[Federal Register Volume 69, Number 93 (Thursday, May 13, 2004)]
[Proposed Rules]
[Pages 26513-26526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10902]



[[Page 26513]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 630

[FHWA Docket No. FHWA-2001-11130]
RIN 2125-AE29


Work Zone Safety and Mobility

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Supplemental notice of proposed rulemaking (SNPRM); request for 
comments.

-----------------------------------------------------------------------

SUMMARY: The FHWA proposed in an earlier notice of proposed rulemaking 
(NPRM) to amend its regulation that governs traffic safety and mobility 
in highway and street work zones. In response to this NPRM, the FHWA 
received several comments that raised concerns about the flexibility 
and scalability in the implementation of the provisions of the proposed 
rule. The FHWA believes that these comments raise valid points, and has 
decided to issue this supplemental notice to address the comments 
received in response to the NPRM.

DATES: Comments must be received by June 14, 2004.

ADDRESSES: Mail or hand deliver comments to the U.S. Department of 
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590-0001, or submit electronically at 
http://dmses.dot.gov/submit or fax comments to (202) 493-2251. 
Alternatively, comments may be submitted via the Federal eRulemaking 
Portal at http://www.regulations.gov. All comments must include the 
docket number that appears in the heading of this document. All 
comments received will be available for examination and copying at the 
above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, 
except Federal holidays. Those desiring notification of receipt of 
comments must include a self-addressed, stamped postcard or you may 
print the acknowledgment page that appears after submitting comments 
electronically. Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70, Pages 19477-78) or you may visit 
http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Scott Battles, Office of 
Transportation Operations, HOTO-1, (202) 366-4372; or Mr. Raymond 
Cuprill, Office of the Chief Counsel, HCC-30, (202) 366-0791, Federal 
Highway Administration, 400 Seventh Street, SW., Washington, DC 20590-
0001. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    You may submit or retrieve comments online through the Document 
Management System (DMS) at: http://dmses.dot.gov/submit. Acceptable 
formats include: MS Word (versions 95 to 97), MS Word for Mac (versions 
6 to 8), Rich Text File (RTF), American Standard Code for Information 
Interchange (ASCII)(TXT), Portable Document Format (PDF), and 
WordPerfect (versions 7 to 8). The DMS is available 24 hours each day, 
365 days each year. Electronic submission and retrieval help and 
guidelines are available under the help section of the web site. An 
electronic copy of this document may also be downloaded by using a 
computer, modem, and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may also reach the Office of the Federal 
Register's Home page at: http://www.archives.gov and the Government 
Printing Office's Web page at: http://www.access.gpo.gov/nara.

Background

    Pursuant to the requirements of section 1051 of the Intermodal 
Surface Transportation Efficiency Act of 1991 (ISTEA), (Pub. L. 102-
240, 105 Stat. 1914; Dec. 18, 1991), the FHWA developed a work zone 
safety program to improve work zone safety at highway construction 
sites. The FHWA implemented this program through non-regulatory action 
by publishing a notice in the Federal Register on October 24, 1995 (60 
FR 54562). This notice established the National Highway Work Zone 
Safety Program (NHWZSP) to enhance safety at highway construction, 
maintenance and utility sites. In this notice, the FHWA indicated the 
need to update its regulation on work zone safety (23 CFR 630, subpart 
J).
    As a first step in considering amending its work zone safety 
regulation, the FHWA published in the Federal Register an advance 
notice of proposed rulemaking (ANPRM) on February 6, 2002, at 67 FR 
5532. The ANPRM solicited information on the need to amend the 
regulation to better respond to the issues surrounding work zones, 
namely the need to reduce recurrent roadwork, the duration of work 
zones, and the disruption caused by work zones. We received several 
comments in response to the ANPRM.
    As a result of the comments received on the ANPRM, the FHWA 
published a notice of proposed rulemaking (NPRM) on May 7, 2003, at 68 
FR 24384 to facilitate consideration of the broader safety and mobility 
impacts of work zones in a more coordinated and comprehensive manner.
    The primary message that the NPRM conveyed was that the trends of 
increased road construction, growing traffic, increased crashes, and 
public frustration with work zones call for a more broad-based 
understanding, examination, and management of the safety and mobility 
impacts of work zones. The provisions proposed in the NPRM were 
intended to facilitate consideration and management of the broader 
safety and mobility impacts of work zones in a more coordinated and 
comprehensive manner, starting early in project development and 
continuing through implementation. These provisions would help State 
Departments of Transportation (DOTs) meet current and future work zone 
safety and mobility challenges, and serve the needs of the American 
people.
    The provisions proposed in the NPRM were intended to facilitate 
consideration and management of the broader safety and mobility impacts 
of work zones in a coordinated and comprehensive manner across project 
development stages. While most of the respondents agreed with the 
intent and the concepts proposed in the NPRM, they identified the need 
for flexibility and scalability in the implementation of the provisions 
of the proposed rule. They noted that some of the terms used in the 
proposed rule were ambiguous and lent themselves to subjective 
interpretation, and that there was a noticeable negative tone in the 
proposal. Respondents also commented that the documentation 
requirements in the proposal would impose time and resource burdens on 
State DOTs. The FHWA is issuing this SNPRM to address these concerns 
raised by the respondents.
    Work zone safety and mobility issues, and the need to update 23 CFR 
630, Subpart J, were discussed in the NPRM around the following three 
key themes:

(1) Work Zone Safety and Mobility Issues and Trends

     More Work Zones. Work zones are a necessary part of 
meeting the need to maintain and upgrade our aging highway 
infrastructure. With most of our highways at or near the end of their

[[Page 26514]]

service life, system preservation (resurfacing, restoration, 
rehabilitation, reconstruction) is a key responsibility of 
transportation agencies throughout the nation and this implies more 
work zones. Work zones cause safety and mobility impacts on the 
traveling public, businesses, highway workers, and transportation 
agencies, resulting in an overall loss in productivity and growing 
frustration.
     Growing Traffic Volumes and Congestion. At the same time, 
in many locations, traffic volumes continue to grow and create more 
congestion. As vehicle travel continues to increase significantly 
faster than miles of roadway, we have a growing congestion problem that 
is exacerbated by work zones.
     Work Zone Safety Continues to be a Concern. Work zone 
crashes continue to grow, resulting in fatalities and injuries to 
motorists and highway workers.
     More Work is being Done Under Traffic and Contractors are 
under Added Pressure. Current operating environments require work to be 
done near moving traffic, placing additional pressure on contractors to 
expedite construction and minimize disruption by reducing their work 
hours, compressing their schedules and shifts, and increasing the 
amount of night work. We need to ensure safety while preserving 
mobility and also need to be aware of the quality of work implications 
of such operating circumstances.
     Customers are Dissatisfied with Work Zones. In addition to 
increased road construction, growing traffic, and increases in crashes, 
our customers have indicated that work zones are one of the major 
reasons for their dissatisfaction with highway travel. Public 
frustration with work zones indicates that more effort is required to 
meet the needs and expectations of the American public.

(2) Need for More Comprehensive Assessment and Management of Work Zone 
Safety and Mobility Impacts

     The above stated work zone safety and mobility issues and 
trends indicate that we need to broaden our perspective on work zones, 
and be more comprehensive in our understanding, assessment, and 
management of work zone safety and mobility impacts.
     Over the years, highway professionals have devised and 
implemented several strategies and innovative practices for minimizing 
the disruption caused by work zones, while ensuring successful project 
delivery. However, the current and expected level of investment 
activity in highway infrastructure (a significant portion of which is 
for maintenance and reconstruction of existing roadways) implies that 
increasingly, work will be done near traffic. Therefore, it is 
important that we broaden our understanding of work zone impacts and 
develop comprehensive mitigation measures that address both work zone 
safety and mobility.

(3) Current Regulation is Narrow and Outdated

     The current regulation has a broadly stated purpose of 
providing guidance and establishing procedures to ensure that adequate 
consideration is given to motorists, pedestrians, and construction 
workers on all Federal-aid construction projects. However, the content 
of the current regulation is focused primarily on the development of 
traffic control plans (TCPs), the operation of work zones on two-lane-
two-way roadways, and other provisions that address project 
responsibility, pay items, training, and process review and evaluation.
     The provisions in the current regulation primarily address 
the issue of traffic control through the work zone itself. At the time 
this regulation was written (i.e., at the beginning stages of 
rehabilitation and reconstruction activity), work zone issues were just 
emerging. TCPs for work zones are still essential; however, today's 
environment includes new challenges due to growing congestion, 
increasing reconstruction and public frustration with work zones. The 
impacts of work zones may extend to an area much bigger than the actual 
work area, and may be felt on the corridor on which the work is being 
performed, adjacent and(or) alternate routes, alternate modes, and the 
immediate transportation network. In order to be able to address these 
new challenges, we need to clearly understand the broader safety and 
mobility impacts of work zones, and appropriately adopt additional 
strategies for sustained transportation management and operations, 
performance measurement and assessment, and public information and 
outreach.
    The FHWA published an NPRM on May 7, 2003, that proposed to 
facilitate assessment of the broader safety and mobility impacts of 
work zones in a coordinated and comprehensive manner across project 
development stages, and development of broader transportation 
management strategies to minimize these work zone impacts.
    The NPRM proposed several key provisions, which were intended to 
bring about a change in how highway projects are planned, designed and 
built, so as to account for the safety and mobility of the traveling 
public and the safety of highway workers. These proposals included the 
following:
    (1) Change the title of 23 CFR 630, Subpart J to ``Work Zone Safety 
and Mobility.''
    (2) Change the structure of the regulation to include separate 
``Policy Level'' and ``Project Level'' provisions, with a clear 
connection between the two levels.
    (3) Allow State transportation departments (hereinafter referred to 
as ``States'') to develop and adopt work zone safety and mobility 
policies. These policies would support the systematic consideration of 
the safety and mobility impacts of work zones during project 
development; and address the safety and mobility needs of all road 
users, workers, and other affected parties on Federal-aid highway 
projects.
    (4) Retain the current ``Training'' requirement, and expand it to 
include transportation management in addition to traffic control 
related training.
    (5) Modify the current ``Process Review and Evaluation'' 
requirements to provide flexibility to States with regard to the 
conduct of the reviews, and the frequency and the type of reviews.
    (6) Allow States to analyze work zone crash data to correct 
deficiencies on projects, and to continually improve work zone 
practices and procedures. This would also encourage States to collect 
and analyze work zone mobility data.
    (7) Allow States to conduct work zone impacts analysis during 
project development to better understand individual project 
characteristics and the associated work zone impacts. This would 
facilitate better decisionmaking on alternative project options and 
design strategies, and the development of appropriate work zone impact 
mitigation measures.
    (8) Allow States to develop Transportation Management Plans (TMPs) 
for projects as determined by the State's policy and the results of the 
work zone impacts analysis. A TMP would include requirements for a TCP, 
and if necessary for the project, a Transportation Operations Plan 
(TOP) and a Public Information and Outreach Plan (PIOP).
    (9) Include provisions that would allow States to be more creative 
and performance oriented in their procurement processes by allowing 
flexibility to choose either method-based or performance-based 
specifications for their contracts. In the case of method-based 
specifications,

[[Page 26515]]

this would require unit pay items for implementing the TCP.
Why Are We Issuing This SNPRM?
    We received a substantial number of comments (62 total respondents) 
in response to the NPRM from both the public sector and private 
industry. While most of the respondents agreed with the intent and the 
concepts proposed in the NPRM, they recommended that the proposed 
provisions be revised and altered so as to make them practical for 
application in the field. The four major issues that the respondents 
raised are as follows:
    (1) The need for State flexibility and scalability in the 
implementation of the provisions of the proposed rule.
    (2) Some of the terms used in the proposed rule are ambiguous and 
lend themselves to subjective interpretation.
    (3) The negative tone in the proposal with respect to the current 
state of work zone safety and mobility in general.
    (4) The documentation requirements in the proposal would impose 
additional time and resource burdens on State Departments of 
Transportation (DOTs).
    The issues raised by the respondents made it clear that the 
language as proposed in the NPRM was inadequate for real-world 
application. Therefore, in this SNPRM we are proposing to revise the 
regulatory language to reflect the following three key changes.:
    (1) We propose to remove and clarify ambiguous terminology, and 
make the provisions more positive sounding.
    (2) We propose to reorganize the content and soften and clarify the 
language, and provide clear explanation of the intent of the 
provisions.
    (3) We propose to provide for appropriate room and flexibility to 
States to address the most critical issues of flexibility, scalability, 
and documentation needs.
    We believe that we have addressed all comments received in response 
to the NPRM that are within the scope of this rulemaking, and the need 
to broaden the current thinking with respect to preserving the safety 
and mobility of our transportation system when performing work on our 
highways.

Summary Discussion of Comments Received on the NPRM

    The following discussion provides an overview of the comments 
received in response to the NPRM. While this section provides an 
overview, the next section provides a detailed analysis and discussion 
of the comments on specific sections of the NPRM, along with and FHWA's 
proposed resolution.
Profile of Respondents
    We received a total of 62 responses to the docket. About 61 percent 
of the respondents were from the public sector or represented public 
sector interests, 26 percent of the respondents were from the private 
sector or catered to private sector interests, 10 percent of the 
respondents represented both public and private sector interests, while 
the remaining 3 percent did not indicate their affiliation.
    The break up of the agency types of the different respondents 
present the following statistics: About 59 percent of the respondents 
belonged to DOTs (either State or local); 3 percent of the respondents 
were contractors; 6 percent of the respondents were either private 
individuals or consultants; 6 percent of the respondents represented 
private sector equipment/technology providers; 23 percent of the 
respondents represented trade associations and special interest groups, 
including the American Traffic Safety Services Association (ATSSA), the 
American Road Transportation Builders Association (ARTBA) and the 
Associated General Contractors (AGC) of America; and 3 percent of the 
respondents did not indicate their agency affiliations.
    The respondents represented a good cross-section of job categories, 
ranging from all aspects of DOT function, to engineering/traffic/
safety/design, to construction and utilities.
    The American Association of State Highway and Transportation 
Officials (AASHTO) provided a consolidated response to the NPRM on 
behalf of its member States. Several State DOTs provided their 
responses through AASHTO's response, while others submitted their 
comments individually. In general, AASHTO indicated that it fully 
supports the goals of increased safety and mobility throughout our 
Nation's work zones, but that some of the mandatory provisions in the 
proposed NPRM language would impose additional time, resource and 
financial burdens on the States and restrict their ability to perform 
their responsibilities effectively within the available constraints.
Overall Summary of Comments
    This discussion provides a summary of the comments on the NPRM, and 
provides an overview of what the FHWA proposes to do in response.
    Overall Position of Respondents. About 32 percent of the 
respondents generally supported the provisions proposed in the NPRM, 
about 60 percent of the respondents agreed with the intent and the 
concepts but did not agree with many of the mandatory provisions, about 
2 percent of the respondents were neutral, and the position of the 
remaining 6 percent of the respondents was unclear.
    Of the 32 percent respondents who were supportive, 3 percent 
belonged to DOTs, 2 percent were contractors, 3 percent were private 
individuals and consultants, 6 percent were equipment/technology 
providers, and 18 percent were from trade associations/special interest 
groups. These respondents were not necessarily supportive of all the 
provisions in the individual sections, but rather their overall 
position on the NPRM was supportive. In fact, many of these respondents 
provided suggestions on modifications and revised language for specific 
provisions as they deemed appropriate.
    For example, the Maryland State Highway Administration (MD-SHA) 
concurred with most provisions as proposed in the NPRM, and with the 
increased emphasis on consideration of work zone safety and mobility 
during all phases of project development, while providing specific 
recommendations for changing the language in some of the sections. For 
instance, they suggested that we include examples of ``other affected 
parties'' in Sec.  630.1002, ``Purpose.''
    Of the 60 percent of respondents who agreed with the intent and 
concepts proposed but did not agree with the mandatory provisions, 55 
percent belonged to DOTs, 2 percent were contractors, 2 percent were 
from trade associations/special interest groups, and the remaining 1 
percent did not indicate their agency affiliation. These respondents 
expressed support for the intent and general concepts proposed, but 
also indicated that blanket mandatory requirements should not be 
imposed to achieve the desired results. For example, many DOTs and the 
AASHTO commented that the provisions proposed under Sec.  
630.1012(b)(1), ``Work Zone Impacts Analysis'' should be provided as 
guidance as to what a work zone impacts analysis may entail, rather 
than requiring all the activities to be performed for all projects.
    The overall position of the respondents clearly indicates that the 
majority of the respondents are supportive of the intent and concepts 
proposed in the NPRM, but they do not support mandatory requirements. 
Therefore, in this SNPRM we propose to alter the provisions in order to 
remove certain mandatory requirements that are overly restrictive. For 
example, in the SNPRM regulatory language, we are

[[Page 26516]]

proposing to remove the mandatory requirement for conducting a work 
zone impacts analysis which was proposed in Sec.  630.1012(b)(1) of the 
NPRM. We are instead proposing to embed the work zone impacts analysis 
in the proposed requirement for a TMP. The regulatory language that was 
proposed for the work zone impacts analysis in the NPRM is now proposed 
to be provided as guidance for DOTs as to how work zone impacts 
analysis may be conducted for individual projects.
    The major issues raised by the respondents are discussed in the 
following paragraphs.
    Need for State flexibility and scalability in the implementation of 
the provisions of the proposed rule. In general, many of the 
respondents indicated that the provisions of the proposed rule need to 
be flexible enough for States to be able to apply them appropriately to 
the different types of projects located in a wide range of areas. Such 
flexibility would eliminate additional efforts, resources, and time 
that may not always be required for smaller projects.
    For example, the State DOTs of North Dakota, South Dakota, 
Nebraska, Montana and Idaho commented that the rule needs to 
differentiate between provisions for ``metropolitan'' and ``rural'' 
areas. They cited that the costs and efforts involved in implementing 
some of the mobility related provisions will be too prohibitive to 
justify any benefits in rural areas. Similarly, several States also 
indicated that the rule needs to distinguish between provisions for 
``congested'' and ``non-congested'' areas. Further, several respondents 
indicated that short-term and maintenance/utility type work zones are 
not very clearly addressed in the NPRM, such as, providing waivers for 
maintenance/short-term work zones from the provisions in Sec.  
630.1012(b)(1), ``Work Zone Impacts Analysis,'' and Sec.  
630.1012(b)(2), ``Transportation Management Plan (TMP).''
    The FHWA understands the need for such flexibility, which is why 
the proposed provisions in the NPRM were written in general terms which 
would allow States to customize the provisions according to their 
unique operating environments and individual project needs. For 
example, in Sec.  630.1012(b)(1), ``Work Zone Impacts Analysis,'' of 
the NPRM, the language states that the scope and level of detail of the 
impacts analysis will vary based on the States' policies, and their 
understanding of the anticipated severity of work zone impacts due to 
the project. It also provides that if the State determines that a 
project is expected to have minimal sustained work zone impacts, they 
may exempt the project from the impacts analysis. However, the language 
when put in context with the remaining provisions in the section did 
not clearly indicate that States may exempt specific types of projects 
from the impacts analysis by providing policy level waivers for those 
projects. The FHWA proposes to remove the mandatory need for an impacts 
analysis, which is embedded indirectly in the TMP section of this 
proposal. We have included such flexibility (where appropriate) in all 
other sections of this proposal, which are discussed in detail in the 
following section.
    Some of the terms used in the proposed rule are ambiguous and lend 
themselves to subjective interpretation. There was an overwhelming 
observation by many respondents that some of the terms used in the 
proposed rule are very ambiguous and that they lend themselves to 
subjective interpretation. The AASHTO and several DOTs further added 
that these terms, when used in the context of the proposed provisions, 
leave the States open to potential liability. Some of the ambiguous 
terminology includes, ``other affected parties,'' which is cited in 
Sec. Sec.  630.1002(a), 630.1006, and 630.1008 of the NPRM; the terms 
``assure'' and ``ensure,'' which are cited in Sec. Sec.  630.1004, 
630.1008, and 630.1012(b)(2)(iii)(A); the term ``adequate,'' which is 
cited in Sec. Sec.  630.1002(a), 630.1012(b)(2)(iii)(b); and the term 
``workers,'' which is cited in Sec. Sec.  630.1002(a) and 630.1006. 
Further, several respondents also indicated that it is impossible to 
always consider ``all road users'' in conducting the impacts analysis 
and developing TMPs. Several respondents also commented on the intent 
of the term ``encourage,'' which is used many times in the proposed 
rule.
    The FHWA agrees with the above observations, and we have either 
eliminated or clarified these and other ambiguous terms. The details of 
these revisions are provided in the Discussion of Comments section.
    There is a noticeable negative tone in the proposed regulatory 
language, with respect to the current state of work zone safety and 
mobility in general. Several respondents, especially DOTs, feel that 
the language proposed in the NPRM conveys a ``negative tone'' about the 
current state of work zone safety and mobility and seems to imply that 
DOTs are not taking enough efforts to address these issues. Therefore, 
they recommend that we remove the ``negative tone'' from the document.
    The FHWA would like to clarify our position because we do not mean 
to imply that the efforts of State DOTs are inadequate, but rather, 
that the provisions in the current regulation are inadequate to meet 
current and future work zone safety and mobility issues. We are of the 
opinion that we need to act now and correct the regulations so that we 
can meet our responsibility of providing to the American public a safe 
and efficient transportation system. We have made an attempt to remove 
any phraseology that conveys a ``negative tone'' in this supplemental 
notice.
    For example, in Sec.  630.1004, ``References'' of the NPRM, there 
is language which implies that the Manual On Uniform Traffic Control 
Devices (MUTCD)\1\ does not address all the actions that should be 
taken to mitigate safety and mobility impacts of work zones. This 
provides a connotation that the MUTCD is inadequate or incomplete in 
its standards and guidance. In response, we propose to remove that 
section, and relocate the language and make it more positive sounding. 
Throughout this proposal, we have made several such changes which are 
discussed in detail in the Discussion of Comments on individual 
sections of the NPRM.
---------------------------------------------------------------------------

    \1\ The MUTCD is approved by the FHWA and recognized as the 
national standard for traffic control on all public roads. It is 
incorporated by reference into the Code of Federal Regulations at 23 
CFR part 655. It is available on the FHWA's web site at http://mutcd.fhwa.dot.gov and is available for inspection and copying at 
the FHWA Washington, DC Headquarters and all FHWA Division Offices 
as prescribed at 49 CFR part 7.
---------------------------------------------------------------------------

    The documentation requirements in the proposal would impose 
additional time, resource, and financial burdens on States. Several 
respondents, primarily State DOTs and the AASHTO commented that 
additional documentation requirements for work zone planning, 
assessment and implementation activities would place excessive time, 
resource, and financial burdens on the States, and may divert money and 
effort from the actual implementation of projects.
    For example, the Florida Department of Transportation (FDOT) 
commented that the FHWA should partner with individual States in the 
review of the State's work zone practices and offer suggestions for 
improvements rather than create more plans, documents, and data, which 
may require the creation and maintenance of databases and files.
    The FHWA agrees. Our intent was for States to document their 
decisionmaking steps and rationale during project development, so that 
they may use that information to ensure smooth and effective project 
delivery, and as valuable input for planning,

[[Page 26517]]

designing and implementing future projects of the same kind. Such 
formalized documentation and recordkeeping may actually serve as 
valuable lessons learned that will expedite decisionmaking and delivery 
on future projects. Nevertheless, we understand that such documentation 
may not always be practical for all situations and projects, and 
therefore, we have made changes to the provisions being proposed in 
this supplemental notice eliminating the requirement for formalized 
documentation and recordkeeping. Referring back to the impacts analysis 
example, we have eliminated the mandatory requirement for conducting a 
work zone impacts analysis for all projects, as proposed in the NPRM at 
Sec.  630.1012(b)(1), ``Work Zone Impacts Analysis.''
    Need for additional FHWA clarification, guidance, training, and 
education in the implementation of the proposed rule. Several 
respondents, both from the public and private sectors, commented that 
the FHWA would have to provide additional clarification on the intent 
and application of some of the proposed provisions. Further, they also 
cited that it would benefit practitioners greatly if the FHWA were to 
provide training and educate practitioners on the many new proposed 
concepts and requirements in the new rule.
    Specifically, the AASHTO noted that the lack of clarity in some of 
the provisions increased the potential for inconsistent application of 
the proposed rule by the FHWA Division Offices from State to State.
    Several respondents cited the need for FHWA guidance on project 
classification (small, medium, and large) as applicable to work zone 
impacts--either in separate guidance documents or in the regulation 
itself. Subsequently, respondents indicated that the FHWA should 
develop performance requirements for projects and work zones of 
different types.
    Respondents also indicated that the FHWA should provide additional 
guidance as to what ``work zone impacts analysis'' would entail, and 
that a ``pilot'' program or project should be developed to test these 
rules.
    The contracting community raised several concerns about the 
application of ``performance specifications,'' because the use of 
performance specifications is in a very nascent stage and that 
currently available technical information and guidance on this topic is 
very limited.
    In specific response to the lack of clarity in some of the 
provisions that were proposed in the NPRM, we have clarified the 
language, and have attempted to provide concise explanations for the 
modified language that we are proposing in this notice. Although, we 
are limited by the need for brevity and directness in the rule 
language. We have provided clear explanations on the implications of 
the proposed provisions in the preamble. These explanations may be 
found in the Discussion of comments section which discusses specific 
comments and the FHWA's proposed resolution on the different sections.
    The provisions proposed in the NPRM do not address safety. Several 
respondents, primarily from the private sector, commented that even 
though the purpose of the new rule is to address both safety and 
mobility, the provisions do not seem to emphasize the importance of 
safety. Most private sector respondents including, the AGC, the ARTBA, 
and the ATSSA, and some contractors and consultants noted that safety 
should not be compromised for motorist convenience and mobility. 
Contractors and the private sector also see ``higher speeds'' as a 
natural outcome of improvement in mobility, thereby giving them the 
impression that safety will eventually be compromised. They did not 
provide any specific recommendations for modification, but generally 
feel that there is a strong overtone of mobility in the proposal.
    In response to this concern, we would like to assert that 
maintaining safety is the primary mission of the FHWA, and saving lives 
and reducing crashes are some of our critical objectives. The 
provisions proposed in the NPRM were intended to re-emphasize the 
importance of both traffic and worker safety and, at the same time, 
convey the notion that preservation of mobility, and construction 
efficiency and quality are vital to ensuring that we meet the needs of 
the traveling public during highway construction projects, and provide 
for a safe and efficient transportation system.
    We believe that ``safety'' and ``mobility'' are inextricably 
linked, and that improvement in safety leads to improvement in mobility 
and vice-versa. For example, improvement in safety reduces the 
occurrences of traffic incidents, which reduces the resultant incident 
induced traffic congestion and delays. Similarly, the preservation of 
mobility and smooth traffic flow, reduces speed variations and thereby 
reduces the risk of crashes. It is generally accepted that the 
probability of crashes increases under heavy traffic conditions due to 
decrease in maneuverability and increases in motorist agitation and 
frustration, and therefore improvement in mobility, will also lead to 
preservation of safety.
    Further, we would like to note that improvement in mobility does 
not automatically translate to ``higher operating speeds,'' which may 
lead to crashes. Improvement in mobility simply means the reduction of 
drastic delays, congestion, and dead-stops as a result of work zones. 
What we mean by improvement in work zone mobility, is providing for 
motorists to pass through the work zone at or below the posted speed 
limit for the work zone without experiencing any intolerable work zone 
induced delays or congestion. Nevertheless, in the provisions that we 
are proposing in this supplemental notice, we have made an attempt to 
further emphasize the importance of traffic control, and also recognize 
it as the most important component of the TMP. Further, the 
transportation operations (TO) and public information (PI) components 
that we are proposing as part of the TMP also provide for sustained 
monitoring and management of work zone safety from an operational 
perspective and enhance the overall safety of the work zone.

Discussion of Comments on Specific NPRM Sections and Proposed FHWA 
Resolution

Overview of the Organization of This Section

    This section consists of a detailed discussion on the comments 
received to specific NPRM sections and the proposed FHWA resolution in 
response to these comments. For each section that was proposed in the 
NPRM, the following information is presented:
     Percentage breakdown of the position of the respondents 
with regards to the provisions proposed in that section;
     Major issues cited by the respondents--both public sector 
(primarily DOTs and the AASHTO) and private sector (private 
individuals, consultants, trade associations); and
     Proposed FHWA action in response to the comments and 
explanation of the provisions being proposed in the SNPRM.
    The following paragraphs show percentages of the position of 
respondents, categorized by their respective agency types. For example, 
Supportive--50 percent, Oppose--10 percent, Don't Mandate--20 percent, 
Neutral--10 percent, Unclear--5 percent, and No Response--5 percent. 
The purpose of presenting the NPRM responses along the lines of 
percentages is not to assign statistical significance to the responses, 
but to present a general cross-section of the responses, and to present 
a general idea of the

[[Page 26518]]

respondents' position on different issues.
    The rationale for assigning the different position statements is 
explained as follows:
     Supportive--If it is explicitly stated by the respondent, 
or it is apparent from the respondent's comments or tone.
     Oppose--If the respondent is explicitly opposed to the 
provisions, or it is apparent from the respondent's comments or tone.
     No Mandate--This is when the respondent supports the 
provision, but does not think that it should be mandated, but rather it 
should be provided as guidance.
     Neutral--If the respondents do not explicitly indicate 
whether they are supportive or opposed, but they do have some general 
comments which indicate the respondents' understanding of the proposed 
provisions. As a general rule, respondents whose position is marked as 
neutral may actually be supportive of the provisions, but since their 
position is not very clear from their comments, we assigned their 
position as neutral.
     Unclear--A respondent's position is assigned as unclear 
when his/her comments do not necessarily lend themselves to making a 
conclusive inference about what his/her position is. Sometimes, 
respondents either do not completely understand the provision, or they 
initiate a discussion, or address a subject outside the scope of this 
rulemaking.
     No Response--When the respondent has not provided specific 
comments on that particular section, or when the respondent's general 
feeling about that particular issue cannot be ascertained from his/her 
overall comments, or comments on other issues, we do not assign a 
specific response to that position.
Section 630.1002, Purpose
     In general, the majority of the respondents supported the 
proposed language in this section. About 66 percent of the respondents 
were supportive, 2 percent were neutral, and the remaining 32 percent 
did not provide a specific response to this section.
     Major issues cited by the respondents. Public sector 
agencies indicated the need to clarify the terminology used, such as, 
``assure,'' ``adequate consideration,'' ``all road users,'' 
``workers,'' and ``other affected parties.'' They also suggested that 
we combine paragraphs (a) and (b) and remove the negative tone from the 
language. Private sector respondents also indicated the need to clarify 
and better define the terminology.
     Proposed FHWA action in response to the comments, and 
overview of the provisions being proposed in the SNPRM. We propose to 
clarify the language and remove the above cited subjective terminology 
to remove ambiguity. We propose to combine paragraphs (a) and (b) and 
remove the ``negative tone'' from the language. We also propose to 
combine the MUTCD reference from Sec.  630.1004, ``References'' of the 
NPRM, and remove the ``negative tone'' from the language. We also 
propose to reorganize the content to directly convey the purpose of 
this regulation. We propose to add language that promotes the idea of 
systematic consideration and management of the work zone impacts of 
projects.
Section 630.1004, References
     Percentage breakdown of the position of the respondents 
with regards to the provisions proposed in this section. In general, a 
majority of the respondents supported the proposed language in this 
section. About 55 percent of the respondents were supportive and the 
remaining 45 percent did not provide a specific response to this 
section.
     Major issues cited by the respondents. Most respondents 
commented that they support this section, and the reference to the 
MUTCD. However, they suggested that it be revised to remove the 
``negative tone''.
     Proposed FHWA action in response to the comments, and 
overview of the provisions being proposed in the SNPRM. We propose to 
modify the rule outline for clarity and simplicity. Therefore, we 
propose to delete section Sec.  630.1004 and incorporate the main 
essence of the language in the preceding section, Sec.  630.1002, 
``Purpose.''
Section 630.1006, Definitions and Explanation of Terms
     The majority of the respondents supported the proposed 
language in this section. About 63 percent of the respondents were 
supportive, 2 percent were opposed, 1 percent did not agree with 
mandatory provisions in this regard, 2 percent were neutral, and the 
remaining 32 percent of the respondents did not provide a specific 
response to this section.
     Major issues cited by the respondents. Most respondents 
suggested that we modify existing definitions to clarify terminology 
and to make them more complete. Several State DOTs and the AASHTO 
suggested that we add some new definitions, such as, ``other affected 
parties,'' and ``highway workers.'' Private sector respondents noted 
the need to define ``Work Zone Mobility'' and ``Internal Traffic 
Control Plan.''
     Proposed FHWA action in response to the comments, and 
overview of the provisions being proposed in the SNPRM. We propose to 
remove the definition for Public Information and Outreach Plan (PIOP), 
because we do not require a PIOP in the proposed rule. We propose to 
change the TCP to Temporary Traffic Control (TTC) Plan to be consistent 
with the most recent edition of the MUTCD. We propose to remove the TMP 
definition from this section and include it in the TMP provisions in 
Sec.  630.1012(a), because it is referenced only once in the rule. We 
propose to remove the TOP definition, becuase we do not require a TOP 
in the proposed rule. We propose to retain the definition for ``Work 
Zone,'' and to update it to be consistent with the most recent edition 
of the MUTCD. We propose to retain the definitions for ``Work Zone 
Crash,'' and ``Work Zone Impacts.'' We also propose to add definitions 
for, ``Highway Workers,'' ``Mobility,'' and ``Safety.'' We do not 
propose to include a definition for ``Internal Traffic Control Plan.'' 
Even though internal traffic control plans are important for worker 
safety, we believe that it is not an issue that is under the purview of 
this regulation.
Section 630.1008, Policy
     A majority of the respondents supported the proposed 
language in this section. About 56 percent of the respondents were 
supportive, 2 percent were opposed, 2 percent did not agree with 
mandatory provisions in this regard, 3 percent were neutral, and the 
remaining 37 percent of the respondents did not provide a specific 
response to this section.
     Major issues cited by the respondents. While most 
respondents were either supportive of the section or did not provide 
any specific comments, they did suggest that we clarify the 
terminology, such as, ``other affected parties,'' ``assure,'' and 
``consistent with.'' Private sector respondents suggested the idea of 
making this regulation applicable to the National Highway System (NHS) 
as well as utility and maintenance operations.
     Proposed FHWA action in response to the comments, and 
overview of the provisions being proposed in the SNPRM. Though we did 
not receive substantial negative reaction to this section, in reviewing 
all the comments in response to the NPRM, and modifying the language 
for this SNPRM, we determined that this section is redundant. 
Therefore, we propose to

[[Page 26519]]

eliminate this section to incorporate the concepts of the language 
removed in the proposed Sec.  630.1006, ``Work zone safety and mobility 
policy.''
Section 630.1010, Implementation
     Percentage breakdown of the position of the respondents 
with regards to the provisions proposed in this section. A majority of 
the respondents supported the proposed language in this section. About 
53 percent of the respondents were supportive, 6 percent were opposed, 
2 percent did not agree with mandatory provisions in this regard, 3 
percent were neutral, and the remaining 36 percent of the respondents 
did not provide a specific response to this section.
     Major issues cited by the respondents. The State DOTs and 
the AASHTO remarked that this section should be rewritten to clearly 
indicate that any FHWA review of State activities beyond that required 
to ensure compliance with the rule is nonbinding on the State. They 
also suggested that we clarify vague terms like ``appropriate 
actions,'' and ``results intended.'' Further, they observed that the 
first and second sentences seem to contradict each other, and that 
there are no defined goals for a State's efforts to be measured and 
deemed a success. Private sector respondents commented that we need to 
clarify the use of the term ``assure,'' and that the FHWA review of 
revisions in established policies and procedures should be for more 
than just information purposes.
     Proposed FHWA action in response to the comments, and 
overview of the provisions being proposed in the SNPRM. We propose to 
move the implementation section to the end, and make changes to reflect 
the above comments. The new ``Implementation'' provision is Sec.  
630.1014. We propose to remove vague terms like, ``appropriate 
actions,'' and ``results intended.'' We also propose to remove the term 
``assure'' as it is hard to clarify. Many States commented that there 
are no defined goals for a State's efforts to be measured and deemed a 
success. Therefore, we propose new language to convey a partnership 
approach, rather than a strictly regulatory approach to implementing 
the provisions in the new rule.
Section 630.1012(a), State Transportation Department Policy
     Percentage breakdown of the position of the respondents 
with regards to the provisions proposed in this section. About 24 
percent of the respondents were supportive, 2 percent were opposed, 48 
percent did not agree with mandatory provisions in this regard, and the 
remaining 26 percent of the respondents did not provide a specific 
response to this section.
     Major issues cited by the respondents. The State DOTs and 
the AASHTO feel that this section is redundant with Sec.  630.1008, 
``Policy'', and that it should be deleted. They suggested that we 
clarify the language and remove subjective terms, such as ``severity,'' 
``all road users,'' ``affected parties,'' and ``departments.'' They are 
very supportive of the use of a team approach, but indicated that clear 
definitions are needed, and that more direction is needed on processes, 
reviews and exemptions.
    Private sector respondents were generally supportive of the 
provisions in this section. They indicated that the regulations need to 
make clear that the ``work zone safety and mobility policy'' of State 
DOTs is an internal review process for the State DOT and that it is not 
subject to validation, confirmation or review by any other public or 
private organization. They also remarked that we need to clarify the 
language and provide more guidance to State DOTs in implementing the 
work zone safety and mobility policies.
    With regards to the ``Training'' provisions, the State DOTs and the 
AASHTO noted that we need to remove the mandatory requirement for 
training. They also commented that we need to clarify the terminology 
in this section, such as, ``all persons responsible,'' and ``adequate 
training.'' They also remarked that this section poses many open ended 
questions and opens up liability implications. For example, ``is the 
State responsible for training contractors and consultants''?
    Private sector respondents were generally supportive of the 
``Training'' provisions, but they indicated the need to eliminate 
ambiguity and subjectivity in the terminology in using terms like 
``adequate'' and ``responsible persons.''
    In reference to the process review section, the States were 
generally pleased with the ``encouraging'' tone and the positive nature 
of this section, but they requested that we clarify terms such as, 
``departments.''
    With reference to the ``Performance Data'' section, the States 
expressed concern that crash data cannot be analyzed quickly enough to 
make changes to ongoing projects. Additionally, the States commented 
that the language has a ``negative tone'', and seemed to imply that 
work zones are always designed to have deficiencies. They also remarked 
that collection of mobility performance data may be very expensive, and 
may strain the resources of the States.
    Private sector respondents also noted that mobility data collection 
may be very expensive. They suggested that the FHWA develop guidelines 
and standards for analysis of safety and mobility data, and provide 
common benchmarks for reference and analysis, such as guidance or 
regulations on more uniform data collection and on how the data will be 
collected, recorded, and analyzed in a standard format. They also 
suggested that data on worker fatalities and injuries should be 
collected and analyzed.
     Proposed FHWA action in response to the comments, and 
overview of the provisions being proposed in the SNPRM. We propose to 
make the ``Work zone safety and mobility policy'' provision a separate 
section. We also propose to move the ``Training,'' ``Process review and 
evaluation,'' and ``Work zone performance data'' provisions to a new 
section entitled, ``Agency Level Processes.'' This reorganization 
collects these agency level processes within one section.
    We propose to combine the NPRM provisions under Sec.  
630.1012(a)(2), ``Training,'' Sec.  630.1012(a)(3), ``Performance 
review and evaluation,'' and Sec.  630.1012(a)(4), ``Work zone 
performance data'' into a new section entitled, ``Agency-level 
processes and procedures.'' We propose to modify the language for these 
provisions to correspond to the language proposed in the NPRM. We also 
propose a new provision entitled, ``Impact assessment and management 
procedures'' under the ``Agency-level processes and procedures'' 
section.
    We believe that we have responded to the State DOTs' concern that 
crash data cannot be analyzed quickly enough to make changes to ongoing 
projects, by proposing to remove the related language, and by changing 
the terminology to require management of the safety and mobility 
impacts of projects during implementation by using crash data. We 
propose to remove the negative tone and the implication that work zones 
are always designed to have deficiencies. We propose to partially adopt 
the AASHTO's proposed language, to make the wording less negative. We 
propose to add more detail about data resources/data elements and to 
explain the benefits of data.
    We propose to retain the ``shall'' clause in this section as we 
believe that it is an essential requirement to help manage safety 
during project implementation. This is further reinforced by the 
National Transportation Safety Board (NTSB)

[[Page 26520]]

recommendation to the FHWA in ``School Bus Run-off-Bridge Accident, 
Omaha, Nebraska, October 13, 2001,'' Highway Accident Report, NTSB/HAR-
04/01, PB2004-916201, Notation 7610, Adopted February 10, 2004.\2\ The 
NTSB made the following recommendation to the FHWA in this regard:
---------------------------------------------------------------------------

    \2\ National Transportation Safety Board (NTSB) Accident Report, 
``School Bus Run-off-Bridge Accident, Omaha, Nebraska, October 13, 
2001,'' Highway Accident Report, NTSB/HAR-04/01, PB2004-916201, 
Notation 7610, Adopted February 10, 2004. This report may be 
obtained by writing the NTSB at National Transportation Safety 
Board, 490 L'Enfant Plaza, SW., Washington, D.C. 20594. An 
electronic copy may be downloaded at the following URL: http://www.ntsb.gov/publictn/2004/HAR0401.pdf.

    ``Incorporate into the Manual for Uniform Traffic Control 
Devices the stricter criteria on work zone safety and management 
contained in the Federal-Aid Policy Guide, 23 Code of Federal 
Regulations 630 J, Subchapter G-Engineering and Traffic Operations, 
Part 630-Preconstruction Procedures, Subpart J-Traffic Safety in 
Highway and Street Work Zones, to include continuously monitoring 
traffic accident experience in work zones to detect and correct 
safety deficiencies existing in individual projects. Further, the 
traffic accident reports necessary to accomplish this should be 
obtained monthly, directly from local traffic law enforcement 
---------------------------------------------------------------------------
agencies. (H-04-01)

    In the ``Training'' provisions, we propose to remove the term ``all 
persons responsible,'' and replace it with ``personnel'' to remove 
subjectivity from the language. We propose to add personnel responsible 
for enforcement, in addition to personnel responsible for development, 
design, implementation, operation, and inspection of work zone related 
transportation management and traffic control. We also propose to 
remove the ambiguous phrase, ``adequate training.'' To the second 
sentence of the training provision, we propose to add language to 
convey that training updates should reflect changing agency processes 
and procedures, in addition to changing industry trends.
    The AASHTO and most DOTs were generally pleased with the 
``encouraging'' tone and the positive nature of the ``Performance 
review and evaluation section.'' However, the FHWA is charged with the 
responsibility of making sure that Federal Aid Highway funded projects 
meet the requirements set forth in Title 23, United States Code, 
``Highways'' and accomplish this, in part, through information gathered 
by the States' periodic process review. Therefore, we propose to change 
it to a mandatory requirement rather than an encouraging statement. The 
need to make this requirement mandatory is further emphasized by the 
recommendations made by the NTSB in its report entitled, ``School Bus 
Run-off-Bridge Accident, Omaha, Nebraska, October 13, 2001.'' The NTSB 
made the following recommendation to the FHWA in this regard:

    ``Require divisional offices to participate in the States'' work 
zone safety inspections and diligently monitor and evaluate the 
results of those inspections in conformance with the Federal-Aid 
Policy Guide, 23 Code of Federal Regulations 630 J, Subchapter G--
Engineering and Traffic Operations, Part 630--Preconstruction 
Procedures, Subpart J--Traffic Safety in Highway and Street Work 
Zones. (H-04-02)''

    However, flexibility is still offered to the States in the conduct 
of these reviews. We propose to change the term ``departments'' to 
``offices.'' We also propose to provide examples for personnel from the 
different offices within the State DOT. Finally, we propose to add text 
to indicate what will be done with the results of the review and 
evaluation.
Section 630.1012(b), Project Impact Analysis and Management Procedures
     Percentage breakdown of the position of the respondents 
with regards to the provisions proposed in this section. About 18 
percent of the respondents were supportive, 1 percent were opposed, 47 
percent did not agree with mandatory provisions in this regard, and the 
remaining 34 percent of the respondents did not provide a specific 
response to this section.
     Major issues cited by the respondents. The following are 
the major comments made by the State DOTs and the AASHTO in response to 
this section:
    (1) This section should be guidance and not a mandatory 
requirement.
    (2) The FHWA needs to clarify or delete subjective terms like, 
``severity.''
    (3) If a requirement is imposed, there should be flexibility for 
States to exempt projects or classes of projects from the impacts 
analysis requirement or parts of it.
    (4) The individual activities listed under the impacts analysis 
should not be mandated. Revise the provisions to indicate that they are 
not always required, but may be appropriate on certain types of 
projects that meet certain conditions.
    (5) In general, most of the State DOTs and the AASHTO agree with 
the concept of a TMP.
    (6) The FHWA needs to rewrite and clarify some of the terms to 
remove subjectivity and ambiguity.
    (7) The three separate plans proposed under the TMP, namely the 
TCP, TOP and PIOP should not be required, because this increases the 
documentation requirements. Instead of a TMP with three constituent 
plans, it would be more efficient to have one integrated TMP which may 
consist of any or all of traffic control, transportation operations and 
public information components.
    (8) The FHWA needs to make the regulatory language more like 
guidance than an absolute requirement, especially with respect to the 
constituent elements of the TMP.
    (9) The FHWA needs to remove language that seems to indicate that 
all the components in the TMP are mandatory, for example, change the 
phrases, ``transportation operations requirements,'' and ``public 
information and outreach requirements'' to ``transportation operations 
strategies,'' and ``public information and outreach strategies.''
    (10) The State DOTs and the AASHTO strongly opposed the mandatory 
unit pay items for individual TCP components, as they believe that 
State DOTs would lose their flexibility in contracting. These 
commenters remarked that this section is overly restricting and it 
takes away from the flexibility in current contracting options 
available to States. These commenters acknowledged that there needs to 
be a distinct pay item requirement for the TCP in the Plans, 
Specifications and Estimates (PS&Es), but there need not always be unit 
pay items for all the components of the TCP.
    The following are the major comments made by private sector 
respondents:
    (1) The FHWA needs to clarify the terminology and revise the 
language to improve overall readability.
    (2) Private companies involved in short duration work zones were 
very concerned about the need to perform a detailed impacts analysis 
for small utility/maintenance type projects.
    (3) The way the provisions are written, it exposes the States/
contractors to legal liability and lawsuits; especially because the 
impacts analysis is written as a mandatory clause that should account 
for impacts on all affected parties.
    (4) The regulation should make it very clear that the impacts 
analysis is an internal review process and that it is not subject to 
review by any private/public entity.
    (5) Contractors are skeptical of ``contractor developed TMPs'' and 
of ``performance based specifications'' because it could increase their 
liability exposure.
    (6) The FHWA needs to indicate that all portions of the TMP should 
be

[[Page 26521]]

developed in consultation with contractors and other required entities.
    (7) The FHWA needs to try and exempt short duration and emergency 
work from a PIOP.
    (8) The FHWA needs to remove the need for three separate plans and 
combine them into one integrated TMP with traffic control, 
transportation operations and public information components. The FHWA 
should add a note ``for designated projects'' in the regulatory 
language, to clearly indicate that all three components of the TMP are 
expected to apply to major projects.
    (9) In stark contrast to the sentiments of the public sector, 
private sector respondents strongly supported unit pay item 
requirements for individual TCP components because contractors believe 
that this would ensure a fair playing field, thereby leveling the 
competition between multiple bidders. They suggested that the FHWA 
develop model contract specifications, special orders, and unit pricing 
for safety items that apply to federally supported roadway construction 
contracts, which they believe will level the playing field for 
contractors who place a high emphasis on safety. They further suggested 
that we need to include ``worker safety and health'' requirements in 
bid specifications. Some private sector respondents, primarily road 
building industry trade associations and contractors, recommend either 
regulatory language or guidance on the use of positive separation.
     Proposed FHWA action in response to the comments, and 
overview of the provisions being proposed in the SNPRM. The following 
are the major proposed changes in this notice:
    (1) We propose to include a new section, entitled ``Significant 
projects,'' which introduces the concept of projects with significant 
work zone impacts, and consists of requirements for States to develop 
and update a list of its significant projects. We propose language to 
define a significant project as one that, ``alone or in combination 
with other concurrent projects nearby is anticipated to cause sustained 
work zone impacts (as defined in Sec.  630.1004 of the proposal) that 
are greater than what is considered tolerable based on agency policy 
and/or engineering judgment.'' Identification of significant projects 
will help stratify the application of TMPs with the TO and PI 
components only to such significant projects. Such classification of 
certain projects as significant will also help the State allocate 
resources more effectively to projects, and apply a systematic approach 
for identifying, characterizing, and managing work zone impacts.
    In the same section on ``Significant projects,'' we also propose to 
add language that would require States to designate all Interstate 
system projects that occupy a location for more than three days with 
either intermittent or continuous lane closures, as significant. We 
propose to allow exceptions to this requirement, if in the judgment of 
the State, a specific Interstate system project does not cause 
sustained work zone impacts. Exceptions may be granted by the FHWA 
based on the agency's ability to show that the specific Interstate 
system project does not have sustained work zone impacts.
    (2) We propose to retain the concept of the ``Project impact 
analysis and management procedures'' section, but changed its title to 
``Project-level procedures,'' and made it more concise and 
straightforward. We propose to remove the requirement for conducting a 
work zone impacts analysis. We propose to retain the requirement to 
develop TMPs for projects, but clearly indicate that the transportation 
operations (TO) public information (PI) components of the TMP shall be 
required only for significant projects (as defined in the ``Significant 
Projects'' section). We would like to note that the impacts analysis 
concepts are indirectly embedded into the TMP, wherein, the scope, 
content, and degree of detail for TMPs may vary based on the State's 
policy and its understanding of the expected work zone impacts of the 
project.
    (3) The proposed language for the ``Project-level procedures'' 
section is more concise. We propose to change the term ``TCP'' to ``TTC 
plan'' to be consistent with the most recent edition of the MUTCD.
    (4) As in the NPRM, we propose that the TTC plan be mandatory for 
all projects, and require that the TTC plan be consistent with Part 6 
of the MUTCD. We propose to add language to require TTC plans to be 
consistent with the work zone hardware recommendations in Chapter 9 of 
the AASHTO Roadside Design Guide.\3\
---------------------------------------------------------------------------

    \3\ ``Roadside Design Guide,'' 3d Ed., 2002, is available for 
purchase from the American Association of State Highway and 
Transportation Officials, 444 North Capitol Street, NW., Washington, 
DC 20001 or at the URL: http://www.aashto.org/bookstore. It is 
available for inspection from the FHWA Washington Headquarters and 
all Division Offices as listed in 49 CFR part 7.
---------------------------------------------------------------------------

    We also propose to add language to convey that, while developing 
and implementing TTC plans, States shall maintain pre-existing roadside 
safety features at an equivalent or better level than existed prior to 
project implementation. These additions are a result of the NTSB's 
recommendations to the FHWA in its report entitled, ``School Bus Run-
off-Bridge Accident, Omaha, Nebraska, October 13, 2001.'' The NTSB made 
the following recommendation to the FHWA in this regard:

    Include in the Manual for Uniform Traffic Control Devices a 
requirement that, for roadways under construction, traffic safety 
features (such as barrier systems) be maintained at an equivalent or 
better level than existed prior to construction. (H-04-03)

    (5) We propose to change the terms ``TOP'' and ``PIOP'' to 
``Transportation Operations (TO)'' and ``Public Information (PI)'' 
components, respectively. This is to remove the notion of three 
separate plans being required for all projects. As mentioned 
previously, we propose to require the TO and the PI components only for 
significant projects (as defined in the ``Significant Projects'' 
section).
    (6) In response to the State DOTs' and the AASHTO's concerns 
regarding ``Pay Items,'' we proposed to remove the mandatory 
requirement for unit-pay items for the TCP for method-based 
specifications. The proposed language revisions now require ``a pay-
item'' in the Plans Specifications and Estimates (PS&Es) for 
implementing the TMP, and allows flexibility for States to choose 
either method-based or performance-based specifications.
    In the case of method-based specifications, the proposed language 
allows flexibility to States in choosing individual pay items, lump sum 
payment, or a combination of both. For performance-based 
specifications, we propose to provide examples of safety performance 
criteria (such as number of crashes within the work zone); and mobility 
performance criteria (such as travel time through the work zone, delay, 
queue length, traffic volume; incident response and clearance criteria; 
and work duration criteria.)
    The revisions that we are proposing in this supplemental notice do 
not necessarily address the private sector's comments on the 
requirement for unit-pay items for implementing the TTC plan. However, 
the requirement for ``a pay item'' for implementing the entire TMP, 
along with the other proposed revisions, would cover the issue of 
providing for a safe work zone and ensure that all contractors are 
provided an equal opportunity to bid on all projects without 
compromising on safety aspects of the project. We believe State DOTs 
know when to use unit pay

[[Page 26522]]

items and when to use lump sum pay items; flexibility in the choice of 
pay items will help States select the most appropriate pay items to 
suit individual projects; and that the requirement of unit pay items 
for all projects and road work scenarios may not always be practicable 
in the real-world.
Section 630.1014, Compliance Date
     Percentage breakdown of the position of the respondents 
with regards to the provisions proposed in this section. About 3 
percent of the respondents were supportive, 45 percent were opposed, 2 
percent were neutral, and the remaining 50 percent of the respondents 
did not provide a specific response to this section.
     Major issues cited by the respondents. Private sector 
respondents did not have any specific comments to this section. The 
following are the major issues cited by the State DOTs and the AASHTO:
    (1) The FHWA needs to clearly explain how the rule will apply to 
ongoing projects, and to projects that are in the later stages of 
project development.
    (2) The FHWA should indicate clearly that the rule will apply only 
to projects that have not been initiated yet, and those that still have 
not passed through the entire project development process.
    (3) A blanket time requirement is very confusing.
    (4) The FHWA should provide flexibility to States to request 
waivers/exemptions on a case-by-case basis for those projects that are 
in the later stages of project development and would be significantly 
impacted by this rule's implementation.
    (5) The FHWA needs to provide implementation guidance on model 
documentation for implementation of the new rule.
    (6) The FHWA should consider ``phased'' implementation rather than 
absolute compliance.
    (7) The FHWA should clarify the terminology used and provide more 
guidance on applicability.
     Proposed FHWA action in response to the comments, and 
overview of the provisions being proposed in the SNPRM. We propose to 
retain the three-year compliance date, but allow variances on a case-
by-case basis for projects in later stages of project development, if 
it is determined that the delivery of those projects would be 
significantly impacted as a result of this rule's provisions.
    Further, in the interim period between publication of this rule and 
the compliance date, to provide for TMPs with both TO and PI components 
for ongoing significant projects, State DOTs are encouraged, but not 
required, to apply the requirements in Sec. Sec.  630.1012(b)(2) and 
(b)(3) to those projects that are in progress, and are determined by 
the State to have significant work zone impacts.

Rulemaking Analyses and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket at the above address. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable, but the FHWA may issue a final 
rule at any time after the close of the comment period. In addition to 
late comments, the FHWA will also continue to file relevant information 
in the docket as it becomes available after the comment period closing 
date, and interested persons should continue to examine the docket for 
new material.
    The FHWA has limited the comment period for this proposal to 30-
days in order to issue a final regulation on the earliest possible 
date. We believe that this comment period provides interested persons 
with an adequate opportunity for review and comment.
    We have systematically and progressively given opportunity for 
interested parties to review and comment on this docket since early 
2002. We first opened a docket on the issue of work zone safety and 
mobility by issuing the ANPRM on February 6, 2002, which was followed 
by the NPRM on May 7, 2003. Both the ANPRM and the NPRM had a comment 
period of 120 days each. The total duration that this docket has been 
open indicates that there has been ample opportunity for interested 
parties to conduct their analyses and submit their comments and views. 
Therefore, we believe that interested parties should be familiar enough 
with the topic, the issues addressed, and the provisions proposed in 
this notice, for them to be able to review and comment within the 30-
day time-frame. With the growing concern of high levels of congestion 
on many highways and an increase in the number of work zone fatalities 
each of the past five years (for an overall increase of 70 percent 
between 1997 and 2002), further delaying the issuance of this final 
rule will compound these current problems associated with work zones. 
Accordingly, we have determined that a 30-day comment period best 
serves the safety and mobility interests of the American public.

Executive Order 12866 (Regulatory Planning and Review) and U.S. DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this proposed rule would not be a 
significant regulatory action within the meaning of Executive Order 
12866 and would not be significant within the meaning of the U.S. 
Department of Transportation regulatory policies and procedures. It is 
anticipated that the economic impact of this action would be minimal.
    These proposed changes are not anticipated to adversely affect, in 
a material way, any sector of the economy. In addition, these proposed 
changes would not create a serious inconsistency with any other 
agency's action or materially alter the budgetary impact of any 
entitlements, grants, user fees, or loan programs; nor will the 
proposed amendments of this regulation raise any novel legal or policy 
issues. Therefore, a full regulatory evaluation is not required.
    Based upon the information received in response to this SNPRM, the 
FHWA intends to carefully consider the costs and benefits associated 
with this rulemaking. Accordingly, comments, information, and data are 
solicited on the economic impact of the changes described in this 
document or any alternative proposal submitted.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (RFA) (Pub. L. 
96-354, 5 U.S.C. 60l-612), the FHWA has evaluated the effects of this 
SNPRM on small entities and has determined that it would not have a 
significant economic impact on a substantial number of small entities.
    This rule applies to State departments of transportation in the 
execution of their highway program, specifically with respect to work 
zone safety and mobility. The implementation of the proposed provisions 
in this rule would therefore not affect the economic viability or 
sustenance of small entities, as States are not included in the 
definition of small entity set forth in 5 U.S.C. 601. Therefore, the 
RFA does not apply and the FHWA certifies that the proposed action will 
not have a significant economic impact on a substantial number of small 
entities.

Unfunded Mandates Reform Act of 1995

    This SNPRM would not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 
109 Stat. 48). The actions proposed in this SNPRM would not result in 
the

[[Page 26523]]

expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any one year (2 
U.S.C. 1532). Further, in compliance with the Unfunded Mandates Reform 
Act of 1995, the FHWA will evaluate any regulatory action that might be 
proposed in subsequent stages of the proceeding to assess the affects 
on State, local, and tribal governments and the private sector.

Executive Order 13132 (Federalism)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, dated 
August 4, 1999, and it has been determined that this proposed action 
does not have a substantial direct effect or sufficient federalism 
implications on States that would limit the policymaking discretion of 
the States. Nothing in this document directly preempts any State law or 
regulation or affects the States' ability to discharge traditional 
State governmental functions.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program.

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations.
    The FHWA has determined that this proposed rule contains a 
requirement for data and information to be collected and maintained in 
the support of design, construction, and operational decisions that 
affect the safety and mobility of the traveling public related to 
highway and roadway work zones. In order to streamline the process, the 
FHWA intends to request that the OMB approve a single information 
collection clearance for all of the data in the proposed regulation.
    The FHWA estimates that a total of 83,200 burden hours per year 
would be imposed on non-Federal entities to provide the required 
information for the proposed regulation requirements. Respondents to 
this information collection include State Transportation Departments 
from all 50 States, Puerto Rico, and the District of Columbia. The 
estimates here only include burdens on the respondents to provide 
information that is not usually and customarily collected.
    The FHWA is required to submit this proposed collection of 
information to the OMB for review and approval, and accordingly, seeks 
public comments. Interested parties are invited to send comments 
regarding any aspect of these information collection requirements, 
including, but not limited to: (1) Whether the collection of 
information is necessary for the performance of the functions of the 
FHWA, including whether the information has practical utility; (2) the 
accuracy of the estimated burden; (3) ways to enhance the quality, 
utility, and clarity of the collected information; and (4) ways to 
minimize the collection burden without reducing the quality of the 
information collected.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this proposed action under Executive Order 
13175, dated November 6, 2000, and believes that this proposed action 
will not have substantial direct effects on one or more Indian tribes; 
will not impose substantial direct compliance costs on Indian tribal 
governments; and will not preempt tribal law. This rulemaking primarily 
applies to urbanized metropolitan areas and National Highway System 
(NHS) roadways that are under the jurisdiction of State transportation 
departments. The purpose of this proposed action is to mitigate the 
safety and mobility impacts of highway construction and maintenance 
projects on the transportation system, and would not impose any direct 
compliance requirements on Indian tribal governments and will not have 
any economic or other impacts on the viability of Indian tribes. 
Therefore, a tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

    The FHWA has analyzed this proposed action under Executive Order 
13211, Actions Concerning Regulations that Significantly Affect Energy 
Supply, Distribution or Use. We have determined that this proposed 
action would not be a significant energy action under that order 
because any action contemplated would not be a significant regulatory 
action under Executive Order 12866 and would not be likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Further, we believe that the implementation of the proposed 
provisions by State departments of transportation would reduce the 
amount of congested travel on our highways, thereby reducing the fuel 
consumption associated with congested travel. Therefore, the FHWA 
certifies that a Statement of Energy Effects under Executive Order 
13211 is not required.

National Environmental Policy Act

    The FHWA has analyzed this proposed action for the purposes of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347 et seq.) 
and has determined that this proposed action will not have any effect 
on the quality of the environment. Further, we believe that the 
implementation of the proposed provisions by State departments of 
transportation would reduce the amount of congested travel on our 
highways. This reduction in congested travel would reduce automobile 
emissions thereby contributing to a cleaner environment.

Executive Order 12630 (Taking of Private Property)

    The FHWA has analyzed this proposed rule under Executive Order 
12630, Governmental Actions and Interference with Constitutionally 
Protected Property Rights. The FHWA does not anticipate that this 
proposed action would affect a taking of private property or otherwise 
have taking implications under Executive Order 12630.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    The FHWA has analyzed this proposed action under Executive Order 
13045, Protection of Children from Environmental Health Risks and 
Safety Risks. The FHWA certifies that this proposed action will not 
cause an environmental risk to health or safety that may 
disproportionately affect children.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be

[[Page 26524]]

used to cross reference this action with the Unified Agenda.

List of Subjects in 23 CFR Part 630

    Government contracts, Grant programs--transportation, Highway 
safety, Highways and roads, Project agreement, Traffic regulations.

    Issued on: May 10, 2004.
Mary E. Peters,
Federal Highway Administrator.
    In consideration of the foregoing, the FHWA proposes to revise 
title 23, Code of Federal Regulations, Part 630, subpart J as follows:

PART 630--PRECONSTRUCTION PROCEDURES [REVISED]

    1. The authority citation continues to read as follows:

    Authority: 23 U.S.C. 106, 109, 115, 315, 320, and 402(a); 23 CFR 
1.32; and 49 CFR 1.48(b).

    2. Revise subpart J of part 630 to read as follows:

Subpart J--Work Zone Safety and Mobility

Sec.
630.1002 Purpose.
630.1004 Definitions and explanation of terms.
630.1006 Work zone safety and mobility policy.
630.1008 Agency-level processes and procedures.
630.1010 Significant projects.
630.1012 Project-level procedures.
630.1014 Implementation.
630.1016 Compliance date.


Sec.  630.1002  Purpose.

    Work zones directly impact the safety and mobility of road users 
and highway workers. These safety and mobility impacts are exacerbated 
by an aging highway infrastructure and growing congestion in many 
locations. Addressing these safety and mobility issues requires 
considerations that start early in project development and continue 
through project completion. Part 6 of the Manual On Uniform Traffic 
Control Devices (MUTCD) \1\ sets forth basic principles and prescribes 
standards for the design, application, installation, and maintenance of 
traffic control devices for highway and street construction, 
maintenance operation, and utility work. In addition to the provisions 
in the MUTCD, there are other actions that could be taken to further 
help mitigate the safety and mobility impacts of work zones. This 
subpart establishes requirements and provides guidance for 
systematically addressing the safety and mobility impacts of work 
zones, and developing strategies to help manage these impacts on all 
Federal-aid highway projects.
---------------------------------------------------------------------------

    \1\ The MUTCD is approved by the FHWA and recognized as the 
national standard for traffic control on all public roads. It is 
incorporated by reference into the Code of Federal Regulations at 23 
CFR part 655. It is available on the FHWA's web site at http://mutcd.fhwa.dot.gov and is available for inspection and copying at 
the FHWA Washington, DC Headquarters and all FHWA Division Offices 
as prescribed at 49 CFR part 7.
---------------------------------------------------------------------------


Sec.  630.1004  Definitions and explanation of terms.

    As used in this subpart:
    Highway workers include, but are not limited to, personnel of the 
contractor, subcontractor, DOT, utilities, and law enforcement, 
performing work within the right-of-way of a transportation facility.
    Mobility is the ability to move from place to place and is 
significantly dependent on the availability of transportation 
facilities and on system operating conditions. With specific reference 
to work zones, mobility pertains to moving road users smoothly through 
or around a work zone area with a minimum delay compared to baseline 
travel when no work zone is present. The commonly used performance 
measures for the assessment of mobility include delay, speed, travel 
time and queue lengths.
    Safety is a representation of the level of exposure to danger for 
users of transportation facilities and highway workers. With specific 
reference to work zones, safety refers to minimizing the exposure to 
danger of road users in the vicinity of a work zone and road workers at 
the work zone interface with traffic. The commonly used measures for 
highway safety are the number of crashes or the consequences of crashes 
(fatalities and injuries) at a given location or along a section of 
highway during a period of time. Worker safety in work zones refers to 
the safety of workers at the work zone interface with traffic and the 
impacts of the work zone design on worker safety. The number of worker 
fatalities and injuries at a given location or along a section of 
highway, during a period of time is a commonly used measure.
    Temporary Traffic Control (TTC) Plan \2\ describes TTC measures to 
be used for facilitating road users through a work zone or an incident 
area. TTC plans play a vital role in providing continuity of reasonably 
safe and efficient road user flow and highway worker safety when a work 
zone, incident, or other event temporarily disrupts normal road user 
flow.
---------------------------------------------------------------------------

    \2\ MUTCD, Part 6, ``Temporary Traffic Control,'' Section 6C.01, 
``Temporary Traffic Control Plans.''
---------------------------------------------------------------------------

    Work zone \3\ is an area of a highway with construction, 
maintenance, or utility work activities. A work zone is typically 
marked by signs, channelizing devices, barriers, pavement markings, 
and/or work vehicles. It extends from the first warning sign or high-
intensity rotating, flashing, oscillating, or strobe lights on a 
vehicle to the END ROAD WORK sign or the last TTC device.
---------------------------------------------------------------------------

    \3\ MUTCD, Part 6, ``Temporary Traffic Control,'' Section 6C.02, 
``Temporary Traffic Control Zones.''
---------------------------------------------------------------------------

    Work zone crash \4\ means a traffic crash in which the first 
harmful event occurs within the boundaries of a work zone or on an 
approach to or exit from a work zone, resulting from an activity, 
behavior, or control related to the movement of the traffic units 
through the work zone. Includes crashes occurring on approach to, 
exiting from or adjacent to work zones that are related to the work 
zone.
---------------------------------------------------------------------------

    \4\ ``Model Minimum Uniform Crash Criteria Guideline'' (MMUCC), 
2d Ed. (Electronic), 2003, produced by National Center for 
Statistics and Analysis, National Highway Traffic Safety 
Administration (NHTSA). Telephone 1-(800)-934-8517. Available at the 
URL: http://www-nrd.nhtsa.dot.gov. The NHTSA, the FHWA, the Federal 
Motor Carrier Safety Administration (FMCSA), and the Governors 
Highway Safety Association (GHSA) sponsored the development of the 
MMUCC Guideline which recommends voluntary implementation of the 111 
MMUCC data elements and serves as a reporting threshold that 
includes all persons (injured and uninjured) in crashes statewide 
involving death, personal injury, or property damage of $1,000 or 
more. The Guideline is a tool to strengthen existing State crash 
data systems.
---------------------------------------------------------------------------

    Work zone impacts refer to work zone-induced deviations from the 
normal range of transportation system safety and mobility. The extent 
of the work zone impacts may vary based on factors such as, road 
classification, area type (urban, suburban, and rural), traffic and 
travel characteristics, type of work being performed, time of day/
night, and complexity of the project. These impacts may extend beyond 
the physical location of the work zone itself, and may occur on the 
roadway on which the work is being performed, as well as other highway 
corridors, other modes of transportation, and/or the regional 
transportation network.


Sec.  630.1006  Work zone safety and mobility policy.

    Each State shall implement a policy for the systematic 
consideration and management of work zone impacts on all Federal-aid 
highway projects. This policy shall address work zone impacts 
throughout the various stages of the project development and 
implementation process. This policy may take the form of processes,

[[Page 26525]]

procedures, and/or guidance, and may vary based on the characteristics 
and expected work zone impacts of individual projects or classes of 
projects. The States should institute this policy using a multi-
disciplinary team representing the different project development 
stages, and in partnership with the FHWA. The States are encouraged to 
implement this policy for non-Federal-aid projects as well.


Sec.  630.1008  Agency-level processes and procedures.

    (a) This section consists of agency-level processes and procedures 
for States to implement and sustain their respective work zone safety 
and mobility policies. Agency-level processes and procedures, well 
defined data resources, training, and periodic evaluation enable a 
systematic approach for addressing and managing the safety and mobility 
impacts of work zones.
    (b) Work zone assessment and management procedures. States should 
develop and implement systematic procedures to assess work zone impacts 
in project development, and to manage safety and mobility during 
project implementation. The scope of these procedures shall be based on 
the project characteristics.
    (c) Work zone data. States shall use work zone crash and 
operational data to continually improve work zone safety and mobility. 
This data shall be used to manage work zone impacts during project 
development and implementation, and to improve agency procedures for 
on-going and future work zones. States are encouraged to establish data 
resources at both the agency and project levels to support these 
activities.
    (d) Training. Personnel involved in the development, design, 
implementation, operation, inspection, and enforcement of work zone 
related transportation management and traffic control shall be trained. 
States are encouraged to keep records of the training successfully 
completed by these personnel, and provide periodic training updates 
that reflect changing industry practices and agency processes and 
procedures.
    (e) Process review. In order to assess the effectiveness of work 
zone safety and mobility procedures, the States shall perform a process 
review at least every two years. This review may include the evaluation 
of work zone data at the agency level, and/or review of randomly 
selected projects throughout their jurisdictions. Appropriate personnel 
who represent the project development stages and the different offices 
within the State are encouraged to participate in this review. This 
should include representation from planning, right-of-way, design, 
traffic, construction, and maintenance offices within the State. States 
should include an FHWA representative as a member of the review team, 
and are encouraged to address the reviews in the stewardship agreements 
\5\ between each State and the FHWA. Other non-agency stakeholders may 
also be included in this review, as appropriate. The results of the 
review are intended to lead to improvements in work zone processes and 
procedures, data resources, and training programs so as to enhance 
efforts to address safety and mobility on current and future projects.
---------------------------------------------------------------------------

    \5\ As defined in Section 1016 of the Intermodal Surface 
Transportation Efficiency Act of 1991 (ISTEA) (Public Law 102-240; 
105 Stat. 1914; Dec. 18, 1991).
---------------------------------------------------------------------------


Sec.  630.1010  Significant projects.

    A significant project is one that, alone or in combination with 
other concurrent projects nearby is anticipated to cause sustained work 
zone impacts (as defined in Sec.  630.1004) that are greater than what 
is considered tolerable based on agency policy and/or engineering 
judgment. In addition, all Interstate system projects that occupy a 
location for more than three days with either intermittent or 
continuous lane closures shall be considered as significant projects. 
The applicability of the provisions in Sec. Sec.  630.1012(b)(2) and 
630.1012(b)(3) is dependent upon whether a project is determined to be 
significant. The State shall identify upcoming projects that are 
expected to be significant. This identification of significant projects 
should be done as early as possible in the project delivery and 
development process, and in cooperation with the FHWA. The State's work 
zone policy provisions, the project's characteristics, and the 
magnitude and extent of the anticipated work zone impacts should be 
considered when determining if a project is significant or not. For an 
Interstate system project that is classified as significant through the 
application of this subpart, but in the judgment of the agency it does 
not cause sustained work zone impacts, the agency may request an 
exception to Sec. Sec.  630.1012(b)(2) and 630.1012(b)(3) from the 
FHWA. Exceptions to these provisions may be granted by the FHWA based 
on the agency's ability to show that the specific Interstate system 
project does not have sustained work zone impacts.


Sec.  630.1012  Project-level procedures.

    (a) This section provides guidance and establishes procedures for 
States to manage the work zone impacts of individual projects.
    (b) Transportation Management Plan (TMP). A TMP consists of 
strategies to manage the work zone impacts of a project. Its scope, 
content, and degree of detail may vary based upon the State's work zone 
policy, and the State's understanding of the expected work zone impacts 
of the project. For significant projects (as defined in Sec.  
630.1010), the State shall develop a TMP that consists of a Temporary 
Traffic Control (TTC) plan and addresses both Transportation Operations 
(TO) and Public Information (PI) components. For individual projects or 
classes of projects that the State determines to have less than 
significant work zone impacts, the TMP may consist only of a TTC plan. 
States are encouraged to consider TO and PI issues for all projects.
    (1) A TTC plan helps safely and efficiently handle traffic through 
a specific highway or street work zone or project. The TTC plan shall 
be consistent with the provisions under Part 6 of the MUTCD and with 
the work zone hardware recommendations in Chapter 9 of the American 
Association of State Highway and Transportation Officials (AASHTO) 
Roadside Design Guide.\6\ In developing and implementing the TTC plan, 
pre-existing roadside safety features shall be maintained at an 
equivalent or better level than existed prior to project 
implementation. The scope of the TTC plan is determined by the project 
characteristics, and the traffic safety and control requirements 
identified by the State for that project. The TTC plan shall either be 
a reference to specific TTC elements in the MUTCD, approved standard 
TTC plans, State transportation department TTC manual, or be designed 
specifically for the project.
---------------------------------------------------------------------------

    \6\ ``Roadside Design Guide,'' 3d Ed., 2002, is available for 
purchase from the American Association of State Highway and 
Transportation Officials, 444 North Capitol Street, NW., Washington, 
DC 20001 or at the URL: http://www.aashto.org/bookstore. It is 
available for inspection from the FHWA Washington Headquarters and 
all Division Offices as listed in 49 CFR part 7.
---------------------------------------------------------------------------

    (2) The TO component of the TMP shall include the identification of 
strategies that will be used to mitigate impacts of the work zone on 
the operation and management of the transportation system within the 
work zone impact area. Typical TO strategies may include, but are not 
limited to, demand management, corridor/network management, safety 
management and enforcement, and work zone traffic management and 
traveler information.

[[Page 26526]]

The scope of the TO component should be determined by the project 
characteristics, and the transportation operations and safety 
requirements identified by the State.
    (3) The PI component of the TMP shall include communications 
strategies that seek to inform affected road users, the general public, 
area residences and businesses, and appropriate public entities about 
the project, the expected work zone impacts, and the changing 
conditions on the project. The scope of the PI component should be 
determined by the project characteristics and the public information 
and outreach requirements identified by the State. Public information 
should be provided through methods best suited for the project, and may 
include but not be limited to, information on the project 
characteristics, expected impacts, closure details, and commuter 
alternatives.
    (4) States should develop and implement the TMP in sustained 
coordination and partnership with stakeholders (i.e., other 
transportation agencies, railroad agencies/operators, transit 
providers, freight movers, utility suppliers, police, fire, emergency 
medical services, schools, business communities, and regional 
transportation management centers).
    (c) The Plans, Specifications, and Estimates (PS&Es) shall include 
either a TMP or provisions for contractors to develop a TMP at the most 
appropriate project phase as applicable to the State's chosen 
contracting methodology for the project. Contractor developed TMPs 
shall be approved by the State prior to implementation.
    (d) The PS&Es shall include appropriate pay item provisions for 
implementing the TMP, either through method or performance based 
specifications.
    (1) For method-based specifications individual pay items, lump sum 
payment, or a combination thereof may be used.
    (2) For performance based specifications, applicable performance 
criteria and standards may be used (i.e., safety performance criteria 
such as number of crashes within the work zone; mobility performance 
criteria such as travel time through the work zone, delay, queue 
length, traffic volume; incident response and clearance criteria; work 
duration criteria, etc.).
    (e) Responsible persons. The State and the contractor shall each 
designate a qualified person at the project level who has the primary 
responsibility and sufficient authority for assuring that the TMP and 
other safety and mobility aspects of the project are effectively 
administered.


Sec.  630.1014  Implementation.

    Each State shall work in partnership with the FHWA in the 
implementation of its policies and procedures to improve work zone 
safety and mobility. At a minimum, this shall involve an FHWA review of 
conformance of the State's policies and procedures with this subpart 
and reassessment of the State's implementation of its procedures at 
appropriate intervals. Each State is encouraged to address 
implementation of this subpart in its stewardship agreement with the 
FHWA.


Sec.  630.1016  Compliance Date.

    States shall comply with all the provisions of this subpart no 
later than [date 30 days after publication of the final rule in the 
Federal Register plus 36 months]. For projects that are in the later 
stages of development at or about the compliance date, and if it is 
determined that the delivery of those projects would be significantly 
impacted as a result of this subpart's provisions, States may request 
variances for those projects from the FHWA, on a project-by-project 
basis.

[FR Doc. 04-10902 Filed 5-12-04; 8:45 am]
BILLING CODE 4910-22-P