[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, [email protected]; or Mr. William 
Winne, Office of the Chief Counsel, (202) 366-1397, 
[email protected], Federal Highway Administration, 1200 New Jersey 
Avenue SE, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: 

Executive Summary

I. Purpose of the Regulatory Action

    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.''

[[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

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

0
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

0
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: [email protected], 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]
BILLING CODE 4910-22-P