Design

Design Standards, FAST Act and Infrastructure Investment and Jobs Act Provisions

SENT BY ELECTRONIC MAIL

U.S. Department of Transportation Federal Highway Administration

MEMORANDUM

This memorandum provides guidance to FHWA Division Offices regarding provisions contained in the Bipartisan Infrastructure Law (BIL), also known as the Infrastructure Investment and Jobs Act (IIJA, Public Law 117-58), and section 1404 of the Fixing America's Surface Transportation Act (FAST Act, Public Law 114-94). These bills provide additional design flexibility to local jurisdictions developing Federal-aid projects on roadways under their ownership.

Except for the statutes and regulations cited, the contents of this document do not have the force and effect of law and are not meant to bind the States or the public in any way. This document is intended only to provide information regarding existing requirements under the law or agency policies. This guidance supersedes the October 6, 2016, memorandum "Information: Design Standards and Section 1404 of the FAST Act." ¹

FHWA encourages prioritizing the safety, comfort, and connectivity for all users of the roadway, particularly where adjacent land use suggests that trips could be served by varied modes. In general, this includes careful consideration of measures to set and design for appropriate speeds; separation of various users in time and space; improvement of connectivity and access for pedestrians, bicyclists, and transit riders; consideration of pedestrian access routes for people with disabilities; and addressing safety issues through implementation of safety countermeasures. Using an alternate roadway design guide may help some jurisdictions effectively address roadway safety concerns.

Non-NHS Roadways

Section 11129 of BIL amends section 109(o) of title 23, United States Code (U.S.C.), which is applicable to projects that are not on the National Highway System (NHS). BIL provides additional flexibilities for the design of federally funded projects on non-NHS local roadways, to the extent such flexibilities are allowable under State law.

Previously, local jurisdictions needed permission from State DOTs to use a roadway design publication other than that used by the State to design federal-aid projects not on the NHS.

However, the BIL amendment to 23 U.S.C. 109(o), codified at 23 U.S.C. 109(o)(B), now allows local jurisdictions to use a roadway design guide recognized by the FHWA and adopted by the local jurisdiction that differs from the guide used by the State for the design of non-NHS projects on roadways under the ownership of the local jurisdiction, provided that the design complies with applicable State and Federal laws. FHWA does not require local jurisdictions to obtain State approval for these alternative uses; however, such use must be permissible under State law.

The provision in 23 U.S.C. 109(o)(B) for non-NHS roadways may be implemented immediately, to the extent allowable under State law, and supersedes the conflicting regulatory provisions at title 23, Code of Federal Regulations (CFR), section 625.3(a)(4) with respect to non-NHS roadways. Local jurisdictions do not need to wait for FHWA to amend 23 CFR part 625 (Design Standards for Highways).

NHS Roadways

Section 11129 of BIL does not alter procedures for the design of local roadways on the NHS. The FAST Act section 1404(b) allows a local jurisdiction to seek approval from the State DOT to use a locally preferred roadway design guide on NHS roadways, other than Interstate roadways, owned by the local jurisdiction if the local jurisdiction is a direct recipient of Federal funds for the project. The regulations at 23 CFR 625.3(a)(4) continue to be applicable for roadways on the NHS other than Interstate roadways. As with section 11129 of BIL, the preferred roadway design guide must be recognized by FHWA and adopted by the local jurisdiction, and the design must comply with applicable State and Federal laws, including the provisions in FAST Act section 1404(b).

Section 1404(a) of the FAST Act and section 11123(d) of BIL added the following resources to the list in 23 U.S.C. 109(c)(2) that the Department of Transportation must consider in developing design criteria for the NHS:

• "The Urban Street Design Guide," published by the National Association of City Transportation Officials (NACTO);
• "The Highway Safety Manual (HSM)," published by the American Association of State Highway and Transportation Officials (AASHTO); and
• "The Wildlife Crossing Structure Handbook: Design and Evaluation in North America," published by FHWA in March 2011.

Section 1404(a) of the FAST Act also requires designs for projects on the NHS to consider all factors enumerated in 23 U.S.C. 109(c)(1)-which were optional prior to the FAST Act- including access for other modes of transportation and the cost savings that can be attained by utilizing flexibility that exists in current design guidance and regulations.

Implementation

The FHWA continues to encourage design flexibility and full consideration of community context in transportation projects. The flexibilities added by the FAST Act and BIL are specific to the use of alternate roadway design guides. The Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) is not a roadway design guide or manual. The MUTCD is incorporated by reference at 23 CFR 655.601(d) and is the national standard for all traffic control devices installed on any street, highway, bikeway, or private road open to public travel in accordance with 23 U.S.C. 109(d) and 402(a). See 23 CFR 655.603(a). The allowance for a local jurisdiction to use a federally recognized roadway design guide that differs from a state design guide does not modify the Federal requirement that all traffic control devices installed on any street, highway, bikeway, or private road open to public travel must comply with the provisions of the MUTCD or a State supplement that is in substantial conformance with the MUTCD. See 23 CFR 655.603(a)-(b).

For the purpose of implementing BIL section 11129 and FAST section 1404(b), it is important to know which alternate roadway design guides are recognized by the FHWA. The design publications that FHWA currently recognizes, in addition to those incorporated by reference at 23 CFR part 625.4, are listed on this website: https://www.fhwa.dot.gov/design/altstandards/index.cfm. This website supersedes the memorandum "Guidance: Bicycle and Pedestrian Facility Design Flexibility," published on August 20, 2013,² and the related Questions and Answers published in 2014.³ Additional national publications developed for use by jurisdictions across the country should be submitted to the Office of Infrastructure for recognition.

FHWA recognition of a roadway design guide consistent with 23 U.S.C. 109(o)(B) and FAST Act section 1404(b) and does not indicate FHWA review, approval, or adoption of the guide. Likewise, recognition of an alternate roadway design guide by FHWA does not imply that all design guidelines and standards included in the document are compliant with Federal laws and regulations, such as the Americans with Disabilities Act or the MUTCD. For example, some design features may require that the procedures for Interim Approval or Request to Experiment set forth in the MUTCD be followed. Local jurisdictions are responsible for ensuring compliance with State and Federal laws and regulations when designing and constructing projects.

If you have any questions, please contact Robert Mooney in the Office of Infrastructure at (202) 366-2221 or Lev Gabrilovich in the Office of Chief Counsel at (202) 366-3813.

¹ Available at https://www.fhwa.dot.gov/design/standards/161006.cfm.
² Available at https://www.fhwa.dot.gov/environment/bicycle_pedestrian/guidance/design_flexibility.cfm.
³ FHWA, "Questions and Answers about Design Flexibility for Pedestrian and Bicycle Facilities," (July 25, 2014), available at https://www.fhwa.dot.gov/environment/bicycle_pedestrian/guidance/design_flexibility_qa.cfm.