01-20722. Outdoor Advertising Control

AGENCY:

Federal Highway Administration (FHWA), DOT.

ACTION:

Notice and request for comments.

SUMMARY:

The Oregon Department of Transportation (ODOT) proposes to amend the Highway Beautification Federal/State Agreement dated August 26, 1974, between the United States of America represented by the Secretary of Transportation and the State of Oregon, in order to permit the use of tri-vision signs adjacent to routes controlled under Highway Beautification Act.

DATES:

Comments must be received on or before September 17, 2001.

ADDRESSES:

Mail or hand deliver comments for the docket number that appears in the heading of this documents to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001, or submit electronically at http://dms.dot.gov/​submit. All comments should include the docket number that appears in the heading of this document. All comments received will be available for examination and copying at the above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard or you may print the acknowledgement page that appears after submitting comments electronically.

FOR FURTHER INFORMATION CONTACT:

John Burney, Realty Specialist, Office of Real Estate Services, HEPR [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 and Filing

You may submit or retrieve comments online through the Document Management System (DSM) at: http://dms.dot.gov/​submit. Acceptable formats include: MS Word (versions 95 to 97), MS Word for Mac (versions 6 to 8), Rich Text File (RTF), American Standard Code Information Interchange (ASCII)(TXT), Portable Document Format (PDF), and WordPerfect (versions 7 to 8). The DMS 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 also be downloaded by using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at [phone]. Internet users may also 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 (HBA), partially codified at 23 U.S.C. 131, requires States to provide effective control of outdoor advertising in areas adjacent to both the Interstate System and the Federal-aid primary system. States must provide effective control as a condition of receiving their full apportionment of Federal-aid highway funds. Outdoor advertising is permitted in zoned or unzoned commercial and industrial areas. In order to promote the reasonable, orderly and effective display of outdoor advertising, States entered into individual agreements with the Federal Government through the FHWA, which established size, spacing, and lighting criteria for signs in commercial and industrial areas consistent with customary use in each State.

Among other things, the agreement between Oregon and the FHWA was executed August 26, 1974.^[1] The 1974 agreement states 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.”

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). 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 ^[2] 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. 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.

The State of Oregon is seeking an amendment to its Federal/State Agreement to allow tri-vision signs as defined at 1999 ORS Chapter 377. The Oregon statute, defines a tri-vision sign as follows:

“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, provided the rotation from one message to another message is no more frequent than every eight seconds, and the actual rotation process is accomplished in four seconds or less. A Tri-Vision sign is, by Oregon statute, three signs and is required to have three outdoor advertising permits of equivalent type.

In April 1980, the FHWA adopted a procedure for States to follow in order to make changes in the Federal/State agreement. A State must first submit its proposed change, along with the reasons for the change and the effects of such change, to the FHWA Division Office. The division and headquarters offices review and comment on the proposal. If the concept is approved, the State must then hold public hearings on the proposed change to receive comments from the public. If the State then wishes to amend the agreement, it must submit to the FHWA the full justification for the change, the record of the hearings, and the assessment of the impact. These submissions will be published in the Federal Register for comments. Comments on the proposed amended agreement will then be evaluated by the FHWA. The FHWA then decides if the agreement should be amended as proposed and publishes its decision in the Federal Register. An amended agreement will then be sent to the State for signature.

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 remained open for written testimony through November 15, 2000. Fifteen comments were submitted.^[3] Fourteen of the submissions were in favor of the proposed amendment; one was opposed. Those in favor of the amendment were from Outdoor Advertisers of America, outdoor advertising companies, the Oregon State Senate, a private school, a non-profit sports authority, the Confederated Tribes of The Grand Ronde Community of Oregon, and The Boys and Girls Clubs of Portland Metropolitan Area. Opposition to the amendment was from the Oregon Roadside Council.

The Oregon DOT cites several points as justification for the proposed revision to the 1974 Federal/State Agreement. The Oregon statute was changed to allow tri-visions signs. Prior to that change, outdoor advertising signs subject to Oregon's law could not have moving parts. The law change made an exception for the tri-vision signs. The effects of the amendment are believed to be modest. In the October 31, 2000, Oregon DOT News Release, Jim Odom of ODOT's Outdoor Advertising Program is quoted as saying that, “Since the signs display three messages, the legislature determined that each sign will require three permits. In the mid-1970's, Oregon established a cap of approximately 1,700 permits that would allow billboards visible to State highways. Of the 1,700 permits, about 500 remain unused. Each of the tri-vision signs will take three of the remaining unused permits out of the inventory.” ^[4] Jim Oden, of the Oregon DOT, further states, “The effect of movement of the signs is at a frequency of eight seconds, with the transition time between messages at four seconds or less. It is believed this frequency minimizes distraction.”

Additionally, Jim Oden, further states that, “Also, a tri-vision sign is by Oregon statute three signs. Therefore, such a sign is required to have three outdoor advertising permits of equivalent type. This was specifically made part of Senate Bill 855, as a condition of allowing Tri-Vision signs in Oregon, and that being a stated term of the legislation, is also understood to be a condition of this amendment ^[5] .”

Many States now allow Tri-Vision signs and as Oregon now proposes. Therefore, this proposed change in Oregon will not have any precedential impact for other States.

The Proposed Change

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 now reads at Section III: State Control, Paragraph A, Lighting (1) 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.

The amended agreement would 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.

Section I. Definitions. A definition for Tri-vision signs would be included in this section as follows:

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, or one message at a time.

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

Issued on: August 13, 2001.

Vincent F. Schimmoller,

Deputy Executive Director.

Footnotes

1.  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.

2.  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.

3.  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.

4.  the news release, “ODOT to hold public heariing on tri-visioins signs,” dated October 31, 2000, is available at the following URL: htt://www.odot.state.or.us/​comm/​news/​2000103105.htm.

5.  See footnote 4.