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U.S. Sens. Elizabeth Warren and Edward Markey, who both represent Massachusetts, on June 15 sent a letter to federal officials asking for an explanation of the letter sent earlier the same week to automakers, telling them not to comply with the state’s recently enacted Right to Repair law.

The letter was addressed to U.S. Transportation Sec. Pete Buttigieg and National Highway Traffic Association (NHTSA) Deputy Administrator Sophie Schulman.

Massachsuetts' Right to Repair law requires automakers to allow access to their vehicles' data, so owners can get them fixed by independent repairers if they choose, rather than be forced to go to dealership service centers. It was first approved by Massachusetts voters in 2020, but delayed for years by a lawsuit brought by the Alliance for Automotive Innovation, a trade group representing automakers.

Finally, in March, Massachusetts Attorney General Andrea Joy Campbell announced she would begin enforcing the law June 1, despite the lack of a decision in the federal lawsuit. A last-minute motion to block the enforcement by the Alliance for Automotive Innovation was denied.

In its letter dated June 13, the NHTSA told 22 automakers not to comply, citing "significant safety concerns."

The letter from the NHTSA claimed the Massachusetts law is in conflict with and is therefore preempted by the Safety Act, which requires automakers to initiate a recall of vehicles that contain a safety defect---which, according to the NHTSA, includes the open remote access to vehicle telematics required by the state law.

"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, as well as equipment required by Federal Motor Vehicle Safety Standards such as air bags and electronic stability control," the NHTSA said. "A malicious actor here or abroad could utilize such open access to remotely command vehicles to operate dangerously, including attacking multiple vehicles concurrently.

"Vehicle crashes, injuries or deaths are foreseeable outcomes of such a situation," the NHTSA said.

In their own letter dated June 15, Warren and Markey said “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.

“We are asking NHTSA to explain its rationale for its harmful actions and respect Massachusetts state law by reversing course,” the senators continued.

The letter pointed out that NHTSA had “ample opportunity” before the law took effect June 1 to raise preemption arguments through the judicial process, and even declined multiple requests from the judge to participate.

“Instead, NHTSA sent the June 13 letter with no warning, circumventing the legal process, contradicting a judicial order, undermining Massachusetts voters, harming competition and hurting consumers, and causing unnecessary confusion by raising this novel view two weeks after enforcement of the law began,” the senators wrote.

The senators said NHTSA’s position goes against the Biden administration’s policy to combat monopolies in repair markets.

NHTSA’s letter to automakers relies on the same argument used by the automakers themselves, the senators said: “an irresolvable conflict between maintaining data security and providing independent repair shops with the data they need to conduct repairs. 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.”

The senators said those safety concerns had already been addressed in a U.S. district court, which concluded they did not override Massachusetts’s right to enforce the law.

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