WSR 18-10-011 PROPOSED RULES DEPARTMENT OF TRANSPORTATION [Filed April 20, 2018, 1:37 p.m.] Original Notice. Preproposal statement of inquiry was filed as WSR 17-11-001. Title of Rule and Other Identifying Information: WAC 468-38-100 Pilot/escort vehicle and operator requirements, the rule provides instruction to pilot/escort vehicle operators (PEVO) when escorting oversized loads. Hearing Location(s): On June 11, 2018, at 9:30 a.m., at the Transportation Building, Nisqually Room, 1D2, 310 Maple Park Avenue S.E., Olympia, WA 98504. Please sign in at the reception desk. Date of Intended Adoption: June 11, 2018. Submit Written Comments to: Anne Ford, P.O. Box 47367, Olympia, WA 98504-7367, email fordA@wsdot.wa.gov, fax 360-704-6391, by June 7, 2018. Assistance for Persons with Disabilities: Contact Karen Engle, phone 360-704-6362, email EngleKa@wsdot.wa.gov, by June 7, 2018. Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposal will require certified, for hire PEVOs to carry proof of insurance on them while performing the duties of a PEVO.
"(16) Are certified pilot/escort vehicle operators required to have commercial auto insurance?
Yes, for hire certified pilot/escort vehicle operators are required to have insurance to conduct the duties associated with this rule:
(a) One hundred thousand dollars for bodily injury to or death of one person in any one accident;
(b) Three hundred thousand dollars for bodily injury to or death of two or more persons in any one accident; and
(c) Fifty thousand dollars for damage to or destruction of property of others in any one accident.
Satisfactory evidence of the insurance shall be carried at all times by the operator of the pilot vehicle, which evidence shall be displayed upon request by a law enforcement officer." Reasons Supporting Proposal: The Northwest Pilot Car Association (NWPCA) requested this rule to provide a requirement for PEVOs to have insurance that will cover them while escorting oversize loads. Previous requirements were not sufficient for this industry. NWPCA recommends that their members and those in this industry carry insurance beyond their personal insurance to protect them while operating as a PEVO. Statute Being Implemented: RCW 46.44.090. Rule is not necessitated by federal law, federal or state court decision. Name of Proponent: Washington state department of transportation (WSDOT), traffic operations office, commercial vehicle services, governmental. Name of Agency Personnel Responsible for Drafting: Justin Heryford, 7345 Linderson Way S.W., Tumwater, WA, 360-705-7987; Implementation: Anne Ford, 7345 Linderson Way S.W., Tumwater, WA, 360-705-7341; and Enforcement: Captain Michael Dahll, 106 11th Avenue S.W., Suite G300, 360-596-3800. A school district fiscal impact statement is not required under RCW 28A.305.135. A cost-benefit analysis is not required under RCW 34.05.328. The rule change will not have a fiscal impact to the agency. The proposed rule does impose more-than-minor costs on businesses. Small Business Economic Impact Statement A brief history of the issue: May of 2016, NWPCA proposed a rule change to WAC 468-38-100 to include a requirement for commercial auto insurance for certified PEVOs.
An explanation of why the proposed rule is needed: Washington state does not have a commercial insurance requirement for PEVOs. Small business owners rely on personal automobile insurance to cover them while conducting duties as a PEVO. Personal auto policies exclude business usage, which places PEVOs at risk while conducting duties as a PEVO.
A brief description of the probable compliance requirements and the kinds of professional services that a small business is likely to need in order to comply with the proposed rule: PEVOs will need to obtain a commercial auto policy of at least:
(a) One hundred thousand dollars for bodily injury to or death of one person in any one accident;
(b) Three hundred thousand dollars for bodily injury to or death of two or more persons in any one accident; and
(c) Fifty thousand dollars for damage to or destruction of property of others in any one accident.
This type of coverage is not offered by many insurance companies and has a potential for expensive annual premiums.
1. Identify which businesses are required to comply with the proposed rule and what the cost thresholds are. Analyze the probable cost of compliance. Identify the probable costs to comply with the proposed rule, including: Cost of equipment, supplies, labor, professional services and increased administrative costs. Based on input, describe how compliance with the rule may cause lost sales or revenue.
Certified PEVOs working for hire as a small business conducting piloting/escorting as prescribed in WAC 468-38-100. Estimated additional costs per year are $1,200 - $6,000 based on information provided by NWPCA and insurance brokers with experience obtaining the coverage requested in the proposal.
The range of costs is attributed to the duties fulfilled by the PEVO, the driving record of the individual, and the type of vehicle they are purchasing the insurance for, the distances traveled and the time established in that line of work. Compliance with the rule will add additional costs to a small business, which will affect their revenue.
2. (a) A statement of the steps taken by the agency to reduce the costs of the rule on small businesses as required by RCW 19.85.030(2), or reasonable justification for not doing so, addressing the options listed in RCW 19.85.030(2);
NWPCA will be responsible for maintaining on their web site a list of insurance providers and the benefits of obtaining a commercial auto policy for the duties associated with pilot/escort vehicle operations.
NWPCA is aware of the costs associated with the rule change and they are requesting WSDOT implement the rule for their industry.
The proposal was reviewed by NWPCA, Washington state patrol, Washington trucking associations, and the Evergreen Safety Council. The proposal comes from the industry after their concern for PEVOs conducting this type of work without commercial auto coverage was discussed within their association. NWPCA determined that private vehicle insurance would not cover costs associated during a motor vehicle accident for PEVOs while they are using their own vehicle to operate as a business. NWPCA determination included discussions with insurance providers and brokers who have experience and expertise in commercial and personal coverages.
WSDOT sent the proposal to over five hundred certified PEVOs for review and comments.
(b) A description of how the agency will involve small businesses in the development of the rule: Rule negotiation process included the Washington trucking associations and NWPCA whose members include both large and small businesses. The Washington trucking associations commented on the proposal saying they felt this is "a great idea." NWPCA proposed the rule to WSDOT after their own organization agreed to do so. Additionally, the proposal was sent to over five hundred certified PEVOs in Washington state.
(c) A list of industries that will be required to comply with the rule. However, this subsection (2)(c) shall not be construed to preclude application of the rule to any business of [or] industry to which it would otherwise apply, and: Certified PEVOs working as a business (for hire company) in the state of Washington. There are approximately five hundred twenty-eight certified PEVO's in Washington state.
(d) An estimate of the number of jobs that will be created or lost as the result of compliance with the proposed rule: No estimated changes to the current workforce associated to this industry.
3. To obtain information for purposes of this section, an agency may survey a representative sample of affected businesses or trade associations and should, whenever possible, appoint a committee under RCW 34.05.310(2) to assist in the accurate assessment of the costs of a proposed rule, and the means to reduce the costs imposed on small business: PEVO survey was conducted through NWPCA to determine the additional costs associated with the proposed rule. Additionally, insurance brokers who connect this industry with the type of coverage necessary were contacted and queried on the potential costs associated to the proposed rule change.
WSDOT has PEVO certification reciprocity with Arizona, Colorado, Georgia, Minnesota, North Carolina, Oklahoma, Utah, and Virginia.
Additionally, pilot/escort certification is required in Arizona, Colorado, Florida, Georgia, Kansas, New York, North Carolina, Oklahoma, Pennsylvania, Virginia, Washington, and Utah. With the exception of New York, the Washington state certification is accepted in all states that require certification. Many other states do not require certification, but do require that PEVOs have insurance to operate in their state. States that currently require insurance are Colorado, Illinois, Iowa, Louisiana, New Mexico, Oklahoma, Pennsylvania, Utah, and Virginia.
The need for Insurance for pilot/escort vehicle operation is listed in the Federal Highway Administration's "Pilot/Escort Vehicle Operators Best Practices Guidelines." The Best Practices Guidelines states, "Risk is a probability of an event and is mitigated by maintaining insurance policies, carrying spare parts, and other acts of being prepared for emergencies." April 19, 2018 Kara Larsen, Director Risk Management
and Legal Services
AMENDATORY SECTION (Amending WSR 17-11-001, filed 5/3/17, effective 6/3/17)
WAC 468-38-100 Pilot/escort vehicle and operator requirements.
(1) A certified pilot/escort operator, acting as a warning necessary to provide safety to the traveling public, must accompany an extra-legal load when:
(a) The vehicle(s) or load exceeds eleven feet in width: Two pilot/escort vehicles are required on two lane highways, one in front and one at the rear.
(b) The vehicle(s) or load exceeds fourteen feet in width: One escort vehicle is required at the rear on multilane highways.
(c) The vehicle(s) or load exceeds twenty feet in width: Two pilot/escort vehicles are required on multilane undivided highways, one in front and one at the rear.
(d) The trailer length, including load, of a tractor/trailer combination exceeds one hundred five feet, or when the rear overhang of a load measured from the center of the rear axle exceeds one-third of the trailer length including load of a tractor/trailer or truck/trailer combination: One pilot/escort vehicle is required at the rear on two-lane highways.
(e) The trailer length, including load, of a tractor/trailer combination exceeds one hundred twenty-five feet: One pilot/escort vehicle is required at the rear on multilane highways.
(f) The front overhang of a load measured from the center of the front steer axle exceeds twenty feet: One pilot/escort vehicle is required at the front on all two-lane highways.
(g) The rear overhang of a load on a single unit vehicle, measured from the center of the rear axle, exceeds twenty feet: One pilot/escort vehicle is required at the rear on two-lane highways.
(h) The height of the vehicle(s) or load exceeds fourteen feet six inches: One pilot/escort vehicle with height measuring device (pole) is required at the front of the movement on all highways.
(i) The vehicle(s) or load exceeds twelve feet in width on a multilane highway and has a height that requires a front pilot/escort vehicle: One rear pilot/escort vehicle is required.
(j) The operator, using rearview mirrors, cannot see two hundred feet to the rear of the vehicle or vehicle combination when measured from either side of the edge of the load or last vehicle in the combination, whichever is larger: One pilot/escort vehicle is required at the rear on all highways.
(k) In the opinion of the department, a pilot/escort vehicle(s) is necessary to protect the traveling public. Assignments of this nature must be authorized through the department's administrator for commercial vehicle services.
(2) Can a pilot/escort vehicle be temporarily reassigned a position relative to the load during a move? When road conditions dictate that the use of the pilot/escort vehicle in another position would be more effective, the pilot/escort vehicle may be temporarily reassigned. For example: A pilot/escort vehicle is assigned to the rear of an overlength load on a two-lane highway. The load is about to enter a highway segment that has curves significant enough to cause the vehicle and/or load to encroach on the oncoming lane of traffic. The pilot/escort vehicle may be temporarily reassigned to the front to warn oncoming traffic.
(3) Can a certified flag person ever substitute for a pilot/escort vehicle? In subsection (1)(d) and (e) of this section, the special permit may authorize a riding flag person, in lieu of a pilot/escort vehicle, to provide adequate traffic control for the configuration. The flag person is not required to ride in the pilot/escort vehicle but may ride in the transport vehicle with transporter's authorization.
(4) Must an operator of a pilot/escort vehicle be certified to operate in the state of Washington? Yes. To help assure compliance with the rules of this chapter, consistent basic operating procedures are needed for pilot/escort vehicle operators to properly interact with the escorted vehicle and the surrounding traffic. Operators of pilot/escort vehicles, therefore, must be certified as having received department-approved base level training as a pilot/escort vehicle operator and must comply with the following:
(a) A pilot/escort vehicle operator with a Washington state driver's license must have a valid Washington state pilot/escort vehicle operator certificate/card which must be on the operator's person while performing escort vehicle operator duties.
(b) A pilot/escort vehicle operator with a driver's license from a jurisdiction other than the state of Washington may acquire a Washington state escort vehicle operator certificate/card, or operate with a certification from another jurisdiction approved by the department, subject to the periodic review of the issuing jurisdiction's certification program. A current list of approved programs will be maintained by the department's commercial vehicle services office.
(c) A pilot/escort vehicle operator certification does not exempt a pilot/escort operator from complying with all state laws and requirements of the state in which she/he is traveling.
(d) Every applicant for a state of Washington pilot/escort operator certificate shall attend an eight-hour classroom training course offered and presented by a business, organization, government entity, or individual approved by the department. At the conclusion of the course, the applicant will be eligible to receive the certification card after successfully completing a written test with at least an eighty percent passing score. State of Washington pilot/escort vehicle operator certification cards must be renewed every three years.
(5) What are the pretrip procedures that must be followed by the operator of a pilot/escort vehicle?
(a) Discuss with the operator of the extra-legal vehicle the aspects of the move including, but not limited to, the vehicle configuration, the route, and the responsibilities that will be assigned or shared.
(b) Prerun the route, if necessary, to verify acceptable clearances.
(c) Review the special permit conditions with the operator of the extra-legal vehicle. When the permit is a single trip extra-legal permit, displaying routing information, the pilot/escort operator(s) must have a copy of the permit, including all special conditions and attachments.
(d) Determine proper position of required pilot/escort vehicles and set procedures to be used among the operators.
(e) Check mandatory equipment, provided in subsections (9) and (10) of this section. Each operator is responsible for his or her own vehicle.
(f) Check two-way communication system to ensure clear communications between the pilot/escort vehicle(s) and the transport vehicle and predetermine the channel to be used.
(g) Acknowledge that nonemergency electronic communication is prohibited except communication between pilot/escort operator(s) and the transport vehicle during movement.
(h) Adjust mirrors, mount signs and turn on lights, provided in subsections (8)(e) and (9)(a) and (b) of this section.
(6) What are the responsibilities of the operator of a pilot/escort vehicle when assigned to be in front of the extra-legal movement? The operator shall:
(a) Provide general warning to oncoming traffic of the presence of the permitted vehicle by use of signs and lights, provided in subsection (9) of this section;
(b) Notify the operator of the extra-legal vehicle, and the operator(s) of any trailing pilot/escort vehicle(s), about any condition that could affect either the safe movement of the extra-legal vehicle or the safety of the traveling public, in sufficient time for the operator of the extra-legal vehicle to take corrective action. Conditions requiring communication include, but are not limited to, road-surface hazards; overhead clearances; obstructions; traffic congestion; pedestrians; etc.;
(c) Provide guidance to the extra-legal vehicle through lane changes, egress from one designated route and access to the next designated route on the approved route itinerary, and around any obstacle;
(d) In the event of traffic buildup behind the extra-legal vehicle, locate a safe place adjacent to the highway where the extra-legal vehicle can make a temporary stop. Notify the operator of the extra-legal vehicle, and the operator(s) of any trailing pilot/escort vehicle(s), in sufficient time for the extra-legal vehicle to move out of the traffic flow into the safe place, allowing the following traffic to pass safely;
(e) In accordance with training, be far enough in front of the extra-legal vehicle to allow time for the extra-legal vehicle to stop or take corrective action as necessary when notified by the front pilot/escort operator. Be far enough in front of the extra-legal vehicle to signal oncoming traffic to stop in a safe and timely manner before entering any narrow structure or otherwise restricted highway where an extra-legal vehicle has entered and must clear before oncoming traffic can enter;
(f) In accordance with training, do not be any farther ahead of the extra-legal vehicle than is reasonably prudent, considering speed of the extra-legal vehicle, other traffic, and highway conditions. Do not exceed a distance between pilot/escort vehicle and extra-legal vehicle that would interfere with maintaining clear two-way radio communication; and
(g) Assist in guidance to a safe place, and/or traffic control, in instances when the extra-legal vehicle becomes disabled.
(7) What are the responsibilities of the operator of a pilot/escort vehicle when assigned to be at the rear of the extra-legal movement? The operator shall:
(a) Provide general warning to traffic approaching from the rear of the extra-legal vehicle ahead by use of signs and lights, provided in subsection (9) of this section;
(b) Notify the operator of the extra-legal vehicle, and the operator(s) of any leading pilot/escort vehicle(s), about any condition that could affect either the safe movement of the extra-legal vehicle or the safety of the traveling public, in sufficient time for the operator of the extra-legal vehicle to take corrective action. Conditions requiring communication include, but are not limited to, objects coming loose from the extra-legal vehicle; flat tires on the extra-legal vehicle; rapidly approaching traffic or vehicles attempting to pass the extra-legal vehicle; etc.;
(c) Notify the operator of the extra-legal vehicle, and/or the operator of the lead pilot/escort vehicle, about traffic buildup or other delays to normal traffic flow resulting from the extra-legal move;
(d) In the event of traffic buildup behind the extra-legal vehicle, notify the operator of the extra-legal vehicle, and the operator(s) of any pilot/escort vehicle(s) in the lead, and assist the extra-legal vehicle in its move out of the traffic flow into the safe place, allowing the following traffic to pass safely;
(e) In accordance with training, be far enough behind the extra-legal vehicle to provide visual warning to approaching traffic to slow or stop in a timely manner, depending upon the action to be taken by the extra-legal vehicle, or the condition of the highway segment (i.e., limited sight distance, mountainous terrain, narrow corridor, etc.);
(f) Do not follow more closely than is reasonably prudent, considering the speed of the extra-legal vehicle, other traffic, and highway conditions. Do not exceed one-half mile distance between the pilot/escort vehicle and the extra-legal vehicle in order to maintain radio communication, except when necessary to safely travel a long narrow section of highway; and
(g) Pilot/escort operators shall not perform tillerman duties while performing escorting duties. For this section, tillerman refers to an individual that operates the steering of the trailer or trailing unit of the transport vehicle; and
(h) Assist in guidance to a safe place, and/or traffic control, in instances when the extra-legal vehicle becomes disabled.
(8) What kind of vehicle can be used as a pilot/escort vehicle? In addition to being in safe and reliable operating condition, the vehicle shall:
(a) Be either a single unit passenger car, including passenger van, or a two-axle truck, including a nonplacarded service truck;
(b) Not exceed a maximum gross vehicle weight or gross weight rating of sixteen thousand pounds;
(c) Have a body width of at least sixty inches but no greater than one hundred two inches;
(e) Be equipped with outside rear-view mirrors, located on each side of the vehicle((.)); and
(f) Not tow a trailer while escorting.
(9) In addition to equipment required by traffic law, what additional equipment is required on the vehicle when operating as a pilot/escort, and when is it used?
(a) A minimum of one flashing or rotating amber (yellow) light or strobe, positioned above the roof line, visible from a minimum of five hundred feet to approaching traffic from the front or rear of the vehicle and visible a full three hundred sixty degrees around the pilot/escort vehicle. Light bars, with appropriately colored lights, meeting the visibility minimums are acceptable. Lights must only be activated while escorting an extra-legal vehicle, or when used as traffic warning devices while stopped at the side of the road taking height measurements during the prerunning of a planned route. The vehicle's headlights must also be activated while escorting an extra-legal vehicle.
(b) A sign reading "OVERSIZE LOAD," measuring at least five feet wide, ten inches high with black lettering at least eight inches high in a one-inch brush stroke on yellow background. The sign shall be mounted over the roof of the vehicle and shall be displayed only while performing as the pilot/escort of an extra-legal load. When the vehicle is not performing as a pilot/escort, the sign must be removed, retracted or otherwise covered.
(c) A two-way radio communications system capable of providing reliable two-way voice communications, at all times, between the operators of the pilot/escort vehicle(s) and the extra-legal vehicle(s).
(d) Nonemergency electronic communications is prohibited except communication between the pilot/escort vehicle(s) and the transport vehicle during movement.
(10) What additional or specialized equipment must be carried in a pilot/escort vehicle?
(a) A standard eighteen-inch STOP AND SLOW paddle sign.
(b) Three bi-directional emergency reflective triangles.
(c) A minimum of one five-pound B, C fire extinguisher, or equivalent.
(d) A high visibility safety garment designed according to Class 2 specifications in ANSI/ISEA 107-1999, American National Standard for High Visibility Safety Apparel, to be worn when performing pilot/escort duties outside of the vehicle. The acceptable high visibility colors are fluorescent yellow-green, fluorescent orange-red or fluorescent red.
(e) A highly visible colored hard hat, also to be worn when performing pilot/escort duties outside of the vehicle, per WAC 296-155-305.
(f) A height-measuring device (pole), which is nonconductive and nondestructive to overhead clearances, when required by the terms of the special permit. The upper portion of a height pole shall be constructed of flexible material to prevent damage to wires, lights, and other overhead objects or structures. The pole may be carried outside of the vehicle when not in use. See also subsection (14) of this section.
(g) First-aid supplies as prescribed in WAC 296-800-15020.
(h) A flashlight in good working order with red nose cone. Additional batteries should also be on hand.
(11) Can the pilot/escort vehicle carry passengers? A pilot/escort vehicle may not contain passengers, human or animal, except that:
(a) A certified individual in training status or necessary flag person may be in the vehicle with the approval of the pilot/escort operator.
(b) A service animal may travel in the pilot/escort vehicle but must be located somewhere other than front seat of vehicle.
(12) Can the pilot/escort vehicle carry any other items, equipment, or load? Yes, as long as the items, equipment or load have been properly secured; provided that, no equipment or load may be carried in or on the pilot/escort vehicle that:
(a) Exceeds the height, length, or width of the pilot/escort vehicle, or overhangs the vehicle, or otherwise impairs its immediate recognition as a pilot/escort vehicle by the traveling public;
(b) Obstructs the view of the flashing or rotating amber lights, or "OVERSIZE LOAD" sign on the vehicle;
(c) Causes safety risks; or
(d) Otherwise impairs the performance by the operator or the pilot/escort vehicle of the duties required by these rules.
(13) Can a pilot/escort vehicle escort more than one extra-legal load at the same time? No, unless the department determines there are special circumstances that have resulted in an express authorization on the special permit.
(14) When and how must a pilot/escort vehicle use a height-measuring device? The height-measuring device (pole) must be used when escorting an extra-legal load in excess of fourteen feet six inches high, unless an alternative authorization has been granted by the department and stated on the special permit. The height pole must extend between three and six inches above the maximum height of the extra-legal vehicle, or load, to compensate for the affect of wind and motion. The height measuring device (pole) shall be mounted on the front of the lead pilot/escort vehicle. When not in the act of escorting an extra-legal height move, or prerunning a route to determine height acceptance, the height pole shall be removed, tied down or otherwise reduced to legal height.
(15) Do the rules change when a uniformed off-duty law enforcement officer, using official police car or motorcycle, performs the escorting function? While the spirit of the rules remains the same, specific rules may be modified to fit the situation.
(16) Are certified pilot/escort vehicle operators required to have commercial auto insurance? Yes, for hire certified pilot/escort vehicle operators are required to have insurance to conduct the duties associated to this rule:
(a) One hundred thousand dollars for bodily injury to or death of one person in any one accident;
(b) Three hundred thousand dollars for bodily injury to or death of two or more persons in any one accident; and
(c) Fifty thousand dollars for damage to or destruction of property of others in any one accident.
Satisfactory evidence of the insurance shall be carried at all times by the operator of the pilot vehicle, which evidence shall be displayed upon request by a law enforcement officer.
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