BILL ANALYSIS                                                                                                                                                                                                    







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        |Hearing Date:April 20, 2009    |Bill No:SB                            |
        |                               |275                                   |
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          SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
                         Senator Gloria Negrete McLeod, Chair

                         Bill No:        SB 275Author:Walters
                  As Introduced:     February 24, 2009   Fiscal:  Yes

        
        SUBJECT:  Professional engineers.
        
        SUMMARY:  In addition to civil, electrical and mechanical  
        engineering, establishes agricultural, chemical, control system,  
        fire protection, industrial, metallurgical, nuclear, petroleum,  
        and traffic engineering as "practice acts" in California (as  
        opposed to "title acts") and generally incorporates these nine  
        additional practice act disciplines into the provisions relating  
        to the three existing practice acts.  

        Existing law:

        1)Licenses and regulates professional engineers and land surveyors  
          by the Board for Professional Engineers and Land Surveyors  
          (Board) within the Department of Consumer Affairs.

        2)Sunsets the Board and its executive officer on July 1, 2011, and  
          permits DCA to assume its regulatory responsibilities as of that  
          date unless legislation is enacted to extend the sunset date.

        3)Recognizes three branches of engineering as "practice acts"  
          (civil, mechanical, and electrical), nine branches of  
          engineering as "title acts" (agricultural, chemical, control  
          system, fire protection, industrial, metallurgical, nuclear,  
          petroleum, and traffic), and two "title authorities" (structural  
          and soil).  Civil engineers may practice, or offer to practice,  
          any engineering in connection with or supplementary to civil  
          engineering studies or activities, as defined.  Any person  
          registered under a practice act may perform any engineering work  
          considered to be agricultural, chemical, control system, fire  
          protection, industrial, metallurgical, nuclear, petroleum, or  
          traffic engineering.





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        4)Requires DCA to contract with an independent consultant to  
          determine whether or not certain title acts should be  
          eliminated, kept, or converted into practice acts.


        This bill:

        1)In addition to civil, electrical and mechanical engineering,  
          establishes agricultural, chemical, control system, fire protection,  
          industrial, metallurgical, nuclear, petroleum, and traffic  
          engineering as "practice acts" in California (as opposed to "title  
          acts") and generally incorporates these nine additional practice act  
          disciplines into the provisions relating to the three existing  
          practice acts.  The bill provides that only those individuals  
          licensed by the Board may practice in these branches of engineering.

        2)Provides that it is a misdemeanor for any person not licensed by the  
          Board, or exempted by law, to practice or offer to practice as an  
          agricultural, chemical, control system, fire protection, industrial,  
          metallurgical, nuclear, petroleum, or traffic engineer.  Also  
          provides that it is a misdemeanor for any person to use the title of  
          licensed or registered agricultural, chemical, control system, fire  
          protection, industrial, metallurgical, nuclear, petroleum, or  
          traffic engineer, or any other title that implies the person is  
          practicing within one of these branches, unless the person is  
          licensed by the Board.

        3)Defines the following branches of engineering in statute:   
          agricultural, chemical, control system, fire protection, industrial,  
          metallurgical, nuclear, petroleum, and traffic.

        4)Provides that the professional practice of engineering in the  
          branches and title authorities may overlap.  The scope of overlap  
          shall be limited to an engineer's area of competency (as determined  
          by education and experience) and to those activities which are  
          incidental to practice in an engineer's branch of licensure.

        5)Provides that the Board shall not be required to define in  
          regulation permissible engineering work or specific tasks that may  
          be in connection with and incidental to a professional engineer's  
          work.

        6)Provides that a professional engineer may practice engineering work  
          only in the field or fields in which he or she is by education or  
          experience competent and proficient.





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        7)Provides that, subject to item # 6 above, any engineer may practice  
          without limitation in the branches of agricultural engineering,  
          chemical engineering, control system engineering, fire protection  
          engineering, industrial engineering, metallurgical engineering,  
          nuclear engineering, petroleum engineering, and traffic engineering.

        8)Provides that no local agency may impose limits on a professional  
          engineer's ability to practice engineering before that agency.

        9)Provides that all engineering plans, specifications, calculations,  
          and reports (documents) prepared by an engineer licensed by the  
          Board shall bear the signature or seal, and other specified  
          information, of the licensed engineer.  A licensed engineer who  
          signs engineering documents shall not be responsible for any damage  
          caused by subsequent changes to or uses of the documents if those  
          changes are not approved by the licensed engineer who originally  
          signed the documents.

        10)  Defines "structural engineering," generally, as part of civil  
          engineering involving the application of specialized civil  
          engineering knowledge to design and analysis of buildings and  
          structures that are constructed or rehabilitated to resist forces  
          induced by vertical and horizontal loads of static and dynamic  
          nature.

        11)  Deletes a provision permitting a registered civil engineer to  
          practice, or offer to practice, any engineering in connection with,  
          or supplementary to, civil engineering.

        12)  Defines "professional engineering services" as agricultural,  
          chemical, civil, control system, electrical, fire protection,  
          industrial, mechanical, metallurgical, nuclear, petroleum, or  
          traffic engineering services.

        13)  Provides that engineers in each practice discipline  
          (agricultural, chemical, civil, control system, electrical, fire  
          protection, industrial, mechanical, metallurgical, nuclear,  
          petroleum, and traffic engineers) may practice, or offer to  
          practice, within the scope of their license as a sole  
          proprietorship, partnership, firm, or corporation as long as  
          specified conditions are met.

        14)  Deletes an outdated provision requiring the DCA to contract with  
          an independent consultant to determine whether or not certain title  
          acts should be eliminated, kept, or converted into practice acts.





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        15)  Makes technical and conforming changes to incorporate the bill's  
          conversion of the nine title acts into practice acts.

        FISCAL EFFECT:  Unknown.  This bill has been keyed "fiscal" by  
        Legislative Counsel.

        COMMENTS:
        
        1.Purpose.  This bill is Sponsored by  California Farm Bureau  
          Federation  and    Chemical Industry Council of California   
          (Sponsors) to revise the Professional Engineers Act to regulate  
          all engineering disciplines in the same manner.  The Author  
          states that the bill would allow overlap between disciplines  
          without arbitrary restrictions, and codifies the regulation  
          requiring engineers to be competent when providing services.

        The Author states that in California, Civil engineering is the  
          only discipline that is allowed to overlap into other  
          disciplines.  California is the only state that does not allow  
          overlap in both directions.  No other discipline is allowed to  
          perform civil engineering.

        In stating the need for the bill, the Author indicates that Civil  
          engineering is focused on protecting the integrity of structures  
          from loads and dynamic forces.  The definition of civil  
          engineering states any design or services provided for fixed  
          works is civil engineering.  Public safety involves issues far  
          beyond structural integrity.  Growing and processing food with  
          safety for consumers, safe chemical processes, fire protection  
          for buildings, remedial actions to clean contaminated sites to  
          safe conditions, are all situations addressed by disciplines  
          that need the flexibility civil engineers have in practicing  
          their profession.  Competence is the main requirement engineers  
          must meet according to the Author.

        2.Background.  For almost thirty years the Board has struggled  
          with practice and title act registration without resolving what  
          the appropriate level of regulation should be.  There are  
          currently three practice-restricted disciplines (civil,  
          electrical and mechanical), and nine engineering specialty  
          "title acts" regulated by the Board (agricultural, chemical,  
          control systems, fire protection, industrial, metallurgical,  
          nuclear, petroleum and traffic).  The title acts grant  
          recognition to those engineers who have met the experience and  
          testing requirements of the Board, and only allow those who have  





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          met the qualifications to call themselves "professional  
          engineers" and use the specific engineering title.  However, it  
          does not restrict other engineers or non-engineers from offering  
          similar services in those engineering disciplines.

        California is unique in offering title act registration.  Other  
          states have "generic" licensing laws where all engineers are  
          licensed (registered) as professional engineers.  There are  
          generally no restrictions on the use of the specialty title, but  
          just on the use of the term "professional engineer."  However,  
          an engineer who is working in the area of industrial  
          engineering, (for example, a California title act branch) would  
          have to be licensed with that state, since any engineer  
          practicing or offering to practice engineering must be licensed  
          unless some exemption applies.  In many states the exemptions  
          for licensure are somewhat narrow and restrictive.

        3.Prior Legislation to Convert Title Acts to Practice Acts.  The  
          provisions in this bill are to a large extent, essentially the  
          same as those contained in 
         SB 246  (Figueroa) as amended on June 20, 2005.  That bill,  
          authored by then Senator Liz Figueroa, incorporated a number of  
          the recommendations of the Joint Committee on Boards,  
          Commissions and Consumer Protection (Joint Committee).   However  
          there are some significant differences between SB 246 and this  
          bill, which are noted below  . 

        For a number of years, the Joint Committee had worked with the  
          Board and various stakeholders in conjunction with the Board's  
          efforts to rewrite the Professional Engineering Act.  In its  
          recommendations made in 2005, after reviewing information  
          provided by the Board regarding all title acts, including the  
          number of current licensees, number of licensees originally  
          grandfathered, rates of attrition, number of examinees tested  
          over the years and the potential for continued licensure and  
          testing in the particular discipline of engineering, the Joint  
          Committee determined that the title acts of agricultural,  
          industrial and metallurgical engineering should be allowed to  
          phase out over time, similar to the title acts of corrosion,  
          quality, safety and manufacturing.  Further, the Joint Committee  
          recommended that the remaining title acts, chemical, control  
          systems, fire protection, nuclear, petroleum and traffic  
          engineering, be converted to practice acts.  Those  
          recommendations were crafted into legislation which was  
          sponsored by the Board for Professional Engineers and Land  
          Surveyors and incorporated into SB 246.





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        The recommendation to convert the title acts to practice acts was  
          the culmination of an ongoing process involving the Joint  
          Committee, the Board, a Board task force, and an independent  
          study conducted by the Institute of Social Research (ISR) at  
          California State University Sacramento.  The Joint Committee  
          concluded that SB 246 was necessary because:  (1) the current  
          regulatory system was nonsensical and in need of reform; (2) the  
          elevation of six title acts to practice acts would better  
          protect the public by ensuring that only those who have the  
          necessary education and experience may practice as a chemical,  
          control systems, fire protection, nuclear, petroleum and traffic  
          engineer; (3) the conversion of the six title acts to practice  
          acts would bring equity and fairness to the profession.

           a.   Practice Act vs. Title Act.  The most contentious issue of  
             SB 246, and of the current bill, is the elevation of title  
             acts to the level of practice acts.  Opponents argue that  
             there is little public benefit in converting the title acts  
             into practice acts, and that it would be confusing to the  
             public, and foster greater fractionalization of the  
             engineering profession.  Proponents however argue that the  
             title branches are distinct engineering disciplines and  
             should not be regulated as subsets of the existing practice  
             acts.  Proponents believe that creating the new practice acts  
             would bring equality and equity to professional engineering.

           b.   Institute of Social Research Report.   SB 2030  (Figueroa,  
             Chapter 1006, Statutes of 2000) required DCA to contract with  
             an independent consultant to conduct a study of California's  
             regulatory regime with respect to professional engineers.   
             Accordingly, the study was performed by the Institute of  
             Social Research (ISR) which, among other tasks, researched  
             and examined the regulation of professional engineers in  
             California, the education requirements of engineers, the  
             testimony of stakeholders, and compared California's  
             regulatory regime to that of other states.  The ISR report  
             was released in November of 2002 and made a number of  
             recommendations to reform California's regulation of  
             professional engineers.

           Among these recommendations, ISR recommended the removal of  
             "all prohibitions against overlapping practice between  
             engineering disciplines from the Professional Engineers Act  
             and Board Rules."  In addition, ISR found that California's  
             hierarchical regulatory structure was unique and unjustified  
             and recommended that the state "eliminate title protection  





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             and offer practice protection to all regulated disciplines."   
             Primarily, ISR made this recommendation because, by offering  
             only title act protection to various branches of engineering,  
             the state permits any individual to practice within those  
             branches so long as he or she does not use one of the  
             protected titles such as "chemical engineer" or "nuclear  
             engineer."  ISR found that "no other state allows the  
             unlicensed practice of regulated engineering disciplines."   
             ISR also reported that most other states offer a generic  
             "professional engineer" license (similar to the licensing of  
             physicians and surgeons, architects, and attorneys).

           c.   Review of ISR Report by the Board.  As indicated above,  
             ISR made several recommendations in November 2002 to the  
             Board regarding the continued licensure and regulation of  
             engineers in individual disciplines of engineering, the  
             reporting of legal actions against engineers, and the  
             collection of information regarding the practice of  
             engineering in California.  It was decided by the Board, DCA,  
             and the Joint Committee to have this ISR study reviewed by a  
             Task Force appointed by the Board consisting of two members  
             of the Board, committee consultants of the Legislature, a  
             representative from DCA, and various other members of the  
             public and two engineers not affiliated with the Board.  The  
             Task Force began meeting in August of 2003 and held five  
             meetings throughout the state to discuss the ISR  
             recommendations and receive public comment regarding those  
             recommendations or others being considered by the Task Force.  
              In 2004 the Board approved the recommendations of the Task  
             Force which were then adopted by the Joint Committee.  SB  
             246, as amended on June 20, 2005, reflected the changes  
             necessary to the Engineers Licensing Act to implement those  
             recommendations.

           d.   Opposition to SB 246.  The bill was strongly opposed by  
             two professional associations representing a large segment of  
             engineers in the state.  The Consulting Engineers and Land  
             Surveyors of California (now known as American Council of  
             Engineering Companies) and the Professional Engineers in  
             California Government argued that there would be no public  
             benefit from converting the title acts into practice acts,  
             and permitting any licensed engineer to practice in any other  
             branch of engineering would, in essence, allow engineers to  
             'self-certify' that they are qualified to practice in any  
             other branch.  Ultimately the bill was held under submission  
             in the Assembly Business and Professions Committee, and  





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             eventually the bill was amended to make it deal with another  
             subject altogether.

        4.Differences in This Measure and SB 246.  As indicated above, SB  
          246 from 1995, would have converted six title acts (chemical,  
          control systems, fire protection, nuclear, petroleum and traffic  
          engineering) to practice acts, and removed the prohibitions  
          against overlapping practice between engineering disciplines in  
          the Professional Engineers Act, and instead allow practice in  
          areas in which the engineer was by education or experience  
          competent and proficient.  The bill would also have given all  
          regulated disciplines the right to responsible charge of  
          engineering projects when justified by their education and  
          experience.  That bill further would have allowed the title acts  
          of agricultural, industrial and metallurgical engineering to  
          phase out over time as had been done to the title acts for  
          corrosion, quality, safety and manufacturing due to the apparent  
          paucity of registrants.

         The current bill before the Committee, SB 275, makes essentially  
          the same changes; however, the significant difference is that it  
          converts all nine title acts into practice acts  .

        5.Practice Act Descriptions.  As drafted, the bill converts the  
          nine title acts into practice acts by codifying the title  
          descriptions essentially as they are currently found described  
          in the regulations adopted by the Board.  Specifically, under  
          current law, the title acts are contained in, California Code of  
          Regulations, Title 16, Division 5, Section 401.  In order to  
          establish the scope of practice based on the descriptions, the  
          bill further adds to each definition that a person practices  
          that branch of engineering when he or she professes to practice  
          or is in responsible charge of engineering work in that branch.

        6.Licensing Populations.  It may be helpful to the Committee to  
          understand the numbers of engineers registered in each branch of  
          engineering in the state.  The chart below shows the number  
          registered in the current three practice acts and nine title  
          acts that are covered by this bill.  The statistics are taken  
          from the DCA Annual Report for FY 2006-2007, the most recent  
          available.  The licensing numbers show that the vast majority of  
          engineers are licensed in the three practice acts:  civil,  
          electrical and mechanical.  A lesser number are licensed in the  
          nine title acts:  agricultural, chemical, control system, fire  
          protection, industrial, metallurgical, nuclear and traffic.  






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             ------------------------------------------------------ 
            |  Department of Consumer Affairs FY 2006-2007 Annual  |
            |                        Report                        |
             ------------------------------------------------------ 
            |---------------+---------+----------+----------------|
            |     Type      | Issued  | Renewed  |  Total Active  |
            |               |         |          |    Licenses    |
            |---------------+---------+----------+----------------|
            |Agricultural   |        6|       113|             209|
            |---------------+---------+----------+----------------|
            |Civil          |      718|    23,203|         48,396 |
            |---------------+---------+----------+----------------|
            |Chemical       |       23|       922|          1,969 |
            |---------------+---------+----------+----------------|
            |Control System |      14 |       943|           1,572|
            |---------------+---------+----------+----------------|
            |Electrical     |      228|     5,187|           8,601|
            |---------------+---------+----------+----------------|
            |Fire           |       21|       371|            771 |
            |Protection     |         |          |                |
            |---------------+---------+----------+----------------|
            |Industrial     |        6|       403|             526|
            |---------------+---------+----------+----------------|
            |Mechanical     |      256|     6,936|         14,515 |
            |---------------+---------+----------+----------------|
            |Metallurgical  |        4|        90|            304 |
            |---------------+---------+----------+----------------|
            |Nuclear        |        2|       180|             667|
            |---------------+---------+----------+----------------|
            |Petroleum      |        3|       181|            405 |
            |---------------+---------+----------+----------------|
            |Traffic        |       53|       706|1,467           |
            |               |         |          |                |
            |               |         |          |                |
             ----------------------------------------------------- 
            

        7.Arguments in Support.  The  California Legislative Council of  
          Professional Engineers  (CLCPE) writes in support that:  

             "CA regulates the profession of engineering in a manner  
             that is different from any other state.  Most states  
             recognize all engineering disciplines as equal in  
             importance.  CA is unique in that the only engineering  
                                                                  discipline that is given complete respect is civil  
             engineering.  Only a licensed civil engineer is able to  





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             perform civil engineering (Sect. 6704 B&P Code.)  The  
             definition of civil engineering applies to fixed works and  
             encompasses any engineering activity relating to them  
             (Sect. 6731 & 6731.1 B&P Code.)  These statutes both  
             increase costs and restrict availability of expertise.  

             "Companies need and use the services of engineers in all  
             disciplines, not just civil engineers.  State agencies are  
             aware of the restrictive nature of the law.  Its  
             restrictions are continuously expanding.  Regional water  
             boards, DTSC and other agencies frequently refuse to accept  
             engineering designs from other engineering disciplines.  A  
             chemical engineer is restricted from providing designs to  
             address pollution or contaminated sites, even if they are  
             the best manner of treating the hazard.  OSHPD, the agency  
             that regulates the design of health facilities, will not  
             accept a fire protection design performed by a fire  
             protection engineer, even if necessary to protect patients.

             "SB 275 will allow all engineers to provide engineering  
             services if they are competent.  It will eliminate  
             arbitrary restrictions on those services, reduce costs by  
             eliminating redundancy and expediting projects, and it will  
             encourage those entering the profession to explore fields  
             they are most interested in, not just the one favored by  
             the state.  Public safety, the primary reason to license  
             engineers, will be enhanced by freeing the appropriate  
             discipline for the task at hand from an arbitrary  
             subversion to another discipline.  Civil engineering will  
             be given its appropriate focus, which is to design  
             structures to withstand loads and dynamic forces.  Civil  
             engineers, along with all other engineers, will be able to  
             provide services in other areas of engineering, if they are  
             competent for the job."

           Southern California Edison  (SCE) argues that the bill will give  
          equal recognition to more engineering disciplines.  SCE believes  
          that the recognition of other engineering disciplines in  
          addition to civil engineers will provide business with greater  
          flexibility and allow qualified engineers to serve as the  
          licensed engineer in their discipline. 

          The Deans of Engineering, for the  Colleges of Engineering for  
          Cal Poly University, Pomona  and the  University of California,  
          Davis  both write that the separate branches of engineering are  
          distinct disciplines, and are not a subset of civil engineering.  





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           Genentech  writes that in semiconductor and biotechnology  
          companies, chemical engineers are often required for the design  
          and operation of chemical process equipment and plants, and  
          states:  "The current licensure system often results in chemical  
          engineers 'schooling' the Practice-Act civil engineers on design  
          issues.  The current system is burdensome to companies like ours  
          that hire outside engineering consultants as we must ensure a  
          licensed Civil Engineer is part of a project regardless of the  
          level of the civil engineering involved.  This often adds to  
          cost without added benefit or safety."    

        8.Arguments in Opposition.   American Council of Engineering  
          Companies  (ACEC), formerly Consulting Engineers and Land  
          Surveyors of California) strongly opposes the bill, arguing that  
          the bill is an effort by a minority of engineers to change  
          engineering registration to advance their own selfish interests  
          by fragmenting engineering registration.  ACEC suggests that  
          about 88% of current registrants are regulated under a practice  
          act.  Elevating the title acts to practice acts would further  
          fragment the engineering profession at a time when California is  
          failing to graduate the required number of professional  
          engineers to meet the infrastructure demands within the state,  
          according to ACEC.  As an example, ACEC states the following:

             "[T]he bill proposes a definition of Chemical Engineering  
             that encompasses virtually all processes involving chemical  
             reactions under which only Chemical Engineers could  
             practice engineering where there is a chemical process.  If  
             the bill becomes law, Civil Engineers, who design the  
             majority of our infrastructure, could no longer specify the  
             use of cement, since the curing process involves a chemical  
             reaction.

             "The overreaching definition of Chemical Engineering may be  
             the most obvious to detect, but the problems only start  
             with that title.  The newly-created practice act engineers  
             for the Fire Protection discipline would obviously want to  
             claim their place in most infrastructure projects.  
             Agricultural Engineers would claim exclusive rights to  
             engineer our food and fiber production.  Control System  
             Practice Engineers would claim an exclusive right to  
             practice on all systems of control.  Traffic Engineers with  
             a new practice act will claim new rights that conflict with  
             the existing Civil practice.  Similar problems will exist  





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             for all the new practice acts.

             "Having created new turf-protected specialties, the bill  
             recognizes that the new practice acts will make it  
             difficult, if not impossible, for the current three  
             practice acts (Civil, Electrical and Mechanical) to  
             continue, so the bill creates a new concept in the  
             Professional Engineers Act that any engineer can practice  
             in areas of overlap so long as it is incidental to that  
             person's basic practice act. Since the concepts of  
             "overlap" and "incidental" are not well defined, the new  
             concepts are confusing and ambiguous."

          Finally, ACEC states that the bill would result in years of turf  
          wars within the engineering profession due to the fragmentation  
          caused by the newly-created practice acts.





        SUPPORT AND OPPOSITION:
        
         Support:   

        California Legislative Council of Professional Engineers (CLCPE)
        Dean of Engineering, College of Engineering, Cal Poly University,  
          Pomona
        Dean of Engineering, College of Engineering, University of  
          California, Davis 
        Genentech
        Rain for Rent
        Southern California Edison
        Weather Tec Corporation
        One individual

         Opposition:  

        American Council of Engineering Companies
        Professional Engineers in California Government
        California Chapter of the American College of Nuclear Physicians



        Consultant:G. V. Ayers






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