04-7980. Lead; Notification Requirements for Lead-Based Paint Abatement Activities and Training

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

Under the authority of section 407 of the Toxic Substances Control Act (TSCA), as amended by the Residential Lead-Based Paint Hazard Reduction Act of 1992, also known as “Title X (ten),” EPA is issuing this final rule to establish notification procedures for certified lead abatement professionals conducting lead-based paint abatement activities, and accredited training programs providing lead-based paint activities courses. Specifically, this rule establishes the procedures that must be used to provide notification to EPA prior to the commencement of lead-based paint abatement activities. This rule also establishes provisions that require accredited training programs to notify EPA under the following conditions: Prior to providing initial or refresher lead-based paint activities training courses; and following completion of lead-based paint activities training courses. These notification requirements are necessary to provide EPA compliance monitoring and enforcement personnel with information necessary to track lead-based paint abatement and training activities, and to prioritize compliance inspections. This rule will help to prevent lead poisoning in children under the age of 6 by supporting EPA's implementation of the mandate in Title X to ensure that lead professionals involved in inspecting, assessing or removing lead-based paint, dust or soil are trained and certified to conduct these activities. This rule applies only in States and Tribal areas that do not have authorized programs pursuant to 40 CFR 745.324.

DATES:

This final rule is effective on May 10, 2004.

FOR FURTHER INFORMATION CONTACT:

For general information contact: Barbara Cunningham, Director, Environmental Assistance Division (7408M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: [phone]; e-mail address: [e-mail].

For technical information contact: Mike Wilson, National Program Chemicals Division (7404T), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. General Information

A. 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 firm which must be certified to conduct lead-based paint abatement activities in accordance with 40 CFR 745.226. Specifically, the procedure for notification of the commencement of lead-based paint abatement activities applies to the certified firm conducting lead-based paint abatement activities. The procedure for notification of lead-based paint activities training courses applies to the training manager of an accredited training program. This rule applies only in States and Indian Tribes that do not have authorized programs pursuant to 40 CFR 745.324. For further information regarding the authorization status of States and Indian Tribes contact the National Lead Information Center (NLIC) at 1-800-424-LEAD(5323). Potentially affected categories and entities may include, but are not limited to:

• Lead abatement professionals (NAICS 562910); firms and supervisors engaged in lead-based paint activities
• Training programs (NAICS 611519); training programs providing training services in lead-based paint activities

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action applies to certain entities. To determine whether you or your business is affected by this action, you should carefully examine the applicability provisions in 40 CFR part 745. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

B. How Can I Get Additional Information, Including Copies of this Document or Other Related Documents?

1. Docket. EPA has established an official public docket for this action under docket identification (ID) number OPPT-2003-0061 (legacy number OPPT-62165). The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the EPA Docket Center, Rm. B102-Reading Room, EPA West, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The EPA Docket Center Reading Room telephone number is [phone] and the telephone number for the OPPT Docket, which is located in EPA Docket Center, is [phone].

2. Electronic access. You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/​. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “Federal Register--Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/​fedrgstr/​. A frequently updated electronic version of 40 CFR part 745 is available at http://www.access.gpo.gov/​nara/​cfr/​cfrhtml_​00/​Title_​40/​40cfr745_​00.html, a beta site currently under development. To access information about lead-based paint and the Lead Program, go directly to the Home Page at http://www.epa.gov/​lead.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/​edocket/​ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. Once in the system, select “search,” then key in the appropriate docket ID number.

II. Introduction

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

EPA is issuing this final rule under the authority of TSCA section 407, 15 U.S.C. 2687. Section 407 states that regulations of the Administrator under Subchapter IV of TSCA shall include such recordkeeping and reporting requirements as may be necessary to ensure effective implementation. EPA regulations under Subchapter IV of TSCA include lead-based paint activities regulations, which this final rule amends, codified at 40 CFR part 745, subpart L.

B. Why is the Agency Taking this Action?

The requirements in this final rule provide EPA compliance monitoring and enforcement personnel with information necessary to track lead-based paint abatement and training activities, and to prioritize compliance inspections. The objective of the rule is to ensure that a workforce of qualified and properly trained firms and individuals can assist in the elimination of hazards associated with lead-based paint. Providing a quality workforce of this type will ensure that individuals and firms will conduct lead-based paint activities in a way that safeguards the environment and protects human health, specifically, the health of building occupants (especially children under 6 years of age) and the workers themselves.

C. 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. Several sections of Title X directed EPA to promulgate regulations aimed at fulfilling the purposes of Title X. These include TSCA section 402, Lead-Based Paint Activities Training and Certification, which 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 the establishment of standards for conducting lead-based paint activities. TSCA section 404 requires that EPA establish procedures for States seeking to establish their own programs for lead-based paint activities. On August 29, 1996, EPA promulgated a final rule under TSCA sections 402 and 404 titled Lead; Requirements for Lead-Based Paint Activities in Target Housing and Child-Occupied Facilities (61 FR 45778). The rule is codified at 40 CFR part 745, subparts L and Q.

One of the standards EPA developed for performing lead-based paint activities, codified at 40 CFR 745.227(e)(4), requires notification to EPA prior to the commencement of lead-based paint abatement activities in a residential dwelling, or child-occupied facility, or as a result of a Federal, State, Tribal, or local order. However, 40 CFR 745.227(e)(4) did not detail specific notification procedures. This final rule includes such procedures.

This final rule also requires training programs accredited under 40 CFR 745.225 to notify EPA prior to providing initial and refresher lead-based paint activities courses and to provide certain information after the completion of a training course. Currently, accredited training programs are asked to voluntarily notify EPA prior to offering a lead-based paint activities course. To provide consistency in this reporting, this final rule clearly defines the information needed by the Agency and when it must be provided.

The notification requirements for lead-based paint abatement activities and training courses in this final rule will assist significantly in the implementation and enforcement of lead-based paint activities regulations codified at 40 CFR part 745, subpart L. The notification provisions will help to assure compliance by facilitating observation of abatement activities and training by EPA compliance monitoring and enforcement personnel.

D. Summary of Proposed Rule and Public Comments.

On January 22, 2001, EPA issued a proposed rule (66 FR 7208) (FRL-6764-7) seeking to establish notification procedures, in those States and Federally recognized Tribal jurisdictions without authorized programs, for certified lead abatement professionals conducting lead-based paint abatement activities, and accredited training programs providing lead-based paint activities courses. Specifically, the proposal introduced procedures for providing notification to EPA prior to the commencement of lead-based paint abatement activities. The proposal also introduced provisions which would require accredited training programs to notify EPA under the following conditions: (1) Prior to providing lead-based paint activities training courses; and (2) following completion of lead-based paint activities training courses.

In response to the proposal, EPA received 11 comments. The largest number of responses was received from trainers and public educators (5 of the responses). Other commenters included government agencies (2 of the responses), a representative of a municipality, and a national organization representing demolition contractors. A summary of all comments received, and EPA's responses, may be found in the Response to Comments document which is available for public review in the TSCA Docket for this rulemaking (see Unit I.B.).

The majority of the comments raised concerns regarding the time periods allotted for notification of both lead-based paint abatement activities and associated training. Specific areas of concern included: (1) Time period for initial notification; (2) time period for notification of delayed start date; (3) time period for notification of cancellation or other significant changes; (4) emergency notification requirements; (5) which businesses must provide notification and who must sign the notification; and (6) purpose and use of information collected. Major comments are discussed in Unit III., and remaining comments are discussed in the Response to Comments document.

III. Final Rule Provisions

A. What are the Requirements for Notification of Lead-based Paint Abatement Activities?

This final rule requires firms certified under 40 CFR 745.226 to provide notification to the Agency prior to conducting lead-based paint abatement activities. The original notice must be received by the Agency at least 5 business days prior to the start of lead-based paint abatement activities. An abbreviated notification period is provided for lead-based paint abatement activities conducted in response to an elevated blood lead level (EBL) determination and/or a Federal, State, Tribal, or local emergency abatement order, where the firm is unable to comply with the standard notification period due to the necessity for an expeditious response to such event. If lead-based paint abatement activities are expected to begin on a date other than that specified in the original notice or if the other reported information changes, an updated notice is required. The notice must include the following:

1. Notification type (original, updated, cancellation).

2. Date when lead-based paint abatement activities will start.

3. Date when lead-based paint abatement activities will end (approximation using best professional judgement).

4. Firm's name, EPA certification number, address, telephone number.

5. Type of building (e.g., single family dwelling, multi-family dwelling, child-occupied facilities) on/in which abatement work will be performed.

6. Property name (if applicable).

7. Property address including apartment or unit number(s) (if applicable) for abatement work.

8. Documentation showing evidence of an EBL determination or a copy of the Federal/State/Tribal/local emergency abatement order, if using the abbreviated time period.

9. Name and EPA certification number of the project supervisor.

10. Approximate square footage/acreage to be abated.

11. Brief description of abatement activities to be performed.

12. Name, title, and signature of the representative of the certified firm who prepared the notification.

Notification must be accomplished using any of the following methods: written notification, or electronically using the Agency's Central Data Exchange (CDX). Written notification can be accomplished using either the sample form titled Notification of Lead-Based Paint Abatement Activities or similar form containing the required information. All written notifications must be delivered by U.S. Postal Service, fax, commercial delivery service, or hand delivery.

B. What are the Requirements for Notification of Lead-based Paint Activities Training?

This final rule requires training programs accredited under 40 CFR 745.225 to provide notification to the Agency prior to conducting lead-based paint activities courses. The original notice must be received by the Agency at least 7 business days prior to the start of a lead-based paint activities course. An updated notice is required if the starting date for a lead-based paint activities course is changed to a date other than that specified in the original notice or if the other reported information changes. The notice must include the following:

1. Notification type (original, update, cancellation).

2. Training program name, EPA accreditation number, address, and telephone number.

3. Course discipline, type (initial/ refresher), and the language in which instruction will be given.

4. Date(s) and time(s) of training.

5. Training location(s) telephone number, and address.

6. Principal instructor's name.

7. Training manager's name and signature.

Training programs must also provide notice to the Agency following completion of a lead-based paint activities course. This notice must be provided to the Agency within 10 business days of course completion. This notice must include the following:

1. Training program name, EPA accreditation number, address, and telephone number.

2. Course discipline and type (initial/refresher).

3. Date(s) of training.

4. The following information for each student who took the course:

a. Name.

b. Address.

c. Date of birth.

d. Course completion certificate number.

e. Course test score.

f. Training manager's name and signature.

Notification must be accomplished using any of the following methods: Written notification, or electronically using the Agency's Central Data Exchange (CDX). Written notification of lead-based paint activities course schedules can be accomplished by using either the appropriate sample form provided by EPA or a similar form containing the required information. All written notifications must be delivered by U.S. Postal Service, fax, commercial delivery service, or hand delivery.

C. What Changes Were Made in the Final Rule?

In light of the public's comments, EPA has carefully reviewed the proposed rulemaking and has made certain modifications in the final rule. The following is a brief description of the most significant changes adopted in response to public comment on the proposal. Further information regarding comments received or EPA's response can be reviewed in the Response to Comments document available for public review in the public docket described in Unit I.B.1. With the exception of these and additional minor editorial changes, the final rule is as proposed on January 22, 2001. The following discussion describes the changes.

1. Time period for initial abatement notification. EPA received comments expressing concern that the proposed 10 business day initial notification may hamper some abatement processes, including the ability of lead abatement firms to respond quickly to work demands.

Upon review, EPA has modified the initial notification period. The final rule includes a 5 business day initial notification period for lead-based paint abatement activities. EPA believes that the 5 business day notification period adequately addresses the concerns of the commenters while providing EPA with enough time to enable enforcement and compliance assistance personnel to adequately oversee abatement activities. Specifically, a 5-day notification period provides EPA sufficient time to perform activities such as processing the notification, making a determination of whether a compliance inspection is needed, preparing a travel authorization, providing a pre-inspection notification, performing a preliminary compliance review, and completing travel arrangements.

2. Time period for notification of delayed start date. EPA received comments regarding the proposed requirement that, if the project start date was to be delayed, notification would be provided to EPA 2 business days prior to the original start date. A commenter pointed out that it would be impossible to provide notification to EPA 2 business days prior to the original start date if issues regarding commencement of work arose on the day that work begins (e.g., lack of access to the work site).

EPA agrees that circumstances can arise on the project start date which delay work. Therefore, the final rule requires that notification of delayed lead-based paint abatement start dates be received by EPA on or before the original start date.

3. Time period for notification of cancellation or other significant changes. EPA received comments regarding the proposed requirement that, where abatement activities are canceled or other significant changes occur, EPA be notified 2 business days prior to the original start date. The commenters pointed out that it is impossible to update EPA regarding significant changes to the abatement project 2 days before the start date when the changes occur during the project.

Upon further review EPA agrees that providing cancellation or updated information 2 business days prior to the original start date in some cases could prove impossible. Therefore, the final regulation requires that notification of cancellation of lead-based paint activities be received by EPA on or before the original start date. In addition, any other required information updates must be received by EPA on or before the original start date, and where work has begun, within 24 hours of the change.

4. Certified supervisor's signature on the notification. A commenter asked why a certified supervisor must sign an abatement notification.

EPA has an interest in verifying that the project will be overseen by a certified supervisor as required by the regulation; however, on re-examination in light of the commenter's question, EPA believes that the notification itself need not be signed by a certified supervisor. EPA has modified the requirement in the final rule to indicate that a representative of the firm may sign the notification document. EPA also added a requirement that the name and certification number of the supervisor overseeing the project be included in the notification.

5. Time period for initial training notification. EPA received a comment regarding the time period for initial training notification. The commenter expressed concern that a 10 business day notification could hamper the ability of firms and individuals in the lead-based paint abatement field to obtain training quickly.

EPA is concerned that the proposed 10 business day notification period could prevent individuals from obtaining timely lead-based paint activities training. The final rule is modified to include a 7 business day initial notification period for lead-based paint activities training. This notification period provides EPA time to perform activities such as: Processing the notification, making a determination of whether a compliance inspection is needed, preparing a travel authorization, providing a pre-inspection notification, performing a preliminary compliance review, and completing travel arrangements. This notification period differs from abatement because compliance personnel often observe training in its entirety which necessitates an early arrival, whereas they will routinely monitor only a portion of an abatement project.

6. Student information. EPA received a comment that a student's date of birth should be provided to EPA following training rather than their social security number. The commenter stated that trainees are often reluctant to provide valid social security numbers, and believes that a date of birth would be as reliable an indicator of the student's identity as their social security number.

EPA agrees that a student's date of birth in conjunction with other required information is a reliable indicator of the student's identity. Therefore, the final regulation eliminates the requirement that training programs provide student's social security numbers and instead requires that a student's date of birth be reported.

7. Requirement to follow e-mail notification with written notification. EPA received comments regarding the requirement to follow e-mail notification with written notification. The commenters indicated that e-mail notification should be sufficient, and that a follow-up written notification would be redundant and increase the paperwork burden of both government and industry.

EPA plans to use its Central Data Exchange (CDX) to receive electronic notification submitted to satisfy the requirements of this regulation. One of the basic purposes of the CDX system is to provide a method of electronic signature verification, which eliminates the need for a follow-up written notification after an e-mail notification is provided. Therefore, where a submission is provided electronically via the Agency's CDX system, follow-up written notice is not required.

8. Ability to use other forms if information is the same. EPA received comments regarding the use of forms, other than the sample forms developed by EPA, containing the information specified in the proposal. Both commenters suggest EPA minimize respondent burden by allowing the use of other forms as long as they provide the same information required under the EPA rule.

EPA agrees that allowing alternative forms can reduce respondent burden and agrees that other forms should be allowed to be used if they contain the information required by EPA. The final rule allows the use of alternative forms that contain the information required by EPA.

9. Terminology. EPA received a comment that the use of the terms “project start date” and “original start date” were confusing.

EPA agreed and introduced new terms and definitions for “start date” and “start date provided to EPA” which clarify these requirements. In addition, EPA removed the definition of “lead abatement professional” because the term was not introduced in the regulatory text.

D. How Do I Obtain Notification Instructions and Sample Forms?

Instructions and sample forms can be obtained from the National Lead Information Center at 1-800-424-LEAD(5323), or on the Internet at http://www.epa.gov/​lead.

IV. Statutory and Executive Order Reviews

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 final rule is not a “significant regulatory action” subject to review by the Office of Management and Budget (OMB) under Executive Order 12866, because this action does not meet any of the criteria for a “significant regulatory action” under section 3(f) of Executive Order 12866.

The costs for the first year of implementation are estimated to be approximately $440,000, decreasing to an average annual estimated cost of approximately $395,000 in subsequent years. For additional information about these estimated costs, please refer to the document titled Information Collection Request (ICR) Supporting Statement for a Proposed Addendum to EPA ICR No. 1715 titled TSCA §402/404 Training and Certification, Accreditation, and Standards for Lead-Based Paint Activities (hereinafter the ICR Addendum (EPA ICR No. 1715.03)). This document, identified as EPA ICR No. 1715.03, is an addendum to the existing ICR. A copy is available in the public docket described in Unit I.B.1.

B. Paperwork Reduction Act

The information collection requirements contained in this final rule have been approved by OMB under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., and assigned OMB control number 2070-0155. A copy of the Information Collection Request (ICR) document (EPA ICR No. 1715.05) has been placed in the public docket described in Unit I.B.1.

The information requirements contained in this rule are not effective until promulgation and OMB approval, which is represented by a currently valid OMB control number. 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 in Title 40 of the CFR, after initial publication in the Federal Register and inclusion on the collection instruments, are maintained in a list at 40 CFR part 9.

The final rule contains the following information collection requirements subject to the PRA that impose paperwork burdens: (1) Reading and interpreting the final rule; (2) the notification of lead-based paint abatement activities; (3) the notification of lead-based paint activities training courses; and (4) the notification following completion of lead-based paint activities training courses. The total paperwork burdens are estimated to be 21,254 total hours for the first year of implementation, and 19,048 hours annually in subsequent years.

Under the PRA, “burden” means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal Agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

C. Regulatory Flexibility Act

Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), EPA hereby certifies that this action will not have a significant economic impact on a substantial number of small entities. The factual basis for EPA's determination, which is summarized here, is based on the small entity impact analysis prepared as part of the Regulatory Impact Analysis (RIA) for the 1996 Lead Abatement Training and Certification Final Rule (61 FR 45778). EPA assessed the potential small entity impacts of the notification requirement that was contained in the 1996 final rule as part of the economic analysis that was prepared for that rulemaking, a copy of which is available in the public docket described in Unit I.B.1. In addition, EPA has estimated the impacts of the procedural requirements contained in this rule, which are presented in the ICR Addendum (EPA ICR No. 1715.03).

In considering the potential small entity impacts of this final rule, EPA believes that its previous determination regarding the Lead Abatement Training and Certification Final Rule is not affected by the notification procedures contained in this final rule. Based on the estimated total costs of this final rule as presented in the ICR Addendum (EPA ICR No. 1715.03), EPA has determined that this rulemaking is not likely to result in a significant economic impact on a substantial number of small entities. In general, EPA strives to minimize potential adverse impacts on small entities when developing regulations to achieve the environmental and human health protection goals of the statute and EPA.

For the purpose of analyzing the potential impacts of this final rule on small entities, EPA used the definition for small entities that is found in section 601 of the RFA. Under section 601, “small entity” is defined as: (1) A small business that meets Small Business Administration (SBA) size standards codified at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. The SBA size standards for the small businesses potentially affected by this final rule is 500 employees or less for lead abatement firms whose primary activity is classified as environmental remediation (NAICS code 562910), and revenues of $5 million or less for firms that are accredited to provide lead-based paint training (NAICS code 611519).

This rule only applies in those States and Tribes that do not have authorized programs pursuant to 40 CFR 745.324, and then only applies if that State or Tribe chooses to seek certification to perform lead abatement activities or accreditation to provide lead training. As such, small governmental jurisdictions are only impacted if there is not a State or Tribe authorized program and then only if the small governmental entity chooses to seek certification to perform lead abatement activities or accreditation to provide lead training on their own. To estimate potential impacts on small governments, EPA estimated that in the first year of implementation there could be approximately 15.36 abatement notifications per firm and 17.93 training provider notifications per provider. In subsequent years, the number of training provider notifications are expected to decrease to four each year per provider.

Small businesses are only impacted if there is not a State or Tribe authorized program in their State, and then only if they seek certification to perform lead abatement activities or accreditation to provide lead training. EPA estimates that there could be approximately 15.36 notifications per firm each year, and approximately 4,000 firms.

The estimated average cost per notification for abatement firms is approximately $5, with an estimated total cost per entity of approximately $75 annually. The estimated average cost per notification for training providers is approximately $32, with an estimated total cost per entity of approximately $298 in the first year and approximately $67 in subsequent years. EPA believes that the impact of these costs would be proportional for both small and large firms, and that the impacts may be slightly lower for small governmental jurisdictions that seek EPA certification as an abatement firm or EPA accreditation as a training provider due to lower wage rates and overhead expenses. Overall, EPA believes that these costs would not result in a significant economic impact on affected small entities.

Small non-profit organizations are only impacted if they seek certification to perform lead abatement activities or accreditation to provide lead training on their own. Although EPA believes that non-profit organizations may seek certification, EPA does not have sufficient information about these organizations or their intentions regarding certification or accreditation. Nevertheless, given the low costs for notification and the relatively small number of non-profit organizations, EPA does not believe that this affects EPA's determination that this rule is not expected to have a significant economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law No. 104-4), EPA has determined that this regulatory action does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. This final rule applies only in States and Indian Tribes that do not have authorized programs pursuant to 40 CFR 745.324, and then only applies to those States and Indian Tribes who choose to seek certification to perform lead abatement activities or accreditation to provide lead training. As such, the rule will not impose an enforceable duty on any State, local or Tribal governments. Since, this final rule is estimated to cost approximately $439,573 in the first year of implementation, and $395,157 annually in subsequent years, it is not expected to result in expenditures by the private sector of $100 million or more in any given year. As a result, the UMRA requirements in sections 202, 204, and 205 do not apply to this final rule.

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 Order 13132

Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This final rule does not have federalism implications, because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This final rule applies only in States that do not have authorized programs pursuant to 40 CFR 745.324, and then only applies to those States who choose to seek certification to perform lead abatement activities or accreditation to provide lead training.

Although section 6 of Executive Order 13132 does not apply to this rule, EPA consulted with the States at meetings of the Forum on State and Tribal Toxics Action and the annual EPA meeting with State Lead Program representatives.

F. Executive Order 13175

This rule does not significantly or uniquely affect the communities of Indian tribal governments, because this final rule applies only in Indian Tribes that do not have authorized programs pursuant to 40 CFR 745.324, and then only applies to those Indian Tribes who choose to seek certification to perform lead abatement activities or accreditation to provide lead training. Accordingly, the requirements of section 3(b) of Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 276755, May 19, 1998), do not apply to this rule. Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000), which took effect on January 6, 2001, revokes Executive Order 13084 as of that date. EPA developed this rulemaking, however, during the period when Executive Order 13084 was in effect; thus, EPA addressed tribal considerations under Executive Order 13084. For the same reasons stated for Executive Order 13084, the requirements of Executive Order 13175 do not apply to this rule either.

G. Executive Order 13045

Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that (1) is economically significant as defined under OMB's guidance related to section 3(f)(1) of Executive Order 12866, and (2) addresses an environmental health or safety risk that EPA has reason to believe has a disproportionate effect on children. If the regulatory action meets both criteria, EPA 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 EPA.

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 IV.A.). Although this final 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 an Agency notification procedure and does not directly address environmental health or safety risk. This final rule does, however, help to further EPA's efforts to prevent lead poisoning in children under the age of 6 by supporting EPA's implementation of the mandate in Title X, which requires that lead professionals involved in inspecting, assessing or removing lead-based paint, dust or soil be trained and certified to conduct these activities.

H. Executive Order 13211

This rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use.

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), Public Law No. 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, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA requires EPA to provide Congress, through OMB, explanations when EPA decides not to use available and applicable voluntary consensus standards. EPA invites comment on the potential use of voluntary consensus standards in this rulemaking, and, specifically, invites the public to identify potentially applicable consensus standard(s) and to explain why such standard(s) should be used here.

J. 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), EPA 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. EPA's analysis has determined that this final action has no disproportionate impact on minority or low-income populations.

K. Executive Order 12630

EPA has complied with Executive Order 12630, entitled Governmental Actions and Interference with Constitutionally Protected Property Rights (53 FR 8859, March 15, 1988), by examining the takings implications of this rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the Executive Order.

L. Executive Order 12988

In issuing this final rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988, entitled Civil Justice Reform (61 FR 4729, February 7, 1996).

V. Congressional Review Act

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

List of Subjects in 40 CFR Part 745

• Environmental protection
• Fees
• Hazardous substances
• Lead poisoning
• Reporting and recordkeeping requirements

Dated: March 31, 2004.

Michael O. Leavitt,

Administrator.

Therefore, 40 CFR chapter I 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. Section 745.223 is amended by alphabetically adding the following definitions to read as follows:

§ 745.223

Definitions.

* * * * *

Business day means Monday through Friday with the exception of Federal holidays.

* * * * *

Lead-based paint activities courses means initial and refresher training courses (worker, supervisor, inspector, risk assessor, project designer) provided by accredited training programs.

* * * * *

Start date means the first day of any lead-based paint activities training course or lead-based paint abatement activity.

Start date provided to EPA means the start date included in the original notification or the most recent start date provided to EPA in an updated notification.

* * * * *

Training provider means any organization or entity accredited under § 745.225 to offer lead-based paint activities courses.

* * * * *

3. Section 745.225 is amended by adding paragraphs (c)(13) and (c)(14) and revising paragraph (e)(5)(vi) to read as follows:

§ 745.225

Accreditation of training programs: target housing and child-occupied facilities.

* * * * *

(c) * * *

(13) The training manager must provide notification of lead-based paint activities courses offered.

(i) The training manager must provide EPA with notification of all lead-based paint activities courses offered. The original notification must be received by EPA at least 7 business days prior to the start date of any lead-based paint activities course.

(ii) The training manager must provide EPA updated notification when lead-based paint activities courses will begin on a date other than the start date specified in the original notification, as follows:

(A) For lead-based paint activities courses beginning prior to the start date provided to EPA, an updated notification must be received by EPA at least 7 business days before the new start date.

(B) For lead-based paint activities courses beginning after the start date provided to EPA, an updated notification must be received by EPA at least 2 business days before the start date provided to EPA.

(iii) The training manager must update EPA of any change in location of lead-based paint activities courses at least 7 business days prior to the start date provided to EPA.

(iv) The training manager must update EPA regarding any course cancellations, or any other change to the original notification. Updated notifications must be received by EPA at least 2 business days prior to the start date provided to EPA.

(v) Each notification, including updates, must include the following:

(A) Notification type (original, update, cancellation).

(B) Training program name, EPA accreditation number, address, and telephone number.

(C) Course discipline, type (initial/ refresher), and the language in which instruction will be given.

(D) Date(s) and time(s) of training.

(E) Training location(s) telephone number, and address.

(F) Principal instructor's name.

(G) Training manager's name and signature.

(vi) Notification must be accomplished using any of the following methods: Written notification, or electronically using the Agency's Central Data Exchange (CDX). Written notification of lead-based paint activities course schedules can be accomplished by using either the sample form titled “Lead-Based Paint Activities Training Course Schedule” or a similar form containing the information required in paragraph (c)(13)(v) of this section. All written notifications must be delivered by U.S. Postal Service, fax, commercial delivery service, or hand delivery (persons submitting notification by U.S. Postal Service are reminded that they should allow 3 additional business days for delivery in order to ensure that EPA receives the notification by the required date). Instructions and sample forms can be obtained from the NLIC at 1-800-424-LEAD(5323), or on the Internet at http://www.epa.gov/​lead.

(vii) Lead-based paint activities courses must not begin on a date, or at a location other than that specified in the original notification unless an updated notification identifying a new start date or location is submitted, in which case the course must begin on the new start date and/or location specified in the updated notification.

(viii) No training program shall provide lead-based paint activities courses without first notifying EPA of such activities in accordance with the requirements of this paragraph.

(14) The training manager must provide notification following completion of lead-based paint activities courses.

(i) The training manager must provide EPA notification after the completion of any lead-based paint activities course. This notice must be received by EPA no later than 10 business days following course completion.

(ii) The notification must include the following:

(A) Training program name, EPA accreditation number, address, and telephone number.

(B) Course discipline and type (initial/refresher).

(C) Date(s) of training.

(D) The following information for each student who took the course:

(1) Name.

(2) Address.

(3) Date of birth.

(4) Course completion certificate number.

(5) Course test score.

(E) Training manager's name and signature.

(iii) Notification must be accomplished using any of the following methods: Written notification, or electronically using the Agency's Central Data Exchange (CDX). Written notification following lead-based paint activities training courses can be accomplished by using either the sample form titled “Lead-Based Paint Activities Training Course Follow-up” or a similar form containing the information required in paragraph (c)(14)(ii) of this section. All written notifications must be delivered by U.S. Postal Service, fax, commercial delivery service, or hand delivery (persons submitting notification by U.S. Postal Service are reminded that they should allow 3 additional business days for delivery in order to ensure that EPA receives the notification by the required date). Instructions and sample forms can be obtained from the NLIC at 1-800-424-LEAD(5323), or on the Internet at http://www.epa.gov/​lead.

* * * * *

(e) * * *

(5) * * *

(vi) The requirements in paragraphs (c)(1) through (c)(5), and (c)(7) through (c)(14) of this section apply to refresher training providers.

* * * * *

4. Section 745.227 is amended by revising paragraph (e)(4) to read as follows:

§ 745.227

Work practice standards for conducting lead-based paint activities: target housing and child-occupied facilities.

* * * * *

(e) * * *

(4) A certified firm must notify EPA of lead-based paint abatement activities as follows:

(i) Except as provided in paragraph (e)(4)(ii) of this section, EPA must be notified prior to conducting lead-based paint abatement activities. The original notification must be received by EPA at least 5 business days before the start date of any lead-based paint abatement activities.

(ii) Notification for lead-based paint abatement activities required in response to an elevated blood lead level (EBL) determination, or Federal, State, Tribal, or local emergency abatement order should be received by EPA as early as possible before, but must be received no later than the start date of the lead-based paint abatement activities. Should the start date and/or location provided to EPA change, an updated notification must be received by EPA on or before the start date provided to EPA. Documentation showing evidence of an EBL determination or a copy of the Federal/State/Tribal/local emergency abatement order must be included in the written notification to take advantage of this abbreviated notification period.

(iii) Except as provided in paragraph (e)(4)(ii) of this section, updated notification must be provided to EPA for lead-based paint abatement activities that will begin on a date other than the start date specified in the original notification, as follows:

(A) For lead-based paint abatement activities beginning prior to the start date provided to EPA an updated notification must be received by EPA at least 5 business days before the new start date included in the notification.

(B) For lead-based paint abatement activities beginning after the start date provided to EPA an updated notification must be received by EPA on or before the start date provided to EPA.

(iv) Except as provided in paragraph (e)(4)(ii) of this section, updated notification must be provided to EPA for any change in location of lead-based paint abatement activities at least 5 business days prior to the start date provided to EPA.

(v) Updated notification must be provided to EPA when lead-based paint abatement activities are canceled, or when there are other significant changes including, but not limited to, when the square footage or acreage to be abated changes by more than 20%. This updated notification must be received by EPA on or before the start date provided to EPA, or if work has already begun, within 24 hours of the change.

(vi) The following must be included in each notification:

(A) Notification type (original, updated, cancellation).

(B) Date when lead-based paint abatement activities will start.

(C) Date when lead-based paint abatement activities will end (approximation using best professional judgement).

(D) Firm's name, EPA certification number, address, telephone number.

(E) Type of building (e.g., single family dwelling, multi-family dwelling, child-occupied facilities) on/in which abatement work will be performed.

(F) Property name (if applicable).

(G) Property address including apartment or unit number(s) (if applicable) for abatement work.

(H) Documentation showing evidence of an EBL determination or a copy of the Federal/State/Tribal/local emergency abatement order, if using the abbreviated time period as described in paragraph (e)(4)(ii) of this section.

(I) Name and EPA certification number of the project supervisor.

(J) Approximate square footage/acreage to be abated.

(K) Brief description of abatement activities to be performed.

(L) Name, title, and signature of the representative of the certified firm who prepared the notification.

(vii) Notification must be accomplished using any of the following methods: Written notification, or electronically using the Agency's Central Data Exchange (CDX). Written notification can be accomplished using either the sample form titled “Notification of Lead-Based Paint Abatement Activities” or similar form containing the information required in paragraph (e)(4)(vi) of this section. All written notifications must be delivered by U.S. Postal Service, fax, commercial delivery service, or hand delivery (persons submitting notification by U.S. Postal Service are reminded that they should allow 3 additional business days for delivery in order to ensure that EPA receives the notification by the required date). Instructions and sample forms can be obtained from the NLIC at 1-800-424-LEAD(5323), or on the Internet at http://www.epa.gov/​lead.

(viii) Lead-based paint abatement activities shall not begin on a date, or at a location other than that specified in either an original or updated notification, in the event of changes to the original notification.

(ix) No firm or individual shall engage in lead-based paint abatement activities, as defined in § 745.223, prior to notifying EPA of such activities according to the requirements of this paragraph.

* * * * *