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 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.