Description:
Federal Government Begins Mandating
High-Visibility Vests for Emergency
Responders
On November 24, 2008, a new federal regulation
(23
CFR 634) goes into effect mandating that anyone working in the
right-of-way of a federal-aid highway must be wearing high-visibility
clothing that meets the requirements of ANSI / ISEA 107; 2004 edition class 2 or 3.
This requirement will apply to all emergency responders with certain
safety exceptions.
The
Code of Federal Regulations Title 23 (Highways) Part 634 was originally
published in the Federal
Register Vol 71, No 226, pp 67792 - 67800. It was revised November 21,
2008 in an Interim Final
Rule to address safety concerns from the firefighting community and
allow certain common sense exemptions covered below in the section
"Exceptions for Emergency Responders".
The
Rule (634.3) in its revised form states that:
"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."
Definitions (634.2)
within Part 634 cover what is meant by "Workers" and "high-visibility
safety apparel". Any exceptions for emergency responders are incorporated
in the definition of "workers":
"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 obstructed roadways, and
disasters directing traffic, investigating crashes, and handling lane
closures, within the right-of-way of a
Federal-aid highway."
"High-Visibility Safety Apparel" is defined to
mean "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".
In the
background material for the Interim Final
Rule the FHWA mentions a study by the University of
Michigan Transportation
Research Institute. That mention is
included only as contributory information about how the FHWA concluded
upon the firefighter exceptions. Since it is only background
material and not a part of the actual "Rule" it shall not be taken to
indicate that turnout gear may be worn instead of high-visibility garments
except as specifically described in the Rule.
ANSI 207,
Public Safety Vests
After
23 CFR 634 was finalized, a new standard for Public Safety Vests was
published as ANSI / ISEA 207; 2006
edition. Because ANSI 207 was not
published until after 23 CFR 634 was finalized, the federal regulation
could only reference ANSI
107.
ANSI 107 requires that class 2 garments
(vests) have at least 775 square inches of high-visibility, fluorescent
background material and at least 201 square inches of reflective material.
While the ANSI 207 requirement for
reflective material is the same (201 in2), it requires only 450
square inches of background material. Therefore, ANSI 207 vests do not meet the requirements
of ANSI 107 and therefore do not
currently meet the requirements of 23 CFR 634.
The DOT Federal
Highway Administration’s Associate
Administrator for Operations has written a letter to the Emergency
Responder Safety Institute that is being circulated in discussions about
this issue. (Click here
to download a copy of the letter.) The letter acknowledges that they
have reviewed ANSI 207 and “found this
standard compatible with the ANSI/ISEA
[107] Class II requirements for night-time visibility.” Those affected by
23 CFR 634 should understand that the high-visibility clothing must be
worn day and night, so this statement by the FHWA does not officially
validate the use of ANSI 207 vests in
place of ANSI 107 where legally
mandated.
As of the publication of the Interim Final Rule, Public
Safety Vests (ANSI 207) are still not
allowable where 23 CFR 634 applies.
Proposed Changes to the
Rule
The DOT/FHWA has proposed a number of
changes that will affect 23 CFR 634. Of the most immediate concern is that
they propose allowing ANSI 207 vests for
emergency responders. This change did not go into effect in time for the
November 24 deadline and is not likely to go into effect until the 2nd or
3rd quarter of 2009. In a much more comprehensive change, the current
proposals would incorporate 23 CFR 634 into the MUTCD (Manual on Uniform
Traffic Control Devices). This would make high-visibility garments (under
the proposal, either 107- or 207-certified) mandatory for workers on “all
roads open to public travel in accordance with 23 CFR Part 655, not just
Federal-aid highways.”
The
proposed changes concerning 23 CFR 634 can be read by downloading a pdf
document of the proposed changes for
the MUTCD. The items already mentioned are:
- 362 (page
317) – incorporation into the MUTCD and extending high-visibility
clothing mandate to all roads
- 375 &
376 (page 318) – allowing ANSI 207
vests for first responders and law enforcement personnel.
The proposed changes were open for
public review and comment until July 31, 2008. Many individuals and groups
concerned with responder safety submitted their own comments and proposals
which will now be reviewed and considered for
inclusion.
Exceptions for Emergency
Responders
Due to "comments from State and local
police, national police organizations, and State DOTs" the original
publishment in the federal register includes exceptions for law
enforcement officers working in potentially adversarial or confrontational
roles. This includes traffic stops and searches. Officers are still
required under 23 CFR 634 to wear high-visibility clothing during other
times, such as "directing traffic, investigating crashes, and handling
lane closures, obstructed roadways, and disasters within the right-of-way
of a Federal-aid highway." (The language for this exception can be found
in the 2nd column of page 67797 of the publication in the Federal Register
Vol. 71, No 226 which can be downloaded using the link
below).
On Friday November
21, 2008 the FHWA published an Interim Final
Rule in order to codify common sense exemptions for firefighters
involved in operations where a high-visibility vest would put them at
greater risk. These changes mean that while emergency responders are
"engaged in emergency operations that directly expose them to flame, fire,
heat, and/or hazardous materials" they should wear turnout gear.
However, all fire department personnel should be aware that turnout gear
alone does not meet the visibility requirement of 23 CFR 634. No turnout
gear currently manufactured meets the color requirement for the
fluorescent background material of these high-visibility garments. Even if
turnout gear could be dyed to meet the color standard when manufactured,
it would likely no longer be compliant after the first exposure to fire,
smoke, and soot. Therefore, turnout gear may not be substituted for
high-visibility clothing in other situations where 23 CFR 634 requires
it.
Complicating the issue further, the
National Fire Protection Association is set to release the 2009 edition of
NFPA 1901: Standard
for Automotive Fire Apparatus. This edition (as written) will apply to
all fire apparatus "contracted for on or after January 1, 2009" and will
require "one traffic safety vest for each seating position, each vest to
comply with ANSI/ISEA 207, Standard for
High-Visibility Public Safety Vests, and have a five-point breakaway
feature that includes two at the shoulders, two at the sides and one at
the front." This requirement is included for each type of fire apparatus,
for example see sections 5.8.3 (18), 6.7.3 (15), 7.7.3.1 (14),
etc.
Although some vests
can be purchased that are certified to meet the requirements of both ANSI 107 and 207, vests compliant only with
ANSI 207 may not meet a strict legal
interpretation of the 23 CFR 634 requirements which took effect November
24, 2008. This is a potentially confusing liability issue that deserves
close attention by all departments in the short-term while the confounding
issues are being worked out.
Summary
Part of the RKB mission is to try to keep our users
informed of equipment-related issues, and we hope that this mission
critical hint has accomplished that. The timing of 23 CFR 634 and ANSI / ISEA 207 was unfortunate, but the
complications are being addressed by the MUTCD proposed changes. The
difficulty and confusion will be in the short term, between the effective
date of 23 CFR 634 on November 24th and the time the proposed changes are
implemented. Every source contacted by the RKB staff has made it clear that the
eventual intent is for either the ANSI
107 or 207 vests to be used. However, no one has been able to say with
certainty what will happen if there is a serious injury or fatality to a
responder wearing a 207-compliant vest while the unchanged 23 CFR 634 is
in effect. That may be decided in court. Departments should consider
getting an opinion from their counsel to assist in deciding their
compliance strategy.
We
hope that every department will prepare and implement procedures to
address 23 CFR 634, and also plan ahead with funding and training for the
later changes that will likely extend the safety-vest requirements to all
public roads.
Durable