[Federal Register Volume 72, Number 184 (Monday, September 24, 2007)]
[Rules and Regulations]
[Pages 54210-54212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18725]


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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: Final Rule.

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SUMMARY: The FHWA is revising 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 will 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 (NACLA) 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. 
This rule will 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 U.S. Department of Transportation (DOT) in 
cooperation with the States, local officials, and metropolitan 
planning organizations (MPOs).

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DATES: Effective October 24, 2007.

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, 1200 New Jersey Avenue, 
SE., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 
p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    This document, the notice of proposed rulemaking (NPRM), and all of 
the comments received may be viewed online through the Document 
Management System (DMS) at http://dms.dot.gov. The DMS is available 24 
hours each day, 365 days each year. Electronic submission and retrieval 
help and guidelines are available under the help section of the Web 
site.
    An electronic copy of this document may also be downloaded by 
accessing the Office of the Federal Register's home page at http://www.archives.gov or the Government Printing Office's Web page at http://www.gpoaccess.gov/nara.

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.
    The FHWA proposed 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 the 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://www.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 final rule provides a 2-year phase-in period from the date of 
issuance to allow adequate time to prepare documentation and budgeting 
for formal accreditation. Based on the experience of the two accredited 
labs in the U.S., we estimate that adequate preparation for 
accreditation could vary depending on the size of the labs and could 
take 2 to 6 months.

Discussion of Comments Received to the Notice of Proposed Rulemaking 
(NPRM)

    On April 9, 2007, the FHWA published a NPRM in the Federal Register 
at 72 FR 17447 to provide an opportunity for public comment on the 
proposed addition to 23 CFR 637.209. In response to the NPRM, the FHWA 
received comments to the docket from one State Transportation Agency 
(Minnesota) and one private company (Transport Research Laboratory). 
Both comments to the docket expressed support for adopting this final 
rule. The FHWA received no other comments on this rulemaking and 
therefore adopts the regulation as proposed in the NPRM.

Rulemaking Analyses and Notices

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

    The FHWA has determined that this action would not be a significant 
regulatory action within the meaning of Executive Order 12866 and 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 regulation has no effect on those entities. The two 
currently accredited

[[Page 54211]]

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 that 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 provides a 2-year phase-in period from the date of 
issuance to allow adequate time to prepare documentation and budgeting 
for formal accreditation. We believe that 2 years is more than adequate 
time for laboratories to obtain the necessary accreditation. The FHWA 
expects that this rule will not adversely affect, in a material way, 
any sector of the economy. In addition, this rule 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 action on 
small entities, including small governments. The FHWA certifies that 
this action would not have a significant economic impact on a 
substantial number of small entities. There are about ten agencies that 
test roadside hardware for crashworthiness and two of these have 
already been certified under the requirements of this final rule. 
Estimated time and cost for an 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)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, dated August 4, 1999, and 
the FHWA has determined that this 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 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 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 action does not contain a collection of 
information requirement for the purposes of the PRA.

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

    The FHWA has analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This is not an economically significant 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 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 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 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 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.


[[Page 54212]]


    Issued on: August 6, 2007.
J. Richard Capka,
Federal Highway Administrator.

0
In consideration of the foregoing, the FHWA amends title 23, Code of 
Federal Regulations, part 637, as set forth below:

PART 637--CONSTRUCTION INSPECTION AND APPROVAL

0
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).


0
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 September 24, 2009, 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 Cooperation for Laboratory Accreditation (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. E7-18725 Filed 9-21-07; 8:45 am]
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