[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4422 Introduced in Senate (IS)]
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118th CONGRESS
2d Session
S. 4422
To require original equipment manufacturers of digital electronic
equipment to make available certain documentation, diagnostic, and
repair information to independent repair providers, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 23, 2024
Mr. Lujan (for himself and Mr. Wyden) introduced the following bill;
which was read twice and referred to the Committee on Commerce,
Science, and Transportation
_______________________________________________________________________
A BILL
To require original equipment manufacturers of digital electronic
equipment to make available certain documentation, diagnostic, and
repair information to independent repair providers, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fair Repair Act''.
SEC. 2. REQUIREMENTS FOR ORIGINAL EQUIPMENT MANUFACTURERS.
(a) In General.--In the case of digital electronic equipment
manufactured by or on behalf of, sold, or otherwise supplied by an
original equipment manufacturer, the original equipment manufacturer
shall make available, for the purposes of diagnosis, maintenance, or
repair of such equipment, to independent repair providers and owners of
such equipment on fair and reasonable terms, documentation, parts, and
tools, inclusive of any updates.
(b) Prohibition on the Use of Certain Parts.--An original equipment
manufacturer shall not use parts pairing or any other mechanism to--
(1) prevent the installation or functioning of any
otherwise-functional part, including a non-manufacturer
approved replacement part or component;
(2) inhibit or reduce the functioning of any part, such
that replacement by an independent repair provider or the
device owner would cause the device to operate with reduced
functionality or performance;
(3) create false, misleading, deceptive, or non-dismissible
alerts or warnings about parts;
(4) charge additional fees or increased prices for future
repairs; or
(5) limit who can purchase parts or perform repair
services.
SEC. 3. ENFORCEMENT.
(a) Enforcement by the Federal Trade Commission.--
(1) Unfair or deceptive acts or practices.--A violation of
section 2 shall be treated as a violation of a rule defining an
unfair or deceptive act or practice prescribed under section
18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C.
57a(a)(1)(B)).
(2) Powers of the commission.--
(A) In general.--The Commission shall enforce this
Act and any regulations promulgated under this Act in
the same manner, by the same means, and with the same
jurisdiction, powers, and duties as though all
applicable terms and provisions of the Federal Trade
Commission Act (15 U.S.C. 41 et seq.) were incorporated
into and made a part of this Act, and any person who
violates this Act or a regulation promulgated under
this Act shall be subject to the penalties and entitled
to the privileges and immunities provided in the
Federal Trade Commission Act.
(B) Regulations.--The Commission may, under section
553 of title 5, United States Code, prescribe any
regulations it determines necessary to carry out this
Act.
(C) Effect on other laws.--Nothing in this Act
shall be construed to limit the authority of the
Commission under any other provision of law.
(b) Enforcement by State Attorneys General.--
(1) In general.--If the chief law enforcement officer of a
State, or an official or agency designated by a State, has
reason to believe that any person has violated or is violating
section 2, the attorney general, official, or agency of the
State, in addition to any authority it may have to bring an
action in State court under State law, may bring a civil action
in any appropriate United States district court or in any other
court of competent jurisdiction, including a State court, to--
(A) enjoin further such violation by such person;
(B) enforce compliance with such section;
(C) obtain civil penalties; and
(D) obtain damages, restitution, or other
compensation on behalf of residents of the State.
(2) Notice and intervention by the ftc.--The attorney
general (or other such officer) of a State shall provide prior
written notice of any action under paragraph (1) to the
Commission and provide the Commission with a copy of the
complaint in the action, except in any case in which such prior
notice is not feasible, in which case the attorney general
shall serve such notice immediately upon instituting such
action. The Commission shall have the right--
(A) to intervene in the action;
(B) upon so intervening, to be heard on all matters
arising therein; and
(C) to file petitions for appeal.
(3) Limitation on state action while federal action is
pending.--If the Commission has instituted a civil action for
violation of this Act, no State attorney general, or official
or agency of a State, may bring an action under this paragraph
during the pendency of that action against any defendant named
in the complaint of the Commission for any violation of this
Act alleged in the complaint.
(4) Relationship with state law claims.--If the attorney
general of a State has authority to bring an action under State
law directed at acts or practices that also violate this Act,
the attorney general may assert the State law claim and a claim
under this Act in the same civil action.
SEC. 4. RULES OF CONSTRUCTION, LIMITATIONS, AND NON-APPLICATION.
The following rules of construction, limitations, and non-
application provisions apply to this Act:
(1) Security-related functions not excluded.--For digital
electronic equipment that contains an electronic security lock
or other security-related function, the original equipment
manufacturer shall make available to the owner and to
independent repair providers, on fair and reasonable terms, any
special documentation, tools, and parts needed to disable the
lock or function, and to reset it when disabled in the course
of diagnosis, maintenance, or repair of the equipment.
(2) Protection of trade secrets.--Nothing in this Act shall
be construed to require an original equipment manufacturer to
divulge a trade secret, as defined in section 1839 of title 18,
United States Code, to an owner or an independent repair
provider except as necessary to provide documentation, parts,
and tools on fair and reasonable terms.
(3) Terms of agreement with authorized repair providers.--
No provision in this Act shall be construed to abrogate,
interfere with, contradict, or alter the terms of any
arrangement described in section 5(1)(A), including the
performance or provision of warranty or recall repair work by
an authorized repair provider on behalf of an original
equipment manufacturer pursuant to such arrangement, except
that any provision in such terms that purports to waive, avoid,
restrict, or limit an OEM's obligations to comply with this Act
shall be void and unenforceable.
(4) Non-application to motor vehicle or motor vehicle
equipment manufacturers.--Nothing in this Act shall apply to a
motor vehicle manufacturer, a manufacturer of motor vehicle
equipment, or a motor vehicle dealer, acting in that capacity.
(5) Non-application to manufacturers of medical devices.--
Nothing in this Act shall apply to a manufacturer of a medical
device, acting in that capacity.
SEC. 5. DEFINITIONS.
In this Act, the following definitions apply:
(1) Authorized repair provider.--
(A) In general.--The term ``authorized repair
provider'' means with respect to an OEM, a person
that--
(i) has an arrangement with the OEM in
which the OEM grants to the person license to
use a trade name, service mark, or other
proprietary identifier for the purposes of
offering the services of diagnosis,
maintenance, or repair of digital electronic
equipment under the name of the OEM; or
(ii) otherwise has an arrangement with the
OEM to offer such services on behalf of or
under contract with the OEM.
(B) Clarification.--An OEM that offers the services
of diagnosis, maintenance, or repair of digital
electronic equipment manufactured by it or on its
behalf, or sold or otherwise supplied by the OEM, shall
be considered an authorized repair provider with
respect to such equipment.
(2) Digital electronic equipment.--The term ``digital
electronic equipment'' means any product that depends for its
functioning, in whole or in part, on digital electronics
embedded in or attached to the product.
(3) Documentation.--The term ``documentation'' means any
manuals, diagrams, reporting output, service code descriptions,
schematic, security code or password, or other information used
in effecting the services of diagnosis, maintenance, or repair
of digital electronic equipment.
(4) Fair and reasonable terms.--The term ``fair and
reasonable terms'', with respect to a part, tool, or
documentation, means at costs and terms that are equivalent to
the most favorable costs and terms under which an OEM offers
the part, tool, or documentation to an authorized repair
provider--
(A) accounting for any discount, rebate, convenient
and timely means of delivery, means of enabling fully
restored and updated functionality, rights of use, or
other incentive or preference the OEM offers to an
authorized repair provider, or any additional cost,
burden, or impediment the OEM imposes on an owner or
independent repair provider;
(B) not conditioned on or imposing a substantial
obligation or restriction that is not reasonably
necessary for enabling the owner or independent repair
provider to engage in the diagnosis, maintenance, or
repair of digital electronic equipment made by or on
behalf of the OEM; and
(C) not conditioned on an arrangement described in
paragraph (1)(A).
(5) Independent repair provider.--
(A) In general.--The term ``independent repair
provider'' means with respect to an OEM, a person that
is not affiliated with the OEM or with an authorized
repair provider of the OEM, when such person is engaged
in the diagnosis, maintenance, or repair of digital
electronic equipment manufactured by or on behalf of,
sold, or otherwise supplied by the OEM.
(B) Clarification.--An OEM or, with respect to that
OEM, a person who has an arrangement described in
paragraph (1)(A) with that OEM, or who is affiliated
with a person who has such an arrangement with that
OEM, shall be considered an independent repair provider
for the purposes of those instances when such OEM or
person engages in the diagnosis, service, maintenance,
or repair of digital equipment that is not manufactured
by or on behalf of, sold, or otherwise supplied by that
OEM.
(6) Medical device.--The term ``medical device'' has the
meaning given the term ``device'' under section 201(h) of the
Federal Food, Drug and Cosmetic Act (21 U.S.C. 321(h)).
(7) Motor vehicle.--
(A) In general.--The term ``motor vehicle'' means a
vehicle that is designed for transporting persons or
property on a street or highway and is certified by the
manufacturer under all applicable Federal safety and
emissions standards and requirements for distribution
and sale in the United States.
(B) Exclusions.--The term ``motor vehicle'' does
not include--
(i) a motorcycle; or
(ii) a recreational vehicle or an auto home
equipped for habitation.
(8) Motor vehicle dealer.--The term ``motor vehicle
dealer'' means a person who--
(A) is engaged in the business of selling or
leasing new motor vehicles to another person pursuant
to a franchise agreement;
(B) has obtained a license to engage in such
business under the applicable State law; and
(C) is engaged in the services of diagnosis,
maintenance, or repair of motor vehicles or motor
vehicle engines pursuant to such franchise agreement.
(9) Motor vehicle manufacturer.--The term ``motor vehicle
manufacturer'' means a person engaged in the business of
manufacturing or assembling new motor vehicles.
(10) Original equipment manufacturer; oem.--The term
``original equipment manufacturer'' or ``OEM'' means any person
who is engaged in the business of selling, leasing, or
otherwise supplying new digital electronic equipment or parts
of equipment manufactured by or on behalf of itself, to any
person.
(11) Owner.--The term ``owner'' means a person who owns or
leases digital electronic equipment.
(12) Part.--The term ``part'' means any replacement part,
either new or used, made available by or to an OEM for purposes
of effecting the services of maintenance or repair of digital
electronic equipment manufactured by or on behalf of, sold, or
otherwise supplied by the OEM.
(13) Parts pairing.--The term ``parts pairing'' means, with
respect to a part, the practice of employing software to
identify component parts through the use of a unique
identifier.
(14) Tool.--The term ``tool'' means any software program,
hardware implement, or other apparatus used for diagnosis,
maintenance, or repair of digital electronic equipment,
including software or other mechanisms that provision, program,
or pair a part, calibrate functionality, or perform any other
function required to bring the equipment back to fully
functional condition.
SEC. 6. EFFECTIVE DATE.
This Act shall take effect 60 days after the date of enactment of
this Act and shall apply with respect to equipment sold or in use on or
after the effective date of this Act.
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