47762 Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Proposed Rules 

2. Is not a ‘‘significant rule’’ under the 

DOT Regulatory Policies and Procedures 

(44 FR 11034, February 26, 1979); and 

3. Will not have a significant 

economic impact, positive or negative, 

on a substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

We prepared a regulatory evaluation 

of the estimated costs to comply with 

this proposed AD and placed it in the 

AD docket. 

List of Subjects in 14 CFR Part 39 

Air transportation, Aircraft, Aviation 

safety, Incorporation by reference, 

Safety. 

The Proposed Amendment 

Accordingly, under the authority 

delegated to me by the Administrator, 

the FAA proposes to amend 14 CFR part 

39 as follows: 

PART 39—AIRWORTHINESS 

DIRECTIVES 

1. The authority citation for part 39 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40113, 44701. 

§ 39.13 [Amended] 

2. The FAA amends § 39.13 by adding 

the following new AD: 

Thielert Aircraft Engines GmbH: Docket No. 

FAA–2009–0753; Directorate Identifier 

2009–NE–31–AD. 

Comments Due Date 

(a) We must receive comments by October 

19, 2009. 

Affected Airworthiness Directives (ADs) 

(b) None. 

Applicability 

(c) This AD applies to Thielert Aircraft 

Engines GmbH (TAE) model TAE 125–01 

reciprocating engines, excluding engines that 

have been modified to TAE Design 

Modification No. 2007–001. These engines 

are installed in, but not limited to, Diamond 

Aircraft Industries Model DA42, Piper PA– 

28–61 (Supplemental Type Certificate (STC) 

No. SA03303AT), Cessna 172F, 172G, 172H, 

172I, 172K, 172L, 172M, 172N, 172P, 172R, 

172S, F172F, F172G, F172H, F172K, F172L, 

F172M, F172N, and F172P (STC No. 

SA01303WI) airplanes. 

Reason 

(d) This AD results from mandatory 

continuing airworthiness information (MCAI) 

issued by an aviation authority of another 

country to identify and correct an unsafe 

condition on an aviation product. The MCAI 

describes the unsafe condition as: 

In-flight engine shutdown incidents were 

reported on aircraft equipped with TAE–125– 

01 engines. This was found to be mainly the 

result of operation over a long time period 

with broken piston cooling oil nozzles which 

caused thermal overload of the piston. 

We are issuing this AD to prevent engine 

in-flight shutdown, possibly resulting in 

reduced control of the aircraft. 

Actions and Compliance 

(e) Unless already done, do the following 

actions: 

(1) Within the next 110 flight hours, or 

during the next scheduled maintenance, 

whichever occurs first after the effective date 

of this AD, inspect the engine and engine oil 

for any evidence or pieces of broken piston 

cooling nozzles. 

(2) Use the inspection instructions in 

Thielert Service Bulletin No. TM TAE 125– 

0017, Revision 2, dated February 22, 2008, to 

perform the inspection. 

(3) Thereafter, repetitively inspect the 

engine and engine oil for any evidence or 

pieces of broken piston cooling nozzles, 

within every additional 100 flight hours. 

(4) If any evidence of a failed cooling 

nozzle is found, remove the engine from 

service before further flight. 

Alternative Methods of Compliance 

(AMOCs) 

(f) The Manager, Engine Certification 

Office, FAA, has the authority to approve 

AMOCs for this AD, if requested using the 

procedures found in 14 CFR 39.19. 

Related Information 

(g) Refer to European Aviation Safety 

Agency AD 2008–0016 R1, dated February 

22, 2008, and Thielert Aircraft Engines 

GmbH, Platanenstrasse 14 D–09350, 

Lichtenstein, Germany, telephone: +49– 

37204–696–0; fax: +49–37204–696–55; email: info@centurion-engines.com, for related 

information. 

(h) Contact Jason Yang, Aerospace 

Engineer, Engine Certification Office, FAA, 

Engine and Propeller Directorate, 12 New 

England Executive Park, Burlington, MA 

01803; e-mail: jason.yang@faa.gov; telephone 

(781) 238–7747; fax (781) 238–7199, for more 

information about this AD. 

Issued in Burlington, Massachusetts, on 

September 10, 2009. 

Peter A. White, 

Assistant Manager, Engine and Propeller 

Directorate, Aircraft Certification Service. 

[FR Doc. E9–22314 Filed 9–16–09; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Highway Administration 

23 CFR Part 772 

[FHWA Docket No. FHWA–2008–0114] 

RIN 2125–AF26 

Procedures for Abatement of Highway 

Traffic Noise and Construction Noise 

AGENCY: Federal Highway 

Administration (FHWA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM); request for comments. 

SUMMARY: This document proposes to 

revise the Federal regulations on the 

Procedures for Abatement of Highway 

Traffic Noise and Construction Noise. 

The FHWA seeks to clarify certain 

definitions, the applicability of this 

regulation, certain analysis 

requirements, and the use of Federal 

funds for noise abatement measures. In 

addition, the proposed regulation would 

include a screening tool and the latest 

state of the practice on addressing 

highway traffic noise. 

DATES: Comments must be received by 

November 16, 2009. 

ADDRESSES: Mail or hand deliver 

comments to the U.S. Department of 

Transportation, Dockets Management 

Facility, Room PL–401, 1200 New Jersey 

Avenue, SE., Washington, DC 20590 or 

fax comments to (202) 493–2251. 

Alternatively, comments may be 

submitted via the Federal eRulemaking 

Portal at http://www.regulations.gov. All 

comments must include the docket 

number that appears in the heading of 

this document. 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 selfaddressed, stamped postcard or you 

may print the acknowledgment page 

that appears after submitting comments 

electronically. Anyone is able to search 

the electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (Volume 

65, Number 70, Pages 19477–78). 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Ferroni, Office of Natural and 

Human Environment, (202) 366–3233, 

or Mr. Robert Black, Office of the Chief 

Counsel, (202) 366–1359, Federal 

Highway Administration, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

An electronic copy of this document 

may 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.archives.gov and the 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Proposed Rules 47763 

Government Printing Office’s Web page 

at: http://www.access.gpo.gov/nara. 

Background 

The FHWA developed the noise 

regulation as required by section 136 of 

the Federal-Aid Highway Act of 1970 

(codified at 23 U.S.C. 109(i)). The 

regulation applies to highway 

construction projects where a State 

department of transportation has 

requested Federal funding for 

participation in the project. The FHWA 

noise regulation, found at 23 CFR 772, 

requires a highway agency to investigate 

traffic noise impacts in areas adjacent to 

federally-funded highways for the 

proposed construction of a highway on 

a new location or the reconstruction of 

an existing highway that either 

significantly changes the horizontal or 

vertical alignment or increases the 

number of through-traffic lanes. If the 

highway agency identifies impacts, it 

must consider abatement. The highway 

agency must incorporate all feasible and 

reasonable noise abatement into the 

project design. 

The FHWA published the ‘‘Highway 

Traffic Noise Analysis and Abatement 

Policy and Guidance’’ (‘‘Policy and 

Guidance’’), dated June 1995, (available 

at http://www.fhwa.dot.gov/ 

environment/noise/polguide/ 

polguid.pdf) which provides guidance 

and policy on highway traffic and 

construction noise abatement 

procedures for Federal-aid projects. 

While updating the 1995 Policy and 

Guidance, the FHWA determined that 

certain changes to the noise regulations 

were necessary. As a result, the FHWA 

developed this NPRM to propose those 

changes. 

This NPRM proposes to amend all of 

the sections in Part 772, except for 

sections 772.1 and 772.3. A highway 

agency would be required to submit its 

revised noise policy, meeting the 

requirements of the final rule, to FHWA 

for approval within 6 months of the 

publication date of the final rule. The 

FHWA would review the highway 

agency’s revised noise policy for 

conformance to the final rule and 

uniform and consistent application 

nationwide. The highway agency would 

provide FHWA for approval a review 

schedule that does not to exceed 3 

months from the highway agency’s 

submission of the revised noise policy. 

FHWA would require at least 14 

business days to conduct an initial and 

a subsequent review of a revised noise 

policy. Failure to submit a revised noise 

policy in accordance with the final rule 

could result in a delay in FHWA’s 

approval of Federal-aid highway 

projects. The highway agency would be 

required to implement the new standard 

on the date that the FHWA approved the 

highway agency’s revised policy. For 

Federal-aid highway projects for which 

the noise analysis has already begun, 

the FHWA Division Office would 

determine which of those projects, if 

any, should be completed under their 

previous approved noise policy. 

Commenters are encouraged to 

comment on the feasibility of this 

timeline. This NPRM also recommends 

changes to Table 1—Noise Abatement 

Criteria and the removal of Appendix 

A—National Reference Energy Mean 

Emission Levels as a Function of Speed. 

In addition to these proposed changes, 

the FHWA is proposing various minor 

changes to sections throughout the 

NPRM to institute a more logical order 

in the regulation. These proposed minor 

changes would not change the meaning 

of the regulation and would not be 

substantive in nature. 

Although the FHWA is soliciting 

comments on all the proposed changes 

within the NPRM, there are three 

additions to the regulation for which the 

FHWA specifically seeks comment. The 

first, contained in section 

772.9(c)(5)(ii)(b), allows highway 

agencies to determine the allowable cost 

of noise abatement. The second, 

contained in section 772.9(d), provides 

a change from past FHWA guidance 

regarding when it is appropriate for 

third parties to contribute additional 

funds to a noise abatement measure or 

aesthetic treatments. This NPRM would 

allow third party contributions only 

after the highway agency has 

determined that the noise abatement 

measure is feasible and reasonable. The 

third, contained in section 772.13(e), 

would require each highway agency to 

maintain an inventory of all constructed 

noise abatement measures, which 

FHWA currently requests from highway 

agencies during the triennial noise 

barrier inventory. Additional 

information on the proposed changes 

follows. 

Proposed Changes 

The FHWA proposes updates to 

section 772.5 Definitions, section 772.7 

Applicability, section 772.9 Analysis of 

traffic noise impacts and abatement 

measures, section 772.11 Noise 

abatement, section 772.13 Federal 

participation, section 772.15 

Information for local officials, and 

section 772.17 Traffic noise prediction, 

Table 1—Noise Abatement Criteria; 

ministerial changes to section 772.19 

Construction Noise; and, the removal of 

Appendix A—National Reference 

Energy Mean Emission Levels as a 

Function of Speed. 

Section 772.5, as proposed, would 

add, modify, or combine definitions, as 

well as reorganize the order in which 

they appear in the regulation. Section 

772.5(a), as proposed, would expand the 

definition of a Type I project as 

provided in the FHWA memorandum 

dated October 20, 1998 (available at 

http://www.fhwa.dot.gov/environment/ 

noise/type1mem.htm) and in 

accordance with common industry 

practices. Section 772.5(a)(1), as 

proposed, would expand the definition 

of a highway on new location to include 

the addition of new interchanges or 

ramps to complete an existing partial 

interchange. Section 772.5(a)(2), as 

proposed, would require a highway 

agency to define the significant change 

in the horizontal or vertical alignment. 

Although these definitions, as proposed, 

would allow the highway agency to 

determine a significant change in the 

horizontal or vertical alignment, it 

would be required to consider, as a 

factor, a 3 dB(A) increase in the noise 

environment at the receptor when 

comparing the existing condition to the 

future build condition. 

Section 772.5(a)(3), as proposed, 

would include the discussion of 

through-traffic lanes as provided in the 

FHWA memorandum dated October 20, 

1998 (available at http:// 

www.fhwa.dot.gov/environment/noise/ 

type1mem.htm). This memorandum 

references High-Occupancy-Vehicle 

(HOV) lanes and truck-climbing lanes; 

however, we propose including HighOccupancy-Toll lanes as a Type I 

project. 

Section 772.5(a)(4), as proposed, 

would include a discussion of auxiliary 

lanes. The October 20, 1998, 

memorandum (available at http:// 

www.fhwa.dot.gov/environment/noise/ 

type1mem.htm) also discusses when an 

auxiliary lane shall be determined a 

Type I project. This memorandum refers 

to an auxiliary lane increasing capacity, 

being a minimum of 1.5 miles long, 

added between interchanges to improve 

operational efficiency and functioning 

as a through-traffic lane. These four 

references corresponded to sections 

772.5(a)(4)(i)–(iv), respectively. We 

would also, as proposed in section 

772.5(a)(4)(v), classify an auxiliary lane 

as a Type I project if the auxiliary lane 

significantly alters the horizontal or 

vertical alignment. Section 772.5(b), as 

proposed, would clarify the definition 

of a Type II project. The first sentence 

will remain the same as currently 

written in the regulation. A second 

sentence would be added to clarify that 

in order for a highway agency to receive 

Federal-aid highway funds for a Type II 

project, the highway agency must 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
47764 Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Proposed Rules 

develop and implement a Type II 

program in accordance with section 

772.7(c)(2). The development and 

implementation of a Type II program 

has been supported by the FHWA since 

June 1995 with the release of the Policy 

and Guidance document, which is 

available at http://www.fhwa.dot.gov/ 

environment/noise/polguide/ 

polguid.pdf). 

Section 772.5(c), as proposed, would 

define a Type III project. This new 

project type is necessary to categorize 

projects that do not satisfy the definition 

of a Type I or a Type II project. For 

example, roadway reconstruction or inkind bridge replacements do not meet 

the definitions of a Type I project or a 

Type II project. The lack of 

categorization for these projects would 

be problematic as highway agencies 

prepare environmental clearance 

documentation because there is no 

succinct way to discuss the noise 

analysis requirements of the project. 

This new Type III project category 

would enable highway agencies to 

categorize all projects. 

Section 772.5(d), as proposed, would 

define the term ‘‘residence.’’ The term 

residence would appear throughout the 

regulation including Activity Category B 

within Table I of the Noise Abatement 

Criteria. According to the June 19, 1995, 

distribution memorandum (available at 

http://www.fhwa.dot.gov/environment/ 

noise/polpap_m.htm) for the 1995 

Policy and Guidance document, ‘‘the 

method used to count residences should 

include all dwelling units, e.g., owneroccupied, rental units, mobile homes 

* * *.’’ The proposed definition would 

ensure proper application of the term 

when determining noise impacts. 

References to a benefited receiver would 

be found in proposed sections 772.5, 

772.9 and Table 1 of this NPRM. 

Section 772.5(e), as proposed, would 

add a definition for the term ‘‘special 

land use facilities.’’ This would include 

picnic areas, recreation areas, 

playgrounds, active sport areas, parks, 

motels, hotels, schools, places of 

worship, libraries, hospitals, cemeteries, 

campgrounds, trails, and trail crossings. 

Special land use facilities often require 

a different process to identify the 

number of impacted and benefited 

receivers it contains than that of a 

residence. In proposed section 772.9, we 

would define impact/impacted and 

benefited/benefiting receivers. 

Section 772.5(f), as proposed, would 

define the term ‘‘multifamily dwelling,’’ 

and would require the State agency to 

count each residence in a multifamily 

structure as one receiver. The proposed 

definition would allow highway 

agencies to assess the total number of 

impacted and benefited receivers. 

Proposed section 772.9 of this NPRM 

would refer to multifamily dwellings. 

In section 772.5(g), as proposed, 

would define the term ‘‘planned, 

designed, and programmed’’ as a 

definite commitment to develop land 

with an approved specific design of 

land use activities. The term is currently 

referenced in the regulation under 

existing section 772.9, but is not 

defined. 

Section 772.5(h), as proposed, would 

define the term ‘‘date of public 

knowledge.’’ According to the 1995 

Policy and Guidance document, 

highway agencies ‘‘must identify when 

the public is officially notified of the 

adoption of the location of a proposed 

highway project.’’ The date of public 

knowledge establishes when the 

Federal/State governments are no longer 

responsible for providing noise 

abatement for new development, which 

occurs adjacent to the proposed 

highway project. The 1995 Policy and 

Guidance document indicates that the 

date of public knowledge cannot 

precede the date of approval of a 

Categorical Exclusion (CE), Finding of 

No Significant Impact (FONSI), or 

Record of Decision (ROD). The addition 

of this definition allows for the 

connection of planned, designed, and 

programmed with the date of public 

knowledge within the regulation. 

Section 772.5(j), as proposed, would 

modify the definition of ‘‘traffic noise 

impacts’’ to include minor editorial and 

clarification changes. 

Section 772.5(k), as proposed, would 

modify the definition of ‘‘design year.’’ 

Highway agencies define the design year 

as a part of their project development. 

Under the proposed definition, the 

design year established for the Federalaid highway project would be the year 

used for the noise analysis. 

Section 772.5(l), as proposed, would 

define the term ‘‘impacted receiver.’’ 

There are references throughout the 

current regulation about determining 

traffic noise impacts. This definition 

would clarify that traffic noise impacts 

can occur two ways, either by 

approaching or exceeding an absolute 

noise level, called the Noise Abatement 

Criteria (NAC) or by a noise level 

substantially increasing over the 

existing sound level. Impacted receiver 

would be referenced in proposed 

sections 772.9 and 772.11 of this NPRM. 

Section 772.5(m), as proposed, would 

define the term ‘‘benefited receiver.’’ A 

benefited receiver would not also have 

to be an impacted receiver. Benefited 

receiver would be referenced in 

proposed section 772.9 of this NPRM. 

Section 772.5(n), as proposed, would 

define the term ‘‘feasibility.’’ The 

current regulation makes references to 

feasibility, and it is defined in the 1995 

Policy and Guidance document; 

however, it is not defined in the current 

regulation. Proposed section 772.9 of 

this NPRM refers to feasibility. 

Section 772.5(o), as proposed, would 

define the term ‘‘reasonableness.’’ 

Reasonableness would be determined by 

considering several factors. The current 

regulation makes references to 

reasonableness and it is defined in the 

1995 Policy and Guidance document; 

however, it is not defined in the current 

regulation. Sections 772.9, 772.11 and 

772.15 of this NPRM refer to 

reasonableness. 

Section 772.5(p), as proposed, would 

define the term ‘‘common noise 

environment’’ and provide clarification 

to proposed section 772.9(e), concerning 

the concept of averaging the cost of 

noise abatement among benefited 

receivers within a common noise 

environment. 

Section 772.5(q), as proposed, would 

define the term ‘‘property owner,’’ 

which is referred to proposed sections 

772.9, and 772.11 of this NPRM. 

Section 772.5(r), as proposed, would 

define the term ‘‘substantial 

construction’’ as the granting of a 

building permit, the filing of a plat plan, 

or the occurrence of a similar action 

prior to right-of-way acquisition or 

construction approval for the original 

highway. 

Section 772.5(s), as proposed, would 

define the term ‘‘severe noise impact.’’ 

The regulation currently references 

severe noise impacts in section 

772.13(d) but does not define the term. 

Severe noise impacts would be 

referenced in proposed section 772.13 of 

this NPRM. 

Section 772.5(t), as proposed, would 

combine the definitions of ‘‘L10’’ and 

‘‘L10(h)’’ into one definition of L10, 

since it is unnecessary to have two 

definitions for L10. L10(h) would be 

referenced in proposed Table I of this 

NPRM. 

Section 772.5(u), as proposed, would 

combine the definitions of ‘‘Leq’’ and 

‘‘Leq(h)’’ into one definition of Leq 

since it is unnecessary to have two 

definitions for Leq. Leq(h) would be 

referenced in proposed Table I of this 

NPRM. 

Section 772.7(a), as proposed, would 

make this regulation applicable to all 

Federal lands and Federal-aid projects 

authorized under Title 23. 

Section 772.7(b), as proposed, would 

emphasize that this regulation would be 

applied uniformly and consistently 

statewide. The principles of applying 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Proposed Rules 47765 

this regulation uniformly and 

consistently have been common 

practice, as supported by the 1995 

Policy and Guidance document. 

Section 772.7(c), as proposed, would 

combine sections 772.7(a) and 772.7(b) 

in the current regulation and would 

include recommendations on a Type II 

program and Type III projects. The 

current section applies to all Type I 

projects unless the regulation 

specifically indicates that a section 

applies only to a Type II project. This 

section would refer to Type III projects 

as a new project category. 

The language in current section 

772.7(b) would now be found, in part, 

in proposed section 772.7(c)(1). We 

propose to remove the reference to 

when a Type II project is proposed for 

Federal-aid highway participation at the 

option of the highway agency (the 

proposed provisions of sections 

772.9(c), 772.13, and 772.19) because it 

is redundant. Section 772.7(c), as 

proposed, would state that there are 

specific sections of the regulation that 

only apply to a Type II project. 

Section 772.7(c)(2), as proposed, 

would require highway agencies 

choosing to participate in a Type II 

program to develop a priority system, 

based on a variety of factors, and rank 

the projects. The FHWA then must 

approve a highway agency’s priority 

system before Federal-aid funds can be 

used. The parameters for the 

development of a priority system for a 

State highway agency’s Type II program 

are currently contained in the 1995 

Policy and Guidance document and 

help ensure equitable application of this 

optional program across social, 

economical and environmental factors. 

With the addition of a Type III project 

in proposed section 772.7(c)(3), a 

highway agency would not be required 

to complete a noise analysis or consider 

abatement measures for Type III 

projects. Section 772.9(b)(2), as 

proposed, would require a highway 

agency to complete a traffic noise 

analysis of each Activity Category listed 

in Table 1 that is present in the project 

study area. The current regulation does 

not provide this direct link between the 

noise analysis and Table 1. Additional 

clarification and connection to the NAC 

listed in Table 1, as proposed, would be 

provided in proposed sections 

772.9(b)(2)(i)–(v). 

Section 772.9(b)(2)(i), would require 

highway agencies to submit justification 

to the FHWA on a case-by-case basis for 

approval of an Activity Category A 

designation. Activity Category A 

designations are extremely rare due to 

the difficulty in meeting these 

requirements; therefore, approval by the 

FHWA would be required to ensure the 

property meets the requirements and 

that the designation would be uniformly 

and consistently applied. 

Section 772.9(b)(2)(ii), as proposed, 

would divide Activity Category B into 

residences, both single-family and 

multifamily, and special land use 

facilities. The definition of a special 

land use facility would be found in 

proposed section 772.5(e) of this NPRM. 

Highway agencies would be required to 

adopt a standard practice for analyzing 

these special land use facilities, which 

would allow the highway agency to 

uniformly and consistently apply the 

regulation when a project area 

contained a special land use facility. A 

highway agency could categorize the 

standard practice for special land use 

facilities by context and intensity, i.e., 

land use type, usage, project level, etc. 

Section 772.9(b)(2)(iii), as proposed, 

would restate Activity Category C, 

which Table 1 lists as ‘‘Developed 

lands, properties, or activities not 

included in Categories A or B above.’’ It 

is the FHWA’s position that this is 

comprised of both commercial and 

industrial land uses. These land uses are 

the only developed land use types not 

already listed in Categories A or B. 

Section 772.9(b)(2)(iv)(A), as 

proposed, would require a highway 

agency to determine if undeveloped 

land is planned, designed, and 

programmed for development. Planned, 

designed, and programmed is listed in 

the current regulation in section 

772.9(b)(1), and would be defined in 

proposed section 772.5(g). The 1995 

Policy and Guidance document 

provided guidance on the exact date 

that undeveloped land could be 

determined planned, designed, and 

programmed. This section, as proposed, 

would require the highway agency to 

identify the milestones or activities and 

associated dates for acknowledging 

when undeveloped land is considered 

planned, designed, and programmed, 

choose the milestone or activity that 

best fulfills its requirements and apply 

them consistently and uniformly 

statewide. 

Section 772.9(b)(2)(iv)(B), as 

proposed, would require a highway 

agency to determine future noise levels 

when undeveloped land is planned, 

designed, and programmed and, where 

appropriate, to consider abatement 

measures. This would clarify current 

section 772.9(b)(1), which requires a 

highway agency to complete a noise 

analysis for undeveloped lands for 

which development is planned, 

designed, and programmed. 

Section 772.9(b)(2)(iv)(C), as 

proposed, would recommend methods 

to assess noise levels for undeveloped 

lands that are not planned, designed, 

and programmed for development. If 

undeveloped land is not planned, 

designed, and programmed by the date 

of public knowledge, the highway 

agency would be required to determine 

noise levels and document the results in 

the project’s environmental clearance 

documents and noise analysis 

documents. Lands that are not planned, 

designed, and programmed by the date 

of public knowledge would not be 

eligible for consideration for Federal 

participation for noise abatement 

measures. The date of public knowledge 

would be defined in proposed section 

772.5(h) of this NRPM. The 1995 Policy 

and Guidance document states that the 

date of public knowledge is the date 

when the Federal government is no 

longer responsible for providing noise 

abatement for new development that 

occurs adjacent to the proposed 

highway project. The date of public 

knowledge could not precede the date of 

approval of CEs, FONSIs, or RODs. 

Section 772.9(b)(2)(v), as proposed, 

would require a highway agency to only 

conduct an indoor analysis for Activity 

Category E, which proposed Table 1 

lists as the interior of residences, 

motels, hotels, public meeting rooms, 

schools, places of worship, libraries, 

hospitals, and auditoriums, after 

completing an analysis of the outdoor 

activity areas. A highway agency would 

be required to exhaust all outdoor 

analysis options before performing an 

indoor analysis. 

Section 772.9(b)(3), as proposed, 

would require, for a Type I project, the 

traffic noise analysis study area to 

extend at least 500 feet from the project 

of the build alternative(s) as the 

minimum area; however, highway 

agencies could choose to routinely 

analyze at distances greater than 500 

feet. A highway agency would be 

required to analyze any area beyond the 

minimum distance if the highway 

agency believed that traffic noise 

impacts could occur. These minimum 

areas for analyzing traffic noise impacts 

would ensure that the highway agency 

identified all potentially impacted 

receivers. If impacts were determined 

beyond the minimum area of analysis, a 

highway agency would be required to 

include those impacts in the 

consideration of feasible and reasonable 

noise abatement measures. 

Section 772.9(c)(3)(i), as proposed, 

would require highway agencies to 

establish an ‘‘approach’’ level for 

determining a traffic noise impact as at 

least 1 dB(A) less than the NAC. This is 

consistent with the 1995 Policy and 

Guidance document. 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
47766 Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Proposed Rules 

Section 772.9(c)(3)(ii), as proposed, 

would require highway agencies to 

define the term ‘‘substantial noise 

increase.’’ The 1995 Policy and 

Guidance document makes reference to 

a 10 dB(A) and a 15 dB(A) substantial 

increase criteria but then indicates that 

the FHWA will ‘‘accept a well-reasoned 

definition that is uniformly and 

consistently applied.’’ Since 1995, it has 

become common practice for a highway 

agency to define a substantial increase 

as a design year noise increase over 

existing noise levels of between 10 

dB(A) to 15 dB(A). Therefore, the 

FHWA is proposing to require a State 

highway agency to define a substantial 

noise increase criterion between 10 

dB(A) to 15 dB(A). The second sentence 

in section 772.9(c)(3)(ii), as proposed, is 

consistent with the 1995 Policy and 

Guidance document, which states, ‘‘A 

traffic noise impact occurs when the 

predicted levels approach or exceed the 

NAC or when predicted traffic noise 

levels substantially exceed the existing 

noise level, even though the predicted 

levels may not exceed the NAC.’’ 

Therefore, we propose no lower dB(A) 

limit when considering a substantial 

noise increase. 

Section 772.9(c)(4), as proposed, 

would require a traffic noise analysis to 

include an assessment of impacted and 

benefited receivers, which are defined 

in these proposed sections 772.5(l) and 

772.5(m), respectively. We also propose 

in this section that a ‘‘highway agency 

shall define the threshold for the noise 

reduction which determines a benefited 

receiver as at least 5 dB(A).’’ It is the 

FHWA’s position that, since it requires 

a 5 dB(A) noise reduction for a noise 

abatment measure to be deemed 

acoustically feasible, the same principle 

should be required for a receiver to be 

classified as benefiting from the noise 

abatement measure. 

Section 772.9(c)(5), as proposed, 

would require a traffic noise analysis to 

include an examination and evaluation 

of feasible and reasonable noise 

abatement measures for reducing traffic 

noise impacts. The regulation would not 

specify what to include in determining 

that a noise abatement measure is 

feasible and/or reasonable; however, the 

1995 Policy and Guidance document 

indicates that both feasibility and 

reasonableness should include several 

factors and provides several examples. 

As a result, we propose each highway 

agency develop feasibility and 

reasonableness factors for FHWA 

approval. The factors in proposed 

sections 772.9(c)(5)(i)–(ii) are the 

minimum factors a highway agency 

would be required to include in its 

feasibility and reasonableness factors. 

Section 772.9(c)(5)(i)(A), as proposed, 

would require feasibility factors to 

include an ‘‘achievement of at least a 5 

dB(A) highway traffic noise reduction at 

the majority of the impacted receivers 

* * *.’’ The 5 dB(A) reduction in noise 

is supported by the 1995 Policy and 

Guidance document, and ‘‘majority’’ 

would be required to mean at least one 

percentage point over 50 percent. 

Section 772.9(c)(5)(i)(B), as proposed, 

would require that, for a noise 

abatement measure to be feasible, a 

highway agency must determine that ‘‘it 

is possible to design and construct a safe 

noise abatement measure.’’ This 

requirement would reiterate safety as a 

key concern of both the FHWA and 

State highway agencies. 

Section 772.9(c)(5)(ii)(A), as 

proposed, would require that 

reasonableness include ‘‘consideration 

of the desires of the property owners of 

the impacted receivers.’’ Section 

772.11(f), as proposed, describes how 

that would be determined. 

Section 772.9(c)(5)(ii)(B), as proposed, 

would deviate from current practice 

provided in the 1995 Policy and 

Guidance document. Highway agencies 

currently determine a cost per square 

foot of their noise abatement measures 

based on their own criteria and then 

choose from a range of $15,000 to 

$50,000 per benefited receiver, as 

allowed by the 1995 Policy and 

Guidance document. The highway 

agency then multiplies the square 

footage of the noise abatement measure 

by the cost per square foot to get the 

total cost of the noise abatement 

measure. Once the total cost of the noise 

abatement measure is determined, the 

highway agency divides this total cost 

by the number of benefited receivers. 

Instead of dividing by a cost/benefited 

receiver, some highway agencies divide 

by a cost/benefited receiver/dB(A). In 

this section, we propose to allow each 

highway agency to determine, with 

FHWA approval, the allowable cost of 

abatement by determining a baseline 

cost reasonableness value. This 

determination could include the actual 

construction cost of noise abatement, 

cost per square foot of abatement, and 

either the cost/benefited receiver or 

cost/benefited receiver/dB(A). 

Section 772.9(c)(5)(ii)(B), as proposed, 

would require a highway agency to reanalyze the allowable cost for abatement 

at regular intervals, not to exceed 5 

years. This would ensure that the cost 

of a noise abatement measure is 

reassessed for inflation of construction 

costs. Section 772.9(c)(5)(ii)(B), as 

proposed, would also give a highway 

agency the option of justifying, for 

FHWA approval, different cost 

allowances for a particular geographic 

area(s) within the State. This proposed 

change would provide flexibility to the 

highway agency when developing its 

allowable cost of abatement. If the 

highway agency develops different cost 

allowances for particular geographic 

areas, the highway agency would be 

required to consistently apply these 

methodologies as would be required by 

proposed section 772.7(b). 

Section 772.9(c)(5)(iii), as proposed, 

would allow a highway agency to 

consider other reasonableness factors, 

including the date of development, 

length of exposure to highway traffic 

noise impacts, exposure to higher 

absolute highway traffic noise levels, 

changes between existing verses future 

build conditions, mixed zoning 

development, and implementation of 

noise compatible planning concepts. 

Only the reasonableness factors listed in 

proposed section 772.9(c)(5) would be 

allowed on Federal-aid highway 

projects. 

Section 772.9(d), as proposed, would 

deviate from the 1995 Policy and 

Guidance document regarding third 

party funding for noise abatement. The 

1995 Policy and Guidance document 

allows third party funding to pay for the 

difference between the actual cost of a 

noise abatement measure and the 

reasonable cost, as long as it is done in 

a nondiscriminatory manner. It is the 

FHWA’s position that, in order to 

comply with the requirements of Title 

IV and the Executive Order on 

Environmental Justice (E.O. 12898), it is 

only acceptable to permit a third party 

funding on a Type I or Type II Federalaid highway project if the noise 

abatement measure would be 

considered feasible and/or reasonable 

without the additional funding. The 

determination of feasibility and 

reasonableness to fund the construction 

of a noise abatement measure would be 

based solely on the highway agency’s 

requirements for determining feasibility 

and reasonableness. However, it would 

be acceptable for a Federal-aid highway 

project, either Type I or Type II, to allow 

a third party to contribute funds to make 

functional (e.g., absorptive treatment, 

access doors) or aesthetic enhancements 

to a noise abatement measure already 

determined feasible and reasonable. 

Section 772.9(e), as proposed, would 

allow a highway agency to average the 

cost of noise abatement measures among 

benefited receivers within a common 

noise environment for both Type I and 

Type II projects, and average the cost of 

noise abatement measures. Some 

highway agencies currently use costaveraging practices. This proposed 

language would provide a parameter for 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Proposed Rules 47767 

this practice to allow uniform and 

consistent application. This parameter 

would include ‘‘within a common noise 

environment.’’ A common noise 

environment would be defined in 

proposed section 772.5(p) of this NPRM. 

Section 772.11(c), as proposed, would 

modify the current regulation by 

requiring a highway agency to consider 

abatement measures for an identified 

noise impact. The abatement measures 

listed in section 772.13(c) would be 

eligible for Federal funding and, at a 

minimum, the highway agency would 

be required to consider noise abatement 

in the form of a noise barrier. The noise 

abatement measures listed in section 

772.13(c), as proposed, would be 

eligible for Federal-aid funding but a 

highway agency would not be required 

to consider each noise abatement 

measure listed in proposed section 

772.13(c). The only noise abatement 

measure a highway agency would be 

required to consider would be a noise 

barrier. 

Section 772.11(d), as proposed, would 

clarify the meaning of ‘‘substantial noise 

reductions’’ by adding ‘‘which at a 

minimum, shall be at least 5 dB(A) for 

the majority of the impacted receivers.’’ 

Impacted receivers would be defined in 

section 772.5(l), as proposed, and the 

definition of majority would be 

included in proposed section 

772.9(c)(5)(i)(A). 

Section 772.11(e), as proposed, would 

remove the phrase ‘‘final environmental 

impact statement’’ and add the full 

range of environmental documentation 

to include ‘‘Categorical Exclusion, 

Finding of No Significant Impact and 

Record of Decision.’’ Section 

772.11(e)(1), as proposed, would switch 

the order of ‘‘reasonable and feasible’’ to 

‘‘feasible and reasonable.’’ In the 

process of assessing a noise abatement 

measure, it is not logical to consider 

cost or views of the impacted receivers 

if the noise abatement measure has not 

been first assessed to determine if it is 

feasible, as defined in section 

772.9(c)(5)(i), as proposed. Section 

772.11(e)(2), as proposed, would remove 

‘‘no apparent solution’’ and replace it 

with ‘‘no noise abatement measures are 

feasible and reasonable.’’ 

Section 772.11(f), as proposed, would 

clarify methods for soliciting the 

viewpoints of the benefited property 

owners by requiring a highway agency 

to solicit the viewpoints from all and 

receive responses from a majority of the 

benefited property owners. It is the 

FHWA’s position that highway agencies 

should make good-faith efforts to solicit 

the viewpoints of all benefited property 

owners, since it relates to the 

reasonableness determination of noise 

abatement measures. Majority would 

mean at least one percentage point over 

50 percent. This section also would 

require a highway agency to solicit only 

the viewpoints of the property owner(s) 

of a benefited receiver when 

determining reasonableness of a noise 

abatement measure. A highway agency 

would not consider the viewpoints of 

other entities to determine 

reasonableness unless explicitly 

authorized by the property owner(s). It 

is the position of FHWA that only the 

owners of the impacted property should 

have a deciding viewpoint on the 

reasonableness of a noise abatement 

measure, since owners have vested 

financial interests in the property. 

Section 772.11(h), as proposed, would 

clarify the FHWA’s position on noise 

analyses prepared for design-build 

projects. The stated goal of 23 CFR 636 

is to ensure an objective National 

Environmental Policy Act (NEPA) 

process. The regulation is clear that 

final design cannot occur until NEPA is 

complete. The NEPA process includes 

the technical studies the NEPA 

decisionmakers rely on to develop the 

NEPA document and the NEPA decision 

document. This proposed provision 

would ensure an objective NEPA 

process by preventing the contractor 

from making NEPA decisions based 

solely on cost, which could potentially 

violate the conflict of interest 

requirements in 40 CFR 1506(c). The 

design-build regulation at 23 CFR 

636.109(b) states that the design-build 

contract must include appropriate 

provisions ensuring that all 

environmental and mitigation measures 

identified in the NEPA document will 

be implemented and that the designbuilder must not prepare the NEPA 

document or have any decision making 

responsibility with respect to the NEPA 

process. In order to comply with these 

provisions, a highway agency would be 

required to complete a technical noise 

analysis and abatement design as part of 

NEPA and the preliminary design. This 

is necessary to avoid a minimalist 

approach to noise abatement where the 

abatement measure is designed to the 

NAC or feasibility criterion, rather than 

to achieve a substantial reduction in 

accordance with the 1995 Policy and 

Guidance and to satisfy section 

772.11(c), as proposed. 

Section 772.13(a), as proposed, would 

clarify that the requirements of 

proposed sections 772.13(a)(1)–(2) 

would be required for both Type I and 

Type II projects. Section 772.13(a)(2), as 

proposed, would combine sections 

772.13(a)(2)–(3) in the current 

regulation to state ‘‘[a]batement 

measures have been determined to be 

feasible and reasonable per § 772.9(c)(5) 

of this chapter.’’ By changing this 

sentence to include feasible and 

reasonable we would incorporate the 

intent in sections 772.13(a)(2)–(3). 

Section 772.13(c), as proposed, would 

rename the subsection as ‘‘Noise 

Abatement Measures’’ to delineate 

clearly the purpose of the proposed 

section. Section 772.13(c), as proposed, 

lists the five noise abatement measures 

available for Federal-aid funding. The 

current regulation contains six noise 

abatement measures. We propose 

combining current sections 772.13(c)(3) 

and 772.13(c)(4), which deal with noise 

barriers as noise abatement measures. 

We propose to list noise barriers as the 

first noise abatement measure. Noise 

barriers currently are listed in sections 

772.13(c)(3) and 772.13(c)(4), and we 

propose to list them in section 

772.13(c)(1) solely because they are the 

most frequently used form of noise 

mitigation. The remaining noise 

abatement measures provided in the 

current regulation are listed in 

sequential order in this proposed 

section. 

Section 772.13(c)(1), as proposed, 

would clarify the FHWA’s position on 

Federal-aid funding for landscaping. 

This proposed language would replace 

section 772.13(c)(3) while retaining the 

intent of the current regulation. Section 

772.13(c)(5), as proposed, would clarify 

that noise insulation of public use or 

nonprofit institutional structures would 

be eligible for Federal funding. 

Section 772.13(d), as proposed, would 

require highway agencies to define 

severe noise impacts in accordance with 

proposed section 772.5(s). The proposed 

changes to this section would clarify the 

FHWA’s position on the process 

required for a severe noise impact on a 

Federal-aid highway project. A noise 

analysis considers the worst-case noise 

environment for the design year of the 

Federal-aid highway project; therefore, 

it is the FHWA’s position that the severe 

noise impact would be derived from the 

‘‘future build condition’’; not the 

existing condition. We also propose that 

the highway agency first determine if 

the abatement measures listed in 

paragraph (c) of this section provide 

feasible and reasonable exterior noise 

abatement for severe noise impacts. If 

exterior noise abatement is not 

achievable, the highway agency may 

consider the following options; 

however, they shall be considered in 

sequence and submitted for FHWA 

approval, on a case-by-case basis. These 

options are listed in proposed sections 

772.13(d)(1) and 772.13(d)(2), 

respectively. It is the FHWA’s position 

to first allow highway agencies to 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
47768 Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Proposed Rules 

exceed their allowable cost of 

abatement. While the 1995 Policy and 

Guidance document does not mention 

exceeding the highway agency’s 

allowable cost of abatement as an 

option, it is the FHWA’s position that 

this is the first logical option to 

consider. If this were not a viable option 

due to excessive cost, then the highway 

agency would have the option of noise 

insulating a privately owned structure. 

Typically, noise insulating refers to 

providing additional wall insulation or 

replacement windows. The 1995 Policy 

and Guidance document refers to noise 

insulating privately owned structures as 

an abatement option for severe noise 

impacts. These proposed changes would 

maintain the intent of the current 

regulation on severe impacts, while 

providing clarification and flexibility to 

highway agencies seeking additional 

abatement options for severe impacts. 

Section 772.13(e), as proposed, would 

be renamed ‘‘Abatement Measure 

Reporting’’ to delineate clearly that this 

section would require each highway 

agency to report all constructed noise 

abatement measures. The FHWA had 

requested the information proposed in 

this paragraph from highway agencies 

up to December 31, 2007, in the form of 

a noise barrier inventory. This 

information is helpful in providing a 

national inventory of noise barrier 

location, cost, materials and size. The 

information reported by highway 

agencies up to and including 2004 may 

currently be found at: http:// 

www.fhwa.dot.gov/environment/ 

ab_noise.htm. 

Section 772.15(a)(i), as proposed, 

would require a highway agency to 

inform local officials of ‘‘noise 

compatible planning concepts.’’ The 

FHWA has supported the concepts 

surrounding noise compatible planning 

since the early 1970s, starting with the 

publication of ‘‘The Audible Landscape: 

A Manual for Highway Noise and Land 

Use’’ (http://www.fhwa.dot.gov/ 

environment/audible/index.htm). Noise 

compatible planning encourages the 

location of less noise-sensitive land uses 

near highways, promotes the use of 

open space separating roads from 

developments, and suggests special 

construction techniques that minimize 

the impact of noise from highway 

traffic. 

Section 772.15(a)(ii), as proposed, 

would clarify section 772.15(a) of the 

current regulation while retaining the 

intent of the current regulation, which 

is to provide estimates of future noise 

levels at various distances from the 

highway project. The proposed language 

would specify that the distance from the 

highway would be from the edge of the 

near travel lane to the point highway 

agency’s ‘‘approach’’ criteria. This 

clarification would apply only within 

the project area. 

Section 772.15(b), as proposed, would 

require a highway agency choosing to 

use the date of development as one of 

the factors in determining the 

reasonableness of a noise abatement 

measure to have a statewide outreach 

program to inform local officials and the 

public on the items in sections 

772.15(a)(i)–(iv), as proposed. As 

discussed above, the FHWA has 

promoted noise compatible planning 

since the 1970s. Although land use 

control is a responsibility of local 

governments, it is the FHWA’s position 

that, if a highway agency chooses to use 

the ‘‘date of development’’ as a 

reasonableness factor, it should be 

required to promote the concepts of 

noise compatible planning through an 

outreach program. This outreach 

program would allow all local 

jurisdictions and the public within the 

State the opportunity to be informed on 

the concepts of noise compatible 

planning, possibly giving way to these 

concepts being implemented and 

therefore avoiding, or at least lessening, 

the number of traffic noise impacts near 

highways. 

Section 772.17(a), as proposed, would 

make two editorial changes. In May 

2007, the FHWA moved to 1200 New 

Jersey Avenue, SE., Washington, DC 

20590. Additionally, the Internet site 

www.trafficnoisemodel.org no longer 

exists. All information regarding the 

FHWA Traffic Noise Model (TNM) may 

be found at http://www.fhwa.dot.gov/ 

environment/noise/index.htm. 

Section 772.17(b), as proposed, would 

allow highway agencies the option to 

use the FHWA TNM Look-up Program 

(FHWA TNM Look-up) as a screening 

tool to determine the absence of 

potential noise impacts or if a more 

detailed analysis is needed with the 

FHWA TNM. The additional items that 

would be required to be adhered to are 

contained in proposed sections 

772.17(b)(1)–(2). 

Section 772.17(b)(1), as proposed, 

would prohibit a highway agency using 

the FHWA TNM Look-up, in addition to 

the limitations as indicated in Report 

No. FHWA–HEP–05–008, from using 

the FHWA TNM Look-up for roadways 

with more than 2 travel lanes, with total 

paved widths greater than 24 feet 

including shoulders and median, or 

containing intersections. 

Section 772.17(b)(2), as proposed, 

would require that, if a highway agency 

chooses to use the FHWA TNM Look-up 

program, the results must be evaluated 

with at least a 5 dB(A) safety factor. This 

requirement would result from the 

FHWA TNM Look-up program’s simple 

highway geometries and resulting 

limitations. Section 772.17(b)(2)(ii), as 

proposed, also recommends that, if the 

output from the FHWA TNM Look-up is 

greater than 5 dB(A) from the NAC and/ 

or the comparison between the existing 

condition to future build conditions is 

less than the highway agency’s 

definition of substantial noise increase, 

the highway agency should document 

the results indicating no impacts for the 

project. These requirements would 

ensure the proper assessment of traffic 

noise impacts. 

Section 772.17(b)(3), as proposed, 

would prohibit a highway agency from 

using the FHWA TNM Look-up to 

determine feasible and reasonable noise 

abatement. It is not the intent of the 

FHWA TNM Look-up program to 

determine feasible and reasonable noise 

abatement, nor is it capable to assist in 

such a determination. 

Section 772.17(c), as proposed, would 

include a new sentence that would 

permit a highway agency to use noise 

contour lines for land use planning but 

not to determine traffic noise impacts. 

Noise contours are appropriate to use as 

a tool to graphically educate local 

governments and the public about the 

existing and future noise conditions in 

a project area, but not to determine 

traffic noise impacts. Traffic noise 

impacts should be determined in 

accordance with proposed section 

772.17(a). 

In Table 1 of Part 772 –NAC, as 

proposed, the format and column 

headings as well as the ‘‘Activity 

Description’’ for both Activity Category 

B and E would be changed. The first 

column of Table 1, however, would 

remain unchanged. The proposed 

language would retain the second and 

third columns’ existing titles, ‘‘Leq(h)’’ 

and L10(h)’’, but incorporate them into 

a broader column heading entitled 

‘‘Activity Criteria.’’ The proposed 

changes would also remove the 

‘‘(Exterior)’’ and ‘‘(Interior)’’ clarifiers 

within the ‘‘Leq(h)’’ and L10(h)’’ 

columns and add them to a new column 

labeled ‘‘Evaluation Location.’’ Further, 

proposed language would rename the 

heading of the last column as ‘‘Activity 

Description.’’ For Activity Category B 

and E, as proposed, ‘‘churches’’ would 

be ‘‘places of worship,’’ as not all 

religions worship in a ‘‘church.’’ 

Finally, Table 1, as proposed, would 

include ‘‘cemeteries, campgrounds, 

trails, and trail crossings’’ in Activity 

Category B. The inclusion of these 

activities is supported by a June 16, 

1995, FHWA memo (http:// 

www.fhwa.dot.gov/environment/noise/ 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Proposed Rules 47769 

cemetery.pdf) indicating these activities 

should be considered an Activity 

Category B land use. These activities 

should be assessed in the same manner 

as the other special land use facilities in 

the description of proposed section 

772.5(e). 

In Table 1, as proposed, a second 

footnote would be added. This footnote 

is associated with the ‘‘Activity 

Criteria’’ and would state that ‘‘[t]he 

Leq(h) and L10(h) Activity Criteria 

values are for impact determination 

only, and are not design standards for 

noise abatement measures.’’ This is 

supported by the 1995 Policy and 

Guidance document which states 

‘‘[t]raffic noise impacts can occur below 

the NAC. The NAC should not be 

viewed as Federal standards or desirable 

noise levels; they should not be used as 

design goals for noise barrier 

construction.’’ 

In Appendix A to Part 772—National 

Reference Energy Mean Emission Levels 

as a Function of Speed, as proposed, 

would be removed. A previous NPRM 

on 23 CFR 772 (FHWA Docket No. 

FHWA–2004–018309) stated that the 

vehicle emission levels as graphically 

shown in Appendix A are no longer 

needed ‘‘since this technology has now 

been well established and documented 

for more than two decades, the FHWA 

noise regulation no longer needs to 

include any reference to a measurement 

report or to vehicle emission levels. 

Therefore, the FHWA proposes to 

remove these references from the 

regulation.’’ While this previous 

proposal was discussed in the 

‘‘Background’’ section of the NPRM, 

FHWA’s intent was to remove both the 

references to Appendix A as well as 

Appendix A. Therefore, we propose 

removing Appendix A. 

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 in the docket at the above 

address. Comments received after the 

comment closing date will be filed in 

the docket and will be considered to the 

extent practicable, but the FHWA may 

issue a final rule at any time after the 

close of the comment period. In 

addition to late comments, the FHWA 

will also continue to file relevant 

information in the docket as it becomes 

available after the comment period 

closing date, and interested persons 

should continue to examine the docket 

for new material. 

Executive Order 12866 (Regulatory 

Planning and Review) and U.S. DOT 

Regulatory Policies and Procedures 

The FHWA has determined that this 

proposed rule would not be a significant 

regulatory action within the meaning of 

Executive Order 12866 and would not 

be significant within the meaning of the 

U.S. Department of Transportation 

regulatory policies and procedures. 

The proposed amendments revise 

requirements for traffic noise prediction 

on Federal-aid highway projects to be 

consistent with the current state-of-theart technology for traffic noise 

prediction. It is anticipated that the 

economic impact of this rulemaking 

would be minimal; therefore, a full 

regulatory evaluation is not required. 

Regulatory Flexibility Act 

In compliance with the Regulatory 

Flexibility Act (RFA) (Pub. L. 96–354, 5 

U.S.C. 601–612), the FHWA has 

evaluated the effects of this proposed 

rule on small entities and anticipates 

that this action would not have a 

significant economic impact on a 

substantial number of small entities. 

The proposed amendment addresses 

traffic noise prediction on certain State 

highway projects. As such, it affects 

only States, and States are not included 

in the definition of small entity set forth 

in 5 U.S.C. 601. Therefore, the RFA does 

not apply, and the FHWA certifies that 

the proposed action would not have a 

significant economic impact on a 

substantial number of small entities. 

Unfunded Mandates Reform Act of 

1995 

This NPRM would not impose 

unfunded mandates as defined by the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, March 22, 1995, 109 

Stat. 48). The actions proposed in this 

NPRM would not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $121.8 million or more 

in any one year (2 U.S.C. 1532). Further, 

in compliance with the Unfunded 

Mandates Reform Act of 1995, FHWA 

will evaluate any regulatory action that 

might be proposed in subsequent stages 

of the proceeding to assess the affects on 

State, local, and tribal governments and 

the private sector. Additionally, the 

definition of ‘‘Federal Mandate’’ in the 

Unfunded Mandates Reform Act 

excludes financial assistance of the type 

in which State, local, or tribal 

governments have authority to adjust 

their participation in the program in 

accordance with changes made in the 

program by the Federal government. 

The Federal-aid highway program 

permits this type of flexibility. 

Executive Order 13132 (Federalism) 

This proposed action has been 

analyzed in accordance with the 

principles and criteria contained in 

Executive Order 13132, dated August 4, 

1999, and it has been determined that 

this proposed action does not have a 

substantial direct effect or sufficient 

federalism implications on States that 

would limit the policymaking discretion 

of the States. Nothing in this proposed 

rule directly preempts any State law or 

regulation or affects the States’ ability to 

discharge traditional State governmental 

functions. 

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. 

National Environmental Policy Act 

The FHWA has analyzed this 

proposed action for the purpose of the 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) and anticipates that 

this action would not have any effect on 

the quality of the human and natural 

environment, since it proposes to 

update the specific reference to 

acceptable highway traffic noise 

prediction methodology and remove 

unneeded references to a specific noise 

measurement report and vehicle noise 

emission levels. 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501, et seq.), 

Federal agencies must obtain approval 

from the Office of Management and 

Budget (OMB) for each collection of 

information they conduct, sponsor, or 

require through regulations. FHWA 

determined that this NPRM would affect 

a currently approved information 

collection for OMB Control Number 

2125–0622, titled ‘‘Noise Barrier 

Inventory Request.’’ OMB approved this 

information collection on July 30, 2008, 

at a total of 416 burden hours, with an 

expiration date of July 31, 2011. 

Executive Order 13175 (Tribal 

Consultation) 

The FHWA has analyzed this 

proposed action under Executive Order 

13175, dated November 6, 2000, and 

believes that this proposed action would 

not have substantial direct effects on 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
47770 Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Proposed Rules 

one or more Indian tribes; would not 

impose substantial direct compliance 

costs on Indian tribal governments; and 

would not preempt tribal law. This 

proposed rulemaking primarily applies 

to noise prediction on State highway 

projects and would not impose any 

direct compliance requirements on 

Indian tribal governments nor would it 

have any economic or other impacts on 

the viability of Indian tribes. Therefore, 

a tribal summary impact statement is 

not required. 

Executive Order 13211 (Energy Effects) 

The FHWA has analyzed this 

proposed action under Executive Order 

13211, Actions Concerning Regulations 

that Significantly Affect Energy Supply, 

Distribution or Use. We have 

determined that this proposed action 

would not be a significant energy action 

under that order because any action 

contemplated would not be likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

Therefore, the FHWA certifies that a 

Statement of Energy Effects under 

Executive Order 13211 is not required. 

Executive Order 12630 (Taking of 

Private Property) 

The FHWA has analyzed this 

proposed rule under Executive Order 

12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. The FHWA 

does not anticipate that this proposed 

action would affect a taking of private 

property or otherwise have taking 

implications under Executive Order 

12630. 

Executive Order 12988 (Civil Justice 

Reform) 

This 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 has analyzed this 

proposed action under Executive Order 

13045, Protection of Children from 

Environmental Health Risks and Safety 

Risks. The FHWA certifies that this 

proposed action would not cause an 

environmental risk to health or safety 

that may disproportionately affect 

children. 

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. 

Issued on: August 21, 2009. 

Victor M. Mendez, 

Federal Highway Administrator. 

In consideration of the foregoing, the 

FHWA proposes to revise part 772 of 

title 23, Code of Federal Regulations, as 

follows: 

PART 772—PROCEDURES FOR 

ABATEMENT OF HIGHWAY TRAFFIC 

NOISE AND CONSTRUCTION NOISE 

Sec. 

772.1 Purpose. 

772.3 Noise standards. 

772.5 Definitions. 

772.7 Applicability. 

772.9 Analysis of traffic noise impacts and 

abatement measures. 

772.11 Noise abatement. 

772.13 Federal participation. 

772.15 Information for local officials. 

772.17 Traffic noise prediction. 

772.19 Construction noise. 

Table 1 to Part 772—Noise Abatement 

Criteria 

Authority: 23 U.S.C. 109(h) and (i); 42 

U.S.C. 4331, 4332; sec. 339(b), Pub. L. 104– 

59, 109 Stat. 568, 605; 49 CFR 1.48(b). 

§ 772.1 Purpose. 

To provide procedures for noise 

studies and noise abatement measures 

to help protect the public health and 

welfare, to supply noise abatement 

criteria, and to establish requirements 

for information to be given to local 

officials for use in the planning and 

design of highways approved pursuant 

to title 23 U.S.C. 

§ 772.3 Noise Standards. 

The highway traffic noise prediction 

requirements, noise analyses, noise 

abatement criteria, and requirements for 

informing local officials in this 

regulation constitute the noise standards 

mandated by 23 U.S.C. 109(1). All 

highway projects which are developed 

in conformance with this regulation 

shall be deemed to be in accordance 

with the FHWA noise standards. 

§ 772.5 Definitions. 

(a) Type I Project. 

(1) The construction of a highway on 

new location, the addition of new 

interchanges or ramps added to a 

quadrant to complete an existing partial 

interchange; 

(2) The physical alteration of an 

existing highway which significantly 

changes either the horizontal or vertical 

alignment. The physical alteration of an 

existing highway which the highway 

agency has determined significantly 

changes either the horizontal or vertical 

alignment. A factor for determining a 

significant change shall be a 3 dB(A) 

increase in the noise environment when 

comparing the existing condition to the 

future build condition; 

(3) The addition of a through-traffic 

lane(s). This includes the addition of a 

through-traffic lane that functions as a 

HOV lane, High-Occupancy Toll (HOT) 

lane or truck climbing lane; or, 

(4) The addition of an auxiliary lane, 

when the auxiliary lane: 

(i) Increases capacity; 

(ii) Is, at a minimum, 1.5 miles long; 

(iii) Is added between interchanges to 

improve operational efficiency; 

(iv) Functions as a through-traffic 

lane, regardless of length; or 

(v) Significantly alters the horizontal 

or vertical alignment. 

(b) Type II Project. A Federal or 

Federal-aid highway project for noise 

abatement on an existing highway. For 

a Type II project to be eligible for 

Federal-aid, the highway agency must 

develop and implement a Type II 

program in accordance with section 

772.7(c)(2). 

(c) Type III Project. A Federal or 

Federal-aid highway project that does 

not meet the classifications of a Type I 

or Type II project. 

(d) Residence. A dwelling unit. Either 

a single family residence or each 

dwelling unit in a multifamily dwelling. 

(e) Special Land Use Facilities. All 

land uses listed in Table 1, Noise 

Abatement Criteria (NAC), Activity 

Category B, except for residences shall 

be considered ‘‘special use facilities’’ 

due to the difficulty in determining the 

number of receivers. 

(f) Multifamily Dwelling. A 

residential structure containing more 

than one residence. Each residence in a 

multifamily structure shall be counted 

as one receiver. 

(g) Planned, Designed, and 

Programmed. A definite commitment to 

develop land with an approved specific 

design of land use activities. 

(h) Date of Public Knowledge. The 

date of approval of the CE, the Finding 

of No Significant Impact FONSI, or the 

ROD. 

(i) Existing noise levels. The noise 

resulting from the natural and 

mechanical sources and human activity 

usually present in a particular area. 

(j) Traffic noise impacts. Highway 

traffic noise levels that approach or 

exceed the NAC listed in Table 1 for the 

future build condition; or future build 

condition noise levels that create a 

substantial noise increase over existing 

noise levels. 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Proposed Rules 47771 

(k) Design year. The future year used 

to estimate the probable traffic volume 

for which a highway is designed. 

(l) Impacted Receiver. The recipient of 

future build condition traffic noise 

levels that either approach or exceed the 

NAC or future build condition traffic 

noise level that substantially exceed the 

existing traffic noise levels. 

(m) Benefited Receiver. The recipient 

of an abatement measure that provides 

at least a 5 d(B)A noise reduction for a 

receiver. 

(n) Feasibility. The combination of 

acoustical and engineering factors of a 

noise abatement measure. 

(o) Reasonableness. The combination 

of social, economic and environmental 

factors of a noise abatement measure. 

(p) Common Noise Environment. A 

group of receivers exposed to similar 

noise sources and levels; traffic 

volumes, traffic mix, and speed; and 

topographic features. Generally, 

common noise environments occur 

between two secondary noise sources, 

such as interchanges, intersections, or 

cross-roads. 

(q) Property Owner. An individual or 

group of individuals that own property 

or a residence. 

(r) Substantial Construction. The 

granting of building permit, the filing of 

a plat plan, or the occurrence of a 

similar action prior to right-of-way 

acquisition or construction approval for 

the original highway. 

(s) Severe Noise Impact. An absolute 

noise level in the future build condition 

that is between 10 and 20 dB(A) Leq(h) 

over the NAC, or a noise level increase 

between 30 and 40 dB(A) over the 

existing noise levels. 

(t) L10. The sound level that is 

exceeded 10 percent of the time (the 

90th percentile) for the period under 

consideration, with L10(h) being the 

hourly value of L10. 

(u) Leq. The equivalent steady-state 

sound level which in a stated period of 

time contains the same acoustic energy 

as the time-varying sound level during 

the same time period, with Leq(h) being 

the hourly value of Leq. 

§ 772.7 Applicability. 

(a) This regulation applies to all 

Federal or Federal-aid Highway Projects 

authorized under title 23, United States 

Code. Therefore, this regulation applies 

to any highway project or multimodal 

project that: 

(1) Requires FHWA approval 

regardless of funding sources, or 

(2) Is funded with Federal-aid 

highway funds. 

(b) This regulation shall be applied 

uniformly and consistently statewide. 

(c) This regulation applies to all Type 

I projects unless the regulation 

specifically indicates that a section only 

applies to Type II or Type III projects. 

(1) The development and 

implementation of Type II projects are 

not mandatory requirements of section 

109(i) of title 23, United States Code. 

(2) If a highway agency chooses to 

participate in a Type II program, the 

highway agency shall develop a priority 

system, based on a variety of factors, to 

rank the projects in the program. This 

priority system shall be submitted to 

and approved by FHWA before the 

highway agency is allowed to use 

Federal-aid funds for a project in the 

program. 

(3) For a Type III project, a highway 

agency is not required to complete a 

noise analysis or consider abatement 

measures. 

§ 772.9 Analysis of traffic noise impacts 

and abatement measures. 

(a) The highway agency shall 

determine and analyze expected traffic 

noise impacts and alternative noise 

abatement measures to mitigate these 

impacts by giving weight to the benefits 

and costs of abatement and the overall 

social, economic, and environmental 

effects through feasible and reasonable 

noise abatement measures. 

(b) A traffic noise analysis shall be 

completed for: 

(1) Each alternative under detailed 

study; 

(2) Each Activity Category of the NAC 

listed in Table 1 that is present in the 

study area; 

(i) Activity Category A. This activity 

category includes lands on which 

serenity and quiet are of extraordinary 

significance and serve an important 

public need, and where the preservation 

of those qualities is essential for the area 

to continue to serve its intended 

purpose. Highway agencies shall submit 

justifications to the FHWA on a case-bycase basis for approval of an Activity 

Category A designation. 

(ii) Activity Category B. This activity 

category includes single-family and 

multifamily residences, as well as a 

variety of special land use facilities. 

Each highway agency shall adopt a 

standard practice for analyzing these 

special land use facilities that is 

consistent and uniformly applied 

statewide. 

(iii) Activity Category C. This activity 

category is comprised of commercial 

and industrial land use facilities. 

(iv) Activity Category D. This activity 

includes undeveloped lands. 

(A) A highway agency shall determine 

if undeveloped land is planned, 

designed, and programmed for 

development. A milestone or activity 

and its associated date for 

acknowledging when undeveloped land 

is considered planned, designed, and 

programmed shall be the date of 

issuance of a building permit, the date 

of final approval of the development 

plan, the date of recording of the plat 

plan, or any other date that 

demonstrates a local commitment for a 

specific design of land use activities 

intended for development on the 

property. 

(B) If undeveloped land is determined 

to be planned, designed, and 

programmed, then the highway agency 

must determine noise impacts and, if 

impacts are determined, must consider 

abatement measures. 

(C) If undeveloped land is not 

planned, designed, and programmed for 

development by the date of public 

knowledge, the highway agency shall 

determine noise levels and document 

the results in the project’s 

environmental clearance documents and 

noise analysis documents. Federal 

participation in noise abatement 

measures will not be considered for 

lands that are not planned, designed, 

and programmed by the date of public 

knowledge. 

(v) Activity Category E. A highway 

agency should only conduct an indoor 

analysis after fully completing an 

analysis of any existing outdoor activity 

area(s). 

(3) For a Type I project: 

(i) At least 500 feet from all termini 

of the build alternative(s); 

(ii) At least 500 feet from the edge of 

the near travel lane; 

(iii) For additional travel lanes and 

new roadways, for both sides of the 

road; and 

(iv) For ramps and interchanges, 

within at least a 500-foot line of the near 

travel lane for the project. 

(c) The traffic noise analysis shall 

include a(n): 

(1) Identification of existing activities, 

developed lands, and undeveloped 

lands, which may be affected by noise 

from the highway; 

(2) Determination and prediction of 

existing traffic noise levels; and 

(3) Determination of traffic noise 

impacts for the design year; 

(i) Highway agencies shall establish 

an approach level to be used when 

determining a traffic noise impact as at 

least 1 dB(A) less than the Noise 

Abatement Criteria listed in Table 1; 

(ii) Highway agencies shall define 

substantial noise increase between 10 

dB(A) to 15 dB(A) over existing noise 

levels. There is no lower threshold limit 

associated with a substantial noise 

increase, which is the difference 

between the existing and future noise 

levels. 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
47772 Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Proposed Rules 

(4) Assessment of Impacted and 

Benefited Receivers. Each highway 

agency shall define the threshold for the 

noise reduction which determines a 

benefited receiver as at least 5 dB(A). 

(5) Examination and evaluation of 

feasible and reasonable noise abatement 

measures for reducing the traffic noise 

impacts. Each highway agency, with 

FHWA approval, shall develop 

feasibility and reasonableness factors. 

These factors, at a minimum, shall 

include the following: 

(i) Feasibility: 

(A) Achievement of at least a 5 dB(A) 

highway traffic noise reduction at the 

majority of the impacted receivers; and 

(B) Determination that it is possible to 

design and construct a safe noise 

abatement measure. 

(ii) Reasonableness: 

(A) Consideration of the desires of the 

property owners of the impacted 

receivers; and 

(B) Cost of the highway traffic noise 

abatement measures. Each highway 

agency shall determine, and receive 

FHWA approval for, the allowable cost 

of abatement by determining a baseline 

cost reasonableness value. This 

determination may include the actual 

construction cost of noise abatement, 

cost per square foot of abatement, and 

either the cost/benefited receiver or 

cost/benefited receiver/dB(A). The 

highway agency shall re-analyze the 

allowable cost for abatement on a 

regular interval, not to exceed 5 years. 

A highway agency has the option of 

justifying, for FHWA approval, different 

cost allowances for a particular 

geographic area(s) within the State. 

(iii) In addition to the required 

reasonableness factors listed in 

§ 772.9(c)(5)(ii), a highway agency may 

also include the following 

reasonableness factors: date of 

development, length of exposure to 

highway traffic noise impacts, exposure 

to higher absolute highway traffic noise 

levels, changes between existing and 

future build conditions, mixed zoning 

development, and noise compatible 

planning concepts. No single 

reasonableness factor should be used as 

the sole basis in determining 

reasonableness. 

(d) On a Type I or Type II project, a 

highway agency shall only allow a third 

party to contribute additional funds 

towards the construction of a noise 

abatement measure or aesthetic 

treatments after the highway agency has 

determined that the noise abatement 

measure is feasible and reasonable. 

(e) On a Type I and Type II project, 

a highway agency may average the cost 

of noise abatement among benefited 

receivers within a common noise 

environment. 

(f) A highway agency proposing to use 

Federal-aid highway funds for a Type II 

project shall perform a noise analysis in 

accordance with § 772.9 of this part in 

order to provide information needed to 

make the determination required by 

§ 772.11(a) of this part. 

§ 772.11 Noise abatement. 

(a) In determining and abating traffic 

noise impacts, a highway agency shall 

give primary consideration to exterior 

areas. Abatement will usually be 

necessary only where frequent human 

use occurs and a lowered noise level 

would be of benefit. 

(b) In situations where no exterior 

activities are to be affected by the traffic 

noise, or where the exterior activities 

are far from or physically shielded from 

the roadway in a manner that prevents 

an impact on exterior activities, a 

highway agency shall use Activity 

Category E as the basis of determining 

noise impacts. 

(c) If a noise impact is identified, a 

highway agency shall consider 

abatement measures. The abatement 

measures listed in § 772.13(c) of this 

chapter are eligible for Federal funding. 

At a minimum, the highway agency 

shall consider noise abatement in the 

form of a noise barrier. 

(d) When noise abatement measure(s) 

are being considered, a highway agency 

shall make every reasonable effort to 

obtain substantial noise reductions 

which, at a minimum, shall be at least 

5 dB(A) for the majority of the impacted 

receivers. 

(e) Before adoption of a CE, FONSI, or 

ROD, the highway agency shall identify: 

(1) Noise abatement measures which 

are feasible and reasonable, and which 

are likely to be incorporated in the 

project; and 

(2) Noise impacts for which no noise 

abatement measures are feasible and 

reasonable. 

(f) A highway agency must solicit the 

viewpoints from all of the benefited 

property owners, and receive responses 

from a majority of those solicited. The 

highway agency shall only solicit the 

viewpoints of the property owner(s) of 

a benefited receiver when determining 

reasonableness of a noise abatement 

measure. The highway agency shall not 

consider the viewpoints of other entities 

to determine reasonableness, unless 

explicitly authorized by the benefited 

property owner(s). 

(g) The FHWA will not approve 

project plans and specifications unless 

feasible and reasonable noise abatement 

measures are incorporated into the 

plans and specifications to reduce the 

noise impact on existing activities, 

developed lands or undeveloped lands 

for which development is planned, 

designed, and programmed. 

(h) For design build projects, the 

preliminary technical noise study shall 

document all considered and proposed 

noise abatement measures for inclusion 

in the NEPA document. Final design of 

design-build noise abatement measures 

shall be based on the preliminary noise 

abatement design developed in the 

technical noise analysis. Noise 

abatement measures shall be 

considered, developed, and constructed 

in accordance with this standard and in 

conformance with the provisions of 40 

CFR 1506(c) and 23 CFR 636.109. 

§ 772.13 Federal participation. 

(a) Type I and Type II projects. 

Federal funds may be used for noise 

abatement measures when: 

(1) Traffic noise impacts have been 

identified; and 

(2) Abatement measures have been 

determined to be feasible and 

reasonable pursuant to § 772.9(c)(5) of 

this chapter. 

(b) For Type II projects. 

(1) Federal funds may be used for 

noise abatement measures, only if the 

funds: 

(i) Were approved by FHWA before 

November 28, 1995; or 

(ii) Were proposed along lands where 

land development or substantial 

construction predated the existence of 

any highway. 

(2) FHWA will not approve noise 

abatement measures for locations where 

such measures were previously 

determined not to be reasonable and 

feasible for a Type I project. 

(c) Noise Abatement Measures. The 

following noise abatement measures 

may be considered for incorporation 

into a Type I or Type II project to reduce 

traffic noise impacts. The costs of such 

measures may be included in Federalaid participating project costs with the 

Federal share being the same as that for 

the system on which the project is 

located. 

(1) Construction of noise barriers, 

including acquisition of property rights, 

either within or outside the highway 

right-of-way. Landscaping is not a viable 

noise abatement measure for Federal-aid 

funding; however, landscaping may be 

included into the highway design for 

aesthetic purposes. 

(2) Traffic management measures 

including, but not limited to, traffic 

control devices and signing for 

prohibition of certain vehicle types, 

time-use restrictions for certain vehicle 

types, modified speed limits, and 

exclusive lane designations. 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Proposed Rules 47773 

(3) Alteration of horizontal and 

vertical alignments. 

(4) Acquisition of real property or 

interests therein (predominantly 

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. 

(5) Noise insulation of public use or 

nonprofit institutional structures. 

Maintenance costs for noise 

insulation are not eligible for Federalaid funding. 

(d) Severe Noise Impact: Highway 

agencies shall define a severe noise 

impact. If a severe traffic noise impact 

is expected in the future build 

condition, the highway agency shall 

first determine if the abatement 

measures listed in paragraph (c) provide 

feasible and reasonable exterior noise 

abatement. If this is not achievable, the 

highway agency may consider the 

following options in the order in which 

they appear, and may recommend the 

option to FHWA for approval on a caseby-case basis. 

(1) Exceed the allowable cost of 

abatement for the construction of 

feasible and reasonable exterior noise 

abatement, or 

(2) Consider interior noise insulation 

of privately owned structures. 

Maintenance costs for noise insulation 

are not eligible for Federal-aid funding. 

(e) Abatement Measure Reporting: 

Each highway agency shall maintain an 

inventory of all constructed noise 

abatement measures. The inventory 

shall include such parameters as 

abatement type, location, material, cost, 

noise reduction, and other parameters as 

deemed appropriate by FHWA. The 

FHWA will collect this information, in 

accordance with OMB’s Information 

Collection requirements. 

§ 772.15 Information for local officials. 

(a) To minimize future traffic noise 

impacts on currently undeveloped 

lands, a highway agency shall inform 

local officials within whose jurisdiction 

the highway project is located of: 

(i) Noise compatible planning 

concepts; 

(ii) The best estimation of the 

distances from the edge of the travel 

lane of the highway improvement where 

the future noise levels meet the highway 

agency’s definition of ‘‘approach’’ for 

developed and undeveloped lands or 

properties within the project limits; 

(iii) Information that may be useful to 

local communities to protect future land 

development from becoming 

incompatible with anticipated highway 

noise levels; and 

(iv) Non-eligibility for Federal-aid 

participation for a Type II project as 

described in § 772.11(b). 

(b) A highway agency that chooses to 

use the date of development as one of 

the factors in determining the 

reasonableness of a noise abatement 

measure must have a statewide outreach 

program to inform local officials and the 

public of the items in § 772.15(a)(i)–(iv). 

§ 772.17 Traffic noise prediction. 

(a) Any analysis required by this 

subpart must use the FHWA FHWA 

TNM, which is described in ‘‘FHWA 

Traffic Noise Model’’ Report No. 

FHWA–PD–96–010, including Revision 

No. 1, dated April 14, 2004, or any other 

model determined by the FHWA to be 

consistent with the methodology of the 

FHWA TNM. These publications are 

incorporated by reference in accordance 

with section 552(a) of title 5, U.S.C. and 

part 51 of title 1, CFR, and are on file 

at the National Archives and Record 

Administration (NARA). For 

information on the availability of this 

material at NARA, call (202) 741–6030 

or go to http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. These documents are 

available for copying and inspection at 

the Federal Highway Administration, 

1200 New Jersey Avenue, SE., 

Washington, DC 20590, as provided in 

part 7 of title 49, CFR. These documents 

are also available on the FHWA’s Traffic 

Noise Model Web site at the following 

URL: http://www.fhwa.dot.gov/ 

environment/noise/index.htm. 

(b) In lieu of the requirement in 

section 772.17(a), a highway agency 

may choose to use the FHWA TNM 

Look-up, which is described in ‘‘FHWA 

Traffic Noise Model Version 2.5 Lookup Tables User’s Guide’’ Report No. 

FHWA–HEP–05–008 as a screening tool 

to determine that traffic noise impacts 

do not exist. The FHWA TNM Look-up 

provides a reference of pre-calculated 

FHWA TNM results for simple highway 

geometries and, therefore, has 

limitations associated with it as 

described in Report No. FHWA–HEP– 

05–008. If a highway agency chooses to 

utilize the FHWA TNM Look-up, the 

Federal-aid highway project shall be 

within these limitations: 

(1) The FHWA TNM Look-up shall 

not be used for roadways with more 

than two travel lanes, with total paved 

widths greater than 24 feet including 

shoulders and median, or containing 

intersections. 

(2) The FHWA TNM Look-up results 

shall be evaluated with at least a 5 

dB(A) safety factor, where: 

(i) The output from the FHWA TNM 

Look-up is 5 dB(A) or less from the 

NAC, then the highway agency must 

develop a project model in accordance 

with § 772.17(a). 

(ii) The output from the FHWA TNM 

Look-up is greater than 5 dB(A) from the 

NAC and/or the comparison between 

the existing condition to future build 

conditions is less than the highway 

agency’s definition of substantial noise 

increase, then the highway agency may 

document that there are no impacts 

associated with the project. 

(3) The FHWA TNM Look-up shall 

not be used to determine feasible and 

reasonable noise abatement measures. 

(c) Noise contour lines may be used 

for land use planning but shall not be 

used for determining highway traffic 

noise impacts. 

(d) In predicting noise levels and 

assessing noise impacts, traffic 

characteristics that would yield the 

worst traffic noise impact for the design 

year shall be used. 

§ 772.19 Construction noise. 

For all Type I and II projects, a 

highway agency shall: 

(a) Identify land uses or activities that 

may be affected by noise from 

construction of the project. The 

identification is to be performed during 

the project development studies. 

(b) Determine the measures that are 

needed in the plans and specifications 

to minimize or eliminate adverse 

construction noise impacts to the 

community. This determination shall 

include a weighing of the benefits 

achieved and the overall adverse social, 

economic, and environmental effects 

and costs of the abatement measures. 

(c) Incorporate the needed abatement 

measures in the plans and 

specifications. 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
47774 Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Proposed Rules 

TABLE 1 TO PART 772—NOISE ABATEMENT CRITERIA

[Hourly A-weighted sound level decibels (dBA) 1] 

Activity category 

Activity criteria 2

Evaluation 

location Activity description 

Leq(h) L10(h) 

A ........................ 57 60 Exterior ............. Lands on which serenity and quiet are of extraordinary significance and 

serve an important public need and where the preservation of those 

qualities is essential if the area is to continue to serve its intended 

purpose. 

B ........................ 67 70 Exterior ............. Picnic areas, recreation areas, playgrounds, active sport areas, parks, 

residences, motels, hotels, schools, places of worship, libraries, hospitals, cemeteries, campgrounds, trails, and trail crossings. 

C ....................... 72 75 Exterior ............. Developed lands, properties, or activities not included in Categories A 

or B above. 

D ....................... ........................ ........................ ........................... Undeveloped lands. 

E ........................ 52 55 Interior .............. Residences, motels, hotels, public meeting rooms, schools, places of 

worship, libraries, hospitals, and auditoriums. 

1Either Leq(h) or L10(h) (but not both) may be used on a project. 

2The Leq(h) and L10(h) Activity Criteria values are for impact determination only, and are not design standards for noise abatement measures. 

[FR Doc. E9–22386 Filed 9–16–09; 8:45 am] 

BILLING CODE 4910–22–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[EPA–HQ–OAR–2004–0488; FRL–8956–5] 

Protection of the Stratospheric Ozone: 

Alternatives for the Motor Vehicle Air 

Conditioning Sector Under the 

Significant New Alternatives Policy 

(SNAP) Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Data availability. 

SUMMARY: Under section 612 of the 

Clean Air Act, the Environmental 

Protection Agency (EPA) reviews and 

lists as acceptable alternatives to ozonedepleting substances (ODS). In 2006, 

EPA proposed to list R–744 (CO2) as 

‘‘acceptable with use conditions’’ as a 

substitute for CFC–12 in the motor 

vehicle air conditioning (MVAC) enduse within the refrigeration and airconditioning sector. When using CO2 as 

a refrigerant, MVAC systems would be 

required to use the refrigerant according 

to those legally enforceable conditions. 

EPA proposed use conditions because of 

the potential risk of exposure to 

elevated concentrations of CO2 within 

the passenger compartment if there was 

a leak of the MVAC system. Elevated 

CO2 levels could cause passengers, and 

of particular concern, the driver, to 

become drowsy. Since the time of the 

proposed rule, additional information 

regarding the effects of short-term CO2

exposures has become available and 

EPA is now making that information 

available to the public. As noted in the 

proposed rule, EPA is considering 

whether to establish a breathing zone 

ceiling and this short-term exposure 

information is relevant to EPA’s 

decision on this issue. In addition, EPA 

is providing the public with opportunity 

to respond to an issue raised in a public 

comment on the proposed rule. 

DATES: Comments must be received on 

or before November 16, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2004–0488, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: a-and-r-Docket@epa.gov. 

• Fax: 202–566–1741. 

• Mail: EPA Docket Center (EPA/DC), 

Mailcode 6102T, Attention Docket ID 

No. EPA–HQ–OAR–2004–0488, 1200 

Pennsylvania Avenue, NW., 

Washington, DC 20460. 

• Hand Delivery: Public Reading 

Room, Room 3334, EPA West Building, 

1301 Constitution Avenue, NW., 

Washington, DC. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2004– 

0488. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. This Docket 

Facility is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Air Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Fiffer, Stratospheric Protection 

Division, Office of Atmospheric 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS