1 STATUTORY OR OTHER AUTHORITY: The Washington utilities and transportation commission takes this action under Notice No. WSR 05-24-120, filed with the code reviser on December 7, 2005. The commission brings this proceeding pursuant to RCW 80.01.040(4), 80.04.160, and 80.40.320.

     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 that this order is entered.

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

     5 In this docket, to avoid unnecessary duplication, the commission designates the discussion in this order as its concise explanatory statement, supplemented where not inconsistent by the staff memoranda presented at the adoption hearing and at the open meetings where the commission considered whether to begin a rule making and whether to propose adoption of specific language. Together, the documents provide a complete but concise explanation of the agency actions and its reasons for taking those actions.

     6 REFERENCE TO AFFECTED RULES: This order adopts the following sections of the Washington Administrative Code: WAC 480-62-400 Purpose, 480-62-405 Applications, 480-62-410 Funding for project categories, 480-62-415 Evaluation and award process, and 480-62-420 Grant documents, timelines and fund transfers.

     7 PREPROPOSAL STATEMENT OF INQUIRY AND ACTIONS THEREUNDER: The commission filed a preproposal statement of inquiry (CR-101) in August 19, 2005, at WSR 05-17-128. The statement advised interested persons that the commission was considering entering a rule making to consider processes to implement the grade crossing protective fund grant program.

     8 ADDITIONAL NOTICE AND ACTIVITY PURSUANT TO PREPROPOSAL STATEMENT: The commission also informed persons of the inquiry into this matter by providing notice of the subject and the CR-101 to all persons on the commission's list of persons requesting such information pursuant to RCW 34.05.320(3) and by sending a notice to all railroad companies operating in the state, and posting all information on the commission's web site.

     9 NOTICE OF PROPOSED RULE MAKING: The commission filed a notice of proposed rule making (CR-102) on December 7, 2005, at WSR 05-24-120. The commission scheduled this matter for oral comment and adoption under Notice No. WSR 05-24-120 at 9:30 a.m., Wednesday, January 25, 2006, in the Commission's Hearing Room, Second Floor, Chandler Plaza Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons the opportunity to submit written comments to the commission.

     10 COMMENTERS (WRITTEN COMMENTS): The commission received no written comments.

     11 RULE-MAKING HEARING: The rule proposal was considered for adoption, pursuant to the notice in WSR 05-24-120, at a rule-making hearing on Wednesday, January 25, 2006, before Chairman Mark H. Sidran, Commissioner Patrick J. Oshie, and Commissioner Philip B. Jones. The commission received no oral comments.

     12 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 05-24-120 with the following change:

•	WAC 480-62-405 (1)(b) is changed to read Trespass prevention and motorist safety projects.

     13 STATEMENT OF ACTION; STATEMENT OF EFFECTIVE DATE: After reviewing the entire record, the commission determines that WAC 480-62-400, 480-62-405, 480-62-410, 480-62-415, and 480-62-420 should be adopted to read as set forth in Appendix A, 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 0, Amended 0, Repealed 0.

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

     Number of Sections Adopted on the Agency's Own Initiative: New 5, 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.

     15 The commission adopts WAC 480-62-400, 480-62-405, 480-62-410, 480-62-415, and 480-62-420 to read as set forth in Appendix A, 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).

     16 This order and the rules 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 chapter 1-21 WAC.

     DATED at Olympia, Washington, this 3rd day of February, 2006.

Washington Utilities and Transportation Commission

Mark H. Sidran, Chairman

Patrick J. Oshie, Commissioner

Philip B. Jones, Commissioner

OTS-8510.3

PART 4: ((ADOPTION BY REFERENCE)) GRADE CROSSING PROTECTIVE FUND
NEW SECTION
WAC 480-62-400   Purpose.   (1) As authorized by chapter 81.53 RCW, this chapter prescribes the manner in which a public, private or nonprofit entity may apply to the commission for grants from the grade crossing protective fund, and to prescribe a program for the award of such grants.

     (2) Grade crossing protective fund grants are to fund projects that:

     (a) Reduce accident frequency and severity at either public and private railroad crossings; or

     (b) Reduce pedestrian, trespassing, and motorist injuries and deaths on railroad rights of way at places other than crossings.

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     (a) Grade crossing signals or other warning devices at public crossings. This category includes safety improvement projects at public crossings under RCW 81.53.261 and 81.53.295.

     (b) Trespass prevention and motorist safety projects. This category includes, but is not limited to, fencing or other physical barriers; warning devices; channeling devices; public information efforts; and enforcement-related activities.

     (c) Private crossing safety improvements. This category includes, but is not limited to, crossing closures or consolidations; signals or warning devices; nighttime and off-hours locked gates; and making existing warning devices more noticeable.

     (d) Miscellaneous safety projects. This category includes other projects within the scope of WAC 480-62-400(2) to foster creative and effective ideas and to address newly discovered problems. Such projects might include, but are not limited to, roadway improvements at or approaching grade crossings; mitigation of problems created by crossing closures; and removal of sight obstructions to signals or trains for the traveling public.

     (2) An applicant may at any time submit an application on a form provided by the commission for a grant to pay for costs of public grade crossing signals or other warning devices as described in subsection (1)(a) of this section. The commission will evaluate and act on such applications as they are received.

     (3) An applicant may at any time submit an application for a grant to pay for projects falling within the categories described in subsection (1)(b), (c), and (d) of this section. When funds are available for disbursement, the commission will issue a call for grant applications with a deadline by which applications must be submitted for competitive consideration. The commission will evaluate and act on all pending applications, deciding whether each application should be granted, in whole or in part; whether the application should be retained for further consideration if funds become available; or whether the application should be denied. Applications that have not been denied may remain active until the next ensuing call for grant applications is issued, not to exceed two years from the date of the application, or such shorter time as the commission may specify.

     (4) Applicants for projects described in subsection (1)(b), (c), and (d) of this section must submit grant applications on a form provided by the commission that requires applicants to provide the following information:

     (a) A detailed summary of the hazard to be addressed, including location, accident history, and the identities of the relevant railroad company and local agency (local government that has jurisdiction over the issue and/or territory involved);

     (b) A summary of the project and how its implementation will mitigate or eliminate the hazard;

     (c) Cost estimates;

     (d) An estimated timeline for project completion;

     (e) A description of how the project's success can be measured;

     (f) A summary of efforts to coordinate with the railroad and/or local government, and the results of those efforts;

     (g) A description of the applicant's experience, capacity, and competency to complete the project; and

     (h) Such other information as the commission may require.

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     (2) The commission will consider grant applications at regularly scheduled open meetings. Any interested person may speak at the open meeting regarding the grant applications.

     (a) The commission will award a grant for a project involving grade crossing signals or other warning devices at a public crossing if funds are available and the commission determines that the public safety requires the project. The commission will consider the severity of the hazard addressed by the project and the safety benefits expected to be achieved.

     (b) The commission will award grants to projects in other categories that, in the commission's judgment, will achieve the greatest gains in safety relative to their cost. The commission will consider the relative severity of the hazard being addressed in each application, the safety benefits expected to be achieved by the proposed projects, the costs of implementing each project, the likelihood that the applicant can complete the project, and whether the applicant coordinated with and sought approval from the relevant local agency and railroad. The commission may also consider geographic diversity. The commission may condition an award on an amendment of the application regarding the requested level of funding, the suggested time limit for completion of the grant project, and any other proposed term or condition.

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     (2) If it appears that an award recipient is not meeting the timelines specified in the application, commission order, or agreement, the commission may set specific project milestones and deadlines for meeting them. The commission may withdraw the award if the award recipient does not achieve a milestone on time.

     (3) When an award recipient completes a project, it must submit its request to the commission for disbursement of grant funds on a form provided by the commission.

     (4) The commission will verify that the project is complete and meets all terms and conditions of the application, order, and agreement. When the commission confirms that the project has been completed consistent with the application, order, and agreement, the commission will disburse grant funds to the award recipient.

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