HOUSE OF REPRESENTATIVES

153rd GENERAL ASSEMBLY

HOUSE BILL NO. 176

AN ACT TO AMEND TITLE 3 OF THE DELAWARE CODE RELATING TO THE DELAWARE AGRICULTURAL EQUIPMENT RIGHT TO REPAIR ACT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Part II, Title 3 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

Chapter 18. Delaware Agricultural Equipment Right to Repair Act.

§ 1801. Purpose.

The purpose of this chapter is to promote equipment owner choice and competition for repair and maintenance services by requiring manufacturers of agricultural equipment to make available to owners and independent repair providers, on fair and reasonable terms, the same documentation, parts, and tools used to diagnose, maintain, and repair such equipment created by the manufacturer for the purposes of repair.

§ 1802. Short title .  

This chapter may be cited as the Delaware Agricultural Right to Repair Act.

§ 1803. Requirements.  

(a) For agricultural equipment and parts for such equipment that are sold or used in Delaware, an original equipment manufacturer shall make available to any independent repair provider or owner of agricultural equipment manufactured by on behalf of, or sold by such original equipment manufacturer, on fair and reasonable terms, any documentation, parts, and tools, required for the diagnosis, maintenance, or repair of such agricultural equipment and parts for such equipment, inclusive of any updates. Such documentation, parts and tools shall be made available either directly by such original equipment manufacturer or via an authorized repair provider or distributor. 

(b) An original equipment manufacturer shall not use parts pairing or any other mechanism to:

(1) prevent the installation or functioning of any otherwise-functional part, including a non-manufacturer approved replacement part or component;

(2) inhibit or reduce the functioning of any part or board-level component, such that replacement by an independent repair provider or the device owner would cause the device to operate with reduced functionality or performance;

(3) create false, misleading, deceptive, or non-dismissible alerts or warnings about parts;

(4) charge additional fees or increased prices for future repairs; or

(v) limit who can purchase documentation, parts, and tools or perform repair services.

(c) For equipment that requires deactivating an electronic lock for purposes of repair, the original equipment manufacturer shall make available to any owner, or independent repair provider, with the express permission of the owner, on fair and reasonable terms, any special documentation, tools, and parts needed to access and reset the lock or function when disabled in the course of diagnosis, maintenance, or repair of such equipment.  Such documentation, tools, and parts may be made available through an appropriate secure release system.

§ 1804. Definitions .

As used in this chapter:

(1) “Agricultural equipment” or “equipment” means products used in agricultural, horticultural, viticultural, dairy products, livestock and the products thereof, the products of poultry and bee raising, products of forestry, products used in property maintenance and any and all products raised or produced on farms and processed or manufactured products thereof, transported or intended to be transported in interstate or foreign commerce.  Agricultural equipment does not include a motor vehicle that is designed to transport individuals or property on a street or highway and is certified by a motor vehicle manufacturer under all requirements for the distribution and sale of motor vehicles in the United States; industrial, construction, compact construction, mining or road-building equipment;

(2) “Authorized Repair Provider” means an individual or business who has an arrangement with the original equipment manufacturer under which the original equipment manufacturer grants to the individual or business a license to use a trade name, service mark, or other proprietary identifiers for the purposes of offering the services of diagnosis, maintenance, or repair of agricultural equipment under the name of the original equipment manufacturer, or other arrangement with the original equipment manufacturer to offer such services on behalf of, or under contract to, the original equipment manufacturer. An original equipment manufacturer who offers the services of diagnosis, maintenance, or repair of its own agricultural equipment shall be considered an authorized repair provider with respect to such equipment.

(3)“Documentation” means any manual, maintenance procedures, functional and wiring diagrams, reporting output, service code description, board view file or complete PCB layout, PCB schematic, security code, password, training material, troubleshooting information, full list of required tools, full parts list, and other guidance or information used in effecting the services of diagnosis, maintenance, or repair of agricultural equipment.

(4) “Embedded software” means any programmable instructions provided on firmware (a software program or set of instructions programmed on agricultural equipment, or on a part of such agricultural equipment, to allow the agricultural equipment or part to communicate within itself or with other computer hardware) delivered with or loaded to the agricultural equipment, with respect to agricultural equipment operation, including all relevant patches and fixes made by the manufacturer, including items described as "basic internal operating system”, "internal operating system", "machine code", "assembly code", "root code", and "microcode".

(5) “Fair and reasonable terms” means all of the following: 

a. with respect to parts, made available by the original equipment manufacturer, either directly or through an authorized repair provider, in a manner that:

1. is not conditioned on or imposing a substantial obligation or restriction that is not reasonably necessary for enabling the owner or independent repair provider to engage in the diagnosis, maintenance, or repair of agricultural equipment made by or on behalf of the original equipment manufacturer;

2. does not require a minimum or maximum quantity of parts that owners and independent repair providers can purchase; and

3. does not condition access to parts on any additional contract other than a purchase order.

b. with respect to documentation, made available by the original equipment manufacturer without requiring any contract agreement or account creation and 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.

1. with respect to tools, made available by the original equipment manufacturer at no charge, except that, when a tool is requested in physical form, a charge may be included for the reasonable, actual costs of preparing and sending such tool;

2. without requiring authorization or internet access for the use or operation of such tools, or imposing impediments to access or use of the tools to diagnose, maintain, or repair and enable full functionality of agricultural equipment; and 

3. in a manner that does not impair the efficient and cost-effective performance of any such diagnosis, maintenance, or repair.

(6) “Independent repair provider” means an individual or business operating in this State that does not have an arrangement described in paragraph (2) of this section with an original equipment manufacturer, and who is engaged in the services of diagnosis, maintenance, or repair of agricultural equipment.

(7) “Original Equipment Manufacturer (OEM)” or “manufacturer” means a business engaged in the business of selling, leasing, or otherwise supplying new agricultural equipment manufactured by or on behalf of itself, to any individual or business.

(8) “Owner” means an individual or business who owns or leases agricultural equipment purchased or used in this State.

(9) “Part” means any replacement part, either new or used, made available or used by an original equipment manufacturer or its authorized repair providers for purposes of effecting the services of maintenance or repair of agricultural equipment manufactured by or on behalf of, sold or otherwise supplied by the original equipment manufacturer. 

(10) “Parts Pairing” refers to the practice by manufacturers of using software to identify component parts through a unique identifier. 

(11) “Tool” means any software program, hardware implement, or other apparatus used for diagnosis, maintenance, or repair of agricultural equipment, including software or other mechanisms that provision, program, or pair a new part, calibrate functionality, or perform any other function required to bring the product back to fully functional condition, including any updates.

(12) “Trade secret” has the meaning given it in Section 201 of Title 6.

(13)  “Updates” means recommended corrections or adjustments to parts, tools or information that are created and distributed by the OEM and used in offering the services of diagnosis, maintenance or repair of agricultural equipment.

§ 1805. Enforcement by Attorney General .

If the Attorney General determines that a failure to provide documentation, parts, or tools as described in § 1803 of this Title constitutes an unfair method of competition, false advertising, or unfair or deceptive trade practices under Chapter 25 of this Title 6, all remedies, penalties, and authority granted to the Attorney General by that law shall be available to the Attorney General for the enforcement of this chapter

§ 1806. Limitations.

(a) Nothing in this chapter shall be construed to require an original equipment manufacturer to divulge any trade secret to any owner or independent service provider, except as necessary to perform diagnosis, maintenance, or repair on fair and reasonable terms. 

(b) Nothing in this chapter shall be construed to alter the terms of any arrangement described in subsection (a) of § 1803 of this chapter in force between an authorized repair provider and an original equipment manufacturer, including, but not limited to, the performance or provision of warranty or recall repair work by an authorized repair provider on behalf of an original equipment manufacturer and pursuant to such arrangement, except that any provision in such terms that purports to waive, avoid, restrict or limit the original equipment manufacturer’s obligations to comply with this Act shall be void and unenforceable.

(c) No original equipment manufacturer or authorized repair provider shall be liable for any damage or injury to any agricultural equipment caused by an independent repair provider or owner which occurs during the course of repair, diagnosis, or maintenance and is not attributable to the original equipment manufacturer or authorized repair provider other than if the failure is attributable to design or manufacturing defects. 

(d) Nothing in this chapter shall be construed to require a manufacturer to make available special documentation, tools, and parts that would disable or override anti-theft security measures set by the owner of the product without the owner’s authorization. 

(e) Nothing in this chapter shall be construed to require a manufacturer to sell a part if the part is no longer available to the manufacturer.  

(f) Nothing in this chapter shall be construed to require a manufacturer to sell any service materials that would be illegal to use under federal or state law. 

(g) Nothing in this chapter shall be construed to prevent a parts dealer from marking up goods over the wholesale price. 

§ 1807.  Applicability. 

This chapter applies to equipment first manufactured and sold on or after the effective date of this act.

Section 2. Effective date. 

This act shall take effect 6 months after it is enacted.

SYNOPSIS

This bill promotes equipment owner choice and competition for repair and maintenance services by requiring manufacturers of agricultural equipment to make available to owners and independent repair providers, on fair and reasonable terms, the same documentation, parts, and tools used to diagnose, maintain, and repair such equipment created by the manufacturer for the purposes of repair.