[Federal Register Volume 63, Number 170 (Wednesday, September 2, 1998)]
[Proposed Rules]
[Pages 46734-46736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23454]
[[Page 46734]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[OPPTS-62158; FRL-6017-7]
RIN 2070-AD11
Lead; Fees for Accreditation of Training Programs and
Certification of Lead-based Paint Activities Contractors
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: In this issue of the Federal Register, the EPA is publishing a
final rule, pursuant to section 402(a)(3) of the Toxic Substances
Control Act (TSCA), to establish fees for the accreditation of training
programs and certification of individuals and firms engaged in lead-
based paint activities. As specified in TSCA 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
action establishes the fees, 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.
A detailed rationale for the promulgation of this rule is presented
in the preamble to the final rule, along with the details of the
action. With this corresponding notice in the Proposed Rules Section of
this Federal Register, EPA is providing an opportunity for the public
to submit comment on the provisions of the final rule. If no
significant adverse comment is submitted in response to this action,
the final rule will become effective without any further action by the
Agency. If, however, a significant adverse comment is received during
the comment period, those aspects of the rule addressed by the
commenter(s) will be withdrawn and the public comments received will be
addressed in a subsequent final rule. Any parties interested in
commenting on this action should do so at this time.
DATES: Comments must be received on or before October 2, 1998.
ADDRESSES: Comments may be submitted by mail, electronically, or in
person. Please follow the detailed instructions for each method as
provided below in Unit III. of the SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT: For technical information: Mike
Wilson, Project Manager, National Program Chemicals Division (7404),
Office of Pollution Prevention and Toxics, U.S. Environmental
Protection Agency, 401 M St., SW., Washington, DC 20460; telephone:
202-260-4664; fax: 202-260-1580; e-mail: wilson.mike@epa.gov. For
general information: Susan B. Hazen, Director, Environmental Assistance
Division (7408), Rm. ET-543B, Office of Pollution Prevention and
Toxics, U.S. Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460; telephone: 202-554-1404, TDD: 202-554-0551; e-
mail: TSCA-Hotline@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 TSCA section 402 and
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 TSCA section 402 and 40 CFR 745.226. Potentially affected
categories and entities may include:
------------------------------------------------------------------------
Examples of Regulated
Category Entities
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Lead abatement professionals.............. Workers, supervisors,
inspectors, risk assessors
and project designers
engaged in lead-based paint
activities
Firms engaged in lead-based
paint activities
Training programs......................... Training programs providing
training services in lead-
based paint activities
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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 regulated. To determine whether you
or your business is regulated by this action, you should carefully
examine the provisions in the regulatory text. 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 or Copies of this or Other
Support Documents?
A. Electronically
You may obtain electronic copies of this document and various
support 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 or by Phone
If you have any questions or need additional information about this
action please contact one of the persons identified in the ``FOR
FURTHER INFORMATION CONTACT'' section. In addition, the official record
for this action has been established under docket control number
[OPPTS-62158], (including comments and data submitted electronically as
described below). A public version of this record, including printed,
paper versions of any electronic comments, which does not include any
information claimed as Confidential Business Information (CBI), is
available for inspection in Rm. NEB-607, Waterside Mall, 401 M St.,
SW., Washington, DC, from 8:30 a.m. to 4 p.m., Monday through Friday,
excluding legal holidays. The Document Control Office telephone number
is 202-260-7093.
III. How Can I Respond to This Action?
A. How and to Whom Do I Submit Comments?
You may submit comments through the mail, in person, or
electronically. Be sure to identify the appropriate docket number
[OPPTS-62158] in your correspondence.
1. By mail. Submit written comments to: Document Control Office
(7407), Office of Pollution Prevention and Toxics (OPPT), U.S.
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460.
2. In person or by courier. Deliver written comments to: Document
Control Office in Rm. G-099, Waterside Mall, 401 M St., SW.,
Washington, DC; telephone: 202-260-7093.
3. Electronically. Submit your comments and/or data electronically
by e-mail to: oppt.ncic@epa.gov. Do not submit any information
electronically that you consider to be CBI. Submit electronic comments
in ASCII file format avoiding the use of special characters and any
form of encryption.
[[Page 46735]]
Comment and data will also be accepted on standard computer disks in
WordPerfect 5.1/6.1 or ASCII file format. All comments and data in
electronic form must be identified by the appropriate docket control
number. You may also file electronic comments and data online at many
Federal Depository Libraries.
B. How Should I Handle CBI Information in My Comments?
You may claim information that you submit in response to this
action as CBI by marking any part or all of that information as CBI.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2. A copy of the comment that does
not contain CBI must be submitted for inclusion in the public record.
All CBI claims must be made at the time the information is submitted.
Failure to make a CBI claim at the time of submittal will be considered
a waiver of such claims. Information not marked confidential will be
included in the public docket by EPA without prior notice. If you have
any questions about CBI or the procedures for claiming CBI, please
consult with the technical person identified in the ``FOR FURTHER
INFORMATION CONTACT'' section.
IV. Why Is EPA Issuing a Final Rule Simultaneously With this
Proposal?
In this same issue of the Federal Register EPA is publishing a
final rule identical to this proposal. EPA believes that providing
notice and an opportunity to comment is unnecessary and would be
contrary to the public interest. As such, two independent bases exist
which qualify the final rule for the good cause exemption in the
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B) that allows
agencies in limited circumstances to issue rules without first
providing notice and an opportunity for comment. Virtually all of the
significant policy choices associated with the rule have already been
made by Congress, and it is in most respects merely a technical
application of statutory directive.
There are three major components to the rulemaking. First, the rule
is based on an estimate of EPA administrative and enforcement costs.
EPA is clearly in the best position to provide this estimate, as it
necessarily involves consideration of internal EPA operating
procedures, costs, and personnel practices. Thus, it is unlikely that
the public will be able to provide meaningful comment on this aspect of
the rulemaking.
Second, the rule reflects a policy choice on how EPA costs are to
be distributed among those required to pay fees. Although those
participants paying the highest fees under the rule may prefer that EPA
flatten the fee structure so that their fees would be reduced, EPA has
already considered this option and has determined that such an approach
would be inequitable. In light of EPA's policy choice, the assessment
of individual fees turns on a technical assessment of EPA
administrative and enforcement costs for each category of participant.
Once again, it is unlikely that the public can provide meaningful input
on EPA's estimates of its own program costs.
The third component of the rule relates to fee waivers. Although
the rule largely incorporates statutory directives in this regard (as
to State and local governments, and non-profit training providers), it
also provides a fee waiver for Indian Tribes, and specifies that
contractors training their own employees will not be entitled to a fee
waiver. Since the fee waiver for Indian Tribes is consistent with the
statutory waivers provided for States and local governments, is
consistent with EPA treatment of Indian Tribes for purposes of
authorizing Tribal lead-based paint programs under 40 CFR 745.320-
745.339, and relieves (rather than imposes) a regulatory requirement,
EPA does not expect that the public would provide adverse comment on
the Tribal fee waiver.
EPA recognizes that there may be some who are dissatisfied by the
Agency's decision not to waive fees for contractors training their own
employees, but EPA does not expect that the public can suggest a basis
for a fee waiver that will override the objective of maximizing
recovery of EPA costs associated with this program. Thus, EPA believes
that providing an opportunity for public comment on the rule is
``unnecessary.'' While not required to do so under the APA, EPA is
willing to delay the effective date of the rule pending the unlikely
receipt of significant adverse comments that would inform the decision
in ways not already considered. Such a delay seems prudent to avoid the
possibility and the resultant confusion, of adjusting the fees once the
application process has started. If significant adverse comment is
received during the 30-day period (described in more detail below), EPA
will issue a document to withdraw those aspects of the final rule which
are addressed by the adverse comment before its effective date.
The Agency is scheduled to begin receiving applications for
accreditation of training providers in September of 1998. The Agency
believes that it is critically important for the necessary fees to be
established prior to the initiation of the application period. Without
established fees, it will be more difficult for applicants to determine
the extent to which they may wish to participate in the program.
Without a fee rule in place, EPA would need to assess fees on a case-
by-case basis based on actual EPA costs in reviewing individual
applications and on estimated future administrative and enforcement
costs. This approach would burden EPA with the requirement of keeping
track of all time spent processing individual applications. The use of
a case-by-case assessment would undoubtedly prolong the application
process and result in uncertainty to potential program applicants who
would not know the amount of fees they will be required to pay until
their application is fully processed. Delaying issuance of the rule to
allow an opportunity for public comment would require use of the case-
by-case assessment process in the interim pending finalization of a fee
rule and would not, therefore, be in the public interest.
Although the Agency believes that it is appropriate to issue a
final fee rule, EPA is providing an opportunity for the public to
submit comment on it. If no significant adverse comment is submitted
within 30 days of publication of the final rule in the Federal
Register, the final rule will become effective 45 days after
publication without any further action by the Agency. If, however, a
significant adverse comment is received during the comment period,
those aspects of the rule addressed by the commenters will be withdrawn
and the public comments received will be addressed in a subsequent
final rule. This proposed rule ensures that the public is aware of its
opportunity to comment, and will provide the APA-required proposal in
the event that significant adverse comment is received and issuance of
a subsequent final rule is necessary.
V. What Action Is EPA Taking?
For detailed information about the action, see the direct final
rule which is located in the Rules section of this Federal Register,
and are summarized below.
[[Page 46736]]
VI. Do Executive Orders 12875 and 13084 Require EPA to Consult With
States and Indian Tribal Governments Prior to Taking the Action in
this Notice?
A. Executive Order 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 the Office of Management and Budget (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, 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. As explained in more detail in Unit IV. of
this document, the statutory waivers provided for States and local
governments are being extended to Indian Tribes. Accordingly, the
requirements of section 1(a) of Executive Order 12875 do not apply to
this rule.
B. 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. As explained in more detail
in Unit IV. of this document, the statutory waivers provided for States
and local governments are being extended to Indian Tribes. Accordingly,
the requirements of section 3(b) of Executive Order 13084 do not apply
to this rule.
VII. How Do Other Regulatory Assessment Requirements Apply to this
Action?
The applicability of various regulatory assessment provisions to
this action are discussed in the preamble to the corresponding final
rule published elsewhere in the Rules section of this issue of the
Federal Register, and summarized below.
Under Executive Order 12866, entitled ``Regulatory Planning and
Review'' (58 FR 51735, October 4, 1993), it has been determined that
this rule is not ``significant'' and is not subject to OMB review. This
rule does not contain any information collections subject to OMB
approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et.
seq., or impose any enforceable duties on State and local governments
or impose private sector exependitures of $100 million or more annually
so as to trigger applicablity of the Unfunded Mandates Reform Act of
1995 (UMRA) (Pub. L. 104-4). Nor does it require any special
considerations as required by Executive Order 12898, entitled ``Federal
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations'' (59 FR 7629, February 16, 1994), or require
OMB review in accordance with Executive Order 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997). In addition, this action does
not involve any standards that would require Agency consideration
pursuant to section 12(d) of the National Technology Transfer and
Advancement Act (NTTAA) (Pub. L. 104-113).
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. This certification is based on an analysis that the Agency
prepared for this action, which indicates that the rule should not
place undue burden on small business. Information relating to this
determination will be provided to the Chief Counsel for Advocacy of the
Small Business Administration upon request. This information is also
included in the public record for this action as a part of the economic
analysis.
List of Subjects in 40 CFR Part 745
Environmental Protection, Fees, Hazardous Substances, Lead
poisoning, Reporting and recordkeeping requirements.
Dated: August 25, 1998.
Carol M. Browner,
Administrator.
[FR Doc. 98-23454 Filed 8-31-98; 11:24 am]
BILLING CODE 6560-50-F
