PROPOSED RULEMAKINGS

[ 49 PA. CODE CH. 43b ]

Schedule of Civil Penalties—Engineers, Land Surveyors and Geologists

[41 Pa.B. 4538]
[Saturday, August 20, 2011]

 The Commissioner of Professional and Occupational Affairs (Commissioner) proposes to amend § 43b.13a (relating to schedule of civil penalties—engineers, land surveyors and geologists) to read as set forth in Annex A.

Effective Date

 The proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.

Statutory Authority

 Section 5(a) of the act of July 2, 1993 (P. L. 345, No. 48) (Act 48) (63 P. S. § 2205(a)) authorizes the Commissioner, after consultation with licensing boards in the Bureau of Professional and Occupational Affairs (Bureau), to promulgate a schedule of civil penalties for violations of the acts or regulations of the licensing boards.

Background and Need for the Amendment

 Act 48 authorizes agents of the Bureau to issue citations and impose civil penalties under schedules adopted by the Commissioner in consultation with the Bureau's licensing boards. 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 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. 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, 2011).

 Section 3(a) of the Engineer, Land Surveyor and Geologist Registration Law (act) (63 P. S. § 150(a)) makes it ''unlawful for any person to practice or to offer to practice engineering in this Commonwealth, unless he is licensed and registered under the laws of this Commonwealth as a professional engineer'' and similarly prohibits unlicensed practice of land surveying and geology. Section 3(b) of the act provides that a person is construed to practice or offer to practice engineering, land surveying or geology if the person, among other things, ''by verbal claim, sign, advertisement, letterhead, card, or in any other way represents himself to be an engineer, land surveyor or geologist, or through the use of some other title implies that he is an engineer, land surveyor or geologist or that he is registered under this act.'' The prohibition against unlicensed practice applies also to practicing while one's license is lapsed; that is, the license was not renewed upon expiration. See § 37.18(3) (relating to reactivation of licensure status), which provides that a licensee whose license has lapsed due to failure to register biennially with the Board is prohibited from the practice of that profession in this Commonwealth unless the licensure status is reactivated. Section 4(e) of the act (63 P. S. § 151(e)) authorizes the Board, among other thing, to require licensees to register biennially with the Board and to collect the biennial registration fee, issue biennial registration to those licensees who renew, suspend the licenses of persons who do not renew and reinstate the licenses of those persons who thereafter renew and pay the registration fees. To enforce these provisions, section 11(b) of the act (63 P. S. § 158(b)) authorizes the Board to levy a civil penalty of up to $1,000 on a licensee who violates a provision of the act or on a person who practices the profession without being properly licensed to do so. Section 5(b)(4) of Act 48 authorizes the Board, as a licensing board within the Bureau, to levy a civil penalty of not more than $10,000 on a licensee or unlicensed person who violates a provision of the act or Board regulations. However, section 5(a) of Act 48 limits the civil penalty levied by citation to no more than $1,000 per violation. This authority to levy a civil penalty is in addition to the Board's authority under section 4(g) of the act to suspend or revoke the license and registration of a licensee who has, among other things, committed misconduct in the practice of the profession, which includes violating a provision of the act or Board regulations.

 The Board's current Act 48 schedule of civil penalties authorizes issuance of a citation under section 4(g) of the act for representing oneself as an engineer, land surveyor or geologist on a sign, advertisement, letterhead or card without being licensed or registered and provides that the penalty for a first offense is a civil penalty of $1,000 and for a subsequent offense is formal action. It is generally simpler and more straightforward and therefore more amenable to the streamlined procedures in Act 48 to prove that a person offered to practice the profession by holding himself out as an engineer, land surveyor or geologist through use of a business card or other medium than to prove that the person actually practiced the profession. Charges of actually practicing the profession are brought only through the traditional process of filing an order to show cause, an answer from the respondent and full hearing. The current schedule also authorizes issuance of a citation under section 4(e) of the act for biennial renewal—practicing on a lapsed license or registration and provides that the penalty for a first offense is a civil penalty of $500 for practice up through 5 months or $1,000 for practice from 6 months to a year and for a subsequent offense is formal action.

 In the recent case of Evans v. State Reg. Bd. for Prof. Engineers, Land Surveyors and Geologists, 15 A.3d 99 (Pa. Cmwlth. 2011), the court reversed the Board's order sustaining a citation issued under section 4(e) of the act for practicing geology on a lapsed license. Because section 4(e) of the act empowers the Board to do many tasks but does not impose duties on licensees, the court held that a licensee cannot be disciplined for ''violating'' this section of the act. The court also noted that a licensee can no more ''violate'' a section of the act providing a definition (as does section 3(b) of the act) than ''violate'' a section of the act that provides the Board's authority (as does section 4(e) of the act). The court opined that the Commonwealth should have charged under section 3(a) of the act, as construed by section 3(b) of the act and in light of the Board's authority under section 4(e) of the act. The court further noted its understanding that the Commonwealth issued the citation referencing section 4(e) of the act because the Board's Act 48 schedule does not mention section 3(a) of the act, but only provides for sections 3(b) and 4(e) of the act for unlicensed practice by holding out and for practice on a lapsed license, respectively.

Description of the Proposed Amendments

 The Commissioner, in consultation with the Board, proposes to amend the Board's schedule to correct the deficiencies noted by the Commonwealth Court. Instead of a citation for unlicensed practice by holding out refer- encing only section 3(b) of the act, the schedule would reference section 3(a) of the act and describe the violation as ''offering to practice engineering, land surveying or geology by representing oneself as an engineer, land surveyor or geologist on sign, advertisement, letterhead or card, as construed by section 150(b), without being licensed or registered.'' Instead of a citation for practice on a lapsed license referencing section 4(e) of the act, the schedule would reference § 37.18(3) and use the language of that section to describe the violation as ''practicing after license and registration have lapsed, while in compliance with continuing education requirements.'' The Board's regulation in § 37.19(c)(5) (relating to biennial renewal of licensure status) requires a licensee to verify compliance with the continuing education requirements as a condition of licensure renewal. Section 37.111(d) (relating to continuing education) provides that a licensee who failed to complete the required amount of continuing education is subject to an Act 48 citation and is required to make up all deficient continuing education. Because of the greater risk of harm to the public by a licensee continuing to practice after expiration of the license without renewing due to having failed to complete the required amount of continuing education, a combination of violations should normally be addressed through formal action. However, it is not the Board's intention that the Commonwealth would be precluded from issuing both citations to a licensee who did not complete the required amount of continuing education and did not renew but continued to practice and who subsequently cured the deficiency in continuing education and reactivated the license before the end of that biennial renewal cycle. The maximum civil penalty of $1,000 is appropriate for a licensee who has continued to practice an entire biennial renewal cycle on a lapsed license. Because the biennial renewal cycle is 24 months, the schedule would provide that the civil penalty is $50 per month up to a maximum of $1,000.

 Subsequent violations of practicing on a lapsed license for less than one renewal cycle would also be subject to an Act 48 citation and does not need to proceed through the formal disciplinary process. Because practice for an extended period of time might suggest the need to impose additional sanctions, violations of practice on a lapsed license for more than one renewal cycle would proceed through the formal disciplinary process. The Board has concluded that the amount of the civil penalty for practicing on a lapsed license should be proportionate to the length of time from expiration of the license until the licensee has reactivated the license.

Fiscal Impact and Paperwork Requirements

 The proposed rulemaking should not have adverse fiscal impact on the Commonwealth, its political subdivisions or the private sector. The proposed rulemaking will not impose additional paperwork requirements upon the Commonwealth, its political subdivisions or the private sector. To the extent that the proposed rulemaking corrects the references in the Act 48 citation schedule, there will not be fiscal impact. Moreover, to the extent the proposed rulemaking also provides for additional violations of the act and Board regulations to be prosecuted through the issuance of a citation rather than formal action, the proposed rulemaking will reduce the paperwork requirements of both the Commonwealth and the regulated community by eliminating the need for orders to show cause, answers, consent agreements and adjudications/orders for those violations subject to the Act 48 citation process.

Sunset Date

 Professional licensure statutes require each board to be self-supporting. Therefore, the Commissioner and the boards continuously monitor the cost effectiveness of their regulations. As a result, a sunset date has not been assigned.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 8, 2011, the Commissioner submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House Professional Licensure Committee (HPLC) and the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC). A copy of this material is available to the public upon request.

 Under section 5(g) of the Regulatory Review Act, IRRC may convey comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.

Public Comment

 Interested persons are invited to submit written comments, recommendations or objections regarding this proposed rulemaking to Regulatory Unit Counsel, Department of State, P. O. Box 2649, Harrisburg, PA 17105-2649, ST-ENGINEER@state.pa.us, within 30 days of publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference No. 16A-54 (schedule of civil penalties—engineers, land surveyors and geologists) when submitting comments.

KATIE TRUE, 
Commissioner

 Fiscal Note: 16A-54. No fiscal impact; (8) recommends adoption.

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

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Violation Under 63 P. S.	Title/Description	Penalties
Section [150(b)] 150(a)	[Representing] Offering to practice engineering, land surveying or geology in this Commonwealth by representing oneself as an engineer, land surveyor or geologist on sign, advertisement, letterhead or card, as construed by section 150(b), without being licensed or registered	1st offense—$1,000   2nd offense—formal action
[Section 151(e)	Biennial renewal—Practicing on a lapsed license or registration	1st offense— Up thru 5 months—$500 6 months thru 1 year—$1,000 over 1 year—formal action   2nd offense—formal action]
Violation Under 49 Pa. Code Chapter 37	Title/Description	Penalties
Section 37.18(3)	Practicing engineering, land surveying or geology in this Commonwealth after license and registration have lapsed (while in compliance with continuing education requirements)	One renewal cycle or less—$50 per month lapsed, not to exceed $1,000   More than one renewal cycle—formal action

[Pa.B. Doc. No. 11-1429. Filed for public inspection August 19, 2011, 9:00 a.m.]

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