Frequently Asked Questions Related to the Termination of Interim Approval No. 11, Rectangular Rapid-Flashing Beacons (RRFB)
The following list of questions relates to the termination of Interim Approval No. 11, Rectangular Rapid-Flashing Beacons (RRFB):
- How can agencies ensure the safety of pedestrians at uncontrolled midblock crosswalks?
- What happens to the RRFBs that are already installed by the approved agencies?
- What if an agency was preparing or has awarded a contract that includes the installation of a new RRFB, but it has not yet been installed?
- How do agencies determine whether an existing device is "serviceable" or has reached the end of its service life?
- Does this action apply only to projects that involve Federal funds?
- Why are proprietary traffic control devices not allowed?
- Why can't an exception be made to allow a particular patented device?
- Could a variation of the RRFB, changing either shape and/or flash rate, be allowed?
- Can an exception to the prohibition on patented devices be made for devices whose use is optional rather than required by the MUTCD?
- How does the prohibition on patented devices align with supporting innovation and the use of new technologies?
- Does the prohibition of proprietary devices apply to all traffic control devices?
- Does FHWA prohibit all types of proprietary products?
- What statutes or regulations govern patented or proprietary traffic control devices?
- What if agencies continue to install RRFBs?
Questions and Answers
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Question: How can agencies ensure the safety of pedestrians at uncontrolled midblock crosswalks?
Answer:
- The RRFB, while popular and effective, is not the only treatment available for uncontrolled crosswalks. Every crosswalk should be evaluated to determine the most appropriate treatment(s) based on the specifics of each location. To assist agencies and practitioners, the FHWA has prepared a four-page informational brief on effective treatments that comply with the MUTCD and can be used individually or in combination at uncontrolled marked crosswalks.
- In order to assist professionals in selecting the most appropriate treatment for the conditions, the FHWA plans to initiate research to determine the comparative effectiveness of the treatments currently available in the MUTCD, as well as other novel concepts. Furthermore, we remain open to working with agencies and practitioners on ideas of modifications or configurations to existing devices or potentially new non-patented ones that can be explored as potential additional solutions.
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Question: What happens to the RRFBs that are already installed by the approved agencies?
Answer:
- Existing RRFBs may remain in operation until they reach the end of their useful service life, but no new or replacement RRFBs may be installed.
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Question: What if an agency was preparing or has awarded a contract that includes the installation of a new RRFB, but it has not yet been installed?
Answer:
- Typically, when a device is discontinued, it is FHWA's intent that public agencies move as quickly as possible to install compliant devices. These situations usually involve concerns with performance of the discontinued device or a need for greater uniformity. The RRFB was discontinued for other reasons (i.e., it is subject to a patent), and not one of performance.
- We encourage each agency to carefully evaluate if they can readily replace the RRFB in the design stage with another suitable treatment. Where this is particularly challenging, we encourage agencies to work with their FHWA Division offices to identify the most appropriate solution for their circumstances.
- However, FHWA recognizes that agencies that had previously requested and received approval from us to install RRFBs under the interim approval procedures were working in good faith and with safety of pedestrians as their top concern. We also recognize the importance for the efficient use of city, state, and Federal-aid funds previously committed to the procurement and installation of this device. Therefore, FHWA believes it is in the public interest for these agencies to complete the projects that have documentation of RRFBs with procurements issued and/or construction plans underway prior to FHWA's December 21, 2017, notice.
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Question: How do agencies determine whether an existing device is "serviceable" or has reached the end of its service life?
Answer:
- The MUTCD does not specifically define "serviceable" condition because serviceability will depend on the type of device under consideration. In general terms, if the device is capable of being serviced with minimal effort or replacement parts so that it continues to operate as intended, and the device is otherwise substantially intact, then it can be considered to be in serviceable condition. If the device is damaged or not operational beyond reasonable repair, then it is likely no longer serviceable.
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Question: Does this action apply only to projects that involve Federal funds?
Answer:
- No. The MUTCD applies to all roads open to public travel regardless of funding source (see Paragraph 2 of the MUTCD Introduction). Interim approvals are administered under the provisions of the MUTCD. Therefore, the action applies to all roads open to public travel regardless of funding source.
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Question: Why are proprietary traffic control devices not allowed?
Answer:
- Patented traffic control devices run counter to the principle of uniformity. If one patented device for a specific application were to be allowed, then competing patented devices developed to serve the same purpose with unique designs could not be denied approval. The result would be a violation of the road user's expectancy due to the inconsistent appearance and messages of these widely differing devices. Traffic control devices are designed for instant recognition and response by the road user. Without this consistency, there would be longer response and reaction times, potentially compromising the safety of road users.
- The allowance of proprietary traffic control devices in the MUTCD also violates the general prohibition against the Federal government endorsing or appearing to endorse a product, company, or individual.
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Question: Why can't an exception be made to allow a particular patented device?
Answer:
- The Federal government cannot be in a position where it favors and specifies one company over all others or where it might be considered to induce other companies to infringe on a patent. Therefore, the allowance of one patented device would mean that all patented devices would have to be allowed, potentially for the same conditions, undermining uniformity that enables that instant recognition and response by the road user.
- The allowance of proprietary traffic control devices in the MUTCD also violates the general prohibition against the Federal government endorsing or appearing to endorse a product, company, or individual.
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Question: Could a variation of the RRFB, changing either shape and/or flash rate, be allowed?
Answer:
- All flashing beacons are required to comply with the provisions of the MUTCD (see Chapter 4L). Rapid-flashing beacons in other shapes or flash patterns subject to patents are not eligible for experimentation.
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Can an exception to the prohibition on patented devices be made for devices whose use is optional rather than required by the MUTCD?
Answer:
- Many of the devices contained in the MUTCD are optional. Interim approvals provide only for optional use of a device, subject to the terms specified within the interim approval. Regardless of whether a device is optional, recommended, or required, all traffic control devices on roadways open to public travel must comply with the MUTCD.
- The absence of a device from the MUTCD (or lack of an interim approval) does not make its use "optional." Rather, the MUTCD provides either the official experimentation process or the interim approval process so that novel devices can be used under controlled conditions. However, patented or proprietary traffic control devices are not eligible for experimentation or interim approval. Section 1A.10 of the MUTCD contains additional information on these processes.
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How does the prohibition on patented devices align with supporting innovation and the use of new technologies?
Answer:
- The MUTCD, through its established official experimentation process, encourages and facilitates innovation and the use of new technologies. While the primary reason for the prohibition of patented devices is to ensure uniformity, it also has the effect of economic viability to installers of traffic control devices for the benefit of the road user.
- The MUTCD, by virtue of being the national standard, inherently creates a market for traffic control devices, which relies on innovation and new technologies to improve on existing devices or develop new devices for new applications. By contrast, allowing patented or proprietary traffic control devices could potentially close the market or limit it to a select few manufacturers, stifling competition and innovation.
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Does the prohibition of proprietary devices apply to all traffic control devices?
Answer:
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Question: Does FHWA prohibit all types of proprietary products?
Answer:
- No. The prohibition on proprietary or patented traffic control devices exists to ensure uniformity and consistency in communicating directly with the road user. Proprietary products are allowed in other aspects of highway transportation, such as guard rail systems, sign supports, and bridge reinforcing components, where uniformity might not be critical. Unlike traffic control devices, these types of items do not communicate directly with the road user.
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Question: What statutes or regulations govern patented or proprietary traffic control devices?
Answer:
- 23 CFR Part 655 governs all aspects of traffic control devices on roads open to public travel, including the non-use of patented devices. While there are regulations that govern patented or proprietary items in other aspects of highway transportation, they do not supersede those regulations that are specific to traffic control devices.
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Question: What if agencies continue to install RRFBs?
Answer:
- Traffic control devices on roads open to public travel must comply with the MUTCD. As with any non-compliance, the FHWA Division office will work with the State agency to achieve compliance.
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