S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    618
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sens.  BOYLE,  ADDABBO, AKSHAR, AVELLA, CARLUCCI, CROCI,
   DILAN, HAMILTON, KAMINSKY, MURPHY, PERALTA, ROBACH -- 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  the  sale  of
   digital electronic equipment diagnostic and repair information
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Short title. This act shall be known and may  be  cited  as
 the "fair repair act".
   §  2. The general business law is amended by adding a new section 399-
 nn to read as follows:
   § 399-NN. SALE OF DIGITAL ELECTRONIC EQUIPMENT DIAGNOSTIC  AND  REPAIR
 INFORMATION.  1.  DEFINITIONS.    FOR  THE PURPOSES OF THIS SECTION, THE
 FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A) "ORIGINAL EQUIPMENT MANUFACTURER" OR "OEM"  MEANS  ANY  PERSON  OR
 BUSINESS  WHO, IN THE ORDINARY COURSE OF ITS BUSINESS, IS ENGAGED IN THE
 BUSINESS OF SELLING OR LEASING NEW DIGITAL ELECTRONIC EQUIPMENT OR PARTS
 OF EQUIPMENT TO ANY PERSON OR BUSINESS AND IS ENGAGED IN THE  DIAGNOSIS,
 SERVICE,  MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT OR PARTS
 OF SUCH EQUIPMENT.
   (B) "AUTHORIZED REPAIR PROVIDER" MEANS A PERSON OR BUSINESS  THAT  HAS
 AN  ARRANGEMENT  FOR  A  DEFINITE  OR  INDEFINITE PERIOD IN WHICH AN OEM
 GRANTS TO A SEPARATE BUSINESS ORGANIZATION OR INDIVIDUAL LICENSE TO  USE
 A TRADE NAME, SERVICE MARK OR RELATED CHARACTERISTIC FOR THE PURPOSES OF
 OFFERING REPAIR SERVICES UNDER THE NAME OF THE OEM.
   (C) "INDEPENDENT REPAIR PROVIDER" MEANS A PERSON OR BUSINESS OPERATING
 IN  THE STATE OF NEW YORK THAT IS NOT AFFILIATED WITH AN OEM OR AN OEM'S
 AUTHORIZED REPAIR PROVIDER, WHICH IS ENGAGED IN THE DIAGNOSIS,  SERVICE,
 MAINTENANCE  OR  REPAIR  OF  EQUIPMENT; PROVIDED, HOWEVER, THAT, FOR THE
 PURPOSES OF THIS SECTION, AN OEM  SHALL  BE  CONSIDERED  AN  INDEPENDENT
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05441-01-7

 S. 618                              2
 
 REPAIR  PROVIDER  FOR  THE  PURPOSES  OF  THOSE  INSTANCES WHEN SUCH OEM
 ENGAGES IN THE DIAGNOSIS, SERVICE,  MAINTENANCE  OR  REPAIR  OF  DIGITAL
 EQUIPMENT THAT IS NOT AFFILIATED WITH THE OEM.
   (D)  "OWNER"  MEANS  A PERSON OR BUSINESS WHO OWNS OR LEASES A DIGITAL
 ELECTRONIC PRODUCT PURCHASED OR USED IN THE STATE OF NEW YORK.
   (E) "DOCUMENTATION" MEANS ANY MANUALS, DIAGRAMS, REPORTING OUTPUT,  OR
 SERVICE CODE DESCRIPTIONS PROVIDED TO THE AUTHORIZED REPAIR PROVIDER FOR
 THE PURPOSES OF EFFECTING REPAIR.
   (F)  "DIGITAL  ELECTRONIC  EQUIPMENT"  OR  "EQUIPMENT" MEANS A PART OR
 EQUIPMENT ORIGINALLY MANUFACTURED  FOR  DISTRIBUTION  AND  SALE  IN  THE
 UNITED STATES.
   (G)  "EMBEDDED  SOFTWARE" MEANS ANY PROGRAMMABLE INSTRUCTIONS PROVIDED
 ON FIRMWARE DELIVERED WITH THE EQUIPMENT OR PART  FOR  THE  PURPOSES  OF
 EQUIPMENT  OPERATION,  INCLUDING  ALL RELEVANT PATCHES AND FIXES MADE BY
 THE MANUFACTURER FOR THIS PURPOSE, INCLUDING, BUT NOT LIMITED  TO  SYNO-
 NYMS  "BASIC  INTERNAL  OPERATING  SYSTEM", "INTERNAL OPERATING SYSTEM",
 "MACHINE CODE", "ASSEMBLY CODE", "ROOT CODE", AND "MICROCODE".
   (H) "REMOTE DIAGNOSTICS"  MEANS  ANY  REMOTE  DATA  TRANSFER  FUNCTION
 BETWEEN  EQUIPMENT  AND  THE  PROVIDER  OF REPAIR SERVICES INCLUDING FOR
 PURPOSES OF REMOTE DIAGNOSTICS, SETTING CONTROLS, OR LOCATION  IDENTIFI-
 CATION.
   (I) "SERVICE PARTS" OR "PARTS" MEANS ANY REPLACEMENT PARTS, EITHER NEW
 OR USED, MADE AVAILABLE BY THE OEM TO THE AUTHORIZED REPAIR PROVIDER FOR
 THE PURPOSES OF EFFECTING REPAIR.
   (J)  "FAIR  AND REASONABLE TERMS" MEANS AN EQUITABLE PRICE IN LIGHT OF
 RELEVANT FACTORS, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
   (I) THE NET COST TO THE AUTHORIZED REPAIR PROVIDER FOR SIMILAR  INFOR-
 MATION  OBTAINED  FROM  AN  OEM,  LESS  ANY DISCOUNTS, REBATES, OR OTHER
 INCENTIVE PROGRAMS;
   (II) THE COST TO THE OEM FOR PREPARING AND DISTRIBUTING  THE  INFORMA-
 TION, EXCLUDING ANY RESEARCH AND DEVELOPMENT COSTS INCURRED IN DESIGNING
 AND IMPLEMENTING, UPGRADING OR ALTERING THE PRODUCT, BUT INCLUDING AMOR-
 TIZED CAPITAL COSTS FOR THE PREPARATION AND DISTRIBUTION OF THE INFORMA-
 TION;
   (III) THE PRICE CHARGED BY OTHER OEMS FOR SIMILAR INFORMATION;
   (IV)  THE  PRICE  CHARGED BY OEMS FOR SIMILAR INFORMATION PRIOR TO THE
 LAUNCH OF OEM WEB SITES;
   (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, WHICH INCLUDES THE
 NUMBER OF USERS, AND FREQUENCY, DURATION, AND VOLUME OF USE; AND
   (VIII) INFLATION.
   (K) "TRADE SECRET" MEANS ANYTHING TANGIBLE OR INTANGIBLE OR  ELECTRON-
 ICALLY  STORED  OR  KEPT  WHICH  CONSTITUTES,  REPRESENTS,  EVIDENCES OR
 RECORDS INTELLECTUAL PROPERTY INCLUDING SECRET  OR  CONFIDENTIALLY  HELD
 DESIGNS, PROCESSES, PROCEDURES, FORMULAS, INVENTIONS OR IMPROVEMENTS, OR
 SECRET  OR  CONFIDENTIALLY  HELD  SCIENTIFIC,  TECHNICAL, MERCHANDISING,
 PRODUCTION, FINANCIAL, BUSINESS OR MANAGEMENT INFORMATION,  OR  ANYTHING
 WITHIN  THE DEFINITION OF PARAGRAPH THREE OF SECTION 1839 OF TITLE EIGH-
 TEEN OF THE UNITED STATES CODE.
   (L) "MOTOR VEHICLE" MEANS ANY VEHICLE THAT IS DESIGNED FOR  TRANSPORT-
 ING  PERSONS OR PROPERTY ON A STREET OR HIGHWAY AND THAT IS CERTIFIED BY
 THE MANUFACTURER UNDER ALL APPLICABLE FEDERAL SAFETY AND EMISSIONS STAN-
 DARDS AND REQUIREMENTS FOR DISTRIBUTION AND SALE IN THE  UNITED  STATES,

 S. 618                              3
 
 BUT  EXCLUDING  (I)  A  MOTORCYCLE; OR (II) A RECREATIONAL VEHICLE OR AN
 AUTO HOME EQUIPPED FOR HABITATION.
   (M)  "MOTOR VEHICLE MANUFACTURER" MEANS ANY PERSON OR BUSINESS ENGAGED
 IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING NEW MOTOR VEHICLES.
   (N) "MOTOR VEHICLE DEALER" MEANS ANY PERSON OR BUSINESS  WHO,  IN  THE
 ORDINARY  COURSE  OF ITS BUSINESS, IS ENGAGED IN THE BUSINESS OF SELLING
 OR LEASING NEW MOTOR VEHICLES TO A PERSON  OR  BUSINESS  PURSUANT  TO  A
 FRANCHISE  AGREEMENT  AND  WHO HAS OBTAINED A LICENSE, AS REQUIRED UNDER
 APPLICABLE LAW, AND IS ENGAGED IN THE DIAGNOSIS, SERVICE, MAINTENANCE OR
 REPAIR OF MOTOR VEHICLES OR MOTOR VEHICLE ENGINES PURSUANT TO SAID FRAN-
 CHISE AGREEMENT.
   2. (A) FOR EQUIPMENT AND PARTS SOLD OR USED IN THIS STATE, THE OEMS OF
 SUCH EQUIPMENT AND PARTS SHALL (I) MAKE AVAILABLE TO INDEPENDENT  REPAIR
 PROVIDERS  OR OWNERS OF PRODUCTS MANUFACTURED BY SUCH OEM DIAGNOSTIC AND
 REPAIR INFORMATION, INCLUDING  REPAIR  TECHNICAL  UPDATES,  UPDATES  AND
 CORRECTIONS  TO  EMBEDDED  SOFTWARE  FOR NO CHARGE OR IN THE SAME MANNER
 SUCH OEM MAKES AVAILABLE TO ITS AUTHORIZED REPAIR PROVIDER; AND
   (II) MAKE AVAILABLE FOR PURCHASE BY THE EQUIPMENT OWNER,  HIS  OR  HER
 AUTHORIZED AGENT OR INDEPENDENT REPAIR PROVIDER, PARTS, INCLUSIVE OF ANY
 UPDATES  TO THE EMBEDDED SOFTWARE OF THE PARTS, UPON FAIR AND REASONABLE
 TERMS. NOTHING IN THIS SUBDIVISION SHALL REQUIRE THE OEM TO  SELL  PARTS
 IF THE PARTS ARE NO LONGER AVAILABLE TO THE OEM OR THE AUTHORIZED REPAIR
 PROVIDER OF THE OEM.
   (B)  ANY OEM THAT SELLS ANY DIAGNOSTIC, SERVICE, OR REPAIR INFORMATION
 TO ANY INDEPENDENT REPAIR PROVIDER OR TO ANY OWNER IN A FORMAT  THAT  IS
 STANDARDIZED WITH OTHER OEMS, 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  INFORMATION,  SHALL  BE PROHIBITED FROM REQUIRING ANY AUTHORIZED
 REPAIR PROVIDER TO CONTINUE PURCHASING DIAGNOSTIC,  SERVICE,  OR  REPAIR
 INFORMATION  IN  A  PROPRIETARY  FORMAT,  UNLESS SUCH PROPRIETARY FORMAT
 INCLUDES DIAGNOSTIC, SERVICE, OR REPAIR OPERATIONS INFORMATION OR  FUNC-
 TIONALITY THAT IS NOT AVAILABLE IN SUCH STANDARDIZED FORMAT.
   (C)  EACH OEM OF EQUIPMENT SOLD OR USED IN THE STATE OF NEW YORK SHALL
 MAKE AVAILABLE FOR PURCHASE BY OWNERS AND INDEPENDENT REPAIR  FACILITIES
 ALL  DIAGNOSTIC  REPAIR  TOOLS INCORPORATING THE SAME DIAGNOSTIC, REPAIR
 AND REMOTE COMMUNICATIONS CAPABILITIES THAT SUCH OEM MAKES AVAILABLE  TO
 ITS  OWN  REPAIR OR ENGINEERING STAFF OR ANY AUTHORIZED REPAIR PROVIDER.
 EACH OEM SHALL OFFER SUCH TOOLS FOR SALE TO OWNERS  AND  TO  INDEPENDENT
 REPAIR FACILITIES UPON FAIR AND REASONABLE TERMS.
   EACH  OEM  THAT  PROVIDES DIAGNOSTIC REPAIR INFORMATION TO AFTERMARKET
 TOOL, DIAGNOSTICS, OR THIRD PARTY SERVICE INFORMATION  PUBLICATIONS  AND
 SYSTEMS  SHALL  HAVE  FULLY SATISFIED ITS OBLIGATIONS UNDER THIS SECTION
 AND THEREAFTER NOT BE RESPONSIBLE FOR THE CONTENT AND  FUNCTIONALITY  OF
 AFTERMARKET DIAGNOSTIC TOOLS OR SERVICE INFORMATION SYSTEMS.
   (D)  OEM EQUIPMENT OR PARTS SOLD OR USED IN THE STATE OF NEW  YORK FOR
 THE PURPOSE OF PROVIDING  SECURITY-RELATED  FUNCTIONS  MAY  NOT  EXCLUDE
 DIAGNOSTIC,  SERVICE AND REPAIR INFORMATION NECESSARY TO RESET A SECURI-
 TY-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  INDEPENDENT  REPAIR
 FACILITIES THROUGH THE APPROPRIATE SECURE DATA RELEASE SYSTEMS.
   3.  NOTHING  IN  THIS  SECTION SHALL BE CONSTRUED TO REQUIRE AN OEM TO
 DIVULGE A TRADE SECRET.

 S. 618                              4
 
   4. NOTWITHSTANDING ANY LAW, RULE OR REGULATION  TO  THE  CONTRARY,  NO
 PROVISION  IN  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  OEM
 INCLUDING,  BUT NOT LIMITED TO, THE PERFORMANCE OR PROVISION OF WARRANTY
 OR RECALL REPAIR WORK BY AN AUTHORIZED REPAIR PROVIDER ON BEHALF  OF  AN
 OEM  PURSUANT  TO  SUCH  AUTHORIZED REPAIR AGREEMENT; PROVIDED, HOWEVER,
 THAT ANY PROVISION IN SUCH AN AUTHORIZED REPAIR AGREEMENT THAT  PURPORTS
 TO WAIVE, AVOID, RESTRICT OR LIMIT AN OEM'S COMPLIANCE WITH THIS SECTION
 SHALL BE VOID AND UNENFORCEABLE.
   5.  NOTHING  IN  THIS  SECTION  SHALL  BE CONSTRUED TO REQUIRE OEMS OR
 AUTHORIZED REPAIR PROVIDERS TO PROVIDE AN OWNER  OR  INDEPENDENT  REPAIR
 PROVIDER  ACCESS TO NON-DIAGNOSTIC AND REPAIR INFORMATION PROVIDED BY AN
 OEM TO AN AUTHORIZED REPAIR PROVIDER PURSUANT TO THE TERMS OF AN AUTHOR-
 IZING AGREEMENT.
   6. NOTHING IN THIS SECTION SHALL APPLY TO MOTOR VEHICLE MANUFACTURERS,
 ANY PRODUCT OR SERVICE OF A MOTOR VEHICLE MANUFACTURER OR MOTOR  VEHICLE
 DEALERS AS DEFINED IN THIS SECTION.
   7. ANY INDEPENDENT REPAIR PROVIDER THAT PURCHASES OR ACQUIRES EMBEDDED
 SOFTWARE  OR  SERVICE  PARTS  SHALL, PRIOR TO PERFORMING ANY SERVICES ON
 DIGITAL ELECTRONIC EQUIPMENT, NOTIFY THE  OWNER  OF  SUCH  EQUIPMENT  IN
 WRITING THAT:
   (A)  CONSUMERS  SHOULD REVIEW THE TERMS AND CONDITIONS OF THE WARRANTY
 FOR SUCH DIGITAL ELECTRONIC EQUIPMENT AS REPAIRS  NOT  PERFORMED  BY  AN
 AUTHORIZED  REPAIR PROVIDER COULD AFFECT THE TERMS AND CONDITIONS OF THE
 WARRANTY;
   (B) WARRANTORS CANNOT REQUIRE THAT ONLY BRANDED PARTS BE USED WITH THE
 PRODUCT IN ORDER TO RETAIN THE WARRANTY;
   (C) WARRANTORS SHALL DEMONSTRATE THAT A DEFECT OR DAMAGE WAS CAUSED BY
 INDEPENDENT REPAIR TO AFFECT THE WARRANTY;
   (D) WARRANTIES ARE GOVERNED BY THE FEDERAL MAGNUSON-MOSS WARRANTY ACT;
 AND
   (E) SUCH INDEPENDENT REPAIR  PROVIDER  IS  NOT  AN  AUTHORIZED  REPAIR
 PROVIDER FOR SUCH DIGITAL ELECTRONIC EQUIPMENT.
   8.  THE  CONSUMER  PROTECTION  DIVISION  SHALL  DEVELOP, ESTABLISH AND
 IMPLEMENT A PUBLIC  OUTREACH  PROGRAM  DIRECTED  AT  INDEPENDENT  REPAIR
 PROVIDERS,  CONSUMERS AND DIGITAL ELECTRONIC ORIGINAL EQUIPMENT MANUFAC-
 TURERS TO INFORM THEM OF THEIR RIGHTS AND RESPONSIBILITIES  PURSUANT  TO
 THIS  SECTION.  SUCH  PUBLIC  OUTREACH SHALL INCLUDE BROCHURES, CONSUMER
 GUIDES, POSTERS OR ANY COMBINATION THEREOF AND MADE AVAILABLE TO CONSUM-
 ERS AND OTHER STAKEHOLDERS BY ANY MEANS DEEMED APPROPRIATE BY SUCH DIVI-
 SION AND MAY INCLUDE INTERNET, RADIO, AND PRINT ADVERTISING. THE  PUBLIC
 OUTREACH  MAY  ALSO  IDENTIFY AND RECRUIT INDIVIDUALS OR TRADE ORGANIZA-
 TIONS TO ASSIST IN DISTRIBUTING  THIS  INFORMATION  AND  MATERIALS.  THE
 PUBLIC  OUTREACH  SHALL  BEGIN NO LATER THAN THE THIRTIETH DAY AFTER THE
 EFFECTIVE DATE OF THIS SECTION.
   9. (A) WHENEVER THE  ATTORNEY  GENERAL  SHALL  BELIEVE  FROM  EVIDENCE
 SATISFACTORY TO HIM THAT ANY PERSON, FIRM, CORPORATION OR ASSOCIATION OR
 AGENT OR EMPLOYEE THEREOF HAS ENGAGED IN OR IS ABOUT TO ENGAGE IN ANY OF
 THE  ACTS  OR  PRACTICES  IN  VIOLATION  OF THIS SECTION HE MAY BRING AN
 ACTION IN THE NAME AND ON BEHALF OF THE PEOPLE OF THE STATE OF NEW  YORK
 TO  ENJOIN  SUCH UNLAWFUL ACTS OR PRACTICES AND TO OBTAIN RESTITUTION OF
 ANY MONEYS OR PROPERTY OBTAINED DIRECTLY OR INDIRECTLY BY ANY SUCH  ACTS
 OR  PRACTICES  IN  VIOLATION OF THIS SECTION. IN SUCH ACTION PRELIMINARY
 RELIEF MAY BE GRANTED UNDER ARTICLE SIXTY-THREE OF  THE  CIVIL  PRACTICE
 LAW AND RULES.

 S. 618                              5

   (B) BEFORE ANY VIOLATION OF THIS SECTION IS SOUGHT TO BE ENJOINED, THE
 ATTORNEY  GENERAL SHALL BE REQUIRED TO GIVE THE PERSON AGAINST WHOM SUCH
 PROCEEDING IS CONTEMPLATED NOTICE BY CERTIFIED MAIL AND  AN  OPPORTUNITY
 TO SHOW IN WRITING WITHIN FIVE BUSINESS DAYS AFTER RECEIPT OF NOTICE WHY
 PROCEEDINGS  SHOULD  NOT  BE INSTITUTED AGAINST HIM, UNLESS THE ATTORNEY
 GENERAL SHALL FIND, IN ANY CASE IN WHICH HE  SEEKS  PRELIMINARY  RELIEF,
 THAT TO GIVE SUCH NOTICE AND OPPORTUNITY IS NOT IN THE PUBLIC INTEREST.
   (C) IN CONNECTION WITH ANY PROPOSED PROCEEDING UNDER THIS SECTION, THE
 ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A DETERMINATION OF
 THE  RELEVANT FACTS, AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL
 PRACTICE LAW AND RULES.
   (D) THIS SUBDIVISION SHALL APPLY TO ALL ACTS OR PRACTICES DECLARED  TO
 BE IN VIOLATION OF THIS SECTION, WHETHER OR NOT SUBJECT TO ANY OTHER LAW
 OF THIS STATE, AND SHALL NOT SUPERSEDE, AMEND OR REPEAL ANY OTHER LAW OF
 THIS  STATE  UNDER  WHICH THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE ANY
 ACTION OR CONDUCT ANY INQUIRY.
   (E) ANY PERSON, FIRM, CORPORATION OR ASSOCIATION OR AGENT OR  EMPLOYEE
 THEREOF  WHO  ENGAGES IN ANY OF THE ACTS OR PRACTICES TO BE IN VIOLATION
 OF THIS SECTION SHALL BE LIABLE TO A CIVIL PENALTY OF NOT MORE THAN FIVE
 HUNDRED DOLLARS FOR EACH VIOLATION, WHICH SHALL ACCRUE TO THE  STATE  OF
 NEW  YORK AND MAY BE RECOVERED IN A CIVIL ACTION BROUGHT BY THE ATTORNEY
 GENERAL.
   (F) EXCEPT IN THE INSTANCE OF A DISPUTE ARISING  BETWEEN  AN  ORIGINAL
 EQUIPMENT  MANUFACTURER  AND  ITS  AUTHORIZED REPAIR PROVIDER RELATED TO
 EITHER PARTY'S COMPLIANCE WITH AN EXISTING AUTHORIZED REPAIR  AGREEMENT,
 AN  AUTHORIZED  REPAIR  PROVIDER  SHALL HAVE ALL THE RIGHTS AND REMEDIES
 PROVIDED IN THIS SECTION.
   § 3. This act shall take effect on the sixtieth  day  after  it  shall
 have  become  a  law;  provided,  however, that subdivision 7 of section
 399-nn of the general business law, as added by section two of this  act
 shall take effect on the ninetieth day after it shall have become a law.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  618--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sens.  BOYLE,  ADDABBO, AKSHAR, AVELLA, CARLUCCI, CROCI,
   DILAN, HAMILTON, KAMINSKY, MURPHY, PERALTA, PERSAUD,  ROBACH  --  read
   twice  and  ordered  printed,  and when printed to be committed to the
   Committee  on  Consumer  Protection  --  committee  discharged,   bill
   amended,  ordered reprinted as amended and recommitted to said commit-
   tee
 
 AN ACT to amend the general business law, in relation  to  the  sale  of
   digital electronic equipment diagnostic and repair information
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Short title. This act shall be known and may  be  cited  as
 the "fair repair act".
   §  2. The general business law is amended by adding a new section 399-
 nn to read as follows:
   § 399-NN. SALE OF DIGITAL ELECTRONIC EQUIPMENT DIAGNOSTIC  AND  REPAIR
 INFORMATION.  1.  DEFINITIONS.    FOR  THE PURPOSES OF THIS SECTION, THE
 FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A) "ORIGINAL EQUIPMENT MANUFACTURER" OR "OEM"  MEANS  ANY  PERSON  OR
 BUSINESS  WHO, IN THE ORDINARY COURSE OF ITS BUSINESS, IS ENGAGED IN THE
 BUSINESS OF SELLING OR LEASING NEW DIGITAL ELECTRONIC EQUIPMENT OR PARTS
 OF EQUIPMENT TO ANY PERSON OR BUSINESS AND IS ENGAGED IN THE  DIAGNOSIS,
 SERVICE,  MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT OR PARTS
 OF SUCH EQUIPMENT.
   (B) "AUTHORIZED REPAIR PROVIDER" MEANS (I) A PERSON OR  BUSINESS  THAT
 HAS  AN  ARRANGEMENT  WITH AN OEM FOR A DEFINITE OR INDEFINITE PERIOD IN
 WHICH THE OEM GRANTS TO A PERSON OR BUSINESS  LICENSE  TO  USE  A  TRADE
 NAME,  SERVICE MARK OR RELATED CHARACTERISTIC FOR THE PURPOSES OF OFFER-
 ING REPAIR SERVICES UNDER THE NAME OF THE OEM, OR (II) A PERSON OR BUSI-
 NESS RETAINED BY THE OEM TO PROVIDE REFURBISHING SERVICES FOR THE  OEM'S
 PRODUCT OR PRODUCTS.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05441-04-7
              

 S. 618--A                           2
 
   (C) "INDEPENDENT REPAIR PROVIDER" MEANS A PERSON OR BUSINESS OPERATING
 IN  THE STATE OF NEW YORK THAT IS NOT AFFILIATED WITH AN OEM OR AN OEM'S
 AUTHORIZED REPAIR PROVIDER, WHICH IS ENGAGED IN THE DIAGNOSIS,  SERVICE,
 MAINTENANCE  OR  REPAIR  OF  EQUIPMENT; PROVIDED, HOWEVER, THAT, FOR THE
 PURPOSES  OF  THIS  SECTION,  AN  OEM SHALL BE CONSIDERED AN INDEPENDENT
 REPAIR PROVIDER FOR THE  PURPOSES  OF  THOSE  INSTANCES  WHEN  SUCH  OEM
 ENGAGES  IN  THE  DIAGNOSIS,  SERVICE,  MAINTENANCE OR REPAIR OF DIGITAL
 EQUIPMENT THAT IS NOT AFFILIATED WITH THE OEM.
   (D) "OWNER" MEANS A PERSON OR BUSINESS WHO OWNS OR  LEASES  A  DIGITAL
 ELECTRONIC PRODUCT PURCHASED OR USED IN THE STATE OF NEW YORK.
   (E)  "DOCUMENTATION" MEANS ANY MANUALS, DIAGRAMS, REPORTING OUTPUT, OR
 SERVICE CODE DESCRIPTIONS PROVIDED TO THE AUTHORIZED REPAIR PROVIDER FOR
 THE PURPOSES OF EFFECTING REPAIR.
   (F) "DIGITAL ELECTRONIC EQUIPMENT" OR  "EQUIPMENT"  MEANS  A  PART  OR
 EQUIPMENT  ORIGINALLY  MANUFACTURED  FOR  DISTRIBUTION  AND  SALE IN THE
 UNITED STATES.
   (G) "EMBEDDED SOFTWARE" MEANS ANY PROGRAMMABLE  INSTRUCTIONS  PROVIDED
 ON  FIRMWARE  DELIVERED  WITH  THE EQUIPMENT OR PART FOR THE PURPOSES OF
 EQUIPMENT OPERATION, INCLUDING ALL RELEVANT PATCHES AND  FIXES  MADE  BY
 THE  MANUFACTURER  FOR THIS PURPOSE, INCLUDING, BUT NOT LIMITED TO SYNO-
 NYMS "BASIC INTERNAL OPERATING  SYSTEM",  "INTERNAL  OPERATING  SYSTEM",
 "MACHINE CODE", "ASSEMBLY CODE", "ROOT CODE", AND "MICROCODE".
   (H)  "REMOTE  DIAGNOSTICS"  MEANS  ANY  REMOTE  DATA TRANSFER FUNCTION
 BETWEEN EQUIPMENT AND THE PROVIDER  OF  REPAIR  SERVICES  INCLUDING  FOR
 PURPOSES  OF REMOTE DIAGNOSTICS, SETTING CONTROLS, OR LOCATION IDENTIFI-
 CATION.
   (I) "SERVICE PARTS" OR "PARTS" MEANS ANY REPLACEMENT PARTS, EITHER NEW
 OR USED, MADE AVAILABLE BY THE OEM TO THE AUTHORIZED REPAIR PROVIDER FOR
 THE PURPOSES OF EFFECTING REPAIR.
   (J) "FAIR AND REASONABLE TERMS" MEANS AN EQUITABLE PRICE IN  LIGHT  OF
 RELEVANT FACTORS, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
   (I)  THE NET COST TO THE AUTHORIZED REPAIR PROVIDER FOR SIMILAR INFOR-
 MATION OBTAINED FROM AN OEM,  LESS  ANY  DISCOUNTS,  REBATES,  OR  OTHER
 INCENTIVE PROGRAMS;
   (II)  THE  COST TO THE OEM FOR PREPARING AND DISTRIBUTING THE INFORMA-
 TION, EXCLUDING ANY RESEARCH AND DEVELOPMENT COSTS INCURRED IN DESIGNING
 AND IMPLEMENTING, UPGRADING OR ALTERING THE PRODUCT, BUT INCLUDING AMOR-
 TIZED CAPITAL COSTS FOR THE PREPARATION AND DISTRIBUTION OF THE INFORMA-
 TION;
   (III) THE PRICE CHARGED BY OTHER OEMS FOR SIMILAR INFORMATION;
   (IV) THE PRICE CHARGED BY OEMS FOR SIMILAR INFORMATION  PRIOR  TO  THE
 LAUNCH OF OEM WEB SITES;
   (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, WHICH INCLUDES  THE
 NUMBER OF USERS, AND FREQUENCY, DURATION, AND VOLUME OF USE; AND
   (VIII) INFLATION.
   (K)  "MOTOR VEHICLE" MEANS ANY VEHICLE THAT IS DESIGNED FOR TRANSPORT-
 ING PERSONS OR PROPERTY ON A STREET OR HIGHWAY AND THAT IS CERTIFIED  BY
 THE MANUFACTURER UNDER ALL APPLICABLE FEDERAL SAFETY AND EMISSIONS STAN-
 DARDS  AND  REQUIREMENTS FOR DISTRIBUTION AND SALE IN THE UNITED STATES,
 BUT EXCLUDING (I) A MOTORCYCLE; OR (II) A  RECREATIONAL  VEHICLE  OR  AN
 AUTO HOME EQUIPPED FOR HABITATION.
   (L)  "MOTOR VEHICLE MANUFACTURER" MEANS ANY PERSON OR BUSINESS ENGAGED
 IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING NEW MOTOR VEHICLES.

 S. 618--A                           3
 
   (M) "MOTOR VEHICLE DEALER" MEANS ANY PERSON OR BUSINESS  WHO,  IN  THE
 ORDINARY  COURSE  OF ITS BUSINESS, IS ENGAGED IN THE BUSINESS OF SELLING
 OR LEASING NEW MOTOR VEHICLES TO A PERSON  OR  BUSINESS  PURSUANT  TO  A
 FRANCHISE  AGREEMENT  AND  WHO HAS OBTAINED A LICENSE, AS REQUIRED UNDER
 APPLICABLE LAW, AND IS ENGAGED IN THE DIAGNOSIS, SERVICE, MAINTENANCE OR
 REPAIR OF MOTOR VEHICLES OR MOTOR VEHICLE ENGINES PURSUANT TO SAID FRAN-
 CHISE AGREEMENT.
   (N)  "MANUFACTURER OF MOTOR VEHICLE EQUIPMENT" MEANS A PERSON OR BUSI-
 NESS ENGAGED IN THE BUSINESS OF MANUFACTURING  OR  SUPPLYING  COMPONENTS
 THAT  ARE  USED IN THE MANUFACTURE, SERVICING OR REPAIR OF A MOTOR VEHI-
 CLE.
   (O)  "MEDICAL  DEVICE"  MEANS  AN  INSTRUMENT,  APPARATUS,  IMPLEMENT,
 MACHINE,  CONTRIVANCE,  IMPLANT,  OR  OTHER  SIMILAR OR RELATED ARTICLE,
 INCLUDING A COMPONENT PART, OR ACCESSORY,  AS  DEFINED  IN  THE  FEDERAL
 FOOD,  DRUG  AND  COSMETIC  ACT, 21 USC, SECTION 321 (H) AS AMENDED FROM
 TIME TO TIME, WHICH IS INTENDED FOR USE IN THE DIAGNOSIS OF  DISEASE  OR
 OTHER  CONDITIONS,  OR IN THE CURE, MITIGATION, TREATMENT, OR PREVENTION
 OF DISEASE, IN MAN OR OTHER ANIMALS.
   2. (A) FOR EQUIPMENT AND PARTS SOLD OR USED IN THIS STATE, THE OEMS OF
 SUCH EQUIPMENT AND PARTS SHALL (I) MAKE AVAILABLE TO INDEPENDENT  REPAIR
 PROVIDERS  OR OWNERS OF PRODUCTS MANUFACTURED BY SUCH OEM DIAGNOSTIC AND
 REPAIR  INFORMATION,  INCLUDING  REPAIR  TECHNICAL  UPDATES,   SCHEMATIC
 DIAGRAMS, UPDATES, CORRECTIONS TO EMBEDDED SOFTWARE AND SAFETY AND SECU-
 RITY PATCHES TIMELY, AND FOR NO CHARGE OR FOR THE SAME CHARGE AND IN THE
 SAME  MANNER SUCH OEM MAKES AVAILABLE TO ITS AUTHORIZED REPAIR PROVIDER;
 AND
   (II) MAKE AVAILABLE FOR PURCHASE BY THE EQUIPMENT OWNER,  HIS  OR  HER
 AUTHORIZED AGENT OR INDEPENDENT REPAIR PROVIDER, PARTS, INCLUSIVE OF ANY
 UPDATES  TO THE EMBEDDED SOFTWARE OF THE PARTS, UPON FAIR AND REASONABLE
 TERMS. NOTHING IN THIS SUBDIVISION SHALL REQUIRE THE OEM TO  SELL  PARTS
 IF THE PARTS ARE NO LONGER AVAILABLE TO THE OEM OR THE AUTHORIZED REPAIR
 PROVIDER OF THE OEM.
   (B)  ANY OEM THAT SELLS ANY DIAGNOSTIC, SERVICE, OR REPAIR INFORMATION
 TO ANY INDEPENDENT REPAIR PROVIDER OR TO ANY OWNER IN A FORMAT  THAT  IS
 STANDARDIZED WITH OTHER OEMS, 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  INFORMATION,  SHALL  BE PROHIBITED FROM REQUIRING ANY AUTHORIZED
 REPAIR PROVIDER TO CONTINUE PURCHASING DIAGNOSTIC,  SERVICE,  OR  REPAIR
 INFORMATION  IN  A  PROPRIETARY  FORMAT,  UNLESS SUCH PROPRIETARY FORMAT
 INCLUDES DIAGNOSTIC, SERVICE, OR REPAIR OPERATIONS INFORMATION OR  FUNC-
 TIONALITY THAT IS NOT AVAILABLE IN SUCH STANDARDIZED FORMAT.
   (C)  EACH OEM OF EQUIPMENT SOLD OR USED IN THE STATE OF NEW YORK SHALL
 MAKE AVAILABLE FOR PURCHASE BY OWNERS AND INDEPENDENT REPAIR  FACILITIES
 ALL  DIAGNOSTIC  REPAIR  TOOLS INCORPORATING THE SAME DIAGNOSTIC, REPAIR
 AND REMOTE COMMUNICATIONS CAPABILITIES THAT SUCH OEM MAKES AVAILABLE  TO
 ITS  OWN  REPAIR OR ENGINEERING STAFF OR ANY AUTHORIZED REPAIR PROVIDER.
 EACH OEM SHALL OFFER SUCH TOOLS FOR SALE TO OWNERS  AND  TO  INDEPENDENT
 REPAIR FACILITIES UPON FAIR AND REASONABLE TERMS.
   EACH  OEM  THAT  PROVIDES DIAGNOSTIC REPAIR INFORMATION TO AFTERMARKET
 TOOL, DIAGNOSTICS, OR THIRD PARTY SERVICE INFORMATION  PUBLICATIONS  AND
 SYSTEMS  SHALL  HAVE  FULLY SATISFIED ITS OBLIGATIONS UNDER THIS SECTION
 AND THEREAFTER NOT BE RESPONSIBLE FOR THE CONTENT AND  FUNCTIONALITY  OF
 AFTERMARKET DIAGNOSTIC TOOLS OR SERVICE INFORMATION SYSTEMS.
   (D)  OEM EQUIPMENT OR PARTS SOLD OR USED IN THE STATE OF NEW  YORK FOR
 THE PURPOSE OF PROVIDING  SECURITY-RELATED  FUNCTIONS  MAY  NOT  EXCLUDE

 S. 618--A                           4
 
 DIAGNOSTIC,  SERVICE AND REPAIR INFORMATION NECESSARY TO RESET A SECURI-
 TY-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 INDEPENDENT REPAIR
 FACILITIES THROUGH THE APPROPRIATE SECURE DATA RELEASE SYSTEMS.
   3. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO  REQUIRE  AN  OEM  TO
 DIVULGE A TRADE SECRET.
   4.  NOTWITHSTANDING  ANY  LAW,  RULE OR REGULATION TO THE CONTRARY, NO
 PROVISION IN 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 OEM
 INCLUDING, BUT NOT LIMITED TO, THE PERFORMANCE OR PROVISION OF  WARRANTY
 OR  RECALL  REPAIR WORK BY AN AUTHORIZED REPAIR PROVIDER ON BEHALF OF AN
 OEM PURSUANT TO SUCH AUTHORIZED  REPAIR  AGREEMENT;  PROVIDED,  HOWEVER,
 THAT  ANY PROVISION IN SUCH AN AUTHORIZED REPAIR AGREEMENT THAT PURPORTS
 TO WAIVE, AVOID, RESTRICT OR LIMIT AN OEM'S COMPLIANCE WITH THIS SECTION
 SHALL BE VOID AND UNENFORCEABLE.
   5. NOTHING IN THIS SECTION SHALL  BE  CONSTRUED  TO  REQUIRE  OEMS  OR
 AUTHORIZED  REPAIR  PROVIDERS  TO PROVIDE AN OWNER OR INDEPENDENT REPAIR
 PROVIDER ACCESS TO NON-DIAGNOSTIC AND REPAIR INFORMATION PROVIDED BY  AN
 OEM TO AN AUTHORIZED REPAIR PROVIDER PURSUANT TO THE TERMS OF AN AUTHOR-
 IZING AGREEMENT.
   6. NOTHING IN THIS SECTION SHALL APPLY TO MOTOR VEHICLE MANUFACTURERS,
 ANY  PRODUCT OR SERVICE OF A MOTOR VEHICLE MANUFACTURER, MANUFACTURER OF
 MOTOR VEHICLE EQUIPMENT, OR MOTOR VEHICLE DEALERS  AS  DEFINED  IN  THIS
 SECTION.
   7.  NOTHING  IN THIS SECTION SHALL REQUIRE A MANUFACTURER OF A MEDICAL
 DEVICE AS DEFINED IN THIS SECTION TO IMPLEMENT  ANY  PROVISION  OF  THIS
 SECTION  THAT IS NOT PERMITTED UNDER THE FEDERAL FOOD, DRUG AND COSMETIC
 ACT OR ANY OTHER FEDERAL LAW, RULE OR REGULATION  THAT  SUPERSEDES  THIS
 SECTION.
   8. ANY INDEPENDENT REPAIR PROVIDER THAT PURCHASES OR ACQUIRES EMBEDDED
 SOFTWARE  OR  SERVICE  PARTS  SHALL, PRIOR TO PERFORMING ANY SERVICES ON
 DIGITAL ELECTRONIC EQUIPMENT, NOTIFY THE  OWNER  OF  SUCH  EQUIPMENT  IN
 WRITING THAT:
   (A)  CONSUMERS  SHOULD REVIEW THE TERMS AND CONDITIONS OF THE WARRANTY
 FOR SUCH DIGITAL ELECTRONIC EQUIPMENT AS REPAIRS  NOT  PERFORMED  BY  AN
 AUTHORIZED  REPAIR PROVIDER COULD AFFECT THE TERMS AND CONDITIONS OF THE
 WARRANTY;
   (B) WARRANTORS CANNOT REQUIRE THAT ONLY BRANDED PARTS BE USED WITH THE
 PRODUCT IN ORDER TO RETAIN THE WARRANTY;
   (C) WARRANTORS SHALL DEMONSTRATE THAT A DEFECT OR DAMAGE WAS CAUSED BY
 INDEPENDENT REPAIR TO AFFECT THE WARRANTY;
   (D) WARRANTIES ARE GOVERNED BY THE FEDERAL MAGNUSON-MOSS WARRANTY ACT;
 AND
   (E) SUCH INDEPENDENT REPAIR  PROVIDER  IS  NOT  AN  AUTHORIZED  REPAIR
 PROVIDER FOR SUCH DIGITAL ELECTRONIC EQUIPMENT.
   9.  THE  PROVISIONS  OF SUBDIVISION TWO OF THIS SECTION SHALL APPLY TO
 ANY EQUIPMENT AND PARTS MANUFACTURED IN THE YEAR TWO THOUSAND TWELVE AND
 THEREAFTER.
   10. THE CONSUMER PROTECTION  DIVISION  SHALL  DEVELOP,  ESTABLISH  AND
 IMPLEMENT  A  PUBLIC  OUTREACH  PROGRAM  DIRECTED  AT INDEPENDENT REPAIR
 PROVIDERS, CONSUMERS AND DIGITAL ELECTRONIC ORIGINAL EQUIPMENT  MANUFAC-
 TURERS  TO  INFORM THEM OF THEIR RIGHTS AND RESPONSIBILITIES PURSUANT TO
 THIS SECTION. SUCH PUBLIC OUTREACH  SHALL  INCLUDE  BROCHURES,  CONSUMER

 S. 618--A                           5
 
 GUIDES, POSTERS OR ANY COMBINATION THEREOF AND MADE AVAILABLE TO CONSUM-
 ERS AND OTHER STAKEHOLDERS BY ANY MEANS DEEMED APPROPRIATE BY SUCH DIVI-
 SION  AND MAY INCLUDE INTERNET, RADIO, AND PRINT ADVERTISING. THE PUBLIC
 OUTREACH  MAY  ALSO  IDENTIFY AND RECRUIT INDIVIDUALS OR TRADE ORGANIZA-
 TIONS TO ASSIST IN DISTRIBUTING  THIS  INFORMATION  AND  MATERIALS.  THE
 PUBLIC  OUTREACH  SHALL  BEGIN NO LATER THAN THE THIRTIETH DAY AFTER THE
 EFFECTIVE DATE OF THIS SECTION.
   11. (A) WHENEVER THE ATTORNEY  GENERAL  SHALL  BELIEVE  FROM  EVIDENCE
 SATISFACTORY TO HIM THAT ANY PERSON, FIRM, CORPORATION OR ASSOCIATION OR
 AGENT OR EMPLOYEE THEREOF HAS ENGAGED IN OR IS ABOUT TO ENGAGE IN ANY OF
 THE  ACTS  OR  PRACTICES  IN  VIOLATION  OF THIS SECTION HE MAY BRING AN
 ACTION IN THE NAME AND ON BEHALF OF THE PEOPLE OF THE STATE OF NEW  YORK
 TO  ENJOIN  SUCH UNLAWFUL ACTS OR PRACTICES AND TO OBTAIN RESTITUTION OF
 ANY MONEYS OR PROPERTY OBTAINED DIRECTLY OR INDIRECTLY BY ANY SUCH  ACTS
 OR  PRACTICES  IN  VIOLATION OF THIS SECTION. IN SUCH ACTION PRELIMINARY
 RELIEF MAY BE GRANTED UNDER ARTICLE SIXTY-THREE OF  THE  CIVIL  PRACTICE
 LAW AND RULES.
   (B) BEFORE ANY VIOLATION OF THIS SECTION IS SOUGHT TO BE ENJOINED, THE
 ATTORNEY  GENERAL SHALL BE REQUIRED TO GIVE THE PERSON AGAINST WHOM SUCH
 PROCEEDING IS CONTEMPLATED NOTICE BY CERTIFIED MAIL AND  AN  OPPORTUNITY
 TO SHOW IN WRITING WITHIN FIVE BUSINESS DAYS AFTER RECEIPT OF NOTICE WHY
 PROCEEDINGS  SHOULD  NOT  BE INSTITUTED AGAINST HIM, UNLESS THE ATTORNEY
 GENERAL SHALL FIND, IN ANY CASE IN WHICH HE  SEEKS  PRELIMINARY  RELIEF,
 THAT TO GIVE SUCH NOTICE AND OPPORTUNITY IS NOT IN THE PUBLIC INTEREST.
   (C) IN CONNECTION WITH ANY PROPOSED PROCEEDING UNDER THIS SECTION, THE
 ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A DETERMINATION OF
 THE  RELEVANT FACTS, AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL
 PRACTICE LAW AND RULES.
   (D) THIS SUBDIVISION SHALL APPLY TO ALL ACTS OR PRACTICES DECLARED  TO
 BE IN VIOLATION OF THIS SECTION, WHETHER OR NOT SUBJECT TO ANY OTHER LAW
 OF THIS STATE, AND SHALL NOT SUPERSEDE, AMEND OR REPEAL ANY OTHER LAW OF
 THIS  STATE  UNDER  WHICH THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE ANY
 ACTION OR CONDUCT ANY INQUIRY.
   (E) ANY PERSON, FIRM, CORPORATION OR ASSOCIATION OR AGENT OR  EMPLOYEE
 THEREOF  WHO  ENGAGES IN ANY OF THE ACTS OR PRACTICES TO BE IN VIOLATION
 OF THIS SECTION SHALL BE LIABLE TO A CIVIL PENALTY OF NOT MORE THAN FIVE
 HUNDRED DOLLARS FOR EACH VIOLATION, WHICH SHALL ACCRUE TO THE  STATE  OF
 NEW  YORK AND MAY BE RECOVERED IN A CIVIL ACTION BROUGHT BY THE ATTORNEY
 GENERAL.
   (F) EXCEPT IN THE INSTANCE OF A DISPUTE ARISING  BETWEEN  AN  ORIGINAL
 EQUIPMENT  MANUFACTURER  AND  ITS  AUTHORIZED REPAIR PROVIDER RELATED TO
 EITHER PARTY'S COMPLIANCE WITH AN EXISTING AUTHORIZED REPAIR  AGREEMENT,
 AN  AUTHORIZED  REPAIR  PROVIDER  SHALL HAVE ALL THE RIGHTS AND REMEDIES
 PROVIDED IN THIS SECTION.
   § 3. This act shall take effect on the sixtieth  day  after  it  shall
 have  become  a  law;  provided,  however, that subdivision 8 of section
 399-nn of the general business law, as added by section two of this  act
 shall take effect on the ninetieth day after it shall have become a law.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  618--C
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sens.  BOYLE, ADDABBO, AKSHAR, AVELLA, BAILEY, CARLUCCI,
   CROCI, DILAN, HAMILTON, KAMINSKY, MURPHY, PERALTA, PERSAUD, ROBACH  --
   read  twice  and  ordered printed, and when printed to be committed to
   the Committee on Consumer Protection  --  committee  discharged,  bill
   amended,  ordered reprinted as amended and recommitted to said commit-
   tee --  committee  discharged,  bill  amended,  ordered  reprinted  as
   amended  and  recommitted  to  said  committee  --  recommitted to the
   Committee on Consumer Protection in accordance  with  Senate  Rule  6,
   sec.  8  --  committee  discharged, bill amended, ordered reprinted as
   amended and recommitted to said committee
 
 AN ACT to amend the general business law, in relation  to  the  sale  of
   digital electronic equipment diagnostic and repair information
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Short title. This act shall be known and may  be  cited  as
 the "fair repair act".
   §  2. The general business law is amended by adding a new section 399-
 nn to read as follows:
   § 399-NN. SALE OF DIGITAL ELECTRONIC EQUIPMENT DIAGNOSTIC  AND  REPAIR
 INFORMATION.  1.  DEFINITIONS.    FOR  THE PURPOSES OF THIS SECTION, THE
 FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A) "ORIGINAL EQUIPMENT MANUFACTURER" OR "OEM"  MEANS  ANY  PERSON  OR
 BUSINESS  WHO, IN THE ORDINARY COURSE OF ITS BUSINESS, IS ENGAGED IN THE
 BUSINESS OF SELLING OR LEASING NEW DIGITAL ELECTRONIC EQUIPMENT OR PARTS
 OF EQUIPMENT TO ANY PERSON OR BUSINESS AND IS ENGAGED IN THE  DIAGNOSIS,
 SERVICE,  MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT OR PARTS
 OF SUCH EQUIPMENT.
   (B) "AUTHORIZED REPAIR PROVIDER" MEANS (I) A PERSON OR  BUSINESS  THAT
 HAS  AN  ARRANGEMENT  WITH AN OEM FOR A DEFINITE OR INDEFINITE PERIOD IN
 WHICH THE OEM GRANTS TO A PERSON OR BUSINESS  LICENSE  TO  USE  A  TRADE
 NAME,  SERVICE MARK OR RELATED CHARACTERISTIC FOR THE PURPOSES OF OFFER-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05441-12-8

 S. 618--C                           2
 
 ING REPAIR SERVICES UNDER THE NAME OF THE OEM, OR (II) A PERSON OR BUSI-
 NESS RETAINED BY THE OEM TO PROVIDE REFURBISHING SERVICES FOR THE  OEM'S
 PRODUCT OR PRODUCTS.
   (C) "INDEPENDENT REPAIR PROVIDER" MEANS A PERSON OR BUSINESS OPERATING
 IN  THE STATE OF NEW YORK THAT IS NOT AFFILIATED WITH AN OEM OR AN OEM'S
 AUTHORIZED REPAIR PROVIDER, WHICH IS ENGAGED IN THE DIAGNOSIS,  SERVICE,
 MAINTENANCE  OR  REPAIR  OF  EQUIPMENT; PROVIDED, HOWEVER, THAT, FOR THE
 PURPOSES OF THIS SECTION, AN OEM  SHALL  BE  CONSIDERED  AN  INDEPENDENT
 REPAIR  PROVIDER  FOR  THE  PURPOSES  OF  THOSE  INSTANCES WHEN SUCH OEM
 ENGAGES IN THE DIAGNOSIS, SERVICE,  MAINTENANCE  OR  REPAIR  OF  DIGITAL
 EQUIPMENT THAT IS NOT AFFILIATED WITH THE OEM.
   (D)  "OWNER"  MEANS  A PERSON OR BUSINESS WHO OWNS OR LEASES A DIGITAL
 ELECTRONIC PRODUCT PURCHASED OR USED IN THE STATE OF NEW YORK.
   (E) "DOCUMENTATION" MEANS ANY MANUALS, DIAGRAMS, REPORTING OUTPUT,  OR
 SERVICE CODE DESCRIPTIONS PROVIDED TO THE AUTHORIZED REPAIR PROVIDER FOR
 THE PURPOSES OF EFFECTING REPAIR.
   (F)  "DIGITAL  ELECTRONIC  EQUIPMENT"  OR  "EQUIPMENT" MEANS A PART OR
 EQUIPMENT ORIGINALLY MANUFACTURED  FOR  DISTRIBUTION  AND  SALE  IN  THE
 UNITED STATES.
   (G)  "EMBEDDED  SOFTWARE" MEANS ANY PROGRAMMABLE INSTRUCTIONS PROVIDED
 ON FIRMWARE DELIVERED WITH THE EQUIPMENT OR PART  FOR  THE  PURPOSES  OF
 EQUIPMENT  OPERATION,  INCLUDING  ALL RELEVANT PATCHES AND FIXES MADE BY
 THE MANUFACTURER FOR THIS PURPOSE, INCLUDING, BUT NOT LIMITED  TO  SYNO-
 NYMS  "BASIC  INTERNAL  OPERATING  SYSTEM", "INTERNAL OPERATING SYSTEM",
 "MACHINE CODE", "ASSEMBLY CODE", "ROOT CODE", AND "MICROCODE".
   (H) "REMOTE DIAGNOSTICS"  MEANS  ANY  REMOTE  DATA  TRANSFER  FUNCTION
 BETWEEN  EQUIPMENT  AND  THE  PROVIDER  OF REPAIR SERVICES INCLUDING FOR
 PURPOSES OF REMOTE DIAGNOSTICS, SETTING CONTROLS, OR LOCATION  IDENTIFI-
 CATION.
   (I) "SERVICE PARTS" OR "PARTS" MEANS ANY REPLACEMENT PARTS, EITHER NEW
 OR USED, MADE AVAILABLE BY THE OEM TO THE AUTHORIZED REPAIR PROVIDER FOR
 THE PURPOSES OF EFFECTING REPAIR.
   (J)  "FAIR  AND REASONABLE TERMS" MEANS AN EQUITABLE PRICE IN LIGHT OF
 RELEVANT FACTORS, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
   (I) THE NET COST TO THE AUTHORIZED REPAIR PROVIDER FOR SIMILAR  INFOR-
 MATION  OBTAINED  FROM  AN  OEM,  LESS  ANY DISCOUNTS, REBATES, OR OTHER
 INCENTIVE PROGRAMS;
   (II) THE COST TO THE OEM FOR PREPARING AND DISTRIBUTING  THE  INFORMA-
 TION, EXCLUDING ANY RESEARCH AND DEVELOPMENT COSTS INCURRED IN DESIGNING
 AND IMPLEMENTING, UPGRADING OR ALTERING THE PRODUCT, BUT INCLUDING AMOR-
 TIZED CAPITAL COSTS FOR THE PREPARATION AND DISTRIBUTION OF THE INFORMA-
 TION;
   (III) THE PRICE CHARGED BY OTHER OEMS FOR SIMILAR INFORMATION;
   (IV)  THE  PRICE  CHARGED BY OEMS FOR SIMILAR INFORMATION PRIOR TO THE
 LAUNCH OF OEM WEB SITES;
   (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, WHICH INCLUDES THE
 NUMBER OF USERS, AND FREQUENCY, DURATION, AND VOLUME OF USE; AND
   (VIII) INFLATION.
   (K) "MOTOR VEHICLE" MEANS ANY VEHICLE THAT IS DESIGNED FOR  TRANSPORT-
 ING  PERSONS OR PROPERTY ON A STREET OR HIGHWAY AND THAT IS CERTIFIED BY
 THE MANUFACTURER UNDER ALL APPLICABLE FEDERAL SAFETY AND EMISSIONS STAN-
 DARDS AND REQUIREMENTS FOR DISTRIBUTION AND SALE IN THE  UNITED  STATES,

 S. 618--C                           3
 
 BUT  EXCLUDING  (I)  A  MOTORCYCLE; OR (II) A RECREATIONAL VEHICLE OR AN
 AUTO HOME EQUIPPED FOR HABITATION.
   (L)  "MOTOR VEHICLE MANUFACTURER" MEANS ANY PERSON OR BUSINESS ENGAGED
 IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING NEW MOTOR VEHICLES.
   (M) "MOTOR VEHICLE DEALER" MEANS ANY PERSON OR BUSINESS  WHO,  IN  THE
 ORDINARY  COURSE  OF ITS BUSINESS, IS ENGAGED IN THE BUSINESS OF SELLING
 OR LEASING NEW MOTOR VEHICLES TO A PERSON  OR  BUSINESS  PURSUANT  TO  A
 FRANCHISE  AGREEMENT  AND  WHO HAS OBTAINED A LICENSE, AS REQUIRED UNDER
 APPLICABLE LAW, AND IS ENGAGED IN THE DIAGNOSIS, SERVICE, MAINTENANCE OR
 REPAIR OF MOTOR VEHICLES OR MOTOR VEHICLE ENGINES PURSUANT TO SAID FRAN-
 CHISE AGREEMENT.
   (N) "MANUFACTURER OF MOTOR VEHICLE EQUIPMENT" MEANS A PERSON OR  BUSI-
 NESS  ENGAGED  IN  THE BUSINESS OF MANUFACTURING OR SUPPLYING COMPONENTS
 THAT ARE USED IN THE MANUFACTURE, SERVICING OR REPAIR OF A  MOTOR  VEHI-
 CLE.
   (O)  "MEDICAL  DEVICE"  MEANS  AN  INSTRUMENT,  APPARATUS,  IMPLEMENT,
 MACHINE, CONTRIVANCE, IMPLANT, OR  OTHER  SIMILAR  OR  RELATED  ARTICLE,
 INCLUDING  A  COMPONENT  PART,  OR  ACCESSORY, AS DEFINED IN THE FEDERAL
 FOOD, DRUG AND COSMETIC ACT, 21 USC, SECTION 321  (H)  AS  AMENDED  FROM
 TIME  TO  TIME, WHICH IS INTENDED FOR USE IN THE DIAGNOSIS OF DISEASE OR
 OTHER CONDITIONS, OR IN THE CURE, MITIGATION, TREATMENT,  OR  PREVENTION
 OF DISEASE, IN MAN OR OTHER ANIMALS.
   (P) "AFTERMARKET" MEANS ANY ENTITY THAT PROVIDES SERVICE PARTS, ACCES-
 SORIES, SECOND-HAND EQUIPMENT, TOOLS, OR DIAGNOSTIC SUPPORT FOR THE CARE
 OR ENHANCEMENT OF ORIGINAL EQUIPMENT.
   2.  FOR  EQUIPMENT  AND  PARTS  SOLD OR USED IN THIS STATE IN OR AFTER
 CALENDAR YEAR TWO THOUSAND TWELVE, THE OEMS OF SUCH EQUIPMENT AND  PARTS
 SHALL  MAKE  AVAILABLE  TO  INDEPENDENT  REPAIR  PROVIDERS  OR OWNERS OF
 PRODUCTS MANUFACTURED BY SUCH OEM IN A TIMELY MANNER:
   (A) (1) DOCUMENTATION, DIAGNOSTIC AND  REPAIR  INFORMATION,  INCLUDING
 REPAIR  TECHNICAL  UPDATES,  SCHEMATIC DIAGRAMS, UPDATES, CORRECTIONS TO
 EMBEDDED SOFTWARE AND SAFETY AND SECURITY PATCHES AT NO COST OR FOR  THE
 SAME  COST  AND  IN  THE SAME FORMAT SUCH OEM MAKES SUCH INFORMATION AND
 MATERIAL AVAILABLE TO ITS AUTHORIZED REPAIR PROVIDER; AND
   (2) MAKE AVAILABLE FOR PURCHASE BY THE EQUIPMENT  OWNER,  HIS  OR  HER
 AUTHORIZED AGENT OR INDEPENDENT REPAIR PROVIDER, PARTS, INCLUSIVE OF ANY
 UPDATES  TO THE EMBEDDED SOFTWARE OF THE PARTS, UPON FAIR AND REASONABLE
 TERMS. NOTHING IN THIS SUBDIVISION SHALL REQUIRE THE OEM TO  SELL  PARTS
 IF THE PARTS ARE NO LONGER AVAILABLE TO THE OEM OR THE AUTHORIZED REPAIR
 PROVIDER OF THE OEM.
   (B)  ANY OEM THAT SELLS ANY DIAGNOSTIC, SERVICE, OR REPAIR INFORMATION
 SHALL NOT REQUIRE AN AUTHORIZED REPAIR PROVIDER TO  PURCHASE  DOCUMENTA-
 TION,  DIAGNOSTIC,  SERVICE, OR REPAIR INFORMATION IN PROPRIETARY FORMAT
 IF SUCH INFORMATION IS  SOLD  OR  PROVIDED  TO  ANY  INDEPENDENT  REPAIR
 PROVIDER  OR  TO  ANY  OWNER IN A FORMAT THAT IS STANDARDIZED WITH OTHER
 OEMS, ON TERMS AND CONDITIONS MORE FAVORABLE THAN THE TERMS  AND  CONDI-
 TIONS  PURSUANT TO WHICH THE AUTHORIZED REPAIR PROVIDER OBTAINS THE SAME
 DIAGNOSTIC, SERVICE  OR  REPAIR  INFORMATION,  UNLESS  SUCH  PROPRIETARY
 FORMAT INCLUDES DOCUMENTATION, DIAGNOSTIC, SERVICE, OR REPAIR OPERATIONS
 INFORMATION  OR FUNCTIONALITY THAT IS NOT AVAILABLE IN SUCH STANDARDIZED
 FORMAT.
   (C) EACH OEM OF EQUIPMENT SOLD OR USED IN THE STATE OF NEW YORK  SHALL
 MAKE  AVAILABLE FOR PURCHASE BY OWNERS AND INDEPENDENT REPAIR FACILITIES
 ALL DIAGNOSTIC REPAIR TOOLS INCORPORATING THE  SAME  DIAGNOSTIC,  REPAIR
 AND  REMOTE COMMUNICATIONS CAPABILITIES THAT SUCH OEM MAKES AVAILABLE TO
 ITS OWN REPAIR OR ENGINEERING STAFF OR ANY AUTHORIZED  REPAIR  PROVIDER.

 S. 618--C                           4
 
 EACH  OEM  SHALL  OFFER SUCH TOOLS FOR SALE TO OWNERS AND TO INDEPENDENT
 REPAIR FACILITIES UPON FAIR AND REASONABLE TERMS.
   EACH  OEM  THAT  PROVIDES DIAGNOSTIC REPAIR INFORMATION TO AFTERMARKET
 TOOL, DIAGNOSTICS, OR THIRD PARTY SERVICE INFORMATION  PUBLICATIONS  AND
 SYSTEMS  SHALL  HAVE  FULLY SATISFIED ITS OBLIGATIONS UNDER THIS SECTION
 AND THEREAFTER NOT BE RESPONSIBLE FOR THE CONTENT AND  FUNCTIONALITY  OF
 AFTERMARKET DIAGNOSTIC TOOLS OR SERVICE INFORMATION SYSTEMS.
   (D)  OEM EQUIPMENT OR PARTS SOLD OR USED IN THE STATE OF NEW  YORK FOR
 THE PURPOSE OF PROVIDING  SECURITY-RELATED  FUNCTIONS  MAY  NOT  EXCLUDE
 DIAGNOSTIC,  SERVICE AND REPAIR INFORMATION NECESSARY TO RESET A SECURI-
 TY-RELATED ELECTRONIC FUNCTION FROM INFORMATION PROVIDED TO  OWNERS  AND
 INDEPENDENT  REPAIR FACILITIES UNLESS THE INFORMATION NECESSARY TO RESET
 AN IMMOBILIZER SYSTEM OR SECURITY-RELATED  ELECTRONIC  MODULE  SHALL  BE
 MADE  AVAILABLE  TO OWNERS AND INDEPENDENT REPAIR FACILITIES THROUGH THE
 APPROPRIATE SECURE DATA RELEASE SYSTEMS.
   3. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO  REQUIRE  AN  OEM  TO
 DIVULGE A TRADE SECRET.
   4.  NOTWITHSTANDING  ANY  LAW,  RULE OR REGULATION TO THE CONTRARY, NO
 PROVISION IN 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 OEM
 INCLUDING, BUT NOT LIMITED TO, THE PERFORMANCE OR PROVISION OF  WARRANTY
 OR  RECALL  REPAIR WORK BY AN AUTHORIZED REPAIR PROVIDER ON BEHALF OF AN
 OEM PURSUANT TO SUCH AUTHORIZED  REPAIR  AGREEMENT;  PROVIDED,  HOWEVER,
 THAT  ANY PROVISION IN SUCH AN AUTHORIZED REPAIR AGREEMENT THAT PURPORTS
 TO WAIVE, AVOID, RESTRICT OR LIMIT AN OEM'S COMPLIANCE WITH THIS SECTION
 SHALL BE VOID AND UNENFORCEABLE IF SUCH AUTHORIZED REPAIR  AGREEMENT  IS
 EXECUTED OR EXTENDED ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION.
   5.  NOTHING  IN  THIS  SECTION  SHALL  BE CONSTRUED TO REQUIRE OEMS OR
 AUTHORIZED REPAIR PROVIDERS TO PROVIDE AN OWNER  OR  INDEPENDENT  REPAIR
 PROVIDER  ACCESS TO NON-DIAGNOSTIC AND REPAIR INFORMATION PROVIDED BY AN
 OEM TO AN AUTHORIZED REPAIR PROVIDER PURSUANT TO THE TERMS OF AN AUTHOR-
 IZING AGREEMENT.
   6. NOTHING IN THIS SECTION SHALL APPLY TO MOTOR VEHICLE MANUFACTURERS,
 ANY PRODUCT OR SERVICE OF A MOTOR VEHICLE MANUFACTURER, MANUFACTURER  OF
 MOTOR  VEHICLE  EQUIPMENT,  OR  MOTOR VEHICLE DEALERS AS DEFINED IN THIS
 SECTION.
   7. NOTHING IN THIS SECTION SHALL REQUIRE A MANUFACTURER OF  A  MEDICAL
 DEVICE  AS  DEFINED  IN  THIS SECTION TO IMPLEMENT ANY PROVISION OF THIS
 SECTION THAT IS NOT PERMITTED UNDER THE FEDERAL FOOD, DRUG AND  COSMETIC
 ACT  OR  ANY  OTHER FEDERAL LAW, RULE OR REGULATION THAT SUPERSEDES THIS
 SECTION.
   8. ANY INDEPENDENT REPAIR PROVIDER THAT PURCHASES OR ACQUIRES EMBEDDED
 SOFTWARE OR SERVICE PARTS SHALL, PRIOR TO  PERFORMING  ANY  SERVICES  ON
 DIGITAL  ELECTRONIC  EQUIPMENT,  NOTIFY  THE  OWNER OF SUCH EQUIPMENT IN
 WRITING THAT:
   (A) CONSUMERS SHOULD REVIEW THE TERMS AND CONDITIONS OF  THE  WARRANTY
 FOR  SUCH  DIGITAL  ELECTRONIC  EQUIPMENT AS REPAIRS NOT PERFORMED BY AN
 AUTHORIZED REPAIR PROVIDER COULD AFFECT THE TERMS AND CONDITIONS OF  THE
 WARRANTY;
   (B) WARRANTORS CANNOT REQUIRE THAT ONLY BRANDED PARTS BE USED WITH THE
 PRODUCT IN ORDER TO RETAIN THE WARRANTY;
   (C) WARRANTORS SHALL DEMONSTRATE THAT A DEFECT OR DAMAGE WAS CAUSED BY
 INDEPENDENT REPAIR TO AFFECT THE WARRANTY;
   (D) WARRANTIES ARE GOVERNED BY THE FEDERAL MAGNUSON-MOSS WARRANTY ACT;
 AND

 S. 618--C                           5
 
   (E)  SUCH  INDEPENDENT  REPAIR  PROVIDER  IS  NOT AN AUTHORIZED REPAIR
 PROVIDER FOR SUCH DIGITAL ELECTRONIC EQUIPMENT.
   9.  (A)  WHENEVER  THE  ATTORNEY  GENERAL  SHALL BELIEVE FROM EVIDENCE
 SATISFACTORY TO HIM OR HER THAT ANY PERSON, FIRM, CORPORATION OR ASSOCI-
 ATION OR AGENT OR EMPLOYEE THEREOF HAS ENGAGED IN OR IS ABOUT TO  ENGAGE
 IN  ANY  OF THE ACTS OR PRACTICES IN VIOLATION OF THIS SECTION HE OR SHE
 MAY BRING A PROCEEDING IN THE NAME AND ON BEHALF OF THE  PEOPLE  OF  THE
 STATE  OF  NEW  YORK  TO  ENJOIN  SUCH UNLAWFUL ACTS OR PRACTICES AND TO
 OBTAIN RESTITUTION OF ANY MONEYS OR PROPERTY OBTAINED DIRECTLY OR  INDI-
 RECTLY  BY  ANY  SUCH ACTS OR PRACTICES IN VIOLATION OF THIS SECTION. IN
 SUCH PROCEEDING PRELIMINARY RELIEF MAY BE GRANTED UNDER  ARTICLE  SIXTY-
 THREE OF THE CIVIL PRACTICE LAW AND RULES.
   (B) EXCEPT AS PROVIDED HEREIN, BEFORE ANY VIOLATION OF THIS SECTION IS
 SOUGHT  TO  BE  ENJOINED,  THE  ATTORNEY  GENERAL  SHALL GIVE THE PERSON
 AGAINST WHOM SUCH PROCEEDING IS CONTEMPLATED NOTICE AND  AN  OPPORTUNITY
 TO SHOW IN WRITING, WITHIN FIVE BUSINESS DAYS AFTER THE DELIVERY OF SUCH
 NOTICE,  WHY  A PROCEEDING SHOULD NOT BE INSTITUTED AGAINST SUCH PERSON.
 SUCH NOTICE BY THE ATTORNEY GENERAL SHALL BE DELIVERED BY CERTIFIED MAIL
 AND BY FIRST-CLASS MAIL WITH PROOF OF MAILING. IN A PROCEEDING IN  WHICH
 THE  ATTORNEY GENERAL SEEKS PRELIMINARY RELIEF, SUCH NOTICE SHALL NOT BE
 REQUIRED UPON A FINDING BY THE ATTORNEY GENERAL THAT SUCH NOTICE IS  NOT
 IN THE PUBLIC INTEREST.
   (C) IN CONNECTION WITH ANY PROPOSED PROCEEDING UNDER THIS SECTION, THE
 ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A DETERMINATION OF
 THE  RELEVANT FACTS, AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL
 PRACTICE LAW AND RULES.
   (D) THIS SUBDIVISION SHALL APPLY TO ALL ACTS OR PRACTICES DECLARED  TO
 BE IN VIOLATION OF THIS SECTION, WHETHER OR NOT SUBJECT TO ANY OTHER LAW
 OF THIS STATE, AND SHALL NOT SUPERSEDE, AMEND OR REPEAL ANY OTHER LAW OF
 THIS  STATE  UNDER  WHICH THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE ANY
 ACTION OR CONDUCT ANY INQUIRY.
   (E) ANY PERSON, FIRM, CORPORATION OR ASSOCIATION OR AGENT OR  EMPLOYEE
 THEREOF  WHO  ENGAGES IN ANY OF THE ACTS OR PRACTICES TO BE IN VIOLATION
 OF THIS SECTION SHALL BE LIABLE TO A CIVIL PENALTY OF NOT MORE THAN FIVE
 HUNDRED DOLLARS FOR EACH VIOLATION, WHICH SHALL ACCRUE TO THE  STATE  OF
 NEW  YORK AND MAY BE RECOVERED IN A CIVIL ACTION BROUGHT BY THE ATTORNEY
 GENERAL.
   (F) EXCEPT IN THE INSTANCE OF A DISPUTE ARISING  BETWEEN  AN  ORIGINAL
 EQUIPMENT  MANUFACTURER  AND  ITS  AUTHORIZED REPAIR PROVIDER RELATED TO
 EITHER PARTY'S COMPLIANCE WITH AN EXISTING AUTHORIZED REPAIR  AGREEMENT,
 AN  AUTHORIZED  REPAIR  PROVIDER  SHALL HAVE ALL THE RIGHTS AND REMEDIES
 PROVIDED IN THIS SECTION.
   § 3. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.