WSR 11-13-115

PROPOSED RULES

BOARD OF

PILOTAGE COMMISSIONERS

[ Filed June 21, 2011, 12:34 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 11-08-057.

Title of Rule and Other Identifying Information: WAC 363-116-086 Challenge to board action and appeal procedures.

Hearing Location(s): 2901 Third Avenue, 1st Floor, Agate Conference Room, Seattle, WA 98121, on July 28, 2011, at 9:30 a.m.

Date of Intended Adoption: July 28, 2011.

Submit Written Comments to: Captain Harry Dudley, Chairman, 2901 Third Avenue, Suite 500, Seattle, WA 98121, e-mail larsonp@wsdot.wa.gov, fax (206) 515-3906, by July 21, 2011.

Assistance for Persons with Disabilities: Contact Shawna Erickson by July 25, 2011, (206) 515-3647.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This proposed new rule is intended to enact procedures for challenging board determinations made pursuant to WAC 363-116-080 as to whether a trainee should be issued a pilot license. Currently, there is no such framework enacted to specifically address challenges to decisions made pursuant to WAC 363-116-080. Conversely, there are procedures for challenging determinations as to whether pilot applicants successfully passed the written tests and simulator tests, which are found in WAC 363-116-083 and 363-116-084.

Reasons Supporting Proposal: This new WAC, if adopted, would set forth the procedures for challenging the board's determinations made pursuant to WAC 363-116-080, which would include express notice requirements, procedures for any adjudicative proceeding and prehearing discovery, and the scope of any hearing and related procedures.

Statutory Authority for Adoption: Chapter 88.16 RCW.

Statute Being Implemented: Chapter 88.16 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The board's legal counsel recommends the proposed language for board adoption.

Name of Proponent: Board of pilotage commissioners, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Board of Pilotage Commissioners, 2901 Third Avenue, Seattle, WA 98121, (206) 515-3904.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The application of the proposed rule is clear in the description of the proposal and its anticipated effects as well as the proposed language shown below.

A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.328 does not apply to the adoption of these rules. The Washington state board of pilotage commissioners is not a listed agency in RCW 34.05.328 (5)(a)(i).

June 21, 2011

Peggy Larson

Administrator

OTS-4072.1


NEW SECTION
WAC 363-116-086   Challenge to board action and appeal procedures.   This section shall apply to all proceedings involving a board determination made pursuant to WAC 363-116-080:

(1) Pilot trainees who enter the training program as provided in this chapter shall provide the board with an address to be used for notification purposes. Such address shall be a place at which mail is delivered. In addition, a pilot trainee may provide the board with other means of contact such as telephone numbers and/or e-mail addresses. It will be the responsibility of the pilot trainee to ensure that the board has a current mailing address at all times. The mailing address will be considered the primary means of notice by the board. Notice delivered to the address provided by the pilot trainee will be considered received by the pilot applicant for the purpose of receipt of notification of the board's decision to deny a pilot license or extend a training program as provided in subsection (2) of this section.

(2) A pilot trainee who is:

(a) Denied a license; or

(b) Continued in the training program, pursuant to a decision rendered under WAC 363-116-080(5), shall be notified of the board's determination, in writing, by the chair of the board as soon as practicable. The trainee shall have twenty days from which notice of the decision is served to file a notice of appeal of the board's decision with the board, pursuant to WAC 10-08-110 and 10-08-211. The board's decision will become a final order upon expiration of twenty days from the date notice is served, unless notice of appeal has been filed prior to that time. Upon the filing of the notice of appeal, the chair of the board shall appoint a presiding officer, who shall conduct the hearing and issue an initial order pursuant to chapter 34.05 RCW.

(3) Any hearing conducted pursuant to a request for review as indicated in subsection (2) of this section shall be conducted pursuant to the rules set forth in chapters 10-08 and 363-11 WAC and this section. In the event of a conflict, this section shall control.

(a) The board and TEC shall be required to produce no more than a total of two fact witnesses and no more than one expert witness in connection with any hearing pursuant to this section, unless the board's chair, in his or her sole discretion, believes additional witnesses are necessary to present its case. This limitation shall apply to the hearing and any prehearing discovery.

(b) The board has determined, in its discretion, that because:

(i) Each trainee brings different skill sets to his or her training program as a result of their prior experience; and

(ii) The TEC develops an individually tailored training program based upon that trainee's skill set and prior experience.

Comparisons between trainees' performances in their respective training program are not relevant when assessing the trainee's performance which is the subject of a notice of appeal and/or petition for review hereunder. Any documentation or testimony concerning the performance of other trainees in their training program shall not be considered during any proceeding involved in the review process and shall not be submitted or solicited as evidence in any hearing under this section, nor shall it be submitted or solicited as evidence in any discovery deposition, nor shall it be included in the board's record of proceedings or any petition for review.

(c) The scope of the hearing shall be limited to the validity of the training and evaluation process. The grounds for appeal shall be limited to the following issues:

(i) Does the training and evaluation process comport with accepted psychometric and industrial/organizational psychology principles and evaluation?

(ii) Is the board's training and evaluation process a valid and reliable measurement system meeting all criteria of formative and summative assessment?

(iii) Is the training program job related?

(iv) Was the board's decision made pursuant to WAC 363-116-080(5) arbitrary and capricious?

(d) The presiding officer shall issue an initial order at the conclusion of the hearing in conformance with the requirements of chapter 34.05 RCW and WAC 10-08-210.

(4) Any petition for review of the initial order shall be filed in conformance with WAC 10-08-211. The chair of the board shall then appoint a "reviewing officer" who shall issue a final order. The standard of review by the reviewing officer shall be the same as that set forth in subsection (3)(c) of this section.

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Washington State Code Reviser's Office