BILL ANALYSIS                                                                                                                                                                                                    






           SENATE TRANSPORTATION & HOUSING COMMITTEE       BILL NO: SB 811
          SENATOR ALAN LOWENTHAL, CHAIRMAN               AUTHOR:  desaulnier
                                                         VERSION: 4/13/09
          Analysis by:  Jennifer Gress                   FISCAL:  yes
          Hearing date:  April 14, 2009









          SUBJECT:

          Specially constructed vehicles:  emissions standards and testing

          DESCRIPTION:

          This bill requires the Department of Motor Vehicles (DMV) to  
          register specially constructed vehicles previously registered  
          outside this state that apply for registration in California to  
          be assigned the model year of the calendar year the vehicle was  
          first registered.

          ANALYSIS:

          Existing law prohibits the operation upon public highways any  
          motor vehicle that has not been registered with DMV.  Existing  
          law requires vehicles that have been sold by one individual or  
          entity to another or that have been previously registered in  
          another state to be re-registered with DMV.  In registering a  
          vehicle that had been previously registered in another state,  
          DMV grants "full faith and credit" to the out-of-state  
          certificate of title and thus uses the information on that  
          document to register the vehicle in this state.  An application  
          for registration shall be accompanied by payment of a sales and  
          use tax that is based upon the vehicle's value and a certificate  
          of compliance indicating that the vehicle has passed its smog  
          inspection.  

          To meet federal air quality standards, existing law requires  
          that California-registered, gasoline-powered cars and light-duty  
          trucks undergo biennial smog inspections to measure motor  
          vehicle-related pollutants.  New vehicles six model-years old  




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          and newer, vehicles with a pre-1976 model year, electric  
          vehicles, large commercial vehicles, motorcycles, and until  
          January 1, 2010, diesel vehicles are exempt from the smog check  
          program. 

          The current smog inspection involves testing for the gaseous  
          emissions of hydrocarbons, carbon monoxide, and oxides of  
          nitrogen.  Emissions standards have become more stringent over  
          time and are established by model year.  For example, a 2007  
          model year vehicle must produce fewer emissions to pass its smog  
          inspection than a 1990 model year vehicle.  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. 

          Under existing law, DMV is authorized to register up to 500  
          specially constructed vehicles.  A specially constructed  
          vehicle, sometimes referred to as a "kit car," is defined as a  
          vehicle that is "built for private use, not for resale, and is  
          not constructed by a licensed manufacturer or remanufacturer."  

          Upon registration with DMV, a specially constructed vehicle  
          shall be inspected by smog inspection facilities authorized to  
          perform "referee" functions for the purposes of determining the  
          vehicle model year or the engine year used in the vehicle and  
          thus the appropriate emission control application for that model  
          year.  In determining the model year of the vehicle or the  
          engine (the vehicle owner may choose whether the model year  
          determination is based on the vehicle or on the engine), the  
          referee shall compare the vehicle or engine to those of the era  
          it most closely resembles.  The referee shall assign the 1960  
          model year if the vehicle or the engine does not sufficiently  
          resemble a previously manufactured vehicle or engine.  

          If DMV receives an application for registration of a specially  
          constructed passenger vehicle or pickup truck after it has  
          already registered 500 such vehicles during that calendar year,  
          and the vehicle has not been previously registered, DMV shall  
          assign the vehicle the same model year as the calendar year in  
          which the application is submitted for purposes of determining  
          emissions control equipment and inspection requirements for the  
          vehicle.  This subjects the vehicle to the more stringent  
          emission standards of a later model year.  Vehicle owners that  
          were not registered as specially constructed may re-apply for  
          registration as a specially constructed vehicle in future years.  




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           If those efforts are successful, then the vehicle would be  
          subjected to the inspection process whereby an authorized  
          referee determines the model year of the vehicle or its engine,  
          which is likely to result in less stringent emission standards.

           This bill  requires DMV to register specially constructed  
          vehicles previously registered outside this state that apply for  
          registration in California to be assigned the model year of the  
          calendar year the vehicle was first registered.
          
          COMMENTS:

           1.Purpose  .   According to the sponsor, the California Office of  
            the Attorney General, several states have registration laws  
            that allow a specially constructed vehicle to be assigned a  
            certificate of title bearing the same model year designation  
            as the vehicle it most closely resembles.  A California  
            resident who built in 2008 a kit car designed to resemble a  
            1965 vehicle can first register his or her vehicle in another  
            state, be assigned the 1965 model year, and then re-register  
            the vehicle in California as a 1965 vehicle, allowing the  
            vehicle to avoid smog inspection requirements.  

            The specially constructed vehicle industry is aware of this  
            loophole and the Attorney General's Office has seen a rise in  
            California residents who are purchasing these vehicles  
            out-of-state and returning them to California to avoid  
            emission requirements.  Based un the Attorney General's  
            Office's prior investigations, it is estimated that between  
            3,000 and 5,000 specially constructed vehicles will be brought  
            into California every year that will not be required to comply  
            with California's vehicle emission requirements.   
            Additionally, as long as this loophole exists, it is believed  
            that the California-based kit car industry will suffer as  
            people seeking to avoid California emissions standards will  
            simply stop purchasing vehicles within the state and instead  
            purchase and take delivery of specially constructed vehicles  
            out-of-state.

            By assigning the model year using the first year of  
            registration, rather than the year on the title, to a  
            specially constructed vehicle coming into this state, this  
            bill will close this loophole and treat all specially  
            constructed vehicles equally for emission and inspection  
            purposes, regardless of whether they were first registered in  
            California or another state.  




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           2.How the loophole works  .  The Attorney General's Office has  
            identified multiple pathways by which a California resident  
            may first register his or her vehicle in another state, some  
            legal, some not.

            Creation of fraudulent out of state title:  Using a computer,  
            a person can create fraudulent title documents.  In California  
            the Attorney General has a number of cases were fraudulent  
            title documents were created for specially constructed  
            vehicles to avoid emission requirements and taxes and fees.   
            DMV does not inquire as to the authenticity of registration  
            documents or inquire with the foreign jurisdiction if the  
            vehicle was previously registered.  The Attorney General's  
            Office reports that it has cases involving the arrest of  
            individuals whose sole business was selling these fake  
            registration documents.  This process is a crime.  

            Non-title States/Title-washing: A number of states register  
            vehicles that are within their jurisdiction without title  
            simply using the bill of sale.  Fraudulent registration  
            services abuse this process and, for a set fee, will  
            "purchase" the vehicle from the owner.  The purchase documents  
            will include the price, vehicle description, and VIN.  The  
            "purchase" is a sham transaction as the vehicle never leaves  
            the owner's possession.  The registration service will then  
            submit these documents to that state's department of motor  
            vehicles and generate title documents.  The vehicle is then  
            resold to the owner who then uses these documents to register  
            the vehicle in California.  This process is a crime.
           
            California variation on non-title:  A California registration  
            service will submit false documents to DMV stating that the  
            vehicle has been in storage for more then seven years and that  
            the title has been lost.  (DMV vehicle records expire and are  
            purged over the passage of time.)  The registration service  
            verifies a vehicle's identification number and provides  
            statements signed under penalty of perjury that the vehicle is  
            owned by the registered owner.  DMV creates new title  
            documents and the vehicle is registered.  The Attorney  
            General's Office identified several vehicles registered as  
            1965 vehicles using this process.  This process is a crime.
           
            Non-resident registration.  A number of states allow  
            non-residents to register vehicles in their state.  If these  
            non-resident states allow a specially constructed vehicle to  




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            be registered legally as the model year it replicates, a  
            California resident can register their specially constructed  
            vehicle in that state and then transfer the registration to  
            California.  California will honor the out-of-state  
            registration and emission testing is avoided.  This process is  
            legal.
           
            Resident registration through a limited liability corporation  
            (LLC).  In those states requiring that only residents of that  
            state may register vehicles, a resident from another state can  
            nonetheless register a vehicle in that state by establishing  
            an LLC there.  In some states, an LLC that is located in the  
            state is considered a person under that state's law.  As such,  
            the LLC can be used to purchase and register the vehicle  
            within the state.  Under this scenario, a California resident  
            creates the LLC (via an attorney who charges a fee), registers  
            the vehicle legally in that state, and then transfers  
            registration documents to California to avoid emissions  
            standards.  This process is legal. 
           
           3.Determining original year of registration  . This bill requires  
            DMV to assign to specially constructed vehicles that were  
            previously registered outside this state the model year of the  
            vehicle's original registration, which in many cases is  
            expected to be different from the year contained on the  
            vehicle owner's certificate of ownership. The ease with which  
            a vehicle owner and DMV are able to obtain appropriate  
            documentation and to verify this year may vary according to  
            various factors, including the registration and titling  
            procedures of the state from which the vehicle has been  
            previously registered.  The author or committee may wish to  
            consider an amendment to require DMV to assign as the model  
            year the calendar year that the vehicle is being registered in  
            California in those situations when it is unable to ascertain  
            the year that the vehicle was originally registered.  

          RELATED LEGISLATION

          SB 232 (Benoit) eliminates the 500 cap on the number of  
          specially constructed vehicles that DMV may register with a  
          model year of the vehicle the specially constructed vehicle most  
          closely resembles.  Senate Transportation and Housing Committee.
          
          AB 318 (Emmerson) permits BAR to charge a fee, not to exceed its  
          actual costs, for each referee inspection performed on specially  
          constructed vehicles participating in an amnesty program.  Set  




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          for hearing on April 14th in the Assembly Business and  
          Professions Committee.
          
           POSITIONS:  (Communicated to the Committee before noon on  
                     Wednesday,                              
                      April 8, 2009)

               SUPPORT:  Attorney General's Office (sponsor)
                         Coalition for Clean Air
                         Sacramento Metropolitan Air Quality Management  
          District
          
               OPPOSED:  None received.