E6-21228. Traffic Control Devices on Federal-Aid and Other Streets and Highways; Standards

AGENCY:

Federal Highway Administration (FHWA), DOT.

ACTION:

Final rule.

SUMMARY:

The FHWA is revising its regulation that prescribes procedures for obtaining basic uniformity of traffic control devices on Federal-aid and other streets and highways. This final rule makes some nomenclature changes, removes outdated references, and provides clarification on the meaning of roads “open to public travel” and “substantial conformance.”

DATES:

Effective January 16, 2007.

FOR FURTHER INFORMATION CONTACT:

Mr. Hari Kalla, Office of Transportation Operations, [phone], or Mr. Raymond Cuprill, Office of the Chief Counsel, [phone], U.S. Department of Transportation, Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

This document, the notice of proposed rulemaking (NPRM), and all of the comments received may be viewed online through the Document Management System (DMS) at http://dms.dot.gov. The DMS is available 24 hours each day, 365 days each year. Electronic submission and retrieval help and guidelines are available under the help section of the Web site.

An electronic copy of this document may also be downloaded by accessing the Office of the Federal Register's home page at http://www.archives.gov or the Government Printing Office's Web page at http://www.gpoaccess.gov/​nara. An electronic version of this document may also be downloaded at the FHWA Web site: http://mutcd.fhwa.dot.gov.

Background

The Manual on Uniform Traffic Control Devices (MUTCD), also referred to as the Manual, is developed and approved by the Federal Highway Administration and recognized as the national standard for all traffic control devices installed on any street, highway, or shared-use path open to public travel in accordance with 23 U.S.C. 109(d) and 402(a). It is incorporated by reference into the Code of Federal Regulations at 23 CFR part 655. The FHWA proposed a number of changes to 23 CFR 655 in order to update its regulations. The FHWA proposed removing certain outdated references, making certain nomenclature changes, and providing clarification of certain terms.

Discussion of Comments Received to the Notice of Proposed Rulemaking (NPRM)

On April 25, 2006, the FHWA published a NPRM in the Federal Register at 71 FR 23877 to provide an opportunity for public comment on the proposed changes to 23 CFR part 655. In response to the NPRM, the FHWA received comments to the docket from 20 entities, including 4 national associations, 8 State transportation agencies (California, Maryland, Michigan, North Carolina, Ohio, Oregon, Washington, and Minnesota), 2 city transportation agencies (City of Phoenix and City of Tucson), 1 private company (KDD and Associates), and 4 private individuals. The national associations included the American Association of State Highway and Transportation Officials (AASHTO), the Advocates for Highway and Auto Safety (AHAS), the American Traffic Safety Services Association (ATSSA), and the National Committee on Uniform Traffic Control Devices (NCUTCD). One of the 20 docket submissions was a request from the NCUTCD for a time extension of the docket comment period. In response to this request, on June 14, 2006, the FHWA published a notice in the Federal Register at 71 FR 34297 to extend the comment closing date from June 26, 2006, to July 21, 2006.

While four of the docket submissions addressed all of the proposed changes, the majority of the letters to the docket addressed specific proposed changes. The FHWA considered each of these comments in adopting this final rule. These issues are identified and addressed under the appropriate section below.

Section-by-Section Discussion of Changes

Section 655.601 Purpose

The FHWA is removing the reference to the Standard Alphabets for Highway Signs (SAHS) by removing paragraph (b). The SAHS, 1966 Edition, is outdated and no longer exists as a separate document. The FHWA now publishes the SAHS as part of the Standard Highway Signs (SHS) Book. The SHS Book is referenced in MUTCD Section 1A.11 and throughout MUTCD Part 2. The SHS Book is also posted on the MUTCD Web page at http://mutcd.fhwa.dot.gov. The FHWA received five comments in support of this change and no comments opposed. This change will be adopted without modification in the final rule.

Section 655.603 Standards

“Open to Public Travel”

The FHWA is revising the language in 23 CFR 655.603(a) to clarify that, for the purpose of MUTCD applicability, the phrase “open to public travel” includes toll roads and roads within shopping centers, parking lots, airports, sports arenas, and other similar business and recreation facilities that are privately owned but where the public is allowed to travel without access restrictions. Military bases and other gated properties where access is restricted and private railroad grade crossings are not included in the term “open to public travel.”

Eleven comments generally supported this clarification but offered potential areas of concern for consideration by the FHWA, and one comment opposed this clarification. Based on the comments received, the FHWA has modified the clarification to include parking lots on the list of examples where the term “open to public travel” applies, and to include military bases and other gated properties as examples of what is not included in the term. We have also indicated that the clarification of “open to public travel” is for the purpose of MUTCD applicability only. It is important to note that FHWA's intent is only to provide some general examples of what is meant by “open to public travel” because we recognize that it would not be possible to list them all.

Of the 11 docket comments in support of this clarification, some expressed the following concerns: (1) This could create an unreasonable State responsibility to mandate compliance without the necessary authority; (2) Without enforcement, the intent of this change would be undermined; (3) It is not reasonable to expect all private property owners to have the means and expertise to place and maintain standard traffic control devices; and (4) The language needs to consider State law.

The FHWA does not believe it is necessary for State and/or local highway agencies to have specific authority or enforcement responsibility for traffic control devices on private roads. This change to 23 CFR part 655 does not require State or local agencies to police the private properties open to public travel to ensure compliance with the MUTCD. However, this change does make it clear that private roads open to public travel are subject to the same traffic control standards as public streets and highways. Therefore, owners or parties responsible for such private roads are encouraged to bring the traffic control devices into compliance with the MUTCD and other applicable State Manuals.

The FHWA believes that the change to 23 CFR 655.603(a) will clarify the application of this term, create awareness of the applicability of the MUTCD to certain private properties, improve safety, and increase the uniformity of traffic control devices on roads used by the general public.

“Substantial Conformance”

23 CFR 655.603(b)(1) provides that where State or other Federal agency MUTCDs or supplements are required, they shall be in “substantial conformance” with the National MUTCD as approved by the FHWA Division Administrator. The FHWA proposed to define “substantial conformance” to mean that the State MUTCD or supplement shall conform as a minimum to the standard statements included in the National MUTCD. Standard statements in the MUTCD describe required practices and are indicated by the term “shall.” The FHWA also proposed to define “substantial conformance” to mean that the guidance statements contained in the National MUTCD also are expected to be in the State Manual or supplement unless the reason for not including it is satisfactorily explained based on engineering judgment or a documented engineering study. Guidance statements in the MUTCD describe recommended practices and are indicated by the term “should.” Under the proposed definition, a State Manual or supplement could not be less prescriptive than the MUTCD but it could be more prescriptive; meaning, for example, that a guidance or “should” statement in the National MUTCD could not be an option in the State Manual, but that it could be a standard or “shall” statement. The Division Administrator and the FHWA Associate Administrator of the Federal Lands Highway Program have the flexibility to determine on a case-by-case basis the degree of variation allowed.

Seven comments generally supported this change but offered potential areas of concern for consideration by the FHWA, and 10 comments opposed this proposed change. Some of the areas of concern from those who supported the change included the following: (1) Agree that there needs to be a definition but do not agree that all “shalls” must be included. (2) Agree, but what happens if States have specific legislation which conflicts with the standards. (3) The proposed definition is fundamentally sound, but will be challenging to meet because of statutory laws that differ from the MUTCD. (4) This change puts unfair liability on cities, particularly the part of the definition that suggests State Manuals or supplements cannot be less prescriptive than the National MUTCD. In urban conditions, there may be any number of reasons why a less prescriptive proposal would still meet the goal of providing adequate uniformity (i.e., the MUTCD requires overhead signs for all HOV but in urban areas this may not be possible).

Some of the comments from those opposed to this change included the following: (1) A State's right to use alternative techniques that are equal to or better than the MUTCD should be protected. (2) The definition does not allow flexibility to accommodate State and local issues. (3) States should retain the option to deviate from standard statements. (4) In some situations, legislative action would put the State in conflict with the National MUTCD.

The FHWA agrees with the comments above that suggest this regulation should address the impact of State laws that may force non-conformance with the National MUTCD and should allow more flexibility to accommodate State and local issues. Therefore, in addition to the definition provided for substantial conformance as it applies to the standard statements in the National MUTCD, the FHWA is also adding the following sentence to 23 CFR 655.603(b)(1) to address these comments: “The FHWA Division Administrators and Associate Administrator for the Federal Lands Highway Program may grant exceptions in cases where a State MUTCD or supplement cannot conform to standard statements in the National MUTCD because of the requirements of a specific State law that was in effect prior to the effective date of this final rule, provided that the Division Administrator or Associate Administrator determines based on information available and documentation received from the State that the non-conformance does not create a safety concern.” In addition to the definition for substantial conformance as it applies to the guidance statements in the National MUTCD, the FHWA is modifying the sentence to read: “The guidance statements contained in the National MUTCD shall also be in the State Manual or supplement unless the reason for not including it is satisfactorily explained based on engineering judgment, specific conflicting State law, or a documented engineering study.” Finally, since the FHWA is adding flexibility in the description of substantial conformance as it relates to standard and guidance statements in the National MUTCD, the FHWA agrees that describing State Manuals or supplements in terms of being either “less prescriptive” or “more prescriptive” is not necessary and the language has been removed from this final rule.

These additional comments were also submitted to the docket and were handled as follows: (1) Defining substantial conformance should be left up to the Division Office in each State. (2) Eliminates right of practitioner to exercise engineering judgment and destroys the only current method by which FHWA employees get to consult and exchange ideas with practitioners. (3) States should not have to incur cost of engineering study to deviate from guidance statements. The FHWA believes that the concern about the Division Office involvement is already addressed because the Division Administrator is an integral part of the process for adopting State Manuals or supplements and this does not change by incorporating any of these changes in the final rule. The FHWA believes that the comment about “engineering judgment” is also addressed in that States have a choice of using engineering judgment to explain deviations from the guidance statements and unlike an engineering study, engineering judgment does not involve a cost. One comment suggested that FHWA should conduct a thorough review of State exceptions or supplements and search for ways to improve the 2003 MUTCD before making this change. The FHWA believes that this comment is beyond the intent of this rulemaking activity.

“Issuance Date”

In the current § 655.603(b)(1), States or other Federal agencies are required to adopt the National MUTCD within 2 years of issuance any changes. The term “issuance date” is incorrect nomenclature and the FHWA is changing this term to “effective date.” The effective date occurs 30 days after a final rule is published in the Federal Register in order to allow parties affected by the rule a reasonable time to prepare for the effective date of a rule, or to take any other action which a final rule may prompt. The FHWA is also moving this discussion to new paragraph (b)(3). The FHWA received four comments in support of this change and no comments opposed. This change will be adopted without modification in the final rule.

Two-Year Adoption Period for States That Automatically Adopt the MUTCD

The FHWA is revising the second sentence in § 655.603(b)(1) to include language that will provide the Division Administrators and the Associate Administrator of the Federal Lands Highway Program the flexibility to allow States that automatically adopt the MUTCD immediately upon the effective date, the option of a 2-year adoption period. This will give States the opportunity to use their existing stocks of certain noncompliant traffic control devices and complete construction projects with previously approved plans that have certain non-compliant traffic control devices under the new MUTCD. The FHWA is also moving this discussion to new § 655.603(b)(3). The FHWA received five comments in support of this change and no comments opposed. This change will be adopted without modification in the final rule.

Reorganization and Editorial Changes

In 23 CFR 655.603(b)(2), the FHWA is combining the first sentence, which gives the FHWA Associate Administrator of the Federal Lands Highway Program approval authority for Federal land management agencies' MUTCDs, with the discussion in 23 CFR 655.603(b)(1) which discusses the Division Administrator's authority to approve State MUTCDs and supplements. The second sentence in paragraph (b)(2) will now become the first and only sentence for paragraph (b)(2).

The FHWA is amending § 655.603(c) by removing footnote number and footnote reference “2” and adding in its place footnote number and footnote reference “1”.

The FHWA is moving the discussion in § 655.603(d)(4) to § 655.603(d)(1). The discussion in § 655.603(d)(4) about the FHWA's option to establish target dates for achieving compliance with changes in the MUTCD is more appropriate for inclusion in § 655.603(d)(1). Therefore, § 655.603(d)(4) is removed.

The FHWA is removing § 655.603(e). This paragraph was originally included when the Specific Service Sign Program was first adopted on January 23, 1969, so that interested persons would be directed to the MUTCD for more details. Since the Specific Service Sign Program has been in the MUTCD for 35 years and the public is very familiar with this program, the FHWA believes that this information is no longer necessary or appropriate for inclusion in Title 23, Code of Federal Regulations.

The FHWA received three comments in support and no comments opposed to the above reorganization and editorial changes. These changes will be adopted without modification in the final rule.

Section 655.604 Achieving Basic Uniformity

In § 655.604, paragraphs (a) and (b) indicate that the systematic upgrading of existing traffic control devices and installation of devices should be based on inventories made in accordance with 23 CFR 1204.4. That section refers to a program required by the former Highway Safety Program Standard Number 13, Traffic Engineering Services (23 CFR 1204.4), a NHTSA regulation that no longer exists. Therefore, the FHWA is removing this reference to 23 CFR 1204.4. The FHWA received five comments in support of this change and no comments opposed. Two of the comments that supported this change and understood why we are removing the outdated reference, did not agree with downgrading the contents of 23 CFR 1204.4 from standards to guidelines. This particular comment is outside the scope of this effort to update the information in 23 CFR part 655 and has not been addressed in this document. This change will be adopted without modification in the final rule.

Rulemaking Analysis and Notices

Executive Order 12866 (Regulatory Planning and Review) and U.S. DOT Regulatory Policies and Procedures

The FHWA has determined that this action would not be a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of U.S. Department of Transportation regulatory policies and procedures. These changes are not anticipated to adversely affect, in any material way, any sector of the economy. The FHWA expects that these changes will provide clarity at little or no additional expense to public agencies or the motoring public. In addition, these changes would not create a serious inconsistency with any other agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Therefore, a full regulatory evaluation is not required.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), the FHWA has evaluated the effects of these changes on small entities and has determined that this action would not have a significant economic impact on a substantial number of small entities.

This rule updates the authorities of the FHWA and referenced documents regarding MUTCD compliance on existing highways. Such updates will provide transportation entities with the appropriate points of contact regarding the MUTCD. The FHWA hereby certifies that these revisions would not have a significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

This final rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, March 22, 1995). This action will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $128.1 million or more in any one year (2 U.S.C. 1532).

Executive Order 13132 (Federalism)

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, and the FHWA has determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this rulemaking will not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

Executive Order 13175 (Tribal Consultation)

The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that it would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal law. Therefore, a tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

The FHWA has analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a significant energy action under that order because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

Paperwork Reduction Act

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

Executive Order 12988 (Civil Justice Reform)

This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

The FHWA has analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this action would not concern an environmental risk to health or safety that may disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

The FHWA does not anticipate that this action would affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

National Environmental Policy Act

The agency has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has determined that it would not have any effect on the quality of the environment.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

List of Subjects in 23 CFR Part 655

• Design standards
• Grant programs—transportation
• Highways and roads
• Incorporation by reference
• Signs
• Traffic regulations

Issued on: December 7, 2006.

J. Richard Capka,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA amends title 23, Code of Federal Regulations, part 655, subpart F as follows:

PART 655—TRAFFIC OPERATIONS

1. The authority citation for part 655 continues to read as follows:

Authority: 23 U.S.C. 101(a), 104, 109(d), 114(a), 217, 315, and 402(a); 23 CFR 1.32; and, 49 CFR 1.48(b).

§ 655.601

[Amended]

2. Amend § 655.601 by removing paragraph (b) and by redesignating paragraphs (c) and (d) as paragraphs (b) and (c), respectively.

3. Amend § 655.603 by revising paragraphs (a) and (b); amending paragraph (c), by redesignating footnote 2 as footnote 1; by revising paragraph (d)(1); and by removing paragraphs (d)(4) and (e) to read as follows:

§ 655.603

Standards.

(a) National MUTCD. The MUTCD approved by the Federal Highway Administrator is the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel in accordance with 23 U.S.C. 109(d) and 402(a). For the purpose of MUTCD applicability, open to public travel includes toll roads and roads within shopping centers, parking lot areas, airports, sports arenas, and other similar business and/or recreation facilities that are privately owned but where the public is allowed to travel without access restrictions. Military bases and other gated properties where access is restricted and private highway-rail grade crossings are not included in this definition.

(b) State or other Federal MUTCD. (1) Where State or other Federal agency MUTCDs or supplements are required, they shall be in substantial conformance with the National MUTCD. Substantial conformance means that the State MUTCD or supplement shall conform as a minimum to the standard statements included in the National MUTCD. The FHWA Division Administrators and Associate Administrator for the Federal Lands Highway Program may grant exceptions in cases where a State MUTCD or supplement cannot conform to standard statements in the National MUTCD because of the requirements of a specific State law that was in effect prior to the effective date of this final rule, provided that the Division Administrator or Associate Administrator determines based on information available and documentation received from the State that the non-conformance does not create a safety concern. The guidance statements contained in the National MUTCD shall also be in the State Manual or supplement unless the reason for not including it is satisfactorily explained based on engineering judgment, specific conflicting State law, or a documented engineering study. The FHWA Division Administrators shall approve the State MUTCDs and supplements that are in substantial conformance with the National MUTCD. The FHWA Associate Administrator of the Federal Lands Highway Program shall approve other Federal land management agencies MUTCDs and supplements that are in substantial conformance with the National MUTCD. The FHWA Division Administrators and the FHWA Associate Administrators for the Federal Lands Highway Program have the flexibility to determine on a case-by-case basis the degree of variation allowed.

(2) States and other Federal agencies are encouraged to adopt the National MUTCD in its entirety as their official Manual on Uniform Traffic Control Devices.

(3) States and other Federal agencies shall adopt changes issued by the FHWA to the National MUTCD within two years from the effective date of the final rule. For those States that automatically adopt the MUTCD immediately upon the effective date of the latest edition or revision of the MUTCD, the FHWA Division Administrators have the flexibility to allow these States to install certain devices from existing inventory or previously approved construction plans that comply with the previous MUTCD during the two-year adoption period.

* * * * *

(d) Compliance—(1) Existing highways. Each State, in cooperation with its political subdivisions, and Federal agency shall have a program as required by 23 U.S.C. 402(a), which shall include provisions for the systematic upgrading of substandard traffic control devices and for the installation of needed devices to achieve conformity with the MUTCD. The FHWA may establish target dates of achieving compliance with changes to specific devices in the MUTCD.

* * * * *

4. Revise the first sentence of paragraph (a) and the first sentence of paragraph (b) of § 655.604 to read as follows:

§ 655.604

Achieving basic uniformity.

(a) Programs. Programs for the orderly and systematic upgrading of existing traffic control devices or the installation of needed traffic control devices on or off the Federal-aid system should be based on inventories made in accordance with the Highway Safety Program Guideline 21, “Roadway Safety.” * * *

(b) Inventory. An inventory of all traffic control devices is recommended in the Highway Safety Program Guideline 21, “Roadway Safety.” * * *