[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]
BILLING CODE 4910-22-P
