Bicycle Transportation and Pedestrian Walkways - Legislative and Policy History

Federal Highway Administration (FHWA) Summary: March 29, 2010

Section 217 of Title 23 of the United States Code (23 U.S.C. 217), Bicycle Transportation and Pedestrian Walkways, was originally enacted on August 13, 1973. It has been revised several times since. There were major revisions made through the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991, and additional revisions in subsequent legislation. The Americans with Disabilities Act (ADA) of 1990 also affected how pedestrian facilities must be considered and constructed.

The regulation in Title 23 of the Code of Federal Regulations, Part 652 (23 CFR 652) was enacted on March 22, 1984. Much of 23 CFR 652 is obsolete because of laws enacted since 1984, and associated policy changes. See Revisions Needed for 23 CFR Part 652.

Title 23 is available at the Government Printing Office U.S. Code Browse. A detailed history of legislative amendments follows the text for each section. For Section 217, see: Text or PDF.

Here are the most relevant sections of legislation and policy that relate to bicycle transportation facilities and pedestrian walkways that have been enacted since 1990.

The Americans with Disabilities Act (ADA) of 1990

• The Americans with Disabilities Act (ADA) of 1990 (Public Law 101-336, 42 U.S.C. 12181) prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications. Transportation facilities, including pedestrian facilities, are covered under the ADA. The ADA did not amend Title 23, but it influenced subsequent legislation and policy development.

Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991

• The Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991 (Public Law 102-240, December 18, 1991) established new Federal-aid highway program funding categories with broad eligibility for bicycle and pedestrian facilities, including National Highway System (NHS), Congestion Mitigation and Air Quality Improvement Program (CMAQ), Surface Transportation Program (STP), and Federal Lands Highway Program funds. The list of projects eligible under the STP includes:
  • Bicycle transportation and pedestrian walkways.
  • Highway and transit safety infrastructure. ISTEA set aside 10 percent of STP funds for safety programs.
  • Transportation Enhancement (TE) activities. ISTEA defined ten TE activities: two of which were facilities for pedestrians and bicycles, and preservation of abandoned railway corridors for pedestrian or bicycle trails. ISTEA set aside 10 percent of STP funds for TE activities.
• ISTEA Section 1033 rewrote 23 U.S.C. 217, and changed the eligibility for bicycle transportation and pedestrian walkways in ways that superseded the restrictions in 23 CFR 652, rendering much of 23 CFR 652 obsolete.
  • ISTEA authorized bicycle transportation facilities and pedestrian walkways for Surface Transportation Program (STP) and Congestion Mitigation and Air Quality Improvement Program (CMAQ) funds.
  • ISTEA authorized bicycle facilities for National Highway System (NHS) funds.
  • ISTEA authorized pedestrian walkways and bicycle transportation facilities eligible for Federal Lands Highway Program funds in conjunction with Federal Lands Highway projects.
  • ISTEA required State Departments of Transportation to use STP or CMAQ funds to fund a State bicycle and pedestrian coordinator.
  • ISTEA established the Federal share for bicycle and pedestrian projects at 80 percent (further superseded in 1995).
  • ISTEA amended the exceptions for motorized vehicle use on pedestrian walkways and trails.
• ISTEA established 23 U.S.C. 134 (metropolitan planning) and 23 U.S.C. 135 (statewide planning). The transportation planning processes called for accommodation of pedestrians and bicyclists.
• ISTEA established the National Recreational Trails Funding Program (superseded in 1998).

National Highway System Designation Act of 1995

• Section 310 of the National Highway System Designation Act of 1995 (Public Law 104-59, November 28, 1995, 109 STAT 582) [NHS Act] amended 23 U.S.C. 217(f), the Federal share, to be in accordance with 23 U.S.C. 120(b) (rather than a strict 80 percent).

Transportation Equity Act for the 21^st Century (TEA-21) of 1998

• The Transportation Equity Act for the 21^st Century (TEA-21) of 1998 (Public Law 105-178, as amended by title IX of Public Law 105-206) made amendments to Title 23.
• TEA-21 amended the eligible projects under the STP to include the modification of public sidewalks to comply with the Americans of Disabilities Act of 1990.
• TEA-21 added two TE activities (to a total of 12), including safety and educational activities for pedestrians and bicyclists.
• TEA-21 amended the metropolitan and statewide transportation planning processes in 23 U.S.C 134 and 135, enhancing accommodation for pedestrians and bicyclists.
• Section 1202 of TEA-21 made several technical amendments to Section 217.
  • TEA-21 amended Section 217(b) by inserting "pedestrian walkways" (to allow pedestrian walkways to be constructed using National Highway System funds).
  • TEA-21 amended §217(g) by revising the planning requirements to consider bicyclists and pedestrians in highway planning and design, and safety.
  • TEA-21 amended §217(h), the motorized use restrictions, to consider motorized wheelchair users as pedestrians, and to provide State or local discretion to allow electric bicycles.
  • TEA-21 amended §217(j) to add definitions for electric bicycle, pedestrian, and wheelchair.
  • TEA-21 required the USDOT to issue Design Guidance on approaches to accommodate bicycles and pedestrians (issued on February 28, 2000).
• TEA-21 required the USDOT to establish a national bicycle and pedestrian clearinghouse.
• TEA-21 replaced the National Recreational Trails Funding Program with the Recreational Trails Program.

Additional Guidance and Resources (under TEA-21)

• FHWA issued FHWA Guidance - Bicycle and Pedestrian Provisions of Federal Transportation Legislation on February 24, 1999 to implement the TEA-21 amendments (revised again in 2008).
• FHWA issued Design Guidance: Accommodating Bicycle and Pedestrian Travel: A Recommended Approach -- A US DOT Policy Statement Integrating Bicycling and Walking into Transportation Infrastructure on February 28, 2000.
• FHWA issued Supplementary Design Guidance for Bicycle and Pedestrian Projects on August 30, 2000.

Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) of 2005

• The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) of 2005 (Public Law 109-59, August 10, 2005), added additional programs that may be used to fund bicycle and pedestrian projects.
  • The Highway Safety Improvement Program replaced the STP safety setaside.
  • The Safe Routes to School Program was established to promote walking and bicycling near elementary and middle schools.
  • The Nonmotorized Transportation Pilot Program was established to demonstrate the extent to which bicycling and walking can carry a significant part of the transportation load, and represent a major portion of the transportation solution.
• SAFETEA-LU Section 1954 amended §217(c) by striking language that had required Federal Lands Highway Program funds to be in conjunction with other highway projects.
• SAFETEA-LU continued funding for the national bicycle and pedestrian clearinghouse, currently operating as the Pedestrian and Bicycle Information Center (PBIC).
• SAFETEA-LU Section 6001 replaced 23 U.S.C. 134 and 135 to establish the current text for metropolitan and statewide transportation planning. There are specific references to accommodate pedestrians and bicyclists, see www.fhwa.dot.gov/environment/bicycle_pedestrian/guidance/bp-guid.cfm#bp7.

Additional Guidance and Resources (under SAFETEA-LU)

• FHWA issued Flexible Funding for Highways and Transit and Funding for Bicycle & Pedestrian Programs on February 6, 2006.
• FHWA issued Clarification of FHWA's Oversight Role in Accessibility on September 12, 2006, to clarify FHWA’s role and responsibility to oversee compliance on pedestrian access required by the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504).
• FHWA issued a Framework for Considering Motorized Use on Nonmotorized Trails and Pedestrian Walkways under 23 U.S.C. §217 to provide a consistent framework for determining when to permit an exception for motorized use on nonmotorized trails and pedestrian walkways.
• FHWA posted information on Equestrian and Other Nonmotorized Use on Bicycle and Pedestrian Facilities on May 23, 2008.
• FHWA posted information on Shared Use Paths Along or Near Freeways and Bicycles on Freeways to respond to inquiries related to shared use paths and bicycles on, along, or near Interstate highways or other freeways.
• FHWA issued Snow Removal on Sidewalks Constructed with Federal Funding on August 27, 2008, to address maintaining pedestrian facilities, particularly during the winter season.
• FHWA updated FHWA Guidance - Bicycle and Pedestrian Provisions of Federal Transportation Legislation on October 22, 2008, to implement the SAFETEA-LU amendments.
• The USDOT issued the United States Department of Transportation Policy Statement on Bicycle and Pedestrian Accommodation Regulations and Recommendations on March 15, 2010.
• See FHWA's Bicycle and Pedestrian Program Guidance for links to current policy, guidance, and information resources.

See also: Revisions Needed for 23 CFR Part 652.