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FHWA Guidance: Bicycle and Pedestrian Provisions of Federal Transportation Legislation

Updated September 10, 2015

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Introduction

The purpose of this guidance is to describe Federal legislative and policy direction related to safety and accommodation for bicycling and walking. The Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991 enacted significant changes to Federal transportation policy and programs that expanded consideration of and eligibility for bicycling and walking. The Transportation Equity Act for the 21st Century (TEA-21) in 1998 and the Safe Accountable, Flexible, Efficient Transportation Equity Act: a Legacy for Users (SAFETEA-LU) in 2005 continued these provisions. The Moving Ahead for Progress in the 21st Century Act (MAP-21) of 2012 enacted some program changes but continued broad consideration and eligibility for bicycling and walking. The statutory provisions affecting bicycling and walking are codified in titles 23 and 49 of the United States Code (U.S.C.). This document describes the range of opportunities to improve conditions for bicycling and walking.

The term "facilities" used throughout this document to describe bicycle and pedestrian accommodations is intended to be interpreted broadly. "Pedestrian facilities" include pedestrian access routes and reasonable amenities, including but not limited to benches, bus shelters, lighting, and water fountains, and provisions to accommodate, enhance, or encourage walking. "Bicycle facilities" include improvements and reasonable amenities and provisions to accommodate, enhance, or encourage bicycling, including but not limited to bicycle lanes and paths, traffic control devices, parking, storage facilities, and bicycle sharing systems.

Bicycle and Pedestrian Policy

The Department of Transportation (DOT) issued the United States Department of Transportation Policy Statement on Bicycle and Pedestrian Accommodation Regulations and Recommendations on March 11, 2010, to reflect the Department's support for the development of fully integrated active transportation networks. It states:

The DOT policy is to incorporate safe and convenient walking and bicycling facilities into transportation projects. Every transportation agency, including DOT, has the responsibility to improve conditions and opportunities for walking and bicycling and to integrate walking and bicycling into their transportation systems. Because of the numerous individual and community benefits that walking and bicycling provide — including health, safety, environmental, transportation, and quality of life — transportation agencies are encouraged to go beyond minimum standards to provide safe and convenient facilities for these modes.

Improving conditions and safety for bicycling and walking creates an integrated, intermodal transportation system that provides travelers with a real choice of transportation modes. New and improved transportation facilities should be planned, designed, and constructed with this in mind. Bicyclists and pedestrians have the same origins and destinations as other transportation system users, and it is important for them to have safe and convenient access to airports, ports, ferry services, transit terminals, and other intermodal facilities as well as access to jobs, education, health care, and other essential services.

Almost every transportation improvement is an opportunity to enhance the safety and convenience of walking and bicycling. Bicycle and pedestrian needs must be given "due consideration" under Federal surface transportation law (23 U.S.C. 217(g)(1)), and this should include, at a minimum, a presumption that bicyclists, pedestrians, and persons with disabilities will be accommodated in the design of new and improved transportation facilities. In the planning, design, and operation of transportation facilities, bicyclists, pedestrians, and persons with disabilities should be included as a matter of routine, and the decision to not accommodate them should be the exception rather than the rule.

There must be exceptional circumstances for denying bicycle and pedestrian access either by prohibition or by designing highways that are incompatible with safe, convenient walking and bicycling (23 U.S.C. 217(g)(1)). Federal Highway Administration (FHWA) Design Guidance outlines exceptional circumstances in a Policy Statement and Supplementary Design Guidance. Even where circumstances are exceptional, and bicycle use and walking are either prohibited or made incompatible, States, Metropolitan Planning Organizations (MPOs), and local governments must still ensure that bicycle and pedestrian access along the corridor served by the new or improved facility is not made more difficult or impossible (23 U.S.C. 109(m) and 217(g)). For example, there may be ways to provide alternate routes on parallel surface streets that are safe and convenient, or to provide shuttle bus service on major bridge crossings.

States and MPOs also should consider how to incorporate the needs of bicyclists and pedestrians, and the transportation networks on which they depend, into emergency preparedness and evacuation plans.

At the Federal level, FHWA is working with the National Highway Traffic Safety Administration (NHTSA), the Federal Transit Administration (FTA), the Federal Railroad Administration (FRA), and other agencies to implement the bicycle and pedestrian provisions of Federal surface transportation law. State and local agencies are expected to work together cooperatively with transportation providers, user groups, and the public to develop plans, programs, and projects that reflect this vision.

Legislative Background

The following list highlights several key provisions of Federal surface transportation law relating to planning requirements, building connected networks of bicycle and pedestrian facilities, and their eligibility under Federal-aid highway programs.

Planning

Connectivity

Eligibility

Integrating Bicycle and Pedestrian Projects

There are many simple and cost-effective ways to integrate nonmotorized users into the design and operation of the transportation system by including bicycle and pedestrian accommodation as an incidental part of larger ongoing projects. Examples include:

There are usually a number of benefits to making these investments and furthering walking and bicycling as integral to surface transportation. For example, shoulders are important for motorist safety as well as providing bicyclists a place to ride. The broad eligibility of bicycle and pedestrian facilities in all the major Federal surface transportation funding programs means that incidental improvements such as these are appropriate to be included as part of larger transportation projects, except on highway facilities where bicycle and pedestrian travel is prohibited.

Funding Eligibility

Federal surface transportation law provides flexibility to States and MPOs to fund bicycle and pedestrian improvements from a wide variety of programs. All major surface transportation funding programs can be used for bicycle and pedestrian-related projects. When considering ways to improve conditions for bicycling and walking, States and MPOs are specifically encouraged to:

Exceptions

1) Transportation Purpose.

Section 217(i) of Title 23 requires that bicycle projects be "principally for transportation rather than recreation purposes", with the exception of the RTP under which projects may be for recreational use. MAP-21 revised 23 U.S.C. 133(b) (STP) and added transportation alternatives and recreational trail projects as eligible STP projects and enacted §213(b) (TAP) to allow eligibility for recreational trails projects eligible under the RTP, which conflicts with 23 U.S.C. 217(i). Effective under MAP-21, the requirement in 23 U.S.C. 217(i) does not apply to bicycle facilities using STP or TAP funds. However, Section 217(i) continues to apply to bicycle facilities using other Federal-aid highway program funds (NHPP, HSIP, CMAQ, etc.). Note that Section 217(i) makes the transportation requirement applicable only to bicycle-specific projects; it does not apply to any other trail use or transportation mode.

2) Motorized Vehicle Use.

In general, under Section 217(h), motorized vehicles are not permitted on nonmotorized trails and pedestrian walkways funded under Title 23. Exceptions to this general rule exist for maintenance vehicles; motorized wheelchairs; when State or local regulations permit, snowmobiles; and electric bicycles (weighing under 100 pounds and a top speed of less than 20 miles per hour); "and such other circumstances as the Secretary deems appropriate" (except the RTP which specifically provides funds for motorized trails). In 2008, FHWA developed a Framework for Considering Motorized Use on Nonmotorized Trails and Pedestrian Walkways to implement the "other circumstances" provision. If a project agreement specifies a nonmotorized trail, then Section 217(h) applies.

Common Eligibility Issues

Federal Share and Matching Requirements

The Federal share for bicycle and pedestrian projects funded under a Federal-aid highway program is the same as for any other projects funded under the program. Under most Federal-aid highway funding programs Federal funds contribute 80 percent of the cost of the activity or project funded and, a 20 percent State or local match of Federal funds is required (80/20 rule). (23 U.S.C. 120(b))

There are, however, important exceptions to the general 80/20 rule for programs that fund bicycle and pedestrian projects, including:

The State and/or local match for Federal-aid highway projects may be met by donations of funds, materials, services, or right-of-way. (23 U.S.C. 323) See specific funding programs for additional information on Federal share requirements. See also Federal-Aid Guidance Non-Federal Matching Requirements.

Planning

Federal surface transportation law requires that bicyclists and pedestrians be an integral part of the ongoing transportation planning process. Several key planning provisions from Title 23 are listed in the Legislative Background section of this document.

State Departments of Transportation (DOTs) and Metropolitan Planning Organizations (MPOs), which lead planning for metropolitan areas, are required to produce a Long-range Transportation Plan and a Transportation Improvement Program (TIP) or Statewide Transportation Improvement Program (STIP). The Long-range Transportation Plans must address no less than a 20-year planning horizon. The MPO Long-range Transportation Plan must be regularly updated. The TIPs/STIPs program projects that cover a period of no less than four years and must be updated periodically. Every project in the TIP/STIP must be consistent with projects, programs, and/or policies contained in the long-range plan. Additional information on the transportation planning process is available in The Transportation Planning Process: Key Issues: A Briefing Book for Transportation Decisionmakers, Officials, and Staff.

Streamlining Procedures

Bicycling, walking, and enhancing accessibility embody the goals and objectives of Federal surface transportation law: they quietly, cleanly, efficiently, and effectively serve local transportation needs, providing access to jobs, education, health care, and other essential services. They are also critical to ensuring that people can get to and from transit services. Because of that, FHWA has provided maximum opportunities for States to streamline the approval and implementation of bicycle and pedestrian projects and programs. It is unnecessary for activities such as crosswalk striping, bicycle parking installation, and bike lane marking — which usually require no additional right-of-way and cause no negative environmental impact — to have the same approval process as a multi-lane highway construction project. States and MPOs are encouraged to take advantage of the following streamlining measures and to take any additional steps they can to speed up the implementation of projects that improve conditions for bicycling and walking.

Environmental Review Streamlining

Funding

Labor

Under 23 U.S.C. 113, all laborers and mechanics employed for construction work on Federal-aid highways shall be paid wages at rates not less than those prevailing wages as determined by the Secretary of Labor under the Davis-Bacon Act. This requirement applies to all Federal-aid construction projects physically located within the right-of-way of a Federal-aid highway. It generally does not apply to projects located on highways functionally classified as local roads or rural minor collectors. Davis-Bacon does not apply to shared-use paths located outside the Federal-aid highway right-of-way. However, the requirement applies for all Transportation Alternatives Program and Safe Routes to School construction projects, even for projects not located within the right-of-way of a Federal-aid highway. See Davis Bacon memo and Transportation Alternatives Program Guidance.

Project Selection

States and MPOs may fund transportation projects that best meet their local needs and respond to local input (project selection for many of the Federal-aid funding programs is vested in the State under 23 U.S.C. 145). Thus, bicycle and pedestrian projects are eligible for funding under most Federal surface transportation funding programs, but there is no Federal requirement that such projects be funded. Similarly, State and MPO transportation plans must address bicycle and pedestrian issues, but they have discretion as to how their planning documents address the two modes.

Design References

Under 23 U.S.C. 109(c), for projects on the National Highway System (NHS), FHWA and the States may consider guides from the American Association of State Highway and Transportation Officials (AASHTO) and other publications for design standards. Under 23 U.S.C. 109(o), States establish their own design standards for projects not on the NHS. FHWA supports a holistic approach to planning and design that will routinely incorporate bicycling and walking. FHWA also supports taking a flexible approach to bicycle and pedestrian facility design as described in the memo on Bicycle and Pedestrian Facility Design Flexibility. The references below are consistent with this memo and may be used to inform design decisions.

Standards

Guidelines

Resources

State Bicycle and Pedestrian Coordinator Position

23 U.S.C. 217(d) directs each State to use a portion of its Federal surface transportation funding as may be necessary to fund a Bicycle and Pedestrian Coordinator position in its State DOT to promote and facilitate increased walking and bicycling by developing pedestrian and bicycle facilities and promoting these facilities and conducting public education and safety programs.

The position is a critical one for the development of bicycle and pedestrian policies and programs at the State level. In most States, the Coordinator is a full-time position with sufficient responsibility to coordinate effectively with various offices within the State DOT, and other State agencies and offices. The coordinator typically serves as a liaison within the agency for bicycle and pedestrian issues, a vital technical resource, and an important point of contact for local agencies and user groups seeking to improve conditions for the two modes. FHWA's January 28, 1992, Memorandum on the Designation of Bicycle and Pedestrian Coordinators within State DOTs lists the typical duties and qualities necessary for the position.

Many States have expanded upon this Coordinator position, either by employing separate bicycle and pedestrian coordinators, or by hiring additional staff and establishing larger bicycle and pedestrian offices or teams to respond to the growing demand for bicycling and walking.
FHWA looks to State Coordinators to develop connected pedestrian and bicycling networks, collect data on the use of pedestrian and bicycle facilities, and evaluate the performance of these facilities.

For more information, see: FHWA Bicycle and Pedestrian Coordinator and State Bicycle and Pedestrian Coordinator contact information.

Conclusion

Bicycling and walking are important elements to integrated, intermodal transportation systems that improve quality of life by providing access to jobs, education, health care, and other essential services. The construction of sidewalks, bicycle lanes, shared use paths, and trails; installing curb cuts and ramps; providing bicycle parking at transit; developing bike sharing systems; reducing single occupancy vehicle travel; and teaching children to ride and walk safely all contribute to our national transportation goals of safety, mobility, livability, economic growth and trade, improved health, enhancement of communities and the natural environment, and national security.

All of these activities are eligible for funding as part of the Federal Highway Program. Federal surface transportation law continues to advance the routine consideration of bicycling and walking in transportation decision-making at the State and local level, and it enables communities to encourage more people to walk and ride bicycles safely and promote livable communities.

Updated: 12/23/2015
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