HF 2529 (LSB 6873HV (1) 91)

HOUSE FILE 2529

BY  COMMITTEE ON AGRICULTURE

(SUCCESSOR TO HSB 684)

A BILL FOR

An Act providing for the repair of a diesel exhaust fluid system that is part of farm equipment, and providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  322E.1  Definitions.
   As used in this chapter, unless the context otherwise requires:
   1.  “Authorized repair provider” means a person other than an original farm equipment manufacturer with whom the manufacturer has entered into an oral or written agreement for a definite or indefinite period, if the manufacturer grants to the person a license to use a trade name, service mark, or related characteristic for the purposes of offering repair services under the name of the manufacturer.
   2.  “Diesel exhaust fluid” means the same as defined in 40 C.F.R. §1036.801.
   3.  “Diesel exhaust fluid system” or “system” means a system that utilizes diesel exhaust fluid as part of a selective catalytic reduction process that is operated by one or more digital electronic components.
   4.  “Digital electronic component” means an item containing an integrated circuit, if manufactured as part of a diesel exhaust fluid system that is integrated into farm equipment.
   5.  a.  “Embedded software” means programmable instructions provided on firmware delivered with digital electronic components for the purposes of operating a diesel exhaust fluid system integrated into farm equipment, including all relevant patches and fixes made by the original equipment manufacturer.
   b.  “Embedded software” includes but is not limited to an internal operating system, a machine code, an assembly code, a root code, or a microcode.
   6.  “Farm equipment” means a type of diesel-powered motorized equipment that is designed or adapted and used exclusively for the production of agricultural commodities, including a crop as defined in section 202.1 or livestock as defined in section 717.1.
   7.  “Firmware” means a software program or set of instructions programmed on a hardware device to allow the device to communicate with other computer hardware.
   8.  “Interest holder” means a person who holds a legal interest in farm equipment that includes a diesel exhaust fluid system, if the person is the owner, lessee, or licensee of a digital electronic component that operates a diesel exhaust fluid system integrated into the farm equipment.
   9.  “Original farm equipment manufacturer” or “manufacturer” means a person who, in the ordinary course of business, is engaged in the business of doing all of the following:
   a.  Manufacturing and assembling parts of new farm equipment for sale or lease, if the new farm equipment includes a diesel exhaust fluid system.
   b.  Providing items and documentation for servicing, maintaining, or repairing a diesel exhaust fluid system that is integrated into the new farm equipment, including providing replacement parts.
   10.  “Replacement part” means a part of a digital electronic component that is an element of a diesel exhaust fluid system integrated into farm equipment, if the part is manufactured to perform the same or a similar function as the part being replaced, and the part restores digital electronic components to an operational condition or improves the efficiency or capability of the digital electronic components.
   11.  “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; secret or confidentially held scientific, technical, merchandising, production, financial, business, or management information; or any other trade secret as defined in 18 U.S.C. §1839.
    Sec. 2.  NEW SECTION.  322E.2  Rulemaking authority.
   The attorney general shall adopt rules pursuant to chapter 17A to administer this chapter.
    Sec. 3.  NEW SECTION.  322E.3  Enforcement authority.
   1.  The attorney general shall enforce this chapter, including rules adopted under this chapter.
   2.  A district court may prevent and restrain a violation of this chapter through the issuance of an injunction. The attorney general or a county attorney shall institute suits on behalf of the state to prevent and restrain violations of this chapter.
    Sec. 4.  NEW SECTION.  322E.4  Application.
   1.  This chapter shall not be construed to require an original equipment manufacturer to divulge a trade secret.
   2.  a.  Except as provided in paragraph “b”, this chapter shall not abrogate, interfere with, contradict, or alter the terms of any agreement executed by an interest holder and another party relating to farm equipment, including performance, a warranty, or recall repair work.
   b.  A provision in an agreement entered into by an interest holder and another party that waives, limits, or disclaims the rights set forth in this chapter is void as contrary to public policy.
   3.  This chapter shall not require an original farm equipment manufacturer or an authorized repair provider to provide an interest holder access to nondiagnostic or nonrepair information provided by the manufacturer to the authorized repair provider pursuant to the terms of an agreement.
    Sec. 5.  NEW SECTION.  322E.5  Terms and conditions of use —— diagnostic and repair information.
   1.  a.  An original farm equipment manufacturer shall make diagnostic and repair information regarding the operation of a diesel exhaust fluid system, including technical updates and embedded software updates and corrections, available to any interest holder for no charge or in the same manner as the manufacturer makes such diagnostic and repair information available to the manufacturer’s authorized repair providers doing business in the same region as the interest holder when using the farm equipment.
   b.  The original farm equipment manufacturer is not required to make the diagnostic and repair information available in a print format.
   2.  An original farm equipment manufacturer shall not require an interest holder to purchase diagnostic and repair information regarding the operation of a diesel exhaust fluid system if the manufacturer sells the diagnostic and repair information to the manufacturer’s authorized repair providers on terms that are more favorable than the terms offered to the interest holder.
    Sec. 6.  NEW SECTION.  322E.6  Terms and conditions of use —— replacement parts and diagnostic and repair tools.
   1.  a.  An original farm equipment manufacturer shall make available for purchase by an interest holder a replacement part necessary to operate a diesel exhaust fluid system to the same extent that the manufacturer makes available the same digital electronic component to an authorized repair provider doing business in the same region as the interest holder when using the farm equipment.
   b.  The terms and conditions of the purchase described in paragraph “a” shall be fair and reasonable according to criteria provided in rules adopted by the attorney general. The criteria may be based on the terms and conditions of agreements entered into by the original farm equipment manufacturer and authorized repair providers doing business in the same region as the interest holder when using the farm equipment.
   2.  a.  An original farm equipment manufacturer shall make available for purchase by an interest holder a diagnostic repair tool necessary to operate a diesel exhaust fluid system to the same extent that the manufacturer makes available the diagnostic repair tool to an authorized repair provider doing business in the same region as the interest holder when using the farm equipment. The diagnostic repair tool shall incorporate the same diagnostic, repair, and remote communications capabilities that the manufacturer makes available to the repair or engineering personnel employed by the manufacturer or to any authorized repair provider.
   b.  The terms and conditions of the purchase described in paragraph “a” shall be fair and reasonable according to criteria provided in rules adopted by the attorney general. The criteria may be based on the terms and conditions of agreements entered into by the original farm equipment manufacturer and authorized repair providers doing business in the same region as the interest holder when using the farm equipment.
   3.  The original farm equipment manufacturer shall not condition the availability of a replacement part described in subsection 1 or a diagnostic repair tool described in subsection 2 on a requirement that a replacement part or diagnostic repair tool be registered, paired with, or approved by the manufacturer or an authorized repair provider before the replacement part or diagnostic repair tool is used. The manufacturer shall not impose any additional cost or burden that is not reasonably necessary or that may unreasonably impede the interest holder.
    Sec. 7.  NEW SECTION.  322E.7  Unfair or deceptive trade practice.
   An original farm equipment manufacturer who violates this chapter commits an unfair or deceptive trade practice as provided in section 714.16, subsection 2, paragraph “a”.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill restricts certain practices by an original farm equipment manufacturer (manufacturer), if the manufacturer sells diesel-powered farm equipment integrated with a diesel exhaust fluid (DEF) system operated by digital electronic components designed to reduce certain emissions (nitrogen oxides) under regulations promulgated by the United States environmental protection agency (see 40 C.F.R. §1065.735). The bill provides for circumstances in which farm equipment is subject to repair due to a fault in the DEF system. The bill provides that a manufacturer must make certain items related to the DEF system available to a person holding a legal interest in the farm equipment (interest holder) in the same manner and to the same extent as the manufacturer makes such items available to the manufacturer’s authorized repair providers doing business in the same region as the interest holder. The items include diagnostic and repair information, including technical updates, replacement parts, and diagnostic repair tools. A manufacturer is not required to provide a replacement part that is no longer available to the manufacturer. The bill does not require a manufacturer to divulge a trade secret and the manufacturer cannot abrogate warranty provisions. A provision in an agreement that is entered into by an interest holder that waives a right provided in the bill is void. The attorney general is responsible for enforcing the provisions of the bill and is required to adopt rules necessary to implement the bill’s provisions. A violation of the bill by a manufacturer is considered an unfair or deceptive trade practice. The attorney general or county attorney may bring a civil action against the manufacturer, including by seeking injunctive relief or by asking a court to impose a civil penalty not to exceed $40,000 per violation.