Federal Register: November 21, 2008 (Volume 73, Number 226)
23CFR 634 Interim Final Rule
[Federal Register: November 21, 2008 (Volume 73, Number 226)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 634
[FHWA Docket No. FHWA-2008-0157]
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Interim Final Rule (IFR).
SUMMARY: The FHWA is revising its regulations to address safety
raised by the firefighting community regarding high-visibility safety
apparel. Due to imminent safety implications to firefighters, the FHWA
has determined that there is good cause under the Administrative
Procedure Act to dispense with notice and opportunity for comment as it
would be contrary to the public interest. Therefore, we are issuing an
Interim Final Rule, effective immediately, pursuant to the
Administrative Procedure Act, and revising FHWA regulations
DATES: Effective Date: This rule is effective November 24, 2008.
ADDRESSES: Mail or hand deliver comments to Docket Management Facility:
U.S. Department of Transportation, 1200 New Jersey Avenue, SE.,
Washington, DC 20590-0001, submit comments electronically at <A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov">http://
www.regulations.gov</A>, or fax comments to (202) 493-2251.
All comments should include the docket number that appears in the
heading of this document. All comments received will be available for
examination and copying at the above address from 9 a.m. to 5 p.m.,
e.t., Monday through Friday, except Federal holidays. Those desiring
notification of receipt of comments must include a self-addressed,
stamped postcard or may print the acknowledgment page that appears
after submitting comments electronically. Anyone is able to search the
electronic form of all comments in any one of our dockets by the name
of the individual submitting the comment (or signing the comment, if
submitted on behalf of an association, business, or labor union). You
may review the DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (Volume 65, Number 70, Pages
19477-78) or you may visit <A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://DocketsInfo.dot.gov">http://DocketsInfo.dot.gov</A>.
FOR FURTHER INFORMATION CONTACT: For technical information: Mr. Hari
Kalla, Office of Transportation Operations, (202) 366-5915. For legal
information: Mr. Raymond Cuprill, Office of Chief Counsel, (202) 366-
0791, Federal Highway Administration, 1200 New Jersey Avenue, SE.,
Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15
p.m., e.t., Monday through Friday, except Federal holidays.
Electronic Access and Filing
You may submit or retrieve comments online through the Federal
eRulemaking portal at <A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov">http://www.regulations.gov</A>. It is available 24
hours each day, 365 days each year. Please follow the instructions
online for more information and help.
An electronic copy of this document may also be downloaded by
accessing the Office of the Federal Register's home page at: <A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.archives.gov">http://
www.archives.gov</A> and the Government Printing Office's Web page at:
In this IFR, the FHWA is revising existing regulations to address
safety concerns raised by the firefighting community. On April 24,
2006, at 71 FR 20925, the FHWA published a Notice of Proposed
Rulemaking (NPRM) proposing to require the use of high-visibility
safety apparel for workers who work within the Federal-aid highway
rights-of-way. This regulation implemented section 1402 of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU) (Pub. L. 109-59; August 10, 2005), which
directed the Secretary of Transportation to, within 1 year, issue
regulations to decrease the likelihood of worker injury and maintain
the free flow of vehicular traffic by requiring workers whose duties
place them on or in close proximity to a Federal-aid highway to wear
high-visibility safety apparel. The proposed definition of ``worker''
included any person on foot whose duties place them within the right-
of-way of a Federal-aid highway, such as highway construction and
maintenance forces, survey crews, utility crews, responders to
incidents, including law enforcement personnel, within the highway
right-of-way of a Federal-aid highway. ``High-visibility safety
apparel'' was defined as any garment meeting the American National
Standards Institute (ANSI) 107-2004 Class 2 or 3 standard.
The comment period for the NPRM closed on June 23, 2006. The FHWA
received 117 letters, which were submitted to the docket, containing
over 300 individual comments submitted by State and local law
enforcement agencies, State departments of transportation, city and
county government agencies, consulting firms, private industry,
associations, other organizations, and individual private citizens. The
FHWA did not receive any comments from the firefighting community
either in support of or in opposition to the proposed regulations. Many
of the comments received from the law enforcement community, including
one from the International Association of Chiefs of Police, requested
an exception for law enforcement personnel engaged in law enforcement
activities, as opposed to traffic control type activities. The law
enforcement community commenters contended that an officer wearing a
high-visibility garment would stand out in situations where the
additional conspicuity could be hazardous for the officer. The intent
of the regulation was to improve the safety of workers by providing
increased visibility to approaching motorists and construction traffic,
not to place an officer in a more dangerous position during enforcement
activities. Therefore, the FHWA agreed with the recommendation from the
International Association of Chiefs of Police and provided an exception
for law enforcement personnel in the Final Rule.
On November 24, 2006, at 72 FR 67792, the Final Rule establishing
23 CFR part 634 was published in the Federal Register. A compliance
date of November 24, 2008, was established to provide a 2-year phase-in
period. During this period, the firefighting community became aware of
the regulation and the implications for their operations. Many of the
letters that the FHWA has received from the firefighting community
during the phase-in period indicate support of the regulation in
general, but raise concerns about situations where the requirement to
wear a high-visibility garment could cause operational problems for
firefighters and could result in decreased safety for individual
firefighters. During the NPRM comment period, an equipment manufacturer
commented that, due to the competing hazards that exist for workers,
such as heat and flame, the FHWA should consider incorporating worker
categories, or at a minimum, exempt fire services responders, and
instead encourage best practices in the use of high-visibility apparel
in emergency situations in accordance with hazard assessments or
specific environments. In response, in the preamble for the Final Rule,
the FHWA indicated, ``If an agency determines that the material must be
fire resistant, it can include a provision in the specification for the
garments that they purchase.'' It appears that, a material that meets
the fluorescent color of the ANSI 107-2004 standard and is heat- and
flame-resistant to the degree required by firefighters and the National
Fire Protection Association (NFPA) standards has not been developed.
Therefore, it is possible that, by complying with 23 CFR part 634, a
firefighter wearing a high-visibility garment could be at a greater
risk of injury.
The firefighting community has also identified issues related to
the amount of other personal protection equipment (PPE) required for
firefighters in situations where high heat or flames are
present. In addition to the ``turnout gear'' worn by most firefighters
required by a NFPA 1971 standard, they are often required to wear a
Self-Contained Breathing Apparatus. Requiring the use of the high-
visibility garment as the outer layer of a firefighter's apparel in
such situations would not be practical. Additionally, the firefighting
community contends that wearing a garment outside the turnout gear
could create a snag hazard in the extraction operations at some
incident scenes. This could hinder the operations and decrease safety
for a firefighter.
In certain situations, such as responding to incidents on the
roadway, firefighters and other emergency personnel must consider
competing hazards. Conflicting regulations to 23 CFR part 634 may also
exist. For example, the NFPA standards specify the type of PPE that
firefighters must wear based on the different conditions they
encounter. The Occupational Safety and Health Association regulations
also require employers to complete and certify PPE Hazard Assessments
that identify all job hazards and the correct PPE for workers to wear
when engaged in work duties. While these regulations do not always
conflict with 23 CFR part 634, certain conditions where they do so may
In April 2008, the University of Michigan, Ann Arbor,
Transportation Research Institute released a study on the conspicuity
of first-responder safety garments. The study was conducted on a closed
track in both daytime and nighttime conditions to compare the
conspicuity of three different types of safety garments used by first
responders: NFPA 1971 turnout gear coats, ANSI/ISEA 107 safety vests,
and ANSI/ISEA 207 safety vests. Eight participants, balanced for gender
and age, drove instrumented vehicles on the closed track indicating the
distance at which they could detect workers at a simulated emergency
response scene. The results show no statistically significant
difference in the distance at which workers were detected, regardless
of which garment was worn. In other words, all three garment standards
provided equal levels of conspicuity under the conditions examined. The
results suggest that all of the garments studied should be considered
equivalent relative to first responder conspicuity when working in
close proximity to traffic.\1\ Based upon this research, the FHWA
believes that the PPE for firefighters specified in the NFPA 1971
standard is equivalent to the ANSI 107-2004 Class 2 garment.
\1\ Tuttle, S.J., Sayer, J.R., Buonarosa, M.L.; ``The
conspicuity of first-responder safety garments''; available at
<A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://hdl.handle.net/2027.42/58734">http://hdl.handle.net/2027.42/58734</A>; University of Michigan, Ann
Arbor, Transportation Research Institute (2008).
This subsection is amended to revise the definition of ``worker''
to exclude firefighters when they are exposed to flame, fire, high heat
or hazardous materials.
This subsection is amended to exempt firefighters from the
requirement to use high-visibility safety apparel, as defined in this
rule, when they are exposed to hazardous conditions where the use of
such apparel may increase the risk of injury to firefighter personnel.
Rulemaking Analyses and Notices
Due to the imminent safety implications to firefighters, the FHWA
has determined that there is good cause under 5 U.S.C. 553(b)(3)(B) to
dispense with notice and opportunity for comment as it would be
contrary to the public interest. And, in addition, for the same reason,
we are making this Interim Final Rule effective immediately under 5
U.S.C. 553(d)(3), and, therefore, revising 23 CFR part 634 accordingly.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 and is
not significant within the meaning of U.S. Department of Transportation
regulatory policies and procedures. It is anticipated that the economic
impact of this rulemaking would be minimal. These changes would not
adversely affect, in a material way, any sector of the economy. In
addition, these changes would not interfere with any action taken or
planned by another agency and would not materially alter the budgetary
impact of any entitlements, grants, user fees, or loan programs.
Consequently, a full regulatory evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612) the FHWA has evaluated the effects of this action on
small entities and has determined that the action would not have a
significant economic impact on a substantial number of small entities.
This action does not affect any funding distributed under any of the
programs administered by the FHWA. For these reasons, the FHWA
certifies that this action would not have a significant economic impact
on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This rule would not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This rule would not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of
$128.1 million or more in any one year (2 U.S.C. 1532).
Executive Order 13132 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, and the FHWA has
determined that this action would not have sufficient federalism
implications to warrant the preparation of a federalism assessment. The
FHWA has also determined that this action would not preempt any State
law or State regulation or affect the States' ability to discharge
traditional State governmental functions.
Executive Order 13211 (Energy Effects)
We have analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use, dated May 18, 2001. We have determined that it is
not a significant energy action under that order since it is not likely
to have a significant adverse effect on the supply, distribution, or
use of energy. Therefore, a Statement of Energy Effects is not
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.205,
Highway Planning and Construction. The regulations implementing
Executive Order 12372 regarding intergovernmental consultation on
Federal programs and activities apply to this program.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501),
Federal agencies must obtain approval from the Office of Management and
Budget for each collection of information they conduct, sponsor, or
require through regulations. The FHWA has determined that this rule
does not contain collection of information requirements for the
purposes of the PRA.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
The FHWA has analyzed this rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. The FHWA certifies that this action would not cause any
environmental risk to health or safety that might disproportionately
Executive Order 12630 (Taking of Private Property)
The FHWA has analyzed this rule under Executive Order 12630,
Governmental Actions and Interface with Constitutionally Protected
Property Rights. The FHWA does not anticipate that this action would
affect a taking of private property or otherwise have taking
implications under Executive Order 12630.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that this action would not have any effect on the quality of
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
List of Subjects in 23 CFR Part 634
Design standards, Highways and roads, Incorporation by reference,
Workers, Traffic regulations.
Issued on: November 14, 2008.
Thomas J. Madison, Jr.
Administrator, Federal Highway Administration.
In consideration of the foregoing, the FHWA amends chapter I of title
23, Code of Federal Regulations, as set forth below:
PART 634--WORKER VISIBILITY
1. The authority citation for part 634 continues to read as follows:
Authority: 23 U.S.C. 101(a), 109(d), 114(a), 315, and 402(a);
Sec. 1402 of Pub. L. 109-59; 23 CFR 1.32; and 49 CFR 1.48(b).
2. Amend Sec. 634.2 to revise the definition of ``Workers'' as
Sec. 634.2 Definitions.
* * * * *
Workers means people on foot whose duties place them within the
right-of-way of a Federal-aid highway, such as highway construction and
maintenance forces; survey crews; utility crews; responders to
incidents within the highway right-of-way; firefighters and other
emergency responders when they are not directly exposed to flame, fire,
heat, and/or hazardous materials; and law enforcement personnel when
directing traffic, investigating crashes, and handling lane closures,
obstructed roadways, and disasters within the right-of-way of a
3. Revise Sec. 634.3 to read as follows:
Sec. 634.3 Rule.
All workers within the right-of-way of a Federal-aid highway who
are exposed either to traffic (vehicles using the highway for purposes
of travel) or to construction equipment within the work area shall wear
high-visibility safety apparel. Firefighters or other emergency
responders working within the right-of-way of a Federal-aid highway and
engaged in emergency operations that directly expose them to flame,
fire, heat, and/or hazardous materials may wear retroreflective turn-
out gear that is specified and regulated by other organizations, such
as the National Fire Protection Association. Firefighters or other
emergency responders working within the right-of-way of a Federal-aid
highway and engaged in any other types of operations shall wear high-
visibility safety apparel.
[FR Doc. E8-27671 Filed 11-20-08; 8:45 am]
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