PROPOSED RULES
LABOR AND INDUSTRIES
Original Notice.
Preproposal statement of inquiry was filed as WSR 00-14-073.
Title of Rule: WAC 296-32-240 Employee protection in public work areas and 296-45-52530 Employee protection in public work areas.
Purpose: State-initiated amendments are proposed to comply with the requirements of chapter 239, Laws of 2000 (ESHB 2647), which directed the department to "adopt permanent rules that take effect no later than March 1, 2001, revising any safety standards governing flaggers." Because of an administrative error, amendments proposed on October 18, 2000, to WAC 296-32-240 and 296-45-52530 were not adopted when the department adopted chapter 296-155 WAC flagger amendments on January 26, 2001 (WSR 01-04-015). As a result the department is again proposing the following amendments to chapter 296-32 WAC, Safety standards for telecommunications and chapter 296-45 WAC, Safety standards for electrical workers. The proposed amendments have been written to comply with the clarity criteria of Executive Order 97-02.
AMENDED SECTIONS:
WAC 296-32-240 Employee protection in public work areas.
| Rewrote subsection (1) according to clear rule-writing principles and changed "shall" to "must." |
| Added requirement in subdivision (a) that traffic control signs, devices, and barriers must be positioned and used according to chapter 296-155 WAC, Part E requirements. |
| Added requirement in subdivision (a) that "employers, responsible contractors and/or project owners" must comply with WAC 296-155-305 requirements when flaggers are used. |
| In subdivision (b), changed "at night" to "during hours of darkness" to be consistent with WAC 296-155-305. |
| Rewrote and reorganized the section according to clear rule-writing principles and changed "shall" to "must." |
| Added the requirement that "employers, responsible contractors and/or project owners" must comply with WAC 296-155-305 requirements when flaggers are used. |
| Changed "at night" to "during hours of darkness" to be consistent with WAC 296-155-305. |
Statutory Authority for Adoption: RCW 49.17.010, [49.17].040, and [49.17].050, chapter 239, Laws of 2000 (ESHB 2647) and chapter 34.05 RCW.
Statute Being Implemented: Chapter 49.17 RCW.
Summary: See Purpose above.
Reasons Supporting Proposal: See Purpose above.
Name of Agency Personnel Responsible for Drafting: Tracy Spencer, Tumwater, (360) 902-5530; Implementation and Enforcement: Michael A. Silverstein, Tumwater, (360) 902-5495.
Name of Proponent: Department of Labor and Industries, governmental.
Rule is not necessitated by federal law, federal or state court decision. Legislative (state initiated): Chapter 239, Laws of 2000 (ESHB 2647).
Explanation of Rule, its Purpose, and Anticipated Effects: See Purpose above.
Proposal Changes the Following Existing Rules: See Purpose above.
No small business economic impact statement has been prepared under chapter 19.85 RCW. From "Discussion of Economic Impact" dated February 1, 2001, and prepared by Greg Nothstein, Legislative Economist, Legislative and Government Affairs Office, Department of Labor and Industries:
"New rules and rule amendments must meet the requirements of the Regulatory Fairness Act (RFA), chapter 19.85 RCW and the Administrative Procedure Act (APA), chapter 34.05 RCW. One of the requirements of the RFA is that the economic impact of proposed regulations on small businesses be examined relative to their impact on large businesses. The agency must prepare a small business economic impact statement (SBEIS) when a proposed rule, or rule amendments, have the potential of placing a more than minor economic impact on business. A related requirement in the APA demands an evaluation of the probable costs and benefits of a proposed regulation and that it be shown that these probable benefits exceed the probable costs: Process referred to as a cost-benefit analysis (CBA). A number of criteria and exemptions were established for both the SBEIS analysis and the CBA analysis. One key criteria (RCW 34.05.328 (5)(b)(v)) is that "rules the content of which is explicitly and specifically dictated by (Washington state) statute..." are not subject to the SBEIS and CBA requirements. Because the proposed rule adopts into rule requirements specified in ESHB 2647 it is my conclusion that neither an SBEIS nor a CBA are required."
A copy of the statement may be obtained by writing to Greg Nothstein, Economic Analyst, Department of Labor and Industries, P.O. Box 44001, Olympia, WA 98504-4001, phone (360) 902-6805, fax (360) 902-4202.
RCW 34.05.328 does not apply to this rule adoption. Although the proposed amendments are considered "significant legislative rules" under RCW 34.05.328, the requirements of that section do not apply because the content of the proposed amendments is "explicitly and specifically dictated by statute" (see RCW 34.05.328 (5)(b)(v)).
Hearing Location: Department of Labor and Industries Building, Auditorium, 7273 Linderson Way S.W., Tumwater, WA, on March 14, 2001, at 2:00 p.m.; and at the Department of Labor and Industries Service Location, Conference Room 4, 901 North Monroe, Suite 100, Spokane, WA, on March 15, 2001, at 1:30 p.m.
Assistance for Persons with Disabilities: Contact Sally Elliott by March 1, 2001, at (360) 902-5484.
Submit Written Comments to: Tracy Spencer, Standards Manager, WISHA Services Division, P.O. Box 44620, Olympia, WA 98507-4620, by 5:00 p.m. on March 15, 2001.
In addition, the department will accept comments submitted by fax to (360) 902-5529; or electronically to George Huffman, Project Manager, WISHA Standards Section, hufh235@lni.wa.gov. Comments submitted by fax must be ten pages or less.
Date of Intended Adoption: March 20, 2001.
February 7, 2001
Gary Moore
Director
OTS-4350.1
AMENDATORY SECTION(Amending Order 76-38, filed 12/30/76)
WAC 296-32-240
Employee protection in public work areas.
(1)(a) Before work ((is begun)) begins in the vicinity of
vehicular or pedestrian traffic ((which)) that may endanger
employees, ((warning signs and/or flags or other traffic control
devices shall be placed conspicuously to alert and channel
approaching traffic. Where further protection is needed,
barriers shall be utilized)) traffic control signs, devices, and
barriers must be positioned and used according to the
requirements of chapter 296-155 WAC, Part E. When flaggers are
used, employers, responsible contractors and/or project owners
must comply with the requirements of WAC 296-155-305.
(b) ((At night)) During hours of darkness, warning lights
((shall)) must be prominently displayed((,)) and excavated areas
((shall)) must be enclosed with protective barricades.
(2) When work exposes energized or moving parts that are normally protected, danger signs shall be displayed and barricades erected to warn other personnel in the area.
(3) The employer shall insure that an employee finding any crossed or fallen wires which create or may create a hazardous situation at the work area:
(a) Remains on guard or adopts other adequate means to warn other employees of the danger, and
(b) Has the proper authority notified at the earliest practical moment.
[Order 76-38, 296-32-240, filed 12/30/76; Order 75-41, 296-32-240, filed 12/19/75.]
OTS-4351.1
AMENDATORY SECTION(Amending WSR 98-07-009, filed 3/6/98,
effective 5/6/98)
WAC 296-45-52530
Employee protection in public work areas.
(1) ((Traffic control signs and traffic control devices used for
the protection of employees shall meet the requirements of
chapter 296-155 WAC, Part E.
(2) Before work is begun in the vicinity of vehicular or pedestrian traffic that may endanger employees, warning signs or flags and other traffic control devices shall be placed in conspicuous locations to alert and channel approaching traffic.
(3) Where additional employee protection is necessary, barricades shall be used.
(4) Excavated areas shall be protected with barricades.
(5) At night, warning lights shall be prominently displayed.)) (a) Before work begins in the vicinity of vehicular or pedestrian traffic that may endanger employees, traffic control signs, devices, and barriers must be positioned and used according to the requirements of chapter 296-155 WAC, Part E.
(b) When flaggers are used, employers, responsible contractors and/or project owners must comply with the requirements of WAC 296-155-305.
(2) During hours of darkness, warning lights must be prominently displayed.
(3) Excavated areas must be protected with barricades.
[Statutory Authority: RCW 49.17.010, [49.17].040, [49.17].050 and [49.17].060. 98-07-009, 296-45-52530, filed 3/6/98, effective 5/6/98.]