This policy is specific to the provision of FEMA Public Assistance recovery grants for the Nisqually Earthquake (FEMA-DR-1361-WA) that occurred on February 28, 2001 in the State of Washington. It is intended to guide FEMA personnel in making eligibility determinations for the Public Assistance Program. This policy provides guidance in determining the eligibility of State and local building codes and standards as they apply to the repair and restoration of facilities damaged in the Nisqually earthquake.
This policy is archived and has been superseded by the policy currently in effect.
Date Signed: June 8, 2001
Response and Recovery Policy Number: 9527.2
Title: Interim Policy on Construction Codes and Standards for the Nisqually Earthquake Disaster
Purpose: This policy provides guidance in determining the eligibility of State and local building codes and standards as they apply to the repair and restoration of facilities damaged in the Nisqually earthquake.
Scope and Audience: This policy is specific to the provision of FEMA Public Assistance recovery grants for the Nisqually Earthquake (FEMA-DR-1361-WA) that occurred on February 28, 2001 in the State of Washington. It is intended to guide FEMA personnel in making eligibility determinations for the Public Assistance Program.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, ("Stafford Act") authorizes FEMA to fund the repair and restoration of eligible facilities damaged in a Presidentially declared disaster. Section 406(e) of the Stafford Act requires that the repair and restoration be "on the basis of the design of such facility as it existed immediately prior to the major disaster and in conformity with current applicable codes, specifications and standards." 44 CFR 206.226(b), which is part of the implementing regulations of the Stafford Act, provides that, to the extent a standardi requires changes to the predisaster construction of a facility when it is being repaired or restored, those changes will only be eligible for FEMA funding if the code meets specific criteria.
Since adoption of the specific criteria in 44 CFR 206.226(b) (hereafter generally referred to as "the five criteria"), FEMA has evaluated many local codes as they apply to the facts of specific projects. The determinations rendered in these cases with respect to the application and interpretation of the five criteria have served as precedent for decisions rendered in subsequent cases and subsequent disasters. These decisions, as well as legal requirements, current policy and current practices have been compiled in this document because code issues are especially prevalent in earthquake disasters.
The five criteria apply to codes that change the predisaster design of a facility. A code changes the predisaster construction of a facility if it requires that upgrades be performed in addition to repairs to return the facility to its pre-disaster design.
If FEMA determines that a code meets the five criteria and the damage to the facility meets the threshold in the code, the work and associated costs - including any eligible upgrades required by the code - will be eligible for funding as a repair under §406(e) of the Stafford Act.
If a code does not meet the criteria, repair funding will be limited to funding to bring the facility back to its pre-disaster design. Upgrades will not be eligible. Similarly, if a code meets the five criteria but the damages to the facility do not meet the threshold(s) in the code, it will only be eligible for funding to repair the facility to its predisaster design.
Upgrades on specific projects which are not eligible as repairs under 406(e) of the Stafford Act and not eligible as code upgrades may be eligible as discretionary 406 hazard mitigation.
Codes may contain various types of thresholds - often referred to as "triggers" - which, when reached, require that upgrade work be performed in conjunction with the repair of damaged elements. These thresholds are usually triggered when repair work exceeds either a certain dollar cost or a certain percentage of the building's replacement cost, or when there is a loss of a certain percentage of the building's lateral capacity. A trigger may mandate different types of upgrades. For instance, a trigger may require that the entire structural system be seismically upgraded or, in addition to upgrading the entire structure, that all systems (e.g. mechanical, electrical) be brought into conformance with current codes for new construction.
FEMA will determine the reasonableness of thresholds and will pay only for upgrade work triggered as a result of damages (not repairs).
"Predisaster design" means the size or capacity of a facility as originally designed and constructed or subsequently modified by changes or additions to the original design. It does not mean the capacity at which the facility was being used at the time of the disaster if that is different than the most recent designed capacity.
The term, "return to pre-disaster design," means to return a structure using code conforming methods and materials to a condition that is "substantially equivalent" to its pre-disaster design and structural capacity.
In conformity with applicable code
Section 406(e)(1) of the Stafford Act requires that FEMA-funded repair be to predisaster condition in conformity with current applicable codes. The Stafford Act does not require that FEMA provide funding to make an eligible building meet current code for new construction, only that FEMA must provide the assistance necessary for a subgrantee to undertake eligible repairs in a code conforming manner using current materials and workmanship.
FEMA has the obligation and authority to determine which repairs, code-mandated or otherwise, it will fund. This is true regardless of whether a building official may require that additional work be performed in order to obtain a building, occupancy or other permit.
Provisions of 44 CFR 206.226 (b)
The code must apply to the type of repair or restoration required (Codes for new construction and repair work often are different.)
Building code provisions that require changes or upgrades to a facility must be reasonably related to the performance of earthquake damage repairs in order to be recognized as eligible costs; that is, there must be a direct relationship between the upgrade work required by the code and the specific disaster damage being repaired. This is usually determined by reference to the code trigger.
If a facility is eligible for replacement, eligible funding will be based on the cost to construct the new facility in accord with current codes for new construction.
If a facility is eligible only for repair, FEMA will fund in accordance with the codes governing repair.
Code provisions that require upgrades to undamaged systems (HVAC, electrical, etc.) as a result of the earthquake damage repair work undertaken will not be eligible for FEMA funding. For those systems with damages, the eligible work on such systems will generally be limited to the repair of damage to the system itself and work in direct association and proximity to the repair of a damaged element. Work to upgrade or change the configuration of such systems to conform to certain code provisions will not be eligible. This is true regardless of whether or not a building official may require this additional work, or that the work may be needed to gain a building occupancy or other permit.
Be appropriate to the predisaster use of the facility
This provision refers to predisaster use and predisaster capacity. Eligible work, either for repair of damages or for new construction, will generally be based on the facility's actual use at the time of the disaster. In cases in which a facility was being used for a lesser purpose than that for which it was designed, restoration will only be eligible to the extent necessary to restore the immediate pre-disaster use. In cases in which the predisaster use was different from the predisaster design, the eligible work may be based on either the predisaster use or design, whichever is the lesser use or design. For example:
Case 1: a school was designed to accommodate 400 students and, at the time of the disaster, was accommodating 600 students. If the school were eligible to be replaced, it would be with a school designed to accommodate 400 students. It would not be eligible for code-required changes brought about by an increase in population. If the school did not have a swimming pool, it would not be eligible for a swimming pool even if a swimming pool were required by code. If, however, there were new requirements for increased square footage per student for the 400 students, that would be eligible for funding.
Case 2: a facility was designed as a hospital but being used as a warehouse, it will be repaired in accordance with standards applicable to a warehouse. Conversely, if the facility was designed as a warehouse but being used as a school without redesign as a school, it also will be repaired in accord with standards applicable to a warehouse.
Be found reasonable, in writing, and formally adopted and implemented by the State or local government on or before the disaster declaration date or be a legal Federal requirement applicable to the type of restoration.
"Reasonable." FEMA's authority requires it to accept only reasonable claims on recovery funds. An examination of reasonableness may involve several factors, including a determination as to the reasonableness of the code and its threshold(s) (i.e. whether they relate to the type of repair or restoration required or are technically defensible from an engineering perspective) and a determination as to the reasonableness of the method of quantifying the damages and the cost of the work. For instance, the inclusion of a very low threshold in a code that would warrant very large repairs and reconstruction may be found unreasonable. Generally, mandated upgrades to lateral force levels required for new building construction are not considered reasonable.
"Formally adopted" requires that all the requisite steps and actions be taken by the appropriate legislative body within the jurisdiction; e.g., King County or the City of Tacoma. The adopted code must be formally incorporated into the building code or the local ordinances. Design standards, guidelines, and industry practices will not be acceptable. The effective date of the code or standard must be on or before February 28, 2001.
FEMA will not recognize codes adopted by private non-profit organizations or by agencies or divisions of state or local government that are not authorized to set codes or standards applicable to both public and private facilities jurisdiction-wide.
Apply uniformly to all similar types of facilities within the jurisdiction of the owner of the facility
Code provisions must apply to similar types of facilities regardless of the entity that owns the facility. This includes all buildings, both private and public, eligible and ineligible for FEMA assistance, in the entire governmental jurisdiction or in a particular hazard zone within that jurisdiction.
The phrase "similar types of facilities" refers to the type of use (e.g. hospitals, schools), type of structural system (e.g. unreinforced masonry, steel moment frame) or geographic area of equivalent seismic risk (e.g. area of known liquefaction potential). Codes that are restricted to a narrow category of facilities are not acceptable,
In order for FEMA to find that a code and its thresholds are uniformly applied, the threshold provision(s) must be triggered by the renovation of buildings, generally, and apply to the rehabilitation of buildings damaged by causes other than earthquake. Code upgrade thresholds that only apply to upgrade work as the result of earthquake-inflicted damages will not meet the five criteria.
For any standard in effect at the time of a disaster, it must have been enforced during the time it was in effect
This provision requires that a code that was adopted prior to the disaster also have been enforced prior to the disaster. In the unlikely event that there has been no opportunity to enforce the codes, the Acting Regional Director, Region X, is authorized to determine if this criterion is substantially met.
This criterion also requires that a code have been enforced in a manner that imposes the same requirements on all projects without regard to ownership (e.g. public or private) or the funding source for the mandated repairs and upgrades. The code cannot be subject to discretionary enforcement by building officials; it must provide for uniform accountability in the event of noncompliance. FEMA may require additional documentation prior to approving funding, in order to determine whether a code has been enforced.
Because documents to obligate FEMA funds are frequently prepared and approved soon after an earthquake disaster, grant awards may be made to a subgrantee based upon previous enforcement of a code by the local jurisdiction and in reliance on its continued enforcement. If, subsequent to an award, this criterion is violated by the local jurisdiction, no further funding of upgrades in compliance with the code will be provided to that facility or to other facilities within the local jurisdiction.
Americans with Disabilities Act (ADA). ADA is an applicable Federal requirement.
If an applicant elects to perform repairs to a building that is eligible for replacement, eligible costs are limited to the less expensive of repairs or replacement. In the case of a building that is eligible for or on the National Register of Historic Properties, however, 44 CFR §206.226(d)(3) provides that if an applicable standard requires repair in a certain manner, costs associated with that code will be eligible. This exception to the cap on funding applies when there is a code that requires that the building be repaired and requires that the repair be performed in a certain manner.
Generally, state historic building codes encourage code officials to allow less intrusive alternatives to the requirements of the prevailing code. They are not prescriptive codes in that they do not establish standards that require or otherwise mandate that any particular work be performed. As a result, they generally fail to meet the five criteria.
Authorities: Section 406(e) of the Stafford Act and 44 CFR 206.226(b).
References: 63 Fed. Reg. No. 24, February 5, 1998, p.5896; FEMA 321, Public Assistance Policy Digest dated October 1998 and Appendix A dated August 2000; FEMA 322, Public Assistance Guide dated October 1999; RR Policy #9524.4 Eligibility of Facilities for Replacement under 44 CFR 206.226(d)(1) dated 9/24/98; RR Policy # 9525.5 Americans with Disabilities Act Access Requirements dated 10/26/00; RR Policy #9526.1 Hazard Mitigation Funding under Section 406 (Stafford Act) dated 8/13/98; RR Policy #9527.1 Seismic Safety - New Construction dated 1/13/00.
Originating Office: Infrastructure Division, Response and Recovery Directorate.
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Distribution: Acting Regional Director, Region X, Response and Recovery Division Director, Region X. Federal Coordinating Officer/Disaster Recovery Manager, FEMA-DR-1361-WA.
i Codes, specifications and standards are referred to as "codes" in this document.