Quality Assurance Procedures for Construction |
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Rodney E. Slater
Federal Highway Administration
12 July 1994
[Federal Register Volume 59, Number 132 (Tuesday, July 12, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-16718] [[Page Unknown]] [Federal Register: July 12, 1994] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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 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 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] BILLING CODE 4910-22-P