[Federal Register Volume 69, Number 174 (Thursday, September 9, 2004)]
[Rules and Regulations]
[Pages 54562-54572]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-20340]



[[Page 54562]]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 630

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


Work Zone Safety and Mobility

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: The FHWA amends its regulation that governs traffic safety and 
mobility in highway and street work zones. The changes to the 
regulation will facilitate comprehensive consideration of the broader 
safety and mobility impacts of work zones across project development 
stages, and the adoption of additional strategies that help manage 
these impacts during project implementation. These provisions will help 
State Departments of Transportation (DOTs) meet current and future work 
zone safety and mobility challenges, and serve the needs of the 
American people.

DATES: Effective Date: October 12, 2007.
    The incorporation by reference of certain publications listed in 
this rule is approved by the Director of the Federal Register as of 
October 12, 2007.

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

SUPPLEMENTARY INFORMATION:

Electronic Access

    This document and all comments received by the U.S. DOT Docket 
Facility, Room PL-401, may be viewed through the Docket Management 
System (DMS) at http://dms.dot.gov. The DMS is available 24 hours each 
day, 365 days each year. Electronic submission and retrieval help and 
guidelines are available under the help section of this Web site.
    An electronic copy of this document may be downloaded by using a 
computer, modem, and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may reach the Office of the Federal Register's 
home page at: http://www.archives.gov and the Government Printing 
Office's Web site at: http://www.access.gpo.gov/nara.

Background

History

    Pursuant to the requirements of Section 1051 of the Intermodal 
Surface Transportation Efficiency Act of 1991 (ISTEA), (Pub. L. 102-
240, 105 Stat. 1914; Dec. 18, 1991), the FHWA developed a work zone 
safety program to improve work zone safety at highway construction 
sites. The FHWA implemented this program through non-regulatory action 
by publishing a notice in the Federal Register on October 24, 1995 (60 
FR 54562). This notice established the National Highway Work Zone 
Safety Program (NHWZSP) to enhance safety at highway construction, 
maintenance, and utility sites. In this notice, the FHWA indicated the 
need to update its regulation on work zone safety (23 CFR 630, Subpart 
J).
    As a first step in considering amendments to its work zone safety 
regulation, the FHWA published an advance notice of proposed rulemaking 
(ANPRM) on February 6, 2002, at 67 FR 5532. The ANPRM solicited 
information on the need to amend the regulation to better respond to 
the issues surrounding work zones, namely the need to reduce recurrent 
roadwork, the duration of work zones, and the disruption caused by work 
zones.
    The FHWA published a notice of proposed rulemaking (NPRM) on May 7, 
2003, at 68 FR 24384. The regulations proposed in the NPRM were 
intended to facilitate consideration and management of the broader 
safety and mobility impacts of work zones in a more coordinated and 
comprehensive manner across project development stages, and the 
development of appropriate strategies to manage these impacts. We 
received a substantial number of responses to the NPRM. While most of 
the respondents agreed with the intent and the concepts proposed in the 
NPRM, they recommended that the proposed provisions be revised and 
altered so as to make them practical for application in the field. The 
respondents 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. Respondents also commented 
that the documentation requirements in the proposal would impose undue 
time and resource burdens on State DOTs.
    In order to address the comments received in response to the NPRM, 
the FHWA issued a supplemental notice of proposed rulemaking (SNPRM) on 
May 13, 2004, at 69 FR 26513. The SNPRM addressed the comments related 
to flexibility and scalability of provisions, eliminated ambiguous 
terms from the language, and reduced the documentation requirements. We 
received several supportive comments in response to the SNPRM. Most 
respondents noted that the SNPRM addressed the majority of their 
concerns regarding the originally proposed rule. However, they did 
offer additional comments regarding specific areas of concern. In the 
final rule issued today, the FHWA has addressed all the comments 
received in response to the SNPRM that are within the scope of this 
rulemaking
    The regulation addresses the changing times of more traffic, more 
congestion, greater safety issues, and more work zones. The regulation 
is broader so as to recognize the inherent linkage between safety and 
mobility and to facilitate systematic consideration and management of 
work zone impacts. The regulation can advance the state of the practice 
in highway construction project planning, design, and delivery so as to 
address the needs of the traveling public and highway workers. The key 
features of the final rule are as follows:
     A policy driven focus that will institutionalize work zone 
processes and procedures at the agency level, with specific language 
for application at the project level.
     A systems engineering approach that includes provisions to 
help transportation agencies address work zone considerations starting 
early in planning, and progressing through project design, 
implementation, and performance assessment.
     Emphasis on addressing the broader impacts of work zones 
to develop transportation management strategies that address traffic 
safety and control through the work zone, transportation operations, 
and public information and outreach.
     Emphasis on a partner driven approach, whereby 
transportation agencies and the FHWA will work together towards 
improving work zone safety and mobility.
     Overall flexibility, scalability, and adaptability of the 
provisions, so as to customize the application of the regulations 
according to the needs of individual agencies, and to meet the needs of 
the various types of highway projects.

[[Page 54563]]

Summary Discussion of Comments Received in Response to the SNPRM

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

Profile of Respondents

    We received a total of 33 responses to the docket. Out of the 33 
total respondents, 27 were State DOTs; 4 were trade associations; and 2 
provided comments as private individuals. The 4 trade associations were 
namely, the Laborers' Health and Safety Fund of North America (LHSFNA), 
the American Traffic Safety Services Association (ATSSA), the 
Associated General Contractors (AGC) of America, and the Institute of 
Transportation Engineers (ITE). We classified the American Association 
of State Highway and Transportation Officials (AASHTO) as a State DOT 
because they represent State DOT interests. The AASHTO provided a 
consolidated response to the SNPRM on behalf of its member States. 
Several State DOTs provided their comments individually.
    The respondents represented a cross-section of job categories, 
ranging from all aspects of DOT function, to engineering/traffic/
safety/design, to construction and contracting.

Overall Position of Respondents

    We received several supportive comments in response to the SNPRM. 
Most State DOTs, the AASHTO, and all private sector respondents greatly 
appreciated the FHWA's continued effort to receive input during the 
development of the proposed rule, and particularly in issuing the 
SNPRM. Most respondents also noted that the SNPRM addressed the 
majority of their concerns regarding the originally proposed rule.
    The respondents also offered comments on specific areas of concern, 
and recommended changes to improve the rule's language. The State DOTs 
and the AASHTO offered comments, which relate to their continued 
concern that the rule allow for adequate flexibility and scalability 
while limiting unintended liability and cost. Private sector 
respondents also offered specific 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.
    The level of support for the SNPRM is indicated by the fact that 23 
of the 33 respondents expressed overall support for the provisions 
proposed in the SNPRM. It is to be noted that these respondents were 
not necessarily supportive of all the provisions, but rather that, 
their overall position on the SNPRM was supportive. Many of these 
respondents provided suggestions on modifications and revised language 
for specific provisions as they deemed appropriate. Of the 23 
respondents who were supportive, 21 represented State DOTs and 2 
represented trade associations.
    Of the remaining respondents, 2 opposed the issuance of the rule, 2 
agreed with the intent and the concepts but did not agree with many of 
the mandatory provisions, and the remaining 6 did not expressly 
indicate their overall position.
    One of the two respondents who opposed the issuance of the rule was 
the Iowa DOT. It expressed that it supports the goals of improved 
safety and reduced congestion, but opposes the proposed rule as it 
would not necessarily help achieve these goals. It believes that its 
current work zone policies are sufficient to provide for a high 
standard of safety and mobility. It noted that the rule is not flexible 
enough, and that it would require significant commitments from its 
limited staff.
    The other respondent that opposed the rule was the Kansas DOT. It 
suggested that the FHWA retract the rule and, instead, issue the 
information on work zone safety and mobility as a guide for use by 
State DOTs. It believes that encouraging State DOTs to review and 
improve their current practices on work zone safety and mobility, 
through closer contact with FHWA and other partners, would be more 
effective than mandating specific processes. It also suggested changes 
to specific sections, and recommended that the FHWA implement the 
AASHTO's recommendations, if retraction of the rule was not an option.

Section-by-Section Analysis of SNPRM Comments and FHWA Response

Section 630.1002 Purpose

    There were no major comments in response to this section. The 
overall sentiment of the respondents was supportive of the language as 
proposed in the SNPRM, and therefore, we will retain the language as 
proposed in the SNPRM.

Section 630.1004 Definitions and Explanation of Terms

    Most respondents were supportive of this section. Some respondents 
offered specific comments on some of the definitions proposed in the 
SNPRM. They are discussed as follows:
     Definition for ``Mobility.'' The AGC of America remarked 
that the definition for mobility seems to imply a greater emphasis on 
mobility than on safety. It recommended that we change the second 
sentence of the definition to imply that work zone mobility should be 
achieved without compromising the safety of highway workers or road 
users. To address this comment the FHWA has amended the definition by 
adding the words, ``while not compromising the safety of highway 
workers or road users'' at the end of the second sentence. In addition, 
the word ``smoothly'' after the phrase, ``mobility pertains to moving 
road users,'' has been replaced by the word ``efficiently.''
     Definition for ``Safety.'' The AASHTO and several DOTs 
recommended that the term, ``road worker(s)'' be changed to ``highway 
worker(s)'' for the sake of consistency. We agree with this 
observation, and made this change. The Georgia DOT recommended that the 
term ``danger'' be changed to ``potential hazards'' to reduce potential 
liability. We agree with this recommendation, and therefore, replaced 
the word ``danger'' with ``potential hazards'' in the first sentence. 
In the second sentence, we rephrased ``minimizing the exposure to 
danger of road users'' with ``minimizing potential hazards to road 
users.''
     Definition for ``Temporary Traffic Control (TTC) Plan.'' 
We moved the definition for the TTC plan from Sec.  630.1004, 
Definitions and Explanation of Terms, to Sec.  630.1012(b), 
Transportation Management Plan (TMP), where the requirements for the 
TTC plan are laid out. This is in response to a comment from the 
Georgia DOT that the language under the TTC plan section of Sec.  
630.1012(b) was not consistent with the Manual On Uniform Traffic 
Control Devices (MUTCD).\1\ Since the definition for the TTC plan was 
referenced from the MUTCD, it was removed from the definitions section 
and placed in Sec.  630.1012(b)(1), where TTC plans are discussed.
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    \1\ The MUTCD is approved by the FHWA and recognized as the 
national standard for traffic control on all public roads. It is 
incorporated by reference into the Code of Federal Regulations at 23 
CFR part 655. It is available on the FHWA's Web site at http://
mutcd.fhwa.dot.gov and is available for inspection and copying at 
the FHWA Washington, DC Headquarters and all FHWA Division Offices 
as prescribed at 49 CFR part 7.
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     Definitions for ``Work Zone'' and ``Work Zone Crash.'' 
There were several comments recommending changes to certain terminology 
in both these definitions. For example, the AASHTO

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and several DOTs suggested that the term, ``traffic units,'' in the 
first sentence of the Work Zone Crash definition be changed to ``road 
users.'' However, we have decided not to adopt the changes in order to 
maintain consistency with other industry accepted sources--the 
definition for ``work zone'' being referenced from the MUTCD, and that 
for ``work zone crash,'' from the Model Minimum Uniform Crash Criteria 
Guideline (MMUCC).\2\
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    \2\ ``Model Minimum Uniform Crash Criteria Guideline'' (MMUCC), 
2d Ed. (Electronic), 2003, produced by National Center for 
Statistics and Analysis, National Highway Traffic Safety 
Administration (NHTSA). Telephone 1-(800)-934-8517. Available at the 
URL: http://www-nrd.nhtsa.dot.gov. The NHTSA, the FHWA, the Federal 
Motor Carrier Safety Administration (FMCSA), and the Governors 
Highway Safety Association (GHSA) sponsored the development of the 
MMUCC Guideline which recommends voluntary implementation of the 111 
MMUCC data elements and serves as a reporting threshold that 
includes all persons (injured and uninjured) in crashes statewide 
involving death, personal injury, or property damage of $1,000 or 
more. The Guideline is a tool to strengthen existing State crash 
data systems.
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Section 630.1006 Work Zone Safety and Mobility Policy

    The majority of the respondents supported the proposed language in 
this section. The AASHTO and several DOTs recommended the removal of 
the second clause in the second to last sentence, ``representing the 
different project development stages.'' These respondents believe that 
this change would grant the States maximum flexibility to implement the 
most appropriate team for each project. The FHWA agrees with this 
observation and has deleted the phrase in question.
    The ATSSA recommended that we specifically include or encourage the 
participation of experienced industry professionals in the multi-
disciplinary team referenced in the second to last sentence. The FHWA 
believes that States will solicit the participation of industry 
representatives if required for the specific project under 
consideration.
    The Kansas DOT commented that the use of the words ``policy'' and 
``guidance'' in the same sentence could be confusing, as policies 
usually carry more weight than guidance. This comment refers to the 
second sentence, the first part of which reads, ``This policy may take 
the form of processes, procedures, and/or guidance * * * '' The FHWA 
disagrees because we believe that policies do not necessarily have to 
be mandates. For example, it may be a State DOT policy that it 
``shall'' consider and manage work zone impacts of projects, but the 
actual methods to do so may be provided as guidance to its district/
region offices which may vary according to the different types of 
projects that they encounter. The underlying purpose of the work zone 
safety and mobility policy section is to require State DOTs to 
implement a policy for the systematic consideration and management of 
work zone impacts, so that such consideration and management becomes a 
part of the mainstream of DOT activities. How a State chooses to 
implement the policy is its prerogative--and it may take the form of 
processes, procedures, and/or guidance, and may vary upon the work zone 
impacts of projects.
    The Virginia DOT commented on the second sentence of this section 
that it does not agree with the ``shall'' requirement to address work 
zone impacts through the various stages of project development and 
implementation. It justified its objection by saying that ``addressing 
work zone impacts through the various stages of project development and 
implementation'' will not work from a practical standpoint due to 
unforeseen field conditions and circumstances, and that the shall 
clause could result in potential litigation. The FHWA disagrees with 
the Virginia DOT. We would like to mention that the second sentence by 
itself, when taken out of context, doesn't quite convey the message of 
the entire section. The preceding sentence and the following sentence 
need to be considered in interpreting what the second sentence means. 
The first sentence requires that State DOTs implement a policy for the 
systematic consideration and management of work zone impacts on all 
Federal-aid highway projects. The second sentence further qualifies the 
term ``systematic'' by saying that the policy shall address work zone 
impacts throughout the various stages of project development and 
implementation--this implies that the consideration and management of 
work zone impacts progresses through the various stages. The third 
sentence further clarifies that the methods to implement this policy 
may not necessarily be absolute requirements, but rather be implemented 
through guidance. Further, the third sentence provides a more specific 
delineator by saying that the implementation of the policy may vary 
based upon the characteristics and expected work zone impacts of 
individual projects or classes of projects.

Section 630.1008 Agency-Level Processes and Procedures

    The AASHTO and several State DOTs remarked that there is 
inconsistency with the use of ``Agency'' and ``State Agency,'' and that 
this needs to be resolved. Further, a few State DOTs sought 
clarification as to whether ``agency'' applies to the State 
transportation agency or other entities that might be involved in the 
project development process (i.e., county and/ or local governments and 
authorities). In response to this comment, we changed all instances of 
the terms ``State Agency'' and ``Agency'' in the entire subpart to the 
term ``State,'' as referenced in the rule.
    Section 630.1008(a), Section Introduction. There were no specific 
comments in response to the language in this paragraph. In the second 
sentence, to remove ambiguity and for clarity, we replaced the words 
``well defined data resources'' with the words, ``data and information 
resources.''
    The North Carolina DOT observed that the language in this paragraph 
is an introduction to the section, and that it should not be labeled as 
``(a).'' We did not make this change because the Office of the Federal 
Register (OFR) requires paragraph designations on all text in a rule.
    Section 630.1008(b), Work Zone Assessment and Management 
Procedures. Most respondents were supportive of the language in this 
paragraph.
    Section 630.1008(c), Work Zone Data. Most State DOTs and the AASHTO 
opposed the mandatory requirement to use work zone crash and 
operational data towards improving work zone safety and mobility on 
ongoing projects, as well as to improve agency processes and 
procedures. One of the key reasons cited for this opposition was the 
difficulty and level of effort involved in obtaining and compiling data 
quickly enough to take remedial action on ongoing projects. A few DOTs 
also stated that using data to improve State-level procedures was 
feasible but not at the individual project level. The AASHTO also 
observed that there is already a reference to data in Sec.  
630.1008(e), ``Process Review,'' where the use of data is optional and 
not mandatory. Some States recommended that we clarify the term 
``operational data,'' whether it is observed or collected data. They 
also noted that the ``shall'' clauses in the first two sentences are 
inconsistent with the ``encouraged to'' in the last sentence, and 
questioned as to how the use of data

[[Page 54565]]

can be mandated when the data resources themselves are optional. The 
California Transportation Department (CalTrans) questioned the 
objective of developing TMPs and conducting process reviews if 
appropriate performance measures and data collection standards are not 
identified for determining success.
    The FHWA provides the following comments and responses to the above 
stated concerns:
     The purpose of the provisions in this section is not to 
require States to collect additional data during project 
implementation, but rather, to improve the use of available work zone 
field observations, crash data, and operational information to: (1) 
Manage the safety and mobility impacts of projects more effectively 
during implementation; and (2) provide the basis for systematic 
procedures to assess work zone impacts in project development.
    For example, most agencies maintain field diaries for constructions 
projects. These field diaries are intended to provide a log of 
problems, decisions, and progress made over the duration of a project. 
In many States, these diaries log incidents and actions such as the 
need to replace channelization devices into their proper positions 
after knockdown by an errant vehicle, or to deal with severe congestion 
that occurred at some point during the day. These log notes, when 
considered over time, may provide indications of safety or operational 
deficiencies. To address such deficiencies, it may be necessary and 
prudent to improve the delineation through the work zone to prevent 
future occurrences of knockdown events, or to alter work schedules to 
avoid the congestion that recurs at unexpected times due to some local 
traffic generation phenomena.
    Police reports are another example of an available source of data 
that may be useful in increasing work zone safety. Provisions are made 
in many agencies for a copy of each crash report to be forwarded to the 
engineering section immediately upon police filing of the crash report. 
Where a work zone is involved, a copy of this report should be 
forwarded as soon as possible to the project safety manager to 
determine if the work zone traffic controls had any contribution to the 
crash so that remedial action can be taken.
    These applications do not necessarily require that agencies gather 
new data, but there may be a need to improve processes to forward such 
reports to the appropriate staff member for review during project 
implementation and/or to provide guidance or training to facilitate 
interpretation of these reports. Agencies may choose to enhance the 
data they capture to improve the effectiveness of these processes by 
following national crash data enhancement recommendations and/or 
linking it with other information (e.g., enforcement actions, public 
complaints, contractor claims). This same data and information can be 
gathered for multiple projects and analyzed by the agency to determine 
if there are common problems that could be remedied by a change in 
practices. The information may also be used for process reviews.
     The first sentence of this paragraph was revised to convey 
that States are required to use field observations, available work zone 
crash data, and operational information at the project level, to manage 
the work zone impacts of specific projects during project 
implementation. This provision requires States to use data and 
information that is available to them, so as to take appropriate 
actions in a timely manner to correct potential safety or mobility 
issues in the field. Operational information refers to any available 
information on the operation of the work zone, be it observed or 
collected. For example, many areas have Intelligent Transportation 
Systems (ITS) in place, and many others are implementing specific ITS 
deployments to manage traffic during construction projects. The 
application of this provision to a project where ITS is an available 
information resource, would result in the use of the ITS information to 
identify potential safety or mobility issues on that project.
     The second sentence was also revised to convey that work 
zone crash and operational data from multiple projects shall be 
analyzed towards improving State processes and procedures. Such 
analysis will help improve overall work zone safety and mobility. Data 
gathered during project implementation needs to be maintained for such 
post hoc analyses purposes. Such data can be used to support analyses 
that help improve State procedures and the effectiveness of future work 
zone safety and mobility assessment and management procedures.
     The respondents indicated that the use of ``encouraged 
to'' in the last sentence is inconsistent with the ``shall'' clauses in 
the first two sentences. Further, the phrase, ``establish data 
resources at the agency and project levels'' does not clearly convey 
the message of the provision. This provision does not require States to 
embark on a massive data collection, storage, and analysis effort, but 
rather to promote better use of elements of their existing/available 
data and information resources to support the activities required in 
the first two sentences. Examples of existing/available data and 
information resources include: Project logs, field observations, police 
crash records, operational data from traffic surveillance devices 
(e.g., data from traffic management centers, ITS devices, etc.), other 
monitoring activities (e.g., work zone speed enforcement or citations), 
and/or public complaints. We revised the last sentence to convey that 
States should maintain elements of their data and information resources 
that logically support the required activities.
     In response to CalTrans' comment regarding establishing 
performance measures and data collection standards, we appreciate the 
value of the input, but we believe that we do not have adequate 
information at this time to specify performance measures for 
application at the National level. State DOTs may establish such 
performance measures and data collection standards as applicable to 
their individual needs and project scenarios. For example, the Ohio-DOT 
mandates that there shall always be at least two traffic lanes 
maintained in each direction for any work that is being performed on an 
Interstate or Interstate look-alike. We believe that such policies need 
to be developed and implemented according to individual State DOT 
needs, and hence we maintain a degree of flexibility in the rule 
language.
    Section 630.1008(d), Training. Most State DOTs and the AASHTO 
opposed the mandatory requirement that would require training for the 
personnel responsible for work zone safety and mobility during the 
different project development and implementation stages. These 
respondents noted that the proposed language implied that State DOTs 
would be responsible for training all the listed personnel, including 
those who do not work for the DOT itself, and that this would create a 
huge resource burden, as well as increase the liability potential for 
the DOTs. These commenters also ratified their opposition by quoting 
the MUTCD training requirement, which does not mandate training, but 
suggests that personnel should be trained appropriate to the job 
decisions that they are required to make. Some DOTs, including the New 
York State DOT (NYSDOT), requested that the reference to personnel 
responsible for enforcement of work zone related transportation 
management and traffic control be clarified as to whether it refers to 
law enforcement officers or to field construction/safety inspectors.

[[Page 54566]]

    The FHWA provides the following comments and responses to the above 
stated concerns:
     The FHWA agrees that the first sentence in the training 
section seems to imply that the State would be responsible for training 
all mentioned personnel; therefore, we changed the sentence to convey 
that the State shall ``require'' the mentioned personnel be trained. 
This change will require the State to train direct State employees 
only, and takes away the burden from the State to train personnel who 
are not direct employees. We believe that personnel responsible for the 
development, design, operation, inspection, and enforcement of work 
zone safety and mobility need to be trained, and this requirement will 
allow for training to be provided by the appropriate entities. The 
responsibility of the State would be to require such training, either 
through policy or through specification. For example, the Florida DOT 
has developed and required work zone training of their designers and 
contractors by procedure and by specifications. Similarly, the Maryland 
State Highway Administration (MD-SHA) provides a maintenance of traffic 
(MOT) design class to personnel responsible for planning and designing 
work zones, including consultants and contractors.
     Further, in keeping with the MUTCD language on training, 
we added the phrase, ``appropriate to the job decisions each individual 
is required to make'' to the end of the first sentence. This clarifies 
that the type and level of training will vary according to the 
responsibilities of the different personnel. For example, Maryland 
State Highway Police officers attend a 4-hour work zone safety and 
traffic control session at the Police Academy.
     We also revised the second sentence to convey that States 
shall require periodic training updates that reflect changing industry 
practices and State processes and procedures. Since we revised the 
first sentence to convey that training of non-State personnel is not a 
State responsibility, in the second sentence, we deleted the phrase, 
``States are encouraged to keep records of the training successfully 
completed by these personnel.''
     In response to the request that ``personnel responsible 
for enforcement'' of work zone related transportation management and 
traffic control be clarified, we believe that this group is inclusive 
of both law enforcement officers and field construction/safety 
inspectors.
    Section 630.1008(e), Process Review. Most respondents were 
supportive of the language in this section. The AASHTO and several 
State DOTs recommended that States should have maximum flexibility to 
implement the most appropriate team for each project. These commenters 
suggested that the fourth and the fifth sentences of the section be 
deleted, and that the clause, ``as well as FHWA'' be added to the end 
of the third sentence.
    The FHWA agrees with the observation made by the AASHTO and State 
DOTs that States should have maximum flexibility to implement the most 
appropriate review team for each project. Therefore, as suggested, we 
deleted the fourth and the fifth sentence of the section, and added the 
clause, ``as well as FHWA'' to the end of the third sentence. Further, 
in the third sentence, we changed the phrase ``are encouraged to'' to 
``should.''

Section 630.1010 Significant Projects

    All respondents agreed with the concept of defining significant 
projects, and the requirement to identify projects that are expected to 
have significant work zone impacts; however, most State DOTs and the 
AASHTO opposed the requirement to classify Interstate system projects 
that occupy a location for more than three days with either 
intermittent or continuous lane closures, as significant. They cited 
that all Interstate system projects that occupy a location for more 
than three days would not necessarily have significant work zone 
impacts, particularly on low-volume rural Interstate sections. Several 
DOTs remarked that designation of significant projects purely based on 
the duration would not be prudent, and that the volume of traffic on 
that Interstate should be taken into account. They also noted that such 
classification is not consistent with the MUTCD. They remarked that 
this provision could not be effectively applied to routine maintenance 
activities performed by State DOT maintenance crews, and that 
requesting exceptions to such routine work would be unreasonably 
arduous.
    These respondents also objected to the associated exemption clause 
for the same provision, commenting that it would be very cumbersome to 
implement. Some States also requested clarification on whether general 
exceptions would be granted for work categories for defined segments of 
Interstate projects where the work would have little impact.
    The DOTs of Idaho, Montana, North Dakota, South Dakota, and Wyoming 
commented that the threshold for designating the reference Interstate 
projects as significant was too low. They suggested that low volume 
Interstates and rural Interstates should be excluded, and that, the 
duration should be extended well above the three-day duration.
    The AASHTO and the State DOTs also remarked that the identification 
of significant projects in ``cooperation with the FHWA'' should be 
changed to ``in consultation with the FHWA.''
    The FHWA provides the following responses and proposed action in 
response to the referenced concerns:
     We agree with the majority of the concerns raised by the 
respondents.
     We changed the significant projects clause as applicable 
to Interstate system projects, to require States to classify as 
significant projects, all Interstate system projects within the 
boundaries of a designated Transportation Management Area (TMA), that 
occupy a location for more than three days with either intermittent or 
continuous lane closures. We believe that this change addresses all the 
concerns raised by the respondents. The delineation of projects by the 
boundaries of a designated TMA will address the work zone impacts of 
lane-closures on Interstate segments in the most heavily traveled areas 
with recurring congestion problems. We believe that in general, areas 
with recurring congestion tend to be severely impacted by lane closures 
as compared to those without recurring congestion. We also believe that 
the areas that are already designated as TMAs tend to exhibit patterns 
of recurring congestion on their Interstates due to heavy traffic 
demand and limited capacity. This revision, in most cases, would also 
not require low-volume rural Interstate segments to be classified as 
significant projects.
     We revised the exemption clause provisions related to the 
applicable Interstate system projects to allow for exemptions to 
``categories of projects.'' This will provide for blanket exemptions 
for specific categories of projects on Interstate segments that are not 
expected to have significant work zone impacts. This will eliminate the 
burdensome procedural aspect of seeking exemptions for Interstate 
projects on an individual project basis.
     We also reorganized this section to consist of paragraphs 
(a), (b), (c), and (d). Paragraph (a) provides the general definition 
for a significant project, with no changes in language from what was 
proposed in the SNPRM. Paragraph (b) enumerates the purpose of 
classifying projects as significant, and lays out the requirements for 
States to classify projects as significant. This language is also the 
same as what was proposed in the SNPRM. Paragraph (c) provides the 
revised definition of significant projects

[[Page 54567]]

as applicable to Interstate system projects. Paragraph (d) provides the 
revised exemption clause as applicable to significant projects on the 
Interstate system.
     In keeping with the overall recommendation of respondents, 
we changed all instances of ``Agency'' and ``State Agency'' to 
``State.''
     We do not agree with the recommendation that the 
identification of significant projects should be done in 
``consultation'' with the FHWA rather than ``cooperation with the 
FHWA.'' We believe that this is a cooperative process, rather than 
requiring just consultation. Therefore, we did not make any change to 
this terminology.

Section 630.1012 Project-Level Procedures

    Section 630.1012(a). The North Carolina DOT observed that the 
language in this section is an introduction to the section, and that it 
should not be labeled as ``(a).'' We did not make this change because 
the OFR requires paragraph designations on all text in a rule.
    The ITE recommended that the FHWA should encourage consideration of 
work zone impacts prior to project development, at the corridor and 
Transportation Improvement Program (TIP) and program development stage. 
It provided examples of decisions that would be made at the earlier 
stages, such as, life-cycle cost decisions, and project scheduling 
decisions. We appreciate ITE's input and agree with the general intent 
of its suggested content. We believe that the language in Sec. Sec.  
630.1002, Purpose and 630.1010, Significant Projects covers some of the 
issues to which the ITE refers. Specifically, the following two 
sentences from the respective sections address the ITE's concerns:
     From Sec.  630.1002, Purpose: ``Addressing these safety 
and mobility issues requires considerations that start early in project 
development and continue through project completion.''
     From Sec.  630.1010, Significant Projects: ``This 
identification of significant projects should be done as early as 
possible in the project delivery and development process, and in 
cooperation with the FHWA.''
    Section 630.1012(b), Transportation Management Plan (TMP). Most 
respondents were supportive of the provisions in this section.
    The Florida DOT requested further definition for the phrase ``less 
than significant work zone impacts.'' We believe that the definition 
for ``work zone impacts'' as provided in Sec.  630.1004 and the clauses 
for identification of projects with significant work zone impacts, as 
stated in Sec.  630.1010 adequately describe the phrase ``less than 
significant work zone impacts.'' We did not take any action in response 
to this comment.
    The New Jersey DOT recommended that, in order to facilitate maximum 
flexibility to States, the term ``typically'' be introduced before the 
word ``consists'' in the third sentence of this section. We do not 
agree with the suggested edit because for significant projects, a TMP 
shall always consist of a TTC plan, and address Transportation 
Operations (TO) and Public Information (PI) components, unless an 
exemption has been granted for that project. We did not take any action 
in response to this comment.
    Section 630.1012(b)(1), Temporary Traffic Control (TTC) Plan. In 
general, most respondents were supportive of the provisions in this 
section, except the provision regarding maintenance of pre-existing 
roadside safety features.
    Most State DOTs and the AASHTO were opposed to the provision, which 
required the maintenance of pre-existing roadside safety features in 
developing and implementing the TTC plan. They recommended that the 
FHWA either remove the requirement or change the mandatory ``shall'' to 
a ``should.''
    Several DOTs stated that maintenance of all pre-existing roadside 
safety features would be very difficult, especially, in urban areas. 
Other DOTs requested clarification on what ``pre-existing roadside 
safety features'' would entail--whether it would include items like 
signs, guardrail, and barriers, or it would include features like 
shoulders, slopes and other geometric aspects. On that note, several 
DOTs mentioned that maintenance of pre-existing roadside safety 
``hardware'' would be more practical than maintaining pre-existing 
roadside safety features.
    The Laborers Health and Safety Foundation of North America (LHSFNA) 
continued to stress the requirement for Internal Traffic Control Plans 
(ITCPs) for managing men and materials within the work area, so as to 
address worker safety issues better, and to level the playing field for 
contractors.
    The FHWA offers the following in response to the comments and 
concerns raised above:
     The FHWA agrees with most of the concerns raised by the 
respondents.
     In the fourth sentence of paragraph (b)(1), we changed the 
term ``pre-existing roadside safety features,'' to ``pre-existing 
roadside safety hardware.'' We believe that this change will address 
all the concerns raised by the respondents, and eliminate ambiguity and 
subjectivity from the requirement.
     In response to the LHSFNA's comment regarding ITCPs, we 
agree that ITCPs are important for providing for worker safety inside 
the work area, but we still believe that this issue is outside the 
purview of this rulemaking effort and this subpart.
     In order to be consistent with the remaining sections of 
this subpart, and to eliminate ambiguity, we deleted the first sentence 
of this section, and replaced it with the definition for TTC plan as 
stated in Sec.  630.1004. Consequently, we removed the definition for 
TTC plan from Sec.  630.1004.
    Section 630.1012(b)(2), Transportation Operations (TO) Component. 
Most respondents were supportive of the provisions in this section. The 
AASHTO and several DOTs suggested that ``traveler information'' be 
removed as a typical TO strategy because ``traveler information'' fits 
more logically in the PI component. The New Jersey DOT recommended that 
the phrase ``transportation operations and safety requirements'' be 
changed to ``transportation operations and safety strategies,'' so as 
to soften the tone of the language.
    We agree with both of the above observations; therefore, we removed 
``traveler information'' from the listing of typical TO strategies in 
the second sentence. We also changed the phrase ``transportation 
operations and safety requirements'' to ``transportation operations and 
safety strategies'' in the last sentence.
    Section 630.1012(b)(3), Public Information Component. Most 
respondents were supportive of the provisions in this section. The 
AASHTO and several DOTs suggested that ``traveler information'' be 
included as a typical PI strategy rather than a TO strategy, because 
``traveler information'' fits more logically in the PI component. The 
New Jersey DOT recommended that the phrase ``public information and 
outreach requirements'' be changed to ``public information and outreach 
strategies,'' so as to soften the tone of the language.
    We agree with both of the above observations; therefore, we added a 
new sentence after the first sentence, to indicate that the PI 
component may include traveler information strategies. We also changed 
the phrase ``public information and outreach requirements'' to ``public 
information and outreach strategies'' in the third sentence.
    Section 630.1012(b)(4), Coordinated Development of TMP. Most 
respondents were supportive of the provisions in this section. The 
AASHTO and several DOTs

[[Page 54568]]

recommended that the terminology, ``coordination and partnership'' in 
the first sentence, be changed to ``consultation,'' so that it doesn't 
imply active and direct participation from all the subjects. They 
explained that the term ``coordination'' implies that all participants 
have veto/negative powers which may delay project delivery as it is 
impossible to satisfy everybody. Further, the DOTs of Idaho, Montana, 
North Dakota, South Dakota, and Wyoming commented that the use of 
``i.e.'' for the list of stakeholders implies that all those 
stakeholders are required for all projects. So they recommended that we 
change the ``i.e.'' to ``e.g.'' so that it would imply that the list 
provides examples of possible stakeholders, and that all of them need 
not be involved in all projects.
    The FHWA agrees with both of the above observations and 
recommendations; therefore, we changed the phrase ``partnership and 
coordination'' to ``consultation'' in the first sentence of this 
section. We also changed ``i.e.'' to ``e.g.'' for the list of 
stakeholders.
    Section 630.1012(c), Inclusion of TMPs in Plans, Specifications, 
and Estimates (PS&Es). Most respondents were supportive of the 
provisions in this section. The DOTs of Idaho, Montana, North Dakota, 
South Dakota, and Wyoming noted that the last sentence in this section 
could imply that the State shall approve any TMP that is developed by 
the contractor, irrespective of whether it meets the standards or not. 
They recommended that the sentence be revised for clarity.
    The FHWA agrees with the above observation. We revised the last 
sentence of this section to convey that contractor developed TMPs shall 
be subject to the approval of the State, and that the TMPs shall not be 
implemented before they are approved by the State. This clarifies the 
language and explicitly states the notion that it is the State that is 
ultimately responsible for approving any contractor developed TMP.
    Section 630.1012(d), Pay Items. Most respondents were supportive of 
the provisions in this section. However, the ATSAA and the AGC of 
America opposed the option in Sec.  630.1012(d)(1) for States to use 
lump sum pay items for implementing the TMPs. The ATSSA believes that 
unit bid items provide greater specificity and are a better indicator 
of the direct cost of work zones. Conversely, the use of a lump sum pay 
item provides less comprehensive data, and may, in some cases, limit, 
or eliminate the contractor's ability to make a profit on certain 
projects due to unknown equipment or device requirements either during 
bidding or project implementation. It cited that unit pay items, 
especially for the TTC plan, would require that all the identified work 
zone safety and mobility strategies/equipment/devices be provided for 
by the contractor. This would level the playing field, and not place 
conscientious contractors (those who lay emphasis on work zone safety 
and mobility and include them in their bids) at a disadvantage.
    The FHWA recognizes ATSSA's and AGC's concerns, but we believe that 
States have the required understanding of when to use unit pay items 
and when not to, and that the requirement for unit pay items on all 
projects is not practical for real-world application. Therefore, we did 
not remove the option for DOTs to use lump sum contracting.
    We changed ``i.e.'' to ``e.g.'' for the list of possible 
performance criteria for performance specifications in Sec.  
630.1012(d)(2), to remove the implication that the list is an 
exhaustive list of performance criteria.
    Section 630.1012(e), Responsible Persons. Most respondents were 
supportive of the provisions in this section. A few State DOTs remarked 
that the terms ``qualified person,'' ``assuring,'' and ``effectively 
administered,'' in Sec.  630.1012(e) were ambiguous and lent themselves 
to subjective interpretation.
    The FHWA agrees with the above observations. We changed the term 
``qualified'' to ``trained,'' as specified in Sec.  630.1008(d) so as 
to clarify the requirement for the responsible person. We also changed 
the phrase ``assuring that'' to ``implementing,'' and deleted the 
phrase, ``are effectively administered.''

Section 630.1014 Implementation

    Most respondents were supportive of the provisions in this section. 
We did not make any changes to the language in this section.

Section 630.1016 Compliance Date

    Most respondents were supportive of the provisions in this section. 
We did not make any changes to the language in this section.

Rulemaking Analyses and Notices

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

Regulatory Policies and Procedures
    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of the U.S. Department of Transportation 
regulatory policies and procedures.
    This final rule is not anticipated to adversely affect, in a 
material way, any sector of the economy. In addition, these changes 
will not create a serious inconsistency with any other agency's action 
or materially alter the budgetary impact of any entitlements, grants, 
user fees, or loan programs; nor will the changes raise any novel legal 
or policy issues. Therefore, a full regulatory evaluation is not 
required.
Regulatory Flexibility Act
    In compliance with the Regulatory Flexibility Act (RFA) (Pub. L. 
96-354, 5 U.S.C. 601-612), the FHWA has evaluated the effects of this 
final rule on small entities and has determined that it will not have a 
significant economic impact on a substantial number of small entities.
    This rule applies to State departments of transportation in the 
execution of their highway program, specifically with respect to work 
zone safety and mobility. The implementation of the provisions in this 
rule will not affect the economic viability or sustenance of small 
entities, as States are not included in the definition of small entity 
set forth in 5 U.S.C. 601. For these reasons, the RFA does not apply 
and the 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 will not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 
109 Stat. 48). The final rule will not result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $120.7 million or more in any one year (2 U.S.C. 
1532).
Executive Order 13132 (Federalism)
    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, dated August 4, 1999, and 
it has been determined that this action does not have a substantial 
direct effect or sufficient federalism implications on States that 
would limit the policymaking discretion of the States. Nothing in this 
document directly preempts any State law or regulation or affects the 
States' ability to discharge traditional State governmental functions.
Executive Order 12372 (Intergovernmental Review)
    Catalog of Federal Domestic Assistance Program Number 20.205,

[[Page 54569]]

Highway Planning and Construction. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program.
Paperwork Reduction Act of 1995
    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations.
    The FHWA has determined that this final rule contains a requirement 
for data and information to be collected and maintained in the support 
of design, construction, and operational decisions that affect the 
safety and mobility of the traveling public related to highway and 
roadway work zones. This information collection requirement was 
submitted to and approved by the OMB, pursuant to the provisions of the 
PRA. In this submission, the FHWA requested the OMB to approve a single 
information collection clearance for all of the data and information in 
this final rule. The requirement has been approved, through July 31, 
2007; OMB Control No. 2125-0600.
    The FHWA estimates that a total of 83,200 burden hours per year 
would be imposed on non-Federal entities to provide the required 
information for the regulation requirements. Respondents to this 
information collection include State Transportation Departments from 
all 50 States, Puerto Rico, and the District of Columbia. The estimates 
here only include burdens on the respondents to provide information 
that is not usually and customarily collected.
Executive Order 13175 (Tribal Consultation)
    The FHWA has analyzed this action under Executive Order 13175, 
dated November 6, 2000, and believes that this action will not have 
substantial direct effects on one or more Indian tribes; will not 
impose substantial direct compliance costs on Indian tribal 
governments; and will not preempt tribal law. This rulemaking primarily 
applies to urbanized metropolitan areas and National Highway System 
(NHS) roadways that are under the jurisdiction of State transportation 
departments. The purpose of this final rule is to mitigate the safety 
and mobility impacts of highway construction and maintenance projects 
on the transportation system, and would not impose any direct 
compliance requirements on Indian tribal governments and will not have 
any economic or other impacts on the viability of Indian tribes. 
Therefore, a tribal summary impact statement is not required.
Executive Order 13211 (Energy Effects)
    The FHWA has analyzed this action under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution or Use. We have determined that this is not a significant 
energy action under that order because it is not a significant 
regulatory action under Executive Order 12866 and is not likely to have 
a significant adverse effect on the supply, distribution, or use of 
energy. Further, we believe that the implementation of the final rule 
by State departments of transportation will reduce the amount of 
congested travel on our highways, thereby reducing the fuel consumption 
associated with congested travel. Therefore, the FHWA certifies that a 
Statement of Energy Effects under Executive Order 13211 is not 
required.
National Environmental Policy Act
    The FHWA has analyzed this action for the purposes of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347 et seq.) and has 
determined that this action will not have any effect on the quality of 
the environment. Further, we believe that the implementation of the 
final rule by State departments of transportation will reduce the 
amount of congested travel on our highways. This reduction in congested 
travel will reduce automobile emissions thereby contributing to a 
cleaner environment.
Executive Order 12630 (Taking of Private Property)
    The FHWA has analyzed this final rule under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights. The FHWA does not anticipate that this action will 
affect a taking of private property or otherwise have taking 
implications under Executive Order 12630.
Executive Order 12988 (Civil Justice Reform)
    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
    The FHWA has analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. The FHWA certifies that this action will not cause an 
environmental risk to health or safety that may disproportionately 
affect children.
Regulation Identification Number
    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be 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, Project 
agreement, Traffic regulations.

    Issued on: September 1, 2004.
Mary E. Peters,
Federal Highway Administrator.

0
In consideration of the foregoing, the FHWA amends title 23, Code of 
Federal Regulations, Part 630, as follows:

PART 630--PRECONSTRUCTION PROCEDURES

0
1. The authority citation for part 630 continues to read as follows:

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

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 Workzone 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.


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

[[Page 54570]]

Control Devices (MUTCD) \1\ sets forth basic principles and prescribes 
standards for the design, application, installation, and maintenance of 
traffic control devices for highway and street construction, 
maintenance operation, and utility work. In addition to the provisions 
in the MUTCD, there are other actions that could be taken to further 
help mitigate the safety and mobility impacts of work zones. This 
subpart establishes requirements and provides guidance for 
systematically addressing the safety and mobility impacts of work 
zones, and developing strategies to help manage these impacts on all 
Federal-aid highway projects.
---------------------------------------------------------------------------

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


Sec.  630.1004  Definitions and explanation of terms.

    As used in this subpart:
    Highway workers include, but are not limited to, personnel of the 
contractor, subcontractor, DOT, utilities, and law enforcement, 
performing work within the right-of-way of a transportation facility.
    Mobility is the ability to move from place to place and is 
significantly dependent on the availability of transportation 
facilities and on system operating conditions. With specific reference 
to work zones, mobility pertains to moving road users efficiently 
through or around a work zone area with a 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 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 measures for highway safety are the number of crashes or the 
consequences of crashes (fatalities and injuries) at a given location 
or along a section of highway during a period of time. Highway worker 
safety in work zones refers to the safety of workers at the work zone 
interface with traffic and the impacts of the work zone design on 
worker safety. The number of worker fatalities and injuries at a given 
location or along a section of highway, during a period of time are 
commonly used measures for highway worker safety.
    Work zone \2\ is an area of a highway with construction, 
maintenance, or utility work activities. A work zone is typically 
marked by signs, channelizing devices, barriers, pavement markings, 
and/or work vehicles. It extends from the first warning sign or high-
intensity rotating, flashing, oscillating, or strobe lights on a 
vehicle to the END ROAD WORK sign or the last temporary traffic control 
(TTC) device.
---------------------------------------------------------------------------

    \2\ MUTCD, Part 6, ``Temporary Traffic Control,'' Section 6C.02, 
``Temporary Traffic Control Zones.''
---------------------------------------------------------------------------

    Work zone crash \3\ means a traffic crash in which the first 
harmful event occurs within the boundaries of a work zone or on an 
approach to or exit from a work zone, resulting from an activity, 
behavior, or control related to the movement of the traffic units 
through the work zone. This includes crashes occurring on approach to, 
exiting from or adjacent to work zones that are related to the work 
zone.
---------------------------------------------------------------------------

    \3\ ``Model Minimum Uniform Crash Criteria Guideline'' (MMUCC), 
2d Ed. (Electronic), 2003, produced by National Center for 
Statistics and Analysis, National Highway Traffic Safety 
Administration (NHTSA). Telephone 1-(800)-934-8517. Available at the 
URL: http://www-nrd.nhtsa.dot.gov. The NHTSA, the FHWA, the Federal 
Motor Carrier Safety Administration (FMCSA), and the Governors 
Highway Safety Association (GHSA) sponsored the development of the 
MMUCC Guideline which recommends voluntary implementation of the 111 
MMUCC data elements and serves as a reporting threshold that 
includes all persons (injured and uninjured) in crashes statewide 
involving death, personal injury, or property damage of $1,000 or 
more. The Guideline is a tool to strengthen existing State crash 
data systems.
---------------------------------------------------------------------------

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


Sec.  630.1006  Work zone safety and mobility policy.

    Each State shall implement a policy for the systematic 
consideration and management of work zone impacts on all Federal-aid 
highway projects. This policy shall address work zone impacts 
throughout the various stages of the project development and 
implementation process. This policy may take the form of processes, 
procedures, and/or guidance, and may vary based on the characteristics 
and expected work zone impacts of individual projects or classes of 
projects. The States should institute this policy using a multi-
disciplinary team and in partnership with the 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) 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 should 
develop and implement systematic procedures to assess work zone impacts 
in project development, and to manage safety and mobility during 
project implementation. The scope of these procedures shall be based on 
the project characteristics.
    (c) Work zone data. States shall use field observations, available 
work zone crash data, and operational information to manage work zone 
impacts for specific projects during implementation. States shall 
continually pursue improvement of work zone safety and mobility by 
analyzing work zone crash and operational data from multiple projects 
to improve State processes and procedures. States should maintain 
elements of the data and information resources that are necessary to 
support these activities.
    (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) Process review. In order to assess the effectiveness of work 
zone safety and mobility procedures, the States shall perform a process 
review at least every two years. This review may include the evaluation 
of work zone data at the State level, and/or review of randomly 
selected projects throughout

[[Page 54571]]

their jurisdictions. Appropriate personnel who represent the project 
development stages and the different offices within the State, and the 
FHWA should participate in this review. Other non-State stakeholders 
may also be included in this review, as appropriate. The results of the 
review are intended to lead to improvements in work zone processes and 
procedures, data and information resources, and training programs so as 
to enhance efforts to address safety and mobility on current and future 
projects.


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/or 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 the FHWA. The 
State's work zone policy provisions, the project's characteristics, and 
the magnitude and extent of the anticipated work zone impacts should be 
considered when determining if a project is significant or not.
    (c) All Interstate system projects within the boundaries of a 
designated Transportation Management Area (TMA) that occupy a location 
for more than three days with either intermittent or continuous lane 
closures 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 Sec.  630.1010(c), but in the judgment 
of the State they do not cause sustained work zone impacts, the State 
may request from the FHWA, an exception to Sec. Sec.  630.1012(b)(2) 
and 630.1012(b)(3). Exceptions to these provisions may be granted by 
the FHWA 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.


Sec.  630.1012  Project-level procedures.

    (a) This section provides guidance and establishes procedures for 
States to manage the work zone impacts of individual projects.
    (b) Transportation Management Plan (TMP). A TMP consists of 
strategies to manage the work zone impacts of a project. Its scope, 
content, and degree of detail may vary based upon the State's work zone 
policy, and the State's understanding of the expected work zone impacts 
of the project. For significant projects (as defined in Sec.  
630.1010), the State shall develop a TMP that consists of a Temporary 
Traffic Control (TTC) plan and addresses both Transportation Operations 
(TO) and Public Information (PI) components. For individual projects or 
classes of projects that the State determines to have less than 
significant work zone impacts, the TMP may consist only of a TTC plan. 
States are encouraged to consider TO and PI issues for all projects.
    (1) A TTC plan describes TTC measures to be used for facilitating 
road users through a work zone or an incident area. The TTC plan plays 
a vital role in providing continuity of reasonably safe and efficient 
road user flow and highway worker safety when a work zone, incident, or 
other event temporarily disrupts normal road user flow. The TTC plan 
shall be consistent with the provisions under Part 6 of the MUTCD and 
with the work zone hardware recommendations in Chapter 9 of the 
American Association of State Highway and Transportation Officials 
(AASHTO) Roadside Design Guide. Chapter 9 of the AASHTO Roadside Design 
Guide: ``Traffic Barriers, Traffic Control Devices, and Other Safety 
Features for Work Zones'' 2002, is incorporated by reference in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51 and is on file at the 
National Archives and Record Administration (NARA). For information on 
the availability of this material at NARA call (202) 741-6030, or go to 
http://www.archives.gov/federal_register/code_of_federal_
regulations/ibr_locations.html. The entire document is available for 
purchase from the American Association of State Highway and 
Transportation Officials (AASHTO), 444 North Capitol Street, NW., Suite 
249, Washington, DC 20001 or at the URL: http://www.aashto.org/
bookstore. It is available for inspection from the FHWA Washington 
Headquarters and all Division Offices as listed in 49 CFR Part 7. 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 will be used to mitigate impacts of the work zone on 
the operation and management of the transportation system within the 
work zone impact area. Typical TO strategies may include, but are not 
limited to, demand management, corridor/network management, safety 
management and enforcement, and work zone traffic management. 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 PI component of the TMP shall include communications 
strategies that seek to inform affected road users, the general public, 
area residences and businesses, and appropriate public entities about 
the project, the expected work zone impacts, and the changing 
conditions on the project. This may include traveler information 
strategies. The scope of the PI component should be determined by the 
project characteristics and the public information and outreach 
strategies identified by the State. Public information should be 
provided through methods best suited for the project, and may include, 
but not be limited to, information on the project characteristics, 
expected impacts, closure details, and commuter alternatives.
    (4) States should develop and implement the TMP in sustained 
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) The Plans, Specifications, and Estimates (PS&Es) shall include 
either a TMP or provisions for contractors to develop a TMP at the most 
appropriate project phase as applicable to the State's chosen 
contracting methodology for the project. 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) The PS&Es shall include appropriate pay item provisions for 
implementing the TMP, either through method or performance based 
specifications.

[[Page 54572]]

    (1) For method-based specifications individual pay items, lump sum 
payment, or a combination thereof may be used.
    (2) For performance based specifications, applicable performance 
criteria and standards may be used (e.g., safety performance criteria 
such as number of crashes within the work zone; mobility performance 
criteria such as travel time through the work zone, delay, queue 
length, traffic volume; incident response and clearance criteria; work 
duration criteria).
    (e) Responsible persons. The State and the contractor shall each 
designate a 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 partnership with the FHWA in the 
implementation of its policies and procedures to improve work zone 
safety and mobility. At a minimum, this shall involve an FHWA review of 
conformance of the State's policies and procedures with this 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 the 
FHWA.


Sec.  630.1016  Compliance Date.

    States shall comply with all the provisions of this rule no later 
than October 12, 2007. 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 the FHWA, on a project-by-project basis.

[FR Doc. 04-20340 Filed 9-8-04; 8:45 am]
BILLING CODE 4910-22-P