Colorado Gov. Jared Polis signed the Consumer Right To Repair Agricultural Equipment bill into law on April 25, making it the first U.S. right to repair bill focused on ag equipment to be approved by the legislature and signed by a governor. While the law won’t go into effect until 2024, it is raising concerns around the industry.
“The concerning thing that we have about right to repair — and the legislation in Colorado is a good example — is we’ve learned that our elected representatives don’t understand our industry,” says John Schmeiser, COO of the North American Equipment Dealers Assn. (NAEDA). “And no matter how much we try to educate them or the manufacturers try to educate them, they’re still not going to completely grasp it unless they’ve been in the business.”
Earlier versions of the bill required OEMs to sell OEM parts to customers and third-party repair providers “equivalent to the most favorable terms that the manufacturer offers to an authorized repair provider.” In other words, at dealer cost, according to a factsheet put together by NAEDA, Far West Equipment Dealers Assn. (FWEDA) and Associated Equipment Distributors (AED). That was ultimately struck from the bill that Gov. Polis signed, and the compromise was selling parts at manufacturer list price.
“The only dealers impacted then are those who markup parts higher than list price,” says Owen Palm, CEO of 21st Century Equipment, a John Deere dealership group with stores in Colorado.
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He adds, “As it turns out, the bill is really pretty harmless, but that was really through the efforts of all the dealers who went to work to get the bill killed. In the end we got the language watered down to the point where it’s going to have no impact on our operations.”
One of the most important parts of the act addresses user access to embedded manufacturer code. There are portions of the bill that forbid modification that would violate the Clean Air Act or state and federal laws, but Eric Wareham, vice president of government affairs for NAEDA, isn’t confident it would be of much comfort to dealers. He refers to the bill as a “Frankenstein bill,” having gone through so many modifications and amendments that its ramifications become difficult to predict.
“As it turns out, the bill is really pretty harmless, but that was really through the efforts of all the dealers who went to work to get the bill killed…” – Owen Palm, 21st Century Equipment
“[There are] provisions in the bill that allow access to embedded code, embedded software to disable security locks or security-related functions in the course of maintenance and repair,” he says. “That’s unfettered access. There’s some guarantees in the bill that you can’t use that access to make modifications that would be illegal under the Clean Air Act or other federal laws or state statutes. However, that’s little comfort for dealers who are concerned and facing modifications of equipment daily.”
Schmeiser adds, “If the question is truly about repairing your equipment, we have the tools, the diagnostic equipment and repair manuals to support you. They’ll be available to you. If the question is about modification, though, we take a different approach, because violating EPA by altering your emissions system is something that we’ll just never support. We as an association cannot condone illegal activity, and altering the emissions system is illegal.
Following the Money Behind U.S. PIRG
The U.S Public Interest Research Group (PIRG) and the various similar state-affiliated groups are one of the loudest proponents for right to repair legislation in the U.S. Farm Equipment editors have received questions from dealers asking us to dig into where the money that funds PIRG is coming from.
According to Influence Watch: “Founded by left-wing activist and former presidential candidate Ralph Nader, the U.S. Public Interest Research Group is a 501(c)(4) organization that oversees a federation of state progressive advocacy groups also known as ‘PIRGs.’ As the national organization for these independent state-based PIRGs, U.S. PIRG coordinates resources among its 47 state affiliates to make the ‘biggest impact’ for its liberal advocacy efforts. The U.S. PIRG also serves as the ‘federal lobbying office for state PIRGs’ seeking to make left-of-center state laws into federal policy and turning unsuccessful liberal federal lobbying efforts into state laws.”
While identifying all the contributors to PIRG is challenging, as a review of the organization’s 990 forms revealed little, Farm Equipment editors were able to track down one large contributor. George Soros’s Open Society Foundation contributed $400,000 to U.S. PIRG in recent years. We’ll continue to research other funding sources and provide updates.
“Secondly, on the chipping and tuning question, there’s so many downstream effects and impacts when you chip or tune your equipment. And if you want to make it easier to modify your equipment through legislation, we’re not going to do that either. We’re not going to support that either.”
Schmeiser says from the association’s standpoint, the risk of modifying equipment just isn’t worth it. “I’d rather see our industry work for an industry solution like we’ve done, and we’ve got the MOU in place,” he says. “Let’s give them an opportunity to work first, and then let’s take a step back a couple years from now just to see if these MOUs are working, but let’s focus on repair and not modification.”
Commenting on the Colorado law, John Deere provided the following written statement: “John Deere supports a customer’s decision to repair their own products, utilize an independent repair service or have repairs completed by an authorized dealer. John Deere additionally provides manuals, parts and diagnostic tools to facilitate maintenance and repairs.”
Right to Repair’s Status Outside of Colorado
Ben Thorpe, Associate Editor
Beyond what is happening with Colorado’s recently signed right to repair law, here are 3 other things to keep top of mind in 2023.
1. There are different types of right to repair bills.
According to a recent webinar from the North American Equipment Dealers Assn. (NAEDA) and Farm Equipment, as of Feb. 16, there were over 40 different bills across 19 states that could impact dealers’ operations, and some others had even popped up after their presentation was assembled.
One important fact, however, is that not all these bills are focusing on the same things.
Broad Based Bills. “Broad-based bills are anything that has a digital electronic device that depends on its operating a digital component, so that’s everything under the sun,” says Eric Wareham, vice president of government affairs for NAEDA. “These consumer electronics bills, those are the ones that list your laptop, your smartphone and tablets. And there is a slight concern that if farm equipment incorporates a computer, would our equipment and products be incorporated because they have that as a component to it? That doesn’t seem to be the case, and in some of those states, we do have exemption language, so that’s good.”
Exemption language refers to a portion of a bill that excludes certain categories of equipment from its application, some of which specify ag equipment.
“Wheelchair” Bills. One way in which right to repair advocates can pass language that impacts the ag equipment industry is by amending previously passed bills addressing different equipment, specifically wheelchair repair.
“The interesting note there is that in Colorado, last year they passed a bill for right to repair for wheelchairs,” said Wareham. “That’s kind of a hard issue for people to fight against and may not want to, but there seems to be a trend with the proponents of right to repair that we’ve seen across the country in recent years, getting these wheelchair bills passed and then coming behind it and amending on ag equipment. And that seems to be a strategy and a tactic. And so we’re monitoring those just to recognize that that’s what they’re pivoting to because they can’t get pass a right to repair bill by itself.”
Cleanup Bills. These involve right to repair bills that had passed previously but are now being “cleaned up” with amendments. For example, Massachusetts recently revisited its 2012 motor vehicle bill that targeted right to repair in motor vehicles through a ballot measure. According to Wareham, the bill is where “the genesis of the right to repair movement came from.”
2. Some bills are more concerning than others.
Several bills currently being pushed in the U.S. are specific to agriculture, though Kipp McGuire, director of government affairs for NAEDA, says not all of them are particularly concerning.
“There’s a couple that we’re honestly not overly concerned about right now,” he says. “We’ve got one in Texas, which is HB515. It sounds like it’s not too much of a worry at this point in time. Then we’ve got a Missouri House Bill 698. This one is kind of a reintroduction, with a lot of the same players that we’ve seen in the past, but I don’t think that it’s a huge worry at this point in time. There’s Montana House Bill 475, which by the sounds of it, probably isn’t going any place either.”
Looking at more concerning bills, he says the association will also be active in monitoring Minnesota Bill 1337 and West Virginia House Bill 3384.
3. There is hope for the industry.
Despite the constant battle, Wareham wants dealers to know one thing: there’s still hope out there.
“This year, certainly you can tell that there’s a lot of ag-specific bills, and you start seeing that bifurcation of breaking it up into household consumer electronics, agriculture, wheelchairs,” says Wareham. “It’s targeting different industries, because I think the proponents realize that if you have it broad-based, there’s just that many more people allied against it. We’re also seeing the same bill sponsors repeatedly, over and over and over, who despite failing several years in a row, continue to reintroduce this.
“And I think that every year we do this, more and more legislators around the capitols start to say, ‘That’s just a bad bill. You’ve tried it, you’ve had your hearings, everyone has had their voice heard, it’s just a bad idea.’ It’s not something that continues to gain traction every year. In some places that’s the case, but it seems that we have a good track record of stopping this, and hopefully that continues.”
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