37.43 Alteration of transportation facilities by public entity.
This section sets out the accessibility requirements that apply
when a public entity undertakes an alteration of an existing facility.
In general, the section requires that any alteration, to the maximum extent
feasible, results in the altered area being accessible to and usable by individuals
with disabilities, including persons who use wheelchairs. The provisions
follow closely those adopted by the DOJ, in its regulations implementing title
III of the ADA.
- 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.
- 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.
- 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.
- 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 July 26, 1993.
The section requires specific activities whenever an alteration
of an existing facility is undertaken.
(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).
First, if the alteration is made to a primary function area, (or access
to an area containing a primary function), the entity shall make the alteration
in such a way as to ensure that the path of travel to the altered area and
the restrooms, telephones and drinking fountains servicing the altered area
are readily accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs.
Second, alterations to drinking fountains, telephones, and restrooms do not
have to be completed if the cost and scope of making them accessible is disproportionate.
Third, the requirement goes into effect for alterations begun after January
Fourth, the term "maximum extent feasible" means that all changes
that are possible must be made. The requirement to make changes to
the maximum extent feasible derives from clear legislative history.
The Senate Report states --
The phrase "to the maximum extent feasible" has been included
to allow for the occasional case in which the nature of an existing facility
is such as to make it virtually impossible to renovate the building in a manner
that results in its being entirely accessible to and usable by individuals
with disabilities. In all such cases, however, the alteration should
provide the maximum amount of physical accessibility feasible.
Thus, for example the term "to the maximum extent feasible" should
be construed as not requiring entities to make building alterations that have
little likelihood of being accomplished without removing or altering a load-bearing
structural member unless the load-bearing structural member is otherwise
being removed or altered as part of the alteration. (S.Rept. 101-116, at
(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, vary narrow passageways, or freight [non-passenger] elevators
which are frequented only by repair personnel).
Fifth, primary function means a major activity for which the facility
is intended. Primary function areas include waiting areas, ticket purchase
and collection areas, train or bus platforms, baggage checking and return
areas, and employment areas (with some exceptions stated in the rule, for
areas used by service personnel that are very difficult to access).
(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.
Sixth, "path of travel" means 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
and includes restrooms, telephones, and drinking fountains serving the altered
area. If changes to the path of travel are disproportionate, then only
those changes which are not disproportionate are to be completed.
- 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).
- 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
(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
(iv) Costs associated with relocating an inaccessible drinking fountain.
- 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;
- 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;
(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.
(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).
- 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;
- 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.
- 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.
Seven, the final rule specifies that costs exceeding 20 percent
would be disproportionate. This is consistent with the DOJ. In
determining costs, the Department intends costs to be based on changes to
the passenger service area that is scheduled for alteration.
Finally, the Department has defined the term "begin", in the
context of begin an alteration that is subject to the alteration provision
to mean when a notice to proceed or work order is issued. Two terms
are used (instead of only notice to proceed in the context of new construction)
because many alterations may be carried out by the entity itself, in which
case the only triggering event would be a work order or similar authorization
In looking at facility concepts like "disproportionality" and
"to the maximum extent feasible," the Department will consider any expenses
related to accessibility for passengers. It is not relevant to consider
non-passenger related improvements (e.g., installing a new track bed) or
to permit "gold-plating" (attributing to accessibility costs the expense
of non-related improvements, such as charging to accessibility costs the
price of a whole new door, when only adding a new handle to the old door
was needed for accessibility).§37.47 Key Stations in Light and
Rapid Rail Systems