CARB approves ‘smog check’ regulation for in- and out-of-state trucks operating in California

The California Air Resources Board last week approved a “smog check” regulation for medium- and heavy-duty trucks and buses. The rule still has to be approved by California's Office of Administrative Law before it can take effect.

The regulation, dubbed the Heavy-Duty Inspection and Maintenance program, will apply to more than 1 million vehicles operating in the state, whether registered in- or out-of-state, CARB said. The twice-a-year inspections are meant to ensure that emissions control systems maintain the same efficiency as the vehicle ages. The Board also directed a four-times-per-year testing frequency for trucks with on-board diagnostics to be phased in over time.

Unlike the state's current Periodic Smoke Inspection Program (PSIP), the new program will also include independent owner-operators who were exempt from the PSIP.

California-based truck owners will be required to comply with the regulation in order to register their trucks in the state, and an annual $30 fee per registered vehicle will be collected as part of the program for testing, which will be deposited into a new Truck Emission Check Fund that will be used for purposes of administering the program. Out-of-state truck owners who intend to operate in California will also be required to abide by the regulation, including having to pay the $30 compliance fee.

Joe Rajkovacz, director of government affairs for the Western States Trucking Association, believed charging the same $30 fee to both in-state and out-of-state truck owners to be unconstitutional. The American Trucking Associations and California Trucking Association, in comments made on CARB's proposal, agreed with Rajkovacz and said the compliance fee should be apportioned for interstate vehicles.

"The Supreme Court held decades ago that the Commerce Clause of the U.S. Constitution precludes states from imposing these kinds of flat annual fees on commercial trucks," the groups said in their comments. "As the Court observed, such flat fees 'are plainly discriminatory' against interstate commerce because 'in practical effect' local users will routinely obtain a greater benefit, in cost-per-mile terms, than out-of-state users."

The proposed $30 flat fee, then, "would have 'a forbidden impact on interstate commerce because it exerts an inexorable hydraulic pressure on interstate businesses to ply their trade within [California],'" ATA and CTA added.

ATA and CTA also raised concern about a provision in the rule that would require drivers to keep a certificate of compliance with the regulation in-cab that they could present to inspectors upon request.

"This requirement, if implemented, would run afoul of federal law that preempts state and local identification requirements for commercial vehicles, with limited exceptions not applicable here," the groups said. Specifically, federal law preempts any state law or regulation "that requires a motor carrier, motor private carrier, freight forwarder, or leasing company to display any form of identification on or in a commercial motor vehicle.”

The program will roll out a statewide network of roadside emission monitors to screen for high-emitting trucks, starting with the San Joaquin Valley and South Coast air quality districts and expanding over time. Rajkovacz raised some concerns over data privacy in relation to the roadside emissions monitoring devices grabbing data from trucks.

"This opens up what I consider to be a Pandora’s Box of what I find to be, myself, an invasion of privacy at an epic level we haven’t seen before in the United States," he said. "I view it as proprietary data, and I tend to think most owner-operators think of it that way, too. ... A [driver] goes through reader and no data passes," between the truck and the reader, "they can be pulled over to verify compliance. It's an instant targeting system. If a truck goes by, dumps data, [inspectors] can tell if it complied with registration requirements. It's all very Orwellian, in my view."

Heavy-duty vehicle owners will be able to complete the required test and deliver the information remotely without having to travel to designated testing locations, CARB said. For telematics users, with an onboard diagnostics (OBD) inspection that draws emissions control performance data from the vehicle’s internal computer, an inspection can be completed automatically without even taking the vehicle out of operation. OBD systems have been required by CARB on heavy-duty vehicles since 2013.

Rajkovacz noted that unless a truck owner runs a rig bought new with a subscription to the engine OEM's onboard diagnostics program included with the purchase, the owner will likely have to either pay to subscribe to the service themselves or go to a dealer and pay to get an ECM download. He added that used truck purchases likely don't include a subscription to the OEM's service, so those owners would also have to pay out of pocket to obtain the ECM emissions data.

"Unless you have a new truck, you will either have to subscribe to a service to do this, or go the old-fashioned way of an ECM download," he said. "None of that comes without cost."

The rule states that older trucks without on-board diagnostic systems would continue the current smoke opacity testing requirements with the addition of a vehicle emissions control equipment inspection.

The rule also requires that freight contractors, brokers and freight facilities only work with trucks that are compliant with the rule.

The Heavy-Duty Vehicle Inspection Program will continue to augment new testing requirements with inspections and random testing carried out at border crossings, California Highway Patrol weigh stations, fleet facilities and randomly selected roadside locations, CARB said.

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