Legislature(1995 - 1996)
03/07/1995 01:35 PM L&C
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SL&C - 3/7/95 SB 99 ARCHITECT, ENGINEER & SURVEYOR REGULATION JOSH FINK, legislative aide to the Senate Labor and Commerce Committee, gave the following review of SB 99. SB 99 relates to the practice of architecture, engineering and land surveying. It seeks to clarify existing law pertaining to the regulation of these professions and return to current law exemptions which existed prior to 1990. SB 99 makes the following three changes: (1) it clarifies existing law as to when a registrant would be required to stamp a document under seal; (2) it would correct an ambiguity in the law which provides who can claim to be an architect, engineer, or land surveyor; and (3) it reintroduces an exemption for certain employees who do not offer their services to the public but practice engineering as part of their regular work duties for their employers. MR. FINK continued. Section 1 amends current language to require a registrant under the chapter to sign and stamp final drawings, specifications, surveys, plats, plates, reports and other similar documents. Current law requires all final documents to be signed and stamped under seal. SB 99 requires only documents from registered architects, engineers and land surveyors to be signed under seal. MR. FINK explained that certain members of the board felt they had authority to determine what documents had to be sealed and stamped. Others have taken the position that departments or businesses requesting such drawings could make that determination, limiting the board's duties to determining who was qualified to provide the stamp and seal. SB 99 clarifies that only documents produced by those professions under the board can stamp and seal. Section 2 tightens the law to prohibit the offer to practice the profession of architecture, engineering or land surveying unless the offering person is an architect, engineer, or land surveyor registered under the chapter. It would further prohibit the use of titles or descriptions tending to convey that a person is an architect, engineer, or land surveyor unless that person is duly registered. Number 073 Section 3, seeks to restore for officers or employees of a firm, partnership, corporation, or association, other than an electric utility, an exemption from licensure by the AELS Board. This exemption existed in law until 1990. This exemption would apply to those individuals who practice engineering only when required by the person's work duties connected with the person's employment if, and only if, the person's employer is not in the business of offering engineering services to the public. This covers in-house engineers, i.e., ARCO, BP, Usibelli Mine, native corporations and utilities, and any other businesses that utilize in-house engineers. Those companies were unaware of the removal of the exemption which occurred without debate. Last year, companies were made aware of the removal of the exemption and have found there is no way to operate under the revised statute. MR. FINK continued. In regard to telephone utilities, there are virtually no registered professional engineers specializing in telephone utilities in Alaska. Assuming enough engineers could be found, the cost to the consumer would be substantial, and there have been no reported problems under the exemption system. Removal of the exemption will have significant impacts on both utilities and customers, both in rates and the timeliness with which services are provided. Reinstitution of this exemption does not present the issue of licensing and regulation based on public protection. Licensure guarantees the public that a person holding himself out as a professional meets the minimum standards. An employee of a utility does not offer services to a customer. The utility itself offers service to the general public and the utility itself is responsible and liable for the job performance of its employees. The key is liability. SB 99 is an important vehicle which will allow utilities to continue to operate as they have been been within the letter of the law. In its present form, the law will force utilities to operate in a more costly and impractical manner which will result in significant delays and increase costs to customers. He asked those opposing SB 99 to note whether they are aware of any problems that have occurred. Number 148 CHUCK RUSSELL, an employee of United Utilities (UU), testified in support of the exemption for telephone utilities. UU is interested in having the law revert back to the pre-1990 status so that they can operate without the undue burden of trying to locate and hire professional engineers unnecessarily. DAVE ADAMS, a professional engineer, testified in opposition to Section 3 of SB 99. He did not disagree with what the sponsor is attempting to accomplish, but felt this particular exemption to be so broadly written that companies such as K-Mart, Walmart, etc., could construct facilities without ever having to hire a professional engineer or architect on the project. He felt the concept has merit, and agreed with the telephone companies that no one has ever been damaged by a fiber optic or telephone cable underground, but he expressed concern that the wording of subsection (10) is so fatally flawed that it needs to be completely rewritten. He noted the oil companies also have an interest in subsection (10). He informed committee members prior to the weekend informal meetings of professional engineers and representatives of the oil industry were held to try to work out acceptable language to meet all needs. For the time being, he recommended subsection (10) be completely stricken. Regarding Section 2, he stated HB 46, which predates SB 99, is the cleaner version of this. He requested Section 2 be amended. Number 177 MIKE TAURINIAN, a member of the Board of Architects, Engineers, and Land Surveyors (AELS), made the following comments on his own behalf. Regarding Section 1, original language required all final documents covered by AS 08.48 be sealed and signed by a registered architect, engineer, and/or land surveyor. The proposed language does not appear to restrict an unlicensed person from issuing final drawing specs, etc., so the change is slight and the intent is to conform with Section 3. Section 2 removes the word "registered," which is overly restrictive and confusing to the public, in the permissible use of the term "architect, engineer, or land surveyors." He felt this to be especially important in the use of the title of engineer which has been used generically for hundreds of years. The AELS Board did take action in opposition to SB 99 at its February meeting. He expressed concern that Section 3 would enable an individual to employ anyone they want to design structures, walls, treatment plants, or whatever, as long as they were not offering engineering services to the public. He explained SB 99 would also enable a national hotel chain to have in-house employees, not necessarily engineers, design a building, which would eventually be leased to the public. He felt that some activities should be exempted from initial registration requirements, and he noted the AELS Board has recently supported exemptions for electrical utilities. He recommended that the AELS Board be charged with finding and implementing appropriate exceptions via the regulatory process, as they have done in the past. This would relieve the Legislature from having to address technical issues of relative risk to the public associated with the nuances of engineering, design, etc. Number 259 SENATOR SALO asked if Mr. Taurinian's concern with Section 1 was that it allowed non-registered people to seal and sign official documents. MR. TAURINIAN responded that Section 1 does not restrict a non-registered person from issuing documents. He believed the intent of that language was to conform to the change in Section 3, subsection (10). SENATOR SALO asked if Mr. Taurinian was opposed to SB 99. He responded, "Yes, very much." Number 280 RANDY NELSON, representing G Alaska, testified in support of SB 99 and the exemption for telephone utilities to generate engineering documents for telecommunications type work within their exchanges for their own use. After 20 years in the industry, he has not worked in a state that requires a seal for such type of work. The documents (or specs) used by G Alaska are in accordance with the National Electric Safety Code, and either meet or exceed those requirements. He commented he was unaware of any problems that have resulted in the past. He stated the intent of an exemption was not to get into the engineering field of buildings or areas outside of the normal telecommunications field where requirements for building additions are contracted out to appropriate engineering firms. He concluded, "If it's not broken, don't fix it." BOB BELL expressed concern with subsection (10) of Section 3. He believed that if the AELS Board determines what documents need to be stamped, there would a conflict with the requirements of other agencies, such as DOT and the State Fire Marshall. He felt a compromise could be reached specific to benign engineering services. He explained in designing telephone systems, the design of the wires would pose no problem, but the design of the telephone pole itself would, because it could fall over. He believed the pole design should be stamped because of the life/safety factor. He stated projects such as underground cables of less than 120 volts, down-hole locations for an oil well, and reservoir engineering do not have life/safety factors, but projects that do generally require stamps from the agency that regulates the project. He believed a compromise could be reached if more time was available so that all of the people involved could get together and come up with wording for subsection (10) to make it more acceptable. He agreed with David Adams that the original intent of the bill was to tighten up the term "engineer" because it is used indiscriminately and conveys the wrong message to the public. He recommended making that change and drafting consistent language to make the bill more acceptable to all people involved. SENATOR TORGERSON asked Mr. Bell who he was representing. MR. BELL stated he was representing himself, as a registered professional engineer and land surveyor. Number 371 SENATOR SALO asked Mr. Bell what direction the compromise should go in and if adding the following language would address his concerns. "Not withstanding any of the exemption provisions in this section where statutes or regulations require a seal it shall be done by a professional engineer." MR. BELL suggested narrowing the language to try to cover benign type engineering projects. Otherwise, a list of what agency governs what type of project, depending on the location, would need to be created. SENATOR SALO discussed whether or not an established quality of service is the issue, or whether it is about which test is taken. She noted that in a discussion with a major oil company, it came to her attention that all of their engineers are licensed, but not necessarily so in the state of Alaska. They are concerned that their engineers may be required to study for, and take, the test in the state of Alaska, which is very time consuming, even though their jobs are very specialized. MR. BELL responded, that as far as the oil companies go, most engineers can become registered by reciprocity, and the only additional requirement is that one must take a course in engineering. If an oil engineer was designing an above-ground facility, he/she would need that expertise. He/she would be required to stamp the drawing, which would be stamped by the fire marshall also. Number 431 AL DICKENS, representing Arctic Slope Telephone, stated his opposition to requiring telephone companies to hire professional engineers to seal design specifications. He explained it would create delays and additional costs, and those services would be used on a part-time basis only. He did not agree the issue was one of safety, as telephone companies have operated successfully for over 100 years without that requirement. GARY HAYNES, Vice President of Operations for Prime Cable and Vice President of Alaska Cable Television Association, stated he supported subsection (10). He stated his associations are unaware of any problems that would motivate the changes. TOM CRAFFORD, a geologist with Cook Inlet Region Incorporated (CIRI), and former geologist with the Greens Creek Mine, testified in support of SB 99. He stated he was unaware of any existing problems. TOM SCARBOROUGH, representing himself, expressed concern about the same paragraph mentioned by others. He was concerned that because native corporations do a large amount of water and sewer projects in the bush, they would not be required to put registered engineers on staff to do the design work, circumventing the wish of the AELS Board. There is nothing in SB 99 to prevent that and the health and safety of the public would be at stake. They tried to do this with land surveying but it could not be done because there is no exemption. Number 482 VICTOR WILLIS, Nushagak Telephone and Electric, testified in favor of SB 99. Most of Nushagak's telephone plant is underground and most work is run-of-the-mill work governed by [indis.] regulations and guidelines. It poses no hazard to the public. He believed the exemption should be allowed for telephone companies. STEVE BORELL, Executive Director of the Alaska Miners' Association, stated his support of the intent of Section 3, as it is common practice within the mining industry, and has not created any problems. Federal laws specify the instances where projects need to be signed off before they can be completed. He noted mining engineers are often involved in projects with safety concerns which are covered by federal requirements. In the six states he has worked in as an engineer, no other state requires on-mine site engineers employed by a mining company to be registered. COLIN MAYNARD, a member of the Alaska Professional Design Council (APDC), a group of approximately 10 different architectural, engineering and land surveying services, representing about 1200 registrants, testified in opposition to SB 99, particularly Sections 1 and 3. The semantic change in Section 1 would allow non-registered people to issue documents which could endanger public safety. The APDC is more concerned with Section 3 because it is overly broad. The AELS Board has worked with electric utilities, the one group that has been exempted, to decide what projects do, and don't, pose a danger to public safety. The electric utilities are satisfied with the present system, therefore he felt other industries could work with the AELS Board. The APDC is not opposed to exempting the telecommunications industry, but was not knowledgeable enough about the mining industry to have an opinion. He questioned why there are registered mining engineers if most states do not require registration. He saw the biggest problem occuring when a builder hires an unregistered person with little or no experience. He noted up until 10 years ago the Municipality of Anchorage did not check to see if drawings were stamped until the AELS Board intervened. He expressed concern if stamped drawings are not required by state law, there is nothing to prevent the municipality from reverting back to that. Presently there is no state building code, and no enforcement of any building code outside of Anchorage, Juneau, and Fairbanks, and possibly parts of the Kenai Peninsula. The only review of drawings is done by the State Fire Marshall who looks for fire-related safety issues. There is no review of mechanical or electrical drawings; they only check the structural drawings to make sure that the loads are about what they think it should be. There is no review of whether those drawings are adequate or not. The only current safeguard in commercial building design outside of the three municipal areas is the fact that licensed practitioners do those drawings. If that exemption is removed, public safety will be greatly endangered. BYRON HAYNES, representing himself, stated in his company there are both registered and nonregistered engineers. He noted while his company is endeavoring to comply with the Alaska registered engineers statute, his ability to move engineers to Alaska by the laws of the in-house exemption of registered engineers places a restriction on the ability of the company to best utilize their people. He supports SB 99 and the exemption for engineers who practice for a single company from issuance of [indis.] requirements. Engineers who have to be covered by such an exemption are not offering their services to the public, only to the company that employs them. Those companies are very mindful of their status and liability issues for the acts of their engineers. This requires them to be more vigilant in ensuring that the highest level of professional standards are met. The best method of protection for the public is served by SB 99. Many regulations apply through different state departments. Under federal law there are 148 regulations required involving registered engineers. These regulations cover the safety and welfare of Alaska citizens. He asked for the committee's support of SB 99. DICK ARMSTRONG, chair of the AELS Board, testified in opposition to SB 99. He stated the Division of Occupational Licensing polled all board members with the same result. He opposed SB 99 for the following reasons. If Section 1 is adopted, unlicensed people may prepare financial specifications for reports without having to seal their work product. It also implies they do not have to accept responsibility for the design. There is no way that this will enhance public safety, rather it will open the doors for potentially unqualified designers or self proclaimed engineers. He proposed including language that would allow the AELS Board to define specific exemptions based on the relative risk to the public. Number 553 PAULA ELLER, (indisc.) Yukon Telephone and Power Company, an association of 12 small companies in rural Alaska, expressed concern about requiring professional engineers to sign off, or be on site, during any construction projects. She believed the service would become unaffordable. She stated there are 101 small electric utilities and not enough professional engineers to go around. Number 542 LANCE MEARIG, President-elect of the Juneau branch of the American Society of Civil Engineers, represented himself as a registered engineer in Alaska. He opposed Section 1 of SB 99 and suggested retaining the existing language. He had no position on Section 2, but was opposed to subsection (10) of Section 3 as he did not believe there are existing controls in place to ensure public safety. He explained that in many small municipalities, there are no requirements for registered engineers to stamp drawings or specifications when state or federal money is not involved. Number 525 SENATOR LEMAN commented he was disappointed to see SB 99 introduced because he was working with a number of the utility companies who were testifying on compromise language with the intent of amending SB 43. He believed SB 99 provides too broad of an exemption and he preferred narrowing the exemption. He agreed that nearly all of the underground work does not need to be stamped by an engineer since it is low voltage and public safety is not threatened. He believed the work done this past summer by the AELS Board and utilities is an appropriate solution and he felt cable TV falls in the same category as telephone utilities. He also believed exemptions may be appropriate for certain industries, but crafting the concept more narrowly would be the better approach. He suggested narrowing the exemptions and providing for additional exemptions that may be authorized by the board. The AELS Board would then become the board of appeal where proposals could be presented and exempted when appropriate. In summary, he felt Section 3 should be rewritten. CATHERINE REARDON, Director of the Division of Occupational Licensing, testified. She noted, from an administrative point of view, SB 99 is not difficult to implement and would have no fiscal impact. The Division views its responsibility as protecting the consumer and health and safety of the public. She hoped for a resolution which permits industry to operate in the state while simultaneously protecting health and safety concerns. Number 478 JIM ROE, Executive Director of the Alaska Telephone Association, supported SB 99 because it is in the public interest. It would allow local exchange carriers to build telephone infrastructure, allow Alaskans access to telephone service, and not burden customers with increased rates. There is no record of unsafe or substandard infrastructure construction by local telephone companies in the state. Prior to 1990, as a number of people have already testified, this exemption was permitted for all utilities as well as other corporations. It was removed without discussion. The ATA discovered the change one and one-half years ago and has been in noncompliance since that time. There are 26 states that do exempt all utility engineers from the licensure requirement. Regarding Section 3, he said it is the same as language that existed prior to 1990, with the exclusion of the electric utilities. He stated he was unaware of any buildings constructed by large corporations prior to 1990, that were designed by other than professional architects or engineers. He thanked Senator Leman for his willingness to work with ATA on the issue, but he stated during meetings, they were unable to narrow down language that would give the telephone utility the exemption they need. ATA believes it is better to have the public interest defined by the Legislature than by a regulatory board that has an obviously vested interest in the issue. Without SB 99, the government will continue to regulate a problem that does not exist. Number 448 GRAHAM ROLSTAD, interim president CEO of Matanuska Telephone, Chairman of the Engineering and Planning Committee of the Alaska Telephone Association, and a registered professional engineer in the State of Alaska, testified. He stated he has been in the telephone industry for 30 years, primarily in an engineering capacity. He has worked in three states and has never had to seal a drawing; he believed that requirement for in-house engineers is unnecessary to produce quality products and produce the engineering for a specialty that is vitally needed. Most of the engineers he worked with over the years have not been professional engineers. He supported SB 99 as he believed it is in the public interest to restore the telephone industry exemption. MTA's engineers are not degreed engineers; they are trained in-house on specifications that have been utilized for a number of years and are continually under review by telephone companies nationwide. They do take into consideration public safety, national electric safety codes, good engineering standards for the customer, cost factors, and are there to serve the public. They are specialists in their field and most would be unable to pass a professional engineer exam because the exam is more geared toward the degreed engineer with a broader base than specialized training. SB 99 would create a situation where a great deal of very talented engineers would no longer be able to perform their task for the companies they are employed by if this exemption is not reenacted. Mr. Rolmstead stated he tried to work out some type of arrangements for the telephone utilities to work through the regulations with Mr. Armstrong last year, to see if a compromise could be reached, however they were unable to come to an agreement therefore the ATA has come to the conclusion that legislation is the best route to use for ATA and its companies to rectify the situation. He stated they do not want to operate in violation of the law, but feel it is a necessary evil. He urged the committee's support of SB 99. SENATOR TORGERSON stated the committee would not take action on SB 99 during the meeting as it needs more work. GEORGE FINDLING, manager of government relations for ARCO Alaska, and a registered professional engineer in California, testified. He stated the Occupational Licensing Board regulates the behavior of individuals which is the reason for his support of SB 99. He supported Section 1 because it clarifies in statute that the Board of Occupational Licensing will determine how to use the seal. Regarding the issue of how to prevent unlicensed engineers from issuing unsealed drawings, ARCO Alaska has found that through other regulations, i.e., building codes, fire marshall codes, etc., the industry is highly regulated, and professional engineers have to seal drawings that could affect the public. He stated a mild dislike for Section 2 because there are not two words for "engineer" as there are in the legal profession for "lawyer," who is someone who has graduated, and "attorney" who is licensed and certified. He stated the statute is inconsistent. He suggested resolving the issue by only allowing registered engineers to call themselves registered engineers. Regarding Section 3, he commented 36 states have exemptions similar to SB 99. He stated they are working toward a compromise to see if they can find "belt and suspenders" language to those particular cases where there might be a concern that the regulations that would belong in other areas of the government are not working well.