SB795

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

MOTOR VEHICLES; AUTOMOTIVE REPAIR;

RIGHT TO REPAIR

§ -1 Definitions. As used in this chapter, unless the context otherwise requires:

"Dealer" means any person or business who, in the ordinary course of its business, lawfully sells or leases new motor vehicles to consumers or other end users pursuant to a franchise agreement and diagnoses, services, maintains, or repairs motor vehicles or motor vehicle engines pursuant to the franchise agreement.

"Fair and reasonable terms" means in determining whether a price is on "fair and reasonable terms", consideration may be given to relevant factors, including but not limited to:

(1) The net cost to the manufacturer-franchised dealerships for similar information obtained from manufacturers, less any discounts, rebates, or other incentive programs;

(2) The cost to the manufacturer to prepare and distribute the information, excluding any research and development costs incurred in designing and implementing, upgrading, or altering the onboard computer and its software or any other vehicle part or component; provided that amortized capital costs for the preparation and distribution of the information may be included;

(3) The price charged by other manufacturers for similar information;

(4) The price charged by manufacturers for similar information prior to the launch of manufacturer websites;

(5) The ability of aftermarket technicians or shops to afford the information;

(6) The means by which the information is distributed;

(7) The extent to which the information is used, which includes the number of users, and the frequency, duration, and volume of use; and

(8) Inflation.

"Franchise agreement" means an oral or written arrangement for a definite or indefinite period during which a manufacturer or distributor grants to a motor vehicle dealer a license to use a trade name, service mark, or related characteristic and in which there is a community of interest in the marketing of new motor vehicles or services related thereto at wholesale, retail, leasing, or otherwise.

"Heavy-duty vehicle" means any vehicle having a gross vehicle weight rating of more than fourteen thousand pounds.

"Immobilizer system" means an electronic device designed for the sole purpose of preventing the theft of a motor vehicle by preventing the motor vehicle in which it is installed from starting without the correct activation or authorization code.

"Independent repair facility" means a person or business operating in the State that is not affiliated with a manufacturer or manufacturer's authorized dealer of motor vehicles, which diagnoses, services, maintains, or repairs motor vehicles or motor vehicle engines; provided that for the purposes of this chapter, a dealer, notwithstanding its affiliation with any manufacturer, shall be considered an independent repair facility for the purposes of those instances when the dealer diagnoses, services, maintains, or repairs motor vehicles or motor vehicle engines that are not affiliated with the dealer's franchise manufacturer.

"Manufacturer" means any person or business engaged in the business of manufacturing or assembling new motor vehicles.

"Mechanical data" means any vehicle-specific data, including telematics system data, generated, stored in, or transmitted by a motor vehicle used for or otherwise related to the diagnosis, repair, or maintenance of the vehicle.

"Motor vehicle" means any self-propelled vehicle to be operated on the public highways.

"Owner" means a person or business who owns or leases a motor vehicle registered in the State.

"Telematics system" means any system in a motor vehicle that collects information generated by the operation of the vehicle and transmits the information, also known as "telematics system data", using wireless communications to a remote receiving point where it is stored.

"Trade secret" means anything tangible or intangible or electronically stored or kept that 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 in title 18 United States Code section 1839(3).

§ -2 Access by owners of motor vehicles and independent repair facilities to motor vehicle manufacturer diagnostic and repair information and diagnostic repair tools otherwise made available to dealers. (a) Except as provided in subsection (e), for model year 2002 motor vehicles and thereafter and model year 2013 heavy-duty vehicles and thereafter, a manufacturer of motor vehicles sold in the State shall make available for purchase by owners of motor vehicles manufactured by the manufacturer and by independent repair facilities the same diagnostic and repair information, including repair technical updates, that the manufacturer makes available to its dealers through the manufacturer's internet-based diagnostic and repair information system or other electronically accessible manufacturer's repair information system.

All content in the manufacturer's repair information system shall be made available to owners and to independent repair facilities in the same form and manner and to the same extent as it is to dealers utilizing the diagnostic and repair information system. Each manufacturer shall provide access to the manufacturer's diagnostic and repair information system for purchase by owners and independent repair facilities on a daily, monthly, and yearly subscription basis and upon fair and reasonable terms.

(b) A manufacturer that sells any diagnostic, service, or repair information to an independent repair facility or other third-party provider in a format that is standardized with other manufacturers, and on terms and conditions more favorable than the manner and the terms and conditions by which a dealer obtains the same diagnostic, service, or repair information, shall be prohibited from requiring any dealer to continue purchasing diagnostic, service, or repair information in a proprietary format, unless the proprietary format includes diagnostic, service, repair, or dealership operations information or functionality that is not available in the standardized format.

(c) Beginning with model year 2002 motor vehicles and thereafter and model year 2013 heavy-duty vehicles and thereafter, each manufacturer of motor vehicles sold in the State shall make available for purchase by owners and independent repair facilities all diagnostic repair tools incorporating the same diagnostic, repair and wireless capabilities that the manufacturer makes available to its dealers. The tools shall incorporate the same functional repair capabilities that the manufacturer makes available to dealers. Each manufacturer shall offer the tools for sale to owners and to independent repair facilities upon fair and reasonable terms.

Any diagnostic tool or information necessary to diagnose, service, or repair a motor vehicle that a manufacturer sells to an independent repair facility in a manner and on terms and conditions more favorable than the manner and the terms and conditions by which a dealer obtains the same diagnostic tool or information necessary to diagnose, service or repair a motor vehicle, shall also be offered to the dealer in the same manner and on the same terms and conditions as provided to the independent repair facility.

With respect to a manufacturer that sells to an independent repair facility any diagnostic tool necessary to diagnose, service, or repair a motor vehicle and the diagnostic tool communicates with the vehicle using the same non-proprietary interface used by other manufacturers, the manufacturer delivering such a diagnostic tool shall be prohibited from requiring any dealer from continuing to purchase that manufacturer's proprietary tool and interface, unless such proprietary interface has a capability not available in the non-proprietary interface.

Each manufacturer shall provide diagnostic repair information to each aftermarket scan tool company and each third-party service information provider with whom the manufacturer has appropriate licensing, contractual, or confidentiality agreements for the sole purpose of building aftermarket diagnostic tools and third-party service information publications and systems. Once a manufacturer makes the information available pursuant to this section, the manufacturer shall be considered to have 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) Beginning with model year 2018, except as provided in subsection (e), manufacturers of motor vehicles sold in the State, including heavy-duty vehicles that are not heavy-duty vehicles built to custom specifications sold in the State for commercial purposes, shall provide access to their onboard diagnostic and repair information system, as required under this section, using an off-the-shelf personal computer with sufficient memory, processor speed, connectivity, and other capabilities as specified by the vehicle manufacturer and:

(1) A non-proprietary vehicle interface device that complies with the Society of Automotive Engineers standard J2534, Society of Automotive Engineers J1939, commonly referred to as SAE J2534 and SAE J1939, the International Organization for Standardization standard 22900, commonly referred to as ISO 22900 or any successor to SAE J2534, SAE J1939 or ISO 22900 as may be accepted or published by the Society of Automotive Engineers or the International Organization for Standardization;

(2) An onboard diagnostic and repair information system integrated and entirely self-contained within the vehicle, including but not limited to service information systems integrated into an onboard display; or

(3) A system that provides direct access to onboard diagnostic and repair information through a non-proprietary vehicle interface, such as ethernet, universal serial bus, or digital versatile disc.

Each manufacturer shall provide access to the same onboard diagnostic and repair information available to its dealers, including technical updates to such onboard systems, through such non-proprietary interfaces as referenced in this subsection. Nothing in this chapter shall be construed to require a dealer to use a non-proprietary vehicle interface specified in this subsection, nor shall this chapter be construed to prohibit a manufacturer from developing a proprietary vehicle diagnostic and reprogramming device; provided that the manufacturer also complies with this subsection, makes this device available to independent repair facilities upon fair and reasonable terms, and otherwise complies with subsection (a).

Notwithstanding anything in the preceding paragraph, motor vehicle owners' and independent repair facilities' access to vehicle on-board diagnostic systems shall be standardized and not require any authorization by the manufacturer, directly or indirectly, unless the authorization system for access to vehicle networks and their on-board diagnostic systems is standardized across all makes and models sold in the State and is administered by an entity unaffiliated with a manufacturer.

No manufacturer shall be prohibited from making proprietary tools available to dealers if the tools are for a specific specialized diagnostic or repair procedure developed for the sole purpose of a customer service campaign meeting the requirements set out in title 49 Code of Federal Regulations section 579.5, or performance of a specific technical service bulletin or recall after the vehicle was produced, and where original vehicle design was not originally intended for direct interface through a non-proprietary interface as described in this subsection.

Provision of the proprietary tools under this subsection shall not constitute a violation of this chapter even if the tools provide functions not available through the interface set forth in this subsection; provided that the proprietary tools are also available to the aftermarket upon fair and reasonable terms. Nothing in this subsection shall authorize manufacturers to exclusively develop proprietary tools, without a non-proprietary equivalent, for diagnostic or repair procedures that fall outside the provisions of this subsection or to otherwise operate in a manner inconsistent with this subsection.

(e) Manufacturers of motor vehicles sold in the State may exclude diagnostic, service, and repair information necessary to reset an immobilizer system or security-related electronic modules from information provided to owners and independent repair facilities. If excluded under this subsection, the information necessary to reset an immobilizer system or security-related electronic modules shall be obtained by owners and independent repair facilities through the secure data release model system currently used by the National Automotive Service Task Force or other known, reliable, and accepted systems.

(f) Beginning with model year 2022, a manufacturer of motor vehicles sold in the State, including heavy-duty vehicles having a gross vehicle weight rating of more than fourteen thousand pounds, that utilizes a telematics system shall be required to equip such vehicles with an inter-operable, standardized, and open-access platform across all of the manufacturer's makes and models. The platform shall be capable of securely communicating all mechanical data emanating directly from the motor vehicle via direct data connection to the platform. The platform shall be directly accessible by the owner of the vehicle through a mobile-based application and upon the authorization of the vehicle owner, all mechanical data shall be directly accessible by an independent repair facility, limited to the time to complete the repair or for a period of time agreed to by the vehicle owner for the purposes of maintaining, diagnosing, and repairing the motor vehicle. Access shall include the ability to send commands to in-vehicle components if needed for purposes of maintenance, diagnostics and repair.

(g) The director of commerce and consumer affairs shall establish for prospective vehicle owners a motor vehicle telematics system notice that includes but is not limited to the following:

(1) An explanation of motor vehicle telematics and its purposes;

(2) A description summarizing the mechanical data collected, stored, and transmitted by a telematics system;

(3) The prospective owner's ability to access the vehicle's mechanical data through a mobile device; and

(4) An owner's right to authorize an independent repair facility to access the vehicle's mechanical data for vehicle diagnostics, repair, and maintenance purposes.

The notice form shall provide for the prospective owner's signature certifying that the prospective owner has read the telematics system notice.

(h) When selling or leasing motor vehicles containing a telematics system, a dealer shall provide the motor vehicle telematics system notice to the prospective owner, obtain the prospective owner's signed certification that the prospective owner has read the notice, and provide a copy of the signed notice to the prospective owner.

A dealer's failure to comply with this subsection shall be grounds for any action by the licensing authority relative to the dealer's license, up to and including revocation.

§ -3 Protection of manufacturer trade secrets. Nothing in this chapter shall be construed to require a manufacturer to divulge a trade secret.

§ -4 Construction of chapter with other laws or franchise agreements. Notwithstanding any law to the contrary, nothing in this chapter shall be construed to abrogate, interfere with, contradict, or alter the terms of any franchise agreement executed and in force between a dealer and a manufacturer, including but not limited to the performance or provision of warranty or recall repair work by a dealer on behalf of a manufacturer pursuant to such franchise agreement; provided that any provision in a franchise agreement that purports to waive, avoid, restrict, or limit a manufacturer's compliance with this chapter shall be void and unenforceable.

§ -5 Access to non-diagnostic and repair information not required. Nothing in this chapter shall be construed to require manufacturers or dealers to provide an owner or independent repair facility access to non-diagnostic and repair information provided by a manufacturer to a dealer or by a dealer to a manufacturer pursuant to the terms of a franchise agreement.

§ -6 Remedies for violation of chapter. (a) In addition to any other remedies that may be available, any violation of this chapter shall be deemed to be unfair competition and a restraint of trade under chapter 480.

(b) An independent repair facility or owner that believes that a manufacturer has failed to provide information or a tool required by this chapter shall notify the manufacturer, in writing, through the National Automotive Service Task Force Service Information Request process, or its successor organization or process, and give the manufacturer thirty days from the time the manufacturer receives the complaint to cure the failure. If the manufacturer cures the complaint within the time period, damages shall be limited to actual damages in any subsequent litigation.

(c) If a manufacturer fails to respond to the notice provided pursuant to subsection (b), or if an independent repair facility or owner is not satisfied with the manufacturer's cure, the independent repair facility or owner may file a complaint in the circuit court or, if applicable, in the federal district court for the district of Hawaii.

The complaint shall include but not be limited to:

(1) Written information confirming that the complainant has visited the relevant manufacturer website and attempted to effect a proper repair utilizing information provided on the website, including communication with customer assistance via the manufacturer's toll-free call-in assistance, if made available by the manufacturer;

(2) Written information confirming that the complainant has obtained and utilized the relevant manufacturer's scan or diagnostic tool necessary for the repair; and

(3) Evidence of manufacturer notification as set out in subsection (b).

(d) Except in the case of a dispute arising between a franchisor manufacturer and its franchisee dealer related to either party's compliance with an existing franchise agreement, a dealer shall have all the rights and remedies provided in this chapter, including but not limited to exercising the rights and remedies allowed an independent repair facility.

(e) Notwithstanding subsections (b) and (c), any owner or independent repair facility authorized by an owner who has been denied access to mechanical data in violation of sections - 2(d)(1) or (f) may initiate a civil action seeking any remedies under law. Each denial of access in violation of these sections shall be compensable by an award of treble damages or $10,000, whichever amount is greater."

SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	795
THIRTY-THIRD LEGISLATURE, 2025
STATE OF HAWAII