[Federal Register Volume 71, Number 240 (Thursday, December 14, 2006)]
[Rules and Regulations]
[Pages 75111-75115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21228]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 655
[FHWA Docket No. FHWA-2005-23182]
RIN 2125-AF16
Traffic Control Devices on Federal-Aid and Other Streets and
Highways; Standards
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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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nomenclature changes, removes outdated references, and provides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, (202) 366-5915, or Mr. Raymond Cuprill,
Office of the Chief Counsel, (202) 366-0791, 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
[[Page 75112]]
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
[[Page 75113]]
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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 655.603(d)(4) to Sec.
655.603(d)(1). The discussion in Sec. 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 Sec. 655.603(d)(1).
Therefore, Sec. 655.603(d)(4) is removed.
The FHWA is removing Sec. 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
[[Page 75114]]
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 Sec. 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
[[Page 75115]]
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.
0
In consideration of the foregoing, the FHWA amends title 23, Code of
Federal Regulations, part 655, subpart F as follows:
PART 655--TRAFFIC OPERATIONS
0
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).
Sec. 655.601 [Amended]
0
2. Amend Sec. 655.601 by removing paragraph (b) and by redesignating
paragraphs (c) and (d) as paragraphs (b) and (c), respectively.
0
3. Amend Sec. 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:
Sec. 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.
* * * * *
0
4. Revise the first sentence of paragraph (a) and the first sentence of
paragraph (b) of Sec. 655.604 to read as follows:
Sec. 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.'' * * *
[FR Doc. E6-21228 Filed 12-13-06; 8:45 am]
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