00-33195. 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.

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, [phone], or Mr. Robert Black, Office of the Chief Counsel, HCC-30, [phone], 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 [phone]. 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.

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.

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.