 4104-A and A. 7006-B is amended to read as follows:
46 § 3. This act shall take effect one year after it shall have become a
47 law and shall apply to digital electronic equipment, manufactured for
48 the first time, and first sold or used in New York on or after July 1,
49 2023.
50 § 3. This act shall take effect immediately; provided, however that
51 section one of this act shall take effect on the same date and in the
52 same manner as a chapter of the laws of 2022 amending the general busi-
53 ness law relating to the sale of digital electronic equipment and
54 providing diagnostic and repair information, as proposed in legislative
55 bills numbers S. 4104-A and A. 7006-B, takes effect.
