An act relating to creating a right to repair agricultural equipment

BILL AS INTRODUCED H.58 2021 Page 1 of 9 VT LEG #351960 v.1 H.58 1 Introduced by Representative Kornheiser of Brattleboro 2 Referred to Committee on 3 Date: 4 Subject: Agriculture; commerce and trade 5 Statement of purpose of bill as introduced: This bill proposes to promote 6 sustainable and affordable agricultural practices by requiring manufacturers of 7 electronics-enabled equipment used in agriculture, animal husbandry, and 8 ranching to make available to farmers, ranchers, and independent repair 9 providers, on fair and reasonable terms, the documentation, parts, and tools 10 used to diagnose, maintain, and repair such equipment. 11 An act relating to creating a right to repair agricultural equipment 12 It is hereby enacted by the General Assembly of the State of Vermont: 13 Sec. 1. SHORT TITLE 14 This act may be cited as the Agricultural Right-to-Repair Act. 15 Sec. 2. 9 V.S.A. chapter 106 is added to read: 16 CHAPTER 106: AGRICULTURAL EQUIPMENT; RIGHT TO REPAIR 17 § 4151. DEFINITIONS 18 As used in this chapter: 19 BILL AS INTRODUCED H.58 2021 Page 2 of 9 VT LEG #351960 v.1 (1) “Authorized repair provider” means an individual or business who is 1 unaffiliated with an original equipment manufacturer and who has an 2 arrangement with the original equipment manufacturer, for a definite or 3 indefinite period, under which the original equipment manufacturer grants to 4 the individual or business a license to use a trade name, service mark, or other 5 proprietary identifier for the purposes of offering the services of diagnosis, 6 maintenance, or repair of electronics-enabled agricultural equipment under the 7 name of the original equipment manufacturer, or other arrangement with the 8 original equipment manufacturer to offer such services on behalf of the 9 original equipment manufacturer. An original equipment manufacturer who 10 offers the services of diagnosis, maintenance, or repair of its own electronics-11 enabled agricultural equipment, and who does not have an arrangement 12 described in this subdivision with an unaffiliated individual or business, shall 13 be considered an authorized repair provider with respect to such equipment. 14 (2) “Electronics-enabled agricultural equipment” or “equipment” means 15 any product, part of a product, or attachment to a product, when sold or leased 16 for use in farming, ranching, or other agriculture, that depends for its 17 functioning, in whole or in part, on digital electronics embedded in or attached 18 to it. The term includes a tractor, trailer, combine, tillage, planting, irrigation, 19 or cultivating implement, baler, unmanned aircraft system, or off-road vehicle. 20 BILL AS INTRODUCED H.58 2021 Page 3 of 9 VT LEG #351960 v.1 “Electronics-enabled agricultural equipment” or “equipment” does not include 1 motor vehicles as defined in subdivision (8) of this section. 2 (3) “Documentation” means any manual, diagram, reporting output, 3 service code description, schematic, or other guidance or information used in 4 effecting the services of diagnosis, maintenance, or repair of electronics-5 enabled agricultural equipment. 6 (4) “Embedded software” means any programmable instructions 7 provided on firmware delivered with electronics-enabled agricultural 8 equipment, or with a part for such equipment, for purposes of equipment 9 operation, including all relevant patches and fixes made by the manufacturer of 10 such equipment or part for these purposes. 11 (5) “Fair and reasonable terms” means the following in the context 12 specified: 13 (A) For obtaining a part or tool or documentation, “fair and 14 reasonable terms” means at costs and terms that are equivalent to the most 15 favorable costs and terms under which an original equipment manufacturer 16 offers the part, tool, or documentation to an authorized repair provider: 17 (i) accounting for any discount, rebate, convenient means of 18 delivery, means of enabling fully restored and updated functionality, rights of 19 use, or other incentive or preference the original equipment manufacturer 20 offers to an authorized repair provider, or any additional cost, burden, or 21 BILL AS INTRODUCED H.58 2021 Page 4 of 9 VT LEG #351960 v.1 impediment the original equipment manufacturer imposes on an independent 1 repair provider; 2 (ii) not conditioned on or imposing a substantial obligation or 3 restriction that is not reasonably necessary for enabling the owner or 4 independent repair provider to engage in the diagnosis, maintenance, or repair 5 of electronics-enabled agricultural equipment made by or on behalf of the 6 original equipment manufacturer; and 7 (iii) not conditioned on an arrangement described in subdivision 8 (1) of this section. 9 (B) For documentation, including any relevant updates, “fair and 10 reasonable terms” also means at no charge, except that, when the 11 documentation is requested in physical printed form, a charge may be included 12 for the reasonable actual costs of preparing and sending the copy. 13 (C) For software tools, “fair and reasonable terms” also means at no 14 charge and without requiring authorization or internet access, or imposing 15 impediments to access or use, in the course of effecting the diagnosis, 16 maintenance, or repair and enabling full functionality of electronics-enabled 17 agricultural equipment, in a manner that impairs the efficient and cost-effective 18 performance of any of those activities. 19 (6) “Firmware” means a software program or set of instructions 20 programmed on electronics-enabled agricultural equipment, or on a part for 21 BILL AS INTRODUCED H.58 2021 Page 5 of 9 VT LEG #351960 v.1 such equipment, to allow the equipment or part to communicate within itself or 1 with other computer hardware. 2 (7) “Independent repair provider” means an individual or business 3 operating in this State, who does not have an arrangement described in 4 subdivision (1) of this section with an original equipment manufacturer, and 5 who is not affiliated with any individual or business who has such an 6 arrangement, and who is engaged in the services of diagnosis, maintenance, or 7 repair of electronics-enabled agricultural equipment, except that an original 8 equipment manufacturer or, with respect to that original equipment 9 manufacturer, an individual or business who has such an arrangement with that 10 original equipment manufacturer, or who is affiliated with an individual or 11 business who has such an arrangement with that original equipment 12 manufacturer, shall be considered an independent repair provider for purposes 13 of those instances in which it engages in the services of diagnosis, 14 maintenance, or repair of electronics-enabled agricultural equipment that is not 15 manufactured by or sold under the name of that original equipment 16 manufacturer. 17 (8) “Motor vehicle” means a vehicle that is designed for transporting 18 persons or property on a street or highway and is certified by the manufacturer 19 under all applicable federal safety and emissions standards and requirements 20 for distribution and sale in the United States. Motor vehicle does not include: 21 BILL AS INTRODUCED H.58 2021 Page 6 of 9 VT LEG #351960 v.1 (A) a motorcycle; or 1 (B) a recreational vehicle or an auto home equipped for habitation. 2 (9) “Original equipment manufacturer” means a business engaged in the 3 business of selling, leasing, or otherwise supplying new electronics-enabled 4 agricultural equipment manufactured by or on behalf of itself to any individual 5 or business. 6 (10) “Owner” means an individual or business who owns or leases 7 electronics-enabled agricultural equipment purchased or used in this State. 8 (11) “Part” means any replacement part, either new or used, made 9 available by an original equipment manufacturer for purposes of effecting the 10 services of maintenance or repair of electronics-enabled agricultural equipment 11 manufactured by or on behalf of, sold or otherwise supplied by, the original 12 equipment manufacturer. 13 (12) “Tools” means any software program, hardware implement, or 14 other apparatus used for diagnosis, maintenance, or repair of electronics-15 enabled agricultural equipment, including software or other mechanisms that 16 provision, program, or pair a new part, calibrate functionality, or perform any 17 other function required to bring the product back to fully functional condition. 18 (13) “Trade secret” has the same meaning as in 9 V.S.A. § 4601. 19 BILL AS INTRODUCED H.58 2021 Page 7 of 9 VT LEG #351960 v.1 § 4152. REQUIREMENTS. 1 (a) For electronics-enabled agricultural equipment, and parts for such 2 equipment, sold or used in this State, an original equipment manufacturer shall 3 make available, for purposes of diagnosis, maintenance, or repair of such 4 equipment, to any independent repair provider, or to the owner of electronics-5 enabled agricultural equipment manufactured by or on behalf of, or sold or 6 otherwise supplied by, the original equipment manufacturer, on fair and 7 reasonable terms, documentation, parts, and tools, inclusive of any updates to 8 information or embedded software. Nothing in this subsection requires an 9 original equipment manufacturer to make available a part if the part is no 10 longer available to the original equipment manufacturer. 11 (b) For equipment that contains an electronic security lock or other 12 security-related function, the original equipment manufacturer shall make 13 available to the owner and to independent repair providers, on fair and 14 reasonable terms, any special documentation, tools, and parts needed to disable 15 the lock or function and to reset it when disabled in the course of diagnosis, 16 maintenance, or repair of the equipment. Such documentation, tools, and parts 17 may be made available by means of an appropriate secure system. 18 (c) When the original equipment manufacturer has made an express 19 warranty with respect to electronics-enabled agricultural equipment and the 20 wholesale price of the equipment is $100.00 or more, the manufacturer shall 21 BILL AS INTRODUCED H.58 2021 Page 8 of 9 VT LEG #351960 v.1 provide such parts, tools, and documentation as to enable the repair of the 1 equipment during the warranty period, at an equitable price and convenience of 2 delivery and of enabling functionality, in light of: 3 (1) the actual cost to the original equipment manufacturer to prepare and 4 distribute the part, tool, or documentation, exclusive of any research and 5 development costs incurred; 6 (2) the ability of owners and independent repair providers to afford the 7 part, tool, or documentation; and 8 (3) the means by which the part, tool, or documentation is distributed. 9 § 4153. ENFORCEMENT 10 (a) A person who violates a provision of this chapter commits an unfair and 11 deceptive act in trade and commerce in violation of 9 V.S.A § 2453. 12 (b) The Attorney General has the same authority to make rules, conduct 13 civil investigations, enter into assurances of discontinuance, and bring civil 14 actions as provided in chapter 63, subchapter 1 of this title. 15 § 4154. LIMITATION 16 (a) Nothing in this chapter shall be construed to require an original 17 equipment manufacturer to divulge a trade secret to an owner or an 18 independent service provider except as necessary to provide documentation, 19 parts, and tools on fair and reasonable terms. 20 BILL AS INTRODUCED H.58 2021 Page 9 of 9 VT LEG #351960 v.1 (b) No provision in this chapter shall be construed to alter the terms of any 1 arrangement described in subdivision 4151(1) of this section in force between 2 an authorized repair provider and an original equipment manufacturer, 3 including the performance or provision of warranty or recall repair work by an 4 authorized repair provider on behalf of an original equipment manufacturer 5 pursuant to such arrangement, except that any provision in such terms that 6 purports to waive, avoid, restrict, or limit the original equipment 7 manufacturer’s obligations to comply with this chapter shall be void and 8 unenforceable. 9 Sec. 3. APPLICABILITY 10 This act applies with respect to equipment sold or in use on or after the 11 effective date of this act. 12 Sec. 4. EFFECTIVE DATE 13 This act shall take effect on July 1, 2021. 14