MALSCE Government Affairs Update – November 2023

MALSCE Government Affairs Update – November 2023

Government Affairs activities and news for MALSCE members

by Abbie Goodman, MALSCE Chief of External Affairs

Davis-Bacon Update - Potential Impact on Land Surveying Crews

• The Davis-Bacon Updates took effect on 10/23/2023. Both ACEC National and NSPS held webinars on the section pertaining to land surveying crews in November with the same instructor.  
• On Nov. 7, ABC (Associated Builders and Contractors filed a lawsuit in the U.S. District Court for the Eastern District of Texas challenging the DOL’s final rule. NSPS is reportedly supporting the suit in some way, but is not mentioned in the press release:
  • ABC Press Release on lawsuit.

​MassDOT Issues New Plan Preparation Guidelines (October 2023):

New Guidelines from MassDOT Highway Division: Plan Preparation Guidelines for Consultants Preparing Right-of-Way Plans:  https://www.mass.gov/doc/plan-preparation-guidelines-for-consultants-preparing-right-of-way-plans-version-30/download

See Page 5 for updates: Here's one important example: S3 Surveyor – The PLS prequalified in the S3 category that is participating in the development of the ROW plans must be the same PLS that will prepare the layout plan and instrument. See page 6 in the guide.

• New requirements to ID zoning for each parcel and add offsets to buildings.
• MassDOT expects survey departments to do the zoning research to see what the zoning is for the parcel in the municipality.

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

• New Edition of Professional Practice Guide now posted here:   https://www.mass.gov/doc/professional-practice-a-guide-to-the-practice-of-architecture-engineering-and-land-surveying-in-massachusetts/download
  • ​This Guide has been revised after many years to assist licensees and consumers in understanding the professional responsibilities of architects, professional engineers, and professional land surveyors, and to direct people to sources of information that can help answer questions arising in day-to-day practice of these professions. It is an important resources for design professional, state and municipal officials, and the public. This guide reflects regulations that are current as of October 2023. More Information

• The next Board of Registration public meeting will be on December 21, 2023. The Board of Registration is planning to hold this meeting in person, with Teams available for  Board members, Division of Occupational Licensure, and the public.  For meeting details, go to this page two business days before the meeting and scroll down to the meeting listing to download the agenda with either location or connection instructions.
  • September 28, 2023 – draft final minutes are not yet posted though they were approved at the  October 26 Board meeting. This is an unofficial copy: https://files.engineers.org/file/DRAFT-EN-Board-Meeting-Minutes-9-28-2023-FINAL-Copy.pdf
  • October 26, 2023 - draft final minutes are not yet posted though they were approved at the November 16 Board meeting. This is an unofficial copy: https://files.engineers.org/file/DRAFT-EN-Board-Meeting-Minutes-10-26-2023-FINAL.pdf

Highlights of the 11/16/2023 Board of Registration Meeting

This is a summary of major issues discussed at the meeting, based on observing the meeting on Teams:

• The Division of Occupational Licensure records its boards’ meetings.
• This meeting was held on Teams only. The December meeting will also be on Teams. The Board plans to return to hybrid meetings in 2024, if at least one-quarter of the board is able to attend in person.
• Chair Paul Tyrell  called the meeting to order at 9:00 am. 
• The board approved the October 26, 2023 Public Session Meeting Minutes: see above for draft.
• No Change: JP Exam Conversion to CBT: This is still under discussion with the vendor.
• Board Counsel Legal Report from Patricia LaFore:
  • No Change Draft Continuing Professional Competency Regulations are still in the Executive Office of Administration and Finance and then would move on to the Secretary of State's office for review.
• Executive Director Kathleen McNally informed the Board that the revised and updated complaint tracking spreadsheet was still undergoing review and updating with the hope that a current version would be available before the end of the year. She also informed the Board that a comprehensive review of the NCEES Enforcement Exchange was underway to ensure that all disciplinary actions and dispositions taken by the Board have
  been reported and uploaded to the individual’s NCEES Enforcement record.

The Board did not discuss several emails they received in October as responses are still being drafted for these:

1. An email request from an author for Structure Magazine regarding signing and sealing rules.
2. An email request regarding Legal requirements for performing Data Prep Services to obtain information about the legalities of a non-licensed professional taking Civil Engineering Design plans and turning them into Data models, which are to be used by civil contractors for layout and machine control purposes. Essentially, he wants to inform the student of the course that state law considers data preparation an act of Land Surveying and, therefore, must be performed under a Professional Land Surveyor or Civil Engineer's guidance.
3. An email request asking several questions: 
   1. What is the definition of "offer to practice engineering" if a firm is located outside of the Commonwealth working on an engineering study but is doing engineering for a company inside the Commonwealth. Are they offering services inside the Commonwealth because the client is a Massachusetts company or are they practicing engineering in their home state? The regulations, in my opinion, are unclear. My company would like to comply and make sure to hire a licensed firm if required, but it is unclear based on the laws whether it is legal for a firm outside MA to do engineering for a MA firm if there is no physical structure being built in Massachusetts.
   2. The second question that has come up several times at different firms that I have worked at is whether a licensed engineer is required if there are no signed and sealed documents. I believe the law as quoted below is clear, but because the language is different and does not include mention of sealed documents, some companies believe that a licensed engineer is not required. I have been told this by more than one engineering firm in the past even though I know it is not true. If the Board clarified this on the Commonwealth web site, it would greatly help with compliance.
   3. Lastly, I hear from some firms that because they are only doing an "engineering study" there is no requirement for a licensed engineer. Again, I think the definition of an Instrument of Service appears to cover engineering studies and that a licensed firm is required, but I have had engineering firms claim this is not the case. It would be good if the board would clearly state in a FAQ that engineering studies are, in fact, an Instrument of Service and thereby require a licensed professional engineer. As a staff engineer, I have been overruled with respect to hiring licensed engineers because management can't interpret the law as written in cases like these. As a Professional Engineer, I am required to report cases of unlicensed practice, but it is hard to comply when the law is not clear and when I ask for an interpretation of the law from the Board, I do not get an answer. I do not want to accuse a firm of unlicensed practice if they are in compliance, but at the same time the State of Massachusetts can penalize me if I do not report them. It would be very helpful if the Board would issue clarifications or FAQs to clarify the above issues.

Based on the discussion, board and staff will draft responses to the message that may be reviewed at the November meeting.

The meeting adjourned at app. 10:30 am.