88R2547 SRA-D

By: Kolkhorst S.B. No. 1654

A BILL TO BE ENTITLED

AN ACT

relating to the diagnosis, maintenance, and repair of electronics-enabled implements of agriculture.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. This Act may be cited as the Texas Agricultural Right to Repair Act.

SECTION 2. Subtitle C, Title 5, Business & Commerce Code, is amended by adding Chapter 121 to read as follows:

CHAPTER 121. DIAGNOSIS, MAINTENANCE, AND REPAIR OF

ELECTRONICS-ENABLED IMPLEMENTS OF AGRICULTURE

Sec. 121.001. DEFINITIONS. In this chapter:

(1) "Authorized repair provider" means a person that has an arrangement with an original equipment manufacturer under which the original equipment manufacturer grants to the 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 an electronics-enabled implement of agriculture on behalf of the person or the original equipment manufacturer. The term includes an original equipment manufacturer that offers diagnosis, maintenance, or repair services for the digital electronic equipment that the original equipment manufacturer manufactures or offers for sale.

(2) "Commonly available" means any item that is:

(A) commercially available for purchase from more than one seller; and

(B) not solely made available by an original equipment manufacturer for use on the original equipment manufacturer's products.

(3) "Digital electronic equipment" means any product that depends for the product's functioning, wholly or partly, on digital electronics embedded in or attached to the product.

(4) "Documentation" means any manual, diagram, reporting output, service code description, schematic, library of diagnosed issues, or other information used in the diagnosis, maintenance, or repair of an electronics-enabled implement of agriculture.

(5) "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 the equipment's functioning, wholly or partly, on digital electronic equipment.

(6) "Embedded software" means a programmable instruction provided on firmware delivered with an electronics-enabled implement of agriculture.

(7) "Fair and reasonable terms" means, with respect to making available a part, tool, software, or documentation, making the part, tool, software, or documentation available at a cost and on terms equivalent to the lowest cost and most favorable terms offered by an original equipment manufacturer to an authorized repair provider, including:

(A) in general, with respect to costs, making available any discount, rebate, or financial incentive the original equipment manufacturer offers to an authorized repair provider;

(B) in general, with respect to other terms, ensuring the terms:

(i) include equivalent methods of timeliness of delivery of the part, tool, software, or documentation that the original equipment manufacturer offers to an authorized repair provider;

(ii) do not impose on an owner or independent repair provider any substantial obligation to use or put a restriction on the use of the part, tool, software, or documentation to diagnose, maintain, or repair an electronics-enabled implement of agriculture, 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 original equipment manufacturer before the part or tool is operational; and

(iii) prohibit an original equipment manufacturer 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 an owner or independent repair provider;

(C) with respect to making available documentation, making documentation available at no cost, except that an original equipment manufacturer may charge the reasonable actual cost of preparing and sending a copy of the documentation when the documentation is requested in physical printed form; and

(D) with respect to making available software tools, making the software tools available:

(i) at no cost;

(ii) without requiring authorization or Internet access;

(iii) without imposing impediments to access or use in the course of effecting the diagnosis, maintenance, or repair of an electronics-enabled implement of agriculture; and

(iv) in a manner that does not impair the efficient and cost-effective diagnosis, maintenance, or repair of an electronics-enabled implement of agriculture to enable full functionality of the implement.

(8) "Firmware" means a software program or set of instructions programmed on an electronics-enabled implement of agriculture or on a part for the implement that allows the implement or part to communicate with a networked product or system or with other computer hardware, including any relevant patch or fix made by the original equipment manufacturer of the implement or part.

(9) "Independent repair provider" means a person that:

(A) is not an authorized repair provider of an electronics-enabled implement of agriculture; and

(B) provides diagnosis, maintenance, or repair services for the electronics-enabled implement of agriculture.

(10) "Original equipment manufacturer" means a person that manufactures an electronics-enabled implement of agriculture and sells, leases, or otherwise supplies the implement to any other person.

(11) "Owner" means a person that owns or leases an electronics-enabled implement of agriculture other than the original equipment manufacturer of the implement.

(12) "Part" means any component or subcomponent of an electronics-enabled implement of agriculture that is sold, supplied, or otherwise made available by an original equipment manufacturer for the purposes of maintaining, repairing, or diagnosing the implement.

(13) "Tool" means a software program, including a software update, hardware implement, or other apparatus used for repair-related diagnostic testing, maintenance, or repair of an electronics-enabled implement of agriculture. The term includes software or another mechanism that provides, programs, or pairs a new part, calibrates functionality, or performs any other function required to bring the implement to a fully functional condition.

(14) "Trade secret" has the meaning assigned by 18 U.S.C. Section 1839, as that section existed on January 1, 2023.

Sec. 121.002. APPLICABILITY. This chapter applies to an electronics-enabled implement of agriculture sold or leased in this state.

Sec. 121.003. REQUIREMENTS FOR ORIGINAL EQUIPMENT MANUFACTURERS. An original equipment manufacturer shall make available on fair and reasonable terms to any owner or independent repair provider:

(1) any part, tool, software, or documentation, including any updates to information or embedded software, for that equipment or part; and

(2) for equipment containing an electronic security lock or other security-related function, any part, tool, or documentation required to disable or enable an electronic security lock or other security-related function of an electronics-enabled implement of agriculture.

Sec. 121.004. PART REPLACEMENT; ACCESSIBILITY. An original equipment manufacturer shall ensure that any part required by the original equipment manufacturer's electronics-enabled implement of agriculture can be replaced without causing damage to the implement using:

(1) a commonly available tool; or

(2) a tool that is not commonly available that is made available to owners or independent repair providers by the original equipment manufacturer on fair and reasonable terms.

Sec. 121.005. CONSTRUCTION OF CHAPTER. Nothing in this chapter may be construed to:

(1) require an original equipment manufacturer to divulge a trade secret to an owner or an independent repair provider, except as necessary to make available any necessary part, tool, software, or documentation on fair and reasonable terms as required by this chapter;

(2) alter the terms of an agreement between an original equipment manufacturer and an authorized repair provider, except with respect to any provision of an agreement that would limit the obligations of an original equipment manufacturer under this chapter;

(3) require an authorized repair provider to make any part, tool, software, or documentation relating to an electronics-enabled implement of agriculture available on fair and reasonable terms, unless the authorized repair provider is the original equipment manufacturer of the implement;

(4) require an original equipment manufacturer to provide any part or equipment solely used in the development of the manufacturer's products; or

(5) 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.

Sec. 121.006. DECEPTIVE TRADE PRACTICE. A violation of this chapter is a deceptive trade practice in addition to the practices described by Subchapter E, Chapter 17, and is actionable under that subchapter.

SECTION 3. To the extent of a conflict between Chapter 121, Business & Commerce Code, as added by this Act, and a provision of an agreement entered into before the effective date of this Act, the provision of the agreement prevails.

SECTION 4. This Act takes effect September 1, 2023.