National Standards for Traffic Control Devices; the Manual on Uniform Traffic Control Devices for Streets and Highways; Maintaining Traffic Sign Retroreflectivity, 72574-72582 [E7-24683]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 72, Number 245 (Friday, December 21, 2007)]
[Rules and Regulations]
[Pages 72574-72582]
From the Federal Register Online via the Government Printing 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 
https://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: https://www.archives.gov 
and the Government Printing Office's Web page at: https://
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: https://
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 https://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: https://
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 (https://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):

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[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: https://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: https://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: https://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: https://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  https://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: https://
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: https://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: https://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 https://
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 https://
mutcd.fhwa.dot.gov.
* * * * *
 [FR Doc. E7-24683 Filed 12-20-07; 8:45 am]
BILLING CODE 4910-22-P