Federal Register, Volume 67 Issue 177 (Thursday, September 12, 2002)

[Federal Register Volume 67, Number 177 (Thursday, September 12, 2002)]
[Rules and Regulations]
[Pages 57722-57736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23142]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket S-018]
RIN 1218-AB88

Safety Standards for Signs, Signals, and Barricades

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Occupational Safety and Health Administration (OSHA) is
revising the construction industry safety standards to require that
traffic control signs, signals, barricades or devices protecting
workers conform to Part VI of either the 1988 Edition of the Federal
Highway Administration (FHWA) Manual on Uniform Traffic Control Devices
(MUTCD), with 1993 revisions (Revision 3) or the Millennium Edition of
the FHWA MUTCD (Millennium Edition), instead of the American National
Standards Institute (ANSI) D6.1-1971, Manual on Uniform Traffic Control
Devices for Streets and Highways (1971 MUTCD).

DATES: This final rule will become effective December 11, 2002. The
incorporation by reference of certain publications listed in the rule
is approved by the Director of the Federal Register as of December 11,
2002.

ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates
the Associate Solicitor for Occupational Safety and Health, Office of
the Solicitor of Labor, U.S. Department of Labor, Room S-4004, 200
Constitution Avenue, NW., Washington, DC 20210, to receive petitions
for review of the final rule.
For copies of this Federal Register document contact: OSHA, Office
of Publications, U.S. Department of Labor, Room N-3101, 200
Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693-
1888. Electronic copies of this Federal Register document, as well as
other relevant documents, can be obtained from OSHA's Web page on the
Internet at http://www.osha.gov.

[[Page 57723]]

How to Obtain Copies of the MUTCD: The Federal Highway
Administration partnered with three organizations to print copies of
the Millennium Edition Manual of Uniform Traffic Control Devices for
sale. The organizations are: (1) American Traffic Safety Services
Association, 15 Riverside Parkway, Suite 100, Fredericksburg, VA 22406-
1022; Telephone: 1-800-231-3475; FAX: (540) 368-1722; www.atssa.com;
(2) Institute of Transportation Engineers, 1099 14th Street, NW., Suite
300 West, Washington, DC 20005-3438; FAX: (202) 289-7722; www.ite.org;
and (3) American Association of State Highway and Transportation
Officials; www.aashto.org; Telephone: 1-800-231-3475; FAX: 1-800-525-
5562.
On-line copies of the Millennium Edition are available for
downloading from DOT's Web site: http://mutcd.fhwa.dot.gov/kno-millennium.htm. On-line copies of the 1988 Edition of the Manual on
Uniform Traffic Control Devices (Revision 3, dated 9/93, with the
November 1994 Errata No. 1) are available for downloading from OSHA's
Web site: http://www.osha.gov/doc/highway_workzones. In addition, both
documents are available for viewing and copying at each OSHA Area
Office.

FOR FURTHER INFORMATION CONTACT: General Information and Press
Inquiries--Bonnie Friedman, Director, Office of Public Affairs,
Occupational Safety and Health Administration, U.S. Department of
Labor, Room N-3647, 200 Constitution Avenue, NW., Washington, DC 20210;
telephone: (202) 693-1999. Technical Information--Nancy Ford, Office of
Construction Standards and Construction Services, Occupational Safety
and Health Administration, U.S. Department of Labor, Room N-3468, 200
Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-
2345.

SUPPLEMENTARY INFORMATION:

I. Introduction

This final rule addresses the types of signs, signals, and
barricades that must be used to protect construction employees from
traffic hazards. The vast majority of road construction in the United
States is funded through Federal transportation grants. As a condition
to receiving Federal funding, the U.S. Department of Transportation's
(DOT's) Federal Highway Administration requires compliance with its
MUTCD.
In furtherance of OSHA's statutory mandate to protect the health
and safety of employees, OSHA also requires employers that are within
the scope of its authority to comply with the MUTCD. However, OSHA's
current standard incorporates the 1971 version of the MUTCD, which FHWA
has since updated. The purpose of this final rule is to update OSHA's
standard.

II. Procedural History

On April 15, 2002, OSHA published a direct final rule and a
companion proposed rule to update 29 CFR 1926 subpart G--Signs,
Signals, and Barricades [67 FR 18091]. The Agency explained that unless
a significant adverse comment is received within a specified period of
time, the rule would become effective. Alternatively, if significant
adverse comments are received, the agency would withdraw the direct
final rule and treat the comments as comments to the proposed rule.
Direct final rulemaking is used where the agency anticipates that the
rule will be non-controversial.
The Agency stated that, for purposes of the direct final rule
published on April 15, a significant adverse comment is one that
explains why the rule would be inappropriate, including challenges to
the rule's underlying premise or approach, or why it would be
ineffective or unacceptable without a change. In determining whether a
significant adverse comment would necessitate withdrawal of this direct
final rule, OSHA would consider whether the comment raises an issue
serious enough to warrant a substantive response in a notice-and-
comment process. A comment recommending an addition to the rule would
not be considered a significant adverse comment unless the comment
states why this rule would be ineffective without the addition. If
timely significant adverse comments were received, the agency would
publish a notice of significant adverse comment in the Federal Register
withdrawing this direct final rule no later than July 15, 2002.
In the companion proposed rule, which is essentially identical to
the direct final rule [67 FR 18145], OSHA stated that in the event the
direct final rule were withdrawn because of significant adverse
comment, the agency could proceed with the rulemaking by addressing the
comment and again publishing a final rule. The comment period for the
proposed rule ran concurrently with that of the direct final rule. Any
comments received under the companion proposed rule were to be treated
as comments regarding the direct final rule. Likewise, significant
adverse comments submitted to the direct final rule would be considered
as comments to the companion proposed rule; the agency would consider
such comments in developing a subsequent final rule.
On July 15, 2002, OSHA published a notice withdrawing the direct
final rule [67 FR 46375], explaining that of the eight comments that
had been submitted, the Agency was treating two as significant adverse
comments. Both comments challenged the August 13, 2002 effective date
of the rule. The two comments are being treated as comments on the
companion proposed rule, and are addressed below. In response to the
comments, OSHA has set the effective date at December 11, 2002.

III. Background

Currently, under 29 CFR part 1926 subpart G--Signs, Signals, and
Barricades, OSHA requires that employers comply with the 1971 MUTCD.
Specifically, employers must ensure that the following conform to the
1971 MUTCD: traffic control signs or devices used to protect
construction workers (29 CFR 1926.200(g)(2)); signaling directions by
flagmen (29 CFR 1926.201); and barricades for the protection of workers
(29 CFR 1926.202).
In contrast, a DOT rule, 23 CFR 655.601 through 655.603, requires
that such traffic control signs or devices conform to a more recent
version of the MUTCD. DOT regulations provide that the MUTCD is the
national standard for all traffic control devices on streets, highways
and bicycle trails. DOT's rule requires that traffic control devices on
roads in which federal funds were involved be in substantial
conformance with its MUTCD. In effect, the MUTCD has become a national
benchmark for all roads.
Under Title 23 of the U.S. Code, sections 109(d) and 402(a), the
Secretary of Transportation is authorized to promulgate and require
compliance with uniform guidelines to reduce injuries and fatalities
from road accidents. Specifically, section 109(d) authorizes DOT to
require (through its approval of State highway department requirements)
all highway projects in which Federal funds are involved to comply with
these types of uniform rules. Highways are broadly defined under
section 101(a)(11) of the DOT statute, and include roads, streets and
parkways. Under section 402(a), DOT is authorized to require each State
to have a highway safety program, including uniform standards for
traffic safety, approved by DOT. In accordance with this authority, DOT
promulgated 23 CFR part 655, subpart F (Traffic Control Devices on
Federal-Aid and Other Streets and Highways). In section 655.603(a), DOT
established its MUTCD as ``the national standard for all traffic

[[Page 57724]]

control devices installed on any street, highway, or bicycle trail open
to public travel * * * '' Under subpart F, the States were required to
adopt Revision 3 for federally funded highways within two years of its
issuance. The effective date of the final rule that adopted Revision 3
was January 10, 1994 [58 FR 65084 (December 10, 1993)]. A two-year
period for transition to full compliance with Revision 3 expired
January 10, 1996. Transition to full compliance with the Millennium
edition must be completed by January 2003. Consequently, employers have
already been required to comply with Revision 3 for all federal-aid
highways. In addition, all States have required compliance with
Revision 3 for most roads (although there is some variation among the
States regarding the extent to which compliance is required on
municipal, county, and private roads).
In the early 1970s, the FHWA assumed from ANSI responsibility for
publishing the MUTCD. The FHWA substantially rewrites the MUTCD every
10 to 20 years, and amends it every two to three years. Until the
Millennium Edition was published in December 2000, the most recent
edition was the 1988 edition. The 1988 edition consisted of 10 parts,
including part VI, ``Standards and Guides for Traffic Controls for
Street and Highway Construction, Maintenance, Utility, and Incident
Management Operations.'' The FHWA substantially revised and reissued
part VI in 1993 (Revision 3). There are substantial differences both in
substance and format between Revision 3 and the 1971 MUTCD. The most
recent edition of the MUTCD, the Millennium Edition published in
December 2000, contains some substantive changes and a new, easier to
use format. States are required to adopt the Millennium Edition or its
equivalent by January 2003.
Several stakeholders asked OSHA to update subpart G, because they
had to meet the outdated OSHA requirements in addition to the DOT rule.
They pointed out that Revision 3 and the Millennium Edition reflect
updated standards and technical advances based on 22 years of
experience in work zone traffic control design and implementation, as
well as human behavior research and experience. The National Committee
on Uniform Traffic Control Devices (``NCUTCD''), consisting of various
national associations and organizations interested in highway
construction or highway safety, including the American Road and
Transportation Builders Association, the Association of American
Railroads, the American Automobile Association, the National
Association of Governor's Highway Safety Representatives, and the
National Safety Council, unanimously resolved in January 1999 to
request that OSHA adopt Revision 3 in place of the 1971 MUTCD. In May
2000, OSHA's Advisory Committee on Construction Occupational Safety and
Health (``ACCSH'') also expressed support for adopting a more recent
edition of the MUTCD as the OSHA standard for the construction
industry.
OSHA reviewed the differences between the 1971 version, Revision 3
and the Millennium Edition and concluded that compliance with the more
recently published manuals would provide all the safety benefits (and
more) of the 1971 version. The differences between OSHA's regulations
that reference the 1971 MUTCD and DOT's modern regulations create
potential industry confusion and inefficiency, without in any respect
advancing worker safety. Accordingly, in an interpretation letter dated
June 16, 1999, to Cummins Construction Company, Inc., OSHA stated that
it would accept compliance with Revision 3 in lieu of compliance with
the 1971 MUTCD referenced in section 1926.200(g) through its de minimis
policy.
The numerous and various changes to the 1971 MUTCD reflected in
Revision 3 and the Millennium Edition stem from over 20 additional
years of experience in temporary traffic control zone design,
technological changes, and contemporary human behavior research and
experience. Revision 3 and the Millennium Edition provide highway work
zone planners more comprehensive guidance and greater flexibility in
establishing effective temporary traffic control plans based on type of
highway, traffic conditions, duration of project, physical constraints
and the nature of the construction activity. Revision 3 and the
Millennium Edition, accordingly, better reflect current practices and
techniques to best ensure highway construction worker safety and
health.
Accordingly, OSHA is amending the safety and health regulations for
construction to adopt and incorporate Revision 3 (and the option to
comply with the Millennium Edition), instead of the 1971 MUTCD, and to
make certain editorial changes. The amendment deletes the references in
29 CFR 1926.200(g)(2) and 1926.202 to the 1971 MUTCD and inserts
references to Revision 3 (and the option to comply with the Millennium
Edition). The amendment clarifies and abbreviates 29 CFR 1926.201(a),
by simply adopting the requirements of Revision 3 (and the option to
comply with the Millennium Edition) with regard to the use of flaggers.
The amendment also makes certain editorial corrections, replacing the
term workers for the term workmen and the term flaggers for the term
flagmen in 29 CFR 1926.200(g)(2) and 1926.201(a).
Updating OSHA's rule eliminates the technical anomaly of having to
meet both OSHA's outdated requirement to comply with the 1971 version
and DOT's more modern requirements. Instead, OSHA's final rule requires
compliance with Revision 3 (or, at the option of the employer, the
Millennium edition). In addition to harmonizing OSHA's requirements
with those of DOT, the final rule's additional safety measures
(described below) will be enforceable as OSHA requirements. With the
current emphasis on rebuilding the Nation's highways and improving
safety in work zone areas, OSHA's update is particularly appropriate.

IV. Discussion of Changes

Format and Style

Both the 1971 MUTCD and Revision 3 were written in narrative form
with ``must/shall,'' ``should,'' and ``may'' sentences indicating
mandatory requirements, guidance, and options, respectively. These
verbs were often intermixed within a single paragraph, leading to some
confusion. In the Millennium Edition, each subsection is organized by
``standard,'' ``guidance,'' and ``options'' categories. An additional
category, titled ``support,'' is also included. This format clarifies
what is expected of employers and the basis for those requirements.
Pursuant to the requirements of 29 CFR 1926.31, only the mandatory
language of standards that are incorporated through reference are
adopted as OSHA standards. Therefore, the summary of changes below will
focus primarily on the revisions that impose new requirements, or
modify already existing requirements. The summary does contain short
discussions on traffic control plans and tapers which, while not
required by MUTCD, reflect industry practice.
The 1988 edition of the MUTCD eliminated the term ``flagmen'' and
``workmen'' and replaced them with the more inclusive ``flaggers'' and
``workers.'' The final rule amends 29 CFR 1926.200(g)(2), 1926.201(a)
and 1926.203 to be consistent with these changes.
In the Millennium Edition, the FHWA also changed the title of part
6 from ``Standards and Guides for Traffic

[[Page 57725]]

Controls for Street and Highway Construction, Maintenance, Utility, and
Incident Management Operations'' to ``Temporary Traffic Control.'' The
new title is more succinct and more accurately describes the contents
of the section.

Sections 6A Through 6B (Introduction and Fundamental Principles)

Revision 3 and the Millennium Edition describe an overall ``guiding
philosophy'' of ``fundamental principles'' for good temporary traffic
control, which is not explicitly set out in part VI of the 1971 MUTCD.
Although these principles do not formally establish new requirements,
they provide a framework for understanding requirements set out in the
remainder of part VI. In the corresponding section, the 1971 ANSI
standard required that all temporary traffic control devices be removed
as soon as practical when they are no longer needed. Revision 3
downgraded this requirement to a recommendation. This issue was
revisited during the drafting of the Millennium Edition, which once
again requires the removal of signs when they are no longer needed. The
Millennium Edition requires that employers remove temporary traffic
control devices that are no longer appropriate, even when the work is
only suspended for a short period of time.

Section 6C (Temporary Traffic Control Elements)

The 1971 MUTCD does not discuss traffic control plans (TCPs), which
are used by industry to describe traffic controls that are to be
implemented in moving vehicle and pedestrian traffic through a
temporary traffic control zone. Revision 3 emphasizes the importance of
TCPs in facilitating safe and efficient traffic flow. Revision 3
recognizes that different TCPs are suitable for different projects and
does not detail specific requirements. The Millennium Edition offers
expanded guidance and options for TCPs, but it adds no requirements. In
both Revision 3 and the Millennium Edition, a TCP is recommended but
not required. Revision 3 and the Millennium Edition also discuss the
``temporary traffic control zone,'' comprised of several areas known as
the ``advance warning area,'' ``transition area,'' ``activity area,''
and ``termination area.'' In addition, Revision 3 and the Millennium
Edition explain the need for differing traffic control measures in each
control zone area.
The 1971 MUTCD only briefly describes ``tapers'' and provides a
formula for calculating the appropriate taper length. However, Revision
3 defines and discusses five specific types of tapers used to move
traffic in or out of the normal path of travel. It illustrates each of
them, and sets out specific formulae for calculating their appropriate
length. In all three editions, information relating to tapers is
limited to guidance and contains no mandatory requirements.
All versions of the MUTCD require the coordination of traffic
movement, when traffic from both directions must share a single lane.
Revision 3 and the Millennium Edition describe five means of
``alternate one-way traffic control,'' adding the ``Stop or Yield
Control Method'' to the methods described in the 1971 MUTCD. The ``Stop
or Yield Control Method'' is appropriate for a low-volume two-lane road
where one side is closed and the other side must serve both directions.
It calls for a stop or yield sign to be installed on the side that is
closed. The approach to the side that is not closed must be visible to
the driver who must yield or stop.

Section 6D (Pedestrian and Worker Safety)

Revision 3 adds a lengthy section, not found in the 1971 MUTCD,
that provides guidance and options on pedestrian and worker safety.
Under Revision 3, the key elements of traffic control management that
should be considered in any procedure for assuring worker safety are
training, worker clothing, barriers, speed reduction, use of police,
lighting, special devices, public information, and road closure.
Revision 3 recommends that these traffic control techniques be applied
by qualified persons exercising good engineering judgment. The
Millennium Edition makes this recommendation a requirement. The
Millennium Edition also requires advance notification of sidewalk
closures.

Section 6E (Hand Signaling or Flagger Control)

Revision 3 and the Millennium Edition require that a flagger wear
an orange, yellow, or ``strong yellow green'' (called ``yellow-green''
in Millennium Edition) vest, shirt, or jacket, instead of an ``orange
vest and/or an orange cap,'' as directed in the 1971 ANSI standard. For
nighttime work, Revision 3 requires that the outer garment be retro-
reflective orange, yellow, white, silver, or strong yellow-green, or a
fluorescent version of one of these colors. This clothing must be
designed to identify clearly the wearer as a person, and the clothing
must be visible through the full range of body motions. For nighttime
work, the Millennium Edition requires that the colors noted above be
retro-reflective, but does not mandate that the clothing be visible
through the full range of body motions. Both Revision 3 and the
Millennium Edition allow the employer more flexibility in selecting
colors.
Under the 1971 ANSI standard, the flagger was required to be
visible to approaching traffic at a distance that would allow a
motorist to respond appropriately. Revision 3 and the Millennium
Edition contain more specific requirements. Under both versions,
flaggers must be visible at a minimum distance of 1,000 feet. In
addition, Revision 3 and the Millennium Edition list training in ``safe
traffic control practices'' as a minimum flagger qualification.
Revision 3 and the Millennium Edition depart significantly from the
1971 ANSI standard by requiring that ``Stop/Slow'' paddles, not flags,
be the primary hand-signaling device. The paddles must have an
octagonal shape on a rigid handle, and be at least 18 inches wide with
letters at least six inches high. The 1971 ANSI standard recommended a
24-inch width. Revision 3 and the Millennium Edition require that
paddles be retro-reflectorized when used at night. Flags would still be
allowed in emergency situations or in low-speed and/or low-volume
locations. Revision 3 and the Millennium Edition differ in that
Revision 3's recommendations for flag and paddle signaling practice are
requirements in the Millennium Edition. In addition, the Millennium
Edition applies several new requirements when flagging is used. The
flagger's free arm must be held with the palm of the hand above
shoulder level toward approaching traffic and the flagger must motion
with the flagger's free hand for road users to proceed. These
requirements were guidance in Revision 3, and options in the 1971 ANSI
standard.

Section 6F (Devices)

Revision 3 and the Millennium Edition reflect numerous differences
in the design and use of various traffic control devices, such as
signs, signals, cones, barricades and markings, used in temporary
traffic control zones. Several signs or devices are described that are
not mentioned in Part VI of the 1971 ANSI standard. These signs and
devices, along with their location in Revision 3 and the Millennium
Edition, can be found in Table 1.

[[Page 57726]]

Table 1.
----------------------------------------------------------------------------------------------------------------
New signs and devices Revision 3 Millennium edition
----------------------------------------------------------------------------------------------------------------
Portable Changeable Message Signs....... 6F-2...................................... 6F.52.
Arrow Displays.......................... 6F-3...................................... 6F.53.
High-Level Warning Device or Flag Tree.. 6F-4...................................... 6F.54.
Temporary Raised Islands................ 6F-5h..................................... 6F.63.
Impact Attenuators...................... 6F-8a..................................... 6F.76.
Portable Barriers....................... 6F-5g and 8b.............................. 6F.75.
Temporary Traffic Signals............... 6F-8c..................................... 6F.74.
Rumble Strips........................... 6F-8d..................................... 6F.78.
Screens................................. 6F-8e..................................... 6F.79.
Opposing Traffic Lane Divider........... 6F-8f..................................... 6F.64.
Shoulder Drop-Off....................... 6F-1b(19)................................. 6F.41.
Uneven Lanes............................ 6F-1b(20)................................. 6F.42.
No Center Stripe........................ 6F-1b(21)................................. 6F.43.
Be Prepared to Stop..................... Vl-8c sign W20-7b......................... 6F.15, W3-1a.
Detour Marker and End Detour............ 6F-1c(4).................................. 6F.15.
Various Other Warning Signs............. V1-8a, signs W1-4bR, W1-4cR, W1-8, W3-3, ..........................
W4-1 and W4-3 and V1-8b, signs W5-2a and
W8-3a.
----------------------------------------------------------------------------------------------------------------
The dimensions, shape, legends or use of various signs have changed. Those changes are reflected in Table 2.

Table 2.
----------------------------------------------------------------------------------------------------------------
New signs Revision 3 Millennium edition
----------------------------------------------------------------------------------------------------------------
Turn Off 2-Way Radios and Cellular 6F-1b(18a) and (18b)...................... 6F.15, W22-2.
Telephones.
Stop Ahead and Yield Ahead.............. VI-8a, signs W3-1a and W3-2a.............. 6F.15, W3-1a & W3-2a.
Road Narrows and Narrow Bridge.......... VI-8a, signs W5-1 and W5-2................ 6F.15, W5-1 & W5-2.
Right Lane Ends......................... VI-8c, sign W9-1.......................... 6F.15, W9-1.
Length of Work.......................... 6F-1c(2).................................. 6F.15, G20-1.
End Road Work........................... 6F-1c(3).................................. 6F.15, G20-2a.
----------------------------------------------------------------------------------------------------------------

Also, Revision 3 and the Millennium Edition offer expanded options
for the color of temporary traffic control signs. Signs that under the
1971 ANSI standard were required to have orange backgrounds may now
have fluorescent red-orange or fluorescent yellow-orange backgrounds.
The 1971 ANSI standard required that signs in rural areas be posted
at least five feet above the pavement; signs in urban areas were
required to be at least seven feet above the pavement. Revision 3
eliminated the distinction between urban and rural areas, and
downgraded the requirement to a recommendation. It recommended that
signs in all areas have a minimum height of seven feet. In the
Millennium Edition, the FHWA returned to the 1971 ANSI requirements.
The Millennium Edition also introduced the requirement that signs and
sign supports be crashworthy.
The Millennium Edition introduced and clarified mandatory
requirements for the design of the following signs: Weight Limit,
Detour, Road (Street) Closed, One Lane Road, Lane(s) Closed, Shoulder
Work, Utility Work, signs for blasting areas, Shoulder Drop-Off, Road
Work next XX KM (Miles), and Portable Changeable Message.
The dimensions, color or use of certain channelizing devices have
also changed. ``Channelizing devices'' include cones, tubular markers,
vertical panels, drums, barricades, temporary raised islands and
barriers. The 1971 ANSI standard required that traffic cones and
tubular markers be at least 18 inches in height and that the cones be
predominantly orange. Revision 3 raised the minimum height for traffic
cones and tubular markers to 28'' ``when they are used on freeways and
other high speed highways, on all highways during nighttime, or
whenever more conspicuous guidance is needed.'' (6F-5b(1), 5c(1))
Revision 3 also expanded the color options for cones to include
fluorescent red-orange and fluorescent yellow-orange. The Millennium
Edition maintained these requirements.
Revision 3 and the Millennium Edition require that vertical panels
be 8 to 12 inches wide, rather than the 6 to 8 inches required by the
1971 ANSI standard. Under Revision 3 and the Millennium Edition, drums
must be made of lightweight, flexible and deformable materials, at
least 36 inches in height, and at least 18 inches in width. Steel drums
may not be used. The Millennium Edition adds the requirement that each
drum have a minimum of two orange and two white stripes with the top
stripe being orange. Revision 3 and the Millennium Edition require that
delineators only be used in combination with other devices, be white or
yellow, depending on which side of the road they are on, and be mounted
approximately four feet above the near roadway edge.
The 1971 ANSI standard required warning lights to be mounted at
least 36 inches high. Revision 3 and the Millennium Edition reduced the
minimum height to 30 inches and introduced new requirements for warning
lights. Type A low intensity flashing warning lights and Type C steady-
burn warning lights must be maintained so as to allow a nighttime
visibility of 3000 feet. Type B high intensity flashing warning lights
must be visible on a sunny day from a distance of 1000 feet.
Revision 3 and the Millennium Edition contain an additional
requirement, not found in the 1971 ANSI standard, that requires
employers to remove channelizing devices that are damaged and have lost
a significant amount of their retro-reflectivity and effectiveness.
Revision 3 and the

[[Page 57727]]

Millennium Edition also specifically prohibit placing ballast on the
tops of drums or using heavy objects such as rocks or chunks of
concrete as barricade ballast.
Revision 3 and the Millennium Edition address in greater detail the
appearance and use of pavement markings and devices used to delineate
vehicle and pedestrian paths. They require that after completion of the
project, pavement markings be properly obliterated to ensure complete
removal and a minimum of pavement scars. Whereas Revision 3 requires
that all temporary broken-line pavement markings be at least four feet
long, the Millennium Edition sets the minimum at two feet.

Section 6G (Temporary Traffic Control Zone Activities)

This section, not found in the 1971 ANSI standard, provides
information on selecting the appropriate applications and modifications
for a temporary traffic control zone. The selection depends on three
primary factors: Work duration, work location, and highway type.
Section 6G in both Revision 3 and the Millennium Edition emphasizes
that the specific typical applications described do not include a
layout for every conceivable work situation and that typical
applications should, when necessary, be tailored to the conditions of a
particular temporary traffic control zone.
Among the specific new requirements in Revision 3 and the
Millennium Edition are the following: retro-reflective and/or
illuminated devices in long term (more than three days) stationary
temporary traffic control zones; warning devices on (or accompanying)
mobile operations that move at speeds greater than 20 mph; warning sign
in advance of certain closed paved shoulders; a transition area
containing a merging taper in advance of a lane closure on a multi-lane
road; temporary traffic control devices accompanying traffic barriers
that are placed immediately adjacent to the traveled way; and temporary
traffic barriers or channelizing devices separating opposing traffic on
a two-way roadway that is normally divided.
The Millennium Edition includes several additional requirements in
Section 6G. It requires the use of retro-reflective and/or illuminated
devices in intermediate-term stationary temporary traffic control
zones. A zone is considered intermediate-term if it is occupying a
location more than one daylight period up to three days, or if there is
nighttime work in the zone lasting more than one hour. The Millennium
Edition also requires a transition area containing a merging taper when
one lane is closed on a multi-lane road. When only the left lane on
undivided roads is closed, the merging taper must use channelizing
devices and the temporary traffic barrier must be placed beyond the
transition area channelizing devices along the centerline and the
adjacent lane. In addition, when a directional roadway is closed,
inapplicable WRONG WAY signs and markings, and other existing traffic
control devices at intersections within the temporary two-lane two-way
operations section, must be covered, removed, or obliterated.

Revision 3 Section 6H (Application of Devices)

Revision 3 and the Millennium Edition provide an extensive series
of diagrams illustrating Atypical applications' of the temporary
traffic control requirements. These illustrations are intended as
practical guides on how to apply all the factors discussed in other
chapters and displayed on Figures and Tables throughout Part VI.

Effective Date

In the direct final rule, OSHA set an effective date of August 13,
2002. In two of the eight comments received in response to the direct
final rule and proposed rule, commenters asserted that the effective
date needed to be delayed by one year. The Agency is treating those two
comments as significant adverse comments.
The National Electrical Contractors Association (NECA) asserted
that an additional year was needed to ``allow enough time for industry
organizations to notify their constituents of their new compliance
responsibilities and for contractors to achieve full compliance.'' (EX
2-3). Specifically, NECA stated:

Most construction contractors not involved in routine highway
construction are unaccustomed to the details [of the updated MUTCD]
* * * Utility contractors performing progressive removal and/or
installation of electrical and communication line, piping, sewer
system are not usually involved in the construction and maintenance
of roadways * * * There could be a shortage of traffic control
devices from suppliers and manufacturers to meet expanded requests
if there is an abrupt need to achieve full compliance among a
broader construction audience than expected. This could potentially
lead to unpredicted non-compliance among highway construction
contractors as well as among non-highway contractors. For example, a
representative of a major manufacturer of temporary traffic lane
marking recently told NECA that the company's typical months for
producing the tape for the upcoming construction season are February
and March, suggesting a possible shortage of material until well
after the proposed OSHA effective compliance date of August 2002.
Available material and equipment supply may not meet a rapid demand.
Manufacturers and suppliers should be allowed time to expand their
inventory in anticipation of expanded demand.

(EX 2-3).
The National Association of Homebuilders (NAHB) submitted similar
comments (EX-2-7), asserting that:

Most residential construction is not involved in routine highway
construction and therefore, most are not aware of the requirements
of the MUTCD. * * * [T]here may be a shortage of traffic control
devices and equipment that could lead to significant cost increases
or non-compliance with the new standard if these are unavailable.
This would add additional costs to residential construction projects
that are currently in progress or for contracts for construction
endeavors that are already in place.

(EX 2-7).
The Agency finds that these assertions fail to demonstrate a need
for a one-year delay in the effective date. Implicit in the comments is
the assumption that the MUTCD has applied only to employers engaged in
road work, while OSHA is now seeking to apply the revised MUTCD to
contractors engaged in non-road work affected by road traffic hazards.
The assumption that the requirements of the 1971 MUTCD were limited to
the construction/repair of roads is incorrect. In section 6A-3
(``Application of Standards'') of the 1971 MUTCD, ``construction and
maintenance operations'' covered by the manual are described as
including ``encroachments by adjacent building construction.''
Also, with respect to NECA's comment, as stated in section 6A-2
(Scope) of the 1971 MUTCD, the requirements have applied specifically
to ``utility work.'' Additionally, in 29 U.S.C. 1926 subpart V (Power
Transmission and Distribution), section 1926.955(b)(7) requires that in
metal power transmission/distribution tower construction, adequate
traffic control must be maintained when crossing highways with
equipment as required by the provisions of 1926.200 (g)(2)--which had
incorporated the 1971 MUTCD. This Subpart V requirement has been in
place since 1973. Therefore, employers other than just those
constructing/repairing roads have had to comply with the 1971 MUTCD for
approximately 30 years.
As discussed below, in analyzing the costs of updating the rule,
OSHA estimates that the overwhelming majority of roads in the United
States

[[Page 57728]]

are subject to DOT requirements to comply with Revision 3 or the
Millennium Edition. Consequently, the percentage of worksites where
equipment is now going to be required for the first time is small.
Furthermore, it is unlikely that many construction employers work
exclusively on sites subject to DOT jurisdiction. As long as some of
their work has been subject to DOT requirements, they have had to have
the equipment necessary to comply with the updated MUTCD since 1996.
Therefore, it is unlikely that whatever new demand there is for
equipment will be significant relative to current industry production
levels.
The NAHB and NECA also stated that more time is needed to train
both the industry and OSHA compliance officers on the updated MUTCD. In
light of the fact that most affected employers have been required to
comply with the updated MUTCD since 1996, it appears that a one-year
extension in the effective date, which was requested by these
commenters, is not necessary. However, to facilitate the Agency's
emphasis on outreach efforts, OSHA has added 120 days to the original
proposed effective date; the new effective date is December 11, 2002.
This will also accommodate the small number of employers affected by
this rule that have not until now been required to comply with the
updated MUTCD requirements.

Regulatory Planning and Review

Executive Order 12866 (Regulatory Planning and Review)

Relationship to Existing DOT Regulations
Through this rule, OSHA is requiring that traffic control signs,
signals, barricades or devices conform to Revision 3 or Part VI of the
Millennium Edition, instead of the ANSI MUTCD. The ANSI MUTCD was
issued in 1971. In 1988 the FHWA substantially revised and reissued the
MUTCD. Since that time, FHWA has published several updates, including a
1993 revision to Part VI--Revision 3. In December 2000, FHWA published
a Millennium Edition of the MUTCD that changed the format and revised
several requirements. Employers that receive Federal highway funds are
currently required to comply with Revision 3 and have up until January
2003 to bring their programs into compliance with the Millennium
Edition.
This is a significant regulatory action and has been reviewed by
the Office of Management and Budget under Executive Order 12866. OSHA
has determined that this action is not an economically significant
regulatory action within the meaning of Executive Order 12866. Revision
3 of the MUTCD adds to the ANSI requirements some new, alternative
traffic control devices and expanded provisions and guidance materials,
including new typical application diagrams that incorporate technology
advances in traffic control device application. Part VI of the
Millennium Edition includes some alternative traffic control devices
and only a very limited number of new or changed requirements. However,
the activities required by compliance with either Revision 3 or the
Millennium Edition would not be new or a departure from current
practices for the vast majority of work sites. All of these
requirements are now or have been part of DOT regulations that cover
work-related activities on many public roadways.
According to DOT regulations, the MUTCD is the national standard
for streets, highways and bicycle trails. While OSHA's de minimus
policy is applied to situations in which there is failure to comply
with the 1971 ANSI MUTCD when there is compliance with Revision 3, this
action will reduce any confusion created by the current requirement for
employers to comply both with the 1971 ANSI MUTCD and DOT's MUTCD.
Percentage of Roads Covered Under OSHA's Standard Versus the DOT
Standard
The majority of U.S. roads are currently covered by DOT regulations
and their related State MUTCDs. DOT regulations cover all federal-aid
highways, which carry the majority of traffic. Moreover, many states
extend MUTCD coverage to non-federal-aid and private roads. Thus, the
requirements imposed by this OSHA final rule will be new only for the
small percentage of the work that is not directly regulated by DOT or
state transportation agencies.
Federal-Aid Highways. Employers must comply with Revision 3 for all
construction work respecting federal-aid highways. Although federal-aid
highways constitute a minority of all public highways as measured by
length, these highways carry the great majority of traffic. According
to OSHA's analysis, 84 percent of vehicle-miles are driven on federal-
aid highways (see Table 1). Though not a perfect measure, vehicular use
corresponds more directly than length of road to the need for
construction, repair, and other work activities addressed by the MUTCD.
This suggests that most of these activities occur with respect to
federal-aid highways. Conforming to the standards of the MUTCD during
these work activities is a clear requirement of receiving federal
highway funds and is therefore regulated by DOT.
State, Local, County and Municipal Roads (not Receiving Federal
Aid). The available data suggest that work respecting most non-federal-
aid roads are required to comply with the MUTCD. Many states choose to
regulate public roadways that are not federal-aid highways and thereby
extend the coverage of the MUTCD. For example, OSHA reviewed the
practices of nine states (Alabama, Arkansas, Colorado, Connecticut,
Delaware, Kentucky, Michigan, North Carolina, and Texas), which include
23 percent of all U.S. public roads. In conducting this review, OSHA
found that eight of the states require MUTCD standards on all state
roads, while the ninth state requires MUTCD standards on state roads if
the state contracts the work to be done. Five of these states also
require that MUTCD standards be met on all county and municipal roads.
For the sample of nine states, individual state coverage of public
roads by state MUTCDs ranges from 12 percent to 100 percent (see Table
2). OSHA found that, on average, MUTCD coverage of all public roads in
these nine states is 84 percent. (OSHA computed the average across the
nine states by weighting by total highway miles.)
Private Roads. OSHA also examined MUTCD coverage of private roads.
Although data on the extent of private roads is very limited, the best
available information indicates that about 20 percent of the total
mileage is accounted for by private roads (see Table 2). Some of these
private roads are covered by State MUTCD standards. Of the nine states
examined by OSHA, one state included private roads under the MUTCD
standards if the state enforced traffic laws on these roads (e.g.,
roads in gated communities). Another state extended MUTCD standards to
private roads if the state was involved in road design or approval. A
third state deferred coverage to municipal ordinances, which may
require meeting MUTCD standards on private roads. Thus, although it is
clear that some local governments extend coverage to private roads, no
data are available to specify with precision the extent to which this
is the case.
Additional Incentives To Comply With the MUTCD
The estimates of the percentage of roads and highways covered by
the MUTCD presented above are conservative. States, localities and
their contractors have additional incentives to comply with the MUTCD
when it is

[[Page 57729]]

not required. OSHA policy reinforces these incentives because OSHA does
not enforce compliance with the ANSI MUTCD when there is compliance
with Revision 3.
Under 23 U.S.C. 402(a), states must have highway safety programs
that are approved by the Secretary of Transportation. The Secretary is
directed to promulgate guidelines for establishing these programs.
Those guidelines state that programs ``should'' conform with the MUTCD.
DOT does not have the authority to require compliance with the MUTCD on
roads that do not receive federal aid, but recommends it. In light of
this, and the statement that the MUTCD is ``the national standard for
all traffic control devices'' (23 CFR 655.603(a)), the MUTCD has become
the standard of care for litigation purposes. Thus, when a state or
local government engages in a road construction project, it will likely
seek to meet a reasonable standard of care (i.e. compliance with a
recent edition of the MUTCD). If it does not, it could face substantial
liability if the construction on its roads is a contributing factor in
an accident. While compliance with the MUTCD does not insulate a state
or locality from liability, it significantly reduces its exposure.
Moreover, many of the contractors who conduct work on covered roads
are likely to conduct work on non-covered roads as well. In the
interest of efficiency, these contractors are likely to consistently
apply the current version of the MUTCD to all work, rather than switch
back to the ANSI version for a small percentage of their overall
business.
Finally, as is discussed below, signs and devices meeting 1993
specifications are often less expensive than signs meeting 1971 ANSI
specifications. This has provided contractors involved in road
construction and repair operations with a natural incentive to replace
old and worn signs with signs meeting the more up-to-date standard.
Costs Associated With the DOT Standard
DOT has consistently found that their revisions to the MUTCD as a
whole and to its various parts have not given rise to new annual costs
of compliance that are significant within the meaning of that term as
used in Executive Order 12866. The Federal Register Notice (December
10, 1993) on the final amendment to the Manual on Uniform Traffic
Control Devices (MUTCD); Work Zone Traffic Control states:

The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or
significant within the meaning of Department of Transportation
regulatory policies and procedures. As previously discussed in the
above sections on `Changed Standards' and `New Devices,' this
revision of Part VI adds some new, alternative traffic control
devices, and only a very limited number of new or changed
requirements. Most of the changes included in this version of part
VI are expanded guidance materials, including many new Typical
Application Diagrams. The FHWA expects that application uniformity
will improve at virtually no additional expense to public agencies
or the motoring public. Therefore, based on this analysis a full
regulatory evaluation is not required.

58 FR 65084, 65085.
The Federal Register Notice (December 18, 2000) on the final
amendment to the Manual on Uniform Traffic Control Devices for Streets
and Highways (MUTCD) states:

The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or
significant within the meaning of Department of Transportation
regulatory policies and procedures. It is anticipated that the
economic impact of this rulemaking will be minimal. Most of the
changes in this final rule provide additional guidance,
clarification, and optional applications for traffic control
devices. The FWHA believes that the uniform application of traffic
control devices will greatly improve the traffic operations
efficiency and the safety of roadways at little additional expense
to public agencies or the monitoring public. Therefore, a full
regulatory evaluation is not required.

65 FR 78923, 78957.
Moreover, OSHA has conducted detailed comparisons of the various
versions of the MUTCD. The OSHA comparative analysis indicates that the
majority of changes to the 1971 version offered increased flexibility,
were advisory in nature, or changed mandatory requirements to non-
mandatory provisions. Table 3 summarizes the differences between the
1971 ANSI MUTCD and the 1993 Revision that either potentially increase
costs or lead to increased flexibility. In cases of increased
flexibility and changes to non-mandatory provisions, it is likely that
the effect will be to decrease the costs of compliance.
In a few instances, however, the 1993 Revision mandated sign or
device changes that could lead to cost increases because contractors
would need to purchase new signs for some projects. Table 4 summarizes
these cases, which include specifications for stop/slow paddles, no
parking signs, ``road narrows'' and other warnings, and reflective
traffic drums. The table lists the changes in specifications as well as
presents prices for the 1971 versus the 1993 version of the sign or
device. Excluded from Table 4 are ``approach warning signs,'' which are
additional signs required by the 1993 MUTCD in highly vulnerable areas.
For stop/slow paddles, the more recent MUTCD version of sign (18''
by 18'') is less expensive than the older, ANSI version (24'' by 24''),
with vendors reporting a price difference of $31.50 per sign. No
parking signs that include the international ``no parking'' symbol (as
required in the 1993 MUTCD) but do not include a legend are only $0.80
more than the older ANSI version of the signs containing only a legend
(the 1993 MUTCD does not require a legend). For ``road narrows'' and
other warning signs, the MUTCD version (36'' by 36'') is $31 more than
the ANSI-specification in the most direct comparison that OSHA
identified ($90, as compared to $59). One vendor, however, sold a
version of the new sign using an alternative metal for less than $47.
Regarding reflective traffic drums, one vendor reported that reflective
55-gallon metal drums (1971 ANSI standard) are no longer produced. When
they were last available they sold for $45 to $60 each. A reflective
traffic drum meeting the MUTCD standard is $68.
To summarize, prices for signs meeting 1993 MUTCD specifications
are not significantly higher than prices for signs meeting 1971 ANSI
specifications; in fact, the prices are often lower. Moreover, for
devices such as reflective traffic drums, it is not even possible to
replace old and worn items with items meeting 1971 standards. This
suggests that contractors involved in road construction and repair
operations have had an incentive to update to 1993 specifications as
their equipment has worn out. The primary effect of the OSHA standard,
will be to speed the process of switching to 1993 specifications for
contractors who have not already chosen to switch.
To further gauge the potential burden of updating to 1993 MUTCD
specifications, OSHA examined the forty-four colored illustrations of
the different types of typical highway construction work zones
presented in Sections 6G through 6H of the 1993 MUTCD. The majority of
examples of work zones presented in the MUTCD represent situations that
are currently covered by DOT regulations, and would not be affected by
the OSHA standard. However, OSHA was able to identify three examples of
situations that may not fall under DOT regulations, but would be
included in the scope of the OSHA standard.
The first example examined was a ``Lane closure on minor street,''

[[Page 57730]]

illustrated by Figure TA-18 (see page 142-3 of the MUTCD). In this
example, compliance with the 1993 MUTCD would require no changes.
Requirements would be met using signs and devices meeting the 1971 ANSI
specifications. Consequently, no incremental costs would be
attributable to compliance with the 1993 MUTCD.
The second example examined was a ``Lane closure for one lane-two
way traffic control,'' illustrated by Figure TA-10 (see page 126-7 of
the MUTCD). In this setting, compliance with the 1993 MUTCD is achieved
by adding two flagger signs and four advance warning signs (two ``Right
[Left] Lane Closed Ahead'' and two ``Road Construction XXX Ft'') to the
1971 ANSI requirement. In addition, two flagger hand signaling devices
(sign paddles) meeting the 1993 dimensions (24'' by 24'') are needed. A
Flagger sign can be purchased for about $34, while the ``Right [Left]
Lane Closed Ahead'' and ``Road Construction XXX Ft'' signs can be
purchased for about $47 each. The two sign paddles are $67.\1\ Thus,
compliance with the 1993 MUTCD would involved a one-time expenditure of
$323.
---------------------------------------------------------------------------

\1\ Prices are from Newman Signs (http://www.newmansigns.com)
---------------------------------------------------------------------------

Finally, OSHA examined a third situation, ``Lane closure on low-
volume two-lane road,'' illustrated by Figure TA-11 (see page 128-9 of
the MUTCD). It is important to note that this situation would likely
apply to a county or state road, and most states already extend the
coverage of the MUTCD in this setting (see OSHA review of 9 states
presented below). Here, compliance with the 1993 MUTCD is achieved
through the use of two ``Right [Left] Lane Closed Ahead'' and two
``Road Construction XXX Ft'') to the 1971 ANSI requirement, which can
be purchased for about $47 each.\2\ In addition, one advance warning
sign with the international symbol for ``yield'' is needed. These can
be purchased for roughly $100.\3\ Thus, compliance with the 1993 MUTCD
would involve a one-time expenditure of $288. If it is assumed that
contractor chooses to use 20 drums instead of 20 cones, this would
involve a one-time additional expenditure of $1,360, increasing
compliance costs to $1,648.
---------------------------------------------------------------------------

\2\ Prices are from Newman Signs (http://www.newmansigns.com/).
\3\ Prices are from Newman Signs (http://www.newmansigns.com/).
---------------------------------------------------------------------------

In sum, DOT has consistently found that changes and revisions to
the MUTCD do not lead to significant compliance costs. OSHA's
comparative assessment of the 1971 ANSI requirements and the 1993 MUTCD
tends to support DOT's findings. Because the OSHA regulation applies
the MUTCD as developed by DOT, the costs of compliance with the OSHA
regulation will be insignificant as well.
Costs Attributable to the OSHA Standard
The analysis discussed above indicates that the costs of compliance
for OSHA's proposed action will not be significant under Executive
Order 12866. As DOT has estimated, the costs associated with the
various versions of the MUTCD and its revisions are small. OSHA's
comparative analysis of the 1971 ANSI and 1993 MUTCD supports DOT's
estimates. In addition, the overwhelming majority of public roads are
already covered by DOT regulations and their related State MUTCDs. As
discussed above, OSHA estimated that more than 80 percent of work
performed on U.S. roads is covered by DOT regulations and their related
State MUTCDs. Due to the extension of MUTCD requirements to non-
federal-aid and private roads as well as additional incentives to
comply with the MUTCD in situations where compliance is not mandatory,
the percentage of work already covered is likely to be much higher than
80 percent. The costs of compliance for those directly regulated by
OSHA will, therefore, be substantially lower than those estimated for
compliance with DOT regulations.
The differences between OSHA's current regulations that reference
the ANSI MUTCD and DOT's regulations create potential industry
confusion and inefficiency. OSHA's comparative analysis of the 1971
ANSI and 1993 MUTCD indicated that the majority of changes offered
increased flexibility, were advisory in nature, or changed mandatory
requirements to non-mandatory provisions. Since the costs of the
proposed action are so minimal, it is possible that they will be
completely offset by eliminating the inefficiency associated with
inconsistent OSHA and DOT regulations as well the direct cost savings
from enhanced flexibility and changes to non-mandatory provisions
embodied in the 1993 MUTCD.
Technological and Economic Feasibility
The MUTCD is a standard that has been routinely updated for decades
by DOT and in fact predates the federal highway program. The process
used to update this standard is for DOT to work with state highway
officials, who provide federal officials with information on the
evolving nature of traffic control devices and industry practices. The
federal role consists primarily of compiling this evolving set of
practices and devices into a national manual--the MUTCD--that includes
standards, guidance, and options. As noted by a DOT official,\4\ the
MUTCD essentially codifies current industry practice. Thus, most
potentially affected parties--local governments, highway and utility
contractors, and others--already apply the MUTCD, which clearly
demonstrates that doing so is both technologically and economically
feasible.
---------------------------------------------------------------------------

\4\ Personal communication between Rudolph Umbs, Federal Highway
Administration, and John Duberg, TechLaw, December 12, 2000.
---------------------------------------------------------------------------

Regulatory Flexibility Screening Analysis
In order to determine whether a regulatory flexibility analysis is
required under the Regulatory Flexibility Act, OSHA has evaluated the
potential economic impacts of this action on small entities. Table 5
presents the data used in this analysis to determine whether this
regulation would have a significant impact on a substantial number of
small entities. For purposes of this analysis, OSHA used the Small
Business Administration (SBA) Small Business Size Standard and defined
a small firm as a firm with $27.5 million or less in annual receipts.
OSHA guidelines for determining the need for regulatory flexibility
analysis require determining the regulatory costs as a percentage of
the revenues and profits of small entities. The analysis presented here
is in most respects a worst-case analysis. OSHA examined the situation
of a small firm with less than 20 employees all of whose employees work
on projects not previously covered by Revision 3 or the Millennium
Edition. OSHA further assumed that the firm previously complied only
with the existing OSHA rule (1971 ANSI MUTCD). OSHA derived estimates
of the profits and revenues per firm for establishments with fewer than
20 employees for ``Highway and Street Construction'' (SIC 1611) using
data from Census and Dun and Bradstreet. Compliance costs were
estimated using the third situation examined under Costs Associated
with the DOT Standard (``Lane closure on low-volume two-lane road'')
and assuming the worst-case scenario, where compliance costs were
$1,648. This value served as OSHA's estimate for upper-bound compliance
costs per construction crew. OSHA assumed that a highway construction
crew consists of four employees and computed an estimate of average
total cost of the regulation per establishment of $2,161. Annualized
compliance costs were $308 per establishments for small entities,

[[Page 57731]]

amounting to 0.03 percent of revenue and 0.85 percent of profit. Based
on this worst-case evaluation, OSHA certifies that this regulation will
not have a significant economic impact on a substantial number of small
entities.

Table 1.--Federal Aid Highway Length, Lane-Miles and Vehicle-Miles
----------------------------------------------------------------------------------------------------------------
Length of roadway Annual Vehicle-
System (Miles) \1\ Lane-Miles \2\ Miles \3\
----------------------------------------------------------------------------------------------------------------
Interstate Highways.................................... 46,564 208,649 648,124
Other National Highways................................ 113,995 333,355 546,028
--------------------
Total National Highways............................ 160,559 542,004 1,194,152
====================
Other Federal-Aid...................................... 797,783 1,719,703 1,093,975
--------------------
Total Federal-Aid Highways......................... 958,342 2,261,707 2,288,127
====================
Non Federal-Highways................................... 2,973,673 5,947,348 420,201
--------------------
Total Highways..................................... 3,932,015 8,209,055 2,708,328
====================
Federal-Aid as a Percent of Total...................... 24% 28% 84%
----------------------------------------------------------------------------------------------------------------
\1\ FHWA, Highway Statistics: 1999, Section V, Table HM-16.
\2\ FHWA, Highway Statistics: 1999, Section V, Table HM-48.
\3\ FHWA, Highway Statistics: 1999, Section V, Table VM-3.

Table 2.--Highway Miles Covered by Federal or State MUTCDs: Selected States
--------------------------------------------------------------------------------------------------------------------------------------------------------
Covered
Town, miles as a
State Federal State County township, Other\2\ Total miles Total miles share of
agency\1\ agency municipal covered total
(percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama\3\...................................... 733 10,869 ........... ........... ........... 11,602 94,246 12
Arkansas\4\..................................... 2,135 16,366 65,347 13,710 1 97,559 97,559 100
Colorado\4\..................................... 6,969 9,071 55,447 12,363 1,299 85,149 85,149 100
Connecticut\4\.................................. 4 3,717 ........... 16,807 260 20,788 20,788 100
Delaware\5\..................................... 7 5,065 ........... ........... ........... 5,072 5,748 88
Kentucky\6\..................................... 1,013 27,477 ........... ........... ........... 28,490 74,120 38
Michigan\4\..................................... 2,083 9,725 89,344 20,570 ........... 121,722 121,722 100
North Carolina\7\............................... 2,361 78,103 ........... ........... ........... 80,464 99,301 81
Texas\4\........................................ 454 79,164 142,285 78,488 116 300,507 300,507 100
--------------
9 State Total............................... 15,759 239,557 352,423 141,938 1,676 751,353 899,140 84
--------------
U.S. Total...................................... 118,391 773,904 1,766,396 1,206,925 66,401 ........... 3,932,017 ...........
--------------
9 States as a % of U.S. Total................... 13% 31% 20% 12% 3% ........... 23% ...........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: FHWA, Highway Statistics: 1999, Section V, Table HM-10
\1\ Roadways in Federal parks, forests, and reservations that are not part of the State and local highway systems.
\2\ Includes State park, State toll, other State agency, other local agency, and other roadways not identified by ownership.
\3\ County, other local public, and private roads are covered if the state was part of design work or road approval.
\4\ All state, county, and municipal roads are covered.
\5\ Municipal and private roads are not covered.
\6\ All state, county, and municipal roads are covered if the state contracts the work.
\7\ NC has no county road; municipalities ``should'' use the MUTCD.
\8\ States for which OSHA reviewed MUTCD requirements.

Table 3.--Changes in 1993 MUTCD (vs. 1971 ANSI) that Lead to Potential Cost Decreases or Increases
----------------------------------------------------------------------------------------------------------------
1971 ANSI MUTCD 1993 Rev 3, Part VI MUTCD Nature of change(s)
----------------------------------------------------------------------------------------------------------------
6E-3 Flagmen: 6E-3: High Visibility Clothing: ....................................
The use of an orange vest, and/or an 1. For daytime work, the flagger's Mandatory provisions offer more
orange cap shall be required for vest, shirt, or jacket shall be flexibility--wider range of
flagmen. orange, yellow, strong yellow green acceptable garments and colors.
or fluorescent versions of these
colors.
For nighttime * * * garments shall For nighttime work, * * * the Clarification of visibility distance
be reflectorized. garments shall be retroreflective: requirements.
1. Orange, yellow, white, silver, Millennium Edition no longer
strong yellow-green, or a requires visibility through full
fluorescent version of one of range of body motions.
these.
2. Shall be visible at a minimum ....................................
distance of 1,000 feet.
3. Shall be designed to identify ....................................
clearly the wearer as a person and
be visible through the full range
of body motions.

[[Page 57732]]

6E-2. Hand-Signaling Devices: 6E-4. Hand-Signaling Devices: Sign change.
Sign paddles should be at least 24 The standard STOP/SLOW sign paddle ....................................
inches wide * * * shall be 18 inches square.
6E-5. Flagger Stations: 6E-6. Flagger Stations: ....................................
* * * distance is related to Table VI-1, Guidelines for length of Guidance provisions that offer more
approach speed and physical longitudinal buffer space, may be flexibility.
conditions at the site; however, used for locating flagger stations
200 to 3000 feet is desirable. in advance of the work space. (Pg.
13: lengths start at 35 feet for
20MPH speed to 485 feet for 65
MPH))
Footnote to the guidelines in Table Contractors that perform work on
VI indicate that distances apply on steep downgrades most likely have
wet and level pavements. Employers referenced the document under
will have to purchase the AASHTO projects covered by DOT
(1990) document (A Policy on regulations. OSHA should be able to
Geometric Design of Highways and include this information in the
Streets, AASHTO) for recommended Federal Register or on the web.
adjustments for the effect of grade
on stopping and variation for
trucks. Also, 6E-6 references the
same AASHTO document (1990), Table
III-2 for ``distance may be
increased for downgrades.'' The
reference to the 1990 document is
outdated. Employers may purchase
AASHTO: A Policy on Geometric
Design of Highways and Streets,
2001. Member Price: $80 or Non
Member Price: $102
Figure 6-12 depicts 14 commonly used Figure VI-7A and VI-7b includes the The additional signs allow greater
regulatory signs. 14 commonly used regulatory signs flexibility.
depicted in 1971 ANSI plus 7
additional signs:
R3-1 (24''x24'') International ....................................
symbol: no right turn
R3-2 (24''x24'') International ....................................
symbol: no left turn
R3-5 (30''x36'') left curve only ....................................
R3-6 (30''x36'') International ....................................
symbol: left lane bear left
R4-7: international symbol with R3-7 (30''x30'') Left lane must turn ....................................
additional plaque that reads Keep left
Right (24''x18'').
R3-8 (30''x30'') Multi-turn left ....................................
lanes
Two of the 14 signs depicted in ANSI ....................................
1971 were modified:
R4-7: additional plaque (24''x18'') ....................................
is no longer required.
R8-3 (24''x30'') ``No Parking'' R8-3 (24''x24'') Letter sign was Sign change.
sign. revised to reflect the
international symbol for no
parking.
6B-8 Road (Street) Closed Sign 6-F.1.a(4): Changed to non-mandatory.
The Road (Street) Closed sign shall The ``shall'' provisions for Road ....................................
be used where the roadway is closed (Street) Closed signs, etc., have
to all traffic except contractors' been changed to ``should.''
equipment * * * and shall be
accompanied by appropriate detour
signing.
6B-10 Weight Limit Signs 6-F.1a.(6): Changed to non-mandatory.
Weight restrictions must be Weight restrictions should be ....................................
consistent with State or local consistent with State or local
regulations * * * regulations. One weight limit sign
(R12-5 (30''x36'') was added for
optional use.
``Flagman 500 Ft'' sign. A Sign changed to international Changed to non-mandatory.
symbol for flagger (48''x48'')--
this sign may be used in
conjunction with other warning
signs.
``Road Work 1 Mile'' sign. This sign is omitted. ....................................
``Road Narrows'' W5-1: 30''x30'' Dimensions changed to 36''x36'' Sign change.
``Narrow Bridge'' W5-2: 30''x30'' Dimensions changed to 36''x36'' Sign change.
``Right Lane Ends'' W9-1: 30''x30'' Dimensions changed to 36''x36'' Sign change.
International symbol signs require International symbol signs no longer Greater flexibility. Reduction in
descriptive plaques: require descriptive plaques: requirements.
(1) W6-1 with plaque: Divided .................................... ....................................
Highway (24''x18'')
(2) W6-2 with plaque: Divided .................................... ....................................
Highway Ends (24''x18'')
(3) W12-2 with plaque: Low Clearance .................................... ....................................
(24''x18'')
(4) W8-5 plaque: Slippery When Wet .................................... ....................................
(24''x18'')
6-F.1 b.(4): Other approach warning Greater flexibility.
signs.
Certain conditions require other ....................................
advance warning signs, such as
limited sight distance or because
an obstruction may require a
motorist to stop. There are no
specified standards for such signs.
The determination of the sign or
signs to be used shall be based on
an engineering study using the
following sections as guidelines.
As an alternative to a specific
distance on these advance warning
signs, the word AHEAD may be used.
Blasting Zone Ahead: W22-1: ....................................
Previously, ``Blasting Zone 1000
ft.'' Turn off Two-way Radios and
Cellular Telephones: W22-2: ``and
Cellular Telephones'' was added.
New signs available for selection: Greater flexibility.
Shoulder Drop Off: W8-9a ....................................
Uneven Lanes: W8-11 ....................................
No Center Strip: W8-12 ....................................

[[Page 57733]]

Lane curves: W1-4bR; W1-4cR ....................................
Bear right: W1-8 ....................................
Signal ahead: W3-3 ....................................
Right lane traffic merging: W4-1; W4- ....................................
3
Lane narrows: W5-2a ....................................
International symbol for ``pavement ....................................
ends'': W8-3a
Truck crossing: W8-6 ....................................
Loose gravel: W8-7 ....................................
Rough road: W8-7 ....................................
Shoulder Drop off: W8-9a ....................................
Be Prepared to Stop: W20-7b ....................................
6F-2. Portable Changeable Message PCMS is most frequently on high-
Signs (PCMS). density, urban freeways.
* * * used most frequently on high- These situations are most likely to
density, urban freeways, * * * or be covered by DOT regulations, and
where highway alignment, traffic thus, not affected by the OSHA
routing problems or other standard.
conditions require advance warning
and information.
6F-3. Arrow Displays. * * * intended The Arrow Displays is an optional
to provide additional warning and means (non-mandatory) for employers
directional information to assist to supplement other traffic control
in merging and controlling traffic devices. It is popular because it
through or around a temporary can be highly mobile (mounted on a
traffic control zone. vehicle, trailer, etc.) and easily
repositioned as the job progresses.
Type A: appropriate for use on low- ....................................
speed urban streets.
Type B: for intermediate-speed ....................................
facilities and for maintenance or
mobile operations on high-speed
roadways.
Type C: used on high-speed, high ....................................
volume traffic control projects.
Arrow display panels shall be
mounted on a vehcile, a trailer, or
other suitable support.
Arrow display shall not be used on a
two-lane, two-way roadway for
temporary one-lane operation.
An arrow display shall not be used
on a multilane roadway to laterally
shift all lanes of traffic, because
unnecessary lane changing may
result.
6F-4. High-level warning device The high level warning device, also
(flag tree). * * * most commonly referred to as the flag tree, is
used in urban high-density traffic another option (non-mandatory) for
situations to warn motorists of employers to use in addition to
short-term operations other traffic control devices.
* * * may supplement other traffic
control devices in temporary
traffic control zones.
* * * shall consist of:
--minimum of two flags with or
without a Type B, high intensity,
flashing warning light.
--distance from the road way to the
bottom of the lens of the light and
to the lowest point of the flay
material shall be no less than 8
feet.
--flags shall be 16 inches square or
larger and shall be orange or
fluorescent versions of orange in
color.
6C-3 Cone Design 6F-5 Channelizing Devices Projects on freeways and high-speed
highways are likely to fall under
DOT regulations, and thus, are
unaffected by the OSHA standard.
These shall be a minimum of 18 6F-5b Cones
inches in height
* * * shall be a minimum of 18
inches-except when used on freeways
and other high-speed highways they
shall be 28 inches in height.
Retroreflection of 28-inch or larger
cones shall be provided by a white
band 6 inches wide, no more than 3
to 4 inches from the top of the
cone, and an additional 4-inch wide
white band a minimum of 2 inches
below the 6-inch band.
6C-5 Vertical Panels Design 6F-5d Vertical Panels Projects on expressways, freeways,
and high-speed highways are likely
to fall under DOT regulations, and
thus, are unaffected by the OSHA
standard.
* * * shall consist of at least one * * * shall be 8 to 12 inches wide *
panel, 6 to 8 inches in width * * * * *
Vertical panels used on expressways,
freeways and other high-speed
roadways shall have a minimum of
270 square inches of retro
reflective area facing traffic.
6C-4 Drum Design 6F-5e Drums Device change.
Drums are normally metal drums, of Drums * * * shall be constructed of
30 to 55 gallon capacity * * * lightweight, flexible, and
deformable materials and be a
minimum of 36 inches in height; and
have at least an 18 inch minimum
width, regardless of orientation.
Steel drums shall not be used.

[[Page 57734]]

6F-8 Other devices Offers greater flexibility. Impact
Attenuators, portable barriers,
etc. are new devices added to
reflect common practices among
highway construction and repair
contractors.
New section added to reflect current
technology.
1. 6F-8a. Impact Attenuators.
2. 6F-8b. Portable Barriers.
3. 6F-8c. Temporary Traffic Signals.
4. 6F-8d. Rumble Strips.
5. 6F-8e. Screens.
6. 6F-8f. Opposing Traffic Lane
Divider.
----------------------------------------------------------------------------------------------------------------

Table 4.--Prices for Traffic Warning Signs and Devices Changed by the 1993 MUTCD Requirements
----------------------------------------------------------------------------------------------------------------
Applicable
Sign/Device Summary of Change Source Price standard
----------------------------------------------------------------------------------------------------------------
`Stop/Slow' Sign Paddle......... 1971 ANSI width Pac Sign Co. (G-hs- $65.00............ 1971 ANSI
requirements were 12). 33.50............. 1993 MUTCD
(at least) 24 John M. Warren,
inches; Changed Inc. (TC1006).
to 18 inches
square in 1993
MUTCD.
`No Parking Any Time'........... Changed to reflect John M. Warren, 12.95............. 1971 ANSI
international Inc. (TS1011).
symbol for No
Parking.
No Parking international symbol, .................. Newman Signs (R7- 12.05............. 1993 MUTCD
without written legend. 31A). 8.47.............. 1993 MUTCD
Newman Signs (R8-
3A).
`No Parking' with international .................. Pac Sign Co. (G-r- 16.00............. 1993 MUTCD
symbol below legend. 101be5). 22.00............. 1993 MUTCD
Pac Sign Co. (G-r-
101ra5).
`Narrow Bridge'; `Right Lane Dimensions changed Pac Sign Co. (G-w5- 59.00............. 1971 ANSI
Ends'; `Road Narrows'. from 30x30 in 2ara22; G-w9-
1971 to 36x36 in 1ra22; G-w5-
1993. 1ra22).
`Right Lane Closed Ahead'....... .................. Pac Sign Co. (G- 90.00............. 1993 MUTCD
w20-5rra27). .................. ..................
Newman Signs (W20- 46.63............. 1993 MUTCD
5R-A).
Reflective Traffic Drum......... 1971 ANSI 1971 ANSI version 45 to 60 when last 1971 ANSI
requirement: no longer available;
metal drums of 30- produced; estimate by sales
55 gallon Northeast Traffic representative.
capacity. Control Company.
1993 MUTCD Bent Manufacturing 68.00............. 1993 MUTCD
requirement: Superdome Drum.
constructed of
lightweight,
flexible, and
deformable
materials,'' 36
inch height
minimum, 18 inch
width minimum.
----------------------------------------------------------------------------------------------------------------
Notes:
Price data were obtained from the following Web sites:
John M. Warren, Inc., Mobile, AL
http://www.johnmwarren.com/item.asp?cat=1&ThisPage=0&maxPage=0&prodID=140
http://parkingsignsbypac.safeshopper.com/501/cat501.htm
http://www.johnmwarren.com/item.asp?cat=2&ThisPage=2&maxPage=2&prodID=290
Newman Signs
http://www.newmansigns.com/
Pac Sign Co., Binghamton, NY
http://parkingsignsbypac.safeshopper.com/226/cat226.htm?239
http://parkingsignsbypac.safeshopper.com/544/cat544.htm?239
http://parkingsignsbypac.safeshopper.com/542/cat542.htm?239
http://parkingsignsbypac.safeshopper.com/383/cat383.htm?239
Bent Manufacturing, Huntington Beach, CA
http://www.bentmfg.com/drums.htm

Table 5.--Data and Calculations for Regulatory Flexibility Analysis
------------------------------------------------------------------------
Data type/Calculation Amount/Result
------------------------------------------------------------------------
Receipts (1,000) \1\................................. $9,807,978
Median return on sales \2\ (in percent).............. 3.00
Estimated profit for 1997............................ $294,239,340
Total employment \1\................................. 42,501
Number of establishments \1\......................... 8,104
Employment per establishment (Total employment 5.24
divided by number of establishments)................

[[Page 57735]]

Receipts per establishment (Receipts divided by $1,210,264
number of establishments)...........................
Profit per establishment (Profit divided by number of $36,308
establishments).....................................
Number of crews per establishment (Employment per 1.31
establishment divided by 4, assuming 4-person crew).
Worst-case one-time cost per crew (from economic $1,648
analysis)...........................................
Total one-time cost per establishment (Worst-case one- $2,161
time cost per crew multiplied by number of crews per
establishment)......................................
Annualization factor (10 year life, 7% interest) \3\. 0.14
Annualized cost per establishment (Total one-time $308
cost per establishment multiplied by annualization
factor).............................................
Cost as a percentage of receipts per establishment 0.03
(Annualized cost per establishment divided by
receipts per establishment).........................
Cost as a percentage of profit per establishment 0.85
(Annualized cost per establishment divided by profit
per establishment)..................................
------------------------------------------------------------------------
Notes:
\1\ Data from the U.S. Bureau of Census, ``Number of Firms, Number of
Establishments, Employment, Annual Payroll, and Receipts by Employment
Size of the Enterprise for the United States, All Industries--
1997,''(http://www.census.gov/csd/susb/susb2.htm#go97) for SIC 1611,
Highway and Street Construction (Enterprises with less than 20
employees).
\2\ Data from Dun and Bradstreet, ``Industry Norms & Key Business
Ratios, 1998-1999,'' for SIC 1611, Highway and Street Construction.
\3\ Annualization factor (Af) computed using the formula following this
footnote.

[GRAPHIC] [TIFF OMITTED] TR12SE02.000

where i is the interest rate and n is the useful life of the
equipment.

Response to Comments Related to Regulatory Analysis

Comments received from the National Association of Home Builders
(NAHB), the National Electrical Contractors Association (NECA) and the
South Carolina Department of Transportation (SCDOT) confirm the
existence of situations where: (1) federal funds for road construction
are not used and (2) state regulations do not mandate adherence to the
Millennium version of the MUTCD. OSHA's economic analysis both
acknowledged and estimated the degree to which these situations are
likely to occur. The comments did not challenge OSHA's estimates. Thus,
comments received do not substantively affect the original economic
analysis.
Both NAHB and NECA raised the concern that the original date of
compliance could lead to a shortage of traffic control devices. Since
the overwhelming majority of job sites are already required to comply
with Millennium version of the MUTCD, the devices are widely available.
In fact, OSHA's research indicated that devices used to comply with the
1971 MUTCD often are no longer manufactured. Thus, for some devices,
compliance with the Millennium edition is much easier than compliance
with the 1971 edition of the MUTCD.
Other comments also centered around August 2002 deadline for
implementation. NECA suggests that such an immediate deadline could
create a burden by disrupting contracts and work already in progress,
since the new requirements may not have been incorporated. OSHA has
addressed these concerns directly by extending the effective date.
Postponement of the effective date will ensure that the cost of
complying with the standard (which OSHA has estimated to be quite
small) will be even smaller.
In sum, the conclusion of OSHA's original regulatory analysis
remains. The cost of complying with the standard will not represent a
significant impact on small or large firms. This conclusion holds even
in the unlikely case where the costs come entirely in the form of a
decline in profits. In many cases, firms will be able to pass on at
least some of the costs, further reducing the regulatory burden.
Moreover, any costs attributable to the standard are short run in
nature. As old contracts expire, new contracts will incorporate the
costs of the new standard directly.

Unfunded Mandates

This final rule, which amends Subpart G--Signs, Signals, and
Barricades (29 CFR 1926.200(g)(2), 201(a), 202 and 203) has been
reviewed in accordance with the Unfunded Mandates Reform Act of 1995
(UMRA) (2 U.S.C. 1501 et seq.). For the purposes of the UMRA, the
Agency certifies that this final rule does not impose any Federal
mandate that may result in increased expenditures by State, local, or
tribal governments, or increased expenditures by the private sector, of
more than $100 million in any year.

Federalism

OSHA has reviewed this final rule in accordance with the Executive
Order on Federalism (Executive Order 13132, 64 FR 43255, August 10,
1999), which requires that agencies, to the extent possible, refrain
from limiting State policy options, consult with States prior to taking
any actions that would restrict State policy options, and take such
actions only when there is clear constitutional authority and the
presence of a problem of national scope. The Order provides for
preemption of State law only if there is a clear Congressional intent
for the Agency to do so. Any such preemption is to be limited to the
extent possible.
Section 18 of the Occupational Safety and Health (OSH) Act (29
U.S.C. 651 et seq.) expresses Congress' intent to preempt State laws
where OSHA has promulgated occupational safety and health standards.
Under the OSH Act, a State can avoid preemption on issues covered by
Federal standards only if it submits, and obtains Federal approval of,
a plan for the development of such standards and their enforcement. 29
U.S.C. 667. Occupational safety and health standards developed by such
Plan States must, among other things, be at least as effective in
providing safe and healthful employment and places of employment as the
Federal standards. Subject to these requirements, State-Plan States are
free to develop and enforce their own requirements for road-
construction safety.
Although Congress has expressed a clear intent for OSHA standards
to preempt State job safety and health rules in areas involving the
safety and health of road-construction workers, this final rule has
only a minimum impact on the states. DOT requires compliance with the
MUTCD for ``application on any highway project in which Federal highway
funds participate and on projects in federally administered areas where
a Federal department or agency controls the highway or supervises the
traffic operations.'' 23 CFR 655.603(a). For this work, which
represents the majority of road construction work in every State, all
States must require compliance with the current edition of the MUTCD or
another manual that substantially conforms to the current edition.
States

[[Page 57736]]

have been required to enforce Revision 3 or their own substantially
conforming manual since 1994. DOT regulations allow States until
January 2003 to adopt the Millennium Edition, or another manual that
substantially conforms to the Millennium Edition. See 23 CFR
655.603(b). In addition, States must have highway safety programs that
are approved by the Secretary of Transportation, even for roads that do
not receive Federal aid. The Secretary is directed to promulgate
guidelines for establishing these programs. 23 U.S.C. 402(a). Those
guidelines state, inter alia, that programs should conform with the
current edition of the MUTCD. Accordingly, most States require
compliance with the latest edition of the MUTCD even on roads that
receive no Federal funding. The requirements described in this document
are new requirements only for the very small percentage of employers
that are not already covered by the DOT regulations or corresponding
State requirements. Therefore, the required state plan adoption of the
provisions of Revision 3 or the Millennium Edition or an equivalent
standard will also effectively impose a new regulation only on that
extremely small percentage of employers. (See economic analysis) OSHA
concludes that this action does not have a significant impact on the
states.

State Plan Standards

The 26 States or territories with OSHA-approved occupational safety
and health plans must adopt an equivalent amendment or one that is at
least as protective for employees within six months of the publication
date of this final standard. These states are: Alaska, Arizona,
California, Connecticut (for State and local government employees
only), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota,
Nevada, New Mexico, New Jersey (for State and local government
employees only), New York (for State and local government employees
only), North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee,
Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming.

Paperwork Reduction Act

This action does not impose new information collection requirements
for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-30.

List of Subjects in CFR Part 29

Incorporation by reference, MUTCD, Occupational Safety and Health,
Traffic control devices.

Authority and Signature

This document was prepared under the direction of John Henshaw,
Assistant Secretary of Labor for Occupational Safety and Health, 200
Constitution Avenue, NW., Washington, DC 20210.
This action is taken pursuant to sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657),
section 4 of the Administrative Procedure Act (5 U.S.C. 553), section
107 of the Contract Work Hours and Safety Standards Act (Construction
Safety Act), 40 U.S.C. 333, Secretary of Labor's Order No. 3-2000 (65
FR 50017), and 29 CFR part 1911.

Signed at Washington, DC, this 6 day of September, 2002.
John Henshaw,
Assistant Secretary of Labor.
Part 1926 of Title 29 of the Code of Federal Regulations is hereby
amended as set forth below:

PART 1926 B--[AMENDED]

1. The authority citation for Subpart G of Part 1926 is revised to
read as follows:

Authority: Sec. 107, Contract Work Hours and Safety Standards
Act (Construction Safety Act) (40 U.S.C. 333); sections 4, 6, 8,
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), or 3-2000 (65 FR 50017) as applicable,
29 CFR part 1911.

Subpart G--[Amended]

2. Paragraph (g)(2) of Sec. 1926.200 is revised to read as
follows:

Sec. 1926.200 Accident prevention signs and tags.

* * * * *
(g) * * *
(2) All traffic control signs or devices used for protection of
construction workers shall conform to Part VI of the Manual of Uniform
Traffic Control Devices (AMUTCD''), 1988 Edition, Revision 3, September
3, 1993, FHWA-SA-94-027 or Part VI of the Manual on Uniform Traffic
Control Devices, Millennium Edition, December 2000, FHWA, which are
incorporated by reference. The Director of the Federal Register
approves this incorporation by reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. You may obtain a copy of the Millennium
Edition from the following organizations: American Traffic Safety
Services Association, 15 Riverside Parkway, Suite 100, Fredericksburg,
VA 22406-1022; Telephone: 1-800-231-3475; FAX: (540) 368-1722;
www.atssa.com; Institute of Transportation Engineers, 1099 14th Street,
NW., Suite 300 West, Washington, DC 20005-3438; FAX: (202) 289-7722;
www.ite.org; and American Association of State Highway and
Transportation Officials; www.aashto.org; Telephone: 1-800-231-3475;
FAX: 1-800-525-5562. Electronic copies of the MUTCD 2000 are available
for downloading at http://mutcd.fhwa.dot.gov/kno-millennium. Electronic
copies of the 1988 Edition MUTCD, Revision 3, are available for
downloading at http://www.osha.gov/doc/highway_workzones. Both
documents are available for inspection at the OSHA Docket Office, Room
N2625, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210 or at the Office of the Federal Register, 800
North Capitol Street, NW., Suite 700, Washington, DC.
* * * * *
3. Paragraph (a) of Sec. 1926.201 is revised to read as follows:

Sec. 1926.201 Signaling.

(a) Flaggers. Signaling by flaggers and the use of flaggers,
including warning garments worn by flaggers shall conform to Part VI of
the Manual on Uniform Traffic Control Devices, (1988 Edition, Revision
3 or the Millennium Edition), which are incorporated by reference in
Sec. 1926.200(g)(2).
* * * * *
4. Section 1926.202 is revised to read as follows:

Sec. 1926.202 Barricades.

Barricades for protection of employees shall conform to Part VI of
the Manual on Uniform Traffic Control Devices (1988 Edition, Revision 3
or Millennium Edition), which are incorporated by reference in Sec.
1926.200(g)(2).
5. Paragraph (c) of Sec. 1926.203 is revised to read as follows:
1926.203 Definitions applicable to this subpart.
* * * * *
(c) Signals are moving signs, provided by workers, such as
flaggers, or by devices, such as flashing lights, to warn of possible
or existing hazards.
* * * * *
[FR Doc. 02-23142 Filed 9-11-02; 8:45 am]
BILLING CODE 4510-26-P