37.41  Construction of transportation facilities by public entities.


A public entity shall construct any new facility to be used in providing designated public transportation services so that the facility is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. This requirement also applies to the construction of a new station for use in intercity or commuter rail transportation.  For purposes of this section, a facility or station is "new" if its construction begins (i.e., issuance of notice to proceed) after January 25, 1992, or, in the case of intercity or commuter rail stations, after [Insert effective date of this Part]
Section 37.41 contains the general requirement that all new facilities constructed after January 25, 1992, be accessible to and usable by individuals with disabilities.  This provision tracks the statute closely, and is analogous to a provision in the DOJ regulations for private entities.  Section 226 of the ADA provides little discretion in this requirement.

The requirement is keyed to construction which "begins" after January 25, 1992.  The regulation defines "begin" to mean when a notice to proceed order has been issued.  This term has a standard meaning in the construction industry, as an instruction to the contractor to proceed with the work.
Questions have been raised concerning which standards apply before January 26, 1992.  There are Federal requirements that apply to all recipients of federal money, depending on the circumstances.

First, if an entity is a Federal recipient and uses Federal dollars to construct the facility, regulations implementing section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), require the recipient to comply with the Uniform Federal Accessibility Standards.

Second, since the Civil Rights Restoration Act of 1987 (Pub.  L. 100-259), an operation of a recipient of federal funds would also have to comply with section 504, even though the activity was not paid for with Federal funds.  Thus, the Uniform Federal Accessibility Standards would apply to this construction as well.

As mentioned above, the Department intends, in the period before January 26, 1991, to view compliance with section 504 in light of compliance with ADA requirements (this point applies to alterations as well as new construction).  Consequently, in reviewing requests for grants, contract approvals, exemptions, etc,  (whether with respect to ongoing projects or new, experimental, or one-time efforts), the Department will, as a policy matter, seek to ensure compliance with ADA standards.