Capitol Reflections: 2020 Session Issue 5

“One of the methods used by statists to destroy capitalism consists in establishing controls that tie a given industry hand and foot, making it unable to solve its problems, then declaring that freedom has failed and stronger controls are necessary.”

Ayn Rand

Right to Repair 

BOISE - As technology advances in machinery, the legal right for a farmer to fix their machinery has become more complicated. With increasing laws and regulations designed to protect intellectual property, the farmer’s legal ability to repair his or her equipment has begun to be jeopardized. Members have expressed concerns over the restrictions on being able to even conduct simple servicing of equipment that has already been purchased, specifically by third parties.

This week, two bills concerning the right to repair were introduced in the Idaho Legislature. One was introduced in the House Energy, Environment, and Technology Committee by Representative Britt Raybould ( R Rexburg). The other was introduced in the Senate Commerce and Human Resources Committee by Senator David Nelson (D Moscow). 

The two pieces of legislation differ in their approach in a couple of ways, but the stated purpose of both of them is to ensure the protection of an individual’s right to repair the property that they own. Representative Raybould’s bill takes the approach of creating a new chapter that clearly delineates the right to repair with specificity to the implementation of such a right. In the presentation of this bill, Representative Raybould expressed her intent with the legislation to ensure that farmers who have purchased access to diagnostic equipment can have a third party operate such equipment. In high utilization seasons, such as planting and harvest, delays in repairing equipment can be devastating for producers. One of the issues presented is a farmer’s ability to have a third party repair the equipment. These third parties frequently referred to as “independent repair providers” or independent repair facilities” are often necessary for a farmer to have his or her equipment fixed.

For example, a farmer may choose to have a mechanic replace a mechanical component, but the computer would be required to be adjusted to reflect that change. In many circumstances, however, that third party may not be allowed to access the technology, even though the owner of the property has authorized its repair through utilizing the services of a said independent repair provider.

Senator Nelson’s bill also had the stated intent of ensuring that farmers can repair equipment and have access to the diagnostic software necessary for a complete repair. The scenario mentioned above was specifically referenced by Senator Nelson in his introductory remarks on the bill. This legislation specifically excludes the automotive industry and other industries that may have previously created a memorandum of understanding of the application of said repair efforts. In contrast to Representative Raybould’s bill, instead of adding a new chapter specifically delineating this right, this bill amends existing law and adds a new section within it to accomplish its purposes.

Because of this increasingly complex issue, the American Farm Bureau Federation has policy adopted by its members supporting legislation that would ensure the protection of a farmer’s right to repair their equipment. As Idaho Farm Bureau Policy states, “Ownership of property and property rights are among the human rights essential to the preservation of individual freedom. The right to own property must be preserved at all costs.” Opponents of the Right to Repair legislation often point out the important balance that must be struck between the important protection of the property rights of the individual who has purchased the equipment without infringement on the intellectual property right of the developer of the equipment. However, the important consideration to be made is that the technology necessary to run the equipment is purchased with the equipment, thus the purchaser owns, and thus has a right to use, the technology they have purchased. While the future production of such technology may legally be restricted to the developing company, the utilization of it rightfully belongs to those who own the purchased property. Thus, trade secrets and intellectual property can easily be protected without infringing upon, and in some cases, removing the individual’s property rights expressed in their right to repair their equipment.

American Farm Bureau policy supports, amongst many other components of the right to repair, equipment owners and the independent repair facilities (the third parties mentioned above) being able to “have machine connectivity” through multiple means, “look up diagnostic codes… have and keep the right to do general maintenance and daily servicing… access repair and technical manuals; and repair and service equipment during the warranty or extended warranty periods.” We will continue to monitor these two pieces of legislation as they develop and go through the committee process as the interest of the Farm Bureau is in the agricultural equipment component of the Right to Repair legislation. Since both of these bills encompass this aspect, we will continue to carefully follow and keep our members apprised of this legislation.

Inmate Trainee Legislation Sees Movement

BOISE - Representative Doug Ricks (R-Rexburg) carried an inmate trainee bill in House Judiciary and Rules Committee this week. H373 is this year’s attempt to expand the inmate trainee legislation that has been worked on for multiple years prior with the help of Kevin Mickelson, General Manager of Idaho Correctional Industries (ICI). In previous years Idaho Farm Bureau has been in support of the legislation and helped work on drafts of the bill to assist in the process. There was movement last year for a similar bill sponsored by Senator Patti Anne Lodge (R-Huston), but the bill got hung up in the House side and was never addressed before the end of the session.

H373 clarifies the language of the statute to make it clear that inmates who choose to participate in the program are trainees and not employees of the farmer. This ICI program is meant to serve as a way to encourage inmates to receive training and real-life skills to prepare them for work upon their release back into society. H373 does not change how the current program operates, it simply cleans up language for better clarity and opens more opportunities for work in the agricultural sector.  Previously, inmates were only allowed to work with perishable food products.  However, under H373 inmates can now  work “in the production, harvesting, and processing of agricultural products.” This allows trainees to participate in training through a wider variety of agricultural operations such as dry farming and horticulture.

Idaho agriculture has suffered from the problem of labor shortages for several years now. With Idaho’s unemployment rate below 3%, it is becoming even more difficult for agriculture to find domestic workers to fill positions they desperately need. H373 will not be a solve-all to the labor issue Idaho agriculture has, but it does provide an opportunity to bring more, much needed, workers to the industry. 

H373 passed through House Judiciary and Rules Committee unanimously and will now move to the House floor for a vote by the body. Idaho Farm Bureau thanks Representative Ricks for bringing this legislation forward to provide some small relief to agriculture labor shortages in the state while providing much needed job skills and training for inmates. IFBF supports H373.

Bond and Levy Elections

BOISE - This week Rep Wendy Horman (R-Idaho Falls) introduced H393 which would require all levy and bond elections to be held on either the primary or general election dates.  There is a rising concern amongst citizens across the state that school districts are gaming the system with levy or bond elections.  Currently, rather than doing their homework up front by working with citizens and sharpening their pencils to determine the minimum funding amount that is necessary to accomplish the goal, many times they instead place outrageously lavish proposals on the ballot to judge the reaction of the voters.  Depending on how close the vote is, they may then make a few minor tweaks and run the issue again only a couple of months later to see how many additional votes they can pick up.  If necessary, they can run it again within another couple of months to see if they have the votes. 

Not only can voter fatigue set in, but the districts are also fully aware that there is a much lower voter turnout at elections that are not on the primary or general election day.  Those other two dates mean that they have a much better shot at getting the vote they need if they can get their supporters to turn out while most of the electorate doesn’t even realize there is an election going on.  H393 would remove the option of holding elections for school bonds or levies in March or August and instead require that they only are held on the primary and general election dates.  H393 will have a hearing in the House State Affairs committee in the near future.  IFBF policy #121 supports consolidating elections for bonds and levies.  IFBF supports H393.

Cattle Nutrient Management Plan

BOISE - On Wednesday H356 passed on the House floor and moves to the Senate for consideration. The bill passed with 68 AYES and 2 Absent votes. H356 ensures that any cattle nutrient management plan that is submitted via the ISDA website cannot be disclosed and establishes that it is strictly proprietary information. Currently, all beef feeding operations must submit a “Nutrient Management Plan” to ISDA for approval. There are multiple avenues to creating and submitting a plan, one such way is the web-planner that is housed through ISDA. When going through the web-based option, the submitted plan is then housed on file in the ISDA database. If an operation were to submit a written copy, it is returned to the operator for them to store upon approval. This bill provides our members who utilize the web-planner option protection for their proprietary information and ensures ISDA’s responsibility for treating the information as confidential. There are similar assurances currently in state statues when it comes to keeping proprietary information confidential and prevents disclosure. H356 takes the proper steps to ensure that this applies to the web-based management planner for beef feeding operations. IFBF supports H356.

Free Range Hogs? 

BOISE - If you have ever wondered why the legislature only seems to make new laws and why don’t they ever repeal old laws, this is the session for you.  The legislature is taking Governor Little up on his invitation to clean out old, unnecessary and inactive laws similar to what they did with the rules review this past year.  One example is S1286.  It was found that there are five sections of code from the 1880s still in Idaho law dealing with trespassing hogs and hogs running at large.  S1286 would repeal all five sections which are no longer used as they have been superseded by various other statutes regarding trespassing animals.   The entire bill is only five sentences, each repealing one of the outdated code sections.  There are several other examples of bills this year that repeal outdated, inoperative language from Idaho code.  IFBF will be watching to ensure no sections of code that are still important to agriculture are inadvertently targeted for removal.  This effort will likely require many years to do a thorough job of house cleaning.  If you have any code sections that you think are ripe for repeal, please let us know and we will pass it along to the Legislature for consideration.  We commend Governor Little and the Legislature for working together to remove unnecessary and inoperative laws.

Idaho Potato Commission 

BOISE - A bill dealing with the structure and governance of the Idaho Potato Commission (IPC) has been introduced by Rep. Britt Raybould (R-Rexburg). Typically, any bill dealing with a commodity commission in the state receives plenty of attention and scrutiny. H389 has been no exception.

By way of background, the IPC was formed in 1937 to contribute to the economic welfare of the potato industry in the state through promotion, marketing, and research. The IPC also is tasked with the protection of the Idaho potato trademark and certifications. The commission is funded by a potato tax of 12.5 cents per hundredweight. Of that, 7.5 cents is paid by the grower and 5 cents is paid by the shipper or processor.

H389 proposes to do five things to the statutes that govern the IPC: First, it establishes that commissioners serve at the pleasure of the governor; second, it changes district boundaries for grower commissioners; third, it adjusts the commissioner appointment start date; forth, it updates the definitions for growers, shippers, and processors; and fifth, provides a referendum provision and process.

According to the sponsor, the purpose of the language that states commissioners serve at the pleasure of the governor is to provide the IPC anti-trust protection for its promotion and marketing activities. This is currently the practice of the IPC; however, this bill codifies this detail. Other state commodity commissions have also been updated to include similar language.

The proposed changes to grower commissioner districts are outlined as follows: District 1 would consist of Canyon, Owyhee, Payette, Boundary, Bonner, Kootenai, Shoshone, Benewah, Latah, Clearwater, Nez Perce, Lewis, Idaho, Adams, Washington, Gem, Ada, Gooding, Jerome, Twin Falls, Elmore, Lincoln, Lemhi, Boise, Camas, Valley, and Custer counties; District 2 consisting of Cassia, Minidoka, Blaine, and Butte counties; District 3 consisting of Madison Jefferson, Fremont, Bonneville, Teton, and Clark counties; and District 4 consisting of Bingham, Power, Bannock, Oneida, Franklin, Bear Lake, and Caribou counties. These changes divide the state into relatively equitable production areas based on sacks of potatoes produced. There would be one grower commissioner from each of the four districts, and the fifth grower commissioner would be an at-large representative from Districts 3 and 4. This is due to more potato production happening on the eastern side of the state.

The adjustment of the start date of the commissioner appointments from September 15 to September 1 is for financial and accounting purposes only and serves as a simple cleanup of the statute. The definition changes to “shipper” are to better reflect those operations that are vertically integrated between growing and shipping potatoes. The bill also specifies that the definitions outlined in the statute (growers, shippers, and processors) are only to apply for the qualification requirements to serve on the IPC.

The referendum language in the bill provides the IPC with the power to call for a referendum. For a referendum to be called, it must be supported by at least six of the nine commissioners; one of which must be a shipper, and another of which must be a processor. Referendum provisions vary significantly amongst the different state commodity commissions, with some having no provision at all, others with different requirements to call for a referendum, and others offering a simple refund provision.

IFBF policy supports certain aspects of the bill, including commissioner districts representing even areas of production. The bill does not address all the concerns that have been raised regarding the IPC; however, it does provide for needed clarifications and commissioner district adjustments. We are also encouraged by the progress to provide a referendum option; however, we would like to see this provision improved upon. IFBF will continue to work for such improvements to the referendum provision. IFBF supports H389 and will continue to advocate for additional improvements to be made to the IPC.

Industrial Hemp 

BOISE - The topic of legalizing industrial hemp continues to be debated in the statehouse. Currently, there have been two bills introduced that would remove hemp and its derivatives from the state’s Schedule I/Controlled Substances list. Public hearings have not yet been held on these bills, as legislators continue to work for a solution. Farm Bureau continues to advocate for legalizing the production of industrial hemp in the state so our farmers can have the opportunity, if they so choose, to grow the crop. More updates on this topic will be provided in future issues of Capitol Reflections as this issue continues to develop.