[Federal Register Volume 59, Number 132 (Tuesday, July 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16718]


[[Page Unknown]]

[Federal Register: July 12, 1994]


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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration

23 CFR Part 637

[FHWA Docket No. 94-13]
RIN 2125-AD35

 

Quality Assurance Procedures for Construction

AGENCY: Federal Highway Administration (FHWA), DOT.

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

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SUMMARY: The FHWA is requesting comments on proposed revisions to its 
regulation which establishes general requirements for quality assurance 
procedures for construction on Federal-aid highway projects. The 
proposed revisions will clarify existing policy and procedures and 
provide additional guidance on the use of contractor- supplied test 
results in acceptance plans and qualifications of laboratories and 
testing personnel.

DATES: Comments must be received on or before September 12, 1994.

ADDRESSES: Submit written, signed comments to FHWA Docket No. 94-13, 
Room 4232, HCC-10, Office of the Chief Counsel, Federal Highway 
Administration, 400 Seventh Street, SW., Washington, DC 20590. All 
comments received will be available for examination at the above 
address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday except 
legal Federal holidays. Those desiring notification of receipt of 
comments must include a self-addressed, stamped postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Rafalowski, Office of 
Engineering, HNG-23, 202-366-1571; or Mr. Wilbert Baccus, Office of the 
Chief Counsel, HCC-32, 202-366-0780; Federal Highway Administration, 
400 Seventh Street, SW., Washington, DC 20590. Office hours are 7:45 
a.m. to 4:15 p.m., e.t., Monday through Friday, except legal Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Background

    The current regulations on sampling and testing of materials and 
construction appear in 23 CFR Part 637 (1993), Construction Inspection 
and Approval. These regulations were last revised in January of 1987. 
The regulations were written around the traditional approach of the 
State performing all the sampling and testing. The regulations do not 
address the use of contractor testing. As a result, a number of 
questions arose in those States and Federal Highway Administration 
(FHWA) Federal Lands Highway offices which were using contractor 
testing in their quality control/quality assurance (QC/QA) programs.
    Since the existing regulations do not recognize the use of 
contractor testing results in the acceptance program, which is the 
process of accepting materials and construction, an internal committee 
was established in 1992 to study the ramifications of using contractor-
performed sampling and testing results. The committee released the 
results of its study in a report, ``Limits of Use of Contractor 
Performed Sampling and Testing,'' dated July 1, 1993. (A copy of the 
report is available in the docket for inspection and copying.) One of 
the report's recommendations indicates that contractor sampling and 
testing can be used in acceptance programs provided that adequate 
checks and balances are in place to protect the public investment. The 
revisions that are proposed in this NPRM would implement the 
committee's recommendations.
    The NPRM, if promulgated, would replace the existing acceptance and 
independent assurance sampling and testing programs with a 
comprehensive system of checks and balances. Acceptance of materials 
and construction would not be based solely on any one set of data and 
would specifically require the State to monitor and inspect the 
contractors' quality control program. The State's verification sampling 
and testing would be used to ensure the quality of the product. In 
addition, the system would provide for using results from the 
contractors' quality control sampling and testing program in the 
acceptance program if those results are validated by the State's 
verification sampling and testing system. The verification sampling and 
testing would be performed on independent samples obtained by the State 
to verify the contractors' quality control data. If the results from 
the contractors' quality control program and the State's verification 
sampling and testing program do not agree a dispute resolution system 
will be used to determine payment to the contractor.
    The requirement for an independent assurance (IA) program would 
remain in place. The IA program would use witnessing, split samples, 
proficiency samples and equipment calibration as an independent check 
of the field sampling and testing procedures and equipment to assure 
the testing is being performed properly by both the State and the 
contractor personnel.
    The major changes in the regulation would be as follows:
    1. The use of contractor testing results in the overall acceptance 
program would be allowed, provided certain checks and balances are in 
place.
    2. The traditional type of acceptance program with the State 
performing all of the testing would be allowed.
    3. The IA program could be performed either on a system basis or on 
a project by project basis. In a system approach, all equipment and 
testing personnel would be assessed on a time frequency, regardless of 
the specific project on which the testing occurs. The system approach 
would allow the State to assess testing equipment and testing personnel 
regardless of project location. This approach would ensure that the 
testing on small projects is assessed and would also ensure that all 
testing personnel are reviewed.
    4. If the system approach to the IA program is used, an annual 
report on the IA program would be required instead of a statement in 
the project materials certificate concerning the IA program.
    5. Qualified, designated agents of the State would be permitted to 
perform the IA testing.
    6. All testing personnel and laboratories would be required to be 
qualified using State procedures. It is anticipated this provision will 
have an effective date two years after the publication of the final 
rule.
    7. The State Highway Agency's (SHA) central laboratory would be 
required to become accredited by the American Association of State 
Highway and Transportation Officials (AASHTO) Accreditation Program. It 
is also anticipated this provision will have an effective date two 
years after the publication of the final rule.

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 closing date, 
and interested persons should continue to examine the docket for new 
material.

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

    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of Department of Transportation 
regulatory policies and procedures. The FHWA, at 23 CFR 637, currently 
has regulations covering sampling and testing. The proposed revisions 
would merely update these regulations to accommodate contractor-
performed sampling and testing and reinforce existing policy. 
Therefore, it is anticipated that the economic impact of this 
rulemaking will be minimal and a full regulatory evaluation is not 
required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (U.S.C. 601-612), 
the FHWA has evaluated the effects of this proposal on small entities. 
The FHWA concluded that this action would in fact provide some small 
testing firms with an opportunity to perform more work than was allowed 
by the previous regulations. Although the regulation would have a 
positive impact on these testing firms, the number of firms affected 
would be small and the amount of additional work would be 
insignificant. Therefore, the FHWA hereby certifies that this 
rulemaking would not have a significant economic impact on a 
substantial number of small entities.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that this action would not have sufficient federalism implications to 
warrant the preparation of a federalism assessment.

Executive Order 12372 (Intergovernmental Review)

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

Paperwork Reduction Act

    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act of 1980, 44 
U.S.C. 3501-3520.

National Environmental Policy Act

    This rulemaking does not have any effect on the environment. It 
does not constitute a major action having a significant effect on the 
environment, and therefore does not require the preparation of an 
environmental impact statement pursuant to the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.)

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 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 637

    Grant programs--transportation, Highways and roads, Quality 
assurance, Materials sampling and testing.

    Issued on: June 30, 1994.
Rodney E. Slater,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA proposes to amend title 
23, Code of Federal Regulations, part 637 by revising subpart B to read 
as follows:

Subchapter G--Engineering and Traffic Operations

PART 637--CONSTRUCTION INSPECTION AND APPROVAL

Subpart B--Quality Assurance Procedures for Construction

Sec.
637.201  Purpose.
637.203  Definitions.
637.205  Policy.
637.207  Quality assurance program.
637.209  Laboratory and sampling and testing personnel 
qualifications.

Appendix A to Subpart B--Guide Letter of Certification by SHA Engineer

    Authority: 23 U.S.C. 109, 114, and 315; 49 CFR 1.48(b).


Sec. 637.201  Purpose.

    To prescribe policies, procedures, and guidelines to assure the 
quality of materials and construction in all Federal-aid highway 
projects on the National Highway System.


Sec. 637.203  Definitions.

    Acceptance program. All factors that comprise the SHA's 
determination of the quality of the product as specified in the 
contract requirements. These factors include verification sampling, 
testing and inspection and may include validated results of quality 
control sampling and testing.
    Independent assurance program. Activities that are an unbiased and 
independent evaluation of all the sampling and testing procedures used 
in the acceptance program which are performed outside the SHA's central 
laboratory.
    Proficiency samples. Homogeneous samples that are distributed and 
tested by two or more laboratories. The test results are compared to 
assure that the laboratories are obtaining the same results.
    Qualified laboratories. Laboratories that are accredited through 
appropriate programs as determined by each SHA. As a minimum, the 
qualifications shall be consistent with the equipment calibration and 
verification requirements stipulated in sections 5.4 and 5.8 of AASHTO 
R-18, Establishing and Implementing a Quality System for Construction 
Materials Testing Laboratories.
    Qualified sampling and testing personnel. Personnel who are 
certified through appropriate programs defined by each State Highway 
Agency (SHA).
    Quality assurance. All those planned and systematic actions 
necessary to provide confidence that a product or service will satisfy 
given requirements for quality.
    Quality control. All contractor/vendor operational techniques and 
activities that are performed or conducted to fulfill the contract 
requirements.
    Verification sampling and testing. Sampling and testing performed 
to validate the quality of the product. If quality control sampling and 
testing is used in the acceptance program, verification sampling and 
testing will also be used to validate the quality control sampling and 
testing.


Sec. 637.205  Policy.

    (a) Quality assurance program. Each SHA shall develop a quality 
assurance program which will assure that the materials and workmanship 
incorporated in each Federal-aid highway construction project are in 
reasonably close conformity with the requirements of the approved plans 
and specifications, including approved changes. The program must meet 
the criteria in Sec. 637.207 and be approved by the FHWA.
    (1) Independent assurance program. The results of independent 
assurance (IA) tests are not to be used as a basis for material 
acceptance. Independent samples and tests or other procedures shall be 
performed by qualified sampling and testing personnel who do not have 
direct responsibility for quality control and verification sampling and 
testing.
    (2) Verification sampling and testing. The verification sampling 
and testing are to be performed by the SHA or its designated agent 
excluding the contractor and/or vendor.
    (b) Laboratory accreditation program. Each SHA shall be accredited 
by the AASHTO Accreditation Program or a comparable laboratory 
accreditation program approved by the FHWA.


Sec. 637.207  Quality assurance program.

    (a) Each SHA's quality assurance program shall provide for an 
acceptance program and an independent assurance program consisting of 
the following:
    (1) Acceptance program. Each SHA's acceptance program shall consist 
of the following:
    (i) Frequency guide schedules for verification sampling and testing 
which will give general guidance to personnel responsible for the 
program and allow adaptation to specific project conditions and needs.
    (ii) Identification of the specific location in the construction or 
production operation at which verification sampling and testing is to 
be accomplished.
    (iii) The SHA shall inspect the product or construction or both for 
attributes that are detrimental to the performance of the finished 
product.
    (iv) Quality control sampling and testing results may be used as 
part of the acceptance decision provided that:
    (A) The quality control program is approved and monitored by the 
SHA;
    (B) The sampling and testing has been performed by qualified 
laboratories and qualified sampling and testing personnel;
    (C) The results have been validated by the verification sampling 
and testing. The validation of the quality control sampling and testing 
shall be performed by using standard statistical tests. Both the means 
and variances of the results from the quality control tests and 
verification tests shall be compared to ensure that both sets of data 
are testing the same population. The comparison procedures shall 
provide equivalent or better reliability than those obtained with the 
F-test for variances and the t-test for the means; and
    (D) The quality control sampling and testing is evaluated by an IA 
program.
    (v) If the results from the quality control sampling and testing 
are used in the acceptance program the SHA shall establish a dispute 
resolution system. The dispute resolution system shall address the 
resolution of discrepancies occurring between the verification sampling 
and testing and the quality control sampling and testing. The dispute 
resolution system may be administered entirely within the SHA.
    (2) The IA program shall evaluate the qualified sampling and 
testing personnel and the testing equipment. The program shall cover 
sampling procedures, testing procedures, and testing equipment. The 
program shall be performed by the SHA or its designated agent. Each IA 
program shall include the following:
    (i) A schedule of frequency for IA evaluation. The schedule may be 
established based on either a project basis or a system basis. The 
frequency can be based on either a unit of production or on a unit of 
time.
    (ii) The testing equipment can be evaluated by using frequent 
calibration checks, split samples, or proficiency samples.
    (iii) Split samples or proficiency samples shall be used to 
evaluate testing personnel. A reasonable amount of the evaluations 
shall include observation of the sampling and testing procedures.
    (iv) A prompt comparison and documentation shall be made of test 
results obtained by the tester being evaluated and the IA tester. The 
SHA shall develop guidelines for the comparison of test results.
    (v) If the SHA uses the system approach to the IA program the SHA 
shall provide an annual report to the FHWA summarizing the results of 
the IA program.
    (3) The preparation and submission of a materials certification, 
conforming in substance to Appendix A of this regulation, to the FHWA 
Division Administrator for each construction project which is subject 
to FHWA construction oversight activities.
    (b) [Reserved]


Sec. 637.209  Laboratory and sampling and testing personnel 
qualifications.

    (a) Laboratories. After (2 years after the date of publication of 
the final rule in the Federal Register),
    (1) All contractor, vendor, and SHA testing shall be performed by 
qualified laboratories.
    (2) Each SHA shall have its central laboratory accredited by the 
AASHTO Accreditation Program or a comparable laboratory accreditation 
program approved by the FHWA.
    (3) Any non-SHA designated laboratory which performs IA sampling 
and testing shall be accredited in the testing to be performed by the 
AASHTO Accreditation Program or a comparable laboratory accreditation 
program approved by the FHWA.
    (4) Any laboratory that is used in dispute resolution sampling and 
testing shall be accredited in the testing to be performed by the 
AASHTO Accreditation Program or a comparable laboratory accreditation 
program approved by the FHWA.
    (b) Sampling and testing personnel. After (2 years after the date 
of publication of the final rule in the Federal Register), all sampling 
and testing performed for the contractor/vendor and the SHA shall be 
executed by qualified sampling and testing personnel.
    (c) Conflict of interest. In order to avoid an appearance of a 
conflict of interest, any non-SHA qualified laboratory shall perform 
only one of the following types of testing on the same project: 
verification testing, quality control testing, IA testing, or dispute 
resolution testing.

Appendix A to Subpart B--Guide Letter of Certification by SHA Engineer

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Project No.------------------------------------------------------------

    This is to certify that:
    The results of the tests used in the acceptance program indicate 
that the materials incorporated in the construction work, and the 
construction operations controlled by sampling and testing, were in 
conformity with the approved plans and specifications. (The following 
sentence should be added if the IA testing frequencies are based on 
project quantities. All independent assurance samples and tests compare 
favorably to the samples and tests that are used in the acceptance 
program.)
    Exceptions to the plans and specifications are explained on the 
back hereof (or on attached sheet).
    Director of SHA Laboratory or other appropriate SHA Official.

[FR Doc. 94-16718 Filed 7-11-94; 8:45 am]
BILLING CODE 4910-22-P