[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3549 Introduced in Senate (IS)]
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117th CONGRESS
2d Session
S. 3549
To require original equipment manufacturers to make available certain
documentation, parts, software, and tools with respect to electronics-
enabled implements of agriculture, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 1, 2022
Mr. Tester (for himself and Mr. Lujan) introduced the following bill;
which was read twice and referred to the Committee on Commerce,
Science, and Transportation
_______________________________________________________________________
A BILL
To require original equipment manufacturers to make available certain
documentation, parts, software, and tools with respect to electronics-
enabled implements of agriculture, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Agricultural Right to Repair Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Authorized repair provider.--The term ``authorized
repair provider''--
(A) means, with respect to an electronics-enabled
implement of agriculture of an original equipment
manufacturer, a person that has an arrangement with an
OEM under which the OEM grants such person a license to
use a trade name, service mark, or other proprietary
identifier for the purposes of offering diagnosis,
maintenance, or repair services for the electronics-
enabled implement of agriculture on behalf of such
person or the OEM; and
(B) includes, with respect to digital electronic
equipment, an OEM who offers diagnosis, maintenance, or
repair services for the digital electronic equipment
that the OEM manufactures or offers for sale.
(2) Commonly available.--The term ``commonly available''
means any item that is commercially available for purchase from
more than a single seller and is not solely made available by
an OEM for use on such OEM's products.
(3) Digital electronic equipment; equipment.--The term
``digital electronic equipment'' or ``equipment'' means any
product that depends for its functioning, in whole or in part,
on digital electronics embedded in or attached to the product.
(4) Documentation.--The term ``documentation'' means any
manual, diagram, reporting output, service code description,
schematic, library of diagnosed issues, software bill of
material, or other guidance or information used in effecting
the services of diagnosis, maintenance, or repair of an
electronics-enabled implement of agriculture.
(5) Electronics-enabled implement of agriculture.--The term
``electronics-enabled implement of agriculture'' means
equipment that--
(A) is designed for agricultural purposes;
(B) is exclusively used by the owner of the
equipment in the conduct of the agricultural operations
of the owner; and
(C) depends for its functioning, in whole or in
part, on digital electronic equipment.
(6) Embedded software.--The term ``embedded software''
means a programmable instruction provided on firmware delivered
with an electronics-enabled implement of agriculture.
(7) Fair and reasonable terms.--The term ``fair and
reasonable terms'' means, with respect to a part, tool,
software, or documentation offered by an OEM:
(A) In general.--
(i) Costs.--Costs that are equivalent to
the lowest actual cost for which the OEM offers
the part, tool, software, or documentation to
an authorized repair provider, including any
discount, rebate, or other financial incentive
offered to an authorized repair provider.
(ii) Terms.--Terms that--
(I) are equivalent to the most
favorable terms under which an OEM
offers the part, tool, software, or
documentation to an authorized repair
provider, including the methods and
timeliness of delivery of the part,
tool, software, or documentation;
(II) do not impose on an owner or
an independent repair provider any
substantial obligation to use or any
restriction on the use of the part,
tool, software, or documentation to
diagnose, maintain, or repair an
electronics-enabled implement of
agriculture made by the OEM, including
a condition that the owner or
independent repair provider become an
authorized repair provider or a
requirement that a part or tool be
registered, paired with, or approved by
the OEM or an authorized repair
provider before such part or tool is
operational; and
(III) prohibit an OEM or an
authorized repair provider from
imposing any additional cost or burden
that is not reasonably necessary or is
designed to be an impediment on the
owner or independent repair provider.
(B) For documentation.--With respect to
documentation, that the documentation is made available
by the OEM at no charge, except that, when the
documentation is requested in physical printed form, a
charge may be included for the reasonable actual costs
of preparing and sending the copy.
(C) For software tools.--With respect to a software
tool, that the software tool is made available by the
OEM at no charge and without requiring authorization or
internet access for use or operation of the software
tool, or imposing impediments to access or use (such as
not making the software tool available for download,
and, upon request, delivery via physical storage
media), in the course of using the tool to diagnose,
maintain, or repair and enable full functionality of an
electronics-enabled implement of agriculture, or in a
manner that impairs the efficient and cost-effective
performance of any such diagnosis, maintenance, or
repair.
(8) Firmware.--The term ``firmware'' means a software
program or set of instructions programmed on an electronics-
enabled implement of agriculture, or on a part for such
equipment, to allow the equipment or part to communicate within
a networked product or system or with other computer hardware,
including any relevant patch or fix made by the OEM of such
equipment or part.
(9) Independent repair provider.--The term ``independent
repair provider'' means, with respect to an electronics-enabled
implement of agriculture, a person who--
(A) is not an authorized repair provider of the
electronics-enabled implement of agriculture; and
(B) provides diagnosis, maintenance, or repair
services for the electronics-enabled implement of
agriculture.
(10) Original equipment manufacturer; oem.--The term
``original equipment manufacturer'' or ``OEM'' means any person
that manufactures an electronics-enabled implement of
agriculture and sells, leases, or otherwise supplies such
implement to any other person.
(11) Owner.--The term ``owner'' means any person that owns
or leases an electronics-enabled implement of agriculture other
than the OEM of such electronics-enabled implement of
agriculture.
(12) Part.--The term ``part'' means any component or
subcomponent of an electronics-enabled implement of agriculture
that is sold, supplied, or otherwise made available by an OEM
for purposes of maintaining, repairing, or diagnosing such
electronics-enabled implement of agriculture.
(13) Software bill of material.--The term ``software bill
of material'' means a formal record containing the details and
supply chain relationships of various components used in
building software.
(14) Tool.--The term ``tool'' means any software program
(including any software update), hardware implement, or other
apparatus used for repair-related diagnostic testing,
maintenance, or repair of an electronics-enabled implement of
agriculture, including software or any other mechanism that
provisions the implement, programs the implement, pairs a new
part, calibrates functionality, or performs any other function
required to bring the implement back to fully functional
condition.
(15) Trade secret.--The term ``trade secret'' has the
meaning given such term in section 1839 of title 18, United
States Code.
SEC. 3. REQUIREMENTS FOR OEMS.
(a) Fair and Reasonable Terms.--An original equipment manufacturer
shall make available, on fair and reasonable terms, to any owner or
independent repair provider any documentation, part, software, or tool
required to diagnose, maintain, or repair digital electronic equipment
for any electronics-enabled implement of agriculture.
(b) Disabling Security Functions.--An OEM shall make available to
any owner or independent repair provider, on fair and reasonable terms,
any documentation, part, software, or tool required to disable or
enable an electronic security lock or other security-related function
of an electronics-enabled implement of agriculture.
(c) Interaction With Copyright Laws.--
(1) In general.--Notwithstanding section 1201(a) of title
17, United States Code, a person may circumvent a technological
measure that effectively controls access to a work protected
under such title in connection with an activity protected under
this Act if the purpose of such circumvention is to--
(A) diagnose, maintain, upgrade, reprogram, or
repair an electronics-enabled implement of agriculture;
(B) enable interoperability with any computer
program or device used in an electronics-enabled
implement of agriculture;
(C) conduct security research relating to an
electronics-enabled implement of agriculture; or
(D) enable non-infringing modification of any
computer program or device used in an electronics-
enabled implement of agriculture.
(2) Access to tools.--Notwithstanding section 1201(a) of
title 17, United States Code, a person may 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 such
title for the purposes described in paragraph (1).
(d) Ensuring Common Availability.--
(1) In general.--Notwithstanding any provision of title 17
or 35, United States Code, at such time as an OEM stops
offering any documentation, part, software, or tool to any
authorized repair provider, any copyright or patent held by the
OEM with respect to such documentation, part, software, or tool
shall be placed in the public domain.
(2) Replacement.--An OEM shall ensure that any part
required by the OEM's electronics-enabled implement of
agriculture can be replaced without causing damage to the
equipment using--
(A) a commonly available tool; or
(B) a tool that is not commonly available that is
made available to owners or independent repair
providers by the OEM on fair and reasonable terms.
SEC. 4. ENFORCEMENT.
(a) Unfair or Deceptive Acts or Practices.--A violation of section
3 or a regulation promulgated under this Act shall be treated as a
violation of a rule defining an unfair or deceptive act or practice
under section 18(a)(1)(B) of the Federal Trade Commission Act (15
U.S.C. 57a(a)(1)(B)).
(b) Powers of the Commission.--
(1) In general.--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.
(2) Privileges and immunities.--Any person who violates
section 3 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 (15
U.S.C. 41 et seq.).
(3) Authority preserved.--Nothing in this Act shall be
construed to limit the authority of the Commission under any
other provision of law.
SEC. 5. RULEMAKING.
The Commission shall promulgate in accordance with section 553 of
title 5, United States Code, such rules as may be necessary to carry
out this Act.
SEC. 6. LIMITATIONS.
Nothing in this Act shall be construed--
(1) to require an OEM to divulge trade secrets to an owner
or an independent service provider, except as necessary to
provide access to any necessary repair material or process on
fair and reasonable terms;
(2) to alter the terms of an agreement between an OEM and
an authorized repair provider, except with respect to any
provision of such an agreement that would limit the obligations
of an OEM under this Act;
(3) to require an authorized repair provider to make any
documentation, part, or tool relating to an electronics-enabled
implement of agriculture available on fair and reasonable terms
unless the authorized repair provider is the OEM of such
implement;
(4) to require an OEM to provide any part or equipment
solely used in the development of their products; or
(5) to allow--
(A) any modification that permanently deactivates a
safety notification system when an electronics-enabled
implement of agriculture is being repaired;
(B) access to any function of a tool that enables
the owner or independent repair provider to change the
settings of an electronics-enabled implement of
agriculture so as to bring the equipment permanently
out of compliance with any applicable safety or
emissions laws;
(C) the evasion of emissions laws or copyright
laws; or
(D) any other illegal modification activities.
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