02-7912. Outdoor Advertising Control

AGENCY:

Federal Highway Administration (FHWA), DOT.

ACTION:

Notice of amended Federal/State agreement.

SUMMARY:

The Federal Highway Administration agrees with the Oregon Department of Transportation (ODOT) that the Highway Beautification Federal/State Agreement, dated August 26, 1974, between the United States of America and the State of Oregon should be amended to allow tri-vision signs, adjacent to routes controlled under the Highway Beautification Act. This change will be consistent with State law. A copy of the amended agreement will be mailed to the State of Oregon for execution.

FOR FURTHER INFORMATION CONTACT:

Mr. John Burney, Office of Real Estate Services, HRE-20, [phone]; or Mr. Robert Black, Office of Chief Counsel, HCC-31, [phone], Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

Internet users may access all comments received by the U.S. DOT Dockets, Room PL-401, by using the universal resource locator (URL): http://dms.dot.gov. It is available 24 hours each day, 365 days each year. Electronic submission and retrieval help and guidelines are available under the help section of the web site.

An electronic copy of this document may be downloaded, using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at [phone]. Internet users may reach the Office of the Federal Register's home page at: http://www.nara.gov/​fedreg and the Government Printing Office's web page at: http://www.access.gpo.gov/​nara.

Background

The Highway Beautification Act of 1965, Public Law 89-285, 79 Stat. 1028, Oct. 22, 1965, as amended (HBA), partially codified at 23 U.S.C. 131, requires the States to provide effective control of outdoor advertising in the areas adjacent to the Interstate System, the Federal-aid primary system in existence on June 1, 1991, and the National Highway System.^[1] States must provide effective control of outdoor advertising as a condition of receiving their full apportionment of Federal-aid highway funds.

Outdoor advertising may be allowed by a State in zoned or unzoned commercial or industrial areas. Signs in such areas must conform to the requirements of an agreement between the State and the Federal Government, through the FHWA, which establishes size, lighting and spacing criteria consistent with customary use. The agreement between Oregon and the FHWA was executed on August 26, 1974. The 1974 Agreement includes the provision that “No sign shall contain, include or be illuminated by any flashing intermittent, revolving, rotating or moving light or lights or moves or has any animated or moving parts.”^[2]

On July 28, 1999, the 70th Oregon Legislative Assembly passed Senate Bill 855, which made an exception in Oregon's outdoor advertising control law to allow tri-vision signs (1999 Or. Rev. Stat. Vol. 9, amending title 31, ORS, chap. 377. See Or. Rev. Stat., title 31, sections 377.710 and 377.720(d)). Tri-vision signs are composed of a series of three-sided rotating slats arranged side by side, either horizontally or vertically, that are rotated by an electromechanical process, capable of displaying a total of three separate and distinct messages, one message at a time. Prior to this change, outdoor advertising signs subject to Oregon's law could not have moving parts. This change created an exception for the tri-vision sign.

In July 1996, the FHWA issued a policy memorandum^[3] indicating that the FHWA will concur with a State that can reasonably interpret its State/Federal agreement to allow changeable message signs if such interpretation is consistent with State law. The interpretation is limited to conforming signs, which are signs permitted under 23 U.S.C. 131(d). Applying updated technology to nonconforming signs would be considered a substantial change and inconsistent with 23 CFR 750.707(d)(5). Many States allow tri-vision signs. The frequency of message change and limitation in spacing for these signs is determined by each State.

In April 1980 the FHWA adopted a procedure to be followed if a State requested a change in the Federal/State agreement. In accordance with this procedure, the State of Oregon first submitted its proposed change, along with the reasons for the change and the effects of the change, to the FHWA Division Office in Oregon. The Oregon Department of Transportation (ODOT) held a public hearing on November 8, 2000, regarding its proposal to amend the Federal/State agreement. The hearing generated fifteen comments.^[4]

Discussion Of Comments

The proposed amended agreement was published in the Federal Register on August 17, 2001, at 66 FR 43291. We received one comment to the docket. The Oregon Roadside Council, a statewide organization dedicated to preserving Oregon's scenic beauty, objected to the change. It maintained that the tri-vision signs would divert a driver's attention and would detract from safety, especially in areas of increased traffic congestion.

The FHWA is certainly concerned with the safety of the motoring public, and one of the bases of the HBA is “to promote the safety * * * of public travel.” 23 U.S.C. 131(a). Tri-vision signs do not appear to compromise the safety of the motoring public. Under Oregon law, each of the three faces in the tri-vision sign will be displayed for at least eight seconds. The next face must rotate into position within four seconds. A majority of the States allow tri-vision signs, with the time periods for displaying and rotating the sign faces being similar to Oregon's statutory time periods. There have been no reports of increases in traffic accidents in those States, due to tri-vision signs being installed adjacent to highways.

The Oregon law requires each tri-vision sign to have three permits. Oregon has “frozen” the statewide number of permits for off-premise billboards to approximately 1,700, with approximately 500 permits still unused. Tri-vision billboards should help ultimately to reduce the number of separate billboard sites.

Oregon and the FHWA have completed the above procedure up to the point of publishing the FHWA's decision in the Federal Register. The FHWA has decided the Federal/State agreement between the FHWA and the State of Oregon should be amended as proposed. A copy of the amended agreement will be mailed to the State of Oregon for execution and will then be returned to the FHWA for signature.

Amendment to the Federal/State Agreement

The Federal/State Agreement “For Carrying Out the National Policy Relative to Control of Outdoor Advertising in Areas Adjacent to the National System of Interstate and Defense Highways and the Federal-Aid Primary System” (the Agreement) made and entered into on August 26, 1974, between the United States of America represented by the Secretary of Transportation acting by and through the Federal Highway Administrator and the State of Oregon shall include a new definition of Tri-vision signs in Section I. Definitions to read as follows:

O. Tri-Vision sign means an outdoor advertising structure that contains display surfaces composed of a series of three sided rotating slats arranged side by side, either horizontally or vertically, that are rotated by an electromechanical process, capable of displaying a total of three separate and distinct messages, one message at a time.

III: State Control, Paragraph A, Lighting (1) should be amended to read as follows:

No sign shall contain, include or be illuminated by any flashing intermittent, revolving, rotating or moving light or lights or moves or has any animated or moving parts; however, this paragraph does not apply to a traffic control sign or signs providing only public information such as time, date, temperature, weather or similar information and Tri-vision signs. Tri-vision signs, however, shall not contain, include or be illuminated by any flashing intermittent, revolving, rotating or moving light or lights. The frequency of message change is determined by the State.

Authority: 23 U.S.C. 131; 23 U.S.C. 315; 49 CFR 1.48.

Issued on: March 27, 2002.

Mary E. Peters,

Administrator, Federal Highway Administrator.

Footnotes

1.  The National Highway System, described in 23 U.S.C. 103(b), consists of the Interstate Highway System and other urban and rural principal arterial routes.

2.  The agreement between the State of Oregon and the FHWA is available on-line through the Document Management System (DMS) at the following URL: http://dms.dot.gov under FHWA Docket No. FHWA-2001-9706.

3.  The 1996 FHWA policy memorandum is available on-line through the Document Management System (DMS) at the following URL: http://dms.dot.gov under the FHWA Docket No. FHWA-2001-9706.

4.  The fifteen written submissions are available on line through the Document Management System (DMS) at http://dms.dot.gov/​ under FHWA Docket No. FHWA-2001-9706.