Quality Assurance Procedures for Construction

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: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The FHWA is requesting comments on proposed revisions to its

regulation which establishes general requirements for quality assurance

procedures for construction on Federal-aid highway projects. The

proposed revisions will clarify existing policy and procedures and

provide additional guidance on the use of contractor- supplied test

results in acceptance plans and qualifications of laboratories and

testing personnel.

DATES: Comments must be received on or before September 12, 1994.

ADDRESSES: Submit written, signed comments to FHWA Docket No. 94-13,

Room 4232, HCC-10, Office of the Chief Counsel, Federal Highway

Administration, 400 Seventh Street, SW., Washington, DC 20590. All

comments received will be available for examination at the above

address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday except

legal Federal holidays. Those desiring notification of receipt of

comments must include a self-addressed, stamped postcard.

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 legal Federal

holidays.

SUPPLEMENTARY INFORMATION:

Background

The current regulations on sampling and testing of materials and

construction appear in 23 CFR Part 637 (1993), Construction Inspection

and Approval. These regulations were last revised in January of 1987.

The regulations were written around the traditional approach of the

State performing all the sampling and testing. The regulations do not

address the use of contractor testing. As a result, a number of

questions arose in those States and Federal Highway Administration

(FHWA) Federal Lands Highway offices which were using contractor

testing in their quality control/quality assurance (QC/QA) programs.

Since the existing regulations do not recognize the use of

contractor testing results in the acceptance program, which is the

process of accepting materials and construction, an internal committee

was established in 1992 to study the ramifications of using contractor-

performed sampling and testing results. The committee released the

results of its study in a report, ``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 indicates that contractor sampling and

testing can be used in acceptance programs provided that adequate

checks and balances are in place to protect the public investment. The

revisions that are proposed in this NPRM would implement the

committee's recommendations.

The NPRM, if promulgated, would replace the existing acceptance and

independent assurance sampling and testing programs with a

comprehensive system of checks and balances. Acceptance of materials

and construction would not be based solely on any one set of data and

would specifically require the State to monitor and inspect the

contractors' quality control program. The State's verification sampling

and testing would be used to ensure the quality of the product. In

addition, the system would provide for using results from the

contractors' quality control sampling and testing program in the

acceptance program if those results are validated by the State's

verification sampling and testing system. The verification sampling and

testing would be performed on independent samples obtained by the State

to verify the contractors' quality control data. If the results from

the contractors' quality control program and the State's verification

sampling and testing program do not agree a dispute resolution system

will be used to determine payment to the contractor.

The requirement for an independent assurance (IA) program would

remain in place. The IA program would use witnessing, split samples,

proficiency samples and equipment calibration as an independent check

of the field sampling and testing procedures and equipment to assure

the testing is being performed properly by both the State and the

contractor personnel.

The major changes in the regulation would be as follows:

1. The use of contractor testing results in the overall acceptance

program would be allowed, provided certain checks and balances are in

place.

2. The traditional type of acceptance program with the State

performing all of the testing would be allowed.

3. The IA program could be performed either on a system basis or on

a project by project basis. In a system approach, all equipment and

testing personnel would be assessed on a time frequency, regardless of

the specific project on which the testing occurs. The system approach

would allow the State to assess testing equipment and testing personnel

regardless of project location. This approach would ensure that the

testing on small projects is assessed and would also ensure that all

testing personnel are reviewed.

4. If the system approach to the IA program is used, an annual

report on the IA program would be required instead of a statement in

the project materials certificate concerning the IA program.

5. Qualified, designated agents of the State would be permitted to

perform the IA testing.

6. All testing personnel and laboratories would be required to be

qualified using State procedures. It is anticipated this provision will

have an effective date two years after the publication of the final

rule.

7. The State Highway Agency's (SHA) central laboratory would be

required to become accredited by the American Association of State

Highway and Transportation Officials (AASHTO) Accreditation Program. It

is also anticipated this provision will have an effective date two

years after the publication of the final rule.

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 in the docket at the above address. Comments received

after the comment closing date will be filed in the docket and will be

considered to the extent practicable, but the FHWA may issue a final

rule at any time after the close of the comment period. In addition to

late comments, the FHWA will also continue to file relevant information

in the docket as it becomes available after the comment closing date,

and interested persons should continue to examine the docket for new

material.

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

regulatory policies and procedures. The FHWA, at 23 CFR 637, currently

has regulations covering sampling and testing. The proposed revisions

would merely update these 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 (U.S.C. 601-612),

the FHWA has evaluated the effects of this proposal on small entities.

The FHWA concluded that this action would in fact provide some small

testing firms with an opportunity to perform more work than was allowed

by the previous regulations. Although the regulation would have a

positive impact on these testing firms, the number of firms affected

would be small and the amount of additional work would be

insignificant. Therefore, the FHWA hereby certifies that this

rulemaking would 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, and it has been determined

that this action would not have sufficient federalism implications to

warrant the preparation of a 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 30, 1994.

Rodney E. Slater,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA proposes to amend title

23, Code of Federal Regulations, part 637 by revising subpart B to read

as follows:

Subchapter G--Engineering and Traffic Operations

PART 637--CONSTRUCTION INSPECTION AND APPROVAL

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 SHA Engineer

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

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 SHA's

determination of the quality of the product as specified in the

contract requirements. These factors include verification sampling,

testing and inspection and may include validated 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 which are performed outside the SHA's central

laboratory.

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 accredited through

appropriate programs as determined by each SHA. As a minimum, the

qualifications shall be consistent with the equipment calibration and

verification requirements stipulated in sections 5.4 and 5.8 of AASHTO

R-18, Establishing and Implementing a Quality System for Construction

Materials Testing Laboratories.

Qualified sampling and testing personnel. Personnel who are

certified through appropriate programs defined by each State Highway

Agency (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.

Verification sampling and testing. Sampling and testing performed

to validate the quality of the product. If quality control sampling and

testing is used in the acceptance program, verification sampling and

testing will also be used to validate the quality control sampling and

testing.

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 in each Federal-aid highway construction project are in

reasonably close 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.

(1) Independent assurance program. The results of independent

assurance (IA) tests are not to be used as a basis for material

acceptance. Independent samples and tests or other procedures shall be

performed by qualified sampling and testing personnel who do not have

direct responsibility for quality control and verification sampling and

testing.

(2) Verification sampling and testing. The verification sampling

and testing are to be performed by the SHA or its designated agent

excluding the contractor and/or vendor.

(b) Laboratory accreditation program. Each SHA shall be accredited

by the AASHTO Accreditation Program or a comparable laboratory

accreditation program approved by the FHWA.

Sec. 637.207 Quality assurance program.

(a) Each SHA's quality assurance program shall provide for an

acceptance program and an independent assurance program consisting of

the following:

(1) Acceptance program. Each SHA's acceptance program shall consist

of the following:

(i) 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.

(ii) Identification of the specific location in the construction or

production operation at which verification sampling and testing is to

be accomplished.

(iii) The SHA shall inspect the product or construction or both for

attributes that are detrimental to the performance of the finished

product.

(iv) Quality control sampling and testing results may be used as

part of the acceptance decision provided that:

(A) The quality control program is approved and monitored by the

SHA;

(B) The sampling and testing has been performed by qualified

laboratories and qualified sampling and testing personnel;

(C) The results have been validated by the verification sampling

and testing. The validation of the quality control sampling and testing

shall be performed by using standard statistical tests. Both the means

and variances of the results from the quality control tests and

verification tests shall be compared to ensure that both sets of data

are testing the same population. The comparison procedures shall

provide equivalent or better reliability than those obtained with the

F-test for variances and the t-test for the means; and

(D) The quality control sampling and testing is evaluated by an IA

program.

(v) 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. The

program shall be performed by the SHA or its designated agent. Each IA

program shall include the following:

(i) 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.

(ii) The testing equipment can be evaluated by using frequent

calibration checks, split samples, or proficiency samples.

(iii) Split samples or proficiency samples shall be used to

evaluate testing personnel. A reasonable amount of the evaluations

shall include observation of the sampling and testing procedures.

(iv) 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 for the comparison of test results.

(v) 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 and submission of a materials certification,

conforming in substance to Appendix A of this regulation, 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. After (2 years after the date of publication of

the final rule in the Federal Register),

(1) All contractor, vendor, and SHA testing shall be performed by

qualified laboratories.

(2) Each SHA shall have its central laboratory accredited by the

AASHTO Accreditation Program or a comparable laboratory accreditation

program approved by the FHWA.

(3) 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) Any 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 (2 years after the date

of publication of the final rule in the Federal Register), all sampling

and testing performed for the contractor/vendor and the SHA 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 non-SHA qualified 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 SHA Engineer

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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 compare

favorably to the samples and tests that are used in the acceptance

program.)

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. 94-16718 Filed 7-11-94; 8:45 am]

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