WSR 18-10-001

PERMANENT RULES

UTILITIES AND TRANSPORTATION

COMMISSION

[Docket TR-170780, General Order R-591—Filed April 18, 2018, 12:41 p.m., effective May 19, 2018]

In the matter of amending and adopting rules in chapter 480-62 WAC relating to contract railroad crew transportation.

1 STATUTORY OR OTHER AUTHORITY: The Washington utilities and transportation commission (commission) takes this action under Notice No. WSR 18-06-010, filed with the code reviser on February 23, 2018. The commission brings this proceeding pursuant to RCW 80.01.040, 81.04.160, and 81.61.050.

2 STATEMENT OF COMPLIANCE: This proceeding complies with the Administrative Procedure Act (chapter 34.05 RCW), the State Register Act (chapter 34.08 RCW), the State Environmental Policy Act of 1971 (chapter 43.21C RCW), and the Regulatory Fairness Act (chapter 19.85 RCW).

3 DATE OF ADOPTION: The commission adopts this rule on the date this order is entered.

4 CONCISE STATEMENT OF PURPOSE AND EFFECT OF THE RULE: RCW 34.05.325(6) requires the commission to prepare and publish a concise explanatory statement about an adopted rule. The statement must identify the commission's reasons for adopting the rule, describe the differences between the version of the proposed rules published in the register and the rules adopted (other than editing changes), summarize the comments received regarding the proposed rule changes, and state the commission's responses to the comments reflecting the commission's consideration of them.

5 To avoid unnecessary duplication in the record of this docket, the commission designates the discussion in this order, including appendices, as its concise explanatory statement, supplemented where not inconsistent by the staff memoranda preceding the filing of the CR-102 proposal and the adoption hearing. Together, these documents provide a complete but concise explanation of the agency's actions and its reasons for taking those actions.

6 REFERENCE TO AFFECTED RULES: This order adopts or amends WAC 480-62-125 Definitions, 480-62-240 Passenger carrying vehicles—Equipment, 480-62-245 Passenger carrying vehicles—Operation and 480-62-999 Adoption by reference; and adopting WAC 480-62-275 Contract crew transportation registration and permit requirements, 480-62-278 Contract crew transportation vehicle and driver safety requirements, 480-62-281 Contract crew transportation intrastate medical waivers, 480-62-284 Contract crew transportation insurance requirements, 480-62-287 Contract crew transportation passenger notice requirements, 480-62-290 Contract crew transportation safety training, 480-62-293 Contract crew transportation enforcement, 480-62-296 Contract crew transportation reporting requirements, and 480-62-299 Contract crew transportation record retention requirements.

7 PREPROPOSAL STATEMENT OF INQUIRY AND ACTIONS THEREUNDER: In the 2017 session, the legislature passed ESHB 1105, which amends chapter 81.61 RCW to include commission regulation of contract railroad crew transportation. The bill required the commission to adopt rules under chapter 34.05 RCW as necessary to regulate persons providing contract railroad crew transportation and every contract crew transportation vehicle.

8 The commission filed a preproposal statement of inquiry (CR-101) on July 20, 2017, at WSR 17-16-007. The statement advised interested persons that the commission filed with the code reviser a preproposal statement of inquiry to implement ESHB 1105. The commission also informed persons of this inquiry by providing notice of the subject and the CR-101 to everyone on the commission's list of persons requesting such information pursuant to RCW 34.05.320(3), and by sending notice to all transportation companies holding certificates and the commission's list of transportation attorneys. Pursuant to the notice, the commission received comments on August 28, 2017, and held a stakeholder workshop on October 5, 2017.

9 SMALL BUSINESS ECONOMIC IMPACT ANALYSIS: Chapter 19.85 RCW requires that an agency prepare a small business economic impact statement (SBEIS) if the agency's proposed rules will impose more than minor costs on businesses in an industry. On November 20, 2017, the commission mailed a notice to all stakeholders interested in the commission's rule making, providing both a copy of the draft rules and an opportunity to respond to an SBEIS questionnaire. The notice requested that regulated companies provide information about possible cost impacts of the draft rules with specific information for each rule that the company identified as causing an impact. No stakeholder responded to the survey or identified any cost impacts.

10 In addition, commission staff's analysis shows that the draft rules will impose no costs beyond those already imposed by statute. Because the proposed rules will not impose more than minor costs on passenger transportation or railroad companies, the commission concludes that no SBEIS is required.

11 NOTICE OF PROPOSED RULE MAKING: The commission filed a notice of proposed rule making (CR-102) on February 23, 2018, at WSR 18-06-010. The commission scheduled this matter for oral comment and adoption under Notice No. WSR 18-06-010 at 1:00 p.m., Thursday, April 12, 2018, in the Commission's Hearing Room, Second Floor, Richard Hemstad Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons the opportunity to submit written comments to the commission.

12 WRITTEN COMMENTS: The commission received written comments on the proposed rules on March 7, 2018, March 26, 2018, and March 29, 2018. Summaries of those written comments and commission staff's responses and recommendations are contained in Appendix A, shown below, and made part of, this order.

13 RULE-MAKING HEARING: The commission considered the proposed rules for adoption at a rule-making hearing on April 12, 2018, before Commissioner Ann E. Rendahl, and Commissioner Jay M. Balasbas. The commission heard a presentation and comments from Mathew Perkinson, motor carrier safety manager, transportation safety division, representing commission staff, and oral comments from representatives from the Brotherhood of Locomotive Engineers & Trainmen (BLET), BNSF Railway Company (BNSF), and the Sheet Metal, Air, Rail, and Transportation Union (SMART). Chairman David W. Danner listened to a recording of the April 12, 2018, hearing and participated fully in this rule making.

14 SUGGESTIONS FOR CHANGES THAT ARE REJECTED/ACCEPTED: Written and oral comments suggested changes to the proposed rules. The commission adopts staff's recommendations and reasons to accept or reject those suggestions contained in the summary matrix in Appendix A. The commission expands on its explanation for its actions in three areas, discussed below.

1. Driver Training

15 SMART and BNSF recommend changes to the proposed driver training requirements set out in WAC 480-62-290. Specifically, SMART suggests that contract railroad crew transportation drivers should be certified by independent driver training firms, and that prospective drivers should be required to pass a qualifying exam focusing on the unique and inherent risks associated with driving within railroad facilities, adjacent to railroad tracks, and frequently traversing railroad crossings.

16 We decline to adopt SMART's recommendations. RCW 81.61.050 provides that the commission must regulate the driver qualifications of persons providing contract railroad crew transportation consistent with the manner in which the commission regulates driver qualifications under chapter 81.70 RCW and Title 49 of the Code of Federal Regulations (C.F.R.). While commercial driver licenses are required to operate certain vehicles and all drivers are required to pass a road test,1 neither chapter 81.70 RCW nor Title 49 C.F.R. require or permit the commission to impose unique certification or exam requirements on some carriers but not others. Moreover, RCW 81.61.050 requires only that all contract transportation crew drivers complete eight hours of commission-approved safety training. Nothing in the statute authorizes or requires independent certification or testing upon completion of that training.

1 Under 49 C.F.R. Part 383, commercial driver licenses are required prior to operating the following vehicles: Single vehicles with a manufacturer's weight rating of 26,001 pounds or more; trailers with a manufacturer's weight rating of 10,001 pounds or more, and a combined vehicles' gross weight rating of 26,001 pounds or more; vehicles designed to transport sixteen or more persons (including the driver), including private and church buses; school buses, regardless of size; and vehicles used to transport any material that requires hazardous material placarding or any quantity of a material listed as a select agent or toxin in 42 C.F.R. 73. Pursuant to 49 C.F.R. Part 391.21, all persons who drive commercial motor vehicles must successfully complete a road test and be issued a certificate of driver's road test.

17 BNSF suggests that the rules be amended to allow each company providing contract railroad crew transportation to develop driver training based on written safety and operational rules provided by the railroad in lieu of requiring railroads to provide training. We decline to adopt this recommendation. RCW 81.61.050 mandates that the commission both require and approve safety training for contract railroad crew transportation providers. As such, the statute expressly grants the commission discretion to determine who is fit to provide the required training. As staff notes in its response, the railroad is uniquely qualified to provide training related to railroad yards and property, pick-up and drop-off points, and grade crossing safety. Accordingly, we conclude that a railroad or its designee is best suited to develop and provide safety training to contract railroad crew transportation drivers. We note that a railroad may designate its contract carrier to provide training on its behalf. Doing so, however, neither transfers the responsibility for providing the training nor the liability for failing to do so from the railroad to the carrier.

2. Vehicle Safety Requirements

18 BNSF requests that the commission clarify by this order that the vehicle equipment safety requirements set out in WAC 480-62-278(2) apply only to those features with which the vehicle was equipped at the time of manufacture. Currently, staff applies the standards set out in the 2017 North American Standard Out-of-Service Criteria Handbook to assess whether vehicles subject to inspection violate commission safety rules. When staff conducts a safety review of vehicles that hold eight or fewer passengers, it inspects only those features originally installed by the manufacturer. For example, vehicles that were not originally manufactured with emergency exits, such as SUVs or minivans, will not be placed out of service for failing to have an emergency exit. Consistent with the manner in which the commission regulates all passenger transportation carriers, we confirm that staff will assess compliance based on the manufacturer's specifications.

19 We decline to adopt SMART's and BLET's recommendation to require studded tires on contract crew transportation vehicles that cross mountain passes in winter months. Prescribing the use of studded tires would be inconsistent with the manner in which the commission regulates passenger carriers under chapter 81.70 RCW and Title 49 C.F.R. because no similar requirement exists for other transportation companies, many of whom traverse mountain passes in inclement weather. In addition, the Washington state patrol mandates the use of tire chains or other traction devices in inclement weather according to vehicle size.2 As staff notes in its response, WAC 480-62-278(1) requires drivers to "operate vehicles with due regard to circumstances or conditions at the time of operation." This necessarily includes following state laws and rules that govern the use of traction devices.

2 See WAC 204-24-050.

3. Notice Requirements

20 BNSF recommends the commission modify the language in WAC 480-62-287(2) to provide a general telephone number and email address for passengers wishing to file a complaint against a contract crew transportation carrier rather than directing those complaints to a specific staff member. We agree. Complaints against carriers should be received and routed by the commission's consumer protection division, which is responsible for handling complaints filed against any company the commission regulates. Consumers may file complaints with the commission by calling a toll-free number, which is fully staffed during business hours, or filling out a form on the commission's web site. Separately assigning complaint handling duties to various areas of the commission could impede the public's ability to file a complaint, create duplicative or redundant work, or result in inefficient and inconsistent processes. As such, complaints against contract crew transportation carriers will be received through the central complaint system then subsequently routed to the appropriate staff member in motor carrier safety for investigation and resolution. Accordingly, we adopt BNSF's recommendation as set out in Appendix A and paragraph 24, below.

21 At the adoption hearing, SMART expressed concerns about the commission's online complaint form, which contains a disclaimer stating that complaints become public records subject to disclosure under the Public Records Act (PRA). The PRA, however, specifically exempts from disclosure any personally identifying information included in safety complaints submitted under chapter 81.61 RCW.3 To address this issue, the commission will modify its online complaint form to include language explaining the relevant exemption and to add a field that allows users to indicate that their complaint qualifies for the exemption. We expect this change to be implemented on or around May 1, 2018.

3 See RCW 42.56.330(9).

22 COMMISSION ACTION: After considering all of the information regarding this proposal, the commission finds and concludes that it should adopt the rules as proposed in the CR-102 at WSR 18-06-010 with the changes described below and in Appendix A.

23 CHANGES FROM PROPOSAL: The commission adopts the proposal with the following changes from the text noticed at WSR 18-06-011:


WAC 480-62-240 (1)(d)	First sentence – replace "insure" with "ensure."
WAC 480-62-240 (1)(g)	First sentence – delete "The."
	First sentence – insert "Prior to operating a vehicle, the" before "driver."
	First sentence – replace "ensure that" with "determine whether."
WAC 480-62-245 (5)(a)	First sentence – replace first bullet point with (i).
	First sentence – replace second bullet point with (ii).
	First sentence – replace third bullet point with (iii).
	First sentence – insert "or" following "Where traffic is controlled by crossing gate arms or an alternately flashing light signal intended to give warning of the approach of a train;".
	First sentence – replace fourth bullet point with (iv).
WAC 480-62-278(6)	First sentence – replace "that" with "who."
WAC 480-62-278(7)	First sentence – replace "that" with "who."
WAC 480-62-281(1)	Second sentence – replace "passenger" with "contract crew."
WAC 480-62-281(2)	Second sentence – replace "passenger" with "contract crew."
WAC 480-62-281(3)	Second sentence – replace "passenger" with "contract crew."
WAC 480-62-287(2)	Delete first sentence.
	Second sentence – delete "contact" before "information."
	Second sentence – insert "necessary" after "information."
	Second sentence – replace "the motor carrier safety manager" with "filing complaints, which."
	Second sentence – replace "web site" with "website."
WAC 480-62-999	Second sentence – delete "branch of the Washington state."

24 STATEMENT OF ACTION; STATEMENT OF EFFECTIVE DATE: After reviewing the entire record, the commission determines that the sections in chapter 480-62 WAC listed in paragraph 6 above should be amended or adopted as applicable to read as set forth in Appendix B, as rules of the Washington utilities and transportation commission, to take effect pursuant to RCW 34.05.380(2) on the thirty-first day after filing with the code reviser.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 9, Amended 4, Repealed 0.

Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

ORDER

THE COMMISSION ORDERS:

25 (1) The commission adopts and amends chapter 480-62 WAC to read as set forth in Appendix B, as rules of the Washington utilities and transportation commission, to take effect on the thirty-first day after the date of filing with the code reviser pursuant to RCW 34.05.380(2).

26 (2) This order and the rule set out below, after being recorded in the register of the Washington utilities and transportation commission, shall be forwarded to the code reviser for filing pursuant to chapters 80.01 and 34.05 RCW and 1-21 WAC.

DATED at Olympia, Washington, April 18, 2018.

Washington Utilities and Transportation Commission

David W. Danner, Chairman

Ann E. Rendahl, Commissioner

Jay M. Balasbas, Commissioner

Appendix A

TR-170780 - Rail Crew Transportation Rule Making

Stakeholder Comments in Response to February 23, 2018, CR-102 and Opportunity to Submit Written Comments

April 3, 2018


	Commenter	Topic and WAC (if applicable)	Comment	Staff Response
1.	QM Transport Inc. (QM)	Driver Age 480-62-278(2)	QM comments that drivers should be required to be over eighteen years of age. QM states its insurance requires drivers to be twenty-five years of age or QM will incur a higher insurance fee.	Staff recommends leaving the rule as proposed in the CR-102 draft. In WAC 480-62-278(2), the commission adopts 49 C.F.R., Part 391, which requires that drivers be at least twenty-one years of age. The draft rules do not allow a driver of age eighteen. A company may impose its own requirements for the age of drivers it hires. QM may require drivers to be twenty-five years before hiring.
2.	SMART	Driver Age 480-62-278(2)	SMART comments that the legal age of drivers should be over age eighteen.	Staff recommends leaving the rule as proposed in the CR-102 draft. In WAC 480-62-278(2), the commission adopts 49 C.F.R., Part 391, which requires that drivers be at least twenty-one years of age. The draft rules do not allow a driver of age eighteen.
3.	QM	Vehicle Tires 480-62-278(1)	It appears the new rules require studded winter tires. QM believes winter traction tires would be appropriate, not studded tires.	Staff recommends leaving the rule as proposed in the CR-102 draft. The new rules do not require studded winter tires.
4.	SMART	Vehicle Tires 480-62-278(1)	SMART believes the rules should require studded tires on rail crew transport vehicles across mountain passes in winter snow and icy conditions.	Staff recommends leaving the rule as proposed in the CR-102 draft. In WAC 480-62-278(1), the proposed rules require that drivers "… operate vehicles with due regard to circumstances or conditions at the time of operation …." Staff believes this includes appropriate winter tires for the conditions under which the driver is operating.
5.	QM	Driver Training 480-62-290	QM states the United Transportation Union "would like driver training to be handled by an outside source." QM believes this put an unreasonable financial strain on its company.	Staff recommends leaving the rule as proposed in the CR-102 draft. The new rules do not require that driver training be handled by an outside source.
6.	SMART	Driver Training 480-62-290	SMART asserts that professional driver training firms outside of the hiring company should be required to certify railroad crew transport drivers.	Staff recommends leaving the rule as proposed in the CR-102 draft. The proposed rules are consistent with the legislation.
7.	SMART	Driver Training 480-62-290	SMART suggest[s] that prospective drivers be required to pass a specifically developed qualifying exam "focusing on the unique and inherent risks associated with driving within railroad facilities, adjacent to railroad tracks and frequently traversing railroad crossings."	Staff recommends leaving the rule as proposed in the CR-102 draft. The proposed rules are consistent with the legislation. In addition, the rules require the railroads to provide training directly associated with railroad yards and property, pick-up and drop-off points, any rules or requirements imposed by the railroad, general railroad safety requirements, and grade crossing safety.
8.	BNSF	Driver Training 480-62-290 [(1)](h)	BNSF suggests that the draft rules, specifically WAC 480-62-290 [(1)](h) be amended to allow each company providing contract crew transportation "develop its safety training using written safety and operating rules provided by the railroad."	Staff recommends leaving the rule as proposed in the CR-102 draft. The proposed rules appropriately require the railroad to provide training for which it is uniquely qualified – training associated with railroad yards and property, pick-up and drop-off points, any rules or requirements imposed by the railroad, general railroad safety requirements, and grade crossing safety.
9.	QM	Medical Certificates 480-62-278(2)	QM does not believe medical certificates should be required for drivers. Current proposed rules require a medical certificate in WAC 480-62-278(2), through adoption of 49 C.F.R., Part 391.	Staff recommends leaving the rule as proposed in the CR-102 draft. The proposed rules are consistent with other areas of commission regulation, such as auto transportation and charter bus rules. Staff believes it is important that drivers are medically qualified before operating.
10.	SMART	Extend Rule Making	SMART suggests the commission allow a "strictly limited rule-making process" to remain open for the next twelve to eighteen months to review effectiveness of rules regarding driver training, hazardous loading and unloading locations, and the need for studded tires in the winter.	Staff recommends closing this rule making once rules are adopted and in effect. The commission can review the effectiveness of its rules at any time and can open a rule making to revise rules, if necessary, at any time.
11.	BNSF Railway (BNSF)	Vehicle Safety Requirements 480-62-278(2)	BNSF comments that the commission should specifically note that vehicle equipment safety requirements include only items that are applicable as the vehicle manufacturer originally intended.	Staff recommends leaving the rule as proposed in the CR-102 draft. BNSF's comments refer to WAC 480-62-278(2), where the commission adopts a number of federal requirements for vehicle safety. These include safety requirements that apply to contract crew transportation vehicles and for larger commercial motor vehicles. If a vehicle is not required to have certain equipment, staff would not inspect for that equipment. For example, if a vehicle is smaller and not required to have air brakes, staff would not inspect for air brakes. The proposed rules are consistent with other areas of commission regulation, such as auto transportation, and charter bus rules.
12.	BNSF	Notice Requirements 480-62-287	BNSF comments that the commission should provide a general telephone number (rather than an individual staff person, such as the motor carrier manager, as currently proposed) and email address for passengers who wish to file complaints.	Staff agrees with BNSF comments. Staff recommends changing the language as follows in WAC 480-62-287(2): (2) The telephone number and email address of the commission's motor carrier safety manager where passengers may file complaints. The contact information necessary for the motor carrier safety manager filing complaints, which can be found on the agency's public web site."

AMENDATORY SECTION (Amending WSR 04-11-023, filed 5/11/04, effective 6/11/04)

WAC 480-62-125 Definitions.

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

"Class I railroad company" means a railroad company having annual operating revenues of $250 million or more;

"Class II railroad company" means a railroad company having annual operating revenue of less than $250 million, but more than $20 million; and

"Class III railroad company" means a railroad company having annual operating revenues of $20 million or less.

"Commission" means the Washington utilities and transportation commission.

"Contract crew transportation company" means any person, organization, company or other entity that operates one or more contract crew transportation vehicles.

"Contract crew transportation vehicle" means every motor vehicle designed to transport fifteen or fewer passengers, including the driver, that is owned, leased, operated, or maintained by a person contracting with a railroad company or its agents, contractors, subcontractors, vendors, subvendors, secondary vendors, or subcarriers and used primarily to provide railroad crew transportation.

"Department of labor and industries" means the Washington state department of labor and industries.

"Department of transportation" means the Washington state department of transportation.

"On track equipment" means self-propelled equipment, other than locomotives, that can be operated on railroad tracks.

"Passenger carrying vehicle" means those buses ((and)), vans, trucks, and cars owned, operated, and maintained by a railroad company ((which)) primarily used to transport((s)) railroad employees ((in)), other than in the cab of such vehicles, and are designed primarily for operation on roads which may or may not be equipped with retractable flanged wheels for operation on railroad tracks.

"Railroad" means every permanent road with a line of rails fixed to ties providing a track for cars or equipment drawn by locomotives or operated by any type of power, including interurban and suburban electric railroads, for the public use of conveying persons or property for hire, with all bridges, ferries, tunnels, equipment, switches, spurs, sidings, tracks, stations, and terminal facilities of every kind, used, operated, controlled, managed, or owned by or in connection therewith. Unless otherwise provided by rule, the term "railroad" does not include logging and industrial railroads, or street railways operating within the limits of any incorporated city or town.

"Railroad company" means every corporation, company, partnership, association, joint stock association, or person, their lessees, trustees, or receivers appointed by any court, and any common carrier owning, operating, controlling or managing any railroad or any cars or other equipment used on, or in connection with the railroad within this state.

"Railroad police officer" means a peace officer who is commissioned in his or her state of legal residence or state of employment by a railroad company to enforce state laws for the protection of railroad property, personnel, passengers and/or cargo.

"Remote-control area" means any place remote-control operations are conducted on a railroad.

"Remote-control operations" means controlling the movement of locomotives through the use of radio transmitter and receiver systems by persons not physically located at the controls within the confines of a locomotive cab.

"Remote-control zone" means a designated area where access is restricted in which remote-control operations may occur under alternative point protection procedures.

"State" means the state of Washington.

AMENDATORY SECTION (Amending WSR 10-03-044, filed 1/14/10, effective 2/14/10)

WAC 480-62-240 Railroad owned or operated passenger carrying vehicles—Equipment.

(1) Equipment requirements for all vehicles.

(a) Vehicles must comply with all applicable equipment requirements of Title 46 RCW.

(b) Vehicles must have exhaust systems that prevent exposure of passengers to the vehicle's emissions.

(c) Vehicles must have two external rear vision mirrors, one at each side of the cab. The mirrors must be firmly attached to the motor vehicle at a point where the driver is provided a view of the highway to the rear along both sides of the vehicle. An outside mirror may be placed only on the driver's side on vehicles in which the driver has a view to the rear by means of an interior mirror.

(d) Vehicles must be equipped with a steering system maintained to ((insure)) ensure that lash or preplay do not exceed those values set forth in 49 C.F.R., Parts 570.7 and 570.60 (Vehicle in Use Inspection Standards). Information about Title 49 C.F.R. regarding the version adopted and where to obtain it is set out in WAC 480-62-999.

(e) Vehicles must have a heating system that will maintain an ambient temperature of at least fifty-five degrees in passenger areas.

(f) Vehicles must have at least three red-burning fusees, three red portable emergency reflectors, or at least two red cloth flags suitable for warning the motoring public in an emergency. The driver must ensure that such equipment is in the vehicle and is maintained in good condition. Any devices that may create a spark or open flame must be carried in a separate compartment or a closed metal container provided for that purpose.

(g) Prior to operating a vehicle, the driver must determine whether such equipment is in the vehicle and is maintained in good condition.

(h) Any devices that may create a spark or open flame must be carried in a separate compartment or a closed metal container provided for that purpose.

(i) Vehicles must have a two and one-half pound dry chemical fire extinguisher or its equivalent, properly filled and located where it is readily accessible for use. The extinguisher must allow visual determination of the state of its charge at all times. The extinguishing agent must be nontoxic and ((preferably)) noncorrosive. The fire extinguisher must be suitable for attachment to the motor vehicle, bear the label of approval by the Underwriters Laboratories, Inc., and be kept in good working condition at all times.

(((h))) (j) Vehicles must have a first-aid kit located where it is readily accessible. The kit must contain all of the items specified in ANSI Z308.1-2009, Minimum Requirements for Workplace First Aid Kits. Additionally, the kit must contain gloves capable of preventing exposure to bloodborne pathogens. Items used from first-aid kits must be replaced before the next shift, and kits must be checked for compliance with this rule if the seal on the kit is broken. Information about ANSI Z308.1-2009 regarding the version adopted and where to obtain it is set out in WAC 480-62-999.

(2) Equipment requirements for specified vehicles.

(a) Coupling devices used on a vehicle equipped with retractable flange wheels for operation on railroad tracks must be substantial and made of metal. The devices must be equipped with safety chains or straps of sufficient strength to prevent separation in the event of accidental uncoupling.

(b) A passenger compartment separate from the cab of the vehicle must be made of metal and be fastened directly to the frame of the vehicle. The compartment must have an interior lining sufficient to absorb condensation, and padded seats and backrests firmly secured in place. The floor of the compartment must be constructed to bear the weight of all cargo and passengers. The floor must not have unnecessary openings, and it must be constructed to prevent the entry of noxious fumes or permeation with flammable materials. The compartment must have a curtain of nonpermeable material of sufficient weight and size to close off the rear opening and a tailgate ((which)) that must be closed whenever the vehicle is in motion. If the bottom of the entrance to the passenger compartment is more than three feet six inches above ground level, the vehicle must have permanent or temporary steps designed for the safe boarding and discharge of passengers.

(c) Communication between a cab and a separated passenger compartment must be provided by means of a light or audible device mounted in the cab of the vehicle that may be activated by a passenger in the rear compartment.

(d) On vehicles designed to transport nine or more passengers, an emergency exit must be placed at the end of the vehicle opposite the regular entrance. The exit must be at least six and one-half square feet in area, and the smallest dimension must be at least eighteen inches. The route to and from the emergency exit must be unobstructed at all times.

AMENDATORY SECTION (Amending WSR 01-04-026, filed 1/30/01, effective 3/2/01)

WAC 480-62-245 Railroad owned or operated passenger carrying vehicles—Operation.

(1) General.

(a) All passenger carrying motor vehicles must be operated in compliance with state law no matter where the vehicle is operated.

(b) Drivers must operate vehicles in a careful and prudent manner and at reasonable and proper speeds, with due regard to circumstances and to the use of highways by others.

(2) Minimum age, skill, and physical condition of drivers.

(a) Drivers of passenger carrying vehicles must be at least eighteen years old.

(b) Before being allowed to drive or operate a passenger carrying vehicle, drivers must have demonstrated the physical capability of handling the controls of the vehicle with ease.

(c) Before driving a vehicle, drivers or operators must obtain either a valid Washington state driver's license or a valid license from the state of the driver's residence. The driver must carry the license at all times while operating a vehicle. If the passenger carrying vehicle is a type for which the state of Washington requires an extraordinary license or endorsement, the driver must have such license or endorsement.

(3) Driver's daily hours of service. No driver of any passenger carrying vehicle may drive for more than ten hours without resting afterward for a minimum of eight consecutive hours.

(4) Refueling. No driver or any employee of a railroad company operating within the state may:

(a) Fuel a passenger carrying vehicle with the engine running;

(b) Smoke or expose any flame in the vicinity of a vehicle being fueled;

(c) Fuel a passenger carrying vehicle unless the nozzle of the fuel hose is continuously in contact with the intake pipe of the fuel tank;

(d) Insofar as practicable, permit any other person to engage in activities that might result in a fire or explosion((.));

(e) Except on buses, all occupants of the vehicle, except the driver and those within the operating cab, must dismount and stand clear while the vehicle is being refueled.

(5) Driving rules.

(a) Drivers must bring vehicles to a complete stop not less than fifteen feet from the nearest rail of any at-grade crossing before crossing the track except:

((-)) (i) Where traffic is controlled by a police officer or a duly authorized flagger;

((-)) (ii) Where traffic is regulated by a traffic control signal;

((-)) (iii) Where traffic is controlled by crossing gate arms or an alternately flashing light signal intended to give warning of the approach of a train; or

((-)) (iv) Where an official traffic control device as designated by the commission pursuant to RCW 81.53.060 (i.e., an "EXEMPT" sign, specified as R15-3 by the Manual on Uniform Traffic Control Devices) gives notice that the stopping requirement imposed by this section does not apply. Information about the Manual on Uniform Traffic Control Devices regarding the version adopted and where to obtain it is set out in WAC 480-62-999.

(b) Drivers must not change gears while crossing any railroad tracks.

(c) No driver may ((drink intoxicating liquors)) consume alcohol or ingest any controlled substance while on duty, or drive while affected by the use of intoxicating liquor or other substance ((which)) that might impair the ability to drive.

(d) No driver may proceed down a grade with the gears in neutral or the clutch disengaged.

(e) At the beginning of his or her use of a vehicle, the driver must perform a brake test immediately before, and immediately after, the vehicle begins moving to ensure that the brakes are functioning properly.

(6) Loading and carrying of passengers.

(a) Drivers are in charge of the vehicle and must require passengers to observe vehicle rules.

(b) Passengers may not enter or exit from the vehicle while it is in motion, or ride on running boards, fenders, bumpers, tops of cabs, or with any part of their body projecting beyond the sides or the ends of the vehicle. ((When equipment or tools are carried inside the vehicle, they must be stored in enclosed racks or boxes that are secured to the vehicle in a manner that prevents employees from being struck in the event of sudden starts, stops, or turns. The driver must assure that tools and materials are properly secured before moving the vehicle.))

(7) Carrying equipment or tools.

(a) When equipment or tools are carried inside the vehicle, they must be stored in enclosed racks or boxes that are secured to the vehicle in a manner that prevents employees from being struck in the event of sudden starts, stops, or turns.

(b) All tools and equipment, including cylinders, containers, or drums must be properly secured so they will not interfere with the use of any exit.

(8) Limitation on transportation of explosives, gasoline, and other hazardous materials on passenger carrying vehicles.

(a) Explosives other than track torpedoes and fusees may not be carried in or on any vehicle while the vehicle is being used to transport crew members in a passenger compartment.

(b) If track torpedoes or fusees are carried in a passenger carrying vehicle, they must be carried in a separate compartment or container provided for that purpose.

(c) Gasoline, or other hazardous materials, must not be carried in either the cab or in the passenger compartment; however, oxygen or acetylene cylinders may be carried if gauges and regulators have been removed with caps in place before loading.

(d) Passenger carrying vehicles may be used to carry flammable materials when they are located outside of and isolated from the passenger carrying area, and are stored in containers approved by the Underwriters Laboratories, Inc. Containers for fuel must be vented in a manner that prevents the hazardous concentration of fumes. ((All tools and equipment, including cylinders, containers, or drums, must be properly secured where they will not interfere with the use of any exit.))

(e) A passenger carrying vehicle containing hazardous materials must not be parked within three hundred feet of an open fire.

(f) Smoking is prohibited within fifty feet of a vehicle carrying explosive or flammable materials.

NEW SECTION

WAC 480-62-275 Contract crew transportation registration and permit required.

(1) A person must register with, and receive a permit from, the commission before operating as a contract crew transportation company in the state of Washington.

(2) The company name is the name of the permit holder.

(a) A company electing to conduct operations under a trade name must first register the trade name with the commission.

(b) A company must conduct all operations under the company name, a registered trade name, or both.

NEW SECTION

WAC 480-62-278 Contract crew transportation vehicle and driver safety requirements.

(1) Every contract crew transportation company must operate its vehicles in compliance with state law, no matter where the vehicle is operated. Drivers must operate vehicles in a careful and prudent manner, at reasonable and proper speeds, with due regard to circumstances or conditions at the time of operation.

(2) Companies must comply with the parts of 49 C.F.R. adopted by reference that are shown in the chart in subsection (4) of this section. Information about 49 C.F.R. including the version adopted by the commission and where to obtain copies is set out in WAC 480-62-999.

(3) The commission will place out-of-service any motor vehicle having safety defects identified in the North American Uniform Out-Of-Service Criteria. Information about the North American Uniform Out-Of-Service Criteria including the version adopted and where to obtain copies is set out in WAC 480-62-999. A company must not operate any vehicle placed out-of-service until proper repairs have been completed.

(4) The commission will place out-of-service any driver meeting criteria identified in the North American Uniform Out-Of-Service Criteria. A company must not allow a driver who has been placed out-of-service to operate a motor vehicle until the conditions causing the driver to be placed out-of-service have been corrected.


49 C.F.R. Part:		Notes:
Part 379 -	Preservation of Records	Entire Part 379 is adopted and applies to Washington intrastate operations.
Part 385 -	Safety Fitness Procedures	Entire Part 385 is adopted and applies to Washington intrastate operations.
Part 390 -	Safety Regulations, General	Entire Part 390 is adopted and applies to Washington intrastate operations, with the following exceptions:
		(1) The terms "motor vehicle," "commercial motor vehicle," and "private vehicle" are not adopted. Instead, where those terms are used in Title 49 C.F.R., they have the meanings assigned to "contract crew transportation vehicle" in WAC 480-62-125 (Definitions).
		(2) Whenever the term "director" is used in Title 49 C.F.R., it means the commission.
Part 391 -	Qualification of Drivers	Entire Part 391 is adopted, with the following exceptions:
		(1) Part 391.49 (alternative physical qualification standards for the loss or impairment of limbs) is not adopted for drivers who operate vehicles exclusively in intrastate commerce. Instead refer to WAC 480-62-281 for intrastate medical waivers.
Part 392 -	Driving of Motor Vehicles	Entire Part 392 is adopted and applies to Washington intrastate operations.
Part 393 -	Parts and Accessories Necessary for Safe Operation	Entire Part 393 is adopted and applies to Washington intrastate operations.
Part 395 -	Hours of Service of Drivers	Entire Part 395 is adopted and applies to Washington intrastate operations.
Part 396 -	Inspection, Repair, and Maintenance	Entire Part 396 is adopted and applies to Washington intrastate operations.
Part 397 -	Transportation of Hazardous Materials, Driving and Parking Rules	Entire Part 397 is adopted and applies to Washington intrastate operations.

(5) Companies operating a contract crew transportation vehicle must:

(a) Comply with all state and local laws and rules governing licensing, vehicle safety, and driver safety.

(b) Maintain all motor vehicles in a safe and sanitary condition.

(6) Persons who drive for companies operating a contract crew transportation vehicle must be immediately and automatically disqualified from operating a contract crew transportation vehicle for a period of three years if:

(a) The person is convicted of, or is found to have committed, two or more traffic violations that result in suspension or revocation of the person's driver's license within a three-year period for a reason other than failure to pay fines.

(b) The person is convicted of, or is found to have committed, any of the following offenses:

(i) Any drug or alcohol-related traffic offense.

(ii) Using a vehicle to commit a felony.

(iii) Leaving the scene of an accident.

(iv) Prohibited passing of another vehicle.

(v) A railroad-highway grade crossing offense identified in RCW 46.25.090(8).

(vi) Driving with a suspended, revoked, or canceled license.

(7) Persons who drive for companies operating a contract crew transportation vehicle that sustain a conviction or traffic violation as outlined in subsection (5) of this section, must report the conviction or infraction to the company within ten days of the date of the conviction or infraction.

(8) No company operating a contract crew transportation vehicle, its agents, officers, or employees, will allow any article, commodity, or substance to be loaded in or on any vehicle used by the company to transport passengers that is:

(a) Dangerous to the lives and safety of passengers.

(b) Prohibited by the hazardous materials rules in Title 49 C.F.R. from being transported on passenger-carrying vehicles.

(9) No company operating a contract crew transportation vehicle may carry more passengers than the vehicle was originally manufactured to carry.

(10) All vehicles operated under the provisions of this chapter are at all times subject to inspection by the commission or its duly authorized representatives.

(11) All contract crew transportation companies must implement a controlled substance and alcohol testing program to include:

(a) Preemployment testing: A preemployment controlled substance and alcohol test must be administered prior to a driver performing a safety-sensitive function.

(b) Postaccident testing.

(i) An alcohol test must be administered as soon as practicable but no longer than eight hours following an accident where the accident involved the loss of human life, a driver receives a citation for a moving traffic violation arising from the accident if the accident involved bodily injury to any person who, as a result of the injury immediately receives medical treatment away from the scene of the accident or one or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.

(ii) A controlled substance test must be administered within thirty-two hours following an accident where the accident involved the loss of human life, a driver receives a citation for a moving traffic violation arising from the accident if the accident involved bodily injury to any person who, as a result of the injury immediately receives medical treatment away from the scene of the accident or one or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.

(i) Every driver shall submit to random alcohol and controlled substance testing.

(ii) The minimum annual percentage rate for random alcohol testing shall be ten percent of the average number of driver positions.

(iii) The minimum annual percentage rate for random controlled substances testing shall be twenty-five percent of the average number of driver positions.

(d) Reasonable suspicion testing.

(i) All persons designated to supervise drivers shall receive at least sixty minutes of training on alcohol misuse and receive at least an additional sixty minutes of training on controlled substances use.

(ii) The training will be used by supervisors to determine whether reasonable suspicion exists to require a driver to undergo testing. The training shall include the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances.

NEW SECTION

WAC 480-62-281 Contract crew transportation intrastate medical waivers.

(1) Department of licensing intrastate medical waiver. A contract crew transportation company may use a driver that is not physically qualified to drive a commercial motor vehicle under 49 C.F.R. Part 391.41, if the driver:

(a) Only operates motor vehicles intrastate, wholly within the state of Washington; and

(b) Has obtained from the Washington state department of licensing an intrastate medical waiver to drive a commercial motor vehicle.

For the purposes of a department of licensing medical waiver, a commercial motor vehicle means a motor vehicle:

(i) With a gross vehicle weight rating over 26,000 lbs.;

(ii) Transporting sixteen or more passengers, including the driver; or

(iii) With a manufacturer's seating capacity of sixteen or more passengers, including the driver.

(2) Doctor's statement of intrastate medical waiver. A contract crew transportation company may use a driver that is not physically qualified to drive a commercial motor vehicle under 49 C.F.R. Part 391.41, if the driver:

(a) Holds a valid Washington state driver's license;

(b) Has received a doctor's statement that:

(i) The driver's medical condition is not likely to interfere with the driver's ability to safely operate a commercial motor vehicle; and

(ii) The doctor's opinion is that the driver's condition is likely to remain stable for the two years that the medical certificate is valid.

(c) Operates commercial motor vehicles intrastate wholly within the state of Washington. For the purposes of a doctor's statement of intrastate medical waiver, a commercial motor vehicle means a motor vehicle:

(i) With a gross vehicle weight rating under 26,001 lbs.;

(ii) Transporting fifteen or fewer passengers, including the driver; or

(iii) With a manufacturer's seating capacity of fifteen or fewer passengers, including the driver.

(3) Driver qualification files. A contract crew transportation company that uses a driver under an intrastate medical waiver must maintain in the driver's qualification file a copy of the doctor's statement of intrastate medical waiver.

NEW SECTION

WAC 480-62-284 Contract crew transportation insurance requirements.

(1) Companies operating a contract crew transportation vehicle must meet the following minimum insurance requirements:

(a) Five million dollars combined single limit coverage for bodily injury and property damage liability coverage.

(b) One million dollars uninsured and underinsured motorist coverage.

(2) Insurance policies must:

(a) Be written by an insurance company authorized to write insurance in the state of Washington.

(b) Include the Uniform Motor Carrier Bodily Injury and Property Liability Endorsement (Form F).

(3) A company must file and maintain a Uniform Motor Carrier Bodily Injury Property Damage Certificate of Insurance (Form E). Form E is a standard motor carrier insurance form recognized by the insurance industry and is filed with the commission by an insurance company.

(a) The Form E must be issued in the company name exactly as it appears on the company's permit.

(b) The Form E must remain in effect until canceled by a Notice of Cancellation (Form K). The Form K must be filed with the commission by the insurance company not less than thirty days before the cancellation effective date.

(d) A company may file a Uniform Motor Carrier Bodily Injury and Property Damage Liability Surety Bond (Form G) in place of a Form E.

(4) If a company's insurance filing is canceled and a new filing is not received prior to the cancellation date, the commission may dismiss a company's application for a permit or cancel an existing permit.

(5) If a contract crew transportation company hires a driver to drive a vehicle owned by the contract crew transportation company to transport a railroad crew, the insurance requirements outlined in subsection (1) of this section, apply.

(a) The insurance requirements may be met by either the contract crew transportation company, the third party, or the railroad company.

(b) It is the responsibility of the contract crew transportation company to obtain and retain proof of insurance coverage for the third-party driver.

NEW SECTION

WAC 480-62-287 Contract crew transportation passenger notice requirements.

Companies operating a contract crew transportation vehicle must post adequate notice in a conspicuous location in all vehicles that advises passengers of:

(1) Their right to submit a complaint to the commission regarding alleged unsafe driver or vehicle conditions.

(2) The information necessary for filing complaints, which can be found on the agency's public web site.

NEW SECTION

WAC 480-62-290 Contract crew transportation safety training.

(1) Companies providing contract crew transportation must provide at least eight hours of safety training that includes, but is not limited to:

(a) Vehicle safety awareness.

(b) Passenger safety awareness.

(d) Grade crossing safety.

(e) Load securement.

(f) Distracted driving.

(g) Fatigued driving.

(h) Familiarization with:

(i) Railroad yards, property, pick-up points and drop-off points where the driver is expected to operate the vehicle.

(ii) Any rules or requirements imposed by the railroad at the locations where the driver is expected to operate the vehicle.

(iii) General railroad safety requirements.

(iv) Grade crossing safety.

(i) The training required in subsection (h) of this section must be provided by the railroad for whom the driver will be transporting railroad crews. The railroad may contract with a third party or other designee to provide training, however, such delegation does not absolve the railroad of responsibility to ensure compliance with this section.

(2) Each company providing contract crew transportation must provide to the commission a description of its safety training program for approval prior to implementing the program at the company.

(3) Each company must require existing drivers to attend the safety training within six months of approval of the training program by the commission.

(4) If the commission finds driver safety behavior is such that refresher training is warranted, the commission may require such training.

NEW SECTION

WAC 480-62-293 Contract crew transportation enforcement.

(1) The commission will investigate safety complaints related to contract crew transportation. Information included in safety complaints that identifies the employee who submitted the complaint is exempt from public inspection and copying pursuant to RCW 42.56.330.

(2) The commission may, in enforcing rules and orders, inspect any contract crew transportation vehicle.

Contract crew transportation companies are required to inspect, or have inspected, every vehicle as required in WAC 480-62-278 through adoption of 49 C.F.R., Part 396.

(3) The commission may take enforcement action, based on a complaint or on its own motion, as follows:

(a) Assess penalties as warranted.

(b) Suspend or revoke a permit after notice and opportunity for hearing.

NEW SECTION

WAC 480-62-296 Contract crew transportation reporting requirements.

Companies operating a contract crew transportation vehicle must, at the request of the commission, provide data relevant to any complaints and accidents, including:

(1) Location;

(2) Time of day;

(3) Visibility;

(4) Description of the event;

(5) Any resulting property damage or personal injuries;

(6) Any corrective action taken by the railroad company, person operating the contract crew transportation vehicle, or the commission.

NEW SECTION

WAC 480-62-299 Contract crew transportation record retention requirements.

A contract crew transportation company must keep and provide or make available to the commission on request, and within forty-eight hours, the following records for the specified time periods:

(1) All documents related to driver hours of service for a period of at least six months;

(2) Verification of each driver's qualifications for the duration of the driver's employment and for three years thereafter;

(3) All documents related to alcohol and controlled substance testing for a period of three years;

(4) All documents related to vehicle maintenance for a period of twelve months; and

(5) All documents related to any vehicle collisions or other accidents that occur for a period of at least three years from the date of the accident. Such records must include copies of all accident reports and any other documents that identify the date and geographic location of the accident, the driver name, the number of fatalities or persons injured and a description of those injuries.

AMENDATORY SECTION (Amending WSR 17-15-054, filed 7/13/17, effective 8/13/17)

WAC 480-62-999 Adoption by reference.

In this chapter, the commission adopts by reference all or portions of regulations and standards identified below. They are available for inspection at the commission ((branch of the Washington state)) library. The publications, effective dates, references within this chapter, and availability of the resources are as follows:

(1) Title 49 Code of Federal Regulations, cited as 49 C.F.R., including all appendices and amendments is published by the United States Government Printing Office.

(a) The commission adopts the version in effect on December 31, ((2016)) 2017.

(b) This publication is referenced in WAC 480-62-160 (Compliance policy), WAC 480-62-200 (Roadway worker safety and operating rules and statutes), WAC 480-62-205 (Track safety standards), WAC 480-62-210 (Crossing signal circuitry), WAC 480-62-215 (Hazardous materials regulations), WAC 480-62-235 (Flaggers), ((and)) WAC 480-62-240 (Passenger carrying vehicles—Equipment), and WAC 480-62-278 (Contract crew transportation vehicle and driver safety requirements).

(c) Copies of Title 49 Code of Federal Regulations are available from the U.S. Government Online Bookstore, http://bookstore.gpo.gov/, and from various third-party vendors.

(2) Manual on Uniform Traffic Control Devices, cited as Manual on Uniform Traffic Control Devices, or MUTCD, is published by the United States Government Printing Office.

(a) The commission adopts the version in effect on December 31, ((2016)) 2017.

(b) This publication is referenced in WAC 480-62-230 (Traffic control devices) and WAC 480-62-235 (Flaggers).

(c) Copies of the MUTCD are available from the U.S. Government Online Bookstore, http://bookstore.gpo.gov/, and from various third-party vendors.

(3) ANSI Z308.1 - 2015 American National Standard for Minimum Requirements for Workplace First Aid Kits is published by the American National Standards Institute.

(a) The commission adopts the version in effect on December 31, ((2016)) 2017.

(b) This publication is referenced in WAC 480-62-240 (Passenger carrying vehicles—Equipment).

(c) Copies of ANSI Z308.1 - 2015 American National Standard for Minimum Requirements for Workplace First Aid Kits and Supplies are available from IHS Global Engineering Documents in Englewood, Colorado.

(4) ANSI/ISEA ((207-2011)) 207-2015 - American National Standard for High-Visibility Public Safety Vests is published by the American National Standards Institute.

(a) The commission adopts the version in effect on December 31, ((2016)) 2017.

(b) This publication is referenced in WAC 480-62-235 (Flaggers).

(c) Copies of ANSI/ISEA ((207-2011)) 207-2015 - American National Standard for High-Visibility Public Safety Vests are available from IHS Global Engineering Documents in Englewood, Colorado.

(5) North American Standard Out-of-Service Criteria (OOSC) is published by the Commercial Vehicle Safety Alliance (CVSA).

(a) The commission adopts the version in effect on April 1, 2017.

(b) This publication is referenced in WAC 480-62-278 (Contract crew transportation vehicle and driver safety requirements).