Procedures for Abatement of Highway Traffic Noise and Construction Noise, 39820-39839 [2010-15848]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[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: https://www.archives.gov and the Government 
Printing Office's Web page at: https://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 https://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: https://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