January 01, 2001
Millennium Edition MUTCD – Team Leader
Office of Transportation Operations (HOTO)
Federal Highway Administration, Room 3416
400 Seventh Street SW
Washington, DC 20950
Re: Statutory Speed Limit Definition – inclusion in MUTCD illegal act
Addendum 1 – Traffic Signal Warrants
Addendum 2 – “Posted or Statutory” as basis is Illegal
I received an email indicating that in the very near future there is going to be a meeting of the National Committee. Because the new edition is in its earliest stages of release, I feel it is imperative before it attains wide circulation that “Posted or Statutory”, and any reference that permits a conjecture based political decree to replace accepted practice, or an engineering study be removed. Including the definition of a Statutory Limit – a standard without foundation, that clearly fails the national uniform application test and encourages known unsafe practices.
E. The posted or statutory speed limit or the 85th–percentile speed on the uncontrolled approaches to the location.
This weekend I am working on the final draft of a legal challenge to a state statutory limit. The MUTCD is an engineering standard adopted under federal laws. I would like the referenced engineering documentation or findings that determined that returning traffic control to political conjecture on a locality by locality basis is based on an engineering finding of fact. By reading the brief you will clearly see what other legal problems this causes. Including one that your agency has violated the Administrative Procedure Act. Excerpts from Item 2. and 8. below;
2. INVENTED NUMERIC in this context of science represents in law the phrase “arbitrary and capricious”.
The NUMERIC posted on an official traffic device R2–1 Speed Limit sign, under federal law is an engineering determined regulatory value that speeds in excess of represents an unacceptable hazard to others. A well established matter of science, where the safe for conditions value is determined by site specific Basis–in–Fact finding, “after an engineering and traffic investigation has been made in accordance with established traffic engineering practices”. Without such a finding–of–fact for the particular section of highway taking into account all the conditions present, the exercise of police powers enforcing the posted regulatory value has no factual foundation.
ARBITRARY: 1, depending on individual discretion (as of a judge) and not fixed by standards, rules, or law; not restrained or limited in the exercise of power; marked by or resulting from the unrestrained exercise of power. 2 a, based on preference, bias, prejudice, or convenience rather than on reason or fact, an arbitrary standard; b, existing or coming about seemingly at random or by chance or as an unreasonable act of individual will without regard for facts or applicable law.
CAPRICIOUS: 1, governed or characterized by impulse or whim: as; lacking a rational basis; likely to change suddenly. 2, not supported by the weight of evidence or established rules of law.
Under section 706 of the Administrative Procedure Act, a court shall set aside an agency's action, findings, or conclusions determined upon review to be arbitrary. An agency finding or conclusion of lack of evidence would be arbitrary and capricious if the record afforded no substantial basis for such a finding –– Irvin v. Hobby, 131 F. Supp. 851 (1955). The 60 MPH numeric incorporated into the statute contrary to law, and is an “arbitrary and capricious” established number as is the conviction of the appellant for violating such a number.
Title 23 is a UNIFORM NATIONAL STANDARD FOR TRAFFIC CONTROL. This means a uniform national design, placement and application on all roadways in the Nation. In accord with Interstate Commerce and Title 23 provisions, uniformity within a state is not uniformity. Uniformity in application can only be achieved when like conditions in all states are treated equally, where the procedures and practices applied are the same – in compliance with the conditions precedent in the National MUTCD.
No arbitrary Nebraska specific legislated statutory speed limit can be in congruity with posted limits on like highways in Montana, Nevada, Maine, Florida, Texas etc.. Further, Title 23 requires location specific determinations because even within Nebraska, all highways under a fixed statutory invented numeric do not have the same service levels, design, development, terrain and prevailing speeds; therefore, invented statutory limits are by definition “arbitrary and capricious” law.
Moreover, highways and freedom of travel come under interstate commerce, divergent local application of police powers enforcing non–complying devices or non–standard application under the authority of a national standard rises to a violation of the motorist’s equal protection rights.
Again, in this case it is self evident how this Statutory Speed Limit inclusion is contrary to safety objectives and the law. Looking forward to hearing from you soon. Please feel free to contact me if I can be of any assistance in expediting this process.
National Motorists Association
Box 141 Zephyr Cove, Nevada 89448