[Federal Register Volume 89, Number 202 (Friday, October 18, 2024)]
[Proposed Rules]
[Pages 83801-83825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23751]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 89, No. 202 / Friday, October 18, 2024 / 
Proposed Rules

[[Page 83801]]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 772

[Docket No. FHWA-2019-0036]
RIN 2125-AF78


Procedures for Abatement of Highway Traffic Noise and 
Construction Noise

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The FHWA proposes to revise the Federal regulations on the 
Procedures for Abatement of Highway Traffic Noise and Construction 
Noise. The proposed rule would clarify certain definitions, the 
applicability of this rulemaking, certain analysis requirements, and 
the eligibility of funds made available under the Highways title of the 
United States Code (U.S.C.) to provide noise abatement measures and to 
improve the analytical procedures. The FHWA also proposes changes and 
clarifications of factors used to determine the effectiveness of noise 
abatement measures. In addition, the proposed rule would include 
exemptions to Type I projects and allow screening analysis that would 
focus on the projects most likely to cause a traffic noise impact to 
improve efficiency. The proposed rule would make several changes that 
are intended to increase the pool of eligible participants in the noise 
study and mitigation decision processes to ensure everyone receives due 
consideration for impacts and the possibility of receiving abatement on 
a given project.

DATES: Comments must be received on or before December 17, 2024. Late-
filed comments will be considered to the extent practicable.

ADDRESSES: To ensure that you do not duplicate your docket submissions, 
please submit them by only one of the following means:
    <bullet> Federal eRulemaking Portal: Go to www.regulations.gov and 
follow the online instructions for submitting comments.
    <bullet> Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor 
Room W12-140, Washington, DC 20590.
    <bullet> Hand Delivery: West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays. The telephone number is (202) 366-
9329.
    <bullet> Instructions: You must include the agency name and docket 
number or the Regulatory Identification Number (RIN) for the rulemaking 
at the beginning of your comments. All comments received will be posted 
without change to www.regulations.gov, including any personal 
information provided.

FOR FURTHER INFORMATION CONTACT: For technical information: Aileen 
Varela-Margolles, Office of Natural Environment, (305) 978-7780; for 
legal information: Lev Gabrilovich, Office of the Chief Counsel, (202) 
366-3813, Federal Highway Administration, 1200 New Jersey Avenue SE, 
Washington, DC 20590. Office hours are from 8 a.m. to 4:30 p.m., ET 
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Electronic Access and Filing
II. Executive Summary
III. Background
IV. Summary of Key Proposed Changes
    Table: Summary of Key Proposed Changes
V. Section-by-Section Discussion
    Section 772.1 Purpose
    Section 772.3 Definitions
    Section 772.5 Applicability
    Type I Projects
    Project Exemptions
    Type II Projects
    Type III Projects
    State Noise Policy
    Effective Date
    Section 772.7 Traffic Noise Prediction
    TNM Version
    Clarifications
    Noise Screening Process
    Section 772.9 Analysis of Traffic Noise Impacts
    Section 772.11 Analysis of Traffic Noise Abatement
    Engineering Effectiveness
    Acoustic Effectiveness
    Cost Effectiveness
    Consideration of Viewpoints
    Optional Factors
    Date of Public Knowledge
    Section 772.13 Construction Noise
    Section 772.15 Documentation and Reporting
    Section 772.17 Information for Local Officials
    Section 772.19 Federal Participation
    Table 1 to Part 772--Traffic Noise Impact Criteria
VI. Regulatory Analyses and Notices

I. Electronic Access and Filing

    This document and all comments received may be viewed online 
through the Federal eRulemaking portal at www.regulations.gov using the 
docket number listed above. Electronic retrieval help and guidelines 
are available on the website. It is available 24 hours each day, 365 
days each year. An electronic copy of this document may also be 
downloaded by accessing the Office of the Federal Register's website 
at: www.federalregister.gov and the U.S. Government Publishing Office's 
website at: www.GovInfo.gov.
    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 location specified in the 
ADDRESSES section. Comments received after the comment closing date 
will be filed in the docket and considered to the extent practicable. 
In addition to late comments, we will 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. A final rule may be published at any time 
after the close of the comment period and after DOT has had the 
opportunity to review the comments submitted.

II. Executive Summary

    The FHWA proposes to update the Federal Procedures for Abatement of 
Highway Traffic Noise and Construction Noise in 23 CFR part 772 (part 
772) to clarify the responsibilities under the ``applicability'' 
section of this part to various State department of transportation 
(State DOT) and non-State DOT recipients of apportioned or 
discretionary funding, provide additional flexibility for State DOTs, 
improve consistency in the implementation of part 772, increase options 
for abatement that is best suited to a particular project and 
community,

[[Page 83802]]

and create a more equitable process for considering the affected 
public's preference when making noise abatement decisions. The proposed 
rule would make changes to how and when noise impacts are considered, 
the funding mechanisms available for noise abatement, the methods for 
consideration of benefitted receptor's desires, the Date of Public 
Knowledge as currently defined in Sec.  772.5, and recommendations for 
considering construction noise in ways that are intended to increase 
the pool of eligible participants in the noise study and mitigation 
decision processes to promote equitable consideration for impacts and 
the possibility of receiving abatement on a given project. The proposed 
changes would allow all recipients to expedite project delivery while 
maintaining protections for human health and the environment by 
continuing to provide for analyzing, considering, minimizing, and 
mitigating noise impacts.
    The FHWA proposes to reorganize part 772 to improve its clarity in 
response to stakeholder feedback on the existing regulation. The 
proposed changes fall into three categories: (1) those that are 
intended to better balance the needs of receptors (noise-sensitive 
lands and buildings) adjacent to the project with the needs of 
recipients; (2) those that are intended to improve the compliance 
process and focus work effort on projects that are likely to alter the 
existing noise environment; and (3) those that will allow for the 
timely adoption of new technology in noise analyses.
    The proposed rule includes several key changes that have the 
potential to alter how recipients conduct noise analyses and how the 
public receives consideration for noise abatement. The FHWA is 
proposing to redefine how projects are categorized, what areas of and 
around a project must be considered for noise analysis, adding 
exemptions to Type I projects, and allowing project-level screening. 
This would allow recipients to focus analysis and mitigation efforts on 
projects and areas that have, or are likely to have, noise impacts. 
When projects must undergo noise analyses, FHWA is proposing to update 
the method for adopting new versions of the Traffic Noise Model. In 
considering traffic noise impacts, the proposed rule would include 
changes to the levels that are considered an impact. When impacts are 
identified and abatement must be considered, FHWA is proposing to 
improve the process for considering abatement by consolidating 
requirements; allowing for the use of innovative mitigation measures; 
allowing for the consideration of non-acoustical benefits of 
mitigation; seeking comment on third-party funding options; updating 
how property owners' and residents' viewpoints are solicited, counted, 
and considered; defaulting to replacing existing mitigation in-kind; 
and including provisions for reestablishing a Date of Public Knowledge. 
These proposed changes would increase community opportunities to 
participate in decisionmaking and potentially to obtain noise 
mitigation for impacts. The proposed rule also includes some updates to 
the consideration of construction noise when such noise is present at a 
single location for a long time. Finally, FHWA is proposing to allow 
additional flexibility for all effective abatement measures to be 
eligible for Federal participation. The FHWA requests comments on the 
proposed changes.

                                                            Key Proposed Changes to Part 772
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              Topic area                    Description of proposed change         Existing regulatory section(s)       Proposed regulatory section(s)
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Reorganization.......................  Reorganizing the existing regulation to  All sections, except Sec.   772.17.  All sections, except Sec.   772.17.
                                        better match the project development
                                        process from beginning to end.
Applicability and responsibilities...  Clarifying what parts of this            All sections, except Sec.   772.1..  All sections, except Sec.   772.1.
                                        rulemaking apply only to State DOTs
                                        and which parts apply to all
                                        recipients receiving FHWA funding and/
                                        or approvals for a project.
Project Types........................  Better aligning work effort to likely    Sec.   772.5, Sec.   772.7.........  Sec.   772.3, Sec.   772.5, Sec.
                                        results (e.g., focusing noise analysis                                        772.7.
                                        on projects likely to have noise
                                        impacts) by:.
                                       <bullet> Introducing exempt projects...
                                       <bullet> Introducing screenings to
                                        determine likelihood of impacts.
                                       <bullet> Updating what constitutes the
                                        analysis area.
Traffic noise prediction.............  Including legacy periods and grace       Sec.   772.9.......................  Sec.   772.7.
                                        periods, and providing for use of
                                        updated versions of the Traffic Noise
                                        Model (TNM) via Federal Register
                                        notice.
Consideration of adjacent receptors..  Establishing criteria and processes for  Sec.   772.5, Sec.   772.13........  Sec.   772.9, Sec.   772.11.
                                        resetting the Date of Public Knowledge
                                        and reanalyzing a project area for new
                                        receptors. Establishing a default
                                        wherein public viewpoints are weighed
                                        equally and are the final decision
                                        point regarding State DOT-proposed
                                        mitigation measures.
Traffic noise impacts................  Updating the criteria for a noise        Sec.   772.5, Sec.   772.11, Table   Sec.   772.3, Sec.   772.9, Table
                                        impact to balance research and           1--Noise Abatement Criteria.         1--Noise Impact Criteria.
                                        commonly used State criteria.
Analysis of traffic noise abatement..  Consolidating the analysis of            Sec.   772.13......................  Sec.   772.11.
                                        feasibility and reasonableness of
                                        abatement measures, and replacing
                                        these terms with effective noise
                                        abatement or effectiveness.
                                        Establishing a default decision of in-
                                        kind replacement of noise mitigation
                                        that is impacted by a project. Clarify
                                        the process and allow for equitable
                                        allocation of resources and benefits.
Consideration of other abatement       Updating Federal participation to allow  Sec.   772.13, Sec.   772.15.......  Sec.   772.11, Sec.   772.19.
 measures.                              funding noise abatement measures that
                                        are effective and consistent with
                                        FHWA's national policy for
                                        environmental mitigation in 23 CFR
                                        771.105(e) and allow more flexibility
                                        in abatement options. Proposing three
                                        options for third-party prohibitions,
                                        restrictions, or allowance thereof.
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III. Background

Legal Authority

    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 part 772 regulation applies to a highway or multimodal construction 
project that requires FHWA approval regardless of funding sources, or 
is funded with Federal-aid highway funds. See 23 CFR 772.7(a). The 
regulation requires a recipient to investigate traffic noise impacts in 
areas adjacent to a federally-funded or approved project for the 
construction of a highway on a new location or a significant change to 
an

[[Page 83803]]

existing highway. If the recipient identifies noise related impacts, it 
must consider noise abatement. See 23 CFR 772.11 and 772.13. The 
recipient must incorporate all feasible and reasonable noise abatement 
into the project design. See 23 CFR 772.13(h). The FHWA last updated 
the noise regulation in 2010, with an effective date of July 13, 2011 
(75 FR 39820, July 13, 2010).

Statement of the Problem

    The FHWA has received ongoing feedback from State DOTs, other 
transportation stakeholders and practitioners, and the public related 
to the implementation of the noise regulation since 2011. The feedback 
includes comments suggesting that some requirements in the existing 
regulation are ambiguous and unclear while others are too prescriptive. 
The existing regulations also allow for different interpretations of 
some requirements. As a result, noise impact and abatement decisions 
can vary significantly from State to State. Interpretations of some 
requirements can also result in inequitable outcomes regarding the 
construction or provision of noise abatement in communities. One 
example of documented feedback is a report sponsored by FHWA and the 
American Association of State Highway and Transportation Officials 
(AASHTO) summarizing findings from a Traffic Noise Practitioners Summit 
held in October 2015.\1\ Another example is a listening session 
sponsored by FHWA and AASHTO in March 2019; comments from the listening 
session are summarized and posted in the docket for this rulemaking.
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    \1\ AASHTO Center for Environmental Excellence, Traffic Noise 
Practitioners Summit White Paper, and Noise Roadmap (February 22, 
2016), available at: https://environment.transportation.org/past-event/2015-traffic-noise-practitioners-summit/.
---------------------------------------------------------------------------

    The proposed changes are intended to address stakeholder concerns 
with the existing regulation and would strike a balance between 
retaining flexibility for States while improving consistency and 
equitable implementation of the regulation for the public. The FHWA has 
identified several areas where the existing regulation could be 
improved to better serve the public. For example, FHWA proposes to 
offer additional flexibilities on the type of non-barrier mitigation 
measures allowed. Proposed improvements would better balance the 
recipient's flexibilities in addressing highway noise issues and 
continue to protect noise sensitive receptors, such as homes and 
schools, near projects. For more information see the Section-by-Section 
discussion below.
    The proposed rule would support FHWA's goals and objectives of 
encouraging infrastructure investment while protecting the environment. 
The proposed rule also would advance the policy goals of three 
Executive orders (E.O.). Section 1 of E.O. 13990 on Protecting Public 
Health and the Environment and Restoring Science to Tackle the Climate 
Crisis (86 FR 7037, Jan. 25, 2021) states the Administration's policy 
of listening to the science and improving public health and protecting 
the environment. The proposed rule, which is informed by scenario 
modeling and statistical data analysis, would help to protect the 
public from the introduction of new unhealthy levels of noise and would 
provide for the use of data and science to analyze existing conditions 
and make determinations on noise impacts and abatement. The E.O. 14008 
on Tackling the Climate Crisis at Home and Abroad (86 FR 7619, Feb. 1, 
2021) reiterates the importance of protecting public health and 
delivering environmental justice. The proposed rule, when applied to 
individual projects, would have the potential to lead to noise analysis 
and noise abatement measures that could promote environmental justice 
by protecting human health through the provision of noise mitigation 
and spurring economic opportunity through mobility. In the same manner, 
the proposed rule would carry out E.O. 13985 on Advancing Racial Equity 
and Support for Underserved Communities Through the Federal Government 
(86 FR 7009, January 25, 2021), as amended by E.O. 14091 on Further 
Advancing Racial Equity and Support for Underserved Communities Through 
The Federal Government (88 FR 10825, February 16, 2023), by introducing 
new ways for recipients to consider impacts and mitigation in a way 
that best fits a given community. See the IV. Summary of Key Proposed 
Changes and V. Section-by-Section Discussion below.
    The overarching goal of the proposed changes is to develop a clear 
and concise regulation that satisfies statutory requirements, improves 
the analytical process and subsequent decisionmaking, and continues to 
help protect the public's health, welfare, and livability. The FHWA 
proposes updates to all sections of the existing regulation. The FHWA 
is soliciting comments on all of the proposed changes, and expressly 
seeks comment on specific provisions below. Additional information on 
these proposed changes follows in IV. Summary of Key Proposed Changes. 
More details on these and other changes can be found in V. Section-by-
Section Discussion of this NPRM.

IV. Summary of Key Proposed Changes

    The FHWA proposes to reorganize the sections of the existing 
regulation to better match the workflow of a noise analysis during the 
project development process from beginning to end. The Derivation Table 
lists the proposed section numbers and names next to the existing 
section numbers.

       Derivation Table To Compare Proposed and Existing Part 772
------------------------------------------------------------------------
          Proposed section(s)                  Existing section(s)
------------------------------------------------------------------------
Sec.   772.1 Purpose...................  Sec.  Sec.   772.1 and 772.3.
Sec.   772.3 Definitions...............  Sec.   772.5.
Sec.   772.5 Applicability.............  Sec.   772.7.
Sec.   772.7 Traffic Noise Prediction..  Sec.   772.9.
Sec.   772.9 Analysis of Traffic Noise   Sec.   772.11.
 Impacts.
Sec.   772.11 Analysis of Traffic Noise  Sec.   772.13.
 Abatement.
Sec.   772.13 Construction Noise.......  Sec.   772.19.
Sec.   772.15 Documentation and          Sec.  Sec.   772.13, 772.11,
 Reporting.                               and 772.19.
Sec.   772.17 Information for Local      Sec.   772.17.
 Officials.
Sec.   772.19 Federal Participation....  Sec.   772.15.
------------------------------------------------------------------------

    The FHWA proposes to substitute the term ``State DOT'' for 
``highway agency'' in certain sections of part 772 to reflect current 
usage and clarify what actions are the exclusive responsibility of a 
State DOT rather than the responsibility

[[Page 83804]]

of other non-State DOT recipients of FHWA funds or approvals. The term 
``recipient'' is newly added to part 772 when the section's 
requirements and responsibilities belong to any entity with a project 
that is subject to this part. The term recipient is inclusive of State 
DOTs, unless otherwise denoted by ``non-State DOT recipient''.
    The FHWA is proposing 10 key changes to this regulation, as 
summarized in the table below, Summary of Key Proposed Changes. Details 
on the reorganization of content and proposed changes within individual 
sections are described in the V. Section-by-Section Discussion.

                                         Summary of Key Proposed Changes
----------------------------------------------------------------------------------------------------------------
 Section (as proposed) and topic               Proposed change                       Purpose of change
----------------------------------------------------------------------------------------------------------------
                                   What are we proposing to change it to/
 What we are proposing to change?             replace it with?              Why are we proposing to change this?
----------------------------------------------------------------------------------------------------------------
Project area requiring analysis--  We propose to use the project area      To focus analysis and work effort on
 Noise analysis area.               where design year traffic may           areas most likely to be affected by
Sec.   772.3 Definitions.........   contribute to noise impacts from the    the project based on traffic changes
Sec.   772.5 Applicability.......   project.                                and construction work, and to ensure
Sec.   772.9 Analysis of traffic                                            full consideration of community
 noise impacts.                                                             impacts.
Type I project definitions and     These proposed changes would: (1)       To introduce additional flexibility
 required analyses.                 identify Type I projects that could     to improve the analytical process by
Sec.   772.5 Applicability.......   be exempt from noise analysis because   better aligning the analysis effort
Sec.   772.7 Traffic Noise          these projects are expected to have     to the likelihood of potential
 Prediction.                        minimal or no noise impacts; and (2)    impacts and successful construction
                                    allow project screenings to determine   of abatement, while still providing
                                    whether impacts are likely before a     the necessary information to the
                                    full analysis with field measurements   public regarding project impacts as
                                    and modeling is undertaken.             part of FHWA National Environmental
                                                                            Policy Act (NEPA) process.
Definitions of impacts...........  We propose to change the definitions    To better align the definitions of
Sec.   772.3 Definitions.........   of substantial changes in noise         substantial decrease and substantial
Sec.   772.9 Analysis of Traffic    levels by: changing substantial         increase to be the same range of
 Noise Impacts.                     decrease as contained in the acoustic   values which is a more logical
Sec.   772.11 Analysis of Traffic   effectiveness criterion to be at        approach and will also result in
 Noise Abatement.                   least 5 dB(A) but not more than 10      additional communities being
Table 1 Noise Impact Criteria....   dB(A); and changing the substantial     considered for mitigation compared
                                    increase criterion, by capping the      to the current rule. To update the
                                    maximum allowable increase, beyond      impact values in table 1 in order to
                                    which an impact will occur, at 10       remove the requirement for State
                                    dB(A) and maintaining the current       DOTs to select an approach criteria.
                                    floor value of 5 dB(A), below which a
                                    noise impact because of a substantial
                                    increase does not occur. We also
                                    propose to remove the requirement to
                                    set an approach level of at least 1
                                    dB(A), and incorporate it into table
                                    1 by reducing the Noise Impact
                                    Criteria by 1 dB(A) for all Activity
                                    Categories. For all criteria, State
                                    DOTs would continue to have the
                                    option to define more stringent
                                    (lower) values.
TNM software updates and releases  We propose to provide for usage of      To ensure a smooth transition to
Sec.   772.7 Traffic Noise          legacy data from ongoing projects and   future updates of FHWA's TNM and to
 Prediction.                        grace periods for beginning to use      provide certainty to State DOTs and
                                    new releases of TNM in noise            noise analysis practitioners on when
                                    analyses.                               the new model should be used for
                                                                            noise analyses.
Date of Public Knowledge.........  We propose to provide circumstances     To ensure that the public obtains
Sec.   772.9 Analysis of Traffic    under which the Date of Public          full consideration for potential
 Noise Impacts.                     Knowledge must be reset.                impacts and abatement in cases where
Sec.   772.11 Analysis of Traffic                                           project design changes will alter
 Noise Abatement.                                                           the noise environment from what was
                                                                            previously analyzed in NEPA; and to
                                                                            ensure that the public is considered
                                                                            for impacts and abatement in cases
                                                                            where projects do not proceed in a
                                                                            timely manner after the completion
                                                                            of NEPA. This change consistent with
                                                                            NEPA reevaluation policies.
Mitigation Options...............  We propose to allow for any effective   To expand options for State DOTs to
Sec.   772.9 Analysis of Traffic    mitigation measures, or combination     consider more cost- and acoustically-
 Noise Impacts.                     measures, to be eligible for Federal-   effective mitigation options such
Sec.   772.11 Analysis of Traffic   aid funding provided they meet the      that mitigation is provided more
 Noise Abatement.                   requirements established in this        often, is more effective at reducing
                                    rulemaking and in the given State DOT   noise, can enhance the environment,
                                    Noise Policy. We propose to include     and can do so using the limited
                                    an additional optional effectiveness    available funding.
                                    factor, to allow for noise mitigation
                                    that also provides other
                                    environmental and social benefits.
Analysis process.................  We propose to combine ``feasibility''   To consolidate and clarify the
Sec.   772.11 Analysis of Traffic   and ``reasonableness'' determinations   traffic noise abatement analysis
 Noise Abatement.                   using the term ``effectiveness.'' We    process so that it is easier to
                                    propose to establish that existing      understand for the public; and to
                                    noise barriers that are disturbed by    maintain existing mitigation that
                                    a new project can be eligible for       benefits a community.
                                    Federal-aid funds for in-kind or
                                    improved replacement without
                                    necessitating additional analyses.
Public Involvement...............  We propose to consider renters and      To increase the public's awareness of
Sec.   772.11 Analysis of Traffic   owners as having equal votes during     and influence on final mitigation
 Noise Abatement: Consideration     mitigation decisionmaking; to make      decisions.
 of Viewpoints.                     mitigation decisions based on a
                                    simple majority of returned ballots;
                                    and to limit the use of a minimum
                                    response rate requirement by State
                                    DOTs.
Third Party Funding..............  We propose three options to consider    To ensure equitable allocation of
Sec.   772.11 Analysis of Traffic   third party funding. Proposed option    resources and benefits and financial
 Noise Abatement.                   three would remove the prohibition on   prudence for cost effective
                                    complete funding of noise abatement     abatement measures.
                                    by a third party while retaining the
                                    ban on partial funding.

[[Page 83805]]

 
Quantitative Analysis of           We propose to include a new section     To ensure the public receives proper
 Construction Noise.                stating that State DOTs should          consideration for construction noise
Sec.   772.19 Construction Noise.   conduct quantitative construction       mitigation measures.
                                    noise analyses in cases where the
                                    public has expressed concern about
                                    the issue, or where the State DOT
                                    believes that construction noise is
                                    likely to impact the quality of life
                                    of nearby residents.
----------------------------------------------------------------------------------------------------------------

    The FHWA also proposes to clarify the timeline for implementation 
of the final rule, including preparation and use of State DOT noise 
policies. The FHWA anticipates the effective date will be 30 days after 
publication of the final rule, consistent with the Administrative 
Procedure Act. 5 U.S.C. 553(d). To implement the final rule, FHWA 
proposes that a State DOT would be required to develop its noise policy 
in accordance with the final rule and submit its proposed policy to 
FHWA, or self-certify its approval of its policy, within 6 months 
following the effective date of the final rule. The State DOT would be 
required to implement the new noise policy within 12 months of the 
effective date of the final rule and apply the policy uniformly and 
consistently statewide. Recipients within the State would follow and 
implement their respective State DOT's noise policy on the same 
schedule as the State DOT. This would allow sufficient time for States 
to develop, finalize, and publish their policies.
    The FHWA is proposing that States adopt new noise policy within 6 
months and implement within 12 months of a final rule. The FHWA 
encourages States to implement the many improvements in the final rule 
by incorporating them in a new noise policy as expeditiously as 
practicable. A State's failure to revise a noise policy in accordance 
with the final rule could prevent FHWA Division Office from reviewing 
proposed projects in the State for noise impacts and to implement 
abatement measures to mitigate impacts in a timely manner. If a State 
does not revise its noise policy, the FHWA Division Office would be 
unable to determine whether a project's noise analysis complies with 
the final rule. Since all environmental commitments for effective noise 
abatement must be included in the plans, specifications and estimates 
before FHWA releases a project for construction, a State's failure to 
implement a revised noise policy within 12 months could result in a 
delay in FHWA's approval of highway projects within the State.
    Projects for which traffic noise prediction activities are 
initiated 12 months after the effective date of the final rule, or 
initiated after approval of the State's noise policy, whichever occurs 
first, would need to be developed in accordance with this part. The 
recipients of Federal funding may also choose to apply this regulation 
to any project at any stage after approval of the State's noise policy.
    Commenters are encouraged to comment on the feasibility of this 
timeline and the proposed approaches to the noise policy development 
and approval process described in V. Section-by-Section Discussion 
under Sec.  772.5 Applicability.

V. Section-by-Section Discussion

    The following paragraphs describe the proposed changes within each 
section of the regulation as proposed to be reorganized. We also 
explain where we are proposing to combine existing sections.

Section 772.1 Purpose

    The FHWA proposes to reorganize the existing regulation to better 
match the workflow of a noise analysis during the project development 
process from beginning to end. The proposed reorganization includes 
consolidating the existing Sec.  772.1 Purpose and Sec.  772.3 Noise 
Standards sections into a single Sec.  772.1 Purpose section. By 
consolidating these sections, proposed Sec.  772.1(a) would describe 
the purpose of providing noise standards and would remove repetitive 
information that is found in proposed Sec.  772.1(b) regarding what 
constitutes noise standards.
    The proposed changes also would include three clarifications of 
existing requirements in Sec. Sec.  772.1 and 772.3. The first would 
clarify that this rulemaking applies to both highway traffic noise and 
construction noise by replacing the phrase ``procedures for noise 
studies and noise abatement measures'' with ``highway traffic and 
construction noise standards'' in proposed Sec.  772.1(a). The second 
would clarify that this rulemaking provides both ``noise impact and 
abatement criteria'' by adding the words ``impact and'' in Sec.  
772.1(b). The final change would correct the reference to 23 U.S.C. 
109(i) in existing Sec.  772.3.

Section 772.3 Definitions

    Renumbered Sec.  772.3, as proposed, would add, revise, combine, 
and remove several definitions. For the reasons discussed below, FHWA 
proposes to add new definitions for the following eight terms: Cost 
average; Exempt project; Noise analysis area; Noise Impact Criteria; 
Noise policy; Receiver; Recipient; and State DOT. The FHWA proposes to 
rename Noise reduction design goal to Noise reduction requirement and 
revise the definition. The FHWA also proposes to revise the following 
terms in the existing regulation: Benefited receptor; Impacted 
receptor; Permitted; Receptor; Statement of likelihood; Substantial 
noise increase; Traffic noise impacts; Type I project; Type II project; 
and Type III project. The FHWA proposes to combine the terms 
Multifamily dwelling and Residence into the single term Residence. 
Finally, FHWA proposes to remove the terms Date of public knowledge; 
Feasibility; L<INF>10</INF>; Reasonableness; and Substantial 
construction. These changes would provide clarity and make these 
definitions easier to understand or in line with the state of practice. 
Some of these changes (e.g., benefitted receptor, impacted receptor, 
and noise reduction requirement) would allow State DOTs more 
flexibility to mitigate noise impacts in a community and in a context 
sensitive manner. We discuss the proposed changes in alphabetical order 
consistent with the regulation. We do not discuss existing definitions 
that would remain unchanged.
    Benefitted receptor. The FHWA proposes to simplify this definition. 
Under the existing rule, a benefitted receptor is a receptor with a 
``noise reduction at or above the minimum threshold of 5 dB(A), but not 
to exceed the highway agency's reasonableness design goal.'' Under this 
proposed rule, a benefitted receptor would include any receptor that 
achieves the noise reduction requirement criterion as defined by a 
State DOT. Thus, this

[[Page 83806]]

definition would align with the noise reduction requirement rather than 
have multiple criteria. A defined threshold that is consistently 
applied would support fairness in decisionmaking and more equitable 
outcomes.
    Cost average. Existing Sec.  772.13(k) allows a State DOT, on Type 
I or Type II projects, the option to cost average noise abatement among 
benefitted receptors within a project, if certain criteria are met. 
State DOTs are familiar with this concept in noise abatement, and FHWA 
proposes to add the definition to Sec.  772.3 to facilitate 
implementation by recipients.
    Date of public knowledge. The FHWA is proposing to remove this 
definition, as it is described and used entirely in proposed Sec.  
772.11 Analysis of traffic noise abatement.
    Exempt project. The FHWA proposes to add this new definition for 
Type I projects that are not expected to have noise impacts and are 
thus exempt from noise analysis and consideration of abatement under 
proposed Sec.  772.5(c).
    Feasibility. The FHWA is proposing to remove this term and 
definition from the rule. The concepts and criteria that are under 
feasibility in the existing regulation would be covered under the 
consideration of effective noise abatement described in proposed Sec.  
772.11(e).
    Impacted receptor. The FHWA proposes to modify this definition for 
clarity, by replacing ``[t]he recipient'' with ``[a] receptor'' that 
has a traffic noise impact.
    L10. The FHWA proposes to remove this definition and noise metric 
to reflect existing practice. All State DOTs now use the L<INF>EQ</INF> 
noise metric.
    Multifamily dwelling. The FHWA proposes to remove this definition 
by combining it with the more general term Residence. The descriptions 
in both of these terms are repetitive and can be covered by the more 
general of the two. The regulatory provision in the existing definition 
of multifamily dwelling, requiring that each residence in a multifamily 
structure be counted as one receptor when determining impacted and 
benefitted receptors, was moved to proposed Sec.  772.7(d).
    Noise analysis area. The FHWA proposes to add this new definition 
to identify the areas within or beyond the project limits that may have 
noise impacts. This would allow project sponsors to focus analysis on 
the areas that may have noise impacts. Currently, if a project is 
determined to be a Type I project, then the entire project area as 
defined in the environmental document is required to be analyzed, per 
paragraph (8) under the definition of Type I project in existing Sec.  
772.5. The proposed approach to determining the noise analysis area 
would provide flexibility and avoid establishing a distance for study 
based on other factors that may not be appropriate for noise analyses. 
Use of TNM is the recommended method for determining the extent of 
impacts from a specific highway. Impacts may be contained within the 
project area, but may also extend beyond the project limits. The FHWA 
is seeking comments on the new definition of noise analysis area from 
the entire project to the areas that are most likely to have a noise 
impact from the roadway.
    Noise Impact Criteria. The FHWA proposes to add this definition to 
reflect the proposed change of the title of table 1 from ``Noise 
Abatement Criteria'' to ``Noise Impact Criteria.'' The term Noise 
Impact Criteria, proposed to mean the values in table 1 or lower (more 
stringent) values as specified in a State noise policy, would better 
reflect that the sound levels in the table are the levels at which 
noise impacts are considered to occur. Analysis of abatement would 
occur after the identification of traffic noise impacts. This approach 
was made clear in footnote 2 to Table 1 in the current regulation.
    Noise policy. The FHWA proposes to add this new definition to 
clarify what constitutes a State noise policy. A State may title its 
noise policy by other names, but this definition and the associated 
regulatory text would aid State DOTs in fulfilling the requirements.
    Noise reduction requirement. The FHWA proposes to rename the 
existing term Noise Reduction Design Goal to the more accurate Noise 
Reduction Requirement, to reflect existing practice. The FHWA also 
proposes to align the noise reduction requirement with the acoustic 
effectiveness standard in Sec.  772.11(e). Under the current rule, 
highway agencies analyze feasibility by achieving at least a 5 dB(A) 
highway traffic noise reduction at impacted receptors, then analyze 
which receptors are considered benefitted, and then finally analyze how 
many benefitted receptors achieve the reasonableness acoustic criterion 
(`noise reduction design goal') of at least 7 dB(A). To clarify the 
standard, FHWA proposes that the acoustic feasibility, benefitted 
receptor, and noise reduction design goal be consolidated into a single 
`effectiveness' criterion for acoustics entitled the `noise reduction 
requirement.' This value would be at least 5 dB(A) but not more than 10 
dB(A) at the given number of receptors as defined in a State noise 
policy. In addition, FHWA proposes to add the flexibility of allowing a 
combination of abatement measures to achieve the specified noise 
reduction rather than a single measure. Accordingly, as proposed, the 
Noise reduction requirement would mean any measure, or combination of 
measures, that mitigates noise impacts to receptors by reducing design 
year noise levels by 5 to 10 dB(A) as defined in a State noise policy.
    Permitted. The FHWA proposes to revise this definition such that a 
definite commitment to develop land can be evidenced not only by the 
issuance of a building permit, but also by the equivalent. This would 
address situations for which a building permit is not applicable to 
that type of development. For example, projects in government 
jurisdictions that do not use building permits for certain types of 
developments, such as mobile homes, would be considered for impacts and 
abatement, as long as the jurisdiction can prove a commitment. This 
proposed change reflects common practice and addresses a gap in the 
existing rule.
    Reasonableness. The FHWA is proposing to remove this term and 
definition from part 772. The concepts and criteria that are under 
reasonableness in the existing regulation would be covered under the 
consideration of effective noise abatement described in Sec.  
772.11(e).
    Receiver. The FHWA proposes to add this new definition to clarify 
that this term refers to a modeling object inside TNM. The proposed 
definition also would clarify that a modeled receiver can represent one 
or more real-world receptors, provided that they share a common noise 
environment.
    Receptor. The FHWA proposes to modify this definition to mean a 
real-world location only. The concept of ``representative'' locations 
in a noise model is described in the definition of the term Receiver. 
Receptors are modeled using the Receiver input object in TNM.
    Recipient. The FHWA proposes to add this new definition to clarify 
requirements and responsibilities belong to any entity with a project 
that is subject to this part. A recipient means an entity that receives 
a Federal award directly or via a pass-through entity from FHWA. The 
project can be funded with apportioned or discretionary funding, or 
subject to an FHWA approval action. A recipient can be a State, 
regional, county, or local government or other project sponsor such as 
a grant recipient undertaking a highway project. For the purposes of 23

[[Page 83807]]

CFR part 772, recipients do not include federally recognized Tribes.
    Residence. The FHWA proposes to combine this definition with the 
current definition of Multifamily dwelling, as previously discussed.
    State department of transportation. The FHWA proposes to add this 
new definition to clarify what actions are the exclusive responsibility 
of a State DOT rather than the responsibility of other non-State DOT 
recipients.
    Statement of likelihood. The FHWA proposes to replace the phrase 
``feasibility and reasonableness analysis'' in the definition with 
``impact and abatement analysis'' to reflect the replacement of the 
feasibility and reasonableness concepts with the proposed effective 
noise abatement criteria described in Sec.  772.11(e).
    Substantial construction. The FHWA proposes to remove this 
definition, as it is described entirely in Sec.  772.13.
    Substantial noise increase. The FHWA proposes to change the 
definition of substantial noise increase from a level between 5 and 15 
dB(A) to between 5 and 10 dB(A) in the design year over the existing 
noise level as defined in a State noise policy. The FHWA believes that 
setting the substantial increase to between 5 and 10 dB(A) would 
provide clarity for what constitutes a ``substantial increase'' in 
noise level. A 10 dB(A) increase is perceived as a doubling in 
loudness, and will have a noticeable impact on people living, working, 
or playing in the near-road environment. Noise increases above 10 dB(A) 
are rare and infrequent. For example, a 10 dB(A) noise increase can be 
caused by 10-fold increase in traffic volume. An increase of 15 dB(A) 
can be caused by 31-fold increase in traffic volume, based on the 
logarithmic scale of the decibel unit of measurement. These changes 
consider what is mathematically defensible and understandable to the 
public; what is recommended by research conducted into the health-
impacts and speech interference from noise; and what is an achievable 
reduction using current technology. The FHWA proposes to retain the 
flexibility for a State DOT to choose the criteria in its noise policy 
within the given range. This proposed change in definition also would 
be better aligned with the proposed noise reduction requirement of 5 to 
10 dB(A), discussed in Sec.  772.11. The FHWA is seeking comments on 
the proposed change to substantial noise increase.
    Traffic noise impacts. The FHWA proposes to revise this definition 
to incorporate proposed changes in the regulation, specifically the 
title change of table 1 to part 772 from Noise Abatement Criteria to 
Noise Impact Criteria, and to remove the term and concept of an 
``approach'' level, the value of which is incorporated directly into 
table 1. States would retain the option to define a lower impact 
criteria than the values in table 1. The proposed definition otherwise 
would remain the same, in that it would describe that there are two 
ways in which a traffic noise impact may occur--either when design year 
build condition noise levels: (1) meet or exceed the criteria listed in 
table 1; or (2) create a substantial noise increase over existing 
levels.
    Type I project. The FHWA proposes to simplify the definition of 
Type I project and move the specific examples to Sec.  772.5.
    Type II project. The FHWA proposes to revise the existing 
definition by adding a clause to clarify for the public that a Type II 
project is a retrofit noise abatement project on an existing highway in 
the absence of an associated highway project.
    Type III project. The FHWA proposes to revise the existing 
definition by adding a sentence to clarify that a Type III project is 
not likely to change the noise environment.
    The FHWA is not proposing any changes to the following existing 
definitions: Common noise environment, Design year, Existing noise 
levels, Impacted receptor, L<INF>EQ,</INF> Noise barrier, and Property 
owner.

Section 772.5 Applicability

    This section is proposed to be renumbered and revised to include 
the detailed descriptions of Project Types that are found in the 
existing Definitions section, introduce the new concept of exempt 
projects, and describe the State DOT noise policies and minimum 
criteria for inclusion in such policies.
    The FHWA proposes to clarify in renumbered Sec.  772.5(a)(1) that 
the proposed rule applies to any highway project or multimodal project 
that requires FHWA approval, regardless of funding sources, or that is 
funded with Federal-aid highway funds.
Type I Projects
    The FHWA proposes to move the list of example projects that are 
currently found in the Definitions section to renumbered Sec.  772.5. 
The FHWA proposes in Sec.  772.5(b) to organize the list of Type I 
projects into four broad categories that would cover all of the project 
types under the existing definition of the term ``Type I project'': (1) 
construction of a roadway on a new location; (2) substantial physical 
alteration of an existing highway; (3) a substantial change in the 
operations of an existing highway when those changes are because of the 
proposed highway project; and (4) other projects which may cause a 
traffic noise impact during regular operation. The list of Type I 
projects in proposed Sec.  772.5(b) would not be exclusive.
    Proposed Sec.  772.5(b)(3) would explicitly describe a substantial 
change in operations for clarity, where it is currently implied by the 
example project types listed as being primarily work on an existing 
alignment. These projects include restriping existing pavement to add 
an auxiliary lane or through traffic lane, including for a high 
occupancy vehicle (HOV) lane, high occupancy toll (HOT) lane, bus lane, 
or truck climbing lane; and the addition of a new or a substantial 
alteration of a weigh station, rest area, ride-share lot, or toll 
plaza. The FHWA proposes to move ``except for when the auxiliary lane 
is a turn lane'' from paragraph (4) of the existing definition of a 
``Type I project'' to the proposed project exemptions in proposed Sec.  
772.5(c)(1) for clarity. In proposed Sec.  772.5(b)(3)(v), FHWA would 
add an explanation to describe ``substantial alteration'' from existing 
Analysis and Abatement Guidance (2011) \2\ and to account for the 
projects that are eligible for assistance under title 23, including 
projects funded by discretionary grants under title 23 or administered 
as if Federal-aid projects under chapter 1 of title 23.
---------------------------------------------------------------------------

    \2\ FHWA, ``Analysis and Abatement Guidance'' (FHWA-HEP-10-025) 
(June 2010; revised December 2010), available at: https://www.fhwa.dot.gov/environment/noise/regulations_and_guidance/analysis_and_abatement_guidance/.
---------------------------------------------------------------------------

    In addition, projects proposing to use apportioned funding or 
discretionary grants under title 23, or projects that are administered 
as if they are Federal-aid projects under chapter 1 of title 23, to 
build noise abatement on existing roadways, should be subject to the 
same requirements of a Type I projects because the acoustic performance 
of the noise abatement measure can only be predicted and analyzed by 
performing a noise analysis. Such projects would include changing the 
pavement surface or building noise barriers in the roadway right-of-
way.
    Projects proposing to use Federal-aid funds to build independent 
noise abatement on existing roadways are Type II projects and can only 
obtain the FHWA funding and approval by being part of an approved Type 
II program priority list. On the other hand, projects proposing to use 
discretionary grant funding to build independent noise abatement on 
existing roadways must follow the eligibility requirements of the

[[Page 83808]]

given grant program and are not necessarily Type II projects.
    New Sec.  772.5(b)(4) would add ``other projects which may cause a 
traffic noise impact during regular operation'' to the list of Type I 
projects. Generally, if a project results in a new noise source, the 
State DOT should consider a noise analysis for the project. The 
proposed rule would not preclude a State DOT from performing a noise 
analysis for a project that does not strictly meet the Type I or Type 
II criteria, but may result in a new noise source.
Project Exemptions
    The FHWA proposes in new Sec.  772.5(c) to introduce a new ``exempt 
project'' category. The exempt projects would be those projects that 
would otherwise be considered as Type I based on their scope of work 
but are not likely to change the noise environment. Projects unlikely 
to change the noise environment would not require analysis of traffic 
noise impacts or abatement as in the case of Type III projects. 
Proposed project exemptions include clarifications of project 
parameters that currently are described in guidance.
    The table below lists proposed Type I projects that could be 
exempt, with references to the proposed regulation. The FHWA conducted 
research and modeling analysis to support the proposed exemptions. The 
research report, titled ``23 CFR 772 NPRM Analysis: Analysis to Support 
Potential Type I Exempt Projects,'' is available for review in the 
docket.
    The FHWA seeks comments on whether to include exemptions in this 
regulation for assessment of noise impacts, on the exempt projects in 
proposed Sec.  772.5(c), and on other projects that should be 
considered for exemption from analysis of traffic noise impacts with 
appropriate justification.
Type I Projects and Corresponding Proposed Exemptions
    If a Type I project meets the description in the first column, then 
a proposed exemption is listed in the second column.

------------------------------------------------------------------------
          Type I project            Proposed exemption to Type I project
------------------------------------------------------------------------
The addition of a new or            The addition of, or conversion to,
 substantial alteration of a toll    an all-electronic toll plaza where
 plaza Sec.   772.5(b)(3)(v).        vehicles do not stop or accelerate
                                     away. Sec.   772.5(c)(1)(i)
The addition of an auxiliary lane,  An auxiliary lane when it is a turn
 whether added by construction or    lane or less than 2,500 feet in
 restriping Sec.   772.5(b)(3)(ii)   length and thus does not function
 and (iv).                           as a through lane. Sec.
                                     772.5(c)(1)(ii)
The addition of a through traffic   The addition of a through traffic
 lane(s), whether added by           lane when:
 construction or restriping Sec.    <bullet> Design speed limit is 35
 772.5(b)(3)(i) and (iv).            mph or less; and
                                    <bullet> Vehicular restrictions
                                     would cause the volume of traffic
                                     using these lanes to be much lower
                                     than the main lanes, including
                                     autos-only, bus-only, and no trucks
                                     allowed. Sec.   772.5(c)(iii)
Substantial Vertical Alteration     A substantial vertical alteration
 Sec.   772.5(b)(2)(ii).             when such alteration results in a
                                     newly blocked line of sight between
                                     the area and the receptor, such as
                                     moving a roadway into a cut. Sec.
                                     772.5(c)(1)(iv)
------------------------------------------------------------------------

Type II Projects
    Proposed Sec.  772.5(d) is intended to provide more clarity to the 
public that a State would need to develop a Type II noise program in 
order to use Federal-aid funds when considering noise abatement on 
existing highways in the absence of a new highway project. This is the 
case under the existing regulation and it would be the case under the 
proposed rule. A State's participation in the development and 
implementation of a Type II program is and would continue to be 
optional. A State also retains the right to use their own funding for 
such abatement in the absence of an FHWA-approved Type II noise 
program.
Type III Projects
    Proposed Sec.  772.5(e) provides that a State DOT is not required 
to complete a noise analysis or consider abatement measures for a Type 
III project, which is a Federal or Federal-aid highway project that 
does not meet the classifications of a Type I or Type II project. The 
Definitions section of the existing regulation describes Type III 
projects and states that they do not require a noise analysis. The 
proposed definition in Sec.  772.3 would define Type III projects as 
ones that are not likely to change the noise environment, and would 
move the existing provision that a State DOT is not required to 
complete a noise analysis or consider abatement measures from the 
existing Definition to proposed Sec.  772.5(e).
State Noise Policy
    The FHWA is considering changes to the noise policy development and 
approval process and is requesting comments on three proposed options 
for Sec.  772.5(f), including the advantages and disadvantages of each. 
Commenters are also welcome to submit additional options, variations of 
the proposed options, or a combination of these options. After 
considering comments received, FHWA may include any of the options, or 
a variation or combination of the options, in the final rule. For all 
options, FHWA proposes to include the minimum requirements for the 
information that must be included in a State DOT noise policy in Sec.  
772.5(g). The FHWA seeks comment on the provided criteria and any other 
criteria not addressed that FHWA should consider.
    Option (1) reflects current practices that were established to 
ensure compliance with the standards developed under 23 U.S.C. 109(h). 
This option would ensure that projects where FHWA has approval 
authority would meet the FHWA noise standards. It provides for FHWA 
review and approval of State noise policies. Under this option, State 
DOTs would be required to develop a noise policy in conformance with 
part 772 and apply the policy uniformly and consistently statewide. The 
State DOT would be required to submit its proposed State policy to FHWA 
within 6 months of the effective date of the final rule for FHWA review 
and approval. The FHWA would review the State noise policy in a timely 
manner, and the State DOT would be required to implement the new noise 
policy within 12 months of the effective date of the final rule. The 
criteria provided in Sec.  772.5(g) contain the requirements for a 
State noise policy to support State DOT development and FHWA review of 
a policy.
    Under proposed option (2), a State would self-approve its own noise 
policy by finding that it meets the set of criteria, provided in 
proposed Sec.  772.5(g), and thus comply with standards developed under 
23 U.S.C. 109(h). Under this option, the State DOT would be required to 
develop a noise policy in conformance with the regulation. Within 6 
months of the effective date of the final rule, the State DOT would 
develop and self-approve its State policy according to FHWA criteria 
for noise policies. The State DOT would submit the self-approved noise 
policy to

[[Page 83809]]

FHWA and will post it on the State DOT's public website to ensure 
public access. The State DOT would be required to implement the new 
noise policy within 12 months of the effective date of the final rule 
and apply the policy uniformly and consistently statewide.
    Under proposed option (3), a State DOT could opt to self-approve 
the State noise policy or to submit it for FHWA review and approval. 
The State DOT would be required to develop a noise policy in 
conformance with the final rule. Within 6 months of the effective date 
of the final rule, the State DOT would either (1) submit its noise 
policy for FHWA review and approval, or (2) self-approve its own noise 
policy by finding that it meets the set of criteria provided in 
proposed Sec.  772.5(g), submit the self-approved noise policy to FHWA, 
and publish it on the State DOT's public website to ensure public 
access. The State DOT would be required to implement the new noise 
policy within 12 months of the effective date of the final rule and 
apply the policy uniformly and consistently statewide, regardless of 
which approval option the State chooses.
Effective Date
    Proposed Sec.  772.5(h) includes new text explaining that projects 
for which traffic noise prediction activities are initiated 12 months 
after the effective date of a final rule, or initiated after approval 
of the State's noise policy, whichever occurs first, must be developed 
in accordance with this part. The State DOT may choose to apply the 
final rule to any project at any stage after approval of the State's 
noise policy pursuant to Sec.  772.5(f).

Section 772.7 Traffic Noise Prediction

    In renumbered Sec.  772.7, FHWA proposes to change the reference to 
FHWA TNM version, and the process to announce and apply the use of new 
versions of the noise model in proposed Sec.  772.7(a); make several 
clarifications in proposed Sec.  772.7(c) and (d); and add a noise 
screening process to reduce regulatory and analysis burden for projects 
that are unlikely to cause impacts in proposed Sec.  727.7(e).
Traffic Noise Model Version
    In proposed Sec.  772.7(a), FHWA proposes to delete the current 
reference to a specific TNM version. Though the TNM will continue to be 
the required model for noise prediction, instead of specifying a 
version of TNM in the regulation, FHWA proposes to require the use of 
the latest version of the model, or any other model FHWA determines to 
be consistent with the TNM's methodology. The FHWA also proposes to 
establish a process to announce each updated required version of TNM by 
publishing a notice of availability in the Federal Register.
    To allow more implementation flexibility, FHWA intends to provide a 
grace period after the release of a new or major updated version of 
TNM. The length of the grace period would depend on the level and 
extent of the changes, but it would be a minimum of 6 months to a 
maximum of 2 years. The FHWA would announce the length of the grace 
period in the same Federal Register notice of availability that 
announces the model release. The FHWA believes that providing a 
variable grace period to incorporate use for the new model is important 
to address the needs of each release situation. For example, if the new 
version of the model requires additional data collection, then a longer 
grace period might be necessary to accommodate this effort before 
requiring its use. The FHWA believes a maximum 2-year grace period 
would allow States ample time to prepare for the implementation of the 
new version of the model.
    The FHWA is also proposing that any highway project for which 
traffic noise prediction activities have been initiated using the 
previous version of the TNM before or during the grace period can 
continue without switching to the new model. The new model must be used 
any time traffic noise prediction (i.e., modeling activities) are 
started after the end of the grace period. The FHWA believes this 
process will provide a smooth transition to the adoption of each 
version of TNM, provide more certainty to the States, and minimize any 
interruption to project schedules.
Clarifications
    The FHWA is also proposing clarifications in Sec.  772.7(c) 
concerning the use of traffic characteristics that would yield the 
worst traffic noise impact. Currently, the rule requires, when 
predicting noise levels and assessing noise impacts, the use of 
``traffic characteristics that would yield the worst traffic noise 
impact for the design year. . . .''. The FHWA is proposing to clarify 
these requirements for Type I and Type II projects. Type I project 
analyses would continue to use the design year; however, since there is 
no design year for a Type II project, those analyses would use the 
worst noise hour for the existing year resulting from the combination 
of natural and mechanical sources and human activity usually present in 
a particular area, per the definition of Existing noise levels. This 
clarification reflects the existing practice and makes the language in 
the rule more precise. Consistent with current policy, State DOTs 
should continue to use the operating speed to determine the existing 
worst noise hour if it is determined to be consistently higher than the 
posted speed limit.\3\ The FHWA is seeking comment on whether it would 
be beneficial to include a new definition for the term `Worst Noise 
Hour' and whether this definition should incorporate the existing 
guidance regarding the use of operating speeds for vehicles.
---------------------------------------------------------------------------

    \3\ FHWA, Analysis and Abatement Guidance (December 2010), 
available at: https://www.fhwa.dot.gov/environment/noise/regulations_and_guidance/analysis_and_abatement_guidance/.
---------------------------------------------------------------------------

    The FHWA also proposes to consolidate and move instructions 
regarding the calculation and placement of receptors, which is 
currently found under the descriptions of each Activity Category in 
Sec.  772.11. Because we are proposing to remove those detailed 
descriptions from the text, the relevant portions were summarized and 
moved to Sec.  772.7(d). The text continues to state that each State 
DOT must define a method to calculate and place non-residential 
receptors and apply it consistently statewide. Proposed Sec.  772.7(d) 
also includes regulatory text providing that for residential land uses, 
each single-family structure and each dwelling unit in a multifamily 
structure would be counted as one receptor when determining impacted 
and benefitted receptors. We proposed moving similar language from the 
Definitions section when we combined the definitions of multifamily 
dwelling and residence. The text does not reflect a new requirement, 
and is part of the proposed reorganization.
Noise Screening Process
    The FHWA proposes in Sec.  772.7(e) to add an optional traffic 
noise screening process to allow State DOTs to determine whether a 
project is likely to cause traffic noise impacts before conducting a 
detailed noise analysis. If a project passes the traffic noise 
screening outlined in proposed Sec.  772.7(e), the State DOT could 
document the results and no further analysis would be required. Traffic 
noise screening would reduce unnecessary analysis conducted for 
projects that do not cause any meaningful noise impacts.
    The FHWA proposes that traffic noise screening would involve 
modeling a worst-case scenario with a simplified TNM run using a FHWA-
approved tool such as FHWA's Traffic Noise Screening

[[Page 83810]]

Tool,\4\ rather than the usual requirements of detailed TNM object 
inputs and model validation. Currently, the use of particular screening 
tools is allowed through their inclusion in a State noise policy that 
is submitted for FHWA review and approval. Because of the simplified 
inputs associated with a screening analysis, it is expected that 
results will vary somewhat from a detailed analysis conducted using 
TNM. In order to minimize any other additional sources of variance 
between a detailed TNM analysis and the screening, the screening tool 
should be such that it can replicate TNM results when the modeled 
conditions are the same. The FHWA's Traffic Noise Screening Tool will 
replicate TNM results within 0.1 dB when the modeled conditions are the 
same. If a State DOT chooses to use its own screening tool; the 
decision to do so, the name of the tool, and a description of the tool 
would need to be included in the noise policy; and the tool also would 
need to replicate TNM results within 0.1 dB in order to be deemed 
compliant with the requirements. Allowing an absolute difference 
between a screening tool and TNM of no more than 0.1 dB would minimize 
variations that are not caused by inherent issues with the underlying 
simplifications involved with screening. Simple geometries can be 
computed in TNM and the results can be directly used in a screening 
tool with results scaled to account for different volumes using the 
same equations that are used by TNM; therefore, there is no need for a 
tolerance greater than 0.1 dB for consistency with TNM. This variation 
would be the test used in determining whether a given screening tool is 
allowed for use on projects. The FHWA seeks feedback on the allowable 
variation of 0.1 dB between TNM and a given screening tool.
---------------------------------------------------------------------------

    \4\ FHWA, Traffic Noise Screening Tool, software and User's 
Guide (September 2021), available at: https://www.fhwa.dot.gov/environment/noise/traffic_noise_model/.
---------------------------------------------------------------------------

    A State DOT would be required to conduct the screening analysis on 
the entire noise analysis area for the project. The same model or tool 
used to determine noise levels for the existing year also would be 
required to be used to analyze noise levels in the design year for the 
build condition, consistent with current practice in the use of TNM. 
State DOTs also could choose to analyze the design year for the no-
build condition using the aforementioned screening methods.
    A traffic noise screening analysis would be required to include the 
following parameters, if applicable: existing noise level, facility 
type, length of facility, number of lanes in each travel direction, 
lane width, roadway design capacity, vehicle fleet mix, speed, roadway 
grade, type of ground between roadway and receiver, land (urban/
suburban/rural) areas, Noise Impact Criteria Activity Category, and 
distance of nearest receiver from the roadway. The FHWA requests 
comments on the proposed screening parameters and on other screening 
parameters that should be considered.
    Type I projects with complex attributes are not appropriate for 
screening analysis and would be required to apply the provisions in 
proposed Sec.  772.9. Complex attributes include: the construction of a 
roadway on a new location; ground elevation changes because of hills, 
valleys, and other undulations greater than three feet that do not 
correlate to the grade change in the roadway (e.g., the roadway will 
continue at its current elevation regardless of the surrounding 
terrain); large areas of trees that fully obscure the line of sight 
between the roadway and the source; intervening buildings, barriers, or 
other substantial structures; intervening ground with multiple ground 
types (e.g., water, pavement, grass, etc.); or where the horizontal 
deviation between any roadway segment of the project and a straight 
line approximation of the entire length of the roadway project is 
greater than 25 degrees (i.e., a curvy road).
    The FHWA proposes that detailed traffic noise analysis as described 
in Sec.  772.9 would not be required if both of the following screening 
conditions are satisfied: first, if the result of screening is at least 
5 dB less than the Noise Impact Criteria for the appropriate activity 
category, and second, if the result of screening does not exceed the 
substantial noise increase criteria determined in a State noise policy. 
The screening threshold of 5 dB below the Noise Impact Criteria 
represents a safety factor that accounts for expected variation between 
a detailed model such as TNM and a simplified model such as the Traffic 
Noise Screening Tool. A 5 dB safety factor is not needed for the State 
DOT's substantial noise increase criteria because any over or under 
predictions in the existing condition are expected to cancel with any 
over or under predictions for the future condition. For more 
information, the technical report titled, ``23 CFR 772 NPRM Analysis: 
Traffic Noise Screening Process'' is available for review in the 
docket.
    The FHWA seeks comments on whether it should allow project 
screening and the proposed screening parameters.

Section 772.9 Analysis of Traffic Noise Impacts

    The FHWA is proposing multiple changes to the process of analyzing 
traffic noise impacts in renumbered Sec.  772.9. Related proposed 
changes can be found in Sec.  772.3 and Table 1 to Part 772--Noise 
Impact Criteria.
    To improve readability, FHWA is proposing to reorganize this 
section to better align with the order of activities in the project 
development process. The FHWA removed the detailed description of the 
Activity Categories from this section to avoid duplication of 
descriptions provided in table 1 to part 772.
    As described in proposed Sec.  772.3, FHWA proposes to clarify that 
the noise analysis area in Sec.  772.9(a)(1) can be within or slightly 
beyond the project limits, to only include areas that have the 
potential for noise impacts. Under the current definition of a Type I 
project (Sec.  772.3, Type I project, paragraph 8), a project must be 
analyzed for traffic noise impacts for the entire project area as 
defined in the environmental document. This change would better align 
the necessary analysis with the likelihood of impacts and abatement, 
while still protecting the near-road receptors from traffic noise 
impacts that may be caused by, or increased by, the proposed project.
    The FHWA proposes to clarify what constitutes ``validation of the 
noise model'' in proposed Sec.  772.9(a)(3) by incorporating 
longstanding guidance \5\ that the existing noise level and predicted 
noise level for the existing condition are within +/- 3 dB(A).
---------------------------------------------------------------------------

    \5\ FHWA, Analysis and Abatement Guidance (December 2010), 
available at: https://www.fhwa.dot.gov/environment/noise/regulations_and_guidance/analysis_and_abatement_guidance/.
---------------------------------------------------------------------------

    Part of determining whether there is a noise impact involves 
comparing predicted noise levels against the values in table 1 for a 
given land use and activity category. Currently, State DOTs must define 
an `approach criteria' as a value at least 1 dB below the corresponding 
value in table 1. The FHWA proposes to remove the requirement in 
current Sec.  772.11(e) for State DOTs to establish an approach level 
to be used when determining a traffic noise impact. As mentioned in 
Sec.  772.3 Definitions and described in table 1, instead of requiring 
an approach level of at least 1 dB(A) less than the Noise Impact 
Criteria listed in table 1 to part 772, FHWA proposes to reduce the 
Noise Impact Criteria values in table 1 by 1 dB(A) below current 
levels. The purpose of this change is to integrate the most commonly 
used approach level of

[[Page 83811]]

1 dB(A) less than the values in current table 1, and simplify the 
regulation by not requiring States to take an additional step to apply 
an approach level. States would retain the same flexibility by 
continuing to have the option to define a more stringent (lower) impact 
level than the values in table 1 in their State noise policy.

Section 772.11 Analysis of Traffic Noise Abatement

    The FHWA is proposing several changes to renumbered Sec.  772.11, 
including providing new flexibilities for noise abatement measures and 
moving the reporting requirements to a new section, Sec.  772.15 
Documentation and Reporting.
    The FHWA is proposing to require in Sec.  772.11(a) that abatement 
measures must be considered and evaluated for effectiveness (i.e., 
replacing feasibility and reasonableness in current Sec.  772.13(d)). 
The FHWA would continue to require ``primary consideration to exterior 
areas where frequent human use occurs'' (in current Sec.  772.11(b)), 
in proposed Sec.  772.11(a)(1). The FHWA intends to maintain its 
longstanding policy that noise abatement measures remain effective in 
perpetuity \6\ and proposes to codify in proposed Sec.  772.11(a)(2) 
what is currently provided in guidance.
---------------------------------------------------------------------------

    \6\ FHWA, Analysis and Abatement Guidance (December 2010), 
available at: https://www.fhwa.dot.gov/environment/noise/regulations_and_guidance/analysis_and_abatement_guidance/.
---------------------------------------------------------------------------

    State DOTs have requested clear direction on how to address 
replacement of noise barriers. The FHWA is proposing new language in 
Sec.  772.11(b) regarding how to address projects where there is 
already existing noise abatement from a previous project. Current FHWA 
guidance discusses how a State should consider existing abatement, 
including whether it should be enhanced to provide the appropriate 
level of protection for the most recent traffic volumes and worst noise 
hour. However, the guidance does not discuss what to do in the event 
that the existing abatement must be removed to accommodate features of 
a new highway project. Some State DOTs have taken the lead in 
addressing this issue by requiring that the abatement be rebuilt and, 
if possible, improved upon, at a new location. To this end, FHWA 
proposes to include language in the rule to address this issue 
consistent with existing State DOT practice and longstanding FHWA 
policy that abatement should provide a substantial reduction in noise 
levels \7\ and provide that abatement in perpetuity.\8\ Specifically, 
FHWA proposes in Sec.  772.11(b) that an existing noise abatement 
measure that is affected or removed because of a highway project must 
be replaced to provide noise abatement equal to or better than what was 
present before. The FHWA believes that this proposed language could 
ensure that affected communities would continue to receive at least the 
same level of noise reduction even with the removal of the existing 
noise abatement. The proposed language also includes exceptions to the 
provision when the abatement is no longer desired or the land use is no 
longer sensitive to noise. The FHWA is seeking comment on whether this 
proposed clarification on the replacement of noise abatement would aid 
State DOTs in planning and conducting their highway noise analyses.
---------------------------------------------------------------------------

    \7\ FHWA, Analysis and Abatement Guidance (December 2010), 
available at: https://www.fhwa.dot.gov/environment/noise/regulations_and_guidance/analysis_and_abatement_guidance/.
    \8\ FHWA, Analysis and Abatement Guidance (December 2010), 
available at: https://www.fhwa.dot.gov/environment/noise/regulations_and_guidance/analysis_and_abatement_guidance/.
---------------------------------------------------------------------------

    The primary change to this section is that FHWA proposes in Sec.  
772.11(c) through (e) to simplify the analysis of traffic noise 
abatement by consolidating the existing ``feasibility'' and 
``reasonableness'' evaluation requirements into one single 
``effectiveness'' assessment based on four criteria--(1) engineering 
effectiveness (i.e., constructability and maintenance), (2) acoustic 
effectiveness, (3) cost effectiveness, and (4) consideration of 
viewpoints. Each of these criteria is described below. As proposed in 
Sec.  772.11(c), each State DOT would be expected to describe what 
constitutes effective abatement in its noise policy, in compliance with 
the parameters defined in Sec.  772.11(e). All abatement effectiveness 
factors would be required to be achieved in order for a noise abatement 
measure to be deemed effective.
Engineering Effectiveness
    Engineering effectiveness would have the same description as 
existing Sec.  772.13(d)(1)(ii) under feasibility.
Acoustic Effectiveness
    Acoustic effectiveness would combine the acoustic feasibility 
factor described in existing Sec.  772.13(d)(1)(i) and the 
reasonableness factor of a noise reduction design goal described in 
existing Sec.  772.13(d)(2)(iii) into a single assessment.
    The FHWA is proposing to rename the ``noise reduction design goal'' 
in existing Sec.  772.13(d)(2)(iii) as the ``noise reduction 
requirement'' to more accurately reflect that achieving this reduction 
remains a requirement for Federal participation in the noise abatement 
measure(s).
    The current noise reduction design goal for an abatement measure to 
be considered reasonable is at least 7 dB(A) but not more than 10 
dB(A), as defined in a State noise policy and applied uniformly and 
consistently statewide. However, abatement is considered feasible under 
the current rule at a minimum 5 dB(A) reduction. Similarly, most State 
DOTs consider a receptor to be benefited if it receives a noise 
reduction of at least 5 dB(A).
    The noise reduction requirement is included in the determination of 
acoustic effectiveness in proposed Sec.  772.11(e)(2). To determine 
acoustic effectiveness, FHWA is proposing to allow States to define a 
noise reduction requirement in the State noise policy of at least 5 
dB(A) but not more than 10 dB(A). This means that an abatement measure 
would need to achieve a noise reduction of at least the State's noise 
reduction requirement, from 5 dB(A) to 10 dB(A), to be eligible for 
Federal funding.
    The intent of this proposed change is to eliminate confusion over 
the varying values in the definitions and to allow more flexibility to 
States in determining acoustic effectiveness for effective abatement 
measures. The FHWA has received feedback from State DOTs that retaining 
flexibility is an important part of the noise program, and this 
proposal seeks to retain that flexibility while also providing clear 
direction on abatement requirements.
    The FHWA requests comment on the proposed noise reduction 
requirement within the range of at least 5 dB(A) but not more than 10 
dB(A) for acoustic effectiveness. The FHWA also solicits input and 
justification on other ranges to define acoustic effectiveness.
    The second step in determining acoustic effectiveness is to analyze 
whether the noise abatement measure provides the required noise 
reduction at a sufficient number or percentage of impacted receptors. 
The FHWA is proposing to continue to allow State DOTs to choose from 
the most common options currently in use by State DOTs. The proposed 
options are: a simple majority of impacted receptors, two or more 
impacted receptors, or a combination of these two criteria. For 
example, by using a combination of the criteria, a State DOT could 
consider noise abatement to be ineffective if there is only an isolated 
receptor in the given area, and also that noise abatement must provide 
the required reduction to a

[[Page 83812]]

simple majority of the impacted receptors. The State would be required 
to define and explain the basis for the determination in their noise 
policy, which also is required under the current regulation.
Cost Effectiveness
    Cost effectiveness as proposed would have a similar description as 
existing Sec.  772.13(d)(2)(ii) under reasonableness. The FHWA proposes 
to clarify that cost criteria may be determined for each type of 
abatement a State DOT intends to use, recognizing that different 
abatement measures may have different costs associated with them. Cost 
effectiveness can be based on the cost of a measure or based on the 
quantity of material for that measure and the cost of that material. 
Should FHWA define criteria for considering the cost effectiveness of 
non-barrier (i.e., not walls or berms) abatement measures? Or should 
FHWA provide some basic parameters and allow States to define how other 
abatement measures will be analyzed for cost effectiveness? The FHWA 
requests comments and examples to inform our consideration of these 
questions and the proposed cost effectiveness provisions.
    The FHWA also seeks comment on whether geographic cost allowances 
and cost averaging should be retained in the regulation in proposed 
Sec.  772.11(e)(3)(i) and (ii).
    The FHWA is proposing to amend the provision on third party funding 
of noise abatement measures. Currently, Sec.  772.13(j) prohibits any 
third-party funding that is necessary to make otherwise infeasible or 
unreasonable measures feasible and/or reasonable (replaced by the term 
``effective'' in the proposed rule). Third parties are any entities 
other than the recipients of funds designated under title 23 U.S.C. An 
element in determining the reasonableness of noise abatement measures 
involves relative cost effectiveness by comparing the cost of abatement 
measures on a project to a baseline cost reasonableness value. Third 
party funding of some of a measure's costs could have the effect of 
making the cost to construct the measure on a project fall below the 
baseline value, and thus be considered cost-effective, and therefore 
make the remainder of the cost eligible for Federal-aid funding.
    Prior to the current rule, under FHWA guidance, it was permissible 
for third-party funding to pay for the difference between the actual 
costs and the baseline value (partial funding) of noise abatement 
measures, provided it was done in a non-discriminatory manner. The 
current rule changed the standard in stating ``FHWA's position that, in 
order to comply with the requirements of title VI and the Executive 
order on Environmental Justice (E.O. 12898), it is only acceptable to 
permit third party funding . . . if the noise abatement measure would 
be considered feasible and/or reasonable without the additional 
funding.'' Title VI and the E.O. 12898 requires fair treatment of 
minority and low income populations in bearing the burdens and 
realizing the benefits of federally funded activities. The E.O. 13985 
specifically states that Agencies must recognize and work to redress 
inequities in policies and programs that serve as barriers to equal 
opportunity and should allocate resources to address the historic 
failure to invest sufficiently, justly, and equally in underserved 
communities, as well as individuals from those communities. Because 
these concerns do not arise with third party funding of functional and 
aesthetic enhancements of measures already determined effective, 
funding of such enhancements is currently acceptable. The effect of the 
provision in current Sec.  772.13(j) was to ban both partial and 
complete third-party funding of noise abatement measures which are 
determined to be cost ineffective.
    The purpose of the prohibition in the current regulation is to 
protect the Federal investment in the project by funding construction 
of only cost-effective measures, and to ensure that interests desiring 
otherwise cost ineffective measures do not gain an unfair advantage in 
the allocation of scarce infrastructure resources on Federal-aid funded 
projects. Consistent with title VI, E.O. 12898, and E.O. 13985, the 
prohibition also ensures minority and low-income persons are not denied 
benefits such as construction of a noise abatement measure that others 
may realize as part of a Federal-aid highway project. But the scope of 
the current prohibition may not be appropriate to achieve these 
purposes without resulting in unintended negative consequences. It is 
clear that third party funding of a portion of the cost of an 
ineffective noise abatement measure, which had been allowed under 
previous FHWA guidance, has the potential to result in imprudent and 
unfair allocation of resources and benefits on Federal-aid projects, 
and the current rule appropriately prohibits such funding. Where no 
Federal, or State, resources are involved because a measure is funded 
entirely by a third party; however, neither environmental or financial 
fairness in allocation of public benefits and burdens, nor financial 
prudence issues, are implicated. Where no person is burdened or denied 
public benefits by the complete funding of additional benefits by third 
parties, those additional resources in the form of third party 
donations should be allowed to be used on a project to maximize limited 
public investment in infrastructure. The current rule, thus, may have 
gone beyond what is needed to ensure non-discriminatory treatment.
    The FHWA is proposing three options for third-party funding in this 
rulemaking at Sec.  772.11(e)(3)(iii). While we have included one 
option (Option 3) in the proposed regulatory text, we may include any 
of the options discussed, or a variation of any of the options based on 
comments received, in a final rule. Proposed Option 1 would make only a 
conforming change from the concept of feasible and reasonable to 
effective. This option would continue the current prohibition on any 
third-party funding that is necessary to make otherwise ineffective 
measures effective, and would continue to allow third party funding of 
enhancements.
    Proposed Option 2 would continue the current prohibition on any 
third party funding that is necessary to make otherwise ineffective 
measures effective, and would continue to allow third party funding of 
enhancements. It would add a provision to allow donation of costs for 
utility relocation by a non-receptor utility and donation of real 
property by a non-receptor third party, needed to construct a noise 
abatement measure, consistent with 23 U.S.C. 323. According to 23 
U.S.C. 323, donation of real property to be acquired in connection with 
a project, funds, materials, and services is permitted, notwithstanding 
any other law, the value of which is credited to the State's share of 
project costs. The proposed rule would also allow the donation of real 
property and allow the value of such to be credited to the State's 
share of the project costs, consistent with 23 U.S.C. 323. A utility or 
landowner which is also a noise sensitive receptor would not be allowed 
to donate costs for utility relocation or real property because they 
could gain an advantage by donating what amounts to partial funding of 
abatement measures. The effect of the change would be to enhance 
funding flexibility and broaden the pool of resources available for a 
project. A State would not be required to allow such donations.
    Proposed Option 3, which appears in the regulatory text of the 
proposed rule, would remove the current prohibition insofar as it bans 
complete funding of ineffective noise abatement measures by third 
parties, while retaining the ban on

[[Page 83813]]

partial funding that is necessary to make otherwise ineffective 
measures effective. Where a third party pays for the entire cost of 
otherwise cost ineffective measures, neither of the Government's 
concerns, Federal funding or fairness, financial and environmental, is 
implicated. In the context of the gap between resources and needs for 
infrastructure development, and increasingly dense development leading 
to a greater potential for noise impacts, if a neighborhood, for 
example, wishes to pay all costs associated with construction of a 
noise barrier that is not cost effective under State standards, but 
meets other effectiveness criteria, then the State should retain the 
flexibility to accommodate the request and accept the donation. In 
accepting such a donation, the State would not be committing scarce 
Federal funds to otherwise ineffective measures or putting other 
receptors at a disadvantage. In contrast, where there is an offer of 
only partial funding of measures, enough to make the barrier cost 
effective but not for the entire cost, funds would be committed to 
ineffective measures, to the potential disadvantage of other receptors 
on the project and of receptors on and beneficiaries of other projects. 
The effect of the change would be to enhance funding flexibility and 
broaden the pool of resources available for a project. A State would 
not be required to allow such donations.
    For noise abatement measures funded by third parties under Option 
3, the value of the donation could not be credited to the non-Federal 
share of the project funding. Since the construction cost of the 
measure being greater than the baseline cost effectiveness value, the 
measure would be ineligible for Federal-aid funding, and could only be 
constructed because it was funded by a third-party donation. Because 
the measure would be ineligible for Federal funding, it would not be 
necessary for implementation of the project and, therefore, would not 
meet the cost allowability requirements of the Federal cost principles 
under 2 CFR part 200, subpart E, and may not be credited to the non-
Federal share of the project funding.\9\ The FHWA seeks comment on 
these three options, and any other options suggested by commenters.
---------------------------------------------------------------------------

    \9\ FHWA, Federal-Aid Guidance Non-Federal Matching Requirements 
(May 2019), available at: https://www.fhwa.dot.gov/legsregs/directives/policy/memonfmr_tapered20190515.htm.
---------------------------------------------------------------------------

Consideration of the Viewpoints of the Property Owners and Residents of 
the Benefitted Receptors
    Proposed Sec.  772.11(e)(4) has a similar description as existing 
Sec.  772.13(d)(2)(i) under reasonableness. The FHWA is proposing to 
clarify its longstanding policy that only residents and property owners 
at benefitting receptors can make a determination on desirability of 
noise abatement on a public right-of-way. There have been situations 
where a homeowner's association or other entity has sought to speak for 
all residents in the association, and we want to clarify that the 
viewpoints of residents and property owners must be considered 
individually and not as an association. The State DOT must consider 
tenants and renters in addition to property owners when analyzing noise 
abatement, which clarifies FHWA existing policy. Some State noise 
policies have considered tenants and renters unequally to property 
owners, such as with different weighting, and FHWA seeks comment on how 
to encourage equal access to the process when State DOTs are analyzing 
traffic noise abatement. Equal weighting is particularly important to 
ensure equitable consideration for underserved populations.
    The FHWA is also proposing to streamline and standardize the 
viewpoint criteria by proposing that a simple majority of respondents 
must desire abatement for it to be constructed. We are proposing this 
change in an effort to simplify the process and to better align the 
viewpoint criteria to public expectations of voting and subsequent 
decisionmaking.
    The FHWA proposes that a State DOT cannot demand a minimum response 
as to whether to construct a noise abatement measure, unless there are 
two or more outreach efforts to directly contact the benefitted 
receptors and obtain their viewpoints. This change is to reflect the 
current guidance in the online FHWA Highway Traffic Noise Frequently 
Asked Questions \10\ (FAQ G.7) and to address the issues regarding low 
response rates to noise abatement surveys, and sporadic meeting 
attendance on non-major, non-controversial projects. The State DOT 
would be required to document requirements for outreach efforts, and 
where necessary a minimum response rate, in the State noise policy and 
apply the requirements uniformly statewide.
---------------------------------------------------------------------------

    \10\ FHWA, Noise Policy FAQs--Frequently Asked Questions (May 
2012), available at: https://www.fhwa.dot.gov/environment/noise/regulations_and_guidance/faq_nois.cfm.
---------------------------------------------------------------------------

Optional Factors
    The FHWA is proposing in Sec.  772.11(e)(5) a new optional factor 
for added flexibility in determining the effectiveness of noise 
abatement measures. New Sec.  772.11(e)(5)(vii) would provide a new 
consideration of whether a noise abatement measure would provide some 
added, incidental benefit to receptors from other environmental or 
social impacts. For example, historically marginalized communities may 
have impacts from past highway projects, but may not have received 
abatement at the time. Considering this optional factor in noise 
abatement could support environmental justice and community 
enhancement. In addition, research has shown that some noise walls may 
have air quality benefits,\11\ which supports human health. In both 
cases, a State DOT would include its use of this optional factor in its 
noise policy and would describe by how much the cost effectiveness 
criterion of a given mitigation measure would increase when the 
optional factor is in use. For example, the optional factor could 
state: ``communities that predate the highway'', or ``low-income 
communities will be analyzed using $45,000 per benefited receptor''; 
whereas other receptors would only be considered using a ``$40,000 per 
benefited receptor'' criteria. In addition, this optional factor could 
be expanded and combined; for example, if a mitigation measure is being 
evaluated for a low-income community, using the previous example, it 
could cost up to $45,000 per benefitted receptor. If the given measure 
also provides some air quality benefits, it could then be written into 
the State noise policy that that measure could cost up to $48,000 per 
benefitted receptor. In addition, the newly proposed optional factor 
could be combined with other, existing optional reasonableness factors, 
too. This additive potential of the optional factors could be used by 
State DOTs to increase the possibility of providing noise mitigation 
where it is needed most. The costs and situations in the previous 
examples are simply for illustrative purposes and should not be taken 
as guidance as to how much mitigation measures should cost. Actual 
costs and

[[Page 83814]]

increases from using the optional factor will vary and be defined by 
each State DOT that chooses to use it.
---------------------------------------------------------------------------

    \11\ U.S. Environmental Protection Agency, Recommendations for 
Constructing Roadside Vegetation Barriers to Improve Near-road Air 
Quality (August 2016), available at: https://www.epa.gov/sites/default/files/2016-08/documents/recommendations_for_constructing_roadside_vegetation_barriers_to_improve_near-road_air_quality.pdf.
---------------------------------------------------------------------------

    By including this optional factor, States may add flexibility to 
increase the allowable cost of abatement as defined by cost 
effectiveness, and not restrict or take away from current requirements 
or add new requirements. Optional factors could not be used alone to 
determine effectiveness, and should not inhibit noise abatement that is 
otherwise considered effective. The FHWA seeks comment on the optional 
factors, particularly the new optional factor, and whether FHWA should 
consider any other factors for inclusion in this area.
Date of Public Knowledge
    The FHWA proposes to move the definition of the term ``date of 
public knowledge'' in current Sec.  772.5 to describe the date for 
establishing the date of public knowledge in proposed Sec.  772.11(f), 
and to add Supplemental Environmental Impact Statement (EIS) to the 
list of environmental documents the approval of which constitutes the 
date of public knowledge.
    Proposed Sec.  772.11(f)(1) and (2) were moved and revised from 
current Sec.  772.11(c)(2)(vii)(C) to use terminology consistent with 
the proposed rule for State DOT, environmental document, and technical 
noise memorandum. Proposed Sec.  772.11(d)(3) clarifies that any lands 
permitted for noise-sensitive development before the date of public 
knowledge must be considered for potential impacts and abatement.
    In proposed Sec.  772.11(g), FHWA added clarifications that the 
date of public knowledge would be updated under certain conditions: (1) 
if it has been more than 5 years since the existing date of public 
knowledge was established or last updated; or (2) the State DOT finds 
that a change in highway design or operations results in a change in 
noise impacts. These clarifications seek to ensure fairness and 
equitable access to information for the public about upcoming projects 
and possible changes to the noise environment.
    The FHWA is proposing 5 years as the duration because the traffic 
data used in noise analysis that is older than 5 years introduces 
higher risk in the analysis of safety, operations, and engineering 
acceptability, and in turn, affects the accuracy of noise analysis. 
Within this time period, some areas would see significant change in 
travel patterns and conditions, which may warrant a reconsideration of 
whether the technical assumptions that formed the basis of FHWA's prior 
approval are still valid. In addition, this timeframe would allow for 
one Long-Range Transportation Plan update for most metropolitan 
planning organizations (MPO). See 23 U.S.C. 134(i)(1). Therefore, to 
account for the project development process (i.e., planning, 
preliminary design, environmental analysis, final design, right-of-way 
acquisition, and construction) and to minimize the need to revise an 
analysis that was started at the end of the MPO modeling cycle, the 
proposed rule would clarify that the date of public knowledge may need 
to be updated if the traffic data used in the State DOT's noise 
analysis is more than 5 years old.
    The second condition is when a project has completed NEPA but it is 
determined during a NEPA re-evaluation that a change in the proposed 
highway design or operations would change the noise environment in a 
way that changes impacts or results in new impacts that were not 
evaluated in the original categorical exclusion (CE) or environmental 
document. When such project design changes occur, FHWA aims to clarify 
when the date of public knowledge may be reset, when impacts must be 
reconsidered, and when new land use developments must be included in 
the updated analyses and considered for traffic noise impacts and 
abatement. The FHWA is considering defining a value for a design change 
that results in noise impacts to be within the range of 1.5 to 3 dB. 
The FHWA requests comment on the value within that range to consider a 
change in highway design or operations that result in traffic noise 
impacts.
    Under both conditions, the entire noise analysis area would be 
eligible for screening to determine the likelihood that the noise level 
has changed from what was analyzed in the original NEPA document, in 
order to determine whether a full reanalysis is necessary. Any new 
noise-sensitive development and lands permitted for noise-sensitive 
development between the previously established and updated date of 
public knowledge for the project must be considered for potential 
impacts and abatement. The updated Date of Public Knowledge would be 
established based on the most recent NEPA approval for the highway 
project, environmental reevaluation, or a supplemental NEPA review and 
approval.
    The FHWA seeks comments on the proposed changes to the date of 
public knowledge.
    Related to the analysis of noise abatement, FHWA is also seeking 
comments on the following two items in Sec.  772.19 and table 1 of this 
NPRM.
1. Request for Comments on Analysis of Non-Barrier Abatement
    The current regulation focused provisions on barrier abatement. 
Proposed Sec.  772.19 would include more flexibilities to consider non-
barrier abatement measures. Examples may include measures that require 
ongoing maintenance or replacement, such as quiet pavements, measures 
on private property, such as insulation, or measures subject to 
reanalysis and revision, such as speed restrictions. In order to assess 
the effectiveness of non-barrier abatement measures, FHWA is seeking 
comment on ways that non-barrier abatement can be evaluated for 
eligibility.
2. Request for Comments on Abatement Process for Extremely Noise 
Sensitive Land Uses
    Activity Category A lands are very noise sensitive, and preserving 
their serenity and quietness is essential (e.g., the Tomb of the 
Unknown Soldier at the Arlington National Cemetery). The current 
regulation has a lower impact criteria for these land uses; however, 
they are evaluated for abatement using the same process as other, less 
sensitive activities and land uses. The FHWA is seeking comment on 
whether Activity Category A lands in table 1 should have a different 
process for considering noise abatement, and how this process should be 
implemented. This process should ensure that noise abatement would be 
more likely because of the exceedingly noise sensitive nature of this 
land use category.

Section 772.13 Construction Noise

    Proposed Sec.  772.13 includes the requirements of existing Sec.  
772.19, renumbered as Sec.  772.13(b) with new provisions concerning 
quantitative analysis of certain construction projects in Sec.  
772.13(a) and clarification that it would be optional to analyze 
construction for Type III projects in Sec.  772.13(c).
    Construction noise can be disruptive to human activities. When 
construction noise continues for a long time at a single location, it 
can create long-term impacts by disrupting sleep, concentration at work 
or school, or increasing stress to adjacent receptors who may have no 
recourse to avoid or minimize such noise impacts. Calculation of 
construction noise levels is usually not necessary for highway traffic 
noise analyses. The decision to develop a detailed construction noise 
analysis usually results from a combination of factors including the 
scale and scope of the project along with

[[Page 83815]]

public concern about construction noise. The FHWA is proposing, in 
Sec.  772.13(a), to clarify when quantitative analysis should be 
conducted on certain long-term and/or high impact construction projects 
and thus encourage the use of construction noise abatement techniques 
on these projects. The FHWA provides resources for these analyses in 
the form of the Roadway Construction Noise Model, and the Construction 
Noise Handbook located on our website (https://www.fhwa.dot.gov/environment/noise/construction_noise/). The FHWA affirms that State 
DOTs should continue to consider construction noise qualitatively for 
most projects, but proposes to clarify that a State DOT should consider 
construction noise in a quantitative analysis where severe highway 
construction noise impacts are likely to occur.
    The FHWA also seeks comment on how to better consider abatement 
options for long-term construction projects. State DOTs may incorporate 
low-cost, easy-to-implement measures into project plans and 
specifications (e.g., work-hour limits, equipment muffler requirements, 
location of haul roads, elimination of ``tail gate banging'', ambient 
sensitive back-up alarms, community rapport, and complaint mechanisms). 
Additional ideas for abatement techniques are described in FHWA 
Construction Noise Handbook. Under the proposed rule, States and 
contractors would continue to have the option to formulate and 
implement their own ideas too.
    Finally, FHWA proposes in Sec.  772.13(c) that for Type III 
projects, a State DOT may choose to perform the analyses required for 
Type I and II projects under Sec.  772.13(b).

Section 772.15 Documentation and Reporting

    The FHWA proposes to consolidate all of the documentation and 
reporting requirements in a new section, Sec.  772.15 Documentation and 
Reporting. These requirements appear in various sections of the 
existing regulation, mostly under Sec.  772.11 Analysis of Noise 
Abatement, as well as under Sec.  772.9 Analysis of Traffic Noise 
Impacts and Sec.  772.13 Construction Noise. This new section would 
contain all information and requirements related to how a noise 
analysis is documented and what information a State is required to keep 
on noise abatement measures for the triennial noise abatement 
inventory.
    The FHWA proposes Sec.  772.15(a) and (b) to clarify documentation 
requirements for technical noise memos that are considered current 
state of the practice.
    The FHWA proposes several revisions to current Sec.  772.13(g) for 
clarity, and to move the provision to proposed Sec.  772.15(c).
    The FHWA proposes to move current Sec.  772.13(h) to proposed Sec.  
772.15(d) and to replace the terms ``feasible and reasonable'' with 
``effective'' to be consistent with this proposed rule. This provision 
is consistent with the statute 23 U.S.C. 109(i).
    For completeness of the reporting section, FHWA proposes in Sec.  
772.15(e) to include the provision in current Sec.  772.19(c) and 
proposed Sec.  772.13(a)(3) to incorporate construction noise abatement 
measures in plans and specifications.
    The FHWA proposes to reorganize the Abatement Measure Reporting 
requirements in Sec.  772.15(f), into a list format to clearly identify 
required information. We also propose adding `if applicable' after 
certain items in the list for cases where the reported abatement 
measure is not a barrier (i.e., not a noise wall or a berm). Materials 
or features typically used for walls or berms are also listed.
    The FHWA seeks comments on the reorganization of provisions into a 
new Documentation and Reporting section.

Section 772.17 Information for Local Officials

    The FHWA is proposing minor changes to this section by simplifying 
the discussion of the requirements to remove repetitious language. This 
section describes the information a State DOT must provide to local 
officials within whose jurisdiction a highway project is located.
    In Sec.  772.17(a)(2), FHWA proposes to remove mention of 
``approach'' for consistency with proposed changes in Sec.  772.9 and 
table 1 to part 772 to incorporate approach level into table 1. 
Instead, a State DOT would base the distance on future noise levels 
that meet the Noise Impact Criteria for each Activity Category in table 
1.
    The FHWA proposes to move the provision regarding use of noise 
contours for land use planning from current Sec.  772.9(c) to proposed 
Sec.  772.17(c), as it is more relevant to this section.

Section 772.19 Federal Participation

    The FHWA proposes to renumber existing Sec.  772.15 as proposed 
Sec.  772.19 and amend its provisions. The FHWA would like to encourage 
States to consider the most acoustically and cost-effective noise 
abatement measures, and to promote the use of new technologies that 
could result in lower noise levels and cost savings. The FHWA proposes 
that State DOTs could use a combination of measures to develop 
effective noise abatement so long as they are all properly maintained 
to provide the intended noise reduction. This proposed change could 
also help advance equity initiatives. For example, if a State DOT is 
proposing to build a noise wall, but the given benefited community 
feels that this would divide it or otherwise disconnect it from the 
surrounding areas, the State DOT could opt to propose quiet pavements 
instead, so long as the pavement provided the same acoustical benefit 
as the wall would have, and the State DOT agreed to maintain it to a 
lifespan equal to that of the wall. Further, through the use of a 
combination of measures, the State DOT could propose some acoustic 
benefit from a quiet pavement, and some acoustic benefit from a lower-
height, less visually intrusive, wall to achieve the overall noise 
reduction goals of that State DOT. The FHWA requests comments on this 
new approach to determine Federal participation.
    In proposed Sec.  772.19(b)(3), FHWA proposes to clarify the 
provision on previous determinations of an abatement measure, as the 
current regulation uses feasible and reasonable as a basis and the 
proposed rule uses effective as a basis.
    The FHWA also invites comments on whether the list of allowable 
noise abatement measures should be retained or if other effective 
measures should be added to the list in proposed Sec.  772.19(c), and 
why.
    The FHWA proposes to add a new Sec.  772.19(d) to explain which 
measures are not eligible noise abatement, codifying FHWA's 
longstanding policy and guidance. Proposed Sec.  772.19(d)(1) would be 
moved from current Sec.  772.15(c)(1) and the term ``landscaping'' 
would be replaced with ``vegetation.'' The FHWA's Highway Traffic 
Noise: Analysis and Abatement Guidance (2011) describes that FHWA does 
not consider the planting of vegetation to be a highway traffic noise 
abatement measure. For example, a 200-foot width of dense vegetation 
can reduce noise by 10 decibels; but it is almost impossible to plant 
enough vegetation to achieve sufficient noise reductions. The planting 
of trees and shrubs provides psychological benefits, visual screening, 
privacy, or aesthetic treatment, but is not highway traffic noise 
abatement.
    Proposed Sec.  772.19(d)(2) and (3) are also from FHWA's Highway 
Traffic Noise: Analysis and Abatement

[[Page 83816]]

Guidance, which states that FHWA highway traffic noise regulations 
limit use of Federal funds to reducing traffic noise impacts and 
providing highway traffic noise abatement benefits. Monetary 
compensation accomplishes neither of these requirements.

Table 1 to Part 772--Traffic Noise Impact Criteria

    The FHWA is proposing multiple changes to table 1. Related changes 
can also be found in Sec. Sec.  772.3 and 772.9.
    The FHWA proposes to rename table 1 ``Traffic Noise Impact 
Criteria'' to better reflect that the noise levels are impact rather 
than abatement criteria, as further explained in footnote 1 to table 1.
    The FHWA proposes to remove the L<INF>10</INF>(h) noise metric. 
Currently, States may choose to use either L<INF>EQ</INF>(h) or 
L<INF>10</INF>(h) but not both on a project to determine noise impacts. 
All States have chosen to use L<INF>EQ</INF>(h), as identified in their 
noise policies. The FHWA requests comments on the decision to remove 
the L<INF>10</INF>(h) noise metric.
    The FHWA is proposing to consolidate the activity categories in 
table 1 from seven to four categories. Category A would remain the 
same. New activity category ``B'' would merge former categories B, C, 
and E, and include noise-sensitive land uses where people learn, live, 
play, work, or worship. New activity category ``C'' would merge former 
categories F and G, and include sites that are not noise-sensitive, 
such as noise generating land uses, undeveloped and unpermitted land 
uses, and vacant and derelict structures. Impact and abatement analysis 
would not be needed for proposed Activity Category C sites, but the 
presence of these lands should be disclosed in the environmental 
document as lands that are not noise sensitive; and sound levels should 
be reported in accordance with Sec.  772.17. Category D would remain a 
subset of certain Activity Category B public non-residential land uses 
where noise-sensitive activities only occur indoors, and which may be 
eligible for either outdoor or indoor noise abatement. Residential land 
uses would remain ineligible for consideration of interior noise 
abatement measures. The FHWA seeks comment on whether to include 
residential land uses under Activity Category D. Example land uses for 
each activity description are provided in table 1.
    The footnotes were also updated to account for the other changes to 
table 1. We have added proposed Footnote 2 to make clear that lands 
that are subject to other agencies' regulations would be able to 
consider impacts and require abatement using different methods than 
under this regulation. This change was made to clarify existing 
practice. In addition, FHWA proposes to move the provision in existing 
Sec.  772.11(c)(2)(i) that requires State DOTs to submit justifications 
for approval of an Activity Category A designation to footnote 3 to 
table 1. Proposed Footnote 4 is the same as current Footnote 3. 
Proposed Footnote 5 clarifies that Activity Category C does not require 
analysis of noise impacts. The FHWA proposes to move the provision in 
existing Sec.  772.11(c)(2)(iv) regarding requirements for indoor 
analysis of Activity Category D to proposed Footnote 6. The FHWA also 
proposes to move the provisions in existing Sec.  772.11(c)(2)(iii) 
through (v) that require State DOTs to ``adopt a standard practice for 
analyzing these land use facilities that is consistent and uniformly 
applied statewide'' to footnote 7 to table 1.
    As previously described, the values in table 1 are also updated to 
be 1 dB below current levels by updating the values in table 1 to 
integrate the most commonly used `Approach level' criteria of 1 dB(A) 
less than the values in table 1 (per the existing Sec.  772.11(e)). The 
purpose of this change is to simplify the regulation by not requiring 
States to take an additional step to apply an approach level. States 
would retain the option to define lower impact criteria and table 1 
would continue to serve as a ceiling. States would continue to retain 
the same regulatory flexibility. This change is also discussed in Sec.  
772.3 Definitions and Sec.  772.9 Analysis of traffic noise impacts. 
This proposed change would simplify the regulation by removing a 
requirement for States to choose an approach level, would incorporate 
that level into the existing table 1, and would retain a State's 
flexibility to choose a lower impact level in its State noise policy.
    The FHWA is seeking comments on the proposed changes to table 1 
pursuant to 23 U.S.C. 109(i) to develop standards for highway noise 
levels compatible with different land uses.

VI. Regulatory Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), and DOT Policies 
and Procedures for Rulemaking

    The FHWA has considered the impacts of this rulemaking under E.O. 
12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, as 
amended by E.O. 14094 (``Modernizing Regulatory Review''), and DOT's 
regulatory policies and procedures. The Office of Information and 
Regulatory Affairs within the Office of Management and Budget (OMB) has 
determined that this rulemaking is not a significant regulatory action 
under section 3(f) of E.O. 12866. Accordingly, OMB has not reviewed it 
under that E.O.
    Based on the estimated economic impacts of this proposed rule as 
summarized in the next section of this preamble and discussed in detail 
in the supporting statement on the economic analysis, the proposed rule 
would not have an annual effect on the economy of $200 million or more. 
The FHWA anticipates that the proposed rule would not adversely affect, 
in a material way, any sector of the economy, productivity, 
competition, or jobs. In addition, these changes would not interfere 
with any action taken or planned by another agency and would not 
materially alter the budgetary impact of any entitlements, grants, user 
fees, or loan programs. The proposed rule may raise novel legal or 
policy issues arising out of the President's priorities.
    This section of the NPRM summarizes the estimated costs, cost 
savings, and acknowledges potential benefits resulting from the 
proposed rule. Details of the economic analysis are set forth in a 
supporting statement accessible in the rulemaking docket (FHWA-2019-
0036).
    The FHWA currently lacks complete data and information needed to 
quantify all of the costs, cost savings, and benefits from this 
proposed rule. Cost savings resulting from this proposed rule that can 
currently be quantified are estimated to be $2.2 million per year at 
both 3 percent and 7 percent discount rates, measured in 2019 dollars. 
The FHWA does not anticipate the proposed rule resulting in any 
additional quantifiable benefits. The FHWA requests data and 
information that could inform the economic analysis for this 
rulemaking, including any estimates of resulting costs, cost savings, 
and benefits at the final rule stage.
    The changes in the proposed rule would result in cost savings 
because of the streamlining and alignment of various processes between 
FHWA and State DOTs. The FHWA; however, lacks the data and information 
on the current time burdens of these processes and the reductions in 
these burdens that would result from the proposed rule. As discussed in 
the supporting statement on the economic analysis, FHWA obtained some 
information by sending a questionnaire to division offices asking about 
the frequency of different types of construction projects and project-
level noise analyses, and about the time burden for FHWA and State DOT

[[Page 83817]]

employees for a typical project-level noise analysis and for noise 
policy approval. Given the information available, FHWA discusses some 
economic impacts of the proposed changes on a qualitative basis only in 
the NPRM and requests information from commenters to inform the 
economic analysis. If useful information is received from this request, 
FHWA will consider quantifying additional impacts in the economic 
analysis of the final rule.
    The FHWA evaluated the proposed changes to the Applicability 
section (proposed Sec.  772.5) and determined that these changes would 
result in cost savings because of the introduction of a project 
exemption process. For the proposed project exemption process, FHWA 
evaluated data from division offices and then assumed an annual total 
of two Type I projects per State would receive an exemption and thus 
not need to conduct a project-level noise analysis. Multiplying this 
value of two projects by the total number of States (52, including the 
District of Columbia and Puerto Rico) resulted in a total annual number 
of 104 Type I projects that would receive an exemption and thus would 
not need to conduct a project-level noise analysis.
    Next, based on information on the hours needed at the Federal and 
State levels to complete a project-level noise analysis, FHWA estimated 
an average cost per project-level noise analysis of $1,138 for FHWA 
employees and $20,335 for State DOT employees. Multiplying this total 
cost by the estimated number of 104 avoided project-level noise 
analyses per year results in a total annual cost savings of $118,387 
for FHWA employees and $2.1 million for State DOT employees. These 
annual cost savings result in total 10-year cost savings of $1.2 
million for FHWA employees and $21.1 million for State DOT employees on 
an undiscounted basis and in 2019 dollars.
    The proposed rule also would make changes to the noise policy 
approval process and proposes three options for these changes. The FHWA 
assumed that the effort spent by State DOT employees would not be 
affected by the rule changes, but that there would be reductions in the 
effort spent by FHWA employees for two of the three proposed options. 
The first proposed option, which is reflected in the proposed rule, 
would require FHWA approval of State noise approval policies and would 
not result in any changes from the status quo in terms of labor by FHWA 
employees. The second proposed option would allow a State to self-
approve its noise policy, and FHWA assumes that this option would 
result in a reduction of 100 percent of the labor spent by FHWA 
employees for this process. The third proposed option would allow a 
State to choose between self-approving its noise policy or having FHWA 
conduct the review and approval. The FHWA assumes that this option 
would result in a reduction of 50 percent of the labor spent by FHWA 
employees for this process, based on the assumption that half of the 
States would choose to self-approve their respective noise policies.
    The potential cost savings of the three proposed options for 
changes to the noise policy approval process range from $0 (for 
proposed option 1) to $367,187 (for proposed option 2) in total over 
the 10-year analysis period. Because FHWA has not identified a 
preferred option, FHWA does not include any cost savings for changes to 
the noise policy approval process in the estimated cost savings for 
this proposed rule. If the final rule reflects proposed option 2 or 
proposed option 3; however, FHWA would expect cost savings associated 
with changes to the noise policy approval process.
    The proposed changes to Sec.  772.7 on Traffic Noise Prediction 
would result in cost savings because of the introduction of a project 
screening process that would reduce the number of noise analyses being 
conducted. Because the screening process is new, FHWA does not have any 
data or information that can be used to estimate the percentage of 
project-level noise analyses likely to be avoided because of project 
screening. The FHWA requests information on the project screening 
process and the percentage of projects likely to be screened out 
because of this process to inform the analysis, and possible 
quantification, of these cost savings at the final rule stage.
    The proposed changes to the Traffic Noise Prediction section are 
also expected to result in cost savings because of changes that would 
allow the use of an updated TNM following FHWA's publication of a 
Federal Register notice, rather than upon completion of a longer 
rulemaking process by revising the reference to a specific model in the 
Code of Federal Regulations (see existing Sec.  772.9(a)). The FHWA, 
however, lacks the data and information needed to quantify this cost 
savings. The FHWA discusses this cost savings only in qualitative terms 
at the NPRM stage.
    The proposed changes to the Analysis of Traffic Noise Impacts 
section (proposed Sec.  772.9) is expected to result in cost savings to 
States because of the simplification of Activity Categories and their 
application to various land uses. The FHWA, however, lacks the data and 
information needed to quantify this cost savings at this time. The FHWA 
requests information on the potential cost savings because of the 
simplification of Activity Categories to inform the analysis, including 
possible quantification, of these cost savings at the final rule stage.
    The proposed changes to the Analysis of Traffic Noise Impacts 
section also could result in increased costs to States because they 
include reducing the substantial maximum noise increase criterion from 
15 dB to 10 dB. The part of a project-level noise analysis that is 
affected by this change is the initial determination of impacts, which 
is a less time-consuming part of the overall effort than consideration 
of potential abatement measures. Roughly 50 percent of States already 
utilize a 10 dB or less substantial noise increase criterion in a State 
noise policy. This change also only affects new alignments, and data 
collected from division offices suggests that new alignments are 
relatively infrequent, with States having less than one new alignment 
project per year on average. Given these various factors, FHWA believes 
that any cost associated with this change would be minimal. The FHWA 
requests information on the potential costs to States because of 
reducing the substantial maximum noise increase criterion from 15 dB to 
10 dB to inform the analysis, and possible quantification, of these 
cost estimates at the final rule stage.
    The proposed change to the Analysis of Traffic Noise Abatement 
section (proposed Sec.  772.11) would result in cost savings to States 
by combining the current criteria of reasonableness and feasibility 
into a single effectiveness criterion. The FHWA, however, lacks data 
and information on how this proposed change is likely to affect State 
DOT employee time spent on a project-level noise analysis. The FHWA 
requests information on the potential cost savings resulting from the 
combining of the reasonableness and feasibility criteria into a single 
effectiveness criterion to inform the analysis, and possible 
quantification, of these expected cost savings at the final rule stage.
    The proposed changes to the Construction Noise section provide that 
a State DOT should conduct quantitative analysis of impacts on any 
projects where severe highway construction noise impacts are likely to 
occur because of the projects' scale and scope, or when the public has 
raised serious concerns about construction noise. These analyses would 
encourage

[[Page 83818]]

the use of construction noise abatement techniques on these projects. 
The FHWA believes the proposed changes reflect current practice. 
Therefore, FHWA does not expect any costs or cost savings to result 
from them. The FHWA requests comments and information about any 
possible costs or cost savings about the construction noise provision.
    The proposed changes to the Information for Local Officials section 
(proposed Sec.  772.17) are intended to simplify the discussion of the 
requirements and to remove repetitious language. The FHWA does not 
expect any costs or cost savings to result from these minor language 
revisions.
    The proposed changes to the Federal Participation section (proposed 
Sec.  772.19) encourage States to consider the most acoustically and 
cost-effective noise abatement measures, and to promote the use of new 
technologies that could result in lower noise levels and cost savings. 
This section also notes that Federal-aid funds may participate in the 
costs of noise abatement measures or a combination of measures up to 
the Federal share payable on the Federal-aid highway on which the 
project is located. The changes in this section could result in cost 
savings, but FHWA currently lacks the data and information that would 
be needed to estimate potential cost savings. The FHWA discusses these 
potential cost savings on a qualitative basis and requests information 
that may facilitate a quantification of these expected cost savings at 
the final rule stage.
    The proposed changes to Table 1 to Part 772--Traffic Noise Impact 
Criteria could result in cost savings. Changes include the reduction of 
Noise Impact Criteria by 1dB(A) below the current levels, thus reducing 
the need for a State to define an `Approach Criteria' in their Noise 
Policy, and making this a completely optional task, where it is a 
requirement under the existing regulation. In addition, table 1 no 
longer includes the L<INF>10</INF> noise metric. This would not result 
in any changes because no State uses the L<INF>10</INF> metric, all 
States use L<INF>EQ</INF>. The proposed changes to table 1 also include 
consolidation of the existing Activity Categories into broader 
conceptual categories with examples listed. This should allow a State 
to more easily make a determination of which Activity Category, and 
impact criteria, applies to any given land use, thus reducing 
consultation time with FHWA. Other changes to table 1 include renaming 
the table and adding explanatory footnotes of content that used to be 
in the body of the rule; no costs or savings are expected from these 
changes. Given the lack of information on the cost savings that the 
changes to table 1 would achieve, FHWA discusses these potential cost 
savings on a qualitative basis. Again, FHWA requests information that 
may facilitate a quantification of these cost savings at the final rule 
stage.
    The proposed rule does not result in any currently quantifiable 
costs or benefits, only cost savings. The proposed rule generates total 
10-year cost savings of $19.1 million or $15.7 million in 2019 dollars 
at discount rates of 3 percent or 7 percent, respectively. On an 
annualized basis, the proposed rule results in $2.2 million in cost 
savings at both 3 percent and 7 percent discount rates, again in 2019 
dollars. Roughly 95 percent of the cost savings generated by the 
proposed rule accrue to State DOTs, and the remaining roughly 5 percent 
accrues to FHWA. Additional details on the estimated cost savings of 
this proposed rule can be found in the economic analysis.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), FHWA has evaluated the effects of this proposed rule 
on small entities and has determined that the action is not anticipated 
to have a significant economic impact on a substantial number of small 
entities. The proposed rule affects only States, and States are not 
included in the definition of small entity set forth in 5 U.S.C. 601. 
Therefore, the Regulatory Flexibility Act does not apply, and FHWA 
certifies that the action will not have a significant economic impact 
on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub L. 104-4, 109 Stat. 48, 
March 22, 1995) as it will not result in the expenditure by State, 
local, Tribal governments, in the aggregate, or by the private sector, 
of $168 million or more in any one year (2 U.S.C. 1532 et seq.). In 
addition, 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 rule has been analyzed in accordance with the 
principles and criteria contained in E.O. 13132 dated August 4, 1999, 
and FHWA has determined that this action would not have a substantial 
direct effect of sufficient federalism implications on the States. The 
FHWA has also determined that this action would not preempt any State 
law or regulation or affect the States' ability to discharge 
traditional State government functions.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from OMB for each 
collection of information they conduct, sponsor, or require through 
regulations. The FHWA has determined that this proposed rule does not 
contain new collection of information requirements for the purposes of 
the PRA. The OMB has approved a collection of information for the Noise 
Barriers Inventory Request (OMB Control No. 2125-0645) referenced in 
Sec.  772.15(f).

National Environmental Policy Act

    The FHWA has analyzed this proposed rule for the purpose of the 
NEPA of 1969, as amended (42 U.S.C. 4321 et seq.), and has determined 
that this action would not have any effect on the quality of the 
environment and meets the criteria for the CE at 23 CFR 771.117(c)(20), 
which applies to the promulgation of rules and regulations. 
Categorically excluded actions meet the criteria for CEs under the 
Council on Environmental Quality regulations under 23 CFR 771.117(a) 
and normally do not require any further NEPA approvals by FHWA. The 
FHWA does not anticipate any adverse impacts from this proposed rule.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this proposed rule under E.O. 13175, dated 
November 6, 2000, and believes that the action would not have 
substantial direct effects on one or more Indian Tribes; would not 
impose substantial direct compliance costs on Indian Tribal 
governments; and would not preempt Tribal laws. Therefore, a Tribal 
summary impact statement is not required.

Executive Order 12898 (Environmental Justice)

    The E.O. 12898 requires that each Federal Agency make achieving 
environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities

[[Page 83819]]

and low-income populations. The FHWA has determined that this proposed 
rule does not raise any environmental justice issues.

Regulation Identification Number

    A 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.

Rulemaking Summary, 5 U.S.C. 553(b)(4)

    As required by 5 U.S.C. 553(b)(4), a summary of this rulemaking can 
be found in the Abstract section of the Department's Unified Agenda 
entry for this rulemaking at [https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2125-AF78].

List of Subjects in 23 CFR Part 772

    Grant programs--transportation, Highways and roads, Noise control, 
Reporting and recordkeeping requirements.

Kristin R. White,
Acting Administrator, Federal Highway Administration.

    In consideration of the foregoing, FHWA proposes to revise 23 CFR 
part 772 to read as follows:

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

Sec.
772.1 Purpose.
772.3 Definitions.
772.5 Applicability.
772.7 Traffic noise prediction.
772.9 Analysis of traffic noise impacts.
772.11 Analysis of traffic noise abatement.
772.13 Construction noise.
772.15 Documentation and reporting.
772.17 Information for local officials.
772.19 Federal participation.
Table 1 to Part 772--Traffic Noise Impact Criteria

    Authority:  23 U.S.C. 109(h) and (i); 42 U.S.C. 4331 and 4332; 
sec. 339(b), Pub. L. 104-59, 109 Stat. 568, 605; 49 CFR 1.48(b).


Sec.  772.1   Purpose.

    (a) To provide highway traffic and construction noise standards to 
help protect the public's health, welfare, and livability in the 
planning, design, construction, and operation of highways pursuant to 
title 23 of the U.S. Code.
    (b) The highway traffic noise prediction requirements, noise 
analyses, noise impact and abatement criteria, and requirements for 
informing local officials in this part constitute the noise standards 
mandated by 23 U.S.C. 109(i). All highway projects which are developed 
in conformance with this part shall be deemed to be in accordance with 
FHWA noise standards.


Sec.  772.3   Definitions.

    Benefitted receptor. The recipient of an abatement measure that 
receives a noise reduction at or above the noise reduction requirement.
    Common noise environment. A group of receptors within the same 
Activity Category in table 1 to this part that are 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, and crossroads.
    Cost average. Arithmetic average cost of abatement among benefitted 
receptors for an entire project.
    Design year. The future year used to estimate the probable traffic 
volume for which a highway is designed.
    Exempt project. A Federal or Federal-aid highway project that meets 
the classifications of a Type I project but is expected to have no 
noise impact and is thus exempt from traffic noise and abatement 
analysis.
    Existing noise levels. The worst noise hour resulting from the 
combination of natural and mechanical sources and human activity 
usually present in a particular area.
    Impacted Receptor. A receptor that has a traffic noise impact.
    L<INF>EQ.</INF> The equivalent steady-state sound level in a stated 
period of time that contains the same acoustic energy as the time-
varying sound level during the same time period. L<INF>EQ</INF>(h) is 
the hourly value of L<INF>EQ</INF>.
    Noise analysis area. The area within and beyond the project limits 
that has Type I project characteristics and that requires a noise 
analysis. The noise analysis area shall completely encompass the area 
where alterations and construction will occur, and shall also include 
any area beyond the construction limits where design year traffic may 
contribute to noise impacts from the project.
    Noise barrier. A physical obstruction that is constructed between 
the highway noise source and the noise sensitive receptor(s) that 
lowers the noise level, including standalone noise walls, noise berms 
(earth or other material), and combination berm/wall systems.
    Noise Impact Criteria. The values in table 1 to this part or lower 
values as specified in a State noise policy.
    Noise policy. The State-specific document or documents containing 
the State DOT's approach to noise analyses in compliance with this 
part, including by describing statewide processes for project-level 
noise analysis, and defining any State-specific options available in 
this part.
    Noise reduction requirement. Any measure, or combination of 
measures, that mitigates noise impacts to receptors by reducing design 
year noise levels by 5 to 10 dB(A) as defined in the State DOT's noise 
policy.
    Permitted. A definite commitment to develop land with an approved 
specific design of land use activities as evidenced by the issuance of 
a building permit, or the equivalent in cases where a building permit 
is not applicable to that type of development.
    Property owner. An individual or group of individuals that holds a 
title, deed, or other legal documentation of ownership of a property or 
a residence.
    Receiver. A representative location of a noise sensitive area(s) in 
traffic or construction noise models, for any of the land uses listed 
in table 1 to this part. A receiver may represent multiple receptors if 
they share a common noise environment.
    Receptor. A discrete, real-world location of a noise sensitive 
area(s), for any of the land uses listed in table 1 to this part.
    Recipient. A recipient means an entity that receives a Federal 
award directly or via a pass-through entity from the Federal Highway 
Administration. The award can be apportioned or discretionary funding, 
or an approval action. For the purposes of the part, recipients do not 
include federally recognized Tribes.
    Residence. A dwelling unit, which is either a single-family 
structure or each dwelling unit in a multifamily structure.
    State Department of Transportation. A department or agency 
maintained in conformity with 23 U.S.C. 302 and charged under State law 
with the responsibility for highway construction (as defined in 23 
U.S.C. 101); and that is authorized by the laws of the State to make 
final decisions in all matters relating to, and to enter into, all 
contracts and agreements for projects and activities to fulfill the 
duties imposed by title 23 of the U.S. Code, this title, and other 
applicable Federal laws and regulations.
    Statement of likelihood. A statement provided in the Categorical 
Exclusion (CE), the Finding of No Significant Impact (FONSI), the 
Record of Decision

[[Page 83820]]

(ROD), or the Supplemental Environmental Impact Statement (EIS) based 
on the noise impact and abatement analysis completed at the time the 
environmental document is being approved.
    Substantial noise increase. An increase in noise levels of between 
5 and 10 dB(A), as specified in the State DOT's noise policy, in the 
design year over the existing noise level.
    Traffic noise impacts. Design year build condition noise levels 
that meet or exceed the Noise Impact Criteria listed in table 1 to this 
part; and/or design year build condition noise levels that create a 
substantial noise increase over existing noise levels.
    Type I project. A Federal or Federal-aid highway project likely to 
cause traffic noise impacts during regular operation of the facility in 
the design year.
    Type II project. A Federal or Federal-aid highway project for 
retrofit noise abatement on an existing highway in the absence of an 
associated highway project, when such a project makes use of 
apportioned funding sources from FHWA. Projects utilizing discretionary 
grant funds are not considered Type II projects.
    Type III project. A Federal or Federal-aid highway project that 
does not meet the classifications of a Type I or Type II project. A 
Type III project is not likely to change the noise environment.


Sec.  772.5  Applicability.

    (a) This part applies to all Federal or Federal-aid Highway 
Projects authorized under title 23 of the U.S. Code. Therefore, this 
part applies to:
    (1) Any highway project or multimodal project that requires FHWA 
approval regardless of funding sources, or is funded with Federal-aid 
highway funds; and
    (2) All Type I projects, unless this part specifically indicates 
that a section only applies to Type II or Type III projects.
    (b) A Type I project includes:
    (1) The construction of a roadway on a new location.
    (2) The substantial physical alteration of an existing roadway, 
including:
    (i) Substantial horizontal alteration. A project that halves the 
distance between the traffic noise source and the closest receptor 
between the existing condition to the future build condition.
    (ii) Substantial vertical alteration. A project that removes 
shielding, thereby exposing the line-of-sight between the receptor and 
the traffic noise source. This is done by either altering the vertical 
alignment of the highway or by altering the topography between the 
highway traffic noise source and the receptor.
    (iii) Substantial abatement alteration. A project that results in 
the alteration of the existing highway surface, through the 
installation of a different pavement surface, or of the existing right-
of-way, through the installation of a noise barrier, for the purpose of 
providing noise abatement to existing communities along existing 
roadways; when such projects are funded by discretionary grants under 
title 23 of the U.S. Code or administered as if Federal-aid projects 
under 23 U.S.C. chapter 1.
    (3) A substantial change in the operations of an existing roadway 
because of the project, including:
    (i) The addition of a through-traffic lane(s). This includes the 
addition of a through-traffic lane that functions as a High Occupancy 
Toll (HOV) lane, High-Occupancy Toll (HOT) lane, bus lane, or truck 
climbing lane.
    (ii) The addition of an auxiliary lane.
    (iii) The addition or relocation of interchange lanes or ramps 
added to a quadrant to complete an existing partial interchange.
    (iv) Restriping existing pavement for the purpose of adding a 
through-traffic lane or an auxiliary lane.
    (v) The addition of a new or substantial alteration of a weigh 
station, rest area, ride-share lot or toll plaza. A substantial 
alteration may include increased capacity for overnight parking, or 
relocation of parking facilities closer to noise sensitive land uses.
    (4) Other projects which may cause a traffic noise impact during 
regular operation.
    (c) Type I projects that are not likely to change the noise 
environment during regular operation of the facility in the design year 
may be exempted from analysis.
    (1) The following projects are exempted Type I projects:
    (i) The addition of, or conversion to, an all-electronic toll plaza 
where vehicles do not stop or accelerate away.
    (ii) An auxiliary lane when it is a turn lane or less than 2,500 
feet in length, and thus does not function as a through lane.
    (iii) The addition of a through traffic lane when:
    (A) Design speed limit is 35 mph or less; and
    (B) Vehicular restrictions that would cause the volume of traffic 
using these lanes to be much lower than the main lanes, including 
autos-only, bus-only, no trucks allowed.
    (iv) A substantial vertical alteration when such alteration results 
in a newly blocked line of sight between the roadway and the receptor, 
such as moving a roadway into a cut.
    (2) Any project that would otherwise qualify as exempt, which could 
involve unusual circumstances, is a Type I project.
    (3) The recipient, in its discretion, may choose to determine 
impacts and consider abatement for any project that would otherwise 
qualify as exempt.
    (d) The development and implementation of Type II projects are not 
mandatory requirements of 23 U.S.C. 109(i).
    (1) For a Type II project to be eligible for Federal-aid funding, 
the State DOT must develop and implement a Type II program in 
accordance with Sec.  772.17(b). Participation in the Type II program 
is optional.
    (2) If a State DOT chooses to participate in a Type II program, the 
State DOT 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 State DOT is 
allowed to use Federal-aid funds for a project in the program. The 
State DOT shall reanalyze the priority system on a regular interval, 
not to exceed 5 years.
    (e) For a Type III project, a recipient is not required to complete 
a noise analysis or consider abatement measures.
    (f) The State DOT shall develop a noise policy in conformance with 
this part within 6 months of [EFFECTIVE DATE OF FINAL RULE]. The State 
DOT shall implement the approved noise policy upon approval or within 
12 months of [EFFECTIVE DATE OF FINAL RULE], whichever comes first, and 
shall apply the policy uniformly and consistently statewide.
    (1) Non-State DOT recipients and all subrecipients carrying out a 
project funded by a discretionary grant under title 23 of the U.S. 
Code, or administered as if a Federal-aid project under 23 U.S.C. 
chapter 1, must use their State DOT's FHWA-approved noise policy for 
highway traffic and construction noise analysis to comply with the 
requirements of this part. Multi-State regional recipients will apply 
the State DOT noise policy that corresponds with the roadway's 
location, this may result in two or more policies applying to a single 
project if it crosses multiple State borders.
    (2) [Reserved]
    (g) The State DOT noise policy must define and include the 
following criteria:
    (1) Noise Impact Criteria in table 1 to this part or lower values 
that would be applied consistently statewide. State whether the State 
DOT will use the values in table 1 to this part to

[[Page 83821]]

determine the presence of noise impacts, or if they will use lower 
values. If using lower values, define these.
    (2) Substantial noise increase criterion between 5 and 10 dB(A). 
Noise levels above the defined threshold are a noise impact.
    (3) The noise model and tools used for noise analysis and whether 
they are consistent with and conform to the requirements listed in 
Sec.  772.7.
    (4) Method to calculate and place non-residential receptors and 
definition of worst noise hour.
    (5) The procedure on the rounding of results.
    (6) Evaluation criteria for abatement options, including what 
constitutes effective abatement, and the basis for determination, 
described under Sec.  772.11(e).
    (7) Procedures for providing project information to local 
officials.
    (8) If the State participates in a Type II program, the factors for 
a priority system.
    (9) Methods for considering construction noise impacts and 
abatement.
    (h) Projects for which traffic noise prediction activities are 
initiated by [1 YEAR AFTER EFFECTIVE DATE OF FINAL RULE], or initiated 
after approval of the State's noise policy, whichever occurs first, 
shall be developed in accordance with this part. The State DOT may also 
choose to apply this part to any project at any stage after approval of 
the State's noise policy.


Sec.  772.7   Traffic noise prediction.

    (a) Any analysis required by this part must use the latest version 
of FHWA Traffic Noise Model (TNM); or any other model determined by 
FHWA to be consistent with the methodology of TNM.
    (1) FHWA will announce the availability of a new or updated version 
of the TNM by publishing a Federal Register notice, which will also 
specify a grace period to facilitate the transition to its use.
    (2) Projects for which traffic noise prediction activities have 
been initiated under the previous version of the model can be completed 
under the previous version.
    (3) Except as provided in paragraph (a)(2) of this section, a 
recipient must use the latest version of TNM on any new analysis as 
described in Sec.  772.11 beginning after the last day of the grace 
period specified in a Federal Register notice announcing the 
availability of that version.
    (b) A recipient shall use average pavement type in TNM for future 
noise level prediction unless recipient substantiates the use of a 
different pavement type and obtains FHWA approval.
    (c) In predicting noise levels and assessing noise impacts, a 
recipient shall use the following traffic characteristics that would 
yield the worst traffic noise impact:
    (1) For Type I projects, the worst traffic-noise hour for the 
design year.
    (2) For Type II projects, the worst noise hour, as defined in Sec.  
772.3 for existing noise levels.
    (d) State DOTs shall define and include a statewide method for 
calculating and placing receptors in non-residential land uses in their 
noise policy. For residential land uses, each single-family structure 
and each dwelling unit in a multifamily structure shall be counted as 
one receptor when determining impacted and benefitted receptors.
    (e) A recipient may screen projects to determine the likelihood of 
traffic noise impacts. If traffic noise screening is used, the 
following provisions apply.
    (1) TNM, or any other model or tool determined by FHWA as compliant 
with the methodology of TNM for screening purposes, shall be used for 
traffic noise screening to determine the likelihood of traffic noise 
impacts. A screening tool that produces the same results as TNM for the 
same model inputs within 0.1 dB will be considered compliant.
    (2) A recipient shall conduct the screening analysis on the entire 
noise analysis area for the project. The same model or tool used to 
determine the existing condition shall also be used to analyze the 
design year condition(s).
    (3) A screening analysis shall include the following parameters, if 
applicable:
    (i) Existing noise level;
    (ii) Facility type;
    (iii) Length of facility;
    (iv) Number of lanes in each travel direction;
    (v) Lane width;
    (vi) Roadway design capacity;
    (vii) Vehicle fleet mix;
    (viii) Speed;
    (ix) Roadway grade;
    (x) Type of ground between roadway and receiver;
    (xi) Land (urban/suburban/rural) areas;
    (xii) Noise Impact Criteria Activity Category; and
    (xiii) Distance of nearest receiver from the roadway.
    (4) The screening analysis may also include additional appropriate 
parameters.
    (5) Type I projects with complex attributes are not appropriate for 
screening analysis and the recipient shall apply the provisions in 
Sec.  772.9. Complex attributes include:
    (i) The construction of a roadway on a new location;
    (ii) Ground elevation changes because of hills, valleys, and other 
undulations greater than 3 feet that do not correlate to the grade 
change in the roadway;
    (iii) Large areas of trees that fully obscure the line of sight 
between the roadway and the source;
    (iv) Intervening buildings, barriers, or other substantial 
structures;
    (v) Intervening ground with multiple ground types (e.g., water, 
pavement, grass, etc.); or
    (vi) Where the deviation between any roadway segment and a 
straight-line approximation of the roadway is greater than 25 degrees.
    (6) Detailed traffic noise analysis as described in Sec.  772.9 is 
not required if both of the following screening conditions are 
satisfied:
    (i) If the result of screening is at least 5 dB less than the Noise 
Impact Criteria in table 1 to this part for the appropriate activity 
category; and
    (ii) If the result of screening does not exceed the substantial 
noise increase criteria determined in the State DOT noise policy.


Sec.  772.9   Analysis of traffic noise impacts.

    The recipient shall determine and analyze expected traffic noise 
impacts for all Type I and II projects.
    (a) The analysis of traffic noise impacts shall include:
    (1) Identification of the noise analysis area to determine all 
traffic noise impacts.
    (2) Identification of existing land uses and activities that may be 
affected by noise from the highway, including undeveloped land that is 
determined to be permitted.
    (3) Validation of the noise model with field measurement of noise 
levels using an ANSI Type I or Type II integrating sound level meter. 
The model is validated if existing highway traffic noise level and 
predicted highway traffic noise level for the existing condition are 
within +/-3 dB(A).
    (b) A recipient shall complete a traffic noise analysis for each 
alternative under detailed study and each Activity Category listed in 
table 1 to this part that is present in the noise analysis area.
    (1) For projects on new alignments, determine existing noise levels 
by field measurements, and predict design year traffic noise levels 
using an FHWA-approved noise model.
    (2) For projects on existing alignments, predict existing and 
design year traffic noise levels using an FHWA-approved noise model.
    (c) In determining traffic noise impacts, a recipient shall give 
primary

[[Page 83822]]

consideration to exterior areas where frequent human use occurs.
    (1) For Type I projects, traffic noise impacts shall be determined 
for the design year for the build alternative. Traffic noise impacts 
shall be determined by analyzing whether there is a substantial noise 
increase, or noise levels in exceedance of the Noise Impact Criteria in 
table 1 to this part.
    (2) For Type II projects, traffic noise impacts shall be determined 
from current year conditions.


Sec.  772.11   Analysis of traffic noise abatement.

    (a) When traffic noise impacts are identified, noise abatement 
measures that reduce traffic noise impacts shall be considered and 
evaluated for effectiveness.
    (1) In abating traffic noise impacts, a recipient shall give 
primary consideration to exterior areas where frequent human use 
occurs.
    (2) With the exception of noise insulation, the recipient shall 
maintain the noise abatement measure in perpetuity.
    (b) Any existing noise abatement measure that is affected, up to 
and including removal, because of a new Type I, II, or III project 
shall be replaced to provide noise abatement equal to or better than 
what was present before, unless:
    (1) The public no longer desires such abatement according to 
paragraph (d)(4) of this section; or
    (2) The land use has changed to a non-sensitive activity, as 
defined in table 1 to this part, Activity Category C.
    (c) Each State DOT shall develop, and describe in its noise policy, 
what constitutes effective abatement under paragraph (e) of this 
section.
    (d) The analysis of traffic noise abatement shall include the 
recipient's determination of the effectiveness of implementing the 
abatement measure(s).
    (e) All four required factors described in this paragraph for 
effective noise abatement shall be met in order for a noise abatement 
measure to be deemed effective. Effectiveness includes:
    (1) Engineering effectiveness. The recipient shall make a 
determination that it is possible to design, construct, and maintain 
the abatement measure. Factors to consider include safety, barrier 
height, topography, drainage, utilities, maintenance of the abatement 
measure, and access to adjacent properties.
    (2) Acoustic effectiveness. When noise abatement measure(s) are 
being considered, a recipient shall achieve a noise reduction 
requirement of at least 5 to 10 dB(A), as defined in its State noise 
policy. The State DOT shall explain the basis for the determination of 
its noise reduction requirement in its noise policy. Receptors that 
achieve this reduction are considered benefitted. The State DOT shall 
define whether this reduction must be achieved by a simple majority of 
impacted receptors, for two or more impacted receptors, or a 
combination of these two criteria, and explain the basis for this 
determination in its noise policy.
    (3) Cost effectiveness. Each State DOT shall determine, and obtain 
FHWA approval for, the allowable cost or equivalent quantity of 
abatement by determining a baseline cost effectiveness value. The State 
DOT may determine a separate baseline cost effectiveness value for each 
type of abatement measure. The State DOT shall reanalyze the baseline 
cost effectiveness value on a regular interval, not to exceed 5 years.
    (i) A State DOT has the option of justifying, for FHWA approval, 
different cost effectiveness values for particular geographic areas 
within the State, however, the State DOT must use the same cost 
effectiveness/construction cost ratio statewide.
    (ii) A recipient has the option to cost average noise abatement 
among common noise environments if no single common noise environment 
exceeds two times the State DOT's cost effectiveness criteria and 
collectively all common noise environments being averaged do not exceed 
the State DOT's baseline cost effectiveness value.
    (iii) Partial funding of a noise abatement measure by a third party 
is not allowed on a Federal or Federal-aid Type I or Type II project if 
the funding is required for the measures to be considered cost 
effective, except donation of utility relocation services by a non-
receptor utility and of real property by a non-receptor third party, 
needed to construct a noise abatement measure, are acceptable. Funding 
of the entire cost of a noise abatement measure by any third party is 
allowed on a Federal or Federal-aid Type I or Type II project 
regardless of the measure's cost effectiveness. Discretionary grants 
under title 23 of the U.S. Code are not considered third party funding 
sources. Third party donation of the cost of functional enhancements, 
such as absorptive treatment and access doors, or of aesthetic 
enhancements, to a noise abatement measure already determined effective 
is acceptable.
    (4) Consideration of the viewpoints of the property owners and 
residents of the benefitted receptors. The recipient shall solicit the 
viewpoints of all of the benefitted receptors and document a decision 
on either desiring or not desiring the noise abatement measure. The 
recipient shall consider tenants or renters equally when analyzing 
noise abatement. Only the residents and property owners at benefitted 
receptors can make a determination on desirability of noise abatement 
on Federal highway right-of-way. A simple majority of respondents must 
desire the abatement for it to be constructed.
    (i) The State DOT shall not require a minimum response rate as to 
whether to construct an abatement measure, unless there are two or more 
outreach efforts to directly contact the benefitted receptors and 
obtain their viewpoints.
    (ii) The State DOT shall document requirements for outreach 
efforts, and where necessary a minimum response rate, in the State 
noise policy and apply the requirements uniformly statewide.
    (5) Optional factors. A State DOT can also include optional factors 
in its noise policy and apply them to projects. The following optional 
factors can only be used to increase the allowable cost of abatement as 
defined in paragraph (e)(3) of this section:
    (i) Date of development.
    (ii) Length of time receptors have been exposed to highway traffic 
noise impacts.
    (iii) Exposure to higher absolute highway traffic noise levels.
    (iv) Changes between existing and future build conditions.
    (v) Percentage of mixed zoning development.
    (vi) Use of noise compatible planning concepts by the local 
government.
    (vii) Whether the abatement provides additional environmental or 
social benefits.
    (f) The date of public knowledge provides local officials and the 
community an official notice that this project is approved and under 
active development. It is first established on the date of approval of 
the CE, FONSI, ROD, or Supplemental EIS, as described in part 771 of 
this chapter.
    (1) If undeveloped land is not permitted for development by the 
date of public knowledge, the recipient shall determine noise levels in 
accordance with Sec.  772.7 and document the results in the project's 
environmental document and technical noise memorandum.
    (2) Federal participation in noise abatement measures will not be 
considered for lands that are not permitted by the date of public 
knowledge.
    (3) Any lands permitted for noise-sensitive development before the 
date of public knowledge must be considered for potential impacts from 
the project,

[[Page 83823]]

and if such impacts occur, must be considered for noise abatement.
    (g) The date of public knowledge will be updated when project-based 
assumptions or data become out-of-date. As such, it will be reset under 
the following conditions:
    (1) If more than 5 years has elapsed since the date of public 
knowledge was established or last updated and the project has not 
initiated construction; or
    (2) If a recipient identifies a design or operational change that 
results in a change in noise impacts to a receptor during a 
reevaluation pursuant to Sec.  771.129 of this chapter.
    (h) If the date of public knowledge is reset in accordance with 
paragraph (g) of this section, then all noise-sensitive development in 
the noise analysis area, including noise-sensitive development that was 
built or permitted since the date of public knowledge was previously 
established, must be evaluated for noise impacts and abatement in 
accordance with this part.


Sec.  772.13   Construction noise.

    (a) For any project where severe highway construction noise impacts 
are likely to occur because of the scale and scope of the project, or 
when the public has expressed serious concern about construction noise, 
the recipient should conduct quantitative analysis of impacts as early 
in the project development process as the information is available.
    (b) For all Type I and II projects, a recipient shall:
    (1) 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.
    (2) Determine the specific monitoring and mitigation measures that 
are needed to minimize or eliminate adverse construction noise impacts 
to the community. This determination shall include a weighing of the 
social, economic, and environmental benefits and adverse effects of the 
abatement measures.
    (3) Incorporate the needed abatement measures in the plans and 
specifications.
    (c) For Type III projects, a recipient may choose to perform 
analyses as described in paragraph (b) of this section.


Sec.  772.15   Documentation and reporting.

    (a) The recipient shall document in the technical noise memorandum 
the noise levels for the existing and design year build conditions for 
all activity categories described in table 1 to this part, consistent 
with Sec.  772.9.
    (b) The technical noise memorandum, including for design-build 
projects, shall document all considered and proposed noise abatement 
measures for inclusion in the project's environmental document. Final 
design of design-build noise abatement measures shall be based on the 
preliminary noise abatement design developed in the technical noise 
memo. Noise abatement measures shall be considered, developed, and 
constructed in accordance with this standard and in conformance with 
the provisions of Sec.  636.109 of this chapter.
    (c) Before adoption of a CE, FONSI, or ROD, the environmental 
document shall include a Statement of Likelihood regarding noise 
impacts and abatement. For the NEPA reviews, this analysis shall be 
completed to the extent that design information on the alternative(s) 
under study in the environmental document is available at the time the 
environmental document is completed.
    (1) The Statement of Likelihood shall identify:
    (i) All locations where noise impacts are predicted to occur.
    (ii) All locations with noise abatement that is preliminarily 
effective, including a physical description of the abatement being 
proposed.
    (iii) All locations with impacts that have no effective noise 
abatement alternative.
    (2) The Statement of Likelihood shall also indicate that the 
determination of effective traffic noise abatement in accordance with 
Sec.  772.11 may change because of changes in the project design after 
approval of the environmental document; and that the final 
determination on the construction of the abatement measure(s) is made 
during the completion of the project's final design and public 
involvement processes.
    (d) FHWA and recipients will not approve project plans and 
specifications unless all environmental commitments for effective 
traffic noise abatement, determined in accordance with Sec.  772.11, 
are incorporated into the plans and specifications to reduce the noise 
impact on existing activities, developed lands, or undeveloped lands 
for which development is permitted.
    (e) Recipients shall also incorporate any selected construction 
noise abatement measures in the plans and specifications.
    (f) Each State DOT shall maintain an inventory of all constructed 
noise abatement measures, including those built by other recipients in 
its borders. These other recipients shall submit their information to 
their State DOT at the end of construction for their project. FHWA will 
collect this information from the State DOT in accordance with OMB's 
Information Collection requirements. The inventory shall include the 
following parameters:
    (1) Location (State, county, city, route).
    (2) Type of abatement.
    (3) Year of construction.
    (4) Cost (overall cost, unit cost per/sq. ft.).
    (5) Average height (if applicable).
    (6) Total length (if applicable).
    (7) Total area (if applicable).
    (8) Material(s) used.
    (i) For noise walls, these are typically: precast concrete, block, 
cast in place concrete, brick, metal, wood, fiberglass, plastic 
(transparent, opaque, other), or combination of two or more materials.
    (ii) For berms, these are typically: earth, rubble, and/or leftover 
construction materials.
    (9) Features (for noise walls, these are typically: absorptive or 
reflective surface texture; or features such as overlaps, or 
maintenance access doorways).
    (10) Foundation (For noise barriers, these are typically: ground 
mounted or on structure).
    (11) Average insertion loss/noise reduction as reported by the 
model in the noise analysis.
    (12) Land use(s) and activity category(ies) protected.
    (13) Project type (Type I, Type II, and optional project types such 
as State-funded, county-funded, tollway/turnpike-funded, other, or 
unknown).


Sec.  772.17   Information for local officials.

    (a) To minimize future traffic noise impacts on currently 
undeveloped lands of Type I projects, a recipient shall inform local 
officials within whose jurisdiction the highway project is located, of:
    (1) Noise compatible planning concepts;
    (2) The distance from the edge of the nearest travel lane of the 
highway improvement to the point at which future noise levels meet the 
Noise Impact Criteria for each Activity Category in table 1 to this 
part, for undeveloped lands or properties within the project limits; 
and
    (3) Non-eligibility for Federal-aid participation of a Type II 
project as described in Sec.  772.19(b).
    (b) If a State DOT chooses to participate in a Type II noise 
program, the State DOT shall have a statewide outreach program to 
inform local officials and the public of the items in paragraphs (a)(1) 
through (3) of this section.
    (c) FHWA TNM noise contours, or any other model or tool determined 
by FHWA as compliant with the

[[Page 83824]]

methodology of FHWA TNM, may be used for land use planning to comply 
with paragraphs (a)(1) through (3) of this section.


Sec.  772.19   Federal participation.

    (a) Type I and Type II projects. Title 23 of the U.S. Code 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 effective 
pursuant to Sec.  772.11(e).
    (b) Type II projects. (1) No funds made available out of the 
Highway Trust Fund may be used to construct Type II noise barriers, as 
defined by this part if such noise barriers were not part of a project 
approved by FHWA before November 28, 1995.
    (2) Title 23 of the U.S. Code funds are available for Type II 
projects along lands that were developed or were under substantial 
construction before approval of the acquisition of the rights-of-ways 
for, or construction of, the existing highway.
    (3) FHWA will not approve a noise abatement measure for a location 
where a previous determination of such a measure was:
    (i) Not ``feasible and reasonable'' for a Type I project prior to 
the effective date of this part.
    (ii) Not ``effective'' for a Type I project under this part.
    (c) Eligible noise abatement measures. Federal-aid funds may 
participate in the costs of noise abatement measures or a combination 
of measures up to the Federal share payable on the Federal-aid highway 
on which the project is located, and based on other applicable program 
requirements. The measures or combination of measures which may be 
incorporated into a Type I or Type II project to reduce traffic noise 
impacts include, but are not limited to:
    (1) Construction of noise barriers, including acquisition of 
property rights, either within or outside the highway right-of-way.
    (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.
    (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 Activity Category D land use facilities 
listed in table 1 to this part. Post-installation maintenance and 
operational costs for noise insulation are not eligible for Federal-aid 
funding.
    (d) Ineligible noise abatement measures. Federal-aid funds may not 
participate in the costs of the following measures:
    (1) Modifying the vegetation in an area of land alone.
    (2) Payment or compensation for a highway traffic noise impact 
through the purchase of a noise easement from a property owner.
    (3) Monetary compensation to a property owner in lieu of noise 
abatement.

                               Table 1 to Part 772--Traffic Noise Impact Criteria
                                [Hourly A-weighted sound level decibels (dB(A))]
----------------------------------------------------------------------------------------------------------------
                                   Activity
                                   criteria
       Activity category         (LEQ(h)) \1\        Evaluation location            Activity description \2\
 
----------------------------------------------------------------------------------------------------------------
A \3\..........................            56  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 \4\ \7\......................            66  Exterior.......................  Noise-sensitive land uses where
                                                                                 people learn, live, play, work,
                                                                                 or worship, and where reduced
                                                                                 noise levels are necessary for
                                                                                 the land use to serve its
                                                                                 intended purpose. Examples
                                                                                 include but are not limited to:
                                                                                 active sport areas,
                                                                                 amphitheaters, auditoriums,
                                                                                 campgrounds, cemeteries, day
                                                                                 care centers, hospitals,
                                                                                 hotels, libraries, medical
                                                                                 facilities, motels, offices,
                                                                                 parks, picnic areas, places of
                                                                                 worship, playgrounds, public
                                                                                 meeting rooms, public or
                                                                                 nonprofit institutional
                                                                                 structures, radio studios,
                                                                                 recording studios, recreation
                                                                                 areas, residential areas,
                                                                                 section 4(f) sites, schools,
                                                                                 television studios, trails, and
                                                                                 trail crossings.
C \5\..........................  ............  ...............................  Non-noise sensitive land uses:
                                                                                 noise generating land uses,
                                                                                 undeveloped and unpermitted
                                                                                 land uses, or vacant and
                                                                                 derelict structures. Examples
                                                                                 of non-noise sensitive land
                                                                                 uses include agriculture,
                                                                                 airports, bus yards, emergency
                                                                                 services, industrial, logging,
                                                                                 maintenance facilities,
                                                                                 manufacturing, mining, rail
                                                                                 yards, retail facilities,
                                                                                 shipyards, utilities (water
                                                                                 resources, water treatment,
                                                                                 electrical), and warehousing.
D \6\ \7\......................            51  Interior.......................  A subset of certain Activity
                                                                                 Category B public, non-
                                                                                 residential land uses where
                                                                                 noise sensitive activities
                                                                                 occur only indoors. Examples
                                                                                 include but are not limited to:
                                                                                 auditoriums, day care centers,
                                                                                 hospitals, libraries, medical
                                                                                 facilities, places of worship,
                                                                                 public meeting rooms, public or
                                                                                 nonprofit institutional
                                                                                 structures, radio studios,
                                                                                 recording studios, schools, and
                                                                                 television studios.
----------------------------------------------------------------------------------------------------------------
\1\ The LEQ(h) Activity Criteria values are for impact determination only, and are not design standards for
  noise abatement measures.
\2\ Any of these land uses and Activities may be subject to other laws or rules (such as section 7 of the
  Endangered Species Act, section 106 of the National Historic Preservation Act, or section 4(f) (23 CFR part
  774)); impact and abatement analysis for these specific land uses and activities will be conducted according
  to applicable regulations, if requested by the oversight agency responsible for implementing the statutory
  requirements.
\3\ Highway agencies shall submit justifications to FHWA on a case-by-case basis for approval of an Activity
  Category A designation.
\4\ Includes undeveloped lands permitted for Activity Category B.
\5\ No analysis of noise impacts is required for Activity Category C.
\6\ A State DOT shall conduct an indoor analysis after a determination is made that exterior abatement measures
  will not be effective for non-residential land uses in Activity Category B. In non-residential land uses where
  no exterior activities are impacted by traffic noise, or where the exterior activities are far from or
  physically shielded from the roadway such that there is no impact on exterior activities, the State DOT shall
  use Activity Category D as the basis of determining noise impacts in lieu of Activity Category B.
\7\ For Activity Categories B and D, each State DOT shall adopt a standard practice for analyzing these land use
  facilities that is documented in its noise policy and is applied consistently and uniformly statewide.


[[Page 83825]]

[FR Doc. 2024-23751 Filed 10-17-24; 8:45 am]
BILLING CODE 4910-22-P