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On Sept. 5, the American Road & Transportation Builders Association (ARTBA) submitted testimony to the House Highways & Transit Subcommittee, arguing that 23 CFR 635.411, a 102-year old federal regulation, is curbing transportation innovations that could improve the safety and quality of the nation's major roadways.

The rule prohibits state and local governments from using patented or proprietary products on highway and bridge projects that receive federal funding. A state can request a waiver for a product to the Regional Federal Highway Administrator (RFHWA) who ultimately has final administrative authority on the decision.

In its testimony, ARTBA argued that since many new technologies incorporate intellectual property protected by patents or proprietary processes, the rule impedes the development and deployment of innovations that various congressional and U.S. Department of Transportation (U.S. DOT) initiatives are intended to foster.

“The goal of federal highway policy should be to deliver the safest, most efficient, and fiscally responsible highway and bridge network possible. Achieving that goal must include a thoughtful assessment of technological and other advances to ensure infrastructure development strategies are in fact delivering the best possible outcome as opposed to the widest achievable outcome," says ARTBA.

They also noted other federal agencies, such as the U.S. Department of Defense, have set up procurement systems that allow for the appropriate use of sole source contracts for patented or proprietary products to accomplish their missions.

In March, the association formally petitioned the U.S. DOT to repeal 23 CFR 635.411 and is awaiting a response from the agency. Established in 1902, ARTBA represents the U.S. transportation construction industry before Congress, the White House, federal agencies, courts, news media, and the general public.