RULES AND REGULATIONS
BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
[ 49 PA. CODE CH. 43b ]
Schedule of Civil Penalties Engineers, Land Surveyors and Geologists
[41 Pa.B. 2853]
[Saturday, June 4, 2011]The Commissioner of Professional and Occupational Affairs (Commissioner) amends § 43b.13a (relating to schedule of civil penalties—engineers, land surveyors and geologists) to read as set forth in Annex A.
Description and Need for the Rulemaking
Section 5(a) of the act of July 2, 1993 (P. L. 345, No. 48) (Act 48) (63 P. S. § 2205(a)) authorizes agents of the Bureau of Professional and Occupational Affairs (Bureau) to issue citations and impose civil penalties under schedules adopted by the Commissioner in consultation with the Bureau's licensing boards. It further provides that any penalty will not exceed the sum of $1,000 per violation. Act 48 citations streamline the disciplinary process by eliminating the need for formal orders to show cause, answers, adjudications and orders, and consent agreements. At the same time, licensees who receive an Act 48 citation have the right to a hearing and retain their due process right of appeal prior to the imposition of discipline. The use of Act 48 citations has increased steadily since 1996, when the program was first implemented, and they have become an important part of the Bureau's enforcement efforts, with approximately 30% of all sanctions imposed by the licensing boards being accomplished through the Act 48 citation process. The State Registration Board for Professional Engineers, Land Surveyors and Geologists (Board) has had an Act 48 schedule of civil penalties since 2001. See 31 Pa.B. 1227 (March 3, 2001)).
Section 4.5(a) of the Engineer, Land Surveyor and Geologist Registration Law (act) (63 P. S. § 151.5(a)) requires licensees to complete 24 hours of mandatory continuing education during each biennial renewal period as a condition of license renewal. Through a separate final-form rulemaking (16A-4710), the Board is adopting regulations to implement the mandatory continuing education requirements. As is being done for other licensing boards with continuing education requirements, the Commissioner is adopting in this final-form rulemaking a civil penalty schedule for violation of the continuing education requirements for licensees of the Board because the Commissioner and Board believe the Act 48 citation process will be a much more efficient method of handling violations while still ensuring licensees due process. Payment of the civil penalty does not relieve a licensee of the obligation to complete the required amount of mandatory continuing education. Under a separate final-form rulemaking, the Board is requiring a licensee who fails to complete the required amount of mandatory continuing education during the biennial renewal period to complete the required continuing education during the next 6 months. Failure to complete the required continuing education by that deadline will subject the licensee to formal disciplinary action.
The Commissioner, in consultation with the Board, determined that a first offense violation of failing to complete the required amount of mandatory continuing education during the biennial renewal period would be subject to a civil penalty of $50 for each hour that the licensee is deficient, up to a maximum of $1,000. Second and subsequent offenses would not be subject to an Act 48 citation but rather would proceed through the formal disciplinary process. The Board's final-form rulemaking requires that the licensee also make up the deficiency within 6 months or face formal disciplinary action.
Summary of Comments and Responses to Proposed Rulemaking
The Commissioner published a notice of proposed rulemaking at 39 Pa.B. 2206 (May 2, 2009) with a 30-day public comment period. The Board did not receive written comments from the public. The Board received comments from the House Professional Licensure Committee (HPLC) and the Independent Regulatory Review Commission (IRRC) as part of its review of proposed rulemaking under the Regulatory Review Act (71 P. S. §§ 745.1—745.12). The Board did not receive comments from the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC).
The HPLC noted that the act of November 29, 2006 (P. L. 1534, No. 170) (Act 170), which first added mandatory continuing education, required the Board to promulgate regulations implementing the continuing education requirement within 18 months of its effective date, that is, by July 28, 2008. The Board acknowledges that this date was not met. Subsequently, the act of May 12, 2010 (P. L. 192, No. 25) (Act 25) repealed this provision in Act 170. Instead, under section 5 of Act 25, licensees shall begin to comply with the continuing education requirement during the 2009-2011 biennial renewal cycle. Because the Act 25 amendments did not become effective until July 11, 2010, approximately 8 1/2 months into the 24-month 2009-2011 renewal cycle, the Board concluded that it should give licensees additional time to complete the requirements for the 2009-2011 cycle. As previously referenced and explained in greater detail in the Board's final-form rulemaking, licensees who have not completed the continuing education requirement by the end of the renewal period will be subject to citation for a civil penalty based upon the amount of deficiency and be required to make up the entire deficiency within 6 months; this does not apply to a licensee who permits the license to expire and makes up the deficiency prior to reactivating the license upon documentation of making up that deficiency. The Board determined that for the first cycle with mandatory continuing education, licensees who make up the deficiency in full within the first 6 months will not be subject to a civil penalty.
IRRC requested an explanation of how the proposed amount of civil penalty was determined. Under section 5(a) of Act 48, the maximum civil penalty that the Board may impose by citation for a violation of the act or Board regulations is $1,000. To provide a significant deterrence against failing to complete continuing education in a timely manner, the Board concluded that this maximum amount is an appropriate civil penalty for a licensee who completes none of the mandatory continuing education. Those whose deficiency is less should be assessed a proportionately lesser civil penalty. Because 24 hours of continuing education are required, the Board calculated that the scheduled civil penalty should be $1,000 divided by 24 hours, rounded up to $50 per hour.
While addressing the previous questions, as well as other questions raised by the HPLC and IRRC in regard to the Board's rulemaking, the Board considered its audit process in more detail. In doing so, the Board realized that its regulations do not impose specific obligation upon a licensee to comply with the audit. Accordingly, in § 37.111(f) (relating to continuing education), the Board requires a licensee to respond to an audit request within 30 days or another time period specified in the audit request. The Commissioner, in consultation with the Board, added this violation to the schedule of civil penalties. The schedule provides a first violation civil penalty of $100, increased to $250 for a second violation and $500 for a third violation and formal action for subsequent violations. The Board envisions that a licensee who fails to comply with an audit request will be given a citation and another audit request. The process may be repeated until the licensee's fourth refusal demonstrates that the Board should consider whether to suspend the licensee's license or impose other discipline for failure to provide proof of continuing education.
Fiscal Impact and Paperwork Requirements
The final-form rulemaking will not have adverse fiscal impact on the Commonwealth, its political subdivisions or the private sector. The final-form rulemaking will not impose additional paperwork requirements upon the Commonwealth, its political subdivisions or the private sector.
Effective Date
The final-form rulemaking will become effective upon publication in the Pennsylvania Bulletin.
Statutory Authority
This rulemaking is authorized by section 5(a) of Act 48.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 22, 2009, the Board submitted a copy of the notice of proposed rulemaking, published at 39 Pa.B. 2206, to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments from IRRC, the HPLC, the SCP/PLC and the public.
On September 3, 2010, the Board delivered final-form rulemaking to IRRC, the HPLC and the SCP/PLC. Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on September 21, 2010, the final-form rulemaking was approved by the HPLC. On October 6, 2010, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 7, 2010, and disapproved the final-form rulemaking.
The Board did not revise the final-form rulemaking in response to IRRC's disapproval. The Board redelivered the final-form rulemaking, together with the supporting report required by section 7(b) of the Regulatory Review Act (71 P. S. § 745.7(b)), to IRRC, the HPLC and the SCP/PLC on November 24, 2010.
Under section 7(d) of the Regulatory Review Act, on March 1, 2011, the final-form rulemaking was approved by the HPLC and the SCP/PLC. section 7(c.1) of the Regulatory Review Act, IRRC met on December 16, 2010, and approved the final-form rulemaking.
Additional Information
Persons who require additional information about the final-form rulemaking should submit inquiries to Regulatory Unit Counsel, Department of State, P. O. Box 2649, Harrisburg, PA 17105-2649, (717) 783-7049, st-engineer@ state.pa.us.
Findings
The Commissioner finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) The amendments to this final-form rulemaking do not enlarge the scope of proposed rulemaking published at 39 Pa.B. 2206.
(4) The final-form rulemaking adopted by this order is necessary and appropriate for the administration of the authorizing acts set forth in this preamble.
Order
The Commissioner, acting under Act 48, orders that:
(a) The regulations of the Commissioner, 49 Pa. Code Chapter 43b, are amended by amending § 43b.13a to read as set forth in Annex A.
(b) The Bureau shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval as required by law.
(c) The Bureau shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) The final-form rulemaking shall take effect upon publication in the Pennsylvania Bulletin.
KATIE TRUE,
Acting Commissioner(Editor's Note: See 41 Pa.B. 2847 (June 4, 2011) for the Board's final-form rulemaking relating to this final-form rulemaking.)
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 41 Pa.B. 118 (January 1, 2011).)
Fiscal Note: Fiscal Note 16-43 remains valid for the final adoption of the subject regulation.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 43b. COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
SCHEDULE OF CIVIL PENALTIES, GUIDELINES FOR IMPOSITION OF CIVIL PENALTIES AND PROCEDURES FOR APPEAL § 43b.13a. Schedule of civil penalties—engineers, land surveyors and geologists.
STATE REGISTRATION BOARD FOR PROFESSIONAL ENGINEERS,
LAND SURVEYORS AND GEOLOGISTS
Violation Under 63 P. S. Title/Description Penalties Section 150(b) Representing oneself as an engineer, land surveyor or geologist on sign, advertisement, letterhead or card, without being licensed or registered 1st offense—$1,000
2nd offense—formal actionSection 151(e) Biennial renewal—Practicing on a lapsed license or registration 1st offense—
Up through 5 months—$500
6 months through 1 year—$1,000
over 1 year—formal action
2nd offense—formal actionSection 151.5(a) Failure to complete the required amount of continuing education First offense—$50 per hour of deficiency, not to exceed $1,000
Subsequent offense—formal actionViolation Under 49 Pa. Code Chapter 37 Title/Description Penalties Section 37.111(f) Failure to respond to continuing education audit request within 30 days or other time period in audit request First offense—$100
Second offense—$250
Third offense—$500
Subsequent offense—formal action
[Pa.B. Doc. No. 11-937. Filed for public inspection June 3, 2011, 9:00 a.m.]
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