National Standards for Traffic Control Devices; the Manual on Uniform Traffic Control Devices for Streets and Highways; Maintaining Pavement Marking Retroreflectivity

National Standards for Traffic Control Devices; the Manual on Uniform Traffic Control Devices for Streets and Highways; Maintaining Pavement Marking Retroreflectivity

Publication: Federal Register
Signing Official: Stephanie Pollack
Agency: Federal Highway Administration
Date: 5 August 2022

[Federal Register Volume 87, Number 150 (Friday, August 5, 2022)]
[Rules and Regulations]
[Pages 47921-47931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16781]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 655

[FHWA Docket No. FHWA-2009-0139]
RIN 2125-AF34

National Standards for Traffic Control Devices; the Manual on
Uniform Traffic Control Devices for Streets and Highways; Maintaining
Pavement Marking Retroreflectivity

AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The purpose of this final rule is to update the Manual on
Uniform Traffic Control Devices (MUTCD) to provide standards, guidance,
options, and supporting information relating to maintaining minimum
levels of retroreflectivity for pavement markings. The MUTCD is
incorporated in FHWA regulations and recognized as the national
standard for traffic control devices used on all streets, highways,
bikeways, and private roads open to public travel.

DATES: Effective on September 6, 2022. The incorporation by reference
of certain publications listed in the rule is approved by the Director
of the Federal Register as of September 6, 2022.

FOR FURTHER INFORMATION CONTACT: Ms. Cathy Satterfield, Office of
Safety, (202) 309-0465, cathy.satterfield@dot.gov; or Mr. William
Winne, Office of the Chief Counsel, (202) 366-1397,
william.winne@dot.gov, Federal Highway Administration, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Executive Summary

I. Purpose of the Regulatory Action

[[Page 47922]]

Reducing transportation-related fatalities and serious injuries is a
primary goal of FHWA.\1\ The purpose of including a minimum
retroreflectivity standard in the MUTCD \2\ is to advance safety and
mobility by assisting with the nighttime visibility needs of drivers.
This final rule addresses driver visibility needs in terms of pavement
markings. The final rule for maintaining minimum levels of
retroreflectivity for traffic signs was issued on December 21, 2007, at
72 FR 72574. Both rules are based on older driver needs with an average
age of 62 years. While the minimum retroreflectivity levels in the rule
are based on driver needs, the improvement in markings that will result
from this rule will also improve the infrastructure's ability to work
with advanced driver assistance systems (ADAS) and automated driving
systems (ADS).
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\1\ FHWA's Commitment to Safety can be viewed at the following
website: https://safety.fhwa.dot.gov/zerodeaths.
\2\ The current edition of the Manual on Uniform Traffic Control
Devices can be viewed at the following website: http://mutcd.fhwa.dot.gov/kno_2009r1r2.htm.
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II. Summary of the Major Provisions of the Regulatory Action in
Question

This final rule establishes minimum maintained retroreflectivity
levels for longitudinal pavement markings on all roads open to public
travel with speed limits of 35 mph or greater. The final rule requires
applicable agencies or officials to implement a method for maintaining
pavement marking retroreflectivity at or above minimum levels,
providing a 4-year compliance date for implementing the method. It
provides options for agencies on roads where illumination or low
volumes make the markings less critical and for certain types of
markings. It also acknowledges short-term allowances of subminimum
retroreflectivity based on special circumstances. As with the current
MUTCD requirements for sign retroreflectivity, this final rule does not
include compliance dates for replacement of pavement markings that do
not meet minimum retroreflectivity levels. Pavement marking replacement
schedules will be based on the methods established by agencies or
officials.

III. Costs and Benefits

FHWA has estimated the costs and potential benefits of this
rulemaking and has determined that this final rule fulfills the
requirements under Section 406 of the Department of Transportation and
Related Agencies Appropriations Act, 1993 (Pub. L. 102-388; October 6,
1992), while also providing flexibility for agencies. The estimated
national costs and benefits are documented in the updated economic
analysis report titled Economic Impacts of Minimum Maintained Levels of
Pavement Marking Retroreflectivity in the MUTCD, and the flexibility
for each agency to choose a method that works best for them to
implement the new standard is documented in the new publication titled
Methods for Maintaining Pavement Marking Retroreflectivity.\3\
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\3\ The reports titled Economic Impacts of Minimum Maintained
Levels of Pavement Marking Retroreflectivity in the MUTCD and
Methods for Maintaining Pavement Marking Retroreflectivity can be
viewed on the docket using FHWA Docket No. FHWA-2009-0139.
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The MUTCD already requires that pavement ``markings that must be
visible at night shall be retroreflective unless ambient illumination
assures that the markings are adequately visible,'' and that ``all
markings on interstate highways shall be retroreflective.'' \4\
However, the MUTCD does not currently require that pavement markings
meet a minimum level of retroreflectivity. The changes in the MUTCD
will provide drivers the benefit of pavement markings that are
maintained at or above retroreflectivity levels supported by research
on driver needs. In addition, the improved maintenance of pavement
markings as a result of this final rule is expected to benefit all road
users and ADAS and ADS technology.
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\4\ Section 3A.02 of the 2009 Manual on Uniform Traffic Control
Devices can be viewed at the following website: http://mutcd.fhwa.dot.gov/kno_2009r1r2.htm.
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The economic analysis provides a national estimate of the costs of
implementing this rulemaking and a break-even analysis for maintaining
marking retroreflectivity at the established levels. Costs for
individual agencies were not computed because they will vary based on
factors such as the amount of pavement marking mileage subject to the
standards and current pavement marking practices. The analysis
estimates one-time national costs in the first year of $16.17 million
for all affected State and local agencies to establish maintenance
methods, purchase necessary equipment, and implement their method the
first time. In subsequent years, these agencies are expected to incur
increased costs nationwide totaling $29.07 million annually as a result
of this rule. These annual costs include $3.44 million in activities to
assess or manage markings as a result of this rulemaking, including
replacement of equipment. Although this final rule has no compliance
dates for replacing markings, the annual costs also include pavement
marking replacement expenditures of approximately $25.63 million per
year beyond current expenditures.
A thorough review of research indicates crashes are typically
reduced by the presence of longitudinal pavement markings, and this
rulemaking is expected to improve the nighttime presence of these
markings, particularly where they are not currently well maintained.
Therefore, FHWA believes the improved maintenance of pavement marking
retroreflectivity as a result of this rule will provide some reduction
in severe crashes. However, since the current levels of pavement
marking retroreflectivity are not well known, particularly at the time
and location where crashes occur, it is not possible to quantify the
benefit specifically attributable to this final rule. As documented in
the economic analysis, the most likely effect would be to reduce some
of the crashes occurring in dark, unlighted conditions, which result in
approximately 10,000 lives lost annually. The break-even analysis
indicates that the rule will achieve benefits equal to costs if it
saves three lives annually.\5\
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\5\ The report titled Economic Impacts of Minimum Maintained
Levels of Pavement Marking Retroreflectivity in the MUTCD can be
viewed on the docket.
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Background and Legal Authority

Section 406 of the Department of Transportation and Related
Agencies Appropriations Act, 1993 (Pub. L. 102-388; October 6, 1992)
directed the Secretary of Transportation to ``revise the Manual on
Uniform Traffic Control Devices to include--a standard for a minimum
level of retroreflectivity that must be maintained for pavement
markings and signs, which shall apply to all roads open to public
travel.'' The final rule for maintaining minimum levels of
retroreflectivity for traffic signs was issued on December 21, 2007, at
72 FR 72574. The 2009 MUTCD with Revision Numbers 1 and 2 incorporated
is the most current edition of the MUTCD. It requires agencies to
implement and have continued use of an assessment or management method
that is designed to maintain regulatory and warning sign
retroreflectivity at or above the established minimum levels.
Under the authority delegated to FHWA in 49 CFR 1.85 and Section
406 of the Department of Transportation and Related Agencies
Appropriations Act of 1993, FHWA used research, stakeholder input, and
knowledge it gained through

[[Page 47923]]

the sign retroreflectivity rulemaking process to prepare the Notice of
Proposed Amendment (NPA) for maintaining pavement marking
retroreflectivity, which was published on April 22, 2010, at 75 FR
20935. The NPA proposed to amend the MUTCD to include standards,
guidance, options, and supporting information related to maintaining
minimum levels of retroreflectivity for pavement markings. FHWA
received approximately 100 responses that were submitted to the docket
containing nearly 700 individual comments. State and local departments
of transportation, as well as associations that represent them,
submitted many comments expressing concern over key elements of the
MUTCD text as proposed in the NPA. The commenters expressed confusion
about which pavement markings would be required to meet minimum
retroreflectivity values and concern over compliance dates for
replacing deficient markings, the proposed numerical minimum
retroreflectivity levels, cost, and liability. Organizations comprised
of safety advocates and industry suppliers of pavement markings
submitted comments suggesting that the NPA did not go far enough in
establishing retroreflectivity standards.
In its comments to the NPA, the American Association of State
Highway and Transportation Officials (AASHTO) and the National
Association of County Engineers (NACE) requested delaying the final
rule for pavement marking retroreflectivity until AASHTO's Subcommittee
on Traffic Engineering (SCOTE) completed a research project intended to
provide a synthesis of pavement marking retroreflectivity maintenance
practices. The organizations and many of their members felt this
project would produce actual measurement of in-service pavement marking
retroreflectivity levels to compare with the minimum values proposed by
FHWA. The project was completed under National Cooperative Highway
Research Program (NCHRP) Project 20-07 Task 310. The findings were
published January 2013 in a report titled Determination of Current
Levels of Retroreflectance Attained and Maintained by State Departments
of Transportation.\6\
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\6\ The report titled Determination of Current Levels of
Retroreflectance Attained and Maintained by State Departments of
Transportation can be viewed at the following website: http://apps.trb.org/cmsfeed/TRBNetProjectDisplay.asp?ProjectID=3074.
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In consideration of all the comments and based on additional
research findings from NCHRP Project 20-07 Task 310, FHWA published a
Supplemental Notice of Proposed Amendment (SNPA) January 4, 2017, at 82
FR 770. Additional information on pavement marking retroreflectivity,
drivers' needs, and associated research, is contained in the SNPA
preamble.
Since the publication of the SNPA, Section 11135 of the Bipartisan
Infrastructure Law, enacted as the Infrastructure Investment and Jobs
Act, Public Law 117-58 (Nov. 15, 2021), specifically required the
update of minimum retroreflectivity of pavement markings in the MUTCD.
Based on the comments received on the NPA and the SNPA, FHWA is
issuing this final rule establishing minimum levels of
retroreflectivity that must be maintained for longitudinal pavement
markings. FHWA is designating the MUTCD, with these changes
incorporated, as Revision No. 3 of the 2009 edition of the MUTCD. The
text of this Revision No. 3 and the text of the 2009 edition of the
MUTCD with Revision No. 3 final text incorporated are available on the
docket. Furthermore, Revision No. 3 changes are available on the
official MUTCD website at https://mutcd.fhwa.dot.gov. The entire MUTCD
text with Revision No. 3 text incorporated is also available on the
MUTCD website.

Summary of Comments

FHWA received 47 letters submitted to the docket with approximately
130 individual comments in response to the SNPA. FHWA received comments
from the National Committee on Uniform Traffic Control Devices
(NCUTCD), SCOTE, 13 State departments of transportation (State DOT),
the American Traffic Safety Services Association (ATSSA), city and
county governmental agencies, consulting firms, private industry,
associations, other organizations, and individual private citizens.
FHWA has considered all of these comments in the development of the
final rule. Docket comments and summaries of FHWA's analyses and
determinations are discussed as follows.

Discussion of General Comments

Many respondents supported FHWA's efforts to simplify and clarify
the MUTCD text from what was proposed in the NPA and indicated that
their concerns were addressed with the MUTCD text proposed in the SNPA.
Some other commenters, particularly those affiliated with safety
associations and manufacturers, indicated that the standard did not go
far enough toward meeting the congressional intent of the statutory
provision.
The Delaware and Ohio Departments of Transportation (ODOT)
supported the SNPA with no other comments, and the Indiana, Kansas,
Oregon, and Wyoming Departments of Transportation supported the SNPA
with minor comments. The Michigan, Minnesota, South Dakota, and
Virginia Departments of Transportation generally supported AASHTO's
comments, in some cases with modifications; whereas Arizona Department
of Transportation supported the comments submitted by both AASHTO and
NCUTCD.
In analyzing the comments to the SNPA, FHWA decided that additional
clarification should be provided in the MUTCD text or in the final rule
preamble to address the comments regarding the following four major
categories:
(1) Compliance Date for Implementation of a Method.
(2) Methods and Documentation.
(3) Retroreflectivity Levels and Optional Exclusions.
(4) Special Circumstances and Compliance.

Discussion of Major Comment Categories

This section provides a discussion of each of the four major
categories raised by commenters in response to the SNPA, along with
FHWA's analysis and resolution.
(1) Compliance Date for Implementation of a Method
AASHTO and several State DOTs requested that the compliance date be
changed from 4 to 5 years. The Michigan Department of Transportation
(MDOT) indicated that the change to 5 years would allow more time to
achieve compliance because implementation of minimum pavement marking
retroreflectivity is a maintenance function. MDOT indicated that it
takes additional time to establish a feasible methodology and agency
practices, estimate costs, and program and receive funding. The Alaska
Department of Transportation and Public Facilities (DOT&PF) provided
similar justification for suggesting the compliance date be extended to
6 years. NCUTCD also suggested a 6-year compliance date but did not
provide any information to support the timeframe extension. The
Virginia DOT suggested a 5-year compliance date. None of the local
agencies provided specific comments on the compliance date. However,
Woodbury County, Iowa, expressed support for NCUTCD's letter, which
suggested a 6-year compliance date. ATSSA suggested adding a compliance
requirement that markings covered in

[[Page 47924]]

this section of the MUTCD meet the minimum retroreflectivity levels 6
years from the effective date of this final rule.
Upon review and consideration of the comments, FHWA believes that 4
years is appropriate for compliance because the compliance date relates
only to establishing and implementing a method, not replacing deficient
markings. Pavement marking replacement schedules will be based on the
methods established by agencies or officials. To maintain consistency
with Revision No. 2 of the 2009 MUTCD, which removed the compliance
dates for replacement of signs that are identified as failing to meet
the minimum retroreflectivity requirements, FHWA does not add an
additional compliance date requirement for replacement of deficient
markings. As a result, FHWA retains compliance date language as
proposed in the SNPA. The compliance provision is only for
implementation and continued use of a method that is designed to
maintain retroreflectivity of longitudinal pavement markings, and the
compliance date is 4 years from the effective date of this final rule.
(2) Methods and Documentation
In the SNPA, FHWA proposed that methods used to maintain
retroreflectivity should be one or more of those described in a
separate document titled Methods for Maintaining Pavement Marking
Retroreflectivity, or developed from an engineering study based on the
minimum retroreflectivity values in paragraphs 1 and 2 of Section
3A.03. This differed from the NPA, where FHWA proposed to include the
names along with short descriptions of the recommended methods within
the MUTCD text. The Wyoming Department of Transportation (WYDOT)
indicated that placing the methods in a separate reference document,
rather than the MUTCD, places a burden on agencies to navigate to
another document and expressed concern that an online document could be
dynamic; therefore, agencies may not be aware of future changes. WYDOT
also indicated that the MUTCD has historically been a standalone
document, so adding other documents to supplement it complicates,
rather than simplifies, the MUTCD.
As stated in the SNPA, FHWA believes more details are needed to
describe fully the intent of the methods and to avoid
misinterpretation. To simplify the MUTCD, FHWA believes it is more
appropriate to refer MUTCD users to this supplemental document rather
than trying to summarize its contents in the MUTCD. An added benefit to
this approach is that this document, which will be available on FHWA's
website, will include detailed guidance on how to use the methods and
will inform agencies that other methods may be developed provided they
are tied to the minimum retroreflectivity levels through an engineering
study. This document also includes information about techniques that
are not recommended for maintaining minimum pavement marking
retroreflectivity (because they cannot be tied to the minimum
retroreflectivity levels) and recommendations concerning items to
consider and/or include in documentation of method(s). FHWA believes
that by providing all the pertinent guidance related to the methods to
maintain pavement marking retroreflectivity in one place, users are
more likely to obtain complete information and, therefore, make more
informed decisions about the method(s) they use for maintaining minimum
pavement marking retroreflectivity.
Several commenters provided comments about the specific methods
used to maintain minimum retroreflectivity that are documented in the
reference, Methods for Maintaining Pavement Marking Retroreflectivity.
ATSSA recommended replacing the reference report with a requirement
that pavement marking retroreflectivity be measured using a
retroreflectometer. ATTSA suggested that advances in
retroreflectometers over the past 10 years render measurement of
retroreflectivity the most appropriate and, as a result, favored
allowing only the use of methods that involve measuring
retroreflectivity with a retroreflectometer. A vendor offered a similar
viewpoint, suggesting that an objective measurement method, such as
mobile retroreflectometers, be required instead of subjective
evaluation methods. The vendor indicated that methods, such as the
calibrated pavement markings procedure, may introduce data
inconsistency and variability; whereas, mobile systems provide a safe,
practical, and traceable data collection method without compromising
objectivity or accuracy. WYDOT offered an opposing comment, commending
FHWA for allowing blanket replacement as a management strategy,
mirroring that of the sign retroreflectivity methods.
FHWA believes that using retroreflectivity measurements as the sole
basis for maintaining minimum retroreflectivity would eliminate
benefits that agencies may find with nighttime visual inspections and
would be costly and burdensome to some agencies. Small agencies in
particular could face significant financial difficulties in acquiring
measurement equipment and may find it burdensome to develop an
appropriate evaluation plan, measure longitudinal markings regularly,
and manage the measurement data. In addition, several comments to the
NPA supported flexibility in the methods. Methods for Maintaining
Pavement Marking Retroreflectivity documents advantages and concerns
for each method to assist agencies in choosing the most appropriate
method for their situation.\7\ Therefore, FHWA believes that
flexibility in maintenance methods is appropriate. Documentation of
methods, processes, and policies are important components for agencies
to consider.
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\7\ The report titled Methods for Maintaining Pavement Marking
Retroreflectivity can be viewed on the docket.
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(3) Retroreflectivity Levels and Optional Exclusions
FHWA received numerous comments to the NPA indicating confusion
with the proposed table that indicated which markings were included in
the minimum retroreflectivity requirements and the minimum
retroreflectivity values applied under specific roadway types and
marking patterns. To reduce confusion and simplify application of the
standard, FHWA simplified the minimum pavement marking
retroreflectivity values in the SNPA to two values, removed references
to warrants in other sections of the MUTCD, removed criteria based on
roadway configuration and marking patterns, and removed the table. The
resulting language consisted of one required and one recommended
retroreflectivity value according to the statutory or posted speed
limit of the roadway. As indicated previously, several commenters fully
supported the SNPA and felt that the proposed SNPA MUTCD text reflected
changes that addressed many of the comments on the NPA. Several
commenters still provided remarks about details related to the proposed
minimum maintained retroreflectivity levels, including comments about
the speed limit thresholds, the required numerical retroreflectivity
levels, markings that may be excluded, and special circumstances.
The Standard statement in the SNPA required that a method designed
to maintain retroreflectivity levels at or above 50 mcd/m\2\/lx shall
be used for longitudinal markings on roadways with statutory or posted
speed limits of 35

[[Page 47925]]

mph or greater, except as allowed by option for specific roadways or
markings.\8\ As indicated in the SNPA, the 35-mph threshold below which
a method would not be required was a key concept that was carried
forward from the NPA. FHWA received comments from NACE and 26 local
agencies supporting the NPA proposal that the minimum levels not apply
to roads with posted speeds of less than 35 mph; therefore, FHWA
retained that concept in the SNPA. ATSSA, the American Highway Users
Alliance (AHUA), and several vendors indicated that the intent of the
language in the Appropriations Act, as well as drivers' needs, require
that minimum retroreflectivity levels be maintained for pavement
markings on all roadways regardless of posted speed. Therefore, the
commenters suggested that the MUTCD text include minimum maintained
retroreflectivity levels for roadways with posted speeds less than 35
mph. These associations and vendors provided similar comments to the
NPA. One local agency suggested that severe crashes occur on roads with
posted speeds of 35 mph and lower and suggested that the MUTCD text be
based on data and risk mitigation.
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\8\ The units of pavement marking retroreflectivity are reported
in mcd/m\2\/lx, which means millicandelas per square meter per lux.
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FHWA agrees that agencies should apply safety treatments
systemically based on risk factors. A query of the National Highway
Traffic Safety Administration's (NHTSA's) Fatality Analysis Reporting
System (FARS) for the most recent 3 years of available data indicates
that only 10 percent of vehicles involved in fatal crashes during dark
conditions were traveling on roads with speed limits under 35 mph.
While this 10 percent is not insignificant, FHWA believes that many of
these fatal crashes would not be mitigated by improved
retroreflectivity of longitudinal pavement markings since properly
working vehicle headlights generally provide sufficient illumination
for the needed preview distance of the road itself at these lower
speeds. As a result, FHWA believes little benefit is derived from
requiring agencies to implement a method to maintain a specific minimum
retroreflectivity level of markings on roadways with speed limits below
35 mph and retains this threshold in the final rule. FHWA simplifies
the MUTCD text in this final rule by removing ``statutory and posted''
as modifiers to ``speed limits'' since there is no other type of speed
limit. This also provides consistency within the MUTCD.
The SNPA Guidance statement proposed that a method designed to
maintain retroreflectivity at or above 100 mcd/m\2\/lx should be used
for longitudinal markings on roadways with statutory or posted speed
limits of 70 mph or greater. As indicated in the SNPA, the minimum
maintained retroreflectivity levels were based on research and comments
to the NPA. The NPA-proposed minimum retroreflectivity value of 250
mcd/m\2\/lx for two-lane roads with only center line markings and
speeds of 55 mph or greater was particularly controversial. FHWA
received comments from AASHTO, NCUTCD, NACE, and several State DOTs
suggesting that it was not feasible with existing technologies to
maintain a retroreflectivity level of 250 mcd/m\2\/lx. AASHTO and 9
State DOTs suggested reducing this value to 100 mcd/m\2\/lx, whereas
NCUTCD and NACE suggested a value of 150 mcd/m\2\ lx. FHWA proposed a
minimum level of 100 mcd/m\2\/lx in the SNPA based on research of
pavement marking retroreflectivity requirements documented in
publication FHWA-HRT-07-059, Updates to Research on Recommended Minimum
Levels for Pavement Marking Retroreflectivity to Meet Driver Night
Visibility Needs.\9\
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\9\ The report titled Updates to Research on Recommended Minimum
Levels for Pavement Marking Retroreflectivity to Meet Driver Night
Visibility Needs can be viewed at the following internet website:
http://www.fhwa.dot.gov/publications/research/safety/07059/.
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ATSSA provided comments on the SNPA suggesting that the minimum of
100 mcd/m\2\/lx for speeds of 70 mph and higher falls short of the
intent of the Appropriations Act and will contribute to unsafe driving
conditions. ATSSA suggested that the proposed guidance will not result
in a change in maintenance of pavement marking retroreflectivity such
that the public will benefit from improved pavement marking
retroreflectivity. As a result, ATSSA suggested deleting the Guidance
statement and revising the Standard to state that ``175 mcd/m\2\/lx
shall be used for posted speed limits greater than 35 mph.'' A
consortium of vendors also supported a minimum maintained
retroreflectivity level of 175 mcd/m\2\lx but for roadways with
statutory or posted speeds of 45 mph or greater. NCUTCD also suggested
deleting the Guidance statement and including the requirement for
minimum maintained retroreflectivity of 100 mcd/m\2\/lx for roadways
with statutory or posted speeds greater than 70 mph in the Standard
statement.
FHWA believes that the minimum recommended level of 100 mcd/m\2\/lx
for speed limits of 70 mph will improve overall retroreflectivity of
markings without placing an undue burden on agencies. It is the intent
of this Guidance statement to encourage agencies to improve pavement
marking retroreflectivity, and not to require public agencies to meet
levels that would be impractical to maintain with existing technologies
or that would discourage the use of pavement markings where they are
not required. As always, agencies may choose to maintain their pavement
markings to standards higher than required or recommended by the MUTCD.
In consideration of these factors, FHWA retains the Guidance statement
recommending a value of 100 mcd/m\2\/lx or above be maintained for
longitudinal markings on all roadways with speed limits of 70 mph or
greater. While these are only recommended levels, these roadways would
be subject to the requirements found in the Standard applicable to
roadways with speed limits of 35 mph or greater. As with the Standard
statement, FHWA simplifies the Guidance statement in this final rule by
removing ``statutory and posted'' as modifiers to ``speed limits''
since there is no other type of speed limit.
Separate from the comments related to specific retroreflectivity
values, one commenter submitted a draft paper \10\ quoting research
that suggested the research upon which this rulemaking is based fails
to show that there are safety benefits associated with maintaining
minimum levels of pavement marking retroreflectivity. As part of its
analysis of the docket comments, FHWA reviewed the Appropriations Act
that required this rulemaking and performed a rigorous review of
available research regarding pavement markings, retroreflectivity, and
nighttime crashes. The requirement for rulemaking was in the
Appropriations Act, and while the Appropriations Act language does not
specifically state that the purpose was to improve safety, statements
made by Senator Durenberger and testimony leading up to its passage
suggest that there were assumptions that maintaining minimum pavement
marking retroreflectivity would improve safety.\11\ Most commenters
throughout

[[Page 47926]]

this rulemaking process have indicated that they believe that higher
retroreflectivity values would improve safety. Based on the review of
nighttime crash rates, and all available research, FHWA continues to
pursue this rulemaking because evidence indicates that retroreflective
pavement markings are important to safety.
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\10\ The article, ``On the relationship between road safety
research and the practice of road design and operation'' was
published in Accident Analysis and Prevention, Volume 128, July
2019, pp 114-131 and can be accessed at the following internet
website: https://www.sciencedirect.com/science/article/abs/pii/S0001457518311710?via%3Dihub.
\11\ Surface Transportation Efficiency Act (Senate June 19,
1991), 137 Cong. Rec. 58099 (1991) p. S8100.
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FHWA performed a rigorous review of available research reports
related to the safety effect of the presence of markings, safety effect
of pavement marking retroreflectivity, and drivers' nighttime needs for
pavement marking retroreflectivity. Studies indicate the presence of
markings improves safety of two-lane rural roads.12 13 The
results of the research specifically related to the effect of pavement
marking retroreflectivity on crashes were mixed and seem to indicate
that no study has yet been performed that included a significant
portion of markings at very low retroreflectivity values that may
indicate an appropriate minimum value.\14\ Therefore, this rulemaking
continues to be based on research of minimum driver needs, which FHWA
believes will provide a nighttime presence of markings that is likely
to reduce crashes. A review of available information related to driver
nighttime visibility needs found no modeling improvements or more
recent information that would meaningfully impact the findings of the
research that was the basis for the NPA and SNPA.\15\
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\12\ Sun, X., and S. Das. A Comprehensive Study on Pavement Edge
Line Implementation. FHWA/LA.13/508, April 2014 can be viewed at the
following web link: https://www.ltrc.lsu.edu/pdf/2014/FR_508.pdf.
\13\ Tsyganov, A., R. Machemehl, and N. Warrenchuk. Safety
Impact of Edge Lines on Rural Two-Lane Highways in Texas. FHWA/TX-
05/0-5009-1, September 2005 can be viewed at the following web link:
https://ctr.utexas.edu/wp-content/uploads/pubs/0_5090_1.pdf.
\14\ Carlson, P.J., E.S. Park, and D.H. Kang. An Investigation
of Longitudinal Pavement Marking Retroreflectivity and Safety.
Transportation Research Record: Journal of the Transportation
Research Board, 2337 (2013). The FHWA Final Report can be viewed at
the following web link: https://static.tti.tamu.edu/tti.tamu.edu/documents/TTI-2014-16.pdf.
\15\ Federal Highway Administration, Updates to Research on
Recommended Minimum Levels for Pavement Marking Retroreflectivity to
Meet Driver Night Visibility Needs, FHWA-HRT-07-059 (McLean, VA:
FHWA, 2007) can be viewed at the following web link: https://www.fhwa.dot.gov/publications/research/safety/07059/02.cfm.
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In the SNPA, FHWA included an Option statement that allows several
types of markings to be excluded from the minimum maintained
retroreflectivity provisions. Although not required to meet the minimum
retroreflectivity values, these markings are still required to be
retroreflective, unless otherwise excluded in the MUTCD. FHWA included
these optional exclusions, not because these markings are of less value
than the longitudinal lines but because in many cases the markings are
not required or additional research would be required to support
establishing minimum retroreflectivity levels for these markings. Item
A excludes ``markings where ambient illumination assures that the
markings are adequately visible.'' \16\ ODOT stated support for this
item. NCUTCD and the DOT&PF suggested that the text be revised to read,
``Markings where ambient illumination is provided,'' because the term
``adequately visible'' is undefined and ambiguous. While FHWA agrees
that there is not a definition for the term ``adequately visible,''
FHWA retains the language in the final rule to maintain consistency
with the existing text in Section 3A.02, paragraph 2, which states,
``Markings that must be visible at night shall be retroreflective
unless ambient illumination assures that the markings are adequately
visible.''
---------------------------------------------------------------------------

\16\ The 2009 Manual on Uniform Traffic Control Devices can be
viewed at the following website: http://mutcd.fhwa.dot.gov/kno_2009r1r2.htm.
---------------------------------------------------------------------------

An option to exclude markings on roadways that have average annual
daily traffic (ADT) of less than 6,000 vehicles per day (vpd) was also
included in the provisions of the SNPA. This exclusion represented a
simplified approach to the NPA-proposed MUTCD text, which was based on
the MUTCD warrants for longitudinal pavement markings. The requirements
and recommendations in the warrants for center lines, lane lines, and
edge lines vary based on different factors, including traffic volume,
roadway width, and functional class. Commenters indicated that the NPA-
proposed MUTCD text was not clear. The exclusion provided in item B of
the SNPA-proposed MUTCD text, based solely on traffic volume, also
responded specifically to comments on the NPA that FHWA received from 2
local agencies and 1 road commission representing over 80 local
agencies suggesting that low-volume roads be excluded from meeting
minimum pavement marking retroreflectivity values.
AASHTO, NCUTCD, and the Minnesota, South Dakota, and Virginia DOTs
all supported the exclusion for roadways with ADT volumes less than
6,000 vpd. Several vendors, ATSSA, and AHUA disagreed with this
optional exclusion in the SNPA, stating that it is counter to the
Appropriations Act, which says the minimum retroreflectivity levels
apply to ``all roads open to public travel.'' AHUA also stated that
including this exclusion reduces the likelihood that the vast majority
of rural two-lane roads will be required to have adequate markings.
As discussed in the SNPA preamble, FHWA conducted a thorough review
of MUTCD text when developing the 6,000-vpd threshold. Because a volume
of 6,000 vpd is the threshold above which center lines and edge lines
are required on most classes of road (see Section 3B.02, paragraph 9,
and Section 3B.07, paragraph 1), FHWA believes that it is appropriate
to establish 6,000 vpd as the volume above which a method for
maintaining pavement marking retroreflectivity applies. As stated in
the SNPA, FHWA received comments to the NPA from NCUTCD, AASHTO, NACE,
and over 40 State and local agencies pertaining to whether minimum
pavement marking retroreflectivity should include only those pavement
markings required in the MUTCD or a combination of required and
recommended pavement markings. Some State and local DOTs suggested that
if there were a requirement to maintain retroreflectivity on pavement
markings that were only recommended (by means of a Guidance statement)
and not required, then they might elect not to install such recommended
markings. FHWA wants to encourage, not discourage, the use of
recommended pavement markings. Therefore, FHWA believes the 6,000-vpd
threshold simplifies the MUTCD text and makes it much easier for
agencies to determine to which roads the standard applies. The
threshold also gives consideration to agencies' resource and liability
concerns. Because this is an OPTION statement, agencies can choose to
include roadways with less than 6,000 vpd in their methods for
maintaining minimum pavement marking retroreflectivity.
As part of the comments related to the exclusion of roadways with
less than 6,000 vpd, a few commenters indicated the specific need to
include ramps in this optional exclusion. Based on a review of the
comments and various terms and definitions relating to ramps and
roadways in the MUTCD, FHWA changes the term ``roadways'' to ``streets
and highways'' to provide consistency with other parts of the MUTCD and
to clarify that the intent of this final rule is to consider a highway
as one facility, rather than analyzing each direction of divided
highways separately. FHWA believes ramps are a component of a highway
and intends for the provisions of this exclusion to apply to ramps.

[[Page 47927]]

(4) Special Circumstances and Compliance
The NPA included a Support statement indicating that use of the
method was the measure of compliance even if markings were below the
minimum levels of retroreflectivity in particular locations at
particular points in time. The NPA also indicated agencies should
consider the many factors both within and outside an agency's control
that might impact marking retroreflectivity as they developed their
methods. Based on comments to the NPA, FHWA provided additional
information in the SNPA paragraph 7 Support statement to clarify that
under such circumstances, an agency would still be considered in
compliance with the Standard and Guidance statements regarding
maintaining minimum retroreflectivity as long as the agency was taking
a reasonable course of action to restore the markings in a timely
manner. FHWA also provided a list of such special circumstances to
address comments from NCUTCD, AASHTO, and State and local DOTs. The
list is not exhaustive; it simply provides examples of planned or
unplanned events that could inhibit the reasonable and effective
execution of a pavement marking maintenance method to provide for the
minimum retroreflectivity levels on every inch of marking at all times.
As described in the SNPA, the list includes: (A) isolated locations of
abnormal degradation, (B) periods preceding imminent resurfacing or
reconstruction, (C) unanticipated events such as equipment breakdowns,
materials shortages, contracting problems, and other similar
conditions, and (D) loss of retroreflectivity resulting from snow
maintenance operations.
NCUTCD, SCOTE, and AASHTO recommended several revisions to
paragraph 7 of the SNPA MUTCD text. The organizations suggested that
the introductory sentence to the paragraph include ``weather and road
conditions'' in addition to ``special circumstances'' that would cause
pavement marking retroreflectivity to fall below the minimum levels.
FHWA contends that weather and road conditions are too broad to be
considered special circumstances with regard to marking degradation and
replacement decision-making by agencies. In addition, that level of
detail is not consistent with the type of language used throughout the
MUTCD.
The organizations also suggested that item (B) be revised to
specify that ``periods during construction'' be added to special
circumstances and the word ``imminent'' be deleted from the phrase
regarding ``programmed or planned resurfacing or reconstruction.'' FHWA
specifically intends for pavement marking retroreflectivity levels to
be maintained during periods leading up to and during construction.
FHWA's intent for this item, as stated in the SNPA, is to alleviate the
requirement to maintain minimum retroreflectivity levels for the brief
period preceding imminent resurfacing or reconstruction if the new
markings will be paved over or milled away in a short time frame. FHWA
believes that the term ``imminent'' implies a much shorter timeframe
than ``planned or programmed'' and therefore retains the existing
wording for item (B).
AASHTO and NCUTCD suggested that item (C) be revised to state
``contracting delays'' rather than ``contracting problems.'' AASHTO
suggested that the term ``delays'' more accurately represents what
happens and the term ``problems'' has multiple meanings. While FHWA
considered AASHTO's interpretation of the terms, FHWA believes that
``problems'' would encompass many issues, besides delay, such as
default or substandard performance that may jeopardize effective method
execution. Therefore, FHWA retains the word ``problems'' in item (C).
Since the example of events in item (C) is not meant to be exhaustive
and the introductory sentence already indicates such, the phrase ``and
other similar conditions'' was deleted from the MUTCD text in this
final rule.
AASHTO, NCUTCD, the Illinois Department of Transportation, and a
consortium of vendors suggested adding an item (E) to the list of
special circumstances to include pavement type, pavement condition,
temperature, or weather. AASHTO reasoned that this addition reflects
that pavement markings that are removed due to winter maintenance, such
as snow plow operations, or otherwise fall below minimum
retroreflectivity levels cannot be replaced during cold weather due to
air or pavement temperatures, and even if they were replaced, they
could be removed during a subsequent storm. FHWA understands that these
situations do occur. However, it is impractical to specify every unique
situation. The introductory sentence to paragraph 7 indicates that the
items listed are not exhaustive, so other situations may arise that
result in pavement markings falling below the minimum maintained level.
AASHTO, the Michigan, Minnesota, and Virginia DOTs, and a
consortium of vendors suggested deleting the last sentence in the
paragraph 7 Support statement regarding compliance under special
circumstances and replacing it with a Standard statement to tie
compliance to the use of an agency's standard operating procedures. The
commenters suggested specific text that would allow an agency to be in
compliance with the minimum retroreflectivity levels, even if special
circumstances resulted in falling below the minimum levels, if the
agency took a reasonable course of action to restore markings in
accordance with the agency's policies and procedures and based on
FHWA's publication Methods for Maintaining Pavement Marking
Retroreflectivity. FHWA agrees that the reasonable course of action
encompasses not only replacing the markings but resuming the execution
of work associated with the agencies' established method(s), including
preparatory roadway work or inventory management activities as needed
before restoration commenced. However, rather than adding a Standard
statement, FHWA revises the last sentence of the Support statement to
indicate that compliance is considered achieved if an agency takes a
reasonable course of action to resume maintenance of minimum
retroreflectivity in a timely manner according to the maintaining
agency's method(s), policies, and procedures. FHWA believes that this
language is most appropriate in a Support statement, which is
consistent with a similar Support statement for signs in Section 2A.08,
Maintaining Minimum Retroreflectivity.

Discussion of Other Comments

NCUTCD and the Kansas, Oregon, and South Dakota Departments of
Transportation suggested that the MUTCD text be revised to clarify that
pavement marking retroreflectivity levels apply to dry conditions.
Although the reference to dry conditions was contained in the SNPA
preamble, the agencies felt that the MUTCD text should include that
provision. In response to the comments, FHWA revises paragraphs 1 and 2
in the final rule to specify that the retroreflectivity levels apply to
dry conditions.
One pavement marking manufacturer suggested that while the SNPA
specified dry conditions, wet-weather visibility of pavement markings
at night is a problem. This commenter also suggested that with more
connected and automated vehicles using the roads, the ability to see
markings under wet conditions will become more important. As a result,
this commenter suggested that future rulemakings incorporate wet-
weather retroreflectivity requirements, similar to the European
standard EN1436. FHWA recognizes the importance of nighttime
retroreflectivity during wet conditions. Pavement

[[Page 47928]]

markings that are to be visible at night are required to be
retroreflective, but minimum maintained levels of retroreflectivity
under wet conditions are not the subject of this rulemaking and could
be considered at a later date when applicable research is available.
One local county questioned whether the 30-meter measurement upon
which the research was based would be applicable for ADAS or ADS
technology. This commenter also suggested that the scope of the section
be expanded to include ADAS and ADS technology. One other commenter
suggested that a future revision may be needed to address ADAS. FHWA is
very supportive of addressing the infrastructure needs of ADAS and ADS,
as shown by requesting information via the Federal Register to gain a
better understanding of current and future needs, holding dialogue on
the subject, providing high-level policy, and conducting research on
the integration of ADAS and ADS into the surface transportation system.
In 2018, FHWA published 10 questions in the Federal Register
(Docket No. FHWA-2017-0049) with the intent to develop a better
understanding of what was needed from the infrastructure industry to
support ADS. The top theme from the summarized results was ``Greater
Uniformity and Quality in Road Markings and Traffic Control Devices
Would Enable Automation.'' Within this theme, it was specifically noted
that having greater consistency in pavement markings and traffic
control devices and an improved state of good repair would benefit all
road users, including ADS-equipped vehicles.
One of six National Dialogue meetings FHWA conducted in 2018 to
facilitate information sharing, identify key issues, and support the
transportation community to safely and efficiently integrate ADS-
equipped vehicles into the road network focused on infrastructure
design and safety. A key takeaway from that meeting was that
infrastructure standards should be updated to account for ADS
technology. As the testing and development of ADS increases, standards
such as the MUTCD may need to be updated to reflect the needs of ADS-
equipped vehicles.
In October 2018, DOT released its high-level policy document
AV3.0--Preparing for the Future of Transportation. The document
confirms that DOT recognizes that the quality and uniformity of
pavement markings, signage, and other traffic control devices support
safe and efficient driving by both human drivers and ADS-equipped
vehicles.
The research FHWA conducted on the impacts of ADS-equipped vehicles
on highway infrastructure included literature reviews, ADS industry
interviews, and national stakeholder workshops. During two workshops
held in 2019 \17\ that presented the research findings and sought to
obtain feedback and input, the highway infrastructure element that was
mentioned the most and that received a high level of support was
pavement markings. Most participants were aware of the value of
uniform, well-maintained pavement marking practices. The key reason for
their support, in the context of new technologies, is that pavement
markings provide assistance to the camera/machine vision systems that
detect and track pavement markings for ADAS features such as lane
departure warning, lane-keeping assist, and lane-centering control, and
some ADS technologies.
---------------------------------------------------------------------------

\17\ Proceedings for these workshops can be viewed at the
following Web link: https://ops.fhwa.dot.gov/automationdialogue/.
---------------------------------------------------------------------------

FHWA believes this final rule will result in more consistent
maintenance of pavement markings, which will benefit both human and
machine/camera vision, despite the fact that this rule is based on
nighttime visibility needs of older drivers. However, as more
definitive research on the needs of machine/camera vision becomes
available, FHWA may consider additional revisions to retroreflectivity
requirements along with other revisions to pavement marking standards
during future updates to the MUTCD.
In consideration of the foregoing, FHWA revises the 2009 MUTCD text
as follows.
Add a row to Table I-2 Target Compliance Dates Established by FHWA:

----------------------------------------------------------------------------------------------------------------
2009 MUTCD section
2009 MUTCD section No.(s) title Specific provision Compliance date
----------------------------------------------------------------------------------------------------------------
3A.03................................ Maintaining Minimum Implementation and 4 years from the
Retroreflectivity. continued use of a effective date of this
method that is revision of the MUTCD.
designed to maintain
retroreflectivity of
longitudinal pavement
markings (see
Paragraph 1).
----------------------------------------------------------------------------------------------------------------

Add a new reference document to Section 1A.11 Relation to Other
Publications:

Section 1A.11
``Methods for Maintaining Pavement Marking Retroreflectivity,'' (FHWA-
SA-22-028), 2020 Edition (FHWA)

Revise Section 3A.03 as follows:

Section 3A.03 Maintaining Minimum Retroreflectivity

Standard:
\01\ Except as provided in Paragraph 5, a method designed to
maintain retroreflectivity at or above 50 mcd/m\2\/lx under dry
conditions shall be used for longitudinal markings on roadways with
speed limits of 35 mph or greater.
Guidance:
\02\ Except as provided in Paragraph 5, a method designed to
maintain retroreflectivity at or above 100 mcd/m\2\/lx under dry
conditions should be used for longitudinal markings on roadways with
speed limits of 70 mph or greater.
\03\ The method used to maintain retroreflectivity should be one or
more of those described in ``Methods for Maintaining Pavement Marking
Retroreflectivity'' (see Section 1A.11) or developed from an
engineering study based on the values in Paragraphs 1 and 2.
Support:
\04\ Retroreflectivity levels for pavement markings are measured
with an entrance angle of 88.76 degrees and an observation angle of
1.05 degrees. This geometry is also referred to as 30-meter geometry.
The units of pavement marking retroreflectivity are reported in mcd/
m\2\/lx, which means millicandelas per square meter per lux.
Option:
\05\ The following markings may be excluded from the provisions
established in Paragraphs 1 and 2:
A. Markings where ambient illumination assures that the markings
are adequately visible;

[[Page 47929]]

B. Markings on streets or highways that have an ADT of less than
6,000 vehicles per day;
C. Dotted extension lines that extend a longitudinal line through
an intersection, major driveway, or interchange area (see Section
3B.08);
D. Curb markings;
E. Parking space markings; and
F. Shared-use path markings.
Support:
\06\ The provisions of this Section do not apply to non-
longitudinal pavement markings including, but not limited to, the
following:
A. Transverse markings;
B. Word, symbol, and arrow markings;
C. Crosswalk markings; and
D. Chevron, diagonal, and crosshatch markings.
\07\ Special circumstances will periodically cause pavement marking
retroreflectivity to be below the minimum levels. These circumstances
include, but are not limited to, the following:
A. Isolated locations of abnormal degradation;
B. Periods preceding imminent resurfacing or reconstruction;
C. Unanticipated events such as equipment breakdowns, material
shortages, and contracting problems; and
D. Loss of retroreflectivity resulting from snow maintenance
operations.
When such circumstances occur, compliance with Paragraphs 1 and 2
is still considered to be achieved if a reasonable course of action is
taken to resume maintenance of minimum retroreflectivity in a timely
manner according to the maintaining agency's method(s), policies, and
procedures.

Discussion Under 1 CFR Part 51

FHWA is incorporating by reference herein Revision 3, dated May
2022.
The document that FHWA is incorporating by reference is reasonably
available to interested parties, primarily State DOTs, local agencies,
and Tribal governments carrying out Federal-aid highway projects. The
documents incorporated by reference are available on the docket of this
rulemaking and at the sources identified in the regulation at Sec.
655.601(d)(2). The specific standard is discussed in greater detail
throughout this preamble.

Rulemaking Analyses and Notices

FHWA considered all comments received before the close of business
on the comment closing date. The comments are available for examination
in the docket (FHWA-2009-0139) at www.regulations.gov. FHWA also
considered comments received after the comment closing date to the
extent practicable.

Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review), and DOT Rulemaking
Policies and Procedures

Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
This action complies with Executive Orders 12866, and 13563 to improve
regulation.
The Office of Information and Regulatory Affairs has determined
that this action is a significant regulatory action within the meaning
of Executive Order 12866 and within the meaning of U.S. DOT regulatory
policies and procedures because of significant public interest.
Additionally, this action complies with the principles of Executive
Order 13563. FHWA has considered the costs and potential benefits of
this rulemaking and believes the rulemaking is being implemented in a
manner that fulfills FHWA's obligation under Section 406 of the
Department of Transportation and Related Agencies Appropriations Act,
1993 (Pub. L. 102-388; October 6, 1992), and provides flexibility for
agencies. Details on the estimated national costs are documented in the
updated economic analysis report, which is available as a separate
document under the docket number noted in the title of this document at
http://www.regulations.gov. The flexibility is documented in the new
publication titled Methods for Maintaining Pavement Marking
Retroreflectivity, to which the MUTCD refers readers.
The MUTCD already requires that pavement ``markings that must be
visible at night shall be retroreflective unless ambient illumination
assures that the markings are adequately visible'' and that ``all
markings on interstate highways shall be retroreflective.'' This final
rule includes changes to the MUTCD to provide additional guidance and
clarification, while allowing flexibility in maintaining pavement
marking retroreflectivity. The pavement markings excluded from the
final rule are not to be excluded from any other MUTCD standards. FHWA
believes that the uniform application of traffic control devices will
greatly improve traffic operations efficiency and roadway safety. The
standards, guidance, and support are also used to create uniformity and
to enhance safety and mobility at little additional expense to public
agencies or the motoring public.
Since the SNPA was published, the quality of the economic analysis
has been improved. This has resulted in revised assumptions that
lowered the estimated costs. The analysis provides a national estimate
of the costs to implement this final rule and to replace markings.
Costs for individual agencies were not computed because they would vary
based on factors such as the amount of pavement marking mileage subject
to the standards and current pavement marking practices. The analysis
estimates national first year implementation costs of $16.17 million
for all affected State and local agencies to develop maintenance
methods, purchase necessary equipment, and use their method the first
time. Cost impacts to manage pavement markings per this rule took into
consideration that States already have processes in place to manage
pavement markings, and some States will require only minor revisions to
implement the required standard. Costs associated with staff time for
smaller local agencies to develop and manage the method were reduced
from the SNPA analysis estimates based on scrutiny of the quantity of
pavement markings affected by this rulemaking that are under the
jurisdiction of these agencies. In addition, the smallest agencies
affected were determined to be more likely to have a technician
managing this technical program than an engineer.
In subsequent years, State and local agencies are expected to incur
increased costs nationwide totaling $29.07 million annually as a result
of this rule. These annual costs include $3.44 million in assessment
and management activities nationwide to determine which markings
require replacement in the following year. This final rule does not
establish compliance dates by which agencies must replace deficient
markings. However, as outlined in the economic analysis,\18\ FHWA
expects all State agencies and most other roadway agencies will replace
markings found to be deficient, so these annual costs also include an
estimated increase of

[[Page 47930]]

approximately $25.63 million per year nationally from current estimated
pavement marking replacement expenditures. These replacement costs are
lower than estimated in the SNPA analysis due to a recognition that the
variation in pavement marking practice and material usage by roadway
classification was not adequately addressed. Additional review of
available research also indicated the analysis should further stratify
service life based on factors such as traffic volume.
---------------------------------------------------------------------------

\18\ The report titled Economic Impacts of Minimum Maintained
Levels of Pavement Marking Retroreflectivity in the MUTCD can be
viewed on the docket.
---------------------------------------------------------------------------

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 $100 million or more in any single year. These
changes are not anticipated to affect, in any material way, any sector
of the economy adversely. In addition, these changes would not create a
serious inconsistency with any other Federal agency's action or
materially alter the budgetary impact of any entitlements, grants,
user-fees, or loan programs. FHWA has prepared an economic analysis,
which has been placed in the docket.
Safety studies show that adding edge lines to two-lane highways
where they were not present reduces nighttime crashes,19 20
which is likely a result of those markings providing enough
retroreflectivity to be visible to drivers at night. Therefore, FHWA
believes that lives will be saved and injuries reduced by the improved
maintenance of pavement marking retroreflectivity. What is not clear
from the research is what safety benefit is associated with specific
levels of retroreflectivity; this is where the research provides
significant contradictions. A rigorous review of the safety research
seems to indicate that no study has yet been completed where a
significant portion of the pavement markings in the study had low
enough retroreflectivity to answer conclusively the question as to a
minimum recommended retroreflectivity level. Therefore, FHWA continues
to base the minimum retroreflectivity levels in this final rule on
research indicating the driver needs for retroreflectivity rather than
on crash reduction research. As indicated in the economic analysis,
reliable crash reduction factors are not available to estimate the
safety benefits of maintaining pavement marking retroreflectivity at or
near certain minimum levels of retroreflectivity. The analysis,
therefore, calculated the number of fatalities that would need to be
reduced annually to result in benefits equal to the calculated costs of
this final rule. This break-even analysis indicated that the final rule
will achieve benefits equal to costs if it saves three lives annually.
For these reasons, FHWA finds that the expected economic benefits of
the rule will outweigh the estimated costs of the rule.
---------------------------------------------------------------------------

\19\ Sun, X., and S. Das. A Comprehensive Study on Pavement Edge
Line Implementation. FHWA/LA.13/508, April 2014.
\20\ Tsyganov, A., R. Machemehl, and N. Warrenchuk. Safety
Impact of Edge Lines on Rural Two-Lane Highways in Texas. FHWA/TX-
05/0-5009-1, September 2005.
---------------------------------------------------------------------------

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), FHWA has evaluated the effects of this final rule on
small entities, including small governments. This final rule applies to
State and local DOTs in the execution of their highway programs,
specifically with respect to the retroreflectivity of pavement
markings. In addition, pavement marking improvement is eligible for up
to 100 percent Federal-aid funding. This also applies to local
jurisdictions and Tribal governments, pursuant to 23 U.S.C. 120(c).
I hereby certify that this action will not have a significant
economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

This final rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
The economic impacts analysis shows that in the first year, before
annual replacement begins, State and local agencies are estimated to
have nationwide costs of $16.17 million to develop maintenance methods,
purchase equipment, and use their method for the first time. These are
non-recurring costs. In subsequent years, these agencies are expected
to incur increased costs nationwide totaling $29.07 million annually as
a result of this rule. These annual costs include $3.44 million in
assessment and management activities along with pavement marking
replacement expenditures of approximately $25.63 million per year
beyond current expenditures. There are no compliance dates to replace
markings that do not meet the minimum retroreflectivity. Although
agencies will still need to replace these markings, and those costs are
included in this estimate, their schedules would be based on their
method for maintaining retroreflectivity and their resources and
relative priorities. Therefore, this action will not result in the
expenditure by State, local, and Tribal governments, in the aggregate,
or by the private sector, of $155 million or more in any single year.
In addition, pavement marking replacement is 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 Assessment)

E.O. 13132 requires agencies to ensure meaningful and timely input
by State and local officials in the development of regulatory policies
that may have a substantial, direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. FHWA analyzed this action in accordance with the principles
and criteria contained in E.O. 13132 and determined that this action
would not have sufficient federalism implications to warrant the
preparation of a federalism assessment. FHWA has also determined that
this final rule would not preempt any State law or State regulation or
affect the States' ability to discharge traditional State governmental
functions.
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 highway.

Executive Order 13175 (Tribal Consultation)

FHWA has analyzed this action under E.O. 13175 and determined that
it would not have substantial direct effects on one or more Indian
Tribes, would not impose substantial direct compliance costs on Indian
Tribal governments, and would not preempt Tribal law. Therefore, a
Tribal summary impact statement is not required.

Executive Order 12898 (Environmental Justice)

E.O. 12898 requires that each Federal agency make achieving
environmental justice part of its mission by identifying and
addressing, as appropriate,

[[Page 47931]]

disproportionately high and adverse human health or environmental
effects of its programs, policies, and activities on minorities and
low-income populations. FHWA has determined that this rule does not
raise any environmental justice issues.

Executive Order 13211 (Energy Effects)

FHWA has analyzed this action under E.O. 13211, Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use. FHWA has determined that this action is not a significant energy
action under E.O. 13211 because 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 E.O. 13211 is not
required.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget for each collection of information they conduct,
sponsor, or require through regulations. FHWA has determined that this
final rule does not contain collection of information requirements for
the purposes of the PRA.

National Environmental Policy Act

FHWA has analyzed this action 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 significant effect on the quality
of the environment and is categorically excluded under 23 CFR
771.117(c)(20).

Regulation Identifier Number

A regulation identifier number (RIN) is assigned to each regulatory
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, Pavement Markings, Traffic
regulations.

Issued in Washington, DC, under authority delegated in 49 CFR
1.85:
Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.

For the reasons stated in the preamble, FHWA amends title 23, Code
of Federal Regulations, part 655, subpart F as follows:

PART 655--TRAFFIC OPERATIONS

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1. The authority for part 655 is revised 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 1.85.

Subpart F--Traffic Control Devices on Federal-Aid and Other Streets
and Highways

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2. Amend Sec. 655.601 by revising paragraphs (d) introductory text and
(d)(2)(i) to read as follows:

Sec. 655.601 Purpose.

* * * * *
(d) The material listed in this paragraph (a) of this section is
incorporated by reference into this section with the approval of the
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. To enforce any edition other than that specified in this
section, the FHWA must publish a document in the Federal Register and
the material must be available to the public. All approved material is
available for inspection at the FHWA and at the National Archives and
Records Administration (NARA). Contact Federal Highway Administration,
Office of Transportation Operations, 1200 New Jersey Avenue SE,
Washington, DC 20590, (202) 366-8043; https://ops.fhwa.dot.gov/contactus.htm. For information on the availability of this material at
NARA, email: fr.inspection@nara.gov, or go to: www.archives.gov/federal-register/cfr/ibr-locations.html. The material may be obtained
from the following source(s) in this paragraph (d).
* * * * *
(2) * * *
(i) Manual on Uniform Traffic Control Devices for Streets and
Highways (MUTCD), as follows:
(A) 2009 edition, November 4, 2009.
(B) Revision No. 1, dated May 2012.
(C) Revision No. 2, dated May 2012.
(D) Revision No. 3, dated June 2022.
(ii) [Reserved]

[FR Doc. 2022-16781 Filed 8-4-22; 8:45 am]
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