[Federal Register Volume 67, Number 58 (Tuesday, March 26, 2002)]
[Proposed Rules]
[Pages 13731-13732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7165]


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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: Termination of proposed rulemaking.

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SUMMARY: This document terminates a rulemaking proceeding to revise 
noise regulations relating to the noise insulation of private 
residences. The agency undertook this action to consider allowing 
Federal participation in the noise insulation of private residences 
when a traffic noise impact occurs, i.e., when predicted traffic noise 
levels approach or exceed the FHWA noise abatement criteria or when the 
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. The agency has 
determined that the proposed change would establish a highly 
controversial funding policy and would add tremendous cost to the 
highway program. Accordingly, we are terminating the rulemaking 
proceeding and closing the docket.

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:

Background

    The FHWA noise regulations were developed as a result of the 
Federal-Aid Highway Act of 1970 (Pub. L. 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 the 
FHWA noise requirements found at 23 CFR part 772, the State DOT 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 DOT 
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 the FHWA regulations do not require the State DOTs 
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.
    Noise abatement measures 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 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.

The Advance Notice of Proposed Rulemaking (ANPRM)

    On December 28, 2000, the FHWA issued an ANPRM, at 65 FR 82301, to 
seek comment on allowing the use of

[[Page 13732]]

Federal funds for noise insulation of private residences as an interior 
noise abatement measure. Member(s) of Congress had 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 sought 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?

Comments Received in Response to the ANPRM

    The agency received comments on the proposed revision from one 
member of Congress, two Federal agencies, one metropolitan planning 
organization, one insulation contractor, and 15 State departments of 
transportation (DOT).
    The member of Congress supported making a regulatory change to 
allow private home insulation where ``conventional exterior noise 
barriers are found to be impractical or excessively expensive.'' This 
would increase a State DOT's flexibility to participate in alternative 
noise abatement projects and would provide noise abatement in many 
instances where it would not be provided under existing FHWA 
regulations.
    The Department of Housing and Urban Development recommended a 
``total, multi-modal noise package'' be considered for noise effects 
and mitigation.
    The U.S. Environmental Protection Agency encouraged the provision 
of more flexibility in the use of noise insulation for private 
residences, i.e., noise insulation should be available for 
consideration in all situations.
    The metropolitan planning organization supported a regulatory 
revision to allow greater flexibility in using Federal funds for the 
noise insulation of private homes.
    The insulation contractor strongly supported a revision to 
routinely provide noise insulation.
    One State department of transportation commented that the FHWA's 
noise regulations should be re-crafted to allow Federal participation 
in any reasonable and feasible noise abatement methodology, provided 
specific performance criteria have been satisfied.
    The other 14 State DOTs voiced opposition to the proposed 
regulatory change, indicating the proposed regulatory change will 
result in the following: (1) A substantial increase in the cost and 
complexity of the noise abatement program (one State DOT estimated its 
average annual noise mitigation cost would increase from $1.9 million 
to $30.6 million, approximately doubling the annual expenditure for all 
planning, analysis, design, and construction related to all 
environmental disciplines); (2) a dramatic increase in the amount of 
time and effort invested to complete noise studies/final abatement 
designs, with the potential for causing significant and costly project 
delays; (3) inequities in the noise abatement program, since the costs 
associated with insulating private residences would vary greatly (this 
could increase the potential for discrimination complaints); (4) 
unnecessary additional burdens for States (since building insulation 
cannot be accurately modeled, its cost would have to be estimated on a 
house-by-house basis and its application would be far too difficult to 
manage in a reasonable and cost effective manner); (5) no provision of 
benefits for the exterior areas of residences; (6) legal concerns 
related to maintenance of the home insulation and the consideration of 
future homeowner remodeling/changes; (7) a tremendous administrative 
burden, since extensive, comprehensive contractual agreements would be 
required among all involved parties, e.g., State DOTs, consultants, 
contractors, local government officials, and homeowners, to minimize 
the possibility of litigation; and (8) unnecessary complications of a 
noise abatement program that has been easily understood and accepted by 
the public for an extended period of time. The same 14 State DOTs 
indicated that the current regulatory guidance is adequate and 
appropriate and that the noise insulation of private residences should 
remain a ``technique of last resort.''

Analysis

    The agency proposal considered allowing Federal participation in 
the routine noise insulation of private residences whenever a traffic 
noise impact occurs. After review of the comments submitted in response 
to that proposal, it has become apparent that, while increasing the 
flexibility in providing noise abatement, routinely allowing Federal 
participation in the noise insulation of private residences would place 
an unacceptable additional burden on State DOTs and add an unacceptably 
high cost to the Federal-aid highway program that was not previously 
anticipated. The additional burden to States would include a tremendous 
increase in the resources needed to address the administrative, legal, 
and technical elements of providing noise abatement in private 
residences. The fifteen-fold increase in annual noise abatement costs 
estimated by one State DOT is an example of the unacceptable increase 
in Federal-aid highway program costs.

Conclusion

    For the reasons stated above, the FHWA is terminating this 
rulemaking action and closing the docket.

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

    Issued on: March 18, 2002.
Mary E. Peters,
Federal Highway Administrator.
[FR Doc. 02-7165 Filed 3-25-02; 8:45 am]
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