[Federal Register Volume 72, Number 233 (Wednesday, December 5, 2007)]
[Rules and Regulations]
[Pages 68480-68491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-23581]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 630

[FHWA Docket No. FHWA-2006-25203]
RIN 2125-AF10


Temporary Traffic Control Devices

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: The FHWA is adding a new Subpart K to 23 CFR part 630 to 
supplement existing regulations that govern work zone safety and 
mobility in highway and street work zones to include conditions for the 
appropriate use of, and expenditure of funds for, uniformed law 
enforcement officers, positive protective measures between workers and 
motorized traffic, and installation and maintenance of temporary 
traffic control devices during construction, utility, and maintenance 
operations. These regulations are intended to decrease the likelihood 
of fatalities and injuries to road users, and to workers who are 
exposed to motorized traffic (vehicles using the highway for purposes 
of travel) while working on Federal-aid highway projects. The 
regulations are issued in accordance with section 1110 of the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU), Public Law 109-59, 119 Stat. 1227, codified at 
23 U.S.C. 109(e) and 112(g).

DATES: Effective Date: December 4, 2008.
    The incorporation by reference of certain publications listed in 
this rule is approved by the Director of the Federal Register as of 
December 4, 2008.

FOR FURTHER INFORMATION CONTACT: Mr. Chung Eng, Office of 
Transportation Operations, HOTO-1, (202) 366-8043; or Mr. Raymond W. 
Cuprill, Office of the Chief Counsel, HCC-30, (202) 366-0791, U.S. 
Department of Transportation, Federal Highway Administration, 1200 New 
Jersey Avenue, SE., Washington, DC 20590. 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

    This document, the notice of proposed rulemaking (NPRM), and all 
comments received may be viewed online through the Federal eRulemaking 
portal at: http://www.regulations.gov. The Web site 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 from 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

History

    In 2004, the FHWA published a final rule updating its regulations 
on Work Zone Safety and Mobility (23 CFR 630, subpart J). Section 
630.1006 of subpart J (Work Zone Safety and Mobility Policy) stated 
that ``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, 
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 
multidisciplinary team and in partnership with the FHWA. The States are 
encouraged to implement this policy for non-Federal-aid projects as 
well.'' This final rule on Temporary Traffic Control Devices provides 
additional guidance on the development of such Work Zone Safety and 
Mobility Policies, and specifically addresses the requirements of 
section 1110 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law 
109-59, 119 Stat. 1227, which have been codified at 23 U.S.C. 109(e) 
and 112(g).
    Section 109(e)(2) of title 23, United States Code, states that no 
funds shall be approved for expenditure on any Federal-aid highway 
``unless proper temporary traffic control devices to improve safety in 
work zones will be installed and maintained during construction, 
utility, and maintenance operations on that portion of the highway with 
respect to which such expenditures are to be made. Installation and 
maintenance of the devices shall be in accordance with the Manual on 
Uniform Traffic Control Devices.'' Additionally, section 112(g)(1) 
requires that ``[t]he Secretary, after consultation with appropriate 
Federal and State officials, shall issue regulations establishing the 
conditions for the appropriate use of, and expenditure of funds for, 
uniformed law enforcement officers, positive protective measures 
between workers and motorized traffic, and installation and maintenance 
of temporary traffic control devices during construction, utility, and 
maintenance operations.''
    A NPRM proposing the creation of a new Subpart K of 23 CFR part 630 
was published on November 1, 2006, at 71 FR 64173. The purpose was to 
emphasize the need to appropriately consider and manage worker safety 
as part of the project development process by providing guidance on key 
factors to consider in reducing worker exposure and risk from motorized 
traffic. The FHWA proposed to require that each agency's policy for the 
systematic consideration and management of work zone impacts be 
established in accordance with the recently updated 23 CFR part 630 
subpart J (effective October 12, 2007), and address the consideration 
and management of worker safety as follows:
    1. Avoid or minimize worker exposure to motorized traffic through 
the application of appropriate positive protective strategies 
including, but not limited to, full road closures; ramp closures; 
crossovers; detours; and rolling road blocks during work zone setup and 
removal;
    2. Where exposure cannot be adequately managed through the 
application of the above strategies, reduce risk to workers from being 
struck by motorized traffic through the use of appropriate positive 
protective devices;
    3. Where exposure and risk reduction is not adequate, possible, or 
practical, manage risk through the application of appropriate intrusion 
countermeasures including, but not limited to, the use of uniformed law 
enforcement officers; and
    4. Assure that the quality and adequacy of deployed temporary 
traffic control devices are maintained for the project duration.

[[Page 68481]]

    The FHWA received a substantial number of comments in response to 
the NPRM. On December 19, 2006, at 71 FR 75898, the comment period was 
extended to February 16, 2007, in response to a concern expressed by 
the National Committee on Uniform Traffic Control Devices (NCUTCD) that 
the closing date did not provide sufficient time for discussion of the 
issues in committee and a subsequent comprehensive response to the 
docket. The extension provided the NCUTCD and other interested parties 
additional time to discuss, evaluate, and submit comments to the 
docket.
    A major focus of the comments to the rule as proposed was the need 
for greater flexibility in selecting and applying the specific 
strategies advanced for the required policies and procedures. There was 
also a general interest in providing a balance between the need for 
ensuring the safety of construction and maintenance workers as they 
carry out their tasks in work zones, and the safety of road users as 
they traverse highway work zones.
    In developing this final rule the FHWA has carefully considered the 
comments and suggestions of respondents. Some changes have been made to 
the overall structure of the rule in order to enhance the clarity and 
consistency of each section. Other changes have been made to revise the 
terminology, making it more consistent with the stated intent of 
section 1110 of SAFETEA-LU, and adjusting the language to clarify the 
rule's intent.
    Among the key issues addressed in the development of this final 
rule were the following:
     Revisions to terms and definitions to address all 
treatments and traffic control devices;
     Presentation of treatments as options, not in priority 
order;
     Provision of appropriate pay items for all traffic control 
treatments and operations;
     Flexibility on pay items, acknowledging that either lump 
sum or unit pricing may be appropriate, depending upon circumstances; 
and
     Reference to the need to manage risks associated with work 
vehicles and equipment when they are exiting or entering travel lanes.

Summary Discussion of Comments Received in Response to the NPRM

    The following discussion provides an overview of the comments 
received in response to the NPRM, and the FHWA's actions to resolve and 
address the issues raised by the respondents.

Profile of Respondents

    Comments were submitted by a broad cross-section of organizations 
and individuals, including national organizations representing the 
interests of State departments of transportation and contractors, 
respectively; other industry groups representing manufacturers and 
suppliers of highway construction safety equipment; State and local 
departments of transportation and public authorities; and law 
enforcement agencies, as well as private consultants and other 
individuals. The trade associations providing comments were the 
Associated General Contractors (AGC) of America; the Association of 
Road and Transportation Builders of America (ARTBA); the Laborers' 
Health and Safety Fund of North America (LHSFNA) and the New Jersey 
State Laborers Health and Safety Fund (NJSLHSF); the NCUTCD; the 
American Traffic Safety Services Association (ATSSA); the Water Barrier 
Manufacturers' Association (WBMA); the American Highway Users' Alliance 
(AHUA); the National Association of County Engineers (NACE); Advocates 
for Highway and Auto Safety (AHAS); the Maryland Highway Contractors 
Association (MHCA); and the Colorado Association of Traffic Control 
Professionals (CATCP). FHWA categorized the comments of the American 
Association of State Highway and Transportation Officials (AASHTO) with 
those of State Departments of Transportation (DOTs), because AASHTO 
represents State DOTs. The AASHTO comments noted that their submission 
was a consolidated response to the NPRM on behalf of its member States. 
Many State DOTs provided additional comments individually.

Overall Position of Respondents

    Taken as a whole, the responses to the NPRM were supportive of the 
intent of the rule, noting the vulnerability of highway workers in work 
zones and the need to reduce work zone hazards to workers and road 
users alike. Some respondents thought that the rule as proposed went 
too far in imposing requirements on agencies undertaking highway 
construction projects, while others felt that the rule as proposed did 
not go far enough in protecting workers.
    In all, there were 80 entries into the docket for comments on the 
proposed rule. Of these entries, 4 were posted by FHWA (the proposed 
rule, two background documents providing supporting information to 
respondents, and a notice extending the comment period for the NPRM). 
An additional three comments were requests for an extension of the 
comment period. Thirteen entries into the docket were duplicates of 
previous entries, or comments that were substantially the same but 
provided some additional information in support of the comments. Of the 
60 remaining responses to the NPRM, 29 respondents supported the 
proposed rule; in general, these respondents supported the rule as 
proposed and agreed with the overall purpose, structure, and language, 
though their comments may have included specific recommendations for 
clarification or revisions. Another 27 respondents indicated opposition 
to the NPRM. These respondents generally opposed the rule as proposed; 
most of these respondents agreed with the overall purpose of the 
proposed rule, but may have opposed the structure and language of the 
NPRM (e.g., most State DOTs agreed with the intent of the rule, but 
disagreed with some specific language). Other respondents may have been 
neutral toward the rule as a whole, but had some specific 
recommendations for changes.
    Most respondents restricted their comments to the proposed 
regulatory language. However, some addressed material contained in the 
preamble. One respondent suggested that the approach described in the 
NPRM would have the potential for increased congestion, inconvenience, 
and increased travel time and cost to deliver goods and services, which 
would seem inconsistent with the goals set forth in the National 
Strategy to Reduce Congestion on America's Transportation Network, and 
that project characteristics, system capacity, and mobility needs may 
dictate other approaches. FHWA concurs with the comments that safety 
measures should be implemented on the basis of project characteristics 
and that agencies should take into consideration the possible impacts 
of such measures on system capacity and mobility. However, FHWA feels 
that the final rule provides sufficient flexibility for operating 
agencies to select measures that will provide an appropriate level of 
protection both to road users and to workers in work zone activity 
areas, while maintaining adequate levels of mobility.

Section-by-Section Analysis of the NPRM Comments and FHWA Response

    Because of the restructuring of the rule in response to FHWA's 
review of the comments received, the numbering of sections in the final 
rule is not entirely consistent with the proposed rule. Therefore, 
comments will be

[[Page 68482]]

addressed below as they relate to the applicable section of the final 
rule.

Section 630.1102 Purpose

    Most State DOTs agreed in general terms with the purpose as 
written. Twenty State DOTs (out of 26 submitting comments) explicitly 
endorsed AASHTO's response, which included suggested changes to the 
language. Among AASHTO's suggestions was that the purpose recognize 
that road user safety should not be compromised by the implementation 
of any of the rule's requirements. The Maryland State Highway 
Administration (SHA) noted that the ``section-by-section'' discussion 
in the NPRM for the ``Purpose'' section says, ``[b]y emphasizing worker 
safety, the proposed rule would attempt to enhance the safety of both 
the motorist and worker during the project.'' However, the SHA felt 
that the proposed rule seems to be tilted in favor of worker safety, 
and the balance between the safety of workers and those of the 
traveling public has not been attained.
    The FHWA agrees that the objective is to ensure both worker and 
road user safety. In emphasizing worker safety in the purpose of the 
proposed rule, the FHWA attempted to provide a better balance between 
consideration of the safety of workers and those of the traveling 
public. The FHWA recognizes that the safety of both workers and road 
users are equally important and has revised the purpose to clearly 
reflect that this regulation is intended to improve work zone safety 
for workers and road users alike.
    AASHTO's comments also proposed that the final rule should not 
apply to ``all State and local highway agencies that receive Federal-
aid highway funding,'' but rather make the rule applicable to all 
``Federal-aid projects.'' AASHTO also suggested that the FHWA consider 
including a statement encouraging States to implement these 
requirements on non-Federal-aid projects as well. In the proposed rule, 
the first and second sentences under ``Purpose'' were meant to be taken 
together, thus indicating applicability to Federal-aid highway projects 
and recipients of Federal-aid highway funding. The language in the 
purpose section has been clarified to indicate that this final rule 
applies only to Federal-aid projects. Language has also been added to 
encourage application of this rule to non-Federal-aid projects as well.
    One respondent argued that a primary intent of the rule is to get 
State DOTs and other agencies to ensure adequate funding to promote 
worker and road user safety in the work zone planning and design 
process. While acknowledging that FHWA and the Occupational Safety and 
Health Administration (OSHA) have different responsibilities, the 
respondent suggested that this rule should ``strike a common ground 
between the two.'' The respondent went on to urge that FHWA take a more 
expansive view of worker safety, addressing safety within the work 
space as well as the interface between workers and motorized traffic. 
Another respondent suggested that the purpose statement should be 
changed to ``establish requirements and provide guidance for addressing 
worker safety by limiting the exposure to hazards and risks inside the 
work zone as well as to hazards and risks from motorized traffic.'' 
This change would expand the scope of the rule to include worker safety 
inside the work zone, whether or not there is an intrusion. In response 
to the comments regarding worker safety from hazards and risks inside 
the work area, the FHWA agrees that worker safety related to internal 
operations is important, but believes that workplace safety 
requirements are outside the scope of this rulemaking effort and this 
subpart, and fall under the purview of OSHA.
    Some respondents observed that the proposed rule would require 
changes to the Manual on Uniform Traffic Control Devices (MUTCD). The 
FHWA agrees that some of the provisions included in the regulation may 
be appropriate for consideration to be added to the MUTCD; the criteria 
and provisions for positive protection and law enforcement are, for the 
most part, good information that can be made more readily available by 
adding it as guidance or support to the MUTCD. Inclusion of such 
provisions in the MUTCD may be addressed by the FHWA in a separate and 
future rulemaking action.

Section 630.1104 Definitions

    The FHWA made several changes to the terms used throughout the 
final rule to clarify the meaning of the term ``positive protective 
measures.'' Changes have been made to the structure of the rule and 
definitions to strengthen and clarify the intent of the rule, based on 
the statutory language.
    One respondent suggested that all definitions should be consistent 
with existing definitions in the MUTCD, while at the same time ensuring 
that new terms are not so similar to existing terms as to cause 
confusion. It was also suggested that any term not in the current MUTCD 
should be included in the next MUTCD. The FHWA generally agrees, and 
inclusion of appropriate terminology in the MUTCD may be addressed in a 
separate and future rulemaking action.
    In reference to a term used elsewhere in the proposed rule, a 
respondent suggested that ``[t]he term `live travel lane' as referenced 
in section 630.1106 should be defined under this section.'' This 
wording has been revised in the final rule, now under section 630.1108, 
to read ``travel lanes open to traffic'' to better convey its meaning 
and as a result, the FHWA does not believe a definition is now 
required.
    The terms appearing in the final rule are discussed below:
    Agency. The definition for ``Agency'' was revised to include public 
authorities.
    Exposure Control Measures. This definition was added to address 
concerns expressed by a number of respondents that terms as presented 
in the NPRM were somewhat confusing and potentially misleading. 
``Exposure Control Measures'' was added in place of ``Positive 
Protective Strategies'' to reflect the fact that strategies were not 
aimed solely at preventing vehicles from entering the work space, but 
to reduce worker and road user exposure through a variety of 
strategies.
    Federal-aid Highway Project. This definition was left unchanged.
    Motorized Traffic. This definition was modified to clarify the 
reference to ``construction or maintenance vehicles and equipment,'' 
and to emphasize that, while protection of workers and road users is 
equally important, the strategies used to address road users may be 
different from strategies primarily affecting construction vehicles and 
equipment, particularly when they are entering or exiting the protected 
area of the work zone. We declined to accept a comment suggesting that 
the term ``motorized traffic'' be expanded to include work vehicles in 
favor of describing in more detail the need to draw distinctions 
between vehicles passing through the work zone and vehicles operating 
within the work zone and its protected areas.
    Other Traffic Control Measures. This definition was added to 
reflect structural changes in the rule that changed the nomenclature 
for different activities, and to underscore the distinction between the 
``exposure control measures,'' ``positive protection devices,'' and any 
other strategies used to improve worker safety. The term ``Intrusion 
Countermeasures'' was eliminated because the measures listed were 
broader than simply reducing intrusion risk, and the term ``Other 
Traffic Control Measures'' is more descriptive of these measures.

[[Page 68483]]

    Positive Protection Devices. A minor change in the wording was made 
to clarify that such devices may either contain or redirect vehicles, 
or perform both functions. The FHWA agrees that the term ``contain and 
redirect'' may be confusing, because some devices do not redirect 
impacting vehicles. Many types of crash cushions and arrestor nets 
contain vehicles, but do not redirect.
    The terms ``Positive Protective Strategies'' and ``Positive 
Protective Measures'' were eliminated, based on the potential confusion 
involved in using three closely related terms with different meanings. 
While 23 U.S.C. 112(g)(4) refers to ``Positive Protective Measures,'' 
the FHWA felt that the intent would be best served by using somewhat 
different terminology in the final rule.
    Work Zone Safety Management. The term ``Work Zone Safety 
Management'' was added as an ``umbrella'' encompassing all actions 
taken by an agency to ensure the protection of workers and road users 
in work zones, including the development of policies, procedures, and 
guidelines for individual projects or programs. This term was added to 
respond to comments that the terminology in the NPRM was ambiguous and 
inconsistent with both current practice and the language of section 
1110 of SAFETEA-LU.

Section 630.1106 Policy and Procedures for Work Zone Safety Management

    Section 630.1106 was reorganized and refined from the proposed 
rule, largely in response to comments submitted to the docket. Material 
in the proposed rule was rearranged to separate elements related to 
overall policies and procedures to be developed by State DOTs from 
specifics related to particular traffic control strategies and the 
implementation of work zone safety measures.
    Subsection (a) of section 630.1106 describes the nature of the 
required work zone safety measures and traffic control strategies, and 
encourages State DOTs to work in partnership with FHWA in developing 
policies and procedures. This use of the term ``partnership'' is 
consistent with existing language in Subpart J--Work Zone Safety and 
Mobility.
    Subsection (b) refers to the MUTCD and the AASHTO Roadside Design 
Guide (RDG) as sources of information on work zone safety methods and 
traffic control strategies, and presents some of the project and 
highway characteristics and factors that the State DOTs should take 
into consideration when determining which measures and strategies 
should be employed.
    Several respondents to the NPRM were concerned about the 
specificity of some of the language in the proposed rule, commenting 
that the proposed rule imposed requirements without any supporting 
research indicating that the proposed criteria were appropriate. The 
FHWA acknowledges that there is no definitive research supporting 
specific criteria. The language in the final rule has been modified to 
clarify the intent of the rule, which is to require appropriate 
consideration and management of worker and road user safety when 
planning highway construction, maintenance, and utility operations. The 
new language retains and expands the listing, previously located in 
subsection (a), of some of the characteristics and factors that should 
be considered when deciding what work zone safety measures should be 
used, while giving agencies flexibility in determining the criteria and 
thresholds that would affect decisions about the use of different 
strategies.
    A comment relating to the specificity of the proposed rule noted 
that the original language ``contains three specific requirements for 
the use of longitudinal barrier that cause significant concern, as they 
are restrictive and will have unintended negative consequences if 
applied unilaterally to all work zones. These requirements include: (1) 
Stationary work zones lasting two weeks or more; (2) with a design 
speed of 45 mph or higher; and (3) where workers are within one-lane-
width of a live travel lane.'' In specifying these specific thresholds 
in the proposed rule, the intent was to use them as triggers for 
requiring an analysis on the need for positive protection devices 
rather than as direct requirements for the use of positive protection 
devices. These factors are now part of a more comprehensive set of 
considerations, and are not characterized as ``requirements.'' As 
modified, the final rule still requires consideration of worker and 
road user safety, but provides more flexibility to agencies along with 
guidance on the factors that should be taken into account in selecting 
work zone safety measures.
    Several respondents expressed concern about the term ``project 
design speed.'' The FHWA concurs that ``project design speed'' is 
inappropriate. While the intended meaning of this term was the work 
zone design speed rather the design speed of the completed project, it 
may still not reflect the actual traffic speeds through the work zone. 
The language in the final rule has been modified to refer to 
anticipated traffic speeds through the work zone rather than the 
project design speed.
    A respondent to the NPRM observed that ``the material in the AASHTO 
Roadside Design Guide is intended to serve as guidance, not as 
requirements.'' The respondent indicated some discomfort with 
provisions that seem to suggest that the Guide is to be treated as a 
specific regulation (e.g., actions shall be ``consistent with'' or ``in 
accordance with'' that Guide). The commenter believes that such wording 
suggests that FHWA will be determining whether a State has acted in 
accordance with the Guide, even though the Guide itself is, as FHWA 
stated, a ``resource document.'' Language in the final rule has been 
modified to make clear that guidance included in the AASHTO Roadside 
Design Guide is not, and should not be construed as a ``regulation.''
    Another respondent expressed concern that the requirements in 
section 630.1106 are ``arbitrary and overly prescriptive.'' The 
respondent believes that States should be required to develop policies 
that help protect highway worker safety and that they should begin by 
examining the application of strategies that would avoid or minimize 
worker exposure, even though in many, if not most cases, these 
strategies will not be practical. However, the respondent felt that 
section 630.1106(a) should be ``softened,'' and that this section 
should be written more as recommendations rather than as requirements. 
The FHWA has modified the language in this section to emphasize that 
States have the flexibility to develop policies and procedures that are 
appropriate to the circumstances of a given project or program.
    Subsection (c) deals with law enforcement, directing State DOTs and 
other agencies undertaking construction projects with Federal-aid funds 
to develop a policy addressing the use of uniformed law enforcement on 
such projects. The policy may consist of processes, procedures, and/or 
guidance, as appropriate.
    Overall, there is good support and little or no opposition to the 
concept of agencies developing a policy for work zone law enforcement. 
The most significant concerns related to the manner of FHWA involvement 
in development of the policy, and some of the individual provisions to 
be included. One respondent argued that the language in the proposed 
rule, which ``states that `Each agency in cooperation with FHWA, shall 
develop a policy * * *' suggests a possible

[[Page 68484]]

interpretation of some type of joint authority for FHWA to decide how 
States utilize and pay for law enforcement. This would lead to FHWA 
involvement in a State's internal management, which is not 
appropriate.'' In response to this concern, the FHWA changed the term 
``cooperation'' to ``partnership.'' This is the same terminology 
currently used in Subpart J. Some respondents expressed concern that 
the proposed rule would have required operating agencies to take 
responsibility for an area over which they had no control--that is, the 
integration of law enforcement with work zone safety measures. Another 
respondent noted the difficulty of ensuring compliance due to the 
numerous entities involved in law enforcement, including State law 
enforcement agencies, sheriff departments in multiple counties, and a 
host of local agencies. The respondent suggested that the rule should 
include accommodations with numerous and widespread layers of law 
enforcement involved in safeguarding their roads.
    The FHWA recognizes that some highway agencies do not have direct 
connections to law enforcement agencies. However, the FHWA does not 
believe that is a valid reason for not developing an agency enforcement 
policy and procedures as stated in the final rule under section 
630.1106(c). The final rule does not impose specific requirements on 
the use of law enforcement and is not prescriptive. While section 
630.1108(e) requires the agency to develop a law enforcement policy, it 
does not dictate what the policy is to contain. Each operating agency 
has the flexibility to develop a policy suitable for its situation in 
consideration of the factors listed. Numerous options can be used to 
acquire law enforcement services. The rule does not limit the required 
agency policy to consideration of only the State law enforcement 
agency. In fact, a number of State highway agencies currently have 
agreements in place with various local law enforcement agencies as well 
as State law enforcement agencies. Contractors can hire off-duty 
officers using contract funds as another alternative. Officer training 
is one of the issues that need to be addressed when developing whatever 
inter-agency accords may be needed to implement the agency policy.
    A number of States have good policies and programs in place for use 
of law enforcement in work zones. For example, a comment by the 
California Highway Patrol (CHP) describes its approach. ``California's 
work zone law enforcement program, the Construction/Maintenance Zone 
Enhanced Enforcement Program (COZEEP/MAZEEP), is based on CHP policy 
and interagency agreements between the California Department of 
Transportation (Caltrans) and the CHP. The current policy and 
agreements adequately meet the issues addressed in this proposed 
rulemaking. However, to improve communication and interaction, CHP and 
Caltrans are currently working toward joint training for CHP officers 
and Caltrans staff to clarify the roles and responsibilities of 
Caltrans and CHP at the COZEEP/MAZEEP details.''

Section 630.1108 Work Zone Safety Management Measures and Strategies

    Section 630.1108 is reorganized and refined in this final rule. One 
comment that was made repeatedly by respondents to the NPRM was that 
the proposed rule was arbitrary and too prescriptive, and that the 
proposed rule did not permit State DOTs and other affected agencies to 
make judgments about which work zone safety measures and traffic 
control strategies would be most appropriate for a given situation. 
Respondents generally supported a decision process based on an 
engineering study including consideration of specific work zone factors 
and existing guidance in the MUTCD and the RDG. An approach that 
appears to have support from both agencies and industry is to provide a 
clear listing of the available options, along with a discussion of the 
factors and existing guidelines that should be considered. Such an 
approach would also include the specific requirement that the agency 
policy developed in response to 23 CFR 630.1006 must address both 
worker and road user safety, and include consideration of the safety 
options presented in this final rule. FHWA agrees with these 
observations and has modified the language in the final rule to better 
reflect the intent of the rule, which is to require appropriate 
consideration and management of worker and road user safety when 
planning highway construction, maintenance, and utility operations, 
while giving agencies flexibility in determining the criteria and 
thresholds that would affect decisions about the use of different 
strategies. Throughout the final rule, many of the proposed ``shall'' 
statements were modified to emphasize that the proposed strategies or 
measures represented the types of actions that should be considered, 
and to make clear that the suggested actions were not being presented 
in a prescriptive priority order.
    Comments from one group of respondents focused on the use of 
portable concrete barriers (PCB) as a form of positive protection. The 
respondents observed that, ``According to the Roadside Design Guide, 
`As with all types of traffic barriers, a median barrier should be 
installed only if striking the barrier is less severe than the 
consequences that would result if no barrier existed.' This is due to 
the fact that the PCB has such high Occupant Risk Values when 
impacted.'' The respondents continued, ``Due to the fact that the 
Occupant Risk Values are much greater when impacting PCB than when 
impacting water-filled barriers, a significant margin of safety could 
be made available to the motoring public, if water-filled barriers were 
utilized in place of PCB.... Based on the serious and fatal injuries to 
vehicle occupants resulting from a number of crashes involving PCBs, we 
recommend that language be inserted in this section that would disallow 
PCBs from being installed on the NHS; or installed only in extreme 
situations. Instead of PCBs, we recommend that water ballast barriers 
be used exclusively according to accepted design guidelines and only 
where needed to shield work zone hazards.'' The FHWA does not agree 
with the comment or the suggested change. The FHWA does not believe 
that any significant overall advantage exists for water-filled barrier 
and it offers some disadvantages such as freezing and icing in cold 
temperatures. As worded, the rule allows agencies to select from any 
positive protection devices that meet the performance criteria set 
forth in NCHRP Report 350, ``Recommended Procedures for the Safety 
Performance Evaluation of Highway Features.''
    Another respondent enumerated other concerns with respect to the 
use of PCBs as positive protection devices, expressing concern about 
the impact of strict requirements on primary roadway widening 
construction in their State. The respondent noted that in general, PCBs 
are utilized where there is a grade elevation change and where drop-
offs (greater than two inches) adjacent to a travel lane are necessary, 
for a period of longer than one work day or work shift. The respondent 
felt that a literal reading of the proposed rule would necessitate 
placement of PCB at all edges of the roadway adjacent to construction 
activities. The PCB would occupy roadway width normally available for 
use as part of the adjacent travel lane, reducing the average 24-foot 
wide road to only 20 feet of available travel area. The respondent 
indicated that this

[[Page 68485]]

would eliminate opportunities for simultaneous construction on each 
side of the roadway. Currently, the agency submitting the comment 
requires construction of temporary pavement in locations adjacent to 
temporary concrete barrier wall to maintain 12 foot travel lanes. The 
requirements proposed in this rule would necessitate the construction 
of miles of temporary pavement to maintain 12 foot travel lanes. 
Without the temporary pavement, traffic would be restricted to 10 foot 
travel lanes with a longitudinal barrier on one side of the roadway. 
The respondent noted that such conditions could be especially hazardous 
on roadways with substantial truck traffic. Furthermore, the respondent 
noted that it would be necessary to install breaks in the temporary 
concrete barrier wall to maintain driveway access, and each break would 
require the installation of a portable terminal impact attenuator. The 
respondent felt that in areas with multiple driveways in close 
proximity to one another, maintenance of a safe installation of 
temporary concrete barrier wall would be problematic at best. The FHWA 
agrees that project characteristics need to be considered in decisions 
involving the use of barriers and language in the final rule requires 
that the need for positive protection devices be based on an 
engineering study.
    Some respondents commented that the proposed rule did not go far 
enough, and suggested that the final rule should be strengthened to 
require minimum work zone safety measures or traffic control measures, 
based on specific criteria. Others proposed that the final rule should 
provide a ``preference of controls,'' beginning with consideration of 
positive protection strategies, followed by consideration of positive 
protection devices, and then use of intrusion countermeasures. This 
runs counter to many other comments, which argued for greater 
flexibility in selection of appropriate work zone safety measures. FHWA 
concurs with the respondents who argued that there is no definitive 
research available to support highly prescriptive criteria for when 
specific work zone safety measures should be deployed. Neither is there 
evidence that there should be a rigid hierarchy or preference of 
controls. Instead, FHWA believes that the types of controls appropriate 
for any given work zone depend on the circumstances (location, volume 
and speed of adjacent traffic, availability of escape routes for 
workers, duration of the construction project) and the characteristics 
of the construction activity (drop-offs, proximity of workers to travel 
lanes, etc.). Agencies responsible for the construction project should 
determine the appropriate traffic control measures either on the basis 
of an engineering study for the individual project, or based on 
policies adopted by the agency for certain classes of projects. Traffic 
control strategies that provide for the safety of both workers and road 
users may be selected alone or in combination, after considering the 
characteristics and circumstances of the construction project.
    One respondent argued that without permanent barriers, most 
maintenance workers are left unprotected from vehicle intrusions. The 
respondent expressed a preference that all work should be performed 
behind a permanent barrier, but acknowledged that this would not be 
possible. When permanent barriers could not be used, the respondent 
stated that the following measures should be mandated: Uniformed on-
duty law enforcement officers in marked cars; marked law enforcement 
cars to pace traffic to reduce vehicular speeds adjacent to the work 
zone; buffer lanes between workers and the traveling public (Interstate 
highways with posted speed limits 55 mph or greater should have at 
least one buffer lane, and those in excess of 70 mph should have a 
minimum of two buffer lanes); water-filled barriers; and light towers 
around the work area to alert the public of highway work. FHWA does not 
agree, nor do most of the other commenters, that all work should be 
performed behind a permanent barrier. This is unrealistic and does not 
necessarily provide the best overall safety for all concerned. The 
suggestions of alternative measures that should be mandated would 
appear arbitrary in many respects and would limit an agency's ability 
to consider the entire range of safety treatments in order to obtain 
the best balance of worker and road user safety, mobility, 
constructability, and cost.
    Another respondent suggested that FHWA should develop its own 
guidelines or reference non-proprietary products. The respondent also 
suggested that State agencies should be required to first look to 
deploy the most protective devices before being allowed to use a less 
protective measure. The FHWA strongly supports continued research to 
develop improved guidelines for application of the various treatments. 
However, the FHWA believes that such research is most appropriate under 
the National Cooperative Highway Research Program (NCHRP). In fact, 
NCHRP just recently released a study on the Design of Construction Work 
Zones on High-Speed Highways (NCHRP Report 581), which is an excellent 
example of the kind of emerging research that can guide agencies in 
designing work zones that will help ensure the safety of both road 
users and construction or maintenance workers. It appears that by 
``most protective,'' the commenter means temporary traffic barrier. The 
FHWA does not agree that this should always be the priority. The 
preferred approach is one that would provide the best overall 
management of safety, mobility, constructability, and cost. Requiring 
the highest level of positive protection does not necessarily result in 
the highest level of any of these objectives.
    Some respondents provided extensive comments on such issues as the 
desirability of full road closures, and the need for Federal funding to 
encourage such actions; requiring ``Type I and Type II barricades'' in 
place of plastic or rubber cones and delineators; requiring the use of 
``pennant flagging or similar durable warning tape'' to sequester 
sections of Portland concrete cement (PCC) that have been freshly laid; 
requiring the presence of an ATSSA Work Zone Supervisor-qualified 
person on projects; and to require training for contractors on the use 
of rolling road blocks. While some of these comments have merit, they 
are generally beyond the scope of this rulemaking action. However, it 
should be noted that Subpart J does require that both the contractor 
and State DOT designate a person responsible for implementing the 
project TMP and that said individual be properly trained in accordance 
with Subpart J.
    The FHWA agrees with many of the suggestions offered by commenters 
and has substantially revised section 630.1108 as described below.
    Section 630.1108(a) requires that agencies undertaking highway 
construction projects with Federal-aid funding determine the need for 
positive protection devices on the basis of an engineering study. This 
responds in part to comments from respondents that the term 
``engineering analysis'' used in the proposed rule was not in common 
use among State DOTs and other agencies, but that the term 
``engineering study'' is used in the MUTCD and is well-understood by 
such agencies. It also serves to address the language in 23 U.S.C. 
Sec.  109(e)(2), which states that the ``[i]nstallation and maintenance 
of the [proper temporary traffic control] devices shall be in 
accordance with the Manual of Uniform Traffic Control Devices.'' 
Section 630.1108(a) also emphasizes that the conditions enumerated in 
section 630.1106 should

[[Page 68486]]

be considered when agencies establish what work zone safety measures 
should be deployed, and identifies some circumstances under which the 
use of positive protection measures are required to be considered.
    In section 630.1108(a), the FHWA also responds to concerns that 
undertaking an engineering study for every work zone, including 
situations where routine maintenance of facilities is to be undertaken, 
would be cost-prohibitive. The final rule notes that an engineering 
study ``may be used to develop positive protection guidelines for the 
agency, or to determine the measures to be applied on an individual 
project.'' In other words, agencies may establish a policy, supported 
by an engineering study, that dictates the types of work zone safety 
measures and traffic control strategies that must be implemented at a 
minimum for certain types of work. Engineering studies could also be 
undertaken for a specific project based on characteristics of the 
project or of the circumstances surrounding the project. Factors to be 
considered in developing a policy for providing traffic control 
measures for different types of projects, or that might trigger an 
engineering study for a particular project, are enumerated in this 
subsection. Such characteristics and factors include duration of the 
construction zone, site characteristics that would provide workers no 
means of escape from motorized traffic (e.g., tunnels, bridges, etc.), 
operating speeds of traffic in lanes adjacent to the work zone, and 
other elements.
    Section 630.1108(b) discusses the use of ``Exposure Control 
Measures.'' This term was added in place of ``Positive Protective 
Strategies'' to reflect the fact that strategies were not aimed solely 
at preventing vehicles from entering the work space, but to reduce 
worker exposure through a variety of strategies. One respondent 
suggested that the use of the phrase ``during work zone set up and 
removal'' following ``rolling road blocks'' should be clarified to 
indicate that it only refers to rolling road blocks, and not to the 
other strategies suggested to minimize worker exposure in the proposed 
rule. Another respondent suggested adding off-peak or night work as 
another strategy to be considered. The FHWA agrees with these 
suggestions. Each suggested strategy has been itemized in the final 
rule for clarity and night or off-peak work, as well as accelerated 
construction techniques, have been added as additional strategies.
    Section 630.1108(c) addresses ``Other Traffic Control Measures,'' 
which are designed to reduce the number of work zone crashes or to 
minimize the risks and consequences of intrusion of motorized vehicles 
into the work space. Several respondents to the NPRM took exception to 
the use of the term ``Intrusion Countermeasures'' in the proposed rule. 
Several respondents noted that some of the measures or strategies 
included under the rubric of ``Intrusion Countermeasures'' did not have 
anything to do with preventing a vehicle from ``intruding'' or 
penetrating barriers into the work space. FHWA has changed the title of 
this section and the wording to reflect the fact that this class of 
measures or strategies includes actions that relate to increased driver 
awareness and alertness in work zones, as well as improvements in 
worker training, improved worker visibility, and the use of law 
enforcement personnel. This section clarifies that no single measure or 
strategy will be effective in all circumstances, and that strategies 
should be considered in combination in order to provide the maximum 
protection reasonably available to protect workers and road users 
alike.
    With respect to specific measures, respondents expressed various 
levels of support (or opposition) for several strategies. One 
respondent encouraged FHWA to ``strongly recommend automated speed 
enforcement rather than merely suggesting it.'' Automated speed 
enforcement is one of the available traffic control measures and is 
included in the list of strategies for consideration. However, the FHWA 
recognizes that implementation of this strategy would require 
legislative action by most States. Another respondent noted that 
``[a]utomated intrusion alarms present a concern due to problems in 
linking devices in miles-long, drum-protected work zones.'' FHWA agrees 
that intrusion alarms, like most of the other tools listed, may not be 
suitable for all situations. However, the wording in section 
630.1108(c) simply lists it as a tool that may be considered. Several 
additional measures were added in response to comments, including 
public and traveler information, and temporary traffic signals.
    Section 630.1108(d) provides guidance on the use of law enforcement 
personnel to increase work zone safety. This subsection emphasizes 
that, while the use of law enforcement personnel can be effective in 
increasing driver awareness of work zones and compliance with posted 
warnings, such law enforcement presence is not a substitute for 
temporary traffic control devices required by the MUTCD. This 
subsection describes a number of circumstances under which the use of 
law enforcement personnel may be appropriate, particularly ``on 
projects with high traffic speeds and volumes, and where the work zone 
is expected to result in significant disruption to or changes in normal 
traffic flow patterns.''
    This subsection also addresses the issue of pay items for law 
enforcement, as required by 23 U.S.C. 112(g). Language from the 
proposed rule on Federal-aid participation in costs associated with the 
provision of law enforcement personnel for work zone safety is 
retained, including the stipulation that ``law enforcement activities 
that would normally be expected in and around highway problem areas 
requiring routine or ongoing law enforcement traffic control and 
enforcement activities'' are excluded from eligibility for Federal-aid.
    Section 630.1108(e) was added to address concerns expressed by a 
number of respondents to the NPRM noting that there are hazards 
associated with the entry or exit of construction vehicles and 
equipment from the protected area of the work zone, whether for 
delivery of supplies and material or for other purposes. The new 
section 630.1108(e) acknowledges this situation, which poses risks to 
both workers and travelers, and states that agency processes, 
procedures, and/or guidance should ``address safe means for work 
vehicles and equipment to enter and exit traffic lanes and for delivery 
of construction materials to the work space, based on individual 
project characteristics and factors.''
    Section 630.1108(f) addresses the issue of pay items. FHWA strongly 
supports the concept of providing appropriate payment for all work zone 
traffic control features needed to address both safety and mobility 
impacts of a highway project. Most highway agencies (but not all) and 
contractors also support this concept. However, the real issue is in 
how best to accomplish this. The FHWA believes that this issue arose 
because, even at this time, some agencies provide little or no specific 
payment for work zone safety features, and in extreme cases, provide 
only minimal information as to what features are required. Any payment 
provided is either incidental to other items of work, or is grouped 
into a single item for traffic control. This approach is unacceptable 
in that conscientious contractors are at a significant disadvantage 
because they provide more safety, without payment, than other 
contractors that choose to neglect safety to achieve a cost advantage. 
This problem gives rise to

[[Page 68487]]

the frequent complaint of the ``lack of a level playing field.'' The 
FHWA believes that this is the issue that the wording in the Federal 
statute attempts to address, and the final rule requires that payment 
for work zone traffic control features and operations ``shall not be 
incidental to the contract, or included in payment for other items of 
work not related to traffic control and safety''. A related concern is 
that contractors may need to include a ``contingency factor'' in bids 
to make sure they cover the costs of safety requirements that are not 
clearly defined in project plans, specifications, and estimates 
(PS&Es), thus resulting in higher bid prices.
    Many agencies include a range of pay items in their project PS&Es 
that provide adequate payment for traffic control, and provide a range 
of payment items (both lump sum and unit price) for the various safety 
features needed. Lump sum and unit price payments represent two 
different approaches to reimbursing contractors for costs associated 
with construction activities. In deciding whether to use unit price or 
lump sum payment methods, agencies generally consider the following:
     Unit price payment should be limited to those items where 
the quantity can either be quantified in advance, or closely controlled 
by the agency during construction. If the quantity cannot be predicted 
and controlled, it gives rise to the potential for unbalanced bidding. 
Both agencies and many responsible contractors realize these risks, and 
do not generally support unit price pay items where quantities cannot 
be predicted and controlled by the agency.
     Lump sum payment reduces the risks of unbalanced bids for 
features where the actual quantity is dependent upon the manner the 
contractor selects to accomplish the work. However, to reduce risks to 
contractors of uncontrolled costs (which may result in higher bids), 
allowance for contingency payments on lump sum items when the overall 
quantity or nature of the work changes is desirable and is provided by 
some agencies.
    Section 112(g)(2) of title 23, United States Code, requires 
``separate pay items for the use of uniformed law enforcement officers, 
positive protective measures between workers and motorized traffic, and 
installation and maintenance of temporary traffic control devices'', 
but does not require unit price pay items. In an attempt for clarity, 
``positive protective measures'' was broken down into ``positive 
protective devices'' and ``positive protective measures'' in the 
proposed rule. The proposed rule addressed payment for positive 
protective devices and uniformed law enforcement officers, but did not 
require a separate pay item for the installation and maintenance of 
temporary traffic control devices because the FHWA felt that doing so 
would not be substantially different from current practice. Separate 
payment for positive protective strategies was not specifically 
addressed in the proposed rule as strategies ultimately translate to 
devices. Based on comments received and a broader interpretation of the 
language in section 112(g)(2), the final rule addresses pay items in a 
more comprehensive fashion by supplementing the requirements of 23 CFR 
630.1012(d) with additional requirements as well as guidance. This 
includes the requirement that separate pay items be provided for major 
categories of traffic control devices, safety features, and work zone 
safety activities, including but not limited to positive protection 
devices, and uniformed law enforcement activities when funded through 
the project.

Section 630.1110 Maintenance of Temporary Traffic Control Devices

    This section was relatively non-controversial, and retains most of 
the wording of the proposed rule. One recurring comment is worth 
mention again here--numerous suggestions called for use of the term 
``Guidelines'' in lieu of ``Standards,'' as stated in the language of 
the proposed rule. Some argued that ``The term `quality standards' will 
result in significant liability for State DOTs, leading to the need for 
constant inspection and maintenance.'' After further consideration, and 
recognizing that the ATSSA reference noted in the NPRM is a guideline, 
FHWA agrees that the use of the term ``guidelines'' in lieu of 
``standards'' would be preferable.
    One comment took exception to the use of the term ``assure'' in the 
proposed rule. The respondent contended that use of the term ``assure'' 
means to put beyond all doubt, and asserted that maintenance of quality 
standards to the level of certainty would be cost-prohibitive. The 
language in the final rule has been revised to eliminate use of the 
term ``assure.''
    Several comments were made about the use of certain colors on 
warning signs. The FHWA believes that such recommendations are beyond 
the scope of the rule and the requirements of section 1110 of SAFETEA-
LU.

National Congestion Initiative

    The final rule includes measures that could further the goals of 
the Secretary of Transportation's National Strategy to Reduce 
Congestion on America's Transportation Network, announced on May 16, 
2006.\1\ By requiring the development and implementation of guidelines 
to help maintain the quality and adequacy of temporary traffic control 
devices on Federal-aid highway projects, the FHWA anticipates that the 
proposed rule will help reduce congestion by ensuring that road users 
are always provided with positive guidance while traveling through work 
zones.
---------------------------------------------------------------------------

    \1\ Speaking before the National Retail Federation's annual 
conference on May 16, 2006, in Washington, DC, former U.S. 
Transportation Secretary Norman Mineta unveiled a new plan to reduce 
congestion plaguing America's roads, rail, and airports. The 
National Strategy to Reduce Congestion on America's Transportation 
Network includes a number of initiatives designed to reduce 
transportation congestion. The transcript of these remarks is 
available at the following URL: http://www.dot.gov/affairs/minetasp051606.htm.
---------------------------------------------------------------------------

Rulemaking Analysis and Notices

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

    The FHWA has determined that this action would not be a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of U.S. Department of Transportation 
regulatory policies and procedures. A recent synthesis of positive 
protection practices in highway work zones indicates that a wide range 
of positive protection devices and other safety treatments are already 
being used by State highway agencies.\2\ This synthesis found that 
among positive protection devices, portable concrete barriers and 
shadow vehicles equipped with truck mounted attenuators (SV/TMAs) were 
being used by nearly every State highway agency. The final rule 
emphasizes the need to consider worker and road user safety as an 
integral part of each State highway agency's process for considering 
and managing the overall impacts due to work zones. As such, any 
additional usage of positive protection devices resulting from the 
proposed action would be incremental to what many State highway 
agencies are already using to address work zone safety. In addition, 
consideration of exposure control and other traffic control measures 
that would avoid or minimize worker exposure to motorized traffic may 
decrease the overall need for positive protection devices. Accordingly, 
it is anticipated that the

[[Page 68488]]

economic impact of this rulemaking would be minimal.
---------------------------------------------------------------------------

    \2\ Transportation Research Board (TRB), National Cooperative 
Highway Research Program (NCHRP) Project 20-7(174), A Synthesis of 
Highway Practice--Positive Protection Practices in Highway Work 
Zones, June 17, 2005. Available in the docket.
---------------------------------------------------------------------------

    The final rule is not anticipated to adversely affect, in a 
material way, any sector of the economy. In addition, the final rule is 
not likely to interfere with any action taken or planned by another 
agency or to materially alter the budgetary impact of any entitlements, 
grants, user fees, or loan programs.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of these changes on small 
entities. This rule applies to all State and local highway agencies 
that use Federal-aid highway funding in the execution of their highway 
program. The final rule emphasizes the need to consider worker and road 
user safety as an integral part of each agency's process for 
considering and managing the overall impacts due to work zones on 
Federal-aid highway projects. As noted previously, a recent synthesis 
of positive protection practices in highway work zones indicates that a 
wide range of positive protection devices and other safety treatments 
are already being used by State highway agencies. This synthesis found 
that among positive protective devices, portable concrete barriers and 
SV/TMAs were being used by nearly every State highway agency. The FHWA 
believes that positive protection devices and other safety treatments 
are also widely used by many local agencies because the FHWA's research 
indicates that local agencies usually follow State practice with 
respect to MUTCD guidance. As such, any additional usage of positive 
protection devices resulting from the proposed action would be 
incremental to what many local highway agencies are already using to 
address work zone safety. In addition, consideration of exposure 
control and other traffic control measures that would avoid or minimize 
worker exposure to motorized traffic may decrease the overall need for 
positive protection devices. Accordingly, the FHWA has determined that 
the final rule will not have a significant economic impact on a 
substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This final rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, 
March 22, 1995). This action would not result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $128.1 million or more in any one year period to 
comply with these changes. Additionally, the definition of ``Federal 
mandate'' in the Unfunded Mandate Reform Act excludes financial 
assistance of the type in which State, local or tribal governments have 
authority to adjust their participation in the program in accordance 
with changes made in the program by the Federal government. The 
Federal-aid highway program permits this type of flexibility to the 
States.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 dated August 4, 1999, and 
the FHWA has determined that this action will not have a substantial 
direct effect or sufficient federalism implications on States that 
would limit the policymaking discretion of the States and local 
governments. The FHWA has also determined that this final rule will not 
preempt any State law or State regulation or affect the States' ability 
to discharge traditional State governmental functions and does not have 
sufficient federalism implications to warrant the preparation of a 
federalism assessment. The amendments are in keeping with the Secretary 
of Transportation's authority under 23 U.S.C. 109(d), 315, and 402(a) 
to promulgate uniform guidelines to promote the safe and efficient use 
of highways.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under Executive Order 13175, 
dated November 6, 2000, and believes that it 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. The purpose of this final rule is to 
improve worker and road user safety on Federal-aid highway projects, 
and will 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 action under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. It has been determined that it is not a 
significant energy action under that order because it is not a 
significant regulatory action under Executive Order 12866 and is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, a Statement of Energy 
Effects under Executive Order 13211 is not required.

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

    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 action does not contain information collection 
requirements for purposes of the PRA.

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

Executive Order 12630 (Taking of Private Property)

    This action would not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

National Environmental Policy Act

    The agency has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has 
determined that it would not have any effect on the quality of the 
environment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory

[[Page 68489]]

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 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, 
Incorporation by reference.

    Issued on: November 29, 2007.
J. Richard Capka,
Federal Highway Administrator.

0
In consideration of the foregoing, the FHWA adds Subpart K to title 23, 
Code of Federal Regulations, Part 630, as follows:

Subpart K--Temporary Traffic Control Devices

Sec.
630.1102 Purpose.
630.1104 Definitions.
630.1106 Policy and Procedures for Work Zone Safety Management.
630.1108 Work Zone Safety Management Measures and Strategies.
630.1110 Maintenance of Temporary Traffic Control Devices.

    Authority: 23 U.S.C. 109(c) and 112; Sec. 1110 of Pub. L. 109-
59; 23 CFR 1.32; and 49 CFR 1.48(b).


Sec.  630.1102  Purpose.

    To decrease the likelihood of highway work zone fatalities and 
injuries to workers and road users by establishing minimum requirements 
and providing guidance for the use of positive protection devices 
between the work space and motorized traffic, installation and 
maintenance of temporary traffic control devices, and use of uniformed 
law enforcement officers during construction, utility, and maintenance 
operations, and by requiring contract pay items to ensure the 
availability of funds for these provisions. This subpart is applicable 
to all Federal-aid highway projects, and its application is encouraged 
on other highway projects as well.


Sec.  630.1104  Definitions.

    For the purposes of this subpart, the following definitions apply:
    Agency means a State or local highway agency or authority that 
receives Federal-aid highway funding.
    Exposure Control Measures means traffic management strategies to 
avoid work zone crashes involving workers and motorized traffic by 
eliminating or reducing traffic through the work zone, or diverting 
traffic away from the work space.
    Federal-aid Highway Project means highway construction, 
maintenance, and utility projects funded in whole or in part with 
Federal-aid funds.
    Motorized Traffic means the motorized traveling public. This term 
does not include motorized construction or maintenance vehicles and 
equipment within the work space.
    Other Traffic Control Measures means all strategies and temporary 
traffic controls other than Positive Protection Devices and Exposure 
Control Measures, but including uniformed law enforcement officers, 
used to reduce the risk of work zone crashes involving motorized 
traffic.
    Positive Protection Devices means devices that contain and/or 
redirect vehicles and meet the crashworthiness evaluation criteria 
contained in National Cooperative Highway Research Program (NCHRP) 
Report 350, Recommended Procedures for the Safety Performance 
Evaluation of Highway Features, 1993, Transportation Research Board, 
National Research Council. The Director of the Federal Register 
approves this incorporation by reference in accordance with 5 U.S.C. 
552(a) and 1 CFR part 51. This document is available for inspection and 
copying at FHWA, 1200 New Jersey Avenue, SE., Washington, DC 20590, as 
provided in 49 CFR part 7. You may also inspect a copy at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, call (202) 741 6030, or go to: 
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    Work Zone Safety Management means the entire range of traffic 
management and control and highway safety strategies and devices used 
to avoid crashes in work zones that can lead to worker and road user 
injuries and fatalities, including Positive Protection Devices, 
Exposure Control Measures, and Other Traffic Control Measures.


Sec.  630.1106  Policy and Procedures for Work Zone Safety Management.

    (a) Each agency's policy and processes, procedures, and/or guidance 
for the systematic consideration and management of work zone impacts, 
to be established in accordance with 23 CFR 630.1006, shall include the 
consideration and management of road user and worker safety on Federal-
aid highway projects. These processes, procedures, and/or guidance, to 
be developed in partnership with the FHWA, shall address the use of 
Positive Protection Devices to prevent the intrusion of motorized 
traffic into the work space and other potentially hazardous areas in 
the work zone; Exposure Control Measures to avoid or minimize worker 
exposure to motorized traffic and road user exposure to work 
activities; Other Traffic Control Measures including uniformed law 
enforcement officers to minimize work zone crashes; and the safe entry/
exit of work vehicles onto/from the travel lanes. Each of these 
strategies should be used to the extent that they are possible, 
practical, and adequate to manage work zone exposure and reduce the 
risks of crashes resulting in fatalities or injuries to workers and 
road users.
    (b) Agency processes, procedures, and/or guidance should be based 
on consideration of standards and/or guidance contained in the Manual 
on Uniform Traffic Control Devices (MUTCD) and the AASHTO Roadside 
Design Guide, as well as project characteristics and factors. The 
strategies and devices to be used may be determined by a project-
specific engineering study, or determined from agency guidelines that 
define strategies and approaches to be used based on project and 
highway characteristics and factors. The types of measures and 
strategies to be used are not mutually exclusive, and should be 
considered in combination as appropriate based on characteristics and 
factors such as those listed below:
    (1) Project scope and duration;
    (2) Anticipated traffic speeds through the work zone;
    (3) Anticipated traffic volume;
    (4) Vehicle mix;
    (5) Type of work (as related to worker exposure and crash risks);
    (6) Distance between traffic and workers, and extent of worker 
exposure;
    (7) Escape paths available for workers to avoid a vehicle intrusion 
into the work space;
    (8) Time of day (e.g., night work);
    (9) Work area restrictions (including impact on worker exposure);
    (10) Consequences from/to road users resulting from roadway 
departure;
    (11) Potential hazard to workers and road users presented by device 
itself and during device placement and removal;
    (12) Geometrics that may increase crash risks (e.g., poor sight 
distance, sharp curves);
    (13) Access to/from work space;
    (14) Roadway classification; and
    (15) Impacts on project cost and duration.
    (c) Uniformed Law Enforcement Policy. Each agency, in partnership 
with the FHWA, shall develop a policy

[[Page 68490]]

addressing the use of uniformed law enforcement on Federal-aid highway 
projects. The policy may consist of processes, procedures, and/or 
guidance. The processes, procedures, and/or guidance should address the 
following:
    (1) Basic interagency agreements between the highway agency and 
appropriate law enforcement agencies to address work zone enforcement 
needs;
    (2) Interaction between highway and law-enforcement agency during 
project planning and development;
    (3) Conditions where law enforcement involvement in work zone 
traffic control may be needed or beneficial, and criteria to determine 
the project-specific need for law enforcement;
    (4) General nature of law enforcement services to be provided, and 
procedures to determine project-specific services;
    (5) Appropriate work zone safety and mobility training for the 
officers, consistent with the training requirements in 23 CFR 
630.1008(d);
    (6) Procedures for interagency and project-level communications 
between highway agency and law enforcement personnel; and
    (7) Reimbursement agreements for law enforcement service.


Sec.  630.1108  Work Zone Safety Management Measures and Strategies.

    (a) Positive Protection Devices. The need for longitudinal traffic 
barrier and other positive protection devices shall be based on an 
engineering study. The engineering study may be used to develop 
positive protection guidelines for the agency, or to determine the 
measures to be applied on an individual project. The engineering study 
should be based on consideration of the factors and characteristics 
described in section 630.1106(b). At a minimum, positive protection 
devices shall be considered in work zone situations that place workers 
at increased risk from motorized traffic, and where positive protection 
devices offer the highest potential for increased safety for workers 
and road users, such as:
    (1) Work zones that provide workers no means of escape from 
motorized traffic (e.g., tunnels, bridges, etc.);
    (2) Long duration work zones (e.g., two weeks or more) resulting in 
substantial worker exposure to motorized traffic;
    (3) Projects with high anticipated operating speeds (e.g., 45 mph 
or greater), especially when combined with high traffic volumes;
    (4) Work operations that place workers close to travel lanes open 
to traffic; and
    (5) Roadside hazards, such as drop-offs or unfinished bridge decks, 
that will remain in place overnight or longer.
    (b) Exposure Control Measures. Exposure Control Measures should be 
considered where appropriate to avoid or minimize worker exposure to 
motorized traffic and exposure of road users to work activities, while 
also providing adequate consideration to the potential impacts on 
mobility. A wide range of measures may be appropriate for use on 
individual projects, such as:
    (1) Full road closures;
    (2) Ramp closures;
    (3) Median crossovers;
    (4) Full or partial detours or diversions;
    (5) Protection of work zone setup and removal operations using 
rolling road blocks;
    (6) Performing work at night or during off-peak periods when 
traffic volumes are lower; and
    (7) Accelerated construction techniques.
    (c) Other Traffic Control Measures. Other Traffic Control Measures 
should be given appropriate consideration for use in work zones to 
reduce work zone crashes and risks and consequences of motorized 
traffic intrusion into the work space. These measures, which are not 
mutually exclusive and should be considered in combination as 
appropriate, include a wide range of other traffic control measures 
such as:
    (1) Effective, credible signing;
    (2) Changeable message signs;
    (3) Arrow panels;
    (4) Warning flags and lights on signs;
    (5) Longitudinal and lateral buffer space;
    (6) Trained flaggers and spotters;
    (7) Enhanced flagger station setups;
    (8) Intrusion alarms;
    (9) Rumble strips;
    (10) Pace or pilot vehicle;
    (11) High quality work zone pavement markings and removal of 
misleading markings;
    (12) Channelizing device spacing reduction;
    (13) Longitudinal channelizing barricades;
    (14) Work zone speed management (including changes to the 
regulatory speed and/or variable speed limits);
    (15) Law enforcement;
    (16) Automated speed enforcement (where permitted by State/local 
laws);
    (17) Drone radar;
    (18) Worker and work vehicle/equipment visibility;
    (19) Worker training;
    (20) Public information and traveler information; and
    (21) Temporary traffic signals.
    (d) Uniformed Law Enforcement Officers. (1) A number of conditions 
may indicate the need for or benefit of uniformed law enforcement in 
work zones. The presence of a uniformed law enforcement officer and 
marked law enforcement vehicle in view of motorized traffic on a 
highway project can affect driver behavior, helping to maintain 
appropriate speeds and improve driver alertness through the work zone. 
However, such law enforcement presence is not a substitute for the 
temporary traffic control devices required by Part 6 of the MUTCD. In 
general, the need for law enforcement is greatest on projects with high 
traffic speeds and volumes, and where the work zone is expected to 
result in substantial disruption to or changes in normal traffic flow 
patterns. Specific project conditions should be examined to determine 
the need for or potential benefit of law enforcement, such as the 
following:
    (i) Frequent worker presence adjacent to high-speed traffic without 
positive protection devices;
    (ii) Traffic control setup or removal that presents significant 
risks to workers and road users;
    (iii) Complex or very short term changes in traffic patterns with 
significant potential for road user confusion or worker risk from 
traffic exposure;
    (iv) Night work operations that create substantial traffic safety 
risks for workers and road users;
    (v) Existing traffic conditions and crash histories that indicate a 
potential for substantial safety and congestion impacts related to the 
work zone activity, and that may be mitigated by improved driver 
behavior and awareness of the work zone;
    (vi) Work zone operations that require brief stoppage of all 
traffic in one or both directions;
    (vii) High-speed roadways where unexpected or sudden traffic 
queuing is anticipated, especially if the queue forms a considerable 
distance in advance of the work zone or immediately adjacent to the 
work space; and
    (viii) Other work site conditions where traffic presents a high 
risk for workers and road users, such that the risk may be reduced by 
improving road user behavior and awareness.
    (2) Costs associated with the provision of uniformed law 
enforcement to help protect workers and road users, and to maintain 
safe and efficient travel through highway work zones, are eligible for 
Federal-aid participation. Federal-aid eligibility excludes law 
enforcement activities that would normally be expected in and around 
highway problem areas requiring routine or ongoing law enforcement 
traffic control and enforcement

[[Page 68491]]

activities. Payment for the services of uniformed law enforcement in 
work zones may be included in the construction contract, or be provided 
by direct reimbursement from the highway agency to the law enforcement 
agency. When payment is included through the construction contract, the 
contractor will be responsible for reimbursing the law enforcement 
agency, and in turn will recover those costs through contract pay 
items. Direct interagency reimbursement may be made on a project-
specific basis, or on a program-wide basis that considers the overall 
level of services to be provided by the law enforcement agency. 
Contract pay items for law enforcement service may be either unit price 
or lump sum items. Unit price items should be utilized when the highway 
agency can estimate and control the quantity of law enforcement 
services required on the project. The use of lump sum payment should be 
limited to situations where the quantity of services is directly 
affected by the contractor's choice of project scheduling and chosen 
manner of staging and performing the work. Innovative payment items may 
also be considered when they offer an advantage to both the highway 
agency and the contractor. When reimbursement to the law enforcement 
agency is made by interagency transfer of funds, the highway agency 
should establish a program-level or project-level budget that is 
adequate to meet anticipated program or project needs, and include 
provisions to address unplanned needs and other contingencies.
    (e) Work Vehicles and Equipment. In addition to addressing risks to 
workers and road users from motorized traffic, the agency processes, 
procedures, and/or guidance established in accordance with 23 CFR 
630.1006 should also address safe means for work vehicles and equipment 
to enter and exit traffic lanes and for delivery of construction 
materials to the work space, based on individual project 
characteristics and factors.
    (f) Payment for Traffic Control. Consistent with the requirements 
of 23 CFR 630.1012, Project-level Procedures, project plans, 
specifications and estimates (PS&Es) shall include appropriate pay item 
provisions for implementing the project Transportation Management Plan 
(TMP), which includes a Temporary Traffic Control (TTC) plan, either 
through method or performance based specifications. Pay item provisions 
include, but are not limited to, the following:
    (1) Payment for work zone traffic control features and operations 
shall not be incidental to the contract, or included in payment for 
other items of work not related to traffic control and safety;
    (2) As a minimum, separate pay items shall be provided for major 
categories of traffic control devices, safety features, and work zone 
safety activities, including but not limited to positive protection 
devices, and uniformed law enforcement activities when funded through 
the project;
    (3) For method based specifications, the specifications and other 
PS&E documents should provide sufficient details such that the quantity 
and types of devices and the overall effort required to implement and 
maintain the TMP can be determined;
    (4) For method-based specifications, unit price pay items, lump sum 
pay items, or a combination thereof may be used;
    (5) Lump sum payment should be limited to items for which an 
estimate of the actual quantity required is provided in the PS&E or for 
items where the actual quantity required is dependent upon the 
contractor's choice of work scheduling and methodology;
    (6) For Lump Sum items, a contingency provision should be included 
such that additional payment is provided if the quantity or nature of 
the required work changes, either an increase or decrease, due to 
circumstances beyond the control of the contractor;
    (7) Unit price payment should be provided for those items over 
which the contractor has little or no control over the quantity, and no 
firm estimate of quantities is provided in the PS&Es, but over which 
the highway agency has control of the actual quantity to be required 
during the project;
    (8) Specifications should clearly indicate how placement, movement/
relocation, and maintenance of traffic control devices and safety 
features will be compensated; and
    (9) The specifications should include provisions to require and 
enforce contractor compliance with the contract provisions relative to 
implementation and maintenance of the project TMP and related traffic 
control items. Enforcement provisions may include remedies such as 
liquidated damages, work suspensions, or withholding payment for 
noncompliance.


Sec.  630.1110  Maintenance of Temporary Traffic Control Devices.

    To provide for the continued effectiveness of temporary traffic 
control devices, each agency shall develop and implement quality 
guidelines to help maintain the quality and adequacy of the temporary 
traffic control devices for the duration of the project. Agencies may 
choose to adopt existing quality guidelines such as those developed by 
the American Traffic Safety Services Association (ATSSA) or other state 
highway agencies.\1\ A level of inspection necessary to provide ongoing 
compliance with the quality guidelines shall be provided.
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    \1\ The American Traffic Safety Services Association's (ATSSA) 
Quality Guidelines for Work Zone Traffic Control Devices uses photos 
and written descriptions to help judge when a traffic control device 
has outlived its usefulness. These guidelines are available for 
purchase from ATSSA through the following URL: http://www.atssa.com/store/bc_item_detail.jsp?productId=1. Similar guidelines are 
available from various State highway agencies. The Illinois 
Department of Transportation ``Quality Standards for Work Zone 
Traffic Control Devices'' is available online at http://dot.state.il.us/workzone/wztcd2004r.pdf. The Minnesota Department of 
Transportation ``Quality Standards--Methods to determine whether the 
various traffic control devices are Acceptable, Marginal, or 
Unacceptable'' is available online at http://www.dot.state.mn.us/trafficeng/otepubl/fieldmanual2007/FM-2007-QualityStandards.pdf.

[FR Doc. E7-23581 Filed 12-4-07; 8:45 am]
BILLING CODE 4910-22-P