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Traffic Incident Management Quick Clearance Laws:
A National Review of Best Practices

Authority Removal Laws

At the time of this investigation, approximately half of all U.S. States enacted Authority Removal laws. In contrast to Driver Removal laws, Authority Removal laws provide authorization to a pre-designated set of public agencies - generally including State, county, and local law enforcement or State departments of transportation (DOTs) - to remove damaged or disabled vehicles and/or spilled cargo from the roadway that is determined to be a hazard. Driver and authority removal responsibilities are often defined within the same statute: if the driver is unwilling or unable to remove the vehicle or cargo, designated authorities may require or perform removal without consent of the owner. Authority Removal laws consistently promote the expedited removal of damaged or disabled vehicles and/or spilled cargo from the roadway that are determined to be a hazard, but vary significantly in the specific provisions defining where, when, and under what conditions these laws apply.

A review of the purpose and intent, model language, observed content trends and anomalies, and implementation challenges and resolutions for Authority Removal laws is provided below. As appropriate, excerpts from model law and State Authority Removal legislation are included.

Purpose and Intent

Often, legislators originally enacted Authority Removal laws, and associated Hold Harmless laws, to ensure adequate accessibility to the roadway infrastructure or appurtenances for transportation agencies when performing roadside construction and maintenance duties and for emergency response vehicles en-route to an emergency. Safety implications of damaged or disabled vehicles and/or spilled cargo on the roadway were of concern only if travel lanes were sufficiently obstructed.

More recently, Authority Removal laws have become important strategies for reducing incident-related congestion and delay. Also, the scope of removal authority has expanded to generally include not only obstructions in the travel lanes but also vehicles and/or cargo on the shoulder or in the roadway right-of-way in recognition of the potential safety hazards.

Hence, the primary intent of Authority Removal laws has become largely synonymous with that of Driver Removal laws - to expedite removal of damaged or disabled vehicles from the travel lanes to enhance the overall level of safety on the roadway and reduce associated congestion and delay.

Model Language

Section 8 of the Incident Responders' Safety Model Law also includes model Authority Removal law language in addition to the model language for Driver Removal laws previously presented. This section provides responders with the authority to move or order the removal of a vehicle from the roadway and provides the authority to a law-enforcement officer or the Incident Commander to remove vehicles from the highway at the owner's expense if the driver is unwilling or unable to do so.

Section 8. Avoidance of Lane Blockage – Expedited Removal of Vehicles
  1. A responder to an incident may move a vehicle remaining on the roadway, or require the driver or other person in charge of the vehicle to move it to the shoulder or a designated area off the highway.
  2. A law-enforcement officer or the incident commander may order the removal of any vehicle remaining on the highway at the owner's expense. The vehicle's location shall be reported to the nearest law-enforcement agency as soon as practicable.

Additional guidance related to Authority Removal laws is provided in Section 5 and Section 6 of the Incident Responders' Safety Model Law. Section 5 provides liability protection to responding agencies and their personnel when incident clearance functions are exercised with reasonable care at the direction of the Incident Commander.

Section 5 Liability Protection for Authorized Incident Clearance Functions

  1. Governmental agencies responding to incidents, including but not limited to law enforcement, firefighting, emergency medical services, hazardous materials, transportation agencies and other emergency governmental responders are authorized to exercise the incident clearance functions enumerated in this section. If such functions are exercised with reasonable care and at the direction of the incident commander, those governmental agencies and their personnel and other designated representatives are insulated from liability resulting from such actions taken pursuant to incident clearance, including:
    • Incident detection and verification;
    • Incident area security and protection;
    • Rescue of persons from vehicles and hazardous environments;
    • Emergency medical transportation and care;
    • Hazardous materials response and containment;
    • Fire suppression and elimination;
    • Transportation of vehicle occupants;
    • Traffic direction and management, and establishment and operation of alternate routes, including but not limited to traffic detours and/or diversion;
    • Crash investigation;
    • Dissemination of traveler information;
    • Incident clearance, including removal of debris, coordination of clearance and repair resources, and temporary roadway repair and facilities restoration;
    • Removal of vehicles and cargo;
    • Any other actions reasonably necessary.
  2. When directed by the incident commander, towing and recovery service providers are authorized to perform the following enumerated functions, and any other actions reasonably necessary to perform those enumerated functions;
    • Removal of vehicles from the incident area;
    • Protection of property and vehicles;
    • Removal of debris from the roadway;
    • Transportation of persons or cargo.

Section 6 assigns the costs associated with incident removal to the vehicle or cargo owner(s).

Section 6. Compensation for Incident Removal Costs

Notwithstanding any other law or regulation, any agency, person or organization incurring the cost of removing vehicles and/or cargo at an incident, if such removal is authorized by the traffic incident commander, shall have the unqualified right to compensation for the cost of such removal from the owner (or owners) of:
  • the vehicles removed; and/or
  • the vehicles whose cargo was removed in whole or in part.

Content Trends and Anomalies

Common to nearly all of the Authority Removal laws enacted in each State is the general objective of expedited removal of damaged or disabled vehicles and/or spilled cargo from the roadway that are determined to be a hazard. Despite this commonality, specific provisions defined in each law vary significantly between States irrespective of efforts to encourage uniformity. Distinctive provisions contained in Authority Removal laws relate to:

Specific examples of commonalities and differences in provisions are provided below. In many instances, the same observations described previously for Driver Removal laws can be made for Authority Removal laws since related provisions are oftentimes contained within the same statute. Note that the examples provided below reflect a subset of existing Authority Removal laws. Much of the statutory language is consistent between States. Where differences do exist, individual examples were included to reflect a broader set of State laws. In the interest of brevity, few State laws are included in their entirety; language not directly related to Quick Clearance operations is excluded.

Applicable Roadway Facility and Affected Features

Similar to Driver Removal laws, Authority Removal laws are typically limited to incidents occurring on high-speed, limited access roadways and affecting the mainline, median, and ramp areas. Some States have expanded applicability to include also shoulders and adjacent areas. Consider the following examples.

State Authority Removal laws are typically limited to:

State Authority Removal laws may apply to crashes that occur:

Authority Removal laws that apply to damaged or disabled vehicles anywhere within the highway right-of-way offer the greatest potential for benefit. In this case, law language recognizes that vehicles on the shoulder or median still pose a significant safety risk and reduce roadway capacity although no physical blockage of a travel lane is occurring.

Authority Removal laws applicable only to metropolitan areas (i.e., counties having a population of 500,000 or more) also limit the potential for safety benefit. As noted previously, longer incident response times and the lack of congestion-related early warning of a downstream incident in rural areas often leads to an increased risk for secondary incidents that may be more severe than those occurring in metropolitan areas. Statewide consistency also simplifies driver understanding and enforcement.

Applicable Incident Types

Similar to Driver Removal laws, Authority Removal law provisions consider incident severity and hazardous material involvement. Unique to Authority Removal laws, removal provisions may vary depending on whether the vehicle and/or cargo is attended or unattended (i.e., abandoned). Consider the following examples.

State Authority Removal laws apply if:

Note that unlike most Driver Removal law provisions, the occurrence of a serious injury or fatality does not preclude designated authorities from removing damaged or disabled vehicles or spilled cargo from the roadway. Instead, removal activities are qualified to ensure that required medical assistance, fire supervision, and/or crash investigation has been completed.

Regarding unattended or abandoned vehicles within the right-of-way, States that provide separate legislation typically allow abandoned vehicles to remain in the right-of-way in excess of 24 hours and up to 72 hours. Results of a 2004 ITS Deployment Survey (http://www.itsdeployment.its.dot.gov) indicated that 47 percent of participating metropolitan areas allow abandoned vehicles to remain in the right-of-way for more than 24 hours. These laws typically allow law enforcement to expedite removal of abandoned vehicles if deemed a hazard. Given the similar risk for being struck by passing motorists, legislation that does not distinguish removal actions for attended or unattended (abandoned) vehicles – as presented here – are most consistent with Quick Clearance objectives and may simplify both driver understanding and enforcement actions.

Determination of Hazard

Many State Authority Removal laws do not explicitly define a "hazard"; instead, determination is left to responder discretion. A second or additional criterion for initiating vehicle and/or cargo removal relates to traffic obstruction. Consider the following examples.

State Authority Removal laws apply when vehicle and/or cargo:

Oregon provides the most explicit and comprehensive description of the conditions that constitute a "hazard" or "obstruction":

Oregon §819.120. (1)…a vehicle that is disabled, abandoned, parked or left standing unattended on a road or highway right of way and that is in such a location as to constitute a hazard or obstruction to motor vehicle traffic using the road or highway. (2) As used in this section, a "hazard or obstruction" includes, but is not necessarily limited to: (a) Any vehicle that is parked so that any part of the vehicle extends within the paved portion of the travel lane. (b) Any vehicle that is parked so that any part of the vehicle extends within the highway shoulder or bicycle lane: (A) Of any freeway within the city limits of any city in this state at any time if the vehicle has a gross vehicle weight of 26,000 pounds or less; (B) Of any freeway within the city limits of any city in this state during the hours of 7 a.m. to 9 a.m. and 4 p.m. to 6 p.m. if the vehicle has a gross vehicle weight of more than 26,000 pounds; (C) Of any freeway within 1,000 feet of the area where a freeway exit or entrance ramp meets the freeway; or (D) Of any highway during or into the period between sunset and sunrise if the vehicle presents a clear danger.

More explicit laws are easier for drivers to understand and for law enforcement to enforce. Vague definitions of "hazard" may lead to public resistance and complaints if drivers feel their vehicles and/or cargo were unnecessarily removed by designated authorities, particularly if the vehicle and/or cargo owners incur a cost for their removal.

Removal Authority

In the observed legislation - and distinct from Driver Removal laws described previously in this report - Authority Removal laws often specify who has the authority to remove incident-involved vehicles and/or cargo. Approximately half of State Authority Removal laws limit vehicle and/or cargo removal authority to law enforcement agencies; the remainder expands authority to also include State departments of transportation (DOTs). Consider the following examples.

State Authority Removal laws require that the vehicle and/or cargo be moved by:

With transportation departments assuming a more active role in operating their roadways and associated traffic incident management activities, Authority Removal laws that include transportation personnel in the purview of authority for removing damage or disabled vehicles and spilled cargo is beneficial. With joint authority for vehicle and/or cargo removal, law enforcement personnel may focus on performing duties for which they are uniquely authorized and trained (i.e., citation issuance, crash investigation).

Removal Location

Authority Removal laws focus on expediting the removal of damaged or disabled vehicles and spilled cargo from the travel lanes and immediate incident scene to a safe refuge in the same vicinity (e.g., adjacent frontage road). Commonly, Authority Removal laws specify a position off the paved or improved roadway but some States are more restrictive in the distance that an incident-involved vehicle or cargo can be moved. Consider the following examples.

State Authority Removal laws require vehicles and/or cargo to be moved to:

Often distinguished as Authority Tow laws because of the greater distance permitted for removal, related legislation allows vehicles and/or cargo to be moved to:

Recommended locations further removed from the travel lanes provide a greater level of safety for involved and approaching motorists and responders. States that have included provisions in their Authority Removal laws that limit the distance that incident-involved vehicles can be moved from the original site of the incident also limit the potential for safety- and delay-related benefit.

Commercial Motor Vehicle Involvement

Select Authority Removal laws include unique provisions related to commercial motor vehicle and/or cargo removal and relocation. Consider the following examples.

If the incident involves a commercial motor vehicle, State Authority Removal laws:

Regarding the first example, the intended language protects against public agency personnel attempts to remove heavy vehicles that may result in excessive damage to lighter-duty public agency equipment, excessive damage to the involved vehicle and/or cargo, and unnecessary incident clearance delay.

Provisions related to the vehicle/cargo owner's ability to request their towing company of choice may suggest some early resistance to the Authority Removal legislation originating from the commercial vehicle industry. Private industry has an inherent salvageable interest in preserving the condition of their vehicles and/or cargo involved in an incident. Authority Removal laws may be resisted by private industry if viewed as detrimental to the recovery of vehicles and cargo (i.e., if the removal process would result in significantly more damage to the vehicle and/or cargo). Existing language may reflect a compromise with trucking industry leaders.

Crash Investigation

To enable law enforcement personnel to adequately investigate crashes when warranted, select Authority Removal laws include language that delays removal activities until crash investigation procedures are complete. Consider the following examples.

State Authority Removal laws require:

To preserve the goals of Quick Clearance, these provisions are typically limited to incidents involving serious injury or fatalities.

Post-removal Vehicle and/or Cargo Handling

Oftentimes, authorities are reluctant to assume responsibility for incident-involved vehicles and/or cargo because of costs associated with removing, storing, and disposing of unclaimed property. Select Authority Removal laws attempt to assign these costs to the vehicle/cargo owner(s). Other State legislation specifies no cost to the owner(s) for removal services. Consider the following examples.

The removal of vehicles and/or cargo under State Authority Removal laws may result in:

Note that select State Authority Removal laws qualify potential costs incurred by the vehicle/cargo owner(s) as "reasonable." The term "reasonable" is not readily defined and may challenge the resolution of disputes arising between vehicle/cargo owner(s) and public agencies intending to recover incident removal costs. Omission of this qualifying term may minimize the ability of vehicle/cargo owners to dispute costs and the need for public agencies to defend costs.

Hold Harmless Clause

Similar to Driver Removal laws, concurrent legislation or language that protects responders from liability resulting from their actions (in the absence of gross negligence) is often included with Authority Removal laws to encourage responders to expeditiously move damaged or disabled vehicles and/or spilled cargo from the roadway. The same pre-designated agencies authorized to remove damaged or disabled vehicles and/or spilled cargo from the roadway, as well as any qualified responder working under the direction of these agencies, are generally protected under Hold Harmless laws. Consider the following examples.

Under State Authority Removal laws:

Alternative to the Hold Harmless clauses focused on protecting against liability claims for responder actions taken, some States include Hold Harmless clauses that also protect against liability for responder actions not taken:

Approximately, half of all U.S. States that have Authority Removal laws in place, have concurrent Hold Harmless provisions. When disputes arise, the challenge lies in defining "reasonable efforts," "reasonable care," and even "gross negligence" when characterizing responder vehicle/cargo removal actions.

Implementation Challenges and Resolutions

Noted implementation challenges or shortcomings when introducing and enacting Authority Removal laws include the following:

Each of these challenges or shortcomings is described below, with potential associated strategies for response.

Application May Be Limited to Metropolitan Areas

Similar to certain Driver Removal laws, Authority Removal laws may also be limited to metropolitan areas, implemented with the intent reducing incident-related congestion and delay. Potential safety benefits attributable to Authority Removal laws – namely the reduced likelihood of secondary incidents involving responders and/or approaching motorists - suggest an equal or potentially greater benefit in non-urban, rural areas.

Response

State Authority Removal laws that exclude the limiting language should be considered as "model legislation." These States include Arizona, Georgia, Ohio, Tennessee, and Texas. Enforcement-related benefits resulting from Statewide consistency can be presented as the basis for introducing inclusive original or expanding current legislation. Demonstrated, united support from law enforcement and transportation agencies can significantly assist in advancing the legislation.

Vehicles on the Shoulder Are Not Considered a Hazard

Affecting both removal initiation and removal location, Authority Removal laws often exclude vehicles on the mainline shoulder under the purview of the law (i.e., vehicles on the shoulder are not authorized to be removed) and recommend the mainline shoulder as a "safe" removal location for incident-involved vehicles. Vehicles on the shoulder still pose a significant safety risk for responders, involved motorists, and approaching motorists. They reduce roadway capacity although no physical blockage of a travel lane is occurring.

Response

State Authority Removal laws that explicitly include vehicles on the mainline shoulder or median (Washington) or more broadly apply "anywhere within the highway right-of-way" (Colorado, Texas, and Virginia) and recommend locations further removed from the travel lanes (Washington) should be considered as "model legislation." Authority Removal laws that require authorities to move vehicles/cargo "any place within the immediate vicinity" (Tennessee) are not recommended.

Again, safety-related statistics related to damaged, disabled, or abandoned vehicles on the shoulder or median can be presented as the basis for recommending further removed locations. For example, in 2005 North Carolina completed a five-year study of abandoned vehicle crash involvement found that a total of 1,300 abandoned vehicles were struck, resulting in 47 fatality crashes and over 500 injuries (I-95 Corridor Coalition 2007). In the same year but on a national level, an estimated 500 fatalities were reported by NHTSA resulting from multiple vehicle incidents occurring on the roadway shoulder and median, respectively (300 fatalities on the shoulder and 200 fatalities on the median). Perhaps more compelling than National or State-level statistics, and proven effective in proliferating Move Over laws, local examples of responder or motorist tragedy can be cited as a motivating factor in the successful development of Authority Removal legislation with provisions for off-site relocation.

Application May Be Limited to Attended Vehicles

Presumably motivated by public resistance to Quick Clearance actions and potential resulting costs incurred for removal, a number of Authority Removal laws limit response actions to attended vehicles. Unattended (abandoned) vehicles pose the same safety risk as attended vehicles but - unless they are recognized as a hazard - may be allowed to remain on the shoulder from between 4 to 72 hours under related Abandoned Vehicle laws.

Response

State Authority Removal laws that allow removal of unattended or abandoned vehicles directly (i.e., the Authority Removal law applies to both attended and unattended vehicles) or that allow for their removal based on authority discretion (i.e., "if deemed to be a hazard") and/or traffic obstruction should be considered as "model legislation." Examples include Colorado and Georgia and Kentucky, North Carolina, Oregon, Tennessee, Texas, and Virginia, respectively.

Towing and recovery industry partners – who may be tasked with removing, storing, and disposing of unattended vehicles and/or cargo – are key constituents when developing and enacting related legislation. Working with towing and recovery industry partners to address cooperatively concerns related to public resistance, storage capacity, disposal costs, etc. will lead to a more successful and effective Authority Removal law and better relations between transportation, law enforcement, and private industry partners.

Removal Authority May Not Include Applicable Responder Types

Transportation and law enforcement agencies are challenged to meet increasing traffic incident management demands in the context of their other duties and responsibilities. Rapid response to incidents, particularly minor incidents, is often precluded by competing personnel priorities and demands and extended travel times resulting from congested roadways. Joint removal authority for both law enforcement and transportation personnel helps to ensure that the incident can be quickly cleared by the first arriving responder; removal authority reserved for law enforcement personnel only can unnecessarily extend the duration of an incident.

Response

With transportation departments assuming a more active role in operating their roadways and associated traffic incident management activities, Authority Removal laws that include transportation personnel in the purview of authority for removing damage or disabled vehicles and spilled cargo should be considered as "model legislation." These States include Arizona, California, Florida, Illinois, Missouri, New Mexico, Oregon, South Carolina, Tennessee, Texas, and Washington.

Demonstrated, united support from law enforcement and transportation agencies can significantly assist in advancing the legislation. As a result of joint authority for vehicle and/or cargo removal, law enforcement personnel may focus on performing duties for which they are uniquely authorized and trained (i.e., citation issuance, crash investigation).

Removal Authority May Not Include Applicable Vehicle/Cargo Types

Affecting both the authority to remove damaged or disabled vehicles and/or spilled cargo and the protection against liability when performing such actions, historical evidence was uncovered that challenges the broader goals of Quick Clearance. Original legislation in Colorado (then §42-4-1603, currently §42-4-1803) states that: "the Colorado State Patrol, sheriffs, under-sheriffs, police officers, marshals, and agents of the Colorado Bureau of Investigation have the authority to remove motor vehicles from the highway right-of-way." The term "motor vehicle" was defined and later interpreted as "any self-propelled vehicle which is designed primarily for travel on the public highway and which is generally and commonly used to transport persons and property over the public highways…" Under this definition, law enforcement personnel were not authorized to remove non-motorized vehicles, trailers, cargo, or debris associated with an incident.

Response

Continuing with this same example, Colorado legislation has since been modified to overcome the removal and liability limitation contained in the original statute as follows:

Colorado §42-4-1803. (2) Whenever any sheriff, under-sheriff, deputy sheriff, police officer, marshal, Colorado state patrol officer, agent of the Colorado bureau of investigation, or agency employee finds a motor vehicle, vehicle, cargo, or debris, attended or unattended, standing upon any portion of a highway right-of-way in such a manner as to constitute an obstruction to traffic or proper highway maintenance…

This revision enhances both the potential for safety- and delay-related benefits attributable to Authority Removal laws and the protection against liability afforded by law enforcement personnel acting in good faith to restore the flow of traffic.

Private Industry Interests in Preserving Vehicle/Cargo Integrity

Private industry has an inherent salvageable interest in preserving the condition of their vehicles and/or cargo involved in an incident. Authority Removal laws may be resisted by private industry if viewed as detrimental to the recovery of vehicles and cargo (i.e., if the removal process would result in significantly more damage to the vehicle and/or cargo).

Carriers generally prefer to use their own towing companies and to wait for on-scene response from their insurance investigators. Even if the cargo is unsalvageable, anything that may impede proper incident investigation and documentation may threaten the carriers' ability to recover losses through insurance claims. Some insurance companies will not honor claims for vehicles or cargo that have been moved prior to arrival of investigators. As a result, the American Trucking Association (ATA) has a policy against towing without the owner's consent and/or using towers that the owner has not chosen (NTIMC 2006).

Response

In some instances, Authority Removal laws reflect a noted compromise with private industry. For example, Authority Removal laws in both Missouri and Tennessee allow the owner or designated representative of the commercial motor vehicle a reasonable opportunity to contact a towing company of choice. Where private industry resistance is anticipated, Authority Removal laws in each of these States should be considered as "model Legislation."

December 2008
FHWA-HOP-09-005

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