[Federal Register Volume 60, Number 125 (Thursday, June 29, 1995)]
[Rules and Regulations]
[Pages 33712-33719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15932]



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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: Final rule.

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SUMMARY: The FHWA is revising its regulations that establish general 

[[Page 33713]]
requirements for quality assurance procedures for construction on 
Federal-aid highway projects. The rule provides more flexibility than 
the existing regulation. The rule allows the use of contractor test 
results in making the acceptance decision and allows the use of 
consultants in the independent assurance program and verification 
sampling and testing. The regulation requires testers and laboratories 
to be qualified. However, it gives the States the flexibility to 
establish those qualifications. The revisions will clarify existing 
policy and procedures and provide additional guidance on the use of 
contractor-supplied test results in acceptance plans.

EFFECTIVE DATE: July 31, 1995.

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 Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Background

    The current regulations on sampling and testing of materials and 
construction appear in 23 CFR Part 637, Construction Inspection and 
Approval. These regulations were last revised in January 1987. The 
regulations were written using the concept of the State performing all 
the sampling and testing, which had been the traditional approach to 
sampling and testing. The regulations do not address the use of 
contractor testing. As a result, a number of questions arose in those 
States which were using contractor testing in their quality control/
quality assurance (QC/QA) programs.
    The existing regulations do not recognize the use of contractor 
testing results in an acceptance program. An acceptance program is the 
process of determining whether the materials and workmanship are in 
reasonably close conformity with the requirements of the approved plans 
and specifications. In 1992, the FHWA studied the ramifications of 
using contractor-performed sampling and testing results. The results of 
its study are reported in ``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 was that contractor sampling and testing may 
be used in acceptance programs, provided adequate checks and balances 
are in place to protect the public investment. The revisions to part 
637 made in this final rule would implement the committee's 
recommendation.
    This final rule provides more flexibility to the States in 
designing their acceptance programs than currently exists. Acceptance 
of materials and construction will not be based solely on any one set 
of information. Each State's verification sampling and testing will be 
used to ensure the quality of the product. In addition, the rule will 
permit the use of data from the contractors' quality control sampling 
and testing programs in acceptance programs if the results from the 
States' verification sampling and testing programs confirm the quality 
of the material. The verification sampling and testing must be 
performed on independent samples obtained by the State or designated 
agent to verify the quality of the material. If the results of a 
State's verification sampling and testing program do not confirm the 
quality of the product, a dispute resolution system must be used to 
determine payment to the contractor.
    The requirement for an independent assurance (IA) program will 
remain in place. The rule will provide the States more flexibility in 
designing their IA program. The IA program will allow the use of 
witnessing, split samples, proficiency samples, and equipment 
calibration as an independent check of the field sampling and testing 
procedures and equipment to assure that the testing is being performed 
properly by both the State and the contractor personnel.

Comments to the Docket

    A notice of proposed rulemaking (NPRM) was published in the Federal 
Register on July 12, 1994 (59 FR 35493), in which the FHWA proposed to 
revise 23 CFR Part 637, Construction Inspection and Approval. A total 
of 50 commenters responded to the NPRM as follows: 35 State highway 
agencies, 1 local agency, 1 toll authority, 10 construction industry 
associations and contractors, and 3 Subcommittees of the American 
Association of State Highway and Transportation Officials (AASHTO). The 
major comments and the FHWA's response thereto are summarized as 
follows.

Supportive of Change

    Twenty-six commenters expressed their support for the revisions to 
the regulation. Fifteen commenters provided comments without indicating 
support or opposition to the NPRM. The remaining nine commenters were 
generally opposed to the proposed rule.
Use of Contractor Test Results

    Commenters expressed three related concerns over the required 
system of checks and balances employed when contractor test results are 
used in the acceptance decision: (1) Requiring the use of independent 
samples instead of allowing either independent samples or split 
samples; (2) requiring the use of the F-test and the t-test (which are 
standard statistical tests for comparing the variances and means of two 
sets of data) because of the complexity of using the statistical tests; 
and (3) the perceived duplication of effort between the verification 
sampling and testing and the testing required by covering the 
contractor sampling and testing program in the IA program.
    The overall intent of the program is to provide adequate assurance 
that the public is receiving the desired quality in the product 
produced by the contractor. The first level of assurance is provided by 
qualifying laboratories and testing personnel. This assures that the 
equipment and personnel are capable of performing the tests properly. 
The second level of assurance is provided by the IA program. This level 
assures that the testers and equipment remain capable of performing the 
tests properly. The third level of assurance is provided by 
verification sampling and testing. This level assures the quality of 
the product.
    There appears to have been some misunderstanding of the total level 
of effort required. The rule as adopted gives the States wide latitude 
in designing the acceptance program. The system approach to IA assures 
the capabilities of all equipment and testers regardless of the number 
of projects or material quantities involved. A broad interpretation of 
the existing regulations would allow the system approach to IA. 
However, the final rule explicitly allows the system approach to IA. In 
those States that are performing a significant amount of testing on 
split samples and no testing on independent samples, testing on split 
samples would remain as IA sampling and testing; however, some 
verification testing on independent samples would be required to 
confirm the quality of the product. In addition, the verification of 
the quality of the material can be performed on a mix design or grading 
of material from a given source and is not limited to project-specific 
data.
    Eleven commenters expressed concern over requiring the use of 
independent samples for the verification sampling and testing program. 
The 

[[Page 33714]]
commenters recommended that the use of split samples be permitted for 
the verification sampling and testing program. The commenters are 
concerned about the potential problems that may arise with differences 
in testing results caused by sampling errors.
    There are three sources of differences between two test results, 
differences in the material, differences in test procedures and 
differences in sampling procedures. Split samples will only address the 
differences in test procedures and will only provide assurance that the 
contractor is performing the tests properly. In a balanced system it is 
also necessary to assure that sampling of materials is performed 
properly. It is our intent that the verification sampling and testing 
program be used to independently validate the quality of the material. 
Using independent samples will insure that all sources of differences 
are measured. The FHWA recognizes the need to ensure that each 
contractor performs the tests correctly; that is the reason for 
extending laboratory and testing personnel qualification requirements 
and IA program requirements to the contractor if the contractor's test 
results are to be used in the acceptance decision. The FHWA expects the 
testing variability between the contractor and the State to be held to 
a minimum by requiring the contractor's testing program to be covered 
by an IA program and requiring the testing personnel and laboratories 
to be qualified. The FHWA has changed the definition of ``verification 
sampling and testing'' and Sec. 637.207(a)(1)(ii)(B) to clarify the 
fact that the verification sampling and testing program is being used 
to validate the quality of the material.
    Eight commenters objected to requiring the use of the F-test and t-
test for verifying a contractor's test data. The commenters were 
concerned about the complexity of the F-test and t-test which would 
have to be used by field personnel and the lack of flexibility in 
allowing other comparison systems. The commenters requested that the 
regulation be revised to allow other types of comparison systems. The 
FHWA agrees with the concerns and has removed the requirement for a 
specific comparison procedure. Each State will have the latitude to 
develop its own verification system.
    Three commenters--two State Highway Agencies and one local highway 
agency--objected to including contractors' testers in States' IA 
programs. The commenters are concerned over the additional resources 
involved in extending the IA program to contractor testing.
    If a contractor's test results are to be used in the acceptance 
decision, assurance must be provided that the contractor's testers and 
equipment remain capable of performing the tests properly. Some States 
are currently performing split sampling and testing on project sites to 
validate the contractor's test results. This split sampling and testing 
would meet the requirements for an IA program on contractor testing. 
This proposed requirement has been retained in the final rule.

Qualified Sampling and Testing Personnel

    Four commenters specifically supported the concept of certifying 
testing personnel.
    Two commenters wanted to change the term certified personnel to 
qualified personnel. The FHWA agrees with the comments since the goal 
of the FHWA is to have qualified personnel perform the testing. The 
term ``certified'' was deleted from the definition of qualified testing 
personnel.
    Sixteen commenters expressed concern about the cost, specific 
requirements, and/or two-year implementation period for establishing 
qualification programs for testing personnel. To allow adequate time to 
develop qualification programs, we have extended the implementation 
time from two years to five years. If a State chooses to use a 
certification program as its qualification program, the FHWA is 
developing training material that can be modified for State use. The 
FHWA will also assist the States in adapting the material for their 
use.

Independent Assurance Program

    Thirteen commenters objected to the proposal to remove the 
requirement that State highway agency (SHA) personnel perform IA 
testing. The States wanted to continue to perform IA testing as a means 
to maintain expertise in the materials sampling and testing area and 
maintain the credibility of their materials programs. Since materials 
sampling and testing are an essential part of determining the quality 
of the product that is obtained from the use of Federal-aid funds, the 
FHWA has an interest in maintaining the States' expertise and 
credibility. However, in cases where States are using contractor test 
results in acceptance decisions, the FHWA believes it is important that 
the States have the option of using consultants to perform IA testing. 
It is important to note that the final rule does not require a SHA to 
use consultants in the IA program, but simply gives SHAs the option to 
do so. The FHWA has added Sec. 637.205(b) which requires States to 
maintain an adequate, qualified staff with the capability of overseeing 
the entire quality assurance program and specifically requires the 
States to maintain a central laboratory. This requirement is consistent 
with 23 U.S.C. 302 which requires each State to maintain an adequate 
highway department.
    Three commenters requested further clarification on the use of the 
system approach in performing an IA program. The intent of the system 
approach to the IA program is to concentrate on assuring that the 
testing personnel and equipment remain capable of performing the tests 
properly, regardless of the location or number of projects covered by 
the equipment and tester. The system approach will permit an SHA to 
fulfill the requirement for an IA program by implementing a schedule of 
activities to cover equipment operations and tester competence. The 
activities may include calibration checks, split samples, proficiency 
samples, and observations. The schedules and type of activity would be 
based on the test procedure. In the system approach, the frequency of 
IA may be independent of the number of tests performed or the quantity 
of material tested. It is envisioned that the system approach will be 
especially useful in cases where one tester performs testing for more 
than one project during a construction season. The previous requirement 
for IA entailed sampling and testing frequencies based on individual 
project production. In addition, a State may choose to use the 
information developed from the IA program in the qualification programs 
for testers and laboratories. One commenter asked if the NPRM would 
allow a State to use a hybrid approach, which would include some 
frequencies based on project quantities and frequencies based on the 
overall system. This rule as written would allow that approach. It 
should be noted that the rule does not require a State to use this 
approach.
    One commenter wanted the requirements for the IA program to be less 
stringent. The requirements in the final rule for IA have been made 
less prescriptive than the current regulations and give a State more 
latitude in designing its IA system. The existing regulation requires 
State personnel to perform the IA sampling and testing. The final rule 
would allow: (1) The use of accredited consultant laboratories in 
executing an IA program, (2) a system approach instead of a project 
approach, (3) proficiency samples instead of split 

[[Page 33715]]
samples, and (4) equipment calibration to cover the testing equipment.
Laboratory Qualification

    Four commenters supported the proposed requirements for laboratory 
qualifications.
    Eight commenters expressed concerns about the requirements for 
laboratory qualifications. The NPRM proposed to include by reference 
two paragraphs from the ``Standard Recommended Practice for 
Establishing and Implementing a Quality System for Construction Testing 
Laboratories'' (R-18) published by the AASHTO in the ``Standard 
Specifications for Transportation Materials and Methods of Sampling and 
Testing.'' The commenters believed that R-18 was not appropriate for 
field laboratories. It was not the FHWA's intent that the entire R-18 
standard be used for the qualification of field laboratories. Due to 
the confusion caused by specifying only a part of R-18, the rule has 
been revised to specifically list the minimum requirements for field 
laboratories and delete the reference to R-18.
    Eight commenters wanted clarification of the requirements for 
accreditation of the SHA central laboratory. It is the intent of the 
FHWA that the accreditation program must meet the guidelines in ASTM E-
994. In addition to the guidelines in ASTM E-994, we have two 
additional concerns: First, regarding the acceptability of the 
assessors; and second, concerning the scope of the on-site assessment. 
For an accreditation program to be acceptable to the FHWA, the assessor 
must be employees of the accrediting body and not employed by a 
laboratory which may compete for work with the laboratory being 
assessed. This would avoid any potential conflicts of interest. In 
addition, the on-site assessment must include a detailed review of the 
test procedures in which the laboratory is being accredited. The FHWA 
believes that only one laboratory accreditation program currently meets 
the above concerns, and that is the AASHTO Accreditation Program. As we 
understand the operating procedures of other accreditation programs, 
they allow reviewers to be employees of other testing laboratories and 
do not require the laboratory to demonstrate all the tests in which the 
laboratory is being accredited. If other accreditation programs can 
satisfy our concerns, we will approve them. Any inquires or requests 
for approval should be directed to the FHWA's Office of Engineering.
    Six commenters expressed concern about the cost and implementation 
time necessary for accrediting an SHA central laboratory. The 
commenters believe that two years is too short a time in which to 
become accredited. At this time 30 SHAs are accredited by the AASHTO 
Accreditation Program (AAP). The FHWA contacted the AAP to obtain data 
on the average length of time required by the AAP to accredit a SHA 
laboratory after receipt of an application for accreditation. Based on 
the information supplied by AAP, the FHWA believes that two years is an 
adequate lead time for obtaining accreditation. The requirement for 
accreditation replaces the inspections by the National Reference 
Laboratories which are required by Sec. 637.205 of the current 
regulation. The actual cost of accreditation to the SHA is the same as 
the cost of inspection program that it replaces. However, there will be 
some costs associated with developing the quality system for the 
initial accreditation for the SHAs. The rule provides flexibility to 
the SHAs to designate private laboratories to perform independent 
assurance tests and dispute resolution testing. Since the SHAs must 
review the qualifications of designated laboratories, the SHAs need to 
be qualified at the highest level, which is accreditation. Therefore, 
this final rule maintains the laboratory accreditation requirements as 
originally proposed.

Definitions

    Four commenters suggested changes to the definition of quality 
control. The definition of quality control was adapted from the 
definition in ANSI 90 and ISO 9000 which are the industry consensus 
standards for quality assurance. Therefore, the FHWA is retaining the 
definition as proposed.
    Two commenters wanted to delete the word ``accredited'' from the 
definition of ``qualified laboratories''. There appears to be confusion 
over the use of the term ``accreditation'' since the NPRM used the word 
to describe two different levels of qualifications. The FHWA agrees 
with the comment because of the apparent confusion. The word 
``accredited'' has been removed from the definition of ``qualified 
laboratories''.
    Two commenters wanted clarification of the term ``vendor.'' A 
definition of ``vendor'' has been added to insure that it includes 
suppliers of project-produced materials. It was the FHWA's intent that 
the rule cover only project-produced materials and not manufactured 
materials.
    One commenter suggested changes to the definition of ``quality 
assurance''. The definition of ``quality assurance'' was adapted from 
the definitions in the ANSI 90 and ISO 9000 standards which are the 
industry consensus standards for quality assurance. Therefore, the FHWA 
has retained this definition as proposed in the NPRM.
    One commenter suggested requiring random sampling. The FHWA agrees 
with the comment. In order for test data used in the acceptance 
decision to be properly analyzed, samples must be obtained on a random 
basis. Section 637.205(e) has been added to require random sampling.
    One commenter was concerned with the wording of the definition for 
IA, which the commenter interpreted as requiring the IA to be performed 
by a consultant. As stated earlier, it is the FHWA's intent that the 
States have the option to perform IA sampling and testing themselves or 
have a qualified designated agent perform the testing. The definition 
in the final rule has been revised to reflect our intent.

Miscellany

    Eight commenters requested a delay in issuing a final rule. Their 
major concern was over potential conflicts between this final rule and 
AASHTO's effort to develop guide specifications for Quality Assurance. 
The AASHTO effort is related to this rulemaking. However, the ``AASHTO 
Quality Assurance Guide Specification'' and the ``AASHTO Implementation 
Manual for Quality Assurance'' are in the draft stage and are still 
being reviewed. It may be some time before these documents receive full 
endorsement by AASHTO. Since the current regulations do not address the 
practice of using contractor testing in making acceptance decisions, 
the FHWA believes that it is necessary to proceed with the final rule. 
The commenters were also concerned that the SHAs did not have adequate 
time to comment on the regulation. The NPRM provided a 60 day comment 
period. All comments that were received by the FHWA, including the 
eleven received after the closing of the comment period, were 
considered and included in the analysis. In addition, the FHWA received 
comments from 35 of the 52 SHAs. Therefore, the FHWA believes that 
adequate time was provided.
    Five commenters provided comments on the dispute resolution system. 
There were comments on both sides of the issue of whether the dispute 
resolution system should allow third party involvement. Three 
commenters were in favor of keeping the system in the State; two were 
in favor of using third parties. In the NPRM the FHWA proposed to 
permit the SHAs to determine how they wanted to set up the dispute 
resolution system. The FHWA is aware of cases where a dispute 
resolution system has 

[[Page 33716]]
worked well in both cases, so this proposal has been retained in the 
final rule.
    Three commenters requested clarification of the terms 
``acceptance'', ``verification'', and ``assurance''. This rule requires 
an acceptance program which includes the establishment of 
qualifications of testers and laboratories and inspection of 
construction operations and testing performed by the SHA or its 
designated agent. Verification sampling and testing is used to validate 
the quality of the product. Independent assurance is used specifically 
to insure that the testing is performed correctly and that the 
equipment is in calibration.
    Two commenters provided comments on the materials certificate. One 
commenter requested that the wording on the material certificate be 
revised from requiring the materials and operations to be in 
``conformity with the approved plans and specifications'' to 
``reasonably close conformity to the approved plans and 
specification.'' The commenter was concerned about the added work of 
adding the individual material exceptions to the project plans and 
specifications to the materials certificate. The current regulation 
requires the material certificate to list all materials that do not 
meet the specifications. The FHWA reserves the right to review the 
materials certificate to determine if the materials are in conformity 
with the project plans and specifications. Therefore, the FHWA has 
retained the wording as proposed in the NPRM. The other commenter 
wanted to eliminate the requirement for the materials certificate. 
Section 637.201 limits the rule to projects on the NHS. In addition, 
Sec. 637.207(a)(3) further limits the requirement for a materials 
certificate to projects that are subject to FHWA oversight reviews. 
This will eliminate the requirement for a materials certificate for the 
vast majority of projects. Since the cost of materials make up a 
substantial portion of each project and the information supplied by the 
materials certificate indicates the quality of the material, it is 
necessary to have the materials certificate in order to make an 
informed decision on whether to accept those projects for which the 
FHWA has retained construction oversight. Therefore, the FHWA has 
retained the proposed requirement for a materials certificate in this 
final rule.
    One commenter indicated that the cost of implementing the 
regulation was high and a full regulatory review was needed. As noted 
below the FHWA has determined that this action is not a significant 
regulatory action under Executive Order 12366, Regulatory Planning and 
Review, nor significant under DOT Order 2100.5, Policies and Procedures 
for Simplification, Analysis, and Review of Regulations, and has 
concluded that a full regulatory evaluation is not required.
    Costs to the States. Currently all States must have approved 
sampling and testing programs which include an IA program. In addition, 
all States are required to have their central laboratories inspected by 
the National Reference Laboratories. As indicated in the fee schedule 
for the AAP, the actual cost of accreditation itself for the SHAs is 
the same as the current inspection fees. The additional cost to the 
States for becoming accredited is in developing the quality assurance 
manuals which are required by the AAP. The justification for requiring 
accreditation is stated above. Since the vast majority of States have 
qualification requirements for their subsidiary laboratories, there 
would be no additional costs for the States that have these 
requirements. There would be minimal costs to those States that will 
have to develop qualification requirements for laboratories. There 
would be some costs in developing qualifications for testers. One 
aspect of tester qualifications is attendance at training programs. All 
States have some training for their technicians, but some of this 
training may have to be upgraded. However, as stated earlier, the FHWA 
has a training effort that is available to assist the States in setting 
up certification programs. The certification programs could be used in 
the States' establishment of tester qualifications.
    Costs to the public. There would be no additional costs to the 
industry if a State chooses not to incorporate contractor tests into 
the acceptance system. If a State chooses to use contractor tests in 
acceptance decisions, contractors would be required to hire employees 
qualified in the appropriate tests and the State would be required to 
ensure that the contractors maintain a qualified laboratory or hire a 
qualified laboratory to perform the testing. When a State uses 
contractor quality control testing results in the acceptance decision, 
testing performed by the State is reduced. This reduction in testing by 
the State reduces the overhead costs in the State. However, any 
additional cost the contractors incur in performing the testing, 
including costs of obtaining qualified laboratories and testers, will 
be passed onto the State through higher bid prices. The cost savings by 
the State due to the reduction of testing by State personnel would be 
offset by the increase in bid prices charged by the contractors. As a 
result, the FHWA believes that the additional costs of these actions 
would be minimal.
    One commenter was concerned because its Quality Assurance program 
is located in several documents and it did not want to consolidate the 
information into one document. The FHWA does not see the need for all 
the documentation of a State's Quality Assurance program to be in one 
document.
    One commenter interpreted the NPRM to propose a requirement for a 
central laboratory and the commenter opposed such a requirement. The 
NPRM did not expressly propose to require a central laboratory; 
however, the NPRM did propose to require that each State's central 
laboratory be accredited by the AAP or a comparable program approved by 
the FHWA. For the reasons stated above, this final rule now requires a 
central laboratory.
    One commenter was concerned about the effect of these QC/QA 
regulations on small projects. As indicated in the preamble of the 
NPRM, it is not the intent of the FHWA in this regulation to require 
the use of contractor testing in the acceptance decision. In addition, 
the rule expressly covers only projects on the National Highway system 
(NHS); projects not on the NHS can use other SHA procedures to accept 
materials. It is anticipated that the majority of small projects will 
not be on the NHS.
    One commenter was against QC/QA procedures. The rule does not 
require SHAs to use statistical concepts or to use contractor-supplied 
test results in the acceptance decision. However, the rule does 
establish minimum requirements if an SHA chooses to use contractor 
tests results in the acceptance decision.
    One commenter suggested a revision to the portion of Sec. 637.207 
concerning inspection to reflect the positive as well as the negative 
aspects of the quality of the product or construction. The section in 
the NPRM read, ``The SHA shall inspect the product or construction or 
both for attributes that are detrimental to the performance of the 
finished product.'' The FHWA agrees with the comment. Section 
637.207(a)(1)(i)(C) has been revised to reflect both benificial and 
negative aspects of the quality of the finished product.
    One commenter indicated that the regulation was too prescriptive. 
The rule, however, provides more flexibility than the existing 
regulation. The rule allows the use of contractor test results in 
making the acceptance decision and allows the use of consultants in the 
independent assurance program. Neither of these were allowed by the 

[[Page 33717]]
existing regulations. The regulation requires testers and laboratories 
to be qualified. However, it gives the States the flexibility to 
establish those qualifications. In addition, the final rule modified 
Section 637.207 to remove the requirement for a specific comparison 
procedure to validate the quality of the material. The rule clarifies 
existing policy and procedures and provides additional guidance on the 
use of contractor-supplied test results in acceptance plans.
    One commenter questioned the title and purpose of the proposed 
rule, indicating that the rule covers materials and not construction. 
Over 50 percent of the cost of construction is the cost of the 
material. In addition, the rule requires each State to inspect 
construction to insure that the construction procedures do not 
adversely affect the properties of the material. Therefore, the title 
of this rule remains unchanged.

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's 
regulatory policies and procedures. The FHWA, at 23 CFR 637, currently 
has regulations covering sampling and testing. The rule provides the 
States with additional flexibility in comparison to the current 
regulations. States will be allowed to use contractor test results in 
making acceptance decisions and consultants to perform independent 
assurance testing. Other changes update the current 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 (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this action on small 
entities. The FHWA concluded that this action may provide some small 
testing firms with an opportunity to perform more work than was allowed 
by the previous regulations. Although the regulation will have a 
positive impact on these testing firms, the number of firms affected 
will be small and the amount of additional work would be insignificant. 
Therefore, the FHWA hereby certifies that this rulemaking will 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. The rule provides the 
States with additional flexibility over the current regulations. States 
will be allowed to use contractor test results in making acceptance 
decisions and consultants to perform IA testing. Therefore, it has been 
determined that this action does not have sufficient federalism 
implications to warrant the preparation of a separate 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 22, 1995.
Rodney E. Slater,
Federal Highway Administrator
    In consideration of the foregoing, the FHWA is amending title 23, 
Code of Federal Regulations, by revising part 637 to read as follows:

PART 637--CONSTRUCTION INSPECTION AND APPROVAL

Subpart A--[Reserved]

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 State 
Engineer

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

Subpart A--[Reserved]

Subpart B--Quality Assurance Procedures for Construction

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 State highway 
agency's (SHA) determination of the quality of the product as specified 
in the contract requirements. These factors include verification 
sampling, testing, and inspection and may include 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. Test procedures used in the acceptance 
program which are performed in the SHA's central laboratory would not 
be covered by an independent assurance program.

    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 capable as defined by 
appropriate programs established by each SHA. As a minimum, the 
qualification program shall include provisions for checking test 
equipment and the laboratory shall keep records of calibration checks.

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    Qualified sampling and testing personnel. Personnel who are capable 
as defined by appropriate programs established by each 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.
    Random sample. A sample drawn from a lot in which each increment in 
the lot has an equal probability of being chosen.
    Vendor. A supplier of project-produced material that is not the 
contractor.
    Verification sampling and testing. Sampling and testing performed 
to validate the quality of the product.


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 into each Federal-aid highway construction project on the 
NHS are in 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.
    (b) SHA capabilities. The SHA shall maintain an adequate, qualified 
staff to administer its quality assurance program. The State shall also 
maintain a central laboratory. The State's central laboratory shall 
meet the requirements in Sec. 637.209(a)(2).
    (c) Independent assurance program. Independent assurance samples 
and tests or other procedures shall be performed by qualified sampling 
and testing personnel employed by the SHA or its designated agent.
    (d) Verification sampling and testing. The verification sampling 
and testing are to be performed by qualified testing personnel employed 
by the SHA or its designated agent, excluding the contractor and 
vendor.
    (e) Random samples. All samples used for quality control and 
verification sampling and testing shall be random samples.


Sec. 637.207  Quality assurance program.

    (a) Each SHA's quality assurance program shall provide for an 
acceptance program and an independent assurance (IA) program consisting 
of the following:
    (1) Acceptance program.
    (i) Each SHA's acceptance program shall consist of the following:
    (A) 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.
    (B) Identification of the specific location in the construction or 
production operation at which verification sampling and testing is to 
be accomplished.
    (C) Identification of the specific attributes to be inspected which 
reflect the quality of the finished product.
    (ii) Quality control sampling and testing results may be used as 
part of the acceptance decision provided that:
    (A) The sampling and testing has been performed by qualified 
laboratories and qualified sampling and testing personnel.
    (B) The quality of the material has been validated by the 
verification sampling and testing. The verification testing shall be 
performed on samples that are taken independently of the quality 
control samples.
    (C) The quality control sampling and testing is evaluated by an IA 
program.
    (iii) 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. Each IA 
program shall include 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.
    (i) The testing equipment shall be evaluated by using one or more 
of the following: Calibration checks, split samples, or proficiency 
samples.
    (ii) Testing personnel shall be evaluated by observations and split 
samples or proficiency samples.
    (iii) 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 including tolerance limits for the 
comparison of test results.
    (iv) 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 of a materials certification, conforming in 
substance to Appendix A of this subpart, shall be submitted 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.
    (1) After June 29, 2000, all contractor, vendor, and SHA testing 
used in the acceptance decision shall be performed by qualified 
laboratories.
    (2) After June 30, 1997, each SHA shall have its central laboratory 
accredited by the AASHTO Accreditation Program or a comparable 
laboratory accreditation program approved by the FHWA.
    (3) After June 29, 2000, 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) After June 29, 2000, any non-SHA 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 June 29, 2000, all 
sampling and testing data to be used in the acceptance decision or the 
IA program 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 qualified non-SHA 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 State 
Engineer

Date-------------------------------------------------------------------
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 are within tolerance limits of the samples and tests that are 
used in the acceptance program.) 

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    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. 95-15932 Filed 6-28-95; 8:45 am]
BILLING CODE 4910-22-P