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Practising Engineering in USA States 17

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stanier

Mechanical
May 20, 2001
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Has the requirement for bieng licensed in a state ever been challenged as being in restraint of free trade?

Does the free trade agreements with Canada, mexico, Australia allow for engineers considered professional in their homelands to work without registration in the state?

I am a consultant working out of Sydney Australia and undertake work all over the world except as yet in the USA. I am primarily engaged by consultants as a sub consultant. Is it possible for me to work on USA projects? It would be a nonsense if I did my work but some other engineer had to sign off on it because he had a license and I didnt. The only relelvance that engineer may have to my speciality is knowing my email address and phone number.

 
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I’m blushing. To be compared to those great men is truly an honour. [blush]

The thrust of your argument is that governments exist to protect their citizens. You will get no dissention from me on that issue.

However we are as you may know in the last days of a federal election here. When you read most of the ads of the various parties they all say that they are for the same fundamental issues that are shaping this election. Government accountability, defense, social programs, law and order etc. These are essentially the same as they are every election and pretty much the same in most elections that I have followed in other countries.

To simply list off these as important points does nothing to advance the debate. They are “apple pie” issues. What really counts is the recipe that is used to make the pie.

Where the parties differ is in the recipe that they will use to carry out their mandate.

Is it serving the citizens of a country to close their international markets to trade thus keeping the jobs at home or is it to open their markets to other countries thus allowing their citizens opportunities in the export markets and the advantages of lower prices for goods and services?

You can argue that either position is serving the needs of the citizens. Economists for the vast majority believe that the advantages of free trade outweigh the negative consequences of free trade and that the population is better served by having open markets.

The governments of Canada, Mexico and the US agreed to this by implementing NAFTA. George Bush, with whom I disagree on almost every other issue, supports free trade.

Thus the powers that be support free trade as being to the advantage of their citizens.

The sub message is that international agreements must be subordinate to US domestic law. This issue is a red herring. International agreements, such as NAFTA, are laws agreed to and ratified by your Congress. They are the law of the USA as well as being agreements between two or more sovereign countries.

What we have here is a case where the laws passed implementing NAFTA is at odds with the laws of the individual states. I understand about state rights but am at a loss to understand how the side that lost the Civil War (which was about states rights) and had to give up their slaves, somehow still has so much power in US politics.

If the US has not got the power to force the individual states to grant mutual recognition to Canadian and Mexican licenses then why did they negotiate language supporting this into the agreement?

As for the counter argument that why did Canada agree to this clause when they knew or should have known that the US federal government lacked the authority to implement it I can offer two possible answers. They felt that it was a good agreement even without the mutual recognition or they were incompetent idiots. Take your pick.

Bottom line is that both Canada and Mexico were willing to grant mutual recognition to US PE’s provided that the US was willing to grant the same rights to Canadian and Mexican engineers. Out of all the states only Texas as far as I know actually issued PE’s on the basis of P.Eng’s and as of 1 Jan 06 they stopped this practice.

Rick Kitson MBA P.Eng

Construction Project Management
From conception to completion
 
stanier,

I am based in the USA. I too think that the state-by-state licensing system is anachronistic. Probably only the civil/structural folks should be state licensed due to site specific issues. The rest of the diciplines could easily be nationally or even internationally licensed (assuming that international licensing exists).

There are numerous ways of looking at this licensing issue.

At least half of the engineering workforce is employed in industry, where licensing is not an issue and therefore not a barrier to free trade. No problem here.

One could argue that engineering is performed all over the world by various persons, with few problems. So why couldn't someone overseas perform engineering for the USA?

Another arguement that could be made is that the modern legal system coupled with pressure by insurance companies has a greater "regulatory" effect than the state licensing system.

All things to think about.
 
Ashereng,

My statement above that you quoted was in reference to consulting engineering, not engineering of a manufactured product. This is the topic what I believe stanier is refering to.
 
RDK said:
Is it serving the citizens of a country to close their international markets to trade thus keeping the jobs at home or is it to open their markets to other countries thus allowing their citizens opportunities in the export markets and the advantages of lower prices for goods and services?

Nobody wants to close the markets. We want to ensure that nobody can subvert our established standards and practices, for the sake of "saving a buck." If anyone can meet the requirements, I see no reason to limit anyone.

RDK said:
You can argue that either position is serving the needs of the citizens. Economists for the vast majority believe that the advantages of free trade outweigh the negative consequences of free trade and that the population is better served by having open markets.

Free trade is good. But we are SUPPOSED to have a system of checks and balances in this country, that hasn't worked properly for about 200 years.

It's hard to argue the benefits of a properly implemented free trade agreement. But it's something that needs to be planned, and implemented gradually, over time. (so as not to interrupt the stable flow of any single economy, and allow time to adjust, without the "squabbles")

And, of course, no single branch has the power (theoretically) to run roughshod over state law, so long as it doesn't violate the Constitution. In case you don't follow American current events, we have a real problem in our country with judicial activism, and both legislative and executive branches overstepping their bounds. Need I say more about the subject in light of that?

RDK said:
George Bush, with whom I disagree on almost every other issue, supports free trade.

Unnecessary ideology, to be sure. But thanks for sharing.


RDK said:
The sub message is that international agreements must be subordinate to US domestic law. This issue is a red herring. International agreements, such as NAFTA, are laws agreed to and ratified by your Congress. They are the law of the USA as well as being agreements between two or more sovereign countries.

No, the underlying message is that signed agreements must not clash with existing US law, in ANY form, whether it be state or federal. The same should be true for the laws of any nation that is signatory. (or what good is sovereignty?)

In this particular case, NAFTA did not affect the way that states license and regulate engineering practice, and that's a good thing.

How can you say that the US should be held accountable to the treaties that it signs, and not also agree that the federal government must not interfere with the power that has been granted to the states since the inception of the country? That's a double standard.

RDK said:
What we have here is a case where the laws passed implementing NAFTA is at odds with the laws of the individual states. I understand about state rights but am at a loss to understand how the side that lost the Civil War (which was about states rights) and had to give up their slaves, somehow still has so much power in US politics.

I don't think there is a discrepancy. From what I've read, I still don't think the concept of PE is being properly understood.

Oh, and if you can't understand the idea that the states still hold the same power that they always did, it might help to understand the concept of a Democratic Republic. The US is not a democracy, as is so frequently attributed. The Civil War did nothing to diminish states rights. It was an argument over some particular issues, and what role the federal government had in enforcing them. That was much more of a Constitutional issue. (and it may be that the federal government overstepped its bounds in not allowing secession of the Southern states - not a discussion for this board, though)

RDK said:
If the US has not got the power to force the individual states to grant mutual recognition to Canadian and Mexican licenses then why did they negotiate language supporting this into the agreement?

Do you just want to work as an engineer in the US? Because if that's the case, you've got no issue, here. If you want to be a Licensed Professional Engineer, that's a different story. It's just not an apples to apples comparison, in this case.


RDK said:
As for the counter argument that why did Canada agree to this clause when they knew or should have known that the US federal government lacked the authority to implement it I can offer two possible answers. They felt that it was a good agreement even without the mutual recognition or they were incompetent idiots. Take your pick.

Option 3 - They knew that more Canadians and Mexicans would flock to the US, than the other way around, and didn't want to try to fight an uphill battle to change laws that work the same for everyone in the US.

Option 4 - Everyone knew that NAFTA was primarily drafted at the behest of certain US industries who wanted cheap labor, and they wanted it immediately. (in other words, an oversight, or deliberate malfunction for you)

RDK said:
Bottom line is that both Canada and Mexico were willing to grant mutual recognition to US PE’s provided that the US was willing to grant the same rights to Canadian and Mexican engineers. Out of all the states only Texas as far as I know actually issued PE’s on the basis of P.Eng’s and as of 1 Jan 06 they stopped this practice.

Here's a link. This document is from the Texas Attorney General's office, to the Texas Board of Professional Engineers. I think that this letter is especially pertinent in this conversation, because for once, we actually have the input from an actual attorney, and a relatively high ranking one, at that. Please pay attention to the part where the Attorney General's office states,


Nothing in NAFTA allows Canadian or Mexican professionals to practice a licensed profession in the United States without meeting state licensing criteria and receiving such licenses, nor requiress change in state certification or licensing procedures, other than elimination of citizenship or permanent residence requirements.






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MrMojito,

stanier said:
Has the requirement for bieng licensed in a state ever been challenged as being in restraint of free trade?

My apologies for misunderstanding. I quoted stanier's OP. He specifically inquired about licensing. NOT performing engineering for the USA.

With over 100 responses, I misunderstood your reference to consulting engineering, and not to engineering of a manufactured product, and not to licensing.

In that case, I believe the answer is yes, someone overseas CAN perform engineering for the USA. They can come to the US, and work, provided they qualify under the industrial examption, as per several posts above.

 
I’ll only address the one issue since this topic would branch out too much to address all issues.

No, the underlying message is that signed agreements must not clash with existing US law, in ANY form, whether it be state or federal. The same should be true for the laws of any nation that is signatory. (or what good is sovereignty?)

NAFTA is a law of the US. There was a law passed by your congress implementing the agreement.

No one rammed NAFTA down US throats. Your national government negotiated it and your national government passed it into US law.

This is, as I understand it, the same for all treaties, your Congress passes a law ratifying the treaty and then it becomes a US law as well as an international treaty.

Once the Congress ratified NAFTA it became US law. However it had a clause in it that stepped on the toes of state jurisdiction.

Therefore the US national government should never have entered into an agreement that they had no power or standing to enforce.

It would be like me selling your house. The sale would be fraudulent because I have no right to sell your house. The US national government had no standing to negotiate areas under US state jurisdiction.


And I just have to respond to one more issue.

The USA is a democracy. All democracy means is that the people elect the leaders. You do elect your leaders down there don’t you?

There are many forms of democracy, we have a Constitutional Monarchy and you have a Republic. However they are both democracies because we go to the polls periodically and elect our leaders.

To call the US system of government anything other than a democracy is sloppy thinking and ignores the definition of a democracy.



I should also point out that the NCEES Model Law DOES recognize my P.Eng as equal to a US PE and suggests that I should be allowed to transfer it without any problem.


130.10 C 1 a (1)

A person holding a certificate of licensure to engage in the practice of engineering issued by a proper authority of a jurisdiction ….. or foreign country, based on requirements that do not conflict with the provisions of the act and possessing credentials that are not lower…may be licensed without further examination ….

Does anyone actually know if there is mutual recognition in any state? Texas was at one time offering it but as I understand it they have reverted to Canadian engineers starting over as would any US national with no special recognition for P.Eng status.

Rick Kitson MBA P.Eng

Construction Project Management
From conception to completion
 
RDK said:
To call the US system of government anything other than a democracy is sloppy thinking and ignores the definition of a democracy.

Really? My wife just got her United States citizenship, and had she answered on her test that the US was a democracy, she would have gotten the question wrong.

This is not one of those subjects that's open to interpretation. Not the "spirit" or "intent" of democracy. The pure definition.

Rome was a democracy - not the US. The united States of America is a Republic.

RDK said:
Once the Congress ratified NAFTA it became US law. However it had a clause in it that stepped on the toes of state jurisdiction.

Therefore the US national government should never have entered into an agreement that they had no power or standing to enforce.

In this case, you're still wrong. I've seen multiple references to this issue from various state and federal attonreys, and none of them agree with you. Not everyone in America is a "protectionist", as you say. So either nobody knows what's going on, or you're smarter than the lawyers. I guess that's for you to decide.




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Wikipedia said:
There is another definition of democracy, particularly in constitutional theory and in historical usages and especially when considering the works of the American "Founding Fathers." According to this usage, the word 'democracy' refers solely to direct democracy, whilst a representative democracy where representatives of the people govern in accordance with a constitution is referred to as a 'republic.' This older terminology retains some popularity in U.S. conservative and Libertarian debate.

solid7, I was also told by a Texan colleague that the only republic in the USA is Texas. Something about it's terms and conditions when it joined the union that allows it special rights and privileges unique to it amoungst the current states. I don't know if this is true. But I digress, again.

Sorry.

 
While some may suggest that my use of terminology is incorrect, I'm not terribly interested in the contemporary definition, set forth by revisionists. In addition to that, Texans are a proud people, so you can be sure that the definition was embellished to suit the narrative. The wikipedia definition is correct, if you just take out the ideological lingo. (wikipedia isn't exactly the best source of info, as you probably know)

I don't mind your digression. It's relevant to the discussion, as there should be some basic understanding of the tenets of American law, if one is to participate in a conversation that hinges upon it.

Thanks for your input.




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A republic is simply one form of democracy.

Check out the definition given by the US State department.


The US meets this definition.

Once again a democracy is one where the people elect their leaders. A republican democracy is one that the US has but it is still a democracy. In a republican government the people are supreme, in say a constitutional democracy like Canada, the UK , Australia and New Zealand the supreme leader is the Crown who rules based on “advice” by the elected representatives. In practice the elected representatives exercise power in the name of the Crown.

Americans often incorrectly assume that direct democracy as the only form of democracy. In a direct democracy the people vote on each and every issue and the results are binding without any limits or the need for precedent. In a constitutional democracy the elected representatives are bound by a constitution which limits their powers.

Democracy means the people elect their leaders nothing more or less.

EddyC

I am Canadian and a P.Eng and so can call myself an engineer. I was not aware that any states limited the right to title to PE’s only.








Rick Kitson MBA P.Eng

Construction Project Management
From conception to completion
 
I read most of these posts so the emotions were swinging back and forth rather quickly. Maybe someone has already responded to Mr Kitson's acknowledgement that some PEngs are PEngs for "social" reasons. I don't mind letting those PEngs drive in the US on the Canadian driver's license, but I would be disappointed to see them obtaining a PE... unless it was for "social" reasons only.

Steve Braune
Tank Industry Consultants
 
RDK,

Please please please please please pull direct quotes from NAFTA, in context, that shows that the US MUST do something and hasn't followed through. If you do, I will shut up and go away.

Again, here is the link to the section of NAFTA that deals with trade in professional services, including engineering:


For those who have stumbled upon this amusingly long thread without reading it in its entirety:

I have refuted, by quoting NAFTA, RDK's assertions that the US is in violation of NAFTA, as it regards engineering licensure. RDK seems to believe that:

(1) NAFTA requires that the signatories recognize each other's licenses

(2) NAFTA does not allow the signatories to have different licensing standards

(3) NAFTA reqquires that signatories embark on a _successful_ effort to provide foreign engineers temporary licenses in their territory.

Before getting into what NAFTA says, notice that these points are illogical when taken as a whole. If one is true, there is not need for two or three. If so, we have some very dumb people writing our trade agreements.

If you read chapter 12, you will find that it encourages the signatories to have uniform licensing standards and to recognize each others licenses. It does not require this. Here it is, in Article 1210, Licensing and Certification:

1. With a view to ensuring that any measure adopted or maintained by a Party relating to the licensing or certification of nationals of another Party does not constitute an unnecessary barrier to trade, each Party shall endeavor to ensure that any such measure:

If it was a violation of NAFTA to require foreign engineers to get the same licenses as domestic engineers, this section would not be necessary. Ergo, it is not a violation of NAFTA.

The text continues with the list of protections that NAFTA does provide:

(a) is based on objective and transparent criteria, such as competence and the ability to provide a service;

(b) is not more burdensome than necessary to ensure the quality of a service; and

(c) does not constitute a disguised restriction on the cross-border provision of a service.


According to RDK, Mexico and Canada allow each other's engineers, as well as US engineers, to practice in their countries on the basis of the engineer's home license. Under NAFTA, must the US allow the same? Based on the preceding section, we already know the answer is no. But let's see what other clues NAFTA provides:

2. Where a Party recognizes, unilaterally or by agreement, education, experience, licenses or
certifications obtained in the territory of another Party or of a non-Party:


"Where" is legalese, more or less, for "If". So the US need not recognize, unilaterally or by agreement, any or all of the listed items obtained in Canada or Mexico. Based on other agreements, the US does recognize all but licenses, but NAFTA doesn't require that any party does so.

(a) nothing in Article 1203 shall be construed to require the Party to accord such recognition to education, experience, licenses or certifications obtained in the territory of another Party; and

NAFTA reiterates that a country is under no obligation to recognize these.

(b) the Party shall afford another Party an adequate opportunity to demonstrate that education, experience, licenses or certifications obtained in that other Party's territory should also be recognized or to conclude an agreement or arrangement of comparable effect.

NAFTA only requires that Canada and Mexico be allowed to make the case that these things are comparable. As previously noted, the US recognizes all but licenses.

The next section lists the real, concrete protections that NAFTA does provide. RDK and Stanier seem to think they're insignificant.

3. Each Party shall, within two years of the date of entry into force of this Agreement, eliminate any citizenship or permanent residency requirement set out in its Schedule to Annex I that it maintains for the licensing or certification of professional service providers of another Party. Where a Party does not comply with this obligation with respect to a particular sector, any other Party may, in the same sector and for such period as the non-complying Party maintains its requirement, solely have
recourse to maintaining an equivalent requirement set out in its Schedule to Annex I or reinstating:

(a) any such requirement at the federal level that it eliminated pursuant to this Article; or

(b) on notification to the non-complying Party, any such requirement at the state or provincial level existing on the date of entry into force of this Agreement.


So there can be no residency or citizenship requirement.

4. The Parties shall consult periodically with a view to determining the feasibility of removing any remaining citizenship or permanent residency requirement for the licensing or certification of each other's service providers.

5. Annex 1210.5 applies to measures adopted or maintained by a Party relating to the licensing or certification of professional service providers.


Can it be any more blazingly obvious that the US is not in violation of these provisions?

There is no emotion in what I posted above.

Rob Campbell, PE
Finite Monkeys -
 
SteveBraune

When I say that some people are P.Eng for ‘social’ reasons I am referring to those who do not require a license to do their job.

For example all federal government employee engineers who are registered are registered for social reasons.

In Canada the federal government can supersede the provinces and is not bound by any provincial law. Thus the provincial engineering acts do not apply to engineers working for the federal government and there is no requirement for them to be registered to do their work.

However registration is almost universal among them. Why? For what I am lumping into “social” reasons. They want the recognition of the .PEng they want to participate in the associations activities, they want to have the credential for future job prospects etc.

It takes nothing away from their professional status or capabilities, just that there is no legal reason for them to be registered and they have done so voluntarily.

Another group would be engineers working as project managers for a construction company. They would not be practicing engineering and would be doing the same work as someone up from the trades or a CET. However people eligible for P.Eng status almost always obtain and maintain that status even when their current job does not require them to do so.

I am sure that there are many PE’s who do not require the PE status but obtain it and maintain it for many similar reasons.

Rick Kitson MBA P.Eng

Construction Project Management
From conception to completion
 
I have never said that requiring an engineering license violates either the spirit or letter of NAFTA.


What I have argued is that the spirit of NAFTA is to remove all barriers to trade and that one of these is that mutual recognition of thee licenses issued by another country as being the equal to the license issued by the US states is part of the spirit of NAFTA.

Read this carefully. Requiring a PE license by foreign nationals is not a violation of NAFTA. What is a violation of the spirit of NAFTA is that the foreign nationals with a substantially equal credential are treated as new entrants to the profession.

What I would like to see and have never said is required by any agreement is that my Manitoba license be recognized as all that I need to practice professional engineering in all jurisdictions of Canada, the USA and Mexico.

My driver’s license is recognizes as being all that is required to drive in all these jurisdictions but not my engineering license to practice engineering.

These other jurisdictions do not have any input or control over the standard that I met to obtain my driver license but somehow this is critical for my engineering license.

These jurisdictions have different laws regarding driving that I am supposed to know and follow but it is somehow impossible for me to know the different laws regarding engineering unless the jurisdiction issues me a license.

These jurisdictions have different environmental conditions affecting driving that I am responsible for compensating for but somehow it is impossible for me to compensate for different conditions in engineering activity unless the jurisdiction issues me a license.

If I break the traffic laws in another jurisdiction I am fined and disciplined by that jurisdiction and the record of that penalty goes on my Manitoba driving record and follows me home. Somehow that is a major issue in engineering that the other jurisdiction feels that it can only discipline me if it gives me a license there.

Actually if I have to be treated as a new entrant to the profession to get a license in a US state all I have to do is fail to mention that I have a P.Eng and I could simply walk away from discipline in a US state and most likely be untouchable. By practicing on the strength of my Manitoba license I could be tracked home and disciplined where I live and work. I feel that that would strengthen the discipline process for engineers working outside their home jurisdiction.

If I had several licenses which were not linked to each other I could easily throw one away.

Many more people are killed by bad driving than by bad engineering.


The spirit of the NAFTA agreement is that we remove all barriers to trade. A system that requires over a year to obtain a license to practice engineering is a barrier to my selling my professional services in the US. (two exams required and they are only scheduled April and October with several months required to obtain marks)

I see no justification in these barriers other than protectionism of markets which is what NAFTA is supposed to eliminate.

Unfortunately the vast majority of the people supporting the protectionist stance fail to see that they are being harmed by their inability to work in other jurisdictions.

Rick Kitson MBA P.Eng

Construction Project Management
From conception to completion
 
RDK said:
Many more people are killed by bad driving than by bad engineering.

That's because:

A) There are many more drivers than engineers
B) Engineers are not the last link in the chain (whereas drivers are)
C) It's far too easy to get a driver's license

Care to continue on with this logic?

Let's also not forget - engineering defects can, and often do, cause more casualties in one fell swoop than automobile accidents. Engineering also carries the stigma of product liability, (as well as criminal liability, in some cases) which is not the case in automobile accidents caused by bad drivers. There are a whole myriad of legal issues associated with engineering, that are not involved in getting a driver's license.

In short, your drivers license analogy keeps coming up short on a number of fronts. You really should drop that one.


RDK said:
The spirit of the NAFTA agreement is that we remove all barriers to trade

When you can't settle a matter on fact alone, the classic tactic is to invoke intent.

As long as nobody is breaking the letter, it doesn't make 2 ounces of difference what the "spirit" is. Law is set in stone, and not based on the warm feelings that one might get when thinking of how much good they're advancing in the world. If the latter were true, and not the former, there would be no need to state it in writing, with signatures.

Besides that, it's all legalese, and there's no point in talking intent once a lawyer gets it. There's what you want, and then, there's what you get.




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RDK,

You have accused the US government of fraud:

Therefore the US national government should never have entered into an agreement that they had no power or standing to enforce.

It would be like me selling your house. The sale would be fraudulent because I have no right to sell your house. The US national government had no standing to negotiate areas under US state jurisdiction.


Violating the spirit of an agreement, which I do not even believe the US has done, is not fraud.

You have a distinct modus operandi. You argue that the US has violated specific provisions. When I point out that they have not, you switch to arguing that the US has violated the spirit of the agreement. A few posts later, you revert to your earlier arguments.

Actually if I have to be treated as a new entrant to the profession to get a license in a US state

You are not treated as a new entrant. Your education, your experience, and your references are recognized by the local authorities for the purpose of becoming licensed. You need only fill out the application and take the test. You are in the same boat as a domestic engineer who hasn't taken either test, which is not unusual in the US.

The spirit of the NAFTA agreement is that we remove all barriers to trade. A system that requires over a year to obtain a license to practice engineering is a barrier to my selling my professional services in the US. (two exams required and they are only scheduled April and October with several months required to obtain marks)

I see no justification in these barriers other than protectionism of markets which is what NAFTA is supposed to eliminate.


NAFTA is supposed to do what NAFTA says. What you think about the spirit of the agreement is irrelevant. Again, as shown in my previous post, these requirements are legitimate. They apply equally to domestic and foreign engineers, are based on objective and transparent criteria (taking tests in one's area of expertise), and do not have citizenship or residency requirements.

Perhaps you think they are "more burdensome than necessary to ensure the quality of a service" or "constitute a disguised restriction on the cross-border provision of a service." That's a very narrow argument and tough to argue, considering US engineers are subject to the same restrictions.

We're talking about business. Business requires planning and, yes, even some expense. If you had wanted to, I'm sure you could have been licensed in all the states you please by now.

Rob Campbell, PE
Finite Monkeys -
 
I wrote:

Perhaps you think they are "more burdensome than necessary to ensure the quality of a service" or "constitute a disguised restriction on the cross-border provision of a service." That's a very narrow argument and tough to argue, considering US engineers are subject to the same restrictions.

And always have been.

Rob Campbell, PE
Finite Monkeys -
 
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