Changes the laws regarding consumer products so that certain individuals and businesses have access to product repair information from certain manufacturers

FIRST REGULAR SESSION HOUSE BILL NO. 582 103RD GENERAL ASSEMBL Y INTRODUCED BY REPRESENT A TIVE WEBER. 0385H.01I DANA RADEMAN MILLER, Chief Clerk AN ACT T o amend chapter 407, RSMo, by adding thereto two new sections relating to product repair requirements, with a penalty provision. Be it enacted by the General Assembly of the state of Missouri, as follows: Section A. Chapter 407, RSMo, is amended by adding thereto two new sections, to be 2 known as sections 407.652 and 407.653, to read as follows: 407.652. As used in sections 407.652 and 407.653, the following terms mean: 2 (1) "Authorized re pair pr ovider", an individual or business that has an oral or 3 written arrangement for a definite or indefinite period in which a manufactur er or 4 distributor transfers to a separate business organization or individual license to use a 5 trade name, service mark, or r elative characteristic for the purposes of offering rep air 6 services under the name of the manufactur er; 7 (2) "Documentation", manuals, diagrams, r eporting output, schematic 8 diagrams, or service code descriptions pr ovided to the authorized rep air pr ovider for 9 the purposes of repa ir or ref urbishment; 10 (3) "Embedded software", pr ogrammable instructions pr ovided on firmwar e 11 deliver ed with certain pr oducts for the purposes of pr oduct operation, including all 12 r elevant safety , security , and defect patches and fixes made by the manufactur er for this 13 purpose. "Embedded softwar e" shall include all software that satisfies this definition 14 r egardless if called a differ ent name including, but not limited to, assembly code, basic 15 internal operating system, internal operating system, machine code, micr ocode, or root 16 code; EXPLANA TION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended to be omitted from the law . Matter in bold-face type in the above bill is proposed language. 17 (4) "Fair and reas onable terms", an equitable price in light of relev ant factors 18 including, but not limited to: 19 (a) The net cost to the authorized repa ir provi der for similar parts obtained 20 fr om manufactur ers less any discounts, rebates , or other incentive prog rams; 21 (b) The cost to the manufactur er for pr eparing and distributing the parts or 22 pr oduct, excluding any r esear ch and development costs incurr ed in designing and 23 implementing, upgrading, or altering the prod uct, but including amortized capital costs 24 for the pr eparation and distribution of the parts; and 25 (c) The price charged by other manufactur ers for similar parts or pr oducts; 26 (5) "Independent repai r pro vider", an individual or business operating in the 27 state that is not affiliated with a manufactur er or a manufactur er's authorized dealer of 28 a prod uct and that is engaged in the diagnosis, service, maintenance, or repa ir of a 29 pr oduct. A manufactur er's authorized dealer shall be consider ed an independent rep air 30 pr ovider if the dealer engages in the diagnosis, service, maintenance, or rep air of a 31 pr oduct that is not affiliated with the manufactur er; 32 (6) "Manufactur er", an individual or business that, in the ordinary course of its 33 business, is engaged in selling or leasing new pr oducts to consumers or other end users 34 and is engaged in the diagnosis, service, maintenance, or repa ir of those prod ucts; 35 (7) "Owner", an individual or business that lawfully acquires a pr oduct 36 pur chased or used in the state; 37 (8) "Prod uct", any pr oduct regard less of the date purch ased. "Prod uct" shall 38 exclude motor vehicles; 39 (9) "Remote diagnostics", a rem ote data-transfer function between certain 40 pr oducts and a pr ovider of repai r services, including for purposes of rem ote diagnostics, 41 settings control s, or location identification; 42 (10) "Service parts", repla cement parts, either new or used, made available by 43 the manufactur er to the authorized repair pr ovider for the purposes of r epair; 44 (1 1) "T rade secr et", anything tangible or intangible or electr onically stor ed or 45 kept that constitutes, r epresent s, evidences, or record s intellectual pro perty including, 46 but not limited to: 47 (a) Secr et or confidentially held designs, process es, proced ures, formulas, 48 inventions, or impr ovements; 49 (b) Secr et or confidentially held scientific, technical, mer chandising, pr oduction, 50 financial, business, or management information; or 51 (c) Any trade secr et as that term is defined under paragraph (3) of 18 U.S.C. 52 Section 1839. HB 582 2 407.653. 1. Owners of pr oducts pur chased or used in this state shall have the 2 right to: 3 (1) Access the same diagnostic and repai r information of pro ducts manufactur ed 4 by the manufactur er as the manufactur er makes available to independent rep air 5 pr oviders or authorized rep air provi ders. Such information shall be pr ovided in the 6 same manner and time as provi ded to authorized rep air provi ders. Such information 7 shall include, but not be limited to, re pair technical updates, diagnostic software, service 8 access passwords, updates and corr ections to firmwar e, and r elated documentation; and 9 (2) Purch ase service parts available upon fair and r easonable terms. Such 10 service parts shall be made available in the same manner and time as given to 11 authorized rep air provi ders. Such service parts shall include updates to firmwar e of 12 parts. 13 14 Nothing in this section shall r equir e the manufactur er to sell service parts if the service 15 parts are no longer available to the manufactur er or the authorized r epair channel of 16 the manufactur er . 17 2. An authorized repa ir pro vider shall have the right to pur chase diagnostic, 18 service, or repai r information in a format standardized with other manufactur ers 19 instead of a prop rietary format fr om a manufactur er if the manufactur er sells 20 diagnostic, service, or r epair information to independent rep air pr oviders or third-party 21 pr oviders in such a standardized format or if the manufactur er offers terms and 22 conditions mor e favorable to independent r epair pro viders or third-party pro viders 23 than the manner and the terms and conditions that are available to an authorized rep air 24 pr ovider . However , this subsection shall not apply if the pr oprietary format includes 25 diagnostic, service, repair , or dealership operations information or functionality not 26 available in a standardized format. 27 3. Owners and independent repai r pr oviders shall have the right to pur chase 28 fr om manufactur ers of prod ucts sold or used in this state all diagnostic repai r tools, 29 incorporating the same diagnostic rep air and rem ote diagnostic capabilities that the 30 manufactur er makes available to its own rep air or engineering staff or any authorized 31 r epair pr oviders, upon fair and reas onable terms. 32 4. Manufactur ers that pr ovide rep air information to aftermarket tools, 33 diagnostics, or third-party service information publications and systems have fully 34 satisfied their obligations under this section and ther eafter ar e not res ponsible for the 35 content and functionality of aftermarket diagnostic tools or service information systems. 36 5. Manufactur ers of pr oducts sold or used in the state for the purposes of 37 pr oviding security-r elated functions shall not exclude diagnostic, service, or rep air HB 582 3 38 information necessary to r eset a security-r elated electr onic function fr om information 39 pr ovided to owners and independent re pair pr oviders. If necessary for security 40 purposes, manufactur ers may prov ide information necessary to res et and unlock system 41 or security-r elated electr onic modules to owners and independent rep air pro viders 42 thr ough an appr opriate secure data rel ease system. 43 6. Nothing in this section shall requi re the manufactur er to divulge a trade 44 secr et. 45 7. Notwithstanding any law or rule to the contrary , this section shall not be rea d, 46 interpr eted, or construed to abrog ate, interfer e with, contradict, or alter the terms of an 47 agr eement executed between an authorized rep air provi der and a manufactur er 48 including, but not limited to, performing warranty or recal l rep air work by an 49 authorized repai r pro vider on behalf of a manufactur er pursuant to the authorized 50 r epair agreement. Except in the case of a dispute arising between a manufactur er and 51 its authorized repa ir prov ider rel ated to either party's compliance with an existing 52 r epair agr eement, an authorized repa ir pr ovider has all the rights and rem edies 53 pr ovided in this section. 54 8. This section shall not r equir e manufactur ers or authorized rep air prov iders to 55 pr ovide an owner or independent repa ir provi der access to nondiagnostic and nonr epair 56 information provi ded by a manufactur er to an authorized repai r provi der pursuant to 57 the terms of an authorizing agr eement. 58 9. (1) An independent r epair pr ovider or owner who believes that a 59 manufactur er has failed to pr ovide information, including documentation, updates to 60 firmwar e, safety and security correct ions, diagnostics, documentation, or a tool r equir ed 61 by this section, shall notify the manufactur er in writing and give the manufactur er 62 thirty days fr om the time the manufactur er recei ves the complaint to cur e the failure. If 63 the manufactur er cures the complaint within thirty days, damages are limited to actual 64 damages in any subsequent litigation. 65 (2) If the manufactur er fails to r espond to the notice pr ovided in subdivision (1) 66 of this subsection or if an independent repair provi der or owner is not satisfied with the 67 manufactur er's cur e, the independent repa ir pr ovider or owner may file a complaint in 68 cir cuit court. The complaint shall include: 69 (a) Written information confirming that the complainant attempted to acquire 70 and use, thr ough the then available standard support function provi ded by the 71 manufactur er , all re levant diagnostics, tools, service parts, documentation, and updates 72 to embedded softwar e, including communication with customer assistance via the 73 manufactur er's then standard pr ocess, if made available by the manufactur er; and HB 582 4 74 (b) Evidence of manufactur er notification as requ ired in subdivision (1) of this 75 subsection. 76 10. No manufactur er shall be requ ired to prov ide any information or service 77 parts under subsection 1 of this section if the pr oduct for which the information or 78 service parts ar e sought is under a valid warranty for rep air or rep lacement of the 79 pr oduct. 80 1 1. The attorney general shall enforce this section. Each violation of this section 81 shall be punishable by a five-hundr ed-dollar fine, which shall be deposited into the 82 school fund of the county in which the complaint ar ose. ✔ HB 582 5