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THE ATTORNEY GENERAL OF MARYLAND

OFFICE OF COUNSEL TO THE GENERAL ASSEMBLY

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ASSISTA.NT TTORNEY

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December 28,2016
The Honorable Roger Manno
Maryland Senate
102 James Senate Office Building
Annapolis, Maryland 21401
The Honorable Marc Korman
Maryland House of Delegates
210 House Off,rce Building
Annapolis, Maryland 21401
The Honorable Benjamin Kramer
Maryland House of Delegates
226 House Office Building
Annapclis, Maryland 2I40I
Dear Senator Manno and Delegates Korman and Kramer:

You have inquired about whether the State Highway Administration's (SHA) prohibition
against the use of pedestrian hybrid beacons in the State as provided in Chapter 4F of the Maryland
Manual of Uniform Traffic Control Devices (MdMUTCD), violates $ 25-104 of the Transportation
Article (TR). Section $ 25-104 requires SHA to adopt a State uniform trafhc control devices
manual that "correlates with and conforms to" the most recent federal Manual on Uniform Traffic
Control Devices for Streets and Highways (MUTCD), which authorizes the discretionary use of
pedestrian hybrid beacons under certain circumstances. In 2012, the Federal Highway
Administration (FHWA) reviewed the MdMUTCD, as required under federal regulations, and
determined that MdMUTCD is in substantial conformance with the current federal MUTCD. (See
attached FHWA letter of lll0lI2). As a result, the FHWA-approved MdMUTCD, which contains
a prohibition against the use of such beacons in the State, does not appear to violate the
requirements of TR $ 25-104.
Undel TR $ 25-104, SHA is required to "adopt a manual and specifications for a uniform
system of traffic control devices, consistent with the provisions of the Maryland Vehicle Law, for
use on highways in this State." The uniform system is required to "correlate with, and as far as
possible, conform to the system set forth in the most recent edition of' the federal MUTCD,
Chaptel 4F of MdMUTCD provides that: "Pedestrian Hybrid Beacons shall not be used in
Maryland."
IO4 LEGISLTIVE SERVICES BUILDING. 90 STATE CIRCLE. .NNAPOLIS, MARYLAND Z14OI.T99T
4ro-946-56oo . 3or-97o-56oo . st;r. 4to:946-56or ' rrv 4ro-946-54or . 3or-97o-t4or

The Ho.norable Roger Manno

The Honorable Marc Korman
The Honorable Benjamin Kramer
December 28,2076
Page 2

Federal regulations require that where State MUTCDs or supplements are required, "they
shall be in substantial conformance with the National MUTCD. Substantial conformance means
that the State MUTD or supplement shall conform as a minimum to the standard statements
included in the National MUTCD. 23 C.F.R. $ 655.603(b). The FHV/A Division Administrators
"shall approve the State MUTCDs and supplements that are in substantial conformance with the
National MUTCD." 1d.
Chapter 4F, Section 4F.01.02 ("Option") of the 2009 National MUTCD provides that a
pedestrian hybrid beacon "may be considered" for installation to facilitate pedestrian crossings at
a location that does not meet traffic signal warrants, or at a location that meets traffic signal
warrants, but a decision is made not to install a traffrc control device. See 2009 MUTCD with
Revisions 1 and 2, May 2012 (http://mutcd.flrwa.dot.gov/kno 2009rlr2.htm) (last visited
12120116). The MUTCD text heading of "Option," under which the above language falls, is
defined as follows:

Option - a statement of practice that is a permissive condition and carries no

requirement or recommendation. Option statements sometime[s] contain allowable
modifications to a Standard or Guidance statement. All Option statements are
labeled, and the text appears in unbold type. The verb "may" is typically used. The
verbs "shall" and "should" are not used in Option statements.
'Words,
MUTCD Section 1A.13 (Definitions of Headings,
and Phrases). The discretionary use of
pedestrian hybrid beacons is further demonstrated in the language of the "Standatd" heading for
the application of the use of the pedestrian hybrid beacons, which states that "if used," the beacons
are required to be used in conjunction with certain warning signs and markings. MUTCD Section

4F.01.03.
The FHWA guidance on MUTCD makes clear that "legal precedents have determined that
State Supplements and State MUTCDs can b more prescriptive than the national MUTCD[,]"
whioh means that a State "can prohibit the use in that State of a particular optional device.?' See
U.S. Department of Transportation, FFIWA Frequently Asked Questions - General Questions on
(last visited
the MUTCD
utcd.fhwa.dot.
12l20lr6).

In this instance, the use of pedestrian hybrid beacons is not a mandatory requirement under
the federal MUTCD, and thus a state does not appear to be required to use such devices in its State
MUTCD. Additionally, to the extent MdMUTCD's prohibition against the use of pedestrian
hybrid beacons is more restrictive than the federal MUTCD's permissive use of such beacons, it
appears that SHA is free to prohibit the use of the beacons in the MdMUTCD. In light of the

The Honorable Roger Manno

The Honorable Marc Korman
The Honorable Benjamin Kramer
December 28,2016
Page 3

discretionary use of such beacons, and the FH'WA's 2012 approval of the MdMUTCD as being in
"substantial conformance" with the 2009 federal MUTCD, the SHA's prohibition against the use
of pedestrian hybrid beacons in the State under the MdMUTCD does not appear to violate the
provisions of TR $ 25-104.

hope that this is responsive to your request.

additional infbrmation, please feel free to contact me.

If

you have any questions or need any

Sincerely,

//
M, McCoy
Assistant Attorney General
J


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of Torsportslion

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Admlnlslrollon

DelMsr Division

January 10,2012

1O

South Howard Street, Suite 2450

Baltimore, MD 21201
(410l| s62'4440
(410) e62-4054
http://www.f hwa.dot. gov/de mdd iv/

In Reply Refer Tor

HDA-MD
(830.

l)

Ms. Melinda B. Peters

State Highway Administrator
Malyland State Hi ghway Adrninis[r ation
707 North Calven Street
Baltimorc, MD 21202
Dear Ms. Peters:
'We rece.ved a lerter fronr the Myland State Highway Administration dated Januaty 3,2012,
(MDMUTCD)
requresting approval of the Maryland Manual on Uniform Traffic Control Devices
'We
have cmBleted our review and conqu that it ^s in
in accordance with 23 CFR OSi.OO(t).

substantial confbrmance with the 2009 Nacional MUTCD.

We arpreciate the SH,{ fcrr completing this work in a tmely mnner'

please contact Breck Jeffers at (410) 779-7153.

Division

lf you have any questions,