[Federal Register Volume 77, Number 93 (Monday, May 14, 2012)]
[Rules and Regulations]
[Pages 28455-28459]
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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