Bonding, Aftermarket Parts Disclosures Won’t Fall Under Maine Right to Repair Law, Group Decides

At the latest meeting of a group drafting legislation, a state official said proposed language doesn’t fit the scope of the report.

Maine-right-to-repair-working-group
A screenshot from the working group's Dec. 20 meeting.

Maine decision-makers indicated Dec. 20 they may soften certain parts of a proposal the Office of the Maine Attorney General deems outside the spirit of a right to repair law passed by 84% of the state’s voters in November 2023.

The repair language in question encompasses whether independent repair facilities should be required to be bonded, disclose the extent of warranty protections for performed work, notify customers whether technicians are manufacturer-certified, and inform customers whether OEM parts are used in repairs.

During the Dec. 20 meeting of the Maine Automotive Right to Repair Working Group, Maine Chief Deputy Attorney General Christopher Taub said proposed report language doesn’t fit the scope of the required report, drawing a rebuttal from Alliance for Automotive Innovation lobbyist Elizabeth Frazier.

In November 2023, Maine voters passed a ballot initiative that requires manufacturers to give car owners, independent repair shops and licensed dealers a wide range of vehicle data for repair and diagnostic purposes. Maine’s right to repair working group has held semimonthly meetings since late August, as it prepares to send the Maine Legislature in February a report outlining the framework for an independent entity to govern vehicle data transmitted to independent shops for repair purposes.

The working group posted drafts of its latest report and proposed right to repair legislation, both dated Dec. 6, on its website prior to a Dec. 20 meeting of the working group.

“I just don't feel that those belong in this report,” Taub said, referencing the above mentioned language. “Those have nothing to do with what the independent entity is charged with doing.”

Frazier questioned whether the language could be recontextualized as non-consensus “considerations” rather than hard and fast, unanimous “recommendations.”

“I've seen this [distinction] in a lot of other report-outs from these types of study groups, and it would preclude us from having to go through this exercise,” said Frazier, an attorney for Pierce Atwood.

Taub said if the report distinguishes considerations from recommendations, it would have to include input from all stakeholders that commented, not a select handful.

“I don't want to make this into a thing that just goes back and forth forever, and I don't think it will, but I think we have to wait and just what sort of language people are suggesting” prior to completion of the report, Taub said.

To streamline the process, Taub cautioned working group members to be straightforward and avoid any argumentative tone in their forthcoming comments.

The working group then agreed to allow submission of further considerations and counter-considerations for the final report before its submission in February.

Fellow working group members also agreed with Taub that certain proposed language falls outside the intended scope of the report, particularly the language covering bonding for repair shops, and disclosure of information to consumers such as OEM certifications and use of aftermarket parts.

“This should have nothing to do with anybody disclosing certifications,” said Tim Winkeler, president and CEO of Falmouth, ME-based VIP Tires & Service. “This is … why it's been so hard for our industries to come together and find common-sense solutions, because if you read these, it's essentially saying, ‘Let's scare every consumer out of an independent shop back to a dealership.’”

O’Reilly Auto Parts spokesperson Jeff Groves said the proposed language appeared to be an attempt to regulate Maine small businesses and independent repair shops beyond the scope and intent of existing Maine law.

However, Maine right to repair working group members flagged at least two provisions to be preserved in the final report.

One of those proposed provisions in the report draft directs decision-makers to consider whether the “privacy protections of the Gramm-Leach-Bliley” Act should apply to independent repair facilities. Generally, that 1999-enacted law regulates the banking and insurance industries.

Jack Quirk, founder of New England-based Quirk Auto Group, said the intent for including that language in the draft report was to lay the groundwork for businesses to designate staff who could serve as points of contact if specific data security concerns emerge in the course of customer car repairs.

Groves said he doesn’t understand how that specific law applies to right to repair, but pointed out the language’s apparent underlying theme of consumer data and privacy protection.

“This is certainly not involving banking or insurance company regulation. I'm sure that there are certainly parts of that regulation that talk about privacy, and maybe that's what this comment is going to,” Groves said. “But just saying whether or not that bill should apply to independent repair facilities, I think, puts an undue burden on them and, I think, really is out of bounds.”

The second of those provisions called for the independent entity, generally, to consider what cybersecurity rules should apply to telematics data.

Winkeler said decision-makers should “definitely have their eyes on that.”

Taub expressed support for retaining the underlying themes of cybersecurity and privacy protections in the final report, with revisions.

He called for rephrasing them to reflect “the extent to which privacy protections should be applied to telematics data,” and to draft more general language pertaining to telematics data and privacy protection implications of sharing that data. The language should be written more broadly to not just refer to “independent repair facilities,” Taub indicated.

Circumstances That Allow Data Denial?

Working group members squared off on proposed language in the draft legislation that would ostensibly allow manufacturers to withhold vehicle data in certain cases.

Section 6 of the draft legislation contains the contested language: “Access must include the ability to receive data and send commands to in-vehicle components if needed for purposes of maintenance, diagnostics and repair[,] and that the manufacturer makes available to its authorized repair shops.” The emphasis reflects the latest proposed revisions.

Tesla Director of Service Engineering Brian Boggs said he introduced that language to fill an “accidental loophole” he saw in the prior draft that he said could prevent manufacturers from using “good judgment” to constrain themselves, automotive dealerships and independent repair shops from providing “access to perform inappropriate commands” on vehicles if warranted.

He gave an example of a remote command to unlock a parking brake to underscore his point.

“It does not make sense to be able to release the parking brake when you're remote from a vehicle. That vehicle may be on a hill. It would then roll down that hill,” Boggs said. “By including this clause, it's … still creating the level playing field: It's saying any commands that the vehicle manufacturer makes available to its authorized repair shop, it also needs to make available to independent repair shops.”

Groves expressed concern that manufacturers could use the proposed language to somehow control whether an independent repairer or car owner could have access to data in certain cases.

“My whole premise is that it's entirely inappropriate and unsafe for everything that you can do while physically present at a vehicle to also be allowed when you're remote from the vehicle,” Boggs said.

Certain vehicle data is only appropriate to see when you’re physically at the vehicle vs. being remotely at the car, Boggs added.

“The core distinction is to allow there to be difference with both data and commands when you're local to the vehicle versus when you're remote from the vehicle,” he said.

Maine Right to Repair Coalition Director Tommy Hickey said Maine voters in the November 2023 ballot initiative empowered themselves to dictate how vehicle data is transmitted under right to repair.

“It should be the consumer that decides this,” Hickey said. “A lot of software updates are needed to make full repairs on vehicles these days, and so we don't feel comfortable having the [standard of] whatever the dealer gets, the independent repair shops get. We think it's the consumer that should dictate where that information goes to make a full repair.”

Taub pitched the idea of drafting language to ensure that vehicle data gets transmitted to repairers as long as the data transmission doesn’t pose a safety risk.

Boggs said his concern with that is the state attorney general’s office could get bogged down for years to come in determining the distinction between a safe versus and unsafe command.

“You'll have a variety of experts come in in litigation, all claiming what is possible, what is not possible, what's safe, what's not safe, having this defined litmus test which is used in the all these other sections when we're defining the diagnostic scan tools and when defining what service manuals need to be available and what wiring diagrams need to be available,” Boggs said.

Taub said he and Boggs would work to amend that proposed language and circulate it to working group members before the next meeting.

Calls for Process and Legislative Changes

During the public hearing portion of the meeting, commenters cited the need for definitions to be included in the draft legislation and/or final report.

Both the current legislative and report drafts currently lack definitions for frequently used terms.

Commenting during the public hearing, Democratic state Rep. Tiffany Roberts said the working group should add definitions for terms including “independent repair facility”; “standardized platform”; “telematics”; “diagnostic and repair information”; “vehicle owner,” including in the context of leased vehicles; “owner authorization”; “mobile-based application”; and “reliable and accessible systems.”

Commenting on behalf of the Maine Automobile Dealers Association, Preti Flaherty partner Bruce Gerrity agreed the proposed legislation should add further definitions, including what constitutes an authorized repair shop.

He noted that Section 6 of the draft legislation calls for all parts, tools, software and other components necessary to complete a full repair of a vehicle must be provided to motor vehicle owners and authorized independent repair shops.

Gerrity also raised the question of whether the legislation should correlate the description of an “authorized repair shop” with general privacy protection obligations -- not related to Gramm-Leach-Bliley, but in line with general consumer privacy standards adopted by the Federal Trade Commission and Consumer Financial Protection Bureau.

“You have not provided a definition of what is an authorized repair shop,” Gerrity said. “Should that be a specific list? For example, should there be an inspection capability or licensure? Should there be concerns with disclosures; for example, under the [Maine] Used Car Information Act as to prior use of the vehicle -- inspectability? Should there be provisions that relate to privacy standards?”

The working group anticipates its next meeting will be the week of Jan. 13.

Brian Bradley

Writer
Brian Bradley is a freelance writer based in Bunker Hill, WV. He has written about various industry topics including international trade, tech regulation,... Read More

Shop & Product Showcase

  • Read testimonials from real collision repair shops about the tools and technologies they use to get the job done.