ment” and require that automakers pro- vide professional automotive recyclers with all specific parts data so that the manufacturers’ recalled parts can be correctly identified and removed from the market. ARA emphasized that data on defective parts was not enough because OEM data solely on the current known parts would not take into account those OEM parts that professional auto- motive recyclers sell today that are subject to a recall at some future date. The Association’s comments also noted our concern that in official state- ments made at the October 22nd meet- ing, NHTSA lumped “salvage yards” together with unlicensed, internet sources as places from which consumers are purchasing recycled non-deployed OEM airbags.

ARA agrees and supports NHTSA’s statement that “under no circumstances should a person purchase an air bag off the internet, or from a salvage yard or any other unauthorized source as a replacement to fix a recalled inflator.” ARA strongly noted, however, that pro- fessional automotive recyclers do not support any remarks that call into ques- tion the ability of consumers to legally purchase non-recalled OEM air bags from professional automotive recyclers as replacement air bags. In its comments, ARA urged NHTSA to clarify for the record that the Agency does not oppose the use of non-recalled, non-deployed OEM air bags as replacement air bags. These comments by NHTSA staff were made in response to reports of an under- ground market on the internet for unau- thorized and possibly dangerous replacements for Takata Corp.’s recalled air bags Law enforcement agencies in Miami have described underground net- works stealing inflators – including defec- tive Takata-made versions – for resale and NHTSA Administrator Mark Rose- kind warned consumers that they were jeopardizing their safety by using air bags purchased from the underground market.

ARA noted our concern that in official statements, NHTSA lumped “salvage yards” together with unlicensed, internet sources as places from which consumers are purchasing recycled non-deployed OEM airbags.

Limited Exemptions Granted to Copyright Law Allow Vehicle Owners to Alter Auto Software

he Librarian of Congress and the U.S. Copyright Office recently published a final rule that provides an exemption to provisions of the Digital Millennium Copyright Act (DMCA) for consumers to make copies and alter computer programs installed on the electronic control units (ECUs) of vehicles they own, but falls short of providing an exemption for the inde- pendent repair community.

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The rule concludes that “owners of vehi- cles are adversely impacted as a result of technological protection measures on ECUs” and that reproducing and altering the computer programs on ECUs for pur- poses of facilitating diagnosis, repair and modification of vehicles may constitute a non-infringing activity – allowing copies and changes to the programs." Associations representing independent repair facilities, however, have expressed reservations about the final rule. For instance, the Auto Care Association indi- cated it is very concerned that the rule does not permit shops to circumvent soft- ware on behalf of the car owner. Likewise, the Specialty Equipment Manufacturer Association has always maintained that the right to access vehicle systems to utilize, maintain and upgrade vehicles is legal as fair use under copyright law.

In light of the significant concerns raised by affected Federal agencies, the recom- mended exemption will become operative twelve months from the effective date of the new regulation to provide these and other potentially interested agencies an

opportunity to consider and prepare for the lifting of the DMCA prohibition. Every three years the Librarian and Copyright Office entertain DMCA exemp- tion proposals from the public since the law prohibits “circumventing encryption or access controls to copy modify copy- righted works.”

Stormwater Permit

Litigation Update As reported earlier, six environmental groups (including three Baykeeper organ- izations) have filed legal suit against the Environmental Protection Agency (EPA) in court. Their claims assert that EPA's recently renewed multi-sector general per- mit (MSGP) provides too much flexibility for permitted entities to implement non- numeric effluent limitations, rather than best management practices (bmps). In response to this legal challenge, the FSWA – which is administered by the law firm Barnes & Thornburg – has filed a motion to intervene in the case in order to provide the regulated party perspective as to why the Baykeepers/environmental groups' claims should be denied. As a member of the FSWA and on behalf of ARA members, ARA is contributing to this effort. The Court had directed the parties to the suit to file a motion to govern briefing schedules and that motion was filed on November 4th. As part of the motion there is a discussion about possible mediation of the dispute which would require proceed- ings in which the FSWA will be directly involved. If the mediation does not resolve the litigation then the opening brief of the Baykeepers/environmental groups will not occur until May 2016.

November-December 2015 | Automotive Recycling 71