Lead; Fees for Accreditation of Training Programs and
Certification of Lead-based Paint Activities Contractors
[Federal Register: June 9, 1999 (Volume 64, Number 110)]
[Rules and Regulations]
[Page 31091-31099]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jn99-20]
[[Page 31091]]
_______________________________________________________________________
Part VII
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 745
Lead; Fees for Accreditiation of Training Programs and Certification of
Lead-based Paint Activities Contractors; Final Rule
[[Page 31092]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[OPPTS-62158A; FRL-6058-6]
RIN 2070-AD11
Lead; Fees for Accreditation of Training Programs and
Certification of Lead-based Paint Activities Contractors
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is issuing this final rule to establish fees for the
accreditation of training programs and certification of contractors
engaged in lead-based paint activities pursuant to section 402(a)(3) of
the Toxic Substances Control Act (TSCA). As specified in section
402(a)(3), EPA must establish and implement a fee schedule to recover,
for the U.S. Treasury, the Agency's cost of administering and enforcing
the standards and requirements applicable to lead-based paint training
programs and contractors engaged in lead-based paint activities.
Specifically, this rule establishes the fees to be charged in those
States and Indian country without authorized programs for training
programs seeking accreditation under 40 CFR 745.225, and for
individuals or firms engaged in lead-based paint activities seeking
certification under 40 CFR 745.226. About three-quarters of the
nation's housing stock built before 1978 (64 million homes) contains
some lead-based paint. When properly maintained and managed, this paint
poses little risk. If improperly managed, chips and dust from this
paint can create a health hazard. Recent studies indicate that nearly
one million children have blood-lead levels above safe limits; the most
common source of lead exposure in the United States is lead-based
paint. Today's rule supports the effort of 40 CFR part 745, subpart L
to ensure that contractors claiming to know how to inspect, assess or
remove lead-based paint, dust or soil are well qualified, trained and
certified to conduct these activities. This final rule is based on a
proposal published in the Federal Register of September 2, 1998.
DATES: The requirements in this final rule will take effect on June 11,
1999. In accordance with 40 CFR 23.5, this rule shall be promulgated
for purposes of judicial review at 1 p.m. Eastern Standard Time on June
11, 1999.
FOR FURTHER INFORMATION CONTACT: For general information contact:
Christine M. Augustyniak, Associate Director, Environmental Assistance
Division (7408), Rm. E-543B, Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460;
telephone numbers: 202-554-1404 and TDD: 202-554-0551; e-mail address:
TSCA-Hotline@epa.gov.
For technical information contact: Mike Wilson, Project Manager,
National Program Chemicals Division (7404), Office of Pollution
Prevention and Toxics, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460; telephone number: 202-260-4664; fax number: 202-
260-0770; e-mail address: wilson.mike@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Does this Action Apply to Me?
You may be potentially affected by this action if you operate a
training program required to be accredited under 40 CFR 745.225, or if
you are a professional (individual or firm) who must be certified to
conduct lead-based paint activities in accordance with 40 CFR 745.226.
Potentially affected categories and entities may include:
------------------------------------------------------------------------
Examples of
Type of Entity SIC Code Entities
------------------------------------------------------------------------
Lead abatement professionals 1799, 8734 Workers,
supervisors,
inspectors, risk
assessors and
project designers
engaged in lead-
based paint
activities. Firms
engaged in lead-
based paint
activities.
------------------------------------------------------------------------
Training programs 1799, 8331, 8742, Training programs
8748 providing
training services
in lead-based
paint activities.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide to the entities that are likely to be affected by this action.
This table lists the types of entities that EPA is now aware could
potentially be affected by this action. Other types of entities not
listed in this table could also be affected. To determine whether you
or your business is affected by this action, you should carefully
examine the provisions in 40 CFR part 745. The Standard Industrial
Classification (SIC) codes that are provided in the table have been
included to assist you and others in determining whether or not this
action might apply to certain entities. If you have any questions
regarding the applicability of this action to a particular entity,
consult the technical person listed in the FOR FURTHER INFORMATION
CONTACT section.
II. How Can I Get Additional Information, Including Copies of this
or Other Related Documents?
A. Electronically
You may obtain electronic copies of this document and certain other
available documents from the EPA Internet Home Page at http://
www.epa.gov/. On the Home Page select ``Laws and Regulations'' and then
look up the entry for this document under ``Federal Register
Environmental Documents.'' You can also go directly to the ``Federal
Register'' listings at http://www.epa.gov/homepage/fedrgstr/.
B. In Person
The Agency has established an official record for this action under
docket control number OPPTS-62158A. The official record consists of the
documents specifically referenced in this action, any public comments
received during an applicable comment period, and other information
related to this action, including any information claimed as
confidential business information (CBI). This official record includes
the documents that are physically located in the docket, as well as the
documents that are referenced in those documents. The public version of
the official record does not include any information claimed as CBI.
The public version of the official record, which includes printed,
paper versions of any electronic comments submitted during an
applicable comment period, is available for inspection in the TSCA
Nonconfidential Information Center, North East Mall Rm. B-607,
Waterside Mall, 401 M St., SW., Washington, DC. The Center is open from
12 noon to 4 p.m., Monday through Friday, excluding
[[Page 31093]]
legal holidays. The telephone number of the Center is (202) 260-7099.
III. Who Will Be Required to Pay Fees Under this Rule?
The fees in this rule apply to: (1) Training programs applying to
EPA for the accreditation and re-accreditation of training courses in
the following disciplines: inspector, risk assessor, supervisor,
project designer, abatement worker, and (2) individuals and firms
seeking certification and re-certification from EPA to engage in lead-
based paint activities in one or more of the above-mentioned
disciplines. Consistent with TSCA section 402(a)(3) and as further
described in this preamble, this rule precludes the imposition of fees
for the accreditation of training programs operated by a State,
federally recognized Indian Tribe, local government, or nonprofit
organization. This exemption does not apply to the certification of
firms or individuals.
This rule applies only in States and Indian country where there are
no authorized programs pursuant to 40 CFR part 745, subpart Q. For
further information regarding the authorization status of States or
Indian Tribes contact the National Lead Information Center (NLIC) at 1-
800-424-LEAD.
IV. Under What Legal Authority Is this Action Being Issued?
EPA is issuing this rule under the authority of section 402 of TSCA
(15 U.S.C. 2682). Sections 402(a)(1) and (a)(2) require the Agency to
promulgate regulations for, among other things, the accreditation of
training programs and the certification of individuals and firms
engaged in lead-based paint activities. The regulation titled ``Lead;
Requirements for Lead-Based Paint Activities in Target Housing and
Child Occupied Facilities'' was published in the Federal Register of
August, 29 1996 (61 FR 45805) (FRL-5389-9), and appears at 40 CFR part
745, subpart L. Section 402(a)(3) of TSCA requires, with certain
exceptions, that the Administrator of EPA impose a fee on persons
operating accredited training programs and on individuals and firms
engaged in lead-based paint activities certified under TSCA. Section
402(a)(3) requires that the fees be established at a level necessary to
cover the costs of administering and enforcing the standards and
regulations under this section. EPA does not have the authority to
retain fees collected under this program. Therefore, fees collected by
the Agency will be deposited into the U.S. Treasury as required by 31
U.S.C. 3302(b).
Section 553 of the Administrative Procedure Act (APA) provides that
most final rules should become effective no sooner than 30 days after
publication in the Federal Register. The purpose of the 30-day lag time
is to ``afford persons affected a reasonable time to prepare for the
effective date of a rule or rules or to take any other action which the
issuance of rules may prompt.'' Sen. Rep. 752, 79th Cong., 1st sess. at
p.15. However, the APA also provides that agencies may for ``good
cause'' make rules effective in less than 30 days. Such good cause
exists if it is in the interest of the persons affected by the rule
that it be issued earlier. Attorney General's Manual on the APA at 37.
EPA is invoking the ``good cause'' exemption in section 553(d)(3) of
the APA to make this rule effective in less than 30 days because EPA
believes that the early effective date will allow parties seeking
certification or accreditation under the rule to receive the benefit of
earlier EPA action on their applications. This may be particularly
important to those training programs which have submitted early
applications for accreditation in States and Tribes where EPA is
administering the lead program, and which will not be able to offer
lead-based paint activities training that satisfies EPA requirements
after March 1, 1999, without EPA accreditation. Those parties wishing
to defer payment of fees established under this rule may simply defer
submission of an application to EPA for accreditation or certification.
V. How Does this Action Fit into EPA's Overall Lead Program?
The Residential Lead-Based Paint Hazard Reduction Act of 1992
(Title X) amended TSCA by adding a new Title IV. TSCA section 402,
Lead-Based Paint Activities Training and Certification, directs EPA to
promulgate regulations to govern the training and certification of
individuals engaged in lead-based paint activities, the accreditation
of training programs, and to establish standards for conducting lead-
based paint activities. Section 404 of TSCA requires that EPA establish
procedures for States and Indian tribes seeking to establish their own
lead-based paint activities programs. On August 29, 1996, EPA
promulgated final rules that implemented sections 402 and 404 of TSCA
titled ``Lead; Requirements for Lead-Based Paint Activities in Target
Housing and Child-Occupied Facilities.'' These rules are codified at 40
CFR part 745, subparts L and Q.
Section 402(a)(3) of TSCA directs the Agency to establish fees to
recover the cost of administering and enforcing the lead-based paint
activities training and certification program. The statute provides an
exemption from fee payment for training programs operated by a State
government, local government, or nonprofit organization.
Today's rule addresses this TSCA requirement with respect to
entities regulated under part 745, subpart L. This rule establishes
fees for the certification and periodic re-certification of individuals
and firms, and for the accreditation and periodic re-accreditation of
training programs. Also included are fees for examinations, replacement
of a lost certificate or identification card, and for registration in
more than one EPA-administered jurisdiction.
This rule also provides an exemption from fee payment for training
programs operated by federally recognized Indian Tribes. As more fully
described in the proposal for this rule, EPA's action in exempting
Tribal training programs from the requirement to pay user fees
recognizes that Tribes are government entities that should not be
singled out from States and local governments for the payment of user
fees.
EPA expects to develop additional regulations addressing lead-based
paint activities for commercial and public buildings, bridges and
superstructures, renovation and remodeling, and for the disposal of
lead-based paint debris. To the extent EPA requires additional
accreditations or certifications pursuant to such rules, additional fee
rules may be developed.
VI. Summary of Proposed Rule and Public Comments
On September 2, 1998, EPA issued a direct final rule (63 FR 46668)
(FRL-6017-8), and proposed rule (63 FR 46734) (FRL-6017-7) to establish
fees for the accreditation of training programs and certification of
contractors engaged in lead-based paint activities pursuant to section
402(a)(3) of the Toxic Substances Control Act (TSCA). As specified in
section 402(a)(3), the proposed rule would have established fees to
recover, for the U.S. Treasury, the Agency's cost of administering and
enforcing the standards and requirements applicable to lead-based paint
training programs and contractors engaged in lead-based paint
activities. Specifically, the proposal established the fees to be
charged in those States and Indian country without authorized programs,
for training programs seeking accreditation under 40 CFR 745.225, and
for individuals or firms engaged in lead-based paint activities seeking
certification under 40 CFR 745.226.
[[Page 31094]]
In response to the proposal, EPA received 23 letters from the
public during the comment period. On October 16, 1998, EPA announced
that it was withdrawing the direct final rule and acting on the
proposed rule (63 FR 55547) (FRL-6040-1). The Fees for Accreditation of
Training Programs and Certification of Lead-based Paint Activities
Contractors Proposal docket (OPPTS-62158) contains the proposal, public
comments on the proposal, material EPA has added in reply to the public
comments, and the Regulatory Impact Analysis for the proposed and the
final rules.
As indicated above EPA received 23 comments by the close of the
comment period. The largest number of responses was received from
public health and environmental protection departments (32% of the
responses) and lead-based paint activities firms (32% of the
responses). Other commenters included representatives of lead-based
paint training programs (14% of the responses) and businesses providing
both training and consulting services (14% of the responses). A summary
of all comments received, and EPA's responses, may be found in the
appropriate sections of this preamble, or in the Response to Comments
document which is available for public review in the TSCA Docket for
this rulemaking (see Unit II. of this preamble). The paragraphs that
follow briefly describe some of the key concerns that were raised by
the commenters.
The majority of the comments received raised concerns regarding the
fee levels. Specifically the concerns include the following: (1) The
fees will be a disincentive to building a network of qualified trainers
and abatement professionals; (2) the fees will promote unlawful
practice; (3) the fees will have a negative impact on programs to train
low-income persons; (4) worker fees are too high and this is magnified
by mobility issues; (5) State concerns that the fees do not represent
true cost; and (6) the fees will increase abatement cost and reduce the
number of homes for which lead-based paint hazards are abated.
Several commenters raised concerns regarding the proposed
provisions allowing fee exemptions for training programs operated by
State and local governments, federally recognized Indian Tribes, and
nonprofit organizations. Commenters also addressed the proposed rule's
effect on small business, the multi-jurisdiction registration fee, the
proposed one-time firm certification fee, and the inconsistency of
inspector and risk assessor fees.
Importantly, EPA received no comments which questioned the overall
program cost or the manner in which it was derived.
VII. Final Rule Provisions
In light of the public's comments, the Agency has carefully
reviewed the proposed rulemaking and identified areas, within the
Agency's discretion, which have been modified in this final rulemaking
to respond to public comments. Except for these changes, this final
rule is as proposed on September 2, 1998. These changes are described
below.
A. Inconsistency of Risk Assessor and Inspector Fees
A commenter notes that the Federal fees seem to be inconsistent for
risk assessors versus inspectors. Since an inspection can be conducted
not only by a person certified by EPA as an inspector, but also by a
person certified by EPA as a risk assessor, it would seem appropriate
that the certification and re-certification fee for the risk assessor
should be higher than the certification and re-certification fees for
the inspector.
Upon review of risk assessor and inspector fees, an error was
identified in the manner in which the burden determinations were
applied. This error involved the transposition of numbers associated
with evaluation factors used in determining the supervisor, risk
assessor, and inspector fee levels. The Agency has recalculated the
fees based upon corrected evaluation factors with the following result:
------------------------------------------------------------------------
Lead-based Paint Activities-
Individual Certification Re-certification
------------------------------------------------------------------------
Inspector $400 $350
Risk assessor $520 $420
Supervisor $470 $390
------------------------------------------------------------------------
B. Firm Fee
EPA received comments regarding the firm fee. The commenters note
that a one-time fee collected from a firm will do little in future
fiscal years to recover the costs associated with the firm.
Furthermore, several commenters do not feel that the proposed fee is
adequate to recover costs.
The Agency evaluated the one-time certification fee for firms and
agrees that it is inadequate to recover costs associated with the firm
in future years. Therefore, the Agency will charge a fee to maintain a
firm's certification of $430 every 3 years following initial
certification to recover the continuing costs associated with the firm.
This fee will include the established fixed amount to recover
enforcement and headquarters administrative costs along with the cost
of additional administrative tasks associated with this fee collection.
C. Worker Fee Levels and Worker Mobility
EPA received comments which expressed concern that worker fee
levels are too high. One commenter feels that the total impact of
training, certification, and lost wages during training for workers is
cost prohibitive. Another commenter points out that workers are hourly
wage-earners and cannot afford the fees proposed by EPA.
Many of the commenters were also concerned that the high fee levels
are magnified by worker mobility issues which will further drive
contracting firms costs up. The commenters feel that workers are hired
for a particular job and laid off at the completion of that job.
Therefore, workers tend to move from firm to firm and even out of the
business. The commenters believe that these costs are prohibitive for
contractor firms and make the cost of employee attrition unmanageable.
EPA also received comments which raised the issue that the proposed
fees would have a disproportionately negative impact on efforts to
train and certify low-income persons from the neighborhoods that are
most impacted by lead hazards. As one commenter states ``the fees will
have a chilling effect on community/low-income worker training
programs.''
In response to these comments the Agency has decided to adjust the
program cost distribution as it relates to firms and workers. The
Agency, in a
[[Page 31095]]
separate determination discussed above, has evaluated the one-time
certification fee for firms and has determined that it is inadequate to
recover costs associated with the firm in future years. The Agency will
charge a fee to maintain a firms certification of $430 every 3 years
following initial certification. Therefore, the Agency has applied the
increased revenue generated by the additional firm fee to reduce the
worker fee level. The worker fee has decreased approximately 22% from
$360 to $280. This $280 fee for workers provides for a 3- or 5-year
certification period based upon the type of course completed. This
translates to an annual cost of between $56 and $94. The worker re-
certification fee was correspondingly lowered to $240.
D. Multi-jurisdiction Registration Fees for Firms
A commenter noted that firms are not assessed a multi-jurisdiction
registration fee as are individuals and training providers.
Upon review of multi-jurisdiction registration fees for firms, an
omission was found in the text of the proposed rule. The Economic
Analysis for the rulemaking takes into account multi-jurisdiction
registration for firms, the proposed rule does not. Therefore, EPA has
modified the final rule text to include multi-jurisdiction fee
provisions for firms.
E. Multi-jurisdiction Registration Fees for Indian Country
EPA received comments which argue that the accreditation and
certification fees would be a disincentive to building a network of
qualified trainers and abatement professionals.
Upon further evaluation it was determined that the multi-
jurisdiction registration fee may cause a negative impact on the
availability of lead abatement services in Indian Country. The Agency
feels that the proposed multi-jurisdiction fee may be prohibitive and
decrease the number of individuals, firms, and training programs
willing to offer services in Tribes.
Therefore, the Agency has decided to change the multi-jurisdiction
registration fee by modifying how the fee relates to Indian Tribes.
Certification and accreditation to perform lead-based paint activities
in Indian Tribes without authorized programs will be issued according
to the boundaries established by the 10 EPA Regions. Therefore, an
individual, firm, or training program that is certified or accredited
to provide lead abatement services or training in any unauthorized
Indian Tribe within a given EPA Region will be able to provide services
in all unauthorized Indian tribes within the EPA Region. Also, the
title ``multi-state registration fee'' in the proposed regulatory text
has been modified to ``multi-jurisdiction fee'' to better reflect the
nature of the fee.
F. Definition of Nonprofit
EPA received a comment which questions the adequacy of the proposed
definition of ``nonprofit.'' The commenter states that labor-management
sponsored training programs, which are operated as nonprofit entities,
are for the most part not qualified under 501(c)(3) of the Internal
Revenue Service (IRS) code.
EPA notes that Subtitle C of Title X (section 1033), amending the
Occupational Safety and Health Act of 1970, provides authority to
provide grants to nonprofit organizations seeking to establish training
programs. That provision defines nonprofit organizations as including
colleges and universities, joint labor-management trust funds, states
and nonprofit government employee organizations. As indicated, this
statutory language includes labor-management trust funds, many of which
the commenter notes would not be eligible for fee waivers under the
proposed rule. It is the Agency's position that the definition of
nonprofit be refined for purposes of this rulemaking in order to be
consistent with this related provision.
In the process of refining the definition of nonprofit, the Agency
has determined that no single IRS tax exempt classification or group of
classifications adequately incorporates nonprofit training programs for
purposes of this rulemaking. Therefore, a more general definition was
developed which enables the Agency to adequately ensure the nonprofit
status of an organization without incorporating the constraints of the
IRS tax exemption classifications. The revised definition reads as
follows: ``Nonprofit means an entity which has demonstrated to any
branch of the Federal Government or to a State, municipal, tribal or
territorial government, that no part of its net earnings inure to the
benefit of any private shareholder or individual.''
VIII. How Do I Pay the Fees?
Each fee payment described in this rule shall be in U.S. currency
and shall be paid by check or money order. Individuals, firms, or
training programs shall submit fee payments in accordance with
instructions provided with the application materials. No application
will be considered complete until payment is made and final
certification/accreditation shall be dependent on the payment of the
applicable fees.
IX. How Can I Apply for Accreditation or Certification?
The application requirements can be found in 40 CFR 745.225 and
745.226. In addition, the Agency has prepared application packages and
guidance on applying. This material is available from EPA through the
National Lead Information Center at 1-800-424-LEAD.
X. How Do the Regulatory Assessment Requirements Apply to this
Action?
A. Executive Order 12866
Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993) it has been determined that this
is not a ``significant regulatory action'' subject to review by the
Office of Management and Budget (OMB). EPA has prepared an economic
analysis of the potential impact of this action, which is estimated to
be $5.6 million over the next 5 years. The analysis is contained in a
document entitled ``Economic Analysis of the TSCA Section 402(a)(3)
Lead-Based Paint Accreditation and Certification Fee Rule.'' This
document is available as a part of the public version of the official
record for this action.
B. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), the Agency hereby certifies that this action will
not have a significant economic impact on a substantial number of small
entities. As indicated in Unit I. of this preamble, within the EPA-
administered universe, the potentially affected entities consist of the
following three basic types of entities: (1) Individuals engaged in
lead-based paint activities; (2) firms engaged in lead-based paint
activities; and (3) for-profit entities providing lead-based paint
training. The potential impact of this action on small entities within
this universe is described in Chapter 6 of the economic analysis, as
referred to in Unit X.A. of this preamble.
In estimating the universe of potentially impacted small entities,
EPA used the definitions provided by the Small Business Administration
(SBA). This rule provides fee waivers for training programs operated by
State and local governments, Indian Tribes, and nonprofit
organizations. As such, these entities are not affected by this rule.
With regard to individuals, to the extent that ``individuals'' are in
business for themselves, EPA considered that entity to be a firm with
one employee. The
[[Page 31096]]
analysis assumes that firms are likely to pay all or a portion of their
employee's certification fees. As a result, the small entity impact
analysis focuses on the potential impacts on two distinct types of
affected entities, i.e., firms engaged in lead-based paint activities
(including individuals in business for themselves), and for-profit
entities providing lead-based paint training.
EPA estimates that 1,541 firms engaged in lead-based paint
activities will be certified during the first 5 years in the EPA-
administered program universe. Using the revenue distribution for
Standard Industrial Code (SIC) 1799 and 8734, EPA estimates that
approximately 98% of these firms qualify as ``small'' under the SBA
definition for small businesses. However, even if the Agency assumes
that the firms pay all of the certification fees for their employees,
the impact is still estimated to be less than 1% of annual revenues for
all of these firms.
Within the EPA-administered program universe, EPA estimates that
there will be 52 training providers accredited during the first 5 years
in the EPA-administered program universe. Of the 52, only 60% (31) of
these training providers are estimated to be for-profit entities that
will be required to pay a fee. Using the revenue distribution for SIC
1799, EPA estimates that virtually all of these for-profit training
providers qualify as ``small'' under the SBA definition of small
business. Although it is estimated that 12 of these 31 fee paying for-
profit training providers may incur impacts that are slightly higher
than 3% of their revenue, the data also suggest that these for-profit
training providers have greater revenues than the SIC 1799 revenue
distribution suggests. For example, using the revenue distribution of
Massachusetts and Ohio training providers, only 1 of the 31 for-profit
training providers is estimated to have a potential impact of greater
than 1% of annual sales.
As indicated above, additional details regarding the Agency's basis
for this certification are presented in Chapter 6 of the economic
analysis, which is included in the public version of the official
record for this action. In addition, information relating to this
determination will be provided to the Chief Counsel for Advocacy of the
Small Business Administration upon request.
C. Paperwork Reduction Act
This regulatory action does not contain any information collection
requirements that require additional approval by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act (PRA), 44
U.S.C. 3501 et seq. The information collection referenced in this rule
(i.e., those included in 40 CFR 745.238) have already been approved by
OMB under control number 2070-0155 (EPA ICR #1715.02). This rule does
not have any impact on the existing burden estimate or collection
description, such that additional approval by OMB is necessary.
The existing Information Collection Request (ICR), identified as
EPA ICR 1715.02, identifies and quantifies the burden associated with
the submission of applications by individuals, firms, and training
programs. The burden estimates are based on the following required
submissions:
1. Firms. A certification letter.
2. Training program. An application which includes the following:
(i) The training programs name, address, and telephone number, (ii) a
list of courses for which it is applying for accreditation, (iii) a
statement signed by the training program manager that clearly indicates
how the training program meets the minimum requirement for
accreditation, or a statement that indicates that the training program
will use the EPA-developed curriculum if available, (iv) a copy of the
course test, a description of the activities and procedures for
conducting the assessment of hands on skills, and a description of the
facilities and equipment for lecture and hands on training, and (v) a
quality control plan, which outlines procedures for periodic revision
of training materials and exams, annual reviews of instructors, and
adequacy of training facilities.
3. Individuals. For supervisors, risk assessors, and inspectors an
application which includes the submission of proof of: (i) Completion
of an accredited training course, (ii) passing the course test, (iii)
meeting the educational and/or experience requirements (if applicable),
and (iv) passing the third party exam. For project designers and
abatement workers an application which includes submission of proof of:
completion of a training course, passing the course test, and meeting
educational and/or experience requirements (if applicable).
Under the PRA, ``burden'' means the total time, effort, or
financial resources expended by persons to generate, maintain, retain,
or disclose or provide information to or for a Federal Agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information subject to OMB approval under
the PRA, unless it displays a currently valid OMB control number. The
OMB control numbers for EPA's regulations, after initial publication in
the Federal Register, are maintained in a list at 40 CFR part 9.
Comments on the Agency's need for this information, the accuracy of
the provided burden estimates, and any suggested methods for minimizing
applicant burden, including through the use of automated collection
techniques, may be submitted to the person listed in the ``FOR FURTHER
INFORMATION CONTACT'' section at the beginning of this document, with a
copy to the Office of Information and Regulatory Affairs, Office of
Management and Budget, 725 17th St., NW., Washington, DC 20503, marked
``Attention: Desk Officer for EPA.'' Please remember to include the ICR
number in any correspondence.
D. Unfunded Mandates Reform Act (UMRA)
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995
(UMRA) (Pub. L. 104-4), EPA has determined that this regulatory action
is not subject to the requirements of sections 202 and 205. This rule
is not expected to result in expenditures of $100 million or more in
any given year for State, local and Tribal governments, in the
aggregate, or for the private sector. This rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Therefore, no action is needed under section 203 of the
UMRA.
E. Executive Orders 12875
Under Executive Order 12875, entitled ``Enhancing Intergovernmental
Partnerships'' (58 FR 58093, October 28, 1993), EPA may not issue a
regulation that is not required by statute and that creates a mandate
upon a State, local or tribal government, unless the Federal government
provides the funds necessary to pay the direct compliance costs
incurred by those governments. If the mandate is unfunded, EPA must
provide to OMB a description of the extent of EPA's prior consultation
with representatives of affected State, local and tribal governments,
the nature of their concerns, copies of any written communications from
the governments,
[[Page 31097]]
and a statement supporting the need to issue the regulation. In
addition, Executive Order 12875 requires EPA to develop an effective
process permitting elected officials and other representatives of
State, local and tribal governments ``to provide meaningful and timely
input in the development of regulatory proposals containing significant
unfunded mandates.''
Today's rule does not create an unfunded Federal mandate on State,
local or tribal governments. The rule does not impose any enforceable
duties on these entities. Accordingly, the requirements of section 1(a)
of Executive Order 12875 do not apply to this rule.
F. Executive Order 13084
Under Executive Order 13084, entitled ``Consultation and
Coordination with Indian Tribal Governments'' (63 FR 27655, May 19,
1998), EPA may not issue a regulation that is not required by statute,
that significantly or uniquely affects the communities of Indian tribal
governments, and that imposes substantial direct compliance costs on
those communities, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by the tribal
governments. If the mandate is unfunded, EPA must provide OMB, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this rule.
G. Executive Order 12898
Pursuant to Executive Order 12898, entitled ``Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, February 16, 1994), the Agency has
considered environmental justice related issues with regard to the
potential impacts of this action on the environmental and health
conditions in low-income and minority communities. The Agency's
analysis determined that the fees are not likely to cause
disproportionate impacts for minority or low-income populations. The
cost of the fees, even if passed on to consumers, is a small fraction
of the cost of lead hazard evaluation and abatement projects. Thus, the
establishment of these fees is not likely to result in fewer lead
hazard evaluation or abatement activities. In addition, EPA, HUD, and
State and local organizations have developed programs to help
disadvantaged communities respond to lead risks.
H. Executive Order 13045
Executive Order 13045 applies to any rule that EPA determines (1)
is economically significant as defined under Executive Order 12866, and
(2) addresses an environmental health or safety risk that has a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children; and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. EPA has
determined that this rule is not subject to Executive Order 13045
because it is not an economically significant regulatory action as
defined by Executive Order 12866 (see Unit X.A. of this preamble).
Furthermore, although this rule is associated with EPA's overall lead-
based paint management program which is designed to reduce health risks
to children, this rule itself simply establishes a user fee schedule
and does not address environmental health or safety risk.
I. National Technology Transfer and Advancement Act
This regulatory action does not involve any technical standards
that would require Agency consideration of voluntary consensus
standards pursuant to section 12(d) of the National Technology Transfer
and Advancement Act of 1995 (NTTAA), Pub. L. 104-113, 12(d) (15 U.S.C.
272 note). Section 12(d) of NTTAA directs EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, business practices,
etc.) that are developed or adopted by voluntary consensus standards
bodies. The NTTAA requires EPA to provide Congress, through OMB,
explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
J. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 745
Environmental protection, Fees, Hazardous substances, Lead
poisoning, Reporting and recordkeeping requirements.
Dated: May 28, 1999.
Carol M. Browner,
Administrator.
Therefore, 40 CFR part 745 is amended as follows:
PART 745-- [AMENDED]
1. The authority citation for part 745 continues to read as
follows:
Authority: 15 U.S.C. 2605, 2607, 2615, 2681-2692, and 42 U.S.C.
4852d.
2. In Sec. 745.223 by adding the following three new definitions in
alphabetical order to read as follows:
Sec. 745.223 Definitions.
* * * * *
Local government means a county, city, town, borough, parish,
district, association, or other public body (including an agency
comprised of two or more of the foregoing entities) created under State
law.
* * * * *
Nonprofit means an entity which has demonstrated to any branch of
the Federal Government or to a State, municipal, tribal or territorial
government, that no part of its net earnings inure to the benefit of
any private shareholder or individual.
* * * * *
State means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
the Canal Zone, American Samoa, the Northern Mariana Islands, or any
other territory or possession of the United States.
[[Page 31098]]
* * * * *
3. In Sec. 745.225 by adding paragraphs (b)(4) and (f)(3)(v) to
read as follows:
Sec. 745.225 Accreditation of training programs: target housing and
child-occupied facilities.
* * * * *
(b) * * *
(4) A training program applying for accreditation must submit the
appropriate fees in accordance with Sec. 745.238.
* * * * *
(f) * * *
(3) * * *
(v) A payment of appropriate fees in accordance with Sec. 745.238.
* * * * *
4. In Sec. 745.226 by adding paragraphs (a)(6), (e)(3), (f)(6), and
(f)(7) to read as follows:
Sec. 745.226 Certification of individuals and firms engaged in lead-
based paint activities: target housing and child-occupied facilities.
* * * * *
(a) * * *
(6) Individuals applying for certification must submit the
appropriate fees in accordance with Sec. 745.238.
* * * * *
(e) * * *
(3) Individuals applying for re-certification must submit the
appropriate fees in accordance with Sec. 745.238.
* * * * *
(f) * * *
(6) Firms applying for certification must submit the appropriate
fees in accordance with Sec. 745.238.
(7) To maintain certification a firm shall submit appropriate fees
in accordance with Sec. 745.238 every 3 years.
* * * * *
5. By adding Sec. 745.238 to read as follows:
Sec. 745.238 Fees for accreditation and certification of lead-based
paint activities.
(a) Purpose. To establish and impose fees for certified individuals
and firms engaged in lead-based paint activities and persons operating
accredited training programs under section 402(a) of the Toxic
Substances Control Act (TSCA).
(b) Persons who must pay fees. Fees in accordance with paragraph
(c) of this section must be paid by:
(1) Training programs. (i) All non-exempt training programs
applying to EPA for the accreditation and re-accreditation of training
programs in one or more of the following disciplines: inspector, risk
assessor, supervisor, project designer, abatement worker.
(ii) Exemptions. No fee shall be imposed on any training program
operated by a State, federally recognized Indian Tribe, local
government, or nonprofit organization. This exemption does not apply to
the certification of firms or individuals.
(2) Firms and individuals. All firms and individuals seeking
certification and re-certification from EPA to engage in lead-based
paint activities in one or more of the following disciplines:
inspector, risk assessor, supervisor, project designer, abatement
worker.
(c) Fee amounts--(1) Certification and accreditation fees. Initial
and renewal certification and accreditation fees are specified in the
following table:
Certification and Accreditation Fee Levels
------------------------------------------------------------------------
Re-accreditation<SUP>1</SUP>
[every 4 years,
Training Program Accreditation<SUP>1</SUP> see 40 CFR
745.225(f)(1) for
details]
------------------------------------------------------------------------
Initial Course
Inspector $2,500 $1,600
Risk assessor $1,760 $1,150
Supervisor $3,250 $2,050
Worker $1,760 $1,150
Project designer $1,010 $710
------------------------------------------------------------------------
Refresher Course
Inspector $1,010 $710
Risk assessor $1,010 $710
Supervisor $1,010 $710
Worker $1,010 $710
Project designer $640 $490
------------------------------------------------------------------------
------------------------------------------------------------------------
Re-certification<SUP>1</SUP>
[every 3 or 5
Lead-based Paint Activities- Certification<SUP>1</SUP> years, see 40 CFR
Individual 745.226(e)(1) for
details]
------------------------------------------------------------------------
Inspector $400 $350
Risk assessor $520 $420
Supervisor $470 $390
Worker $280 $240
Project designer $470 $390
------------------------------------------------------------------------
------------------------------------------------------------------------
Certification
Renewal<SUP>1</SUP> [every 3
Lead-based Paint Activities-Firm Certification<SUP>1</SUP> years, see 40 CFR
745.226(f)(7) for
details]
------------------------------------------------------------------------
Firm $540 $430
------------------------------------------------------------------------
<SUP>1</SUP>Fees will be adjusted periodically based on adjustments accounting for
changes in participation and operating costs.
[[Page 31099]]
(2) Certification examination fee. Individuals required to take a
certification exam in accordance with Sec. 745.226 will be assessed a
fee of $70 for each exam attempt.
(3) Multi-jurisdiction registration fee. An individual, firm, or
training program certified or accredited by EPA may wish to provide
training or perform lead-based paint activities in additional EPA-
administered jurisdictions. A fee of $35 per discipline will be
assessed for each additional EPA-administered jurisdiction in which an
individual, firm, or training program applies for certification/re-
certification or accreditation/re-accreditation. For purposes of this
multi-jurisdiction registration fee, an EPA-administered jurisdiction
is either an individual state without an authorized program or all
Indian Tribes without authorized programs that are within a given EPA
Region.
(4) Lost identification card or certificate. A $15 fee shall be
charged for replacement of an identification card or certificate. (See
replacement procedure in paragraph (e) of this section.)
(d) Application/payment procedure-- (1) Certification and re-
certification in one or more EPA-administered jurisdiction-- (i)
Individuals. Submit a completed application (titled ``Application for
Individuals to Conduct Lead-based Paint Activities''), the materials
described at Sec. 745.226, and the application fee(s) described in
paragraph (c) of this section.
(ii) Firms. Submit a completed application (titled ``Application
for Firms to Conduct Lead-based Paint Activities''), the materials
described at Sec. 745.226, and the application fee(s) described in
paragraph (c) of this section.
(2) Accreditation and re-accreditation in one or more EPA-
administered jurisdiction. Submit a completed application (titled
``Accreditation Application for Training Programs''), the materials
described at Sec. 745.225, and the application fee described in
paragraph (c) of this section.
(3) Application forms. Application forms and instructions can be
obtained from the National Lead Information Center at: 1-800-424-LEAD.
(e) Identification card replacement and certificate replacement.
(1) Parties seeking identification card or certificate replacement
shall complete the applicable portions of the appropriate application
in accordance with the instructions provided. The appropriate
applications are:
(i) Individuals. ``Application for Individuals to Conduct Lead-
based Paint Activities.''
(ii) Firms. ``Application for Firms to Conduct Lead-based Paint
Activities.''
(iii) Training programs. ``Accreditation Application for Training
Programs.''
(2) Submit application and payment in the amount specified in
paragraph (c)(4) of this section in accordance with the instructions
provided with the application package.
(f) Adjustment of fees. (1) EPA will collect fees reflecting the
costs associated with the administration and enforcement of subpart L
of this part with the exception of costs associated with the
accreditation of training programs operated by a State, federally
recognized Indian Tribe, local government, and nonprofit organization.
In order to do this, EPA will periodically adjust the fees to reflect
changed economic conditions.
(2) The fees will be evaluated based on the cost to administer and
enforce the program, and the number of applicants. New fee schedules
will be published in the Federal Register.
(g) Failure to remit a fee. (1) EPA will not provide certification,
re-certification, accreditation, or re-accreditation for any
individual, firm, or training program which does not remit fees
described in paragraph (c) of this section in accordance with the
procedures specified in paragraph (d) of this section.
(2) EPA will not replace identification cards or certificates for
any individual, firm, or training program which does not remit fees
described in paragraph (c) of this section in accordance with the
procedures specified in paragraph (e) of this section.
[FR Doc. 99-14597 Filed 6-8-99; 8:45 am]
BILLING CODE 6560-50-F
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