NAEDA’s Eric Wareham, senior vice president of government affairs, and Kipp McGuire, director of government affairs, joined Farm Equipment for an in-depth webinar on right to repair legislation in 2023 and the current federal and state legislative priorities for NAEDA.

Check out the webinar replay for a recap of 2019-2022 right to repair legislation and the complete discussion of federal and state proprieties for NAEDA.

The State of Right to Repair in 2023

There are 71 bills in play across 31 states. NAEDA keeps tabs on all bills, even those unrelated to agriculture. “It sounds like it would be outside of our scope, but we’re watching all of them to see what happens,” says Wareham.

NAEDA keeps tabs on all federal and state discussions around right to repair, as farm equipment is frequently mentioned at hearings unrelated to agriculture-specific legislation.

Right to Repair at the Federal Level

At the federal level, Wareham and McGuire discussed bill HR 906, which is specific to motor vehicles. This bipartisan legislation was covered at a July 18 hearing that McGuire attended. Agriculture was pulled into the discussion despite the informational hearing — “Is There a Right to Repair?”— focusing on motor vehicles and consumer electronics. “I think that it’s pretty safe to say that if right to repair is being talked about, the ag industry is going to be brought up,” says McGuire.

The Environmental Protection Agency’s (EPA) Aug. 4 response to a Farmer’s Union letter was also a topic of discussion. Wareham has frequently cited 42 USC section 7543(e) of the Clean Air Act, which specifically prohibits states from creating laws relating to access to non-road emissions controls. The Farmer’s Union tiptoed around this section in its letter to the EPA administrator. It failed to address the Clean Air Act’s requirements on manufacturers’ obligations to regulate access to digital locks controlling emissions. “I think it was in large part a political ploy for proponents of right to repair to bandy that letter around in future legislative hearings,” says Wareham.

After the webinar update, the U.S. House of Representatives introduced HR5604, or the Agriculture Right to Repair Act, on September 20.

According to the bill sponsors, the Act defines what types of information OEMs are required to provide to make repair accessible. If the OEM does not have the digital or physical tools available, they are required to provide sufficient information to create the tools. Additionally, the bill gives the Federal Trade Commission the ability to enforce these requirements and make  rules to assist in the implementation of these requirements.

Eric Wareham, senior vice president of government relations for the North American Equipment Dealers Association, says the bill is very different from the state legislation we’ve seen and even previous federal legislation that’s been introduced. 

He says this new bill introduces some new concepts and specifically focuses on copyright and intellectual property. 

“And when you look at the bill as a whole, my take on it, and this is pretty blunt, but it's a blatant appropriation of intellectual property masquerading as a right to repair bill.”

He adds that there are several reasons this bill is different from a lot of the legislation we’ve seen on the state level. Unlike the state bills, HR5604 doesn’t address selling parts at dealer net cost. Instead, it focuses on making tools available to farmers.

“What it does address is it does have a fair and reasonable —actually they say fair and reasonable, but in the bill it's defined as no cost to farmers, so that's an interesting way to describe fair and reasonable — for tools. And the interesting way they define tools is basically software and firmware and also diagnostic tools. So that's a separate issue, somewhat similar to the state legislation. Where it also has common ground is that when it does talk about making available software, they use the same vernacular as disable or enable an electronic security lock or other security-related function of farm equipment.

So that's a mandate they place on the OEM to make that available. So that is consistent language that we've seen in all state legislation. There's big problems with that because we've always talked about, what does that mean? It's very nebulous language, not a discernible standard and sounds pretty broad. And in this legislation at the federal level, because of probably the legislative council and the bill drafters’ requirements that they dial in to be kind of more specific at the federal level, they spell that out. And instead of placing sideboards on that access to security locks and security-related functions, in Section 3C of the bill, what they do is completely remove all copyright protections to allow for circumvention of technology protection measures with the express purpose of reprogramming and modification of farm equipment. So they're really spelling out their intentions here. That's the interesting part about the legislation.”

Wareham says currently under federal law, the Librarian of Congress has already said that specifically for farm equipment, you can circumvent TPMs for the purpose of repair, maintenance and diagnosis. While proponents of right to repair have tried to push for expanding that access to allow for modification, Wareham says the Librarian of Congress has responded by specifically saying that modification does not fall within the fair use rule.

He adds that this bill, in his words, “specifically attempts to make the hacking of farm equipment legal. And that is a drastic change from the current state of law today.” 

Right to Repair at the State Level 

Wareham and McGuire covered battleground states for NAEDA this legislative cycle, including Colorado, Vermont and Michigan.

Colorado’s HB 23-1011 is the first ag-specific right to repair bill to pass this year, despite 50 dealers sharing their testimony in opposition. Due to significant revisions to the bill, however, it is not a disaster for dealers. Major revisions included:

• Removal of parts at cost language—OEM instead must make parts available at a fair and reasonable cost
• Memorandum of understanding (MOU) and federal statute provision
• Removal of the authorized dealer from enforcement provisions

In Vermont, H. 81 has passed the House and will likely pass the Senate next year. Vermont held more than 30 hours of council hearings on this legislation. NAEDA points to Vermont’s bill as a better example than Colorado for other states to follow. “If you’re intent on doing this, let’s look at Vermont as a better possibility, a better starting point without all of the parts at cost and the enforcement, private cause of action and the unfettered access to intellectual property and copyrighted material,” says Wareham.

Right to repair has been contentious in Michigan. HB 4673did not before the summer recess. Legislators assumed right to repair to be a farmer vs. dealer issue, but the Operators Union proved that there is more complexity to this issue. The Operators Union wants its members to refrain from working on modified equipment, as it may present a safety risk. There are many factors that Michigan’s legislators did not consider, and further discussion with invested parties is needed.  

The Michigan House Agriculture Committee passed the Agricultural Equipment Repair Act on Oct. 25, 2023.  

What Is Driving Right to Repair in 2023? 

Right to repair has become a politicized issue as we head into an election year. Wareham notes Republicans, who still have a lingering sense of limited government, tend to trust the private sector to work out its issues. Democrats, on the other hand, philosophically believe that more government is the answer, he says.

“Over the last few decades, Democrats have steadily lost ground in rural America, and they don't really have a lot of issues or a platform that even speaks to rural America. So we do know that the Democratic National Committee adopted right to repair as part of its platform, and they are pushing it very strongly,” says Wareham.

NAEDA is most concerned about states with a Democrat trifecta. A trifecta occurs when the executive branch and both chambers of the legislative branch are all led by the same party. In a trifecta, priority political issues can move through the system without thorough checks and balances.

Democrat trifecta states will be more likely to push through right to repair bills. In contrast, Republican trifectas are more likely to trust in the private sector MOUs that have thus far negated the need for formal legislation. 

More education is needed to ensure legislators understand the dealer perspective on right to repair. NAEDA has been active in conversations with Congress and has invited dealers to participate through D.C. fly-ins that serve as the critical federal advocacy events. 

Keep an eye on Farm Equipment’s ongoing coverage of right to repair legislation as we head into election year 2024.