[GHM-0062](http://www.hud.gov/offices/adm/hudclips/lops/GHM-0062LOPS.doc)

Technical Corrections Act of 1993

Legal Opinion: GHM-0098

Index: 3.260

Subject: Technical Corrections Act of 1993

January 10, 1994

MEMORANDUM FOR: James F. Lischer, Assistant General Counsel,

Legislation Division, GLL

THROUGH: John J. Daly, Associate General Counsel,

Office of Insured Housing and Finance, GH

FROM: David R. Cooper, Assistant General Counsel,

Multifamily Mortgage Division, GHM

SUBJECT: S. 1769 - \"Technical Corrections Act of 1993\"

You have requested our review of a proposed \"enrolled bill

letter\" to be signed by the Secretary and delivered to the

Director of Management and Budget. The letter states that the

Department does not object to any of the four provisions set out

in S. 1769 the \"Technical Corrections Act of 1993.\" As part of

your clearance process, you have requested this Division and the

Office of Housing to review and approve the letter. We do not

have any comments or objections relative to the draft of the

\"enrolled bill letter.\"

The Office of Housing, in turn, has requested that as part

of our review of the proposed letter we answer the following two

questions and direct our conclusions to you:

1\. Will New York City have to comply with the sprinkler

requirement until regulations are finalized as to what is an

\"equivalent level of safety?\"

2\. If such a level cannot be found will the sprinkler

requirement continue to apply?

Congress amended the \"Federal Fire Prevention and Control

Act of 1974\" (the \"1974 Act, as amended\") with the passage of the

\"Fire Administration Authorization Act of 1992\" (\"1992 Fire

Act\"), which was enacted into law on October 26, 1992. Section

31(c)(2)(i), as added to the 1974 Act by the Amendment, sets out

the following requirement for all newly constructed federally

assisted multifamily properties of four or more stories:

Housing assistance may not be used in connection with

any newly constructed multifamily property, unless

after the new construction the multifamily property is

protected by an automatic sprinkler system and hard-

wired smoke detectors.

The \"1992 Fire Act\" in adding Section 31(b) to the 1974 Act,

provides that no federal money can be used for the construction

or purchase of a federal employee office building of six or more

stories unless \"the building is protected by an automatic

sprinkler system or equivalent level of safety.\" The statutory

exception from automatic sprinkler systems for federal employee

office buildings is in those situations when it can be shown that

the building has a fire prevention system that provides an

\"equivalent level of safety.\" The \"Technical Corrections Act of

1993\" has extended to multifamily rental properties the

\"equivalent level of safety\" exception from the automatic

sprinkler requirement.

Section 31(a)(3) of the \"1974 Act, as amended\" provides a

preliminary definition of \"equivalent level of safety and reads

as follows:

The term \`equivalent level of safety\' means an

alternative design or system (which may include

automatic sprinkler systems), based upon fire

protection engineering analysis, which achieves a level

of safety equal to or greater than that provided by

automatic sprinkler systems.

We point out that Congress did not consider the preliminary

definition of \"equivalent level of safety\" provided in section

31(a)(3) to be the final definition. Section 31(d) of the \"1974

Act, as amended\" states:

REGULATIONS.\--The Administrator of General Services, in

cooperation with the United States Fire Administration,

the National Institute of Standards and Technology, and

the Department of Defense, within 2 years after the

date of enactment of this section, shall promulgate

regulations to further define the term \`equivalent

level of safety,\' and shall, to the extent practicable,

base those regulations on nationally recognized codes.

In the \"1974 Act, as amended\" the term \"equivalent level of

safety\" was only used in conjunction with section 31(b) which

covered federal employee office buildings. The term was not

originally used within section 31(c), which was the subsection

covering rental housing.

We believe that section 31(a)(3) of the \"1974 Act, as

amended,\" is not self-explanatory and, consequently, can only be

read in combination with section 31(d), which provides the

mechanism that will define the term \"equivalent level of safety\"

that is used in section 31(a)(3). Section 31(a)(3) merely makes

reference to an alternative system that \"based upon fire

protection engineering analysis\" is equivalent to automatic

sprinklers without stating any qualification standards or

guidelines for the individual or organization rendering this

engineering report. We also point out that Section 106(b) of the

Fire Administration Authorization Act of 1992 states that:

\"Subsection (b) of section 31 of the Federal Fire Prevention and

Control Act of 1974, added by subsection (a) of this Section

\[section 106\], shall take effect two years after the date of

enactment of this Act.\" Congress has delayed the implementation

of subsection (b) covering federal office buildings until after

the date set in section 31(d) for GSA to publish a regulation

defining exactly what constitutes an \"equivalent level of safety\"

and presumably setting out the qualifications for those who are

qualified to render a fire protection engineering analysis.

It is our opinion that New York City will have to comply

with the automatic sprinkler system requirement for federally

assisted housing as set out in section 31(c) of the \"1992 Fire

Act\" until such time as the General Services Administration

issues regulations fully defining the term \"equivalent level of

safety.\"

If you have any questions concerning this matter, please

contact Edward M. Ferguson at 708-4107.