HR5039-119

1. Short title This Act may be cited as the Wheelchair Right to Repair Act.

2. Exception for Circumvention of copyright protection systems Section 1201 of title 17, United States Code, is amended by adding at the end the following new subsection: Notwithstanding the provisions of subsection (a)(1)(A), it is not a violation of that subsection for a person, for the purpose of the diagnosis, maintenance, or repair of a powered mobility assistance device, to circumvent a technological measure that effectively controls access to a work protected under this title. Notwithstanding the provisions of subsections (a)(2) and (b)(1), it is not a violation of that subsection for a person, for the purpose of the diagnosis, maintenance, or repair of a powered mobility assistance device, to manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof described in that subsection. In this subsection, the term powered mobility assistance device means— a motorized wheeled device designed for use by an individual with a physical disability; and a wearable robotic device designed to augment and enhance the physical ability of an individual to walk. (l)Diagnosis, maintenance, and repair of powered mobility assistance devices (1)Exception for accessNotwithstanding the provisions of subsection (a)(1)(A), it is not a violation of that subsection for a person, for the purpose of the diagnosis, maintenance, or repair of a powered mobility assistance device, to circumvent a technological measure that effectively controls access to a work protected under this title. (2)Exception for manufacture, importation, and offer to publicNotwithstanding the provisions of subsections (a)(2) and (b)(1), it is not a violation of that subsection for a person, for the purpose of the diagnosis, maintenance, or repair of a powered mobility assistance device, to manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof described in that subsection. (3)Powered mobility assistance device definedIn this subsection, the term powered mobility assistance device means— (A)a motorized wheeled device designed for use by an individual with a physical disability; and (B)a wearable robotic device designed to augment and enhance the physical ability of an individual to walk..

3. Requirement to make diagnostic, maintenance, and repair tools available to independent repair providers for powered mobility assistance device In the case of a powered mobility assistance device manufactured by or on behalf of, sold, or otherwise supplied by an original equipment manufacturer, the original equipment manufacturer shall make available, in a timely manner and on fair and reasonable terms, for the purpose of diagnosis, maintenance, or repair of the device, to an independent repair provider and owner, any documentation, part, embedded software, firmware, and other tool that is needed for repair of the device. For a powered mobility assistance device that contains an electronic security lock or other security-related function, the original equipment manufacturer shall make available, in a timely manner and on fair and reasonable terms, to an independent repair provider and owner, any documentation, part, embedded software, firmware, or other tool needed to disable the lock or function, and to reset the lock or function when disabled in the course of diagnosis, maintenance, or repair of the device. Any such documentation, part, software, firmware, or other tool may be made available to an independent repair provider and owner through an appropriate secure data release system. Not later than 90 days after the date of the enactment of this Act an original equipment manufacturer of a powered mobility assistance device— shall provide to any such provider and owner a clear and conspicuous notice of the rights of the provider and owner under this subsection; and shall establish and make public a standard process by which a request can be made by an owner or independent repair provider under paragraphs (1) and (2). An original equipment manufacturer of a powered mobility assistance device shall provide with any purchase of such device on and after the date of the enactment of this Act a clear and conspicuous notice of the rights of the owner and any other intended user of the device under this subsection. An independent repair provider and owner of a powered mobility assistance device shall provider to any intended user of that device a clear and conspicuous notice of the rights of the user under this subsection. A violation of subsection (a) 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)). 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. The Commission may, under section 553 of title 5, United States Code, prescribe any regulations it determines necessary to carry out this Act. Nothing in this Act shall be construed to limit the authority of the Commission under any other provision of law. 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 subsection (a), 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 State 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— enjoin further such violation by such person; enforce compliance with such subsection; obtain civil penalties; and obtain damages, restitution, or other compensation on behalf of residents of the State. 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— to intervene in the action; upon so intervening, to be heard on all matters arising therein; and to file petitions for appeal. 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. 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. An original equipment manufacturer or authorized repair provider is not liable for any damage to or injury from any powered mobility assistance device caused by an independent repair provider or owner that occurs during the diagnosis, maintenance, or repair of the device and is not attributable to the original equipment manufacturer or authorized repair provider, unless the damage or injury is attributable to a design or manufacturing defect of the device. Nothing in this section may be construed to alter any term of an arrangement 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, except that any such term that waives, avoids, restricts, or limits the requirements of the original equipment manufacturer to comply with this section is void and unenforceable. Nothing in this section may be construed to require an original equipment manufacturer to sell a part if the part is no longer available. Nothing in this section may be construed to require an original equipment manufacturer to divulge a trade secret to an independent repair provider or owner, except as necessary to provide any documentation, part, embedded software, firmware, or other tool in accordance with this section. Not later than 90 days after the date of the enactment of this Act, the Commission shall identify, notify, and educate independent repair providers about the requirements of this section. In this section: The term authorized repair provider— means a person that is unaffiliated with the original equipment manufacturer and has an arrangement with an original equipment manufacturer under which the original equipment manufacturer grants the person 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 powered mobility assistance device under the name of the original equipment manufacturer, or other arrangement with the original equipment manufacturer to offer such services on behalf of the original equipment manufacturer; and includes an original equipment manufacturer that provides diagnosis, maintenance, or repair of a powered mobility assistance device manufactured by that manufacturer and that does not have an arrangement described in subparagraph (A). The term Commission means the Federal Trade Commission. The term documentation means any manual, maintenance procedure, functional and wiring diagram, reporting output, service code description, circuit board schematic, security code, password, training material, troubleshooting information, list of required tools, parts list, or other guidance or information used in providing diagnosis, maintenance, or repair of a powered mobility assistance device. The term embedded software— means any programmable software instruction delivered with or loaded onto equipment, or a part of such equipment, to allow the equipment or part to operate or communicate with other computer hardware; and includes any relevant patch and fix that the manufacturer makes for purposes of diagnosis, maintenance, or repair of equipment. The term fair and reasonable terms, with respect to the provision of a any documentation, part, embedded software, firmware, or other tool, means at costs and terms that are equivalent to the most favorable costs and terms under which an original equipment manufacturer offers the documentation, part, software, firmware, or tool to an authorized repair provider— accounting for any discount, rebate, convenient means of delivery, means of enabling fully restored and updated functionality, rights of use, or other incentive or preference the original equipment manufacturer offers to an authorized repair provider, or any additional cost, burden, or impediment the original equipment manufacturer imposes on an independent repair provider; not conditioned on or imposing a substantial obligation or restriction that is not reasonably necessary for enabling the independent repair provider or owner to engage in the diagnosis, maintenance, or repair of the device made by or on behalf of the original equipment manufacturer; and not conditioned on an arrangement described in paragraph (1)(A). The term firmware means a software program or set of instructions programmed on a powered mobility assistance device, or on a part for such device, that allows the device or part to communicate within the device or part or with other device hardware. The term independent repair provider means a person that operates in a State, that does not have an arrangement described in paragraph (1)(A) with an original equipment manufacturer, and who is engaged in the services of diagnosis, maintenance, or repair of a powered mobility assistance device. The term original equipment manufacturer means a person engaged in the business of selling, leasing, or otherwise supplying new powered mobility assistance devices manufactured by or on behalf of itself, to any individual or other person. The term owner means a person who owns or leases powered mobility assistance device purchased or used in the United States. The term part means any replacement part, new or used, generally available or used by an original equipment manufacturer or an authorized repair provider of the manufacturer for providing maintenance or repair of a powered mobility assistance device manufactured by or on behalf of, sold, or otherwise supplied by the original equipment manufacturer. The term powered mobility assistance device means— a motorized wheeled device designed for use by an individual with a physical disability; and a wearable robotic device designed to augment and enhance the physical ability of an individual to walk. The term tool means any software program, hardware implement, or other apparatus used for diagnosis, maintenance, or repair of a powered mobility assistance device, including software or other mechanism that provisions, programs, or pairs a new part, calibrates functionality, or performs any other function required to bring the product back to fully functional condition, including any update. The term trade secret has the meaning given that term in section 1839 of title 18, United States Code.