[Federal Register Volume 76, Number 148 (Tuesday, August 2, 2011)]
[Proposed Rules]
[Pages 46213-46216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19511]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 655

[FHWA Docket No. FHWA-2010-0170]
RIN 2125-AF41


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.

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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

[[Page 46214]]

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 (202) 493-2251. 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, (202) 366-5915; or Mr. William Winne, Office 
of the Chief Counsel, (202) 366-1397, 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.''
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    \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.
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    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

[[Page 46215]]

and subsequent Final Rules will be numbered accordingly.
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    \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.
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    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.

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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 Sec.  655.601(a), to read as follows:


Sec.  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 (202) 741-6030, 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 202-366-1993, 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.
* * * * *
[FR Doc. 2011-19511 Filed 8-1-11; 8:45 am]
BILLING CODE 4910-22-P