[Federal Register Volume 74, Number 53 (Friday, March 20, 2009)]
[Rules and Regulations]
[Pages 11863-11870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6167]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[EPA-HQ-OPPT-2008-0382; FRL-8404-2]
RIN 2070-AJ40


Lead; Fees for Accreditation of Training Programs and 
Certification of Lead-based Paint Activities and Renovation Contractors

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is issuing this final rule to revise the existing fees for 
EPA's Lead-based Paint Activities Regulations and establish fees for 
the Renovation, Repair, and Painting Rule. As specified in section 402 
of the Toxic Substances Control Act (TSCA), EPA must establish and 
implement a fee schedule to recover for the U.S. Treasury the Agency's 
costs of administering and enforcing the standards and requirements 
applicable to lead-based paint training programs and contractors. 
Specifically, this final rule establishes the fees that will be 
charged, in those States and Indian Tribes without authorized programs, 
for training programs seeking accreditation under 40 CFR 745.225, for 
firms engaged in renovations seeking certification under 40 CFR 745.89, 
and for individuals or firms engaged in lead-based paint activities 
seeking certification under 40 CFR 745.226.

DATES: This final rule is effective April 20, 2009.

ADDRESSES: EPA has established a docket for this action under docket 
identification (ID) number EPA-HQ-OPPT-2008-0382. All documents in the 
docket are listed in the docket index available at http://www.regulations.gov. Although listed in the index, some information is 
not publicly available, e.g., Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available in the electronic 
docket at http://www.regulations.gov, or, if only available in hard 
copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket 
Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., 
NW., Washington, DC. The EPA/DC Public Reading Room hours of operation 
are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal 
holidays. The telephone number of the EPA/DC Public Reading Room is 
(202) 566-1744, and the telephone number for the OPPT Docket is (202) 
566-0280. Docket visitors are required to show photographic 
identification, pass through a metal detector, and sign the EPA visitor 
log. All visitor bags are processed through an X-ray machine and 
subject to search. Visitors will be provided an EPA/DC badge that must 
be visible at all times in the building and returned upon departure.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby 
Lintner, Regulatory Coordinator, Environmental Assistance Division 
(7408M), Office of Pollution Prevention and Toxics, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address: <a href="/cdn-cgi/l/email-protection#9ecacddddfb3d6f1eaf2f7f0fbdefbeeffb0f9f1e8"><span class="__cf_email__" data-cfemail="2470776765096c4b50484d4a41644154450a434b52">[email protected]</span></a>.
     For technical information contact: Marc Edmonds, National Program 
Chemicals Division (7404T), Office of Pollution Prevention and Toxics, 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001; telephone number: (202) 566-0758; e-mail 
address: <a href="/cdn-cgi/l/email-protection#2f4a4b4240414b5c01424e5d4c6f4a5f4e01484059"><span class="__cf_email__" data-cfemail="3257565f5d5c56411c5f534051725742531c555d44">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Does this Action Apply to Me?

     You may be potentially affected by this action if you operate a 
training program required to be accredited under 40 CFR 745.225, if you 
are a firm who must be certified to conduct renovation activities in 
accordance with 40 CFR 745.89, or if you are a professional (individual 
or firm) who must be certified to conduct lead-based paint activities 
in accordance with 40 CFR 745.226.
    This final rule applies only in States, Territories, and Indian 
Tribes that do not have authorized programs pursuant to 40 CFR 745.324. 
For further information regarding the authorization status of States, 
Territories, and Indian Tribes, contact the National Lead Information 
Center (NLIC) at 1-800-424-LEAD. Potentially affected categories and 
entities may include, but are not limited to:
     <bullet> Building construction (NAICS code 236), e.g., single 
family housing construction, multi-family housing construction, 
residential remodelers.
     <bullet> Specialty trade contractors (NAICS code 238), e.g., 
plumbing, heating, and air-conditioning contractors; painting and wall 
covering contractors; electrical contractors; finish carpentry 
contractors; drywall and insulation contractors; siding contractors; 
tile and terrazzo

[[Page 11864]]

contractors; glass and glazing contractors.
     <bullet> Real estate (NAICS code 531), e.g., lessors of 
residential building and dwellings, residential property managers.
     <bullet> Child day care services (NAICS code 624410).
     <bullet> Elementary and secondary schools (NAICS code 611110), 
e.g., elementary schools with kindergarten classrooms.
     <bullet> Other technical and trade schools (NAICS code 611519), 
e.g., training providers.
     <bullet> Engineering services (NAICS code 541330) and building 
inspection services (NAICS code 541350), e.g., dust sampling 
technicians.
     <bullet> Lead abatement contractors and professionals (NAICS code 
562910), e.g., firms and supervisors engaged in lead-based paint 
activities.
     This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in this unit could also be 
affected. The North American Industrial Classification System (NAICS) 
codes have been provided to assist you and others in determining 
whether this action might apply to certain entities. To determine 
whether you or your business may be affected by this action, you should 
carefully examine the applicability provisions in 40 CFR 745.89, 40 CFR 
745.225, and 40 CFR 745.226. If you have any questions regarding the 
applicability of this action to a particular entity, consult the 
technical person listed under FOR FURTHER INFORMATION CONTACT.

II. Background

A. What Action is the Agency Taking?

    EPA is revising the existing fees for training providers, firms, 
and individuals under the Lead-based Paint Activities Regulations. EPA 
is also establishing fees for training providers and renovation firms 
under the Renovation, Repair, and Painting Rule published in the 
Federal Register issue of April 22, 2008 (Ref. 1). As specified in TSCA 
section 402, EPA must establish and implement a fee schedule to recover 
for the U.S. Treasury the Agency's costs of administering and enforcing 
the standards and requirements applicable to lead-based paint training 
programs and contractors. Specifically, this final rule establishes the 
fees that will be charged, in those States and Indian Tribes without 
authorized programs, for training programs seeking accreditation under 
40 CFR 745.225, for firms engaged in renovations seeking certification 
under 40 CFR 745.89, and for individuals or firms engaged in lead-based 
paint activities seeking certification under 40 CFR 745.226.

B. What is the Agency's Authority for Taking this Action?

    This final rule is being issued under the authority of TSCA 
sections 402(a)(3) and 402(c)(3) (15 U.S.C. 2682(a)(3) and 2682(c)(3)).

C. What Regulations Have Already Been Promulgated Under TSCA Section 
402?

    In 1992, Congress found that low-level lead poisoning was 
widespread among American children, affecting, at that time, as many as 
3,000,000 children under age 6; that the ingestion of household dust 
containing lead from deteriorating or abraded lead-based paint was the 
most common cause of lead poisoning in children; and that the health 
and development of children living in as many as 3,800,000 American 
homes was endangered by chipping or peeling lead paint, or excessive 
amounts of lead-contaminated dust in their homes. Congress further 
determined that the prior Federal response to this threat was 
insufficient and enacted Title X of the Housing and Community 
Development Act of 1992, Public Law 102-550 (also known as the 
Residential Lead-Based Paint Hazard Reduction Act of 1992) (Title X). 
Title X established a national goal of eliminating lead-based paint 
hazards in housing as expeditiously as possible and provided a 
leadership role for the Federal Government in building the 
infrastructure necessary to achieve this goal.
    Title X added a new title to TSCA, entitled Title IV-Lead Exposure 
Reduction. Most of EPA's responsibilities for addressing lead-based 
paint hazards can be found in Title IV, with TSCA section 402 being one 
source of the rulemaking authority to carry out these responsibilities. 
Section 402(a) of TSCA directs EPA to promulgate regulations covering 
lead-based paint activities to ensure persons performing these 
activities are properly trained, that training programs are accredited, 
and that contractors performing these activities are certified. These 
regulations must contain standards for performing lead-based paint 
activities, taking into account reliability, effectiveness, and safety. 
On August 29, 1996, EPA promulgated final regulations under TSCA 
section 402(a) that govern lead-based paint inspections, lead hazard 
screens, risk assessments, and abatements in target housing and child-
occupied facilities (also referred to as the Lead-based Paint 
Activities Regulations) (Ref. 2). These regulations, codified at 40 CFR 
part 745, subpart L, contain an accreditation program for training 
providers and training and certification requirements for lead-based 
paint inspectors, risk assessors, project designers, abatement 
supervisors, and abatement workers. Work practice standards for lead-
based paint activities are also included. Pursuant to TSCA section 404, 
provision was made for interested States, Territories, and Indian 
Tribes to apply for and receive authorization to administer their own 
lead-based paint activities programs. Requirements applicable to State, 
Territorial, and Tribal programs are codified in 40 CFR part 745, 
subpart Q.
    Section 402(a)(3) of TSCA directs the Agency to establish fees to 
recover for the U.S. Treasury the cost of administering and enforcing 
the standards and requirements established under TSCA section 402 and 
applicable to lead-based paint training programs and contractors. On 
June 9, 1999, 40 CFR part 745, subpart L, was amended to include a fee 
schedule for training programs seeking EPA accreditation and for 
individuals and firms seeking EPA certification (Ref. 3). These fees 
were established as directed by TSCA section 402(a)(3), which requires 
EPA to recover the cost of administering and enforcing the lead-based 
paint activities requirements in States without authorized programs.
    Section 402(c) of TSCA pertains to renovation and remodeling 
activities. TSCA section 402(c)(3) requires EPA to revise the 
regulations issued under TSCA section 402(a), the Lead-based Paint 
Activities Regulations, to apply to renovation or remodeling activities 
that create lead-based paint hazards. In the Federal Register issue of 
April 22, 2008, EPA issued a final rule covering renovation, repair, 
and painting activities in target housing and child-occupied facilities 
(the Renovation, Repair, and Painting Rule) (Ref. 1). Pursuant to the 
Renovation, Repair, and Painting Rule, persons performing covered 
renovation activities must be properly trained, renovators and 
renovation firms must be certified, and persons who provide renovator 
or dust sampling training must be accredited. As described in 40 CFR 
745.81, the requirements of the Renovation, Repair, and Painting Rule 
become effective in stages with the entire rule becoming effective as 
of April 22, 2010.

D. Proposed Rule

    In the Federal Register issue of August 21, 2008, EPA issued a 
proposed rule to revise the existing fees for

[[Page 11865]]

training providers, firms, and individuals under the Lead-based Paint 
Activities Regulations and to establish fees for training providers and 
renovation firms under the Renovation, Repair, and Painting Rule (Ref. 
4). As specified in TSCA section 402, EPA must establish and implement 
a fee schedule to recover for the U.S. Treasury the Agency's costs of 
administering and enforcing the standards and requirements applicable 
to lead-based paint training programs and contractors. As explained in 
the preamble of the proposal for this rule, EPA interprets the language 
of TSCA section 402(c)(3), which requires EPA to revise the TSCA 
section 402(a) regulations to apply to renovation and remodeling 
activities that create lead-based paint hazards, to include the 
establishment of fees as directed by TSCA section 402(a).
    To estimate the costs of administering the accreditation and 
certification program, EPA directly estimated total costs for 
enforcement activities and Headquarters administrative activities 
(e.g., the cost to maintain the Federal Lead-based Paint Program (FLPP) 
database, the cost to enter data into the database), since these 
activities cannot be linked to specific applications. Enforcement cost 
estimates were generated based on the actual resources currently 
allocated for enforcement. EPA calculated the costs for Regional 
administrative activities on a per application basis, (e.g., the cost 
to review an application, the cost to issue a certificate), because 
these costs depend largely on the number and type of applications 
received. As described in the economic analysis for this final rule, 
the information pertaining to the Regional cost of processing 
applications was determined by observing and recording actual Regional 
application processing activities over a 30-day period (Ref. 5). The 
total program cost for EPA Regional administrative activities is the 
sum of the EPA Regional administrative costs for each type of 
application multiplied by the total number of that type of application 
received.

III. Provisions of the Final Rule

    This final rule revises fees for training providers, firms, and 
individuals under the Lead-based Paint Activities Regulations and 
establishes fees for training providers and renovation firms under the 
Renovation, Repair, and Painting Rule. The Agency based these fees on 
the cost of administering and enforcing the Lead-based Paint Activities 
Regulations and the estimated cost of administering and enforcing the 
Renovation, Repair, and Painting Rule. The fees in this final rule are 
the same as those published in the proposed rule with one exception. 
After consideration of the comments on the proposed rule, EPA decided 
to assess a single fee of $550 for firms that apply for certification 
under the Lead-based Paint Activities Regulations and the Renovation, 
Repair, and Painting Rule on a single application in States where EPA 
implements both programs. For Tribal government entities, the fee is 
$20. The combined firm certification is explained in more detail in 
Unit IV.D. Accordingly, EPA revised the existing fees in 40 CFR 745.238 
for the Lead-based Paint Activities Regulations as follows:
    <bullet> Accreditation for initial training course--$870
    <bullet> Accreditation for refresher training course--$690
    <bullet> Re-accreditation for initial training course--$620
    <bullet> Re-accreditation for refresher training course--$580
    <bullet> Initial firm certification--$550
    <bullet> Initial Tribal firm certification--$20
    <bullet> Firm re-certification--$550
    <bullet> Combined lead-based paint activities and renovation firm 
certification--$550
    <bullet> Combined lead-based paint activities and renovation firm 
certification for Tribal firms--$20
    <bullet> Tribal firm re-certification--$20
    <bullet> Individual certification (for all disciplines except 
worker)--$410
    <bullet> Individual worker certification--$310
    <bullet> Individual Tribal certification (all disciplines)--$10
    <bullet> Individual re-certification (for all disciplines except 
worker)--$410
    <bullet> Individual worker re-certification--$310
    <bullet> Individual Tribal re-certification (all disciplines)--$10

    This final rule also establishes the following fees for the 
Renovation, Repair, and Painting Rule:

    <bullet> Accreditation for initial renovator or dust sampling 
technician course--$560
    <bullet> Accreditation for refresher renovator or dust sampling 
technician course--$400
    <bullet> Re-accreditation for initial renovator or dust sampling 
technician course--$340
    <bullet> Re-accreditation for refresher renovator or dust sampling 
technician course--$310
    <bullet> Initial renovation firm certification--$300
    <bullet> Combined lead-based paint activities and renovation firm 
certification--$550
    <bullet> Combined lead-based paint activities and renovation firm 
certification for Tribal firms--$20
    <bullet> Initial Tribal renovation firm certification--$20
    <bullet> Renovation firm re-certification--$300
    <bullet> Tribal renovation firm re-certification--$20

IV. Summary of Public Comments and EPA Responses

    The Agency received comments from eight commenters on the proposed 
rule. The comments are included in the docket for this rulemaking. The 
Agency's responses to these comments are also provided in the docket. 
Responses to the most significant comments are included in this unit. 
This unit addresses comments regarding the methods used to establish 
fee amounts as well as the fee amounts established by this final rule 
for:
    <bullet> Certification of Tribal governments and their respective 
employees.
    <bullet> Certification of State and local governments and their 
respective employees.
    <bullet> Certification of very small firms.

A. Methods Used to Establish Fees

    With respect to the overall fee schedules, one commenter stated 
that the Renovation, Repair, and Painting Rule fees should be based on 
cost data from accreditations and certifications under the Department 
of Housing and Urban Development's (HUD) Lead Safe Housing Rule. The 
commenter asserted that the HUD program is analogous to EPA's 
Renovation, Repair, and Painting Rule in terms of accrediting and 
certifying training providers and firms. Two other commenters stated 
that the fee amounts and methods used to establish the fees for the 
Lead-based Paint Activities Regulations and the Renovation, Repair, and 
Painting Rule are reasonable.
    EPA disagrees that data from HUD's Lead Safe Housing Rule should 
have been used to determine the costs of accreditations and 
certifications. HUD's Lead Safe Housing Rule establishes certain 
requirements for renovations performed in target housing; however, the 
rule does not require HUD to accredit and certify training providers 
and firms. Consequently, HUD would not have information about the cost 
of administering an accreditation and certification program.

B. Certification Fees for Tribal Governments and Their Employees

    The proposed rule included a reduced fee for Tribal governments of 
$20 for Tribal firm certification and $10 for the

[[Page 11866]]

individual certification of a Tribal employee. EPA received two 
comments regarding the lower fees for Tribes. One commenter agreed that 
the individual fee was appropriate and that EPA should extend the lower 
fees to low-income workers and non-profit organizations. Another 
commenter stated that a lower fee should be based on need and that not 
all Tribes face the same financial constraints.
    The Agency agrees that the lower certification fees for Tribal 
governments and their employees are appropriate. While some Tribal 
governments may have adequate funding to pay these fees, Tribal 
governments overall would benefit from lower fees. Therefore, the final 
rule includes a $20 fee for the firm certification of a Tribal 
government and $10 for the individual certification of an employee of a 
Tribal government. EPA estimates that only a small number of Tribal 
governments will seek certification. Thus the lower Tribal fees will 
have a negligible impact on fees for other firms and individuals. 
Moreover, establishing a need-based fee schedule would introduce 
additional administrative (verification) and enforcement costs, 
changing the cost analysis. In sum, while some Tribal governments may 
have ample resources, the increased costs of implementing a need-based 
system do not, on balance, justify doing so.
    One commenter asked if a Federal agency whose primary focus is the 
support of Tribes would qualify for the reduced Tribal fee. Under the 
Lead-based Paint Activities Regulations and the Renovation, Repair, and 
Painting Rule, only a Tribal government and its employees are eligible 
for the lower fee. Federal agencies and other non-Tribal governments 
can not take advantage of the lower fee.

C. Certification Fees for State and Local Governments and Their 
Employees

    EPA sought comment on whether the costs to State and local 
governments should be shifted to non-government firms and individuals 
in order to lower certification fees for State and local government 
firm and individual certifications. These governments are already 
exempt under TSCA section 402(a)(3) from paying Federal accreditation 
fees. As stated in the preamble to the proposal, EPA considered further 
reducing the financial impact of Federal fees on State and local 
governments. As an example of a potential fee, the Agency suggested a 
50% reduction in the proposed certification fees. EPA did not make an 
estimate of how many State governments would be able to take advantage 
of this lower fee but instead requested comment on what the number 
would be.
    The Agency received several comments on lowering the fee for States 
and local governments. One commenter was in support of a lower fee 
stating that a 50% fee reduction was appropriate. Three commenters 
opposed the lower fees. One of the commenters in opposition stated that 
there is no basis for a lower fee especially if the decreasing fees 
would be recovered by non-government firms and individuals. Another 
commenter objected on the basis that businesses will pay the fees for 
their employees and State and local governments should do the same.
    After considering the issue, the Agency has decided not to shift 
costs to non-governmental firms and individuals in order to lower 
certification fees for State and local governments. The Agency did not 
receive any comments from State and local governments and therefore did 
not acquire any specific information on whether lower fees for these 
governments are necessary. More importantly, EPA did not receive any 
information concerning the number of government entities and employees 
that would take advantage of the lower fees making it difficult to even 
approximate the number of entities and employees that would be eligible 
for the lower fee and the amount of the costs that would have to be 
shifted to other firms and individuals in order to be recouped.

D. Certification Fees for Very Small Firms

    In the proposed rule, EPA requested comment on whether firms with 
annual revenues below $25,000 seeking certification under the 
Renovation, Repair, and Painting Rule should pay a reduced firm 
certification fee of $100 in order to reduce the impact of the fees on 
small entities. Several commenters expressed support for the lower fee. 
One commenter stated that the lower fee makes sense but should be 
further gradated according to a firm's annual revenue. Another 
commenter claimed that the idea has merits but that any associated 
increase in fees should be borne solely by other firms and not training 
providers. One commenter opposed the lower fee claiming that the $300 
fee is not burdensome. Another commenter was in favor of the reduced 
fee provided that the definition of annual revenues was included 
revenue from all work by the firm and not just lead abatement work.
    After consideration of the comments and further analysis, the 
Agency decided not increase fees on other firms and training providers 
in order to lower fees for renovation firms earning below $25,000 of 
revenue per year. Establishing a lower fee or graduated fee schedule 
based upon gross receipts would introduce additional administrative and 
enforcement cost associated with verifying that firms were entitled to 
a lower fee. Thus, not only would the difference in fees need to be 
shifted to other entities, but the increased administrative and 
enforcement costs would also need to be recouped. Furthermore, the 
Agency generally agrees that a $300 fee for a 5-year certification, 
i.e., $60 per year, is not overly burdensome and that the difference in 
paying $100 or $200 as opposed to $300 would not have a significant 
impact. Thus, after weighing the equities of increasing fees on other 
firms to cover the cost associated with a fee reduction for very small 
businesses against the burden of a $300 fee amortized over 5 years, the 
Agency determined that such a reduced fee structure could not be 
justified.
    One commenter claimed that EPA should not charge a firm two 
certification fees if it applies for certification under the Lead-based 
Paint Activities Regulations and the Renovation, Repair, and Painting 
Rule. The commenter believes it is unfair to charge two fees for a 
single firm.
    In light of this comment, the Agency decided to assess a single fee 
of $550 for firms that apply for certification under the Lead-based 
Paint Activities Regulations and the Renovation, Repair, and Painting 
Rule on a single application. For Tribal government entities, the fee 
is $20. Firms that apply on separate applications will have to pay the 
appropriate fee for each. The lower fee would only apply when a single 
firm applies for both certifications on the same firm application in a 
State where EPA implements both programs. EPA is charging a lower fee 
because it is less costly to process a single application instead of 
separate applications for each program. The Agency agrees that it is 
appropriate to pass along this cost savings to firms. Moreover, the 
impact of doing so will be limited. The Agency does not expect many 
firms to take advantage of this due to difference in the length of 
certifications under each program. Certifications for the Renovation, 
Repair, and Painting Rule last for 3 years while certifications under 
the Renovation, Repair, and Painting Rule are good for 5 years. 
Therefore, it is unlikely that a firm already certified under the Lead-
based Paint Activities Regulations will apply for recertification at 
the same time it applies for certification under the

[[Page 11867]]

Renovation, Repair, and Painting Rule. Compared to the large number of 
firms that will seek certification under the Renovation, Repair, and 
Painting Rule, there are very few firms certified under the Lead-based 
Paint Activities Regulations. Thus, this change will have a negligible 
impact on fees for other entities.

V. References

    The following is a list of the documents that are specifically 
referenced in this final rule and placed in the docket that was 
established under docket ID number EPA-HQ-OPPT-2008-0382. For 
information on accessing the docket, refer to the ADDRESSES unit at the 
beginning of this document.

    1. USEPA. Lead; Renovation, Repair, and Painting Program; Final 
Rule. Federal Register (73 FR 21692, April 22, 2008) (FRL-8355-7).
    2. USEPA. Lead; Requirements for Lead-Based Paint Activities in 
Target Housing and Child-Occupied Facilities: Final Rule. Federal 
Register (61 FR 45778, August 29, 1996) (FRL-5389-9).
    3. USEPA. Lead; Fees for Accreditation of Training Programs and 
Certification of Lead-based Paint Activities Contractors; Final Rule. 
Federal Register (64 FR 31092, June 9, 1999) (FRL-6058-6).
    4. USEPA. Lead; Fees for Accreditation of Training Programs and 
Certification of Lead-Based Paint Activities and Renovation 
Contractors; Proposed Rule. Federal Register (73 FR 49378, August 21, 
2008) (FRL-8372-4).
    5. USEPA. Office of Pollution Prevention and Toxics (OPPT). 
Economic Analysis for the TSCA Section 402 Lead-Based Paint Program 
Accreditation and Certification Fee Rule. January 27, 2009.
    6. USEPA. OPPT. Economic Analysis for the TSCA Lead Renovation, 
Repair, and Painting Program Final Rule for Target Housing and Child-
Occupied Facilities. March 2008.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866, entitled Regulatory Planning and Review 
(58 FR 51735, October 4, 1993) and is therefore not subject to review 
under the Executive order. EPA has prepared an analysis of the 
potential impact of this action, which is briefly summarized here. The 
impact of the fee amendments to the Lead-based Paint Activities 
Regulations is estimated to be $1.2 million per year, or $6.1 million 
over the next 5 years. The impact of the fees for the Renovation, 
Repair, and Painting Rule, which were addressed and accounted for 
during the development of that rule, is estimated to be $61 million in 
the first year, and $22 million in each of the following 4 years, or 
$150 million over the next 5 years. EPA's analysis is contained in two 
documents, entitled Economic Analysis for the TSCA Section 402 Lead-
Based Paint Program Accreditation and Certification Fee Rule (Ref. 5) 
and Economic Analysis for the TSCA Lead Renovation, Repair, and 
Painting Program Final Rule for Target Housing and Child-Occupied 
Facilities (Ref. 6). These documents are available in the docket for 
this final rule.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden 
because this final rule merely established fees associated with 
previously promulgated accreditation and certification application 
requirements. The Office of Management and Budget (OMB) has previously 
approved the information collection requirements contained in 40 CFR 
part 745, subpart E and subpart L, under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB 
control number 2070-0155 (EPA ICR number 1715). The OMB control numbers 
for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this final rule on small 
entities, small entity is defined in accordance with section 601 of RFA 
as:
    1. A small business as defined by the Small Business 
Administration's (SBA) regulations at 13 CFR 121.201.
    2. A small governmental jurisdiction that is a government of a 
city, county, town, school district, or special district with a 
population of less than 50,000.
    3. A small organization that is any not-for-profit enterprise which 
is independently owned and operated and is not dominant in its field.
    After considering the economic impacts of this final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The small 
entities that are potentially directly regulated by this final rule 
include: Small businesses (including abatement and renovation 
contractors, environmental testing firms, and property owners and 
managers); small non-profits (including child day care centers, private 
schools, and advocacy groups); and small governments (local 
governments, school districts).
    This final rule would result in a slight overall decrease in the 
fees currently assessed under the Lead-based Paint Activities 
Regulations. Fees for training providers will decrease with the 
exception of the project designer course refresher. Individual fees 
will decrease for the certification and recertification of risk 
assessors, and the certification of supervisors and project designers. 
Consequently, EPA estimates that this portion of the final rule will 
have no adverse impact on small entities; in fact the small entities 
affected by the final rule will incur cost savings.
    With respect to the fees for the Renovation, Repair and Painting 
Rule, EPA does not believe that the firm certification fee of $300 
(which, over 5 years, is $60 per year) established in this final rule 
to implement the requirements of the Renovation, Repair, and Painting 
Rule would have a significant economic impact on a substantial number 
of small entities. Overall, EPA estimated that there are approximately 
204,956 small entities that would be affected by the Renovation, 
Repair, and Painting Rule. Of these, there are an estimated 179,818 
small businesses with an average impact from the fees ranging from 
0.007% to 0.220%, 18,088 small non-profits with an average impact 
ranging from 0.006% to 0.097%, and 7,050 small governments with an 
average impact ranging from 0.0004% to 0.002%. The impact was measured 
by comparing the cost of the fees incurred by the entity to the 
entity's revenue.
    Moreover, the impacts of the fees for the Renovation, Repair, and 
Painting Rule on small entities were also addressed and accounted for 
during the development of that rule. As provided for in section 605 of 
RFA, the fees established in this final rule to implement the 
Renovation, Repair and Painting Rule are so closely related to the 
Renovation, Repair, and Painting Rule that EPA considers it and the 
analysis EPA did pursuant to the Renovation, Repair, and Painting Rule 
to be one rule for the purposes of

[[Page 11868]]

sections 603 and 604 of RFA. Indeed, the economic analysis for the 
Renovation, Repair, and Painting Rule (Ref. 6) included projected fees 
that were slightly higher than those being established in this final 
rule. Accordingly, in order to avoid duplicative action, EPA is also 
relying on the analysis of that Renovation, Repair, and Painting Rule, 
as supplemented by the economic analysis accompanying this final rule, 
as satisfying EPA's obligations under RFA. Specifically, pursuant to 
section 603 of RFA, EPA prepared an initial regulatory flexibility 
analysis (IRFA) for the proposed Renovation, Repair, and Painting Rule 
and convened a Small Business Advocacy Review Panel to obtain advice 
and recommendations of representatives of the regulated small entities 
on a range of issues, including training and certification fees. As 
required by section 604 of RFA, the Agency also prepared a final 
regulatory flexibility analysis (FRFA) for the final Renovation, 
Repair, and Painting Rule which took into account the fees (albeit 
taking into account slightly higher projections) being established in 
this final rule. The FRFA also addressed the issues raised by public 
comments on IRFA, which was part of the proposed rule. Accordingly, the 
impacts of the fees for the Renovation, Repair, and Painting Rule on 
small entities have been adequately addressed for purposes of RFA.
    Although this final rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless has 
tried to reduce the impact of this final rule on small entities. In 
response to concerns about impacts on abatement workers and the firms 
that employ them, EPA reduced fees for worker certification. However, 
TSCA section 402(a)(3) requires EPA to recover the costs of 
administering its lead training course provider accreditation and 
contractor certification program through fees.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, requires Federal agencies to assess the effects of their 
regulatory actions to determine if such actions impose Federal mandates 
on State, local, and Tribal governments and the private sector. This 
rule does not contain a Federal mandate under UMRA that may result in 
expenditures of $100 million or more for State, local, and Tribal 
governments, in the aggregate, or the private sector in any 1 year. EPA 
has prepared an economic analysis of the potential impact of this 
action, which is estimated to be $156 million over the next 5 years 
which is an average of $31 million per year. The impact of the fees for 
the Lead-based Paint Activities Regulations is estimated to be $1.2 
million per year, or $6.1 million over the next 5 years. The impact of 
the fees for the Renovation, Repair, and Painting Program, which were 
addressed and accounted for during the development of that rule, is 
estimated to be $61 million in the first year, and $22 million in each 
of the following 4 years, or $150 million over the next 5 years. Thus, 
this final rule is not subject to the requirements of sections 202 and 
205 of UMRA.
    This final rule is also not subject to the requirements of section 
203 of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. Small governments 
may perform lead-based paint inspections, risk assessments, or 
abatements, or operate schools that are child-occupied facilities. EPA 
generally measures a significant impact under UMRA as being 
expenditures, in the aggregate, of more than 1% of small government 
revenues in any 1 year. As explained in Unit VI.C., the final rule is 
expected to result in small government impacts well under 1% of 
revenues. EPA has determined therefore that the final rule does not 
significantly affect small governments. Additionally, EPA has 
determined that the final rule does not uniquely affect small 
governments, as the final rule is not targeted at small governments, 
does not primarily affect small governments, and does not impose a 
different burden on small governments than on other entities that 
perform regulated activities.

E. Executive Order 13132

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This final rule merely 
establishes fees, as required by TSCA sections 402(a)(3) and 402(c)(3), 
to recover the costs of administering the previously promulgated 
Federal lead-based paint accreditation and certification programs. 
Thus, Executive Order 13132 does not apply to this final rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicited comment on the proposed rule 
from State and local officials.

F. Executive Order 13175

    This action does not have tribal implications, as specified in 
Executive Order 13175, entitled Consultation and Coordination with 
Indian Tribal Governments (65 FR 67249, November 9, 2000). This final 
rule would only establish fees, as required by TSCA sections 402(a)(3) 
and 402(c)(3), to recover the costs of administering the previously 
promulgated Federal lead-based paint accreditation and certification 
programs. Thus, Executive Order 13175 does not apply to this final 
rule.

G. 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 it is not economically 
significant as defined in Executive Order 12866, and because the Agency 
does not believe the environmental health or safety risks addressed by 
this action present a disproportionate risk to children. This final 
rule merely establishes fees, as required by TSCA sections 402(a)(3) 
and 402(c)(3), to recover the costs of administering the previously 
promulgated Federal lead-based paint accreditation and certification 
programs.

H. Executive Order 13211

    This final rule is not subject to Executive Order 13211, entitled 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-

[[Page 11869]]

113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies. NTTAA directs EPA to provide Congress, through OMB, 
explanations when the Agency decides not to use available and 
applicable voluntary consensus standards.
    This action does not involved technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898

    Executive Order 12898, entitled Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994) establishes Federal 
executive policy on environmental justice. Its main provision directs 
Federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This action merely establishes fees, as required by TSCA 
sections 402(a)(3) and 402(c)(3), to recover the costs of administering 
the previously promulgated Federal lead-based paint accreditation and 
certification programs.

VII. Congressional Review Act

     The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report to each House of the Congress and 
the Comptroller General of the United States. EPA will submit a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
United States prior to publication of the rule in the Federal Register. 
This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 745

     Environmental protection, Administrative practice and procedure, 
Children, Fees, Housing, Lead, Lead-based paint, Renovation.


    Dated: March 12, 2009.
Lisa P. Jackson,
Administrator.

0
 Therefore, 40 CFR chapter I is amended as follows:

PART 745--[AMENDED]

0
1. The authority citation for part 745 continues to read as follows:

    Authority: 15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.


0
2. Section 745.92 is added to subpart E to read as follows:


Sec.  745.92  Fees for the accreditation of renovation and dust 
sampling technician training and the certification of renovation firms.

    (a) Persons who must pay fees. Fees in accordance with paragraph 
(b) of this section must be paid by:
    (1) Training programs--(i) Non-exempt training programs. All non-
exempt training programs applying to EPA for the accreditation and re-
accreditation of training programs in one or more of the following 
disciplines: Renovator, dust sampling technician.
    (ii) Exemption. No fee shall be imposed on any training program 
operated by a State, federally recognized Indian Tribe, local 
government, or non-profit organization. This exemption does not apply 
to the certification of firms or individuals.
    (2) Firms. All firms applying to EPA for certification and re-
certification to conduct renovations.
    (b) Fee amounts--(1) Certification and accreditation fees. Initial 
and renewal certification and accreditation fees are specified in the 
following table:


------------------------------------------------------------------------
                                                       Re-accreditation
                                                        (every 4 years,
        Training Program             Accreditation        see 40 CFR
                                                       745.225(f)(1) for
                                                           details)
------------------------------------------------------------------------
Initial Renovator or Dust         $560                $340
 Sampling Technician Course
------------------------------------------------------------------------
Refresher Renovator or Dust       $400                $310
 Sampling Technician Course
------------------------------------------------------------------------
Renovation Firm                   Certification       Re-certification
                                                       (every 5 years
                                                       see 40 CFR
                                                       745.89(b))
------------------------------------------------------------------------
Firm                              $300                $300
Combined Renovation and Lead-     $550                $550
 based Paint Activities Firm
 Application
Combined Renovation and Lead-     $20                 $20
 based Paint Activities Tribal
 Firm Application
Tribal Firm                       $20                 $20
------------------------------------------------------------------------


    (2) Lost certificate. A $15 fee will be charged for the replacement 
of a firm certificate.
    (c) Certificate replacement. Firms seeking certificate replacement 
must:
    (1) Complete the applicable portions of the ``Application for 
Firms'' in accordance with the instructions provided.
    (2) Submit the application and a payment of $15 in accordance with 
the instructions provided with the application package.
    (d) Failure to remit fees. (1) EPA will not provide certification, 
re-certification, accreditation, or re-accreditation for any firm or 
training program that does not remit fees described in paragraph (b) of 
this

[[Page 11870]]

section in accordance with the procedures specified in 40 CFR 745.89.
    (2) EPA will not replace a certificate for any firm that does not 
remit the $15 fee in accordance with the procedures specified in 
paragraph (c) of this section.

0
3. Section 745.238 of subpart L is amended as follows:

0
a. Revise the table in paragraph (c)(1).

0
b. Remove the phrase ``to Conduct Lead-based Paint Activities'' in 
paragraph (d)(1)(ii).

0
c. Remove the phrase ``to Conduct Lead-based Paint Activities'' in 
paragraph (e)(1)(ii).


Sec.  745.238  Fees for accreditation and certification of lead-based 
paint activities.

* * * * *
    (c) * * *
    (1) * * *


------------------------------------------------------------------------
                                                       Re-accreditation
                                                        (every 4 years,
        Training Program             Accreditation        see 40 CFR
                                                       745.225(f)(1) for
                                                           details)
------------------------------------------------------------------------
Initial Course                                        ..................
Inspector.......................  $870..............  $620
Risk assessor...................  $870..............  $620
Supervisor......................  $870..............  $620
Worker..........................  $870..............  $620
Project Designer................  $870..............  $620
------------------------------------------------------------------------
Refresher Course                                      ..................
Inspector.......................  $690..............  $580
Risk assessor...................  $690..............  $580
Supervisor......................  $690..............  $580
Worker..........................  $690..............  $580
Project Designer................  $690..............  $580
------------------------------------------------------------------------
Lead-based Paint Activities--     Certification       Re-certification
 Individual                                            (every 3 years,
                                                       see 40 CFR
                                                       745.226(e)(1) for
                                                       details)
------------------------------------------------------------------------
Inspector                         $410                $410
Risk assessor...................  $410..............  $410
Supervisor......................  $410..............  $410
Worker..........................  $310..............  $310
Project designer................  $410..............  $410
Tribal certification (each        $10...............  $10
 discipline).
------------------------------------------------------------------------
Lead-based Paint Activities--     Certification       Re-certification
 Firm                                                  (every 3 years,
                                                       see 40 CFR
                                                       745.226(f)(7) for
                                                       details)
------------------------------------------------------------------------
Firm                              $550                $550
Combined Renovation and Lead-     $550                $550
 based Paint Activities Firm
 Application
Combined Renovation and Lead-     $20                 $20
 based Paint Activities Tribal
 Firm Application
Tribal Firm                       $20                 $20
------------------------------------------------------------------------

* * * * *
[FR Doc. E9-6167 Filed 3-19-09; 8:45 am]
BILLING CODE 6560-50-S


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