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Safety sense: The new high-visibility apparel regulation.

February 29, 2008
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On April 24, 2006, the Federal Highway Administration (FHWA) published a Notice of Proposed Rulemaking (NPRM) regarding high-visibility safety apparel.





This action was a result of the required implementation of Section 1402 (Worker Injury Prevention and Free Flow of Vehicular Traffic) of the Safe, Accountable, Flexible Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) that directs the U.S. 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 place them on or in close proximity to a Federal-aid highway to wear high-visibility safety apparel.”

The FHWA noted in the rule that there has been an increase in the amount of maintenance and reconstruction work (we assume it means nationwide) while traffic on portions of the roadway are still maintained. The agency gave the opinion that this has led to an increase of exposure and potential injury or death to those in work-zone areas. The background on this rule further noted: “High visibility is one of the most prominent 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.”

The public and any interested parties were given the opportunity to make comments on the FHWA proposal until June 23, 2006. State and local police departments, state departments of transportation, city and county government entities, consultants, private industry and individual citizens submitted 117 letters with more than 300 individual comments. The FHWA, in turn, made a number of changes to the NPRM based on many of these comments.

When I printed out the final rule it totaled 20 pages in my chosen format and print size. Yet, the gist of the overall rule is just barely one page in length (see page 70).





Breaking it Down

Purpose. The first section of the regulation starts with its purpose. No one can disagree that reducing accidents is a good thing. And no company wants its workers to be injured or killed while working.

Definitions. As we move on to definitions, the rule has conveniently defined close proximity as being “within the highway right-of-way on Federal-aid highways.”

This is another situation where a voluntary standards-setting organization is being used to write enforceable regulations. The 107-2004 high-visibility safety apparel standards of the American National Standards Institute and International Safety Equipment Association (ANSI/ISEA) are used as the model for this regulation. FHWA states that either Performance Class 2 or 3 requirements must be met, and it leaves the decision of which class is the most appropriate to the employer. What’s the difference? Class 2 is a lower visibility rating than Class 3. As a consultant, I recommend Class 3 to every firm as the best option for crew members. I see a potential trap for employers who decide to use a Class 2 product. If one of their employees is injured or killed while working, it would be easy for any agency to say that the choice of safety apparel was obviously incorrect because the employee was not sufficiently protected. Additionally, a Class 3 vest may be a bit warmer.

Remember that while all OSHA and FHWA regulations are obtainable on the Internet for free, ANSI standards must be purchased. This means employers have to pay for the standards that they need to comply with. But in reality, as long as employers make certain the vest type they purchase meets the ANSI criteria, they don’t really need to know exactly how they are made. One thing they do need to know is that there is a life span to any high-visibility apparel. For example, when the clothing has faded to the point that it doesn’t offer the required amount of protection, it must be replaced.

The definition of workers in the FHWA rule includes anyone who is on foot and whose duties place them within the right of way of a federal-aid highway. The key here is that there is no language that states that a construction project has to be in the planning stage or under way. Therefore, it applies to anyone who is working on that right of way at any time. That obviously includes maintenance workers, but it also includes tow truck drivers, those on accident reconstructions, law enforcement officers, fire fighters and other emergency responders as well as surveyors. The only real exceptions listed in the interrogatory of the regulation are for law enforcement officers when they are performing strictly law enforcement-related activities as opposed to directing traffic or investigating crashes. The rule even includes the media in the description of those who must comply with the regulation.

Rule. The final rule adds another point that I have argued for years with many contractors. FHWA states that anyone who is exposed to traffic, including vehicles on a highway for the purposes of travel, and those working on or near construction machinery must wear high-visibility apparel. Even if New Jersey Concrete Safety Shape Barriers (Jersey barriers) separate the work area, anyone in the work area exposed to construction machinery must be adequately protected.

Compliance Date. The final section lets us know that everyone must comply with this regulation by no later than Nov. 24, 2008. The rule specifically addresses this to states and other agencies.



What Areas Apply?

During a seminar on updated safety regulations at the Indiana Society of Professional Land Surveyors’ convention this year, our class got into a discussion on how to differentiate a federal-aid highway from a nonfederal-aid highway. Course attendees generally agreed (with several government agencies represented) that any state or federal highway would fall into the category of a federal-aid highway, but many other roadways could also be receiving federal aid for various projects. One area of concern is bridges, even those on nonstate highways, that receive federal aid. If any firm has any questions as to which category it is working on, it makes sense to comply with the regulation.





What About Penalties?

The only item that is lacking in the rule is a description of any proposed penalties for non-compliance. During the NPRM stage there was some discussion about withholding federal funds if states or other agencies failed to comply with the rule. The FHWA came back with comments that it isn’t trying to take OSHA’s enforcement mandate for workplace safety. However, it also didn’t state that it definitely wouldn’t withhold funds if a problem was noted. I believe more on this topic will come out in the near future. After all, what good is a regulation if there is no penalty for non-compliance? The safest bet for any firm is to start converting its protective apparel to meet this criteria. However, keep in mind that under both the Manual on Uniform Traffic Control Devices (MUTCD) and OSHA regulations, firms may even have to provide a level of protection higher than Class 3 if the hazards present dictate a high probability of injury. This may include high-visibility pants and head coverings.

Good luck with your compliance efforts, and remember that informed employers have the ability to make the best decisions for the protection of their employees.



23 CFR 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.





References

1 An NPRM is issued by law when a regulatory agency of the United States Federal Government wishes to add, remove or change a rule (or regulation) as part of the rule-making process. Each notice of proposed rule making is published in the Federal Register unless all persons subject to it are named and are personally served with a copy of it.

If you want the entire text of the final rule including many of the comments, you may download it from the Federal Register at www.gpoaccess.gov/fr. There is no easy way to get to the correct pages, so I advise you to do an advanced search under the “1994 (Volume 59) through 2008 (Volume 73)” section, select “2006 FR, Vol. 71,” the Final Rules and Regulations section, and enter the publication date as 11/24/2006. The final rule is on pages 67792-67800.



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