Lead; Fees for Accreditation of Training Programs and Certification of Lead-Based Paint Activities and Renovation Contractors, 49378-49386 [E8-19432]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 73, Number 163 (Thursday, August 21, 2008)]
[Proposed Rules]
[Pages 49378-49386]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-19432]



[[Page 49378]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[EPA-HQ-OPPT-2008-0382; FRL-8372-4]
RIN 2070-AJ40


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

DATES: Comments must be received on or before September 22, 2008.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPPT-2008-0382, by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Mail: Document Control Office (7407M), Office of Pollution 
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460-0001.
     Hand Delivery: OPPT Document Control Office (DCO), EPA 
East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. 
Attention: Docket ID Number EPA-HQ-OPPT-2008-0382. The DCO is open from 
8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the DCO is (202) 564-8930. Such deliveries are 
only accepted during the DCO's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-
2008-0382. EPA's policy is that all comments received will be included 
in the docket without change and may be made available on-line at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov website is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at https://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the docket index 
available at https://www.regulations.gov. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available 
electronically at https://www.regulations.gov, or, if only available in 
hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA 
Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution 
Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of 
operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
Federal holidays. The telephone number of the EPA/DC Public Reading 
Room is (202) 566-1744, and the telephone number for the OPPT Docket is 
(202) 566-0280. Docket visitors are required to show photographic 
identification, pass through a metal detector, and sign the EPA visitor 
log. All visitor bags are processed through an X-ray machine and 
subject to search. Visitors will be provided an EPA/DC badge that must 
be visible at all times in the building and returned upon departure.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby 
Lintner, Regulatory Coordinator, Environmental Assistance Division 
(7408M), Office of Pollution Prevention and Toxics, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address: TSCA-
Hotline@epa.gov.
    For technical information contact: Marc Edmonds, National Program 
Chemicals Division, Office of Pollution Prevention and Toxics, 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001; telephone number: (202) 566-0758; e-mail 
address: edmonds.marc@epa.gov.
    For authorization status information for States, Territories, and 
Indian tribes contact: National Lead Information Center (NLIC) at 1-
800-424-LEAD.

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, if you 
are a firm who must be certified to conduct renovation activities in 
accordance with 40 CFR 745.89, or if you are a professional (individual 
or firm) who must be certified to conduct lead-based paint activities 
in accordance with 40 CFR 745.226.
    This proposed rule applies only in States, Territories, and Indian 
Tribes that do not have authorized programs pursuant to 40 CFR 745.324. 
Potentially affected categories and entities may include, but are not 
limited to:
     Building construction (NAICS code 236), e.g., single 
family housing construction, multi-family housing construction, 
residential remodelers.
     Specialty trade contractors (NAICS code 238), e.g., 
plumbing, heating, and air-conditioning contractors, painting and wall 
covering contractors, electrical contractors, finish carpentry 
contractors, drywall and insulation contractors, siding contractors, 
tile and terrazzo contractors, glass and glazing contractors.
     Real estate (NAICS code 531), e.g., lessors of residential 
building and dwellings, residential property managers.

[[Page 49379]]

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

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and 
then identify electronically within the disk or CD-ROM the specific 
information that is claimed as CBI. In addition to one complete version 
of the comment that includes information claimed as CBI, a copy of the 
comment that does not contain the information claimed as CBI must be 
submitted for inclusion in the public docket. Information so marked 
will not be disclosed except in accordance with procedures set forth in 
40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    i. Identify the document by docket ID number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background

A. What Action is the Agency Taking?

    EPA is issuing this proposed rule for two reasons. First, EPA is 
proposing to revise the existing fees for training providers, firms, 
and individuals under the Lead-Based Paint Activities regulations. 
Second, EPA is proposing to establish fees for training providers and 
renovation firms under the recently issued Renovation, Repair, and 
Painting rule. As specified in TSCA section 402, EPA must establish and 
implement a fee schedule to recover for the U.S. Treasury the Agency's 
costs of administering and enforcing the standards and requirements 
applicable to lead-based paint training programs and contractors. 
Specifically, this proposed rule establishes the fees that will be 
charged, in those States and Indian Tribes without authorized programs, 
for training programs seeking accreditation under 40 CFR 745.225, for 
firms engaged in renovations seeking certification under 40 CFR 745.89, 
and for individuals or firms engaged in lead-based paint activities 
seeking certification under 40 CFR 745.226.

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

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

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

    In 1992, Congress found that low-level lead poisoning was 
widespread among American children, affecting, at that time, as many as 
3,000,000 children under age 6; that the ingestion of household dust 
containing lead from deteriorating or abraded lead-based paint was the 
most common cause of lead poisoning in children; and that the health 
and development of children living in as many as 3,800,000 American 
homes was endangered by chipping or peeling lead paint, or excessive 
amounts of lead-contaminated dust in their homes. Congress further 
determined that the prior Federal response to this threat was 
insufficient and enacted Title X of the Housing and Community 
Development Act of 1992, Public Law 102-550 (also known as the 
Residential Lead-Based Paint Hazard Reduction Act of 1992) (Title X). 
Title X established a national goal of eliminating lead-based paint 
hazards in housing as expeditiously as possible and provided a 
leadership role for the Federal Government in building the 
infrastructure necessary to achieve this goal.
    Title X added a new title to TSCA entitled ``Title IV-Lead Exposure 
Reduction.'' Most of EPA's responsibilities for addressing lead-based 
paint hazards can be found in this title, with TSCA section 402 being 
one source of the rulemaking authority to carry out these 
responsibilities. Section 402(a) of TSCA directs EPA to promulgate 
regulations covering lead-based paint activities to ensure persons 
performing these activities are properly trained, that training 
programs are accredited, and that contractors performing these 
activities are certified. These regulations must contain standards for 
performing lead-based paint activities, taking into account 
reliability, effectiveness, and safety. On August 29, 1996, EPA 
promulgated final regulations under TSCA section 402(a) that govern 
lead-based paint inspections, lead hazard screens, risk assessments, 
and abatements in target housing and child-occupied facilities (also 
referred to as the Lead-Based Paint Activities regulations) (Ref. 1). 
These regulations, codified at 40 CFR part 745, subpart L, contain an 
accreditation program for training providers and training and 
certification requirements for lead-based paint inspectors, risk 
assessors, project designers, abatement supervisors, and abatement 
workers. Work practice standards for lead-based paint activities are 
included. Pursuant to TSCA section 404, provision was made for 
interested States, Territories, and Indian Tribes to apply for and 
receive authorization to administer their own lead-based paint 
activities programs. Requirements applicable to State, Territorial, and 
Tribal programs are codified in 40 CFR part 745, subpart Q.

[[Page 49380]]

    Section 402(a)(3) of TSCA directs the Agency to establish fees to 
recover the cost of administering and enforcing the standards and 
requirements established under TSCA section 402. Specifically, TSCA 
section 402(a)(3) requires EPA to impose fees on persons operating 
training programs accredited under Title IV of TSCA and contractors 
certified in accordance with TSCA section 402(a)(1). On June 9, 1999, 
40 CFR part 745, subpart L, was amended to include a fee schedule for 
training programs seeking EPA accreditation and for individuals and 
firms seeking EPA certification (Ref. 2). These fees were established 
as directed by TSCA section 402(a)(3), which requires EPA to recover 
the cost of administering and enforcing the lead-based paint activities 
requirements in States without authorized programs.
    Section 402(c) of TSCA pertains to renovation and remodeling 
activities. TSCA section 402(c)(3) requires EPA to revise the 
regulations issued under TSCA section 402(a), the Lead-Based Paint 
Activities regulations, to apply to renovation or remodeling activities 
that create lead-based paint hazards. On April 22, 2008, EPA issued a 
final regulation applying a revised version of the Lead-Based Paint 
Activities regulations to renovation, repair, and painting activities 
in target housing and child-occupied facilities (the Renovation, 
Repair, and Painting rule) (Ref. 3). Pursuant to the Renovation, 
Repair, and Painting rule, persons performing covered renovation 
activities must be properly trained, renovators and renovation firms 
must be certified, and persons who provide renovator training must be 
accredited. The requirements of the Renovation, Repair, and Painting 
rule become effective in stages with the entire rule becoming effective 
as of April 22, 2010.

D. How is EPA Proposing to Revise the Existing Fees?

    40 CFR 745.238 contains the fee schedule established in 1999 for 
the Lead-Based Paint Activities regulations under TSCA section 
402(a)(3). As discussed more fully in the economic analysis 
accompanying the final rule establishing the current fee schedule, EPA 
based a great deal of its administrative cost estimates on information 
from existing State lead-based paint certification and accreditation 
programs (Ref. 4). This was necessary because, at the time, EPA did not 
have direct experience in administering a lead-based paint 
accreditation and certification program. This is not the case today. 
EPA has been administering the Federal lead-based paint accreditation 
and certification program for nearly a decade. As a result, EPA has its 
own data upon which to rely to estimate the future costs of 
administering the program.
    To estimate the costs of administering the accreditation and 
certification program, EPA followed the pattern used in the economic 
analysis for the 1999 fee schedule. EPA directly estimated total costs 
for enforcement activities and Headquarters administrative activities 
(e.g., the cost to maintain the Federal Lead-Based Paint Program (FLPP) 
database, the cost to enter data into the database), since these 
activities cannot be linked to specific applications. Enforcement cost 
estimates were generated based on the actual resources currently 
allocated for enforcement. EPA calculated the costs for Regional 
administrative activities on a per application basis, (e.g., the cost 
to review an application, the cost to issue a certificate), because 
these costs depend largely on the number and type of applications 
received. As described in the economic analysis for this proposed rule, 
the information pertaining to the Regional cost of processing 
applications was determined by observing and recording actual Regional 
application processing activities over a 30-day period (Ref. 5). The 
total program cost for EPA Regional administrative activities would be 
the sum of the EPA Regional administrative costs for each type of 
application multiplied by the total number of that type of application 
received.
    Since 1999, EPA has made substantial changes in the way that it 
administers its accreditation and certification program. The transition 
to the FLPP database and the associated centralized data processing has 
resulted in a shift in processing costs from the Regions to 
Headquarters. Despite inflation that has increased the cost of 
government labor by 35 to 40% over this time interval, EPA's cost 
estimates for this proposed rule indicate that the overall costs of the 
abatement program have declined slightly in comparison to the estimates 
made in 1999. In addition, although the economic analysis for this 
proposed rule contains fee estimates broken down by particular 
discipline as well as by type of application, EPA's observation of 
Regional application processing activities indicated that there are not 
likely to be substantial differences in processing costs across the 
disciplines. Thus, EPA's initial estimates for the revised fees do not 
differentiate accreditation and certification fees by discipline (as is 
currently the case).
    EPA's initial fee estimates are as follows, rounded to the nearest 
$10. These estimates are based on average Regional administrative costs 
by application type, and not by discipline, with the estimated 
enforcement costs and estimated Headquarters administrative costs 
apportioned equally across all activities.

     Accreditation for Initial Training Course--$730
     Accreditation for Refresher Training Course--$550
     Re-accreditation for Initial Training Course--$480
     Re-accreditation for Refresher Training Course--$430
     Initial firm certification--$410
     Firm re-certification--$410
     Individual certification--$410
     Individual re-certification--$410

    EPA considered, but is not proposing to revise the existing fees to 
reflect these estimates. As discussed in this unit, EPA is proposing to 
adjust these estimates to lower individual certification and re-
certification fees for workers and for Federally-recognized Indian 
Tribes and Tribal employees. Nevertheless, EPA requests comment on 
whether these estimated fees should be imposed without such an 
adjustment.
    One reason that EPA is proposing to adjust its estimates to lower 
individual certification and re-certification fees is because 
commenters on the 1999 fee schedule expressed concern about the fee for 
individual worker certification. Several believed that the total impact 
of training, certification, and lost wages during training would be 
cost-prohibitive for workers, who are typically hourly wage-earners. 
Other commenters contended that workers would move from firm to firm 
and in and out of the business, which would make the proposed worker 
certification fee cost-prohibitive for firms. Finally, some commenters 
believed that the proposed worker certification fee has a 
disproportionately negative impact on efforts to train and certify low-
income persons from the neighborhoods most affected by lead poisoning. 
As a result of these comments, EPA lowered the worker certification fee 
by adjusting the balance of administrative and enforcement costs not 
directly attributable to a particular application between workers and 
firms. Thus, in the final rule, the individual certification fees 
ranged from $520 for risk assessors to $280 for workers. Although EPA 
is not proposing to differentiate among the non-worker disciplines 
(i.e., between risk assessors and supervisors), EPA believes that the 
concerns pertaining to the worker discipline expressed by these 
commenters are likely to be equally applicable today.

[[Page 49381]]

    In addition, EPA has received input from stakeholders that 
indicates that Indian Tribes may be having difficulty paying firm and 
individual certification fees. While TSCA section 402(a)(3) exempts 
State, local government, and non-profit training programs from Federal 
accreditation fees, it does not provide an exemption for certification 
fees. It is EPA's understanding that Indian Tribes typically incur 
certification fees for Tribal employees who perform lead-based paint 
inspections and risk assessments in Tribal housing. EPA estimates that 
only a small number of Indian Tribes and Tribal employees will seek 
certification each year to perform these activities. Accordingly, if 
EPA were to impose only a nominal certification fee on Tribal firms 
(Indian Tribes seeking firm certification) and Tribal employees, and 
apportion the remainder of the costs for these certifications across 
all of the other accreditation and certification activities, the impact 
on the resulting fee estimates for all of the other fee activities is 
negligible.
    Therefore, in revising the existing fees, EPA is proposing to 
establish the fees for worker certification and re-certification at 
$100 less than other individual certifications and re-certifications. 
Because EPA must recover all of the estimated costs of operating the 
accreditation and certification program, this $100 reduction per 
expected worker certification or re-certification application must be 
recovered through fees charged for other applications. EPA believes 
that it would be more equitable to spread the costs represented by the 
$100 reduction over all of the fees charged to training course 
providers and firms. The proposed fee schedule set forth below does so. 
In addition, EPA is also proposing to establish nominal fees for firm 
certification and re-certification for Federally-recognized Indian 
Tribes and nominal fees for individual certification and re-
certification for Tribal employees. Finally, EPA is also proposing to 
keep the certificate replacement fee at $15, the certification exam fee 
at $70 and the multi-jurisdiction registration fee at $35. Accordingly, 
EPA is proposing to revise the existing fees in 40 CFR 745.238 as 
follows:
     Accreditation for Initial Training Course--$870.
     Accreditation for Refresher Training Course--$690.
     Re-accreditation for Initial Training Course--$620.
     Re-accreditation for Refresher Training Course--$580.
     Initial firm certification--$550.
     Initial Tribal firm certification--$20.
     Firm re-certification--$550.
     Tribal firm re-certification--$20.
     Individual certification (for all disciplines except 
worker)--$410.
     Individual worker certification--$310.
     Individual Tribal certification (all disciplines)--$10.
     Individual re-certification (for all disciplines except 
worker)--$410.
     Individual worker re-certification--$310.
     Individual Tribal re-certification (all disciplines)--$10.
    As discussed in the economic analysis for this proposed rule, the 
estimated enforcement costs and estimated Headquarters administrative 
costs are not directly attributable to a specific application. EPA 
considered apportioning those costs in such a way as to generate fee 
estimates that are more similar to the current fees. The fees in the 
following list are based on the average Regional administrative costs 
by application type with the estimated enforcement costs and estimated 
Headquarters administrative costs apportioned in a way that makes them 
similar to the current fees. Although EPA is not proposing to establish 
fees in this manner, such an apportionment results in the following 
estimates:
     Accreditation for Initial Training Course--$2,140.
     Accreditation for Refresher Training Course--$950.
     Re-accreditation for Initial Training Course--$1,350.
     Re-accreditation for Refresher Training Course--$650.
     Initial firm certification--$510.
     Firm re-certification--$410.
     Individual certification (for all disciplines except 
worker)--$440.
     Individual worker certification--$270.
     Individual re-certification (for all disciplines except 
worker)--$380.
     Individual worker re-certification--$230.
    The apportionment of the estimated enforcement and Headquarters 
administrative costs in this way results in a substantially higher fee 
for accreditation and re-accreditation of training programs, as well as 
for firm certification. The individual certification and re-
certification fees are correspondingly lower. EPA requests comment on 
whether the enforcement and Headquarters administrative costs should be 
apportioned this way to make the revised fees being proposed in this 
document more consistent with the existing fees.

E. What Renovation, Repair, and Painting Fees are being Proposed?

    EPA interprets the language of TSCA section 402(c)(3), which 
requires EPA to revise the TSCA section 402(a) regulations to apply to 
renovation and remodeling activities that create lead-based paint 
hazards, to include the establishment of fees as directed by TSCA 
section 402(a)(3). Therefore, EPA is also proposing to establish fees 
for the accreditation and re-accreditation of persons who provide 
renovator or dust sampling technician training and fees for the 
certification and re-certification of renovation firms. In accordance 
with the Renovation, Repair, and Painting Rule, beginning on April 22, 
2009, training course providers may apply to EPA for renovator or dust 
sampling technician course accreditation (Ref. 3). Renovation firms may 
begin applying for certification to perform renovation, repair, and 
painting activities on October 22, 2009.
    EPA's method for estimating fees to recover the costs of 
administering the renovation, repair, and painting accreditation and 
certification program is similar to the method used to estimate the 
proposed revisions to the existing fees in 40 CFR 745.238. Because the 
training provider accreditation and firm certification processes are 
virtually identical under the Lead-Based Paint Activities regulations 
and the Renovation, Repair, and Painting rule, EPA used the same 
estimates for Regional administrative costs in calculating all of the 
fees being proposed in this action. However, because the substantive 
provisions of the Renovation, Repair, and Painting rule will not be 
fully implemented until April 2010, EPA does not have actual 
application totals upon which to base its estimates of the number of 
accreditation and certification applications that will be received in 
the future. In addition, EPA is not currently conducting enforcement 
activities related to the Renovation, Repair, and Painting Program, so 
the enforcement costs for the program must be estimated based on 
projected EPA resources to be devoted to enforcement of the program, 
rather than on actual enforcement activities. As for the initial 
estimates for the Lead-Based Paint Activities regulations accreditation 
and certification fees, the estimated enforcement costs and estimated 
Headquarters administrative costs for the Renovation, Repair, and 
Painting rule accreditation and certification program have been 
apportioned equally across all activities. A more detailed description 
of how these costs were calculated is presented

[[Page 49382]]

in the economic analysis for this proposed rule (Ref. 5). Based upon 
its estimate of the costs of administering the Renovation, Repair, and 
Painting Program, EPA is proposing to establish the following fees:
     Accreditation for Initial Renovator or Dust Sampling 
Technician Course--$560.
     Accreditation for Refresher Renovator or Dust Sampling 
Technician Course--$400.
     Re-accreditation for Initial Renovator or Dust Sampling 
Technician Course--$340.
     Re-accreditation for Refresher Renovator or Dust Sampling 
Technician Course--$310.
     Initial renovation firm certification--$300.
     Initial Tribal renovation firm certification--$20.
     Renovation firm re-certification--$300.
     Tribal renovation firm re-certification--$20.
    EPA is not proposing to establish individual certification and re-
certification fees because the Renovation, Repair, and Painting rule 
does not require individuals to apply to EPA for certification. 
Eliminating this requirement also eliminates a significant portion of 
the Regional and Headquarters administrative costs that would have to 
be recovered by a certification fee. The portion of the enforcement 
costs that would have been attributed to individuals has been 
distributed evenly across the Renovation, Repair, and Painting Program 
fees for training provider accreditation and firm certification.
    EPA's economic analysis for this proposed rule calculates 
administrative and enforcement costs for the Lead-Based Paint 
Activities regulations separately from those costs for the Renovation, 
Repair, and Painting rule. This is primarily due to the differences in 
estimation methods necessary for an existing, mature program, the Lead-
Based Paint Activities regulations, as compared to a new program for 
which implementation has not yet begun. This approach results in 
similar fees for firm certification and re-certification under the two 
programs, but the Renovation, Repair, and Painting Program 
accreditation and re-accreditation fees are considerably lower than the 
corresponding fees for the Lead-Based Paint Activities regulations. The 
administrative and enforcement cost estimates for these two programs 
could be combined to yield accreditation, re-accreditation, firm 
certification, and firm re-certification fees that are the same for 
both programs. EPA requests comment on whether the estimated costs for 
these two programs should be combined in such a manner. Commenters 
should keep in mind that the 212,000 renovation firm certification 
applications that EPA expects to receive in the first year of the 
Renovation, Repair, and Painting Program vastly outweigh the numbers of 
other types of applications under either regulation that EPA expects to 
receive in the same time period. As a result, modest adjustments in 
either direction to the renovation firm certification fees will result 
in dramatic changes to the accreditation fees.
    Although EPA believes that this action will not have a significant 
economic impact on a substantial number of small entities, the Agency 
understands that many of the firms that must comply with the 
Renovation, Repair, and Painting rule will be sole proprietors, many of 
which earn low annual revenues. EPA estimates that, of the 211,721 
firms seeking certification, approximately 104,712 of them are sole 
proprietorships with no employees. Because the fees associated with the 
rule will have the greatest impact on firms earning low revenues, the 
Agency is considering reducing the certification fee for renovation 
firms that have annual revenues below $25,000 based on gross receipts.
    EPA requests comment on whether firms with annual revenues below 
$25,000 should pay a reduced firm certification fee of $100. This 
reduction would be offset by increasing the fees for the other firms 
and/or training providers. If the reduction is passed on to other firms 
that do not qualify for the lower fee, these firms would pay a 
certification fee of $370. EPA requests comment on reducing fees for 
certain small businesses, whether these fees would be appropriate, what 
level of revenue should trigger the lower fee, or whether a measure 
other than gross receipts, such as number of employees, should be used 
to determine who qualifies for the reduced fee. The Agency also 
requests comment on how the reduction in fees should be distributed 
between training providers and firms.
    When EPA estimated the number of firms that would qualify for the 
reduced certification fee, the Agency used data from the U.S. Census 
Bureau and a study published by the Joint Center for Housing Studies of 
Harvard University for estimates of the total numbers of firms that are 
sole proprietorships and earn below $25,000 annually. EPA also relied 
on the following assumption from the Economic Analysis for the final 
Renovation, Repair, and Painting rule regarding which lessors and 
property managers would seek firm certification which states ``that 
only establishments with employees are expected to seek certification; 
non-employers are unlikely to have the time or manpower to perform 
renovations themselves and are more likely to hire an outside 
contractor for work that disturbs more than 6 square feet of a painted 
surface.'' EPA solicits comments on its numerical estimates of the 
numbers of lessors and property managers, including those without 
employees, that will require firm certification. The Agency is 
particularly interested in any data that would help in refining these 
estimates.
    EPA also requests comments on whether the final rule should 
establish lower Federal fees for State and local governments seeking 
firm certification and their employees seeking individual 
certification. These governments are already exempt under TSCA section 
402(a)(3) from paying Federal accreditation fees and EPA believes some 
additional cost savings may be justified. The Agency is aware that 
State and local governments may spend a significant portion of 
abatement program funds on certifications thereby reducing funds 
available for performing important public services related to 
abatements. To address this funding issue, EPA is considering lowering 
the Federal certification fees for State and local governments under 
the Lead-Based Paint Activities regulations and Renovation, Repair, and 
Painting rule. For example, governments could pay 50% of the firm and 
individual fees proposed in this action. If fees are decreased for 
governments then fees for non-government firms and individuals would 
have to be increased. At this time the Agency does not know how many 
State and local governments fall under this proposed rule and thus can 
not estimate how a decrease in fees for governments would effect other 
fees. Thus, EPA requests comment on whether certification fees should 
be lower for State and local governments and their employees, what 
those fees should be, and how to apportion the remainder of the costs 
for these certifications across all of the other accreditation and 
certification activities. The Agency also requests comment on how many 
State and local government firms and individuals must comply with the 
Lead-Based Paint Activities regulations and Renovation, Repair, and 
Painting rule. This information would help EPA determine the impact 
that lowering the fees for governments would have on accreditation and 
certification fees for non-government entities.

[[Page 49383]]

III. References

    The following is a list of the documents that are specifically 
referenced in this proposed rule and placed in the public docket that 
was established under docket ID number EPA-HQ-OPPT-2008-0382. For 
information on accessing the docket, refer to the ADDRESSES unit.
    1. EPA. Lead; Requirements for Lead-Based Paint Activities in 
Target Housing and Child-Occupied Facilities. Final Rule. Federal 
Register (61 FR 45778, August 29, 1996) (FRL-5389-9).
    2. EPA. Lead; Fees for Accreditation of Training Programs and 
Certification of Lead-based Paint Activities Contractors. Final Rule. 
Federal Register (64 FR 31092, June 9, 1999) (FRL-6058-6).
    3. EPA. Lead; Renovation, Repair, and Painting Program. Final Rule. 
Federal Register (73 FR 21692, April 22, 2008) (FRL-8355-7)
    4. EPA. Office of Pollution Prevention and Toxics (OPPT). Economic 
Analysis of the Final TSCA Section 402(a)(3) Lead-based Paint 
Accreditation and Certification Fee Rule (February 1999).
    5. EPA. OPPT. Economic Analysis for the TSCA Section 402 Lead-Based 
Paint Accreditation and Certification Fee Rule (June 2008).

IV. Statutory and Executive Order Reviews

A. Executive Order 12866

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866, entitled Regulatory Planning and Review 
(58 FR 51735, October 4, 1993) and is therefore not subject to review 
under the Executive Order. EPA has prepared an economic analysis of the 
potential impact of this action. The impact of the fees for the Lead-
based Paint Activities regulations is estimated to be $1.2 million per 
year, or $6.1 million over the next 5 years. The impact of the fees for 
the Renovation, Repair, and Painting Program is estimated to be $61 
million in the first year, and $22 million in each of the following 4 
years, or $150 million over the next 5 years. EPA's analysis is 
contained in a document entitled Economic Analysis of the TSCA Section 
402 Lead-Based Paint Accreditation and Certification Fee Rule. This 
document is available as a part of the public docket for this action.

B. Paperwork Reduction Act

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

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, small entity is defined in accordance with section 601 
of RFA as:
    1. A small business as defined by the Small Business 
Administration's (SBA) regulations at 13 CFR 121.201.
    2. A small governmental jurisdiction that is a government of a 
city, county, town, school district, or special district with a 
population of less than 50,000.
    3. A small organization that is any not-for-profit enterprise which 
is independently owned and operated and is not dominant in its field.
    After considering the economic impacts of this proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The small 
entities that are potentially directly regulated by this proposed rule 
include: Small businesses (including abatement and renovation 
contractors, environmental testing firms, and property owners and 
managers); small nonprofits (including day care centers, private 
schools, and advocacy groups); and small governments (local 
governments, school districts).
    This proposal would result in a slight overall decrease in the fees 
currently assessed under the Lead-Based Paint Activities regulations. 
Fees for training providers will decrease with the exception of the 
project designer course refresher. Individual fees will decrease for 
the certification and recertification of risk assessors, and the 
certification of supervisors and project designers. Consequently, EPA 
estimates that this portion of the proposed rule will have no adverse 
impact on small entities; in fact the small entities affected by the 
proposed rule will incur cost savings. With respect to the fees for the 
Renovation, Repair, and Painting rule, EPA estimates that there are an 
average of 204,958 small entities that would be affected by this 
proposed rule. Of these, there are an estimated 179,820 small 
businesses with an average impact ranging from 0.007% to 0.220%, 18,088 
small non-profits with an average impact ranging from 0.006% to 0.097%, 
and 7,050 small governments with an average impact ranging from 0.0004% 
to 0.002%.
    Although this proposed rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless has 
tried to reduce the impact of this proposed rule on small entities. In 
response to concerns about impacts on abatement workers and the firms 
that employ them, EPA is proposing reduced fees for worker 
certification. However, TSCA section 402(a)(3) requires EPA to recover 
the costs of administering its lead training course provider 
accreditation and contractor certification program through fees. To the 
extent that EPA lowers accreditation or certification fees for small 
businesses (or some subset of small businesses), larger businesses 
would be required to contribute more. We continue to be interested in 
the potential impacts of the proposed rule on small entities and 
welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
1 year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 of 
UMRA do not apply when they are inconsistent with applicable law. 
Moreover, section 205 of UMRA allows

[[Page 49384]]

EPA to adopt an alternative other than the least costly, most cost-
effective, or least burdensome alternative if the Administrator 
publishes with the final rule an explanation why that alternative was 
not adopted. Before EPA establishes any regulatory requirements that 
may significantly or uniquely affect small governments, including 
Tribal governments, it must have developed under section 203 of UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    EPA has determined that this proposed rule 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. EPA has prepared an economic analysis of 
the potential impact of this action, which is estimated to be $156 
million over the next 5 years which is an average of $31 million per 
year. Thus, this proposed rule is not subject to the requirements of 
sections 202 and 205 of UMRA.
    In addition, EPA has determined that this proposed rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments. Small governments may perform lead-based paint 
inspections, risk assessments, or abatements, or operate schools that 
are child-occupied facilities. EPA generally measures a significant 
impact under UMRA as being expenditures, in the aggregate, of more than 
1% of small government revenues in any 1 year. As explained in Unit 
III.C., the proposed rule is expected to result in small government 
impacts well under 1% of revenues. So EPA has determined that the 
proposed rule does not significantly affect small governments. Nor does 
the proposed rule uniquely affect small governments, as the proposed 
rule is not targeted at small governments, does not primarily affect 
small governments, and does not impose a different burden on small 
governments than on other entities that perform regulated activities.

E. Federalism

    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 proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This proposal merely seeks to 
establish fees, as required by TSCA sections 402(a)(3) and 402(c)(3), 
to recover the costs of administering the previously promulgated 
Federal lead-based paint accreditation and certification programs. 
Thus, Executive Order 13132 does not apply to this proposed rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. Tribal Implications

    Executive Order 13175, entitled Consultation and Coordination with 
Indian Tribal Governments (65 FR 67249, November 6, 2000), requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' This proposed rule does not have 
tribal implications, as specified in Executive Order 13175, because 
this proposal would only establish fees, as required by TSCA section 
402(a)(3) and 402(c)(3), to recover the costs of administering the 
previously promulgated Federal Lead-Based Paint Accreditation and 
Certification Programs. Thus, Executive Order 13175 does not apply to 
this proposed rule. Nonetheless, EPA specifically solicits additional 
comment on this proposed rule from Tribal officials.

G. Children's Health Protection

    This action is not subject to Executive Order 13045, entitled 
Protection of Children from Environmental Health Risks and Safety Risks 
(62 FR 19885, April 23, 1997) because it is not economically 
significant as defined in Executive Order 12866, and because the Agency 
does not believe the environmental health or safety risks addressed by 
this action present a disproportionate risk to children. This proposal 
merely seeks to establish fees, as required by TSCA sections 402(a)(3) 
and 402(c)(3), to recover the costs of administering the previously 
promulgated Federal lead-based paint accreditation and certification 
programs.

H. Energy Effects

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

I. Technology Standards

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

J. Environmental Justice

    Executive Order 12898, entitled, Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994) establishes Federal 
executive policy on environmental justice. Its main provision directs 
Federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations

[[Page 49385]]

because it does not affect the level of protection provided to human 
health or the environment. This proposal merely seeks to establish 
fees, as required by TSCA sections 402(a)(3) and 402(c)(3), to recover 
the costs of administering the previously promulgated Federal lead-
based paint accreditation and certification programs.

List of Subjects in 40 CFR Part 745

    Environmental protection, Fees, Lead, Lead-based paint, Renovation.

    Dated: August 13, 2008.
Stephen L. Johnson,
Administrator.
    Therefore, it is proposed that 40 CFR chapter I be amended as 
follows:

PART 745--[AMENDED]

    1. The authority citation for part 745 would continue to read as 
follows:

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

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


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

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


               Certification and Accreditation Fee Levels
------------------------------------------------------------------------
                                                       Re-accreditation
        Training Program             Accreditation      (every 4 years)
------------------------------------------------------------------------
Initial Renovator or Dust         $560                $340
 Sampling Technician Course
------------------------------------------------------------------------
Refresher Renovator or Dust       $400                $310
 Sampling Technician Course
------------------------------------------------------------------------
Renovation Firm                   Certification       Re-certification
                                                       (every 5 years)
------------------------------------------------------------------------
Firm                              $300                $300
Tribal Firm.....................  $20...............  $20
------------------------------------------------------------------------


    (2) Lost certificate. A $15 fee will be charged for the replacement 
of a firm certificate.
    (c) Certificate replacement. Firms seeking certificate replacement 
must:
    (1) Complete the applicable portions of the ``Application for 
Firms'' in accordance with the instructions provided.
    (2) Submit the application and a payment of $15 in accordance with 
the instructions provided with the application package.
    (d) Failure to remit fees. (1) EPA will not provide certification, 
re-certification, accreditation, or re-accreditation for any firm or 
training program that does not remit fees described in paragraph (b) of 
this section in accordance with the procedures specified in 40 CFR 
745.89.
    (2) EPA will not replace a certificate for any firm that does not 
remit the $15 fee in accordance with the procedures specified in 
paragraph (c) of this section.
    3. Section 745.238 of subpart L is amended as follows:
    a. Revise the table in paragraph (c)(1).
    b. Remove the phrase ``to Conduct Lead-based Paint Activities'' in 
paragraph (d)(1)(ii).
    c. Remove the phrase ``to Conduct Lead-based Paint Activities'' in 
paragraph (e)(1)(ii).


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

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


               Certification and Accreditation Fee Levels
------------------------------------------------------------------------
                                                       Re-accreditation
                                                        (every 4 years,
        Training Program             Accreditation        see 40 CFR
                                                       745.225(f)(1) for
                                                           details)
------------------------------------------------------------------------
Initial Course                                        ..................
 Inspector......................  $870..............  $620
 Risk assessor..................  $870..............  $620
 Supervisor.....................  $870..............  $620
 Worker.........................  $870..............  $620
 Project Designer...............  $870..............  $620
------------------------------------------------------------------------
Refresher Course                                      ..................
 Inspector......................  $690..............   $580
 Risk assessor..................  $690..............   $580
 Supervisor.....................  $690..............  $580
 Worker.........................  $690..............   $580
 Project Designer...............  $690..............  $580
------------------------------------------------------------------------

[[Page 49386]]

 
Lead-based Paint Activities--      Certification      Re-certification
 Individual                                            (every 3 years,
                                                       see 40 CFR
                                                       745.226(e)(1) for
                                                       details)
------------------------------------------------------------------------
Inspector                          $410               $410
Risk assessor...................   $410.............   $410
Supervisor......................  $410..............   $410
Worker..........................  $310..............   $310
Project designer................   $410.............  $410
Tribal certification (all         $10...............  $10
 disciplines).
------------------------------------------------------------------------
Lead-based Paint Activities--      Certification      Re-certification
 Firm                                                  (every 3 years,
                                                       see 40 CFR
                                                       745.226(f)(7) for
                                                       details)
------------------------------------------------------------------------
Firm                               $550               $550
Tribal Firm.....................  $20...............  $20
------------------------------------------------------------------------

* * * * *
[FR Doc. E8-19432 Filed 8-20-08; 8:45 am]
BILLING CODE 6560-50-S