An act relating to establishing a right to repair powered wheelchairs

BILL AS INTRODUCED H.656 2024 Page 1 of 9 VT LEG #372233 v.1 H.656 1 Introduced by Representatives Burrows of West Windsor, Stone of 2 Burlington, and Rachelson of Burlington 3 Referred to Committee on 4 Date: 5 Subject: Commerce and trade; consumer protection; right to repair wheelchair 6 Statement of purpose of bill as introduced: This bill proposes to allow owners 7 of powered wheelchairs to repair their wheelchairs on their own or using an 8 independent repair provider. 9 An act relating to establishing a right to repair powered wheelchairs 10 It is hereby enacted by the General Assembly of the State of Vermont: 11 Sec. 1. 9 V.S.A. chapter 153 is added to read: 12 CHAPTER 153. RIGHT TO REPAIR WHEELCHAIR ACT 13 § 6201. TITLE 14 This chapter shall be known as the Right to Repair Wheelchair Act 15 § 6202. DEFINITIONS 16 As used in this chapter: 17 (1)(A) “Authorized repair provider” means a person who has an 18 arrangement for a definite or indefinite period in which an original equipment 19 manufacturer (OEM) grants to a separate person a license to use a trade name, 20 BILL AS INTRODUCED H.656 2024 Page 2 of 9 VT LEG #372233 v.1 service mark, or related characteristic for the purposes of offering repair 1 services under the name of the OEM or a person retained by the OEM to 2 provide refurbishing or repair services for the OEM’s products. 3 (B) An OEM who offers the services of diagnosis, maintenance, or 4 repair of its own digital electronic equipment, and who does not have an 5 arrangement described in subdivision (A) of this subdivision (1) with an 6 independent repair provider, shall be considered an authorized repair provider 7 with respect to the equipment. 8 (2) “Embedded software” means any programmable instructions 9 provided on firmware delivered with the equipment for the purposes of 10 equipment operation, including all relevant patches and fixes made by the 11 OEM for this purpose. 12 (3) “Equipment” means a powered wheelchair or parts of a powered 13 wheelchair. 14 (4) “Fair and reasonable terms” means making available parts, tools, or 15 documentation as follows: 16 (A) with respect to documentation required for repair, that 17 documentation is provided by the OEM at no charge, except that, when the 18 documentation is requested in physical printed form, a charge may be included 19 for the reasonable actual costs of preparing and sending the copy; 20 BILL AS INTRODUCED H.656 2024 Page 3 of 9 VT LEG #372233 v.1 (B) with respect to tools, that tools are made available by the OEM at 1 no charge and without requiring authorization or internet access for use or 2 operation of the tool, or imposing impediments to access or use of the tool to 3 diagnose, repair, and enable full functionality of digital electronic equipment, 4 except that when a tool is requested in physical form, a charge may be included 5 for the reasonable, actual costs of preparing and sending the tool; and 6 (C) with respect to parts, that parts are made available by the OEM, 7 either directly or indirectly through an authorized repair provider to 8 independent repair providers and owners at reasonable costs and terms that are 9 equivalent to the most favorable costs and terms under which an OEM offers 10 the part to an authorized repair provider and that: 11 (i) account for any discount, rebate, convenient and timely means 12 of delivery, means of enabling fully restored and updated functionality, rights 13 of use, or other incentive or preference the OEM offers to an authorized repair 14 provider, or any additional cost, burden, or impediment the OEM imposes on 15 an owner of independent repair provider; 16 (ii) is not conditioned on or imposing a substantial obligation or 17 restriction that is not reasonably necessary for enabling the owner or 18 independent repair provider to engage in the diagnosis, maintenance, or repair 19 of digital electronic equipment made by or on behalf of the OEM; and 20 BILL AS INTRODUCED H.656 2024 Page 4 of 9 VT LEG #372233 v.1 (iii) is not conditioned on an arrangement described in subdivision 1 (1) of this section. 2 (5) “Firmware” means a software program or set of instructions 3 programmed on a hardware device to allow the device to communicate with 4 other computer hardware. 5 (6) “Independent repair provider” means a person operating in this State 6 who is not affiliated with an OEM or an OEM’s authorized repair provider, 7 who does not have an arrangement with an OEM as described in subdivision 8 (1) of this section, and who is engaged in the diagnosis, service, maintenance, 9 or repair of equipment. 10 (7) “Original equipment manufacturer” or “OEM” means a person who, 11 in the ordinary course of business, is engaged in the business of selling or 12 leasing new equipment and who is engaged in the diagnosis, service, 13 maintenance, or repair of equipment. 14 (8) “Owner” means a person who owns or leases equipment. 15 (9) “Part” means a replacement part, either new or used, made available 16 by an OEM to an authorized repair provider for purposes of effecting repair. 17 (10) “Powered wheelchair” means a motorized wheeled device designed 18 for use by a person with a physical disability. 19 (11) “Trade secret” means anything tangible or intangible or 20 electronically stored or kept that constitutes, represents, evidences, or records 21 BILL AS INTRODUCED H.656 2024 Page 5 of 9 VT LEG #372233 v.1 intellectual property, including secret or confidentially held designs, processes, 1 procedures, formulas, inventions, or improvements; secret or confidentially 2 held scientific, technical, merchandising, production, financial, business, or 3 management information; or any other trade secret as set forth in 18 U.S.C. 4 § 1839. 5 § 6203. REQUIREMENTS 6 (a) For equipment used in this State, the OEM of the equipment shall make 7 available either directly by the OEM or through an authorized repair provider 8 to independent repair providers and owners of powered wheelchairs on fair and 9 reasonable terms: 10 (1) any documentation, parts, and tools required for the diagnosis, 11 maintenance, or repair of the powered wheelchairs, inclusive of any updates to 12 information; 13 (2) the purchase of equipment or service parts, inclusive of any updates 14 to the embedded software of the equipment or service parts; and 15 (3) the purchase of all diagnostic repair tools incorporating the same 16 diagnostic, repair, and remote communications capabilities that the OEM 17 makes available to its own repair or engineering staff or any authorized repair 18 provider without requiring authorization or internet access for use or operation 19 of the tool or imposing impediments to access or use of the tools to diagnose, 20 maintain, or repair and enable full functionality of digital electronic equipment. 21 BILL AS INTRODUCED H.656 2024 Page 6 of 9 VT LEG #372233 v.1 (b) For equipment that contains an electronic security lock or other 1 security-related function, the OEM shall make available to the owner or 2 independent repair provider, on fair and reasonable terms, any special 3 documentation, tools, or parts needed to access and reset the lock or function 4 when disabled in the course of diagnosis, maintenance, or repair of the 5 equipment. The documentation, tools, and parts may be made available 6 through an appropriate secure release system. 7 (c) An OEM that sells diagnostic, service, or repair documentation to an 8 independent repair provider or to an owner in a format that is standardized with 9 other OEMs, and on terms and conditions more favorable than the manner and 10 the terms and conditions pursuant to which an authorized repair provider 11 obtains the same diagnostic, service, or repair documentation, shall not require 12 an authorized repair provider to continue purchasing diagnostic, service, or 13 repair documentation in a proprietary format, unless the proprietary format 14 includes diagnostic, service, or repair documentation or functionality that is not 15 available in the standardized format. 16 (d) Parts, tools, and documentation shall be made available by the OEM to 17 an authorized repair provider and shall further be made available by an 18 authorized repair provider to any independent repair provider or owner, 19 provided that the authorized repair provider is contractually and practically 20 permitted by the OEM to sell the parts, tools, and documentation to any 21 BILL AS INTRODUCED H.656 2024 Page 7 of 9 VT LEG #372233 v.1 independent repair provider or owner and provided further that the OEM shall 1 not: 2 (1) retaliate against or hinder the ability of any authorized repair 3 provider to sell the parts, tools, or documentation through any means, 4 including advertising restrictions or product allocation limitations unrelated to 5 legitimate product shortages; or 6 (2) condition or impose a substantial obligation or restriction that is not 7 reasonably necessary for enabling the owner or independent repair provider to 8 engage in the diagnosis, maintenance, or repair of digital electronic equipment 9 made by or on behalf of the OEM. 10 (e) An OEM satisfies its obligations under this chapter if it provides 11 diagnostic repair documentation to aftermarket diagnostic tool manufacturers, 12 diagnostics providers, or service information publications and systems and is 13 not responsible for the content and function of aftermarket diagnostic tools, 14 diagnostics, or service information systems. 15 § 6204. EXCLUSIONS 16 (a) Nothing in this act shall require an OEM to divulge any trade secret to 17 any owner or independent service provider, except that an OEM shall not 18 refuse to make available to an independent repair provider or owner any 19 documentation, part, embedded software, firmware, or tool necessary to 20 BILL AS INTRODUCED H.656 2024 Page 8 of 9 VT LEG #372233 v.1 provide services on grounds that the documentation, part, embedded software, 1 firmware, or tool itself is a trade secret. 2 (b) Nothing in this act shall alter the terms of any arrangement in force 3 between an authorized repair provider and an OEM, including the performance 4 or provision of warranty or recall repair work by an authorized repair provider 5 on behalf of an OEM and pursuant to the arrangement, except that any 6 provision in the terms that purports to waive, avoid, restrict, or limit the 7 OEM’s obligations to comply with this chapter shall be void and 8 unenforceable. 9 (c) No OEM or authorized repair provider shall be liable for any damage or 10 injury caused to any powered wheelchair by an independent repair provider or 11 owner that occurs during the course of repair, diagnosis, or maintenance. 12 (d) This chapter does not require the OEM to sell equipment or service 13 parts if the parts are no longer available to the OEM or the authorized repair 14 provider of the OEM. 15 § 6205. ENFORCEMENT 16 (a) A person who violates this chapter commits an unfair and deceptive act 17 in trade and commerce in violation of section 2453 of this title. 18 (b) The Attorney General has the same authority to make rules, conduct 19 civil investigations, and enter into assurances of discontinuance as is provided 20 under chapter 63, subchapter 1 of this title. 21 BILL AS INTRODUCED H.656 2024 Page 9 of 9 VT LEG #372233 v.1 Sec. 2. APPLICABILITY 1 This act applies with respect to powered wheelchairs used in the State on or 2 after the effective date of this act. 3 Sec. 3. EFFECTIVE DATE 4 This act shall take effect on July 1, 2024. 5