TO: FHWA docket on MUTCD NPA (docket \# 28977)

FROM: National Committee on Uniform Traffic Control Devices

SUBJECT: Request for a Supplemental Notice of Proposed Amendments to the
MUTCD

DATE: July 15, 2008

The National Committee on Uniform Traffic Control Devices (NCUTCD) is an
organization that exists solely to contribute to the improvement of the
*Manual on Uniform Traffic Control Devices* (MUTCD). The NCUTCD meets
twice a year. At each meeting, over 250 professionals representing a
wide cross-section of MUTCD users develop suggested MUTCD language,
review proposed MUTCD language published by the Federal Highway
Administration (FHWA), and/or offer recommendations to FHWA staff
related to important MUTCD issues. There are 20 individual organizations
that sponsor the NCUTCD and the total annual contribution of NCUTCD
participants exceeds 10,000 labor-hours, all of it devoted to improving
the MUTCD. The NCUTCD believes that the MUTCD benefits greatly from the
input that it provides to the FHWA.

On January 2, 2008, the FHWA published a Notice of Proposed Amendments
(NPA) to the 2003 MUTCD (FHWA Docket No. FHWA-2007-28977). This NPA was
expected, as the NCUTCD has provided input and recommended language to
the FHWA on a continuing basis since the publication of the 2000 MUTCD.
However, the NPA as published contains an extensive number of proposed
changes, perhaps more than have been proposed in any previous edition of
the MUTCD. The NCUTCD technical committee members worked diligently
during the docket comment period to review the proposed changes, and the
NCUTCD Council has approved an extensive set of docket comments in
response to the NPA (nearly 700 total pages of comments).

The NCUTCD recognizes the need to revise the MUTCD on a timely basis to
keep it up-to-date with current practices and technologies. However, the
NCUTCD also believes that it is vital that the FHWA produce an MUTCD
that is fully vetted by practitioners, even if more time is needed to
revise and republish a proposed rule. After a careful review of the NPA
and an assessment of its own docket comments, the NCUTCD believes that
the changes to the NPA will be significant and justify further review
before finalizing. In the interest of producing the best possible next
edition of the MUTCD, **the NCUTCD is recommending that the FHWA publish
a Supplemental Notice of Proposed Amendments (SNPA) on the MUTCD prior
to publication of a Final Rule.** The SNPA should incorporate the FHWA
responses to the docket comments received in response to the NPA and
provide an opportunity for the public to assess how all of the changes
to the NPA relate to each other prior to the Final Rule. The NCUTCD
offers the following reasons that support the publication of a SNPA:

-   **Economic Assessment:** The current NPA does not include a
    quantified assessment of the economic impacts of the proposed
    changes on public agencies and the private sector. It is the opinion
    of the NCUTCD that the economic impacts of the proposed changes are
    extensive and that an assessment will determine that the NPA is an
    unfunded mandate according to the Unfunded Mandate Reform Act
    of 1995. The NCUTCD recommends that the FHWA perform an assessment
    of the economic impacts of the proposed changes (after incorporating
    changes due to docket comments) and publish the assessment as part
    of the SNPA. The assessment should consider [all]{.underline}
    economic factors associated with the proposed changes, including the
    following examples:

    -   *Non-Federal-Aid Costs:* The costs of complying with the changes
        on roads that are not part of the federal-aid system and that
        are not eligible for federal reimbursement.

    -   *Local Agency Costs:* The costs to local agencies for complying
        with the changes. Although local agencies are eligible for
        federal reimbursement on federal-aid projects, local agencies
        indicate that this type of reimbursement flows through state
        agencies and may not be readily available to local agencies.

    -   *Private Sector Costs:* The costs to the private sector for
        bringing private roads, parking lots, and other private
        facilities open to public travel in compliance with the MUTCD.
        This includes privately owned toll roads, shopping center roads,
        parking lots, airports, and sports arenas. As the MUTCD has not
        previously required compliance for these facilities, this is a
        new impact on private property owners and may result in
        extensive costs to achieve compliance.

    -   *Liability Impacts:* The potential liability impacts of an MUTCD
        which is more specific than previous editions and provides less
        flexibility in adapting to the unique circumstances that may
        exist at a specific location. In assessing these costs, the FHWA
        must include the cost of meeting both standard (shall) and
        guidance (should) statements as most states treat a guidance
        statement as equal, or nearly so, to a standard statement.

    -   *Sign and Sign Infrastructure Costs:* The costs of replacing
        signs and sign support structures to accommodate the proposed
        change in minimum legibility distance (30 ft/in).

    -   *Signal Hardware Costs:* The costs of traffic signal hardware
        and the installation/maintenance aspects of signal hardware. In
        particular, the costs of implementing pedestrian countdown
        signals, 12-inch signal heads, installing additional signal
        heads as recommended/required, and relocating traffic signal
        heads to meet proposed guidelines.

    -   *Life-Cycle Costs:* The Unfunded Mandate Reform Act of 1995
        requires that costs be assessed only for the first seven years
        following a Final Rule. For many of the proposed MUTCD changes,
        the FHWA has established extended compliance dates (often longer
        than seven years). As a result, the costs of complying with a
        Final Rule are incurred beyond the time frame of the Act. The
        NCUTCD believes that the practice of extended compliance dates
        dilutes an assessment of the true costs of a Final Rule to state
        and local agencies. Accordingly, the NCUTCD requests that the
        FHWA consider the costs of implementing the proposed changes
        over the life of the devices, not just in the seven year period
        following the Final Rule.

-   **Additional Review Needed:** Several of the NCUTCD docket comments
    request that the FHWA provide more detail about a proposed change or
    that proposed changes be reorganized or reformatted. Although the
    FHWA may consider reorganizing changes as editorial, the NCUTCD
    believes that the creation of new parts or chapters in the MUTCD is
    something that should be reviewed by practitioners prior to a Final
    Rule. Likewise, the need for more information also requires
    additional review. Examples of changes that should receive SNPA
    review include:

    -   *New Part on Toll Roads:* The NCUTCD recommends that all of the
        toll road related material be moved to a new part in the MUTCD.
        This need addresses toll road issues that cut across several
        parts of the MUTCD. The combination of a new MUTCD part with
        changes in the proposed material justifies further review in a
        public forum.

    -   *Reorganized Part 3:* The proposed changes to Part 3 of the
        MUTCD will make it more difficult to use because of the large
        amount of information that is contained in individual sections
        and the difficulty in identifying related applications within
        Part 3. To address this, the NCUTCD approved a reorganization of
        Part 3. As with the toll road material, the NCUTCD believes that
        a reorganized Part 3 should be reviewed by practitioners and the
        public prior to becoming a Final Rule.

    -   *Revised Legibility Index:* The NPA includes a provision that
        the legibility index be changed to 30 ft/in. While such a change
        is desirable at the conceptual level, the FHWA has not addressed
        the application of this change on individual signs. The FHWA
        needs to provide information in a SNPA that indicates the
        impacts of this change on each sign in the MUTCD.

    -   *Lack of Research Findings:* Many of the proposed signing and
        marking changes are based on findings from the FHWA sign
        synthesis and the NCHRP marking synthesis. It is the position of
        the NCUTCD that the findings from a synthesis alone are not
        sufficient grounds for establishing a standard or guidance in
        the MUTCD. Specifying specific practices based on a synthesis
        study is different from basing the changes on research findings.
        A synthesis merely indicates what agencies are doing -- it does
        not indicate what is the best way or proper way. The FHWA should
        conduct or sponsor research to provide justification for the
        proposed changes that are based on the signing or marking
        synthesis. Such findings should be included in the SNPA or the
        recommended changes should not be included in the SNPA if there
        are docket comments that oppose the changes.

    -   *Typical Application Figures for Incident Management:* The FHWA
        chose not to include typical application figures for incident
        management in the NPA despite a recommendation from the NCUTCD
        that it be included. Other legally affected organizations also
        support including incident management typical applications in
        the next MUTCD. The FHWA should include incident management
        typical application figures in a SNPA so that they can be
        reviewed for incorporation into the next edition of the MUTCD.

    -   *Aerial Lift Bucket Vehicle Operations:* The FHWA chose not to
        include language related to Aerial Lift Bucket Vehicle
        Operations in the NPA. This activity legally affects the work of
        other agencies beyond the NCUTCD, justifying additional review.
        As with incident management typical applications, such
        guidelines should be included in a SNPA rather than waiting for
        a separate MUTCD rulemaking activity.

    -   *Traffic Signal Issues:* The NCUTCD made numerous
        recommendations for changes to the NPA regarding traffic signal
        issues, particularly with respect to: pedestrian clearance
        time/pedestrian change interval and their relation to pedestrian
        signal head and countdown displays, legal definitions associated
        with pedestrian signal symbols, traffic signal indications for
        permissive left turns, and a reorganization of Chapter 4D.
        NCUTCD recommendations for changes to the NPA related to these
        and other signal issues should be reviewed by practitioners
        before being published as a Final Rule.

-   **Extent of Proposed Changes and Expected Docket Comments:** The NPA
    contains a large number of proposed changes and is expected to
    generate significant docket comments. As a result the NCUTCD
    believes that the FHWA will need to make significant changes to the
    NPA prior to publication of a Final Rule. Because of the size of the
    NPA and the number of comments, the changes made to the NPA are
    expected to produce an MUTCD so different from the NPA version that
    it constitutes a new document. This new MUTCD should be reviewed in
    a SNPA prior to becoming a final rule. The following reasons support
    this position:

    -   *Number of Proposed Changes:* The NPA Federal Register notice
        identifies 513 individual changes that are proposed for the
        MUTCD. These 513 changes do not include many additional changes
        which seem minor, but which can have far-reaching impacts on
        public agencies. The number of identified changes is 62 percent
        higher than those identified in the NPA that resulted in the
        2003 MUTCD.

    -   *Number of Expected Docket Comments:* The current NPA has
        generated 1,279 comment letters through the end of June 2008, a
        full month before the close of the comment period. The NCUTCD
        recognizes that a large number of these comments relate to the
        RV friendly symbol or to high visibility garments for fire
        fighters. However, the large number of comments makes it
        difficult for the public to gain a sense of the content of the
        overall docket comments and indicates a high level of interest
        in the MUTCD changes. The large volume of comments also suggests
        a greater potential for changes to the NPA in response to the
        comments.

    -   *Comparison to Previous MUTCD Rulemaking Efforts:* In comparison
        to the current NPA, there were 771 letters commenting on the
        multiple NPAs that led to the 2000 MUTCD and there were 293
        letters responding to the NPA that led to the 2003 MUTCD. The
        comments generated by the current NPA are far above those of
        previous rulemaking efforts, with a month remaining in the
        docket comment period.

    -   *Timing of Docket Comments:* Of the comment letters for the 2003
        MUTCD that were submitted before the deadline, 77 percent were
        submitted in the final month of the docket period. If a similar
        trend is exhibited for the current docket, then there will be
        over 5,500 individual letters submitted to the docket. In many
        cases, a letter may contain multiple individual comments. This
        trend indicates that there is significant interest in the
        proposed MUTCD revision and that FHWA may have to make a large
        number of changes to the NPA in response to the comments.

    -   *Potential for Follow-Up Rulemaking:* Implementing changes
        without additional public review could lead to inconsistencies
        in MUTCD language and unintended consequences. It would be
        detrimental to both the FHWA and to MUTCD users to have a new
        edition of the MUTCD with inconsistencies and potentially
        conflicting information. Such problems could lead to the need to
        produce another MUTCD NPA shortly after the Final Rule to
        address the shortcomings, similar to how the NPA for the 2003
        MUTCD was published 17 months after the Final Rule for the 2000
        MUTCD. The NCUTCD believes that a SNPA would provide an
        opportunity for MUTCD users to review the changes that FHWA
        wishes to make in response to the multitude of comments, many of
        which may conflict with one another, and in so doing, avoid the
        need for a follow-up rulemaking immediately after the
        publication of a new MUTCD.

    -   *Potential for Amended Final Rule:* Publishing a Final Rule with
        errors or inconsistencies could lead to a challenge on the Final
        Rule and the potential need for an amended Final Rule. A similar
        situation occurred with the Final Rule for color specifications
        for signs and markings (Docket No. FHWA--99--6190). In that
        rulemaking effort, the FHWA published a change in the Final Rule
        that was significant and which had not been publicly reviewed.
        As a result, the FHWA had to make changes and publish an amended
        Final Rule. An amended Final Rule on the MUTCD would be
        confusing to users. Publishing a SNPA would help to minimize the
        potential for an amended Final Rule.

-   **Interconnectivity of Proposed Changes:** The MUTCD is akin to a
    spider web in that there is significant interconnectivity between
    the language in various sections, chapters, and parts. A change in
    one section may have impacts on multiple other sections throughout
    the Manual. With the expected number of changes and the potential
    differences in the comments, it is essential that a SNPA provide the
    opportunity to examine the additional proposed changes to assess
    whether they are consistent with each other.

-   **Precedent for an SNPA:** There is a precedent for issuing multiple
    proposed rules for changes to the MUTCD. The most recent example is
    the SNPA issued in response to docket comments related to minimum
    levels of sign retroreflectivity. Additionally, the FHWA published
    updated proposed rules for Parts 1, 3, 4, and 8 prior to the Final
    Rule for the 2000 MUTCD. Publishing a SNPA for the current
    rulemaking effort would not be inconsistent with previous MUTCD
    rulemaking efforts.

-   **Legal and Practical Implementation Challenges:** The MUTCD has
    always been an important document, from both a legal and practical
    perspective. However, recent changes in the Code of Federal
    Regulations (Docket No. FHWA--2005--23182) have increased the legal
    significance of the document and its application to public and
    private roads. Furthermore, the changes defining "substantial
    conformance" justifies a detailed review of the changes as state
    agencies have less discretion in adopting MUTCD changes in state
    manuals and supplements than they have had in the past. While the
    NCUTCD has performed such a review over the last six months, there
    is uncertainty over the final product. It is essential that the FHWA
    provide an opportunity for Manual users to review FHWA responses to
    the docket so that implementation and liability challenges can be
    identified, assessed, and discussed before a Final Rule is
    published.

-   **Prescriptive Nature of the NPA:** The NPA is much more
    prescriptive than previous MUTCD editions with respect to the
    specificity of the standards and guidance in the Manual. The changes
    contained in the NPA will have the effect of reducing flexibility to
    address selection, installation, operation, and maintenance issues
    and increasing the liability and risk exposure of public agencies.
    With the expectation that many docket comments will address this
    issue in general or on specific changes, the NCUTCD believes that a
    SNPA is needed to assess the FHWA response to the comments and
    evaluate the level of engineering flexibility that will be provided
    in the next edition of the MUTCD.

In summary, the NCUTCD recommends that the FHWA publish a Supplemental
Notice of Proposed Amendments for the current MUTCD rulemaking effort
for the reasons listed above. Doing so will help to produce a Manual
that best meets the needs of road users and the practitioners that are
responsible for implementing the principles contained in the document.

Robert M. Garrett

NCUTCD Executive Secretary