[Federal Register Volume 69, Number 68 (Thursday, April 8, 2004)]
[Rules and Regulations]
[Pages 18489-18496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7980]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[OPPT-2003-0061; FRL-7341-5]
RIN 2070-AD31
Lead; Notification Requirements for Lead-Based Paint Abatement
Activities and Training
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Under the authority of section 407 of the Toxic Substances
Control Act (TSCA), as amended by the Residential Lead-Based Paint
Hazard Reduction Act of 1992, also known as ``Title X (ten),'' EPA is
issuing this final rule to establish notification procedures for
certified lead abatement professionals conducting lead-based paint
abatement activities, and accredited training programs providing lead-
based paint activities courses. Specifically, this rule establishes the
procedures that must be used to provide notification to EPA prior to
the commencement of lead-based paint abatement activities. This rule
also establishes provisions that require accredited training programs
to notify EPA under the following conditions: Prior to providing
initial or refresher lead-based paint activities training courses; and
following completion of lead-based paint activities training courses.
These notification requirements are necessary to provide EPA compliance
monitoring and enforcement personnel with information necessary to
track lead-based paint abatement and training activities, and to
prioritize compliance inspections. This rule will help to prevent lead
poisoning in children under the age of 6 by supporting EPA's
implementation of the mandate in Title X to ensure that lead
professionals involved in inspecting, assessing or removing lead-based
paint, dust or soil are trained and certified to conduct these
activities. This rule applies only in States and Tribal areas that do
not have authorized programs pursuant to 40 CFR 745.324.
DATES: This final rule is effective on May 10, 2004.
FOR FURTHER INFORMATION CONTACT: For general information contact:
Barbara Cunningham, Director, Environmental Assistance Division
(7408M), Office of Pollution Prevention and Toxics, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
telephone number: (202) 554-1404; e-mail address: [email protected].
For technical information contact: Mike Wilson, National Program
Chemicals Division (7404T), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: (202) 566-0521; e-mail address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
You may be potentially affected by this action if you operate a
training program required to be accredited under 40 CFR 745.225, or if
you are a firm which must be certified to conduct lead-based paint
abatement activities in accordance with 40 CFR 745.226. Specifically,
the procedure for notification of the commencement of lead-based paint
abatement activities applies to the certified firm conducting lead-
based paint abatement activities. The procedure for notification of
lead-based paint activities training courses applies to the training
manager of an accredited training program. This rule applies only in
States and Indian Tribes that do not have authorized programs pursuant
to 40 CFR 745.324. For further information regarding the authorization
status of States and Indian Tribes contact the National Lead
Information Center (NLIC) at 1-800-424-LEAD(5323). Potentially affected
categories and entities may include, but are not limited to:
Lead abatement professionals (NAICS 562910);
firms and supervisors engaged in lead-based paint activities
Training programs (NAICS 611519); training
programs providing training services in lead-based paint activities
This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in this unit could also be
affected. The North American Industrial Classification System (NAICS)
codes have been provided to assist you and others in determining
whether or not this action applies to certain entities. To determine
whether you or your business is affected by this action, you should
carefully examine the applicability provisions in 40 CFR part 745. If
you have any questions regarding the applicability of this action to a
particular entity, consult the technical person listed underFOR FURTHER
INFORMATION CONTACT.
B. How Can I Get Additional Information, Including Copies of this
Document or Other Related Documents?
1. Docket. EPA has established an official public docket for this
action under docket identification (ID) number OPPT-2003-0061 (legacy
number OPPT-62165). The official public docket consists of the
documents specifically referenced in this action, any public comments
received, and other information related to this action. Although a part
of the official docket, the public docket does not include Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. The official public docket is the collection of
materials that is available for public viewing at the EPA Docket
Center, Rm. B102-Reading Room, EPA West, 1301 Constitution Ave., NW.,
Washington, DC. The EPA Docket Center is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The EPA Docket
Center Reading Room telephone number is (202) 566-1744 and the
telephone number for the OPPT Docket, which is located in EPA Docket
Center, is (202) 566-0280.
2. Electronic access. You may obtain electronic copies of this
document, and certain other related documents that might be available
electronically, from the EPA Internet Home Page at http://www.epa.gov/.
To access this document, on the Home Page select ``Laws and
Regulations,'' ``Regulations and Proposed Rules,'' and then look up the
entry for this document under the``Federal Register--Environmental
Documents.'' You can also go directly to the Federal Register listings
at http://www.epa.gov/fedrgstr/. A frequently updated electronic
version of 40 CFR part 745 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr745_00.html, a beta site currently
under development. To access information about lead-based paint and the
Lead Program, go directly to the Home Page at http://www.epa.gov/lead.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Although not all docket materials may be
available electronically, you may still access any of the publicly
available
[[Page 18490]]
docket materials through the docket facility identified in Unit I.B.1.
Once in the system, select ``search,'' then key in the appropriate
docket ID number.
II. Introduction
A. What is the Agency's Authority for Taking this Action?
EPA is issuing this final rule under the authority of TSCA section
407, 15 U.S.C. 2687. Section 407 states that regulations of the
Administrator under Subchapter IV of TSCA shall include such
recordkeeping and reporting requirements as may be necessary to ensure
effective implementation. EPA regulations under Subchapter IV of TSCA
include lead-based paint activities regulations, which this final rule
amends, codified at 40 CFR part 745, subpart L.
B. Why is the Agency Taking this Action?
The requirements in this final rule provide EPA compliance
monitoring and enforcement personnel with information necessary to
track lead-based paint abatement and training activities, and to
prioritize compliance inspections. The objective of the rule is to
ensure that a workforce of qualified and properly trained firms and
individuals can assist in the elimination of hazards associated with
lead-based paint. Providing a quality workforce of this type will
ensure that individuals and firms will conduct lead-based paint
activities in a way that safeguards the environment and protects human
health, specifically, the health of building occupants (especially
children under 6 years of age) and the workers themselves.
C. How Does this Action Fit into EPA's Overall Lead Program?
The Residential Lead-Based Paint Hazard Reduction Act of 1992
(Title X) amended TSCA by adding a new Title IV. Several sections of
Title X directed EPA to promulgate regulations aimed at fulfilling the
purposes of Title X. These include TSCA section 402, Lead-Based Paint
Activities Training and Certification, which directs EPA to promulgate
regulations to govern the training and certification of individuals
engaged in lead-based paint activities, the accreditation of training
programs, and the establishment of standards for conducting lead-based
paint activities. TSCA section 404 requires that EPA establish
procedures for States seeking to establish their own programs for lead-
based paint activities. On August 29, 1996, EPA promulgated a final
rule under TSCA sections 402 and 404 titled Lead; Requirements for
Lead-Based Paint Activities in Target Housing and Child-Occupied
Facilities (61 FR 45778). The rule is codified at 40 CFR part 745,
subparts L and Q.
One of the standards EPA developed for performing lead-based paint
activities, codified at 40 CFR 745.227(e)(4), requires notification to
EPA prior to the commencement of lead-based paint abatement activities
in a residential dwelling, or child-occupied facility, or as a result
of a Federal, State, Tribal, or local order. However, 40 CFR
745.227(e)(4) did not detail specific notification procedures. This
final rule includes such procedures.
This final rule also requires training programs accredited under 40
CFR 745.225 to notify EPA prior to providing initial and refresher
lead-based paint activities courses and to provide certain information
after the completion of a training course. Currently, accredited
training programs are asked to voluntarily notify EPA prior to offering
a lead-based paint activities course. To provide consistency in this
reporting, this final rule clearly defines the information needed by
the Agency and when it must be provided.
The notification requirements for lead-based paint abatement
activities and training courses in this final rule will assist
significantly in the implementation and enforcement of lead-based paint
activities regulations codified at 40 CFR part 745, subpart L. The
notification provisions will help to assure compliance by facilitating
observation of abatement activities and training by EPA compliance
monitoring and enforcement personnel.
D. Summary of Proposed Rule and Public Comments.
On January 22, 2001, EPA issued a proposed rule (66 FR 7208) (FRL-
6764-7) seeking to establish notification procedures, in those States
and Federally recognized Tribal jurisdictions without authorized
programs, for certified lead abatement professionals conducting lead-
based paint abatement activities, and accredited training programs
providing lead-based paint activities courses. Specifically, the
proposal introduced procedures for providing notification to EPA prior
to the commencement of lead-based paint abatement activities. The
proposal also introduced provisions which would require accredited
training programs to notify EPA under the following conditions: (1)
Prior to providing lead-based paint activities training courses; and
(2) following completion of lead-based paint activities training
courses.
In response to the proposal, EPA received 11 comments. The largest
number of responses was received from trainers and public educators (5
of the responses). Other commenters included government agencies (2 of
the responses), a representative of a municipality, and a national
organization representing demolition contractors. A summary of all
comments received, and EPA's responses, may be found in the Response to
Comments document which is available for public review in the TSCA
Docket for this rulemaking (see Unit I.B.).
The majority of the comments raised concerns regarding the time
periods allotted for notification of both lead-based paint abatement
activities and associated training. Specific areas of concern included:
(1) Time period for initial notification; (2) time period for
notification of delayed start date; (3) time period for notification of
cancellation or other significant changes; (4) emergency notification
requirements; (5) which businesses must provide notification and who
must sign the notification; and (6) purpose and use of information
collected. Major comments are discussed in Unit III., and remaining
comments are discussed in the Response to Comments document.
III. Final Rule Provisions
A. What are the Requirements for Notification of Lead-based Paint
Abatement Activities?
This final rule requires firms certified under 40 CFR 745.226 to
provide notification to the Agency prior to conducting lead-based paint
abatement activities. The original notice must be received by the
Agency at least 5 business days prior to the start of lead-based paint
abatement activities. An abbreviated notification period is provided
for lead-based paint abatement activities conducted in response to an
elevated blood lead level (EBL) determination and/or a Federal, State,
Tribal, or local emergency abatement order, where the firm is unable to
comply with the standard notification period due to the necessity for
an expeditious response to such event. If lead-based paint abatement
activities are expected to begin on a date other than that specified in
the original notice or if the other reported information changes, an
updated notice is required. The notice must include the following:
1. Notification type (original, updated, cancellation).
2. Date when lead-based paint abatement activities will start.
[[Page 18491]]
3. Date when lead-based paint abatement activities will end
(approximation using best professional judgement).
4. Firm's name, EPA certification number, address, telephone
number.
5. Type of building (e.g., single family dwelling, multi-family
dwelling, child-occupied facilities) on/in which abatement work will be
performed.
6. Property name (if applicable).
7. Property address including apartment or unit number(s) (if
applicable) for abatement work.
8. Documentation showing evidence of an EBL determination or a copy
of the Federal/State/Tribal/local emergency abatement order, if using
the abbreviated time period.
9. Name and EPA certification number of the project supervisor.
10. Approximate square footage/acreage to be abated.
11. Brief description of abatement activities to be performed.
12. Name, title, and signature of the representative of the
certified firm who prepared the notification.
Notification must be accomplished using any of the following
methods: written notification, or electronically using the Agency's
Central Data Exchange (CDX). Written notification can be accomplished
using either the sample form titled Notification of Lead-Based Paint
Abatement Activities or similar form containing the required
information. All written notifications must be delivered by U.S. Postal
Service, fax, commercial delivery service, or hand delivery.
B. What are the Requirements for Notification of Lead-based Paint
Activities Training?
This final rule requires training programs accredited under 40 CFR
745.225 to provide notification to the Agency prior to conducting lead-
based paint activities courses. The original notice must be received by
the Agency at least 7 business days prior to the start of a lead-based
paint activities course. An updated notice is required if the starting
date for a lead-based paint activities course is changed to a date
other than that specified in the original notice or if the other
reported information changes. The notice must include the following:
1. Notification type (original, update, cancellation).
2. Training program name, EPA accreditation number, address, and
telephone number.
3. Course discipline, type (initial/ refresher), and the language
in which instruction will be given.
4. Date(s) and time(s) of training.
5. Training location(s) telephone number, and address.
6. Principal instructor's name.
7. Training manager's name and signature.
Training programs must also provide notice to the Agency following
completion of a lead-based paint activities course. This notice must be
provided to the Agency within 10 business days of course completion.
This notice must include the following:
1. Training program name, EPA accreditation number, address, and
telephone number.
2. Course discipline and type (initial/refresher).
3. Date(s) of training.
4. The following information for each student who took the course:
a. Name.
b. Address.
c. Date of birth.
d. Course completion certificate number.
e. Course test score.
f. Training manager's name and signature.
Notification must be accomplished using any of the following
methods: Written notification, or electronically using the Agency's
Central Data Exchange (CDX). Written notification of lead-based paint
activities course schedules can be accomplished by using either the
appropriate sample form provided by EPA or a similar form containing
the required information. All written notifications must be delivered
by U.S. Postal Service, fax, commercial delivery service, or hand
delivery.
C. What Changes Were Made in the Final Rule?
In light of the public's comments, EPA has carefully reviewed the
proposed rulemaking and has made certain modifications in the final
rule. The following is a brief description of the most significant
changes adopted in response to public comment on the proposal. Further
information regarding comments received or EPA's response can be
reviewed in the Response to Comments document available for public
review in the public docket described in Unit I.B.1. With the exception
of these and additional minor editorial changes, the final rule is as
proposed on January 22, 2001. The following discussion describes the
changes.
1. Time period for initial abatement notification. EPA received
comments expressing concern that the proposed 10 business day initial
notification may hamper some abatement processes, including the ability
of lead abatement firms to respond quickly to work demands.
Upon review, EPA has modified the initial notification period. The
final rule includes a 5 business day initial notification period for
lead-based paint abatement activities. EPA believes that the 5 business
day notification period adequately addresses the concerns of the
commenters while providing EPA with enough time to enable enforcement
and compliance assistance personnel to adequately oversee abatement
activities. Specifically, a 5-day notification period provides EPA
sufficient time to perform activities such as processing the
notification, making a determination of whether a compliance inspection
is needed, preparing a travel authorization, providing a pre-inspection
notification, performing a preliminary compliance review, and
completing travel arrangements.
2. Time period for notification of delayed start date. EPA received
comments regarding the proposed requirement that, if the project start
date was to be delayed, notification would be provided to EPA 2
business days prior to the original start date. A commenter pointed out
that it would be impossible to provide notification to EPA 2 business
days prior to the original start date if issues regarding commencement
of work arose on the day that work begins (e.g., lack of access to the
work site).
EPA agrees that circumstances can arise on the project start date
which delay work. Therefore, the final rule requires that notification
of delayed lead-based paint abatement start dates be received by EPA on
or before the original start date.
3. Time period for notification of cancellation or other
significant changes. EPA received comments regarding the proposed
requirement that, where abatement activities are canceled or other
significant changes occur, EPA be notified 2 business days prior to the
original start date. The commenters pointed out that it is impossible
to update EPA regarding significant changes to the abatement project 2
days before the start date when the changes occur during the project.
Upon further review EPA agrees that providing cancellation or
updated information 2 business days prior to the original start date in
some cases could prove impossible. Therefore, the final regulation
requires that notification of cancellation of lead-based paint
activities be received by EPA on or before the original start date. In
addition, any other required information updates must be received by
EPA on or before the original start date, and where work has begun,
within 24 hours of the change.
[[Page 18492]]
4. Certified supervisor's signature on the notification. A
commenter asked why a certified supervisor must sign an abatement
notification.
EPA has an interest in verifying that the project will be overseen
by a certified supervisor as required by the regulation; however, on
re-examination in light of the commenter's question, EPA believes that
the notification itself need not be signed by a certified supervisor.
EPA has modified the requirement in the final rule to indicate that a
representative of the firm may sign the notification document. EPA also
added a requirement that the name and certification number of the
supervisor overseeing the project be included in the notification.
5. Time period for initial training notification. EPA received a
comment regarding the time period for initial training notification.
The commenter expressed concern that a 10 business day notification
could hamper the ability of firms and individuals in the lead-based
paint abatement field to obtain training quickly.
EPA is concerned that the proposed 10 business day notification
period could prevent individuals from obtaining timely lead-based paint
activities training. The final rule is modified to include a 7 business
day initial notification period for lead-based paint activities
training. This notification period provides EPA time to perform
activities such as: Processing the notification, making a determination
of whether a compliance inspection is needed, preparing a travel
authorization, providing a pre-inspection notification, performing a
preliminary compliance review, and completing travel arrangements. This
notification period differs from abatement because compliance personnel
often observe training in its entirety which necessitates an early
arrival, whereas they will routinely monitor only a portion of an
abatement project.
6. Student information. EPA received a comment that a student's
date of birth should be provided to EPA following training rather than
their social security number. The commenter stated that trainees are
often reluctant to provide valid social security numbers, and believes
that a date of birth would be as reliable an indicator of the student's
identity as their social security number.
EPA agrees that a student's date of birth in conjunction with other
required information is a reliable indicator of the student's identity.
Therefore, the final regulation eliminates the requirement that
training programs provide student's social security numbers and instead
requires that a student's date of birth be reported.
7. Requirement to follow e-mail notification with written
notification. EPA received comments regarding the requirement to follow
e-mail notification with written notification. The commenters indicated
that e-mail notification should be sufficient, and that a follow-up
written notification would be redundant and increase the paperwork
burden of both government and industry.
EPA plans to use its Central Data Exchange (CDX) to receive
electronic notification submitted to satisfy the requirements of this
regulation. One of the basic purposes of the CDX system is to provide a
method of electronic signature verification, which eliminates the need
for a follow-up written notification after an e-mail notification is
provided. Therefore, where a submission is provided electronically via
the Agency's CDX system, follow-up written notice is not required.
8. Ability to use other forms if information is the same. EPA
received comments regarding the use of forms, other than the sample
forms developed by EPA, containing the information specified in the
proposal. Both commenters suggest EPA minimize respondent burden by
allowing the use of other forms as long as they provide the same
information required under the EPA rule.
EPA agrees that allowing alternative forms can reduce respondent
burden and agrees that other forms should be allowed to be used if they
contain the information required by EPA. The final rule allows the use
of alternative forms that contain the information required by EPA.
9. Terminology. EPA received a comment that the use of the terms
``project start date'' and ``original start date'' were confusing.
EPA agreed and introduced new terms and definitions for ``start
date'' and ``start date provided to EPA'' which clarify these
requirements. In addition, EPA removed the definition of ``lead
abatement professional'' because the term was not introduced in the
regulatory text.
D. How Do I Obtain Notification Instructions and Sample Forms?
Instructions and sample forms can be obtained from the National
Lead Information Center at 1-800-424-LEAD(5323), or on the Internet at
http://www.epa.gov/lead.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866
Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), it has been determined that this
final rule is not a ``significant regulatory action'' subject to review
by the Office of Management and Budget (OMB) under Executive Order
12866, because this action does not meet any of the criteria for a
``significant regulatory action'' under section 3(f) of Executive Order
12866.
The costs for the first year of implementation are estimated to be
approximately $440,000, decreasing to an average annual estimated cost
of approximately $395,000 in subsequent years. For additional
information about these estimated costs, please refer to the document
titled Information Collection Request (ICR) Supporting Statement for a
Proposed Addendum to EPA ICR No. 1715 titled TSCA Sec. 402/404 Training
and Certification, Accreditation, and Standards for Lead-Based Paint
Activities (hereinafter the ICR Addendum (EPA ICR No. 1715.03)). This
document, identified as EPA ICR No. 1715.03, is an addendum to the
existing ICR. A copy is available in the public docket described in
Unit I.B.1.
B. Paperwork Reduction Act
The information collection requirements contained in this final
rule have been approved by OMB under the Paperwork Reduction Act (PRA),
44 U.S.C. 3501 et seq., and assigned OMB control number 2070-0155. A
copy of the Information Collection Request (ICR) document (EPA ICR No.
1715.05) has been placed in the public docket described in Unit I.B.1.
The information requirements contained in this rule are not
effective until promulgation and OMB approval, which is represented by
a currently valid OMB control number. An Agency may not conduct or
sponsor and a person is not required to respond to a collection of
information subject to OMB approval under the PRA unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in Title 40 of the CFR, after initial publication in the
Federal Register and inclusion on the collection instruments, are
maintained in a list at 40 CFR part 9.
The final rule contains the following information collection
requirements subject to the PRA that impose paperwork burdens: (1)
Reading and interpreting the final rule; (2) the notification of lead-
based paint
[[Page 18493]]
abatement activities; (3) the notification of lead-based paint
activities training courses; and (4) the notification following
completion of lead-based paint activities training courses. The total
paperwork burdens are estimated to be 21,254 total hours for the first
year of implementation, and 19,048 hours annually in subsequent years.
Under the PRA, ``burden'' means the total time, effort, or
financial resources expended by persons to generate, maintain, retain,
disclose or provide information to or for a Federal Agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
C. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA)
(5 U.S.C. 601 et seq.), EPA hereby certifies that this action will not
have a significant economic impact on a substantial number of small
entities. The factual basis for EPA's determination, which is
summarized here, is based on the small entity impact analysis prepared
as part of the Regulatory Impact Analysis (RIA) for the 1996 Lead
Abatement Training and Certification Final Rule (61 FR 45778). EPA
assessed the potential small entity impacts of the notification
requirement that was contained in the 1996 final rule as part of the
economic analysis that was prepared for that rulemaking, a copy of
which is available in the public docket described in Unit I.B.1. In
addition, EPA has estimated the impacts of the procedural requirements
contained in this rule, which are presented in the ICR Addendum (EPA
ICR No. 1715.03).
In considering the potential small entity impacts of this final
rule, EPA believes that its previous determination regarding the Lead
Abatement Training and Certification Final Rule is not affected by the
notification procedures contained in this final rule. Based on the
estimated total costs of this final rule as presented in the ICR
Addendum (EPA ICR No. 1715.03), EPA has determined that this rulemaking
is not likely to result in a significant economic impact on a
substantial number of small entities. In general, EPA strives to
minimize potential adverse impacts on small entities when developing
regulations to achieve the environmental and human health protection
goals of the statute and EPA.
For the purpose of analyzing the potential impacts of this final
rule on small entities, EPA used the definition for small entities that
is found in section 601 of the RFA. Under section 601, ``small entity''
is defined as: (1) A small business that meets Small Business
Administration (SBA) size standards codified at 13 CFR 121.201; (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field. The SBA size standards for the small businesses
potentially affected by this final rule is 500 employees or less for
lead abatement firms whose primary activity is classified as
environmental remediation (NAICS code 562910), and revenues of $5
million or less for firms that are accredited to provide lead-based
paint training (NAICS code 611519).
This rule only applies in those States and Tribes that do not have
authorized programs pursuant to 40 CFR 745.324, and then only applies
if that State or Tribe chooses to seek certification to perform lead
abatement activities or accreditation to provide lead training. As
such, small governmental jurisdictions are only impacted if there is
not a State or Tribe authorized program and then only if the small
governmental entity chooses to seek certification to perform lead
abatement activities or accreditation to provide lead training on their
own. To estimate potential impacts on small governments, EPA estimated
that in the first year of implementation there could be approximately
15.36 abatement notifications per firm and 17.93 training provider
notifications per provider. In subsequent years, the number of training
provider notifications are expected to decrease to four each year per
provider.
Small businesses are only impacted if there is not a State or Tribe
authorized program in their State, and then only if they seek
certification to perform lead abatement activities or accreditation to
provide lead training. EPA estimates that there could be approximately
15.36 notifications per firm each year, and approximately 4,000 firms.
The estimated average cost per notification for abatement firms is
approximately $5, with an estimated total cost per entity of
approximately $75 annually. The estimated average cost per notification
for training providers is approximately $32, with an estimated total
cost per entity of approximately $298 in the first year and
approximately $67 in subsequent years. EPA believes that the impact of
these costs would be proportional for both small and large firms, and
that the impacts may be slightly lower for small governmental
jurisdictions that seek EPA certification as an abatement firm or EPA
accreditation as a training provider due to lower wage rates and
overhead expenses. Overall, EPA believes that these costs would not
result in a significant economic impact on affected small entities.
Small non-profit organizations are only impacted if they seek
certification to perform lead abatement activities or accreditation to
provide lead training on their own. Although EPA believes that non-
profit organizations may seek certification, EPA does not have
sufficient information about these organizations or their intentions
regarding certification or accreditation. Nevertheless, given the low
costs for notification and the relatively small number of non-profit
organizations, EPA does not believe that this affects EPA's
determination that this rule is not expected to have a significant
economic impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995
(UMRA) (Public Law No. 104-4), EPA has determined that this regulatory
action does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any 1 year.
This final rule applies only in States and Indian Tribes that do not
have authorized programs pursuant to 40 CFR 745.324, and then only
applies to those States and Indian Tribes who choose to seek
certification to perform lead abatement activities or accreditation to
provide lead training. As such, the rule will not impose an enforceable
duty on any State, local or Tribal governments. Since, this final rule
is estimated to cost approximately $439,573 in the first year of
implementation, and $395,157 annually in subsequent years, it is not
expected to result in expenditures by the private sector of $100
million or more in any given year. As a result, the UMRA requirements
in sections 202, 204, and 205 do not apply to this final rule.
[[Page 18494]]
This rule contains no regulatory requirements that might
significantly or uniquely affect small governments. Therefore, no
action is needed under section 203 of the UMRA.
E. Executive Order 13132
Executive Order 13132, entitled Federalism (64 FR 43255, August 10,
1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications, because it
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. This final rule
applies only in States that do not have authorized programs pursuant to
40 CFR 745.324, and then only applies to those States who choose to
seek certification to perform lead abatement activities or
accreditation to provide lead training.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA consulted with the States at meetings of the Forum on State
and Tribal Toxics Action and the annual EPA meeting with State Lead
Program representatives.
F. Executive Order 13175
This rule does not significantly or uniquely affect the communities
of Indian tribal governments, because this final rule applies only in
Indian Tribes that do not have authorized programs pursuant to 40 CFR
745.324, and then only applies to those Indian Tribes who choose to
seek certification to perform lead abatement activities or
accreditation to provide lead training. Accordingly, the requirements
of section 3(b) of Executive Order 13084, entitled Consultation and
Coordination with Indian Tribal Governments (63 FR 276755, May 19,
1998), do not apply to this rule. Executive Order 13175, entitled
Consultation and Coordination with Indian Tribal Governments (65 FR
67249, November 6, 2000), which took effect on January 6, 2001, revokes
Executive Order 13084 as of that date. EPA developed this rulemaking,
however, during the period when Executive Order 13084 was in effect;
thus, EPA addressed tribal considerations under Executive Order 13084.
For the same reasons stated for Executive Order 13084, the requirements
of Executive Order 13175 do not apply to this rule either.
G. Executive Order 13045
Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997), applies to any rule that (1) is economically significant as
defined under OMB's guidance related to section 3(f)(1) of Executive
Order 12866, and (2) addresses an environmental health or safety risk
that EPA has reason to believe has a disproportionate effect on
children. If the regulatory action meets both criteria, EPA must
evaluate the environmental health or safety effects of the planned rule
on children; and explain why the planned regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by EPA.
This rule is not subject to Executive Order 13045 because it is not
an ``economically significant regulatory action'' as defined by
Executive Order 12866 (see Unit IV.A.). Although this final rule is
associated with EPA's overall lead-based paint management program which
is designed to reduce health risks to children, this rule itself simply
establishes an Agency notification procedure and does not directly
address environmental health or safety risk. This final rule does,
however, help to further EPA's efforts to prevent lead poisoning in
children under the age of 6 by supporting EPA's implementation of the
mandate in Title X, which requires that lead professionals involved in
inspecting, assessing or removing lead-based paint, dust or soil be
trained and certified to conduct these activities.
H. Executive Order 13211
This rule is not subject to Executive Order 13211, entitled Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use (66 FR 28355, May 22, 2001), because this action
is not expected to affect energy supply, distribution, or use.
I. National Technology Transfer and Advancement Act
This regulatory action does not involve any technical standards
that would require Agency consideration of voluntary consensus
standards pursuant to section 12(d) of the National Technology Transfer
and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15
U.S.C. 272 note). Section 12(d) of NTTAA directs EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA requires EPA to provide Congress, through
OMB, explanations when EPA decides not to use available and applicable
voluntary consensus standards. EPA invites comment on the potential use
of voluntary consensus standards in this rulemaking, and, specifically,
invites the public to identify potentially applicable consensus
standard(s) and to explain why such standard(s) should be used here.
J. Executive Order 12898
Pursuant to Executive Order 12898, entitled Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994), EPA has considered
environmental justice related issues with regard to the potential
impacts of this action on the environmental and health conditions in
low-income and minority communities. EPA's analysis has determined that
this final action has no disproportionate impact on minority or low-
income populations.
K. Executive Order 12630
EPA has complied with Executive Order 12630, entitled Governmental
Actions and Interference with Constitutionally Protected Property
Rights (53 FR 8859, March 15, 1988), by examining the takings
implications of this rule in accordance with the Attorney General's
Supplemental Guidelines for the Evaluation of Risk and Avoidance of
Unanticipated Takings issued under the Executive Order.
L. Executive Order 12988
In issuing this final rule, EPA has taken the necessary steps to
eliminate drafting errors and ambiguity, minimize potential litigation,
and provide a clear legal standard for affected conduct, as required by
section 3 of Executive Order 12988, entitled Civil Justice Reform (61
FR 4729, February 7, 1996).
V. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides
[[Page 18495]]
that before a rule may take effect, the Agency promulgating the rule
must submit a rule report, which includes a copy of the rule, to each
House of the Congress and the Comptroller General of the United States.
EPA will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 745
Environmental protection, Fees, Hazardous substances, Lead
poisoning, Reporting and recordkeeping requirements.
Dated: March 31, 2004.
Michael O. Leavitt,
Administrator.
Therefore, 40 CFR chapter I is amended as follows:
PART 745--[AMENDED]
0
1. The authority citation for part 745 continues to read as follows:
Authority: 15 U.S.C. 2605, 2607, 2615, 2681-2692, and 42 U.S.C.
4852d.
0
2. Section 745.223 is amended by alphabetically adding the following
definitions to read as follows:
Sec. 745.223 Definitions.
* * * * *
Business day means Monday through Friday with the exception of
Federal holidays.
* * * * *
Lead-based paint activities courses means initial and refresher
training courses (worker, supervisor, inspector, risk assessor, project
designer) provided by accredited training programs.
* * * * *
Start date means the first day of any lead-based paint activities
training course or lead-based paint abatement activity.
Start date provided to EPA means the start date included in the
original notification or the most recent start date provided to EPA in
an updated notification.
* * * * *
Training provider means any organization or entity accredited under
Sec. 745.225 to offer lead-based paint activities courses.
* * * * *
0
3. Section 745.225 is amended by adding paragraphs (c)(13) and (c)(14)
and revising paragraph (e)(5)(vi) to read as follows:
Sec. 745.225 Accreditation of training programs: target housing and
child-occupied facilities.
* * * * *
(c) * * *
(13) The training manager must provide notification of lead-based
paint activities courses offered.
(i) The training manager must provide EPA with notification of all
lead-based paint activities courses offered. The original notification
must be received by EPA at least 7 business days prior to the start
date of any lead-based paint activities course.
(ii) The training manager must provide EPA updated notification
when lead-based paint activities courses will begin on a date other
than the start date specified in the original notification, as follows:
(A) For lead-based paint activities courses beginning prior to the
start date provided to EPA, an updated notification must be received by
EPA at least 7 business days before the new start date.
(B) For lead-based paint activities courses beginning after the
start date provided to EPA, an updated notification must be received by
EPA at least 2 business days before the start date provided to EPA.
(iii) The training manager must update EPA of any change in
location of lead-based paint activities courses at least 7 business
days prior to the start date provided to EPA.
(iv) The training manager must update EPA regarding any course
cancellations, or any other change to the original notification.
Updated notifications must be received by EPA at least 2 business days
prior to the start date provided to EPA.
(v) Each notification, including updates, must include the
following:
(A) Notification type (original, update, cancellation).
(B) Training program name, EPA accreditation number, address, and
telephone number.
(C) Course discipline, type (initial/ refresher), and the language
in which instruction will be given.
(D) Date(s) and time(s) of training.
(E) Training location(s) telephone number, and address.
(F) Principal instructor's name.
(G) Training manager's name and signature.
(vi) Notification must be accomplished using any of the following
methods: Written notification, or electronically using the Agency's
Central Data Exchange (CDX). Written notification of lead-based paint
activities course schedules can be accomplished by using either the
sample form titled ``Lead-Based Paint Activities Training Course
Schedule'' or a similar form containing the information required in
paragraph (c)(13)(v) of this section. All written notifications must be
delivered by U.S. Postal Service, fax, commercial delivery service, or
hand delivery (persons submitting notification by U.S. Postal Service
are reminded that they should allow 3 additional business days for
delivery in order to ensure that EPA receives the notification by the
required date). Instructions and sample forms can be obtained from the
NLIC at 1-800-424-LEAD(5323), or on the Internet at http://www.epa.gov/lead.
(vii) Lead-based paint activities courses must not begin on a date,
or at a location other than that specified in the original notification
unless an updated notification identifying a new start date or location
is submitted, in which case the course must begin on the new start date
and/or location specified in the updated notification.
(viii) No training program shall provide lead-based paint
activities courses without first notifying EPA of such activities in
accordance with the requirements of this paragraph.
(14) The training manager must provide notification following
completion of lead-based paint activities courses.
(i) The training manager must provide EPA notification after the
completion of any lead-based paint activities course. This notice must
be received by EPA no later than 10 business days following course
completion.
(ii) The notification must include the following:
(A) Training program name, EPA accreditation number, address, and
telephone number.
(B) Course discipline and type (initial/refresher).
(C) Date(s) of training.
(D) The following information for each student who took the course:
(1) Name.
(2) Address.
(3) Date of birth.
(4) Course completion certificate number.
(5) Course test score.
(E) Training manager's name and signature.
(iii) Notification must be accomplished using any of the following
methods: Written notification, or electronically using the Agency's
Central Data Exchange (CDX). Written notification following lead-based
paint activities training courses can be accomplished by using either
the sample form titled ``Lead-Based Paint Activities Training Course
Follow-up''
[[Page 18496]]
or a similar form containing the information required in paragraph
(c)(14)(ii) of this section. All written notifications must be
delivered by U.S. Postal Service, fax, commercial delivery service, or
hand delivery (persons submitting notification by U.S. Postal Service
are reminded that they should allow 3 additional business days for
delivery in order to ensure that EPA receives the notification by the
required date). Instructions and sample forms can be obtained from the
NLIC at 1-800-424-LEAD(5323), or on the Internet at http://www.epa.gov/lead.
* * * * *
(e) * * *
(5) * * *
(vi) The requirements in paragraphs (c)(1) through (c)(5), and
(c)(7) through (c)(14) of this section apply to refresher training
providers.
* * * * *
0
4. Section 745.227 is amended by revising paragraph (e)(4) to read as
follows:
Sec. 745.227 Work practice standards for conducting lead-based paint
activities: target housing and child-occupied facilities.
* * * * *
(e) * * *
(4) A certified firm must notify EPA of lead-based paint abatement
activities as follows:
(i) Except as provided in paragraph (e)(4)(ii) of this section, EPA
must be notified prior to conducting lead-based paint abatement
activities. The original notification must be received by EPA at least
5 business days before the start date of any lead-based paint abatement
activities.
(ii) Notification for lead-based paint abatement activities
required in response to an elevated blood lead level (EBL)
determination, or Federal, State, Tribal, or local emergency abatement
order should be received by EPA as early as possible before, but must
be received no later than the start date of the lead-based paint
abatement activities. Should the start date and/or location provided to
EPA change, an updated notification must be received by EPA on or
before the start date provided to EPA. Documentation showing evidence
of an EBL determination or a copy of the Federal/State/Tribal/local
emergency abatement order must be included in the written notification
to take advantage of this abbreviated notification period.
(iii) Except as provided in paragraph (e)(4)(ii) of this section,
updated notification must be provided to EPA for lead-based paint
abatement activities that will begin on a date other than the start
date specified in the original notification, as follows:
(A) For lead-based paint abatement activities beginning prior to
the start date provided to EPA an updated notification must be received
by EPA at least 5 business days before the new start date included in
the notification.
(B) For lead-based paint abatement activities beginning after the
start date provided to EPA an updated notification must be received by
EPA on or before the start date provided to EPA.
(iv) Except as provided in paragraph (e)(4)(ii) of this section,
updated notification must be provided to EPA for any change in location
of lead-based paint abatement activities at least 5 business days prior
to the start date provided to EPA.
(v) Updated notification must be provided to EPA when lead-based
paint abatement activities are canceled, or when there are other
significant changes including, but not limited to, when the square
footage or acreage to be abated changes by more than 20%. This updated
notification must be received by EPA on or before the start date
provided to EPA, or if work has already begun, within 24 hours of the
change.
(vi) The following must be included in each notification:
(A) Notification type (original, updated, cancellation).
(B) Date when lead-based paint abatement activities will start.
(C) Date when lead-based paint abatement activities will end
(approximation using best professional judgement).
(D) Firm's name, EPA certification number, address, telephone
number.
(E) Type of building (e.g., single family dwelling, multi-family
dwelling, child-occupied facilities) on/in which abatement work will be
performed.
(F) Property name (if applicable).
(G) Property address including apartment or unit number(s) (if
applicable) for abatement work.
(H) Documentation showing evidence of an EBL determination or a
copy of the Federal/State/Tribal/local emergency abatement order, if
using the abbreviated time period as described in paragraph (e)(4)(ii)
of this section.
(I) Name and EPA certification number of the project supervisor.
(J) Approximate square footage/acreage to be abated.
(K) Brief description of abatement activities to be performed.
(L) Name, title, and signature of the representative of the
certified firm who prepared the notification.
(vii) Notification must be accomplished using any of the following
methods: Written notification, or electronically using the Agency's
Central Data Exchange (CDX). Written notification can be accomplished
using either the sample form titled ``Notification of Lead-Based Paint
Abatement Activities'' or similar form containing the information
required in paragraph (e)(4)(vi) of this section. All written
notifications must be delivered by U.S. Postal Service, fax, commercial
delivery service, or hand delivery (persons submitting notification by
U.S. Postal Service are reminded that they should allow 3 additional
business days for delivery in order to ensure that EPA receives the
notification by the required date). Instructions and sample forms can
be obtained from the NLIC at 1-800-424-LEAD(5323), or on the Internet
at http://www.epa.gov/lead.
(viii) Lead-based paint abatement activities shall not begin on a
date, or at a location other than that specified in either an original
or updated notification, in the event of changes to the original
notification.
(ix) No firm or individual shall engage in lead-based paint
abatement activities, as defined in Sec. 745.223, prior to notifying
EPA of such activities according to the requirements of this paragraph.
* * * * *
[FR Doc. 04-7980 Filed 4-7-04; 8:45 am]
BILLING CODE 6560-50-S