[Federal Register Volume 74, Number 179 (Thursday, September 17, 2009)]
[Proposed Rules]
[Pages 47762-47774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22386]


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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.

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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 self-addressed, 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

[[Page 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 High-
Occupancy-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

[[Page 47764]]

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 in-kind 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., owner-occupied, 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 Federal-aid 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

[[Page 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.

[[Page 47766]]

    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 re-analyze 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 Federal-aid 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 cost-averaging practices. This proposed language would 
provide a parameter for

[[Page 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 design-builder 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 Sec.  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

[[Page 47768]]

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/

[[Page 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-the-art 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

[[Page 47770]]

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).


Sec.  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.


Sec.  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.


Sec.  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.

[[Page 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.


Sec.  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.


Sec.  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-by-
case 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.

[[Page 47772]]

    (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 
Sec.  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 
Sec.  772.9 of this part in order to provide information needed to make 
the determination required by Sec.  772.11(a) of this part.


Sec.  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 Sec.  
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.


Sec.  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 Sec.  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 Federal-aid 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.

[[Page 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 
Federal-aid 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 
case-by-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.


Sec.  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 Sec.  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 Sec.  772.15(a)(i)-(iv).


Sec.  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 Look-up 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 Sec.  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.


Sec.  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.

[[Page 47774]]



                                  Table 1 to Part 772--Noise Abatement Criteria
                               [Hourly A-weighted sound level decibels (dBA) \1\]
----------------------------------------------------------------------------------------------------------------
                                 Activity criteria \2\
     Activity category     --------------------------------    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.
----------------------------------------------------------------------------------------------------------------
\1\ Either Leq(h) or L10(h) (but not both) may be used on a project.
\2\ The 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