MALSCE Government Affairs Update - September 2021

by Abbie Goodman, MALSCE Chief of External Affairs

See MALSCE Covid-19 Resource Page for current news on Covid-19 Issues.

Still ongoing: Workforce Participation Goal Requirements:

I requested some legal guidance from Donovan Hatem to consider these questions related 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. Donovan Hatem is working on draft contract language and working with me on a letter and guidance document to discuss with office of Sec. of Administration and Finance

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

Update as of 9/24/21:

The US House passed the National Defense Authorization Act (NDAA), on 9/23/21, including ACEC’s PPP credits waiver.  We’ll be circling back with our Senate champions to strategize on retaining the amendment in a final bill. The NDAA enjoys strong bipartisan support overall, meaning this legislation has a very good shot at becoming law before the end of the year.

Update as of 9/14/21: we are hoping that the House will take a vote on the infrastructure package no later than 10/1/21. There is an attempt to make the PPP/FAR credits fix a technical correction, but the vehicle is more likely to be a Senate Appropriations bill this fall.

Separately, the US House is working on a Budget Reconciliation Package, another major piece of legislation that has a tough path forward. So for information only, I’m providing:

Summary of Key Provisions of Interest in Budget Reconciliation Package

September 13, 2021

House committees are drafting their pieces of the social spending and tax package that will be considered by Congress under the budget reconciliation process.  Below is a summary of key provisions of interest to the engineering industry as of Monday, September 13, 2021.  These may change prior to consideration by the full House at the end of September, and it is likely that the Senate will put forward its own provisions before a compromise between the two bodies can be reached later this fall. The package will largely reflect the remaining elements of the Biden Administration’s social agenda, including significant changes to the tax code that will impact engineering firms, but also significant provisions affecting the built environment and markets our members operate in.

Major elements impacting and expanding opportunities in the built environment include:

• $82 billion for school construction and repair;
• $15 billion for VA buildings;
• $30 billion for lead service line replacement;
• $10 billion for passenger rail;
• $10 billion for transit projects and transit assistance;
• $6 billion for project earmarks;
• infrastructure bonding mechanisms;
• a renewal of the production tax credits for renewable energy projects;
• and numerous green energy provisions.

The package will also include significant tax increases as pay-fors:

• A new 26.5% rate for corporations with revenues above $10 million;
• An increase in the individual rate from 37% to 39.6% for individuals with incomes over $400,000 and married filing jointly (MFJ) with incomes over $450,000;
• An increase in the capital gains rate from 20% to 25% taxpayers with incomes over $400,000;
• Limits the passthrough deduction to $400,000 for individual taxpayers and $500,000 on a joint return (note: this is the amount of the Section 199A deduction, not an income threshold).
• And numerous other tax changes.

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

The next Board of Registration meeting will be on October 28, 2021, 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.

Friday, September 24, 2021: these are not minutes, but a summary, but a summary of what I heard during the meeting:

• Covid Update/Return to Office: Licensing staff are back at 1000 Washington St. Other DPL staff are still mostly remote.  DPL is not ready for hybrid board meetings, so meetings will continue to be virtual or in person only for now.
• LP-JP subcommittee (making the PLS Jurisprudence exam a computer-based test) is still investigating the issue. To protect the integrity of the exam, this subcommittee is now holding meetings in executive session.
• The Bristol County Registry of Deeds sought a clarification from the Board regarding which professional can submit which types of plans for projects to the Registry. Board Counsel Sheila York shared a Joint Informational Bulletin from the Rhode Island Board of Registration of Professional Engineers and the Rhode Island Board of Registration for Professional Engineers (PE), that seeks to clarify which areas of “common” practice are properly conducted by the respective professions. (Joint Document)
  • The Massachusetts Board of Registration will tackle this issue and formed a subcommittee that includes: Ron Willey, Shannon, Ken Anderson, Joyce Hastings, PLS, Azu Etoniru, PE, PLS to work on a document to send to the Registries of Deeds.
• Board Counsel Sheila York shared that she will be transferring to the health boards at the Department of Public Health over the next few months. She introduced the new Board Legal Counsel: Jenna Hentoff; Sheila will work to brief Jenna on the issues before the board and the issues under review in the Division of Occupational Licensure.  Board members and the public thanked Sheila for her 16 years of diligent and impactful service to the board. Her expertise will be greatly missed!
• Board Counsel Sheila York reported no updates on continuing education requirements, is working on a new draft for the Joint Professional Practice document. For the Town of Swansea (and Seekonk) issue related to local licensing for a fee: Sheila is meeting with the DOL General Counsel as the Attorney General’s office has determined it does not have jurisdiction on local Board of Health regulations.
• ENG Board Executive Director Report:
  • NCEES Enforcement Exchange  - discussing chart of issues in other states
  • Case Status Report, Notification of Discipline
  • Starting in November 2021, registration for the CE exam will be for a CBT (Computer-Based Testing) version of the exam. In January 2022, the exam will start to be available in the CBT format.

• Meeting ended at 10 AM

Background on Town of Swansea Issue:

The Board of Registration of Professional Engineers and Land Surveyors is the state entity charged with establishing and enforcing licensing qualifications for the practice of engineering and surveying in the Commonwealth. The Board has been informed by a professional engineer that the town of Swansea is proposing bylaws that appear to require an engineer to obtain a local license prior to practicing within the town of Swansea.

The state’s licensing laws, G.L. c. 112, s. 81D through 81E, preempts municipalities from requiring individuals who hold licenses issued by the Board to obtain an additional license to practice in the municipality.

In 1941, the Legislature established the Board through promulgation of M.G.L. c. 13, s. 45. That law, as currently written, confers upon the Board the following exclusive powers and duties:

The board may: (i) establish the requirements for registration of professional engineers and professional land surveyors; (ii) establish standards of professional and ethical conduct for professional engineers and professional land surveyors; (iii) authorize and conduct appropriate examinations to determine the qualifications of applicants; (iv) grant certificates of registrations to qualified applicants; (v) establish standards for continuing education; and (vi) set and administer penalties as provided in sections 61 to 65E, inclusive, and section 81P of chapter 112 for fraudulent, deceptive or professionally-incompetent and unsafe practices and for violations of rules and regulations promulgated by the board.

M.G.L. c. 13, s. 45

The statewide licensing requirements to be enforced by the Board are set forth in further detail in M.G.L. c. 112, s. 81D to 81T.

Given the unambiguous language of M.G.L. c. 13, s. 45 and G.L. c. 112 81D to 81T, it is clear that the state Legislature intended to create a uniform system of licensure and regulation of professional engineers and land surveyors throughout the Commonwealth. Consequently, by the clear terms of these laws, the state has expressly preempted the field of licensure and regulation of engineers and land surveyors. Cities and towns are not authorized through their local boards of health or otherwise, to issue licenses to practice engineering or surveying and/ or regulate those professions.

Legislature

ARPA Spending Bill In Works For The Fall:

Joint Committee on Ways and Means held 6.5 hour virtual hearing in mid-September on infrastructure, tourism, arts & culture had heavy focus on needs to fix CSOs (combined sewer overflows) with help from ACEC/MA.

Background on the ARPA Spending Bill: Legislature hopes to agree on spending plan for ARPA funds before Thanksgiving

• House and Senate budget-writers have announced plans to hold several hearings this fall on spending some of the $4.8 billion available in state ARPA funds.
• As the Baker administration has repeatedly pushed for swift action on putting the ARPA money to work, lawmakers have rejected the governor's approach in favor of hearing from the full membership of the 200-seat Legislature and the public. Legislators have referenced using the funds for longer-term needs as well as immediate ones -- in June, Rep. Dan Hunt, the chair of the House Committee on Federal Stimulus and Census Oversight, said that Congress intended "a process to take place over four years."
• Governor Baker filed a bill in June to spend $2.9 billion of the ARPA money on what he identified as urgent priorities, including housing, infrastructure and workforce training. The governor and his Cabinet secretaries have continued to advocate for that plan.