SF 64

as introduced - 91st Legislature (2019 - 2020) Posted on 01/17/2019 02:44pm

A bill for an act
relating to commerce; establishing fair repair requirements for manufacturers of
digital electronic products; proposing coding for new law in Minnesota Statutes,
chapter 325E.

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

Section 1.

new text begin [325E.72] FAIR REPAIR REQUIREMENTS.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) As used in this section, the terms in this subdivision have
the meanings given them.
new text end

new text begin (b) "Authorized repair provider" means an oral or written arrangement for a definite or
indefinite period in which a manufacturer or distributor transfers to a separate business
organization or individual license to use a trade name, service mark, or relative characteristic
for the purposes of offering repair services under the manufacturer's name.
new text end

new text begin (c) "Digital electronic product" means a part or machine containing a microprocessor
originally manufactured for distribution and sale in the United States.
new text end

new text begin (d) "Documentation" means manuals, diagrams, reporting output, or service code
descriptions provided to the authorized repair provider for repair purposes.
new text end

new text begin (e) "Embedded software" means programmable instructions provided on firmware
delivered with the digital electronic product for product operation purposes, including all
relevant patches and fixes made by the manufacturer for product operation. Embedded
software includes but is not limited to "basic internal operating system," "internal operating
system," "machine code," "assembly code," "root code," and "microcode."
new text end

new text begin (f) "Fair and reasonable terms" means an equitable price in light of relevant factors,
including but not limited to:
new text end

new text begin (1) the net cost to the authorized repair provider for similar parts obtained from
manufacturers, less any discounts, rebates, or other incentive programs;
new text end

new text begin (2) the cost to the manufacturer for preparing and distributing the parts or product,
excluding any research and development costs incurred in designing and implementing,
upgrading, or altering the product, but including amortized capital costs for the preparation
and distribution of the parts; and
new text end

new text begin (3) the price charged by other manufacturers for similar parts or products.
new text end

new text begin (g) "Independent repair provider" means an individual or business operating in Minnesota
that is not affiliated with a manufacturer or a manufacturer's authorized dealer of a digital
electronic product that is engaged in the diagnosis, service, maintenance, or repair of a
digital electronic product. A manufacturer's authorized dealer is considered an independent
repair provider when the dealer engages in the diagnosis, service, maintenance, or repair of
a digital electronic product that is not affiliated with the manufacturer.
new text end

new text begin (h) "Manufacturer" means an individual or business who, in the ordinary course of its
business, is engaged in the business of selling or leasing new digital electronic products to
consumers or other end users and is engaged in the diagnosis, service, maintenance, or repair
of the products sold or leased.
new text end

new text begin (i) "Owner" means an individual or business who lawfully acquires a digital electronic
product purchased or used in Minnesota.
new text end

new text begin (j) "Remote diagnostics" means a remote data transfer function between a digital
electronic product and a repair services provider, including for remote diagnostic, settings
control, or location identification purposes.
new text end

new text begin (k) "Service parts" means replacement parts, either new or used, made available by the
manufacturer to the authorized repair provider for repair purposes.
new text end

new text begin (l) "Trade secret" means anything tangible, intangible, or electronically stored or kept
that constitutes, represents, evidences, or records intellectual property, including (1) secret
or confidentially held designs, processes, procedures, formulas, inventions or improvements,
(2) secrets of confidentially held scientific, technical, merchandising, production, financial,
business or management information, or (3) anything within the definition of United States
Code, title 18, section 1839, paragraph (3).
new text end

new text begin Subd. 2. new text end

new text begin Fair repair requirements. new text end

new text begin (a) A manufacturer of digital electronic products
sold or used in the state must:
new text end

new text begin (1) make available diagnostic and repair information, including repair technical updates,
diagnostic software, service access passwords, updates and corrections to firmware, and
related documentation, to independent repair facilities or owners of products manufactured
by the manufacturer free of charge and in the same manner the manufacturer makes the
information available to its authorized repair providers; and
new text end

new text begin (2) make available service parts, including updates to the firmware of the parts, to the
product owner or the authorized agent of the owner for purchase on fair and reasonable
terms. Nothing in this clause requires the manufacturer to sell service parts if the service
parts are no longer available to the manufacturer or the authorized repair channel of the
manufacturer.
new text end

new text begin (b) Manufacturers that sell diagnostic, service, or repair information to an independent
repair provider or a third-party provider in a format that is standardized with other
manufacturers, and on terms and conditions more favorable than the manner and the terms
and conditions pursuant to which an authorized repair provider obtains the same diagnostic,
service, or repair information, are prohibited from requiring an authorized repair provider
to purchase diagnostic, service, or repair information in a proprietary format, unless the
proprietary format includes diagnostic, service, repair, or dealership operations information
or functionality that is not available in a standardized format.
new text end

new text begin (c) Manufacturers of digital electronic products sold or used in Minnesota must make
available all diagnostic repair tools, incorporating the same diagnostic repair and remote
diagnostic capabilities that the manufacturer makes available to its own repair or engineering
staff or any authorized repair providers, to owners and independent repair facilities for
purchase on fair and reasonable terms.
new text end

new text begin (d) Manufacturers that provide repair information to aftermarket tool, diagnostics, or
third-party service information publications and systems have fully satisfied the obligations
under this section and are not responsible for the content and functionality of aftermarket
diagnostic tools or service information systems.
new text end

new text begin (e) Manufacturers of digital electronic products sold or used in Minnesota to provide
security-related functions are prohibited from excluding diagnostic, service, and repair
information necessary to reset a security-related electronic function from information
provided to owners and independent repair facilities. If necessary for security purposes,
manufacturers may provide information necessary to reset and unlock system or
security-related electronic modules to owners and independent repair facilities through an
appropriate secure data release system.
new text end

new text begin Subd. 3. new text end

new text begin No requirement to divulge trade secret. new text end

new text begin This section does not require the
manufacturer to divulge a trade secret.
new text end

new text begin Subd. 4. new text end

new text begin No abrogation of contract. new text end

new text begin Notwithstanding any law or rule to the contrary,
this section must not be read, interpreted, or construed to abrogate, interfere with, contradict,
or alter the terms of an agreement executed between an authorized repair provider and a
manufacturer, including but not limited to performing warranty or recall repair work by an
authorized repair provider on behalf of a manufacturer pursuant to the authorized repair
agreement. Except in the case of a dispute arising between a manufacturer and its authorized
repair provider related to either party's compliance with an existing repair agreement, an
authorized repair provider has all the rights and remedies provided in this section.
new text end

new text begin Subd. 5. new text end

new text begin No access to certain information. new text end

new text begin This section does not require manufacturers
or authorized repair providers to provide an owner or independent repair provider access
to nondiagnostic and nonrepair information provided by a manufacturer to an authorized
repair provider pursuant to the terms of an authorizing agreement.
new text end

new text begin Subd. 6. new text end

new text begin Right to cure. new text end

new text begin (a) An independent repair provider or owner who believes that
a manufacturer has failed to provide information, including documentation, updates to
firmware, safety and security corrections, diagnostics, documentation, or a tool required by
this section must notify the manufacturer in writing and give the manufacturer 30 days from
the date the manufacturer receives the complaint to cure the failure. If the manufacturer
cures the complaint within 30 days, damages in any subsequent litigation are limited to
actual damages.
new text end

new text begin (b) If the manufacturer fails to respond to the notice provided under paragraph (a), or if
an independent repair facility or owner is not satisfied with the manufacturer's cure, the
independent repair facility or owner may file a complaint in district court. The complaint
must include the following:
new text end

new text begin (1) written information confirming that the complainant has attempted to acquire and
use, through the then-available standard support function provided by the manufacturer, all
relevant diagnostics, tools, service parts, documentation, and updates to embedded software,
including communication with customer assistance via the manufacturer's then-standard
process, if made available by the manufacturer; and
new text end

new text begin (2) evidence the manufacturer was notified as required under paragraph (a).
new text end

new text begin Subd. 7. new text end

new text begin Enforcement. new text end

new text begin The attorney general must enforce this section under section
8.31.
new text end