Rule2024-25065
Work Zone Safety and Mobility and Temporary Traffic Control Devices
Primary source
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Published
November 1, 2024
Effective
December 2, 2024
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
The FHWA amends its regulations that govern traffic safety and mobility in highway and street work zones. The FHWA recognizes that increasing road construction activity on our highways can lead to travel disruptions which could potentially result in congestion and crashes, as well as loss in productivity and public frustration with work zones. The changes will facilitate consideration of the broader safety and mobility impacts of work zones in a more coordinated and comprehensive manner across project development stages.
Full Text
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<title>Federal Register, Volume 89 Issue 212 (Friday, November 1, 2024)</title>
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[Federal Register Volume 89, Number 212 (Friday, November 1, 2024)]
[Rules and Regulations]
[Pages 87282-87299]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-25065]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 630
[Docket No. FHWA-2022-0017]
RIN 2125-AG05
Work Zone Safety and Mobility and Temporary Traffic Control
Devices
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: The FHWA amends its regulations that govern traffic safety and
mobility in highway and street work zones. The FHWA recognizes that
increasing road construction activity on our highways can lead to
travel disruptions which could potentially result in congestion and
crashes, as well as loss in productivity and public frustration with
work zones. The changes will facilitate consideration of the broader
safety and mobility impacts of work zones in a more coordinated
[[Page 87283]]
and comprehensive manner across project development stages.
DATES: This final rule is effective December 2, 2024. The incorporation
by reference of certain publications listed in this rule is approved by
the Director of the Federal Register as of December 2, 2024.
FOR FURTHER INFORMATION CONTACT: Mr. Jawad Paracha, Office of
Transportation Operations (HOTO-1), (202) 366-4628, or via email at
<a href="/cdn-cgi/l/email-protection#eea48f998f8ac0be8f9c8f8d868fae8a819ac0898198"><span class="__cf_email__" data-cfemail="9bd1faecfaffb5cbfae9faf8f3fadbfff4efb5fcf4ed">[email protected]</span></a>, or Mr. William Winne, Office of the Chief
Counsel (HCC-30), (202) 366-1379, or via email at
<a href="/cdn-cgi/l/email-protection#0f58666363666e6221586661616a4f6b607b21686079"><span class="__cf_email__" data-cfemail="184f717474717975364f7176767d587c776c367f776e">[email protected]</span></a>. Office hours are from 8:00 a.m. to 4:30 p.m.,
E.T., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
This document, the Notice of Proposed Rulemaking (NPRM), and all
comments received may be viewed online through the Federal eRulemaking
portal at <a href="http://www.regulations.gov">www.regulations.gov</a> using the docket number listed above.
Electronic retrieval help and guidelines are also available at
<a href="http://www.regulations.gov">www.regulations.gov</a>. An electronic copy of this document may also be
downloaded from the Office of the Federal Register's website at
<a href="http://www.FederalRegister.gov">www.FederalRegister.gov</a> and the U.S. Government Publishing Office's
website at <a href="http://www.GovInfo.gov">www.GovInfo.gov</a>.
Background
The principal mission of DOT is to ensure America has the safest,
most efficient, and modern transportation system in the world. This
system boosts our economic productivity and global competitiveness and
enhances the quality of life in communities both rural and urban. We
depend on transportation for access to jobs, to enable us to conduct
our business, to supply us with services and goods, and to facilitate
our leisure and recreational activities. The Department's mission is
accomplished through strategic goals pertaining to safety, economic
strength and global competitiveness, equity, climate and
sustainability, transformation, and organizational excellence.
An efficient and well-maintained roadway network is a critical
component of our overall transportation system. Our roadway network
must be continuously monitored and repaired to keep it functioning.
Periodically, roadways must also be rehabilitated, reconstructed, or
otherwise improved. Work zones are a necessary part of maintaining and
upgrading our aging roadway infrastructure. The FHWA strongly
encourages that work zones be implemented and maintained as safely as
possible, and with the least possible amount of travel disruption.
Doing so directly supports DOT's safety strategic goal, facilitates the
movement of people and goods while work occurs on our highways, and is
essential for maintaining economic strength and global competitiveness.
Similarly, effective work zone management also ensures that work zone
impacts do not unduly burden any one user group, and that appropriate
efforts are taken to mitigate the differential impacts caused by work
zones. Congestion generated by work zones contributes to vehicular
pollution; reducing congestion undoubtedly supports DOT goals
pertaining to climate and sustainability. Continuous development and
support of new technologies, strategies, and uses of new sources of
data for work zone management relate directly to the Department's
transformation and organizational excellence goals.
Subpart J--Work Zone Safety and Mobility Overview
Over the last two decades, significant strides have been made in
managing work zone safety and mobility, with States establishing
overarching work zone safety and mobility policies and implementing
processes to better understand and manage work zone impacts (e.g.,
implementing processes for significant projects, applying intelligent
technologies for work zone operations, measuring work zone
performance). However, opportunities still exist to improve the
consistency and continuity of work zone management practices across
States, including proactively monitoring and managing work zone impacts
of projects during implementation and leveraging available data sources
for data-driven work zone performance reviews. Work zones continue to
have significant safety and mobility impacts on our transportation
system, which are further expected to increase due to increased road
construction and rehabilitation projects funded by the Bipartisan
Infrastructure Law (BIL). Further, Congress, through the BIL, required
FHWA to update the process review and significant projects sections.
In light of the above, FHWA published an NPRM on September 20,
2023, at 88 FR 64836, to update Subpart J to meet current and future
work zone management needs while also making the subpart compliant with
the BIL. The key changes proposed in the NPRM included: incorporating
safety and mobility performance measures in States' work zone policies;
increasing the reporting interval for work zone process reviews from 2
to 5 years (as per the BIL) and reframing process reviews to
programmatic reviews; clarifying certain unclear terms; and clarifying
the significant projects and associated Transportation Management Plan
(TMP) criteria for Interstate and non-Interstate projects (as per the
BIL).
Several States, a few trade associations, and some private industry
representatives provided responses to the NPRM. Most State department
of transportation (State DOT) commenters agreed with the intent and
concepts proposed in the NPRM but they recommended revisions to
minimize regulatory burden, increase flexibility and scalability, and
make the provisions more practical to apply in the field. States also
noted that some of the terms used in the proposed rule were ambiguous
and lent themselves to subjective interpretation, and asked for
clarification on the compliance dates. In this final rule, FHWA has
addressed the comments received in response to the NPRM that are within
the scope of this rulemaking. The regulation addresses the comments
related to flexibility and scalability of provisions; revises,
eliminates, or clarifies ambiguous terms pointed out by the commenters;
and clarifies compliance timeframes.
The final rule revises Sec. Sec. 630.1004, 630.1006, 630.1008,
630.1010, 630.1012, 630.1014, and 630.1016 of the existing rule
published in 2004 to clarify certain aspects of the regulation and to
update and provide additional emphasis on certain elements. The
regulation will enhance the current state of practice in work zone
management by promoting data-driven assessment of work zone
performance, motivating agencies to conduct a thorough review of work
zone management processes, and encouraging comprehensive assessment and
management of work zone safety and mobility impacts. This final rule
incorporates new definitions and clarifies some existing definitions;
includes a requirement in States' Work Zone Safety and Mobility
Policies to define the safety and mobility performance measures that
States will monitor and report; reframes Work Zone Process Reviews to
Work Zone Programmatic Reviews (WZPR), emphasizing the importance of
reviewing all aspects of a State's work zone management program;
changes the WZPR reporting timeframe from every 2 years to every 5
years to comply with the BIL; strengthens the requirement for States to
develop and implement work zone assessment and management procedures
with an added notion of addressing impacts to all anticipated road
users and highway workers; and clarifies the significant project and
TMP
[[Page 87284]]
criteria for Interstate and Non-Interstate projects to comply with the
BIL.
Subpart K--Temporary Traffic Control Devices Overview
In 2007, at 72 FR 68489, FHWA added a new Subpart K to 23 Code of
Federal Regulations (CFR) part 630 to facilitate 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 intent of
the regulation was to reduce both worker and motorist fatalities and
injuries in work zones. Overall, work zone fatalities decreased
significantly during the latter half of that decade, from a high of
1,068 work zone fatalities in 2004 to 590 fatalities in 2011.\1\
Unfortunately, since then that trend has reversed, growing from 590
fatalities in 2011 to 891 fatalities in 2022 (the most recent year of
available national work zone fatality data). Work zones continue to
have significant safety and mobility impacts on our transportation
system, which are further expected to increase due to increased road
construction and rehabilitation projects funded by the BIL.
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\1\ Fatality Analysis Reporting System (FARS) maintained by
NHTSA and is available at the following URL: <a href="http://www.fars.nhtsa.dot.gov/">http://www.fars.nhtsa.dot.gov/</a>.
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Vehicle collisions with highway workers as a percentage of all
highway worker fatalities have also been trending upward in recent
years. In 2015, 35 percent of all highway worker fatalities at road
construction sites were caused by a vehicle striking a worker; by 2020,
that number has increased to 53 percent.<SUP>2 3</SUP>
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\2\ Census of Fatal Occupational Injuries. Bureau of Labor
Statistics, U.S. Department of Labor, Washington, DC. Accessible at
<a href="https://www.bls.gov/iif/overview/cfoi.htm">https://www.bls.gov/iif/overview/cfoi.htm</a>.
\3\ Worker Fatalities and Injuries at Road Construction Sites.
National Work Zone Safety Information Clearinghouse. Accessible at
<a href="https://workzonesafety.org/work-zone-data/worker-fatalities-and-injuries-at-road-construction-sites/">https://workzonesafety.org/work-zone-data/worker-fatalities-and-injuries-at-road-construction-sites/</a>.
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It has been over 15 years since the Subpart K rule was first
published. New technologies, such as work zone intelligent
transportation systems (also referred to as smart work zones) and
automated flagger assistance devices (AFAD), have become dependable
tools that are now readily available to help mitigate the safety and
mobility impacts of work zones and should be listed as options to
consider within the regulation. Other advanced technologies to support
connected and automated vehicle travel through and around work zones
continue to be developed and deployed. Conversely, despite sufficient
time to develop appropriate procedures to do so, adoption of the
requirement to base decisions regarding the need for longitudinal
traffic barriers and other positive protection devices on an
``engineering study'' have been uneven across the States. A need exists
to strengthen the rule with regard to what constitutes an engineering
study. Finally, the existing regulation references guidelines and other
documents that have been superseded by newer publications.
In light of the above, FHWA published an NPRM on September 20,
2023, at 88 FR 64836, to update Subpart K to meet current and future
work zone safety needs. The regulations proposed in the NPRM were
intended to facilitate improved agency guidelines backed by engineering
research to determine the use of positive protection and other
strategies. In addition, the proposed regulations mandated the use of
positive protective strategies to minimize worker exposure to motorized
traffic in work zones with high anticipated operating speeds that
provide workers no means of escape from motorized traffic intruding
into the workspace. Several States, a few trade associations, and some
private industry representatives provided responses to the NPRM. While
most of the commenters agreed with the intent and the concepts proposed
in the NPRM, they recommended that the proposed provisions be revised
and altered to make them practical for application in the field. The
commenters identified the need for flexibility and scalability in the
implementation of the provisions of the proposed rule; noted that some
of the terms used in the proposed rule were ambiguous and lent
themselves to subjective interpretation; and asked for clarification on
compliance timeframes of the final rule. In this final rule, FHWA has
addressed the comments received in response to the NPRM that are within
the scope of this rulemaking. The regulation addressed the comments
related to flexibility and scalability of provisions; revised,
eliminated, or clarified ambiguous terms pointed out by the commenters;
and clarified compliance timeframes.
The final rule revises Sec. Sec. 630.1104, 630.1106, 630.1108, and
630.1110 of the existing rule published in 2007 to clarify certain
aspects of the regulation and to update and provide additional emphasis
to certain elements that have not seen the quality of implementation
that was initially envisioned. The final rule also adds Sec. 630.1112
to the existing rule to clarify the compliance timeframe. The final
rule incorporates new definitions and clarifies some existing
definitions; updates the requirement in States' Work Zone Safety
Management Policies and Procedures to clarify that agency processes,
procedures, or guidance regarding strategies and devices to be used for
the management of work zone impacts, including the use of positive
protection devices and other strategies, are to be based on an
engineering study; updates the requirement in States' Work Zone Safety
Management Policies and Procedures to provide characteristics of an
engineering study and examples of the types of engineering
decisionmaking tools that can be used in the engineering study; and
modifies Sec. 630.1108(a) to: (i) require that positive protection
devices be used in work zones with high anticipated operating speeds
that provide workers no means of escape from motorized traffic
intruding into the workspace unless an engineering study determines
otherwise; and (ii) remove redundant language indicating that decisions
regarding the use of longitudinal traffic barriers and other positive
protection devices shall be based on an engineering study.
Profile of Commenters
A total of 53 parties commented on the NPRM. Of these, 35 were from
State DOTs, 12 were from trade associations, 3 were from private
companies, and 3 were from private citizens. Representatives from 20
State DOTs provided 35 responses. The 20 States represented a diverse
range of geographies from across the country. The DOTs of Idaho, South
Dakota, North Dakota, Wyoming, and Montana provided a consolidated
response to the NPRM, while the remaining State DOTs submitted
individual comments. The trade associations that provided comments
included the Laborers' Health and Safety Fund of North America
(LHSFNA), American Traffic Safety Services Association (ATSSA),
Associated General Contractors of America (AGC), American Society of
Civil Engineers (ASCE), American Road and Transportation Builders
Association (ARTBA), Motorcycle Industry Council (MIC), American
Federation of State, County, and Municipal Employees (AFSCME),
International Safety Equipment Association (ISEA), and Institute of
Transportation Engineers (ITE).
The commenters represented a cross-section of job categories across
DOT functions including planning, engineering, traffic, safety, design,
construction and contracting.
[[Page 87285]]
Subpart J--Work Zone Safety and Mobility
Overall Position of Commenters
Most commenters were generally supportive of the intent and stated
purpose of the proposed revisions. Some commenters offered additional
comments on specific areas of concern and recommended changes to
improve the rule's language and interpretability.
Generally, State DOTs commented that the proposed revisions should
not have a mandatory impact, but instead allow for flexibility and
scalability while limiting unintended liability and cost. Five States
agreed with FHWA's intent and the concepts for improving work zone
safety and mobility but did not agree with many of the mandatory
provisions. States also sought clarification on whether FHWA intended
to mandate the performance measures listed in some of the ``shall''
conditions or whether the measures were provided as examples. In
addition, States asked for clarification on certain ambiguous terms as
well as the compliance timeframe for the final rule.
Most State DOT commenters appreciated the updated 5-year reporting
timeframe for WZPRs but had concerns about the new 3-year performance
reporting requirement. They commented that the 3-year requirement
contradicts BIL Sec. 11302 and would require significant commitments
from its limited staff. In addition, they sought clarification on the
flexibility for States to choose the number of performance measures and
specific measures to meet final rule requirements.
Private sector commenters also offered comments on certain areas of
concern. Details regarding these issues and FHWA's specific response
are discussed in the following section, which provides a section-by-
section analysis of the comments.
Section-by-Section Analysis of NPRM Comments and FHWA Response--Subpart
J
Overview of the Organization of This Section
This section consists of a detailed discussion on the comments
received on specific NPRM sections and the FHWA response and resolution
to the comments. For each section, the following information is
presented:
<bullet> Breakdown of the position of the commenters with regards
to the provisions proposed in that section;
<bullet> Major issues cited by the commenters; and
<bullet> FHWA action in response to the comments and explanation of
the provisions being implemented in the final rule.
The following paragraphs present a section-by-section analysis and
resolution of the comments on the NPRM.
Sec. 630.1004 Definitions and Explanation of Terms
Most commenters were supportive of this section. Some commenters
offered specific comments on some of the definitions proposed in the
NPRM. They are discussed as follows:
Definition of ``Agency''
A commenter pointed out that the term ``agency'' only appears in
the definitions of ``Highway Workers,'' ``Transportation Management
Plan,'' and ``Work Zone Programmatic Review.'' The commenter mentioned
that all remaining sections refer to ``States'' and have no actionable
items for agencies. The commenter sought clarification on the intent of
using the term ``agency'' and any final rule provisions or action items
applicable to local highway agencies or authorities.
The FHWA will retain the ``Agency'' definition as proposed in the
NPRM and add clarification in Sec. 630.1010 that provisions in
Sec. Sec. 630.1010, 630.1012, and 630.1014 apply to State and local
agencies that receive Federal funding for their work zone projects. The
FHWA updated the definition of ``Agency'' by adding, ``that receives
Federal-aid highway funding'' at the end to be consistent with the
Subpart K definition.
Definition of ``Mobility''
Four commenters provided input on this definition, with three
commenters opposed to the deletion of language associated with highway
worker or road user safety and one being neutral. The three commenters
suggesting that the language associated with the safety of highway
workers and road users should not be deleted believe that keeping the
language intact would help emphasize the fact that safety is a crucial
aspect that underpins the movement of road users. Another commenter
suggested adding `level of service' as an example of commonly used
performance measures.
As requested by the commenters, FHWA will retain the safety
language related to highway workers and road users in the mobility
definition. The FHWA did not add `level of service' as an example
measure because it is a metric that can be derived from the other
example metrics included in the provision.
Definition of ``Road Users''
While FHWA did not propose a definition for ``Road User'' in the
NPRM, one commenter asked FHWA to clarify the term in relation to the
use of this term in Sec. 630.1008(b).
The FHWA declines to add a new definition here but notes that the
definition for the term ``Road Users'' is provided in 23 United States
Code (U.S.C.) 148(a)(8).
Definition of ``Safety''
Ten commenters supported the removal of superfluous language on
highway worker safety. Four of the commenters suggested removing ``the
rate of highway worker fatalities and injuries per hours of work
activity'' from commonly used measures. They suggested this removal due
to the difficulty of obtaining accurate information for these measures.
The FHWA understands the difficulty cited by commenters in
collecting accurate hours of work activity and numbers of highway
worker fatalities and injuries. To this end, FHWA removed ``the rate of
highway worker fatalities and injuries per hours of work activity''
from the commonly used measures.
Definition of ``Transportation Management Plan''
Five commenters pointed out that the section-by-section discussion
of Sec. 630.1004 in the NPRM inaccurately stated that the TMP
definition includes references to the temporary traffic control (TTC)
plan and transportation operations (TO) and public information and
outreach (PIO) components to the TMP.
The FHWA agrees with the commenters' observation that the TMP
definition does not provide information about the TTC, TO, and PIO
components. Sections 630.1010(d) and 630.1012(b) provide a detailed
explanation of these TMP components. The FHWA added a clarifying
sentence at the end of the TMP definition that readers can refer to
Sec. 630.1010(d) and Sec. 630.1012(b) for more information on the TMP
and its components.
Definition of ``Work Zone Crash''
Three commenters supported the proposed changes. Two commenters
asked FHWA to compare the proposed work zone crash definition with the
Model Minimum Uniform Crash Criteria (MMUCC) definition of secondary
crashes.\4\ The MMUCC says that
[[Page 87286]]
secondary crashes are identified from the time the initial crash is
detected, occurring either at the primary crash site or within the
traffic queue or backup, including those in the opposite direction
caused by the primary crash. A commenter recommended providing
additional clarification that the crash tracking requirement is not
intended to capture any crash within the area of impact, and only
specifically work-zone-related crashes per the MMUCC.
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\4\ MMUCC Guideline Model Minimum Uniform Crash Criteria 6th
edition. National Highway Traffic Safety Administration. Accessed
at: <a href="https://www.nhtsa.gov/file-downloads?p=nhtsa/downloads/MMUCC/">https://www.nhtsa.gov/file-downloads?p=nhtsa/downloads/MMUCC/</a>.
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The FHWA did not make any changes to the proposed NPRM language.
The existing ``Work Zone Crash'' definition in Sec. 630.1004 refers to
the crash definition in MMUCC, which also addresses secondary crashes
outside the work zone limits influenced by the primary work zone
crashes. The FHWA encourages States to include secondary work zone
crashes in their safety analysis to the extent data are available.
Definition of ``Work Zone Impacts''
Two commenters supported the proposed changes. One commenter
recommended adding ``Type of Temporary Traffic Control'' to the list of
factors for assessing the work zone impacts and extent. Another
commenter asked for clarification on whether States need to use minimum
parameters or engineering judgement to assess ``distance between
workers and traffic and availability of escape paths for workers''
factors.
The FHWA updated the rule language by adding type of temporary
traffic control as a factor that States can consider for assessing the
extent of work zone impacts. In addition, FHWA clarifies that States
can (i) use data from work zone planning and implementation logs to
identify ``the distance between workers and traffic'' and (ii) a
combination of data (e.g., work zone type, location, closure status)
and engineering judgement to assess ``the availability of escape paths
for workers.'' Workers in this instance refers to flaggers and highways
workers.
Sec. 630.1006 Work Zone Safety and Mobility Policy
Sec. 630.1006(b) Identification of Safety and Mobility Performance
Measures in the Policy
Twenty-one commenters provided comments in response to this
paragraph. Of these, 12 commenters expressed concerns about the
inclusion of a list of safety and mobility performance measures within
the ``shall'' condition of the work zone policy requirement. They
believe that it gives the impression that FHWA mandates the use of
these performance measures. The commenters sought clarity on whether
FHWA mandates the use of these measures or whether they are just
examples. They also asked whether they can choose performance measures
not listed in this paragraph and whether there is a minimum number of
safety and mobility performance measures that each State should
identify to meet this requirement. A commenter noted that the Manual on
Uniform Traffic Control Devises (MUTCD) uses American National
Standards Institute/ISEA (ANSI/ISEA) 107-2015 standard for compliance
requirements of high-visibility safety apparel for all workers
performing daytime and nighttime work activity within temporary traffic
control zone. The commenter suggested adding a new paragraph to
recognize the new ANSI/ISEA 107-2020, the American National Standard
for High Visibility Safety Apparel.
The safety and mobility performance measures included in the NPRM
are examples and are not mandatory. To avoid confusion, FHWA split the
proposed sentence into two. The revised first sentence contains the
requirement for States to identify performance measures in their work
zone policies. The second sentence provides examples of measures to
consider. States can comply with this requirement by identifying at
least one safety and one mobility performance measure, but they are
encouraged to use as many performance measures as needed to manage the
performance of their work zones. States may choose performance measures
that are best suited to their work zone conditions and impacts but they
must have a documented work zone performance management approach for
selecting projects, identifying performance measures, and collecting
performance data. In response to the suggestion to add a new paragraph
regarding ANSI/ISEA 107-2020, Subpart J incorporates the MUTCD and
requires the use of Part 6 by reference. Section 6C.05 of the MUTCD
requires all workers performing daytime and nighttime work activity
within temporary traffic control zones to wear high-visibility safety
apparel that meets the Performance Class 2 or 3 requirements of the
ANSI/ISEA 107-2015 standard or equivalent revisions.
Sec. 630.1006(c) Multi-Disciplinary Team
Eight commenters provided input on this paragraph. Note that FHWA
did not propose any changes to existing language related to the multi-
disciplinary team. The only change that FHWA made to this paragraph was
to assign a paragraph number, ``(c),'' to this sentence. Six commenters
suggested removing this paragraph to allow States flexibility for
selecting members for the multidisciplinary team. Two commenters sought
clarification on whether States can keep this team internal and involve
external parties only if necessary. Another commenter commented that
the language in Sec. 630.1006(c) is redundant with Sec.
630.1008(e)(5).
The FHWA disagrees with the suggestion of deleting this paragraph
and retained the language as proposed in the NPRM. The intent of the
``should'' condition is to encourage States to include members from
various work zone management divisions in their policy development and
implementation in a comprehensive manner. States can determine the
members of their multidisciplinary team based on their needs. The team
and developed policies can remain internal to the States, but external
members can be added if deemed necessary. While Sec. 630.1006(c)
addresses the members that participate in the development and
implementation of the work zone safety and mobility policy, Sec.
630.1008(e)(5) addresses the members that participate in the work zone
programmatic review.
Sec. 630.1008 State-Level Processes and Procedures
Sec. 630.1008(b) Work Zone Assessment and Management Procedures
Ten commenters provided comments on this paragraph. Among these,
seven commenters suggested to retain the previous ``should'' condition
for this requirement instead of elevating to a ``shall.'' These
commenters also believed that the term ``potential'' in ``potential
work zone impacts'' could be construed as requiring analysis for
outcomes that may be unlikely but are nonetheless ``potential''
impacts. They recommended replacing the term ``potential'' with
``likely'' or ``possible'' so that the implementation of this
requirement can be more practical. A commenter expressed concern with
the use of term ``all'' in ``all road users and highway workers'' as
some road users (e.g., pedestrians and bicyclists) might not be
applicable when assessing impacts on certain work zones. The commenter
suggested removing the term ``all'' or qualifying with a caveat such as
``all anticipated road users.'' Another commenter recommended adding
``(including motorcyclists)'' next to road users.
The FHWA disagrees with the commenters' suggestion to retain the
[[Page 87287]]
``should'' condition instead of ``shall'' condition. The Work Zone
Assessment and Management Procedures provision was introduced in 2007
as a new concept, hence the use of ``should'' was appropriate at that
time. Since then, States have made significant progress in their work
zone impacts assessment and management procedures. Therefore, using
``shall'' will reinforce this progress and facilitate continued
improvement in work zone safety and mobility nationwide. The FHWA made
additional changes for clarity and to address the issues cited by the
commenters.
Sec. 630.1008(c) Work Zone Data
Thirteen commenters provided comments on this paragraph. Of these,
eight commenters suggested changing the ``shall'' condition for this
requirement to a ``should.'' These States noted that the term
``available'' is missing in front of safety surrogate data. Some
commenters asked FHWA to clarify its intent in using the term
``available'' in front of multiple data sources. They commented that
some data sources might be available in the market but not accessible
for States to use due to factors such as required subscriptions and
funding. In addition, five commenters sought clarity on whether FHWA
mandates the use of performance measures listed in this paragraph or
whether they are just examples. Two other commenters asked for clarity
on the term ``specific projects'' and if it is the same as significant
projects defined in Sec. 630.1010.
The existing rule already requires States to use data in their work
zone safety and mobility management processes. The FHWA retained the
``shall'' condition to facilitate improved data-driven assessments of
work zone performance nationwide. To address the comment about
performance measures, FHWA split the paragraph into two sentences in
the final rule. The revised first sentence presents the requirement,
and the second sentence identifies example measures for each data
source. The FHWA's intent in using the term ``available'' in this
paragraph is not to require States to acquire additional data available
in the market, but rather to make use of data accessible and available
to them through existing sources. ``Specific projects'' in this
paragraph refers to individual projects that State DOTs choose for
monitoring and management of work zone impacts during implementation.
Specific projects may include significant or non-significant projects,
and are selected based on factors such as land use, type of roadway,
work zone type, and the extent of potential work zone impacts.
Sec. 630.1008(d) Training
Three commenters provided comments on this paragraph. Note that
FHWA did not propose any changes to existing language for this
paragraph. The commenters did not cite any major issues. One commenter
asked about training and certification requirements pursuant to Sec.
630.1008(d). Another commenter recommended that State and local roadway
owners should require a trained and certified Work Zone Supervisor to
be assigned for each significant project. The third commenter
recommended to update the paragraph language by adding an established
time period that informs workers when they should recertify their
training to ensure workers are thoroughly trained in the best safety
practices when working in work zones.
The FHWA did not make any changes to this provision. With regard to
the commenter's question on training and certification requirements,
FHWA's position is that State DOTs need to tailor training and
certification for each role based on their own requirements. For
example, Virginia DOT's Work Zone Traffic Control Training Requirements
document \5\ identifies various roles in design, construction, and
maintenance/operations divisions and their respective training and
certification requirements. The current state of the practice is that
most agencies require their staff to be retrained once every 2 to 4
years. With regard to the comment on retraining, FHWA believes that the
second sentence in this provision (i.e., States shall require periodic
training updates that reflect changing industry practices and State
processes and procedures) addresses the comment by requiring periodic
training updates that reflect changing industry practices, which
includes state-of-the-art practices.
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\5\ <a href="https://ops.fhwa.dot.gov/wz/resources/final_rule/webcast/020112wztpdi/rush_ppt/rush.htm">https://ops.fhwa.dot.gov/wz/resources/final_rule/webcast/020112wztpdi/rush_ppt/rush.htm</a>.
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Sec. 630.1008(e) Work Zone Programmatic Review
Eleven commenters provided input on this paragraph. All commenters
were supportive of this high-level provision. Note that Sec.
630.1008(e) speaks about the high-level provision for work zone
programmatic reviews and its reporting timeframe, whereas paragraphs
Sec. 630.1008(e)(1) through (e)(5) provide more specifics on the
contents of the work zone programmatic reviews, project selection for
conducting reviews, data-driven assessment needs, and examination of
various work zone efforts. Commenters provided separate comments on
these individual paragraphs, which are discussed following this
section. Six commenters asked for clarification for the timeframe of
the data to be included in the 5-year programmatic review. They noted a
technical concern in the wording that calls for a State to share its 5-
year review with FHWA ``by the end of the 5-year review period.'' They
suggested that the review period for each WZPR report should include
the review of work zones from 5 calendar years prior to the year of the
report. Commenters also asked for clarification on the compliance dates
for the reframed WZPR requirement. They mentioned that it may take at
least 12 to 24 months to update their policies and data collection
practices to meet the new requirements. They asked FHWA to consider
these factors when identifying the compliance dates/timeframes. A
commenter recommended application of data driven assessments to a
representative sample of work zone projects over the 5-year review
period that justify their inclusion.
The FHWA finds the approach suggested by the State DOTs for
Programmatic Reviews' review period (i.e., the review period for each
WZPR report includes selection and review of work zones from 5 calendar
years prior to the year of the report) to be reasonable. States may use
this approach for selecting the review period for their Programmatic
Reviews. The FHWA addressed comments about compliance timeframes in
Sec. 630.1016 by indicating that the next Programmatic Review reports
are due by December 31, 2030. The FHWA reemphasizes that States shall
use a documented approach for selecting representative projects based
on factors such as land use (urban and rural locations), roadway type,
type of work zone, and extent of the work zone impacts.
Sec. 630.1008(e)(1) Work Zone Programmatic Review--Qualification
Six commenters provided comments on this paragraph. Of these, two
commenters suggested changing the requirement from ``shall'' to
``should'' and indicated that this change will allow flexibility to
States in selection of projects for WZPRs. These two commenters along
with four other commenters noted a major concern with the use of term
``all'' in ``all work zones'' and indicated that this implies that
States shall include all their work zones in their WZPRs. They
indicated that the term ``all'' is particularly concerning in rural
areas where there are very few
[[Page 87288]]
projects that qualify as ``significant.'' These commenters suggested
removing the term ``all'' from the regulation. Another commenter asked
whether States are required to negotiate and confirm the representative
project selection approach with the FHWA division offices.
The FHWA retained the ``shall'' condition and addressed the concern
raised by multiple commenters by removing the term ``all'' from the
final rule language. To avoid confusion, FHWA split the first sentence
into two sentences. The revised first sentence addresses the data-
driven assessment requirement of WZPRs, and the second sentence
presents the minimum Programmatic Review requirement to include a
representative sample of the State's work zones over the 5-year period
being reviewed. This revision provides flexibility to State DOTs to
select a representative set of projects based on a documented and well-
reasoned approach. To the extent possible, FHWA encourages States to
include all work zones in their programmatic review to make it a
comprehensive review of systemwide performance. While States are not
required to include FHWA division offices in defining the approach for
representative project selection, they are encouraged to do so.
Sec. 630.1008(e)(2) Explanation of Work Zone Programmatic Review
Two commenters provided input on this paragraph. One commenter
suggested changing the requirement from ``shall'' to ``should'' to
minimize regulatory burden on States. Another commenter commented that
the terms ``divisions or offices'' used in this paragraph are not
clearly defined.
The FHWA retained the ``shall'' condition in the final rule to
ensure uniform implementation and reporting of WZPRs across the
country. To make it clear that Programmatic Reviews should identify
State divisions and offices responsible for implementing action items,
FHWA added the term ``State'' in front of ``divisions or offices.''
Sec. 630.1008(e)(3) Work Zone Programmatic Review Data and Reporting
Nine commenters provided comments on this paragraph and opposed the
provisions in it. A commenter suggested changing the requirement from
``shall'' to ``should'' to minimize regulatory burden on States. Eight
commenters indicated that the requirement to report performance at the
end of the third year might be contradictory to the BIL. Commenters
noted inconsistent use of the term ``available'' in front of data
sources. A commenter asked for clarification on contents to be included
in the 3-year report. Another commenter suggested consistency in use of
example measures listed in Sec. 630.1008(e)(3) and Sec. 630.1008(c).
In addition, five commenters sought clarity on whether FHWA mandates
the use of performance measures listed in this paragraph or whether
they are just examples.
The FHWA removed the mid-point performance data reporting from the
rule provision to address the comments received. The FHWA retained the
annual performance monitoring requirement. The purpose of the annual
monitoring is to facilitate continuity in assessing work zone
performance. States are encouraged to use the performance measures they
identify in their policies for the annual monitoring and incorporate
their findings into their 5-year WZPRs. The FHWA added the term
``available'' in front of all data sources to make it consistent. The
FHWA removed the performance measures proposed in the Sec.
630.1008(e)(3) of NPRM and added a sentence noting that agencies can
use examples of performance measures listed in Sec. 630.1008(c) for
each data source.
Sec. 630.1008(e)(4) Examination of Other Efforts
Seven commenters provided comments on this paragraph. Of these, two
commenters suggested changing the requirement from ``shall'' to
``should'' to minimize regulatory burden on States. Four commenters
opposed the use of the term ``all'' in ``all State divisions and
offices,'' and noted that the selection of applicable divisions or
efforts to be examined as part of WZPRs varies between States depending
on factors such as staff and data availability in those divisions. They
asked whether the efforts listed in the requirement are examples or
requirements, and if States have flexibility in selection of these
efforts based on their work zone assessment criteria.
The FHWA retained the ``shall'' condition in the final rule to
emphasize the importance of covering all aspects of program planning
and project development that affect work zone safety and mobility. The
FHWA removed the term ``all'' in front of ``State divisions or
offices'' to allow States flexibility to select efforts applicable to
their work zone safety and mobility assessment. The FHWA further
clarifies that the efforts listed in Sec. 630.1008(e)(4) apply to work
zone processes and procedures requirements between Sec. 630.1008(e)(2)
and Sec. 630.1008(e)(4). The FHWA's intent is for States to select the
efforts considering the assessment of the work zone safety and mobility
performance. The FHWA encourages States to involve FHWA division
offices in selecting efforts, but it is not mandatory.
Sec. 630.1010 Significant Projects
Sec. 630.1010(a) Significant Project Explanation
Only one commenter provided comments in response to this paragraph.
Note that FHWA did not propose any changes to existing language for
this paragraph. This commenter suggested adding the words ``work zone''
in between significant projects to distinguish work zone projects from
other types of projects that may have different impacts and
requirements.
The FHWA did not propose any changes to this provision in the NPRM.
Therefore, FHWA did not make any change to the final rule. With regards
to the one comment on this topic, the significant project definition
addresses sustained work zone impacts, and it is implied that these
projects are work zone projects.
Sec. 630.1010(c) Significant Project Qualification--Interstates
Four commenters provided comments on this paragraph. Note that FHWA
did not propose any changes to existing language for this paragraph.
Three of the commenters recommended deleting this paragraph, noting
that States have a defined policy under Sec. 630.1010(a) for
determining significant projects. Two commenters asked FHWA to consider
providing flexibility for intermittent closures associated with
preservation and maintenance activities with lower/mitigated impacts on
the interstate system. Another commenter mentioned that the BIL
language about significant projects does not include intermittent lane
closures.
In compliance with BIL Sec. 11303(a), FHWA retained the language
as proposed in the NPRM. Although States define their policy under
Sec. 630.1010(a), work zones on interstates that meet the conditions
of Sec. 630.1010(c) would still qualify as significant projects. This
section identifies minimum criteria for significant projects. If a
State determines a project or a class of projects as not significant,
they can make use of the State DOT policy in Sec. 630.1010(b) and
exception process in Sec. 630.1010(d) to file an exception and not
prepare the PIO and TO components of a TMP. The BIL Sec. 11303(a)
mentions that ``The Secretary shall amend section 630.1010(c) of title
23, Code of Federal Regulations, to ensure that only a
[[Page 87289]]
project described in that paragraph with a lane closure for 3 or more
consecutive days shall be considered to be a significant project for
purposes of that section.'' The projects described in paragraph Sec.
630.1010(c) include work zone projects with intermittent or continuous
lane closures.
Sec. 630.1010(d) Significant Project Qualification--Non-Interstates
Three commenters provided comments on this paragraph. All of them
recommend deleting this paragraph, noting that TMP requirements are
covered in Sec. 630.1012(b).
The FHWA retained this paragraph because it is required for
compliance with BIL Sec. 11303(b) and to address TO/PIO requirements
for non-interstate projects. However, FHWA modified this paragraph to
simplify the language and make it consistent with the interstate system
projects requirement. The FHWA also changed the numbering for this
section Sec. 630.1010(d) in the NPRM to Sec. 630.1010(e). This change
allows the significant project exceptions for interstate projects
(i.e., previously Sec. 630.1012(e) in the NPRM) to be next to the
significant project qualification section (i.e., Sec. 630.1012(c)).
Sec. 630.1010(e) Significant Project Exceptions--Interstates
One commenter provided comments on this paragraph. Note that FHWA
did not propose any changes to this paragraph. The commenter requested
clarity on the process and time frame to request and receive an
exception from FHWA.
Since there was no change proposed in the NPRM, FHWA did not make
any changes to this paragraph in the final rule. With regards to the
commenter's requested clarification on the process and time frame for
exceptions, States are encouraged to coordinate with FHWA division
offices on how to handle exceptions either on a project-by-project
basis or for a particular project category, in order to streamline and
simplify the process.
Sec. 630.1012 Project-Level Procedures
Sec. 630.1012(a) Section Overview and (b) Transportation Management
Plan
Five commenters provided comments in response to the NPRM preamble
language of this paragraph. Note that FHWA did not propose any changes
to existing language for this paragraph in the NPRM. A commenter asked
FHWA to clarify which agencies would be responsible for developing TMPs
for projects outside the State DOT's jurisdiction. Further, the
commenter mentioned that the State should not be required to develop
and implement TMPs for such projects and manage their impacts. The
section-by-section discussion of the NPRM's Sec. 630.1004 talks about
updating the public information component to PIO in the TMP definition.
However, the TMP definition does not cover the TO and PIO components of
a TMP. All five commenters pointed out that the preamble discussion on
expanding public information to PIO is more appropriate in the section-
by-section discussion of Sec. 630.1012(b) as that section explains
about PIO.
The FHWA decided to remove the requirement that TTC plans are
consistent with the work zone hardware recommendations in Chapter 9 of
the 2011 American Association of State Highway and Transportation
Officials (AASHTO) Roadway Design Guide (RDG), which had been proposed
for incorporation by reference in the NPRM. The 4th edition of the RDG
includes some statements that are no longer accurate (e.g., reference
to FHWA's approval of crashworthy products by issuing acceptance
letters). Despite this change in mandatory requirement, agencies are
encouraged to consider the work zone hardware recommendations in the
AASHTO RDG when preparing their TTC plan. This RDG document was
developed by AASHTO to present the concepts of roadside safety
(including those in work zones) to designers so that the most
practical, appropriate, and beneficial roadside design can be
accomplished for each project.
The FHWA clarifies that the provisions in Sec. Sec. 630.1010,
630.1012, and 630.1014 apply to all State and local agencies that
receive Federal funding for their work zone projects. An agency (State
or local) that receives Federal funds for their work zone projects is
responsible for developing and implementing TMPs and managing impacts
of those projects. The FHWA agrees with the commenters and clarifies
that the description of a public information component in Sec.
630.1010(d) and Sec. 630.1012(b) has been expanded to PIO to be
consistent with the intent of that aspect of the TMP.
The rulemaking to adopt the 11th edition of MUTCD was in progress
when FHWA published the NPRM for this rule. In December 2023, FHWA
published the new version of MUTCD. Since Sec. 630.1012(b) refers to
MUTCD Part 6, FHWA updated the MUTCD reference in Sec. 630.1018 to
reflect the new version.
Sec. 630.1012(c) Inclusion of TMP in Plans, Specification, and
Estimates
Two commenters provided comments on this paragraph. Both suggested
removing the ``shall'' condition from this paragraph and noted that
including TMP into Plans, Specification, and Estimates will require
additional policy and process development, training, and legal review.
The FHWA did not make any change to this paragraph in the final
rule. The ``shall'' condition has been in place since the initial Work
Zone Safety and Mobility Rule published in 2004 and does not introduce
any new requirements.
Sec. 630.1012(e) Responsible Persons
Only one commenter provided comments in response to this paragraph.
The FHWA did not propose any changes to this paragraph in the NPRM. The
commenter inquired if the trained person referred to in this paragraph
must meet any ATSSA certification requirements.
The FHWA did not make any changes to this paragraph. With regards
to the commenter's question, FHWA does not establish specific training
and certification requirements, as each agency determines its own.
Sec. 630.1016 Compliance Date
Eleven commenters provided comments in response to this paragraph.
Of these, ten commenters asked questions about the compliance date for
the provision and the timeframe for the mid-point performance summary
and WZPR reporting. Commenters asked for the effective date to be a
minimum of 12 months from the date of final rule publication.
The FHWA changed the compliance date to December 31, 2026, which
allows at least 24 months for States to comply with the rule. The next
WZPR reporting date will be December 31, 2030, respectively. In
addition, FHWA removed the phrase ``and once every 5 years thereafter''
as it is already covered in Sec. 630.1008(e).
Subpart K--Temporary Traffic Control Devices
Overall Position of Commenters
Commenters were generally supportive of the intent and purpose of
the updates to Subpart K and acknowledged the importance of work zone
safety, and specifically, worker safety. The commenters offered
comments on specific areas of concern and recommended changes to
improve the rule's language. State DOTs expressed concern that the rule
should
[[Page 87290]]
not mandate provisions but rather it should allow for adequate
flexibility and scalability while limiting unintended liability and
cost. States also sought clarification of certain ambiguous terms and
the compliance timeframe. Private sector commenters also offered
comments on certain areas of concern. Details regarding these issues
and FHWA's specific responses are discussed in the following section,
which provides a section-by-section analysis of the comments.
The majority of commenters expressed overall support for the
provisions proposed in the NPRM. While the commenters' overall position
on the NPRM was supportive, many of these commenters suggested
modifications and revised language for specific provisions as they
deemed appropriate.
Of the six commenters who did not expressly support the updates,
five of them agreed with FHWA's intent and the concepts for improving
work zone safety and worker protection, but did not agree with the
mandatory provisions. They opposed the change proposed in Sec.
630.1108(a) to require positive protection devices in specific
conditions unless an engineering study concludes otherwise. To this
end, they mentioned the specific work zone conditions where these
requirements would not be practically applicable, and the additional
investments associated with implementing these strategies. They
suggested additional changes to specific sections and removal of
ambiguous terms. They also sought clarification on the compliance
timeframe for the final rule. The remaining commenter opposed the
provision for development of broader guidelines based on an engineering
study that agencies can use for determining the requirement of positive
protection or other strategies, and also opposed adding the ``high
anticipated operating speeds'' qualifier in the provision (Sec.
630.1108(a)) that addresses the positive protection requirement.
Section-by-Section Analysis of Comments and FHWA Response--Subpart K
Sec. 630.1104 Definitions and Explanation of Terms
Most commenters were supportive of this section. Some commenters
offered specific comments on some of the definitions proposed in the
NPRM. They are discussed as follows:
Definition of ``Engineering Study''
Eight commenters provided input on this definition. All eight
commenters stated that the term ``comprehensive'' in ``comprehensive
analysis and evaluation of available pertinent information . . .'' is
unclear. They recommended deleting this term to be consistent with the
definition of Engineering Study from the recently published MUTCD 11th
edition. A commenter suggested adding the term ``temporary'' in front
of ``traffic control.''
Keeping consistency with the MUTCD definition, FHWA deleted the
term ``comprehensive'' from this definition. The term ``traffic
control'' is used in a broad sense here. As the definition of
``Engineering Study'' applies to the entire Subpart K, which provides
guidance on how to approach strategies related to all work-zone-related
temporary traffic control, FHWA did not add ``temporary'' before
``traffic control'' in this definition.
Definition of ``Positive Protection Devices''
Four commenters provided input on this paragraph. Three commenters
opposed removing the crashworthiness qualifier requirements from the
definition of positive protection devices. They mentioned that the
crashworthiness requirements ensure that the various positive
protection mechanisms used are tested for their appropriateness to
offer the necessary protections at relevant speeds. The remaining
commenter asked for a more detailed definition of positive protection
devices, including example devices that constitute a positive
protection device.
The FHWA updated the definition language to include that the
positive protection devices meet applicable industry crashworthiness
evaluation criteria. For example, AASHTO's Manual for Assessing Safety
Hardware includes current industry crashworthiness evaluation criteria.
Industry crashworthiness evaluation criteria are not regulatory, and
use of them is voluntary and not required by law. This updated language
reemphasizes FHWA's longstanding policy that all roadside safety
hardware installed on the National Highway System be crashworthy.
States can refer to 23 U.S.C. 112(g)(4) for examples of positive
protection devices, which include temporary traffic barriers, crash
cushions, and other strategies to avoid traffic crashes in work zones,
including full road closures.
Sec. 630.1106 Policy and Procedures for Work Zone Safety Management
Sec. 630.1106(b) Agency Processes, Procedures, or Guidance
Eight commenters provided input on this section. Three of the
commenters opposed the requirement that agency processes, procedures,
or guidance regarding strategies and devices to be used for the
management of work zone impacts, including the use of positive
protection devices and other strategies, are to be based on an
engineering study. The remaining commenter suggested requiring that
State DOTs conduct a project-specific engineering study instead of
using agency guidelines based on an engineering study.
The FHWA decided to remove the reference to the AASHTO RDG. The 4th
edition of the RDG includes some statements that are no longer accurate
(e.g., reference to FHWA's approval of crashworthy products by issuing
acceptance letters). Despite this change, agencies are encouraged to
consider work zone related information in the AASHTO RDG during the
development of their processes, procedures, and guidance. The FHWA
reemphasizes that agencies need to use reasonable and well-documented
approaches backed by engineering research to develop their processes,
procedures, or guidance for managing work zone impacts, including using
positive protection devices and other strategies. Such well-documented
approaches can provide evidence-based justification for agencies to
determine the need for positive protection and other strategies to
ensure worker safety.
A commenter suggested moving the detailed discussion of engineering
study from this paragraph to the ``engineering study'' definition in
Sec. 630.1104.
The definitions section offers a broader definition of engineering
study. In contrast, this section provides more in-depth details of who
conducts the study, how to document it, and applicable tools to perform
it. Therefore, FHWA believes the details of the engineering study are
more applicable to this section.
Another commenter asked for a clear definition of the terms
``safety impacts'' used in Sec. 630.1106 (b)(3) ``anticipated traffic
safety impacts.''
As noted in Sec. 630.1004--definitions of ``Safety'' and ``Work
Zone Impacts,'' work zone safety impacts refer to work-zone-induced
potential hazards to road users in the vicinity of a work zone and
highway workers at the work zone interface with traffic. Anticipated
traffic safety impacts in this paragraph refer to identifying the
safety risks to work zone workers and road users associated with
[[Page 87291]]
various factors such as exposure to traffic, time of activity, type of
activity, intrusion of motorized traffic into activity area, lane
widths, speed limits, crash frequency and severity prior to work zone
implementation, and pre-work zone inspection findings. This safety
impact identification approach can be a simple checklist for short-term
and limited-exposure projects and a more involved assessment for long-
term and complex projects.
A commenter recommended adding a minimum safety requirement for
work zone workers to this section.
The FHWA does not see a need to add specific requirements for
worker safety in this paragraph as worker safety is addressed in
various sections of 23 CFR 630 Subparts J and K, and MUTCD 11th
edition.
The FHWA referenced four benefit-cost studies in the NPRM Subpart-K
discussion section to justify that research and data did not support
the thresholds stated in the Moving Ahead for Progress in the 21st
Century Act (MAP-21). In response, two commenters stated that these
studies overestimated the cost of positive protection devices.
Studies found it difficult to justify positive protection based on
crash statistics and benefit cost analysis. Due to limited availability
and challenges associated with collecting positive protection-specific
data, FHWA has no new credible information to justify updating the
implementation thresholds of positive protection strategies.
Sec. 630.1108 Work Zone Safety Management Measures and Strategies
Sec. 630.1108(a) Positive Protection Devices
Seven commenters provided input on this paragraph. Five commenters
opposed the use of the ``shall'' condition for implementing positive
protection devices and mentioned that these devices require a
significant investment. They suggested retaining the existing rule
provision language, which would allow States to determine the need for
positive protection devices based on an engineering study. They also
mentioned that several previous studies have demonstrated that cost-
benefit analyses do not justify this policy. In addition, two
commenters noted that the requirement to use positive protection
devices ``unless an engineering study determines otherwise'' is the
opposite of the current rule and contrary to the findings of prior
research. These commenters also asked about the extent of conducting
these engineering studies across different projects.
The FHWA made a minor update but retained the remaining language as
proposed in the NPRM. In the NPRM, FHWA added the ``shall'' condition
for the use of positive protection in response to increasing trend of
fatalities in worker struck incidents and to address the requirements
in MAP-21 Section 1405. Since this is a ``shall'' condition, FHWA is
restricting the implementation requirement to the situations where the
workers are most vulnerable, which is work zones with high anticipated
operating speeds that provide workers no means of escape from motorized
traffic intruding into the workspace. The FHWA added the ``high
anticipated operating speeds'' as the majority of fatal work zone
crashes occur on high-speed roadways such as urban and rural
interstates, urban and rural principal arterials, and freeways/
expressways.\6\ These facility types generally operate at high speeds
(45 mph or greater). The FHWA prioritizes the implementation of
enhanced safety measures in high-risk environments, ultimately
safeguarding the lives of those working in the most vulnerable
conditions. The language adopted is consistent with that used in MAP-21
Section 1405 for these situations. However, agencies may choose to use
positive protection devices on roadways with lower operating speeds.
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\6\ <a href="https://workzonesafety.org/work-zone-data/work-zone-traffic-crash-trends-and-statistics/">https://workzonesafety.org/work-zone-data/work-zone-traffic-crash-trends-and-statistics/</a>.
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State DOTs may use a tiered approach to conduct engineering studies
for the type of work zones identified in this provision. Agencies may
develop their engineering analysis criteria based on factors such as
type of work, exposure to traffic, expected work zone level of effort,
worker protection needs, vehicle mix, time of day, geometry, and
location. For example, Caltrans established Guidelines on the Use of
Positive Work Zone Protection and Mitigation Measures,\7\ which provide
a detailed approach and weightage criteria to conduct a safety risk
assessment and engineering analysis to determine positive protection
and other mitigation measures for their work zones. This guidance
document also allows Caltrans to determine the required level of
positive protection based on the safety risk. The engineering analysis
may vary from a simple assessment of checklist items summarized in a
few paragraphs for smaller projects (e.g., short-term maintenance) to a
more thorough assessment and risk analysis of checklist items for
larger/complex projects (e.g., bridge approach slab replacement,
widening projects, and shoulder maintenance).
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\7\ <a href="https://dot.ca.gov/-/media/dot-media/programs/design/documents/final-dib-91_06282021_a11y.pdf">https://dot.ca.gov/-/media/dot-media/programs/design/documents/final-dib-91_06282021_a11y.pdf</a>.
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A commenter suggested six recognized serious hazards for
consideration of positive protection. This commenter also suggested
including a requirement for States to specify positive protection and
provide an associated pay item when serious hazards are foreseen or
encountered on a project unless an agency determines the same to be
impractical under applicable agency standards.
The serious hazards recognized by the commenter did not have any
changes compared to the NPRM language on example scenarios and
situations for positive protection consideration, except for ``Any
other situation not specifically outlined above which merits the use of
positive protection.'' The FHWA updated Sec. 630.1108(b)(4) to include
``within one lane width'' as an example for determining closeness of
workers to open travel lanes as a result of work operations. Section
630.1106(a) addresses the commenter's suggestion for agencies to
specify the use of positive protection in their policy whereas Sec.
630.1108(d)(2) addresses the suggestion for inclusion of pay items for
such specified positive protection.
A commenter opposed the omission of language associated with use of
temporary longitudinal barriers to protect workers. This commenter also
mentioned that the ``high anticipated operating speeds'' qualifier used
in this positive protection requirement regulation does not fully
comply with MAP-21.
As longitudinal barrier is one type of positive protection device,
the NPRM already covers these barriers in the engineering study
requirement. In addition, agencies can refer to 23 U.S.C. 112(g)(4) for
examples of positive protection devices, which include temporary
traffic barriers, crash cushions, and other strategies. As indicated
previously, the majority of fatal and injury work zone crashes occur on
high-speed roadways such as urban and rural interstates, rural
interstates, urban and rural principal arterials, and freeways/
expressways. These facility types generally operate at high speeds
(operating speeds of 45 mph or greater). The language adopted is
consistent with that used in MAP-21 Section 1405 for these situations.
Sec. 630.1108(b) Exposure Control Measures
One commenter provided input on this paragraph. Note that FHWA did
not propose any changes to existing language for this paragraph. The
[[Page 87292]]
commenter suggested updating the requirement from ``should'' to
``shall.''
The FHWA did not make any changes to this provision. The FHWA
retained the ``should'' condition to provide agencies with the
flexibility to explore exposure and other traffic control measures as
an alternative suite of options to preserve safety.
Sec. 630.1108(c) Other Traffic Control Measures
Two commenters provided comments in response to this paragraph. One
commenter supported the inclusion of AFADs as an exposure control
device. Another commenter recommended defining ``protection vehicles.''
The FHWA updated Sec. 630.1108(c)(22) from ``Protection vehicles''
to ``Protection or shadow vehicles used to protect workers and
equipment from impacts by errant vehicles'' to reflect the fact that
there is inconsistency in how agencies define and use these terms.
Sec. 630.1110 Maintenance of Temporary Traffic Control Devices.--
Footnotes
Six commenters provided input on this paragraph. Note that FHWA did
not propose any changes to existing language for this paragraph. All
six commenters recommended removing references to Illinois and
Minnesota Quality Standards for Work Zone Traffic Control Devices from
Sec. 630.1110 footnotes. They opposed the suggestion of guidelines
from other agencies in the footnotes and mentioned that agencies should
be able to establish their own maintenance of TTC device standards or
use ATSSA's ``Quality Guidelines for Temporary Traffic Control Devices
and Features.''
The FHWA encourages agencies to establish their TTC device
standards as applicable to their needs and policies. To this end, FHWA
removed references to agency-specific quality standards (Illinois DOT
and Minnesota DOT) and retained one of the commonly used industry
standards (ATSSA's Quality Guidelines for Temporary Traffic Control
Devices and Features) as an example.
Sec. 630.1112 Compliance Date
Nine commenters asked about the compliance timeframe for the
Subpart K final rule. The commenters asked for the effective date to be
minimum 12 months from the date of final rule publication.
In the anticipation that the rule is published in 2024, FHWA
proposed the effective date of December 31, 2025, which allows at least
12 months for States to update their policy in compliance with the
rule. The implementation date for the updated policy will be December
31, 2026.
Discussion Under 1 CFR Part 51
The FHWA is incorporating by reference the most current version of
the MUTCD. At the time of NPRM publication, the rulemaking to adopt the
11th edition of the MUTCD was still underway. The FHWA published the
11th edition of MUTCD in December 2023. To this end, FHWA updated the
references to incorporate the ``Manual on Uniform Traffic Control
Devices for Streets and Highways,'' 11th edition dated December 2023.
This document was developed by FHWA to define the standards used by
road managers nationwide to install and maintain traffic control
devices on all public streets, highways, bikeways, and private roads
open to public travel.
The document that FHWA is incorporating by reference is reasonably
available to interested parties, primarily State DOTs, local agencies,
and Tribal governments carrying out Federal-aid highway projects. This
documentrepresents the most recent refinements that have been formally
accepted and are currently in use by the transportation industry. The
document incorporated by reference is available on the docket of this
rulemaking and at the sources identified in the regulatory text below.
The specific standards are discussed in greater detail elsewhere in
this preamble.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
The FHWA has considered the impacts of this rule under Executive
Order (E.O.) 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and
Review, as amended by E.O. 14094 (``Modernizing Regulatory Review''),
and DOT's regulatory policies and procedures. The Office of Information
and Regulatory Affairs within the Office of Management and Budget (OMB)
has determined that this rulemaking is not a significant regulatory
action under section 3(f) of E.O. 12866. Accordingly, OMB has not
reviewed it under that E.O.
It is anticipated that the final rule would not be economically
significant for purposes of E.O. 12866. The final rule would not have
an annual effect on the economy of $200 million or more. The final rule
would not adversely affect in a material way the economy, any sector of
the economy, productivity, competition, or jobs. In addition, the
changes would not interfere with any action taken or planned by another
Agency and would not materially alter the budgetary impact of any
entitlements, grants, user fees, or loan programs.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), FHWA has evaluated the effects of this final rule on
small entities and has determined that it is not anticipated to have a
significant economic impact on a substantial number of 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.
However, the regulatory action only directly impacts State requirements
regarding work zone programmatic reviews, and otherwise would clarify
the characteristics of a significant project. State governments are not
included in the definition of small entity set forth in 5 U.S.C. 601.
Therefore, FHWA certifies 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).
This final rule would not result in the expenditure by State, local,
and Tribal governments, in the aggregate, or by the private sector, of
$168 million or more in any one year (2 U.S.C. 1532). In addition, the
definition of ``Federal Mandate'' in the Unfunded Mandates 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.
Executive Order 13132 (Federalism Assessment)
This final rule has been analyzed in accordance with the principles
and criteria contained in E.O. 13132, and FHWA has determined that this
final rule would not have sufficient federalism implications to warrant
the preparation of a federalism assessment. The FHWA also has
determined that this final rule would not preempt any State law or
State regulation or affect the States' ability to discharge traditional
State governmental functions.
[[Page 87293]]
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal Agencies must obtain approval from OMB for each
collection of information they conduct, sponsor, or require through
regulations. The FHWA has determined that the rule does not contain
collection of information requirements for the purposes of the PRA.
National Environmental Policy Act
The FHWA has analyzed this final rule pursuant to the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and
has determined that it is categorically excluded under 23 CFR
771.117(c)(20), which applies to the promulgation of rules,
regulations, and directives. Categorically excluded actions meet the
criteria for categorical exclusions under the Council on Environmental
Quality regulations and under 23 CFR 771.117(a) and normally do not
require any further NEPA approvals by FHWA. The FHWA does not
anticipate any adverse environmental impacts from this final rule.
Executive Order 13175 (Tribal Consultation)
The FHWA has analyzed this regulatory action in accordance with the
principles and criteria contained in E.O. 13175, ``Consultation and
Coordination with Indian Tribal Governments.'' The purpose of the
regulatory action is to improve motorist, worker, and other vulnerable
road user safety and mobility on Federal-aid highway projects. The FHWA
believes that the regulatory action 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. Therefore, the funding and consultation
requirements of E.O. 13175 do not apply and a Tribal summary impact
statement is not required.
Executive Order 12898 (Environmental Justice)
The E.O. 12898 requires that each Federal Agency make achieving
environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and
activities on minorities and low-income populations. The FHWA has
determined that this final rule does not raise any environmental
justice issues.
Rulemaking Summary, 5 U.S.C. 553(b)(4)
As required by 5 U.S.C. 553(b)(4), a summary of this rule can be
found in the Abstract section of the Department's Unified Agenda entry
for this rulemaking at [<a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2125-AG05">https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2125-AG05</a>].
Regulation Identifier Number
A Regulation Identifier 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
twice 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, Incorporation by reference, Reporting and
recordkeeping requirements, Traffic regulations.
Issued under authority delegated in 49 CFR 1.81 and 1.85.
Kristin R. White,
Acting Administrator, Federal Highway Administration.
In consideration of the foregoing, FHWA amends Title 23, Code of
Federal Regulations, Part 630, as set forth below:
PART 630--PRECONSTRUCTION PROCEDURES
0
1. The authority citation for Part 630 is revised to read as follows:
Authority: 23 U.S.C. 106, 109, 112, 115, 315, 320, and 402(a);
Sec. 1110, 1501, and 1503 of Pub. L. 109-59, 119 Stat. 1144; Pub. L.
105-178, 112 Stat. 193; Pub. L. 104-59, 109 Stat. 582; Pub. L. 97-
424, 96 Stat. 2106; Pub. L. 90-495, 82 Stat. 828; Pub. L. 85-767, 72
Stat. 896; Pub. L. 84-627, 70 Stat. 380; 23 CFR 1.32 and 49 CFR 1.81
and 1.85, and Pub. L. 112-141, 126 Stat. 405, sections 1303 and
1405.
Subpart J--Work Zone Safety and Mobility
0
2. Revise subpart J of part 630 to read as follows:
Subpart J--Work Zone Safety and Mobility
Sec.
630.1002 Purpose.
630.1004 Definitions and explanation of terms.
630.1006 Work zone safety and mobility policy.
630.1008 State-level processes and procedures.
630.1010 Significant projects.
630.1012 Project-level procedures.
630.1014 Implementation.
630.1016 Compliance date.
630.1018 Incorporation by reference.
Sec. 630.1002 Purpose.
Work zones directly impact the safety and mobility of road users
and highway workers. These safety and mobility impacts are exacerbated
by an aging highway infrastructure and growing congestion in many
locations. Addressing these safety and mobility issues requires
considerations that start early in project development and continue
through project completion. Part 6 of the Manual on Uniform Traffic
Control Devices for Streets and Highways (MUTCD) (incorporated by
reference, see Sec. 630.1018) sets forth basic principles and
prescribes standards for the design, application, installation, and
maintenance of traffic control devices for highway and street
construction, maintenance operation, and utility work. In addition to
the provisions in the MUTCD, there are other actions that could be
taken to further help mitigate the safety and mobility impacts of work
zones. This subpart establishes requirements and provides guidance for
systematically addressing the safety and mobility impacts of work
zones, and for developing strategies to help manage these impacts on
Federal-aid highway projects.
Sec. 630.1004 Definitions and explanation of terms.
As used in this subpart:
Agency means a State or local highway agency or authority that
receives Federal-aid highway funding.
Highway workers include, but are not limited to, personnel of the
contractor, subcontractor, agency, utilities, and law enforcement,
performing work within the right-of-way of a transportation facility.
Mobility is the ability to move from place to place and is
significantly dependent on the availability of transportation
facilities and on system operating conditions. With specific reference
to work zones, mobility pertains to moving road users efficiently
through or around a work zone area with minimum delay compared to
baseline travel when no work zone is present, while not compromising
the safety of highway workers or road users. The commonly used
performance measures for the assessment of mobility include delay,
speed, travel time, and queue lengths.
Safety is a representation of the level of exposure to potential
hazards for users of transportation facilities and
[[Page 87294]]
highway workers. With specific reference to work zones, safety refers
to minimizing potential hazards to road users in the vicinity of a work
zone and highway workers at the work zone interface with traffic. The
commonly used performance measures for highway work zone safety are the
number of crashes or the consequences of crashes (fatalities and
injuries) at a given location or along a section of highway during a
period of time. In terms of highway worker safety performance measures,
the number of highway worker fatalities and injuries at a given
location or along a section of highway during a period of time are
commonly used measures.
State refers to a State department of transportation.
Transportation management plan (TMP) consists of strategies to
manage the work zone impacts of a project. Its scope, content, and
degree of detail may vary based upon the agency's work zone policy and
the agency's understanding of the expected work zone impacts of the
project. Refer to Sec. 630.1010(d) and Sec. 630.1012(b) for more
information on a TMP and its components.
Work zone is an area of a highway with construction, maintenance,
or utility work activities. A work zone is typically marked by one or
more of the following: signs, channelizing devices, barriers, pavement
markings, or work vehicles. It extends from the first warning sign or
high intensity rotating, flashing, oscillating, or strobe lights on a
vehicle to the END ROAD WORK sign or the last temporary traffic control
(TTC) device. See MUTCD, Part 6, ``Temporary Traffic Control''
(incorporated elsewhere in this subpart).
Work zone crash is a crash that occurs in or related to a
construction, maintenance, or utility work zone, whether or not workers
were actually present at the time of the crash. ``Work zone-related''
crashes may also include crashes involving motor vehicles slowed or
stopped because of the work zone, even if the first harmful event
occurred before the first warning sign. See ``Model Minimum Uniform
Crash Criteria Guideline'' (MMUCC), 5thEd. (Electronic), 2017, produced
by NHTSA. Available at the following website: <a href="https://www.nhtsa.gov/mmucc-1">https://www.nhtsa.gov/mmucc-1</a>.
Work zone impacts refer to work zone-induced deviations from the
normal range of transportation system safety and mobility. The extent
of the work zone impacts may vary based on factors such as: road
classification and geometrics; area type (urban, suburban, and rural);
traffic and travel characteristics (volumes, speeds, vehicle mix and
classification, etc.); type of work being performed; type of temporary
traffic control; distance between workers and traffic; availability of
escape paths for workers; time of day/night; and complexity and
duration of the project. These impacts may extend beyond the physical
location of the work zone itself, including upstream or downstream of
the work zone location, other highway corridors, other modes of
transportation, and/or the regional transportation network.
Work zone programmatic review is a data-driven, systematic, and
holistic analysis that uses quantitative and qualitative data from
different sources to assess the safety and mobility performance of work
zones under a State's jurisdiction in order to identify improvements to
that agency's work zone processes and procedures.
Sec. 630.1006 Work zone safety and mobility policy.
(a) 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, or guidance, and may vary based on the characteristics and
expected work zone impacts of individual projects or classes of
projects.
(b) At a minimum, the policy shall identify safety and mobility
performance measures that will be used to manage work zone performance.
Examples of such performance measures include number of fatal and
injury crashes occurring in a work zone, percent of projects that
exceed a preestablished crash rate in the work zone, number of highway
worker fatalities and injuries experienced, highway worker fatality and
injury rate per hours worked, percent of projects that experience
queues above a predefined threshold, and percent of time when speeds in
a work zone drop below a predefined threshold.
(c) The States should institute this policy using a multi-
disciplinary team and in cooperation with the Federal Highway
Administration (FHWA). The States are encouraged to implement this
policy for non-Federal-aid projects as well.
Sec. 630.1008 State-level processes and procedures.
(a) General. This section consists of State-level processes and
procedures for States to implement and sustain their respective work
zone safety and mobility policies. State-level processes and
procedures, data and information resources, training, and periodic
evaluation enable a systematic approach for addressing and managing the
safety and mobility impacts of work zones.
(b) Work zone assessment and management procedures. States shall
develop and implement systematic procedures to assess likely work zone
impacts to all highway workers and anticipated road users in project
development and to manage safety and mobility impacts occurring during
project implementation. The scope of these procedures shall be based on
the project characteristics.
(c) Work zone data. States shall use field observations, available
work zone crash data, available safety surrogate data, available
operational information, and available exposure data to monitor and
manage work zone impacts for specific projects during implementation
and to perform its work zone programmatic reviews. Examples of crash
data include fatalities, injuries, and crashes; examples of safety
surrogate data include speed differentials, hard braking, and other
data from connected and autonomous vehicles; examples of available
operational information include speeds, travel times, queue length, and
duration; and examples of available exposure data include number of
projects, number and length of lane closures, and vehicle-miles
traveled through work zones.
(d) Training. States shall require that personnel involved in the
development, design, implementation, operation, inspection, and
enforcement of work-zone-related transportation management and traffic
control be trained, appropriate to the job decisions each individual is
required to make. States shall require periodic training updates that
reflect changing industry practices and State processes and procedures.
(e) Work zone programmatic review. In order to assess the
effectiveness of work zone safety and mobility processes and
procedures, States shall perform a work zone programmatic review every
5 years and share that review with FHWA by the end of the 5-year review
period.
(1) The work zone programmatic review shall include a data-driven
assessment of the safety and mobility performance of the State's work
zones. At a minimum, this review shall include a representative sample
of the State's significant work zones over the 5-year period being
reviewed. The approach used for selecting the representative projects
shall be documented and should be based on factors such as land use
(urban and rural locations), roadway
[[Page 87295]]
type, type of work zone, and extent of the work zone impacts.
(2) Each programmatic review shall include an assessment of the
work zone safety and mobility performance occurring since the last
review was performed, systematic identification and assessment of the
States' work zone management processes and procedures to be improved,
action items to be taken to achieve improvement, State divisions or
offices responsible for implementing the actions, and estimated
timeline for implementation.
(3) States shall use available crash data, available safety
surrogate data, available operational data, and the performance
measures specified in their work zone policy to conduct the assessment.
Section 630.1008(c) provides example performance measures for each data
source listed in this section. To ensure assessment of the safety and
mobility performance of their work zones on a continuous basis, States
shall monitor performance annually.
(4) The work zone programmatic review shall include examination of
efforts across State divisions or offices affecting work zone safety
and mobility management, including but not limited to: project
planning, project design, project implementation, maintenance
activities, transportation operations and management, permitting (e.g.,
utilities, oversize/overweight, lane closures, sidewalk closures),
training, and public information and outreach.
(5) Appropriate personnel who represent the project development and
implementation stages and the different offices within the State and
FHWA should participate in this review. Other non-State stakeholders
may also be included in this review, as appropriate.
Sec. 630.1010 Significant projects.
(a) A significant project is one that, alone or in combination with
other concurrent projects nearby, is anticipated to cause sustained
work zone impacts (as defined in Sec. 630.1004) that are greater than
what is considered tolerable based on State policy and engineering
judgment.
(b) The applicability of the provisions in Sec. Sec.
630.1012(b)(2) and 630.1012(b)(3) is dependent upon whether a project
is determined to be significant. The State shall identify upcoming
projects that are expected to be significant. This identification of
significant projects should be done as early as possible in the project
delivery and development process, and in cooperation with FHWA. The
State's work zone policy provisions, the project's characteristics, and
the magnitude and extent of the anticipated work zone impacts should be
considered when determining if a project is significant or not.
(c) All Interstate system projects within the boundaries of a
designated Transportation Management Area that require intermittent or
continuous lane closures for 3 or more consecutive days shall be
considered as significant projects.
(d) For an Interstate system project or categories of Interstate
system projects that are classified as significant through the
application of the provisions in paragraph (c) of this section but in
the judgment of the State do not cause sustained work zone impacts, the
State may request from FHWA an exception to Sec. Sec. 630.1012(b)(2)
and 630.1012(b)(3). The FHWA may grant exceptions to these provisions
based on the State's ability to show that the specific Interstate
system project or categories of Interstate system projects do not have
sustained work zone impacts.
(e) Non-interstate system projects with less than 3 consecutive
days of intermittent or continuous lane closures do not require the
transportation operations (TO) or public information and outreach (PIO)
components of a TMP (as described in Sec. 630.1012(b)).
Sec. 630.1012 Project-level procedures.
(a) Scope. This section provides guidance and establishes
procedures for States to manage the work zone impacts of individual
projects.
(b) Transportation Management Plan. For significant projects (as
described in Sec. 630.1010), the State shall develop a TMP that
consists of a TTC plan and addresses both TO and PIO components. For
individual projects or classes of projects that the State determines to
have less than significant work zone impacts, the TMP may consist only
of a TTC plan. States are encouraged to consider TO and PIO issues for
all projects.
(1) A TTC plan describes TTC measures to be used for facilitating
road users through a work zone or an incident area. The TTC plan shall
be consistent with the provisions under Part 6 of the MUTCD
(incorporated by reference, see Sec. 630.1018). In developing and
implementing the TTC plan, pre-existing roadside safety hardware shall
be maintained at an equivalent or better level than existed prior to
project implementation. The scope of the TTC plan is determined by the
project characteristics and the traffic safety and control requirements
identified by the State for that project. The TTC plan shall either be
a reference to specific TTC elements in the MUTCD, approved standard
TTC plans, State transportation department TTC manual, or be designed
specifically for the project.
(2) The TO component of the TMP shall include the identification of
strategies that the State will use to mitigate impacts of the work zone
on the operation and management of the transportation system within the
work zone impact area. Typical TO strategies may include, but are not
limited to, demand management, corridor/network management, safety
management and enforcement, and work zone traffic management. The scope
of the TO component should be determined by the project characteristics
and the transportation operations and safety strategies identified by
the State.
(3) The PIO component of the TMP shall include communications
strategies that seek to inform affected road users, the general public,
area residences and businesses, and appropriate public entities about
the project, the expected work zone impacts, and the changing
conditions on the project. This may include traveler information
strategies. The scope of the PIO component should be determined by the
project characteristics and the public information and outreach
strategies identified by the State. Public information and outreach
should be provided through methods best suited for the project, and may
include, but not be limited to, information on the project
characteristics, expected impacts, closure details, and commuter
alternatives.
(4) States should develop and implement the TMP in sustained
consultation with stakeholders (e.g., other transportation agencies,
railroad agencies/operators, transit providers, freight movers, utility
suppliers, police, fire, emergency medical services, schools, business
communities, and regional transportation management centers).
(c) Inclusion of TMP in Plans, Specification, and Estimates. The
Plans, Specifications, and Estimates (PS&E) shall include either a TMP
or provisions for contractors to develop a TMP at the most appropriate
project phase as applicable to the State's chosen contracting
methodology for the project. A contractor-developed TMP shall be
subject to the approval of the State and shall not be implemented
before it is approved by the State.
(d) Inclusion of Pay Item Provisions in Plans, Specification, and
Estimates. The PS&Es shall include appropriate pay item provisions for
implementing the TMP, either through method- or performance-based
specifications.
(e) Responsible persons. The State and the contractor shall each
designate a
[[Page 87296]]
trained person, as specified in Sec. 630.1008(d), at the project level
who has the primary responsibility and sufficient authority for
implementing the TMP and other safety and mobility aspects of the
project.
Sec. 630.1014 Implementation.
Each State shall work in cooperation with FHWA in the
implementation of its policies and procedures to improve work zone
safety and mobility. At a minimum, this shall involve an FHWA review of
conformance of the State's policies and procedures with this regulation
and reassessment of the State's implementation of its procedures at
appropriate intervals. Each State is encouraged to address
implementation of this regulation in its stewardship agreement with
FHWA.
Sec. 630.1016 Compliance date.
States shall comply with all the provisions of this rule no later
than December 31, 2026. The next work zone programmatic review will be
due December 31, 2030. For projects that are in the later stages of
development at or about the compliance date, and if it is determined
that the delivery of those projects would be significantly impacted as
a result of this rule's provisions, States may request variances for
those projects from FHWA on a project-by-project basis.
Sec. 630.1018 Incorporation by reference.
Certain material is incorporated by reference into this subpart
with the approval of the Director of the Federal Register under 5
U.S.C. 552(a) and 1 CFR part 51. All approved incorporation by
reference (IBR) material is available for inspection at FHWA and at the
National Archives and Records Administration (NARA). Contact FHWA at:
Federal Highway Administration, Office of Transportation Operations,
1200 New Jersey Avenue SE, Washington, DC 20590; phone: (202) 366-8043;
website: <a href="http://ops.fhwa.dot.gov/contactus.htm">ops.fhwa.dot.gov/contactus.htm</a>. For information on the
availability of this material at NARA, visit <a href="http://www.archives.gov/federal-register/cfr/ibr-locations">www.archives.gov/federal-register/cfr/ibr-locations</a> or email <a href="/cdn-cgi/l/email-protection#86e0f4a8efe8f5f6e3e5f2efe9e8c6e8e7f4e7a8e1e9f0"><span class="__cf_email__" data-cfemail="ddbbaff3b4b3aeadb8bea9b4b2b39db3bcafbcf3bab2ab">[email protected]</span></a>. The
material may be obtained from the following sources:
(a) FHWA, Federal Highway Administration, 1200 New Jersey Avenue
SE, Washington, DC 20590; phone: (202) 366-1993; website:
<a href="http://mutcd.fhwa.dot.gov">mutcd.fhwa.dot.gov</a>.
(1) Manual on Uniform Traffic Control Devices for Streets and
Highways (MUTCD), 11th Edition, FHWA, December 2023; approved for
Sec. Sec. 630.1002; 630.1012.
(2) [Reserved]
(b) [Reserved]
Subpart K--Temporary Traffic Control Devices
0
3. Revise subpart K of part 630 to read as follows:
Subpart K--Temporary Traffic Control Devices
Sec.
630.1102 Purpose.
630.1104 Definitions and explanation of terms.
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.
630.1112 Compliance date.
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; 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 and explanation of terms.
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.
Engineering study means the analysis and evaluation of available
pertinent information, and the application of appropriate principles,
provisions, and practices for the purpose of determining the choice and
application of work zone positive protection devices, exposure control
measures, or other traffic control measures to safely manage work
zones.
Positive protection devices means devices that contain or redirect
vehicles and meet applicable industry crashworthiness evaluation
criteria. Industry crashworthiness evaluation criteria are not
regulatory, and use of them is voluntary and not required by law.
Sec. 630.1106 Policy and procedures for work zone safety management.
(a) Each agency's policy and processes, procedures, or guidance for
the systematic consideration and management of work zone impacts, to be
established in accordance with Sec. 630.1006, shall include the
consideration and management of road user and worker safety on Federal-
aid highway projects. These processes, procedures, or guidance, to be
developed in cooperation with the Federal Highway Administration
(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, or guidance should be based on
consideration of standards or guidance contained in the Manual on
Uniform Traffic Control Devices for Streets and Highways (MUTCD), 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 developed from an engineering study
that indicate when positive protection devices or other strategies and
approaches are to be used based on project and highway characteristics
and factors. An engineer,
[[Page 87297]]
or an individual working under the supervision of an engineer shall
perform an engineering study through the application of procedures and
criteria established by the engineer. The person conducting the
engineering study shall document such study. Benefit-cost analyses,
decision matrices, decision tree analysis, or other appropriate
engineering decision-making tools may be used in the engineering study.
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 operating conditions including traffic volume,
vehicle mix, and speeds through the work zone;
(3) Anticipated traffic safety impacts;
(4) Type of work (as related to worker exposure and crash risks);
(5) Distance between traffic and workers, and extent of worker
exposure;
(6) Escape paths available for workers to avoid a vehicle intrusion
into the work space;
(7) Time of day (e.g., night work);
(8) Work area restrictions (including impact on worker exposure);
(9) Consequences from/to road users resulting from roadway
departure;
(10) Potential hazard to workers and road users presented by device
itself and during device placement and removal;
(11) Geometrics that may increase crash risks (e.g., poor sight
distance, sharp curves);
(12) Access to/from work space;
(13) Roadway classification; and
(14) Impacts on project cost and duration.
(c) Each agency, in partnership with FHWA, shall develop a policy
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, 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 agencies 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 Sec.
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. At a minimum, agencies shall use
positive protection devices in work zones with high anticipated
operating speeds that provide workers no means of escape from motorized
traffic intruding into the workspace unless an engineering study
determines otherwise. Positive protection devices shall be considered
in other 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 (e.g., within one lane
width) 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 or use of automated flagger
assistance devices (AFADs);
(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 or variable speed limits);
(15) Law enforcement;
(16) Speed Safety Cameras (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;
(21) Temporary traffic signals.
(22) Protection or shadow vehicles used to protect workers and
equipment from impacts by errant vehicles; and
(23) Intelligent Transportation Systems (ITS) and other advanced
technology solutions and strategies.
(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
[[Page 87298]]
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 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
programwide 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 guidance established in accordance with Sec. 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 workspace, based on individual project characteristics and factors.
(f) Payment for traffic control. Consistent with the requirements
of Sec. 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.
\1\ ATSSA's Quality Guidelines for Temporary Traffic Control
Devices and Features 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:
[[Page 87299]]
<a href="https://www.atssa.com/resource/quality-guidelines/">https://www.atssa.com/resource/quality-guidelines/</a>. Similar
guidelines are available from various State highway agencies.
Sec. 630.1102 Compliance Date.
States shall update their policy no later than December 31, 2025,
and implement the policy no later than December 31, 2026. For projects
that are in the later stages of development at or about the compliance
date, and if it is determined that the delivery of those projects would
be significantly impacted as a result of this rule's provisions, States
may request variances for those projects from FHWA on a project-by-
project basis.
[FR Doc. 2024-25065 Filed 10-31-24; 8:45 am]
BILLING CODE 4910-22-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.