Worker Visibility, 70593-70596 [E8-27671]
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Federal Register / Vol. 73, No. 226 / Friday, November 21, 2008 / Rules and Regulations
rule. First, this final rule increases the
current $10,000 civil penalty amount to
$11,000 for violations of most
provisions of Chapter 401, including the
anti-discrimination provisions of
section 401217 (general provision) and
41705 (discrimination against the
disabled), and rules and orders issued
under those provisions. Second, this
final rule raises the current $5,000 civil
penalty amount to $5,500 for violations
of section 41719 regarding essential air
service and consumer protection rules
or orders issued under that section. The
current maximum civil penalty of
$2,500 for violations of section 41712
(unfair and deceptive practices and
unfair methods of competition) is not
being raised because of the rounding
provision discussed above. Finally, the
final rule makes a number of nonsubstantive editorial changes for clarity.
Regulatory Analyses and Notices
The Administrative Procedure Act
(APA) (5 U.S.C. 553) provides an
exception to the notice and comment
procedures when an agency finds there
is good cause for dispensing with such
procedures when they are
impracticable, unnecessary or contrary
to the public interest. We find that
under 5 U.S.C. 553(b)(3)(B) good cause
exists for dispensing with the usual
requirements for notice and public
comment. This rulemaking is a
ministerial action required the Debt
Collection Improvement Act of 1996
and the Federal Civil Penalties Inflation
Adjustment Act of 1990. It is based on
a statutory formula. Accordingly, we
find that opportunity for notice and
comment is unnecessary and contrary to
the public interest, and we are issuing
these updates as a final rule.
dwashington3 on PRODPC61 with RULES
Executive Order 12866
This final rule has been evaluated in
accordance with existing policies and
procedures and is considered not
significant under Executive Order 12866
or DOT’s Regulatory Policies and
Procedures. The rule has not been
reviewed by the Office of Management
and Budget (OMB) under Executive
Order 12866. The provisions are
required by current regulatory language,
without interpretation.
Regulatory Flexibility Act
In addition, we must prepare a
regulatory flexibility analysis that is
consistent with the Regulatory
Flexibility Act (5 U.S.C. 601–602)
unless we certify that a regulation will
not have a significant economic impact
on a substantial number of small
entities. In this case the revision of the
civil penalty amounts will raise
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potential penalties for all aviation
businesses; however, there are special
reduced penalties for individuals and
small businesses with regard to specific
kinds of violations. With respect to two
categories of violations committed by
small businesses and individuals, the
inflation adjustment results in no
change. Those two categories are the
general civil penalty amount of $1,100
and civil penalty of $2,500 for violations
of 49 U.S.C. 41712, prohibiting unfair
and deceptive business practices and
unfair methods of competition. A third
category of penalty applicable to small
businesses, for violations of 49 U.S.C.
41719, does increase from $5,000 to
$5,500 as a result of the inflation
adjustment made by this rulemaking.
Violations of this provision, having to
do with essential air service
requirements, are rare and should affect
few, if any, small businesses. Violations
of most provisions of Chapter 401
increase from $10,000 to $11,000. The
aggregate economic impact of this
rulemaking on small entities should be
minimal. Therefore, we certify that this
final rule will not have a significant
economic impact on a substantial
number of small entities, and that a
regulatory flexibility analysis is not
required for this rulemaking.
Paperwork Reduction Act
This final rule imposes no new
reporting or record keeping
requirements necessitating paperwork
clearance by OMB.
Unfunded Mandates Reform Act of 1995
OST has determined that the
requirements of Title II of the Unfunded
Mandates Reform Act of 1995, as
amended, do not apply to this
rulemaking.
List of Subjects
14 CFR Part 383
Administrative practice and
procedures; Penalties.
■ Accordingly, the Department of
Transportation revises 14 CFR part 383
to read as follows:
PART 383—CIVIL PENALTIES
Sec.
383.1
383.2
Purpose and Periodic Adjustment.
Amount of Penalty.
Authority: Sec. 503, Public Law 108–176,
117 Stat. 2490; Public Law 101–410, 104 Stat.
890; Public Law 104–134, § 31001.
§ 383.1
Purpose and Periodic Adjustment.
(a) Purpose. This part adjusts the civil
penalty liability amounts prescribed in
49 U.S.C. 46301(a) for inflation in
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70593
accordance with the Acts cited in
paragraph (b) of this section.
(b) Periodic Adjustment. DOT will
periodically adjust the maximum civil
penalties set forth in 49 U.S.C. 46301
and this part as required by the Federal
Civil Penalties Inflation Adjustment Act
of 1990 and the Debt Collection
Improvement Act of 1996.
§ 383.2
Amount of penalty.
Civil penalties payable to the U.S.
Government for violations of Title 49,
Chapters 401 through 421, pursuant to
49 U.S.C. 46301(a), are as follows:
(a) A general civil penalty of not more
than $27,500 (or $1,100 for individuals
or small businesses) applies to
violations of statutory provisions and
rules or orders issued under those
provisions, other than those listed in
paragraph (b) of this section, (see 49
U.S.C. 46301(a)(1));
(b) With respect to small businesses
and individuals, notwithstanding the
general $1,100 civil penalty, the
following civil penalty limits apply:
(1) A maximum civil penalty of
$11,000 applies for violations of most
provisions of Chapter 401, including the
anti-discrimination provisions of
sections 40127 (general provision), and
41705 (discrimination against the
disabled) and rules and orders issued
thereunder (see 49 U.S.C. 46301(a)(5)
(A));
(2) A maximum civil penalty of
$5,500 applies for violations of section
41719 and rules and orders issued
thereunder (see 49 U.S.C.
46301(a)(5)(C)); and
(3) A maximum civil penalty of
$2,500 applies for violations of section
41712 or consumer protection rules or
orders (see 49 U.S.C. 46301(a)(5)(D)).
Issued in Washington, DC on November 14,
2008.
Mary E. Peters,
Secretary.
[FR Doc. E8–27774 Filed 11–20–08; 8:45 am]
BILLING CODE 4910–9X–P
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 634
[FHWA Docket No. FHWA–2008–0157]
RIN 2125–AF28
Worker Visibility
Federal Highway
Administration (FHWA), DOT.
ACTION: Interim Final Rule (IFR).
AGENCY:
SUMMARY: The FHWA is revising its
regulations to address safety concerns
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Federal Register / Vol. 73, No. 226 / Friday, November 21, 2008 / Rules and Regulations
raised by the firefighting community
regarding high-visibility safety apparel.
Due to imminent safety implications to
firefighters, the FHWA has determined
that there is good cause under the
Administrative Procedure Act to
dispense with notice and opportunity
for comment as it would be contrary to
the public interest. Therefore, we are
issuing an Interim Final Rule, effective
immediately, pursuant to the
Administrative Procedure Act, and
revising FHWA regulations accordingly.
DATES: Effective Date: This rule is
effective November 24, 2008.
ADDRESSES: Mail or hand deliver
comments to Docket Management
Facility: U.S. Department of
Transportation, 1200 New Jersey
Avenue, SE., Washington, DC 20590–
0001, submit comments electronically at
https://www.regulations.gov, or fax
comments to (202) 493–2251.
All comments should include the
docket number that appears in the
heading of this document. All
comments received will be available for
examination and copying at the above
address from 9 a.m. to 5 p.m., e.t.,
Monday through Friday, except Federal
holidays. Those desiring notification of
receipt of comments must include a selfaddressed, stamped postcard or may
print the acknowledgment page that
appears after submitting comments
electronically. Anyone is able to search
the electronic form of all comments in
any one of our dockets by the name of
the individual submitting the comment
(or signing the comment, if submitted
on behalf of an association, business, or
labor union). You may review the DOT’s
complete Privacy Act Statement in the
Federal Register published on April 11,
2000 (Volume 65, Number 70, Pages
19477–78) or you may visit https://
DocketsInfo.dot.gov.
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.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
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Electronic Access and Filing
You may submit or retrieve comments
online through the Federal eRulemaking
portal at https://www.regulations.gov. It
is available 24 hours each day, 365 days
each year. Please follow the instructions
online for more information and help.
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An electronic copy of this document
may also be downloaded by accessing
the Office of the Federal Register’s home
page at: https://www.archives.gov and the
Government Printing Office’s Web page
at: https://www.access.gpo.gov/nara.
Background
In this IFR, the FHWA is revising
existing regulations to address safety
concerns raised by the firefighting
community. On April 24, 2006, at 71 FR
20925, the FHWA published a Notice of
Proposed Rulemaking (NPRM)
proposing to require the use of highvisibility safety apparel for workers who
work within the Federal-aid highway
rights-of-way. This regulation
implemented section 1402 of the Safe,
Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for
Users (SAFETEA–LU) (Pub. L. 109–59;
August 10, 2005), which directed the
Secretary of Transportation to, within 1
year, issue regulations to decrease the
likelihood of worker injury and
maintain the free flow of vehicular
traffic by requiring workers whose
duties place them on or in close
proximity to a Federal-aid highway to
wear high-visibility safety apparel. The
proposed definition of ‘‘worker’’
included any person on foot whose
duties place them within the right-ofway of a Federal-aid highway, such as
highway construction and maintenance
forces, survey crews, utility crews,
responders to incidents, including law
enforcement personnel, within the
highway right-of-way of a Federal-aid
highway. ‘‘High-visibility safety
apparel’’ was defined as any garment
meeting the American National
Standards Institute (ANSI) 107–2004
Class 2 or 3 standard.
The comment period for the NPRM
closed on June 23, 2006. The FHWA
received 117 letters, which were
submitted to the docket, containing over
300 individual comments submitted by
State and local law enforcement
agencies, State departments of
transportation, city and county
government agencies, consulting firms,
private industry, associations, other
organizations, and individual private
citizens. The FHWA did not receive any
comments from the firefighting
community either in support of or in
opposition to the proposed regulations.
Many of the comments received from
the law enforcement community,
including one from the International
Association of Chiefs of Police,
requested an exception for law
enforcement personnel engaged in law
enforcement activities, as opposed to
traffic control type activities. The law
enforcement community commenters
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contended that an officer wearing a
high-visibility garment would stand out
in situations where the additional
conspicuity could be hazardous for the
officer. The intent of the regulation was
to improve the safety of workers by
providing increased visibility to
approaching motorists and construction
traffic, not to place an officer in a more
dangerous position during enforcement
activities. Therefore, the FHWA agreed
with the recommendation from the
International Association of Chiefs of
Police and provided an exception for
law enforcement personnel in the Final
Rule.
On November 24, 2006, at 72 FR
67792, the Final Rule establishing 23
CFR part 634 was published in the
Federal Register. A compliance date of
November 24, 2008, was established to
provide a 2-year phase-in period. During
this period, the firefighting community
became aware of the regulation and the
implications for their operations. Many
of the letters that the FHWA has
received from the firefighting
community during the phase-in period
indicate support of the regulation in
general, but raise concerns about
situations where the requirement to
wear a high-visibility garment could
cause operational problems for
firefighters and could result in
decreased safety for individual
firefighters. During the NPRM comment
period, an equipment manufacturer
commented that, due to the competing
hazards that exist for workers, such as
heat and flame, the FHWA should
consider incorporating worker
categories, or at a minimum, exempt fire
services responders, and instead
encourage best practices in the use of
high-visibility apparel in emergency
situations in accordance with hazard
assessments or specific environments.
In response, in the preamble for the
Final Rule, the FHWA indicated, ‘‘If an
agency determines that the material
must be fire resistant, it can include a
provision in the specification for the
garments that they purchase.’’ It appears
that, a material that meets the
fluorescent color of the ANSI 107–2004
standard and is heat- and flame-resistant
to the degree required by firefighters
and the National Fire Protection
Association (NFPA) standards has not
been developed. Therefore, it is possible
that, by complying with 23 CFR part
634, a firefighter wearing a highvisibility garment could be at a greater
risk of injury.
The firefighting community has also
identified issues related to the amount
of other personal protection equipment
(PPE) required for firefighters in
situations where high heat or flames are
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Federal Register / Vol. 73, No. 226 / Friday, November 21, 2008 / Rules and Regulations
present. In addition to the ‘‘turnout
gear’’ worn by most firefighters required
by a NFPA 1971 standard, they are often
required to wear a Self-Contained
Breathing Apparatus. Requiring the use
of the high-visibility garment as the
outer layer of a firefighter’s apparel in
such situations would not be practical.
Additionally, the firefighting
community contends that wearing a
garment outside the turnout gear could
create a snag hazard in the extraction
operations at some incident scenes. This
could hinder the operations and
decrease safety for a firefighter.
In certain situations, such as
responding to incidents on the roadway,
firefighters and other emergency
personnel must consider competing
hazards. Conflicting regulations to 23
CFR part 634 may also exist. For
example, the NFPA standards specify
the type of PPE that firefighters must
wear based on the different conditions
they encounter. The Occupational
Safety and Health Association
regulations also require employers to
complete and certify PPE Hazard
Assessments that identify all job
hazards and the correct PPE for workers
to wear when engaged in work duties.
While these regulations do not always
conflict with 23 CFR part 634, certain
conditions where they do so may exist.
In April 2008, the University of
Michigan, Ann Arbor, Transportation
Research Institute released a study on
the conspicuity of first-responder safety
garments. The study was conducted on
a closed track in both daytime and
nighttime conditions to compare the
conspicuity of three different types of
safety garments used by first responders:
NFPA 1971 turnout gear coats, ANSI/
ISEA 107 safety vests, and ANSI/ISEA
207 safety vests. Eight participants,
balanced for gender and age, drove
instrumented vehicles on the closed
track indicating the distance at which
they could detect workers at a simulated
emergency response scene. The results
show no statistically significant
difference in the distance at which
workers were detected, regardless of
which garment was worn. In other
words, all three garment standards
provided equal levels of conspicuity
under the conditions examined. The
results suggest that all of the garments
studied should be considered equivalent
relative to first responder conspicuity
when working in close proximity to
traffic.1 Based upon this research, the
FHWA believes that the PPE for
1 Tuttle, S.J., Sayer, J.R., Buonarosa, M.L.; ‘‘The
conspicuity of first-responder safety garments’’;
available at https://hdl.handle.net/2027.42/58734;
University of Michigan, Ann Arbor, Transportation
Research Institute (2008).
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firefighters specified in the NFPA 1971
standard is equivalent to the ANSI 107–
2004 Class 2 garment.
that this action would not have a
significant economic impact on a
substantial number of small entities.
Section-by-Section Analysis
Unfunded Mandates Reform Act of
1995
Section 634.2
This subsection is amended to revise
the definition of ‘‘worker’’ to exclude
firefighters when they are exposed to
flame, fire, high heat or hazardous
materials.
Section 634.3
This subsection is amended to exempt
firefighters from the requirement to use
high-visibility safety apparel, as defined
in this rule, when they are exposed to
hazardous conditions where the use of
such apparel may increase the risk of
injury to firefighter personnel.
Rulemaking Analyses and Notices
Due to the imminent safety
implications to firefighters, the FHWA
has determined that there is good cause
under 5 U.S.C. 553(b)(3)(B) to dispense
with notice and opportunity for
comment as it would be contrary to the
public interest. And, in addition, for the
same reason, we are making this Interim
Final Rule effective immediately under
5 U.S.C. 553(d)(3), and, therefore,
revising 23 CFR part 634 accordingly.
Executive Order 12866 (Regulatory
Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this
action is not a significant regulatory
action within the meaning of Executive
Order 12866 and is not significant
within the meaning of U.S. Department
of Transportation regulatory policies
and procedures. It is anticipated that the
economic impact of this rulemaking
would be minimal. These changes
would not adversely affect, in a material
way, any sector of the economy. In
addition, these changes would not
interfere with any action taken or
planned by another agency and would
not materially alter the budgetary
impact of any entitlements, grants, user
fees, or loan programs. Consequently, a
full regulatory evaluation is not
required.
Regulatory Flexibility Act
In compliance with the Regulatory
Flexibility Act (Pub. L. 96–354, 5 U.S.C.
601–612) the FHWA has evaluated the
effects of this action on small entities
and has determined that the action
would not have a significant economic
impact on a substantial number of small
entities. This action does not affect any
funding distributed under any of the
programs administered by the FHWA.
For these reasons, the FHWA certifies
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This rule would not impose unfunded
mandates as defined by the Unfunded
Mandates Reform Act of 1995 (Pub. L.
104–4, 109 Stat. 48). This rule would
not result in the expenditure by State,
local, and tribal governments, in the
aggregate, or by the private sector, of
$128.1 million or more in any one year
(2 U.S.C. 1532).
Executive Order 13132 (Federalism
Assessment)
This action has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132, and the FHWA has determined
that this action would not have
sufficient federalism implications to
warrant the preparation of a federalism
assessment. The FHWA has also
determined that this action would not
preempt any State law or State
regulation or affect the States’ ability to
discharge traditional State governmental
functions.
Executive Order 13211 (Energy Effects)
We have analyzed this action under
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use, dated May 18,
2001. We have determined that it is not
a significant energy action under that
order since it is not likely to have a
significant adverse effect on the supply,
distribution, or use of energy. Therefore,
a Statement of Energy Effects is not
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), Federal
agencies must obtain approval from the
Office of Management and Budget for
each collection of information they
conduct, sponsor, or require through
regulations. The FHWA has determined
that this rule does not contain collection
of information requirements for the
purposes of the PRA.
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Federal Register / Vol. 73, No. 226 / Friday, November 21, 2008 / Rules and Regulations
Executive Order 12988 (Civil Justice
Reform)
PART 634—WORKER VISIBILITY
1. The authority citation for part 634
continues to read as follows:
■
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.
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).
Executive Order 13045 (Protection of
Children)
§ 634.2
2. Amend § 634.2 to revise the
definition of ‘‘Workers’’ as follows:
■
Definitions.
*
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.
*
*
*
*
Workers means people on foot whose
duties place them within the right-ofway of a Federal-aid highway, such as
highway construction and maintenance
forces; survey crews; utility crews;
responders to incidents within the
highway right-of-way; firefighters and
other emergency responders when they
are not directly exposed to flame, fire,
heat, and/or hazardous materials; and
law enforcement personnel when
directing traffic, investigating crashes,
and handling lane closures, obstructed
roadways, and disasters within the
right-of-way of a Federal-aid highway.
■ 3. Revise § 634.3 to read as follows:
§ 634.3
Rule.
All workers within the right-of-way of
a Federal-aid highway who are exposed
either to traffic (vehicles using the
highway for purposes of travel) or to
construction equipment within the work
area shall wear high-visibility safety
apparel. Firefighters or other emergency
responders working within the right-ofway of a Federal-aid highway and
engaged in emergency operations that
directly expose them to flame, fire, heat,
and/or hazardous materials may wear
retroreflective turn-out gear that is
specified and regulated by other
organizations, such as the National Fire
Protection Association. Firefighters or
other emergency responders working
within the right-of-way of a Federal-aid
highway and engaged in any other types
of operations shall wear high-visibility
safety apparel.
[FR Doc. E8–27671 Filed 11–20–08; 8:45 am]
BILLING CODE 4910–22–P
List of Subjects in 23 CFR Part 634
ENVIRONMENTAL PROTECTION
AGENCY
dwashington3 on PRODPC61 with RULES
Design standards, Highways and
roads, Incorporation by reference,
Workers, Traffic regulations.
40 CFR Part 3
Issued on: November 14, 2008.
Thomas J. Madison, Jr.
Administrator, Federal Highway
Administration.
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Withdrawal of direct final rule.
SUMMARY: Because EPA received
comment, we are withdrawing the direct
final rule for extension of the CrossMedia Electronic Reporting Rule
(CROMERR) deadline for authorized
programs (states, tribes, or local
governments) with existing electronic
document receiving systems to submit
applications for EPA approval under
CROMERR, published on October 17,
2008.
Effective November 21, 2008,
EPA withdraws the direct final rule
published at 73 FR 61737, on October
17, 2008.
DATES:
Evi
Huffer, Office of Environmental
Information (2823T), Environmental
Protection Agency, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460;
(202) 566–1697; huffer.evi@epa.gov, or
David Schwarz, Office of Environmental
Information (2823T), Environmental
Protection Agency, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460;
(202) 566–1704;
schwarz.david@epa.gov.
FOR FURTHER INFORMATION CONTACT:
Because
EPA received comment, we are
withdrawing the direct final rule for
extension of the Cross-Media Electronic
Reporting Rule (CROMERR) deadline for
authorized programs (states, tribes, or
local governments) with existing
electronic document receiving systems
to submit applications for EPA approval
under CROMERR, published on October
17, 2008. We stated in that direct final
rule that if we received comment by
November 3, 2008, the direct final rule
would not take effect and we would
publish a timely withdrawal in the
Federal Register. We subsequently
received comment on that direct final
rule. We will address those comments
in any subsequent final action, which
will be based on the parallel proposed
rule also published on October 17, 2008
(73 FR 61737). As stated in the direct
final rule and the parallel proposed rule,
we will not institute a second comment
period on this action.
SUPPLEMENTARY INFORMATION:
List of Subjects in 40 CFR Part 3
[EPA–HQ–OEI–2003–0001; FRL–8743–3]
RIN 2025–AA23
In consideration of the foregoing, the
FHWA amends chapter I of title 23,
Code of Federal Regulations, as set forth
below:
■
ACTION:
Extension of Cross-Media Electronic
Reporting Rule Deadline for
Authorized Programs
Environmental protection, Conflict of
interests, Electronic records, Electronic
reporting requirements, Electronic
reports, Intergovernmental relations.
Environmental Protection
Agency (EPA).
AGENCY:
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]]>Agencies
[Federal Register Volume 73, Number 226 (Friday, November 21, 2008)]
[Rules and Regulations]
[Pages 70593-70596]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-27671]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 634
[FHWA Docket No. FHWA-2008-0157]
RIN 2125-AF28
Worker Visibility
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Interim Final Rule (IFR).
-----------------------------------------------------------------------
SUMMARY: The FHWA is revising its regulations to address safety
concerns
[[Page 70594]]
raised by the firefighting community regarding high-visibility safety
apparel. Due to imminent safety implications to firefighters, the FHWA
has determined that there is good cause under the Administrative
Procedure Act to dispense with notice and opportunity for comment as it
would be contrary to the public interest. Therefore, we are issuing an
Interim Final Rule, effective immediately, pursuant to the
Administrative Procedure Act, and revising FHWA regulations
accordingly.
DATES: Effective Date: This rule is effective November 24, 2008.
ADDRESSES: Mail or hand deliver comments to Docket Management Facility:
U.S. Department of Transportation, 1200 New Jersey Avenue, SE.,
Washington, DC 20590-0001, submit comments electronically at https://
www.regulations.gov, or fax comments to (202) 493-2251.
All comments should include the docket number that appears in the
heading of this document. All comments received will be available for
examination and copying at the above address from 9 a.m. to 5 p.m.,
e.t., Monday through Friday, except Federal holidays. Those desiring
notification of receipt of comments must include a self-addressed,
stamped postcard or may print the acknowledgment page that appears
after submitting comments electronically. Anyone is able to search the
electronic form of all comments in any one of our dockets by the name
of the individual submitting the comment (or signing the comment, if
submitted on behalf of an association, business, or labor union). You
may review the DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (Volume 65, Number 70, Pages
19477-78) or you may visit https://DocketsInfo.dot.gov.
FOR FURTHER INFORMATION CONTACT: For technical information: Mr. Hari
Kalla, Office of Transportation Operations, (202) 366-5915. For legal
information: Mr. Raymond Cuprill, Office of Chief Counsel, (202) 366-
0791, Federal Highway Administration, 1200 New Jersey Avenue, SE.,
Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15
p.m., e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
You may submit or retrieve comments online through the Federal
eRulemaking portal at https://www.regulations.gov. It is available 24
hours each day, 365 days each year. Please follow the instructions
online for more information and help.
An electronic copy of this document may also be downloaded by
accessing the Office of the Federal Register's home page at: https://
www.archives.gov and the Government Printing Office's Web page at:
https://www.access.gpo.gov/nara.
Background
In this IFR, the FHWA is revising existing regulations to address
safety concerns raised by the firefighting community. On April 24,
2006, at 71 FR 20925, the FHWA published a Notice of Proposed
Rulemaking (NPRM) proposing to require the use of high-visibility
safety apparel for workers who work within the Federal-aid highway
rights-of-way. This regulation implemented section 1402 of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU) (Pub. L. 109-59; August 10, 2005), which
directed the Secretary of Transportation to, within 1 year, issue
regulations to decrease the likelihood of worker injury and maintain
the free flow of vehicular traffic by requiring workers whose duties
place them on or in close proximity to a Federal-aid highway to wear
high-visibility safety apparel. The proposed definition of ``worker''
included any person on foot whose duties place them within the right-
of-way of a Federal-aid highway, such as highway construction and
maintenance forces, survey crews, utility crews, responders to
incidents, including law enforcement personnel, within the highway
right-of-way of a Federal-aid highway. ``High-visibility safety
apparel'' was defined as any garment meeting the American National
Standards Institute (ANSI) 107-2004 Class 2 or 3 standard.
The comment period for the NPRM closed on June 23, 2006. The FHWA
received 117 letters, which were submitted to the docket, containing
over 300 individual comments submitted by State and local law
enforcement agencies, State departments of transportation, city and
county government agencies, consulting firms, private industry,
associations, other organizations, and individual private citizens. The
FHWA did not receive any comments from the firefighting community
either in support of or in opposition to the proposed regulations. Many
of the comments received from the law enforcement community, including
one from the International Association of Chiefs of Police, requested
an exception for law enforcement personnel engaged in law enforcement
activities, as opposed to traffic control type activities. The law
enforcement community commenters contended that an officer wearing a
high-visibility garment would stand out in situations where the
additional conspicuity could be hazardous for the officer. The intent
of the regulation was to improve the safety of workers by providing
increased visibility to approaching motorists and construction traffic,
not to place an officer in a more dangerous position during enforcement
activities. Therefore, the FHWA agreed with the recommendation from the
International Association of Chiefs of Police and provided an exception
for law enforcement personnel in the Final Rule.
On November 24, 2006, at 72 FR 67792, the Final Rule establishing
23 CFR part 634 was published in the Federal Register. A compliance
date of November 24, 2008, was established to provide a 2-year phase-in
period. During this period, the firefighting community became aware of
the regulation and the implications for their operations. Many of the
letters that the FHWA has received from the firefighting community
during the phase-in period indicate support of the regulation in
general, but raise concerns about situations where the requirement to
wear a high-visibility garment could cause operational problems for
firefighters and could result in decreased safety for individual
firefighters. During the NPRM comment period, an equipment manufacturer
commented that, due to the competing hazards that exist for workers,
such as heat and flame, the FHWA should consider incorporating worker
categories, or at a minimum, exempt fire services responders, and
instead encourage best practices in the use of high-visibility apparel
in emergency situations in accordance with hazard assessments or
specific environments. In response, in the preamble for the Final Rule,
the FHWA indicated, ``If an agency determines that the material must be
fire resistant, it can include a provision in the specification for the
garments that they purchase.'' It appears that, a material that meets
the fluorescent color of the ANSI 107-2004 standard and is heat- and
flame-resistant to the degree required by firefighters and the National
Fire Protection Association (NFPA) standards has not been developed.
Therefore, it is possible that, by complying with 23 CFR part 634, a
firefighter wearing a high-visibility garment could be at a greater
risk of injury.
The firefighting community has also identified issues related to
the amount of other personal protection equipment (PPE) required for
firefighters in situations where high heat or flames are
[[Page 70595]]
present. In addition to the ``turnout gear'' worn by most firefighters
required by a NFPA 1971 standard, they are often required to wear a
Self-Contained Breathing Apparatus. Requiring the use of the high-
visibility garment as the outer layer of a firefighter's apparel in
such situations would not be practical. Additionally, the firefighting
community contends that wearing a garment outside the turnout gear
could create a snag hazard in the extraction operations at some
incident scenes. This could hinder the operations and decrease safety
for a firefighter.
In certain situations, such as responding to incidents on the
roadway, firefighters and other emergency personnel must consider
competing hazards. Conflicting regulations to 23 CFR part 634 may also
exist. For example, the NFPA standards specify the type of PPE that
firefighters must wear based on the different conditions they
encounter. The Occupational Safety and Health Association regulations
also require employers to complete and certify PPE Hazard Assessments
that identify all job hazards and the correct PPE for workers to wear
when engaged in work duties. While these regulations do not always
conflict with 23 CFR part 634, certain conditions where they do so may
exist.
In April 2008, the University of Michigan, Ann Arbor,
Transportation Research Institute released a study on the conspicuity
of first-responder safety garments. The study was conducted on a closed
track in both daytime and nighttime conditions to compare the
conspicuity of three different types of safety garments used by first
responders: NFPA 1971 turnout gear coats, ANSI/ISEA 107 safety vests,
and ANSI/ISEA 207 safety vests. Eight participants, balanced for gender
and age, drove instrumented vehicles on the closed track indicating the
distance at which they could detect workers at a simulated emergency
response scene. The results show no statistically significant
difference in the distance at which workers were detected, regardless
of which garment was worn. In other words, all three garment standards
provided equal levels of conspicuity under the conditions examined. The
results suggest that all of the garments studied should be considered
equivalent relative to first responder conspicuity when working in
close proximity to traffic.\1\ Based upon this research, the FHWA
believes that the PPE for firefighters specified in the NFPA 1971
standard is equivalent to the ANSI 107-2004 Class 2 garment.
---------------------------------------------------------------------------
\1\ Tuttle, S.J., Sayer, J.R., Buonarosa, M.L.; ``The
conspicuity of first-responder safety garments''; available at
https://hdl.handle.net/2027.42/58734; University of Michigan, Ann
Arbor, Transportation Research Institute (2008).
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Section-by-Section Analysis
Section 634.2
This subsection is amended to revise the definition of ``worker''
to exclude firefighters when they are exposed to flame, fire, high heat
or hazardous materials.
Section 634.3
This subsection is amended to exempt firefighters from the
requirement to use high-visibility safety apparel, as defined in this
rule, when they are exposed to hazardous conditions where the use of
such apparel may increase the risk of injury to firefighter personnel.
Rulemaking Analyses and Notices
Due to the imminent safety implications to firefighters, the FHWA
has determined that there is good cause under 5 U.S.C. 553(b)(3)(B) to
dispense with notice and opportunity for comment as it would be
contrary to the public interest. And, in addition, for the same reason,
we are making this Interim Final Rule effective immediately under 5
U.S.C. 553(d)(3), and, therefore, revising 23 CFR part 634 accordingly.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 and is
not significant within the meaning of U.S. Department of Transportation
regulatory policies and procedures. It is anticipated that the economic
impact of this rulemaking would be minimal. These changes would not
adversely affect, in a material way, any sector of the economy. In
addition, these changes would not interfere with any action taken or
planned by another agency and would not materially alter the budgetary
impact of any entitlements, grants, user fees, or loan programs.
Consequently, a full regulatory evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612) the FHWA has evaluated the effects of this action on
small entities and has determined that the action would not have a
significant economic impact on a substantial number of small entities.
This action does not affect any funding distributed under any of the
programs administered by the FHWA. For these reasons, the FHWA
certifies that this action would not have a significant economic impact
on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This rule would not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This rule would not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of
$128.1 million or more in any one year (2 U.S.C. 1532).
Executive Order 13132 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, and the FHWA has
determined that this action would not have sufficient federalism
implications to warrant the preparation of a federalism assessment. The
FHWA has also determined that this action would not preempt any State
law or State regulation or affect the States' ability to discharge
traditional State governmental functions.
Executive Order 13211 (Energy Effects)
We have analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use, dated May 18, 2001. We have determined that it is
not a significant energy action under that order since it is not likely
to have a significant adverse effect on the supply, distribution, or
use of energy. Therefore, a Statement of Energy Effects is not
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),
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.
[[Page 70596]]
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
The FHWA has analyzed this rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. The FHWA certifies that this action would not cause any
environmental risk to health or safety that might disproportionately
affect children.
Executive Order 12630 (Taking of Private Property)
The FHWA has analyzed this rule under Executive Order 12630,
Governmental Actions and Interface with Constitutionally Protected
Property Rights. The FHWA does not anticipate that this action would
affect a taking of private property or otherwise have taking
implications under Executive Order 12630.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that this action would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 23 CFR Part 634
Design standards, Highways and roads, Incorporation by reference,
Workers, Traffic regulations.
Issued on: November 14, 2008.
Thomas J. Madison, Jr.
Administrator, Federal Highway Administration.
0
In consideration of the foregoing, the FHWA amends chapter I of title
23, Code of Federal Regulations, as set forth below:
PART 634--WORKER VISIBILITY
0
1. The authority citation for part 634 continues to read as follows:
Authority: 23 U.S.C. 101(a), 109(d), 114(a), 315, and 402(a);
Sec. 1402 of Pub. L. 109-59; 23 CFR 1.32; and 49 CFR 1.48(b).
0
2. Amend Sec. 634.2 to revise the definition of ``Workers'' as
follows:
Sec. 634.2 Definitions.
* * * * *
Workers means people on foot whose duties place them within the
right-of-way of a Federal-aid highway, such as highway construction and
maintenance forces; survey crews; utility crews; responders to
incidents within the highway right-of-way; firefighters and other
emergency responders when they are not directly exposed to flame, fire,
heat, and/or hazardous materials; and law enforcement personnel when
directing traffic, investigating crashes, and handling lane closures,
obstructed roadways, and disasters within the right-of-way of a
Federal-aid highway.
0
3. Revise Sec. 634.3 to read as follows:
Sec. 634.3 Rule.
All workers within the right-of-way of a Federal-aid highway who
are exposed either to traffic (vehicles using the highway for purposes
of travel) or to construction equipment within the work area shall wear
high-visibility safety apparel. Firefighters or other emergency
responders working within the right-of-way of a Federal-aid highway and
engaged in emergency operations that directly expose them to flame,
fire, heat, and/or hazardous materials may wear retroreflective turn-
out gear that is specified and regulated by other organizations, such
as the National Fire Protection Association. Firefighters or other
emergency responders working within the right-of-way of a Federal-aid
highway and engaged in any other types of operations shall wear high-
visibility safety apparel.
[FR Doc. E8-27671 Filed 11-20-08; 8:45 am]
BILLING CODE 4910-22-P
