The purpose of this document is to provide guidance to Federal Highway Administration (FHWA) division offices and a consistent framework for determining when to permit an exception for motorized use on nonmotorized trails and pedestrian walkways under 23 U.S.C. § 217(h)(5). The relevant legislation reads as follows:
23 U.S.C. § 217. Bicycle Transportation and Pedestrian WalkwaysNonmotorized trails and pedestrian walkways, by their nature, do not permit the use of motorized vehicles. However, there may be exceptional circumstances where motorized use should be permitted on segments of nonmotorized facilities. A decision to grant an exception should take place only after careful consideration to make sure that nonmotorized users and adjacent or nearby property owners are not unduly impaired. An exception should be considered only when other reasonable options have been exhausted. The exception may allow limited use of segments of nonmotorized trails and pedestrian walkways, such as for 90 degree crossings, short doglegs, crossing structures such as bridges, or other exceptional circumstances.
Note Concerning Electric Personal Mobility Devices: The Federal Transit Administration issued Disability Law Guidance on Segways which allows persons with mobility related disabilities who use an electric personal mobility device to use Federally-funded nonmotorized facilities. (For facilities on Federal lands, Federal Land Management Agency regulations supersede this USDOT policy.) The authority responsible for a specific nonmotorized facility may wish to issue a permit for the person with disabilities to display on the device so that others using the nonmotorized facility can recognize the legitimacy of this use. This same authority also may establish operating conditions such as speed limits or other restrictions needed for the safe operation of the facility by all users. See www.transit.dot.gov/regulations-and-guidance/civil-rights-ada/use-segways-transportation-vehicles. Questions concerning disability issues should be directed to Bob Cosgrove or Candace Groudine, FHWA External Civil Rights Programs.
Under 23 U.S.C. § 217(h), existing and proposed nonmotorized trails and pedestrian walkways using Federal transportation funds do not permit motorized use. However, the legislation authorizes exceptions, under certain circumstances, for permitting maintenance vehicles, snowmobiles, motorized wheelchairs, electric bicycles, and for "such other circumstances as the [U.S.] Secretary [of Transportation] deems appropriate."
In 49 CFR § 1.48(b)(2), FHWA is delegated authority to administer provisions in Title 23 Chapter 2, Other Highways. Within FHWA, the Office of Natural and Human Environment has authority to develop policies and procedures for bicycle and pedestrian activities, according to the FHWA Delegations and Organization Manual (FHWA Order M1100.1A).
Situations may arise in which it is necessary to consider permitting limited motorized use of a segment of a nonmotorized trail facility or a pedestrian walkway. For example, if an existing or proposed nonmotorized trail offers the only reasonable route across a barrier (such as a bridge over a waterway, highway, railroad, etc.), shared use with motorized users such as all terrain vehicles (ATVs) may be considered for a specific segment of the trail facility. There may be situations where allowing motorized use on an otherwise nonmotorized facility may reduce environmental impact when compared to having separate facilities. These situations may fall under "such other circumstances as the Secretary deems appropriate" as cited above.
Programmatic Intent: Based upon the language of § 217(h), FHWA's intent is to allow motorized use on nonmotorized trails or pedestrian walkways only in exceptional cases. The FHWA Division Offices should consider what significant data should be gathered, and carefully document the reasons for an exception. The exception should not unduly impair nonmotorized operation of the trail or pedestrian walkway, or violate the expectations of adjacent or nearby property owners. An exception should be considered only when other reasonable options have been exhausted. The exception may allow limited use of segments of nonmotorized trails and pedestrian walkways, such as for 90 degree crossings, short doglegs, crossing structures such as bridges, or other exceptional circumstances.
Extensive consideration should be given to the original intended use of the trail or pedestrian walkway. Change requests should not be used on recently constructed trails or pedestrian walkways (seemingly to avoid the Federal restriction against motorized use). The entities with jurisdiction over the trail or pedestrian walkway should be encouraged to honor the original agreement and intended use.
For newly constructed trails or pedestrian walkways, justification for permitting motorized use will benefit from documenting issues such as the need for transportation connectivity for both motorized and nonmotorized use.
The person or entity requesting an exception is encouraged to document why the motorized use of the trail or pedestrian walkway is the preferred or necessary alternative. This documentation may include a review of alternatives considered.
FHWA in consultation with the State Department of Transportation (DOT) may specify which motorized uses are being permitted under this exception. Similarly, FHWA in consultation with the State DOT may impose conditions on motorized vehicle use of nonmotorized trails, such as time of day, seasonal, or weather-related restrictions. The decision to permit motorized use may be for an initial trial period, before a final decision is made.
All requests for an exception to permit motorized use are encouraged to have an inclusive and documented public involvement process, consistent with the State's public involvement procedures.
Upon completion of the decisionmaking process, the FHWA Division Office should prepare a summary of the request and the rationale for the decision. The decision should be sent to FHWA Headquarters in the attached format (see the section entitled Summary of Decision at the end of this document).
Level of Decisionmaking: Using the framework in this document, FHWA division offices have authority to determine, in consultation with the State DOT, on a case-by-case basis, whether to permit motorized use of nonmotorized trails or pedestrian walkways under 23 U.S.C. § 217(h)(5). FHWA division offices are encouraged to consult with the FHWA Headquarters Office of Planning, Environment, and Realty, Bicycle and Pedestrian Program in these decisions as needed.
The FHWA division office and the State DOT should use the framework presented in this document to come to a joint determination regarding whether motorized use should be permitted for specific segments of the specific trail facility. In case of a disagreement, or when the State is requesting the exception, the responsibility for the final decision rests with the FHWA division office.
Use of a Consistent Framework or Process: The decision whether to permit motorized use is site specific. The factors included in this document are suggested to ensure that FHWA division offices and the States use a consistent process. The FHWA division office or the State may consider additional factors as part of the decisionmaking process. The FHWA division office should be proactive in asking the State DOT and Federal Land Management Agencies whether they have additional factors to consider in making a determination on a particular trail or pedestrian walkway facility.
Responsibility for Data Collection: The individual, nongovernmental organization or government agency submitting the request is encouraged to provide data needed to consider each factor presented in this document and any additional data requested by the State DOT and/or by the FHWA division office. Other trail user groups or interested parties also may supply data to the State DOT and the FHWA division office.
Environmental Reviews: If no changes to the trail or pedestrian walkway are required, FHWA approval would likely be a categorical exclusion action. If construction to modify the facility were needed to allow the motorized use, then the National Environmental Policy Act (NEPA) "project" "class of action" would need to be determined subject to NEPA. The type of activity and the impacts to the environment would dictate the level of NEPA review (see 23 Code of Federal Regulations (CFR) Part 771).
Tracking of Exceptions Granted: When a decision is made to grant an exception, the FHWA division should inform the FHWA Headquarters Office of Planning, Environment, and Realty. That Office will maintain a list of exceptions granted which will be posted on its Bicycle and Pedestrian Program Guidance Web site.
Section 217 applies to any bicycle transportation and pedestrian walkway facility, including trails, funded under the Federal-aid highway program, for a pedestrian walkway or for a trail designated for nonmotorized use. This includes all Federal-aid highway funding program categories, except as noted below.
Section 217 does not apply to:
Examples of Motorized Vehicles Generally Prohibited Under 23 U.S.C. § 217(h)
The following list provides examples of motorized vehicles generally prohibited under 23 U.S.C. § 217(h):
Note the exceptions in 23 U.S.C. § 217(h)(1) - (4) [at the beginning of this document]: for example, an ATV, utility vehicle, or construction vehicle used for sidewalk or trail maintenance may be permitted while engaging in sidewalk or trail maintenance work.
Also note that for the purposes of this Framework, FHWA defines "snowmobile" based on the definition from two sources. First, the International Snowmobile Manufacturers Association defines a snowmobile as "a self-propelled vehicle intended for off-road travel primarily on snow, having a curb weight of not more than 453.59 kg (1,000 lb); driven by track or tracks in contact with snow; and steered by a ski or skis in contact with the snow." Second, 23 CFR § 652.5(m) defines a snowmobile as "a motorized vehicle solely designed to operate on snow or ice."
The following factors should be considered when deciding whether to permit motorized use on part of a nonmotorized trail or pedestrian walkway. These factors are not prioritized. Some may have greater weight or influence than others, depending on local circumstances. Additional factors may be considered. The factors are similar for existing and for proposed new trails, but may be applied differently as necessary.
The factors do not have thresholds or specific numeric decision points. Although the factors are generally uniform for different localities, the specific values of each factor should be based on local conditions. For example, trail user volumes differ greatly for trails in different localities.
For each factor a number of questions are provided that highlight the most relevant issues. These guiding questions are intended to help illustrate what data may be needed and what issues should be considered. While some specific questions may not be applicable to particular projects, each factor should be considered.
Factors
If the proposed use is resolved at this stage, then no documentation is needed.
Financial Responsibilities
Who will be financially responsible for needed changes, including costs related to planning, design, construction, maintenance, operations, and enforcement? What agreements are needed to assign financial responsibilities?
Initial Trial Periods and Reconsiderations of the Exception
Exceptions may be granted for an initial trial period to allow reconsideration based on actual operational effects, before a "final" determination is made. Any reconsideration should include public involvement and consideration of significant site-specific factors.
Note: Factor 12 allows for a revocation of a "final" decision at a later time if warranted.
A summary of reconsiderations and final determinations should be submitted to FHWA Headquarters Office of Planning, Environment, and Realty, Bicycle and Pedestrian Program.
Monitoring Operations after an Exception is Permitted
A mechanism should be established to periodically monitor trail operations after an exception is permitted. This mechanism should include a process for assigning responsibility for addressing any operational problems that may arise.
Revoking an Exception
A decision to permit motorized use of nonmotorized facilities may be revoked for either of two reasons.
First, the State and/or the trail owner or manager may revoke the exception at any time. No FHWA approval is necessary (because revoking the exception returns the facility to its previous uses). The State is encouraged to notify the division office, and the division office should notify the FHWA Headquarters Office of Planning, Environment, and Realty, Bicycle and Pedestrian Program for posting on its Bicycle and Pedestrian Program Guidance Web site.
Second, FHWA may revoke the exception based on new information about the trail. This information could include changes to:
Except for an emergency situation, the division office should document the reasons for the revocation and notify the State DOT. The State should be given an appropriate timeframe to respond (such as 15, 30, 45, or 60 days). The division office should report the final decision to the FHWA Headquarters Office of Planning, Environment, and Realty, Bicycle and Pedestrian Program.
If there is an emergency situation, FHWA may issue a revocation that is effective immediately. The division office should report the decision to the FHWA Headquarters Office of Planning, Environment, and Realty, Bicycle and Pedestrian Program.
If a person or entity contacts a State DOT to request an exception to permit motorized use of a portion of a federally-funded nonmotorized trail or pedestrian walkway, the State DOT is encouraged to provide the petitioner with a list of factors and questions based on this document, along with others that it may deem relevant. The petitioner is encouraged to gather the data and provide it to the State DOT for its consideration. Based on the data presented, the State DOT will then provide its recommendation to FHWA, and FHWA will decide whether or not to concur. Final responsibility for making the decision rests with the FHWA division office.
Due to the specific nature of trail or pedestrian walkway use, this determination should be made on a case-by-case basis and should not be done by a blanket determination for more than one trail or pedestrian walkway at a time. The decision should take into account not only the factors and questions, but also consider the weight or importance of individual factors. The decision should be the result of a careful consideration of all the issues involved and should be well documented.
Note: Written documentation of how each factor was considered and specifically dealt with should be prepared and kept as part of the file on the particular trail or pedestrian walkway facility, and submitted to the FHWA Headquarters Office of Planning, Environment, and Realty, Bicycle and Pedestrian Program. The FHWA will post exceptions (and revocations) on its Bicycle and Pedestrian Program Guidance Web site.
Exception for Allowing Motorized Use of a Federal-aid Nonmotorized Facility Under 23 U.S.C. § 217(h)
The FHWA division office should send an electronic copy of this information to FHWA Headquarters' Office of Planning, Environment, and Realty, Bicycle and Pedestrian Program. That Office will maintain these summaries and provide a nationwide list of exceptions permitted on its Bicycle and Pedestrian Program Guidance website.
Summary of the Request
Include a description of the trail or pedestrian walkway facility and the change requested for that facility. Include a summary of each of the following factors:
Rationale for the Decision: A brief discussion of how the decision was reached including the factors or issues that were most important.
Decision Reached: An explanation of the decision reached including any conditions put upon the use of the facility by motorized users.
