BILL ANALYSIS
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|Hearing Date:January 11, 2010 |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 Amended:January 4, 2010 Fiscal: Yes
SUBJECT: Professional engineers.
SUMMARY: In addition to civil, electrical and mechanical
engineering, further 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.
NOTE : This measure is before the Committee for reconsideration.
This measure failed passage in Committee by a vote of 2-5 on April
20, 2009.
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 authorization to hire 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). Any person registered under a practice act may
perform any engineering work considered to be agricultural,
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chemical, control system, fire protection, industrial,
metallurgical, nuclear, petroleum, or traffic engineering.
4)Authorizes a civil engineer to practice, or offer to practice,
any engineering in connection with or supplementary to civil
engineering.
5)Required DCA to contract with an independent consultant to
determine whether or not certain title acts should be
eliminated, kept, or converted into practice acts, and to report
the findings and recommendations to the Legislature by September
1, 2002.
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; with regard to the
defined branches, provides:
a) The definitions shall not be construed as regulating any
generally recognized profession other than professional
engineering, even when the duties and practices of that
profession overlap those defined duties and practices.
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b) All engineering plans, specifications, calculations, and
reports (documents) prepared by a licensed engineer shall bear
the signature or seal, and other specified information, of the
engineer.
c) 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.
1)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, and additionally provides that:
a) 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.
b) No local agency may impose limits on a licensed engineer's
ability to practice engineering before that agency.
5)Defines "professional engineering services" as agricultural, chemical,
civil, control system, electrical, fire protection, industrial,
mechanical, metallurgical, nuclear, petroleum, or traffic
engineering services.
6)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 for
professional engineering services provided.
7)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.
8)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
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Legislative Counsel.
COMMENTS:
1.Recent Amendments. The bill was amended on January 4, 2010 in
an effort to address concerns raised by opponents. It is
unknown to Committee staff to what extent amendments may satisfy
the concerns that have been raised. The amendments make the
following changes:
a. Removes the bill's general authorization to allow licensed
engineering to overlap, regardless of the branch or practice
discipline. However the amendments maintain the provision
allowing a licensed engineer to practice without limitation
or restriction in the areas of, agricultural, chemical,
control system, fire protection, industrial, metallurgical,
nuclear, petroleum, and traffic engineering, provided that
the licensed engineer is competent and proficient by
education or experience in that area of practice.
b. Removes the definition of "structural engineering"
contained in the introduced version of the bill.
c. Removes the repeal in the prior version of the bill of BPC
6737.2, thereby continuing the provision of existing law
which authorizes a registered civil engineer to practice, or
offer to practice, any engineering in connection with, or
supplementary to, civil engineering.
d. Addresses concerns raised by those in health related
fields that the definition of nuclear engineering would
prohibit them from practicing in health related fields
without a professional engineering license. The amendments
address this concern by specifying that the definitions in
the bill shall not be construed as regulating any generally
recognized profession other than professional engineering,
even when the duties and practices of that profession overlap
those defined duties and practices.
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 converted title
act disciplines, and codifies the regulation requiring engineers
to be competent when providing services.
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The bill was amended on January 4 , to limit its scope and
minimize its impact upon civil engineering. The Sponsors state:
"With these amendments there will be no change to the
status of civil engineering. The existing law that only
allows civil engineering as defined in [Business and
Professions Code] sections 6731 and 6731.1 to be performed
by civil engineers remains.
The bill will only convert the disciplines protected for
the use of title to practice protection. Any licensed
engineer will be able to practice in the converted
disciplines without restrictions, if competent.
The result will be to eliminate the protection of title
only that exists in California, but not in any other state.
For those disciplines so regulated, it will reduce
confusion when they provide services, and will allow the
engineers licensed by California in those disciplines to
provide services in states that do not recognize title only
protected disciplines."
2.Background. For nearly 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
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
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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. This
bill is similar to
SB 246 (Figueroa) as amended on June 20, 2005. That bill,
authored by then Senator Liz Figueroa, and sponsored by the
Board, 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.
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 or traffic
engineer; (3) the conversion of the six title acts to practice
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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 no other state
has a regulatory structure engineers like California's
hierarchical regulatory structure . The report found that
California's unique regulatory structure was unjustified and
recommended that the state "eliminate title protection 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
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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
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
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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 differences are: (1)
this bill converts all nine title acts into practice acts; (2)
this bill does not authorize the newly created practice acts to
overlap into civil, electrical and mechanical engineering.
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 404. 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 2007-2008, 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 2007-2008 Annual |
| Report |
------------------------------------------------------
|---------------+---------+----------+----------------|
| Type | Issued | Renewed | Total Active |
| | | | Licenses |
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|---------------+---------+----------+----------------|
|Agricultural | 1| 89| 202|
|---------------+---------+----------+----------------|
|Civil | 1,651| 26,828| 49,557|
|---------------+---------+----------+----------------|
|Chemical | 35| 1,044| 1,926|
|---------------+---------+----------+----------------|
|Control System | 11 | 573| 1,516|
|---------------+---------+----------+----------------|
|Electrical | 327| 3,719| 8,789|
|---------------+---------+----------+----------------|
|Fire | 25| 377| 757 |
|Protection | | | |
|---------------+---------+----------+----------------|
|Industrial | 2| 124| 526|
|---------------+---------+----------+----------------|
|Mechanical | 351| 7,708| 14,370|
|---------------+---------+----------+----------------|
|Metallurgical | 2| 195| 272|
|---------------+---------+----------+----------------|
|Nuclear | 0| 453| 618|
|---------------+---------+----------+----------------|
|Petroleum | 1| 222| 387|
|---------------+---------+----------+----------------|
|Traffic | 61| 795|1,485 |
| | | | |
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7.Arguments in Support. [Note: The following support statements
were received by the Committee prior to the January 4, 2010
amendments] 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
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
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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.
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
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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. [Note: The following opposition
statements were received by the Committee prior to the January
4, 2010 amendments] 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
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
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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.
The Professional Engineers in California Government (PECG)
opposes the bill, arguing against converting title acts to
practice acts, stating that the purpose of practice act
licensing is to "safeguard life, health, property and public
welfare," that practice act licenses should only be created if
they are needed for statutory purposes. PECG does not believe
that converting the title acts to practice acts is necessary to
safeguard life, health, property and public welfare.
10.The Board Has No Position on This Bill. Although the Board for
Professional Engineers and Land Surveyors sponsored SB 246 in
2005, it has taken a "Watch" position on the current bill.
11.Policy Issue : Should the specified Title Acts be converted to
Practice Acts?
After lengthy review of this issue for many years, there does not
seem to be any real justification for continuing with title acts
for those disciplines of agricultural, chemical, control system,
fire protection, industrial, metallurgical, nuclear, petroleum
and traffic engineering. Currently, all of the title act
engineers are considered as "licensed" by the Board, yet because
of their status as a title engineer the only action the Board
may take against them for incompetent practice is to no longer
allow them to use their title. From a consumer protection
standpoint, this serves no purpose in trying to prevent future
practice of incompetent title act engineers. Consumers are also
mislead by the use of the term "licensed" since a licensed
professional is considered as having specified practice
restrictions or what is considered as a defined scope of
practice. Practice act versus title act engineers has for years
created two classes of engineers, those who have a legitimate
practice and those who have something less. No other states
classify engineers in this fashion. What it has allowed is for
the three practice areas of engineering (civil, electrical and
mechanical) to govern the engineering work of title act
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engineers even though they may have little experience in these
specialty areas of engineering. As pointed out in the study
completed by ISR, the conversion of title acts to practice acts
is an issue of equity and fairness to the entire profession of
engineering.
12.Policy Issue : Should there be a uniform standard of practice
and competency for all licensed engineers? This measure
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. Currently,
this competency requirement in Board regulations only applies to
civil, electrical and mechanical engineering and only as to the
engineering services they may provide within their own
particular practice. This standard of competency would now
apply to all disciplines of engineering and would insure that
any engineering work performed within a particular practice of
engineering, or in another area of engineering (including the
former title act disciplines), could only be done if the
engineer is by education or experience both competent and
proficient to perform the engineering services. This provides
greater consumer protection, since the Board would be able to
take action against any licensed engineer who performs
incompetent work in their own discipline of engineering, or in
other disciplines of engineering, because they do not have the
requisite education or experience to be performing such
engineering work.
SUPPORT AND OPPOSITION:
Support : [Prior to the January 4, 2010 amendments]
California Farm Bureau Federation (Sponsors)
Chemical Industry Council of California (Sponsors)
California Association of Health Facilities
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
Several individuals
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Opposition: [Prior to the January 4, 2010 amendments]
American Council of Engineering Companies
California Chapter of the American College of Nuclear Physicians
California Radioactive Materials Management Forum
Council on Radionuclides and Radiopharmaceuticals
Professional Engineers in California Government
Several individuals
Consultant:G. V. Ayers