[Federal Register Volume 67, Number 72 (Monday, April 15, 2002)]
[Rules and Regulations]
[Pages 18091-18112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8773]



[[Page 18091]]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket # S-018]
RIN 1218-AB88


Safety Standards for Signs, Signals, and Barricades

AGENCY:  Occupational Safety and Health Administration; Labor.

ACTION: Direct final rule; request for comments.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) is 
issuing a direct final rule amending construction industry standards to 
require that traffic control signs, signals, barricades or devices 
protecting construction workers conform to Part VI of either the 1988 
Edition of the Federal Highway Administration (FHWA) Manual on Uniform 
Traffic Control Devices (MUTCD), with 1993 revisions (Revision 3) or 
the Millennium Edition of the FHWA MUTCD (Millennium Edition), instead 
of the American National Standards Institute (ANSI) D6.1-1971, Manual 
on Uniform Traffic Control Devices for Streets and Highways (1971 
MUTCD). This action is consistent with OSHA's June 16, 1999 
interpretation letter stating that the agency would allow employers to 
comply with Revision 3 in lieu of the 1971 MUTCD. See also the 
companion document published in the Proposed Rules section of today's 
Federal Register.

DATES: This direct final rule will become effective August 13, 2002 
unless significant adverse comments are received by June 14, 2002. If 
adverse comment is received, OSHA will publish a timely withdrawal of 
the rule in the Federal Register. The incorporation by reference of 
certain publications listed in the rule is approved by the Director of 
the Federal Register as of August 13, 2002.

ADDRESSES: You may submit three copies of written comments to OSHA 
Docket Office, Docket No. S-018, Docket Office, U.S. Department of 
Labor, 200 Constitution Avenue NW., Room N-2625, Washington, DC 20210; 
telephone (202-693-2350).
    If written comments are 10 pages or fewer, you may fax them to the 
OSHA Docket Office telephone number (202) 693-1648.
    You may submit comments electronically through OSHA's Homepage at 
ecomments.osha.gov. Please note that you may not attach materials such 
as studies or journal articles to your electronic comments. If you wish 
to include such materials, you must submit three copies to the OSHA 
Docket Office at the address listed above. When submitting such 
materials to the OSHA Docket Office, you must clearly identify your 
electronic comments by name, date, and subject, so that we can attach 
the materials to your electronic comments.
    How to obtain copies of the MUTCD: The Federal Highway 
Administration partnered with three organizations to print copies of 
the Millennium Edition Manual of Uniform Traffic Control Devices for 
sale. The organizations are: (1) American Traffic Safety Services 
Association, 15 Riverside Parkway, Suite 100, Fredericksburg, VA 22406-
1022; Telephone: 1-800-231-3475; FAX: (540) 368-1722; www.atssa.com; 
(2) Institute of Transportation Engineers, 1099 14th Street, NW, Suite 
300 West, Washington, DC 20005-3438; FAX: (202) 289-7722; ; 
www.ite.org; and (3) American Association of State Highway and 
Transportation Officials; www.aashto.org; Telephone: 1-800-231-3475; 
FAX: 1-800-525-5562.
    On-line copies of the Millennium Edition are available for 
downloading from DOT's web site: http://mutcd.fhwa.dot.gov/kno-millennium. On-line copies of the 1988 Edition of the Manual on Uniform 
Traffic Control Devices (Revision 3, dated 9/93, with the November 1994 
Errata No. 1) are available for downloading from OSHA's website: http://www.osha.gov/doc/highway_workzones. In addition, both documents are 
available for viewing and copying at each OSHA Area Office.

FOR FURTHER INFORMATION CONTACT: Nancy Ford, Office of Construction 
Standards and Construction Services, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-3468, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone: (202) 693-2345.

SUPPLEMENTARY INFORMATION:

I. Introduction

    This direct final rule applies to employers involved in road 
construction and repair operations. It addresses the types of signs, 
signals, and barricades that must be used in areas where road-work is 
being performed. The vast majority of road construction projects 
undertaken in the United States are funded through Federal 
transportation grants. As a condition to receiving Federal funding, the 
U.S. Department of Transportation's (DOT's) Federal Highway 
Administration requires compliance with its MUTCD.
    In furtherance of OSHA's statutory mandate to protect the health 
and safety of employees, OSHA also requires employers that are within 
the scope of its authority to comply with the MUTCD. However, OSHA's 
standard incorporates the 1971 version of the MUTCD, which FHWA has 
since updated. The purpose of this direct final rule is to update 
OSHA's standard.

II. Direct Final Rulemaking

    In direct final rulemaking, the agency publishes a final rule in 
the Federal Register with a statement that, unless a significant 
adverse comment is received within a specified period of time, the rule 
will become effective. An identical proposed rule is often published at 
the same time. If no significant adverse comments are submitted, the 
rule goes into effect. If any such comments are received, the agency 
will withdraw the direct final rule. The comments will then be treated 
as comments to the proposed rule. Direct final rulemaking is used where 
the agency anticipates that the rule will be noncontroversial. Examples 
include minor substantive changes to regulations; incorporation by 
reference of the latest edition of technical or industry consensus 
standards, and direct incorporations of mandates from new legislation.
    For purposes of this direct final rulemaking, a significant adverse 
comment is one that explains why the rule would be inappropriate, 
including challenges to the rule's underlying premise or approach, or 
why it would be ineffective or unacceptable without a change. In 
determining whether a significant adverse comment necessitates 
withdrawal of this direct final rule, OSHA will consider whether the 
comment raises an issue serious enough to warrant a substantive 
response in a notice-and-comment process. A comment recommending an 
addition to the rule will not be considered a significant adverse 
comment unless the comment states why this rule would be ineffective 
without the addition. If timely significant adverse comments are 
received, the agency will publish a notice of significant adverse 
comment in the Federal Register withdrawing this direct final rule no 
later than July 15, 2002.
    OSHA is also publishing a companion proposed rule, which is 
essentially identical to the direct final rule. In the event the direct 
final rule is withdrawn because of significant adverse comment, the 
agency can proceed with the rulemaking by addressing the comment

[[Page 18092]]

and again publishing a final rule. The comment period for the proposed 
rule runs concurrently with that of the direct final rule. Any comments 
received under the companion proposed rule will be treated as comments 
regarding the direct final rule. Likewise, significant adverse comments 
submitted to the direct final rule will be considered as comments to 
the companion proposed rule; the agency will consider such comments in 
developing a subsequent final rule.
    OSHA has determined that the subject of this rulemaking is suitable 
for a direct final rule on several grounds. First, in most instances, 
employers have already been required to comply with Revision 3 under 
the DOT rule. Under Title 23 of the U.S. Code, Secs. 109(d) and 402(a), 
the Secretary of Transportation is authorized to promulgate and require 
compliance with uniform guidelines to reduce injuries and fatalities 
from road accidents. Specifically, Sec. 109(d) authorizes DOT to 
require (through its approval of State highway department requirements) 
all highway projects in which Federal funds are involved to comply with 
these types of uniform rules. Highways are broadly defined under 
Sec. 101(a)(11) of the DOT statute, and include roads, streets and 
parkways. Under Sec. 402(a), DOT is authorized to require each State to 
have a highway safety program, including uniform standards for traffic 
safety, approved by DOT. In accordance with this authority, DOT 
promulgated 23 CFR Part 655, subpart F (Traffic Control Devices on 
Federal-Aid and Other Streets and Highways). In Sec. 655.603(a), DOT 
established its MUTCD as ``the national standard for all traffic 
control devices installed on any street, highway, or bicycle trail open 
to public travel * * *'' Under subpart F, the States were required to 
adopt Revision 3 for federally funded highways within two years of its 
issuance. The effective date of the final rule that adopted Revision 3 
was January 10, 1994 [Federal Register/Volume 58, Number 236/Friday, 
December 10, 1993]. A two-year period for transition to full compliance 
with Revision 3 expired January 10, 1996. Transition to full compliance 
with the Millennium edition must be completed by 2003.
    Consequently, employers have already been required to comply with 
Revision 3 for all construction work on all federal-aid highways. In 
addition, all States have required compliance with Revision 3 for most 
other roads (there is some variation among the States regarding the 
extent to which compliance is required on municipal, county and private 
roads).
    Second, Revision 3 and the Millennium editions are updated versions 
of the 1971 ANSI standard and reflect current practice, expertise and 
technology in the industry. Finally, some industry stakeholders have 
asked OSHA to conform its rule with Revision 3 and the Millennium 
Edition.

III. Background

    Currently, under 29 CFR 1926 Subpart G--Signs, Signals, and 
Barricades, OSHA requires that employers comply with the 1971 MUTCD. 
Specifically, employers must ensure that the following conform to the 
1971 MUTCD: traffic control signs or devices used to protect 
construction workers (29 CFR Sec. 1926.200(g)(2)); signaling directions 
by flagmen (29 CFR Sec. 1926.201); and barricades for the protection of 
workers (29 CFR Sec. 1926.202).
    In contrast, a DOT rule, 23 CFR Part 655.601 through 655.603, 
requires that such traffic control signs or devices conform to a more 
recent version of the MUTCD. DOT regulations provide that the MUTCD is 
the national standard for all traffic control devices on streets, 
highways and bicycle trails. DOT ``s rule requires that traffic control 
devices on roads in which federal funds were involved be in substantial 
conformance with its MUTCD. In effect, the MUTCD has become a national 
benchmark for all roads.
    In the early 1970s, the FHWA assumed from ANSI responsibility for 
publishing the MUTCD. The FHWA substantially rewrites the MUTCD every 
10 to 20 years, and amends it every two to three years. Until the 
Millennium Edition was published in December 2000, the most recent 
edition was the 1988 edition. The 1988 edition consisted of 10 parts, 
including Part VI, ``Standards and Guides for Traffic Controls for 
Street and Highway Construction, Maintenance, Utility, and Incident 
Management Operations.'' The FHWA substantially revised and reissued 
Part VI in 1993 (Revision 3). There are substantial differences both in 
substance and format between Revision 3 and the 1971 MUTCD. The most 
recent edition of the MUTCD, the Millennium Edition published in 
December 2000, contains some substantive changes and a new, easier to 
use format. States are required to adopt the Millennium Edition or its 
equivalent by January 2003.
    Several stakeholders asked OSHA to update subpart G, because they 
had to meet the outdated OSHA requirements in addition to the DOT rule. 
They pointed out that Revision 3 and the Millennium Edition reflect 
updated standards and technical advances based on 22 years of 
experience in work zone traffic control design and implementation, as 
well as human behavior research and experience. The National Committee 
on Uniform Traffic Control Devices (``NCUTCD''), consisting of various 
national associations and organizations interested in highway 
construction or highway safety, including the American Road and 
Transportation Builders Association, the Association of American 
Railroads, the American Automobile Association, the National 
Association of Governor's Highway Safety Representatives, and the 
National Safety Council, unanimously resolved in January 1999 to 
request that OSHA adopt Revision 3 in place of the 1971 MUTCD. In May 
2000, OSHA's Advisory Committee on Construction Occupational Safety and 
Health (``ACCSH'') also expressed support for adopting a more recent 
edition of the MUTCD as the OSHA standard for the construction 
industry.
    OSHA reviewed the differences between the 1971 version, Revision 3 
and the Millennium Edition and concluded that compliance with the more 
recently published manuals would provide all the safety benefits (and 
more) of the 1971 version. The differences between OSHA's regulations 
that reference the 1971 MUTCD and DOT's modern regulations create 
potential industry confusion and inefficiency, without in any respect 
advancing worker safety. Accordingly, in an interpretation letter dated 
June 16, 1999, to Cummins Construction Company, Inc., we stated that 
OSHA will accept compliance with Revision 3 in lieu of compliance with 
the 1971 MUTCD referenced in Sec. 1926.200(g) through its de minimis 
policy.
    The numerous and various changes to the 1971 MUTCD reflected in 
Revision 3 and the Millennium Edition stem from over 20 additional 
years of experience in temporary traffic control zone design, 
technological changes, and contemporary human behavior research and 
experience. Revision 3 and the Millennium Edition provide highway work 
zone planners more comprehensive guidance and greater flexibility in 
establishing effective temporary traffic control plans based on type of 
highway, traffic conditions, duration of project, physical constraints 
and the nature of the construction activity. Revision 3 and the 
Millennium Edition, accordingly, better reflect current practices and 
techniques to best ensure highway construction worker safety and 
health.
    Accordingly, OSHA is amending the safety and health regulations for

[[Page 18093]]

construction to adopt and incorporate Revision 3 (and the option to 
comply with the Millennium Edition), instead of the 1971 MUTCD, and to 
make certain editorial changes. The amendment deletes the references in 
29 CFR Secs. 1926.200(g)(2) and 1926.202 to the 1971 MUTCD and inserts 
references to Revision 3 (and the option to comply with the Millennium 
Edition). The amendment clarifies and abbreviates 29 CFR 
Sec. 1926.201(a), by simply adopting the requirements of Revision 3 
(and the option to comply with the Millennium Edition) with regard to 
the use of flaggers. The amendment also makes certain editorial 
corrections, replacing the term workers for the term workmen and the 
term flaggers for the term flagmen in 29 CFR 1926.200(g)(2) and 
1926.201(a).
    By issuing this direct final rule, OSHA is responding to the 
requirements of the Regulatory Flexibility Act and Executive Order 
12866 that agencies review their regulations to determine their 
effectiveness and to implement any changes indicated by the review that 
will make the regulation more flexible and efficient for stakeholders 
and small businesses while maintaining needed protections for workers.
    Updating OSHA's rule will eliminate the technical anomaly of having 
to meet both OSHA's outdated requirement to comply with the 1971 
version and DOT's more modern requirements. Instead, OSHA's rule will 
require compliance with Revision 3 (or, at the option of the employer, 
the Millennium edition). In addition to harmonizing OSHA's requirements 
with those of DOT, the new rule's additional safety measures (described 
below) will be enforceable as OSHA requirements. With the current 
emphasis on rebuilding the Nation's highways and improving safety in 
work zone areas, OSHA's update is particularly appropriate.

IV. Discussion of Changes

Format and Style

    Both the 1971 MUTCD and Revision 3 were written in narrative form 
with ``must/shall,'' ``should,'' and ``may'' sentences indicating 
mandatory requirements, guidance, and options, respectively. These 
verbs were often intermixed within a single paragraph, leading to some 
confusion. In the Millennium Edition, each subsection is organized by 
``standard,'' ``guidance,'' and ``options'' categories. An additional 
category, titled ``support,'' is also included. This format clarifies 
what is expected of employers and the basis for those requirements. 
Pursuant to the requirements of 29 CFR 1926.31, only the mandatory 
language of standards that are incorporated through reference are 
adopted as OSHA standards. Therefore, the summary of changes below will 
focus primarily on the revisions that impose new requirements, or 
modify already existing requirements. The summary does contain short 
discussions on traffic control plans and tapers which, while not 
required by MUTCD, reflect industry practice.
    The 1988 edition of the MUTCD eliminated the term ``flagmen'' and 
``workmen'' and replaced them with the more inclusive ``flaggers'' and 
``workers.'' The direct final rule would amend 29 CFR 1926.200(g)(2), 
1926.201(a) and 1926.203 to be consistent with these changes.
    In the Millennium Edition, the FHWA also changed the title of Part 
6 from ``Standards and Guides for Traffic Controls for Street and 
Highway Construction, Maintenance, Utility, and Incident Management 
Operations'' to ``Temporary Traffic Control.'' The new title is more 
succinct and more accurately describes the contents of the section.

Sections 6A through 6B (Introduction and Fundamental Principles)

    Revision 3 and the Millennium Edition describe an overall ``guiding 
philosophy'' of ``fundamental principles'' for good temporary traffic 
control, which is not explicitly set out in Part VI of the 1971 MUTCD. 
Although these principles do not formally establish new requirements, 
they provide a framework for understanding requirements set out in the 
remainder of Part VI. In the corresponding section, the 1971 ANSI 
standard required that all temporary traffic control devices be removed 
as soon as practical when they are no longer needed. Revision 3 
downgraded this requirement to a recommendation. This issue was 
revisited during the drafting of the Millennium Edition, which once 
again requires the removal of signs when they are no longer needed. The 
Millennium Edition requires that employers remove temporary traffic 
control devices that are no longer appropriate, even when the work is 
only suspended for a short period of time.

Section 6C (Temporary Traffic Control Elements)

    The 1971 MUTCD does not discuss traffic control plans (TCPs), which 
are used by industry to describe traffic controls that are to be 
implemented in moving vehicle and pedestrian traffic through a 
temporary traffic control zone. Revision 3 emphasizes the importance of 
TCPs in facilitating safe and efficient traffic flow. Revision 3 
recognizes that different TCPs are suitable for different projects and 
does not detail specific requirements. The Millennium Edition offers 
expanded guidance and options for TCPs, but it adds no requirements. In 
both Revision 3 and the Millennium Edition, a TCP is recommended but 
not required. Revision 3 and the Millennium Edition also discuss the 
``temporary traffic control zone,'' comprised of several areas known as 
the ``advance warning area,'' ``transition area,'' ``activity area,'' 
and ``termination area.'' In addition, Revision 3 and the Millennium 
Edition explain the need for differing traffic control measures in each 
control zone area.
    The 1971 MUTCD only briefly describes ``tapers'' and provides a 
formula for calculating the appropriate taper length. However, Revision 
3 defines and discusses five specific types of tapers used to move 
traffic in or out of the normal path of travel. It illustrates each of 
them, and sets out specific formulae for calculating their appropriate 
length. In all three editions, information relating to tapers is 
limited to guidance and contains no mandatory requirements.
    All versions of the MUTCD require the coordination of traffic 
movement, when traffic from both directions must share a single lane. 
Revision 3 and the Millennium Edition describe five means of 
``alternate one-way traffic control,'' adding the ``Stop or Yield 
Control Method'' to the methods described in the 1971 MUTCD. The ``Stop 
or Yield Control Method'' is appropriate for a low-volume two-lane road 
where one side is closed and the other side must serve both directions. 
It calls for a stop or yield sign to be installed on the side that is 
closed. The approach to the side that is not closed must be visible to 
the driver who must yield or stop.

Section 6D (Pedestrian and Worker Safety)

    Revision 3 adds a lengthy section, not found in the 1971 MUTCD, 
that provides guidance and options on pedestrian and worker safety. 
Under Revision 3, the key elements of traffic control management that 
should be considered in any procedure for assuring worker safety are 
training, worker clothing, barriers, speed reduction, use of police, 
lighting, special devices, public information, and road closure. 
Revision 3 recommends that these traffic control techniques be applied 
by qualified persons exercising good engineering judgment. The 
Millennium Edition makes this

[[Page 18094]]

recommendation a requirement. The Millennium Edition also requires 
advance notification of sidewalk closures.

Section 6E (Hand Signaling or Flagger Control)

    Revision 3 and the Millennium Edition require that a flagger wear 
an orange, yellow, or ``strong yellow green'' (called ``yellow-green'' 
in Millennium Edition) vest, shirt, or jacket, instead of an ``orange 
vest and/or an orange cap,'' as directed in the 1971 ANSI standard. For 
nighttime work, Revision 3 requires that the outer garment be retro-
reflective orange, yellow, white, silver, or strong yellow-green, or a 
fluorescent version of one of these colors. This clothing must be 
designed to identify clearly the wearer as a person, and the clothing 
must be visible through the full range of body motions. For nighttime 
work, the Millennium Edition requires that the colors noted above be 
retro-reflective, but does not mandate that the clothing be visible 
through the full range of body motions. Both Revision 3 and the 
Millennium Edition allow the employer more flexibility in selecting 
colors.
    Under the 1971 ANSI standard, the flagger was required to be 
visible to approaching traffic at a distance that would allow a 
motorist to respond appropriately. Revision 3 and the Millennium 
Edition contain more specific requirements. Under both versions, 
flaggers must be visible at a minimum distance of 1,000 feet. In 
addition, Revision 3 and the Millennium Edition list training in ``safe 
traffic control practices'' as a minimum flagger qualification.
    Revision 3 and the Millennium Edition depart significantly from the 
1971 ANSI standard by requiring that ``Stop/Slow'' paddles, not flags, 
be the primary hand-signaling device. The paddles must have an 
octagonal shape on a rigid handle, and be at least 18 inches wide with 
letters at least six inches high. The 1971 ANSI standard recommended a 
24-inch width. Revision 3 and the Millennium Edition require that 
paddles be retro-reflectorized when used at night. Flags would still be 
allowed in emergency situations or in low-speed and/or low-volume 
locations. Revision 3 and the Millennium Edition differ in that 
Revision 3's recommendations for flag and paddle signaling practice are 
requirements in the Millennium Edition. In addition, the Millennium 
Edition applies several new requirements when flagging is used. The 
flagger's free arm must be held with the palm of the hand above 
shoulder level toward approaching traffic and the flagger must motion 
with the flagger's free hand for road users to proceed. These 
requirements were guidance in Revision 3, and options in the 1971 ANSI 
standard.

Section 6F (Devices)

    Revision 3 and the Millennium Edition reflect numerous differences 
in the design and use of various traffic control devices, such as 
signs, signals, cones, barricades and markings, used in temporary 
traffic control zones. Several signs or devices are described that are 
not mentioned in Part VI of the 1971 ANSI standard. These signs and 
devices, along with their location in Revision 3 and the Millennium 
Edition, can be found in Table 1.

                                 Table 1
------------------------------------------------------------------------
    New signs and devices          Revision 3        Millennium edition
------------------------------------------------------------------------
Portable Changeable Message   6F-2................  6F.52.
 Signs.
Arrow Displays..............  6F-3................  6F.53.
High-Level Warning Device or  6F-4................  6F.54.
 Flag Tree.
Temporary Raised Islands....  6F-5h...............  6F.63.
Impact Attenuators..........  6F-8a...............  6F.76.
Portable Barriers...........  6F-5g and 8b........  6F.75.
Temporary Traffic Signals...  6F-8c...............  6F.74.
Rumble Strips...............  6F-8d...............  6F.78.
Screens.....................  6F-8e...............  6F.79.
Opposing Traffic Lane         6F-8f...............  6F.64.
 Divider.
Shoulder Drop Off...........  6F-1b(19)...........  6F.41.
Uneven Lanes................  6F-1b(20)...........  6F.42.
No Center Stripe............  6F-1b(21)...........  6F.43.
Be Prepared to Stop.........  Vl-8c sign W20-7b...  6F.15, W3-1a.
Detour Marker and End Detour  6F-1c(4)............  6F.15.
Various Other Warning Signs.  V1-8a, signs W1-4bR,
                               W1-4cR, W1-8, W3-3,
                               W4-1 and W4-3 and
                               V1-8b, signs W5-2a
                               and W8-3a.
------------------------------------------------------------------------
 The dimensions, shape, legends or use of various signs have changed.
  Those changes are reflected in Table 2.


                                 Table 2
------------------------------------------------------------------------
          New signs                Revision 3        Millennium edition
------------------------------------------------------------------------
Turn Off 2-Way Radios and     6F-1b(18a) and (18b)  6F.15, W22-2.
 Cellular Telephones.
Stop Ahead and Yield Ahead..  VI-8a, signs W3-1a    6F.15, W3-1a & W3-
                               and W3-2a.            2a.
Road Narrows and Narrow       VI-8a, signs W5-1     6F.15, W5-1 & W5-2.
 Bridge.                       and W5-2.
Right Lane Ends.............  VI-8c, sign W9-1....  6F.15, W9-1.
Length of Work..............  6F-1c(2)............  6F.15, G20-1.
End Road Work...............  6F-1c(3)............  6F.15, G20-2a.
------------------------------------------------------------------------
 Also, Revision 3 and the Millennium Edition offer expanded options for
  the color of temporary traffic control signs. Signs that under the
  1971 ANSI standard were required to have orange backgrounds may now
  have fluorescent red-orange or flourescent yellow-orange backgrounds.


[[Page 18095]]

    The 1971 ANSI standard required that signs in rural areas be posted 
at least five feet above the pavement; signs in urban areas were 
required to be at least seven feet above the pavement. Revision 3 
eliminated the distinction between urban and rural areas, and 
downgraded the requirement to a recommendation. It recommended that 
signs in all areas have a minimum height of seven feet. In the 
Millennium Edition, the FHWA returned to the 1971 ANSI requirements. 
The Millennium Edition also introduced the requirement that signs and 
sign supports be crashworthy.
    The Millennium Edition introduced and clarified mandatory 
requirements for the design of the following signs: Weight Limit, 
Detour, Road (Street) Closed, One Lane Road, Lane(s) Closed, Shoulder 
Work, Utility Work, signs for blasting areas, Shoulder Drop-Off, Road 
Work next XX KM (Miles), and Portable Changeable Message.
    The dimensions, color or use of certain channelizing devices have 
also changed. ``Channelizing devices'' include cones, tubular markers, 
vertical panels, drums, barricades, temporary raised islands and 
barriers. The 1971 ANSI standard required that traffic cones and 
tubular markers be at least 18 inches in height and that the cones be 
predominantly orange. Revision 3 raised the minimum height for traffic 
cones and tubular markers to 28'' ``when they are used on freeways and 
other high speed highways, on all highways during nighttime, or 
whenever more conspicuous guidance is needed.'' (6F-5b(1), 5c(1)) 
Revision 3 also expanded the color options for cones to include 
fluorescent red-orange and fluorescent yellow-orange. The Millennium 
Edition maintained these requirements.
    Revision 3 and the Millennium Edition require that vertical panels 
be 8 to 12 inches wide, rather than the 6 to 8 inches required by the 
1971 ANSI standard. Under Revision 3 and the Millennium Edition, drums 
must be made of lightweight, flexible and deformable materials, at 
least 36 inches in height, and at least 18 inches in width. Steel drums 
may not be used. The Millennium Edition adds the requirement that each 
drum have a minimum of two orange and two white stripes with the top 
stripe being orange. Revision 3 and the Millennium Edition require that 
delineators only be used in combination with other devices, be white or 
yellow, depending on which side of the road they are on, and be mounted 
approximately four feet above the near roadway edge.
    The 1971 ANSI standard required warning lights to be mounted at 
least 36 inches high. Revision 3 and the Millennium Edition reduced the 
minimum height to 30 inches and introduced new requirements for warning 
lights. Type A low intensity flashing warning lights and Type C steady-
burn warning lights must be maintained so as to allow a nighttime 
visibility of 3000 feet. Type B high intensity flashing warning lights 
must be visible on a sunny day from a distance of 1000 feet.
    Revision 3 and the Millennium Edition contain an additional 
requirement, not found in the 1971 ANSI standard, that requires 
employers to remove channelizing devices that are damaged and have lost 
a significant amount of their retro-reflectivity and effectiveness. 
Revision 3 and the Millennium Edition also specifically prohibit 
placing ballast on the tops of drums or using heavy objects such as 
rocks or chunks of concrete as barricade ballast.
    Revision 3 and the Millennium Edition address in greater detail the 
appearance and use of pavement markings and devices used to delineate 
vehicle and pedestrian paths. They require that after completion of the 
project, pavement markings be properly obliterated to ensure complete 
removal and a minimum of pavement scars. Whereas Revision 3 requires 
that all temporary broken-line pavement markings be at least four feet 
long, the Millennium Edition sets the minimum at two feet.

Section 6G (Temporary Traffic Control Zone Activities)

    This section, not found in the 1971 ANSI standard, provides 
information on selecting the appropriate applications and modifications 
for a temporary traffic control zone. The selection depends on three 
primary factors: Work duration, work location, and highway type. 
Section 6G in both Revision 3 and the Millennium Edition emphasizes 
that the specific typical applications described do not include a 
layout for every conceivable work situation and that typical 
applications should, when necessary, be tailored to the conditions of a 
particular temporary traffic control zone.
    Among the specific new requirements in Revision 3 and the 
Millennium Edition are the following: retro-reflective and/or 
illuminated devices in long term (more than three days) stationary 
temporary traffic control zones; warning devices on (or accompanying) 
mobile operations that move at speeds greater than 20 mph; warning sign 
in advance of certain closed paved shoulders; a transition area 
containing a merging taper in advance of a lane closure on a multi-lane 
road; temporary traffic control devices accompanying traffic barriers 
that are placed immediately adjacent to the traveled way; and temporary 
traffic barriers or channelizing devices separating opposing traffic on 
a two-way roadway that is normally divided.
    The Millennium Edition includes several additional requirements in 
Section 6G. It requires the use of retro-reflective and/or illuminated 
devices in intermediate-term stationary temporary traffic control 
zones. A zone is considered intermediate-term if it is occupying a 
location more than one daylight period up to three days, or if there is 
nighttime work in the zone lasting more than one hour. The Millennium 
Edition also requires a transition area containing a merging taper when 
one lane is closed on a multi-lane road. When only the left lane on 
undivided roads is closed, the merging taper must use channelizing 
devices and the temporary traffic barrier must be placed beyond the 
transition area channelizing devices along the centerline and the 
adjacent lane. In addition, when a directional roadway is closed, 
inapplicable WRONG WAY signs and markings, and other existing traffic 
control devices at intersections within the temporary two-lane two-way 
operations section, must be covered, removed, or obliterated.

Revision 3 Section 6H (Application of Devices)

    Revision 3 and the Millennium Edition provide an extensive series 
of diagrams illustrating ``typical applications'' of the temporary 
traffic control requirements. These illustrations are intended as 
practical guides on how to apply all the factors discussed in other 
chapters and displayed on Figures and Tables throughout Part VI.

Regulatory Planning and Review

Executive Order 12866 (Regulatory Planning and Review)

Relationship to Existing DOT Regulations
    Through this rule, OSHA is requiring that traffic control signs, 
signals, barricades or devices conform to Revision 3 or Part VI of the 
Millennium Edition, instead of the ANSI MUTCD. The ANSI MUTCD was 
issued in 1971. In 1988 the FHWA substantially revised and reissued the 
MUTCD. Since that time, FHWA has published several updates, including a 
1993 revision to Part VI--Revision 3. In December 2000, FHWA published 
a Millennium Edition of the MUTCD that changed the format

[[Page 18096]]

and revised several requirements. Employers that receive Federal 
highway funds are currently required to comply with Revision 3 and have 
up until January 2003 to bring their programs into compliance with the 
Millennium Edition.
    This is a significant regulatory action and has been reviewed by 
the Office of Management and Budget under Executive Order 12866. OSHA 
has determined that this action is not an economically significant 
regulatory action within the meaning of Executive Order 12866. Revision 
3 of the MUTCD adds to the ANSI requirements some new, alternative 
traffic control devices and expanded provisions and guidance materials, 
including new typical application diagrams that incorporate technology 
advances in traffic control device application. Part VI of the 
Millennium Edition includes some alternative traffic control devices 
and only a very limited number of new or changed requirements. However, 
the activities required by compliance with either Revision 3 or the 
Millennium Edition would not be new or a departure from current 
practices for the vast majority of work sites. All of these 
requirements are now or have been part of DOT regulations that cover 
work-related activities on many public roadways.
    According to DOT regulations, the MUTCD is the national standard 
for streets, highways and bicycle trails. While OSHA's de minimus 
policy is applied to situations in which there is failure to comply 
with the 1971 ANSI MUTCD when there is compliance with Revision 3, this 
action will reduce any confusion created by the current requirement for 
employers to comply both with the 1971 ANSI MUTCD and DOT's MUTCD.
Percentage of Roads Covered Under OSHA's Standard Versus the DOT 
Standard
    The majority of U.S. roads are currently covered by DOT regulations 
and their related State MUTCDs. DOT regulations cover all federal-aid 
highways, which carry the majority of traffic. Morever, many states 
extend MUTCD coverage to non-federal-aid and private roads. Thus, the 
requirements imposed by this OSHA direct final rule will be new only 
for the small percentage of the work that is not directly regulated by 
DOT or state transportation agencies.
Federal-Aid Highways
    Employers must comply with the MUTCD for all construction work on 
all federal-aid highways. Although federal-aid highways constitute a 
minority of all public highways as measured by length, these highways 
carry the great majority of traffic. According to OSHA's analysis, 84 
percent of vehicle-miles are driven on federal-aid highways (see Table 
1). Though not a perfect measure, vehicular use corresponds more 
directly than length of road to the need for construction, repair, and 
other work activities addressed by the MUTCD. This suggests that most 
construction and repair activities occur on federal-aid highways. 
Conforming to the standards of the MUTCD during these work activities 
is a clear requirement of receiving federal highway funds and is 
therefore regulated by DOT.
State, Local, County and Municipal Roads (Not Receiving Federal Aid)
    The available data suggest that most non-federal-aid roads are 
required to comply with the MUTCD. Many states choose to regulate 
public roadways that are not federal-aid highways and thereby extend 
the coverage of the MUTCD. For example, OSHA reviewed the practices of 
nine states (Alabama, Arkansas, Colorado, Connecticut, Delaware, 
Kentucky, Michigan, North Carolina, and Texas), which include 23 
percent of all U.S. public roads. In conducting this review, OSHA found 
that eight of the states require MUTCD standards on all state roads, 
while the ninth state requires MUTCD standards on state roads if the 
state contracts the work to be done. Five of these states also require 
that MUTCD standards be met on all county and municipal roads. For the 
sample of nine states, individual state coverage of public roads by 
state MUTCDs ranges from 12 percent to 100 percent (see Table 2). OSHA 
found that, on average, MUTCD coverage of all public roads in these 
nine states is 84 percent. (OSHA computed the average across the nine 
states by weighting by total highway miles.)
Private Roads
    OSHA also examined MUTCD coverage of private roads. Although data 
on the extent of private roads is very limited, the best available 
information indicates that about 20 percent of the total mileage is 
accounted for by private roads (see Table 2). Some of these private 
roads are covered by State MUTCD standards. Of the nine states examined 
by OSHA, one state included private roads under the MUTCD standards if 
the state enforced traffic laws on these roads (e.g., roads in gated 
communities). Another state extended MUTCD standards to private roads 
if the state was involved in road design or approval. A third state 
deferred coverage to municipal ordinances, which may require meeting 
MUTCD standards on private roads. Thus, although it is clear that some 
local governments extend coverage to private roads, no data are 
available to specify with precision the extent to which this is the 
case.
Additional Incentives To Comply With the MUTCD
    The estimates of the percentage of roads and highways covered by 
the MUTCD presented above are conservative. States, localities and 
their contractors have additional incentives to comply with the MUTCD 
when it is not required. OSHA policy reinforces these incentives 
because OSHA does not enforce compliance with the ANSI MUTCD when there 
is compliance with Revision 3.
    Under 23 USC Sec. 402(a), states must have highway safety programs 
that are approved by the Secretary of Transportation. The Secretary is 
directed to promulgate guidelines for establishing these programs. 
Those guidelines state, inter alia, that programs ``should'' conform 
with the MUTCD. DOT does not have the authority to require compliance 
with the MUTCD on roads that do not receive federal aid, but recommends 
it. In light of this, and the statement that the MUTCD is ``the 
national standard for all traffic control devices'' (23 CFR 
Sec. 655.603(a)), the MUTCD has become the standard of care for 
litigation purposes. Thus, when a state or local government engages in 
a road construction project, it should be exercising the reasonable 
standard of care (i.e. compliance with a recent edition of the MUTCD). 
If it is not, it could face substantial liability if the construction 
on its roads is a contributing factor in an accident. While compliance 
with the MUTCD does not insulate a state or locality from liability, it 
significantly reduces its exposure.
    Moreover, many of the contractors who conduct work on covered roads 
are likely to conduct work on non-covered roads. In the interest of 
efficiency, thesecontractors are likely to consistently apply the 
current version of the MUTCD to all work, rather than switch back to 
the ANSI version for a small percentage of their overall business.
    Finally, as is discussed below, signs and devices meeting 1993 
specifications are often less expensive than signs meeting 1971 ANSI 
specifications. This has provided contractors involved in road 
construction and repair operations with a natural incentive to replace 
old

[[Page 18097]]

and worn signs with signs meeting the more up-to-date standard.
Costs Associated With the DOT Standard
    DOT has consistently found that their revisions to the MUTCD as a 
whole and to its various parts have not given rise to new annual costs 
of compliance that are significant within the meaning of that term as 
used in Executive Order 12866. The Federal Register Notice (December 
10, 1993) on the final amendment to the Manual on Uniform Traffic 
Control Devices (MUTCD); Work Zone Traffic Control states:
    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of Department of Transportation 
regulatory policies and procedures. As previously discussed in the 
above sections on ``Changed Standards'' and ``New Devices,'' this 
revision of Part VI adds some new, alternative traffic control devices, 
and only a very limited number of new or changed requirements. Most of 
the changes included in this version of part VI are expanded guidance 
materials, including many new Typical Application Diagrams. The FHWA 
expects that application uniformity will improve at virtually no 
additional expense to public agencies or the motoring public. 
Therefore, based on this analysis a full regulatory evaluation is not 
required.
    The Federal Register Notice (December 18, 2000) on the final 
amendment to the Manual on Uniform Traffic Control Devices for Streets 
and Highways (MUTCD) states:
    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of Department of Transportation 
regulatory policies and procedures. It is anticipated that the economic 
impact of this rulemaking will be minimal. Most of the changes in this 
final rule provide additional guidance, clarification, and optional 
applications for traffic control devices. The FWHA believes that the 
uniform application of traffic control devices will greatly improve the 
traffic operations efficiency and the safety of roadways at little 
additional expense to public agencies or the monitoring public. 
Therefore, a full regulatory evaluation is not required.
    Moreover, OSHA has conducted detailed comparisons of the various 
versions of the MUTCD. The OSHA comparative analysis indicates that the 
majority of changes to the 1971 version offered increased flexibility, 
were advisory in nature, or changed mandatory requirements to non-
mandatory provisions. Table 3 summarizes the differences between the 
1971 ANSI MUTCD and the 1993 Revision that either potentially increase 
costs or lead to increased flexibility. In cases of increased 
flexibility and changes to non-mandatory provisions, it is likely that 
the effect will be to decrease the costs of compliance.
    In a few instances, however, the 1993 Revision mandated sign or 
device changes that could lead to cost increases because contractors 
would need to purchase new signs for some projects. Table 4 summarizes 
these cases, which include specifications for stop/slow paddles, no 
parking signs, ``road narrows'' and other warnings, and reflective 
traffic drums. The table lists the changes in specifications as well as 
presents prices for the 1971 versus the 1993 version of the sign or 
device. Excluded from Table 4 are ``approach warning signs,'' which are 
additional signs required by the 1993 MUTCD in highly vulnerable areas.
    For stop/slow paddles, the more recent MUTCD version of sign (18" 
by 18") is less expensive than the older, ANSI version (24" by 24"), 
with vendors reporting a price difference of $31.50 per sign. No 
parking signs that include the international ``no parking'' symbol (as 
required in the 1993 MUTCD) but do not include a legend are only $0.80 
more than the older ANSI version of the signs containing only a legend 
(the 1993 MUTCD does not require a legend). For ``road narrows'' and 
other warning signs, the MUTCD version (36" by 36") is $31 more than 
the ANSI-specification in the most direct comparison that OSHA 
identified ($90, as compared to $59). One vendor, however, sold a 
version of the new sign using an alternative metal for less than $47. 
Regarding reflective traffic drums, one vendor reported that reflective 
55-gallon metal drums (1971 ANSI standard) are no longer produced. When 
they were last available they sold for $45 to $60 each. A reflective 
traffic drum meeting the MUTCD standard is $68.
    To summarize, prices for signs meeting 1993 MUTCD specifications 
are not significantly higher than prices for signs meeting 1971 ANSI 
specifications; in fact, the prices are often lower. Moreover, for 
devices such as reflective traffic drums, it is not even possible to 
replace old and worn items with items meeting 1971 standards. This 
suggests that contractors involved in road construction and repair 
operations have had an incentive to update to 1993 specifications as 
their equipment has worn out. The primary effect of the OSHA standard, 
will be to speed the process of switching to 1993 specifications for 
contractors who have not already chosen to switch.
    To further gauge the potential burden of updating to 1993 MUTCD 
specifications, OSHA examined the forty-four colored illustrations of 
the different types of typical highway construction workzones presented 
in Sections 6G through 6H of the 1993 MUTCD. The majority of examples 
of workzones presented in the MUTCD represent situations that are 
currently covered by DOT regulations, and would not be affected by the 
OSHA standard. However, OSHA was able to identify three examples of 
situations that may not fall under DOT regulations, but would be 
included in the scope of the OSHA standard.
    The first example examined was a ``Lane closure on minor street,'' 
illustrated by Figure TA-18 (see page 142-3 of the MUTCD). In this 
example, compliance with the 1993 MUTCD would require no changes. 
Requirements would be met using signs and devices meeting the 1971 ANSI 
specifications. Consequently, no incremental costs would be 
attributable to compliance with the 1993 MUTCD.
    The second example examined was a ``Lane closure for one lane-two 
way traffic control,'' illustrated by Figure TA-10 (see page 126-7 of 
the MUTCD). In this setting, compliance with the 1993 MUTCD is achieved 
by adding two flagger signs and four advance warning signs (two ``Right 
[Left] Lane Closed Ahead'' and two ``Road Construction XXX Ft'') to the 
1971 ANSI requirement. In addition, two flagger hand signaling devices 
(sign paddles) meeting the 1993 dimensions (24" by 24") are needed. A 
Flagger sign can be purchased for about $34, while the ``Right [Left] 
Lane Closed Ahead'' and ``Road Construction XXX Ft'' signs can be 
purchased for about $47 each. The two sign paddles are $67.\1\ Thus, 
compliance with the 1993 MUTCD would involved a one-time expenditure of 
$323.
---------------------------------------------------------------------------

    \1\ Prices are from Newman Signs (http://www.newmansigns.com/)
---------------------------------------------------------------------------

    Finally, OSHA examined a third situation, ``Lane closure on low-
volume two-lane road, illustrated by Figure TA-11 (see page 128-9 of 
the MUTCD). It is important to note that this situation would likely 
apply to a county or state road, and most states already extend the 
coverage of the MUTCD in this setting (see OSHA review of 9 states 
presented below). Here, compliance with the 1993 MUTCD is achieved 
through the use of two ``Right [Left] Lane Closed Ahead'' and two 
``Road Construction XXX Ft'')

[[Page 18098]]

to the 1971 ANSI requirement, which can be purchased for about $47 
each.\2\ In addition, one advance warning sign with the international 
symbol for ``yield'' is needed. These can be purchased for roughly 
$100.\3\ Thus, compliance with the 1993 MUTCD would involved a one-time 
expenditure of $288. If it is assumed that contractor chooses to use 20 
drums instead of 20 cones, this would involve an one-time additional 
expenditure of $1,360, increasing compliance costs to $1,648.
---------------------------------------------------------------------------

    \2\ Prices are from Newman Signs (http://www.newmansigns.com/)
    \3\ Prices are from Newman Signs (http://www.newmansigns.com/)
---------------------------------------------------------------------------

    In sum, DOT has consistently found that changes and revisions to 
the MUTCD do not lead to significant compliance costs. OSHA's 
comparative assessment of the 1971 ANSI requirements and the 1993 MUTCD 
tends to support DOT's findings. Because the OSHA regulation applies 
the MUTCD as developed by DOT, the costs of compliance with the OSHA 
regulation will be insignificant as well.
Costs Attributable to the OSHA Standard
    The analysis discussed above indicates that the costs of compliance 
for OSHA's proposed action will not be significant under Executive 
Order 12866. As DOT has estimated, the costs associated with the 
various versions of the MUTCD and its revisions are small. OSHA's 
comparative analysis of the 1971 ANSI and 1993 MUTCD supports DOT's 
estimates. In addition, the overwhelming majority of public roads are 
already covered by DOT regulations and their related State MUTCDs. As 
discussed above, OSHA estimated that more than 80 percent of work 
performed on U.S. roads is covered DOT regulations and their related 
State MUTCDs. Due to the extension of MUTCD requirements to non-
federal-aid and private roads as well as additional incentives to 
comply with the MUTCD in situations where compliance is not mandatory, 
the percentage of work already covered is likely to be much higher than 
80 percent. The costs of compliance for those directly regulated by 
OSHA will, therefore, be substantially lower than those estimated for 
compliance with DOT regulations.
    The differences between OSHA's current regulations that reference 
the ANSI MUTCD and DOT's regulations create potential industry 
confusion and inefficiency. OSHA's comparative analysis of the 1971 
ANSI and 1993 MUTCD indicated that the majority of changes offered 
increased flexibility, were advisory in nature, or changed mandatory 
requirements to non-mandatory provisions. Since the costs of the 
proposed action are so minimal, it is possible that they will be 
completely offset by eliminating the inefficiency associated with 
inconsistent OSHA and DOT regulations as well the direct cost savings 
from enhanced flexibility and changes to non-mandatory provisions 
embodied in the 1993 MUTCD.
Technological and Economic Feasibility
    The MUTCD is a standard that has been routinely updated for decades 
by DOT and in fact predates the federal highway program. The process 
used to update this standard is for DOT to work with state highway 
officials, who provide federal officials with information on the 
evolving nature of traffic control devices and industry practices. The 
federal role consists primarily of compiling this evolving set of 
practices and devices into a national manual--the MUTCD--that includes 
standards, guidance, and options. As noted by a DOT official,\4\ the 
MUTCD essentially codifies current industry practice. Thus, most 
potentially affected parties--local governments, highway and utility 
contractors, and others--already apply the MUTCD, which clearly 
demonstrates that doing so is both technologically and economically 
feasible.
---------------------------------------------------------------------------

    \4\ Personal communication between Rudolph Umbs, Federal Highway 
Administration, and John Duberg, TechLaw, December 12, 2000.
---------------------------------------------------------------------------

Regulatory Flexibility Screening Analysis
    In order to determine whether a regulatory flexibility analysis is 
required under the Regulatory Flexibility Act, OSHA has evaluated the 
potential economic impacts of this action on small entities. Table 5 
presents the data used in this analysis to determine whether this 
regulation would have a significant impact on a substantial number of 
small entities. For purposes of this analysis, OSHA used the Small 
Business Administration (SBA) Small Business Size Standard and defined 
a small firm as a firm with $27.5 million or less in annual receipts.
    OSHA guidelines for determining the need for regulatory flexibility 
analysis require determining the regulatory costs as a percentage of 
the revenues and profits of small entities. The analysis presented here 
is in most respects a worst case analysis. OSHA examined the situation 
of a small firm with less than 20 employees all of whose employees work 
on projects not previously covered by Revision 3 or the Millenium 
Edition. OSHA further assumed that the firm previously complied only 
with the existing OSHA rule (1971 ANSI MUTCD). OSHA derived estimates 
of the profits and revenues per firm for establishments with fewer than 
20 employees for ``Highway and Street Construction'' (SIC 1611) using 
data from Census and Dun and Bradstreet. Compliance costs were 
estimated using the third situation examined under Costs Associated 
with the DOT Standard (``Lane closure on low-volume two-lane road'') 
and assuming the worst-case scenario, where compliance costs were 
$1,648. This value served as OSHA's estimate for upper-bound compliance 
costs per construction crew. OSHA assumed that a highway construction 
crew consists of four employees and computed an estimate of average 
total cost of the regulation per establishment of $2,161. Annualized 
compliance costs were $308 per establishments for small entities, 
amounting to 0.03 percent of revenue and 0.85 percent of profit. Based 
on this worst-case evaluation, OSHA certifies that this regulation will 
not have a significant economic impact on a substantial number of small 
entities.

                       Table 1.--Federal Aid Highway Length, Lane-Miles and Vehicle-Miles
----------------------------------------------------------------------------------------------------------------
                                                       Length of roadway                        Annual Vehicle-
                       System                             (Miles) \1\       Lane-Miles \2\         Miles \3\
----------------------------------------------------------------------------------------------------------------
Interstate Highways.................................              46,564             208,649             648,124
Other National Highways.............................             113,995             333,355             546,028
                                                     -----------------------------------------------------------
    Total National Highways.........................             160,559             542,004           1,194,152
                                                     ===========================================================
    Other Federal-Aid...............................             797,783           1,719,703           1,093,975
                                                     -----------------------------------------------------------

[[Page 18099]]

 
        Total Federal-Aid Highways..................             958,342           2,261,707           2,288,127
                                                     ===========================================================
    Non Federal-Highways............................           2,973,673           5,947,348             420,201
                                                     -----------------------------------------------------------
        Total Highways..............................           3,932,015           8,209,055           2,708,328
                                                     ===========================================================
    Federal-Aid as a Percent of Total...............                 24%                 28%                84%
----------------------------------------------------------------------------------------------------------------
\1\ FHWA, Highway Statistics: 1999, Section V, Table HM-16
\2\ FHWA, Highway Statistics: 1999, Section V, Table HM-48
\3\ FHWA, Highway Statistics: 1999, Section V, Table VM-3

BILLING CODE 4510-26-P

[[Page 18100]]

[GRAPHIC] [TIFF OMITTED] TR15AP02.087


[[Page 18101]]


[GRAPHIC] [TIFF OMITTED] TR15AP02.088


[[Page 18102]]


[GRAPHIC] [TIFF OMITTED] TR15AP02.089


[[Page 18103]]


[GRAPHIC] [TIFF OMITTED] TR15AP02.090


[[Page 18104]]


[GRAPHIC] [TIFF OMITTED] TR15AP02.091


[[Page 18105]]


[GRAPHIC] [TIFF OMITTED] TR15AP02.092


[[Page 18106]]


[GRAPHIC] [TIFF OMITTED] TR15AP02.093


[[Page 18107]]


[GRAPHIC] [TIFF OMITTED] TR15AP02.094


[[Page 18108]]


[GRAPHIC] [TIFF OMITTED] TR15AP02.095


[[Page 18109]]


[GRAPHIC] [TIFF OMITTED] TR15AP02.096

BILLING CODE 4510-26-C

[[Page 18110]]



          Table 4.--Prices for Traffic Warning Signs and Devices Changed by the 1993 MUTCD Requirements
----------------------------------------------------------------------------------------------------------------
         Sign/Device            Summary of change          Source              Price       Applicable  standard
----------------------------------------------------------------------------------------------------------------
`Stop/Slow' Sign Paddle.....  1971 ANSI width       Pac Sign Co. (G-hs-           $65.00  1971 ANSI
                               requirements were     12).
                               (at least) 24
                               inches; Changed to
                               18 inches square in
                               1993 MUTCD.
                                                    John M. Warren, Inc.           33.50  1993 MUTCD
                                                     (TC1006).
`No Parking Any Time'.......  Changed to reflect    John M. Warren, Inc.           12.95  1971 ANSI
                               International         (TS1011).
                               symbol for No
                               Parking.
No Parking: international                           Newman Signs (R7-              12.05  1993 MUTCD
 symbol, without written                             31A).                          8.47  1993 MUTCD
 legend.                                            Newman Signs (R8-3A)
`No Parking' with                                   Pac Sign Co. (G-r-             16.00  1993 MUTCD
 international symbol below                          101be5).                      22.00  1993 MUTCD
 legend.                                            Pac Sign Co. (G-r-
                                                     101ra5).
`Narrow Bridge; `Right Lane   Dimensions changed    Pac Sign Co. (G-w5-            59.00  1971 ANSI
 Ends'; ``Road Narrows'.       from 30X30 in 1971    2ara22; G-w9-1ra22;
                               to 36X36 in 1993.     G-w5-1ra22).
`Right Lane Closed Ahead'...                        Pac Sign Co. (G-w20-           90.00  1993 MUTCD
                                                     5rra27).
                                                    Newman Signs (W20-5R-          46.63  1993 MUTCD
                                                     A).
Reflective Traffic Drum.....  1971 ANSI             1971 ANSI version no    \1\ 45 to 60  1971 ANSI
                               requirement: Metal    longer produced;
                               drums of 30-55        Northeast Traffic
                               gallon capacity.      Control Company.
                              1993 MUTCD            Bent Manufacturing             68.00  1993 MUTCD
                               requirement:          Superdome Drum.
                               Constructed of
                               lightweight,
                               flexible, and
                               deformable
                               materials,'' 36
                               inch height
                               minimum, 18 inch
                               width minimum.
----------------------------------------------------------------------------------------------------------------
Notes:
\1\ When last available; estimate by sales representative.
Price data were obtained from the following Web sites:
John M. Warren, Inc., Mobile, AL
http://www.johnmwarren.com/item.asp?cat=1&ThisPage=0&maxPage=0&prodID=140
http://parkingsignsbypac.safeshopper.com/501/cat501.htm
http://www.johnmwarren.com/item.asp?cat=2&ThisPage=2&maxPage=2&prodID=290
Newman Signs
http://www.newmansigns.com/
Pac Sign Co., Binghamton, NY
http://parkingsignsbypac.safeshopper.com/226/cat226.htm?239
http://parkingsignsbypac.safeshopper.com/544/cat544.htm?239
http://parkingsignsbypac.safeshopper.com/542/cat542.htm?239
http://parkingsignsbypac.safeshopper.com/383/cat383.htm?239
Bent Manufacturing, Huntington Beach, CA
http://www.bentmfg.com/drums.htm


   Table 5.--Data and Calculations for Regulatory Flexibility Analysis
------------------------------------------------------------------------
                  Data Type/Calculation                    Amount/Result
------------------------------------------------------------------------
Receipts (1,000) \1\....................................      $9,807,978
Median return on sales \2\ (in percent).................            3.00
Estimated profit for 1997...............................    $294,239,340
Total employment \1\....................................          42,501
Number of establishments \1\............................           8,104
Employment per establishment (Total employment divided              5.24
 by number of establishments)...........................
Receipts per establishment (Receipts divided by number        $1,210,264
 of establishments).....................................
Profit per establishment (Profit divided by number of            $36,308
 establishments)........................................
Number of crews per establishment (Employment per                   1.31
 establishment divided by 4, assuming 4-person crew)....
Worst-case one-time cost per crew (from economic                  $1,648
 analysis)..............................................
Total one-time cost per establishment (Worst-case one-            $2,161
 time cost per crew multiplied by number of crews per
 establishment).........................................
Annualization factor (10 year life, 7% interest) \3\....            0.14
Annualized cost per establishment (Total one-time cost              $308
 per establishment multiplied by annualization factor)..
Cost as a percentage of receipts per establishment                  0.03
 (Annualized cost per establishment divided by receipts
 per establishment).....................................
Cost as a percentage of profit per establishment                   0.85
 (Annualized cost per establishment divided by profit
 per establishment).....................................
------------------------------------------------------------------------
\1\ Data from the U.S. Bureau of Census, ``Number of Firms, Number of
  Establishments, Employment, Annual Payroll, and Receipts by Employment
  Size of the Enterprise for the United States, All Industries--1997,''
  (http://www.census.gov/csd/susb/susb2.htm#go97) for SIC 1611, Highway
  and Street Construction (Enterprises with less than 20 employees).
\2\ Data from Dun and Bradstreet, ``Industry Norms & Key Business
  Ratios, 1998-1999,'' for SIC 1611, Highway and Street Construction.
\3\ Annualization factor (Af) computed using the formula on page 18111:
where i is the interest rate and n is the useful life of the equipment.


[[Page 18111]]

[GRAPHIC] [TIFF OMITTED] TR15AP02.031

Unfunded Mandates

    This direct final rule, which amends Subpart G--Signs, Signals, and 
Barricades (29 CFR 1926.200(g)(2), 201(a), 202 and 203) has been 
reviewed in accordance with the Unfunded Mandates Reform Act of 1995 
(UMRA) (2 U.S.C. Secs. 1501 et seq.). For the purposes of the UMRA, the 
Agency certifies that this direct final rule does not impose any 
Federal mandate that may result in increased expenditures by State, 
local, or tribal governments, or increased expenditures by the private 
sector, of more than $100 million in any year.

Federalism

    OSHA has reviewed this direct final rule in accordance with the 
Executive Order on Federalism (Executive Order 13132, 64 FR 43255, 
August 10, 1999), which requires that agencies, to the extent possible, 
refrain from limiting State policy options, consult with States prior 
to taking any actions that would restrict State policy options, and 
take such actions only when there is clear constitutional authority and 
the presence of a problem of national scope. The Order provides for 
preemption of State law only if there is a clear Congressional intent 
for the Agency to do so. Any such preemption is to be limited to the 
extent possible.
    Section 18 of the Occupational Safety and Health (OSH) Act (29 
U.S.C. Secs. 651 et seq.) expresses Congress' intent to preempt State 
laws where OSHA has promulgated occupational safety and health 
standards. Under the OSH Act, a State can avoid preemption on issues 
covered by Federal standards only if it submits, and obtains Federal 
approval of, a plan for the development of such standards and their 
enforcement. 29 U.S.C. Sec. 667. Occupational safety and health 
standards developed by such Plan States must, among other things, be at 
least as effective in providing safe and healthful employment and 
places of employment as the Federal standards. Subject to these 
requirements, State-Plan States are free to develop and enforce their 
own requirements for road-construction safety.
    Although Congress has expressed a clear intent for OSHA standards 
to preempt State job safety and health rules in areas involving the 
safety and health of road-construction workers, this direct final rule 
nevertheless limits State policy options to a minimal extent. DOT 
requires compliance with the MUTCD for ``application on any highway 
project in which Federal highway funds participate and on projects in 
federally administered areas where a Federal department or agency 
controls the highway or supervises the traffic operations.'' 23 CFR 
Sec. 655.603(a). For this work, which represents the majority of 
construction work in every State, all States (including State-plan 
States) must require compliance with the current edition of the MUTCD 
or another manual that substantially conforms to the current edition. 
States have been required to enforce Revision 3 or their own 
substantially conforming manual since 1994. DOT regulations allow 
States until January 2003 to adopt the Millennium Edition, or another 
manual that substantially conforms to the Millennium Edition. See 23 
CFR 655.603(b). In addition, States must have highway safety programs 
that are approved by the Secretary of Transportation, even for roads 
that do not receive Federal aid. The Secretary is directed to 
promulgate guidelines for establishing these programs. 23 U.S.C. 
Sec. 402(a). Those guidelines state, inter alia, that programs should 
conform with the current edition of the MUTCD. Accordingly, most States 
require compliance with the latest edition of the MUTCD even on roads 
that receive no Federal funding. The requirements described in this 
document are new requirements only for the very small percentage of 
employers that are not already covered by the DOT regulations or 
corresponding State requirements. Therefore, OSHA is only limiting 
State policy options to the extent that it requires State-plan States 
to apply the provisions of Revision 3 or the Millennium Edition to that 
extremely small percentage of employers. (See economic analysis) OSHA 
concludes that this action does not significantly limit State policy 
options.

State Plan Standards

    The 26 States or territories with OSHA-approved occupational safety 
and health plans must adopt an equivalent amendment or one that is at 
least as protective to employees within six months of the publication 
date of this final standard. These are: Alaska, Arizona, California, 
Connecticut (for State and local government employees only), Hawaii, 
Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New 
Mexico, New Jersey (for State and local government employees only), New 
York (for State and local government employees only), North Carolina, 
Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, 
Virginia, Virgin Islands, Washington, and Wyoming.

Paperwork Reduction Act

    This action does not impose new information collection requirements 
for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 
Secs. 3501-30.

Public Participation

    Interested persons are requested to submit written data, views, and 
arguments concerning this direct final rule. These comments must be 
received by June 14, 2002 and submitted in quadruplicate to Docket No. 
S-018, Docket Office, Room N2625, Occupational Safety and Health 
Administration, U. S. Department of Labor, 200 Constitution Avenue, 
NW., Washington, DC 20210.
    Alternatively, one paper copy and one disk (3 \1/2\ inch floppy in 
WordPerfect 6.0 or 8.0 or in ASCII) may be sent to that address, or one 
copy faxed to (202) 693-1648 and three paper copies mailed to the 
Docket Office mailing address; or one copy e-mailed to 
ecomments.osha.gov and one paper copy mailed to the Docket Office 
mailing address.
    All written comments received within the specified comment period 
will be made a part of the record and will be available for public 
inspection and copying at the above Docket Office address.
    OSHA requests comments on all issues related to changing the 
references in the safety and health regulations for construction from 
the 1971 MUTCD to Revision 3 (and, at the option of the employer, the 
Millennium Edition). OSHA also welcomes comments on the Agency's 
findings that there are not negative economic, environmental or other 
regulatory impacts of this action on the regulated community. OSHA is 
not requesting comment on any issues or opening the record for any 
issue other than those related to this amendment to 29 CFR 
Secs. 1926.200, 201, 1926.202 and 203.
    If OSHA receives no significant adverse comments on this amendment, 
OSHA will publish a Federal Register document confirming the effective 
date of this direct final rule. Such confirmation may include minor 
stylistic or technical changes to the amendment that appear to be 
justified. For the purpose of legal review, OSHA views the date of 
confirmation of the effective date of this amendment as the date of 
issuance.
    If OSHA receives significant adverse comment on this amendment, it 
will withdraw the amendment and proceed with the proposed rule 
addressing the change of reference from the 1971 MUTCD to Revision 3 
and the

[[Page 18112]]

Millennium Edition published in the Proposed Rules section of today's 
Federal Register.

List of Subjects in 29 CFR Part 1926

    Incorporation by reference, MUTCD, Occupational Safety and Health, 
Traffic control devices.

Authority and Signature

    This document was prepared under the direction of John Henshaw, 
Assistant Secretary of Labor for Occupational Safety and Health, 200 
Constitution Avenue, NW., Washington, DC 20210.
    This action is taken pursuant to sections 4, 6, and 8 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. Secs. 653, 655, 
657), section 4 of the Administrative Procedure Act (5 U.S.C. 
Sec. 553), Section 107 of the Contract Work Hours and Safety Standards 
Act (Construction Safety Act), 40 U.S.C. 333, Secretary of Labor's 
Order No. 3-2000 (65 F.R. 50017), and 29 CFR Part 1911.

    Signed at Washington, D.C., this 3rd day of April, 2002.
John Henshaw,
Assistant Secretary of Labor.

    Part 1926 of Title 29 of the Code of Federal Regulations is hereby 
amended as set forth below:

PART 1926--[AMENDED]

    1. The authority citation for Subpart G of Part 1926 is revised to 
read as follows:

    Authority: Sec. 107, Contract Work Hours and Safety Standards 
Act (Construction Safety Act) (40 U. S. C. 333); secs. 4, 6, 8, 
Occupational Safety and Health Act of 1970 (29 U. S. C. 653, 655, 
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 
25059), 9-83 (48 FR 35736), or 3-2000 (65 FR 50017) as applicable, 
29 CFR Part 1911.

Subpart G--[Amended]

    2. Paragraph (g)(2) of Sec. 1926.200 is revised to read as follows:


Sec. 1926.200  Accident prevention signs and tags

* * * * *
    (g) * * *
    (2) All traffic control signs or devices used for protection of 
construction workers shall conform to Part VI of the Manual of Uniform 
Traffic Control Devices (``MUTCD''), 1988 Edition, Revision 3, 
September 3, 1993, FHWA-SA-94-027 or Part VI of the Manual on Uniform 
Traffic Control Devices, Millennium Edition, December 2000, FHWA, which 
are incorporated by reference. The Director of the Federal Register 
approves this incorporation by reference in accordance with 5 U.S.C. 
552(a) and 1 CFR Part 51. You may obtain a copy of the Millennium 
Edition from the following organizations: American Traffic Safety 
Services Association, 15 Riverside Parkway, Suite 100, Fredericksburg, 
VA 22406-1022; Telephone: 1-800-231-3475; FAX: (540) 368-1722; 
www.atssa.com; Institute of Transportation Engineers, 1099 14th Street, 
NW, Suite 300 West, Washington, DC 20005-3438; FAX: (202) 289-7722; 
www.ite.org; and American Association of State Highway and 
Transportation Officials; www.aashto.org; Telephone: 1-800-231-3475; 
FAX: 1-800-525-5562. Electronic copies of the MUTCD 2000 are available 
for downloading at http://mutcd.fhwa.dot.gov/kno-millennium. Electronic 
copies of the 1988 Edition MUTCD, Revision 3, are available for 
downloading at http://www.osha.gov/doc/highway_workzones. Both 
documents are available for inspection at the OSHA Docket Office, Room 
N2625, U.S. Department of Labor, 200 Constitution Avenue, NW, 
Washington, DC 20210 or at the Office of the Federal Register, 800 
North Capitol Street, NW, Suite 700, Washington, DC.
* * * * *
    3. Paragraph (a) of Sec. 1926.201 is revised to read as follows:


Sec. 1926.201  Signaling.

    (a) Flaggers. Signaling by flaggers and the use of flaggers, 
including warning garments worn by flaggers shall conform to Part VI of 
the Manual on Uniform Traffic Control Devices, (1988 Edition, Revision 
3 or the Millennium Edition), which are incorporated by reference in 
Sec. 1926.200(g)(2).
* * * * *
    4. Section 1926.202 is revised to read as follows:


Sec. 1926.202  Barricades

    Barricades for protection of employees shall conform to Part VI of 
the Manual on Uniform Traffic Control Devices (1988 Edition, Revision 3 
or Millennium Edition), which are incorporated by reference in 
Sec. 1926. 200(g)(2).
    5. Paragraph (c) of Sec. 1926.203 is revised to read as follows:


Sec. 1926.203  Definitions applicable to this subpart.

* * * * *
    (c) Signals are moving signs, provided by workers, such as 
flaggers, or by devices, such as flashing lights, to warn of possible 
or existing hazards.
* * * * *
[FR Doc. 02-8773 Filed 4-12-02; 8:45 am]
BILLING CODE 4510-26-P