Federal Register / Vol. 69, No. 230 / Wednesday, December 1, 2004 / Rules and Regulations 69815

1Federal-aid systems are defined in 23 U.S.C. 101 

and 103.

750 Administrative practice and 

procedure, Exports, Reporting and 

recordkeeping requirements.

Eileen Albanese, 

Director, Office of Exporter Services.

[FR Doc. 04–26518 Filed 11–30–04; 8:45 am] 

BILLING CODE 3510–33–P

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration 

23 CFR Part 655

[FHWA Docket No. FHWA–2004–17321] 

RIN 2125–AF02

National Standards for Traffic Control 

Devices; the Manual on Uniform Traffic 

Control Devices for Streets and 

Highways; Specific Service and 

General Service Signing for 24-Hour 

Pharmacies

AGENCY: Federal Highway 

Administration (FHWA), DOT.

ACTION: Final rule.

SUMMARY: The FHWA published an 

interim final rule on May 10, 2004, that 

amended the 2003 Edition of the 

Manual on Uniform Traffic Control 

Devices (MUTCD) to permit the use of 

Specific Service and General Service 

signing to assist motorists in locating 

licensed 24-hour pharmacy services 

open to the public. Those changes were 

designated as Revision No. 1 to the 2003 

Edition of the MUTCD, and they became 

effective on July 21, 2004. In the interim 

final rule, the FHWA provided a 50-day 

comment period for the public to review 

and make comment on the technical 

details. The FHWA adopts as final the 

interim rule for Revision No. 1, with 

certain changes to the technical details 

to address pertinent comments to the 

docket. The MUTCD is incorporated by 

reference in 23 CFR part 655, subpart F, 

and recognized as the national standard 

for traffic control devices used on all 

public roads.

DATES: This regulation is effective 

January 3, 2005. The incorporation by 

reference of the publication listed in 

this rule is approved by the Director of 

the Federal Register as of January 3, 

2005.

FOR FURTHER INFORMATION CONTACT: Mr. 

Ernest Huckaby, Office of 

Transportation Operations (HOTO–1), 

(202) 366–9064, or Mr. Raymond 

Cuprill, Office of the Chief Counsel, 

(202) 366–0791, Federal Highway 

Administration, 400 Seventh Street, 

SW., Washington, DC 20590–0001. 

Office hours are from 7:45 a.m. to 4:15 

p.m., e.t., Monday through Friday, 

except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access 

This document and all comments 

received by the U.S. DOT Docket 

Facility, Room PL–401, may be viewed 

through the Docket Management System 

(DMS) at http://dms.dot.gov. The DMS 

is available 24 hours each day, 365 days 

each year. Electronic retrieval help and 

guidelines are available under the help 

section of this Web site. 

An electronic copy of this document 

may be downloaded by using a 

computer, modem and suitable 

communications software from the 

Government Printing Office’s Electronic 

Bulletin Board Service at (202) 512–

1661. Internet users may reach the 

Office of the Federal Register’s home 

page at http://www.archives.gov and the 

Government Printing Office’s Web page 

at http://www.gpoaccess.gov/nara. 

Background 

On January 23, 2004, the President 

signed, thereby enacting into law, the 

Consolidated Appropriations Act, Fiscal 

Year 2004 (the Act), Public Law 108–

199, 118 Stat. 3. Division F of the Act 

(the Transportation, Treasury, and 

Independent Agencies Appropriations 

Act, 2004, at 118 Stat. 279), Title I, 

section 124, directs the Secretary of 

Transportation to amend the MUTCD to 

include a provision permitting 

information to be provided to motorists 

to assist motorists in locating licensed 

24-hour pharmacy services open to the 

public. The Act also allows placement 

of logo panels that display information 

disclosing the names or logos of 

pharmacies that are located within three 

miles of an interchange on the Federalaid system.1

The FHWA published an interim final 

rule on May 10, 2004, at 69 FR 25828, 

that amended the 2003 Edition of the 

Manual on Uniform Traffic Control 

Devices (MUTCD) to implement the 

requirements of the Act and provide for 

the uniformity of signing for pharmacy 

services when jurisdictions choose to 

install such signs. Those changes were 

designated as Revision No. 1 to the 2003 

Edition of the MUTCD, and they became 

effective on July 21, 2004. In the interim 

final rule, the FHWA provided a 50-day 

comment period for the public to review 

and make comment on the technical 

details. Based on the comments received 

and its own experience, the FHWA is 

adopting as final the interim rule for 

Revision No. 1, with certain changes to 

the technical details to address 

pertinent comments to the docket. 

The text of this Revision No. 1 and the 

text of the 2003 Edition of the MUTCD 

with Revision No. 1 final text 

incorporated are available for inspection 

and copying as prescribed in 49 CFR 

part 7 at the FHWA Office of 

Transportation Operations. 

Furthermore, final Revision No. 1 

changes are available on the MUTCD 

Internet site (http://

mutcd.fhwa.dot.gov). The entire 

MUTCD text with final Revision No. 1 

text incorporated is also available on 

this Internet site. 

Summary of Comments 

The FHWA received 36 letters 

submitted to the docket, of which four 

were duplicates of letters previously 

submitted to the docket. Comments 

were received from the National 

Committee on Uniform Traffic Control 

Devices (NCUTCD), four State 

Departments of Transportation, four 

members of Congress and a Senator all 

representing the State of Illinois, two 

national organizations representing 

pharmacy businesses, six other national 

organizations representing a variety of 

interests, nine organizations 

representing retail merchants or drug 

stores in individual States, one major 

national chain drug store company, and 

four individual private citizens. The 

FHWA has reviewed and analyzed all 

the comments received. General 

comments are discussed first, followed 

by discussion of significant comments 

and adopted changes in each of the 

individual sections of the MUTCD 

affected by this final rule. 

Discussion of General Comments—Part 

2 Signs 

Nearly all the letters to the docket 

expressed either support for or 

opposition to the general concept of 

adding signing for 24-hour pharmacies 

to the MUTCD. The comments from the 

four members of Congress and the 

Senator representing the State of Illinois 

were in support of the changes. The 

FHWA was required by the law 

described above to add pharmacy 

signing to the MUTCD and, as a result, 

the interim final rule solicited 

comments only on the technical details 

of the signing and not the general 

concept. The comments we received in 

opposition to the general concept 

provided insufficient information to 

suggest that the FHWA should seek 

legislative relief at this time.

69816 Federal Register / Vol. 69, No. 230 / Wednesday, December 1, 2004 / Rules and Regulations 

Discussion of Section 2D.45 General 

Service Signs (D9 Series) 

A private citizen commented that the 

MUTCD changes included in the 

interim final rule went beyond the 

legislative mandate by including 

General Service signs as well as Specific 

Service (logo) signs, and that this was 

inappropriate. Although General Service 

signs for 24-hour pharmacies were not 

specifically mentioned in the law, these 

were addressed in the interim final rule 

because some States have no program 

for Specific Service signs and only use 

General Service signs. Also, in urban 

areas it is often impractical to provide 

Specific Service signing due to close 

spacing of interchanges and, in these 

conditions, many States use General 

Service signs instead as a stand-alone 

supplemental sign (such as the D9–18 or 

D9–18a) or as sets of individual D9 

series signs attached to (supplementing) 

interchange guide signs. Therefore, the 

FHWA retains the General Service signs 

for 24-hour pharmacies in this final 

rule. 

A national association representing 

pharmacists commented that eligibility 

for signing should be extended to 

pharmacies that are open less than 24 

hours per day. Many other commenters, 

however, supported limiting the signing 

eligibility to 24-hour pharmacies, stating 

that there is a need for access to 

pharmacy services 24 hours a day and 

that signing leading travelers to a closed 

pharmacy would not be in the public 

interest. Because of these reasons and 

the fact that the legislation was specific 

in directing that eligibility be limited to 

24-hour pharmacies, the FHWA 

declines to make any change to the 24 

hours per day criterion for eligibility for 

General Service signing as contained in 

the interim final rule. This discussion 

and decision also apply to the similar 

criterion for pharmacy signing eligibility 

as stated in other applicable sections of 

Part 2 of the MUTCD, and the FHWA 

makes minor editorial changes to the 

text of various sections in Part 2 to add 

the words ‘‘24-hour’’ preceding 

‘‘pharmacy’’ where needed for clarity. 

A national association representing 

chain drug stores commented that the 

signing eligibility requirement for a 

licensed pharmacist to be on duty ‘‘at all 

times’’ and ‘‘7 days per week’’ are too 

inflexible, since pharmacists could be 

‘‘on a break’’ and since some 24-hour 

pharmacies are closed on some 

holidays. The FHWA declines to make 

a change in these requirements as stated 

in the interim final rule. The FHWA 

believes that the intent of the legislation 

is to assure that road users can locate 

pharmacy services that are available at 

all times. A pharmacist can be on a 

‘‘break’’ and still be on duty in the 

pharmacy, and in all probability will 

also be present on the pharmacy 

premises during the break. The service 

availability criterion for other 24 hours 

per day services, such as hospitals, 

emergency services, etc., is stated as ‘‘24 

hour service, 7 days per week’’ in 

Section 2D.45 and these facilities are in 

fact open for service on holidays. States 

could make provisions in their service 

signing eligibility policies to account for 

pharmacist breaks and holidays, 

particularly if their individual State 

laws make reference to these situations 

and how they are to be handled. 

The NCUTCD and a private citizen 

commented that the eligibility criteria 

for pharmacy signing should be 

modified to add that a State-licensed 

pharmacist must be ‘‘present’’ as well as 

‘‘on duty’’ 24 hours per day, 7 days per 

week. The FHWA agrees with this 

comment and changes the text of 

Sections 2D.45, 2E.51, and 2F.01 

accordingly. For a pharmacy to truly 

offer its prescription-dispensing services 

on a 24 hours per day basis, it is 

necessary that a licensed pharmacist be 

physically present at all times. It is 

possible for a pharmacist to be ‘‘on 

duty’’ in the employ of the individual 

pharmacy or of the pharmacy chain 

company that owns or operates the 

pharmacy, but not physically present 

(such as one ‘‘late night’’ pharmacist 

‘‘shared’’ between two or more stores in 

a given city or region). If a pharmacist 

must travel to the pharmacy from some 

other location during late night hours if 

a road user needs his or her services, 

delays would result in filling the needed 

prescription. This would be inconsistent 

with the intent of the legislation. 

Adding the requirement for a licensed 

pharmacist to be ‘‘present’’ as well as on 

duty clarifies the intent. 

The American Pharmacists 

Association (APhA), a national 

organization representing pharmacists, 

suggested that the D9–20 pharmacy 

symbol sign shown in Figure 2D–11 

General Service Signs in the interim 

final rule should use a different design. 

Specifically, the APhA suggested that 

the ‘‘One Symbol for Pharmacy’’ design 

be used instead of the bold ‘‘Rx’’

symbol. The design of that symbol 

(hereafter referred to as ‘‘the APhA 

symbol’’), features an ‘‘Rx’’ with the ‘‘x’’

visually less distinct from the ‘‘R’’ than 

in the symbol used by the FHWA in the 

interim final rule (hereafter referred to 

as ‘‘the FHWA symbol’’). Also, inside 

the loop of the ‘‘R’’ of the APhA symbol 

are graphical stylized representations of 

three human figures (a man, a woman, 

and a child.) The APhA symbol is more 

visually cluttered than the FHWA 

symbol and would therefore provide a 

legibility distance considerably less 

than that of the FHWA symbol. There is 

no research indicating that the APhA 

symbol is more recognizable by the 

traveling public than the FHWA symbol. 

The FHWA believes that the simplicity 

and boldness of the FHWA symbol will 

aid in recognition, conspicuity, and 

legibility for road users, as compared to 

the APhA symbol. Also, the APhA 

comments state that that organization 

trademarked the APhA symbol in 1993. 

Because patented or trademarked 

symbols cannot be included in the 

MUTCD, the FHWA would require that 

the symbol be released to the public 

domain. Although the comments 

indicate that APhA would be willing to 

allow the FHWA to use the symbol, that 

is different from placing it into the 

public domain. It is likely that the 

APhA would want to retain its 

trademark so that the symbol could be 

used for other purposes regarding 

pharmacies and pharmacists, such as 

letterhead, business signs, etc. For these 

reasons, the FHWA believes that the 

pharmacy symbol shown for the D9–20 

sign in the interim final rule is a better 

alternative to the APhA symbol and 

therefore makes no change in the 

symbol design. 

The NCUTCD, 3 State highway 

authorities, and one private citizen 

suggested that the D9–20a ‘‘24 HR’’

plaque shown with the D9–20 pharmacy 

symbol in Figure 2D–11 in the interim 

final rule should be eliminated. These 

commenters stated that ‘‘24 HR’’

plaques are not required in the MUTCD 

for other services that must be available 

24 hours per day in order to be eligible 

for signing (such as hospitals and 

emergency services). 

A comment from a national chain 

drug store company supported the ‘‘24 

HR’’ plaque because of the information 

and benefit it provides to travelers.

The FHWA believes that, although 

other services that must operate 24 

hours per day to be eligible for signing 

do not require the use of a ‘‘24 HR’’

plaque, there is good reason to require 

the D9–20a ‘‘24 HR’’ plaque with the 

D9–20 Pharmacy symbol. Most road 

users expect and understand that a 

hospital must be open 24 hours per day; 

however, this is not the case with 

pharmacies. Most pharmacies are not 

open 24 hours per day, but the 

legislation specifically limits eligibility 

to 24-hour pharmacies. Therefore, it is 

necessary that road users being guided 

to a 24-hour pharmacy by these signs be 

advised that it is in fact a 24-hour 

pharmacy that can be accessed via the 

signed exit. Otherwise, there would be

Federal Register / Vol. 69, No. 230 / Wednesday, December 1, 2004 / Rules and Regulations 69817

doubt in the road user’s mind as to 

whether or not to exit if he or she were 

seeking the pharmacy services during 

the middle of the night. Also, if the 

plaque were made an option rather than 

a requirement, then some States might 

use it and others would not, and this 

lack of uniform application would lead 

to road user confusion. The FHWA 

retains the required use of the D9–20a 

plaque with the D9–20 pharmacy 

symbol sign as stated in the interim 

final rule. 

Discussion of Section 2E.51 General 

Services Signs 

As stated earlier in the discussion of 

comments on Section 2D.45 General 

Service Signs, the FHWA retains the 

required use of the D9–20a ‘‘24 HR’’

plaque with the D9–20 pharmacy 

symbol General Service sign. For 

consistency with the principles stated in 

that discussion, the FHWA modifies 

Figure 2E–42 Examples of General 

Service Signs (with Exit Numbering) 

accordingly. In the D9–18 sign (with six 

service symbols) shown as the lower 

right sign of the 4 signs shown in the 

figure, the ‘‘Rx’’ symbol is shifted 

slightly upward on the sign so that it is 

closer to the lodging symbol above it, 

and the legend ‘‘24 HR’’ is added 

underneath the ‘‘Rx’’ symbol. Also, in 

the D9–18a sign shown as the lower left 

sign of the 4 signs shown in the figure, 

the legend ‘‘24 HR’’ is added to precede 

the word ‘‘PHARMACY’’. 

The NCUTCD commented that the 

order of the services shown on the D9–

18a word message sign in the lower left 

of the figure should be modified so that 

‘‘24 HR PHARMACY’’ would be above 

‘‘HOSPITAL.’’ The NCUTCD stated that 

this would avoid potential confusion 

with a hospital that has a pharmacy. 

The FHWA agrees with this comment 

and makes the change in Figure 2E–42. 

Some hospitals have pharmacies that 

serve hospital inpatients but not 

travelers, and a road user could 

misinterpret the two last lines of the 

D9–18a word message sign as being a 

single phrase ‘‘hospital pharmacy,’’

rather than two separate services, and 

infer that the pharmacy services might 

not be available to the traveler. 

Changing the order of the services such 

that hospital is on the bottom line will 

help prevent such a misinterpretation. 

For consistency with this change in the 

figure, the FHWA also modifies the last 

sentence of the fourth Option statement 

of Section 2E.51 to delete the phrase ‘‘in 

the last position.’’

Discussion of Section 2F.01 Eligibility 

A few commenters suggested that the 

maximum distance of 3 miles from an 

interchange on the Federal-aid highway 

system to be eligible for pharmacy 

signing should be extended to up to 15 

miles in cases where eligible 

pharmacies do not exist within 3 miles. 

These commenters cited the existing 

Option statement in Section 2F.01 that 

provides for extending the distance 

limit up to a maximum of 15 miles from 

an interchange for signing eligibility for 

other services, such as gas, food, and 

lodging, if those facilities within 3 miles 

are not available or choose not to 

participate in the program. 

Other commenters stated their 

specific support of limiting eligibility to 

pharmacies within 3 miles and not 

extending that limit. These commenters 

stated that requiring the pharmacy to be 

within 3 miles is self-limiting and serve 

the best interests of travelers in need of 

pharmacy services. Further, the 

legislation was specific in directing that 

eligibility be limited to pharmacies 

within 3 miles of an interchange on the 

Federal-aid highway system. 

Accordingly, the FHWA declines to 

make any change to the maximum 

distance of 3 miles as a criterion for 

eligibility for Specific Service signing as 

contained in the interim final rule. This 

discussion and decision also apply to 

the similar criterion for pharmacy 

signing eligibility as stated in other 

applicable sections of Part 2 of the 

MUTCD. 

A State highway authority 

commented that the phrase ‘‘in either 

direction’’ in both the last paragraph of 

the second Standard statement and the 

first paragraph of the second Guidance 

statement should be revised to ‘‘in any 

direction’’ to clarify that pharmacies are 

not limited to only one direction from 

an interchange. The FHWA agrees with 

this comment and makes this editorial 

change in both places in this final rule. 

‘‘Any direction’’ is more accurate and 

inclusive than ‘‘either direction,’’ since 

there could be more than two directions 

that can be traveled away from a given 

interchange. 

Discussion of Section 2F.02

Application 

In the interim final rule, the first 

paragraph of the Option statement was 

modified to remove the list of various 

services that may be signed on any class 

of highway. The resulting text of this 

paragraph in the interim final rule 

stated, ‘‘Specific Service signs may be 

used on any class of highway.’’ The 

NCUTCD recommended that this 

wording is unnecessary because it 

repeats a similar statement that is in the 

first Option statement in Section 2F.01. 

The FHWA agrees that this is an 

unnecessary duplication and removes 

the first paragraph of the Option 

statement in Section 2F.02 in this final 

rule. 

Discussion of Chapter 2H

Recreational and Cultural Interest Area 

Signs 

Comments from the NCUTCD, one 

State highway authority, and one 

private citizen opposed the addition of 

the RM–230 24-Hour Pharmacy symbol 

sign in the series of brown and white 

recreational and cultural interest area 

symbol signs. These commenters stated 

that pharmacy signing is not needed as 

a recreational area sign. 

A national chain drug store company 

stated its support for adding the RM–

230 sign in Chapter 2H, citing 

consistency with similar brown and 

white symbol signs for gas, food, and 

lodging that are included in Chapter 2H. 

The FHWA agrees and declines to 

remove the RM–230 sign that was 

included in Chapter 2H in the interim 

final rule. Brown and white symbol 

signs for gas, food, and lodging are 

included in Chapter 2H because these 

services are often available within 

recreational areas such as National 

Parks, and thus there can be a need to 

provide guide signing to those facilities 

from the park entrance road or from 

other areas within the park. Also, there 

are certain park roadways in some 

urbanized areas, such as National 

Historical Parkways, and some linear 

park roads such as adjacent to Grand 

Tetons National Park, that also provide 

access to nearby towns and cities where 

24-hour pharmacies may exist and may 

meet the criteria for signing. Chapter 2H 

provides for the use of brown and white 

General Service signing on park 

roadways. Therefore, it is appropriate 

and consistent to include in Chapter 2H 

a brown and white version of the 

pharmacy symbol sign for use if General 

Service signing for a 24-hour pharmacy 

is needed on a roadway of this type.

Rulemaking Analyses and Notices 

Executive Order 12866 (Regulatory 

Planning and Review) and U.S. DOT 

Regulatory Policies and Procedures 

The FHWA has determined that this 

action is not a significant regulatory 

action within the meaning of Executive 

Order 12866 or significant within the 

meaning of the U.S. Department of 

Transportation regulatory policies and 

procedures. Including 24-hour 

pharmacies in General and Specific 

Service signs is required by law (see 

section 124 Division F, Title I, of Public 

Law 108–199, January 23, 2004). States 

and other jurisdictions are not required 

to install signs for pharmacy services,

69818 Federal Register / Vol. 69, No. 230 / Wednesday, December 1, 2004 / Rules and Regulations 

but if they elect to do so, these 

amendments to the MUTCD will create 

uniformity in how the Pharmacy signs 

are used on public roads. These changes 

will not adversely affect, in a material 

way, any sector of the economy. In 

addition, these changes will not create 

a serious inconsistency with any other 

agency’s action or materially alter the 

budgetary impact of any entitlements, 

grants, user fees, or loan programs; nor 

will the changes raise any novel legal or 

policy issues. Therefore, a full 

regulatory evaluation is not required. 

Regulatory Flexibility Act 

In compliance with the Regulatory 

Flexibility Act (RFA) (Pub. L. 96–354, 5 

U.S.C. 601–612) the FHWA has 

evaluated the effects of this action on 

small entities and has determined that 

this action will not have a significant 

economic impact on a substantial 

number of small entities. This action 

adds General Service and Specific 

Service signing for optional use by 

States to provide motorist information 

concerning pharmacies in order to aid 

the traveling public. States are not 

included in the definition of small 

entity set forth in 5 U.S.C. 601. For these 

reasons, the RFA does not apply and the 

FHWA certifies 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 will not impose 

unfunded mandates as defined by the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, March 22, 1995, 109 

Stat. 48). This final rule will not result 

in the expenditure by State, local, and 

tribal governments, in the aggregate, or 

by the private sector, of $120.7 million 

or more in any one year (2 U.S.C. 1532). 

States and other jurisdictions are not 

required to install signs for pharmacy 

services, but if they elect to do so, these 

amendments to the MUTCD will create 

uniformity in how the signs are used on 

public roads. 

Executive Order 13132 (Federalism) 

This action has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132, dated August 4, 1999, and it has 

been determined that this action does 

not have a substantial direct effect or 

sufficient federalism implications on 

States that would limit the 

policymaking discretion of the States. 

The FHWA has also determined that 

this action does 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. 

These amendments are 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. The 

overriding safety benefits of the 

uniformity prescribed by the MUTCD 

are shared by all of the State and local 

governments, and changes made to this 

rule are directed at enhancing safety. To 

the extent that these amendments 

override any existing State requirements 

regarding traffic control devices, they do 

so in the interest of national uniformity. 

Executive Order 12372 

(Intergovernmental Review) 

Catalog of Federal Domestic 

Assistance Program Number 20.205, 

Highway Planning and Construction. 

The regulations implementing Executive 

Order 12372 regarding 

intergovernmental consultation on 

Federal programs and activities apply to 

this program. 

Paperwork Reduction Act of 1995

This action does not contain a 

collection of information requirement 

under the Paperwork Reduction Act of 

1995, 44 U.S.C. 3501–3520. 

Executive Order 13175 (Tribal 

Consultation) 

The FHWA has analyzed this action 

under Executive Order 13175, dated 

November 6, 2000, and believes that it 

will not have substantial direct effects 

on one or more Indian tribes; will not 

impose substantial direct compliance 

costs on Indian tribal governments; and 

will not preempt tribal law. The 

requirements set forth in this final rule 

do not directly affect one or more Indian 

tribes. Therefore, a tribal summary 

impact statement is not required. 

Executive Order 13211 (Energy Effects) 

The FHWA has analyzed this action 

under Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that this is not a significant 

energy action under that order because 

it is not a significant regulatory action 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. 

National Environmental Policy Act

The agency has analyzed this action 

for the purposes of the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321–4347 et seq.) and has 

determined that it will not have any 

effect on the quality of the environment. 

Executive Order 12630 (Taking of 

Private Property) 

The FHWA has analyzed this final 

rule under Executive Order 12630, 

Government Actions and Interference 

with Constitutionally Protected Property 

Rights. The FHWA does not anticipate 

that this action will effect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630. 

Executive Order 12988 (Civil Justice 

Reform) 

This action meets applicable 

standards in Sections 3(a) and 3(b)(2) of 

Executive Order 12988, Civil Justice 

Reform, to minimize litigation, 

eliminate ambiguity, and reduce 

burden. 

Executive Order 13045 (Protection of 

Children) 

The FHWA has analyzed this action 

under Executive Order 13045, 

Protection of Children from 

Environmental Health Risks and Safety 

Risks. The FHWA certifies that this 

action will not cause an environmental 

risk to health or safety that may 

disproportionately affect children. 

Regulation Identification Number 

A regulation identification 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, Signs and 

symbols, Traffic regulations.

Issued on: November 22, 2004. 

Mary E. Peters, 

Federal Highway Administrator.

■ In consideration of the foregoing, 

FHWA adopts as final the interim final 

rule published May 10, 2004 (69 FR 

25828), with the following change:

PART 655—TRAFFIC OPERATIONS

■ 1. The authority citation for part 655 

continues to read as follows:

Authority: 23 U.S.C. 101(a), 104, 109(d), 

114(a), 217, 315, and 402(a); 23 CFR 1.32; 

and 49 CFR 1.48(b).

Federal Register / Vol. 69, No. 230 / Wednesday, December 1, 2004 / Rules and Regulations 69819

Subpart F—Traffic Control Devices on 

Federal-Aid and Other Streets and 

Highways—[Amended]

■ 2. Amend §655.601(a), to read as 

follows:

§ 655.601 Purpose.

* * * * *

(a) Manual on Uniform Traffic Control 

Devices for Streets and Highways 

(MUTCD), 2003 Edition, including 

Revision No.1, FHWA, dated November 

2004. This publication is incorporated 

by reference in accordance with 5 U.S.C. 

552 (a) and 1 CFR part 51 and is on file 

at the National Archives and Record 

Administration (NARA). For 

information on the availability of this 

material at NARA call (202) 741–6030, 

or go to http://www.archives.gov/

federal_register/

code_of_federal_regulations/

ibr_locations.html. It is available for 

inspection and copying at the Federal 

Highway Administration, 400 Seventh 

Street, SW., Room 3408, Washington, 

DC 20590, as provided in 49 CFR part 

7. The text is also available from the 

FHWA Office of Transportation 

Operations’ Web site at: http://

mutcd.fhwa.dot.gov.

* * * * *

[FR Doc. 04–26417 Filed 11–30–04; 8:45 am] 

BILLING CODE 4910–22–P

DEPARTMENT OF THE TREASURY

Internal Revenue Service 

26 CFR Part 31

[TD 9162] 

RIN 1545–BB66

Federal Unemployment Tax Deposits—

De Minimis Threshold

AGENCY: Internal Revenue Service (IRS), 

Treasury.

ACTION: Final regulations.

SUMMARY: This document contains final 

regulations relating to the deposit of 

Federal Unemployment Tax Act (FUTA) 

taxes. The regulations change the 

accumulated amount of tax liability 

above which taxpayers must begin 

depositing Federal unemployment 

taxes. The regulations affect employers 

that have an accumulated FUTA tax 

liability of $500 or less.

DATES: Effective Date: These regulations 

are effective December 1, 2004. 

Applicability Date: For dates of 

applicability, see § 31.6302(c)–3(a)(2) 

and (3).

FOR FURTHER INFORMATION CONTACT:

Heather L. Dostaler, (202) 622–4940 (not 

a toll-free number).

SUPPLEMENTARY INFORMATION: 

Background 

This document contains amendments 

to the Regulations on Employment 

Taxes and Collection of Income Tax at 

Source (26 CFR part 31) under section 

6302 relating to mode or time of 

collection. The current rules relating to 

the deposit of FUTA taxes generally 

require employers to deposit taxes on a 

quarterly basis. An exception provides 

that an employer is not required to make 

a deposit until accumulated FUTA tax 

liability exceeds $100. 

A notice of proposed rulemaking 

(REG–144908–02) providing an 

additional exception to the FUTA tax 

deposit requirements was published in 

the Federal Register (68 FR 42329) on 

July 17, 2003. Under the proposed 

exception, an employer would not be 

required to deposit FUTA taxes if the 

employer’s liability for other 

employment taxes (FICA taxes and 

withheld income taxes) was below the 

threshold at which deposits were 

required for those other taxes. 

Three written comments were 

received in response to the notice of 

proposed rulemaking, but there was no 

request for a public hearing and a public 

hearing was not held. All comments 

were considered and are available for 

public inspection upon request. After 

consideration of the written comments, 

the proposed regulations under section 

6302 are adopted as revised by this 

Treasury decision. The public 

comments and the revisions are 

discussed below. 

Summary of Comments 

Two commentators expressed concern 

that the creation of an additional 

exception linked to the deposit rules for 

other employment taxes will create 

complexity and that a single exception 

based on FUTA tax liability is sufficient. 

One commentator expressed concern 

regarding the low threshold amounts 

under both exceptions, and also 

expressed concern that the proposed 

exception could be misinterpreted by 

those accustomed to referring only to 

the amount of accumulated FUTA taxes.

One commentator suggested that the 

regulations should exempt household 

employers who file Schedule H, 

‘‘Household Employment Taxes,’’ with 

Form 1040. This comment is outside the 

scope of these regulations, which are 

limited to the deposit rules issued under 

section 6302. Household employment 

taxes reported on Schedule H are paid 

with the employer’s income taxes. 

Explanation of Provisions 

After considering the public 

comments, the IRS and Treasury 

Department agree that a single exception 

based on a higher FUTA tax liability 

threshold is preferable to the exception 

in the proposed regulations. 

Accordingly, the final regulations do not 

include an exception linked to the 

deposit rules for other employment 

taxes. Instead, they increase the FUTA 

tax liability threshold from $100 to 

$500. Thus, an employer will not be 

required to make a deposit of FUTA 

taxes until FUTA tax liability exceeds 

$500. This change is a simple and 

straightforward step to reduce the 

burden on small businesses. 

Special Analyses 

It has been determined that this 

Treasury decision is not a significant 

regulatory action as defined in 

Executive Order 12866. Therefore, a 

regulatory assessment is not required. It 

also has been determined that section 

553(b) of the Administrative Procedure 

Act (5 U.S.C. chapter 5) does not apply 

to these regulations, and, because these 

regulations do not impose a collection 

of information on small entities, the 

Regulatory Flexibility Act (5 U.S.C. 

chapter 6) does not apply. Pursuant to 

section 7805(f) of the Internal Revenue 

Code, the notice of proposed rulemaking 

preceding these regulations was 

submitted to the Chief Counsel for 

Advocacy of the Small Business 

Administration for comment on its 

impact on small business. 

Drafting Information 

The principal author of these 

regulations is Heather L. Dostaler of the 

Office of Associate Chief Counsel, 

Procedure and Administration 

(Administrative Provisions and Judicial 

Practice Division).

List of Subjects in 26 CFR Part 31

Employment taxes, Income taxes, 

Penalties, Pensions, Railroad retirement, 

Reporting and recordkeeping 

requirements, Social Security, 

Unemployment compensation.

Adoption of Amendments to the 

Regulations

■ Accordingly, 26 CFR part 31 is 

amended as follows:

PART 31—EMPLOYMENT TAXES AND 

COLLECTION OF INCOME TAX AT 

SOURCE

■ Paragraph 1. The authority citation for 

part 31 continues to read, in part, as 

follows:

Authority: 26 U.S.C. 7805 * * *