[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]
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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: Final rule.
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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.
SUPPLEMENTARY INFORMATION:
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.
Background
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.
Conclusion
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
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.
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.
0
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]
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