HSB 751 (LSB 6914YC (3) 91)

HOUSE FILE _____ 

BY  (PROPOSED COMMITTEE ON AGRICULTURE BILL BY CHAIRPERSON WULF)

A BILL FOR

An Act providing for services relating to agricultural equipment.
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.  a.  “Agricultural equipment” means equipment that is primarily designed for use in a farming operation.
   b.  “Agricultural equipment” includes any of the following:
   (1)  A tractor, trailer, combine, sprayer, tillage implement, baler, and other equipment used to plant, cultivate, or harvest agricultural products.
   (2)  An attachment to and repair part for equipment described in subparagraph (1).
   (3)  “Agricultural equipment” does not include any of the following: 
   (a)  A self-propelled vehicle designed primarily for the transportation of individuals or property on a street or highway.
   (b)  A powersports vehicle, including any of the following:
   (i)  A vehicle for off-road operation.
   (ii)  A personal watercraft that is a motorboat that is designed to be operated by a person sitting, standing, or kneeling on the vessel, rather than the conventional manner of sitting or standing inside the vessel, and that is designed primarily for use off of the public highways, and that uses either an inboard motor powering a water jet pump or an outboard motor-driven propeller.
   (iii)  A snowmobile. 
   (c)  Any aircraft used in an agricultural aircraft operation, as defined in 14 C.F.R. §137.3.
   (d)  Any equipment designed and used primarily for irrigation purposes. 
   2.  a.  “Authorized repair provider” means a person that is unaffiliated with a manufacturer other than through an arrangement with the manufacturer, whether for a definite or an indefinite period, in which the manufacturer, for the purpose of offering to provide services to an equipment owner regarding the owner’s equipment or a part, grants the person any of the following: 
   (1)  A license to use a trade name, service mark, or other proprietary identifier.
   (2)  Authorization under any other arrangement to act on behalf of the manufacturer. 
   b.  “Authorized repair provider” includes a manufacturer that offers to provide services to an owner of the manufacturer’s agricultural equipment regarding the owner’s agricultural equipment or a part if the manufacturer does not have an arrangement with an unaffiliated person, as described in paragraph “a”. 
   3.  “Data” means, with the consent of an owner, transmitted or compiled information arising from the operation of an owner’s agricultural equipment or its parts.
   4.  “Documentation” means a manual; diagram, including a schematic diagram; reporting output; service code description; security code or password; or similar type of guidance or information, whether in an electronic or tangible format, that a manufacturer provides to an authorized repair provider to assist the authorized repair provider with services performed on the manufacturer’s agricultural equipment or a part. 
   5.  a.  “Embedded software for agricultural equipment” means any programmable instructions provided on firmware delivered with or loaded to the agricultural equipment, with respect to agricultural equipment operation. 
   b.  “Embedded software for agricultural equipment” includes all relevant patches and fixes that the manufacturer makes, including but not limited to items described as a basic internal operating system, internal operating system, machine code, assembly code, root code, and microcode. 
   6.  “Equipment dealer” means any person primarily engaged in the retail sale of agricultural equipment. 
   7.  “Fair and reasonable terms and costs” means the following:
   a.  (1)  With respect to obtaining documentation, parts, embedded software, firmware, or tools from a manufacturer to provide services, terms that are equivalent to the most favorable terms that the manufacturer offers to an authorized repair provider and costs that are no greater than the manufacturer’s suggested retail price.
   (2)  Except as provided in paragraph “d”, costs considered under subparagraph (1) are calculated using net costs incurred, accounting for any discounts, rebates, or incentives offered.
   b.  With respect to documentation, the manufacturer provides the documentation, including any relevant updates to the documentation, at no charge, except that the manufacturer may charge a fee for a printed copy of the documentation if the amount of the fee covers only the manufacturer’s actual cost to prepare and send the printed copy of the documentation.
   c.  With respect to tools that are software programs, the manufacturer provides the tools that are software programs subject to all of the following:
   (1)  At no charge and without requiring authorization or internet access or otherwise imposing impediments to access or use.
   (2)  In the course of effectuating the diagnosis, maintenance, or repair and enabling the full functionality of the agricultural equipment or part.
   (3)  In a manner that does not impair the efficient and cost-effective performance of the agricultural equipment or part.
   d.  Notwithstanding paragraph “a”, subparagraph (1), parts shall be sold to an owner or an independent repair provider under equitable terms for access to or receipt of any part pertaining to agricultural equipment and in a manner that is any of the following:
   (1)  Is fair to both parties in light of any agreed-upon conditions, the promised quality, and the timeliness of the delivery.
   (2)  Does not discourage or disincentivize repairs to be made by an owner or an independent repair provider.
   e.  Terms are fair if the terms do not impose on an owner or independent repair provider any of the following:
   (1)  Substantial obligation to use, or any restriction on the use of, a part, embedded software, embedded software for agricultural equipment, firmware, or tool, including a condition that the owner or independent repair provider become an authorized repair provider of the manufacturer.
   (2)  A requirement that a part, embedded software, embedded software for agricultural equipment, firmware, or tool be registered or paired with or approved by the manufacturer or an authorized repair provider before the part, embedded software, embedded software for agricultural equipment, firmware, or tool is operational.
   8.  “Firmware” means a software program or set of instructions programmed on equipment or a part to allow the equipment or part to function or communicate with itself or with other computer hardware.
   9.  a.  “Independent repair provider”, except as otherwise provided in paragraph “b”, means a person in the state that is all of the following:
   (1)  Neither a manufacturer’s authorized repair provider nor affiliated with a manufacturer’s authorized repair provider. 
   (2)  Engaged in offering or providing services.
   b.  “Independent repair provider” includes all of the following:
   (1)  An authorized repair provider if the authorized repair provider is offering or providing services for a manufacturer other than a manufacturer with which the authorized repair provider has an arrangement described in subsection 2.
   (2)  A manufacturer with respect to offering or providing services for another manufacturer’s agricultural equipment or part.
   10.  “Original equipment manufacturer” or “manufacturer” means a person doing business in the state and engaged in the business of selling, leasing, or otherwise supplying agricultural equipment or parts manufactured by or on behalf of itself to any individual, business, or other entity.
   11.  “Owner” means a person that owns agricultural equipment, or an agent of the owner.
   12.  “Part” means a new or used replacement part for agricultural equipment that a manufacturer offers for sale or otherwise makes available for the purpose of providing services.
   13.  “Services” means diagnostic, maintenance, or repair services performed on agricultural equipment.
   14.  “Tools” means any software program, hardware implement, or other apparatus used for diagnosis, maintenance, or repair of agricultural equipment or parts, including software or another mechanism that provides, programs, or pairs a new part, calibrates functionality, or performs any other function required to return the agricultural equipment or part to a fully functional condition.
   15.  a.  “Trade secret” means the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, improvement, or confidential business or financial information; a listing of names, addresses, or telephone numbers; or other information relating to any business or profession that is secret and of value. 
   b.  To be a trade secret, the owner thereof must have taken measures to prevent the secret from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.
    Sec. 2.  NEW SECTION.  322E.2  Agricultural equipment —— obligations regarding services —— exemption.
   1.  Except as provided in subsection 2, all of the following apply:
   a.  For the purpose of providing services for agricultural equipment in the state, an original equipment manufacturer shall, with fair and reasonable terms and costs, make available to an independent repair provider or owner of the manufacturer’s equipment any documentation, parts, embedded software, embedded software for agricultural equipment, firmware, tools, or, with owner authorization, data that are intended for use with the equipment or any part, including updates to documentation, parts, embedded software, embedded software for agricultural equipment, firmware, tools, or, with owner authorization, data.
   b.  With respect to agricultural equipment that contains an electronic security lock or other security-related function, a manufacturer shall, with fair and reasonable terms and costs, make available to independent repair providers and owners any documentation, parts, embedded software, embedded software for agricultural equipment, firmware, tools, or, with owner authorization, data needed to reset the lock or function when disabled in the course of providing services. The manufacturer may make the documentation, parts, embedded software, embedded software for agricultural equipment, firmware, tools, or, with owner authorization, data available to independent repair providers and owners through appropriate secure release systems.
   2.  Subsection 1 does not apply to any of the following:
   a.  A part that is no longer available to the original equipment manufacturer.
   b.  Conduct that would require the manufacturer to divulge a trade secret, except that a manufacturer shall not refuse to make available to an independent repair provider or owner any documentation, part, embedded software, embedded software for agricultural equipment, firmware, tool, or, with owner authorization, data necessary to provide services on grounds that the documentation, part, embedded software, embedded software for agricultural equipment, firmware, tool, or, with owner authorization, data itself is a trade secret.
   3.  Neither an original equipment manufacturer nor an agricultural equipment dealer is liable for faulty or otherwise improper repairs provided by an independent repair provider or owner, including faulty or otherwise improper repairs that cause any of the following:
   a.  Damage to agricultural equipment that occurs during such repairs.
   b.  Any indirect, incidental, special, or consequential damages.
   c.  An inability to use, or a reduced functionality of, a piece of agricultural equipment resulting from the faulty or otherwise improper repair.
   4.  A manufacturer that provides data to an independent repair provider in compliance with this chapter is neither responsible nor liable to the owner, the independent repair provider, or another party for any action that the independent repair provider or another party takes while using or relying on the data.
    Sec. 3.  NEW SECTION.  322E.3  Agricultural equipment —— limitations.
   1.  Subject to subsection 2, nothing in this chapter does any of the following:
   a.  Alters the terms of any contract or other arrangement in force between an original equipment manufacturer and an authorized repair provider, including the performance or provision of warranty or recall repair work and any exclusivity or noncompete clause in a contract.
   b.  Authorizes an independent repair provider or owner to do any of the following:
   (1)  Make any modification to agricultural equipment that deactivates a safety notification system, except as necessary to provide services.
   (2)  Access any function of a tool that enables the independent repair provider or owner to change the settings for a piece of agricultural equipment in a manner that brings the equipment out of compliance with any applicable federal, state, or local safety or emissions law, except as necessary to provide services.
   (3)  Evade emissions, copyright, trademark, or patent laws.
   (4)  Engage in any other illegal equipment modification activity.
   c.  Requires a manufacturer to provide an independent repair provider or owner access to information, other than documentation, that the manufacturer provides to an authorized repair provider pursuant to a contract or other arrangement with the authorized repair provider except as necessary to comply with section 322E.2.
   d.  Exempts a manufacturer from a product liability claim that is otherwise authorized in law.
   2.  a.  With respect to a contract or other arrangement, or renewal of a contract or existing arrangement, that an original equipment manufacturer enters into after the effective date of this Act, any contract term, provision, agreement, or language in the contract or arrangement that waives, avoids, restricts, or limits the manufacturer’s obligations under this chapter is void and unenforceable.
   b.  If an agricultural equipment manufacturer enters into, or is covered under, a nationwide memorandum of understanding regarding a right to repair agricultural equipment, the memorandum of understanding governs an owner’s right to provide services, or to engage the services of an independent repair provider, for that manufacturer’s brand of agricultural equipment, except that if compliance with the memorandum of understanding would deny the owner any rights afforded to the owner in this chapter, including any rights to documentation, data, tools, or embedded software for agricultural equipment necessary for the diagnosis, maintenance, or repair of the owner’s agricultural equipment, the owner is entitled to the documentation, data, tools, or embedded software for agricultural equipment in accordance with this chapter. An agricultural equipment manufacturer that enters into a memorandum of understanding is still obligated to meet the requirements established in this chapter.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill regulates practices by an original farm equipment manufacturer (manufacturer). The manufacturer must make available to an independent repair provider or owner of the manufacturer’s equipment any documentation, parts, embedded software, embedded software for agricultural equipment, firmware, tools, or, with owner authorization, data that are intended for use with the equipment or any part, including updates to documentation, parts, embedded software, embedded software for agricultural equipment, firmware, tools, or, with owner authorization, data. The original manufacturer must make those items available at fair and reasonable terms and costs. Generally, this includes terms that are equivalent to the most favorable terms that the manufacturer offers for the same item to an authorized repair provider and costs that are no greater than the manufacturer’s suggested retail price. The requirements in the bill are subject to a number of limitations. The bill does not require a manufacturer to evade emissions, copyright, trademark, or patent laws. The bill does not exempt a manufacturer from a product liability claim. Any agreement entered into with a manufacturer that waives, avoids, restricts, or limits the manufacturer’s obligations under the bill’s requirements is void and unenforceable.