S T A T E O F N E W Y O R K
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5283
2019-2020 Regular Sessions
I N S E N A T E
April 23, 2019
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Introduced by Sen. MAY -- read twice and ordered printed, and when
printed to be committed to the Committee on Consumer Protection
AN ACT to amend the general business law, in relation to establishing
the "right to repair farm equipment act" to require original equipment
manufacturers to make certain equipment available to independent
repair providers under fair and reasonable terms
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act shall be known and may be cited as the "right to
repair farm equipment act".
§ 2. The general business law is amended by adding a new article 33-C
to read as follows:
ARTICLE 33-C
RIGHT TO REPAIR FARM EQUIPMENT
SECTION 698. RIGHT OF CONSUMERS TO DIAGNOSE, SERVICE, MAINTAIN AND
REPAIR FARM EQUIPMENT.
§ 698. RIGHT OF CONSUMERS TO DIAGNOSE, SERVICE, MAINTAIN AND REPAIR
FARM EQUIPMENT. (A) DEFINITIONS. AS USED IN THIS SECTION:
(1) "AUTHORIZED REPAIR PROVIDER" MEANS: (I) A PERSON OR BUSINESS THAT
HAS AN ARRANGEMENT FOR A DEFINITE OR INDEFINITE PERIOD WITH AN ORIGINAL
EQUIPMENT MANUFACTURER IN WHICH THE ORIGINAL EQUIPMENT MANUFACTURER
GRANTS TO A PERSON OR BUSINESS LICENSE TO USE A TRADE NAME, SERVICE
MARK, OR RELATED CHARACTERISTIC FOR THE PURPOSES OF OFFERING REPAIR
SERVICES UNDER THE NAME OF THE ORIGINAL EQUIPMENT MANUFACTURER; OR (II)
A PERSON OR BUSINESS RETAINED BY THE ORIGINAL EQUIPMENT MANUFACTURER TO
PROVIDE REFURBISHING SERVICES FOR THE ORIGINAL EQUIPMENT MANUFACTURER'S
PRODUCT OR PRODUCTS.
(2) "EMBEDDED SOFTWARE" MEANS ANY PROGRAMMABLE INSTRUCTIONS PROVIDED
ON FIRMWARE DELIVERED WITH THE EQUIPMENT FOR THE PURPOSES OF EQUIPMENT
OPERATION, INCLUDING ALL RELEVANT PATCHES AND FIXES MADE BY THE ORIGINAL
EQUIPMENT MANUFACTURER FOR THIS PURPOSE, INCLUDING, BUT NOT LIMITED TO
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11299-01-9
S. 5283 2
SYNONYMS FOR "BASIC INTERNAL OPERATING SYSTEM", "INTERNAL OPERATING
SYSTEM", "MACHINE CODE", "ASSEMBLY CODE", "ROOT CODE", AND "MICROCODE".
(3) "EQUIPMENT" MEANS DIGITAL ELECTRONIC EQUIPMENT OR A PART FOR SUCH
EQUIPMENT ORIGINALLY MANUFACTURED FOR DISTRIBUTION AND SALE IN THE
UNITED STATES.
(4) "FAIR AND REASONABLE TERMS" MEANS AN EQUITABLE PRICE IN LIGHT OF
RELEVANT FACTORS, INCLUDING, BUT NOT LIMITED TO:
(I) THE NET COST TO THE AUTHORIZED REPAIR PROVIDER FOR SIMILAR INFOR-
MATION OBTAINED FROM AN ORIGINAL EQUIPMENT MANUFACTURER, LESS ANY
DISCOUNTS, REBATES, OR OTHER INCENTIVE PROGRAMS;
(II) THE COST TO THE ORIGINAL EQUIPMENT MANUFACTURER FOR PREPARING AND
DISTRIBUTING THE INFORMATION, EXCLUDING ANY RESEARCH AND DEVELOPMENT
COSTS INCURRED IN DESIGNING AND IMPLEMENTING, UPGRADING, OR ALTERING THE
PRODUCT, BUT INCLUDING AMORTIZED CAPITAL COSTS FOR THE PREPARATION AND
DISTRIBUTION OF THE INFORMATION;
(III) THE PRICE CHARGED BY OTHER ORIGINAL EQUIPMENT MANUFACTURERS FOR
SIMILAR INFORMATION;
(IV) THE PRICE CHARGED BY ORIGINAL EQUIPMENT MANUFACTURERS FOR SIMILAR
INFORMATION PRIOR TO THE LAUNCH OF ORIGINAL EQUIPMENT MANUFACTURER
WEBSITES;
(V) THE ABILITY OF AFTERMARKET TECHNICIANS OR SHOPS TO AFFORD THE
INFORMATION;
(VI) THE MEANS BY WHICH THE INFORMATION IS DISTRIBUTED;
(VII) THE EXTENT TO WHICH THE INFORMATION IS USED, INCLUDING THE
NUMBER OF USERS, AND THE FREQUENCY, DURATION, AND VOLUME OF USE; AND
(VIII) INFLATION.
(5) "FARM EQUIPMENT" MEANS ANY SELF-PROPELLED FARM EQUIPMENT AND
IMPLEMENTS OF HUSBANDRY AND THE ACCESSORIES AND PARTS INCLUDED IN THE
SALE OR LEASE OF SAME DESIGNED AND MANUFACTURED PRIMARILY TO BE USED FOR
AGRICULTURAL PURPOSES FOR WHICH THE PURCHASE OR LEASE PRICE FOR EACH
PIECE OF FARM EQUIPMENT EXCEEDS ONE THOUSAND FIVE HUNDRED DOLLARS.
(6) "FARM EQUIPMENT DEALER" MEANS ANY PERSON OR BUSINESS WHO, IN THE
ORDINARY COURSE OF BUSINESS, IS ENGAGED IN THE BUSINESS OF SELLING OR
LEASING NEW FARM EQUIPMENT TO A PERSON OR BUSINESS PURSUANT TO A FRAN-
CHISE AGREEMENT, WHO HAS OBTAINED A LICENSE AS A FARM EQUIPMENT DEALER,
AND WHO IS ENGAGED IN THE DIAGNOSIS, SERVICE, MAINTENANCE, OR REPAIR OF
FARM EQUIPMENT OR FARM EQUIPMENT ENGINES PURSUANT TO SUCH FRANCHISE
AGREEMENT.
(7) "FARM EQUIPMENT MANUFACTURER" MEANS ANY PERSON OR BUSINESS ENGAGED
IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING NEW FARM EQUIPMENT.
(8) "FIRMWARE" MEANS A SOFTWARE PROGRAM OR SET OF INSTRUCTIONS
PROGRAMMED ON A HARDWARE DEVICE TO ALLOW THE DEVICE TO COMMUNICATE WITH
OTHER COMPUTER HARDWARE.
(9) "INDEPENDENT REPAIR PROVIDER" MEANS A PERSON OR BUSINESS OPERATING
IN THIS STATE WHO IS NOT AFFILIATED WITH AN ORIGINAL EQUIPMENT MANUFAC-
TURER OR AN ORIGINAL EQUIPMENT MANUFACTURER'S AUTHORIZED REPAIR PROVIDER
AND WHO IS ENGAGED IN THE DIAGNOSIS, SERVICE, MAINTENANCE, OR REPAIR OF
EQUIPMENT; PROVIDED, HOWEVER, THAT FOR THE PURPOSES OF THIS SECTION, AN
ORIGINAL EQUIPMENT MANUFACTURER SHALL BE CONSIDERED AN INDEPENDENT
REPAIR PROVIDER FOR PURPOSES OF THOSE INSTANCES WHEN SUCH ORIGINAL
EQUIPMENT MANUFACTURER ENGAGES IN THE DIAGNOSIS, SERVICE, MAINTENANCE,
OR REPAIR OF EQUIPMENT THAT IS NOT AFFILIATED WITH THE ORIGINAL EQUIP-
MENT MANUFACTURER.
(10) "ORIGINAL EQUIPMENT MANUFACTURER" MEANS ANY PERSON OR BUSINESS
WHO, IN THE ORDINARY COURSE OF HIS OR HER BUSINESS, IS ENGAGED IN THE
BUSINESS OF SELLING OR LEASING NEW EQUIPMENT TO ANY PERSON OR BUSINESS
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AND IS ENGAGED IN THE DIAGNOSIS, SERVICE, MAINTENANCE, OR REPAIR OF
EQUIPMENT.
(11) "OWNER" MEANS A PERSON OR BUSINESS WHO OWNS OR LEASES A DIGITAL
ELECTRONIC PRODUCT PURCHASED OR USED IN THIS STATE.
(12) "PART" OR "SERVICE PART" MEANS ANY REPLACEMENT PART, EITHER NEW
OR USED, MADE AVAILABLE BY THE ORIGINAL EQUIPMENT MANUFACTURER TO THE
AUTHORIZED REPAIR PROVIDER FOR PURPOSES OF EFFECTING REPAIR.
(13) "REMOTE DIAGNOSTICS" MEANS ANY REMOTE DATA TRANSFER FUNCTION
BETWEEN EQUIPMENT AND THE PROVIDER OF REPAIR SERVICES INCLUDING FOR THE
PURPOSES OF REMOTE DIAGNOSTICS, SETTINGS CONTROLS, OR LOCATION IDENTIFI-
CATION;
(14) "SERVICE PARTS" OR "PARTS" MEANS ANY REPLACEMENT PARTS, EITHER
NEW OR USED, MADE AVAILABLE BY THE ORIGINAL EQUIPMENT MANUFACTURER TO
THE AUTHORIZED REPAIR PROVIDER FOR THE PURPOSES OF EFFECTING REPAIR.
(B) REQUIREMENTS. (1) FOR EQUIPMENT AND PARTS SOLD AND USED IN THIS
STATE, THE ORIGINAL EQUIPMENT MANUFACTURER OF SUCH EQUIPMENT AND PARTS
SHALL:
(I) MAKE AVAILABLE TO INDEPENDENT REPAIR PROVIDERS OR OWNERS OF EQUIP-
MENT MANUFACTURED BY SUCH ORIGINAL EQUIPMENT MANUFACTURER THE SAME DIAG-
NOSTIC AND REPAIR INFORMATION, INCLUDING REPAIR TECHNICAL UPDATES, SCHE-
MATIC DIAGRAMS, UPDATES, CORRECTIONS TO EMBEDDED SOFTWARE AND SAFETY AND
SECURITY PATCHES TIMELY, AND FOR NO CHARGE OR FOR THE SAME CHARGE AND IN
THE SAME FORMAT SUCH ORIGINAL EQUIPMENT MANUFACTURER MAKES AVAILABLE TO
ITS AUTHORIZED REPAIR PROVIDER AND SUBCONTRACT REPAIR OF REFURBISHMENT
FACILITIES; AND
(II) MAKE AVAILABLE FOR PURCHASE BY THE OWNER, HIS OR HER AUTHORIZED
AGENT, OR INDEPENDENT REPAIR PROVIDER, EQUIPMENT OR SERVICE PARTS,
INCLUSIVE OF ANY UPDATES TO THE EMBEDDED SOFTWARE OF THE EQUIPMENT OR
PARTS, UPON FAIR AND REASONABLE TERMS.
NOTHING IN THIS SECTION SHALL REQUIRE THE ORIGINAL EQUIPMENT MANUFAC-
TURER TO SELL EQUIPMENT OR SERVICE PARTS IF THE PARTS ARE NO LONGER
AVAILABLE TO THE ORIGINAL EQUIPMENT MANUFACTURER OR THE AUTHORIZED
REPAIR PROVIDER OF THE ORIGINAL EQUIPMENT MANUFACTURER.
(2) ANY ORIGINAL EQUIPMENT MANUFACTURER THAT SELLS ANY DIAGNOSTIC,
SERVICE, OR REPAIR DOCUMENTATION TO ANY INDEPENDENT REPAIR PROVIDER OR
TO ANY OWNER IN A FORMAT THAT IS STANDARDIZED WITH OTHER ORIGINAL EQUIP-
MENT MANUFACTURERS, AND ON TERMS AND CONDITIONS MORE FAVORABLE THAN THE
MANNER AND THE TERMS AND CONDITIONS PURSUANT TO WHICH THE AUTHORIZED
REPAIR PROVIDER OBTAINS THE SAME DIAGNOSTIC, SERVICE, OR REPAIR DOCUMEN-
TATION, SHALL BE PROHIBITED FROM REQUIRING ANY AUTHORIZED REPAIR PROVID-
ER TO CONTINUE PURCHASING DIAGNOSTIC, SERVICE, OR REPAIR DOCUMENTATION
IN A PROPRIETARY FORMAT, UNLESS SUCH PROPRIETARY FORMAT INCLUDES DIAG-
NOSTIC, SERVICE, OR REPAIR DOCUMENTATION OR FUNCTIONALITY THAT IS NOT
AVAILABLE IN SUCH STANDARDIZED FORMAT.
(3) (I) EACH ORIGINAL EQUIPMENT MANUFACTURER OF EQUIPMENT SOLD OR USED
IN THE STATE SHALL MAKE AVAILABLE FOR PURCHASE BY OWNERS AND INDEPENDENT
REPAIR PROVIDERS ALL DIAGNOSTIC REPAIR TOOLS INCORPORATING THE SAME
DIAGNOSTIC, REPAIR, AND REMOTE COMMUNICATIONS CAPABILITIES THAT SUCH
ORIGINAL EQUIPMENT MANUFACTURER MAKES AVAILABLE TO ITS OWN REPAIR OR
ENGINEERING STAFF OR ANY AUTHORIZED REPAIR PROVIDER.
(II) EACH ORIGINAL EQUIPMENT MANUFACTURER SHALL OFFER SUCH TOOLS FOR
SALE TO OWNERS AND INDEPENDENT REPAIR PROVIDERS UPON FAIR AND REASONABLE
TERMS. EACH ORIGINAL EQUIPMENT MANUFACTURER THAT PROVIDES DIAGNOSTIC
REPAIR DOCUMENTATION TO AFTERMARKET DIAGNOSTIC TOOL, DIAGNOSTIC, OR
THIRD PARTY SERVICE INFORMATION PUBLICATIONS AND SYSTEMS SHALL HAVE
FULLY SATISFIED ITS OBLIGATIONS UNDER THIS SECTION AND THEREAFTER NOT BE
S. 5283 4
RESPONSIBLE FOR THE CONTENT AND FUNCTIONALITY OF SUCH AFTERMARKET DIAG-
NOSTIC TOOLS, DIAGNOSTICS, OR SERVICE INFORMATION SYSTEMS.
(4) ORIGINAL EQUIPMENT MANUFACTURER EQUIPMENT OR PARTS SOLD OR USED IN
THE STATE FOR THE PURPOSE OF PROVIDING SECURITY-RELATED FUNCTIONS MAY
NOT EXCLUDE DIAGNOSTIC, SERVICE, AND REPAIR INFORMATION NECESSARY TO
RESET A SECURITY RELATED ELECTRONIC FUNCTION FROM INFORMATION PROVIDED
TO OWNERS AND INDEPENDENT REPAIR FACILITIES. IF EXCLUDED UNDER THIS
PARAGRAPH, THE INFORMATION NECESSARY TO RESET AN IMMOBILIZER SYSTEM OR
SECURITY RELATED ELECTRONIC MODULE SHALL BE OBTAINED BY OWNERS AND INDE-
PENDENT REPAIR FACILITIES THROUGH THE APPROPRIATE SECURE DATA RELEASE
SYSTEMS.
(C) LIMITATIONS. (1) NOTWITHSTANDING ANY LAW, RULE OR REGULATION TO
THE CONTRARY, NO PROVISION OF THIS SECTION SHALL BE READ, INTERPRETED,
OR CONSTRUED TO ABROGATE, INTERFERE WITH, CONTRADICT, OR ALTER THE TERMS
OF ANY AGREEMENT EXECUTED AND IN FORCE BETWEEN AN AUTHORIZED REPAIR
PROVIDER AND AN ORIGINAL EQUIPMENT MANUFACTURER, INCLUDING, BUT NOT
LIMITED TO, 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 AUTHORIZED REPAIR AGREEMENT, EXCEPT THAT
ANY PROVISION IN SUCH AN AUTHORIZED REPAIR AGREEMENT THAT PURPORTS TO
WAIVE, AVOID, RESTRICT, OR LIMIT AN ORIGINAL EQUIPMENT MANUFACTURER'S
COMPLIANCE WITH THIS SECTION SHALL BE VOID AND UNENFORCEABLE.
(2) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE ORIGINAL
EQUIPMENT MANUFACTURERS OR AUTHORIZED REPAIR PROVIDERS TO PROVIDE AN
OWNER OR INDEPENDENT REPAIR PROVIDER ACCESS TO NON-DIAGNOSTIC AND REPAIR
INFORMATION BY AN ORIGINAL EQUIPMENT MANUFACTURER TO AN AUTHORIZED
REPAIR PROVIDER PURSUANT TO THE TERMS OF AN AUTHORIZING AGREEMENT.
(D) ENFORCEMENT. A VIOLATION OF THIS SECTION SHALL BE ENFORCEABLE BY
THE ATTORNEY GENERAL AND PUNISHABLE BY A FINE OF A MAXIMUM OF FIVE
HUNDRED DOLLARS PER INCIDENT.
§ 3. This act shall take effect on the one hundred twentieth day after
it shall have become a law. Effective immediately, the addition, amend-
ment and/or repeal of any rules or regulations necessary for the imple-
mentation of this act on its effective date are authorized to be made
and completed on or before such effective date.
