Florida Senate - 2022 SB 1320 By Senator Bradley 5-01374-22 20221320__ 1 A bill to be entitled 2 An act relating to the fair repair of agricultural 3 equipment; providing a short title; creating s. 4 686.35, F.S.; defining terms; requiring original 5 equipment manufacturers of agricultural equipment to 6 make certain manufacturing, diagnostic, and repair 7 information available to independent repair providers 8 and owners; prohibiting the original equipment 9 manufacturers from excluding certain information 10 concerning security-related functions; providing 11 construction and applicability; providing civil 12 liability; providing an effective date. 13 14 Be It Enacted by the Legislature of the State of Florida: 15 16 Section 1. This act may be cited as the “Agricultural 17 Equipment Fair Repair Act.” 18 Section 2. Section 686.35, Florida Statutes, is created to 19 read: 20 686.35 Fair repair of agricultural equipment.— 21 (1) As used in this section, the term: 22 (a) “Authorized repair provider” means an individual or an 23 entity that has an arrangement for a definite or indefinite 24 period in which an original equipment manufacturer grants to a 25 separate individual or entity a license to use a trade name, 26 service mark, or related characteristic for the purpose of 27 offering repair services under the name of the original 28 equipment manufacturer. 29 (b) “Embedded software” means any programmable instructions 30 provided on firmware delivered with the equipment for the 31 purpose of equipment operation, including all relevant patches 32 and fixes made by the original equipment manufacturer for this 33 purpose. The term includes, but is not limited to, a basic 34 internal operating system, an internal operating system, a 35 machine code, an assembly code, a robot code, or a microcode. 36 (c) “Equipment” means digital electronic equipment, or a 37 part for such equipment, which is originally manufactured for 38 farm equipment, including combines, tractors, implements, self 39 propelled equipment, and related attachments and implements, and 40 which is manufactured for distribution and sale in this state. 41 (d) “Fair and reasonable terms” means an equitable price in 42 light of relevant factors, including, but not limited to: 43 1. The net cost to the authorized repair provider for 44 similar information obtained from an original equipment 45 manufacturer, excluding any discounts, rebates, or other 46 incentive programs; 47 2. The cost to the original equipment manufacturer for 48 preparing and distributing the information, excluding any 49 research and development costs incurred in designing and 50 implementing, upgrading, or altering the product, but including 51 amortized capital costs for the preparation and distribution of 52 the information; 53 3. The price charged by other original equipment 54 manufacturers for similar information; 55 4. The price charged by original equipment manufacturers 56 for similar information before the launch of original equipment 57 manufacturer websites; 58 5. The ability of aftermarket technicians or shops to 59 afford the information; 60 6. The means by which the information is distributed; 61 7. The extent to which the information is used, including 62 the number of users and the frequency, duration, and volume of 63 use; and 64 8. Inflation. 65 (e) “Firmware” means a software program or set of 66 instructions programmed on a hardware device to allow the device 67 to communicate with other computer hardware. 68 (f) “Independent repair provider” means a person or 69 business operating in this state which is not affiliated with an 70 original equipment manufacturer or an original equipment 71 manufacturer’s authorized repair provider and which is engaged 72 in the diagnosis, service, maintenance, or repair of equipment. 73 However, an original equipment manufacturer meets the definition 74 of an independent repair provider when such original equipment 75 manufacturer engages in the diagnosis, service, maintenance, or 76 repair of equipment that is not affiliated with the original 77 equipment manufacturer. 78 (g) “Motor vehicle” means any vehicle that is designed for 79 transporting persons or property on a street or highway and 80 certified by the motor vehicle manufacturer under all applicable 81 federal safety and emissions standards and requirements for 82 distribution and sale in the United States. The term does not 83 include a motorcycle or a recreational vehicle or manufactured 84 home equipped for habitation. 85 (h) “Motor vehicle dealer” means a person or business that, 86 in the ordinary course of business, is engaged in the selling or 87 leasing of new motor vehicles to a person or business pursuant 88 to a franchise agreement; is engaged in the diagnosis, service, 89 maintenance, or repair of motor vehicles or motor vehicle 90 engines pursuant to such franchise agreement; and has obtained a 91 license under s. 320.27. 92 (i) “Motor vehicle manufacturer” means a person or business 93 engaged in the manufacturing or assembling of new motor 94 vehicles. 95 (j) “Original equipment manufacturer” means a person or 96 business that, in the ordinary course of business, is engaged in 97 the selling or leasing of new equipment to a person or business 98 and is engaged in the diagnosis, service, maintenance, or repair 99 of such equipment. 100 (k) “Owner” means a person or business that owns or leases 101 a digital electronic product purchased or used in this state. 102 (l) “Part” means a replacement part, either new or used, 103 which the original equipment manufacturer makes available to the 104 authorized repair provider for purposes of effecting repair. 105 (m) “Trade secret” means anything tangible or intangible or 106 electronically stored or kept which constitutes, represents, 107 evidences, or records intellectual property, including secret or 108 confidentially held designs, processes, procedures, formulas, 109 inventions, or improvements or secret or confidentially held 110 scientific, technical, merchandising, production, financial, 111 business, or management information. The term also includes any 112 other trade secret as defined in 18 U.S.C. s. 1839, as such 113 section existed on January 1, 2020. 114 (2) For equipment sold and used in this state, the original 115 equipment manufacturer shall make available diagnostic and 116 repair documentation, including repair technical updates and 117 updates and corrections to embedded software, to any independent 118 repair provider or owner of equipment manufactured by such 119 original equipment manufacturer. The information must be made 120 available for no charge or provided in the same manner as the 121 original equipment manufacturer makes such diagnostic and repair 122 documentation available to an authorized repair provider. 123 Thereafter, the original equipment manufacturer is not 124 responsible for the content and functionality of such 125 aftermarket diagnostic tools, diagnostics, or service 126 information systems. 127 (3) Original equipment manufactured by the original 128 equipment manufacturer which is sold or used in this state to 129 provide security-related functions may not exclude from 130 information provided to an owner or independent repair provider 131 any diagnostic, service, and repair documentation necessary to 132 reset a security-related electronic function. If such 133 documentation is excluded under this section, the documentation 134 necessary to reset an immobilizer system or a security-related 135 electronic module must be obtained by an owner or independent 136 repair provider through the appropriate secure data release 137 systems. 138 (4) This section may not be construed to do any of the 139 following: 140 (a) Require an original equipment manufacturer to divulge a 141 trade secret. 142 (b) Abrogate, interfere with, contradict, or alter the 143 terms of an agreement executed and in force between an 144 authorized repair provider and an original equipment 145 manufacturer, including, but not limited to, the performance or 146 provision of warranty or recall repair work by an authorized 147 repair provider on behalf of an original equipment manufacturer 148 pursuant to such authorized repair agreement, except that any 149 provision in such an authorized repair agreement which purports 150 to waive, avoid, restrict, or limit an original equipment 151 manufacturer’s compliance with this section is void and 152 unenforceable. 153 (c) Require original equipment manufacturers or authorized 154 repair providers to provide an owner or independent repair 155 provider access to nondiagnostic and repair documentation 156 provided by an original equipment manufacturer to an authorized 157 repair provider pursuant to the terms of an authorized repair 158 agreement. 159 (5) This section does not apply to motor vehicle 160 manufacturers, any product or service of a motor vehicle 161 manufacturer, or motor vehicle dealers. 162 (6) Any original equipment manufacturer found in violation 163 of this section is liable for a civil penalty of not more than 164 $500 for each violation. 165 Section 3. This act shall take effect July 1, 2022.