March 20, 2018

The Federal Highway Administration (FHWA) has issued a new interim approval (IA) allowing the use of pedestrian-actuated rectangular rapid-flashing beacons (RRFB) at uncontrolled marked crosswalks. While this action resolves FHWA’s termination of the prior IA on December 21, 2017, it does not reinstate it, meaning that agencies with approval under the prior IA must still apply for approval under the new IA before installing RRFBs. The new IA incorporates research on RRFBs subsequent to the prior IA.

January 30, 2018

  • The FHWA has issued an important update and clarification to its Q&A on RRFBs (see Q3). In short, agencies may continue to consider the use of RRFBs as part of any design project already under way as of 12/21/17 if the agency determines that RRFBs are the most appropriate and feasible treatment.
  • Several states have begun to issue directives or guidance regarding the use of RRFBs. As Kittelson becomes aware of these state-specific guidance documents, we will post them below under Resources.

FHWA Terminates Interim Approval for RRFBs

January 19, 2018

On December 21, 2017, the Federal Highway Administration (FHWA) terminated the interim approval that allowed for the installation of rectangular rapid flash beacons (RRFBs). This action was taken not because of any safety ineffectiveness of RRFBs, but because of a legal patent issue that could not be resolved. Scott Beaird and Lee Rodegerdts of Kittelson attended the annual National Committee on Uniform Traffic Control Devices (NCUTCD) meeting that took place January 3 to 5, 2018, where Beaird and Rodegerdts heard first-hand why FHWA made this decision. Below is their recap of the meeting.

 

This seems very abrupt and will have a big impact. What led to this decision?

  • The Manual on Traffic Control Devices (MUTCD) does not allow the inclusion of devices that have been patented. This prohibition is in place to maintain uniformity of traffic control devices and to prevent the federal government from appearing to favor or endorse a private entity.
  • FHWA became aware of the patent issue after granting the interim approval for RRFB installation shortly after the final rulemaking for the 2009 MUTCD. The FHWA has been working for the past six years to resolve this issue. During this time, the patent holder has continued to expand the patent holdings, including expanding a patent to cover an alternate flash pattern developed through FHWA-sponsored research. Patents are issued through the United States Patent and Trademark Office, which is part of the Department of Commerce. There is no formal linkage between the Patent Office and FHWA to cover traffic control devices.

 

What will happen if an agency continues to install RRFBs?

  • Installing devices in accordance with the MUTCD is important for the sake of uniformity across the country and to ensure devices have undergone an appropriate experimentation process. Typically, there are two direct liabilities associated with installing devices not permitted under the MUTCD, under an interim approval, or through the FHWA experimentation process:
    • FHWA can withhold federal transportation funding from agencies not in compliance with the MUTCD.
    • Installing devices not in compliance with the MUTCD may increase legal liability for an agency and designers should an incident occur. It is important to emphasize that FHWA’s termination of approval does not question the proven safety performance and effectiveness of RRFBs.

 

How should we address RRFBs that are already installed and operating?

  • The termination memorandum from FHWA indicates that all currently installed RRFBs may stay in place until the end of their useful life. This means that existing installations do not need to be removed.

 

 What if an RRFB is damaged? Can it be replaced?

  • According to FHWA’s termination memorandum and FAQ, replacement RRFBs cannot be installed. Because each individual RRFB is part of a system, and replacing one RRFB with another device requires replacing multiple devices, agency staff should make decisions to replace RRFBs based on documented engineering judgment and in consultation with agency legal counsel.

 

Will RRFBs continue to be available for purchase?

  • Several vendors have indicated that they will continue to sell RRFBs, as they service markets not under the regulation of the MUTCD. However, a number of vendors have been sued by the patent holder, and some have filed for bankruptcy as a consequence of the lawsuits.

 

What about projects currently under construction or nearing the construction phase?

  • FHWA verbally indicated during the NCUTCD meeting that FHWA Division Offices will assist states and local agencies with case-by-case guidance for RRFBs that are under contract or purchased but not yet installed. We suggest contacting your local FHWA division office to discuss installation of RRFBs for projects near or under construction. As stated above, to limit potential future liability, installation decisions should be made with documented engineering judgment and in consultation with agency legal counsel.

 

What other treatments are available for enhancing pedestrian safety?

  • FHWA has provided an informational brief [PDF] of other pedestrian crossing treatments that can be considered as an alternative to RRFBs.
  • Key benefits of RRFBs: (1) RRFBs are active only when activated by a pedestrian; and (2) they do a good job of attracting driver attention. Other devices, such as warning signs with embedded flashing LED borders, offer the same benefits, and agencies and designers should consider these as alternate treatments when installing enhanced pedestrian crossings. FHWA’s Safe Transportation for Every Pedestrian (STEP) initiative provides additional guidance on options for improving pedestrian safety.

 

What is FHWA doing to avoid similar patent issues in the future?

  • In response to this issue, FHWA has indicated it will strengthen disclosures and agreements with petitioners during the experimentation and approval processes.

 

Is this action by FHWA possibly an effort to force the hand of the RRFB patent holder, and could this all be resolved in the near future?

Some have speculated that FHWA’s termination action is simply a “shot across the bow” of the patent holder, and that it may all be resolved very soon. Unfortunately, after hearing from FHWA at the NCUTCD meeting, Beaird and Rodegerdts do not believe this is the case, given:

(1) how long FHWA has been working to resolve this issue;

(2) FHWA’s intermediate step in January 2017 of suspending new approvals, which did not seem to effect a change in the legal approach of the patent holder; and

(3) the patent holder’s continued expansion of patents.

 

Resources

 

For additional information, please contact Scott Beaird, 541-312-8300, sbeaird@kittelson.com or Lee Rodegerdts, 503-228-5230, lrodegerdts@kittelson.com.