LEGAL OPINION - U.S. DEPARTMENT OF TRANSPORTATION OFFICE of GENERAL COUNSEL on 49 CFR 37.43(a)

Conclusion

There is a clear distinction between 49 CFR § 37.43(a)(1) and (a)(2). Section 37.43(a)(1) applies to general alterations of existing facilities that could affect the usability of the facility, and for general alterations, cost is not a factor. Where an element of a path of travel (such as a sidewalk, pedestrian ramp, passageway between platforms, staircase, escalator, etc.) in an existing facility is itself the subject of alteration and is therefore subject to 49 CFR § 37.43(a)(1), the public entity is required to make the altered portion (i.e., the element of the path of travel) readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, without regard to cost or cost disproportionality, to the maximum extent feasible.