[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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