[Federal Register Volume 65, Number 250 (Thursday, December 28, 2000)]
[Proposed Rules]
[Pages 82301-82303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-33195]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 772

[FHWA Docket No. FHWA-2000-8056]
RIN 2125-AE80


Procedures for Abatement of Highway Traffic Noise and 
Construction Noise

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Advance notice of proposed rulemaking (ANPRM); request for 
comments.

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SUMMARY: The FHWA is requesting comments on whether its regulations on 
noise insulation of private residences should be revised to allow 
Federal participation when a traffic noise impact occurs, i.e., when 
predicted traffic noise levels substantially exceed the existing noise 
levels. Currently, Federal participation in the noise insulation of 
private residences is allowable only in situations where: Severe 
traffic noise impacts exist or are expected, and normal abatement 
measures are physically infeasible or economically unreasonable. In 
these instances, the FHWA may approve a State's request for unusual or 
extraordinary abatement measures on a case-by-case basis. When 
considering extraordinary abatement measures, the State must 
demonstrate that the affected activities experience traffic noise 
impacts to a far greater degree than other similar activities adjacent 
to highway facilities. For example, residential areas experience 
absolute noise levels of at least 75 decibels or residential areas 
experience noise level increases of at least 30 decibels over existing 
noise levels. The noise insulation of private residences is an example 
of an extraordinary abatement measure.

DATES:  Comments must be received on or before February 26, 2001.

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 electronically at http://dmses.dot.gov/submit. 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.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Armstrong, Office of 
Natural Environment, HEPN-20, (202) 366-2073, or Mr. Robert Black, 
Office of the Chief Counsel, HCC-30, (202) 366-1359, 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 and Filing

    You may submit or retrieve comments online through the Document 
Management System (DMS) at: http://dmses.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.nara.gov/fedreg and the Government 
Printing Office's web page at: http://www.access.gpo.gov/nara.

Background

    The FHWA noice regulations were developed as a result of the 
Federal-Aid Highway Act of 1970 (Public Law 91-605, 84 Stat. 1713) and 
apply to projects where a State department of transportation has 
requested Federal funding for participation in the project. Under FHWA 
noise requirements found at 23 CFR part 772, the State transportation 
department must determine if there will be traffic noise impacts in 
areas adjacent to federally-aided highways when a project is proposed 
for the construction of a highway on a new location or the 
reconstruction of an existing highway to either significantly change 
the horizontal or vertical alignment or increase the number of through-
traffic lanes. Such a project is termed a ``Type I'' project. If the 
State transportation department identifies potential traffic noise 
impacts, it must consider noise abatement measures and implement the 
measures when they are determined to be reasonable and feasible.
    Federal law and FHWA regulations do not require the State 
departments of transportation to implement noise abatement along 
existing highways. However, they may voluntarily initiate this type of 
abatement, termed a ``Type II'' project, but they are solely 
responsible for making this decision. Federal participation in the 
funding of such projects is limited to those that propose abatement 
measures along lands that were developed or were under substantial 
construction before approval of the acquisition of the right-of-way 
for, or construction of, the existing highway.

[[Page 82302]]

    Noise abatement measure which may be incorporated in ``Type I'' and 
``Type II'' projects include the following: (1) Traffic management 
measures (e.g., traffic control devices and signing for prohibition of 
certain vehicle types, time-use restrictions for certain vehicle types, 
modified speed limits and exclusive land designations); (2) alteration 
of horizontal and vertical alignments; (3) acquisition of property 
rights (either in fee or lesser interest) for construction of noise 
barriers; (4) construction of noise barriers (including landscaping for 
aesthetic purposes), whether within or outside the highway right-of-
way; (5) acquisition of real property or interests therein 
(predominately unimproved property) to serve as a buffer zone to 
preempt development which would be adversely impacted by traffic noise 
(this measure may be included in ``Type I'' projects only); and (6) 
noise insulation of public use or nonprofit institutional structures.
    In establishing the noise regulations, the FHWA limited routine 
noise insulation to public use or nonprofit institutional structures in 
an effort to balance what is desirable from an environmental 
perspective with what is reasonable fiscally, i.e., balance noise 
reduction benefits with overall program costs. However, there may be 
situations where: (1) Severe traffic noise impacts exist or are 
expected, and (2) the abatement measures listed above are physically 
infeasible or economically unreasonable. In these instsances, the FHWA 
may approve a State's request for unusual or extraordinary abatement 
measures on a case-by-case basis. When considering extraorindary 
abatement measures, the State must demonstrate that the affected 
activities experience traffic noise impacts to a far greater degree 
than other similar activities adjacent to highway facilities. For 
example, residential areas experience absolute noise levels of at least 
75 decibels or residential areas experience noise level increases of at 
least 30 decibels over existing noise levels. The noise insulation of 
private residences is an example of an extraordinary abatement measure.
    It has been suggested that the noise insulation of private 
residences be added to the listing of abatement measures which may 
routinely be considered whenever a traffic noise impact occurs. Such 
consideration would not require the occurrence of a severe traffic 
noise impact. However, such consideration could require that all other 
measures be evaluated and be determined not to be reasonable and 
feasible before the noise insulation of private residences could be 
considered. As with all elements of highway traffic noise analysis and 
abatement, consideration for the noise insulation of private residences 
should be applied uniformly and consistently on a statewide basis.
    The FHWA seeks comments on the following questions:
    1. Should the FHWA revise its noise regulation to allow Federal 
participation in the noise insulation of private residences whenever a 
traffic noise impact occurs, not only when a severe traffic noise 
impact occurs?
    2. Should the FHWA revise its noise regulation to routinely allow 
Federal participation in the noise insulation of private residences, 
i.e., add it to the listing of abatement measures which may be included 
in ``Type I'' and ``Type II'' projects, or should Federal participation 
in the noise insulation of private residences be allowed only after all 
the other listed abatement measures have been determined not to be 
reasonable and feasible?
    3. Should the FHWA revise its noise regulation to address the noise 
insulation of private residences in a manner which is different from 
that discussed in the first two questions? if so, how?

Rulemaking Analyses and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination using the docket number appearing at the top of this 
document in the docket room at the above address or via the electronic 
addresses provided above. The FHWA will file comments received after 
the comment closing date in the docket and will consider late comments 
to the extent practicable. In addition to late comments, the FHWA will 
also continue to file in the docket relevant information becoming 
available after the comment closing date, and interested persons should 
continue to examine the docket for new material. An NPRM may be issued 
at any time after close of the comment period.

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, nor 
would it be a significant regulatory action within the Department of 
Transportation's regulatory policies and procedures. Due to the 
preliminary nature of this document and lack of necessary information 
on costs and benefits, the FHWA is unable to evaluate the impact of 
potential changes to the regulatory requirements concerning the noise 
insulation of private residences. Comments, information, and data are 
solicited on the economic and other related costs and/or possible 
benefits of the potential changes. Based on the information received in 
response to this notice, the FHWA intends to carefully consider the 
costs and benefits associated with various alternative requirements.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has determined that the potential regulatory changes 
will have no economic impacts on small entities. This action would 
merely seek information concerning the noise insulation of private 
residences. Based on this evaluation, the FHWA certifies that this 
action would not have a significant economic impact on a substantial 
number of small entities.

National Environmental Policy Act

    The FHWA will analyze any actions that might be proposed in 
response to comments received here for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) to assess 
whether there would be any effect on the quality of the environment.

Unfunded Mandates Reform Act of 1995

    Due to the preliminary nature of this document and lack of 
necessary information on costs, the FHWA is unable to evaluate the 
effects of the potential regulatory changes in regards to imposing a 
Federal mandate involving 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 (2 U.S.C. 1532). Nevertheless, the FHWA 
will evaluate any regulatory action that might be proposed in 
subsequent stages of this rulemaking to assess the effects on State, 
local, and tribal governments and the private sector.

Executive Order 12988 (Civil Justice Reform)

    The FHWA will evaluate any action that may be proposed in response 
to comments received here to ensure that such 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.

[[Page 82303]]

Executive Order 13045 (Protection of Children)

    The FHWA will evaluate any rule that may be proposed in response to 
comments received here under Executive Order 13045, Protection of 
Children from Environmental Health Risks and Safety Risks. We do not, 
however, anticipate that any such rule would be economically 
significant or would present an environmental risk to health or safety 
that may disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    The FHWA will evaluate any rule that may be proposed in response to 
comments received here to ensure that any such 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 13132 (Federalism)

    Any action that may be initiated in response to comments received 
here will be analyzed in accordance with the principles and criteria 
contained in Executive Order 13132, dated August 4, 1999. The FHWA 
anticipates that such action would not have a substantial direct effect 
or sufficient Federalism implications on States that would limit the 
policymaking discretion of the States. Nor do we anticipate that such 
action would directly preempt any State law or regulation.

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 proposal contains no collection of information requirements 
for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3520.

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 772

    Grant programs-transportation, Highways and roads, Noise control.


    Authority: 23 U.S.C. 109(h) and (i); 42 U.S.C. 4331, 4332; and 
49 CFR 1.48(b)).

    Issued on: December 21, 2000.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 00-33195 Filed 12-27-00; 8:45 am]
BILLING CODE 4910-22-M