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Regulatory Actions Hearing - December 2006

NOTICE IS HEREBY GIVEN that the Department of Consumer Affairs/Bureau of Automotive Repair (hereinafter “Bureau”) is proposing to take the action described in the Informative Digest. Any person interested may present statements or arguments orally or in writing relevant to the action proposed at hearings to be held at:

Written comments, including those sent by mail, facsimile, or e-mail to the addresses listed under Contact Person in this Notice, must be received by the Bureau at its office not later than 5:00 p.m. on December 13, 2006, or must be received by the Bureau at the above referenced hearing. Comments sent to persons or addresses other than those specified under Contact Person, or received after the date and time specified above, regardless of the manner of transmission, will not be considered or included in the record of this proposed regulatory action. The Bureau, upon its own motion or at the instance of any interested party, may thereafter formally adopt the proposals substantially as described below or may modify such proposals if such modifications are sufficiently related to the original text. With the exception of technical or grammatical changes, the full text of any modified proposal will be available for 15 days prior to its adoption from the person designated in this Notice as contact person and will be mailed to those persons who submit oral or written testimony related to this proposal or who have requested notification of any changes to the proposal.

AUTHORITY AND REFERENCE

Pursuant to the authority vested vested by Section 9882 of the Business and Professions Code and Sections 6253 and 6253.4 of the Government Code; and to implement, interpret or make specific Sections 27, 129, and 9882 of the Business and Professions Code, and Sections 6253, 6253.1 and 6254 of the Government Code; as they apply to the Bureau, the Bureau is proposing to adopt the following changes to Article 1 of Chapter 1 of Division 33 of Title 16 of the California Code of Regulations:

INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW

The Bureau of Automotive Repair was established within the California Department of Consumer Affairs in 1972 with the enactment of the Automotive Repair Act . The Bureau was created by Chapter 1578, Statutes 1971 (Senate Bill 51, Beilenson), which mandated a statewide automotive repair consumer protection program. In the furtherance of its mandate, the Bureau administers statewide licensing and enforcement programs.

Through its statewide offices, the Bureau conducts consumer protection services related to the automotive repair and Smog Check programs. Bureau representatives register, license and regulate automotive repair dealers, lamp and brake stations and adjusters, and Smog Check stations and technicians. The Bureau accepts and mediates complaints from the public, investigates violations of the Automotive Repair Act, Smog Check laws, and associated regulations. When appropriate, cases are referred to the Attorney General’s office for administrative action, or to law enforcement authorities for civil or criminal prosecution. The Bureau shares the commitment of the DCA to ensuring that consumers are provided information about licensees and registrants in a timely, fair and equitable manner.

The CPRA states that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” The CPRA provides for maximum public access to information in the government's possession. It also provides that disclosure of information about complaints is not mandatory under the CPRA . However, such information may be subject to public disclosure at the discretion of the agency in possession of that information. The standards for disclosure of consumer complaint information recommended by DCA are consistent with the intent of the CPRA and the Consumer Affairs Act (CAA). The CAA establishes one of the DCA's most important consumer protection mandates: "educating and informing the consumer to ensure informed consumer choice in the marketplace." In light of the CPRA and the CAA, DCA and the Bureau believe there is a compelling state interest to disclose information regarding certain consumer complaints as soon as practical to help consumers make informed decisions.

It should also be noted that while the Information Practices Act (IPA) and Article 1, Section 1 of the California Constitution place limitations on releasing personal information, they do not preclude the release of general information about consumer complaints. It is DCA’s and the Bureau’s view that disclosing the fact that a consumer complaint exists is consistent with the personal privacy protections at issue in the IPA, as those privacy rights apply to personal identifying information, not to information relating to the conduct of business.

In keeping with the maximum disclosure intent of the CPRA and the CAA, it is the policy of the Bureau to provide registrant and licensee information to consumers consistent with the minimum standards recommended by DCA. In the past, in addition to license status and disciplinary history, the Bureau has disclosed consumer complaint information when the complaint has resulted in the issuance of a NOV to the registrant or licensee. The Bureau has discontinued its use of the NOV as a method of informally notifying a registrant or licensee of minor or technical violations confirmed in the review and processing of consumer complaints. As a result, the Bureau’s regulations must be updated to delete the reference to the NOV and the disclosure of consumer complaints with NOVs. Instead, the Bureau intends to follow the recommended standards of DCA as the determining factors in disclosing complaint information.

The Bureau remains committed to ensuring that consumers are provided appropriate information about the status of a registrant or licensee, and any administrative actions taken against that registration or license. Every effort is made to provide such information in a timely, fair and equitable manner. The proposed action is intended to update and establish clear standards for disclosing such information.

CURRENT REGULATION

Existing regulation in the California Code of Regulations, Title 16, Division 33, Chapter 1, Article 11, are summarized as follows:

• Section 3303.1 implements DCA’s policy regarding the availability of information within the Bureau and, in subsection (a), describes the information the Bureau will provide to the public concerning its licensees, upon request. That information includes disciplinary actions, license status and, unless it is determined that disclosure would be unduly prejudicial to a licensee, complaints.
• Subsections (b), (c) and (d) describe the type of information that the Bureau will provide in each of the three categories - complaints, disciplinary actions and license status – and the conditions under which the information will be provided.
• Subsection (e) provides for notification of the licensee when information is provided to a requestor about that licensee.
• Subsection (f) limits the volume of requests the Bureau will respond to from one requestor to no more that three (3) licenses per week.

EFFECT OF REGULATORY ACTION

The proposed action will make changes to existing regulation in the California Code of Regulations, Title 16, Division 33, Chapter 1, Article 11, as follows:

Section 3303.1 of Article 1 of Chapter 1 of Division 33 of Title 16 of the California Code of Regulations will be amended as follows:

1. Subsection (a) will be recast as an unnumbered introductory paragraph and will be amended to reflect the establishment of the Bureau’s general policy for making information available regarding registrations and licenses issued by the Bureau, administrative actions and complaints. The amendments specify that requests may be made by telephone, in person or in writing, including by facsimile or electronic mail transmission, provide for a response by the Bureau within ten (10) days of receipt of a written request for information, and provide that the Bureau shall provide the information in writing.

2. The current subsection (a) will be replaced with the provisions of the current subsection (d), with minor modifications that clarify what information will be provided regarding registrations or licenses. The requirement to include the reason for “termination” of a license will be eliminated.

3. The current subsection (b) will be renumbered as subsection (c) and will be replaced with revised and expanded provisions from the current subsection (c) that clarify the conditions under which the Bureau will disclose information about administrative actions and the information that will be provided.

4. The current subsection (c) will be renumbered as subsection (b) and will be replaced with revised and expanded provisions from the current subsection (a) that clarify the conditions under which the Bureau will disclose information about complaints and the information that will be provided. This amendment will eliminate references to a “waiver of confidentiality” and the issuance of a “Notice of Violation” (NOV).

5. The current subsection (d) will be replaced with a definition, for purposes of Section 3303.1, of the term “administrative action.”

6. The current subsection (e) will be repealed in its entirety.

7. The current subsection (f) will be repealed in its entirety.

8. Other nonsubstantive editorial, grammatical and conforming changes will also be made throughout Section 3303.1. These changes are necessary for clarification and consistency, and to conform to the amendments described above.

FISCAL IMPACT ESTIMATES

Fiscal Impact on Public Agencies Including Costs or Savings to State Agencies or Costs/Savings in Federal Funding to the State:

None.

Nondiscretionary Costs/Savings to Local Agencies:

None.

Local Mandate:

None.

Costs to Any Local Agency or School district for Which Government code Section 17561 Requires Reimbursement:

None.

Businesses Impact:

The Bureau has made an initial determination that the proposed regulatory action would have no significant statewide adverse economic impact directly affecting business, including the ability of California businesses to compete with businesses in other states.

The following studies/relevant data were relied upon in making the above determination:

The proposed action does not impose any requirement upon or require any action by any business. The proposed action merely re-establishes and modifies the Bureau’s existing policy on public access to information about registrants and licensees. This regulation does not require anything of any registrant or licensee. Neither does this regulation affect any non-registrant or -licensee. There is no reporting or recordkeeping requirement mandated, nor are there any performance standards imposed, technologies or equipment specified, nor specific actions or procedures prescribed.

Impact on Jobs/New Businesses:

The Bureau has determined that this regulatory proposal will not have any impact on the creation of jobs or new businesses, or the elimination of jobs or existing businesses, or the expansion of businesses in the State of California.

Cost Impact on Representative Private Person or Business:

The Bureau is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action.

Effect on Housing Costs:

None.

Effect on Small Business:

The Bureau has determined that the proposed regulations would not affect small businesses. The proposed action merely re-establishes and modifies the Bureau’s existing policy on public access to information about registrants and licensees. This regulation does not require anything of any registrant or licensee, whether it is a small business or not. Neither does this regulation affect any non-registrant or –licensee that might be a small business. There is no reporting or recordkeeping requirement mandated, nor are there any performance standards imposed, technologies or equipment specified, nor specific actions or procedures prescribed.

CONSIDERATION OF ALTERNATIVES

The Bureau must determine that no reasonable alternative to the regulation would either be more effective in carrying out the purpose for which the action is proposed or would be as effective and less burdensome to affected private persons than the proposal described in this Notice.

Any interested person may present statements or arguments orally or in writing relevant to the above determinations at the above-mentioned hearing.

INITIAL STATEMENT OF REASONS AND INFORMATION

The Bureau has prepared an initial statement of reasons for the proposed action and has available all the information upon which the proposal is based.

TEXT OF PROPOSAL

Copies of the exact language of the proposed regulations, and of the statement of reasons, and all of the information upon which the proposal is based, may be obtained at the hearing or prior to the hearing upon request from the Bureau of Automotive Repair at 10240 Systems Parkway, Sacramento, CA 95827.

AVAILABILITY AND LOCATION OF THE RULEMAKING FILE AND THE FINAL STATEMENT OF REASONS

All the information upon which the proposed regulations are based is contained in the rulemaking file, which is available for public inspection by contacting the person named below.

You may obtain a copy of the final statement of reasons once it has been prepared, by making a written request to the contact person named below or by accessing the website listed below.

CONTACT PERSON

Inquiries or comments concerning the proposed administrative action may be addressed to:

James Allen, Regulations Analyst
Bureau of Automotive Repair
10240 Systems Parkway
Sacramento, CA 95827
Telephone: (916) 255-3460
Fax No.: (916) 255-1369
E-mail: jim_allen@dca.ca.gov

The backup contact person is:

Debbie Romani
Bureau of Automotive Repair
10240 Systems Parkway
Sacramento, CA 95827
Telephone: (916) 255-3460
Fax No.: (916) 255-1369
E-mail: debbie_romani@dca.ca.gov