BILL ANALYSIS
----------------------------------------------------------------------
|Hearing Date:April 20, 2009 |Bill No:SB |
| |275 |
----------------------------------------------------------------------
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.
SB 275
Page 2
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.
SB 275
Page 3
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.
SB 275
Page 4
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
SB 275
Page 5
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.
SB 275
Page 6
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
SB 275
Page 7
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
SB 275
Page 8
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.
SB 275
Page 9
------------------------------------------------------
| 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
SB 275
Page 10
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.
SB 275
Page 11
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
SB 275
Page 12
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
SB 275
Page 13