Mass. senators urge NHTSA to rethink R2R opposition

WASHINGTON — U.S. Senators Elizabeth Warren and Edward Markey, D-Mass., are calling for the National Highway Traffic Safety Administration (NHTSA) to reconsider its recently published opposition to right-to-repair (R2R) legislation in Massachusetts.

"NHTSA's decision to give auto manufacturers a green light to ignore state law appears to favor Big Auto, undermine the will of Massachusetts voters and the Biden Administration's competition policy, and raise questions about both the decision process and the substance of the decision by NHTSA's leadership" the Massachusetts senators wrote in a letter to Secretary of Transportation Pete Buttigieg and NHTSA Deputy Administrator Sophie Schulman.

"We are asking NHTSA to explain its rationale for its harmful actions and respect Massachusetts state law by reversing course," they wrote.

NHTSA issued a statement on June 13 notifying 22 vehicle makers with assembly operations in the U.S. that the agency's position is that provisions of the National Traffic and Motor Vehicle Safety Act (Safety Act) pre-empted Massachusetts' Right to Repair law, and that complying with the Massachusetts law would "conflict with (their) obligations under the Safety Act."

More specifically, NHTSA said a malicious actor "could utilize such open access to remotely command vehicles to operate dangerously, including attacking multiple vehicles concurrently."

NHTSA added that "open access to vehicle manufacturers' telematics offerings with the ability to remotely send commands allows for manipulation of systems on a vehicle, including safety-critical functions such as steering, acceleration, or braking."

Massachusetts' Right to Repair law — passed by voters in November 2020 — requires vehicle makers that sell vehicles in the Commonwealth to equip them with a standardized open-data platform so that owners and independent mechanics can access vehicle telematics data for repairs, maintenance and diagnostics.

The law passed via ballot initiative, with nearly three-fourths of Massachusetts residents voting in favor. Vehicle manufacturers spent $25 million to oppose the initiative and filed suit to stop the law from going into effect weeks after it passed, the two Massachusetts senators said in their letter.

Massachusetts Attorney General Andrea Joy Campbell began enforcing the law on June 1, following two years of legal process.

"It is disappointing that NHTSA's letter relies on the argument pushed by major automobile manufacturers that there is, in this case, an irresolvable conflict between maintaining data security and providing independent repair shops with the data they need to conduct repairs," the senators wrote.

"Auto manufacturers have routinely raised safety concerns as a way to 'change the subject' and distract consumers from the fact that 'vehicle repair and maintenance services from independent repair shops keeps the cost of service and repair down.'"

NHTSA sent the June 13 letter to the vehicle makers unprompted, an action the senators view as one that contradicts a judicial order, undermines Massachusetts voters, harms competition and hurts consumers.

"Moreover," the senators said, "NHTSA's position is not consistent with administration policy. President Biden's executive order on Promoting Competition in the American Economy (EO 14036) states that it is the policy of the administration to combat the 'harmful effects of monopoly and monopsony . . . (in) repair markets,' and encourages the Federal Trade Commission to draft new regulations limiting 'manufacturers from restricting people's ability to use independent repair shops or do DIY repairs.'"

In addition, the Auto Care Association, Coalition for Auto Repair Equality and the Massachusetts Right to Repair Coalition have been working closely together to craft a response to that letter and to develop a plan to refute NHTSA's misunderstandings over the interpretation of the law.