federal register

Wednesday

June 9, 1999

Part VII

Environmental

Protection Agency

40 CFR Part 745

Lead; Fees for Accreditiation of Training

Programs and Certification of Lead-based

Paint Activities Contractors; Final Rule
31092 Federal Register / Vol. 64, No. 110 /Wednesday, June 9, 1999 /Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 745

[OPPTS–62158A; FRL–6058–6]

RIN 2070–AD11

Lead; Fees for Accreditation of

Training Programs and Certification of

Lead-based Paint Activities

Contractors

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is issuing this final rule

to establish fees for the accreditation of

training programs and certification of

contractors engaged in lead-based paint

activities pursuant to section 402(a)(3)

of the Toxic Substances Control Act

(TSCA). As specified in section

402(a)(3), EPA must establish and

implement a fee schedule to recover, for

the U.S. Treasury, the Agency’s cost of

administering and enforcing the

standards and requirements applicable

to lead-based paint training programs

and contractors engaged in lead-based

paint activities. Specifically, this rule

establishes the fees to be charged in

those States and Indian country without

authorized programs for training

programs seeking accreditation under 40

CFR 745.225, and for individuals or

firms engaged in lead-based paint

activities seeking certification under 40

CFR 745.226. About three-quarters of

the nation’s housing stock built before

1978 (64 million homes) contains some

lead-based paint. When properly

maintained and managed, this paint

poses little risk. If improperly managed,

chips and dust from this paint can

create a health hazard. Recent studies

indicate that nearly one million

children have blood-lead levels above

safe limits; the most common source of

lead exposure in the United States is

lead-based paint. Today’s rule supports

the effort of 40 CFR part 745, subpart L

to ensure that contractors claiming to

know how to inspect, assess or remove

lead-based paint, dust or soil are well

qualified, trained and certified to

conduct these activities. This final rule

is based on a proposal published in the

Federal Register of September 2, 1998.

DATES: The requirements in this final

rule will take effect on June 11, 1999. In

accordance with 40 CFR 23.5, this rule

shall be promulgated for purposes of

judicial review at 1 p.m. Eastern

Standard Time on June 11, 1999.

FOR FURTHER INFORMATION CONTACT: For

general information contact: Christine

M. Augustyniak, Associate Director,

Environmental Assistance Division

(7408), Rm. E–543B, Office of Pollution

Prevention and Toxics, Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 20460; telephone

numbers: 202–554–1404 and TDD: 202–

554–0551; e-mail address: TSCAHotline@epa.gov.

For technical information contact:

Mike Wilson, Project Manager, National

Program Chemicals Division (7404),

Office of Pollution Prevention and

Toxics, Environmental Protection

Agency, 401 M St., SW., Washington,

DC 20460; telephone number: 202–260–

4664; fax number: 202–260–0770; e-mail

address: wilson.mike@epa.gov.

SUPPLEMENTARY INFORMATION:

I. 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

professional (individual or firm) who

must be certified to conduct lead-based

paint activities in accordance with 40

CFR 745.226. Potentially affected

categories and entities may include:

Type of Entity SIC Code Examples of Entities

Lead abatement professionals 1799, 8734 Workers, supervisors, inspectors, risk assessors and project

designers engaged in lead-based paint activities. Firms engaged in lead-based paint activities.

Training programs 1799, 8331, 8742, 8748 Training programs providing training services in lead-based

paint activities.

This table is not intended to be

exhaustive, but rather provides a guide

to the entities that are likely to be

affected by this action. This table lists

the types of entities that EPA is now

aware could potentially be affected by

this action. Other types of entities not

listed in this table could also be

affected. To determine whether you or

your business is affected by this action,

you should carefully examine the

provisions in 40 CFR part 745. The

Standard Industrial Classification (SIC)

codes that are provided in the table have

been included to assist you and others

in determining whether or not this

action might apply to certain entities. If

you have any questions regarding the

applicability of this action to a

particular entity, consult the technical

person listed in the FOR FURTHER

INFORMATION CONTACT section.

II. How Can I Get Additional

Information, Including Copies of this or

Other Related Documents?

A. Electronically

You may obtain electronic copies of

this document and certain other

available documents from the EPA

Internet Home Page at http://

www.epa.gov/. On the Home Page select

‘‘Laws and Regulations’’ and then look

up the entry for this document under

‘‘Federal Register Environmental

Documents.’’ You can also go directly to

the ‘‘Federal Register’’ listings at http:/

/www.epa.gov/homepage/fedrgstr/.

B. In Person

The Agency has established an official

record for this action under docket

control number OPPTS–62158A. The

official record consists of the documents

specifically referenced in this action,

any public comments received during

an applicable comment period, and

other information related to this action,

including any information claimed as

confidential business information (CBI).

This official record includes the

documents that are physically located in

the docket, as well as the documents

that are referenced in those documents.

The public version of the official record

does not include any information

claimed as CBI. The public version of

the official record, which includes

printed, paper versions of any electronic

comments submitted during an

applicable comment period, is available

for inspection in the TSCA

Nonconfidential Information Center,

North East Mall Rm. B–607, Waterside

Mall, 401 M St., SW., Washington, DC.

The Center is open from 12 noon to 4

p.m., Monday through Friday, excluding
Federal Register / Vol. 64, No. 110 /Wednesday, June 9, 1999 /Rules and Regulations 31093

legal holidays. The telephone number of

the Center is (202) 260–7099.

III. Who Will Be Required to Pay Fees

Under this Rule?

The fees in this rule apply to: (1)

Training programs applying to EPA for

the accreditation and re-accreditation of

training courses in the following

disciplines: inspector, risk assessor,

supervisor, project designer, abatement

worker, and (2) individuals and firms

seeking certification and re-certification

from EPA to engage in lead-based paint

activities in one or more of the abovementioned disciplines. Consistent with

TSCA section 402(a)(3) and as further

described in this preamble, this rule

precludes the imposition of fees for the

accreditation of training programs

operated by a State, federally recognized

Indian Tribe, local government, or

nonprofit organization. This exemption

does not apply to the certification of

firms or individuals.

This rule applies only in States and

Indian country where there are no

authorized programs pursuant to 40 CFR

part 745, subpart Q. For further

information regarding the authorization

status of States or Indian Tribes contact

the National Lead Information Center

(NLIC) at 1–800–424–LEAD.

IV. Under What Legal Authority Is this

Action Being Issued?

EPA is issuing this rule under the

authority of section 402 of TSCA (15

U.S.C. 2682). Sections 402(a)(1) and

(a)(2) require the Agency to promulgate

regulations for, among other things, the

accreditation of training programs and

the certification of individuals and firms

engaged in lead-based paint activities.

The regulation titled ‘‘Lead;

Requirements for Lead-Based Paint

Activities in Target Housing and Child

Occupied Facilities’’ was published in

the Federal Register of August, 29 1996

(61 FR 45805) (FRL–5389–9), and

appears at 40 CFR part 745, subpart L.

Section 402(a)(3) of TSCA requires, with

certain exceptions, that the

Administrator of EPA impose a fee on

persons operating accredited training

programs and on individuals and firms

engaged in lead-based paint activities

certified under TSCA. Section 402(a)(3)

requires that the fees be established at

a level necessary to cover the costs of

administering and enforcing the

standards and regulations under this

section. EPA does not have the authority

to retain fees collected under this

program. Therefore, fees collected by

the Agency will be deposited into the

U.S. Treasury as required by 31 U.S.C.

3302(b).

Section 553 of the Administrative

Procedure Act (APA) provides that most

final rules should become effective no

sooner than 30 days after publication in

the Federal Register. The purpose of the

30–day lag time is to ‘‘afford persons

affected a reasonable time to prepare for

the effective date of a rule or rules or to

take any other action which the

issuance of rules may prompt.’’ Sen.

Rep. 752, 79th Cong., 1st sess. at p.15.

However, the APA also provides that

agencies may for ‘‘good cause’’ make

rules effective in less than 30 days. Such

good cause exists if it is in the interest

of the persons affected by the rule that

it be issued earlier. Attorney General’s

Manual on the APA at 37. EPA is

invoking the ‘‘good cause’’ exemption in

section 553(d)(3) of the APA to make

this rule effective in less than 30 days

because EPA believes that the early

effective date will allow parties seeking

certification or accreditation under the

rule to receive the benefit of earlier EPA

action on their applications. This may

be particularly important to those

training programs which have submitted

early applications for accreditation in

States and Tribes where EPA is

administering the lead program, and

which will not be able to offer leadbased paint activities training that

satisfies EPA requirements after March

1, 1999, without EPA accreditation.

Those parties wishing to defer payment

of fees established under this rule may

simply defer submission of an

application to EPA for accreditation or

certification.

V. 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. TSCA section 402, Lead-Based Paint

Activities Training and Certification,

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 to establish standards for

conducting lead-based paint activities.

Section 404 of TSCA requires that EPA

establish procedures for States and

Indian tribes seeking to establish their

own lead-based paint activities

programs. On August 29, 1996, EPA

promulgated final rules that

implemented sections 402 and 404 of

TSCA titled ‘‘Lead; Requirements for

Lead-Based Paint Activities in Target

Housing and Child-Occupied

Facilities.’’ These rules are codified at

40 CFR part 745, subparts L and Q.

Section 402(a)(3) of TSCA directs the

Agency to establish fees to recover the

cost of administering and enforcing the

lead-based paint activities training and

certification program. The statute

provides an exemption from fee

payment for training programs operated

by a State government, local

government, or nonprofit organization.

Today’s rule addresses this TSCA

requirement with respect to entities

regulated under part 745, subpart L.

This rule establishes fees for the

certification and periodic recertification of individuals and firms,

and for the accreditation and periodic

re-accreditation of training programs.

Also included are fees for examinations,

replacement of a lost certificate or

identification card, and for registration

in more than one EPA-administered

jurisdiction.

This rule also provides an exemption

from fee payment for training programs

operated by federally recognized Indian

Tribes. As more fully described in the

proposal for this rule, EPA’s action in

exempting Tribal training programs

from the requirement to pay user fees

recognizes that Tribes are government

entities that should not be singled out

from States and local governments for

the payment of user fees.

EPA expects to develop additional

regulations addressing lead-based paint

activities for commercial and public

buildings, bridges and superstructures,

renovation and remodeling, and for the

disposal of lead-based paint debris. To

the extent EPA requires additional

accreditations or certifications pursuant

to such rules, additional fee rules may

be developed.

VI. Summary of Proposed Rule and

Public Comments

On September 2, 1998, EPA issued a

direct final rule (63 FR 46668) (FRL–

6017–8), and proposed rule (63 FR

46734) (FRL–6017–7) to establish fees

for the accreditation of training

programs and certification of contractors

engaged in lead-based paint activities

pursuant to section 402(a)(3) of the

Toxic Substances Control Act (TSCA).

As specified in section 402(a)(3), the

proposed rule would have established

fees to recover, for the U.S. Treasury,

the Agency’s cost of administering and

enforcing the standards and

requirements applicable to lead-based

paint training programs and contractors

engaged in lead-based paint activities.

Specifically, the proposal established

the fees to be charged in those States

and Indian country without authorized

programs, for training programs seeking

accreditation under 40 CFR 745.225,

and for individuals or firms engaged in

lead-based paint activities seeking

certification under 40 CFR 745.226.
31094 Federal Register / Vol. 64, No. 110 /Wednesday, June 9, 1999 /Rules and Regulations

In response to the proposal, EPA

received 23 letters from the public

during the comment period. On October

16, 1998, EPA announced that it was

withdrawing the direct final rule and

acting on the proposed rule (63 FR

55547) (FRL–6040–1). The Fees for

Accreditation of Training Programs and

Certification of Lead-based Paint

Activities Contractors Proposal docket

(OPPTS-62158) contains the proposal,

public comments on the proposal,

material EPA has added in reply to the

public comments, and the Regulatory

Impact Analysis for the proposed and

the final rules.

As indicated above EPA received 23

comments by the close of the comment

period. The largest number of responses

was received from public health and

environmental protection departments

(32% of the responses) and lead-based

paint activities firms (32% of the

responses). Other commenters included

representatives of lead-based paint

training programs (14% of the

responses) and businesses providing

both training and consulting services

(14% of the responses). A summary of

all comments received, and EPA’s

responses, may be found in the

appropriate sections of this preamble, or

in the Response to Comments document

which is available for public review in

the TSCA Docket for this rulemaking

(see Unit II. of this preamble). The

paragraphs that follow briefly describe

some of the key concerns that were

raised by the commenters.

The majority of the comments

received raised concerns regarding the

fee levels. Specifically the concerns

include the following: (1) The fees will

be a disincentive to building a network

of qualified trainers and abatement

professionals; (2) the fees will promote

unlawful practice; (3) the fees will have

a negative impact on programs to train

low-income persons; (4) worker fees are

too high and this is magnified by

mobility issues; (5) State concerns that

the fees do not represent true cost; and

(6) the fees will increase abatement cost

and reduce the number of homes for

which lead-based paint hazards are

abated.

Several commenters raised concerns

regarding the proposed provisions

allowing fee exemptions for training

programs operated by State and local

governments, federally recognized

Indian Tribes, and nonprofit

organizations. Commenters also

addressed the proposed rule’s effect on

small business, the multi-jurisdiction

registration fee, the proposed one-time

firm certification fee, and the

inconsistency of inspector and risk

assessor fees.

Importantly, EPA received no

comments which questioned the overall

program cost or the manner in which it

was derived.

VII. Final Rule Provisions

In light of the public’s comments, the

Agency has carefully reviewed the

proposed rulemaking and identified

areas, within the Agency’s discretion,

which have been modified in this final

rulemaking to respond to public

comments. Except for these changes,

this final rule is as proposed on

September 2, 1998. These changes are

described below.

A. Inconsistency of Risk Assessor and

Inspector Fees

A commenter notes that the Federal

fees seem to be inconsistent for risk

assessors versus inspectors. Since an

inspection can be conducted not only by

a person certified by EPA as an

inspector, but also by a person certified

by EPA as a risk assessor, it would seem

appropriate that the certification and recertification fee for the risk assessor

should be higher than the certification

and re-certification fees for the

inspector.

Upon review of risk assessor and

inspector fees, an error was identified in

the manner in which the burden

determinations were applied. This error

involved the transposition of numbers

associated with evaluation factors used

in determining the supervisor, risk

assessor, and inspector fee levels. The

Agency has recalculated the fees based

upon corrected evaluation factors with

the following result:

Lead-based Paint Activities-Individual Certification Re-certification

Inspector $400 $350

Risk assessor $520 $420

Supervisor $470 $390

B. Firm Fee

EPA received comments regarding the

firm fee. The commenters note that a

one-time fee collected from a firm will

do little in future fiscal years to recover

the costs associated with the firm.

Furthermore, several commenters do not

feel that the proposed fee is adequate to

recover costs.

The Agency evaluated the one-time

certification fee for firms and agrees that

it is inadequate to recover costs

associated with the firm in future years.

Therefore, the Agency will charge a fee

to maintain a firm’s certification of $430

every 3 years following initial

certification to recover the continuing

costs associated with the firm. This fee

will include the established fixed

amount to recover enforcement and

headquarters administrative costs along

with the cost of additional

administrative tasks associated with this

fee collection.

C. Worker Fee Levels and Worker

Mobility

EPA received comments which

expressed concern that worker fee levels

are too high. One commenter feels that

the total impact of training, certification,

and lost wages during training for

workers is cost prohibitive. Another

commenter points out that workers are

hourly wage-earners and cannot afford

the fees proposed by EPA.

Many of the commenters were also

concerned that the high fee levels are

magnified by worker mobility issues

which will further drive contracting

firms costs up. The commenters feel that

workers are hired for a particular job

and laid off at the completion of that

job. Therefore, workers tend to move

from firm to firm and even out of the

business. The commenters believe that

these costs are prohibitive for contractor

firms and make the cost of employee

attrition unmanageable.

EPA also received comments which

raised the issue that the proposed fees

would have a disproportionately

negative impact on efforts to train and

certify low-income persons from the

neighborhoods that are most impacted

by lead hazards. As one commenter

states ‘‘the fees will have a chilling

effect on community/low-income

worker training programs.’’

In response to these comments the

Agency has decided to adjust the

program cost distribution as it relates to

firms and workers. The Agency, in a
Federal Register / Vol. 64, No. 110 /Wednesday, June 9, 1999 /Rules and Regulations 31095

separate determination discussed above,

has evaluated the one-time certification

fee for firms and has determined that it

is inadequate to recover costs associated

with the firm in future years. The

Agency will charge a fee to maintain a

firms certification of $430 every 3 years

following initial certification. Therefore,

the Agency has applied the increased

revenue generated by the additional

firm fee to reduce the worker fee level.

The worker fee has decreased

approximately 22% from $360 to $280.

This $280 fee for workers provides for

a 3– or 5–year certification period based

upon the type of course completed. This

translates to an annual cost of between

$56 and $94. The worker re-certification

fee was correspondingly lowered to

$240.

D. Multi-jurisdiction Registration Fees

for Firms

A commenter noted that firms are not

assessed a multi-jurisdiction registration

fee as are individuals and training

providers.

Upon review of multi-jurisdiction

registration fees for firms, an omission

was found in the text of the proposed

rule. The Economic Analysis for the

rulemaking takes into account multijurisdiction registration for firms, the

proposed rule does not. Therefore, EPA

has modified the final rule text to

include multi-jurisdiction fee provisions

for firms.

E. Multi-jurisdiction Registration Fees

for Indian Country

EPA received comments which argue

that the accreditation and certification

fees would be a disincentive to building

a network of qualified trainers and

abatement professionals.

Upon further evaluation it was

determined that the multi-jurisdiction

registration fee may cause a negative

impact on the availability of lead

abatement services in Indian Country.

The Agency feels that the proposed

multi-jurisdiction fee may be

prohibitive and decrease the number of

individuals, firms, and training

programs willing to offer services in

Tribes.

Therefore, the Agency has decided to

change the multi-jurisdiction

registration fee by modifying how the

fee relates to Indian Tribes. Certification

and accreditation to perform lead-based

paint activities in Indian Tribes without

authorized programs will be issued

according to the boundaries established

by the 10 EPA Regions. Therefore, an

individual, firm, or training program

that is certified or accredited to provide

lead abatement services or training in

any unauthorized Indian Tribe within a

given EPA Region will be able to

provide services in all unauthorized

Indian tribes within the EPA Region.

Also, the title ‘‘multi-state registration

fee’’ in the proposed regulatory text has

been modified to ‘‘multi-jurisdiction

fee’’ to better reflect the nature of the

fee.

F. Definition of Nonprofit

EPA received a comment which

questions the adequacy of the proposed

definition of ‘‘nonprofit.’’ The

commenter states that labormanagement sponsored training

programs, which are operated as

nonprofit entities, are for the most part

not qualified under 501(c)(3) of the

Internal Revenue Service (IRS) code.

EPA notes that Subtitle C of Title X

(section 1033), amending the

Occupational Safety and Health Act of

1970, provides authority to provide

grants to nonprofit organizations

seeking to establish training programs.

That provision defines nonprofit

organizations as including colleges and

universities, joint labor-management

trust funds, states and nonprofit

government employee organizations. As

indicated, this statutory language

includes labor-management trust funds,

many of which the commenter notes

would not be eligible for fee waivers

under the proposed rule. It is the

Agency’s position that the definition of

nonprofit be refined for purposes of this

rulemaking in order to be consistent

with this related provision.

In the process of refining the

definition of nonprofit, the Agency has

determined that no single IRS tax

exempt classification or group of

classifications adequately incorporates

nonprofit training programs for

purposes of this rulemaking. Therefore,

a more general definition was developed

which enables the Agency to adequately

ensure the nonprofit status of an

organization without incorporating the

constraints of the IRS tax exemption

classifications. The revised definition

reads as follows: ‘‘Nonprofit means an

entity which has demonstrated to any

branch of the Federal Government or to

a State, municipal, tribal or territorial

government, that no part of its net

earnings inure to the benefit of any

private shareholder or individual.’’

VIII. How Do I Pay the Fees?

Each fee payment described in this

rule shall be in U.S. currency and shall

be paid by check or money order.

Individuals, firms, or training programs

shall submit fee payments in accordance

with instructions provided with the

application materials. No application

will be considered complete until

payment is made and final certification/

accreditation shall be dependent on the

payment of the applicable fees.

IX. How Can I Apply for Accreditation

or Certification?

The application requirements can be

found in 40 CFR 745.225 and 745.226.

In addition, the Agency has prepared

application packages and guidance on

applying. This material is available from

EPA through the National Lead

Information Center at 1–800–424–LEAD.

X. How Do the Regulatory Assessment

Requirements Apply to this Action?

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 is not

a ‘‘significant regulatory action’’ subject

to review by the Office of Management

and Budget (OMB). EPA has prepared

an economic analysis of the potential

impact of this action, which is estimated

to be $5.6 million over the next 5 years.

The analysis is contained in a document

entitled ‘‘Economic Analysis of the

TSCA Section 402(a)(3) Lead-Based

Paint Accreditation and Certification

Fee Rule.’’ This document is available

as a part of the public version of the

official record for this action.

B. Regulatory Flexibility Act

Pursuant to section 605(b) of the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.), the Agency hereby certifies that

this action will not have a significant

economic impact on a substantial

number of small entities. As indicated

in Unit I. of this preamble, within the

EPA-administered universe, the

potentially affected entities consist of

the following three basic types of

entities: (1) Individuals engaged in leadbased paint activities; (2) firms engaged

in lead-based paint activities; and (3)

for-profit entities providing lead-based

paint training. The potential impact of

this action on small entities within this

universe is described in Chapter 6 of the

economic analysis, as referred to in Unit

X.A. of this preamble.

In estimating the universe of

potentially impacted small entities, EPA

used the definitions provided by the

Small Business Administration (SBA).

This rule provides fee waivers for

training programs operated by State and

local governments, Indian Tribes, and

nonprofit organizations. As such, these

entities are not affected by this rule.

With regard to individuals, to the extent

that ‘‘individuals’’ are in business for

themselves, EPA considered that entity

to be a firm with one employee. The
31096 Federal Register / Vol. 64, No. 110 /Wednesday, June 9, 1999 /Rules and Regulations

analysis assumes that firms are likely to

pay all or a portion of their employee’s

certification fees. As a result, the small

entity impact analysis focuses on the

potential impacts on two distinct types

of affected entities, i.e., firms engaged in

lead-based paint activities (including

individuals in business for themselves),

and for-profit entities providing leadbased paint training.

EPA estimates that 1,541 firms

engaged in lead-based paint activities

will be certified during the first 5 years

in the EPA- administered program

universe. Using the revenue distribution

for Standard Industrial Code (SIC) 1799

and 8734, EPA estimates that

approximately 98% of these firms

qualify as ‘‘small’’ under the SBA

definition for small businesses.

However, even if the Agency assumes

that the firms pay all of the certification

fees for their employees, the impact is

still estimated to be less than 1% of

annual revenues for all of these firms.

Within the EPA-administered

program universe, EPA estimates that

there will be 52 training providers

accredited during the first 5 years in the

EPA-administered program universe. Of

the 52, only 60% (31) of these training

providers are estimated to be for-profit

entities that will be required to pay a

fee. Using the revenue distribution for

SIC 1799, EPA estimates that virtually

all of these for-profit training providers

qualify as ‘‘small’’ under the SBA

definition of small business. Although it

is estimated that 12 of these 31 fee

paying for-profit training providers may

incur impacts that are slightly higher

than 3% of their revenue, the data also

suggest that these for-profit training

providers have greater revenues than the

SIC 1799 revenue distribution suggests.

For example, using the revenue

distribution of Massachusetts and Ohio

training providers, only 1 of the 31 forprofit training providers is estimated to

have a potential impact of greater than

1% of annual sales.

As indicated above, additional details

regarding the Agency’s basis for this

certification are presented in Chapter 6

of the economic analysis, which is

included in the public version of the

official record for this action. In

addition, information relating to this

determination will be provided to the

Chief Counsel for Advocacy of the Small

Business Administration upon request.

C. Paperwork Reduction Act

This regulatory action does not

contain any information collection

requirements that require additional

approval by the Office of Management

and Budget (OMB) under the Paperwork

Reduction Act (PRA), 44 U.S.C. 3501 et

seq. The information collection

referenced in this rule (i.e., those

included in 40 CFR 745.238) have

already been approved by OMB under

control number 2070–0155 (EPA ICR

#1715.02). This rule does not have any

impact on the existing burden estimate

or collection description, such that

additional approval by OMB is

necessary.

The existing Information Collection

Request (ICR), identified as EPA ICR

1715.02, identifies and quantifies the

burden associated with the submission

of applications by individuals, firms,

and training programs. The burden

estimates are based on the following

required submissions:

1. Firms. A certification letter.

2. Training program. An application

which includes the following: (i) The

training programs name, address, and

telephone number, (ii) a list of courses

for which it is applying for

accreditation, (iii) a statement signed by

the training program manager that

clearly indicates how the training

program meets the minimum

requirement for accreditation, or a

statement that indicates that the training

program will use the EPA-developed

curriculum if available, (iv) a copy of

the course test, a description of the

activities and procedures for conducting

the assessment of hands on skills, and

a description of the facilities and

equipment for lecture and hands on

training, and (v) a quality control plan,

which outlines procedures for periodic

revision of training materials and

exams, annual reviews of instructors,

and adequacy of training facilities.

3. Individuals. For supervisors, risk

assessors, and inspectors an application

which includes the submission of proof

of: (i) Completion of an accredited

training course, (ii) passing the course

test, (iii) meeting the educational and/or

experience requirements (if applicable),

and (iv) passing the third party exam.

For project designers and abatement

workers an application which includes

submission of proof of: completion of a

training course, passing the course test,

and meeting educational and/or

experience requirements (if applicable).

Under the PRA, ‘‘burden’’ means the

total time, effort, or financial resources

expended by persons to generate,

maintain, retain, or 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.

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, after

initial publication in the Federal

Register, are maintained in a list at 40

CFR part 9.

Comments on the Agency’s need for

this information, the accuracy of the

provided burden estimates, and any

suggested methods for minimizing

applicant burden, including through the

use of automated collection techniques,

may be submitted to the person listed in

the ‘‘FOR FURTHER INFORMATION

CONTACT’’ section at the beginning of

this document, with a copy to the Office

of Information and Regulatory Affairs,

Office of Management and Budget, 725

17th St., NW., Washington, DC 20503,

marked ‘‘Attention: Desk Officer for

EPA.’’ Please remember to include the

ICR number in any correspondence.

D. Unfunded Mandates Reform Act

(UMRA)

Pursuant to Title II of the Unfunded

Mandates Reform Act of 1995 (UMRA)

(Pub. L. 104–4), EPA has determined

that this regulatory action is not subject

to the requirements of sections 202 and

205. This rule is not expected to result

in expenditures of $100 million or more

in any given year for State, local and

Tribal governments, in the aggregate, or

for the private sector. 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 Orders 12875

Under Executive Order 12875,

entitled ‘‘Enhancing Intergovernmental

Partnerships’’ (58 FR 58093, October 28,

1993), EPA may not issue a regulation

that is not required by statute and that

creates a mandate upon a State, local or

tribal government, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by those governments. If

the mandate is unfunded, EPA must

provide to OMB a description of the

extent of EPA’s prior consultation with

representatives of affected State, local

and tribal governments, the nature of

their concerns, copies of any written

communications from the governments,
Federal Register / Vol. 64, No. 110 /Wednesday, June 9, 1999 /Rules and Regulations 31097

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 12875 requires EPA to

develop an effective process permitting

elected officials and other

representatives of State, local and tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory proposals containing

significant unfunded mandates.’’

Today’s rule does not create an

unfunded Federal mandate on State,

local or tribal governments. The rule

does not impose any enforceable duties

on these entities. Accordingly, the

requirements of section 1(a) of

Executive Order 12875 do not apply to

this rule.

F. Executive Order 13084

Under Executive Order 13084,

entitled ‘‘Consultation and Coordination

with Indian Tribal Governments’’ (63 FR

27655, May 19, 1998), EPA may not

issue a regulation that is not required by

statute, that significantly or uniquely

affects the communities of Indian tribal

governments, and that imposes

substantial direct compliance costs on

those communities, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments. If the mandate is

unfunded, EPA must provide OMB, in

a separately identified section of the

preamble to the rule, a description of

the extent of EPA’s prior consultation

with representatives of affected tribal

governments, a summary of the nature

of their concerns, and a statement

supporting the need to issue the

regulation. In addition, Executive Order

13084 requires EPA to develop an

effective process permitting elected and

other representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

Today’s rule does not significantly or

uniquely affect the communities of

Indian tribal governments. Accordingly,

the requirements of section 3(b) of

Executive Order 13084 do not apply to

this rule.

G. 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), the Agency 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. The Agency’s

analysis determined that the fees are not

likely to cause disproportionate impacts

for minority or low-income populations.

The cost of the fees, even if passed on

to consumers, is a small fraction of the

cost of lead hazard evaluation and

abatement projects. Thus, the

establishment of these fees is not likely

to result in fewer lead hazard evaluation

or abatement activities. In addition,

EPA, HUD, and State and local

organizations have developed programs

to help disadvantaged communities

respond to lead risks.

H. Executive Order 13045

Executive Order 13045 applies to any

rule that EPA determines (1) is

economically significant as defined

under Executive Order 12866, and (2)

addresses an environmental health or

safety risk that has a disproportionate

effect on children. If the regulatory

action meets both criteria, the Agency

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 the

Agency. EPA has determined that 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 X.A.

of this preamble). Furthermore,

although this 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 a user fee

schedule and does not address

environmental health or safety risk.

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), Pub. L. 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,

business practices, etc.) that are

developed or adopted by voluntary

consensus standards bodies. The

NTTAA requires EPA to provide

Congress, through OMB, explanations

when the Agency decides not to use

available and applicable voluntary

consensus standards.

J. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

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 to 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: May 28, 1999.

Carol M. Browner,

Administrator.

Therefore, 40 CFR part 745 is

amended as follows:

PART 745— [AMENDED]

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.

2. In § 745.223 by adding the

following three new definitions in

alphabetical order to read as follows:

§ 745.223 Definitions.

* * * * *

Local government means a county,

city, town, borough, parish, district,

association, or other public body

(including an agency comprised of two

or more of the foregoing entities) created

under State law.

* * * * *

Nonprofit means an entity which has

demonstrated to any branch of the

Federal Government or to a State,

municipal, tribal or territorial

government, that no part of its net

earnings inure to the benefit of any

private shareholder or individual.

* * * * *

State means any State of the United

States, the District of Columbia, the

Commonwealth of Puerto Rico, the

Virgin Islands, Guam, the Canal Zone,

American Samoa, the Northern Mariana

Islands, or any other territory or

possession of the United States.
31098 Federal Register / Vol. 64, No. 110 /Wednesday, June 9, 1999 /Rules and Regulations

* * * * *

3. In § 745.225 by adding paragraphs

(b)(4) and (f)(3)(v) to read as follows:

§ 745.225 Accreditation of training

programs: target housing and childoccupied facilities.

* * * * *

(b) * * *

(4) A training program applying for

accreditation must submit the

appropriate fees in accordance with

§ 745.238.

* * * * *

(f) * * *

(3) * * *

(v) A payment of appropriate fees in

accordance with § 745.238.

* * * * *

4. In § 745.226 by adding paragraphs

(a)(6), (e)(3), (f)(6), and (f)(7) to read as

follows:

§ 745.226 Certification of individuals and

firms engaged in lead-based paint

activities: target housing and childoccupied facilities.

* * * * *

(a) * * *

(6) Individuals applying for

certification must submit the

appropriate fees in accordance with

§ 745.238.

* * * * *

(e) * * *

(3) Individuals applying for recertification must submit the

appropriate fees in accordance with

§ 745.238.

* * * * *

(f) * * *

(6) Firms applying for certification

must submit the appropriate fees in

accordance with § 745.238.

(7) To maintain certification a firm

shall submit appropriate fees in

accordance with § 745.238 every 3

years.

* * * * *

5. By adding § 745.238 to read as

follows:

§ 745.238 Fees for accreditation and

certification of lead-based paint activities.

(a) Purpose. To establish and impose

fees for certified individuals and firms

engaged in lead-based paint activities

and persons operating accredited

training programs under section 402(a)

of the Toxic Substances Control Act

(TSCA).

(b) Persons who must pay fees. Fees

in accordance with paragraph (c) of this

section must be paid by:

(1) Training programs. (i) All nonexempt training programs applying to

EPA for the accreditation and reaccreditation of training programs in

one or more of the following disciplines:

inspector, risk assessor, supervisor,

project designer, abatement worker.

(ii) Exemptions. No fee shall be

imposed on any training program

operated by a State, federally recognized

Indian Tribe, local government, or

nonprofit organization. This exemption

does not apply to the certification of

firms or individuals.

(2) Firms and individuals. All firms

and individuals seeking certification

and re-certification from EPA to engage

in lead-based paint activities in one or

more of the following disciplines:

inspector, risk assessor, supervisor,

project designer, abatement worker.

(c) Fee amounts—(1) Certification and

accreditation fees. Initial and renewal

certification and accreditation fees are

specified in the following table:

Certification and Accreditation Fee Levels

Training Program Accreditation1 Re-accreditation1 [every 4 years, see

40 CFR 745.225(f)(1) for details]

Initial Course

Inspector $2,500 $1,600

Risk assessor $1,760 $1,150

Supervisor $3,250 $2,050

Worker $1,760 $1,150

Project designer $1,010 $710

Refresher Course

Inspector $1,010 $710

Risk assessor $1,010 $710

Supervisor $1,010 $710

Worker $1,010 $710

Project designer $640 $490

Lead-based Paint Activities-Individual Certification1 Re-certification1 [every 3 or 5 years,

see 40 CFR 745.226(e)(1) for details]

Inspector $400 $350

Risk assessor $520 $420

Supervisor $470 $390

Worker $280 $240

Project designer $470 $390

Lead-based Paint Activities-Firm Certification1 Certification Renewal1 [every 3 years,

see 40 CFR 745.226(f)(7) for details]

Firm $540 $430

1Fees will be adjusted periodically based on adjustments accounting for changes in participation and operating costs.
Federal Register / Vol. 64, No. 110 /Wednesday, June 9, 1999 /Rules and Regulations 31099

(2) Certification examination fee.

Individuals required to take a

certification exam in accordance with

§ 745.226 will be assessed a fee of $70

for each exam attempt.

(3) Multi-jurisdiction registration fee.

An individual, firm, or training program

certified or accredited by EPA may wish

to provide training or perform leadbased paint activities in additional EPAadministered jurisdictions. A fee of $35

per discipline will be assessed for each

additional EPA-administered

jurisdiction in which an individual,

firm, or training program applies for

certification/re-certification or

accreditation/re-accreditation. For

purposes of this multi-jurisdiction

registration fee, an EPA-administered

jurisdiction is either an individual state

without an authorized program or all

Indian Tribes without authorized

programs that are within a given EPA

Region.

(4) Lost identification card or

certificate. A $15 fee shall be charged

for replacement of an identification card

or certificate. (See replacement

procedure in paragraph (e) of this

section.)

(d) Application/payment procedure—

(1) Certification and re-certification in

one or more EPA-administered

jurisdiction— (i) Individuals. Submit a

completed application (titled

‘‘Application for Individuals to Conduct

Lead-based Paint Activities’’), the

materials described at § 745.226, and the

application fee(s) described in

paragraph (c) of this section.

(ii) Firms. Submit a completed

application (titled ‘‘Application for

Firms to Conduct Lead-based Paint

Activities’’), the materials described at

§ 745.226, and the application fee(s)

described in paragraph (c) of this

section.

(2) Accreditation and re-accreditation

in one or more EPA-administered

jurisdiction. Submit a completed

application (titled ‘‘Accreditation

Application for Training Programs’’),

the materials described at § 745.225, and

the application fee described in

paragraph (c) of this section.

(3) Application forms. Application

forms and instructions can be obtained

from the National Lead Information

Center at: 1–800–424–LEAD.

(e) Identification card replacement

and certificate replacement. (1) Parties

seeking identification card or certificate

replacement shall complete the

applicable portions of the appropriate

application in accordance with the

instructions provided. The appropriate

applications are:

(i) Individuals. ‘‘Application for

Individuals to Conduct Lead-based

Paint Activities.’’

(ii) Firms. ‘‘Application for Firms to

Conduct Lead-based Paint Activities.’’

(iii) Training programs.

‘‘Accreditation Application for Training

Programs.’’

(2) Submit application and payment

in the amount specified in paragraph

(c)(4) of this section in accordance with

the instructions provided with the

application package.

(f) Adjustment of fees. (1) EPA will

collect fees reflecting the costs

associated with the administration and

enforcement of subpart L of this part

with the exception of costs associated

with the accreditation of training

programs operated by a State, federally

recognized Indian Tribe, local

government, and nonprofit organization.

In order to do this, EPA will

periodically adjust the fees to reflect

changed economic conditions.

(2) The fees will be evaluated based

on the cost to administer and enforce

the program, and the number of

applicants. New fee schedules will be

published in the Federal Register.

(g) Failure to remit a fee. (1) EPA will

not provide certification, recertification, accreditation, or reaccreditation for any individual, firm, or

training program which does not remit

fees described in paragraph (c) of this

section in accordance with the

procedures specified in paragraph (d) of

this section.

(2) EPA will not replace identification

cards or certificates for any individual,

firm, or training program which does

not remit fees described in paragraph (c)

of this section in accordance with the

procedures specified in paragraph (e) of

this section.

[FR Doc. 99–14597 Filed 6–8–99; 8:45 am]

BILLING CODE 6560–50–F