[Federal Register Volume 80, Number 219 (Friday, November 13, 2015)]
[Notices]
[Pages 70288-70289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28753]



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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2015-0008]


Manual for Assessing Safety Hardware (MASH) Transition

AGENCY: Federal Highway Administration (FHWA), Department of 
Transportation (DOT).

ACTION: Notice.

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SUMMARY: In issuing Federal-aid eligibility letters for roadside safety 
hardware, FHWA currently makes determinations of continued eligibility 
for modifications to devices tested to the National Cooperative Highway 
Research Program Report 350 (NCHRP 350). In an effort to facilitate the 
implementation of the Manual for Assessing Safety Hardware (MASH), FHWA 
intends to discontinue issuing eligibility letters for requests 
received after December 31, 2015, for modified NCHRP 350-tested devices 
that do not involve full scale crash testing to the MASH. Modifications 
to NCHRP 350-tested devices that have, in the past, been based on 
engineering analysis or finite element modeling will no longer receive 
FHWA eligibility letters. Effective January 1, 2016, all changes to 
NCHRP 350-tested devices will require testing under MASH in order to 
receive a Federal-aid eligibility letter from FHWA.

FOR FURTHER INFORMATION CONTACT: For questions about the program 
discussed herein, contact Mr. Michael Griffith, Director of Office of 
Safety Technologies, FHWA Office of Safety, (202) 366-9469 or via email 
at [email protected]. For legal questions, please contact Ms. 
Jennifer Mayo, Assistant Chief Counsel, FHWA Office of Chief Counsel 
(202) 366-1523, or via email at [email protected], Federal Highway 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    This document, all comments, and the request for comments notice 
may be viewed on line through the Federal eRulemaking portal at: http://www.regulations.gov. The docket identification number is FHWA-2015-
0008. The Web site is available 24 hours each day, 365 days each year. 
Anyone is able to search the electronic form of all comments in 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, or labor union). 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://DocketsInfo.dot.gov.

Request for Comments

    On May 19, 2015, at 80 FR 28761, FHWA published a Request for 
Comments soliciting public input on the impact of FHWA no longer 
issuing Federal-aid eligibility letters after December 31, 2015, for 
modified NCHRP 350-tested devices that do not involve full scale crash 
testing to MASH criteria. The FHWA solicited input because 
modifications to NCHRP 350-tested devices have, in the past, received 
FHWA Federal-aid eligibility letters based on engineering analysis or 
finite element modeling.

Summary of Responses

    The FHWA received a total of 16 responses to the docket. Of these 
responses, 11 were from private industry, 2 from State departments of 
transportation, 2 from private organizations, and 1 anonymous comment. 
Only three of the commenters addressed FHWA's proposal to discontinue 
issuing Federal-aid eligibility letters for modified NCHRP 350-tested 
safety devices that are not tested under the MASH criteria.
    The Georgia Department of Transportation, the Illinois Department 
of Transportation, and the Advocates for Highway and Auto Safety, 
support FHWA efforts to move towards MASH testing. These three 
commenters also urged FHWA to move to MASH promptly and set sunset 
dates for the installation of hardware previously crash tested to NCHRP 
Report 350. Although FHWA recognizes the commenters' interest in this 
subject, this is an issue outside the scope of this notice and request 
for comment. The FHWA is currently working with the American 
Association of State Highway and Transportation Officials (AASHTO) to 
set as an aggressive schedule as possible to develop an update to the 
MASH 2009 Implementation Plan.
    The other 13 commenters were from private industry, private 
organizations, or anonymous. Although none of these respondents 
commented on the proposed December 31, 2015, deadline to discontinue 
issuing Federal-aid eligibility letters for modified NCHRP 350-tested 
safety devices that are not tested under the MASH criteria, these 
commenters generally objected to the use of MASH to test roadside 
safety hardware. A summary of the comments in opposition to MASH 
testing, and FHWA's response to them, follows.
    Some commenters expressed their opinion that testing to the MASH 
criteria is unwarranted and that there are no in-service performance 
evaluations that show NCHRP Report 350-tested devices are causing 
serious or fatal injuries. Crash testing has shown that some products 
tested under NCHRP Report 350 criteria will fail the MASH criteria 
because passenger vehicles on our roads in general have become larger 
and heavier than those used for testing in the 1990's. The MASH 
reflects the change in the vehicle fleet on our Nation's highways and 
adds the pickup truck as a test vehicle for more devices. The FHWA 
believes these improvements are justified to improve safety for the 
traveling public.
    Some commenters expressed concern about the high cost of re-testing 
Category II devices and maintained that MASH-tested products will be 
more expensive due to testing costs and material costs. Some suggested 
NCHRP 350 Category II devices should be moved to Category I to be 
``self-certified,'' while others proposed that manufacturers be allowed 
to make minor changes to 350 devices. It must be noted that it is the 
States' decision whether or not to continue approving NCHRP Report 350 
devices that are currently being installed. Approval, installation, and 
maintenance of safety devices on Federal-aid projects is a State 
responsibility. The NCHRP 350-tested devices remain eligible for 
Federal-aid funding. The FHWA will not withdraw an existing Federal-aid 
eligibility letter for a product that currently meets NCHRP Report 350 
criteria. The proposed deadline does not prevent a manufacturer from 
modifying a device, does not impose any requirements for the 
installation of MASH-tested devices, nor does it prevent a State DOT 
from installing a device previously tested to the NCHRP 350 criteria. 
The proposed deadline only applies to those seeking a Federal-aid 
eligibility letter for a modified device previously tested to NCHRP 350 
criteria. It will be the States' responsibility to determine if all 
future proposed modifications made to existing 350 devices comply with 
NCHRP Report 350 criteria.
    Other commenters expressed their concern about a lack of MASH 
tested products and recommended that sunset dates be realistic to 
provide adequate time to develop products and receive approval. They 
also stated that sole-sourcing for MASH devices should be allowed if no 
alternatives are available. Another commenter said that FHWA's delay in 
issuing Federal-aid eligibility

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letters could be a problem and recommended that FHWA streamline the 
process to bring new MASH products to market. There was also concern 
about States' delay in adding devices to Qualified Products List. 
Although FHWA recognizes the commenters' interest in these subjects, 
these are issues outside the scope of this notice and request for 
comment. The FHWA is currently working with AASHTO to develop an update 
to the MASH 2009 Implementation Plan. The FHWA will continue to work on 
streamlining the process to seek Federal-aid eligibility for MASH 
tested devices. Finally, the General Material Requirements in 23 CFR 
635.411 permits a State to specify sole-source products if it certifies 
that no equally suitable alternate exists.
    Another commenter suggested that FHWA eliminate ``approvals'' based 
on engineering analysis or finite element analysis. Although FHWA 
recognizes the commenters' interest in this subject, this is an issue 
outside the scope of this notice and request for comment. However, FHWA 
would like to clarify that the agency does not have the authority to 
``approve'' safety hardware. Approval, installation and maintenance of 
safety devices on Federal-aid projects is a State responsibility.
    One commenter stated that FHWA should prohibit conflict of interest 
between labs and manufacturers. Although FHWA recognizes the 
commenters' interest in this subject, this is an issue outside the 
scope of this notice and request for comment. The FHWA only issues 
Federal-aid eligibility letters for roadside hardware devices that have 
been crash tested at accredited laboratory facilities, pursuant to [23 
CFR 637.209(a)(5)].
    There was one comment regarding the availability of the MASH to the 
public. The MASH is neither a Federal regulation nor guidance. The MASH 
was developed through the National Academy of Science's National 
Cooperative Highway Research Program and can be purchased from the 
AASHTO Web site (http://www.transportation.org/).
    Lastly, a commenter said that FHWA is avoiding its responsibility 
for ``approving'' safety hardware. The FHWA issues Federal-aid 
eligibility letters for devices that meet the applicable crash test 
criteria. While these letters are the most common way for roadside 
safety hardware to qualify for Federal-aid reimbursement, FHWA 
eligibility letters are not a requirement for these devices to be 
eligible for reimbursement on Federal-aid highway projects. The FHWA is 
charged with implementing the Federal-aid highway program in 
cooperation with the States and local government. Therefore, FHWA 
relies on its relationships with State DOTs to ensure roadside hardware 
satisfies crash test criteria. The FHWA has established strong 
guidelines and policies in order to encourage all State DOTs to use 
roadside safety hardware that has successfully met the applicable crash 
test criteria.
    In an effort to facilitate the implementation of the MASH, FHWA 
intends to discontinue issuing eligibility letters for requests 
received after December 31, 2015, for modified NCHRP 350-tested devices 
that do not involve full scale crash testing to the MASH. Modifications 
to NCHRP 350-tested devices that have, in the past, been based on 
engineering analysis or finite element modeling will no longer receive 
FHWA eligibility letters. Effective January 1, 2016, all changes to 
NCHRP 350-tested devices will require testing under MASH in order to 
receive a Federal-aid eligibility letter from FHWA.

    Authority: 23 U.S.C. 148 and 315.

    Dated: October 28, 2015.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
[FR Doc. 2015-28753 Filed 11-12-15; 8:45 am]
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