2011-19511. National Standards for Traffic Control Devices; the Manual on Uniform Traffic Control Devices for Streets and Highways; Revision

AGENCY:

Federal Highway Administration (FHWA), (DOT).

ACTION:

Proposed rule; request for comments.

SUMMARY:

The Manual on Uniform Traffic Control Devices (MUTCD) is incorporated in our regulations, approved by the Federal Highway Administration, and recognized as the national standard for traffic control devices used on all streets, highways, bikeways, and private roads open to public travel. The FHWA proposes to revise certain standards, guidance, options, and supporting information relating to traffic control devices in Part 1 (General) of the MUTCD. The proposed changes are intended to clarify the definition of Standard statements in the MUTCD and clarify the use of engineering judgment and studies in the application of traffic control devices.

DATES:

Comments must be received on or before October 3, 2011. Late-filed comments will be considered to the extent practicable.

ADDRESSES:

Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, 1200 New Jersey Avenue, SE., Washington, DC 20590, or submit electronically at http://www.regulations.gov or fax comments to [phone]. All comments should include the docket number that appears in the heading of this document. All comments received will be available for examination and copying at the above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard or may print the acknowledgment page that appears after submitting comments electronically. Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70, Page 19477-78) or you may visit http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

Mr. Hari Kalla, Office of Transportation Operations, [phone]; or Mr. William Winne, Office of the Chief Counsel, [phone], Federal Highway Administration, 1200 New Jersey Ave., SE., Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

You may submit or retrieve comments online through the Federal eRulemaking portal at: http://www.regulations.gov. Electronic submission and retrieval help and guidelines are available under the help section of the Web site. It is available 24 hours each day, 365 days each year. Please follow the instructions. An electronic copy of this document may also be downloaded from the Office of the Federal Register's home page at: http://www.archives.gov and the Government Printing Office's Web page at: http://www.access.gpo.gov/​nara.

Background

In the December 16, 2009, Final Rule ^[1] adopting the 2009 edition of the MUTCD, the FHWA made clarifying revisions to the text of Section 1A.09 and to the definition of Standard in Section 1A.13 to remove conflicting language and provide consistency in the intended use of engineering judgment and engineering studies. The Final Rule deleted the following 2003 MUTCD text from the GUIDANCE in Section 1A.09 of the 2009 MUTCD: “The decision to use a particular device at a particular location should be made on the basis of either an engineering study or the application of engineering judgment. Thus, while this Manual provides Standards, Guidance, and Options for design and application of traffic control devices, this Manual should not be considered a substitute for engineering judgment. Engineering judgment should be exercised in the selection and application of traffic control devices * * *” Additionally, in paragraph 1 of Section 1A.13, the following sentence was added to the definition of Standard: “Standard statements shall not be modified or compromised based on engineering judgment or engineering study.”

It was not the intention of the FHWA to change the longstanding meaning of Standard or remove the appropriate application of engineering studies or engineering judgment where the language of a particular Standard explicitly or implicitly requires it.

Subsequent to the issuance of the Final Rule for the 2009 MUTCD, the FHWA received correspondence and resolutions from the American Association of State Highway and Transportation Officials (AASHTO) and the National Committee on Uniform Traffic Control Devices (NCUTCD), and letters from several State DOTs, expressing concerns that the removal of language from Section 1A.09 and the addition of the sentence to the Section 1A.13 definition of Standard had the effect of removing the flexibility of highway agencies to address field conditions. The FHWA agrees with some of the concerns and especially believes that, even with the clarifications adopted in the 2009 MUTCD, the language concerning the appropriate use of engineering studies and engineering judgment in relation to Standards in the MUTCD is still unclear. Therefore, the FHWA is proposing amendments to Section 1A.09 and to paragraph 1 of Section 1A.13 at this time.

Proposed Amendment

The text of this proposed revision of the 2009 edition of the MUTCD is available for inspection and copying, as prescribed in 49 CFR part 7, at the FHWA Office of Transportation Operations (HOTO-1), 1200 New Jersey Avenue, SE., Washington, DC 20590. Furthermore, the text of the proposed revision is available on the MUTCD Internet Web site http://mutcd.fhwa.dot.gov,, showing the current MUTCD text of Section 1A.09 and paragraph 1 of Section 1A.13 with proposed additions in blue underlined text and proposed deletions as red strikeout text. The complete current 2009 edition of the MUTCD is also available on the same Internet Web site. A copy of the proposed revision is also available at http://www.regulations.gov under the docket number noted above.

This NPA is being issued to provide an opportunity for public comment on the desirability of these proposed amendments to the MUTCD. Based on the comments received and its own experience, the FHWA may issue a Final Rule concerning the proposed changes included in this notice.

It should be noted that on April 22, 2010, an NPA was published in the Federal Register,^[2] proposing to revise the 2009 MUTCD by adding Standards, Guidance, Options, and Support information regarding maintaining minimum retroreflectivity of longitudinal pavement markings. The deadline for comments to that docket has passed and the FHWA is currently reviewing the docket comments received. In the April 22, 2010, NPA, it was noted that the proposed revisions regarding maintaining minimum retroreflectivity of longitudinal pavement markings would be designated as Revision 1 to the 2009 edition of the MUTCD. Actual designation of revision numbers will depend on the relative timing of any Final Rules that may be issued by the FHWA as a result of the April 22, 2010, NPA, this NPA, or any other rulemakings related to the MUTCD. Whichever of the Final Rules is issued first would be designated as Revision 1 and subsequent Final Rules will be numbered accordingly.

The FHWA requests that commenters cite the Section number and paragraph number of the proposed MUTCD text for which each specific comment to the docket about the proposed text is concerned, to help make the FHWA's docket comment review process more efficient.

A summary of the proposed changes in Part 1 of the MUTCD is included in the following discussion.

Discussion of Proposed Amendments to the MUTCD

1. In Section 1A.09 Engineering Study and Engineering Judgment, the FHWA proposes to add a new GUIDANCE paragraph stating that the decision to use a particular device at a particular location should be made on the basis of either an engineering study or the application of engineering judgment. This proposed GUIDANCE reinstates one of the GUIDANCE sentences in the 2003 MUTCD that was removed in the final rule for the 2009 MUTCD.

Additionally, the FHWA proposes to add a new OPTION paragraph stating that when an engineering study or the application of engineering judgment determines that unusual site-specific conditions at a particular location make compliance with a Standard statement in this Manual impossible or impractical, an agency may deviate from that Standard statement at that location. The FHWA believes that the addition of this flexibility is needed in limited cases because some STANDARD statements in the MUTCD cannot possibly address all the various unusual field conditions that, while relatively rare, do exist on the street and highway network in ways that can make it impossible or impractical to meet the precise requirements at such a particular location. It is not intended that a highway agency be authorized to adopt or implement broad policies or practices that deviate from a Standard on a blanket basis jurisdiction-wide, region-wide, on all highways of a particular class, or using similar criteria. The MUTCD provisions that are STANDARDS are intended to be mandatory, as opposed to merely recommended. As such, it is inappropriate to deviate from a STANDARD for any reason other than an engineering determination that the unusual site conditions at a particular location make it impossible or impractical to meet the explicit requirement of the STANDARD at that location.

2. In Section 1A.13 Definitions of Headings, Words, and Phrases in This Manual, the FHWA proposes to modify Paragraph 1 by removing the sentence that was added to the definition of Standard in the Final Rule for the 2009 MUTCD. The sentence proposed for removal currently states “Standard statements shall not be modified or compromised based on engineering judgment or engineering study.” The FHWA believes that, with the proposed additional clarifying language in Section 1A.09, this sentence would no longer be needed.

Rulemaking Analysis and Notices

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

The FHWA has determined that this action would be a significant regulatory action within the meaning of Executive Order 12866 and within the meaning of U.S. Department of Transportation regulatory policies and procedures because of the significant public interest in the MUTCD. The proposed changes in the MUTCD would provide additional clarification, guidance, and flexibility in the application of traffic control devices. The FHWA believes that the uniform application of traffic control devices will greatly improve the traffic operations efficiency and roadway safety. The standards, guidance, and support are also used to create uniformity and to enhance safety and mobility at little additional expense to public agencies or the motoring public. These changes are not anticipated to adversely affect, in any material way, any sector of the economy. 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. It is anticipated that the economic impact of this rulemaking would be minimal; 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 proposed rule would provide clarification and additional flexibility.

Unfunded Mandates Reform Act of 1995

This proposed 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). The proposed changes provide additional guidance, flexibility, and clarification and would not require an expenditure of funds. This action would not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $140.8 million or more in any 1 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. The MUTCD is incorporated by reference in 23 CFR Part 655, subpart F. These proposed amendments are in keeping with the Secretary of Transportation's authority under 23 U.S.C. 109(d), 315, and 402(a) to promulgate uniform guidelines to promote the safe and efficient use of the highway. The overriding safety benefits of the uniformity prescribed by the MUTCD are shared by all of the State and local governments, and changes made to this rule are directed at enhancing safety. To the extent that these proposed amendments override any existing State requirements regarding traffic control devices, they do so in the interest of national uniformity.

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 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: July 27, 2011.

Victor M. Mendez,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA proposes to amend title 23, Code of Federal Regulations part 655 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).

Subpart F—Traffic Control Devices on Federal-Aid and Other Streets and Highways—[Amended]

2. Revise § 655.601(a), to read as follows:

§ 655.601

Purpose.

* * * * *

(a) Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD), 2009 Edition, with Revision(s) number __ [revision number to be inserted] incorporated, FHWA, dated ______ [date to be inserted]. This publication is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51 and is on file at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA call [phone], or go to http://www.archives.gov/​federal_​register/​code_​of_​federal_​regulations/​ibr_​locations.html. It is available for inspection and copying at the Federal Highway Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590, telephone [phone], as provided in 49 CFR part 7. The text is also available from the FHWA Office of Operations Web site at: http//mutcd.fhwa.dot.gov.

* * * * *

Footnotes

1.  74 FR 66732, December 16, 2009. This Federal Register notice can be viewed at the following Internet Web site: http://edocket.access.gpo.gov/​2009/​pdf/​E9-28322.pdf.

2.  75 FR 20935, April 22, 2010. This Federal Register notice can be viewed at the following Internet Web site: http://edocket.access.gpo.gov/​2010/​pdf/​2010-9294.pdf.