1 STATUTORY OR OTHER AUTHORITY: The Washington Utilities and Transportation Commission takes this action under Notice No. WSR 04-05-104, filed with the code reviser on February 18, 2004. The commission brings this proceeding pursuant to RCW 80.01.040, and 80.04.160.

     2 STATEMENT OF COMPLIANCE: 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 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 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 reasons for adopting the rule, a summary of the comments received regarding the proposed rule, and responses reflecting the commission's consideration of the comments.

     5 The commission often includes a discussion of those matters in its rule adoption order. In addition, most rule-making proceedings involve extensive work by commission staff that includes summaries in memoranda of stakeholder comments, commission decisions, and staff recommendations in each of those areas.

     6 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.

     7 REFERENCE TO AFFECTED RULES: This rule amends the following sections of the Washington Administrative Code:

     WAC 480-62-125 Definitions.

     • Adds definitions of "remote-control area," "remote-control operations," and "remote-control zone."

     WAC 480-62-320 Remote controlled operations.

     • Amends subsections (1) and (2) of the rule to clarify the information that railroads must report, and requires that railroads report the creation as well as enlargement of remote-control areas and zones.

     • Amends subsection (3) of the rule to require railroads to report to the commission their intention to use cameras for point protection at crossings.

     8 PREPROPOSAL STATEMENT OF INQUIRY AND ACTIONS THEREUNDER: On November 1, 2002, the Washington State Legislative Board of the Brotherhood of Locomotive Engineers (BLE) filed a petition requesting that the commission adopt a safety advisory issued by the Federal Railroad Administration (FRA) as a state rule. On December 31, 2002, the commission denied the BLE's petition, but determined that it was appropriate for the commission to initiate a rule making to consider the issues raised in the petition. The commission filed a preproposal statement of inquiry (CR-101) with the Code Reviser's Office on January 24, 2003, at WSR 03-04-004.

     9 ADDITIONAL NOTICE AND ACTIVITY PURSUANT TO PREPROPOSAL STATEMENT: The statement advised interested persons that the commission was considering entering a rule making to consider whether the commission is preempted to any degree by federal law from adopting rules on the subject of remote-control locomotives and whether any state rules, whether or not based on the voluntary federal guidelines, should be considered for adoption. 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 notice to all railroad companies operating in the state and attorneys representing those railroads.

     10 Pursuant to the notice, the commission engaged in three stakeholder workshops on March 19, August 12, and October 3, 2003, to discuss federal preemption, remote-control operations generally, and to discuss draft rule language. During the March workshop, the commission gathered information about the various parties' proposals and positions. Prior to the August workshop, commission staff circulated a set of draft rules for discussion. Commission staff incorporated comments received during the August workshop and circulated a new set of draft rules in October. During the October workshop, commission staff received additional comments. Staff modified the discussion draft based upon the written comments received and discussion during the workshop, and prepared draft rule language for consideration by the commission as proposed rules.

     11 The commission received comments during this phase of the rule making from over sixty individuals, as well as representatives of the Burlington Northern and Santa Fe Railroad Company (BNSF), the Union Pacific Railway Company (UP), the Brotherhood of Locomotive Engineers (BLE), the United Transportation Union (UTU), the International Longshore and Warehouse Union (ILWU), the Washington State Labor Council, AFL-CIO, the FRA, the Spokane City Council, the Metropolitan King County Council, the City of Vancouver, and Clark County. These comments and staff's responses are included in two separate comment summaries reflecting comments received prior to March 3, 2003, and after March 3, 2003. These summaries were placed in the rule-making file and made available on the commission's website at www.wutc.wa.gov/021465.

     12 NOTICE OF PROPOSED RULE MAKING: Following oral comment on the issue at the commission's January 28, 2004, open meeting, the commission filed a notice of proposed rule making (CR-102) on February 18, 2004, at WSR 04-05-104. The commission scheduled this matter for further oral comment and adoption under Notice No. WSR 04-05-104 at 9:30 a.m., Wednesday, April 28, 2004, in the Commission's Hearing Room, Second Floor, Chandler Plaza Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice advised interested persons of the proposed revisions to WAC 480-62-125 and 480-62-320. The notice advised interested persons that the commission would address the issue of the protection of the point of movement of trains in a separate rule making, Docket No. TR-040151, instead of considering point protection rules concerning remote-controlled trains in this rule making.

     13 The commission informed persons of the rule proposal by providing notice of the proposal and the CR-102 to all persons on the commission's list of persons requesting such information pursuant to RCW 34.05.320(3) and by sending notice to all persons requesting notice from the commission concerning the rule-making proceeding. The notice provided interested persons the opportunity to submit written comments to the commission by March 10, 2004.

     14 COMMENTS (WRITTEN COMMENTS): The Washington State Legislative Board of the Brotherhood of Locomotive Engineers and Trainmen (WSLB-BLET) and BNSF and UP, jointly, submitted written comments on the rule proposal. The WSLB-BLET objected to the commission's removal of point protection rules from the proposed rules for adoption in this docket, but supported the remaining proposed rules. The railroads do not object to the proposed definitions in WAC 480-62-125, but assert that the commission is preempted by federal law from requiring railroads to provide advance notice of remote-control operations in WAC 480-62-320.

     15 RULE-MAKING HEARING: The rule proposal was considered for adoption, pursuant to the notice, at a rule-making hearing scheduled during the commission's regularly scheduled open public meeting on April 28, 2004, before Chairwoman Marilyn Showalter, Commissioner Richard Hemstad, and Commissioner Patrick J. Oshie. The commission heard oral comments from Mike Rowswell, representing commission staff, Robert Walkley, representing BNSF, and Dr. Mark Ricci, president of the WSLB-BLET.

     16 COMMISSION ACTION: After considering all of the information regarding this proposal, the commission adopted the rule amendments as noticed at WSR 04-05-104 with the changes described below.

     17 CHANGES FROM PROPOSAL: The commission adopted the proposal with the following changes from the text noticed at WSR 04-05-104.

     • The commission amended the definition of "remote-control operations" in WAC 480-62-125 to more appropriately reflect the nature of such operations, and

     • The commission added the words "remote-control" prior to the word "operations" in subsections (1) and (2) of WAC 480-62-320 to avoid ambiguity given the new definition of the term "remote-control operations."

     18 STATEMENT OF ACTION; STATEMENT OF EFFECTIVE DATE: In reviewing the entire record, the commission determines that WAC 480-62-125 and 480-62-320 should be amended 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 0, amended 2, 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.

     20 WAC 480-62-125 and 480-62-320 are amended 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 filing with the code reviser pursuant to RCW 34.05.380(2).

     21 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 10th day of May, 2004.

Washington Utilities and Transportation Commission

Marilyn Showalter, Chairwoman

Richard Hemstad, Commissioner

Patrick J. Oshie, Commissioner

OTS-6995.2

AMENDATORY SECTION(Amending Docket No. TR-981102, General Order No. R-477, filed 1/30/01, effective 3/2/01)

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.

     "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 trucks owned, operated, and maintained by a railroad company which transports railroad employees in other than 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.

[Statutory Authority: RCW 80.01.040, 81.04.160, 81.24.010, 81.28.010, 81.28.290, 81.40.110, 81.44.010, 81.44.020, 81.44.101-81.44.105, and chapters 81.48, 81.53, 81.54, 81.60, and 81.61 RCW. 01-04-026 (Docket No. TR-981102, General Order No. R-477), § 480-62-125, filed 1/30/01, effective 3/2/01.]

     (a) The name of the railroad company;

     (b) The approximate date when remote-control operations will start; and

     (c) The location of ((the)) remote-control operations((; and)). Railroads should provide sufficient information to allow the commission to determine what road crossings at grade are included within the remote-control area.

     (((d) Whether trains with locomotives operated by remote control will travel over at-grade pedestrian or vehicular crossings.))

     (2) ((If remote controlled trains will be operated over crossings, the railroad company must list the affected crossings)) Railroad companies must report to the commission their intention to create or enlarge a remote-control zone at least thirty days before remote-control operations begin. Reports must include:

     (a) The name of the railroad company;

     (b) The approximate date when remote-control operations will start; and

     (c) The remote-control area within which the zone will be created.

     (3) ((Each railroad company using remote control devices on the effective date of this rule must submit the report within thirty days after the effective date.)) Railroads must report to the commission their intention to use cameras for point protection at crossings at least thirty days prior to the intended implementation date.

[Statutory Authority: RCW 80.01.040, 81.04.160, 81.24.010, 81.28.010, 81.28.290, 81.40.110, 81.44.010, 81.44.020, 81.44.101-81.44.105, and chapters 81.48, 81.53, 81.54, 81.60, and 81.61 RCW. 01-04-026 (Docket No. TR-981102, General Order No. R-477), § 480-62-320, filed 1/30/01, effective 3/2/01.]

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