             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.



                                1.                           90-923

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.) 

                                3.                            90-923

          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.

                                6.                            90-923

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. 

                                7.                            90-923
