29170 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT

Office of the Secretary

24 CFR Parts 35, 36 and 37

[Docket No. FR–3482–P–01]

RIN 2501–AB57

Office of Lead-Based Paint Abatement

and Poisoning Prevention;

Requirements for Notification,

Evaluation and Reduction of LeadBased Paint Hazards in Federally

Owned Residential Property and

Housing Receiving Federal Assistance

AGENCY: Office of the Secretary—Office

of Lead-Based Paint Abatement and

Poisoning Prevention, HUD.

ACTION: Proposed rule.

SUMMARY: This proposed rule

implements sections 1012 and 1013 of

the Residential Lead-Based Paint Hazard

Reduction Act of 1992, Title X of the

Housing and Community Development

Act of 1992. These sections set forth

significant new requirements

concerning lead-based paint hazard

notification, evaluation, and reduction

for federally owned residential property

and housing receiving Federal

assistance. This proposed rule

constitutes a major revision of the

Department’s lead-based paint

regulations. For the first time, HUD’s

lead-based paint requirements for all

Federal programs will be consolidated

in the Code of Federal Regulations. One

part or subpart will set out

programmatic requirements concerning

lead-based paint hazard notification,

evaluation and reduction for all covered

HUD programs, as well as programs of

other Federal agencies. One part or

subpart will distill information

concerning how to perform lead-based

paint hazard evaluation and reduction

activities, such as risk assessment and

interim controls, based on the HUD

Guidelines for the Evaluation and

Control of Lead-Based Paint Hazards in

Housing. Another part or subpart will

set out requirements concerning leadbased paint notification for all pre-1978

residential property sold or leased,

including non-federally related

privately owned residential property.

(This last part or subpart was published

jointly by HUD and the Environmental

Protection Agency as a proposed rule,

on November 2, 1994; a final rule is

expected soon.)

DATES: Comments on this proposed rule

must be received on or before

September 5, 1996.

The deadline for comments on the

information collection requirements is

August 6, 1996, although commenters

are advised that a comment is best

assured of having its full effect if it is

received by the Office of Management

and Budget (OMB) within 30 days of

publication.

ADDRESSES: Interested persons are

invited to submit comments regarding

this proposed rule to the Rules Docket

Clerk, Office of General Counsel, room

10276, Department of Housing and

Urban Development, 451 7th Street, SW,

Washington, DC 20410–0500.

Communications should refer to the

above docket number and title.

Facsimile (FAX) comments are not

acceptable. A copy of each

communication submitted will be

available for public inspection and

copying between 7:30 a.m. and 5:30

p.m. weekdays at the above address.

Comments on the proposed

information collection requirements

must refer to FR–3482, Requirements for

Notification, Evaluation and Reduction

of Lead-Based Paint Hazards in

Federally Owned Residential Property

and Housing Receiving Federal

Assistance, and must be sent to:

Joseph F. Lackey, Jr., HUD Desk Officer,

Office of Management and Budget,

New Executive Office Building,

Washington, DC 20503

and

Reports Liaison Officer, Office of LeadBased Paint Abatement and Poisoning

Prevention, Department of Housing &

Urban Development, 451 7th Street

SW., Room 4244, Washington, DC

20410.

FOR FURTHER INFORMATION CONTACT: For

further information on part 36 in the

proposed rule, contact Joan Catherine

Tetrault, and for further information on

part 37 of the proposed rule contact

Conrad Arnolts. The address for both of

these persons is: Office of Lead-Based

Paint Abatement and Poisoning

Prevention, Department of Housing and

Urban Development, 451 7th Street, SW,

Room B–133, Washington, DC 20410–

0500, Telephone: (202) 755–1805, Email: JoanlC.lTetrault@hud.gov, or

ConradlC.lArnolts@hud.gov. For

legal questions, contact Kenneth A.

Markison or John B. Shumway, Office of

General Counsel, Room 9262,

Department of Housing and Urban

Development, Telephone: (202) 708–

9988, E-mail:

JohnlB.lShumway@hud.gov. For

hearing- and speech-impaired persons,

these numbers may be accessed via TTY

(text telephone) by calling the Federal

Information Relay Service at 1–800–

877–8339.

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act Statement

The information collection

requirements contained in sections

36.63, 36.64, 36.70, 36.84, 36.144,

36.162, 36.164, 36.168, 36.170, 36.188,

36.208, 36.230, 36.232, 36.256, 36.274,

36.276, 36.284, 36.294, and 36.302 of

this proposed rule have been submitted

to the Office of Management and Budget

(OMB) for review under the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501–

3520). An agency may not conduct or

sponsor, and a person is not required to

respond to, a collection of information

unless the collection displays a valid

control number.

Information on the estimated public

reporting burden and where to send

comments is provided under the

preamble heading, Other Matters. OMB

is required to make a decision

concerning the collection of information

contained in these proposed regulations

between 30 and 60 days after

publication of this document in the

Federal Register. Therefore, a comment

to OMB is best assured of having its full

effect if OMB receives it within 30 days

of publication. This does not affect the

deadline for the public to comment on

the proposed rule.

II. Background

A. Lead Poisoning

Childhood lead poisoning is ‘‘the

most common environmental disease of

young children,’’ (‘‘Strategic Plan for the

Elimination of Lead Poisoning’’, Centers

for Disease Control (‘‘CDC’’), U.S.

Department of Health and Human

Services, Atlanta, Georgia, 1991)

eclipsing all other environmental health

hazards found in the residential

environment (‘‘The Nature and Extent of

Lead Poisoning in Children in the

United States: A Report to Congress’’,

Agency for Toxic Substances and

Disease Registry, U.S. Department of

Health and Human Services, Atlanta,

Georgia, 1988) (hereafter ‘‘ATSDR,

1988’’). Lead is highly toxic and affects

virtually every system of the body. At

high exposure levels, lead poisoning can

cause coma, convulsions, and death.

While adults can suffer from excessive

lead exposures, the groups most at risk

are fetuses, infants, and children under

age six. At low levels, the neurotoxic

effects of lead have the greatest impact

on children’s developing brains and

nervous systems, causing reductions in

IQ and attention span, reading and

learning disabilities, hyperactivity, and

behavioral problems (Davis, J.M., R.

Elias and L. Grant ‘‘Current Issues in

Human Lead Exposure and Regulation
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29171

of Lead’’, Neurotoxicologist, 14(2–

3):1528, 1993). These effects have been

identified in many carefully controlled

research studies (‘‘Measuring Lead

Exposure in Infants, Children and Other

Sensitive Populations’’, Committee on

Measuring Lead in Critical Populations,

Board on Environmental Studies and

Toxicology, Commission on Life

Sciences, National Academy of

Sciences, 1993). However, the vast

majority of childhood lead-poisoning

cases go undiagnosed and untreated,

since most poisoned children have no

obvious symptoms.

Although significant declines have

been observed in the overall mean blood

lead levels of children, which can be

attributed to Federal Government

actions resulting in the removal of lead

from gasoline and soldered cans,

approximately 1.7 million children are

estimated to have blood lead levels high

enough to be of a health concern. Lead

poisoning affects children across all

socioeconomic strata and in all regions

of the country. However, because leadbased paint hazards are most severe in

older housing in disrepair, the poor in

inner cities are disproportionately

affected. In some inner city

communities, over half of all young

children have lead levels exceeding the

CDC threshold of concern (10

micrograms per deciliter). Nationwide,

African-American children of low and

middle income families are twice as

likely to be lead poisoned as white

children of similar income families

(Phase I of the Third National Health

and Nutrition Examination Survey,

NHANES III, 1988–1992, as reported in

the Journal of American Medical

Association, July 27, 1994).

Today, children in the United States

are lead poisoned primarily through

ingestion by normal hand-to-mouth

activity and, to a lesser extent,

inhalation. Because lead is ubiquitous

in industrial societies, there are many

sources and pathways of lead exposure.

The foremost source of childhood lead

exposure in the United States today is

lead-based paint and the accompanying

lead-contaminated dust and soil found

in and around older houses

(‘‘Preventing Lead Poisoning in Young

Children’’, CDC, U.S. Department of

Health and Human Services, Atlanta,

Georgia, 1991; Rabinowitz, M., J.

Leviton, H. Needleman, D. Bellinger and

C. Waternaux, ‘‘Environmental

Correlates of Infant Blood Lead Levels

in Boston’’, Environmental Research

38:96–107, 1985). As early as 1897,

lead-based paint was identified as a

cause of childhood lead poisoning

(Turner, 1897). Many countries

prohibited the use of lead in residential

paints as far back as 1922 (Rabin, R.,

‘‘Warnings Unheeded: A History of Lead

Poisoning’’, American Journal of Public

Health 79:1668–1674, 1989). Lead was a

major ingredient in most interior and

exterior house oil-based paints prior to

1950, with some paints containing as

much as 50 percent lead by dry weight.

In the early 1950s, other ingredients

became more popular, but some lead

pigments, corrosion inhibitors, and

drying agents were still used.

In the 1950’s and 1960’s, several large

cities in the United States banned the

use of lead-based paint (using varying

definitions) on interior surfaces in

residential structures. In 1955, the paint

industry adopted a voluntary standard

limiting the use of lead in interior paints

to no more than 1 percent by weight of

nonvolatile solids. In 1972, HUD

prohibited the use of lead-based paint

(at the 1 percent standard) in HUDassociated housing. In 1972, the

Consumer Product Safety Commission

(‘‘CPSC’’) reduced the acceptable lead

content in residential paint to 0.5

percent, and in 1978 subsequently

banned the sale of residential paint

containing greater than 0.06 percent

lead. CPSC also prohibited the use of

such paint in residences and other areas

where consumers have direct contact

with painted surfaces.

HUD estimates that three-quarters of

pre-1980 dwelling units contain some

lead-based paint. The likelihood, extent,

and concentration of lead-based paint

all increase with the age of the building.

Fully 90 percent of privately owned

dwelling units constructed before 1940

contain some lead-based paint, 80

percent of dwelling units constructed

between 1940 and 1959, and 62 percent

of dwelling units constructed between

1960 and 1979 (‘‘Comprehensive and

Workable Plan for the Abatement of

Lead-Based Paint in Privately-Owned

Housing: A Report to Congress’’, U.S.

Department of Housing and Urban

Development, Washington, D.C.,

December 7, 1990). Because the greatest

risk is in residential property

constructed before 1960, older property

generally commands a higher priority

for lead hazard controls. However, there

is evidence that significant amounts of

lead-based paint were sold as late as

1971, when New York City’s Health

Department tested 78 ‘‘new’’ residential

paints and found eight of them to have

lead ranging from 2.6 percent to 10.8

percent (Bird, D., ‘‘High Lead Paints

Listed by City’’, NY Times, August 4,

1971:18).

For many years, the conventional

belief was that in order to be poisoned

children must eat lead paint chips. More

recent medical research has determined

that the most common cause of

childhood lead exposure is the

ingestion, through hand-to-mouth

transmission, of lead-contaminated

surface dust (Clark, C.S., R. Bornschein,

P. Succop, S. Roda and B. Peace, ‘‘Urban

Lead Exposures of Children in

Cincinnati, Ohio’’, Journal of Chemical

Speciation and Bioavailability, 3(3⁄4):

163–171, 1991; Bellinger, D., J. Sloman,

A. Leviton, M. Rabinowitz, H.

Needleman and C. Waternaux, ‘‘Low

Level Lead Exposure and Children’s

Cognitive Function in the Preschool

years’’, Pediatrics, (87):219–227, 1991).

Lead-contaminated dust may be so fine

that it cannot be seen by the naked eye.

In addition, lead-contaminated dust is

difficult to clean up. Leaded dust is

generated when lead-based paint is

damaged by moisture, abraded on

friction and impact surfaces, or is

disturbed in the course of repainting,

renovation, repair, or abatement. Lead

can also be tracked into homes from

exterior dust and soil.

Children can also be exposed to lead

found in bare soil. High levels of lead

in soil around the foundation of a house

may come from the scraping and

repainting of exterior lead-based paint

or simply the deterioration of such paint

(Ter Harr, G. and R. Arnow, ‘‘New

Information on Lead in Dirt and Dust as

Related to the Childhood Lead

Problem’’, Environmental Health

Prospectives, May, 1974:83–89; Linton,

R.W., D.F.S. Natush, R.L. Solomon and

C.A. Evans, ‘‘Physicochemical

Characterization of Lead in Urban Dusts:

A Microanalytical Technique to Lead

Tracing’’, Environmental Science

Technology, 14:159–164, 1980). Soil is

also contaminated with lead by the

fallout of lead emissions from the

combustion of leaded automobile

gasoline and from industrial sources

(ATSDR, 1988, supra). In some areas,

high leaded soil levels result from

factory and smelter emissions or

deteriorating lead-based paint on steel

structures, such as bridges. Bare soil

that is contaminated with lead poses a

hazard to children who play in it.

Based on the belief that children had

to eat lead-based paint chips to be

poisoned, the typical response to lead

poisoning during the 1970s and early

1980s consisted of removing

deteriorated and/or accessible leadbased paint by scraping, uncontrolled

sanding, or open flame burning, all of

which generated large amounts of lead

dust. Approaches differed slightly from

city to city. Some cities required

removal of all lead-based paint to a

certain height, such as 5 feet; others

required only that deteriorating paint be

removed. However, these traditional
29172 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

abatements had one common

characteristic: little attention was paid

to controlling, containing and cleaning

up leaded dust. In many cases, these

paint removal methods actually

aggravated the problem, increasing lead

exposures and poisoning workers and

children in the process. Several studies

found that uncontrolled abatement and

inadequate cleanup caused increased

blood lead levels (Farfel, M. and J.J.

Chisolm, Jr, ‘‘Health and Environmental

Outcomes of Traditional and Modified

Practices for Abatement of Residential

Lead-Based Paint’’, American Journal of

Public Health, 80:10,1240–1245, 1990;;

Rabinowitz, M., A. Leviton and D.

Bellinger, ‘‘Home Refinishing, Lead

Paint and Infant Blood Lead Levels’’,

American Journal of Public Health,

75(4):403–404, 1985; Amitai, Y., J.W.

Graef, M.J. Brown, R.S. Gerstle, N. Kahn

and P.E. Cochrane, ‘‘Hazards of

Deleading Homes of Children with

Poisoning’’, American Journal of

Diseases of Children, 141:758–760,

1987). The Department’s Lead-Based

Paint: Guidelines for Hazard

Identification and Abatement in Public

and Indian Housing, (1990) (‘‘Interim

Guidelines’’) properly emphasized the

danger of lead-contaminated dust and

the need for worker protection and

thorough cleanup.

Title X redefines the concept of ‘‘leadbased paint hazards.’’ Under prior

Federal legislation, a lead-based paint

hazard was defined as any paint greater

than or equal to one milligram per

square centimeter (mg/cm2) of lead,

regardless of its condition or location.

Title X states that a lead-based paint

hazard is ‘‘any condition that causes

exposure to lead from leadcontaminated dust, lead-contaminated

soil or lead-contaminated paint that is

deteriorated or present in accessible

surfaces, friction surfaces, or impact

surfaces that would result in adverse

human health effects.’’ Thus, under this

definition, intact lead-based paint on

most walls and ceilings is not

considered a ‘‘hazard,’’ although the

condition of the paint should be

monitored and maintained to ensure

that it does not become deteriorated.

While most efforts to address lead

hazards in residential property will now

be aimed at reducing lead-based paint

hazards as defined by Title X, Federal

law makes one notable exception: in

public and Indian housing all leadbased paint and lead-based paint

hazards must be abated during

modernization.

Title X defines two methods of

identifying or ‘‘evaluating’’ lead-based

paint hazards or lead-based paint. One

method, ‘‘risk assessment’’, includes

wipe sampling and other environmental

sampling to identify lead-based paint

hazards. The other, ‘‘inspection’’ (or

‘‘paint inspection’’), determines the

presence only of lead-based paint. Leadbased paint hazard evaluation may also

be accomplished by a combination of

the two methods. The combination

approach results in an identification of

all lead-based paint and lead-based

paint hazards. Title X provides for three

types of lead-based paint hazard control:

interim controls, abatement of leadbased paint hazards, and complete

abatement of all lead-based paint.

Interim controls are ‘‘measures designed

to reduce temporarily human exposure

or likely exposure to lead-based paint

hazards.’’ Abatement means ‘‘a set of

measures designed to permanently

eliminate lead-based paint hazards’’ or

lead-based paint. To ensure that leadbased paint hazard evaluation and

reduction is carried out safely and

effectively, Title X imposes new

requirements for consistency and

quality control.

B. Legislative and Regulatory History

The existing lead-based paint

regulations pertaining to the

Department’s programs, as well as to all

federally owned residential property,

were written pursuant to the passage of

the Lead-Based Paint Act, as amended

prior to 1992. This legislation required

the Secretary to ‘‘establish procedures to

eliminate as far as practicable the

hazards of lead-based paint poisoning

with respect to any existing housing

which may present such hazards and

which is covered by an application for

mortgage insurance or housing

assistance payments under a program

administered by the Secretary.’’ HUD

interpreted the phrase ‘‘housing

assistance payments’’ broadly and

therefore in 1976 the Department

drafted regulations to eliminate the

hazards of lead-based paint for virtually

all of its programs. Part 35 of the

Department’s regulations in Title 24 was

promulgated setting forth general

procedures for the inspection and

treatment of defective paint surfaces in

all HUD-associated housing. Subsection

35.5(c), however, gave each Assistant

Secretary the authority to develop

regulations pertaining to their specific

areas of responsibility, and varying

program regulations concerning leadbased paint now exist throughout Title

24.

The Department’s lead-based paint

regulations have been amended from

time to time in response to changes in

the law, court orders and increased

knowledge about the hazards and

treatment of lead-based paint. The most

recent Department-wide regulatory

revisions pertaining to lead-based paint

were made in 1986, 1987 and 1988.

Some additional revisions specific to

the public and Indian housing programs

were issued in 1991.

On May 12, 1994, at 59 FR 24850, the

Department published a proposed rule

for comment that was intended to be the

first phase of a process to revise HUD’s

lead-based paint regulations. In this first

phase, HUD intended to remedy

inaccuracies in existing regulations and

respond to advancements in the state of

knowledge in the field of lead-based

paint testing and hazard reduction. The

proposed rule did not reflect changes in

the Title X amendment to the LeadBased Paint Act. However, many of the

public comments the Department

received on this proposed rule reflected

a misimpression that the proposed rule

was intended to implement Title X.

Other comments were impatient with

HUD and felt strongly that the

Department should devote its resources

to implementing the new legislation,

rather then making minor adjustments

to the existing regulations. The

Department agreed and consequently

the May 12, 1994 proposed rule was

withdrawn. The proposed changes to

the regulations, where consistent with

Title X, have been incorporated into this

rulemaking.

Title X represents a new and

sweeping approach to the problem of

lead-based paint poisoning of children,

necessitating a comprehensive revision

of HUD’s lead-based paint regulations.

Title X amends what had previously

been general language contained in the

Lead-Based Paint Act and sets out

specific requirements for federally

owned residential property and housing

receiving Federal assistance. Title X

stresses identification of hazards,

notification to occupants of the

existence of these hazards, and, in many

cases, interim control and monitoring of

lead-based paint hazards, although

abatement of lead-based paint hazards is

not precluded. This proposed rule also

reflects current knowledge of the causes

of lead poisoning and current leadbased paint hazard evaluation and

reduction technologies and practices.

The presence of lead-based paint will be

more accurately identified, with fewer

false negatives or false positives.

Likewise, the existence, nature, severity

and location of lead-based paint hazards

(in dust, soil and deteriorated paint)

will be more accurately identified and

reported. By improving lead-based paint

hazard evaluation, decisions about

hazard reduction activities will be more

fully informed and available resources

will be better targeted to reduce
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29173

exposure to occupants and to the

environment.

III. HUD Reinvention

In 1993 the Department launched a

major restructuring, or reinvention, to

meet the changing housing and

development needs of communities

across the country. HUD’s reinvention

efforts took place in the context of a

broader, government-wide reinvention

process, the National Performance

Review, initiated by President Clinton

and Vice-President Gore. The

Department’s proposed reinvention

process will consolidate HUD programs

by replacing numerous individual

programs, each imposing its own

prescriptive rules and requirements,

with far fewer streamlined funds, which

would stress performance-based

objectives. These new funds will give

State and local decision makers

maximum flexibility to tailor Federal

resources in response to local

circumstances, needs and priorities. The

Department also proposes to phase out

direct public housing subsidies to

housing agencies, converting the funds

to tenant-based rental assistance that

will allow residents an expanded choice

of housing. Finally, the Department’s

reinvention will transform the Federal

Housing Administration (FHA) into a

business-like, government-owned

corporation, enabling it to work more

effectively and improve its efficiency.

In order to keep pace with the

changes HUD is undertaking, the

Department’s program regulations must

also change. Although the proposed

lead-based paint rule was developed to

implement the statutory requirements of

Title X for federally owned residential

property and housing receiving Federal

assistance, the Department saw this as

an opportunity to revise all of its leadbased paint regulations to keep pace

with changes in lead-based paint

technology and in HUD service delivery.

The proposed rule consolidates

numerous lead-based paint regulations

found throughout HUD’s program

regulations into two parts (parts 36 and

37) of title 24 of the Code of Federal

Regulations. At the final rule stage, the

Department will consider combining all

of its lead-based paint regulations into

one part of the Code of Federal

Regulations.

The Department is seeking to

eliminate redundant lead-based paint

regulations and to achieve a measure of

consistency among the lead-based paint

requirements for different HUD

programs, recognizing that HUD clients

often receive funding from several HUD

programs and must juggle separate and

sometimes inconsistent sets of program

regulations. Furthermore, the

Department is engaged in a larger effort

to streamline and eliminate unnecessary

regulations, as part of the reinvention of

HUD, and the extent to which this larger

effort may impact our objective to

eliminate unnecessary lead-based paint

regulations is not yet clear. As a result,

the Department has not included as part

of this proposed rule the specific

deletions of lengthy lead-based paint

program regulations and new references

and cross citations to parts 36 and 37.

These deletions, as well as new

references and cross citations also will

be added during final rulemaking.

The proposed rule groups HUD

programs by the type of assistance

provided. This was done to ease the

burden on HUD clients in locating the

lead-based paint requirements that

correspond to the type of assistance they

receive. For instance, a client receiving

HUD funds for rehabilitation will find

only one rehabilitation subpart, rather

than a rehabilitation subpart for

multifamily property and a separate

subpart on rehabilitation using HOME

or CDBG funds. In addition, grouping

HUD programs by type of assistance

allows the Department greater flexibility

as it consolidates many individual

programs into the three performancebased funds. For example, the proposed

rule has a subpart for public housing as

it now exists and a subpart for tenantbased rental assistance. If a conversion

of public housing subsidies to tenantbased rental assistance occurs, the

appropriate lead-based paint

requirements will already be in place.

Finally, the proposed rule reflects

HUD’s efforts to balance the practical

need for cost-effective, affordable leadbased paint hazard notification,

evaluation and reduction measures with

the statutory requirements of Title X as

well as with HUD’s duty to protect

children living in a residential property

that is owned or assisted by the Federal

government from lead-based paint

poisoning. Where possible, the

proposed rule provides opportunities

for HUD clients to implement hazard

reduction measures that will best meet

the needs of their communities. For

example, in subpart B of part 36, States,

Indian tribes and insular areas that meet

certain eligibility criteria have the

opportunity to develop their own leadbased paint procedures and localities

located in such a State have the option

of adopting these State procedures (See

Section VII A.3 of the Preamble below).

IV. Public Input on Rulemaking

Consistent with Executive Order

12866, HUD has increased public

participation in the regulatory

development process. Because of the

magnitude of the changes required in

HUD’s lead-based paint proposed rule

and the potential impact of these

changes, public involvement was

crucial to the rulemaking process. The

three main avenues for public

involvement in the development of the

proposed rule were the HUD Guidelines

for the Evaluation and Control of LeadBased Paint Hazards in Housing (June

1995) (‘‘HUD Guidelines’’), the

recommendations from the Task Force

on Lead-Based Paint Hazard Reduction

and Financing, and three major

meetings of HUD clients to seek input

on the implementation of Title X.

A. HUD Guidelines

The HUD Guidelines were mandated

by Section 1017 of Title X. They were

developed by housing, public health

and environmental professionals with

broad experience in lead-based paint

hazard identification and control. The

HUD Guidelines form the basis for many

of the lead-based paint hazard

evaluation and reduction methods

described in Part 37 of the proposed

rule, and are intended to help property

owners, government agencies and

private contractors sharply reduce

children’s exposure to lead-based paint,

without adding unnecessarily to the cost

of housing.

B. Title X Task Force

The creation of the Title X Task Force

on Lead-Based Paint Hazard Reduction

and Financing was also mandated by

Section 1015 of Title X. The Task Force

submitted its recommendations, Putting

the Pieces Together: Controlling Lead

Hazards in the Nation’s Housing, to

HUD Secretary Henry Cisneros and EPA

Administrator Carol Browner in July

1995. Members of the Task Force

included representatives from Federal

agencies, the Federal Home Loan

Mortgage Corporation, the Federal

National Mortgage Association, the

building and construction industry,

landlords, tenants, primary lending

institutions, private mortgage insurers,

single family and multifamily real estate

interests, nonprofit housing developers,

property liability insurers, public

housing agencies, low-income housing

advocacy organizations, lead-poisoning

prevention advocates and communitybased organizations serving

communities at high-risk for childhood

lead poisoning. The mandate of the Task

Force was to address sensitive issues

related to lead-based paint hazards in

private housing, including standards of

hazard evaluation and control, financing

hazard control activities, and liability

and insurance for rental property
29174 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

owners and hazard control contractors.

The Department used the Task Force

recommendations to guide the

development of the lead-based paint

requirements for Section 8 tenant-based

rental assistance programs set forth in

Part 36, subpart O, of the proposed rule.

C. Meetings with HUD Clients

Finally, the Department held three

meetings with HUD clients on the

potential implications of Title X on

HUD programs. The meetings involved

HUD constituents, grantees, and field

staff of the Offices of Public and Indian

Housing (PIH), Community Planning

and Development (CPD), and Housing,

as well as advocacy and tenant

representatives. Participants shared

their thoughts on several Title X issues

including: risk assessment and interim

controls, hazard reduction activities

during the course of rehabilitation,

occupant notice of hazard evaluation

and reduction activities, and children

with elevated blood-lead levels.

Additional written comments were

accepted from participants after the

meetings. Participants’ written

comments, as well as meeting

transcripts, are available for public

review between 7:30 a.m. and 5:30 p.m.

weekdays, in the Office of the Rules

Docket Clerk, Office of General Council,

U.S. Department of Housing and Urban

Development, 451 7th Street SW.,

Washington, DC 20410–0500.

V. Scope and Applicability.

A. Sections 1012 and 1013 of Title X

This proposed rule implements the

requirements of the Lead-Based Paint

Act, as amended by Section 1012 and

Section 1013 of Title X. Section 1012(a)

of Title X amends the first sentence of

the Lead-Based Paint Act to add the

phrase ‘‘or otherwise receives more than

$5,000 in project-based assistance under

a Federal housing program’’ so that 42

U.S.C. 4822(a) now reads as follows:

The Secretary of Housing and Urban

Development * * * shall establish

procedures to eliminate as far as practicable

the hazards of lead-based paint poisoning

with respect to any existing housing which

may present such hazards and which is

covered by an application for mortgage

insurance or housing assistance payments

under a program administered by the

Secretary or otherwise receives more than

$5,000 in project-based assistance under a

Federal housing program.

Section 1012 sets out minimum

procedures for all ‘‘target housing’’ that

falls within the three categories

discussed above—mortgage insurance,

housing assistance payments or more

than $5,000 in project-based assistance.

Target housing is defined in Title X as

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) or any

0-bedroom dwelling unit. HUD has

interpreted the exceptions for elderly

and disabled housing (See § 36.2) to

apply only to residential property which

is designated exclusively for elderly or

disabled use. After considerable

discussion, HUD has determined that it

would be unworkable and contrary to

the intent of the statute to expand these

exceptions to each particular dwelling

unit occupied by an elderly or disabled

person, regardless of its designation.

In the past, the Department has taken

the position that the requirements of the

Lead-Based Paint Act applied only to

new applications for mortgage insurance

or other types of housing assistance,

under any program administered by the

Secretary. The Department interprets

the new phrase added by Section

1012(a), ‘‘more than $5,000 in projectbased assistance under a Federal

housing program’’, to cover any Federal

housing program administered by any

Federal agency which provides projectbased assistance. Consequently, subpart

I of Part 36 applies to both new and

existing inventory receiving projectbased assistance under a HUD program,

and subpart D applies these

requirements to other Federal agencies.

Finally, although Title X only requires

the Secretary to establish lead-based

paint procedures for residential

property receiving more than $5,000 in

project-based assistance, Subpart I

includes additional minimal lead-based

paint procedures (i.e. the procedures for

tenant-based rental assistance) for

multifamily property receiving less than

$5,000 in project-based assistance from

HUD. The Department also applies these

minimal lead-based paint procedures to

single family properties receiving

Section 8 Moderate Rehabilitation or

Project-Based Certificate assistance from

HUD. The Department wants to extend

some limited lead-based paint

protections to properties receiving

minimal project-based assistance and

also wants to relieve single family

owners with limited financial resources

from being required to comply with the

extensive lead-based paint requirements

for project-based assistance. These

additional minimal procedures were not

included in Subpart D for project-based

assistance provided by a Federal agency

other than HUD.

Under Title X, Congress is silent with

respect to whether the new minimum

procedures for lead-based paint hazard

notification, evaluation and reduction

apply to tenant-based rental assistance

and HUD’s examination of legislative

intent is inconclusive. Congress did not

amend the first sentence of the LeadBased Paint Act, set out above, to delete

or amend the phrase ‘‘housing

assistance payments.’’ HUD has

historically interpreted this general

phrase to cover virtually all types of

housing assistance, including tenantbased rental assistance—the type of

assistance that it seems to cover most

obviously. The legislative history for

Title X states, however, that housing

receiving tenant-based rental assistance

would be exempt from the Lead-Based

Paint Act, as amended by Title X.

Congress was concerned that, due to the

tendency of residential properties to

pass in and out of tenant-based Federal

assistance programs, it would be

unworkable and inequitable to impose

greater burdens on owners of such

properties than on other private

landlords. See Senate Committee on

Banking, Housing, and Urban Affairs,

Senate Report 102–332, July 23, 1992

(hereafter, ‘‘Senate Report 102–332’’).

In HUD’s view, Congress clearly did

not intend for HUD to apply the new

minimum procedures for lead-based

paint hazard notification, evaluation

and reduction set out in Title X to

tenant-based rental assistance. However,

HUD does not believe that Congress

intended to abolish HUD’s current

procedures, which serve to protect, in a

minimal way, the recipients of this type

of housing assistance. Rather, Congress

may have intended for the Department

to effectively retain its present leadbased paint requirements for tenantbased rental assistance. In its current

regulations, HUD requires tenant-based

rental property occupied by families

with children under six to meet the

minimal standard for lead-based paint

found in its Housing Quality Standards

(HQS). In this proposed rule, then, HUD

continues to require tenant-based rental

property to meet HQS. The Department,

however, modifies the lead-based paint

requirements in HQS somewhat, in

accordance with the general approach of

Title X, to require visual evaluation,

dust testing in some situations, paint

repair, cleanup, a response to an

elevated blood level (EBL) child and

related activities in accordance with

part 37.

Section 1013 amends 42 U.S.C.

4822(a)(3) to modify existing

requirements for the disposition (i.e.

sale) of all residential property

constructed before 1978 and owned by

a Federal agency. Consequently, the

Department includes here new subpart

C of Part 36 which sets out these

requirements concerning the disposition

of all federally owned residential
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29175

property. Elsewhere in Part 36, the

Department sets out specific

requirements for the disposition of

HUD-Owned Single Family and

Multifamily property.

Section 1013 adds 42 U.S.C. 4822(a)(3)(C),

which states the following: In the absence of

appropriations sufficient to cover the costs of

subparagraphs (A) and (B) (which contain

evaluation and abatement requirements for

pre-1960 housing, and evaluation and

notification requirements for housing

constructed between 1960 and 1978), these

requirements shall not apply to the affected

agency or agencies.

The Department interprets this

language to state that HUD (and other

Federal agencies that own residential

property covered herein) need not

comply with the requirements set out in

Section 1013 if sufficient funds are not

provided to the agency for this purpose.

In the Department’s view, it is

consistent with the intent of Congress to

nevertheless make some effort to

evaluate and treat deteriorated paint in

HUD-owned properties (similar to

existing procedures), even if funding is

not made available to the Department to

carry out more extensive lead-based

paint hazard evaluation and reduction.

Since these properties are owned by the

Department, HUD feels that it has the

authority to adopt an alternative

response to potential lead-based paint

hazards in the absence of sufficient

appropriations. Therefore, subparts F

and G of part 36, for HUD-Owned Single

Family Housing, and subparts J and K

of part 36, for HUD-Owned and

Mortgagee-in-Possession Multifamily

Property, set forth alternative

requirements when appropriated money

is available and when appropriated

money is not available. When

appropriated money is available, the

regulatory requirements track the

language of Section 1013. When

appropriated money is not available,

alternative regulatory requirements are

set forth. Other agencies may also wish

to develop alternative requirements to

those set out in part 36, subpart C, when

appropriated monies are not available.

B. Format

Throughout this proposed rule, leadbased paint hazard notification,

evaluation, and reduction requirements

represent the minimum activities that

are required under this proposed rule; of

course, parties may wish to voluntarily

undertake more extensive lead-based

paint activities. It should also be noted

that throughout part 36, paint repair or

interim controls of deteriorated paint

surfaces are required for various

programs and cross references to the

relevant subparts of part 37 concerning

treatment are included. These subparts

of part 37 each include a section

describing a de minimis level of paint

deterioration, consistent with the HUD

Guidelines, below which no action is

required. This de minimis level is

defined as not more than 10 square feet

of deteriorated paint on an exterior wall,

not more than 2 square feet on a

component with a large surface area

other than an exterior wall including,

but not limited to, interior walls,

ceilings, floors and doors, or not more

than 10 percent of the total surface area

on an interior or exterior component

with a small surface area including, but

not limited to, window sills, baseboards

and trim.

To avoid requiring evaluation efforts

that may have already been undertaken

by property owners and to minimize

costs, HUD has included exemptions for

required evaluation activities if

equivalent or more stringent evaluation

activities have already been conducted

and have indicated the absence of leadbased paint or lead-based paint hazards.

The proposed rule also provides

opportunities to forego evaluation

activities if certain lead-based paint

hazard reduction measures consistent

with the requirements of parts 36 and 37

have been conducted. In addition,

where paint inspection or risk

assessment are required, the proposed

rule provides the option to assume the

presence of lead-based paint or leadbased paint hazards or both and to

perform hazard reduction activities.

Finally, the requirements of visual

evaluation, paint repair and cleanup do

not apply if a suitable paint inspection

has already been completed indicating

the absence of lead-based paint (i.e.

lead-free).

An owner or recipient of Federal

assistance hoping to meet a lead-free

exemption may question whether

correcting for possible false (or

outdated) positive findings during leadbased paint inspections is permissible.

The owner or recipient always retains

the option of having additional tests

performed by certified paint inspectors.

Nothing in either the law or the

proposed regulation is intended to

revoke or restrict that right. An

additional test can sometimes clarify

whether or not lead-based paint is

present. For example, if an owner or

recipient believed that a previous

inspection had rendered a false positive

result (all measurement techniques

involve some small degree of sampling

and analytical error), the owner or

recipient could choose to have a

certified paint inspector retest the area

in question. If the additional testing by

a certified paint inspector indicated that

the initial positive results were false

(i.e., that there was in fact no lead-based

paint present), then the owner or

recipient would qualify for a lead-based

paint free exemption. Similarly,

suppose an owner or recipient first had

a test done in 1982 using an X-ray

fluorescence (XRF) device that indicated

the presence of lead-based paint.

Because testing procedures were less

reliable at that time (standard practice

often failed to consider the effect of the

substrate underneath the paint, or the

accuracy of the measurement and

instrument calibration checks were

often deficient), the owner or recipient

might choose to conduct a new test

using the improved methodology

available today. If this second test

indicated that lead-based paint was not

present, then the owner or recipient

would qualify for a lead-based paint free

exemption. As a third example, an

owner or recipient who had all leadbased paint removed from a property

following an earlier inspection could

choose to have a new inspection or

clearance examination conducted on the

abated property. If the new information

indicated that lead-based paint was no

longer present, then the owner or

recipient would qualify for a lead-based

paint free exemption. In all three cases,

if the second test confirmed the original

findings, or if the test was not

conducted by a certified paint inspector,

an exemption would not be available.

As stated above, the proposed rule

sets forth new parts 36 and 37 that,

together with part 35, subpart H,

comprise all of HUD’s regulatory

requirements for lead-based paint in a

single place. The numerous lead-based

paint requirements set out in various

program regulations will be deleted.

Part 36 describes the lead-based paint

requirements for each program covered

under the Lead-Based Paint Act,

grouped according to the manner in

which program responsibility is divided

in the Department and according to the

relevant requirements. The

requirements for single family and

multifamily property appear separately.

There are two single family property

disposition subparts and two

multifamily property disposition

subparts—one if appropriations are

sufficient and one if appropriations are

not sufficient. There are also separate

subparts for single family insured

property and multifamily insured

property, and for project- and tenantbased rental assistance programs. There

is one rehabilitation subpart and one

subpart for CPD non-rehabilitation

programs. The requirements for public

and Indian housing are located in a
29176 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

single subpart. There is also a subpart

that provides alternative procedures for

States receiving Federal housing

assistance, or operating a Federal

housing assistance program. Finally, the

requirements for properties owned by,

or receiving project-based assistance

from, a Federal agency other than HUD

are set out in two subparts.

The program requirements set out in

part 36 specifically reference the

procedural information for conducting

lead-based paint hazard evaluation and

reduction activities included in part 37.

Part 37 distills the extensive

information found in the HUD

Guidelines, in subparts on paint

inspection, risk assessment, interim

controls, abatement, occupant

protection, worksite preparation,

cleanup, clearance and monitoring. As

stated in the discussion of HUD’s

Reinvention efforts, the Department is

considering a more performance-based

approach to its lead-based paint hazard

evaluation and reduction requirements,

and may consolidate parts 36 and 37 in

the final rule. The Department requests

comments on the format of the proposed

rule, as well as the content.

C. Effective Date and Qualifications for

Conducting Lead-Based Paint Hazard

Evaluation and Reduction Activities

The proposed effective date of these

regulations is one year after the date of

publication of the final rule in the

Federal Register. HUD anticipates that a

final lead-based paint rule will be

published by September 1996. In

determining an appropriate effective

date, the Department considered two

options: the date of publication of the

final rule and 12 months after

publication of the final rule.

The argument in favor of an

immediate effective date is that Title X

(Sections 1012 and 1013) requires the

evaluation and reduction of lead-based

paint hazards in housing receiving

Federal assistance and residential

property owned by the Federal

government to take effect on January 1,

1995; any further delay in implementing

these requirements would pose a risk to

the health of children. The argument

against an immediate effective date is

that program administrators at all levels

of government, as well as property

owners and contractors performing leadbased paint activities, would not have

adequate education and training time to

implement the new technical standards,

requirements and procedures required

under the proposed regulation. The

Department is concerned that such a

scenario would likely result in a delay

in implementing the new lead-based

paint requirements, difficulty in

locating trained and certified workers,

unreliable hazard evaluation results,

and unsafe and ineffective hazard

control activities.

Further, the Department recognizes

that HUD clients conducting ongoing

program activities will need time to

incorporate, where feasible, the new

lead-based paint requirements into their

programs. HUD requests programspecific comments on the ‘‘event’’ to

which the effective date of the rule

should be linked with regard to ongoing

program activities. Specifically, should

HUD programs use (1) the date of the

funding agreement between the client

and HUD; (2) the date of the

expenditure of HUD funds; (3) the date

that the contract between the project

owner and the funding agency is signed;

or is there another more appropriate

date?

An effective date of 12 months after

publication of the final rule was chosen

by the Department as a way to allow all

parties—lead-based paint professionals,

housing agencies, State and local

government agencies, and private

property owners—time to prepare for

proper implementation of the new leadbased paint requirements. The effective

date will also coincide approximately

with the conclusion of the two-year

period associated with EPA’s training

and certification requirements, as

discussed below. The Department

shares the concern of the public health

community that further delays in

implementing the requirements will

place more children at risk of lead-based

paint poisoning. However, it seemed

impractical for HUD to establish an

immediate effective date for the

proposed rule, knowing that the

infrastructure necessary to carry it out

would not be fully in place.

The effective date issue is directly

related to the qualifications necessary

for persons carrying out lead-based

paint hazard evaluation and reduction

activities. The proposed rule requires

that virtually all lead-based paint hazard

evaluation and abatement activities

required in part 36 be conducted by

individuals and firms that are certified

in accordance with the new EPA

requirements for lead-based paint

activities, developed pursuant to

Section 1021 of Title X (adding Sections

402 and 404 of the Toxic Substances

Control Act (TSCA). The EPA training

and certification regulations were

published as a proposed rule on

September 2, 1994, and are expected as

of this writing to be published as a final

rule in 1996. States must have EPA

approved training and certification

programs in place within two years of

publication of the final EPA rule. The

EPA regulation will greatly affect the

availability of individuals and firms that

are trained and certified to conduct

lead-based paint activities in each State.

If the certification programs of the States

and EPA have not developed

sufficiently by the time HUD’s new

lead-based paint rule takes effect, the

Department will need to consider

temporary qualifications for persons

conducting lead-based paint hazard

evaluation and reduction activities. The

Department requests comments on the

certification requirement as well as the

effective date.

It should be noted that in part 36,

subpart N, public and Indian housing

agencies (‘‘HAs’’) conducting dust and

soil testing for public and Indian

housing are not required to be certified

in accordance with the new EPA

requirements for lead-based paint

activities. The Department recognizes

that this is inconsistent with the general

approach of the proposed rule.

However, HAs were required to

complete paint inspections by December

6, 1994 and many HAs have already

taken the initiative to conduct risk

assessments in housing projects.

Therefore, in the Department’s view, it

is illogical to impose new certification

requirements for evaluation activities

conducted in public and Indian

housing. Furthermore, the legislative

history for Title X indicates that

Congress did not intend for the new

procedures set out under Title X to

disrupt already ongoing public and

Indian housing lead-based paint

activities. Since the Department has not

applied certification requirements to

evaluation activities conducted by HAs,

additional descriptive material

concerning soil and dust testing has

been added to subpart B of part 37.

Further, HUD did not extend the

certification requirement to dust testing

conducted by HAs for the Section 8

tenant-based rental assistance program.

However, a risk assessment, conducted

in response to an identified EBL child,

must be conducted by a certified risk

assessor in accordance with 24 CFR part

37. HUD requests public comment on

the issue of whether certification

requirements for evaluation activities

should be applied to HAs.

VI. Definitions

In order to implement Section 1012

and Section 1013 of Title X, certain

terms need to be defined. To avoid

redundancy, definitions used

throughout both parts 36 and 37 are

included in subpart A of part 36. Terms

that are only used in a particular

subpart are defined in that subpart.
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29177

Where possible, HUD has drawn

definitions directly from Section 1004 of

Title X. In cases where the statute either

failed to define terms or where the

definition was inadequate, the

Department has drawn definitions from

the HUD Guidelines, existing HUD or

EPA regulations (as well as EPA

proposed regulations promulgated

pursuant to Title X), the National

Institute of Building Sciences (‘‘NIBS’’)

Lead-Based Paint Operations and

Maintenance Work Practices Manual,

and from definitions compiled and set

forth by the American Society for

Testing and Materials (ASTM) in a

document entitled ‘‘Standard

Terminology Relating to Abatement of

Hazards from Lead-Based Paint in

Buildings and Related Structures’’. HUD

will accept comments on all definitions

not taken directly from the statute.

VII. General Requirements

A. Part 36

1. Cross Cutting Issues

The requirements described below

apply, in varying degrees, to HUD

programs, as well as to some programs

of other Federal agencies, covered under

Part 36.

(a) Pamphlet. Section 1012 of Title X

amends the Lead-Based Paint Act to add

new subparagraph 42 U.S.C.

4822(a)(1)(A), which requires the

provision of a lead-based paint hazard

information pamphlet (‘‘lead hazard

information pamphlet’’) to all

purchasers and tenants of housing

receiving Federal assistance. The lead

hazard information pamphlet must be

the one developed by EPA pursuant to

Section 406 of TSCA (added pursuant to

Section 1021 of Title X).

The lead hazard information

pamphlet mandated by Section 406 of

TSCA contains certain information,

such as the health risks associated with

exposure to lead, the presence of lead in

residential property, approved and

recommended methods of evaluation

and reduction of lead-based paint

hazards, how to obtain a list of certified

evaluation and reduction contractors,

and an informational statement that

State and local governments may

impose additional lead-based paint

requirements.

Section 1018 of Title X also contains

a lead hazard information pamphlet

requirement. Under Section 1018, all

sellers and landlords of virtually all

pre–1978 target housing are required to

provide purchasers and tenants with the

same lead hazard information pamphlet

prior to sale or lease. Since Section 1018

of Title X separately requires all new

purchasers and new tenants of target

housing, including federally owned

residential property and housing

receiving Federal assistance, to receive

the lead hazard information pamphlet,

the Department reads ‘‘purchasers and

tenants’’ in new subparagraph 42 U.S.C.

4822(a)(1)(A) to cover ‘‘all existing

owner-occupants and tenants that were

residing in a residential dwelling unit

covered by this proposed rule prior to

the effective date of the regulation

implementing Section 1018 of Title X,’’

since these owner-occupants and

tenants would not have received the

pamphlet upon initial occupancy. The

proposed rule avoids duplicating the

requirements set out in Section 1018 by

not addressing situations in which the

Department, another Federal agency, or

a recipient or subrecipient of Federal

housing assistance already has a duty as

a seller or lessor to provide the

pamphlet to new purchasers or tenants.

That requirement will be set forth in 24

CFR Part 35, Subpart H.

(b) Notice. New subparagraph 42

U.S.C. 4822(a)(1)(F) of the Lead-Based

Paint Act requires the provision of

notice to occupants describing the

nature and scope of any risk assessment,

paint inspection, or reduction activities

undertaken. The Department has

interpreted this new provision to

require the following: (1) Within 15

calendar days of receiving a risk

assessment or paint inspection report or

both, a written notice must be provided

to tenants containing a summary of the

nature, scope and results of the

evaluation and a contact for more

information or access to the actual

reports; and (2) within 15 calendar days

of completing hazard reduction

activities, a notice must be provided to

tenants of the actual hazard reduction

activities conducted that contains a

summary of the nature, scope and

results of the hazard reduction

activities, a contact for more

information, and information on any

remaining lead-based paint on a surfaceby-surface basis. This notice shall be

updated, based on any reevaluation of

the dwelling unit or if additional leadbased paint hazard reduction work is

conducted. The notices must be posted

in a centrally located easily accessible

common area or distributed to each

occupied dwelling unit, must be of a

size and type that are easily read, must

be made available in an accessible

format for persons with disabilities, to

the extent practicable, and if possible

must be provided in the tenant’s

primary language.

The language of 42 U.S.C.

4822(a)(1)(F) does not specifically

require that separate notices be

provided to tenants, initially after an

evaluation has been conducted, and

again after hazard reduction activities

have been undertaken. However, in the

Department’s view, withholding

information on the results of an

evaluation until after hazard reduction

activities have been performed and the

lead-based paint hazard resolved, poses

a serious risk to tenants. The sooner

tenants are provided with this

information, the better they can protect

their children and themselves.

The notification requirements of 42

U.S.C. 4822(a)(1)(F) also do not specify

the manner in which the notices must

be distributed. The proposed rule

provides the option of ‘‘posting the

notices in a centrally located, easily

accessible common area, or distributing

it to each occupied dwelling unit.’’ In

general, the Department believes that

matters of notice format and distribution

are best determined by the property

owner or other recipient of Federal

housing assistance. The Department

requests comment on the content,

format and distribution of the notices.

(c) Paint Repair. HUD’s current leadbased paint regulations often require

visual inspection and ‘‘treatment of

defective paint surfaces.’’ That

treatment usually consists of scraping

deteriorated paint and in some cases

repainting. Paint repair under this

proposed rule involves similar visual

evaluation and treatment for

deteriorated paint surfaces (when the

deteriorated paint surface exceeds a de

minimis size), but additional safeguards

are added. Unless a paint inspection or

risk assessment has indicated the

absence of lead-based paint, a

deteriorated paint surface must be

assumed to contain lead. Therefore,

when paint repair is conducted, the

proposed regulation requires various

protections to ensure that the paint is

repaired in a manner that does not cause

exposure to lead-based paint. The

requirements include: (1) The use of

protective coverings on the floor or

ground; (2) occupant protections that

entail restricted access to a worksite

until after all paint repair and cleanup

have been completed; (3) use of wet

methods and other work practices to

control leaded dust; (4) surface

preparation and cleaning before

repainting; and (5) cleanup of the

worksite. These additional provisions

will help to ensure that lead-based paint

hazards are reduced without

unintended negative human health or

environmental consequences.

The paint repair requirements in this

proposed rule often apply where

residential properties receive a

minimum amount of housing assistance

from HUD, and the relationship between
29178 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

HUD and the recipient of HUD

assistance is not continuous. The

subparts of part 36 concerning HUD’s

single family and multifamily insured

programs require only paint repair, as

well as the subpart concerning HUDowned properties without sufficient

appropriations to carry out the

requirements of Section 1013 of Title X.

Paint repair is also required by CPD

non-rehabilitation programs and the

Department’s tenant-based rental

assistance programs, though these

programs have an additional

requirement of dust testing for

residential properties built before 1950.

In addition, HUD has extended the paint

repair requirements to residential

properties that receive less than $5,000

in HUD funds for rehabilitation, because

these rehabilitation activities are limited

and the paint disturbance is minimal.

Rather than requiring interim controls

or abatement activities for this category

of rehabilitation, the Department has

chosen a ‘‘do no harm’’ policy that

requires paint repair and cleanup of the

surfaces to be disturbed by

rehabilitation.

(d) EBLs. The use of children with

elevated blood lead levels (EBLs) as a

trigger to initiate evaluation or

reduction of lead-based paint hazards

does not exist in any of the new

requirements under Title X. Rather,

Congress makes clear that the

Department is to focus on preventing

the poisoning of children, rather than

reacting to children with EBLs (See

Section 566(a)(1), Housing and

Community Development Act of 1987

(‘‘HCD Act of 1987’’) (Pub. L. 100–242,

enacted February 5, 1988); p. 243,

Conference Report for the HCD Act of

1987 (Report 100–426, November 6,

1987); and Title X, Senate Report 102–

332). While the Department’s primary

focus in this rule is on prevention, HUD

feels a special duty to children who

have already been poisoned by leadbased paint. HUD cannot ignore the

possible connection between a child’s

EBL and the condition of the dwelling

unit where the child lives.

Therefore, in each subpart of Part 36

in which HUD maintains a continuing

relationship with the recipients of

Federal housing assistance, or where an

EBL child resides in residential property

owned by the Federal government,

additional requirements are included to

evaluate and reduce lead-based paint

hazards when an EBL child is

identified. Often, the EBL requirements

for a particular program are an

acceleration of the lead-based paint

hazard evaluation and reduction

requirements for that program. In some

instances, such as in the case of tenantbased rental assistance, the EBL

response may be more stringent than the

proposed requirements for that program.

In response to the United States

General Accounting Office report

entitled ‘‘Children in Section 8 TenantBased Housing are not Adequately

Protected’’ (GAO/RCED–94–137, dated

May 13, 1994), HUD has also added

language to the proposed rule requiring

an HA or other individual or

organization (e.g. grantee or

participating jurisdiction) administering

a Section 8 or CPD-funded tenant-based

rental assistance program, to the extent

practicable, to attempt to obtain the

names and addresses of EBL children

from local public health agencies on an

annual basis. They would then match

this information with the names and

addresses of families receiving tenantbased rental assistance. The intent of

this requirement is not for casemanagement of an EBL child, but to

ensure that families with young

children that receive Section 8 tenantbased rental assistance are obtaining

housing free of lead-based paint

hazards. At the same time, the Centers

for Disease Control and Prevention

(‘‘CDC’’) is urging local public health

agencies to provide EBL-related

information to HAs. While the

Department understands the value of

sharing EBL information, we would like

to receive public comment concerning

two issues: (1) Does this requirement

impose an undue administrative burden

on the individual or organization

administering the tenant-based rental

assistance program? (2) Does this

requirement adversely impact the

privacy rights of families receiving

tenant-based rental assistance?

(e) Other Required Practices.

Depending on the type of activity

conducted and the degree of Federal

involvement, the parties that are

required to perform lead-based paint

hazard evaluation and reduction

activities must also perform certain

protective activities such as occupant

protection, worksite preparation,

cleanup, clearance, monitoring, and

control of new hazards. With respect to

paint repair, specific protective

activities are included in subpart D of

Part 37. Further, the parties that are

required to perform lead-based paint

hazard evaluation and reduction

activities may be subject to Department

of Labor worker protection requirements

set out at 29 CFR 1926.62, and EPA

waste disposal requirements set out at

40 CFR 260–270. These requirements

are not described in Part 37.

2. Subpart A—General Requirements

Subpart A sets out general

requirements for all federally owned

residential property and housing

receiving Federal assistance. This

subpart includes a provision concerning

the scope of part 36, as well as general

exemptions from coverage under part

36. These exemptions include (1)

residential property constructed on or

after January 1, 1978; (2) single room

occupancy (SRO) dwelling units; (3)

residential property designated

exclusively for the elderly or persons

with disabilities, unless a child who is

less than six resides or is expected to

reside (the Department interprets the

phrase, ‘‘a child who is less than six

* * * is expected to reside,’’ to include

any pregnant woman residing in a

dwelling unit constructed before 1978

that is covered under this subpart); (4)

residential property undergoing

emergency repairs in response to a

natural disaster; and, (5) residential

property required to undergo visual

evaluation, paint repair and cleanup for

which documentation is provided that a

paint inspection has been completed in

accordance with part 37 and indicates

the absence of lead-based paint on all

surfaces. The subpart sets out a general

provision for parties required to

undertake paint inspection or risk

assessment, whereby they may choose

to assume the presence of lead-based

paint or lead-based paint hazards or

both and to conduct hazard reduction

activities. There is also a provision

allowing for a reasonable delay for

evaluation, paint repair, hazard

reduction or abatement activities on

exterior painted surfaces due to

unsuitable weather conditions.

Subpart A also includes provisions

concerning the following: a prohibition

against the use of paint containing more

than 0.06 percent by weight of lead in

federally owned residential property

and housing receiving Federal

assistance; prohibited methods of paint

removal; compliance with Federal laws

and authorities; compliance with State

and local laws, ordinances, codes or

regulations governing lead-based paint;

a statement that Part 36 is intended to

set out the Department’s minimum

requirements for notification, evaluation

and reduction of lead-based paint

hazards and that these requirements do

not preclude the recipient of Federal

assistance from conducting more

rigorous activities; Secretarial waivers;

and the consequences of noncompliance

with the requirements of parts 36 and

37. Terms which are used throughout

parts 36 and 37 are defined in this

subpart.
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3. Subpart B—State Procedures

This subpart allows States, Indian

tribes and insular areas that are

recipients of Federal housing assistance

or that are administering a Federal

housing assistance program established

by the Secretary, to develop their own

alternative lead-based paint procedures

to implement Federal requirements for

evaluating and reducing lead-based

paint and lead-based paint hazards in

the following programs: (1)

Rehabilitation and (2) Community

Planning and Development (CPD) nonrehabilitation. HUD requirements for

these programs are set out in subparts L

and M of part 36 and in the relevant

subparts of part 37. Specifically, subpart

B identifies the minimum HUD

requirements for each of these programs,

but permits States, Indian tribes and

insular areas to determine how best to

meet these requirements. For instance,

Title X requires abatement of lead-based

paint hazards in the course of

rehabilitation projects receiving more

than $25,000 per unit in Federal funds.

Under subpart B, an eligible State,

Indian tribe or insular area is permitted

to establish its own abatement

procedures, as long as the clearance

standards set out in subpart B are met.

This subpart is intended to provide

States, Indian tribes and insular areas

with latitude in developing lead-based

paint hazard reduction measures that

are as protective as Federal

requirements, but which may be better

suited to the specific economic and

technological needs of that unit of

government.

In order to qualify under this subpart,

a State shall have in place a certification

program for individuals and firms

engaged in lead-based paint activities

which has been approved by EPA

pursuant to Sections 402 and 404 of

TSCA. A State shall also have in place

alternative evaluation and hazard

reduction procedures that have been

approved by the Secretary prior to

implementation of the procedures.

Further HUD approval is required if the

State procedures are substantially

modified at any time after

implementation. A unit of general local

government located in a State that has

HUD-approved alternative lead-based

paint procedures may also adopt these

procedures or choose to follow the

applicable provisions of parts 36 and 37.

In developing its own lead-based

paint procedures, a State shall adhere to

general requirements set out in subpart

B concerning the lead-based paint

hazard information pamphlet, notice of

risk assessment, paint inspection, paint

repair and hazard reduction activities,

prohibited practices and occupant

protection. Specific minimum

requirements for each program covered

under subpart B and clearance

standards for dust and soil tests

established by HUD are also set out.

These requirements and clearance

standards must be incorporated into a

State’s alternative procedures. In

preparing this subpart, the Department

received input concerning the

possibility of alternative evaluation and

reduction procedures for States during

meetings with HUD clients (discussed

in Paragraph IV C above). HUD requests

additional comments concerning this

subpart, from State officials in

particular, and from the general public.

4. Subpart C—Disposition of Residential

Property Owned by a Federal Agency

other than HUD

This subpart establishes minimum

lead-based paint requirements for

residential property built before 1978

that is owned and to be sold by a

Federal agency other than HUD, and is

consequently subject to the

requirements of Section 1013 of Title X.

The subpart basically restates the

requirements set out in Section 1013,

with minimal elaboration. The

Department believes that the details of

how another Federal agency should

carry out the requirements of Section

1013 are best determined by the affected

agency. At a minimum, for residential

property constructed prior to 1960, the

Federal agency shall conduct a paint

inspection, risk assessment and

abatement of all lead-based paint

hazards. Section 1013 does not

specifically address when the abatement

of hazards must take place and, in

HUD’s view, abatement may be made a

condition of sale with sufficient funds

escrowed when a sale is to a nonoccupant purchaser.

For residential property constructed

after 1959 and before 1978, the Federal

agency shall conduct a paint inspection

and risk assessment, and the results

shall be provided to purchasers as

specified under Section 1018 of Title X.

Title X gives the Secretary authority to

waive the requirements for residential

property constructed after 1959 and

before 1978 in which a federally or

privately funded risk assessment

performed by a certified risk assessor

shows an absence of lead-based paint

hazards, or that a paint inspection,

performed by a certified paint inspector,

shows an absence of lead-based paint.

(Although the strict language of Section

1013 states ‘‘federally-funded’’ risk

assessment or paint inspection, the

Department has extended the waiver to

privately funded risk assessments or

paint inspections, so long as they are

performed by a certified risk assessor or

paint inspector.) In addition, the

Secretary may waive the requirements

for residential property constructed after

1959 and before 1978 if a clearance test

conducted by a certified risk assessor

shows an absence of lead-based paint

hazards. If abatement of lead-based

paint hazards is performed, additional

protective measures must be taken

under the general heading of ‘‘other

required practices.’’ Those practices

were discussed in Section VII.A.1(d) of

the Preamble above, and are further

described in Section VII.B. of the

Preamble below.

In the absence of appropriations

sufficient to cover the costs of these

lead-based paint requirements, the

requirements shall not apply. As

discussed in Section V.A. of the

Preamble, the Department expects a

Federal agency to determine whether to

establish alternative lead-based paint

requirements for its agency if sufficient

funds are not appropriated to carry out

the requirements of this subpart.

5. Subpart D—Project-Based Assistance

Provided by a Federal Agency Other

Than HUD

This subpart sets out minimum

requirements, consistent with Section

1012, for Federal agencies other than

HUD that have housing programs and

provide more than $5,000 (per project)

of project-based assistance. For the

reasons described in Section VII.A.4.

above, the subpart basically restates the

requirements set out in Section 1012.

Each tenant residing in a dwelling

unit prior to the effective date of the

regulation implementing Section 1018

of Title X shall receive a lead hazard

information pamphlet. Each owner shall

provide notices to the tenants of risk

assessment and hazard reduction

activities conducted in the dwelling

unit. Each owner shall also complete a

risk assessment in accordance with a

schedule determined by the Federal

agency, and shall conduct hazard

reduction to reduce lead-based paint

hazards identified in the risk

assessment. In the case of an EBL child

residing in a dwelling unit, the owner

shall immediately conduct risk

assessment and hazard reduction in that

unit. The owner shall also comply with

the other required practices set forth in

this subpart.

It should be noted that the

Department is concerned that if interim

controls were required under this

subpart in accordance with the

minimum procedure specified in Title

X, owners would not have had the

option of conducting abatement
29180 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

activities if they were recommended in

the risk assessment report and receiving

a rent adjustment if needed. As a

consequence, under this subpart both

interim controls and abatement are

acceptable responses to lead-based paint

hazards.

6. Subpart E—Single Family Insured

Property

This subpart sets out the requirements

for the Department’s single family

insured property programs.

Manufactured homes and property

improvement loan programs under Title

I of the National Housing Act are not

covered under this regulation, as neither

program is the subject of ‘‘an

application for mortgage insurance.’’

Applications for mortgage insurance in

connection with a refinancing

transaction are excluded from coverage

if an appraisal is not required under the

applicable procedures established by

HUD. For those mortgage insurance

programs that are covered, the extent of

Federal involvement is limited and,

consequently, the requirements under

Title X are also limited.

For a covered refinancing transaction,

each occupant residing in a dwelling

unit prior to the effective date of the

regulation implementing Section 1018

of Title X, shall receive the lead hazard

information pamphlet. If an initial

application for mortgage insurance is

made, the purchaser would receive the

lead hazard information pamphlet

under the requirements for sale

transactions in Section 1018 of Title X.

For single family property that

receives HUD mortgage insurance,

before the mortgage is endorsed for

insurance, the appraiser shall conduct a

visual evaluation of painted surfaces to

identify deteriorated paint. The

appraiser need not be a certified paint

inspector or risk assessor because the

purpose of the visual evaluation is only

to determine the presence of

deteriorated paint and visual evaluation

does not identify the content of lead in

paint. Deteriorated paint surfaces must

be repaired and cleanup conducted.

With limited exceptions, the

commitment or other approval

document must contain the requirement

that all deteriorated paint surfaces are to

be repaired and cleanup conducted

before the mortgage is endorsed for

insurance. An escrow fund may be

established to conduct paint repair and

cleanup after endorsement of the

mortgage under specific conditions. As

stated above, due to the limited

relationship between the purchaser and

the Federal government, HUD deemed it

impracticable to include requirements

for an EBL child.

If documentation is provided to the

appraiser that a limited paint inspection

of specific deteriorated paint surfaces

has been completed in accordance with

part 37 and indicated the absence of

lead-based paint on the particular

surfaces, the requirements of this

subpart would not apply with respect to

those surfaces. Many of the

requirements in subpart E are similar to

the current lead-based paint

requirements for single family insurance

programs, except that proper paint

repair and cleanup procedures for

deteriorated paint are now specified in

part 37.

7. Subparts F and G—Disposition of

HUD-Owned Single Family Property

(With and Without Sufficient

Appropriations)

These subparts set out requirements

for the disposition (i.e. sale) of HUDowned single family property. The

requirements of subpart F would apply

in the event the Secretary determines

that there are sufficient appropriations

to cover the costs of evaluation and

reduction of lead-based paint hazards as

set out in Section 1013 of Title X. The

requirements of subpart G would apply

in the event the Secretary determines

that there are not sufficient

appropriations to cover the costs of

evaluation and reduction of lead-based

paint hazards as set out in Section 1013

of Title X. See the discussion in Section

V A. of the Preamble above.

Under subpart F, for single family

property constructed prior to 1960, HUD

shall conduct a paint inspection and

risk assessment, and abate identified

lead-based paint hazards before the

closing of the sale of the property.

Abatement may be made a condition of

sale to a non-owner occupant purchaser,

with sufficient funds escrowed. A

residential property is exempt from the

requirements of this subpart if extensive

damage requires major rehabilitation or

demolition.

For residential property constructed

after 1959 and before 1978, HUD shall

conduct a paint inspection and risk

assessment before the closing of the sale

of the property. Results of the paint

inspection and risk assessment would

be provided to purchasers in accordance

with the disclosure requirements of

Section 1018. Title X gives the Secretary

authority to waive the paint inspection

and risk assessment requirements if a

federally or privately funded risk

assessment, performed by a certified

risk assessor, shows an absence of leadbased paint hazards; or that a federally

or privately funded paint inspection,

performed by a certified paint inspector,

shows an absence of lead-based paint. In

addition, the Secretary may waive the

requirements for residential property

constructed after 1959 and before 1978

if a clearance test conducted by a

certified risk assessor shows an absence

of lead-based paint hazards. The

Department shall also comply with the

other required practices set forth in

subpart F.

Under subpart G, before the closing of

the sale of a residential property, HUD

shall conduct a visual evaluation of all

paint surfaces to identify deteriorated

paint. The Department shall repair

deteriorated paint surfaces and perform

cleanup of the work area in accordance

with Part 37, before the closing of the

sale of the property. If the Department

retains ownership of a residential

property for more than one year,

monitoring must be conducted in

accordance with subpart J of Part 37 and

paint repair and cleanup conducted if

necessary, unless a residential property

is leased during this period (in which

case HUD may make monitoring a

condition of the lease). In the case of a

sale to a non-occupant purchaser, paint

repair and cleanup may be made a

condition of sale, with sufficient funds

escrowed. HUD may be exempt from the

requirements of this subpart for a

specific deteriorated paint surface if a

limited paint inspection has been

completed and shows an absence of

lead-based paint on the specific surface.

A residential property is also exempt

from the requirements of this subpart if

extensive damage requires major

rehabilitation or demolition. In

addition, the Department may be

exempt from the repainting

requirements described in this subpart if

weather conditions make repainting

infeasible or if the property is scheduled

for major rehabilitation or demolition.

Risk assessments are not specifically

required for federally owned residential

properties under Section 1013. In fact,

Section 1013 contains language

requiring inspections for lead-based

paint and lead-based paint hazards.

However, Title X itself defines

‘‘inspection’’ as an investigation for

lead-based paint on a surface-by-surface

basis, and defines a ‘‘risk assessment’’ as

an investigation for lead-based paint

hazards, which include lead in dust,

paint and soil. Since Section 1013

requires actions to be taken to treat leadbased paint hazards, the Department

interprets Section 1013 to also require

risk assessments of federally owned

residential properties in subpart F.

Neither subpart F nor G requires

specific action regarding an EBL child.

Less than 1 percent of the single family

property is occupied when HUD

acquires ownership, and, in most cases,
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29181

HUD-owned single family property is

vacant within three months of the

transfer of ownership to HUD. Further,

HUD-owned single family properties are

generally sold within six months of

acquisition. Because of the limited

occupancy and relatively high turnover

of HUD-owned single family property,

the Department thought it impracticable

to impose EBL requirements. Existing

EBL requirements for single family

property owned by the Department have

proven to be impractical and difficult to

implement.

8. Subpart H—Multifamily Insured

Property

This subpart sets out the requirements

for the Department’s multifamily

insured property programs. As with the

single family insured property

programs, applications for mortgage

insurance in connection with a

refinancing transaction are excluded

from coverage if an appraisal is not

required under the applicable

procedures established by HUD. Again,

because the extent of Federal

involvement is limited in multifamily

insured property programs, the

requirements under Title X are also

limited.

For a covered refinancing transaction,

each tenant that was residing in a

dwelling unit prior to the effective date

of the regulation implementing Section

1018 of Title X shall receive the lead

hazard information pamphlet. As with

the single family insured property

program, a new purchaser applying for

mortgage insurance would receive the

lead hazard information pamphlet

under the requirements of Section 1018.

Before the issuance of the firm

commitment, the Department’s or the

sponsor’s architect shall conduct a

visual evaluation of painted surfaces to

identify deteriorated paint. The

architect need not be a certified paint

inspector or risk assessor because the

purpose of the visual evaluation is only

to determine the presence of

deteriorated paint and the visual

evaluation does not identify the content

of lead in paint. Deteriorated paint

surfaces must be repaired and cleanup

of the work area conducted. As stated

above, due to the limited relationship

between the purchaser and the Federal

government, HUD deemed it

impracticable to include requirements

for an EBL child. In cases where

multifamily mortgage insurance is

combined with another HUD program

(i.e. project-based assistance), the EBL

requirements for that program would

apply.

If documentation is provided that a

limited paint inspection of specific

deteriorated paint surfaces has been

completed in accordance with part 37

and indicates the absence of lead-based

paint on a specific surface, the

requirements of this subpart would not

apply with respect to that surface. Many

of the requirements in subpart H are

similar to the current lead-based paint

requirements for multifamily insurance

programs, except that proper paint

repair and cleanup procedures for

deteriorated paint are now specified in

part 37.

9. Subpart I—Project-Based Assistance

This subpart sets out the requirements

for the Department’s project-based

rental assistance programs. In this

program area, the Department’s

involvement is ongoing and tied to the

residential structure itself;

consequently, the lead-based paint

hazard evaluation and reduction

requirements in Section 1012 are more

expansive. Although Title X only

requires the Secretary to establish leadbased paint procedures for residential

property receiving more than $5,000 in

project-based assistance, Subpart I

includes additional minimal lead-based

paint procedures (i.e. the procedures for

tenant-based rental assistance) for

multifamily property receiving less than

$5,000 in project-based assistance from

HUD. The Department also applies these

minimum lead-based paint procedures

to single family properties receiving

Section 8 Moderate Rehabilitation or

Project-Based Certificate assistance from

HUD. As stated above, the Department

wanted to extend some limited leadbased paint protections to properties

receiving minimal project-based

assistance and also wanted to relieve

single family owners with limited

financial resources from being required

to comply with the extensive lead-based

paint requirements for project-based

assistance.

Section 1012 of Title X amends the

Lead-Based Paint Act to add

subparagraph 42 U.S.C. 4822(a)(1)(B),

which requires, at a minimum, risk

assessments and interim controls in

accordance with a schedule determined

by the Secretary. Senate Report 102–

332, page 117, states that under Title X,

‘‘Risk assessments would be performed

in all housing receiving project-based

Federal assistance in order to determine

the level of risk and notify the residents

of existing hazards.’’ The Department

has decided that the term ‘‘projectbased’’ should be given its traditional

meaning—housing assistance payment

programs where the funding is tied to

the residential property and not to the

tenant (‘‘tenant-based’’ housing

assistance payments). Further, the

requirement for risk assessment only

makes sense when it is applied to

traditionally ‘‘project-based’’ housing

assistance payment programs, where

HUD maintains an ongoing relationship

with the owner and is able to require a

phase-in of risk assessment

requirements.

The statute, at 42 U.S.C. 4822(a)(1)(B),

sets out a schedule in which risk

assessments and interim controls must

be performed, i.e. pre-1960 dwelling

units prior to January 1, 1996; 25

percent of 1960–1978 dwelling units by

January 1, 1998; not less than 50 percent

of 1960–1978 dwelling units by January

1, 2000; and the remainder by January

1, 2002. The Department does not

anticipate issuing a final lead-based

paint rule in time to meet the January

1, 1996 deadline. Therefore, the

Department has delayed the risk

assessment schedule, but maintained

the same performance intervals (based

on the construction date of the

residential property) as set out in the

statute: residential property constructed

before 1960—(proposed to be 2 years

after the effective date of this rule);

residential property constructed after

1959 and before 1965—by (proposed to

be 4 years after the effective date of this

rule); residential property constructed

after 1964 and before 1971—by

(proposed to be 6 years after the

effective date of this rule); and

residential property constructed after

1970 and before 1978—by (proposed to

be 8 years after the effective date of this

rule). As stated above, the Department

has revised the risk assessment schedule

to provide adequate time for education

and training in order to implement the

new technical standards, requirements

and procedures set forth in this

proposed rule (See Effective Date and

Qualifications for Conducting LeadBased Paint Hazard Evaluation and

Reduction Activities). The proposed

rule also allows the Secretary to develop

an alternative schedule, if necessary.

This provision was included to provide

the Department with flexibility in

working with HUD clients whose

housing assistance payment (HAP)

contracts are due to expire close to the

required date for completing risk

assessments. The Department invites

comments on the risk assessment

schedule for housing programs receiving

project-based assistance. Specifically,

HUD requests comments on how to

address the risk assessment

requirements of Title X in residential

property where the HAP contracts are

due to expire within the next few years.

Under this subpart, each tenant

residing in a dwelling unit prior to the

effective date of the regulation
29182 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

implementing Section 1018 of Title X

shall receive a lead hazard information

pamphlet. Each owner shall provide

notices of evaluation, paint repair and

hazard reduction activities to tenants.

Each owner shall complete a risk

assessment prior to execution of the

HAP contract. If a risk assessment report

identifies lead-based paint hazards, the

owner is required to develop a hazard

reduction plan (‘‘reduction’’ is defined

as measures to reduce or eliminate leadbased paint hazards including interim

controls or abatement) proposing hazard

reduction activities consistent with the

recommendations of the risk assessment

report, and a schedule for completing

hazard reduction activities. The hazard

reduction plan will supplement the

owner’s application for rent increase

and shall be submitted to HUD and a

copy must be provided to any Contract

Administrator or HA in conjunction

with the next rent increase request, but

no later than 120 calendar days after

completion of the risk assessment. HUD

will review each plan submitted by an

owner and may recommend alternative

reduction activities if the activities

proposed are too costly. Before

approving a hazard reduction plan or

recommending alternative activities, the

HUD official reviewing the plan shall

also conduct a limited environmental

review in accordance with 24 CFR part

50. A copy of the Department’s

determinations must be transmitted to

any Contract Administrator or HA. If no

rent increase is necessary to implement

the plan, the owner shall certify to HUD

that the contents of the plan are

consistent with Part 37; in this instance,

the owner does not have to submit the

actual plan to HUD. However,

certification must be submitted to the

Department and a copy must be

provided to any Contract Administrator

or HA no later than 120 calendar days

after completion of the risk assessment.

It should be noted that the

Department is concerned that if interim

controls are required under this subpart

in accordance with the minimum

procedure specified in Title X, owners

will not have the option of conducting

abatement activities if they were

recommended in the risk assessment

report and receiving a rent adjustment if

needed. As a consequence, under this

subpart, both interim controls and

abatement are acceptable responses to

lead-based paint hazards.

In the event risk assessment and

hazard reduction are not completed

prior to execution of the HAP contract,

a risk assessment must be completed

and a hazard reduction plan submitted

during the housing assistance payment

period. In the latter case, each risk

assessment must be completed

according to a schedule which places a

priority on older dwelling units that are

more likely to have lead-based paint.

HUD welcomes comments concerning

the timing of the implementation of

hazard reduction for lead-based paint

hazards identified in the risk

assessment.

In the case of an EBL residing in a

dwelling unit, the owner shall

immediately conduct risk assessment

and hazard reduction in the dwelling

unit, rather than adhere to the

established schedule. The owner shall

also report the name and address of any

known EBL child to the appropriate

State or local health agency. When

conducting hazard reduction, the owner

shall also comply with the other

required practices set forth in subpart I.

10. Subparts J and K—Disposition of

HUD-Owned and Mortgagee-inPossession Multifamily Property (With

and Without Sufficient Appropriations)

These subparts set out requirements

for the disposition (i.e. sale) of HUDowned multifamily property. The

requirements of subpart J would apply

in the event the Secretary determines

that there are sufficient appropriations

to cover the costs of evaluation and

reduction of lead-based paint hazards as

set out in Section 1013 of Title X. The

requirements of subpart K would apply

in the event the Secretary determines

that there are not sufficient

appropriations to cover the costs of

evaluation and reduction of lead-based

paint hazards as set out in Section 1013

of Title X. See the discussion in Section

V.A. of the Preamble above.

Under subpart J, for multifamily

property constructed prior to 1960, HUD

shall conduct a paint inspection and

risk assessment before publicly

advertising the property for sale.

Abatement of all identified lead-based

paint hazards must be completed no

later than conveyance of the title or

before a foreclosure sale required by the

Secretary. If the disposition program

provides for repairs to be performed by

the purchaser, abatement may be

included in the required repairs. A

residential property is exempt from the

requirements of this subpart if extensive

damage requires major rehabilitation or

demolition.

For residential property constructed

after 1959 and before 1978, HUD shall

conduct a paint inspection and risk

assessment before publicly advertising

the property for sale. Results of the

paint inspection and risk assessment

would be provided to purchasers in

accordance with the disclosure

requirements of Section 1018. Title X

gives the Secretary authority to waive

the paint inspection and risk assessment

requirements if a federally or privately

funded risk assessment, performed by a

certified risk assessor, shows an absence

of lead-based paint hazards; or that a

federally or privately funded paint

inspection, performed by a certified

paint inspector, shows an absence of

lead-based paint. In addition, the

Secretary may waive the requirements

for residential property constructed after

1959 and before 1978 if a clearance test

conducted by a certified risk assessor

shows an absence of lead-based paint

hazards. The Department shall also

comply with the other required

practices set forth in subpart J.

Under subpart K, before publicly

advertising a residential property for

sale, HUD shall conduct a visual

evaluation of all paint surfaces to

identify deteriorated paint. The

Department shall repair deteriorated

paint surfaces and perform cleanup of

the work area in accordance with Part

37, no later than conveyance of the title

by HUD or before a foreclosure sale

caused by the Secretary. If the

disposition program provides for repairs

to be performed by the purchaser, paint

repair and cleanup may be included in

the required repairs. If the Department

retains ownership of a residential

property for more than one year,

monitoring must be conducted in

accordance with subpart J of Part 37 and

paint repair and cleanup conducted if

necessary. HUD may be exempt from the

requirements to repair a specific

deteriorated paint surface if a limited

paint inspection has been completed

and shows an absence of lead-based

paint on the specific surface. A

residential property is exempt from the

requirements of this subpart if extensive

damage requires major rehabilitation or

demolition.

Again, risk assessments are not

specifically required for federally

owned residential properties under

Section 1013. In fact, Section 1013

contains language requiring inspections

for lead-based paint and lead-based

paint hazards. However, Title X itself

defines ‘‘inspection’’ as an investigation

for lead-based paint on a surface-bysurface basis, and defines a ‘‘risk

assessment’’ as an investigation for leadbased paint hazards, which include lead

in dust, paint and soil. Since Section

1013 requires actions to be taken to treat

lead-based paint hazards, the

Department interprets Section 1013 to

also require risk assessments of

federally owned residential properties

in subpart J.

Unlike the requirements for single

family property in subparts F and G,
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subparts J and K require specific actions

regarding an EBL child. As stated above,

with respect to single family property,

less than 1 percent of the single family

property is occupied when HUD

acquires ownership and all HUD-owned

single family property must be vacant

within three months of the transfer of

ownership to HUD. This is not the case

for multifamily property. Therefore, if a

child with an EBL resides in a HUDowned multifamily dwelling unit, the

Department shall immediately conduct

risk assessment and interim controls in

that unit. The Department shall also

report the presence of an EBL child, and

any risk assessment or interim controls

conducted, to the appropriate State or

local health agency.

11. Subpart L—Rehabilitation

This subpart sets out the requirements

for the Department’s programs which

provide assistance for rehabilitation.

The majority of this assistance is

provided through the Department’s CPD

programs. Other rehabilitation

assistance is provided under the

Flexible Subsidy-Capital Improvement

Loan Program (CILP) for multifamily

property. This subpart does not include

other HUD programs that may be tied to

rehabilitation activities, but do not

provide direct funding of such

activities. These include the

Department’s insurance programs and

the Section 8 Moderate Rehabilitation

program, which are covered in other

subparts of the proposed rule. Public

housing modernization programs are not

included under this subpart.

Since rehabilitation work typically

disturbs a painted surface and,

therefore, the result of Federal

involvement may be to create or

exacerbate a lead-based paint hazard

condition, the requirements under Title

X for rehabilitation or renovation

assistance are the most stringent. Title X

requirements for rehabilitation vary

based on whether federal rehabilitation

assistance is above or below $25,000.

The subpart discusses the manner in

which rehabilitation costs are calculated

for different programs. For purposes of

determining whether the rehabilitation

cost is under or over $25,000, the

Department will look at the hard costs

of rehabilitation and not at soft costs,

such as administrative fees. Lead-based

paint hazard evaluation and cleanup

activities will not be considered part of

the rehabilitation costs. The Department

recognizes that it may be difficult in

practice to distinguish between

rehabilitation and lead-based paint

hazard evaluation and reduction

activities and welcomes comments on

this issue.

There are three general exemptions in

this subpart. Rehabilitation that does

not disturb a painted surface is exempt

from the requirements of this subpart for

the reasons discussed below. Also, if a

grantee, participating jurisdiction or

CILP recipient certifies to the

Department that a dwelling unit

undergoing federally funded

rehabilitation has been previously

abated of all lead-based paint, the

requirements of this subpart do not

apply. A dwelling unit may also be

exempt from the requirement to conduct

a limited paint inspection if the grantee,

participating jurisdiction or CILP

recipient certifies that a paint inspection

has been completed and indicates the

absence of lead-based paint.

Although many of the requirements

under this subpart refer to the grantee or

participating jurisdiction, as is the case

with many CPD programs, the grantee or

participating jurisdiction may require

virtually all of these functions to be

performed by a subrecipient or other

entity administering the financial

assistance. A subrecipient can be a

public or private nonprofit agency,

authority or organization, or a for-profit

entity, selected by the grantee or

participating jurisdiction to administer

all or a portion of the financial

assistance. An owner or developer

receiving Federal rehabilitation

assistance for a residential property is

not considered a subrecipient for the

purposes of carrying out that project.

All tenants or owner-occupants shall

be provided with the lead hazard

information pamphlet by the grantee,

participating jurisdiction or CILP

recipient. In all cases where evaluation,

paint repair and hazard reduction

activities are undertaken, each grantee,

participating jurisdiction or CILP

recipient shall post or distribute a notice

to tenants of the results of the

evaluation. The grantee, participating

jurisdiction or CILP recipient shall also

post or distribute a notice of the results

of the hazard reduction activities.

For housing receiving an average of

less than $5,000 per unit in Federal

funds for rehabilitation, HUD is

requiring the grantee, participating

jurisdiction or CILP recipient to conduct

a visual evaluation of all painted

surfaces to identify deteriorated paint.

Before occupancy of a vacant dwelling

unit or, where a dwelling unit is

occupied, before rehabilitation work

begins, the subrecipient or other entity

(defined to include an owner) shall

repair deteriorated paint surfaces and

perform cleanup in accordance with

subpart D of part 37. HUD has created

this special category for housing

receiving less than $5,000 in Federal

funds for rehabilitation, for which the

evaluation and hazard reduction

requirements are more lenient, because

the rehabilitation activity is limited and

the paint disturbance minimal. Rather

than exclude this category from

coverage under the proposed rule, the

Department chose a ‘‘do no harm’’

policy when minimally disturbing a

painted surface. This category of

housing receiving an average of less

than $5,000 per unit in Federal funds

for rehabilitation, however, should not

be confused with the category of

housing established in the statute

receiving less than $5,000 in projectbased assistance.

For housing receiving an average of

$25,000 or less per unit (but greater than

$5,000) in Federal funds for

rehabilitation, the grantee, participating

jurisdiction or CILP recipient is required

to conduct a paint inspection of surfaces

to be disturbed in the course of the

rehabilitation. A paint inspection must

be completed before occupancy of a

vacant dwelling unit or, where a

dwelling unit is occupied, before

rehabilitation work begins, in

accordance with subpart C of part 37. In

addition, each grantee, participating

jurisdiction or CILP recipient shall

complete a risk assessment in a sample

of the federally assisted dwelling units

(including common areas and exteriors)

in accordance with subpart B of part 37.

A risk assessment must be completed

before occupancy of a vacant dwelling

unit or, where a dwelling unit is

occupied, before rehabilitation work

begins, and may be done in conjunction

with the paint inspection. Hazard

reduction activities are required to

address any lead-based paint hazards

found.

For housing receiving an average of

more than $25,000 per unit in Federal

funds for rehabilitation, the grantee,

participating jurisdiction or CILP

recipient is required to conduct a paint

inspection of surfaces to be disturbed in

the course of the rehabilitation. A paint

inspection must be completed before

occupancy of a vacant dwelling unit or,

where a dwelling unit is occupied,

before rehabilitation work begins, in

accordance with subpart C of part 37. In

addition, each grantee, participating

jurisdiction or CILP recipient shall also

complete a risk assessment in a sample

of the federally assisted dwelling units

(including common areas and exteriors)

in accordance with subpart B of part 37.

A risk assessment must be completed

before occupancy of a vacant dwelling

unit or, where a dwelling unit is

occupied, before rehabilitation work

begins, and may be done in conjunction

with the paint inspection. Abatement of
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lead-based paint hazards identified on a

surface to be disturbed by rehabilitation

is required. Each grantee, participating

jurisdiction or CILP recipient shall

conduct hazard reduction activities if

lead-based paint hazards are identified

in the risk assessment on a surface not

to be disturbed by rehabilitation.

Because the relationship between the

Department and the grantee,

participating jurisdiction or CILP

recipient is not ongoing, HUD deemed

it impracticable to include requirements

for an EBL child. The grantee,

participating jurisdiction or CILP

recipient, however, shall comply with

the other required practices set forth in

subpart L.

The Department includes risk

assessments as a requirement for

rehabilitation programs although risk

assessments are not clearly required for

rehabilitation activities under Title X.

The statute does, however, in new

subparagraphs (a)(1)(D) and (E), require

reduction or abatement of lead-based

paint hazards. Grantees, participating

jurisdictions or CILP recipients

receiving rehabilitation funds, therefore,

are required to perform a risk

assessment to determine where leadbased paint hazards exist, so they can

then reduce or abate all such hazards.

New subparagraph (a)(1)(C) requires

inspection for the presence of leadbased paint prior to federally funded

renovation or rehabilitation likely to

disturb painted surfaces. HUD has

interpreted this language to require

inspection of the painted surfaces to be

disturbed in the course of federally

funded rehabilitation (the term

‘‘rehabilitation’’ includes ‘‘renovation’’).

HUD’s interpretation does not require

inspection of all painted surfaces in the

dwelling unit to be rehabilitated. HUD

has attempted to focus paint inspection

and abatement efforts on those surfaces

where the greatest hazard may be

created. This focus seems to be

consistent with legislative intent. The

Senate Report, cited supra, at page 117,

specifically states that ‘‘prior to

beginning work likely to disturb painted

surfaces, owners would be required to

have an paint inspection performed to

determine the lead content of the

paint.’’

After the inspection of the painted

surfaces to be disturbed is performed,

for rehabilitation receiving an average of

$25,000 or less (but more than $5,000)

per unit, the grantee, participating

jurisdiction or CILP recipient is

responsible for reduction of any leadbased paint hazards identified in the

risk assessment in the entire dwelling

unit. HUD has extended the hazard

reduction requirement to the entire

dwelling unit to correspond with the

areas covered in the risk assessment. For

rehabilitation receiving an average of

$25,000 or more per unit, grantee,

participant jurisdiction or CILP

recipient is responsible for abating leadbased paint hazards on surfaces to be

disturbed by the rehabilitation, and

reducing lead-based paint hazards

identified in the risk assessment in the

rest of the dwelling unit.

12. Subpart M—Community Planning

and Development (CPD) NonRehabilitation Programs

This subpart sets out the requirements

for certain CPD programs which provide

Federal funding for acquisition, leasing,

tenant-based rental assistance, operating

or support services. With the exception

of tenant-based rental assistance, since

the Federal funding for these programs

is often provided by the HUD grantees

or participating jurisdictions to the

property owner or developer in a single

instance and the relationship is not

ongoing, the requirements under Title X

are limited. For the CPD tenant-based

rental assistance program, the

requirements of subpart O of Part 36

apply, except for the provision of the

lead hazard information pamphlet.

Instead, the lead hazard information

pamphlet must be distributed in

accordance with the requirements set

out in subpart M (§ 36.256). Although

all the requirements under this subpart

refer to the grantee or participating

jurisdiction, the grantee or participating

jurisdiction may require virtually all of

these functions to be performed by the

subrecipient administering the financial

assistance. A subrecipient can be a

public or private nonprofit agency,

authority or organization, or a for-profit

entity, selected by the grantee or

participating jurisdiction to administer

all or a portion of the financial

assistance. An owner or developer of an

assisted residential property is not

considered a subrecipient for the

purposes of carrying out that project.

All tenants or owner-occupants shall

be provided with the lead hazard

information pamphlet by the grantee or

participating jurisdiction. Before

providing financial assistance to an

owner, each grantee or participating

jurisdiction shall conduct a visual

evaluation of all painted surfaces to

identify deteriorated paint. For housing

constructed before 1950, each grantee or

participating jurisdiction shall also

conduct dust sampling to determine the

presence of lead-contaminated dust.

Before occupancy of a vacant dwelling

unit or, where a dwelling unit is

occupied, immediately after receipt of

financial assistance, the grantee or

participating jurisdiction shall repair

any deteriorated paint surfaces and

perform cleanup of the worksite in

accordance with part 37. For housing

constructed before 1950, if dust

sampling identifies lead-contaminated

dust, the grantee or participating

jurisdiction shall conduct cleanup of the

horizontal surfaces in the room,

dwelling unit or common areas where

lead-contaminated dust is located. The

grantee or participating jurisdiction is

exempt from the requirement to repair

a specific deteriorated paint surface if a

limited paint inspection has been

completed in accordance with part 37

and indicates an absence of lead-based

paint on the specific surface.

As stated above, because the

relationship between the HUD grantee

or participating jurisdiction and the

property owner or developer is not

ongoing, HUD deemed it impracticable

to include requirements for an EBL

child, except in the case of the CPD

tenant-based rental assistance programs.

13. Subpart N—Public and Indian

Housing Programs

Section 1012 of Title X does not

specifically add new requirements to

public or Indian housing. The Senate

Report, cited infra, at page 118, states

that Congress did not intend the

changes to the Lead-Based Paint Act

introduced by Title X to pose a barrier

to ongoing efforts by PIH to conduct risk

assessments, paint inspections and

abatement activities. According to the

Report, ‘‘the changes made by Title X to

the public housing provision of the

LPPPA are intended merely to conform

the terminology of Title X’s definition of

terms.’’ Nevertheless, in order to

consolidate all of the lead-based paint

requirements for HUD in a single place,

the Department is including subpart N

for public and Indian housing in this

rulemaking. This subpart implements

the requirements set out in 42 U.S.C.

4822(d)(1) and (3) prior to Title X;

where necessary, however, the

Department has modified these

requirements in order to be consistent

with the intent of Title X. Such

modifications are noted below in the

subpart discussion.

If a tenant has resided in a public or

Indian housing unit prior to the

effective date of the regulation

implementing Section 1018, the HA

shall provide the tenant with the new

lead hazard information pamphlet. In all

cases where lead-based paint or leadbased paint hazard evaluation or

reduction activities are undertaken, the

HA shall post or distribute a notice to

tenants of the results of the evaluation.

The HA shall also post or distribute a
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29185

notice of the results of the hazard

reduction or abatement activities. The

notification requirement is intended to

respond, in part, to the

recommendations made in the 1993

General Accounting Office (GAO) report

entitled, Lead-Based Paint Poisoning:

Children in Public Housing Are Not

Adequately Protected (GAO/RCED–93–

138).

The Lead-Based Paint Act requires

HAs to complete paint inspections by

December 6, 1994. The proposed rule

adds a supplemental requirement to the

regulations for HAs that have not

completed paint inspections: any paint

inspection not completed by the

effective date of this rule must then be

immediately conducted in accordance

with part 37. If a paint inspection was

completed prior to the effective date of

this regulation, the Department strongly

encourages HAs to conduct quality

control activities prescribed by PIH to

ensure that paint inspections were

conducted properly. PIH set out these

quality control procedures in Notice PIH

95–8, issued February 9, 1995.

If a paint inspection has indicated the

presence of lead-based paint, each HA

shall complete a visual evaluation, dust

and soil test, in accordance with part 37,

in the housing project before January 1,

1999. If a paint inspection has indicated

that no lead-based paint is present, the

HA shall complete a soil test (with

limited exceptions) in the housing

project. A housing project shall be

exempt from these requirements if the

HA can certify that it has been abated

of all lead-based paint and lead-based

paint hazards; or that a paint inspection,

and a risk assessment conducted in

accordance with part 37, was completed

prior to January 1, 1999 and identifies

the absence of any lead-based paint and

lead-based paint hazards in the housing

project.

As discussed in Section V.C. of the

Preamble above, HAs conducting dust

and soil testing for public and Indian

housing are not required by this

proposed rule to be certified in

accordance with the new EPA

requirements for lead-based paint

activities. However, HAs were required

to complete paint inspections by

December 6, 1994 and many HAs have

already taken the initiative to conduct

risk assessments in housing projects;

consequently, it seems burdensome to

impose new certification requirements

for dust and soil testing conducted in

public and Indian housing. Since the

Department has not applied certification

requirements to dust and soil testing

conducted by HAs, the individual or

firm conducting these activities on

behalf of the HA shall be trained in lead

hazard evaluation and additional

descriptive material concerning soil and

dust testing has been added to subpart

B of part 37.

As stated in Section II.A. of the

Preamble above, most of HUD’s leadbased paint requirements will focus on

reducing lead-based paint hazards in

residential property, pursuant to Title X.

The notable exception to this policy

continues to be the required abatement

of all lead-based paint and lead-based

paint hazards in public and Indian

housing, as set forth in 42 U.S.C.

4822(d) (1) and (3).

Each HA shall abate all identified

lead-based paint and lead-based paint

hazards during the course of physical

improvements conducted under

modernization, or as soon as practical

after completing the evaluation

requirements set out in this subpart.

Each HA shall also conduct interim

controls to treat lead-based paint

hazards identified in dust and soil

testing prior to abatement of these

hazards; initial interim controls must be

conducted within 30 calendar days of

completing the evaluation requirements

set out in this subpart. Whenever hazard

reduction is conducted, the HA shall

comply with the other required

practices set forth in § 36.286 of this

subpart. A public or Indian housing

project shall be exempt from this

requirement if the HA can provide

documentation to the Department that

interim controls are already being

conducted in accordance with part 37.

To be consistent with the Title X

definition of a lead-based paint hazard,

the Department thought it necessary to

include the requirement for dust and

soil sampling. The Department

recognizes that many HAs have taken

the initiative to conduct risk

assessments in housing projects. The

Department does not intend to penalize

those HAs at the forefront of lead-based

paint hazard control, and provides

certain evaluation exemptions to

address this situation. Where a leadbased paint hazard is identified and is

not being addressed prior to a HA’s

planned abatement schedule, the

proposed rule requires the HA to

implement interim controls.

If an EBL child is identified in a

public or Indian housing project, the HA

shall complete a risk assessment of the

dwelling unit in accordance with part

37 within 15 calendar days of

notification of the EBL condition, and

shall conduct hazard reduction of

identified lead-based paint hazards in

accordance with part 37 within 15

calendar days of receipt of the risk

assessment report. The HA may relocate

the family to a post-1978 or previously

evaluated dwelling unit that was found

to be free of lead-based paint hazards.

Because many HAs have completed

paint inspection and abatement in their

housing projects, the Department has

determined that relocation to a dwelling

unit free of lead-based paint hazards is

a reasonable option to conducting risk

assessment and interim controls. In

addition, the HA shall report the name

and address of the EBL child to the State

or local health agency.

The requirements for conducting risk

assessment and hazard reduction

activities when an EBL child is

identified and reporting EBL

information to the State or local health

agency, and the requirement to notify

tenants whenever lead-based paint or a

lead-based paint hazard is identified,

are intended to address, in part, GAO’s

concerns about protecting children in

public housing from lead-based paint

poisoning (See Lead-Based Paint

Poisoning: Children in Public Housing

Are Not Adequately Protected, (GAO/

RCED–93–138), and Secretary Cisneros’

written reply to Senator John Glenn,

past-Chairman, Committee on

Government Affairs, United States

Senate, December 20, 1993).

14. Subpart O—Tenant-Based Rental

Assistance

This subpart sets out new lead-based

paint requirements for the Department’s

tenant-based rental assistance programs.

The Title X Task Force on Lead-Based

Paint Hazard Reduction and Financing

issued recommendations on reducing

lead-based paint hazards in the Section

8 housing stock. The Task Force’s June

1995 report, discussed in Section IV.B.

of the Preamble above, provided the

Department with a set of national

‘‘benchmark standards’’ to reduce leadbased paint hazards in private rental

property. To the extent practicable, the

proposed rule incorporates these

standards into the lead-based paint

requirements for tenant-based rental

assistance programs.

As stated in Section V.A., the

Department believes that Congress did

not intend for HUD to apply the new

minimum procedures for lead-based

paint hazard notification, evaluation

and reduction set out in Title X to

tenant-based rental assistance. However,

HUD does not believe that Congress

intended to abolish HUD’s current

procedures, which serve to protect, in a

minimal way, the recipients of this type

of housing assistance. In this proposed

rule, HUD continues to require tenantbased rental property to meet the

minimal standards for lead-based paint

found in the Department’s HQS. The

proposed rule slightly modifies these
29186 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

standards to incorporate the spirit of

Title X and its new lead-based paint

terminology, as well as incorporating

some of the recommendations of the

Title X Task Force.

The requirements set forth in subpart

O apply only to dwelling units in which

a family with a child under age six

resides. The scope of this subpart is

more narrow than the scope of other

program subparts, and deviates from

Title X’s directive to address lead-based

paint hazards in all federally owned

residential property or housing

receiving Federal assistance (with

limited exceptions for the elderly,

disabled and single room occupancy

dwelling units). The Department

thought it reasonable to continue to

restrict the lead-based paint

requirements for the tenant-based rental

assistance programs to dwelling units in

which a family with a child under age

six resides because of the program’s

ability to identify any changes in the

composition of an assisted family. In

addition, the HAs are able to monitor

the property owner’s compliance with

HQS through initial and periodic

dwelling unit inspections. These two

safeguards will help to ensure that an

HA will know whether a child under

age 6 resides in a dwelling unit. It

should be noted that an owner that

refuses to rent a dwelling unit to a

family with a child under the age of six

may be in violation of the provisions of

the Fair Housing Act prohibiting

discrimination on the basis of familial

status.

Because this subpart focuses on

dwelling units with young children who

are at greatest risk of lead poisoning, the

Department has added a requirement for

dust testing to the existing requirement

for visual evaluation in order to identify

potential lead-based paint hazards. This

additional protection applies to initial

inspections of rental property

constructed prior to 1950, where leadbased paint hazards are more prevalent.

If a tenant has resided in a dwelling

unit prior to the effective date of the

regulation implementing Section 1018,

the HA shall provide the tenant with a

lead hazard information pamphlet at the

next periodic dwelling unit inspection.

Prior to approval by the HA for a family

to lease a dwelling unit constructed

before 1950, an HQS inspector shall

conduct a visual evaluation of all

painted surfaces to identify deteriorated

paint and conduct dust sampling in

accordance with part 37. Since the

proposed rule does not require a

complete risk assessment, and the

Department recognizes the cost

constraints faced by HAs, the HQS

inspector need not be certified as a paint

inspector or risk assessor in accordance

with Section 402 of TSCA, in order to

conduct dust tests. Rather, this subpart

requires the HQS inspector to be trained

in lead-based paint hazard evaluation

that must include proper procedures for

dust sampling and additional

descriptive material concerning dust

testing has been added to subpart B of

part 37.

The owner shall repair deteriorated

paint surfaces before occupancy of a

vacant dwelling unit constructed before

1950, or where the pre-1950 dwelling

unit is occupied, within 30 days of

notification of the results of the visual

evaluation. If dust sampling identifies

lead-contaminated dust above the

applicable level, cleanup of the

horizontal surfaces in the room,

dwelling unit or common areas where

lead-contaminated dust is located must

be completed prior to occupancy. If dust

sampling does not indicate leadcontaminated dust, cleanup of the

worksite must be completed prior to

occupancy.

Prior to approval by the HA for a

family to lease a dwelling unit

constructed after 1949, an HQS

inspector shall conduct a visual

evaluation of all painted surfaces to

identify deteriorated paint. The owner

shall repair deteriorated paint surfaces

and perform cleanup of the worksite

prior to occupancy or, if the dwelling

unit is unoccupied, within 30 calendar

days of the results of the visual

evaluation.

If an EBL child is identified in a

dwelling unit receiving Federal

assistance under this subpart, the owner

shall complete a risk assessment of the

dwelling unit where the EBL child

resides within 15 calendar days of

notification, and conduct interim

controls to treat the identified leadbased paint hazards within 15 calendar

days of receiving the risk assessment

report. The HA shall also, to the extent

practicable, attempt to obtain the names

and addresses of EBL children from

local public health agencies on an

annual basis and match this information

with the names and addresses of

families receiving tenant-based rental

assistance. As discussed in VII.A.1.(c) of

the Preamble above, these additional

lead-based paint requirements imposed

on the tenant-based rental assistance

programs when an EBL child is

identified respond to concerns about

protecting children living in Section 8

tenant-based rental property from lead

poisoning (See the United States

General Accounting Office report

entitled ‘‘Children in Section 8 TenantBased Housing are not Adequately

Protected’’ (GAO/RCED–94–137, dated

May 13, 1994), and are consistent with

the recommendations of the Title X

Task Force.

The requirements of this subpart do

not apply for specific deteriorated paint

surfaces if the owner certifies that a

limited paint inspection was completed

with respect to the specific surfaces and

indicated an absence of lead-based paint

on those surfaces. An owner shall also

be exempt from the evaluation and

hazard reduction requirements of this

subpart if certification is provided to the

HA that the dwelling unit has been

abated of all lead-based paint hazards.

The Department considered several

options for addressing lead-based paint

hazards in the tenant-based rental

assistance program. The requirements

set forth in subpart O attempt to strike

a balance between the tradition of

limiting Federal requirements imposed

on the private housing stock associated

with tenant-based rental assistance

programs, and the recognition that as

HUD’s Reinvention shifts to tenantbased rental assistance instead of

subsidies to public housing agencies,

protections must continue to be

provided to HUD clients living in

private rental property (See Section III

of the Preamble above).

B. Part 37

The requirements set forth in part 37

are designed to ensure that lead-based

paint hazard evaluation and reduction

activities are performed safely and

effectively. They prescribe ‘‘how’’ these

activities are to be accomplished. In

writing part 37, the Department sought

to balance the competing objectives of

effectiveness and affordability by

including only the requirements needed

to achieve acceptable performance. The

Department also incorporated

performance-oriented requirements

wherever possible, thereby allowing

residential property owners to use the

most cost-effective methods for their

properties and to take advantage of costsaving improvements in technology as

they occur. The requirements included

in part 37 are based on the HUD

Guidelines, which contain standard

methods for effectively identifying and

controlling lead-based paint hazards,

given current knowledge and

technology.

1. Subpart A—General Requirements

Subpart A explains the purpose and

applicability of part 37, noting that

paint inspection, risk assessment and

abatement activities (including

clearance examinations) must be

conducted by paint inspectors, risk

assessors and abatement supervisors

and workers certified in accordance
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29187

with EPA regulations (40 CFR 745.226).

Part 37 provides interim requirements

for these activities when paint

inspectors, risk assessors and abatement

supervisors and workers are not

certified in accordance with EPA

regulations. Recognizing that the supply

of certified paint inspectors, risk

assessors and abatement supervisors

and workers may be inadequate at the

effective date of this rule, this subpart

also authorizes the Secretary to establish

temporary qualifications for these

individuals until such time as there is

a sufficient number of certified

personnel. In addition, Subpart A notes

that any lead-based paint hazard

evaluation and reduction activities that

are not included in 40 CFR 745.226 (e.g.

paint repair, interim controls) are to be

conducted in accordance with the

standards and methods set out at 24

CFR part 37. The Department requests

comment on the level of detail

necessary in 24 CFR part 37 to carry out

the lead-based paint hazard evaluation

and reduction requirements found at 24

CFR part 36.

Finally, Subpart A also includes a

reference to the HUD Guidelines for

more specific information, and a

requirement for the accreditation of

laboratories performing lead-based paint

analyses by the EPA National Lead

Laboratory Accreditation Program.

Definitions applicable to 24 CFR part 36

are also applicable to part 37.

2. Subpart B—Risk Assessment

A risk assessment, as prescribed in

subpart B, consists of a visual

assessment to determine the condition

of painted surfaces in the building and

the need for structural repairs; limited

environmental sampling of deteriorated

paint, dust, and soil; and a written

report that describes identified leadbased paint hazards and lists acceptable

abatement or interim control methods

for controlling these hazards. This

subpart specifies, in some detail,

elements of a visual assessment, the

conditions that constitute lead-based

paint hazards, and the requirements for

testing paint, dust, and soil to determine

whether such hazards are present. This

subpart is written prescriptively because

of the following reasons: (1) The risk

assessment requirements found in part

37 are intended to be HUD’s minimum

requirements for performing risk

assessments as required by 24 CFR part

36. The Department is concerned that

without the guidance of this subpart, a

risk assessor may include additional

testing protocols that would not

accurately reflect the Department’s

intent. In such a case, a HUD client may

misinterpret the risk assessor’s

recommendations as the Department’s

minimum requirements for risk

assessment. This could result in

significant increases in cost to the

Department and its clients; (2) the

concept of risk assessment is new; (3)

there does not exist at the time of this

writing a well established consensus

standard for risk assessments; (4) very

few risk assessors have been trained and

certified; and (5) housing authority

employees with some degree of training,

but not certified, will be performing

dust and soil sampling for public

housing and require more detailed

guidance. The Department requests

comments on these procedures

particularly interpreting dust sample

results to determine what surfaces

should be cleaned.

Subpart B requires that a risk

assessment be performed by risk

assessors certified under EPA

certification regulations. Recognizing

that the supply of certified risk assessors

may be inadequate at the effective date

of this proposed rule, this subpart

authorizes the Secretary to establish

temporary qualifications for risk

assessors until such time when State

programs can produce a sufficient

number of certified personnel.

This subpart incorporates EPA

guidance for lead in dust, paint, and

soil. At the time of this writing, EPA

had not yet published the health-based

standards mandated by Section 403 of

TSCA (added pursuant to Section 1021

of Title X) that will apply to lead in dust

(including dust in carpeted floors), paint

or soil. When the health-based

standards are published, HUD will

consider modifying the requirements set

out in 24 CFR parts 36 and 37,

accordingly.

Because risk assessors will need

guidance in evaluating surfaces with

wall-to-wall carpeting, HUD has

included in this proposed rule a dust

standard for carpeted floors equal to the

standard for hard surface floors. HUD

believes that a carpet dust standard that

parallels the threshold for hard floors

provides a reasonable level of

protection. HUD requests information

on levels of lead dust in carpets that

would be dangerous to young children,

the prevalence of lead dust in carpets in

the nation’s housing stock, and effective

and feasible methods of removing lead

dust from carpets.

Under this subpart, risk assessments

of multifamily properties must evaluate

the conditions in every dwelling unit,

except when five or more similar

dwelling units are present. Among

similar dwelling units, a targeted

sample of dwelling units may be used

as the basis for evaluating the nature

and extent of lead-based paint hazards

among all units. This subpart

establishes parameters that must be

satisfied when selecting a targeted

sample of dwelling units.

The HUD Guidelines permit the use of

a lead-based paint hazard screen in

properties that are in good physical

condition. This technique is a modified

risk assessment using limited paint

sampling and dust sampling of the

floors and window troughs. The

standards for passing a lead-based paint

hazard screen are more stringent than

those for passing a risk assessment. This

procedure was excluded from the

proposed rule because the results of

sampling dust in window troughs

would probably fail the standards set

out in part 37 in a large majority of

dwelling units. Window troughs are

essentially an exterior window surface

that is frequently in poor condition due

to weathering; troughs are subject to

continuous contamination and,

therefore, are difficult to clean to the

extent necessary in order to satisfy the

standards set out in part 37.

3. Subpart C—Paint Inspection

A paint inspection, as prescribed in

Subpart C, is a surface-by-surface

investigation of all similarly painted

surfaces in a dwelling unit, both interior

and exterior, to determine the presence

and location of lead-based paint. In

multifamily properties, the paint

inspection also includes an

investigation of surfaces in the common

areas of buildings.

This subpart specifies the minimum

requirements for selecting surfaces to

inspect in single family and multifamily

property and identifies acceptable

methods for testing the lead content of

the paint on these surfaces with portable

x-ray fluorescence (XRF) analyzers and,

if necessary, laboratory analysis of paint

samples. Paint inspections of

multifamily property of 21 or more

dwelling units may rely on the results

from a random sample of units selected

in accordance with the procedures

established by this subpart. This sample

is more extensive than that required in

current HUD regulations and provides a

95 percent confidence level.

The purpose of a paint inspection is

to identify the location of lead-based

paint in a dwelling unit or building, not

the presence of lead-based paint

hazards. Paint inspections, as required

by part 36, aid in planning abatement in

modernization of public and Indian

housing, and rehabilitation or

renovation work by identifying the

surfaces where precautions must be

taken during construction to avoid

creating lead-based paint hazards.
29188 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

The requirements for paint

inspection, like those for risk

assessment, are much more prescriptive

than existing regulations. This is so

because (1) correct paint inspection

procedures are essential to ensure

accurate results, and (2) new paint

inspection procedures have resulted

from recent research by EPA and HUD.

4. Subpart D—Paint Repair

Paint repair constitutes the minimum

treatment for deteriorated paint

surfaces. It requires only surface

preparation by acceptable methods,

surface cleaning, repainting, and a

modified cleanup of the immediate

worksite. This subpart exempts

treatment of deteriorated paint surfaces

below a de minimis level.

5. Subpart E—Interim Controls

Subpart E, like subpart B concerning

risk assessment, describes in

prescriptive terms the requirements for

performing effective interim control

treatments to reduce lead-based paint

hazards. Interim controls refer to a set

of hazard reduction measures designed

to achieve temporary control of

identified lead-based paint hazards. The

requirements are prescriptive because

the concept of interim controls is new,

and there is no established training or

certification program for interim control

workers. For this reason, the regulation

requires these workers to be supervised

by a certified abatement supervisor.

There are four basic types of interim

control treatments: paint stabilization,

friction and impact surface controls,

dust controls, and soil controls. In

addition to establishing requirements

for these treatments, this subpart

identifies methods that may not be used

as interim controls. The subpart also

specifies circumstances when interim

controls are not acceptable hazard

reduction methods. This subpart

exempts treatment of deteriorated paint

surfaces below a de minimis level.

Interim controls often have a lower

initial cost than abatement methods.

However, interim controls require

regular monitoring and reevaluation

because they are not permanent

treatments. The cost of monitoring

should be considered when deciding

whether to use interim controls or to

abate a lead-based paint hazard. For

some hazards, abatement methods will

be more cost-effective than interim

controls when the cost of monitoring is

considered.

6. Subpart F—Abatement

This subpart, which establishes the

requirements for abatement, is written

largely in performance terms (e.g.

permanently eliminate the lead-based

paint hazard) since abatement

procedures are well established, and a

significant number of qualified

abatement supervisors and workers

currently exists.

The regulation defines component

replacement, enclosure, removal, and

encapsulation as acceptable methods of

abatement. It also prohibits seven

methods of paint removal because they

can easily contaminate the environment

and/or are dangerous for workers to use.

One abatement method, encapsulation,

is prescribed in more detail, because

there are no performance standards for

encapsulants at this time.

There is no exclusion for deteriorated

paint surfaces below a de minimis level

from abatement requirements in subpart

F. The two types of HUD programs that

are most affected by the abatement

requirements set out in this subpart are

public and Indian housing projects and

rehabilitation assistance programs. HAs

are required under the Lead-Based Paint

Act to abate all lead-based paint and

lead-based paint hazards. For

rehabilitation programs providing more

than $25,000 in Federal rehabilitation

assistance, abatement must occur on all

lead-based paint surfaces to be

disturbed by the rehabilitation. As a

result, it is the Department’s view that

where abatement is required, an

exclusion for a de minimis level would

not be appropriate.

7. Subpart G—Occupant Protection and

Worksite Preparation

This subpart establishes minimum

requirements for protecting occupants of

dwelling units undergoing lead-based

paint hazard reduction activities from

exposure to lead-based paint hazards

while this work is being performed. It

also establishes a performance

requirement for preparing the hazard

reduction worksite to prevent the

uncontrolled release of leadcontaminated dust and debris beyond

this area.

Lead-based paint hazard reduction

activities frequently generate lead-based

paint hazards while work is underway.

Subpart G requires that the occupants of

a dwelling unit undergoing hazard

reduction not be permitted to enter the

worksite until hazard reduction

activities have been completed and the

area has passed a clearance examination

performed in accordance with subpart I.

It also requires that occupant belongings

be protected from contamination while

work is in progress.

If occupants cannot safely live in a

dwelling unit while lead-based paint

hazard reduction is being performed,

they must be temporarily relocated to a

suitable dwelling unit until work is

completed and the dwelling unit has

passed a clearance examination. This

subpart describes those circumstances

when tenants can safely remain in the

dwelling unit while hazard reduction is

being performed. HUD recognizes that

temporary relocation adds to the cost of

hazard reduction and can

inconvenience occupants. The

Department believes that the provisions

of this subpart require relocation only

when it is essential to the safety of the

occupants.

Protections are also needed to prevent

any hazards generated during hazard

reduction from spreading beyond the

worksite. The level of protection needed

to meet these requirements will vary

depending on the type and extent of

hazards to be treated, the methods of

treatment, and the characteristics of the

dwelling unit. HUD has not established

a detailed set of protective measures

that apply to all worksites because in

some cases such protections would

exceed those needed while in others,

the protections would be inadequate.

Instead, HUD is requiring that a

properly certified risk assessor,

abatement supervisor, or trained leadbased paint designer/planner determine

the specific protections that must be

used in a worksite to meet the

requirements of this subpart.

8. Subpart H—Cleanup

Subpart H describes required cleanup

activities following lead-based paint

hazard reduction activities. Cleanup is

the process of removing debris and dust.

The regulation specifies two types of

cleanup activities: daily cleanup, and

final cleanup. Daily cleanup is required

at the end of each work day after hazard

reduction activities. When cleaning

debris, workers must use practices that

minimize the generation of dust.

Cleaning the troughs of windows is

required in this process since they are

frequent dust traps and can be cleaned

along with the window sill. Troughs are

not, however, required to be tested in

the clearance examinations. Finally, the

containment area’s protective coverings

must be examined and any defects

repaired.

Final cleanup is performed after all

hazard reduction activities have been

completed. Final cleanup requirements

establish safe practices for the removal

of dust, debris and the protective

coverings of the containment area. If the

residential property is not required to

pass a clearance examination, final

cleanup may begin no sooner than one

hour after hazard reduction activities

have ceased.
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29189

The Department requests comments

on the level of detail and the necessity

of this subpart for the following reasons.

If the final performance requirement is

the safe reoccupancy of the residential

property after passing a clearance

examination, the need for cleanup

regulations may be questionable.

Although proper cleanup is a critical

factor in satisfying clearance standards,

the ultimate test is clearance which is

likely not to occur if cleanup is

neglected or incomplete. This is not

intended to eliminate the requirement

for modified cleanup in properties

which have undergone lead-based paint

hazard reduction work such as paint

repair, but do not require a clearance

examination.

9. Subpart I—Clearance

Subpart I establishes the minimum

requirements for performing clearance

examinations following lead-based paint

hazard reduction. Clearance consists of

a visual examination, dust testing and

soil testing. A visual examination is

done to ensure that all hazard reduction

work was properly completed and to

check for any remaining dust and

debris. Dust testing is also required to

confirm that no lead dust hazards

remain in the residential property. This

subpart establishes requirements for the

number and location of dust and soil

samples.

Clearance examinations may begin

one hour after completing final cleanup.

This is a significant change from

previous guidance which required a 24-

hour waiting period. The Department

has acted upon analysis that indicates

lead-contaminated dust settles much

faster than originally determined—most

of it within 1 hour.

Clearance examinations must be

performed in all dwelling units and

common areas in a multifamily property

with less than 21 units. In properties

with more than 21 dwelling units, a

random sample of units may be

examined if the dwelling units are

selected in accordance with the unit

sampling requirements established in

subpart C. The regulation requires that

components, rooms, or common areas

that fail clearance testing be re-cleaned

and retested until they pass.

10. Subpart J—Monitoring

Subpart J prescribes requirements for

monitoring of residential properties to

assure the effectiveness of the interim

controls required in subpart E or other

lead-based paint hazard reduction

activities. If a residential property has

no lead-based paint or has had all leadbased paint removed or permanently

controlled (excluding encapsulation),

monitoring is not required.

Monitoring consists of two types of

activities: visual surveys by the property

owner and a reevaluation by a risk

assessor. A visual survey examines

painted surfaces, lead-based paint

hazard reduction treatments, and

ground cover for signs of lead-based

paint hazards. Any identified hazards

must be promptly and safely corrected.

In most cases, visual surveys will be

performed annually.

A reevaluation is a modified risk

assessment that includes a visual

assessment of painted surfaces and leadbased paint hazard reduction treatments

in conjunction with limited dust and

soil sampling to determine if any

hazards have developed since the most

recent hazard reduction treatments were

performed. This subpart establishes the

minimum requirements for performing

visual assessments, as well as dust and

soil sampling. In multifamily properties

with five or more similar dwelling units,

a targeted sample of units selected in

accordance with the unit selection

requirements of subpart B, or a random

sample selected according to

requirements of subpart C, may be used

as the basis for reevaluating all such

units.

Reevaluations must be performed by a

certified risk assessor (40 CFR 745.226)

in accordance with the minimum

schedule requirements established by

this subpart. As part of each

reevaluation, the risk assessor must

prepare a report documenting the

presence or absence of lead-based paint

hazards, and acceptable control options

for new hazards.

C. Regulatory Assessment

HUD has prepared a Regulatory

Impact Analysis (RIA) that examines the

costs and benefits of the proposed

regulatory action in conjunction with

this proposed rule. The major findings

in the RIA are presented in this

summary, organized into four sections

appearing below: Cost-Benefit Analysis;

Sensitivity Analysis and Regulatory

Alternatives; Economic Impacts; and

Environmental Justice. The complete

document is available for inspection in

the Office of the Rules Docket Clerk,

Room 10276, 451 Seventh Street, SW,

Washington, DC.

1. Cost-Benefit Analysis

The analysis of net benefits in the RIA

reflects costs and benefits associated

with the first year of hazard evaluation

and reduction activities under the

proposed rule. These costs and benefits,

however, include the present value of

future costs and benefits associated with

first year hazard reduction activities.

For example, the costs associated with

first year activities include the present

value of future reevaluation costs.

Similarly, the benefits of first year

activities include the present value of

lifetime earnings benefits for children

living in or visiting the affected unit

during that first year, and for children

living in or visiting that unit during the

second and subsequent years after

hazard reduction activities.

The present value of lifetime earnings

benefits is particularly sensitive to

discount rate assumptions in the

analysis, because these benefits reflect

lifetime earnings many decades into the

future. The RIA presents estimated

benefits of increased lifetime earnings

using two different discount rates for

lifetime earnings—3 percent and 7

percent. For estimates of costs and all

other benefits, the RIA uses a 7 percent

rate.

Employing a 3 percent discount rate

of the lifetime earnings estimates, the

RIA concludes that benefits of first-year

activities are $1,538.2 million; costs are

only $458 million. Thus the estimated

net benefit is $1,080.2 million. If a 7

percent discount rate is used for lifetime

earnings benefits, the present value of

the benefits of the proposed rule

associated with first year activities is

estimated to be $497 million, and

estimated costs remain at $458 million.

The proposed rule would therefore

realize a net-benefit of only $39 million

using the 7 percent discount rate.

Benefits and costs of the proposed rule

using both discount rates are shown in

Tables 7A and 7B.

While the Office of Management and

Budget specifies 7 percent as the

appropriate discount rate for most

regulatory analyses, EPA’s analysis of

this issue (in the 1994 RIA for the

proposed regulations implementing

sections 402 and 404 of the Toxic

Substances Control Act) has concluded

that a 3 percent discount rate best

reflects the social rate of time preference

for annualized, non-capital costs and

benefits. OMB guidance recognizes that

a special social rate of time preference

is appropriate when conducting

intergenerational analysis. An

intergenerational discount rate is

applicable to the proposed rule because

the costs will be borne by adult

taxpayers, and lifetime earning benefits

will be realized by the children and

grandchildren of these adult taxpayers.

An intermediate approach, not

quantified in the RIA, could have used

a real discount rate based on the longterm borrowing costs of the Federal

government. The 7 percent rate used in

most regulatory analyses is intended to
29190 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

reflect OMB’s estimate of the

opportunity cost of capital, based on the

average real rates of return on private

investments. This rate is appropriate for

most regulatory analyses because most

regulations impose costs on the private

sector. The proposed rule, however,

imposes costs on federally assisted

housing. Most of these costs will be

funded directly or indirectly by Federal

expenditures. If these expenditures

increase the national debt, then the real

cost of that debt to future generations

will compound at the real long-term

Federal rate. The Internal Revenue

Service’s Applicable Federal Rate (AFR)

measures the nominal cost of

government borrowing over obligations

with different maturities, and the longterm AFR adjusted for the implicit price

deflator results in real AFRs of

approximately 4 to 5 percent for the past

6 years. Therefore, benefits could be

discounted at the same real AFR rate

(i.e., 4 to 5 percent).

By presenting results using both 3 and

7 percent, HUD is providing the

broadest view of costs and benefits.

Additional information on the

methodology and results of the costbenefit analysis is provided below.

Cost Estimation. The methodology

used to estimate annual costs for the

proposed rule is based on the following

formula:

Regulatory Cost=(unit cost)×(unit cost

frequency)×(number of affected

units)

The ‘‘unit cost’’ estimates reflect the

average estimated costs associated with

specific hazard evaluation and

reduction activities in a ‘‘typical’’ single

or multifamily housing unit affected by

the proposed rule. These unit cost

estimates are based on interviews with

lead-based paint hazard evaluation and

abatement contractors, state officials,

and other experts familiar with leadbased paint hazard evaluation and

reduction costs. These cost estimates are

also consistent with those presented in

HUD’s ‘‘Comprehensive and Workable

Plan for the Abatement of Lead-Based

Paint in Privately Owned Housing’’

(1990) and in the Lead-Based Paint

Hazard Reduction and Financing Task

Force report, ‘‘Putting the Pieces

Together: Controlling Lead Hazards in

the Nation’s Housing’’ (1995).

Table 1 presents estimated average

costs for lead-based paint hazard

evaluation and both full and

incremental cost estimates for hazard

reduction activities. Incremental paint

repair and abatement costs are those

additional costs associated with the rule

beyond the costs of non-lead-based

paint repair and rehabilitation work in

the absence of lead-based paint. Only

incremental costs are incurred under

rehabilitation programs, and full costs

under other programs are offset by the

estimated market values of routine paint

repair and rehabilitation work.

Relocation costs are not included in

this analysis, because HUD expects that

relocation of occupants will rarely be

required as a result of the proposed

regulations. Most interim controls and

small-scale abatements can be

conducted without relocation by

carefully containing dust to work areas

and keeping occupants out of work

areas. Relocation is usually only

necessary in cases of extensive

abatement of lead-based paint

throughout the living areas of a housing

unit. In the proposed regulations,

abatement of lead-based paint or leadbased paint hazards is required in only

two programmatic situations: public and

Indian housing, and substantial

rehabilitation projects receiving more

than $25,000 per unit in Federal funds.

This proposed rule, however, does not

initiate the full abatement requirement

in public and Indian housing; that

requirement has been in place since

1986. In the case of substantial

rehabilitation projects, it is unlikely that

such housing will be occupied, so

relocation will not be necessary. It is

possible that extensive interim controls

in occupied housing may necessitate

relocation; but HUD believes this will be

rare because, through the hazard control

plan provision, HUD has given property

owners receiving project-based

assistance the flexibility to schedule

such activity at the time of unit

turnover. It is possible that extensive

interim controls may sometimes be

needed in units occupied by children

with elevated blood-lead levels in

public and Indian housing or in tenantbased assistance programs. HUD has not

been able to estimate the frequency with

which this will occur, but is of the

opinion that it will be rare and that any

such relocation costs will not materially

affect the results of this cost-benefit

analysis.

‘‘Unit cost frequencies’’ reflect the

extent of required hazard evaluation

activities under the proposed rule and

the occurrence frequencies of different

lead-based paint hazards that trigger

hazard reduction requirements.

Occurrence frequency estimates in this

analysis generally reflect data from the

National Survey of Lead-Based Paint in

Housing completed in 1990 and are

presented in Table 2. Estimates are

provided for three construction-year

intervals: Pre-1940, 1940–1959, and

1960–1977.

The ‘‘number of affected units’’ is the

annual number of HUD-owned or

assisted units affected by the proposed

rule. Data gathered from each HUD

program office indicates that more than

1.6 million housing units are affected

Department-wide during the first year

after promulgation. The number of

affected units is shown in Table 3 by

program and construction period.

The estimated incremental cost of the

proposed rule during the first year of

hazard evaluation and reduction

activities is $458 million, or an average

of $283 per unit, if it is assumed there

are no appropriations to implement

section 1013 of the Act for HUD-owned

housing. The estimated incremental cost

with appropriations is $572 million, or

an average of $353 per unit. The

estimated incremental cost by program

is presented in Table 4.

TABLE 1.—ESTIMATED COSTS PER DWELLING UNIT FOR HAZARD EVALUATION AND REDUCTION ACTIVITIES

Unit cost activity

Cost per

single family

unit

Cost per

multifamily

unit

Hazard Evaluation:

Visual Evaluation ...................................................................................................................................................... $10 $5

Risk Assessment (RA) .............................................................................................................................................. 375 260

RA and PI ................................................................................................................................................................. 550 400

Paint Inspection (PI) ................................................................................................................................................. 400 300

2 composite dust tests .............................................................................................................................................. 70 70

Clearance .................................................................................................................................................................. 150 120

Reevaluation ............................................................................................................................................................. 271 217

Hazard Reduction:

Exterior paint repair .................................................................................................................................................. 1,000 100
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29191

TABLE 1.—ESTIMATED COSTS PER DWELLING UNIT FOR HAZARD EVALUATION AND REDUCTION ACTIVITIES—Continued

Unit cost activity

Cost per

single family

unit

Cost per

multifamily

unit

Interior paint repair .................................................................................................................................................... 500 500

Incremental exterior paint repair ............................................................................................................................... 100 10

Incremental interior paint repair ................................................................................................................................ 20 20

Incremental interior paint repair with rehab .............................................................................................................. 60 40

Window work ............................................................................................................................................................. 300 200

Other friction/impact work ......................................................................................................................................... 300 200

Soil cover .................................................................................................................................................................. 200 10

Exterior abatement .................................................................................................................................................... 5,000 250

Interior abatement ..................................................................................................................................................... 3,000 2,000

Incremental exterior abatement ................................................................................................................................ 1,000 50

Incremental interior abatement ................................................................................................................................. 600 400

Area cleanup ............................................................................................................................................................. 75 75

Unit cleanup .............................................................................................................................................................. 450 300

TABLE 2.—ESTIMATED OCCURRENCE FREQUENCIES FOR COSTS AND BENEFITS

Unit cost occurrence trigger

(Percentage of all units): Freq.

Pre-1940 1940–1959 1960–1977

Multifamily Sample Testing:

Risk assessment/RA and PI ............................................................................................................. 16 16 16

Paint inspection only ......................................................................................................................... 23 23 23

Interior LBP Disturbed by Rehab:

Single family interior <5K .................................................................................................................. 45 22 11

Other Interior disturbed by rehab ...................................................................................................... 80 40 20

Deteriorated Paint:

Interior paint ...................................................................................................................................... 41 24 9

Single family exterior deteriorated paint ........................................................................................... 42 28 12

Multifamily exterior deteriorated paint ............................................................................................... 21 14 6

Dust and Soil Hazards:

Window sill dust >500 ug/sq. ft ......................................................................................................... 54 14 13

Floor dust >100 ug/sq. ft ................................................................................................................... 36 17 4

Bare soil >2000 ug/g ......................................................................................................................... 27 4 0

Deteriorated LBP:

Interior LBP ....................................................................................................................................... 16 6 3

Single family det. exterior LBP ......................................................................................................... 28 12 6

Multifamily det. exterior LBP ............................................................................................................. 14 6 3

Single family deteriorated interior plus exterior LBP ........................................................................ 44 18 9

Multifamily deteriorated interior plus exterior LBP ............................................................................ 30 12 6

Combined and Partial Hazards:

Sill and/or floor dust .......................................................................................................................... 61 26 16

Interior deteriorated LBP without lead floor dust .............................................................................. 3 3 2

Interior deteriorated paint without lead floor dust ............................................................................. 14 13 5

Sill and/or floor dust and/or interior deteriorated LBP ...................................................................... 4 29 18

Paint repair area dust ....................................................................................................................... 8 3 1

TABLE 3.—HUD-OWNED OR -ASSISTED HOUSING UNITS

Subparts

Number of units

Total

Pre-1940 1940–1959 1960–1977

Single Family Insurance ................................................................................................... 5,000 6,300 361,600 372,900

HUD-Owned Single Family Housing ................................................................................ 22,528 12,672 20,240 55,440

Multifamily Insured ............................................................................................................ 1,875 1,875 11,250 15,000

Multifamily Housing w/ Project-Based Assistance ........................................................... 25,030 25,030 74,484 124,544

HUD-Owned Multifamily Housing ..................................................................................... 991 3,364 18,592 22,947

Housing Rehab:

HOME ........................................................................................................................ 2,090 2,578 243 ....................

HOPE III .................................................................................................................... 129 156 15 ....................

CDBG ........................................................................................................................ 6,082 9,193 884 ....................

Total Single Family Rehab <5K ....................................................................................... 8,301 11,927 1,142 21,370

HOME ........................................................................................................................ 8,832 10,680 1,026 ....................

HOPE III .................................................................................................................... 542 655 63 ....................

CDBG ........................................................................................................................ 24,326 27,579 2,652 ....................

Total Single Family Rehab 5K–25K ................................................................................. 33,700 38,914 3,741 76,355

HOME ........................................................................................................................ 3,012 3,642 350 ....................

HOPE III .................................................................................................................... 189 229 22 ....................
29192 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

TABLE 3.—HUD-OWNED OR -ASSISTED HOUSING UNITS—Continued

Subparts

Number of units

Total

Pre-1940 1940–1959 1960–1977

CDBG ........................................................................................................................ 7,602 9,193 884 ....................

Total Single Family Rehab >25K ..................................................................................... 10,803 13,064 1,256 25,123

HOME ........................................................................................................................ 2,960 2,247 274 ....................

Multifamily .................................................................................................................. 20 20 360 ....................

CDBG ........................................................................................................................ 4,100 4,983 2,459 ....................

Total Multifamily Rehab <5K ............................................................................................ 7,080 7,250 3,093 17,423

HOME ........................................................................................................................ 12,507 9,497 1,158 ....................

Multifamily .................................................................................................................. 80 80 1,440 ....................

CDBG ........................................................................................................................ 12,300 14,950 7,376 ....................

Total Multifamily Rehab 5K–25K ...................................................................................... 24,887 24,527 9,974 59,388

HOME ........................................................................................................................ 4,265 3,238 395 ....................

Multifamily .................................................................................................................. 10 10 180 ....................

CDBG ........................................................................................................................ 4,101 4,983 2,459 ....................

Total Multifamily Rehab >25K .......................................................................................... 8,376 8,231 3,034 19,641

Total Single Family Acquisition Under CPD Program ..................................................... 1,190 1,585 2,318 ....................

Total Multifamily Acquisition Under CPD Program .......................................................... 1,998 1,514 2,591 ....................

Pre-1950 Single Family Acquisition Under CPD Program ............................................... 1,190 793 0 1,983

Pre-1950 Multifamily Acquisition Under CPD Program ................................................... 1,998 757 0 2,755

Post-1949 Single Family Acquisition Under CPD Program ............................................. 0 793 2,318 3,111

Post-1949 Multifamily Acquisition Under CPD Program .................................................. 0 757 2,591 3,348

Public Housing .................................................................................................................. 13,330 208,839 222,169 444,338

Indian Housing .................................................................................................................. 259 4,050 4,308 8,617

Tenant-Based Rental Assistance:

HOME ........................................................................................................................ 566 538 1,075 ....................

Section 8 ................................................................................................................... 109,862 87,889 145,017 ....................

Total ................................................................................................................... 110,428 88,427 146,093 ....................

Pre-1950 ........................................................................................................................... 110,428 44,214 0 154,641

Post-1949 ......................................................................................................................... 0 44,214 146,093 190,306

Total Number of Units ........................................................................................ 275,775 457,569 885,885 1,619,228

TABLE 4.—TOTAL COST BY PROGRAM

Subparts

Program cost

Pre-1940 1940–1959 1960–1977 Subpart total

Single Family Insured Housing ................................................................................ 3,328,750 2,696,400 65,720,800 71,745,950

HUD-Owned Single Family Housing w/Appropriations ............................................ 94,262,784 27,247,968 11,132,000 132,642,752

HUD-Owned Single Family Housing w/o Appropriations ......................................... 14,772,736 5,296,896 3,476,220 23,545,852

Multifamily Insured Housing ..................................................................................... 490,781 294,375 705,938 1,491,094

Multifamily Housing w/ Project-Based Assistance ................................................... 12,076,224 6,186,665 11,993,394 30,256,283

HUD-Owned Multifamily Housing w/Appropriations ................................................. 1,563,699 2,686,490 2,472,736 6,722,925

HUD-Owned Multifamily Housing w/o Appropriations .............................................. 254,439 511,328 1,073,688 1,839,455

Single Family Rehab <5K ........................................................................................ 2,278,625 3,273,962 313,479 5,866,065

Single Family Rehab 5K–25K .................................................................................. 30,515,350 27,628,940 1,964,025 60,108,315

Single Family Rehab >25K ....................................................................................... 11,013,659 11,431,000 779,976 23,224,635

Multifamily Rehab <5K ............................................................................................. 1,940,628 1,982,150 843,152 4,765,930

Multifamily Rehab 5K–25K ....................................................................................... 10,176,294 5,685,359 1,367,435 17,229,088

Multifamily Rehab >25K ........................................................................................... 5,234,162 2,813,356 610,137 8,657,656

Pre-1950 Single Family CPD Program .................................................................... 1,212,610 466,386 0 1,678,996

Pre-1950 Multifamily CPD Program ......................................................................... 1,022,976 214,231 0 1,237,207

Post-1949 Single Family CPD Program ................................................................... 0 331,265 398,117 729,382

Post-1949 Multifamily CPD Program ....................................................................... 0 115,064 149,630 264,694

Public Housing .......................................................................................................... 5,971,840 44,419,949 28,115,487 78,507,276

Indian Housing .......................................................................................................... 257,350 1,932,053 1,261,382 3,450,785

Pre-1950 Single Family Tenant-Based Assistance .................................................. 45,010,344 10,407,861 0 55,418,205

Pre-1950 Multifamily Tenant-Based Assistance ...................................................... 33,923,399 7,507,455 0 41,430,854

Post-1949 Single Family Tenant-Based Assistance ................................................ 0 7,392,500 10,036,576 17,429,075

Post-1949 Multifamily Tenant-Based Assistance ..................................................... 0 4,032,273 5,062,116 9,094,388

Total Without Appropriations ......................................................................... 179,480,167 144,619,466 133,871,551 457,971,184

Total With Appropriations .............................................................................. 260,279,474 168,745,700 142,926,379 571,951,554

Average Cost per Unit Without Appropriations ........................................................ 651 316 151 283

Average Cost per Unit With Appropriations ............................................................. 944 369 161 353
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29193

Benefits Identification and Estimation

Methodology. The methodology used to

estimate annual benefits for the

proposed rule is based on the following

formula:

Regulatory Benefits=(unit benefit)×(unit

benefit frequency)×(number of

affected units).

This analysis is based on extensive

academic and government research

analyzing the risks of lead-poisoning

and the benefits of lead-based paint

hazard reduction. The ‘‘unit benefit’’

estimates are the average benefits per

dwelling unit achieved by conducting

hazard reduction activities. ‘‘Unit

benefit frequencies’’ are determined by

the occurrence frequencies of lead-based

paint hazards (shown in Table 2),

because benefits are realized by hazard

reduction activities. The ‘‘number of

affected units’’ is the annual number of

HUD-owned or assisted units affected

by the proposed rule (shown in Table 3).

The benefits of preventing elevated

blood lead levels in young children

have been monetized in published

literature by Joel Schwartz of Harvard’s

School of Public Health in ‘‘The Societal

Benefits of Reducing Lead Exposure’’

(1993), the Center for Disease Control

(CDC) in ‘‘Strategic Plan for the

Elimination of Childhood Lead

Poisoning’’ (1991), and most recently in

EPA’s draft ‘‘Title IV, Sections 402 and

404 Regulatory Impact Analysis’’ (1994).

Each of these sources identified the

following types of monetized benefits

that are directly applicable to the

analysis of the benefits from the

proposed rule:

—Reductions in medical costs,

including physician visits, laboratory

testing, chelation therapy,

neuropsychological testing, and

follow-up testing;

—Reductions in special education costs;

and

—Increased lifetime earnings associated

with higher cognitive abilities, such

as increased intelligence and better

academic performance in schools.

Monetized health benefits are divided

into two categories: (1) Benefits

achieved only for children with blood

lead levels prevented from rising above

25 ug/dL; and (2) benefits achieved

regardless of blood lead levels. The

Schwartz, CDC, and EPA analyses

included reduction in medical costs and

special education costs in the first

category, and increased lifetime

earnings in the second. Nonrehabilitation programs also realize the

market value benefits of housing quality

improvements, as measured by the

difference between the full and

incremental costs of paint repair and

abatement.

The proposed rule is not expected to

produce any significant monetized

benefits associated with reduced

neonatal mortality. HUD’s review of

data suggests that neonatal mortality

may not be a demonstrated or

measurable risk at maternal blood levels

below 10 ug/dL. Data from CDC’s Third

National Health and Nutrition

Examination Survey (NHANES III)

indicate that only 0.5 percent of

reproductive-aged females have blood

lead levels above 10 ug/dL, which

suggests that the monetized benefit of

avoided neonatal mortality may be just

$0.23 per year per housing unit abated.

In addition, the small percentage of

reproductive-aged females with blood

lead levels above 10 ug/dL may be

primarily attributable to lead risks

unrelated to residential lead-based paint

hazards; CDC estimates that 94 percent

of very high adult elevated blood lead

levels result from occupational

exposure, although some of these

exposures will be controlled by the

previous rule.

Non-Quantifiable Benefits. The

following benefits of lead-based paint

hazard reduction have not been

estimated in monetary terms:

—Improving children’s stature, hearing,

and vitamin D metabolism;

—Reducing juvenile delinquency and

the burden on the educational system;

—Avoiding the parental and family

time, expenses, and emotional costs

involved in caring for poisoned

children;

—Reducing personal injury claims and

court cases; and

—Aesthetic improvements in housing

quality.

At Risk Population. Based on the

NHANES III prevalence data and the

neurotoxicological evidence, this

analysis defines the principal at-risk

population for lifetime earnings to be

the national population of children aged

one and two. Some studies suggest that

children aged one and two are also the

principal at-risk population for special

education benefits, although older

children will also experience significant

benefits.

Reductions in Medical Costs and

Special Education Costs. The estimates

for reduced medical and special

education costs are based on the

Schwartz and CDC estimates, adjusted

for inflation to 1994 dollars and to

reflect NHANES III data on the current

extent of childhood lead poisoning

above 25 μg/dL. Reduced medical and

special education costs are estimated at

$1,800 and $4,000 per child,

respectively.

Increased Lifetime Earnings. The

estimate for increased lifetime earnings

reflect EPA and CDC estimates, adjusted

to reflect NHANES III data on the blood

lead levels in young children. The

analysis adopts the EPA estimate that a

1 year old infant loses $6,092 in lifetime

earnings (based on 1993 dollars) per lost

IQ point. If a 7 percent discount rate is

used, a 1 year old infant loses $1,400 in

lifetime earnings per lost I.Q. point.

This total represents the direct link

between IQ and the wage rate; the

indirect effect of IQ on educational

attainment; and the indirect effect of

lead exposure on labor force

participation. CDC and Schwartz

estimate that 0.245 IQ points (standard

error +/¥0.41) are lost, on average, for

each one μg/dL increase in a 1 year old

child’s blood lead level. Thus,

preventing a one μg/dL increase in a 1

year old child’s blood lead level saves

$1,493 ($6,092×0.245) in lifetime

earnings discounted at 3 percent, and

saves $343 ($1,400×0.245) in lifetime

earnings discounted at 7 percent. The

potential benefit of increased earnings

associated with blood lead reductions

can be calculated by multiplying the

potential blood lead decline for such

young children by the value per unit of

blood lead ($1,493 or $343 per one μg/

dL, discounted at 3 or 7 percent,

respectively). The potential blood lead

reduction can be calculated by

multiplying the average mean blood

lead for children sensitive to cognitive

losses by the total number of such atrisk children.

First Year Monetized Benefits for

Resident Children Aged One and Two.

Medical and special education benefits

of avoiding lead poisoning are $5,800

for each child aged one or two

prevented from developing elevated

blood lead levels above 25 μg/dL.

Census data indicate there are 7.5

million children aged one and two in

the United States in 1990, and NHANES

III data show that 0.6 percent of these

children have blood lead levels above

25 μg/dL. Therefore, the potential first

year medical and special education

benefits of avoiding blood lead levels

above 25 μg/dL in all U.S. children aged

one and two are $261 million

($5,800×7.5 million×0.006). Benefits

from increased earnings are $1,493 or

$343 (depending on the discount rate

used) multiplied by the total blood lead

decline for all 1 and 2 year old children.

NHANES III reported an average blood

lead for 1 and 2 year olds of 4.1 μg/dL.

If, for example, average blood lead could

be reduced to 0.1 μg/dL for all 7.5

million of these children, then the

potential benefit would be $44.8 billion
29194 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

(4.0×7.5 million×$1,493) or $10.3 billion

(4.0×7.5 million×$343) for all U.S.

children. (Of course, the proposed

regulations would affect only children

in housing receiving Federal assistance

and federally owned housing.) NHANES

data suggest that lead-based paint

hazard reduction activities can realize

only a portion of this theoretical

potential benefit of $44.8 billion or

$10.3 billion, because the average blood

lead for children with little or no leadbased paint hazard exposure (e.g.,

affluent children in newer housing) is

approximately 2 μg/dL.

Unit Benefit of Lead Dust Hazard

Reduction. American Housing Survey

data indicate that 70 percent of young

children live in pre-1978 units, or

approximately 5.25 million children

ages one and two. Based on the National

Survey of Lead-Based Paint in Housing,

it is estimated that 20 percent of these

children live in housing units with dust

lead levels on interior window sills of

greater than 1,000 μg/ft2 and another 4

percent are living in units with dust

lead levels of 500–999 μg/ft2. The

average blood lead levels in the study by

the University of Rochester School of

Medicine and the National Center for

Lead-Safe Housing, ‘‘The Relation of

Lead-Contaminated House Dust and

Blood Levels Among Urban Children’’

(1995), suggest that lead dust reduction

could lower the average blood lead level

of children living in the highest dust

lead category (greater than 1,000 μg/ft2)

by 5.47 μg/dL, and the average blood

lead level in the category of 500–999 μg/

ft2 could be reduced by 2.47 μg/dL.

These data are combined with the

present value of lifetime earnings

associated with each one μg/dL in blood

lead ($1,493 or $343) and the estimated

percentage of pre-1978 housing units

failing the window dust standard to

produce a monetized benefit of $516 or

$118 per unit (using a 3 percent or 7

percent discount rate, respectively)

brought up to standard.

5.25 million×(0.2)×(5.47)×($1,493)=$8.6

billion (using a three percent

discount rate)

5.25 million×(0.2)×(5.47)×($343)=$1.97

billion (using a seven percent

discount rate)

5.25 million×(0.04)×(2.47)×($1,493)=

$0.8 billion (using a three percent

discount rate)

5.25 million×(0.04)×(2.47)×($343)=$0.18

billion (using a seven percent

discount rate)

Monetized benefit of enforcing dust

standard in all units=$9.4 billion

(using a 3 percent discount rate)

and $2.5 billion (using a seven

percent discount rate).

24% of 75.8 million pre-1979 housing

units failing window dust

standard=18.2 million units

Monetized benefit per unit brought up

to standard=$516/unit using a 3

percent discount rate and $118/unit

using a 7 percent discount rate.

Unit Benefit of Paint Repair. The RIA

presents a summary of recent studies of

lead-based paint hazard reduction

benefits, as measured by reductions in

childhood elevated blood lead levels.

These studies are presented to illustrate

why the subsequent analysis of paint

repair distinguishes between the direct

benefit of avoided paint chip ingestion

and the indirect benefit of reduced lead

dust hazards associated with interior

deteriorated lead-based paint. This

distinction is essential to avoid double

counting of benefits.

Although the frequency of children

with high elevated blood lead levels has

declined, recent research indicates that

paint chip ingestion is still a significant

factor in the prevalence of very high

blood lead levels in children. Analysis

of data from abdominal radiographs of

children in St. Louis with high blood

lead levels indicates that approximately

one-fourth of all childhood blood lead

levels above 25 μg/dL may be

attributable to paint chip ingestion.

Based on the same data, it is estimated

that the average blood lead level for all

children above 25 μg/dL due to paint

chip ingestion is approximately 40 μg/

dL above the Rochester mean of 6.37 μg/

dL for those children living in units

belonging to the lowest dust lead

category (under 249 μg/ft 2).

This analysis assumes that the

estimated lifetime earnings benefit of

avoided paint chip ingestion does not

double count the estimated benefits for

dust reduction because the Rochester

study excluded children with medical

interventions for very high elevated

blood lead levels. Therefore, the

Rochester data probably excluded

children recovering from paint chip

ingestion. Conversely, this analysis

assumes that the Rochester data used in

the unit benefit analysis for lead dust

removal also reflects benefits for the

fraction of elevated blood lead children

under 25 μg/dL that may be recovering

from paint chip ingestion, because the

Rochester data showed a clear

correlation between deteriorated leadbased paint and lead dust levels.

Data on the number of 1 and 2 year

olds in pre-1978 housing (5.25 million),

the percentage of these children with

very high elevated blood lead levels due

to paint chip ingestion (25 percent of 0.6

percent = 0.15 percent), the average

blood lead decline for all children above

25 μg/dL achieved by repairing

deteriorated lead-based paint (40 μg/dL),

and the lifetime earnings benefit

achieved by each one μg/dL decline in

blood lead ($1,493 or $343) combine to

produce a $535 million or $123 million

total benefit of avoided paint chip

ingestion. Combined with National

Survey data that indicates about 20

percent of the inventory has

deteriorated lead-based paint (15

million), the monetized benefit per unit

in the first year of lead-based paint

repair is $36 or $12 per unit, using a 3

percent or 7 percent discount rate,

respectively.

National Survey data indicates that

approximately 78 percent of units with

deteriorated interior lead-based paint

also fail the standards for window sill

and/ or floor dust lead. By contrast, only

30 percent of the units with no

deteriorated interior lead-based paint

fail the dust standards. These data

suggest that more than 60 percent of the

dust hazards in units with deteriorated

interior lead-based paint are attributable

to that deteriorated lead-based paint.

The higher frequency of dust hazards

in units with deteriorated interior leadbased paint is at least partially

explained by correlation that does not

reflect causation, because deteriorated

lead-based paint and dust and soil

hazards are all disproportionately

concentrated in pre-1940 housing.

However, National Survey data also

indicate that dust hazards are

approximately twice as common in

post-1940 units with deteriorated leadbased paint as in post-1940 units

without deteriorated interior lead-based

paint. Therefore, this analysis assumes

that area cleanup after paint repair

realizes the same benefits as unit

cleanup in one-half of the units with

deteriorated lead-based paint.

Unit Benefit of Soil Hazard

Reduction. The estimated unit benefit of

soil cover is based on the EPA-funded

study by Ann Aschengrau et. al., ‘‘The

Impact of Soil Lead Abatement on

Urban Children’s Blood Lead Levels:

Phase II Results from the Boston Leadin-Soil Lead Demonstration Project’’

(1994), which tested the hypothesis that

a reduction of lead in soil accessible to

children would result in a decrease in

blood lead levels. In this study, the

mean blood lead level of the children

whose homes received soil hazard

reduction plus paint repair and dust

removal declined by 2.5 μg/dL more

than a comparison group whose homes

just received dust removal and paint

repair. With eight percent of units

failing the proposed soil standard, the

calculated total benefit of covering all

soil that fails the standard is $1.57
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29195

billion or $361 million, which is a $261

or $60 benefit per unit with soil cover,

using a 3 percent or 7 percent discount

rate, respectively.

The proposed rule requires soil

abatement when lead in bare soil

exceeds 5,000 μg/g, but National Survey

data indicate that only 3 percent of U.S.

homes exhibit soil lead above this

concentration. The costs of abating soil

lead hazards (i.e. removing/replacing

the soil, or providing permanent cover)

will exceed the cost of interim control

soil cover, but benefits would also be

realized over many more years. The RIA

estimates only the costs and benefits of

soil cover for all soil hazards above 2000

μg/g, because the net effect of

incorporating soil abatement costs and

benefits for the small percentage of

affected units is not expected to

materially affect the cost-benefit

analysis.

Duration of Benefits. The unit benefit

estimates derived for lead dust and soil

hazard reduction and paint repair are

first year benefits, almost entirely

attributable to the present value of

increased lifetime earnings associated

with higher IQs resulting from the

prevention of childhood lead poisoning

among resident children ages one and

two. This present value represents only

the first year benefit because additional

benefits will accrue to a new population

of 1 year olds each year, and to children

older than 1 who move into or visit

units in the years after hazard reduction

activities are performed. Therefore, a

critical issue in assigning total unit

benefits to specific hazard reduction

activities is the expected duration of

risk reductions associated with those

activities.

This analysis assumes that benefits

from lead dust reduction activities

associated with interim controls are

realized for 4 years. In those cases

where the proposed rule requires leadbased paint hazard abatement, the

analysis assumes that dust benefits are

realized for 8 years. These estimates are

based on studies by Farfel et. al. (1994)

and Clark (1995) that measured dust

lead reaccumulation rates in treated

housing. Farfel studied lead dust levels

in abated units over a maximum 3.5

year period. From the data in the article,

dust lead reaccumulation rates on floors

and interior window sills following

abatement were 11 μg/ft2 per year and

36 μg/ft2 per year, respectively. Since

the guidance level for floors and sills is

100 μg/ft2 and 500 μg/ft2 respectively,

these data suggest it would take

approximately 8 years for dust lead to

reaccumulate to levels above the

clearance standards following

abatement, assuming a linear increase

(average dust lead levels at clearance

were 14 μg/ft2 for floors, and 13 μg/ft2

for sills in the Farfel study).

Unpublished data from the Cincinnati

part of the EPA Three Cities Soil

Abatement study by Clark generally

support this conclusion. In the Three

Cities Study in Cincinnati, soil was

abated but no paint abatement or

interim controls occurred. Lead dust

reaccumulation rates were 10–15 μg/ft2

per year on floors and 20–35 μg/ft2 per

year on sills, which is generally

consistent with Farfel’s work. For the

purposes of this regulatory impact

analysis, we have assumed that

abatement will be twice as effective as

interim controls in controlling dust lead

levels over time. Paint repair benefits of

avoided paint chip ingestion are

realized for 5 years because paint repair

should provide approximately 5 years of

protection against significant amounts

of deteriorated lead-based paint, as most

paint will last at least 5 years. The

annual unit benefit for soil cover is

assumed to provide 5 years of benefits,

because the proposed rule requires

repair of any deteriorated exterior leadbased paint whenever soil cover is

required. This assumption reflects

National Survey data indicating a very

high correlation between exterior

deteriorated lead-based paint and soil

hazards.

At this point in the analysis, the first

year benefits calculated for resident 1

and 2 year olds also do not include any

benefits for infants under age one, or for

children over age three. Furthermore,

these estimates do not include any

benefits for other children who may

visit units where hazard reduction

activities are performed, because first

year benefits were calculated only for

children living in units with lead-based

paint hazards. The total monetized unit

benefits of lead-based paint hazard

reduction activities and rough estimates

for additional benefits realized by

children other than the 1 and 2 year

olds actually residing in targeted units

is shown in both Tables 5A (3 percent

discount rate) and 5B (7 percent

discount rate). The first row in each

table shows the first year benefit for

resident 1 and 2 year olds for each type

of lead-based paint hazard activity. The

second row shows the estimated

additional first year benefits for resident

children ages 3 and older and for other

children visiting the targeted unit. This

analysis assumes that the sum of these

benefits is 50 percent of the benefits

realized by 1 and 2 year olds. The third

line shows the second-year benefit for a

new population of 1 year-olds,

discounted at 7 percent. The fourth line

shows the estimated second-year benefit

for children visiting the unit and for

new residents, discounted at 7 percent.

This analysis assumes that second-year

benefits for these other children are 20

percent of the benefit for the new

population of 1 year-olds in the targeted

units. This percentage is lower than the

‘‘other benefit’’ assumption for the first

year, because any new population of

resident children over the age of one

would be limited to units with new

residents (i.e., resulting from unit

turnover). The benefits for years 3

through 20 are calculated using the

same assumptions as applied to year 2,

reflecting the anticipated average

duration of each unit benefit.

Total First-Year Benefit Estimation.

The estimated total benefit of first-year

hazard evaluation and reduction

activities is $1.54 billion or $496.6

million, which is an average of $950 or

$307 per unit using a 3 percent or a 7

percent discount rate, respectively,

assuming no appropriations for

treatment of HUD-owned housing. The

estimated benefit with appropriations is

$1.64 billion or $563.1 million, which is

an average of $1,014 or $348 per unit

(using a 3 percent or a 7 percent

discount rate, respectively). Total

benefits by program are presented in

Tables 6A and 6B.

Net Benefit Estimation. Estimated net

benefits reflect the difference between

costs and benefits associated with the

first year of hazard evaluation and

reduction activities under the proposed

rule. These costs and benefits, however,

include the present value of future costs

and benefits associated with first year

hazard reduction activities (e.g.,

reevaluation costs, lifetime earnings

benefits, and benefits associated with

the second and subsequent years after

hazard reduction activities).

The first-year total net benefits are

$1.08 billion or $38.6 million without

appropriations for HUD-owned housing

and $1.07 billion or $8.8 million with

appropriations. Tables 7A (3 percent

discount rate) and 7B (7 percent

discount rate) present summaries of the

estimated incremental costs, benefits,

and net benefits of the first-year

activities under the proposed rule,

without appropriations for HUD-owned

housing. Tables 8A (3 percent discount

rate) and 8B (7 percent discount rate)

present incremental net benefit (cost)

data by program. Tables 9A (3 percent

discount rate) and 9B (7 percent

discount rate) present estimated

incremental benefit (cost) data per

dwelling unit by program.

Use of Cost-Benefit Analysis in Policy

Development HUD has sought, within

the flexibility provided in the statute, to
29196 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

maximize the benefits relative to the

costs that will derive from the proposed

regulations. The cost-benefit analysis

was useful in estimating the net benefit

that might accrue from alternative leadbased paint policies.

An example of how this occurred is

in the tenant-based rental assistance

programs (subpart O of Part 36). One

policy option for these programs was to

apply the requirements under these

programs to all housing units, as was

done in other subparts of the rule. An

alternative was to continue the current

policy of limiting the applicability of

the requirements only to housing

occupied by families with young

children. (This alternative was uniquely

available in the tenant-based assistance

programs, because the composition of

the households receiving the rental

assistance is known to the agencies

administering the program.) As shown

in tables 5A and 5B, the cost-benefit

analysis indicates that limiting

applicability to units occupied by young

children yields benefits per affected unit

in the tenant-based assistance programs

that are over four times those in other

programs. Therefore the limitation on

applicability was retained in the

proposed rule.

Another policy issue in the tenantbased assistance programs was whether

to require any testing for lead-based

paint hazards or to retain the current

policy of not requiring dust testing and

only requiring treatment of deteriorated

paint. Based on the cost-benefit

analysis, HUD concluded that the

maximum net benefit of dust testing

would derive from composite testing of

housing built prior to 1950 combined

with a thorough cleanup of housing

units that had lead-contaminated dust.

Therefore, that policy is being proposed.

Another example of use of costbenefit analysis is found in the projectbased rental assistance programs. The

Department is proposing to give

property owners in these programs the

flexibility to gain some of the

efficiencies available from prioritizing

hazard reduction according to urgency.

As explained above, under subpart I,

part 36, HUD is proposing that owners

with properties found to have leadbased paint hazards must prepare a

hazard reduction plan that will include

a schedule of hazard reduction activities

consistent with the findings and

recommendations of the risk assessment

report. It is the Department’s intent that

owners should use the hazard reduction

plan to schedule hazard reduction

actions in order of priority, in

accordance with the specific conditions

of each property. For example, units

occupied by young children could be

treated immediately, and those not

occupied by children might be treated at

turnover to take advantage of the

economies of working in vacant units.

This will maintain benefits while

minimizing costs.

2. Sensitivity Analysis and Regulatory

Alternatives

The estimate of benefits is very

sensitive to certain assumptions: (1)

That blood lead levels have remained

steady since phase I of NHANES III, (2)

that the estimated loss of IQ associated

with increased blood lead levels is

correct, (3) that the amount of lifetime

earnings lost per IQ point lost is correct,

and (4) that the blood lead to IQ

relationship holds at all blood lead

levels. In addition, the RIA assumes that

market value benefits offset all paint

repair and abatement costs, except for

incremental costs, and that lead hazard

education activities play a role in

reducing the reaccumulation of lead

dust.

TABLE 5A.—SUMMARY TABLE OF MONETIZED UNIT BENEFITS DISCOUNTING INCREASED LIFETIME EARNINGS AT 3

PERCENT

Source of benefits Unit dust

4 year

Unit dust

8 year Paint repair

Paint hazard abatement

Soil cover

1st Year, 1 and 2 year olds ...................................................................... $516 $516 $36 $36 $261

1st Year, other .......................................................................................... 258 258 18 18 130

2nd Year, 1 year olds ............................................................................... 241 241 17 17 122

2nd Year, other ......................................................................................... 48 48 3 3 25

3rd and 4th Year, 1 year olds .................................................................. 436 436 30 30 221

3rd and 4th Year, other ............................................................................ 87 87 6 6 43

5th Year, 1 year olds ................................................................................ .................... 197 14 14 100

5th Year, other .......................................................................................... .................... 39 3 3 20

Years 6–8, 1 year olds ............................................................................. .................... 517 .................... 36 ....................

Years 6–8, other ....................................................................................... .................... 103 .................... 7 ....................

Years 9–20, 1 year olds ........................................................................... .................... .................... .................... 118 ....................

Years 9–20, other ..................................................................................... .................... .................... .................... 24 ....................

Total $ ............................................................................................ 1,586 2,442 127 312 922

Tenant-Based Assistance ......................................................................... 8,882 .................... 711 .................... ....................

Public Housing .......................................................................................... 2,165 .................... 173 .................... 1,258

Project Based Assistance ......................................................................... 2,062 .................... 165 .................... 1,199

Resident children aged 1 and 2 ............................................................... 75% 78% 76% 80% (76%)

Other children ........................................................................................... 25% 22% 24% 20% (24%)

TABLE 5B.—SUMMARY TABLE OF MONETIZED UNIT BENEFITS DISCOUNTING INCREASED LIFETIME EARNINGS AT 7

PERCENT

Source of benefits Unit dust

4 year

Unit dust

8 year Paint repair

Paint hazard abatement

Soil cover

1st Year, 1 and 2 year olds ...................................................................... $118 $118 $12 $12 $60

1st Year, other .......................................................................................... 59 59 6 6 30

2nd Year, 1 year olds ............................................................................... 55 55 6 6 28

2nd Year, other ......................................................................................... 11 11 1 1 6
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29197

TABLE 5B.—SUMMARY TABLE OF MONETIZED UNIT BENEFITS DISCOUNTING INCREASED LIFETIME EARNINGS AT 7

PERCENT—Continued

Source of benefits Unit dust

4 year

Unit dust

8 year Paint repair

Paint hazard abatement

Soil cover

3rd and 4th Year, 1 year olds .................................................................. 100 100 10 10 51

3rd and 4th Year, other ............................................................................ 20 20 2 2 10

5th Year, 1 year olds ................................................................................ .................... 45 5 5 23

5th Year, other .......................................................................................... .................... 9 1 1 5

Years 6–8, 1 year olds ............................................................................. .................... 118 .................... 12 ....................

Years 6–8, other ....................................................................................... .................... 24 .................... 2 ....................

Years 9–20, 1 year olds ........................................................................... .................... .................... .................... 30 ....................

Years 9–20, other ..................................................................................... .................... .................... .................... 6 ....................

Total $ ............................................................................................ 363 559 43 93 213

Tenant-Based Assistance ......................................................................... 2,033 .................... 241 .................... ....................

Public Housing .......................................................................................... 495 .................... 59 .................... 290

Project Based Assistance ......................................................................... 472 .................... 56 .................... 277

Resident children aged 1 and .................................................................. 275% 78% 76% 80% (76%)

Other children ........................................................................................... 25% 22% 24% 20% (24%)

TABLE 6A.—TOTAL BENEFIT BY PROGRAM DISCOUNTING INCREASED LIFETIME EARNINGS AT 3 PERCENT

Subparts

Program benefit

Pre-1940 1940–1959 1960–1977 Subpart total

Single Family Insured Housing ........................................................ $3,787,800 $2,757,132 $64,541,984 $71,086,916

HUD-Owned Single Family Housing w/ Appropriations ................... 102,093,292 24,126,981 0 126,220,273

HUD-Owned Single Family Housing w/o Appropriations ................. 17,066,312 5,545,774 3,612,638 26,224,723

Multifamily Insured Housing ............................................................. 713,775 357,413 810,900 1,882,088

Multifamily Housing w/ Project-Based Assistance ........................... 43,062,864 15,971,142 26,584,785 85,618,791

HUD-Owned Multifamily Housing w/ Appropriations ........................ 2,858,203 3,987,147 0 6,845,350

HUD-Owned Multifamily Housing w/o Appropriations ...................... 377,254 641,246 1,340,111 2,358,611

Single Family Rehab <5K ................................................................. 6,873,228 4,843,197 231,141 11,947,566

Single Family Rehab 5K–25K .......................................................... 55,770,130 28,692,070 1,310,173 85,772,374

Single Family Rehab >25K ............................................................... 26,874,623 15,072,198 701,376 42,648,197

Multifamily Rehab <5K ..................................................................... 9,828,314 5,022,945 1,071,446 15,922,706

Multifamily Rehab 5K–25K ............................................................... 40,743,005 17,897,352 3,455,093 62,095,451

Multifamily Rehab >25K ................................................................... 20,688,050 9,433,549 1,682,687 31,804,286

Pre-1950 Single Family CPD Program ............................................ 1,901,787 635,918 0 2,537,704

Pre-1950 Multifamily CPD Program ................................................. 2,440,077 420,438 0 2,860,515

Post-1949 Single Family CPD Program ........................................... 0 346,830 413,740 760,570

Post-1949 Multifamily CPD Program ............................................... 0 144,299 186,759 331,059

Public Housing .................................................................................. 24,015,461 139,541,709 83,064,546 246,621,716

Indian Housing .................................................................................. 533,862 3,163,698 1,854,034 5,551,594

Pre-1950 Single Family Tenant-Based Assistance .......................... 278,527,893 49,598,721 0 328,126,614

Pre-1950 Multifamily Tenant-Based Assistance .............................. 387,403,895 66,915,563 0 454,319,457

Post-1949 Single Family Tenant-Based Assistance ........................ 0 13,469,912 17,765,470 31,235,382

Post-1949 Multifamily Tenant-Based Assistance ............................. 0 12,722,350 15,785,036 28,507,386

Total Without Appropriations ..................................................... 920,608,330 393,193,456 224,411,917 1,538,213,703

Total With Appropriations .......................................................... 1,008,116,258 415,120,564 219,459,168 1,642,695,991

Average Benefit per Unit Without Appropriations ............................ 3,338 859 253 950

Average Benefit per Unit With Appropriations ................................. 3,656 907 248 1,014

TABLE 6B.—TOTAL BENEFIT BY PROGRAM DISCOUNTING INCREASED LIFETIME EARNINGS AT 7 PERCENT

Subparts

Program benefit

Pre-1940 1940–1959 1960–1977 Subpart total

Single Family Insured Housing ................................................................................ $3,113,800 $2,430,729 $57,385,920 $62,930,449

HUD-Owned Single Family Housing w/ Appropriations ........................................... 69,733,622 17,064,115 0 86,797,737

HUD-Owned Single Family Housing w/o Appropriations ......................................... 14,029,537 4,889,238 3,212,088 22,130,863

Multifamily Insured Housing ..................................................................................... 483,075 269,719 616,613 1,369,406

Multifamily Housing w/ Project-Based Assistance ................................................... 11,736,817 4,373,242 7,148,962 23,259,021

HUD-Owned Multifamily Housing w/ Appropriations ................................................ 1,465,094 2,156,391 0 3,621,486

HUD-Owned Multifamily Housing w/o Appropriations .............................................. 255,321 483,911 1,019,028 1,758,260

Single Family Rehab <5K ........................................................................................ 1,677,217 1,183,278 56,403 2,916,898
29198 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

TABLE 6B.—TOTAL BENEFIT BY PROGRAM DISCOUNTING INCREASED LIFETIME EARNINGS AT 7 PERCENT—Continued

Subparts

Program benefit

Pre-1940 1940–1959 1960–1977 Subpart total

Single Family Rehab 5K–25K .................................................................................. 13,289,595 6,851,977 313,421 20,454,993

Single Family Rehab >25K ....................................................................................... 6,386,193 3,585,807 167,023 10,139,023

Multifamily Rehab <5K ............................................................................................. 2,342,206 1,196,105 255,142 3,793,452

Multifamily Rehab 5K–25K ....................................................................................... 9,664,369 4,255,435 822,755 14,742,558

Multifamily Rehab >25K ........................................................................................... 4,901,049 2,238,009 399,547 7,538,605

Pre-1950 Single Family CPD Program .................................................................... 970,029 371,936 0 1,341,965

Pre-1950 Multifamily CPD Program ......................................................................... 899,160 172,096 0 1,071,256

Post-1949 Single Family CPD Program ................................................................... 0 305,770 367,867 673,637

Post-1949 Multifamily CPD Program ....................................................................... 0 108,894 142,013 250,907

Public Housing .......................................................................................................... 6,496,376 37,920,895 22,181,353 66,598,623

Indian Housing .......................................................................................................... 190,000 1,165,266 658,736 2,014,002

Pre-1950 Single Family Tenant-Based Assistance .................................................. 84,851,344 16,609,426 0 101,460,770

Pre-1950 Multifamily Tenant-Based Assistance ...................................................... 101,248,758 18,179,713 0 119,428,471

Post-1949 Single Family Tenant-Based Assistance ................................................ 0 8,339,907 11,291,221 19,631,128

Post-1949 Multifamily Tenant-Based Assistance ..................................................... 0 5,775,435 7,309,608 13,085,042

Total Without Appropriations .................................................................................... 262,534,846 120,706,786 113,347,699 496,589,331

Total With Appropriations ......................................................................................... 319,448,703 134,554,144 109,116,583 563,119,430

Average Benefit per Unit Without Appropriations .................................................... 952 264 128 307

Average Benefit per Unit With Appropriations ......................................................... 1,158 294 123 348

TABLE 7A.—COST-BENEFIT SUMMARY FOR FIRST YEAR ACTIVITIES DISCOUNTING INCREASED LIFETIME EARNINGS AT 3

PERCENT

[Millions of dollars, without appropriations]

Hazard Evaluation Costs ......................................................................................................................................................................... $98.4

Hazard Reduction Costs:

Paint repair ....................................................................................................................................................................................... 197.5

Friction/impact work .......................................................................................................................................................................... 56.8

Soil cover .......................................................................................................................................................................................... 3.2

Paint hazard abatement ................................................................................................................................................................... 10.4

Dust cleanup ..................................................................................................................................................................................... 91.7

Total First Year Costs ................................................................................................................................................................... 458.0

Monetized Benefits:

Paint repair ....................................................................................................................................................................................... 77.4

Paint hazard abatement ................................................................................................................................................................... 7.7

Soil cover .......................................................................................................................................................................................... 47.1

Dust cleanup ..................................................................................................................................................................................... 1,230.4

Paint Repair Market Value ............................................................................................................................................................... 175.6

Total First Year Benefits ............................................................................................................................................................... 1,538.2

Total First Year Net Benefits ........................................................................................................................................................ 1,080.2

TABLE 7B.—COST-BENEFIT SUMMARY FOR FIRST YEAR ACTIVITIES DISCOUNTING INCREASED LIFETIME EARNINGS AT 7

PERCENT

[Millions of dollars, without appropriations]

Hazard Evaluation Costs ......................................................................................................................................................................... $98.4

Hazard Reduction Costs:

Paint repair ....................................................................................................................................................................................... 197.5

Friction/impact work .......................................................................................................................................................................... 56.8

Soil cover .......................................................................................................................................................................................... 3.2

Paint hazard abatement ................................................................................................................................................................... 10.4

Dust cleanup ..................................................................................................................................................................................... 91.7

Total First Year Costs ................................................................................................................................................................... 458.0

Monetized Benefits:

Paint repair ....................................................................................................................................................................................... 26.2

Paint hazard abatement ................................................................................................................................................................... 2.3

Soil cover .......................................................................................................................................................................................... 10.9

Dust cleanup ..................................................................................................................................................................................... 281.6
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29199

TABLE 7B.—COST-BENEFIT SUMMARY FOR FIRST YEAR ACTIVITIES DISCOUNTING INCREASED LIFETIME EARNINGS AT 7

PERCENT—Continued

[Millions of dollars, without appropriations]

Paint Repair Market Value ............................................................................................................................................................... 175.6

Total First Year Benefits ............................................................................................................................................................... 496.6

Total First Year Net Benefits ........................................................................................................................................................ 38.6

TABLE 8A.—NET BENEFIT (COST) BY PROGRAM DISCOUNTING INCREASED LIFETIME EARNINGS AT 3 PERCENT

Subparts

(Tables)

Net program benefit (cost)

Subpart total

Pre-1940 1940–1959 1960–1977

Single Family Insured Housing .................................................. $459,050 $60,732 ($1,178,816) ($659,034)

HUD-Owned Single Family Housing w/ Appropriations ............. 7,830,508 ($3,120,987) ($11,132,000) ($6,422,479)

HUD-Owned Single Family Housing w/o Appropriations ........... 2,293,576 248,878 136,418 2,678,871

Multifamily Insured Housing ....................................................... 222,994 63,038 104,963 390,994

Multifamily Housing w/ Project-Based Assistance ..................... 30,986,639 9,784,477 14,591,391 55,362,508

HUD-Owned Multifamily Housing w/ Appropriations .................. 1,294,504 1,300,657 ($2,472,736) 122,425

HUD-Owned Multifamily Housing w/o Appropriations ................ 122,815 129,918 266,423 519,156

Single Family Rehab <5K .......................................................... 4,594,604 1,569,235 ($82,338) 6,081,501

Single Family Rehab 5K–25K .................................................... 25,254,780 1,063,130 ($653,852) 25,664,059

Single Family Rehab >25K ......................................................... 15,860,965 3,641,198 ($78,600) 19,423,562

Multifamily Rehab <5K ............................................................... 7,887,686 3,040,795 228,294 11,156,776

Multifamily Rehab 5K–25K ......................................................... 30,566,711 12,211,993 2,087,658 44,866,362

Multifamily Rehab >25K ............................................................. 15,453,888 6,620,193 1,072,549 23,146,630

Pre-1950 Single Family CPD Program ...................................... 689,177 169,532 0 858,708

Pre-1950 Multifamily CPD Program ........................................... 1,417,101 206,207 0 1,623,308

Post-1949 Single Family CPD Program ..................................... 0 15,565 15,623 31,188

Post-1949 Multifamily CPD Program ......................................... 0 29,235 37,129 66,364

Public Housing ............................................................................ 18,043,621 95,121,760 54,949,059 168,114,440

Indian Housing ............................................................................ 276,512 1,231,646 592,652 2,100,809

Pre-1950 Single Family Tenant-Based Assistance .................... 233,517,549 39,190,859 0 272,708,409

Pre-1950 Multifamily Tenant-Based Assistance ........................ 353,480,495 59,408,108 0 412,888,603

Post-1949 Single Family Tenant-Based Assistance .................. 0 6,077,413 7,728,894 13,806,307

Post-1949 Multifamily Tenant-Based Assistance ....................... 0 8,690,078 10,722,920 19,412,998

Total Without Appropriations ...................................................... 741,128,163 248,573,990 90,540,366 1,080,242,519

Total With Appropriations ........................................................... 747,836,784 246,374,864 76,532,789 1,070,744,437

TABLE 8B.—NET BENEFIT (COST) BY PROGRAM DISCOUNTING INCREASED LIFETIME EARNINGS AT 7 PERCENT

Subparts (tables)

Net program benefit (cost)

Subpart total

Pre-1940 1940–1959 1960–1977

Single Family Insured Housing ................................................ ($214,950) ($265,671) ($8,334,880) ($8,815,501)

HUD-Owned Single Family Housing w/ Appropriations ........... (24,529,162) (10,183,853) (11,132,000) (45,845,015)

HUD-Owned Single Family Housing w/o Appropriations ......... (743,199) (407,658) (264,132) (1,414,989)

Multifamily Insured Housing ..................................................... (7,706) (24,656) (89,325) (121,688)

Multifamily Housing w/ Project-Based Assistance ................... (339,407) (1,813,424) (4,844,431) (6,997,262)

HUD-Owned Multifamily Housing w/ Appropriations ................ (98,605) (530,099) (2,472,736) (3,101,440)

HUD-Owned Multifamily Housing w/o Appropriations .............. 882 (27,417) (54,660) (81,195)

Single Family Rehab <5K ........................................................ (601,407) (2,090,684) (257,076) (2,949,167)

Single Family Rehab 5K–25K .................................................. (17,225,755) (20,776,963) (1,650,604) (39,653,322)

Single Family Rehab >25K ....................................................... (4,627,465) (7,845,193) (612,953) (13,085,611)

Multifamily Rehab <5K ............................................................. 401,578 (786,045) (588,010) (972,478)

Multifamily Rehab 5K–25K ....................................................... (511,926) (1,429,924) (544,680) (2,486,530)

Multifamily Rehab >25K ........................................................... (333,114) (575,347) (210,590) (1,119,050)

Pre-1950 Single Family CPD Program .................................... (242,582) (94,450) 0 (337,032)

Pre-1950 Multifamily CPD Program ......................................... (123,816) (42,135) 0 (165,951)

Post-1949 Single Family CPD Program ................................... 0 (25,495) (30,250) (55,745)

Post-1949 Multifamily CPD Program ....................................... 0 (6,170) (7,618) (13,787)

Public Housing .......................................................................... 524,536 (6,499,054) (5,934,134) (11,908,653)

Indian Housing .......................................................................... (67,350) (766,787) (602,646) (1,436,782)

Pre-1950 Single Family Tenant-Based Assistance .................. 39,841,001 6,201,564 0 46,042,565

Pre-1950 Multifamily Tenant-Based Assistance ...................... 67,325,359 10,672,258 0 77,997,617

Post-1949 Single Family Tenant-Based Assistance ................ 0 947,407 1,254,645 2,202,052

Post-1949 Multifamily Tenant-Based Assistance ..................... 0 1,743,162 2,247,492 3,990,654

Total Without Appropriations ......................................... 83,054,679 (23,912,680) (20,523,853) 38,618,147
29200 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

TABLE 8B.—NET BENEFIT (COST) BY PROGRAM DISCOUNTING INCREASED LIFETIME EARNINGS AT 7 PERCENT—

Continued

Subparts (tables)

Net program benefit (cost)

Subpart total

Pre-1940 1940–1959 1960–1977

Total With Appropriations .............................................. 59,169,229 (34,191,557) (33,809,796) (8,832,124)

TABLE 9A.—NET BENEFIT (COST) PER UNIT BY PROGRAM DISCOUNTING INCREASED LIFETIME EARNINGS AT 3 PERCENT

Subparts

Net program Benefit (cost)

Subpart

Pre-1940 1940–1959 1960–1977

Single Family Insured Housing .................................................................................. $92 $10 ($3) ($2)

HUD-Owned Single Family Housing w/ Appropriations ............................................. 348 (246) (550) (116)

HUD-Owned Single Family Housing w/o Appropriations ........................................... 102 20 7 48

Multifamily Insured Housing ....................................................................................... 119 34 9 26

Multifamily Housing w/ Project-Based Assistance ..................................................... 1,238 391 196 445

HUD-Owned Multifamily Housing w/ Appropriations .................................................. 1,306 387 (133) 5

HUD-Owned Multifamily Housing w/o Appropriations ................................................ 124 39 14 23

Single Family Rehab <5K .......................................................................................... 554 132 (72) 285

Single Family Rehab 5K–25K .................................................................................... 749 27 (175) 336

Single Family Rehab >25K ........................................................................................ 1,468 279 (63) 1,356

Multifamily Rehab <5K ............................................................................................... 1,114 419 74 640

Multifamily Rehab 5K–25K ......................................................................................... 1,228 498 209 755

Multifamily Rehab >25K ............................................................................................. 1,845 804 354 1,178

Pre-1950 Single Family CPD Program ...................................................................... 579 214 0 433

Pre-1950 Multifamily CPD Program ........................................................................... 709 272 0 589

Post-1949 Single Family CPD Program ..................................................................... 0 20 7 10

Post-1949 Multifamily CPD Program ......................................................................... 0 39 14 20

Public Housing ............................................................................................................ 1,354 455 247 378

Indian Housing ............................................................................................................ 1,070 304 138 244

Pre-1950 Single Family Tenant-Based Assistance .................................................... 5,287 2,216 0 4,409

Pre-1950 Multifamily Tenant-Based Assistance ........................................................ 5,335 2,239 0 4,450

Post-1949 Single Family Tenant-Based Assistance .................................................. 0 344 132 181

Post-1949 Multifamily Tenant-Based Assistance ....................................................... 0 328 122 170

TABLE 9B.—NET BENEFIT (COST) PER UNIT BY PROGRAM DISCOUNTING INCREASED LIFETIME EARNINGS AT 7 PERCENT

Subparts

Net Program Benefit

(Cost) Subpart

Pre-1940 1940–1959 1960–1977

Single Family Insured Housing ................................................................................ ($43) ($42) ($23) ($24)

HUD-Owned Single Family Housing w/ Appropriations ........................................... (1,089) (804) (550) (827)

HUD-Owned Single Family Housing w/o Appropriations ......................................... (33) (32) (13) (26)

Multifamily Insured Housing ..................................................................................... (4) (13) (8) (8)

Multifamily Housing w/ Project-Based Assistance ................................................... (14) (72) (65) (56)

HUD-Owned Multifamily Housing w/ Appropriations ................................................ (100) (158) (133) (135)

HUD-Owned Multifamily Housing w/o Appropriations .............................................. 1 (8) (3) (4)

Single Family Rehab <5K ........................................................................................ (72) (175) (225) (138)

Single Family Rehab 5K–25K .................................................................................. (511) (534) (441) (519)

Single Family Rehab >25K ....................................................................................... (428) (601) (488) (914)

Multifamily Rehab <5K ............................................................................................. 57 (108) (190) (56)

Multifamily Rehab 5K–25K ....................................................................................... (21) (58) (55) (42)

Multifamily Rehab >25K ........................................................................................... (40) (70) (69) (57)

Pre-1950 Single Family CPD Program .................................................................... (204) (119) 0 (170)

Pre-1950 Multifamily CPD Program ......................................................................... (62) (56) 0 (60)

Post-1949 Single Family CPD Program ................................................................... 0 (32) (13) (18)

Post-1949 Multifamily CPD Program ....................................................................... 0 (8) (3) (4)

Public Housing .......................................................................................................... 39 (31) (27) (27)

Indian Housing .......................................................................................................... (261) (189) (140) (167)

Pre-1950 Single Family Tenant-Based Assistance .................................................. 902 351 0 744

Pre-1950 Multifamily Tenant-Based Assistance ...................................................... 1,016 402 0 841

Post-1949 Single Family Tenant-Based Assistance ................................................ 0 54 21 29

Post-1949 Multifamily Tenant-Based Assistance ..................................................... 0 66 26 35

Steady Blood Lead Levels. Phase I of

the National Health and Nutrition

Evaluation Survey (NHANES) III

conducted from October 1988 to

October 1991 revealed that average

blood lead levels for children under six
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29201

had declined since NHANES II. If blood

lead levels have continued to decline

since Phase I, the benefit estimate

would decline. The change in net

benefits of the proposed rule associated

with any continuing decline in blood

lead levels is impossible to quantify

because the magnitude of any such

decline cannot be quantified from

available data, and because there are no

systematic data on any associated

potential declines in lead-based paint

hazards (which would reduce the costs

of the proposed rule). It is probable that

any continuing decline in blood lead

levels would reflect a continuing

decline in lead-based paint hazards (e.g.

soil and dust lead levels). Therefore,

hazard reduction costs could decline to

an extent roughly proportionate to any

decline in hazard reduction benefits.

Sensitivity of Lifetime Earnings and

IQ to Blood Estimates. The monetized

benefits of preventing elevated blood

lead levels are almost entirely due to the

benefits from increased lifetime

earnings associated with the higher

cognitive abilities of children who are

prevented from being lead poisoned.

Increased lifetime earnings are

quantified by multiplying the amount of

lifetime earnings lost per IQ point

(EPA’s $6,092 estimate using a 3 percent

discount rate, or $1,400 using a 7

percent discount rate) by the average

amount of IQ points lost per each one

ug/dL increase in blood (Schwartz’ .245

point estimate). Therefore, the analysis

assumes that preventing a one ug/dL

increase in a 1 year old child’s blood

lead level saves $1,493 or $343 in

lifetime earnings. However, this benefit

is sensitive both to the dollar estimate

of lifetime earnings per IQ point lost

(and that estimate’s chosen discount

rate) and to the estimate of IQ points

lost per one ug/dL increase in blood

lead levels. Similarly, more recent metaanalysis estimated .257 IQ points lost

per one ug/dL increase in blood lead

levels; estimated IQ losses were found

to be .185 point per one ug/dL increase

in populations that were socially

disadvantaged and .289 point per one

ug/dL increase in populations that were

not disadvantaged. Substituting the .185

figure for the .245 figure would reduce

the total benefits derived from increased

lifetime earnings by 27 percent (because

0.185 is 73 percent of 0.245) to a net

benefit of $712 million (using a 3

percent discount rate).

Threshold for Blood Lead to IQ

Relationship. Another uncertainty about

the blood lead to IQ relationship is

whether it applies at relatively low and

high blood lead levels. The available

evidence does not indicate any apparent

threshold but the data on children

under five ug/dL is extremely limited. If

the lifetime earnings benefit is not

realized at these lower levels, then the

benefits of the proposed rule would be

substantially reduced. For example, the

Regulatory Impact Analysis estimates

the annual benefit of increased lifetime

earnings from preventing blood levels

above 5 ug/dL for children ages one and

two to equal $19.5 billion, or an average

of $198 per unit brought up to the

proposed standard for lead dust (using

a 3 percent discount rate).

Market Value for Paint Repair and

Abatement. The market value of paint

repair accounts for about 11 percent, or

$175 million of the $1,080 million in

net benefits associated with first year

hazard reduction activities under the

proposed rule. The first year costs of

paint repair are shown to be

approximately 43 percent of total firstyear costs. If the cost-benefit analysis

reflected no benefits for the market

value of paint repair associated with

first year activities, then the proposed

rule would still yield net benefits of

$905 million for first year activities.

The proposed rule only requires leadbased paint hazard abatement for

rehabilitation exceeding $25,000 per

unit, and for HUD-owned housing with

sufficient appropriations. Therefore,

assigning no market value to nonrehabilitation programs does not affect

the lead-based paint hazard abatement

costs of the proposed rule without

appropriations. Applying the full cost of

abatement for HUD-owned housing with

appropriations without any market

value for associated rehabilitation work

would result in net costs for the HUDOwned Single Family Housing and

HUD-owned and Mortgagee-inPossession Multifamily Housing

Subparts of the proposed rule. The

market value of rehabilitation work

associated with abatement, however,

would certainly increase the expected

market value of HUD-owned property.

Therefore, the full costs of abatement

should be substantially offset by the

increased resale value of these

properties.

Hazard Education. The Regulatory

Impact Analysis notes that many hazard

reduction studies reflect some amount

of lead hazard education for residents

and that it has been difficult to separate

the benefits of hazard reduction from

the benefits of hazard education. The

estimated duration of dust removal

benefits assumes that the baseline

includes increased resident education

about lead hazards, which reduces the

reaccumulation of lead dust.

3. Economic Impacts

The economic impact analysis of

which entities will bear the cost of the

proposed lead-based paint hazard

evaluation and reduction requirements

for HUD programs is discussed below.

Single Family Insurance. Those

purchasing and/or selling a home with

Federal Housing Administration

mortgage insurance will bear the cost of

lead-based paint hazard evaluation and

reduction requirements for single family

insurance programs. The visual

inspection required by the proposed

rule will be conducted during

appraisals, which are typically paid for

by the purchaser. Repair of deteriorated

surfaces and cleanup of the worksite

area are performed before endorsement

or financed through an escrow account,

which implies that the FHA could pass

on the cost of repair and cleanup to the

buyer through raising the price of

insurance. Higher insurance prices

resulting from the additional costs of

lead-based paint hazard evaluation and

control activities could lessen the

competitiveness of FHA insurance

compared to other mortgage insurers.

The average cost of the proposed rule

for single family insurance is $192 per

unit, but 85 percent of this full cost

could be recovered by the market value

of paint repair. Compared to the cost of

mortgage insurance and closing costs for

a mortgage, the additional cost of the

proposed rule is negligible. The

distribution of costs for lead-based paint

hazard evaluation and reduction,

however, creates more significant

economic impacts for units that incur

the highest possible combination of

costs. This combination of unit costs is

incurred by units that require both

interior paint repair at a cost of $500

and exterior paint repair at a cost of

$100. These units would also require

cleanup of the affected work area at a

cost of $75, plus $10 for the initial

visual evaluation, for a total cost of

$1,585.

Project-Based and Tenant-Based

Rental Assistance. For multifamily

project-based assistance programs, the

proposed rule allows the owner to

request a rent increase from HUD to pay

for the costs of implementing an interim

control plan. For tenant-based

assistance programs, the proposed rule

states that the owner is responsible for

paint repair and cleanup, but it may be

possible for owners to raise the contract

rent to finance the cost of lead-based

paint hazard evaluation and reduction.

Although this option is not explicitly

stated in the proposed rule, it is

reasonable to expect that property

owners will try to recover regulatory
29202 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

costs, and income-based limits on

tenant-paid rents under this program

suggest that HUD would pay the cost of

any rent increase. For the purpose of

this analysis, it is assumed that HUD

will directly or indirectly pay the

incremental costs of the proposed rule

for tenant-based assistance programs

and for project-based assistance

programs.

If HUD is directly or indirectly paying

the costs of the proposed rule for rental

assistance programs, then the economic

impact for these programs can be

measured in terms of the number of

households or units that HUD would be

unable to assist each year with the funds

that are expended on lead-based paint

hazard evaluation and reduction. The

total annual incremental cost of the

proposed rule for tenant- and projectbased assistance programs is $77

million. The annual per-household cost

of tenant-based assistance is less than

$7,000 per unit. Therefore, with funds

expended on lead-based paint hazard

evaluation and reduction for projectand tenant-based assistance programs,

HUD could provide rental assistance to

more than 11,000 families. This

represents less than 1 percent of the

total number of households presently

receiving tenant-based rental assistance.

Rehabilitation Programs. In the case

of rehabilitation programs, there is no

explicit acknowledgement in the

proposed rule that HUD will finance the

additional costs of lead-based paint

hazard evaluation and reduction, which

suggests that the recipients of federal

funds are responsible for funding these

activities. These recipients, however,

are receiving HUD assistance for

rehabilitation. Therefore, it is reasonable

to assume that the costs of the proposed

rule will reduce the amount of

rehabilitation work that the recipients

can finance. In this case, the economic

impact of the proposed rule can be

measured by determining the number of

rehabilitation projects that would not be

funded due to the recipients’ inability to

finance these additional costs. Dividing

the total cost of the proposed rule for

rehabilitation programs ($120 million)

by an average cost of $15,000 per unit

for rehabilitation work indicates that the

proposed rule could cause a loss of

financing for more than 8,000 units in

need of rehabilitation each year.

Public and Indian Housing. The

economic impact of the proposed rule

on Public and Indian housing programs

can be measured by the amount by

which annual maintenance and repair

services would be reduced for each unit.

Based on the average incremental cost

per unit of the proposed rule, public

housing programs would have to reduce

annual maintenance and repair

expenses by $149 per unit. Indian

programs would have to reduce such

expenditures by $292 per unit.

4. Environmental Justice

President Clinton issued Executive

Order 12898 and an accompanying

Presidential memorandum to focus

attention on the environmental and

human health conditions in minority

and low-income communities with the

goal of achieving environmental justice.

As part of HUD’s efforts to incorporate

environmental justice into its policies

and programs, the Department has

examined the impacts of the proposed

rule on low-income populations and

minority populations. The proposed

rule promotes environmental justice in

the following ways:

—Conducting lead-based paint

evaluation and control activities in

federally assisted housing will most

significantly benefit low-income and

minority populations because lowincome and minority families are

more likely to have children with

elevated blood lead levels, and

because low-income families are more

likely to live in federally assisted

housing.

—By offering a more consistent and

streamlined approach to addressing

lead-based paint hazards, the

proposed rule increases the

effectiveness of lead-based paint

hazard evaluation and control to the

benefit of low-income and minority

populations.

—In developing the proposed rule, the

Department provided ample

opportunity for participation by the

public, including low-income housing

advocates and tenant representatives.

—Provisions within the proposed rule

ensure that low-income and minority

populations will have access to public

information about lead-based paint

hazards. First, the proposed rule

requires that the lead hazard

information pamphlet developed by

the EPA be distributed to existing

owner-occupants and tenants residing

in dwelling units covered by the

proposed rule. Forthcoming Section

1018 requirements to be established

in 24 CFR part 38 will require new

purchasers and new tenants of target

housing to receive the EPA lead

hazard information pamphlet.

Second, the proposed rule requires

that occupants of federally owned

housing and federally assisted rental

housing be provided written notice of

risk assessments, paint inspections, or

hazard reduction activities required

by this regulation and undertaken at

the property.

VIII. Other Matters

Public Reporting Burden

(a) In accordance with 5 CFR

1320.5(a)(1)(iv), the Department is

setting forth the following concerning

the proposed collection of information:

(1) Title of the information collection

proposal: Requirements for Notification,

Evaluation and Reduction of Lead-Based

Paint Hazards in Federally Owned

Residential Property and Housing

Receiving Federal Assistance (FR–3482)

(2) Summary of the collection of

information: EPA Lead Hazard

Information Pamphlet, Notice of

Evaluation/Hazard Reduction; Hazard

Reduction Plan; Elevated Blood-Level

(EBL) Reporting. These collections of

information are new requirements and

are necessary for HUD to comply with

the Residential Lead-Based Paint Hazard

Reduction Act of 1992. In the case of the

EPA pamphlet, notice of hazard

evaluation and reduction activities, and

EBL reporting, the new requirements

replace existing information collection

requirements found in HUD’s program

regulations pertaining to lead-based

paint. As with the other requirements of

the proposed rule, HUD has tried to

simplify the information collection

requirements and minimize the burden

to respondents.

(3) Description of the need for the

information and its proposed use:

EPA Lead Hazard Information

Pamphlet: Statutory requirement, to

provide information on health risks

associated with exposure to lead

hazards and recommended methods for

evaluating and reducing such hazards,

and related information.

Notice of Evaluation/Hazard

Reduction: Statutory requirement, to

provide notice to tenants describing the

nature, scope and results of any risk

assessment, paint inspection, or hazard

reduction activities undertaken.

Hazard Reduction Plan: Risk

assessments are statutorily required in

housing receiving project-based

assistance, according to a schedule set

forth in the proposed rule. If a risk

assessment report identifies lead-based

paint hazards, and the property owner

requests a rent adjustment increase from

HUD to pay for hazard reduction

activities, a hazard reduction plan must

be submitted for approval by HUD as

part of the standard rent adjustment

increase request.

Elevated Blood Level (EBL) Reporting:

The rule requires evaluation and

reduction of lead-based paint hazards

when an EBL child is identified in the

covered properties in which HUD

maintains a continuing relationship

with the recipients of Federal housing
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29203

assistance, or that is owned and to be

sold by HUD and in which an EBL child

resides. The reporting requirement

states that the name and address of an

EBL child shall be reported to the State

or local health agency to ensure

coordination between housing and

health agencies. The reporting

requirements currently exists in some

HUD programs (e.g. Section 8 tenantbased rental assistance).

(4) Description of the likely

respondents, including the estimated

number of likely respondents, and

proposed frequency of response to the

collection of information: Residential

property owners and public housing

agencies receiving Federal housing

assistance; Federal grantees; any Federal

agency that sells a pre-1978 residential

property that is owned by the agency.

Additional information on the numbers

of respondents and frequency of

responses is given in the next

paragraph.

(5) Estimate of the total reporting and

recordkeeping burden that will result

from the collection of information:

REQUIREMENTS FOR NOTIFICATION, EVALUATION, AND REDUCTION OF LEAD-BASED PAINT HAZARDS IN FEDERALLY OWNED

RESIDENTIAL PROPERTY AND HOUSING RECEIVING FEDERAL ASSISTANCE (FR–3482)

[Information collection requirement: Annual cost and hour burden]

Type of collection

Proposed

section of

24 CFR affected

Number of

respondents

Frequency

of response

Hour

burden Annual cost

Lead Pamphlet ...................................................................................... 36.62 1,096,367 1 36,546 $825,934.00

36.144

36.162

36.230

36.256

36.274

36.294

Notice of Evaluation/Hazard Reduction ................................................ 36.64 1,024,050 1 47,569 567,689.00

36.164

36.232

36.276

Hazard Reduction Plan ......................................................................... 36.168 360 1 2,340 32,292.00

EBL Reporting ...................................................................................... 36.170 2,005 1 13,783 173,851.00

36.188

36.208

36.284

36.302

Total ........................................................................................... .................... 2,122,782 1 100,238 1,599,766.00

(b) In accordance with 5 CFR

1320.8(d)(1), the Department is

soliciting comments from members of

the public and affected agencies

concerning the proposed collection of

information to:

(1) Evaluate whether the proposed

collection of information is necessary

for the proper performance of the

functions of the agency, including

whether the information will have

practical utility;

(2) Evaluate the accuracy of the

agency’s estimate of the burden of the

proposed collection of information;

(3) Enhance the quality, utility, and

clarity of the information to be

collected; and

(4) Minimize the burden of the

collection of information on those who

are to respond; including through the

use of appropriate automated collection

techniques or other forms of information

technology, e.g., permitting electronic

submission of responses.

Interested persons are invited to

submit comments regarding the

information collection requirements in

this proposal. Under the provisions of 5

CFR part 1320, OMB is required to make

a decision concerning this collection of

information between 30 and 60 days

after today’s publication date. Therefore,

a comment on the information

collection requirements is best assured

of having its full effect if OMB receives

the comment within 30 days of today’s

publication. This time frame does not

affect the deadline for comments to the

agency on the proposed rule, however.

Comments must refer to the proposal by

name and docket number (FR–3482) and

must be sent to:

Joseph F. Lackey, Jr., HUD Desk Officer,

Office of Management and Budget,

New Executive Office Building,

Washington, DC 20503

and

Reports Liaison Officer, Office of the

Lead-Based Paint Abatement and

Poisoning Prevention, Department of

Housing & Urban Development, 451—

7th Street, SW., Room B–133,

Washington, DC 20410.

The information collection

requirements contained in this rule have

been submitted to the Office of

Management and Budget under the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501–3520). The Department has

determined that the following

provisions contain information

collection requirements.

Regulatory Flexibility Act

The Secretary, in accordance with the

Regulatory Flexibility Act (5 U.S.C.

605(b)), has reviewed this proposed rule

before publication and by approving it

certifies that this proposed rule does not

have a significant economic impact on

a substantial number of small entities,

other than those impacts specifically

required to be applied universally by

the statute. The requirements of the

proposed rule are applicable only to a

limited and specifically defined portion

of the nation’s housing stock. To the

extent that the requirements affect small

entities, the impact is generally

discussed in the economic analysis that

accompanies the proposed rule.

Environmental Impact

A Finding of No Significant Impact

with respect to the environment was

made in accordance with HUD

regulations in 24 CFR part 50 that

implement section 102(2)(C) of the
29204 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

National Environmental Policy Act of

1969 (42 U.S.C. 4332). This Finding is

available for public inspection between

7:30 a.m. and 5:30 p.m. weekdays in the

Office of the Rules Docket Clerk, Office

of General Counsel, Room 10276,

Department of Housing and Urban

Development, 451 Seventh Street, SW.,

Washington, DC.

Executive Order 12866

Consistent with Executive Order

12866 and President Clinton’s

memorandum of March 4, 1995, to all

Federal Departments and Agencies on

the subject of Regulatory Reinvention,

the Department is reviewing all of its

regulations to determine which

regulations can be eliminated,

streamlined, or consolidated with other

regulations. As part of this review, at the

final rule stage this proposed rule will

undergo revisions in accordance with

the President’s regulatory reform

initiatives. In addition to comments on

the substance of this proposed rule, the

Department welcomes comments on

how this proposed rule may be made

more understandable and less

burdensome in its final form.

OMB reviewed this proposed rule

under Executive Order 12866,

Regulatory Planning and Review. Any

changes made to the proposed rule as a

result of that review are identified in the

docket file, which is available for public

inspection at the Office of the Rules

Docket Clerk, Office of General Counsel,

Room 10276, Department of Housing

and Urban Development, 451 Seventh

Street, SW., Washington, DC 20410–

0500. The Regulatory Impact Analysis

performed on this proposed rule is also

available for public inspection between

7:30 a.m. and 5:30 p.m. weekdays at the

Office of the Rules Docket Clerk.

Executive Order 12612, Federalism

The General Counsel, as the

Designated Official under Section 6(a) of

Executive Order 12612, Federalism, has

determined that the policies contained

in this proposed rule will not have

substantial direct effects on States or

their political subdivisions, or the

relationship between the Federal

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government. As a result, the

proposed rule is not subject to review

under the Order. Promulgation of this

proposed rule expands coverage of the

applicable regulatory requirements

pursuant to statutory direction.

Executive Order 12606, the Family

The General Counsel, as the

Designated Official under Executive

Order 12606, The Family, has

determined that this proposed rule does

not have potential for significant impact

on family formation, maintenance, and

general well-being, and, thus, is not

subject to review under the order. No

significant change in existing HUD

policies or programs will result from

promulgation of this proposed rule, as

those policies and programs relate to

family concerns.

List of Subjects

24 CFR Part 36

Grant programs—housing and

community development, Lead

poisoning, Mortgage insurance, Rent

subsidies, Reporting and recordkeeping

requirements.

24 CFR Part 37

Grant programs—housing and

community development, Lead

poisoning, Mortgage insurance, Rent

subsidies, Reporting and recordkeeping

requirements.

Accordingly, title 24 of the Code of

Federal Regulations, is proposed to be

amended by removing part 35,

consisting of subparts A through G, and

by adding part 36, consisting of subparts

A through O, and by adding part 37,

consisting of subparts A through J, as

follows:

PART 35—LEAD-BASED PAINT

POISONING PREVENTION IN CERTAIN

RESIDENTIAL STRUCTURES

[REMOVED]

PART 36—EVALUATION AND

REDUCTION OF LEAD-BASED PAINT

HAZARDS IN FEDERALLY OWNED

RESIDENTIAL PROPERTY AND

HOUSING RECEIVING FEDERAL

ASSISTANCE

Subpart A—General Requirements

Sec.

36.1 Purpose and applicability.

36.2 Exemptions.

36.3 Assumption of lead-based paint or

lead-based paint hazards or both.

36.4 Delay of evaluation, paint repair and

hazard reduction activities on exterior

surfaces.

36.6 Prohibition against the use of paint

containing lead in federally owned

housing and housing receiving Federal

assistance.

36.8 Prohibited methods of paint removal.

36.10 Compliance with Federal laws and

authorities.

36.12 Compliance with local codes and

regulations.

36.13 Minimum requirements.

36.14 Waivers.

36.15 Noncompliance with the

requirements of this part 36 and part 37.

36.16 Definitions.

Subpart B—State Procedures

36.20 Purpose and applicability.

36.22 General eligibility criteria.

36.24 General procedures.

36.26 Specific procedures.

Subpart C—Disposition of Residential

Property Owned by Federal Agencies Other

Than HUD

36.40 Purpose and applicability.

36.42 Exemption.

36.44 Disposition of residential property

constructed before 1960.

36.46 Disposition of residential property

constructed after 1959 and before 1978.

36.48 Other required practices.

Subpart D—Project-Based Assistance

Provided by a Federal Agency Other Than

HUD

36.60 Purpose and applicability.

36.62 Lead hazard information pamphlet.

36.64 Notice of evaluation, paint repair and

hazard reduction activities.

36.66 Risk assessments.

36.68 Hazard reduction.

36.70 EBL child.

36.72 Other required practices.

Subpart E—Single Family Insured Property

36.80 Purpose and applicability.

36.82 Exemptions.

36.84 Lead hazard information pamphlet.

36.86 Visual evaluation of painted surfaces.

36.88 Paint repair and cleanup.

Subpart F—Disposition of HUD-Owned

Single Family Property (With Sufficient

Appropriations)

36.100 Purpose and applicability.

36.102 Exemptions.

36.104 Disposition of single family property

constructed before 1960.

36.106 Disposition of single family property

constructed after 1959 and before 1978.

36.108 Other required practices.

Subpart G—Disposition of HUD-Owned

Single Family Property (Without Sufficient

Appropriations)

36.120 Purpose and applicability.

36.122 Exemptions.

36.124 Visual evaluation of painted

surfaces.

36.126 Paint repair and cleanup.

36.128 Monitoring.

Subpart H—Multifamily Insured Property

36.140 Purpose and applicability.

36.142 Exemptions.

36.144 Lead hazard information pamphlet.

36.146 Visual evaluation of painted

surfaces.

36.148 Paint repair and cleanup.

Subpart I—Project-Based Assistance

36.160 Purpose and applicability.

36.162 Lead hazard information pamphlet.

36.164 Notice of evaluation, paint repair

and hazard reduction activities.

36.166 Risk assessments.

36.168 Hazard reduction plan.

36.169 Hazard reduction.

36.170 EBL child.

36.172 Other required practices.
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29205

Subpart J—Disposition of HUD-Owned and

Mortgagee-in-Possession Multifamily

Property (With Sufficient Appropriations)

36.180 Purpose and applicability.

36.182 Exemption.

36.184 Disposition of multifamily property

constructed before 1960.

36.186 Disposition of multifamily property

constructed after 1959 and before 1978.

36.188 EBL child.

36.190 Other required practices.

Subpart K—Disposition of HUD-Owned and

Mortgagee-in-Possession Multifamily

Property (Without Sufficient

Appropriations)

36.200 Purpose and applicability.

36.202 Exemptions.

36.204 Visual evaluation of painted

surfaces.

36.206 Paint repair and cleanup.

36.208 EBL child.

36.210 Monitoring.

Subpart L—Rehabilitation

36.220 Purpose and applicability.

36.222 Definitions.

36.224 Exemptions.

36.226 Rehabilitation costs.

36.228 Calculating rehabilitation costs for

the Flexible Subsidy-CILP program.

36.229 Determining evaluation, paint repair

and hazard reduction requirements.

36.230 Lead hazard information pamphlet.

36.232 Notice of evaluation, paint repair

and hazard reduction activities.

36.234 Residential property receiving an

average of less than $5,000 per unit in

Federal rehabilitation assistance.

36.236 Residential property receiving an

average of $5,000 or more and $25,000 or

less per unit in Federal rehabilitation

assistance.

36.238 Residential property receiving an

average of more than $25,000 per unit in

Federal rehabilitation assistance.

36.240 Other required practices.

Subpart M—Community Planning and

Development (CPD) Non-Rehabilitation

Programs

36.250 Purpose and applicability.

36.252 Definitions—subrecipient.

36.254 Exemption—limited paint

inspection.

36.256 Lead hazard information pamphlet.

36.258 Residential property constructed

before 1950.

36.260 Residential property constructed

after 1949 and before 1978.

36.262 Tenant-based rental assistance.

Subpart N—Public and Indian Housing

Programs

36.270 Purpose and applicability.

36.272 Definitions—Public or Indian

housing project.

36.274 Lead hazard information pamphlet.

36.276 Notices of evaluation and reduction

of lead-based paint and lead-based paint

hazards.

36.278 Evaluation.

36.280 Interim controls.

36.282 Abatement.

36.284 EBL child.

36.286 Other required practices.

Subpart O—Tenant-Based Rental

Assistance

36.290 Purpose and applicability.

36.292 Exemptions.

36.294 Lead hazard information pamphlet.

36.296 Residential property constructed

before 1950; initial inspections.

36.298 Residential property constructed

before 1950; periodic inspections.

36.300 Residential property constructed

after 1949 and before 1978; initial and

periodic inspections.

36.302 EBL child.

Authority: 42 U.S.C. 3535(d) and 4822.

Subpart A—General Requirements

§ 36.1 Purpose and applicability.

(a) The requirements of this part are

promulgated to implement the LeadBased Paint Poisoning Prevention Act

(42 U.S.C. 4822 et seq.).

(b) Subpart A of this part applies to

all federally owned residential

properties and housing receiving

Federal assistance that is covered under

this part.

§ 36.2 Exemptions.

(a) This part does not apply to the

following:

(1) A residential property for which

construction was completed on or after

January 1, 1978;

(2) A single room occupancy (SRO)

dwelling unit;

(3) Housing for the elderly or a

residential property designated

exclusively for persons with disabilities,

except that if a child who is less than

6 years of age resides or is expected to

reside (the Department interprets this

phrase to include a pregnant woman),

the relevant requirements of this part

shall apply.

(b) A residential property undergoing

emergency repairs in response to a

natural disaster is exempt from the

relevant evaluation and reduction

requirements of this part that apply to

the property.

(c) The requirements of visual

evaluation, paint repair and cleanup do

not apply for a dwelling unit if

documentation is provided that a paint

inspection has been completed in

accordance with part 37, subpart C, of

this subtitle and indicates the absence of

lead-based paint in the dwelling unit

(i.e. lead-free). Results of additional

test(s) by a certified paint inspector may

be used to confirm or refute a prior

finding.

§ 36.3 Assumption of lead-based paint or

lead-based paint hazards or both.

In subparts where interim controls or

abatement are required, the presence of

lead-based paint or lead-based paint

hazards or both may be assumed

throughout the residential property. If

lead-based paint or lead-based paint

hazards or both are assumed, paint

inspection or risk assessment is not

required. The requirements for interim

controls or abatement or both must then

be conducted in accordance with part

37, subparts E and F, of this subtitle.

Interim controls and abatement are

completed when cleanup and clearance

are achieved in accordance with part 37,

subparts H and I, of this subtitle.

§ 36.4 Delay of evaluation, paint repair and

hazard reduction activities on exterior

surfaces.

Performance of an evaluation, paint

repair, lead-based paint hazard

reduction, or abatement of lead-based

paint on an exterior painted surface as

required under this part may be delayed

for a reasonable time when weather

conditions are unsuitable for

conventional construction activities.

§ 36.6 Prohibition against the use of paint

containing lead in federally owned housing

and housing receiving Federal assistance.

The use of paint containing more than

0.06 percent by weight of lead on any

interior or exterior surface in federally

owned housing or housing receiving

Federal assistance is prohibited. Where

appropriate, each Federal agency shall

include the prohibition in contracts,

grants, cooperative agreements,

insurance agreements, guaranty

agreements, trust agreements, or other

similar documents.

§ 36.8 Prohibited methods of paint

removal.

The following methods of paint

removal may not be used to remove

lead-based paint:

(a) Open flame burning or torching;

(b) Machine sanding or grinding

without a high-efficiency particulate air

(HEPA) exhaust control;

(c) Uncontained hydroblasting or high

pressure wash;

(d) Abrasive blasting or sandblasting

without HEPA exhaust control;

(e) Heat guns operating above 1100

degrees Fahrenheit;

(f) Chemical paint strippers

containing methylene chloride; or

(g) Dry scraping or dry sanding,

except scraping in conjunction with

heat guns or around electrical outlets or

when treating defective paint spots

totalling no more than 2 square feet in

any one interior room or space, or

totalling no more than 20 square feet on

exterior surfaces.

§ 36.10 Compliance with Federal laws and

authorities.

All lead-based paint activities

required in this part must be performed
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in accordance with applicable Federal

laws and authorities. Further, such

activities are subject to the applicable

environmental review requirements of

the National Environmental Policy Act

of 1969 (42 U.S.C. 4321 et seq.) and

other environmental laws and

authorities (See, e.g., laws and

authorities listed in § 50.4 of this

subtitle).

§ 36.12 Compliance with local codes and

regulations.

Nothing in this part is intended to

relieve an owner or tenant of federally

owned housing or housing receiving

Federal assistance from any

responsibility for compliance with State

or local laws, ordinances, codes, or

regulations governing lead-based paint.

With respect to housing receiving

Federal assistance, HUD does not

assume any responsibility for ensuring

compliance with such State or local

requirements.

§ 36.13 Minimum requirements.

This part sets out the Department’s

minimum requirements for the

evaluation and reduction of lead-based

paint and lead-based paint hazards in

federally owned housing and housing

receiving Federal assistance. Nothing in

this part is intended to preclude an

owner or tenant of such housing from

conducting additional evaluation and

reduction measures. For example, if the

Department requires interim controls,

an owner or tenant may choose to

implement abatement.

§ 36.14 Waivers.

(a) On a case-by-case basis and upon

determination of good cause, the

Secretary may, subject to statutory

limitations, waive any provision of this

part.

(b) In the case of jurisdictions which

banned the sale or use of lead-based

paint prior to 1978, the Secretary may

designate an earlier date for certain

provisions of this part.

§ 36.15 Noncompliance with the

requirements of this part and part 37.

A property owner who informs a

potential purchaser or tenant of possible

lead-based paint hazards in the dwelling

unit is not relieved of the requirements

to evaluate and reduce lead-based paint

or lead-based paint hazards in

accordance with this part and part 37 of

this subtitle. Further, noncompliance

with any of these requirements by a

recipient of Federal housing assistance

(e.g., owner, grantee or public or Indian

housing agency) may result in sanctions

by the Department corresponding to the

type of assistance provided, or

enforcement of these requirements by

any other means authorized by law.

§ 36.16 Definitions.

Abatement means any set of measures

designed to permanently eliminate leadbased paint or lead-based paint hazards.

For the purposes of this definition,

permanent means at least 20 years

effective life. Abatement includes:

(1) The removal of lead-based paint

and lead-contaminated dust, the

permanent enclosure or encapsulation

of lead-based paint, the replacement of

components or fixtures painted with

lead-based paint, and the removal or

permanent covering of leadcontaminated soil; and

(2) All preparation, cleanup, disposal,

and post abatement clearance testing

activities associated with such

measures.

Accessible (chewable) surface means

an interior or exterior surface painted

with lead-based paint that a young child

can mouth or chew.

Act means the Lead-Based Paint

Poisoning Prevention Act, 42 U.S.C.

4822 et seq.

Bare soil means soil not covered by

grass, sod, or other live ground covers,

or by wood chips, gravel, artificial turf,

or similar covering. Bare soil includes

sand.

Certified contractor means a risk

assessor, inspector, or abatement

supervisor who has been certified in

accordance with 40 CFR 745.226.

Clearance examination means an

activity conducted and a laboratory

analysis by a clearance examiner after

completion of lead-based paint hazard

reduction activities to determine that

the hazard controls are complete and

that levels of lead in settled dust or bare

soil or both meet the standards

established in part 37, subpart I, of this

subtitle. The clearance process includes

a visual evaluation and collection of

environmental samples.

Common area means a portion of a

residential property (except in a

condominium project) generally

accessible to occupants of all dwelling

units. Such an area may include, but is

not limited to, hallways, stairways,

laundry and recreational rooms,

playgrounds, community centers, onsite day care facilities, garages and

boundary fences.

Component means an element of a

dwelling unit or common area identified

by type and location, such as a bedroom

wall, an exterior window sill, a

baseboard in a living room, a kitchen

floor, an interior window sill in a

bathroom, a porch floor, stair treads in

a common stairwell, or an exterior wall.

Composite sampling means the

collection of more than one sample of

the same medium (e.g. dust, soil or

paint) for analysis as one sample.

Containment means the physical

measures taken to ensure that dust and

debris created or released during paint

repair or lead-based paint hazard

reduction are not spread, blown or

tracked from inside to outside of the

worksite.

Department means the United States

Department of Housing and Urban

Development (HUD).

Deteriorated paint means any interior

or exterior applied paint that is peeling,

chipping, chalking or cracking or any

paint located on an interior or exterior

surface or fixture that is otherwise

damaged or separated from the

substrate.

Dry sanding means sanding by

machine or by hand without moisture.

Dwelling unit means a house or an

apartment, occupied or intended for

occupancy, including attached

structures such as balconies, porches or

stoops.

Elevated blood lead level (EBL)

(requiring the evaluation of lead

hazards) means an excessive absorption

of lead that is a confirmed concentration

of lead in whole blood of 20 ug/dl

(micrograms of lead per deciliter of

whole blood) for a single venous test or

of 15–19 ug/dl in two consecutive

venous tests taken 3 to 4 months apart.

Emergency repair means a singlepurpose activity that must be performed

immediately to maintain the integrity

and habitability of a residential

property. Examples include repair of

roof damage or of utility or mechanical

equipment.

Encapsulation means the application

of any covering or coating that acts as

a barrier between the lead-based paint

and the environment and that relies, for

its durability, on adhesion between the

encapsulant and the painted surface,

and on the integrity of the existing

bonds between paint layers, and

between the paint and the substrate.

Enclosure means the use of rigid,

durable construction materials that are

mechanically fastened to the substrate

in order to act as a barrier between the

lead-based paint and the environment.

Evaluation means visual evaluation,

risk assessment, paint inspection, or a

combination of risk assessment and

paint inspection to determine the

presence of deteriorated paint, a leadbased paint hazard or lead-based paint.

Federal agency means the United

States or any executive department,

independent establishment,

administrative agency and

instrumentality of the United States,
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including a corporation in which all or

a substantial amount of the stock is

beneficially owned by the United States

or by any of the entities mentioned

above. The term ‘‘Federal agency’’

includes, but is not limited to, HUD,

Rural Housing and Community

Development Service (formerly Farmer’s

Home Administration), Resolution Trust

Corporation, General Services

Administration, Department of Defense,

Department of Veterans Affairs,

Department of the Interior and

Department of Transportation.

Federally owned property means

residential property owned or managed

by a Federal agency, or for which a

Federal agency is a trustee or

conservator.

Friction surface means an interior or

exterior surface that is subject to

abrasion or friction including, but not

limited to, certain window, floor, and

stair surfaces.

Grantee means any State or local

government, Indian tribe or insular area

that has been designated by HUD to

administer Federal housing assistance

under a program covered by part 36,

subparts B, L or M, except the HOME

program or the Flexible Subsidy-Capital

Improvement Loan Program (CILP).

Hazard reduction means measures

designed to reduce or eliminate human

exposure to lead-based paint hazards

through interim controls and abatement.

HEPA vacuum means a vacuum with

an attached high-efficiency particulate

air (HEPA) filter capable of removing

particles of 0.3 microns or larger from

air at 99.97 percent efficiency.

Housing for the elderly means

retirement communities or similar types

of housing reserved for households

composed of one or more persons 62

years of age or more at the time of initial

occupancy.

Housing receiving Federal assistance

means housing which is covered by an

application for mortgage insurance or

housing assistance payments under a

program administered by the Secretary,

or otherwise receives more than $5,000

in project-based assistance under a

Federal housing program.

HUD-owned property means

residential property to which HUD

acquired title, or any federally owned

residential property for which HUD has

disposition responsibility.

Impact surface means an interior or

exterior surface that is subject to damage

by repeated sudden force, such as

certain parts of door frames.

Indian tribes means any Indian tribe,

band, group or nation, including

Alaskan Indians, Aleuts and Eskimos,

and any Alaskan Native Village of the

United States that is considered an

eligible recipient under Title I of the

Indian Self-Determination and

Education Assistance Act (25 U.S.C.

450), or was considered an eligible

recipient under the State and Local

Fiscal Assistance Act of 1972 (31 U.S.C.

1221) before repeal of that Act. Eligible

recipients are determined by the Bureau

of Indian Affairs.

Inspection (See Paint inspection)

Insular areas means Guam, the

Northern Mariana Islands, the United

States Virgin Islands and American

Samoa.

Interim controls means a set of

measures designed to reduce

temporarily human exposure or likely

exposure to lead-based paint hazards.

Interim controls include repairs,

maintenance, painting, temporary

containment, specialized cleaning,

ongoing monitoring of lead-based paint

hazards or potential hazards, and the

establishment and operation of

management and resident education

programs.

Interior window sill means the portion

of the horizontal window ledge that

usually protrudes into the interior of the

room, adjacent to the window sash

when closed; often called the window

stool.

Lead-based paint means paint or

other surface coatings that contain lead

equal to or exceeding 1.0 milligram per

square centimeter, or 0.5 percent by

weight or 5,000 parts per million (ppm),

or another level that may be established

by the Secretary.

Lead-based paint hazard means any

condition that causes exposure to lead

from lead-contaminated dust, leadcontaminated soil, or lead-contaminated

paint that is deteriorated or present in

accessible surfaces, friction surfaces, or

impact surfaces, and that would result

in adverse human health effects.

Lead-contaminated dust means

surface dust that contains an amount of

lead exceeding the following levels,

which may pose a threat of adverse

health effects in pregnant women or

children of less than 6 years of age:

(1) Hard floors—100 ug/ft 2;

(2) Carpeted floors—100 ug/ft 2; and

(3) Interior window sills—500 ug/ft 2.

Lead-contaminated soil means bare

soil on residential property that

contains lead exceeding the following

levels, which may pose a threat of

adverse health effects in pregnant

women or children of less than 6 years

of age:

(1) Children’s play area—400 ug/g

(micrograms per gram); and

(2) All other areas—2,000 ug/g.

Limited paint inspection means a

paint inspection of only deteriorated

paint surfaces or those painted surfaces

likely to be disturbed or replaced during

rehabilitation activities.

Multifamily property means a

residence containing dwelling units for

five or more families.

Occupant means a person who

inhabits a dwelling unit.

Owner means a person, firm,

corporation, guardian, conservator,

receiver, trustee, executor, or other

judicial officer who, alone or with

others, owns, holds, or controls the

freehold or leasehold title or part of the

title to property, with or without

actually possessing it. The definition

includes a vendee who possesses the

title, but does not include a mortgagee

or an owner of a reversionary interest

under a ground rent lease.

Paint inspection means a surface-bysurface investigation of all intact and

nonintact interior and exterior painted

surfaces for lead-based paint using an

approved x-ray fluorescence analyzer,

atomic absorption spectroscopy, or

comparable approved sampling or

testing technique, and includes the

provision of a report explaining the

results of the investigation.

Paint removal means a method of

abatement that entails removing leadbased paint from surfaces.

Painted surface to be disturbed means

paint that is scraped, sanded, cut,

penetrated or otherwise affected by

rehabilitation work in a manner that

could potentially create a lead-based

paint hazard by generating dust, fumes,

paint chips, or exposed surfaces.

Participating jurisdiction means any

State or local government, Indian tribe

or insular area that has been designated

by HUD to administer a HOME program.

Project-based assistance means

Federal assistance that is tied to a

residential property with a specific

location and remains with that

particular location throughout the term

of the assistance.

Protective covering means a durable

material, such as polyethylene or its

equivalent, which protects from leadcontaminated dust, debris or abrasion.

Random sample means a sample

drawn from a population (e.g. housing

units in a multifamily property) so that

each member of the population has an

equal chance to be drawn.

Recognized laboratory means any

environmental laboratory recognized by

EPA under the National Lead Laboratory

Accreditation Program as being capable

of performing an analysis for lead

compounds in paint, soil or dust.

Rehabilitation means the

improvement of an existing structure

through alterations, incidental additions

or enhancements. Rehabilitation

includes repairs necessary to correct the
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results of deferred maintenance, the

replacement of principal fixtures and

components, improvements to increase

the efficient use of energy, and

installation of security devices.

Replacement means a strategy of

abatement that entails the removal of

building components that have surfaces

coated with lead-based paint such as

windows, doors, and trim, and the

installation of new components free of

lead-based paint.

Residential property means a dwelling

unit, common areas and any

surrounding land belonging to an owner

and accessible to occupants.

Risk assessment means an on-site

investigation to determine and report

the existence, nature, severity, and

location of lead-based paint hazards in

residential properties, including:

(1) Information gathered on the age

and history of the housing and

occupancy by children under age 6;

(2) Visual assessment;

(3) Limited wipe sampling or other

environmental sampling techniques;

(4) Identification of hazard reduction

options; and

(5) Provision of a report explaining

the results of the investigation.

Room equivalent means an

identifiable part of a residence such as

a room, a house exterior side or area, a

hallway, stairway or a playground,

identified for the purpose of conducting

a paint inspection.

Secretary means the Secretary of the

U.S. Department of Housing and Urban

Development.

Similar dwelling units means

dwelling units that were built at the

same time, have a common maintenance

and management history, have a

common painting history, and are of

similar construction.

Single family property means a

residence containing dwelling units for

one to four families.

Single room occupancy (SRO) means

a 0-bedroom dwelling unit for

occupancy by a single individual which

may contain food preparation or

sanitary facilities or both, and is located

within a residential property.

Single-surface sampling means the

collection of one sample from each

sampling location or individual

component with the intention that each

sample will be analyzed individually.

Substrate means the material directly

beneath the painted surface out of

which the components are constructed,

including wood, drywall, plaster,

concrete, brick or metal.

Targeted sample means a sample of

dwelling units selected from a

multifamily property using information

supplied by the owner. The units are

selected to have the greatest probability

of having lead-based paint hazards.

Tenant means the individual named

on a lease or rental agreement to lease

or rent a dwelling unit.

Visual evaluation means to look at

interior and exterior painted surfaces for

signs of deterioration.

Wet sanding or scraping means a

process of removing loose paint in

which both the surface to be scraped or

sanded and the scraping or sanding tool

are kept wet with water to minimize the

dispersal of paint chips and airborne

dust.

Window sill means the portion of the

horizontal window ledge that protrudes

into the interior of the room, adjacent to

the window sash when the window is

closed. The window sill is sometimes

referred to as the window stool.

Window trough means the area

between the interior window sill (stool)

and the storm window frame. If there is

no storm window, the window trough is

the area that receives both the upper

and lower window sashes when they are

both lowered. The window trough is

sometimes referred to as the window

well.

Window well (See Window trough)

Worksite means an interior or exterior

area where paint repair or a lead-based

paint hazard reduction activity takes

place. There may be more than one

worksite in a dwelling unit or at a

residential property.

XRF reading means the measurement

of lead levels in paint with a portable Xray fluorescence (XRF) instrument. The

measurement is always in mg/cm2

(milligrams per square centimeter).

Subpart B—State Procedures

§ 36.20 Purpose and applicability.

The purpose of this subpart B is to

allow States, Indian tribes and insular

areas to establish alternative procedures

to those required under subparts L and

M of this part, to eliminate as far as

practicable lead-based paint hazards in

housing receiving Federal assistance, or

operating a Federal housing assistance

program, established by the Secretary. A

State, Indian tribe or insular area shall

meet the general eligibility criteria set

out in § 36.22.

§ 36.22 General eligibility criteria.

(a) A State, Indian tribe or insular area

shall have in place a certification

program for individuals and firms

engaged in lead-based paint activities

that is approved by EPA pursuant to

sections 402 and 404 of Title IV of the

Toxic Substances Control Act (TSCA),

(15 U.S.C. 2682 and 2684).

(b) A State, Indian tribe or insular area

shall have in place written evaluation

and hazard reduction procedures that

have been approved by the Secretary

prior to implementation of authority

under this subpart, and when such

procedures are substantially altered by

such entity.

(c) A unit of general local government

located in a State that has HUDapproved alternate procedures in

accordance with this section may adopt

those State procedures for all or part of

the programs assisted under subparts L

and M of this part.

§ 36.24 General procedures.

Alternative lead-based paint hazard

evaluation and reduction procedures

developed by a State, Indian tribe or

insular area must include the following

minimum requirements:

(a) Lead hazard information

pamphlet. The State, Indian tribe or

insular area shall ensure that the lead

hazard information pamphlet developed

by the Environmental Protection

Agency, pursuant to section 406(a) of

the Toxic Substances Control Act, 15

U.S.C. 2686 is provided to the tenant,

owner-occupant or purchaser of housing

receiving Federal assistance under this

subpart.

(b) Notice of evaluation, paint repair

and hazard reduction activities. In cases

where evaluation, paint repair or hazard

reduction activities are undertaken,

each owner shall provide a notice to

tenants. The notice must include:

(1) A summary of the nature, scope

and results of the evaluation, paint

repair or hazard reduction activities;

(2) Information on how to obtain

access to the actual evaluation report;

and

(3) Available information on the

location of any remaining lead-based

paint on a surface-by-surface basis after

conducting hazard reduction.

(c) Occupant protection. Occupants

may not be permitted to enter the

interior worksite during lead-based

paint hazard reduction activities or

paint repair. Occupant re-entry into the

worksite is permitted only after the

hazard reduction work is completed and

clearance has been achieved, or after

paint repair and cleanup are completed.

§ 36.26 Specific procedures.

The specific procedures for reducing

lead-based paint hazards in housing

covered under this subpart B are to be

developed at the discretion of the State,

Indian tribe or insular area, but must

include the following minimum

requirements:

(a) Clearance standards. When

clearance is required under paragraph

(b) of this section the following

standards shall apply:
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(1) Dust testing. Levels of lead in dust

wipe samples may not exceed the

following standards:

(i) Hard floors—100 ug/ft2;

(ii) Carpeted floors—100 ug/ft2;

(iii) Interior window sills—500 ug/ft2.

(2) Soil testing. Lead levels in samples

of bare soil may not exceed the

following standards:

(i) Children’s play area—400 ug/g

(micrograms per gram);

(ii) All other areas—2,000 ug/g.

(3) Visual evaluation. A visual

evaluation of all painted surfaces in

order to identify deteriorated paint.

(b) Rehabilitation. A grantee or

participating jurisdiction receiving HUD

rehabilitation funds for a residential

property constructed before 1978 shall

require the following:

(1) Housing receiving an average of

$25,000 or less per unit in HUD funds

for rehabilitation. (i) A paint inspection

of each surface to be disturbed by

rehabilitation or which may be replaced

during rehabilitation.

(ii) A risk assessment in the units

receiving HUD rehabilitation assistance

and in associated common areas and

exterior surfaces.

(iii) Hazard reduction activities to

reduce identified lead-based paint

hazards must be conducted under the

supervision of a certified abatement

contractor. Hazard reduction is

completed when the clearance

standards set out in paragraph (a) of this

section are achieved.

(iv) States may adopt less stringent

procedures for addressing potential

lead-based paint hazards when the

average amount of HUD funds for

rehabilitation is less than $5,000 per

unit.

(2) Housing receiving an average of

more than $25,000 per unit in HUD

funds for rehabilitation. (i) A paint

inspection of each surface to be

disturbed by rehabilitation or which

may be replaced during rehabilitation.

(ii) A risk assessment in the units

receiving HUD rehabilitation assistance

and in associated common areas and

exterior surfaces.

(iii) Abatement of identified leadbased paint hazards must be conducted

in the course of rehabilitation.

Abatement is completed when the

clearance standards set out in paragraph

(a) of this section are achieved.

(c) CPD non-rehabilitation programs.

A grantee or participating jurisdiction

receiving Federal assistance under a

HUD program described in subpart M of

this part for a residential property

constructed before 1978 shall require

the following:

(1) Housing constructed before 1950.

(i) Dust testing;

(ii) Paint repair of deteriorated paint

and cleanup of the worksite; and

(iii) Cleanup of surfaces with high

levels of leaded dust, if dust samples

above the standards set out in paragraph

(a)(1) of this section are identified.

(2) Housing constructed after 1949

and before 1978. Paint repair of

deteriorated paint and cleanup of the

worksite.

Subpart C—Disposition of Residential

Property Owned by Federal Agencies

Other Than HUD

§ 36.40 Purpose and applicability.

The purpose of this subpart C is to

establish procedures to eliminate as far

as practicable lead-based paint hazards

prior to the disposition (i.e. sale) of a

residential property that is owned by a

Federal agency other than HUD.

§ 36.42 Exemption.

In the absence of appropriations

sufficient to cover the costs of §§ 36.44,

36.46 and 36.48 these requirements

shall not apply to the Federal agency.

§ 36.44 Disposition of residential property

constructed before 1960.

(a) Hazard evaluation. The Federal

agency shall conduct a risk assessment

and a paint inspection in accordance

with part 37, subparts B and C, of this

subtitle. Hazard evaluation must be

completed according to a schedule

determined by the Federal agency.

(b) Abatement of lead-based paint

hazards. The Federal agency shall

conduct abatement of all identified leadbased paint hazards in accordance with

part 37, subpart F, of this subtitle.

Abatement is completed when cleanup

and clearance are achieved in

accordance with part 37, subparts H and

I, of this subtitle. In the case of a sale

to a non-owner occupant purchaser,

abatement may be made a condition of

sale with sufficient funds escrowed.

§ 36.46 Disposition of residential property

constructed after 1959 and before 1978.

(a) Exemption. The Secretary may

waive the paint inspection and risk

assessment requirements of this section

if documentation is provided to the

Secretary by the Federal agency that a

risk assessment, performed by a

certified risk assessor, shows the

absence of lead-based paint hazards, or

that a paint inspection, performed by a

certified paint inspector, shows an

absence of lead-based paint. In addition,

the Secretary may waive the

requirements of this section if a

clearance test conducted by a certified

risk assessor has indicated the absence

of lead-based paint hazards.

(b) Hazard evaluation. The Federal

agency shall conduct a risk assessment

and a paint inspection in accordance

with part 37, subparts B and C, of this

subtitle. Hazard evaluation must be

completed according to a schedule

determined by the Federal agency.

§ 36.48 Other required practices.

(a) Required practices. If abatement of

lead-based paint hazards is conducted

the following practices are required:

(1) Occupant protection and worksite

preparation in accordance with part 37,

subpart G, of this subtitle.

(2) Monitoring must be conducted in

accordance with part 37, subpart J, of

this subtitle if the Federal agency retains

ownership of the property for more than

1 year.

(b) Control of new hazards. If

monitoring identifies new lead-based

paint hazards, the Federal agency shall

conduct additional abatement activities

in accordance with part 37, subpart F,

of this subtitle. Abatement is completed

when cleanup and clearance are

achieved in accordance with part 37,

subparts H and I, of this subtitle.

Subpart D—Project-Based Assistance

Provided by a Federal Agency Other

Than HUD

§ 36.60 Purpose and applicability.

The purpose of this subpart D is to

establish procedures to eliminate as far

as practicable lead-based paint hazards

in a residential property that receives

more than $5,000 in project-based

assistance under a program

administered by a Federal agency other

than HUD.

§ 36.62 Lead hazard information pamphlet.

If a tenant resides in a residential

property prior to the effective date of the

regulation implementing section 1018 of

Title X of the Housing and Community

Development Act of 1992 (42 U.S.C.

4852d), and the property receives

Federal project-based assistance, the

owner shall provide the lead hazard

information pamphlet developed by the

Environmental Protection Agency,

pursuant to section 406(a) of the Toxic

Substances Control Act, 15 U.S.C. 2686

to the tenant.

§ 36.64 Notice of evaluation, paint repair

and hazard reduction activities.

In cases where evaluation, paint

repair or hazard reduction is

undertaken, each owner shall provide a

notice to tenants. The notice must

include:

(a) A summary of the nature, scope

and results of the evaluation, paint

repair or hazard reduction activities;
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(b) Information on how to obtain

access to the actual evaluation report;

and

(c) Available information on the

location of any remaining lead-based

paint on a surface-by-surface basis after

conducting hazard reduction.

§ 36.66 Risk assessments.

Each owner shall complete a risk

assessment in accordance with part 37,

subpart B, of this subtitle. Each risk

assessment must be completed no later

than the schedule established by the

Federal agency.

§ 36.68 Hazard reduction.

Each owner shall conduct hazard

reduction activities consistent with the

findings of the risk assessment report.

Hazard reduction must be conducted in

accordance with part 37, subparts E and

F, of this subtitle and is completed

when cleanup and clearance are

achieved in accordance with part 37,

subparts H and I, of this subtitle.

§ 36.70 EBL child.

Risk assessment and hazard

reduction. If a child less than 6 years of

age living in a federally assisted

dwelling unit has an EBL, the owner

shall immediately conduct a risk

assessment in accordance with part 37,

subpart B, of this subtitle. Reduction of

identified lead-based paint hazards

must be conducted in accordance with

part 37, subparts E and F, of this subtitle

and is completed when cleanup and

clearance are achieved in accordance

with part 37, subparts H and I, of this

subtitle. The Federal agency shall

establish a schedule for completing risk

assessments and hazard reduction when

an EBL child is identified.

§ 36.72 Other required practices.

(a) Required practices. If hazard

reduction is conducted, the following

practices are required:

(1) Occupant protection and worksite

preparation in accordance with part 37,

subpart G, of this subtitle.

(2) Monitoring in accordance with

part 37, subpart J, of this subtitle.

(b) Control of new hazards. If

monitoring identifies new lead-based

paint hazards, each owner shall conduct

additional hazard reduction activities in

accordance with part 37, subparts E and

F, of this subtitle. Hazard reduction is

completed when cleanup and clearance

are achieved in accordance with part 37,

subparts H and I, of this subtitle.

Subpart E—Single Family Insured

Property

§ 36.80 Purpose and applicability.

The purpose of this subpart E is to

establish procedures to eliminate as far

as practicable lead-based paint hazards

in a single family property that receives

mortgage insurance under a program

administered by the Secretary,

including One- to Four-Family Home

Mortgage Insurance (12 U.S.C. 1709 (b)

and (i)); Rehabilitation Mortgage

Insurance (12 U.S.C. 1709(k));

Homeownership Assistance for Lowand Moderate-Income Families (12

U.S.C. 1715(d)(2)); Homes for Service

Members (12 U.S.C. 1715m); Housing in

Declining Neighborhoods (12 U.S.C.

1715n(e)); Condominium Housing (12

U.S.C. 1715y); Special Credit Risks (12

U.S.C. 1715z–2); Housing in Military

Impacted Areas (12 U.S.C. 1715z–3(c));

Single Family Home Mortgage

Coinsurance (12 U.S.C. 1715z–9);

Graduated Payment Mortgages (12

U.S.C. 1715z–10); Adjustable Rate

Mortgages (ARMs) (12 U.S.C. 1715z–16);

and Home Equity Conversion Mortgage

(HECM) (12 U.S.C. 1715z–20).

§ 36.82 Exemptions.

(a) Applications for insurance in

connection with a refinancing

transaction are excluded from the

coverage of this subpart E if an appraisal

is not required under the applicable

procedures established by the Secretary.

(b) Limited paint inspection. The

requirements of §§ 36.86 and 36.88 do

not apply for a specific deteriorated

paint surface on which a paint

inspection has been completed in

accordance with part 37, subparts B or

C, of this subtitle and indicates the

absence of lead-based paint (i.e. leadfree). To be exempt from §§ 36.86 and

36.88, documentation of the absence of

lead-based paint on each deteriorated

surface must be provided to the fee

panel appraiser or direct endorsement

appraiser. Results of additional test(s)

by a certified paint inspector may be

used to confirm or refute a prior finding.

§ 36.84 Lead hazard information pamphlet.

When an appraisal is required for

refinancing under a program described

in § 36.80, each mortgagee shall provide

each prospective occupant residing in

the residential property prior to the

effective date of the regulation

implementing section 1018 of Title X of

the Housing and Community

Development Act of 1992, with the lead

hazard information pamphlet developed

by the Environmental Protection

Agency, pursuant to section 406(a) of

the Toxic Substances Control Act, 15

U.S.C. 2686.

§ 36.86 Visual evaluation of painted

surfaces.

The mortgagee must require the

appraiser to conduct a visual evaluation

of all painted surfaces in order to

identify deteriorated paint.

§ 36.88 Paint repair and cleanup.

(a) Paint repair and cleanup. (1) Each

deteriorated paint surface must be

repaired, and cleanup of the worksite

must be conducted, in accordance with

part 37, subpart D, of this subtitle.

(2) The commitment or other approval

document must contain the requirement

that all deteriorated paint surfaces must

be repaired and cleanup of the worksite

conducted before the mortgage is

endorsed for insurance.

(b) Escrow procedure. An escrow fund

may be established in order to conduct

paint repair and cleanup after the

mortgage is endorsed for insurance only

in the following three cases:

(1) For mortgage insurance to finance

rehabilitation work under 12 U.S.C.

1709(k), provided that paint repair and

cleanup are conducted in conjunction

with the rehabilitation work and will be

completed as expeditiously as possible;

or

(2) For HECM mortgage insurance,

provided that the paint repair and

cleanup costs do not exceed 15 percent

of the HECM maximum claim amount

and the payment model includes a

provision for funds reserved for postendorsement repairs. Paint repair and

cleanup must be completed as

expeditiously as possible; or

(3) When weather conditions prevent

the completion of paint repair and

cleanup on exterior surfaces, provided

that paint repair and cleanup are

completed as soon as practicable.

Subpart F—Disposition of HUD-Owned

Single Family Property (With Sufficient

Appropriations)

§ 36.100 Purpose and applicability.

The purpose of this subpart F is to

establish procedures to eliminate as far

as practicable lead-based paint hazards

prior to the disposition (i.e. sale) of a

single family property that is owned by

HUD. The Secretary shall determine:

(a) If there are sufficient

appropriations to cover the costs of

§§ 36.104–36.108; and

(b) When the procedures in these

sections will take effect.

§ 36.102 Exemptions.

(a) In the absence of appropriations

sufficient to cover the costs of §§ 36.104

through 36.108 as determined by the
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Secretary, these requirements shall not

apply to the Department. Instead, the

Department shall, at a minimum, follow

the requirements of subpart G of this

part.

(b) A dwelling unit that has sustained

extensive damage requiring major

rehabilitation or demolition is exempt

from the requirements of §§ 36.104

through 36.108.

§ 36.104 Disposition of single family

property constructed before 1960.

(a) Hazard evaluation. Before the

closing of the sale of the property, the

Department shall conduct a risk

assessment and a paint inspection in

accordance with part 37, subparts B and

C, of this subtitle.

(b) Abatement of lead-based paint

hazards. Before the closing of the sale

of the property, the Department shall

conduct abatement of all identified leadbased paint hazards in accordance with

part 37, subpart F, of this subtitle.

Abatement is completed when cleanup

and clearance are achieved in

accordance with part 37, subparts H and

I, of this subtitle. In the case of a sale

to a non-occupant purchaser, abatement

may be made a condition of sale with

sufficient funds escrowed. In the case of

a HUD-owned property leased to a unit

of government or a nonprofit

organization under a program

administered by the Secretary, the

Department shall make abatement a

condition of the lease agreement and the

lessor shall certify acceptance of the

abatement responsibility. Occupancy is

not permitted in either case until all

required abatement is complete.

§ 36.106 Disposition of single family

property constructed after 1959 and before

1978.

(a) Exemption. The Secretary may

waive the paint inspection and risk

assessment requirements of this section

if documentation is provided to the

Secretary that a risk assessment,

performed by a certified risk assessor,

shows an absence of lead-based paint

hazards, or that a paint inspection,

performed by a certified paint inspector,

shows an absence of lead-based paint. In

addition, the Secretary may waive the

requirements of this section if a

clearance test conducted by a certified

risk assessor has indicated the absence

of lead-based paint hazards.

(b) Hazard evaluation. Before the

closing of the sale of the property, the

Department shall conduct a risk

assessment and a paint inspection in

accordance with part 37, subparts B and

C, of this subtitle.

§ 36.108 Other required practices.

(a) Required practices. If abatement of

lead-based paint hazards is conducted,

the following practices are required:

(1) Occupant protection and worksite

preparation in accordance with part 37,

subpart G, of this subtitle.

(2) Monitoring must be conducted in

accordance with part 37, subpart J, of

this subtitle if the Department retains

ownership of the property for more than

1 year. In the case of a HUD-owned

property leased to a unit of government

or a nonprofit organization under a

program administered by the Secretary,

the Department shall make monitoring a

condition of the lease agreement and the

lessor shall certify acceptance of the

monitoring responsibility.

(b) Control of new hazards. If

monitoring identifies new lead-based

paint hazards, the Department or the

lessor shall conduct additional

abatement activities in accordance with

part 37, subpart F, of this subtitle.

Abatement is completed when cleanup

and clearance are achieved in

accordance with part 37, subparts H and

I, of this subtitle.

Subpart G—Disposition of HUD-Owned

Single Family Property (Without

Sufficient Appropriations)

§ 36.120 Purpose and applicability.

In the absence of appropriations

sufficient to cover the costs of subpart

F of this part as determined by the

Secretary, the purpose of this subpart G

is to establish alternative procedures to

eliminate as far as practicable leadbased paint hazards prior to the

disposition (i.e. sale) of a single family

property that is owned by HUD.

§ 36.122 Exemptions.

(a) Limited paint inspection. The

Department shall be exempt from the

requirements of §§ 36.124 through

36.128 for a specific deteriorated paint

surface if documentation exists that a

paint inspection has been completed in

accordance with part 37, subparts B or

C, of this subtitle and indicates the

absence of lead-based paint on each

surface to be exempt (i.e. lead-free).

Results of additional test(s) by a

certified paint inspector may be used to

confirm or refute a prior finding.

(b) Extensive damage. A dwelling unit

that has sustained extensive damage

requiring major rehabilitation or

demolition is exempt from the

requirements of §§ 36.124 through

36.128.

§ 36.124 Visual evaluation of painted

surfaces.

Before the closing of the sale of the

property, the Department shall conduct

a visual evaluation of all painted

surfaces in order to identify deteriorated

paint.

§ 36.126 Paint repair and cleanup.

(a) Paint repair and cleanup. Before

the closing of the sale of the property,

the Department shall repair each

deteriorated paint surface, and conduct

cleanup of the worksite, in accordance

with part 37, subpart D, of this subtitle.

(b) Repainting exemption. The

Department may be exempt from the

repainting requirements described in

§ 37.50(f) of this subtitle if weather

conditions make repainting infeasible or

if the property is scheduled for major

rehabilitation or demolition. If the

Department does not repaint a property

because of weather conditions, major

rehabilitation, or demolition, the

possible existence of a lead-based paint

hazard must be disclosed to the

potential purchaser before the closing of

the sale of the property.

(c) Condition of sale or lease. In the

case of a sale to a non-occupant

purchaser, paint repair and cleanup may

be made a condition of sale with

sufficient sale funds escrowed. In the

case of a HUD-owned property leased to

a unit of government or a nonprofit

organization under a program

administered by the Secretary, the

Department shall make paint repair and

cleanup a condition of the lease

agreement and the lessor shall certify

acceptance of the abatement

responsibility.

(d) Occupancy. In the case of a sale

or lease, occupancy is not permitted

until all required paint repair and

cleanup is complete.

§ 36.128 Monitoring.

If the Department retains ownership

of the property for more than 1 year,

monitoring must be conducted in

accordance with part 37, subpart J, of

this subtitle. In the case of a HUDowned property leased to a unit of

government or a nonprofit organization

under a program administered by the

Secretary, the Department shall make

monitoring a condition of the lease

agreement and the lessor shall certify

acceptance of the monitoring

responsibility. If monitoring identifies

new deteriorated paint surfaces, the

Department or the lessor shall conduct

paint repair and cleanup in accordance

with part 37, subpart D, of this subtitle.

Subpart H—Multifamily Insured

Property

§ 36.140 Purpose and applicability.

The purpose of this subpart H is to

establish procedures to eliminate as far
29212 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

as practicable lead-based paint hazards

in a multifamily property that receives

mortgage insurance under a program

administered by the Secretary,

including Multifamily Rental Housing

(12 U.S.C. 1713); Cooperative Housing

(12 U.S.C. 1715e); Mortgage and Major

Home Improvement Loan Insurance for

Urban Renewal Areas (12 U.S.C. 1715k

(a) and (h)); Multifamily Rental Housing

for Moderate-Income Families (12

U.S.C. 1715(l)(d) (3) and (4)); Existing

Multifamily Rental Housing (12 U.S.C.

1715n(f)); Mortgage Insurance for

Housing for the Elderly (12 U.S.C.

1715v); Condominium Housing (12

U.S.C. 1715y); Title II of the Housing

and Community Development Act of

1987 (Emergency Low Income Housing

Preservation Act of 1987; 12 U.S.C.

1715l note); section 601 of the CranstonGonzalez National Affordable Housing

Act (Low Income Housing Preservation

and Resident Ownership Act of 1990; 12

U.S.C. 1715l note); and Supplemental

Loan for Project Mortgage Insurance (12

U.S.C. 1715n).

§ 36.142 Exemptions.

(a) Applications for insurance in

connection with a refinancing

transaction are excluded from the

coverage of this subpart H if an

appraisal is not required under the

applicable procedures established by

the Secretary.

(b) Limited paint inspection. The

requirements of §§ 36.146 and 36.148 do

not apply for a specific deteriorated

paint surface on which a paint

inspection has been completed in

accordance with part 37, subparts B or

C, of this subtitle, and indicates the

absence of lead-based paint (i.e. leadfree). To be exempt from §§ 36.146 and

36.148, documentation of the absence of

lead-based paint on each deteriorated

paint surface must be provided to the

Department’s and the sponsor’s

architect. Results of additional test(s) by

a certified paint inspector may be used

to confirm or refute a prior finding.

§ 36.144 Lead hazard information

pamphlet.

When an appraisal is required for

refinancing under a program described

in § 36.140, each mortgagee shall

provide each prospective occupant

residing in the residential property prior

to the effective date of the regulation

implementing section 1018 of Title X of

the Housing and Community

Development Act of 1992, with the lead

hazard information pamphlet developed

by the Environmental Protection

Agency, pursuant to section 406(a) of

the Toxic Substances Control Act, 15

U.S.C. 2686.

§ 36.146 Visual evaluation of painted

surfaces.

Before the issuance of the firm

commitment, the Department’s or the

sponsor’s architect shall conduct a

visual evaluation of all painted surfaces

in order to identify deteriorated paint.

§ 36.148 Paint repair and cleanup.

Before the issuance of the firm

commitment, each deteriorated paint

surface must be repaired, and cleanup of

the worksite conducted, in accordance

with part 37, subpart D, of this subtitle.

Subpart I—Project-Based Assistance

§ 36.160 Purpose and applicability.

(a) Purpose. The purpose of this

subpart I is to establish procedures to

eliminate as far as practicable leadbased paint hazards in a multifamily

property receiving more than $5,000 in

project-based assistance under a

program administered by the Secretary

including the Rent Supplement

Payment Program (12 U.S.C. 1701s);

Supportive Housing for the Elderly (12

U.S.C. 1701q); Rental Assistance

Payments Program (12 U.S.C. 1715z–1);

Supportive Housing for Persons with

Disabilities (42 U.S.C. 8013); Direct

Loans for Housing for the Elderly or

Handicapped (12 U.S.C. 1701q); Section

8 Housing Assistance Payments Program

for New Construction, Section 8

Housing Assistance Payments Program

for Substantial Rehabilitation, Section 8

Housing Assistance Payment Program

for State Housing Agencies, Section 8

Housing Assistance Payment Program

for Section 515 Rural Rental Housing

Projects, and Section 8 Housing

Assistance Payments Program—Special

Allocations (LMSA & Property

Disposition Set Aside); Section 8

Moderate Rehabilitation Program (42

U.S.C. 1437f); Project-Based Certificate

Program (42 U.S.C. 1437f);

Homeownership of Multifamily Units

(HOPE 2) (42 U.S.C. 12871–12880);

Shelter Plus Care Project- and SponsorBased Rental Assistance (42 U.S.C.

11403 et seq.); and Assisted Housing

Drug Elimination Program (42 U.S.C.

11901 note).

(b) Applicability. (1) For a multifamily

property receiving more than the $5,000

per unit annual initial contract rent

threshold in project-based assistance

under a program described in

§ 36.160(a), the requirements of

§§ 36.162–36.172 shall apply.

(2) For a multifamily property that

receives less than the $5,000 per unit

annual initial contract rent threshold in

project-based assistance under a

program described in § 36.160(a), or a

single family property that receives

project-based assistance through the

Department’s Section 8 Moderate

Rehabilitation or Project-Based

Certificate programs, the requirements

of §§ 36.162 through 36.172 do not

apply; and the requirements set out in

§§ 36.292 through 36.302 shall apply.

For a multifamily property receiving

less than the $5,000 per unit in projectbased assistance, the owner shall

implement the requirements specified

for the housing authority in §§ 36.292

through 36.302.

§ 36.162 Lead hazard information

pamphlet.

If a tenant resides in a residential

property prior to the effective date of the

regulation implementing section 1018 of

Title X of the Housing and Community

Development Act of 1992, and the

property receives project-based

assistance as described in § 36.160, the

owner shall provide the lead hazard

information pamphlet developed by the

Environmental Protection Agency,

pursuant to section 406(a) of the Toxic

Substances Control Act, 15 U.S.C. 2686

to the tenant.

§ 36.164 Notice of evaluation, paint repair

and hazard reduction activities.

(a) Notice of evaluation. In cases

where evaluation is undertaken, each

owner shall provide a notice to tenants.

(1) Notice of the evaluation must

include:

(i) A summary of the nature, scope

and results of the evaluation; and

(ii) A contact name and phone

number for more information, or to

obtain access to the actual evaluation

report.

(2) The owner shall post or distribute

the notice within 15 calendar days of

receiving the evaluation report.

(b) Notice of paint repair and hazard

reduction. In cases where paint repair or

hazard reduction is undertaken, each

owner shall provide a notice to tenants.

(1) Notice of paint repair or hazard

reduction must include:

(i) A summary of the nature, scope

and results of the paint repair or hazard

reduction;

(ii) A contact name and phone

number for more information; and

(iii) Available information on the

location of any remaining lead-based

paint on a surface-by-surface basis.

(2) The owner shall post or distribute

the notice within 15 calendar days of

completing paint repair or hazard

reduction.

(3) The owner shall periodically

update the notice, based on any

reevaluation of the residential property

and as additional paint repair or hazard

reduction work is conducted.
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29213

(c) Availability of notices of

evaluation, paint repair and hazard

reduction. (1) The notices of evaluation,

paint repair or hazard reduction must be

of a size and type that is easily read by

tenants.

(2) To the extent practicable, each

notice shall be made available, upon

request, in an accessible format to

persons with disabilities (i.e. braille,

large type, computer disk, audio tape).

(3) To the extent practicable, each

notice shall be provided in the tenant’s

primary language.

(4) The owner shall provide the

notices to the tenants by:

(i) Posting it in a centrally located,

easily accessible common area; or

(ii) Distributing it to each occupied

dwelling unit.

§ 36.166 Risk assessments.

(a) Risk assessments prior to the

agreement period. Prior to the

agreement to enter into a housing

assistance payment (HAP) contract or

the project rental assistance contract

(PRAC), each owner shall complete a

risk assessment in accordance with part

37, subpart B, of this subtitle. If the risk

assessment identifies lead-based paint

hazards, the owner shall also submit a

plan in accordance with § 36.168 prior

to execution of the Agreement to Enter

into a HAP Contract or the PRAC

contract.

(b) Risk assessment during the

housing assistance payment contract

period. If a risk assessment and a hazard

reduction plan were not completed

prior to the agreement period described

in (a) of this section, each owner shall

complete a risk assessment in

accordance with part 37, subpart B, of

this subtitle. If the risk assessment

identifies lead-based paint hazards, the

owner shall submit a plan in accordance

with § 36.168. Each risk assessment

must be completed no later than the

following schedule or a schedule

otherwise determined by the Secretary:

(1) Risk assessments must be

completed on or before (2 years after the

effective date of this rule) in a

multifamily property constructed before

1960.

(2) Risk assessments must be

completed on or before (4 years after the

effective date of this rule) in a

multifamily property constructed after

1959 and before 1965.

(3) Risk assessments must be

completed on or before (6 years after the

effective date of this rule) in a

multifamily property constructed after

1964 and before 1971.

(4) Risk assessments must be

completed on or before (8 years after the

effective date of this rule) in a

multifamily property constructed after

1970 and before 1978.

§ 36.168 Hazard reduction plan.

If a risk assessment report identifies

lead-based paint hazards, the owner

shall develop an hazard reduction plan

(hereafter, ‘‘the plan’’).

(a) Contents of the plan. The plan

must propose hazard reduction

activities consistent with the findings of

the risk assessment report. Hazard

reduction must be conducted in

accordance with part 37, subparts E and

F, of this subtitle, and are completed

when cleanup and clearance is achieved

in accordance with part 37, subparts H

and I, of this subtitle. The plan must

include the following:

(1) A summary of the nature, scope

and results of the risk assessment,

including the acceptable hazard

reduction methods identified by the risk

assessor;

(2) A detailed description of the

nature and scope of the hazard

reduction to be conducted;

(3) A description of how the

requirements of § 36.172 will be

conducted;

(4) A schedule for completing initial

hazard reduction;

(5) An estimated cost of conducting

the initial hazard reduction activities,

including costs for clean-up, clearance,

and monitoring; and

(6) Proof that the owner has sufficient

funds to complete the initial hazard

reduction activities proposed in the

plan, except that such proof is not

required for properties receiving

assistance under the Section 8 ProjectBased Certificate program.

(b) Owner action. (1) If no rent

adjustment is necessary to implement

the plan, the owner shall certify to the

Department that the contents of the plan

are consistent with the requirements of

part 37, subparts E, F, H, and I, of this

subtitle. The certification must be

submitted to the Department and a copy

must be provided to any Contract

Administrator or HA no later than 120

days after completion of the risk

assessment, unless otherwise permitted

by the Department.

(2) If a rent adjustment is necessary to

implement the hazard reduction plan,

the owner shall submit the plan to the

Department and a copy must be

provided to any Contract Administrator

or HA in conjunction with the next rent

adjustment request, but no later than

120 days after completion of the risk

assessment, unless otherwise permitted

by the Department. This requirement

does not apply to properties receiving

assistance under the Section 8 ProjectBased Certificate program.

(c) HUD approval. The Department

shall review each plan submitted by an

owner in conjunction with a rent

adjustment request. The Department

may recommend alternative activities

for reducing lead-based paint hazards if

the hazard reduction activities

described in the plan are determined by

the Department to be too costly for the

property. Any alternative activity

proposed by the Department must be

consistent with the risk assessment

report for the property and must be

conducted in accordance with part 37,

subparts E, F, H, and I, of this subtitle.

The Department shall also conduct an

environmental review in accordance

with part 50 of this subtitle prior to

approval of the hazard reduction plan or

recommendation of alternative hazard

reduction activities. A copy of the

Department’s determinations shall be

transmitted to any Contract

Administrator or HA. The requirements

of this paragraph (c) do not apply to

properties receiving assistance under

the Section 8 Project-Based Certificate

program.

§ 36.169 Hazard reduction.

Each owner shall conduct hazard

reduction to treat the lead-based paint

hazards identified in § 36.166 in

accordance with part 37, subparts E and

F, of this subtitle. Hazard reduction are

considered completed when cleanup

and clearance are achieved in

accordance with part 37, subparts H and

I, of this subtitle.

§ 36.170 EBL child.

(a) Risk assessment and hazard

reduction. If a child less than 6 years of

age living in a dwelling unit has an EBL,

the owner shall immediately conduct a

risk assessment in accordance with part

37, subpart B, of this subtitle. Hazard

reduction of identified lead-based paint

hazards must be conducted in

accordance with part 37, subparts E and

F, of this subtitle, and are completed

when cleanup and clearance are

achieved in accordance with part 37,

subparts H and I, of this subtitle.

(b) Reporting requirement. The owner

shall report the name and address of an

identified EBL child to the State or local

health agency. In the case of a property

receiving assistance under the Section 8

Project-Based Certificate program and

the Section 8 Moderate Rehabilitation

program, the owner shall also report the

name and address of the EBL child to

the public housing agency.

§ 36.172 Other required practices.

(a) Required practices. If hazard

reduction is conducted the following

practices are required:
29214 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

(1) Occupant protection and worksite

preparation in accordance with part 37,

subpart G, of this subtitle.

(2) Monitoring in accordance with

part 37, subpart J, of this subtitle.

(b) Control of new hazards. If

monitoring identifies new lead-based

paint hazards, each owner shall conduct

additional hazard reduction activities in

accordance with subparts E and F.

Hazard reduction is completed when

cleanup and clearance are achieved in

accordance with part 37, subparts H and

I, of this subtitle.

Subpart J—Disposition of HUD-Owned

and Mortgagee-in-Possession

Multifamily Property (With Sufficient

Appropriations)

§ 36.180 Purpose and applicability.

The purpose of this subpart is to

establish procedures to eliminate as far

as practicable lead-based paint hazards

prior to the disposition (i.e. sale) of a

multifamily property that is owned by

HUD or for which HUD is identified as

mortgagee-in-possession. The Secretary

shall determine:

(a) if there are sufficient

appropriations to cover the costs of

§§ 36.184 through 36.190; and

(b) when the procedures in these

sections will take effect.

§ 36.182 Exemption.

(a) In the absence of appropriations

sufficient to cover the costs of §§ 36.184

through 36.190 as determined by the

Secretary, these requirements shall not

apply to the Department. Instead, the

Department shall, at a minimum, follow

the requirements of subpart K of this

part.

(b) A dwelling unit that has sustained

extensive damage requiring major

rehabilitation or demolition is exempt

from the requirements of §§ 36.184

through 36.190.

§ 36.184 Disposition of multifamily

property constructed before 1960.

(a) Hazard evaluation. Before publicly

advertising the property for sale, the

Department shall conduct a risk

assessment and a paint inspection in

accordance with part 37, subparts B and

C, of this subtitle.

(b) Abatement of lead-based paint

hazards. The Department shall conduct

abatement of identified lead-based paint

hazards in accordance with part 37,

subpart F, of this subtitle. Abatement is

completed when cleanup and clearance

are achieved in accordance with part 37,

subparts H and I, of this subtitle.

Abatement of all lead-based paint

hazards must be completed no later than

conveyance of the title by the

Department at a HUD-owned sale, or

before a foreclosure sale caused by the

Secretary when the Department is

Mortgagee-in-Possession of the property.

If the disposition program under part

290 of this title provides for repairs to

be performed by the purchaser,

abatement may be included in the

required repairs.

§ 36.186 Disposition of multifamily

property constructed after 1959 and before

1978.

(a) Exemption. The Secretary may

waive the paint inspection and risk

assessment requirements of this section

if documentation is provided to the

Secretary that a risk assessment,

performed by a certified risk assessor,

shows an absence of lead-based paint

hazards, or that a paint inspection,

performed by a certified paint inspector,

shows an absence of lead-based paint. In

addition, the Secretary may waive the

requirements of this section if a

clearance test conducted by a certified

risk assessor has indicated the absence

of lead-based paint hazards.

(b) Hazard evaluation. Before publicly

advertising the property for sale, the

Department shall conduct a risk

assessment and a paint inspection in

accordance with part 37, subparts B and

C, of this subtitle.

§ 36.188 EBL child.

(a) Hazard evaluation and reduction.

If a child less than age 6 living in a

multifamily dwelling unit owned by the

Department (or where the Department is

Mortgagee-in-Possession) has an EBL,

the Department shall immediately

conduct a risk assessment and a paint

inspection in accordance with part 37,

subparts B and C, of this subtitle.

Reduction of identified lead-based paint

hazards must be conducted in

accordance with part 37, subparts E and

F, of this subtitle, and is completed

when cleanup and clearance are

achieved in accordance with part 37,

subparts H and I, of this subtitle.

(b) Reporting requirement. The

Department shall report the name and

address of an identified EBL child to the

State or local health agency.

§ 36.190 Other required practices.

(a) Required practices. If reduction of

lead-based paint hazards is conducted,

the following practices are required:

(1) Occupant protection and worksite

preparation in accordance with part 37,

subpart G, of this subtitle.

(2) Monitoring must be conducted in

accordance with part 37, subpart J, of

this subtitle if the Department retains

ownership of the property for more than

1 year.

(b) Control of new hazards. If

monitoring identifies new lead-based

paint hazards, the Department shall

conduct abatement in accordance with

part 37, subpart F, of this subtitle.

Abatement is completed when cleanup

and clearance are achieved in

accordance with part 37, subparts H and

I, of this subtitle.

Subpart K—Disposition of HUD-Owned

and Mortgagee-in-Possession

Multifamily Property (Without

Sufficient Appropriations)

§ 36.200 Purpose and applicability.

In the absence of appropriations

sufficient to cover the costs of subpart

J as determined by the Secretary, the

purpose of this subpart is to establish

alternative procedures to eliminate as

far as practicable lead-based paint

hazards prior to the disposition (i.e.

sale) of a multifamily property that is

owned by HUD or for which HUD is

identified as mortgagee-in-possession.

§ 36.202 Exemptions.

(a) Limited paint inspection. The

Department shall be exempt from the

requirements of §§ 36.204 through

36.210 for a specific deteriorated paint

surface if documentation exists that a

paint inspection has been completed in

accordance with part 37, subparts B or

C, of this subtitle, and indicates the

absence of lead-based paint on each

surface to be exempt (i.e. lead-free).

Results of additional test(s) by a

certified paint inspector may be used to

confirm or refute a prior finding.

(b) Extensive damage. A dwelling unit

that has sustained extensive damage

requiring major rehabilitation or

demolition is exempt from the

requirements of §§ 36.204 through

36.210.

§ 36.204 Visual evaluation of painted

surfaces.

Before publicly advertising the

property for sale, the Department shall

conduct a visual evaluation of all

painted surfaces in order to identify

deteriorated paint.

§ 36.206 Paint repair and cleanup.

(a) Paint repair and cleanup. The

Department shall repair each

deteriorated paint surface and conduct

cleanup of the worksite in accordance

with part 37, subpart D, of this subtitle.

(b) Completion of paint repair and

cleanup. Paint repair and cleanup of

deteriorated paint surfaces must be

completed no later than conveyance of

the title by the Department at a HUDowned sale, or before a foreclosure sale

caused by the Secretary when the

Department is Mortgagee-in-Possession

of the property. If the disposition

program under part 290 of this title
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29215

provides for repairs to be performed by

the purchaser, paint repair and cleanup

may be included in the required repairs.

(c) Occupancy. In the case of sale or

lease, occupancy is not permitted until

all required paint repair and cleanup is

complete.

§ 36.208 EBL child.

(a) Hazard evaluation and reduction.

If a child less than age 6 living in a

multifamily dwelling unit owned by the

Department (or where the Department is

Mortgagee-in-Possession) has an EBL,

the Department shall immediately

conduct a risk assessment in accordance

with part 37, subpart B, of this subtitle.

Reduction of identified lead-based paint

hazards must be conducted in

accordance with part 37, subparts E and

F, of this subtitle, and are completed

when cleanup and clearance are

achieved in accordance with part 37,

subparts H and I, of this subtitle.

(b) Reporting requirement. The

Department shall report the name and

address of an identified EBL child to the

State or local health agency.

§ 36.210 Monitoring.

If the Department retains ownership

of the property for more than 1 year,

monitoring must be conducted in

accordance with part 37, subpart J, of

this subtitle. If monitoring identifies

new deteriorated paint surfaces, the

Department shall conduct paint repair

and cleanup in accordance with part 37,

subpart D, of this subtitle.

Subpart L—Rehabilitation

§ 36.220 Purpose and applicability.

(a) Purpose and applicability. The

purpose of this subpart is to establish

procedures to eliminate as far as

practicable lead-based paint hazards in

a residential property that receives

Federal rehabilitation assistance under a

program administered by the Secretary.

These programs include the Community

Development Block Grant (42 U.S.C.

5301 et seq.), HOME Investment

Partnerships (42 U.S.C. 12701–12840),

HOPE for Homeownership of Single

Family Homes (HOPE 3), (42 U.S.C.

12891–12898); Indian Community

Development Block Grant Program (42

U.S.C. 5301 et seq., and 25 U.S.C. 450

et seq.); Indian HOME Investment

Partnerships (42 U.S.C. 12701–12840,

and 25 U.S.C. 450 et seq.);

Homeownership of Multifamily Units

(HOPE 2) (42 U.S.C. 12871–12880);

Emergency Shelter Grants (42 U.S.C.

11371–11378); Permanent Housing for

Handicapped Homeless Persons (42

U.S.C. 11381 et seq.); Supportive

Housing Program (42 U.S.C. 11381–

11389); and the Flexible SubsidyCapital Improvement Loan Program (12

U.S.C. 1715z–1a).

(b) Delegation of responsibility. Where

applicable, the grantee or participating

jurisdiction may require the

subrecipient or other entity

administering Federal rehabilitation

assistance to perform the

responsibilities set forth in this subpart.

§ 36.222 Definitions.

For purposes of this subpart:

CILP recipient means an owner of a

multifamily property which is

undergoing rehabilitation funded by the

Flexible Subsidy-Capital Improvement

Loan Program (CILP).

Hard costs of rehabilitation means:

(1) Costs to correct substandard

conditions or to meet the applicable

local rehabilitation standards;

(2) Costs to make essential

improvements, including energy-related

repairs, and those necessary to permit

use by handicapped persons; and costs

to repair or replace major housing

systems in danger of failure; and

(3) Costs of non-essential

improvements, including additions and

alterations to an existing structure.

Subrecipient means any organization

selected by the grantee or participating

jurisdiction to administer all or a

portion of the Federal rehabilitation

assistance. An owner or developer

receiving Federal rehabilitation

assistance for a residential property is

not considered a subrecipient for the

purposes of carrying out that project.

§ 36.224 Exemptions.

(a) Any rehabilitation that does not

disturb a painted surface is exempt from

the requirements of this subpart, except

for the requirements of § 36.230.

(b) If a grantee, participating

jurisdiction or CILP recipient certifies to

the Department that a residential

property undergoing federally funded

rehabilitation has previously removed

all lead-based paint, the requirements of

this subpart do not apply.

(c) A dwelling unit may be exempt

from the requirement to conduct a

limited paint inspection if the grantee,

participating jurisdiction or CILP

recipient provides certification that a

paint inspection has been previously

completed in accordance with part 37,

subpart C, of this subtitle and indicates

the absence of lead-based paint in the

dwelling unit (i.e. lead-free). Results of

additional test(s) by a certified paint

inspector may be used to confirm or

refute a prior finding.

§ 36.226 Rehabilitation costs.

(a) Applicability. This section applies

to recipients of Federal rehabilitation

assistance as described in § 36.220,

except for CILP recipients.

(b) Rehabilitation assistance. For

purposes of implementing §§ 36.234

through 36.238, rehabilitation assistance

is based on an average per unit

investment of Federal funds for the hard

costs of rehabilitation excluding leadbased paint hazard evaluation and

cleanup activities.

(c) Calculating rehabilitation

assistance. For a residential property

that includes both federally assisted and

non-assisted units, the rehabilitation

costs of non-assisted units are not

included in the calculation.

(1) The average cost of rehabilitation

for the assisted units is calculated as

follows:

Per Unit Rehab $ = [Total Federal Rehab

Assistance for Units + (Federal

Rehab $ for Common Areas &

Exterior Painted Surfaces × % of

Units Federally Assisted)] / Number

of Federally Assisted Units.

(2) Example: Eight out of 10 dwelling

units in a residential property receive

Federal rehabilitation assistance. The

total amount of Federal rehabilitation

assistance for the dwelling units is

$90,000 and the total amount of Federal

rehabilitation assistance for the common

areas and exterior surfaces is $10,000.

Based on the formula above, the average

per unit amount of Federal

rehabilitation assistance would be

$12,250. This is illustrated as follows:

$12,250 = [$90,000 + ($10,000 × 80%)]

/ 8.

§ 36.228 Calculating rehabilitation costs

for the Flexible Subsidy-CILP program.

All dwelling units and common areas

in a residential property are considered

to be assisted under the CILP program.

The cost of rehabilitation is calculated

as follows:

Per Unit Rehab $ = Federal Rehab

Assistance/Total Number of Units.

§ 36.229 Determining evaluation, paint

repair and hazard reduction requirements.

The following examples illustrate

how to determine whether the

requirements of §§ 36.234, 36.236, or

36.238 apply to a dwelling unit

receiving Federal rehabilitation

assistance (dollar amounts are on a per

unit basis):

(a) If the total investment of Federal

assistance is $2,000, and the hard costs

of rehabilitation are $10,000, the leadbased paint requirements would be:

visual evaluation, paint repair and

cleanup under § 36.232, because Federal

assistance is less than $5,000.

(b) If the total investment of Federal

assistance is $6,000, and the hard costs

of rehabilitation are $2,000, the lead-
29216 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

based paint requirements would be the

same as in paragraph (a) of this section.

Although the total Federal investment is

more than $5,000, only $2,000

constitutes Federal rehabilitation

assistance.

(c) If the total investment of Federal

assistance is $6,000, and the hard costs

of rehabilitation are $6,000, the leadbased paint requirements would be:

paint inspection, risk assessment and

reduction under § 36.236.

§ 36.230 Lead hazard information

pamphlet.

The grantee, participating jurisdiction

or CILP recipient shall provide the lead

hazard information pamphlet developed

by the Environmental Protection Agency

pursuant to section 406(a) of the Toxic

Substance Control Act, 15 U.S.C. 2686

to the tenant, owner-occupant or

purchaser of a residential property that

receives Federal rehabilitation

assistance under this subpart.

§ 36.232 Notice of evaluation, paint repair

and hazard reduction activities.

(a) Notice of evaluation. In cases

where evaluation is undertaken as part

of federally funded rehabilitation, each

grantee, participating jurisdiction or

CILP recipient shall provide a notice to

tenants.

(1) Notice of the evaluation must

include:

(i) A summary of the nature, scope

and results of the evaluation; and

(ii) A contact name and phone

number for more information or to

obtain access to the actual evaluation

report.

(2) The grantee, participating

jurisdiction or CILP recipient shall post

or distribute the notice within 15

calendar days of receiving the

evaluation report.

(b) Notice of paint repair and hazard

reduction activities. In cases where

paint repair or hazard reduction

activities are undertaken as part of a

federally assisted rehabilitation, each

grantee, participating jurisdiction or

CILP recipient shall provide a notice to

tenants.

(1) Notice of paint repair or hazard

reduction activities must include:

(i) A summary of the nature, scope

and results of the paint repair or lead

hazard reduction activities;

(ii) A contact name and phone

number for more information; and

(iii) Available information on the

location of any remaining lead-based

paint on a surface-by-surface basis.

(2) The grantee, participating

jurisdiction or CILP recipient shall post

or distribute the notice within 15

calendar days of completing hazard

reduction activities.

(3) The grantee, participating

jurisdiction or CILP recipient shall

periodically update the notice, based on

any reevaluation of the residential

property and as additional paint repair

or lead hazard reduction work is

conducted.

(c) Availability of notices of

evaluation, paint repair and hazard

reduction. (1) The notices of evaluation,

paint repair or hazard reduction must be

of a size and type that are easily read by

tenants.

(2) To the extent practicable, each

notice shall be made available, upon

request, in an accessible format to

persons with disabilities (i.e. braille,

large type, computer disk, audio tape).

(3) To the extent practicable, each

notice shall be provided in the tenant’s

primary language.

(4) The owner shall provide each

notice to the tenants by:

(i) Posting it in a centrally located,

easily accessible common area; or

(ii) Distributing it to each occupied

dwelling unit.

§ 36.234 Residential property receiving an

average of less than $5,000 per unit in

Federal rehabilitation assistance.

(a) Visual evaluation. Each grantee,

participating jurisdiction or CILP

recipient shall conduct a visual

evaluation of all painted surfaces to be

disturbed by rehabilitation in order to

identify deteriorated paint.

(b) Paint repair and cleanup. Before

occupancy of a vacant dwelling unit or,

where a unit is occupied, before

completion of rehabilitation, the

grantee, participating jurisdiction or

CILP recipient shall repair each

deteriorated paint surface and conduct

cleanup of the worksite in accordance

with part 37, subpart D, of this subtitle.

§ 36.236 Residential property receiving an

average of $5,000 or more and $25,000 or

less per unit in Federal rehabilitation

assistance.

(a) Limited paint inspection. Each

grantee, participating jurisdiction or

CILP recipient shall complete a limited

paint inspection in accordance with part

37, subpart C, of this subtitle. Each

limited paint inspection must be

conducted before occupancy of a vacant

dwelling unit or, where a unit is

occupied, before rehabilitation work

begins.

(b) Risk assessment. Each grantee,

participating jurisdiction or CILP

recipient shall complete a risk

assessment in the federally assisted

dwelling units, and in associated

common areas and exterior painted

surfaces, in accordance with part 37,

subpart B, of this subtitle. A risk

assessment must be conducted before

occupancy of a vacant dwelling unit or,

where a unit is occupied, before

rehabilitation work begins.

(c) Hazard reduction. Each grantee,

participating jurisdiction or CILP

recipient shall conduct hazard

reduction activities in accordance with

part 37, subparts E and F, of this subtitle

if a limited paint inspection identifies

lead-based paint, or a risk assessment

identifies a lead-based paint hazard.

Hazard reduction activities are

completed when cleanup and clearance

are achieved in accordance with part 37,

subparts H and I, of this subtitle.

§ 36.238 Residential property receiving an

average of more than $25,000 per unit in

Federal rehabilitation assistance.

(a) Limited paint inspection. Each

grantee, participating jurisdiction or

CILP recipient shall complete a limited

paint inspection in accordance with part

37, subpart C, of this subtitle. Each

limited paint inspection must be

conducted before occupancy of a vacant

dwelling unit or, where a unit is

occupied, before rehabilitation work

begins.

(b) Risk assessment. Each grantee,

participating jurisdiction or CILP

recipient shall complete a risk

assessment in the federally assisted

dwelling units, and in associated

common areas and exterior painted

surfaces, in accordance with part 37,

subpart B, of this subtitle. A risk

assessment must be conducted before

occupancy of a vacant dwelling unit or,

where a unit is occupied, before

rehabilitation begins.

(c) Abatement of lead-based paint

hazards. Each grantee, participating

jurisdiction or CILP recipient shall abate

any lead-based paint hazard on a surface

to be disturbed by rehabilitation

identified in paragraphs (a) or (b) of this

section in accordance with part 37,

subpart F, of this subtitle. Abatement is

completed when cleanup and clearance

are achieved in accordance with part 37,

subparts H and I, of this subtitle.

(d) Hazard reduction. Each grantee,

participating jurisdiction or CILP

recipient shall conduct hazard

reduction activities in accordance with

part 37, subparts E and F, of this subtitle

if a risk assessment identifies a leadbased paint hazard on a surface not

disturbed by rehabilitation and the

hazard has not been abated in

accordance with paragraph (c) of this

section. Hazard reduction activities are

completed when cleanup and clearance

are achieved in accordance with part 37,

subparts H and I, of this subtitle.
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29217

§ 36.240 Other required practices.

If paint repair or hazard reduction is

conducted the following practices are

required:

(a) Occupant protection and worksite

preparation in accordance with part 37,

subpart G, of this subtitle.

(b) Monitoring, to the extent

practicable, must be conducted in

accordance with part 37, subpart J, of

this subtitle.

Subpart M—Community Planning and

Development (CPD) Non-Rehabilitation

Programs

§ 36.250 Purpose and applicability.

(a) Purpose and applicability. The

purpose of this subpart is to establish

procedures to eliminate as far as

practicable lead-based paint hazards in

a residential property that receives

Federal assistance under certain

programs administered by the Secretary

for acquisition or leasing, tenant-based

rental assistance, or for support services

or operation provided for a property.

These programs include the Community

Development Block Grant (42 U.S.C.

5301 et seq.); HOME Investment

Partnerships (42 U.S.C. 12701–12840);

Homeownership of Multifamily Units

(HOPE 2) (42 U.S.C. 12871–12880);

HOPE for Homeownership of Single

Family Homes (HOPE 3) (42 U.S.C.

12891–12898); Indian Community

Development Block Grant Program (42

U.S.C. 5301 et seq.); Indian HOME

Investment Partnerships (25 U.S.C. 450

et seq.); Housing Opportunities for

Persons with Aids (HOPWA) (42 U.S.C.

12901–12912); Permanent Housing for

Handicapped Homeless Persons (42

U.S.C. 11381 et seq.); and Supportive

Housing Program (42 U.S.C. 11381–

11389).

(b) Delegation of responsibility. Where

applicable, the grantee or participating

jurisdiction may require the

subrecipient administering Federal

assistance to perform the

responsibilities set forth in this subpart.

§ 36.252 Definition—subrecipient.

Subrecipient means any organization

selected by the grantee or participating

jurisdiction to administer all or a

portion of the Federal assistance. An

owner or developer of an assisted

property is not considered a

subrecipient for the purposes of carrying

out that project.

§ 36.254 Exemption—limited paint

inspection.

The requirements of §§ 36.258 and

36.260 do not apply for a specific

deteriorated paint surface if the grantee

or participating jurisdiction certifies

that a paint inspection has been

completed in accordance with part 37,

subparts B or C, of this subtitle, and

indicates the absence of lead-based

paint on the specific deteriorated paint

surface (i.e. lead-free). Results of

additional test(s) by a certified paint

inspector may be used to confirm or

refute a prior finding.

§ 36.256 Lead hazard information

pamphlet.

The grantee or participating

jurisdiction shall provide the lead

hazard information pamphlet developed

by the Environmental Protection Agency

pursuant to section 406(a) of the Toxic

Substance Control Act, 15 U.S.C. 2686

to the tenant, owner-occupant or

purchaser of a residential property that

receives Federal assistance under this

subpart.

§ 36.258 Residential property constructed

before 1950.

If a dwelling unit receives Federal

assistance under this subpart (except

with tenant-based rental assistance),

each grantee or participating

jurisdiction shall conduct:

(a) A visual evaluation of all painted

surfaces in order to identify deteriorated

paint;

(b) Dust testing in accordance with

§ 37.16 of this subtitle to determine the

presence of lead-contaminated dust; and

(c) Paint repair of each deteriorated

surface and cleanup in accordance with

part 37, subpart D, of this subtitle before

occupancy of a vacant dwelling unit or,

where a unit is occupied, immediately

after receipt of Federal assistance. If the

dust testing required in paragraph (b) of

this section identifies the presence of

lead-contaminated dust, the grantee or

participating jurisdiction shall conduct

cleanup of the horizontal surfaces in the

room, dwelling unit or common areas

where the lead-contaminated dust is

located. If the dust testing indicates the

absence of lead-contaminated dust, the

grantee or participating jurisdiction

shall conduct cleanup of the worksite.

§ 36.260 Residential property constructed

after 1949 and before 1978.

If a dwelling unit receives Federal

assistance under this subpart (except

with tenant-based rental assistance),

each grantee or participating

jurisdiction shall conduct:

(a) A visual evaluation of all painted

surfaces in order to identify deteriorated

paint;

(b) Paint repair of each deteriorated

surface and cleanup of the worksite in

accordance with part 37, subpart D, of

this subtitle before occupancy of a

vacant dwelling unit or, where a unit is

occupied, immediately after receipt of

Federal assistance.

§ 36.262 Tenant-based rental assistance.

(a) Applicability. Tenant-based rental

assistance provided to a family with a

child less than 6 years of age is subject

to the requirements of part 36, subpart

O, of this subtitle, except for § 36.294.

(1) Lead hazard information

pamphlet. The grantee or participating

jurisdiction shall provide the lead

hazard information pamphlet in

accordance with § 36.256.

(2) The HOME administering agency

shall assume the responsibilities of the

HA set out in subpart O of this part.

(b) Monitoring. For assistance

provided under part 92 of this subtitle,

monitoring must be conducted as part of

the periodic unit inspection required

under § 92.211(g) of this subtitle.

Subpart N—Public and Indian Housing

Programs

§ 36.270 Purpose and applicability.

The purpose of this subpart is to

establish procedures to eliminate as far

as practicable lead-based paint hazards

in existing public and Indian housing

projects that are covered under Public

Housing Development (42 U.S.C. 1437b,

1437c and 1437g); Public Housing

Operating Subsidy (42 U.S.C. 1437g);

Public Housing Authority Owned or

Leased Projects—Maintenance and

Operation (42 U.S.C. 1437d and 1437g);

Public Housing Modernization

(Comprehensive Grant Program) (42

U.S.C. 1437l); Public Housing

Modernization (Comprehensive

Improvement Assistance Program) (42

U.S.C. 1437l); Homeownership and

Opportunity for People Everywhere

(HOPE 1) (42 U.S.C. 1437aaa et seq.);

Public and Indian Housing Drug

Elimination (42 U.S.C. 11901 note); and

the Indian Housing Programs (42 U.S.C.

1437aa et seq.).

§ 36.272 Definition—Public or Indian

housing project.

Public or Indian housing project

means a residential property developed,

acquired or assisted by a public or

Indian housing agency under the United

States Housing Act of 1937 (42 U.S.C.

1437 et seq.) and the improvement of

any such property, other than under

section 8 of that 1937 Act.

§ 36.274 Lead hazard information

pamphlet.

If a tenant resides in a dwelling unit

prior to the effective date of the

regulation implementing section 1018 of

Title X of the Housing and Community

Development Act of 1992 (42 U.S.C.

4852d), and the unit receives Federal
29218 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

assistance under a program described in

§ 36.270, the public or Indian housing

agency (hereafter, ‘‘HA’’) shall provide

the lead hazard information pamphlet

developed by the Environmental

Protection Agency, pursuant to section

406(a) of the Toxic Substances Control

Act, 15 U.S.C. 2686, to the tenant upon

recertification of income eligibility.

§ 36.276 Notices of evaluation and

reduction of lead-based paint and leadbased paint hazards.

(a) Notice of evaluation of lead-based

paint and lead-based paint hazards. In

cases where lead-based paint or leadbased paint hazard evaluation is

undertaken, each HA shall provide a

notice to all tenants.

(1) Notice of the evaluation must

include:

(i) A summary of the nature, scope

and results of the evaluation; and

(ii) A contact name and phone

number for more information, or to

obtain access to the actual evaluation

report.

(2) The HA shall post or distribute the

notice within 15 calendar days of

receiving the evaluation report.

(b) Notice of reduction of lead-based

paint or lead-based paint hazards. In

cases where reduction of lead-based

paint or lead-based paint hazards is

undertaken, each HA shall provide a

notice to tenants.

(1) Notice of hazard reduction must

include:

(i) A summary of the nature, scope

and results of the hazard reduction

activities;

(ii) A contact name and phone

number for more information; and

(iii) Available information on the

location of any remaining lead-based

paint on a surface-by-surface basis.

(2) The HA shall post or distribute the

notice within 15 calendar days of

completing hazard reduction activities.

(3) The HA shall periodically update

the notice, based on reevaluation of the

public and Indian housing project and

as any additional hazard reduction work

is conducted.

(c) Availability of notices of lead

hazard evaluation and reduction

activities. (1) The notices of evaluation

and hazard reduction must be of a size

and type that is easily read by tenants.

(2) To the extent practicable, each

notice shall be made available, upon

request, in an accessible format to

persons with disabilities (i.e. braille,

large type, computer disk, audio tape).

(3) To the extent practicable, each

notice shall be provided in the tenant’s

primary language.

(4) The HA shall provide each notice

to the tenants by:

(i) Posting it in a centrally located,

easily accessible common area; or

(ii) Distributing it to each occupied

public and Indian housing project unit.

§ 36.278 Evaluation.

(a) Exemption. A public or Indian

housing project shall be exempt from

the requirements of this section if the

HA can certify to the Department that:

(1) The public or Indian housing

project has previously had all leadbased paint removed and all lead-based

paint hazards have been abated; or

(2) A paint inspection described in

paragraph (b) of this section and a risk

assessment conducted in accordance

with part 37, subpart B, of this subtitle

were completed prior to (the effective

date of this rule).

(b) Paint inspection. Each HA shall

complete a paint inspection in the

public and Indian housing project in

accordance with part 37, subpart C, of

this subtitle no later than (the effective

date of this rule). If a paint inspection

was completed prior to [the effective

date of this rule], the Department

strongly encourages each HA to conduct

quality control activities in accordance

with procedures established by the

Secretary for on-site lead-based paint

testing activities. Quality control

activities are encouraged in order to

determine whether a paint inspection

has been properly performed and the

results are reliable.

(c) Visual evaluation, dust and soil

tests. If a paint inspection has indicated

the presence of lead-based paint, each

HA shall complete a visual evaluation to

identify the location of deteriorated

paint and conduct dust and soil tests in

the public and Indian housing project.

Dust and soil tests must be conducted

in accordance with §§ 37.16 and 37.18,

of this subtitle, respectively, and must

be completed on or before January 1,

1999. The HA shall identify locations of

deteriorated lead-based paint based

upon the visual evaluation and the paint

inspection.

(d) Soil test. Except for the mutualhelp homeownership projects and

Turnkey III projects covered under the

Indian Housing Program, each HA shall

complete a soil test in the public and

Indian housing project, even if a paint

inspection has indicated that no leadbased paint is present. A soil test must

be conducted in accordance with

§ 37.18 of this subtitle and must be

completed on or before January 1, 1999.

(e) Training. An individual or firm

conducting evaluation other than paint

inspection on behalf of an HA shall be

trained in lead hazard evaluation. An

individual or firm conducting paint

inspection shall meet the qualifications

set out in § 37.1(b) of this subtitle.

§ 36.280 Interim controls.

Each HA shall conduct interim

controls to treat the lead-based paint

hazards identified in § 36.278 in

accordance with part 37, subpart E, of

this subtitle, prior to abatement of these

hazards as required in § 36.282. Initial

interim controls must begin within 30

days of completing the evaluation

requirements described in § 36.278.

Interim controls are completed when

cleanup and clearance are achieved in

accordance with part 37, subparts H and

I, of this subtitle.

§ 36.282 Abatement.

Each HA shall abate all lead-based

paint and lead-based paint hazards

identified in § 36.278 in accordance

with part 37, subpart F, of this subtitle.

Abatement must be conducted

according to the following schedule:

(a) HAs receiving modernization

assistance. Each HA shall conduct

abatement of lead-based paint and leadbased paint hazards during the course of

physical improvements conducted

under modernization as described in

part 968 of this title.

(b) HAs not receiving modernization

assistance. Each HA shall conduct

abatement of lead-based paint and leadbased paint hazards as soon as

practicable after the evaluation

requirements of § 36.278 are completed.

Abatement is completed when cleanup

and clearance are achieved in

accordance with part 37, subparts H and

I, of this subtitle.

§ 36.284 EBL child.

(a) Hazard evaluation and reduction.

If a child less than 6 years of age living

in a public or Indian housing project has

an EBL, the HA shall complete a risk

assessment in accordance with part 37,

subpart B, of this subtitle, within 15

days of notification of the child’s EBL.

The HA shall conduct reduction of

identified lead-based paint hazards in

accordance with part 37, subparts E and

F, of this subtitle, within 15 days from

receipt of the risk assessment report.

Hazard reduction activities are

completed when cleanup and clearance

are achieved in accordance with part 37,

subparts H and I, of this subtitle; or

(b) Relocation. If a child less than 6

years of age living in a public or Indian

housing project has an EBL, the HA may

assign the family to a post-1978 or

previously evaluated unit (as described

in § 36.278) which was found to be free

of lead-based paint hazards, or in which

such hazards have been abated as

described in § 36.282.
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29219

(c) Notice of hazard evaluation and

reduction. The HA shall notify building

tenants of any evaluation or hazard

reduction activities as described in

§ 36.276.

(d) Reporting requirement. The HA

shall report the name and address of an

identified EBL child to the State or local

health agency.

§ 36.286 Other required practices.

(a) Required practices. If hazard

reduction is conducted, the following

practices are required:

(1) Occupant protection and worksite

preparation in accordance with part 37,

subpart G, of this subtitle.

(2) Monitoring in accordance with

part 37, subpart J, of this subtitle.

(b) Control of new hazards. If

monitoring identifies new lead-based

paint hazards, each HA shall conduct

additional hazard reduction activities in

accordance with part 37, subparts E and

F, of this subtitle. Hazard reduction is

completed when cleanup and clearance

are achieved in accordance with part 37,

subparts H and I, of this subtitle.

Subpart O—Tenant-Based Rental

Assistance

§ 36.290 Purpose and applicability.

(a) Purpose. The purpose of this

subpart is to establish procedures to

eliminate as far as practicable leadbased paint hazards in existing dwelling

units where a tenant with a child less

than 6 years of age resides and the

tenant receives assistance through a

tenant-based housing assistance

program administered by the Secretary.

The tenant-based housing assistance

programs are the section 8 tenant-based

rental certificate program and the

section 8 rental voucher program under

section 8 of the United States Housing

Act of 1937 (42 U.S.C. 1437f); the

HOME Tenant-Based Rental Assistance

Program (42 U.S.C. 12701–12840); and

Shelter Plus Care Tenant-Based Rental

Assistance (42 U.S.C. 11403 et.seq.).

(b) Applicability. The requirements of

this subpart apply to:

(1) All painted surfaces within a

dwelling unit constructed before 1978

(including ceilings);

(2) Painted surfaces in the entrance

and hallway providing access to a unit;

(3) Exterior painted surfaces up to 5

feet from the floor or ground that are

readily accessible to a child under age

six including, but not limited to, walls,

stairs, decks, porches, railings, windows

and doors; and

(4) painted playground equipment

and painted boundary fences

surrounding a child’s exterior play area.

(c) The requirements of this section

do not apply to outbuildings such as

garages and sheds, or bare soil

surrounding the residential property.

§ 36.292 Exemptions.

(a) Limited paint inspection. The

requirements of §§ 36.296 through

36.302 do not apply for a specific

deteriorated paint surface if the owner

certifies to the HA that a paint

inspection has been completed in

accordance with part 37, subparts B or

C, of this subtitle, and indicates the

absence of lead-based paint on the

specific deteriorated paint surface (i.e.

lead-free). Results of additional test(s)

by a certified paint inspector may be

used to confirm or refute a prior finding.

(b) Abatement of lead-based paint. An

owner shall be exempt from the

requirements of §§ 36.296 through

36.302 for a dwelling unit if certification

is provided to the HA that the unit has

been abated of all lead-based paint in

accordance with part 37, subpart F, of

this subtitle.

§ 36.294 Lead hazard information

pamphlet.

If a tenant resides in a dwelling unit

prior to the effective date of the

regulation implementing section 1018 of

Title X of the Housing and Community

Development Act of 1992, and receives

Federal assistance under a program

described in § 36.290, the HA shall

provide the lead hazard information

pamphlet developed by the

Environmental Protection Agency,

pursuant to section 406(a) of the Toxic

Substance Control Act, 15 U.S.C. 2686

to the tenant at the next periodic unit

inspection required under § 982.405 of

this title.

§ 36.296 Residential property constructed

before 1950; initial inspections.

(a) Evaluation. During the initial

inspection required at § 982.305 of this

title, a Housing Quality Standards

(HQS) inspector trained in lead hazard

evaluation shall conduct:

(1) A visual evaluation of all painted

surfaces in order to identify deteriorated

paint; and

(2) Dust testing in accordance with

§ 37.16 of this subtitle to determine the

presence of lead in dust.

(b) Paint repair and cleanup. The

owner shall repair each deteriorated

paint surface and conduct cleanup in

accordance with part 37, subpart D, of

this subtitle before occupancy of a

vacant dwelling unit or, where a unit is

occupied, within 30 days of notification

of the results of the visual evaluation. If

the dust testing required in paragraph

(b)(2) of this section identifies the

presence of lead-contaminated dust, the

owner shall conduct cleanup of the

horizontal surfaces in the room,

dwelling unit or common areas where

the lead-contaminated dust is located. If

the dust testing indicates the absence of

lead-contaminated dust, the owner shall

conduct cleanup of the worksite.

§ 36.298 Residential property constructed

before 1950; periodic inspections.

(a) Visual evaluation. During the

periodic inspection required at

§ 982.405 of this title, an HQS inspector

trained in lead hazard evaluation shall

conduct a visual evaluation of all

painted surfaces in order to identify

deteriorated paint.

(b) Paint repair and cleanup. The

owner shall repair each deteriorated

paint surface and conduct cleanup of

the worksite in accordance with part 37,

subpart D, of this subtitle, within 30

days of notification of the results of the

visual evaluation.

§ 36.300 Residential property constructed

after 1949 and before 1978; initial and

periodic inspections.

(a) Visual evaluation. During the

initial and periodic inspections required

at §§ 982.305 and 982.405 of this title,

an HQS inspector trained in lead hazard

evaluation shall conduct a visual

evaluation of all painted surfaces in

order to identify deteriorated paint.

(b) Paint repair and cleanup. The

owner shall repair each deteriorated

paint surface and conduct cleanup of

the worksite, in accordance with part

37, subpart D, of this subtitle, within 30

days of notification of the results of the

visual evaluation.

§ 36.302 EBL child.

(a) Risk assessment and interim

controls. If a child less than 6 years of

age living in a dwelling unit where the

family receives Federal assistance has

an EBL, the owner shall complete a risk

assessment in accordance with part 37,

subpart B, of this subtitle within 15

calendar days of notification of the

child’s EBL. The owner shall conduct

interim controls of identified lead-based

paint hazards in accordance with part

37, subpart E, of this subtitle, within 15

calendar days from receipt of the risk

assessment report. Interim controls are

completed when cleanup and clearance

are achieved in accordance with part 37,

subparts H and I, of this subtitle.

(b) Data collection and recordkeeping

responsibilities. To the extent

practicable, the HA or the administering

agency shall attempt to obtain annually

from the State or local health agency the

names and addresses of children less

than age six with identified EBLs. The

HA or the administering agency shall

annually match this information with

the names and addresses of families
29220 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

receiving Federal assistance under a

program described in § 36.290. If a

match occurs, the HA or the

administering agency shall require a risk

assessment and interim controls in

accordance with § 36.302(a).

PART 37—STANDARDS AND

METHODS FOR LEAD-BASED PAINT

HAZARD EVALUATION AND

REDUCTION ACTIVITIES IN

FEDERALLY OWNED RESIDENTIAL

PROPERTIES AND HOUSING

RECEIVING FEDERAL ASSISTANCE

Subpart A—General Requirements

Sec.

37.1 Purpose and applicability

37.2 Definitions.

37.4 Reference.

37.6 Laboratory analysis.

Subpart B—Risk Assessment

37.10 Unit selection.

37.12 Requirements for risk assessments.

37.14 Requirements for testing paint for a

risk assessment.

37.16 Requirements for dust testing.

37.18 Requirements for testing potential

soil hazards.

Subpart C—Paint Inspection

37.30 Paint inspection methods.

37.32 Paint inspection of single-family and

small multifamily residential properties.

37.34 Paint inspection of multifamily

property.

37.36 Paint inspection report.

Subpart D—Paint Repair

37.50 Requirements.

Subpart E—Interim Controls

37.60 Purpose and applicability.

37.62 Supervision of interim control

workers.

37.64 General requirements.

37.66 Requirements for paint stabilization

controls.

37.68 Requirements for friction and impact

surface interim controls.

37.70 Requirements for lead-contaminated

dust control.

37.72 Requirements for lead-contaminated

bare soil interim controls.

Subpart F—Abatement

37.80 Requirements for abatement of leadbased paint or lead-based paint hazards.

37.82 Soil abatement.

Subpart G—Occupant Protection and

Worksite Preparation

37.90 Purpose and applicability.

37.92 Requirements for occupant

protection.

37.94 Worksite preparation.

Subpart H—Cleanup

37.110 Purpose and applicability.

37.112 Requirements for daily cleanup.

37.114 Requirements for final cleanup.

Subpart I—Clearance

37.120 Purpose and applicability.

37.122 General requirements.

37.124 Unit selection.

37.126 Requirements for visual

examination.

37.128 Requirements for dust testing.

37.130 Required actions for dwelling units

and common areas that fail dust tests.

37.132 Requirements for soil testing.

37.134 Required actions for properties that

fail soil tests.

Subpart J—Monitoring

37.140 Exemptions.

37.142 General requirements.

37.144 Visual survey.

37.146 Reevaluation.

Authority: 42 U.S.C. 3535(d) and 4822.

Subpart A—General Requirements

§ 37.1 Purpose and applicability.

(a) This part provides standards and

methods for lead-based paint activities

required in part 36 of this subtitle.

(b) Paint inspection, risk assessment,

and abatement activities, including

clearance examinations, shall be

performed by paint inspectors, risk

assessors and abatement supervisors

and workers certified in accordance

with EPA regulations at 40 CFR 745.226

(implementing sections 402 and 404 of

TSCA (as amended by section 1021 of

the Lead-Based Paint Hazard Reduction

Act of 1992, 15 U.S.C. 2681 et seq.).

When paint inspectors, risk assessors

and abatement supervisors and workers

are not certified in accordance with 40

CFR 745.226, the applicable

requirements set forth in this part 37

shall apply. The Secretary may also

establish temporary qualifications for

paint inspectors, risk assessors, and

abatement supervisors and workers, if it

is determined that the number of

certified personnel is insufficient. With

respect to the standards and methods for

lead-based paint hazard evaluation and

reduction activities that are not

included in 40 CFR 745.226, the

applicable requirements set forth in this

part 37 shall apply.

§ 37.2 Definitions.

Definitions of terms used in this part

are found in § 36.3 of this subtitle.

§ 37.4 Reference.

Further information regarding leadbased paint hazard evaluation and

reduction activities described in this

part 37 is contained in the HUD

Guidelines for the Evaluation and

Control of Lead-Based Paint Hazards in

Housing (June 1995). For information on

obtaining copies of these guidelines,

contact HUD’s Office of Lead-Based

Paint Abatement and Poisoning

Prevention, 451 Seventh Street, SW,

Room B–133, Washington, DC 20410.

§ 37.6 Laboratory analysis.

All laboratories performing analyses

of lead in paint, dust, and soil under

these regulations shall be accredited by

the U.S. Environmental Protection

Agency’s National Lead Laboratory

Accreditation Program (NLLAP). Paint

samples must be analyzed in accordance

with the requirements of the

Environmental Lead Proficiency

Analytical Testing Program (ELPAT).

Subpart B—Risk Assessment

§ 37.10 Unit selection.

(a) Risk assessments of five or more

similar dwelling units. (1) For risk

assessments involving five or more

similar dwelling units, the risk assessor

may perform the risk assessment using

a sample of dwelling units. The units in

the sample shall be selected in

accordance with:

(i) The targeted sampling

requirements established by this

section; or

(ii) The random sampling

requirements established in subpart C of

this part.

(2) Any common areas servicing the

dwelling units in the sample shall be

evaluated in the risk assessment, as well

as the surrounding land belonging to the

residential property owner.

(3) Any dwelling unit occupied by a

child with an elevated blood level shall

be excluded from the minimum number

of units to be sampled unless units

occupied by an EBL child are needed to

make up the necessary unit sample size.

All units occupied by an EBL child

must be investigated in accordance with

the requirements of part 36 of this

subtitle.

(b) Risk assessments of less than five

dwelling units or of 5 or more dwelling

units that are not similar. For risk

assessments of less than 5 dwelling

units or of five or more dwelling units

that are not similar, the risk assessment

shall evaluate each dwelling unit, any

common areas, and any surrounding

land belonging to the owner.

(c) Targeted samples. To obtain a

targeted sample of dwelling units,

individual units shall be selected in

accordance with the following

procedures:

(1) Determine the minimum number

of dwelling units to be sampled

according to Table 1—Minimum

Number of Targeted Dwelling Units to

Sample Among Similar Dwelling Units.

(2) Rank dwelling units by the

following criteria which are listed in

order of priority:

(i) Dwelling units cited for housing or

building code violations within the past

year.
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29221

(ii) Dwelling units that the owner

designates are in poor condition.

(iii) Dwelling units that contain two

or more children between the ages of six

months and 6 years with preference

given to dwelling units housing the

largest number of children.

(iv) Dwelling units that serve as day

care facilities.

(v) Dwelling units prepared for

reoccupancy within the past three

months.

(3) Select dwelling units to meet as

many of the criteria as possible.

(i) The risk assessor shall select at

least one but not more than four

dwelling units that have recently been

prepared for reoccupancy, if possible.

(ii) If additional dwelling units are

required to meet the minimum sampling

number, the risk assessor shall select

them randomly.

(iii) If there are many dwelling units

that satisfy the same criteria, those with

the largest number of children of less

than 6 years of age shall be selected.

TABLE 1.—MINIMUM NUMBER OF TARGETED

DWELLING UNITS TO SAMPLE AMONG SIMILAR

DWELLING UNITS *

Number of similar

dwelling units

Number of

dwelling

units to sample

1–4 All.

15–20 4 units or

50%

(whichever

is greater).**

TABLE 1.—MINIMUM NUMBER OF TARGETED

DWELLING UNITS TO SAMPLE AMONG SIMILAR

DWELLING UNITS *—Continued

Number of similar

dwelling units

Number of

dwelling

units to sample

21–75 10 units or

20%

(whichever

is greater).**

76–125 17.

126–175 19.

176–225 20.

226–300 21.

301–400 22.

401–500 23.

501+ 24 + 1 for

each additional increment of

100 dwelling units or

less.

* Does not include dwelling units with EBL

children. ** For percentages, round up to determine

number of dwelling units to be sampled.

§ 37.12 Requirements for risk

assessments.

(a) General. (1) Risk assessments shall

be conducted in accordance with

procedures described in this section.

The objectives of a risk assessment are

to:

(i) Identify and report on the

existence, nature, severity, source, and

location of lead-based paint hazards or

document that no such hazards have

been identified; and

(ii) Identify and report acceptable

methods for controlling lead-based paint

hazards that are identified, including

interim control and abatement

measures.

(2) The scope of the risk assessment

shall include the worksite, and dwelling

units and common areas selected in

accordance with § 37.10.

(b) Visual assessment. The risk

assessor shall perform a visual

assessment of the selected dwelling

units, common areas, exterior building

surfaces and any surrounding land

belonging to the owner to identify

potential lead-based paint hazards, as

follows:

(1) If prior paint inspection reports are

available, risk assessors shall consider

whether the past paint inspection

conformed to current standards. If the

prior paint inspection is determined to

be reliable and complete, the risk

assessor is only required to visually

assess surfaces that have been

determined to contain lead-based paint.

If a paint inspection has not been

completed or if the risk assessor

determines that the paint inspection

report is or may be unreliable, painted

surfaces shall be assumed to contain

lead-based paint unless tests performed

in accordance with the requirements of

§ 37.14 show that the paint’s lead

concentration does not exceed the

applicable standards.

(2) The risk assessor shall identify any

deteriorated paint surfaces and assess

the extent of the deterioration. Based on

the extent of the deterioration observed,

the risk assessor shall rate the paint film

condition of each deteriorated surface as

intact, fair, or poor using the standards

presented in Table 2: Categories of Paint

Film Condition.

TABLE 2.—CATEGORIES OF PAINT FILM CONDITION

Type of building component*

Size of affected surface area

Intact Fair Poor

Exterior components with large surface

areas.

Entire surface is intact.Less than or equal to 10 square feet

nonintact.

More than 10 square feet nonintact.

Interior components with large surface

areas (walls, ceilings, floors, doors).

Entire surface is intact.Less than or equal to 2 square feet

nonintact.

More than 2 square feet nonintact.

Interior and exterior components with

small surface areas (window sills,

baseboards, soffits, trim).

Entire surface is intact.Less than or equal to 10 percent of

the total surface area of the component nonintact.

More than 10 percent of the total surface area of the component nonintact.

*Building component in this table refers to each individual component or side of building, not the combined surface area of all similar components in a room (e.g., a wall with one square foot of deteriorated paint is in ‘‘fair’’ condition, even if the other 3 walls in a room have no deteriorated paint).

(3) The risk assessor shall identify any

painted surfaces where the component

has been chewed or mouthed by a child.

Painted surfaces where there is clear

evidence of teeth marks or that are

identified by residents as having been

chewed or mouthed by children are

examples of such evidence.

(4) The risk assessor shall identify any

painted surfaces that are subject to

friction or impact such as windows,

doors, stair treads, or floors.

(5) The risk assessor shall identify

potential soil hazards on the residential

property. Potential soil hazards are:

(i) Any large soil in play areas,

including sand boxes; and

(ii) Bare soil in areas other than play

areas (such as soil along the building

foundation or drip line, vegetable

gardens, pet sleeping areas, bare dirt

pathways) that totals more than 9 square

feet per property.
29222 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

(6) The risk assessor shall examine

buildings and the worksite for structural

deficiencies or conditions that

contribute to observed paint

deterioration and other potential leadbased paint hazards. Deterioration in the

roof that results in water leaks is an

example.

(c) Evaluation of potential lead-based

paint hazards. (1) The risk assessor shall

determine if deteriorated paint surfaces

in poor condition and chewed paint

surfaces identified during the visual

assessment are lead-based paint

hazards.

(i) Such surfaces known or assumed

to contain lead-based paint shall be

considered lead-based paint hazards,

except that intact factory applied prime

coatings on metal surfaces shall not be

considered lead-based paint hazards.

(ii) Such surfaces tested in accordance

with the requirements of § 37.14 that

have a lead concentration equal to or

exceeding 1.0 mg/cm2 (one milligram

per square centimeter) or 0.5 percent by

weight (5000 parts per million) shall be

considered lead-based paint hazards.

(iii) Surfaces in fair condition do not

constitute lead-based paint hazards, but

may become hazardous in the future.

Risk assessors shall recommend that

such surfaces be repaired.

(2) Dust tests of all selected dwelling

units and common areas shall be

performed in accordance with § 37.16 to

determine if lead-contaminated dust is

present. If either the single surface or

composite test results for any room,

room equivalent, unit, or common area

exceed the following standards, a leadbased paint hazard exists in that room,

room equivalent, dwelling unit or

common area due to the presence of

lead-contaminated dust:

(i) Hard floors—100 ug/ft.2

(micrograms of lead per square foot).

(ii) Carpeted floors—100 ug/ft.2

(micrograms of lead per square foot).

(iii) Interior window sills—500 ug/ft.2

(micrograms of lead per square foot).

(3) If a potential soil hazard is

identified during a visual assessment of

the worksite, soil tests shall be

performed in accordance with § 37.18. If

the test results exceed the following

standards, the bare soil in these areas

shall be considered lead-contaminated:

(i) 400 ug/g (micrograms of lead per

gram of soil) in play areas and sand

boxes.

(ii) 2,000 ug/g (micrograms of lead per

gram of soil) in other areas.

(d) Evaluation of potential lead-based

paint hazards when targeted sampling

of units is used. (1) If a targeted

sampling of dwelling units was used to

evaluate paint, the results of the paint

evaluation shall be analyzed by

component and location, as follows:

(i) If all sampled components at a

given location (for example, all hallway

baseboards or all bathroom walls)

exceed the standard or all are below the

standard, the risk assessor shall

conclude that this condition is true for

the total population of similar dwelling

units, common areas, and exterior

surfaces.

(ii) If a component contains leadbased paint in some dwelling units and

not in others, the risk assessor shall

conclude that all similar components

constitute a hazard, unless a paint

inspection is completed in every

dwelling unit, common area, or exterior

surface, in accordance with the

requirements of subpart C of this part.

(2) If targeted sampling was used to

evaluate dust, the risk assessor shall

calculate the arithmetic mean of the

results for each type of component

(floors and window sills) by room type.

If the mean dust level for a component

in the targeted dwelling units exceeds

the standard all of the components

represented by the sample constitute a

hazard in all dwelling units except

those components with negative results.

If the mean is below the standard, but

some of the individual sample results

exceed the standard, only those

individual surfaces constitute a hazard,

and the risk assessor shall use

professional judgment to determine if

additional testing is necessary for those

components in the untested units of the

sample.

(e) Identify acceptable lead hazard

control options. Using information on

existing hazards and the condition of

the building, the risk assessor shall

identify acceptable lead-based paint

hazard control methods.

(f) Report. The risk assessor shall

prepare a final report documenting the

findings of the risk assessment in

accordance with the requirements of 40

CFR part 745.228.

§ 37.14 Requirements for testing paint for

a risk assessment.

(a) General. Deteriorated paint in poor

condition or chewed surfaces in a

dwelling unit or a common area shall be

tested according to the following

procedures. Paint testing is optional for

intact paint on friction and impact

surfaces; it is not required:

(b) X-ray fluorescence (XRF) testing.

An XRF analyzer may be used to test the

lead concentration of a painted surface,

unless the surface is not suitable for this

method of analysis. The use of an XRF

analyzer to test a painted surface shall

be performed in accordance with the

requirements of subpart C of this part.

(c) Testing of paint chip samples. A

surface may also be tested for lead-based

paint by laboratory analysis of paint

chip samples in accordance with the

following requirements. Paint chip

samples must be collected after dust

sampling is completed to minimize the

possibility of cross sample

contamination.

(1) One paint chip sample shall be

collected in each sampled dwelling unit

to represent each component with

deteriorated or chewed surfaces, both

interior and exterior.

(2) Composite sampling of paint chips

is permitted as follows, but compositing

shall not occur across different

components:

(i) No more than five subsamples shall

be used.

(ii) Each sample shall be composited

in the laboratory.

(iii) The lead-based paint standard

shall be divided by the number of

subsamples contained in the composite

sample to determine if any subsample

could exceed the standard.

§ 37.16 Requirements for dust testing.

(a) General. Risk assessors and others

required to conduct dust testing shall

test for lead-contaminated dust in

dwelling units and common areas in

accordance with the procedures

described in this section.

(b) Number and location of dust

samples within dwelling units. (1) Dust

testing within dwelling units shall be

conducted by collecting either

composite or single-surface wipe

samples.

(2) The same room/component

combination shall not be sampled twice.

For example, if the principal play area

(identified pursuant to § 37.16(b)(3)(ii))

is the kitchen, a substitute must be

selected for the required sample of an

interior window sill in the kitchen.

(3) If single-surface dust sampling is

used, a minimum number of six

locations per dwelling unit shall be

sampled, three floors and three interior

window sills from the following specific

locations:

(i) The floor and an interior window

sill of the bedroom of the youngest child

six months of age or more. If there are

no children living in the dwelling unit

or if the dwelling unit is vacant, the

samples shall be collected from the

room that would likely be the bedroom

of the youngest child six months of age

or more (usually the smallest bedroom).

(ii) The floor and an interior window

sill of the principal play area of the

youngest child six months of age or

more other than his or her bedroom. If

there are no children living in the

dwelling unit or if the dwelling unit is
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29223

vacant, the samples shall be collected

from the room that would likely be the

play room of the youngest child six

months of age or more. If there is no

window in the sampled play room, a

sample shall be collected from the

interior window sill of another room

that would likely be frequented by the

youngest child six months of age or

more.

(iii) The floor of the principal

entryway. If the principal entryway is

not distinguishable from the sampled

play area or the sampled bedroom, the

sample shall be collected from the floor

of another high-traffic area (such as the

living room, family room, TV room,

dining area, or kitchen) that is

distinguishable from the sampled play

room or the sampled bedroom.

(iv) An interior window sill sample

from the kitchen. If there is no window

in the kitchen, the sample shall be

collected from an interior window sill

in the dining area or another room likely

to be frequented by the youngest child

six months of age or more.

(4) If composite sampling is used, a

minimum number of eight locations per

dwelling unit shall be sampled, four

floors and four interior window sills.

The location of six of these samples

shall be determined in accordance with

the requirements of paragraph (b)(3) of

this section. The other two samples

shall be collected from the floor and an

interior window sill of the bedroom of

the next oldest child six months of age

or more.

(c) Number and location of dust

samples in common areas. Dust samples

shall be collected from the following

locations in common areas:

(1) In multifamily buildings of four

stories or less, one sample from the

entry area floor and one from the floor

of the first landing of a common

stairway or from the first floor hallway.

If there is a hallway window that is

frequently used, the risk assessor shall

collect a sample from the interior

window sill and substitute this sample

for the floor sample from the first

landing or hallway.

(2) In multifamily buildings higher

than four stories, one sample each from

the hallway of every fourth floor and

one each from the stairways between

every fourth floor.

(3) In on-site community buildings,

day care centers, or other buildings

frequented by children, dust sampling

shall be completed in accordance with

the following:

(i) For spaces up to 2000 square feet,

collect two dust samples from widely

separated locations in high traffic areas

used by or accessible to children, and

one dust sample from an interior

window sill.

(ii) For spaces over 2000 square feet,

collect one additional floor sample for

each increment of 2000 square feet, and

one additional sample of an interior

window sill for each additional

increment of 2000 square feet.

(iii) In the building’s management

office, one dust sample shall be

collected from the floor of the resident

waiting area; two dust samples shall be

collected if the area is more than 400

square feet.

(d) Selection of specific sampling

locations on floors and interior window

sills. Specific dust sampling locations

shall be determined as follows:

(1) Floors: Select hard floor surfaces

that are reasonably accessible. If hard

floor surfaces are not available, select

carpeted surfaces. If there are friction or

impact surfaces in the room select a

floor location near the friction or impact

surface that is most likely to be

generating lead contaminated dust. If

there are no friction or impact surfaces

but there is visible floor dust, select one

or more dusty locations accessible to

children if 6 to 59 months of age. If none

of these conditions are present, select

the highest traffic area in the room.

(2) Interior window sills: Select

windows that are frequently opened

especially those most frequently

contacted by children. If children’s use

patterns are unknown, select windows

that have friction surfaces. If none of

these conditions are present, select

randomly.

(3) Common areas: Select floor

locations in a high traffic area and

window sill locations at windows that

are frequently operated.

(e) Sample collection procedure. (1)

Additional information concerning

these procedures is contained in the

HUD Guidelines.

(2) Wet wipes shall be used to collect

all dust samples.

(3) If composite sampling is used,

samples shall be composited according

to the following requirements:

(i) Separate composite samples are

required from each different type of

component sampled. For example,

subsamples from both floors and

window sills shall not be combined into

a single composite sample. Subsamples

from both carpeted and hard floors may

be combined in a single sample.

(ii) Separate composite samples are

required for each dwelling unit.

(iii) The surface areas of subsamples

shall be the same size.

(iv) The same dust wipe shall not be

used to sample two different locations.

(v) A maximum of four dust wipe

subsamples shall be placed in a single

container for a composite sample.

(4) One blank dust wipe sample must

be sent to the laboratory for every 25

dust wipe samples, or less if fewer than

25 dust wipe samples are used. If

composite samples are used, the blank

dust wipe sample shall consist of four

dust wipe samples inserted into a single

container. For single surface samples

one blank dust wipe sample shall be

inserted into the container. Spiked field

samples are not required.

(5) All samples shall be submitted to

an EPA recognized laboratory for

analysis.

§ 37.18 Requirements for testing potential

soil hazards.

(a) General. The risk assessor and

others required to conduct soil testing

shall collect and submit samples of bare

soil in the yard. Except for play areas,

sampling is not required unless other

bare soil areas total more than 9 square

feet.

(b) Selecting areas to sample. One

composite sample shall be collected

from the child’s principal play area if it

exists and one composite sample from

the front or back yard and/or a sample

from along the foundation drip line.

(c) Sampling procedures. The risk

assessor and others required to conduct

soil testing shall use the following

procedures to collect the soil samples:

(1) Each sample shall consist of equal

soil subsamples taken from the top onehalf inch (1 centimeter) of soil at three

to ten locations equidistant from each

other. For samples taken from along the

foundation, subsamples shall be

collected 2 to 6 feet from each other.

(2) The yard and the foundation drip

line subsample may be combined into a

single composite sample, but the

subsamples from the principal play area

shall be composited as a single sample.

(3) If paint chips are present in the

soil they shall be included as part of the

soil sample.

Subpart C—Paint Inspection

§ 37.30 Paint inspection methods.

The lead content of paint on

components being inspected shall be

tested by using portable X-ray

fluorescence analyzer (XRF), in

combination with:

(a) Laboratory analysis of paint chip

samples in accordance with the

requirements of § 37.6; or

(b) Other methods approved by the

Secretary.
29224 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

§ 37.32 Paint inspection of single-family

and small multifamily residential properties.

The following requirements shall

apply to paint inspections of singlefamily and multifamily residential

properties of fewer than 20 units.

(a) Paint inspections shall be

performed on all testing combinations

on the residential property that are

coated with paint, varnish, shellac,

stain, or other coating, including those

that have been coated and covered with

wallpaper, except components known to

have been replaced after 1980. Limited

paint inspections shall be performed in

accordance with the requirements of

this subpart on all testing combinations

to be disturbed during rehabilitation

activities. Examples of testing

combinations are shown in the chart at

the end of this paragraph.

EXAMPLES OF A FEW TESTING COMBINATIONS

Room equivalent Component Substrate Color

Bedroom ............................................................................................................ Door ........................... Wood ......................... Brown.

Kitchen ............................................................................................................... Wall ........................... Plaster ....................... Green.

Garage ............................................................................................................... Floor .......................... Concrete .................... Red on black.

West side of house ........................................................................................... Siding ........................ Wood ......................... White.

Exterior area playground ................................................................................... Swing set ................... Metal .......................... Orange.

(b) XRF Testing protocol. (1) XRF

testing shall be accomplished according

to the instrument manufacturer’s

instructions and shall include quality

control procedures, except that substrate

corrections inconclusive ranges and

calibration shall be made in accordance

with the HUD/EPA Performance

Characteristics Sheet for the XRF model

being used.

(2) Paint inspections shall include the

analysis of each testing combination on

the residential property. One XRF

reading shall be taken at three different

test locations on each testing

combination. The test locations shall be

representative of the testing

combination including all layers of

paint, and be a sufficient distance from

pipes or electrical outlets to avoid

interference. If testing combinations are

replicated, (i.e. three windows in the

same room) the selection of test

locations shall include a location on up

to three replicates. If acceptable test

locations cannot be found for XRF

testing, a paint chip sample shall be

collected for laboratory analysis.

(3) An average of the three readings

taken on different parts of the

component shall be computed for each

testing combination. That average,

corrected for substrate interference if

necessary, shall determine the

classification of the testing combination

as positive, negative, or inconclusive

regarding the presence of lead-based

paint. The positive, negative, and

inconclusive ranges for XRF testing

shall be determined based on the HUD/

EPA Performance Characteristics Sheets

of the model of XRF being used.

(4) A paint chip sample shall be

collected for laboratory analysis from all

testing combinations that test

inconclusive.

(5) Test results of 1.0 milligram of

lead per square centimeter ( 1.0 mg/cm2)

or greater or 0.5 percent of lead by

weight or greater shall be considered

positive. All other results shall be

considered negative.

§ 37.34 Paint inspection of multifamily

property.

(a) In a multifamily property of less

than 20 units all units must be

inspected in accordance with the

requirements of § 37.2. In a multifamily

property of 20 or more units, a random

sample of units shall be inspected in

accordance with the following table:

NUMBER OF UNITS TO BE INSPECTED

IN A MULTIFAMILY PROPERTY

Number of units in building

or group of similar buildings

Number of units

to be tested

20–26 ................................. 20

27 ....................................... 21

28 ....................................... 22

29–30 ................................. 23

31 ....................................... 24

32 ....................................... 25

33–34 ................................. 26

35 ....................................... 27

36 ....................................... 28

37 ....................................... 29

38–39 ................................. 30

40–50 ................................. 31

51 ....................................... 32

52–53 ................................. 33

54 ....................................... 34

55–56 ................................. 35

57–58 ................................. 36

59 ....................................... 37

60–73 ................................. 38

74–75 ................................. 39

76–77 ................................. 40

78–79 ................................. 41

80–95 ................................. 42

96–97 ................................. 43

98–99 ................................. 44

100–117 ............................. 45

118–119 ............................. 46

120–138 ............................. 47

139–157 ............................. 48

158–177 ............................. 49

178–197 ............................. 50

198–218 ............................. 51

219–258 ............................. 52

NUMBER OF UNITS TO BE INSPECTED

IN A MULTIFAMILY PROPERTY—Continued

Number of units in building

or group of similar buildings

Number of units

to be tested

259–299 ............................. 53

300–379 ............................. 54

380–499 ............................. 55

500–776 ............................. 56

777–1004 ........................... 57

1005–1022 ......................... 58

1023–1039 ......................... 59

1040 or more ..................... 5.8 percent of

the units.

(b) Paint inspections shall be

completed on testing combinations in

the selected units in accordance with

the requirements of § 37.32(c) except

that only one XRF reading is required

on each testing combination as long as

a minimum of 40 readings per testing

combination will be obtained in each

development. Each common area

accessible to children less than 6 years

of age, (i.e. lobby, laundry room) is

considered a room equivalent and shall

be tested.

(c) A minimum of 40 components, if

possible, of a given type shall be tested

within the total of all of the multifamily

dwelling units being tested.

(d) Test results. Lead-based paint is

considered to be present throughout the

development on a given component if

15 percent or more of the tested

components are positive. Lead-based

paint is not present if 100 percent of the

tested components are negative or if 100

percent of the tested components are

either negative or, if in the inconclusive

range, below 1.0 mg/cm 2. All other

cases require confirmatory laboratory

testing. If any laboratory results are 1.0

mg/cm 2 or greater or 0.5 percent by

weight or greater a positive result is

indicated. Test results below these

standards are negative. If less than 1
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29225

percent of similar components are

positive, the results shall be negative for

that component. In this case, the few

components that are positive shall be

monitored and/or controlled. If

laboratory test results conflict with XRF

results, the laboratory test results shall

be used.

§ 37.36 Paint inspection report.

A written paint inspection report

shall be provided to the owner in

accordance with the requirements of 40

CFR 745.228.

Subpart D—Paint Repair

§ 37.50 Requirements.

(a) De minimis level. Paint repair is

required if the area of the deteriorated

paint surface is more than:

(1) Ten square feet on an exterior

wall;

(2) Two square feet on a component

with a large surface area other than an

exterior wall including, but not limited

to, interior walls, ceilings, floors and

doors; or

(3) Ten percent of the total surface

area on an interior or exterior

component with a small surface area

including, but not limited to, window

sills, baseboards, and trim.

(b) Protective coverings. Before

starting paint repair, protective

coverings shall generally extend a

minimum of 5 feet out in all directions

from the surfaces being worked on to

protect the floor or ground from

contamination.

(c) Occupant protection. If units are

occupied while undergoing paint repair,

occupants and their belongings shall be

protected from lead-based paint hazards

associated with paint repair. Occupant

relocation is not required. Occupants

must not enter spaces undergoing paint

repair until cleanup is completed.

Personal belongings that are in work

areas must be relocated or otherwise

protected from contamination. During

interior paint repair involving more

than 2 square feet of deteriorated paint

in a room, dust must be contained to the

room or work area by installing an

airlock flap or comparable device. To

avoid temporary relocation, an

individual or firm conducting paint

repair shall ensure that occupants have

safe uncontaminated access to sleeping

areas, bathroom and kitchen facilities,

and entryways after work hours. Work

areas shall be secured against entry

during non working hours.

(d) Surface preparation. Before

repainting deteriorated paint surfaces,

all loose paint and other material shall

be removed from the surfaces to be

treated, as follows:

(1) Acceptable methods for preparing

the surface include wet scraping, and

wet sanding. Dry scraping or manual or

power sanding are acceptable if

performed in conjunction with a HEPA

vacuum filter attachment to the tool

operated according to the

manufacturer’s instructions.

(2) Dry scraping/sanding unassisted

with HEPA shall be used only when wet

scraping/sanding cannot be performed

safely, such as when preparing surfaces

near electrical circuits.

(3) Before repainting the prepared

surface, it shall be cleaned to remove

dust, paint chips, and surface

contaminants that may prevent proper

adhesion of paint coatings.

(e) Prohibited methods of paint

removal. The paint removal methods

specified in § 37.80(b) shall not be used

to remove paint known or suspected to

be lead-based paint. All paint that has

not been tested must be assumed to be

lead-based paint.

(f) Repainting. Paint repair shall

include the application of new paint.

All paint shall be applied in accordance

with the manufacturer’s

recommendations.

(g) Modified Cleanup. (1) General.

Modified cleanup is acceptable in units

where only paint repair has occurred,

and shall not begin until one hour after

paint repair has been completed.

(2) Required practices. Modified

cleanup shall include the following

practices:

(i) The protective coverings shall be

carefully removed to control the spread

of dust;

(ii) All hard, interior uncarpeted

surfaces in the area of the repair shall

be wet washed with a lead specific

detergent or equivalent. Floors within at

least 10 feet of the repaired surface shall

be wet washed. For all other surfaces to

be cleaned, wet washing must generally

extend a minimum of 5 feet in all

directions from the repaired surface and

shall include walls, window sills and

other horizontal surfaces excluding

ceilings, unless they have been repaired.

Cleanup of adjacent rooms is not

required, except where paint repair has

occurred at or near door openings to

those rooms; and

(iii) If the floor is carpeted it shall be

cleaned with a HEPA vacuum equipped

with a beater-bar, if available. If a HEPA

vacuum is not available, a standard

vacuum cleaner shall be used with a

high efficiency filter bag, if available.

(h) Waste handling. Waste from paint

repair shall be enclosed in a way that

will prevent recontamination of the

interior or exterior of the residential

property.

Subpart E—Interim Controls

§ 37.60 Purpose and applicability.

Interim control measures include

paint stabilization, treatments for

friction and impact surfaces, dust

control, and lead-contaminated soil

control. Interim controls may be

performed in combination with more

extensive, permanent abatement

methods.

§ 37.62 Supervision of interim control

workers.

Workers performing interim control

treatments shall be trained in

accordance with 29 CFR 1926.59 and

supervised by an abatement supervisor

certified in accordance with 40 CFR

745.226. The Secretary may establish

temporary alternative qualifications for

interim control supervisors if it is

determined that the supply of certified

abatement supervisors is insufficient.

§ 37.64 General requirements.

(a) Acceptable methods identified by

risk assessor. If a risk assessment has

been performed, only those interim

control methods identified as acceptable

methods in the risk assessment report

shall be used to control identified

hazards.

(b) Prohibit methods of paint removal.

The paint removal methods specified in

§ 37.80(b) shall not be used.

(c) Occupant protection. Occupants of

dwelling units where interim controls

are being performed shall be protected

during the course of the work in

accordance with the requirements of

subpart G of this part.

§ 37.66 Requirements for paint

stabilization controls.

(a) General. Interim control treatments

used to stabilize deteriorated lead-based

paint on surfaces other than friction or

impact surfaces shall be performed in

accordance with the requirements of

this section. Interim control treatments

of intact, factory applied prime coatings

on metal surfaces are not required.

Finish coatings on such surfaces shall

be treated by interim controls if required

by these regulations.

(b) De minimis level. Interim controls

are required if the area of the

deteriorated paint surface is more than:

(1) Ten square feet on an exterior

wall;

(2) Two square feet on a component

with a large surface area other than an

exterior wall including, but not limited

to, interior walls, ceilings, floors and

doors; or

(3) Ten percent of the total surface

area on an interior or exterior

component with a small surface area
29226 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

including, but not limited to, window

sills, baseboards and trim.

(c) Repair substrate. Physical defects

in the substrate or component that

threaten the integrity of the stabilization

treatment shall be permanently

repaired, as follows, prior to treating the

surface. Examples of defective substrate

conditions include: dry-rot, rust

moisture, crumbling plaster, missing

hardware, and siding or other

components that are not securely

fastened:

(1) If a current risk assessment or

paint inspection has been performed, all

physical defects in the substrate of

surfaces with deteriorated lead-based

paint that are listed in the risk

assessment report shall be repaired.

(2) If no information on lead content

is available, all readily observable

substrate defects in surfaces with

deteriorated paint shall be corrected.

(d) Surface preparation. (1) Before

recoating deteriorated paint, all loose

paint and other material shall be

removed from the surface to be treated.

Acceptable methods for preparing the

surface to be treated include wet

scraping, wet sanding, and power

sanding performed in conjunction with

a HEPA vacuum filter attachment

operated according to manufacturer’s

instructions.

(2) Dry scraping/sanding shall be used

only when wet scraping/sanding cannot

be performed safely, such as when

preparing surfaces near electrical

circuits.

(e) Surface cleaning. Before applying

protective coatings to the prepared

surface, the surface shall be cleaned to

remove dust, paint chips, and surface

contaminants that may prevent proper

adhesion of coatings. Any paint

remaining on the surface shall be

deglossed if necessary to ensure proper

adhesion of coatings.

(f) Coating the deteriorated paint.

Paint stabilization shall include the

application of a new protective coating.

The surface substrate shall be dry and

protected from future moisture damage

prior to application of a protective

coating. All protective coatings shall be

applied in accordance with the

manufacturer’s recommendations.

§ 37.68 Requirements for friction and

impact surface interim controls.

(a) General. Interim control treatments

used to control lead-based paint on

friction or impact surfaces shall be

performed in accordance with the

requirements of this section.

(b) Affected components. Building

components that may contain friction or

impact surfaces include the following:

window systems; doors; stair treads and

risers; baseboards and outside corners;

drawers and cabinets; and porches,

decks, interior floors, and any other

painted surfaces that are abraded,

rubbed, or impacted.

(c) Treatments for friction surfaces.

Interim control treatments for friction

surfaces with lead-based paint shall

eliminate friction points or treat the

friction surface so that lead-based paint

is not subject to abrasion. Examples of

acceptable treatments include rehanging

and/or planing doors so that the door

does not rub against the door frame, and

installing window channel guides that

reduce or eliminate abrasion of painted

surfaces. Lead-based paint on stair

treads and floors shall be protected with

a durable cover or coating that will

prevent abrasion of the painted surfaces.

Examples of acceptable materials

include carpeting, tile, sheet flooring

and some encapsulants.

(d) Treatments for impact surfaces. (1)

Interim control treatments for impact

surfaces with lead-based paint shall

protect the lead-based paint on the

surface from impact. Acceptable

methods include:

(i) Treatments that eliminate impact

with the lead-based paint surface, such

as a door stop to prevent a door from

striking a wall or baseboard covered

with lead-based paint.

(ii) Treatments that cover the leadbased paint surface with a material that

protects the paint from impact, such as

installing plastic corner strips or corner

beads to protect an outside corner

covered by lead-based paint from

impact.

(2) Covering an impact surface with a

coating or other treatment that fails to

protect lead-based paint from impact or

abrasion, such as painting over the

surface, shall not constitute an interim

control for impact or friction surfaces.

§ 37.70 Requirements for leadcontaminated dust control.

(a) General. Interim control treatments

used to control lead-contaminated dust

shall be performed in accordance with

the requirements of this section. If a risk

assessment was performed, dust control

shall be accomplished in locations

specified for dust removal in the risk

assessment report. If no risk assessment

was performed, dust control shall be

accomplished in rooms, dwelling units,

or common areas assumed to have leadcontaminated dust.

(b) Surfaces to be cleaned. Dust

control shall involve a thorough

cleaning of all horizontal surfaces in the

affected room, dwelling unit, or

common area.

(c) HEPA vacuuming. Horizontal

surfaces in the dust removal area shall

be cleaned by first HEPA vacuuming

these surfaces until surface dust is no

longer visible.

(d) Wet cleaning. After all horizontal

surfaces in the dust removal area have

been HEPA vacuumed, all hard

horizontal surfaces shall be wet cleaned

with a lead-specific detergent solution

or equivalent.

(e) Surfaces covered by carpeting or

rugs. (1) The floor surface under rugs

and carpeting shall be HEPA vacuumed

where feasible.

(2) Rugs and unattached carpets

located in areas of the dwelling unit

with lead-contaminated floor dust shall

be HEPA vacuumed on both sides. If

rugs or carpets will be removed from the

dwelling for off-site cleaning, workers

shall take protective measures to

prevent the spread of dust during the

removal of these materials. For example,

rugs, carpets, and padding can be

misted to reduce dust generation during

removal and the items being removed

can be wrapped and sealed before

removal from the work area.

(3) Attached carpets that are

identified as hazards shall be HEPA

vacuumed, cleaned, or replaced. Floors

under such carpets are not required to

be vacuumed.

(f) Work practices. Dust removal shall

begin on the horizontal surfaces in the

top rear room in the dwelling or

common area and proceed forward and

down through the work area.

§ 37.72 Requirements for leadcontaminated bare soil interim controls.

(a) General. Interim control treatments

of lead-contaminated soil shall be

performed in accordance with the

requirements of this section:

(1) Interim control treatments shall be

used only to control lead-contaminated

bare soil that does not contain a lead

concentration greater than 5,000 ug/g

(micrograms per gram). In children’s

play areas interim controls are the

minimum requirement for soil lead

concentrations from 400 to 5000 ug/g. In

other areas interim controls are the

minimum requirement for soil lead

concentrations from 2000 to 5000 ug/g.

(2) Soil with a lead concentration

greater than 5,000 ug/g of lead shall be

abated in accordance with the

requirements of subpart F of this part.

(b) Acceptable interim control

methods for lead-contaminated soil are

impermanent surface coverings and

land use controls.

(c) Impermanent surface coverings.

Impermanent surface coverings may be

used to treat lead-contaminated soil if

applied in accordance with the

following requirements. Examples of

acceptable impermanent coverings
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29227

include gravel, bark, sod, and artificial

turf:

(1) If the area to be treated is heavily

traveled, impermanent surface coverings

that are not designed to withstand heavy

traffic, such as grass, shall not be used.

(2) Coverings such as bark or gravel

shall be applied in a thickness not less

than six inches.

(3) The covering material shall not

contain more than 200 ug/g (micrograms

per gram) of lead.

(4) Adequate controls to prevent

erosion shall be used in conjunction

with impermanent coverings.

(d) Land use controls. (1) Land use

controls may be used to reduce

exposure to lead-contaminated soil by

effectively preventing uncontrolled

access to areas with lead-contaminated

soil. Examples of land use controls

include: fencing, warning signs, and

landscaping.

(2) Land use controls shall be

implemented only if residents have

reasonable alternatives to using the area

to be restricted.

(3) If land use controls are used for a

soil area that is subject to erosion,

measures shall be taken to contain the

soil and control dispersion.

Subpart F—Abatement

§ 37.80 Requirements for abatement of

lead-based paint or lead-based paint

hazards.

(a) General. Abatement shall

permanently eliminate, enclose, or

encapsulate any lead-based paint or

lead-based paint hazards in accordance

with the requirements of this subpart.

Abatement of intact, factory applied

prime coatings on metal surfaces is not

required. Finish coatings on such

surfaces shall be abated if required by

these regulations. Acceptable methods

of abatement include, but are not

limited to, component replacement,

enclosure, removal, and encapsulation.

For the purpose of this subpart

permanent means a minimum effective

life of 20 years.

(b) Prohibited methods of paint

removal. The following paint removal

methods shall not be used to remove

lead-based paint:

(1) Open flame burning or torching;

(2) Machine sanding or grinding

without a HEPA exhaust control;

(3) Uncontained hydroblasting or high

pressure wash;

(4) Abrasive blasting or sandblasting

without HEPA exhaust control;

(5) Heat guns operating above 1100

degrees Fahrenheit;

(6) Chemical paint strippers

containing methylene chloride; and

(7) Dry scraping or dry sanding,

except in conjunction with heat guns or

around electrical outlets or to remove

small amounts of deteriorated paint. A

small amount of deteriorated paint is

less than 10 square feet for exterior

components with large surface areas

(such as walls), less than 2 square feet

for interior components with large

surface areas (such as walls, ceilings,

floors, or doors), and less than 10

percent of the total surface area of

interior and exterior components with

small surface areas (such as window

sills, baseboards, and trim).

(c) Encapsulation. Encapsulation

treatments used in accordance with the

following requirements constitute an

acceptable method of abatement:

(1) The encapsulating product or

system shall be warranted by the

manufacturer to perform for a minimum

of 20 years as a durable barrier between

lead-based paint and the environment in

the type of application planned.

(2) Encapsulating products or systems

shall be used in a manner consistent

with the manufacturer’s

recommendations.

(3) Surfaces treated by encapsulation

shall be monitored as required by

subpart J of this part.

(4) Any failures of the encapsulant

shall be repaired immediately in

accordance with the manufacturer’s

recommendations.

(d) Occupant protection and worksite

preparation. Occupants of dwelling

units where abatement work is being

performed shall be protected during the

course of abatement activities in

accordance with the requirements of

subpart G of this part.

(e) Cleanup. Cleanup of the work area

following the completion of abatement

activities shall be performed in

accordance with the requirements of

subpart H of this part.

(f) Clearance. Upon completion of

abatement work and cleanup, clearance

testing shall be conducted in accordance

with the requirements of subpart I of

this part.

§ 37.82 Soil abatement.

Bare soil surrounding a residential

property that is determined to have a

lead concentration that exceeds 5,000

ug/g (micrograms per gram) shall be

abated. Acceptable methods of soil

abatement include, but are not limited

to, removal and paving.

Subpart G—Occupant Protection and

Worksite Preparation

§ 37.90 Purpose and applicability.

This subpart establishes procedures

for protecting dwelling unit occupants

and the environment from exposure to

or contamination from leadcontaminated materials during leadbased paint hazard reduction activities.

The requirements established by this

subpart are applicable to all lead-based

paint hazard reduction activities

required by part 36 of this subtitle.

§ 37.92 Requirements for occupant

protection.

(a) General requirements. Appropriate

action shall be taken to protect

occupants from lead-based paint

hazards associated with lead-based

paint hazard reduction activities.

(b) Occupant access to worksite.

Occupants must not be permitted to

enter the worksite during lead-based

paint hazard reduction activities, unless

such occupants are employed in the

conduct of the interim controls or

abatement at the worksite. Occupant reentry into the worksite is permitted only

after lead-based paint hazard reduction

work has been completed and the

dwelling unit has passed a clearance

examination performed in accordance

with the requirements of subpart I of

this part. Occupants in dwelling units

where only paint repair work has been

performed may re-enter after that work

and cleanup have been completed. No

clearance examination is required for

paint repair.

(c) Occupant relocation requirements.

Occupants of a dwelling unit shall be

temporarily relocated during lead-based

paint hazard reduction activities unless

the lead-based paint hazard control

activities being performed in the

dwelling unit qualify for one of the

exceptions provided in paragraph (d) of

this section. The following requirements

apply to occupant relocation:

(1) Occupants shall be relocated

before lead-based paint hazard

reduction activities begin.

(2) Occupants shall be relocated to a

suitable, decent, safe, and sanitary

dwelling unit that is free of lead-based

paint hazards.

(d) Exceptions to occupant relocation

requirement. Occupant relocation is not

required during lead-based paint hazard

reduction activities if the work to be

performed meets at least one of the

following three exceptions:

(1) Only the exterior of the dwelling

unit is treated; and the following two

conditions are met:

(i) Windows, doors, and other

openings that are in the vicinity of the

worksite are sealed during hazard

control work and cleanup to prevent

lead-contaminated dust from entering

the dwelling unit.

(ii) Entry and egress free of leadcontaminated dust and debris is

provided.
29228 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

(2) Treatment will not disturb leadbased paint or lead-contaminated dust;

or

(3) Treatment of the interior will be

completed within 5 calendar days, and

all of the following conditions are met:

(i) The hazard reduction work area is

sealed in a manner that prevents the

release of leaded dust and debris into

other areas.

(ii) At the end of the each day of

hazard reduction activities, the area

outside the containment area that is

within at least 10 feet of the

containment area shall be properly

cleaned to remove any leadcontaminated dust or debris that may be

present.

(iii) Occupants have safe access to

sleeping areas, bathroom and kitchen

facilities, and entryways after work

hours.

(iv) Treatment does not create other

safety hazards (i.e. exposed electrical

wiring or holes in the floor).

(v) The work area is secured against

entry during non-working hours until

the dwelling unit passes a clearance

exam in accordance with subpart I.

When paint repair only is being

performed the work area shall be

secured against entry during nonworking hours until such work is

complete.

(e) Protection of occupant belongings.

Property owners shall protect tenants’

personal belongings from contamination

by lead contaminated dust and debris

while lead-based paint hazard reduction

work and cleanup are being performed.

Personal belongings shall be removed

from the containment area. Large items

that cannot be removed shall be covered

with exposed seams taped shut.

§ 37.94 Worksite preparation.

(a) General requirements. The

worksite for lead-based paint hazard

reduction activities shall be prepared to

prevent the release of lead-contaminated

dust. Worksite preparation shall ensure

that lead-contaminated dust, lead-based

paint chips and other debris from

hazard reduction activities are

contained within the worksite until they

can be safely removed. The appropriate

worksite preparation shall be

determined by a certified risk assessor,

a certified abatement supervisor, or a

trained lead-based paint planner/

designer. Any of the seven levels of

containment or combination of levels

described in the HUD Guidelines is

permissible.

(b) General preparation. (1) Any large

debris or loose paint chips shall be

removed from the worksite before the

containment area is constructed.

(2) During the construction of the

containment area and the duration of

lead-based paint hazard reduction

activities, workers shall follow practices

that minimize the spread of lead

contaminated dust and debris.

(3) Warning signs shall be required at

entry to the room where lead hazard

reduction activities are conducted when

occupants are present. Warning signs

shall be required at main and secondary

entryways to the building when

occupants have been relocated. If

exterior lead hazard reduction activities

are conducted warning signs shall be

required on the building and at a 20 foot

perimeter around the building (or less if

the distance to the next building or the

sidewalk is less than 20 feet).

Subpart H—Cleanup

§ 37.110 Purpose and applicability.

This subpart establishes procedures to

assure that lead-contaminated debris

and dust resulting from lead-based paint

hazard reduction activities are properly

removed to render residential properties

acceptable for clearance and occupancy.

The requirements are applicable to all

lead-based paint hazard reduction

activities required by part 36 of this

subtitle except paint repair.

§ 37.112 Requirements for daily cleanup.

(a) General. Daily cleanup shall occur

at the end of each workday after all

lead-based paint hazard reduction

activities have ceased in occupied units

or in units where occupants return

daily, and where exterior lead-based

paint hazard reduction activities have

occurred. Daily cleanup is not required

in vacant units:

(1) The horizontal surfaces (excluding

ceilings) in all containment areas in

which lead-based paint hazard

reduction activities are taking place

shall be cleaned in accordance with the

requirements of paragraph (b) of this

section, as well as, any vertical surface

within 5 feet of treated surfaces.

(2) If all lead-based paint hazard

reduction activities are completed by

the end of the first workday, daily

cleanup is not required.

(b) Required practices. Daily cleanup

shall include the following practices:

(1) Debris shall be wrapped in a

protective covering with all seams taped

or placed in closed durable containers

resistant to puncture.

(2) Workers shall use cleaning

practices that minimize the generation

of airborne dust, such as misting dust

and debris with water prior to cleaning.

Carpets need not be misted prior to

vacuuming. A system of cleaning that

involves HEPA vacuuming, wet washing

with a lead-specific detergent or

equivalent and then HEPA vacuuming

again has been used effectively to

remove lead-contaminated dust.

(3) The containment area’s protective

coverings shall be examined and any

defects repaired.

(4) Exterior areas affected by leadbased paint hazard reduction activities

shall be examined daily for leadcontaminated debris which shall be

wrapped, secured, and stored until

removal.

§ 37.114 Requirements for final cleanup.

(a) General. The work area and any

surrounding areas where leadcontaminated dust or debris may be

present including window troughs shall

be cleaned prior to performing a

clearance examination.

(b) Timing. Final cleanup shall begin

no sooner than one hour after active

lead-based paint hazard control

activities have ceased, but prior to

repainting or sealing floors or other

surfaces.

(c) Required practices. Required

practices for final cleanup are as

follows:

(1) Debris shall be wrapped in a

protective covering with all seams taped

or placed in closed durable containers

resistant to puncture. The debris shall

then be removed from the work area and

stored in a secure location until

removal.

(2) Dust and debris shall be removed

in a manner which effectively avoids

contamination of the residential

property.

(3) Workers shall use cleaning

practices that effectively remove leadcontaminated dust and that minimize

the generation of airborne dust. For

example, a system of cleaning that

involves HEPA vacuuming, wetwashing with a lead-specific detergent

or equivalent and then HEPA

vacuuming again has been used

effectively to remove lead-contaminated

dust.

(4) Protective coverings used to

contain or collect dust and debris

within the work area shall be removed

in a manner that prevents the dispersion

of lead-contaminated dust and debris.

(5) Exterior areas affected by leadbased paint hazard reduction activities

shall be visually examined for lead

contaminated debris. Any such debris

shall be wrapped, secured, and stored

until removal.

(d) Sealing treated surfaces. Treated

surfaces shall be finished by painting,

varnishing, or an equivalent coating,

after final cleanup is completed and

before a clearance examination is

performed.
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29229

Subpart I—Clearance

§ 37.120 Purpose and applicability.

The purpose of clearance

examinations is to assure that all leadbased paint hazard reduction activities

have been properly completed.

§ 37.122 General requirements.

(a) Qualified examiner. Clearance

examinations shall be performed by a

risk assessor or inspector certified in

accordance with the requirements of 40

CFR 745.226. The risk assessor or

inspector must not be affiliated with,

paid, employed, or otherwise

compensated by the entity performing

the lead-based paint hazard reduction

and the cleanup.

(b) Timing. The clearance

examination shall begin no earlier than

one hour after the completion of final

cleanup as performed in accordance

with subpart H of this part and any

finish coating of surfaces.

§ 37.124 Unit selection.

(a) Single-family properties. In singlefamily properties each dwelling unit,

and the worksite shall be examined.

(b) Multifamily properties. In

multifamily properties with less than 21

units which have undergone similar

lead-based paint hazard reduction

activities, all units and common areas

must be examined. In properties with 21

or more units, a random sample may be

selected for examination in accordance

with the requirements of subpart C of

this part. If any dwelling unit in this

sample fails either the visual

examination required in § 37.126 or the

dust sampling required in § 37.128, a

clearance examination of all units shall

be performed.

§ 37.126 Requirements for visual

examination.

(a) General. A visual examination of

the residential property shall be

performed before dust and soil samples

(if required) are collected.

(b) Examining hazard control work.

The clearance examiner shall confirm

that all lead-based paint hazard controls

were properly completed by visual

examination and reference to such

documents as the risk assessment

report, the specifications for hazard

reduction, or a report by the abatement

supervisor.

(c) Visual Examination for dust and

debris. (1) During the visual

examination, the clearance examiner

shall also inspect the dwelling unit for

visual evidence of dust and debris. The

interior and exterior of the residential

property shall be free of waste, debris,

paint chips, and settled dust.

(2) If visible dust or debris are found

during the visual examination, these

areas of the dwelling unit shall be

determined to fail the visual

examination. These areas shall be

recleaned in accordance with the

requirements of § 37.130. Any

uncorrected hazards shall be completed

before final clearance is established. All

units passing clearance must be free of

lead-based paint hazards.

§ 37.128 Requirements for dust testing.

(a) General requirements. (1) Dust

samples from dwelling units and

common areas shall be collected

according to the procedures in this

section. Dust testing shall not begin

until the dwelling unit passes the visual

examination.

(2) If the test results exceed the

following standards, the dwelling unit

or common area fails the clearance

examination and the actions required by

§ 37.128 shall be performed:

(i) Hard floors—100 μg/ft 2

(micrograms of lead per square foot).

(ii) Carpeted floors—100 μg/ft 2.

(iii) Interior window sills—500 μg/ft 2.

(b) Dust sampling requirements. (1)

The minimum number and location of

clearance dust samples shall be taken

according to Table 1: Minimum Number

and Location of Clearance Dust Samples

for All Abatement and Interim Control

Work; or

(2) Composite dust samples from

multiple rooms in the same dwelling

unit are acceptable if the rooms have

undergone similar lead-based paint

hazard control treatments and cleanup.

The minimum number and location of

composite clearance dust samples shall

be taken according to Table 1 at the end

of this section.

TABLE 1.—MINIMUM NUMBER AND LOCATION OF CLEARANCE DUST SAMPLES FOR ABATEMENT AND INTERIM CONTROL

WORK

Clearance

category Category description Number and location of single-surface wipesamples in each room 1 Number and location of composite wipe samples

1 ................. Interior treatments ......... Two dust samples from at least four rooms in

dwelling unit (whether treated or untreated)—a

total of 8 samples per unit.

Three composite samples for every batch of four

rooms (whether treated or untreated):

No containment within

dwelling unit.

• One interior window sill ...................................... • One floor composite with one subsample from

each room.

• One floor and ..................................................... • One interior window sill composite with one

subsample from each room with windows, and

• For common areas, one for every 2,000 ft2 of a

common area room floor (if present).

• For common areas, one floor subsample for

every 2,000 ft2 (if present); up to 8,000 ft2 for

each composite.

2 ................. Interior treatments with

containment.

Same as Category 1, but only in every treated

room (at least four rooms) and.

Same as Category 1 but only in every treated

room and,

One floor sample outside the containment area

but within 10 feet of the airlock to determine the

effectiveness of the containment system. This

extra single-surface sample is required in 20

percent of the treated dwelling units in a multifamily property and all single-family properties.

One single-surface floor sample outside the containment area but within 10 feet of the airlock to

determine the effectiveness of the containment

a system. (This extra single-surface sample is

required in 20 percent of the treated dwelling

units in a multifamily property and all singlefamily properties.)

• For treated Common Areas, one floor sample

for every 2,000 ft2 and one floor sample outside

containment.

• For Common Areas, one floor subsample for

every 2,000 ft2 (up to 8,000 ft2 for each composite) and one floor sample outside containment.

3 ................. Exterior treatments ........ Two dust samples as follows: Two dust samples as follows:
29230 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

TABLE 1.—MINIMUM NUMBER AND LOCATION OF CLEARANCE DUST SAMPLES FOR ABATEMENT AND INTERIM CONTROL

WORK—Continued

Clearance

category Category description Number and location of single-surface wipesamples in each room 1 Number and location of composite wipe samples

• At least one dust sample on a horizontal surface in part of the outdoor living areas (e.g., a

porch floor, balcony, or exterior entryway), and.

• One composite on horizontal surfaces of the

outdoor living areas (e.g., a porch floor, balcony

or exterior entryway), if any and

• One interior window sill sample on each floor

where exterior work was performed. An additional sill sample should be collected from a

few lower floors to determine if sills below the

area were contaminated by the work above.

• One interior window sill composite for every 4

floors where exterior work was performed, including lower floors where exterior work was

not done, if present.

4 ................. Soil Treatment ............... One sample from the entryway .............................. One sample from the entryway.

1A room includes a hallway or a stairway. If no window is present, collect just one floor sample. When a closet is treated, the room to which it

is attached should be tested. A closet is not considered to be a separate room.

§ 37.130 Required actions for dwelling

units and common areas that fail dust tests.

(a) If a single-surface dust sample for

a dwelling unit or common area fails, all

components that the sample represents

shall be re-cleaned in accordance with

§ 37.114 until they pass a dust clearance

test. If single surface samples in only

one room or on one type of component

fail, only that room or component shall

be recleaned and be retested repeatedly

until it passes a dust clearance test.

(b) If composite surface dust samples

for a dwelling unit or common area fail,

all surfaces represented by that dust

sample shall be re-cleaned in

accordance with § 37.114 or tested

individually to determine which

surfaces fail and must therefore be

recleaned. The areas that fail shall be

recleaned and retested repeatedly until

they pass the clearance test.

§ 37.132 Requirements for soil testing.

(a) General. Clearance soil samples

shall be taken if exterior lead-based

paint hazard reduction activities have

been performed. If the exterior leadbased paint hazard reduction activities

involve covering bare soil only,

clearance soil samples are not required.

Only a visual examination is required in

accordance with § 37.126(c).

(b) Requirements. The results of soil

samples shall be collected and analyzed

in accordance with the following

requirements:

(1) Soil testing shall not begin until

the residential property passes the

visual examination.

(2) Soil sampling may be performed

on a random sample of soil locations

around a multifamily complex of 10 or

more buildings.

(3) All soil samples shall be

composite samples of bare soil only.

(4) The number and location of

clearance soil samples shall be taken in

accordance with the following

specifications:

(i) One composite sample shall be

collected around the perimeter of the

building. If only selected faces of the

building were treated, the subsamples

should come from those faces.

(ii) A second composite sample shall

be collected from nearby play areas, if

any.

(6) If the test results for soil samples

exceed the following standards, the

worksite fails the clearance examination

and the actions required by § 37.134

shall be performed:

(i) 400 ug/g (micrograms per gram) in

children’s play areas; or

(ii) 2,000 ug/g (micrograms per gram)

in other areas.

§ 37.134 Required actions for properties

that fail soil tests.

If the amount of lead in bare soil is

above 400 ppm in small, compact play

areas, above 2000 ppm otherwise, and at

least 2 square feet of soil are bare, soil

shall be re-treated using either interim

controls or abatement in accordance

with subparts E and F of this part.

Subpart J—Monitoring

§ 37.140 Exemptions.

Monitoring is not required when

either of the following has occurred:

(a) The results of both a risk

assessment and a paint inspection

performed in accordance with subparts

B and C of this part indicate that no

lead-based paint is present in the

dwelling units, common areas, or on

exterior surfaces, and soil and dust lead

levels are below applicable standards.

(b) All building components with

lead-based paint have been removed

and/or all lead-based paint has been

removed, and a risk assessor determines

that soil and dust lead levels are below

applicable standards.

§ 37.142 General requirements.

Monitoring includes two types of

procedures: Visual surveying and

reevaluation.

§ 37.144 Visual survey.

(a) Objectives. The visual survey shall

identify:

(1) Any deteriorated paint surfaces

with known or suspected lead-based

paint.

(2) Any failures of prior lead-based

paint hazard reduction work.

Encapsulation and enclosure treatments

that are no longer securely attached and

sealed and deteriorated paint repairs are

examples of failed treatments.

(3) Structural or plumbing problems,

including water leaks, that threaten the

integrity of any remaining known or

suspected lead-based paint or any

encapsulation or enclosure treatments.

(b) Schedule. Property owners or

other responsible entities shall conduct

annual visual surveying of dwelling

units, common areas, and the worksite,

beginning no later than 12 months after

the completion of the initial lead-based

paint hazard evaluation and/or hazard

reduction activities.

(1) If interim controls were used on

bare soil, visual surveying must be

performed three months after the

controls are implemented to verify the

efficacy of the controls and then

annually thereafter.

(2) If encapsulation was used as a

hazard control the visual survey shall be

conducted at one month, six months,

and annually thereafter.

(3) If the owner receives complaints

from residents about potential leadbased paint hazards, if the dwelling unit

changes occupants or becomes vacant,

or if significant damage occurs that

could affect the integrity of control

treatments, visual surveying of affected

surfaces shall be conducted promptly.

(c) Correction of identified hazards. If

any of the conditions listed in

§ 37.144(b) are identified during visual

surveying, these conditions shall be

promptly and safely corrected.
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules 29231

§ 37.146 Reevaluation.

(a) General. Reevaluation is a

modified risk assessment/clearance

examination consists of a visual

assessment of painted surfaces and prior

lead-based paint hazard reduction work,

and limited dust and soil sampling.

(b) Objectives. Reevaluations shall be

conducted as required to identify:

(1) Deteriorated paint surfaces with

known or suspected lead-based paint;

(2) Deteriorated or failed interim

controls of lead-based paint hazards or

encapsulation or enclosure treatments;

(3) Lead-contaminated dust;

(4) New bare soil with lead levels

above applicable standards.

(c) Certified risk assessor.

Reevaluations shall be performed by

risk assessors certified in accordance

with 40 CFR 745.226. Certified

inspector technicians may conduct

environmental sampling under the

supervision of a certified risk assessor.

(d) Scheduling. (1) Reevaluations

shall be conducted in accordance with

the schedule in Table 1, Standard

Reevaluation Schedule, in this section.

Reevaluation intervals are expressed in

months from the date the risk

assessment was completed. Initial and

follow-up reevaluations shall occur no

later than the deadlines shown in Table

1, Standard Reevaluation Schedule.

(2) When more than one reevaluation

schedule applies, the more stringent

schedule shall be observed.

(3) If a dwelling unit, common area,

or worksite fails a reevaluation, a new

reevaluation schedule shall be initiated.

The initial evaluation results shall

dictate which reevaluation schedule

shall be applied. If a dwelling unit fails

two consecutive reevaluations, the

reevaluation interval shall be reduced

by half and the number of reevaluations

shall be doubled.

TABLE 1.—STANDARD REEVALUATION SCHEDULE

Schedule Evaluation results Action taken

Reevaluation frequency

and duration

Visual survey (by owner or owners

representative)

1 .............. Combination risk assessment/paint

inspection finds no leaded dust or

soil and no lead-based paint.

None ................................................... None ........ None.

2 .............. No Lead-based paint hazards found

during risk assessment conducted

before hazard control or at clearance (hazards include dust and

soil).

None ................................................... 3 Years .... Annually and whenever information

indicates a possible problem.

3 .............. The average of leaded dust levels on

all floors or interior window sills

sampled exceeds the applicable

standard, but by less than a factor

of 10.

A. Interim controls and/or hazard

abatement (or mixture of the two),

including, but not necessarily limited to dust removal. This schedule

does not include window replacement.

1 Year, 2

Years.

Same as Schedule 2, except for

encapsulants. The first visual survey of encapsulants shall be done

one month after clearance; the second shall be done 6 months later

and annually thereafter.

B. Treatments specified in section A

plus replacement of all windows

with lead hazards.

1 Year ...... Same as Schedule 3A.

C. Abatement of all lead-based paint

using encapsulation or enclosure.

None ........ Same as Schedule 3A above.

D. Removal of all lead-based paint .... None ........ None.

4 .............. The average of leaded dust levels on

all floors or interior window sills

sampled exceeds the applicable

standard by a factor of 10 or more.

A. Interim controls and, or hazard

abatement (or mixture of the two),

including, but not necessarily limited to dust removal. This schedule

does not include window replacement.

6 Months,

1 Year,

2 Years.

Same as Schedule 3A.

B. Treatments specified in section A

plus replacement of all windows

with lead hazards.

6 Months,

2 Years.

Same as Schedule 3A.

C. Abatement of all lead-based paint

using encapsulation and enclosure.

None ........ Same as Schedule 3A.

D. Removal of all lead-based paint .... None ........ None.

5 .............. No leaded dust or leaded soil hazards identified, but lead-based

paint or lead-based paint hazards

are found.

A. Interim controls or mixture of interim controls and abatement (not

including window replacement).

2 Years .... Same as Schedule 3A.

B. Mixture of interim controls and

abatement, including window replacement.

3 Years .... Same as Schedule 3A.

C. Abatement of all lead-based paint

hazards, but not all lead-based

paint.

4 Years .... Same as Schedule 3A.

D. Abatement of all lead-based paint

using encapsulation or enclosure.

None ........ Same as Schedule 3A.

E. Removal of all lead-based paint .... None ........ None.

6 .............. Bare leaded soil exceeds standard,

but less than 5,000 ug/g.

Interim controls ................................... None ........ 3 months to check new ground cover,

then annually to identify new bare

spots.
29232 Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed Rules

TABLE 1.—STANDARD REEVALUATION SCHEDULE—Continued

Schedule Evaluation results Action taken

Reevaluation frequency

and duration

Visual survey (by owner or owners

representative)

7 .............. Bare leaded soil greater than or

equal to 5,000 ug/g.

Abatement (paving or removal or cultivation).None ........ None for removal, annually to identify

new bare spots or deterioration of

paving.

(e) Scope and dwelling unit selection.

Reevaluations of single-family and

multifamily properties shall be

performed as follows:

(1) In single-family properties and

multifamily properties of five units or

less, all dwelling units and common

areas, as well as the worksite, shall be

reevaluated.

(2) In multifamily properties of more

than five similar dwelling units, a

sample of dwelling units may be

selected for reevaluation. If sampling is

used, units to be reevaluated shall be

selected in accordance with the targeted

sampling requirements of § 37.10, or the

random sampling requirements of

§ 37.34. If possible, some of the units

selected shall be units not previously

evaluated. Common areas associated

with the units selected and the worksite

shall also be reevaluated.

(f) Protocol. Reevaluations shall be

performed in accordance with the

following requirements:

(1) A certified risk assessor shall

perform a visual assessment to identify

any deteriorated lead-based paint, any

failures of lead-based paint hazard

reduction activities, or any other leadbased paint hazards, as follows:

(i) The risk assessor shall review any

past risk assessment, paint inspection,

clearance, reevaluation reports, and any

other information describing the hazard

reduction activities in use.

(ii) A careful visual assessment of all

lead-based paint hazard reduction

activities and any known or suspected

lead-based paint shall then be

conducted to determine whether the

paint is still intact and the hazard

reduction activities are well maintained.

(iii) The visual assessment of the

worksite shall identify any new areas of

bare soil, as well as checking for any

failures of lead hazard reduction

activities performed for previously

contaminated soil.

(2) For deteriorated paint surfaces

identified during the visual assessment

for which reliable information about

lead content is unavailable, the risk

assessor shall measure the lead content

by XRF analyzer or paint chip

laboratory analysis performed in

accordance with the requirements of

§ 37.14, except as follows:

(i) If the owner or risk assessor

assumes that all such deteriorated

painted surfaces contain lead-based

paint, analysis of the paint’s lead

content is not required.

(ii) Testing is not required if the

surface area of deteriorated paint on a

single component does not exceed 10

square feet on exterior components with

large surface areas, 2 square feet on

interior components with large surface

areas, or 10 percent of the total surface

area of interior or exterior components

with small surface areas.

(3) If any hazard reduction activity is

failing (e.g. an encapsulant is peeling

away from the wall or a paint stabilized

surface is no longer intact) or

deteriorated lead-based paint is present,

the risk assessor shall determine

acceptable options for controlling the

hazard.

(4) Upon completion of the visual

assessment, if all lead-based paint

hazard reduction activities appear to be

in place and no deteriorated lead-based

paint is present, the risk assessor shall

begin dust sampling. If any lead-based

paint hazard reduction activities are not

in place or deteriorated lead-based paint

is present, the hazards shall be

controlled before any dust sampling

occurs.

(5) Dust sampling of dwelling units

and common areas shall be performed

as follows:

(i) For reevaluation, composite dust

sampling is permitted as a cost effective

method. At least two composite samples

shall be taken, one from floors and the

other from interior window sills. No

more than four subsamples shall be

collected for each composite sample. If

the dwelling unit contains both carpeted

and uncarpeted living areas, separate

floor samples are required from the

carpeted and uncarpeted areas.

(ii) Dust samples or subsamples shall

be collected from locations selected in

accordance with § 37.16.

(iii) If a dwelling unit or common area

is found to contain lead levels that

exceed the following standards, that

dwelling unit or common area shall be

cleaned in accordance with the

requirements of § 37.114.

(A) Hard floors—100 μg/ft2.

(B) Carpeted floors—100 μg/ft2.

(C) Interior window sills—500 μg/ft2.

(6) Soil testing shall be performed as

part of a reevaluation if new areas of

bare soil are identified during the visual

assessment. Soil samples shall be

collected from locations selected in

accordance with § 37.18. If the amount

of lead in soil is above 400 ppm in play

areas or above 2000 ppm in other areas,

and at least 2 square feet of soil are bare,

soil shall be treated using interim

controls or abatement in accordance

with subparts E and F of this part.

(7) If the visual assessment reveals

that the controls used for leadcontaminated soil (e.g., impermanent

coverings or land use controls) have

failed, more permanent soil treatments

that will effectively control these

hazards shall be performed. For

example, if the gravel used to cover an

area of contaminated soil is worn away

due to use or erosion, a more durable

surface covering such as artificial turf or

asphalt must be used.

(g) Reporting. The risk assessor shall

produce a written report documenting

the presence or absence of lead-based

paint hazards. The report shall:

(1) Identify any lead-based paint

hazards previously detected and

controlled and discuss the efficacy of

these interventions;

(2) Describe any new hazards and

present the owner with acceptable

control options and their accompanying

reevaluation schedules;

(3) Identify when the next

reevaluation will occur, if necessary.

(h) Completion of required

reevaluations. When all required

reevaluations are completed, the

dwelling unit is subject only to annual

visual surveys. However, if ownership

of the residential property is transferred,

a new reevaluation schedule must be

initiated.

Dated: December 15, 1995.

Henry G. Cisneros,

Secretary.

[FR Doc. 96–14101 Filed 6–6–96; 8:45 am]

BILLING CODE 4210–01–P