[Federal Register Volume 74, Number 113 (Monday, June 15, 2009)]
[Rules and Regulations]
[Pages 28160-28161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13988]



Federal Highway Administration

23 CFR Part 634

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

Worker Visibility

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.


SUMMARY: The FHWA adopts as final an Interim Final Rule that amends its 
regulations to address safety concerns raised by the firefighting 
community regarding high-visibility safety apparel. The purpose of 
adopting the Interim Final Rule as final is to reflect the exemption of 
firefighters from the requirement to use high-visibility safety 
apparel, as defined in this rule, when they are exposed to hazardous 
conditions where the use of such apparel may increase the risk of 
injury to firefighter personnel.

DATES: Effective Date: June 15, 2009. The interim rule became effective 
November 24, 2008.

FOR FURTHER INFORMATION CONTACT: For technical information: Mr. Hari 
Kalla, Office of Transportation Operations, (202) 366-5915. For legal 
information: Mr. Raymond Cuprill, Office of Chief Counsel, (202) 366-
0791, Federal Highway Administration, 1200 New Jersey Avenue, SE., 
Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 
p.m., e.t., Monday through Friday, except Federal holidays.


Electronic Access and Filing

    This document, the Interim Final Rule, and all comments received 
may be viewed online through http://www.regulations.gov. Electronic 
submission and retrieval help and guidelines are available on the Web 
site. It is available 24 hours each day, 365 days each year. 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.


    The FHWA published an Interim Final Rule on 23 CFR Part 634 on 
November 21, 2008, at 73 FR 70593. Interested persons were invited to 
submit comments to FHWA Docket No. FHWA-2008-0157. The Interim Final 
Rule revised existing regulations to address safety concerns raised by 
the firefighting community in order to provide an exemption for 
firefighters actively engaged in emergency operations where they are 
directly exposed to flame, fire, heat and/or hazardous materials. This 
rule has been in effect since November 24, 2008.

Summary of Comments

    The FHWA received three comments to the docket from private 
individuals. The first commenter expressed his opinion that a statement 
contained in the background information of the Interim Rule created 
confusion and the false impression that a firefighter does not need to 
comply with the regulation if he is wearing an NFPA 1971 standard 
compliant garment. He recommended that this language be clarified to 
ensure the rule is interpreted correctly by all firefighters. The FHWA 
disagrees with this comment. The background information was included to 
justify the issuance of the Interim Final Rule due to safety concerns 
expressed by the firefighting community. However, the language in the 
Interim Final Rule is accurate and does not require modification.
    The second commenter supported the concept of the Interim Final 
Rule, but also expressed concern about the confusion that has resulted 
from the existence of several standards for high visibility garments 
and how they are being referenced in this rulemaking as well as a 
separate rulemaking in Docket No. FHWA-2007-28977. This rulemaking 
proposes to revise the 2003 edition of the Manual on Uniform Traffic 
Control Devices. This comment does not require any response to this 
docket, but rather it will be considered in the analysis of comments to 
Docket No. FHWA-2007-28977.
    The third commenter expressed the opinion that the Interim Final 
Rule should not have provided any exemptions for firefighters under any 
circumstances. In his opinion, the requirements contained in 23 CFR 634 
should, in the interest of safety, apply to all firefighters all the 
time. Prior to the issuance of this Interim Final Rule, the FHWA was 
made aware of several competing safety issues that could develop under 
certain conditions with the high visibility garments that are currently 
available, such as having the background material either catch fire or 
melt when exposed directly to fire. The FHWA, therefore, did issue the 
exemption for firefighters and other emergency workers when they are 
working under the conditions specifically listed in the Interim Final 
Rule. This exemption should provide a balance of increasing the 
visibility of the workers under most conditions, but not create a 
condition that could endanger them with other hazards.


    For the reasons stated above, the FHWA adopts as final the Interim 
Final Rule published on November 21, 2008, at 73 FR 70593.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

    The FHWA has determined that this final rule is not a significant 
regulatory action within the meaning of Executive Order 12866 and is 
not significant within the meaning of U.S. Department of Transportation 
regulatory policies and procedures. The economic impact of this 
rulemaking will be minimal. The final rule would not adversely affect, 
in a material way, any sector of the economy. In addition, the final 
rule would not interfere with any action taken or planned by another 
agency and would not materially alter the budgetary impact of any 
entitlements, grants, user fees, or loan programs. Consequently, a full 
regulatory evaluation is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612) the FHWA has evaluated the effects of this action on 
small entities and has determined that the action would not have a 
significant economic impact on a substantial number of small

[[Page 28161]]

entities. This action does not affect any funding distributed under any 
of the programs administered by the FHWA. For these reasons, the FHWA 
certifies that this action would not have a significant economic impact 
on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This final rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This rule would not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$128.1 million or more in any one year (2 U.S.C. 1532).

Executive Order 13132 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, and the FHWA has 
determined that this action would not have sufficient federalism 
implications to warrant the preparation of a federalism assessment. The 
FHWA has also determined that this action would not preempt any State 
law or State regulation or affect the States' ability to discharge 
traditional State governmental functions.

Executive Order 13211 (Energy Effects)

    We have analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use, dated May 18, 2001. We have determined that it is 
not a significant energy action under that order since it is not likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy. Therefore, a Statement of Energy Effects is not 

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501), 
Federal agencies must obtain approval from the Office of Management and 
Budget for each collection of information they conduct, sponsor, or 
require through regulations. The FHWA has determined that this rule 
does not contain collection of information requirements for the 
purposes of the PRA.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    The FHWA has analyzed this rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. The FHWA certifies that this action would not cause any 
environmental risk to health or safety that might disproportionately 
affect children.

Executive Order 12630 (Taking of Private Property)

    The FHWA has analyzed this rule under Executive Order 12630, 
Governmental Actions and Interface with Constitutionally Protected 
Property Rights. The FHWA does not anticipate that this action would 
affect a taking of private property or otherwise have taking 
implications under Executive Order 12630.

National Environmental Policy Act

    The agency has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has 
determined that this action would not have any effect on the quality of 
the environment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 23 CFR Part 634

    Design standards, Highways and roads, incorporation by reference, 
Traffic regulations, Workers.

In consideration of the foregoing, and under the authority of 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), the Interim Final Rule amending 23 CFR 
Part 634 that was published on November 21, 2008 at 73 FR 70593, is 
adopted as a final rule without change.

    Issued on: May 14, 2009.
Jeffrey F. Paniati,
Acting Deputy Federal Highway Administrator.
[FR Doc. E9-13988 Filed 6-12-09; 8:45 am]