Proponents of automotive “right to repair” legislation in Maine have filed paperwork for a statewide referendum in 2023, even as a federal judge weighs a legal challenge by automakers to a similar measure passed by Massachusetts voters in November 2020.
The Maine Right to Repair Coalition filed an application for a citizens initiative and a draft of proposed legislation with the Secretary of State’s Office on Wednesday. As in Massachusetts, the legislation calls for the creation of a “standardized access platform” for data generated, collected, and transmitted by vehicles.
Coalition member Tim Winkeler, president and CEO of VIP Tires & Auto Service in Auburn, told Repairer Driven News that the legislation is necessary to make sure that independent repairers have access to wireless data needed for the proper repair and maintenance of vehicles.
He described the legislation as a follow-up to the 2014 Memorandum of Understanding (MOU) signed by representatives of the OEMs and the aftermarket industry, which was prompted by Massachusetts’ original right-to-repair law. The MOU, which safeguards independent shops’ access to OEM repair and maintenance information, has “generally worked well,” Winkeler said.
He said the Maine coalition had been hoping for guidance from the Massachusetts lawsuit, but reached the point where it could no longer wait for a ruling if it wanted to meet deadlines for getting the measure on the 2023 ballot. A decision in that case has been postponed several times.
According to a draft of the legislation provided by the Secretary of State’s Office, the legislation would cover all “mechanical data” generated, stored in, or transmitted by a vehicle needed for the “diagnosis, repair or maintenance of a motor vehicle.”
The data would be accessible through a “standardized access platform” to be administered by an independent entity that includes, at a minimum, representatives of the automakers, aftermarket parts manufacturers, aftermarket parts distributors and retailers, independent vehicle service providers; and new car dealers.
The entity would be responsible for monitoring and developing policies for “the evolving use and availability of data,” and for enforcement through the state attorney general’s office. It would also be responsible for making sure that the platform is secure.
Within a year of the law’s enactment, OEMs whose products are sold in Maine would be required to “equip such vehicles with an inter-operable, standardized and owner-authorized access platform across all of the manufacturer’s makes and models.” Presumably, the OEMs would have responsibility for creating the platform.
Access would include the ability by any “independent repair facility” or dealer to transmit commands to in-vehicle components if needed for maintenance, and repair. The access would only be provided during the time needed for work to be done, or for a period agreed to by the vehicle owner.
Excluded would be data needed to reset a vehicle immobilizer system or other “security related electronic modules.”
The state’s new car dealers would be required to provide information about vehicle telematics systems to buyers, using a notice drafted by the attorney general’s office. The notice would include information about what data is generated, stored, and transmitted; how the data is used; and how the owner can access the data through a mobile device.
Massachusetts decision pending
Meanwhile, a challenge to voter-enacted data access legislation brought by the Alliance for Automotive Innovation (AAI) appears to be headed toward a resolution in Massachusetts.
AAI filed suit in November 2020, after Massachusetts voters approved the Data Access Law. Under Section 2 of the law, any OEM that sells a vehicle in the state that utilizes a telematics system “shall be required to equip such vehicles with an inter-operable, standardized and open access platform across all of the manufacturer’s makes and models.” The legislation became effective with the 2022 model year.
AAI claims that, among other things, the deadline was impossible to meet, and that OEMs could not comply with the law without violating federal safety and environmental laws. It is asking the court to permanently enjoin enforcement of the law. Massachusetts Attorney General Maura Healey has agreed not to enforce the law, pending resolution of the lawsuit.
The AAI has argued that the new Massachusetts law would require OEMs to introduce cybersecurity risks to their vehicles, and that the 2022 model year time frame made designing, testing and implementing meaningful countermeasures impossible.
Critics have also said that the legislation does not, in fact, expand access to information needed by repairers beyond the state’s original right-to-repair legislation, Chapter 93J of the Massachusetts General Laws, enacted in 2012.
Arguments in the case concluded in June 2021. U.S. District Court Judge Douglas P. Woodlock has delayed issuing his opinion and finding of facts several times, most recently, because he needed to consider the implications of the Supreme Court’s June 30 ruling in West Virginia v. Environmental Protection Agency. The justices ruled that, in general, the EPA can’t make power plants switch to sustainable energy sources under the Clean Air Act but can still regulate greenhouse-gas emissions.
Woodlock has scheduled a closed-door hearing for Sept. 1, indicating that his long-anticipated opinion might be imminent. He did not indicate the reason for the hearing, which will be conducted by video conference. He said the hearing would be held “in camera,” a Latin phrase meaning “in chambers,” which means that members of the public will be excluded.
Generally, an in camera examination may be made of confidential or sensitive information to determine whether to make it part of the public record, according to the website USLegal.
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