Comment Log Display

I have the following comments with respect to the proposed adoption
of a new Section 95550, Title 17, California Code of Regulations
which would provide all Automotive Service Providers to perform
tire inflation service on all passenger vehicles that are brought
in for service or repair (the “Proposed Regulation”).

	1.  The Legislature has Unconstitutionally Delegated Uncontrolled
Power the Air Resources Board (the “Board”) to Adopt Regulations. 
  
	The Board cites the following sections of the California Health &
Safety Code as authority for Proposed Regulation: Sections 38510,
38560, 39600, and 39601.  Section 38510 simply charges the Board
with authority for “monitoring and regulating sources of
emissions”.  Section 38560 simply directs the Board to adopt
regulations that “shall achieve the maximum technologically
feasible and cost-effective reductions in greenhouse gas emissions
from those sources or categories of sources, in furtherance of
achieving the statewide greenhouse gas emissions limit.”  Section
39600 requires the Board to do all acts as may be necessary and
proper for the execution of its powers and duties.  Section 39601
requires that the Board adopt regulations in compliance with the
rulemaking provisions of the California Administrative Procedure
Act.
 
	Nearly all human activity involves the emission of greenhouse
gasses.  For example, the U.S. Environmental Protection Agency
estimates that the average person emits 2.3 pounds (1 kg.) of
carbon dioxide simply by breathing.  This means that Californians
emit approximately 14 million metric tons of carbon dioxide per
year just by breathing.  Other activities, whether personal or
commercial, will almost invariably result in the emission of carbon
dioxide or other greenhouse gases.  

	 Because the legislature has bestowed on the Board the authority
to regulate greenhouse gas emissions, it has delegated to the Board
authority to regulate virtually all human activity.  Moreover, the
legislature has given the Board absolute discretion under these
statutes.   Thus, the legislature has provided no limits on what
the Board can regulate or standards for how the Board regulates. 
Because the legislature’s delegation to the Board is so broad,
there is simply no way for a reviewing court, or anyone else, to
determine whether the Board has kept within its delegated
authority.  For these reasons, the statutes cited by the Board as
authority for the Proposed Regulation constitute an
unconstitutional delegation of legislative power.  See Dominguez
Land Corp. v. Daugherty, 196 Cal. 468, 484 (1925) (“It is well
settled that the legislature may commit to an administrative
officer the power to determine whether the facts of a particular
case bring it within a rule or standard previously established by
the legislature for his governance . . . . If, however, no standard
by which the officer is to be governed be prescribed by the
lawmakers, then there is an attempt to entrust a mere
administrative officer with the plenary power of the legislature,
and there will then be no guard against possible arbitrary
action.")  and People’s Federal Savings & Loan Association v. State
Franchise Tax Board, 110 Cal. App. 2d 696, 700 (1952) (“The
delegation of such uncontrolled power was void as an attempt to
delegate legislative power to an administrative officer.”).

        The issue of unfettered delegation is not merely academic.
 The Board is not elected.  Thus Board members are not directly
accountable to the People of California.  Further, the absence of
any standards makes it all but impossible for a court to
meaningfully review the Board's actions.  
  
	2.  The Changes in the Modified Text are Substantial and are not
Sufficiently Related to the Original Text.

	The modified text of the Proposed Regulation makes several
substantial changes.  For example, the modified text includes a new
requirement that customers affirm certain matters in order to
decline service.  Further, the modified text includes a new
requirement with respect to disclosures on the vehicle service
invoice.  A reasonable member of the directly affected public is an
ordinary consumer.  Ordinary consumers would not have determined
from the original notice that these changes would have resulted.  1
CCR Section 42.  Accordingly, the modified text should have been
made available for at least 45 days.  Cal. Govt. Code Sections
11346.4 & 11346.8(c).

	3.  The Proposed Regulation will Adversely Affect Consumers.
  
	The Proposed Regulation will adversely affect consumers.  In most
cases, consumers will not be specifically seeking tire inflation
services when bringing their vehicle to an automotive service
provider.  Thus, they are unlikely to have engaged in
comparison-shopping for tire inflation services before bringing the
car in for service.  Automotive service providers are likely to
take advantage of this fact by telling the consumer that they are
legally obligated to perform a tire check and inflation and that
they must note any refusal of the service on the invoice.  Nothing
in the Proposed Regulation requires the automotive service provider
to disclose to the consumer (either orally or in writing) that the
service may be declined.  Moreover, a consumer who has taken the
time to take his vehicle to the provider is not likely to want to
incur additional time and expense in taking his car to another
provider who offers the service at a lower cost.   As a result,
significant price gouging is likely to occur if the Proposed
Regulation is adopted.

        4.  The Board is Implicitly Concluding that the People of
California do not, and Cannot, make Rational Decisions.

        Assuming the Board's assumptions concerning the costs
associated with under inflated tires are correct and that the
public would save money through proper inflation, the Board does
explain why it believes that people do not and will not maintain
proper tire inflation.  Thus, implicit in the Board's Proposed
Regulation is the conclusion that people will not, even if
informed, make economically rational decisions. There is no basis
for the Board's view that Californians are inherently unable to
make rational decisions or properly maintain their own property.   



        In conclusion, the Proposed Regulation represents an
unconstitutional delegation of legislative power to the Board; the
modified text is not sufficiently related to the originally
proposed text; the Proposed Regulation will likely result in price
gouging; and the Board should not presume that the people cannot
make rational decisions.

Very Truly Yours,

Keith Paul Bishop