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Federal Highway Administration to Rescind Outdated Patent Rules

Today, the Federal Highway Administration (FHWA) announced it will rescind its World War I-era regulation governing the use of patented and proprietary materials in federal-aid highway projects. The final rule will be published tomorrow in the Federal Register, taking effect on October 27.

Back in January of this year, CEI submitted comments in support of this approach. As I noted at the time in an accompanying blog post, the ability of states to use superior, cost-saving products was hamstrung by the provision that was supposed to help them: the public interest finding exemption.

The process of securing FHWA approval for a public interest finding (PIF) exemption is complex, resource-intensive, and opaque, which has led many state grant recipients to not bother with applying for a PIF in the first place. In 2013, the Obama administration attempted to clarify the patented and proprietary products rule and the PIF process, but this effort failed to materially increase the number of PIF requests and approvals.

As a result of this obsolete regulatory regime, state highway agencies use more expensive and less safe products than they otherwise would absent this regulation. One example, which I highlighted in our comments, is Mobile Barriers’ MBT-1.

The MBT-1 is a patented and proprietary 42- to 102-foot highway barrier trailer that attaches to standard truck tractors. These devices can quickly be deployed and redeployed to secure road work zones, which is particularly useful for resurfacing projects that rapidly advance down stretches of highway or for emergency road closures.

The primary competition to the MBT-1 is the traffic cone—not exactly a rigid protection barrier—that must be dropped from and lifted onto truck beds immediately adjacent to moving traffic. But even use of more protective water- or sand-filled mobile barriers makes this a time consuming, costly, and dangerous part of road work. Research suggests that MBT-1-style mobile barriers can reduce the direct operational and safety costs by $1.9 million per barrier per year compared to traditional coned-off lane closures. Yet use of these devices is much less common than it would be due to the arduous PIF exemption process.

We are glad FHWA agreed with us and other commenters urging for a clean rescission of this obsolete regulation. Going forward, we expect state departments of transportation to be better positioned in modernizing their highways for a 21st century of self-driving cars and other novel beneficial road transportation technologies currently under development.