BILL ANALYSIS
AB 2289
Page 1
ASSEMBLY THIRD READING
AB 2289 (Eng)
As Amended May 28, 2010
Majority vote
TRANSPORTATION 8-3 APPROPRIATIONS 12-5
-----------------------------------------------------------------
|Ayes:|Bonnie Lowenthal, |Ayes:|Fuentes, Ammiano, |
| |Blumenfield, Buchanan, | |Bradford, |
| |Eng, Furutani, Galgiani, | |Charles Calderon, Coto, |
| |Hayashi, Solorio | |Davis, Monning, Ruskin, |
| | | |Skinner, Solorio, |
| | | |Torlakson, Torrico |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Jeffries, Bill Berryhill, |Nays:|Conway, Harkey, Miller, |
| |Miller | |Nielsen, Norby |
| | | | |
-----------------------------------------------------------------
SUMMARY : Establishes new industry operating standards and
technology upgrades to the current biennial inspections of
vehicle emission control equipment and systems (smog check)
program. Specifically, this bill :
1)Establishes legislative intent directing that the Department
of Consumer Affairs, Bureau of Automotive Repair (BAR) work
with the California Community Colleges and other training
institutions to identify funding mechanisms that encourage the
development of innovative programs that respond to industry
demands for automotive technicians.
2)Establishes January 1, 2013, as the date for which new testing
procedures is authorized for the test-only smog facilities.
Authorizes BAR, in consultation with the California Air
Resources Board (ARB), to also select other vehicles for
testing in order to meet federal emission reduction
performance standards.
3)Authorizes an alternative smog check test method and
corresponding test equipment for the year 2000 and newer motor
vehicles equipped with updated on-board diagnostic systems
(OBD II).
AB 2289
Page 2
4)Authorizes BAR to establish inspection-based performance
standards and requires vehicles that cause most of the
pollution to have smog checks performed by stations that meet
high performance standards. For test-only stations, requires
BAR to automatically suspend operations when the test-only
station fails the inspection-based performance standards.
Establishes suspension and appeal procedures.
5)Establishes that the criteria for the inspection-based
performance standards is the same for all smog check
facilities. If deemed feasible by BAR, establishes that
performance standards also apply to smog check technicians.
Requires BAR, if the performance standards are established, to
provide to smog check stations and technicians, no later than
January 1, 2012, a preliminary report on their performance.
6)Prohibits a test-only facility from referring a vehicle owner
to a specific vehicle repair facility in which the owner of
the test-only facility has also a financial interest in the
vehicle repair facility.
7)Revises the existing procedures for the provision of referees
by BAR. Requires referees to make inspections of specially
constructed vehicles, as defined. Authorizes referees to
promote automotive training through community colleges and
other training institutions certified by BAR.
8)Requires an annual evaluation of the performance of the smog
check program by BAR, in cooperation with the ARB, using data
collected from a roadside audit program. The required annual
report, beginning July 1, 2011, is to include, at a minimum,
the following:
a) An independent analysis done on the report's evaluation
methods, findings, and conclusions;
b) The percentage of vehicles that initially passed a smog
check inspection and then failed a subsequent inspection;
c) The percentage of vehicles that initially failed a smog
check inspection and then failed a subsequent inspection;
d) An estimate of excessive emissions resulting from
vehicles identified in (b) and (c);
AB 2289
Page 3
e) A best-efforts explanation regarding the reasons
vehicles inappropriately failed or passed an inspection.
f) Recommended changes to the smog check program. Requires
authorization by the Legislature, through enactment of
statute, prior to implementing any recommendations on
contracting the management of smog check stations; and,
g) A comparison to the findings of the report "Evaluation
of the California Smog Check Program Using Random Roadside
Data" dated March 12, 2009.
9)Authorizes BAR to enter into a contract for the supply or
service of certified equipment with the manufacturers and
service providers. Requires BAR to provide to smog check
stations the option to purchase the equipment or service
directly from the contractor or any other provider of
certified equipment or service.
10)Prohibits BAR from requiring smog check stations to use the
new certified equipment earlier than January 1, 2013.
11)Clarifies, should existing smog check station equipment
upgrades cost more than $10,000, that BAR would be required to
submit recommendations to the Governor and the Legislature for
any appropriate mitigation measures, including and not limited
to subsidies, equipment leases, grants, or loans. Extends the
provisions also to certified training institutions.
12)Repeals the existing fine and penalty structure and adopts a
more stringent fine and penalty structure to respond to
stations and technicians that perform improper inspections.
Establishes a minimum fine penalty of $100, but not more than
$5,000, based upon various factors of consideration by BAR.
Increases the minimum daily civil penalty to not more than
$5,000 per day. Requires, in assessing civil penalties, that
due consideration be provided to certain factors as specified.
13)Increases the penalties to customers who obtain or attempt to
obtain a repair cost waiver, or economic hardship extension,
by falsifying information to not more than $5,000. Adds a new
penalty violation to a customer who obtains or attempts to
AB 2289
Page 4
obtain a smog certificate by falsifying information to not
more than $5,000.
EXISTING LAW :
1)Requires, generally, gasoline and diesel-fueled vehicles that
are registered in nonattainment areas for ozone or carbon
monoxide pollutant emissions to undergo smog check.
Authorizes BAR to enforce and administer the smog check
program to ensure the reduction of gaseous emissions of
hydrocarbons, carbon monoxide, and oxides of nitrogen.
2)Requires the smog tests to include, at minimum, loaded mode
dynamometer testing in enhanced areas, and 2-speed testing in
all other program areas, and a visual or functional check of
emission control devices specified by smog technicians.
3)Requires the periodic evaluation of the smog check program by
BAR and ARB. Establishes the Inspection and Maintenance
Review Committee Inspection and Maintenance Review Committee
(IMRC) to review the BAR/ARB joint evaluation and to submit a
report on the proposed plan to the Legislature.
4)Establishes procedures for the issuance of citations for
operating violations by underperforming stations and
establishes a schedule of civil penalties for the violations.
5)Requires BAR, if existing smog check stations, in order to
participate in the enhanced program, have been required to
make additional investments of more than $10,000, to submit
recommendations to the Governor and the Legislature for any
appropriate mitigation measures.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, annual costs to BAR, ranging from $400,000 to
$600,000, to develop new Smog Check standards, certify test
stations that meet higher standards, enforce compliance, and
collect, analyze and publish data. Minor, absorbable costs to
ARB to consult with BAR.
COMMENTS : BAR and ARB are jointly sponsoring this bill that
they assert will save consumers money, save time, and provide
greater air quality from the state's smog check program, which
AB 2289
Page 5
is administered by BAR. According to smog station industry
sources, this is the second attempt within several years to try
to achieve major smog check program upgrades. That unsuccessful
attempt, they claim, was due to the inability to foster a sense
of trust as well as a consensus agreement on program goals/needs
between the stakeholders - - the air quality regulators, BAR
management, smog check industry, equipment suppliers, and
environmental organizations. This bill represents, for the most
part, an earnest negotiated consensus among those parties.
The author's office contends that this bill is designed to
improve smog check in reducing pollution through the use of new
technologies (OBD II) that provide considerable time and cost
savings to consumers while at the same time improving consumer
protections by adopting more stringent fine structures to
respond to station and technicians that perform improper and
incomplete inspections. While making the transition to new
equipment and reducing the need for the old equipment, the
author's office wants to provide clear direction to BAR/ARB and
especially to the regulated smog stations regarding the new
scope of the law as envisioned. With program implementation
changes clearly delineated by this bill, smog stations will be
better able to make informed business decisions along with the
ability of BAR personnel to better manage, investigate, and
enforce the program.
Statewide smog check program: In 1982, California became the
20th state in the nation to adopt a vehicle inspection and
maintenance (smog check) program. Unlike the other states, BAR
administers a "decentralized" program, which means that smog
check stations are privately owned and operated. In 2008/2009,
BAR licensed approximately 8,400 smog check stations (although
only 7,300 are considered active stations in the 1st quarter of
2009). During this time, BAR also licensed almost 14,000 smog
check technicians.
OBD II: According to ARB, OBD II is an acronym for On-Board
Diagnostics II, the second generation of on-board self-diagnostic
equipment requirements for California vehicles. OBD II does not
test exhaust. Instead, this system checks a vehicle's
computer-controlled emissions systems and components to ensure
that no malfunction exists that would cause an increase in
emissions. OBD II is installed on most 1996 and newer passenger
cars and light duty trucks. The electronic component allows smog
AB 2289
Page 6
technicians to plug into the vehicle's computer and diagnose
in-use driving vehicle emission performance.
According to IMRC, with the exception of California and
Colorado, all states with federally- mandated smog check
programs have discontinued tailpipe, visual, and functional
testing for newer model-year vehicles, because they were deemed
not cost effective. The U.S. Environmental Protection Agency
(USEPA) has supported OBD-only testing and testified before the
IMRC last year that it would agree with this approach in
California. The primary advantages of OBD II-only testing are a
lower cost to the consumer and a more effective testing
procedure.
The California Automotive Business Coalition, writing in
opposition to this bill, indicates that "the vast majority of
vehicles in the State of California would instead only be
required to be tested using only the on-board diagnostic (OBD)
equipment of the vehicle. The shift of vehicles away from
tailpipe testing requirements will erode the ability of existing
businesses to generate future income on their investments; and
could also deteriorate our state's air quality. At a minimum,
there is significant dispute about the accuracy of OBD systems
to properly detect excess emissions."
Additionally, the Automotive Service Councils of California
(ASCCA), also in opposition to this bill, contends that "it may
be possible for "gross polluting" vehicles to pass smog check
under
AB 2289, since the tailpipe emissions testing would not be
required for vehicles 1996 or newer. Although OBD II systems
have steadily improved over the years, concerns still remain with
faulty OBD systems in late 1990's and early 2000 vehicles passing
the OBD II portion of the test but still failing the tailpipe
emissions test. Furthermore, oxides of nitrogen, or NOx, is a
key contributor to air pollution and is currently measured
through the tailpipe emissions test. ASCCA recommends that OBD
II-only testing be performed on 2000 model year and newer
vehicles." This bill follows that recommendation and provides
BAR the authority to employ the OBD II-only testing option on
model year 2000 and newer vehicles.
Impact upon remaining fleet: According to ARB, eliminating
tailpipe testing for the newer fleet would result in changes to
AB 2289
Page 7
the current smog check equipment and practices within the
industry. Even in 2008, the newer fleet (i.e., OBD II-equipped
vehicles) made up over 66% of all vehicles inspected, and the
percentage is growing every year. The number of older cars in
the fleet that need a tailpipe test, on the other hand, will
continue to diminish over time. At some point, tailpipe testing
volumes may be reduced to the point that it is impractical or
not cost effective to have tailpipe testing equipment at every
smog check station, and other infrastructure options would need
to be considered (e.g., tailpipe testing at a subset of
stations, allowing individual stations to opt in or out of
tailpipe testing from a business point of view, etc.).
Maintaining a tailpipe testing infrastructure, however, is a
vital element to the smog check program. As the test-only
stations currently handle approximately 60% of smog inspections,
the impact upon that segment of the smog check industry could
result in the majority of those stations to be economically
unviable, according to the California Emissions Testing
Industries.
Sierra Research Report (March 2009): ARB, in cooperation with
BAR, hired Sierra Research, Inc. to conduct an independent
research and analysis of the smog check program using data
collected from roadside inspections conducted in 2003-2006. It
is believed that the study's findings spurred the need for smog
program changes, thus leading to the introduction of this bill.
The study compared roadside inspection results for 1976-95
(pre-OBD II) model year vehicles to the smog check inspection
results reported by smog check stations for these same vehicles.
Key findings from the study included:
1)Of the 1976-95 vehicles sampled, 19% of the vehicles initially
passed a tailpipe inspection at a licensed smog check station,
but failed a roadside audit inspection within a year.
2)The data also showed that 49% of the vehicles that failed a
roadside audit inspection had failed, and then subsequently
passed, a tailpipe inspection at a smog check station within
the past year.
To better address the extent to which improper and/or falsified
test results may be factors in the smog check program, the
report recommended corrective steps, some of which are
incorporated in this bill.
AB 2289
Page 8
Smog check equipment change - Transitioning from BAR-97 to
BAR-2012: Approximately 10,000,000 smog check inspections are
performed on motor vehicles each year in California. Smog check
inspections are performed by approximately 7,300 licensed smog
check stations located throughout California. Smog check
inspections are currently performed using a BAR-97 Emissions
Inspection System (EIS). The BAR-97 EIS equipment is required
in all smog check stations located in enhanced areas, or
California's smoggiest regions. The BAR-97 EIS tests vehicles
under simulated driving conditions to detect oxides of nitrogen,
hydrocarbons, and carbon monoxide emissions. These are the
major chemical components of smog. The equipment consists of a
5-gas analyzer, additional hardware, software, a fuel cap
tester, and a dynamometer with safety restraints. The most
distinctive component of the equipment is the dynamometer, a
treadmill-like device that simulates driving conditions.
Originally certified by BAR in 1997/1998, the state's current
BAR-97 EIS units are more than 13 years old.
The BAR-2012 EIS Project is an information technology project to
procure the development of standardized state-owned software and
integrate that software with various equipment components of the
BAR-2012 EIS. According to BAR, the current BAR-97 EIS relies
on older technology that cannot be easily updated to respond to
needed smog check program improvements. The BAR-2012 EIS will
be flexible, scalable, and responsive to the demands for program
change and allow increased program effectiveness and efficiency.
BAR anticipates award of contract to develop the new equipment
on September 2010. Furthermore, they expect a transition from
BAR-97 to BAR 2012 at the end of 2012. Accordingly, to give
business some certainty in making informed business decisions,
this bill prohibits BAR from requiring the use of the new
equipment prior to January 1, 2013. Further, under current law,
if equipment purchases are mandated and exceed $10,000 in costs,
BAR is required to submit recommendations to the Governor and
the Legislature for any appropriate mitigation measures. This
bill expands those mitigation measures and also includes cost
considerations for certified training institutions.
Enforcement issues: According to IMRC, problems identified in
the Sierra Research report indicate that current fines for
conducting improper smog check inspections fail to change
technician's behavior. "When technicians are issued a citation
AB 2289
Page 9
under current provisions of the Health and Safety Code, they are
only required to undergo additional training. They pay no
monetary fine. Unfortunately, this training appears to have
little impact since almost 50% of the inspections conducted on
vehicles that originally failed appear to have been performed
improperly. Further, although BAR's enforcement division
identifies stations and technicians that fail to perform in this
area, the penalties, as specified in statute, are too small to
change their poor behavior. Therefore, BAR needs a statutory
change that will increase penalties in order to change poor and
fraudulent behavior." This bill increases and expands existing
fines and penalties for violations committed by smog station
owners, technicians, and customers.
Annual report: On an on-going basis, BAR conducts random
roadside audits (smog tests) on vehicles. The results from
these inspections are used to evaluate the performance of the
smog check program in achieving Clean Air Act requirements.
This bill requires that the results of these audits be evaluated
and reported annually, beginning July 1, 2011. This bill also
requires approval by the Legislature, through enactment of
statute, prior to the implementation of any report
recommendation pertaining to contracting out the management of
the smog check program.
Training programs and referees: Currently, the California
community colleges and private institutions provide smog check
training for technicians. The community colleges also provide
the basic source of referees to mediate smog check compliance
issues. This bill establishes intent language that directs BAR
to work with the colleges to identify funding options for the
development of innovative vehicle technician training programs.
Analysis Prepared by : Ed Imai / TRANS. / (916) 319-2093
FN: 0004699