Bill Text: WV SB306 | 2024 | Regular Session | Engrossed
Bill Title: Equipment Right to Repair Act
Spectrum: Partisan Bill (Republican 2-0)
Status: (Engrossed) 2024-02-26 - To House Judiciary [SB306 Detail]
Download: West_Virginia-2024-SB306-Engrossed.html
WEST virginia legislature
2024 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]
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.
(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.
(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, 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.
§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 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.
