On Dec. 15, 2014, Aaron Lowe, senior VP, regulatory and government affairs, Auto Care Association, posted a blog entitled “My New Year’s Resolutions for the 114th Congress.” In that blog, he called on Congress to move forward with some of the association’s key legislative and regulatory priorities. It appears now, just five months in, that Congress doesn’t want to disappoint our industry with its usual accomplishment paralysis and instead is taking steps to help us realize one of our hopes – reforming chemical regulation.
The Toxic Substance Control Act (TSCA) has been in place since 1976 without any major overhauls. This has created a problem for industries like auto care who cannot work within an antiquated chemical safety review system that doesn’t keep pace with innovation; but also for states that have grown tired of looking to the Environmental Protection Agency (EPA) for guidance on this issue and getting none. Years ago, those combined pressure points drove U.S. industries, including auto care, to call for a broad modernization of TSCA. Finally, in 2015, that may happen thanks to what may be an unprecedented effort of compromise and bipartisanship from Congress (and of course our association’s efforts).
In the Senate, S. 697, the “Frank R. Lautenberg Chemical Safety for the 21st Century Act” was introduced earlier in the year by Senators David Vitter, R-La., and Tom Udall, D-Utah. It quickly became the legislation that both industry and Senators would rally behind. Over the last few months, the bill had to endure the typical slog of compromises and amendments, but is now generally considered to strike a balance between EPA capabilities, the goals of TSCA modernization for industry, and State control over protecting their residents.
S. 697 was marked up in the Environment and Public Works Committee on April 28. While it does have 40 co-sponsors spanning the far right to the far left, Oregon to Oklahoma, it won’t go any further unless it has the 60 votes that is understood to be the quid-pro-quo to getting on the Senate floor for final consideration.
While the push for 60 marches on in the Senate, the House is also doing their part to make one of our resolutions come true. By the time you read this blog, the House Energy and Commerce Committee Subcommittee on Environment and the Economy will have marked-up their draft bill, the “TSCA Modernization Act of 2015.” The House’s approach is different from the Senate in that they chose to modify existing law with a scalpel, going after just a few sections of existing law, instead of a total overhaul. However, like the Senate, the strategy of bipartisanship and compromise is being utilized in the House to move the issue forward.
The House draft, however, does have one critical section for the auto care industry that the Senate bill does not – an exemption for replacement parts. According to the bill as proposed by the subcommittee, as long as those replacement parts were designed prior to a rule on a certain product and chemical risk being published in the Federal Register, and they do not “contribute significantly” to the risk the EPA has identified, they are exempted from new safety regulations. And the auto care industry can thank the Alliance for Automobile Manufacturers for securing that language in the bill.
The next steps in the House for our association will be both to ensure the replacement parts exemption remains in the bill after a full Energy and Commerce Committee mark-up and to get it to the floor for a full vote. The Committee has a fairly aggressive timeline, wanting to complete their part by June 14, which will put a vote on track for some time in July.
So, if the Senate passes S. 697 in July, and the House passes their draft in July, Congress may be able to say they accomplished more than just getting re-elected this year. They may actually pass real, transformative legislation that moves our auto care industry, as well as other industries, into an era of chemical safety regulations that more closely match the speed of our consumer product innovations.
While it’s not a done deal until the “fat lady sings,” the association is obviously pleased with the progress Congress has made on one of our New Year’s resolutions. However, there is four more that need action if Congress really wants to make us happy next New Year’s (hint, hint)!
You may be following a story that has gone viral recently that centers around claims by the vehicle manufacturers that car owners should be prevented from working on their own vehicle. The issue in question arose when the Electronic Frontier Foundation (EFF) requested that the Copyright office approve a proposed exemption for the diagnosis and repair of motor vehicles from the Digital Millennium Copyright Act’s (DMCA) prohibition against circumvention of technological protection measures that control access to copyrighted works. According to their website, EFF “champions user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development.”
It’s interesting that EFF’s exemption request probably would have received little attention, but for opposition comments filed by General Motors (GM) and the Alliance of Automobile Manufacturers. As part of their comments, GM and the Alliance make the case that the car companies own the software on the vehicle and that it is licensed to the car owner. Therefore, any attempt by the car owner to circumvent the software on the car would be considered a violation of the car companies’ copyright. They also make the case that car owners working on their car could endanger the safety of the vehicle and cause the vehicle emissions system to operate out of compliance. The manufacturers state that the exemption is not necessary, pointing to the Memorandum of Understanding (MOU) signed by the Auto Care Association and Coalition for Auto Repair Equality with the car makers that says that manufacturers will make available all of the information that is necessary to repair a vehicle.
Yes, the MOU was intended to ensure that information is available to car owners and shops so that vehicles can be repaired. However, the entire concept behind Right to Repair and the MOU is that the car owner owns the vehicle when they purchase it; and that those same car owners should have the freedom to have that vehicle repaired by whomever they want, including themselves. In fact, one of the hallmarks of Americans’ love affairs with their car is the freedom that it provides, whether it is taking the car on a road trip or being able to work on it in their garage. This concept of ownership goes beyond just what repair information the car companies place on their website -- it is ownership of the entire vehicle.
There is no doubt that technology has changed how vehicles are repaired. Cars are run by computers, and therefore repairing or customizing a vehicle entails changes to the software that control the vehicle systems. However, should the computerization of vehicles change how car owners view their vehicle? We don’t think so. Clearly, car owners should not be encouraged to tamper with their vehicle’s emissions or safety systems (there are laws in place to ensure the integrity of the emissions system), but sometimes innovation that comes from outside the vehicle manufacturer can lead to better safety, improved performance and reduced pollution.
Further, technologies such as telematics systems and new entertainment features provide more opportunities for car owners to customize their driving experience. There is little doubt that the connected car will further enhance a driver’s connection with their car, unless of course the manufacturers determine to stifle innovation through their drive for profits.
The Auto Care Association feels strongly that when a consumer buys a vehicle, they purchase everything -- the body, seats, engine and yes, the software on that vehicle as well. Anything less is not in the best interest of the automotive industry or the U.S. car owner.
You can find a copy of the joint comments filed with the U.S. Copyright Office by the Auto Care Association and Automotive Parts Rebuilders Association here