federal register

29907

Monday

June 1, 1998

Part XV

Environmental

Protection Agency

40 CFR Part 745

Lead; Requirements for Hazard Education

Before Renovation of Target Housing;

Final Rule
29908 Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 745

[OPPTS–62131; FRL–5751–7]

RIN 2070–AC65

Lead; Requirements for Hazard

Education Before Renovation of Target

Housing

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This rule requires certain

persons who perform renovations of

target housing (as defined under 40 CFR

745.103) for compensation to provide a

lead hazard information pamphlet to

owners and occupants of such housing

prior to commencing the renovation, as

stipulated by section 406(b) of the Toxic

Substances Control Act. In addition, this

rule requires notification on the nature

of the renovation activities in certain

circumstances involving multi-family

housing. This rule ensures that owners

and occupants of target housing are

provided information concerning

potential hazards of lead-based paint

exposure before certain renovations are

begun on that housing. In addition to

providing general information on the

health hazards associated with exposure

to lead, the lead hazard information

pamphlet advises owners and occupants

to take appropriate precautions to avoid

exposure to lead-contaminated dust and

lead-based paint debris that are

sometimes generated during

renovations. The Agency believes that

the distribution of the pamphlet will

help to reduce the exposures which

cause serious lead poisonings,

especially in children under age 6, who

are particularly susceptible to the

hazards of lead. This rule was proposed

in the Federal Register of March 9,

1994.

DATES: The requirements in this final

rule shall take effect on June 1, 1999. In

accordance with 40 CFR 23.5, this rule

shall be promulgated for purposes of

judicial review at 1 p.m. Eastern

Daylight Savings Time on June 1, 1998.

FOR FURTHER INFORMATION CONTACT: For

general information or to obtain copies

of the final rule (or other documents

mentioned as available in this rule),

contact the National Lead Information

Clearinghouse at 1-800-424-LEAD. For

technical information contact: Dayton

Eckerson, National Program Chemicals

Division (7404), Office of Pollution

Prevention and Toxics, Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 20460, Telephone: 202-

260-1591, e-mail:

eckerson.dayton@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Regulated Entities

Potentially regulated entities under

this rule are any person(s) who perform

renovations of target housing for

compensation. Target housing is defined

(see 40 CFR 745.103) as any housing

constructed prior to 1978, except

housing for the elderly or persons with

disabilities (unless any child who is less

than 6 years of age resides or is expected

to reside in such housing) or any 0-

bedroom dwelling pursuant to 40 CFR

745.103. Regulated categories and

entities include:

Category Examples of Regulated Entities

Renovators • General Building Contractors/Operative Builders [Renovation firms, Individual Contractors, etc.]

• Special Trade Contractors

[Carpenters, Painters,

Drywall workers and lathers,

‘‘Home Improvement’’ Contractors, etc.]

Multi-family

Housing

Property Management Firms

Owners/

Managers

Some Landlords

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this action. Other types of

entities not listed in this table could

also be regulated. To determine whether

you or your business is regulated by this

action, you should carefully examine

the applicability provisions in § 745.82

of the rule. If you have any questions

regarding the applicability of this action

to a particular entity, consult the person

listed in the ‘‘FOR FURTHER

INFORMATION CONTACT’’ section.

II. Authority

This final rule is issued under the

authority of section 406(b) of the Toxic

Substances Control Act (TSCA), 15

U.S.C. 2686(b). In 1992, TSCA was

amended by section 1021 of the

Residential Lead-Based Paint Hazard

Reduction Act of 1992 to add Title IV,

entitled Lead Exposure Reduction. The

Residential Lead-Based Paint Hazard

Reduction Act is also referred to as Title

X of the Housing and Community

Development Act of 1992, Pub. L. 102-

550.

III. Background

A. Legislative and Statutory Background

Congress passed Title X to address the

need to control exposure to lead-based

paint hazards. Title X establishes the

infrastructure and standards necessary

to reduce lead-based paint hazards in

housing. Congress recognized that lead

poisoning is a particular threat to

children under age 6, and emphasized

the needs of this vulnerable population

within the various sections of Title X.

Section 1021 of Title X amends TSCA

(15 U.S.C. 2601, et seq.) by adding a

Title IV, entitled ‘‘Lead Exposure

Reduction.’’

This rule is issued under the authority

of section 406(b) of Title IV of TSCA,

and is intended to provide information

to owners and occupants of target

housing that will allow these

individuals to avoid exposure to leadcontaminated dust and lead-based paint

debris which are sometimes generated

during renovations of housing with

lead-based paint. Since children under

the age of 6 are especially susceptible to

the hazards of lead, those owners and

occupants with children can take action

to protect their children from lead

poisonings. Section 406(b) requires EPA

to promulgate regulations requiring

certain persons who perform

renovations of target housing for

compensation to provide a lead hazard

information pamphlet (developed under

section 406(a) of TSCA) to the owner

and occupant of such housing prior to

commencing the renovation. Target

housing is defined in section 401(17) of

TSCA, 15 U.S.C. 2681. Those who fail

to provide the pamphlet as required

may be subject to both civil and

criminal sanctions under section 16 of

TSCA.

This regulation represents one piece

of a broad range of interrelated lead

exposure reduction activities mandated

under Title X. Many of these activities

supported and affected the development

of the section 406(b) regulations. Below

is a discussion of several related

provisions of Title X which provide the

context for many of the decisions made

during the development of this rule.

The provision most closely tied to

section 406(b) is section 406(a) of TSCA.

Section 406(a) directs EPA to develop

and publish, after notice and comment,

an information pamphlet on lead and

the hazards of exposure to lead-based

paint in the home. The Consumer

Product Safety Commission (CPSC)

joined EPA in co-sponsoring the

pamphlet’s development in consultation

with the Department of Housing and

Urban Development (HUD) and the

Centers for Disease Control and
Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations 29909

Prevention (CDC). EPA issued a draft of

the pamphlet for public review on

March 9, 1994 (59 FR 11119) (FRL-4642-

7). After addressing comments received

from the public and other Federal

Agencies, EPA announced the final

pamphlet’s availability in the Federal

Register of August 1, 1995 (60 FR

39167) (FRL-4966-6).

In addition to outlining the health

effects and symptoms of lead exposure,

section 406(a) requires that this

pamphlet: Contain information on the

potential hazards of renovating

dwellings containing lead-based paint;

recommend that an inspection or risk

assessment for lead-based paint be

performed before beginning renovations

in target housing; suggest precautionary

measures for protecting occupants

during renovations in homes containing

lead-based paint; and identify Federal,

State, and local sources of information

on lead and lead-based paint.

Two sections of Title X also require

the dissemination of the lead hazard

information pamphlet developed

pursuant to section 406(a) of TSCA.

First, section 1018 of Title X requires

EPA and HUD to promulgate joint

regulations for disclosure of certain

information concerning lead-based paint

and lead-based paint hazards by persons

offering to sell or lease target housing.

The section 1018 regulations include

the requirement that the sellers and

lessors provide the lead hazard

information pamphlet to prospective

purchasers or lessees. EPA and HUD

issued the final regulations

implementing section 1018 in the

Federal Register of March 6, 1996 (61

FR 9064) (FRL–5347–9).

Second, section 1012 amends section

302 of the Lead-Based Paint Poisoning

Prevention Act (42 U.S.C. 4822) to

require that the lead hazard information

pamphlet be provided to purchasers and

tenants of housing receiving assistance

under a program administered by the

Secretary of HUD, or otherwise

receiving more than $5,000 in projectbased assistance under a Federal

housing program. HUD issued the

proposed section 1012 rule on June 7,

1996 (61 FR 29170) (FRL-3482-P-01).

Under section 403 of TSCA, EPA is

charged with refining the general

definitions of ‘‘lead-based paint

hazards,’’ ‘‘lead-contaminated dust,’’

and ‘‘lead-contaminated soil’’ which are

listed in section 401 of TSCA. On

September 11, 1995 (60 FR 47248) (FRL4969-6), EPA issued an interim

guidance document for risk assessors

and managers to aid in the identification

and prioritization for control of lead

hazards until the final section 403

definitions are issued. EPA is currently

in the process of developing the section

403 definitions.

EPA has developed this rule to

function independently of the lead

hazard definitions to be developed

under section 403. Under this final rule,

EPA has eliminated the linkage of the

definition of ‘‘renovation’’ to whether or

not lead-based paint hazards are

expected to occur as a result of the

renovation activity. Instead, the

definition of ‘‘renovation’’ has been

simplified to focus on activities that

disturb painted surfaces in target

housing. It is discussed further in Unit

V.D. of this preamble. Therefore, this

rule under section 406(b) would require

renovators to perform pre-renovation

notification for all renovation activities

performed for compensation in target

housing, unless specifically exempted

by § 745.82 of the regulatory text.

Section 402(a) of TSCA directs EPA

(in consultation with HUD, the

Department of Labor, and the

Department of Health and Human

Services (HHS)) to promulgate

regulations on accreditation of training

programs and the certification of

individuals and contractors engaging in

lead-based paint activities. Section

402(a) also requires that EPA, in

consultation with the aforementioned

agencies, develop standards for the

performance of lead-based paint

activities (including lead inspections

and risk assessments). EPA issued the

proposed section 402 rule on September

2, 1994 (59 FR 45872) (FRL–4633–9),

and the final rule on August 29, 1996

(61 FR 45778) (FRL–5389–9).

Section 402(c)(1) of TSCA directs EPA

to issue guidelines for the conduct of

renovation and remodeling activities

which may create a risk of exposure to

dangerous levels of lead when

performed in target housing, public

buildings constructed before 1978, and

commercial buildings. EPA released its

final guidelines for renovation and

remodeling, entitled Reducing Lead

Hazards When Remodeling Your Home

in April 1994 (revised in September

1997), and has made the guidelines

available through the National Lead

Information Clearinghouse (NLIC).

Section 402(c)(2) of TSCA directs EPA

to conduct a study of the lead hazards

generated during different types of

renovation and remodeling activities.

Section 402(c)(3) of TSCA directs EPA

to use the results of the renovation

study, along with other information, to

determine which renovation and

remodeling activities should be

regulated as lead-based paint activities,

based on potential hazards generated

during their performance.

Section 404 of TSCA directs EPA to

develop an application process for those

States (which EPA has interpreted to

include Tribes) that seek to administer

and enforce the standards, regulations,

and requirements established under

sections 402 and 406. Section 404 also

directs EPA to develop and issue a

Model State Program for use by States

and Tribes pursuing authorization

under these provisions. EPA proposed

the authorization process and the Model

State Program for States and Tribes, in

conjunction with the proposed rule for

section 402, in the September 2, 1994

Federal Register. The section 404 rule

was also published on August 29, 1996,

in final form.

Pursuant to section 1015 of Title X,

HUD established a Task Force on LeadBased Paint Hazard Reduction and

Financing made up of private and

public organizations. The Task Force,

representing the spectrum of interests

affected by the lead-based paint issue,

released final recommendations on

evaluating and reducing lead-based

paint hazards in private housing on July

11, 1995, in a report entitled Putting the

Pieces Together: Controlling Lead

Hazards in the Nation’s Housing

(Copies of this report can be acquired by

contacting the NLIC at 1-800-424-

LEAD). These recommendations have

been considered in the development of

this final rule.

Pursuant to section 1017 of Title X,

HUD, in cooperation with EPA and

other Federal agencies, has revised its

guidelines for lead-based paint hazard

evaluation and reduction activities. The

revised document, entitled Guidelines

for the Evaluation and Control of LeadBased Paint Hazards in Housing, was

released to the public in June 1995. A

copy of the guidelines is included in the

public record for this rule.

B. Lead Poisoning in the United States

Lead affects virtually every system of

the body. While it is harmful to

individuals of all ages, lead exposure

can be especially damaging to children,

fetuses, and women of childbearing age.

As recent studies have identified

previously unrecognized effects, there

has been increasing concern about

blood-lead levels once thought to be

safe. Since 1978, CDC has lowered the

blood-lead level of concern from 60 μg/

dL (micrograms/deciliter) to 10 μg/dL

(Ref. 2).

Lead poisoning has been called ‘‘the

silent disease’’ because its effects may

occur gradually and imperceptibly,

often showing no obvious symtoms.

Chronic blood-lead levels as low as 10

μg/dl have been associated with

learning disabilities, growth
29910 Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations

impairment, permanent hearing and

visual impairment, and other damage to

the brain and nervous system. In large

doses, lead exposure can cause

blindness, brain damage, convulsions,

and even death. Lead exposure before or

during pregnancy can also alter fetal

development and cause miscarriages.

In 1991, the Secretary of HHS

characterized lead poisoning as the

‘‘number one environmental threat to

the health of children in the United

States’’ (Ref. 2). The percentage of

children under 6 years of age with

elevated blood-lead levels has declined

over the last 20 years. Recent results

from the Third National Health and

Nutrition Examination Survey

(NHANES III, Phase 2) indicate that the

average child’s blood-lead level has

declined from 12.8 μg/dL to 2.7 μg/dL

(Ref. 9a). However, about 800,000

children under the age of 6 (4.2% of

children at that age) still had blood-lead

levels above CDC’s 10 μg/dL level of

concern (Refs. 9 and 9b).

C. Hazards From Past Uses of LeadBased Paint

Efforts to reduce exposure to lead

from sources like gasoline and food cans

have played a large role in the past

reductions of blood-lead levels in the

United States. Despite these successes, a

significant human health hazard

remains due to improperly managed

lead-based paint. From the turn of the

century through the 1940’s, paint

manufacturers used lead as a primary

ingredient in many oil-based interior

and exterior house paints. Usage

gradually decreased through the 1950’s

and 1960’s, as largely lead-free latex

paints became more popular. Although

CPSC banned lead-based paints from

residential use in 1978 (currently, paints

may not have greater than 0.06% lead

by weight (Ref. 3)), EPA and HUD

estimate that 83% of the privatelyowned housing units built in the United

States before 1980 contain some leadbased paint. By these estimations,

approximately 64 million homes

contain lead-based paint which may

pose a hazard to the occupants (Ref. 4).

Lead from exterior house paint can

flake off or leach into the soil around

the outside of a home, contaminating

children’s playing areas. Dust caused

during normal lead-based paint wear

(especially around windows and doors)

can create an imperceptible film over

surfaces in a house. In some cases,

cleaning and renovation activities can

increase the threat of lead-based paint

exposure by dispersing fine lead dust

particles into the air and over accessible

household surfaces. If dust is managed

improperly, both adults and children

could receive hazardous exposures to

lead by inhaling the fine dust or by

ingesting paint-dust during hand-tomouth activities. Children under age 6

are especially susceptible to lead

poisoning (Ref. 2).

IV. Summary of Proposed Rule and

Public Comments

On March 9, 1994 (59 FR 11108), EPA

issued proposed regulations that would

require renovators to provide a lead

hazard information pamphlet to owners

and occupants of target housing before

beginning renovations, and notification

on the nature of the renovation activities

in certain circumstances involving

multi-family housing. The housing that

EPA proposed to cover by the regulation

included all housing built before 1978

with the exception of 0-bedroom

dwellings and housing for the elderly

and persons with disabilities wherein

no child under 6 years of age resides or

is expected to reside. EPA’s proposal

provided flexibility for renovations

conducted in common areas (like

stairways, lobbies, and hallways) of

buildings. EPA requested comments

concerning the proposed rule,

specifically on the definition of

‘‘renovation’’ and identifying renovation

activities that should be covered under

the rule.

By the close of the comment period,

May 9, 1994, EPA had received 30

comments. The largest number of

responses was received from public

health and environmental protection

departments (27% of the responses) and

organizations involved with building

and development (27% of the

responses). Other commenters included

representatives from advocacy groups

(23% of the responses) and the real

estate industry (10% of the responses).

Approximately 10% of the responses

came from a combination of Federal

agencies, State agencies, and concerned

private citizens. 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 VIII. 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 concerned the term

‘‘renovation.’’ Commenters requested

clarification so as to differentiate

between work that would be considered

renovation and that categorized as

repair and maintenance. Concerns were

expressed regarding flexibility in

addressing emergency situations where

the need for a rapid response conflicted

with the ability to provide the pamphlet

to the owner and occupant of the target

housing to be renovated. Over half of

the comments concerning renovation

specifically addressed the proposed

alternative approaches for defining

renovations: modeling the definition

after the asbestos program, listing

specific activities of concern, using the

Occupational Safety and Health

Administration (OSHA) list of

construction activities, identifying

specific job classifications, identifying

specific cost ranges, or specifying the

size of the home improvement activity.

Numerous comments concerned other

definitions in the proposed rule such as

‘‘person,’’ ‘‘lead-based paint hazard,’’

and ‘‘target housing.’’ Commenters also

addressed the proposed rule’s

applicability to multi-family housing,

the actual mechanisms for pamphlet

distribution, and the corresponding

acknowledgment requirement. A few

comments concerned the burden of the

rule on the regulated industry, the

overall scope of the rule, and its

projected cost.

EPA received no comments on the

section of the rule establishing a

procedure for the submission of

confidential business information.

V. Final Rule Provisions

In light of the public’s comments, the

Agency has striven to ensure that this

rule is clear, understandable, flexible,

achieves the statutory objective while

imposing the minimum burden, and is

consistent with other Federal activities.

These goals are important to assure

quick and widespread implementation

of and compliance with the rule.

A. Scope and Purpose

The scope, purpose, and applicability

sections of the rule have been modified

to more clearly reflect who is

responsible for providing lead hazard

information, who is to receive this

information, the nature of that

information, and the rule’s authority.

B. Date of the Rule

EPA received a comment suggesting

that the effective date of the rule be

immediate. However, EPA believes that

the rule’s effective implementation

requires an informed and prepared

general public and regulated

community. EPA has concluded that a

phase-in period of 1 year is necessary to

provide adequate time for parties to

become familiar with the rule

requirements and to set up procedures

for compliance.
Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations 29911

C. Applicability

EPA requested comments on six

approaches being considered for

describing the activities encompassed

by the term ‘‘renovation.’’ Most of the

numerous comments received on this

topic requested further clarification and

additional guidance in determining

which types of home improvement,

maintenance, and repair activities

would be classified as renovations for

purposes of the rule. Commenters

requested more specific criteria to

facilitate differentiation between a

renovation activity and routine

maintenance or repair. One commenter

suggested that modeling the definition

of regulated activities under this rule

after EPA’s Asbestos Program (which

used both the Standard Industrial

Classification (SIC) codes and the OSHA

list of construction tasks) would result

in the inclusion of too broad a range of

activities.

Based on the responses received from

commenters, EPA determined that both

the SIC codes and the OSHA list of

construction tasks lacked the specificity

necessary to aid EPA in developing its

list of regulated renovation activities.

The OSHA list was developed to

address a far broader range of

construction tasks than should be

regulated under section 406(b); likewise,

using SIC codes as a way of creating

worker categories was determined to be

inadequate in capturing the appropriate

spectrum of activities.

In general, commenters also suggested

that neither cost nor the overall size of

the work was a valid criterion for

determining exposure to lead-based

paint hazards and indicating risk. EPA

agrees, and has also determined that a

de minimis cost level would be difficult

to interpret, especially when

compensation was provided in nonmonetary terms or when such activities

were part of a larger service or

maintenance agreement.

After careful review of the comments

on these proposed approaches, EPA has

decided to define renovation by

focusing on the potential disruption of

paint (the key source of exposure that

may occur during renovation). One

commenter voiced specific concerns

that the proposed approach to defining

renovation was too broad and suggested

that EPA focus on activities that are

likely to generate a risk of lead

exposure. In response to that and other

comments, EPA modified the definition

to include all renovation activities

except those which do not disturb

painted surfaces.

EPA recognizes that it is necessary to

distinguish between renovation

activities and those minor activities that

are required during the maintenance of

a residence. EPA believes that requiring

maintenance workers to distribute

hazard information during the

implementation of regular tasks would

pose an undue burden on owners and

their staffs. A 2 square foot per

component de minimis level has been

adopted from the June 1995 Guidelines

for the Evaluation and Control of LeadBased Paint Hazards in Housing as a

means of differentiating between largescale renovation activity and minor

maintenance activities which pose a

lower likelihood of creating a lead

hazard. This same de minimis level has

also been used by the National Institute

of Building Sciences (NIBS) in its draft

Regulatory Models for Lead Poisoning

Prevention report. This draft report is

the result of a consensus process

involving both public (e.g., Federal and

State governments) and private (e.g.,

landlord associations, builders) sectors.

EPA believes that this revised definition

provides a common sense approach

which is consistent with standard

industry practices (as captured in the

aforementioned guidelines and the de

minimis level’s use in the NIBS report),

along with clear guidance and direction

to the regulated community, as to which

renovation activities will trigger the

requirements of this rule.

EPA recognizes that emergency

situations occur which require

renovation activities to be conducted

within a time frame precluding advance

notification. Such emergencies would

typically involve structural or

equipment failure that could lead to

endangerment to public health or

substantial property damage if not

repaired immediately. To address these

situations, EPA has included a category

of Emergency renovation operations (see

§ 745.83 of the regulatory text) that are

exempted from the requirements of this

rule.

In addition, EPA has exempted

renovations performed (in target

housing) on components that have been

determined, by an inspector (certified

pursuant to either Federal regulations at

40 CFR 745.226 or an EPA-authorized

State certification program), to be free of

paint or other surface coatings that

contain lead equal to or in excess of 1.0

milligram per square centimeter or 0.5

percent by weight (see § 745.82(b)(3) of

the regulatory text).

D. Definitions

EPA received many comments that

suggested the definitions used for this

rule retain full consistency with existing

State, local, and industry practice.

Below is a brief discussion of

definitions that apply to this rule. While

these definitions were included in the

proposed rule, most have since been

promulgated as part of related

rulemakings under Title X and Title IV

of TSCA. Only the definitions of

‘‘emergency renovation operations,’’

‘‘pamphlet,’’ ‘‘person,’’ ‘‘renovation,’’

and ‘‘renovator’’ are promulgated in this

rule. However, all definitions that were

proposed for use in this rule are

discussed below.

Common area means a portion of a

building generally accessible to all

residents/users, including, but not

limited to, hallways, stairways, laundry

and recreational rooms, playgrounds,

community centers, and boundary

fences.

This definition is unchanged from the

proposed rule and can be found in 40

CFR 745.103. Although EPA received a

comment suggesting to limit the

definition, EPA has decided to retain

the definition of common area also

being used in other regulations

mandated by Title X and Title IV of

TSCA. These other regulations require a

broader interpretation of the term (e.g.,

the inclusion of residence exteriors

within the term’s scope), and for

consistency, EPA elected to adopt a

single definition for all the rules. EPA

has concluded that this discussion of

the term’s broad interpretation should

sufficiently address commenter requests

for an explicit inclusion of renovation

work being performed upon a

residence’s exterior surfaces and

surfaces in proximity to the residence

within the rule’s notification

requirements.

However, because today’s rule affects

only residential housing, applicability

of the definition for section 406(b)

purposes is limited to common areas in

residential housing.

Emergency renovation operations

means renovation activities, such as

operations necessitated by non-routine

failures of equipment, that were not

planned but result from a sudden,

unexpected event that, if not

immediately attended to, presents a

safety or public health hazard, or

threatens equipment and/or property

with significant damage.

In the March 9, 1994 proposal, EPA

specifically requested comment on

whether the rule should include

provisions for emergency renovations

and other situations where unusual

circumstances necessitated immediate

action. EPA received a comment

indicating that this definition was too

broad. The commenter argued that only

catastrophic situations such as fire,

explosion, or imminent structural

collapse required a response so prompt
29912 Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations

as to preclude notification and that this

exemption would be subject to abuse.

EPA does not believe that emergency

renovation activities are defined only by

life-threatening situations. To ensure

that the regulation does not unduly

impair a property owner or manager’s

ability to react quickly to situations that

present a sudden hazard to public safety

or a sudden threat of significant

property damage, EPA has added a

specific exemption for emergency

renovations and has provided the above

definition. EPA has based its definition

on the language used within EPA’s

National Emission Standards for

Hazardous Air Pollutants (Asbestos) (40

CFR part 61, subpart M).

Multi-family housing means a housing

property consisting of more than four

dwelling units.

This definition is unchanged from the

proposed rule. EPA received a comment

suggesting that either this definition be

changed to accommodate housing

consisting of two, three, and four

dwelling units, or that a definition

covering that number of units be

created. EPA may propose and seek

comment on such a modification in the

near future.

Owner means any entity that has legal

title to target housing, including but not

limited to individuals, partnerships,

corporations, trusts, government

agencies, housing agencies, Indian

tribes, and nonprofit organizations,

except where a mortgagee holds legal

title to property serving as collateral for

a mortgage loan, in which case the

owner is considered the mortgagor.

EPA received a comment on the

proposed definition’s inclusion of third

party managers or representatives. The

commenter asserted that since

management agreements between

owners and third parties clearly

establish that the responsibility for all

property decisions reside with the

owners, owners should be clearly

differentiated from third party fee

property managers. EPA agrees with the

commenter. For the sake of consistency

with section 1018 of the Residential

Lead-Based Paint Hazard Reduction Act,

EPA has revised the definition (see 40

CFR 745.103) of owner to clarify its

applicability to trusts and to distinguish

between owners (mortgagor) and

mortgage lenders (mortgagees). The

definition was also revised by removing

the representative portion.

Pamphlet means the EPA pamphlet

developed under section 406(a) of TSCA

for use in complying with this and other

rulemakings under Title IV of TSCA and

the Residential Lead-Based Paint Hazard

Reduction Act, or any State or Tribal

pamphlet approved by EPA pursuant to

40 CFR 745.326 that is developed for the

same purpose. This includes

reproductions of the pamphlet when

copied in full and without revision or

deletion of material from the pamphlet

(except for the addition or revision of

State or local sources of information).

EPA added this definition to specify

and identify either the lead hazard

information pamphlet developed under

section 406(a) of TSCA or any EPAapproved State pamphlet.

Person means any natural or judicial

person including any individual,

corporation, partnership, or association;

any Indian Tribe, State or political

subdivision thereof; any interstate body;

and any department, agency, or

instrumentality of the Federal

Government.

EPA received several comments on

this definition regarding whether the

sovereign immunity of the United States

is waived in relation to this rule.

Congress provided such a waiver in

section 408 of TSCA. EPA modified this

definition so that it is consistent with

the definition promulgated in § 745.223.

Renovation means the modification of

any existing structure, or portion

thereof, that results in the disturbance of

painted surfaces, unless that activity is

performed as part of an abatement as

defined by this part (40 CFR 745.223).

The term renovation includes (but is not

limited to): the removal or modification

of painted surfaces or painted

components (e.g., modification of

painted doors, surface preparation

activity (such as sanding, scraping, or

other such activities that may generate

paint dust)); the removal of large

structures (e.g., walls, ceiling, large

surface replastering, major replumbing); and window replacement.

EPA requested and received many

comments on the proposed definition.

EPA agrees with the commenters who

stated that the proposed definition did

not provide adequate guidance in

defining a regulated transaction. EPA

has, therefore, revised the definition to

remove the unclear references to hazard

levels involved in the activities,

believing that it is not appropriate to

expect each potential renovator to

determine what is and what is not a

‘‘hazardous’’ activity. Instead, EPA has

developed a definition that focuses on

disturbance of paint, the key source of

exposure that may occur during

renovations.

Further, EPA has added an

applicability section (§ 745.82) that lists

activities that are excluded. This section

excludes emergency renovations and

renovation activities that pose little

likelihood of creating lead hazards. The

specifically excluded activities are:

minor repair and maintenance activities

(including minor electrical work and

plumbing) that disrupt 2 square feet or

less of painted surface per component;

emergency renovation operations; and

renovations in target housing in which

a written determination has been made

by an inspector (certified pursuant to

either Federal regulations at § 745.226

or an EPA-authorized State certification

program) that lead-based paint is not

present in the area affected by the

renovation, where the renovator has

obtained a copy of the determination.

EPA believes that the definition,

coupled with the list of excluded

activities in the applicability section,

provides the regulated community with

a clearer direction than that provided in

the proposed rule. EPA also thinks that

the definition and applicability sections

enable this rule to cover all potentially

hazardous renovation activities and

exclude those that pose little likelihood

of disturbing significant amounts of

painted surface.

Renovator means any person who

performs for compensation a renovation.

This definition was changed from the

proposed rule by deleting the phrase ‘‘of

target housing or public buildings’’

which appeared after the term

‘‘renovation.’’ This change makes the

term ‘‘renovator’’ consistent with the

term ‘‘renovation,’’ which is not limited

to particular types of structures. Further,

because future rules issued pursuant to

section 402(c) of TSCA may apply,

regulations promulgated under section

402(a) to renovation and remodeling in

target housing, public buildings

constructed before 1978, and

commercial buildings, EPA believes the

terms ‘‘renovation’’ and ‘‘renovator’’

should be defined in such a way that

they can apply to all such structures.

This change does not affect the scope or

applicability of the rule, because the

applicability provision at § 745.82 of the

rule will limit the rule to renovations of

target housing performed for

compensation. Finally, as discussed in

the proposal, although EPA considers

that maintenance staff retained by the

owners of buildings may be considered

renovators for the purpose of this rule,

an exclusion for routine maintenance

and operations activities is provided in

the applicability section of the rule.

Residential dwelling means:

(1) A single-family dwelling,

including attached structures such as

porches and stoops; or

(2) A single-family dwelling unit in a

structure that contains more than one

separate residential dwelling unit, and

in which each such unit is used or

occupied, or intended to be used or

occupied, in whole or in part, as the
Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations 29913

home or residence of one or more

persons.

This definition, drawn from the

statute, is unchanged from the proposal

(see 40 CFR 745.103).

Target housing means any housing

constructed prior to 1978, except

housing for the elderly or persons with

disabilities (unless any child who is less

than 6 years of age resides or is expected

to reside in such housing) or any 0-

bedroom dwelling.

This definition was provided by the

statute and is unchanged (see 40 CFR

745.103).

0-Bedroom dwelling means any

residential dwelling in which the living

area is not separated from the sleeping

area. The term includes efficiencies,

studio apartments, dormitory housing,

military barracks, and rentals of

individual rooms in residential

dwellings.

This definition, which can be found

in 40 CFR 745.103, is drawn from the

HUD 1994 housing survey, as a standard

definition for 0-bedroom housing. It was

added to this rule to provide both

clarification of the term as it is used in

the definition of target housing and

consistency with the other regulations

under Title X and TSCA.

E. Lead Hazard Information Pamphlet

In the August 1, 1995 Federal

Register, EPA issued a Notice of

Availability for the lead hazard

information pamphlet entitled Protect

Your Family From Lead In Your Home.

EPA and HUD will distribute this

pamphlet under several Congressional

directives that will be implemented in

separate rulemaking initiatives,

including this rule.

The pamphlet has been made

available to the general public as well as

the regulated community. Single copies

of the pamphlet are available in both

English and Spanish from the NLIC, by

calling 1-800-424-LEAD (TDD 1-800-

526-5456). Multiple copies are available

through the Government Printing Office

(GPO), and may be ordered by calling

the GPO Order Desk at (202) 512-1800,

faxing (202) 512-2233, or writing to

Superintendent of Documents, P.O. Box

371954, Pittsburgh, PA 15250-7954.

Request the publication by title, Protect

Your Family From Lead in Your Home,

and/or GPO stock #055-000-00507-9.

The pamphlet may be reproduced

without permission from EPA or CPSC.

EPA is encouraging persons to make

their own reproductions of the

pamphlet. Persons who wish to reprint

the pamphlet may obtain negatives or

black and white reproducible copy from

the NLIC at 1-800-424-LEAD. Any

copies reproduced for use in complying

with this rule, however, must be copied

in full, and may not be revised in any

way unless those actions are meant to

add or properly reference State or local

sources of information. Also, persons

wishing to reprint the pamphlet may

attach their company name, logo, and

contact information on the back cover in

the space provided at the bottom of the

page.

In addition, EPA has developed a

program under section 404 of TSCA in

which States and Tribes may apply to

EPA for authorization to develop and

distribute their own pamphlets for

compliance with this rule. That program

now allows States and Tribes that have

obtained such authorization to

substitute the State-developed pamphlet

for the Federal version for compliance

with this rule. EPA provided

preliminary approvals for pamphlet

substitutions to the States of California

and Massachusetts in August 1996.

This is a change from the proposed

section 406(b) rulemaking. The section

406(b) proposal included language

preventing State and Tribal

modification of the pamphlet. EPA has

since concluded that States and Tribes

should be able to craft their own

pamphlets so long as they include a

number of basic elements.

In anticipation of this change, EPA

included specific language in the

preamble to the section 404 rule (under

Unit I.X.) that was published August 29,

1996 (see FR 45802, 45803). That unit

describes the minimum elements that

must be present in a State or Tribal

program in order for that State or Tribe

to receive authorization from EPA (see

40 CFR 745.326). The unit also

acknowledges the need for flexibility in

the amount of detail and supplemental

information to be included in a

pamphlet for State or Tribal use. EPA

has concluded that this flexibility is

required due to the variety of particular,

local informational and communication

challenges that States and Tribes may

face.

This change makes the section 406(b)

program consistent with the rest of the

lead program under Titles IV and X.

This change also gives renovators a

greater amount of flexibility; now

renovators may choose between

disseminating the EPA pamphlet or

pamphlets crafted pursuant to section

404 (40 CFR 745.326).

EPA received comments concerning

the pamphlet emphasizing that both it

and the acknowledgment need to be

available in languages other than

English. As noted above, EPA concurred

and has made the pamphlet available in

Spanish. However, it was not

considered reasonable to require the

renovator to provide translations into

any language requested by the resident,

nor does EPA have the resources to

unilaterally develop, print, and

distribute the pamphlet in every

language represented in the United

States. EPA is pursuing the feasibility of

obtaining additional translations

through public and private partnerships.

Several private organizations are in the

midst of developing the pamphlet in

languages other than Spanish and

English. If you have any questions

concerning those efforts, consult the

parties listed in the ‘‘FOR FURTHER

INFORMATION CONTACT’’ section.

F. Information Distribution

Requirements

1. Renovations in living units. EPA’s

modifications of the proposed

information distribution requirements

provide the regulated community with

flexibility while ensuring appropriate

communication with owners and

occupants whose living units are

undergoing renovations. Commenters

expressed concerns about the proposed

provision regarding the feasibility of

requiring a signed acknowledgment

from the ‘‘head of a household,’’ noting

that it could be extremely difficult to

locate or guarantee accurate

identification of such an individual. In

the final rule, EPA permits any adult

occupant of an affected target housing

unit to acknowledge receipt of the

pamphlet.

A second concern involved using the

acknowledgment of the receipt of the

pamphlet as an indication of the owner

or occupant’s awareness of the potential

health hazards associated with

renovations that disturb lead-based

paint. Commenters indicated that a

person who has just received a

pamphlet would not have had time to

read it. He or she could not realistically

be expected to attest to any level of

comprehension of the potential risks.

EPA revised the final rule to focus

solely on acknowledging receipt of the

pamphlet.

2. Delivery requirements. EPA

received numerous comments regarding

this section. A prevalent comment

expressed concern with requiring the

renovator to obtain a signed

acknowledgment. Commenters

suggested scenarios of owners and

occupants refusing to sign the

acknowledgment or being unavailable

during normal business hours, when

such deliveries would typically occur.

Commenters stated that holding the

renovator accountable for such actions

beyond his or her control was

inappropriate.
29914 Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations

After careful consideration, and in

keeping with the goal of allowing

flexibility where appropriate, the final

rule allows the renovator several

options for distributing the pamphlet,

including personal delivery by the

renovator or a designated representative,

self-certification for unsuccessful

attempted personal deliveries, and the

option to mail the pamphlet.

The final rule permits either the

renovator or a designated representative

(such as a landlord) to deliver the

pamphlet and obtain the

acknowledgment. However, when using

a designated representative, the

renovator remains responsible for

compliance with this rule. This

provides renovators with additional

flexibility with regard to delivery, but

still ensures that they retain the

responsibility for compliance with the

rule and maintaining the appropriate

records. EPA also recognizes that there

may be situations when an adult

occupant cannot be reached or simply

refuses to sign an acknowledgment.

Under these circumstances, the

renovators, or their designee, will be

allowed to certify in writing that the

delivery was attempted, and briefly

explain what was done and why a

signed and dated acknowledgment

could not be obtained. The renovator is

nonetheless required to deliver a copy

of the pamphlet to the affected housing

unit.

Another option allows the renovator

to deliver the pamphlet by mail after

receiving some receipt or proof of

mailing. Of course, the renovator may

use more expensive methods of delivery

(e.g., certified mail, registered mail), but

obtaining a certificate of mailing from

the Post Office is the minimum

required.

Notwithstanding the renovator’s

approach, the renovator must either

have the proper documentation (i.e.,

signed and dated acknowledgment, or

self-certification) or have purchased and

received a certificate of mailing from the

Post Office at least 7 days before the

commencement of renovation activities.

3. Content of Acknowledgement

Statements. Commenters provided

suggestions as to the specific language

of the acknowledgment statements.

Several commenters suggested that the

statements include detail regarding lead

hazards and a reference to the pamphlet,

while others suggested that obtaining

acknowledgement would be overly

burdensome or cause delays in

renovation activities. After reviewing

the comments, EPA decided to delete

specific acknowledgment language from

the rule in order to reduce the burden

on the regulated community and permit

a greater degree of flexibility without

compromising the safety of owners and

occupants. However, to provide

guidance to the regulated community,

§ 745.88 has been added, offering

suggested language for

acknowledgment.

4. Renovations in common areas. The

final rule discusses target housing in

terms of dwelling units and common

areas (as would be found in multifamily housing). Pre-renovation

notification activities for renovations in

common areas differ slightly from those

in dwelling units. The main difference

is that the renovator is not required to

distribute the pamphlet and obtain an

acknowledgment from the occupants

regarding renovations performed in

common areas, although the renovator

must notify residents of the upcoming

renovations and make the pamphlet

available upon request, prior to the

renovation, at no charge.

Although some commenters suggested

that all residents should receive a copy

of the pamphlet before any work begins

in common areas, EPA does not believe

that the creation of a system in which

occupants receive a pamphlet every

time any kind of work occurs within the

common areas of a building is the most

efficient method for achieving the

informational objectives contemplated

by section 406(b). Since renovation

activities may occur in various hallways

or lobbies of a building on a frequent

basis, it could be impractical to require

a renovator to provide all occupants

with a new pamphlet before the

commencement of each renovation,

especially in dwellings with large

numbers of residential units. Such a

requirement would be difficult to

implement and enforce, and the impact

of the pamphlet would likely decrease

with each time it was given. The

renovator is required, however, to

provide the owner with a copy of the

pamphlet and obtain the signed, dated

acknowledgment thereof.

Although the renovator is not

required to distribute the pamphlet and

obtain acknowledgments from each

occupant in the building, the renovator

must still notify (no more than 60 days

prior to the renovation) each unit

individually in writing of the renovation

work that is to occur, including a

description and locations of the activity,

a statement that lead-based paint may be

disturbed, and the expected starting and

ending dates. Further, the renovator

must make copies of the pamphlet

available upon request and provide

information on how to obtain them. The

notification process could be

accomplished by distributing a letter or

flyer containing the required

information to each living unit within

the dwelling. Notification activities

could be performed by the renovator, by

the owner of the dwelling or other

representative, on behalf of the

renovator. Even if the owner or other

representative agreed to perform the

notification activities, however, the

responsibility to assure compliance

would still rest with the renovator. In

any case, the notification must be

received before the work is commenced.

EPA recognizes that in some cases,

large renovations could take an

extended period of time or cover several

different common areas of multi-family

housing. In that case, if the initial

notification provides accurate

information on the scope of renovations

planned in the various areas, with an

accurate schedule of their performance,

then that initial notification would be

sufficient to meet the requirements of

this rule. If the scope, location, or time

frame of the activities change in a way

not reflected in the original notification,

then the renovator is obligated to

provide updated information in an

additional notification. This updated

information is necessary to ensure that

owners and occupants can, if necessary,

adequately protect themselves from

exposure to lead-based paint.

EPA believes that owners or

renovators in the original notification

will allow a generous amount of time for

the completion of the renovation and

define a comprehensive scope of the

work to ensure that renotification

(pursuant to § 745.85(b)(4)) will not be

necessary. Therefore, EPA has chosen

not to include the costs of this provision

in the Regulatory Impact Analysis (see

Unit VII. of this preamble) for this

rulemaking. EPA has concluded that

these provisions for notifying occupants

of common area renovations strike the

appropriate balance between public

access to information and burden on the

regulated community.

G. Recordkeeping Requirements

EPA requested comment on whether

the recordkeeping requirements were

reasonable, too stringent, or not

stringent enough. The comments were

mixed and varied. A significant number

of commenters argued that the length of

the renovation job was a sufficient

retention period, and an equally

significant number of commenters

argued to retain the 3–year

recordkeeping requirement of the

proposal. Based on a review of the

comments provided, EPA will retain the

3–year recordkeeping requirement as

proposed.

Thus, renovators are required to retain

and, if requested, make available to EPA
Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations 29915

or its authorized delegates (i.e., States

and Tribes with EPA-approved

programs) all records necessary to

demonstrate compliance with the

requirements of this rule for 3 years

following completion of the renovation

activities on target housing. These

records include any reports certifying

that lead-based paint is not present in

the housing; the signed, dated

acknowledgments of receipt for delivery

of the pamphlet; the signed, dated

certifications of the inability to obtain

an acknowledgment of receipt; the

certificate of mailing for delivery of the

pamphlet; and the signed, dated

acknowledgments and records of

notification activities for renovations in

common areas.

H. Enforcement and Inspections

EPA received some comment on the

enforcement provisions discussed in the

statute and the proposed rule. A few

commenters expressed concern about

EPA’s ability to oversee and enforce the

requirements of section 406(b), while

other commenters sought assurance that

the Agency recognized the importance

of education and outreach to the

regulated community. Since the

enforcement and inspection provisions

in this rule derive directly from the

authorizing statutory language of TSCA,

this rule retains the enforcement

language largely as proposed. The

section number was changed to reflect

modified numbering, and the section

heading was renamed so that it could

more simply indicate that it addressed

EPA’s enforcement and inspection

authority. Below is a discussion of the

general enforcement authority provided

by TSCA (including Title IV), along

with some discussion of the process

EPA envisions for the development of a

sensible and effective lead enforcement

program.

Section 409 of TSCA makes it

unlawful to fail or refuse to comply with

any provision of a rule promulgated

under Title IV of TSCA. Therefore,

failure to comply with any provisions of

this final rule by regulated entities

would be a violation of TSCA. In

addition, section 15 of TSCA makes it

unlawful for any regulated entity to fail

or refuse to permit entry or inspection

(of business records in this instance) by

EPA or its authorized delegates as

required by section 11 of TSCA.

Violators may be subject to both civil

and criminal sanctions. Under the

penalty provision of section 16 of TSCA,

any person who violates sections 15 or

409 may be subject to a civil penalty of

up to $25,000 per day for each such

violation. Knowing or willful violations

of any provision of this final rule could

lead to the imposition of criminal fines

of up to $25,000 per day and

imprisonment for up to 1 year for each

such violation.

The above-described provisions

reflect the overall enforcement authority

available to EPA under TSCA. While

EPA intends to use the inspection and

enforcement tools available to ensure

compliance with this final rule, it is also

EPA’s intent that outreach and

compliance assistance be major

components of the section 406(b)

program so that renovators are aware of

the new requirements and their

subsequent obligations. EPA also

intends to bring clarity and

predictability to the enforcement

process for section 406(b). EPA is

developing a mechanism that achieves a

common sense relationship between a

particular ‘‘violation’’ of section 406(b)

and a particular enforcement response.

This includes issuing notices of warning

(without penalties) as appropriate to let

individuals know that they are out of

compliance and give them an

opportunity to come into compliance,

and ensuring that willful and repeated

violators are appropriately penalized.

However, numerous factors (many of

which are mandated by TSCA) are

involved in the Agency’s determination

of a proper enforcement response. EPA

is currently developing an

‘‘Enforcement Response Policy’’ (ERP)

for the requirements of this final rule.

I. Confidential Business Information

EPA received no comments on this

section. However, in order for readers to

understand what is required for the

submission of confidential documents,

EPA has included the following two

paragraphs to describe those procedures

(per 40 CFR part 2, subpart B):

Those who assert a confidentiality

claim for submitted information must

provide EPA with two copies of their

submission. The first copy must be

complete and contain all information

being claimed as confidential. The

second copy must contain only

information not claimed as confidential.

EPA will place the second copy of the

submission in the public file.

EPA will disclose information subject

to a claim of confidentiality only to the

extent permitted by section 14 of TSCA

and 40 CFR part 2, subpart B. If a person

does not assert a claim of confidentiality

for information at the time it is

submitted to EPA, EPA may make the

information public without further

notice to that person.

VI. Authorization of State Programs

Under section 404(a) of TSCA and its

implementing regulations, States and

Tribes may apply to administer and

enforce the standards, regulations, and

requirements established under this

rule. Section 404(b) states that the

Administrator may approve such an

application only after finding that the

State or Tribal program is at least as

protective of human health and the

environment as the Federal program

established according to the mandate of

sections 402 and 406 of TSCA, and that

it provides adequate enforcement.

The State or Tribal program must

have regulations or procedures that

contain the following: (1) Requirements

for distribution of an approved lead

hazard information pamphlet before

renovations performed for

compensation in target housing

commence; and (2) provisions for the

adequate enforcement of the above

program.

In providing an approved lead hazard

information pamphlet meeting the

requirements of section 406(a) of TSCA,

the State or Tribe may either require

distribution of: (1) The lead hazard

information pamphlet developed by

EPA, under section 406(a) of TSCA,

entitled Protect Your Family From Lead

In Your Home, or (2) an alternative

pamphlet or package of lead hazard

information that has been approved by

EPA. Any pamphlet or package of

information submitted for EPA approval

must contain the content and design

elements as mandated by section 406(a)

of TSCA. The procedures for submitting

an application (40 CFR 745.324) were

made final in a separate Federal

Register notice.

VII. Summary of Regulatory Impact

Analysis

EPA has prepared a Regulatory Impact

Analysis (RIA) which examines the

potential costs, benefits, and impacts of

these regulations for the disclosure of

potential lead-based paint hazards prior

to residential renovations. The complete

RIA is included as a part of the public

record for this rule and is available

through the TSCA Docket (see Unit VIII.

of this preamble for address).

A. Background and Framework for

Analysis

Those parties directly affected by the

rule are renovators (which may include

property managers), occupants of

owner-occupied and rental housing, and

owners of rental property. EPA found

the required activities which give rise to

regulatory burden imposed on the

affected parties to fall into four

categories for cost estimation purposes:

• Start-up costs, which include

learning the rule’s requirements and

establishing compliance procedures.
29916 Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations

• Disclosure activities, which refer to

the costs resulting from the actual

transfer of information and obtaining of

needed acknowledgments.

• Recordkeeping, which results

principally from the requirement that

signed acknowledgment statements

must be retained by the provider of the

information.

• Materials, which is linked primarily

to the disclosure requirement, as the

lead hazard information pamphlet must

be purchased or photocopied

(acknowledgment statements must also

be provided). Costs may also be

incurred for filing where a high number

of acknowledgment statements are

generated (e.g., renovators), though such

burden was estimated to be quite

modest.

The requirements of section 406(b) of

TSCA fall on parties providing

renovation services for compensation to

owners of ‘‘target housing,’’ which is

defined to be any housing constructed

prior to 1978, except housing for the

elderly or persons with disabilities

(unless any child who is less than 6

years of age resides or is expected to

reside in such housing) or any 0-

bedroom dwelling.

To estimate the impacts of the rule,

data were sought pertaining to the

number of affected parties; the

frequency with which affected

renovation transactions are completed;

and the incremental costs, in labor and

materials, added to each transaction by

the regulations.

B. Profile of Sectors Affected

Four major industry sectors were

identified as affected: SIC codes 15

(General Contractors and Operative

Builders); 17 (Special Trade

Contractors); 651 (Real Estate Operators

and Lessors); and 653 (Real Estate

Agents and Managers). In total, EPA

estimates there to be 482,000

establishments potentially affected by

the rule. The greatest portion of this

sum is expected to fall within SIC 17,

where 199,000 establishments could be

subject to the rule’s requirements.

Ninety-nine thousand establishments

were estimated to be potentially affected

in SIC 15. Also subject to the rule are

as many as 92,000 business

establishments falling within each of

SICs 651 and 653.

Employment data for these industries

were obtained for occupations most

likely to be involved in transactions

subject to the rule. EPA estimates that

2,272,000 contractor personnel (SICs 15

and 17) and 243,000 property managers

(SICs 651 and 653) may be affected.

With regard to transaction volume,

EPA found that 12.2 million renovation

events in owner-occupied target housing

and 6.3 million renovation events in

rental target housing that occur each

year may be subject to the rule.

C. Estimated Costs to Private Parties and

Government

EPA found that due to limitations of

the data, the RIA cost estimates could

not distinguish the frequency of

regulated transactions in target housing

from those transactions occurring in

housing not subject to the information

disclosure rules. While completing the

final analysis, EPA also determined that

it was not possible to establish how

frequently transactions performed in

target housing would be excluded from

regulatory coverage (e.g., jobs disturbing

less than 2 square feet of painted

surface). For those reasons, EPA

believes that both the proposed and

final regulatory impact analyses

overstate the impact of this rulemaking.

The first private party cost category,

start-up costs, represents about onethird of overall annual compliance costs

at $13.2 million. Factors affecting the

magnitude of these costs include the

number of employees having to

familiarize themselves with the

regulations, both initially (employees in

the existing workforce) and over time

(new entrants to the affected sectors);

the time required to learn the activities

which must be undertaken in order to

comply; and the hourly compensation of

affected employees.

Disclosure event costs of $57.5

million constitute the greatest portion of

overall compliance costs. Factors

affecting the magnitude of these costs

include the frequencies of regulated

events; the time involved in performing

required activities, such as providing

the owner/tenant with the required

information and obtaining the required

signatures; and the hourly

compensation of all involved parties.

Recordkeeping and materials costs

comprise a relatively modest share of

overall annual costs at $3.7 million and

$7.8 million, respectively. Factors

affecting the magnitude of these cost

items include the number of affected

parties per transaction; the frequency of

transactions; the costs of acquiring/

duplicating documents, which include

the lead hazard information pamphlet

and signed acknowledgment statements;

and costs to maintain documents. This

leads to a total estimated annual cost to

private parties of $82.2 million.

To administer the final regulation,

EPA estimates government resources

totaling between $2.4 million (low

estimate) and $4.3 million (high

estimate) will be required to conduct a

number of activities, including:

inspections; violation case management;

establishment and maintenance of

cooperative agreements; compliance

assistance, development of performance

measurement criteria; and management.

Therefore, the total annual costs for this

rule, to private parties and the

government, is estimated to be between

$84.6 million (low estimate) and $86.5

million (high estimate).

D. Effect of the Lead-Based Paint

Hazard Disclosure Rule for Real Estate

Renovations on Small Businesses

Regulatory Flexibility Analysis

EPA investigated the potential

impacts of the rule on small businesses,

and has prepared a regulatory flexibility

analysis which is included in the RIA.

While a large number of small

establishments will be potentially

affected by the rule, cost impacts were

not found to be of sufficient magnitude

to have significant economic impacts on

such establishments. That analysis is

summarized separately in Unit X.B. of

this preamble.

E. Assessment of Benefits

The market imperfection that the rule

is intended to correct is the lack of

information available to homeowners

and tenants regarding the potential

health risks accompanying residential

renovations that are related to leadbased paint. Under the rule, general

information about risks associated with

lead-based paint will be provided

through the provision of the pamphlet.

The failure of the marketplace to

currently provide this information

means that owners and occupants may

not be able to react appropriately to

avoid or prevent such risks.

This rule will generate direct benefits

by providing homeowners and tenants

information which they value and

otherwise can acquire only through

their own effort at some cost. Two

approaches for estimating the benefits

associated with having information are

discussed in the Regulatory Impact

Analysis (RIA): a contingent valuation

study, or a study of the transaction costs

to buyers and renters of obtaining

similar information. However, an

information base and the associated

accepted analytic methods are not yet

available; thus, the direct benefits of this

rule are not quantified. Nevertheless,

EPA believes that the information

provided in the qualitative analysis

presented in the RIA adequately serves

to inform and support the Agency’s

decision to promulgate this rule.

EPA also expects indirect or ‘‘followon’’ benefits from the rule, as the parties

to the renovation transaction

comprehend and use the information in
Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations 29917

the pamphlet. The regulation does not

require that the pamphlet be read or that

actions be taken to reduce lead-based

paint hazards; thus, the extent to which

lead exposure is reduced depends upon

how transaction participants respond to

the information provided to them by

this rule. Such responses will involve

both costs and benefits. As discussed in

the RIA, these costs and benefits are

extremely difficult to quantify because

doing so requires the prediction of

behavior and the isolation of the many

factors that influence behavior. In any

event, EPA believes that the benefits of

any follow-on activities will outweigh

their costs, because any such actions

will be undertaken voluntarily by the

parties to the renovation transaction.

VIII. Rulemaking Record

A record for this final rule has been

established under docket control

number ‘‘OPPTS–62131.’’ The public

version of this record (which does not

contain any information claimed as CBI)

is available for inspection from noon to

4 p.m., Monday through Friday,

excluding legal holidays. The public

record is located in EPA’s TSCA Docket

or Nonconfidential Information Center

(NCIC), Rm. NE–B607, 401 M St., SW.,

Washington, DC 20460.

The rulemaking record contains

information considered by EPA in

developing this final rule. The record

includes: (1) All Federal Register

notices, (2) relevant support documents,

(3) reports, (4) memoranda and letters,

and (5) hearing transcripts, responses to

comments, and other documents related

to this rulemaking.

Unit IX. of this preamble contains the

list of documents which the Agency

relied upon while developing this final

regulation and can be found in the

docket. Other documents, not listed

there, such as those submitted with

written comments from interested

parties, are contained in the TSCA

Docket Office as well. A draft of today’s

final rule submitted by the

Administrator to the Office of

Management and Budget for an

interagency review process prior to

publication of the rule is also contained

in the public docket.

IX. References

1. Alliance to End Childhood Lead

Poisoning, Preventing Childhood Lead

Poisoning: The First Comprehensive

National Conference; Final Report.

Washington, DC, 1991.

2. CDC, 1991. U.S. Centers for Disease

Control and Prevention, ‘‘Preventing

Lead Poisoning in Young Children; A

Statement By the Centers for Disease

Control.’’ Atlanta, GA, October 1991.

3. CPSC, 1977. ‘‘Notice Reducing

Allowable Levels of Lead in Lead-Based

Paint.’’ Federal Register. September 1,

1977: 42 FR 44199.

4. EPA, 1995. U.S. Environmental

Protection Agency, ‘‘Report on the

National Survey of Lead-Based Paint in

Housing: Base Report.’’ Washington, DC:

(EPA #747-R95-003).

5. HUD, 1995. U.S. Department of

Housing and Urban Development, Task

Force on Lead-Based Paint Hazard

Reduction and Financing, ‘‘Putting the

Pieces Together: Controlling Lead

Hazards in the Nation’s Housing: Final

Report.’’ Washington, DC: HUD-1542-

LBP.

6. HUD, 1990. ‘‘Lead-Based Paint;

Interim Guidelines for Hazard

Identification and Abatement in Public

and Indian Housing; Notice.’’ Federal

Register. April 18, 1990: 55 FR 14556.

7. HUD, 1994. Department of Housing

and Urban Development, ‘‘National

Housing Survey.’’ Washington, DC.

8. HUD, 1995. Department of Housing

and Urban Development, ‘‘Guidelines

for the Evaluation and Control of LeadBased Paint Hazards in Housing.’’

Washington, DC.

9. Pirkle, 1994. Pirkle, J.L., Brody D.J.,

Gunter E.W., Kramer R.A., Paschal D.C.,

Flegal K.M., Matte T.D., ‘‘The Decline in

Blood Lead Levels in the United States.’’

Journal of the American Medical

Association, 272(4): 284-291.

9a. CDC, 1997. ‘‘Update: Blood Lead

Levels - United States, 1991-1994.’’

Morbidity and Mortality Weekly Report,

46(7): 141-146.

9b. CDC, 1997. Erratum: Vol. 46, No.

7. Morbidity and Mortality Weekly

Report, 46(26).

10. EPA, 1995. ‘‘Lead Hazard

Information Pamphlet; Notice of

Availability.’’ Federal Register. August

1, 1995: 60 FR 39167.

11. National Institute of Building

Sciences, 1996. ‘‘Regulatory Models for

Lead Poisoning Prevention: Lead-Based

Paint Regulatory Infrastructure Project.’’

Published draft: Washington, DC.

December 2, 1996.

X. Regulatory Assessment

Requirements

A. Executive Order 12866

Under Executive Order 12866,

entitled Regulatory Planning and

Review (58 FR 51735, October 4, 1993),

this is a ‘‘significant regulatory action’’

subject to review by the Office of

Management and Budget (OMB),

because this action may raise novel legal

and policy issues arising from the

implementation of new statutory

mandates under Title IV of the Toxic

Substances Control Act (15 U.S.C. 2681-

2692). This action was therefore

submitted to OMB for review, and any

changes made during that review have

been documented in the public record.

EPA has prepared an economic

analysis of the impact of this action for

renovation activities, which is

contained in a document entitled

Regulatory Impact Analysis of LeadBased Paint Hazard Disclosure

Regulation for Residential Renovations

(hereinafter referred to as the RIA). This

document is available as a part of the

public record for this action and is

summarized in Unit VII. of this

preamble. EPA finds that the rule will

not have an annual effect on the

economy of $100 million or more, will

not result in major increases in costs or

prices, and is not anticipated to have

significant adverse effects on

competition, employment, investment,

or productivity in the relevant sectors.

EPA estimates the annual costs to

private entities to be $82 million and

the annual costs to government to range

from $2.4 to $4.3 million. These

estimates include costs for rule

familiarization, information disclosure

and obtaining required signatures,

recordkeeping, materials costs and, for

government, costs of administration.

EPA estimates that the provisions of the

rule would add about $2.00 to $4.00 to

the cost of each transaction for each

entity impacted. The average unit costs

per renovation activity is $4.52.

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. Although

small businesses were found to

constitute the great majority of affected

entities, the estimated individual cost

impacts of $2.00 to $4.00 per transaction

(e.g., the cost to renovation contractors,

speciality trade contractors, or rental

property managers on a per unit basis),

are quite insignificant. EPA has

prepared a final analysis of small entity

impacts as part of the RIA, which is

summarized in Unit VII.D. of this

preamble and briefly discussed here.

As demonstrated in the analysis, all

provisions were carefully crafted to

minimize impacts on all regulated

entities. Similarly, due to the high

proportion of affected establishments

represented by small business, the

Agency’s review and response to public

comments, particularly comments

relating to cost estimates presented in

the RIA and which formed the basis of

the flexibility analysis, have been

incorporated into the analysis by
29918 Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations

reference. The Regulatory Flexibility

Act also requires a statement of the need

for, and objectives of, the rule to be

provided. This statement appears in

Unit III. of this preamble, and is also

incorporated into the analysis by

reference.

In assessing small business impacts,

EPA first developed an establishment

profile for each major sector: SIC 15

(General Contractors and Operative

Builders); SIC 17 (Special Trade

Contractors); SIC 651 (Real Estate

Operators and Lessors); and SIC 653

(Real Estate Agents and Managers). This

profile indicated that approximately 80

to 90% of all establishments in each

sector fell within the 1-9 employee size

class, and roughly 98% had fewer than

50 employees. Thus, a substantial

number of small firms are estimated to

be potentially affected by the rule.

To measure the cost impacts of the

rule on these establishments,

representative or model establishments

were designed. These model

establishments corresponded to typical

establishments, with respect to number

of employees and annual transaction

volume, in each affected sector. Since

transaction activity was reported to vary

widely, a range of transaction volume

was estimated for each establishment

type.

For each model establishment, annual

regulatory costs were then calculated

and compared to annual labor and

overhead costs. Ratios were computed

for both high and low estimates of the

range of transaction activity. In the case

of a multi-trade renovation contractor,

regulatory costs were found to represent

from 0.04 to 0.09 percent of labor and

overhead costs. In the case of a specialty

trade contractor, impacts were

somewhat higher, ranging from 0.21 to

0.49%. An establishment engaged in

rental property management was

projected to sustain impacts of 0.73 to

1.44%.

In developing these impact ratios,

EPA was unable to distinguish in its

estimates of transaction activity how

frequently transactions might take place

in target housing as opposed to housing

not subject to the information disclosure

rules. Further, it was not possible to

determine how frequently transactions

performed in target housing would be

excluded from regulatory coverage (e.g.,

jobs disturbing less than 2 square feet of

painted surface). For these reasons, the

number of transactions incorporated in

the flexibility analysis may exaggerate

the number of jobs actually subject to

the rule, resulting in impacts which

most likely overstate true impacts.

While a large number of small

establishments will be potentially

affected by the rule, the analysis did not

suggest cost impacts to be significant for

such establishments. EPA received a

number of comments relating to the

costs of the rulemaking. Most of those

comments centered on a belief that EPA

underestimated the burden hours of

(and thereby the costs associated with)

each transaction. EPA disagrees with

those commenters’ assertions.

Information EPA collected suggested

that in the majority of affected

transactions, section 406 requirements

could be met as part of a pre-existing

process. Information regarding the

frequency with which more complex,

time-consuming scenarios might occur

suggested that those circumstances

would be in the minority. Further, EPA

believes the flexibility afforded the

renovator by the rule will be of

particular advantage to contractors who

may foresee difficulties in carrying out

the notification requirements.

Information relating to this

determination has been provided to the

Chief Counsel for Advocacy of the Small

Business Administration, and is

included in the docket for this

rulemaking.

C. Paperwork Reduction Act

The information collection

requirements in this rule have been

submitted for approval to OMB under

the Paperwork Reduction Act (44 U.S.C.

3501 et seq.). An Information Collection

Request (ICR) document has been

prepared by EPA (EPA ICR No. 1669.01)

and a copy may be obtained from Sandy

Farmer, OPPE Regulatory Information

Division, U.S. Environmental Protection

Agency (2136), 401 M St., SW.,

Washington, DC 20460, or by calling

(202) 260–2740. The information

collection requirements in this rule are

not effective until OMB approves them.

The collection of information required

in this rule has an estimated

recordkeeping burden averaging 6.2

minutes per response, and requires 5.7

hours per recordkeeper, annually. These

estimates include time to review

instructions, search existing data

sources, gather and maintain the data

needed, and complete the collection of

information.

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.

An agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA’s regulations are listed

in 40 CFR part 9. Upon OMB approval,

EPA will issue a notice in the Federal

Register to announce OMB’s approval

and to make a technical amendment to

include a reference to this approval in

40 CFR part 9.

Send comments on the Agency’s

accuracy of the provided burden

estimates, and any suggested methods

for minimizing respondent burden,

including through the use of automated

collection techniques to the Director,

OPPE Regulatory Information Division,

at the address listed above, and 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.’’ Include the ICR

number in any correspondence.

D. Unfunded Mandates Reform Act and

Executive Order 12875

Pursuant to Title II of the Unfunded

Mandates Reform Act, which the

President signed into law on March 22,

1995, EPA has assessed the effects of

this regulatory action on State, local,

and tribal governments, and the private

sector. This action does not result in the

annual expenditure (in the aggregate) of

$100 million or more by any State, local,

or tribal government, or by anyone in

the private sector. The costs associated

with this action are described in the

Executive Order 12866 section above.

In addition to the consultations prior

to proposal, EPA has had several

informal consultations regarding the

proposed rule with some States through

the EPA Regional Offices and at

regularly scheduled State meetings. No

significant issues or information were

identified as a result of EPA’s

discussion with the States.

In addition, since the issuance of this

rule is not discretionary, the

intergovernmental consultation

provisions of section 204 of the UMRA

and Executive Order 12875, entitled

Enhancing the Intergovernmental

Partnership (58 FR 58093, October 28,

1993), do not apply. The EPA is

required under Title IV of the Toxic
Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations 29919

Substances Control Act (15 U.S.C. 2681-

2692) to promulgate these regulations.

E. Executive Order 12898

Pursuant to Executive Order 12898

(59 FR 7629, February 16, 1994),

entitled Federal Actions to Address

Environmental Justice in Minority

Populations and Low-Income

Populations, 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. Recognizing that

lead-based paint hazard exposure is

more prevalent in those communities,

the Agency has developed a Spanish

language version of the pamphlet and is

seeking partners to investigate its

translation into other languages. The

Agency also requires that the signed

acknowledgment statements be in the

same language as the contract it

accompanies.

F. Executive Order 13045

This action is not subject to Executive

Order 13045, entitled Protection of

Children from Environmental Health

Risks and Safety Risks (62 FR 19885,

April 23, 1997), because this action is

not an economically significant

regulatory action as defined by

Executive Order 12866 (see Unit X.A.

above). This action does, however,

address environmental health or safety

risks affecting children, in that this rule

ensures that owners and occupants of

target housing are provided information

concerning the potential hazards of

lead-based paint exposure before certain

renovations are begun, and children are

particularly susceptible to the hazards

of lead. This information allows these

individuals to consider taking

appropriate precautions to avoid

exposure to the lead-contaminated dust

and lead-based paint debris that are

sometimes generated during renovations

of housing with lead-based paint. In

fact, children under the age of 6 are the

primary beneficiaries of this rule, as

well as the Agency’s overall Lead

Program.

XI. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) of the

Administrative Procedure Act (APA) as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (Title II of Pub. L. 104-121, 110

Stat. 847), EPA submitted 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

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2) of the APA as amended.

List of Subjects in 40 CFR Part 745

Environmental protection, Abatement,

Housing renovation, Lead, Lead-based

paint, Reporting and recordkeeping

requirements.

Dated: May 22, 1998.

Carol M. Browner,

Administrator.

Therefore, 40 CFR chapter I is

amended as follows.

PART 745—[AMENDED]

1. The authority citation for part 745

is revised to read as follows:

Authority: 15 U.S.C. 2605, 2607, 2681-2692

and 42 U.S.C. 4852d.

2. Subpart E is added to read as

follows:

Subpart E—Residential Property

Renovation

Sec.

745.80 Purpose.

745.81 Effective date.

745.82 Applicability.

745.83 Definitions.

745.84 Confidential business information.

745.85 Information distribution

requirements.

745.86 Recordkeeping requirements.

745.87 Enforcement and inspections.

745.88 Acknowledgment and certification

statements.

Subpart E—Residential Property

Renovation

§ 745.80 Purpose.

This subpart contains regulations

developed under Title IV (15 U.S.C.

2681-2692) of the Toxic Substances

Control Act and applies to all

renovations of target housing performed

for compensation. The purpose of this

subpart is to require each person who

performs a renovation of target housing

for compensation to provide a lead

hazard information pamphlet to the

owner and occupant of such housing

prior to commencing the renovation.

§ 745.81 Effective date.

The requirements in this subpart shall

take effect on June 1, 1999.

§ 745.82 Applicability.

(a) Except as provided in paragraph

(b) of this section, this subpart applies

to all renovations of target housing

performed for compensation.

(b) This subpart does not apply to

renovation activities that are limited to

the following:

(1) Minor repair and maintenance

activities (including minor electrical

work and plumbing) that disrupt 2

square feet or less of painted surface per

component.

(2) Emergency renovation operations.

(3) Renovations in target housing in

which a written determination has been

made by an inspector (certified pursuant

to either Federal regulations at § 745.226

or a State or Tribal certification program

authorized pursuant to § 745.324) that

the components affected by the

renovation are free of paint or other

surface coatings that contain lead equal

to or in excess of 1.0 milligram per

square centimeter or 0.5 percent by

weight, where the renovator has

obtained a copy of the determination.

§ 745.83 Definitions.

For purposes of this part, the

definitions in § 745.103 as well as the

following definitions apply:

Administrator means the

Administrator of the Environmental

Protection Agency.

Emergency renovation operations

means renovation activities, such as

operations necessitated by non-routine

failures of equipment, that were not

planned but result from a sudden,

unexpected event that, if not

immediately attended to, presents a

safety or public health hazard, or

threatens equipment and/or property

with significant damage.

Multi-family housing means a housing

property consisting of more than four

dwelling units.

Pamphlet means the EPA pamphlet

developed under section 406(a) of TSCA

for use in complying with this and other

rulemakings under Title IV of TSCA and

the Residential Lead-Based Paint Hazard

Reduction Act, or any State or Tribal

pamphlet approved by EPA pursuant to

40 CFR 745.326 that is developed for the

same purpose. This includes

reproductions of the pamphlet when

copied in full and without revision or

deletion of material from the pamphlet

(except for the addition or revision of

State or local sources of information).

Person means any natural or judicial

person including any individual,

corporation, partnership, or association;

any Indian Tribe, State, or political

subdivision thereof; any interstate body;

and any department, agency, or

instrumentality of the Federal

Government.

Renovation means the modification of

any existing structure, or portion

thereof, that results in the disturbance of

painted surfaces, unless that activity is

performed as part of an abatement as

defined by this part (40 CFR 745.223).

The term renovation includes (but is not

limited to): the removal or modification

of painted surfaces or painted
29920 Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations

components (e.g., modification of

painted doors, surface preparation

activity (such as sanding, scraping, or

other such activities that may generate

paint dust)); the removal of large

structures (e.g., walls, ceiling, large

surface replastering, major replumbing); and window replacement.

Renovator means any person who

performs for compensation a renovation.

§ 745.84 Confidential business

information.

(a) Those who assert a confidentiality

claim for submitted information must

provide EPA with two copies of their

submission. The first copy must be

complete and contain all information

being claimed as confidential. The

second copy must contain only

information not claimed as confidential.

EPA will place the second copy of the

submission in the public file.

(b) EPA will disclose information

subject to a claim of confidentiality only

to the extent permitted by section 14 of

TSCA and 40 CFR part 2, subpart B. If

a person does not assert a claim of

confidentiality for information at the

time it is submitted to EPA, EPA may

make the information public without

further notice to that person.

§ 745.85 Information distribution

requirements.

(a) Renovations in dwelling units. No

more than 60 days before beginning

renovation activities in any residential

dwelling unit of target housing, the

renovator shall:

(1) Provide the owner of the unit with

the pamphlet, and comply with one of

the following:

(i) Obtain, from the owner, a written

acknowledgment that the owner has

received the pamphlet.

(ii) Obtain a certificate of mailing at

least 7 days prior to the renovation.

(2) In addition to the requirements in

paragraph (a)(1) of this section, if the

owner does not occupy the dwelling

unit, provide an adult occupant of the

unit with the pamphlet, and comply

with one of the following:

(i) Obtain, from the adult occupant, a

written acknowledgment that the

occupant has received the pamphlet; or

certify in writing that a pamphlet has

been delivered to the dwelling and that

the renovator has been unsuccessful in

obtaining a written acknowledgment

from an adult occupant. Such

certification must include the address of

the unit undergoing renovation, the date

and method of delivery of the pamphlet,

names of the persons delivering the

pamphlet, reason for lack of

acknowledgment (e.g., occupant refuses

to sign, no adult occupant available), the

signature of the renovator, and the date

of signature.

(ii) Obtain a certificate of mailing at

least 7 days prior to the renovation.

(b) Renovations in common areas. No

more than 60 days before beginning

renovation activities in common areas of

multi-family housing, the renovator

shall:

(1) Provide the owner with the

pamphlet, and comply with one of the

following:

(i) Obtain, from the owner, a written

acknowledgment that the owner has

received the pamphlet.

(ii) Obtain a certificate of mailing at

least 7 days prior to the renovation.

(2) Notify in writing, or ensure written

notification of, each unit of the multifamily housing and make the pamphlet

available upon request prior to the start

of renovation. Such notification shall be

accomplished by distributing written

notice to each affected unit. The notice

shall describe the general nature and

locations of the planned renovation

activities; the expected starting and

ending dates; and a statement of how

the occupant can obtain the pamphlet,

at no charge, from the renovator.

(3) Prepare, sign, and date a statement

describing the steps performed to notify

all occupants of the intended renovation

activities and to provide the pamphlet.

(4) If the scope, locations, or expected

starting and ending dates of the planned

renovation activities change after the

initial notification, the renovator shall

provide further written notification to

the owners and occupants providing

revised information on the ongoing or

planned activities. This subsequent

notification must be provided before the

renovator initiates work beyond that

which was described in the original

notice.

(c) Written acknowledgment. Sample

language for such acknowledgments is

provided in § 745.88. The written

acknowledgments required in

paragraphs (a)(1)(i), (a)(2)(i), and (b)(1)(i)

of this section shall:

(1) Include a statement recording the

owner or occupant’s name and

acknowledging receipt of the pamphlet

prior to the start of renovation, the

address of the unit undergoing

renovation, the signature of the owner

or occupant as applicable, and the date

of signature.

(2) Be either a separate sheet or part

of any written contract or service

agreement for the renovation.

(3) Be written in the same language as

the text of the contract or agreement for

the renovation or, in the case of nonowner occupied target housing, in the

same language as the lease or rental

agreement or the pamphlet.

§ 745.86 Recordkeeping requirements.

(a) Renovators shall retain and, if

requested, make available to EPA all

records necessary to demonstrate

compliance with this subpart for a

period of 3 years following completion

of the renovation activities in target

housing. This 3-year retention

requirement does not supersede longer

obligations required by other provisions

for retaining the same documentation,

including any applicable State or Tribal

laws or regulations.

(b) Records that must be retained

pursuant to paragraph (a) of this section

shall include (where applicable):

(1) Reports certifying that a

determination had been made by an

inspector (certified pursuant to either

Federal regulations at § 745.226 or an

EPA-authorized State or Tribal

certification program) that lead-based

paint is not present in the area affected

by the renovation, as described in

§ 745.82(b)(vi).

(2) Signed and dated

acknowledgments of receipt as

described in § 745.85(a)(1)(i), (a)(2)(i),

and (b)(1)(i).

(3) Certifications of attempted

delivery as described in § 745.85(a)(2)(i).

(4) Certificates of mailing as described

in § 745.85(a)(1)(ii), (a)(2)(ii), and

(b)(1)(ii).

(5) Records of notification activities

performed regarding common area

renovations, as described in

§ 745.85(b)(3) and (4).

§ 745.87 Enforcement and inspections.

(a) Failure or refusal to comply with

any provision of this subpart is a

violation of TSCA section 409 (15 U.S.C.

2689).

(b) Failure or refusal to establish and

maintain records or to make available or

permit access to or copying of records,

as required by this subpart, is a

violation of TSCA sections 15 and 409

(15 U.S.C. 2614 and 2689).

(c) Failure or refusal to permit entry

or inspection as required by 40 CFR

745.87 and TSCA section 11 (15 U.S.C.

2610) is a violation of sections 15 and

409 (15 U.S.C. 2614 and 2689).

(d) Violators may be subject to civil

and criminal sanctions pursuant to

TSCA section 16 (15 U.S.C. 2615) for

each violation.

(e) EPA may conduct inspections and

issue subpoenas pursuant to the

provisions of TSCA section 11 (15

U.S.C. 2610) to ensure compliance with

this subpart.

§ 745.88 Acknowledgment and

certification statements.

(a)(1) Acknowledgment statement. As

required under § 745.85(c)(1),
Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations 29921

acknowledgments shall include a

statement of receipt of the pamphlet

prior to the start of renovation, the

address of the unit undergoing

renovation, the signature of the owner

or occupant as applicable, and the date

of signature.

(2) Sample acknowledgment

language. The following is a sample of

language that could be used for such

acknowledgments:

I have received a copy of the pamphlet,

Protect Your Family From Lead In Your

Home, informing me of the potential

risk of lead hazard exposure from

renovation activity to be performed in

my dwelling unit. I received this

pamphlet before the work began.

llllllll

llllllll

Printed Name and Signature

llllll

Date

lllllll

lllllll

Unit Address

(b)(1) Certification of attempted

delivery. When an occupant is

unavailable for signature or refuses to

sign the acknowledgment of receipt of

the pamphlet, the renovator is permitted

(per § 745.85(a)(2)(i)) to certify delivery

for each instance. The certification shall

include the address of the unit

undergoing renovation, the date and

method of delivery of the pamphlet,

names of the persons delivering the

pamphlet, reason for lack of

acknowledgment (e.g. occupant refuses

to sign, no adult occupant available), the

signature of the renovator, and the date

of signature.

(2) Sample certification language. The

following is a sample of language that

could be used under those

circumstances:

(i) Unavailable for signature.

I certify that I have made a good faith

effort to deliver the pamphlet, Protect

Your Family From Lead In Your Home,

to the unit listed below at the dates and

times indicated, and that the occupant

refused to sign the acknowledgment. I

further certify that I have left a copy of

the pamphlet at the unit with the

occupant.

llllllll

llllllll

Printed Name and Signature

lllllll

Date

llllll

llllll

Unit Address

Attempted delivery dates and times:

(ii) Refusal to sign.

I certify that I have made a good faith

effort to deliver the pamphlet, Protect

Your Family From Lead In Your Home,

to the unit listed below, and that the

occupant was unavailable to sign the

acknowledgment. I further certify that I

have left a copy of the pamphlet at the

unit by sliding it under the door.

lllllll

lllllll

Printed Name and Signature

llllllll

Date

llllllll

llllllll

Unit Address

Attempted delivery dates and times:

[FR Doc. 98–14437 Filed 5–29–98; 8:45 am]

BILLING CODE 6560–50–F