TRN-37-07-00004-P Enhancing Safety in Highway Construction and Maintenance Work Zones
9/12/07 N.Y. St. Reg. TRN-37-07-00004-P
NEW YORK STATE REGISTER
VOLUME XXIX, ISSUE 37
September 12, 2007
RULE MAKING ACTIVITIES
DEPARTMENT OF TRANSPORTATION
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. TRN-37-07-00004-P
Enhancing Safety in Highway Construction and Maintenance Work Zones
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed action:
Repeal of Part 164 and addition of new Part 164 to Title 17 NYCRR.
Statutory authority:
Vehicle and Traffic Law, section 224-a; and Transportation Law, section 22
Subject:
Enhancing safety in highway construction and maintenance work zones.
Purpose:
To satisfy requirements of the Work Zone Safety Act of 2005, L. 2005, ch. 223. Proposed regulations provide for measures to be taken in “major active work zones” in New York State.
Text of proposed rule:
Part 164 of Title 17 of the Official Compilation of Codes, Rules and Regulations of the State of New York is hereby repealed and a new Part 164 is adopted to read as follows:
PART 164
TRAFFIC REGULATIONS IN HIGHWAY WORK AREA
(Statutory authority: Vehicle and Traffic Law, §§ 100, 224-a, 1620, 1627, Transportation Law § 22)
§ 164.1 Purpose.
This Part is intended to improve the safety of workers, pedestrians and motorists within a highway work area by allowing for speed limit reductions, police presence, radar speed display signs and safety education and review.
§ 164.2 Definitions.
(a) Commissioner shall mean the commissioner of transportation.
(b) Department shall mean the department of transportation.
(c) Highway work area shall mean that portion of the highway being constructed, reconstructed, maintained or improved by the department, its employees, agents, or as contracted to contractors. It is that part of a highway being used or occupied for the conduct of highway work, within which workers, vehicles, equipment, materials, supplies, excavations or other obstructions are present.
(d) Major active work zone shall mean a divided controlled access highway having grade separated interchange connections with intersecting roads and having a normal speed limit of 55 miles per hour or greater where workers are engaged in a stationary operation that exceeds four hours in duration and that are not predominantly separated from traffic by a temporary concrete or other rigid barrier system.
(e) Normal speed limit shall mean that speed limit had there been no highway work performed.
(f) Police presence shall mean police personnel assigned to a major active work zone or automated speed photo-enforcement systems and other similar devices.
(g) Radar speed display sign shall mean any device capable of measuring vehicle speeds and that clearly displays such speed to approaching vehicles.
(h) Stationary operation shall mean work in a specific location that does not move intermittently or continuously.
(i) Temporary speed limit shall mean the speed limit posted in the highway work area which reduces the normal speed limit on that highway; provided, however, that such a temporary speed limit shall not be less than 25 miles per hour.
§ 164.3 Speeding prohibition.
When the operation of a vehicle involves the traversing of a highway work area, such operation in excess of the posted temporary speed limit shall be unlawful.
§ 164.4 Temporary speed limits.
The regional directors of transportation for the department are hereby authorized to establish temporary speed limits in highway work areas.
§ 164.5 Police Presence.
To the extent practicable, there shall be a police presence at major active work zones. Whether or not such a presence is practicable shall include, but not be limited to, such considerations as available resources.
§ 164.6 Radar speed display signs.
Radar speed display signs shall be employed, where practicable, at major active work zones and shall be used in conjunction with or in close visual proximity to a regulatory speed limit sign. Whether or not such use is practicable shall include, but not be limited to, such considerations as available resources.
§ 164.7 Work zone safety review.
The commissioner shall institute a quality control/quality assurance program for reviewing work zone safety and maintenance and protection of traffic design for all work zones under the jurisdiction of the Department. This program shall include, but not be limited to a system for inspecting work zone maintenance and protection of traffic plans, field implementation of such plans, worker safety training, contractor outreach and enforcement efforts.
§ 164.8 Highway construction and maintenance safety education program.
The commissioner shall establish a highway construction and maintenance safety education program. This shall include a comprehensive set of public education and awareness programs aimed at improving work zone safety. These programs may include public service announcements, media events, websites or mailings. Funding allocated from surcharges imposed on work zone speed limit violations should be used to expand these programs.
The department shall maintain a list and description of such programs and shall report on these biennially to the governor, temporary president of the senate and the speaker of the assembly.
Text of proposed rule and any required statements and analyses may be obtained from:
Robert Limoges, Department of Transportation, 50 Wolf Rd., Mail POD 42, Albany, NY 12232, (518) 457-3537, e-mail: rlimoges@dot.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory Authority: The statutory authority for the New York State Department of Transportation (“NYSDOT” or the “Department”) to promulgate these rules is found in the Transportation Law (“TL”) and the Vehicle and Traffic Law (“VTL”).
TL § 14 sets forth the Department's general powers and specifically § 14(18) authorizes the Department to make rules and regulations to discharge the Department's powers and duties; § 14(12) authorizes the Department to exercise all powers relating to traffic regulation and control as set forth in the VTL or in other laws.
Chapter 223 of the Laws of New York of 2005, enacted the “Work Zone Safety Act of 2005” and amended the following sections of Transportation Law and the Vehicle and Traffic Law:
a) TL § 22 requires the Department to promulgate rules and regulations for the increased safety of work zones. These rules must provide for a police presence at all major active work zones, the use of radar speed display signs at all major active work zones, and a system for reviewing work zone safety and design for all work zones under the jurisdiction of the Department.
b) VTL § 224-a requires the Department to promulgate rules and regulations to establish and implement a highway construction and maintenance safety education program.
2. Legislative Objectives: The proposed adoption of a new Part 164 of 17 NYCRR to the regulations follows this legislative intent by implementing the requirements of the “Work Zone Safety Act of 2005” as enacted by the New York State Legislature. Specifically, the new regulations will: 1) require, where practicable, a police presence in major active work zones; 2) require the use of radar speed display signs in major active work zones; 3) establish a program for review of work zone safety for all work zones under the Department's jurisdiction; 4) establish a safety education program.
The text of the “Work Zone Safety Act of 2005” and the Memorandum in Support are attached.
3. Needs and Benefits: In 2005 the NYS Legislature enacted the “Work Zone Safety Act of 2005”. The purpose of this law is to reduce motor vehicle accidents in highway construction and maintenance work zones and thus improve safety for workers and motorists alike.
The proposed regulations are required by the Work Zone Safety Act of 2005 and consist of four main components:
a) The Commissioner of Transportation, in cooperation with the Superintendent of State Police, the Commissioner of Motor Vehicles, the Chairman of the New York State Thruway Authority, local law enforcement agencies and representatives for contractors and laborers, must develop and implement rules and regulations for the increased safety of work zones. 1) These rules must provide for a police presence in “major active work zones”; 2) the use of radar speed display signs at “major active work zones”; and 3) a system for the review of work zone safety and design for all work zones under the jurisdiction of the DOT; and 4) establishment of the highway construction and maintenance safety education program. The Commissioner of Transportation (in consultation with DMV) must promulgate rules and regulations regarding the establishment and implementation of a highway and maintenance safety education program;
These provisions explicitly require that DOT promulgate rules and regulations. To fulfill the Department's obligation in this regard, the proposed additions to 17 NYCRR will address: a) the establishment of a highway construction and maintenance safety education program; and b) regulations for the increased safety of work zones.
The proposed regulations define the components of the “highway construction and maintenance safety education program.” This program, to be established by the Department of Transportation, will develop media elements, and innovative strategies and education materials for motorists and workers thereby raising awareness of safe driving practices in work zones. Another program goal will be to educate the public on the increased penalties for speeding through work zones.
The proposed regulations also define measures to improve safety for workers and motorists. These measures include a police presence and the use of radar speed display signs for “major active work zones”. The purpose is to reduce traffic speeds, and ultimately motor vehicle crashes in work zones. Criteria for defining “major active work zone” are included as well as a definition of “police presence”. Lastly, DOT will be required to review the safety and maintenance and protection of traffic designs of work zones under its jurisdiction.
The proposed regulation, by its very nature, may require the hiring of additional police personnel, as well as additional administrative positions to coordinate the newly required programs. Depending upon available resources, the regulation will have either a positive impact or no impact on jobs and employment opportunities.
4. Costs: The compliance costs are dependent upon the level of available resources.
The proposed regulations require that, to the extent practicable, dedicated police services will be provided in major active work zones. In 2006, the New York State Department of Transportation and Thruway Authority had approximately 120 capital projects (contractor) and dozens of daily maintenance operations (state forces) that met the definition of “major active work zone.” The Department estimates the cost of one trooper, including vehicles, to be $120,000 per year. The total is dependent upon available resources.
In addition to police personnel, this regulation will require additional equipment acquisitions to deploy radar speed display signs in “major active work zones”. Some of these units will be included in contracts for construction projects, but both agencies will need to purchase additional units for use in maintenance (state forces) operations. The average cost of a radar speed display sign is $10,000. This is expected to be a one time expense, with replacement costs of 10% (or $50,000) per year thereafter.
Administrative costs for this program are estimated to be mainly personnel time. Staff from NYSDOT, NYSTA and State Police will be required to assume new duties to properly coordinate police enforcement, deployment of radar speed display signs and a work zone quality assurance program. For the Department of Transportation, this will require a minimum of 1 full time equivalent (FTE) per DOT Region plus DOT Main Office support staff. A total of 12 FTEs (11 DOT regions plus Main Office) is required in addition to 4 FTEs for the Thruway Authority and 10 FTEs for the State Police. At an estimated cost of $75,000 per year for salary and benefits, this totals $1.95M per year (every year) in program administrative costs.
The costs for these programs will be limited to the NYS Department of Transportation, NYS Thruway Authority, New York State Police and potentially the NYS Bridge Authority. “Major active work zones”, as defined in the proposed regulations, are limited to roadways under the jurisdiction of these agencies. There are no costs anticipated for local governments or others.
A potential exists for local enforcement agencies to receive compensation for enforcement services through agreements with NYSDOT or NYSTA. These services would be required on roadways not currently patrolled by the NYSP and would be requested in advance by the agency with maintenance jurisdiction of the roadway.
5. Local Government Mandates: Local governments will not be affected by the proposed regulations or the requirements for police presence and radar speed display signs. The roadways that meet the criteria for “major active work zones” are under state jurisdiction. Therefore, while it may be beneficial to provide these elements for work zones that don't meet the criteria outline in the proposed regulation, it is not required.
6. Paperwork: No additional paperwork will be required as a result of the proposed regulation.
7. Duplication: The proposed regulation outlines new requirements for the safety of highway construction and maintenance work zones. There is no duplication with other state, federal statutes or rules.
8. Alternatives: By the Work Zone Safety Act of 2005, the New York State Legislature has required NYSDOT to implement education, enforcement and engineering actions to improve the safety for workers and motorists in highway construction and maintenance work zones. To satisfy this intent, the Department of Transportation assembled a committee to review and recommend an approach that could be feasibly implemented while complying with the legislative mandate for increased presence of police in work zones and other requirements. In addition to the core team, additional input was sought from members whose participation was required by the 2005 Act. Team members included DOT, NYS Thruway Authority, State Police and contractors' representatives. Several alternatives were considered including:
Do nothing alternative: While programs currently exist for improving the safety of work zones, taking no additional steps to expand and improve these programs does not meet the intent of the Legislature in passing the recent law. Expanded enforcement presence, the use of speed display signs, and increased education efforts were clearly indicated by the Legislature. This alternative was eliminated.
Full Time Police Presence Alternative: Requiring 100 percent, full-time police presence is not logistically or economically feasible. This would double the cost of the enforcement requirement and may not significantly reduce traffic speeds any further than providing a police presence at the proposed level. Further, there would be no flexibility for highway agencies and/or their contractors to continue to perform needed work on highways if police were temporarily unavailable for deployment. Because of these issues, this alternative was eliminated.
Preferred Alternative: This alternative proposes to provide police personnel assigned to “major active work zones” to the extent practicable. Overall, this will provide a substantial increase in police activity at these sites. This enforcement presence will be conspicuous to motorists and will provide some flexibility to deploy limited police resources where they are most needed. Radar speed display signs will also be utilized in “major active work zones”. A system for review of work zone maintenance and protection of traffic design shall be established by the Department of Transportation for reviewing that project under its jurisdiction. Lastly, a work zone safety and awareness education program will be implemented by the Department.
The elements of the preferred alternative were incorporated into a draft concept of regulatory language and sent to interested stakeholders including; the Federal Highway Administration, NYS Department of Motor Vehicles, NYS Department of Criminal Justice Services, NYS Bridge Authority, Associated General Contractors, Long Island Contractors Association, Construction Industry Council, Empire State Contractors Association, General Contractors Association, NYS Association of Chiefs of Police, NYS Sheriff's Association, NYS Laborers Tri-Fund, and the Governor's Office of Regulatory Reform. Stakeholders were invited to comment on the language proposed and meet with the developers of the regulation language. Comments received were incorporated as appropriate into the preferred alternative and ultimately the proposed regulation.
9. Federal Standards: 23 CFR Part 630, subpart J was recently amended to include language intended to facilitate consideration and management of the broader safety and mobility impacts of work zones in a more coordinated and comprehensive manner across project development stages, and the development of appropriate strategies to manage these impacts. All state and local governments that receive federal-aid funding are required to comply with the provisions of the rule no later than October 12, 2007.
The proposed regulations are consistent with the requirements of the federal rule. The requirements of the proposed regulation will assist in New York State's compliance with 23 CFR Part 630, subpart J.
10. Compliance Schedule: This regulation shall be effective 60 days after publication of the final rule in the State Register. Due to resource constraints associated with police personnel, the requirement for police presence will be phased in as resources are available.
Regulatory Flexibility Analysis
1. Effect of rule: There will be little to no effect on small businesses in New York State. The requirements for police presence in “major active work zones” may have a small affect on local governments. For areas where local police agencies patrol roads that meet the criteria for “major active work zones”, additional agreements for enforcement services may be pursued by the DOT. The increased demand for police presence in these work zones may result in an increase in overtime funding for local police personnel to perform these services. Local highway agencies should not be impacted by the new requirements.
2. Compliance requirements: The proposed regulation does not require local governments or small businesses to perform any new record keeping or reporting.
3. Professional services: It is not anticipated that any professional services of any kind will be required. By either local governments or small businesses.
4. Compliance costs: Costs resulting from the proposed regulations will be borne by State highway agencies who perform construction or maintenance work in “major active work zones”. The highways that meet the criteria for “major active work zones” are not under the jurisdiction of local governments. No costs are expected for small businesses or local governments as a result of the regulation. To the extent that local police services may be utilized, the costs for such services will be borne by the state.
5. Economic and technological feasibility: The proposed regulations will not require any expenditures by small businesses or local governments for new equipment or software to comply.
6. Minimizing adverse impact: The proposed regulations will have no adverse economic impact on small businesses or local governments because the scope of highway construction and maintenance work is limited to roadways under the jurisdiction of the State.
7. Small business and local government participation: The language for the proposed regulation was distributed for review and comment to state agencies affected, FHWA, construction and contracting industry associations and labor organizations statewide. The New York State Association of Chiefs of Police and New York State Sheriff's Association were also notified and invited to provide input. Comments received during this review period have been considered and incorporated into the proposed rule text.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas: The proposed regulations will apply to work zones and education efforts throughout the state and are limited to highways under the jurisdiction of the state. No specific impact on rural areas, or any particular type of rural area, is anticipated.
2. Reporting, recordkeeping and other compliance requirements; and professional services: The proposed regulation does not require any record keeping or reporting by rural areas. The regulation does not require rural areas to provide or retain professional services.
3. Costs: Costs resulting from the proposed regulations will be borne by State highway agencies who perform construction or maintenance work in “major active work zones”. The highways that meet the criteria for “major active work zones” are not under the jurisdiction of local governments. No costs are expected for rural area governments or businesses.
4. Minimizing adverse impact: The proposed regulations will not impact, adversely or otherwise, rural areas as the scope of highway construction and maintenance work is limited to roadways under the jurisdiction of the State.
5. Rural area participation: The language for the proposed regulation was distributed for initial review and comment by state agencies affected, FHWA, construction and contractors as well as industry associations, labor organizations statewide. The Association of Chiefs of Police and New York State Sheriff's Association were also notified and invited to provide input. All comments received during this review period have been considered and incorporated into the proposed rule text.
Job Impact Statement
A Job Impact Statement is not submitted because the proposed addition of Part 164 to Title 17 of NYCRR, by its very nature, will not have an adverse impact on jobs or employment opportunities. As the proposed regulations may require an increased presence of police in “major active work zones”. This may require the hiring of additional police personnel as well as the possible need for additional administrative positions to coordinate the newly required programs. Consequently, the proposed addition will have either a positive impact or no impact on jobs and employment opportunities.
