1 STATUTORY OR OTHER AUTHORITY: The Washington Utilities and Transportation Commission takes this action under Notice No. WSR 00-23-131, filed with the Office of the Code Reviser on November 22, 2000. The commission brings this proceeding pursuant to 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.

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 this order is entered.

4 CONCISE STATEMENT OF PURPOSE AND EFFECT OF THE RULE: The purpose of the proposed revisions to chapter 480-62 WAC is to provide clear, objective standards for addressing issues at highway-rail grade crossings, including maintenance and repair, modification, blocking, and safety operations. In addition, the proposed rule provides requirements regarding the reporting of operational information, and procedures for requesting changes in train speed limits.

5 The effect of the proposed revisions will be to contribute to improved safety at highway-rail grade crossings, provide greater communication between railroad companies and the communities through which they operate, as well as provide communities and railroad companies with clear procedures for requesting changes in train speed limits, and streamlined reporting requirements to allow for more efficient exchange of information with railroad companies.

6 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.

7 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.

8 In this docket, to avoid unnecessary duplications, 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.

9 REFERENCE TO AFFECTED RULES: This order adopts the following new sections of the Washington Administrative Code (WAC):

WAC 480-62-125	Definitions.
WAC 480-62-130	Application of this chapter.
WAC 480-62-135	Additional requirements.
WAC 480-62-140	Exemptions from rules.
WAC 480-62-145	Commission proceedings.
WAC 480-62-150	Grade crossing petitions.
WAC 480-62-155	Procedure to set train speed limits.
WAC 480-62-160	Compliance policy.
WAC 480-62-165	Severability.
WAC 480-62-170	Resolving disputes about the meaning of these rules.
WAC 480-62-200	Roadway worker safety and operating rules and statutes.
WAC 480-62-205	Track safety standards.
WAC 480-62-210	Crossing signal circuitry.
WAC 480-62-220	Blockage of public grade crossing.
WAC 480-62-225	Crossing surfaces.
WAC 480-62-230	Traffic control devices.
WAC 480-62-235	Flaggers.
WAC 480-62-240	Passenger carrying vehicles -- Equipment.
WAC 480-62-245	Passenger carrying vehicles -- Operations.
WAC 480-62-250	On track equipment.
WAC 480-62-300	Annual reports.
WAC 480-62-305	Railroad community notice requirements.
WAC 480-62-310	Accident reports.
WAC 480-62-315	Miscellaneous reporting requirements.
WAC 480-62-320	Remote controlled operations.
WAC 480-62-325	Railroad police officers -- Notice.
WAC 480-62-999	Adoption by reference.

10 This order repeals the following sections of the Washington Administrative Code (WAC):

WAC 480-62-010	Locomotive speedometers.
WAC 480-62-020	Traffic control devices.
WAC 480-62-030	Flagpersons.
WAC 480-62-040	Exemption.
WAC 480-62-050	Passenger carrying vehicles -- General.
WAC 480-62-060	Passenger carrying vehicles -- Equipment.
WAC 480-62-070	Passenger carrying vehicles -- Operation.
WAC 480-62-080	Accident reports.
WAC 480-62-085	Annual reports.
WAC 480-62-090	Hazardous materials regulations.
WAC 480-62-100	Bridge safety rules.
WAC 480-62-120	Train operations -- Tacoma.

11 PREPROPOSAL STATEMENT OF INQUIRY AND ACTIONS THEREUNDER: The commission filed a preproposal statement of inquiry (CR-101) on April 1, 1999, at WSR 99-08-053. The statement advised interested persons that the commission was considering entering a rule making on railroad company operations and would consider amending chapter 480-62 WAC in accordance with Executive Order 97-02.

12 ADDITIONAL NOTICE AND ACTIVITY PURSUANT TO PREPROPOSAL STATEMENT: The commission informed persons of the inquiry into this matter by providing notice of the subject and the CR-101 served April 1, 1999, to all railroad companies operating in the state, and to those persons who have expressed interest in related matters before the commission or appeared on lists of organizations, including: State agencies; city and county governments; labor unions; port associations; and members of the public. In addition to information about the rule making, the notice requested written responses to several issue questions and invited participation in a scheduled public workshop on May 27, 1999. The commission also issued a second notice of rule-making workshop on June 4.

13 Pursuant to the notices, commission staff held workshops on May 27, 1999 and June 17, 1999, in Olympia. The workshops were attended by representatives from railroad companies, local agencies, the law enforcement community, labor unions, and the public.

14 On September 15, 1999, the commission issued another notice of rule-making workshop that contained a discussion draft of the rules. The notice also invited comments regarding the discussion draft. The corresponding workshop, as well as an additional workshop to further discuss the draft rules, were held in Olympia, on September 28, 1999, and October 2, 2000, respectively.

15 Discussions at the first three workshops focused mainly on language, format, repealing sections that are no longer valid in the current environment, and drafting new rules regarding maintenance requirements, safety operations, and reporting. The October 2, 2000, workshop focused on identifying unresolved issues and working with interested parties to resolve those issues. At the conclusion of that workshop, unresolved issues included the draft rules relating to train speeds (WAC 480-62-155), crossing surfaces (WAC 480-62-225), flaggers (WAC 480-62-235), community notice requirements (WAC 480-62-305), and miscellaneous reporting requirements (WAC 480-62-315).

16 In compliance with chapter 19.85 RCW, on October 5, 2000, the commission sent all eighteen railroad companies operating in the state a memorandum and questionnaire concerning the potential economic effects of the draft rules on regulated companies. Only two incomplete questionnaires were returned. Due to lack of adequate data from railroad companies, it was necessary to explore and utilize data from existing literature, information reported to the commission, prior survey results from a recent railroad rule making completed under Docket No. TR-981101, and the knowledge and experience of staff. A small business economic impact statement, or SBEIS, was developed by staff based on responses to the questionnaire, and staff research.

17 On November 8, 2000, at an open meeting of the commission, the commission received a staff report and heard oral comments from railroad company representatives on the content of the draft rules. After hearing the staff report and oral comments, the commission directed the secretary to file a notice of proposed rule making (CR-102) with the Office of the Code Reviser.

18 NOTICE OF PROPOSED RULEMAKING: The commission filed a notice of proposed rule making (CR-102) and small business economic impact statement with the Office of the Code Reviser on November 22, 2000, published at WSR 00-23-131. In that notice, the commission scheduled this matter for oral comment and adoption at 9:30 a.m., Thursday, January 11, 2001, in the Commission's Hearing Room, Second Floor, Chandler Plaza Building, 1300 South Evergreen Park Drive S.W., Olympia, WA.

19 Further, on November 27, 2000, the commission issued a notice of opportunity to submit written comments on the proposed rule and notice of proposed rule adoption hearing to all interested persons on file. Written comments were requested by December 13, 2000, and the rule adoption hearing was specified as January 11, 2001.

20 COMMENTERS - WRITTEN COMMENTS: Written comments on the proposed rules were received from David Reeve, on behalf of the Burlington Northern Santa Fe Railroad Company (BNSF), Carolyn Larson, on behalf of Union Pacific Railroad Company (UP), James Slakey (Director of the Public Transportation and Rail Division), on behalf of the Washington State Department of Transportation (WSDOT), Christopher Keuss (Deputy Executive Director), on behalf of the Port of Edmonds, David Gebert (Director of Public Works), on behalf of the Town of Steilacoom, Frederick Ohly, Sr. (Associate General Counsel), on behalf of AMTRAK, and Joan Sterling (Legislative and Policy Analyst), on behalf of the Washington Military Department - Emergency Management Division.

21 BNSF, UP: All comments from BNSF and UP were submitted jointly. The railroads addressed the proposed rules relating to train speeds (proposed WAC 480-62-155), community notice requirements (WAC 480-62-305) and miscellaneous reporting requirements (WAC 380-62-315 [480-62-315]). Staff sent letters responding to the railroads' comments on January 3, 2001.

22 First, the railroads questioned the commission's authority to regulate train speeds, arguing that the regulation of train speeds is preempted by federal law, and that the proposed rule exceeds commission authority. In a written response to BNSF and UP, staff disagreed with the assertion that states were completely preempted by federal law from regulating train speeds. Staff explained that the Federal Railroad Safety Act (FRSA), 49 U.S.C. 20106, limits state authority to regulate train speeds to situations where "essentially local safety hazards" would require reduced train speeds to eliminate or reduce the hazards. Staff maintained that the proposed rule provides an objective mechanism for reviewing requests for changes in train speeds within the authority reserved to states by the FRSA.

23 BNSF and UP requested increased flexibility for railroad companies for proposed rules regarding community notice requirements (WAC 480-62-305) and miscellaneous reporting requirements (WAC 380-62-315 [480-62-315]).

24 The railroad community notice rule requires railroad companies to notify local jurisdictions and the commission "at least ten days prior to taking any planned action that may have a significant impact on a community" (e.g., reconstruction or maintenance that impedes traffic flow through a crossing, and may delay emergency response). The purpose of the proposed rule is to allow local jurisdictions to plan detours and otherwise be prepared for the closures of certain roadway routes. At the October 2, 2000, workshop, BNSF and UP explained that since actions at crossings, such as maintenance, rarely coincide with planned schedules, the proposed rule should be revised to include the phrase "best estimate of the start and completion date" for an action. This language, as well as a disclaimer stating, "This rule is not intended to include immediate safety hazards or emergencies," was incorporated to provide flexibility for the railroads. In their written comments, BNSF and UP continued to express concern about the rule being "inconsistent with maintenance practices and could result in the delays of routine, non-emergency repairs." For example, if the opportunity presented itself to replace a broken plank, the railroad would be less likely to seize that opportunity if the rule is adopted. The comments requested that the rule be modified to allow flexibility needed to perform routine maintenance.

25 In its written response, staff explained that there is no need to further change the proposed rule. Since the maintenance practices that BNSF and UP are concerned about are not planned and could prevent safety hazards, the flexibility that the railroads are requesting is already present in the proposed rule.

26 BNSF and UP expressed concern over a section of the proposed rule requiring railroad companies to provide the commission, upon request, with information in the railroad's control regarding train operations through crossings. BNSF and UP asserted that the requirement would impose an unreasonable burden on them to collect information the railroad companies do not ordinarily maintain.

27 Staff responded that the requested information is important to the commission's rail section in performing various duties. The information has been easily obtained from railroad companies in the past, and staff sees no need to require the information on a scale that would create an unreasonable burden on railroad companies. Therefore, staff did not believe the proposed rule should be modified.

28 WSDOT/AMTRAK: WSDOT and AMTRAK filed separate comments, but both focused solely on the train speed rule (proposed WAC 480-62-155). Like the railroads, WSDOT and AMTRAK questioned the commission's authority to regulate train speeds, arguing that the train speed issue is preempted by federal law, and that the proposed rule exceeds commission authority. In a written response sent to WSDOT and AMTRAK on January 2, 2001, staff disagreed with the assertion that states were completely preempted by federal law from regulating train speeds. Staff explained that the Federal Railroad Safety Act (FRSA), 49 U.S.C. 20106, limits state authority to regulate train speeds to situations where "essentially local safety hazards" would require reduced train speeds to eliminate or reduce the hazards. Staff maintained that the proposed rule provides an objective mechanism for reviewing requests for changes in train speeds within the authority reserved to states by the FRSA.

29 Port of Edmonds: The Port of Edmonds submitted comments regarding the proposed rule on crossing surfaces (WAC 480-62-225 (5)(a)). The proposed rule requires road authorities to provide ten days advance notice to railroad companies prior to performing maintenance that would affect a crossing. The Port of Edmonds recommended that road authorities also notify local jurisdictions when such work is carried out.

30 Staff incorporated this recommendation into the proposed rule due to the fact that, in some cases, the road authority at a crossing may be a separate agency than the local jurisdiction in which the crossing is located. For example, WSDOT may be the road authority for a crossing in Edmonds. The additional language would require WSDOT to notify the City of Edmonds, in addition to the railroad, when planning work that affects the crossing.

31 Town of Steilacoom: The Town of Steilacoom submitted comments regarding the proposed rule concerning train speeds (WAC 480-62-155(3)), and specifically what constitutes an "essentially local safety hazard," and the proposed rule on flaggers (WAC 480-62-235 (8)(e)).

32 Steilacoom requested that man-made conditions be considered by the commission, in addition to natural conditions, when assessing situations that constitute essentially local safety hazards. In written comments sent by staff on January 3, 2001, staff agreed that man-made conditions present applicable hazards; however, there is a qualitative difference between the two types of conditions. Man-made conditions can often be changed to eliminate dangers, while natural conditions often cannot be changed. Local discretionary actions, such as placing certain types of structures near tracks are not allowed to dictate national policy, while natural conditions predate track construction. Despite those differences, the proposed rule does allow consideration of man-made structures in the section that provides for analysis of potential for accidents. Man-made structures are simply not emphasized, because of the differences mentioned above.

33 Staff notified Steilacoom that it had decided to delete the word "natural" from proposed WAC 480-62-155 (3)(b), as it is probably too limiting to suggest that only natural (e.g., geological) conditions would meet the definition of an "essentially local safety hazard" under the state regulation savings clause of the Federal Railroad Safety Act, 49 U.S.C. 20106.

34 Other comments by Steilacoom requested that a section of the flagger rule, concerning flagger breaks, be modified to include the sentence, "during breaks, another qualified flagger must take over flagging duties."

35 In written comments, staff notified Steilacoom that the purpose of the flagger rule is to require methods for ensuring the protection of flaggers when they are used, and is not intended to suggest circumstances when flaggers should be used. However, proposed WAC 480-62-230, "Traffic control devices" states that "flaggers be provided where necessary to adequately protect the public and railroad employees," thus implicitly stating that when flaggers are appropriate for traffic control, they should be relieved by other qualified flaggers when on breaks. Therefore, there is no need to change the proposed rule.

36 Washington Military Department - Emergency Management Division: The Emergency Management Division of the Washington Military Department filed written comments supporting the proposed rule on train speeds (WAC 480-62-155), and suggested changes to the proposed rules on blocking grade crossings (WAC 480-62-220), crossing surfaces (WAC 480-62-225), railroad community notice requirements (WAC 480-62-305), and accident reports (WAC 480-62-310). Specifically the Emergency Management Division recommended that, in addition to notice to the local jurisdiction in those proposed rules, notice of the location of the affected crossing also be provided to the Public Safety Answering Point (PSAP) responsible for dispatch of necessary services.

37 In written comments sent to the Emergency Management Division on January 2, 2001, staff agreed that the recommendations were appropriate. However, staff stated that it would pursue the suggested modifications in a subsequent rule making due to the need to adopt certain proposed rules as permanent rules no later than March 1, 2001, and the fact that additional notice requirements would likely require filing an additional CR-102 with the Office of the Code Reviser.

38 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 January 11, 2001, before Chair Marilyn Showalter and Commissioner Richard Hemstad. During the adoption hearing, the commission received a staff report and heard oral comments from representatives of BNSF, UP, and WSDOT. In addition to the staff report and stakeholder comments, Jonathan Thompson of the Attorney General's Office provided information on the issue of the commission's jurisdiction over train speeds.

39 COMMENTS AT ADOPTION HEARING: The following people provided oral comments at the January 11, 2001, adoption hearing:

40 UP and BNSF: Carolyn Larson spoke on behalf of UP, and Daniel Kinerk spoke on behalf of BNSF. In their comments, both parties reaffirmed their comments and concerns from previous written comments regarding the proposed rule concerning train speeds, and Ms. Larson repeated her concerns concerning the proposed rules on miscellaneous reporting requirements, and community notice requirement.

41 Washington State Department of Transportation: Jeff Schultz spoke on behalf of WSDOT, also reaffirming previous written comments objecting to the train speed rule.

42 SUGGESTIONS FOR CHANGE THAT ARE REJECTED: As noted above, BNSF, UP, WSDOT, and AMTRAK all suggested that the commission not adopt the proposed rule concerning train speeds (WAC 480-62-155). In addition, the Town of Steilacoom requested changes to the proposed rule concerning flaggers (WAC 480-62-235 (8)(e)), and the Emergency Management Division of the Washington Military Department requested certain changes to be made to a number of proposed notification rules, e.g., blocking grade crossings (WAC 480-62-220), crossing surfaces (WAC 480-62-225), railroad community notice requirements (WAC 480-62-305), and accident reports (WAC 480-62-310). The commission rejects the suggestions for change to these proposed rules.

43 Proposed Flagger Rule: Steilacoom requested that a section of the flagger rule, concerning flagger breaks, be modified to include the sentence, "during breaks, another qualified flagger must take over flagging duties." The commission believes the purpose of the flagger rule is to require methods for ensuring the protection of flaggers when they are used, and is not intended to suggest circumstances when flaggers should be used. However, proposed WAC 480-62-230 Traffic control devices states that "flaggers be provided where necessary to adequately protect the public and railroad employees," thus implicitly stating that when flaggers are appropriate for traffic control, they should be relieved by other qualified flaggers when on breaks. Therefore, there is no need to incorporate the suggested change.

44 Proposed Notification Rules: The Emergency Management Division of the Washington Military Department recommended changes to the proposed rules on blocking grade crossings (WAC 480-62-220), crossing surfaces (WAC 480-62-225), railroad community notice requirements (WAC 480-62-305), and accident reports (WAC 480-62-310). Specifically the Emergency Management Division recommended that, in addition to notifying the local jurisdiction in those proposed rules, notice of the location of the affected crossing also be provided to the Public Safety Answering Point (PSAP) responsible for dispatch of necessary services.

45 The commission agrees that the recommendations are appropriate, but believes that properly addressing the suggestions would require an additional round of stakeholder meetings and comments. In particular, additional notice requirements would likely require filing an additional CR-102 with the Office of the Code Reviser. Due to the need to adopt certain proposed rules in this docket as permanent rules no later than March 1, 2001, the commission believes it is best to pursue the suggested modifications in a subsequent rule making.

46 Proposed Train Speed Rule:

47 In their written and oral comments on the proposed train speed rule, BNSF, UP, WSDOT, and AMTRAK all assert that the commission is preempted by federal law from regulating train speeds and that the commission should not adopt the proposed rule. Specifically, BNSF and UP assert that the proposal to require railroad companies to obtain prior approval from the commission before modifying train speeds is "patently unconstitutional." Further, the railroads assert that the state statutes authorizing the commission to regulate train speeds, RCW 81.48.030 and 81.48.040, have been preempted by federal law.

48 The commission rejects the suggestion that the commission is preempted from adopting the proposed rule on train speeds. The federal statute addressing the issue of preemption is a section of the Federal Railroad Safety Act, appearing in 49 U.S.C. 20106. This statute provides that:

Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when the law, regulation, or order-

(1)	is necessary to eliminate or reduce an essentially local safety hazard;
(2)	is not incompatible with a law, regulation, or order of the United States Government; and
(3)	does not unreasonable [unreasonably] burden interstate commerce.

U.S.C. 20106.

49 The statue [statute] clearly provides a role for the states in determining whether an essentially local safety hazard exists that should result in a lower train speed than that set by the secretary of transportation. Given the commission's statutory authority to regulate train speeds, the commission believes it is appropriate to adopt a rule that establishes a clear procedure for reviewing whether a local safety hazard exists. That procedure requires the commission to review a proposal made by either a railroad company or other party to modify existing train speed limits, before the speed is modified.

50 Over the past several years, the railroads have made and the commission has reviewed numerous requests to increase train speed limits in the state of Washington to the limits established by the Federal Railroad Administration. Requests to modify train speed limits usually result in a strong response from local jurisdictions and members of the public requesting the commission to take action under its statutory authority. The commission believes that the process set forth in the proposed rule will provide clear guidance to the railroads, local jurisdictions and other interested parties as to the procedure before the commission when reviewing requests to modify train speed limits, as well as the commission's jurisdictional limits in setting train speed limits. For these reasons, the commission rejects the suggestions made by BNSF, UP, WSDOT, and AMTRAK.

51 COMMISSION ACTION: After considering all of the information regarding this proposal, the commission repealed the existing rules in chapter 480-62 WAC and adopted the proposed rules with the changes described below.

52 CHANGES FROM PROPOSAL: The commission adopted the proposal with the following changes from the text noticed at WSR 00-23-131. First, a number of typographical changes were made to correct grammatical or citation errors in the text. In addition, more detailed changes were made to the rules concerning train speeds (WAC 480-62-155), crossing signal circuitry (WAC 480-62-210), crossing surfaces (WAC 480-62-225), railroad community notice requirements (WAC 480-62-305), and miscellaneous reporting requirements (WAC 480-62-315).

53 Train speeds (WAC 480-62-155): In order to address some of the concerns raised by the railroads, WSDOT, and AMTRAK, the commission simplified the language of the rule heading from "Procedure to set train speed limits" to "Train speeds," to eliminate the focus on the "setting" of train speed limits.

54 Second, the commission added language to subsection (2)(a) to state more explicitly the process a railroad must follow when seeking modification of an existing limit set by the commission. This language recognizes the different information that the commission requires from a railroad company than from a person or local jurisdiction seeking to modify a train speed limit.

55 Third, the commission added a section outlining the burden of proof for the railroad and other persons when filing a petition with the commission to modify or set train speeds. This new subsection (2)(c), recognizes that the railroad will have made a prima facie case as to why the speed must be modified if the railroad includes all information required by subsection (2)(a)(ii)(A)-(E). The new subsection also recognizes that the local jurisdiction or commission staff bear the burden to show the existence of an essentially local safety hazard.

56 Finally, proposed changes to subsection (3) incorporate a suggestion made by the Town of Steilacoom concerning what constitutes an essentially local safety hazard. Specifically, the rule includes the words "at a minimum," in the first sentence, and deletes the word "natural" from subsection (3)(a).

57 Crossing signal circuitry (WAC 480-62-210): A change to proposed WAC 480-62-210(3) clarifies that the commission will enforce the rule against certain railroad companies that are not subject to the jurisdiction of the Federal Railroad Administration pursuant to the compliance policy set forth in proposed WAC 480-62-160.

58 Crossing surfaces (WAC 480-62-225): The Port of Edmonds recommended that the commission require highway authorities to notify local jurisdictions as well as railroad companies when performing maintenance on a crossing surface. The suggestion is adopted and the entire notification section is moved to WAC 480-62-305 concerning railroad community notice requirements, substituting in WAC 480-62-225 a reference to WAC 480-62-305.

59 Railroad community notice requirements (WAC 480-62-305): The commission added two new subsections to the proposed rule to clarify requirements for notice by highway authorities and railroad companies when performing maintenance on a crossing.

60 In addition, during the adoption hearing before the commission on January 11, 2001, the commission added language to address a concern raised by Ms. Larson, representing UP. The commission adds a note after subsection (1), to read "NOTE: Maintenance practices, such as replacing broken planks if the opportunity to do so is unexpectedly presented, are not considered to be planned actions and would likely prevent safety hazards. In such situations, advance notice would not be required."

61 Miscellaneous reporting requirements (WAC 480-62-315): During the adoption hearing, Ms. Larson also raised a concern with subsection (2) of the proposed rule on miscellaneous reporting requirements. The commission adds words to clarify that railroads are not required to conduct new or additional research to provide the required information on train operations.

62 STATEMENT OF ACTION; STATEMENT OF EFFECTIVE DATE: In reviewing the entire record, the commission determines that WAC 480-62-010, 480-62-020, 480-62-030, 480-62-040, 480-62-050, 480-62-060, 480-62-070, 480-62-080, 480-62-085, 480-62-090, 480-62-100 and 480-62-120 should be repealed; and WAC 480-62-125, 480-62-130, 480-62-135, 480-62-140, 480-62-145, 480-62-150, 480-62-155, 480-62-160, 480-62-165, 480-62-170, 480-62-200, 480-62-205, 480-62-210, 480-62-220, 480-62-225, 480-62-230, 480-62-235, 480-62-240, 480-62-245, 480-62-250, 480-62-300, 480-62-305, 480-62-310, 480-62-315, 480-62-320, 480-62-325, and 480-62-999 should be adopted 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 Office of 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 1, Amended 0, Repealed 1.

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 27, Amended 0, Repealed 12.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 6, 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.

1. WAC 480-62-010, 480-62-020, 480-62-030, 480-62-040, 480-62-050, 480-62-060, 480-62-070, 480-62-080, 480-62-085, 480-62-090, 480-62-100, and 480-62-120 are repealed, and WAC 480-62-125, 480-62-130, 480-62-135, 480-62-140, 480-62-145, 480-62-150, 480-62-155, 480-62-160, 480-62-165, 480-62-170, 480-62-200, 480-62-205, 480-62-210, 480-62-220, 480-62-225, 480-62-230, 480-62-235, 480-62-240, 480-62-245, 480-62-250, 480-62-300, 480-62-305, 480-62-310, 480-62-315, 480-62-320, 480-62-325, and 480-62-999 are adopted 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).

2. 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 Office of the Code Reviser for filing pursuant to chapters 80.01 and 34.05 RCW and chapter 1-21 WAC.

DATED at Olympia, Washington, this 30th day of January, 2001.

Washington Utilities and

Transportation Commission

Marilyn Showalter, Chairwoman

Richard Hemstad, Commissioner

OTS-4525.2

PART 1: GENERAL AND PROCEDURAL RULES
NEW SECTION

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.

"State" means the state of Washington.

[]

(1) To all Class I, II, and III railroad companies operating within the state of Washington, with the exceptions noted in subsections (2), (3), and (4) of this section.

(2) To and within first class cities except for WAC 480-62-145, 480-62-150, 480-62-155, and 480-62-225.

(3) To and within cities with a population of more than 400,000 except for WAC 480-62-145, 480-62-150, 480-62-155, 480-62-225, 480-62-230, and 480-62-235.

(4) To logging and industrial railroads except for WAC 480-62-200, 480-62-205, 480-62-215, 480-62-240, 480-62-245, 480-62-250, 480-62-300, the portions of WAC 480-62-310 that do not involve grade crossing accidents, WAC 480-62-315 (2), (4) and (5), and WAC 480-62-325.

[]

(2) The commission retains the authority to impose additional or different requirements on any railroad company in appropriate circumstances, consistent with the requirements of law.

[]

(2) To request a rule exemption, a person must file with the commission a written request identifying the rule for which an exemption is sought, giving a full explanation of the reason the exemption is requested.

(3) The commission will assign the request a docket number, if it does not arise in an existing docket, and will schedule the request for consideration at one of its regularly scheduled open meetings or, if appropriate under chapter 34.05 RCW, in an adjudication. The commission will notify the person requesting the exemption, and other affected persons, of the date of the hearing or open meeting when the commission will consider the request.

(4) In determining whether to grant the request, the commission may consider whether application of the rule would impose undue hardship on the petitioner, of a degree or a kind different from hardships imposed on other similarly situated persons, and whether the effect of applying the rule would be contrary to the purposes of the rule.

(5) The commission will enter an order granting or denying the request or setting it for hearing, pursuant to chapter 480-09 WAC.

[]

[]

(a) Opening a railroad-highway crossing at-grade, or by constructing an overcrossing or undercrossing;

(b) Closing a railroad-highway crossing;

(c) Constructing supplemental safety measures under RCW 81.48.015(1), including, but not limited to, median barriers;

(d) Realigning highway or railroad tracks;

(e) Widening highways;

(f) Constructing multiple tracks; or

(g) Changes to crossing surfaces that alter:

- The dimensions of an existing surface;

- The angle at which the tracks intersect a highway; or

- The vertical alignment of a crossing (i.e., to accommodate track superelevation, or changes in railroad or roadway grade).

(2) Whenever a railroad company, city, county, the department of transportation, the parks and recreation commission, or the commission seeks to take any of the following actions at a railroad-highway grade crossing, it must file a petition with the commission seeking approval under RCW 81.53.261:

(a) Modifying or upgrading warning signals or devices;

(b) Adding a crossing signal;

(c) Adding gates to a crossing signal;

(d) Modifying or upgrading circuitry for a warning signal; or

(e) Installing an intertie between railroad crossing signals and highway traffic signals.

(3) This rule applies to all railroad companies, including logging and industrial railroads, however, it does not apply to crossings within the limits of first class cities, unless federal funding is used at the crossing.

[]

(2) Procedure. The commission will consider whether to set train speed limits below those authorized by the United States Secretary of Transportation either upon petition or upon its own motion.

(a) Petition process.

(i) Any person, other than a railroad company, who seeks to have the commission set a train speed limit different from the federally set speed limit or modify an existing limit set by the commission must file with the commission a petition. Such petition must contain the following information:

(A) Name and address of the petitioner;

(B) Specific location and length of track over which the speed limit is sought;

(C) Reasons for the speed limit;

(D) If the petitioner seeks a speed limit different from the federally set speed limit, a detailed explanation of why there exists an "essentially local safety hazard" and why that speed limit is necessary to eliminate or reduce the hazard; and

(E) Any other information the petitioner deems relevant.

(ii) A railroad company that seeks to modify an existing limit set by the commission must file with the commission a petition. Such petition must contain the following information:

(A) Name and address of the railroad company, and a contact person;

(B) Specific location and length of track over which the speed limit is sought;

(C) Class of track over which the speed limit is sought;

(D) Reason for the speed limit requested; and

(E) Any other information the railroad company deems relevant.

(iii) Upon receipt of a petition, the commission will serve the petition on the railroad company, if the railroad company did not file the petition; the governing body of any local government within which the proposed speed limit is intended to apply; and the secretary of the department of transportation. The commission will ask for responses from those persons. The commission will set the matter for consideration at a regularly scheduled or special open meeting or, in its discretion, for a formal adjudicatory proceeding under chapter 34.05 RCW.

(b) Commission-initiated process. After investigation, the commission may also initiate a proceeding to set a train speed limit. Such a proceeding will be initiated by serving a notice on the railroad company or companies; the chief executive officer of any local government within which the proposed speed limit is intended to apply; and the secretary of the department of transportation. The notice will contain the information described in (a)(i)(A) through (E) of this subsection, the time for filing responses to the notice and the date, time, and place at which the commission will consider the matter. Such consideration may be at a regular or special open meeting or, in the commission's discretion, in a formal adjudicatory proceeding under chapter 34.05 RCW.

(c) Burden of proof.

(i) When a railroad company files a petition to modify an existing limit set by the commission to or within a federally set speed limit, including the information set forth in (a)(ii)(A) through (E) of this subsection, the railroad will be deemed to have met its burden of proof as to why the speed limit should be modified. The burden then shifts to the governing body of the local government, commission staff, or other interested persons to show that there exists "an essentially local safety hazard," and that a speed limit different from that proposed by the railroad company is necessary to eliminate or reduce the hazard.

(ii) When a person, other than a railroad company, files a petition with the commission to set a train speed limit different from the federally set speed limit or modify an existing limit set by the commission, that person bears the burden of showing that there exists "an essentially local safety hazard," and that the speed limit is necessary to eliminate or reduce the hazard.

(iii) When the commission initiates a proceeding on its own motion to set a train speed limit different from the federally set speed limit or modify an existing limit set by the commission, the commission staff bears the burden of showing that there exists "an essentially local safety hazard," and that the speed limit is necessary to eliminate or reduce the hazard.

(3) Evidence of what constitutes an "essentially local safety hazard." In determining whether a train speed limit, lower than authorized by federal law, is necessary to eliminate or reduce an essentially local safety hazard, the commission will include in its consideration, at a minimum, the following:

(a) Whether the local situation is one that is covered by or is capable of being adequately covered by uniform national standards;

(b) Whether there exist unusual local geographic or other conditions which contribute to the existence of the hazard;

(c) The history of accidents or potential for accidents at the location; and

(d) Whether there exist alternate means to reduce or eliminate any hazard that can be included as conditions to an order setting a train speed.

[]

(a) A program emphasizing education and technical assistance; and

(b) A compliance program including inspections and investigation of railroad company operations:

(i) For compliance with state statutes, rules, and commission orders;

(ii) For compliance with Federal Railroad Administration (FRA) rules through the State Safety Participation Program, 49 CFR Part 212. Information about Title 49 CFR regarding the version adopted and where to obtain it is set out in WAC 480-62-999.

(2) The commission may pursue administrative actions, including, but not limited to, issuing defect notices to railroad companies, reports and recommendations to the FRA, warnings, sanctions, and penalty assessments.

[]

[]

[]

(a) 49 CFR Part 209: Railroad safety enforcement procedure;

(b) 49 CFR Part 214: Railroad workplace safety;

(c) 49 CFR Part 217: Railroad operating rules;

(d) 49 CFR Part 218: Railroad operating practices;

(e) 49 CFR Part 219: Procedures for transportation workplace drug testing programs;

(f) 49 CFR Part 220: Radio standards and procedures;

(g) 49 CFR Part 221: Rear end marking device - passenger, commuter and freight trains;

(h) 49 CFR Part 225: Railroad Accidents/Incidents: Reports classification, and investigations;

(i) 49 CFR Part 228: Hours of service of railroad employees;

(j) 49 CFR Part 239: Passenger train emergency preparedness;

(k) 49 CFR Part 240: Qualification and Certification of Locomotive Engineers Hours of Service;

(l) 49 U.S.C. Chapter 211: Hours of Service.

(2) Information about Title 49 CFR and Title 49 U.S.C. regarding the version adopted and where to obtain it is set out in WAC 480-62-999.

(3) All violations of the above incorporated rules and statutes will be submitted to the Federal Railroad Administration for enforcement action pursuant to the State Safety Participation Program, 49 CFR Part 212.

[]

(2) All violations of the above incorporated rules will be submitted to the Federal Railroad Administration for enforcement action pursuant to the State Safety Participation Program, 49 CFR Part 212.

[]

(2) All violations of the above incorporated rules will be submitted to the Federal Railroad Administration for enforcement action pursuant to the State Safety Participation Program, 49 CFR Part 212.

(3) Violations involving all railroad companies not subject to the jurisdiction of the Federal Railroad Administration will be enforced pursuant to WAC 480-62-160, Compliance policy.

[]

(2) All violations of the above incorporated rules and statutes will be submitted to the Federal Railroad Administration for enforcement action pursuant to the State Safety Participation Program, 49 CFR Part 212.

[]

(2) A blocked grade crossing must be cleared immediately by the fastest available method, if the train movement will not violate rules issued by the Federal Railroad Administration, upon the request of law enforcement or other emergency services personnel, or when the engineer becomes aware that the crossing is being approached by a law enforcement or other emergency services vehicle with its emergency lights flashing or that such a vehicle is stopped with its emergency lights flashing at the crossing blocked by the train.

(3) A grade crossing is "blocked" if any part of a stopped train occupies the crossing or causes warning devices to be activated.

[]

(a) Highway authorities must maintain and keep in repair the surfaces and the subgrades of the roadway approaches up to one foot from the outside of either rail at a grade crossing with one track. At crossings involving more than one track, the highway authority must maintain and keep in repair the roadway approaches up to one foot from the outside of each of the two outside rails.

(b) At a grade crossing with one track, railroad companies must maintain and keep in repair the crossing surfaces between the rails and for a distance of one foot on the outside of either rail. At crossings involving more than one track, railroad companies must maintain and keep in repair the crossing surfaces and the roadway for the entire area between the outermost rails at the crossing, and for a distance of one foot outside of the two outermost rails.

(c) If tracks at a crossing involving more than one track are owned by different railroad companies, each company must maintain and keep in repair the crossing surfaces and roadway within its right of way that is within the area specified in (b) of this subsection.

(2) Crossing surfaces.

(a) Crossing surfaces include shoulders and pedestrian walkways immediately adjacent to a roadway or shoulder. If reasonably possible, roadways and adjacent shoulders and pedestrian walkways must be continued through a crossing without narrowing the roadway, shoulder or walkway.

(b) The subgrade to a crossing surface must be maintained in a manner which minimizes damage to the crossing surface, taking into account the effects of topography, water tables, weather, and the types of vehicular traffic generally using the crossing.

(3) Roadways.

(a) Roadways between tracks at crossings involving more than one set of tracks, including the roadway subgrade, must be of the same quality as the roadway approaches to the crossing unless the highway authority and the railroad company agree to a higher quality.

(b) Roadway approaches must be constructed and maintained so that the transition between the roadway and crossing surface is on the same plane and smooth.

(c) At grade crossings where track superelevation exists, roadway approaches must be constructed and maintained so that the transition between the roadway and crossing surface is as smooth as practicable.

(4) Standards for surface maintenance and repair. Crossing surfaces must be convenient and safe for passage. Some factors in determining compliance with this general standard are:

(a) Whether crossing surfaces and the adjacent roadways are level with the top of the rails on the plane created by each set of tracks.

(b) Whether crossing surfaces are broken or loose.

(c) The existence of potholes.

(d) The existence of curled or rolled asphalt.

(e) Whether traffic generally slows to traverse the crossing.

(f) Citizen complaints.

(5) Notice. Notice requirements for highway authorities and railroad companies when performing maintenance on a crossing surface are located in WAC 480-62-305 (4) and (5).

[]

(2) The rules governing traffic control devices are prescribed in the Manual on Uniform Traffic Control Devices and chapter 468-95 WAC. Information about the Manual on Uniform Traffic Control Devices and chapter 468-95 WAC regarding the versions adopted and where to obtain them is set out in WAC 480-62-999.

(3) Any traffic control device must be used only as long as the device is needed or applicable. Any device that is no longer needed or applicable must be immediately removed or inactivated so as to prevent confusion.

(4) All barricades, signs, and similar devices must be constructed and installed in a workmanlike manner.

(5) Bushes, weeds, or any other material or object must not be allowed to obscure any traffic control devices.

(6) All signs, barricades, and other control devices intended for use during hours of darkness must be adequately illuminated or reflectorized, with precautions taken to protect motorists from glare.

[]

(2) Except as otherwise required in this section, traffic control devices, signs, barricades, and signaling methods must be set up and used by individuals trained in and familiar with the provisions of and according to the guidelines in the Manual on Uniform Traffic Control Devices, Part VI.

(3) Flaggers are to be used only when other reasonable means of control will not adequately control traffic in work zones. 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.

(4) Standards for high-visibility safety apparel.

(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 Standards for High-Visibility Safety Apparel, specifically, a garment containing at least seven hundred seventy-five square inches of background material and two hundred one square inches of retroreflective material; and

- A high-visibility hard hat.

(b) While flagging at night, a flagger must, at a minimum, 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 twelve square inches of reflectorized material providing three hundred sixty degrees of visibility.

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

(5) Railroad companies must develop and use a method to ensure that whenever there is any potential hazard associated with motor vehicles, construction equipment, or on-track equipment, that flaggers have adequate warning of objects 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 audible warning; or
	- Use a spotter.

(6)(a) Railroad companies must conduct an on-site safety briefing for flaggers each time a flagger reports for duty, and also when job site conditions change significantly. 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 at the job site;

- Motor vehicles and equipment in operation at the site;

- Job site 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 job site.

(b) When flaggers are used on a job site at a roadway allowing speeds of forty-five mph or more and the job will last more than one day, the railroad company must keep on the 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.

(7)(a) Where flaggers are used on roads allowing speeds of at least forty-five mph, the railroad company must provide an additional warning sign marked "BE PREPARED TO STOP."

(b) This sign is in addition to those required by Part VI of the Manual on Uniform Traffic Control Devices. It should be placed between the last two warning signs in the series or on the opposite side of the road when used on undivided roads.

(c) This additional sign does not increase the required advance warning area.

(d) The purpose of this additional sign is to clearly point out that a flagger will be encountered and the driver should be prepared to stop.

(8) To protect flaggers, railroad companies must ensure that:

(a) Flagger workstations are illuminated at night and during inclement weather 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 engaging in flagging activities.

(d) Flaggers do not use devices (e.g., cell phones, pagers, or radio headphones) that may distract the vision, hearing, or attention of the flagger. Devices such as two-way radios used for communication 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.

(9) Unless an emergency makes it impossible, before performing any work, railroad companies must coordinate all repair, maintenance, and construction work with the governing authority responsible for the road on which the crossing exists.

(10) Information about Title 49 CFR, the Manual on Uniform Traffic Control Devices, and ANSI/ISEA 107-1999 regarding the versions adopted and where to obtain them is set out in WAC 480-62-999.

[]

(a) Vehicles must comply with all applicable equipment requirements of Title 46 RCW.

(b) Vehicles must have exhaust systems that prevent exposure of passengers to the vehicle's emissions.

(c) Vehicles must have two external rear vision mirrors, one at each side of the cab. The mirrors must be firmly attached to the motor vehicle at a point where the driver is provided a view of the highway to the rear along both sides of the vehicle. An outside mirror may be placed only on the driver's side on vehicles in which the driver has a view to the rear by means of an interior mirror.

(d) Vehicles must be equipped with a steering system maintained to insure that lash or preplay do not exceed those values set forth in 49 CFR, Parts 570.7 and 570.60 (Vehicle in Use Inspection Standards). Information about Title 49 CFR regarding the version adopted and where to obtain it is set out in WAC 480-62-999.

(e) Vehicles must have a heating system that will maintain an ambient temperature of at least fifty-five degrees in passenger areas.

(f) Vehicles must have at least three red-burning fusees, three red portable emergency reflectors, or at least two red cloth flags suitable for warning the motoring public in an emergency. The driver must ensure that such equipment is in the vehicle and is maintained in good condition. Any devices that may create a spark or open flame must be carried in a separate compartment or a closed metal container provided for that purpose.

(g) Vehicles must have a two and one-half pound dry chemical fire extinguisher or its equivalent, properly filled and located where it is readily accessible for use. The extinguisher must allow visual determination of the state of its charge at all times. The extinguishing agent must be nontoxic and preferably noncorrosive. The fire extinguisher must be suitable for attachment to the motor vehicle, bear the label of approval by the Underwriters Laboratories, Inc., and be kept in good working condition at all times.

(h) Vehicles must have a first-aid kit located where it is readily accessible. The kit must contain all of the items specified in WAC 296-24-06145 and 296-24-06160, Appendix 2, adopted by the department of labor and industries. Additionally, the kit must contain gloves capable of preventing exposure to bloodborne pathogens. Items used from first-aid kits must be replaced before the next shift, and kits must be checked for compliance with this rule if the seal on the kit is broken. Information about chapter 296-24 WAC regarding the version adopted and where to obtain it is set out in WAC 480-62-999.

(2) Equipment requirements for specified vehicles.

(a) Coupling devices used on a vehicle equipped with retractable flange wheels for operation on railroad tracks must be substantial and made of metal. The devices must be equipped with safety chains or straps of sufficient strength to prevent separation in the event of accidental uncoupling.

(b) A passenger compartment separate from the cab of the vehicle must be made of metal and be fastened directly to the frame of the vehicle. The compartment must have an interior lining sufficient to absorb condensation, and padded seats and backrests firmly secured in place. The floor of the compartment must be constructed to bear the weight of all cargo and passengers. The floor must not have unnecessary openings, and it must be constructed to prevent the entry of noxious fumes or permeation with flammable materials. The compartment must have a curtain of nonpermeable material of sufficient weight and size to close off the rear opening and a tailgate which must be closed whenever the vehicle is in motion. If the bottom of the entrance to the passenger compartment is more than three feet six inches above ground level, the vehicle must have permanent or temporary steps designed for the safe boarding and discharge of passengers.

(c) Communication between a cab and a separated passenger compartment must be provided by means of a light or audible device mounted in the cab of the vehicle that may be activated by a passenger in the rear compartment.

(d) On vehicles designed to transport nine or more passengers, an emergency exit must be placed at the end of the vehicle opposite the regular entrance. The exit must be at least six and one-half square feet in area, and the smallest dimension must be at least eighteen inches. The route to and from the emergency exit must be unobstructed at all times.

[]

(2) Minimum age, skill, and physical condition of drivers. Drivers of passenger carrying vehicles must be at least eighteen years old. Before being allowed to drive or operate a passenger carrying vehicle, drivers must have demonstrated the physical capability of handling the controls of the vehicle with ease. Before driving a vehicle, drivers or operators must obtain either a valid Washington state driver's license or a valid license from the state of the driver's residence. The driver must carry the license at all times while operating a vehicle. If the passenger carrying vehicle is a type for which the state of Washington requires an extraordinary license or endorsement, the driver must have such license or endorsement.

(3) Driver's daily hours of service. No driver of any passenger carrying vehicle may drive for more than ten hours without resting afterward for a minimum of eight consecutive hours.

(4) Refueling. No driver or any employee of a railroad company operating within the state may:

(a) Fuel a passenger carrying vehicle with the engine running;

(b) Smoke or expose any flame in the vicinity of a vehicle being fueled;

(c) Fuel a passenger carrying vehicle unless the nozzle of the fuel hose is continuously in contact with the intake pipe of the fuel tank;

(d) Insofar as practicable, permit any other person to engage in activities that might result in a fire or explosion. Except on buses, all occupants of the vehicle, except the driver and those within the operating cab, must dismount and stand clear while the vehicle is being refueled.

(5) Driving rules.

(a) Drivers must bring vehicles to a complete stop not less than fifteen feet from the nearest rail of any at-grade crossing before crossing the track except:

- Where traffic is controlled by a police officer or a duly authorized flagger;

- Where traffic is regulated by a traffic control signal;

- Where traffic is controlled by crossing gate arms or an alternately flashing light signal intended to give warning of the approach of a train;

- Where an official traffic control device as designated by the commission pursuant to RCW 81.53.060 (i.e., an "EXEMPT" sign, specified as R15-3 by the Manual on Uniform Traffic Control Devices) gives notice that the stopping requirement imposed by this section does not apply. Information about the Manual on Uniform Traffic Control Devices regarding the version adopted and where to obtain it is set out in WAC 480-62-999.

(b) Drivers must not change gears while crossing any railroad tracks.

(c) No driver may drink intoxicating liquors while on duty, or drive while affected by the use of intoxicating liquor or other substance which might impair the ability to drive.

(d) No driver may proceed down a grade with the gears in neutral or the clutch disengaged.

(e) At the beginning of his or her use of a vehicle, the driver must perform a brake test immediately before, and immediately after, the vehicle begins moving to ensure that the brakes are functioning properly.

(6) Loading and carrying of passengers. Drivers are in charge of the vehicle and must require passengers to observe vehicle rules. Passengers may not enter or exit from the vehicle while it is in motion, or ride on running boards, fenders, bumpers, tops of cabs, or with any part of their body projecting beyond the sides or the ends of the vehicle. When equipment or tools are carried inside the vehicle, they must be stored in enclosed racks or boxes that are secured to the vehicle in a manner that prevents employees from being struck in the event of sudden starts, stops, or turns. The driver must assure that tools and materials are properly secured before moving the vehicle.

(7) Limitation on transportation of explosives, gasoline, and other hazardous materials on passenger carrying vehicles. Explosives other than track torpedoes and fusees may not be carried in or on any vehicle while the vehicle is being used to transport crew members in a passenger compartment. If track torpedoes or fusees are carried in a passenger carrying vehicle, they must be carried in a separate compartment or container provided for that purpose. Gasoline, or other hazardous materials, must not be carried in either the cab or in the passenger compartment; however, oxygen or acetylene cylinders may be carried if gauges and regulators have been removed with caps in place before loading. Passenger carrying vehicles may be used to carry flammable materials when they are located outside of and isolated from the passenger carrying area, and are stored in containers approved by the Underwriters Laboratories, Inc. Containers for fuel must be vented in a manner that prevents the hazardous concentration of fumes. All tools and equipment, including cylinders, containers, or drums, must be properly secured where they will not interfere with the use of any exit. A passenger carrying vehicle containing hazardous materials must not be parked within three hundred feet of an open fire. Smoking is prohibited within fifty feet of a vehicle carrying explosive or flammable materials.

[]

(2) Railroad companies that allow persons other than railroad personnel on official railroad business to operate motor track cars, speeders, or other on track equipment on their track must ensure that the operators comply with subsection (1) of this section.

[]

(2) Each year every railroad company is responsible for obtaining the proper report form from the commission. Reports must be completed for the preceding calendar year's operations. One copy of the completed annual report must be submitted to the commission no later than May 1 of the succeeding year.

[]

(1) At least ten days prior to taking any planned action that may have a significant impact on a community, railroad companies must notify, in writing, the governing authority of the community and the commission of the planned action.

Note:

Maintenance practices, such as replacing broken planks if the opportunity to do so is unexpectedly presented, are not considered to be planned actions and would likely prevent safety hazards. In such situations, advance notice would not be required.

(2) Examples of actions that may have significant impact on a community include disrupting the use of a crossing for track inspection, reconstruction, maintenance, or blocking a crossing.

(3) The notice must contain a heading with the words "important notice" in prominent type and contain, at a minimum, the following:

(a) Date the notice is issued;

(b) A clear explanation of the type of planned event;

(c) Specific location of the event;

(d) An estimation of the start and completion date of the event;

(e) Any additional information that will assist the community to plan for the event;

(f) Railroad company contact person and phone number; and

(g) A statement substantially as follows: "If you have questions about the regulatory process, you may contact the Washington Utilities and Transportation Commission at: WUTC, 1300 S. Evergreen Park Dr. S.W., P.O. Box 47250, Olympia, WA 98504-7250; 1-800-562-6150 (toll-free). Also, you may contact the Federal Railroad Administration at 1-800-724-5998 (toll-free)."

(4) Whenever a highway authority plans to perform maintenance that will affect a crossing, it must notify the railroad company and local jurisdiction at least ten days before performing the maintenance.

(5) Whenever a railroad company plans to perform maintenance that involves changing the type of material used as a grade crossing surface, it must also notify the commission at least ten days prior to performing the replacement.

[]

(a) Release of any hazardous material (i.e., materials that are corrosive, flammable, explosive, reactive with other materials, or toxic);

(b) Death of any person;

(c) Injury to any person involved in a railroad-highway crossing accident that requires medical treatment in addition to first aid; or

(d) Property damage, amounting to fifty thousand dollars or more to property.

(2)(a) Telephone reports of events listed in subsection (1) of this section must be made by the railroad company within thirty minutes of when it learned of the event. The report must provide detailed information of the event to the duty officer. After receiving the telephone report from the railroad company, the duty officer will identify the necessary critical response and remediation resources and agencies on an initial and continuous basis through the completion of the response to the event; and

(b) The duty officer will notify the commission, the affected county or city emergency management office and other appropriate agencies of the event report.

(c) Provisions contained in (a) and (b) of this subsection must be carried out in accordance with the state's twenty-four hour duty officer standard procedures and the Washington Emergency Management Act, chapter 38.52 RCW.

(3) Each event report made under subsection (1) of this section by a railroad company must state, to the extent known, the:

(a) Name of the railroad(s) involved;

(b) Name and position of the reporting individual;

(c) Time and date of the event;

(d) Circumstances of the event;

(e) Number and identity of persons suffering injuries;

(f) Number of fatalities and the identities of the deceased;

(g) The type and amount of hazardous material spilled; and

(h) Other details that will assist in identifying the necessary response, as prompted by the duty officer.

(4) Accidents involving joint railroad company operations must be reported by the railroad company that controls the track and directs the movement of trains where the accident has occurred.

(5) Whenever a railroad company submits an event report to the Federal Railroad Administration, it must submit a copy to the commission at the same time.

(6) Whenever a railroad submits a report to the United States Department of Transportation concerning a hazardous materials incident or accident, it must submit a copy of the report to the commission at the same time.

[]

(2) Upon request, every railroad company and railroad company official must report to the commission the information then available to it regarding the average number of daytime through trains, nighttime through trains, and switching movements over specific grade crossings in its control. Reports must identify each crossing by USDOT number and road name.

(3) Upon request, every railroad company must inform the commission in writing of the names, addresses, and telephone numbers of the persons to whom to report emergencies of any nature, and problems or defects with crossing signals, passive warning devices, and crossing surfaces. The information must be current at all times.

(4) Upon request, every railroad company must provide the commission with access to or copies of track profiles. This requirement may be satisfied by allowing electronic access to track profiles.

(5) Upon request, every railroad company must provide the commission with access to or copies of its timetable. This requirement may be satisfied by allowing electronic access to the timetables.

[]

(a) The name of the railroad company;

(b) The date operations will start;

(c) The location of the operations; and

(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.

(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.

[]

(2) When any person is commissioned as a railroad police officer, an officer's commission is terminated, or a change occurs in the information previously reported under subsection (3) of this section, the affected railroad company must send written notice to the commission within ten days after the change occurs.

(3) The notices specified in subsections (1) and (2) of this section must contain the following information:

(a) The name of the railroad police officer;

(b) The badge number, identification number, code or other identifying information assigned to the railroad police officer;

(c) The date of commission;

(d) The state or states where the railroad police officer is commissioned; and

(e) The address and telephone number of the officer's primary business office.

[]

(1) Title 49 Code of Federal Regulations, cited as 49 CFR, is published by the United States Government Printing Office.

(a) The commission adopts the version in effect on January 29, 2001.

(b) This publication is referenced in WAC 480-62-160, 480-62-200, 480-62-205, 480-62-210, 480-62-215, 480-62-235 and 480-62-240.

(c) Copies of Title 49 Code of Federal Regulations are available from the Seattle Office of the Government Printing Office and from various third-party vendors.

(2) Manual on Uniform Traffic Control Devices, cited as Manual on Uniform Traffic Control Devices, or MUTCD, is published by the United States Government Printing Office.

(a) The commission adopts the version in effect on January 29, 2001.

(b) This publication is referenced in WAC 480-62-230, 480-62-235 and 480-62-245.

(c) Copies of the MUTCD are available from the Seattle Office of the Government Printing Office and from various third-party vendors.

(3) Washington state department of transportation rules, cited as chapter 468-95 WAC, are published by the statute law committee.

(a) The commission adopts the version in effect on January 29, 2001.

(b) This publication is referenced in WAC 480-62-230.

(c) Copies of the Washington state department of transportation rules are available from the department of transportation or on the internet website for the office of the code reviser (leg.wa.gov/CodeReviser).

(4) Washington state department of labor and industries rules, cited as chapter 296-24 WAC, are published by the statute law committee.

(a) The commission adopts the version in effect on January 29, 2001.

(b) This publication is referenced in WAC 480-62-240.

(c) Copies of the Washington state department of labor and industries rules are available from the department of labor and industries or on the internet website for the office of the code reviser (leg.wa.gov/CodeReviser).

(5) ANSI/ISEA 107-1999 - American National Standard for High-Visibility Safety Apparel is published by the American National Standards Institute.

(a) The commission adopts the version in effect on January 29, 2001.

(b) This publication is referenced in WAC 480-62-235.

(c) Copies of ANSI/ISEA 107-1999 - American National Standard for High-Visibility Safety Apparel are available from the American National Standards Institute, 11 West 42nd Street, NY, NY 10036 or on the internet website for the American National Standards Institute (http://web.ansi.org/).

[]

     The following sections of the Washington Administrative Code are repealed:

WAC 480-62-010	Locomotive speedometers.
WAC 480-62-020	Traffic control devices.
WAC 480-62-030	Flagpersons.
WAC 480-62-040	Exemption.
WAC 480-62-050	Passenger carrying vehicles -- General.
WAC 480-62-060	Passenger carrying vehicles -- Equipment.
WAC 480-62-070	Passenger carrying vehicles -- Operation.
WAC 480-62-080	Accident reports.
WAC 480-62-085	Annual reports.
WAC 480-62-090	Hazardous materials regulations.
WAC 480-62-100	Bridge safety rules.
WAC 480-62-120	Train operations -- Tacoma.

Washington State Code Reviser's Office