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AGENCY:
Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).
ACTION:
Notice of proposed rulemaking (NPRM); request for comments.
SUMMARY:
The FHWA proposes to revise the Federal regulations on the Procedures for Abatement of Highway Traffic Noise and Construction Noise. The proposed rule would clarify certain definitions, the applicability of this rulemaking, certain analysis requirements, and the eligibility of funds made available under the Highways title of the United States Code (U.S.C.) to provide noise abatement measures and to improve the analytical procedures. The FHWA also proposes changes and clarifications of factors used to determine the effectiveness of noise abatement measures. In addition, the proposed rule would include exemptions to Type I projects and allow screening analysis that would focus on the projects most likely to cause a traffic noise impact to improve efficiency. The proposed rule would make several changes that are intended to increase the pool of eligible participants in the noise study and mitigation decision processes to ensure everyone receives due consideration for impacts and the possibility of receiving abatement on a given project.
DATES:
Comments must be received on or before December 17, 2024. Late-filed comments will be considered to the extent practicable.
ADDRESSES:
To ensure that you do not duplicate your docket submissions, please submit them by only one of the following means:
- Federal eRulemaking Portal: Go to www.regulations.gov and follow the online instructions for submitting comments.
- Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor Room W12-140, Washington, DC 20590.
- Hand Delivery: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is (202) 366-9329.
- Instructions: You must include the agency name and docket number or the Regulatory Identification Number (RIN) for the rulemaking at the beginning of your comments. All comments received will be posted without change to www.regulations.gov, including any personal information provided.
FOR FURTHER INFORMATION CONTACT:
For technical information: Aileen Varela-Margolles, Office of Natural Environment, (305) 978-7780; for legal information: Lev Gabrilovich, Office of the Chief Counsel, (202) 366-3813, Federal Highway Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. Office hours are from 8 a.m. to 4:30 p.m., ET Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Electronic Access and Filing
II. Executive Summary
III. Background
IV. Summary of Key Proposed Changes
Table: Summary of Key Proposed Changes
V. Section-by-Section Discussion
Section 772.1 Purpose
Section 772.3 Definitions
Section 772.5 Applicability
Type I Projects
Project Exemptions
Type II Projects
Type III Projects
State Noise Policy
Effective Date
Section 772.7 Traffic Noise Prediction
TNM Version
Clarifications
Noise Screening Process
Section 772.9 Analysis of Traffic Noise Impacts
Section 772.11 Analysis of Traffic Noise Abatement
Engineering Effectiveness
Acoustic Effectiveness
Cost Effectiveness
Consideration of Viewpoints
Optional Factors
Date of Public Knowledge
Section 772.13 Construction Noise
Section 772.15 Documentation and Reporting
Section 772.17 Information for Local Officials
Section 772.19 Federal Participation
Table 1 to Part 772—Traffic Noise Impact Criteria
VI. Regulatory Analyses and Notices
I. Electronic Access and Filing
This document and all comments received may be viewed online through the Federal eRulemaking portal at www.regulations.gov using the docket number listed above. Electronic retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded by accessing the Office of the Federal Register's website at: www.federalregister.gov and the U.S. Government Publishing Office's website at: www.GovInfo.gov .
All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the location specified in the ADDRESSES section. Comments received after the comment closing date will be filed in the docket and considered to the extent practicable. In addition to late comments, we will continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material. A final rule may be published at any time after the close of the comment period and after DOT has had the opportunity to review the comments submitted.
II. Executive Summary
The FHWA proposes to update the Federal Procedures for Abatement of Highway Traffic Noise and Construction Noise in 23 CFR part 772 (part 772) to clarify the responsibilities under the “applicability” section of this part to various State department of transportation (State DOT) and non-State DOT recipients of apportioned or discretionary funding, provide additional flexibility for State DOTs, improve consistency in the implementation of part 772, increase options for abatement that is best suited to a particular project and community, and create a more equitable process for considering the affected public's preference when making noise abatement decisions. The proposed rule would make changes to how and when noise impacts are considered, the funding mechanisms available for noise abatement, the methods for consideration of benefitted receptor's desires, the Date of Public Knowledge as currently defined in § 772.5, and recommendations for considering construction noise in ways that are intended to increase the pool of eligible participants in the noise study and mitigation decision processes to promote equitable consideration for impacts and the possibility of receiving abatement on a given project. The proposed changes would allow all recipients to expedite project delivery while maintaining protections for human health and the environment by continuing to provide for analyzing, considering, minimizing, and mitigating noise impacts.
The FHWA proposes to reorganize part 772 to improve its clarity in response to stakeholder feedback on the existing regulation. The proposed changes fall into three categories: (1) those that are intended to better balance the needs of receptors (noise-sensitive lands and buildings) adjacent to the project with the needs of recipients; (2) those that are intended to improve the compliance process and focus work effort on projects that are likely to alter the existing noise environment; and (3) those that will allow for the timely adoption of new technology in noise analyses.
The proposed rule includes several key changes that have the potential to alter how recipients conduct noise analyses and how the public receives consideration for noise abatement. The FHWA is proposing to redefine how projects are categorized, what areas of and around a project must be considered for noise analysis, adding exemptions to Type I projects, and allowing project-level screening. This would allow recipients to focus analysis and mitigation efforts on projects and areas that have, or are likely to have, noise impacts. When projects must undergo noise analyses, FHWA is proposing to update the method for adopting new versions of the Traffic Noise Model. In considering traffic noise impacts, the proposed rule would include changes to the levels that are considered an impact. When impacts are identified and abatement must be considered, FHWA is proposing to improve the process for considering abatement by consolidating requirements; allowing for the use of innovative mitigation measures; allowing for the consideration of non-acoustical benefits of mitigation; seeking comment on third-party funding options; updating how property owners' and residents' viewpoints are solicited, counted, and considered; defaulting to replacing existing mitigation in-kind; and including provisions for reestablishing a Date of Public Knowledge. These proposed changes would increase community opportunities to participate in decisionmaking and potentially to obtain noise mitigation for impacts. The proposed rule also includes some updates to the consideration of construction noise when such noise is present at a single location for a long time. Finally, FHWA is proposing to allow additional flexibility for all effective abatement measures to be eligible for Federal participation. The FHWA requests comments on the proposed changes.
Key Proposed Changes to Part 772
| Topic area | Description of proposed change | Existing regulatory section(s) | Proposed regulatory section(s) |
|---|---|---|---|
| Reorganization | Reorganizing the existing regulation to better match the project development process from beginning to end | All sections, except § 772.17 | All sections, except § 772.17. |
| Applicability and responsibilities | Clarifying what parts of this rulemaking apply only to State DOTs and which parts apply to all recipients receiving FHWA funding and/or approvals for a project | All sections, except § 772.1 | All sections, except § 772.1. |
| Project Types | Better aligning work effort to likely results (e.g., focusing noise analysis on projects likely to have noise impacts) by: • Introducing exempt projects • Introducing screenings to determine likelihood of impacts • Updating what constitutes the analysis area | § 772.5, § 772.7 | § 772.3, § 772.5, § 772.7. |
| Traffic noise prediction | Including legacy periods and grace periods, and providing for use of updated versions of the Traffic Noise Model (TNM) via Federal Register notice | § 772.9 | § 772.7. |
| Consideration of adjacent receptors | Establishing criteria and processes for resetting the Date of Public Knowledge and reanalyzing a project area for new receptors. Establishing a default wherein public viewpoints are weighed equally and are the final decision point regarding State DOT-proposed mitigation measures | § 772.5, § 772.13 | § 772.9, § 772.11. |
| Traffic noise impacts | Updating the criteria for a noise impact to balance research and commonly used State criteria | § 772.5, § 772.11, Table 1—Noise Abatement Criteria | § 772.3, § 772.9, Table 1—Noise Impact Criteria. |
| Analysis of traffic noise abatement | Consolidating the analysis of feasibility and reasonableness of abatement measures, and replacing these terms with effective noise abatement or effectiveness. Establishing a default decision of in-kind replacement of noise mitigation that is impacted by a project. Clarify the process and allow for equitable allocation of resources and benefits | § 772.13 | § 772.11. |
| Consideration of other abatement measures | Updating Federal participation to allow funding noise abatement measures that are effective and consistent with FHWA's national policy for environmental mitigation in 23 CFR 771.105(e) and allow more flexibility in abatement options. Proposing three options for third-party prohibitions, restrictions, or allowance thereof | § 772.13, § 772.15 | § 772.11, § 772.19. |
Derivation Table To Compare Proposed and Existing Part 772
| Proposed section(s) | Existing section(s) |
|---|---|
| § 772.1 Purpose | §§ 772.1 and 772.3. |
| § 772.3 Definitions | § 772.5. |
| § 772.5 Applicability | § 772.7. |
| § 772.7 Traffic Noise Prediction | § 772.9. |
| § 772.9 Analysis of Traffic Noise Impacts | § 772.11. |
| § 772.11 Analysis of Traffic Noise Abatement | § 772.13. |
| § 772.13 Construction Noise | § 772.19. |
| § 772.15 Documentation and Reporting | §§ 772.13, 772.11, and 772.19. |
| § 772.17 Information for Local Officials | § 772.17. |
| § 772.19 Federal Participation | § 772.15. |
Summary of Key Proposed Changes
| Section (as proposed) and topic | Proposed change | Purpose of change |
|---|---|---|
| What we are proposing to change? | What are we proposing to change it to/replace it with? | Why are we proposing to change this? |
| Project area requiring analysis—Noise analysis area § 772.3 Definitions § 772.5 Applicability § 772.9 Analysis of traffic noise impacts | We propose to use the project area where design year traffic may contribute to noise impacts from the project. | To focus analysis and work effort on areas most likely to be affected by the project based on traffic changes and construction work, and to ensure full consideration of community impacts. |
| Type I project definitions and required analyses § 772.5 Applicability § 772.7 Traffic Noise Prediction | These proposed changes would: (1) identify Type I projects that could be exempt from noise analysis because these projects are expected to have minimal or no noise impacts; and (2) allow project screenings to determine whether impacts are likely before a full analysis with field measurements and modeling is undertaken. | To introduce additional flexibility to improve the analytical process by better aligning the analysis effort to the likelihood of potential impacts and successful construction of abatement, while still providing the necessary information to the public regarding project impacts as part of FHWA National Environmental Policy Act (NEPA) process. |
| Definitions of impacts § 772.3 Definitions § 772.9 Analysis of Traffic Noise Impacts § 772.11 Analysis of Traffic Noise Abatement Table 1 Noise Impact Criteria | We propose to change the definitions of substantial changes in noise levels by: changing substantial decrease as contained in the acoustic effectiveness criterion to be at least 5 dB(A) but not more than 10 dB(A); and changing the substantial increase criterion, by capping the maximum allowable increase, beyond which an impact will occur, at 10 dB(A) and maintaining the current floor value of 5 dB(A), below which a noise impact because of a substantial increase does not occur. We also propose to remove the requirement to set an approach level of at least 1 dB(A), and incorporate it into table 1 by reducing the Noise Impact Criteria by 1 dB(A) for all Activity Categories. For all criteria, State DOTs would continue to have the option to define more stringent (lower) values. | To better align the definitions of substantial decrease and substantial increase to be the same range of values which is a more logical approach and will also result in additional communities being considered for mitigation compared to the current rule. To update the impact values in table 1 in order to remove the requirement for State DOTs to select an approach criteria. |
| TNM software updates and releases § 772.7 Traffic Noise Prediction | We propose to provide for usage of legacy data from ongoing projects and grace periods for beginning to use new releases of TNM in noise analyses. | To ensure a smooth transition to future updates of FHWA's TNM and to provide certainty to State DOTs and noise analysis practitioners on when the new model should be used for noise analyses. |
| Date of Public Knowledge § 772.9 Analysis of Traffic Noise Impacts § 772.11 Analysis of Traffic Noise Abatement | We propose to provide circumstances under which the Date of Public Knowledge must be reset. | To ensure that the public obtains full consideration for potential impacts and abatement in cases where project design changes will alter the noise environment from what was previously analyzed in NEPA; and to ensure that the public is considered for impacts and abatement in cases where projects do not proceed in a timely manner after the completion of NEPA. This change consistent with NEPA reevaluation policies. |
| Mitigation Options § 772.9 Analysis of Traffic Noise Impacts § 772.11 Analysis of Traffic Noise Abatement | We propose to allow for any effective mitigation measures, or combination measures, to be eligible for Federal-aid funding provided they meet the requirements established in this rulemaking and in the given State DOT Noise Policy. We propose to include an additional optional effectiveness factor, to allow for noise mitigation that also provides other environmental and social benefits. | To expand options for State DOTs to consider more cost- and acoustically-effective mitigation options such that mitigation is provided more often, is more effective at reducing noise, can enhance the environment, and can do so using the limited available funding. |
| Analysis process § 772.11 Analysis of Traffic Noise Abatement | We propose to combine “feasibility” and “reasonableness” determinations using the term “effectiveness.” We propose to establish that existing noise barriers that are disturbed by a new project can be eligible for Federal-aid funds for in-kind or improved replacement without necessitating additional analyses. | To consolidate and clarify the traffic noise abatement analysis process so that it is easier to understand for the public; and to maintain existing mitigation that benefits a community. |
| Public Involvement § 772.11 Analysis of Traffic Noise Abatement: Consideration of Viewpoints | We propose to consider renters and owners as having equal votes during mitigation decisionmaking; to make mitigation decisions based on a simple majority of returned ballots; and to limit the use of a minimum response rate requirement by State DOTs. | To increase the public's awareness of and influence on final mitigation decisions. |
| Third Party Funding § 772.11 Analysis of Traffic Noise Abatement | We propose three options to consider third party funding. Proposed option three would remove the prohibition on complete funding of noise abatement by a third party while retaining the ban on partial funding. | To ensure equitable allocation of resources and benefits and financial prudence for cost effective abatement measures. |
| Quantitative Analysis of Construction Noise § 772.19 Construction Noise | We propose to include a new section stating that State DOTs should conduct quantitative construction noise analyses in cases where the public has expressed concern about the issue, or where the State DOT believes that construction noise is likely to impact the quality of life of nearby residents. | To ensure the public receives proper consideration for construction noise mitigation measures. |
| Type I project | Proposed exemption to Type I project |
|---|---|
| The addition of a new or substantial alteration of a toll plaza § 772.5(b)(3)(v) | The addition of, or conversion to, an all-electronic toll plaza where vehicles do not stop or accelerate away. § 772.5(c)(1)(i) |
| The addition of an auxiliary lane, whether added by construction or restriping § 772.5(b)(3)(ii) and (iv) | An auxiliary lane when it is a turn lane or less than 2,500 feet in length and thus does not function as a through lane. § 772.5(c)(1)(ii) |
| The addition of a through traffic lane(s), whether added by construction or restriping § 772.5(b)(3)(i) and (iv) | The addition of a through traffic lane when: • Design speed limit is 35 mph or less; and • Vehicular restrictions would cause the volume of traffic using these lanes to be much lower than the main lanes, including autos-only, bus-only, and no trucks allowed. § 772.5(c)(iii) |
| Substantial Vertical Alteration § 772.5(b)(2)(ii) | A substantial vertical alteration when such alteration results in a newly blocked line of sight between the area and the receptor, such as moving a roadway into a cut. § 772.5(c)(1)(iv) |
Table 1 to Part 772—Traffic Noise Impact Criteria
[Hourly A-weighted sound level decibels (dB(A))]