[Federal Register Volume 72, Number 245 (Friday, December 21, 2007)]
[Rules and Regulations]
[Pages 72574-72582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-24683]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 655
[FHWA Docket No. FHWA-2003-15149]
RIN 2125-AE98
National Standards for Traffic Control Devices; the Manual on
Uniform Traffic Control Devices for Streets and Highways; Maintaining
Traffic Sign Retroreflectivity
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: The Manual on Uniform Traffic Control Devices (MUTCD) is
incorporated by reference in 23 CFR part 655, subpart F, approved by
the Federal Highway Administration, and recognized as the national
standard for traffic control devices used on all public roads. The
purpose of this final rule is to revise standards, guidance, options,
and supporting information relating to maintaining minimum levels of
retroreflectivity for traffic signs on all roads open to public travel.
EFFECTIVE DATE: This final rule is effective January 22, 2008. 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
January 22, 2008.
FOR FURTHER INFORMATION CONTACT: Ms. Mary McDonough, Office of Safety
Design, (202) 366-2175, or Mr. Raymond W. Cuprill, Office of the Chief
Counsel, (202) 366-0791, U.S. Department of Transportation, Federal
Highway Administration, 1200 New Jersey Ave., SE., Washington, DC
20590. Office hours are from 7:45 a.m. to 4:15 p.m., E.T., Monday
through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
This document, the notice of proposed amendments (NPA), the
supplemental notice of proposed amendments (SNPA), 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 under the help section of the Web site.
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
and the Government Printing Office's Web page at: http://www.access.gpo.gov/nara.
Background
On July 30, 2004, at 69 FR 45623, the FHWA published in the Federal
Register a NPA proposing to amend the MUTCD to include methods to
maintain traffic sign retroreflectivity. The NPA was issued in response
to section 406 of the Department of Transportation and Related Agencies
Appropriations Act, 1993 (Pub. L. 102-388; October 6, 1992). Section
406 of this Act directed the Secretary of Transportation to revise the
MUTCD to include a standard for minimum levels of retroreflectivity
that must be maintained for traffic signs and pavement markings, which
apply to all roads open to public travel. The FHWA is currently
conducting research to develop a standard for minimum levels of
pavement marking retroreflectivity. The FHWA expects to initiate the
pavement marking retroreflectivity rulemaking process once the research
is concluded and the results are analyzed and considered.
The FHWA has led a significant effort toward establishing minimum-
maintained levels of sign retroreflectivity since the statute was
issued in 1993. Three national workshops were held in 1995 to educate
State and local highway agency personnel and solicit their input
regarding an initial set of minimum maintained sign retroreflectivity
levels. In 1998, FHWA published revisions to initial research
recommendations on minimum sign retroreflectivity levels \1\ noting
that additional work would be needed because the National Highway
Traffic Safety Administration was also revising the Federal Motor
Vehicle Safety Standard Number 108 Lamps, Reflective Devices, and
Associated Equipment (FMVSS 108). The additional research was completed
in 2003, at which time FHWA began preparing the NPA for traffic sign
retroreflectivity for the MUTCD, which was published in 2004.
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\1\ A copy of ``An Implementation Guide For Minimum
Retroreflectivity Requirements for Traffic Signs,'' dated April 1,
1998, can be found on the Docket Management System (FHWA-2003-15149-
229) for this ruling at the following Web address: http://dms.dot.gov/search/document.cfm?documentid=467771&docketid=15149.
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After considering and analyzing the comments on the NPA for minimum
levels of retroreflectivity for traffic signs, FHWA decided to publish
a supplemental notice of proposed amendments (SNPA). In particular, the
SNPA was developed to address comments to the docket that: (1)
Expressed concern that the NPA proposal did not meet the intent of the
1993 statute, (2) suggested that the table of minimum retroreflectivity
levels should be placed in the MUTCD, (3) requested clarification of
the compliance period, and (4) expressed concern about the resource
requirements for complying with the rulemaking. The proposed MUTCD text
in the SNPA included a STANDARD statement that required that a method
be used to manage and maintain retroreflectivity and required that sign
retroreflectivity be maintained at minimum levels. It also included the
table of minimum retroreflectivity levels in the MUTCD. These changes
were significant enough to warrant an SNPA to allow FHWA to obtain and
assess additional public comments. The SNPA was published on May 8,
2006, at 71 FR 26711. The comment period for the SNPA ended on November
6, 2006.
Based on the comments received and its own experience, FHWA is
issuing this final rule establishing the minimum levels of
retroreflectivity that must be maintained for traffic signs. The FHWA
is designating the MUTCD, with these changes incorporated, as Revision
2 of the 2003 Edition of the MUTCD.
The text of this Revision No. 2 and the text of the 2003 Edition of
the MUTCD with Revision No. 2 final text incorporated are available for
inspection and copying as prescribed in 49 CFR
[[Page 72575]]
part 7 at the FHWA Office of Transportation Operations. Furthermore,
final Revision No. 2 changes are available on the official MUTCD Web
site at http://mutcd.fhwa.dot.gov. The entire MUTCD text with final
Revision No. 2 text incorporated is also available on this Web site.
Summary of Comments
The FHWA received 121 letters submitted to the docket in response
to the SNPA containing approximately 550 individual comments. The FHWA
received comments from the National Committee on Uniform Traffic
Control Devices (NCUTCD), the American Association of State Highway and
Transportation Officials (AASHTO) and 20 State Departments of
Transportation (DOT) members of AASHTO, the National Association of
County Engineers (NACE) and seven county association members of NACE,
city and county governmental agencies, consulting firms, private
industry, associations, other organizations, and individual private
citizens. The FHWA has considered all these comments. Docket comments
and summaries of FHWA's analyses and determinations are discussed
below. General comments are discussed first, followed by discussion of
major issues and adopted changes, and finally, discussion of other
comments.
Discussion of General Comments
Many respondents agreed with the intent and the concepts proposed
in both the NPA and the SNPA. In analyzing the comments to the SNPA,
FHWA decided that additional clarification should be provided in the
MUTCD text and in the explanations provided in the final rule in order
to address the following five major issues:
(1) Clarification of compliance period;
(2) Resource burdens on public agencies;
(3) Statutory requirements;
(4) Table of minimum retroreflectivity levels in the MUTCD; and
(5) Impacts of sign retroreflectivity on safety.
Discussion of Major Issues
This section provides a discussion of each of the five major issues
raised by commenters in response to the SNPA, along with FHWA's
analysis and resolution.
(1) Clarification of the compliance period.
Several county associations and many county and local officials
requested an extension from 2 to 4 years for the compliance period for
the establishment and implementation of a method to maintain sign
retroreflectivity, in order to accommodate their programs within their
2-year budget cycles. There were also a few requests to extend the 7
and 10 year compliance periods for the signs themselves.
Considering the comments regarding budget cycles, particularly
budget cycles for local agencies, FHWA has extended to 4 years the
compliance period for establishing and implementing a sign assessment
or management method to maintain minimum levels of sign
retroreflectivity. This extended compliance period will allow
transportation agencies to make allowances for budgets (including
working with the States or regional organizations) to access funds and/
or partnerships to achieve the minimum levels of sign
retroreflectivity.
The 7 and 10 year compliance dates for minimum levels for sign
retroreflectivity will remain 7 years for regulatory, warning, and
ground-mounted guide signs and 10 years for street name and overhead
guide signs, because these compliance target dates correspond to the
normal expected service life of sign sheeting and will allow highway
agencies to make the proper accommodations in their efforts to maintain
minimum retroreflectivity levels. The 7 and 10 year compliance dates
are counted from the effective date of this rule and are not in
addition to the 4-year period for establishing the methods.
(2) Resource burdens on public agencies.
While the Minnesota DOT (MNDOT) recognized that the proposed
language would impose additional time and resource burdens on public
agencies, it did not perceive this rule as an ``unmanageable burden.''
Several sign manufacturers and some private citizens appreciated the
FHWA's effort to point out that Federal funds are available for up to
100 percent funding of ``replacement of signs in this program.'' In
addition, the American Traffic Safety Services Association (ATSSA), the
American Automobile Association (AAA), the American Association of
Retired People (AARP), the American Highway Users Alliance (AHUA), and
several private citizens agree that the benefits from this rulemaking
will outweigh the costs that agencies may experience. However, AASHTO,
NACE, and several State and local DOTs believe that the requirements,
as proposed in the SNPA, are an unfunded mandate with serious financial
implications to their agencies.
The FHWA conducted a study to determine if unfunded mandates, as
defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109
Stat. 48, March 22, 1995), would be imposed by including requirements
in the MUTCD for minimum maintained traffic sign retroreflectivity
levels.\2\ Based on the analysis, this rulemaking effort does not
impose an unfunded mandate. Additionally, because Federal-aid highway
dollars are often provided to States to use for these types of sign
replacements, this requirement does not rise to the level of an
unfunded mandate.
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\2\ ``Maintaining Traffic Sign Retroreflectivity: Impacts on
State and Local Agencies,'' Publication No. FHWA-HRT-07-042, dated
April 2007, is available at the following Web address: http://www.tfhrc.gov/safety/pubs/07042/index.htm.
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One commenter reviewed the FHWA's report ``Maintaining Traffic Sign
Retroreflectivity: Impacts on State and Local Agencies (DRAFT)''
(1994--15149-06), and suggested that perhaps there was a mathematical
error in that report that would mean that the costs incurred by
agencies when replacing signs would be above those that can be required
from agencies without funding. The FHWA has updated the 1994 draft
report with a 2007 version (see footnote 2). The updated
report now includes the costs of overhead and street name signs, which
the 1994 version excluded. The updated report concludes that the
national impact of including the minimum maintained traffic sign
retroreflectivity levels in the MUTCD is approximately $37.5 million
over a 10-year implementation period, with a maximum annual impact of
$4.5 million in years 1 through 7. This is below the annual $128.1
million unfunded mandate level.
The FHWA has also provided ample phase-in time for agencies to
comply. Agencies are already required to have a highway safety program
that includes provisions for the upgrading of substandard traffic
control devices and installations to achieve conformity with the MUTCD,
so this rulemaking does not create additional burdens.
While many counties believe that FHWA should consider a funding
stream directly to local jurisdictions for rulemaking activities such
as minimum retroreflectivity standards, such funding stream discussions
are outside the scope of this rulemaking. Signing programs remain
eligible for Federal-aid highway dollars.
(3) Statutory requirements:
Several organizations representing highway users from a safety
perspective agree that the language proposed in the SNPA satisfied the
statutory requirements to establish a standard for the minimum levels
of sign
[[Page 72576]]
retroreflectivity; however, AASHTO, and several States, commented that
Congress did not explicitly indicate that the minimum values for
maintaining sign retroreflectivity had to be included in the MUTCD as a
Standard. Alternatively, the Advocates for Highway and Auto Safety
(AHAS) believe that the language proposed in the SNPA still did not
fully satisfy the statutory requirements, which AHAS interprets as
requiring the establishment of specific and mandatory minimum levels of
retroreflectivity for signs and pavement markings in the MUTCD and an
obligation on State and local authorities to maintain those specific
minimum values of retroreflectivity. AHAS stated that the intent can
only be met by including such requirements in a ``standard'' statement
in the MUTCD, which is defined as one of the ``required, mandatory, or
specifically prohibitive practice regarding a traffic control device.''
The FHWA includes the reference to minimum levels for sign
retroreflectivity in a Standard statement because the statute requires
the Secretary to revise the MUTCD to include a standard for minimum
levels of retroreflectivity that must be maintained for traffic signs.
Under the MUTCD's current organization, the best way to do this is by
including it in a STANDARD statement, because Standards represent
requirements.\3\ In addition, the congressional reference to a standard
did not exclude the use of GUIDANCE, OPTION, and SUPPORT statements to
help clarify the STANDARD statement of required minimum levels of
retroreflectivity that must be maintained, similar to the other
sections of the MUTCD.
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\3\ In the context of this final rule, the definitions of
STANDARD and GUIDANCE are identical to the definitions provided in
the Introduction of the MUTCD (http://mutcd.fhwa.dot.gov).
Specifically, a STANDARD is a statement of required, mandatory or
specifically prohibitive practice regarding a traffic control
device, while a GUIDANCE is a statement of recommended, but not
mandatory, practice in typical situations, with deviations allowed
if engineering judgment or engineering study indicates the deviation
to be appropriate.
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The FHWA also received comments from the city of Plano, Texas, and
the Illinois County Engineers expressing a concern and/or confusion
that the language proposed in the SNPA ``imbedded'' a GUIDANCE
statement within a STANDARD, because the STANDARD statement referenced
the GUIDANCE statement for minimum retroreflectivity levels.
Based on this concern, and to clarify FHWA's intent, FHWA revises
the STANDARD statement to explicitly reference Table 2A-3 Minimum
Maintained Retroreflectivity Levels, which contains minimum-maintained
retroreflectivity levels for various sign color combinations and types
of sign sheeting.
The National Association of Counties (NACo) and NACE suggested
adding ``recommended'' before ``minimum level'' in describing the
retroreflectivity levels shown in Table 2A-3. The FHWA retains the
wording ``minimum level'' in describing the levels shown in Table 2A-3,
because the word ``recommended'' is not appropriate when referencing a
Standard.
(4) Table of minimum retroreflectivity levels in the MUTCD.
The ATSSA, AAA, AARP, AHUA, Minnesota and Virginia DOTs, the city
of Plano, Texas, sign manufacturers, and many private citizens were in
favor of including the table of minimum retroreflectivity levels in the
MUTCD. However, many organizations, such as AASHTO, NACo, NACE, and
numerous State DOTs, as well as county and local agencies were opposed
to the inclusion of the table. Those who opposed including the table in
the MUTCD expressed concern over potential litigation that could be
brought against public agencies if an individual sign within their
jurisdiction was to fall below the minimum maintained levels in the
table. The NCUTCD also commented that before any table is inserted into
the MUTCD, FHWA should provide substantial clarification regarding the
process and frequency for updating or changing the table of
retroreflectivity values.
The FHWA believes that including this table in the MUTCD is
necessary to satisfy the statutory requirement that the MUTCD be
amended to include minimum retroreflectivity levels. Therefore, the
FHWA includes Table 2A-3, titled ``Minimum Maintained Retroreflectivity
Levels'' in the MUTCD. The FHWA also believes inclusion of the table
will provide clarity and convenience to the users of the MUTCD. In
response to the request by the NCUTCD that FHWA clarify the process for
updating or changing values in the table, we note that updates or
changes to the table would be subject to a public rulemaking process
before FHWA could adopt changes to the values of the table in the
MUTCD. This process will include notice and opportunity for comment by
the public.
Table 2A-3 will be included in the MUTCD as follows (note that the
values in this table have not changed during the rulemaking process):
[[Page 72577]]
[GRAPHIC] [TIFF OMITTED] TR21DE07.010
BILLING CODE 4910-22-C
[[Page 72578]]
The FHWA received comments from NACo, NACE and several local
agencies that suggested adding a statement clarifying that all signs
need not meet the minimum retroreflectivity values at every point in
time.
Considering these comments in conjunction with FHWA's understanding
that there will be cases where vandalism, weather, or damage due to a
crash influences the visibility of a sign, the FHWA clarified the
SUPPORT statement in Section 2A.09. The revised statement clarifies
that an agency or an official having jurisdiction would be in
compliance with the Standard even if there are some individual signs
that do not meet the minimum retroreflectivity levels at a particular
point in time, provided that an assessment or management method
implemented in accordance with Section 2A.09 of the MUTCD is being
used.
The FHWA also received comments from NACo, NACE and several local
agencies stating specific concerns that the establishment of specific
retroreflectivity values within Table 2A-3 will become ``the de-facto
standard'' that will be used against highway agencies in tort claims
and lawsuits.
The FHWA believes that the selection of a reasonable method for
maintaining sign retroreflectivity and strict adherence to the same
might serve to defend highway agencies in tort liability claims and
litigation. Public agencies and officials that implement and follow a
reasonable method in conformance with the national MUTCD would appear
to be in a better position to successfully defend tort litigation
involving claims of improper sign retroreflectivity than jurisdictions
that lack any method. In addition, as a result of adding clarifying
language to the Support statement indicating that once an assessment or
management method is used by an agency or official having jurisdiction,
agencies would be in compliance with the STANDARD even if some
individual signs do not meet the minimum retroreflectivity levels at a
point in time.
Including Table 2A-3 in the MUTCD does not imply that an agency
needs to measure the retroreflectivity of every sign in its
jurisdiction. Instead, agencies must implement methods designed to
provide options on how to maintain the minimum retroreflectivity
levels, using the criteria in Table 2A-3.
(5) Impacts of sign retroreflectivity on safety.
The ATSSA and several sign manufacturers believe there is a proven
link between maintained sign retroreflectivity and safety, especially
as it relates to older drivers. In addition, several citizens believe
that improved retroreflectivity will lead to safer roads. One citizen
who worked for several years in the field of nighttime visibility
stated that his research with actual drivers on the road showed
conclusive results that greater levels of retroreflectivity increase a
driver's ability to be warned well in advance of a traffic situation or
pedestrian encounter. The North Carolina DOT (NCDOT) and the AHAS,
however, recommend that further FHWA studies be done to demonstrate
that retroreflective improvements translate into safety improvements.
The FHWA believes that improving sign retroreflectivity will be a
benefit to all drivers, including older drivers. All drivers need
legible signs in order to make important decisions at key locations,
such as intersections and exit ramps on high speed facilities. This is
particularly true for regulatory and warning signs. This is fundamental
to safe driving, and the lack of uniform retroreflectivity standards
has led to wide variations in maintenance levels of these critical
signs. As discussed in the SNPA, there have been some investigations
that demonstrate potential safety benefits of upgrading sign
materials.\4\ More importantly, maintaining sign retroreflectivity is
consistent with one of FHWA's primary goals, which is to improve safety
on the Nation's streets and highways. Improvements in sign visibility
will also support FHWA's efforts to be responsive to the needs of older
drivers, which is important because the number of older drivers is
expected to increase significantly in the next 30 years.
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\4\Supplemental Notice of Proposed Amendments, page 26717. The
SNPA was published on May 8, 2006, at 71 FR 26711. This notice can
be found at: http://www.gpoaccess.gov/fr/retrieve.html and on the
Docket Management System (FHWA-2003-15149-229) for this ruling at
the following Internet Web site: http://dms.dot.gov.
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Discussion of Other Comments
In addition to the five major issues discussed in the previous
section, FHWA also received comments that can be grouped into the
following three topics:
(6) Assessment methods;
(7) Blue and brown signs; and
(8) Minimum retroreflectivity levels.
This section contains a discussion of each of these topics.
(6) Assessment methods:
The FHWA received comments from the AASHTO, NCUTCD, ATSSA, AHAS,
AAA, AARP, AHUA, ARTBA, Maryland and Wisconsin DOTs, and several
counties in Illinois regarding the assessment and management methods
for maintaining sign retroreflectivity as proposed in the GUIDANCE
statement of the SNPA. The AASHTO and several State DOTs did not
support actual measurement of signs as one of the methods, but
supported visual nighttime inspections, blanket replacement, control
signs, and expected sign life methods.
The city of Plano, Texas and a private citizen suggested that the
numerical values in Table 2A-3 should only apply to Method B: Measured
Sign Retroreflectivity. Those commenters suggested that for all other
methods where subjective judgment is used, such as visual nighttime
inspection, the table should serve as guidance for local offices to
reject and accept signs.
Finally, the NCUTCD, the Illinois Association of County Engineers,
and the DeWitt County, Illinois Highway Department suggested adding
additional language to the GUIDANCE statement to explicitly, rather
than implicitly, state that other assessment methods based on
engineering study can be used to assess sign retroreflectivity.
The FHWA believes that the final rule provides several assessment
or management methods that agencies can choose from, based on the
method that best fits the agencies' resources and needs. An agency can
choose to use either assessment methods or management methods, or a
combination; however, agencies should develop a method in such a way
that it corresponds to the values in Table 2A-3. The methods have been
developed to provide flexibility for agencies for addressing their
local conditions. To address the comments received regarding the types
of assessment methods that should be used, FHWA clarifies the GUIDANCE
statement by adding a sixth method to the list of assessment or
management methods titled ``Other Methods,'' which explicitly states
that other methods developed based on engineering studies can be
used.\5\
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\5\ As defined in the MUTCD, an engineering study shall be
performed by an engineer, or by an individual working under the
supervision of an engineer, through the application of procedures
and criteria established by the engineer. An engineering study shall
be documented. In accordance with the text heading GUIDANCE in the
MUTCD, deviations to a recommended practice are allowed if
engineering study indicates the deviation to be appropriate.
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(7) Blue and brown signs:
In the SNPA, FHWA asked for comments on the need for
retroreflectivity levels to be developed for signs with blue and brown
[[Page 72579]]
backgrounds.\6\ The Maryland State Highway Administration suggested
that recommended minimum retroreflectivity levels be established for
blue-background signs and that those levels apply to certain signs such
as Hospital, EMS, Ambulance Station, and Emergency Medical Care signs,
whose nighttime readability can be important. The combined letter from
a representative of AAA, AARP, and AHUA, and one comment letter from a
sign manufacturer stated that blue and brown signs are intended for use
both day and night, and that motorist safety, particularly for older
drivers, would be enhanced by including minimum retroreflectivity
levels for blue and brown signs. The commenters acknowledged that if
blue and brown signs are being excluded because there is a lack of data
on which to base a requirement, a ``placeholder'' could be included in
the MUTCD until more data is available and the table of minimum levels
can be updated.
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\6\ Blue signs are generally described as informational signs,
and include evacuation route and road user signs. Examples include
hospital, specific service signs (food, gas, lodging, camping, and
attraction) and tourist-oriented directional signs. Brown signs,
which are also informational signs, are primarily recreational and
cultural interest area signs.
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The FHWA is currently studying blue and brown minimum sign
retroreflectivity levels. Because the study has not been finalized and
FHWA did not analyze the costs associated with the sign
retroreflectivity of blue and brown signs in the economic impacts
study, minimum retroreflectivity levels for blue and brown signs are
not included in the MUTCD at this time. At the conclusion of FHWA's
study on this topic, the results may indicate a need to pursue such a
requirement. If so, updates or changes to Table 2A-3 would be subject
to the public rulemaking process before FHWA could add blue and brown
minimum retroreflectivity levels.
(8) Minimum retroreflectivity levels:
Several of the commenters, including AASHTO, NACE, the Illinois and
Indiana Associations of County Engineers, DeWitt County, Illinois
Highway Department, the North Carolina DOT and the Maryland State
Highway Administration suggested that the data within the table were
not precise, and reflected data that were developed based on
assumptions and varying characteristics.
The FHWA acknowledges that the data are based on some assumptions
and varying characteristics; however, they are based on the latest
science and empirical-based research emphasizing older drivers.\7\ The
supporting research reflects the best information at this time. One of
the key aspects to the research supporting the minimum
retroreflectivity levels is that it was based on field studies under
conditions on a closed course facility that represented real roadway
scenarios to the maximum extent possible without jeopardizing safety.
Research subjects were recruited and participated in the research,
which ultimately developed cumulative distribution profiles for
luminance levels needed to accommodate the legibility of older drivers.
These luminance levels were then used in conjunction with computer
modeling to determine the retroreflectivity needed under a variety of
roadway conditions. The computer modeling allows analyses of an
infinite set of roadway scenarios, but is based on the luminance levels
derived through the human factors research supported by FHWA.
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\7\ Carlson, P.J. and H.G. Hawkins. Minimum Retroreflectivity
Levels for Overhead Guide Signs and Street-Name Signs. FHWA-RD-03-
082. U.S. Department of Transportation, Federal Highway
Administration, Washington, DC. This document is available at the
following Web address: http://www.tfhrc.gov/safety/pubs/03082/index.htm.
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After the research was completed, FHWA held national workshops,
which included nighttime inspections of signs at various
retroreflectivity levels. The participants of the workshops evaluated
the signs at night using a visual inspection technique. The results of
this effort helped confirm that the minimum retroreflectivity levels in
Table 2A-3 are appropriate.
The NCDOT suggested that a tiered system be applied to the
retroreflectivity levels, similar to the tiered system used for letter
heights and sign sizes based on roadway classification.\8\ The NCDOT
commented that retroreflective sign applications for lower speed, lower
volume roads should be coordinated with lower retroreflectivity values.
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\8\ Part 2 of the MUTCD includes a table titled, ``Table 2B-1
Regulatory Sign Sizes'' that includes sign sizes for conventional
roads, expressways, freeways, and oversized as well as minimum sign
sizes. Generally, sign sizes for conventional roads are smaller than
those for expressways or freeways.
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The FHWA believes that the values shown in the table are applicable
to all classifications of roads, including lower volume and slower
speed roadways. The retroreflectivity levels are based on the
legibility design threshold level as specified in Section 2A.14 of the
MUTCD (40 feet of legibility per inch of letter height). Therefore, the
size of the sign, and the message on the sign, play a key role in the
retroreflectivity levels. Smaller signs have smaller messages, which
mean drivers need to be closer to the signs to read them. As the
distance between the sign and the vehicle decreases, the efficiency of
retroreflectivity materials generally decreases, meaning that more
retroreflectivity is needed. This often outweighs the increased
illumination available from the vehicle headlamps. The minimum
retroreflectivity levels were designed to be easy to implement, without
added complexities such as a tiered system based on letter heights and
sign sizes. However, with the proper support (i.e., an engineering
study), and using the values in Table 2A-3 as minimum maintained
retroreflectivity levels, there is flexibility in this final rule and
the associated MUTCD language that allows for an agency to develop a
more complex set of minimum retroreflectivity levels, if it chooses to
do so. Such levels cannot be below the minimums in Table 2A-3.
As mentioned in item 3 under Major Issues, a few commenters such as
NACE, the NCUTCD and others, believed that Table 2A-3 and its title
should be referred to as ``Recommended.'' The FHWA believes that it is
inappropriate to include ``Recommended'' in the title of a table that
is referenced in a STANDARD statement of the MUTCD. In addition, the
word ``Recommended'' implies guidance, rather than a standard, and
would therefore be confusing.
ATSSA, the AHAS and the MNDOT agreed with eliminating Type I
material for ground-mounted signs, and they also agreed with
eliminating Types I, II, and III for overhead guide sign legends. These
commenters felt that prohibiting the use of these less efficient
retroreflective materials would substantially improve the nighttime
driving environments, especially for older drivers with a variety of
visual impairments. ATSSA also supported including Type X materials so
that all currently defined American Society of Testing Materials (ASTM)
Type designations that are used for traffic signs will be included in
the MUTCD.
The NCDOT disagrees with any retroreflective requirement for
illuminated signs. Their reasoning is that the assessment and
management methods used to maintain retroreflectivity do not address
signs with illumination and that Section 2A.08 does not require
retroreflectivity for illuminated signs.
Illuminated signs do need to meet the minimum retroreflectivity
requirements because there are times that the signs may not be
illuminated due to power failure. Previous research has shown that
overhead signs can be effective
[[Page 72580]]
without lighting, as long as the appropriate retroreflective sheeting
materials are used to fabricate the sign.\9\ With this knowledge, many
agencies have elected to use more efficient retroreflective sheeting on
overhead guide signs without sign lighting, citing adequate visibility
and concerns about energy use and light pollution (although sign
lighting may continue to be used in areas of complex surroundings and/
or roadway geometries). The minimum retroreflectivity levels in Table
2A-3 in the MUTCD prohibit the use of less efficient reflective
materials for overhead signs so that agencies do not use them. As a
result, agencies are more likely to select appropriate materials to
meet nighttime driving requirements.
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\9\ Carlson, P.J. and H.G. Hawkins. Minimum Retroreflectivity
Levels for Overhead Guide Signs and Street-Name Signs. FHWA-RD-03-
082. U.S. Department of Transportation, Federal Highway
Administration, Washington, DC. This document is available at the
following Web address: http://www.tfhrc.gov/safety/pubs/03082/index.htm.
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One supplier of overhead sign lighting systems and 22 citizens
suggested that lighting of overhead signs should be mandatory. This
final rule does not change the existing MUTCD language recommending
lighting for overhead signs. Mandating lighting for overhead signs is
outside the scope of this rulemaking.
One sign manufacturer suggested that retroreflectivity levels
measured at 0.5 degree observation angle be included. As discussed in
item 12 of the SNPA, research has been completed that supports
moving toward the 0.5-degree concept and the ASTM has started working
toward a revision to its specifications to describe 0.5-degree
measurements.\10\ The FHWA believes that it is not practical to
implement minimum retroreflectivity levels based on an observation
angle of 0.5 degrees until measuring devices become more readily
available, and the ASTM completes its work developing a standard
measurement specification. At that time there may be a need for an
alternative table and a transition period established while the 0.2-
degree measurement geometries and devices are phased out. If so, these
changes will be introduced through public rulemaking procedures
described earlier for MUTCD changes or additions.
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\10\ The ASTM E12 committee is working to develop a standard
measurement specification for 0.5 degree instruments. The committee
is using ASTM E1709 as a template (ASTM E1709 is the standard
measurement specification for 0.2 degree instruments). More
information is available at http://www.astm.org.
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Conclusion
To address the comments to the docket, the FHWA adopts the
following key changes to Section 2A.09 Maintaining Minimum
Retroreflectivity in the MUTCD from what was proposed in the SNPA:
(A) In the STANDARD statement, a reference to Table 2A-3 was added
to clarify that the levels contained in Table 2A-3 are the minimum
levels that are to be used by public agencies or officials having
jurisdiction when they develop an assessment or management method that
is designed to maintain sign retroreflectivity.
(B) The 2nd SUPPORT statement was clarified to indicate that once
an assessment or management method is used, an agency or official
having jurisdiction would be in compliance with the STANDARD even if
some individual signs do not meet the minimum retroreflectivity levels
at a particular point in time.
(C) The GUIDANCE statement was modified by adding a sixth method to
the list of assessment or management methods that should be used to
maintain sign retroreflectivity titled ``Other Methods,'' which
explicitly states that other methods developed based on engineering
studies can be used.
In addition, FHWA adopts a 4-year compliance date (instead of the
proposed 2-year compliance date) for implementation and continued use
of an assessment or management method that is designed to maintain
traffic sign retroreflectivity at or above the established minimum
levels.
The final rule meets statutory requirements, provides clarity where
needed, and provides flexibility for compliance.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and U.S. DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or under
the regulatory policies and procedures of the U.S. Department of
Transportation. While the FHWA had preliminarily designated this
rulemaking as significant during the NPRM and SNPRM stages, the FHWA
has determined that this rulemaking does not meet the criteria for a
``significant regulatory action'' under Executive Order 12866. This
rule will not adversely affect, in a material way, any sector of the
economy. Additionally, this rulemaking will not interfere with any
action taken or planned by another agency and will not materially alter
the budgetary impact of any entitlements, grants, user fees or loan
programs.
It is anticipated that the economic impact of this rulemaking would
cause minimal additional expenses to public agencies. In 2007, FHWA
updated its analysis of the cost impacts to State and local agencies to
reflect higher material costs due to inflation, an increase in the
proportion of signs that would be replaced with higher-level sign
sheeting material, and changes in the overall mileage of State and
local roads.\11\ The findings of the 2007 analysis show that the costs
of the proposed action to State and local agencies would be less than
$128.1 million per year.\12\ The 7-year implementation period for
ground-mounted signs will allow State and local agencies to delay
replacement of recently installed Type I signs until they have reached
their commonly accepted 7-year service life. The 10-year compliance
period for overhead signs would allow an extended period of time
because of the longer service life typically used for those signs. The
final rule does not affect the impacts assessments described above.
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\11\ ``Maintaining Traffic Sign Retroreflectivity: Impacts on
State and Local Agencies,'' Publication No. FHWA-HRT-07-042, dated
April 2007, is available at the following Web address: http://www.tfhrc.gov/safety/pubs/07042/index.htm.
\12\ Ibid.
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Currently, the MUTCD requires that traffic signs be illuminated or
retroreflective to enhance nighttime visibility. In 1993, Congress
mandated that the MUTCD contain standards for maintaining minimum
traffic sign and pavement marking retroreflectivity.\13\ The final rule
provides additional guidance, clarification, and flexibility in
maintaining traffic sign retroreflectivity that is already required by
the MUTCD. The minimum retroreflectivity levels and maintenance methods
consider changes in the composition of the vehicle population, vehicle
headlamp design, and the demographics of drivers. The FHWA expects that
the levels and maintenance methods will help to promote safety and
mobility on the Nation's streets and highways.
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\13\ United States Department of Transportation and Related
Agencies Act of 1993, Public Law 102-388, 106 Stat. 1520, Section
406.
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This rulemaking addresses comments received in response to the
Office of Management and Budget's (OMB's) request for regulatory reform
nominations from the public. The OMB is required to submit an annual
report to Congress on the costs and benefits of Federal regulations.
The 2002 report included recommendations for
[[Page 72581]]
regulatory reform that OMB requested from the public.\14\ One
recommendation was that the FHWA should establish standards for minimum
levels of brightness of traffic signs.\15\ The FHWA has identified this
rulemaking as responsive to that recommendation.
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\14\ A copy of the OMB report ``Stimulating Smarter Regulation:
2002 Report to Congress on the Costs and Benefits of Regulation and
Unfunded Mandates on State, Local, and Tribal Entities'' is
available at the following Web address: http://www.whitehouse.gov/omb/inforeg/summaries_nominations_final.pdf.
\15\ 15 A complete compilation of comments received by OMB is
available at the following Web address: http://www.whitehouse.gov/omb/inforeg/key_comments.html. Comment 93 includes the
recommendation concerning the retroreflectivity of traffic signs.
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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 final
rule on small entities and has determined that this final rule will not
have a significant economic impact on a substantial number of small
entities.
This rule would apply to State Departments of Transportation in the
execution of their highway programs, specifically with respect to the
retroreflectivity of traffic signs. Additionally, sign replacement is
often eligible for up to 100 percent Federal-aid funding--this applies
to local jurisdictions and tribal governments, pursuant to 23 U.S.C.
120(c). The implementation of this final rule would not affect the
economic viability or sustenance of small entities, as States are not
included in the definition of a small entity that is set forth in 5
U.S.C. 601.
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 impacts analysis shows that State and local
agencies would be likely to incur impacts of roughly $37.5 million.
Using a 7-year implementation period for regulatory, warning, and guide
signs and a 10-year implementation period for street name and overhead
guide signs, the annual impacts are estimated to be approximately $4.5
million for years 1 through 7, and $2.1 million for years 8 through 10.
The estimates are based upon the added cost of more efficient
performance sign materials. The labor, equipment, and mileage costs for
sign replacement were excluded under the assumption that the proposed
implementation period was long enough to allow replacement of non-
compliant signs under currently planned maintenance cycles. Therefore,
this final rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of
$128.1 million or more in any one year. In addition, sign replacement
is often eligible for up to 100 percent Federal-aid funding--this
applies to local jurisdictions and tribal governments, pursuant to 23
U.S.C. 120(c). Further, the definition of ``Federal Mandate'' in the
Unfunded Mandates Reform Act excludes financial assistance of the type
in which State, local or tribal governments have authority to adjust
their participation in the program in accordance with changes made in
the program by the Federal Government. The Federal-aid highway program
permits this type of flexibility.
Executive Order 13132 (Federalism)
The FHWA analyzed this final rule in accordance with the principles
and criteria contained in Executive Order 13132, dated August 4, 1999,
and FHWA has determined that this final rule will not have a
substantial direct effect or sufficient federalism implications on
States and local governments that would limit the policy-making
discretion of the States and local governments. Nothing in the MUTCD
directly preempts any State law or regulation.
The MUTCD is incorporated by reference in 23 CFR Part 655, subpart
F. This final rule is 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 Nation's
streets and highways.
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, although it is a
significant regulatory action under Executive Order 12866, 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 OMB 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 final rule 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.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory
[[Page 72582]]
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, Signs, Traffic regulations.
Issued on: December 13, 2007.
J. Richard Capka,
Federal Highway Administrator.
0
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
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--Traffic Control Devices on Federal-Aid and Other Streets
and Highways--[Amended]
0
2. Revise Sec. 655.601(a), to read as follows:
Sec. 655.601 Purpose.
* * * * *
(a) Manual on Uniform Traffic Control Devices for Streets and
Highways (MUTCD), 2003 Edition, including Revision No. 1, FHWA, dated
November 2004, and revision No. 2, FHWA, dated January 2008. This
publication is incorporated by reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51 and is on file at the National Archives and
Record 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/code_of_federal_regulations/ibr_locations.html. It is available for inspection at the Federal Highway
Administration, 1200 New Jersey Ave., SE., Washington, DC 20590, as
provided in 49 CFR part 7. The text is also available from the FHWA
Office of Transportation Operations' Web site at http://mutcd.fhwa.dot.gov.
* * * * *
[FR Doc. E7-24683 Filed 12-20-07; 8:45 am]
BILLING CODE 4910-22-P