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.

Proposed Rules Federal Register

83801 

Vol. 89, No. 202 

Friday, October 18, 2024 

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. 

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: 

• Federal eRulemaking Portal: Go to 

www.regulations.gov and follow the 

online instructions for submitting 

comments. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 1200 

New Jersey Avenue SE, West Building 

Ground Floor Room W12–140, 

Washington, DC 20590. 

• 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. 

• 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 VarelaMargolles, 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 nonState 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, 


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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 § 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 nonacoustical 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 

Topic area Description of proposed change Existing regulatory 

section(s) 

Proposed regulatory 

section(s) 

Reorganization .................. Reorganizing the existing regulation to better match the project development 

process from beginning to end.

All sections, except 

§ 772.17.

All sections, except 

§ 772.17. 

Applicability and responsibilities.Clarifying what parts of this rulemaking apply only to State DOTs and which 

parts apply to all recipients receiving FHWA funding and/or approvals for a 

project.

All sections, except 

§ 772.1.

All sections, except 

§ 772.1. 

Project Types .................... Better aligning work effort to likely results (e.g., focusing noise analysis on 

projects likely to have noise impacts) by:.

• Introducing exempt projects 

• Introducing screenings to determine likelihood of impacts 

• Updating what constitutes the analysis area 

§ 772.5, § 772.7 .............. § 772.3, § 772.5, § 772.7. 

Traffic noise prediction ...... Including legacy periods and grace periods, and providing for use of updated 

versions of the Traffic Noise Model (TNM) via FEDERAL REGISTER notice.

§ 772.9 ............................ § 772.7. 

Consideration of adjacent 

receptors.

Establishing criteria and processes for 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.

§ 772.5, § 772.13 ............ § 772.9, § 772.11. 

Traffic noise impacts ......... Updating the criteria for a noise impact to balance research and commonly used 

State criteria.

§ 772.5, § 772.11, Table 

1—Noise Abatement 

Criteria.

§ 772.3, § 772.9, Table 

1—Noise Impact Criteria. 

Analysis of traffic noise 

abatement.

Consolidating the analysis of 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.

§ 772.13 .......................... § 772.11. 

Consideration of other 

abatement measures.

Updating Federal participation to allow 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.

§ 772.13, § 772.15 .......... § 772.11, § 772.19. 

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 federallyfunded or approved project for the 

construction of a highway on a new 

location or a significant change to an 


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1AASHTO Center for Environmental Excellence, 

Traffic Noise Practitioners Summit White Paper, 

and Noise Roadmap (February 22, 2016), available at: https://environment.transportation.org/pastevent/2015-traffic-noise-practitioners-summit/. 

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. 

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-bySection 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. Sectionby-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) 

§ 772.1 Purpose ..................................................................................... §§ 772.1 and 772.3. 

§ 772.3 Definitions .................................................................................. § 772.5. 

§ 772.5 Applicability ................................................................................ § 772.7. 

§ 772.7 Traffic Noise Prediction ............................................................. § 772.9. 

§ 772.9 Analysis of Traffic Noise Impacts .............................................. § 772.11. 

§ 772.11 Analysis of Traffic Noise Abatement ....................................... § 772.13. 

§ 772.13 Construction Noise .................................................................. § 772.19. 

§ 772.15 Documentation and Reporting ................................................ §§ 772.13, 772.11, and 772.19. 

§ 772.17 Information for Local Officials ................................................. § 772.17. 

§ 772.19 Federal Participation ............................................................... § 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 


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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. Sectionby-Section Discussion. 

SUMMARY OF KEY PROPOSED CHANGES

Section (as proposed) and topic Proposed change Purpose of change 

What we are proposing to change? What are we proposing to change it to/replace it 

with? Why are we proposing to change this? 

Project area requiring analysis—Noise analysis area

§ 772.3 Definitions 

§ 772.5 Applicability 

§ 772.9 Analysis of traffic noise impacts 

We propose to use the project area where design 

year traffic may contribute to noise impacts from 

the project. 

To focus analysis and work effort on areas most likely to be affected by the project based on traffic 

changes and construction work, and to ensure full 

consideration of community impacts. 

Type I project definitions and required analyses .........

§ 772.5 Applicability 

§ 772.7 Traffic Noise Prediction 

These proposed changes would: (1) identify Type I 

projects that could be exempt from noise analysis 

because these projects are expected to have minimal or no noise impacts; and (2) allow project 

screenings to determine whether impacts are likely 

before a full analysis with field measurements and 

modeling is undertaken. 

To introduce additional flexibility to improve the analytical process by better aligning the analysis effort 

to the likelihood of potential impacts and successful construction of abatement, while still providing 

the necessary information to the public regarding 

project impacts as part of FHWA National Environmental Policy Act (NEPA) process. 

Definitions of impacts ...................................................

§ 772.3 Definitions 

§ 772.9 Analysis of Traffic Noise Impacts 

§ 772.11 Analysis of Traffic Noise Abatement 

Table 1 Noise Impact Criteria 

We propose to change the definitions of substantial 

changes in noise levels by: changing substantial 

decrease as contained in the acoustic effectiveness criterion to be at least 5 dB(A) but not more 

than 10 dB(A); and changing the substantial increase criterion, by capping the maximum allowable increase, beyond which an impact will occur, 

at 10 dB(A) and maintaining the current 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. 

To better align the definitions of substantial decrease 

and substantial increase to be the same range of 

values which is a more logical approach and will 

also result in additional communities being considered for mitigation compared to the current rule. To 

update the impact values in table 1 in order to remove the requirement for State DOTs to select an 

approach criteria. 

TNM software updates and releases ...........................

§ 772.7 Traffic Noise Prediction 

We propose to provide for usage of legacy data from 

ongoing projects and grace periods for beginning 

to use new releases of TNM in noise analyses. 

To ensure a smooth transition to future updates of 

FHWA’s TNM and to provide certainty to State 

DOTs and noise analysis practitioners on when the 

new model should be used for noise analyses. 

Date of Public Knowledge ............................................

§ 772.9 Analysis of Traffic Noise Impacts 

§ 772.11 Analysis of Traffic Noise Abatement 

We propose to provide circumstances under which 

the Date of Public Knowledge must be reset. 

To ensure that the public obtains full consideration 

for potential impacts and abatement in cases 

where project design changes will alter 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 .........................................................

§ 772.9 Analysis of Traffic Noise Impacts 

§ 772.11 Analysis of Traffic Noise Abatement 

We propose to allow for any effective mitigation 

measures, or combination measures, to be eligible 

for Federal-aid funding provided they meet the requirements established in this rulemaking and in 

the given State DOT Noise Policy. We propose to 

include an additional optional effectiveness factor, 

to allow for noise mitigation that also provides 

other environmental and social benefits. 

To expand options for State DOTs to consider more 

cost- and acoustically-effective mitigation options 

such that mitigation is provided more often, is more 

effective at reducing noise, can enhance the environment, and can do so using the limited available 

funding. 

Analysis process ...........................................................

§ 772.11 Analysis of Traffic Noise Abatement 

We propose to combine ‘‘feasibility’’ and ‘‘reasonableness’’ determinations using the term ‘‘effectiveness.’’ We propose to establish that existing 

noise barriers that are disturbed by a new project 

can be eligible for Federal-aid funds for in-kind or 

improved replacement without necessitating additional analyses. 

To consolidate and clarify the traffic noise abatement 

analysis process so that it is easier to understand 

for the public; and to maintain existing mitigation 

that benefits a community. 

Public Involvement .......................................................

§ 772.11 Analysis of Traffic Noise Abatement: 

Consideration of Viewpoints 

We propose to consider renters and owners as having equal votes during mitigation decisionmaking; 

to make mitigation decisions based on a simple 

majority of returned ballots; and to limit the use of 

a minimum response rate requirement by State 

DOTs. 

To increase the public’s awareness of and influence 

on final mitigation decisions. 

Third Party Funding ......................................................

§ 772.11 Analysis of Traffic Noise Abatement 

We propose three options to consider third party 

funding. Proposed option three would remove the 

prohibition on complete funding of noise abatement 

by a third party while retaining the ban on partial 

funding. 

To ensure equitable allocation of resources and benefits and financial prudence for cost effective 

abatement measures. 


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SUMMARY OF KEY PROPOSED CHANGES—Continued 

Section (as proposed) and topic Proposed change Purpose of change 

What we are proposing to change? What are we proposing to change it to/replace it 

with? Why are we proposing to change this? 

Quantitative Analysis of Construction Noise ................

§ 772.19 Construction Noise 

We propose to include a new section stating that 

State DOTs should conduct quantitative construction 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. 

To ensure the public receives proper consideration 

for construction noise mitigation measures. 

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 

§ 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 § 772.1 Purpose and § 772.3 

Noise Standards sections into a single 

§ 772.1 Purpose section. By 

consolidating these sections, proposed 

§ 772.1(a) would describe the purpose of 

providing noise standards and would 

remove repetitive information that is 

found in proposed § 772.1(b) regarding 

what constitutes noise standards. 

The proposed changes also would 

include three clarifications of existing 

requirements in §§ 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 § 772.1(a). The 

second would clarify that this 

rulemaking provides both ‘‘noise impact 

and abatement criteria’’ by adding the 

words ‘‘impact and’’ in § 772.1(b). The 

final change would correct the reference 

to 23 U.S.C. 109(i) in existing § 772.3. 

Section 772.3 Definitions 

Renumbered § 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; 

L10; 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 


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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 § 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 § 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 § 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 § 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 

§ 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 LEQ 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 § 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 § 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 

§ 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 § 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 realworld 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 


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2FHWA, ‘‘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/. 

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 § 772.11(e). 

Substantial construction. The FHWA 

proposes to remove this definition, as it 

is described entirely in § 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 § 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 

§ 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, LEQ, 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 § 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 § 772.5. The FHWA 

proposes in § 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 § 772.5(b) 

would not be exclusive. 

Proposed § 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 § 772.5(c)(1) for 

clarity. In proposed § 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. 

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 


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given grant program and are not 

necessarily Type II projects. 

New § 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 

§ 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 § 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 substantial alteration of 

a toll plaza § 772.5(b)(3)(v).

The addition of, or conversion to, an all-electronic toll plaza where vehicles do not stop or accelerate away. § 772.5(c)(1)(i) 

The addition of an auxiliary lane, whether added 

by construction or restriping § 772.5(b)(3)(ii) 

and (iv).

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. § 772.5(c)(1)(ii) 

The addition of a through traffic lane(s), whether 

added by construction or restriping 

§ 772.5(b)(3)(i) and (iv).

The addition of a through traffic lane when: 

• Design speed limit is 35 mph or less; and 

• 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. § 772.5(c)(iii) 

Substantial Vertical Alteration § 772.5(b)(2)(ii) .... A substantial vertical alteration 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. § 772.5(c)(1)(iv) 

Type II Projects 

Proposed § 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 Federalaid 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 § 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 § 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 § 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 

§ 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 § 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 § 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 

§ 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 


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3FHWA, Analysis and Abatement Guidance 

(December 2010), available at: https://

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

and_guidance/analysis_and_abatement_guidance/. 

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 § 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 § 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 

§ 772.5(f). 

Section 772.7 Traffic Noise Prediction 

In renumbered § 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 

§ 772.7(a); make several clarifications in 

proposed § 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 § 727.7(e). 

Traffic Noise Model Version 

In proposed § 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 § 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. 

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 § 772.11. Because we are 

proposing to remove those detailed 

descriptions from the text, the relevant 

portions were summarized and moved 

to § 772.7(d). The text continues to state 

that each State DOT must define a 

method to calculate and place nonresidential receptors and apply it 

consistently statewide. Proposed 

§ 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 § 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 

§ 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 


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4FHWA, Traffic Noise Screening Tool, software 

and User’s Guide (September 2021), available at: 

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

traffic_noise_model/. 

5FHWA, Analysis and Abatement Guidance 

(December 2010), available at: https://

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

and_guidance/analysis_and_abatement_guidance/. 

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. 

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 § 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 

§ 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 

§ 772.9. Related proposed changes can 

be found in § 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 § 772.3, 

FHWA proposes to clarify that the noise 

analysis area in § 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 

(§ 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 § 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). 

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 § 772.11(e) for 

State DOTs to establish an approach 

level to be used when determining a 

traffic noise impact. As mentioned in 

§ 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 


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6FHWA, Analysis and Abatement Guidance 

(December 2010), available at: https://

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

and_guidance/analysis_and_abatement_guidance/. 

7FHWA, Analysis and Abatement Guidance 

(December 2010), available at: https://

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

and_guidance/analysis_and_abatement_guidance/. 

8FHWA, Analysis and Abatement Guidance 

(December 2010), available at: https://

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

and_guidance/analysis_and_abatement_guidance/. 

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 § 772.11, 

including providing new flexibilities for 

noise abatement measures and moving 

the reporting requirements to a new 

section, § 772.15 Documentation and 

Reporting. 

The FHWA is proposing to require in 

§ 772.11(a) that abatement measures 

must be considered and evaluated for 

effectiveness (i.e., replacing feasibility 

and reasonableness in current 

§ 772.13(d)). The FHWA would 

continue to require ‘‘primary 

consideration to exterior areas where 

frequent human use occurs’’ (in current 

§ 772.11(b)), in proposed § 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 § 772.11(a)(2) what is 

currently provided in guidance. 

State DOTs have requested clear 

direction on how to address 

replacement of noise barriers. The 

FHWA is proposing new language in 

§ 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 

§ 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. 

The primary change to this section is 

that FHWA proposes in § 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 § 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 § 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 

§ 772.13(d)(1)(ii) under feasibility. 

Acoustic Effectiveness 

Acoustic effectiveness would combine 

the acoustic feasibility factor described 

in existing § 772.13(d)(1)(i) and the 

reasonableness factor of a noise 

reduction design goal described in 

existing § 772.13(d)(2)(iii) into a single 

assessment. 

The FHWA is proposing to rename 

the ‘‘noise reduction design goal’’ in 

existing § 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 

§ 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 


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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 

§ 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 § 772.11(e)(3)(i) 

and (ii). 

The FHWA is proposing to amend the 

provision on third party funding of 

noise abatement measures. Currently, 

§ 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 thirdparty 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 § 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 costeffective 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 nondiscriminatory treatment. 

The FHWA is proposing three options 

for third-party funding in this 

rulemaking at § 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 


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9FHWA, Federal-Aid Guidance Non-Federal 

Matching Requirements (May 2019), available at: 

https://www.fhwa.dot.gov/legsregs/directives/ 

policy/memonfmr_tapered20190515.htm. 

10FHWA, Noise Policy FAQs—Frequently Asked 

Questions (May 2012), available at: https://

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

and_guidance/faq_nois.cfm. 

11U.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_nearroad_air_quality.pdf. 

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 Federalaid 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. 

Consideration of the Viewpoints of the 

Property Owners and Residents of the 

Benefitted Receptors 

Proposed § 772.11(e)(4) has a similar 

description as existing § 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-ofway. 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, noncontroversial 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. 

Optional Factors 

The FHWA is proposing in 

§ 772.11(e)(5) a new optional factor for 

added flexibility in determining the 

effectiveness of noise abatement 

measures. New § 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 


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increases from using the optional factor 

will vary and be defined by each State 

DOT that chooses to use it. 

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 § 772.5 to 

describe the date for establishing the 

date of public knowledge in proposed 

§ 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 § 772.11(f)(1) and (2) were 

moved and revised from current 

§ 772.11(c)(2)(vii)(C) to use terminology 

consistent with the proposed rule for 

State DOT, environmental document, 

and technical noise memorandum. 

Proposed § 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 § 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 reevaluation 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 

§ 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 § 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 nonbarrier abatement measures, FHWA is 

seeking comment on ways that nonbarrier 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 § 772.13 includes the 

requirements of existing § 772.19, 

renumbered as § 772.13(b) with new 

provisions concerning quantitative 

analysis of certain construction projects 

in § 772.13(a) and clarification that it 

would be optional to analyze 

construction for Type III projects in 

§ 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 


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public concern about construction 

noise. The FHWA is proposing, in 

§ 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 

§ 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 § 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, § 772.15 

Documentation and Reporting. These 

requirements appear in various sections 

of the existing regulation, mostly under 

§ 772.11 Analysis of Noise Abatement, 

as well as under § 772.9 Analysis of 

Traffic Noise Impacts and § 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 § 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 § 772.13(g) for clarity, and to 

move the provision to proposed 

§ 772.15(c). 

The FHWA proposes to move current 

§ 772.13(h) to proposed § 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 § 772.15(e) 

to include the provision in current 

§ 772.19(c) and proposed § 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 § 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 § 772.17(a)(2), FHWA proposes to 

remove mention of ‘‘approach’’ for 

consistency with proposed changes in 

§ 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 § 772.9(c) to proposed 

§ 772.17(c), as it is more relevant to this 

section. 

Section 772.19 Federal Participation 

The FHWA proposes to renumber 

existing § 772.15 as proposed § 772.19 

and amend its provisions. The FHWA 

would like to encourage States to 

consider the most acoustically and costeffective 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 lowerheight, 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 § 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 

§ 772.19(c), and why. 

The FHWA proposes to add a new 

§ 772.19(d) to explain which measures 

are not eligible noise abatement, 

codifying FHWA’s longstanding policy 

and guidance. Proposed § 772.19(d)(1) 

would be moved from current 

§ 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 § 772.19(d)(2) and (3) are 

also from FHWA’s Highway Traffic 

Noise: Analysis and Abatement 


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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 §§ 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 

L10(h) noise metric. Currently, States 

may choose to use either LEQ(h) or L10(h) 

but not both on a project to determine 

noise impacts. All States have chosen to 

use LEQ(h), as identified in their noise 

policies. The FHWA requests comments 

on the decision to remove the L10(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 noisesensitive, 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 § 772.17. 

Category D would remain a subset of 

certain Activity Category B public nonresidential land uses where noisesensitive 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 § 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 

§ 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 § 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 § 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 § 772.3 

Definitions and § 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 


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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 § 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 selfapprove 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 § 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 § 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 § 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 § 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 projectlevel 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 


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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 § 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 

§ 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 L10 noise metric. This 

would not result in any changes because 

no State uses the L10 metric, all States 

use LEQ. 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 § 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 


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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). 

§ 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. 

§ 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 Federalaid 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. 

LEQ. 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. LEQ(h) is the 

hourly value of LEQ. 

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 


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(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 Federalaid highway project likely to cause 

traffic noise impacts during regular 

operation of the facility in the design 

year. 

Type II project. A Federal or Federalaid 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 Federalaid 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. 

§ 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 Federalaid 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, HighOccupancy 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 § 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 


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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 § 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 

§ 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. 

§ 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 § 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 § 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 § 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 § 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. 

§ 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 FHWAapproved noise model. 

(2) For projects on existing 

alignments, predict existing and design 

year traffic noise levels using an FHWAapproved noise model. 

(c) In determining traffic noise 

impacts, a recipient shall give primary 


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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. 

§ 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 § 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 noisesensitive development before the date of 

public knowledge must be considered 

for potential impacts from the project, 


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

§ 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. 

§ 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. 

§ 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 § 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 

§ 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 § 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 § 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 Statefunded, county-funded, tollway/ 

turnpike-funded, other, or unknown). 

§ 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 § 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 


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83824 Federal Register / Vol. 89, No. 202 / Friday, October 18, 2024 / Proposed Rules 

methodology of FHWA TNM, may be 

used for land use planning to comply 

with paragraphs (a)(1) through (3) of this 

section. 

§ 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 

§ 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 

category 

Activity 

criteria 

(LEQ(h)) 1

Evaluation 

location Activity description 2

A3 .................. 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. 

B4 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. 

1The LEQ(h) Activity Criteria values are for impact determination only, and are not design standards for noise abatement measures. 2Any 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. 

6A State DOT shall conduct an indoor analysis after a determination is made that exterior abatement measures will not be effective for nonresidential 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. 7For 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. 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 89, No. 202 / Friday, October 18, 2024 / Proposed Rules 83825 

[FR Doc. 2024–23751 Filed 10–17–24; 8:45 am] 

BILLING CODE 4910–22–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 301 

[REG–120137–19] 

RIN 1545–BP66 

Update of Regulations Regarding 

Payment of Tax by Commercially 

Acceptable Means; Hearing 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Proposed rule; public hearing 

SUMMARY: This document provides a 

notice of public hearing on the proposed 

rule (REG–120137–19) that was 

published in the Federal Register on 

Tuesday, July 2, 2024. The proposed 

regulations relate to the payment of tax 

by commercially acceptable means and 

reflect changes to the law made by the 

Taxpayer First Act that would allow the 

IRS to directly accept payments of tax 

by credit or debit card, without having 

to connect taxpayers to third-party 

payment processors. 

DATES: The public hearing is scheduled 

to be held on December 6, 2024, at 10 

a.m. Eastern Time (ET). The IRS must 

receive speakers’ outlines of the topics 

to be discussed at the public hearing by 

November 6, 2024. If no outlines are 

received by November 6, 2024, the 

public hearing will be cancelled. 

ADDRESSES: The public hearing is being 

held in the Auditorium, at the Internal 

Revenue Service Building, 1111 

Constitution Avenue NW, Washington, 

DC. Due to security procedures, visitors 

must enter at the Constitution Avenue 

entrance. In addition, all visitors must 

present a valid photo identification to 

enter the building. Because of access 

restrictions, visitors will not be 

admitted beyond the immediate 

entrance area more than 30 minutes 

before the hearing starts. Participants 

may alternatively testify or attend the 

hearing by telephone. 

Send an outline of topic submissions 

electronically via the Federal 

eRulemaking Portal at 

www.regulations.gov (indicate IRS and 

REG–120137–19). Send paper 

submissions to CC:PA:01:PR (REG– 

120137–19), Room 5205, Internal 

Revenue Service, P.O. Box 7604, Ben 

Franklin Station, Washington, DC 

20044. 

FOR FURTHER INFORMATION CONTACT: 

Concerning the proposed regulations, 

Crystal Jackson-Kaloz at (202) 317–5191 

(not a toll-free number); concerning the 

submission of requests to testify, the 

hearing, the access code to attend the 

hearing by phone, or to be placed on the 

building access list to attend the public 

hearing, contact the Publications and 

Regulations Section at (202) 317–6901 

(not a toll-free number), or by email at 

publichearings@irs.gov (preferred). 

SUPPLEMENTARY INFORMATION: The 

subject of the public hearing is the 

notice of proposed rulemaking (REG– 

120137–19) that was published in the 

Federal Register on Tuesday, July 2, 

2024 (89 FR 54746). 

The rules of 26 CFR 601.601(a)(3) 

apply to the hearing. Persons who wish 

to present oral comments at the hearing 

must submit an outline of the topics to 

be discussed and the time to be devoted 

to each topic by November 6, 2024. 

A period of 10 minutes will be 

allotted to each person for making 

comments. An agenda showing the 

scheduling of the speakers will be 

prepared after the deadline for receiving 

outlines has passed. Copies of the 

agenda will be available free of charge 

at the hearing and via the Federal 

eRulemaking Portal (https://

www.Regulations.gov) under the title of 

Supporting & Related Material. If no 

outline of the topics to be discussed at 

the hearing is received by November 6, 

2024, the public hearing will be 

cancelled. If the public hearing is 

cancelled, a notification of cancellation 

of the public hearing will be published 

in the Federal Register. 

Individuals who want to testify in 

person at the public hearing must send 

an email to publichearings@irs.gov to 

have your legal name added to the 

building access list. The subject line of 

the email must contain the regulation 

number REG–120137–19 and the 

language ‘‘TESTIFY In Person.’’ For 

example, the subject line may say: 

Request to TESTIFY In Person at 

Hearing for REG–120137–19. 

Individuals who want to testify by 

telephone at the public hearing must 

send an email to publichearings@irs.gov 

to receive the telephone number and 

access code for the hearing. The subject 

line of the email must contain the 

regulation number REG–120137–19 and 

the language ‘‘TESTIFY 

Telephonically.’’ For example, the 

subject line may say: Request to 

TESTIFY Telephonically at Hearing for 

REG–120137–19. 

Individuals who want to attend the 

public hearing in person without 

testifying must also send an email to 

publichearings@irs.gov to have your 

legal name added to the building access 

list. The subject line of the email must 

contain the regulation number REG– 

120137–19 and the language ‘‘ATTEND 

In Person.’’ For example, the subject 

line may say: Request to ATTEND In 

Person for REG–120137–19. Requests to 

attend the public hearing must be 

received by 5 p.m. ET on November 29, 

2024. The hearing will be made 

accessible to people with disabilities. 

Requests for special assistance during 

the hearing must be received by 5 p.m. 

ET on November 27, 2024. 

Individuals who want to attend the 

public hearing by telephone without 

testifying must also send an email to 

publichearings@irs.gov to receive the 

telephone number and access code for 

the hearing. The subject line of the 

email must contain the regulation 

number REG–120137–19 and the 

language ‘‘ATTEND Hearing 

Telephonically.’’ For example, the 

subject line may say: Request to 

ATTEND Hearing Telephonically for 

REG–120137–19. Requests to attend the 

public hearing must be received by 5 

p.m. ET on November 29, 2024. 

Any questions regarding speaking at 

or attending the public hearing may also 

be emailed to publichearings@irs.gov. 

Regina L. Johnson, 

Federal Register Liaison, Publications and 

Regulations Section, Associate Chief Counsel, 

(Procedure and Administration). 

[FR Doc. 2024–23972 Filed 10–17–24; 8:45 am] 

BILLING CODE 4830–01–P 


khammond on DSKJM1Z7X2PROD with PROPOSALS