[Federal Register Volume 77, Number 93 (Monday, May 14, 2012)]
[Rules and Regulations]
[Pages 28456-28459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11712]
[[Page 28455]]
Vol. 77
Monday,
No. 93
May 14, 2012
Part IV
Department of Transportation
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Federal Highway Administration
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23 CFR Part 655
National Standards for Traffic Control Devices; the Manual on Uniform
Traffic Control Devices for Streets and Highways; Revision; Final Rules
Federal Register / Vol. 77 , No. 93 / Monday, May 14, 2012 / Rules
and Regulations
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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;
Final Rule
AGENCY: Federal Highway Administration (FHWA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: The MUTCD is incorporated in the FHWA regulations, approved by
the FHWA, and recognized as the national standard for traffic control
devices used on all streets, highways, bikeways, and private roads open
to public travel. The purpose of this final rule is to revise certain
definitions and guidance relating to traffic control devices in Part 1
(General) of the MUTCD. The changes will 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: Effective Date: This final rule is effective June 13, 2012. The
incorporation by reference of the publication listed in this regulation
is approved by the Director of the Office of the Federal Register as of
June 13, 2012.
FOR FURTHER INFORMATION CONTACT: Mr. Chung Eng, Office of
Transportation Operations, (202) 366-8043; 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
a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
This document, the notice of proposed amendment (NPA), and all
comments received may be viewed online through the Federal eRulemaking
portal at: http://www.regulations.gov. Electronic submission and
retrieval help and guidelines are available on the Web site. It is
available 24 hours each day, 366 days this 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/federal-register and the Government Printing
Office's Web page at: http://www.gpo.gov/fdsys.
Executive Summary
I. Purpose of the Regulatory Action
The FHWA has the authority to prescribe standards for traffic
control devices on all roads open to public travel pursuant to 23
U.S.C. 109(d), 114(a), 217, 315, and 402(a). In the 2009 edition of the
MUTCD, the FHWA made clarifying revisions to the 2003 edition of the
MUTCD to remove conflicting language and provide consistency in the
intended use of engineering judgment and engineering studies. After
issuance of the Final Rule for the 2009 MUTCD, FHWA received
correspondence from several entities indicating that the clarifying
revisions had the effect of removing highway agencies' flexibility to
address field conditions. This was not FHWA's intention. Thus, on
August 2, 2011 the FHWA published a Notice of Proposed Amendment (NPA)
proposing revisions to the MUTCD to address these concerns.
II. Summary of the Major Provisions of the Regulatory Action in
Question
In consideration of the comments received in response to the NPA,
this Final Rule restores certain language contained in the 2003 MUTCD
edition. The restoration of such language will continue FHWA's current
practice under Official Interpretation 1(09)-1 (I) which states that in
limited, specific cases, deviation from a STANDARD is allowed at a
location or other locations with the same conditions, provided that an
agency or other official having jurisdiction fully documents the
engineering reason for the deviation. The MUTCD, with these changes
incorporated, is being designated as Revision 1 of the 2009 edition of
the MUTCD.
III. Costs and Benefits
The changes in the MUTCD will 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 will 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. Although FHWA did not quantify the costs, we believe
they will be minimal. One benefit of this rule is reduced expenditures
for locations with identical conditions. For example, when a deviation
is found to be warranted and can be justified, these locations will not
have to spend funds on repetitive or duplicative engineering studies.
In addition, since the rule restores language from the 2003 edition of
the MUTCD, agencies would not have to expend resources to modify their
existing operating procedures.
Background
On August 2, 2011, at 76 FR 46213, the FHWA published an NPA
proposing revisions to the MUTCD. Interested persons were invited to
submit comments to the FHWA Docket Number FHWA-2010-0170. Based on the
comments received and its own experience, the FHWA is issuing this
final rule and is designating the MUTCD, with these changes
incorporated, as Revision 1 of the 2009 edition of the MUTCD.
The text of Revision 1 of the 2009 edition of the MUTCD, with these
final rule changes incorporated, 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 Revision 1 of the 2009
edition of the MUTCD, with these final rule changes incorporated, is
available on the FHWA's MUTCD Web site at: http://mutcd.fhwa.dot.gov.
The original 2009 edition of the MUTCD and the 2003 edition of the
MUTCD with Revisions 1 and 2 incorporated are also available on this
Web site. Revision 1 of the 2009 edition of the MUTCD supersedes all
previous editions and revisions of the MUTCD.
Summary of Comments
The FHWA received, reviewed, and analyzed the 51 letters submitted
to the docket, which contain more than 125 different comments on the
proposed changes. The American Association of State Highway and
Transportation Officials (AASHTO), the National Committee on Uniform
Traffic Control Devices (NCUTCD), the American Public Works Association
(APWA), the National Association of County Engineers (NACE), the
American Traffic Safety Services Association (ATSSA), State departments
of transportation (DOTs), city and county government agencies, other
associations, transportation consultants, and
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individual private citizens submitted comments.
The AASHTO generally supported FHWA's proposal to remove the last
sentence in the definition of STANDARD in Section 1A.13; however, it
expressed that the value of such a change would be minimized by the
proposed language in Section 1A.09 regarding the use of engineering
judgment and engineering studies. The AASHTO asserted that FHWA's
proposed language in Section 1A.09 was insufficient because it did not
include additional sentences from the 2003 edition of the MUTCD
GUIDANCE statement that emphasized the importance of using engineering
judgment in the placement of traffic control devices. The AASHTO also
disagreed with the OPTION statement proposed for Section 1A.09 in the
NPA, contending that it limited the application of engineering judgment
or an engineering study to a specific site. The AASHTO submitted a
second letter recommending a new sentence that would allow programmatic
deviations from a STANDARD based on an engineering study. The NCUTCD,
APWA, NACE, 23 State DOTs, 4 local agencies, and 1 transportation
consultant submitted comments similar to AASHTO's first letter.
The ATSSA and the Association of American Railroads supported the
NPA in its entirety and specifically disagreed with AASHTO's comments
regarding Section 1A.09. Three transportation consultants asserted that
the definition of STANDARD and the 2009 edition of the MUTCD's text on
the application of engineering judgment and studies are appropriate and
do not need to be revised. These comments, including those raised by
AASHTO that are identified above, are discussed in more detail in the
section-by-section discussions below for both 1A.13 and 1A.09.
Comments Outside the Scope of the Rulemaking
In addition to commenting on the proposed changes, AASHTO and four
State DOTs suggested that the FHWA use this rulemaking process to
address the issue of ``substantial conformance'' of State MUTCDs, as
defined in the Code of Federal Regulations (CFR). Specifically, AASHTO
suggested that FHWA issue interim final rules to revise 23 CFR 655.602
and 655.603 so that States could apply engineering judgment and studies
to delete STANDARDS from their State MUTCDs and still have their State
MUTCDs accepted by FHWA as being in substantial conformance with the
national MUTCD. The meaning of ``substantial conformance'' was
considered and established through a final rule published in the
Federal Register on December 14, 2006 at 74 FR 75111. Because the NPA
for this rulemaking did not propose any changes to this meaning and did
not solicit public comments about this topic, this issue is outside the
scope of this rulemaking and will not be addressed in this final rule.
Three States also expressed concern with compliance dates,
suggesting that compliance dates the States viewed as unessential be
removed or delayed. One State also suggested that FHWA address
systematic upgrading of traffic control devices in this rulemaking.
Comments related to the issue of compliance dates listed in the MUTCD
are currently being considered in response to an NPA published in the
Federal Register on August 31, 2011 at 76 FR 54156. Because the NPA for
this rulemaking did not propose any changes to the compliance dates or
to the meaning of ``systematic upgrading of traffic control devices''
and did not solicit public comments about these topics, these issues
are outside the scope of this rulemaking and will not be addressed in
this final rule.
Discussion of Comments by Section
1. In the MUTCD Section 1A.13, Definitions of Headings, Words, and
Phrases, the FHWA proposed in the NPA to delete the last sentence in
the definition of the heading STANDARD. This sentence, which was added
in the 2009 edition of the MUTCD, stated:
Standard statements shall not be modified or compromised based
on engineering judgment or engineering study.
The majority of commenters, including AASHTO, NCUTCD, APWA, NACE, State
DOTs, and local agencies, supported removing this sentence. Two States
suggested adding language to the definition of STANDARD to help clarify
that site-specific conditions may make it impossible or impractical for
an agency to comply with a STANDARD. The FHWA believes that such a
change is not necessary because restoration of certain GUIDANCE
statements from the 2003 MUTCD will provide for deviation from a
STANDARD in limited, specific cases at a location, or other locations
with the same conditions, provided that an agency or other official
having jurisdiction fully documents the engineering reason for the
deviation. Therefore, the FHWA adopts the removal of this sentence from
the definition of STANDARD in Section 1A.13, as proposed in the NPA.
The NCUTCD, APWA, and NACE also suggested that the definitions for
``engineering judgment'' and ``engineering study'' in Section 1A.13
should be restored to the text found in the 2003 edition of the MUTCD.
Specifically, these commenters reasoned that because this rulemaking
pertains to exercising engineering judgment and using engineering
studies to make traffic control device decisions, it is appropriate to
restore the definitions of these terms to the ones contained in the
2003 edition of the MUTCD. The FHWA did not propose any changes to the
definitions of ``engineering judgment'' or ``engineering study,'' which
are contained within a STANDARD statement in Section 1A.13, and thus
any changes to these definitions are outside the scope of this
rulemaking. The FHWA might give consideration to proposing revisions to
these definitions in conjunction with a future NPA for the next edition
of the MUTCD.
2. In Section 1A.09, Engineering Study and Engineering Judgment,
FHWA proposed in the NPA to add a 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. The FHWA proposed this change in order to
reinstate one of the three GUIDANCE sentences in the 2003 edition of
the MUTCD that had been removed in the 2009 edition of the MUTCD. The
AASHTO, NCUTCD, APWA, NACE, and the majority of the State and local
agencies supported FHWA's proposal, but felt that it was insufficient
because it did not include restoration of the two other sentences from
the 2003 edition of the MUTCD GUIDANCE statement. Those second and
third sentences stated:
Thus, while this Manual provides Standards, Guidance, and
Options for design and applications 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, as well as in the
location and design of roads and streets that the devices
complement.
Specifically, AASHTO stated that the exclusion of the second sentence
from the 2003 edition of the MUTCD GUIDANCE statement, coupled with
FHWA's proposal, would not adequately support the reinstatement of
engineering judgment into the application of traffic control devices.
The NCUTCD, NACE, and APWA suggested that only the second sentence from
the 2003 edition of the GUIDANCE statement should be restored. Two
State
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DOTs agreed with the NPA as proposed. Three transportation consultants
disagreed with the proposed GUIDANCE in the NPA, asserting that the
application of engineering judgment and studies as described in the
2009 edition of the MUTCD is appropriate and does not need to be
revised.
In a second letter to the docket, AASHTO also recommended adding a
new, fourth sentence to the GUIDANCE that would state:
An engineering study is required for programmatic deviations
from Standards contained within this Manual.
Such language effectively would allow agencies to deviate from a
STANDARD on a programmatic basis, rather than based on impracticality
at a specific site supported by engineering judgment or study. As noted
in the NPA, it is not and has never been the intention of the FHWA to
authorize a highway agency to adopt or implement broad policies or
practices that deviate from a STANDARD on a blanket or programmatic
basis jurisdictionwide, regionwide, on all highways of a particular
class, or using similar criteria. Therefore, FHWA believes adding a
fourth sentence of GUIDANCE as suggested by AASHTO's second letter is
not appropriate.
In the NPA, FHWA proposed 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
impossible or impractical, an agency may deviate from that STANDARD
statement at that location. The AASHTO, NCUTCD, APWA, NACE, and 20
State DOTs disagreed and suggested that this language be removed
because such an application would be overly restrictive and financially
burdensome on agencies. Specifically, these commenters stated that such
language would require jurisdictions to study each site individually,
even where multiple locations with the same or similar conditions make
a particular deviation necessary. Additionally, several State agencies
indicated that the proposed OPTION statement did not reflect the intent
of FHWA's Official Interpretation number 1(09)-1 (I),\1\ dated October
1, 2010, which states that in limited, specific cases, deviation from a
STANDARD is allowed at a location or other locations with the same
conditions, provided that an agency or other official having
jurisdiction fully documents the engineering reason for the deviation.
We would note that FHWA did not intend for the proposed OPTION language
to trigger studies for each location with similar conditions.
Nevertheless, FHWA has determined that the OPTION paragraph proposed in
the NPA is not needed because the topic is adequately addressed by
Official Interpretation 1(09)-1 (I), which is still in effect.
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\1\ This Official Interpretation of the MUTCD can be viewed at
the following Web site: http://mutcd.fhwa.dot.gov/resources/interpretations/1_09_1.htm.
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In consideration of the comments received and our determination
that the OPTION language in the NPA is not needed, we have decided,
instead, to restore the three 2003 MUTCD GUIDANCE sentences that were
subsequently removed in the 2009 MUTCD edition. The inclusion of such
language will continue our current practice under Official
Interpretation 1(09)-1 (I) to allow deviations from a STANDARD only on
the basis of either an engineering study or the application of
engineering judgment. Thus, the GUIDANCE language in Section 1A.09 will
now read as follows:
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
applications 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, as well as in the location and design of
roads and streets that the devices complement.
The FHWA will continue to consider matters raised by this rulemaking to
inform future decisions regarding the MUTCD.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
The FHWA has determined that this action is 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. Additionally, this action complies with the principles of
Executive Order 13563. The changes in the MUTCD will 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 will 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 will 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 this action on
small entities, including small governments. The FHWA certifies that
this action will not have a significant economic impact on a
substantial number of small entities. This rule will provide
clarification and additional flexibility.
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 will 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
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
by this rule are directed at enhancing safety. To the extent that these
amendments may override any existing State requirements regarding
traffic control devices, they do so in the interest of national
uniformity.
Unfunded Mandates Reform Act of 1995
This rule does 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 changes provide additional
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guidance, flexibility, and clarification and will not require an
expenditure of funds. This action will 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 13175 (Tribal Consultation)
The FHWA has analyzed this action under Executive Order 13175,
dated November 6, 2000, and believes that it will not have substantial
direct effects on one or more Indian tribes, will not impose
substantial direct compliance costs on Indian tribal governments, and
will not preempt tribal law. Therefore, a tribal summary impact
statement is not required.
Executive Order 13211 (Energy Effects)
The FHWA has analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The FHWA has determined that this 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 a collection of information requirement
for the 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,
to eliminate ambiguity, and to 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. This is not an economically significant action and does not
concern an environmental risk to health or safety that might
disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This action would not 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 et seq.) and has
determined that it will not have any effect on the quality of the
environment and meets the criteria for the categorical exclusion at 23
CFR 771.117(c)(20).
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, Pavement Markings, Traffic
regulations.
Issued on: May 9, 2012.
Victor M. Mendez,
Administrator.
In consideration of the foregoing, the FHWA is amending 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).
Subpart F--[Amended]
0
2. Revise Sec. 655.601, to read as follows:
Sec. 655.601 Purpose.
To prescribe the policies and procedures of the Federal Highway
Administration (FHWA) to obtain basic uniformity of traffic control
devices on all streets and highways in accordance with the following
references that are approved by the FHWA for application on Federal-aid
projects:
(a) MUTCD.
(b) AASHTO Guide to Metric Conversion.
(c) AASHTO Traffic Engineering Metric Conversion Factors.
(d) The standards required in this section are incorporated by
reference into this section in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. To enforce any edition other than that specified in this
section, the FHWA must publish notice of change in the Federal Register
and the material must be available to the public. All approved material
is available for inspection at the Federal Highway Administration,
Office of Transportation Operations, 1200 New Jersey Avenue SE.,
Washington, DC 20590, (202) 366-8043 and is available from the sources
listed below. It is also available for inspection 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/cfr/index.html.
(1) AASHTO, American Association of State Highway and
Transportation Officials, Suite 249, 444 North Capitol Street NW.,
Washington, DC 20001
(i) AASHTO Guide to Metric Conversion, 1993;
(ii) AASHTO, Traffic Engineering Metric Conversion Factors, 1993--
Addendum to the Guide to Metric Conversion, October 1993.
(2) FHWA, Federal Highway Administration, 1200 New Jersey Avenue
SE., Washington, DC 20590, telephone (202) 366-1993, also available at
http://mutcd.fhwa.dot.gov.
(i) Manual on Uniform Traffic Control Devices for Streets and
Highways (MUTCD), 2009 Edition, including Revisions No. 1 and No. 2,
FHWA, dated May 2012.
(ii) [Reserved]
[FR Doc. 2012-11712 Filed 5-10-12; 4:15 pm]
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