[Federal Register Volume 72, Number 67 (Monday, April 9, 2007)]
[Proposed Rules]
[Pages 17447-17449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-6533]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 637

[FHWA Docket No. FHWA-2006-26501]
RIN 2125-AF21


Crash Test Laboratory Requirements for FHWA Roadside Safety 
Hardware Acceptance

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: The FHWA proposes to revise its regulation that establishes 
the general requirements for quality assurance procedures for 
construction on all Federal-aid highway projects on the National 
Highway System (NHS).\1\ Specifically, the FHWA proposes to require 
accreditation of laboratories that conduct crash tests on roadside 
hardware by an accrediting body that is recognized by the National 
Cooperation for Laboratory Accreditation (NCLA) or is a signatory to an 
International Laboratory Accreditation Cooperation (ILAC) Mutual 
Recognition Arrangement (MRA), an Asia Pacific Laboratory Accreditation 
Cooperation (APLAC) MRA, or another comparable accreditation body 
approved by FHWA. The objective of this proposed rule is to improve the 
agency's ability to determine that crash test laboratories are 
qualified to conduct and evaluate tests intended to determine the 
crashworthiness of roadside safety features. Laboratory accreditation 
is widely recognized as a reliable indicator of technical competence.
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    \1\ The National Highway System (NHS) includes the Interstate 
Highway System as well as other roads important to the nation's 
economy, defense, and mobility. See 23 U.S.C. 103(b). The NHS was 
developed by the Department of Transportation (DOT) in cooperation 
with the States, local officials, and metropolitan planning 
organizations (MPOs).

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DATES: Comments must be received on or before June 8, 2007.

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

FOR FURTHER INFORMATION CONTACT: Matt Lupes, Office of Safety Design, 
HSSD, 202-366-6994, Nicholas Artimovich, Office of Safety Design, HSSD, 
202-366-1331, or Raymond Cuprill, Office of the Chief Counsel, (202) 
366-0791, Federal Highway Administration, 400 Seventh Street, SW., 
Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 
p.m., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    You may submit or retrieve comments online through the Document 
Management System (DMS) at: http://dms.dot.gov/submit. The DMS is 
available 24 hours each day, 365 days each year. Electronic submission 
and retrieval help and guidelines are available under the help section 
of the Web site. An electronic copy of this document may be downloaded 
from the Federal Register's home page at: http://www.archives.gov and 
the Government Printing Office's database at: http://www.access.gpo.gov/nara.
    Please note that even after the comment closing date, we will 
continue to file relevant information in the Docket as it becomes 
available. Further, some people may submit late comments and we will 
consider all late comments to the extent practicable. Accordingly, we 
recommend that you periodically check the Docket for new material.

Background

    Section 109(c) of title 23, United States Code, as amended by 
section 304 of the National Highway System Designation Act of 1995 
(Pub. L. 104-59; 109 Stat. 188; Nov. 28, 1995), requires the Secretary, 
in cooperation with the State transportation departments, to approve 
design and construction standards on the NHS, regardless of funding 
source. These design standards include not only elements pertaining to 
the roadway itself, but also to any appurtenances installed along the 
roadway, such as traffic barriers (roadside and median barriers, and 
bridge railings), sign and luminaire supports and crash cushions.
    Statement of the Problem. The roadside safety hardware sector has 
evolved since the 1960's and now includes additional crash test 
laboratories that are not sponsored by an academic institution. During 
the same period, the FHWA funding of roadside safety hardware testing 
at crash test laboratories and direct observation of crash test 
laboratories have decreased. There are about 10 laboratories within the 
United States that conduct, or have conducted, the types of vehicle/
hardware tests needed to establish crashworthiness. Additionally, there 
are more manufacturers and increasing types of roadside safety hardware 
devices available. The FHWA recognized that most State DOT personnel 
were not experienced in assessing test laboratory reports to determine 
if the hardware was subjected to all required tests and if all tests 
met the appropriate evaluation criteria. Therefore, as a service to the 
State transportation departments, and to the highway safety industry in 
general, the FHWA began reviewing test reports, upon request, and 
providing written acknowledgements that specific

[[Page 17448]]

appurtenances were crashworthy and thus eligible for use on the NHS. 
These ``FHWA Acceptance Letters'' quickly became essential to the 
manufacturers and widely recognized by the States.
    The FHWA Office of Safety Design reviews such requests for 
acceptance and currently maintains listings of crashworthy barriers, 
bridge railings, transitions to bridge railings, barrier terminals, 
crash cushions, truck mounted attenuators, breakaway luminaire support 
hardware, breakaway sign supports, work zone devices, and other 
hardware. Hardware approved through acceptance letters are posted on 
the FHWA Safety Web site at http://safety.fhwa.dot.gov/report350hardware.
    Similar to the individual State DOTs, the FHWA does not have 
adequate personnel or resources to continuously verify, on-site, the 
capabilities of the established test laboratories to conduct required 
tests, to calibrate recording devices used to collect and analyze data, 
and to determine compliance with evaluation criteria. Should new 
laboratories be established in the future, the FHWA would be similarly 
limited in its ability to assess their competence to set up, run, and 
evaluate full-scale vehicular tests. The objective of this rule would 
be to provide increased confidence in roadside hardware safety by 
ensuring that all crash test laboratories are capable of conducting 
crash tests and analyzing and reporting test results. The FHWA believes 
that appropriate stewardship requires that we establish minimum 
accreditation requirements for these laboratories.

General Discussion of the Proposal

    The FHWA is proposing to amend 23 CFR 637.209 by adding 
637.209(a)(5) that would require all laboratories that perform crash 
testing for acceptance of roadside safety hardware to be accredited by 
an accreditation body that is recognized by NACLA or is a signatory to 
the APLAC MRA, ILAC MRA, or another comparable accreditation body 
approved by FHWA. To FHWA's knowledge, NACLA and laboratory 
accreditation bodies that are members of ILAC and APLAC are the only 
laboratory accreditation bodies that exist. Information on accrediting 
bodies that are signatories to APLAC's MRA and ILAC's MRA, including 
estimated costs and application procedures for laboratory 
accreditation, can be found at their respective Web sites 
http:llwww.aplac.org and http://www.ilac.org; similar information on 
NACLA's accrediting bodies can be found at http://nacla.net. Formal 
accreditation assesses factors such as the technical competency of 
laboratory personnel, the validity of test methods, the calibration and 
maintenance of test equipment, and the quality assurance of calibration 
and test data.
    Laboratory accreditation will be assessed according to the current 
International Standard ISO/IEC 17025:2005, General Requirements for the 
Competence of Testing and Calibration of Laboratories. The ISO/IEC 
17025:2005 standard is divided into management and technical 
requirements that ensure the competence of the laboratory to produce 
valid data and results. Many other countries require organizations and 
testing laboratories to be accredited to the ISO/IEC 17025 standard for 
any test results used for establishing compliance. The FHWA 
acknowledges the ISO/IEC 17025: 2005 standard as the benchmark for 
assessing the competence of the testing and calibration laboratories
    This rulemaking proposes to provide a 2-year phase-in period from 
the date of final rule to allow adequate time to prepare documentation 
and budgeting for formal accreditation. Based on the experience of the 
two accredited labs operating in the U.S., we estimate that adequate 
preparation for accreditation could vary depending on the size of the 
lab and could take 2 to 6 months. We welcome your comments on what 
burdens this proposed accreditation would impose on a laboratory and if 
the proposed 2-year phase-in period is sufficient.

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 using the docket number appearing at the top of this 
document in the docket room at the above address. The FHWA will file 
comments received after the comment closing date and will consider late 
comments to the extent practicable. In addition to late comments, the 
FHWA will also continue to file in the docket relevant information 
becoming available after the comment closing date, and interested 
persons should continue to examine the docket for new material. A final 
rule may be published at any time after the close of the comment 
period.

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

    The FHWA has determined preliminarily that this action would not be 
a significant regulatory action within the meaning of Executive Order 
12866 or would not be significant within the meaning of U.S. Department 
of Transportation regulatory policies and procedures. It is anticipated 
that the economic impact of this rulemaking would be minimal. 
Currently, two of the test laboratories in the U.S. are already 
accredited and this proposed regulation would have no effect on those 
entities. The two currently accredited laboratories, E-Tech Testing 
Services Incorporated in Rocklin, California and Safe Technologies 
Incorporated in Rio Vista, California provided an estimate of direct 
time and costs incurred to receive initial accreditation as 480 to 960 
person-work hours to prepare documentation and $9,000 in direct costs. 
The initial fee of $9,000 included a one-time registration fee of 
$5,000, a 3-day on-site assessment visit costing $3,000, and materials 
and equipment costs of $1,000. It is expected that the amount of person 
work hours and costs associated with document preparation will vary 
depending on the size of the laboratory and the extent to which its 
operating procedures are already formalized. We believe the time and 
cost to gain accreditation is not a burden. Laboratory accreditation 
renewal is required bi-annually and includes an annual review. The two 
laboratories mentioned above cite recurring annual costs of maintaining 
formal accreditation to be 160 person work hours and only $3,000 
annually.
    This rulemaking proposes to provide a 2-year phase-in period from 
the date of final rule to allow adequate time to prepare documentation 
and budgeting for formal accreditation. We believe 2 years is more than 
adequate time for laboratories to obtain the necessary accreditation. 
These proposed changes would not adversely affect, in a material way, 
any sector of the economy. In addition, these changes would not 
interfere with any action taken or planned by another agency and would 
not materially alter the budgetary impact of any entitlements, grants, 
user fees, or loan programs. Consequently, a full regulatory evaluation 
is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), the FHWA has evaluated the effects of this proposed 
action on small entities, including small governments. The FHWA 
certifies that this proposed action would not have a significant 
economic impact on a substantial number of small entities. As noted 
above, there are about ten (10) agencies that test roadside hardware 
for crashworthiness and two of these have already been certified as 
proposed herein. Estimated time and cost for an

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initial certification is 3 days on-site and $ 9,000. Re-certification 
is required bi-annually at an estimated annual cost of $3,000.

Executive Order 13132 (Federalism)

    The FHWA analyzed this proposed amendment in accordance with the 
principles and criteria contained in Executive Order 13132, dated 
August 4, 1999, and the FHWA has determined that this proposed action 
would not have a substantial direct effect or sufficient federalism 
implications on States and local governments that would limit the 
policy making discretion of the States and local governments.

Unfunded Mandates Reform Act

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 
1995; 109 Stat. 48). This proposed rule will not result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $128.1 million or more in any one year (2 
U.S.C. 1532).

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. The FHWA has 
determined that this proposed action does not contain a collection of 
information requirement for the purposes of the PRA.

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

    The FHWA has analyzed this proposed action under Executive Order 
13045, Protection of Children from Environmental Health Risks and 
Safety Risks. This is not an economically significant proposed action 
and does not concern an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This proposed action would not affect a taking of private property 
or otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 13211 (Energy Effects)

    The FHWA has analyzed this proposed action under Executive Order 
13211, Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use. We have determined that this is not a 
significant energy action under this order because it is not a 
significant regulatory action under Executive Order 12866 and is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, a Statement of Energy 
Effects under Executive Order 13211 is not required.

Executive Order 13175 (Tribal Consultation)

    Since none of the existing test laboratories are owned, operated, 
or in any way controlled by Indian tribes, the FHWA believes that it 
will not have any direct effects on one or more Indian tribes; will not 
impose substantial direct compliance costs on Indian tribal 
governments; and will not preempt tribal law. Therefore, a tribal 
summary impact statement is not required.

National Environmental Policy Act

    The agency has analyzed this proposed action for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
has determined that it would not have any effect on the quality of the 
environment.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies. This proposed rule uses voluntary consensus 
standards.

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

    Construction inspection and approval; Highways and roads.

    Issued on: March 30, 2007.
 J. Richard Capka,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA proposes to amend, 
title 23, Code of Federal Regulations, part 637, as set forth below:

PART 637--QUALITY ASSURANCE PROCEDURES FOR CONSTRUCTION

    1. The authority citation for part 637 continues to read as 
follows:

    Authority: Sec. 1307, Pub. L. 105-178, 112 Stat. 107; 23 U.S.C. 
109, 114, and 315; 49 CFR 1.48(b).
    2. In Sec.  637.209, add paragraph (a)(5) to read as follows:


Sec.  637.209  Laboratory and sampling and testing personnel 
qualifications

    (a) * * *
    (5) After [insert date two years after the date of publication of 
the final rule in the Federal Register], laboratories that perform 
crash testing for acceptance of roadside hardware by the FHWA shall be 
accredited by a laboratory accreditation body that is recognized by the 
National Laboratory Accreditation Cooperation (NACLA), is a signatory 
to the Asia Pacific Laboratory Accreditation Cooperation (APLAC) Mutual 
Recognition Arrangement (MRA), is a signatory to the International 
Laboratory Accreditation Cooperation (ILAC) Mutual Recognition 
Arrangement (MRA), or another accreditation body acceptable to FHWA.
* * * * *
 [FR Doc. E7-6533 Filed 4-6-07; 8:45 am]
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