RULES AND REGULATIONS

BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

[ 49 PA. CODE CH. 43b ]

Schedule of Civil Penalties—Engineers, Land Surveyors and Geologists

[42 Pa.B. 5493]
[Saturday, August 25, 2012]

 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 Final-Form 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 a penalty may not exceed $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, a licensee who receives an Act 48 citation has the right to a hearing and retains his due process right of appeal prior to the imposition of discipline. 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).

 The Board reviewed its entire Act 48 schedule following the decision in 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 to Timothy Evans under section 4(e) of the Engineer, Land Surveyor and Geologist Registration Law (act) (63 P. S. § 151(e)) for practicing geology on a lapsed license, including by holding himself out as a licensee. Section 3(a) of the 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 the 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 authorizes the Board, among other things, to require licensees to register biennially with the Board and to collect the biennial registration fee, to issue biennial registration to those licensees who renew, to suspend the licenses of persons who do not renew and to reinstate the licenses of those persons who thereafter renew and pay the registration fees. Because section 4(e) of the act empowers the Board to do many tasks but does not impose any 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, based upon allegations of practicing on a lapsed license by holding oneself out as a licensee, the Commonwealth should have charged under section 3(a) of the act that generally prohibits unlicensed practice, as section 3(b) of the act construes holding oneself out as a licensee to be, 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 did not mention section 3(a) of the act, but only provided for sections 3(b) and 4(e) of the act for unlicensed practice by holding out and for practice on a lapsed license, respectively.

 As previously indicated, the Board's Act 48 schedule of civil penalties formerly authorized issuance of a citation under section 4(e) of the act for first offense of ''biennial renewal—practicing on a lapsed license or registration.'' In accordance with the holding in Evans, the Board deletes this provision. In its place, the Board provides for a citation for violating § 37.18(3) by practicing on a lapsed license for less than one renewal cycle while in compliance with the continuing education requirements. The Board did not include a provision for practicing on a lapsed license while not in compliance with the continuing education requirements.

 The schedule formerly authorized issuance of a citation under section 3(b) of the act for ''representing oneself as an engineer, land surveyor or geologist on sign, advertisement, letterhead or card, without being licensed or registered.'' This schedule provides that the penalty for a first offense is a civil penalty of $1,000 and for a subsequent offense is formal action. Following the holding in Evans, the Board is amending this description to make clear that the citation is for violating section 3(a) of the act as construed by section 3(b) of the act and not simply for ''violating'' section 3(b) of the act.

Summary of Comments and Responses to Proposed Rulemaking

 The Commissioner published a notice of proposed rulemaking at 41 Pa.B. 4538 (August 20, 2011) 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). The Independent Regulatory Review Commission (IRRC) notified the Board that it did not have comments. The Board did not receive comments from the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC).

 The HPLC recommended either deleting the § 37.18 provision or adding another provision to address practicing on a lapsed license without being in compliance with the continuing education requirements along with a harsher penalty for this violation. The Board agrees that a licensee who has not completed the continuing education requirements and continues to practice despite not renewing (for which completion of continuing education is a condition) generally merits a harsher sanction than a licensee who has completed the required continuing education and continues to practice despite simply failing to complete the necessary paperwork and pay the fee. For this reason, the Board intends that licensees who are charged with practicing on a lapsed license while not in compliance with the continuing education requirements should not simply receive a citation with a maximum civil penalty of $1,000. Instead, charges should be addressed through formal action for which the maximum sanction would be the suspension or revocation of the license and a civil penalty of $10,000. See section 4(g) of the act (the Board may suspend or revoke the license of a licensee who commits misconduct in the practice of the profession, including violating a provision of the act or Board regulations); section 11(b) of the act (63 P. S. § 158(b)) (the Board may levy a civil penalty on a licensee who violates a the act or on a person who practices the profession without being properly licensed to do so); and section 5(b)(4) of Act 48 (a licensing board may levy civil penalty of up to $10,000 on a licensee who violates a provision of the applicable licensing act or board regulation). Because this remedy is available by means of formal action for anything not on the Act 48 schedule of civil penalties, the Board has not revised its schedule in response to this comment.

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 final-form 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 August 8, 2011, the Board submitted a copy of the notice of proposed rulemaking, published at 41 Pa.B. 4538, 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.

 Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on June 13, 2012, the final-form rulemaking was approved by the HPLC. On July 18, 2012, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5(g) of the Regulatory Review Act, the final-form rulemaking was deemed approved by IRRC effective July 18, 2012.

Additional Information

 Persons who require additional information about the final-form rulemaking should submit inquiries to the Regulatory Unit Counsel, Department of State, P. O. Box 2649, Harrisburg, PA 17105-2649, (717) 783-7049, st-engineer@pa.gov.

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) This final-form rulemaking does not include any amendments that would enlarge the scope of proposed rulemaking published at 41 Pa.B. 4538.

 (4) The final-form rulemaking adopted by this order is necessary and appropriate for the administration of the authorizing act set forth in this preamble.

Order

 The Commissioner, acting under the authority of 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, 
Commissioner

 (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 42 Pa.B. 4992 (August 4, 2012).)

 Fiscal Note: Fiscal Note 16A-54 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(a)	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 63 P. S. § 150(b), without being licensed or registered	1st offense—$1,000   2nd offense—formal action
Section 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 action

Violation 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
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. 12-1638. Filed for public inspection August 24, 2012, 9:00 a.m.]

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