[Federal Register Volume 73, Number 226 (Friday, November 21, 2008)]
[Rules and Regulations]
[Pages 70593-70596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27671]



Federal Highway Administration

23 CFR Part 634

[FHWA Docket No. FHWA-2008-0157]
RIN 2125-AF28

Worker Visibility

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Interim Final Rule (IFR).


SUMMARY: The FHWA is revising its regulations to address safety 

[[Page 70594]]

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 http://www.regulations.gov, 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 http://DocketsInfo.dot.gov.

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 http://www.regulations.gov. 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: http://www.archives.gov 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

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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 
http://hdl.handle.net/2027.42/58734; University of Michigan, Ann 
Arbor, Transportation Research Institute (2008).

Section-by-Section Analysis

Section 634.2

    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.

Section 634.3

    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.

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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 
affect children.

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 
the environment.

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 
Unified Agenda.

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:


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 
Federal-aid highway.

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]