[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