VOL. 6 | NO. 04
Is your dealership struggling with … • Absenteeism and turnover of your teams? • Lower productivity than the standard? • Poor morale, leading to less-than-desirable customer service? • Spending money to hire new employees only to have them leave? TM Discover how the Emerging Leaders Business ForumTM can save you money and grow your A-team from within. CALL BILL TODAY! Bill Napolitano 774-254-0383 bill@resultsimproved.com resultsimproved.com The forum offers a unique roundtable setting and educational component to help middle managers — such as Sales, Parts and Service managers — grow in their current and future roles. OUR EMERGING LEADERS BUSINESS FORUMTM CAN HELP! NEW PROGRAM!
VOL. 6 • NO. 04 PRESIDENT Dan Bennett, REM, IOM, CAE NHADA OFFICERS Marshall Jespersen, Chairman Jim Boyle, Vice Chairman Jeff Platek, Treasurer Shawn Hanlon, Secretary NHADA DIRECTORS John Sawyer Jr., Immediate Past Chair Michael Lampert, Franchised Heavy Duty Truck John Crowley, Franchised New Car Tim Foss, Franchised New Car Jason LaCroix, Franchised New Car Dennis Gaudet, Independent Used Car Ron Poirier, Independent Repair/Service David Hammer, NADA Director George Mullin, Franchised/Independent Jessica Trask, Franchised New Car Roger Groux, Advisory Director Mike Petell, Franchised/Motorcycle ©2024 New Hampshire Automobile Dealers Association (NHADA) | The newsLINK Group LLC. All rights reserved. Drive New Hampshire is published six times each year by The newsLINK Group LLC for the NHADA and is the official publication for this association. The information contained in this publication is intended to provide general information for review, consideration and education. The contents do not constitute legal advice and should not be relied on as such. If you need legal advice or assistance, it is strongly recommended that you contact an attorney as to your circumstances. The statements and opinions expressed in this publication are those of the individual authors and do not necessarily represent the views of the NHADA, its board of directors, or the publisher. Likewise, the appearance of advertisements within this publication does not constitute an endorsement or recommendation of any product or service advertised. Drive New Hampshire is a collective work, and as such, some articles are submitted by authors who are independent of NHADA. While Drive New Hampshire encourages a first-print policy, in cases where this is not possible, every effort has been made to comply with any known reprint guidelines or restrictions. Content may not be reproduced or reprinted without prior written permission. For further information, please contact the publisher at (855) 747-4003. 4 A Message From the President The 2024 Legislative Session Unpacking This Session’s Rollercoaster of Drama, Twists and Turns By Dan Bennett, REM, IOM, CAE, President, NHADA 6 A Message From the Chair The 2024-2025 Economic Impact Survey is Open By Marshall Jespersen, ICL Autos, Chairman, NHADA 8 NADA Update Our Commitment to Environmental Protection and Energy Efficiency A Balanced Approach By David Hammer, Contemporary Automotive, Director, NADA 12 Legal and Regulatory Considerations for Auto Dealers in the Wake of a Vendor Security Incident By Brad Miller, Chief Compliance/ Regulatory Officer, ComplyAuto, NHADA Diamond Partner 15 NHADA Loss Prevention Launches Hazard Communication Training Complying with OSHA’s Updated HazCom Standard By Brian Duplessis, Loss Prevention Supervisor, NHADA 16 Welcome, New Board Members! 16 The Annual Drive for a Tech Golf Tournament 17 Improving Employee Benefits To Attract and Retain Talent By Lori Preve, Licensed Insurance Producer, NHADA 18 Unpacking the 2024 “Family Reunion” Convention By Kaleena Guzman, Major Events & Association Partnership Program Director, NHADA 20 NHADA and the New Hampshire Department of Safety Address Roadway Safety 22 Second Injury Fund By Deb Handrahan, WCT Claims Supervisor, and Heather Overson, Claims Representative, NHADA 23 The Future Is Bright for NH’s Automotive Workforce By Adam Memmolo, Workforce Development Coordinator, NHADA 24 The 2nd Annual Ford ACE Competition Is in the Books Thank You, NH Ford ACE By Erin Powers, East Market Area Coordinator, Ford Customer Service Division 26 Big Impact Community Economic Development Capacity Building Program By Maureen Quinn, Tax Credit Program Manager, CDFA 28 NH Driver Ed. Fund: Making Driver Education More Accessible In New Hampshire Fund Stakeholders Set $100k Fundraising Goal to Assist Those Needing Financial Aid for Driver Ed Programs in NH 29 NHADA Partners With Armatus Dealer Uplift as Its Exclusive Warranty Uplift Service Provider 30 LotDrop The 2024 Summer Collection 32 NHADA Membership Milestones Q3: July 1, 2024-Sept. 30, 2024 32 NHADA New Members 33 By the Numbers 34 Thank You, 2024 NHADA Partners! CONTENTS 3
THE OUTCOME Although NHADA lost in the house, we delivered concrete arguments to the Senate Transportation Committee (listed below), who recommended and voted that both bills are to be sent to interim study. Senate Transportation Committee Committee Chair: • Sen. Ricciardi, Denise (R-NH-09) Members: • Sen. Ward, Ruth (R-NH-08) • Sen. Gendreau, Carrie (R-NH-01) • Sen. Watters, David (D-NH-04) • Sen. Fenton, Donovan (D-NH-10) Though this was a favorable outcome for NHADA, it was not earned easily. House supporters of the bill were unhappy with the Senate action, and in the same week, they chose to tack the bills onto Senate-favored legislation that was in their possession. They took this same approach one week later with another bill. Their efforts to weaken the inspection program were tireless. Through all of the back-and-forth, NHADA successfully defeated both attacks at the inspection program. This victory followed a grassroots campaign carried out by our members, resulting in 812 letters sent to members of the Senate. They heard you loud and clear! To learn more about each bill and NHADA’s position, please scan the following QR codes. HB 1391 Bill https://www.gencourt.state.nh.us/lsr_search/ billText.aspx?id=1583&type=4 HB 1391 Fact Sheet https://4829685.fs1.hubspotusercontent-na1.net/ hubfs/4829685/HB%201391%20Fact%20 Sheet%20-%20May2024.pdf A MESSAGE FROM THE PRESIDENT THE 2024 LEGISLATIVE SESSION Unpacking This Session’s Rollercoaster of Drama, Twists and Turns BY DAN BENNETT, REM, IOM, CAE PRESIDENT, NHADA This year, NHADA had a successful session, but it wasn’t without its share of twists and turns, culminating in a down-to-the-wire finish in early June as the session closed. PROTECTING THE VEHICLE SAFETY INSPECTION PROGRAM Like many previous years, our top priority was defending the integrity of our Vehicle Safety Inspection Program. This year’s major legislative attempts were HB 1391, led by sponsor Rep. Matt Coker (D-Meredith) and HB 1637 Rep. Leah Cushman (R-Weare). These efforts were a sign to see who NHADA’s friends and supporters are. As you know, we support those that support us. Note: A Nay vote is in support of NHADA. To see a full breakdown of how legislators voted, please scan the QR code below. HB 1391 Roll Call https://www.gencourt.state.nh.us/bill_status/ billinfo.aspx?id=1583&inflect=2 4
HB 391 Infographic https://4829685.fs1.hubspotusercontent-na1.net/ hubfs/4829685/HB1391_Infographic.jpg HB 1637 Bill https://www.gencourt.state.nh.us/lsr_search/ billText.aspx?id=1875&type=4 OTHER LEGISLATIVE PRIORITIES While protecting the inspection program was paramount, we also followed and worked on many other bills: SB 325 Sen. Fenton, Donovan (D-Keene): This pro‑NHADA bill proposed a study committee for collision repairers and the licensing of insurance appraisers and photo estimating software. While we were successful in the Senate Commerce Committee and the Senate, the House decided to kill this well-intended piece of legislation. SB 515 Rep. Moffett, Michael (R-Loudon): NHADA also worked on this bill, related to consumer guarantee contracts, with the Insurance Department and Banking Department following their multiple years’ worth of efforts to update their laws. This bill specifically dealt with the modernization of the retail installment sales contract statute. SB 510 Sen. Fenton, Donovan (D-Keene): Another effort led by NHADA and championed by Sen. Donovan Fenton was to allow New Hampshire dealers to issue temporary plates to Massachusetts customers. While this bill was caught up in some political back and forth at the end of the session, it ultimately passed and is awaiting the governor’s signature. When the bill finally becomes law, NHADA will provide more information and customer acknowledgment forms specifically tailored toward those instances. HB 1562 Rep. Matt Coker (D-Meredith): Lastly, a unique effort for NHADA this year was partnering with our friends at the NH Marine Trades Association on a bill related to personal watercraft. Following this collaborative effort where both associations packed Representatives Hall at the State House, the legislation was killed. This outcome saved motorists throughout the state from diminished lake access and was favorable for all parties involved, including NHADA Powersports members. THANK YOU, THANK YOU, THANK YOU! On multiple occasions this session, we called on our members for outreach, part of which included attending and testifying at State House hearings. Thank you for those who participated and gave their time up for the betterment of the industry. NHADA also thanks our contract lobbying team from Dennehy & Bouley, Jim and Jackson Bouley. Their expertise and insight into the legislative process and landscape is invaluable. Thanks again to our Senators and Representatives who support NHADA. It’s important to remember that all politics is local, and NHADA on behalf of the motor vehicle industry, supports those that support us. Please contact me directly at (603) 224-2369 or dbennett@nhada.com for questions on NHADA’s legislative involvement. Again, thank you for your support. 5
THE 2024-2025 ECONOMIC IMPACT SURVEY IS OPEN A MESSAGE FROM THE CHAIR The motor vehicle industry locally and nationwide is facing new challenges as new laws and regulations promote a more digitized and electrified future. There are some policy makers who don’t see the value of local motor vehicle businesses. Some even wonder why vehicle safety inspections are necessary or why they can’t order a car online. While the NHADA community knows that “local matters,” our legislators need to be reminded that the contributions of our members are absolutely critical to the functioning of the economy of the State of New Hampshire. Our state legislators must be made aware of our industries’ critical role in the health and success of the economic life of New Hampshire. When legislators propose new laws to further regulate businesses, they need to be made aware of the potential impacts these laws would have on the health of our economy and the safety of our citizens. BY MARSHALL JESPERSEN ICL AUTOS, CHAIRMAN, NHADA To participate in the study, please scan the QR Code or visit nhada.com/impact and use password impactstudy2024. If you have any questions on this matter, please contact support@nhada.com or (603) 224-2369. HOW YOU CAN HELP We urge you to participate in the economic impact survey. Please note, this survey does not apply to our Partners and Associate Members. BEFORE YOU BEGIN • You may provide the name of your business to be excluded from future survey outreach. • All responses are strictly confidential. • This survey asks questions relating to sales, payroll, taxes, expenses and charitable contributions. Please forward this email to the correct contact person at your dealership. • The economic impact report is being conducted by Auto Outlook, which performs similar work for dealer trade associations all over the country. The compiled results will be shared later this year. WHAT WE ARE DOING WITH THE DATA Like other automotive trade associations, we will assemble a visual economic impact report to be used in our legislative advocacy efforts. 6
A Better Core in 2024 DominionDMS.com (866) 928-3210 1515 South Federal Highway, Suite 406 Boca Raton, FL 33432, USA SCHEDULE YOUR DEMO Discover how VUE By Dominion DMS gives your dealership: Hearing the cries of the automotive community, we developed a brand new cloud core DMS, called VUE. This software is flexible, efficient and innovative. Schedule a demo and upgrade to a Better Core in 2024. EFFICIENCY INNOVATION FLEXIBILITY SAVINGS Personalization, Engagement, and Speed – the holy trinity of an amazing customer experience. Being a cloud-core DMS and using agile development methodologies means that we can keep dishing out top-notch solutions for our dealers and partners. Dominion DMS is easy to learn and simple to use. You have easy access from any web connection and you get to choose the apps you want and need to drive your success. Behold, VUE! Waving a magic wand to make DMS core fees vanish into thin air. Franchise dealerships can now save while still enjoying our best in class accounting, parts, sales, and service modules.
NADA UPDATE OUR COMMITMENT TO ENVIRONMENTAL PROTECTION AND ENERGY EFFICIENCY Franchised dealerships across the country are committed to environmental protection and energy efficiency. NADA and ATD support dealers in their efforts and advocate for balanced environmental legislation and regulation. GREEN DEALERSHIPS Reduce energy usage and find resources to improve dealerships’ environmental footprint. In the spirit of a commitment to environmental stewardship, dealers are making continuous improvements to increase the energy efficiency of their facilities. These investments include targeted reductions of electricity used for lighting, heating/cooling and machinery. FUEL ECONOMY NADA and ATD support a balanced approach to fuel economy. NADA and ATD support enhanced data‑driven fuel economy and emissions regulations that embrace marketplace realities and amplify fleet turnover. Flexible standards that reinforce natural customer preferences for newer vehicles over used vehicles and that don’t price customers out of the new-vehicle market are key to ensuring that newer, more fuel‑efficient vehicles are on America’s roads today. COMPLIANCE Support dealers in complying with environmental-related regulations. See the FAQ on EPA Standards (Model Years 2027‑2032) following this article. NADA and ATD support dealerships nationwide to comply with federal regulations related to energy and the environment, such as hazardous waste disposal and body shop air emissions. A Balanced Approach BY DAVID HAMMER CONTEMPORARY AUTOMOTIVE, DIRECTOR, NADA 8
1 FAQ on EPA Multi-Pollutant Emissions Standards for Model Years 2027 and Later Light-Duty and Medium-Duty Vehicles (“GHG Rule”) FAQ on EPA Multi-Pollutant Emissions Standards for Model Years 2027 and Later Light-Duty and Medium-Duty Vehicles (“GHG Rule”) Q 1. What is the new EPA Rule? A The Environmental Protection Agency (EPA) has finalized regulations targeting carbon dioxide emissions from light and medium-duty vehicle fleets. Starting with the 2027 model year through the 2032 model year, these regulations mandate that manufacturers adhere to progressively stricter emissions limits. Q 2. What does the new rule require? A Under this rule, every manufacturer’s fleet (measured by delivery to dealers) must meet increasingly stringent emissions standards each year. To comply, manufacturers can reduce emissions directly through increased sales of battery electric vehicles (BEVs), plug-in hybrid electric vehicles (PHEVs), and more efficient internal combustion engine (ICE) vehicles. Additionally, adopting eco-friendly refrigerants, enhancing aerodynamics, and optimizing air conditioning systems can contribute to compliance. Q 3. Does this rule regulate what dealers can sell? A While the rule does not explicitly dictate the inventory dealerships can maintain, it significantly influences it. As OEMs evolve their fleets to comply, gradually favoring BEVs and PHEVs over ICE vehicles, this will impact the availability of certain vehicles to dealerships. Q 4. What does this mean for EV sales? A The final rule allows for compliance using a variety of mixes of BEVs, PHEVs, and ICE vehicles. The EPA provided the following compliance pathways. In the pathway where PHEV sales are maximized, new vehicle BEV sales will have to rise from 7.3% for MY2023 to 24% in MY 2027. Table 3: Projected new vehicle technology penetrations for final Light-duty vehicle GHG standards for varying scenarios Technology 2027 2028 2029 2030 2031 2032 Pathway A Higher BEV Pathway (central analysis case) ICE 64% 58% 49% 43% 35% 29% HEV 4% 5% 5% 4% 3% 3% PHEV 6% 6% 8% 9% 11% 13% BEV 26% 31% 39% 44% 51% 56% Pathway B Moderate HEV and PHEV Pathway ICE 62% 56% 49% 39% 28% 21% HEV 4% 4% 3% 6% 7% 6% PHEV 10% 12% 15% 18% 24% 29% BEV 24% 29% 33% 37% 41% 43% Pathway C Higher HEV and PHEV Pathway ICE 61% 41% 35% 27% 19% 17% HEV 4% 15% 13% 16% 15% 13% PHEV 10% 17% 22% 27% 32% 36% BEV 24% 26% 30% 31% 34% 35% 9
2 FAQ on EPA Multi-Pollutant Emissions Standards for Model Years 2027 and Later Light-Duty and Medium-Duty Vehicles (“GHG Rule”) Q 5. How does the final rule compare to the proposed rule? A The final rule is a significant improvement over the proposed rule for model years 2027 to 2030. The final rule introduces a more lenient approach for model years 2027 to 2030, reducing the CO2 emissions targets by 25% to 32% compared to the original proposal. MY2031 and 2032, however, will require CO2 emissions, and the corresponding vehicle mix, to be very similar to the aggressive standards in the proposed rule. The improvement is a result of two changes: (1) the required Co2 emissions allowance was greatly increased for MY2027 to 2030, and (2) flexibilities that were proposed to be phased out immediately are now phased out over the life of the rule. Q 6. What happens if manufacturers do not comply with the regulations? A Manufacturers that fail to meet the rule’s emissions standards will not face “fines” (but could be subject to civil penalties). However, they are required to ensure their fleet’s compliance retrospectively, potentially necessitating an increased production of BEVs in future years to offset any discrepancies. As a practical matter, the OEMs will produce and deliver vehicles in line with the regulations. Q 7. How is the EPA rule different than CARB’s ZEV mandates? A The California Air Resources Board (CARB) has implemented its Advanced Clean Car II (ACCII) program, spanning model years 2026 to 2035, demanding a more aggressive shift towards Zero Emission Vehicles (ZEVs). While there is overlap in the objectives of both regulations, CARB’s mandates are more stringent, necessitating a larger proportion of EV sales annually compared to the EPA’s standards. For reference, PHEV sales historically have been about 25% of BEV sales. This table is based on EPA’s Pathway A: 2027 2028 2029 2030 2031 2032 EPA ICE+HEV 68% 63% 54% 47% 38% 32% PHEV 6% 6% 8% 9% 11% 13% BEV 26% 31% 39% 44% 51% 56% CARB ICE+HEV 57% 49% 41% 32% 24% 18% PHEV 9% 10% 12% 14% 15% 16% BEV 34% 41% 47% 54% 61% 66% So far, 11 states have explicitly adopted CARBs ACCII regulation under § 177 of the Clean Air Act—though 6 of the states will begin requirements in 2027 as opposed to 2026. (2026: MA, NY, OR, VT, and WA; 2027: CO, NJ, MD, DE, RI, NM). As seen in the graph1 below, many CARB states are nowhere near the new car sales required by ACCII for MY2026/2027. 1. Alliance for Automotive Innovation Comments on ACCII Waiver (https://www.regulations.gov/comment/EPA-HQ-OAR-2023-0292-0182). 10
3 FAQ on EPA Multi-Pollutant Emissions Standards for Model Years 2027 and Later Light-Duty and Medium-Duty Vehicles (“GHG Rule”) WHAT DID DEALERSHIP TRANSACTIONS IN GREATER NEW ENGLAND LOOK LIKE IN 2023? The Phillips Report is the only publication that specifically speaks to auto dealership transaction values, trends and trajectories in the New England and New York market areas. DOWNLOAD THE 2023 YEAR END REPORT WWW.NANCYPHILLIPS.COM 11
LEGAL AND REGULATORY CONSIDERATIONS FOR AUTO DEALERS IN THE WAKE OF A VENDOR SECURITY INCIDENT BY BRAD MILLER CHIEF COMPLIANCE/REGULATORY OFFICER, COMPLYAUTO, NHADA DIAMOND PARTNER The recent widely publicized security incident at CDK has brought breach response issues to the front of dealers’ minds. (The most recent press accounts suggest that the incident may involve ransomware.) As we know, dealers rely heavily on third-party vendors for various services, from customer relationship management systems to financial processing. When a vendor experiences a security incident, it can obviously have far-reaching operational implications for the dealerships they serve. But it also raises important legal and regulatory issues for dealers as well. This article outlines key legal and regulatory considerations auto dealers should consider in the immediate aftermath of such an incident. INCIDENT ASSESSMENT The first step is to assess the scope and potential impact of the vendor’s security incident. This can be difficult, especially in the first hours and days after the event. Even for systems a business fully controls, this is a complicated and difficult process — and those difficulties are magnified when the incident occurs at a third-party service provider that you do not fully control. Unfortunately, that reality does not relieve dealers from potential time-sensitive obligations, nor does it necessarily provide any additional time to meet those obligations. Dealers are responsible for their data — even when it is processed elsewhere and/or by a service provider. Dealers are the regulated entity — the data “controller;” the “financial institution;” the data “owner” — under relevant federal and state law, and they need to take action to ensure that they are meeting their obligations. In the event of a cybersecurity incident that could impact dealer data, dealers should, at a minimum: • Request a detailed incident report from the vendor. • Seek to determine what dealership data may have been compromised. • Evaluate potential risks to customers, employees and business operations. While the dealer may not be able to obtain a detailed incident report right away (indeed, one may not even be available), it is important that they ask and that they do so as soon as practicable. As outlined below, state and federal notice obligations are all time-sensitive, and while a dealer should not be expected to obtain answers to questions if they are not yet available, they cannot do nothing. Making this formal request (and documenting it) is a good starting point. POTENTIAL NOTICE OBLIGATIONS Asking for incident information is step one, but what happens if you do learn that dealership customer information may have been involved? Depending on the nature of what you learn, this may trigger several critical legal obligations, including potential notice responsibilities. Dealers may have legal obligations to notify: • Affected individuals (customers and employees) under state breach notification laws. • Regulatory bodies. » State attorneys general (or other state agency) under state law. » The Federal Trade Commission under federal law. • Law enforcement agencies. For each of these scenarios, timely notification is critical. For example, the recently enacted Safeguards Rule reporting requirement requires that dealers notify the FTC “as soon as possible and no later than 30 days” after discovery of a “notification event.” A notification event is the unauthorized acquisition of unencrypted customer information of 500 or more consumers. 12
Importantly, the FTC has indicated that dealers (as the regulated entities under the Rule) are still responsible for ensuring that the FTC is appropriately notified — even if the event occurred at a service provider. A key consideration here is “discovery,” and the FTC provides little clear guidance on when exactly discovery takes place. In the context of a publicly revealed event at a service provider, when does discovery occur so that the “clock” starts ticking? It’s far from clear, but in its commentary, the Commission seems to distinguish discovery of an incident and a determination that the incident involved 500 or more consumers. The FTC states that it “expects that companies will be able to decide quickly whether a notification event has occurred by determining whether unencrypted customer information has been acquired and, if so, how many consumers are affected, so there will not be a significant difference between ‘determination’ [of whether a notification event has occurred] and ‘discovery’ [of the incident].” What does that mean in the context of the June 2024 CDK incident? Again, this is far from clear, but it does suggest that “discovery” may occur when an incident is first “discovered” — even if, at that time, you have not determined that consumer information was involved. Again, this supports the argument that dealers should be reaching out now to CDK to determine whether any of their customer information was involved in the incident. It is also important to note that the new FTC reporting requirement puts the burden of proof on the dealer. It states that “[u]nauthorized acquisition will be presumed to include unauthorized access to unencrypted customer information unless you have reliable evidence showing that there has not been, or could not reasonably have been, unauthorized acquisition of such information.” So there is an open question about what level of proof dealers will need from CDK (or any other vendor) to meet this “reliable evidence” standard, but it is clear that some evidence will be required. State Law Notification Requirements In contrast to federal law, all 50 states, the District of Columbia, Puerto Rico and the U.S. Virgin Islands have enacted breach notification laws. Unlike the federal law, which requires notice to the FTC, these laws generally require businesses to notify affected individuals when their personal information has been compromised. These notice requirements are tied to the residency of individual consumers. Therefore, compliance with these obligations requires an analysis of the specific customers whose information has been breached. Timing Many states require notification “as expeditiously as possible and without unreasonable delay,” with others including an outer time limit such as “no later than 30 [45, 60] days.” The state laws vary in determining when these time periods start. They also differ from the Safeguards Rule in terms of the type of information that they cover (generally tied to SSNs, credit card numbers, account numbers, etc.) State notifications typically must include a description of the incident, types of information compromised and steps individuals can take to protect themselves. Most states allow written notice, with some permitting electronic notification under certain circumstances. Many states require notification to the state attorney general or other state regulatory bodies if the breach affects a certain number of residents. It’s crucial to note that requirements can vary significantly between states. For instance: • California’s law applies to a broader range of data types than many other states. • Some states, like Massachusetts, require specific security measures in addition to notification. • New York’s SHIELD Act expanded the definition of private information and broadened the scope of businesses subject to its requirements. Given these variations, auto dealers operating across multiple states must be prepared to comply with a patchwork of requirements. OTHER IMPORTANT STEPS DEALERS MAY CONSIDER Dealers should review their current vendor contracts to understand: • The vendor’s contractual obligations regarding data security and breach notification. • Indemnification clauses and liability limitations. • Requirements for the vendor’s incident response and cooperation. • Requirements for the vendor to cooperate with and produce information to the dealer about actual or suspected breaches. If these provisions are not currently available, dealers should work with their attorneys to add adequate language in all relevant agreements. Insurance Issues Dealers whose business operations are interrupted may also want to evaluate whether they have business interruption coverage under any of their insurance policies that may provide coverage for losses sustained due to a breach. Such 13
coverage might exist under property/casualty and/or cyber insurance policies. CUSTOMER RELATIONS AND REPUTATION MANAGEMENT While not strictly a legal consideration, maintaining customer trust is crucial. Dealers should: • Develop a clear communication strategy for affected customers. • Consider whether they will offer appropriate remediation services (e.g., credit monitoring). » A number of state breach notification laws may require this to be offered with the notice. • Be prepared to address customer concerns and potential complaints. REGULATORY INVESTIGATIONS, ENFORCEMENT AND LITIGATION RISK Dealers and their counsel should also be prepared for potential state or federal regulatory investigations. Remember that the stated purpose for the FTC Safeguards notification requirement is to assist the Commission in enforcing the Safeguards Rule against financial institutions that report. In other words, you have to tell the FTC there was an issue so that they can enforce the Rule against you. Dealers, working with counsel, should maintain thorough documentation of the incident response process and all communications with the vendor, affected individuals and regulatory bodies. Dealers should consider consulting with their attorney in the early phases of determining whether a breach has occurred and determining an appropriate response due to the complex legal issues implicated. Dealers and their counsel need to plan early in the process to take steps to protect the attorney-client privilege in the course of their investigation and response. Of course, there will be a heightened risk of potential litigation related to the incident, which makes this documentation and privilege protection even more critical. ONGOING COMPLIANCE AND SECURITY ENHANCEMENTS In the aftermath of an incident, dealers should: • Reassess their vendor management practices. • Enhance internal security measures. • Update incident response plans. • Consider cybersecurity insurance options. Remember that in addition to the new notice requirements, the FTC Safeguards Rule requires financial institutions to develop and implement an incident response plan (IRP). In the event of a vendor security incident, following this plan is crucial. In addition, dealers should consider updating their IRP after an incident to reflect lessons learned from the incident. Lessons Learned? What should all dealers (including non-CDK dealers) learn in the context of this incident? Preparation is key. In addition to reviewing and updating contracts, dealers should work now to ensure that their incident response plan is updated and effective. Dealers should also consider establishing a business continuity plan that could be put into place in the event of a future cyber incident to ensure the ability to continue operations in as uninterrupted a manner as possible. Dealers should also take the time to double down on their efforts to fully comply with the Safeguards Rule, including oversight of service providers. While dealers often cannot control what happens at a vendor, they can (and are required to) conduct due diligence in selecting vendors, ensure that their contracts are compliant and that they are taking steps to ensure that vendors are taking required cybersecurity steps under the Safeguards Rule as well as under many state laws. It’s important to note that while having a plan is crucial, its effectiveness lies in regular testing, updating and employee familiarity with the procedures. Auto dealers should conduct periodic tabletop exercises or simulations to ensure their incident response and business continuity plans remain practical and effective. UPCOMING INFORMATIVE WEBINAR August 14 at 11 a.m. EST All in Compliance: Mastering New Regs and Legal Challenges in 2024 ComplyAuto will share important cookie consent and online privacy policy updates, the recent FTC Safeguards Amendment and Data Breach Reporting Requirements, as well as an update on the FTC “CARS Rule.” Register at nhada.com/training. Sources 1. This memorandum was drafted on June 21, 2024, at the time it was drafted the CDK “cybersecurity incident” was publicly revealed, but no details about the event have been shared publicly that would allow dealers to determine whether any of their customer data was affected by the incident. 2. See https://www.autonews.com/retail/cdk-global-cyberattack-hackerswant-millions-end-outage; and https://www.bloomberg.com/news/ articles/2024-06-21/cdk-hackers-want-millions-in-ransom-to-end-cardealership-outage?srnd=homepage-americas. 3. Including instances where encrypted information is accessed along with the encryption key. 4. 88 Fed. Reg. 77502 (2023). 5. 16 CFR § 314.2(m). 6. The ComplyAuto Safeguards Rule template Information Security Program materials include a sample customer notification letter. However, these letters could have legal significance and should be reviewed by legal counsel. 7. ComplyAuto has developed a Breach Notifications Analysis Tool that will guide dealers (and their counsel) through these difficult distinctions and decisions. 14
Complying with OSHA’s Updated HazCom Standard BY BRIAN DUPLESSIS LOSS PREVENTION SUPERVISOR, NHADA NHADA LOSS PREVENTION LAUNCHES HAZARD COMMUNICATION TRAINING OSHA has issued a final rule that updates the Hazard Communication Standard (HCS) to align primarily with the seventh revision of the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The final rule was published on May 20, 2024, and took effect on July 19, 2024. HAZARD COMMUNICATION STANDARD In order to ensure chemical safety in the workplace, information about the identities and hazards of the chemicals must be available and understandable to workers. OSHA’s HCS requires the development and dissemination of such information: • Chemical manufacturers and importers are required to evaluate the hazards of the chemicals they produce or import, and prepare labels and safety data sheets to convey the hazard information to their downstream customers. • All employers with hazardous chemicals in their workplaces must have labels and safety data sheets for their exposed workers and train them to handle the chemicals appropriately. MAJOR CHANGES TO THE HAZARD COMMUNICATION STANDARD • Hazard Classification: Provides specific criteria for classification of health and physical hazards, as well as classification of mixtures. • Labels: Chemical manufacturers and importers will be required to provide a label that includes a harmonized signal word, pictogram and hazard statement for each hazard class and category. Precautionary statements must also be provided. • Safety Data Sheets: Will now have a specified 16-section format. • Information and Training: Employers are required to train workers on the new label’s elements and safety data sheets format to facilitate recognition and understanding. To assist in complying with the new regulation, NHADA has launched a new online training for members to train their employees. Upon completion, trainees will gain a clear understanding on the updated safety standard, including the new labels and safety data sheets. Developed in-house, NHADA Loss Prevention strives to create industryspecific trainings, and in this example, the actual hazards experienced by technicians in motor vehicle service and collision businesses. It is anticipated that the final version will be launched and available to members by August 1. In addition to our online offering, this training is also offered free, on-site, for all members of the Workers’ Compensation Trust. If you’d like to learn more or put your name on the list for this training, please contact me at bduplessis@nhada.com or (603) 224-2369. 15
DENNIS GAUDET Nucar Pre-Owned Superstore of Concord Independent Used Car Director IMAGE HERE September 6, 2024 Pease Golf Course Portsmouth, NH NHADA.COM/GOLF Supports Automotive Education! WELCOME, NEW BOARD MEMBERS! JOHN CROWLEY Best Ford Inc. Franchised New Car Director MICHAEL LAMPERT New England Truck Center Franchised Heavy Duty Truck Director All signed on for a three-year term ending on April 30, 2027. 16
IMPROVING EMPLOYEE BENEFITS TO ATTRACT AND RETAIN TALENT BY LORI PREVE LICENSED INSURANCE PRODUCER, NHADA Employers are continuously seeking ways to enhance their benefits packages to attract and retain top talent. Striking a balance between comprehensive plan offerings and affordable premium costs is crucial. It’s important for employers to ensure that the benefits they provide are both valuable and financially accessible for the company and its employees. For instance, if the deductibles on a healthcare plan are prohibitively high, employees might avoid necessary medical visits, negatively impacting their overall well-being and productivity. At NHADA, we specialize in helping our members select the most suitable plan options for their employees. We offer large group health insurance benefits with a selection of thirteen diverse medical plans. Each of these plans are fully insured, guaranteeing long-term rating stability. In addition to medical plans, our offerings include a wide range of dental, vision, life, Accidental Death and Dismemberment (AD&D), and disability income protection options. We also provide group and voluntary life and disability products, worksite plans, Section 125 plans, Health Reimbursement Arrangements (HRA) and Flexible Spending Accounts (FSA). Our commitment to excellent service is reflected in our dedicated customer service representatives who are available to address any issues or questions. We ensure that our members can speak with a real person, receive rapid responses and benefit from proactive support. Our goal is to handle each issue with the care and attention you deserve, enhancing your overall experience and satisfaction with our services. Supporting Statistics 1. Employee Retention and Benefits: According to a survey by the Society for Human Resource Management (SHRM), 92% of employees indicated that benefits are important to their overall job satisfaction, and 29% of employees cited benefits as a top reason for leaving their job. 2. Health Insurance Costs: The Kaiser Family Foundation reports that in 2023, the average annual premiums for employer-sponsored health insurance were $7,739 for single coverage and $22,221 for family coverage. Managing these costs effectively while providing valuable benefits is essential for employers. 3. Dental and Vision Coverage: A study by the National Association of Dental Plans (NADP) found that 77% of Americans had dental benefits, and employees with dental coverage are more likely to visit the dentist regularly, which contributes to overall health. Vision insurance also plays a critical role, with the Vision Council noting that eye exams can detect early signs of chronic conditions such as diabetes and hypertension. 4. Disability Insurance: The Council for Disability Awareness states that more than 25% of today’s 20-year-olds will become disabled before they retire. Offering disability income protection can provide employees with peace of mind, knowing they have financial support if they are unable to work due to a disability. By providing a comprehensive and affordable benefits package, employers can not only attract and retain top talent but also ensure their workforce is healthy, satisfied and productive. For questions or more information on NHADA insurance plans, please contact me directly at lpreve@nhada.com or (603) 224-2369. Sources 1. Society for Human Resource Management (SHRM). “Employee Benefits: The Importance of Employee Benefits to Workforce Retention and Job Satisfaction.” 2023. 2. Kaiser Family Foundation. “2023 Employer Health Benefits Survey.” 2023. 3. National Association of Dental Plans (NADP). “2023 Dental Benefits Report.” 2023. 4. Vision Council. “The Role of Vision Benefits in Employee Health and Wellness.” 2023. 5. Council for Disability Awareness. “The Disability Divide: Employer Perspectives on Disability Benefits.” 2023. 17
UNPACKING THE 2024 “FAMILY REUNION” CONVENTION BY KALEENA GUZMAN MAJOR EVENTS & ASSOCIATION PARTNERSHIP PROGRAM DIRECTOR, NHADA On Sunday, June 23, NHADA members, partners and their families all arrived at our Annual “Family Reunion” Convention at Mill Falls on the Lake, a timeless all‑seasons resort on Lake Winnipesaukee, New Hampshire. Although we’ve stayed at this resort before, this year was jam-packed with so many fun activities, like the much-favored tiki boat tour! On the first night, our guests enjoyed a new activity: an exciting edition of the Family Feud game show. This added a lively and competitive spirit, fostering camaraderie and entertainment among attendees. On day two, our attendees embarked on their own activities, choosing from several surrounding attractions — from wine tasting, golf, go-karts and the Mini Winni party bus. Although we had a little rain, there was no shortage of smiles. The second and final evening’s dinner was kickstarted by our Annual Meeting slideshow presentation. Following dinner, entertainment was provided by acclaimed Mentalist Ryan Lally; this also did not disappoint. Before departure, NHADA Diamond Partner Andy Graff from ComplyAuto gave a brief presentation on cybersecurity, outlining steps members can take to mitigate risks following the recent CDK Global incident. This year’s event would not have been as successful as it was without our dedicated and supportive event sponsors, including Prime Sponsor Auto Auction of New England, Northeast Auto Auction, Albin Randall & Bennett, Nucar, ComplyAuto, ICL Autos, Zurich, Armatus Dealer Uplift, Northeast Delta Dental, Gordon-Darby NHOST Services, TSS Advisors, Bernstein Shur, Best Ford, Brown & Brown Dealer Services, GW Marketing Services, Quirk Auto Dealers, JM&A Group, Portsmouth Ford and Profile Powersports. Thank you, sponsors! If you have any questions regarding the event, please contact Kaleena Guzman at (603) 224-2369 or at kguzman@nhada.com. 18
Did you join us this year? We’d love to know how we did. Please take a three-minute feedback survey with the QR code below, if you have not already. We appreciate it! https://survey.hsforms.com/1iE_ fGXKjSfCIKvX5tk3saQ2vilx 19
NHADA AND THE NEW HAMPSHIRE DEPARTMENT OF SAFETY ADDRESS ROADWAY SAFETY On June 6, 2024, at the New Hampshire Motor Speedway, NHADA, alongside key state officials, safety advocates and other coalition members, united to tackle the urgent issue of dangerous and irresponsible driving on New Hampshire’s roadways. The event aimed to promote safer driving habits among Granite State residents and visitors and was part of a week-long campaign focused on raising awareness about the dangers of high-speed and unsafe driving. Gov. Chris Sununu emphasizes the critical need for this initiative. “This summer, let’s leave the high speeds on the track,” said Gov. Chris Sununu. “It’s on all of us to do our part by driving safely and taking it slow!” Insurance Commissioner DJ Bettencourt spoke about the financial implications for drivers. “Speeding tickets and accidents don’t just result in fines and costly repairs, they lead to higher insurance premiums for everyone,” said Commissioner Bettencourt. “By driving responsibly, we can all contribute to a safer and more affordable environment on our roads.” Department of Safety Commissioner Robert Quinn highlighted the collaborative efforts of various departments in tackling this issue. “Ensuring road safety is a shared responsibility,” said Commissioner Quinn. “Our department, along with our partners here today, is dedicated to reducing the incidents of reckless driving through education and enforcement. Together, we can make New Hampshire’s roads safer for everyone.” Col. Mark Hall of the New Hampshire State Police emphasized the critical role of law enforcement in promoting road safety. “The New Hampshire State Police are dedicated to ensuring the safety of everyone on New Hampshire’s roadways,” said Colonel Hall. “Every time a driver chooses to speed or drive recklessly, they endanger everyone around them. Aggressive and reckless driving are serious threats that we must address through strict enforcement and public education.” David McGrath, executive vice president and general manager of New Hampshire Motor Speedway, emphasized the importance of distinguishing between safe driving on public roads and high-speed driving on the track. “At New Hampshire Motor Speedway, we understand the thrill of high-speed driving, but it’s essential to keep those speeds on the track where it’s safe and controlled,” said McGrath. “Our mission is to provide a safe environment for high‑speed driving. High-speed driving has its place, and it’s on a racetrack, not on New Hampshire’s highways and streets.” Daniel Goodman of AAA Northern New England stressed the importance of public awareness. “Public awareness L to R: Traci Beaurivage, New Hampshire Motorcyclists’ Rights Organization, Daniel Goodman, AAA of Northern New England, Department of Safety Commissioner Robert Quinn, Daniel Bennett, New Hampshire Automobile Dealers Association 20
campaigns like this are vital,” said Mr. Goodman. “They remind us that every time we get behind the wheel, we have a responsibility to drive safely. The risks of aggressive driving are too great to ignore, and we must all do our part to make the roads safer.” Chris Cyr, CEO of Team O’Neil Rally School, emphasized the importance of context for safe driving. “There is a time and place for high-speed driving and risky maneuvers, and that’s on a closed track, not on public roads,” said Cyr. “At Team O’Neil, we teach drivers how to handle their vehicles safely in controlled environments. By preparing drivers through training and education you make them aware of the risks involved and how to avoid accidents through their driving and decision making.” Daniel Bennett, president of the New Hampshire Auto Dealers Association, highlighted the motor vehicle industry’s role in promoting road safety. “The New Hampshire Auto Dealers Association is committed to safe roads in New Hampshire,” said Bennett. “Safe driving is about responsibility and respect for all road users. Together, we hope to inspire positive changes in driving habits that will benefit everyone on the road. Unsafe speeds and driving are also an employment issue: If a driver is uninsurable, they may also be unemployable in our industry, which has workforce needs.” Traci Beaurivage, president of the New Hampshire Motorcyclists’ Rights Organization, emphasized the need for heightened awareness and cooperation on the roads. “Reckless driving affects us all, but motorcyclists often bear the brunt of these dangerous behaviors,” said Beaurivage. “Respect on the road starts with each one of us. By driving safely, and avoiding reckless speeds and aggressive behaviors, we can help reduce accidents and ensure that everyone gets home safely.” Across the entire state in 2023, data from the New Hampshire Department of Safety’s Division of Motor Vehicles showed 116 people were given tickets for driving 100‑109 mph, while another 10 people were ticketed for driving 110‑120 mph. State officials also shared recent statistics on driver behavior on Interstate 95 and Interstate 93, where aircraft patrols are commonly deployed: • In 2015, state police made 5,018 stops — 359 for driving 90-plus miles per hour and 23 for driving 100-plus mph. • In 2020, they made 5,025 stops — 900 for 90-plus, 81 for 100-plus. • In 2023, they made 3,115 stops — 840 for 90-plus, 89 for 100-plus. The percentage of excessive-speed drivers among those who were stopped on the two interstates has increased significantly over the years. In 2015, that percentage was 7.6%. In 2020, it was 19.5%. In 2023, it was 29.8%. The press conference underscored the message that reckless driving behaviors, such as speeding, not only jeopardize the safety of all road users but also have significant financial repercussions. Attendees were reminded that safe driving is a collective effort that benefits everyone. To view a video of the press conference, scan the QR code. Follow our campaign on social media using the hashtag #DriveSafeNH to learn more about how you can contribute to making New Hampshire’s roads safer. https://www.youtube.com/watch?v=fepjlC6Fkxo The New Hampshire Insurance Department Can Help The New Hampshire Insurance Department’s mission is to promote and protect the public good by ensuring the existence of a safe and competitive insurance marketplace through the development and enforcement of the insurance laws of the state of New Hampshire. Contact them with any questions or concerns you may have regarding your insurance coverage at (800) 852-3416 or (603) 271-2261, or by email at consumerservices@ins.nh.gov. For more information, visit www.nh.gov/insurance. About the New Hampshire Department of Safety The Department of Safety has more than 2,200 full‑time, part-time, non-classified and seasonal employees functioning in both uniformed and civilian capacities throughout the state, and regularly partners with local, state and federal agencies to protect the lives of all New Hampshire residents and visitors. The Department of Safety is tasked with enforcing criminal, motor vehicle and boating laws, and providing for fire safety, fire and emergency medical training, emergency communications and disaster planning. To contact the Department of Safety, call (603) 271-2791, or email nhdos@dos.nh.gov. For more information, visit dos.nh.gov. 21
SECOND INJURY FUND BY DEB HANDRAHAN WCT CLAIMS SUPERVISOR AND HEATHER OVERSON CLAIMS REPRESENTATIVE, NHADA In 2023, the NHADA Workers’ Compensation Trust (WCT) recovered $467,364.22 from the Second Injury Fund for payments made on workers’ compensation claims in 2022. This is the second highest recovery since 1990. We have recovered nearly $8 million since 1990 with the help of our NHADA WCT members. The Second Injury Fund in New Hampshire was implemented in 1975 as a way to encourage employers to hire applicants with physical or mental impairments. The Second Injury Fund reimburses a portion of the workers’ compensation payments that carriers or self-insured’s pay, when an employee with a documented pre-existing condition suffers a work-related injury which results in a greater disability than would have been caused by the subsequent injury alone. Therefore, it reduces the workers’ compensation liability of hiring someone with a pre-existing permanent impairment. The Second Injury Fund reimburses 50% of medical and indemnity payments for the first 104 weeks of disability and 100% thereafter, after a $10,000 deductible. Payments for permanent impairment, vocational rehabilitation, attorney fees and expenses to the file are not reimbursable. Lump sum settlements which are pre-approved by the Special Fund are reimbursable with the exception of the permanent impairment portion of the settlement. The critical piece of a successful Second Injury Fund claim is the employer’s knowledge of the employee’s pre-existing condition. The employer must have written documentation supporting their knowledge of the pre‑existing condition before the injury in the workplace occurs. One way of documenting pre-existing conditions is the Second Injury Fund Post Conditional Offer Medical Form (the Second Injury Fund Form). To view the form, scan the QR code. https://4829685.fs1.hubspotusercontent-na1.net/ hubfs/4829685/Everything%20Second%20Injury%20 Fund.pdf This form must be completed after the conditional offer of employment has been made and before the applicant begins work. The information included in the form will not adversely affect their employment unless they are not forthright with the information. In addition, it will not change their entitlement to workers’ compensation benefits should they sustain a work‑related injury. Remember that the pre-existing condition can be a work‑related or non-work-related medical condition, but must be of a serious nature, which may be considered a hindrance to employment opportunities. NHADA WCT members who take the time to explain the Second Injury Fund form to new hires and double-check to ensure that it is completed accurately have the highest Second Injury Fund recoveries. The time spent reassuring a new hire about the Second Injury Fund form could mean the difference between a successful Second Injury Fund claim and no reimbursement at all. When a current employee reports a non-work-related medical condition which requires time out of work — such as a ski/snowboard injury, surgery, heart condition, etc. — the actual doctor’s note should be retained in the employee’s confidential medical file separate from the personnel file. If the employee does not provide medical documentation, a note can be placed in the confidential medical file, signed and dated by the employer documenting the medical condition at the time the employee either leaves or returns to work. Short-term disability forms, FMLA forms, text messages, emails or correspondence to the employee regarding leaves of absence or sick time serve as excellent documentation for employer knowledge for a Second Injury Fund claim. In August 2024, we will request reimbursement for 2023 payments, and we will receive reimbursement in April of 2025. Members who review their quarterly loss runs who have accepted Second Injury Fund claims will see the total incurred costs on those claims decrease year after year as recoveries are credited. Ultimately, if the costs of the claims for the year of the original Second Injury Fund claim are less than the premium paid into the WCT, money will be returned to the member in rebate. Deb Handrahan or Heather Overson are available to meet with employers to review the Second Injury Fund process. If members would like to meet with Deb or Heather, please contact them at dhandrahan@nhada.com or hoverson@nhada.com or call (603) 224-2369. 22
www.thenewslinkgroup.orgRkJQdWJsaXNoZXIy MTg3NDExNQ==