In North Carolina's vehicle safety and emissions inspection program, who decides whether a station's violation is Type I, II, or III, and can the DMV Commissioner delegate that decision to staff?

Plain-English summary

Frederick Aikens of the DMV Enforcement Section asked three questions about who controls the type designation (Type I serious, Type II minor, Type III technical) of an emissions-inspection violation and whether penalties can be modified after the fact.

Senior Deputy AG Reginald Watkins and Special Deputy AG Hal Askins concluded:

1. The Commissioner of Motor Vehicles is the statutorily designated decisionmaker. G.S. § 20-2 puts the Division of Motor Vehicles under the Commissioner. G.S. § 20-3 lets the Commissioner organize the work of the Division. G.S. § 20-183.8B and § 20-183.8E read together assign violation-type determination, penalty assessment, and administrative review to the Commissioner.

2. The Commissioner may delegate. Inspectors charge the initial violation in the field. Section staff then determine the violation category and penalty. A hearing officer (historically part of Enforcement Section staff) holds review hearings under § 20-183.8E. By March 1993 memoranda, Commissioner Killens designated three named employees (Bristle, Pruett, Moody) to conduct hearings under Article 3A. Those delegations had not been rescinded as of 1996.

3. Whether any Enforcement Section employee's decision is reviewable depends on the agency's chain of command and any superseding policy from the Commissioner. No statute either grants or strips the Enforcement Section Director of regulatory authority; any authority is derivative from the Commissioner's delegation.

Choosing between Type I, II, and III. The opinion lays out the decisional framework the Commissioner (or his designee) must follow when picking the violation type. The Division of Motor Vehicles carries the burden of proving the facts, including whether the act was intentional or merely negligent. Findings of fact must be supported by competent (relevant and admissible) evidence. The Commissioner then applies the law to the facts.

The illustration: an undercover officer presents a vehicle with a removed catalytic converter to an inspection station. The vehicle's electronic exhaust analysis comes back within parameters, so the station passes it without detecting the missing converter. Failure to perform the visual inspection or the exhaust analysis is a Type I violation under § 20-183.3(b), but failure to detect a missing part is not alone evidence that the visual inspection was skipped. Negligent failure to detect a tamper may warrant Type II. If the mechanic actually finds the missing converter and passes the vehicle anyway, that becomes Type I (intentional misconduct under § 20-183.8C(a)(1)).

Modifying a penalty after a final determination. Three discretion points exist: (a) the field inspection's initial charge; (b) administrative correction of discovered errors; (c) the formal § 20-183.8E hearing. Once the Commissioner makes a final determination supported by law and fact, he must uphold the statutory penalty. He cannot freely change the violation type after final determination unless the original conclusion was made in error or bad faith. The one caveat: the Commissioner can authorize a compromise settlement to resolve an appeal to the courts.

Rulemaking carve-out for additional designations. G.S. § 20-183.8C(d) authorizes the Commissioner to designate additional acts as Type I, II, or III, but the opinion advises that this be done through the rulemaking process, not by ad-hoc internal practice.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. North Carolina's vehicle inspection program has been reorganized several times since 1996, including the transfer of safety and emissions inspections to the Department of Public Safety and subsequent oversight changes. The specific violation categories, civil penalty amounts, and chain-of-command for hearings should be confirmed against current statutes and rules before any inspection station relies on the 1996 framework.

Background and statutory framework

North Carolina enacted Article 3A of Chapter 20 to consolidate vehicle safety and emissions inspection law. The inspection program is a federally driven compliance mandate under the Clean Air Act; failure to maintain an EPA-approved emissions inspection program in non-attainment areas would have triggered federal sanctions, including loss of highway funds. The state framework therefore has to be EPA-acceptable, which is why the opinion cross-references 40 C.F.R. § 51.364(a)(2) when discussing the Type I/II/III categories.

The federal regulatory frame requires states to grade inspection-station violations by severity and to impose penalties commensurate with the grade. North Carolina implemented this through § 20-183.8B (defining the categories) and § 20-183.8C (listing the specific acts within each). The opinion's principal contribution is twofold: clarifying that the Commissioner cannot personally hear every inspection-station case (delegation is permissible) and that once a category is finally determined, it cannot be changed by administrative whim.

The "tampered vehicle" scenario the opinion describes was a real enforcement pattern in the 1990s. Undercover DMV vehicles with deliberately removed or disabled emissions equipment were sent to stations to test whether inspectors would catch tamper indicators. The opinion's distinction between failure to perform the visual inspection (Type I) and failure to detect (potentially Type II) protected inspectors who performed the visual inspection in good faith but missed a clever tamper, while still penalizing the more serious cases of skipped or fraudulent inspections.

Common questions

Could a station appeal a Type I designation that it thought should have been Type II?

Yes, under § 20-183.8E. The administrative appeal goes to the Commissioner (or designated hearing officer). The hearing officer reviews the factual basis for the type assignment. The opinion says the Commissioner has discretion on facts but must apply the statutory definitions correctly. If the hearing officer concludes the original Type I was wrong, the type designation could be reduced. If sustained, the station's next step was judicial review under the Administrative Procedure Act.

Could the Commissioner just bump a Type I down to a Type II later as an act of grace?

Not as an act of grace. The opinion states that absent evidence the original conclusion was made in error or bad faith, there is no authority to change the type. The only exception is settling a court appeal through compromise. The Commissioner's discretion runs to the original fact-finding and law-application, not to post-final clemency.

Who is liable for the violation, the station owner or the mechanic?

The opinion does not address that question directly. G.S. § 20-183.8C identifies acts that constitute violations and refers to "a station or mechanic." In practice, civil penalties were typically assessed against the station's license and against the individual mechanic's inspection license, with both subject to suspension or revocation depending on the type.

Does the Commissioner have to make every Type I/II/III decision personally?

No. The Commissioner can delegate to Division employees as long as the delegation is documented and not inconsistent with statute. The 1993 Killens memoranda designating hearing officers were the operational example the opinion cited. Internal organizational charts and the Commissioner's policy memos govern the actual scope of delegated authority.

What if the Commissioner wanted to make a new act a Type I violation?

The opinion advised the Commissioner to use the § 20-183.8C(d) rulemaking process, not internal adjudicative discretion, to add to the list of designated violations. Ad-hoc designations through case-by-case decisions would bypass APA notice-and-comment requirements and could be challenged as substantive rulemaking outside the proper process.

Source

• Landing page: https://ncdoj.gov/opinions/authority-to-change-emissions-program-violation-designation/

Citations

• N.C. Gen. Stat. § 20-2
• N.C. Gen. Stat. § 20-3
• N.C. Gen. Stat. § 20-183.3
• N.C. Gen. Stat. § 20-183.6A
• N.C. Gen. Stat. § 20-183.8B
• N.C. Gen. Stat. § 20-183.8C
• N.C. Gen. Stat. § 20-183.8E
• 40 C.F.R. § 51.364
• State ex rel. Commissioner of Insurance v. North Carolina Rate Bureau, 300 N.C. 381, 269 S.E.2d 547 (1980)
• Dailey v. North Carolina State Board of Dental Examiners, 60 N.C. App. 441, 299 S.E.2d 473 (1983)
• State ex rel. Freeman v. Ponder, 234 N.C. 294, 67 S.E.2d 292 (1951)
• Wilson v. Ervin, 227 N.C. 396, 42 S.E.2d 468 (1947)
• State v. Tew, 326 N.C. 732, 392 S.E.2d 603 (1990)
• Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980)
• State ex rel. Utilities Commission v. Duke Power Co., 305 N.C. 1, 287 S.E.2d 786 (1982)

Original opinion text

1. Authority of the Director of DMV Enforcement to Change Emissions Program Violation Designations

The general powers and authorities of the Commissioner of Motor Vehicles (hereinafter "Commissioner") are found in G.S. §§ 20-2 and 20-3. G.S. § 20-2 provides that the Division of Motor Vehicles shall be administered by the Commissioner. G.S. § 20-3 states that the Commissioner, subject to the approval of the Secretary of the Department of Transportation, is charged with the organization and administration of the manner in which the work of the Division is conducted as he may deem necessary. A fair reading of these statutes allows the Commissioner to delegate his responsibilities to other employees of the Division.

The statutes governing the Safety and Emissions Inspection Program are in Article 3A, Part 2, Chapter 20 of the North Carolina General Statutes. In G.S. § 20-183.6A(a), the Legislature assigned to the Division of Motor Vehicles the responsibility for administering the safety and emissions inspection programs. In reviewing compliance by emissions program licensees, G.S. § 20-183.8B grants to the Division the authority to take remedial and punitive actions for violations. G.S. § 20-183.8E provides that an administrative appeal from any action taken by the Division under Article 3A, Part 2 of Chapter 20 is to the Commissioner. The Commissioner is directly assigned the responsibilities of program administration, compliance enforcement, penalty assessment and administrative review. It is, therefore, the responsibility of the Commissioner to make a case-by-case factual determination regarding the applicable violation designation to be assigned in emissions inspection cases and, after administrative review which includes fact finding, to take appropriate action.

The Commissioner may delegate and in the past has delegated his responsibilities in this regard to other employees of the Division. For instance, our understanding of the current operation is that inspectors from the Enforcement Section make the initial violation charge. Staff members within the Section at headquarters then determine the violation category to be assigned and the penalty to be imposed. A hearing officer, who has historically been part of the Enforcement Section staff, holds hearings, if requested, for the purpose of conducting administrative review in accordance with G.S. § 20-183.8E.

By memoranda dated March 22, 1993, E. C. Bristle, Robert A. Pruett and Danny G. Moody were designated by Commissioner Alexander Killens to conduct hearings on his behalf under Chapter 20, Article 3A and Article 12. To our knowledge, these designations have not been rescinded. Supervision of these employees would be governed by the appropriate agency organizational chart, taking into account any relevant administrative policies or special instructions which may be in effect. We conclude that the question of whether any Enforcement Section employee's decision is subject to review or modification depends on the administrative organizational chain of command in place within the Division and the level of authority delegated within the supervisory chain.

Our research discloses no statute that specifically authorizes or prohibits the Director of the Enforcement Section of the Division from taking any regulatory or administrative action as it relates to the emissions program. Clearly, any authority that the Director may have is derived from a delegation by the Commissioner, either specifically or impliedly through administrative organization. Moreover, such authority would be limited by any specific policy or instructions from the Commissioner. Therefore, the question of the Director's authority to make an administrative decision affecting the emissions program would be controlled by the internal administrative policies in effect at the time of the decision.

2. Procedure for Determining Appropriate Emission Violation Categories

Your second question concerns the procedure for determining the appropriate emission violation category. The advice provided herein is premised on our understanding of the procedures currently followed by the Division as set out above and application of the relevant law thereto.

The first step necessary to reaching a decision is to make a factual determination as to whether a violation occurred. The Commissioner or his designee must review the allegations presented together with any agreed upon facts and any evidence presented in support of and in opposition to the allegations. As a finder of fact, the Commissioner is free to determine the weight and sufficiency of the evidence and the credibility of the witnesses and to draw inferences from the facts and to appraise conflicting and circumstantial evidence. State ex rel. Commissioner of Insurance v. North Carolina Rate Bureau, 300 N.C. 381, 269 S.E.2d 547, cert. denied, 301 N.C. 107, 273 S.E.2d 300 (1980). It should be emphasized that the Division has the burden of establishing through the presentation of credible evidence the existence of all facts including, for reasons set out below, whether the alleged action or omission was intentionally or negligently done.

After hearing and weighing evidence presented in the case, the Commissioner must make factual findings. The findings of fact must be supported by competent evidence. Dailey v. North Carolina State Board of Dental Examiners, 60 N.C. App. 441, 299 S.E.2d 473 (1983), rev'd on other grounds, 309 N.C. 710, 309 S.E.2d 219 (1983). To be competent, evidence must be both relevant and admissible. It must also have some tendency to establish the existence of or disprove a fact in issue. State ex rel. Freeman v. Ponder, 234 N.C. 294, 67 S.E.2d 292 (1951); Wilson v. Ervin, 227 N.C. 396, 42 S.E.2d 468 (1947). Therefore, the Commissioner has the discretion to determine the facts of a case so long as the facts are based on competent evidence.

In analyzing and applying the law, the Commissioner must apply the law as written and in accordance with the legislative intent. If, however, in examining the law, there is ambiguity, the Commissioner must interpret the intent of the statute and then apply it appropriately. This is done by determining "...the evils it was designed to remedy, the effect of the proposed interpretation of the statute, and the traditionally accepted rules of statutory construction." State v. Tew, 326 N.C. 732, 738, 392 S.E.2d 603, 607 (1990). It is a fundamental rule of statutory construction to consider any internal guide to construction which the legislature has provided within the statute when the other provisions are not clear and explicit. Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980). The court has further stated, "[t]he different parts of a statute reflect light upon each other, and statutory provisions are regarded as in pari materia where they are parts of the same act. Hence, a statute should be construed in its entirety, and as a whole. All parts of the act should be considered, and construed together. It is not permissible to rest a construction upon any one part alone, or upon isolated words, phrases, clauses, or sentences, or to give undue effect thereto. The legislative intention, as collected from an examination of the whole as well as the separate parts of a statute, is not to be defeated by the use of particular terms." State ex rel. Utilities Commission v. Duke Power Co., 305 N.C. 1, 13, 287 S.E.2d 786, 793 (1982).

Once a fact or set of facts has been determined, the Commissioner must then apply the law to his findings of fact and decide whether a penalty should be imposed, and if so, what penalty is appropriate. Regarding penalties for emissions inspection violations, Article 3A of G.S. Chapter 20 contains the applicable substantive law.

The statutes regulating vehicle emissions inspection violations are broad and numerous. Some are general in nature. Others are very specific. When individual sections of the statute are read alone, it is possible to draw one conclusion; however, when sections are read together, a different result may be reached. By way of example, a typical fact situation arises when an undercover officer presents a tampered vehicle to an emissions inspection station and requests that the vehicle be inspected. A common tamper is to present a vehicle of a make and model required to be equipped with a catalytic converter as part of the exhaust/emissions equipment on which the catalytic converter has been removed. Often the inspection process is done out of the officer's presence. The vehicle is submitted to an electronic exhaust analysis which reveals exhaust emission levels within acceptable parameters. The vehicle will be passed by the station or mechanic and a sticker affixed without detection of the missing, but required catalytic converter.

G.S. § 20-183.3(b) states in part, "[t]o pass an emissions inspection a vehicle must pass both the visual inspection and the exhaust emissions analysis." While the failure to perform either the visual inspection or the exhaust emissions analysis would constitute a Type I violation, there must be evidence to support a finding that the required inspections were not done. Failure to detect a tamper alone is not sufficient to support such a finding.

G.S. § 20-183.8B(a) describes a schedule of penalties divided into three levels: Type I or serious; Type II or minor; and Type III or technical. This section defines these terms, stating that a serious violation is one that "directly affects the emission reduction benefits of the emissions inspection program" while a minor violation is one that "reflects negligence or carelessness in conducting an emissions inspection or complying with the emissions inspections requirements, but does not directly affect the emissions reduction benefits of the emissions inspection program." A technical violation is anything not falling under the designation of serious or minor as defined in the statute. This language is consistent with federal requirements. See 40 CFR 51.364(a)(2).

The definitions in G.S. § 20-183.8B(a) must be read together with G.S. § 20-183.8C, which lists specific acts that constitute Type I, Type II or Type III violations. The specific acts listed as Type I violations under G.S. § 20-183.8C(a) appear to be directed at intentional acts by the inspection station or mechanic. For example, G.S. § 20-183.8C(a)(1) states that it is a Type I violation for a station or mechanic to, "[p]ut an emissions inspection sticker on a vehicle without performing an emissions inspection of the vehicle or after performing an emissions inspection in which the vehicle did not pass the inspection."

In the scenario set out above, the Commissioner is faced with determining what type violation occurred. Absent evidence of an intentional act on the part of the mechanic or station, the only conclusion is that the inspection process failed to detect a required but missing part. At the same time, the vehicle's actual exhaust emissions levels fell within acceptable levels. The failure to detect a missing catalytic converter may have been due to negligence or carelessness in conducting the emissions inspection which would appear to warrant a Type II violation. However, if the mechanic or station actually discovers that the required catalytic converter is missing, but nonetheless passes the vehicle during the inspection, it would be entirely appropriate to classify the violation as Type I.

Because Article 3A is not exhaustive in listing each conceivable fact situation which may arise, the Commissioner should read the statutes together to resolve any ambiguities. In the event that the Commissioner determines it necessary, he may designate additional acts that are Type I, Type II, or Type III pursuant to the authority granted by G.S. § 20-183.8C(d). This should be accomplished, however, through the rule making process.

3. Authority of the Commissioner of Motor Vehicles to Modify a Penalty Imposed for Emissions Program Violation

Your third question asks whether the Commissioner of Motor Vehicles has discretionary authority to modify a penalty designation.

Based on the procedural understanding set out above, there are at least three stages at which the Commissioner or his designee may exercise discretion. The first is when the original violation and penalty determination are made as a result of the field inspection. The second occurs when, for any reason, an error is discovered and corrected administratively, and the third is during the formal hearing process recognized in G.S. § 20-183.8E.

Once the Commissioner has made a final determination of the appropriate type of penalty to be imposed using the process outlined above, the Commissioner must uphold the penalty mandated by G.S. § 20-183.8B if it is supported by law and fact. G.S. § 20-183.8E. Necessarily, each determination must be made on a case-by-case basis, and the law applied consistently to similar factual situations. If at any time it is found that an improper determination has been made, it would be incumbent on the Commissioner or his designee to take appropriate remedial action.

Absent evidence that the conclusion was made in error or bad faith, there is no authority to change or modify the type violation assigned. One noteworthy caveat to this final determination is the authority of the Commissioner to authorize a compromise settlement to resolve a conflict if an action of the agency is appealed to the courts.

Reginald L. Watkins
Senior Deputy Attorney General

Hal F. Askins
Special Deputy Attorney General