[Federal Register Volume 69, Number 161 (Friday, August 20, 2004)]
[Proposed Rules]
[Pages 51620-51623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18850]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 772

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


Procedures for Abatement of Highway Traffic Noise and 
Construction Noise

AGENCY: Federal Highway Administration (FHWA), DOT.

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

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SUMMARY: This document proposes to amend the FHWA regulation that 
specifies the traffic noise prediction method to be used in highway 
traffic noise analyses. This proposed revision would require the use of 
the FHWA Traffic Noise Model (FHWA TNM) or any other model determined 
by the FHWA to be consistent with the methodology of the FHWA TNM. The 
FHWA also proposes to update the specific reference to acceptable 
highway traffic noise prediction methodology and remove references to a 
noise measurement report and vehicle noise emission levels that no 
longer need to be included in the regulation. Finally, the FHWA 
proposes to make four ministerial corrections to the section on Federal 
participation.

DATES: Comments must be received by October 19, 2004.

[[Page 51621]]


ADDRESSES: Mail or hand deliver comments to the U.S. Department of 
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590-0001, or submit electronically at 
http://dmses.dot.gov/submit or fax comments to (202) 493-2251. 
Alternatively, comments may be submitted via the Federal eRulemaking 
Portal at http://www.regulations.gov. All comments must include the 
docket number that appears in the heading of this document. All 
comments received will be available for examination and copying at the 
above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, 
except Federal holidays. Those desiring notification of receipt of 
comments must include a self-addressed, stamped postcard or you may 
print the acknowledgment page that appears after submitting comments 
electronically. Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70, Pages 19477-78) or you may visit 
http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Armstrong, Office of 
Natural and Human Environment, HEPN, (202) 366-2073, or Mr. Robert 
Black, Office of the Chief Counsel, HCC-31, (202) 366-1359, Federal 
Highway Administration, 400 Seventh Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Electronic Access

    You may submit or retrieve comments online through the Document 
Management System (DMS) at: http://dmses.dot.gov/submit. Acceptable 
formats include: MS Word, MS Word for Mac, Rich Text File (RTF), 
American Standard Code for Information Interchange (ASCII)(TXT), 
Portable Document Format (PDF), and WordPerfect. The DMS is available 
24 hours each day, 365 days each year. Electronic submission and 
retrieval help and guidelines are available under the help section of 
the web site.
    An electronic copy of this document may also be downloaded by using 
a computer, modem, and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may also reach the Office of the Federal 
Register's home page at: http://www.archives.gov and the Government 
Printing Office's Web page at: http://www.access.gpo.gov/nara.

Background

    The FHWA noise regulations were developed as a result of the 
Federal-Aid Highway Act of 1970 (Pub. L. 91-605, 84 Stat. 1713) and 
apply to highway construction projects where a State department of 
transportation has requested Federal funding for participation in the 
project. The FHWA noise regulations, found at 23 CFR part 772, require 
the State DOT to determine if there will be traffic noise impacts in 
areas adjacent to federally-aided highways when a project is proposed 
for the construction of a highway on a new location or the 
reconstruction of an existing highway to either significantly change 
the horizontal or vertical alignment or increase the number of through-
traffic lanes.
    Analysts must use a highway traffic noise prediction model to 
calculate future traffic noise levels and determine traffic noise 
impacts. The FHWA developed its first prediction model described in 
``FHWA Highway Traffic Noise Prediction Model'' (Report No. FHWA-RD-77-
108), December 1978.\1\
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    \1\ A printed copy of ``FHWA Highway Traffic Noise Prediction 
Model'' (Report No. FHWA-RD-77-108), December 1978, is available on 
the docket.
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    To incorporate over two decades of improvements in the state-of-
the-art of predicting highway traffic noise, as well as continued 
advancements in computer technology, the FHWA, with assistance from the 
Volpe National Transportation Systems Center in Cambridge, 
Massachusetts, developed a new state-of-the-art highway traffic noise 
prediction model in 1998, ``FHWA Traffic Noise Model,'' Version 1.0 
(FHWA TNM).\2\ This model bases its calculations on totally new 
acoustical prediction algorithms as well as newly measured vehicle 
emission levels for automobiles, medium trucks, heavy trucks, buses and 
motorcycles.
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    \2\ A printed copy of the ``FHWA Traffic Noise Model Technical 
Manual'' (Report No. FHWA-PD-96-010), February 1998, is available on 
the docket.
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    The Volpe Center, using funds from the FHWA and 25 State 
departments of transportation, directed and assisted the development of 
the FHWA TNM to accurately analyze the extremely wide range of 
frequencies found in highway traffic noise. These include frequencies 
that typically range from as low as 63 Hertz (two octaves below Middle 
``C'' on a piano) to as high as 8,000 Hertz (higher than any note on a 
piano and usually inaudible to the human ear). The FHWA TNM also allows 
noise analysts to predict noise for both constant-flow and interrupted-
flow traffic and enables them to accurately predict the results of 
multiple noise barriers, as well as the effects of vegetation and rows 
of buildings along highways.
    The FHWA originally released the FHWA TNM, Version 1.0, on March 
30, 1998. Since then, the FHWA has made improvements that resulted in 
six additional releases--v1.0a, v1.0b, v1.1, v2.0, and v2.1, and v2.5. 
The FHWA released Version 2.5 of the model on April 14, 2004. The model 
has been phased in since its original release and will now replace the 
earlier model distributed in 1978.
    As part of the initial establishment of the FHWA technical 
procedures for the analysis of highway traffic noise, i.e., traffic 
noise measurement and prediction methodologies, the FHWA's noise 
regulation included references to ``Sound Procedures for Measuring 
Highway Noise: Final Report'' \3\ and to vehicle emission levels. This 
was done to aid in everyone's knowledge and understanding of the new 
technology of highway traffic noise prediction. However, since this 
technology has now been well established and documented for more than 
two decades, the FHWA noise regulation no longer needs to include any 
reference to a measurement report or to vehicle emission levels. 
Therefore, the FHWA proposes to remove these references from the 
regulation.
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    \3\ A printed copy of ``Sound Procedures for Measuring Highway 
Noise: Final Report'' (Report No. FHWA-DP-45-1R), August 1981, is 
available on the docket.
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Proposed Changes

    The FHWA proposes to update the specific reference in the 
regulation to acceptable highway traffic noise prediction methodology 
and to remove references to a noise measurement report and vehicle 
noise emission levels. Additionally, the FHWA proposes to revise the 
regulation to make four ministerial corrections.
    In Sec.  772.17(a), we propose to require the use of the FHWA 
Traffic Noise Model (FHWA TNM), which is described in ``FHWA Traffic 
Noise Model'' Report No. FHWA-PD-96-010,\4\ 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. We intend to 
incorporate this report by reference into the

[[Page 51622]]

regulation. We also propose to remove all references to previous 
traffic noise prediction methodology, vehicle noise emission levels, 
and a noise measurement report.
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    \4\ ``FHWA Traffic Noise Model'' (Report No. FHWA-PD-96-010), 
February 1998, is available for inspection and copying at the FHWA 
Headquarters Office, located at 400 Seventh Street, SW., Washington, 
DC 20590, as prescribed at 49 CFR part 7.
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    In Sec.  772.13(c), we propose to remove the words ``except that 
Interstate construction funds may only participate in Type I projects'' 
because Interstate construction funds no longer exist. These funds were 
specifically authorized by the Congress for the Interstate construction 
program and have been fully expended.
    In Sec.  772.13(c)(1), we propose to change ``exclusive land 
designations'' to ``exclusive lane designations'' to correct an earlier 
error where the word ``land'' appeared when it should have been the 
word ``lane.''
    In Sec.  772.13(c)(4), we propose to remove ``Interstate 
construction funds may not participate in landscaping,'' since 
Interstate construction funds no longer exist.
    Finally, in Sec.  772.13(d), the FHWA proposes to change ``Regional 
Federal Highway Administrator'' to ``the FHWA.'' State departments of 
transportation should submit their alternate noise abatement measures 
to the FHWA Division Administrator for approval.

Rulemaking Analyses and Notices

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

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

    The FHWA has determined that this proposed rule would not be a 
significant regulatory action within the meaning of Executive Order 
12866 and would not be significant within the meaning of the U.S. 
Department of Transportation regulatory policies and procedures.
    The proposed amendment 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 will be 
minimal; therefore, a full regulatory evaluation is not required.

Regulatory Flexibility Act

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

Unfunded Mandates Reform Act of 1995

    This NPRM would not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 
109 Stat. 48). The actions proposed in this NPRM would not result in 
the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $120.7 million or more in any 
one year (2 U.S.C. 1532). Further, in compliance with the Unfunded 
Mandates Reform Act of 1995, the FHWA will evaluate any regulatory 
action that might be proposed in subsequent stages of the proceeding to 
assess the affects on State, local, and tribal governments and the 
private sector. Additionally, the definition of ``Federal Mandate'' in 
the Unfunded Mandates Reform Act excludes financial assistance of the 
type in which State, local, or tribal governments have authority to 
adjust their participation in the program in accordance with changes 
made in the program by the Federal government. The Federal-aid highway 
program permits this type of flexibility.

Executive Order 13132 (Federalism)

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

Executive Order 12372 (Intergovernmental Review)

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

National Environmental Policy Act

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

Paperwork Reduction Act

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

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this proposed action under Executive Order 
13175, dated November 6, 2000, and believes that this proposed action 
will not have substantial direct effects on one or more Indian tribes; 
will not impose substantial direct compliance costs on Indian tribal 
governments; and will not preempt tribal law. This proposed rulemaking 
primarily applies to noise prediction on State highway projects and 
would not impose any direct compliance requirements on Indian tribal 
governments and will not have any economic or other impacts on the 
viability of Indian tribes. Therefore, a tribal summary impact 
statement is not required.

Executive Order 13211 (Energy Effects)

    The FHWA has analyzed this proposed action under Executive Order 
13211, Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution or Use. We have determined that this proposed 
action would not be a significant energy action under that order 
because any action contemplated would not be a significant regulatory 
action under Executive Order 12866 and would not be likely to have a 
significant adverse effect on the

[[Page 51623]]

supply, distribution, or use of energy. Therefore, the FHWA certifies 
that a Statement of Energy Effects under Executive Order 13211 is not 
required.

Executive Order 12630 (Taking of Private Property)

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

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

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

Regulation Identification Number

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

List of Subjects in 23 CFR Part 772

    Highways and roads, Noise control.

    Issued on: August 11, 2004.
Mary E. Peters,
Federal Highway Administrator.
    In consideration of the foregoing, the FHWA proposes to amend part 
772 of title 23, Code of Federal Regulations, as follows:

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

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

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

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


Sec.  772.13  Federal participation.

* * * * *
    (c) The noise abatement measures listed below may be incorporated 
in Type I and Type II projects to reduce traffic noise impacts. The 
costs of such measures may be included in Federal-aid participating 
project costs with the Federal share being the same as that for the 
system on which the project is located.
    (1) Traffic management measures (e.g., traffic control devices and 
signing for prohibition of certain vehicle types, time-use restrictions 
for certain vehicle types, modified speed limits, and exclusive lane 
designations).
* * * * *
    (4) Construction of noise barriers (including landscaping for 
aesthetic purposes) whether within or outside the highway right-of-way.
* * * * *
    (d) There may be situations where severe traffic noise impacts 
exist or are expected, and the abatement measures listed above are 
physically infeasible or economically unreasonable. In these instances, 
noise abatement measures other than those listed in paragraph (c) of 
this section may be proposed for Types I and II projects by the highway 
agency and approved by the FHWA on a case-by-case basis when the 
conditions of paragraph (a) of this section have been met.
    3. Revise Sec.  772.17(a) to read as follows:


Sec.  772.17  Traffic noise prediction.

    (a) Any analysis required by this subpart must use the FHWA Traffic 
Noise Model (FHWA TNM), which is described in ``FHWA Traffic Noise 
Model'' Report No. FHWA-PD-96-010,\5\ 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. This publication is 
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51 and is 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. 
It is available for copying and inspection at the Federal Highway 
Administration, 400 Seventh Street, SW., Room 3240, Washington, DC 
20590, as provided in 49 CFR part 7.
* * * * *
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    \5\ ``FHWA Traffic Noise Model'' (Report No. FHWA-PD-96-010), 
February 1998, is available for inspection and copying at the FHWA 
Headquarters Office, located at 400 Seventh Street, SW., Washington, 
DC 20590, as prescribed at 49 CFR part 7.
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[FR Doc. 04-18850 Filed 8-19-04; 8:45 am]
BILLING CODE 4910-22-P