BILL ANALYSIS
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THIRD READING
Bill No: AB 2289
Author: Eng (D)
Amended: 08/02/10 in Senate
Vote: 21
SENATE BUS., PROF. & ECON. DEV. COMM. : 4-2 (Fail), 6/21/10
AYES: Negrete McLeod, Calderon, Florez, Yee
NOES: Aanestad, Correa
NO VOTE RECORDED: Wyland, Oropeza, Walters
SENATE BUS., PROF. & ECON. DEV. COMMITTEE : 5-2, 6/28/10
AYES: Negrete McLeod, Calderon, Corbett, Florez, Yee
NOES: Aanestad, Correa
NO VOTE RECORDED: Wyland, Walters
SENATE TRANSPORTATION & HOUSING COMMITTEE : 7-2, 7/1/10
AYES: Lowenthal, DeSaulnier, Harman, Kehoe, Pavley,
Simitian, Wolk
NOES: Huff, Ashburn
SENATE APPROPRIATIONS COMMITTEE : 6-1, 8/9/10
AYES: Kehoe, Corbett, Leno, Price, Wolk, Yee
NOES: Ashburn
NO VOTE RECORDED: Alquist, Emmerson, Walters, Wyland
ASSEMBLY FLOOR : 48-27, 6/2/10 - See last page for vote
SUBJECT : Smog check program: testing: penalties
SOURCE : California Air Resources Board
Bureau of Automotive Repair
CONTINUED
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DIGEST : This bill makes several changes to the smog
check program, including requiring that vehicles be
inspected using the vehicles onboard diagnostic equipment
(OBD II, for second generation) and establishing
performance standards that test-only and Gold Shield
stations must meet in order to be eligible to issue
certificates of compliance or noncompliance to
high-emitting vehicles directed to it.
ANALYSIS : To meet federal air quality standards,
existing law requires California-registered,
gasoline-powered vehicles and certain diesel-powered
vehicles to undergo biennial smog inspections to measure
motor vehicle-related pollutants. New vehicles six model
years old and newer, vehicles with a pre-1976 model year,
electric vehicles, motorcycles, and large commercial
vehicles are exempt from the smog check program.
Upon initial registration and upon a change of ownership
and registration of a vehicle, the vehicle owner must
submit to the Department of Motor Vehicles (DMV) a valid
certificate of compliance indicating that the vehicle has
passed its smog inspection. If a vehicle fails any
component of a smog inspection, the vehicle owner must,
with some exceptions, repair the vehicle and pass a
subsequent smog inspection before being able to register or
renew the registration of the vehicle.
The Bureau of Automotive Repair (BAR) is charged with
implementing the smog check program. Existing law
establishes three types of smog check stations that BAR
licenses to test, repair, and provide other services to
vehicles subject to smog inspections.
The first type of station is a test-only station, which
tests, but does not repair, vehicles. Each year, BAR
directs a certain percentage of vehicles that it deems to
be "high emitters" (currently about 42 percent) to
test-only stations. Directing vehicles to this type of
station was instituted in 1995 with the idea that, because
test-only stations are not authorized to perform repairs,
they do not have a vested interested in whether or not a
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vehicle fails its smog inspection and thus are more likely
to conduct the inspection in accordance with established
procedures.
The second type of station is a test and repair station,
which is any mechanic or garage that is licensed by BAR to
perform tests and make repairs. BAR does not direct
vehicles to these stations. Any consumer whose vehicle is
not directed to a test-only station may take their vehicle
to any licensed smog station, including a test and repair
station.
A test and repair station may apply to BAR for
certification as a "Gold Shield" station, provided the
station meets certain performance standards established by
BAR. Gold Shield stations may also test directed vehicles
and make repairs that are funded through BAR's Consumer
Assistance Program.
The third type of smog check station is a referee facility.
Referees inspect vehicles that require special testing
procedures because, for example, the vehicle does not
contain original emission control equipment. Referees
also issue repair cost waivers, hardship extensions, and
certificates of compliance or noncompliance.
A smog inspection generally involves four components: a
measurement of exhaust emissions (i.e., tailpipe test), an
evaporative emissions test, a smoke test, and a visual and
functional inspection. Current law prescribes the testing
procedures that must be used to conduct the tailpipe test
but is less prescriptive for the evaporative emissions
test, the smoke test, and the visual and functional
inspection.
Existing law permits BAR to issue citations to any licensed
smog check station, test-only station contractor, or fleet
owner who conducts testing and repair of its own vehicles
for a violation of laws or regulations governing the smog
check program. It also enumerates civil penalties that may
apply to specific violations, other enforcement actions
that BAR may take (e.g., requiring participation in a
retraining course) against the violator, and the process
that a violator may undertake to contest the citation.
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This bill makes several changes to the smog check program,
but the two most significant policy changes include
requiring that vehicles be inspected using the vehicle's
OBD II system and establishing performance standards that
test-only and Gold Shield stations must meet in order to be
eligible to issue certificates of compliance or
noncompliance to high-emitting vehicles directed to them.
To implement these policies, as well as other changes
intended to reduce the potential for fraud, the bill makes
numerous changes to current law, as described in detail
below.
Onboard Diagnostic Testing (OBD II) . In requiring OBD II
testing, this bill does the following:
1. Requires BAR to implement testing using OBD II, in lieu
of loaded mode dynamometer or two-speed idle testing,
beginning no earlier than January 1, 2013. However,
BAR, in consultation with the state board, may prescribe
alternative test procedures that include loaded mode
dynamometer or two-speed idle testing for vehicles with
emission problems that may not be adequately detected by
their on-board diagnostic systems, including requiring
vehicles that have failed, or are likely to fail, their
onboard diagnostic test, when evidence suggests they
would have likely passed a tailpipe test, to be tested
using a loaded mode dynamometer or two-speed idle test
in lieu of an onboard diagnostic test.
2. Provides that vehicles not equipped with OBD II and
vehicles with emission problems that may not be
adequately detected by the vehicle's OBD II system may
be directed to test-only stations.
3. Requires BAR provide an analysis of pass and fail rates
of vehicles subject to an on-board diagnostic test and a
tailpipe test to assess whether any vehicles passing
their on-board diagnostic test have, or would have,
failed a tailpipe test, and whether any vehicles failing
their on-board diagnostic test have or would have passed
a tailpipe test.
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4. Provides that a vehicle will not pass its smog
inspection if the vehicle is identified as having an
excessive variance from computer data for that vehicle,
mismatched information, or other regularities. Vehicles
that fail for this reason shall be directed to BAR to
determine whether an inadvertent error caused the
regularity or the vehicle otherwise meets smog check
requirements.
Performance standards . To establish performance standards
that stations must meet, this bill:
1. Requires BAR to establish performance standards based on
inspection data derived from the station that each
test-only stations and Gold Shield stations must meet in
order to be eligible to issue certificates of compliance
and noncompliance for directed vehicles.
2. Establishes a process by which BAR provides notice to a
test-only station who is not meeting the performance
standards, as well as a process by which a test-only
station may request a hearing to contest the suspension.
Specifically, the bill requires BAR to provide a
test-only station with a written or electronic notice at
least 48 hours prior to the suspension indicating the
grounds for suspension and the process for requesting a
hearing to contest the suspension. A station must
request a hearing within five days of receipt of the
notice. Such notice will stay the suspension until a
final decision has been made. BAR must conduct the
hearing within 10 days from receipt of the hearing
request and issue a written decision within 10 days of
the hearing. If the station owner is dissatisfied with
the outcome of the hearing, he or she may, within 30
days of the decision, request an administrative review
before an administrative law judge.
3. Authorizes BAR to adopt, by regulation, a process by
which vehicles that present prohibitive or unusual
inspection circumstances are inspected by referees.
4. Authorizes BAR to apply performance standards to smog
check technicians, in addition to stations.
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5. Requires BAR, by January 1, 2012, to provide to all
licensed smog check stations and technicians, if
technicians are included, a preliminary report on the
station's and the technician's performance meeting the
performance standards. The report shall include an
assessment of the station's and technician's potential
eligibility to issue certificates of compliance and
noncompliance and the criteria used in making that
assessment.
Equipment . The bill makes several changes regarding the
equipment that smog check stations may use. Specifically,
the bill:
1. Authorizes BAR to revises its standards for certifying
and decertifying test equipment.
2. Prohibits BAR from requiring smog check stations to use
equipment that meets revised standards before January 1,
2013. Prior to January 1, 2013, smog check stations
shall continue to use equipment meeting the
specifications established by BAR as of January 1, 1996.
If the revised standards result in station owners
having to invest more than $10,000 in new equipment, BAR
must submit recommendations to the Legislature and the
Governor to mitigate this impact.
3. Adds to the list of components that a test analyzer
system may have, a real-time computer data program that
would prevent a certificate of compliance from being
issued if a vehicle is identified as having an excessive
variance from computer data for that vehicle, mismatched
information, or other irregularities.
4. Allows BAR, rather than smog check stations, to enter
into a contract for the supply or service of testing
equipment or software. BAR must offer smog check
stations the option to purchase the equipment or service
directly from the contractor or any other provider of
certified equipment or service.
Enforcement measures . The bill makes several changes to
the enforcement procedures that BAR must follow when
issuing a citation for violations of the smog check
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program. Specifically, the bill:
1. Deletes sections of law articulating specific civil
penalties for specific violations and replaces it with a
range of administrative fines, from $100 to $5,000, that
BAR may impose for a violation. BAR may determine the
fine to be imposed within the specified range on a
case-by-base basis but must consider the following
criteria:
A. The nature, gravity, severity, and seriousness
of the violation.
B. The persistence of the violation.
C. The good faith or willfulness of the violator.
D. The history of previous violations by that
violator, including the commission of numerous and
repeated violations.
E. The failure to perform work for which money was
received.
F. The making of any false or misleading statement
in order to induce a person to authorize repair
work or pay money.
G. The failure to make restitution to consumers
affected by the violation.
H. The extent to which the violator has mitigated
or attempted to mitigate any damage or injury
caused by the violation.
I. The degree of incompetence or negligence in the
performance of duties and responsibilities.
J. The purposes and goals of the smog check program
and "other matters as may be appropriate."
2. Permits BAR to issue an order of abatement, in addition
to a fine, that specifies conditions the violator must
meet or risk having his or her license suspended or
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revoked.
3. Articulates the process by which an alleged violator may
contest the citation, as follows:
A. A person contesting a citation must, within 30
days of receiving the citation, request, in
writing, either an informal citation conference or
an administrative hearing.
B. If the person chooses an informal citation
conference, BAR has 60 days to hold the conference
and may affirm, modify, or dismiss the citation in
writing within 10 days following the conference.
C. If the person is dissatisfied with the outcome
of the conference, he or she may request an
administrative hearing within 30 days of receiving
the modified or affirmed citation following the
informal citation conference.
4. Increases the maximum civil penalty, from $1,000 to
$5,000, that BAR may impose on a person who obtains or
attempts to obtain a repair cost waiver or economic
hardship extension by falsifying information.
5. Establishes a maximum civil penalty of $5,000 that BAR
may impose on a person who obtains or attempts to obtain
a certificate of compliance by falsifying information.
Reporting . The bill requires BAR to prepare an annual
report beginning no later than July 1, 2011. The report,
which shall be made available to the public, shall include
the following components:
1. An independent validation of the evaluation methods,
findings, and conclusions presented in the report.
2. The percentage of vehicles that initially passed a smog
check inspection and then failed a subsequent
inspection.
3. The percentage of vehicles that initially failed a smog
check inspection and then failed a subsequent
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inspection.
4. An estimate of excessive emissions resulting from
vehicles that initially passed a smog check inspection
and then failed a subsequent inspection and from
vehicles that initially failed their inspection and then
failed a subsequent inspection.
5. A best-efforts explanation regarding the reasons why
those vehicles inappropriately failed or passed an
inspection.
6. Recommended changes to the smog check program to reduce
to a minimum the excess emissions identified above. In
developing the recommended changes, the bill requires
BAR and ARB to undertake a thorough evaluation of the
best practices of other state smog check inspection
programs and to include how best practices from other
states can be incorporated into California's program.
7. A comparison to the findings of the report "Evaluation
of the California Smog Check Program Using Random
Roadside Data" dated March 12, 2009.
Other changes . This bill makes several other smaller
changes to facilitate implementation of the smog check
program and conforms the law with current practice. The
bill authorizes referees, for example, to charge a fee
sufficient to cover the costs of providing referee
services. BAR will establish the requirements applicable
to the fee, including the amount, by regulation. Fees
collected by a contracted referee must be deposited into a
separate trust account and fees collected by BAR for
referee services must be deposited into the Vehicle
Inspection and Repair Fund. In addition, many provisions
of law related to the placement of referees at test-only
stations are deleted because, in practice, referees are not
placed within test-only stations.
Funding for vehicle technician training programs . This
bill declares that it is the Legislature's intent that BAR
work with the community colleges in California to identify
funding to develop training programs for motor vehicle
technicians that focus on reducing air pollution from
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vehicles needing repair and to increase the number and
skill level of such technicians.
Comments
OBD II . OBD II refers to the second generation of onboard
diagnostic equipment, which monitors the performance of the
emission control equipment to ensure it is operating
properly. When an OBD II system detects a problem with the
emission control system, a dashboard light is illuminated
indicating "Check Engine" or "Service Engine Soon." A
corresponding diagnostic trouble code is stored in the
computer's memory documenting which emission control
component is experiencing the problem and under which
conditions the problem is occurring. The repair technician
can retrieve the diagnostic trouble code information from
the vehicle's computer using a "scan tool." In this way, a
properly trained technician can more accurately diagnose
and repair problems. OBD II is standard on all 2000 and
newer model-year vehicles.
According to ARB, a co-sponsor of the bill, testing
vehicles using the vehicles' OBD system was approved in May
2001 by the United States Environmental Protection Agency
and is in use in 32 states, 26 of which have OBD II-only
testing procedures and four of which use a combination of
OBD II testing and tailpipe testing.
OBD testing is not new in California. It is currently part
of the visual and functional component of the smog
inspection such that if a "check engine" light is
illuminated, the vehicle will automatically fail its smog
test. What would change under the bill is the elimination
of tailpipe testing.
There are several benefits of OBD II-only testing,
including reducing the time and cost of the smog
inspection. An OBD II test is estimated to take about five
minutes and, while BAR does not set the rates that smog
stations may charge consumers, ARB and BAR anticipate that
OBD II-only testing will reduce the cost of inspections
from an average of about $48 today to around $20.
While OBD testing provides benefits to consumers, it raises
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some important questions regarding the extent to which such
testing will lead to greater emission reductions from the
smog check program and the types and costs of repairs that
consumers will be required to make as the vehicle ages.
OBD testing assumes that the malfunction of emission
control equipment detected by the OBD system is leading to
higher emissions, though the system does not measure actual
emissions.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee analysis:
Fiscal Impact (in thousands)
Major Provisions 2010-11 2011-12
2012-13 Fund
DCA/ BAR regulations $75 $125 $50 Special*
BAR referee all costs
covered by inspection fees Special*
inspections
Administrative penalties unknown,
likely minor increase in Special**
revenues
ARB consultation minor and
absorbable costs Special**
* Vehicle Inspection and Repair Fund (VIRF)
** High Polluter Repair or Removal Account in the VIRF
*** Air Pollution Control Fund
SUPPORT : (Verified 8/10/10)
California Air Resources Board (co-source)
Bureau of Automotive Repair (co-source)
American Lung Association
Bay Area Air Quality Management District
Breathe California
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California Air Pollution Control Officers Associations
California Council for Environmental and Economic Balance
California Emissions Testing Industries
Central Valley Air Quality Coalition Legislative Committee
Clean Power Campaign
Consumer Federation of California
Environmental Defense Fund
National Parks Conservation Association
Natural Resources Defense Council
Planning and Conservation League
Sacramento Air Quality Management District
Sierra Club California
South Coast Air Quality Management District
Union of Concerned Scientists
OPPOSITION : (Verified 8/10/10)
California Service Station and Automotive Repair
Association
Clean Air Performance Professionals
ARGUMENTS IN SUPPORT : According to the author's office,
the purpose of this bill is to improve the smog check
program through the use of new technologies that provide
considerable time and cost savings to consumers. In
addition, this bill improves consumer protections by
adopting more stringent fine structures to respond to
stations and technicians that perform improper and
incomplete inspections.
Several years ago, the ARB, in cooperation with BAR,
contracted with Sierra Research, Inc. to examine the
effectiveness of the smog check program using data
collected for 1976-1995 model year vehicles during roadside
test from 2000-2002 and again from 2003-2006 and compared
them to results from those vehicles' biennial smog
inspections. The research found that 19 percent of the
vehicles sampled initially passed a tailpipe inspection at
a licensed smog check station but failed a roadside
inspection within one year. The data also showed that 49
percent of the vehicles that failed a roadside inspection
had failed, and then subsequently passed, a tailpipe
inspection within the past year. In explaining the high
re-fail rate, the report concluded that improper testing
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and falsified test results (i.e., fraud) appeared to be the
primary contributors.
The requirements to implement OBD II testing, to establish
performance standards, and to strengthen enforcement
procedures are intended to reduce fraud while also
providing convenience to consumers.
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Bass, Beall, Block, Blumenfield,
Bradford, Brownley, Buchanan, Caballero, Charles
Calderon, Carter, Chesbro, Coto, Davis, De La Torre, De
Leon, Eng, Evans, Feuer, Fong, Fuentes, Furutani,
Galgiani, Hall, Hayashi, Hernandez, Hill, Huffman, Jones,
Bonnie Lowenthal, Ma, Mendoza, Monning, Nava, V. Manuel
Perez, Portantino, Ruskin, Salas, Saldana, Skinner,
Solorio, Swanson, Torlakson, Torres, Torrico, Yamada,
John A. Perez
NOES: Adams, Anderson, Bill Berryhill, Blakeslee, Conway,
Cook, DeVore, Emmerson, Fletcher, Fuller, Gaines,
Garrick, Gilmore, Hagman, Harkey, Huber, Jeffries,
Knight, Logue, Miller, Nestande, Niello, Nielsen, Silva,
Smyth, Tran, Villines
NO VOTE RECORDED: Tom Berryhill, Lieu, Norby, Audra
Strickland, Vacancy
JJA:do 8/10/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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