FOIA Request for Records Relating to

Proposed MUTCD 11th Edition Drafting

Scott Brody

Current as of 10/28/2021

Published By:
 FOIA Request for MUTCD Related Documents Submitted 2/28/2021 Page 1

Attn: FOIA Officer (HAD-1)

Federal Highway Administration
1200 New Jersey Ave., SE
Washington, DC 20590
Via Email Only to FOIA.Officer@dot.gov
CC Robert Mooney at Office of Infrastructure
CC Robert Black in Office of Chief Counsel

Scott Brody, EIT

RE: Freedom of Information Request for Documents Pertaining to MUTCD Drafting

_______________________________________________________________________________

Dear FHWA Staff,

The purpose of this FOIA request is to better understand the decision-making behind certain MUTCD
standards, and determine whether some items related to complete streets and signage were omitted
because the FHWA undertook a rational decision-making process, or if they simply got overlooked.
Title 23 U.S.C. 109 directs the Secretary of Transportation to ensure projects receiving funding through
the NHS:
(2) be designed and constructed in accordance with criteria best suited to accomplish the
objectives described in paragraph (1) and to conform to the particular needs of each locality.
In line with its rights and duties, the Federal Highway Administration has developed or incorporated by
reference standards in 23 CFR 625. This includes AASHTO’s A Policy on Geometric Design of
Highways and Streets alongside several other standards which predominantly pertain to disciplines of
engineering other than traffic. FHWA has also required projects on the NHS conform to the FHWA’s
own Manual on Uniform Traffic Control Devices for Streets and Highways. FHWA has not listed the
MUTCD itself as a publication in 23 CFR 625, it is instead found in 23 CFR Part 655.603, reflecting the
fact that it applies to all roadways, not just those on the National Highway System. Nonetheless, if the law
directs FHWA to do something regarding projects on the NHS, one would expect standards which apply
to both NHS and non-NHS projects would not conflict with this directive.
In 2015, Section 1404(a) of the Fixing America’s Surface Transportation Act amended Title 23 U.S.C.
109 to state the following:
(c) Design Criteria for National Highway System. -
 FOIA Request for MUTCD Related Documents Submitted 2/28/2021 Page 2

(1) In general. - A design for new construction, reconstruction, resurfacing (except for
maintenance resurfacing), restoration, or rehabilitation of a highway on the National
Highway System (other than a highway also on the Interstate System) may take into
account shall consider, in addition to the criteria described in subsection (a) -
(A) the constructed and natural environment of the area; (B) the environmental, scenic,
aesthetic, historic, community, and preservation impacts of the activity; and
(B) the environmental, scenic, aesthetic, historic, community, and
preservation impacts of the activity; and
(B) (C) cost savings by utilizing flexibility that exists in current design guidance
and regulations; and
(C)(D) access for other modes of transportation.
(2) Development of criteria. - The Secretary, in cooperation with State transportation
departments, may develop criteria to implement paragraph (1). In developing criteria under this
paragraph, the Secretary shall consider -
(A) the results of the committee process of the American Association of State Highway
and Transportation Officials as used in adopting and publishing "A Policy on Geometric
Design of Highways and Streets", including comments submitted by interested parties as
part of such process;
(B) the publication entitled "Flexibility in Highway Design" of the Federal Highway
Administration;
(C) "Eight Characteristics of Process to Yield Excellence and the Seven Qualities of
Excellence in Transportation Design" developed by the conference held during 1998
entitled "Thinking Beyond the Pavement National Workshop on Integrating Highway
Development with Communities and the Environment while Maintaining Safety and
Performance"; and
(D) the publication entitled “Highway Safety Manual” of the American Association of
State Highway and Transportation Officials;
(C)(E) the publication entitled “Urban Street Design Guide” of the National
Association of City Transportation Officials; and
(D)(F) any other material that the Secretary determines to be appropriate.
1
(emphasis original)

1 Title 23. United States Code Section 109, amended 2015. https://www.fhwa.dot.gov/design/standards/161006b.pdf
 FOIA Request for MUTCD Related Documents Submitted 2/28/2021 Page 3

In a memorandum to staff, now FHWA Executive Director Thomas Everett stated it simply:
Section 1404(a) of the FAST Act requires the Secretary of Transportation, when developing
design criteria for the NHS, to consider the Urban Street Design Guide, published by the
National Association of City Transportation Officials (NACTO), and the Highway Safety
Manual (HSM), published by the American Association of State Highway and Transportation
Officials (AASHTO), in addition to other design considerations previously contained in 23
U.S.C. 109(c)(2).2
(emphasis added)
Despite this directive, the FHWA has proposed an MUTCD, used on the NHS, which doesn’t include
very much from the Urban Streets Design Guide, or subsequent NACTO publications which expand on
this work. A few items even conflict with treatments recommended by the Urban Streets Design Guide,
and what seems to be global best practice. One would expect if an Act of Congress directed FHWA to
consider something, that consideration would be undertaken, and documented in a verifiable way. This
FOIA request seeks to determine the extent to which the MUTCD decision-making process considered
the NACTO Urban Streets Design Guide, or not. It also seeks to find out if some other standards were
based in research.
________________________________________________

2Memorandum. Design Standards and Section 1404 of the FAST Act. Thomas D. Everett. FHWA. Sent Oct 6, 2016.
https://www.fhwa.dot.gov/design/standards/161006.cfm
 FOIA Request for MUTCD Related Documents Submitted 2/28/2021 Page 10

9) Does the FHWA have any reports analyzing the potential cost burden this new trail sign
guidance directive will have on local municipalities, and agencies like the National Parks Service?
Some experts believe non-rectangular signs can facilitate better wayfinding, since the pointed end makes
it easier for people to break apart information at high speeds. In the Netherlands, standards now state
“fingerposts” are “preferred over the combined” information on a rectangle. (CROW Fietsbraad, 2016, p.
292)
To test the effectiveness of rectangles versus fingerposts, human factors research was recently done in the
Netherlands. In an October 2020 study by Lierop et. al, both pointed boards (termed Snel) and those with
a rectangular backing (termed Plus) were placed along a bicycle route. Participants had to follow the signs
to the destination, while motion sensing instruments and cameras monitored participants so that
researchers could “consistently observe micro-behaviors such as participants turning their head or slowing
down to read signage.” 23
This study supplemented other testing including with VR headsets.24
Data from field test sensors showed both signs performed well, significantly reducing the number of
times people had to stop and orient themselves compared with another set of signs that was more
designed for motorists. The section of route with pointed boards had slightly more times people got
disoriented, however this section was somewhat longer, and researchers did not report it as being
significant.
In the follow up survey, the following was stated.
The design of the “Snel” scenario was rated higher by most participants in terms of clarity and
ease of use. One reason that participants preferred the “Snel” scenario is because the arrow shape
of the signs themselves provided information about the correct route by pointing cyclists in the
right direction. Overall, during the interviews in both summer and fall, participants were asked to
rank the quality of the route on a ten-point scale…On average, the score increased from 6.5 (min
= 5, max = 7.8, S.D. = 0.75) out of ten for the original route to 7.3 (min = 5, max = 9, S.D. = 1.1)
for the concept “Plus” and 8.4 (min = 7, max = 9.5, S.D. = 0.73) for the concept “Snel”.
10) Does the FHWA have any documentation showing if the findings of Lierop et. al were
considered when proposing this rule?

23
Wayfinding for cycle highways: Assessing e-bike users' experiences with wayfinding along a cycle highway in the
Netherlands. Lierop et. al. Journal of Transport Geography, via Elsevier ScienceDirect. October 2020.
https://www.sciencedirect.com/science/article/pii/S0966692320301599#t0005
24
Wayfinding op snelfietsroutes. Breda University of Technology. Feb 2019.
https://pure.buas.nl/ws/files/1000608/Hoeke Kruijf Soemers Rapportage onderzoek wayfinding snelfietsroute
s.pdf
 FOIA Request for MUTCD Related Documents Submitted 2/28/2021 Page 12

I am requesting an exemption to the FOIA Fee because the sought records are non-commercial in nature,
and their disclosure is in the public interest.

The preferred method of delivery is electronic mail, to

Documents are requested by the end of March 2021, so that I will have time to include my analysis of
them in any MUTCD NPA comments.

I look forward to hearing from you, and using the requested records to help improve our nation’s traffic
control device standards.

Yours Truly,

/s/ Scott Brody

Feb 28, 2021
After reviewing your request, we have determined that any responsive records, if they exist, would
likely reside in the FHWA Office of Operations (HOP). Your request has been forwarded to this office
for action, and you will receive a response from HOP directly. The point of contact in HOP is Harry
Crump and he can be reached at .

Please note that the Freedom of Information Act (FOIA) provides the public the right to request access
to records from any Federal agency. The FOIA does not require agencies to answer questions or
interrogatories; analyze and/or interpret documents for a requester; create records or lists; conduct
research; initiate investigations; or provide statutes, regulations, publications, or other documents that
are otherwise made available to the public.

Under USDOT regulations at 49 C.F.R. § 7.24(a)(5), requesters should describe the record or records
sought to the fullest extent possible. In this regard, the request should describe the subject matter of
the record and, if known, indicate the date when it was made, the place where it was made, and the
individual or office that made it. Additionally, under 49 C.F.R. § 7.24(d), a request is not considered
to be a FOIA request if the record or records sought are insufficiently described such that DOT is
unable to respond as required by FOIA. Regarding Items 1, 2, and 4 of your request, it’s unclear what
you mean by “that considered the advantages or disadvantages”, “showing consideration”, or “show
consideration”. Please provide additional information clarifying the records you seek for these items.
Additionally, Items 7-11 either ask questions, or request that FHWA research an issue and provide
unspecified documents based on the outcome of that research. Because Items 7-11 do not constitute a
proper request under FOIA, they will not be considered at this time.

In your request, you state that, “I am requesting an exemption to the FOIA Fee because the sought
records are non-commercial in nature, and their disclosure is in the public interest.”

Under U.S. Department of Transportation (USDOT) regulations at 49 CFR § 7.24(b), with respect to
fees, the request must specify the fee category and support any request for fee waiver by addressing, to
the fullest extent possible, how the criteria set out in 49 CFR § 7.43(c) for establishing that the request
is in the public interest have been met, if relevant.

Under 49 CFR § 7.43(c), USDOT waives or reduces fees when the requester makes a fee waiver or
reduction request as provided in 49 CFR § 7.24(b) and establishes that disclosure of the information is
in the public interest as provided in 5 U.S.C. § 552 and this paragraph, and FHWA determines that
disclosure of the information is in the public interest and is not primarily in the commercial interest of
the requester. The requester must establish all of the following factors to DOT's satisfaction to show
that the request is in the public interest:

(1) That the subject matter of the requested records concerns the operations or activities of the
Federal Government;

(2) That the disclosure is likely to contribute to an understanding of Federal Government

operations or activities;

(3) That disclosure of the requested information will contribute to the understanding of the
public at large, as opposed to the understanding of the individual requester or a narrow segment of
interested persons (to establish this factor, the requester must show an intent and ability to disseminate
the requested information to a reasonably broad audience of persons interested in the subject);
 (4) That the contribution to public understanding of Federal Government operations or
activities will be significant; and

(5) That the requester does not have a commercial interest that would be furthered by the
requested disclosure or that the magnitude of any identified commercial interest to the requester is not
sufficiently large in comparison with the public interest in disclosure to render the disclosure one that
is primarily in the commercial interest of the requester.

Requesters should address the statutory requirements in sufficient detail for the agency to make an
informed decision as to whether it can appropriately waive or reduce the fees in question. While fee
waiver applications are to be “liberally construed” in favor of finding that requesters meet FOIA's two-
prong test, requesters still must justify their entitlement to a waiver of fees in “reasonably specific” and
“non-conclusory” terms. Conclusory statements regarding public interest do not satisfy the statutory
requirements of the FOIA.

When a requester fails to provide sufficient information for the agency to make a fee waiver decision,
the agency may defer consideration of the fee waiver request in order to ask the requester for necessary
supplemental or clarifying information. Likewise, as amended by the Open Government Act of 2007,
the FOIA expressly provides that an agency may request additional information from the requester "if
necessary to clarify with the requester issues regarding fee assessment”.

Therefore, the FHWA is placing your request on hold and deferring consideration of your fee waiver
request to allow you a reasonable amount of time to provide supplemental or clarifying information
regarding your fee waiver and Items 1, 2, and 4.

This request will not be processed further until we hear from you. If we do not hear from you within
10 business days (March 16, 2021) from the date of this notification, we will assume that you do not
wish to provide supplemental fee waiver material and the FHWA will proceed with making a
determination on your fee waiver request as it’s currently written in your February 28, 2021 request.

If you have any questions with regard to this letter, please feel free to contact me at or
FOIA.Officer@dot.gov.

Sincerely,

Daniel Olsen
Government Information Specialist

cc: HOP
FOIA Control Number:
2021-0118
In Reply Refer To: FHWA-HAD-1

Scott Brody

Daniel Olsen
Government Information Specialist
US Department of Transportation
Federal Highway Administration

Sent Electronically on 3/15/2021

RE: FOIA Request for MUTCD Documents Follow Up

Dear Mr Olsen,

I am writing in response to your request for more information to process a FOIA request. This letter also
seeks to establish that the release of the requested records is in furtherance of the public interest,
based on the factors provided in 5 U.S.C. § 552.
In my first letter, I noted how the Federal Highway Administration, who creates standards on behalf of
the Transportation Secretary, was obligated by the FAST Act §§ 1404 and 1442; 23 U.S.C. 109 to consider
the NACTO Urban Streets Design Guide, when developing standards for use on the National Highway
System. I raised suspicions, based on the content of the NPA, that this guide was not seriously taken into
consideration when developing the proposed MUTCD 11 th Edition. Because compliance with the MUTCD
is obligatory along NHS and non-NHS roads, it appears requirenments pertaining to the development of
standards used on the NHS apply to the MUTCD as well. Looking at the law’s intent, it would also appear
illogical for Congress to reference an urban street design guide in relation to highways only.
To establish the facts, items 1, 2, and 4 of my original FOIA request sought documents “that considered
the advantages or disadvantages”, “showing consideration”, or “show consideration” of several designs
found in the Urban Streets Design Guide as part of the MUTCD drafting process. You noted terms like
these are insufficiently broad in order to process a FOIA request. To clarify, I am requesting new, more
specific items that can replace my original requested items (1, 2, and 4).
You also asked who might hold the requested records, and when they were created. I believe many of
the records (if they exist) would reside in the MUTCD Working Group, particularly with Dave Kirschner.
Mr. Kirschner is responsible for MUTCD Part 9, the bicycles section. Search may be limited to the period
between when the FAST Act was signed through shortly after the NPA was released. (Dec 1, 2015
through Jan 1, 2021)
In December 2015, President Obama signed the FAST Act, which included an amendment to Section 109
of Title 23, United States Code. On October 6, 2016, now FHWA Executive Director Thomas Everett
released a memorandum posted online and emailed to staff titled “Information: Design Standards and
Section 1404 of the FAST Act” reminding FHWA engineers that the FAST Act was amended to require
consideration of the NACTO Urban Streets Design Guide, and other elements when drafting design
standards. Please furnish a record if Mr Kirchner was included in the list of employees who received the
Oct 6th email. (Amended request item (A))
Especially if they received the note about this new Act of Congress, I would hope the MUTCD team
would have begun the consideration process by reading the referenced publication. This question can be
answered simply by asking the MUTCD team members if they recall reading this almost two hundred
page book? If the answer is yes, I am interested in finding out who read it, when they read it, in what
format, and if they still have a copy of the publication (print or electronically saved). If it was saved
electronically, the file should indicate a date when it was first saved. (Item (B))
If the MUTCD Working Group is unwilling to answer questions, which is their right because FOIA does
not require an agency answer questions or interrogatives, then we will just have to search the records to
establish substantial evidence if it was read or not. I will save you the hassle of having to look up
everyone, but you should at least check the records of Mr. Kirchner, since many of the items pertain to
his section of the Manual. Narrowing the search scope to Mr. Kirchner is not intended to specifically
single him out for criticism. What Dave did or didn’t consider is believed to be an indicator of what his
colleagues managing other sections of the Manual looked at. For that matter, it could show if the
proposed rule itself gives proper consideration to what it is supposed to.
I am requesting the following:
 (C) Any record of the full PDF version of the Urban Streets Design Guide being downloaded or
saved on Mr Kirchner’s work computer
 (D) Any record of Mr. Kirshner borrowing a copy of the book (electronic or physical copy) from
the National Transportation Library. The ISBN is 9781610914949 for the hardcover and
9781610915342 for the e-book. Publisher is Island Press. The most recent edition as of 2021,
and when the FAST Act was signed, is the 2013 edition.
 (E) Any record of Mr Kirshner purchasing the Urban Streets Design Guide. The hardcover cost as
of 3/7/2021 is $55.00 plus applicable sales tax.
 (F) Any emails from Mr. Kirshner to colleagues, directing them to review the treatments in the
Urban Streets Design Guide for possible inclusion in the MUTCD bicycles section. Conversely, if
the task of reviewing the guide was delegated away from Mr. Kirshner by someone else, please
send any records of that.
If you are able to establish relevant persons read the publication, the next step is to determine the
amount of consideration that went into each treatment. I would assume, seeing the amendment to Title
23 was enacted by Congress and signed by the President himself, the FHWA would have taken the
requirement to consider this publication seriously. As such, staff members would not just have skimmed
it and arbitrarily said “I like this, I don’t like this.” Instead, there would be some level of notetaking and
research to establish what treatments are worthy of being included in the MUTCD.
Perhaps Mr. Kirshner has a folder titled something along the lines of Section 1404 Compliance. Within
this folder, he may have reports on the different treatments highlighted in the NACTO guide, particularly
the recurring themes. For instance, one subfolder might be titled Sidewalk Level Bikeways, and contain a
literature review of research on the topic, a collection of standard details from localities in and outside
the US where sidewalk level bikeways are used, a list of traffic control device questions the designs
raise, and any record of meetings between FHWA and AASTHO where they were discussed. As the new
AASHTO bike guide is expected to feature these treatments as well1, there are questions as to why the
FHWA is not harmonizing their manual with the new design philosophy at AASHTO and NACTO.
Releasing these documents (Item (G)) would be in furtherance of the public interest because it could
show if the complete streets treatments from the NACTO Guide were given proper consideration.
Moreover, in the event there was proper consideration, releasing the documented reasoning could still
serve the public interest. If FHWA actually opposes the consensus of the National Association of City
Transportation Officials, one would expect there are significant reasons why.
Unlike the MUTCD, NACTO guides and standards cite research justifying their decision-making. If the
public could have access to any FHWA research/literature reviews contradicting the Urban Streets
Design Guide, it would be useful so that city engineers, planners, and NACTO itself could identify flaws in
the streets guide, and know what treatments not to use. Absent this information, some members of the
public will remain confused about whether the proposed MUTCD contradicts the Urban Streets Design
Guide because treatments in the streets guide are no good, or if it is because FHWA didn’t substantially
consider it in the rulemaking.
If consideration was given, another reason to release the documents would be to check if FHWA
inadvertently excluded any major studies, or conversely, included any work which may have since been
debunked. Unreliable sources, sometimes outright false research, have historically been a problem in US
bikeway standards development. In 2018, Toole Design Group, who holds a research contract for the
new AASHTO Bike Guide, wrote a 21 page journal paper titled A Historical Perspective on the AASHTO
Guide for the Development of Bicycle Facilities and the Impact of the Vehicular Cycling Movement. This
report details how flawed theories on the safety of separated infrastructure were accepted by AASHTO
and other agencies in the past.2 This includes guidance opposing sidewalk level bikeways and protected
bikeways (both in the NACTO Urban Streets Design Guide), along with the related concept of protected
intersections.
I myself am conducting further research on this matter, and have identified video of an individual named
John Forester lecturing conspiracy theories to an audience about the history of cycling in Europe, and
claiming California motorists had “invented the first bike lane systems, designs, in America. The
motorists invented the bike lane system, and they invented it for their own convenience, on the excuse
that cyclists were too dumb.”3 The early all abilities bike lanes in California, which Forester claimed were
more dangerous than merging with right-turning traffic, were not in fact invented by motorists. Rather
they were installed following the advocacy of UC Davis professors Frank and Eve Childs, who had

1
Page 33. 7 Separated Bike Lanes – Some Design Elements. Sagar Onta, PE. 2018. AASHTO Bike Guide/ Update
Presentation to Western ITE.
https://www.westernite.org/annualmeetings/18 Keystone/Presentations/5B/5B.SagarOnta.AASHTO%E2%80%99s
%20%20Green%20Book%20for%20Bikes.pdf
2
A Historical Perspective on the AASHTO Guide for the Development of Bicycle Facilities and the Impact of the
Vehicular Cycling Movement. Schultheiss, Sanders, and Toole. 2018. Transportation Research Record: Journal of
the Transportation Research Board. https://doi.org/10.1177/0361198118798482 Also available at
http://tooledesign.com/wp-content/uploads/2018/10/TRB Paper18-
05962 HistoryofAASHTO BikeGuide TRB rev.pdf
3
John Forester speaks at Bicycle Transportation Engineering Google Talk. See clip at 12:40. And 17:40.
https://www.youtube.com/watch?v=SmT4x6eWDjA
themselves returned from a fact finding mission to the Netherlands.4 Mr. Forester also professed to be a
“Transportation Engineer, PE” despite never having held a lisence to practice either civil or traffic
engineering.5 This man’s work was influential in supporting the concept of lane drops, found in the soon
to be replaced AASHTO Guide, and the MUTCD itself. He is mentioned as a key influence in the AASHTO
Bike Guide history paper, and other peer reviewed publications as well.
The purpose of mentioning the above information is not to provide an all-encompassing historiography,
but rather to allow the FOIA Officer to see there is an unusual amount of discredited material circulating
in this subject area. Therefore, releasing the requested documents could serve the interest of the public
at large, because it will allow citizens to check the FHWA did not inadvertently exclude designs, like
those shown in the Urban Streets Design Guide, on account of research no longer regarded as valid.
Other Requested Items—
Besides having concerns about figures from the Urban Streets Design Guide getting excluded from the
MUTCD, I expressed concern that some figures included in the proposed manual are contrary to the
guidance found in the NACTO streets guide. Also, some of the proposed Part 9 figures have ADA
problems. Releasing drafts of the figures referenced in my previous letter’s item #5, along with a copy of
any contracts between FHWA and third party graphic designers who worked on the manual (believed to
be Kurt Lampert d/b/a KAL Graphics Design Studios Inc.) could also help fill in the picture of who worked
on what, and show if FHWA hired an illustrator experienced in street design renderings, especially the
type of urban streets and bikeways found in the NACTO guide. (original letter requested item #6)
Publishing contracts for work is also in the spirit of open government.
My original request’s item #3 seeks a copy of the unpublished FHWA research comparing different
shared streets sign types. I believe it is strange that FHWA studied an issue, came to a conclusion, and
subsequently never implemented that conclusion. Releasing this document might shed light on if shared
streets, a treatment also found in the Urban Streets Design Guide, were omitted intentionally or
because of inadvertent error. There are dozens of shared streets in the US, and this is a topic many
urban designers are interested in, both for aesthetic and traffic safety reasons. Even if it is not as
noteworthy as the issue with 23 U.S.C. 109, if shared streets were studied by FHWA and subsequently
omitted in error, I believe this would be a significant development for those in the field, thus satisfying
49 CFR § 7.43(c) FOIA processing requirenments 2 and 4, in respect to this part of my request.
I will not be challenging your agency’s decision to not consider the other requested items (7-11) from
my original letter.

4
Page 38. Fifty Years of Bicycle Policy in Davis, CA. Theodore Buehler. Transportation Research Record, Journal of
the Transportation Research Board. 2008. https://doi.org/10.3141/2074-07 PDF also available at
http://www.davishistoryresearch.org/3-authors/BuehlerThesisFinalDraft.pdf
5
2. California DCA Search. LICENSE DETAILS FOR: 236. NAME: FORESTER, JOHN. LICENSE TYPE; INDUSTRIAL
ENGINEER. s.l. : BOARD FOR PROFESSIONAL ENGINEERS, LAND SURVEYORS, AND GEOLOGISTS, 2020. Note:
Forester did obtain a PE in industrial engineering, after spending many years in the aerospace sector.
FOIA Processing Requirenments (5 U.S.C. § 552/49 CFR § 7.43(c))
As you noted, it is the duty of the requester seeking a fee waiver to establish “(1) That the subject
matter of the requested records concerns the operations or activities of the Federal Government,” “(2)
That the disclosure is likely to contribute to an understanding of Federal Government operations or
activities,” and “(4) That the contribution to public understanding of Federal Government operations or
activities will be significant.” As this request seeks to shed light on the regulatory drafting procedure, it
clearly pertains to the operations of government, and therefore complies with 49 CFR § 7.43(c) Part 1.
The FHWA’s ability, or lack thereof, to produce records showing those on the MUTCD working group
read — let alone seriously considered the Urban Streets Design Guide, is key to answering the question
if the agency complied with its duties per 23 U.S.C. 109. If FHWA did renegade, be it willfully or simply
because requirenments were overlooked, it would imply the current MUTCD rulemaking is not in
accordance with law, and FHWA might need to undertake an additional round of rulemaking (at least for
the bicycles section) which adds treatments from the NACTO Guide. This would be a significant
development regarding a topic that is already receiving media attention. Therefore, I believe 49 CFR §
7.43(c) requirenments 2 and 4 are satisfied in respect to this part of my request.
Requirement 3 is “(3) That disclosure of the requested information will contribute to the understanding
of the public at large, as opposed to the understanding of the individual requester or a narrow segment
of interested persons (to establish this factor, the requester must show an intent and ability to
disseminate the requested information to a reasonably broad audience of persons interested in the
subject);”
To disseminate the results of this request, I reached out to Streetsblog USA. Streetsblog has been ranked
by Planetizen as one of the top urban planning news websites in the country.6 Its network includes local
affiliates in New York, Massachusetts, Los Angeles, Chicago, San Francisco, Denver, and
California/Sacramento; plus StreetFilms and content sharing partnerships with others including Greater
Greater Washington/ggwash.org.
In relation to this request, Gersh Kuntzman, the National Editor in Chief informed me they have already
assigned a reporter to the matter. He wrote:
This is incredible and obviously we are interested in this information. It’s definitely in the public
interest that the government releases this — we will certainly get the information from your
FOIL (sic) request (2021-0118) to the public.
I also received a letter of support from the President of Bike JC, Patrick Conlon. Bike JC is a Jersey City
based non-profit that organizes cycling events, and advocates for safe bicycling infrastructure. In his
letter, Mr. Conlon mentions Jersey City’s Bikeway Design Guide, which includes many treatments from
the NACTO Urban Streets Design Guide, along with protected intersections from NACTO’s subsequent
Don’t Give Up at the Intersection publication. Mr. Conlon expresses concern that FHWA may not have
properly considered NACTOs guidance in drafting the new MUTCD, and states he intends to disseminate
the results of this request to members who will be commenting on the proposed rule.

6
Top Urban Planning Websites – 2017. Planetizen. https://www.planetizen.com/features/95642-top-planning-
websites-2017
A major transportation standards organization hoping to influence the Biden Administration on the
MUTCD is also supportive of this FOIA request, and will be informed of the outcome. They do not wish
to be named publicly, at this time.

Requirement number 5 is “That the requester does not have a commercial interest that would be
furthered by the requested disclosure or that the magnitude of any identified commercial interest to the
requester is not sufficiently large in comparison with the public interest in disclosure to render the
disclosure one that is primarily in the commercial interest of the requester.”

I do not have any business interests that would benefit from releasing any of the requested items. In the
future, it is possible I will mention this information in a scholarly publication or through other forms of
media. Any reputational or monetary value resulting from this is believed to be miniscule in comparison
to the magnitude of public benefit. With that, I believe all items under 49 CFR § 7.43(c) are satisfied.

I look forward to receiving the requested documents and/or finding out if they exist. If it becomes
evident that items weren’t considered which should have, it is my hope the FHWA will not view it as
adversarial, but rather see it as an opportunity to improve the MUTCD, especially considering the new
Transportation Secretary’s focus on sustainability and equity.

To assist FHWA, I am working on several diagrams depicting the seemingly missing treatments from the
Urban Streets Design Guide, along with accompanying text changes and diagrams for some other best
practices. They are designed to match the visual identity of the MUTCD, and will be included in an
upcoming comment. I also anticipate sending Mr. Kirchner a copy of the figures I drew for Part 9 in an
editable file format.

Best Regards,

Scott Brody
Professional Engineer-in-Training and Graduate Civil Engineering and Urban Planning Double Masters Student at Rutgers
University. Currently doing a thesis comparing street design standards from around the world.
FOIA Control Number:
2021-0118
In Reply Refer to:
FHWA-HAD-1

March 12, 2021

To Whom It May Concern:

Bike JC is a citizen-based non-profit advocacy organization that aims to make Jersey

City streets safe and welcoming for bicyclists by promoting bicycle infrastructure
creation, education, and group rides and events. For instance, our annual Jersey City
Ward Tour event – the largest free group bike ride in the state of New Jersey – takes
nearly 3,000 riders on a 16-mile family-friendly route through all six wards of the city. We
are bicyclists, commuters, parents, and advocates committed to working with our
neighborhoods, schools, and elected officials to make Jersey City the most bike-friendly
city in the state. 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. Jersey City has become a leader in U.S. bicycle
infrastructure. In the last several years, the city has begun to aggressively implement
safe bicycle infrastructure as part of its Bicycle Master Plan, including, for example,
separated bike lanes and protected intersections. The designs for these safe new
infrastructure elements were informed by Jersey City’s Bikeway Design Guide, which
compiles best-practice design elements that have proven to increase safety and access
for all street users. NACTO’s Urban Street Design Guide heavily shaped this guiding
document and Jersey City’s resulting bicycle infrastructure thus far. However, the
MUTCD seemingly conflicts with NACTO’s striping and geometry design standards for
many of the critical bicycle infrastructure elements in Jersey City’s Bicycle Master Plan.
These contradictions will serve as unnecessary hurdles in the design and approval
processes and will hinder Jersey City’s ability to implement its all-ages/abilities bikeway
network moving forward.

As an advocacy organization, we seek to inform our community about bicycle and

pedestrian-related actions at the local, state, and national level. We therefore intend to
advise our members to comment on the proposed MUTCD design standards and rules,
as they are likely to affect local plans for bicycle infrastructure in Jersey City. The
information contained in this FOIA request will thus directly benefit our community by
helping them to better understand the MUTCD design options, and ultimately offer more
thorough and informed comments.

We kindly ask that you provide the requested information. Doing so will help advance
our nation’s bicycle safety design standards, ensuring that cities like Jersey City can
continue to make progress on this critical front.

Sincerely,

Patrick Conlon
Bike JC - President
BikeJC.org
 Robert Goodacre
Government Information Specialist

cc: FHWA Office of Operations (HOP)

TO: FOIA Office FROM: Scott Brody, EIT
US Department of Transportation
Federal Highway Administration

FOIA Control Number: 4/5/2021

2021-0118 and 2021-0129
In Reply Refer To: FHWA-HAD-1

RE: Request for Expedited Processing

Dear USDOT FOIA Staff,

I am writing to request part of my FOIA request receive expedited processing.

On February 28th, I sent a request seeking documents related to the proposed Manual on Uniform
Traffic Control Devices. To understand if the proposed rule gives proper consideration to the NACTO
Urban Streets Design Guide, as required by 23 USC 109, I requested records of documentation showing
consideration of the Urban Streets Design Guide in MUTCD drafting. Daniel Oleson noted such a request
is insufficiently broad. Therefore, I filed a reply which was given a new control number (2021-0129).

As many of the treatments relate to bicycles, my 3/15/2021 reply sought records if Dave Kirchner, who
is in charge of the MUTCD bicycles section, had ever downloaded, purchased, or borrowed a copy of the
Urban Streets Design Guide, in either print or electronic form. I also sought emails to/from Mr. Kirchner
related to the Urban Streets Design Guide, and any notes he or others delegated the task of reviewing
the guide might have taken while reading. Other items in my request relate to the MUTCD, but are more
technical in nature. I am not seeking expedited processing for those.

Expedited processing is sought because the listed records pertain to a rule which is open for public
comment until 5/14/2021. The records will shed light on the extent to which the proposed rule
considers what it is supposed to. Therefore, it will enable the public to write better comments. Many
interested parties have already submitted comments, but sharing the requested records while the
docket is still open will help ensure the public has access to adequate information when commenting.

I understand expediting one individual’s FOIA request can delay processing of other’s requests. But this
is a time sensitive matter, and the records which I am seeking expedited processing should not take long
to compile. As a matter of fairness, if your agency wishes to delay processing other portions of my
request in exchange for prioritizing these items, I would not object.

Documents are requested by Friday April 23, so that the reporter at Streetsblog have time to write a
story, and members of the public will have some time to comment before the deadline.

Thanks

/s/ Scott Brody

 2

1. A record if Mr. Dave Kirschner was included in the list of employees who received the
email from FHWA Executive Director Thomas Everett dated October 6, 2016.
2. Any record of the full PDF version of the Urban Streets Design Guide being downloaded
or saved on Mr. Kirschner’s work computer.
3. Any record of Mr. Kirschner borrowing a copy of the book from the National
Transportation Library.
4. Any record of Mr. Kirschner purchasing the Urban Streets Design Guide.
5. Any emails from Mr. Kirschner to colleagues, directing them to review the treatments in
the Urban Streets Design Guide for possible inclusion in the MUTCD bicycles section.
6. Copies of any contracts between FHWA and third-party graphic designers who worked
on the manual, believed to be Kurt Lampert of KAL Graphics Design Studios Inc.

On April 5, 2021, you submitted a request for expedited processing for items 2-5 as described in
your March 15, 2021 clarification response. Your request for expedited processing is hereby
granted. Additionally, your request for a fee waiver is granted based on the additional
information you provided on March 15, 2021.

This letter is a partial response to your FOIA request. In response to your request for expedited
processing for items 2-5, a search for records located in the Office of Operations (HOP) has
revealed no responsive records. The Freedom of Information Act only applies to records already
in existence and does not require an agency to create, compile, or obtain from records outside the
Department, or answer questions presented as FOIA requests.

Please be assured that the FHWA will continue to work on the response to your FOIA request.
You will receive additional records responsive to your request and/or an additional response as
soon as the FHWA completes its review and any records become available. As this is the first
interim response, we refrain from providing appeal rights at this time. Appeal rights will be
provided with the final response. Finally, you may narrow the scope of your FOIA request so
that it may be processed more quickly. If you have any questions, wish to discuss reformulation
of your request or narrowing the scope of your request, please contact Harry Crump at
or by telephone at

Sincerely,

Mark Kehrli
Director, Office of
Transportation Operations
 End of Documents

*One communication in these documents makes reference to plans for this story to be published in Streetsblog. The article
publisher was subsequently changed to The Urbanist.