BILL ANALYSIS �
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|Hearing Date:January 9, 2012 |Bill No:SB |
| |692 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 692Author:Walters
As Amended:January 4, 2012Fiscal: Yes
SUBJECT: Professional engineers.
SUMMARY: This is an Urgency measure. 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" under the Professional Engineers Act (as opposed to
"title acts") and generally incorporates these nine additional
practice act disciplines into the provisions relating to the three
existing practice acts. Authorizes a licensed engineer to practice
engineering only in the field or fields in which he or she is by
education or experience competent and proficient, and further
specifies that any validly licensed engineer may practice without
limitation or restriction in any of the 12 practice disciplines.
NOTE: This measure was heard and approved by this Committee on April
25, 2011, by a vote of 5-0. In Senate Appropriations Committee, the
bill was placed on the Suspense File, and not moved. The bill was
amended on August 22, 2011, and has been referred back to this
Committee for hearing.
Existing law:
1) Licenses and regulates professional engineers, land surveyors,
geologists and geophysicists by the Board for Professional
Engineers, Land Surveyors, and Geologists (Board) within the
Department of Consumer Affairs.
2) Recognizes, under the Professional Engineers Act (Act), three
branches of engineering as "practice acts" (civil, mechanical, and
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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, chemical, control system, fire
protection, industrial, metallurgical, nuclear, petroleum, or
traffic engineering. (Business and Professions Code (BPC)
commencing with Section 6700)
3) Defines "responsible charge of work" to mean the independent
control and direction, by the use of initiative, skill, and
independent judgment, of the investigation or design of
professional engineering work or the direct engineering control of
such projects. (BPC � 6703)
4) Requires that any person, unless specifically exempted, who
practices, or offers to practice, civil engineering, electrical
engineering or mechanical engineering must be accordingly licensed
by the Board. (BPC � 6730)
5) Specifies that "civil engineering" embraces studies or activities
in connection with fixed works for irrigation, drainage,
waterpower, water supply, flood control, inland waterways, harbors,
municipal improvements, railroads, highways, tunnels, airports and
airways, purification of water, sewerage, refuse disposal,
foundations, grading, framed and homogeneous structures, buildings,
or bridges, as specified. (BPC � 6731). "Civil engineering" also
includes the practice or offer to practice, either in a public or
private capacity, the following: (a) Locate, relocate, establish,
reestablish, or retrace the alignment or elevation for any of the
fixed works embraced within the practice of civil engineering. (b)
Determine the configuration or contour of the earth's surface or
the position of fixed objects above, on, or below the surface of
the earth. (BPC � 6731.1)
6) Provides that any person practices civil engineering when he or she
professes to be a civil engineer or is in responsible charge of
civil engineering work. (BPC � 6734)
7) Requires all civil engineering plans, calculations, specifications
and reports to be prepared by, or under the responsible charge of,
a licensed civil engineer and must include his or her name and
license number. (BPC � 6735)
8) Provides that it is a misdemeanor for any person not licensed by
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the Board or exempted by law, to practice or offer to practice as a
civil, electrical or mechanical engineer. Also provides that it is
a misdemeanor for any person to use the title of licensed or
registered civil, electrical, or mechanical engineer or any other
title that implies the person is practicing within one of these
branches, unless the person is licensed by the Board. (BPC � 6787)
9) Authorizes a civil engineer to practice, or offer to practice, any
engineering in connection with or supplementary to civil
engineering. (BPC � 6737.2)
10)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. (BPC
� 6704.1)
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) Establishes a misdemeanor violation 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
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generally recognized profession other than professional
engineering, even when the duties and practices of that
profession overlap those defined duties and practices.
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 subject to these
provisions, authorizes:
a) Any validly-licensed engineer may practice without
limitation or restriction in the branches of agricultural
engineering, chemical engineering, civil engineering, control
system engineering, electrical engineering, fire protection
engineering, industrial engineering, mechanical 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.
2) Specifies that the definitions of for each of the 12 practice
disciplines may not be construed as regulating any generally
recognized profession other than professional engineering even when
those duties and practices overlap with engineering practices, as
specified.
3) Defines "professional engineering services" as agricultural,
chemical, civil, control system, electrical, fire protection,
industrial, mechanical, metallurgical, nuclear, petroleum, or
traffic engineering services.
4) 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,
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or corporation as long as specified conditions are met for
professional engineering services provided.
5) 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.
6) 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. Amendments To The Bill After Leaving This Committee. As noted
above, this Committee previously heard this measure on April 25,
2011, and approved it by a 5-0 vote. In Senate Appropriations
Committee, the bill was sent to the Suspense File, where it was not
moved by the Author.
On August 22, 2011, the Author amended the bill in response to issues
raised in a Legislative Counsel Opinion (#1101097) which was issued
on July 22, 2011. The bill was amended again on January 4, 2012 to
further reflect the Legislative Counsel Opinion.
This measure is currently before the Committee in substantially the
same form as previously approved by the Committee, but with the
following significant difference:
As previously heard : The bill would have authorized an
engineer to practice engineering only in the field or fields in
which he or she is by education or experience competent and
proficient, and further specified that any validly licensed
engineer may practice without limitation or restriction in the 9
new practice disciplines (the former title acts). This
effectively would allow civil, mechanical, or electrical
engineering (the current practice acts) to overlap in practice
with any of the 12 practice disciplines; however, it would not
allow the 9 new practice disciplines to overlap into the practice
of civil, electrical or mechanical engineering.
As currently amended : This bill authorizes an engineer to
practice engineering only in the field or fields in which he or
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she is by education or experience competent and proficient, and
further specifies that any validly licensed engineer may practice
without limitation or restriction in any of the 12 practice
disciplines. This effectively allows overlap in practice between
any of the 12 practice disciplines (See above, "This Bill," Item
# 4).
1. Legislative Counsel Opinion. The latest amendments to the bill are
made in response to a Legislative Counsel Opinion (#1101097) issued
in response to a request by the Author. The Author asked:
"Whether a licensed professional engineer who is not licensed as a
civil engineer may be in responsible charge of designs, plans and
specifications, and engineering reports for a project that has
components involving fixed works as described Sections 6731 and
6731.1 of the Business and Professions Code."
Counsel opined that : "Only a licensed civil engineer may be in
responsible charge of designs, plans and specifications, and
engineering reports for the fixed work components of an engineering
project, as described in Sections 6731 and 6731.1 of the Business
and Professions Code. However, a licensed professional engineer
who is not a civil engineer may be in responsible charge of
designs, plans and specifications, and engineering reports for the
components of an engineering project that are not fixed works."
The Sponsor of this measure, the California Farm Bureau Federation
(Sponsor) has indicated that the determination that only a licensed
civil engineer may provide any civil engineering services for fixed
works, eliminates the reforms which the bill intended by converting
the title acts to practice acts. Even if each of the title acts
were established as practice disciplines, no engineer licensed in
any of the new practice disciplines would be able to practice
engineering work on any project involving fixed works, unless they
were licensed as a civil engineer.
While the Sponsor contends that converting the title acts to practice
acts is still important, it is also necessary to allow overlap
across all engineering disciplines if the licensed professional
engineer is by education or experience competent and proficient to
do the work. The Sponsor believes that the law has been basically
ignored by those who use engineering services.
Therefore, the latest amendments to the bill would allow any
validly-licensed engineer may practice without limitation or
restriction in any branch of engineering provided they are
competent and proficient by education or experience in that
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engineering practice.
2. Purpose. The Sponsor of this measure intends to revise the
Professional Engineers Act to regulate all engineering disciplines
in the same manner. They argue that it would allow overlap between
disciplines without arbitrary restrictions. The bill codifies the
Board's regulation requiring engineers to be competent when
providing services.
The Sponsor states: "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."
The Sponsor further indicates: "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."
3. 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
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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.
4. Prior Legislation to Convert Title Acts to Practice Acts. This
bill is essentially identical to SB 275 (Walters) from the
2009-2010 Legislative Session. That bill was sponsored by the
California Farm Bureau Federation along with the Chemical Industry
Council of California, and ultimately died in this Committee.
This bill is also similar to SB 246 (Figueroa) from 2005 (as amended
on June 20, 2005). That bill was sponsored by the Board, and
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 extended 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
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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 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 for 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
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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 to the Engineers
Licensing Act necessary 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.
1. Differences in This Measure and SB 246. As indicated above, SB 246
from 2005, 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 allowed the title act
engineers to practice in areas in which the engineer was by
education or experience competent and proficient. The bill would
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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 692, 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 phase out any title acts.
2. 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
(CCR), 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.
3. Restrictions on Title Act Engineers Design Authority. Throughout
state government, because title act engineers are not considered
engaged in an engineering "practice," they are not permitted to be
in "responsible charge" of a project. The California Fire Chief's
Association gives several such examples:
Office of Statewide Health Planning and Development (OSHPD) -
Because fire protection engineering is not considered a
"practice" OSHPD holds that fire protection engineers do not fall
within the exception of Health and Safety Code (HSC) � 129805,
permitting them to design fire protection and life safety systems
in hospitals and skilled nursing facilities.
Division of State Architect (DSA) - Because fire protection is
not considered an approved practice for performance of any
education facility related services, a fire protection engineer
cannot perform design or construction related services on school
projects (Education Code � 17302).
Local Government; High Rise Buildings - Some local agencies do
not consider fire protection and engineering, "practice," and
therefore cannot be in responsible charge of a fire protection or
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life safety project and cannot perform design services or oversee
construction of a fire alarm and fire protection systems in high
rise structures. California Building Code � 1.11.3.3(2)
provides, "All plans and specifications shall be prepared under
the responsible charge of an architect or a civil or structural
engineer authorized by law to develop construction plans and
specifications."
1. 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
Board's 2010 Sunset Review Report, 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.
------------------------------------------------------
| 2010 Sunset Review Report. FY 2009-2010 Licensing |
| Statistics |
------------------------------------------------------
|---------------+---------+----------+----------------|
| Type | Issued | Renewed | Total Active |
| | | | Licenses |
|---------------+---------+----------+----------------|
|Agricultural | 0| 79| 193|
|---------------+---------+----------+----------------|
|Civil | 1,867| 27,120| 50,497|
|---------------+---------+----------+----------------|
|Chemical | 71| 1,032| 1,954|
|---------------+---------+----------+----------------|
|Control System | 11 | 499| 1,416|
|---------------+---------+----------+----------------|
|Electrical | 398| 3,812| 8,916|
|---------------+---------+----------+----------------|
|Fire | 29| 367| 760 |
|Protection | | | |
|---------------+---------+----------+----------------|
|Industrial | 5| 116| 467|
|---------------+---------+----------+----------------|
|Mechanical | 478| 7,395| 14,633|
|---------------+---------+----------+----------------|
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|Metallurgical | 6| 174| 277|
|---------------+---------+----------+----------------|
|Nuclear | 2| 392| 613|
|---------------+---------+----------+----------------|
|Petroleum | 4| 207| 389|
|---------------+---------+----------+----------------|
|Traffic | 33| 733|512 |
| | | | |
-----------------------------------------------------
2. Related Legislation. SB 543 (Steinberg and Price, Chapter 448,
Statutes of 2011) extended the inoperative and repeal dates (sunset
dates) of the Board as well as for several other regulatory boards
from January 1, 2012 to January 1, 2016, and made several updates
to the regulatory law, including requiring fingerprinting of new
licensees, eliminates the supplemental, California specific
examination for structural engineers, and establishes the Geology
and Geophysics Account within the Professional Engineer's and Land
Surveyor's Fund.
AB 1210 (Garrick, 2011) an urgency measure, providing that a licensed
civil engineer shall not be required to meet any additional
experience, training, or certification requirements in order to
perform activities in the preparation of a Storm Water Pollution
Prevention Plan. This bill was vetoed by the Governor.
ABX4 20 (Strickland, Chapter 18, Statutes of 2009) made a number of
consolidations related to the 2009-2010 State Budget, including
consolidating the Board of Geologists and Geophysicists with the
Board for Professional Engineers and Land Surveyors.
AB 1431 (Hill, Chapter 696, Statutes of 2010) renamed the Board for
Professional Engineers and Land Surveyors, to become the Board for
Professional Engineers, Land Surveyors and Geologists, and
increased the Board membership from 13 to 15 by adding a licensed
geologist or geophysicist to the Board, and one public member.
3. Support to Current Version of the Measure. The Committee has
received support for this measure from the University of Southern
California (USC) Viterbi School of Engineering , the California
State University Northridge (CSUN) College of Engineering and
Computer Science , and the University of California Riverside Bourns
College of Engineering . Upon reviewing the Legislative Counsel
Opinion (see Comment 2 above). In writing to the Author, these
proponents state:
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The legal opinion makes it clear that the Professional Engineers
Act threatens the ability of our graduates to provide their
services in our state to meet its many challenges."
We also have reviewed your bill, SB 692, which addresses this
situation. It proposes to make competence the standard under
which engineering services are performed, as is the case in
almost every other state. We support this change in the law.
In fact, the failure to make this change will have consequences
that are difficult to comprehend.
The opinion concludes that only a licensed civil engineer, who
is competent, can provide the necessary services to develop the
'permanent established works.' Prior to receiving the opinion
this was never our understanding of the law. No other state, or
possibly any other country, has such a restricted policy for the
engineering profession.
The opinion has been circulated within the academic community.
It is impossible to ignore its impacts on almost all professions
engaged in the field of technology and we believe that there is
no justification for such a restriction.
4. Support to Prior Version of the Measure. In sponsoring the bill,
the California Farm Bureau stated that California is responding to
new requirements for food safety, to reduce impacts on the
environment, and to reduce green house gas emissions and the
engineering profession part of this effort. The present law
restricts any engineer, who is not licensed as a civil engineer,
from helping farmers to meet the new challenges. Yet there are
experts with the ability to do this who are not civil engineers.
The Sponsor further argued: "Any engineering for fixed work is
prohibited unless it is performed by a licensed civil engineer.
While it is important to make sure buildings withstand earthquakes,
it is also important to reduce pesticide and herbicide discharges,
provide clean food processing facilities, and make efficient use of
irrigation water. Agricultural and chemical engineers are usually
the most expert in these areas."
The California Legislative Council of Professional Engineers (CLCPE)
argued that because of the current law, state agencies restrict the
ability of title protected engineers to provide the designs, and
other engineering services, best suited to protect the public. At
best, this causes extra costs and delays projects. The best
engineering technology is provided when the law is ignored, and
competence is allowed, according to CLCPE.
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CSCPE stated: "The time has come to bring California into the 21st
Century by providing all licensed engineers equal respect. Other
states encourage all engineers to use their expertise to protect
the public and the environment. California discourages such
activity, since it is more important to look to status, instead of
competence, in our state. CLCPE indicated that California is
leading the world in a technical revolution to address
environmental and energy issues, and needs bold steps to be taken
toward technologies that are just on the drawing board, affirming,
"This is a difficult task, at best. Without reforming the
Engineering Act, the difficulties may be insurmountable."
A number of individual engineers wrote, stating that they are
employees of California environmental regulatory agencies (many of
whom are members of the Professional Engineers in California
Government), and were in support of the bill. These engineers
indicated they are employed by various agencies, including:
Department of Toxics Substances Control (DTSC), State Water
Resources Control Board (SWRCB), California Department of Public
Health (CDPH), CDPH Drinking Water Program (CDPH-DWP), Division of
Drinking Water and Environmental Management (DDWEM), Regional Water
Quality Control Board, Air Resources Board, Bay Area Air Quality
Management District. These supporters argued that the current
definition of civil engineering is so broad that, everything they
do is included in the definition, stating, "It only allows civil
engineers to perform many of the services for which we have the
formal education or experience to conduct." Further stating, "We
find the scope of civil engineering is so broad it prohibits the
provision of services from engineers who are not licensed as civil
engineers, merely because they are not licensed as civil engineers.
It appears that in the State's eyes, the requirement that the work
be conducted by a civil engineer is more of a concern than the
competence of the service provided."
The California Fire Chiefs Association stated that the fire prevention
and code enforcement divisions rely on the services of Title Act
engineers, particularly fire protection engineers, and chemical
engineers in performing public safety services. These engineers
provide specialty expertise, to address the unique problems in
current fire protection and hazardous materials technology.
5. Opposition to Prior Version of the Measure. The American Council
of Engineering Companies of California (ACEC), opposed the bill,
arguing that the practice acts created by SB 692 would overlap with
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one another and with existing practice acts, confuse consumers,
force the use on projects of more engineers with different types of
licenses, add to consumer costs and make California's licensing
laws even more disconnected than they already are with the
licensing laws in other states (which would make it more difficult
for California's engineers to provide services for projects located
in other states). ACEC contended that the law prohibits civil,
electrical, and mechanical engineering by any person who has not
passed a specified examination and who is not appropriately
licensed by the board in that discipline, and that eliminating
specific title acts and elevating all engineering work to practice
acts "undermines this critical safety and education component, and
allows people with no prior education or examination determination
to practice in the areas of civil, electrical, and mechanical
engineering."
According to ACEC, the bill further fragmented the profession and made
project delivery more cumbersome and costly at a time when
California is already failing to graduate enough engineers needed
for future growth and prosperity, and when infrastructure and
housing needs are immense and growing.
Professional Engineers in California Government (PECG) also opposed
the bill, stating, "When this measure was first introduced (SB 246,
2005), PECG provided written recommendations to the Senate
Business, Professions and Economic Development Committee in April
of 2004, as well as April of 2005, outlining the public policy
reasons that support their steadfast opposition to proposals to
convert engineering Title Acts to Practice Acts. In short, the
purpose of Practice Act licensing is "to safeguard life, health,
property and public welfare" (Business and Professions Code Section
6730). Currently, the practice licenses are civil engineering,
electrical engineering and mechanical engineering. Practice Act
licenses, by definition, should only be created if they are needed
for statutory purposes. PECG also opposed SB 275, an identical
bill from last session. PECG does not believe that converting
Title Act registrants, as was proposed in SB 692, is necessary to
safeguard life, health, property and public welfare."
6. The Board Has Taken a Watch Position on This Bill. Although the
Board for Professional Engineers and Land Surveyors sponsored SB
246 in 2005, it did not take a position on
SB 275 in the 2009-2010 Session, and has taken a "Watch" position on
the current measure.
7. Policy Issue : Should The Specified Title Acts Be Converted To
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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 real 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
misled 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 California's current system has done is it
has allowed for the three practice areas of engineering (civil,
electrical and mechanical) to govern the engineering work of title
act engineers even though they may have little experience in these
specialty areas of engineering. As previously pointed out, the
conversion of title acts to practice acts is an issue of equity and
fairness to the entire profession of engineering.
8. 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. Under this bill,
this standard of competency would 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.
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9. Policy Issue : Should a professional engineer be allowed to be in
responsible charge of work in the branch in which he or she is
educated, trained and licensed? BPC Section 6703 defines
"responsible charge of work" as the independent control and
direction, by the use of initiative, skill, and independent
judgment, of the investigation or design of professional
engineering work or the direct engineering control of such
projects. Board regulation (CCR � 404.1) provides that responsible
charge directly relates to the extent of control a professional
engineer is required to maintain while exercising independent
control and direction of professional engineering services or
creative work and to the engineering decisions which can be made
only by a professional engineer.
In determining the criteria for whether an engineer is in responsible
charge, CCR � 404.1 further states that certain elements must be
considered, and includes: "The professional engineer who signs
engineering documents must be capable of answering questions asked
by individuals who are licensed by the Board in the appropriate
branch of professional engineering relevant to the project and who
are fully competent and proficient by education and experience in
the field or fields of professional engineering relevant to the
project."
Proponents of this bill argue that a basic problem in professional
engineering practice, and a key reason why this bill is needed, is
that title act engineers are not currently permitted to be in
responsible charge of engineering projects in which they are
educated, experienced and proficient; and, instead, a civil
engineer must be in the position of responsible charge for
engineering projects within the title act engineer's field.
According to the proponents, this puts the civil engineer in the
position of signing off on work which he or she may have very
little knowledge about, which the engineer who is an expert in that
field is unable to sign off on his or her own work.
10.Policy Issue : Should any licensed engineer be permitted to
practice in any other branch of engineering provided they are by
competent and proficient in that branch by education or experience?
The latest amendments to the bill provide that any licensed
engineer may practice without limitation or restriction in any
practice area of engineering that he or she is competent and
proficient in by education or experience. The Sponsor argues that
these amendments are necessary in light of the Legislative Counsel
Opinion which concludes that only a licensed civil engineer may be
in responsible charge of designs, plans and specifications, and
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engineering reports for the fixed work components of an engineering
project.
The Sponsor contends that this restriction has been largely ignored,
resulting in numerous engineering projects that are out of
compliance with these terms. The Sponsor suggests that
federally-funded projects that require all engineering work to be
certified as in compliance with California law could be placed in
jeopardy.
The Sponsor further contends that if a licensed civil engineer were
placed in responsible charge of all such projects, that it could
create a condition in which the civil engineer may be practicing in
a field of engineering in which he or she may not be competent or
proficient. The Sponsor suggests that High Speed Rail, and local
Light Rail projects are fixed works that generally involve
electrical power systems (overhead catenary lines). The Sponsors
argue that a civil engineer may not be adequately qualified to
design the complex electrical structure necessary for such
projects. The Sponsor further gives the example of water
treatment, as an area in which the civil engineer may not be
competent or proficient. The civil engineer may build the
foundation for the water treatment tanks and basins, but the
process of water treatment is often beyond the scope of a civil
engineers competence. The engineer needs to be competent in
chemical engineering in order to address issues such as waste
medication in wastewater treatment plant designs, and to achieve
new regulatory agency permit limits.
As described above, in the past, this provision has been strongly
opposed by both ACEC and PECG, arguing that 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.
SUPPORT AND OPPOSITION:
Support :
University of Southern California, Viterbi School of Engineering
California State University Northridge, College of Engineering and
Computer Science
University of California Riverside, Bourns College of Engineering
Support (to Prior Version):
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California Farm Bureau Federation (Sponsor)
California Legislative Council of Professional Engineers (CLCPE)
California Fire Chiefs Association
Western Growers
Numerous individuals
Opposition (to Prior Version):
American Council of Engineering Companies
Professional Engineers in California Government
Consultant:G. V. Ayers