[Federal Register Volume 70, Number 62 (Friday, April 1, 2005)]
[Rules and Regulations]
[Pages 16707-16711]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-6514]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 772

[FHWA Docket No. FHWA-2004-18309]
RIN 2125-AF03


Procedures for Abatement of Highway Traffic Noise and 
Construction Noise

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: This final rule amends the FHWA regulation that specifies the 
traffic noise prediction method to be used in highway traffic noise 
analyses. The final rule requires the use of the FHWA Traffic Noise 
Model (FHWA TNM) or any other model determined by the FHWA to be 
consistent with the methodology of the FHWA TNM. It also updates the 
specific reference to acceptable highway traffic noise prediction 
methodology and removes references to a noise measurement report and 
vehicle noise emission levels that no longer need to be included in the 
regulation. Finally, it makes four ministerial corrections to the 
section on Federal participation.

DATES: Effective Date(s): May 2, 2005. The incorporation by reference 
of the publication listed in this rule is approved by the Director of 
the Federal Register as of May 2, 2005.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Ferroni, Office of Natural 
and Human Environment, HEPN, (202) 366-3233, or Mr. Robert Black, 
Office of the Chief Counsel, HCC-30, (202) 366-1359, Federal Highway 
Administration, 400 Seventh Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This document and all comments received by the U.S. DOT Docket 
Facility, Room PL-401, may be viewed

[[Page 16708]]

through the Docket Management System (DMS) at http://dms.dot.gov. The 
DMS is available 24 hours each day, 365 days each year. Electronic 
submission and retrieval help and guidelines are available under the 
help section of this Web site.
    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 Government 
Printing Office's Web page at: http://www.access.gpo.gov/nara.

Background

    The FHWA noise regulations (23 CFR 772) were developed as a result 
of the Federal-Aid Highway Act of 1970 (Pub. L. 91-605, 84 Sat. 1713) 
and applied to Federal-aid highway construction projects. This 
regulation requires a State DOT to determine if there will be traffic 
noise impacts in areas adjacent to federally-aided highways when a 
project is proposed for the construction of a highway on a new location 
or the reconstruction of an existing highway to either significantly 
change the horizontal or vertical alignment or increase the number of 
through-traffic lanes.
    Analysts must use a highway traffic noise prediction model to 
calculate future traffic noise levels and determine traffic noise 
impacts. The FHWA developed its first prediction model described in 
``FHWA Highway Traffic Noise Prediction Model'' (Report No. FHWA-RD-77-
108), December 1978.\1\
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    \1\ A printed copy of ``FHWA Highway Traffic Noise Prediction 
Model'' (Report No. FHWA-RD-77-108), December 1978, is available on 
the docket.
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    To incorporate over two decades of improvements in predicting 
highway traffic noise,as well as continued advancements in computer 
technology, the FHWA, with assistancefrom the Volpe National 
Transportation Systems Center in Cambridge, Massachusetts(Volpe Center) 
developed a new state of the art highway traffic noise prediction model 
in1998, ``FHWA Traffic Noise Model,'' Version 1.0 (FHWA TNM).\2\ This 
model bases itscalculations on totally new acoustical prediction 
algorithms as well as newly measuredvehicle emission levels for 
automobiles, medium trucks, heavy trucks, buses and motorcycles.
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    \2\ A printed copy of ``FHWA Traffic Noise ModelTechnical 
Manual'' (Report No. FHWA-RD-96-010), February 1998, is available on 
the docket.
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    The Volpe Center, using funds from the FHWA and 25 State 
departments oftransportation, directed and assisted the development of 
the FHWA TNM to accuratelyanalyze the extremely wide range of 
frequencies found in highway traffic noise. TheFHWA TNM also allows 
noise analysts to predict noise for both constant-flow andinterrupted-
flow traffic and enables them to accurately predict the results of 
multiplenoise barriers, as well as the effects of vegetation and rows 
of buildings along highways.
    As part of the initial establishment of the FHWA technical 
procedures for the analysisof highway traffic noise, e.g., traffic 
noise measurement and prediction methodologies,the FHWA's noise 
regulation included references to ``Sound Procedures for Measuring 
Highway Noise: Final Report ''\3\ and to vehicle emission levels. This 
was done to aid ineveryone's knowledge and understanding of the new 
technology of highway traffic noiseprediction. However, since this 
technology has now been well established and documented for more than 
two decades, the FHWA noise regulation no longer needs toinclude any 
reference to a measurement report or to vehicle emission levels.
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    \3\ A printed copy of ``Sound Procedures for Measuring Highway 
Noise: Final Report'' (Report No. FHWA-DP-45-1R), August 1981, is 
available on the docket.
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    With the development of the FHWA TNM, a new state of the art 
highway trafficnoise prediction model, the FHWA has proposed to update 
23 CFR part 772 to include thisnew model and remove reference to 
vehicle emission levels. Therefore, the FHWApublished a notice of 
proposed rulemaking (NPRM) on August 20, 2004, (69 FR 51620)proposing 
to require the use of the FHWA TNM or any other noise model determined 
bythe FHWA to be consistent with the FHWA TNM methodology.

Discussion of Comments

    The agency received comments from five State Departments of 
Transportation(Arizona, Colorado, Minnesota, New York and 
Pennsylvania), one State environmentalagency (Minnesota Pollution 
Control Agency), a noise consultant from the URSCorporation, and one 
private citizen.
    The New York and Pennsylvania State DOTs commented that they are 
currently usingthe FHWA TNM and have no objections amending the 
regulation to require the use of this methodology.
    The Arizona State DOT commented it was in the process of 
implementing the use ofthe FHWA TNM and, thus, had no comment on the 
practical effects of the change inprediction models. The Arizona State 
DOT also offered an additional commentregarding the use of pavement 
types in the FHWA TNM. This comment is beyond thescope of this rule.
    The Colorado State DOT commented that it generally supports the use 
of theFHWA TNM, and appreciated the FHWA's efforts to address the 
model's overpredictions. This comment acknowledged the FHWA and Volpe 
Center's determinationto correct the general over-predictions that FHWA 
TNM was making on vehicle emissionlevels. The FHWA TNM Version 2.5 is 
the result of these efforts, which essentially eliminates the vehicle 
emission level over-predictions.
    The Colorado State DOT expressed its concern on using national 
vehicle noise emission levels (REMELs). The FHWA has determined that 
differences in vehicle noise emission levels are not the result of a 
State-specific vehicle fleet and that further studies of the effects of 
pavement (type, surface texture, and temperature) and atmospherics on 
traffic noise levels need to be completed to determine their influence 
on vehicle noise emission levels. Until the effects of pavement and 
atmospherics are researched in greater depth, the FHWA strongly 
recommends the use of the FHWA TNM's national vehicle noise emission 
levels and strongly discourages the development of State-specific 
vehicle noise emission levels.
    The Colorado State DOT commented that it discovered several 
anomalies with the performance of the FHWA TNM related to pavement 
width, ground zones, and terrain lines. The FHWA and the Volpe Center 
have worked with the Colorado State DOT to resolve these issues. It was 
found that the anomalies stated by the Colorado State DOT were based on 
inappropriate comparisons. The sound level results, including trends, 
predicted with the FHWA TNM Version 2.5 were compared to expectations 
that were too generalized. The stated expectations did not always 
consider the specifics of each geometry and corresponding acoustical 
effects, and therefore were not location-dependent. A response has been 
sent to the Colorado State DOT on this matter offering detailed 
information on how to analyze highway sites to accurately identify 
location-dependent expectations. The FHWA and the Volpe Center will 
continue to offer the Colorado State DOT assistance in resolving their 
issues and providing guidance for those using the FHWA TNM in Colorado.

[[Page 16709]]

    Lastly, the Colorado State DOT commented that it believes the FHWA 
TNM predicts greater noise reductions than the old prediction model, 
which may result in noise barrier with shorter heights. The FHWA 
disagrees because the validation data taken to date [see Validation of 
FHWAs Traffic Noise Model (TNM): Phase 1, August 2002 and Preview of 
Validation of FHWA's Traffic Noise Model (TNM): Phase 1 (TNM v2.5 
Addendum), April 9, 2004 \4\] indicates that the FHWA TNM performs 
accurately when predicting noise barrier performance, and there are no 
inherent biases leading to the design of shorter noise barriers.
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    \4\ A printed copy of the ``Validation of FHWA's Traffic Noise 
Model (TNM): Phase 1'' (Report no. FHWA-EP-02-031), August 2002, and 
``Preview of Validation of FHWA's Traffic Noise Model (TNM): Phase 
1'' (TNM v2.5 Addendum), April 9, 2004 are available on the docket.
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    The Minnesota State DOT and the Minnesota Pollution Control Agency 
provided virtually the same two comments, one related to the FHWA TNM's 
methodology and the uncertainty in its ability to accurately predict 
noise levels, and the other related to the FHWA TNM's inability to 
calculate L10 to L50 noise levels.
    The Minnesota State DOT and the Minnesota Pollution Control Agency 
commented that the Stamina 2.0 based MINNOISE Version 0.2 generally 
proved more accurate than the FHWA TNM. This is a concern for Minnesota 
since Minnesota State law requiring that public health and welfare be 
addressed using the most accurate methods reasonable available. The 
Minnesota DOT is basing this comment on a report they generated 
entitled ``Mn/DOT Noise Model Comparison Summary'' which compared the 
FHWA TNM and the measured data at several locations. A copy of ``Mn/DOT 
Noise Model Comparison Summary,'' August 26, 2004 was provided as an 
attachment with Mn/DOTs comments and is available on the docket. After 
a thorough review and analysis of this comparison report and of 
additional information requested and received from the Minnesota State 
DOT, the FHWA and the Volpe Center found no indication that the 
discrepancies presented in the comparison report are due to problems 
associated with the FHWA TNM program. In fact, the review revealed that 
the discrepancies between the FHWA TNM and the measured data presented 
in the report are the result of an inaccurate measurement technique and 
three inaccurate modeling techniques.
    The inaccurate measurement technique relates to the accounting for 
wind speeds. The wind speeds presented in the comparison report 
exceeded the FHWA-prescribed limit of 12 miles per hour and should have 
been discoounted. The wind effects on sound propagation were also not 
considered when comparing measured data to predicted data. When wind is 
accurately accounted for in the model, comparative results improve 
between FHWA TNM and the measured data.
    The three inaccurate modeling techniques include the inaccurate use 
of parallel barrier configurations, ground types, and pavement types. 
Although the effects of parallel barrier were accounted for in the 
Minnesota State DOT's noise model, the effects were not accounted for 
in the FHWA TNM predictions. When the parallel barrier module in the 
FHWA TNM was used, the results again showed a more favorable comparison 
between FHWA TNM and the measured data. The Minnesota State DOT applied 
the ``field grass'' ground type to all FHWA TNM predicitons. This 
ground type is often misused, and the use of a more appropriate ground 
type, such as lawn, loose soil, or hard soil, again improves 
comparative results for FHWA TNM and measured data. Lastly, the use of 
``average'' pavement type of roadways was applied to all FHWA TNM 
calculations. The use of ``average'' pavement type is required for 
federally funded projects, but can be modified if substantiated and 
approved by hte FHWA. Pavements that are typically considered to be 
``loud,'' i.e., transverse-tined concrete pavements, were present for 
at least two of the four measurement sites. Since the comment is 
claiming lack of accuracy in the FHWA TNM, the actual pavement type was 
used despite the required use of ``average'' pavement type in the 
model. When actual pavement type is considered in the model, 
comparative results again improve for FHWA TNM versus the measured 
data.
    The second comment from the Minnesota State DOT and the Minnesota 
Pollution Control Agency indicated that Minnesota State law requires 
the use of L10 and L50 descriptors, which are not 
provided by the FHWA TNM. The Minnesota State DOT, due to its State 
law, will be provided the capabilities to calculate L10 and 
L50 in connection with the FHWA TNM. The FHWA and the Volpe 
Center are currently developing these capabilities, and will provide 
them to the Minnesota State DOT once completed. It is estimated that 
the L10 and L50 capabilities will be provided to 
Minnesota State DOT in late Spring 2005. The Minnesota State DOT will 
be the only State DOT to receive this capability, and will not be 
required to use the FHWA TNM until this capability is provided to them.
    A noise consultant of the URS Corporation indicated that he agreed 
with the proposal to require the use of the FHWA TNM. Additionally, the 
consultant recommended updating, rather than removing, the reference to 
the FHWA noise measurement report, indicating that local regulations 
using the report reference would become moot if the report reference 
were removed. The FHWA notes that FHWA reports may be referenced in 
local regulations, regardless of their inclusion in or exclusion from 
the FHWA noise regulations. Lastly, the consultant offered an 
additional comment that was beyond the scope of the NPRM.
    Finally, a private citizen offered a comment stating that the 
regulations from 1970 are outdated and obsolete, and should be updated.
    After considering all the submitted comments, the FHWA has decided 
to go final with the proposed rule with no changes.

Rulemaking Analyses and Notices

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

    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of Department of Transportation 
regulatory policies and procedures. It is anticipated that the economic 
impact of this rulemaking will be minimal, since the final rule simply 
revises 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.
    This final rule will not adversely affect, in a material way, any 
sector of the economy. In addition, these changes will not interfere 
with any action taken or planned by another agency and will not 
materially alter the budgetary impact of any entitlements, grants, user 
fees, or loan programs.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (RFA) (Pub. L. 
96-354, 5 U.S.C. 60 1-612) the FHWA has evaluated the effects of this 
action on small entities and has determined that the action will not 
have a significant economic impact on a substantial number of small 
entities. This final rule addresses traffic noise prediction on certain 
State highway projects. As such, it affects only States, and States are 
not

[[Page 16710]]

included in the definition of small entities.

Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 
109 Stat. 48). This rule will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $120.7 million or more in any one year (2 U.S.C. 1532). 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 action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, dated August 4, 1999, and 
the FHWA has determined that this 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 
final 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.

Paperwork Reduction Act

    This final rule contains no collection of information requirements 
for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3520.

National Environmental Policy Act

    The FHWA has analyzed this action for the purpose of the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.) and has determined 
that this action will not have any effect on the quality of the human 
and natural environment because it will 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.

Executive Order 12630 (Taking of Private Property)

    This action will not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Government Actions and interface with Constitutionally Protected 
Property Rights.

Executive Order 12988 (Civil Justice Reform)

    This final rule meets applicable standards Sec. Sec.  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)

    We have analyzed this final rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This action does not involve an economically significant rule 
and does not concern an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this final rule under Executive Order 13175, 
dated November 6, 2000, and believes that this action will not have 
substantial direct effects on one or more Indian tribes; will not 
impose substantial direct compliance costs on Indian tribal 
governments; and will not preempt tribal law. Therefore, a tribal 
summary impact statement is not required.

Executive Order 13211 (Energy Effects)

    We have analyzed this final rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a significant 
energy action under that order because it is not a significant adverse 
effect on the supply, distribution, or use of energy. Therefore, a 
Statement of Energy Effects under Executive Order 13211 is not 
required.

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 the Spring and Fall 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, Incorporation by reference, Noise control.

    Issued on: March 23, 2005.
Mary E. Peters,
Federal Highway Administrator.

0
In consideration of the foregoing, the FHWA is amending part 772 of 
title 23, Code of Federal Regulations, as follows:

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

0
1. the authority citation for part 772 continues to read as follows:

    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)


0
2. In Sec.  772.13 revise paragraphs (c) introductory text, (c)(1), 
(c)(4), and (d) to read as follows:


Sec.  772.113  Federal participation.

* * * * *
    (c) The noise abatement measures listed below may be incorporated 
in Type I and Type II projects 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) Traffic management measures (e.g., 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).
* * * * *
    (4) Construction of noise barriers (including landscaping for 
aesthetic purposes) whether within or outside the highway right-of-way.
* * * * *
    (d) There may be situations where severe traffic noise impacts 
exist or are expected, and the abatement measures listed above are 
physically infeasible or economically unreasonable. In these instances, 
noise abatement measures other than those listed in paragraph (c) of 
this section may be proposed for Types I and II projects by the highway 
agency and approved by the FHWA on a case-by-case basis when the 
conditions of paragraph (a) of this section have been met.
0
3. Revise Sec.  772.17(a) to read as follows:


Sec.  772.17  Traffic noise prediction.

    (a) Any analysis required by this subpart must use the FHWA Traffic 
Noise Model (FHWA TNM), which is

[[Page 16711]]

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 5 U.S.C. 552(a) and 1 CFR part 51 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 
tohttp://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, 400 
Seventh Street, SW., Room 3240, Washington, DC 20590, as provided in 49 
CFR part 7. These documents are also available on the FHWA's Traffic 
Noise Model Web site at the following URL:http://
www.trafficnoisemodel.org/main.html.
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[FR Doc. 05-6514 Filed 3-31-05; 8:45 am]
BILLING CODE 4910-22-M