The proposed revision to 23 CFR (a) is in one way too broad and in another too narrow.

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1 From: John F. Carr, Ref: FHWA Docket No. FHWA Scope of the MUTCD The proposed revision to 23 CFR (a) is in one way too broad and in another too narrow. The statutory authority for 23 CFR part 655 grants power only over state and territorial governments receiving federal highway funds. There is no authority to directly impose the MUTCD on private property owners. As noted in the NPRM, many states have not adopted the provision of the Uniform Vehicle Code making the MUTCD applicable to private property. Without that state law authority to require MUTCD compliance, the list of private properties subject to the MUTCD has no legal effect and will only serve to confuse the legal situation. If FHWA intends to require states to make the MUTCD applicable to private property that policy should be made unmistakably clear: A highway safety program under 23 USC 402(a) must include a requirement that all traffic control devices on roads open to public travel, whether publicly or privately owned, comply with the MUTCD. That change would call into question the Regulatory Flexibility Act certification that these proposed revisions would not have a significant economic impact on a substantial number of small entities as many small businesses could be required to retain traffic engineers to maintain their public parking spaces. I do not believe this extreme step is warranted. Encouraging states to adopt UVC should be done outside of the rulemaking process. (The relevant section is numbered in my 1992 edition of the UVC, not as stated in the NPRM.) On the other hand, the authority of the MUTCD should extend at least as far as the power to enforce traffic laws. Law enforcement is state action even if it takes 1

2 place on private property. Signs which are legally binding can be said to have been placed by authority of a public agency and therefore included in the definition of traffic control device in section 1A.13 of the MUTCD. For example, in Connecticut towns may require owners of private roads to post speed limits, and those roads are then subject not only to speed limits but also to certain other traffic laws not applicable to ordinary private property. In Massachusetts legally enforceable signs can be posted on private property by mutual agreement of the town government and property owner. In some other states owners of private roads or gated subdivisions can contract with the Sheriff s department to have speed limits, stop signs, or other traffic laws enforced. Handicap parking rules on private property are enforceable as a general rule in some states. These situations involve property that might not be considered open to public travel but ought to be subject to the MUTCD. The guiding principle should be, where the government regulates or enforces traffic control devices, the MUTCD must be the standard. The final rule should also resolve inconsistencies between 23 CFR , the definition of traffic control device in MUTCD 1A.13, and other provisions of the MUTCD. MUTCD 3B.19 mentions parking lots, but there is nothing in 23 CFR 655 or MUTCD 1A.13 to say that the MUTCD applies to parking lots. Pedestrian facilities are mentioned in the introduction to the MUTCD but not in 23 CFR 655. I suggest the following pair of changes to provide a clear, consistent, legally permissible definition of the scope of the MUTCD. 23 CFR (a) should read: The MUTCD approved by the Federal Highway Administrator is the national standard for all traffic control devices installed on any public street, highway, parking lot, or bicycle trail. In addition, the MUTCD is the standard for all traffic control devices on private facilities on which traffic laws may be enforced, and specifically for any traffic control device on public or private property which is legally enforceable under state or local law. In states which regulate traffic control devices on private facilities open to public travel, such as shopping centers, the MUTCD is the standard for such facilities. Private highway-rail grade crossings are not subject to the MUTCD. 2

3 MUTCD section 1A.13 definition 87 should be revised to read: Traffic Control Device a sign, signal, marking, or other device used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street or other facility described in 23 CFR (a) by authority of a public agency, including traffic control devices placed by a private party that may be enforced by a public agency. Standards for state supplements FHWA proposes the following rule: The guidance statements contained in the National MUTCD are also expected to be in the State Manual or supplement. If a guidance statement is not included, then the reason for not including it must be satisfactorily explained based on a documented engineering study or engineering judgment. All guidance in the FHWA version of the MUTCD should be guidance or standard in any state manuals. FHWA should stop its practice of approving state MUTCDs that allow regulatory or safety signs and signals that are inconsistent with the national MUTCD. Guidance is defined as recommended practice in typical situations. It violates the principle of uniformity for an entire state to be considered atypical. If it is appropriate for a state to disregard guidance statewide, or in a majority of locations, then the statement should not have been guidance in the first place. Guidance should be treated as a presumption that may only be overruled by engineering judgment or an engineering that finds site-specific, unusual circumstances not accounted for in the general rule. I specifically disagree with FHWA s answer #13 in the general questions section of the MUTCD FAQ to the extent that it disapproves of court interpretations treating guidance as a presumption. 3

4 Statewide exceptions should only be made when the situation to which the guidance applies simply does not occur in the state, e.g. signing of Interstate highways in Alaska, or the warrants for posting long, steep downgrades in Florida (maximum elevation 345 feet). Many exceptions which FHWA has approved 1 seem to be driven by states desire to continue existing policy rather than comply with the MUTCD. That is not to say that all should statements currently in the MUTCD ought to be binding on states in most circumstances. Recommendations or preferred practices which can be overruled based on considerations other than traffic engineering judgment, or can be entirely disregarded by a state, should be rewritten as support or qualified by stating what other than engineering judgment might justify deviation. Such language appears in at least one place in the existing manual. The white area of route markers should be circular in the absence of any determination to the contrary by the individual State concerned. The color of street name signs is another example of unnecessary use of guidance. They should have green backgrounds, but clearly the background color is an aesthetic decision rather than an engineering decision. It would be better to say Support: Street name signs usually have white letters on a green background. The second and third sentences of proposed 23 CFR (b)(1) should be revised to read: Substantial conformance means that the State MUTCD or supplement shall conform as a minimum to the standard and guidance statements included in the National MUTCD, except those applicable only to situations not found in the state or applicable to traffic control devices which are not required by the National MUTCD and are not used in the state. 1 FHWA chose to require a posted speed limit at the end of a speed zone instead of end speed limit indicating a return to the statutory speed limit. At least three states do not comply: California (state R3 sign), Minnesota (MnMUTCD 2B.16.1), and Pennsylvania (Penn. Code (e)(1)(3)). Ohio specifies reduced speed ahead instead of the new W3-5 series. While I do not disagree with the states policies, I do question FHWA s decision to make existing practice nonstandard and then grant waivers. The Ohio MUTCD also alters the standard meanings for traffic signals in section 4D.04, omits the standard statement that speed limit alterations follow an engineering study, and omits the guidance that a speed limit should be close to the 85th percentile speed of free-flowing traffic. 4

5 Use of existing inventory The two year period for use of existing inventory is appropriate, for the reasons stated in the NPRM and in order to avoid penalizing states that promptly adopt new standards. 5