[Federal Register Volume 89, Number 212 (Friday, November 1, 2024)]
[Rules and Regulations]
[Pages 87282-87299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25065]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 630

[Docket No. FHWA-2022-0017]
RIN 2125-AG05


Work Zone Safety and Mobility and Temporary Traffic Control 
Devices

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The FHWA amends its regulations that govern traffic safety and 
mobility in highway and street work zones. The FHWA recognizes that 
increasing road construction activity on our highways can lead to 
travel disruptions which could potentially result in congestion and 
crashes, as well as loss in productivity and public frustration with 
work zones. The changes will facilitate consideration of the broader 
safety and mobility impacts of work zones in a more coordinated

[[Page 87283]]

and comprehensive manner across project development stages.

DATES: This final rule is effective December 2, 2024. The incorporation 
by reference of certain publications listed in this rule is approved by 
the Director of the Federal Register as of December 2, 2024.

FOR FURTHER INFORMATION CONTACT: Mr. Jawad Paracha, Office of 
Transportation Operations (HOTO-1), (202) 366-4628, or via email at 
<a href="/cdn-cgi/l/email-protection#eea48f998f8ac0be8f9c8f8d868fae8a819ac0898198"><span class="__cf_email__" data-cfemail="9bd1faecfaffb5cbfae9faf8f3fadbfff4efb5fcf4ed">[email protected]</span></a>, or Mr. William Winne, Office of the Chief 
Counsel (HCC-30), (202) 366-1379, or via email at 
<a href="/cdn-cgi/l/email-protection#0f58666363666e6221586661616a4f6b607b21686079"><span class="__cf_email__" data-cfemail="184f717474717975364f7176767d587c776c367f776e">[email protected]</span></a>. Office hours are from 8:00 a.m. to 4:30 p.m., 
E.T., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    This document, the Notice of Proposed Rulemaking (NPRM), and all 
comments received may be viewed online through the Federal eRulemaking 
portal at 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 U.S. Government Publishing Office's 
website at www.GovInfo.gov.

Background

    The principal mission of DOT is to ensure America has the safest, 
most efficient, and modern transportation system in the world. This 
system boosts our economic productivity and global competitiveness and 
enhances the quality of life in communities both rural and urban. We 
depend on transportation for access to jobs, to enable us to conduct 
our business, to supply us with services and goods, and to facilitate 
our leisure and recreational activities. The Department's mission is 
accomplished through strategic goals pertaining to safety, economic 
strength and global competitiveness, equity, climate and 
sustainability, transformation, and organizational excellence.
    An efficient and well-maintained roadway network is a critical 
component of our overall transportation system. Our roadway network 
must be continuously monitored and repaired to keep it functioning. 
Periodically, roadways must also be rehabilitated, reconstructed, or 
otherwise improved. Work zones are a necessary part of maintaining and 
upgrading our aging roadway infrastructure. The FHWA strongly 
encourages that work zones be implemented and maintained as safely as 
possible, and with the least possible amount of travel disruption. 
Doing so directly supports DOT's safety strategic goal, facilitates the 
movement of people and goods while work occurs on our highways, and is 
essential for maintaining economic strength and global competitiveness. 
Similarly, effective work zone management also ensures that work zone 
impacts do not unduly burden any one user group, and that appropriate 
efforts are taken to mitigate the differential impacts caused by work 
zones. Congestion generated by work zones contributes to vehicular 
pollution; reducing congestion undoubtedly supports DOT goals 
pertaining to climate and sustainability. Continuous development and 
support of new technologies, strategies, and uses of new sources of 
data for work zone management relate directly to the Department's 
transformation and organizational excellence goals.

Subpart J--Work Zone Safety and Mobility Overview

    Over the last two decades, significant strides have been made in 
managing work zone safety and mobility, with States establishing 
overarching work zone safety and mobility policies and implementing 
processes to better understand and manage work zone impacts (e.g., 
implementing processes for significant projects, applying intelligent 
technologies for work zone operations, measuring work zone 
performance). However, opportunities still exist to improve the 
consistency and continuity of work zone management practices across 
States, including proactively monitoring and managing work zone impacts 
of projects during implementation and leveraging available data sources 
for data-driven work zone performance reviews. Work zones continue to 
have significant safety and mobility impacts on our transportation 
system, which are further expected to increase due to increased road 
construction and rehabilitation projects funded by the Bipartisan 
Infrastructure Law (BIL). Further, Congress, through the BIL, required 
FHWA to update the process review and significant projects sections.
    In light of the above, FHWA published an NPRM on September 20, 
2023, at 88 FR 64836, to update Subpart J to meet current and future 
work zone management needs while also making the subpart compliant with 
the BIL. The key changes proposed in the NPRM included: incorporating 
safety and mobility performance measures in States' work zone policies; 
increasing the reporting interval for work zone process reviews from 2 
to 5 years (as per the BIL) and reframing process reviews to 
programmatic reviews; clarifying certain unclear terms; and clarifying 
the significant projects and associated Transportation Management Plan 
(TMP) criteria for Interstate and non-Interstate projects (as per the 
BIL).
    Several States, a few trade associations, and some private industry 
representatives provided responses to the NPRM. Most State department 
of transportation (State DOT) commenters agreed with the intent and 
concepts proposed in the NPRM but they recommended revisions to 
minimize regulatory burden, increase flexibility and scalability, and 
make the provisions more practical to apply in the field. States also 
noted that some of the terms used in the proposed rule were ambiguous 
and lent themselves to subjective interpretation, and asked for 
clarification on the compliance dates. In this final rule, FHWA has 
addressed the comments received in response to the NPRM that are within 
the scope of this rulemaking. The regulation addresses the comments 
related to flexibility and scalability of provisions; revises, 
eliminates, or clarifies ambiguous terms pointed out by the commenters; 
and clarifies compliance timeframes.
    The final rule revises Sec. Sec.  630.1004, 630.1006, 630.1008, 
630.1010, 630.1012, 630.1014, and 630.1016 of the existing rule 
published in 2004 to clarify certain aspects of the regulation and to 
update and provide additional emphasis on certain elements. The 
regulation will enhance the current state of practice in work zone 
management by promoting data-driven assessment of work zone 
performance, motivating agencies to conduct a thorough review of work 
zone management processes, and encouraging comprehensive assessment and 
management of work zone safety and mobility impacts. This final rule 
incorporates new definitions and clarifies some existing definitions; 
includes a requirement in States' Work Zone Safety and Mobility 
Policies to define the safety and mobility performance measures that 
States will monitor and report; reframes Work Zone Process Reviews to 
Work Zone Programmatic Reviews (WZPR), emphasizing the importance of 
reviewing all aspects of a State's work zone management program; 
changes the WZPR reporting timeframe from every 2 years to every 5 
years to comply with the BIL; strengthens the requirement for States to 
develop and implement work zone assessment and management procedures 
with an added notion of addressing impacts to all anticipated road 
users and highway workers; and clarifies the significant project and 
TMP

[[Page 87284]]

criteria for Interstate and Non-Interstate projects to comply with the 
BIL.

Subpart K--Temporary Traffic Control Devices Overview

    In 2007, at 72 FR 68489, FHWA added a new Subpart K to 23 Code of 
Federal Regulations (CFR) part 630 to facilitate the appropriate use 
of, and expenditure of funds for, uniformed law enforcement officers, 
positive protective measures between workers and motorized traffic, and 
installation and maintenance of temporary traffic control devices 
during construction, utility, and maintenance operations. The intent of 
the regulation was to reduce both worker and motorist fatalities and 
injuries in work zones. Overall, work zone fatalities decreased 
significantly during the latter half of that decade, from a high of 
1,068 work zone fatalities in 2004 to 590 fatalities in 2011.\1\ 
Unfortunately, since then that trend has reversed, growing from 590 
fatalities in 2011 to 891 fatalities in 2022 (the most recent year of 
available national work zone fatality data). Work zones continue to 
have significant safety and mobility impacts on our transportation 
system, which are further expected to increase due to increased road 
construction and rehabilitation projects funded by the BIL.
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    \1\ Fatality Analysis Reporting System (FARS) maintained by 
NHTSA and is available at the following URL: 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, 
that number has increased to 53 percent.<SUP>2 3</SUP>
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    \2\ Census of Fatal Occupational Injuries. Bureau of Labor 
Statistics, U.S. Department of Labor, Washington, DC. Accessible at 
https://www.bls.gov/iif/overview/cfoi.htm.
    \3\ 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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    It has been over 15 years since the Subpart K rule was first 
published. New technologies, such as work zone intelligent 
transportation systems (also referred to as smart work zones) and 
automated flagger assistance devices (AFAD), have become dependable 
tools that are now readily available to help mitigate the safety and 
mobility impacts of work zones and should be listed as options to 
consider within the regulation. Other advanced technologies to support 
connected and automated vehicle travel through and around work zones 
continue to be developed and deployed. Conversely, despite sufficient 
time to develop appropriate procedures to do so, adoption of the 
requirement to base decisions regarding the need for longitudinal 
traffic barriers and other positive protection devices on an 
``engineering study'' have been uneven across the States. A need exists 
to strengthen the rule with regard to what constitutes an engineering 
study. Finally, the existing regulation references guidelines and other 
documents that have been superseded by newer publications.
    In light of the above, FHWA published an NPRM on September 20, 
2023, at 88 FR 64836, to update Subpart K to meet current and future 
work zone safety needs. The regulations proposed in the NPRM were 
intended to facilitate improved agency guidelines backed by engineering 
research to determine the use of positive protection and other 
strategies. In addition, the proposed regulations mandated the use of 
positive protective strategies to minimize worker exposure to motorized 
traffic in work zones with high anticipated operating speeds that 
provide workers no means of escape from motorized traffic intruding 
into the workspace. Several States, a few trade associations, and some 
private industry representatives provided responses to the NPRM. While 
most of the commenters agreed with the intent and the concepts proposed 
in the NPRM, they recommended that the proposed provisions be revised 
and altered to make them practical for application in the field. The 
commenters identified the need for flexibility and scalability in the 
implementation of the provisions of the proposed rule; noted that some 
of the terms used in the proposed rule were ambiguous and lent 
themselves to subjective interpretation; and asked for clarification on 
compliance timeframes of the final rule. In this final rule, FHWA has 
addressed the comments received in response to the NPRM that are within 
the scope of this rulemaking. The regulation addressed the comments 
related to flexibility and scalability of provisions; revised, 
eliminated, or clarified ambiguous terms pointed out by the commenters; 
and clarified compliance timeframes.
    The final rule revises Sec. Sec.  630.1104, 630.1106, 630.1108, and 
630.1110 of the existing rule published in 2007 to clarify certain 
aspects of the regulation and to update and provide additional emphasis 
to certain elements that have not seen the quality of implementation 
that was initially envisioned. The final rule also adds Sec.  630.1112 
to the existing rule to clarify the compliance timeframe. The final 
rule incorporates new definitions and clarifies some existing 
definitions; updates the requirement in States' Work Zone Safety 
Management Policies and Procedures to clarify that agency processes, 
procedures, or guidance regarding strategies and devices to be used for 
the management of work zone impacts, including the use of positive 
protection devices and other strategies, are to be based on an 
engineering study; updates the requirement in States' Work Zone Safety 
Management Policies and Procedures to provide characteristics of an 
engineering study and examples of the types of engineering 
decisionmaking tools that can be used in the engineering study; and 
modifies Sec.  630.1108(a) to: (i) require that positive protection 
devices be used in work zones with high anticipated operating speeds 
that provide workers no means of escape from motorized traffic 
intruding into the workspace unless an engineering study determines 
otherwise; and (ii) remove redundant language indicating that decisions 
regarding the use of longitudinal traffic barriers and other positive 
protection devices shall be based on an engineering study.

Profile of Commenters

    A total of 53 parties commented on the NPRM. Of these, 35 were from 
State DOTs, 12 were from trade associations, 3 were from private 
companies, and 3 were from private citizens. Representatives from 20 
State DOTs provided 35 responses. The 20 States represented a diverse 
range of geographies from across the country. The DOTs of Idaho, South 
Dakota, North Dakota, Wyoming, and Montana provided a consolidated 
response to the NPRM, while the remaining State DOTs submitted 
individual comments. The trade associations that provided comments 
included the Laborers' Health and Safety Fund of North America 
(LHSFNA), American Traffic Safety Services Association (ATSSA), 
Associated General Contractors of America (AGC), American Society of 
Civil Engineers (ASCE), American Road and Transportation Builders 
Association (ARTBA), Motorcycle Industry Council (MIC), American 
Federation of State, County, and Municipal Employees (AFSCME), 
International Safety Equipment Association (ISEA), and Institute of 
Transportation Engineers (ITE).
    The commenters represented a cross-section of job categories across 
DOT functions including planning, engineering, traffic, safety, design, 
construction and contracting.

[[Page 87285]]

Subpart J--Work Zone Safety and Mobility

Overall Position of Commenters

    Most commenters were generally supportive of the intent and stated 
purpose of the proposed revisions. Some commenters offered additional 
comments on specific areas of concern and recommended changes to 
improve the rule's language and interpretability.
    Generally, State DOTs commented that the proposed revisions should 
not have a mandatory impact, but instead allow for flexibility and 
scalability while limiting unintended liability and cost. Five States 
agreed with FHWA's intent and the concepts for improving work zone 
safety and mobility but did not agree with many of the mandatory 
provisions. States also sought clarification on whether FHWA intended 
to mandate the performance measures listed in some of the ``shall'' 
conditions or whether the measures were provided as examples. In 
addition, States asked for clarification on certain ambiguous terms as 
well as the compliance timeframe for the final rule.
    Most State DOT commenters appreciated the updated 5-year reporting 
timeframe for WZPRs but had concerns about the new 3-year performance 
reporting requirement. They commented that the 3-year requirement 
contradicts BIL Sec.  11302 and would require significant commitments 
from its limited staff. In addition, they sought clarification on the 
flexibility for States to choose the number of performance measures and 
specific measures to meet final rule requirements.
    Private sector commenters also offered comments on certain areas of 
concern. Details regarding these issues and FHWA's specific response 
are discussed in the following section, which provides a section-by-
section analysis of the comments.

Section-by-Section Analysis of NPRM Comments and FHWA Response--Subpart 
J

Overview of the Organization of This Section

    This section consists of a detailed discussion on the comments 
received on specific NPRM sections and the FHWA response and resolution 
to the comments. For each section, the following information is 
presented:
    <bullet> Breakdown of the position of the commenters with regards 
to the provisions proposed in that section;
    <bullet> Major issues cited by the commenters; and
    <bullet> FHWA action in response to the comments and explanation of 
the provisions being implemented in the final rule.
    The following paragraphs present a section-by-section analysis and 
resolution of the comments on the NPRM.

Sec.  630.1004 Definitions and Explanation of Terms

    Most commenters were supportive of this section. Some commenters 
offered specific comments on some of the definitions proposed in the 
NPRM. They are discussed as follows:

Definition of ``Agency''

    A commenter pointed out that the term ``agency'' only appears in 
the definitions of ``Highway Workers,'' ``Transportation Management 
Plan,'' and ``Work Zone Programmatic Review.'' The commenter mentioned 
that all remaining sections refer to ``States'' and have no actionable 
items for agencies. The commenter sought clarification on the intent of 
using the term ``agency'' and any final rule provisions or action items 
applicable to local highway agencies or authorities.
    The FHWA will retain the ``Agency'' definition as proposed in the 
NPRM and add clarification in Sec.  630.1010 that provisions in 
Sec. Sec.  630.1010, 630.1012, and 630.1014 apply to State and local 
agencies that receive Federal funding for their work zone projects. The 
FHWA updated the definition of ``Agency'' by adding, ``that receives 
Federal-aid highway funding'' at the end to be consistent with the 
Subpart K definition.

Definition of ``Mobility''

    Four commenters provided input on this definition, with three 
commenters opposed to the deletion of language associated with highway 
worker or road user safety and one being neutral. The three commenters 
suggesting that the language associated with the safety of highway 
workers and road users should not be deleted believe that keeping the 
language intact would help emphasize the fact that safety is a crucial 
aspect that underpins the movement of road users. Another commenter 
suggested adding `level of service' as an example of commonly used 
performance measures.
    As requested by the commenters, FHWA will retain the safety 
language related to highway workers and road users in the mobility 
definition. The FHWA did not add `level of service' as an example 
measure because it is a metric that can be derived from the other 
example metrics included in the provision.

Definition of ``Road Users''

    While FHWA did not propose a definition for ``Road User'' in the 
NPRM, one commenter asked FHWA to clarify the term in relation to the 
use of this term in Sec.  630.1008(b).
    The FHWA declines to add a new definition here but notes that the 
definition for the term ``Road Users'' is provided in 23 United States 
Code (U.S.C.) 148(a)(8).

Definition of ``Safety''

    Ten commenters supported the removal of superfluous language on 
highway worker safety. Four of the commenters suggested removing ``the 
rate of highway worker fatalities and injuries per hours of work 
activity'' from commonly used measures. They suggested this removal due 
to the difficulty of obtaining accurate information for these measures.
    The FHWA understands the difficulty cited by commenters in 
collecting accurate hours of work activity and numbers of highway 
worker fatalities and injuries. To this end, FHWA removed ``the rate of 
highway worker fatalities and injuries per hours of work activity'' 
from the commonly used measures.

Definition of ``Transportation Management Plan''

    Five commenters pointed out that the section-by-section discussion 
of Sec.  630.1004 in the NPRM inaccurately stated that the TMP 
definition includes references to the temporary traffic control (TTC) 
plan and transportation operations (TO) and public information and 
outreach (PIO) components to the TMP.
    The FHWA agrees with the commenters' observation that the TMP 
definition does not provide information about the TTC, TO, and PIO 
components. Sections 630.1010(d) and 630.1012(b) provide a detailed 
explanation of these TMP components. The FHWA added a clarifying 
sentence at the end of the TMP definition that readers can refer to 
Sec.  630.1010(d) and Sec.  630.1012(b) for more information on the TMP 
and its components.

Definition of ``Work Zone Crash''

    Three commenters supported the proposed changes. Two commenters 
asked FHWA to compare the proposed work zone crash definition with the 
Model Minimum Uniform Crash Criteria (MMUCC) definition of secondary 
crashes.\4\ The MMUCC says that

[[Page 87286]]

secondary crashes are identified from the time the initial crash is 
detected, occurring either at the primary crash site or within the 
traffic queue or backup, including those in the opposite direction 
caused by the primary crash. A commenter recommended providing 
additional clarification that the crash tracking requirement is not 
intended to capture any crash within the area of impact, and only 
specifically work-zone-related crashes per the MMUCC.
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    \4\ MMUCC Guideline Model Minimum Uniform Crash Criteria 6th 
edition. National Highway Traffic Safety Administration. Accessed 
at: https://www.nhtsa.gov/file-downloads?p=nhtsa/downloads/MMUCC/.
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    The FHWA did not make any changes to the proposed NPRM language. 
The existing ``Work Zone Crash'' definition in Sec.  630.1004 refers to 
the crash definition in MMUCC, which also addresses secondary crashes 
outside the work zone limits influenced by the primary work zone 
crashes. The FHWA encourages States to include secondary work zone 
crashes in their safety analysis to the extent data are available.

Definition of ``Work Zone Impacts''

    Two commenters supported the proposed changes. One commenter 
recommended adding ``Type of Temporary Traffic Control'' to the list of 
factors for assessing the work zone impacts and extent. Another 
commenter asked for clarification on whether States need to use minimum 
parameters or engineering judgement to assess ``distance between 
workers and traffic and availability of escape paths for workers'' 
factors.
    The FHWA updated the rule language by adding type of temporary 
traffic control as a factor that States can consider for assessing the 
extent of work zone impacts. In addition, FHWA clarifies that States 
can (i) use data from work zone planning and implementation logs to 
identify ``the distance between workers and traffic'' and (ii) a 
combination of data (e.g., work zone type, location, closure status) 
and engineering judgement to assess ``the availability of escape paths 
for workers.'' Workers in this instance refers to flaggers and highways 
workers.

Sec.  630.1006 Work Zone Safety and Mobility Policy

Sec.  630.1006(b) Identification of Safety and Mobility Performance 
Measures in the Policy

    Twenty-one commenters provided comments in response to this 
paragraph. Of these, 12 commenters expressed concerns about the 
inclusion of a list of safety and mobility performance measures within 
the ``shall'' condition of the work zone policy requirement. They 
believe that it gives the impression that FHWA mandates the use of 
these performance measures. The commenters sought clarity on whether 
FHWA mandates the use of these measures or whether they are just 
examples. They also asked whether they can choose performance measures 
not listed in this paragraph and whether there is a minimum number of 
safety and mobility performance measures that each State should 
identify to meet this requirement. A commenter noted that the Manual on 
Uniform Traffic Control Devises (MUTCD) uses American National 
Standards Institute/ISEA (ANSI/ISEA) 107-2015 standard for compliance 
requirements of high-visibility safety apparel for all workers 
performing daytime and nighttime work activity within temporary traffic 
control zone. The commenter suggested adding a new paragraph to 
recognize the new ANSI/ISEA 107-2020, the American National Standard 
for High Visibility Safety Apparel.
    The safety and mobility performance measures included in the NPRM 
are examples and are not mandatory. To avoid confusion, FHWA split the 
proposed sentence into two. The revised first sentence contains the 
requirement for States to identify performance measures in their work 
zone policies. The second sentence provides examples of measures to 
consider. States can comply with this requirement by identifying at 
least one safety and one mobility performance measure, but they are 
encouraged to use as many performance measures as needed to manage the 
performance of their work zones. States may choose performance measures 
that are best suited to their work zone conditions and impacts but they 
must have a documented work zone performance management approach for 
selecting projects, identifying performance measures, and collecting 
performance data. In response to the suggestion to add a new paragraph 
regarding ANSI/ISEA 107-2020, Subpart J incorporates the MUTCD and 
requires the use of Part 6 by reference. Section 6C.05 of the MUTCD 
requires all workers performing daytime and nighttime work activity 
within temporary traffic control zones to wear high-visibility safety 
apparel that meets the Performance Class 2 or 3 requirements of the 
ANSI/ISEA 107-2015 standard or equivalent revisions.

Sec.  630.1006(c) Multi-Disciplinary Team

    Eight commenters provided input on this paragraph. Note that FHWA 
did not propose any changes to existing language related to the multi-
disciplinary team. The only change that FHWA made to this paragraph was 
to assign a paragraph number, ``(c),'' to this sentence. Six commenters 
suggested removing this paragraph to allow States flexibility for 
selecting members for the multidisciplinary team. Two commenters sought 
clarification on whether States can keep this team internal and involve 
external parties only if necessary. Another commenter commented that 
the language in Sec.  630.1006(c) is redundant with Sec.  
630.1008(e)(5).
    The FHWA disagrees with the suggestion of deleting this paragraph 
and retained the language as proposed in the NPRM. The intent of the 
``should'' condition is to encourage States to include members from 
various work zone management divisions in their policy development and 
implementation in a comprehensive manner. States can determine the 
members of their multidisciplinary team based on their needs. The team 
and developed policies can remain internal to the States, but external 
members can be added if deemed necessary. While Sec.  630.1006(c) 
addresses the members that participate in the development and 
implementation of the work zone safety and mobility policy, Sec.  
630.1008(e)(5) addresses the members that participate in the work zone 
programmatic review.

Sec.  630.1008 State-Level Processes and Procedures

Sec.  630.1008(b) Work Zone Assessment and Management Procedures

    Ten commenters provided comments on this paragraph. Among these, 
seven commenters suggested to retain the previous ``should'' condition 
for this requirement instead of elevating to a ``shall.'' These 
commenters also believed that the term ``potential'' in ``potential 
work zone impacts'' could be construed as requiring analysis for 
outcomes that may be unlikely but are nonetheless ``potential'' 
impacts. They recommended replacing the term ``potential'' with 
``likely'' or ``possible'' so that the implementation of this 
requirement can be more practical. A commenter expressed concern with 
the use of term ``all'' in ``all road users and highway workers'' as 
some road users (e.g., pedestrians and bicyclists) might not be 
applicable when assessing impacts on certain work zones. The commenter 
suggested removing the term ``all'' or qualifying with a caveat such as 
``all anticipated road users.'' Another commenter recommended adding 
``(including motorcyclists)'' next to road users.
    The FHWA disagrees with the commenters' suggestion to retain the

[[Page 87287]]

``should'' condition instead of ``shall'' condition. The Work Zone 
Assessment and Management Procedures provision was introduced in 2007 
as a new concept, hence the use of ``should'' was appropriate at that 
time. Since then, States have made significant progress in their work 
zone impacts assessment and management procedures. Therefore, using 
``shall'' will reinforce this progress and facilitate continued 
improvement in work zone safety and mobility nationwide. The FHWA made 
additional changes for clarity and to address the issues cited by the 
commenters.

Sec.  630.1008(c) Work Zone Data

    Thirteen commenters provided comments on this paragraph. Of these, 
eight commenters suggested changing the ``shall'' condition for this 
requirement to a ``should.'' These States noted that the term 
``available'' is missing in front of safety surrogate data. Some 
commenters asked FHWA to clarify its intent in using the term 
``available'' in front of multiple data sources. They commented that 
some data sources might be available in the market but not accessible 
for States to use due to factors such as required subscriptions and 
funding. In addition, five commenters sought clarity on whether FHWA 
mandates the use of performance measures listed in this paragraph or 
whether they are just examples. Two other commenters asked for clarity 
on the term ``specific projects'' and if it is the same as significant 
projects defined in Sec.  630.1010.
    The existing rule already requires States to use data in their work 
zone safety and mobility management processes. The FHWA retained the 
``shall'' condition to facilitate improved data-driven assessments of 
work zone performance nationwide. To address the comment about 
performance measures, FHWA split the paragraph into two sentences in 
the final rule. The revised first sentence presents the requirement, 
and the second sentence identifies example measures for each data 
source. The FHWA's intent in using the term ``available'' in this 
paragraph is not to require States to acquire additional data available 
in the market, but rather to make use of data accessible and available 
to them through existing sources. ``Specific projects'' in this 
paragraph refers to individual projects that State DOTs choose for 
monitoring and management of work zone impacts during implementation. 
Specific projects may include significant or non-significant projects, 
and are selected based on factors such as land use, type of roadway, 
work zone type, and the extent of potential work zone impacts.

Sec.  630.1008(d) Training

    Three commenters provided comments on this paragraph. Note that 
FHWA did not propose any changes to existing language for this 
paragraph. The commenters did not cite any major issues. One commenter 
asked about training and certification requirements pursuant to Sec.  
630.1008(d). Another commenter recommended that State and local roadway 
owners should require a trained and certified Work Zone Supervisor to 
be assigned for each significant project. The third commenter 
recommended to update the paragraph language by adding an established 
time period that informs workers when they should recertify their 
training to ensure workers are thoroughly trained in the best safety 
practices when working in work zones.
    The FHWA did not make any changes to this provision. With regard to 
the commenter's question on training and certification requirements, 
FHWA's position is that State DOTs need to tailor training and 
certification for each role based on their own requirements. For 
example, Virginia DOT's Work Zone Traffic Control Training Requirements 
document \5\ identifies various roles in design, construction, and 
maintenance/operations divisions and their respective training and 
certification requirements. The current state of the practice is that 
most agencies require their staff to be retrained once every 2 to 4 
years. With regard to the comment on retraining, FHWA believes that the 
second sentence in this provision (i.e., States shall require periodic 
training updates that reflect changing industry practices and State 
processes and procedures) addresses the comment by requiring periodic 
training updates that reflect changing industry practices, which 
includes state-of-the-art practices.
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    \5\ https://ops.fhwa.dot.gov/wz/resources/final_rule/webcast/020112wztpdi/rush_ppt/rush.htm.
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Sec.  630.1008(e) Work Zone Programmatic Review

    Eleven commenters provided input on this paragraph. All commenters 
were supportive of this high-level provision. Note that Sec.  
630.1008(e) speaks about the high-level provision for work zone 
programmatic reviews and its reporting timeframe, whereas paragraphs 
Sec.  630.1008(e)(1) through (e)(5) provide more specifics on the 
contents of the work zone programmatic reviews, project selection for 
conducting reviews, data-driven assessment needs, and examination of 
various work zone efforts. Commenters provided separate comments on 
these individual paragraphs, which are discussed following this 
section. Six commenters asked for clarification for the timeframe of 
the data to be included in the 5-year programmatic review. They noted a 
technical concern in the wording that calls for a State to share its 5-
year review with FHWA ``by the end of the 5-year review period.'' They 
suggested that the review period for each WZPR report should include 
the review of work zones from 5 calendar years prior to the year of the 
report. Commenters also asked for clarification on the compliance dates 
for the reframed WZPR requirement. They mentioned that it may take at 
least 12 to 24 months to update their policies and data collection 
practices to meet the new requirements. They asked FHWA to consider 
these factors when identifying the compliance dates/timeframes. A 
commenter recommended application of data driven assessments to a 
representative sample of work zone projects over the 5-year review 
period that justify their inclusion.
    The FHWA finds the approach suggested by the State DOTs for 
Programmatic Reviews' review period (i.e., the review period for each 
WZPR report includes selection and review of work zones from 5 calendar 
years prior to the year of the report) to be reasonable. States may use 
this approach for selecting the review period for their Programmatic 
Reviews. The FHWA addressed comments about compliance timeframes in 
Sec.  630.1016 by indicating that the next Programmatic Review reports 
are due by December 31, 2030. The FHWA reemphasizes that States shall 
use a documented approach for selecting representative projects based 
on factors such as land use (urban and rural locations), roadway type, 
type of work zone, and extent of the work zone impacts.

Sec.  630.1008(e)(1) Work Zone Programmatic Review--Qualification

    Six commenters provided comments on this paragraph. Of these, two 
commenters suggested changing the requirement from ``shall'' to 
``should'' and indicated that this change will allow flexibility to 
States in selection of projects for WZPRs. These two commenters along 
with four other commenters noted a major concern with the use of term 
``all'' in ``all work zones'' and indicated that this implies that 
States shall include all their work zones in their WZPRs. They 
indicated that the term ``all'' is particularly concerning in rural 
areas where there are very few

[[Page 87288]]

projects that qualify as ``significant.'' These commenters suggested 
removing the term ``all'' from the regulation. Another commenter asked 
whether States are required to negotiate and confirm the representative 
project selection approach with the FHWA division offices.
    The FHWA retained the ``shall'' condition and addressed the concern 
raised by multiple commenters by removing the term ``all'' from the 
final rule language. To avoid confusion, FHWA split the first sentence 
into two sentences. The revised first sentence addresses the data-
driven assessment requirement of WZPRs, and the second sentence 
presents the minimum Programmatic Review requirement to include a 
representative sample of the State's work zones over the 5-year period 
being reviewed. This revision provides flexibility to State DOTs to 
select a representative set of projects based on a documented and well-
reasoned approach. To the extent possible, FHWA encourages States to 
include all work zones in their programmatic review to make it a 
comprehensive review of systemwide performance. While States are not 
required to include FHWA division offices in defining the approach for 
representative project selection, they are encouraged to do so.

Sec.  630.1008(e)(2) Explanation of Work Zone Programmatic Review

    Two commenters provided input on this paragraph. One commenter 
suggested changing the requirement from ``shall'' to ``should'' to 
minimize regulatory burden on States. Another commenter commented that 
the terms ``divisions or offices'' used in this paragraph are not 
clearly defined.
    The FHWA retained the ``shall'' condition in the final rule to 
ensure uniform implementation and reporting of WZPRs across the 
country. To make it clear that Programmatic Reviews should identify 
State divisions and offices responsible for implementing action items, 
FHWA added the term ``State'' in front of ``divisions or offices.''

Sec.  630.1008(e)(3) Work Zone Programmatic Review Data and Reporting

    Nine commenters provided comments on this paragraph and opposed the 
provisions in it. A commenter suggested changing the requirement from 
``shall'' to ``should'' to minimize regulatory burden on States. Eight 
commenters indicated that the requirement to report performance at the 
end of the third year might be contradictory to the BIL. Commenters 
noted inconsistent use of the term ``available'' in front of data 
sources. A commenter asked for clarification on contents to be included 
in the 3-year report. Another commenter suggested consistency in use of 
example measures listed in Sec.  630.1008(e)(3) and Sec.  630.1008(c). 
In addition, five commenters sought clarity on whether FHWA mandates 
the use of performance measures listed in this paragraph or whether 
they are just examples.
    The FHWA removed the mid-point performance data reporting from the 
rule provision to address the comments received. The FHWA retained the 
annual performance monitoring requirement. The purpose of the annual 
monitoring is to facilitate continuity in assessing work zone 
performance. States are encouraged to use the performance measures they 
identify in their policies for the annual monitoring and incorporate 
their findings into their 5-year WZPRs. The FHWA added the term 
``available'' in front of all data sources to make it consistent. The 
FHWA removed the performance measures proposed in the Sec.  
630.1008(e)(3) of NPRM and added a sentence noting that agencies can 
use examples of performance measures listed in Sec.  630.1008(c) for 
each data source.

Sec.  630.1008(e)(4) Examination of Other Efforts

    Seven commenters provided comments on this paragraph. Of these, two 
commenters suggested changing the requirement from ``shall'' to 
``should'' to minimize regulatory burden on States. Four commenters 
opposed the use of the term ``all'' in ``all State divisions and 
offices,'' and noted that the selection of applicable divisions or 
efforts to be examined as part of WZPRs varies between States depending 
on factors such as staff and data availability in those divisions. They 
asked whether the efforts listed in the requirement are examples or 
requirements, and if States have flexibility in selection of these 
efforts based on their work zone assessment criteria.
    The FHWA retained the ``shall'' condition in the final rule to 
emphasize the importance of covering all aspects of program planning 
and project development that affect work zone safety and mobility. The 
FHWA removed the term ``all'' in front of ``State divisions or 
offices'' to allow States flexibility to select efforts applicable to 
their work zone safety and mobility assessment. The FHWA further 
clarifies that the efforts listed in Sec.  630.1008(e)(4) apply to work 
zone processes and procedures requirements between Sec.  630.1008(e)(2) 
and Sec.  630.1008(e)(4). The FHWA's intent is for States to select the 
efforts considering the assessment of the work zone safety and mobility 
performance. The FHWA encourages States to involve FHWA division 
offices in selecting efforts, but it is not mandatory.

Sec.  630.1010 Significant Projects

Sec.  630.1010(a) Significant Project Explanation

    Only one commenter provided comments in response to this paragraph. 
Note that FHWA did not propose any changes to existing language for 
this paragraph. This commenter suggested adding the words ``work zone'' 
in between significant projects to distinguish work zone projects from 
other types of projects that may have different impacts and 
requirements.
    The FHWA did not propose any changes to this provision in the NPRM. 
Therefore, FHWA did not make any change to the final rule. With regards 
to the one comment on this topic, the significant project definition 
addresses sustained work zone impacts, and it is implied that these 
projects are work zone projects.

Sec.  630.1010(c) Significant Project Qualification--Interstates

    Four commenters provided comments on this paragraph. Note that FHWA 
did not propose any changes to existing language for this paragraph. 
Three of the commenters recommended deleting this paragraph, noting 
that States have a defined policy under Sec.  630.1010(a) for 
determining significant projects. Two commenters asked FHWA to consider 
providing flexibility for intermittent closures associated with 
preservation and maintenance activities with lower/mitigated impacts on 
the interstate system. Another commenter mentioned that the BIL 
language about significant projects does not include intermittent lane 
closures.
    In compliance with BIL Sec.  11303(a), FHWA retained the language 
as proposed in the NPRM. Although States define their policy under 
Sec.  630.1010(a), work zones on interstates that meet the conditions 
of Sec.  630.1010(c) would still qualify as significant projects. This 
section identifies minimum criteria for significant projects. If a 
State determines a project or a class of projects as not significant, 
they can make use of the State DOT policy in Sec.  630.1010(b) and 
exception process in Sec.  630.1010(d) to file an exception and not 
prepare the PIO and TO components of a TMP. The BIL Sec.  11303(a) 
mentions that ``The Secretary shall amend section 630.1010(c) of title 
23, Code of Federal Regulations, to ensure that only a

[[Page 87289]]

project described in that paragraph with a lane closure for 3 or more 
consecutive days shall be considered to be a significant project for 
purposes of that section.'' The projects described in paragraph Sec.  
630.1010(c) include work zone projects with intermittent or continuous 
lane closures.

Sec.  630.1010(d) Significant Project Qualification--Non-Interstates

    Three commenters provided comments on this paragraph. All of them 
recommend deleting this paragraph, noting that TMP requirements are 
covered in Sec.  630.1012(b).
    The FHWA retained this paragraph because it is required for 
compliance with BIL Sec.  11303(b) and to address TO/PIO requirements 
for non-interstate projects. However, FHWA modified this paragraph to 
simplify the language and make it consistent with the interstate system 
projects requirement. The FHWA also changed the numbering for this 
section Sec.  630.1010(d) in the NPRM to Sec.  630.1010(e). This change 
allows the significant project exceptions for interstate projects 
(i.e., previously Sec.  630.1012(e) in the NPRM) to be next to the 
significant project qualification section (i.e., Sec.  630.1012(c)).

Sec.  630.1010(e) Significant Project Exceptions--Interstates

    One commenter provided comments on this paragraph. Note that FHWA 
did not propose any changes to this paragraph. The commenter requested 
clarity on the process and time frame to request and receive an 
exception from FHWA.
    Since there was no change proposed in the NPRM, FHWA did not make 
any changes to this paragraph in the final rule. With regards to the 
commenter's requested clarification on the process and time frame for 
exceptions, States are encouraged to coordinate with FHWA division 
offices on how to handle exceptions either on a project-by-project 
basis or for a particular project category, in order to streamline and 
simplify the process.

Sec.  630.1012 Project-Level Procedures

Sec.  630.1012(a) Section Overview and (b) Transportation Management 
Plan

    Five commenters provided comments in response to the NPRM preamble 
language of this paragraph. Note that FHWA did not propose any changes 
to existing language for this paragraph in the NPRM. A commenter asked 
FHWA to clarify which agencies would be responsible for developing TMPs 
for projects outside the State DOT's jurisdiction. Further, the 
commenter mentioned that the State should not be required to develop 
and implement TMPs for such projects and manage their impacts. The 
section-by-section discussion of the NPRM's Sec.  630.1004 talks about 
updating the public information component to PIO in the TMP definition. 
However, the TMP definition does not cover the TO and PIO components of 
a TMP. All five commenters pointed out that the preamble discussion on 
expanding public information to PIO is more appropriate in the section-
by-section discussion of Sec.  630.1012(b) as that section explains 
about PIO.
    The FHWA decided to remove the requirement that TTC plans are 
consistent with the work zone hardware recommendations in Chapter 9 of 
the 2011 American Association of State Highway and Transportation 
Officials (AASHTO) Roadway Design Guide (RDG), which had been proposed 
for incorporation by reference in the NPRM. The 4th edition of the RDG 
includes some statements that are no longer accurate (e.g., reference 
to FHWA's approval of crashworthy products by issuing acceptance 
letters). Despite this change in mandatory requirement, agencies are 
encouraged to consider the work zone hardware recommendations in the 
AASHTO RDG when preparing their TTC plan. This RDG document was 
developed by AASHTO to present the concepts of roadside safety 
(including those in work zones) to designers so that the most 
practical, appropriate, and beneficial roadside design can be 
accomplished for each project.
    The FHWA clarifies that the provisions in Sec. Sec.  630.1010, 
630.1012, and 630.1014 apply to all State and local agencies that 
receive Federal funding for their work zone projects. An agency (State 
or local) that receives Federal funds for their work zone projects is 
responsible for developing and implementing TMPs and managing impacts 
of those projects. The FHWA agrees with the commenters and clarifies 
that the description of a public information component in Sec.  
630.1010(d) and Sec.  630.1012(b) has been expanded to PIO to be 
consistent with the intent of that aspect of the TMP.
    The rulemaking to adopt the 11th edition of MUTCD was in progress 
when FHWA published the NPRM for this rule. In December 2023, FHWA 
published the new version of MUTCD. Since Sec.  630.1012(b) refers to 
MUTCD Part 6, FHWA updated the MUTCD reference in Sec.  630.1018 to 
reflect the new version.

Sec.  630.1012(c) Inclusion of TMP in Plans, Specification, and 
Estimates

    Two commenters provided comments on this paragraph. Both suggested 
removing the ``shall'' condition from this paragraph and noted that 
including TMP into Plans, Specification, and Estimates will require 
additional policy and process development, training, and legal review.
    The FHWA did not make any change to this paragraph in the final 
rule. The ``shall'' condition has been in place since the initial Work 
Zone Safety and Mobility Rule published in 2004 and does not introduce 
any new requirements.

Sec.  630.1012(e) Responsible Persons

    Only one commenter provided comments in response to this paragraph. 
The FHWA did not propose any changes to this paragraph in the NPRM. The 
commenter inquired if the trained person referred to in this paragraph 
must meet any ATSSA certification requirements.
    The FHWA did not make any changes to this paragraph. With regards 
to the commenter's question, FHWA does not establish specific training 
and certification requirements, as each agency determines its own.

Sec.  630.1016 Compliance Date

    Eleven commenters provided comments in response to this paragraph. 
Of these, ten commenters asked questions about the compliance date for 
the provision and the timeframe for the mid-point performance summary 
and WZPR reporting. Commenters asked for the effective date to be a 
minimum of 12 months from the date of final rule publication.
    The FHWA changed the compliance date to December 31, 2026, which 
allows at least 24 months for States to comply with the rule. The next 
WZPR reporting date will be December 31, 2030, respectively. In 
addition, FHWA removed the phrase ``and once every 5 years thereafter'' 
as it is already covered in Sec.  630.1008(e).

Subpart K--Temporary Traffic Control Devices

Overall Position of Commenters

    Commenters were generally supportive of the intent and purpose of 
the updates to Subpart K and acknowledged the importance of work zone 
safety, and specifically, worker safety. The commenters offered 
comments on specific areas of concern and recommended changes to 
improve the rule's language. State DOTs expressed concern that the rule 
should

[[Page 87290]]

not mandate provisions but rather it should allow for adequate 
flexibility and scalability while limiting unintended liability and 
cost. States also sought clarification of certain ambiguous terms and 
the compliance timeframe. Private sector commenters also offered 
comments on certain areas of concern. Details regarding these issues 
and FHWA's specific responses are discussed in the following section, 
which provides a section-by-section analysis of the comments.
    The majority of commenters expressed overall support for the 
provisions proposed in the NPRM. While the commenters' overall position 
on the NPRM was supportive, many of these commenters suggested 
modifications and revised language for specific provisions as they 
deemed appropriate.
    Of the six commenters who did not expressly support the updates, 
five of them agreed with FHWA's intent and the concepts for improving 
work zone safety and worker protection, but did not agree with the 
mandatory provisions. They opposed the change proposed in Sec.  
630.1108(a) to require positive protection devices in specific 
conditions unless an engineering study concludes otherwise. To this 
end, they mentioned the specific work zone conditions where these 
requirements would not be practically applicable, and the additional 
investments associated with implementing these strategies. They 
suggested additional changes to specific sections and removal of 
ambiguous terms. They also sought clarification on the compliance 
timeframe for the final rule. The remaining commenter opposed the 
provision for development of broader guidelines based on an engineering 
study that agencies can use for determining the requirement of positive 
protection or other strategies, and also opposed adding the ``high 
anticipated operating speeds'' qualifier in the provision (Sec.  
630.1108(a)) that addresses the positive protection requirement.

Section-by-Section Analysis of Comments and FHWA Response--Subpart K

Sec.  630.1104 Definitions and Explanation of Terms

    Most commenters were supportive of this section. Some commenters 
offered specific comments on some of the definitions proposed in the 
NPRM. They are discussed as follows:

Definition of ``Engineering Study''

    Eight commenters provided input on this definition. All eight 
commenters stated that the term ``comprehensive'' in ``comprehensive 
analysis and evaluation of available pertinent information . . .'' is 
unclear. They recommended deleting this term to be consistent with the 
definition of Engineering Study from the recently published MUTCD 11th 
edition. A commenter suggested adding the term ``temporary'' in front 
of ``traffic control.''
    Keeping consistency with the MUTCD definition, FHWA deleted the 
term ``comprehensive'' from this definition. The term ``traffic 
control'' is used in a broad sense here. As the definition of 
``Engineering Study'' applies to the entire Subpart K, which provides 
guidance on how to approach strategies related to all work-zone-related 
temporary traffic control, FHWA did not add ``temporary'' before 
``traffic control'' in this definition.

Definition of ``Positive Protection Devices''

    Four commenters provided input on this paragraph. Three commenters 
opposed removing the crashworthiness qualifier requirements from the 
definition of positive protection devices. They mentioned that the 
crashworthiness requirements ensure that the various positive 
protection mechanisms used are tested for their appropriateness to 
offer the necessary protections at relevant speeds. The remaining 
commenter asked for a more detailed definition of positive protection 
devices, including example devices that constitute a positive 
protection device.
    The FHWA updated the definition language to include that the 
positive protection devices meet applicable industry crashworthiness 
evaluation criteria. For example, AASHTO's Manual for Assessing Safety 
Hardware includes current industry crashworthiness evaluation criteria. 
Industry crashworthiness evaluation criteria are not regulatory, and 
use of them is voluntary and not required by law. This updated language 
reemphasizes FHWA's longstanding policy that all roadside safety 
hardware installed on the National Highway System be crashworthy. 
States can refer to 23 U.S.C. 112(g)(4) for examples of positive 
protection devices, which include temporary traffic barriers, crash 
cushions, and other strategies to avoid traffic crashes in work zones, 
including full road closures.

Sec.  630.1106 Policy and Procedures for Work Zone Safety Management

Sec.  630.1106(b) Agency Processes, Procedures, or Guidance

    Eight commenters provided input on this section. Three of the 
commenters opposed the requirement that agency processes, procedures, 
or guidance regarding strategies and devices to be used for the 
management of work zone impacts, including the use of positive 
protection devices and other strategies, are to be based on an 
engineering study. The remaining commenter suggested requiring that 
State DOTs conduct a project-specific engineering study instead of 
using agency guidelines based on an engineering study.
    The FHWA decided to remove the reference to the AASHTO RDG. The 4th 
edition of the RDG includes some statements that are no longer accurate 
(e.g., reference to FHWA's approval of crashworthy products by issuing 
acceptance letters). Despite this change, agencies are encouraged to 
consider work zone related information in the AASHTO RDG during the 
development of their processes, procedures, and guidance. The FHWA 
reemphasizes that agencies need to use reasonable and well-documented 
approaches backed by engineering research to develop their processes, 
procedures, or guidance for managing work zone impacts, including using 
positive protection devices and other strategies. Such well-documented 
approaches can provide evidence-based justification for agencies to 
determine the need for positive protection and other strategies to 
ensure worker safety.
    A commenter suggested moving the detailed discussion of engineering 
study from this paragraph to the ``engineering study'' definition in 
Sec.  630.1104.
    The definitions section offers a broader definition of engineering 
study. In contrast, this section provides more in-depth details of who 
conducts the study, how to document it, and applicable tools to perform 
it. Therefore, FHWA believes the details of the engineering study are 
more applicable to this section.
    Another commenter asked for a clear definition of the terms 
``safety impacts'' used in Sec.  630.1106 (b)(3) ``anticipated traffic 
safety impacts.''
    As noted in Sec.  630.1004--definitions of ``Safety'' and ``Work 
Zone Impacts,'' work zone safety impacts refer to work-zone-induced 
potential hazards to road users in the vicinity of a work zone and 
highway workers at the work zone interface with traffic. Anticipated 
traffic safety impacts in this paragraph refer to identifying the 
safety risks to work zone workers and road users associated with

[[Page 87291]]

various factors such as exposure to traffic, time of activity, type of 
activity, intrusion of motorized traffic into activity area, lane 
widths, speed limits, crash frequency and severity prior to work zone 
implementation, and pre-work zone inspection findings. This safety 
impact identification approach can be a simple checklist for short-term 
and limited-exposure projects and a more involved assessment for long-
term and complex projects.
    A commenter recommended adding a minimum safety requirement for 
work zone workers to this section.
    The FHWA does not see a need to add specific requirements for 
worker safety in this paragraph as worker safety is addressed in 
various sections of 23 CFR 630 Subparts J and K, and MUTCD 11th 
edition.
    The FHWA referenced four benefit-cost studies in the NPRM Subpart-K 
discussion section to justify that research and data did not support 
the thresholds stated in the Moving Ahead for Progress in the 21st 
Century Act (MAP-21). In response, two commenters stated that these 
studies overestimated the cost of positive protection devices.
    Studies found it difficult to justify positive protection based on 
crash statistics and benefit cost analysis. Due to limited availability 
and challenges associated with collecting positive protection-specific 
data, FHWA has no new credible information to justify updating the 
implementation thresholds of positive protection strategies.

Sec.  630.1108 Work Zone Safety Management Measures and Strategies

Sec.  630.1108(a) Positive Protection Devices

    Seven commenters provided input on this paragraph. Five commenters 
opposed the use of the ``shall'' condition for implementing positive 
protection devices and mentioned that these devices require a 
significant investment. They suggested retaining the existing rule 
provision language, which would allow States to determine the need for 
positive protection devices based on an engineering study. They also 
mentioned that several previous studies have demonstrated that cost-
benefit analyses do not justify this policy. In addition, two 
commenters noted that the requirement to use positive protection 
devices ``unless an engineering study determines otherwise'' is the 
opposite of the current rule and contrary to the findings of prior 
research. These commenters also asked about the extent of conducting 
these engineering studies across different projects.
    The FHWA made a minor update but retained the remaining language as 
proposed in the NPRM. In the NPRM, FHWA added the ``shall'' condition 
for the use of positive protection in response to increasing trend of 
fatalities in worker struck incidents and to address the requirements 
in MAP-21 Section 1405. Since this is a ``shall'' condition, FHWA is 
restricting the implementation requirement to the situations where the 
workers are most vulnerable, which is work zones with high anticipated 
operating speeds that provide workers no means of escape from motorized 
traffic intruding into the workspace. The FHWA added the ``high 
anticipated operating speeds'' as the majority of fatal work zone 
crashes occur on high-speed roadways such as urban and rural 
interstates, urban and rural principal arterials, and freeways/
expressways.\6\ These facility types generally operate at high speeds 
(45 mph or greater). The FHWA prioritizes the implementation of 
enhanced safety measures in high-risk environments, ultimately 
safeguarding the lives of those working in the most vulnerable 
conditions. The language adopted is consistent with that used in MAP-21 
Section 1405 for these situations. However, agencies may choose to use 
positive protection devices on roadways with lower operating speeds.
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    \6\ https://workzonesafety.org/work-zone-data/work-zone-traffic-crash-trends-and-statistics/.
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    State DOTs may use a tiered approach to conduct engineering studies 
for the type of work zones identified in this provision. Agencies may 
develop their engineering analysis criteria based on factors such as 
type of work, exposure to traffic, expected work zone level of effort, 
worker protection needs, vehicle mix, time of day, geometry, and 
location. For example, Caltrans established Guidelines on the Use of 
Positive Work Zone Protection and Mitigation Measures,\7\ which provide 
a detailed approach and weightage criteria to conduct a safety risk 
assessment and engineering analysis to determine positive protection 
and other mitigation measures for their work zones. This guidance 
document also allows Caltrans to determine the required level of 
positive protection based on the safety risk. The engineering analysis 
may vary from a simple assessment of checklist items summarized in a 
few paragraphs for smaller projects (e.g., short-term maintenance) to a 
more thorough assessment and risk analysis of checklist items for 
larger/complex projects (e.g., bridge approach slab replacement, 
widening projects, and shoulder maintenance).
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    \7\ https://dot.ca.gov/-/media/dot-media/programs/design/documents/final-dib-91_06282021_a11y.pdf.
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    A commenter suggested six recognized serious hazards for 
consideration of positive protection. This commenter also suggested 
including a requirement for States to specify positive protection and 
provide an associated pay item when serious hazards are foreseen or 
encountered on a project unless an agency determines the same to be 
impractical under applicable agency standards.
    The serious hazards recognized by the commenter did not have any 
changes compared to the NPRM language on example scenarios and 
situations for positive protection consideration, except for ``Any 
other situation not specifically outlined above which merits the use of 
positive protection.'' The FHWA updated Sec.  630.1108(b)(4) to include 
``within one lane width'' as an example for determining closeness of 
workers to open travel lanes as a result of work operations. Section 
630.1106(a) addresses the commenter's suggestion for agencies to 
specify the use of positive protection in their policy whereas Sec.  
630.1108(d)(2) addresses the suggestion for inclusion of pay items for 
such specified positive protection.
    A commenter opposed the omission of language associated with use of 
temporary longitudinal barriers to protect workers. This commenter also 
mentioned that the ``high anticipated operating speeds'' qualifier used 
in this positive protection requirement regulation does not fully 
comply with MAP-21.
    As longitudinal barrier is one type of positive protection device, 
the NPRM already covers these barriers in the engineering study 
requirement. In addition, agencies can refer to 23 U.S.C. 112(g)(4) for 
examples of positive protection devices, which include temporary 
traffic barriers, crash cushions, and other strategies. As indicated 
previously, the majority of fatal and injury work zone crashes occur on 
high-speed roadways such as urban and rural interstates, rural 
interstates, urban and rural principal arterials, and freeways/
expressways. These facility types generally operate at high speeds 
(operating speeds of 45 mph or greater). The language adopted is 
consistent with that used in MAP-21 Section 1405 for these situations.

Sec.  630.1108(b) Exposure Control Measures

    One commenter provided input on this paragraph. Note that FHWA did 
not propose any changes to existing language for this paragraph. The

[[Page 87292]]

commenter suggested updating the requirement from ``should'' to 
``shall.''
    The FHWA did not make any changes to this provision. The FHWA 
retained the ``should'' condition to provide agencies with the 
flexibility to explore exposure and other traffic control measures as 
an alternative suite of options to preserve safety.

Sec.  630.1108(c) Other Traffic Control Measures

    Two commenters provided comments in response to this paragraph. One 
commenter supported the inclusion of AFADs as an exposure control 
device. Another commenter recommended defining ``protection vehicles.''
    The FHWA updated Sec.  630.1108(c)(22) from ``Protection vehicles'' 
to ``Protection or shadow vehicles used to protect workers and 
equipment from impacts by errant vehicles'' to reflect the fact that 
there is inconsistency in how agencies define and use these terms.

Sec.  630.1110 Maintenance of Temporary Traffic Control Devices.--
Footnotes

    Six commenters provided input on this paragraph. Note that FHWA did 
not propose any changes to existing language for this paragraph. All 
six commenters recommended removing references to Illinois and 
Minnesota Quality Standards for Work Zone Traffic Control Devices from 
Sec.  630.1110 footnotes. They opposed the suggestion of guidelines 
from other agencies in the footnotes and mentioned that agencies should 
be able to establish their own maintenance of TTC device standards or 
use ATSSA's ``Quality Guidelines for Temporary Traffic Control Devices 
and Features.''
    The FHWA encourages agencies to establish their TTC device 
standards as applicable to their needs and policies. To this end, FHWA 
removed references to agency-specific quality standards (Illinois DOT 
and Minnesota DOT) and retained one of the commonly used industry 
standards (ATSSA's Quality Guidelines for Temporary Traffic Control 
Devices and Features) as an example.

Sec.  630.1112 Compliance Date

    Nine commenters asked about the compliance timeframe for the 
Subpart K final rule. The commenters asked for the effective date to be 
minimum 12 months from the date of final rule publication.
    In the anticipation that the rule is published in 2024, FHWA 
proposed the effective date of December 31, 2025, which allows at least 
12 months for States to update their policy in compliance with the 
rule. The implementation date for the updated policy will be December 
31, 2026.

Discussion Under 1 CFR Part 51

    The FHWA is incorporating by reference the most current version of 
the MUTCD. At the time of NPRM publication, the rulemaking to adopt the 
11th edition of the MUTCD was still underway. The FHWA published the 
11th edition of MUTCD in December 2023. To this end, FHWA updated the 
references to incorporate the ``Manual on Uniform Traffic Control 
Devices for Streets and Highways,'' 11th edition dated December 2023. 
This document was developed by FHWA to define the standards used by 
road managers nationwide to install and maintain traffic control 
devices on all public streets, highways, bikeways, and private roads 
open to public travel.
    The document that FHWA is incorporating by reference is reasonably 
available to interested parties, primarily State DOTs, local agencies, 
and Tribal governments carrying out Federal-aid highway projects. This 
documentrepresents the most recent refinements that have been formally 
accepted and are currently in use by the transportation industry. The 
document incorporated by reference is available on the docket of this 
rulemaking and at the sources identified in the regulatory text below. 
The specific standards are discussed in greater detail elsewhere in 
this preamble.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures

    The FHWA has considered the impacts of this rule under Executive 
Order (E.O.) 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and 
Review, as amended by E.O. 14094 (``Modernizing Regulatory Review''), 
and DOT's regulatory policies and procedures. The Office of Information 
and Regulatory Affairs within the Office of Management and Budget (OMB) 
has determined that this rulemaking is not a significant regulatory 
action under section 3(f) of E.O. 12866. Accordingly, OMB has not 
reviewed it under that E.O.
    It is anticipated that the final rule would not be economically 
significant for purposes of E.O. 12866. The final rule would not have 
an annual effect on the economy of $200 million or more. The final rule 
would not adversely affect in a material way the economy, any sector of 
the economy, productivity, competition, or jobs. In addition, the 
changes would not interfere with any action taken or planned by another 
Agency and would not materially alter the budgetary impact of any 
entitlements, grants, user fees, or loan programs.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), FHWA has evaluated the effects of this final rule on 
small entities and has determined that it is not anticipated to have a 
significant economic impact on a substantial number of small entities. 
This rule applies to all State and local highway agencies that use 
Federal-aid highway funding in the execution of their highway program. 
However, the regulatory action only directly impacts State requirements 
regarding work zone programmatic reviews, and otherwise would clarify 
the characteristics of a significant project. State governments are not 
included in the definition of small entity set forth in 5 U.S.C. 601. 
Therefore, FHWA certifies that the final rule will not have a 
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This final rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This final rule would not result in the expenditure by State, local, 
and Tribal governments, in the aggregate, or by the private sector, of 
$168 million or more in any one year (2 U.S.C. 1532). In addition, the 
definition of ``Federal Mandate'' in the Unfunded Mandates Reform Act 
excludes financial assistance of the type in which State, local, or 
Tribal governments have authority to adjust their participation in the 
program in accordance with changes made in the program by the Federal 
Government. The Federal-aid highway program permits this type of 
flexibility.

Executive Order 13132 (Federalism Assessment)

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

[[Page 87293]]

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal Agencies must obtain approval from OMB for each 
collection of information they conduct, sponsor, or require through 
regulations. The FHWA has determined that the rule does not contain 
collection of information requirements for the purposes of the PRA.

National Environmental Policy Act

    The FHWA has analyzed this final rule pursuant to the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and 
has determined that it is categorically excluded under 23 CFR 
771.117(c)(20), which applies to the promulgation of rules, 
regulations, and directives. Categorically excluded actions meet the 
criteria for categorical exclusions under the Council on Environmental 
Quality regulations and under 23 CFR 771.117(a) and normally do not 
require any further NEPA approvals by FHWA. The FHWA does not 
anticipate any adverse environmental impacts from this final rule.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this regulatory action in accordance with the 
principles and criteria contained in E.O. 13175, ``Consultation and 
Coordination with Indian Tribal Governments.'' The purpose of the 
regulatory action is to improve motorist, worker, and other vulnerable 
road user safety and mobility on Federal-aid highway projects. The FHWA 
believes that the regulatory action would not have substantial direct 
effects on one or more Indian Tribes, would not impose substantial 
direct compliance costs on Indian Tribal governments, and would not 
preempt Tribal law. Therefore, the funding and consultation 
requirements of E.O. 13175 do not apply and a Tribal summary impact 
statement is not required.

Executive Order 12898 (Environmental Justice)

    The E.O. 12898 requires that each Federal Agency make achieving 
environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities and low-income populations. The FHWA has 
determined that this final rule does not raise any environmental 
justice issues.

Rulemaking Summary, 5 U.S.C. 553(b)(4)

    As required by 5 U.S.C. 553(b)(4), a summary of this rule can be 
found in the Abstract section of the Department's Unified Agenda entry 
for this rulemaking at [https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2125-AG05].

Regulation Identifier Number

    A Regulation Identifier Number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda 
twice each year. The RIN contained in the heading of this document can 
be used to cross reference this action with the Unified Agenda.

List of Subjects in 23 CFR Part 630

    Government contracts, Grant programs--transportation, Highway 
safety, Highways and roads, Incorporation by reference, Reporting and 
recordkeeping requirements, Traffic regulations.

    Issued under authority delegated in 49 CFR 1.81 and 1.85.

Kristin R. White,
Acting Administrator, Federal Highway Administration.

    In consideration of the foregoing, FHWA amends Title 23, Code of 
Federal Regulations, Part 630, as set forth below:

PART 630--PRECONSTRUCTION PROCEDURES

0
1. The authority citation for Part 630 is revised to read as follows:

    Authority:  23 U.S.C. 106, 109, 112, 115, 315, 320, and 402(a); 
Sec. 1110, 1501, and 1503 of Pub. L. 109-59, 119 Stat. 1144; Pub. L. 
105-178, 112 Stat. 193; Pub. L. 104-59, 109 Stat. 582; Pub. L. 97-
424, 96 Stat. 2106; Pub. L. 90-495, 82 Stat. 828; Pub. L. 85-767, 72 
Stat. 896; Pub. L. 84-627, 70 Stat. 380; 23 CFR 1.32 and 49 CFR 1.81 
and 1.85, and Pub. L. 112-141, 126 Stat. 405, sections 1303 and 
1405.

Subpart J--Work Zone Safety and Mobility

0
2. Revise subpart J of part 630 to read as follows:

Subpart J--Work Zone Safety and Mobility

Sec.
630.1002 Purpose.
630.1004 Definitions and explanation of terms.
630.1006 Work zone safety and mobility policy.
630.1008 State-level processes and procedures.
630.1010 Significant projects.
630.1012 Project-level procedures.
630.1014 Implementation.
630.1016 Compliance date.
630.1018 Incorporation by reference.


Sec.  630.1002   Purpose.

    Work zones directly impact the safety and mobility of road users 
and highway workers. These safety and mobility impacts are exacerbated 
by an aging highway infrastructure and growing congestion in many 
locations. Addressing these safety and mobility issues requires 
considerations that start early in project development and continue 
through project completion. Part 6 of the Manual on Uniform Traffic 
Control Devices for Streets and Highways (MUTCD) (incorporated by 
reference, see Sec.  630.1018) sets forth basic principles and 
prescribes standards for the design, application, installation, and 
maintenance of traffic control devices for highway and street 
construction, maintenance operation, and utility work. In addition to 
the provisions in the MUTCD, there are other actions that could be 
taken to further help mitigate the safety and mobility impacts of work 
zones. This subpart establishes requirements and provides guidance for 
systematically addressing the safety and mobility impacts of work 
zones, and for developing strategies to help manage these impacts on 
Federal-aid highway projects.


Sec.  630.1004   Definitions and explanation of terms.

    As used in this subpart:
    Agency means a State or local highway agency or authority that 
receives Federal-aid highway funding.
    Highway workers include, but are not limited to, personnel of the 
contractor, subcontractor, agency, utilities, and law enforcement, 
performing work within the right-of-way of a transportation facility.
    Mobility is the ability to move from place to place and is 
significantly dependent on the availability of transportation 
facilities and on system operating conditions. With specific reference 
to work zones, mobility pertains to moving road users efficiently 
through or around a work zone area with minimum delay compared to 
baseline travel when no work zone is present, while not compromising 
the safety of highway workers or road users. The commonly used 
performance measures for the assessment of mobility include delay, 
speed, travel time, and queue lengths.
    Safety is a representation of the level of exposure to potential 
hazards for users of transportation facilities and

[[Page 87294]]

highway workers. With specific reference to work zones, safety refers 
to minimizing potential hazards to road users in the vicinity of a work 
zone and highway workers at the work zone interface with traffic. The 
commonly used performance measures for highway work zone safety are the 
number of crashes or the consequences of crashes (fatalities and 
injuries) at a given location or along a section of highway during a 
period of time. In terms of highway worker safety performance measures, 
the number of highway worker fatalities and injuries at a given 
location or along a section of highway during a period of time are 
commonly used measures.
    State refers to a State department of transportation.
    Transportation management plan (TMP) consists of strategies to 
manage the work zone impacts of a project. Its scope, content, and 
degree of detail may vary based upon the agency's work zone policy and 
the agency's understanding of the expected work zone impacts of the 
project. Refer to Sec.  630.1010(d) and Sec.  630.1012(b) for more 
information on a TMP and its components.
    Work zone is an area of a highway with construction, maintenance, 
or utility work activities. A work zone is typically marked by one or 
more of the following: signs, channelizing devices, barriers, pavement 
markings, or work vehicles. It extends from the first warning sign or 
high intensity rotating, flashing, oscillating, or strobe lights on a 
vehicle to the END ROAD WORK sign or the last temporary traffic control 
(TTC) device. See MUTCD, Part 6, ``Temporary Traffic Control'' 
(incorporated elsewhere in this subpart).
    Work zone crash is a crash that occurs in or related to a 
construction, maintenance, or utility work zone, whether or not workers 
were actually present at the time of the crash. ``Work zone-related'' 
crashes may also include crashes involving motor vehicles slowed or 
stopped because of the work zone, even if the first harmful event 
occurred before the first warning sign. See ``Model Minimum Uniform 
Crash Criteria Guideline'' (MMUCC), 5thEd. (Electronic), 2017, produced 
by NHTSA. Available at the following website: 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; type of temporary 
traffic control; distance between workers and traffic; availability of 
escape paths for workers; time of day/night; and complexity and 
duration of the project. These impacts may extend beyond the physical 
location of the work zone itself, including upstream or downstream of 
the work zone location, other highway corridors, other modes of 
transportation, and/or the regional transportation network.
    Work zone programmatic review is a data-driven, systematic, and 
holistic analysis that uses quantitative and qualitative data from 
different sources to assess the safety and mobility performance of work 
zones under a State's jurisdiction in order to identify improvements to 
that agency's work zone processes and procedures.


Sec.  630.1006   Work zone safety and mobility policy.

    (a) Each State shall implement a policy for the systematic 
consideration and management of work zone impacts on all Federal-aid 
highway projects. This policy shall address work zone impacts 
throughout the various stages of the project development and 
implementation process. This policy may take the form of processes, 
procedures, or guidance, and may vary based on the characteristics and 
expected work zone impacts of individual projects or classes of 
projects.
    (b) At a minimum, the policy shall identify safety and mobility 
performance measures that will be used to manage work zone performance. 
Examples of such performance measures include number of fatal and 
injury crashes occurring in a work zone, percent of projects that 
exceed a preestablished crash rate in the work zone, number of highway 
worker fatalities and injuries experienced, highway worker fatality and 
injury rate per hours worked, percent of projects that experience 
queues above a predefined threshold, and percent of time when speeds in 
a work zone drop below a predefined threshold.
    (c) The States should institute this policy using a multi-
disciplinary team and in cooperation with the Federal Highway 
Administration (FHWA). The States are encouraged to implement this 
policy for non-Federal-aid projects as well.


Sec.  630.1008   State-level processes and procedures.

    (a) General. This section consists of State-level processes and 
procedures for States to implement and sustain their respective work 
zone safety and mobility policies. State-level processes and 
procedures, data and information resources, training, and periodic 
evaluation enable a systematic approach for addressing and managing the 
safety and mobility impacts of work zones.
    (b) Work zone assessment and management procedures. States shall 
develop and implement systematic procedures to assess likely work zone 
impacts to all highway workers and anticipated road users in project 
development and to manage safety and mobility impacts occurring during 
project implementation. The scope of these procedures shall be based on 
the project characteristics.
    (c) Work zone data. States shall use field observations, available 
work zone crash data, available safety surrogate data, available 
operational information, and available exposure data to monitor and 
manage work zone impacts for specific projects during implementation 
and to perform its work zone programmatic reviews. Examples of crash 
data include fatalities, injuries, and crashes; examples of safety 
surrogate data include speed differentials, hard braking, and other 
data from connected and autonomous vehicles; examples of available 
operational information include speeds, travel times, queue length, and 
duration; and examples of available exposure data include number of 
projects, number and length of lane closures, and vehicle-miles 
traveled through work zones.
    (d) Training. States shall require that personnel involved in the 
development, design, implementation, operation, inspection, and 
enforcement of work-zone-related transportation management and traffic 
control be trained, appropriate to the job decisions each individual is 
required to make. States shall require periodic training updates that 
reflect changing industry practices and State processes and procedures.
    (e) Work zone programmatic review. In order to assess the 
effectiveness of work zone safety and mobility processes and 
procedures, States shall perform a work zone programmatic review every 
5 years and share that review with FHWA by the end of the 5-year review 
period.
    (1) The work zone programmatic review shall include a data-driven 
assessment of the safety and mobility performance of the State's work 
zones. At a minimum, this review shall include a representative sample 
of the State's significant work zones over the 5-year period being 
reviewed. The approach used for selecting the representative projects 
shall be documented and should be based on factors such as land use 
(urban and rural locations), roadway

[[Page 87295]]

type, type of work zone, and extent of the work zone impacts.
    (2) Each programmatic review shall include an assessment of the 
work zone safety and mobility performance occurring since the last 
review was performed, systematic identification and assessment of the 
States' work zone management processes and procedures to be improved, 
action items to be taken to achieve improvement, State divisions or 
offices responsible for implementing the actions, and estimated 
timeline for implementation.
    (3) States shall use available crash data, available safety 
surrogate data, available operational data, and the performance 
measures specified in their work zone policy to conduct the assessment. 
Section 630.1008(c) provides example performance measures for each data 
source listed in this section. To ensure assessment of the safety and 
mobility performance of their work zones on a continuous basis, States 
shall monitor performance annually.
    (4) The work zone programmatic review shall include examination of 
efforts across State divisions or offices affecting work zone safety 
and mobility management, including but not limited to: project 
planning, project design, project implementation, maintenance 
activities, transportation operations and management, permitting (e.g., 
utilities, oversize/overweight, lane closures, sidewalk closures), 
training, and public information and outreach.
    (5) Appropriate personnel who represent the project development and 
implementation stages and the different offices within the State and 
FHWA should participate in this review. Other non-State stakeholders 
may also be included in this review, as appropriate.


Sec.  630.1010   Significant projects.

    (a) A significant project is one that, alone or in combination with 
other concurrent projects nearby, is anticipated to cause sustained 
work zone impacts (as defined in Sec.  630.1004) that are greater than 
what is considered tolerable based on State policy and engineering 
judgment.
    (b) The applicability of the provisions in Sec. Sec.  
630.1012(b)(2) and 630.1012(b)(3) is dependent upon whether a project 
is determined to be significant. The State shall identify upcoming 
projects that are expected to be significant. This identification of 
significant projects should be done as early as possible in the project 
delivery and development process, and in cooperation with FHWA. The 
State's work zone policy provisions, the project's characteristics, and 
the magnitude and extent of the anticipated work zone impacts should be 
considered when determining if a project is significant or not.
    (c) All Interstate system projects within the boundaries of a 
designated Transportation Management Area that require intermittent or 
continuous lane closures for 3 or more consecutive days shall be 
considered as significant projects.
    (d) For an Interstate system project or categories of Interstate 
system projects that are classified as significant through the 
application of the provisions in paragraph (c) of this section but in 
the judgment of the State do not cause sustained work zone impacts, the 
State may request from FHWA an exception to Sec. Sec.  630.1012(b)(2) 
and 630.1012(b)(3). The FHWA may grant exceptions to these provisions 
based on the State's ability to show that the specific Interstate 
system project or categories of Interstate system projects do not have 
sustained work zone impacts.
    (e) Non-interstate system projects with less than 3 consecutive 
days of intermittent or continuous lane closures do not require the 
transportation operations (TO) or public information and outreach (PIO) 
components of a TMP (as described in Sec.  630.1012(b)).


Sec.  630.1012   Project-level procedures.

    (a) Scope. This section provides guidance and establishes 
procedures for States to manage the work zone impacts of individual 
projects.
    (b) Transportation Management Plan. For significant projects (as 
described in Sec.  630.1010), the State shall develop a TMP that 
consists of a TTC plan and addresses both TO and PIO components. For 
individual projects or classes of projects that the State determines to 
have less than significant work zone impacts, the TMP may consist only 
of a TTC plan. States are encouraged to consider TO and PIO issues for 
all projects.
    (1) A TTC plan describes TTC measures to be used for facilitating 
road users through a work zone or an incident area. The TTC plan shall 
be consistent with the provisions under Part 6 of the MUTCD 
(incorporated by reference, see Sec.  630.1018). In developing and 
implementing the TTC plan, pre-existing roadside safety hardware shall 
be maintained at an equivalent or better level than existed prior to 
project implementation. The scope of the TTC plan is determined by the 
project characteristics and the traffic safety and control requirements 
identified by the State for that project. The TTC plan shall either be 
a reference to specific TTC elements in the MUTCD, approved standard 
TTC plans, State transportation department TTC manual, or be designed 
specifically for the project.
    (2) The TO component of the TMP shall include the identification of 
strategies that the State will use to mitigate impacts of the work zone 
on the operation and management of the transportation system within the 
work zone impact area. Typical TO strategies may include, but are not 
limited to, demand management, corridor/network management, safety 
management and enforcement, and work zone traffic management. The scope 
of the TO component should be determined by the project characteristics 
and the transportation operations and safety strategies identified by 
the State.
    (3) The PIO component of the TMP shall include communications 
strategies that seek to inform affected road users, the general public, 
area residences and businesses, and appropriate public entities about 
the project, the expected work zone impacts, and the changing 
conditions on the project. This may include traveler information 
strategies. The scope of the PIO component should be determined by the 
project characteristics and the public information and outreach 
strategies identified by the State. Public information and outreach 
should be provided through methods best suited for the project, and may 
include, but not be limited to, information on the project 
characteristics, expected impacts, closure details, and commuter 
alternatives.
    (4) States should develop and implement the TMP in sustained 
consultation with stakeholders (e.g., other transportation agencies, 
railroad agencies/operators, transit providers, freight movers, utility 
suppliers, police, fire, emergency medical services, schools, business 
communities, and regional transportation management centers).
    (c) Inclusion of TMP in Plans, Specification, and Estimates. The 
Plans, Specifications, and Estimates (PS&E) shall include either a TMP 
or provisions for contractors to develop a TMP at the most appropriate 
project phase as applicable to the State's chosen contracting 
methodology for the project. A contractor-developed TMP shall be 
subject to the approval of the State and shall not be implemented 
before it is approved by the State.
    (d) Inclusion of Pay Item Provisions in Plans, Specification, and 
Estimates. The PS&Es shall include appropriate pay item provisions for 
implementing the TMP, either through method- or performance-based 
specifications.
    (e) Responsible persons. The State and the contractor shall each 
designate a

[[Page 87296]]

trained person, as specified in Sec.  630.1008(d), at the project level 
who has the primary responsibility and sufficient authority for 
implementing the TMP and other safety and mobility aspects of the 
project.


Sec.  630.1014   Implementation.

    Each State shall work in cooperation with FHWA in the 
implementation of its policies and procedures to improve work zone 
safety and mobility. At a minimum, this shall involve an FHWA review of 
conformance of the State's policies and procedures with this regulation 
and reassessment of the State's implementation of its procedures at 
appropriate intervals. Each State is encouraged to address 
implementation of this regulation in its stewardship agreement with 
FHWA.


Sec.  630.1016   Compliance date.

    States shall comply with all the provisions of this rule no later 
than December 31, 2026. The next work zone programmatic review will be 
due December 31, 2030. For projects that are in the later stages of 
development at or about the compliance date, and if it is determined 
that the delivery of those projects would be significantly impacted as 
a result of this rule's provisions, States may request variances for 
those projects from FHWA on a project-by-project basis.


Sec.  630.1018   Incorporation by reference.

    Certain material is incorporated by reference into this subpart 
with the approval of the Director of the Federal Register under 5 
U.S.C. 552(a) and 1 CFR part 51. All approved incorporation by 
reference (IBR) material is available for inspection at FHWA and at the 
National Archives and Records Administration (NARA). Contact FHWA at: 
Federal Highway Administration, Office of Transportation Operations, 
1200 New Jersey Avenue SE, Washington, DC 20590; phone: (202) 366-8043; 
website: 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 or email <a href="/cdn-cgi/l/email-protection#86e0f4a8efe8f5f6e3e5f2efe9e8c6e8e7f4e7a8e1e9f0"><span class="__cf_email__" data-cfemail="ddbbaff3b4b3aeadb8bea9b4b2b39db3bcafbcf3bab2ab">[email protected]</span></a>. The 
material may be obtained from the following sources:
    (a) FHWA, Federal Highway Administration, 1200 New Jersey Avenue 
SE, Washington, DC 20590; phone: (202) 366-1993; website: 
mutcd.fhwa.dot.gov.
    (1) Manual on Uniform Traffic Control Devices for Streets and 
Highways (MUTCD), 11th Edition, FHWA, December 2023; approved for 
Sec. Sec.  630.1002; 630.1012.
    (2) [Reserved]
    (b) [Reserved]

Subpart K--Temporary Traffic Control Devices

0
3. Revise subpart K of part 630 to read as follows:
Subpart K--Temporary Traffic Control Devices
Sec.
630.1102 Purpose.
630.1104 Definitions and explanation of terms.
630.1106 Policy and procedures for work zone safety management.
630.1108 Work zone safety management measures and strategies.
630.1110 Maintenance of temporary traffic control devices.
630.1112 Compliance date.


Sec.  630.1102   Purpose.

    To decrease the likelihood of highway work zone fatalities and 
injuries to workers and road users by establishing minimum requirements 
and providing guidance for the use of positive protection devices 
between the work space and motorized traffic; installation and 
maintenance of temporary traffic control devices; use of uniformed law 
enforcement officers during construction, utility, and maintenance 
operations; and by requiring contract pay items to ensure the 
availability of funds for these provisions. This subpart is applicable 
to all Federal-aid highway projects, and its application is encouraged 
on other highway projects as well.


Sec.  630.1104   Definitions and explanation of terms.

    For the purposes of this subpart, the following definitions apply:
    Agency means a State or local highway agency or authority that 
receives Federal-aid highway funding.
    Exposure control measures means traffic management strategies to 
avoid work zone crashes involving workers and motorized traffic by 
eliminating or reducing traffic through the work zone, or diverting 
traffic away from the work space.
    Federal-aid highway project means highway construction, 
maintenance, and utility projects funded in whole or in part with 
Federal-aid funds.
    Motorized traffic means the motorized traveling public. This term 
does not include motorized construction or maintenance vehicles and 
equipment within the work space.
    Other traffic control measures means all strategies and temporary 
traffic controls other than Positive Protection Devices and Exposure 
Control Measures, but including uniformed law enforcement officers, 
used to reduce the risk of work zone crashes involving motorized 
traffic.
    Engineering study means the analysis and evaluation of available 
pertinent information, and the application of appropriate principles, 
provisions, and practices for the purpose of determining the choice and 
application of work zone positive protection devices, exposure control 
measures, or other traffic control measures to safely manage work 
zones.
    Positive protection devices means devices that contain or redirect 
vehicles and meet applicable industry crashworthiness evaluation 
criteria. Industry crashworthiness evaluation criteria are not 
regulatory, and use of them is voluntary and not required by law.


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

    (a) Each agency's policy and processes, procedures, or guidance for 
the systematic consideration and management of work zone impacts, to be 
established in accordance with Sec.  630.1006, shall include the 
consideration and management of road user and worker safety on Federal-
aid highway projects. These processes, procedures, or guidance, to be 
developed in cooperation with the Federal Highway Administration 
(FHWA), shall address the use of Positive Protection Devices to prevent 
the intrusion of motorized traffic into the work space and other 
potentially hazardous areas in the work zone; Exposure Control Measures 
to avoid or minimize worker exposure to motorized traffic and road user 
exposure to work activities; Other Traffic Control Measures including 
uniformed law enforcement officers to minimize work zone crashes; and 
the safe entry/exit of work vehicles onto/from the travel lanes. Each 
of these strategies should be used to the extent that they are 
possible, practical, and adequate to manage work zone exposure and 
reduce the risks of crashes resulting in fatalities or injuries to 
workers and road users.
    (b) Agency processes, procedures, or guidance should be based on 
consideration of standards or guidance contained in the Manual on 
Uniform Traffic Control Devices for Streets and Highways (MUTCD), as 
well as project characteristics and factors. The strategies and devices 
to be used may be determined by a project-specific engineering study or 
determined from agency guidelines developed from an engineering study 
that indicate when positive protection devices or other strategies and 
approaches are to be used based on project and highway characteristics 
and factors. An engineer,

[[Page 87297]]

or an individual working under the supervision of an engineer shall 
perform an engineering study through the application of procedures and 
criteria established by the engineer. The person conducting the 
engineering study shall document such study. Benefit-cost analyses, 
decision matrices, decision tree analysis, or other appropriate 
engineering decision-making tools may be used in the engineering study. 
The types of measures and strategies to be used are not mutually 
exclusive, and should be considered in combination as appropriate based 
on characteristics and factors such as those listed below:
    (1) Project scope and duration;
    (2) Anticipated operating conditions including traffic volume, 
vehicle mix, and speeds through the work zone;
    (3) Anticipated traffic safety impacts;
    (4) Type of work (as related to worker exposure and crash risks);
    (5) Distance between traffic and workers, and extent of worker 
exposure;
    (6) Escape paths available for workers to avoid a vehicle intrusion 
into the work space;
    (7) Time of day (e.g., night work);
    (8) Work area restrictions (including impact on worker exposure);
    (9) Consequences from/to road users resulting from roadway 
departure;
    (10) Potential hazard to workers and road users presented by device 
itself and during device placement and removal;
    (11) Geometrics that may increase crash risks (e.g., poor sight 
distance, sharp curves);
    (12) Access to/from work space;
    (13) Roadway classification; and
    (14) Impacts on project cost and duration.
    (c) Each agency, in partnership with FHWA, shall develop a policy 
addressing the use of uniformed law enforcement on Federal-aid highway 
projects. The policy may consist of processes, procedures, and/or 
guidance. The processes, procedures, or guidance should address the 
following:
    (1) Basic interagency agreements between the highway agency and 
appropriate law enforcement agencies to address work zone enforcement 
needs;
    (2) Interaction between highway and law-enforcement agencies during 
project planning and development;
    (3) Conditions where law enforcement involvement in work zone 
traffic control may be needed or beneficial, and criteria to determine 
the project-specific need for law enforcement;
    (4) General nature of law enforcement services to be provided, and 
procedures to determine project-specific services;
    (5) Appropriate work zone safety and mobility training for the 
officers, consistent with the training requirements in Sec.  
630.1008(d);
    (6) Procedures for interagency and project-level communications 
between highway agency and law enforcement personnel; and
    (7) Reimbursement agreements for law enforcement service.


Sec.  630.1108   Work zone safety management measures and strategies.

    (a) Positive protection devices. At a minimum, agencies shall use 
positive protection devices in work zones with high anticipated 
operating speeds that provide workers no means of escape from motorized 
traffic intruding into the workspace unless an engineering study 
determines otherwise. Positive protection devices shall be considered 
in other situations that place workers at increased risk from motorized 
traffic, and where positive protection devices offer the highest 
potential for increased safety for workers and road users such as:
    (1) Work zones that provide workers no means of escape from 
motorized traffic (e.g., tunnels, bridges, etc.);
    (2) Long-duration work zones (e.g., two weeks or more) resulting in 
substantial worker exposure to motorized traffic;
    (3) Projects with high anticipated operating speeds (e.g., 45 mph 
or greater), especially when combined with high traffic volumes;
    (4) Work operations that place workers close (e.g., within one lane 
width) to travel lanes open to traffic; and
    (5) Roadside hazards, such as drop-offs or unfinished bridge decks, 
that will remain in place overnight or longer.
    (b) Exposure control measures. Exposure control measures should be 
considered where appropriate to avoid or minimize worker exposure to 
motorized traffic and exposure of road users to work activities, while 
also providing adequate consideration to the potential impacts on 
mobility. A wide range of measures may be appropriate for use on 
individual projects, such as:
    (1) Full road closures;
    (2) Ramp closures;
    (3) Median crossovers;
    (4) Full or partial detours or diversions;
    (5) Protection of work zone setup and removal operations using 
rolling road blocks;
    (6) Performing work at night or during off-peak periods when 
traffic volumes are lower; and
    (7) Accelerated construction techniques.
    (c) Other traffic control measures. Other traffic control measures 
should be given appropriate consideration for use in work zones to 
reduce work zone crashes and risks and consequences of motorized 
traffic intrusion into the work space. These measures, which are not 
mutually exclusive and should be considered in combination as 
appropriate, include a wide range of other traffic control measures 
such as:
    (1) Effective, credible signing;
    (2) Changeable message signs;
    (3) Arrow panels;
    (4) Warning flags and lights on signs;
    (5) Longitudinal and lateral buffer space;
    (6) Trained flaggers and spotters;
    (7) Enhanced flagger station setups or use of automated flagger 
assistance devices (AFADs);
    (8) Intrusion alarms;
    (9) Rumble strips;
    (10) Pace or pilot vehicle;
    (11) High-quality work zone pavement markings and removal of 
misleading markings;
    (12) Channelizing device spacing reduction;
    (13) Longitudinal channelizing barricades;
    (14) Work zone speed management (including changes to the 
regulatory speed or variable speed limits);
    (15) Law enforcement;
    (16) Speed Safety Cameras (where permitted by State/local laws):
    (17) Drone radar;
    (18) Worker and work vehicle/equipment visibility;
    (19) Worker training;
    (20) Public information and traveler information;
    (21) Temporary traffic signals.
    (22) Protection or shadow vehicles used to protect workers and 
equipment from impacts by errant vehicles; and
    (23) Intelligent Transportation Systems (ITS) and other advanced 
technology solutions and strategies.
    (d) Uniformed law enforcement officers. (1) A number of conditions 
may indicate the need for or benefit of uniformed law enforcement in 
work zones. The presence of a uniformed law enforcement officer and 
marked law enforcement vehicle in view of motorized traffic on a 
highway project can affect driver behavior, helping to maintain 
appropriate speeds and improve driver alertness through the work zone. 
However, such law enforcement presence is not a substitute for the 
temporary traffic control devices required by Part 6 of the MUTCD. In 
general, the need for law enforcement is greatest on projects with high 
traffic speeds and volumes, and where the work zone is expected to 
result in substantial disruption to or changes in normal traffic flow 
patterns. Specific

[[Page 87298]]

project conditions should be examined to determine the need for or 
potential benefit of law enforcement, such as the following:
    (i) Frequent worker presence adjacent to high-speed traffic without 
positive protection devices;
    (ii) Traffic control setup or removal that presents significant 
risks to workers and road users;
    (iii) Complex or very short-term changes in traffic patterns with 
significant potential for road user confusion or worker risk from 
traffic exposure;
    (iv) Night work operations that create substantial traffic safety 
risks for workers and road users;
    (v) Existing traffic conditions and crash histories that indicate a 
potential for substantial safety and congestion impacts related to the 
work zone activity, and that may be mitigated by improved driver 
behavior and awareness of the work zone;
    (vi) Work zone operations that require brief stoppage of all 
traffic in one or both directions;
    (vii) High-speed roadways where unexpected or sudden traffic 
queuing is anticipated, especially if the queue forms a considerable 
distance in advance of the work zone or immediately adjacent to the 
work space; and
    (viii) Other work site conditions where traffic presents a high 
risk for workers and road users, such that the risk may be reduced by 
improving road user behavior and awareness.
    (2) Costs associated with the provision of uniformed law 
enforcement to help protect workers and road users, and to maintain 
safe and efficient travel through highway work zones, are eligible for 
Federal-aid participation. Federal-aid eligibility excludes law 
enforcement activities that would normally be expected in and around 
highway problem areas requiring routine or ongoing law enforcement 
traffic control and enforcement activities. Payment for the services of 
uniformed law enforcement in work zones may be included in the 
construction contract, or be provided by direct reimbursement from the 
highway agency to the law enforcement agency. When payment is included 
through the construction contract, the contractor will be responsible 
for reimbursing the law enforcement agency, and in turn will recover 
those costs through contract pay items. Direct interagency 
reimbursement may be made on a project-specific basis, or on a 
programwide basis that considers the overall level of services to be 
provided by the law enforcement agency. Contract pay items for law 
enforcement service may be either unit price or lump sum items. Unit 
price items should be utilized when the highway agency can estimate and 
control the quantity of law enforcement services required on the 
project. The use of lump sum payment should be limited to situations 
where the quantity of services is directly affected by the contractor's 
choice of project scheduling and chosen manner of staging and 
performing the work. Innovative payment items may also be considered 
when they offer an advantage to both the highway agency and the 
contractor. When reimbursement to the law enforcement agency is made by 
interagency transfer of funds, the highway agency should establish a 
program-level or project-level budget that is adequate to meet 
anticipated program or project needs, and include provisions to address 
unplanned needs and other contingencies.
    (e) Work vehicles and equipment. In addition to addressing risks to 
workers and road users from motorized traffic, the agency processes, 
procedures, and guidance established in accordance with Sec.  630.1006 
should also address safe means for work vehicles and equipment to enter 
and exit traffic lanes and for delivery of construction materials to 
the workspace, based on individual project characteristics and factors.
    (f) Payment for traffic control. Consistent with the requirements 
of Sec.  630.1012, Project-level Procedures, project plans, 
specifications and estimates (PS&Es) shall include appropriate pay item 
provisions for implementing the project Transportation Management Plan 
(TMP), which includes a Temporary Traffic Control (TTC) plan, either 
through method- or performance-based specifications. Pay item 
provisions include, but are not limited to, the following:
    (1) Payment for work zone traffic control features and operations 
shall not be incidental to the contract, or included in payment for 
other items of work not related to traffic control and safety;
    (2) As a minimum, separate pay items shall be provided for major 
categories of traffic control devices, safety features, and work zone 
safety activities, including but not limited to positive protection 
devices, and uniformed law enforcement activities when funded through 
the project;
    (3) For method-based specifications, the specifications and other 
PS&E documents should provide sufficient details such that the quantity 
and types of devices and the overall effort required to implement and 
maintain the TMP can be determined;
    (4) For method-based specifications, unit price pay items, lump sum 
pay items, or a combination thereof may be used;
    (5) Lump sum payment should be limited to items for which an 
estimate of the actual quantity required is provided in the PS&E or for 
items where the actual quantity required is dependent upon the 
contractor's choice of work scheduling and methodology;
    (6) For Lump Sum items, a contingency provision should be included 
such that additional payment is provided if the quantity or nature of 
the required work changes, either an increase or decrease, due to 
circumstances beyond the control of the contractor;
    (7) Unit price payment should be provided for those items over 
which the contractor has little or no control over the quantity, and no 
firm estimate of quantities is provided in the PS&Es, but over which 
the highway agency has control of the actual quantity to be required 
during the project;
    (8) Specifications should clearly indicate how placement, movement/
relocation, and maintenance of traffic control devices and safety 
features will be compensated; and
    (9) The specifications should include provisions to require and 
enforce contractor compliance with the contract provisions relative to 
implementation and maintenance of the project TMP and related traffic 
control items. Enforcement provisions may include remedies such as 
liquidated damages, work suspensions, or withholding payment for 
noncompliance.


Sec.  630.1110   Maintenance of temporary traffic control devices.

    To provide for the continued effectiveness of temporary traffic 
control devices, each agency shall develop and implement quality 
guidelines to help maintain the quality and adequacy of the temporary 
traffic control devices for the duration of the project. Agencies may 
choose to adopt existing quality guidelines such as those developed by 
the American Traffic Safety Services Association (ATSSA) or other state 
highway agencies.\1\ A level of inspection necessary to provide ongoing 
compliance with the quality guidelines shall be provided.

    \1\ ATSSA's Quality Guidelines for Temporary Traffic Control 
Devices and Features uses photos and written descriptions to help 
judge when a traffic control device has outlived its usefulness. 
These guidelines are available for purchase from ATSSA through the 
following URL:

[[Page 87299]]

https://www.atssa.com/resource/quality-guidelines/. Similar 
guidelines are available from various State highway agencies.


Sec.  630.1102   Compliance Date.

    States shall update their policy no later than December 31, 2025, 
and implement the policy no later than December 31, 2026. For projects 
that are in the later stages of development at or about the compliance 
date, and if it is determined that the delivery of those projects would 
be significantly impacted as a result of this rule's provisions, States 
may request variances for those projects from FHWA on a project-by-
project basis.

[FR Doc. 2024-25065 Filed 10-31-24; 8:45 am]
BILLING CODE 4910-22-P


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