Agenda Date: May 24, 2000 Agenda Item: Docket: TR-000606 Railroad Emergency Rulemaking--WAC 480-62-235 Flaggers Staff: Mike Rowswell, Rail Operations Manager Karen Caille, Administrative Law Judge Recommendation: Adopt the emergency flagger rule as set forth in Attachment 1. 1. Background: Flaggers are exposed to numerous dangers while engaged in their duties. Over the last year, several have been killed when struck from behind by vehicles. In response to these deaths, Section 1, chapter 239, Laws of 2000 was enacted during the last legislative session. The new law requires the Commission, Department of Transportation and Labor and Industries to consult with one another and adopt emergency rules revising safety standards governing flaggers. The rules must take effect no later than June 1, 2000. On April 21, 2000, the Traffic Control Oversight Committee met with staff from the Department of Labor & Industries and the Commission. The committee consists of union representatives, WSDOT officials, training specialists, PUD personnel and other parties knowledgeable about traffic issues. During the meeting, the group developed fifty-five ideas for consideration by Labor & Industries to better protect flaggers. On April 24, 2000, staff from Labor & Industries selected ideas from the larger list and incorporated them into their existing rules. Those were communicated to all other parties for use in their respective rulemakings. Based upon the collaborative efforts and discussions of the parties at the April 21, 2000 meeting, and on the importance of consistency in safety procedures, Staff used the proposed Labor and Industries rules unless the railroad environment presented other safety concerns. 2. General Safety Improvements. The new law requires the Commission to adopt rules “designed to improve options available to ensure the safety of flaggers....” Adopting the standards of the Federal Highway Administration approved Manual on Uniform Traffic Control Devices (MUTCD) will make the actions, procedures and clothing for railroad flaggers consistent with the most modern standards available. Using the same standards as other highway flaggers will also reduce the potential for highway users to become confused or to misunderstand signs or flagger signals. Other proposed rules also increase flagger safety. Requirements such as white coveralls at night, and illumination of the work area at night and during inclement weather, increase the visibility of the flagger. Additional signs, and requiring the employer to ensure that signage reflects the actual condition of the site, will help provide proper warning to motorists to watch out for flaggers. Daily safety briefings will provide flaggers with more information about the dangers around them, and ways to avoid those dangers. 3. Warning for Flaggers of Objects Approaching from Behind Them. Another requirement of the law is to “ensure that flaggers have adequate visual warning of objects approaching from behind them.” Every work site is different, making it difficult to prescribe specific procedures. The proposed rule places the responsibility on the employer to adopt methods that will provide flaggers with sufficient warning. Several nonexclusive options are listed within the proposed rule for employers’ consideration. 4. Adopting Permanent Rules. The statute requires that the emergency rules remain in effect until permanent rules are adopted, which must be no later than March 1, 2001. A rulemaking was begun under Docket No. TR-981102, which included review of existing flagger rules. The proposed emergency rules will be included in the ongoing rulemaking, and permanent rules will be proposed later in 2000. Public Comment The procedure for adopting emergency rules does not require a means for public comment. However, recognizing that industry, labor and public input is important to the effectiveness and reasonability of any rule, proposed rules were sent out to all interested parties listed in other railroad rulemakings, including all railroads operating in the state of Washington. The Burlington Northern and Santa Fe Railway Co. and the Union Pacific Railroad jointly submitted a single set of comments. The Puget Sound and Pacific Railroad Co. also submitted comments. The comments submitted were thought provoking and helpful. A number of changes were made as a result of the railroads’ input. It was pointed out that 49 CFR Part 234 preempts states from adopting rules under situations listed in that part. After receiving this comment, staff revised the rules to ensure that those situations were excluded from the rules; however, railroads were encouraged to comply with the proposed rules in those situations, just as the federal regulations encouraged them to comply with the MUTCD. It was suggested that the rules encourage roads to be closed so that flaggers would not have to be used. Staff modified the proposed rules to include a comment about temporary closure in the rules; however, it was left to local jurisdictions to determine whether other traffic and emergency vehicle concerns outweigh the increased safety gained by closing a road. A concern was expressed that the proposed rules set up inconsistent sets of standards. Staff believes that the deviations from the MUTCD are not significant enough to cause a problem, and that they constitute added protection rather than inconsistent standards. There was a concern that it was confusing to restate existing standards in a separate rule. The press of time and the need to provide a readable text prevented staff from winnowing out restatements. Also, Staff can address specific problems during the ongoing rule making. Objections were made to the use of white coveralls, “Flagger Ahead” signs and other advance warning signs. Alternatives were suggested. Although the suggestions have substantial merit standing alone, staff believes that the safety impact resulting from consistency among affected agencies outweighs the benefits that might accrue from the alternatives. It should be noted that the substance of any emergency rules adopted by the Commission will be reviewed in the ongoing rulemaking in docket number TR-981102. All interested parties will be given the opportunity to submit more comments and to discuss their viewpoints further with staff. Conclusion Based upon the foregoing, Staff recommends the Commission adopt proposed rule WAC 480-2-235. Attachments: Attachment 1: Proposed Rule for Flaggers.