WSR 00-21-101

PROPOSED RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[ Filed October 18, 2000, 10:25 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 00-14-073.

Title of Rule: WAC 296-155-205 Head protection, 296-155-305 Signaling. Flaggers, and 296-155-625 Site clearing.

Purpose: State-initiated amendments are proposed to comply with the requirements of chapter 239, Laws of 2000 (ESHB 2647), which directed the department to "adopt permanent rules that take effect no later than March 1, 2001, revising any safety standards governing flaggers." According to the statute, the permanent rules must be designed to:

"Improve options available to ensure the safety of flaggers"; and
"Ensure that flaggers have adequate visual warning of objects approaching from behind them."
Listed below are the specific department proposed amendments that satisfy the requirements of chapter 239, Laws of 2000. All proposed amendments have been written to comply with the clarity criteria of Executive Order 97-02.


AMENDED SECTIONS:


WAC 296-155-205 Head protection.

Rewrote subdivision (a) according to clear rule writing principles.
Added subdivision (b) requiring that flaggers working with asphalt paving operations must comply with WAC 296-155-305 requirements.

WAC 296-155-305 Signaling. Flaggers.

Retitled the section for clarity.
Rewrote the section according to clear rule writing principles.

WAC 296-155-305(1)

> Added new subdivision with updated references to the Federal Highway Administration's Manual on Uniform Traffic Control Devices (MUTCD).
> Added the requirement that a qualified person must be used to set up traffic control devices, signs and barricades.
> Added the requirement that traffic control devices, signs and barricades must be used according to the guidelines and recommendations in the MUTCD.
> Added locations and addresses where interested parties can either purchase or read copies of the MUTCD.

WAC 296-155-305(2)

> Added new subdivision (b) to clarify when flaggers are to be used [in a] traffic work zone.

WAC 296-155-305(3)

> Added requirement that a flagger's signaling directions must conform to the guidelines and recommendations of the MUTCD.
> Updated and corrected references to the MUTCD and the Washington State Department of Transportation (WSDOT) pamphlet "Washington State Modifications to the MUTCD."

WAC 296-155-305(4)

> Rewrote flagger hand signaling and paddle requirements to more clearly and accurately reflect MUTCD requirements.
> Updated MUTCD reference.
> Replaced outdated reference to the "transportation commission" with the correct reference to WSDOT.

WAC 296-155-305(5)

> Reorganized the subsection to clearly distinguish the minimum requirements for flagger safety garments and hard hats worn during "daylight hours," "hours of darkness" and "inclement weather."
> Added ANSI/ISEA 107-1999 Class 2 specifications as the minimum requirement for high visibility safety garments worn by flaggers during daylight hours. Identifies acceptable colors for high visibility safety garments worn during daylight hours to be fluorescent yellow-orange, fluorescent orange-red or fluorescent red. Identifies acceptable high visibility colors for hard hats worn during daylight hours to be white, yellow, yellow-green, orange or red.
> Added specific coverall/trouser design and color requirements for flaggers working during hours of darkness. Also, added the requirement that a flagger working during hours of darkness must wear a high visibility hard hat "marked with at least twelve square inches of retroreflective material providing 360 degrees of visibility."
> Added high visibility safety garment requirements for flaggers working in inclement weather.
> Added information telling interested parties where they can purchase or read a copy of ANSI/ISEA 107-1999.

WAC 296-155-305(6)

> Updated MUTCD reference and WSDOT pamphlet reference.
> Added language clarifying that emergency assignments mentioned in subdivision (c) are temporary and last only until a qualified person can assume the position.

WAC 296-155-305(7)

> Added a specific reference to the Washington traffic control flagger card.
> Add language recognizing flagger certification reciprocity agreements between Washington and other states.
> Added language clarifying that the flagger certification card must verify the holder's completion of flagger training and contain the card's expiration date.

WAC 296-155-305(8)

> Added new subsection to comply with chapter 239, Laws of 2000 that requires "employers, responsible contractors and/or project owners" to use a performance-based approach when developing and using methods to provide flaggers with adequate warning of equipment approaching from behind.
> Added some nonmandatory examples of methods that can be used to adequately warn flaggers of equipment approaching from behind.
> Added language clarifying the department's position that neither training nor standard backup alarms, which are already required on construction equipment, are sufficient methods of complying with WAC 296-155-305 and the intent of chapter 239, Laws of 2000.

WAC 296-155-305(9)

> Added a new subsection requiring "employers, responsible contractors and/or project owners" to:
Conduct flagger orientations on the job site, specifying the minimum content of the orientation and the conditions under which it must be conducted.
Keep a current site-specific traffic control plan on-site at jobs where flaggers are used that last more than one day on roadways allowing speeds of forty-five mph or more. The subsection also specifies the purpose of the traffic control plan and its minimum content.

WAC 296-155-305(10)

> Added new subsection that specifies the advance warning sign sequences required for flagger operations.

WAC 296-155-305(11)

> Added new subsection requiring "employers, responsible contractors and/or project owners" to take several specific actions to ensure flagger safety. For example, floodlights must illuminate flagger workstations during hours of darkness.

WAC 296-155-625 Site clearing.

Rewrote subdivision (1)(d) according to clear rule-writing principles.
Added the requirement that flaggers and flagger activities at site clearing operations must comply with WAC 296-155-305 requirements.

Statutory Authority for Adoption: RCW 49.17.010, [49.17].040, and [49.17].050; chapter 239, Laws of 2000 (ESHB 2647) and chapter 34.05 RCW.

Statute Being Implemented: Chapter 49.17 RCW.

Summary: See Purpose above.

Reasons Supporting Proposal: See Purpose above.

Name of Agency Personnel Responsible for Drafting: Tracy Spencer, Tumwater, (360) 902-5530; Implementation and Enforcement: Michael A. Silverstein, Tumwater, (360) 902-5495.

Name of Proponent: Department of Labor and Industries, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: See Purpose above.

Proposal Changes the Following Existing Rules: See Purpose above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. From "Discussion of Economic Impact" dated September 20, 2000, and prepared by Greg Nothstein, Legislative Economist, Legislative and Government Affairs Office, Department of Labor and Industries: New rules and rule amendments must meet the requirements of the Regulatory Fairness Act (RFA), chapter 19.85 RCW and the Administrative Procedure Act (APA), chapter 34.05 RCW. One of the requirements of the RFA is that the economic impact of proposed regulations on small businesses be examined relative to their impact on large businesses. The agency must prepare a small business economic impact statement (SBEIS) when a proposed rule, or rule amendments, have the potential of placing a more than minor economic impact on business. A related requirement in the APA demands an evaluation of the probable costs and benefits of a proposed regulation and that it be shown that these probable benefits exceed the probable costs: Process referred to as a cost-benefit analysis (CBA). A number of criteria and exemptions were established for both the SBEIS analysis and the CBA analysis. One key criteria (RCW 34.05.328 (5)(b)(v)) are that "explicitly and specifically dictated by statute" are not subject to the SBEIS and CBA requirements. Because the proposed rule adopts into rule requirements specified in ESHB 2647 it is my conclusion that neither a SBEIS nor a CBA are required.

A copy of the statement may be obtained by writing to Greg Nothstein, Economic Analyst, Department of Labor and Industries, P.O. Box 44001, Olympia, WA 98504-4001, phone (360) 902-6805, fax (360) 902-4202.

RCW 34.05.328 does not apply to this rule adoption. Although the proposed amendments are considered "significant legislative rules" under RCW 34.05.328, the requirements of that section do not apply because the content of the proposed amendments is "explicitly and specifically dictated by statute," see RCW 34.05.328 (5)(b)(v).

Hearing Location: Department of Labor and Industries Building, Auditorium, 7273 Linderson Way S.W., Tumwater, WA, on November 27, 2000, at 1:30 p.m.; and at Cavanaughs Inn at the Park, Skyline Room, 303 West North River Drive, Spokane, WA, on November 29, 2000, at 1:30 p.m.

Assistance for Persons with Disabilities: Contact Christine Swanson by November 15, 2000, at (360) 902-5484.

Submit Written Comments to: Tracy Spencer, Standards Manager, WISHA Services Division, P.O. Box 44620, Olympia, WA 98507-4620, by 5:00 p.m. on December 6, 2000. In addition, the department will accept comments submitted by fax to (360) 902-5529; or electronically to George Huffman, Project Manager, WISHA Standards Section, hufh235@lni.wa.gov. Comments submitted by fax must be ten pages or less.

Date of Intended Adoption: January 26, 2001.

October 18, 2000

Gary Moore

Director

OTS-4349.1


AMENDATORY SECTION(Amending Order 91-01, filed 5/20/91, effective 6/20/91)

WAC 296-155-205
Head protection.

(1) All employees on any construction site shall be provided an individual hard hat which meets all requirements of (a) and (b) of this subsection. Employers shall provide individual hard hats at no cost to the employees.

(a) Hard hats for the protection of employees against impact and/or penetration of falling and flying objects shall meet the specifications contained in American National Standards Institute, Z89.1-1969, Safety Requirements for Industrial Head Protection.

(b) Hard hats for the head protection of employees exposed to high voltage electrical shock and burns shall meet the specifications contained in American National Standards Institute, Z89.2-1971.

(2) All employees must have their individual hard hats on site and readily available at all times.

(3) All employees shall wear a hard hat on any construction site whenever there is a potential exposure to danger of flying or falling objects to persons working or occupying the area.


Note: The hard hat may be removed whenever there is no potential exposure to a hazard.


(4)(a) Employees working on asphalt paving crews ((when they are)) exposed to extreme temperatures from hot mix and ((when they are)) not exposed to falling objects ((need)) do not have to wear protective hard hats. ((Flaggers working in conjunction with asphalt paving operations shall wear protective hard hats.))

(b) Flaggers working with asphalt paving operations must comply with the requirements of WAC 296-155-305.

(5) Caps with metal buttons or metal visors shall not be worn around electrical hazards.

(6) Employees working near moving machinery or in locations which present a hair-catching or fire hazard shall wear caps, nets or other head and face protection that will completely contain the hair.

[Statutory Authority: Chapter 49.17 RCW. 91-11-070 (Order 91-01), 296-155-205, filed 5/20/91, effective 6/20/91; 89-11-035 (Order 89-03), 296-155-205, filed 5/15/89, effective 6/30/89. Statutory Authority: RCW 49.17.040 and 49.17.050. 86-03-074 (Order 86-14), 296-155-205, filed 1/21/86; Order 74-26, 296-155-205, filed 5/7/74, effective 6/6/74.]


AMENDATORY SECTION(Amending Order 93-04, filed 9/22/93, effective 11/1/93)

WAC 296-155-305
Signaling and flaggers.

((Flaggers.

(1) When operations are such that signs, signals, and barricades do not provide the necessary protection on or adjacent to a highway or street, flaggers or other appropriate traffic controls shall be provided.

(2) Signaling directions by flaggers shall conform to American National Standards Institute D6.1-1988, Manual on Uniform Traffic Control Devices for Streets and Highways, as amended by the Washington state department of transportation. (M24-01 (HT).)

(3) Hand signaling by flaggers shall be by use of sign paddles at least 18 inches in diameter with series "C" letters at least 6 inches high or lights approved by the transportation commission. When hand signaling is done in periods of darkness, the sign paddles must be reflectorized or illuminated as required by ANSI D6.1-1988, Manual on Uniform Traffic Control Devices. The "STOP" side of the paddle shall have a red background with white lettering. When a paddle has a "SLOW" side, the background shall be orange and the lettering black. Colors shall conform to ANSI D6.1 current edition.

(4) Flaggers shall wear an orange warning garment and a yellow protective helmet while flagging. Warning garments worn at night shall be of reflectorized material. Yellow is specified as the color of helmets; the issue is clearly one of high visibility. Other colors providing equal visibility than the specified yellow will be acceptable. The iridescent or reflectorized hard hats, available in several colors, which provide "high visibility" in both day and night applications, will meet standard specifications.

(5) Each flagger shall be trained every three years in accordance with the American National Standards Institute (ANSI) D6.1-1988 Manual on Uniform Traffic Control Devices as amended by the Washington state department of transportation (M 24-01 (HT)).

Note: Personnel that have not completed a flagging course may be assigned duties as flaggers only during emergencies when a sudden, generally unexpected, set of circumstances demands immediate attention.



(6) Each flagger shall have in their possession a valid certificate which verifies completion of the training prescribed in subsection (5) of this section. Each certificate shall contain the date the card expires.
)) (1) Except as otherwise required in these rules, traffic control devices, signs and barricades must be set up by a qualified person (a qualified person is someone trained in and familiar with the provisions of Part VI of the MUTCD) and used according to the guidelines and recommendations in the Federal Highway Administration's:

Manual on Uniform Traffic Control Devices (MUTCD), 1988 Edition-Revision 3, Part VI, Standards and Guides for Traffic Controls for Street and Highway Construction, Maintenance, Utility, and Incident Management Operations.

Note:

You may purchase copies of the MUTCD by writing:


U.S. Government Printing Office

Superintendent of Documents

Mail Stop: SSOP,

Washington D.C. 20402-9328


You may read a copy of the MUTCD at any department of labor and industries (L&I) service location.

(2)(a) Flaggers or other appropriate traffic controls must be used when signs, signals, and barricades do not provide necessary protection from traffic at operations on or adjacent to a highway or street.

(b) Flaggers are to be used only when other reasonable traffic control methods will not adequately control traffic in the work zone.

(3) Flagger signaling directions must conform to the guidelines and recommendations of MUTCD, 1988 Edition-Revision 3, Part VI, as amended by the Washington state department of transportation (WSDOT) pamphlet, "Washington State Modifications to the MUTCD." (M 24-01)

(4)(a) Flagger hand signaling must be either sign paddles or lights approved by WSDOT.

(b) When sign paddles are used, they must comply with the requirements of MUTCD, 1988 Edition-Revision 3, Part VI. Specifically, sign paddles:

Must be at least 18 inches in diameter;

Printed with letters at least 6 inches high;

The "STOP" side of the paddle must have a red background with white lettering; and

The "SLOW" side of the paddle must have an orange background with black lettering.

(c) When hand signaling is used during periods of darkness, sign paddles must be retroreflectorized or illuminated in the same manner as signs.

(5)(a) While flagging during daylight hours, a flagger must, at a minimum, wear:

A high visibility safety garment designed according to Class 2 specifications in ANSI/ISEA 107-1999, American National Standard for High-Visibility Safety Apparel. Specifically, a garment containing at least 775 square inches of background material and 201 square inches of retroreflective material. The acceptable high visibility colors are fluorescent yellow-orange, fluorescent orange-red or fluorescent red; and

A high visibility hard hat. The acceptable high visibility colors are white, yellow, yellow-green, orange or red.

(b) While flagging during hours of darkness, a flagger must at least wear:

A high visibility safety garment designed according to Class 2 specifications in ANSI/ISEA 107-1999 over white coveralls, or other coveralls or trousers designed according to ANSI/ISEA 107-1999 standards; and

A high visibility hard hat that is marked with at least 12 square inches of retroreflective material providing 360 degrees of visibility.

(c) During inclement weather, white rain gear or rain gear designed according to ANSI/ISEA 107-1999 may be substituted for white coveralls.

Note:

You may purchase copies of ANSI/ISEA 107-1999 by writing:


American National Standards Institute

11 West 42nd Street

New York, NY 10036


or


Contacting the ANSI web site at:

http://web.ansi.org/

You may read a copy of ANSI/ISEA 107-1999 at any Washington state library.

(6)(a) Each flagger must be trained every three years.

(b) Flagger training must be based upon the Manual on Uniform Traffic Control Devices-1988 as amended by the Washington state department of transportation pamphlet, "Washington State Modifications to the MUTCD." (M 24-01)

(c) Personnel that have not completed a flagger-training course may be assigned duties as flaggers only during emergencies when a sudden, generally unexpected, set of circumstances demands immediate attention. Such emergency assignments are temporary and last only until a qualified person can be put into the position.

(7)(a) Each flagger must have in their possession either a valid Washington traffic control flagger card or a valid flagger card from a state, such as Oregon, Idaho or Montana, having flagger training reciprocity with Washington.

(b) The flagger card must show:

Verification that the flagger training prescribed in subsection (6) of this section is completed; and

The card's expiration date.

(8) The employer, responsible contractor and/or project owner must develop and use a method to ensure that whenever there is any potential hazard associated with construction equipment, flaggers have adequate warning of such equipment approaching from behind the flagger.

Note: The following are some nonmandatory examples of methods that may be used to adequately warn flaggers:

Mount a mirror on the flagger's hard hat.

Use a motion detector with an audible warning.

Use a spotter.

Regardless of the method chosen, employees must be trained. However, training alone is not a sufficient method for complying with this rule. Also, standard backup alarms are already required on construction equipment and, therefore, are not a sufficient method for complying with this rule.

(9)(a) The employer, responsible contractor and/or project owner must conduct an orientation that familiarizes the flagger with the job site each time the flagger is assigned to a new project or when job site conditions change significantly. The orientation must include, but is not limited to:

The flagger's role and location on the job site;

Motor vehicle and equipment in operation at the site;

Job site traffic patterns;

Communications and signals to be used between flaggers and equipment operators;

On-foot escape route; and

Other hazards specific to the job site.

(b) When flaggers are used on a job site on a roadway allowing speeds of 45 mph or more and the job will last more than one day, the employer, responsible contractor and/or project owner must keep on-site, a current site specific traffic control plan. The purpose of this plan is to help move traffic through or around the construction zone in a way that protects the safety of the traveling public, pedestrians and workers. The plan must include, but is not limited to, such items as:

Sign use and placement;

Application and removal of pavement markings;

Construction;

Scheduling;

Methods and devices for delineation and channelization;

Placement and maintenance of devices;

Placement of flaggers;

Roadway lighting;

Traffic regulations; and

Surveillance and inspection.

(10) For flagging operations a three (3) sign advance warning sequence is required, and a four (4) sign advance warning sequence is required on roadways with a 45 mph speed limit or higher.

(11) To protect flaggers, employers, responsible contractors and/or project owners must ensure that:

(a) Flagger workstations are illuminated during hours of darkness by floodlights. It is important to adequately illuminate the workstation without creating glare in the eyes of approaching drivers. The adequacy and proper placement of floodlights can best be determined by driving through and observing the workstation from each direction on the roadway.

(b) Warning signs reflect the actual condition of the work zone. When not in use, warning signs should either be taken down or covered.

(c) Flaggers are not assigned other duties while engaged in flagging activities.

(d) Flaggers do not use devices (e.g., cell phones, pagers, radio headphone, etc.,) that may distract the vision, hearing, or attention of the flagger. Devices such as two-way radios used for communications between flaggers to direct traffic or ensure flagger safety are acceptable.

(e) Flaggers receive appropriate breaks from flagging so they can remain attentive and alert.

[Statutory Authority: Chapter 49.17 RCW. 93-19-142 (Order 93-04), 296-155-305, filed 9/22/93, effective 11/1/93; 93-01-067 (Order 92-15), 296-155-305, filed 12/11/92, effective 1/15/93; 89-11-035 (Order 89-03), 296-155-305, filed 5/15/89, effective 6/30/89. Statutory Authority: RCW 49.17.040 and 49.17.050. 86-03-074 (Order 86-14), 296-155-305, filed 1/21/86; Order 76-6, 296-155-305, filed 3/1/76; Order 74-26, 296-155-305, filed 5/7/74, effective 6/6/74.]


AMENDATORY SECTION(Amending Order 94-07, filed 7/20/94, effective 9/20/94)

WAC 296-155-625
Site clearing.

(1) General.

(a) The word "clearing" means the removal of trees, stumps, logs, brush, debris and rubbish from the surface of the ground in preparation of a site for construction work of any kind. The removal of trees and logs shall be in accordance with the requirements of chapter 296-54 WAC.

(b) All equipment and tools such as axes, sledges, wedges, saws, springboards, etc., shall be maintained in a safe condition and guarded with standard safeguards.

(c) Fallers shall give warning to brushing crews, buckers and other persons in the vicinity where a tree is being felled; taking notice that such persons are not only out of the reach of tree, but also out of danger of possible sidewinders, snags or other trees which may be knocked over by the tree being felled.

(d) ((No)) Trees ((shall)) must not be felled toward and within range of a traveled road or operational railroad ((in use,)) unless a flagger is ((placed on such road or railroad)) used to ((warn)) stop all approaching persons ((or to stop)), vehicles, or railroad equipment. Flaggers and flagging activities at the site must comply with the requirements of WAC 296-155-305.

(e) Clearing crews shall not be placed immediately below other crews working on hillsides where there is a possible danger of skidding or rolling trees, moving earth or rock.

(f) Pioneer roads on clearing operations shall be constructed to safely accommodate all equipment moved over road.

(g) Hazardous standing and down timber, rocks, etc., shall be moved from upper sides of cuts on side hill operations.

(h) Care shall be exercised in the use of oil for burning brush or timber.

(i) Employees engaged in site clearing shall be protected from hazards of irritant and toxic plants and suitably instructed in the first-aid treatment available.

(j) All equipment used in site clearing operations shall be equipped with rollover guards meeting the requirements of this chapter. In addition, rider-operated equipment shall be equipped with an overhead and rear canopy guard meeting the following requirements:

(i) The overhead covering on this canopy structure shall be of not less than 1/8-inch steel plate or 1/4-inch woven wire mesh with openings no greater than 1 inch, or equivalent.

(ii) The opening in the rear of the canopy structure shall be covered with not less than 1/4-inch woven wire mesh with openings no greater than 1 inch.

(iii) Use of 1/2 inch thick plastic sheets or other thicknesses of plastic panels derived from polycarbonate, acrylic, cellulose acetate butyrate which provides equivalent or better protection against particular hazards involved is acceptable in lieu of 1 or 1 3/4 inch open mesh material.

(A) All panels shall be installed in a manner which can withstand the initial impact, and maintain the protective barrier integrity; and

(B) All panels must be labeled or marked to distinguish between acceptable and inferior materials.

(k) In addition to observance of the general safety and health standards;

(i) The employer shall assume the responsibility of work assignment so that no worker shall be required to work in a position or location so isolated as to not be within ordinary calling distance of another person who can render assistance in case of emergency. In any operation where cutting, felling trees, loading, or a combination of these duties is carried on, there shall be a minimum crew of two persons who shall work as a team and shall be in visual or voice contact with one another. If one worker at these operations is required to be left alone for a period of time, the worker shall be contacted by another person at reasonable intervals not to exceed fifteen minutes unless such practice can be established to be impractical.

(ii) This does not apply to operators of motor vehicles, watchpersons or certain other jobs which, by their nature, are singular worker assignments. However, a definite procedure for checking the welfare of all workers during working hours shall be instituted and all workers so advised.

[Statutory Authority: Chapter 49.17 RCW. 94-15-096 (Order 94-07), 296-155-625, filed 7/20/94, effective 9/20/94; 91-03-044 (Order 90-18), 296-155-625, filed 1/10/91, effective 2/12/91. Statutory Authority: RCW 49.17.040 and 49.17.050. 86-03-074 (Order 86-14), 296-155-625, filed 1/21/86; Order 74-26, 296-155-625, filed 5/7/74, effective 6/6/74.]

Washington State Code Reviser's Office