[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
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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.
[[Page 33718]]
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.)
[[Page 33719]]
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
