```

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3830 Introduced in Senate (IS)]

<DOC>

117th CONGRESS
  2d Session
                                S. 3830

   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

                             March 14, 2022

   Mr. Lujan (for himself, Ms. Lummis, 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. REQUIREMENT TO MAKE DIAGNOSTIC, MAINTENANCE, AND REPAIR 
              EQUIPMENT AVAILABLE TO INDEPENDENT REPAIR PROVIDERS.

    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.

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 its consumer protection 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.--
        Notwithstanding any law, rule, or regulation to the contrary, 
        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 
                is unaffiliated with the OEM and that--
                            (i) has an arrangement with the OEM in 
                        which the OEM grants to a 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) has an arrangement with the OEM to 
                        offer such services on behalf of 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, and 
                who does not have an arrangement described in 
                subparagraph (A) with an unaffiliated person with 
                respect to providing such services for such equipment, 
                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 sold under the name of 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) Tools.--The term ``tools'' 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.
                                 <all>
```