Originally appeared in the Urbanist. Reprinted with permission and some modifications.
|– The Manual on Uniform Traffic Control Devices (MUTCD) is an influential road design standard maintained by the Federal Highway Administration.|
– To improve safety and sustainability, the 2015 Fixing America’s Surface Transportation Act required its authors consider several documents on innovative road design.
– Despite the law, many items from the referenced documents are not reflected in the MUTCD’s proposed update. The agency has provided little clarity about why best practices are missing.
– The United States Department of Transportation’s reply to a Freedom of Information request suggests poor to non-existent notetaking on important items, with lead MUTCD staff seemingly not having read what the law directed be analyzed.
– The finding raises questions about the legality of the current rulemaking, and the agency’s ability to implement other road safety treatments in the Biden Infrastructure Bill.
“The notorious MUTCD” joked Transportation Secretary Pete Buttigieg in March. “A seemingly dry and technical thing… could actually have a lot of consequences in terms of how people get around.”
Shortly before President Trump left office, the Federal Highway Administration (FHWA), a branch of the US Department of Transportation (USDOT), proposed to update its Manual on Uniform Traffic Control Devices (MUTCD). This influential regulation controls a host of roadway elements like signs, signals and markings.
During the 2010s, when the 10th edition MUTCD was in force, the US experienced unusually poor traffic safety performance for an advanced nation. The decade ended with the COVID-19 pandemic, when fewer people drove but the total number of crashes went up. In 2020, America’s crash fatality rate ballooned to nearly six times that of Sweden. Initial data suggests deaths will again rise in the first half of 2021. Casualties have disproportionately affected Black, Latino and Native American populations, along with those who walk or bike.
Experts have linked the problem to a host of factors including land use patterns, truck and passenger vehicle safety. But in 2021, design standards received particular attention. When the MUTCD was posted on Regulations.gov, over 26,000 people commented.
Citing recent experience, Ben Cares, a Senior Planner and Project Manager in Chelsea, Massachusetts remarked he wanted “to highlight areas where frequent pedestrian activity occurs, and to signal to drivers that these roadways are not just to be used for vehicular travel.” But some parts of the MUTCD appear to treat this notion with hostility. In the proposed crosswalk section, the standard reminds designers “the right-of-way is dedicated exclusively to highway-related functions.” Those seeking to employ “aesthetic treatments… should consider whether their use or design is appropriate for the right-of-way.”
According to Cares, the MUTCD’s “outdated and under-studied regulations have led to consternation and questioning regarding the safety” of traffic calming and street beautification projects. In practice, such improvements can lead to “increased safety…visibility … and community cohesion.”
The gripe that codes sometimes stifle innovation is not new. But federal road standards were supposed to get better. This report discusses how an Act of Congress should have made the MUTCD more conducive to safe and sustainable streets. Preliminary evidence implies requirements were not implemented.
Community Oriented Transportation Standards and the FAST Act
In 2015, Congress created §1404(a) of the Fixing America’s Surface Transportation (FAST) Act. This subsection of the transportation authorization funding bill amended 23 USC 109 (c) to state, when developing design criteria for use on the National Highway System (other than the Interstate System), the Transportation Secretary, “shall consider… the publication entitled “Urban Street Design Guide” of the National Association of City Transportation Officials [NACTO].”
The amendment also strengthened existing language to require design criteria consider “access for other modes of transportation,” and the consensus of a 1998 conference on ways to “Think Beyond the Pavement.”
How does this relate to the MUTCD? The MUTCD is a design criterion used on the National Highway System (NHS). If Congress requires design criteria used on NHS roads conform to the requirements of 23 USC 109 (c), so long as FHWA continues to apply the MUTCD to the NHS, it appears these requirements are triggered.
In addition to the requirement that standards used on the NHS consider the best practice publications, 23 U.S.C. 109 is one of three laws under which the MUTCD explicitly states it derives authority from. This claim technically references paragraph (d) of 23 USC 109. However, if Congress referenced documents to consider in paragraph (c), it would seem antithetical to the intent of the law for a standard citing authority in the following paragraph to substantially conflict with the former.
On October 6, 2016, now FHWA Executive Director Thomas Everett sent an email to FHWA engineers – those who in practice manage the Secretary’s design criteria – alerting them to the need to consider items per the FAST Act.
What happened after this remains somewhat mysterious, but it does not appear requirements were heeded. In the proposed MUTCD, an array of design options and suggested changes from FAST Act sources are unexplainably absent. Some MUTCD sections even conflict with legally referenced publications, and the peer-reviewed research they cite.
Apparent Conflicts Between Context Sensitive Solutions (CSS) Reference and the MUTCD
|CSS Characteristics of Excellence||Proposed MUTCD|
|“A multi-disciplinary team is established early, with disciplines based on the needs of the specific project and with the inclusion of the public.“||Adds a new definition and emphasis on the role of the Professional Engineer. (Proposed Section 1D.05) No exception for small projects, or walking/biking paths.|
The American Society of Landscape Architects (ASLA) and Council of Landscape Architectural Registration Boards (CLARB), through attorneys VENABLE LLP, wrote a letter expressing “many concerns”, and submitted a 1,060-signature petition.
|“Context-sensitive design asks questions first about the need and purpose of the transportation project, and then addresses equally: safety, mobility, and the preservation of scenic, aesthetic, historic, environmental, and other community values.“||Introduction (Section 1C) only defines the road as a space for “vehicular travel.” Consistently emphasizes roads being designed uniformly instead of equally considering aesthetics. Crosswalk section states “Since the right-of-way is dedicated exclusively to highway-related functions, a policy for using aesthetic treatments in crosswalks should consider whether their use or design is appropriate for the right-of-way.” (Proposed MUTCD mark-up, p. 390) |
Missing Treatments That Were Required to be Considered by FAST Act Reference
A woonerf style shared space in Princeton, NJ. By designing streets to be more like driveways and patios, additional public spaces can be gained.
This treatment has been shown to reduce speeding and improve traffic safety in numerous studies.
On NACTO Street Guide p 24.
Absent from MUTCD.
|SIDEWALK LEVEL BIKEWAYS:|
By integrating cyclists with pedestrians, the hazard of driver encroachment into a bike lane can be virtually eliminated, as can the risk of colliding with a curb.
On NACTO Street Guide p 39.
Absent from MUTCD.
This design can improve street aesthetic while making walking and bicycling more comfortable, since non-motorized users do not need to go up and down at each corner. The raised entrance also acts as a natural traffic calming device.
On NACTO Streets Guide p. 97.
Absent from MUTCD.
The NACTO Streets guide describes walkability and safety reasons not to use corner ramps along major roads.
The proposed MUTCD contains many new diagrams with awkward corner ramp alignments.
Image: NACTO USDG p112 (left);
MUTCD Figures 9B-3 (right-above) and 9B-7-2 (right-below).
The NACTO Streets Guide states along larger roads “crosswalks should be the norm at intersections.” (NACTO, p 110).
Many MUTCD diagrams are missing crosswalks.
Image: Proposed MUTCD Figure 2A-3.
The Urban Street Design Guide is 193 pages long, plus it contains many independently verifiable citations in support of most treatments. It’s infeasible someone could have thoroughly checked for conflicts between it and the several hundred-page MUTCD without taking notes. Proper consideration is also a requirement of law, so decision-making should have taken place in context of some documented research or literature review.
The FHWA has so far not released any records showing what, if anything, was changed based on the legally referenced guiding documents.
To shed light on agency reasoning, I filed a filed a Freedom of Information Request (FOIA). This sought several items, including any documents “showing consideration” of the Urban Street Design Guide in MUTCD drafting.
To process the FOIA, letters of support were needed. Patrick Conlon, president of the Jersey City, New Jersey based advocacy group Bike JC wrote to FHWA, “We believe a bike-friendly city is safer for everyone. We are therefore quite concerned about the possibility that certain bike safety treatments – especially those related to complete streets and signage – may have been omitted from the MUTCD.”
Conlon went on to express alarm at “contradictions” between the MUTCD and best practice publications referenced by the FAST Act.
The initial request was sent in late February 2021, and asked documents to be delivered in advance of the May 14th comment period closure. On the morning of May 14th, Mark Kehrli, Director of the FHWA Office of Transportation Operations wrote back that they were still looking for records, something they are still apparently doing as of October. But Kehrli’s office had completed part of the search.
Concerning the bicycles section, where many of the missing treatments from the NACTO Streets Guide would go, a search for if the NACTO Guide was ever downloaded, purchased, or borrowed by the person in charge of the chapter “revealed no responsive records.” There was also no record the task of reading and evaluating the NACTO guide’s treatments was delegated to anyone else.
“We’ve known for years that the MUTCD enshrines dangerous design practices into law,” said Sara Bronin, a professor at Cornell University. “The FHWA’s latest proposed update perpetuates many of the discredited features of the current version.”
If the FHWA did not write the MUTCD in accordance with law, it’s possible the standard could be struck down in court.
Under the Administrative Procedures Act, courts may “hold unlawful and set aside agency action” which is “not in accordance with law.” They may also set aside rules drafted in a manner “without observance of procedure required by law.” When asked, Professor Bronin, who is also an attorney with expertise in federal design standards, did not want to speculate publicly on the chances that a legal challenge would succeed. Bronin, however, had no reservations about what the agency ought to do.
“The only sensible solution is to follow the science behind modern transportation research to completely overhaul the MUTCD,” she said.
“Here’s to us making strong strides this round and in future years!” remarked Dennis Markatos-Soriano, Executive Director of the East Coast Greenway Alliance. Markatos-Soriano did not directly answer if he thinks the FHWA drafted the MUTCD improperly, instead, pointing to an existing comment expressing hope the new administration would support an MUTCD overhaul because it matches their own goals.
“We respectfully request that FHWA reframe and rewrite the MUTCD… Doing so will allow FHWA and the Biden administration to make strides towards equity, sustainability, and vulnerable road user safety.”
The National Committee on Uniform Traffic Control Devices, a non-profit group that supports MUTCD development, did not respond to an emailed request for comment.