S 3068 Introduced – AG Right-to-Repair

Sen Welch (D,VT) introduced S 3068, the Freedom for Agricultural Repair and Maintenance (FARM) Act. The bill would require covered original equipment manufacturers (OEM) to make available any documentation, part, software, firmware, or tool intended for use in order to diagnose, maintain, upgrade, reprogram, or repair farm equipment. It would also require OEM to make available to owners any farm equipment data generated by the farm equipment of the owner. No new funding is authorized by this bill.

The bill is very similar to HR 5604, the Agricultural Right to Repair Act, introduced by Rep Perez (D,WA) in September 2023. No action was taken on that bill in the 118^th Congress. Most of the differences between the two bills are editorial. The major changes in S 3068 include:

• Removing the definition of the ‘embedded software’,

• Adding the definition of ‘maintenance’, and

• Adding additional enforcement authority for the FTC.

Definitions

Section 2 of the bill provides the definition of 16 key terms used in the legislation. These definitions include the following technical terms:

• Farm equipment data,

• Firmware,

• Maintenance,

• Software bill of materials, and

• Tool.

The definition of the term ‘fair and reasonable terms’ is extensive and goes past the scope of a normal definition by establishing guidelines for determining what is a fair and reasonable cost for:

• Parts,

• Tools, and

• Documentation

OEM Requirements

Section 3 of the bill establishes requirements for agricultural original equipment manufacturer. In general, OEM would be required to make available:

• To any owner or independent repair provider, any documentation, part, software, firmware, or tool intended for use in order to diagnose, maintain, upgrade, reprogram, or repair farm equipment,

• To the owner or with the authorization of the owner to an independent repair provider, any farm equipment data generated by the farm equipment of the owner, and

• To any owner or independent repair provider, any documentation, part, software, or tool required to disable or enable a technological protection measure or other security-related function of farm equipment.

Subsection (c) deals with copyright issues related to the right-to-repair. It would allow any person to “circumvent a technological measure that effectively controls access to a work protected” under 17 USC, Copyrights, to:

• Diagnose, maintain, upgrade, reprogram, or repair farm equipment,

• Enable interoperability with any computer program or device used in farm equipment,

• Conduct security research relating to farm equipment, or

• Enable non-infringing modifications of any computer program contained in and that controls the functioning of farm equipment or any device used to diagnose, maintain, upgrade, reprogram, or repair farm equipment.

To make those rights effective paragraph (2) specifically allows any person to “manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof that is primarily designed or produced for the purpose of or use in circumventing a technological measure that effectively controls access to a work” protected under 17 USC.

FTC Oversight

Section 4 provides that a violation of the OEM requirements outlined in the bill will be deemed to be ‘unfair or deceptive practices’ under FTC regulations {15 USC 57a(a)(1)(B)} and would require the FTC to enforce provisions of this legislation and any resulting regulations as if “all applicable terms and provisions of the Federal Trade Commission Act” were specifically incorporated in the bill.

Section 5 of the bill would require the FTC to promulgate such regulations as are necessary to carry out the provisions of this Act. Subsection (b) requires that those regulations would be incompliance with 40 CFR 1068.101(b)(1) and (b)(6), the EPA rules prohibiting the disablement of emissions control devices.

Subsection 4(c) provides the FTC with the authority to assess civil fines for violations of §3(d)(a). Those penalties would be for:

• The first violation, in an amount of $1,000 for each day such OEM was in violation.

• The second violation, in an amount of $2,000 for each day such OEM was in violation, and

• The third and subsequent violations, in an amount of $5,000 for each day such OEM was in violation.

Safety Exceptions

Among the ‘limitations’ outlined in Section 6 of the bill on the requirements for OEM, paragraph (5) outlines the safety and environmental limitations on the right-to-repair requirements outlined in the Act. It notes that OEM are not required to allow:

• Any modification that permanently deactivates a safety notification system when farm equipment is being repaired,

• Access to any function of a tool that enables the owner or independent repair provider to change the settings of farm equipment so as to bring the equipment permanently out of compliance with any applicable safety or emissions laws,

• The violation of emissions laws or copyright laws, or

• Any other illegal modification activities.

Moving Forward

While Welch is not a member of the Senate Commerce, Science, and Transportation Committee to which this bill was assigned for consideration, one of his two cosponsors, Sen Fetterman (D,OH) is a member. This means that there may be sufficient influence to see the bill considered in Committee. I suspect, however, that there will be substantial opposition to this bill among the Republican members of the Committee, so the bill will not likely be taken up by the Committee.