Work Zone Safety and Mobility and Temporary Traffic Control Devices

Work Zone Safety and Mobility and Temporary Traffic Control Devices

Publication: Federal Register
Agency: Federal Highway Administration
Byline: Shailen P. Bhatt
Date: 20 September 2023
Subjects: American Government

, Roads & Highways, Safety

[Federal Register Volume 88, Number 181 (Wednesday, September 20, 2023)]
[Proposed Rules]
[Pages 64836-64846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19701]

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Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 /
Proposed Rules

[[Page 64836]]

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: Notice of Proposed Rulemaking (NPRM); request for comments.

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SUMMARY: The FHWA proposes to amend 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. These proposed changes are intended to
facilitate consideration of the broader safety and mobility impacts of
work zones in a more coordinated and comprehensive manner across
project development stages.

DATES: Comments must be received on or before November 20, 2023.

ADDRESSES: To ensure that you do not duplicate your docket submissions,
please submit comments by only one of the following means:
Federal eRulemaking Portal: Go to https://www.regulations.gov and follow the online instructions for submitting
comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590.
Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays. The telephone number is (202)
366-9329.

All submissions should include the agency name and the docket number
that appears in the heading of this document or the Regulation
Identifier Number (RIN) for the rulemaking. All comments received will
be posted without change to https://www.regulations.gov, including any
personal information provided.

FOR FURTHER INFORMATION CONTACT: Mr. Jawad Paracha, Office of
Transportation Operations (HOTO-1), (202) 366-4628, or via email at
Jawad.Paracha@dot.gov, or Mr. William Winne, Office of the Chief
Counsel (HCC-30), (202) 366-1379, or via email at
William.Winne@dot.gov. 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 and all comments received may be viewed online
through the Federal eRulemaking portal at www.regulations.gov using the
docket number listed above. Electronic retrieval help and guidelines
are also available at www.regulations.gov. An electronic copy of this
document may also be downloaded from the Office of the Federal
Register's website at www.FederalRegister.gov and the Government
Publishing Office's website at www.GovInfo.gov.
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable. In addition to late comments,
FHWA will also continue to file relevant information in the docket as
it becomes available after the comment period closing date and
interested persons should continue to examine the docket for new
material. A final rule may be published at any time after the close of
the comment period and after DOT has had the opportunity to review the
comments submitted.

Background

The principal mission of the 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. The FHWA strongly encourages that work zones to
accomplish these activities be implemented and maintained as safely as
possible and with the least possible amount of travel disruption. Doing
so directly supports the DOT safety strategic goal and facilitates the
movement of people and goods while that work occurs, which is essential
for maintaining economic strength and global competitiveness.
Similarly, effective work zone management also ensures that impacts
themselves do not unduly burden any one user group excessively without
efforts to mitigate those differential impacts, which furthers the DOT
equity strategic goal. Congestion generated by work zones contributes
to vehicular pollution, and reducing congestion undoubtedly supports
DOT goals pertaining to climate and sustainability. Finally, 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.
This NPRM proposes changes to Subpart J, Work Zone Safety and
Mobility, and Subpart K, Temporary Traffic Control Devices to clarify
and correct certain aspects of the regulations that were last modified
in 2004 and 2006, respectively.

Subpart J--Work Zone Safety and Mobility

Work zones are a necessary part of meeting the need to maintain and

[[Page 64837]]

upgrade our aging roadway infrastructure. Work zone activities are
expected to increase significantly with the passage of the Bipartisan
Infrastructure Law (BIL) (enacted as the Infrastructure Investment and
Jobs Act (Pub. L. 117-58) (November 15, 2021)). The law provides
approximately $350 billion for Federal highway programs during Fiscal
Years 2022 through 2026.\1\ This represents a 55 percent increase in
highway and bridge program funding over the Fixing America's Surface
Transportation (FAST) Act (Pub. L. 114-94, December 4, 2015).\2\
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\1\ BIL information can be viewed at the following internet
website: https://www.fhwa.dot.gov/bipartisan-infrastructure-law/funding.cfm.
\2\ FAST Act information can be viewed at the following internet
website: https://www.govinfo.gov/content/pkg/PLAW-114publ94/html/PLAW-114publ94.htm.
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Even without increased funding, work zones already result in
significant safety and mobility impacts. In 2020 (the latest year for
which data are available), the National Highway Traffic Safety
Administration (NHTSA) reports that 857 individuals lost their lives in
774 fatal work zone crashes.\3\ In 2020, 117 workers at road
construction sites experienced a fatal occupational injury, 62 of which
involved a worker on foot being struck by a motor vehicle.\4\
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\3\ Fatal Analysis Reporting System (FARS) maintained by NHTSA.
More information is available at the following internet website:
http://www-fars.nhtsa.dot.gov/.
\4\ Census of Fatal Occupational Injuries maintained by the
Bureau of Labor Statistics, U.S. Department of Labor. More
information is available at the following internet website: https://www.bls.gov/iif/data.htm.
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In terms of mobility impacts, it has been estimated that 10 percent
of congestion in urban areas and 35 percent of congestion in rural
areas is caused by work zones.\5\ In Pennsylvania, 17 to 26 percent of
congestion is attributed to roadwork; \6\ in Florida, 4 to 7 percent of
mid-day and p.m. peak congestion on arterial streets are attributed to
work zones.\7\ Certainly, the requirements contained in 23 CFR part 630
Subpart J continue to be needed to help manage and mitigate work zone
safety and mobility impacts across the country.
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\5\ ``Traffic Congestion and Reliability: Trends and Advanced
Strategies for Congestion Mitigation, FHWA Office of Operations,''
can be viewed at the following internet website: https://ops.fhwa.dot.gov/congestion_report/executive_summary.htm.
\6\ ``Transportation Systems Management and Operations
Performance Report,'' Pennsylvania Department of Transportation,
January 2020, can be viewed at the following internet website:
https://www.penndot.gov/ProjectAndPrograms/operations/Documents/2020-January_TSMOPerformance-Report.pdf.
\7\ Soltani-Sobh, A., Ostojic, M., Stevanovic, A., Ma, J. and
Hale, D.K. (2017). ``Development of Congestion Causal Pie Charts for
Arterial Roadways.'' International Journal for Traffic & Transport
Engineering, 7(1).
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The FHWA has developed multiple resources to assist States in
implementing the revisions to the Work Zone Safety and Mobility Rule
2004.8 9 10 11 12 Overall, States have complied with
requirements to establish a work zone safety and mobility policy and to
implement a process for identifying significant projects. However, the
extent of implementation of some of the other required State-level
processes and procedures has varied across the country. For example,
many States have developed and implemented systematic procedures to
assess anticipated work zone impacts in project development. However,
only a few States have established procedures to monitor and manage
actual safety and mobility impacts during project implementation or to
perform post-project evaluations, despite increased availability of
data sources and methodologies available to do so.13 14 15
Similarly, many States have not fully embraced the opportunities for
conducting data-driven performance-based work zone process reviews that
these data sources and methodologies now offer, despite additional
guidance and encouragement to do so.16 17 The FHWA
acknowledges that a lack of clarity in what is specifically required by
certain parts of the regulation may partially explain the uneven
adoption. The existing regulation has language that was considered
necessary at the time it was established to ensure State understanding
of the regulation, but which is now considered superfluous to its
understanding and implementation.
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\8\ ``Implementing the Rule on Work Zone Safety and Mobility (23
CFR 630 Subpart J),'' September 2005, can be viewed at the following
internet website: https://ops.fhwa.dot.gov/wz/rule_guide/index.htm.
\9\ ``Work Zone Impacts Assessment--An Approach to Assess and
Manage Work Zone Safety and Mobility Impacts of Road Projects''
August 2006, can be viewed at the following internet website:
https://ops.fhwa.dot.gov/wz/resources/final_rule/wzi_guide/index.htm.
\10\ ``Developing and Implementing Transportation Management
Plans for Work Zones,'' December 2005, can be viewed at the
following internet website: https://ops.fhwa.dot.gov/wz/resources/publications/trans_mgmt_plans/index.htm.
\11\ ``Work Zone Public Information and Outreach Strategies,''
November 2005, can be viewed at the following website: https://ops.fhwa.dot.gov/wz/info_and_outreach/index.htm.
\12\ ``Work Zone Process Reviews'' can be viewed at the
following internet website: https://ops.fhwa.dot.gov/wz/prtoolbox/wzpr.htm.
\13\ ``Guidance on Data Needs, Availability, and Opportunities
for Work Zone Performance Measures,'' March 2013, can be viewed at
the following internet website: https://ops.fhwa.dot.gov/wz/resources/publications/fhwahop13011/index.htm.
\14\ ``Work Zone Performance Management Peer Exchange
Workshop,'' May 2013, can be viewed at the following internet
website: https://ops.fhwa.dot.gov/wz/p2p/pmwkshop053013/index.htm.
\15\ ``Work Zone Intelligent Transportation Systems
Implementation Guide,'' January 2014, can be viewed at the following
internet website: https://ops.fhwa.dot.gov/publications/fhwahop14008/index.htm.
\16\ ``Utilizing the Work Zone Capability Maturity Framework to
Improve Work Zone Management Capabilities and Process Review
Efforts,'' April 2019, can be viewed at the following internet
website: https://ops.fhwa.dot.gov/wz/webinars/wzcmf/presentation/index.htm.
\17\ ``Guidance for Conducting Effective Work Zone Process
Reviews,'' April 2015, can be viewed at the following internet
website: https://ops.fhwa.dot.gov/publications/fhwahop15013/index.htm.
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In addition, FHWA recognizes that the required frequency of Agency
work zone process reviews may be hampering some States from performing
more in-depth assessments using available data and methods. Section
11302 of the BIL calls for revisions to Sec. 630.1008(e) to ensure
that the work zone process review is required not more frequently than
once every 5 years. In addition, Section 11303 of the BIL calls for
revisions to Sec. 630.1010(c) to ensure that only a project with a
lane closure for 3 or more consecutive days shall be considered to be a
significant project for purposes of that section and, notwithstanding
any other provision of law, a State shall not be required to develop or
implement a transportation management plan (TMP) (as described in Sec.
630.1012) for a highway project not on the Interstate System if the
project requires not more than 3 consecutive days of lane closures.
These regulations were last modified in 2004 and introduced
requirements for State departments of transportation to develop and
adopt work zone safety policies; to conduct work zone impacts analyses
during project development to better understand individual project
characteristics and the associated work zone impacts; to develop TMPs
for projects as determined by the State's policy and results of impact
analysis; and provisions to allow States flexibility to choose either
method-based or performance-based specifications for their contracts.
The FHWA proposes to revise Sec. Sec. 630.1004, 630.1006, 630.1008,
630.1010, 630.1012, 630.1014, and 630.1016 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 following is a summary of key proposed
changes:
Incorporation of new definitions and clarification of some
existing definitions;

[[Page 64838]]

Incorporation of a requirement in a State's Work Zone
Safety and Mobility Policy to define the safety and mobility
performance measures that the State will monitor and report;
Reframing the requirement for bi-annual work zone process
reviews as work zone programmatic reviews to be performed every 5
years, along with additional information on what is to be included in
such reviews;
Revising the definition of what constitutes a
``significant project''; and
Simplifying the language describing the components of a
TMP.

Section-by-Section Discussion of the Proposed Revisions to the Subpart
J

Sec. 630.1004 Definitions and Explanation of Terms

The proposed changes to this section include: defining terms not
previously defined; strengthening the definitions of a few terms that
were already included in this section; and improving the organization
of the regulation.
The FHWA proposes to add definitions of the terms ``Agency'' and
``State'' to this section. The FHWA also proposes to modify the
definition of ``Mobility'' in work zones to delete the language about
not compromising the safety of highway workers, as the importance of
not compromising the safety of highway workers is already emphasized in
the definition of ``Safety.'' Next, the definition of ``Safety'' would
be revised to remove superfluous language and to strengthen the
language pertaining to highway workers by adding the rate of highway
worker fatalities and injuries per hours of work activity as a useful
performance measure of safety.
The FHWA also proposes to move the definition of ``Transportation
Management Plan'' that had been a part of Sec. 630.1012(b) to this
Definitions section. This definition includes reference to the
temporary traffic control (TTC) plan and a traffic operations (TO)
component to the TMP, as needed. The description of a public
information component has been expanded to public information and
outreach (PIO) to be consistent with the intent of that aspect of the
TMP. The definition of a ``Work Zone Crash'' would be revised to make
it consistent with the definition of a work zone crash in the Model
Minimum Uniform Crash Criteria (MMUCC).\18\ The reference to the MMUCC
would be updated to the 5th edition published in 2017, and superfluous
language describing the development of the MMUCC would be removed.
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\18\ ``Model Minimum Uniform Crash Criteria Guideline'' (MMUCC),
5th Ed. (Electronic), 201703, produced by National Center for
Statistics and Analysis, NHTSA. Telephone 1-(800)-934-8517.
Available at the following internet website: https://www.nhtsa.gov/mmucc-1.
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The FHWA also proposes to revise the definition of ``Work Zone
Impacts'' to better list the factors affecting work zone impacts,
particularly factors that affect highway worker safety. Examples are
provided of traffic and travel characteristics that influence such
impacts (volume, speed, vehicle mix and classification, etc.). In
addition, revisions to the definition are proposed to better describe
that such impacts may extend upstream or downstream of the limits of
the work zone in addition to other highway corridors, other modes of
transportation, or the regional transportation network.
Finally, FHWA proposes to add a definition for ``Work Zone
Programmatic Reviews.'' This definition would replace the term
``Process Review'' to better emphasize the intent of the review upon
the State's overall work zone management program. The 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 an
agency'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 data-driven approach to work zone safety and mobility management
requires the definition and use of performance measures. However, when
originally published in 2004, the existing regulation did not require
States to define the performance measures they would use to monitor and
manage work zone impacts as well as their overall work zone management
program. As a result, not all States have identified performance
measures they plan to monitor, nor have they developed the processes
and procedures necessary to compute such measures. Therefore, FHWA
proposes to revise this section to add a requirement that the State's
work zone safety and mobility policy will identify the safety and
mobility performance measures that will be used to monitor and manage
performance. The revision suggests the following project-level and
programmatic-level performance measure examples: number of fatal and
injury crashes occurring in a work zone (project-level measure);
percent of projects that exceed a preestablished crash rate in the work
zone (programmatic-level measure); number of highway worker fatalities
and injuries experienced or highway worker fatality and injury rate per
hours worked (project- or programmatic-level measure); percent of
projects that experience queues above a predefined threshold
(programmatic-level measure); and percent of time when speeds in a work
zone drop below a predefined threshold (project-level measure).

Sec. 630.1008 State-Level Processes and Procedures

When the existing regulation was published in 2004, the idea of
work zone safety and mobility management was a new concept.
Consequently, the language in the regulation was written to give States
significant leeway in how they chose to establish work zone safety and
mobility management policies and procedures. The FHWA believes that
States have made significant strides in their assessment and management
procedures over the past 15 years that the existing regulation has been
in place. In addition, analytical tools and data sources are readily
available to perform these assessments. Therefore, FHWA proposes to
revise Sec. 630.1008(b) on work zone assessment and management
procedures to strengthen these requirements. The word ``should'' would
be replaced with ``shall'' in the first sentence. Strengthening the
requirement to perform these assessments and management efforts will
facilitate continued improvement in work zone safety and mobility
nationally without unduly burdening the States. Next, the word
``potential'' would be added before ``work zone impacts'' to further
indicate that it is an activity that occurs during project development,
and the phrase ``to all road users and highway workers'' would be added
to emphasize the importance of assessing potential impacts to both
groups during project development. Finally, the words ``impacts
occurring'' would be added after the phrase ``safety and mobility'' to
emphasize the importance of monitoring conditions that occur when a
work zone is in place.
Similarly, regulatory language published in 2004 indicated the need
to use data and other information to improve agency work zone safety
and mobility management processes but did not provide a lot of
specifics as to what data or information could or should be used. Thus,
FHWA also proposes to revise Sec. 630.1008(c) on work zone data. A
description of safety surrogate data and of work zone exposure data
would be added to the list of available data sources that States shall
use to monitor and manage work zone impacts for specific projects
during implementation

[[Page 64839]]

and to perform its work zone programmatic reviews. Examples of
operational information (speeds, travel times, queue length and
duration, etc.) would also be added to this section.
The FHWA proposes to revise Sec. 630.1008(e) to change the
description of process reviews to work zone programmatic reviews. The
change in terminology emphasizes the importance of the review to look
at all aspects of a State's work zone management program. To comply
with BIL, the frequency of work zone programmatic reviews is reduced
from once every 2 years to once every 5 years. A statement would be
added that the review will be shared with FHWA at the end of each 5-
year review period.
The FHWA also proposes to strengthen the requirements of the work
zone programmatic review with the addition of Sec. 630.1008(e)(1) to
indicate that it shall include a data-driven assessment of the safety
and mobility performance of either all work zones occurring during the
5-year period of the review, or a representative sample of the State's
significant work zones. The proposed regulation further states that the
approach used for selecting the representative projects shall be
documented in the review and based on factors such as land use, roadway
type, type of work zone, and extent of the work zone impacts. Language
is added which proposes that each programmatic review shall include an
assessment of work zone safety and mobility performance occurring since
the last review, systematic identification of the States' work zone
management processes and procedures to be improved, action items to be
taken to achieve improvement, divisions/offices responsible for
implementing the actions, and the estimated timeline for
implementation. Language is also added that would require States to
monitor work zone performance annually and report that performance to
FHWA at the end of the third year after the most recent programmatic
review. Given the longer time that would now be allowed between
reviews, this proposed requirement emphasizes the need to monitor work
zones on a continuous basis rather than simply evaluating a sample of
work zones at 5-year intervals.
The regulatory language published in 2004 indicated that
appropriate personnel who represent the various stages of project
development, and different offices within the State that are involved
in work zone management, should participate in the process (now
programmatic) review but did not explicitly call out agency functions
and offices that should be involved in the review. Therefore, FHWA
proposes to add Sec. 630.1008(d)(2) to explicitly identify the various
State divisions or offices that shall be examined as part of the
programmatic review, including but not limited to project planning,
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. The remaining language in this section would
be revised as Sec. 630.1008(e)(3). The FHWA proposes to add ``and
implementation'' after ``project development'' to keep it consistent
with the similar statement in Sec. 630.1006. The FHWA also proposes to
remove the last sentence of the remaining language in the existing
version of this section since it simply describes the intent of process
reviews and is not essential to the implementation of the regulation.

Sec. 630.1010 Significant Projects

The FHWA proposes to revise Sec. 630.1010(c) in response to
directives included in BIL. Specifically, the paragraph would be
changed to state that projects on the Interstate System within the
boundary of a designated Transportation Management Area (TMA) that
require intermittent or continuous lane closures for 3 or more
consecutive days shall be considered significant projects.
The FHWA also proposes to add a new Sec. 630.1010(d) to indicate
that States shall not be required to develop or implement the TO or PIO
components of a TMP for a highway project not on the Interstate System
if the project is not deemed significant by the State. Although the
existing language appeared to already allow this, this additional
paragraph would emphasize that point more directly. This proposed
addition would require that the previous paragraph (d) be renumbered as
Sec. 630.1010(e).

Sec. 630.1012 Project-Level Procedures

The FHWA proposes to revise Sec. 630.1012(b) describing the TMP.
The first full sentence would be moved to the Sec. 630.1004
definitions and explanation of terms. The second sentence would be
edited to utilize the TO and PIO acronyms previously defined Sec.
630.1004.
The FHWA proposes to revise Sec. 630.1012(b)(1) describing a TTC
plan. The second sentence of this paragraph is superfluous to the
intent of the regulation and would be deleted in its entirety. The
American Association of State Highway and Transportation Officials
(AASHTO) ``Roadside Design Guide'' that is incorporated by reference
would be updated to the 2011 edition. This 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.
Section 630.1012(b)(3) would be edited slightly to use the term
``PIO'' when discussing the public information and outreach component
of a TMP when used.
The FHWA also proposes to delete Sec. Sec. 630.1012(d)(1) and
630.1012(d)(2) from the regulation. Both paragraphs are informational
only and are not needed.

Sec. 630.1016 Compliance Date

The FHWA proposes that the compliance date be 12 months after
publication of the final rule in the Federal Register. This would allow
States time to implement the proposed changes in requirements. In
addition, FHWA proposes to specify that the States' next work zone
programmatic review would be due on December 31, 2025, and once every 5
years thereafter.

Subpart K--Temporary Traffic Control Devices

In 2007, at 72 FR 68489, FHWA added a new subpart K to 23 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 did decrease significantly during the latter half
of that decade, from a high of 1,068 work zone fatalities in 2004 to
590 fatalities in 2011.\19\ Unfortunately, since then that trend has
reversed, growing from 590 fatalities in 2011 to 857 fatalities in 2020
(the most recent year of available national work zone fatality data).
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\19\ Fatality Analysis Reporting System (FARS) maintained by
NHTSA and is available at the following URL: http://www.fars.nhtsa.dot.gov/.
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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,

[[Page 64840]]

that number has increased to 53 percent.20 21
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\20\ Census of Fatal Occupational Injuries. Bureau of Labor
Statistics, US. Department of Labor, Washington, DC. Accessible at
https://www.bls.gov/iif/overview/cfoi.htm.
\21\ Worker Fatalities and Injuries at Road Construction Sites.
National Work Zone Safety Information Clearinghouse. Accessible at
https://workzonesafety.org/work-zone-data/worker-fatalities-and-injuries-at-road-construction-sites/.
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Among other provisions, the initial NPRM for Subpart K, published
November 1, 2006, at 71 FR 64173, proposed that ``. . . . positive
protective measures shall be required to separate workers from
motorized traffic in all work zones conducted under traffic in areas
that offer workers no means of escape (e.g., tunnels, bridges, etc.)
unless an engineering analysis determines otherwise.'' \22\ The FHWA
received a substantial number of comments to the NPRM. While overall
the responses were supportive of the intent of the proposed rule,
several of the respondents noted that the language imposed the
requirements without any supporting research indicating that the
proposed criteria were appropriate.\23\ This created significant
concerns with some respondents, who viewed the requirements as
arbitrary and overly prescriptive. The FHWA, in response to the
comments, acknowledged the lack of available data and research
regarding vehicle intrusions, and modified the final rule language to
require the need for longitudinal traffic barrier and other positive
protection devices to be based on an engineering study. The final rule
also required States to consider use of positive protection where such
devices offer the highest potential for increased safety for workers
and road users. The FHWA retained the conditions listed in the 2006
NPRM as examples of situations where positive protection use shall be
considered and added roadside hazards such as drop-offs or unfished
bridge decks that will remain overnight or longer as other examples.
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\22\ Notice of Proposed Rulemaking 23 CFR part 630 Temporary
Traffic Control Devices. Federal Register, Vol. 71, No. 211,
November 1, 2006.
\23\ Final Rule, 23 CFR part 630 Subpart K, Temporary Traffic
Control Devices. Federal Register, Vol. 72, No. 233, December 5,
2007.
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Language in the Moving Ahead for Progress in the 21st Century Act
(MAP-21) signed into law on July 6, 2012, directed FHWA to modify
Subpart K to re-incorporate the original language proposed in the 2006
NPRM related to criteria for requiring positive protection.\24\
However, research and data did not support the thresholds stated in the
law. A study using the Roadside Safety Analysis Program (RSAP) and
available data from New York State regarding work zone intrusion crash
severities indicated that positive protection use in work zones could
be justified using benefit-cost analyses in many cases, but on higher
volume roadways and for longer duration projects than were specified in
the law language.25 26 The FHWA funded a separate benefit-
cost analysis, using a different methodology, to evaluate the efficacy
of modifying Subpart K language and also concluded that the thresholds
for positive protection use stated in MAP-21 could not be
justified.\27\ Another study using an updated version of RSAP and
updated cost values still resulted in recommendations for positive
protection use in work zones that were higher than specified in the
MAP-21 language.\28\ Despite the lack of research findings supporting
the criteria, reference to the MAP-21 language was retained in the
Fixing America's Surface Transportation (FAST) Act, signed into law on
December 4, 2015.\29\
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\24\ Moving Ahead for Progress in the 21st Century Act (MAP-21).
Public Law 112-141, Section 1405, Highway Worker Safety, July 6,
2012.
\25\ Ullman, G.L., M.D. Finley, J.E. Bryden, R. Srinivasan, and
F.M. Council. Traffic Safety Evaluation of Nighttime and Daytime
Work Zones. NCHRP Report 627. Transportation Research Board of the
National Academies, Washington, DC, 2008.
\26\ Ullman, G.L., V. Iragavarapu, and D. Sun. Work Zone
Positive Protection Guidelines. Report No. FHWA/TX-11/0-6163-1.
Texas Transportation Institute, College Station, TX, May 2011.
\27\ Support for MAP-21 Section 1405: Cost-Benefit Analysis.
Unpublished report prepared for FHWA. March 12, 2013.
\28\ Ullman, G.L. and V. Iragavarapu. Work Zone Positive
Protection Guidelines for Idaho. Report No. FHWA-ID-14-228. Texas
A&M Transportation Institute, College Station, TX, November 2014.
\29\ Fixing America's Surface Transportation Act (FAST Act).
Public Law 114-94. Section 1427, Highway Work Zones, December 4,
2015.
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While the results of the various analyses have not supported the
inclusion of the specific thresholds of the 2006 NPRM language into the
Subpart K regulation, there is reason to revise the rule at this time.
It has been over 15 years since the 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 (AFADs), 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 rule
references guidelines and other documents that have been superseded by
newer publications, and the rule needs to be revised to reflect the
proper publication references.

Section-by-Section Discussion of the Proposed Revisions to Subpart K

Sec. 630.1104 Definitions

Proposed revisions to Sec. 630.1106(b) of the rule would specify
that States are to perform an engineering study to guide decisions
regarding the use of positive protection devices to prevent the
intrusion of motorist traffic into the workspace and other potentially
hazardous areas in the work zone, use of exposure control measures to
avoid or minimize worker exposure to motorized traffic and road user
exposure to work activities, and use of other traffic control measures.
Therefore, FHWA proposes to add a definition of an engineering study to
this section.
Next, NCHRP 350 has been superseded with the Manual of Assessing
Safety Hardware (otherwise known as MASH), American Association of
State Highway and Transportation Officials, AASHTO. The FHWA's
longstanding policy is that all roadside safety hardware installed on
the National Highway System (NHS) be crashworthy. As the MASH
implementation process moves forward, there no longer is a need to call
out the crashworthiness requirements that positive protection devices
shall meet. Therefore, FHWA proposes that the text ``. . . National
Cooperative Highway Research Program (NCHRP) Report 350, Recommended
Procedures for the Safety Performance Evaluation of Highway Features,
1993, Transportation Research Board, National Research Council'' and
subsequent language that incorporates by reference that report into the
regulation be deleted.

Sec. 630.1106 Policy and Procedures for Work Zone Safety Management

The FHWA proposes to modify Sec. 630.1106(b) 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. In addition, new details are proposed to
provide characteristics of an engineering

[[Page 64841]]

study and examples of the types of engineering decisionmaking tools
that could be used in the engineering study.
The FHWA also proposes to modify the text for paragraph (b)(2) from
``Anticipated traffic speeds through the work zone'' to ``Anticipated
operating conditions including traffic volume, vehicle mix, and speeds
through the work zone.'' Paragraph (b)(3) would then be modified from
``Anticipated traffic volume'' to ``Anticipated traffic safety
impacts,'' paragraph (b)(4) would be deleted, and the remaining item
list would be renumbered.

Sec. 630.110 Work Zone Safety Management Measures and Strategies

The FHWA proposes to modify Sec. 630.1108(a), Positive Protection
Devices, to remove redundant language indicating that decisions
regarding the use of longitudinal traffic barrier and other positive
protection devices shall be based on an engineering study, as this was
already stated in Sec. 630.1106(b). The FHWA also proposes that this
section be revised to require 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. This language is
consistent with that initially proposed in the 2006 Subpart K NPRM and
in MAP-21 for these situations. The remaining portion of this section
would retain the existing language requiring positive protection
devices to 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.
The FHWA proposes to modify the list of technologies and strategies
in Sec. 630.1108(c), Other Traffic Control Measures. Specifically,
FHWA proposes that paragraph (c)(7) be modified to include the use of
automated flagger assistance devices (AFADs) in addition to enhanced
flagger station setups already mentioned. Paragraph (c)(16) would be
modified from automated speed enforcement to speed safety cameras,
which is the preferred title of the technology as an FHWA proven safety
countermeasure.\30\ Two additional technologies, protection vehicles
and intelligent transportation systems (ITS) and other advanced
technology solutions and strategies, are additionally proposed as
paragraphs (c)(21) and (c)(22).
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\30\ Speed Safety Cameras. FHWA-SA-21-070. FHWA, U.S. Department
of Transportation, Washington, DC.
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Sec. 630.1110 Maintenance of Temporary Traffic Control Devices

The FHWA proposes to revise the internet website addresses of the
American Traffic Safety Services Association's (ATSSA) ``Quality
Guidelines for Work Zone Traffic Control Devices,'' the Illinois
Department of Transportation ``Quality Standards for Work Zone Traffic
Control Devices,'' and the Minnesota Department of Transportation
``Quality Standards--Methods to determine whether the various traffic
control devices are Acceptable, Marginal, or Unacceptable.'' These
documents are currently available, but the website addresses have
changed since subpart K was originally issued in 2007.

Discussion Under 1 CFR Part 51

The FHWA is incorporating by reference the more current versions of
the manuals listed herein. Specifically, FHWA incorporates by reference
Chapter 9 of the AASHTO ``Roadside Design Guide: Traffic Barriers,
Traffic Control Devices, and other Safety Features for Work Zones'' but
will incorporate the 2011 edition instead of the 2002 edition. This
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. In addition, FHWA incorporates by
reference its 2009 ``Manual on Uniform Traffic Control Devices for
Streets and Highways,'' including Revisions No. 1 and No. 2, dated May
2012, and No. 3 dated August 2022. 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 documents that FHWA is incorporating by reference are
reasonably available to interested parties, primarily State DOTs, local
agencies, and Tribal governments carrying out Federal-aid highway
projects. These documents represent the most recent refinements that
professional organizations have formally accepted and are currently in
use by the transportation industry. The documents incorporated by
reference are 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. 1314094 (``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 proposed rule would not be economically
significant for purposes of E.O. 12866. The proposed rule would not
have an annual effect on the economy of $200 million or more. The
proposed rule would not adversely affect in a material way the economy,
any sector of the economy, productivity, competition, or jobs. In
addition, the proposed 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 proposed 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 proposed regulatory action would only directly
impact 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 proposed
rule will not have a significant economic impact on a substantial
number of small entities.

Unfunded Mandates Reform Act of 1995

This proposed rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995

[[Page 64842]]

(Pub. L. 104-4, 109 Stat. 48). This proposed 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 proposed rule has been analyzed in accordance with the
principles and criteria contained in E.O. 13132, and FHWA has
determined that this proposed rule would not have sufficient federalism
implications to warrant the preparation of a federalism assessment. The
FHWA also has determined that this proposed rule would not preempt any
State law or State regulation or affect the States' ability to
discharge traditional State governmental functions.

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 proposed 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 proposed rule.

Executive Order 13175 (Tribal Consultation)

The FHWA has analyzed this proposed 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 proposed 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 proposed 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 proposed rule does not raise any environmental
justice issues.

Regulation Identifier Number

A 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, Reporting and
recordkeeping requirements, Traffic regulations.

Issued under authority delegated in 49 CFR 1.81 and 1.85.

Shailen P. Bhatt,
Administrator, Federal Highway Administration.

In consideration of the foregoing, FHWA proposes to amend 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, section 1303.

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 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
all 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.
Highway workers include, but are not limited to, personnel of the
contractor, subcontractor, agency, utilities, and law

[[Page 64843]]

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. 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 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, and the rate of highway
worker fatalities and injuries per hours of work activity, 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.
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.
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\2\ see MUTCD, Part 6, ``Temporary Traffic Control''
(incorporated elsewhere in this subpart).
---------------------------------------------------------------------------

Work zone crash \3\ 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.
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\3\ see ``Model Minimum Uniform Crash Criteria Guideline''
(MMUCC), 5th Ed. (Electronic), 2017, produced by NHTSA. Available at
the following internet website: https://www.nhtsa.gov/mmucc-1.
---------------------------------------------------------------------------

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; 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.
A 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 performance, such as
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 or 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 partnership with 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 shall
develop and implement systematic procedures to assess potential work
zone impacts to all road users and highway workers 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, safety surrogate data (e.g., speed differentials,
hard braking and other data from connected and autonomous vehicles),
available operational information (e.g., speeds, travel times, queue
length and duration), and available exposure data (e.g., number of
projects, number and length of lane closures, vehicle-miles traveled
through work zones) to monitor and manage work zone impacts for
specific projects during implementation and to perform its work zone
programmatic reviews.
(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

[[Page 64844]]

performance of all work zones or 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 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, divisions or offices
responsible for implementing the actions, and estimated timeline for
implementation.
(3) States shall use crash data, available safety surrogate data
(e.g., speed differentials, hard braking, and other data from connected
and autonomous vehicles), operational data, and the performance
measures specified in their work zone policy to conduct the assessment.
To ensure assessment of the safety and mobility performance of their
work zones on a continuous basis, States shall monitor performance
annually and report that performance to FHWA at the end of the third
year after the most recent programmatic review.
(4) The work zone programmatic review shall include examination of
efforts across all 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) A State shall not be required to develop or implement the TO or
PIO components of a TMP (as described in section Sec. 630.1012(b)) for
a highway project not on the Interstate System if the project is not
deemed significant by the State.
(e) 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 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.

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). For significant projects
(as described in Sec. 630.1010), the State shall develop a TMP that
consists of a TTC plan and addresses both transportation operations
(TO) and public information and outreach (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) and with the work zone
hardware recommendations in Chapter 9 of the AASHTO Roadside Design
Guide (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

[[Page 64845]]

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 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 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 [DATE ONE YEAR AFTER THE EFFECTIVE DATE]. The next work zone
programmatic review will be due December 31, 2025, and once every 5
years thereafter. 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 the Federal
Highway Administration (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; (202) 366-8043; https://ops.fhwa.dot.gov/contactus.htm. For information on the availability of this material at
NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or
email fr.inspection@nara.gov. The material may be obtained from the
following sources:
(a) AASHTO, American Association of State Highway and
Transportation Officials, 555 12th Street NW, Suite 1000, Washington,
DC 20004; (202) 624-5800; website: https://store.transportation.org/.
(1) AASHTO Roadside Design Guide: ``Traffic Barriers, Traffic
Control Devices, and Other Safety Features for Work Zones'', 2011;
approved for Sec. 630.1012.
(2) [Reserved]
(b) FHWA, Federal Highway Administration, 1200 New Jersey Avenue
SE, Washington, DC 20590; telephone (202) 366-1993; website: https://mutcd.fhwa.dot.gov.
(1) Manual on Uniform Traffic Control Devices for Streets and
Highways (MUTCD), as follows; approved for Sec. Sec. 630.1002;
630.1012:
(i) 2009 edition, November 4, 2009.
(ii) Revision No. 1, dated May 2012.
(iii) Revision No. 2, dated May 2012.
(iv) Revision No. 3, dated June 2022.
(2) [Reserved]

Subpart K--Temporary Traffic Control Devices

0
3. Amend Subpart K by removing the authority citation.
0
4. Amend Sec. 630.1104 by adding, in alphabetical order, the
definition of ``Engineering Study'' and revising the definition of
``Positive Protection Devices'' to read as follows:

Sec. 630.1104 Definitions.

* * * * *
Engineering Study means the comprehensive 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 safety
manage work zones.
* * * * *
Positive Protection Devices means devices that contain or redirect
vehicles.
* * * * *
0
5. Amend Sec. 630.1106 by revising paragraph (b) to read as follows:

Sec. 630.1106 Policy and procedures for work zone safety management.

* * * * *
(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 and the AASHTO
Roadside Design Guide, as well as project characteristics and factors.
The strategies and devices to be used may be determined by a project-
specific engineering study or determined from agency guidelines
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,
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 decisionmaking 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 cos and duration.
* * * * *
0
6. Amend Sec. 630.1108 by revising paragraphs (a), (c)(7), (c)(16),
and (c)(20), and adding paragraphs (c)(22) and (c)(23) to read as
follows:

Sec. 630.1108 Work zone safety management measures and strategies.

(a) Positive Protection Devices. At a minimum, agencies shall use
positive

[[Page 64846]]

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:
* * * * *
(c) * * *
(7) Enhanced flagger station setups or use of automated flagger
assistance devices (AFADs);
* * * * *
(16) Speed Safety Cameras (where permitted by State/local laws):
* * * * *
(20) Public information and traveler information;
* * * * *
(22) Protection vehicles; and
(23) Intelligent Transportation Systems (ITS) and other advanced
technology solutions and strategies.
* * * * *
0
7. Amend Sec. 630.1110 by revising footnote 1 to read as follows:

Sec. 630.1110 Maintenance of temporary traffic control devices.

* * * * *
\1\ The American Traffic Safety Services Association's (ATSSA)
Quality Guidelines for Work Zone Traffic Control Devices uses photos
and written descriptions to help judge when a traffic control device
has outlived its usefulness. These guidelines are available for
purchase from ATSSA through the following URL: https://www.atssa.com/ATSSA-Store/Product-Miscellaneous#/storefront/9df4b401-c3e9-e811-a863-000d3a140bb5. Similar guidelines are available from various State
highway agencies. The Illinois Department of Transportation ``Quality
Standards for Work Zone Traffic Control Devices'' is available online
at https://idot.illinois.gov/Assets/uploads/files/Doing-Business/Manuals-Guides-&-Handbooks/Highways/Safety-Engineering/Traffic%20Control%20Field%20Manual%20for%20IDOT%20Employees%20(April%202
016).pdf. The Minnesota Department of Transportation ``Quality
Standards--Methods to determine whether the various traffic control
devices are Acceptable, Marginal, or Unacceptable'' is available online
at http://www.dot.state.mn.us/trafficeng/publ/fieldmanual/qualitystandards.pdf.

[FR Doc. 2023-19701 Filed 9-19-23; 8:45 am]
BILLING CODE 4910-22-P