Repealing Federal Patented and Proprietary Products Rule is Good for Transportation Infrastructure.
Updated: Jun 21, 2021
In January, the Federal Highway Administration (FHWA) received in excess of 100 comments (including my own) on a proposed rule promoting innovation in the use of patented and proprietary products. The proposed rule is the result of a petition filed by the American Road & Transportation Builders Association (ARTBA). I congratulate FHWA Deputy Administrator Brandye Hendrickson and the FHWA for structuring the proposed rulemaking in the way they have which resulted in a high level and constructive dialogue contained in the comments submitted.
The pace of technological and process innovation in transportation over the last several years has been extraordinary. Electric and autonomous vehicles, drones and high-speed transit tunnels to name a few, are among some of the higher profile examples that will change everything. In the highway and bridge infrastructure sector, there have been many innovations in the application of more sustainable longer lasting materials like composites and precast concrete segments to digital construction. Advancements in project delivery including accelerated bridge construction and highway operations, have been profound over the last decade; lower profile perhaps, but just as significant. We must continue to collaborate in prioritizing our ability to accelerate the advancement and utilization of evolutionary technology into this critically important national marketplace – the 52 U.S. state transportation departments are the most important players in paving the road to innovation for private sector innovators.
The FHWA is currently considering two alternate co-proposals related to this rulemaking:
Amend and replace the requirements with a more flexible general requirement that enhances fairness, open competition, and transparency in the product selection process.
Rescind the requirements, encouraging further innovation in the development of new highway transportation technology and methods, as well as potentially reducing costs.
I've recommended Option 2, full repeal of the rule and I explain the basis for my own conclusions in my comments contained in the docket here.
The origin of the rule came from the Federal Aid Road Act of 1916. There is a lengthy and fascinating history on how the legislation came to be (which FHWA has documented here). One interesting fact was that in implementing the program, Logan Waller Page, Director of the Office of Public Roads (at the time under the Department of Agriculture), invited heads of the State highway agencies to review and comment on the regulations during a conference held in Washington, D.C. on August 16, 1916. Thirty-five states were represented at the conference, during which Page gave a speech. "During the question period after Page's speech, the only topic was the regulatory provision involving the use of patented products on Federal-aid highway projects" (Page 87 of the document linked above). While there have been revisions to the rule since then, the most recent in the form of updated guidance by FHWA in 2011 during my tenure as its Deputy Administrator, I explain in my comments why I believe it is time to begin with a clean slate in how we approach approval of innovative technology in the 21st century for the Federal Aid Highway Program.