HF 4418

as introduced - 93rd Legislature (2023 - 2024) Posted on 02/28/2024 04:35pm

A bill for an act
relating to commerce; removing equipment from the list of exclusions for purposes
of digital fair repair; amending Minnesota Statutes 2023 Supplement, section
325E.72, subdivisions 2, 6, 8.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2023 Supplement, section 325E.72, subdivision 2, is amended
to read:

Subd. 2.

Definitions.

(a) For the purposes of this section, the following terms have the
meanings given.

(b) "Authorized repair provider" means an individual or business who is unaffiliated
with an original equipment manufacturer and who has: (1) an arrangement with the original
equipment manufacturer, for a definite or indefinite period, under which the original
equipment manufacturer grants to the individual or business a license to use a trade name,
service mark, or other proprietary identifier to offer diagnostic, maintenance, or repair
services for digital electronic equipment under the name of the original equipment
manufacturer; or (2) an arrangement with the original equipment manufacturer to offer
diagnostic, maintenance, or repair services for digital electronic equipment on behalf of the
original equipment manufacturer. An original equipment manufacturer that offers diagnostic,
maintenance, or repair services for the original equipment manufacturer's digital electronic
equipment is considered an authorized repair provider with respect to the digital electronic
equipment if the original equipment manufacturer does not have an arrangement described
in this paragraph with an unaffiliated individual or business.

(c) "Contractor" has the meaning given in section 326B.31, subdivision 14.

(d) "Cybersecurity" means the practice of protecting networks, devices, and data from
unauthorized access or criminal use and the practice of ensuring the confidentiality, integrity,
and availability of information.

(e) "Digital electronic equipment" or "equipment" means any hardware product that
depends, in whole or in part, on digital electronics embedded in or attached to the product
in order for the product to function, for which the original equipment manufacturer makes
available tools, parts, or documentation to authorized repair providers.

(f) "Documentation" means a manual, diagram, reporting output, service code description,
schematic diagram, or similar information made available by an original equipment
manufacturer to an authorized repair provider to facilitate diagnostic, maintenance, or repair
services for digital electronic equipment.

(g) "Embedded software" means any programmable instructions provided on firmware
delivered with digital electronic equipment, or with a part for the equipment, in order to
operate the equipment. Embedded software includes all relevant patches and fixes made by
the manufacturer of the equipment or part in order to operate the equipment.

(h) "Fair and reasonable terms" means, with respect to:

(1) parts for digital electronic equipment offered by an original equipment manufacturer:

(i) costs that are fair to both parties; and

(ii) terms under which an original equipment manufacturer offers the part to an authorized
repair provider and which:

(A) is not conditioned on or imposing a substantial obligation to use or restrict the use
of the part to diagnose, maintain, or repair digital electronic equipment sold, leased, or
otherwise supplied by the original equipment manufacturer, including a condition that the
owner or independent repair provider become an authorized repair provider of the original
equipment manufacturer; or

(B) a requirement that a part be registered, paired with, or approved by the original
equipment manufacturer or an authorized repair provider before the part is operational or
prohibit an original equipment manufacturer from imposing any additional cost or burden
that is not reasonably necessary or is designed to be an impediment on the owner or
independent repair provider;

(2) tools, software, and documentation for digital electronic equipment offered by an
original equipment manufacturer:

(i) costs that are equivalent to the lowest actual cost for which the original equipment
manufacturer offers the tool, software, or documentation to an authorized repair provider,
including any discount, rebate, or other financial incentive offered to an authorized repair
provider; and

(ii) terms that are equivalent to the most favorable terms under which an original
equipment manufacturer offers the tool, software, or documentation to an authorized repair
provider, including the methods and timeliness of delivery of the tool, software, or
documentation, do not impose on an owner or an independent repair provider:

(A) a substantial obligation to use or restrict the use of the tool, software, or
documentation to diagnose, maintain, or repair digital electronic equipment sold, leased, or
otherwise supplied by the original equipment manufacturer, including a condition that the
owner or independent repair provider become an authorized repair provider of the original
equipment manufacturer; or

(B) a requirement that a tool be registered, paired with, or approved by the original
equipment manufacturer or an authorized repair provider before the part or tool is operational;
and

(3) documentation offered by an original equipment manufacturer: that the documentation
is made available by the original equipment manufacturer at no charge, except that when
the documentation is requested in physical printed form, a charge may be included for the
reasonable actual costs of preparing and sending the copy.

(i) "Independent repair provider" means an individual or business operating in Minnesota
that: (1) does not have an arrangement described in paragraph (b) with an original equipment
manufacturer; (2) is not affiliated with any individual or business that has an arrangement
described in paragraph (b); and (3) is engaged in providing diagnostic, maintenance, or
repair services for digital electronic equipment. An original equipment manufacturer or,
with respect to the original equipment manufacturer, an individual or business that has an
arrangement with the original equipment manufacturer or is affiliated with an individual or
business that has an arrangement with that original equipment manufacturer, is considered
an independent repair provider for purposes of the instances the original equipment
manufacturer engages in diagnostic, maintenance, or repair services for digital electronic
equipment that is not manufactured by or sold under the name of the original equipment
manufacturer.

(j) "Manufacturer of motor vehicle equipment" means a business engaged in the business
of manufacturing or supplying components used to manufacture, maintain, or repair a motor
vehicle.

(k) "Motor vehicle" means a vehicle that is: (1) designed to transport persons or property
on a street or highway; and (2) certified by the manufacturer under (i) all applicable federal
safety and emissions standards, and (ii) all requirements for distribution and sale in the
United States. Motor vehicle does not include a recreational vehicle or an auto home equipped
for habitation.

(l) "Motor vehicle dealer" means an individual or business that, in the ordinary course
of business: (1) is engaged in the business of selling or leasing new motor vehicles to an
individual or business pursuant to a franchise agreement; (2) has obtained a license under
section 168.27; and (3) is engaged in providing diagnostic, maintenance, or repair services
for motor vehicles or motor vehicle engines pursuant to a franchise agreement.

(m) "Motor vehicle manufacturer" means a business engaged in the business of
manufacturing or assembling new motor vehicles.

(n) "Original equipment manufacturer" means any individual or business that, in the
normal course of business, is engaged in the business of selling or leasing to any individual
or business new digital electronic equipment manufactured by or on behalf of the original
equipment manufacturer.

(o) "Owner" means an individual or business that owns or leases digital electronic
equipment purchased or used in Minnesota.

(p) "Part" means any replacement part or assembly of parts, either new or used, made
available by an original equipment manufacturer to authorized repair providers to facilitate
the maintenance or repair of digital electronic equipment manufactured or sold by the original
equipment manufacturer.

(q) new text begin "Parts pairing" means a manufacturer's use of software to identify component parts
through a unique identifier.
new text end

new text begin (r) new text end "Personally identifiable information" means any representation of information that
permits the identity of an individual to whom the information applies to be reasonably
inferred by either direct or indirect means.

deleted text begin (r) deleted text end new text begin (s) new text end "Tool" means any software program, hardware implement, or other apparatus
used for diagnosis, maintenance, or repair of digital electronic equipment, including software
or other mechanisms that provide, program, pair a part, calibrate functionality, or perform
any other function required to repair the original equipment or part back to fully functional
condition, including updates.

deleted text begin (s) deleted text end new text begin (t) new text end "Trade secret" has the meaning given in section 325C.01, subdivision 5.

deleted text begin (t) deleted text end new text begin (u) new text end "Video game console" means a computing device, such as a console machine, a
handheld console device, or another device or system, and its components and peripherals,
that is primarily used by consumers for playing video games but which is neither a general
nor an all-purpose computer. A general or all-purpose computer includes but is not limited
to a desktop computer, laptop, tablet, or cell phone.

Sec. 2.

Minnesota Statutes 2023 Supplement, section 325E.72, subdivision 6, is amended
to read:

Subd. 6.

Exclusions.

(a) Nothing in this section applies to: (1) a motor vehicle
manufacturer, manufacturer of motor vehicle equipment, or motor vehicle dealer acting in
that capacity; or (2) any product or service of a motor vehicle manufacturer, manufacturer
of motor vehicle equipment, or motor vehicle dealer acting in that capacity.

(b) Nothing in this section applies to manufacturers or distributors of a medical device
as defined in the Federal Food, Drug, and Cosmetic Act, United States Code, title 21, section
301 et seq., or a digital electronic product or software manufactured for use in a medical
setting including diagnostic, monitoring, or control equipment or any product or service
that the manufacturer or distributor of a medical device offers.

(c) Nothing in this section applies to manufacturers, distributors, importers, or dealers
of any off-road or nonroad equipment, including without limitation farm and utility tractors;
farm implements; farm machinery; forestry equipment; industrial equipment; utility
equipment; construction equipment; compact construction equipment; road-building
equipment; deleted text begin electronic vehicle charging infrastructure equipment; deleted text end mining equipment; deleted text begin turf,
yard, and garden equipment; outdoor power equipment; portable generators; deleted text end marine deleted text begin ,
all-terrain sports, and recreational deleted text end vehicles deleted text begin , including without limitation racing vehicles;
stand-alone or integrated stationary or mobile internal combustion engines; generator sets
and fuel cell power; power tools deleted text end ; and any tools, technology, attachments, accessories,
components, and repair parts for any of the foregoing.

(d) Nothing in this section shall be construed to require any original equipment
manufacturer or authorized repair provider to make available any parts, tools, or
documentation required for the diagnosis, maintenance, or repair of a video game console
and its components and peripherals.

(e) Nothing in this section applies to an energy storage system, as defined in section
216B.2422, subdivision 1, paragraph (f).

(f) Nothing in this section requires an original equipment manufacturer to make available
parts, documentation, or tools related to cybersecurity, except as necessary for the repair or
maintenance of equipment. Notwithstanding anything in this section to the contrary, an
original equipment manufacturer is not required to make available parts, documentation,
or tools related to cybersecurity which: (1) could reasonably give a recipient or third-party
access to trade secret or personally identifiable information owned or possessed by an
original equipment manufacturer for itself or on behalf of another person; (2) is protected
from disclosure under other laws of this state; or (3) could reasonably be used to compromise
cybersecurity or cybersecurity equipment.

(g) Nothing in this section applies to information technology equipment that is intended
for use in critical infrastructure, as defined in United States Code, title 42, section 5195c(e).

Sec. 3.

Minnesota Statutes 2023 Supplement, section 325E.72, subdivision 8, is amended
to read:

Subd. 8.

Applicability.

This section applies to equipment new text begin : (1) manufactured for the first
time; and (2) first new text end sold new text begin or used in Minnesota new text end on or after July 1, 2021.