[Code of Federal Regulations]
[Title 49, Volume 1]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR37.43]

[Page 376-377]
 
                        TITLE 49--TRANSPORTATION
 
          SUBTITLE A--OFFICE OF THE SECRETARY OF TRANSPORTATION
 
PART 37--TRANSPORTATION SERVICES FOR INDIVIDUALS WITH DISABILITIES (ADA)--Table of Contents
 
                  Subpart C--Transportation Facilities
 
Sec. 37.43  Alteration of transportation facilities by public entities.

    (a)(1) When a public entity alters an existing facility or a part of 
an existing facility used in providing designated public transportation 
services in a way that affects or could affect the usability of the 
facility or part of the facility, the entity shall make the alterations 
(or ensure that the alterations are made) in such a manner, to the 
maximum extent feasible, that the altered portions of the facility are 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs, upon the completion of such 
alterations.
    (2) When a public entity undertakes an alteration that affects or 
could affect the usability of or access to an area of a facility 
containing a primary function, the entity shall make the alteration in 
such a manner that, to the maximum extent feasible, the path of travel 
to the altered area and the bathrooms, telephones, and drinking 
fountains serving the altered area are readily accessible to and usable 
by individuals with disabilities, including individuals who use 
wheelchairs, upon completion of the alterations. Provided, that 
alterations to the path of travel, drinking fountains, telephones and 
bathrooms are not required to be made readily accessible to and usable 
by individuals with disabilities, including individuals who use 
wheelchairs, if the cost and scope of doing so would be 
disproportionate.
    (3) The requirements of this paragraph also apply to the alteration 
of existing intercity or commuter rail stations by the responsible 
person for, owner of, or person in control of the station.
    (4) The requirements of this section apply to any alteration which 
begins (i.e., issuance of notice to proceed or work order, as 
applicable) after January 25, 1992, or, in the case of intercity and 
commuter rail stations, after October 7, 1991.
    (b) As used in this section, the phrase to the maximum extent 
feasible applies to the occasional case where the nature of an existing 
facility makes it impossible to comply fully with applicable 
accessibility standards through a planned alteration. In these 
circumstances, the entity shall provide the maximum physical 
accessibility feasible. Any altered features of the facility or portion 
of the facility that can be made accessible shall be made accessible. If 
providing accessibility to certain individuals with disabilities (e.g., 
those who use wheelchairs) would not be feasible, the facility shall be 
made accessible to individuals with other types of disabilities (e.g., 
those who use crutches, those who have impaired vision or hearing, or 
those who have other impairments).
    (c) As used in this section, a primary function is a major activity 
for which the facility is intended. Areas of transportation facilities 
that involve primary functions include, but are not

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necessarily limited to, ticket purchase and collection areas, passenger 
waiting areas, train or bus platforms, baggage checking and return areas 
and employment areas (except those involving non-occupiable spaces 
accessed only by ladders, catwalks, crawl spaces, very narrow 
passageways, or freight (non-passenger) elevators which are frequented 
only by repair personnel).
    (d) As used in this section, a ``path of travel'' includes a 
continuous, unobstructed way of pedestrian passage by means of which the 
altered area may be approached, entered, and exited, and which connects 
the altered area with an exterior approach (including sidewalks, parking 
areas, and streets), an entrance to the facility, and other parts of the 
facility. The term also includes the restrooms, telephones, and drinking 
fountains serving the altered area. An accessible path of travel may 
include walks and sidewalks, curb ramps and other interior or exterior 
pedestrian ramps, clear floor paths through corridors, waiting areas, 
concourses, and other improved areas, parking access aisles, elevators 
and lifts, bridges, tunnels, or other passageways between platforms, or 
a combination of these and other elements.
    (e)(1) Alterations made to provide an accessible path of travel to 
the altered area will be deemed disproportionate to the overall 
alteration when the cost exceeds 20 percent of the cost of the 
alteration to the primary function area (without regard to the costs of 
accessibility modifications).
    (2) Costs that may be counted as expenditures required to provide an 
accessible path of travel include:
    (i) Costs associated with providing an accessible entrance and an 
accessible route to the altered area (e.g., widening doorways and 
installing ramps);
    (ii) Costs associated with making restrooms accessible (e.g., grab 
bars, enlarged toilet stalls, accessible faucet controls);
    (iii) Costs associated with providing accessible telephones (e.g., 
relocation of phones to an accessible height, installation of 
amplification devices or TDDs);
    (iv) Costs associated with relocating an inaccessible drinking 
fountain.
    (f)(1) When the cost of alterations necessary to make a path of 
travel to the altered area fully accessible is disproportionate to the 
cost of the overall alteration, then such areas shall be made accessible 
to the maximum extent without resulting in disproportionate costs;
    (2) In this situation, the public entity should give priority to 
accessible elements that will provide the greatest access, in the 
following order:
    (i) An accessible entrance;
    (ii) An accessible route to the altered area;
    (iii) At least one accessible restroom for each sex or a single 
unisex restroom (where there are one or more restrooms);
    (iv) Accessible telephones;
    (v) Accessible drinking fountains;
    (vi) When possible, other accessible elements (e.g., parking, 
storage, alarms).
    (g) If a public entity performs a series of small alterations to the 
area served by a single path of travel rather than making the 
alterations as part of a single undertaking, it shall nonetheless be 
responsible for providing an accessible path of travel.
    (h)(1) If an area containing a primary function has been altered 
without providing an accessible path of travel to that area, and 
subsequent alterations of that area, or a different area on the same 
path of travel, are undertaken within three years of the original 
alteration, the total cost of alteration to the primary function areas 
on that path of travel during the preceding three year period shall be 
considered in determining whether the cost of making that path of travel 
is disproportionate;
    (2) For the first three years after January 26, 1992, only 
alterations undertaken between that date and the date of the alteration 
at issue shall be considered in determining if the cost of providing 
accessible features is disproportionate to the overall cost of the 
alteration.
    (3) Only alterations undertaken after January 26, 1992, shall be 
considered in determining if the cost of providing an accessible path of 
travel is disproportionate to the overall cost of the alteration.

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