Revisions Needed for 23 CFR Part 652

FHWA Summary: March 29, 2010, revised October 2, 2012.

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 Much of 23 CFR 652 is obsolete because of subsequent law and policy changes. This document explains which sections are obsolete and superseded.

Part 652 implemented Section 217 of Title 23 of the United States Code (23 U.S.C. 217), as it was in effect in March 1984. Section 217, currently titled "Bicycle Transportation and Pedestrian Walkways", was originally enacted on August 13, 1973, and has been revised several times since. Since 1984, 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. See Bicycle Transportation and Pedestrian Walkways Legislative and Policy History for additional information.

Because Federal law supersedes Federal regulation, much of Part 652 is obsolete. The primary sections of 23 CFR 652 that are obsolete are:

1. Section 652.5. See the United States Department of Transportation Policy Statement on Bicycle and Pedestrian Accommodation Regulations and Recommendations, which implements USDOT policy under the current statutory authority, including 23 U.S.C. 217.
2. Section 652.7(b)(2) does not include Metropolitan Planning Organizations (MPOs) in the list of initiating or supporting agencies. See FHWA Guidance - Bicycle and Pedestrian Provisions of Federal Transportation Legislation: Planning, which implements FHWA policy under the authority of 23 U.S.C. 134, 135, and 217.
3. Section 652.7(b)(4) calls for a benefit/cost consideration, which is no longer required. There is no legislative authority under 23 U.S.C. 217 for this requirement. The legislative history indicates that bicycle transportation facilities and pedestrian walkways are broadly eligible for Federal-aid highway program funds under several funding programs. Bicycle and pedestrian transportation must be considered in the metropolitan and statewide transportation planning processes.
4. Section 652.9(a) refers to Federal-aid financing at 100 percent Federal share. This was superseded in 23 U.S.C. 217(f).
5. Section 652.9(a) has an obsolete limitation on the amount of Federal-aid highway program funding available for bicycle and pedestrian project costs of $45 million nationwide and $4.5 million per State. This was superseded in ISTEA and subsequent legislation, which provided broad eligibility for bicycle and pedestrian projects. See Legislative and Policy History.
6. Section 652.11 is superseded by subsequent planning legislation and regulation. See FHWA Guidance - Bicycle and Pedestrian Provisions of Federal Transportation Legislation: Planning, which implements FHWA policy under the authority of 23 U.S.C. 134, 135, and 217.
7. Section 652.13 cites the American Association of State Highway and Transportation Officials (AASHTO) Guide for Development of New Bicycle Facilities, 1981 ("or equivalent" guides) as being acceptable standards. This Guide has been superseded by:
   • Accessibility guidelines from the US Access Board: www.access-board.gov.
   • AASHTO Guide for the Development of Bicycle Facilities, 2012.
   • AASHTO Guide for the Planning, Design, and Operation of Pedestrian Facilities, 2004.
   • The AASHTO publications are available for sale from the American Association of State Highway and Transportation Officials (AASHTO).

See Bicycle Transportation and Pedestrian Walkways Legislative and Policy History for additional information.