49 C.F.R. § 37.43

Alteration of transportation facilities by public entities

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(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 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.

Notes of Decisions

Cited in 15 cases (4 in the last 5 years), 2009–2024 · leading case: Disabled in Action v. Southeastern Pennsylvania Transportation Authority

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Disabled in Action v. Southeastern Pennsylvania Transportation Authority (2011) ca3 · cites it 12× “The implementing regulations set forth in 49 C.F.R. § 37.43 (a)(1) echo the requirements of 42 U.”

Hip Heightened Independence an v. Port Authority of New York and (2012) ca3 · cites it 5× “§ 12147 (a) and 49 C.F.R. § 37.43 (a)(1), as well as in the “technical infeasibility” guideline, ADAAG § 4.”

Woods v. Centro of Oneida, Inc. (2024) ca2 · cites it 2× “; see also 49 C.F.R. § 37.43 (a)(1) (implementing first sentence of section 12147(a)).”

Bronx Independent Living v. Metropolitan Transp. (2019) ilsd · cites it 3× “Plaintiffs-two non-profit advocacy organizations and two disabled individuals who represent a class *326 of similarly situated individuals-move for summary judgment seeking a determination that the replacement of the stairways at the Middletown Road Subway Station in the Bronx…”

National Railroad Passenger Corp. v. Arch Specialty Insurance (2015) nysd “49 C.F.R. § 37.43 (a)(1). The plain language of this provision allows alterations only to “part of an existing fácility.”

National Railroad Passenger Corp. v. Aspen Specialty Insurance Co. (2016) ca2 “See 49 C.F.R. § 37.43 (a)(1). Assuming, as the district court did, that the FRA has the power to regulate Amtrak, granting summary judgment in the insurers’ favor was premature.”

Forsee v. Metropolitan Transportation Authority (2020) nysd · cites it 2× “In Middletown Road, plaintiffs assert (as they do here) that the renovations at issue there are governed by 49 C.F.R. § 37.43 (a)(1), which does not expressly provide for costs to be considered when analyzing an “alteration.”

Disabled in Action v. Southeastern Pennsylvania Transportation Authority (2009) paed · cites it 2× “” 49 C.F.R. § 37.43 (b). Thus, contrary to what one might consider-especially during times of inescapable economic challenges in the public and private sectors-under the governing legislation and related regulations, the only considerations to be made when determining whether an…”

Nat'l Railroad Passenger Corp. v. Aspen Specialty Ins. Co. (2016) ca2 “See 49 C.F.R. § 37.43 (a)(1). Assuming, as the district court did, that the FRA has the power to regulate Amtrak, granting summary judgment in the insurers’ favor was premature.”

Guadagnini v. SamTrans (2021) cand “3 4 49 C.F.R. § 37.43 (a) (emphasis added); see 42 U.”

Williams v. Chicago Transit Authority (2018) ilnd “§ 12147(a); 49 C.F.R. § 37.43 , but Williams does not allege that the CTA has made any alterations to the State and Lake Station that would have triggered an obligation to install elevators.”

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