Federal Register, Volume 71 Issue 226 (Friday, November 24, 2006)

[Federal Register Volume 71, Number 226 (Friday, November 24, 2006)]
[Rules and Regulations]
[Pages 67792-67800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-19910]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 634

[FHWA Docket No. FHWA-2005-23200]
RIN 2125-AF11

Worker Visibility

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: Pursuant to Section 1402 of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU),
this final rule establishes a policy for the use of high-visibility
safety apparel. The FHWA establishes a new Part in title 23, Code of
Federal Regulations (CFR) that requires the use of high-visibility
safety apparel and provides guidance on its application. This
rulemaking applies only to workers who are working within the rights-
of-way of Federal-aid highways. The FHWA is taking this action to
decrease the likelihood of fatalities or injuries to workers on foot
who are exposed either to traffic (vehicles using the highway for
purposes of travel) or to construction vehicles or equipment while
working within the rights-of-way of Federal-aid highways.

DATES: Effective Date: This final rule is effective November 24, 2008.
The incorporation by reference of the publication listed in this
regulation is approved by the Director of the Office of the Federal
Register as of November 24, 2008.

FOR FURTHER INFORMATION CONTACT: Mr. Hari Kalla, Office of
Transportation Operations, (202) 366-5915; or Mr. Raymond W. Cuprill,
Office of the Chief Counsel, (202) 366-0791, U.S. Department of
Transportation, Federal Highway Administration, 400 Seventh Street,
SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15
p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

This document, the notice of proposed rulemaking (NPRM), and all
comments received may be viewed online through the Document Management
System (DMS) at http://dms.dot.gov. The DMS is available 24 hours each
day, 365 days each year. Electronic submission and retrieval help and
guidelines are available under the help section of the Web site.
An electronic copy of this document may also be downloaded from the
Office of the Federal Register's home page at: http://www.archives.gov
and the Government Printing Office's Web page at: http://www.access.gpo.gov/nara.

Background

On April 24, 2006, at 71 FR 20925, the FHWA published a NPRM
proposing to establish a policy for the use of high-visibility safety
apparel for workers who are working within the Federal-aid highway
rights-of-way. This NPRM proposed regulations implementing the
requirements of 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 one 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 comment period for the NPRM closed on June 23, 2006.
There has been an increase in the amount of maintenance and
reconstruction of the nation's highways that is being accomplished in
stages while traffic continues to use a portion of the street or
highway for purposes of travel. This has resulted in an increase in the
exposure of workers on foot to high-speed traffic and a corresponding
increase in the risk of injury or death for highway workers.
High visibility is one of the most prominent needs for workers who
must perform tasks near moving vehicles or equipment. The need to be
seen by those who drive or operate vehicles or equipment is recognized
as a critical issue for worker safety. The sooner a worker in or near
the path of travel is seen, the more time the operator has to avoid an
incident. The FHWA recognized this fact and included language in the
2000 Edition of the Manual on Uniform Traffic Control Devices (MUTCD)
\1\ to address this issue. This text in the 2000 MUTCD led

[[Page 67793]]

some agencies to adopt policies and specifications requiring workers to
wear high-visibility vests or shirts on their highway projects. The
American National Standards Institute (ANSI) also released ANSI 107-
1999,\2\ a standard for high visibility garments.
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\1\ Manual on Uniform Traffic Control Devices (MUTCD) is
recognized as the national standard for all traffic control devices
installed on any street, highway, or bicycle trail open to public
travel. It is available at http://www.mutcd.fhwa.dot.gov.
\2\ ANSI 107-1999 is the nationally recognized standard for
high-visibility garments developed in conjunction with the
International Safety Equipment Association. Copies may be obtained
at: http://www.safetyequipment.org/hivisstd.htm.
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The FHWA recognized the need for a more specific recommendation and
included language to that effect in the 2003 Edition of the MUTCD. As a
result of the text in the 2003 MUTCD, many agencies have revised their
policies to require their employees to wear ANSI Class 2 safety apparel
at all times and they are revising their specifications to require
contractors' employees to wear compliant safety apparel also. Although
the text was made more specific in the 2003 MUTCD, it was still a
recommendation rather than a requirement and some agencies have,
therefore, not incorporated the use of high-visibility safety apparel
into their policies and contract documents.

Summary of Comments

The FHWA received 117 letters submitted to the docket, containing
over 300 individual comments. We received comments from State and local
police and sheriffs departments, State Departments of Transportation
(DOTs), city and county government agencies, consulting firms, private
industry, associations, other organizations, and individual private
citizens. The FHWA has reviewed and analyzed all the comments received.
The significant comments and summaries of the FHWA's analyses and
determinations are discussed below. General comments are discussed
first, followed by discussion of significant comments and adopted
changes in each of the individual sections of Part 634.

Discussion of General Comments

The FHWA received many comments in agreement with the proposed rule
to improve highway worker safety and the addition of Part 634 to title
23, CFR. The FHWA received positive comments from the Iowa, Missouri,
Nebraska, Ohio, West Virginia, and Wisconsin State Departments of
Transportation (DOTs), the legal counsel of the Western State DOTs
(representing ID, MT, ND, SD, and WY DOTs), the City of Thornton,
Colorado, and the Lake County, Illinois DOT. The American Association
of State Highway Transportation Officials (AASHTO), the American
Traffic Safety Services Association (ATSSA), the Associated General
Contractors of America, the International Safety Equipment Association
(ISEA), the Laborers' Health and Safety Fund of North America, the
International Union of Police Associations AFL-CIO, the Kansas Highway
Patrol, the Henderson, North Carolina Police Department, the Southern
Company (representing Alabama, Georgia, Gulf, and Mississippi electric
utility companies), the Advocates for Highway and Auto Safety, the
Alabama Struck-By Alliance, two sign manufacturers, and three private
citizens also provided positive comments regarding the intent of the
proposed rulemaking. The FHWA received one comment from the Associated
General Contractors, New York State Chapter, strongly opposed to the
proposed rulemaking, stating that it is overly broad.

Enforcing Compliance With the Rule

The Iowa, Minnesota, Virginia, West Virginia, and Wyoming DOTs, the
legal counsel of the Western State DOTs, and AASHTO all provided
comments opposed to the discussion in the NRPM regarding the
withholding of payments to States of Federal funds on Federal-aid
highway projects in order to achieve compliance with 23 CFR Part 634.
The discussion of FHWA's authority to withhold funds in the NPRM
was intended to describe the agency's lack of direct authority to
enforce high-visibility garment requirements on all workers on or in
close proximity to a Federal-aid highway and to preserve the
Occupational Safety and Health Administration's (OSHA's) authority over
such workers. It was not meant to signal the desire of the FHWA to
impose funding sanctions in all instances of possible non-compliance.
Therefore, it is not the FHWA's intent to impose funding sanctions on
Federal-aid recipients as a result of non-compliance with the high-
visibility garment requirements by workers not subject to those
recipients' control or jurisdiction. Also, the rule is not an unfunded
mandate; it is a requirement or standard applicable to highways that
receive Federal-aid, no different from other requirements or standards
applicable to these highways.
A summary of the significant comments for each section of 23 CFR
Part 634 is included in the following discussion.

Discussion of Comments Regarding Section 634.1 Purpose

Enhancing Worker Visibility Beyond the Use of High Visibility Clothing
The Virginia DOT commented that the proposed rule leaves out a key
part of the Section 1402 SAFETEA-LU directive by leaving out language
that addresses the requirement to ``* * * maintain the free flow of
vehicular traffic.'' The Virginia DOT believes that the wearing of
high-visibility apparel does not prevent vehicles or equipment from
striking workers in the roadway, and that other measures, such as
engineering controls, administrative controls, and/or work practices
provide greater opportunity for hazard mitigation and the free flow of
traffic, and should be implemented prior to using protective clothing.
The FHWA agrees that engineering and work practice controls are
important, and these are covered elsewhere in 23 CFR Part 630, Subpart
J. Also, the FHWA is working on a separate NPRM that proposes to revise
23 CFR Part 630 in response to section 1110 of SAFETEA-LU. This
proposed rule would address the use of law enforcement, positive
protection measures, and the installation and maintenance of temporary
traffic control devices. These measures should also improve worker
safety during construction and maintenance operations. High visibility
is one of the most prominent needs for workers who must perform tasks
near moving vehicles or equipment. The need to be seen by those who
drive or operate vehicles or equipment is recognized as a critical
issue for worker safety. Since workers must devote their attention to
completing their assigned tasks and might not completely focus on the
hazardous surroundings in which they are working, it is imperative that
the approaching motorist or equipment operator be able to see and
recognize the worker.
The Laborers' Health and Safety Fund of North America suggested
that worker visibility can also be enhanced by other means beyond high-
visibility garments, such as proper illumination during night work, the
use of back-up video cameras/radar systems on construction vehicles,
internal traffic control plans within work zones, and spotters to
improve the visibility of construction workers in work zones who could
be backed over by construction vehicles.
The FHWA agrees that there are other methods that are good
practice; however, it is appropriate to limit the scope of this rule to
enhancing worker visibility by requiring use of high-

[[Page 67794]]

visibility garments. This rule applies to all workers (as defined in
Section 634.2) in all situations within the public right-of-way and is
not limited to work zone applications.
Application to All Highways
The FHWA received several comments suggesting the requirement be
extended to all workers on all roadways. The State DOTs of Missouri,
Ohio, and Wisconsin, the Lake County, Illinois DOT, the National
Committee on Uniform Traffic Control Devices (NCUTCD), ATSSA, ISEA, the
International Union of Police Associations AFL-CIO, the Alabama Struck-
By-Alliance, and three equipment manufacturers suggested that the
language of this rule be added to the MUTCD in order to maintain
consistency of the use of high-visibility apparel on all roadways, and
to have broader access to the information.
The Wyoming DOT and the legal counsel of the Western State DOTs
agreed with the proposed language that limits the rule to Federal-aid
highways. The Iowa DOT suggested that the language of the rule only be
included in the MUTCD, and not as a new Part 634 of 23 Title CFR.
This rule is merely implementing Section 1402 of SAFETEA-LU, which
directed the Secretary of Transportation to issue regulations to
decrease the likelihood of worker injury and maintain the free flow of
vehicular traffic by requiring workers whose duties placed them on or
in close proximity to a Federal-aid highway to wear high-visibility
apparel. A revision to the MUTCD would be the appropriate process for
extending this requirement to all roads. This would require a separate
rulemaking effort. The FHWA will consider these comments as part of the
process for proposing amendments to the next edition of the MUTCD.

Discussion of Comments Regarding Section 634.2 Definitions

Definition of ``Close Proximity''
The Iowa DOT opposed including the entire Federal-aid highway
right-of-way in the rule. It believes that some workers are at the
extreme edges of the right-of-way when performing maintenance duties
and are not in close proximity to moving traffic or construction or
maintenance equipment, and that their duties could be more hazardous
when wearing Class 2 apparel, since it might snag on structures or
equipment.
The FHWA reinforces that the definition of ``highway'' in the MUTCD
includes the entire area within the right-of-way. Therefore, for the
purposes of Part 634, the FHWA interprets the rule to apply to all
workers who are within the public right-of-way of a Federal-aid
highway, since they all deserve the same safety considerations. The
rule does allow agencies the flexibility to add tear-away and/or other
garment design features as deemed appropriate to address specific work
environments. See additional discussion under Definition of ``high-
visibility safety apparel.''
Definition of ``Conspicuity''
Although originally included in the NPRM, the FHWA removes the
definition of the word ``conspicuity'' in the language of 23 CFR 634,
since the definition is not necessary as part of the rule. The word
``conspicuity'' as used in the definition of ``high-visibility
clothing'' is no different than its generally accepted definition,
which can be found in any dictionary.
Definition of ``High-Visibility Safety Apparel''
The FHWA received 28 comments regarding the definition of ``high-
visibility safety apparel.'' The legal counsel of the Western State
DOTs as well as ISEA, the Alabama Struck-By Alliance, the Advocates for
Highway and Auto Safety, and three equipment manufacturers agree that
high-visibility garments that meet the ANSI/ISEA 107-2004 \3\ Class 2
requirements provide the intended, appropriate visibility for highway
workers.
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\3\ ``American National Standard for High-Visibility Safety
Apparel and Headwear'', published by the International Safety
Equipment Association, 1901 N. Moore Street, Arlington, VA 22209
(http://www.safetyequipment.org).
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Allowing Flexibility in Choice of Garment Type
The Iowa DOT opposed the definition of ``high-visibility safety
apparel,'' stating that State DOTs should have the flexibility to make
their own determination of the specific work operations that require
the wearing of ANSI Class 2 apparel. In addition, the Iowa DOT
commented that the State DOTs should be allowed flexibility to make
their own determination of the specification requirements.
The Associated General Contractors of America and the Associated
General Contractors, New York State Chapter commented that the FHWA
should allow more flexibility in the choice of garments and allow
garments rated as less than Class 2. These commenters indicate that
Class 2 garments have not been shown to increase worker visibility
during the daytime, and the excessive heat conditions to which workers
are often exposed warrant the use of lighter-weight Class 1 garments.
The 2003 MUTCD requires all flaggers and recommends all other
workers in work zones to wear Class 2 during daytime operations. The
FHWA's discussions with State DOTs indicate that the majority of
States, including southern States, require their workers to wear ANSI
107-1999 Class 2 or Class 3 high-visibility garments. The FHWA is not
aware of any increase in heat-related illnesses due to Class 2 or Class
3 garments. The FHWA believes that Class 2 or Class 3 high-visibility
garments are appropriate for work environments on Federal-aid highways
The Southern Company, which represents electric utility companies
in the south, opposes the proposed rule stating that the type of high-
visibility garments that should be worn should depend upon the
situation in which the work is being performed, because the time of day
that the work is being performed, the exposure to various highway
speeds, and the periods of poor visibility resulting from weather and
nighttime work are quite variable. The company chose to adopt and use
the ANSI 107-1999 Class 3 garments based upon the reference to the ANSI
107-1999 standard in the 2003 MUTCD.
The FHWA believes that garments meeting the requirements set forth
in the ANSI 107-1999 Class 3 equal or exceed the requirements for the
ANSI 107-2004 Class 2 garment, and therefore meet the minimum
requirements contained in this rulemaking.
The Southern Company also requested that the FHWA recommend that
the ANSI/ISEA standards committee provide the electric utility industry
a forum to express its unique needs to protect utility personnel along
roadways while still incorporating high-visibility into garments
already required by other standards or to request consideration of
other alternatives. This request is beyond the scope of this
rulemaking.
Additionally, the Associated General Contractors (AGC) of America
commented that there is an OSHA regulatory requirement for tear-away
construction of vests so that workers do not get hung up on snags if
they must jump clear of dangerous situations. Since most Class 2 vests
do not meet the tear-away requirement, the AGC suggests there should be
some flexibility to use Class 1 garments instead.
The FHWA uses the Class 2 garment as a minimum based on the
conditions where they will be worn. The ANSI 107-2004 Class 2 standard
does not prohibit a tear-away feature on the garment. The standard
specifies the

[[Page 67795]]

amount of background and retro-reflective material required for each
class of garment, but leaves other design features open for agencies to
specify to meet special needs. The Illinois DOT, for example, has a
specification for a tear-away ANSI 107-2004 Class 2 garment that uses
Velcro fasteners on the shoulder and side seams to enable the wearer to
quickly remove the garment if it becomes tangled or snagged on
equipment.
The International Union of Police Associations AFL-CIO stated that
the ANSI Class 2 vest is not designed for the specific needs of law
enforcement personnel, and that the vest generally interferes with
police officers' unique needs to access articles on their duty belt
while on duty.
The FHWA recognizes this concern and has modified the final rule to
include an exemption for law enforcement officers engaged in law
enforcement activities, such as traffic stops and pursuit and
apprehension of suspects. See additional discussion under Definition of
``Worker''--Law Enforcement.
The New York State DOT (NYSDOT) opposes the use of Class 3 apparel
and is a strong proponent of Class 2 apparel for night work and for
those who perform traffic control. The NYSDOT states that it is not
practical to wear Class 3 apparel at all times, especially near
specialized equipment and during extreme hot weather conditions where
workers are not exposed to traffic or night conditions, and that Class
2 provides very good conspicuity. The NYSDOT suggests that high-
visibility apparel be defined as clothing that meets the Performance
Class 2 requirements of ANSI 107-2004 colors of yellow-green, orange-
red, or red. The NCUTCD also recommended that the language be revised
to ``all apparel with a minimum of Class 2 risk exposure.''
The FHWA reiterates that the final rule requires Class 2 or Class 3
type garments. The requirement in the rule is not limited to only Class
3.
Class 2 Garments With Supplemental Features
The Laborers' Health and Safety Fund of North America agreed with
the proposed definition, but felt that the rule should extend to
include Class 2 garments supplemented by active illumination.
The FHWA believes that it is appropriate to reference the ANSI
standard, since it is currently the only recognized standard for high-
visibility garments. There are no performance standards for garments
containing active illumination technologies at this time.
The Laborers' Health and Safety Fund of North America also
suggested that the FHWA should require that workers wear reflective
material on arms, hands, or legs that continually move in order to
easily identify them as persons, as opposed to barrels or cones.
The FHWA agrees that added retroreflective material on arms, hands
or legs could increase the visibility of workers in some cases and
believes the rule provides agencies with the flexibility to use Class 3
garments, or additional reflective bands for arms and legs.
Class 3 Garments
The Caltrans Safety in Work Zones Task Force suggested that ANSI
Class 3 safety vests and apparel should be required for all employees
at all times working in the dynamic transportation environment.
The FHWA believes that Class 2 or Class 3 high-visibility garments
are appropriate for work environments on Federal-aid highways. These
are minimum requirements and do not prohibit agencies from adopting
more stringent requirements.
Impending ANSI/ISEA Standard for a Public Safety Vest
The National Traffic Incident Management Coalition, the Florida
Highway Patrol, and the International Safety Equipment Association
(ISEA) strongly recommend that the policy recognize the impending ANSI/
ISEA standard for a Public Safety Vest (ANSI 107-200x). The proposed
Public Safety Vest standard, which is currently open for public
comment, maintains a similar amount of visible material prescribed by
the ANSI 107-2004 Class 2, but allows for specific public safety
responder needs and will help facilitate the procurement process for
State and local agencies.
The FHWA appreciates the on-going development of the ANSI/ISEA
Standard for a Public Safety Vest; however, a proposed standard cannot
be referenced in this rulemaking. However, the FHWA might consider
revising this rule once these standards go into effect.
Enhancements to Garments and Color Choice
The City of Thornton, Colorado suggested that several enhancements
be included in the definition of ``high-visibility safety apparel''
that include placing identification panels and different color-coded
reflective stripes on the high-visibility apparel to help identify the
wearer's agency, especially at incident management scenes where
multiple agencies respond.
The FHWA reiterates that this rule is to improve worker visibility.
The addition of identification panels does not have an impact on worker
visibility. Furthermore, agencies have flexibility to add reflective
identification panels on Class 2 or Class 3 high-visibility garments.
An equipment manufacturer suggested that the color ``lime green''
be used for all safety apparel.
ANSI Standard 107-2004 for Class 2 or Class 3 permits lime green,
orange, or a combination of these two colors. Agencies have flexibility
to specify either of these colors or a combination.
Definition of ``Workers''
The FHWA received many comments regarding the definition of
``workers,'' including requests that certain classes of individuals be
included or excluded in the definition.
The Advocates for Highway and Auto Safety (AHAS) generally agree
with the definition; however, it also recommended that the definition
be expanded to include a serial listing of examples of vulnerable
workers within highway rights-of-way in order to reduce doubts or
remove ambiguity concerning the classes of individuals who are required
to wear high-visibility apparel. The AHAS suggests adding vehicle
service responders such as tow truck drivers or other roadside vehicle
service responders, media representatives when covering news events or
similar actions within highway rights-of-way, military personnel when
on foot, and commercial drivers on foot within the right-of-way who are
with disabled trucks or motor coaches.
The FHWA believes that the term ``responders to incidents'' is
inclusive of a majority of the groups identified in this comment,
including media representatives.
The Ohio DOT suggests that the definition of ``workers'' be
refined, since there are various jobs that workers might have within
the right-of-way, such as working with wood chippers or other equipment
with moving parts, where a loose garment such as a safety vest could
pose a potential hazard.
The FHWA believes the definition of workers includes all workers
whose duties place them within the right-of-way. The high-visibility
garments can be fitted properly and be designed with tear-away features
to minimize the risk of becoming entangled in equipment. See previous
discussion under the heading ``Allowing Flexibility in Choice of
Garment Type''

[[Page 67796]]

Volunteers Working Within the Right-of-Way of Federal-Aid Highways
The Virginia DOT opposes the definition of ``worker'' encompassing
both personnel being paid for duties as well as personnel volunteering
for duties along the highway, such as Adopt-A-Highway volunteers
picking up litter. Extending the definition to include volunteers would
significantly increase the cost of safety vests that the Virginia DOT
supplies to volunteers.
The FHWA reiterates that the rule applies to all workers, whether
paid or volunteer, who are within the rights-of-way of Federal-aid
highways. The Adopt-A-Highway volunteers are exposed to traffic while
doing the cleanup duties within the right-of-way and should be afforded
the same measure of safety as other workers. These workers should
already have high visibility garments, therefore, compliance with this
rule would require upgrading of the existing garments. The two-year
compliance period has been provided to minimize the financial impacts
to the agencies. Additionally, States and local agencies may use
funding available under Section 402 of Chapter 4 of Title 23, the State
and Community Highway Safety Grant Program, to purchase or replace
high-visibility garments for worker safety when this purchase is part
of an eligible Section 402 highway safety project included in the
State's approved highway plan.
Scheduled Workers
The legal counsel for the Western State DOTs recommended specific
wording to change the definition of ``workers'' to focus the rule on
those who use the highway right-of-way on a planned and scheduled
basis, not on an erratic basis. The legal counsel's opinion is that
this would alleviate some of the concerns expressed by the law
enforcement community, and would be consistent with Section 6D.03 of
the MUTCD.
The FHWA believes that the rule should also encompass those workers
whose duties cannot be scheduled, such as responders to incidents. High
visibility is one of the most prominent safety needs for workers who
must perform tasks near moving vehicles or equipment. The sooner a
worker in or near the path of travel is seen, the more time the
operator has to avoid an incident.
Postal Carriers and Delivery Truck Drivers
The National Traffic Incident Management Coalition and a private
citizen opposed the definition of ``worker,'' stating that it would
have the unintended consequence of applying the rule to persons who are
not intended to be covered, such as postal letter carriers, delivery
truck drivers, etc. They suggested specific language to reword the
definition, including deleting the last phrase of the definition, ``any
other personnel whose duties put them on Federal-aid highway right-of-
way,'' and substituting ``such as'' for ``including.''
The FHWA agrees with these editorial changes, and revises the text
in the final rule to specify more clearly the types of workers that are
covered by the definition.
Government Employees and Contractors
The Nebraska Department of Roads supports the rule for their own
employees and contractors; however, it opposes extending the rule to
those workers not under the Department's direct authority, such as
utility crews, responders to incidents, and law enforcement personnel.
The FHWA believes that all workers within the public right-of-way
of Federal-aid highways deserve the same safety considerations.
Additionally, Section 1402 of SAFETEA-LU, directed the Secretary of
Transportation to issue regulations requiring workers whose duties
place them on or in proximity to a Federal-aid highway to wear high-
visibility apparel. The SAFETEA-LU provision does not distinguish
between State DOT workers or utility crews or law enforcement officers.
Surveyors
The California DOT commented that retroreflective material used
near survey prisms as part of Electronic Distance Meter (EDM)
technology can result in erroneous measurements, and therefore increase
the time required for surveyors to perform their work while exposed to
traffic conditions. As a result, the California DOT suggests adding
language to the rule to exempt surveyors from wearing retroreflective
material during daylight hours that causes interference with survey
instruments, otherwise surveyors must comply with the high-visibility
safety apparel specifications.
Surveying activities often occur well in advance of other work zone
activities. The surveyors are often on or near the roadway without the
benefit of extensive temporary traffic control devices. They will
normally use one advance warning sign and strobe lights on their
vehicle to alert approaching vehicles of their presence. Therefore, the
FHWA believes that surveyors should be subjected to the same
regulations as other workers within the public right-of-way of Federal-
aid highways. The FHWA recognizes that the retroreflective material on
high-visibility garments, in some cases, might cause operational
difficulty. The FHWA believes, however, that surveying procedures can
be modified that will minimize the chance of the reflective stripe on
the garment introducing errors in the measurements taken with these
instruments.
Responders to Incidents
The Lake County, Illinois DOT, the Blue Township, Kansas Fire-
Rescue, and a fire equipment company all supported including first
responders, such as emergency medical services (EMS) and fire
department personnel in the definition of ``workers.''
The Iowa DOT opposed this inclusive definition, stating that the
requirement to wear an additional layer of apparel over their existing
apparel might be hazardous to some professionals, such as fire
fighters. The Missouri and Wisconsin DOTs also opposed this inclusive
definition, stating that the policy should not be mandatory for
incident responders, and that there might be some justifiable reasons
as to why some entities do not wear high-visibility apparel. Similarly,
the Virginia DOT opposed the definition, since it interprets the policy
to encompass both personnel being paid for duties as well as personnel
volunteering for duties along the roadway, such as a rescue volunteer.
AASHTO suggested adding flexibility to the rule to encourage EMS
personnel to wear high-visibility clothing when in work zones and in
proximity to construction vehicles or equipment, but not mandate it for
all occasions whenever they are outside of their vehicle.
The FHWA believes that all workers within the public right-of-way
of Federal-aid highways deserve the same safety considerations. High
visibility is one of the most prominent needs for workers who must
perform their tasks near moving vehicles or equipment. The need to be
seen by those who drive or operate vehicles or equipment is recognized
as a critical issue for worker safety. Workers, including responders to
incidents, must devote their attention to completing their assigned
tasks and might not completely focus on the hazardous surroundings
where they are working. It is imperative that the approaching motorist
or equipment operator be able to see and recognize the worker. The
sooner a worker in or near

[[Page 67797]]

the path of travel is seen, the more time the operator has to avoid an
accident.
The ISEA is in the final stages of publishing a new standard that
establishes performance criteria for high-visibility vests for the
public safety sector. Accordingly, the ISEA requests that the FHWA
consider permitting the use of garments that meet an equivalent
standard to ANSI/ISEA 107-2004 for workers in the fire service only
while working on Federal-aid highways.
An equipment manufacturer opposes the ruling, stating that there
are some Class 1 garments that would be more compatible with the
occupational environment faced by some emergency responders than the
Class 2 or Class 3 apparel mandated in the proposed rule. In addition,
the equipment manufacturer suggests that due to the competing hazards
that exist for workers, such as heat and flame, that the FHWA 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.
The FHWA acknowledges that the incident response community has been
working with the ANSI staff to develop a garment that will meet both
the visibility requirements and allow access to the necessary equipment
carried by incident responders. The ANSI/ISEA Standard for Public
Safety Vest (ANSI 207-200X) is under development at this time.
Therefore this impending standard cannot be referenced in this rule.
However, the FHWA might consider revising this rule once these
standards go into effect. Additionally, the ANSI 107-2004 standard
specifies the amount of background and retroreflective material
required for each class of garment, but leaves other design features
open for agencies to specify to meet special needs. 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.
Law Enforcement
The FHWA received 175 comments to the docket regarding the
implications of this rule on law enforcement personnel. The Advocates
for Highway and Auto Safety, the Northern Kentucky University Police,
and an equipment manufacturer supported the inclusion of law
enforcement personnel who are working on Federal-aid highways as
workers who should wear high-visibility apparel. The Advocates for
Highway and Auto Safety's comments state that law enforcement personnel
who are involved in situations involving criminal activity should be
included in the policy, since claims that high-visibility garments
would cause them to be a greater target are not documented, and that
law enforcement should have the same protection as other professions
when working adjacent to a highway where the risk of being struck by a
vehicle is high.
Overarching comments from State and local police, national police
organizations, and State DOTs indicated a strong need for recognizing
the many roles that law enforcement personnel serve when working on
highways. In particular, the commenters were concerned about law
enforcement officers wearing high-visibility clothing while performing
duties (such as routine traffic stops or searches and manhunts) that
often place them in an adversarial or confrontational role, such as
apprehending suspects, stolen vehicles, illicit drugs, or a vehicle
occupant who turns out to be wanted for a serious felony and is armed
and dangerous. As a result, many of these organizations commented that
the rulemaking needed to allow more flexibility for law enforcement to
determine, based on their own standard operating procedures, when it
was appropriate to use high-visibility clothing. Their primary concern
was that a highly-reflective garment would make them a better target if
a gunfight develops, especially in nighttime conditions.
The FHWA agrees with the law enforcement comments' assertion that
the role of police differs significantly from that of other persons
whose duties require them to work in and around the highway. Therefore,
the FHWA modifies the definition of worker to limit the high-visibility
garment requirement for law enforcement personnel to those duties that
involve directing traffic, investigating crashes, and handling lane
closures, obstructed roadways, and disasters within the right-of-way of
a Federal-aid highway.
Other Governmental Departments
The City of Thornton, Colorado suggested that the definition of
``worker'' be expanded to include the Department of Homeland Security,
since responders that are part of the National Incident Management
System and the Incident Command System are called into duty during
certain incidents, and should have the same visibility on Federal-aid
highways.
The FHWA believes that this rule applies to all workers whose
duties place them within the right-of-way, including responders to
incidents and disasters within the right-of-way of a Federal-aid
highway.
Temporary Traffic Control Zones
The NCUTCD agreed with the definition of ``workers'' that includes
all persons at a traffic incident scene or within a traffic control
zone, including, but not limited to, police, fire, EMS, utility, media,
and tow operators exposed to risks of moving roadway traffic or
construction equipment.
Virginia DOT expressed confusion with the proposed rule, stating
there was inconsistency in the proposed rule because it was unclear as
to whether it applied only to workers in temporary traffic control
zones or to all workers who are outside of their vehicle on a Federal-
aid highway. The Virginia DOT believes that the definition of the word
``workers,'' should only apply to workers within temporary traffic
control zones.
The FHWA reiterates that the purpose of this rule is to improve the
visibility of all workers to motorists using the facility, so the
garments should be worn any time the workers could be exposed to
traffic. The FHWA revises the language in the final rule to clarify
that the requirement applies to all workers within the right-of-way on
Federal-aid highways and is not limited to temporary traffic control
areas.

Discussion of Comments Regarding Section 634.3 Rule

Financial Impact
Although one private citizen agreed that wearing high-visibility
safety apparel is an inexpensive and proven technique to aid in the
protection of road workers, the Associated General Contractors (New
York State Chapter), the West Virginia DOT, the Tennessee Highway
Patrol, and the New York State Police all commented that the financial
impact of the rulemaking would be more expensive than outlined in the
NPRM.
States and local agencies may use funding available under Section
402 of Chapter 4 of Title 23, the State and Community Highway Safety
Grant Program, to purchase or replace high-visibility garments for
worker safety when this purchase is part of an eligible Section 402
highway safety project included in the State's approved highway plan.
In order to minimize the financial impacts of this new part, the
FHWA establishes an effective date of two years from the date the final
rule is published in the Federal Register. The two-year compliance
period should provide

[[Page 67798]]

agencies, incident responders, and contractors sufficient time in most
cases to react to the adoption of these new requirements by purchasing
garments that comply with the new standard as they replace garments
that have already reached the end of their useful service life. The
FHWA research into the service life of the high-visibility garments
that are currently in use indicates that the useful service life of the
vests depends greatly on the type of activities in which the workers
are engaged while wearing the garments. The useful life of garments
that are worn on a daily basis is approximately six months. Garments
that are not worn on a daily basis are expected to have a useful
service life of up to three years. The FHWA realizes that there might
be some variation in the useful service life of these garments based on
the care provided.
Length of Compliance Period
The legal counsel of the Western State DOTs agrees with the
compliance date of two years from the date the final rule is published
in the Federal Register. The legal counsel suggests that the compliance
date be included in the text of Part 634. The FHWA agrees and the
compliance date is included in the text of Part 634.
Because of the serious nature and number of fatal and non-fatal
accidents, ISEA requests that the compliance date not exceed one year
from the effective date of the final rule.
The FHWA believes that the two-year compliance period is
appropriate to allow all agencies and contractors, including those who
have not already upgraded their safety apparel, time to react to the
regulation.

FHWA Action

The FHWA adds a new part to the CFR to implement this statutory
requirement. The FHWA adds a new part to Title 23, CFR that requires
workers whose duties place them on or in close proximity to a Federal-
aid highway to wear high-visibility safety apparel rather than to
include such a requirement in the MUTCD. The FHWA is also considering
whether to propose to include these requirements in the next edition of
the MUTCD. Although the MUTCD is incorporated by reference at 23 CFR
655.601(a), it applies to all streets and highways open to the public,
which is much broader than the requirement in SAFETEA-LU, which applies
only to workers whose duties place them on or in close proximity to
Federal-aid highways.

Executive Order 12866 (Regulatory Planning and Review) and U.S. 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 or
significant within the meaning of the U.S. Department of Transportation
regulatory policies and procedures. The economic impact of this
rulemaking is minimal.
As a result of the text in the 2003 MUTCD, many agencies have
revised their policies to require their employees to wear ANSI Class 2
safety apparel at all times when they are working within the Federal-
aid highway right-of-way and are revising their specifications to also
require contractors' employees to wear compliant safety apparel when
working within the right-of-way. In addition, in recognition of its
risk management value, many contractors have begun to provide their
workers with high-visibility safety apparel and to require its use on
their projects, regardless of whether it is required by the contract
language.
The FHWA has researched the current practice regarding the use of
high-visibility safety apparel in construction and maintenance work
zones in 30 States. This research revealed that more than 90 percent
(28 out of 30) of these State DOTs have already adopted policies that
require highway construction and maintenance workers (including their
own employees and contractors' employees) in highway work zones to wear
high-visibility safety apparel. Most of these agencies specify the ANSI
Class 2 standard and are furnishing them for their own employees.
Therefore, a large majority of the State DOTs are already in compliance
with the requirements of this regulation.
According to the U.S. Department of Labor, Bureau of Labor
Statistics, there are approximately 350,000 workers involved in highway
construction activities nationwide at any given time.\4\ The FHWA's
research indicates that a large majority (more than 90 percent) of
States have already adopted high-visibility garment policies in
accordance with the 2003 MUTCD. Therefore, the estimated economic
impact for contractors will be the purchase of approximately 35,000
garments at $25.00 \5\ each for a total of $875,000. This cost will be
borne across many agencies, and the impact to each agency individually
would be minimal. In order to further minimize the financial impacts of
this new part, the FHWA establishes a compliance date for Part 634 that
is two years from the date the final rule is published in the Federal
Register.
---------------------------------------------------------------------------

\4\ U.S. Department of Labor Bureau of Labor Bureau Statistics
maintains records on the numbers of workers involved in the highway
construction industry. The statistics may be viewed at: http://ww/
bls.gov.
\5\ The FHWA researched the price of high-visibility garments
with manufacturers. This figure represents an average cost that an
agency or contractor can expect to pay for an ANSI Class 2 garment.
---------------------------------------------------------------------------

Each year more than 100 workers are killed and over 20,000 are
injured in the highway and street construction industry. The FHWA
believes that this rule will help reduce these numbers. Improved
visibility of workers within the Federal-aid highway right-of-way would
reduce these numbers. The FHWA research into the service life of the
high-visibility garments that are currently in use has shown that the
useful service life of the vests depends greatly on the type of
activities in which the workers are engaged while wearing the garments.
The useful service life of garments that are worn on a daily basis is
approximately six months. Garments that are not worn on a daily basis
are expected to have a useful service life of up to three years.
Therefore, the two-year compliance period should provide agencies and
contractors sufficient time in most cases to react to the adoption of
these new requirements by purchasing garments that comply with the new
standard as they replace garments that have already reached the end of
their useful service life.
The FHWA believes there will also be a minimal economic impact to
the incident responder community, such as law enforcement agencies and
fire departments. This regulation requires these agencies to supply
their personnel with high-visibility safety apparel for use on Federal-
aid highway rights-of-ways. The FHWA sought comments during the public
comment period in order to fully assess the magnitude of the economic
impact that this new part will have on the incident response and law
enforcement communities. The Tennessee Highway Patrol and the New York
State Police both commented that the financial impact of the rulemaking
would be more expensive than outlined in the NPRM. The majority of
comments received from the law enforcement community, including the
International Chiefs of Police, indicated that most law enforcement
agencies have furnished patrol officers with high-visibility garments
and have established policies and procedures for their use.
Therefore, the FHWA believes that the two year compliance period
will allow

[[Page 67799]]

these agencies to, if needed, replace their existing garments to comply
with the new standard. Additionally, States and local agencies may use
funding available under Section 402 of Chapter 4 of Title 23, the State
and Community Highway Safety Grant Program, to purchase high-visibility
garments for worker safety when this purchase is part of an eligible
Section 402 highway safety project included in the State's approved
highway plan.
These changes will not adversely affect, in any material way, any
sector of the economy. In addition, these changes will 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 (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this final rule on small
entities. This action requires all workers to wear high-visibility
safety apparel when on the right-of-way of Federal-aid highways. The
results of the FHWA's research indicated that more than 90 percent of
the States have adopted policies that require the use of high-
visibility safety apparel in construction and maintenance (including
their own employees and contractors' employees) in highway work zones.
Most of these agencies specify the ANSI Class 2 standard and are
furnishing them for their own employees. The FHWA believes that many
local agencies have also adopted this policy because the FHWA's
research indicates that usually local agencies follow States' policies
with respect to MUTCD standards and guidance. Also, the rule only
applies to Federal-aid highway rights-of-way and the FHWA's research
shows that the number of miles of Federal-aid highways that are under
the jurisdiction of small entities makes up only approximately 25
percent of the total number of miles on the Federal-aid highway
system.\6\
---------------------------------------------------------------------------

\6\ U.S. Department of Transportation, Federal Highway
Administration Highway Statistics. This information is available at:
http://www/fhwa.dot.gov/policy/ohim/hs03.
---------------------------------------------------------------------------

Therefore, the FHWA has determined that the rule will not have a
significant economic impact on a substantial number of small entities.
The majority of comments received from the law enforcement
community, including the International Chiefs of Police, indicated that
most law enforcement agencies have furnished patrol officers with high-
visibility garments and have established policies and procedures for
their use. Therefore, the FHWA believes that the 2-year compliance
period will allow these agencies to, if needed, replace their existing
garments to comply with the new standard. Additionally, States and
local agencies may use funding available under Section 402 of Chapter 4
of Title 23, the State and Community Highway Safety Grant Program, to
purchase high-visibility garments when this purchase is part of an
eligible Section 402 highway safety project included in the State's
approved highway plan. Therefore, the economic impact to the law
enforcement community will be minimal.

Unfunded Mandates Reform Act of 1995

This rule does not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995,
109 Stat. 48). This rule does 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 period to comply with
these requirements.
Additionally, the definition of ``Federal mandate'' in the Unfunded
Mandate Reform Act excludes financial assistance of the type in which
State, local, or tribal governments have authority to adjust their
participation in the program in accordance with changes made in the
program by the Federal Government. The Federal-aid highway program
permits this type of flexibility to the States.

Executive Order 13132 (Federalism)

This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 dated August 4, 1999, and
the FHWA has determined that this final rule will not have a
substantial direct effect or sufficient federalism implications on
States that would limit the policymaking discretion of the States and
local governments. The FHWA has also determined that this rulemaking
does not preempt any State law or State regulation or affect the
States' ability to discharge traditional State governmental functions
and does not have sufficient federalism implications to warrant the
preparation of a federalism assessment. The requirements are in keeping
with the Secretary of Transportation's authority under 23 U.S.C.
109(d), 315, and 402(a) to promulgate uniform guidelines to promote the
safe and efficient use of highways.

Executive Order 13175 (Tribal Consultation)

The FHWA has analyzed this action under Executive Order 13175,
dated November 6, 2000, and believes that it will not have substantial
direct effects on one or more Indian tribes, will not impose
substantial direct compliance costs on Indian tribal governments, and
will not preempt tribal law. The purpose of this rule is to improve
visibility of workers within the Federal-aid highway right-of-way to
increase the safety of these workers, and does not impose any direct
compliance requirements on Indian tribal governments and does not have
any economic or other impacts on the viability of Indian tribes.
Therefore, a tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

The FHWA has analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The FHWA has determined that this is not a
significant energy action under that order because it is not a
significant regulatory action under Executive Order 12866 and is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, a Statement of Energy
Effects under Executive Order 13211 is not required.

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, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. The FHWA has
determined that this action does not contain a collection of
information requirement 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

[[Page 67800]]

Executive Order 12988, Civil Justice Reform, to minimize litigation, to
eliminate ambiguity, and to reduce burden.

Executive Order 13045 (Protection of Children)

The FHWA has analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This is not an economically significant action and does not
concern an environmental risk to health or safety that might
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

This action will not affect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.

National Environmental Policy Act

The agency has analyzed this proposed action for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
has determined that it will 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 18, 2006.
J. Richard Capka,
Federal Highway Administrator.

0
In consideration of the foregoing, the FHWA adds part 634 to Title 23,
Code of Federal Regulations, as follows:

PART 634--WORKER VISIBILITY

Sec.
634.1 Purpose.
634.2 Definitions.
634.3 Rule.
634.4 Compliance date.

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).

Sec. 634.1 Purpose.

The purpose of the regulations in this part is to decrease the
likelihood of worker fatalities or injuries caused by motor vehicles
and construction vehicles and equipment while working within the right-
of-way on Federal-aid highways.

Sec. 634.2 Definitions.

Close proximity means within the highway right-of-way on Federal-
aid highways.
High-visibility safety apparel means personal protective safety
clothing that is intended to provide conspicuity during both daytime
and nighttime usage, and that meets the Performance Class 2 or 3
requirements of the ANSI/ISEA 107-2004 publication entitled ``American
National Standard for High-Visibility Safety Apparel and Headwear.''
This publication is incorporated by reference in accordance with 5
U.S.C. 552(a) and 1 CFR Part 51 and is on file at the National Archives
and Records Administration (NARA). For information on the availability
of this material at NARA, call (202) 741-6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. It is available for inspection and copying at the
Federal Highway Administration, 400 Seventh Street, SW., Room 4232,
Washington, DC, 20590, as provided in 49 CFR Part 7. This publication
is available for purchase from the International Safety Equipment
Association (ISEA) at 1901 N. Moore Street, Suite 808, Arlington, VA
22209, http://www.safetyequipment.org.
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, 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.

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.

Sec. 634.4 Compliance date.

States and other agencies shall comply with the provisions of this
Part no later than November 24, 2008.

[FR Doc. E6-19910 Filed 11-22-06; 8:45 am]
BILLING CODE 4910-22-P