Digital fair repair list of exclusions equipment removal provision

1.1 A bill for an act​ 1.2 relating to commerce; removing equipment from the list of exclusions for purposes​ 1.3 of digital fair repair; amending Minnesota Statutes 2023 Supplement, section​ 1.4 325E.72, subdivisions 2, 6, 8.​ 1.5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:​ 1.6 Section 1. Minnesota Statutes 2023 Supplement, section 325E.72, subdivision 2, is amended​ 1.7 to read:​ 1.8 Subd. 2. Definitions. (a) For the purposes of this section, the following terms have the​ 1.9 meanings given.​ 1.10 (b) "Authorized repair provider" means an individual or business who is unaffiliated​ 1.11 with an original equipment manufacturer and who has: (1) an arrangement with the original​ 1.12 equipment manufacturer, for a definite or indefinite period, under which the original​ 1.13 equipment manufacturer grants to the individual or business a license to use a trade name,​ 1.14 service mark, or other proprietary identifier to offer diagnostic, maintenance, or repair​ 1.15 services for digital electronic equipment under the name of the original equipment​ 1.16 manufacturer; or (2) an arrangement with the original equipment manufacturer to offer​ 1.17 diagnostic, maintenance, or repair services for digital electronic equipment on behalf of the​ 1.18 original equipment manufacturer. An original equipment manufacturer that offers diagnostic,​ 1.19 maintenance, or repair services for the original equipment manufacturer's digital electronic​ 1.20 equipment is considered an authorized repair provider with respect to the digital electronic​ 1.21 equipment if the original equipment manufacturer does not have an arrangement described​ 1.22 in this paragraph with an unaffiliated individual or business.​ 1.23 (c) "Contractor" has the meaning given in section 326B.31, subdivision 14.​ 1​Section 1.​ 24-07148 as introduced​02/23/24 REVISOR RSI/KR​ SENATE​ STATE OF MINNESOTA​ S.F. No. 4407​NINETY-THIRD SESSION​ (SENATE AUTHORS: KUPEC)​ OFFICIAL STATUS​D-PG​DATE​ Introduction and first reading​02/29/2024​ Referred to Commerce and Consumer Protection​ 2.1 (d) "Cybersecurity" means the practice of protecting networks, devices, and data from​ 2.2 unauthorized access or criminal use and the practice of ensuring the confidentiality, integrity,​ 2.3 and availability of information.​ 2.4 (e) "Digital electronic equipment" or "equipment" means any hardware product that​ 2.5 depends, in whole or in part, on digital electronics embedded in or attached to the product​ 2.6 in order for the product to function, for which the original equipment manufacturer makes​ 2.7 available tools, parts, or documentation to authorized repair providers.​ 2.8 (f) "Documentation" means a manual, diagram, reporting output, service code description,​ 2.9 schematic diagram, or similar information made available by an original equipment​ 2.10 manufacturer to an authorized repair provider to facilitate diagnostic, maintenance, or repair​ 2.11 services for digital electronic equipment.​ 2.12 (g) "Embedded software" means any programmable instructions provided on firmware​ 2.13 delivered with digital electronic equipment, or with a part for the equipment, in order to​ 2.14 operate the equipment. Embedded software includes all relevant patches and fixes made by​ 2.15 the manufacturer of the equipment or part in order to operate the equipment.​ 2.16 (h) "Fair and reasonable terms" means, with respect to:​ 2.17 (1) parts for digital electronic equipment offered by an original equipment manufacturer:​ 2.18 (i) costs that are fair to both parties; and​ 2.19 (ii) terms under which an original equipment manufacturer offers the part to an authorized​ 2.20 repair provider and which:​ 2.21 (A) is not conditioned on or imposing a substantial obligation to use or restrict the use​ 2.22 of the part to diagnose, maintain, or repair digital electronic equipment sold, leased, or​ 2.23 otherwise supplied by the original equipment manufacturer, including a condition that the​ 2.24 owner or independent repair provider become an authorized repair provider of the original​ 2.25 equipment manufacturer; or​ 2.26 (B) a requirement that a part be registered, paired with, or approved by the original​ 2.27 equipment manufacturer or an authorized repair provider before the part is operational or​ 2.28 prohibit an original equipment manufacturer from imposing any additional cost or burden​ 2.29 that is not reasonably necessary or is designed to be an impediment on the owner or​ 2.30 independent repair provider;​ 2.31 (2) tools, software, and documentation for digital electronic equipment offered by an​ 2.32 original equipment manufacturer:​ 2​Section 1.​ 24-07148 as introduced​02/23/24 REVISOR RSI/KR​ 3.1 (i) costs that are equivalent to the lowest actual cost for which the original equipment​ 3.2 manufacturer offers the tool, software, or documentation to an authorized repair provider,​ 3.3 including any discount, rebate, or other financial incentive offered to an authorized repair​ 3.4 provider; and​ 3.5 (ii) terms that are equivalent to the most favorable terms under which an original​ 3.6 equipment manufacturer offers the tool, software, or documentation to an authorized repair​ 3.7 provider, including the methods and timeliness of delivery of the tool, software, or​ 3.8 documentation, do not impose on an owner or an independent repair provider:​ 3.9 (A) a substantial obligation to use or restrict the use of the tool, software, or​ 3.10 documentation to diagnose, maintain, or repair digital electronic equipment sold, leased, or​ 3.11 otherwise supplied by the original equipment manufacturer, including a condition that the​ 3.12 owner or independent repair provider become an authorized repair provider of the original​ 3.13 equipment manufacturer; or​ 3.14 (B) a requirement that a tool be registered, paired with, or approved by the original​ 3.15 equipment manufacturer or an authorized repair provider before the part or tool is operational;​ 3.16 and​ 3.17 (3) documentation offered by an original equipment manufacturer: that the documentation​ 3.18 is made available by the original equipment manufacturer at no charge, except that when​ 3.19 the documentation is requested in physical printed form, a charge may be included for the​ 3.20 reasonable actual costs of preparing and sending the copy.​ 3.21 (i) "Independent repair provider" means an individual or business operating in Minnesota​ 3.22 that: (1) does not have an arrangement described in paragraph (b) with an original equipment​ 3.23 manufacturer; (2) is not affiliated with any individual or business that has an arrangement​ 3.24 described in paragraph (b); and (3) is engaged in providing diagnostic, maintenance, or​ 3.25 repair services for digital electronic equipment. An original equipment manufacturer or,​ 3.26 with respect to the original equipment manufacturer, an individual or business that has an​ 3.27 arrangement with the original equipment manufacturer or is affiliated with an individual or​ 3.28 business that has an arrangement with that original equipment manufacturer, is considered​ 3.29 an independent repair provider for purposes of the instances the original equipment​ 3.30 manufacturer engages in diagnostic, maintenance, or repair services for digital electronic​ 3.31 equipment that is not manufactured by or sold under the name of the original equipment​ 3.32 manufacturer.​ 3​Section 1.​ 24-07148 as introduced​02/23/24 REVISOR RSI/KR​ 4.1 (j) "Manufacturer of motor vehicle equipment" means a business engaged in the business​ 4.2 of manufacturing or supplying components used to manufacture, maintain, or repair a motor​ 4.3 vehicle.​ 4.4 (k) "Motor vehicle" means a vehicle that is: (1) designed to transport persons or property​ 4.5 on a street or highway; and (2) certified by the manufacturer under (i) all applicable federal​ 4.6 safety and emissions standards, and (ii) all requirements for distribution and sale in the​ 4.7 United States. Motor vehicle does not include a recreational vehicle or an auto home equipped​ 4.8 for habitation.​ 4.9 (l) "Motor vehicle dealer" means an individual or business that, in the ordinary course​ 4.10 of business: (1) is engaged in the business of selling or leasing new motor vehicles to an​ 4.11 individual or business pursuant to a franchise agreement; (2) has obtained a license under​ 4.12 section 168.27; and (3) is engaged in providing diagnostic, maintenance, or repair services​ 4.13 for motor vehicles or motor vehicle engines pursuant to a franchise agreement.​ 4.14 (m) "Motor vehicle manufacturer" means a business engaged in the business of​ 4.15 manufacturing or assembling new motor vehicles.​ 4.16 (n) "Original equipment manufacturer" means any individual or business that, in the​ 4.17 normal course of business, is engaged in the business of selling or leasing to any individual​ 4.18 or business new digital electronic equipment manufactured by or on behalf of the original​ 4.19 equipment manufacturer.​ 4.20 (o) "Owner" means an individual or business that owns or leases digital electronic​ 4.21 equipment purchased or used in Minnesota.​ 4.22 (p) "Part" means any replacement part or assembly of parts, either new or used, made​ 4.23 available by an original equipment manufacturer to authorized repair providers to facilitate​ 4.24 the maintenance or repair of digital electronic equipment manufactured or sold by the original​ 4.25 equipment manufacturer.​ 4.26 (q) "Parts pairing" means a manufacturer's use of software to identify component parts​ 4.27 through a unique identifier.​ 4.28 (r) "Personally identifiable information" means any representation of information that​ 4.29 permits the identity of an individual to whom the information applies to be reasonably​ 4.30 inferred by either direct or indirect means.​ 4.31 (r) (s) "Tool" means any software program, hardware implement, or other apparatus​ 4.32 used for diagnosis, maintenance, or repair of digital electronic equipment, including software​ 4.33 or other mechanisms that provide, program, pair a part, calibrate functionality, or perform​ 4​Section 1.​ 24-07148 as introduced​02/23/24 REVISOR RSI/KR​ 5.1 any other function required to repair the original equipment or part back to fully functional​ 5.2 condition, including updates.​ 5.3 (s) (t) "Trade secret" has the meaning given in section 325C.01, subdivision 5.​ 5.4 (t) (u) "Video game console" means a computing device, such as a console machine, a​ 5.5 handheld console device, or another device or system, and its components and peripherals,​ 5.6 that is primarily used by consumers for playing video games but which is neither a general​ 5.7 nor an all-purpose computer. A general or all-purpose computer includes but is not limited​ 5.8 to a desktop computer, laptop, tablet, or cell phone.​ 5.9 Sec. 2. Minnesota Statutes 2023 Supplement, section 325E.72, subdivision 6, is amended​ 5.10 to read:​ 5.11 Subd. 6. Exclusions. (a) Nothing in this section applies to: (1) a motor vehicle​ 5.12 manufacturer, manufacturer of motor vehicle equipment, or motor vehicle dealer acting in​ 5.13 that capacity; or (2) any product or service of a motor vehicle manufacturer, manufacturer​ 5.14 of motor vehicle equipment, or motor vehicle dealer acting in that capacity.​ 5.15 (b) Nothing in this section applies to manufacturers or distributors of a medical device​ 5.16 as defined in the Federal Food, Drug, and Cosmetic Act, United States Code, title 21, section​ 5.17 301 et seq., or a digital electronic product or software manufactured for use in a medical​ 5.18 setting including diagnostic, monitoring, or control equipment or any product or service​ 5.19 that the manufacturer or distributor of a medical device offers.​ 5.20 (c) Nothing in this section applies to manufacturers, distributors, importers, or dealers​ 5.21 of any off-road or nonroad equipment, including without limitation farm and utility tractors;​ 5.22 farm implements; farm machinery; forestry equipment; industrial equipment; utility​ 5.23 equipment; construction equipment; compact construction equipment; road-building​ 5.24 equipment; electronic vehicle charging infrastructure equipment; mining equipment; turf,​ 5.25 yard, and garden equipment; outdoor power equipment; portable generators; marine,​ 5.26 all-terrain sports, and recreational vehicles, including without limitation racing vehicles;​ 5.27 stand-alone or integrated stationary or mobile internal combustion engines; generator sets​ 5.28 and fuel cell power; power tools; and any tools, technology, attachments, accessories,​ 5.29 components, and repair parts for any of the foregoing.​ 5.30 (d) Nothing in this section shall be construed to require any original equipment​ 5.31 manufacturer or authorized repair provider to make available any parts, tools, or​ 5.32 documentation required for the diagnosis, maintenance, or repair of a video game console​ 5.33 and its components and peripherals.​ 5​Sec. 2.​ 24-07148 as introduced​02/23/24 REVISOR RSI/KR​ 6.1 (e) Nothing in this section applies to an energy storage system, as defined in section​ 6.2 216B.2422, subdivision 1, paragraph (f).​ 6.3 (f) Nothing in this section requires an original equipment manufacturer to make available​ 6.4 parts, documentation, or tools related to cybersecurity, except as necessary for the repair or​ 6.5 maintenance of equipment. Notwithstanding anything in this section to the contrary, an​ 6.6 original equipment manufacturer is not required to make available parts, documentation,​ 6.7 or tools related to cybersecurity which: (1) could reasonably give a recipient or third-party​ 6.8 access to trade secret or personally identifiable information owned or possessed by an​ 6.9 original equipment manufacturer for itself or on behalf of another person; (2) is protected​ 6.10 from disclosure under other laws of this state; or (3) could reasonably be used to compromise​ 6.11 cybersecurity or cybersecurity equipment.​ 6.12 (g) Nothing in this section applies to information technology equipment that is intended​ 6.13 for use in critical infrastructure, as defined in United States Code, title 42, section 5195c(e).​ 6.14 Sec. 3. Minnesota Statutes 2023 Supplement, section 325E.72, subdivision 8, is amended​ 6.15 to read:​ 6.16 Subd. 8. Applicability. This section applies to equipment: (1) manufactured for the first​ 6.17 time; and (2) first sold or used in Minnesota on or after July 1, 2021.​ 6​Sec. 3.​ 24-07148 as introduced​02/23/24 REVISOR RSI/KR​