[Federal Register Volume 75, Number 133 (Tuesday, July 13, 2010)]
[Rules and Regulations]
[Pages 39820-39839]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-15848]


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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: Final rule.

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SUMMARY: This final rule amends the Federal regulations on the 
Procedures for Abatement of Highway Traffic Noise and Construction 
Noise. The final rule clarifies and adds definitions, the applicability 
of this regulation, certain analysis requirements, and the use of 
Federal funds for noise abatement measures.

DATES: Effective date: July 13, 2011.
    Incorporation by reference: The incorporation by reference of 
certain publications listed in the regulations is approved by the 
Director of the Federal Register as of July 13, 2011.

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

    This document and all comments received by the DOT Docket Facility, 
Room PL-401, may be viewed through www.regulations.gov. Regulations.gov 
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 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 published a Notice of Proposed Rulemaking 
(NPRM) on September 17, 2009 (74 FR 47762). This final rule amends 
sections 772.1, 772.5 to 772.17, and Table 1--Noise Abatement Criteria. 
Sections 772.3 and 772.19 are not amended by this final rule, and 
Appendix A--National Reference Energy Mean Emission Levels as a 
Function of Speed, is removed by this final rule. This final rule also 
reorganizes various sections and parts of sections throughout the NPRM 
to institute a more logical order in the regulation. This 
reorganization does not change the meaning of the regulation and is not 
substantive in nature.
    In the preamble of the NPRM, the FHWA specifically asked for 
comments on the cost of abatement, third party funding for abatement, 
and maintaining a noise abatement inventory. The FHWA appreciates the 
comments received on this section. A summary of the comments received 
and the FHWA's response to these comments can be found in the 
discussion of comments section.
    The preamble of the NPRM requested comments on a proposed timeline 
for highway agencies to revise and have the FHWA approve their noise 
policies. Changes to this timeline have been made based on the comments 
received. Therefore, highway agencies will need to submit their revised 
noise policy, meeting the requirements of this final rule, to FHWA for 
approval within 6 months from the publication date of this final rule. 
The FHWA will review the highway agency's revised noise policy for 
conformance to the final rule and uniform and consistent application 
nationwide. The highway agency will provide FHWA a review schedule for 
approval of their revised noise policy that does not exceed 3 months 
from the highway agency's first submission of the revised noise policy 
to the FHWA. Each review of the document by FHWA should have a duration 
of at least 14 days for the initial and subsequent reviews. The highway 
agency's main point of contact for this review will be the FHWA 
Division Office in their State. Each highway agency's revised noise 
document will be concurrently reviewed by three FHWA offices to ensure 
uniform and consistent application of this final rule nationwide (one 
from the respective Division Office, one from the Resource Center, and 
one from Headquarters). 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 that require a noise analysis. 
The highway agency would be required to implement the new standard no 
later than 12 months from the date this final rule was published in the 
Federal Register.
    Grandfathering to the pre-final rule of 23 CFR 772 should be 
considered for Federal-aid highway projects for which the Categorical 
Exclusion, Finding of No Significant Impact, or Record of Decision has 
been signed by the effective date of this final rule. The State highway 
agency should coordinate with their FHWA Division Office to determine 
which projects, if any, should be completed under the previous 23 CFR 
772 and highway agency's previously approved noise policy.
    The FHWA has updated the Policy and Guidance document to reflect 
what is presented in this final rule. Highway

[[Page 39821]]

agencies should use this document for additional guidance when 
developing their revised noise policies in compliance with this final 
rule. To further assist highway agencies in revising their noise 
policies, the FHWA has developed a policy template for the highway 
agencies to use if they desire to do so. The updated guidance and 
optional policy template can be found at: http://www.fhwa.dot.gov/environMent/noise/index.htm.

Discussion of Comments

    The agency received comments from 25 State highway agencies 
(California, Florida, Georgia, Illinois, Kentucky, Louisiana, Maryland, 
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, 
North Carolina, New Jersey, New York, Ohio, Oregon, Pennsylvania, South 
Carolina, Tennessee, Texas, Virginia, Washington, and Wisconsin), 1 
county highway agency (Anoka County Highway Department, Minnesota), 1 
national organization (American Association of State Highway and 
Transportation Officials (AASHTO)), 7 noise consultants or consulting 
firms (Bergmann Associates, Inc., Bowlby & Associates, Environmental 
Acoustics, Inc., Environmental Science Associates, HNTB Corporation, 
Karel Cubic and Sharon Paul Carpenter), 1 university (East Carolina 
University), and 1 private citizen (Jennifer Leigh Hanson).
    There were several comments received that were general in nature. 
Three State highway agencies and one private consultant expressed that 
they generally agreed with the NPRM. One private consultant commented 
that the numbering of the regulation should not skip the even numbers. 
The FHWA will retain the numbering sequence that the regulation 
currently has. One private consultant commented on the parentheses used 
on the ``A'' of dB(A). It is FHWA's position that since the metric used 
to assess highway traffic noise levels is the A-weighted decibel, that 
decibel be illustrated by ``dB'' and the parentheses are needed around 
the ``A'' to illustrate the A-weighting. The parentheses are commonly 
used by the highway noise industry and will be retained in the final 
rule. Two State highway agencies and a university commented that quiet 
pavements should be allowed as a federally funded noise abatement 
measure. While the FHWA recognizes the efforts of many State highway 
agencies and the pavement industries, there are still too many unknowns 
that currently prohibit the use of pavement as a noise abatement 
measure. One national organization commented that while they recognize 
the importance of uniform and consistent application of this regulation 
nationwide, they encourage the FHWA to incorporate flexibility to 
accommodate regional and State-specific needs. The FHWA has 
incorporated flexibility while setting specific parameters throughout 
this final rule. There are numerous situations in the final rule where 
the State highway agency is permitted to completely define a definition 
or process, or define a definition or process within the parameters set 
by the FHWA.
    Based on comments received, the FHWA has changed the order and 
titles of several of the sections. The current section 772.17 ``Traffic 
Noise Predication'' is now section 772.9, with the same title. The 
current section 772.9 ``Analysis of traffic noise impacts and abatement 
measures'' is now section 772.11, with the title ``Analysis of traffic 
noise impacts.'' The ``and abatement measures'' of this title has been 
removed as it is redundant with the noise abatement section. The 
current section 772.11 ``Noise abatement'' is now section 772.13, with 
the new title of ``Analysis of noise abatement,'' which keeps 
consistent with the previous section dealing with the analysis of 
traffic noise impacts. The current section 772.13 ``Federal 
participation'' is now section 772.15 with the same title. The current 
section 772.15 ``Information for local officials'' is now section 
772.17 with the same title.

Section-by-Section Discussion of Comments

Section 772.1--Purpose

    In section 772.1, the FHWA is adding the word ``livability'' to 
this section, not based on comments received, but to incorporate the 
DOT Secretary's livability initiative.

Section 772.3--Noise Standards

    In section 772.3, no changes have been made to this section based 
on comments received; however, one State highway agency commented on 
the difference between the use of the words ``accordance'' and 
``conformance.'' The FHWA did not use these two terms to show a 
difference in meaning, but rather to illustrate agreement between both 
the regulation and the noise standard.

Section 772.5--Definitions

    In section 772.5, three State highway agencies and one private 
consultant commented that the definitions should be placed in 
alphabetical order. The FHWA agrees and the definitions are now listed 
and discussed in this final rule in alphabetical order. Also, one State 
highway agency suggested adding a definition for substantial noise 
reduction. The FHWA disagrees with the addition of ``substantial noise 
reduction'' since this principle is adequately addressed in the other 
sections of the final rule.
    Benefited Receptor, 10 State highway agencies, 1 national 
organization, and 5 private consultants commented on the definition of 
benefited receptor. Eleven commenters generally support the definition 
with minor or no revisions, with two comments desiring additional 
flexibility in defining and applying benefited receptors. Three 
comments concerned the issues of benefited receptors that are impacted 
and benefited receptors that are not impacted, and two comments were 
concerned with a discernable 5 dB(A) change in noise versus a 
perceptible 3 dB(A) change in noise.
    The FHWA has changed the definition to indicate that a benefited 
receptor is a ``recipient of an abatement measure that receives a noise 
reduction at or above the minimum threshold of 5 dB(A), but not to 
exceed the highway agency's reasonableness design goal.'' The 
definition retains the 5 dB(A) minimum threshold, but provides 
flexibility to State highway agencies by allowing the agency to define 
a benefited receptor as one benefitting from a reduction in noise level 
that is between 5 dB(A) and the agency's design goal. These changes 
ensure construction of effective noise abatement measures. Generally, a 
5 dB(A) change in noise levels is deemed discernible by a person with 
normal hearing. Noise abatement activities should result in a 
discernible 5 dB(A) change in noise level rather than a perceptible 3 
dB(A) change in noise level. This approach provides a consistent 
approach throughout this final rule. State highway agencies will still 
be able to differentiate between benefiting impacted and non-impacted 
receivers within their own policies. States may continue weighting 
impacted receptors greater than non-impacted receptors when making 
decisions about reasonableness of noise abatement.
    Common Noise Environment, seven State highway agencies, one 
national organization, and three private consultants commented on the 
definition of common noise environment. The definition was generally 
supported with minor changes or clarifications requested. Two 
commenters disagreed with the definition. Based on a comment from the 
New York DOT, the FHWA has added ``within the same Activity Category in 
Table 1'' to the definition,

[[Page 39822]]

with the other comments being addressed in sec. 772.13 Analysis of 
Noise Abatement. The FHWA is addressing the concept of common noise 
environment by defining the parameters for cost averaging to ensure 
cost averaging is applied uniformly and consistently nationwide. States 
can continue to consider each neighborhood as its own noise 
environment. The definition allows States flexibility to consider 
common noise environments within the project. A noise analysis should 
consider secondary sources, including non-highway noise sources, as 
part of the common noise environment. The final rule acknowledges that 
a common noise environment may span an entire project area and requires 
consideration of a common noise environment for land uses within the 
same activity category.
    Date of Public Knowledge, one State highway agency, one national 
organization, and one private consultant agreed and supported the 
addition of this definition. No changes were made based on comments 
received, however, ``CE'' and ``ROD'' were spelled out and ``as defined 
in 23 CFR 771'' was added to provide additional clarification.
    Noise Reduction Design Goal, based on comments received, the FHWA 
is defining ``noise reduction design goal'' to be ``[t]he optimum 
desired dB(A) noise reduction determined from calculating the 
difference between future build noise levels with abatement, to future 
build noise levels without abatement. The noise reduction design goal 
shall be at least 7 dB(A), but not more than 10 dB(A).'' The FHWA is 
defining ``Noise Reduction Design Goal'' to remove the disconnect that 
occurs with a 5 dB(A) substantial decrease criterion and substantial 
increase criteria's 5-15 dB(A) range.
    Design Year, two State highway agencies, one national organization, 
and a private consultant commented in support of the definition of 
design year. The FHWA made no changes to this definition in the final 
rule.
    Existing Noise Levels, two State highway agencies, one national 
organization, and one private consultant commented on the definition of 
existing noise levels. Most comments expressed support of the 
definition with minor clarifications. One State highway agency sought 
additional clarification on what are, and how to address, non-highway 
traffic noise sources. It is FHWA's position that an effective noise 
analysis should consider major noise sources in the environment 
including transportation, industry, and background noise.
    Feasibility, two State highway agencies, one national organization, 
and two private consultants commented on the definition of feasibility. 
The definition was generally supported with minor revisions. Based on 
the comments, the FHWA added ``considered in the evaluation of'' to the 
definition to clarify that the combination of acoustical and 
engineering factions shall be examined when considering noise abatement 
measures. Other comments dealt with how to apply feasibility and 
therefore are better suited to in sec. 772.13 where feasible noise 
abatement is further addressed.
    Impacted Receptor, four State highway agencies, one national 
organization, and two private consultants submitted comments generally 
supportive of the definition of impacted receptor, with minor revisions 
regarding redundancy, and allowing State highway agencies to define. 
The FHWA made several changes to this definition. The definition was 
simplified by removing the text that made it redundant with the 
definition of traffic noise impacts.
    L10, four State highway agencies, one national organization, and 
two private consultants commented on this definition. Many of the 
comments recommended the definition be deleted because the metric is 
obsolete. Although currently the L10 metric is not the most applicable 
metric to use on highway projects, the L10 and Leq metrics were a part 
of this regulation from its genesis. As a result, the State of 
Minnesota has a law requiring the use of L10, and therefore this metric 
will remain in the final rule with no changes.
    Multifamily Dwelling, six State highway agencies, a national 
organization, and two private consultants generally support the 
definition of multifamily dwellings with some minor revisions 
including, allowing the highway agency to define the term, and a 
request for addition flexibility and additional guidance from the FHWA. 
Massachusetts DOT disagreed with the definition, indicating that, as 
proposed, the definition of multifamily structures would skew the cost 
reasonableness calculations. It is FHWA's position that the purpose of 
any environmental analysis is to quantify impacts first, and explore 
methods to mitigate those impacts. The approach of only looking at 
first floor receptors ignores the possibility that impacts may occur at 
upper floor residences. The analysis to determine impacts shall be for 
all outdoor areas of frequent human use, both on the ground and on 
balconies (if present). This does not automatically result in feasible 
and reasonable noise abatement measures being determined for upper 
lever receptors. When a multifamily dwelling has a common exterior area 
of frequent human use, each unit of the multifamily dwelling that has 
access to that common exterior shall be included in the feasible and 
reasonable analysis. Multifamily development does not ``skew'' the 
determination of feasible and reasonable noise abatement measures. 
Providing noise abatement for multifamily development results in noise 
abatement for a higher number of people who may be using individual or 
common exterior areas. Frequency of use is not based on a comparison 
between how a single family dwelling would use their outdoor area 
versus how a multifamily dwelling would use their outdoor area. This 
process allows all receptors to be analyzed for noise impacts, and 
allows all impacted receptors to be considered for noise abatement. To 
add clarification, the FHWA added ``when determining impacted and 
benefiting receptors'' to the end of the second sentence.
    Noise Barrier, based on comments received, the FHWA is defining 
``noise barrier'' to be ``[a] physical obstruction that is constructed 
between the highway noise source and the noise sensitive receptor(s) 
that lowers the noise environment, to include stand alone noise walls, 
noise berms (earth or other material), and combination berm/wall 
systems.'' Noise barriers have been a longstanding proven noise 
abatement measure and therefore it is necessary to clarify that a noise 
barrier can be a wall, berm or a combination berm/wall system.
    Permitted, three State highway agencies, one national organization, 
one county highway department, and one private consultant commented 
that there should be more of a definite commitment to develop, and 
therefore suggested renaming this definition ``permitted'' instead of 
``planned, designed and programmed.'' There was also a comment to 
retain flexibility in interpreting a definite commitment. The FHWA 
agrees, and has changed this definition to ``permitted'' and removed 
all references to ``planned, designed and programmed'' from the final 
rule. The FHWA also added ``as evidence by issuance of a building 
permit'' to the definition.
    Property Owner, three State highway agencies, one national 
organization, and a private consultant generally supported the 
definition of ``property owner'' with minor changes. The FHWA modifies 
this definition to include ``holds a title,

[[Page 39823]]

deed or other legal documentation of ownership.''
    Reasonableness, two State highway agencies, one national 
organization, and two private consultants commented on the definition 
of ``reasonableness.'' The definition was generally supported with 
minor revisions. Based on the comments of a private consultant, the 
FHWA added ``considered in the evaluation of'' to the definition to 
clarify that the combination of social, economic and environmental 
factions shall be considered when considering noise abatement measures. 
Other comments provided suggested adding that reasonableness is based 
on common sense and good judgment. It is FHWA's position that this 
leaves reasonableness open to personal opinion rather than using an 
objective approach and has not made the suggested change in the final 
rule.
    Receptor, based on changes made from comments received, the FHWA is 
defining ``receptor,'' to be ``a discrete or representative location of 
a noise sensitive area(s), for any of the land uses list in Table 1.''
    Residence, four State highway agencies, one national organization 
and two private consultants commented on their general approval of this 
definition for ``residence.'' Additional comments include surveying 
multifamily residents and the use of a basic unit of measure. A 
discussion on how to survey multifamily residents is not appropriate 
for the definition section, but is address later in the final rule.
    The NPRM had proposed to define ``severe noise impact'' in sec. 
772.5(s). Nine State highway agencies, one county highway agency, one 
national organization, and five private consultants commented on the 
definition of severe noise impact. Based on the comments received, the 
FHWA has removed this definition from the final rule due to the 
conflict from the commenters on size and scale of the range, and since 
the definition would likely be misinterpreted to mean that the noise 
levels or noise level increases must fall within those ranges.
    The NPRM had proposed to define ``special land use facilities'' in 
sec. 772.5(e). Seven State highway agencies, one national organization, 
and three private consultants commented on the definition of ``special 
land use facilities.'' The FHWA removed this term from the final rule 
based on changes to the activity categories presented in Table 1. There 
are now seven activity categories in order to break out various land 
uses into more appropriate groupings.
    Statement of Likelihood, based on changes made from comments 
received, the FHWA is defining ``statement of likelihood,'' to be ``a 
statement provided in the environmental clearance document based on the 
feasibility and reasonableness analysis completed at the time of 
environmental document is being approval.''
    Substantial Construction, six State highway agencies, one county 
highway agency, one national organization and two private consultants 
comment on the definition of ``substantial construction.'' The 
definition was generally supported with recommendations. Based on the 
comments received, the FHWA is removing from the definition ``the 
filing of a plat plan or an occurrence of a similar action,'' and the 
word ``original'' before ``highway.'' The final rule will retain this 
definition to help State highway agencies clarify when development must 
occur for Type II eligibility and for potential Type I reasonableness 
considerations.
    Substantial Noise Increase, based on comments received from eight 
State highway agencies and two private consultants, the FHWA is 
defining ``substantial noise increase,'' to be ``One of two types of 
highway traffic noise impacts. For a Type I project, an increase in 
noise levels of 5 to 15 dB(A) in the design year over the existing 
noise level.''
    Traffic Noise Impacts, four State highway agencies, a national 
organization, and two private consultants commented on the definition 
of traffic noise impacts, with general support of the definition. 
Comments pertained to the inclusion of design year and reference to 
future condition as well as how to address other noise sources. The 
FHWA has added ``design year'' and ``design year build condition'' to 
the final rule. It is FHWA's position that an effective noise analysis 
should consider major noise sources in the environment including 
transportation, industry, and background noise. Without a project noise 
levels may exist that exceed the noise abatement criteria (NAC), but 
there are no impacts without a project.
    Type I Project, 14 State highway agencies, 1 national organization, 
and 6 private consultants commented on this section. The majority of 
the comments referenced the use of a 3 dB(A) increase in determining a 
significant change for a Type I project, followed by the redundancy of 
the first two sentences, and use of the word ``significant.'' The FHWA 
has revised this section to remove the first sentence and replace 
``significant'' with ``substantial.'' The use of a 3 dB(A) increase in 
determining a substantial change has been removed. The factor for 
determining a substantial horizontal change is a halving the distance 
between the noise source and the closest receiver between the existing 
condition to the future build condition. The factor for determining a 
substantial vertical change is ``a project that removes shielding 
therefore exposing the line-of-sight between the receptor and the 
traffic noise source exposing the receptor to additional traffic noise. 
This is done by either altering the vertical alignment of the highway 
or by altering the topography between the highway traffic noise source 
and the receptor.''
    Twelve State highway agencies, 1 national organization, and 4 
private consultant firms commented on what constitutes a Type I project 
for the addition of a through traffic lane or an auxiliary lane. 
Additional comments were provided on bus lanes, turn lanes, restriping 
travel lanes, weight stations, toll plazas, ride-share lots, and rest 
stops. Based on the comments received, the FHWA changed the definition 
of Type I project to now include bus lanes as through traffic lanes. 
The definition further clarifies that left turn lanes are not 
considered an auxiliary lane, and additional qualifying activities were 
added including ``restriping existing pavement for the purpose of 
adding a through-traffic lane or an auxiliary lane'' and ``the addition 
of a new or substantial alteration of a weigh station, rest stop, ride-
share lots and toll plaza.'' Finally, the FHWA adds clarifying language 
to make clear that ``if a project is determined to be a Type I project 
under this definition then the entire project area as defined in the 
environmental document is a Type I project.''
    Five State highway agencies and one private consultant supported 
this section and suggested moving the addition of new interchanges or 
ramps to an existing facility to its own subsection. The FHWA agrees. 
The final rule will reflect that the ``addition of new interchanges or 
ramps added to a quadrant to complete an existing partial interchange'' 
will be its own section under the Type I definition.
    Type II Project, one State highway agency and one private 
consultant commented that they were in support of this section on Type 
II projects. One State highway agency commented that it is not 
necessary for a State highway agency to develop a Type II program. The 
FHWA disagrees and did not change this section in the final rule. As 
supported in the 1995 guidance document, a Type II noise abatement 
program is appropriate to ensure statewide consistency.

[[Page 39824]]

    Type III Project, nine State highway agencies and two private 
consultants commented on the creation of a Type III project. The 
majority of the comments were in support of the Type III project type, 
with some asking FHWA to provide examples of Type III projects and to 
develop a template for documenting Type III. One commenter requested 
clarifying that Type III projects do not need a noise analysis 
performed. The FHWA agrees and, as a result, added ``Type III projects 
do not require a noise analysis'' to the definition of a Type III 
project. Examples of Type III projects and a template for documenting 
Type III projects will be provided in FHWA guidance.

Section 772.7--Applicability

    Two State highway agencies and a private consultant expressed 
support for the expansion of this section of the regulation. In sec. 
772.7(a)(1), one State highway agency expressed support for the 
proposed change, but a private consultant requested additional 
clarification because item (1) requires applicability for any project 
requiring ``FHWA approval regardless of funding sources.'' Therefore, a 
highway agency, other than the State DOT, such as a county or local 
highway agency is required to comply with 23 CFR 772 when one of its 
projects involves a new or modified access to an Interstate highway. 
This is a correct interpretation of what the FHWA intended, therefore 
no changes to this section were made.
    In sec. 772.7(a)(2), one State highway agency expressed support for 
this provision in the regulation. This applies to all Federal and 
Federal-aid highway projects authorized under Title 23, United States 
Code. Therefore, this regulation applies to any highway project or 
multimodal project that is funded with Federal-aid highway funds. A 
county highway agency stated that the above statement appears to 
contradict the statement made under the Regulatory Flexibility Act that 
the proposed rule would not have a significant economic impact on a 
substantial number of small entities. The rulemaking addresses the 
obligation of Federal funds to States for Federal-aid 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 
Regulatory Flexibility Act does not apply and the FHWA certifies that 
the final rule would not have a significant economic impact on a 
substantial number of small entities. Local public agencies have never 
had an exemption from complying with 23 CFR 772. The proposed rule does 
not present a new economic impact. The proposed changes in the rule 
will not result in an increase in the likelihood of construction of 
noise abatement.
    In sec. 772.7(b), no comments were received, but the FHWA has 
modified this section in the final rule to provide additional 
clarification and to tie into the proposed requirement in the NPRM that 
this final rule will require State highway agencies to revise their 
noise polices in conformance with this final rule. The section now 
states ``For FHWA approval, the highway agency shall develop noise 
policies in conformance with this regulation and shall apply these 
policies uniformly and consistently statewide.''
    Section 772.7(d) was proposed in the NPRM as sec. 772.7(c)(1), and 
is now listed as sec. 772.7(d). Two State highway agencies commented on 
this section. While one expressed support, the other State highway 
agency requested clarification on the intent of the section regarding 
use of State-only funds to avoid noise abatement. It is FHWA's position 
that the rule applies to any Federal or Federal-aid project. This means 
that the regulation applies to any project that includes a Federal 
action. No changes were made to this section.
    Section 772.7(e) was proposed in the NPRM as sec. 772.7(c)(2) and 
is now listed as sec. 772.7(e). A national organization, eight State 
highway agencies, and three private consultants commented on this 
section. Some comments offered support for this clarification of Type 
II program requirements, while others questioned the need for a 
priority system and the status of States that already have a system in 
place. A private consultant recommended insertion of language that the 
ranking system serves as a guide, but not a requirement for selection 
for funding. A State highway agency requested a template for a priority 
system. The FHWA disagrees with the need to incorporate the ranking of 
potential Type II project as language in the final rule. State highway 
agencies will submit their existing ranking system to FHWA for approval 
when they submit their updated noise policies. The concept of a 
priority system is not new. This is a longstanding practice on the part 
of States with active Type II programs. The priority system restricts 
construction of ``political'' noise barriers under the guise of a Type 
II program when a State does not actually have a Type II program in 
place and has no intent of developing a Type II program. The priority 
system ensures uniform and consistent application of this provision of 
the rule. The following was added to this section ``The highway agency 
shall re-analyze the priority system on a regular interval, not to 
exceed 5 years.'' A private consultant recommended adding a new section 
(3) to include ``If a highway agency chooses to participate in a Type 
II program, the highway agency must have a statewide outreach program 
to inform local officials and the public of the items in Sec.  
772.15(a)(i)-(iv).'' If States choose to participate in a Type II 
program, they should also act to encourage local communities to enact 
noise compatible land use planning to limit the expenditure of Federal 
highway dollars to construct Type II noise barriers in the future. The 
FHWA agrees with the concept, but not with the application of this 
idea. The circumstances that lead to a Type II project occurred in the 
past. State highway agencies should take the opportunity of a Type II 
project to inform local officials about noise compatible planning 
concepts to avoid future Type I projects. The development of this 
outreach effort should be a part of any Type II program.
    Section 772.7(f), was proposed in the NPRM as sec. 772.7(c)(3) and 
is now listed as 772.7(f). A State highway agency and a private 
consultant requested a listing of the types of projects classified as 
Type III. The FHWA believes the rule clearly states that Type III 
projects are any project that falls outside the definition of a Type I 
or Type II project. The FHWA noise guidance provides additional 
information on this topic. A private consultant suggested adding 
language that NEPA may require noise analysis on Type III projects. A 
State highway agency recommended changing ``not required'' to 
``optional.'' The FHWA declines to make these changes in the final 
rule. The proposed and final language does not prohibit States from 
performing a noise analysis on Type III projects if they determine an 
analysis is necessary due to unusual characteristics of a particular 
project. Two State highway agencies commented on this section. One 
recommended elimination of Type III as a descriptor and the other 
expressed approval of the new designation. The FHWA retains the Type 
III project designation with no changes.

Section 772.9--Traffic Noise Prediction

    Section 772.9, traffic noise prediction, is sec. 772.17 in the 
existing regulation. Moving the traffic noise prediction section from 
772.17 to 772.9 was done to place the activities associated with 
traffic noise prediction in chronological order with the overall 
procedures for

[[Page 39825]]

abating highway traffic noise. Due to the new numbering of this 
section, the provisions presented below are numbered and identified as 
presented in this final rule and not how they were presented in the 
NPRM.
    In sec. 772.9(a), one State highway agency and a private consultant 
commented that FHWA should continue to require use of the Traffic Noise 
Model (TNM) and remove reference to other models that may be compatible 
with TNM until alternate models are tested and approved for use through 
a change in the regulation. These entities further commented that FHWA 
should limit use of TNM to the most recent version. It is FHWA's 
position that the provision in the regulation to use other models 
determined compatible with TNM must appear in the regulation so that 
FHWA may work with other software developers in their efforts to 
implement the TNM acoustic code if their noise models for testing and 
approval. Therefore, ``or any other model determined to by the FHWA to 
be consistent with the methodology of the FHWA TNM'' will remain in the 
final rule. Lastly, the FHWA will update this regulation as necessary 
to require use of updated versions of the TNM.
    Ten State highway agencies, a national organization, and two 
private consultants expressed concerns about proposed restrictions on 
use of the TNM Lookup Tables; four State highway agencies recommended 
additional restrictions on the use of the TNM Lookup Tables, and one 
State highway agency along with three private consultants recommended 
eliminating use of the Lookup Tables, or developing a replacement. This 
final rule eliminates use of the TNM Lookup Tables in either form to 
predict noise levels on Federal or Federal-aid projects. The FHWA 
developed the Lookup tables to provide TNM users with a simple 
screening tool for highway analyses. The tables were to supplement TNM 
to obtain quick estimates. The intended use of the estimates is to 
inform planners about the potential scope of their project, or to 
educate the public. The Lookup Tables are not a substitute for the TNM 
or for routine use in performing a noise analysis. Many practitioners 
started using the Lookup Tables due to long calculation times inherent 
with the use of the FHWA TNM when compared with the previous model. 
However, the dramatically increased speed of computers currently 
available on the market reduces the model run times to a fraction of 
what could be accomplished a few years ago. Further, a narrow 
interpretation of the previous rule indicates the changes to the 
regulation requiring use of the FHWA TNM eliminated the option to use 
the TNM Lookup Tables. However, use of the TNM Lookup Tables continued 
as a legacy. The FHWA has removed this provision proposed in the NPRM 
from this final rule. The FHWA clarifies through this final rule that 
the TNM Lookup Tables are not an acceptable model for use on Federal or 
Federal-aid highway projects. The FHWA will not update the TNM Lookup 
Tables for future versions of the FHWA TNM. The FHWA will retract the 
allowable use of the TNM Lookup as it has outlived its intended use.
    In sec. 772.9(b), two State highway agencies and a university 
commented that quieter pavement should be allowed as a mitigation 
measure. As previously discussed, it is FHWA's position that there are 
still too many unknowns regarding the viability of quieter pavements as 
a mitigation measure. However, State highway agencies, the pavement 
industry, and the FHWA are researching various parts of this overall 
initiative. The FHWA is actively researching how to better incorporate 
more specific pavement types in the FHWA TNM. As a result the FHWA 
added this provision which states, ``average pavement type shall be 
used in the FHWA TNM for future noise level prediction unless a highway 
agency substantiates the use of a different pavement type for approval 
by the FHWA.'' However, the FHWA is actively seeking highway agencies 
to assist in our research to better account for pavements in the FHWA 
TNM by engaging themselves in the experimental use of the specific 
pavement types currently in the FHWA TNM on projects.
    In sec. 772.9(c), six State highway agencies, a national 
organization, and two private consultants questioned restrictions or 
wanted additional clarification on the use of noise contours. The final 
rule ties use of noise contours to information provided to local 
officials to satisfy sec. 772.17 Information for Local Officials and 
permits use of contours for some preliminary studies.

Section 772.11--Analysis of Traffic Noise Impacts

    Section 772.11, titled ``analysis of traffic noise impacts,'' was 
sec. 772.9 in the proposed regulation. The FHWA has removed ``and 
abatement measures'' from the title of this section since sec. 772.13 
of the final rule now deals with abatement measures. Due to the new 
numbering of this section, the provisions presented below are 
identified as presented in this final rule and not how they were 
numbered in the NPRM. This and other organizational changes were done 
in response to a comment from a private consultant, who indicated that 
this section should separate the analysis and abatement portions into 
their respective sections of the regulation, and pointed out that there 
is a long-standing disconnect between the intent of this portion of the 
regulation and the practice of most State highway agencies in applying 
the regulation. The first condition is ``where no exterior activities 
are to be affected by the traffic noise.'' The typical application 
would be an apartment building with no outdoor balconies, patios, or 
common grounds activity areas. The second condition is ``where the 
exterior activities are far from or physically shielded from the 
roadway in a manner that prevents an impact on exterior activities.'' 
The implication of the second condition is that if the apartment, pool, 
and playground are on the side of the building away from the highway 
then one would need to consider the interior of the apartments facing 
the highway as Activity Category E. Few State highway agencies 
currently consider apartments as Category E. Instead, they analyze the 
playground and pool as exterior Category B, find that they are not 
impacted, and then fail to consider abatement for the apartments.
    In sec. 772.11, one State highway agency had a general comment 
requesting that FHWA provide an opinion on a highway agency changing 
its definition of ``substantial increase.'' It is the opinion of the 
FHWA that highway agencies may decide at its discretion to change 
established criterion within the allowable requirement of this final 
rule. However, highway agencies should consider past practices and the 
possible consequences of any changes they make to their noise policy 
and procedures.
    No comments were received on sec. 772.11(a), but to provide 
clarification on how to analyze projects, the FHWA added sec. 
772.11(a)(1) ``For projects on new alignments, determine traffic noise 
impacts by field measurements'' and sec. 772.11(a)(2) ``for projects on 
existing alignments, prediction of existing and design year traffic 
noise impacts.''
    In sections 772.11(a)(1) and (a)(2), three State highway agencies 
and two private consultants requested rewording of this section to 
clarify determination of existing and future noise levels. The final 
rule clarifies that existing levels are determined through measurement 
or prediction. This is because there are times when the ``existing'' 
condition and the current year are not the same year.

[[Page 39826]]

In this case, predicting existing noise levels is necessary. The final 
rule clarifies prediction of future noise levels. A State highway 
agency requested clarification on determining existing noise levels on 
new alignment projects; the final rule covers new alignment and 
modification of existing alignment scenarios.
    Two private consultants commented on sec. 772.11(b). One requested 
a definition of frequent human use and the other recommended a 
connection between exterior areas and frequent human use. The FHWA did 
not provide a definition for frequent human use, but did make the 
connection between exterior areas and frequent human use, by stating 
``In determining traffic noise impacts, a highway agency shall give 
primary consideration to exterior areas where frequent human use 
occurs.'' The FHWA also moved this provision to sec. 772.11 Analysis of 
traffic noise impacts.
    In sec. 772.11(c)(1), one State highway agency expressed support 
for this provision while a second State highway agency requested 
expansion of the language to allow analysis of a single worst-case 
alternative in place of similar multiple project alternatives. It is 
FHWA's position that the language in the final rule does not preclude 
analysis of a worst-case scenario during preliminary engineering and 
early environmental studies; however, the highway agency must analyze 
all alternatives under detailed study as part of a final noise 
analysis.
    Under sec. 772.11(c)(2), one national organization, four State 
highway agencies, and one private consultant sought additional 
clarification on the level of analysis necessary for various land use 
categories and project alternatives. They also suggested deemphasizing 
land uses previously listed in Activity Category C, which are primarily 
commercial activities. It is the FHWA's position that this provision of 
the rule does not require a separate noise analysis for each Activity 
Category. The rule requires that the noise analysis include a complete 
noise analysis of all land uses inside the project study area. Past 
practice of many highway agencies was to ignore certain Activity 
Categories, particularly Category C, because the highway agency 
determined that it is not reasonable to provide noise abatement for 
that Activity Category. Reasonableness decisions cannot precede 
determination of impacts. The regulation first requires consideration 
of impacts, then consideration for abatement. The focus of a noise 
analysis has always been, and will continue to be, on exterior areas of 
frequent human use. Consideration of Activity Category C land use is 
unlikely to result in a large increase in the number of receivers 
within a noise model because Category C receptors do not necessarily 
have areas of frequent human use.
    In sec. 772.11(c)(2)(i), three State highway agencies and two 
private consultants commented on Activity Category A, offering general 
support or minor wording changes. One of the State highway agencies 
requested additional clarification on when to start the process to 
designate a land use as Category A and suggested that this may work 
better through inter-agency consultation rather than through FHWA 
approval. The FHWA has determined the recommended wording changes are 
unnecessary. It is appropriate for the determination of Activity 
Category A receptors to occur early in the process and through the 
inter-agency consultation process; however, the final determination for 
this designation remains a FHWA decision. To further clarify Activity 
Category A, ``the exterior impact criteria for lands * * *.'' has been 
added to this provision.
    In sec. 772.11(c)(2)(ii), in response to comments received, the 
designation of Activity Category B has been revised to include the 
exterior criteria for only residential land uses. The provision states, 
``[t]his activity category includes the exterior impact criteria for 
single-family and multifamily residences.''
    In sec. 772.11(c)(2)(iii), eight State highway agencies, one 
national organization, and one private consultant commented their 
general support of this provision and requested that FHWA provide a 
standardized method to evaluate reasonableness for special land use 
facilities. The term ``special land use facilities'' has been removed 
from the final rule. There are several logical and fair ways to 
evaluate certain types of land use, one approach is the Florida 
Department of Transportation's method. The FHWA will provide examples 
of other methods in the updated noise guidance document. The final rule 
changes references from special land uses to the actual activity 
category based on the reorganized Table 1. To provide additional 
clarification, the designation of Activity Category C has been revised 
to include a variety of land use facilities as listed in Table 1. This 
provision states ``Activity Category C. This activity category includes 
the exterior impact criteria for a variety of land use facilities. Each 
highway agency shall adopt a standard practice for analyzing these land 
use facilities that is consistent and uniformly applied statewide.''
    In sections 772.11(c)(2)(iv), (v), and (vi), three State highway 
agencies and three private consultants offered comments on this 
section. Two highway agencies offered general support, however, the 
remaining highway agency and the private consultants offered 
suggestions on consideration of commercial land use in a noise 
analysis. The final rule modifies Table 1 to segregate certain 
commercial land use from noise generating commercial and industrial 
land uses.
    One private consultant requested additional clarification on the 
timing of interior noise studies in sec. 772.11(c)(2)(iv). The 
consideration for the analysis may occur prior to noise monitoring. It 
is FHWA's position that the noise analyst should be able to identify 
interior locations that require monitoring during preliminary field 
work while developing a monitoring plan. One national organization and 
eight State highway agencies requested additional clarification on the 
analysis requirements for interior areas. It is FHWA's position that an 
interior analysis is only required when all exterior analysis 
alternatives are exhausted or in cases where there are no exterior 
activities. To provide extra clarification on which land use categories 
can be considered for an interior noise analysis, the FHWA has 
indicated ``exterior'' and/or ``interior'' within each Activity 
Category.
    In sec. 772.11(c)(2)(v), in response to comments received, the 
designation of Activity Category E has been revised to address the 
exterior impact criteria for less noise sensitive developed lands.
    In response to comments received, a new Activity Category F was 
created in sec. 772.11(c)(2)(vi) to include developed lands that are 
not sensitive to highway traffic noise.
    In sec. 772.11(c)(2)(vii), the FHWA provided clarification on 
undeveloped lands. Undeveloped lands were listed as Activity Category D 
in the NPRM, but due to the changes to Table I, undeveloped lands are 
now listed under Activity Category G in this final rule. Three State 
highway agencies commented that this section is overly broad for 
considering whether a property is planned for development and suggested 
limiting this consideration to issuance of a building permit. This 
final rule has revised the existing regulation to limit consideration 
to the issuing of a building permit. Five State highway agencies 
requested further clarification on the purpose of predicting noise 
levels on undeveloped land. It is FHWA's position that providing local 
officials with the best estimate of future

[[Page 39827]]

noise levels on undeveloped land is a longstanding requirement of 23 
CFR 772 and is necessary to help avoid future noise impacts due to 
incompatible development. The Pennsylvania DOT commented that 
predication of noise levels for undeveloped lands which contain 
threatened or endangered species could become problematic when 
coordinating with resource agencies. It is important to remember that 
23 CFR 772 is concerned with noise impacts on the human environment. 
Extrapolation of impact thresholds within the regulation to other 
species requires an incorrect interpretation of the regulation and the 
NAC. Additionally, concern about the effects of highway noise and 
actual impacts to species resulting from highway noise may occur in the 
absence of a noise analysis. Also, the current zoning of a property is 
an indicator of future development, but the zoning may change. The 
purpose of the information provided to local officials is avoiding 
future noise impacts. Section 17 of the final rule details the analysis 
requirements for information for local officials. As a result the FHWA 
has replaced ``planned, designed and programmed'' with ``permitted.'' 
Section 772.11(c)(2)(vii)(A) indicates that the date of issuance of a 
building permit shall be by the local jurisdiction or by the 
appropriate governing entity. Section 772.11(c)(2)(vii)(B) indicates 
that if ``undeveloped land is determined to be permitted, then the 
highway agency shall assign the land to the appropriate Activity 
Category and study it in the same manner as developed lands in that 
Activity Category.'' This is to ensure that a noise analysis is done 
for the permitted land use. Section 772.11(c)(2)(vii)(C) indicates that 
noise levels shall be determined in accordance with sec. 772.17(a).
    The FHWA received no comments on sec. 772.11(d) and (d)(1), but the 
FHWA wanted to clarify the intent of this section, sec. 772.11(d) now 
states ``the analysis of traffic noise impacts shall include a(n):''. 
This was done to clarify that 772.11(d)(1) to (4) all must be a part of 
a noise analysis.
    To provide additional clarification, the FHWA has added sections 
772.11(d)(2) and 772.11(d)(3) on validation and the noise meter type to 
be used on projects. Section 772.11(d)(2) states ``For projects on new 
or existing alignments, validate predicted noise level through 
comparison between measured and predicted levels'' and sec. 
772.11(d)(3) states ``Measurement of noise levels. Use an ANSI Type I 
or Type II integrating sound level meter.'' The inclusion on the type 
of noise meters to be used on a Federal-aid highway project is a result 
of industry standard and the FHWA guidance on which type of meters 
should be used.
    Thirteen State highway agencies, a national organization, two 
private consultants, and a private individual expressed concern about 
the 500' study area as proposed in sec. 772.11(d)(4). The final rule 
eliminates this provision and instead requires State highway agencies 
to determine project limits to determine all traffic noise impacts for 
the design year. This section now states ``Identification of project 
limits to determine all traffic noise impacts for the design year for 
the build alternative. For Type II projects, traffic noise impacts 
shall be determined from current year conditions.'' Two State highway 
agencies and one private consultant commented on sec. 772.11(d)(4), 
indicating that this section is inconsistent in that it discusses 
evaluation of impacts prior to a determination of future noise levels. 
This approach in the regulation may lead to some confusion. The FHWA 
reorganized the final rule to include separate sections requiring 
determination of noise levels and evaluation of noise impacts. Three 
State highway agencies commented that a disconnect occurs with a 5 
dB(A) substantial decrease criterion and a substantial increase 
criteria in the range of 10-15 dB(A). The FHWA is clarifying that a 5 
dB(A) reduction meets the acoustic feasibility requirement. 
Essentially, this reduction means that the noise abatement measure 
decreases noise impacts, but may not be optimal. To address this, FHWA 
introduces a design goal reasonableness criterion in the final rule. 
The final rule also expands substantial increase to a range of 5-15 
dB(A). This provides States with additional flexibility to define 
substantial increases. Three State highway agencies and two private 
consultants requested clarification or removal of the phrase ``lower 
threshold limit,'' in sec. 772.11(d)(3)(ii). The final rule clarifies 
this issue by stating in that, ``[t]he substantial noise increase 
criterion is independent of the absolute noise level.'' In the past, 
some highway agencies applied the substantial noise increase criterion 
by linking it to an absolute noise level, meaning that a substantial 
noise increase was only considered from that absolute noise level or 
higher noise level. Typically a highway agency's noise policy would 
state ``a substantial noise increase occurs when the design year noise 
level results in an increase of 15 dB(A) or more over existing noise 
levels as long as the predicted noise level is 55 dB(A) or above,'' or 
something similar. This language represented a misapplication of 23 CFR 
772 and the noise guidance, and could result in situations where 
receptors may experience noise increases of more than 15 dB(A), but 
there would not be a substantial impact. Any noise increase that meets 
or exceeds that State highway agency criteria for a substantial 
increase is an impact, regardless of the absolute noise level.

Section 772.13--Analysis of Noise Abatement

    Section 772.9(a) of NPRM has been moved to sec. 772.13(a) based on 
comments received. Three State highway agencies recommended wording 
changes to this section. The final rule uses ``abate'' rather than 
``mitigate'' to clarify that the focus of the regulation when dealing 
with impacts is in on abatement of impacts rather than mitigation of 
impacts. The FHWA added for clarification ``when traffic noise impacts 
are identified, noise abatement shall be considered and evaluated for 
feasibility and reasonableness.''
    No comments were received on section 772.13(b), which in the NPRM 
was section 772.11(a) but the FHWA has revised it to stress that 
primary consideration is given to exterior areas where frequent human 
use occurs. Five State highway agencies expressed concerns with section 
772.11(b) of the NPRM which states ``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 for 
determining noise impacts,'' may result in additional interior analysis 
requirements. The FHWA agrees and has eliminated this section in the 
final rule.
    Three States and one private consultant expressed support for 
including sec. 772.12(c)(1) in the rule. In sec. 772.13(c)(2), a 
private consultant commented on including a new provision on the proper 
use of absorptive treatment on noise barriers. As a result, the FHWA 
added sec. 772.13(c)(2), which states, ``If a highway agency chooses to 
add absorptive treatments to a noise barrier as a functional 
enhancement, the highway agency shall adopt a standard practice for 
using absorptive treatment that is consistent and uniformly applied 
statewide.'' It is FHWA position that if a highway agency wants to use 
absorptive treatments on noise barriers, that they develop a standard 
practice

[[Page 39828]]

listing what situations the highway agency will consider absorptive 
treatments.
    In sec. 772.13(d)(1), seven State highway agencies, one national 
organization, six private consultants, and one private individual 
commented on this section. Comments were primarily about application of 
the ``majority'' requirement to the entire project rather than to each 
neighborhood or increasing the substantial reduction criterion to a 
higher threshold. It is FHWA's position that highway agencies should 
make noise abatement decisions on a neighborhood basis when determining 
achievement of a substantial reduction. Considering all noise abatement 
measures in a project could penalize some neighborhoods where noise 
abatement is clearly effective because it is not possible to provide an 
effective design for a different neighborhood. Similarly, considering 
all noise abatement measures in the project jointly may result in 
construction of noise abatement that is not feasible at some locations 
because of highly effective abatement at other locations within the 
project. The FHWA does not advocate, or support for funding, 
construction of ineffective noise abatement measures.
    A private consultant commented that the 5 dB(A) threshold for 
acoustic feasibility is too small. As such, the final rule clarifies 
that 5 dB(A) is the minimum requirement for a feasible barrier. The 
final rule also incorporates a new reasonableness criterion that each 
highway agency must establish a design goal of 7-10 dB(A). Further 
explanation of reasonableness design goal can be found in the 
discussion of 772.13(d)(2)(iii). Changes to this section in the final 
rule provide greater flexibility to States to identify a targeted 
number of impacted receivers necessary for a noise abatement measure to 
meet feasibility requirements. The FHWA has added the following, ``The 
highway agency shall define, and receive FHWA approval for, the number 
of receptors that must achieve this reduction for the noise abatement 
measure to be feasible and explain the basis for this determination.''
    A State highway agency proposed averaging feasibility over the 
entire project. It is FHWA's position that averaging feasibility across 
the project to obtain a majority is a flawed approach to evaluate 
acoustic feasibility as it may result in construction of barriers that 
are not acoustically feasible. To take the example to the extreme, it 
is possible that one neighborhood could have 100 percent acoustic 
feasibility while a second has 0 percent acoustic feasibility and the 
State highway agency would build no barriers because there was no 
majority of receptors that achieved a 5 dB(A) reduction.
    In sec. 772.13(d)(1)(ii), three State highway agencies and a 
private consultant requested additional clarification on what ``safe'' 
means. A private consultant recommended listing the non-acoustical 
feasibility factors to consider. Additional clarification will be 
provided in the guidance document. However, the final rule includes the 
factors to consider for feasibility. The following sentence was added 
``Factors to consider are safety, barrier height, topography, drainage, 
utilities, and maintenance of the abatement measure, maintenance access 
to adjacent properties, and access to adjacent properties (i.e. 
arterial widening projects).''
    In sec. 772.13(d)(2), one State highway agency commented that FHWA 
should establish the reasonable cost of abatement for all States. The 
FHWA disagrees with this comment. The final rule requires States to 
develop cost reasonableness criteria based on historical construction 
cost as published in the NPRM. This is necessary to accommodate the 
spectrum of costs for various States and the various approaches States 
take to quantify construction costs. For example, some States only 
consider the cost of post, panels, and foundations when estimating the 
construction cost of a noise barrier, while others may include other 
factors such as design, maintenance of traffic, clearing and grubbing, 
etc. A State highway agency and a private consultant recommended 
placing cost as the primary cost reasonableness criterion. The final 
rule has three reasonableness criteria State highway agencies must 
consider: cost effectiveness, desires of the public, and design goal. A 
State may determine the abatement measure is not reasonable if it does 
not meet any of the three criteria. A county highway agency expressed 
concern that only the State would determine the reasonableness factors 
in the State noise policy and recommended a broader definition of 
reasonableness. The rule intentionally provides a narrow selection of 
reasonableness factors to ensure uniform and consistent application of 
the rule nationwide. Similarly, each State highway agency noise policy 
will list reasonableness factors considered by the State on all 
projects within the State regardless of jurisdiction to ensure 
statewide uniform and consistent application of the noise policy. State 
highway agencies may not tailor reasonableness factors to suit a 
particular jurisdiction or project.
    Nineteen State highway agencies, one national organization, seven 
private consultants, and one private individual were concerned about 
various provisions of sec. 772.13(d)(2)(i). The concerns centered on 
two issues: (1) the requirement to obtain responses from a majority of 
benefited receptors, and (2) the limitation of surveying property 
owners rather than residents. A State highway agency expressed concerns 
about Executive Order 12898 compliance. The FHWA recognizes that the 
requirement to obtain a majority is overly proscriptive. Highway 
agencies should devise public involvement programs that satisfy their 
State's needs. States may institute schemes to give additional weight 
to the views of impacted residents, but must consider the views of 
benefited residents. The final rule requires solicitation of the views 
of residents and property owners. One State highway agency and one 
private consultant indicated concern with the provision that, ``The 
highway agency is not required to consider the viewpoints of other 
entities to determine reasonableness, unless explicitly authorized by 
the benefited property owner.'' It is FHWA's position that this 
provision prevents entities other than benefiting residents from 
vetoing noise abatement on public right-of-way. Another State highway 
agency expressed that its current practice is to count a lack of 
response from a residence to a survey as a no vote for the barrier. Two 
State highway agencies requested clarifying language for the meaning of 
``desires'' or substituting the word ``views.'' It is FHWA's position 
that the failure to respond to a survey may demonstrate lack interest 
in noise abatement, particularly when there is a low response rate from 
the community, but only explicit ``no'' votes should be considered as 
``no'' votes. States may institute schemes to give additional weight to 
the views of impacted residents, but must consider the views of 
benefited residents. The final rule incorporates the phrase ``point of 
view'' in place of ``desire.'' This is to eliminate confusion over the 
meaning of ``views,'' which in the past version of the rule, may have 
been confused with what people could see rather than their opinion. To 
provide a more uniform and consistent application nationwide, the 
following was added to this provision ``The highway agency shall 
solicit the viewpoints form all of the benefited receptors and obtain 
enough responses to document a decision on either desiring or not 
desiring the noise

[[Page 39829]]

abatement measure. The highway agency shall define, and receive FHWA 
approval for, the number of receptors that are needed to constitute a 
decision and explain the basis for this determination.''
    In sec. 772.13(d)(2)(ii), a State highway agency and a private 
consultant expressed concern that the proposed rule appeared to change 
cost as a reasonableness factor from cost effectiveness, as 
historically applied, to cost of the measure. It is FHWA's position 
that this was an unintentional change in the language of the proposed 
rule. The final rule clarifies that State highway agencies must 
consider the cost effectiveness of the abatement measure rather than 
considering the overall cost of the abatement measure in terms of the 
project cost. ``The maximum square footage of abatement/benefited 
receptor,'' was added to this provision as a way to determine a 
baseline cost reasonableness value.
    Seven State highway agencies and three private consultants 
commented on the proposed change in sec. 772.13(d)(2)(ii) on how States 
determine cost reasonableness. All generally agreed with the new 
provision, but expressed that the provision should provide flexibility 
to develop cost reasonableness criteria outside the traditional scheme 
of cost per benefited receptor. One State expressed concern about what 
factors to include in the cost estimate, and a consultant indicated 
that States with little or no experience in building noise barriers 
could have difficulty establishing cost reasonableness criteria due to 
limited experience. Another State expressed concern about how the 
reevaluation of construction costs could affect projects caught in the 
process. It is FHWA's position that the final rule provides flexibility 
for State highway agencies to use alternate cost reasonableness schemes 
based on construction cost. The State highway agency and the FHWA 
should coordinate consideration of factors to include in the 
construction cost estimate and apply the same values to all projects. 
The cost estimate is based on averages, which include projects that may 
cost more or less than the average. The FHWA recognizes that some 
States have less experience than others with noise abatement 
construction. The FHWA provides additional information in the noise 
guidance. The reevaluation should focus on the construction costs with 
resulting changes in the cost reasonableness threshold. For example, if 
construction costs increase by 10 percent between evaluations, the cost 
reasonableness threshold should increase by a like amount. This way, a 
location determined cost reasonable at one time, would not fail to meet 
the cost reasonableness criteria later. This is similar to the approach 
recommended below regarding geographic differences.
    In sec. 772.13(d)(2)(ii), two private consultants expressed concern 
about the provision to allow for geographical differences for cost 
reasonableness within a State. One suggested removing the provision 
entirely because it could be difficult to implement and monitor. The 
other wanted to ensure that wording of the final rule would ensure that 
identical neighborhoods in a State would have the same opportunity for 
noise abatement despite geographical differences in construction cost. 
It is the FHWA's position that the final rule retains this subsection 
as an option provision as proposed in the NPRM. The language in the 
final rule ensures that geographical cost differences will not affect a 
neighborhood's opportunity to receive noise abatement. State highway 
agencies implementing this provision will ensure that the cost 
reasonableness criteria/construction cost ratio is the same statewide. 
For example, the unit cost in City A is $12.50/sq. ft. and the cost per 
benefiting residence is $25,000. City B is much more expensive with a 
unit cost of $25/sq. ft. Therefore, the cost per benefiting residence 
in City B is $50,000.
    Based on comments received from four State highway agencies, two 
private consultants, and a private citizen on obtaining a substantial 
noise reduction, the FHWA is incorporating noise reduction design goals 
as the new sec. 772.13(d)(2)(iii). The FHWA is defining ``Noise 
Reduction Design Goal'' to remove the disconnect that occurs with a 5 
dBA substantial decrease criterion and substantial increase criteria's 
5-15 dBA range. This provision states, ``[n]oise Reduction design goals 
for highway traffic noise abatement measures. When noise abatement 
measure(s) are being considered, a highway agency shall achieve a noise 
reduction design goal. The highway agency shall define the design goal 
of at least 7 dB(A) but not more than 10 dB(A), and define the value of 
benefited receptors that must achieve this design goal. The highway 
agency shall define the design goal of at least 7 dB(A) but not more 
than 10 dB(A). The highway agency shall define, and receive FHWA 
approval for, the number of benefited receptors that must achieve this 
design goal and explain the basis for this determination.'' Defining 
the number of benefited receptors that must achieve this design goal 
assures that a too balanced approach is taken when defining a design 
goal.
    In sections 772.13(d)(2)(vi) and (v), five State highway agencies 
and two private consultants commented on the optional reasonableness 
factors and the statement ``No single reasonableness factor should be 
used as the sole basis for determining reasonableness.'' One State 
recommended removal of the optional abatement measures and that States 
should define these criteria in their own policies. Another State also 
requested inclusion of factors related to local zoning compliance in 
the final rule. The final rule clarifies that the provision about 
single reasonableness factors only applies to the optional factors. 
Inclusion of the optional reasonableness factors is based on example 
reasonableness factors in the 1995 guidance. The rule provides 
flexibility for States to choose additional reasonableness factors that 
work best for them. States are not required to incorporate the optional 
reasonableness factors. The final rule does not explicitly address 
local zoning. The final rule provides flexibility to address this under 
the optional factor of date of development. The FHWA has no control 
over zoning practices of local governments. As a result of these 
comments the FHWA added sec. 772.13(d)(2)(iv) to state, ``[t]he 
reasonableness factors listed in Sec.  772.13(d)(5)(i), (ii) and (iii), 
must collectively be achieved in order for a noise abatement measure to 
be deemed reasonable. Failure to achieve Sec.  772.13(d)(5)(i), (ii) or 
(iii), will result in the noise abatement measure being deemed not 
reasonable'' and modified sec. 772.13(d)(2)(v) to indicated that in 
addition to the required factors listed in sec. 772.13(d)(2)(i), (ii) 
and (iii), a highway agency may use the factors within this provision. 
A sentence was added to clarify that no single optional reasonableness 
factor could be used to determine reasonableness. In sec. 772.13(e), a 
national organization, six State highway agencies, and a private 
consultant requested clarification on substantial increase and the 
benefited receiver thresholds. The final rule clarifies that benefited 
receptors must obtain a reduction at or above 5 dB(A), but not exceed 
the highway agency's reasonableness design goal. This approach provides 
flexibility to establish different reasonableness criteria for 
receptors that are impacted and benefiting, versus receptors that are 
not impacted and benefiting.
    Thirteen State highway agencies and four private consultants 
commented on the inclusion of the noise barrier inventory in the 
regulation at sec.

[[Page 39830]]

772.13(f). The commenters questioned whether this fulfills the current 
FHWA practice of collecting this information triennially and requested 
that FHWA specify or clarify the items State highway agencies must 
report. Two of the States speculated that Federal funding should pay 
for this effort since it is in the Federal Participation Section. One 
State sought clarification on whether they would have to report 
historical data in the format required in the regulation. It is FHWA's 
position that this new provision in the regulation does codify FHWA's 
noise barrier inventory that State highway agencies have voluntarily 
completed every 3 years since the 1990's. The final rule will state all 
required parameters and clarifies that noise reduction is the average 
insertion loss/reduction from the installed abatement measure. There is 
no intention to require reporting of previously reported data. The next 
inventory collection will start with abatement measures constructed in 
2008, 2009, and 2010. The information collected for this inventory will 
be the same as previous inventories since this time period occurred 
before the publication of this final rule and before the implementation 
of this final rule. The inventory beginning with abatement measures 
constructed in 2011 and thereafter will be collected in accordance with 
this final rule. The following is been added to this provision, ``The 
inventory shall include the following parameters: Type of abatement; 
cost (overall cost, unit cost per/sq. ft.); average height; length; 
area; location (State, county, city, route); year of construction; 
average insertion loss/noise reduction as reported by the model in the 
noise analysis; NAC category(s) protected; material(s) used (precast 
concrete, berm, block, cast in place concrete, brick, metal, wood, 
fiberglass, combination, plastic (transparent, opaque, other); features 
(absorptive, reflective, surface texture); foundation (ground mounted, 
on structure); project type (Type I, Type II, and optional project 
types such as State funded, county funded, tollway/turnpike funded, 
other, unknown).''
    There were no specific comments on actual text of sec. 772.13(g), 
but based on the comments received on various parts of this regulation 
regarding the disconnect between the environmental clearance and the 
final design noise analysis and documentation, the FHWA has included 
sec. 772.13(g)(3), which states, ``[d]ocumentation of highway traffic 
noise impacts: The environmental document shall identify locations 
where noise impacts are predicted to occur, where noise abatement is 
feasible and reasonable and locations with impacts that have no 
feasible or reasonable noise abatement alternative. For environmental 
clearance, this analysis shall be completed to the extent that design 
information on the alterative(s) under study in the environmental 
document is available at the time the environmental clearance document 
is completed. A statement of likelihood shall be included in the 
environmental document since feasibility and reasonableness 
determinations may change due to changes in project design after 
approval of the environmental document. The statement of likelihood 
shall include the preliminary location and physical description of 
noise abatement measures determined feasible and reasonable in the 
preliminary analysis. The statement of likelihood shall also indicate 
that final recommendations on the construction of an abatement 
measure(s) is determined during the completion of the project's final 
design and the public involvement processes.''
    In sec. 772.13(h), one State highway agency and one private 
consultant recommended a change from ``planned, designed and 
programmed'' to ``permitted.'' The final rule incorporates this change. 
One State highway agency wanted ``in accordance with the Highway Agency 
approved noise Policy'' added to the regulation. Because the FHWA 
requires all States to have an approved noise policy, the FHWA feels 
this change would be unnecessary.
    In sec. 772.13(i), eight State highway agencies and two private 
consultants expressed general support for this new provision on design 
build projects in the regulation, but expressed concern that changes to 
the project during construction may result in implementation of 
unneeded environmental commitments, and commented on the relationship 
between the final and preliminary noise abatement design. The FHWA 
understands the concerns expressed in the comments; however, the FHWA 
is concerned that absent a commitment to provide abatement determined 
reasonable and feasible in the environmental document, and based on the 
acoustic design developed in the noise analysis, there may be cases 
where value engineering efforts or other cost savings measures may 
result in changes to the abatement design that reduce the effectiveness 
of the noise abatement measures. States are also encouraged to consider 
developing performance based specifications within their noise policies 
that apply to design build project to accommodate the project 
flexibility inherent in the design build process and ensure constructed 
noise abatement is effective.
    Section 772.13(j) was proposed as sec. 772.9(d) in the NPRM. This 
provision was moved to the analysis of noise abatement since it deals 
with paying for noise abatement. Ten State highway agencies, two 
private consultants, and one private individual commented on this 
section largely supporting the provision and in some cases, seeking 
minor clarification. In one case, a State highway agency commented that 
this provision could force States to provide abatement that is not 
feasible or reasonable. Another commented that this provision could 
unfairly skew noise abatement to those with greater funds, and a 
private individual wanted clarification on the timing of the funding. 
One State also wanted clarification on the entities that count as third 
parties. Some of the comments make it clear that the wording in the 
NPRM was not clear. The intent is for all noise abatement measures to 
stand on their own without contributing additional funds. The final 
rule states, ``Third party funding is not allowed on a Federal or 
Federal-aid Type I or Type II project if the noise abatement measure 
would require the additional funding from the third party to be 
considered feasible and/or reasonable. Third party funding is 
acceptable on a Federal or Federal-aid highway Type I or Type II 
project, to make functional enhancements, such as absorptive treatment 
and access doors or aesthetic enhancements to a noise abatement measure 
already determined feasible and reasonable.'' The inclusion of 
functional enhancements in third party funding covers items that the 
third party may want in the noise barrier, but are not essential. 
Listing components such as absorptive treatment and functional 
enhancements differentiates between what a community may want in a 
noise barrier and what is necessary for an effective noise barrier. 
States should develop policies that include consideration for 
aesthetics, absorptive treatments, functional enhancements such as 
access doors, fire safety features, etc. Communities desiring 
functional enhancements or aesthetic treatment beyond that provided for 
in the State noise policy could contribute toward those enhancements. 
Third parties are any entity other than the State highway agency and 
DOT operating administrations.
    Section 772.13(k) was proposed as provision 772.9(d) in the NPRM. 
This provision was moved to the analysis of noise abatement since it 
deals with cost averaging noise abatement. This

[[Page 39831]]

provision was moved to the analysis of noise abatement since it deals 
with paying for noise abatement. The final rule incorporates the 
concept of cost averaging across the project with some limitations as 
presented in a comment from a private consultant. This section now 
states, ``on a Type I or a Type II project, a highway agency has the 
option to cost average noise abatement among benefited receptors within 
common noise environments, if no single common noise environment 
exceeds two times the highway agency's cost reasonableness criteria and 
collectively all common noise environments being averaged do not exceed 
the highway agency's cost reasonableness criteria.''

Section 772.15--Federal Participation

    In sec. 772.15(b), a State highway agency remarked that this 
section was always confusing and offered clarifying language. The FHWA 
agrees and revised this provision to largely include the language as 
presented in section 339(b) of the National Highway System Designation 
Act of 1995. As a result, sec. 772.15(b)(1) states, ``No funds made 
available out of the Highway Trust Fund may be used to construct Type 
II noise barriers, as defined by this regulation, if such barriers were 
not part of a project approved by the FHWA before the November 28, 
1995.'' November 28, 1995, is the date that the National Highway System 
Designation Act went into effect. A private consultant expressed that 
this section limits Type II projects to those that were ``proposed 
where land development or substantial construction predated the 
existence of any highway.'' The definition for substantial construction 
is ``the granting of a building permit prior to right-of-way 
acquisition or construction approval for the highway.'' The wording and 
meaning of definition and this provision differ and need to be 
reconciled. The FHWA agrees and the final rule addresses this by 
removing ``any'' and largely stating the language as presented in the 
National Highway System Designation Act of 1995. As a result, sec. 
772.15(b)(2) states ``Federal funds are available for Type II noise 
barriers along lands that were developed or were under substantial 
construction before approval of the acquisition of the rights-of-ways 
for, or construction of, the existing highway.''
    In sec. 772.15(b)(3), two State highway agencies questioned the 
restriction on Type II funding eliminating locations previously 
determined not feasible or reasonable for a Type I project. One of 
these agencies questioned whether this is still the case after a re-
evaluation of an environmental document. It is FHWA's position that if 
a Type I location is not cost-reasonable based on the construction of 
homes at the time of that project, then that location is not cost-
reasonable later for a Type II project. Highway agencies typically 
divide the overall cost of a noise abatement measure by the number of 
benefiting residences to determine a cost per benefiting residence. An 
abatement measure is cost reasonable if the cost per residence does not 
exceed the State's criteria. The only way the neighborhood becomes cost 
reasonable is if the number of residences increases. The new residences 
would not predate the facility and cannot count in the cost-
reasonableness calculation. The only way to consider the commenter's 
approach is if the highway agency increased the allowable cost per 
benefited residence relative to the construction cost. This potentially 
exposes the highway agency to going back to look at previous decisions 
on other Type I and Type II projects to see if the highway agency 
inappropriately excluded locations from receiving noise abatement. This 
situation would not necessarily include Type I projects that involve a 
re-evaluation of an existing environmental document, but those 
circumstances would be scarce. Typically, a location determined not 
reasonable in an environmental document that is later determined 
reasonable in a re-evaluation results from construction of additional 
residences that result in a lower average cost per benefited residence 
and result in abatement not cost reasonable under the earlier document 
achieving the cost-reasonableness threshold. In this case, the highway 
agency would offer noise abatement to the neighborhood as part of the 
Type I project, eliminating the need to consider the location for a 
Type II project. The FHWA made no changes to this provision.
    In sec. 772.15(c), one State highway agency sought clarification on 
some of the available noise abatement measures, specifically regarding 
the need to meet the feasibility and reasonableness criteria and 
regarding the purchase of land. It is FHWA's position that any proposed 
noise abatement measure must achieve the feasibility and reasonableness 
requirements established in the highway agency's noise policy. The 
section on acquisition of real property provides highway agencies with 
the authority to acquire right-of-way for the purpose of noise barrier 
construction. The statement regarding unimproved property is there to 
highlight that highway agencies cannot use this provision to purchase a 
residence just so the State can tear it down and construct a noise 
barrier for the second row of houses. Three highway agencies and a 
university recommended including quieter pavements as noise abatement, 
with one noting a large body of research completed by the State to 
support this approach. It is FHWA's position that there are still too 
many unknowns regarding pavement to consider its use as a noise 
abatement measure. These issues include acoustic longevity and 
construction variability. The FHWA has provisions for highway agencies 
to enter into a Quiet Pavement Pilot Program or to perform Quiet 
Pavement Research. The FHWA acknowledges the valuable research 
performed by various highway agencies; however, the regulation must be 
applicable nationwide and not just in one State. No changes were made 
to this provision.
    In sec. 772.15(c)(1), six State highway agencies and three private 
consultants expressed support for FHWA's position clarifying that 
vegetation is not an appropriate noise abatement measure, but 
recommended removal of references to funding for aesthetic purposes. 
The FHWA has removed reference to funding for landscaping from the 
regulation. One State highway agency and one private consultant 
indicated concerns with the approach to make five of the noise 
abatement alternatives optional and only require consideration of noise 
barriers because this approach contradicts the long-standing practice 
to avoid, minimize, and then mitigate. It is the FHWA's position that 
the language in the final rule allows States to consider all noise 
abatement measures listed in the regulation while requiring only 
consideration of noise barriers. This approach provides highway 
agencies with the flexibility they need to accomplish the recommended 
approach if the highway agency chooses to do so.
    A private consultant recommended adding a new section to 772.15(c) 
regarding absorptive cladding applied to an existing reflective surface 
as a noise abatement measure. Because the final rule does not preclude 
States from considering this approach as a noise abatement measure, no 
changes were made to this provision.
    In sec. 772.15(c)(4), two State highway agencies and one private 
consultant commented on buffer zones. One highway agency requested 
further clarification in the updated FHWA noise guidance. Another 
highway agency requested limitation to planned, designed, and 
programmed land use and

[[Page 39832]]

a private consultant wanted the addition of ``to move noise-sensitive 
receptors farther from the source'' added to the subsection. The FHWA 
addresses buffer zones in the guidance document. Regarding the comment 
on planned, designed and programmed land use, the purpose of the buffer 
zone for noise abatement could also be to stop potential alignment 
shifts toward existing noise sensitive land uses outside the buffer 
zone. The intent of the buffer zone is to provide separation between 
potentially developable land and highways. Regarding the added 
language, this may imply that FHWA may actually move residences away 
from an existing highway to a new location to purchase the property as 
a buffer zone. Since this is not the intent of the regulation, no 
changes were made to this provision.
    In sec. 772.15(c)(5), two State highway agencies and one private 
consultant expressed support for this provision regarding noise 
insulation and recommended incorporating any additional expenses 
accrued by the property owner after project completion. The FHWA agrees 
and the final rule incorporates this idea by referring to additional 
expenses as post-installation maintenance and operational costs. Also, 
to clarify what land uses are eligible for noise insulation, this 
provision now states, ``noise insulation or Activity Category D land 
use facilities listed in table 1.''
    Eight State highway agencies and three private consultants 
expressed concerns about the provision in the NPRM regarding severe 
noise impact criteria in the regulation. Based on these comments, the 
FHWA has removed this provision on severe noise impacts from the final 
rule. It is FHWA's position that the regulation currently requires a 
highway agency to define ``substantial increase,'' which recognizes all 
potential impacts that could result from the proposed project. Adding 
another layer of impact with the title of ``severe'' is problematic to 
the noise analysis and will create even more confusion to the public. 
Severe noise impacts could cause inconsistencies in the application of 
the noise analysis process, since it would require establishing another 
feasibility and cost reasonableness factor. As stated throughout this 
final rule, application of this regulation needs to be applied 
consistently and uniformly statewide. Also, ``severe'' noise impacts 
could be confusing to the public, since they typically feel that they 
are all severely impacted regardless of the noise level or increase in 
noise levels.

Section 772.17--Information for Local Officials

    In sec. 772.17, 13 State highway agencies and 4 private consultants 
commented about the requirements in section 772.1 (section 772.15 in 
the NPRM) regarding information for local officials. Some comments were 
about the numbering of the section, which has been corrected in the 
final rule, and others were about the apparent redundancy in two of the 
subsections. There were also concerns about the extent of a statewide 
outreach program and some confusion about whether outreach to local 
officials is a new requirement. There was also opposition to the 
requirement to implement a statewide outreach program prior to 
considering date of development as a reasonableness criterion. It is 
FHWA's position that highway agencies may use information in the FHWA 
publication ``The Audible Landscape.'' The FHWA is considering updating 
this document to incorporate additional planning strategies. The final 
rule also clarifies the minimum information provided to local 
officials, which is the distance from the highway to the impact 
criteria for each exterior land use in Table 1 of this regulation. The 
requirement to inform local officials about future noise impacts on 
undeveloped lands has been part of this regulation since its inception. 
Unfortunately, few highway agencies properly fulfill this requirement. 
It is likely that many municipalities have never had a Federal project 
that provided the opportunity for the highway agency to inform them 
about noise compatible planning practices. The FHWA recognizes that 
State governments often have little control over local planning; 
however, FHWA has also promoted noise compatible planning strategies 
for more than 30 years with little active involvement by States on the 
issue. It is incumbent on State highway agencies, therefore, to 
demonstrate that they have educated local officials on noise issues if 
date of development may preclude some locations from receiving noise 
abatement. The FHWA noise guidance provides additional clarification on 
statewide outreach programs. For clarification, the FHWA modified sec. 
772.17(a) to include reference to Type I projects and section 
772.17(a)(2) to state, ``[a]t a minimum, identify the distance to the 
exterior noise abatement criteria in Table 1. The best estimation of 
the future design year noise levels at various distances from the edge 
of the nearest travel lane * * *''
    In sec. 772.17(b), a private individual expressed that the rule 
should expand the date of development to allow State highway agencies 
to give additional weight to older residences. It is FHWA's position 
that highway agencies with statewide noise compatible planning outreach 
programs may consider date of development in their decisions to provide 
abatement. The regulation currently authorizes highway agencies to fund 
Type II programs on a voluntary basis to provide abatement for 
locations that predate adjacent highways in the absence of a Type I 
project. For clarification, the FHWA modified this provision to state, 
``If a highway agency chooses to participate in a Type II noise program 
or to use the date of development as one of the factors in determining 
the reasonableness of a Type I noise abatement measure, the highway 
agency shall have a statewide outreach program * * * ''

Section 772.19--Construction Noise

    In sec. 772.19, five State highway agencies, one national 
organization, and one private consultant commented that FHWA should 
provide additional regulatory guidance to address construction noise 
including a regulatory reference to the Roadway Construction Noise 
Model. It is FHWA's position that there is sufficient information 
regarding construction noise available in the construction noise 
handbook. The model will remain an option for use by States to predict 
construction noise impacts for projects. As such, no changes were made 
to this provision.

Table 1 to Part 772--Noise Abatement Criteria

    Eight State highway agencies, a national organization and two 
private consultants provided comments on Table 1. Some of the same 
entities also provided comments in other sections of the regulation 
related to Table 1. The comments generally centered on the opposition 
to include trails, trail crossings, and cemeteries; recommended 
inclusion of additional land use categories; recommended elimination of 
some Category C land uses; or recommended reorganization of the table 
to better differentiate between land use categories. The FHWA disagrees 
with removal of trails and trail crossing and cemeteries from Table 1. 
These are recreational and noise sensitive areas eligible for 
consideration under previous FHWA guidance. The FHWA disagrees with the 
elimination of Category C land uses. Historical data based on highway 
agencies not including Category C locations in their noise analyses or 
their public involvement may paint an inaccurate

[[Page 39833]]

portrait of commercial property owner interest in noise abatement since 
many highway agencies failed to include commercial land uses in noise 
analyses or involve them in the public involvement process. The FHWA 
agrees Table 1 needs to better differentiate business land uses that 
require analysis. The final rule includes a reorganization of Table 1 
to help clarify this issue and adds day care, television studios, radio 
studios, and recording studios as noise sensitive land uses. This 
reorganization includes the following Activity Categories:
    Activity Category A, this activity category still provides the 
exterior activity criteria for ``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.'' No changes were made to 
this activity category.
    Activity Category B, this activity category now only includes the 
exterior activity criteria for residential properties. All other land 
uses that were associated with this activity category in the past have 
been reorganized into other activity categories.
    Activity Category C, this activity category is now the exterior 
activity criteria for the following land uses: ``active sport areas, 
amphitheaters, auditoriums, campgrounds, cemeteries, day care centers, 
hospitals, libraries, medical facilities, parks, picnic areas, places 
of worship, playgrounds, public meeting rooms, public or non-profit 
institutional structures, radio studios, recording studios, recreation 
areas, Section 4(f) sites, schools, television studios, trails, and 
trail crossings.'' The exterior activity criteria for Activity Category 
C are the same as the exterior activity criteria for Activity Category 
B. The reason why the land uses associated with these activity 
categories are in separate categories is that the land used in Activity 
Category C includes a variety of land use facilities that require each 
highway agency to adopt a standard uniform and consistent practice in 
assessing their impacts and abatement measures.
    Activity Category D, this activity category is now the interior 
activity criteria for the following land uses: ``auditoriums, day care 
centers, hospitals, libraries, medical facilities, places of worship, 
public meeting rooms, public or non-profit institutional structures, 
radio studios, recording studios, schools, and television studios.'' 
The activity description for Activity Category D is similar to the 
activity description for Activity Category C. The difference between 
the Activity Category C and D is the exterior verses interior criteria.
    Activity Category E, this activity category is now the exterior 
activity criteria for the following land uses: ``hotels, motels, 
offices, restaurants/bars, and other developed lands, properties or 
activities not included in A-D or F.'' These land use facilities are 
less sensitive to highway traffic noise, and therefore have a higher 
activity criteria.
    Activity Category F, this activity category has no activity 
criteria associated for the following land uses: ``agriculture, 
airports, bus yards, emergency services, industrial, logging, 
maintenance facilities, manufacturing, mining, rail yards, retail 
facilities, shipyards, utilities (water resources, water treatment, 
electrical), and warehousing.'' These land use facilities are not 
sensitive to highway traffic noise and/or do not have exterior areas of 
frequent human use and therefore no activity criteria is appropriate to 
apply.
    Activity Category G, this activity category has no activity 
criteria associated for undeveloped lands that are not permitted. 
Undeveloped land is not sensitive to highway traffic noise and does not 
have exterior areas of frequent human use.

Rulemaking Analyses and Notices

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

    The FHWA has determined that this final rule is not a significant 
regulatory action within the meaning of Executive Order 12866 and is 
not significant within the meaning of the U.S. Department of 
Transportation regulatory policies and procedures.
    The final rule 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. 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 
final rule on small entities and anticipates that this action would not 
have a significant economic impact on a substantial number of small 
entities. The amendments address 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 
final rule would not have a significant economic impact on a 
substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This final rule 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 final rule would not 
result in the expenditure by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $141.3 million or more in 
any one year (2 U.S.C. 1532). 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 final rule 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 final rule 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.

National Environmental Policy Act

    The FHWA has analyzed this final rule 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 updates the specific 
reference to acceptable highway traffic noise prediction methodology 
and removes unneeded references to a

[[Page 39834]]

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. The FHWA determined 
that this final rule would affect a currently approved information 
collection for OMB Control Number 2125-0622, titled ``Noise Barrier 
Inventory Request.'' The 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 final rule under Executive Order 13175, 
dated November 6, 2000, and believes that it would not have substantial 
direct effects on one or more Indian tribes; would not impose 
substantial direct compliance costs on Indian tribal governments; and 
would not preempt tribal law. This 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 final rule under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution or Use. We have determined that this final rule 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 final rule under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights. The FHWA does not anticipate that this final rule 
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 final rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. The FHWA certifies that this final rule 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, Incorporation by reference, Noise control.

    Issued on: June 21, 2010.
Victor M. Mendez,
Administrator.

0
In consideration of the foregoing, the FHWA revises part 772 of title 
23, Code of Federal Regulations, to read 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 Traffic noise prediction.
772.11 Analysis of traffic noise impacts.
772.13 Analysis of noise abatement.
772.15 Federal participation.
772.17 Information for local officials.
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's health, welfare and livability, 
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.

    Benefited Receptor. The recipient of an abatement measure that 
receives a noise reduction at or above the minimum threshold of 5 
dB(A), but not to exceed the highway agency's reasonableness design 
goal.
    Common Noise Environment. A group of receptors within the same 
Activity Category in Table 1 that are exposed to similar noise sources 
and levels; traffic volumes, traffic mix, and speed; and topographic 
features. Generally, common noise environments occur between two 
secondary noise sources, such as interchanges, intersections, cross-
roads.
    Date of Public Knowledge. The date of approval of the Categorical 
Exclusion (CE), the Finding of No Significant Impact (FONSI), or the 
Record of Decision (ROD), as defined in 23 CFR part 771.
    Design Year. The future year used to estimate the probable traffic 
volume for which a highway is designed.
    Existing Noise Levels. The worst noise hour resulting from the 
combination of natural and mechanical sources and human activity 
usually present in a particular area.
    Feasibility. The combination of acoustical and engineering factors 
considered in the evaluation of a noise abatement measure.
    Impacted Receptor. The recipient that has a traffic noise impact.
    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.
    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.
    Multifamily Dwelling. A residential structure containing more than 
one residence. Each residence in a multifamily dwelling shall be 
counted as one receptor when determining impacted and benefited 
receptors.

[[Page 39835]]

    Noise Barrier. A physical obstruction that is constructed between 
the highway noise source and the noise sensitive receptor(s) that 
lowers the noise level, including stand alone noise walls, noise berms 
(earth or other material), and combination berm/wall systems.
    Noise Reduction Design Goal. The optimum desired dB(A) noise 
reduction determined from calculating the difference between future 
build noise levels with abatement, to future build noise levels without 
abatement. The noise reduction design goal shall be at least 7 dB(A), 
but not more than 10 dB(A).
    Permitted. A definite commitment to develop land with an approved 
specific design of land use activities as evidenced by the issuance of 
a building permit.
    Property Owner. An individual or group of individuals that holds a 
title, deed, or other legal documentation of ownership of a property or 
a residence.
    Reasonableness. The combination of social, economic, and 
environmental factors considered in the evaluation of a noise abatement 
measure.
    Receptor. A discrete or representative location of a noise 
sensitive area(s), for any of the land uses listed in Table 1.
    Residence. A dwelling unit. Either a single family residence or 
each dwelling unit in a multifamily dwelling.
    Statement of Likelihood. A statement provided in the environmental 
clearance document based on the feasibility and reasonableness analysis 
completed at the time the environmental document is being approved.
    Substantial Construction. The granting of a building permit, prior 
to right-of-way acquisition or construction approval for the highway.
    Substantial noise increase. One of two types of highway traffic 
noise impacts. For a Type I project, an increase in noise levels of 5 
to 15 dB(A) in the design year over the existing noise level.
    Traffic Noise Impacts. Design year build condition noise levels 
that approach or exceed the NAC listed in Table 1 for the future build 
condition; or design year build condition noise levels that create a 
substantial noise increase over existing noise levels.
    Type I Project. (1) The construction of a highway on new location; 
or,
    (2) The physical alteration of an existing highway where there is 
either:
    (i) Substantial Horizontal Alteration. A project that halves the 
distance between the traffic noise source and the closest receptor 
between the existing condition to the future build condition; or,
    (ii) Substantial Vertical Alteration. A project that removes 
shielding therefore exposing the line-of-sight between the receptor and 
the traffic noise source. This is done by either altering the vertical 
alignment of the highway or by altering the topography between the 
highway traffic noise source and the receptor; or,
    (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, bus lane, or truck climbing lane; or,
    (4) The addition of an auxiliary lane, except for when the 
auxiliary lane is a turn lane; or,
    (5) The addition or relocation of interchange lanes or ramps added 
to a quadrant to complete an existing partial interchange; or,
    (6) Restriping existing pavement for the purpose of adding a 
through-traffic lane or an auxiliary lane; or,
    (7) The addition of a new or substantial alteration of a weigh 
station, rest stop, ride-share lot or toll plaza.
    (8) If a project is determined to be a Type I project under this 
definition then the entire project area as defined in the environmental 
document is a Type I project.
    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 funding, the highway agency must develop and implement 
a Type II program in accordance with section 772.7(e).
    Type III Project. A Federal or Federal-aid highway project that 
does not meet the classifications of a Type I or Type II project. Type 
III projects do not require a noise analysis.


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) In order to obtain FHWA approval, the highway agency shall 
develop noise policies in conformance with this regulation and shall 
apply these policies 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.
    (d) The development and implementation of Type II projects are not 
mandatory requirements of section 109(i) of title 23, United States 
Code.
    (e) 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. The highway agency shall re-analyze the priority system on a 
regular interval, not to exceed 5 years.
    (f) For a Type III project, a highway agency is not required to 
complete a noise analysis or consider abatement measures.


Sec.  772.9  Traffic noise prediction.

    (a) Any analysis required by this subpart must use the FHWA Traffic 
Noise Model (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) Average pavement type shall be used in the FHWA TNM for future 
noise level prediction unless a highway agency substantiates the use of 
a different pavement type for approval by the FHWA.
    (c) Noise contour lines may be used for project alternative 
screening or for land use planning to comply with Sec.  772.17 of this 
part, 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.

[[Page 39836]]

Sec.  772.11  Analysis of traffic noise impacts.

    (a) The highway agency shall determine and analyze expected traffic 
noise impacts.
    (1) For projects on new alignments, determine traffic noise impacts 
by field measurements.
    (2) For projects on existing alignments, predict existing and 
design year traffic noise impacts.
    (b) In determining traffic noise impacts, a highway agency shall 
give primary consideration to exterior areas where frequent human use 
occurs.
    (c) 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 the 
exterior impact criteria for 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 the 
exterior impact criteria for single-family and multifamily residences.
    (iii) Activity Category C. This activity category includes the 
exterior impact criteria for a variety of land use facilities. Each 
highway agency shall adopt a standard practice for analyzing these land 
use facilities that is consistent and uniformly applied statewide.
    (iv) Activity Category D. This activity category includes the 
interior impact criteria for certain land use facilities listed in 
Activity Category C that may have interior uses. A highway agency shall 
conduct an indoor analysis after a determination is made that exterior 
abatement measures will not be feasible and reasonable. An indoor 
analysis shall only be done after exhausting all outdoor analysis 
options. 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, the highway agency shall use Activity 
Category D as the basis of determining noise impacts. Each highway 
agency shall adopt a standard practice for analyzing these land use 
facilities that is consistent and uniformly applied statewide.
    (v) Activity Category E. This activity category includes the 
exterior impact criteria for developed lands that are less sensitive to 
highway noise. Each highway agency shall adopt a standard practice for 
analyzing these land use facilities that is consistent and uniformly 
applied statewide.
    (vi) Activity Category F. This activity category includes developed 
lands that are not sensitive to highway traffic noise. There is no 
impact criteria for the land use facilities in this activity category 
and no analysis of noise impacts is required.
    (vii) Activity Category G. This activity includes undeveloped 
lands.
    (A) A highway agency shall determine if undeveloped land is 
permitted for development. The milestone and its associated date for 
acknowledging when undeveloped land is considered permitted shall be 
the date of issuance of a building permit by the local jurisdiction or 
by the appropriate governing entity.
    (B) If undeveloped land is determined to be perrmitted, then the 
highway agency shall assign the land to the appropriate Activity 
Category and analyze it in the same manner as developed lands in that 
Activity Category.
    (C) If undeveloped land is not permitted for development by the 
date of public knowledge, the highway agency shall determine noise 
levels in accordance with 772.17(a) 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 permitted by the date of public 
knowledge.
    (d) The analysis of traffic noise impacts shall include:
    (1) Identification of existing activities, developed lands, and 
undeveloped lands, which may be affected by noise from the highway;
    (2) For projects on new or existing alignments, validate predicted 
noise level through comparison between measured and predicted levels;
    (3) Measurement of noise levels. Use an ANSI Type I or Type II 
integrating sound level meter;
    (4) Identification of project limits to determine all traffic noise 
impacts for the design year for the build alternative. For Type II 
projects, traffic noise impacts shall be determined from current year 
conditions;
    (e) Highway agencies shall establish an approach level to be used 
when determining a traffic noise impact. The approach level shall be at 
least 1 dB(A) less than the Noise Abatement Criteria for Activity 
Categories A to E listed in Table 1 to part 772;
    (f) Highway agencies shall define substantial noise increase 
between 5 dB(A) to 15 dB(A) over existing noise levels. The substantial 
noise increase criterion is independent of the absolute noise level.
    (g) A highway agency proposing to use Federal-aid highway funds for 
a Type II project shall perform a noise analysis in accordance with 
Sec.  772.11 of this part in order to provide information needed to 
make the determination required by Sec.  772.13(a) of this part.


Sec.  772.13  Analysis of noise abatement.

    (a) When traffic noise impacts are identified, noise abatement 
shall be considered and evaluated for feasibility and reasonableness. 
The highway agency shall determine and analyze alternative noise 
abatement measures to abate identified impacts by giving weight to the 
benefits and costs of abatement and the overall social, economic, and 
environmental effects by using feasible and reasonable noise abatement 
measures for decision-making.
    (b) In abating traffic noise impacts, a highway agency shall give 
primary consideration to exterior areas where frequent human use 
occurs.
    (c) If a noise impact is identified, a highway agency shall 
consider abatement measures. The abatement measures listed in Sec.  
772.15(c) of this part are eligible for Federal funding.
    (1) At a minimum, the highway agency shall consider noise abatement 
in the form of a noise barrier.
    (2) If a highway agency chooses to use absorptive treatments as a 
functional enhancement, the highway agency shall adopt a standard 
practice for using absorptive treatment that is consistent and 
uniformly applied statewide.
    (d) 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.
    (1) Feasibility:
    (i) Achievement of at least a 5 dB(A) highway traffic noise 
reduction at impacted receptors. The highway agency shall define, and 
receive FHWA approval for, the number of receptors that must achieve 
this reduction for the noise abatement measure to be acoustically 
feasible and explain the basis for this determination; and
    (ii) Determination that it is possible to design and construct the 
noise abatement measure. Factors to consider are safety, barrier 
height, topography, drainage, utilities, and maintenance of

[[Page 39837]]

the abatement measure, maintenance access to adjacent properties, and 
access to adjacent properties (i.e. arterial widening projects).
    (2) Reasonableness:
    (i) Consideration of the viewpoints of the property owners and 
residents of the benefited receptors. The highway agency shall solicit 
the viewpoints of all of the benefited receptors and obtain enough 
responses to document a decision on either desiring or not desiring the 
noise abatement measure. The highway agency shall define, and receive 
FHWA approval for, the number of receptors that are needed to 
constitute a decision and explain the basis for this determination.
    (ii) Cost effectiveness 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, the maximum square footage of abatement/benefited receptor 
and either the cost/benefited receptor or cost/benefited receptor/dB(A) 
reduction. 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, 
however, the highway agancy must use the same cost reasonableness/
construction cost ratio statewide.
    (iii) Noise reduction design goals for highway traffic noise 
abatement measures. When noise abatement measure(s) are being 
considered, a highway agency shall achieve a noise reduction design 
goal. The highway agency shall define, and receive FHWA approval for, 
the design goal of at least 7 dB(A) but not more than 10 dB(A), and 
shall define the number of benefited receptors that must achieve this 
design goal and explain the basis for this determination.
    (iv) The reasonableness factors listed in Sec.  772.13(d)(5)(i), 
(ii) and (iii), must collectively be achieved in order for a noise 
abatement measure to be deemed reasonable. Failure to achieve Sec.  
772.13(d)(5)(i), (ii) or (iii), will result in the noise abatement 
measure being deemed not reasonable.
    (v) In addition to the required reasonableness factors listed in 
Sec.  772.13(d)(5)(i), (ii), and (iii), a highway agency has the option 
to also include the following reasonableness factors: Date of 
development, length of time receivers have been exposed to highway 
traffic noise impacts, exposure to higher absolute highway traffic 
noise levels, changes between existing and future build conditions, 
percentage of mixed zoning development, and use of noise compatible 
planning concepts by the local government. No single optional 
reasonableness factor can be used to determine reasonableness.
    (e) Assessment of Benefited Receptors. Each highway agency shall 
define the threshold for the noise reduction which determines a 
benefited receptor as at or above the 5 dB(A), but not to exceed the 
highway agency's reasonableness design goal.
    (f) Abatement Measure Reporting: Each highway agency shall maintain 
an inventory of all constructed noise abatement measures. The inventory 
shall include the following parameters: type of abatement; cost 
(overall cost, unit cost per/sq. ft.); average height; length; area; 
location (State, county, city, route); year of construction; average 
insertion loss/noise reduction as reported by the model in the noise 
analysis; NAC category(s) protected; material(s) used (precast 
concrete, berm, block, cast in place concrete, brick, metal, wood, 
fiberglass, combination, plastic (transparent, opaque, other); features 
(absorptive, reflective, surface texture); foundation (ground mounted, 
on structure); project type (Type I, Type II, and optional project 
types such as State funded, county funded, tollway/turnpike funded, 
other, unknown). The FHWA will collect this information, in accordance 
with OMB's Information Collection requirements.
    (g) 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.
    (3) Documentation of highway traffic noise abatement: The 
environmental document shall identify locations where noise impacts are 
predicted to occur, where noise abatement is feasible and reasonable, 
and locations with impacts that have no feasible or reasonable noise 
abatement alternative. For environmental clearance, this analysis shall 
be completed to the extent that design information on the alterative(s) 
under study in the environmental document is available at the time the 
environmental clearance document is completed. A statement of 
likelihood shall be included in the environmental document since 
feasibility and reasonableness determinations may change due to changes 
in project design after approval of the environmental document. The 
statement of likelihood shall include the preliminary location and 
physical description of noise abatement measures determined feasible 
and reasonable in the preliminary analysis. The statement of likelihood 
shall also indicate that final recommendations on the construction of 
an abatement measure(s) is determined during the completion of the 
project's final design and the public involvement processes.
    (h) 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 permitted.
    (i) 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 1506.5(c) and 23 CFR 636.109.
    (j) Third party funding is not allowed on a Federal or Federal-aid 
Type I or Type II project if the noise abatement measure would require 
the additional funding from the third party to be considered feasible 
and/or reasonable. Third party funding is acceptable on a Federal or 
Federal-aid highway Type I or Type II project to make functional 
enhancements, such as absorptive treatment and access doors or 
aesthetic enhancements, to a noise abatement measure already determined 
feasible and reasonable.
    (k) On a Type I or Type II projects, a highway agency has the 
option to cost average noise abatement among benefited receptors within 
common noise environments if no single common noise environment exceeds 
two times the highway agency's cost reasonableness criteria and 
collectively all common noise environments being averaged do not exceed 
the highway agency's cost reasonableness criteria.


Sec.  772.15  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

[[Page 39838]]

reasonable pursuant to Sec.  772.13(d) of this chapter.
    (b) For Type II projects. (1) No funds made available out of the 
Highway Trust Fund may be used to construct Type II noise barriers, as 
defined by this regulation, if such noise barriers were not part of a 
project approved by the FHWA before the November 28, 1995.
    (2) Federal funds are available for Type II noise barriers along 
lands that were developed or were under substantial construction before 
approval of the acquisition of the rights-of-ways for, or construction 
of, the existing highway.
    (3) FHWA will not approve noise abatement measures for locations 
where such measures were previously determined not to be feasible and 
reasonable 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.
    (2) Traffic management measures including, but not limited to, 
traffic control devices and signing for prohibition of certain vehicle 
types, time-use restrictions for certain vehicle types, modified speed 
limits, and exclusive lane designations.
    (3) Alteration of horizontal and vertical alignments.
    (4) Acquisition of real property or interests therein 
(predominantly unimproved property) to serve as a buffer zone to 
preempt development which would be adversely impacted by traffic noise. 
This measure may be included in Type I projects only.
    (5) Noise insulation of Activity Category D land use facilities 
listed in Table 1. Post-installation maintenance and operational costs 
for noise insulation are not eligible for Federal-aid funding.


Sec.  772.17  Information for local officials.

    (a) To minimize future traffic noise impacts on currently 
undeveloped lands of Type I projects, a highway agency shall inform 
local officials within whose jurisdiction the highway project is 
located of:
    (1) Noise compatible planning concepts;
    (2) The best estimation of the future design year noise levels at 
various distances from the edge of the nearest travel lane of the 
highway improvement where the future noise levels meet the highway 
agency's definition of ``approach'' for undeveloped lands or properties 
within the project limits. At a minimum, identify the distance to the 
exterior noise abatement criteria in Table 1;
    (3) Non-eligibility for Federal-aid participation for a Type II 
project as described in Sec.  772.15(b).
    (b) If a highway agency chooses to participate in a Type II noise 
program or to use the date of development as one of the factors in 
determining the reasonableness of a Type I noise abatement measure, the 
highway agency shall have a statewide outreach program to inform local 
officials and the public of the items in Sec.  772.17(a)(1) through 
(3).


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.

                                  Table 1 to Part 772--Noise Abatement Criteria
                              [Hourly A-Weighted Sound Level--decibels (dB(A)) \1\]
----------------------------------------------------------------------------------------------------------------
                          Activity      Criteria \2\
  Activity  category       Leq(h)          L10(h)       Evaluation  location         Activity description
----------------------------------------------------------------------------------------------------------------
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 \3\................              67              70  Exterior.............  Residential.
C \3\................              67              70  Exterior.............  Active sport areas, amphitheaters,
                                                                               auditoriums, campgrounds,
                                                                               cemeteries, day care centers,
                                                                               hospitals, libraries, medical
                                                                               facilities, parks, picnic areas,
                                                                               places of worship, playgrounds,
                                                                               public meeting rooms, public or
                                                                               nonprofit institutional
                                                                               structures, radio studios,
                                                                               recording studios, recreation
                                                                               areas, Section 4(f) sites,
                                                                               schools, television studios,
                                                                               trails, and trail crossings.
D....................              52              55  Interior.............  Auditoriums, day care centers,
                                                                               hospitals, libraries, medical
                                                                               facilities, places of worship,
                                                                               public meeting rooms, public or
                                                                               nonprofit institutional
                                                                               structures, radio studios,
                                                                               recording studios, schools, and
                                                                               television studios.
E \3\................              72              75  Exterior.............  Hotels, motels, offices,
                                                                               restaurants/bars, and other
                                                                               developed lands, properties or
                                                                               activities not included in A-D or
                                                                               F.
F....................  ..............  ..............  .....................  Agriculture, airports, bus yards,
                                                                               emergency services, industrial,
                                                                               logging, maintenance facilities,
                                                                               manufacturing, mining, rail
                                                                               yards, retail facilities,
                                                                               shipyards, utilities (water
                                                                               resources, water treatment,
                                                                               electrical), and warehousing.
G....................  ..............  ..............  .....................  Undeveloped lands that are not
                                                                               permitted.
----------------------------------------------------------------------------------------------------------------
\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.
\3\ Includes undeveloped lands permitted for this activity category.


[[Page 39839]]

[FR Doc. 2010-15848 Filed 7-12-10; 8:45 am]
BILLING CODE 4910-22-P