New Federal Rule 23 C.F.R. Part 634 – Worker Visibility (High-Visibility Vests)
Compliance Guidance for Fire and Emergency Services Personnel
Situation: On August 10, 2005, President Bush signed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), which authorizes the Federal surface transportation programs for highways, highway safety, and transit for the 5-year period 2005-2009. Pursuant to this law, the Federal Highway Administration (FHA) proposed a new federal regulation on April 24, 2006 published in volume 71 Federal Register, page 20925 (71 Fed. Reg. 20925) that requires all workers within the right-of-way of a Federal-aid highway to wear an ANSI 107 (2004) Class 2 or 3 high-visibility vest. On November 24, 2006 the FHA published the final rule, which became effective on November 24, 2008, at 71 Fed. Reg. 67792.
On November 21, 2008, the FHWA issued a last minute interim final rule revising the Worker Visibility Rule (23CFR 634) to create an appropriate exemption for the firefighting community. This Interim Final Rule allows 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 to 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 as defined in the original rule. The FHWA decided to issue this interim final rule to address safety concerns raised by the fire fighting community. The interim final rule was published in the Federal Register on November 21, 2008 and went into effect on November 24, 2008. The interim rule can be accessed at the following link:
The full original wording of 23 C.F.R. Part 634 – The Worker Visibility Rule is available here:
The full revised wording of Rule 634, including the interim rule wording is also attached at the end of this article.
It is important to keep in mind that the Emergency Responder Safety Institute, OSHA, NIOSH, the U.S. Fire Administration, The International Association of Fire Fighters, the U.S. Department of Transportation and the National Fire Protection Association all support and encourage the use of high-visibility garments for emergency services workers when working on all roadways where they are exposed to vehicle traffic and not directly exposed to heat, flame, fire or hazardous materials. It is also important to keep in mind that the intent of this new Federal rule is to decrease the likelihood of worker injuries/fatalities caused by being struck by vehicles, which is a primary goal shared by the fire service.
High-visibility vests are only one component of a system of protective strategies to protect firefighters from being struck by vehicles while working along roadways. Each fire department and public safety agency should work to develop a complete program of proactive strategies to protect their personnel including the following tactics.
Proactive Strategies to Protect Firefighters from being struck by vehicles include:
1) Training for all personnel on roadway incident safety;
2) Proper PPE – Turnouts/bunker gear (NFPA1971), helmet, hi-visibility vests;
3) Proper positioning of apparatus to create a safe zone;
4) Proper use and deployment of traffic control devices;
a. Signs, cones, flares, police cars, variable message signs
5) Multi-agency & multi-jurisdictional cooperation, collaboration & communication;
a. Multi-agency training on roadway incident safety
6) Fire apparatus enhanced visibility design features.
a. Emergency warning lights designed for on-scene protection
b. High-visibility (reflective and florescent) chevrons on the rear of apparatus that
comply with the guidelines recently passed for the newest edition of NFPA 1901
Recommendations and supporting documentation and information
1) REVIEW the most current version of NFPA 1500-2007 and in particular Section 8.7 - Traffic Incidents - and document your agencies actions to comply with those guidelines.
2) DEVELOP and document an SOP/SOG for roadway operations and use it as part of your training program and response operations. This is one of the elements of NFPA 1500-2007 standard. A free SOP template is available here: http://tinyurl.com/6gfejn or at this link: http://www.respondersafety.com/Training/Downloads.aspx
3) ALL public safety agencies (FD, PD and EMS) should complete documented PPE Hazard Assessments using guidance provided by OSHA here: http://tinyurl.com/59nkct. Your agency does not have to be located within an OSHA plan state to comply with OSHA regulations. OSHA regulations can only be enforced for public sector agencies located in OSHA Plan states. However; OSHA regulations can be considered “best practices” and should be applied to all workers.
4) As part of the PPE hazard assessment process and documentation clearly identify ALL the hazards (including moving traffic at roadway incidents) and document specifically what PPE personnel should be wearing for the various types of emergencies your agency responds to - fires, medical assists, hazmat, motor vehicle crashes etc.. That guidance should detail what personnel attacking a vehicle, structure or ground cover fire should be wearing and any other precautions being taken to protect them (i.e. all fire attack should be conducted from within a protected "safe zone" secured by fire apparatus positioned correctly to protect personnel in accordance with your agency’s Roadway Incident Safety SOP/SOG).
5) Personnel who are on-scene and are not directly exposed to fire, flame, excessive heat or hazardous materials would be expected to wear high-visibility garments (ie. pump operators, fire-police, support personnel, command officers etc.) Any members assigned to respond to an emergency situation (ie. RIT members) should be considered in the same environment as those engaged in active fire attack and should be staged OFF of the roadway and in a protected safe zone where they would not require hi-visibility gear until after the scene is under control at which time they can don a vest. Any personnel on scene could easily remove (tear-away) a high-visibility vest to react to unusual circumstances if necessary and don an air-pack to render assistance with direct firefighting actions.
6) DOCUMENT that your firefighters have completed roadway incident safety training. Document means that you identify the subject, content (agenda), instructor, time, date, location and list of attendees with any test or quiz results (all OSHA requirements for employee safety training). The "Watch Out Behind You" program available for FREE from respondersafety.com is an excellent tool for a local training program but other materials also exist including some very good programs already in place in numerous FD's across the country.
7) OBTAIN an appropriate number, type and sizes of high-visibility vests for your personnel. Appropriate means ANSI-107(2004) Class 2 or 3 garments OR ANSI-207(2006) compliant garments. Be sure to obtain vests of the proper size to fit over turnout gear usually starting at XL and above. Look for or request 4 or 5-point breakaway features. Be sure to include information about the use (don – adjust size – remove and store properly), care and maintenance of the garments in your roadway incident safety training and include that info in your training documentation as described above (also an OSHA requirement). It is appropriate in some cases to wear high-visibility vests over top of full bunker gear, especially in cold weather situations and responses to motor vehicle crashes where there is no fire.
REMEMBER: Firefighters and emergency medical personnel do not ALWAYS wear their full turnout gear ensemble when responding to every emergency incident! The highest percentage of emergency responses (60% or better – fill in your own local EMS response number) does not involve wearing full turnouts. Even though some manufacturers are suggesting that the trim on bunker gear is adequate protection for working on a roadway, they are forgetting that full turnouts are not ALWAYS worn and that turnout gear gets soiled which reduces their reflective and florescent trim visibility. Turnout gear offers no visibility enhancement if they are not actually on the personnel and in the heat of summer, firefighters are often in a hurry to shed the heavy coat to avoid heat related injuries. A high-visibility vest serves a critical need to improve visibility of those personnel who are not wearing full bunker gear under many emergency conditions.
Other documents that require or advocate the use of high-visibility vests
1) OSHA standards – 29 CFR 1910.132(d), 29 CFR 1926.201(a), and 29 USC 654 - Section 5(a)(1) of the Occupational Safety and Health Act (General Duty Clause)
2) NFPA 1500 (2007) – 8.7 Traffic Incidents (www.nfpa.org)
NFPA 1901 (2009) - The standard now requires an ANSI 207 breakaway vest for every seat in all fire apparatus contracted for delivery after Jan 1, 2009. (www.nfpa.org)
3) USFA & US DOT Booklet: Traffic Incident Management Systems
4) NIOSH FF LODD Investigations & Recommendations
http://www.cdc.gov/NIOSH/FIRE/ & http://www.cdc.gov/niosh/hid12.html
5) IAFF Emergency Vehicle Safety Program
6) MUTCD 2003 - http://mutcd.fhwa.dot.gov/index.htm
7) Respondersafety.com – www.respondersafety.com
23 C.F.R. PART 634 -- WORKER VISIBILITY
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 (Including Interim Rule Revisions of 11/21/2008).
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.''
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.
Sec. 634.3 Rule (Including Interim Rule Revisions of 11/21/2008).
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.
Sec. 634.4 Compliance date.
States and other agencies shall comply with the provisions of this Part no later than November 24, 2008.