[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