FR Doc E9-22386

[Federal Register: September 17, 2009 (Volume 74, Number 179)]
[Proposed Rules]
[Page 47762-47774]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17se09-13]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 772

[FHWA Docket No. FHWA-2008-0114]
RIN 2125-AF26

Procedures for Abatement of Highway Traffic Noise and
Construction Noise

AGENCY: Federal Highway Administration (FHWA), DOT.

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

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SUMMARY: This document proposes to revise the Federal regulations on
the Procedures for Abatement of Highway Traffic Noise and Construction
Noise. The FHWA seeks to clarify certain definitions, the applicability
of this regulation, certain analysis requirements, and the use of
Federal funds for noise abatement measures. In addition, the proposed
regulation would include a screening tool and the latest state of the
practice on addressing highway traffic noise.

DATES: Comments must be received by November 16, 2009.

ADDRESSES: Mail or hand deliver comments to the U.S. Department of
Transportation, Dockets Management Facility, Room PL-401, 1200 New
Jersey Avenue, SE., Washington, DC 20590 or fax comments to (202) 493-
2251. Alternatively, comments may be submitted via the Federal
eRulemaking Portal at http://www.regulations.gov. All comments must
include the docket number that appears in the heading of this document.
All comments received will be available for examination and copying at
the above address from 9 a.m. to 5 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped postcard or you may
print the acknowledgment page that appears after submitting comments
electronically. Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70, Pages 19477-78).

FOR FURTHER INFORMATION CONTACT: Mr. Mark Ferroni, Office of Natural
and Human Environment, (202) 366-3233, or Mr. Robert Black, Office of
the Chief Counsel, (202) 366-1359, Federal Highway Administration, 1200
New Jersey Avenue, SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Electronic Access

An electronic copy of this document may be downloaded by using a
computer, modem, and suitable communications software from the
Government Printing Office's Electronic Bulletin Board Service at (202)
512-1661. Internet users may also reach the Office of the Federal
Register's home page at: http://www.archives.gov and the

[[Page 47763]]

Government Printing Office's Web page at: http://www.access.gpo.gov/
nara.

Background

The FHWA developed the noise regulation as required by section 136
of the Federal-Aid Highway Act of 1970 (codified at 23 U.S.C. 109(i)).
The regulation applies to highway construction projects where a State
department of transportation has requested Federal funding for
participation in the project. The FHWA noise regulation, found at 23
CFR 772, requires a highway agency to investigate traffic noise impacts
in areas adjacent to federally-funded highways for the proposed
construction of a highway on a new location or the reconstruction of an
existing highway that either significantly changes the horizontal or
vertical alignment or increases the number of through-traffic lanes. If
the highway agency identifies impacts, it must consider abatement. The
highway agency must incorporate all feasible and reasonable noise
abatement into the project design.
The FHWA published the ``Highway Traffic Noise Analysis and
Abatement Policy and Guidance'' (``Policy and Guidance''), dated June
1995, (available at http://www.fhwa.dot.gov/environment/noise/polguide/
polguid.pdf) which provides guidance and policy on highway traffic and
construction noise abatement procedures for Federal-aid projects. While
updating the 1995 Policy and Guidance, the FHWA determined that certain
changes to the noise regulations were necessary. As a result, the FHWA
developed this NPRM to propose those changes.
This NPRM proposes to amend all of the sections in Part 772, except
for sections 772.1 and 772.3. A highway agency would be required to
submit its revised noise policy, meeting the requirements of the final
rule, to FHWA for approval within 6 months of the publication date of
the final rule. The FHWA would review the highway agency's revised
noise policy for conformance to the final rule and uniform and
consistent application nationwide. The highway agency would provide
FHWA for approval a review schedule that does not to exceed 3 months
from the highway agency's submission of the revised noise policy. FHWA
would require at least 14 business days to conduct an initial and a
subsequent review of a revised noise policy. Failure to submit a
revised noise policy in accordance with the final rule could result in
a delay in FHWA's approval of Federal-aid highway projects. The highway
agency would be required to implement the new standard on the date that
the FHWA approved the highway agency's revised policy. For Federal-aid
highway projects for which the noise analysis has already begun, the
FHWA Division Office would determine which of those projects, if any,
should be completed under their previous approved noise policy.
Commenters are encouraged to comment on the feasibility of this
timeline. This NPRM also recommends changes to Table 1--Noise Abatement
Criteria and the removal of Appendix A--National Reference Energy Mean
Emission Levels as a Function of Speed. In addition to these proposed
changes, the FHWA is proposing various minor changes to sections
throughout the NPRM to institute a more logical order in the
regulation. These proposed minor changes would not change the meaning
of the regulation and would not be substantive in nature.
Although the FHWA is soliciting comments on all the proposed
changes within the NPRM, there are three additions to the regulation
for which the FHWA specifically seeks comment. The first, contained in
section 772.9(c)(5)(ii)(b), allows highway agencies to determine the
allowable cost of noise abatement. The second, contained in section
772.9(d), provides a change from past FHWA guidance regarding when it
is appropriate for third parties to contribute additional funds to a
noise abatement measure or aesthetic treatments. This NPRM would allow
third party contributions only after the highway agency has determined
that the noise abatement measure is feasible and reasonable. The third,
contained in section 772.13(e), would require each highway agency to
maintain an inventory of all constructed noise abatement measures,
which FHWA currently requests from highway agencies during the
triennial noise barrier inventory. Additional information on the
proposed changes follows.

Proposed Changes

The FHWA proposes updates to section 772.5 Definitions, section
772.7 Applicability, section 772.9 Analysis of traffic noise impacts
and abatement measures, section 772.11 Noise abatement, section 772.13
Federal participation, section 772.15 Information for local officials,
and section 772.17 Traffic noise prediction, Table 1--Noise Abatement
Criteria; ministerial changes to section 772.19 Construction Noise;
and, the removal of Appendix A--National Reference Energy Mean Emission
Levels as a Function of Speed.
Section 772.5, as proposed, would add, modify, or combine
definitions, as well as reorganize the order in which they appear in
the regulation. Section 772.5(a), as proposed, would expand the
definition of a Type I project as provided in the FHWA memorandum dated
October 20, 1998 (available at http://www.fhwa.dot.gov/environment/
noise/type1mem.htm) and in accordance with common industry practices.
Section 772.5(a)(1), as proposed, would expand the definition of a
highway on new location to include the addition of new interchanges or
ramps to complete an existing partial interchange. Section 772.5(a)(2),
as proposed, would require a highway agency to define the significant
change in the horizontal or vertical alignment. Although these
definitions, as proposed, would allow the highway agency to determine a
significant change in the horizontal or vertical alignment, it would be
required to consider, as a factor, a 3 dB(A) increase in the noise
environment at the receptor when comparing the existing condition to
the future build condition.
Section 772.5(a)(3), as proposed, would include the discussion of
through-traffic lanes as provided in the FHWA memorandum dated October
20, 1998 (available at http://www.fhwa.dot.gov/environment/noise/
type1mem.htm). This memorandum references High-Occupancy-Vehicle (HOV)
lanes and truck-climbing lanes; however, we propose including High-
Occupancy-Toll lanes as a Type I project.
Section 772.5(a)(4), as proposed, would include a discussion of
auxiliary lanes. The October 20, 1998, memorandum (available at http://
www.fhwa.dot.gov/environment/noise/type1mem.htm) also discusses when an
auxiliary lane shall be determined a Type I project. This memorandum
refers to an auxiliary lane increasing capacity, being a minimum of 1.5
miles long, added between interchanges to improve operational
efficiency and functioning as a through-traffic lane. These four
references corresponded to sections 772.5(a)(4)(i)-(iv), respectively.
We would also, as proposed in section 772.5(a)(4)(v), classify an
auxiliary lane as a Type I project if the auxiliary lane significantly
alters the horizontal or vertical alignment. Section 772.5(b), as
proposed, would clarify the definition of a Type II project. The first
sentence will remain the same as currently written in the regulation. A
second sentence would be added to clarify that in order for a highway
agency to receive Federal-aid highway funds for a Type II project, the
highway agency must

[[Page 47764]]

develop and implement a Type II program in accordance with section
772.7(c)(2). The development and implementation of a Type II program
has been supported by the FHWA since June 1995 with the release of the
Policy and Guidance document, which is available at http://
www.fhwa.dot.gov/environment/noise/polguide/polguid.pdf).
Section 772.5(c), as proposed, would define a Type III project.
This new project type is necessary to categorize projects that do not
satisfy the definition of a Type I or a Type II project. For example,
roadway reconstruction or in-kind bridge replacements do not meet the
definitions of a Type I project or a Type II project. The lack of
categorization for these projects would be problematic as highway
agencies prepare environmental clearance documentation because there is
no succinct way to discuss the noise analysis requirements of the
project. This new Type III project category would enable highway
agencies to categorize all projects.
Section 772.5(d), as proposed, would define the term ``residence.''
The term residence would appear throughout the regulation including
Activity Category B within Table I of the Noise Abatement Criteria.
According to the June 19, 1995, distribution memorandum (available at
http://www.fhwa.dot.gov/environment/noise/polpap_m.htm) for the 1995
Policy and Guidance document, ``the method used to count residences
should include all dwelling units, e.g., owner-occupied, rental units,
mobile homes * * *.'' The proposed definition would ensure proper
application of the term when determining noise impacts. References to a
benefited receiver would be found in proposed sections 772.5, 772.9 and
Table 1 of this NPRM.
Section 772.5(e), as proposed, would add a definition for the term
``special land use facilities.'' This would include picnic areas,
recreation areas, playgrounds, active sport areas, parks, motels,
hotels, schools, places of worship, libraries, hospitals, cemeteries,
campgrounds, trails, and trail crossings. Special land use facilities
often require a different process to identify the number of impacted
and benefited receivers it contains than that of a residence. In
proposed section 772.9, we would define impact/impacted and benefited/
benefiting receivers.
Section 772.5(f), as proposed, would define the term ``multifamily
dwelling,'' and would require the State agency to count each residence
in a multifamily structure as one receiver. The proposed definition
would allow highway agencies to assess the total number of impacted and
benefited receivers. Proposed section 772.9 of this NPRM would refer to
multifamily dwellings.
In section 772.5(g), as proposed, would define the term ``planned,
designed, and programmed'' as a definite commitment to develop land
with an approved specific design of land use activities. The term is
currently referenced in the regulation under existing section 772.9,
but is not defined.
Section 772.5(h), as proposed, would define the term ``date of
public knowledge.'' According to the 1995 Policy and Guidance document,
highway agencies ``must identify when the public is officially notified
of the adoption of the location of a proposed highway project.'' The
date of public knowledge establishes when the Federal/State governments
are no longer responsible for providing noise abatement for new
development, which occurs adjacent to the proposed highway project. The
1995 Policy and Guidance document indicates that the date of public
knowledge cannot precede the date of approval of a Categorical
Exclusion (CE), Finding of No Significant Impact (FONSI), or Record of
Decision (ROD). The addition of this definition allows for the
connection of planned, designed, and programmed with the date of public
knowledge within the regulation.
Section 772.5(j), as proposed, would modify the definition of
``traffic noise impacts'' to include minor editorial and clarification
changes.
Section 772.5(k), as proposed, would modify the definition of
``design year.'' Highway agencies define the design year as a part of
their project development. Under the proposed definition, the design
year established for the Federal-aid highway project would be the year
used for the noise analysis.
Section 772.5(l), as proposed, would define the term ``impacted
receiver.'' There are references throughout the current regulation
about determining traffic noise impacts. This definition would clarify
that traffic noise impacts can occur two ways, either by approaching or
exceeding an absolute noise level, called the Noise Abatement Criteria
(NAC) or by a noise level substantially increasing over the existing
sound level. Impacted receiver would be referenced in proposed sections
772.9 and 772.11 of this NPRM.
Section 772.5(m), as proposed, would define the term ``benefited
receiver.'' A benefited receiver would not also have to be an impacted
receiver. Benefited receiver would be referenced in proposed section
772.9 of this NPRM.
Section 772.5(n), as proposed, would define the term
``feasibility.'' The current regulation makes references to
feasibility, and it is defined in the 1995 Policy and Guidance
document; however, it is not defined in the current regulation.
Proposed section 772.9 of this NPRM refers to feasibility.
Section 772.5(o), as proposed, would define the term
``reasonableness.'' Reasonableness would be determined by considering
several factors. The current regulation makes references to
reasonableness and it is defined in the 1995 Policy and Guidance
document; however, it is not defined in the current regulation.
Sections 772.9, 772.11 and 772.15 of this NPRM refer to reasonableness.
Section 772.5(p), as proposed, would define the term ``common noise
environment'' and provide clarification to proposed section 772.9(e),
concerning the concept of averaging the cost of noise abatement among
benefited receivers within a common noise environment.
Section 772.5(q), as proposed, would define the term ``property
owner,'' which is referred to proposed sections 772.9, and 772.11 of
this NPRM.
Section 772.5(r), as proposed, would define the term ``substantial
construction'' as the granting of a building permit, the filing of a
plat plan, or the occurrence of a similar action prior to right-of-way
acquisition or construction approval for the original highway.
Section 772.5(s), as proposed, would define the term ``severe noise
impact.'' The regulation currently references severe noise impacts in
section 772.13(d) but does not define the term. Severe noise impacts
would be referenced in proposed section 772.13 of this NPRM.
Section 772.5(t), as proposed, would combine the definitions of
``L10'' and ``L10(h)'' into one definition of L10, since it is
unnecessary to have two definitions for L10. L10(h) would be referenced
in proposed Table I of this NPRM.
Section 772.5(u), as proposed, would combine the definitions of
``Leq'' and ``Leq(h)'' into one definition of Leq since it is
unnecessary to have two definitions for Leq. Leq(h) would be referenced
in proposed Table I of this NPRM.
Section 772.7(a), as proposed, would make this regulation
applicable to all Federal lands and Federal-aid projects authorized
under Title 23.
Section 772.7(b), as proposed, would emphasize that this regulation
would be applied uniformly and consistently statewide. The principles
of applying

[[Page 47765]]

this regulation uniformly and consistently have been common practice,
as supported by the 1995 Policy and Guidance document.
Section 772.7(c), as proposed, would combine sections 772.7(a) and
772.7(b) in the current regulation and would include recommendations on
a Type II program and Type III projects. The current section applies to
all Type I projects unless the regulation specifically indicates that a
section applies only to a Type II project. This section would refer to
Type III projects as a new project category.
The language in current section 772.7(b) would now be found, in
part, in proposed section 772.7(c)(1). We propose to remove the
reference to when a Type II project is proposed for Federal-aid highway
participation at the option of the highway agency (the proposed
provisions of sections 772.9(c), 772.13, and 772.19) because it is
redundant. Section 772.7(c), as proposed, would state that there are
specific sections of the regulation that only apply to a Type II
project.
Section 772.7(c)(2), as proposed, would require highway agencies
choosing to participate in a Type II program to develop a priority
system, based on a variety of factors, and rank the projects. The FHWA
then must approve a highway agency's priority system before Federal-aid
funds can be used. The parameters for the development of a priority
system for a State highway agency's Type II program are currently
contained in the 1995 Policy and Guidance document and help ensure
equitable application of this optional program across social,
economical and environmental factors.
With the addition of a Type III project in proposed section
772.7(c)(3), a highway agency would not be required to complete a noise
analysis or consider abatement measures for Type III projects. Section
772.9(b)(2), as proposed, would require a highway agency to complete a
traffic noise analysis of each Activity Category listed in Table 1 that
is present in the project study area. The current regulation does not
provide this direct link between the noise analysis and Table 1.
Additional clarification and connection to the NAC listed in Table 1,
as proposed, would be provided in proposed sections 772.9(b)(2)(i)-(v).
Section 772.9(b)(2)(i), would require highway agencies to submit
justification to the FHWA on a case-by-case basis for approval of an
Activity Category A designation. Activity Category A designations are
extremely rare due to the difficulty in meeting these requirements;
therefore, approval by the FHWA would be required to ensure the
property meets the requirements and that the designation would be
uniformly and consistently applied.
Section 772.9(b)(2)(ii), as proposed, would divide Activity
Category B into residences, both single-family and multifamily, and
special land use facilities. The definition of a special land use
facility would be found in proposed section 772.5(e) of this NPRM.
Highway agencies would be required to adopt a standard practice for
analyzing these special land use facilities, which would allow the
highway agency to uniformly and consistently apply the regulation when
a project area contained a special land use facility. A highway agency
could categorize the standard practice for special land use facilities
by context and intensity, i.e., land use type, usage, project level,
etc. Section 772.9(b)(2)(iii), as proposed, would restate Activity
Category C, which Table 1 lists as ``Developed lands, properties, or
activities not included in Categories A or B above.'' It is the FHWA's
position that this is comprised of both commercial and industrial land
uses. These land uses are the only developed land use types not already
listed in Categories A or B.
Section 772.9(b)(2)(iv)(A), as proposed, would require a highway
agency to determine if undeveloped land is planned, designed, and
programmed for development. Planned, designed, and programmed is listed
in the current regulation in section 772.9(b)(1), and would be defined
in proposed section 772.5(g). The 1995 Policy and Guidance document
provided guidance on the exact date that undeveloped land could be
determined planned, designed, and programmed. This section, as
proposed, would require the highway agency to identify the milestones
or activities and associated dates for acknowledging when undeveloped
land is considered planned, designed, and programmed, choose the
milestone or activity that best fulfills its requirements and apply
them consistently and uniformly statewide.
Section 772.9(b)(2)(iv)(B), as proposed, would require a highway
agency to determine future noise levels when undeveloped land is
planned, designed, and programmed and, where appropriate, to consider
abatement measures. This would clarify current section 772.9(b)(1),
which requires a highway agency to complete a noise analysis for
undeveloped lands for which development is planned, designed, and
programmed.
Section 772.9(b)(2)(iv)(C), as proposed, would recommend methods to
assess noise levels for undeveloped lands that are not planned,
designed, and programmed for development. If undeveloped land is not
planned, designed, and programmed by the date of public knowledge, the
highway agency would be required to determine noise levels and document
the results in the project's environmental clearance documents and
noise analysis documents. Lands that are not planned, designed, and
programmed by the date of public knowledge would not be eligible for
consideration for Federal participation for noise abatement measures.
The date of public knowledge would be defined in proposed section
772.5(h) of this NRPM. The 1995 Policy and Guidance document states
that the date of public knowledge is the date when the Federal
government is no longer responsible for providing noise abatement for
new development that occurs adjacent to the proposed highway project.
The date of public knowledge could not precede the date of approval of
CEs, FONSIs, or RODs.
Section 772.9(b)(2)(v), as proposed, would require a highway agency
to only conduct an indoor analysis for Activity Category E, which
proposed Table 1 lists as the interior of residences, motels, hotels,
public meeting rooms, schools, places of worship, libraries, hospitals,
and auditoriums, after completing an analysis of the outdoor activity
areas. A highway agency would be required to exhaust all outdoor
analysis options before performing an indoor analysis.
Section 772.9(b)(3), as proposed, would require, for a Type I
project, the traffic noise analysis study area to extend at least 500
feet from the project of the build alternative(s) as the minimum area;
however, highway agencies could choose to routinely analyze at
distances greater than 500 feet. A highway agency would be required to
analyze any area beyond the minimum distance if the highway agency
believed that traffic noise impacts could occur. These minimum areas
for analyzing traffic noise impacts would ensure that the highway
agency identified all potentially impacted receivers. If impacts were
determined beyond the minimum area of analysis, a highway agency would
be required to include those impacts in the consideration of feasible
and reasonable noise abatement measures.
Section 772.9(c)(3)(i), as proposed, would require highway agencies
to establish an ``approach'' level for determining a traffic noise
impact as at least 1 dB(A) less than the NAC. This is consistent with
the 1995 Policy and Guidance document.

[[Page 47766]]

Section 772.9(c)(3)(ii), as proposed, would require highway
agencies to define the term ``substantial noise increase.'' The 1995
Policy and Guidance document makes reference to a 10 dB(A) and a 15
dB(A) substantial increase criteria but then indicates that the FHWA
will ``accept a well-reasoned definition that is uniformly and
consistently applied.'' Since 1995, it has become common practice for a
highway agency to define a substantial increase as a design year noise
increase over existing noise levels of between 10 dB(A) to 15 dB(A).
Therefore, the FHWA is proposing to require a State highway agency to
define a substantial noise increase criterion between 10 dB(A) to 15
dB(A). The second sentence in section 772.9(c)(3)(ii), as proposed, is
consistent with the 1995 Policy and Guidance document, which states,
``A traffic noise impact occurs when the predicted levels approach or
exceed the NAC or when predicted traffic noise levels substantially
exceed the existing noise level, even though the predicted levels may
not exceed the NAC.'' Therefore, we propose no lower dB(A) limit when
considering a substantial noise increase.
Section 772.9(c)(4), as proposed, would require a traffic noise
analysis to include an assessment of impacted and benefited receivers,
which are defined in these proposed sections 772.5(l) and 772.5(m),
respectively. We also propose in this section that a ``highway agency
shall define the threshold for the noise reduction which determines a
benefited receiver as at least 5 dB(A).'' It is the FHWA's position
that, since it requires a 5 dB(A) noise reduction for a noise abatment
measure to be deemed acoustically feasible, the same principle should
be required for a receiver to be classified as benefiting from the
noise abatement measure.
Section 772.9(c)(5), as proposed, would require a traffic noise
analysis to include an examination and evaluation of feasible and
reasonable noise abatement measures for reducing traffic noise impacts.
The regulation would not specify what to include in determining that a
noise abatement measure is feasible and/or reasonable; however, the
1995 Policy and Guidance document indicates that both feasibility and
reasonableness should include several factors and provides several
examples. As a result, we propose each highway agency develop
feasibility and reasonableness factors for FHWA approval. The factors
in proposed sections 772.9(c)(5)(i)-(ii) are the minimum factors a
highway agency would be required to include in its feasibility and
reasonableness factors.
Section 772.9(c)(5)(i)(A), as proposed, would require feasibility
factors to include an ``achievement of at least a 5 dB(A) highway
traffic noise reduction at the majority of the impacted receivers * *
*.'' The 5 dB(A) reduction in noise is supported by the 1995 Policy and
Guidance document, and ``majority'' would be required to mean at least
one percentage point over 50 percent.
Section 772.9(c)(5)(i)(B), as proposed, would require that, for a
noise abatement measure to be feasible, a highway agency must determine
that ``it is possible to design and construct a safe noise abatement
measure.'' This requirement would reiterate safety as a key concern of
both the FHWA and State highway agencies.
Section 772.9(c)(5)(ii)(A), as proposed, would require that
reasonableness include ``consideration of the desires of the property
owners of the impacted receivers.'' Section 772.11(f), as proposed,
describes how that would be determined.
Section 772.9(c)(5)(ii)(B), as proposed, would deviate from current
practice provided in the 1995 Policy and Guidance document. Highway
agencies currently determine a cost per square foot of their noise
abatement measures based on their own criteria and then choose from a
range of $15,000 to $50,000 per benefited receiver, as allowed by the
1995 Policy and Guidance document. The highway agency then multiplies
the square footage of the noise abatement measure by the cost per
square foot to get the total cost of the noise abatement measure. Once
the total cost of the noise abatement measure is determined, the
highway agency divides this total cost by the number of benefited
receivers. Instead of dividing by a cost/benefited receiver, some
highway agencies divide by a cost/benefited receiver/dB(A). In this
section, we propose to allow each highway agency to determine, with
FHWA approval, the allowable cost of abatement by determining a
baseline cost reasonableness value. This determination could include
the actual construction cost of noise abatement, cost per square foot
of abatement, and either the cost/benefited receiver or cost/benefited
receiver/dB(A).
Section 772.9(c)(5)(ii)(B), as proposed, would require a highway
agency to re-analyze the allowable cost for abatement at regular
intervals, not to exceed 5 years. This would ensure that the cost of a
noise abatement measure is reassessed for inflation of construction
costs. Section 772.9(c)(5)(ii)(B), as proposed, would also give a
highway agency the option of justifying, for FHWA approval, different
cost allowances for a particular geographic area(s) within the State.
This proposed change would provide flexibility to the highway agency
when developing its allowable cost of abatement. If the highway agency
develops different cost allowances for particular geographic areas, the
highway agency would be required to consistently apply these
methodologies as would be required by proposed section 772.7(b).
Section 772.9(c)(5)(iii), as proposed, would allow a highway agency
to consider other reasonableness factors, including the date of
development, length of exposure to highway traffic noise impacts,
exposure to higher absolute highway traffic noise levels, changes
between existing verses future build conditions, mixed zoning
development, and implementation of noise compatible planning concepts.
Only the reasonableness factors listed in proposed section 772.9(c)(5)
would be allowed on Federal-aid highway projects.
Section 772.9(d), as proposed, would deviate from the 1995 Policy
and Guidance document regarding third party funding for noise
abatement. The 1995 Policy and Guidance document allows third party
funding to pay for the difference between the actual cost of a noise
abatement measure and the reasonable cost, as long as it is done in a
nondiscriminatory manner. It is the FHWA's position that, in order to
comply with the requirements of Title IV and the Executive Order on
Environmental Justice (E.O. 12898), it is only acceptable to permit a
third party funding on a Type I or Type II Federal-aid highway project
if the noise abatement measure would be considered feasible and/or
reasonable without the additional funding. The determination of
feasibility and reasonableness to fund the construction of a noise
abatement measure would be based solely on the highway agency's
requirements for determining feasibility and reasonableness. However,
it would be acceptable for a Federal-aid highway project, either Type I
or Type II, to allow a third party to contribute funds to make
functional (e.g., absorptive treatment, access doors) or aesthetic
enhancements to a noise abatement measure already determined feasible
and reasonable.
Section 772.9(e), as proposed, would allow a highway agency to
average the cost of noise abatement measures among benefited receivers
within a common noise environment for both Type I and Type II projects,
and average the cost of noise abatement measures. Some highway agencies
currently use cost-averaging practices. This proposed language would
provide a parameter for

[[Page 47767]]

this practice to allow uniform and consistent application. This
parameter would include ``within a common noise environment.'' A common
noise environment would be defined in proposed section 772.5(p) of this
NPRM.
Section 772.11(c), as proposed, would modify the current regulation
by requiring a highway agency to consider abatement measures for an
identified noise impact. The abatement measures listed in section
772.13(c) would be eligible for Federal funding and, at a minimum, the
highway agency would be required to consider noise abatement in the
form of a noise barrier. The noise abatement measures listed in section
772.13(c), as proposed, would be eligible for Federal-aid funding but a
highway agency would not be required to consider each noise abatement
measure listed in proposed section 772.13(c). The only noise abatement
measure a highway agency would be required to consider would be a noise
barrier.
Section 772.11(d), as proposed, would clarify the meaning of
``substantial noise reductions'' by adding ``which at a minimum, shall
be at least 5 dB(A) for the majority of the impacted receivers.''
Impacted receivers would be defined in section 772.5(l), as proposed,
and the definition of majority would be included in proposed section
772.9(c)(5)(i)(A).
Section 772.11(e), as proposed, would remove the phrase ``final
environmental impact statement'' and add the full range of
environmental documentation to include ``Categorical Exclusion, Finding
of No Significant Impact and Record of Decision.'' Section
772.11(e)(1), as proposed, would switch the order of ``reasonable and
feasible'' to ``feasible and reasonable.'' In the process of assessing
a noise abatement measure, it is not logical to consider cost or views
of the impacted receivers if the noise abatement measure has not been
first assessed to determine if it is feasible, as defined in section
772.9(c)(5)(i), as proposed. Section 772.11(e)(2), as proposed, would
remove ``no apparent solution'' and replace it with ``no noise
abatement measures are feasible and reasonable.''
Section 772.11(f), as proposed, would clarify methods for
soliciting the viewpoints of the benefited property owners by requiring
a highway agency to solicit the viewpoints from all and receive
responses from a majority of the benefited property owners. It is the
FHWA's position that highway agencies should make good-faith efforts to
solicit the viewpoints of all benefited property owners, since it
relates to the reasonableness determination of noise abatement
measures. Majority would mean at least one percentage point over 50
percent. This section also would require a highway agency to solicit
only the viewpoints of the property owner(s) of a benefited receiver
when determining reasonableness of a noise abatement measure. A highway
agency would not consider the viewpoints of other entities to determine
reasonableness unless explicitly authorized by the property owner(s).
It is the position of FHWA that only the owners of the impacted
property should have a deciding viewpoint on the reasonableness of a
noise abatement measure, since owners have vested financial interests
in the property.
Section 772.11(h), as proposed, would clarify the FHWA's position
on noise analyses prepared for design-build projects. The stated goal
of 23 CFR 636 is to ensure an objective National Environmental Policy
Act (NEPA) process. The regulation is clear that final design cannot
occur until NEPA is complete. The NEPA process includes the technical
studies the NEPA decisionmakers rely on to develop the NEPA document
and the NEPA decision document. This proposed provision would ensure an
objective NEPA process by preventing the contractor from making NEPA
decisions based solely on cost, which could potentially violate the
conflict of interest requirements in 40 CFR 1506(c). The design-build
regulation at 23 CFR 636.109(b) states that the design-build contract
must include appropriate provisions ensuring that all environmental and
mitigation measures identified in the NEPA document will be implemented
and that the design-builder must not prepare the NEPA document or have
any decision making responsibility with respect to the NEPA process. In
order to comply with these provisions, a highway agency would be
required to complete a technical noise analysis and abatement design as
part of NEPA and the preliminary design. This is necessary to avoid a
minimalist approach to noise abatement where the abatement measure is
designed to the NAC or feasibility criterion, rather than to achieve a
substantial reduction in accordance with the 1995 Policy and Guidance
and to satisfy section 772.11(c), as proposed.
Section 772.13(a), as proposed, would clarify that the requirements
of proposed sections 772.13(a)(1)-(2) would be required for both Type I
and Type II projects. Section 772.13(a)(2), as proposed, would combine
sections 772.13(a)(2)-(3) in the current regulation to state
``[a]batement measures have been determined to be feasible and
reasonable per Sec. 772.9(c)(5) of this chapter.'' By changing this
sentence to include feasible and reasonable we would incorporate the
intent in sections 772.13(a)(2)-(3).
Section 772.13(c), as proposed, would rename the subsection as
``Noise Abatement Measures'' to delineate clearly the purpose of the
proposed section. Section 772.13(c), as proposed, lists the five noise
abatement measures available for Federal-aid funding. The current
regulation contains six noise abatement measures. We propose combining
current sections 772.13(c)(3) and 772.13(c)(4), which deal with noise
barriers as noise abatement measures. We propose to list noise barriers
as the first noise abatement measure. Noise barriers currently are
listed in sections 772.13(c)(3) and 772.13(c)(4), and we propose to
list them in section 772.13(c)(1) solely because they are the most
frequently used form of noise mitigation. The remaining noise abatement
measures provided in the current regulation are listed in sequential
order in this proposed section.
Section 772.13(c)(1), as proposed, would clarify the FHWA's
position on Federal-aid funding for landscaping. This proposed language
would replace section 772.13(c)(3) while retaining the intent of the
current regulation. Section 772.13(c)(5), as proposed, would clarify
that noise insulation of public use or nonprofit institutional
structures would be eligible for Federal funding.
Section 772.13(d), as proposed, would require highway agencies to
define severe noise impacts in accordance with proposed section
772.5(s). The proposed changes to this section would clarify the FHWA's
position on the process required for a severe noise impact on a
Federal-aid highway project. A noise analysis considers the worst-case
noise environment for the design year of the Federal-aid highway
project; therefore, it is the FHWA's position that the severe noise
impact would be derived from the ``future build condition''; not the
existing condition. We also propose that the highway agency first
determine if the abatement measures listed in paragraph (c) of this
section provide feasible and reasonable exterior noise abatement for
severe noise impacts. If exterior noise abatement is not achievable,
the highway agency may consider the following options; however, they
shall be considered in sequence and submitted for FHWA approval, on a
case-by-case basis. These options are listed in proposed sections
772.13(d)(1) and 772.13(d)(2), respectively. It is the FHWA's position
to first allow highway agencies to

[[Page 47768]]

exceed their allowable cost of abatement. While the 1995 Policy and
Guidance document does not mention exceeding the highway agency's
allowable cost of abatement as an option, it is the FHWA's position
that this is the first logical option to consider. If this were not a
viable option due to excessive cost, then the highway agency would have
the option of noise insulating a privately owned structure. Typically,
noise insulating refers to providing additional wall insulation or
replacement windows. The 1995 Policy and Guidance document refers to
noise insulating privately owned structures as an abatement option for
severe noise impacts. These proposed changes would maintain the intent
of the current regulation on severe impacts, while providing
clarification and flexibility to highway agencies seeking additional
abatement options for severe impacts.
Section 772.13(e), as proposed, would be renamed ``Abatement
Measure Reporting'' to delineate clearly that this section would
require each highway agency to report all constructed noise abatement
measures. The FHWA had requested the information proposed in this
paragraph from highway agencies up to December 31, 2007, in the form of
a noise barrier inventory. This information is helpful in providing a
national inventory of noise barrier location, cost, materials and size.
The information reported by highway agencies up to and including 2004
may currently be found at: http://www.fhwa.dot.gov/environment/ab_
noise.htm.
Section 772.15(a)(i), as proposed, would require a highway agency
to inform local officials of ``noise compatible planning concepts.''
The FHWA has supported the concepts surrounding noise compatible
planning since the early 1970s, starting with the publication of ``The
Audible Landscape: A Manual for Highway Noise and Land Use'' (http://
www.fhwa.dot.gov/environment/audible/index.htm). Noise compatible
planning encourages the location of less noise-sensitive land uses near
highways, promotes the use of open space separating roads from
developments, and suggests special construction techniques that
minimize the impact of noise from highway traffic.
Section 772.15(a)(ii), as proposed, would clarify section 772.15(a)
of the current regulation while retaining the intent of the current
regulation, which is to provide estimates of future noise levels at
various distances from the highway project. The proposed language would
specify that the distance from the highway would be from the edge of
the near travel lane to the point highway agency's ``approach''
criteria. This clarification would apply only within the project area.
Section 772.15(b), as proposed, would require a highway agency
choosing to use the date of development as one of the factors in
determining the reasonableness of a noise abatement measure to have a
statewide outreach program to inform local officials and the public on
the items in sections 772.15(a)(i)-(iv), as proposed. As discussed
above, the FHWA has promoted noise compatible planning since the 1970s.
Although land use control is a responsibility of local governments, it
is the FHWA's position that, if a highway agency chooses to use the
``date of development'' as a reasonableness factor, it should be
required to promote the concepts of noise compatible planning through
an outreach program. This outreach program would allow all local
jurisdictions and the public within the State the opportunity to be
informed on the concepts of noise compatible planning, possibly giving
way to these concepts being implemented and therefore avoiding, or at
least lessening, the number of traffic noise impacts near highways.
Section 772.17(a), as proposed, would make two editorial changes.
In May 2007, the FHWA moved to 1200 New Jersey Avenue, SE., Washington,
DC 20590. Additionally, the Internet site www.trafficnoisemodel.org no
longer exists. All information regarding the FHWA Traffic Noise Model
(TNM) may be found at http://www.fhwa.dot.gov/environment/noise/
index.htm.
Section 772.17(b), as proposed, would allow highway agencies the
option to use the FHWA TNM Look-up Program (FHWA TNM Look-up) as a
screening tool to determine the absence of potential noise impacts or
if a more detailed analysis is needed with the FHWA TNM. The additional
items that would be required to be adhered to are contained in proposed
sections 772.17(b)(1)-(2).
Section 772.17(b)(1), as proposed, would prohibit a highway agency
using the FHWA TNM Look-up, in addition to the limitations as indicated
in Report No. FHWA-HEP-05-008, from using the FHWA TNM Look-up for
roadways with more than 2 travel lanes, with total paved widths greater
than 24 feet including shoulders and median, or containing
intersections.
Section 772.17(b)(2), as proposed, would require that, if a highway
agency chooses to use the FHWA TNM Look-up program, the results must be
evaluated with at least a 5 dB(A) safety factor. This requirement would
result from the FHWA TNM Look-up program's simple highway geometries
and resulting limitations. Section 772.17(b)(2)(ii), as proposed, also
recommends that, if the output from the FHWA TNM Look-up is greater
than 5 dB(A) from the NAC and/or the comparison between the existing
condition to future build conditions is less than the highway agency's
definition of substantial noise increase, the highway agency should
document the results indicating no impacts for the project. These
requirements would ensure the proper assessment of traffic noise
impacts.
Section 772.17(b)(3), as proposed, would prohibit a highway agency
from using the FHWA TNM Look-up to determine feasible and reasonable
noise abatement. It is not the intent of the FHWA TNM Look-up program
to determine feasible and reasonable noise abatement, nor is it capable
to assist in such a determination.
Section 772.17(c), as proposed, would include a new sentence that
would permit a highway agency to use noise contour lines for land use
planning but not to determine traffic noise impacts. Noise contours are
appropriate to use as a tool to graphically educate local governments
and the public about the existing and future noise conditions in a
project area, but not to determine traffic noise impacts. Traffic noise
impacts should be determined in accordance with proposed section
772.17(a).
In Table 1 of Part 772 -NAC, as proposed, the format and column
headings as well as the ``Activity Description'' for both Activity
Category B and E would be changed. The first column of Table 1,
however, would remain unchanged. The proposed language would retain the
second and third columns' existing titles, ``Leq(h)'' and L10(h)'', but
incorporate them into a broader column heading entitled ``Activity
Criteria.'' The proposed changes would also remove the ``(Exterior)''
and ``(Interior)'' clarifiers within the ``Leq(h)'' and L10(h)''
columns and add them to a new column labeled ``Evaluation Location.''
Further, proposed language would rename the heading of the last column
as ``Activity Description.'' For Activity Category B and E, as
proposed, ``churches'' would be ``places of worship,'' as not all
religions worship in a ``church.'' Finally, Table 1, as proposed, would
include ``cemeteries, campgrounds, trails, and trail crossings'' in
Activity Category B. The inclusion of these activities is supported by
a June 16, 1995, FHWA memo (http://www.fhwa.dot.gov/environment/noise/

[[Page 47769]]

cemetery.pdf) indicating these activities should be considered an
Activity Category B land use. These activities should be assessed in
the same manner as the other special land use facilities in the
description of proposed section 772.5(e).
In Table 1, as proposed, a second footnote would be added. This
footnote is associated with the ``Activity Criteria'' and would state
that ``[t]he Leq(h) and L10(h) Activity Criteria values are for impact
determination only, and are not design standards for noise abatement
measures.'' This is supported by the 1995 Policy and Guidance document
which states ``[t]raffic noise impacts can occur below the NAC. The NAC
should not be viewed as Federal standards or desirable noise levels;
they should not be used as design goals for noise barrier
construction.''
In Appendix A to Part 772--National Reference Energy Mean Emission
Levels as a Function of Speed, as proposed, would be removed. A
previous NPRM on 23 CFR 772 (FHWA Docket No. FHWA-2004-018309) stated
that the vehicle emission levels as graphically shown in Appendix A are
no longer needed ``since this technology has now been well established
and documented for more than two decades, the FHWA noise regulation no
longer needs to include any reference to a measurement report or to
vehicle emission levels. Therefore, the FHWA proposes to remove these
references from the regulation.'' While this previous proposal was
discussed in the ``Background'' section of the NPRM, FHWA's intent was
to remove both the references to Appendix A as well as Appendix A.
Therefore, we propose removing Appendix A.

Rulemaking Analyses and Notices

All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable, but the FHWA may issue a final
rule at any time after the close of the comment period. In addition to
late comments, the FHWA will also continue to file relevant information
in the docket as it becomes available after the comment period closing
date, and interested persons should continue to examine the docket for
new material.

Executive Order 12866 (Regulatory Planning and Review) and U.S. DOT
Regulatory Policies and Procedures

The FHWA has determined that this proposed rule would not be a
significant regulatory action within the meaning of Executive Order
12866 and would not be significant within the meaning of the U.S.
Department of Transportation regulatory policies and procedures.
The proposed amendments revise requirements for traffic noise
prediction on Federal-aid highway projects to be consistent with the
current state-of-the-art technology for traffic noise prediction. It is
anticipated that the economic impact of this rulemaking would be
minimal; therefore, a full regulatory evaluation is not required.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (RFA) (Pub. L.
96-354, 5 U.S.C. 601-612), the FHWA has evaluated the effects of this
proposed rule on small entities and anticipates that this action would
not have a significant economic impact on a substantial number of small
entities. The proposed amendment addresses traffic noise prediction on
certain State highway projects. As such, it affects only States, and
States are not included in the definition of small entity set forth in
5 U.S.C. 601. Therefore, the RFA does not apply, and the FHWA certifies
that the proposed action would not have a significant economic impact
on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

This NPRM would not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995,
109 Stat. 48). The actions proposed in this NPRM would not result in
the expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $121.8 million or more in any
one year (2 U.S.C. 1532). Further, in compliance with the Unfunded
Mandates Reform Act of 1995, FHWA will evaluate any regulatory action
that might be proposed in subsequent stages of the proceeding to assess
the affects on State, local, and tribal governments and the private
sector. Additionally, the definition of ``Federal Mandate'' in the
Unfunded Mandates Reform Act excludes financial assistance of the type
in which State, local, or tribal governments have authority to adjust
their participation in the program in accordance with changes made in
the program by the Federal government. The Federal-aid highway program
permits this type of flexibility.

Executive Order 13132 (Federalism)

This proposed action has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132, dated
August 4, 1999, and it has been determined that this proposed action
does not have a substantial direct effect or sufficient federalism
implications on States that would limit the policymaking discretion of
the States. Nothing in this proposed rule directly preempts any State
law or regulation or affects the States' ability to discharge
traditional State governmental functions.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.205,
Highway Planning and Construction. The regulations implementing
Executive Order 12372 regarding intergovernmental consultation on
Federal programs and activities apply to this program.

National Environmental Policy Act

The FHWA has analyzed this proposed action for the purpose of the
National Environmental Policy Act (42 U.S.C. 4321 et seq.) and
anticipates that this action would not have any effect on the quality
of the human and natural environment, since it proposes to update the
specific reference to acceptable highway traffic noise prediction
methodology and remove unneeded references to a specific noise
measurement report and vehicle noise emission levels.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. FHWA determined that
this NPRM would affect a currently approved information collection for
OMB Control Number 2125-0622, titled ``Noise Barrier Inventory
Request.'' OMB approved this information collection on July 30, 2008,
at a total of 416 burden hours, with an expiration date of July 31,
2011.

Executive Order 13175 (Tribal Consultation)

The FHWA has analyzed this proposed action under Executive Order
13175, dated November 6, 2000, and believes that this proposed action
would not have substantial direct effects on

[[Page 47770]]

one or more Indian tribes; would not impose substantial direct
compliance costs on Indian tribal governments; and would not preempt
tribal law. This proposed rulemaking primarily applies to noise
prediction on State highway projects and would not impose any direct
compliance requirements on Indian tribal governments nor would it have
any economic or other impacts on the viability of Indian tribes.
Therefore, a tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

The FHWA has analyzed this proposed action under Executive Order
13211, Actions Concerning Regulations that Significantly Affect Energy
Supply, Distribution or Use. We have determined that this proposed
action would not be a significant energy action under that order
because any action contemplated would not be likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Therefore, the FHWA certifies that a Statement of Energy
Effects under Executive Order 13211 is not required.

Executive Order 12630 (Taking of Private Property)

The FHWA has analyzed this proposed rule under Executive Order
12630, Governmental Actions and Interference with Constitutionally
Protected Property Rights. The FHWA does not anticipate that this
proposed action would affect a taking of private property or otherwise
have taking implications under Executive Order 12630.

Executive Order 12988 (Civil Justice Reform)

This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity and reduce burden.

Executive Order 13045 (Protection of Children)

The FHWA has analyzed this proposed action under Executive Order
13045, Protection of Children from Environmental Health Risks and
Safety Risks. The FHWA certifies that this proposed action would not
cause an environmental risk to health or safety that may
disproportionately affect children.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN number contained in the
heading of this document can be used to cross-reference this action
with the Unified Agenda.

List of Subjects in 23 CFR Part 772

Highways and roads, Noise control.

Issued on: August 21, 2009.
Victor M. Mendez,
Federal Highway Administrator.

In consideration of the foregoing, the FHWA proposes to revise part
772 of title 23, Code of Federal Regulations, as follows:

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

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

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

Sec. 772.1 Purpose.

To provide procedures for noise studies and noise abatement
measures to help protect the public health and welfare, to supply noise
abatement criteria, and to establish requirements for information to be
given to local officials for use in the planning and design of highways
approved pursuant to title 23 U.S.C.

Sec. 772.3 Noise Standards.

The highway traffic noise prediction requirements, noise analyses,
noise abatement criteria, and requirements for informing local
officials in this regulation constitute the noise standards mandated by
23 U.S.C. 109(1). All highway projects which are developed in
conformance with this regulation shall be deemed to be in accordance
with the FHWA noise standards.

Sec. 772.5 Definitions.

(a) Type I Project.
(1) The construction of a highway on new location, the addition of
new interchanges or ramps added to a quadrant to complete an existing
partial interchange;
(2) The physical alteration of an existing highway which
significantly changes either the horizontal or vertical alignment. The
physical alteration of an existing highway which the highway agency has
determined significantly changes either the horizontal or vertical
alignment. A factor for determining a significant change shall be a 3
dB(A) increase in the noise environment when comparing the existing
condition to the future build condition;
(3) The addition of a through-traffic lane(s). This includes the
addition of a through-traffic lane that functions as a HOV lane, High-
Occupancy Toll (HOT) lane or truck climbing lane; or,
(4) The addition of an auxiliary lane, when the auxiliary lane:
(i) Increases capacity;
(ii) Is, at a minimum, 1.5 miles long;
(iii) Is added between interchanges to improve operational
efficiency;
(iv) Functions as a through-traffic lane, regardless of length; or
(v) Significantly alters the horizontal or vertical alignment.
(b) Type II Project. A Federal or Federal-aid highway project for
noise abatement on an existing highway. For a Type II project to be
eligible for Federal-aid, the highway agency must develop and implement
a Type II program in accordance with section 772.7(c)(2).
(c) Type III Project. A Federal or Federal-aid highway project that
does not meet the classifications of a Type I or Type II project.
(d) Residence. A dwelling unit. Either a single family residence or
each dwelling unit in a multifamily dwelling.
(e) Special Land Use Facilities. All land uses listed in Table 1,
Noise Abatement Criteria (NAC), Activity Category B, except for
residences shall be considered ``special use facilities'' due to the
difficulty in determining the number of receivers.
(f) Multifamily Dwelling. A residential structure containing more
than one residence. Each residence in a multifamily structure shall be
counted as one receiver.
(g) Planned, Designed, and Programmed. A definite commitment to
develop land with an approved specific design of land use activities.
(h) Date of Public Knowledge. The date of approval of the CE, the
Finding of No Significant Impact FONSI, or the ROD.
(i) Existing noise levels. The noise resulting from the natural and
mechanical sources and human activity usually present in a particular
area.
(j) Traffic noise impacts. Highway traffic noise levels that
approach or exceed the NAC listed in Table 1 for the future build
condition; or future build condition noise levels that create a
substantial noise increase over existing noise levels.

[[Page 47771]]

(k) Design year. The future year used to estimate the probable
traffic volume for which a highway is designed.
(l) Impacted Receiver. The recipient of future build condition
traffic noise levels that either approach or exceed the NAC or future
build condition traffic noise level that substantially exceed the
existing traffic noise levels.
(m) Benefited Receiver. The recipient of an abatement measure that
provides at least a 5 d(B)A noise reduction for a receiver.
(n) Feasibility. The combination of acoustical and engineering
factors of a noise abatement measure.
(o) Reasonableness. The combination of social, economic and
environmental factors of a noise abatement measure.
(p) Common Noise Environment. A group of receivers exposed to
similar noise sources and levels; traffic volumes, traffic mix, and
speed; and topographic features. Generally, common noise environments
occur between two secondary noise sources, such as interchanges,
intersections, or cross-roads.
(q) Property Owner. An individual or group of individuals that own
property or a residence.
(r) Substantial Construction. The granting of building permit, the
filing of a plat plan, or the occurrence of a similar action prior to
right-of-way acquisition or construction approval for the original
highway.
(s) Severe Noise Impact. An absolute noise level in the future
build condition that is between 10 and 20 dB(A) Leq(h) over the NAC, or
a noise level increase between 30 and 40 dB(A) over the existing noise
levels.
(t) L10. The sound level that is exceeded 10 percent of the time
(the 90th percentile) for the period under consideration, with L10(h)
being the hourly value of L10.
(u) Leq. The equivalent steady-state sound level which in a stated
period of time contains the same acoustic energy as the time-varying
sound level during the same time period, with Leq(h) being the hourly
value of Leq.

Sec. 772.7 Applicability.

(a) This regulation applies to all Federal or Federal-aid Highway
Projects authorized under title 23, United States Code. Therefore, this
regulation applies to any highway project or multimodal project that:
(1) Requires FHWA approval regardless of funding sources, or
(2) Is funded with Federal-aid highway funds.
(b) This regulation shall be applied uniformly and consistently
statewide.
(c) This regulation applies to all Type I projects unless the
regulation specifically indicates that a section only applies to Type
II or Type III projects.
(1) The development and implementation of Type II projects are not
mandatory requirements of section 109(i) of title 23, United States
Code.
(2) If a highway agency chooses to participate in a Type II
program, the highway agency shall develop a priority system, based on a
variety of factors, to rank the projects in the program. This priority
system shall be submitted to and approved by FHWA before the highway
agency is allowed to use Federal-aid funds for a project in the
program.
(3) For a Type III project, a highway agency is not required to
complete a noise analysis or consider abatement measures.

Sec. 772.9 Analysis of traffic noise impacts and abatement measures.

(a) The highway agency shall determine and analyze expected traffic
noise impacts and alternative noise abatement measures to mitigate
these impacts by giving weight to the benefits and costs of abatement
and the overall social, economic, and environmental effects through
feasible and reasonable noise abatement measures.
(b) A traffic noise analysis shall be completed for:
(1) Each alternative under detailed study;
(2) Each Activity Category of the NAC listed in Table 1 that is
present in the study area;
(i) Activity Category A. This activity category includes lands on
which serenity and quiet are of extraordinary significance and serve an
important public need, and where the preservation of those qualities is
essential for the area to continue to serve its intended purpose.
Highway agencies shall submit justifications to the FHWA on a case-by-
case basis for approval of an Activity Category A designation.
(ii) Activity Category B. This activity category includes single-
family and multifamily residences, as well as a variety of special land
use facilities. Each highway agency shall adopt a standard practice for
analyzing these special land use facilities that is consistent and
uniformly applied statewide.
(iii) Activity Category C. This activity category is comprised of
commercial and industrial land use facilities.
(iv) Activity Category D. This activity includes undeveloped lands.
(A) A highway agency shall determine if undeveloped land is
planned, designed, and programmed for development. A milestone or
activity and its associated date for acknowledging when undeveloped
land is considered planned, designed, and programmed shall be the date
of issuance of a building permit, the date of final approval of the
development plan, the date of recording of the plat plan, or any other
date that demonstrates a local commitment for a specific design of land
use activities intended for development on the property.
(B) If undeveloped land is determined to be planned, designed, and
programmed, then the highway agency must determine noise impacts and,
if impacts are determined, must consider abatement measures.
(C) If undeveloped land is not planned, designed, and programmed
for development by the date of public knowledge, the highway agency
shall determine noise levels and document the results in the project's
environmental clearance documents and noise analysis documents. Federal
participation in noise abatement measures will not be considered for
lands that are not planned, designed, and programmed by the date of
public knowledge.
(v) Activity Category E. A highway agency should only conduct an
indoor analysis after fully completing an analysis of any existing
outdoor activity area(s).
(3) For a Type I project:
(i) At least 500 feet from all termini of the build alternative(s);
(ii) At least 500 feet from the edge of the near travel lane;
(iii) For additional travel lanes and new roadways, for both sides
of the road; and
(iv) For ramps and interchanges, within at least a 500-foot line of
the near travel lane for the project.
(c) The traffic noise analysis shall include a(n):
(1) Identification of existing activities, developed lands, and
undeveloped lands, which may be affected by noise from the highway;
(2) Determination and prediction of existing traffic noise levels;
and
(3) Determination of traffic noise impacts for the design year;
(i) Highway agencies shall establish an approach level to be used
when determining a traffic noise impact as at least 1 dB(A) less than
the Noise Abatement Criteria listed in Table 1;
(ii) Highway agencies shall define substantial noise increase
between 10 dB(A) to 15 dB(A) over existing noise levels. There is no
lower threshold limit associated with a substantial noise increase,
which is the difference between the existing and future noise levels.

[[Page 47772]]

(4) Assessment of Impacted and Benefited Receivers. Each highway
agency shall define the threshold for the noise reduction which
determines a benefited receiver as at least 5 dB(A).
(5) Examination and evaluation of feasible and reasonable noise
abatement measures for reducing the traffic noise impacts. Each highway
agency, with FHWA approval, shall develop feasibility and
reasonableness factors. These factors, at a minimum, shall include the
following:
(i) Feasibility:
(A) Achievement of at least a 5 dB(A) highway traffic noise
reduction at the majority of the impacted receivers; and
(B) Determination that it is possible to design and construct a
safe noise abatement measure.
(ii) Reasonableness:
(A) Consideration of the desires of the property owners of the
impacted receivers; and
(B) Cost of the highway traffic noise abatement measures. Each
highway agency shall determine, and receive FHWA approval for, the
allowable cost of abatement by determining a baseline cost
reasonableness value. This determination may include the actual
construction cost of noise abatement, cost per square foot of
abatement, and either the cost/benefited receiver or cost/benefited
receiver/dB(A). The highway agency shall re-analyze the allowable cost
for abatement on a regular interval, not to exceed 5 years. A highway
agency has the option of justifying, for FHWA approval, different cost
allowances for a particular geographic area(s) within the State.
(iii) In addition to the required reasonableness factors listed in
Sec. 772.9(c)(5)(ii), a highway agency may also include the following
reasonableness factors: date of development, length of exposure to
highway traffic noise impacts, exposure to higher absolute highway
traffic noise levels, changes between existing and future build
conditions, mixed zoning development, and noise compatible planning
concepts. No single reasonableness factor should be used as the sole
basis in determining reasonableness.
(d) On a Type I or Type II project, a highway agency shall only
allow a third party to contribute additional funds towards the
construction of a noise abatement measure or aesthetic treatments after
the highway agency has determined that the noise abatement measure is
feasible and reasonable.
(e) On a Type I and Type II project, a highway agency may average
the cost of noise abatement among benefited receivers within a common
noise environment.
(f) A highway agency proposing to use Federal-aid highway funds for
a Type II project shall perform a noise analysis in accordance with
Sec. 772.9 of this part in order to provide information needed to make
the determination required by Sec. 772.11(a) of this part.

Sec. 772.11 Noise abatement.

(a) In determining and abating traffic noise impacts, a highway
agency shall give primary consideration to exterior areas. Abatement
will usually be necessary only where frequent human use occurs and a
lowered noise level would be of benefit.
(b) In situations where no exterior activities are to be affected
by the traffic noise, or where the exterior activities are far from or
physically shielded from the roadway in a manner that prevents an
impact on exterior activities, a highway agency shall use Activity
Category E as the basis of determining noise impacts.
(c) If a noise impact is identified, a highway agency shall
consider abatement measures. The abatement measures listed in Sec.
772.13(c) of this chapter are eligible for Federal funding. At a
minimum, the highway agency shall consider noise abatement in the form
of a noise barrier.
(d) When noise abatement measure(s) are being considered, a highway
agency shall make every reasonable effort to obtain substantial noise
reductions which, at a minimum, shall be at least 5 dB(A) for the
majority of the impacted receivers.
(e) Before adoption of a CE, FONSI, or ROD, the highway agency
shall identify:
(1) Noise abatement measures which are feasible and reasonable, and
which are likely to be incorporated in the project; and
(2) Noise impacts for which no noise abatement measures are
feasible and reasonable.
(f) A highway agency must solicit the viewpoints from all of the
benefited property owners, and receive responses from a majority of
those solicited. The highway agency shall only solicit the viewpoints
of the property owner(s) of a benefited receiver when determining
reasonableness of a noise abatement measure. The highway agency shall
not consider the viewpoints of other entities to determine
reasonableness, unless explicitly authorized by the benefited property
owner(s).
(g) The FHWA will not approve project plans and specifications
unless feasible and reasonable noise abatement measures are
incorporated into the plans and specifications to reduce the noise
impact on existing activities, developed lands or undeveloped lands for
which development is planned, designed, and programmed.
(h) For design build projects, the preliminary technical noise
study shall document all considered and proposed noise abatement
measures for inclusion in the NEPA document. Final design of design-
build noise abatement measures shall be based on the preliminary noise
abatement design developed in the technical noise analysis. Noise
abatement measures shall be considered, developed, and constructed in
accordance with this standard and in conformance with the provisions of
40 CFR 1506(c) and 23 CFR 636.109.

Sec. 772.13 Federal participation.

(a) Type I and Type II projects. Federal funds may be used for
noise abatement measures when:
(1) Traffic noise impacts have been identified; and
(2) Abatement measures have been determined to be feasible and
reasonable pursuant to Sec. 772.9(c)(5) of this chapter.
(b) For Type II projects.
(1) Federal funds may be used for noise abatement measures, only if
the funds:
(i) Were approved by FHWA before November 28, 1995; or
(ii) Were proposed along lands where land development or
substantial construction predated the existence of any highway.
(2) FHWA will not approve noise abatement measures for locations
where such measures were previously determined not to be reasonable and
feasible for a Type I project.
(c) Noise Abatement Measures. The following noise abatement
measures may be considered for incorporation into a Type I or Type II
project to reduce traffic noise impacts. The costs of such measures may
be included in Federal-aid participating project costs with the Federal
share being the same as that for the system on which the project is
located.
(1) Construction of noise barriers, including acquisition of
property rights, either within or outside the highway right-of-way.
Landscaping is not a viable noise abatement measure for Federal-aid
funding; however, landscaping may be included into the highway design
for aesthetic purposes.
(2) Traffic management measures including, but not limited to,
traffic control devices and signing for prohibition of certain vehicle
types, time-use restrictions for certain vehicle types, modified speed
limits, and exclusive lane designations.

[[Page 47773]]

(3) Alteration of horizontal and vertical alignments.
(4) Acquisition of real property or interests therein
(predominantly unimproved property) to serve as a buffer zone to
preempt development which would be adversely impacted by traffic noise.
This measure may be included in Type I projects only.
(5) Noise insulation of public use or nonprofit institutional
structures.
Maintenance costs for noise insulation are not eligible for
Federal-aid funding.
(d) Severe Noise Impact: Highway agencies shall define a severe
noise impact. If a severe traffic noise impact is expected in the
future build condition, the highway agency shall first determine if the
abatement measures listed in paragraph (c) provide feasible and
reasonable exterior noise abatement. If this is not achievable, the
highway agency may consider the following options in the order in which
they appear, and may recommend the option to FHWA for approval on a
case-by-case basis.
(1) Exceed the allowable cost of abatement for the construction of
feasible and reasonable exterior noise abatement, or
(2) Consider interior noise insulation of privately owned
structures. Maintenance costs for noise insulation are not eligible for
Federal-aid funding.
(e) Abatement Measure Reporting: Each highway agency shall maintain
an inventory of all constructed noise abatement measures. The inventory
shall include such parameters as abatement type, location, material,
cost, noise reduction, and other parameters as deemed appropriate by
FHWA. The FHWA will collect this information, in accordance with OMB's
Information Collection requirements.

Sec. 772.15 Information for local officials.

(a) To minimize future traffic noise impacts on currently
undeveloped lands, a highway agency shall inform local officials within
whose jurisdiction the highway project is located of:
(i) Noise compatible planning concepts;
(ii) The best estimation of the distances from the edge of the
travel lane of the highway improvement where the future noise levels
meet the highway agency's definition of ``approach'' for developed and
undeveloped lands or properties within the project limits;
(iii) Information that may be useful to local communities to
protect future land development from becoming incompatible with
anticipated highway noise levels; and
(iv) Non-eligibility for Federal-aid participation for a Type II
project as described in Sec. 772.11(b).
(b) A highway agency that chooses to use the date of development as
one of the factors in determining the reasonableness of a noise
abatement measure must have a statewide outreach program to inform
local officials and the public of the items in Sec. 772.15(a)(i)-(iv).

Sec. 772.17 Traffic noise prediction.

(a) Any analysis required by this subpart must use the FHWA FHWA
TNM, which is described in ``FHWA Traffic Noise Model'' Report No.
FHWA-PD-96-010, including Revision No. 1, dated April 14, 2004, or any
other model determined by the FHWA to be consistent with the
methodology of the FHWA TNM. These publications are incorporated by
reference in accordance with section 552(a) of title 5, U.S.C. and part
51 of title 1, CFR, and are on file at the National Archives and Record
Administration (NARA). For information on the availability of this
material at NARA, call (202) 741-6030 or go to http://www.archives.gov/
federal_register/code_of_federal_regulations/ibr_locations.html.
These documents are available for copying and inspection at the Federal
Highway Administration, 1200 New Jersey Avenue, SE., Washington, DC
20590, as provided in part 7 of title 49, CFR. These documents are also
available on the FHWA's Traffic Noise Model Web site at the following
URL: http://www.fhwa.dot.gov/environment/noise/index.htm.
(b) In lieu of the requirement in section 772.17(a), a highway
agency may choose to use the FHWA TNM Look-up, which is described in
``FHWA Traffic Noise Model Version 2.5 Look-up Tables User's Guide''
Report No. FHWA-HEP-05-008 as a screening tool to determine that
traffic noise impacts do not exist. The FHWA TNM Look-up provides a
reference of pre-calculated FHWA TNM results for simple highway
geometries and, therefore, has limitations associated with it as
described in Report No. FHWA-HEP-05-008. If a highway agency chooses to
utilize the FHWA TNM Look-up, the Federal-aid highway project shall be
within these limitations:
(1) The FHWA TNM Look-up shall not be used for roadways with more
than two travel lanes, with total paved widths greater than 24 feet
including shoulders and median, or containing intersections.
(2) The FHWA TNM Look-up results shall be evaluated with at least a
5 dB(A) safety factor, where:
(i) The output from the FHWA TNM Look-up is 5 dB(A) or less from
the NAC, then the highway agency must develop a project model in
accordance with Sec. 772.17(a).
(ii) The output from the FHWA TNM Look-up is greater than 5 dB(A)
from the NAC and/or the comparison between the existing condition to
future build conditions is less than the highway agency's definition of
substantial noise increase, then the highway agency may document that
there are no impacts associated with the project.
(3) The FHWA TNM Look-up shall not be used to determine feasible
and reasonable noise abatement measures.
(c) Noise contour lines may be used for land use planning but shall
not be used for determining highway traffic noise impacts.
(d) In predicting noise levels and assessing noise impacts, traffic
characteristics that would yield the worst traffic noise impact for the
design year shall be used.

Sec. 772.19 Construction noise.

For all Type I and II projects, a highway agency shall:
(a) Identify land uses or activities that may be affected by noise
from construction of the project. The identification is to be performed
during the project development studies.
(b) Determine the measures that are needed in the plans and
specifications to minimize or eliminate adverse construction noise
impacts to the community. This determination shall include a weighing
of the benefits achieved and the overall adverse social, economic, and
environmental effects and costs of the abatement measures.
(c) Incorporate the needed abatement measures in the plans and
specifications.

[[Page 47774]]

Table 1 to Part 772--Noise Abatement Criteria
[Hourly A-weighted sound level decibels (dBA) \1\]
----------------------------------------------------------------------------------------------------------------
Activity criteria \2\
Activity category -------------------------------- Evaluation location Activity description
Leq(h) L10(h)
----------------------------------------------------------------------------------------------------------------
A......................... 57 60 Exterior................. Lands on which serenity
and quiet are of
extraordinary
significance and serve
an important public need
and where the
preservation of those
qualities is essential
if the area is to
continue to serve its
intended purpose.
B......................... 67 70 Exterior................. Picnic areas, recreation
areas, playgrounds,
active sport areas,
parks, residences,
motels, hotels, schools,
places of worship,
libraries, hospitals,
cemeteries, campgrounds,
trails, and trail
crossings.
C......................... 72 75 Exterior................. Developed lands,
properties, or
activities not included
in Categories A or B
above.
D......................... .............. .............. ......................... Undeveloped lands.
E......................... 52 55 Interior................. Residences, motels,
hotels, public meeting
rooms, schools, places
of worship, libraries,
hospitals, and
auditoriums.
----------------------------------------------------------------------------------------------------------------
\1\ Either Leq(h) or L10(h) (but not both) may be used on a project.
\2\ The Leq(h) and L10(h) Activity Criteria values are for impact determination only, and are not design
standards for noise abatement measures.

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

BILLING CODE 4910-22-P