SB 2847: Right To Repair; Consumer Protection; Wheelchair

A BILL FOR AN ACT

relating to the right to repair.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The purpose of this Act is to establish a right to repair for wheelchairs while establishing a legal framework to allow the later addition of other categories of devices.

     SECTION 2.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

right to repair

     §   -1  Definitions.  As used in this chapter:

     "Authorized repair provider" means an individual or business who is unaffiliated with an original equipment manufacturer but has an arrangement with the original equipment manufacturer, for a definite or indefinite period, under which the original equipment manufacturer grants to the individual or business a 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 a covered device under the name of the original equipment manufacturer, or other arrangement with the original equipment manufacturer to offer the services on behalf of the original equipment manufacturer.  "Authorized repair provider", with respect to equipment, includes an original equipment manufacturer who offers the services of diagnosis, maintenance, or repair of its own covered device, and who does not have an arrangement described in this definition with an unaffiliated individual or business.

     "Covered device" means any wheelchair.  "Covered device" includes charging equipment and other related equipment for the use of the covered device.

     "Documentation" means any manual, diagram, reporting output, service code description, schematic diagram, or similar kinds of information provided to an authorized repair provider for purposes of its effecting the services of diagnosis, maintenance, or repair of a covered device.

     "Embedded software" means any programmable instructions provided on firmware delivered with a covered device, or with a part for the equipment, for purposes of equipment operation, including all relevant patches and fixes made by the manufacturer of the equipment or part for these purposes.

     "Fair and reasonable terms" for obtaining a part, tool, or documentation means at costs and terms, including convenience of delivery and rights of use, equivalent to what is offered by the original equipment manufacturer to an authorized repair provider, using the net costs that would be incurred by an authorized repair provider in obtaining an equivalent part, tool, or documentation from the original equipment manufacturer, accounting for any discounts, rebates, or other incentive programs in arriving at the actual net costs.  For documentation, including any relevant updates, "fair and reasonable terms" means at no charge, except that, when the documentation is requested in physical printed form, a charge may be included for the reasonable actual costs of preparing and sending the copy.

     "Firmware" means a software program or set of instructions programmed on a covered device, or on a part for the equipment, to allow the equipment or part to communicate with other computer hardware.

     "Independent repair provider" means an individual or business operating in the State, who:

     (1)  Does not have an arrangement with an original equipment manufacturer;

     (2)  Is not affiliated with any individual or business who has an arrangement; and

     (3)  Is engaged in the services of diagnosis, maintenance, or repair of a covered device,

except that an original equipment manufacturer or, with respect to that original equipment manufacturer, an individual or business who has an arrangement with that original equipment manufacturer, or who is affiliated with an individual or business who has an arrangement with that original equipment manufacturer, shall be considered an independent repair provider for purposes of those instances in which it engages in the services of diagnosis, maintenance, or repair of a covered device that is not manufactured by or sold under the name of that original equipment manufacturer.

     "Manufacturer of motor vehicle equipment" means a business engaged in the business of manufacturing or supplying components that are used in the manufacture, maintenance, or repair of a motor vehicle.

     "Motor vehicle" means a vehicle that is designed for transporting persons or property on a street or highway and is certified by the motor vehicle manufacturer under all applicable federal safety and emissions standards and requirements for distribution and sale in the United States.

     "Motor vehicle dealer" means an individual or business who, in the ordinary course of business, is engaged in the business of selling or leasing new motor vehicles to an individual or business pursuant to a franchise agreement, has obtained a license under section 437-2, and is engaged in the services of diagnosis, maintenance, or repair of motor vehicles or motor vehicle engines pursuant to that franchise agreement.

     "Motor vehicle manufacturer" means a business engaged in the business of manufacturing or assembling new motor vehicles.

     "Original equipment manufacturer" means a business engaged in the business of selling or leasing a new covered device manufactured by or on behalf of itself, to any individual or business.

     "Owner" means an individual or business who owns or leases covered devices purchased or used in the State.

     "Part" means any replacement part, either new or used, made available by an original equipment manufacturer for purposes of effecting the services of maintenance or repair of a covered device manufactured or sold by the original equipment manufacturer.

     "Trade secret" has the same meaning as defined in section 482B-2.

     §   -2  Requirements.  (a)  For a covered device, and parts for the covered device, sold or used in the State, an original equipment manufacturer shall make available for purposes of diagnosis, maintenance, or repair to any independent repair provider or owner of a covered device manufactured by or on behalf of or sold by the original equipment manufacturer, on fair and reasonable terms, any documentation, parts, and tools, including any updates to information or embedded software.  Nothing in this section requires an original equipment manufacturer to make available a part if the part is no longer available to the original equipment manufacturer.

     (b)  For equipment that contains an electronic security lock or other security-related function, the original equipment manufacturer shall make available to the owner or independent repair provider, on fair and reasonable terms, any special documentation, tools, and parts needed to reset the lock or function if the function is disabled in the course of diagnosis, maintenance, or repair of the equipment.  The documentation, tools, and parts may be made available through appropriately secure release systems.

     §   -3  Enforcement by attorney general.  Violation of any provision of this chapter shall be deemed an unfair practice under section 480-2.  All remedies, penalties, and authority granted to the attorney general by chapter 480 shall be available to the attorney general in the enforcement of this chapter.

     §   -4  Limitations.  (a)  Nothing in this chapter shall be construed to require an original equipment manufacturer to divulge a trade secret to an owner or independent service provider except as necessary to provide documentation, parts, and tools on fair and reasonable terms.

     (b)  No provision of this chapter shall be construed to alter the terms of any arrangement in force between an authorized repair provider and an original equipment manufacturer, 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 the arrangement, except that any provision in the terms that purports to waive, avoid, restrict, or limit the original equipment manufacturer's obligations to comply with this chapter shall be void and unenforceable.

     (c)  Nothing in this chapter shall be construed to require an original equipment manufacturer or authorized repair provider to provide an owner or independent repair provider access to information, other than documentation, that is provided by the original equipment manufacturer to an authorized repair provider pursuant to the terms of the arrangement between the authorized repair provider and the original equipment manufacturer.

     §   -5  Exclusions.  This chapter shall not apply to a:

     (1)  Motor vehicle manufacturer, manufacturer of motor vehicle equipment, or motor vehicle dealer acting in that capacity or to any product or service of the motor vehicle manufacturer, manufacturer of motor vehicle equipment, or motor vehicle dealer;

     (2)  Manufacturer, distributor, importer, or dealer of any off-road equipment, including all-terrain sports and recreational vehicles, racing vehicles, motorcycles, and heavy construction equipment; or

     (3)  Manufacturer, distributor, importer, or dealer of any medical equipment valued at $100,000 or more that is used in the treatment, monitoring, or diagnosis of a patient.

     §   -6  Applicability.  This chapter shall apply with respect to covered devices sold or in use on or after the effective date of this chapter."

     SECTION 3.  This Act shall take effect upon its approval.

Report Title:

Right To Repair; Consumer Protection; Wheelchair

Description:

Establishes a right to repair for wheelchairs.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.