Lesson 3 Overview and Objectives

This lesson provides details on eligibility requirements for codes and standards and how Applicants document project compliance or certification of compliance with applicable codes and standards.

At the end of this lesson, participants will be able to:
  • Identify if applicable codes and standards meet eligibility requirements
  • Describe the necessary steps to document project compliance or show certification of compliance with all codes and standards
Meeting Code and Standard Eligibility Requirements

As we discussed in Lesson 1, there are five eligibility requirements that Federal, State, Territorial, Tribal, or local codes and standards must meet in order for the Applicant to receive Public Assistance funding. They are:

  • Applies to the type of restoration required
  • Is appropriate to the pre-disaster use of the facility
  • Is reasonable, in writing, formally adopted by the State, Territorial, Tribal, or local government, and implemented by the Applicant on or before the declaration date, OR is a legal Federal requirement
  • Applies uniformly
  • Was enforced during the time it was in effect

Let's look at each of these requirements individually.

Five check marks in a list
Applies to the Types of Restoration Required (1 of 3)

Codes and standards must apply to the type of restoration required. Codes and standards for new construction are often different than codes and standards for repair work.

If FEMA determines a facility is eligible for replacement, compliance with current codes and standards for new construction is eligible. However, if FEMA determines a facility is not eligible for replacement, only code required upgrades applicable to repairs are eligible.

A code or standard may include a trigger that requires:

  • Upgrades to all structural components
  • In addition to upgrading all structural components, bringing the non-structural components into conformance with current codes and standards for new construction
A carpenter makes repairs on a classroom that was flooded at the Central Middle School in downtown Findlay, Ohio. Blackboard banner: Your mind is like a parachute, it works best when open.
Applies to the Types of Restoration Required (2 of 3)

If an upgrade to an entire structural or non-structural system within a building is triggered, the upgrade is only eligible if it is necessary to repair the damaged element.

To determine if an update is reasonable, FEMA evaluates the type and extent of damage in relation to the upgrade requested.

Worker laying brick
Applies to the Types of Restoration Required (3 of 3)

Example of Code and Standard Not Applicable to Restoration Type

An Applicant requests Public Assistance funding for the repair of a damaged building and the construction of a parking garage. The Applicant states that while there was no parking garage prior to the incident, zoning codes and other local ordinances require one. Because parking improvements have no relationship to the disaster-related repairs, they do not apply to the type of restoration required and are not eligible.

Similarly, if a code and standard that applies to new construction or the rehabilitation of an entire road requires the construction of paved shoulders, drainage swales, and berms, the construction of these improvements is not eligible for a project involving repairs to discrete damaged portions of the road shoulders.

Construction workers pouring concrete
Appropriate to Pre-Disaster Use

Codes and standards must be appropriate to the pre-disaster use of the facility. FEMA determines the eligibility of code required upgrades based on the facility's pre-disaster design or actual use at the time of the disaster.

If the facility is serving an alternate function at the time of the incident, FEMA will evaluate the cost of upgrades to the pre-disaster use of the facility and compare that to the cost of the alternate use of the facility. The eligible upgrade is whichever is least costly.

Boarded up law offices damaged by Hurricane Katrina
Appropriate to Pre-Disaster Use: Example of Non-Compliance

The following is an example of a code or standard that is NOT reasonable:

The original design of a facility was a warehouse; however, the Applicant was using the facility as a classroom before the incident. Restoring the facility as a classroom in conformance with classroom codes and standards would not be eligible if it would be more costly than restoring the facility as a warehouse in accordance with code and standards applicable to a warehouse.

The interior of a warehouse
Must be Reasonable

Codes and standards must be reasonable. To determine reasonableness, FEMA:

  • Examines the general reasonableness of the code and standard and the trigger for application of the code and standard
  • Determines whether the upgrade and trigger relate to the type of restoration required by the damage and whether the upgrade and trigger are justified based on the extent of damage
  • Considers whether the upgrade and the trigger are technically defensible from an engineering perspective
  • Determines whether the cost of the upgrade is reasonable
FEMA may determine a very large upgrade based on a very low trigger to be unreasonable.
FEMA Public Assistance worker inspects flood damage in Texas
Must Be Reasonable: Example of Non-Compliance

Installation of a code and standard required new sprinkler system throughout a building is eligible if that building is replaced. However, installation of that sprinkler system is not eligible if the eligible work only involved repair of the building, even if required by the code and standard, unless it is reasonable based on the eligible repair.

Sprinkler system
Written, Formally Adopted, and Implemented (1 of 2)

Codes and standards must be in writing, formally adopted by the State, Territorial, Tribal, or local government, and implemented by the Applicant on or before the declaration date, OR be a legal Federal requirement, such as a requirement of the Americans with Disabilities Act. An appropriate legislative body or regulatory authority within the jurisdiction must:

  • Approve the code and standard
  • Make it a matter of public record
  • Formally incorporate it into the building code or other applicable ordinance
Project Specialist reviews reports following inspections
Written, Formally Adopted, and Implemented (2 of 2)

The code and standard must apply to the facility in question. For example, if a State has jurisdiction over a particular type of work and formally adopts a code and standard related to that work, a Tribal or local government in that State does not necessarily have had to formally adopt the code and standard for it to apply to its facility. The Tribal or local government meets the above requirement as long as it shows that it implements the code and standard consistently.

FEMA does not recognize codes and standards adopted by a private non-profit organization specifically for its facilities when determining whether compliance with codes and standards is eligible. FEMA also does not accept codes and standards adopted by agencies or divisions of State, Territorial, or local governments that are not authorized to set codes and standards within the broad governmental jurisdiction of the State, Territorial, or local government.

Written, Formally Adopted, and Implemented: Example of Non-Compliance

The following is an example of a code or standard that is NOT written, formally adopted, and implemented or a federal requirement:

FEMA approves funding to replace a culvert that was washed out by a flood. The State Natural Resources Department denies the Applicant's permit application for replacing the culvert, and recommends the Applicant construct a bridge instead. The decision of the permitting officials is discretionary and not based on a written and formally adopted code and standard; therefore, the bridge construction is not eligible.

Site of a former bridge that was destroyed due to severe flooding
Applies Uniformly (1 of 2)

Codes and standards must apply uniformly to all similar types of facilities, whether private or public, eligible or ineligible, in the Applicant's jurisdiction or (if applicable) in a particular hazard zone within its jurisdiction.

For FEMA to find that a code and standard and its triggers are uniformly applied, the code and standard must meet all of the following conditions. The code and standard must:

  • Provide for uniform accountability in the event of noncompliance
  • Not be subject to discretionary enforcement by public officials
  • Not allow for selective application
Applies Uniformly (2 of 2)

A code and standard must meet three tests to demonstrate that it is not selectively applied:

  • The upgrade is generally triggered regardless of the cause of damage and is also triggered for renovations or improvements
  • The code and standard is applied regardless of the source of funding for the work
  • The code and standard is not applied selectively based on the availability of funds
Applies Uniformly: Example of Non-Compliance

A local jurisdiction has authority over all facilities, both public and private. A statewide code and standard imposes seismic retrofit requirements for all public buildings, but not for privately owned buildings. The seismic retrofitting is not eligible as it does not apply uniformly to all similar types of facilities within the Applicant's jurisdiction.

Earthquake damage
Must Be Enforced

The code and standard must have been enforced during the time it was in effect. FEMA may provide public assistance funding for costs related to an upgrade based on confirmation of previous enforcement and in reliance on continued enforcement. If the local jurisdiction subsequently violates this criterion, no further work to comply with the code and standard is eligible within the local jurisdiction.

If FEMA determines a jurisdiction has had no reasonable opportunity to enforce the code and standard, the upgrade may be eligible. A reasonable opportunity to enforce may be lacking when a code and standard is new or when a facility affected by the code and standard has not been damaged during the time the code and standard was in effect.

Must Be Enforced: Example of Non-Compliance

The following is an example of a code or standard that was NOT enforced during the time it was in effect:

An Applicant requests funding to upgrade the foundation of several damaged trailers based on a code requirement applying to repairs to trailers and installation of new trailers. The Applicant installed several new trailers after the incident and did not use the code and standard required foundation. The upgrades to the foundation of the damaged trailers are not eligible because the Applicant did not enforce the standard.

Example: Hazard County Bridge

The following is an example of the application of Applicant adopted and uniformly practiced codes and standards.

On a declared disaster, Hazard County experienced significant flooding. As a result of the event, a wooden one-lane bridge washed away during the event. As the bridge was destroyed, a new bridge needed to be constructed as a replacement. The County requested replacement of the bridge with a two-lane concrete bridge.

The replacement of the one lane wooden bridge with a two-lane concrete bridge is a repair above and beyond the pre-existing condition in both design and capacity. However, in accordance with the five codes and standards criteria, the County was able to show that the repair applies to the type of restoration required, and is appropriate to the pre-disaster use of the facility.

The county was also able to show that in 2008, the County Board adopted resolution that all single lane or two lane wooden bridges would be replaced with two lane concrete bridges once unstable or in a status of requiring replacement. They were also able to document that the adopted code and standard has been applied to all bridges in the jurisdiction since resolution adoption in 2008, and has been enforced as a practice since implementation.

Certification and Documentation of Compliance

Applicants must provide proof of compliance with applicable codes and standards. Acceptable forms of proof include, but are not limited to:

  • A valid certificate of occupancy from the local building department, that supports that the project was constructed or repaired as designed
  • Elevation certificates
  • Letters of compliance
  • Upon completion of the Project, if the Public Assistance Minimum Standards policy is triggered, a written certification by a registered design professional that the natural hazard-resistant design elements comply with International Building Code, International Existing Building Code, and International Residential Code requirements

Non-compliance may result in denial or de-obligation of public assistance funding for the facility. Therefore, the Applicant should work with its local building department and any other authorities having jurisdiction to ensure compliance with this and other Federal, State, Territorial, Tribal, and local government code and standard requirements.

Lesson 3 Summary

In this lesson, we:

  • Identified if applicable codes and standards meet eligibility requirements.
  • Described the necessary steps to document project compliance or show certification of compliance with all codes and standards.

In the next lesson, we'll discuss other Federal requirements that apply to codes and standards.

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