S. 3068 — FARM Act

This section defines 10 terms for purposes of the Act, including "farm equipment" (i.e., equipment designed primarily for use in farm operations such as combines, tractors, sprayers, and implements); "original equipment manufacturer (OEM)"; "independent repair provider" (i.e., a person who is not an authorized repair provider and provides diagnosis, maintenance, or repair services for farm equipment); "authorized repair provider"; "documentation" (i.e., manuals, diagrams, schematics, and other information used for farm equipment diagnosis, maintenance, or repair); and "fair and reasonable terms" (i.e., specified cost and nondiscriminatory conditions for OEM-provided parts, tools, software, and documentation). It also defines related terms such as "farm equipment data," "firmware," "commonly available," and "maintenance" (cross-referencing 17 U.S.C. §117(d)).

This section requires original equipment manufacturers (OEMs) of farm equipment to make available, on fair and reasonable terms, (1) documentation, parts, software, firmware, or tools to owners or independent repair providers for diagnosing, maintaining, upgrading, reprogramming, or repairing such equipment; and (2) equipment data generated by an owner's farm equipment. It further requires OEMs to provide, on fair and reasonable terms, any documentation, part, software, or tool needed to disable or enable a technological protection measure or other security-related function. Notwithstanding the prohibition on circumvention in 17 U.S.C. 1201(a)—which generally bars circumventing technological measures that effectively control access to copyrighted works, subject to triennial rulemaking exemptions by the Librarian of Congress—this section authorizes (1) such circumvention for diagnosing, maintaining, upgrading, reprogramming, or repairing farm equipment; (2) to the extent not covered by existing exemptions, enabling interoperability; (3) to the extent not covered by existing exemptions, conducting security research; and (4) enabling noninfringing modifications. (Thus, owners and independent repair providers may bypass access controls on copyrighted software or firmware in farm equipment without violating the DMCA.) It also authorizes, notwithstanding 17 U.S.C. 1201(a) or (b), manufacturing, importing, or trafficking in circumvention technologies for those purposes. Finally, it subjects OEMs to civil penalties for ceasing to offer required items and requires that OEM parts be replaceable without equipment damage using either a commonly available tool or an OEM-provided tool on fair and reasonable terms.

This section establishes that violations of section 3 or regulations under this Act constitute unfair or deceptive acts or practices under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)); grants the Federal Trade Commission (FTC) full enforcement authority, powers, jurisdiction, duties, penalties, privileges, and immunities as provided in the FTC Act (15 U.S.C. 41 et seq.); and imposes additional civil penalties on original equipment manufacturers (OEMs) for violating section 3(d)(1) of $1,000 per day for a first violation, $2,000 per day for a second violation, and $5,000 per day for third and subsequent violations.

This section requires the Commission to promulgate rules necessary to carry out the Act using notice-and-comment procedures under the Administrative Procedure Act (5 U.S.C. §553)—which generally mandates Federal Register publication of proposed rules, public comment periods, and a 30-day delayed effective date for substantive rules (with exceptions for interpretative rules, good cause findings, etc.). It further requires those rules to be consistent with the Clean Air Act and related EPA regulations, including 40 C.F.R. §1068.101(b)(1) (prohibiting introduction or sale of noncertified engines or equipment) and (b)(6) (prohibiting installation of auxiliary emission control devices).

This section establishes limitations on the Act's requirements and scope, providing that nothing in the Act may be construed (1) to require an original equipment manufacturer (OEM) to divulge trade secrets to an owner or independent service provider, except as necessary to provide access to repair material or process on fair and reasonable terms; (2) to alter agreements between an OEM and authorized repair provider, except provisions limiting the OEM's obligations under the Act; (3) to require an authorized repair provider to make available documentation, parts, or tools for farm equipment from an OEM with which it lacks an arrangement under section 2(1); (4) to require an OEM to provide parts or equipment used solely in product development; or (5) to allow (A) modifications permanently deactivating safety notification systems; (B) access to tools enabling permanent changes to settings that violate safety or emissions laws; (C) violations of emissions or copyright laws; or (D) other illegal modifications.