[Federal Register Volume 69, Number 90 (Monday, May 10, 2004)]
[Rules and Regulations]
[Pages 25828-25831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10491]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 655

[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: Interim final rule; request for comments.

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SUMMARY: This interim final rule amends the rule that prescribes the 
use of 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. These changes are designated as 
Revision No. 1 to the 2003 Edition of the MUTCD.

DATES: Effective date: This interim final rule is effective July 21, 
2004. The incorporation by reference of the publication listed in this 
rule is approved by the Director of the Federal Register as of July 21, 
2004.
    Comment date: Comments relating to the technical details of the 
MUTCD amendment must be received on or before June 30, 2004.

ADDRESSES: Mail or hand deliver comments to the U.S. Department of 
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590, or submit comments electronically at 
http://dms.dot.gov/submit, or fax comments to (202) 493-2251. 
Alternatively, comments may be submitted via the Federal eRulemaking 
Portal at http://www.regulations.gov (follow the on-line instructions 
for submitting comments). 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 acknowledgment page 
that appears after submitting comments electronically. All comments 
received into any docket may be searched in electronic format by the 
name of the individual submitting the comment (or signing the comment, 
if submitted on behalf of an association, business, labor union, etc.). 
Persons making comments may review U.S. DOT's complete Privacy Act 
Statement in the Federal Register published on April 11, 2000 (Volume 
65, Number 70, Pages 19477-78), or you may view the statement at http://dms.dot.gov.

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, D.C. 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 and Filing

    You may submit or retrieve comments online through the Document 
Management System (DMS) 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 (202) 
512-1661. Internet users may also reach the Office of the Federal 
Register's Home page at: http://www.archives.gov/federal_register and 
the Government Printing Office's Web page at: http://www.gpoaccess.gov.

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

[[Page 25829]]

(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 Federal-aid system \1\. The FHWA 
has developed changes to the text and figures of the 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.
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    \1\ Federal-aid systems are defined in 23 U.S.C. 101 and 103.
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Discussion of Amendments Related to Pharmacy Signing--Part 2 Signs

    1. In Section 2D.45 General Service Signs (D9 Series), the FHWA 
revises the second STANDARD statement to remove the list of legends for 
various services. This list was incomplete in that it did not include 
some of the types of services that had been previously added to the 
MUTCD for General Service signing. Rather than adding Pharmacy and 
other services that had been missing from the list, the FHWA amends the 
sentence to be general in nature, applying to all types of General 
Service signs, including Pharmacy signs. The text of the second 
standard statement will now state: ``General Service signs, if used at 
intersections, shall be accompanied by a directional message.''
    Consistent with the requirements of the Act, the FHWA revises the 
third STANDARD statement to add the requirement that the Pharmacy (D9-
20) sign shall only be used to indicate the availability of a pharmacy 
that is open, with a State-licensed pharmacist on duty, 24 hours per 
day, seven days per week and that is located within 3 miles of an 
interchange on the Federal-aid system. The D9-20 sign shall have a 24 
HR (D9-20) plaque mounted below it. The Act refers to ``licensed 
pharmacy services.'' The States license pharmacy service by requiring 
pharmacists to be licensed, according to criteria set by each State, in 
order to practice the profession of pharmacy and dispense prescription 
medicines to the public. Retail pharmacies employ State-licensed 
pharmacists to perform this service in their stores\2\.
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    \2\ Information about licensing of pharmacists may be found on 
the website of the National Association of Boards of Pharmacy, at 
the following URL: http://www.nabp.net.
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    The FHWA also revises Figure 2D-11 General Service Signs to add a 
new D9-20 Pharmacy symbol sign, with a white ``Rx'' symbol and border 
on a blue background, and a D9-20a plaque having white ``24 HR'' text 
and border on a blue background. The ``Rx'' symbol is widely used in 
commercial signing and other media to denote medicinal prescriptions 
available at pharmacies. The textbook ``Remington's Pharmaceutical 
Sciences'' states: ``The Rx symbol generally is understood to be a 
contraction of the Latin verb recipe, meaning `take thou' or `you 
take.' Some historians believe this symbol originated from the sign of 
Jupiter, employed by the ancients in requesting aid in healing. Gradual 
distortion through the years has led to the symbol currently used. 
Today, the symbol is representative of both the prescription and 
pharmacy itself.''\3\ Also, in 1997 the Attorney General of the State 
of Kansas issued Opinion No. 97-8 that ``the taking, use or exhibition 
of the symbol ``Rx'' is limited to licensed pharmacists and entities 
which employ licensed pharmacists.'' \4\ The FHWA believes that the 
simplicity and boldness of the Rx symbol as shown in Figure 2D-11 will 
aid in recognition, conspicuity, and legibility for road users, as 
compared to other possible symbols involving mortar and pestle or other 
similar devices.
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    \3\ Remington: The Science and Practice of Pharmacy, 20th 
edition, 2000, page no. 1688.
    \4\ This Opinion may be viewed at http://kscourts.org/opinions/1997/1997-008.htm.
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    2. In Section 2E.51 General Service Signs, the FHWA revises the 
first guidance statement to renumber existing item F to become item G 
and to insert as new item F the recommended criteria for availability 
of pharmacy services shown on General Service signs. The criteria for 
pharmacy services are that the pharmacy must be open, with a State-
licensed pharmacist on duty, 24 hours per day, seven days per week and 
located within 4.8 km (3 miles) of an interchange on the Federal-aid 
system. These criteria correspond to the requirements of the Act.
    Also, in the third STANDARD statement, the FHWA adds Pharmacy to 
the list of services for which one or more legends shall be carried on 
General Service signs.
    The FHWA amends the fourth option statement to allow the Pharmacy 
(D9-20) symbol as well as the Tourist Information (D9-18) symbol to be 
substituted on symbolic (D9-18) General Service signs in the last 
position. Further, the FHWA changes the parenthetical phrase ``(four 
services)'' in the first sentence of this paragraph to ``(four or six 
services)'' for clarity and to correctly reflect that six services may 
be displayed on symbolic General Service signs, as stated previously in 
Section 2E.51.
    3. The FHWA revises Figure 2E-42 Examples of General Service Signs 
(with Exit Numbering) to include additional examples of the D9-18a and 
D9-18 General Service signs that illustrate the use of the pharmacy 
word legend and pharmacy symbol on these signs.
    4. In Section 2F.01 Eligibility, the FHWA adds to the second 
standard a statement that distances to eligible 24-hour pharmacies 
shall not exceed 4.8 km (3 miles) in either direction of an interchange 
on the Federal-aid system.
    In addition, the FHWA amends the third guidance statement to 
indicate that distances to eligible services other than pharmacies 
should not exceed 4.8 km (3 miles) in either direction.
    The FHWA also amends the second option statement to specifically 
exempt pharmacies from the provision that allows the 4.8 km (3 mi) 
limit to be extended for eligibility for Specific Service signs when 
eligible facilities are not available within the 4.8 km (3 mi) limit or 
choose not to participate.
    Finally, the FHWA adds a standard statement at the end of the 
section listing criteria that must be met for a pharmacy to qualify for 
Specific Service signing if a jurisdiction elects to provide Specific 
Service signing for pharmacies. Both of the following criteria must be 
met: (1) The pharmacy shall be continuously operated 24 hours per day, 
seven days per week, and shall have a State-licensed pharmacist on duty 
at all times, and (2) the pharmacy shall be located within 4.8 km (3 
miles) of an interchange on the Federal-aid system. These criteria 
correspond to those specified in the Act.
    5. In Section 2F.02 Application, the FHWA amends the standard 
statement to include 24-hour pharmacy as the first service type that is 
to be displayed in successive Specific Service signs in the direction 
of traffic. In this same standard, the FHWA adds the word message 24-
hour pharmacy to the list of word messages on Specific Service signs.
    In the option statement, the FHWA also removes the list of various 
specific services that may be signed on any class of highway. This list 
was incomplete in that it did not include some of the types of services 
that had been previously added to the MUTCD for Specific

[[Page 25830]]

Service signing. Rather than adding Pharmacy and other services that 
had been missing from the list, the FHWA amends the sentence to be 
general in nature, applying to all types of Specific Service signs, 
including those for Pharmacy services. The text will now indicate that 
Specific Service signs may be used on any class of highway.
    6. In Section 2H.04 Regulatory and Warning Signs, in Table 2H-1 
Category Chart for Symbols, the FHWA amends the Motorist Services 
series to add the 24-Hour Pharmacy symbol as new number RM-230. With 
the establishment of the new symbol for pharmacy in the D9 series of 
symbols for General Service signing, the FHWA believes it is 
appropriate for consistency and uniformity to provide for this symbol 
to be used in Recreational and Cultural Interest Area signing as well. 
The other D9 series symbols are already included in Chapter 2H for use 
with Recreational and Cultural Interest Area signing.
    7. In Section 2H.08 Placement of Recreational and Cultural Interest 
Area Symbol Signs, the FHWA amends Figure 2H-5 Recreational and 
Cultural Interest Area Symbol Signs (Sheet 2 of 5) to include the 24-
hour Pharmacy (RM-230) symbol sign. This sign consists of a white 
``Rx'' symbol and border on a square brown background with an integral 
supplemental plaque having a white ``24 HR'' legend and border on a 
rectangular brown background.

Rulemaking Analyses and Notices

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), an 
agency may waive the normal notice and comment requirements if it 
finds, for good cause, that they are impracticable, unnecessary, or 
contrary to the public interest. The FHWA has determined that prior 
notice and comment is impracticable and contrary to the public interest 
due to a congressionally imposed deadline. Section 124, Division F, 
Title I Consolidated Appropriations Act, 2004, requires that the 
Secretary of Transportation amend the MUTCD within 6 months of the 
effective date of the Act to include a provision permitting information 
to be provided to motorists to assist motorists in locating licensed 
24-hour pharmacies. Therefore, taking into account Congress's 
expectation that this regulation will be issued in July 2004, the FHWA 
is faced with a situation in which the necessary and timely required 
execution of the required changes to the MUTCD would be prevented by 
undertaking a rulemaking proceeding prior to the adoption of the 
necessary changes to the MUTCD. In order to meet the congressionally 
mandated deadline, the FHWA is adopting the change to the MUTCD with as 
much notice as practicable by issuing this interim final rule and 
inviting public comment before the final regulation is issued. 
Furthermore, it is contrary to the public interest to further delay the 
ability of the States to provide this pertinent information to the 
traveling public. Accordingly, for the reasons listed above the agency 
finds good cause under 5 U.S.C. 553(b)(3)(B) to waive prior notice and 
opportunity for comment.
    Comments received will be considered in evaluating whether any 
changes to the technical details of the revised MUTCD text and figures 
in this interim final rule are required. All comments received before 
the close of business on the comment closing date indicated above will 
be considered and will be available for examination in the docket at 
the above address. Comments received after the comment closing date 
will be filed in the docket and will be considered to the extent 
practicable. In addition to late comments, the FHWA will also continue 
to file relevant information in the docket as it becomes available 
after the comment period closing date, and interested persons should 
continue to examine the docket for new material.

Executive Order 12866 (Regulatory Planning and Review) and 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. It is anticipated that the economic 
impact of this rulemaking will be minimal. 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, 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 interfere 
with any action taken or planned by another agency and will not 
materially alter the budgetary impact of any entitlements, grants, user 
fees, or loan programs.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (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 FHWA certifies that this action will not have a 
significant economic impact on a substantial number of small entities. 
The FHWA will reexamine this certification after reviewing the comments 
to this rule.

Unfunded Mandates Reform Act of 1995

    This interim final rule does 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 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 one year. 
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.
    Additionally, 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 by the 
Federal government. The Federal-aid highway program permits this type 
of flexibility to the States.

Executive Order 13132 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, and the FHWA has 
determined that this action does not have sufficient federalism 
implications to warrant the preparation of a federalism assessment. 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

[[Page 25831]]

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

    This action does not contain a collection of information 
requirement under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3520.

National Environmental Policy Act

    The agency has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has 
determined that this action will not have any effect on the quality of 
the environment.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under Executive Order 13175, 
dated November 6, 2000, and concluded that this interim final rule will 
not have substantial direct effects on one or more Indian tribes; will 
not impose substantial direct compliance costs on Indian tribal 
government; and will not preempt tribal law. The requirements set forth 
in this interim final rule do not directly affect one or more Indian 
tribes. Therefore, a tribal summary impact statement is not required.

Executive Order 12988 (Civil Justice Reform)

    This interim final rule meets applicable standards in section 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)

    Under Executive Order 13045, Protection of Children from 
Environmental Health and Safety Risks, this interim final rule is not 
economically significant and does not involve an environmental risk to 
health and safety that may disproportionally affect children.

Executive Order 12630 (Taking of Private Property)

    This interim final rule will not effect a taking of private 
property or otherwise have taking implications under Executive Order 
12630, Governmental Actions and Interference with Constitutionally 
Protected Property Rights.

Executive Order 13211 (Energy Effects)

    This interim final rule has been analyzed under Executive Order 
13211, Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use. The FHWA has determined that it is not a 
significant energy action under that order because it is not a 
significant regulatory action under Executive Order 12866 and this 
interim final rule is not likely to have a significant adverse effect 
on the supply, distribution, or use of energy.

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: May 3, 2004.
Mary E. Peters,
Federal Highway Administrator.

0
In consideration of the foregoing, the FHWA is amending title 23, Code 
of Federal Regulations, part 655, subpart F as follows:

PART 655--TRAFFIC OPERATIONS

0
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).

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

0
2. Revise Sec.  655.601(a) to read as follows:


Sec.  655.601  Purpose.

* * * * *
    (a) Manual on Uniform Traffic Control Devices for Streets and 
Highways (MUTCD), 2003 Edition, including Revision No. 1, FHWA, dated 
July 21, 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. 04-10491 Filed 5-7-04; 8:45 am]
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