[Federal Register Volume 62, Number 154 (Monday, August 11, 1997)]
[Rules and Regulations]
[Pages 42903-42904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21122]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 772

[FHWA Docket No. 96-26: FHWA-97-2348]
RIN 2125-AD97


Procedures for Abatement of Highway Traffic Noise and 
Construction Noise

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: The FHWA is adopting, as final, a current interim final rule 
that revises the FHWA regulation that allows Federal participation for 
Type II noise abatement projects--that is, proposed Federal or Federal-
aid highway projects for noise abatement on an existing highway. This 
final rule restricts Federal participation for Type II projects to 
those that were approved before the date of enactment of the National 
Highway System Designation Act of 1995 (NHS) (Pub. L. 104-59, 109 Stat. 
605) or 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.

EFFECTIVE DATE: September 30, 1996.

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: On August 29, 1996, the FHWA published an 
interim final rule along with a request for comments in the Federal 
Register (61 FR 45319) as a means of implementing changes in 23 CFR 
part 772 for Type II project eligibility. The interim rule prohibits 
Federal participation in Type II projects unless development predated 
the existence of any highway.

Discussion of Comments

    The public comment period for the interim final rule closed on 
November 27, 1996. The FHWA received two comments from the Illinois 
Department of Transportation. The response concerning this interim 
final rule is available for review at the U.S. DOT Dockets, Room PL-
401, 400 Seventh Street, SW., Washington, DC 20590.
    The first comment noted that the FHWA went beyond the changes 
called for by the NHS Act by indicating that ``[n]oise 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.'' The comment stated that there is no basis in the NHS 
legislation for this change and questioned the appropriateness of 
ruling out the possibility of FHWA participation in a Type II project 
on this basis.
    It was the intent of the NHS legislation to prohibit Federal 
participation in the construction of Type II noise barriers in 
instances where proper consideration has not been given to highway 
traffic noise concerns and issues during the local growth and 
development process, i.e., growth and development has occurred after a 
highway was constructed and has created unmitigated traffic noise 
impacts. This intent was meant to limit Federal expenditures for Type 
II noise barriers.
    The questioned statement is meant to place increased emphasis on 
the importance of noise-compatible land use planning at the State and 
local level. Highway traffic noise should be reduced through a program 
of shared responsibility. Thus, the FHWA encourages State and local 
governments to practice compatible land use planning and control in the 
vicinity of highways. Local governments should use their power to 
regulate land development in such a way that either noise-sensitive 
land uses are prohibited from being located adjacent to a highway, or 
developments are planned, designed, and constructed to minimize noise 
impacts. The challenged statement has been left unchanged.
    The second comment noted that, while the NHS legislation 
specifically refers to limiting Federal participation in the 
construction of Type II noise barriers, revised Sec. 772.13 limits 
Federal participation in ``noise abatement measures,'' a broader term 
that exceeds the clear language of the NHS legislation. As was the case 
above, the wording ``noise abatement measures'' in revised Sec. 772.13 
was used to meet the intent of the NHS legislation to generally 
prohibit Federal Type II expenditures in instances where proper 
consideration has not been given to highway traffic noise concerns and 
issues during the local growth and development process. Therefore, no 
change has been made in the final rule.

Rulemaking Analyses and Notices

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 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.

[[Page 42904]]

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 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.

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

    In consideration of the foregoing and under the authority of 23 
U.S.C. 109(h), 42 U.S.C. 4331, sec. 339(b) of Pub. L. 104-59, 109 Stat. 
568, 605, and 49 CFR 1.48(b), the interim final rule amending 23 CFR 
Part 772 which was published at 61 FR 45319 on August 29, 1996, is 
adopted as a final rule without change.

    Issued on: August 1, 1997.
Jane F. Garvey,
Acting Administrator.
[FR Doc. 97-21122 Filed 8-8-97; 8:45 am]
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