[Federal Register Volume 61, Number 169 (Thursday, August 29, 1996)]
[Rules and Regulations]
[Pages 45319-45321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22059]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 772

[FHWA Docket No. 96-26]
RIN 2125-AD97


Procedures for Abatement of Highway Traffic Noise and 
Construction Noise

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Interim final rule; request for comments.

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SUMMARY: This document revises the FHWA regulation that allows Federal 
participation for Type II noise abatement projects. Type II projects 
are proposed Federal or Federal-aid highway projects for noise 
abatement on an existing highway. This revision will make the 
regulation consistent with the National Highway System Designation Act 
of 1995 (NHS). This action will restrict Federal participation for Type 
II projects to those that were approved before the date of enactment of 
the NHS legislation or are proposed along lands that were developed or 
were under substantial construction before approval

[[Page 45320]]

of the acquisition of the rights-of-way for, or construction of, an 
existing highway.

DATES: This interim final rule is effective September 30, 1996. Written 
comments must be received on or before November 27, 1996.

ADDRESSES: Submit signed, written comments to FHWA Docket No. 96-26, 
Federal Highway Administration, Office of the Chief Counsel, Room 4232, 
HCC-10, 400 Seventh Street, SW., Washington, DC 20590. All comments 
received will be available for examination at the above address from 
8:30 a.m. to 3:30 p.m., e.t., Monday through Friday, except Federal 
holidays. Those desiring notification of receipt of comments must 
include a self-addressed, stamped postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Armstrong, Office of 
Environment and Planning, (202) 366-2073 or Mr. Robert Black, Office of 
the Chief Counsel, (202) 366-1359, Federal Highway Administration, 400 
Seventh Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Background

    Type II projects are not mandatory requirements of 23 CFR Part 772, 
but are proposed solely at the option of a State highway agency. By the 
end of 1992, 17 States had constructed at least one Type II project.
    The FHWA believes that highway traffic noise should be reduced 
through a program of shared responsibility and, thus, has encouraged 
State and local governments to practice noise compatible land use 
planning and control in the vicinity of highways. However, lands 
immediately adjacent to highways frequently have been developed without 
proper regard for traffic noise impacts. Later, State highway agencies 
have constructed Type II noise barriers to abate these impacts. Since 
1976, the FHWA noise regulations have required local officials to take 
measures to exercise land use control over undeveloped lands adjacent 
to highways to prevent development of incompatible activities before 
FHWA funds could normally be used to abate noise impacts upon land uses 
which came into existence after May 14, 1976.
    In the recently passed NHS legislation (Pub. L. 104-59, 109 Stat. 
605), Congress limited Federal participation in Type II projects to 
those which were already approved or future projects where development 
occurred prior to the construction of an existing highway. Thus, the 
FHWA is amending Part 772 to be consistent with the NHS legislation.
    Federal participation in noise abatement measures will only be 
approved for projects that were approved before November 28, 1995, the 
date of enactment of the NHS, or for projects that are proposed along 
lands that were developed or were under substantial construction before 
approval of the acquisition of the rights-of-way for, or construction 
of, an existing highway. Land development or substantial construction 
must have predated the existence of any highway. The granting of a 
building permit, filing of a plat plan, or a similar action must have 
occurred prior to right-of-way acquisition or construction approval for 
the original highway.
    In addition, the amendment provides that Federal participation in 
Type II abatement will be prohibited for lands or activities where Type 
I abatement has been previously determined not to be reasonable and 
feasible. This makes explicit that which is implicit in the noise 
regulations. If a noise abatement project does not qualify as 
reasonable and feasible when proposed as a Type I project, it won't 
later qualify as reasonable and feasible when proposed as a Type II 
project.

Rulemaking Analyses and Notices

    The FHWA has determined that prior notice and opportunity for 
comment are unnecessary under 5 U.S.C. 553(b)(3)(B) because this 
interim final rule incorporates into the regulations the language of 
the NHS statute. In addition, the FHWA has determined that prior notice 
and opportunity for comment are not required under the Department of 
Transportation's regulatory policies and procedures, as it is not 
anticipated that such action would result in the receipt of information 
that would substantially change the regulation, since the revised rule 
incorporates a legislative change.

Executive Order 12866 (Regulatory Planning and Review) and Department 
of Transportation 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 Department of Transportation Regulatory Policies 
and Procedures. The amendment clarifies some of the requirements for 
Federal participation in noise abatement projects for the 17 States 
that have constructed at least one Type II noise barrier. It is 
anticipated that the economic impact of the rulemaking will be minimal; 
therefore, a full regulatory evaluation is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small 
entities. Based on the evaluation, the FHWA hereby certifies that this 
action will not have a significant economic impact on a substantial 
number of small entities. The amendment deals only with the eligibility 
of certain State highway noise abatement projects for Federal 
participation. As such, it affects only State highway agencies and not 
small entities.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that this action does not have sufficient federalism implications to 
warrant the preparation of a federalism assessment. It does not impose 
any new obligation or requirement on a State. It does not affect the 
amount of Federal transportation funds that go to a State. A State is 
not required to have a Type II Noise Program. A State may still expend 
its own funds on a noise abatement project.

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 for purposes of the Paperwork Reduction Act of 1995, 44 
U.S.C. 3501 et seq.

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 et seq.) and 
has determined that this action would not have any effect on the 
environment.

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

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the Unified Agenda in April and October of each year. The RIN number 
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 772

    Highways and roads, Noise control.

    Issued on: August 21, 1996.
Rodney E. Slater,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA amends chapter I of 
title 23, Code of Federal Regulations, Part 772 as set forth below.

PART 772--PROCEDURES FOR ABATEMENT OF HIGHWAY TRAFFIC NOISE AND 
CONSTRUCTION NOISE

    1. The authority citation for Part 772 is revised to read as 
follows:

    Authority: 23 U.S.C. 109(h), 109(i); 42 U.S.C. 4331, 4332; sec. 
339(b), Pub. L. 104-59, 109 Stat. 568, 605; 49 CFR 1.48(b).

    2. In Sec. 772.13, paragraph (b) is revised to read as follows:


Sec. 772.13  Federal participation.

* * * * *
    (b) For Type II projects, noise abatement measures will only be 
approved for projects that were approved before November 28, 1995, or 
are proposed along lands where land development or substantial 
construction predated the existence of any highway. The granting of a 
building permit, filing of a plat plan, or a similar action must have 
occurred prior to right-of-way acquisition or construction approval for 
the original highway. Noise abatement measures will not be approved at 
locations where such measures were previously determined not to be 
reasonable and feasible for a Type I project.
* * * * *
[FR Doc. 96-22059 Filed 8-28-96; 8:45 am]
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