EMERGENCY RULES
COMMISSION
1. This emergency rule-making proceeding addresses the safety of flaggers, and is designed to adopt rules to become effective when filed.
2. The Washington Utilities and Transportation Commission is conducting this rule making pursuant to RCW 80.01.040, 81.53.410, 81.53.420 and 34.05.350. This proceeding complies with the Open Public Meetings Act (chapter 42.30 RCW), the Administrative Procedure Act (chapter 34.05 RCW), the State Register Act (chapter 34.08 RCW), the State Environmental Policy Act (chapter 43.21C RCW), and the Regulatory Fairness Act (chapter 19.85 RCW).
The facts requiring emergency action are as follows:
3. Section 1, chapter 239, Laws of 2000 requires the commission, as well as the Washington State Department of Transportation and the Department of Labor and Industries, to adopt emergency rules to reduce dangers to flaggers. Accidents in which flaggers were struck from behind and killed provided the primary impetus for the requirement. The state law requires that rules be effective by June 1, 2000. In addition, rules must be adopted immediately because the construction season has begun. As weather improves, more flaggers will be exposed to the dangers giving rise to the need for additional rules. These emergency rules may remain in effect until permanent rules are adopted, or until March 1, 2001, whichever is sooner.
4. On April 25, 2000, the commission gave notice of the proposed emergency rule adoption to interested persons and provided the opportunity for comment. The commission received written comments from the Puget Sound and Pacific Railway Company, the Burlington Northern and Santa Fe Railway Company and the Union Pacific Railroad. As a result of those comments and of revisions suggested by the Department of Labor and Industries, the proposed rules were revised to incorporate new ideas and to clarify the scope and meaning of the rules. The revised proposed rules were mailed to interested parties on May 19, 2000, for further comment. The commission also provided notice of the proposed emergency rule adoption scheduled for May 24, 2000. No further comments were made by interested persons.
5. The Washington Utilities and Transportation Commission finds that an emergency exists. The commission finds that state law requires immediate adoption of a new rule involving railroad flaggers working on crossing construction, repair and maintenance projects. The proposed rules make existing rules more consistent with other agencies' rules, and provide additional requirements for work place safety.
6. The commission is currently reviewing general operation rules governing railroads under Docket No. TR-981102. During that rule-making process, the emergency rules will be reviewed to determine whether they should be made permanent in their current or altered form, and they will be reviewed for economic and environmental impacts.
7. In reviewing the entire record, the commission determines
that it should adopt WAC 480-62-235, as set forth in Appendix A,
as a rule of the Washington Utilities and Transportation
Commission, to be effective when filed.
9. THE COMMISSION ORDERS That this order and the rule set forth in Appendix A, after being first recorded in the order register of the Washington Utilities and Transportation Commission, be forwarded to the code reviser for filing pursuant to chapter 34.05 RCW and 1-21 WAC.
DATED at Olympia, Washington, this 24th day of May 2000
Washington Utilities and Transportation Commission
Marilyn Showalter, Chairwoman
Richard Hemstad, Commissioner
APPENDIX A(1) The rules in this section apply whenever a railroad engages in maintenance, repair, or construction of a grade crossing or overcrossing; however, they do not apply when flaggers are provided only because of a crossing signal malfunction, or only because of inspections or repairs to a crossing signal system. The latter circumstances are covered by 49 CFR Part 234. In that section, 49 CFR Part 234.5 recommends that railroads follow the requirements of Part VI of the Federal Highway Administration's Manual on Uniform Traffic Control Devices (MUTCD) to the extent possible. The Commission further recommends that railroads also abide by the following rules to the extent possible in situations covered by 49 CFR Part 234.
NOTE: Copies of the MUTCD may be obtained by writing to:
US Government Printing Office
Superintendent of Documents
Mail Stop: SSOP
Washington DC 20402-9328
Or
Copies may be reviewed at the branch of the Washington State Library located at the Commission Headquarters, 1300 S. Evergreen Park Drive S.W., Olympia, Washington.
(2) The rules in this section take precedence over the rules in WAC 480-62-020 and WAC 480-62-030 whenever there is a conflict with the rules in this section.
(3) Except as otherwise required in this section, traffic control devices, signs, barricades, and signaling methods must be set up and used according to the guidelines in American National Standards Institute D6.1, Manual on Uniform Traffic Control Devices, Part VI.
(4) Flaggers are to be used only when other reasonable means of control will not adequately control traffic in the work zone. It may be reasonable in some cases to close the road on which the crossing is located, but only if agreed to by the public authority responsible for the roadway.
(5)(a) While flagging during daylight hours, a flagger must wear:
A high visibility warning garment designed according to ANSI/ISEA 107-1999, American National Standard for High-Visibility Safety Apparel specifications; and
A high-visibility hard hat.
(b) While flagging at night, a flagger must wear:
A high-visibility warning garment designed according to ANSI/ISEA 107-1999 specifications over white coveralls or other coveralls or trousers designed according to ANSI/ISEA 107-1999;and
A high-visibility hard hat that is iridescent or marked with reflectorized material.
(c) During inclement weather, yellow rain gear may be substituted for white coveralls.
NOTE: Copies of ANSI/ISEA 107-1999 may be obtained by writing:
American National Standards Institute
11 West 42nd Street
New York, NY 10036
Or
By contacting the ANSI web site at http://web.ansi.org Or
Copies may be reviewed at the branch of the Washington State Library located at the Commission Headquarters, 1300 S. Evergreen Park Drive S.W., Olympia, Washington.
(6) The railroad must develop and use a method to ensure that flaggers have adequate warning of objects approaching from behind the flagger. The best method is for the railroad to ensure that the flagger is located where it is impossible for objects to approach the flagger from behind under all circumstances. If that is not possible, the following are examples of methods that may be used to adequately warn flaggers: Mounted mirror on hard hat;
Motion detector with audible warning;
Intrusion alarms; or
Spotter (placed at a safe distance from the flagger and out of the way of all possible traffic).
(7) The railroad must conduct an on-site safety briefing for flaggers each time a flagger reports for duty, and also when jobsite conditions change. The briefing must include applicable portions of the Traffic Control Plan and any changes applicable during the flagger's shift. If not covered in the Traffic Control Plan, the briefing must also include:
The flagger's role and location on the job site;
Motor vehicles and equipment in operation at the site; Worksite traffic patterns;
Communications and signals to be used between flaggers and equipment operators;
Expected train and other on track equipment movements; On foot escape route; and
Other hazards specific to the worksite.
(8)(a) Where flaggers are used on roads allowing speeds of at least 45 mph, the railroad must provide an additional warning sign marked "Be Prepared To Stop" or "Flagger Ahead."
(b) This sign is in addition to those required under ANSI D6.1 - 1988, Manual on Uniform Traffic Control Devices and should be placed between the last two warning signs in the series or on the opposite side of the road on undivided roads.
(c) This additional sign does not increase the required advance warning area. Its purpose is to clearly point out that a flagger will be encountered and the driver should be prepared to stop.
(9) Railroads must ensure that:
Flagger workstations are illuminated at night and during inclement weather;
Advance Warning Signs reflect the actual condition of the work zone;
Flaggers are not assigned other duties while engaged in flagging activities; and
Flaggers do not use devices (i.e. cell phones, pagers, radio headphone, etc.) that may distract the vision, hearing and/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.
(10) Unless an emergency makes it impossible, before performing any work, railroads must coordinate all repair, maintenance, and construction work with the political authority responsible for the road on which the crossing is located.
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Reviser's note: The section above was filed by the agency as WAC 460-62-235. However, the other rules for the Utilities and Transportation Commission are found in Title 480 WAC. The section above appears to be WAC 480-62-235, but pursuant to the requirements of RCW 34.08.040, it is published in the same form as filed by the agency.