HOUSE BILL NO. 3384 103RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE OVERCAST.
7345H.01I JOSEPH ENGLER, Chief Clerk
AN ACT To amend chapter 407, RSMo, by adding thereto two new sections relating to product repair requirements, with penalty provisions.
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 this section and section 407.653, the following terms mean: 2 (1) "Authorized repair provider", an individual or business that has an oral or 3 written arrangement for a definite or indefinite period in which a manufacturer or 4 distributor transfers to a separate business organization or individual licensee the right 5 to use a trade name, service mark, or other proprietary identifier for the purposes of 6 offering diagnosis, maintenance, or repair services under the name of the manufacturer. 7 A manufacturer that offers diagnosis, maintenance, or repair services for its product 8 and that does not have an arrangement with an individual or business described in this 9 subdivision shall be considered an authorized repair provider; 10 (2) "Documentation", manuals, diagrams, reporting output, schematic 11 diagrams, service code descriptions, or other information provided to the authorized 12 repair provider for the purposes of diagnosis, maintenance, repair, or refurbishment; 13 (3) "Embedded software", programmable instructions provided on firmware 14 delivered with certain products or parts for the purposes of product operation, 15 including all relevant safety, security, and defect patches and fixes made by the 16 manufacturer for this purpose. "Embedded software" shall include all software that 17 meets this definition, regardless of name including, but not limited to, assembly code,
EXPLANATION — 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. HB 3384 2
18 basic internal operating system, internal operating system, machine code, microcode, or 19 root code; 20 (4) "Fair and reasonable terms", an equitable price in light of relevant factors 21 including, but not limited to: 22 (a) The net cost to an authorized repair provider for similar parts, 23 documentation, or tools obtained from manufacturers less any discounts, rebates, or 24 other incentive programs; 25 (b) The cost to the manufacturer for preparing and distributing the parts or 26 product, excluding any research and development costs incurred in designing and 27 implementing, upgrading, or altering the product, but including amortized capital costs 28 for the preparation and distribution of the parts; and 29 (c) The price charged by other manufacturers for similar parts or products. 30 31 For documentation including, but not limited to, software updates, "fair and reasonable 32 terms" shall mean at no charge, except if documentation is requested in printed form, 33 the manufacturer may charge for reasonable costs of preparing and sending the 34 documentation. For software tools, "fair and reasonable terms" shall mean at no 35 charge and without requiring authorization, without requiring internet access, and 36 without impeding access or use of the product; 37 (5) "Farm machinery", any mobile equipment or machinery including, but not 38 limited to, tractors, trailers, combines, tillage implements, balers, unmanned aircraft 39 systems, off-road vehicles, and other equipment, including attachments and repair parts 40 thereof, used in the planting, cultivating, irrigating, harvesting, or ranching of 41 agricultural products, excluding self-propelled machines designed primarily for the 42 transportation of persons or property on a street or highway; 43 (6) "Independent repair provider", an individual or business operating in the 44 state that is not affiliated with a manufacturer or a manufacturer's authorized dealer of 45 a product but is engaged in the diagnosis, service, maintenance, or repair of products. A 46 manufacturer's authorized dealer shall be considered an independent repair provider if 47 the dealer engages in the diagnosis, service, maintenance, or repair of a product that is 48 not affiliated with the manufacturer; 49 (7) "Manufacturer", an individual or business that, in the ordinary course of its 50 business, is engaged in selling or leasing new products to consumers or other end users 51 and is engaged in the diagnosis, service, maintenance, or repair of those products; 52 (8) "Owner", an individual or business that lawfully acquires a product 53 purchased or used in the state; HB 3384 3
54 (9) "Product", any farm machinery regardless of the date purchased, whose 55 functioning depends, in whole or in part, on embedded or attached digital electronics; 56 (10) "Remote diagnostics", a remote data transfer function between certain 57 products and a provider of repair services, including for purposes of remote diagnostics, 58 settings controls, or location identification; 59 (11) "Service parts", replacement parts, either new or used, made available by 60 the manufacturer to an authorized repair provider for the purposes of repair; 61 (12) "Tools", any software program, hardware implement, or other apparatus 62 used for diagnosis, maintenance, or repair of a product including, but not limited to, 63 software or other mechanisms that provision, program, or pair a new part, calibrate 64 functionality, or perform a function required to bring the product back to fully 65 functional condition; 66 (13) "Trade secret", anything tangible, intangible, or electronically stored or 67 kept that constitutes, represents, evidences, or records intellectual property including, 68 but not limited to: 69 (a) Secret or confidentially held designs, processes, procedures, formulas, 70 inventions, or improvements; 71 (b) Secret or confidentially held scientific, technical, merchandising, production, 72 financial, business, or management information; or 73 (c) Any trade secret as that term is defined under paragraph (3) of 18 U.S.C. 74 Section 1839. 407.653. 1. Owners of products purchased or used in this state and independent 2 repair providers shall have the right to: 3 (1) Access the same diagnostic and repair information of products manufactured 4 by the manufacturer as the manufacturer makes available to authorized repair 5 providers. Such information shall be provided in the same manner and at the same time 6 as provided to authorized repair providers. Such information shall include, but not be 7 limited to, repair technical updates, diagnostic software, service access passwords, 8 updates and corrections to firmware, and related documentation; 9 (2) Purchase service parts, documentation, and tools available upon fair and 10 reasonable terms. Such service parts shall be made available in the same manner and at 11 the same time as given to authorized repair providers. Such service parts shall include 12 updates to firmware of parts; and 13 (3) Upon the purchase or acquisition of a product, receive a disclosure of any 14 changes or modifications made to the product by previous owners. 15 HB 3384 4
16 Nothing in this section shall require the manufacturer to sell service parts if the service 17 parts are no longer available to the manufacturer or the authorized repair channel of 18 the manufacturer. 19 2. An authorized repair provider shall have the right to purchase diagnostic, 20 service, or repair information of a product in a format standardized with other 21 manufacturers instead of a proprietary format from a manufacturer if the 22 manufacturer sells diagnostic, service, or repair information to independent repair 23 providers or third-party providers in such a standardized format or if the manufacturer 24 offers terms and conditions more favorable to independent repair providers or third- 25 party providers than the manner and the terms and conditions that are available to an 26 authorized repair provider. However, this subsection shall not apply if the proprietary 27 format includes diagnostic, service, repair, or dealership operations information or 28 functionality not available in a standardized format. 29 3. Owners and independent repair providers shall have the right to purchase 30 from manufacturers of products sold or used in this state all diagnostic repair tools, 31 incorporating the same diagnostic repair and remote diagnostic capabilities that the 32 manufacturer makes available to its own repair or engineering staff or any authorized 33 repair providers, on fair and reasonable terms. 34 4. For equipment that contains an electronic security lock or other security- 35 related function, the manufacturer shall make available to owners and independent 36 repair providers, on fair and reasonable terms, any special documentation, tools, and 37 parts needed to disable the lock or function and to reset it when disabled in the course of 38 diagnosis, maintenance, or repair of the equipment. The documentation, tools, and 39 parts may be made available through an appropriate secure system. 40 5. Manufacturers that provide repair information to aftermarket tools, 41 diagnostics, or third-party service information publications and systems have fully 42 satisfied their obligations under this section and thereafter, are not responsible for the 43 content and functionality of aftermarket diagnostic tools or service information systems. 44 6. If a manufacturer has made an express warranty with respect to a product 45 and the wholesale price of the equipment is one hundred dollars or more, the 46 manufacturer shall provide the parts, tools, and documentation needed to repair the 47 product during the warranty period at an equitable price, with convenient delivery, and 48 with an enabled functionality, considering: 49 (1) The actual cost to the manufacturer to prepare and distribute the part, tool, 50 or documentation, exclusive of any research and development costs incurred; 51 (2) The ability of owners or independent repair providers to afford the part, tool, 52 or documentation; and HB 3384 5
53 (3) The means by which the part, tool, or documentation is distributed. 54 7. Manufacturers of products sold or used in the state for the purposes of 55 providing security-related functions shall not exclude diagnostic, service, or repair 56 information necessary to reset a security-related electronic function from information 57 provided to owners and independent repair providers. If necessary for security 58 purposes, manufacturers shall provide information necessary to reset and unlock system 59 or security-related electronic modules to owners and independent repair providers 60 through an appropriate secure data release system. 61 8. Nothing in this section shall require the manufacturer to divulge a trade secret 62 to an owner or to an independent repair provider, except as necessary to provide 63 documentation, parts, and tools on fair and reasonable terms. 64 9. Notwithstanding any law or rule to the contrary, this section shall not be read, 65 interpreted, or construed to abrogate, interfere with, contradict, or alter the terms of an 66 agreement executed between an authorized repair provider and a manufacturer 67 including, but not limited to, performing warranty or recall repair work by an 68 authorized repair provider on behalf of a manufacturer pursuant to the authorized 69 repair agreement. Except in the case of a dispute arising between a manufacturer and 70 its authorized repair provider related to either party's compliance with an existing 71 repair agreement, an authorized repair provider shall have all the rights and remedies 72 provided in this section. 73 10. This section shall not require manufacturers or authorized repair providers 74 to provide an owner or independent repair provider access to nondiagnostic and 75 nonrepair information provided by a manufacturer to an authorized repair provider 76 under the agreement between the manufacturer and the authorized repair provider. 77 11. (1) An independent repair provider or owner who believes that a 78 manufacturer has failed to provide information including, but not limited to, 79 documentation, updates to firmware, safety and security corrections, diagnostics, 80 documentation, or a tool required by this section shall notify the manufacturer in 81 writing and give the manufacturer thirty days from the date the manufacturer receives 82 the complaint to cure the failure. If the manufacturer cures the complaint within thirty 83 days, damages are limited to actual damages in any subsequent litigation. 84 (2) If the manufacturer fails to respond in a timely manner to the notice 85 described under subdivision (1) of this subsection or if an independent repair provider 86 or an owner is not satisfied with the manufacturer's cure, the independent repair 87 provider or the owner may file a complaint in district court. The complaint shall 88 include: HB 3384 6
89 (a) Written information confirming that the complainant attempted to acquire 90 and use, through the then-available standard support function provided by the 91 manufacturer, all relevant diagnostics, tools, service parts, documentation, and updates 92 to embedded software, including communication with customer assistance via the 93 manufacturer's then-standard process, if made available by the manufacturer; and 94 (b) Evidence of manufacturer notification as required in subdivision (1) of this 95 subsection. 96 12. No manufacturer shall be required to provide any information or service 97 parts under subsection 1 of this section if the product for which the information or 98 service parts are sought is under a valid warranty for repair or replacement of the 99 product. 100 13. The attorney general shall enforce this section. Each violation of this section 101 shall be punishable by a ten-thousand-dollar fine, which shall be distributed to schools 102 under Article IX, Section 7 of the Constitution of Missouri. ✔
Statutes affected: