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1 November 2006
[Federal Register: November 1, 2006 (Volume 71, Number 211)]
[Proposed Rules]
[Page 64173-64181]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01no06-27]
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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: Notice of proposed rulemaking; request for comments.
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SUMMARY: The FHWA proposes to supplement its regulation that governs
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. The proposed changes are intended to decrease
the likelihood of fatalities and injuries to workers who are exposed to
motorized traffic (vehicles using the highway for purposes of travel)
while working on Federal-aid highway projects. This proposal is in
response to section 1110 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law
109-59, 119 Stat. 1227.
DATES: Comments must be received on or before January 2, 2007.
ADDRESSES: Mail or hand deliver comments to the U.S. Department of
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh
Street, SW., Washington, DC 20590, or submit electronically at http://dmses.dot.gov/submit
or fax comments to (202) 493-2251. Alternatively,
comments may be submitted via the Federal eRulemaking Portal at http://www.regulations.gov.
All comments should include the docket number that
appears in the heading of this document. All comments received will be
available for examination at the above address from 9 a.m. to 5 p.m.
e.t., Monday through Friday, except Federal holidays. Those desiring
notification of receipt of comments must include a self-addressed,
stamped postcard or print the acknowledgement page that appears after
submitting comments electronically. Anyone is able to search the
electronic form of all comments received into any of our dockets by the
name of the individual submitting the comment (or signing the comment,
if submitted on behalf of an association, business, labor union, etc.).
Persons making comments may review DOT's complete Privacy Act Statement
in the Federal Register published on April 11, 2000 (Volume 65, Number
70, Pages 19477-78) or may visit http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Mr. Chung Eng, Office of
Transportation Operations, (202) 366-8043; or Mr. Raymond W. Cuprill,
Office of the Chief Counsel, (202) 366-0791, U.S. Department of
Transportation, Federal Highway Administration, 400 Seventh Street,
SW., 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 and Filing
You may submit or retrieve comments online through the Document
Management System (DMS) at: http://dmses.dot.gov/submit. The DMS is
available 24 hours each day, 365 days each year. Electronic submission
and retrieval help and guidelines are available under the help section
of the Web site.
An electronic copy of this document may also be downloaded 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://
http://www.access.gpo.gov/nara.
Background
Increasingly, maintenance and reconstruction of the nation's
highways are taking place while traffic is maintained on the facility
under repair. This has resulted in an increase in the exposure of
workers to high-speed traffic and a corresponding increase in the risk
of injury or death for highway workers, adding to worker safety
concerns within an industry where the fatality rate for highway
construction workers is already more than double that of other
construction workers.\1\
[[Page 64174]]
Over the last ten years, the number of fatalities in work zones has
risen from 789 in 1995 to 1,068 in 2004.\2\ Of the 1,068 fatalities in
2004, 89 percent, or 953 were either motorists or passengers. On
average, more than 100 workers are killed and over 20,000 are injured
each year in the highway and street construction industry.\3\ According
to the National Institute for Occupational Safety and Health, 55
percent of the work related fatalities in the U.S. highway construction
industry between 1992 and 1998 were vehicle or equipment related
incidents that occurred in a work zone. This same source indicated that
highway worker fatalities where a worker on foot was struck by a
vehicle were about equally likely to have been struck by a passing
traffic vehicle versus a construction vehicle. Overall, highway worker
safety represents a small but important and increasing part of the work
zone safety problem.
---------------------------------------------------------------------------
\1\ Road Construction Hazards Fact Sheet--Laborers' Health and
Safety Fund of North America, Washington, DC. It is available at the
following URL: http://wzsafety.[fxsp0]tamu.edu/files/factsheet.stm.
\2\ Fatality Analysis Reporting System (FARS) maintained by the
National Highway Traffic Safety Administration (NHTSA) and is
available at the following URL: http://www.fars.nhtsa.dot.gov/.
\3\ Department of Health and Human Services (DHHS), National
Institute for Occupational Safety and Health (NIOSH) Publication No.
2001-128; Building Safer Highway Work Zones: Measures to Prevent
Worker Injuries from Vehicles and Equipment. It is available at the
following URL: http://www.[fxsp0]cdc.[fxsp0]gov/niosh/2001128.html.
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Recognizing the growing concerns associated with injuries to
workers resulting from work space intrusion crashes, the FHWA convened
a task force of representatives from the highway industry in 2002 to
further explore these concerns. This collaboration led to the
publication of a brochure in 2003 that introduces the concept of
positive protection as one approach to reducing injuries to workers and
motorists.\4\ The brochure recommended a three-step process to help
reduce fatalities from intrusion crashes: (1) Increase awareness of the
problem and the benefits of using positive protection by distributing
the brochure; (2) synthesize available ``good practices'' information,
including potential benefits, based on existing guidelines, practices,
and safety data from individual agencies; and (3) initiate research to
develop standardized guidelines for when to use positive protection in
work zones. To date, steps one and two have been completed, and limited
research has begun.
---------------------------------------------------------------------------
\4\ Federal Highway Administration (FHWA) Brochure on Positive
Protection: Reducing Risk, Protecting Workers and Motorists. This
brochure can be obtained from the AASHTO Bookstore through the
following URL: https://bookstore.transportation.org/Item_details.aspx?id=247
.
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The synthesis, entitled ``Positive Protection Practices in Highway
Work Zones'' and carried out as project 2-7(174) under the National
Cooperative Highway Research Program (NCHRP), was completed in June
2005.\5\ The synthesis indicated that while there have been numerous
studies addressing the overall frequency and severity of work zone
crashes, available information on work zone intrusion crashes and
worker injuries remains very limited. Limited data available from two
States indicate that intrusion crashes accounted for approximately 9
percent of all work zone crashes; 7 percent of fatal work zone crashes;
and 8 percent of the fatal and serious injuries combined. This data
also indicated that worker fatalities accounted for approximately 15
percent of fatal work zone intrusion crashes. While these numbers are
relatively small, they represent an important component of the work
zone safety picture. The synthesis found that because of the growing
concern with work zone safety, State highway agencies are using a wide
range of positive protection devices and other safety treatments.
However, temporary barrier placement decisions were generally made on a
case-by-case basis, and while worker safety is sometimes considered, no
specific guidance on this subject was found.
---------------------------------------------------------------------------
\5\ 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.
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Where positive protection is used, the portable concrete barrier
was found to be the temporary barrier most widely used by highway
agencies. In fact, it was found to be used to some extent by nearly
every State highway agency. In spite of this, the review found that
there are few specific situations where agencies require the use of
portable concrete barriers in work zones, and these situations are
limited almost exclusively to the protection of motorists from drop-
offs, opposing traffic, and work space hazards rather than for the
protection of workers. In current practice, the decision on portable
concrete barrier use typically includes some element of engineering
judgement or analysis.
In addition to portable concrete barriers, the synthesis review
found that the combination of shadow vehicles equipped with truck
mounted attenuators (SV/TMA) is also widely used by highway agencies.
Information on their use was located for all but 11 States. While
worker exposure is not frequently mentioned as a specific factor to be
considered in the use of SV/TMAs, it is frequently considered
indirectly based on the type of work operations and the overall
characteristics of the roadways and work zones where agencies recommend
its use. The overwhelming commonality in the use of SV/TMAs was found
to be for moving and mobile operations, and work zones of short
duration. In addition to specific factors to be considered, the
decision on SV/TMA use also includes some elements of engineering
judgement or analysis on occasion.
Besides portable concrete barriers and SV/TMAs, several other types
of positive protection devices were also found to be in use by some
State highway agencies, although to a much lesser extent. These include
moveable concrete barriers, water-filled barriers, temporary
guardrails, arrestor nets, and finally, a highly mobile longitudinal
barrier that is characterized as an emerging technology.
The synthesis found that positive protection is generally
considered by the State highway agencies to be very effective in
improving work zone safety, particularly where workers are concerned.
This was supported by limited crash data identified in the synthesis
that clearly show TMAs as being highly effective in stopping errant
vehicles with relatively few serious injuries to occupants of the
impacting vehicles or the shadow vehicle driver. Limited crash data was
also found confirming that portable concrete barriers are highly
effective in terms of preventing intrusions into the work space or
other hazardous areas.
The synthesis concluded that while positive protection provides a
highly effective means of protecting workers and road users from risks
associated with work space intrusions, this technique is not feasible
or practical for all work zone situations. Based on serious and fatal
injuries to vehicle occupants resulting from a number of crashes
involving portable concrete barriers, it was recommended that these
barriers should always be installed according to accepted design
guidelines and only where needed to shield work zone hazards.
While the primary focus of the synthesis was on positive
protection, the author also looked at other measures that are being
used to reduce exposure and reduce intrusion risks. The synthesis found
that the combined use of various measures involving other than positive
means to reduce worker exposure or reduce intrusion risks, particularly
police enforcement and
[[Page 64175]]
reduced work zone speed limits, may be more common than positive
protective measures. Common usage of police in work zones to help
enhance safety is supported by findings from a 2001 FHWA study
indicating that a majority of States use uniformed police officers in
at least some work zones where there are particular safety concerns.\6\
However, this study also identified a number of key issues related to
the use of police officers in work zones and provided several policy
recommendations that would help improve the process as follows:
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\6\ FHWA Study on the Use of Uniformed Police Officers on
Federal-aid High Construction Projects, October 2001. This document
can be found at the following URL: http://safety.
[fxsp0]fhwa.dot.[fxsp0]gov/wz/nwzaw/toc.htm.
---------------------------------------------------------------------------
1. State transportation agencies using Federal-aid funds to assign
uniformed police officers to highway work zones should coordinate with
State law enforcement agencies to develop written policies and
guidelines addressing the following:
a. Situations where uniformed police officers are recommended;
b. The work zone traffic control planning process; and
c. Officer pay, work procedures supervision, etc.
2. Police officers assigned to federally funded highway work zones
should receive training on the requirements contained in the Manual on
Uniform Traffic Control Devices (MUTCD).\7\
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\7\ The Manual on Uniform Traffic Control Devices (MUTCD) is the
national standard for all traffic control devices installed on any
street, highway, or bicycle trail open to public travel. It can be
found at the following URL: http://mutcd.[fxsp0]fhwa.dot.[fxsp0]gov/
index.htm.
---------------------------------------------------------------------------
3. Agencies are encouraged to gather data on traffic safety
incidents at federally funded highway work zones to better assess the
effectiveness of work zone traffic control techniques.
4. In addition to uniformed police officers, agencies should also
consider using new traffic control technologies such as automated
enforcement and intrusion alarms to improve safety at highway work
zones.
Related research that is currently under way includes the
following:
1. National Cooperative Highway Research Program (NCHRP) study on
the Design of Construction Work Zones on High-Speed Highways (Study
details and status can be found at the following URL: http://www4.
[fxsp0]trb.org/trb/crp.[fxsp0]nsf/All+Projects/NCHRP+3-69); and
2. NCHRP study on Traffic Enforcement Strategies in Work Zones
(Study details and status can be found at the following URL: http://www4.
[fxsp0]nationalacademies.[fxsp0]org/trb/crp.nsf/All+Projects/
NCHRP+3-80).
This research is expected to yield additional design guidance that
can be used to supplement what currently exists in the MUTCD and the
American Association of State Highway and Transportation Officials
(AASHTO) Roadside Design Guide.\8\
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\8\ The American Association of State Highway and Transportation
Officials (AASHTO) Roadside Design Guide presents a synthesis of
current information and operating practices related to roadside
safety and is intended for use as a resource document from which
individual highway agencies can develop standards and policies. It
can be purchased from AASHTO thru the following URL: https://bookstore.transportation.org/item_details.aspx?ID=148
.
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Legislation
Section 1110 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Public Law
109-59; August 10, 2005), directed the Secretary of Transportation to
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.
The FHWA is proposing to add a new subpart K to part 630 in title
23, Code of Federal Regulations (CFR) to implement this statutory
requirement. The FHWA is proposing to emphasize the need to
appropriately consider and manage worker safety by establishing
conditions under which consideration for the appropriate use of, and
expenditure of funds for, uniformed law enforcement officers, and
positive protective measures between workers and motorized traffic
would be required on all Federal-aid highway projects.
Section-by-Section Discussion of Proposed Rule
The FHWA proposes 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 proposes to require
that each agency's policy for the systematic consideration and
management of work zone impacts, to be established in accordance with
the recently updated 23 CFR part 630 subpart J (effective October 12,
2007), 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.
This proposed rule would require that each agency develop and
implement procedures for considering the need for positive protective
measures between workers and motorized traffic; and a policy addressing
the use of uniformed law enforcement on Federal-aid projects. The
proposed subpart K would also require that each agency develop and
implement quality standards for work zone traffic control devices to
help ensure that the quality and adequacy of temporary traffic control
devices on construction, utility, and maintenance operations is
maintained for the project duration.
Section 630.1102 Purpose
This section would explain that the FHWA is taking this action to
establish requirements and provide guidance for addressing worker
exposure and risk from motorized traffic in order to decrease the
likelihood of fatalities or injuries to workers who are exposed to
motorized traffic while working on Federal-aid highway projects.
By emphasizing worker safety, the proposed rule would attempt to
enhance the safety of both the motorist and worker during the project.
Section 630.1104 Definitions
This section would provide six definitions to assist in the proper
understanding of the proposed rule.
A definition of ``agency'' would be provided to clarify that the
term includes State and local highway agencies that receive Federal-aid
highway funding.
A definition of ``Federal-aid highway project'' would be provided
to clarify that the term includes construction, maintenance, and
utility projects that are funded in whole or in part with Federal-aid
highway funds.
[[Page 64176]]
A definition of ``intrusion countermeasures'' would be provided to
differentiate between positive protective measures and other than
positive protective measures.
A definition of ``motorized traffic'' would be provided to
differentiate between the motorized traveling public versus motorized
construction traffic.
A definition of ``positive protective measures'' would be included
because the term is defined in section 1110 of SAFETEA-LU. This
definition of positive protective measures would be further refined to
differentiate between ``positive protective devices'' and ``positive
protective strategies.''
``Positive protective devices'' would be defined as devices that
contain and redirect vehicles and meet the crashworthiness evaluation
criteria contained in National Cooperative Highway Research Program
(NCHRP) report 350.\9\
---------------------------------------------------------------------------
\9\ Transportation Research Board (TRB), National Cooperative
Highway Research Program (NCHRP) Report 350, Recommended Procedures
for the Safety Performance Evaluation of Highway Features. This
document is available at the following URL: http://onlinepubs.
[fxsp0]trb.[fxsp0]org/onlinepubs/nchrp/nchrp--rpt--350-
a.[fxsp0]pdf.
---------------------------------------------------------------------------
``Positive protective strategies'' would be defined as traffic
management strategies that would help avoid crashes involving workers
and motorized traffic by eliminating or diverting traffic from the
vicinity of the activity area. Such strategies would include the use of
full road closures, detours, crossovers, and ramp/interchange closures.
Section 630.1106 Positive Protective Measures
This section would require that each agency's policy for the
systematic consideration and management of work zone impacts, to be
established in accordance with the recently updated 23 CFR part 630
subpart J, address the consideration and management of worker safety as
part of the overall work zone safety analysis on Federal-aid highway
projects. To implement this aspect of the policy, the agency would need
to develop procedures that begin with the consideration of positive
protective strategies that would avoid or minimize worker exposure to
motorized traffic including, but not limited to, full road closures,
ramp closures, crossovers, detours, and rolling road blocks during work
zone setup and removal. Where the application of positive protective
strategies is not possible, practical or adequate to manage exposure,
the procedures would consider the use of appropriate positive
protective devices, basing need on the project characteristics, the
MUTCD, the AASHTO Roadside Design Guide, and factors including, but not
limited to, the following:
Project exposure and duration;
Traffic speed;
Traffic volume;
Distance between traffic and workers;
Geometrics (that adversely impact exposure--e.g., poor
sight distance, sharp curves);
Vehicle mix;
Type of work (as related to worker exposure);
Time of day (e.g., night work);
Roadway classification;
Consequences from/to motorists resulting from roadway
departure;
Potential hazard to traffic presented by device itself,
and to workers and traffic during device placement;
Access to/from work zone; and
Work area restrictions (including impact on worker
exposure).
No Escape Routes--The FHWA proposes that at a minimum, positive
protective measures shall be required to separate workers from
motorized traffic in all work zones conducted under traffic in areas
that offer workers no means of escape (e.g., tunnels, bridges, etc.),
unless an engineering analysis determines otherwise. Work zones
involving no escape areas generally present a higher level of risk for
workers and therefore justify special consideration for applying
positive protective measures. Rather than the typical approach of
determining the need for positive protective measures based on an
engineering analysis, the proposed language would emphasize the need to
appropriately assess work zones involving no escape areas by requiring
that positive protective measures be applied unless an engineering
analysis determines that this would not be necessary or feasible based
on other project characteristics.
The FHWA also proposes that the following minimum criteria for
positive protective devices shall apply:
Temporary Longitudinal Traffic Barriers--Temporary longitudinal
traffic barriers would be required to protect workers in stationary
work zones lasting 2 weeks or more when the project design speed is 45
mph or greater, and the nature of the work requires workers to be less
than a lane-width from the edge of an open travel lane, unless an
engineering analysis determines otherwise.
While available information on work zone intrusion crashes and
worker injuries is limited, there are two especially critical
conditions where common sense would indicate a strong need for
consideration of temporary longitudinal traffic barriers. The first is
speed, specifically, speeds that are 45 mph or greater. Of the 1,068
highway fatalities in 2004 that occurred in work zones, 888, or 83
percent, occurred where the speed limit was 45 mph or greater.\10\ The
second is the proximity of workers to live traffic. In the presence of
speeds of 45 mph and greater, common sense would indicate that workers
within a lane-width of a live travel lane would be at high risk in
terms of exposure, particularly in light of the many distractions that
the average driver faces on a daily basis. A national survey of more
than 4,000 drivers in 2002 showed that about 14 percent of drivers that
have been involved in a crash in the past 5 years attribute the crash
to their being distracted at the time.\11\ This projects to an
estimated 7.2 million distracted driver crashes over a 5 year period.
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\10\ Fatality Analysis Reporting System (FARS) maintained by the
National Highway Traffic Safety Administration (NHTSA) and is
available at the following URL: http://www-fars.nhtsa.dot.gov/.
\11\ Findings Report for National Survey of Distracted and
Drowsy Driving Attitudes and Behaviors: 2002 submitted to NHTSA
March 2003. The report can be found at the following URL: http://www.
[fxsp0]nhtsa.dot.[fxsp0]gov/people/injury/drowsy--driving1/
survey-distractive03/index.htm.
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In addition to the critical conditions described, a determination
of whether or not to use temporary longitudinal traffic barriers must
also consider the work zone duration. The act of placing, relocating,
and removing the barriers themselves poses a risk to the workers
involved, as well as to the motorists. By their nature, temporary
longitudinal traffic barriers tend to be heavy, bulky and time
consuming to maneuver. While there is no data pointing to a specific
duration as being an ideal ``tipping point'', the previously cited
synthesis on Positive Protection Practices in Highway Work Zones
indicates that three States specified a threshold value, all of which
were two weeks or more, as one factor in considering the need for
temporary longitudinal traffic barriers.
While the preceding are considered to be a critical combination of
characteristics, the FHWA recognizes that consideration of other
factors and project characteristics as part of an engineering analysis
may determine the best solution to be something other than temporary
longitudinal traffic barriers. Similar to the proposed approach for
addressing work zones involving no escape areas, the intent is to
emphasize the need to appropriately assess work zones with the
specified critical combination of characteristics by requiring that
temporary longitudinal
[[Page 64177]]
traffic barriers be applied unless an engineering analysis determines
that this would not be necessary or feasible based on other project
characteristics.
Shadow Vehicles and Truck Mounted Attenuators--The FHWA proposes
that the determination of need and the priorities for application of
protective shadow vehicles and truck-mounted attenuators shall be
consistent with the guidance included in chapter 9 of the AASHTO
Roadside Design Guide. The AASHTO Roadside Design Guide is a widely
recognized document that is intended for use as a resource from which
individual highway agencies can develop standards and policies, making
modifications to fit local conditions as appropriate. The guidance in
chapter 9 includes suggested priorities for the application of
protective vehicles and truck mounted attenuators that appear to be
very well thought out. Accordingly, the FHWA is proposing that these
suggested priorities serve as the basis upon which decisions on need
are made.
Other Requirements--When positive protective devices are required
by an agency, the FHWA proposes to require that these devices shall be
paid for on a unit pay basis, unless doing so would create a conflict
with innovative contracting approaches such as design-build or some
performance based contracts where the contractor is paid to assume a
certain risk allocation, and payment is generally made on a lump sum
basis.
The application of specific positive protective devices would be
required to be in accordance with the work zone hardware
recommendations in Chapter 9 of the AASHTO Roadside Design Guide:
Traffic Barriers, Traffic Control Devices, and Other Safety Features
for Work Zones' 2002, which is incorporated by reference into 23 CFR
630.1012(b)(1) in accordance with 5 U.S.C. 552(a) and 1 CFR part 51,
effective October 12, 2007, and is on file at the National Archives and
Record Administration (NARA). For information on the availability of
this material at NARA, call (202) 741-6030, or go to http://www.
[fxsp0]archives.gov/federal--register/code--of--federal
regulations/ibr--locations.html. The entire document is available for
purchase from the American Association of State Highway and
Transportation Officials (AASHTO), 444 North Capitol Street, NW., Suite
249, Washington, DC 2001 or thru the following URL: https://bookstore.
[fxsp0]transportation.org/item--details.aspx?ID=148.
Section 630.1108 Intrusion Countermeasures
This section would promote the consideration and use of other than
positive protective measures to reduce the risk of motorized traffic
intrusion into the work space where the provision of positive
protective measures is not adequate, possible or practical. A wide
range of motorized traffic intrusion countermeasures would be suggested
for consideration including, but not limited to the following:
Effective, credible signing;
Variable message signs;
Arrow boards;
Warning flags and lights on signs;
Longitudinal and lateral buffer space;
Trained flaggers and spotters;
Enhanced flagger station setups;
Intrusion alarms;
Rumble strips;
Pace or pilot vehicle;
High quality work zone pavement markings and removal of
misleading markings;
Channelizing device spacing reduction;
Longitudinal channelizing barricades;
Work zone speed limit reduction;
Law enforcement;
Automated speed enforcement (where permitted by State/
local laws);
Drone radar;
Worker and work vehicle/equipment visibility; and
Worker training.
It would be noted that these countermeasures are not mutually
exclusive and should be considered in combination as appropriate.
This section would specifically recognize that the countermeasure
of using uniformed law enforcement officers to maintain an appropriate
speed through work zones is a common practice in many States. Law
enforcement presence in work zones is generally recognized as an
element that helps enhance safety.\12\ The presence of a uniformed law
enforcement officer and marked law enforcement vehicle in view of the
traveling public on a highway project can affect driver behavior,
helping to maintain the appropriate speeds and increasing driver
awareness through the work zone. This is particularly important given
the large number of distracted driver crashes cited previously, and
that almost one out of every three traffic fatalities have been found
to be related to speeding.\13\
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\12\ FHWA Study on the Use of Uniformed Police Officers on
Federal-aid Highway Construction Projects, October 2001. This
document can be found at the following URL: http://safety.
[fxsp0]fhwa.dot.gov/wz/nwzaw/toc.htm.
\13\ FHWA Safety Facts Flyer, which can be found at the
following URL: http://ntl.[fxsp0]bts.[fxsp0]gov/lib/23000/23100/
23121/12SpeedCountsNumbers.pdf.
---------------------------------------------------------------------------
This section would suggest conditions that should be considered in
determining the need for uniformed law enforcement presence in work
zones. These include, but are not limited to, the following:
Operations occurring on high speed, high volume facilities
where workers on foot are exposed to traffic;
Operations, including temporary traffic control device
set-up and removal, that occur closely adjacent to traffic without
positive protection;
Operations that require temporary or frequent shifts in
traffic patterns;
Night operations that may cause special concerns;
Locations where traffic conditions and crash history
indicate substantial problems may be encountered during the project;
Operations that require brief closure of all lanes in one
or both directions;
Operations where traffic queuing is expected; and
Other work sites where traffic conditions present a high
risk for workers and the traveling public.
While full-time uniformed law enforcement presence in every work
zone is not a reasonable expectation, policies that result in an
increased driver expectancy for encountering law enforcement officers
in work zones should help improve safety. This may be achieved through
a combination of active enforcement (issuing citations) at selected
work zones, law enforcement presence during high-risk activities, and
occasional law enforcement presence at all major work zones. The
previously cited FHWA study on the use of uniformed police officers
recognized that a majority of States already use uniformed police
officers in at least some work zones. However, this study also
identified a number of issues that hinder more widespread and
consistent use of uniformed police officers in work zones including:
Some agencies had no policies regarding the use of
officers;
Where policies existed, they vary widely regarding the
circumstances where officers are used;
A majority of the agencies did not have a training program
for officers assigned to work zones;
It was not clear whether police officers were familiar
with the MUTCD in all cases;
Chain of command varied widely;
[[Page 64178]]
Conflicts exist between an officer's routine mission
versus work zone duties;
Nearly half of the agencies do not include the police when
planning a project;
Funding is not always available when officers are needed;
and
Officers are not always available when needed.
To address these issues, this section would require that each
agency, in cooperation with the FHWA, develop a policy, or update an
existing policy where appropriate, to address the use of uniformed law
enforcement on work zone operations occurring on Federal-aid highways.
The policy would address the following:
1. Law enforcement involvement during major project planning and
development;
2. Situations where uniformed law enforcement officers are
recommended;
3. Duties/expectations of the officers (and how they differ
according to different situations);
4. Active enforcement versus presence;
5. Appropriate work zone safety and mobility training for the
officers;
6. Communications and chain of command; and
7. Officer pay.
This section would emphasize that when uniformed law enforcement
officers are used, they are to be used as a supplement to, and not a
replacement for, temporary traffic control devices required by the
MUTCD. The conditions regarding Federal-aid eligibility for using
uniformed law enforcement officers would be clarified in this section.
This section would also address the issue of funding shortfalls where
payment for officers is part of an agency-wide program budget by
requiring appropriate consideration of anticipated projects to more
accurately estimate budget needs, and the establishment of contingency
provisions to provide for instances when the initial budget proves
insufficient.
Section 630.1110 Installation and Maintenance of Temporary Traffic
Control Devices
The focus of this section would be to ensure that the proper
temporary traffic control devices are installed and adequately
maintained throughout the life of the project. Part 6 of the MUTCD
includes requirements for temporary traffic control. The recently
updated regulation in 23 CFR part 630 subpart J will require the
development of a Temporary Traffic Control plan, in accordance with
Part 6 of the MUTCD, as a component of a broader Transportation
Management Plan (TMP) in order to facilitate the continuity of
reasonably safe and efficient road user flow and highway worker safety
when a work zone is necessary. Subpart J will also require that both
the agency and the contractor each designate a trained person at the
project level with the responsibility for implementing the TMP.
Typically, the installation and maintenance of temporary traffic
control devices are both part of a basic contract item such as
``traffic control and protection,'' or ``protection and maintenance of
traffic.'' Such items generally also cover maintenance. Requiring a
separate pay item for the installation and maintenance of temporary
traffic control devices would not be substantially different from
current practice. The FHWA believes that section 1110 of SAFETEA-LU
advocates a requirement that each agency develop and adopt a quality
standard to help maintain the quality and adequacy of the temporary
traffic control devices for the duration of the project.
The FHWA proposes to emphasize the maintenance aspect to ensure
that quality is sustained throughout the life of the project by
requiring that each agency develop and implement a quality standard to
help maintain the quality and adequacy of the temporary traffic control
devices for the duration of the project. Some agencies are already
doing this, either by developing a variation of, or through direct
reference to quality guidelines for work zone traffic control devices
such as those developed by the American Traffic Safety Services
Association (ATSSA).\14\ This section would also require that there be
an appropriate level of inspection to assure compliance with the
quality standards.
---------------------------------------------------------------------------
\14\ 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.
[fxsp0]atssa.[fxsp0]com/store/bc--item--detail.jsp?productId=1.
---------------------------------------------------------------------------
Compliance Date
The FHWA proposes to establish a compliance date of October 12,
2008, for subpart K. Subpart K is proposed as a supplement to subpart
J, which governs work zone safety and mobility in highway and street
work zones, and has an effective date of October 12, 2007. Since
subpart K is tied to the specific components of Subpart J, the proposed
compliance date for subpart K would provide one year from the effective
date of subpart J to implement the proposed requirements through
revisions and/or additions to elements developed under subpart J.
National Congestion Initiative
The proposed rule includes measures that could further the goals of
the Secretary of Transportation's new National Strategy to Reduce
Congestion on America's Transportation Network, announced on May 16,
2006.\15\ By requiring the development and implementation of a standard
to help maintain the quality and adequacy of temporary traffic control
devices on Federal-aid highway projects, we anticipate that the
proposed rule will help reduce congestion by assuring that motorists
are always provided with positive guidance while traveling through work
zones.
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\15\ Speaking before the National Retail Federation's annual
conference on May 16, 2006, in Washington, DC, 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.[fxsp0]dot.[fxsp0]gov/affairs/minetasp051606.htm.
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Rulemaking Analysis and Notices
All comments received on or before the close of business on the
comment closing date indicated above will be considered and will be
available for examination in the docket at the above address. Comments
received after the comment closing date will be filed in the docket and
will be considered to the extent practicable, but the FHWA may issue a
final rule at any time after the close of the comment period. In
addition to late comments, the FHWA will also continue to file in the
docket relevant information that becomes available after the comment
closing date, and interested persons should continue to examine the
docket for new material.
Executive Order 12866 (Regulatory Planning and Review) and U.S. DOT
Regulatory Policies and Procedures
The FHWA has determined preliminarily 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 protective devices and other safety treatments
are already being used by
[[Page 64179]]
State highway agencies.\16\ This synthesis found that among positive
protective devices, portable concrete barriers and SV/TMAs were being
used by nearly every State highway agency. The proposed regulatory
action would emphasize the need to consider worker 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 protective 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,
the emphasis on first considering strategies that would avoid or
minimize worker exposure to motorized traffic may decrease the overall
need for positive protective devices. Accordingly, it is anticipated
that the economic impact of this rulemaking would be minimal.
---------------------------------------------------------------------------
\16\ 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.
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The proposed action is not anticipated to adversely affect, in a
material way, any sector of the economy. In addition, the proposed
action 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.
Based on the information received in response to this NPRM, the
FHWA intends to carefully consider the costs and benefits associated
with this rulemaking. Accordingly, comments, information, and data are
solicited on the economic impact of the changes described in this
document or any alternative proposal submitted.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of these proposed 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 proposed regulatory action would emphasize the
need to consider worker 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 protective 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 protective 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 protective 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,
the emphasis on first considering strategies that would avoid or
minimize worker exposure to motorized traffic may decrease the overall
need for positive protective devices. Accordingly, the FHWA has
determined that the proposed regulation would not have a significant
economic impact on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This notice of proposed rulemaking would not impose unfunded
mandates as defined by the Unfunded Mandates Reform Act of 1995 (Public
Law 104-4, 109 Stat. 48, March 22, 1995). This proposed 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 proposed action would 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 proposed
rulemaking would 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 proposed
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 proposed action under Executive Order
13175, dated November 6, 2000, and believes that it would not have
substantial direct effects on one or more Indian tribes; would not
impose substantial direct compliance costs on Indian tribal
governments; and would not preempt tribal law. The purpose of this
proposed rule is to improve worker safety on Federal-aid highway
projects, and would not impose any direct compliance requirements on
Indian tribal governments and will not have any economic or other
impacts on the viability of Indian tribes. Therefore, a tribal summary
impact statement is not required.
Executive Order 13211 (Energy Effects)
The FHWA has analyzed this proposed action under Executive Order
13211, Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use. 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 proposed action does not contain collection
[[Page 64180]]
information requirements for purposes of the PRA.
Executive Order 12988 (Civil Justice Reform)
This proposed action meets applicable standards in Sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
The FHWA has analyzed this proposed action under Executive Order
13045, Protection of Children from Environmental Health Risks and
Safety Risks. The FHWA certifies that this proposed action would not
cause an environmental risk to health or safety that may
disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This proposed 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 proposed 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 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.
Issued on: October 25, 2006.
J. Richard Capka,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to add 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 Positive Protective Measures.
630.1108 Intrusion Countermeasures.
630.1110 Installation and 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).
Subpart K--Temporary Traffic Control Devices
Sec. 630.1102 Purpose.
To establish requirements and provide guidance for addressing
worker safety by limiting the exposure and risk from motorized traffic
in order to decrease the likelihood of fatalities or injuries to
workers on Federal-aid highway projects. This subpart is applicable to
all State and local highway agencies that receive Federal-aid highway
funding.
Sec. 630.1104 Definitions.
For the purposes of this subpart, the following definitions apply:
Agency means a State or local highway agency that receives Federal-
aid highway funding.
Federal-aid Highway Project means highway construction,
maintenance, and utility projects funded in whole or in part with
Federal-aid funds.
Intrusion Countermeasures means strategies involving the use of
other than positive protective measures to reduce the likelihood of
motorized traffic intrusion into the work space.
Motorized Traffic means the motorized traveling public. This term
does not include motorized construction or maintenance traffic.
Positive Protective Devices means the devices that contain and
redirect vehicles and meet the crashworthiness evaluation criteria
contained in NCHRP report 350.
Positive Protective Measures means the positive protective devices
and positive protective strategies used to avoid motorized traffic
crashes in work zones that can lead to worker injuries and fatalities
through work space intrusions.
Positive Protective Strategies means the traffic management
strategies that would help avoid crashes involving workers and
motorized traffic by eliminating or diverting traffic from the vicinity
of the activity area.
Sec. 630.1106 Positive Protective Measures.
(a) Each agency's policy 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
highway worker safety on Federal-aid highway projects. These procedures
should begin with the consideration of positive protective strategies
that would avoid or minimize worker exposure to motorized traffic
including, but not limited to, full road closures; ramp closures;
crossovers; detours; and rolling road blocks during work zone setup and
removal. Where these strategies are not possible, practical, or
adequate to manage exposure, the procedures shall consider the use of
appropriate positive protective devices, basing need on the project
characteristics, the MUTCD, chapter 9 of the AASHTO Roadside Design
Guide, and factors including, but not limited to, the following:
(1) Project exposure and duration;
(2) Traffic speed;
(3) Traffic volume;
(4) Distance between traffic and workers;
(5) Geometrics (that adversely impact exposure--e.g., poor sight
distance, sharp curves);
(6) Vehicle mix;
(7) Type of work (as related to worker exposure);
(8) Time of day (e.g., night work);
(9) Roadway classification;
(10) Consequences from/to motorists resulting from roadway
departure;
(11) Potential hazard to traffic presented by device itself, and to
workers and traffic during device placement;
(12) Access to/from work zone; and
(13) Work area restrictions (including impact on worker exposure).
(b) At a minimum, positive protective measures shall be required to
separate workers from motorized traffic in all work zones conducted
under traffic in areas that offer workers no means of escape (e.g.,
tunnels, bridges, etc.) unless an engineering analysis determines
otherwise. In addition, the following minimum criteria for positive
protective devices shall apply:
(1) Temporary longitudinal traffic barriers shall be used to
protect workers in stationary work zones lasting two weeks or more when
the project design speed is 45 mph or greater, and the nature of the
work requires workers to be within one lane-width from the edge of a
live travel lane, unless an engineering analysis determines otherwise.
(2) The determination of need and the priorities for application of
protective shadow vehicles and truck-mounted attenuators shall be
consistent with the guidance included in chapter 9 of the AASHTO
Roadside Design Guide.
[[Page 64181]]
(c) When positive protective devices are necessary, these devices
shall be paid for on a unit pay basis, unless doing so would create a
conflict with innovative contracting approaches such as design-build or
some performance based contracts where the contractor is paid to assume
a certain risk allocation, and payment is generally made on a lump sum
basis. Application of specific positive protective devices shall be in
accordance with chapter 9 of the AASHTO Roadside Design Guide.
Sec. 630.1108 Intrusion Countermeasures.
(a) In situations where the provision of positive protective
measures is not adequate, possible or practical, appropriate
consideration should be given to the use of intrusion countermeasures
to reduce the risk of motorized traffic intrusion into the work space.
These countermeasures are not mutually exclusive and should be
considered in combination as appropriate. A wide range of motorized
traffic intrusion countermeasures should be considered including, but
not limited to:
(1) Effective, credible signing;
(2) Variable message signs;
(3) Arrow boards;
(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 limit reduction;
(15) Law enforcement;
(16) Automated speed enforcement (where permitted by State/local
laws);
(17) Drone radar;
(18) Worker and work vehicle/equipment visibility; and
(19) Worker training.
(b) Among the intrusion countermeasures, uniformed law enforcement
presence in work zones is generally recognized as an element that
enhances safety. The presence of a uniformed law enforcement officer
and marked law enforcement vehicle in view of the motorized traffic on
a highway project can affect driver behavior, helping to maintain
appropriate speeds and increase driver awareness through the work zone.
Conditions that should be considered in determining the need for
uniformed law enforcement presence in work zones include, but are not
limited to, the following:
(1) Operations occurring on high speed, high volume facilities
where workers on foot are exposed to traffic;
(2) Operations, including temporary traffic control device set-up
and removal, that occur closely adjacent to traffic without positive
protection;
(3) Operations that require temporary or frequent shifts in traffic
patterns;
(4) Night operations that may cause special concerns;
(5) Locations where traffic conditions and crash history indicate
substantial problems may be encountered during the project;
(6) Operations that require brief closure of all lanes in one or
both directions;
(7) Operations where traffic queuing is expected; and
(8) Other work sites where traffic conditions present a high risk
for workers and the traveling public.
(c) Each agency, in cooperation with the FHWA, shall develop a
policy addressing the use of uniformed law enforcement on operations
occurring on Federal-aid highways. The policy shall address the
following:
(1) Law enforcement involvement during major project planning and
development;
(2) Situations where uniformed law enforcement officers are
recommended;
(3) Duties/expectations of the officers (and how they differ
according to different situations);
(4) Active enforcement versus presence;
(5) Appropriate work zone safety and mobility training for the
officers, consistent with the training requirements in 23 CFR
630.1008(d);
(6) Communications and chain of command; and
(7) Officer pay
(d) Uniformed law enforcement officers shall not be used in lieu of
temporary traffic control devices required by the Part 6 of the MUTCD.
Costs associated with the provision of uniformed law enforcement to
help protect workers and 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 management of
traffic. Payment for the services of uniformed law enforcement in work
zones may be included as part of the project budget, or be accommodated
as part of an agency-level program budget. Payment for the use of
uniformed law enforcement included as part of the project budget shall
be on a unit pay basis. The process for establishing an agency-level
program budget shall include:
(1) Appropriate consideration of anticipated projects to estimate
budget needs; and
(2) Contingency provisions to address identified needs should the
budget prove insufficient.
Sec. 630.1110 Installation and Maintenance of Temporary Traffic
Control Devices.
To help ensure that the integrity of the temporary traffic control
is sustained after implementation, each agency shall develop and
implement quality standards to help maintain the quality and adequacy
of the temporary traffic control devices for the duration of the
project. Agencies may choose to adopt quality standards such as those
developed by the American Traffic Safety Services Association
(ATSSA).\1\ A level of inspection necessary to assure compliance with
the quality standards shall be provided.
---------------------------------------------------------------------------
\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.
[fxsp0]atssa.[fxsp0]com/store/bc--item--detail.jsp?productId=1.
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[FR Doc. E6-18283 Filed 10-31-06; 8:45 am]
BILLING CODE 4910-22-P