The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 90-923
of :
:
DANIEL E. LUNGREN : AUGUST 7, 1991
Attorney General :
:
ANTHONY S. DaVIGO :
Deputy Attorney General :
:
__________________________________________________________________
THE HONORABLE ROBERT B. PRESLEY, MEMBER OF THE SENATE,
has requested an opinion on the following question:
May the Bureau of Automotive Repair direct licensed smog
check stations to deny a certificate of compliance to the owner of
a vehicle if the vehicle's emission control system contains an
aftermarket component that has not been approved for installation
on the vehicle by the State Air Resources Board under Vehicle Code
section 27156?
CONCLUSION
The Bureau of Automotive Repair may direct licensed smog
check stations to deny a certificate of compliance to the owner of
a vehicle if the vehicle's emission control system contains an
aftermarket component that has not been approved for installation
on the vehicle by the State Air Resources Board under Vehicle Code
section 27156.
ANALYSIS
Under California's motor vehicle inspection and
maintenance program (Health & Saf. Code, § 44000 et seq.)1 some 17
of the state's 22 million motor vehicles are presently required to
1
All section references are to the Health and Safety Code
unless otherwise specified.
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have a biennial "smog check" of their emission control system.
(Cf. § 44011; Rapoport, Sins of Emission (May 1991) California
Magazine, p. 61.) The program is enforced and administered by the
Bureau of Automotive Repair ("Bureau") within the Department of
Consumer Affairs ("Department"). (§ 44001.5, subd. (a); cf.
§§ 44002, 44012.)
A smog check test determines whether the emission control
devices and systems required by law to be on a vehicle "are
installed and functioning correctly." (Cf. § 44012, subd. (a).)
As presently designed, it consists of (1) a visual inspection of
the vehicle to determine whether all the emission control devices
and systems required by state and federal law are installed
correctly, (2) an actual test of the vehicle's emissions of
hydrocarbons, carbon monoxide, and carbon dioxide; and (3) a
"functional" check of certain components of the vehicle's emission
control system, such as a probing the fuel fillpipe lead restrictor
and checking the emission control warning indicators. (See Cal.
Code Regs., tit. 16, § 3340.42.) If a vehicle passes the test, a
licensed smog check station must issue a certificate of compliance
for the vehicle; if the vehicle does not, a certificate may not be
issued. (§ 44015.)
The question presented for analysis is whether a vehicle
may be denied a certificate of compliance because it contains an
"aftermarket part" in its emission control system that has not been
approved for installation by the State Air Resources Board
("Board") pursuant to section 27156 of the Vehicle Code. An
"aftermarket part" is one that replaces, modifies, or is added to
the original manufacturer's equipment. (Cf. Cal. Code Regs., tit.
16, § 1900(b)(1), (10), (13).) Under section 27156 of the Vehicle
Code, it is illegal to (1) modify or alter any required motor
vehicle pollution control device or (2) to install a device as part
of a required motor vehicle pollution control system which alters
or modifies the original design or performance of the system,
unless the Board has found that the particular alteration or
modification does not reduce the effectiveness of the system or
does not result in higher emission levels from the vehicle than
those permitted for its model year. The aftermarket part here is
one which has not been approved and exempted under section 27156 of
the Vehicle Code. We refer to it as an "unexempted aftermarket
part."
Our inquiry into the Bureau's authority concerning the
issuance of certificates of compliance 2 is governed by the basic
2
The Bureau's directives to individual smog check stations may be
"enforced" by the assessment of civil penalties, by suspending,
revoking, or not renewing the station's license, and by suspending
or revoking the qualifications of the station's mechanics.
2. 90-923
rule that administrative agencies have only such powers as have
been conferred on them, expressly or by implication, by the
Constitution or statute. (Gov. Code, § 11342.1;Wildlife Alive v.
Chickering (1976) 18 Cal.3d 190, 205; Ferdig v. State Personnel Bd.
(1969) 71 Cal.2d 96, 103; California State Restaurant Assn. v.
Whitlow (1976) 58 Cal.App.3d 340, 346-347.) An administrative
agency may not make a rule or regulation that alters, enlarges, or
impairs the terms of the enabling legislation (Whitcomb Hotel, Inc.
v. Cal.Emps. Com. (1944) 24 Cal.2d 753, 757; Selby v. Department of
Motor Vehicles (1980) 110 Cal.App.3d 470, 474-475), and an
administrative rule or regulation that does so is void (Cooper v.
Swoap (1974) 11 Cal.3d 856, 864; Morris v. Williams (1967) 67
Cal.2d 733, 748; 64 Ops.Cal.Atty.Gen. 425, 429-430 (1981)).
Section 44010 provides that "the motor vehicle inspection
program shall provide for privately operated stations which shall
be ... authorized to issue certificates of compliance ... to
vehicles which meet the requirements of [sections 44000-44071]."
Section 44012 sets forth what the test at a smog check station is
to entail:
"The test at the smog check stations shall be
performed in accordance with procedures prescribed by the
department [of Consumer Affairs] pursuant to Section
44013 and shall include all of the following:
"(a) A determination that emission control devices
and systems required by state and federal law are
installed and functioning correctly in accordance with
the test procedure adopted pursuant to subdivision (b) of
Section 44013.
"(b) ....
"(c) For other than diesel-powered vehicles, a test
of the vehicle's exhaust emissions of hydrocarbons,
carbon monoxide, and carbon dioxide in an idle mode ...
in accordance with the procedure prescribed by the
department.
"(d) ...." (Emphasis added.)
Subdivision (b) of section 44013 provides in part:
"The [Department], in cooperation with the [Board],
shall research and prescribe test procedures to be
applied in inspecting motor vehicles under this chapter,
which procedures shall be simple, cost effective, and
consistent with the requirements of section 44012...."
(§§ 44030, 44035, 44050, 44051, 44055.)
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We believe that the smog check test contemplated by the
Legislature permits the Bureau to direct smog check stations to
deny certificates of compliance when a vehicle has been equipped
with an unexempted aftermarket part in its emissions control
system, even though the vehicle has all required emission-related
components installed and passes the emissions test portion of the
smog check.
We first address what is meant by a device "required by
state and federal law" to be installed on a vehicle. The inquiry
is necessary because one cannot find in state or federal law a
complete litany of all particular devices that are "required" to be
placed in the emission control system of a particular vehicle.
(Cf. 54 Ops.Cal.Atty.Gen. 172, 175 (1971).) While state and
federal law may require that vehicle manufacturers have certain
systems and devices present in their vehicles, and while they may
require that the systems meet stringent emission standards, the
requirements do not mandate that a particular type of system be
installed on a particular vehicle. Thus, the emission control
systems that are developed by manufacturers vary in strategy and
design. Needless to say, if the systems that are developed vary,
so will their component devices.
We faced a similar problem in 54 Ops.Cal.Atty.Gen. 173,
supra, where, as here, we had to determine whether a particular
device (an evaporative loss control device) was one that was
"required" to be installed on a vehicle under a statutory scheme
which only set forth an emissions limit for a particular aspect of
a vehicle's pollution control system (the maximum fuel evaporative
losses from the fuel system) and did not set forth particular
devices that were required to achieve it. The statutory scheme was
the Pure Air Act of 1968 (then §§ 39080-39201, see now § 43000 et
seq.) as implemented by section 27156 of the Vehicle Code --which,
again, speaks of modifying or altering "required" motor vehicle
pollution control devices. We concluded that the tenor of the
entire statutory plan was such that a device placed on a vehicle by
the manufacturer to meet an emissions control requirement was a
device that the law "required" to be on the vehicle. (54
Ops.Cal.Atty.Gen. at 176-177.)
Both the statutory scheme of our prior opinion and the
one here were designed to reduce air pollution from vehicular
emissions. (Compare § 43000 with § 44000.) Since similar phrases
used in statutes on like subjects will be given the same
interpretation in the absence of contrary indications of
legislative intent (cf. Hunstock v. Estate Development Corp. (1943)
22 Cal.2d 205, 210-211; People v. Hill (1980) 103 Cal.App.3d 525,
533 fn. 4; Estate of Hoertkorn (1979) 88 Cal.App.3d 461, 465-466),
we can presume that when the Legislature spoke of "emission control
devices and systems required by state and federal law" in
subdivision (a) of section 44012, it also had in mind, as a
starting point, those devices and systems which the manufacturer
4. 90-923
originally configured for a vehicle's emissions control system to
meet federal and state quantitative emissions requirements and
installed on the vehicle when it was assembled. As we shall
demonstrate, however, the phrase may also be construed to include
aftermarket parts installed in the emission control system of a
vehicle.
Under section 27156 of the Vehicle Code it is illegal to
operate a motor vehicle that is required to be equipped with a
motor vehicle pollution control device unless the vehicle is
equipped "with the required ... device ... correctly installed and
in operating condition."3 The section also makes it illegal to
modify or alter any required device. Our aftermarket part would do
so. (Cf. Cal. Code Regs., tit. 13, § 1900(b)(1), (10).)
But Vehicle Code section 27156 also recognizes that
original manufacturer equipment for an emission control system can
be replaced during a vehicle's lifetime without necessarily
degrading the efficacy of the system. The section provides that
its prohibitions do not apply to:
"...an alteration, modification, or modifying
device, apparatus, or mechanism found by resolution of
the State Air Resources Board either: (1) To not reduce
the effectiveness of any required motor vehicle pollution
control device; or (2) To result in emissions from any
such modified or altered vehicle which are at levels
which comply with existing state or federal standards for
that model year of the vehicle being modified or
converted."
The Legislature has thus left to the Board the determination of
whether an aftermarket part will degrade an emission control
system, and pursuant thereto the Board conducts an aftermarket
3
Although the term "motor vehicle pollution control device" is
not defined in section 27156 or any other section of the Vehicle
Code, the section does refer, inter alia, to a device required
"under Part 5 (commencing with section 43000) of Division 26 of the
Health and Safety Code." For purposes of that Division, the term
is defined to mean "equipment designed for installation on a motor
vehicle for the purpose of reducing the air contaminants emitted
from the vehicle, or a system or engine modification on a motor
vehicle which causes a reduction of air contaminants emitted from
the vehicle" (§ 39040) and we can safely presume the Legislature at
least had that definition in mind for section 27156 of the Vehicle
Code.
5. 90-923
parts exemption program. (Cal. Code Regs., tit. 13, § 2220 et
seq.)4
The evaluation of aftermarket parts by the Board and the
Bureau's smog check program are integrally related. Both statutory
schemes must be harmonized and the application of one statute may
not ignore the requirements of the other if at all possible. (Cf.
Tripp v. Swoap (1976) 17 Cal.3d 671, 679; Fuentes v. Workers' Comp.
Appeals Bd. (1976) 16 Cal.3d 1, 7; Lara v. Board of Supervisors
(1976) 59 Cal.App.3d 399, 408-409; People v. Ashley (1971) 17
Cal.App.3d 1122, 1126.) Indeed, the Legislature has specifically
directed the Bureau and the Department to cooperate with the Board
in prescribing the test procedures to be applied in inspecting
motor vehicles in the smog check program. (§ 44013, subd. (b).)
In 54 Ops.Cal.Atty.Gen. 173, supra, we observed that in
California vehicular air pollution is controlled at three levels:
"...air pollution control is achieved by (1)
approval of the entire vehicle, including the various air
pollution control systems in ... new automobiles prior to
the time of their initial sale, (2) the prohibition of
their use without such systems and (3) the prohibition
against alteration of the original air pollution control
systems on the approved automobile unless an exemption
has been given by the State Air Resources Board." (54
Ops.Cal.Atty.Gen. at 175-176; emphasis added.)
We believe that the Legislature meant for the aftermarket
parts exemption program to be relied upon and play a part in the
smog check program. Particularly we conclude that the reference to
"emission control devices ... required by state and federal law to
be installed ... correctly" contained in section 44012 means
devices that were originally part of a vehicle's emissions control
system when it was manufactured or devices that were subsequently
approved for installation pursuant to Vehicle Code section 27156.
A corollary of this is that unless an aftermarket part has been so
approved, it would not be an "emission control device[] ...
required by state ... law [to be] installed ... correctly." Since
a smog check test is meant to determine whether the emission
control devices are "installed ... correctly," the presence of an
unexempted aftermarket part would cause a vehicle to fail a smog
4
Exemptions are based on testing of a part, undertaken at the
behest of the manufacturer, to demonstrate that the part does not
adversely affect vehicular emissions. An emissions-related part is
defined as "any automotive part which affects any regulated
emissions from a motor vehicle which is subject to California or
federal emissions standards ...." (Cal. Code Regs., tit. 13,
§ 1900(b)(3).) A list of the specific aftermarket parts that have
received exemption comprises more than 60 pages.
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test because the required determination could not be made. If such
part is found, a certificate of compliance must not be issued.
(§ 44015, subd. (a).)5
The same result may also be reached by a different route.
Section 24002 of the Vehicle Code makes it unlawful "to operate any
vehicle ... which is not equipped as required by [the Vehicle]
Code." Section 27156 of the Vehicle Code makes an unexempted
aftermarket part illegal equipment for a vehicle, and thus one
equipped with such a part may not be operated in this state. In
order for a vehicle to be driven in California, it must first be
registered with the Department of Motor Vehicles (Veh. Code,
§§ 4000(a)(1), 4000.4), and for that registration to be obtained,
a certificate of compliance must first be obtained from a licenced
smog check station (Veh. Code, §§ 4000.1, 4000.2, 4000.3). These
Vehicle Code sections too must be harmonized. Thus we cannot
entertain the notion that the Legislature intended to forbid the
operation of vehicles that were not properly equipped (Veh. Code,
§ 24002), while at the same time having smog check stations issue
certificates of compliance for them to be registered and driven.
We therefore conclude that the Bureau may direct licensed
smog check stations to deny certificates of compliance to the
owners of vehicles that have been equipped with an aftermarket
component in the emission control system which has not been
approved for installation by the Board pursuant to section 27156 of
the Vehicle Code.
* * * * *
5
We would also note that section 44012, subdivision (a) sets
forth certain particulars of what a smog check is to "include."
The use of the word "include" normally is one of enlargement rather
than limitation (cf. People v. Western Air Lines, Inc. (1954) 42
Cal.2d 621, 639; Paramount Gen. Hosp. Co. v. Natural Medical
Enterprises, Inc. (1974) 42 Cal.App.3d 496, 501; People v. Horner
(1970) 9 Cal.App.3d 23, 27), and so its use would indicate that the
Legislature did not mean to restrict the Bureau in "prescribing
[the] test procedures to be applied in inspecting motor vehicles"
in the smog check program. Accordingly, even if we did not bring
an aftermarket part within the rubric of being a "device required
by state law" to be installed correctly, we would conclude that the
Bureau would have the latitude to consider the phrase as having an
implied negative so as to forbid the installation of devices that
are prohibited by state law.
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