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FHWA Formally Rescinds Proprietary Products Rule

Thu September 26, 2019 - National Edition

Mobile barriers were designed to keep worker safe in work zones, but are not being widely used due to the Proprietary Products Rule.
Mobile barriers were designed to keep worker safe in work zones, but are not being widely used due to the Proprietary Products Rule.

The Sept. 26 Federal Highway Administration (FHWA) repeal of a 103-year-old federal procurement rule is a major victory for motorists that should spur deployment of new technologies to help save lives, minimize congestion and improve the performance of the nation's highways, the American Road & Transportation Builders Association (ARTBA) says.

The FHWA formally rescinded 23 CFR 635.411 (commonly known as the "proprietary products rule"), a federal regulation that prohibits state and local governments from using patented or proprietary products on highway and bridge projects that receive federal funding — unless those products qualify for limited exceptions. The rule was adopted in 1916 by the U.S. Department of Agriculture, which then managed the emerging federal-aid highway program.

ARTBA formally petitioned the U.S. Department of Transportation (U.S. DOT) in March 2018 seeking repeal. In response, the agency issued a "Notice of Proposed Rulemaking" in November 2018.

"This archaic regulation was a roadblock to innovation," ARTBA President and CEO Dave Bauer said. "The status quo is the only thing that should be off the table as we seek to deliver and fund transportation solutions."

In its decision, FHWA characterized the rule as a "barrier to innovation in highway technology" and noted that its repeal "best provides State DOTs [Departments of Transportation] greater flexibility to use innovative technologies in highway transportation."

"We would like to thank Secretary of Transportation Elaine Chao and Federal Highway Administrator Nicole Nason for their nonstop pursuit of President Trump's directive to cut bureaucratic obstacles to infrastructure improvements," Bauer added.

The FHWA action will free up states to use federal highway funds on a host of patented or proprietary road and bridge technologies that can help deliver a safer and more efficient roadway system for American motorists and businesses. These include reflective road lane dividers that deter tired motorists from drifting into oncoming traffic, traffic signs that minimize injury by collapsing at the slightest impact and road barriers on wheels that provide physical but movable walls between traffic and construction workers.

"This is only the first step in an important process," Bauer said. "We must continue to explore how best to integrate new technologies into the transportation marketplace and ensure that new, beneficial ideas are not prevented from reaching the driving public. At the same time, we have confidence transportation agencies will work to protect the integrity of procurement processes in their respective states."

ARTBA was assisted in the petition action by the Washington, D.C., law firm, Venable LLP. The Venable team was led by former U.S. Secretary of Transportation James Burnley.

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