MALSCE Government Affairs Update - January 2022

by Abbie Goodman, MALSCE Chief of External Affairs

MALSCE Government Affairs Update - December 2021 - January 2022

New MassDOT Directive E-21-005: Subsurface Utility Engineering (SUE) Issued 12/21/2022

Effective immediately, all new projects approved by the Project Review Committee (PRC) and
anticipated to involve subsurface utility relocations shall include scope and workhour provisions
for the completion of Subsurface Utility Engineering (SUE) Level B during the project design
phase. This requirement applies to all new projects, regardless of whether MassDOT, a
municipality or another entity is responsible for funding the design.
Once the design commences, the District Utility and Constructability Engineer (DUCE) will
determine whether SUE Level B is required upon their initial review of the project. Preferably,
all required SUE Level B work will be performed at the pre-25% or 25% design stage. 
https://www.mass.gov/doc/subsurface-utility-engineering-sue/download

MALSCE Member Action: Send an email letter to US House members and US Senators on Retain Act: see end of this report

Still ongoing: Workforce Participation Goal Requirements: Issues related reporting for design professionals to Workforce Participation Goal Requirements under M.G.L. c. 149, § 44A(2)(G), which states that all contracts by a state agency or state-assisted contracts for design, construction, reconstruction, installation, demolition, maintenance, or repair must contain workforce participation goals for minorities and women.

• DCAMM has drafted some contact language on this issue, which ACEC/MA and AIA MA are seeking to clarify to try for consistency in reporting for all public agency contracts for design professionals, including municipal contracts.

PPP /FAR Credits issue and Federal Infrastructure Bills:

Summary: ACEC supports a simple fix to clarify that the FAR credits clause will not apply to PPP loans: Principal amounts of qualifying loans forgiven pursuant to the provisions of Section 1106 of the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. 116-136) shall not be considered income, a rebate, allowance, or other credit received by or accruing to a contractor under 48 CFR 31.201-5. The House of Representatives approved an amendment to the annual NDAA bill that would provide a narrowly targeted waiver of the FAR credits clause as it applies to forgiven PPP loans on State DOT and local transit agency contracts.

ACEC is working to have corrective language in a Senate appropriations bills expected to come to the floor in February. ACEC/MA shares this information with MALSCE as a courtesy.

IIJA: President Biden signed into law the $1.2T Infrastructure Investment and Jobs Act of 2021 (H.R. 3694 https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/06/fact-sheet-the-bipartisan-infrastructure-deal/

• Massachusetts Transportation Fact Sheet: https://www.transportation.gov/sites/dot.gov/files/2021-11/Bipartisan_Infrastructure_Law_Massachusetts.pdf
• 40% of the funding is directed to competitive grants programs for which MassDOT and other public agencies will have to compete. Expect some regulatory processes and grants processes over the next year or so

Federal Vaccination Mandate: Updated 1/25/2022:

The Supreme Court has ruled in favor of the ETS opponent’s request for an emergency injunction. The full ruling can be found here. In short, they have reinstated the 6^th Circuit’s stay, while they work towards a final decision. They have written clearly that the six Justices that have ruled on the emergency stay will rule similarly on the final decision.

As of 1/25/22: OSHA has officially withdrawn the Emergency Temporary Standard. See notice here. Note, OSHA has stated the following in their filing:

Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule under section 6(c)(3) of the Act, and this action does not affect the ETS’s status as a proposal under section 6(b) of the Act or otherwise affect the status of the notice-and-comment rulemaking commenced by the Vaccination and Testing ETS. See 29 U.S.C. 655(c)(3). Notwithstanding the withdrawal of the Vaccination and Testing ETS, OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace. 

Division of Occupational Licensure: Board of Registration of Professional Engineers and Professional Land Surveyors

Next Board of Registration meeting will be January 27, 2022, on Teams. The Board of Registration plans to continue virtual meetings for now, as the Governor and Legislature have extended the law allowing virtual public meetings like this to continue through April 1, 2022. To connect to the meeting, go to this page and scroll down to the meeting listing  to download the agenda with connection instructions.

The December 2021 Board meeting was cancelled. Board Executive Director Matthew Keigan resigned in December 2021 to take a position outside state government. The PE and PLS  Board does not currently have an Executive Director so Esther Laine, Deputy Commissioner of Boards, will be filling in until the position is filled.

November 18, 2021 Meeting summary: these are not minutes, but a summary of what I heard from several board members.

Vice Chairman Ronald Willey opened the meeting at 9:01AM. The Board reviewed the minutes of the October 28, 2021 Open Meeting.   

Vice Chairman Ronald Willey informed the Board that the next meeting is scheduled to take place on December 23, 2021.  Meetings will continue to be held on the fourth Thursday of each month in 2022 unless otherwise noted. Executive Director Matthew Keigan stated that there has been no update regarding in-person meetings.  He further stated that calendar invites will be sent to members for the 2022 meeting dates.

Board Counsel Sheila York provided the Board with a quick update on the transition of the paper and pencil State Specific Jurisprudence (JP) exam to a Computer Based Testing (CBT) format. She continues to work with Jenna Hentoff to bring her up to speed on the subcommittee’s discussions.She further stated that the focus right now is on the legal aspects of converting the JP exam to a CBT format and any impacts that may have on the Board’s contract with its vendor, Professional Credential Services, Inc.

Executive Director Matthew Keigan informed the Board that NCEES has provided guidance regarding CBT exams and indicated that the 16 hour Structural exam, the only remaining paper and pencil exam, may move to a regional offering in April 2022. This topic will remain on the Board’s agenda moving forward.

Vice Chairman Ronald Willey noted that the subcommittee working to clarify areas of “common” practice between the PLS and Civil PE met at 8am and will meet again at 8am on December 23, 2021 and then provide an update at the December Board meeting. (which was cancelled)

The Board took up discussion of a board member's question related to consistency within the Board during the application review and approval process.  There are differing opinions as to what meets Board requirements among the Board members when reviewing applications.  While the Board typically relies on information provided by applicants regarding work experience when determining eligibility for examination, having a set of guidelines when reviewing such information for all exam and non-MLE (non-Model Law Engineer) applicants to ensure a level of consistency would be a valuable tool. The Board agreed and Board member Dan Caron stated that he would provide a draft for Board consideration and discussion at the December meeting with the goal of creating a FAQ for posting on the website as well.

The Board was provided with a copy of the FAQ regarding PE Certification of Site Plans that was reviewed by Dan Caron who suggested edits for Board consideration. The PLS/PE subcommittee will discuss and if necessary, incorporate the topic at their meeting on December 23, 2021.

Sheila York stated that this would most likely be her final Legal Report as Jenna Hentoff will be assuming the lead on all Board legal matters. 

• No update on the email from James Hall, dated November 9, 2020, regarding the Swansea Board of Health’s proposal for “local licensure.”  Sheila York stated that the topic would remain on the agenda and an update would be provided as soon as one becomes available. 

• No new update on the status of draft language regarding Continuing Professional Competency (CPC).  Sheila stated that she would again check with General Counsel Clinton Dick regarding the status and an update would be provided as soon as one becomes available. 

• Dan Walsh at the Board of Building Regulations and Standards (BBRS) will be sent a copy of the draft language regarding draft language in “Professional Practice, A Guide to the Practice of Architecture, Engineering, and Land Surveying in Massachusetts” and asked for his feedback. 

Executive Director Matthew Keigan informed the Board that after review of the NCEES Enforcement Exchange, there were no new complaints opened against licensees for failure to notify Massachusetts of the discipline in another jurisdiction within the thirty (30) day window to report such discipline as outlined in the regulations.  He further stated that there were six (6) licensees who reported discipline to NCEES and are currently within the thirty (30) day window to report the discipline to Massachusetts. He advised the Board that the case tracking spreadsheet that was distributed to all members had been updated.   

Vice Chairman Ronald Willey presented the application review report provided by Eric Funk for Board consideration. Report was accepted 10-0.

Vice Chairman Ronald Willey presented an email from Jeff Fontaine, dated November 3, 2021, regarding PE requirements in the new DPU natural gas regulations.

Chairman Paul Tyrell reminded the Board that recognition of a PE discipline for licensure in MA takes into consideration the current exam disciplines offered by NCEES. He further stated that if applicant levels fall below a certain percentage for a specific amount of time, NCEES may determine not to offer that exam discipline any longer. At this time, NCEES no longer offers the Corrosion Engineering exam.

Eric Funk advised the Board that an engineer who is currently licensed in PE Corrosion in another U.S. state or jurisdiction/territory could apply for licensure in PE Corrosion in MA via comity.

Sheila York stated that the Board shall recognize all fundamental branches of engineering per M.G.L. Chapter 112, Section 81E which states the following: “The board, for the purposes of registration of professional engineers, shall recognize all the fundamental branches of engineering which shall include, without limiting the generality thereof by specific enumeration, the following fields:— aeronautical, chemical, civil, electrical, heating and ventilating, and air conditioning, industrial, mechanical, metallurgical, mining, safety, fire protection, sanitary and structural.”

The Board acknowledged that someone with a background in corrosion engineering could look at taking other NCEES exams to obtain licensure in MA based on their specific knowledge and experience, including Mechanical, Chemical, Electrical, Fire Protection, or Structural. Chairman Paul Tyrell indicated that he would work with Sheila York and Jenna Hentoff on the Board’s response to Mr. Fontaine.

Vice Chairman Ronald Willey presented an email from Stuart Walesh, dated November 10, 2021, regarding PE requirements in the new DPU natural gas regulations. Vice Chairman Ronald Willey stated that the email subject matter appeared to be outside the purview of the Board.

Dan Caron stated that the Board is already aware of the new DPU regulations and does not believe that any action is necessary. Sheila York acknowledged that no Board action was required and indicated that staff would mark the email as received and make note of such in the minutes.

MALSCE previously reported Background on Town of Swansea Issue (scroll down in November Report)

- The public meeting ended at 9:57 AM

Legislature and related

S. 2293, An Act supporting safe excavation practices  https://malegislature.gov/Bills/192/S2293 had a virtual hearing before the Joint Committee on Transportation on 1/25/2022.  Abbie Goodman testified on behalf of MALSCE and ACEC/MA.

MALSCE Letter of Support from MALSCE President J. Dan Bremser, PLS, submitted to Joint Committee on Transportation

H.3297,  An Act supporting safe excavation practices https://malegislature.gov/Bills/192/H3297   had a virtual hearing before the Joint Committee on Telecommunications, Utilities and Energy on 11/02/2021 from 1:00 - 5:00 PM. Ken Conte testified on behalf of MALSCE and ACEC/MA. Here is the written testimony submitted by MALSCE President Dan Bremser in support of this bill.  On 1/24/22, this bill reported favorably by committee and referred to the committee on House Steering, Policy and Scheduling

FY 2023 State Budget: Governor Charlie Baker is expected to release his FY2023 budget later this month. Next, the House will craft a proposal, followed by the Senate, and later a compromise version to be sent to the Governor, ideally before June 30, 2022. 
 

ARPA Spending in Massachusetts: The Legislature still has $2.3B of American Rescue Plan Act dollars to allocate. The Legislature sent Governor Baker a $4B spending plan late last year that used $2.55B of the state's share of ARPA dollars. .

Summary: The Legislature took final votes on 12/3/21 on a $4 billion American Rescue Plan Act spending package (H 4629) that grew beyond the governor's original  $2.8 billion proposal he filed in June. Baker had originally separated federal relief funding and surplus tax revenue spending into two bills that collectively added up to roughly $4.1 billion, according to the Massachusetts Taxpayers Foundation.

• Governor Baker signed most of the bill which is now: Chapter 102 of the Acts of 2021 https://malegislature.gov/Laws/SessionLaws/Acts/2021/Chapter102.
• He did veto some sections related to behavioral health.
• The Legislature also left about $2.25 billion in state ARPA money unallocated, to be considered at a later date. 
• The bill uses $2.55 billion in ARPA funds, $1.45 billion in fiscal 2021 surplus tax revenue, and leaves about $2.3 billion in federal funds remaining. Legislative leaders announced a compromise earlier this week that included about $180 million more in spending than either of the House and Senate's original proposals.
• The legislation allocates $500 million for up to $2,000 in premium bonus pay for essential workers, $500 million for the Unemployment Insurance Trust fund, $150 million for supportive housing, and $400 million for mental and behavioral health programs. Lawmakers also included $90 million for marine port infrastructure investments focused on offshore wind development.

- - - - - 
Retain Act:  MALSCE Member Action Needed

H.R.4634 - RETAIN GPS and Satellite Communications Act of 2021

Rep. Moulton, Seth [D-MA-6]  Signed on as a House Co-sponsor on November 1, 2021. If you are a constituent, please send him a note of thanks.  No other Massachusetts House members have signed on as of 1/18/22.

We need your help to contact 8 other US House Members who represent Massachusetts:  

RETAIN Act email letter to US House; MALSCE Member Action Requested (TECET Board help appreciated):

1. Find your US Representative: https://www.house.gov/representatives/find-your-representative
2. US Rep’s name will appear on left side of screen.
3. Click on highlighted name.
4. This brings you to their homepage.
5. Click on Contact – to send an email.
6. Use the basic text below, but personalize with your own story. Be sure to provide your contact info.
7. Please save a copy of what you are sending in word before you paste the text into their platform.
8. Enter your message into their platform and hit send.
9. Send a copy of your final letter to agoodman@engineers.org

Draft Letter to modify:

We still need letters to US Senators too, especially Senator Ed Markey and Senator Elizabeth Warren on this bill. I have talked with Eric Kashdan, Legislative Assistant, in the Office of Senator Edward J. Markey and invited him to meet with a group of MALSCE leaders in the next month or so by zoom on this bill.

S.2166 - RETAIN GPS and Satellite Communications Act of 2021

More: https://www.malsce.org/news-publications/news/nsps-advocacy-alert-co-sponsors-in-the-us-senate-and-house-for-retain-gps-and-satcom-act-3826