WSR 11-16-084

PROPOSED RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[ Filed August 2, 2011, 8:35 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 10-12-088.

Title of Rule and Other Identifying Information: Chapter 296-05 WAC, Apprenticeship rules.

Hearing Location(s): Department of Labor and Industries, Tukwila Service Location, 12806 Gateway Drive, Tukwila, WA 98168, on September 13, 2011, at 9:00 a.m.; and at the Department of Labor and Industries, Spokane Service Location, 901 North Monroe Street, Suite 100, Spokane, WA 99201, on September 15, 2011, at 9:00 a.m.

Date of Intended Adoption: November 1, 2011.

Submit Written Comments to: Sally Elliott, P.O. Box 44400, Olympia, WA 98504-4400, e-mail yous235@lni.wa.gov, fax (360) 902-5292, by September 15, 2011.

Assistance for Persons with Disabilities: Contact Sally Elliott by August 31, 2011, at yous235@lni.wa.gov or (360) 902-6411.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: ESSB 5873, which passed the 2009 legislature, requires the apprenticeship program to adopt rules regarding penalties for contractors found to be working apprentices out of ratio, with inappropriate supervision, or outside their work process scope of the approved apprenticeship program standards. Contractors who are found out of compliance in any of these areas by the Washington state apprenticeship and training council may have their responsible bidder status revoked for the first violation and be barred from bidding on any public works contract for five years upon the second violation. Rules are necessary to implement the legislation and provide due process protections for all parties.

This rule making meets the exemption in Executive Order 10-06 that allows rules that are required by federal or state law or required to maintain federally delegated or authorized programs.

Reasons Supporting Proposal: Not applicable.

Statutory Authority for Adoption: Chapter 49.04 RCW, RCW 19.285.040, and chapter 197, Laws of 2009 (ESSB 5873).

Statute Being Implemented: Chapter 49.04 RCW, RCW 19.285.040, and chapter 197, Laws of 2009 (ESSB 5873).

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

Name of Proponent: Department of labor and industries, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Jose Rodriquez, Olympia, Washington, (360) 902-6348.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The department did not prepare a small business economic impact statement since the rules do not impose new costs to the affected small businesses.

A cost-benefit analysis is not required under RCW 34.05.328. The department did not prepare a cost-benefit analysis since the rules do not impose new costs to the affected businesses.

August 2, 2011

Judy Schurke

Director

OTS-4143.2


NEW SECTION
WAC 296-05-015   Decisions against training agent for violating ratio, supervision and/or approved work process requirements.   Based on a complaint, compliance review, or other reason, the supervisor may investigate, in accordance with the rules in this chapter, whether a training agent is in compliance with the program standards relating to the ratio, supervision, or approved work processes requirements for purposes of responsible bidder status for public works under RCW 39.04.350 (1)(e), or for purposes of prohibitions on bidding on public works contracts under RCW 39.12.055(3).

(1) The supervisor shall notify the training agent and the program sponsor that an investigation has commenced.

(2) The supervisor shall prepare a report identifying the results of the investigation. If the results indicate that the training agent is not operating as required by the program standards, the supervisor will notify the training agent and program sponsor in writing of the results, with a copy of the report to the WSATC. Additionally:

(a) The supervisor will make a reasonable effort to secure compliance on the part of the training agent by requiring the training agent to submit to the supervisor a proposed corrective action plan identifying remedial steps to be taken within thirty, sixty, and ninety days of implementation of the corrective action plan. The supervisor shall review the proposed corrective action plan and approve it, or work with the training agent to modify it, before its implementation. The program sponsor shall assist the training agent in developing a proposed corrective action plan and shall assist the supervisor in monitoring the training agent's compliance with the terms of the approved corrective action plan.

(b) If the training agent fails to comply with the approved corrective action plan as described in (a) of this subsection or is found by the supervisor to have not operated as required by the program standards as a result of an additional inspection within one year of the initial inspection, the supervisor shall impose a corrective action plan identifying steps of the supervisor's choosing that must be taken by the training agent within thirty, sixty, and ninety days. The program sponsor shall assist the supervisor in monitoring the training agent's compliance with the terms of the corrective action plan imposed by the supervisor.

(c) If the supervisor is unable to obtain compliance from the training agent under (a) and (b) of this subsection, or if a third investigation within two years of the initial inspection reveals the training agent is not operating as required by the program standards, the supervisor shall refer the matter to the WSATC for action.

(3) The WSATC will take action upon the supervisor's referral under subsection (2)(c) of this section at its next regularly scheduled quarterly meeting. After a hearing, the WSATC will decide by a majority vote of the members present whether to issue a determination under RCW 39.04.350 (1)(e) and 39.12.055(3) that the training agent is out of compliance with program standards relating to the ratio, supervision, or approved work processes requirements.

(4) A determination by the WSATC that a training agent is out of compliance with program standards relating to the ratio, supervision, or approved work processes requirements shall be stated in writing, along with the reasons supporting it, and shall be served upon the training agent, program sponsor, and supervisor as provided by RCW 34.05.010(19). Judicial review of the WSATC's written decision under this section shall be as provided in chapter 34.05 RCW.

(5) The supervisor shall place WSATC determinations under this section on file for public review. The supervisor shall maintain a list of all training agents who, as a result of a determination they are out of compliance pursuant to RCW 39.04.350 (1)(e) and 39.12.055(3), are ineligible to bid on a public works contract, or to have a bid accepted. The supervisor shall make the list available to the public upon request.

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Washington State Code Reviser's Office