Interim Policy on Construction Codes and Standards for the San Simeon Earthquake

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This policy is archived and has been superseded by the policy currently in effect.

 

  1. Date Published: June 25, 2004

  2. Recovery Division Policy Number: 9527.3

  3. Title: Interim Policy on Construction Codes and Standards for the San Simeon Earthquake

  4. Purpose: To prescribe policy for determining the eligibility of State and local building codes and standards as they apply to the repair and restoration of facilities damaged in the San Simeon Earthquake.

  5. Scope and Audience: This policy is specific to the San Simeon Earthquake (FEMA-DR-1505-CA) that occurred on December 22, 2003 in the State of California. It is intended to provide guidance to Federal Emergency Management Agency (FEMA) personnel in the application of 44 CFR § 206.226(d) when making eligibility determinations for the Public Assistance Program.

  6. Background: 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(d) provides that, to the extent a code or standard1 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 the following five criteria:

    1. Apply to the type of repair or restoration required (standards may be different for new construction and repair work);

    2. Be appropriate to the pre-disaster use of the facility;

    3. 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;

    4. Apply uniformly to all similar types of facilities within the jurisdiction of owner of the facility; and

    5. For any standard in effect at the time of a disaster, it must have been enforced during the time it was in effect.

 

  1. Policy:

    1. General Provisions

      1. Applicability

        1. The Five Criteria under 44 CFR § 206.226(d) apply to codes that change the predisaster construction of a facility. A code that mandates an upgrade (i.e. work required by a code that goes beyond repair to predisaster condition) in addition to repairs, changes the predisaster construction of a facility.

        2. If FEMA determines that a code meets all of the Five Criteria, the work and associated costs - including any eligible upgrades triggered by the code - will be eligible for funding as a repair under Section 406(e) of the Stafford Act.

        3. If a code does not meet the Five Criteria, code-mandated upgrades will not be eligible, and funding will be limited to repairs necessary to bring the facility back to its pre-disaster design or construction. Similarly, if a code meets all of the Five Criteria, including a determination that the thresholds are reasonable, but the damages to the facility do not meet the threshold in the code, eligible funding will be limited to repairs necessary to restore the facility to its predisaster design or construction.

        4. Code upgrades to damaged elements that are not deemed eligible pursuant to the Five Criteria and this policy, but which will enhance a facility's ability to resist similar damage in a future earthquake, may be eligible as discretionary upgrades under Section 406 hazard mitigation (see Recovery Division Policy #9526.1, Hazard Mitigation Funding Under Section 406 of the Stafford Act.)

      2. Code Thresholds

        1. 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 may be triggered when repair work exceeds a certain dollar cost or a certain percentage of the building's replacement cost (damage repair thresholds), or when the damage results in a loss of a certain portion of a building's structural capacity (capacity thresholds) as a result of a disaster.

        2. A trigger may mandate different types of upgrades. For instance, a trigger may require that the entire structural system be upgraded or, in addition to upgrading the entire structural system, that non-structural systems (e.g. mechanical, electrical) be brought into conformance with current codes for new construction.

          FEMA will determine the applicability and reasonableness of all code thresholds, pursuant to subsection 7B of this policy, and will pay only for upgrade work within the same system (i.e., structural, electrical, mechanical) as the disaster-related damages. There must, consistent with this policy, be a direct relationship between the upgrade work and the disaster damage.

 

  1. Guidance on Terms Used in this Policy.

    1. "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 [see 44 CFR § 206.201(h)]. It does not mean the capacity at which the facility was being used at the time of the disaster if that capacity is greater than the most recent designed capacity of the facility.

    2. The term, "return to pre-disaster design," means to return a facility, using code conforming methods and materials, to a condition that is substantially equivalent to its pre-disaster design and structural capacity.

    3. "Predisaster use" means the use of the facility at the time of the disaster. If an eligible facility was being used for purposes other than those for which it was designed, eligible repairs or restoration for that facility are limited to the extent necessary to restore the immediate predisaster use of the facility, but not to a greater use or capacity than the immediate pre-disaster design.


4. In conformity with applicable codes

Section 406(e)(1) of the Stafford Act requires that FEMA-funded repair, restoration, or replacement of a facility be on the basis of the predisaster design in conformity with current applicable codes, specifications, and standards. The Stafford Act does not require that FEMA provide funding to make an eligible facility meet current codes for new construction, only that FEMA must provide the assistance necessary for an applicant to undertake eligible repairs in a code- conforming manner using current materials and workmanship.

 

  1. FEMA's Authority

FEMA has the authority and responsibility under the Stafford Act and the regulations at 44 CFR Part 206 to determine which repairs, code-mandated or otherwise, are eligible for assistance. FEMA is not obligated to fund code-mandated work if the code does not meet the Five Criteria, even though such work may be required in order to obtain a building, occupancy or other permit.

  1. Provisions of 44 CFR § 206.226(d), the Five Criteria

    1. Codes must apply to the type of repair or restoration required. Codes for new construction and repair work often are different.

      1. Code provisions that require changes or upgrades to a facility must be based on a reasonable and technically supportable relationship to the elements damaged as a result of the disaster event.

      2. If FEMA determines that a facility is eligible for replacement, funding will be based on the cost to construct the new facility, based on the predisaster design of such facility, in accordance with current codes for new construction.

      3. If a facility, system or element is eligible only for repairs (structural or non-structural), funding will be based on the codes governing repair. Funding will be limited to repair of the disaster-related damage to the facility or element itself, and to eligible work that is reasonably related to repair of the damaged facility or element. Work to upgrade or change the configuration of systems that sustained disaster-related damages to conform to certain code provisions will be evaluated for reasonableness on a case-by-case basis. This is true regardless of whether or not a building official may require this additional work, or that the work may be needed to obtain a building occupancy or other permit.

      4. Code provisions that require upgrades to undamaged structural or non-structural elements or systems (i.e. mechanical, electrical) will generally not be eligible for FEMA funding. Such code provisions will be evaluated on a case-by-case basis, consistent with this policy generally, and subsection 7(B)(1) specifically.

    2. Be appropriate to the predisaster use of the facility.

Eligible work - either for repair of damages or for new construction - will be based on the facility's predisaster design or actual use at the time of the disaster. In cases where a facility was being used for a lesser purpose than that for which it was designed, restoration will be eligible only to the extent necessary to restore the immediate pre-disaster use of the facility. When predisaster use is different from predisaster design, the eligible work will, in accord with the following case examples, be based on either the predisaster use or the design of the facility at the time of the disaster, whichever is the least costly.

  1. Case 1: If a 400 pupil school constructed in 1960 based on codes then requiring a certain number of square feet per student, a cafeteria and a library, but not requiring a gymnasium or swimming pool, were eligible for replacement; eligible assistance from FEMA would be based on the work required to restore a 400 student school with a cafeteria and a library. FEMA assistance would not be available to construct a swimming pool and a gymnasium even if such facilities were required under current codes for schools.

In addition, FEMA assistance would not be available to expand the school to accommodate 600 students, even though the student population at the time of the disaster was 600 students [see 7A(3)(a)]. However, if current codes required a greater number of square feet per student, the work associated with meeting that current code would be eligible but would be based on the predisaster designed capacity of 400 students [see 7A(3)(b)].

 

  1. Case 2: If a facility designed as a school was being used as a warehouse at the time of the disaster, it would be repaired in accordance with codes applicable to a warehouse. However, if the facility was designed as a warehouse but was being used as a school without having been redesigned as a school, it also would be repaired in accordance with standards applicable to a warehouse.

  2. 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.

    • "Be found reasonable." FEMA's authority requires it to accept only reasonable claims on recovery funds. An examination of reasonableness may involve such factors as reasonableness of the code, generally, and the threshold(s); whether the thresholds relate to the type of repair or restoration required by the damage; whether they are technically defensible from an engineering perspective; and whether the method of quantifying the damages and the cost of the work is reasonable. For instance, the inclusion of a very low threshold in a code that would warrant a very large upgrade or reconstruction may be deemed unreasonable. Generally, mandated upgrades to lateral force levels required for new building construction are not considered reasonable when applied to repair work.

    • "Formally adopted" requires that all the requisite steps and actions have been taken by the appropriate legislative body or regulatory authority within the jurisdiction; e.g., State of California or the particular local government. The adopted code must be formally incorporated into the building code or the local ordinance. Design standards, guidelines, policies, and industry practices will not be acceptable. The effective date of the code must be on or before January 13, 2004, the disaster declaration date. A code will be considered implemented when approved by the appropriate legislative body of the jurisdiction and made a matter of public record as required by that body.

    • FEMA is not bound by codes adopted by private non-profit organizations when determining eligible work. FEMA also is not bound by codes adopted by agencies or divisions of State or local governments that are not authorized to set codes or standards applicable to all similar type facilities within the broad governmental jurisdiction of the state or local government, consistent with criterion (4).

  3. Apply uniformly to all similar types of facilities within the jurisdiction of the owner of the facility.

    • Code provisions must apply to all similar types and classifications of facilities regardless of the entity that owns the facility. This includes all facilities, 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 and classifications of facilities" refers to the type of use (e.g. hospitals, schools), or type of structural system (e.g. unreinforced masonry, steel moment frame).

    • In order for FEMA to find that a code and its thresholds are uniformly applied, the threshold provision(s) must generally be triggered by the repair or restoration of facilities damaged from any cause, regardless of type, as well as the renovation of buildings. Code upgrade thresholds that only apply to upgrade work as the result of earthquake-inflicted damages will be evaluated on a case-by-case basis to determine if they meet the Five Criteria including, specifically, criteria 3 and 5.

  4. For any standard in effect at the time of a disaster, it must have been enforced during the time it was in effect.

    • To be eligible codes must have been enforced prior to the disaster. In the event that there has been no opportunity to enforce the codes, the Regional Director is authorized to determine if the enforcement criterion has been substantially met.

    • This criterion also requires that a code has 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 uniformly 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.

  5. Special Considerations

    1. Americans with Disabilities Act (ADA) is an applicable Federal requirement (See Recovery Division Policy # 9525.5, Americans with Disabilities Act (ADA) Access Requirements.).

    2. Historic

      • In the case of a building listed in, or eligible for listing in, the National Register of Historic Properties, 44 CFR § 206.226(f)(3) provides that if an applicable standard requires repair in a certain manner, costs associated with that code will be eligible. This is an exception to the cap on funding which states that "eligible costs shall be limited to the less expensive of repairs or replacement," 44 CFR § 206.226(f)(2). This exception allows repair costs to exceed replacement costs 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.

 

  1. Supersession: Not applicable.

  2. Authorities: Section 406(e) of the Stafford Act and 44 CFR § 206.226.

  3. Originating Office: Recovery Division, Emergency Preparedness and Response Directorate.

  4. Signature:

        signed        
Daniel A. Craig
Director
Recovery Division
Emergency Preparedness & Response Directorate
Department of Homeland Security

  1. Distribution: Regional Directors, Regional and Headquarters Recovery Division Directors, Regional Public Assistance Officers.

1. Codes, specifications and standards are referred to as "codes" in this document.

 

Last Updated: 
06/14/2012 - 14:44
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