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Battle Over Right to Repair Moves from State to Federal Level

In recent years, so-called “right to repair” legislation has proliferated across the country. AED, working with OEMs and other dealer organizations, has successfully prevented these proposals from passing in state legislatures. However, now the issue is gaining traction at the federal level as the Biden administration and lawmakers in Congress seek to address it through misguided proposals in Washington.

What Is Right to Repair?
Right to repair policies require manufacturers to give consumers and the broader public access to diagnostic tools, parts and information needed to modify and fix just about any product utilizing software. Aimed initially at consumer products, such as cell phones and computers, the language is significantly broad enough that it would permit unfettered access to the software that governs safety, security and emissions technology on heavy equipment. In fact, right to repair advocates have explicitly stated that they want to give farmers the ability to repair and modify equipment.

AED opposes the right to repair proposals because they put at risk the safety, durability, and environmental compliance of equipment and pose serious liability issues for equipment dealers. Furthermore, there are significant intellectual property ramifications.
 
Federal Right to Repair
On July 9, President Joe Biden signed a sweeping executive order (EO) “promoting competition in the American economy.” The expansive directive includes 72 initiatives to more than a dozen federal agencies, including encouraging the Federal Trade Commission (FTC) to limit “equipment manufacturers from restricting people’s ability to use independent repair shops or do DIY repairs.”

Specifically, the EO urges the FTC chair to consider working with the rest of the commission to exercise the FTC’s statutory rulemaking authority to address “unfair anti-competitive restrictions on third-party repair or self-repair of items, such as the restrictions imposed by powerful manufacturers that prevent farmers from repairing their own equipment.”

“Unfortunately, the right to repair directive is a solution in search of a problem,” said AED’s President and CEO, Brian P. McGuire. “Currently, consumers of heavy equipment can diagnose and repair their machinery and tractors. They don’t have the ability to alter the safety, security and environmental protections on the equipment. AED strongly urges the FTC to consider the significant differences between repairing heavy machinery and modifying or tampering with it, as the agency ponders future action.”

Unlike many other federal agencies, the FTC is independent and isn’t under the direct control of the president. Therefore, the ability of the White House to compel FTC action is significantly limited. However, a recently released FTC report on repair restrictions certainly shows a predisposition by the agency to act.

Despite the EO, it’s unclear what steps the FTC will take or even which actions the agency has the statutory authority to commence without congressional authorization.

Additionally, Rep. Joseph Morelle (D-N.Y.) recently introduced legislation to mandate the right to repair nationally. The Fair Repair Act (H.R. 4006) would require OEMs to make diagnostic and repair information, parts, and tools available to third-party repairers and owners in a timely manner and on fair and reasonable terms. “For too long, large corporations have hindered the progress of small business owners and everyday Americans by preventing them from the right to repair their own equipment,” said Morelle after the bill’s introduction. “It’s long past time to level the playing field, which is why I’m so proud to introduce the Fair Repair Act and put the power back in the hands of consumers.”
 
AED’s Activities
 AED, working together with the broader equipment industry and other trade associations, will engage the FTC and Congress to educate them about the risks to equipment safety, durability, and environmental compliance posed by the EO and H.R. 4006 and to oppose granting unfettered access to allow modification of embedded software and source code.

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