Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
                 Engrossed Committee Substitute for Senate Bill 306
        BY SENATORS HAMILTON AND DEEDS
  [Originating in the Committee on Agriculture and Natural Resources; reported February 21, 2024]
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  A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article,
         designated §19-39-1, §19-39-2, §19-39-3, §19-39-4, §19-39-5, §19-39-6, §19-39-7, §19-
         39-8, and §19-39-9, all relating to creating the Equipment Right to Repair Act; creating a
         short title; defining terms; establishing jurisdiction of the Commissioner of Agriculture;
         establishing requirements; establishing limitations; providing for rulemaking; establishing
         violations; imposing civil penalties; authorizing civil actions, penalties, and injunctive relief;
         and providing for applicability and effective date of article.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 19. EQUIPMENT RIGHT TO REPAIR ACT.
     §19-39-1. Short title.
         This article shall be known and cited as the Equipment Right to Repair Act.
     §19-39-2. Definitions.
         As used in this article:
         (1) "Authorized repair provider" means a person or entity that has an arrangement for a
  definite or indefinite period in which a manufacturer grants, to a separate person or entity, a
  license to use a tradename, service mark, or related characteristic for purposes of offering the
  services of diagnosis, maintenance, or repair of equipment under the name of the original
  equipment manufacturer. An original equipment manufacturer who offers the services of
  diagnosis, maintenance, or repair of its own equipment, and who does not have an arrangement
  described in this subsection with an unaffiliated individual or business, shall be considered an
  authorized repair provider with respect to such equipment.
        (2) "Commissioner" means the Commissioner of the Department of Agriculture.
        (3) "Documentation" means any manual, diagram, reporting output, service code
 description, schematic diagram, security codes, passwords, or other guidance or information used
 in effecting the services of diagnosis, maintenance, or repair of equipment.
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        (4) "Embedded software" means any programmable instructions provided on firmware,
 and all relevant patches and fixes made by the manufacturer, delivered with equipment, and used
 for its operation. "Embedded software" includes a basic internal operating system, an internal
 operating system, a machine code, an assembly code, a root code, a microcode, and other similar
 components.
        (5) "Farm equipment" means equipment that is used or intended for use in a farm or ranch
 operation, including, but not limited to, a combine, farm tractor, trailer, sprayer, tillage implement,
 baler, engine, motor, other equipment used to plant, cultivate, irrigate, or harvest agricultural
 products or to ranch, and attachments and repair parts for farm equipment, but excluding a motor
 vehicle designed primarily for transporting persons or property on public roadways.
        (6) “Tools and documentation” means on terms that, upon expiration of the manufacturer’s
 new equipment warranty, do not impose on an owner or an independent repair provider any
 substantial obligation to use or any restriction on the use of the tool, software, or documentation
 to diagnose, maintain, or repair equipment sold, leased, or otherwise supplied by the original
 equipment manufacturer, including a condition that the owner or independent repair provider
 become an authorized repair provider of the original equipment manufacturer, or a requirement
 that a tool be registered, paired with, or approved by the original equipment manufacturer or an
 authorized repair provider before such part or tool is operational; and
        For documentation, upon warranty expiration the documentation is made available by the
 original equipment manufacturer.
        (7) "Firmware" means a software program or set of instructions programmed on a
 hardware device to allow the device to communicate with other computer hardware.
        (8) "Independent repair provider" means a person or business operating in the state that
 is not affiliated with an original equipment manufacturer, or its authorized repair provider, other
 than through an arrangement with the manufacturer, whether for a definite or indefinite period,
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 which is engaged in the services of diagnosis, maintenance, or repair of equipment, and related
 attachments and repair parts.
         (9) "Original equipment manufacturer" or "manufacturer" means a business engaged in
 the business of selling, leasing, or otherwise supplying new equipment manufactured by or on
 behalf of itself, to any individual or business.
         (10) "Owner" means an individual or business who owns or leases equipment purchased
 or used in this state.
         (11) "Part" means any replacement part, whether new or used, made available by an
 original equipment manufacturer to an authorized repair provider for purposes of effecting the
 services of maintenance or repair of equipment manufactured by or on behalf of, sold, or
 otherwise supplied by the original equipment manufacturer.
         (12) "Tools" means any software program, hardware implement, or other apparatus used
 for diagnosis, maintenance, or repair of equipment, including software or other mechanisms that
 provision, program, or pair a new part, calibrate functionality, or perform any other function
 required to bring the product back to fully functional condition, including any updates.
         (13) "Trade secret" means the same as defined in 18 U.S.C. § 1839(3).
     §19-39-3. Jurisdiction of the commissioner.
          The commissioner is vested with jurisdiction over all aspects of this article and has
  exclusive authority to perform all acts necessary to implement this article.
     §19-39-4. Requirements.
          A manufacturer of equipment sold or leased, offered for sale or lease, or used in this state
  shall make available upon expiration of the new equipment warranty to any independent repair
  provider and owner of equipment for lease or sale any documentation, parts, and tools required
  for the diagnosis, maintenance, or repair of the equipment, inclusive of any technical updates and
  corrections to embedded software or information. This requirement also applies to any
  attachments or parts for the equipment.
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     §19-39-5. Limitations.
          (a) Nothing in this article shall require a manufacturer to divulge any trade secret to any
  owner or independent repair provider.
          (b) Nothing in this article shall abrogate, interfere with, contradict, or alter the terms of any
  authorized repair agreement executed and in force between an authorized repair provider and
  manufacturer, including, but not limited to, the performance or provision of warranty or recall repair
  work by an authorized repair provider on behalf of a manufacturer pursuant to the agreement,
  except that any provision in the agreement purporting to waive, avoid, restrict, or limit the
  manufacturer's or authorized repair provider's compliance with this article shall be void.
          (c) A manufacturer or authorized repair provider shall not be required to provide an owner
 or independent repair provider access to non-diagnostic and repair documentation provided by
 the manufacturer to an authorized repair provider pursuant to the terms of an authorizing
 agreement.
         (d) No original equipment manufacturer or authorized repair provider shall be liable for any
 damage or injury caused to any equipment, attachments, or parts by an independent repair
 provider or owner which occurs during the course of repair, diagnosis, or maintenance.
     §19-39-6. Rulemaking.
          The commissioner shall propose rules for legislative approval and promulgate emergency
  rules in accordance with the provisions of §29A-3-1 et seq. of this code to implement this article,
  including establishing a mechanism for the administrative resolution of violations of this article
  and the assessment and collection of civil penalties by consent order or agreement as an
  alternative to instituting a civil action.
     §19-39-7. Violations; civil penalties; injunctive relief.
          (a) Any manufacturer, authorized repair provider, independent repair provider, or owner
  that violates any provision of this article or rule promulgated hereunder is liable for a civil penalty
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  of not less than $1,000 for each violation. Each day a violation continues after notice by the
  commissioner constitutes a separate violation. The penalty may be recovered by a civil action.
          (b) Upon application by the commissioner, the circuit courts of the state or the judges
  thereof in vacation may by injunction, compel compliance with, and enjoin any violation of this
  article or rule promulgated hereunder or the terms and conditions of any consent order or
  agreement. The court or the judge thereof in vacation may issue a temporary or preliminary
  injunction in any case pending a decision on the merits of any injunction application filed.
 Notwithstanding any other provision of this code to the contrary, the state is not required to furnish
 bond as a prerequisite to obtaining injunctive relief under this article. An application for an
 injunction under the provisions of this section may be filed and injunctive relief granted
 notwithstanding that all the administrative remedies provided for in this article or rule have not
 been pursued or invoked against the person or persons against whom such relief is sought.
     §19-39-8. Applicability.
          This bill applies to equipment, attachments, and parts sold, leased, or in use in this state
  on and after the effective date of this article.
     §19-39-9. Effective date.
          This article shall take effect on July 1, 2024, and shall have no further force and effect on
  and after July 1, 2027.
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Statutes affected: 
Introduced Version: 19-39-1, 19-39-2, 19-39-3, 19-39-4, 19-39-5, 19-39-6, 19-39-7, 19-39-8, 19-39-9, 19-39-10
Committee Substitute: 19-39-1, 19-39-2, 19-39-3, 19-39-4, 19-39-5, 19-39-6, 19-39-7, 19-39-8, 19-39-9
Engrossed Committee Substitute: 19-39-1, 19-39-2, 19-39-3, 19-39-4, 19-39-5, 19-39-6, 19-39-7, 19-39-8, 19-39-9