Requirements for Notification, Evaluation and Reduction of Lead-Based Paint Hazards in Federally Owned Residential Property and Housing Receiving Federal Assistance; Response to Elevated Blood Lead Levels, 60304-60329 [2016-20955]
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Federal Register / Vol. 81, No. 170 / Thursday, September 1, 2016 / Proposed Rules
Freedom of Information request. The
Freedom of Information office address is
available on the Agency’s Web site at
https://www.fda.gov.
Dated: August 29, 2016.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2016–21062 Filed 8–31–16; 8:45 am]
BILLING CODE 4164–01–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Part 35
[Docket No. FR–5816–P–01]
RIN 2501–AD77
Requirements for Notification,
Evaluation and Reduction of LeadBased Paint Hazards in Federally
Owned Residential Property and
Housing Receiving Federal
Assistance; Response to Elevated
Blood Lead Levels
Office of Lead Hazard Control
and Healthy Homes, HUD.
ACTION: Proposed rule.
AGENCY:
This proposed rule would
amend HUD’s lead-based paint
regulations on reducing blood lead
levels in children under age 6 who
reside in federally-owned or -assisted
pre-1978 housing and formally adopt
the revised definition of ‘‘elevated blood
lead levels’’ in children under the age of
6 in accordance with guidance of the
Centers for Disease Control and
Prevention (CDC), and establish more
comprehensive testing and evaluation
procedures for the housing where such
children reside. In 2012, the CDC issued
guidance revising its definition of
elevated blood lead level in children
under age 6 to be a blood lead level
based on the distribution of blood lead
levels in the national population. Since
CDC’s revision of its definition, HUD
has applied the revised definition to
funds awarded under its Lead-Based
Paint Hazard Control grant program and
its Lead Hazard Reduction
Demonstration grant program, and has
updated its Guidelines for the
Evaluation and Control of Lead-Based
Paint Hazards in Housing to reflect this
definition. CDC is continuing to
consider, with respect to evolution of
scientific and medical understanding,
how best to identify childhood blood
lead levels for which environmental
interventions are recommended.
Through this rule, HUD formally adopts
through regulation the CDC’s approach
to the definition of ‘‘elevated blood lead
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levels’’ in children under the age of 6
and addresses the additional elements
of the CDC guidance pertaining to
assisted housing.
DATES: Comment Due Date: October 31,
2016.
ADDRESSES: Interested persons are
invited to submit comments regarding
this proposed rule to the Regulations
Division, Office of General Counsel,
Department of Housing and Urban
Development, 451 7th Street SW., Room
10276, Washington, DC 20410–0500.
Communications must refer to the above
docket number and title. There are two
methods for submitting public
comments. All submissions must refer
to the above docket number and title.
1. Submission of Comments by Mail.
Comments may be submitted by mail to
the Regulations Division, Office of
General Counsel, Department of
Housing and Urban Development, 451
7th Street SW., Room 10276,
Washington, DC 20410–0500.
2. Electronic Submission of
Comments. Interested persons may
submit comments electronically through
the Federal eRulemaking Portal at
https://www.regulations.gov. HUD
strongly encourages commenters to
submit comments electronically.
Electronic submission of comments
allows the commenter maximum time to
prepare and submit a comment, ensures
timely receipt by HUD, and enables
HUD to make comments immediately
available to the public. Comments
submitted electronically through the
https://www.regulations.gov Web site can
be viewed by other commenters and
interested members of the public.
Commenters should follow the
instructions provided on that site to
submit comments electronically.
Note: To receive consideration as public
comments, comments must be submitted
through one of the two methods specified
above. It is not acceptable to submit
comments by facsimile (fax). Again, all
submissions must refer to the docket number
and title of the rule.
Public Inspection of Public
Comments. All properly submitted
comments and communications
submitted to HUD will be available for
public inspection and downloading at
https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Warren Friedman, Office of Lead Hazard
Control and Healthy Homes,
Department of Housing and Urban
Development, 451 7th Street SW., Room
8236, Washington, DC 20410–3000,
telephone number (202) 402–7698 or
email your inquiry to lead.regulations@
hud.gov. For legal questions, contact
John B. Shumway, Office of General
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Counsel, Department of Housing and
Urban Development, 451 7th Street,
Room 9262, Washington, DC 20410–
0500; telephone number (202) 402–
5190. The above telephone numbers are
not toll-free numbers. Hearing and
speech-impaired persons may access the
above telephone numbers via TTY by
calling the toll-free Federal Relay
Service at 1–800–877–8339.
SUPPLEMENTARY INFORMATION:
I. Background
A. HUD’s Long-Term and Ongoing
Efforts To Reduce Lead Poisoning in
Children
Childhood lead poisoning has long
been recognized as causing reduced
intelligence, low attention span, reading
and learning disabilities, and has been
linked to juvenile delinquency,
behavioral problems, and many other
adverse health effects. Current reviews
by the U.S. Department of Health and
Human Services (HHS), including by its
Agency for Toxic Substances and
Disease Registry (ATSDR) and National
Institute of Environmental Health
Sciences (NIEHS) and by the U.S.
Environmental Protection Agency (EPA)
Office of Research and Development
have described these effects in detail.1
The removal of lead-based gasoline and
paint from commerce has drastically
reduced the number of children exposed
to levels of lead associated with the
most significant among these problems.
Data from CDC’s National Center for
Health Statistics show that mean blood
lead levels among children ages 1 to 5
dropped from 16.0 mg/dL in 1976–1980
to 2.6 mg/dL in 1991–1994, to 0.97 mg/
dL in 2011–2012.2 However, national
statistics mask the fact that blood lead
monitoring continues to find some
children exposed to elevated blood lead
levels due to their specific housing
environment. As sources of lead paint
1 See the following: Agency for Toxic Substances
and Disease Registry. Toxicological profile for lead.
Atlanta: U.S. Department of Health and Human
Services (HHS), August 2007. www.atsdr.cdc.gov/
toxprofiles/tp13.pdf. HHS, National Institute of
Environmental Health Sciences, National
Toxicology Program. NTP Monograph on Health
Effects of Low-Level Lead. NIH Publication No. 12–
5996. June 13, 2012. https://ntp.niehs.nih.gov/
pubhealth/hat/noms/lead/. Office of
Research and Development. Integrated Science
Assessment for Lead. Research Triangle Park, NC.
U.S. Environmental Protection Agency (EPA), June
2013. https://cfpub.epa.gov/ncea/risk/
recordisplay.cfm?deid=255721. (See esp. pp.
lxxxvii–lxxxxviii, and 1–20—1–24. See also Memo
Regarding a Study Assessed in the 2013 ISA for
Lead—Dated May 9, 2014. https://ofmpub.epa.gov/
eims/eimscomm.getfile?p_download_id=518543.)
2 Porter, K. National Health and Nutrition
Examination Survey. 2015 National Conference on
Health Statistics, August 24, 2015, www.cdc.gov/
nchs/ppt/nchs2015/Porter_Monday_SalonE_A6.pdf.
p. 48.
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sources have decreased, focus has
increased on other sources of exposures,
including legacy water pipes in homes
and schools.
In 2014, the CDC noted that, ‘‘Leadbased paint and lead contaminated dust
are the most hazardous sources of lead
for U.S. children,’’ 3 reaffirming their
2005 Statement on preventing lead
poisoning in young children that, ‘‘leadbased paint is the most important source
of lead’’ exposure for young children.4
Continued progress in lead paint
abatement and interim control over the
last decade, such as through HUD’s lead
hazard control grant programs discussed
below, and the lead hazard control work
required of landlords under settlements
HUD has reached in enforcing the Lead
Disclosure Statute and that statute’s
Rule (42 U.S.C. 4852d; 24 CFR 35,
subpart A) has meant further significant
decreases in lead exposure among
children.
Even so, there are a considerable
number of assisted housing units that
have lead-based paint in which children
under age 6 reside. As detailed in the
regulatory impact assessment
accompanying this notice, there are
about 4.3 million housing units in the
assistance programs covered by this
rulemaking (1.1 million public housing,
1.2 million project-based rental
assistance, and 2.0 million tenant-based
rental assistance units), of which about
450,000 are estimated to have been built
before 1978 and have children under
age 6 residing (about 110, 130, and 210
thousand units, respectively). Of those
units, about 57,000 units are estimated
to have lead-based paint hazards (about
14, 16, and 27 thousand, respectively).
Health concerns have also been
documented for adults exposed to high
levels of lead from occupational
exposures and to some extent from
hobbies and other product or
environmental sources, such as what
might be associated with workers
conducting lead hazard control
activities; see, e.g., the Occupational
Safety and Health Administration’s
(OSHA’s) Lead standards, one for
general industry and one for the
construction industry (29 CFR
1910.1025 and 1926.62, respectively);
see OSHA’s Safety and Health Topics
Web page on the health effects of high
3 Centers for Disease Control and Prevention
(CDC). Lead. Prevention Tips. June 19, 2014. Sec.
2, par. 1. www.cdc.gov/nceh/lead/tips.htm.
4 CDC. Preventing Lead Poisoning in Young
Children. A Statement by the Centers for Disease
Control and Prevention. August 2005. p. 4.
www.cdc.gov/nceh/lead/publications/
PrevLeadPoisoning.pdf.
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lead exposure in exposed workers; 5 the
CDC/National Institute for Occupational
Safety and Health (NIOSH) guides on
lead for public health officials and
researchers,6 and for workers; 7 and the
ATSDR Toxicological Profile for lead
and the EPA Integrated Science
Assessment for Lead cited above (fn. 1).8
B. Authority for HUD’s Lead-Based
Paint Regulations
HUD’s Lead-Based Paint regulations
designed to reduce lead exposure in
federally-owned and federally-assisted
housing (sometimes, for brevity, referred
to here as ‘‘assisted housing’’), referred
to as the Lead Safe Housing Rule
(LSHR), are found in title 24 of the Code
of Federal Regulations (CFR) part 35,
subparts B through R. The LSHR
implements the Residential Lead-Based
Paint Hazard Reduction Act of 1992,
which is Title X of the Housing and
Community Development Act of 1992
(Pub. L. 102–550, approved October 28,
1992), specifically, the LSHR
implements sections 1012 and 1013 of
Title X (42 U.S.C. 4822). One of the
purposes of the LSHR is to ensure, as far
as practicable, that federally-owned or
federally–assisted housing that may
have lead-based paint, which is most
housing constructed prior to 1978
(called ‘‘target housing’’) 9 does not have
lead-based paint hazards.
As reflected in the LSHR and
consistent with Title X, HUD’s primary
focus is on minimizing childhood lead
exposures, rather than on waiting until
children have elevated blood lead levels
(see section I.B, below) to undertake
actions to eliminate the lead-based paint
hazards or the lead-based paint. HUD’s
5 OSHA Salt Lake Technical Center. Lead. Health
Effects. https://www.osha.gov/SLTC/lead/
healtheffects.html.
6 NIOSH. LEAD. Information for Public Health
Officials and Researchers. www.cdc.gov/niosh/
topics/lead/publichealth.html.
7 NIOSH. LEAD. Information for Workers.
www.cdc.gov/niosh/topics/lead/health.html.
8 As discussed below, while the focus of HUD’s
existing Rule (Lead Safe Housing Rule) (24 CFR 35,
subparts B–R) proposed to be amended by this
rulemaking is the protection of the health of
children under age 6, the currently codified Rule
also addresses protection of all occupants in
dwelling units covered by the Rule (see, e.g.,
§ 35.1345), and workers conducting lead-related
activities in housing covered by the Rule (see, e.g.,
§ 35.145).
9 HUD’s regulations, at 24 CFR 35.110, based on
the Title X definition at 42 U.S.C. 4851b (27), define
‘‘target housing’’ as ‘‘any housing constructed prior
to 1978, except housing for the elderly or persons
with disabilities (unless a child of less than 6 years
of age resides or is expected to reside in such
housing for the elderly or persons with disabilities)
or any zero- bedroom dwelling. In the case of
jurisdictions which banned the sale or use of leadbased paint prior to 1978, HUD may designate an
earlier date.’’ (Note that HUD has not made any
such designations.)
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Office of Lead Hazard Control and
Healthy Homes’ (OLHCHH’s) ongoing
efforts in lead poisoning prevention—
i.e., acting before children are exposed
to lead such that they develop an
elevated blood lead level—were
recognized in the HUD’s Healthy Homes
Strategic Plan.10 As noted in that
document, HUD’s OLHCHH has
administered a successful Lead Hazard
Control program since 1993. Through
robust grants, enforcement efforts,
research, and outreach, this program has
been instrumental in the reduction of 84
percent in childhood blood lead levels
of 10 mg/dL or more from 1988–1991 to
1999–2004 11 and least an estimated 97
percent through 2014.12 The success of
HUD’s OLHCHH comes from taking all
actions feasible and authorized to
reduce lead exposure in children, and
these actions include providing
conditions of funding through the
office’s notices of funding availability,
updating guidelines and best practices,
and working collaboratively with other
Federal agencies such as the U.S.
Department of Health and Human
Services (HHS), particularly its CDC,
and the U.S. Environmental Protection
Agency (EPA), to name a few.13
CDC has recognized that the ‘‘HUD
Lead Hazard Control Program . . . is the
most easily identifiable and largest
source of federal funding for leadhazard remediation.’’ 14 HUD notes that
that program, which implements section
1011 of Title X (42 U.S.C. 4852) does
not address all types of housing with
which HUD is associated. Specifically,
section 1011 prohibits housing that is
10 HUD. Leading Our Nation to Healthier Homes:
The Healthy Homes Strategic Plan. July 9, 2009.
https://portal.hud.gov/hudportal/documents/
huddoc?id=hhstratplan_7_9_09.pdf.
11 Dropping from 8.6% to 1.4%. Jones, R., et al.
Trends in Blood Lead Levels and Blood Lead
Testing Among U.S. Children Aged 1 to 5 Years,
1988–2004. Pediatrics Vol. 123 No. 3 March 2009,
pp. E376–E385. https://
pediatrics.aappublications.org/content/123/3/e376.
12 Dropping from 1.4% to an estimated 0.28% or
less, based on the 2.5% of children with blood lead
levels at or above 5 mg/dL (see section I.B, below)
and data collected by CDC’s national surveillance
program on blood lead testing data, comparing the
numbers of children with blood lead levels at or
above 5 mg/dL with those at or above 10 mg/dL in
CDC. Number of Children Tested and Confirmed
BLL’s ≥10 mg/dL by State, Year, and BLL Group,
Children < 72 Months Old. www.cdc.gov/nceh/
lead/data/Web site_StateConfirmedByYear_1997_
2014_01112016.xlsx.
13 See Advancing Healthy Housing, a Strategy for
Action at https://portal.hud.gov/hudportal/
documents/huddoc?id=stratplan_final_11_13.pdf.
14 CDC. CDC Response to Advisory Committee on
Childhood Lead Poisoning Prevention
Recommendations in ‘‘Low Level Lead Exposure
Harms Children: A Renewed Call of Primary
Prevention.’’ (CDC Response.) Atlanta, June 7, 2012.
(Corrected from initial release May 13, 2012)
www.cdc.gov/nceh/lead/acclpp/cdc_response_
lead_exposure_recs.pdf.
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‘‘federally assisted housing, federally
owned housing, or public housing’’
from being enrolled under the section’s
grants. Indeed, Congress required lead
hazard evaluation and control in
precisely those three categories of
housing when it enacted sections 1012
and 1013 of Title X, under which the
LSHR was issued, so that the lead
hazard control grants and the LSHR
complement each other in the housing
stock they address.
HUD emphasizes that the scope of its
authority under Title X is limited to
lead-based paint hazard reduction in
housing, and the scope of this rule is
further limited to the reduction of those
hazards in HUD-assisted housing. HUD
is authorized by Title X to control leadbased paint and lead-based paint
hazards in certain HUD-assisted target
housing. Lead-based paint hazards are
lead-based paint and all residential
lead-containing dusts and soils
regardless of the source of the lead,
which, due to their condition and
location, would result in adverse human
health effects. Title X required the EPA
to promulgate standards for lead-based
paint hazards, specifically, paint-lead
hazards, dust-lead hazards, and soillead hazards, which it did through
rulemaking.15 HUD has incorporated the
EPA’s lead-based paint hazard standards
in the LSHR.16 Controlling exposures to
lead from water is outside of HUD’s
authority under Title X. The EPA also
has responsibilities regarding lead-based
paint under Title X, and the EPA
administers other laws regulating lead,
including the Clean Air Act, Clean
Water Act, Safe Drinking Water Act,
Resource Conservation and Recovery
Act, and Comprehensive Environmental
Response, Compensation, and Liability
Act, among others.17
C. CDC’s Revised Guidance on Elevated
Blood Lead Levels
Until 2012, children were identified
by CDC as having a blood lead ‘‘level of
concern’’ if testing found 10 or more
micrograms per deciliter of lead in the
blood (10 mg/dL). In 2012, CDC revised
its guidance on childhood lead
poisoning in response to
recommendations by CDC’s Advisory
Committee on Childhood Lead
Poisoning Prevention (ACCLPP), which
concluded that a growing number of
scientific studies show that even low
blood lead levels can cause lifelong
health effects. CDC accepted the
15 15 U.S.C. 2683, implemented by EPA at 40 CFR
745.65 and 745.227(e)(8)(vii).
16 24 CFR 35.110, 35.1315, 35.1320(b)(2), and
35.1325.
17 See https://www.epa.gov/lead/lead-laws-andregulations for more information.
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recommendation of the ACCLPP to
eliminate its use of the term and
concept of ‘‘blood lead level of
concern.’’ 18 CDC is instead using a
‘‘reference range value’’ to identify
children who have been exposed to lead
and who require case management. CDC
uses the phrase, ‘‘to identify persons
whose exposure to a toxic substance is
higher than that of most persons in the
population and useful in instances
when no clear threshold for effects has
been identified,’’ as is the case for
childhood blood lead levels.19
Consistent with the ACCLPP
recommendation II that CDC link lead
levels in its guidance to results from
CDC’s National Health and Nutritional
Examination Survey (NHANES),20 the
CDC’s ‘‘reference range value’’ method
for defining elevated blood lead levels
(EBLLs) is based on the blood lead level
equaled or exceeded by 2.5 percent of
U.S. children aged 1–5 years as
determined by NHANES. CDC’s current
reference range level is 5 mg/dL (5
micrograms of lead per deciliter). This
level, established in 2012 as part of
CDC’s response to ACCLPP, is lower
than CDC’s former blood lead level of
concern, established in its 1991
Statement,21 which had been 10 mg/dL,
and its level for recommending
environmental intervention for children,
20 mg/dL, or 15 mg/dL if that level
persists, levels that it reaffirmed in its
2005 Statement.22 This new lower value
means that more children will likely be
identified as having lead exposure,
18 See Advisory Committee on Childhood Lead
Poisoning Prevention. Low Level Lead Exposure
Harms Children: A Renewed Call for Primary
Prevention. Atlanta, January 4, 2012. www.cdc.gov/
nceh/lead/acclpp/final_document_030712.pdf. The
ACCLPP’s charter expired in October 2013.
Activities in the Committee’s field of interest are
now conducted by the Childhood Lead Poisoning
Prevention Subcommittee of the CDC’s Board of
Scientific Counselors, National Center for
Environmental Health/Agency for Toxic Substances
and Disease Registry (NCEH/ATSDR). See, e.g.,
www.atsdr.cdc.gov/science/docs/BSC_MINUTES_
MAY_2014.pdf.
19 Raymond J., Wheeler W., Brown, M.J. Lead
Screening and Prevalence of Blood Lead Levels in
Children Aged 1–2 Years—Child Blood Lead
Surveillance System, United States, 2002–2010 and
National Health and Nutrition Examination Survey,
United States, 1999–2010. Morbidity and Mortality
Weekly Report. v. 63, n. 2, p. 36–42. September 12,
2014. www.cdc.gov/mmwr/preview/mmwrhtml/
su6302a6.htm.
20 CDC National Center for Health Statistics,
National Health and Nutrition Examination Survey.
Homepage at www.cdc.gov/nchs/nhanes.htm.
21 CDC. Preventing Lead Poisoning in Young
Children. A Statement by the Centers for Disease
Control, chap. 8. October 1991. www.cdc.gov/nceh/
lead/publications/books/plpyc/contents.htm.
22 CDC. Preventing Lead Poisoning in Young
Children. A Statement by the Centers for Disease
Control and Prevention. August 2005. p. 2.
www.cdc.gov/nceh/lead/publications/
PrevLeadPoisoning.pdf.
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allowing parents, doctors, public health
officials and communities to take action
earlier to reduce the child’s future
exposure. It is important to note that by
CDC’s tying its reference value to the
national distribution of blood lead
levels, the reference level will continue
to decrease whenever progress is made
on reducing childhood lead exposure.
For instance, if the 97.5 percentile drops
to 2 mg/dL due to reductions in exposure
to lead paint exposure, the number of
children who have lead exposures above
the new reference value would change
only slightly, based on the growth of the
national population of children under
age 6, which would be about 2 percent
over CDC’s four-year reference range
value updating period.23 CDC concurred
in principle with the ACCLPP
recommendation to adopt a reference
range that is tied to the national
distribution of blood lead levels (CDC
Response to ACCLPP recommendation
II.)
HUD’s currently codified LSHR, at 24
CFR 35.110 (the definition section), uses
the term ‘‘environmental intervention
blood lead level’’ (EIBLL). EIBLL is the
blood lead level at which an evaluation
for lead-based paint hazards and interim
controls of such hazards identified (i.e.,
a type of environmental intervention)
are to be conducted in certain housing
covered by the LSHR. Specifically, HUD
defined EIBLL as ‘‘a confirmed
concentration of lead in whole blood
equal to or greater than 20 mg/dL for a
single test or 15–19 mg/dL in two tests
taken at least 3 months apart.’’ HUD’s
definition is consistent with the
guidance issued by CDC in November
1997, i.e., shortly before the LSHR was
published on September 15, 1999, at 64
FR 50139–50231. CDC’s 1997 guidance
was that a blood lead level of 10–14 mg/
dL should trigger monitoring, certain
parental actions, and perhaps
community-wide education, but not
lead hazard control in an individual
child’s home.24 At the time that HUD
was developing the LSHR, CDC did not
recommend a full home inspection or
assessment in response to blood lead
levels below 15 mg/dL. CDC’s revised
guidance uses a reference range value to
trigger the identification of conditions
in the environment associated with
23 Calculated based on Table 1, Population by Sex
and Selected Age Groups: 2000 and 2010, in
Howden L.M. and Meyer J.A. U.S. Census Bureau.
Age and Sex Composition 2010. 2010 Census Briefs.
C2010BR–03. May 2011. Page 2. www.census.gov/
prod/cen2010/briefs/c2010br-03.pdf.
24 CDC. Screening Young Children for Lead
Poisoning: Guidance for State and Local Public
Health Officials. Chapter 4. Role of Child HealthCare Providers in Childhood Lead Poisoning
Prevention. Atlanta. November 1997. www.cdc.gov/
nceh/lead/publications/screening.htm.
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lead-exposure hazards. CDC’s revised
guidance recommends that children
under age 6 should not live or spend
significant time in homes with leadexposure hazards (CDC Response to
ACCLPP recommendations II and III).
Although HUD has not yet conformed
the LSHR to reflect the CDC’s 2012
revised approach for establishing the
definition of EBLL, HUD’s Guidelines
for the Evaluation and Control of LeadBased Paint Hazards in Housing (HUD
Guidelines) second edition (2012),
which provide guidance information
regarding evaluation and hazard
reduction activities described in the
LSHR (24 CFR 35.1310(a)), adopted
CDC’s reference range value method for
defining an EBLL.25 In addition, HUD
has implemented use of CDC’s revised
definition in both of its lead hazard
control grant programs—the Lead-Based
Paint Hazard Control grant program and
the Lead Hazard Reduction
Demonstration grant program—in the
annual notices of funding availability
(NOFAs) issued for these programs
commencing in fiscal year 2013,26 the
first NOFAs issued after CDC revised its
guidance, advising the grantees of grants
awarded under those NOFAs to use the
definition to prioritize enrollment of
housing units for lead hazard control
work.
ACCLPP recommendation X was that
CDC adopt prevention strategies to
reduce environmental lead exposures in
soil, dust, paint, and water before
children are exposed. As part of its
response, CDC noted that it would
continue to emphasize the importance
25 See https://portal.hud.gov/hudportal/
HUD?src=/program_offices/healthy_homes/lbp/
hudguidelines, HUD Guidelines, esp. chapter 16,
Investigation and Treatment of Dwellings that
House Children with Elevated Blood Lead Levels.
26 HUD Office of Lead Hazard Control and
Healthy Homes. Notice of Funding Availability for
HUD’s Fiscal Year (FY) 2013 Lead-Based Paint
Hazard Control Grant Program and Lead Hazard
Reduction Demonstration Grant Program. December
3, 2012. https://portal.hud.gov/huddoc/
2013leadcombonofa.pdf. FY 2014 Lead-Based Paint
Hazard Control (LBPHC) Grant Program and Lead
Hazard Reduction Demonstration (LHRD) Grant
Program. May 13, 2014. https://portal.hud.gov/
hudportal/documents/
huddoc?id=2014leadcombonofa.pdf. FY 2015 LeadBased Paint Hazard Control (LBPHC) Grant
Program. May 7, 2015. https://portal.hud.gov/
hudportal/documents/
huddoc?id=2015lbphcnofa.pdf. FY 2015 Lead
Hazard Reduction Demonstration (LHRD) Grant
Program. May 7, 2015. https://portal.hud.gov/
hudportal/documents/
huddoc?id=2015lhrdnofa.pdf. Lead-Based Paint
Hazard Control (LBPHC) Grant Program for FY
2016. https://portal.hud.gov/hudportal/HUD?src=/
program_offices/administration/grants/fundsavail/
nofa16/lbphc. Lead Hazard Reduction
Demonstration (LHRD) Grant Program for FY 2016.
https://portal.hud.gov/hudportal/HUD?src=/
program_offices/administration/grants/fundsavail/
nofa16/lhrd.
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of environmental assessment and
mitigation of lead hazards before
children are exposed (CDC Response to
ACCLPP recommendation X).
ACCLPP recommendation XI was
that, ‘‘If lead hazards trigger a response
in any unit in a multi-family housing
complex, the same response action
should be applied to all similar untested
units in the housing complex, unless a
risk assessment demonstrates that no
lead hazards are present in the other
units.’’ In response, CDC concurred with
the evidence suggesting that a building
that houses one child with lead
poisoning is an indication that other
children in that building are likely at
risk (CDC Response to ACCLPP
recommendation XI).
D. Response to CDC Guidance
HUD has been implementing primary
prevention—the strategy of emphasizing
preventing exposure rather than
responding after the exposure has taken
place 27—since before CDC responded to
the ACCLPP recommendations,
specifically, implementing most of those
recommendations that pertain to HUD.
Regarding the CDC Response to
ACCLPP recommendation II, on using
the reference range value, as noted
above, HUD issued the second edition of
its Guidelines, which included
information on environmental
interventions based on CDC’s revised
approach to EBLL,28 and used the
revised definition in its NOFAs for its
Lead Hazard Control Grant Programs
starting with the first NOFA after the
CDC Response was published.
Regarding the CDC Response to
ACCLPP recommendation III, on
primary prevention, one of the purposes
of the LSHR, as noted above, is to
ensure, as far as practicable, that
federally-owned or federally-assisted
target housing does not have lead-based
paint hazards. Assisted target housing
covered by the rule is assessed for
hazards before the assisted occupants
move in; controls before occupancy are
required when hazards are identified;
when the assistance is ongoing, ongoing
lead-based paint maintenance is
required, periodic re-evaluations for the
presence of lead hazards are conducted,
and hazards are controlled, and
occupants are notified of the results—all
of these actions are independent of, and
precede, children’s blood lead levels
increasing as a result of lead-based paint
hazards in their housing.
Regarding the CDC Response to
ACCLPP recommendation VI, that
clinicians report EBLL cases to local and
state health and/or housing
27 CDC
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departments, the LSHR includes, in the
subparts pertaining to ongoing
assistance for target housing, the
requirement that the owner (or other
‘‘designated party’’ responsible for the
assistance under the rule) promptly
report the name and address of a child
identified as having an EIBLL to the
public health department within 5
business days of being so notified by
any other medical health care
professional.29
Regarding the CDC Response to
ACCLPP recommendation VII, HUD has
long been engaged in educating families,
service providers, advocates, and public
officials on primary prevention of lead
exposure in homes, through outreach
campaigns, development, publication
and distribution of brochures, flyers,
manuals, and guidance documents,
training of housing sector stakeholders,
and supporting the EPA’s National Lead
Information Center, which provides the
general public and professionals with
information about lead, lead hazards,
and their prevention.30
Regarding the CDC Response to
ACCLPP recommendation VIII, HUD has
long facilitated data-sharing between
health and housing agencies, promoted
preventive lead-safe housing standards
for target housing, identifying financing
for lead hazard remediation, and
provided families with the information
needed to protect their children from
hazards in the home. For example, as far
back as 1990, in its Interim Guidelines
on addressing lead hazards in public
and Indian housing, HUD encouraged
public housing agencies to collaborate
with health departments on, e.g.,
encouraging blood lead screening and
development of outreach materials,
sharing data about cases of high blood
lead levels in children, then called
‘‘lead poisoning’’ or elevated blood lead
level (albeit with the different
quantitative meaning at that time),
referring children to a lead hazard
control program,31 and the Department
has continued these efforts since then.
Regarding the CDC Response to
ACCLPP recommendation X, which
emphasizes the importance of
environmental assessments to identify
and mitigate lead hazards as a primary
prevention technique, as noted above,
the LSHR requires this of all of the
assisted housing covered by the rule.
29 24
CFR 35.730(e), 830(d), 1130(e), 1225(e).
e.g., EPA. Lead Hotline—The National
Lead Information Center. https://www.epa.gov/lead/
forms/lead-hotline-national-lead-informationcenter.
31 HUD Office of Public and Indian Housing.
Lead-Based Paint: lnterim Guidelines for Hazard
ldentification and Abatement in Public and Indian
Housing. September 1990.
30 See,
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Similarly, on the item that CDC adopt
prevention strategies to reduce
environmental lead exposures in soil,
dust, paint, and water before children
are exposed, under the LSHR, as noted
above, HUD has been implementing the
prevention strategy to reduce
environmental lead exposures in soil,
dust, and paint, the media for which it
has authority to do so under Title X.
Regarding lead exposures from water,
see the EPA Integrated Science
Assessment for Lead.32
Regarding several additional ACCLPP
recommendations, HUD has been
implementing the CDC response since
the issuance of the CDC Response.
Regarding the recommendation XIII,
specifically, the element of the
recommendation that has a housing
connection, on CDC improving the use
of data from screening programs, HUD
and CDC collaborated on matching
addresses of HUD-assisted residents
with national health survey data to
develop a method for improving the
targeting of lead hazard control efforts
and resources.33 HUD will continue
seeking ways it can contribute to CDC’s
efforts in this regard.
II. Regulatory Approach
Although HUD is already applying the
CDC’s 2012 revised definition of EBLL
in its lead hazard control NOFAs and in
its Guidelines, the LSHR has not yet
been updated to reflect the CDC’s
revised definition of EBL. During this
time, federal agencies involved with
reducing childhood lead exposures,
including HUD, CDC, EPA and NIEHS,
have continued to explore how best to
use scientific and medical information
to approach the problem of childhood
lead exposures and develop approaches
for prioritizing action within the limits
of available resources. To keep HUD’s
criterion for requiring environmental
intervention in response to a child
having a sufficiently high blood lead
level to warrant such action in
synchrony with CDC’s approach for
determining when environmental
intervention is recommended, this rule
therefore proposes to revise the LSHR to
adopt the CDC’s approach to
establishing a blood lead level for which
CDC recommends environmental
intervention, i.e., a trigger level for
environmental intervention as the
32 EPA. Integrated Science Assessment for Lead.
See fn. 1.
33 The abstract from this research will be
published in the conference program for the
Epidemiology Congress of the Americas’
conference, June 21–24, 2016 (https://
epiresearch.org/2016-meeting/). The full abstract
citation will be inserted here at that time, and when
the article is published, that article’s citation will
be inserted here.
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definition of EBLL in the LSHR, and
apply it to determining when
environmental interventions in
federally-assisted and federally-owned
target housing covered by the rule are to
be conducted. In addition, this rule
proposes to change the LSHR to reflect
other CDC guidance responding to the
ACCLPP recommendations, and to make
additional improvements based on
HUD’s experience with implementing
the LSHR in order to further strengthen
prevention strategies in federallyassisted and federally-owned target
housing.
Specifically, HUD is proposing to
revise the LSHR regarding target
housing covered by the five subparts of
the LSHR that are related to children
under age 6 exposed to lead in housing
where the Federal Government
maintains a continuing financial or
ownership relationship. HUD proposes
to implement the recommendations of
the CDC, within the scope of HUD’s
authority, and in consideration of
available federal resources. The five
subparts currently use the EIBLL
threshold for undertaking an
environmental response.
HUD is proposing to revise these
subparts to use the CDC’s approach for
determining when a child’s blood lead
level triggers the environmental
response. The following types of federal
housing assistance are covered in 24
CFR part 35 subparts for which an
environmental intervention may be
required:
D—Project-Based Assistance Provided
by a Federal Agency other than HUD
H—Project-Based Assistance
I—HUD-Owned and Mortgagee-inPossession Multifamily Property
L—Public Housing Programs
M—Tenant-Based Rental Assistance
Provisions proposed to be revised
within the individual subparts are
described below.
In regard to housing for which the
current rule requires response to EIBLL
cases and this proposed rule would
require response to EBL cases, the
following types of hazard evaluation
and reduction activities are required,
whether or not a child with an EIBLL
resides or is expected to reside in a unit
covered by the LSHR:
Lead-based paint inspection: Subparts
I and L. This is a surface-by-surface
investigation to determine the presence
(including the location) of lead-based
paint and providing a report explaining
the results of the investigation.
Hazard Evaluation:
• Risk Assessment: Subparts D, H
(assistance over $5,000 per unit per
year), and I. Lead risk assessments
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involve visual assessment for
deteriorated paint, testing of
deteriorated paint to determine if it is
lead-based paint (and thus, a lead-based
paint hazard because of the
deterioration), dust wipe sampling of
window sills and floors, and sampling
of bare soil.
• Visual assessment for deteriorated
paint: Subparts H (assistance up to
$5,000 per unit per year), M
• Reevaluation: Subparts D, H
(assistance over $5,000 per unit per
year), I and L. Reevaluations involve a
visual assessment of painted surfaces
and limited dust and soil sampling
conducted periodically following leadbased paint hazard reduction where
lead-based paint is still present.
• Periodic inspection for deteriorated
paint: Subpart M: These periodic
inspections are conducted as part of the
inspection of the assisted housing.
Hazard Reduction:
• Abatement of LBP hazards: L
(during comprehensive modernization).
Abatement is set of measures designed
to permanently (for an expected design
life of at least 20 years) eliminate leadbased paint or lead-based paint hazards
Abatement includes: Removing leadbased paint and dust-lead hazards,
permanently enclosing or encapsulating
lead-based paint, replacing components
or fixtures painted with lead-based
paint, and removing permanently
covering soil-lead hazards; along with
all the preparation, cleanup, disposal,
and post-abatement reoccupancy
clearance testing activities associated
with those measures.
Interim controls of LBP hazards:
Subparts D, I, and L (pending abatement
during comprehensive modernization).
Interim controls are measures designed
to reduce temporarily human exposure
or likely exposure to lead-based paint
hazards. They include, but are not
limited to, repairs, painting, temporary
containment, specialized cleaning,
clearance for tenant reoccupancy after
projects that involve paint disturbance
larger than the de minimis amounts
specified in the rule,34 ongoing leadbased paint maintenance activities, and
the establishment and operation of
management and resident education
programs.
Paint stabilization: Subparts H
(assistance up to $5,000 per unit per
year), M. Paint stabilization involves
repairing any physical defect in the
substrate of a painted surface that is
34 24 CFR 35.1350(d): 20 square feet on exterior
surfaces, 2 square feet in any one interior room or
space, or 10 percent of the total surface area on an
interior or exterior type of component with a small
surface area (e.g., window sills, baseboards, and
trim).
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causing paint deterioration, removing
loose paint and other material from the
surface to be treated, and applying a
new protective coating or paint.
Lead hazard evaluation and control
activities in HUD-assisted and HUDowned housing are subject to the
requirements of the applicable civil
rights laws, including the Fair Housing
Act as amended (for example, by the
Fair Housing Amendments Act), and its
prohibition of discrimination on the
basis of disability or familial status
(including the presence of a child under
age of 18, or of a pregnant woman), Title
VI of the Civil Rights Act of 1964
(prohibiting discrimination on the basis
of race, color, and national origin), Title
IX of the Education Amendments of
1972 (prohibiting discrimination on the
basis of sex), and section 504 of the
Rehabilitation Act of 1973 (prohibiting
discrimination on the basis of
disability). These laws, and their
associated HUD regulations 35 and
guidance 36 are incorporated into the
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35 See 24 CFR parts 100–180, especially parts 135
and 146.
36 See the Office of Fair Housing and Equal
Opportunity’s FHEO Library at https://
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LSHR through its § 35.145, Compliance
with Federal laws and authorities. The
applicability of the fair housing laws,
regulations, and guidance to these
activities would continue without
change by this proposed rule.
A. Response to Young Children With
Elevated Blood Lead Levels
In updating the LSHR to reflect the
CDC’s approach to defining EBL, within
the scope of HUD’s authority, HUD is
proposing to shift its threshold for
environmental intervention from the
environmental intervention blood lead
level (EIBLL), as described above, to the
elevated blood lead level (EBLL) that is
identified in CDC’s guidance for
recommending a childhood blood lead
level such that an environmental
portal.hud.gov/hudportal/HUD?src=/program_
offices/fair_housing_equal_opp/library#Guidance
for links to a set of Policy and Guidance documents.
The FHEO Library also contains links to sets of
documents on Decrees and Conciliation
Agreements, Marketing Materials, Memorandums of
Understanding (MOU), Publications, Studies,
Voluntary Compliance Agreements, and Annual
Reports. The Office’s homepage is at https://
portal.hud.gov/hudportal/HUD?src=/program_
offices/fair_housing_equal_opp.
PO 00000
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60309
intervention should be conducted, at
any given point in time. In 2012, CDC’s
guidance used the reference range value,
which had the numerical value of 5 mg/
dL; HUD would continue to rely on
CDC’s guidance, whether CDC’s
approach continued to use the reference
range value or used another criterion. In
addition, this rule proposes to revise the
type of hazard control undertaken when
lead-based paint or other hazards are
identified and, in the case of housing
projects with more than one unit,
address lead-based paint hazards in
those other units in which children
under age 6 reside.
The approach to implementing the
regulatory protocol under this proposed
rulemaking is founded on the currently
codified LSHR, the CDC guidance on
blood lead reference levels, the HUD
Guidelines, and HUD’s experience
implementing the LSHR since its 1999
promulgation. Figure 1 provides an
overview of the proposed protocol for
addressing elevated blood lead level
cases in assisted housing covered by the
LSHR; its details are discussed below.
BILLING CODE 4210–67–P
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Fig. 1. Flowchatt overview of the elevated blood lead level protocol.
Documented current evoiuation, 1 notifications,
disc/owre, current implementation of ongoing
LBP maintenance and ma.~agemetlt 2 ?
L LBP inspection, RA, VA, reevaluation, as applicable,
2, Used certified firms/workers in maint!rehab/modlabatement, successful clearances in past year,
E,g,, through educational efforts in collaboration with the public health department and other
resources, See the HUD Guidelines, Chapter 16, section IV C, Elimination or Control of Other Lead
Hazards, for guidance and links to materials
4, For VA, assess all units with children under age 6, For RA, select units with children under age 6 to
assess randomly based on HUD Guidelines, Chapter 7, Section V, B, Selection of Housing Units,
Common Areas, and Exterior Site Areas,
Ab =Abatement, BLL =blood lead leveL CA =common area, EBLL = elevated blood lead leveL
HU =housing unit, IC =interim controls, LBP =lead-based paint, Pb =lead, PS =paint stabilization,
R..o\ =risk assessment, VA= visual assessment
BILLING CODE 4210–67–C
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In broad terms, HUD’s proposed
protocol for responding to a case of a
child under age 6 with an EBLL would
include the ‘‘designated party’’
undertaking certain actions. The
designated party is the owner or other
entity (e.g., federal agency, public
housing agency, tribally designated
housing entity, sponsor, etc.) designated
under the LSHR as responsible for
complying with applicable requirements
of the LSHR for the residential property
or dwelling unit, as applicable (see
§ 35.110). As described below, the
protocol is the same for each of the four
applicable HUD subparts (H, I, L, M),
and slightly narrower for the other
agencies’ subpart (D), for which the
agencies would decide how to deal with
other housing units in multi-unit
properties than the unit in which the
child with an EBLL resides.
The protocol would include the
designated party:
• Conducting an environmental
investigation 37 of the dwelling unit in
which the child lived at the time the
blood was last sampled (the ‘‘index’’
unit 38) and of common areas servicing
the index unit.39 (The procedure for
conducting the environmental
investigation is described below.)
• Conducting interim control 40 of
lead-based paint hazards identified in
the index unit and, in the unlikely case
that the work duration exceeds
thresholds in the LSHR 41 (the most
applicable threshold, of 5 calendar days,
with the worksite contained and it and
the area within 10 feet cleaned so that
the family can return each day, is not
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37 This
rule proposes to defined this term as the
process of determining the source of lead exposure
for a child under age 6 with an elevated blood lead
level, consisting of administration of a
questionnaire, comprehensive environmental
sampling, case management, and other measures.,
in accordance with chapter 16 of the HUD
Guidelines for the Evaluation and Control of LeadBased Paint Hazards in Housing (‘‘Guidelines’’).
38 Terminology adapted from the traditional
epidemiology term ‘‘index case, the case that is first
reported to public health authorities.’’ CDC.
Guidelines for the Control of Pertussis Outbreaks.
Centers for Disease Control and Prevention: Atlanta,
GA, 2000. Chapter 11, Definitions. www.cdc.gov/
pertussis/outbreaks/guide/downloads/chapter11.pdf.
39 However, if the designated party conducted a
risk assessment of the unit and common areas
servicing the unit between the time the child’s
blood was last sampled and when the designated
party received notification of the EBLL, the
designated party need only conduct the elements of
an environmental investigation not already
conducted during the risk assessment. See below
for the discussion of environmental investigations
vs. risk assessments.
40 Interim control refers to actions that reduce
temporarily human exposure or likely exposure to
lead-based paint hazards including specialized
cleaning, repairs, maintenance, painting, temporary
containment.
41 24 CFR 35.1345(a)(2).
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expected to be exceeded), temporarily
relocating the family to a suitable,
decent, safe, and similarly accessible
dwelling unit that does not have leadbased paint hazards.
• Controlling other housing-related
sources of lead exposure in the building,
such as lead-contaminated debris.
• Being encouraged to gain the
collaboration of the occupants in
addressing the presence and use of
sources of lead exposure that are not
housing-related. Non-housing items
(such as lead-containing cosmetics,
pottery, folk remedies,42 take-home
exposures from the workplace, etc.)
owned or used by the occupants are
outside of the scope of Title X and, as
a result, the LSHR.
The proposed procedure for
conducting an environmental
investigation, including procedures for
investigating sources of lead exposure
other than lead-based paint hazards, as
presently found is found in Chapter 16
of the HUD Guidelines.43 The protocol
includes:
• Reviewing the findings of any
previous lead-based paint inspection,
risk assessment, environmental
investigation, or reevaluation for the
property.
• Conducting a comprehensive
interview of the family of the child,
based on the CDC EBLL environmental
investigation checklist or HUD EBLL
questionnaire (both are in the chapter),
or a comparable questionnaire (such as
one from the public health department).
• Conducting a risk assessment.44
42 Lead has been found in some traditional (folk)
medicines used by, for example, East Indian,
Indian, Middle Eastern, West Asian, and Hispanic
cultures. Folk medicines can contain herbs,
minerals, metals, or animal products. Lead and
other heavy metals are put into certain folk
medicines because these metals are thought to be
useful in treating some ailments. Sometimes lead
accidentally gets into the folk medicine during
grinding, during coloring, or from the package. See
www.cdc.gov/nceh/lead/tips/folkmedicine.htm.
43 Chapter 16 of the HUD Guidelines for the
Evaluation and Control of Lead-Based Paint
Hazards in Housing notes that, ‘‘The purpose of the
[environmental] investigation is to identify lead
hazards in the environment of a child. An ordinary
risk assessment attempts to uncover lead-based
paint hazards in a dwelling, regardless of whether
a child has an EBLL. The investigator is obligated
to conduct a comprehensive investigation of all
sources of lead in the child’s environment, not just
those lead exposures directly related to the child’s
residence. This investigation includes studying
less-common sources of lead, such as glazed pottery
and folk medicines or remedies, etc., and other
dwellings or areas frequented by the child. Some of
these sources may be discovered by the results of
the questionnaire. The investigator tests
deteriorated paint on furniture identified as a
potential hazard to the environmental intervention
blood lead (EIBLL) child, regardless of who owns
the furniture.’’ (Paragraphs merged.)
44 A risk assessment is (per § 35.110), an on-site
investigation to determine the existence, nature,
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• Augmenting the risk assessment, in
consultation with the public health
department managing the child’s EBLL
case, if that public health department
chooses to cooperate with the
designated party, to determine what, if
any, other possible sources of exposure
should be investigated, including, but
not limited to:
Æ Drinking water.
Æ Glazed pottery or tableware that
may contain lead glazes.
Æ Work clothes or vehicle that may
have been contaminated from a parent’s
or guardian’s work place.
Æ Imported cosmetics, hobbies, folk
remedies, and candies. (Hobby
contamination involving lead (e.g.,
hunting, fishing, furniture refinishing,
stained glass making, etc.) has been
recognized as a lead exposure source in,
e.g., CDC guidance and EPA guidance).
• Providing to the HUD field office
documentation that the designated party
has conducted the activities above,
within 10 business days of the deadline
for each activity. In accordance with the
Government Paperwork Elimination
Act, which encourages electronic
submission of information as a
substitute for paper,45 the designated
party may submit the documentation of
compliance with the LSHR regarding
the affected units electronically.
The designated party or public health
department may have conducted an
environmental investigation of the
index unit and common areas servicing
it between the dates the child’s blood
was last sampled and the designated
party received the EBLL notification. If
so, the designated party would not need
to conduct another environmental
investigation. Similarly, if the
designated party had conducted a risk
assessment of the index unit and
common areas servicing the unit during
that period, it would not need to
conduct another risk assessment, it
would need to conduct only the
additional elements of an environmental
investigation.
A key part of the response to the case
of a child with an elevated blood lead
level is the environmental investigation
of the unit in which the child resided,
i.e., the index unit. The index unit may
be in a building or project with other
assisted dwelling units covered by the
LSHR in which children under age 6
reside or are expected to reside (see the
severity, and location of lead-based paint hazards;
and the provision of a report by the individual or
firm conducting the risk assessment explaining the
results of the investigation and options for reducing
lead-based paint hazards. As such, it is narrower in
scope than an environmental investigation, as
described here.
45 44 U.S.C. 3504(a)(1)(B)(vi).
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discussion of ‘‘expected to reside’’ in
section II.A.2). If so, the protocol would
include the designated party either:
• Providing to the HUD field office 46
documentation that the designated party
has complied with required evaluation
(with the type of evaluation, i.e., leadbased paint inspection, risk assessment,
or visual assessment for deteriorated
paint, in accordance with the Rule’s
subpart regarding the type of
assistance), notification, lead disclosure,
ongoing lead-based paint maintenance,
and lead-based paint management in
those units; or,
• If the designated party does not
provide such documentation of
compliance to date, conducting a risk
assessment of the non-compliant other
units within the building or project
covered by the LSHR and the common
areas that service them, and conducting
interim controls of lead-based paint
hazards identified, or in the case of
tenant-based rental assisted units and
project-based rental assisted units
receiving under $5,000 per unit per year
or being single family housing,
conducting visual assessment and
stabilization of deteriorated paint,47 and
providing to the HUD field office
documentation that the designated party
has conducted the evaluation (i.e., risk
assessment or visual assessment, as
applicable) and hazard control (i.e.,
interim controls or paint stabilization,
as applicable) within 10 business days
of the deadline for the respective
activities.48
As noted above in regard to the
Government Paperwork Elimination
Act, the designated party may submit
the documentation of compliance with
the LSHR regarding the affected units
electronically.
Consistent with CDC’s response to the
ACCLPP recommendations, chapter 16
of the HUD Guidelines for the
Evaluation and Control of Lead-Based
Paint Hazards in Housing (HUD
46 See the HUD Field Office listing Web page at
https://portal.hud.gov/hudportal/HUD?src=/
program_offices/field_policy_mgt/localoffices. For
Multifamily Housing assistance, designated parties
may also contact the respective Regional Center,
Regional Satellite Office, Hub or Program Center
directly; see the Multifamily Regional Centers and
Satellite Offices Web page at https://portal.hud.gov/
hudportal/HUD?src=/program_offices/housing/
mfh/hsgmfbus/abouthubspcs.
47 Paint stabilization is ‘‘repairing any physical
defect in the substrate of a painted surface that is
causing paint deterioration, removing loose paint
and other material from the surface to be treated,
and applying a new protective coating or paint.’’
(§ 35.110)
48 Paint stabilization is ‘‘repairing any physical
defect in the substrate of a painted surface that is
causing paint deterioration, removing loose paint
and other material from the surface to be treated,
and applying a new protective coating or paint.’’
(§ 35.110)
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Guidelines) 49 recommends control of
sources of lead exposure identified
during an environmental investigation
or risk assessment. These sources of
lead exposure include:
• Lead-based paint hazards (i.e.,
paint-lead hazards, dust-lead hazards, or
soil-lead hazards, as defined and given
quantitative measure by EPA at 40 CFR
745.63 and 745.65, respectively), which
are identified by a lead risk assessment.
A risk assessment is defined in the
LSHR at § 35.110 (see footnote 45,
above), and given operational meaning
for the LSHR incorporation of EPA’s
Lead-Based Paint Hazards, Lead-Based
Paint Activities, and State and Indian
Tribal Programs rules (40 CFR part 745,
parts D, E, and Q, respectively, by the
LSHR at 24 CFR 35.1320, Lead-based
paint inspections and risk assessments),
and
• Other housing-related sources of
lead exposure that are outside of the
scope of lead risk assessments. The
procedure for environmental
investigations, as provided in chapter 16
of the Guidelines, is summarized above.
HUD notes that reevaluation is not
part of the response to an EBLL.
Reevaluations (or, for tenant-based
rental assistance, periodic housing
quality standard inspections) are
already part of the regular ongoing leadbased paint management required in the
subparts this proposed rule would
amend, so they are not part of this
amendment.
HUD’s statutory authority to require
controls of lead exposure sources, in
contrast to recommending control of
them, is limited to housing hazards
under the United States Housing Act of
1937 (1937 Act) 42 U.S.C. 1437 et seq.,
as amended 50 (e.g., on public housing
meeting housing quality standards 51
through lease contracts obligating public
housing agencies to maintain housing
projects in safe condition,52 and on
safety requirements for housing
assistance programs for lower-income
families 53). In this context, the controls
are limited to lead-based paint hazards,
rather than lead exposures from the
49 HUD. Guidelines for the Evaluation and
Control of Lead-Based Paint Hazards in Housing.
Washington, 2014. https://portal.hud.gov/hudportal/
HUD?src=/program_offices/healthy_homes/lbp/
hudguidelines.
50 Public Law 93–383, 88 Stat. 633, approved
August 22, 1974. (The codified version can be
searched on www.fdsys.gov; the text of the United
States Code’s subchapter, General Program of
Assisted Housing (42 U.S.C. 1437–1437z–8) can be
downloaded from www.gpo.gov/fdsys/pkg/
USCODE-2012-title42/html/USCODE-2012-title42chap8-subchapI.htm.).
51 Section 6(f)(2); 42 U.S.C. 1437d(f)(2).
52 Section 6(l)(3); 42 U.S.C. 1437d(l)(3).
53 Section 8(c)(4); 42 U.S.C. 1437f(c)(4).
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personal contents of the housing
residents and visitors, the public water
supply, ambient air levels or industrial
emissions.
As seen in numerous HUD regulations
from its various program offices,54 HUD
can encourage activities even if it does
not require them. Accordingly, through
this rulemaking, HUD encourages (in
§§ 35.730(f)(3)(iv), 35.1130(f)(4), and
35.1225(f)(3)) designated parties to
identify and control lead-based paint
hazards in locations not covered by the
LSHR (i.e., unassisted housing units),
and lead exposure sources other than
lead-based paint hazards, even if doing
so is not required by the LSHR.
As described below, across the
different subparts of the LSHR, there are
some differences in terminology,
scoping, and exceptions, based on the
specifics of the housing assistance.
1. Dwelling Unit in Which the Child
Resided
HUD is proposing that, when a child
under age 6 residing in target housing
where the Federal government
maintains a continuing financial or
ownership relationship is reported to
have an EBLL, the designated party
must complete an environmental
investigation of the index unit, and of
common areas servicing the index unit,
within 15 calendar days of the
designated party being notified.
As noted above, several types of
federal housing assistance, covered by
24 CFR part 35 subparts D, H, I, L, and
M, identified above, have provisions
that address lead safety in regard to
children under age 6. The subparts
apply when the Federal government
maintains a continuing financial or
ownership relationship to the target
housing (vs. the short-term relationship
in most rehabilitation projects, which
ends when the construction work is
completed, if there is no other long-term
assistance relationship).
Similarly to the process under the
currently codified rule, if the
notification of an EBLL case is received
from a person who is not a medical
health care provider, the requirement to
conduct an environmental investigation
would be conditioned on verification of
the case information, including the
child’s blood lead level information
with the public health department or
other medical health care provider.
However, the threshold for such
verification would be changed from
EIBLL to EBLL as defined under this
proposal.
54 E.g., 24 CFR 8.28(a)(2), 50.3(a), 51.101(a)(5),
51.106(a)(4), 91.105(a)(2)(i)(ii)(iii), 200.857(g)(4),
570.466, 902.75(f), 964.15, and 984.201(d)(5), etc.
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Under the currently codified rule, the
blood lead threshold for conducting the
environmental investigation is fixed.
Under this proposed rule, the threshold
for the EBLL would change when CDC
updates its guidance for a childhood
blood lead level such that an
environmental intervention should be
conducted. As of 2012, this was the
reference range level for children under
age 6 (i.e., the blood lead level at or
above which the top 2.5th percentile of
U.S. children’s blood lead levels are to
be found, per CDC’s NHANES). CDC
announced that it plans to update the
reference range value every 4 years
(CDC response to ACCLPP
Recommendation II).55 Thus, CDC’s
recommendation on a childhood blood
lead level for recommending an
environmental intervention would be
updated at least that often.
If the proposed rule is adopted, after
CDC publishes an update to the EBL
guidance, HUD would issue a notice on
the applicability of that updated
threshold to the LSHR going forward
after a preparatory transition period.
HUD’s notice would, in order to provide
regulatory and programmatic clarity,
and to avoid unnecessary retroactive
program changes, specify that the
change would be prospective, not
retroactive. Thus, the status of housing
of children with blood lead levels based
on measurements taken before the
transition period ends that are in the
range between the earlier and newer
reference range values would not be
affected by the change. (For example, if
the earlier reference range value was 5.0
mg/dL, and a 4-year old child’s blood
lead level measured before the end of
the transition period were 3.7 mg/dL, the
child’s dwelling unit would not need to
be subject to an environmental
investigation, even if the updated EBL
value published after the child’s blood
were tested is 3.7 mg/dL or less. If the
child continues to reside in federallyowned or -assisted housing covered by
the environmental intervention
requirement, and the child’s blood, as
retested after the transition period has
ended is at or above the updated EBL
55 HUD recognizes that, if the EBLL threshold
continues to decrease over time, the measurement
variability (sampling and analytical variability) will
represent a larger fraction of the threshold value. It
would therefore, be likely that, at some point, the
percentile approach of the reference range value
might not be correlated as tightly with determinable
lead exposure sources, i.e., a smaller fraction of
cases may be attributable to lead-based paint
hazards. The environmental investigation will make
that determination in individual cases. Should a
statistically significant substantial trend toward low
fractions of EBLL cases being attributable to leadbased paint hazards be identified, HUD would
consider further LSHR rulemaking based on the
evidence available at that future point.
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value (in this example, at or above 3.7
mg/dL), the environmental intervention
would then be required.)
Similarly, the blood lead level that
would prompt notification to the public
health department would be an EBLL
rather than an EIBLL.
In order that HUD be able to promptly
monitor implementation of the
evaluation and hazard control
procedures when an EBLL case has
occurred in HUD-assisted or HUDowned target housing, HUD is proposing
that the designated party notify within
5 business days of being notified of the
EBLL case by a public health
department or any other medical health
care professional both the HUD field
office (as the currently codified rule
requires for public housing, under
§ 35.1130(e)) and HUD’s OLHCHH,
which has been delegated authority for
oversight of the Lead Safe Housing
Rule.56 The OLHCHH, which is
functioning as a public health authority
as defined by the Privacy Rule (45 CFR
parts 160 and 164) promulgated under
the federal Health Insurance Portability
and Accountability Act of 1996 (HIPAA)
(Pub. L. 104–191, 110 Stat. 1936,
approved August 21, 1996, as
amended),57 is developing an electronic
portal for submitting the case
information, in order to minimize the
reporting burden on designated parties,
and will announce the availability of the
portal and instructions for its use in a
Federal Register notice. If, and so long
as there is sufficient demand for
notifications to be sent by mail or fax,
the OLHCHH will make those submittal
pathways available. Should it determine
that there is insufficient demand; the
OLHCHH will post a Federal Register
notice to that effect.
The 15-day period for conducting
environmental investigation would be
the same period as the current LSHR
requires in EIBLL cases.
If the investigation identified leadbased paint hazards in these areas, the
designated party (or the owner, as
applicable) would be required to
conduct interim controls of the hazards
within 30 calendar days of receiving the
report of the investigation, as in the
current rule.
Similarly, as part of this rulemaking,
HUD encourages the designated party to
address sources of lead exposure other
than lead-based paint hazards. If those
sources are housing-related, e.g.,
airborne emissions from housing
56 HUD. Delegation of Authority for the Office of
Healthy Homes and Lead Hazard Control. 76 FR
45592. July 29, 2011. https://federalregister.gov/a/
2011-19279.
57 HUD–CDC memorandum, March 9, 2004.
www.hud.gov/offices/lead.
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activities conducted by the designated
party (or the owner, as applicable), such
as uncontrolled emissions from welding
or soldering operations in the property’s
machine shop, the designated party (or
the owner, as applicable) is encouraged
by HUD to address the hazards. The
public health department may issue an
abatement order in regard to those
sources; compliance with such an order
is a requirement of state, tribal or local
law, as applicable. Some or all of the
sources of lead exposure may be outside
of the scope of Title X and the LSHR
because they are not housing-related
sources. For example, the sources may
be non-housing items, such as leadcontaining cosmetics, pottery, folk
remedies, etc. owned or used by the
occupants that produce exposures, lead
contamination on clothing or skin and
in vehicles from the workplace, out-ofhome hobbies, or in-home hobbies.
Chapter 16 of the HUD Guidelines
includes a set of links to the CDC lead
Web page on such sources.58 That
chapter also refers to the CDC lead Web
page on at-risk populations (including
children who are poor, are members of
racial-ethnic minority groups, are recent
immigrants, live in older, poorly
maintained rental properties, or have
parents who are exposed to lead at
work; pregnant women; refugee
children; and internationally adopted
children),59 which is of particular
interest when no probable source of lead
may be identified. Both of those Web
pages have further links to Web pages
on specific topics.
Regarding these sources, HUD
encourages the designated party to gain
the cooperation of the occupants in
addressing the presence and use of nonhousing-related sources of lead
exposures. Similarly, some of these
sources may be ambient, such as
hazardous waste facility siting, or
industrial emissions, regarding which,
by this rulemaking, HUD is indicating
that it is important that the designated
party inform or even engage with local,
state, and/or federal public health and/
or environmental officials in addressing
the problem.
Hazard reduction would be
considered complete when either:
• Clearance of the unit and common
areas servicing the unit is achieved and
the clearance report from the risk
assessor states that the control measures
have been completed; or
• The public health department
certifies that the lead-based paint hazard
reduction and the control of other
58 www.cdc.gov/nceh/lead/tips/sources.htm.
59 www.cdc.gov/nceh/lead/tips/populations.htm.
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housing-related lead hazards are
complete.
The designated party may have,
between the date the child’s blood was
last sampled and when the designated
party received the notification,
conducted hazard reduction of the unit
and common areas servicing the unit as
described above, including passing
clearance. If so, it need not redo the
hazard reduction.
2. Other Assisted Dwelling Units in the
Building or Project
ACCLPP’s recommendation XI was
that, ‘‘If lead hazards trigger a response
in any unit in a multi-family housing
project, the same response action should
be applied to all similar untested units
in the housing project, unless a risk
assessment demonstrates that no lead
hazards are present in the other units.’’
HUD is proposing that if, (a) the
dwelling unit in which the child under
age 6 resided when she or he was
reported as having an EBLL, i.e., the
index unit, is part of a residential
property or project that has other units
of housing covered by the LSHR, and (b)
the index unit has been confirmed to
have lead-based paint hazards, then the
occupancy and lead management of
other units covered by the LSHR with a
child under age 6 residing or expected
to reside would be examined to
determine whether the designated party
must conduct a risk assessment or
visual assessment (as described in the
bulleted paragraphs above). If so, and if
lead-based paint hazards (or
deteriorated paint) are found in those
other units, then interim controls or
paint stabilization,60 as applicable must
be conducted, and clearance passed. On
the other hand, if the index unit has
been found not to have lead-based paint
hazards, HUD is proposing that no risk
assessment or visual assessment, as
applicable, be required in other assisted
units in the building or project. This
approach is based on the predicate in
the CDC response to ACCLPP
recommendation XI, namely, that a
response in other units is based on
having ‘‘lead hazards trigger a response
in any unit in a multi-family housing
complex.’’ If the index unit does not
have lead-based paint hazards, the CDC
guidance does not recommend actions
in other units.
If index unit has any lead-based paint
hazards, HUD is proposing that the
types of action required depend on
whether a child under age 6 resides or
60 Paint stabilization refers to repairing any
physical defect in a painted surface that is causing
paint deterioration, removing loose paint and other
material from the surface to be treated, and
applying a new protective coating or paint.
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is expected to reside in one or more
other assisted units in the building or
project, and the documented degree of
compliance with the LSHR by the
designated party in regard to the
residential property, as reviewed by
HUD if the designated party wishes to
use its performance record as
demonstrating that no lead-based paint
hazards are likely to be present in other
units. This prioritization is intended to
focus limited federal resources on the
situations of the highest risk to children
under age 6 in other assisted units in the
building or project where exposure to
lead hazards may have occurred. HUD
has, of course, no jurisdiction under
sections 1012 or 1013 of Title X over
unassisted units, but it encourages the
use of the protocol below in unassisted
units, even if it cannot require its
application to those units. Similarly,
regarding lead safety in situations not
covered by the Rule, HUD encourages
housing owners (occupant owners and
landlords), housing maintenance,
management, and renovation firms, and
others to be aware of its hazards, and to
work safely with lead-containing
building materials, for the protection of
the health of occupants, visitors and
workers, and their families.
In general, when the index unit has
been found to have lead-based paint
hazards, and a child under age 6 resides
or is expected to reside in one or more
other assisted units in the building or
project, HUD is proposing certain
actions be undertaken, based on the
type of assistance. Specifically, the
designated party would be required to
(with exceptions as noted below):
• Conduct a risk assessment of those
other units in public housing, projectbased rental assisted multifamily
properties receiving $5,000 or more per
unit per year in HUD assistance, or
HUD-owned and mortgagee-inpossession multifamily properties with
unit selection as described in the
statistically valid random sampling
protocol in Chapter 7, Section V,
Inspections in Multi-family Housing, of
the HUD Guidelines (as discussed
below), or sample all of those other
units.
• Conduct a visual assessment for
deteriorated paint in those other units in
tenant-based rental assisted units,
project-based rental assisted properties
receiving under $5,000 per unit per year
in HUD assistance, or project-based
rental assisted single family housing in
the same project receiving HUD
assistance. Again, when there are a
sufficient number of those other units,
the random sampling protocol in
Chapter 7, Section V, of the HUD
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Guidelines may be used (as discussed
below) for unit selection.
The occupancy of the other assisted
units in the building or project would be
examined to determine in which of
them, if any, children under age 6
resided or were expected to reside as of
the date when, regarding the index unit
and common areas servicing that unit:
• If lead-based paint hazards were
identified, the date the lead hazard
control work passed clearance, that is,
the unit (and/or common area) where
the work was done is completed, and
the residents can move into their unit
(and/or pass through the common area)
based on a successful visual inspection
for completion of the work and
cleanliness is passed and, for work that
would disturb painted surfaces that total
more than a small (‘‘de minimis’’)
amount (defined for the LSHR in 24 CFR
35.1350(d)), passing a residual dust-lead
level test; or
• If no lead-based paint hazards were
identified, the date the environmental
investigation in regard to the child in
the index unit was completed.
The ‘‘expected to reside’’ wording is
used because it is in the statutory and
regulatory definitions of target housing
as the exception to the exemption of
housing for persons with disabilities or
the elderly from target housing. Thus,
housing for persons with disabilities or
the elderly in which a child under age
6 resides or is expected to reside is
covered by the scope of the LSHR.61 As
detailed in the definition section
(§ 35.110) of the LSHR, as proposed to
be amended by this rule:
‘‘Expected to reside means there is
actual knowledge that a child will
reside in a dwelling unit reserved or
designated exclusively for the elderly or
reserved or designated exclusively for
persons with disabilities. If a resident
woman is known to be pregnant, there
is actual knowledge that a child will
reside in the dwelling unit.’’
It is important to note that a
‘‘dwelling unit reserved for the elderly,’’
or a ‘‘dwelling unit . . . designated
exclusively for persons with
disabilities’’ differs from a unit’s
happening to be occupied by the elderly
or by persons with disabilities. A child
may be ‘‘expected to reside’’ in family
housing (i.e., housing available for
general occupancy, meaning that there
are no restrictions on the types of
people who may occupy the unit, or, in
other words, the unit is available for
occupancy in general to all individuals
and families and is not designated or
reserved for any particular category)
61 42 U.S.C. 4822(e)(1), 4851b(27); 24 CFR 35.110,
35.115.
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even if there is no child living there at
a particular time or even if an elderly
family or a family with one or more
persons with disabilities are the
occupants.
When the designated party has this
actual knowledge about another assisted
unit in the building or project, that unit
would be included among those that are
assessed (unless the designated party
had documented to HUD’s satisfaction,
compliance with the LSHR
demonstrating that no lead-based paint
hazards were likely to be present in
other units) and, if lead-based paint
hazards or deteriorated paint (as
applicable) are identified, treated.
The date clearance has passed is used
in establishing the deadline for
conducting the evaluation of the other
units and the control of hazards
identified, so that the designated party
will focus its initial efforts on the index
unit and its associated common areas, in
order to expedite evaluating and, if
necessary, controlling lead-based paint
hazards there.
If a family with a child under age 6
moves in to a unit formerly designated
as one in which no children under age
6 were residing or expected to reside, a
risk assessment or visual assessment (as
applicable, based on the type of
assistance) must be conducted in
accordance with the current rule. If
lead-based paint hazards or deteriorated
paint (as applicable) are found, then,
under the current rule, lead hazard
control will be conducted to protect the
child’s health.
If the index unit has been found to
have lead-based paint hazards, it is
possible that the designated party may
not have met the proposed certain
performance requirements under the
LSHR. Specifically, under the LSHR, the
designated party is responsible for
conducting and documenting current
evaluation, notifications, and
disclosure, and, depending on the type
of assistance, may be responsible for
conducting and documenting ongoing
lead-based paint maintenance and
management (see Sections II.A.3 and 4,
respectively, below).
If the designated party has not met the
applicable performance requirements
above, and a child under age 6 with an
EBLL resides in a unit covered by the
LSHR that has lead-based paint hazards,
HUD is proposing that the designated
party conduct a risk assessment (or
visual assessment, as applicable) in
other dwelling units covered by the
LSHR in which children under age 6
reside or are expected to reside, and the
common areas servicing those units. If
lead-based paint hazards or deteriorated
paint, as applicable, are found in those
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other units, then interim controls or
paint stabilization, as applicable must
be conducted, and clearance passed.
If the designated party has met the
applicable performance requirements
above, and a child under age 6 with an
EBLL resides in a unit covered by the
LSHR, the designated party is
encouraged by HUD to conduct a risk
assessment (or visual assessment, as
applicable) in other dwelling units
covered by the LSHR, although it would
not be required to do so. When the set
of units with children under age 6 has
been identified, if a risk assessment is
to be conducted, the designated party
(in typical practice, through its risk
assessment staff or contractor) would
select either all of these units (and the
common areas that service them) to
assess, or, if the number of units is large
enough (over 20, in pre-1960 housing,
and over 10 in 1960–1977 housing), a
random sample of units (and of the
common areas that service them) in
accordance with the HUD Guidelines,
Chapter 7, Section V.B, Selection of
Housing Units, Common Areas, and
Exterior Site Areas. Random sampling
for risk assessments is appropriate in
the context of an elevated blood lead
level response because it provides ‘‘a
statistically significant degree of
confidence about the existence of leadbased paint hazards,’’ in multifamily
housing, and ‘‘avoids questions about
the quality of the criteria used for
targeting or worst case sample
selection,’’ according to the HUD
Guidelines, Chapter 5, Section III.B.1,
Targeted, Worst Case, and Random
Sampling. This level of programmatic
confidence is particularly important in
addressing housing in which a child has
an EBLL.
When the set of units with children
under age 6 has been identified, if visual
assessment is to be conducted, the
designated party (in typical practice,
through its risk assessment staff or
contractor) would select all of these
units (and the common areas that
service them) to assess. The visual
assessment procedure is much faster
than the risk assessment procedure,
with the trade-off that it provides less
information. Accordingly, conducting a
random sample of units and of common
areas is not appropriate in this context
of a child under age 6 with an EBLL in
the building or project.
However, as under the current LSHR,
if the designated party were to choose
not to evaluate the other units covered
by the LSHR for lead-based paint
hazards (or deteriorated paint, as
applicable), the designated party would
have to presume that lead-based paint
hazards are present in these other units
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and common areas. This is allowable
because the current LSHR provides, in
§§ 35.120(a) and (b), for risk assessments
not to be conducted if ‘‘the designated
party . . . presume[s] that lead-based
paint or lead-based paint hazards or
both are present throughout the
residential property,’’ and use standard
treatments on the painted building
components and horizontal surfaces,
and HUD is continuing to allow the
designated party to use this option. A
designated party may, for example, have
staff or contracts in place to control
presumed lead-based paint hazards, if it
does not wish to delay undertaking the
control activities.
For target housing units receiving
tenant-based rental assistance in which
children under age 6 reside (which are
covered by LSHR subpart M), the
legislative history of Title X, as
described in the preamble to the LSHR
(64 FR 50139, at 50146), supports that,
‘‘Congress did not intend for HUD to
apply the new minimum procedures set
out in section 1012(a) of Title X,’’ in
particular, risk assessments. However,
HUD does not accept the assumption
that ‘‘Congress intended to abolish
HUD’s [then] current procedures’’ for
lead safety evaluation, and those
procedures serve as LSHR’s basis for
requiring a visual assessment for
deteriorated paint in this housing.
Accordingly, HUD is continuing to
allow the approach of using a visual
assessment for this housing in the
context of assessing units and common
areas other than the index unit and
common areas servicing the index unit.
HUD is proposing that if a risk
assessment or a visual assessment (as
applicable) finds lead-based paint
hazards or deteriorated paint (as
applicable), or if these hazards or
deterioration are presumed to exist in
the other dwelling units with children
under age 6 residing or expected to
reside and the common areas servicing
those units, then the approach to
controlling them should be the same as
for the index unit and common areas
servicing the index unit. For all subparts
covered by this rulemaking the control
approach would be interim controls,
except for subpart M on tenant-based
rental assistance, and a portion of
subpart H on project-based rental
assistance (to units receiving under
$5,000 per unit per year or being single
family housing) for which the approach
is paint stabilization. For both, interim
controls and paint stabilization, the
control measure would be followed by
clearance if the amount of deteriorated
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paint is above the LSHR’s de minimis
threshold.62
As in the current rule, the designated
party would be required to implement
lead hazard control measures promptly,
with the period specified in the
applicable subpart of the rule. In
housing covered by the LSHR, for index
units, the period for interim controls
would be 30 calendar days of receiving
the report of the investigation. For other
units covered by the LSHR with
children under age 6 residing or
expected to reside, the period would be
30 calendar days for paint stabilization
(as in the current rule at §§ 35.720(a)(2)
and 35.1215(b)), and a schedule based
on the main threshold for multifamily
unit sampling in the HUD Guidelines’
chapter 7 as a means of characterizing
a large hazard control project: 63 Within
30 calendar days, or within 90 calendar
days if more than 20 units each require
lead hazard control work that would
disturb painted surfaces that total more
than the de minimis threshold of
§ 35.1350, Safe work practices,
paragraph (d), De minimis levels,64 and,
therefore, would require the work to be
done using lead safe work practices and
certified renovation or abatement
firms.65 Basing the schedule on the
62 HUD. Lead Safe Housing Rule. 24 CFR
35.1350(d). The de minimis threshold is either: (1)
20 square feet (2 square meters) on exterior surfaces;
2 square feet (0.2 square meters) in any one interior
room or space; or 10 percent of the total surface area
on an interior or exterior type of component with
a small surface area. Examples include window
sills, baseboards, and trim.
63 Formally, the number of units for which
random sampling provides 95 percent confidence
that fewer than 5 percent of units (or 50 units, for
projects of over 1000 units) have lead-based paint,
for lead-based paint inspections, or lead-based paint
hazards, for risk assessments. For up to 20 units, all
units are sampled; for larger numbers of units, only
a fraction need be sampled. (For routine inspections
and risk assessments, this criterion is applied to
pre-1960 housing, but that year-of-construction
distinction need not be made in this case, because
of the essential difference that the index unit is
known to have lead-based paint hazards.) See the
Guidelines, chapter 7, section V.B.
64 ‘‘Safe work practices are not required when
maintenance or hazard reduction activities do not
disturb painted surfaces that total more than: (1) 20
square feet (2 square meters) on exterior surfaces;
(2) 2 square feet (0.2 square meters) in any one
interior room or space; or (3) 10 percent of the total
surface area on an interior or exterior type of
component with a small surface area. Examples
include window sills, baseboards, and trim.’’
(Reformatted here.)
65 The landlord may be a certified firm. For
example, EPA’s Renovation, Repair and Painting
Program: Property Managers page (www.epa.gov/
lead/renovation-repair-and-painting-programproperty-managers) has the following questions and
answers (reformatted here): ‘‘How can property
managers comply with the RRP rule? Do you or
your employees conduct renovation, repair, or
painting activities in a pre-1978 residential
building? If yes, then you must become a Lead-Safe
Certified Firm. If no, then hire only a Lead-Safe
Certified firm for building maintenance, repair, or
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amount of hazard control work to be
done recognizes resource availability
limitations when large numbers of units
require work. HUD encourages owners
to conduct hazard control work
expeditiously, especially if there are few
other units in which work is to be done.
See the description of the evaluation
and lead-based paint hazard control
approach in Section II.A.1, above, along
with the approach to addressing sources
of lead exposure other than lead-based
paint hazards.
3. Documentation of Current Evaluation,
Notifications, Disclosure
The LSHR requires, in the applicable
subparts of title 24 CFR part 35, that
evaluations be conducted for lead-based
paint, deteriorated paint, and/or leadbased paint hazards, i.e., paint-lead,
dust-lead and soil-lead hazards, as
applicable to the subpart, and that
occupants be notified of the results of
evaluations and hazard reduction
activities.
This proposed rule would retain the
requirement of notification of
evaluations and hazard reduction
activities in accordance with § 35.125,
Notice of evaluation and hazard
reduction activities, of the LSHR. That
section requires notification within 15
calendar days of when the designated
party receives the evaluation report or
the hazard reduction activities have
been completed, to each occupied
dwelling unit affected by the evaluation,
presumption, or hazard reduction
activity or serviced by common areas in
which it took place.
The implementing provisions in other
parts of title 24 CFR incorporate part 35
by reference, including both the LSHR,
in subparts B–R, and the Lead
Disclosure Rule, in subpart A.
Disclosure is required in addition to
notification. Note that any lead-based
paint hazards identified by a risk
assessment or environmental
investigation, and the results of any lead
hazard control work, must, under the
Lead Disclosure Rule, be disclosed to
prospective tenants and buyers, and to
current tenants before lease renewal.
See HUD’s Lead Disclosure Rule Web
site at www.hud.gov/lead. Note also that
HUD’s Lead Disclosure Rule is
substantively identical to EPA’s Lead
Disclosure Rule at 40 CFR part 745
subpart F; see EPA’s Real Estate
Disclosure Web site at https://
www2.epa.gov/lead/real-estatedisclosure/.
HUD is proposing that, if the
designated party has not complied with
painting activities that could disturb lead-based
paint.’’
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these requirements in the 12 months
ending on the date the owner received
the environmental investigation report,
or if it has not provided the HUD field
office documentation demonstrating
compliance, the designated party must
conduct the evaluation and, if
applicable, hazard reduction
requirements in the other assisted
dwelling units with children under age
6 and common areas serving them, as
described in Section II.A.2, above. Note
that, under rules pertaining to the type
of assistance, HUD may consider taking
remedial action under the assistance
contract or agreement as a result of the
noncompliance.
4. Documentation of Ongoing LeadBased Paint Maintenance and
Management
Implementation of ongoing lead-based
paint management and maintenance is
important in ensuring that, between
evaluations, lead-based paint is
maintained properly (such as during
day-to-day occupancy and, in particular,
renovation, repair and painting (RRP)
work) and managed properly (such as
during rehabilitation and modernization
activities) so that lead-based paint
hazards are unlikely to occur. Each of
the five LSHR subparts covering HUDassisted housing for which the current
rule has an EIBLL requirement also
requires ongoing lead-based paint
maintenance. Similarly, when
rehabilitation, under subpart J,
Rehabilitation, is conducted in such
housing, appropriate lead hazard
control is required, as is the use of
properly certified firms and workers in
these activities. Specifically, the LSHR
requires compliance with Federal laws
and authorities for all lead-based paint
activities (24 CFR 35.145). This includes
the Environmental Protection Agency’s
lead-based paint regulations at 40 CFR
part 745, such as its RRP Rule.66
The designated party may have
complied with the evaluation,
notification and disclosure requirements
described in Section II.A.3, above, but
not properly maintained and managed
lead-based paint, lead in dust, and lead
in soil, or not documented compliance.
(Proper management in this context
includes using lead-certified firms and
workers in maintenance and
management activities, and achieving
66 See, especially, 40 CFR part 745 subpart E, on
certified RRP work practices, and renovation firm
and renovator certifications; subpart L, including
conducting certified lead-based paint inspection,
risk assessment and abatement activities, including
clearance examinations when required; and subpart
Q, on State and Indian Tribal certification programs
that complement EPA’s certification programs in
other parts of the Nation in which EPA implements
the certification program.)
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successful clearances for such activities
conducted in accordance with the LSHR
throughout the 12 months ending on the
date the owner received the
environmental investigation report.) In
such a case of inadequate or absent
documentation, or the designated
party’s not having provided the
documentation to the HUD field office,
HUD is proposing that the designated
party must conduct the evaluation and,
if applicable, hazard reduction
requirements in the other dwelling units
with children under age 6 and common
areas serving them, as described in
Section II.A.3, above.
B. Effective Date
HUD is proposing a delayed effective
date for these regulations that would be
one or more months after the date of
publication of the final rule in the
Federal Register. In determining an
appropriate delayed effective date, HUD
considered three options: 1 month, 6
months, and 12 months after
publication of the final rule.
The argument in favor of a 1 month
delayed effective date is based on Title
X (sections 1012 and 1013) requiring the
evaluation and reduction of lead-based
paint hazards in housing receiving
Federal assistance and residential
property owned by the Federal
government. Under one line of
argumentation, any delay beyond the
mandatory 30 day delayed effective date
(42 U.S.C. 3535(o)(3)) in implementing
requirements based on the guidance of
the federal public health agency would
pose an undue risk to the health of
children. The argument for a longer
delayed effective date is that program
administrators at all levels of
government, as well as property owners
and contractors performing lead-based
paint activities, would not have
adequate education and training time to
implement the new criterion and the
associated requirements and procedures
required under the proposed regulation.
Further, the Department recognizes
that HUD clients conducting ongoing
program activities will need time to
incorporate the revised requirements for
responding to cases of children with
elevated blood lead levels into their
programs. As a result, HUD is proposing
to delay the effective date of the final
rule for 6 months after publication of
the final rule as a way to allow all
parties—lead-based paint professionals,
housing agencies, state and local
government agencies, and private
property owners—time to prepare for
proper implementation of the revised
requirements. The Department shares
the concern of the public health
community that delays in implementing
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these requirements may have young
children with EBLLs living in certain
HUD-assisted housing where no
environmental intervention has taken
place spend a longer amount of time in
that housing than the time it takes to
control the lead-based hazard. At the
same time, however, it would be
impractical for HUD to establish a 30
day delayed effective date knowing that
the organizational infrastructure
necessary to carry it out would not be
fully in place.
Because most of the LSHR went into
effect 12 months after its publication,67
and this rulemaking would affect only a
small fraction of the housing covered by
the whole LSHR, HUD is proposing that
this rulemaking go into effect sooner
than 12 months. More specifically, HUD
believes that a 6 month delayed
effective date is sufficient for designated
parties to be informed of the rule’s
becoming final and to prepare for taking
action if a child residing in the assisted
units has an EIBLL. Most designated
parties would not need to take any
action in response to this proposed rule,
if adopted, because they will not have
any children under age 6 in programs
covered by this rulemaking who have
EBLLs, and those that will need to take
action will do so on an occurrence basis,
rather than in the anticipation of a likely
EBLL.
HUD welcomes comments on the
length of the proposed delayed effective
date for this rule.
C. Subparts
1. Subpart B—General Lead-Based
Paint Requirements and Definitions for
All Programs. This subpart sets out
general requirements for federally
owned residential property and housing
receiving Federal assistance.
a. Definitions. HUD is proposing to
add two new terms, delete one term,
and revise two terms, in § 35.110,
Definitions:
Elevated blood lead level. In this rule,
HUD proposes to replace the EIBLL
threshold with the EBLL threshold that
is the blood lead level in children under
6 years of age for which CDC guidance
says that an environmental intervention
should be conducted. The EBLL will be
used for determining when
environmental interventions are to be
taken under the LSHR.
As discussed in Section I, above, in
2013, CDC revised its guidance to
provide an operational definition of
EBLL based on data from NHANES, and
committed to update that definition
every four years. Accordingly, HUD is
67 HUD Lead Safe Housing Rule. 24 CFR 35.105
Effective dates.
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proposing to add a definition of EBLL so
that the term can be used in the program
subparts instead of writing out the full
wording of the definition in each
applicable section.
Specifically, elevated blood lead level
means a confirmed concentration of
lead in whole blood of a child under age
6 equal to or greater than the
concentration in guidance published by
the Department of Health and Human
Services for recommending that an
environmental intervention be
conducted.
The entity mentioned in the
definition is the Department of Health
and Human Services, rather than CDC,
in order to accommodate the possibility
that that Department could choose to
have another organizational unit than
CDC announce the updated EBL value,
without HUD having to amend this Rule
to reflect that updated value.
HUD is proposing to add a definition
that elevated blood lead level means a
confirmed concentration of lead in
whole blood of a child under age 6
equal to or greater than the
concentration in the most recent
guidance published by the Department
of Health and Human Services on
recommending that an environmental
intervention be conducted.
ii. Environmental intervention blood
lead level. For the reasons discussed
above in regard to adding the definition
of elevated blood lead level, the term
environmental intervention blood lead
level is no longer needed in the program
subparts of the LSHR, so HUD is
proposing to delete the definition of
environmental intervention blood lead
level. This proposed rule replaces the
term environmental intervention blood
lead level with the term elevated blood
level throughout the LSHR.
iii. Environmental investigation. For
purposes of clarity, brevity, and
consistency with CDC’s response to
ACCLPP, the term environmental
investigation is defined in this proposed
regulation the way it is defined in the
HUD Guidelines. Specifically, an
environmental investigation would be
defined to mean the process of
determining the source of lead exposure
for a child under age 6 with an elevated
blood lead level, consisting of
administration of a questionnaire,
comprehensive environmental
sampling, case management, and other
measures, in accordance with chapter
16 of the HUD Guidelines for the
Evaluation and Control of Lead-Based
Paint Hazards in Housing
(‘‘Guidelines’’). With HUD proposing
that an environmental investigation in
response to EBLL cases be included in
the program subparts of the LSHR, HUD
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proposes to define the term rather than
having to write out its substance in each
applicable section. Accordingly, HUD is
proposing to add a definition that
environmental investigation means the
process of determining the source of
lead exposure for a child under age 6
with an elevated blood lead level,
consisting of administration of a
questionnaire, comprehensive
environmental sampling, case
management, and other measures, as all
of these elements are conducted in
accordance with chapter 16 of the HUD
Guidelines for the Evaluation and
Control of Lead-Based Paint Hazards in
Housing (‘‘Guidelines’’). See preamble
Section II.A.1, above, for a summary of
the environmental investigation
protocol.
iv. Evaluation. In the current LSHR,
an evaluation is a risk assessment, a
lead hazard screen, a lead-based paint
inspection, paint testing, or a
combination of these to determine the
presence of lead-based paint hazards or
lead-based paint. This proposed rule
would add the term environmental
investigation, as discussed above, to the
list of activities that are evaluations. As
a result, in accordance with the LSHR,
§ 35.125(a), Notice of evaluation or
presumption, when an environmental
investigation is conducted in a housing
unit or common area servicing the units,
the tenants will be notified of the
results. However, a prohibition against
posting a notice of environmental
investigation in centrally located
common areas is added to § 35.125(d)
for the protection of the privacy of the
child and the child’s family or
guardians, in accordance with the
Health Insurance Portability and
Accountability Act (HIPAA).68
v. Expected to reside. For purposes of
clarity, the phrases ‘‘reserved for’’ and
‘‘designated exclusively for’’ in the
current LSHR are being unified into the
single term ‘‘reserved or designated
exclusively for.’’ Specifically, ‘‘reserved
for the elderly’’ in regard to whether
pre-1978 housing is target housing is
being revised to ‘‘reserved or designated
exclusively for the elderly,’’ and
‘‘designated exclusively for persons
with disabilities’’ is being revised to
‘‘reserved or designated exclusively for
persons with disabilities.’’ Certain
housing laws and HUD regulations use
one or the other phrase.69 Using a
unified term eliminates possible
confusion about the applicability of the
exemption based on the statutory or
regulatory history of the type of
assistance to a property, allowing HUD
and designated parties to focus on the
current status of the assistance.
2. Subpart D—Project-Based
Assistance Provided by a Federal
Agency Other Than HUD. This subpart
sets out minimum requirements,
consistent with section 1012 of Title X,
for Federal agencies other than HUD
that have housing programs that provide
more than $5,000 of project-based
assistance per unit per year to a target
housing property.
This subpart currently requires
specific actions in response to a child
with an environmental intervention
blood lead level in § 35.325. In addition
to revising this section to refer to an
elevated blood lead level, HUD proposes
that the change in evaluation method be
updated to reflect the change from risk
assessment to environmental
investigation.
HUD is proposing that children under
age 6 in this housing be covered when
they live in other units in the building
or project. Specifically, if the
environmental investigation of the
index unit identifies any lead-based
paint hazards, the owner would
generally, as described below, conduct a
risk assessment for other assisted
dwelling units in which a child under
age 6 resides or is expected to reside on
the date interim controls are complete,
and for the common areas serving those
units. Risk assessments would be
conducted within 30 calendar days after
receipt of the environmental
investigation report on the index unit if
there are 20 or fewer such units, or 60
calendar days for risk assessments if
there are more than 20 such units. If the
risk assessment were to identify leadbased paint hazards, the owner would
have to control the hazards in those
units and common areas. The control
work would have to be done within 30
calendar days, or within 90 calendar
days if more than 20 units have leadbased paint hazards such that the
control work would disturb painted
surfaces that total more than the de
minimis threshold of § 35.1350(d), as
discussed in Section I.A.2, above. These
requirements for other units would not
apply if either the owner conducted a
68 See the HIPAA in regard to privacy of children
and their families regarding individually
identifiable health information. See, especially
HIPAA § 1171, creating 42 U.S.C. 1320d–6,
Wrongful disclosure of individually identifiable
health information, with the definition of the term
created at 42 U.S.C. 1320d(6).
69 See, e.g., 42 U.S.C. 1437e, Designated housing
for elderly and disabled families, 24 CFR
880.612a(d)(1), which mentions vacant units
‘‘reserved for elderly families;’’ and 24 CFR
945.105, in which ‘‘Mixed population project
means a public housing project reserved for elderly
families and disabled families.’’
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risk assessment and conducted interim
controls of identified lead-based paint
hazards between the date the child’s
blood was last sampled and the date the
owner received the notification of the
elevated blood lead level; or if the
owner has documentation of
compliance with evaluation,
notification, lead disclosure, ongoing
lead-based paint maintenance, and leadbased paint management requirements
under this part throughout the 12
months preceding the date the owner
received the environmental
investigation report, Federal agencies
other than HUD would be responsible
for updating their policies under this
subpart and implementing them.
3. Subpart H—Project-Based
Assistance. This subpart establishes
procedures to eliminate as far as
practicable lead-based paint hazards in
residential properties receiving projectbased assistance under a HUD program.
This subpart covers several categories
of project-based assistance programs.
Section 35.715 covers project-based
assistance to multifamily properties
receiving more than $5,000 per unit per
year, and includes a paragraph (d) on
properties that have not yet had a risk
assessment conducted in accordance
with paragraph (a). Section 35.720
covers multifamily properties receiving
up to $5,000 per unit per year, and
single family properties. Both sections
incorporate the same § 35.730, about a
child with an environmental
intervention blood lead level, by
reference. HUD is proposing that
§ 35.730, be revised to reflect the
protocol for addressing elevated blood
level cases as described above.
Regarding other dwelling units in the
property covered by this subpart other
than the index unit, HUD is proposing
that, if the environmental investigation
report on the index unit identifies leadbased paint hazards, then, for units in
which a child under age 6 resides:
• Evaluation (risk assessment (per
§ 35.715(a)) or visual assessment (per
§ 35.720(a)(1)), as applicable) would be
conducted within 30 calendar days after
receipt of the environmental
investigation report on the index unit
for visual assessments, 30 calendar days
for risk assessments if there are 20 or
fewer such units, or 60 calendar days for
risk assessments if there are more than
20 such units. These periods provide
promptness while recognizing that more
than one unit may have to be assessed,
and the limited availability of certified
risk assessors in some jurisdictions, so
that the 15-day period used in
§ 35.730(a) for conducting an evaluation
on that one, index, unit may not be
sufficient for the owner to arrange for
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identifying other units where a child
under 6 resides or is expected to reside,
and having the evaluation of those other
units conducted. HUD encourages
owners to conduct these evaluations
expeditiously, especially if there are a
small number of other units to be
evaluated.
• Hazard control work be completed
in these other units on a schedule
described above: within 30 calendar
days, or within 90 calendar days if more
than 20 units have lead-based paint
hazards such that the control work
would disturb painted surfaces that total
more than the de minimis threshold of
§ 35.1350(d). HUD encourages owners to
conduct hazard control work
expeditiously, especially if there are few
other units in which work is to be done.
As noted above, to enable prompt
HUD monitoring of implementation of
the evaluation and hazard control
procedures under this subpart when an
EBLL case has occurred, HUD is
proposing that the designated party
notify the HUD field office and HUD’s
OLHCHH within 5 business days of
being so notified by the public health
department or medical health care
professional.
It should be noted that CDC used the
terms ‘‘multi-family housing’’ and
‘‘housing complex’’ in its Response to
ACCLPP recommendation XI to refer to
a group of buildings, apartments, etc.,
that are located near each other and
used for a particular purpose, as
‘‘complex’’ is commonly defined in the
building context. HUD regulations and
program documents use several terms to
refer to such a similar group of
residential buildings, including
‘‘complex,’’ ‘‘buildings,’’ ‘‘apartments,’’
and ‘‘project.’’ For the sake of
uniformity, and to provide clarity for
HUD stakeholders, the HUD synonym
‘‘project’’ is used in this and other
subparts of the LSHR outside of
quotations from CDC that use
‘‘complex.’’
HUD proposes to make a technical
correction to § 35.715, to redesignate
paragraph (d)(4), on blood lead level
response, which requires the response
until a risk assessment of a property is
conducted, but does not require a blood
lead level response after the risk
assessment is done, as paragraph (e).
The current paragraph numbering
inadvertently makes the requirement for
the higher level of assistance in this
section less stringent than the
requirement for the lower level of
assistance covered by § 35.720. As a
result of correcting this inconsistency,
the redesignation would have the
requirement apply to multifamily
properties receiving more than $5,000
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per unit, whether before or after the risk
assessment has been conducted.
4. Subpart I—HUD-Owned and
Mortgagee-in-Possession Multifamily
Property. The purpose of this subpart is
to establish procedures to eliminate, as
far as practicable, lead-based paint
hazards in a HUD-owned multifamily
residential property or a multifamily
residential property for which HUD is
identified as mortgagee-in-possession.
This subpart currently requires
specific actions in response to a child
with an environmental intervention
blood lead level in § 35.830; the
requirements are generally the same
with respect to risk assessment,
verification, hazard reduction, and
reporting requirement as those for
housing receiving project-based rental
assistance in § 35.730, discussed in
Section II.C.3. The difference is that,
because HUD is the owner of these
properties covered by § 35.830, the term
‘‘HUD’’ is used here where the wording
‘‘the owner’’ is used in § 35.730.
HUD is proposing that § 35.830 be
revised to reflect the protocol for
addressing EBLL cases as described
above, with the difference that, because
HUD is the owner of these properties,
for specificity, ‘‘HUD’’ would be used in
§ 35.830 rather than the phrase ‘‘the
owner’’ that would be used in § 35.730.
As noted above, to enable prompt
HUD OLHCHH monitoring of
implementation of the evaluation and
hazard control procedures under this
subpart when an EBLL case has
occurred, HUD is proposing that the
HUD office managing the property
notify the HUD field office and the
OLHCHH within 5 business days of
being so notified by the public health
department or medical health care
professional.
5. Subpart L—Public Housing
Programs. The purpose of this subpart L
is to establish procedures to eliminate,
as far as practicable, lead-based paint
hazards in public housing. More
formally, public housing is residential
property assisted under the 1937 Act,
excluding housing assisted under
section 8 of the 1937 Act. Target
housing assisted under section 8 is
covered by subparts D, H, and M of the
LSHR, rather than this subpart L.
This subpart currently requires
specific actions in response to a child
with an environmental intervention
blood lead level in § 35.1130, which are
generally the same as those for housing
receiving project-based rental assistance
in § 35.730 of subpart H, discussed in
Section II.C.3, with a difference in
terminology and some additional
requirements.
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Regarding the terminology, because
the public housing agency (PHA) carries
out the lead-based paint functions of
owner of the properties covered by
§ 35.1130, the term ‘‘PHA’’ is used
where the term ‘‘owner’’ is used in
§ 35.730. Similarly, ‘‘public housing
development’’ is used in this section,
where ‘‘dwelling unit to which this
subpart applies’’ is used in § 35.730.
HUD is proposing that § 35.1130(e)
require that PHAs report each confirmed
(previously labelled ‘‘known,’’ and
revised to follow CDC terminology more
closely) case of a child with an EBLL to
the HUD field office; in the currently
codified rule such reporting is required
for EIBLL cases. As noted above, to
enable prompt HUD monitoring of
implementation of the evaluation and
hazard control procedures under this
subpart when an EBLL case has
occurred, HUD is proposing that the
designated party also notify the
OLHCHH within 5 business days of
being so notified by the public health
department or medical health care
professional of an EBLL case.
The case of the PHA not completing
the hazard reduction required by
§ 35.1130, which was not addressed in
the original rule, is addressed here by
noting the linkage between the LSHR
and the Uniform Physical Condition
Standards (UPCS) at § 5.703, which are
incorporated by reference into the
public housing regulations at 24 CFR
part 965. In particular, if the hazard
reduction is not completed, the
dwelling unit is not free of lead-based
paint hazards, so it is in violation of
§ 5.703(f), which among other things,
requires that the housing be free of leadbased paint hazards. The UPCS are
incorporated by reference into the
public housing physical condition
standards at § 965.601. The LSHR,
including its subpart L, Public Housing,
is also incorporated by reference into
the public housing standards at
§ 965.701.
Most significantly, current
§ 35.1130(f) establishes requirements for
PHAs regarding other units in the
building with the index unit if the risk
assessment of the index unit and
common areas servicing the index unit
identifies lead-based paint hazards but
previous evaluations of the building did
not identify lead-based paint or leadbased paint hazards. In such a case, the
PHA is required to conduct a risk
assessment of other units covered by the
LSHR in the building, and interim
controls of identified hazards.
HUD is proposing that, generally, if
previous evaluations of the building did
identify lead-based paint or lead-based
paint hazards, and the risk assessment
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of the index unit and common areas
servicing the index unit identifies leadbased paint hazards, then, generally, the
PHA would conduct a risk assessment
in other dwelling units covered by the
LSHR in which a child under age 6
resides or is expected to reside (and the
common areas that service those units).
The risk assessments would have to be
conducted on a schedule described
above, within 30 calendar days after
receipt of the environmental
investigation report if there are 20 or
fewer such units, or 60 calendar days if
there are more such units. If lead-based
paint hazards are found in any of these
other units, they would have to be
controlled on a schedule described
above, within 30 calendar days, or
within 90 calendar days if more than 20
units have lead-based paint hazards
such that the control work would
disturb painted surfaces that total more
than the de minimis threshold of
§ 35.1350(d). However, if the PHA has
met the applicable performance
requirements in Section II.A.2, above,
for conducting current evaluations,
notifications, disclosure, and ongoing
lead-based paint maintenance and
management in the 12 months before
receiving the report of a child with
EBLL in the index unit, and provides
the HUD field office with
documentation of its regulatory
compliance, HUD would encourage the
PHA to conduct a risk assessment in
other dwelling units covered by the
LSHR in which a child under age 6
resides (and the common areas that
service them), although it would not be
required to do so.
HUD is proposing that § 35.1130 be
revised to refer to an elevated blood lead
level, and that the section be updated to
reflect the protocol for addressing EBLL
cases as described above, with the
differences that, because the PHA is the
owner of these properties, for
specificity, ‘‘PHA’’ would be used in
§ 35.1130 rather than the phrase ‘‘the
owner’’ that would be used in § 35.730.
HUD is proposing to make a technical
correction to § 35.1130(f). The first
sentence (which HUD is proposing to
redesignate as § 35.1130(f)(1)) discusses
the requirement for the PHA to conduct
interim controls of identified hazards in
accordance with the schedule provided
in, according to the currently codified
rule, § 35.1120(c). The pertinent
schedule in § 35.1120 is, however, in
paragraph (b), not paragraph (c), so HUD
proposes to correct the citation.
6. Subpart M—Tenant-Based Rental
Assistance. The purpose of this subpart
is to establish procedures to eliminate as
far as practicable lead-based paint
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hazards in housing occupied by families
receiving tenant-based rental assistance.
This subpart currently requires
specific actions in response to a child
with an environmental intervention
blood lead level in § 35.1225, Child with
an environmental intervention blood
lead level; similar to those for housing
receiving project-based rental assistance
in § 35.730 of subpart H, discussed in
Section II.C.3, with a difference in
terminology and some variations in
requirements.
Regarding the terminology, because of
the variety of HUD assistance programs
covered by this subpart (see
§ 35.1200(a)), the generic term
‘‘designated party’’ is used where the
term ‘‘owner’’ is used in § 35.730 for
project-based assisted housing.
As noted above, to enable prompt
HUD monitoring of implementation of
the evaluation and hazard control
procedures under this subpart when an
EBLL case has occurred, HUD is
proposing that the designated party
notify the HUD field office and the
OLHCHH within 5 business days of
being so notified by the public health
department or medical health care
professional.
Regarding the other tenant-based
rental assisted units where a child less
than 6 years is residing or expected to
reside in a building with a tenant-based
rental assisted unit with a child less
than 6 years who has an EBLL, as noted
in Section II.C.2, above, HUD is
proposing that those other units and
common areas servicing them receive a
visual assessment for deteriorated paint.
(As noted above, HUD does not have the
discretion to require risk assessments in
those other units and common areas
servicing those other units.) The visual
assessments would have to be
conducted within 30 calendar days after
receipt of the environmental
investigation report. Similarly, the
response action, should deteriorated
paint be identified, would be paint
stabilization, a treatment that does not
require the quantitative information
about dust-lead and soil-lead levels
needed for the full set of interim control
activities that a risk assessment
provides. If deteriorated paint is found
in any of these other units, the paint
would have to be stabilized on a
schedule described above, within 30
calendar days, or within 90 calendar
days if more than 20 units have
deteriorated paint such that the control
work would disturb painted surfaces
that total more than the de minimis
threshold of § 35.1350(d). Of course, a
designated party may choose to conduct
a risk assessment or environmental
investigation of those other units and
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common areas, and conduct interim
controls if lead-based paint hazards are
identified, and even conduct that
evaluation and hazard control in
unassisted units with children under
age 6, and HUD encourages them to do
so.
For the sake of clarity regarding target
housing occupied by families receiving
tenant-based rental assistance with
children under age 6 in which
deteriorated paint has been identified by
a visual assessment, HUD proposes to
add a sentence to the end of
§ 35.1215(b). Regarding a subsequent
housing assistance payment (HAP)
contract for the unit (i.e., after the unit
is no longer under the original HAP
contract), the added sentence would
provide that paint stabilization must be
completed for a family with a child
under age 6 to occupy that unit. This
would reaffirm the first sentence of
paragraph (b), that, for units to be
occupied by a child under age 6, the
owner shall stabilize each deteriorated
paint surface before commencement of
assisted occupancy. The placement of
this sentence will strengthening the
protection against children under age 6
being lead poisoned by clarifying the
need for paint stabilization before the
unit is occupied by a child under age 6
under a HAP contract.
D. Specific Questions for Comments
While HUD welcomes comments on
all aspects of this proposed rule, HUD
is seeking specific comment on the
following questions:
1. To facilitate effective HUD
monitoring of responses to a case of an
elevated blood lead level, the proposed
rule would have designated parties
provide documentation to HUD that the
response actions have been conducted
in the child’s unit and in all other
assisted units with a child under age 6,
or if there are such other units, that the
designated party has been complying
with the LSHR for the past 12 months,
and need not evaluate those other units.
a. Is this approach sufficient for HUD
to effectively monitor response actions
in these cases, and why? Are there areas
in which reporting and oversight could
be strengthened?
b. Can the approach to monitoring
response actions in these cases be
streamlined while maintaining its
effectiveness, and if so, how?
2. Regarding the definition of elevated
blood lead level in the proposed rule, is
the definition appropriately protective
of the health of children in assisted
housing covered by the rule? Too
protective? Not protective enough?
Why?
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3. Regarding the set of types of
housing assistance covered by the
proposed rule (i.e., in the covered
subparts D, H, I, L, and M), is this set
appropriately protective of the health of
children in assisted housing?
a. If it is too protective, why, and
which types of housing assistance
should be removed from the proposed
rule?
b. If it is not protective enough, why,
which additional type or types of
housing assistance should be included,
and how would sufficient resources be
provided to ensure implementation and
monitoring of the rule in that additional
assisted housing?
4. If interim controls or abatement in
a housing unit takes longer than 5
calendar days, or if other occupant
protection requirements of 24 CFR
35.1345(a)(2) are not met, the occupants
of the unit shall be shall be temporarily
relocated before and during hazard
reduction activities.
a. HUD is seeking data on the fraction
of lead hazard control activities that
take longer than 5 calendar days,
including the type of activity (e.g.,
interim control or abatement; the hazard
control method used (e.g., if abatement,
component removal, paint stripping,
enclosure, encapsulation, etc.), the
extent of the work, the reason that the
activities cannot be completed within 5
calendar days, whether the housing is a
single family, duplex, triplex, quad, or
multifamily housing, whether it is
located in an urban, suburban, or rural
area, whether the EPA has authorized
the state to administer the applicable
lead certification program (i.e.,
renovation or abatement), and other
factors that are causing temporary
relocation to be required under the rule.
b. HUD is seeking information on the
costs of temporary relocation, on a per
day basis (average amount or dayspecific amounts, as is available),
including breakouts of expenses for
such categories as lodging,
transportation, meals, and incidental
expense amounts, if the information is
available that way, or as lump sum perday or per relocation period amounts.
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
III. Findings and Certifications
Regulatory Review—Executive Orders
12866 and 13563
Under Executive Order 12866
(Regulatory Planning and Review), a
determination must be made whether a
regulatory action is significant and,
therefore, subject to review by the Office
of Management and Budget (OMB) in
accordance with the requirements of the
order. Executive Order 13563
(Improving Regulations and Regulatory
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Review) directs executive agencies to
analyze regulations that are ‘‘outmoded,
ineffective, insufficient, or excessively
burdensome, and to modify, streamline,
expand, or repeal them in accordance
with what has been learned. Executive
Order 13563 also directs that, where
relevant, feasible, and consistent with
regulatory objectives, and to the extent
permitted by law, agencies are to
identify and consider regulatory
approaches that reduce burdens and
maintain flexibility and freedom of
choice for the public.
OMB reviewed this proposed rule
under Executive Order 12866 (entitled
‘‘Regulatory Planning and Review’’).
This rule was determined to be a
‘‘significant regulatory action,’’ as
defined in 3(f) of the order. The docket
file is available for public inspection
electronically at Federal eRulemaking
Portal at https://www.regulations.gov
under the title and docket number of
this rule.
Regulatory Impact Assessment
HUD is publishing, concurrently with
this proposal, its draft Regulatory
Impact Analysis (RIA) that examines the
costs and benefits of the proposed
regulatory action in conjunction with
this proposed rule, organized into three
sections: Cost-Benefit Analysis;
Sensitivity Analysis; and Economic
Impacts. The RIA is available on-line at:
https://www.regulations.gov. The major
findings in the RIA are presented in this
summary.
The analysis of net benefits reflects
costs and benefits associated with the
first year of hazard evaluation and
reduction activities under the proposed
rule. These costs and benefits, however,
include the present value of future costs
and benefits associated with first year
hazard reduction activities. For
example, the costs associated with first
year activities include the present value
of future reevaluation costs. Similarly,
the benefits of first year activities
include the present value of lifetime
earnings benefits for children living in
or visiting the affected unit during that
first year, and for children living in or
visiting that unit during the second and
subsequent years after hazard reduction
activities.
In regard to the discount rate used for
this regulatory analysis, HUD is using
both the 3 percent, and the 7 percent
discount rates in accordance with OMB
guidance in OMB Circulars A–4 on
Regulatory Analysis,70 and A–94 on
Guidelines and Discount Rates for
Benefit-Cost Analysis of Federal
70 https://www.whitehouse.gov/omb/circulars_
a004_a-4/.
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60321
Programs.71 By presenting results using
both 3 and 7 percent discount rates,
HUD is providing a broad view of costs
and benefits.
Employing a 3 percent discount rate
of the lifetime earnings estimates, the
RIA concludes that monetized benefits
of activities have a present value of
$97.91 million; while first-year costs are
$22.17 million. Thus the estimated net
benefit is $75.74 million using a 3
percent discount rate. If a 7 percent
discount rate is used for lifetime
earnings benefits, the monetized present
value of the benefits of the proposed
rule are estimated to be $31.81 million,
and estimated first year costs remain at
$22.17 .28 million. The proposed rule
would therefore be seen as having a net
benefit of $9.64 million using the 7
percent discount rate. Further, the
monetized benefit estimates represent a
lower bound on benefits, as they only
account for lifetime earnings resulting
from cognitive impacts on children
under age six. Reductions in lead
exposure would be expected to result in
additional health benefits for these
children, as well as older children and
adults living in or visiting the housing
units addressed by the rule. Such
additional benefits include avoidance of
decreased attention, increased
impulsivity, hyperactivity,72 impaired
hearing, slowed growth, delayed
menarche,73
That the benefit-cost calculation
giving lower weight to future
generations shows a smaller net benefit
is not surprising, given that the
monetized benefits of the rule pertain to
the future earnings of children under
age 6, while the costs pertain to the
designated parties of the housing in
which the young children currently
reside. As noted above, the calculation
included monetized but not nonmonetized quality of life factors
associated with children’s lower
intelligence, fewer skills, and reduced
education and job potential, and adults’
decreased cognitive function
decrements, psychopathological effects
(self-reported symptoms of depression
and anxiety), hypertension, coronary
heart disease, blood system effects
(decreased red blood cell survival and
function, and altered heme synthesis),
71 https://www.whitehouse.gov/omb/circulars_
a094.
72 EPA. Integrated Science Assessment for Lead
(see fn. 1, above). 2013. Table ES–1. p. lxxxiii–
lxxxvii.
73 Selevan SG, Rice DC, Hogan KA, Euling SY,
Pfahles-Hutchens A, Bethel J. Blood lead
concentration and delayed puberty in girls. N Engl
J Med. 2003 Apr 17;348(16):1527–36.
www.nejm.org/doi/full/10.1056/NEJMoa020880.
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male reproductive function decrements,
among other effects.74
Paperwork Reduction Act Statement
The number of housing units that
would require evaluation, possible
hazard reduction, and/or reporting of
EBLL information to HUD would be
changed by the proposed rule.
Accordingly, HUD is requesting OMB
approval for revising its information
collection request approval to reflect the
change in the burden.
The information collection
requirements contained in this rule have
been submitted to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act of 1995
(44 U.S.C. 3501–3520), for incorporation
under existing OMB approval number
2539–0009. In accordance with the
Paperwork Reduction Act of 1995, an
agency may not conduct or sponsor, and
a person is not required to respond to,
a collection of information unless the
collection displays a currently valid
OMB control number.
TABLE 1—REQUIREMENTS FOR NOTIFICATION, EVALUATION, AND REDUCTION OF LEAD-BASED PAINT HAZARDS IN
FEDERALLY OWNED RESIDENTIAL PROPERTY AND HOUSING RECEIVING FEDERAL ASSISTANCE
Number of
respondents
Information collection
Frequency of
response
Total annual
responses
Burden hours
per response
Total annual
burden hours
Total annual
cost
6,887
6,887
6,887
6,887
6,887
4
3.17
8
4
4
27,550
21,833
55,100
27,550
27,550
0.175
0.1
0.1
0.033
1
4,821
2,183
5,510
909
27,550
$42,819
25,707
59,404
10,808
278,907
Total or Average ...............................
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Notice of Evaluation .................................
Notice of Reduction .................................
Summary Reporting .................................
Recordkeeping .........................................
EBLL Report ............................................
6,887
23
159,583
5.95
40,974
417,645
In accordance with 5 CFR
1320.8(d)(1), HUD is soliciting
comments from members of the public
and affected agencies concerning the
information collection requirements in
this interim rule regarding:
(1) Whether the collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
(2) The accuracy of the agency’s
estimate of the burden of the collection
of information;
(3) Whether the collection of
information enhances the quality,
utility, and clarity of the information to
be collected; and
(4) Whether the information
collection minimizes the burden of the
collection of information on those who
are to respond; including through the
use of appropriate automated collection
techniques or other forms of information
technology (e.g., permitting electronic
submission of responses).
Interested persons are invited to
submit comments regarding the
information collection requirements in
this rule. Under the provisions of 5 CFR
part 1320, OMB is required to make a
decision concerning this collection of
information between 30 and 60 days
after the publication date. Therefore, a
comment on the information collection
requirements is best assured of having
its full effect if OMB receives the
comment within 30 days of the
publication date. This time frame does
not affect the deadline for comments to
the agency on the interim rule, however.
Comments must refer to the interim rule
by name and docket number (FR–5816–
P–01) and must be sent to: HUD Desk
Officer, Office of Management and
Budget, New Executive Office Building,
Washington, DC 20503, Fax number:
(202) 395–6947.
And
Anna P. Guido, HUD Reports Liaison
Officer, Department of Housing and
Urban Development, 451 7th Street SW.,
Room 4186, Washington, DC 20410.
Interested persons may submit
comments regarding the information
collection requirements electronically
through the Federal eRulemaking Portal
at https://www.regulations.gov. HUD
strongly encourages commenters to
submit comments electronically.
Electronic submission of comments
allows the commenter maximum time to
prepare and submit a comment, ensures
timely receipt by HUD, and enables
HUD to make them immediately
available to the public. Comments
submitted electronically through the
https://www.regulations.gov Web site can
be viewed by other commenters and
interested members of the public.
Commenters should follow the
instructions provided on that site to
submit comments electronically.
The information collection
requirements contained in this rule have
been submitted to the Office of
Management and Budget under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501–3520). HUD has
determined that the following
provisions contain information
collection requirements: 24 CFR part 35,
subparts D, H, I, L, and M.
Regulatory Flexibility Act
In accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), HUD
has reviewed this proposed rule before
publication and by approving it for
publication, certifies that the proposed
regulatory requirements would not have
a significant economic impact on a
substantial number of small entities,
other than those impacts specifically
required to be applied universally by
the statute. As discussed below, the
requirements of the proposed rule are
applicable only to a limited and
specifically defined portion of the
nation’s housing stock. To the extent
that the requirements affect small
entities, the impact is generally
discussed in the economic analysis that
accompanies this proposed rule.
Specifically, the economic analysis
estimated the number of index units and
other assisted units to be evaluated and,
possibly, based on the evaluation,
having lead hazard control work done.
For each type of assistance and for all
types of assistance together, the
economic analysis also estimated:
• The cost per unit of the evaluation
(environmental investigation for index
units, and risk assessments or visual
assessment for other units that are
assisted and have a child under age 6
residing, as per the current LSHR);
• The total cost of the evaluation and
hazard control (for index units, other
units, and both); and
74 EPA. Integrated Science Assessment for Lead
(see fn. 1, above). 2013. Table ES–1. p. lxxxiii–
lxxxvii.
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• The percentage of units evaluated
and possibly, based on the evaluation
results, hazard controlled (again, for
index units, other units, and both).
60323
The estimates are summarized in the
table below.
Public
housing
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Number of index units ...........................................................................................
Average cost per index unit for environmental investigation and hazard control
Cost for index units ...............................................................................................
Other assisted units with children under age 6 ....................................................
Average cost per other assisted housing unit for risk assessment (or visual assessment) and hazard control ...........................................................................
Cost for other assisted units .................................................................................
Total cost ...............................................................................................................
Total number of units evaluated and possibly hazard controlled .........................
Total number of assisted units ..............................................................................
Percent of assisted units evaluated and possibly hazard controlled ...................
Among the key results are that:
• About 6,887 housing units would
have a child under age 6 with a blood
lead level that is elevated but not an
environmental intervention blood lead
level; these units would be required to
have an environmental investigation
and have any lead-based paint hazards
controlled.
• About 14,935 other housing units
would be evaluated and have any leadbased paint hazards controlled.
• About 0.46 percent of the assisted
housing stock covered by this
rulemaking would be evaluated and
have any lead-based paint hazards
controlled, specifically, 0.90 percent of
the public housing stock, 0.44 percent of
the HUD project-based rental assisted
housing stock, 0.28 percent of the
tenant-based rental assisted housing
stock, and 0.14 percent of the U.S.
Department of Agriculture (USDA)
project-based rental assisted housing
stock.
• The total cost of evaluation and
control (and the small amount of
temporary relocation of occupants)
would be $26.63 million, including
$10.01 million for public housing, $6.33
million for HUD project-based rental
assisted housing, $9.81 million for
tenant-based rental assisted housing,
and $286,000 for USDA project-based
rental assisted housing.
• Using the 3 percent discount rate,
benefits are estimated at $97.91 million,
with net benefits (i.e., benefits less the
$22.17 million in costs) estimated at
$75.74 million. Using the OMB’s 7
percent discount rate, benefits are
estimated at $31.81 million, with costs
remaining at $22.17 million, so the net
benefits would be $9.65 million.
• Regarding index units, for FY 2017,
an estimated 1,899 units of public
housing, 1,494 units of HUD projectbased rental assisted housing, 3,383
units of tenant-based rental assisted
housing, and 112 units of USDA projectbased rental assisted housing have
children under age 6 with EBLLs that
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HUD
Projectbased
Tenantbased
1,899
$2,680
$5,090,047
8,014
1,494
$2,680
$4,004,506
3,783
3,383
$2,680
$9,066,416
2,855
112
$2,680
$300,206
284
6,887
........................
$18,461,176
14,935
$615
$4,924,470
$10,014,517
9,913
1,100,000
0.90%
$615
$2,324,545
$6,329,051
5,277
1,200,000
0.44%
$260
$740,829
$9,807,245
6,237
2,200,000
0.28%
$615
$174,264
$474,471
396
286,108
0.14%
........................
$8,164,108
$26,625,284
21,822
4,786,108
0.46%
are not EIBLLs, that is, children for
whom an environmental investigation
and possible (i.e., if hazards are found)
hazard control of their housing unit and
common area servicing it would be
newly required under the proposed rule.
• Regarding other units to have lead
hazard control work conducted, for FY
2015, there would be an estimated 8,014
units of public housing, 3,783 units of
HUD project-based rental assisted
housing, 3,383 units of tenant-based
rental assisted housing, and 112 units of
USDA project-based rental assisted
housing.
• The conservative (i.e., intentionally
high, in this instance) assumption about
the properties in which these children
reside is that each of them is a different
property (vs. there being more than one
such child in a property); a similarly
conservative assumption about the
private entities (i.e., the ones that lease
the project-based and the tenant-based
assisted units to the families of these
children) is that all of them are small
entities and all have just one such child
(vs. an entity having more than one
property with such a child). The
economic analysis used the FY 2017
Congressional Justifications of the
number of housing units assisted by the
several programs: 1,100,000 public
housing units, 1,200,000 HUD projectbased units, 2,200,000 tenant-based
units, and 286,108 USDA project-based
units. Regarding units other than the
index units, a maximum of
approximately 0.73 percent of other
public housing units, 0.32 percent of
other HUD project-based units, 0.13
percent of other tenant-based units, and
0.10 percent of USDA project-based
units (overall, 0.31 percent of units in
these assistance programs) would be
required to undertake a risk assessment
and, possibly, based on the risk
assessment, lead hazard control.
Environmental Impact
A Finding of No Significant Impact
with respect to the environment has
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USDA
Projectbased
All
assistance
types
been made in accordance with HUD
regulations at 24 CFR part 50, which
implement section 102(2)(C) of the
National Environmental Policy Act of
1969 (42 U.S.C. 4332(2)(C)). The
Finding of No Significant Impact is
available for public inspection
electronically at Federal eRulemaking
Portal at https://www.regulations.gov
under the title and docket number of
this rule.
Executive Order 13132, Federalism
Executive Order 13132 (entitled
‘‘Federalism’’) prohibits an agency from
publishing any rule that has federalism
implications if the rule either imposes
substantial direct compliance costs on
State and local governments or is not
required by statute, or the rule preempts
State law, unless the agency meets the
consultation and funding requirements
of section 6 of the Executive Order. This
rule will not have federalism
implications and would not impose
substantial direct compliance costs on
State and local governments or preempt
State law within the meaning of the
Executive Order.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (2 U.S.C. 1531–
1538) (UMRA) establishes requirements
for federal agencies to assess the effects
of their regulatory actions on State,
local, and tribal governments, and on
the private sector. This rule does not
impose any federal mandates on any
State, local, or tribal governments, or on
the private sector, within the meaning of
UMRA.
List of Subjects in 24 CFR Part 35
Grant programs—housing and
community development, Lead
poisoning, Mortgage insurance, Rent
subsidies, Reporting and recordkeeping
requirements.
Accordingly, for the reasons stated in
the preamble, HUD amends 24 CFR part
35 to read as follows:
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PART 35—LEAD-BASED PAINT
POISONING PREVENTION IN CERTAIN
RESIDENTIAL STRUCTURES
1. The authority citation for 24 CFR
part 35 continues to read as follows:
■
Authority: 42 U.S.C. 3535(d), 4821, and
4851.
2. In § 35.100, add, in alphabetical
order the definitions of ‘‘Elevated blood
lead level’’, ‘‘Environmental
investigations’’, revise the definitions of
‘‘Evaluation’’ and ‘‘Expected to reside’’
and delete the definition of
‘‘Environmental intervention blood lead
level’’, to read as follows:
■
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§ 35.110
Definitions.
Elevated blood lead level means a
confirmed concentration of lead in
whole blood of a child under age 6
equal to or greater than the
concentration in the most recent
guidance published by the U.S.
Department of Health and Human
Services (HHS) on recommending that
an environmental intervention be
conducted. (When HHS changes the
value, HUD will publish a notice in the
Federal Register, with the opportunity
for public comment, on its intent to
apply the changed value to this part,
and, after considering comments,
publish a notice on its applying the
changed value to this part.)
*
*
*
*
*
Environmental investigation means
the process of determining the source of
lead exposure for a child under age 6
with an elevated blood lead level,
consisting of administration of a
questionnaire, comprehensive
environmental sampling, case
management, and other measures, in
accordance with chapter 16 of the HUD
Guidelines for the Evaluation and
Control of Lead-Based Paint Hazards in
Housing (‘‘Guidelines’’).
*
*
*
*
*
Evaluation means a risk assessment, a
lead hazard screen, a lead-based paint
inspection, paint testing, or a
combination of these to determine the
presence of lead-based paint hazards or
lead-based paint, or an environmental
investigation.
Expected to reside means there is
actual knowledge that a child will
reside in a dwelling unit reserved or
designated exclusively for the elderly or
reserved or designated exclusively for
persons with disabilities. If a resident
woman is known to be pregnant, there
is actual knowledge that a child will
reside in the dwelling unit.
*
*
*
*
*
■ 3. Amend § 35.125 by adding
paragraph (c)(4)(iii) to read as follows:
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§ 35.125 Notice of evaluation and hazard
reduction activities.
*
*
*
*
*
(c) * * *
(4) * * *
(iii) However, for the protection of the
privacy of the child and the child’s
family or guardians, no notice of
environmental investigation shall be
posted to any centrally located common
area.
§ 35.165 Prior evaluation or hazard
reduction.
4. In § 35.165 amend paragraph (b)(4)
by removing the term ‘‘environmental
intervention blood level’’ wherever it
appears and adding its place the term
‘‘elevated blood lead level’’.
■ 5. Revise § 35.325 to read as follows:
■
§ 35.325
level.
Child with an elevated blood lead
(a) If a child less than 6 years of age
living in a federally assisted dwelling
unit has an elevated blood lead level,
the owner shall immediately conduct an
environmental investigation. Interim
controls of identified lead-based paint
hazards shall be conducted in
accordance with § 35.1330.
(b) Other assisted dwelling units in
the property. If the environmental
investigation conducted under
paragraph (a) of this section identifies
lead-based paint hazards, the owner
shall conduct a risk assessment for other
assisted dwelling units covered by this
subpart in which a child under age 6
resides or is expected to reside on the
date interim controls are complete, and
for the common areas serving those
units. The risk assessments would be
conducted within 30 calendar days after
receipt of the environmental
investigation report on the index unit if
there are 20 or fewer such units, or 60
calendar days for risk assessments if
there are more than 20 such units. If the
risk assessment identifies lead-based
paint hazards, the owner shall control
the hazards in those units and common
areas within 30 calendar days, or within
90 calendar days if more than 20 units
have lead-based paint hazards such that
the control work would disturb painted
surfaces that total more than the de
minimis threshold of § 35.1350(d). The
requirements for other assisted dwelling
units covered by this subpart do not
apply if:
(1) The owner conducted an
environmental investigation and
conducted interim controls of identified
lead-based paint hazards between the
date the child’s blood was last sampled
and the date the owner received the
notification of the elevated blood lead
level; or
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(2) The owner provides the Federal
agency documentation of compliance
with evaluation, notification, lead
disclosure, ongoing lead-based paint
maintenance, and lead-based paint
management requirements under this
part throughout the 12 months
preceding the date the owner received
the environmental investigation report.
(c) Interim controls are complete
when clearance is achieved in
accordance with § 35.1340.
(d) The Federal agency shall establish
a timetable for completing
environmental investigations and
hazard reduction when a child
identified as having an elevated blood
lead level is identified.
§ 35.715 Multifamily properties receiving
more than $5,000 per unit.
6. Amend § 35.715 by:
a. Redesignating paragraph (d)(4) as
paragraph (e); and
■ b. Removing the term ‘‘environmental
intervention blood level’’ and adding in
its place ‘‘elevated blood lead level’’.
■
■
§ 35.720 Multifamily properties receiving
up to $5,000 per unit, and single family
properties.
7. In § 35.720 amend paragraph (c) by
removing the term ‘‘environmental
intervention blood level’’ wherever it
appears and adding in its place
‘‘elevated blood lead level’’.
■ 8. Revise § 35.730 to read as follows:
■
§ 35.730
level.
Child with an elevated blood lead
(a) Environmental investigation.
Within 15 calendar days after being
notified by a public health department
or other medical health care provider
that a child of less than 6 years of age
living in a dwelling unit to which this
subpart applies has been identified as
having an elevated blood lead level, the
owner shall complete an environmental
investigation of the dwelling unit in
which the child lived at the time the
blood was last sampled and of common
areas servicing the dwelling unit. The
requirements of this paragraph apply
regardless of whether the child is or is
not still living in the unit when the
owner receives the notification of the
elevated blood lead level. The
requirements of this paragraph shall not
apply if the owner conducted an
environmental investigation of the unit
and common areas servicing the unit
between the date the child’s blood was
last sampled and the date when the
owner received the notification of the
elevated blood lead level. If the owner
conducted a risk assessment of the unit
and common areas servicing the unit
during that period, the owner need not
conduct another risk assessment there
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but shall conduct the elements of an
environmental investigation not already
conducted during the risk assessment. If
a public health department has already
conducted an evaluation of the dwelling
unit, the requirements of this paragraph
(a) of this section shall not apply.
(b) Verification. After receiving
information from a person who is not a
medical health care provider that a
child of less than 6 years of age living
in a dwelling unit covered by this
subpart may have an elevated blood
lead level, the owner shall immediately
verify the information with the public
health department or other medical
health care provider. If the public health
department or provider denies the
request, such as because it does not
have the capacity to verify that
information, the owner shall send
documentation of the denial to the HUD
rental assistance program manager, who
shall make an effort to verify the
information. If the public health
department or provider verifies that the
child has an elevated blood lead level,
such verification shall constitute
notification, and the owner shall take
the action required in paragraphs (a)
and (c) of this section.
(c) Hazard reduction. Within 30
calendar days after receiving the report
of the environmental investigation
conducted pursuant to paragraph (a) of
this section or the evaluation from the
public health department, the owner
shall complete the reduction of
identified lead-based paint hazards in
accordance with § 35.1325 or § 35.1330.
Hazard reduction is considered
complete when clearance is achieved in
accordance with § 35.1340 and the
clearance report states that all leadbased paint hazards identified in the
environmental investigation have been
treated with interim controls or
abatement or the public health
department certifies that the lead-based
paint hazard reduction is complete. The
requirements of this paragraph do not
apply if the owner, between the date the
child’s blood was last sampled and the
date the owner received the notification
of the elevated blood lead level, already
conducted an environmental
investigation of the unit and common
areas servicing the unit and completed
reduction of identified lead-based paint
hazards. If the owner conducted a risk
assessment of the unit and common
areas servicing the unit during that
period, the owner is not required to
conduct another risk assessment there
but shall conduct the elements of an
environmental investigation n not
already conducted during the risk
assessment.
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(d) If an environmental investigation,
evaluation or hazard reduction is
undertaken, each owner shall provide
notice to occupants in accordance with
§ 35.125.
(e) Reporting requirement. (1) The
owner shall report the name and
address of a child identified as having
an elevated blood lead level to the
public health department within 5
business days of being so notified by
any other medical health care
professional.
(2) The owner shall also report each
confirmed case of a child with an
elevated blood lead level to the HUD
field office and HUD Office of Lead
Hazard Control and Healthy Homes
within 5 business days of being so
notified.
(3) The owner shall provide to the
HUD field office documentation that the
designated party has conducted the
activities of paragraphs (a) through (d)
of this section, within 10 business days
of the deadline for each activity.
(f) Other assisted dwelling units in the
property. (1) If the environmental
investigation conducted pursuant to
paragraph (a) of this section identifies
lead-based paint hazards, the owner
shall, for other assisted dwelling units
covered by this part in which a child
under age 6 resides or is expected to
reside on the date hazard reduction
under paragraph (c) of this section is
complete, and for the common areas
servicing those units, conduct a risk
assessment if the unit investigated was
covered by § 35.715, within 30 calendar
days after receipt of the environmental
investigation report if there are 20 or
fewer such other units, or 60 calendar
days if there are more than 20 such
other units; or conduct a visual
assessment if the unit investigated was
covered by § 35.720, within 30 calendar
days of receipt of the environmental
investigation report.
(2) Control measures. (i) If the risk
assessment conducted under paragraph
(f)(1) of this section identifies leadbased paint hazards, the owner shall
complete the reduction of identified
lead-based paint hazards in accordance
with § 35.1325 or § 35.1330 in those
units and common areas within 30
calendar days, or within 90 calendar
days if more than 20 units have leadbased paint hazards such that the
control work would disturb painted
surfaces that total more than the de
minimis threshold of § 35.1350(d).
(ii) If the visual assessment conducted
under paragraph (f)(1) of this section
identifies deteriorated paint, the owner
shall stabilize the paint in those units
and common areas within 30 calendar
days, or within 90 calendar days if more
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60325
than 20 units have lead-based paint
hazards such that the control work
would disturb painted surfaces that total
more than the de minimis threshold of
§ 35.1350(d).
(3) The owner shall provide to the
HUD field office documentation that the
designated party has conducted the
activities of paragraph (f)(1) and (f)(2) of
this section, within 10 business days of
the deadline for each activity.
(4) The requirements of this paragraph
(f) do not apply if the property meets
any of these conditions:
(i) If the property is covered by
§ 35.715, the owner conducted a risk
assessment and conducted interim
controls of identified lead-based paint
hazards in accordance with § 35.175(b)
between the date the child’s blood was
last sampled and the date the owner
received the notification of the elevated
blood lead level;
(ii) If the property is covered by
§ 35.720, the owner conducted a visual
assessment and stabilized deteriorated
paint (unless it was determined not to
be lead-based paint) identified in
accordance with § 35.720(b)(2) in the
other assisted dwelling units and the
common areas serving those units,
between the date the child’s blood was
last sampled and the date the owner
received the notification of the elevated
blood lead level; or
(iii) The owner has documentation of
compliance with evaluation,
notification, lead disclosure, ongoing
lead-based paint maintenance, and leadbased paint management requirements
under this part throughout the 12
months preceding the date the owner
received the environmental
investigation report pursuant to
paragraph (a) of this section; and
(iv) The owner provides to the HUD
field office documentation that it has
conducted the activities of paragraphs
(f)(4)(i) through (iii) of this section,
within 10 business days of the deadline
for each activity.
(g) HUD encourages the owner to
evaluate for sources of lead exposure in
units other than those covered by this
subpart, and to control such sources.
■ 9. Revise § 35.830 to read as follows:
§ 35.830
level.
Child with an elevated blood lead
(a) Environmental investigation.
Within 15 calendar days after being
notified by a public health department
or other medical health care provider
that a child of less than 6 years of age
living in a dwelling unit owned by HUD
(or where HUD is mortgagee-inpossession) has been identified as
having an elevated blood lead level,
HUD shall complete an environmental
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investigation of the dwelling unit in
which the child lived at the time the
blood was last sampled and of common
areas servicing the dwelling unit. The
requirements of this paragraph apply
regardless of whether the child is or is
not still living in the unit when HUD
receives the notification of the elevated
blood lead level. The requirements of
this paragraph shall not apply if HUD
conducted an environmental
investigation of the unit and common
areas servicing the unit between the
date the child’s blood was last sampled
and the date when HUD received the
notification of the elevated blood lead
level. If HUD conducted a risk
assessment of the unit and common
areas servicing the unit during that
period, HUD is not required to conduct
another risk assessment there but it
shall conduct the elements of an
environmental investigation not already
conducted during the risk assessment. If
a public health department has already
conducted an evaluation of the dwelling
unit, the requirements of this paragraph
shall not apply.
(b) Verification. After receiving
information from a person who is not a
medical health care provider that a
child of less than 6 years of age living
in a dwelling unit covered by this
subpart may have an elevated blood
lead level, HUD shall immediately
verify the information with the public
health department or other medical
health care provider. If the public health
department or provider denies the
request, such as because it does not
have the capacity to verify that
information, the HUD Realty Specialist
assigned to that property shall send
documentation of the denial to the HUD
Office of Lead Hazard Control and
Healthy Homes, which shall make an
effort to verify the information. If the
public health department or provider
verifies that the child has an
environmental intervention blood lead
level, such verification shall constitute
notification, and HUD shall take the
action required in paragraphs (a) and (c)
of this section.
(c) Hazard reduction. Within 30
calendar days after receiving the report
of the environmental investigation
conducted pursuant to paragraph (a) of
this section or the evaluation from the
public health department, HUD shall
complete the reduction of identified
lead-based paint hazards in accordance
with § 35.1325 or § 35.1330. Hazard
reduction is considered complete when
clearance is achieved in accordance
with § 35.1340 and the clearance report
states that all lead-based paint hazards
identified in the environmental
investigation have been treated with
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interim controls or abatement or the
public health department certifies that
the lead-based paint hazard reduction is
complete. The requirements of this
paragraph do not apply if HUD, between
the date the child’s blood was last
sampled and the date HUD received the
notification of the elevated blood lead
level, already conducted an
environmental investigation of the unit
and common areas servicing the unit
and completed reduction of identified
lead-based paint hazards. If HUD
conducted a risk assessment of the unit
and common areas servicing the unit
during that period, it is not required to
conduct another risk assessment there
but it shall conduct the elements of an
environmental investigation not already
conducted during the risk assessment.
(d) Notice. If evaluation or hazard
reduction is undertaken, each owner
shall provide a notice to occupants in
accordance with § 35.125.
(e) Reporting requirement. (1) HUD
shall report the name and address of a
child identified as having an elevated
blood lead level to the public health
department within 5 business days of
being so notified by any other medical
health care professional.
(2) HUD shall also report each
confirmed case of a child with an
elevated blood lead level to the HUD
Office of Lead Hazard Control and
Healthy Homes within 5 business days
of being so notified.
(3) HUD shall provide to the HUD
Office of Lead Hazard Control and
Healthy Homes documentation that it
has conducted the activities of
paragraphs (a) through (d) of this
section, within 10 business days of the
deadline for each activity.
(f) Other assisted dwelling units in the
property. (1) If the environmental
investigation conducted pursuant to
paragraph (a) of this section identifies
lead-based paint hazards, HUD shall, for
other assisted dwelling units covered by
this part in which a child under age 6
resides or is expected to reside on the
date hazard reduction under paragraph
(c) of this section, and the common
areas servicing those units, is complete,
conduct a risk assessment in accordance
with § 35.815 within 30 calendar days
after receipt of the environmental
investigation report if there are 20 or
fewer such other units, or 60 calendar
days if there are more than 20 such
other units.
(2) If the risk assessment conducted
under paragraph (f)(1) of this section
identifies lead-based paint hazards,
HUD shall complete the reduction of
identified lead-based paint hazards in
accordance with § 35.1325 or § 35.1330
in those units and common areas within
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30 calendar days, or within 90 calendar
days if more than 20 units have leadbased paint hazards such that the
control work would disturb painted
surfaces that total more than the de
minimis threshold of § 35.1350(d).
(3) The requirements of this paragraph
(f) do not apply if HUD, between the
date the child’s blood was last sampled
and the date HUD received the
notification of the elevated blood lead
level, conducted a risk assessment in
the other assisted dwelling units and the
common areas serving those units, and
conducted interim controls of identified
lead-based paint hazards in accordance
with § 35.820.
(4) The requirements of this section
do not apply if HUD has documentation
of compliance with evaluation,
notification, lead disclosure, ongoing
lead-based paint maintenance, and leadbased paint management requirements
under this part throughout the 12
months preceding the date HUD
received the environmental
investigation report pursuant to
paragraph (a) of this section.
(5) HUD shall provide to the HUD
Office of Lead Hazard Control and
Healthy Homes documentation that it
has conducted the activities of
paragraph (f)(1) through (3) of this
section, or that it has complied with the
requirements in paragraph (f)(4) of this
section, within 10 business days of the
deadline for each activity.
(g) Closing. If the closing of a sale is
scheduled during the period when HUD
is responding to a case of a child with
an elevated blood lead level, HUD may
arrange for the completion of the
procedures required by paragraphs (a)
through (d) of this section by the
purchaser within a reasonable period of
time.
(h) Extensions. The Assistant
Secretary for Housing-Federal Housing
Commissioner or designee may consider
and approve a request for an extension
of deadlines established by this section
for lead-based paint inspection, risk
assessment, environmental
investigation, hazard reduction, and
reporting. Such a request may be
considered, however, only during the
first six months during which HUD is
owner or mortgagee-in-possession of a
multifamily property.
■ 10. Revise § 35.1130 to read as
follows:
§ 35.1130 Child with an elevated blood
lead level.
(a) Environmental investigation.
Within 15 calendar days after being
notified by a public health department
or other medical health care provider
that a child of less than 6 years of age
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living in a dwelling unit to which this
subpart applies has been identified as
having an elevated blood lead level, the
PHA shall complete an environmental
investigation of the dwelling unit in
which the child lived at the time the
blood was last sampled and of common
areas servicing the dwelling unit. The
environmental investigation is
considered complete when the PHA
receives the environmental investigation
report. The requirements of this
paragraph apply regardless of whether
the child is or is not still living in the
unit when the PHA receives the
notification of the elevated blood lead
level. The requirements of this
paragraph shall not apply if the PHA
conducted an environmental
investigation of the unit and common
areas servicing the unit between the
date the child’s blood was last sampled
and the date when the PHA received the
notification of the elevated blood lead
level. If the PHA conducted a risk
assessment of the unit and common
areas servicing the unit during that
period, the PHA need not conduct
another risk assessment there but shall
conduct the elements of an
environmental investigation not already
conducted during the risk assessment. If
a public health department has already
conducted an evaluation of the dwelling
unit, the requirements of this paragraph
shall not apply.
(b) Verification. After receiving
information from a person who is not a
medical health care provider that a
child of less than 6 years of age living
in a dwelling unit covered by this
subpart may have an elevated blood
lead level, the PHA shall immediately
verify the information with the public
health department or other medical
health care provider. If that department
or provider denies the request, such as
because it does not have the capacity to
verify that information, the PHA shall
send documentation of the denial to its
HUD field office, who shall make an
effort to verify the information. If that
department or provider verifies that the
child has an elevated blood lead level,
such verification shall constitute
notification, and the housing agency
shall take the action required in
paragraphs (a) and (c) of this section.
(c) Hazard reduction. Within 30
calendar days after receiving the report
of the environmental investigation
conducted pursuant to paragraph (a) of
this section or the evaluation from the
public health department, the PHA shall
complete the reduction of identified
lead-based paint hazards in accordance
with § 35.1325 or § 35.1330. Hazard
reduction is considered complete when
clearance is achieved in accordance
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with § 35.1340 and the clearance report
states that all lead-based paint hazards
identified in the environmental
investigation have been treated with
interim controls or abatement or the
local or State health department certifies
that the lead-based paint hazard
reduction is complete. The requirements
of this paragraph do not apply if the
PHA, between the date the child’s blood
was last sampled and the date the PHA
received the notification of the elevated
blood lead level, already conducted an
environmental investigation of the unit
and common areas servicing the unit
and completed reduction of identified
lead-based paint hazards. If the PHA
conducted a risk assessment of the unit
and common areas servicing the unit
during that period, it is not required to
conduct another risk assessment there
but it shall conduct the elements of an
environmental investigation not already
conducted during the risk assessment. If
the PHA does not complete the hazard
reduction required by this section, the
dwelling unit is in violation of the
standards of 24 CFR 965.601, which
incorporates the uniform physical
condition standards of § 5.703(f),
including that it be free of lead-based
paint hazards.
(d) Notice of evaluation and hazard
reduction. The PHA shall notify
building residents of any evaluation or
hazard reduction activities in
accordance with § 35.125.
(e) Reporting requirement. (1) The
PHA shall report the name and address
of a child identified as having an
elevated blood lead level to the public
health department within 5 business
days of being so notified by any other
medical health care professional.
(2) The PHA shall report each
confirmed case of a child with an
elevated blood lead level to the HUD
field office and the HUD Office of Lead
Hazard Control and Healthy Homes
within 5 business days of being so
notified.
(3) The PHA shall provide to the HUD
field office documentation that it has
conducted the activities of paragraphs
(a) through (d) of this section, within 10
business days of the deadline for each
activity.
(f) Other units in the property. (1) If
the environmental investigation
conducted pursuant to paragraph (a) of
this section identifies lead-based paint
hazards, the PHA shall conduct a risk
assessment of other units of the building
covered by this subpart within 30
calendar days after receipt of the
environmental investigation report if
there are 20 or fewer such other units,
or 60 calendar days if there are more
than 20 such other units, and shall
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complete the reduction of identified
lead-based paint hazards in accordance
with § 35.1325 or § 35.1330 within 30
calendar days, or within 90 calendar
days if more than 20 units have leadbased paint hazards such that the
control work would disturb painted
surfaces that total more than the de
minimis threshold of § 35.1350(d).
(2) If the environmental investigation
conducted pursuant to paragraph (a) of
this section identifies lead-based paint
hazards and previous evaluations of the
building conducted pursuant to
§ 35.1320 identified lead-based paint or
lead-based paint hazards, the PHA shall,
for other dwelling units in the property
in which a child under age 6 resides or
is expected to reside on the date hazard
reduction under paragraph (c) of this
section is complete, and the common
areas serving those units, conduct a risk
assessment within 30 calendar days
after receipt of the environmental
investigation report if there are 20 or
fewer such units, or 60 calendar days if
there are more such units.
(3) Control measures. If the risk
assessment conducted under paragraph
(f)(2) of this section identifies leadbased paint hazards, the PHA shall
control the hazards in those units and
common areas within 30 calendar days,
or within 90 calendar days if more than
20 units have lead-based paint hazards
such that the control work would
disturb painted surfaces that total more
than the de minimis threshold of
§ 35.1350(d).
(4) The PHA shall provide to the HUD
field office documentation that it has
conducted the activities of paragraphs
(f)(1) through (3) of this section, within
10 business days of the deadline for
each activity.
(5) The requirements of this paragraph
(f) of this section do not apply if the
PHA, between the date the child’s blood
was last sampled and the date the PHA
received the notification of the elevated
blood lead level, conducted a risk
assessment of the other assisted
dwelling units and the common areas
serving those units, and conducted
interim controls of identified hazards in
accordance with § 35.1120(b); or if the
PHA has documentation of compliance
with evaluation, notification, lead
disclosure, ongoing lead-based paint
maintenance, and lead-based paint
management requirements under this
part throughout the 12 months
preceding the date the PHA received the
environmental investigation report
pursuant to paragraph (a) of this section;
and, in either case, the PHA provided
the HUD field office, within 10 business
days after receiving the notification of
the elevated blood lead level,
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documentation that it has conducted the
activities described in this paragraph
(f)(5) of this section.
(g) HUD encourages the PHA to
evaluate for sources of lead exposure in
units other than those covered by this
subpart, and to control such sources.
§ 35.1135
Eligible costs.
11. Amend § 35.1135(d) by removing
the term ‘‘environmental intervention
blood level’’ and adding in its place the
term ‘‘elevated blood lead level’’.
■ 12. Revise § 35.1215(b) as follows:
■
§ 35.1215 Activities at initial and periodic
inspection.
*
*
*
*
*
(b) * * * For the unit subsequently to
come under a HAP contract with the
housing agency for occupancy by a
family with a child under age 6, paint
stabilization must be completed,
including clearance being achieved in
accordance with Sec. 35.1340.
*
*
*
*
*
■ 13. Revise § 35.1225 to read as
follows:
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
§ 35.1225 Child with an elevated blood
lead level.
(a) Within 15 calendar days after
being notified by a public health
department or other medical health care
provider that a child of less than 6 years
of age living in a dwelling unit to which
this subpart applies has been identified
as having an elevated blood lead level,
the designated party shall complete an
environmental investigation of the
dwelling unit in which the child lived
at the time the blood was last sampled
and of common areas servicing the
dwelling unit. When the environmental
investigation is complete, the
designated party shall immediately
provide the report of the environmental
investigation to the owner of the
dwelling unit. If the child identified as
having an elevated blood lead level is
no longer living in the unit when the
designated party receives notification
from the public health department or
other medical health care provider, but
another household receiving tenantbased rental assistance is living in the
unit or is planning to live there, the
requirements of this section apply just
as they do if the child still lives in the
unit. If a public health department has
already conducted an evaluation of the
dwelling unit, or the designated party
conducted an environmental
investigation of the unit and common
areas servicing the unit between the
date the child’s blood was last sampled
and the date when the designated party
received the notification of the elevated
blood lead level, the requirements of
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16:57 Aug 31, 2016
Jkt 238001
this paragraph shall not apply. If the
designated party or the owner
conducted a risk assessment of the unit
and common areas servicing the unit
during that period, the designated party
need not conduct another risk
assessment there but shall conduct the
elements of an environmental
investigation not already conducted
during the risk assessment.
(b) Verification. After receiving
information from a person who is not a
medical health care provider that a
child of less than 6 years of age living
in a dwelling unit covered by this
subpart may have an elevated blood
lead level, the designated party shall
immediately verify the information with
the public health department or other
medical health care provider. If the
public health department or provider
denies the request, such as because it
does not have the capacity to verify that
information, the designated party shall
send documentation of the denial to the
HUD rental assistance program manager,
who shall make an effort to verify the
information. If that department or
provider verifies that the child has an
elevated blood lead level, such
verification shall constitute notification,
and the designated party shall take the
action required in paragraphs (a) and (c)
of this section.
(c) Hazard reduction. Within 30
calendar days after receiving the report
of the environmental investigation from
the designated party or the evaluation
from the public health department, the
owner shall complete the reduction of
identified lead-based paint hazards in
accordance with § 35.1325 or § 35.1330.
Hazard reduction is considered
complete when clearance is achieved in
accordance with § 35.1340 and the
clearance report states that all leadbased paint hazards identified in the
environmental investigation have been
treated with interim controls or
abatement or the public health
department certifies that the lead-based
paint hazard reduction is complete. The
requirements of this paragraph do not
apply if the designated party or the
owner, between the date the child’s
blood was last sampled and the date the
designated party received the
notification of the elevated blood lead
level, already conducted an
environmental investigation of the unit
and common areas servicing the unit
and the owner completed reduction of
identified lead-based paint hazards. If
the owner does not complete the hazard
reduction required by this section, the
dwelling unit is in violation of the
standards of 24 CFR 982.401.
(d) Notice of evaluation and hazard
reduction. The owner shall notify
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Frm 00032
Fmt 4702
Sfmt 4702
building residents of any evaluation or
hazard reduction activities in
accordance with § 35.125.
(e) Reporting requirement. (1) The
owner shall report the name and
address of a child identified as having
an elevated blood lead level to the
public health department within 5
business days of being so notified by
any other medical health care
professional.
(2) The owner shall also report each
confirmed case of a child with an
elevated blood lead level to the HUD
field office and the HUD Office of Lead
Hazard Control and Healthy Homes
within 5 business days of being so
notified.
(3) The owner shall provide to the
HUD field office documentation that it
has conducted the activities of
paragraphs (a) through (d) of this
section, within 10 business days of the
deadline for each activity.
(f) Other assisted dwelling units in the
property. (1) If the environmental
investigation conducted pursuant to
paragraph (a) of this section identifies
lead-based paint hazards, the designated
party or the owner shall, for other
assisted dwelling units covered by this
part in which a child under age 6
resides or is expected to reside on the
date hazard reduction under paragraph
(c) of this section is complete, and the
common areas serving those units,
conduct a visual assessment in
accordance with the procedures of
§ 35.1215(a), within 30 calendar days
after receipt of the environmental
investigation report if there are 20 or
fewer such units, or 60 calendar days if
there are more such units.
(2) If the visual assessment conducted
under paragraph (f)(1) of this section
identifies deteriorated paint, the owner
shall stabilize the paint within 30
calendar days, or within 90 calendar
days if more than 20 units have
deteriorated paint such that the control
work would disturb painted surfaces
that total more than the de minimis
threshold of § 35.1350(d).
(3) The requirements of this paragraph
(f) of this section do not apply if the
designated party or the owner, between
the date the child’s blood was last
sampled and the date the owner
received the notification of the elevated
blood lead level, conducted a visual
assessment or risk assessment in those
other assisted dwelling units and the
common areas serving those units, and
the owner stabilized deteriorated paint
(unless it was determined not to be leadbased paint) identified; or if the owner
has documentation of compliance with
evaluation, notification, lead disclosure,
ongoing lead-based paint maintenance,
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and lead-based paint management
requirements under this part throughout
the 12 months preceding the date the
owner received the environmental
investigation report pursuant to
paragraph (a) of this section; and, in
either case, the owner provided the
HUD field office, within 10 business
days after receiving the notification of
the elevated blood lead level,
documentation that it has conducted the
activities described in this paragraph
(f)(4) of this section.
(g) HUD encourages the designated
party or the owner to evaluate for
sources of lead exposure in units other
than those covered by this subpart, and
to control such sources.
(h) Data collection and record keeping
responsibilities. At least quarterly, the
designated party shall attempt to obtain
from the public health department(s)
with area(s) of jurisdiction similar to
that of the designated party the names
and/or addresses of children of less than
6 years of age with an identified
elevated blood lead level. At least
quarterly, the designated party shall also
report an updated list of the addresses
of units receiving assistance under a
tenant-based rental assistance program
to the same public health department(s),
except that the report(s) to the public
health department(s) is not required if
the health department states that it does
not wish to receive such report. If it
obtains names and addresses of elevated
blood lead level children from the
public health department(s), the
designated party shall match
information on cases of elevated blood
lead levels with the names and
addresses of families receiving tenantbased rental assistance, unless the
public health department performs such
a matching procedure. If a match occurs,
the designated party shall carry out the
requirements of this section.
Dated: August 26, 2016.
Michelle Miller,
Deputy Director, Office of Healthy Homes and
Lead Hazard Control.
[FR Doc. 2016–20955 Filed 8–31–16; 8:45 am]
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
BILLING CODE 4210–67–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R01–OAR–2015–0471; A–1–FRL–
9943–04–Region 1]
Air Plan Approval; Connecticut; Open
Burning and Portable Fuel Containers
Environmental Protection
Agency (EPA).
AGENCY:
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16:57 Aug 31, 2016
Jkt 238001
ACTION:
Proposed rule.
The Environmental Protection
Agency (EPA) is proposing to approve a
State Implementation Plan (SIP)
revision submitted by the State of
Connecticut on November 19, 2012. We
propose to approve Connecticut’s
request to remove two regulations from
its SIP that regulate ‘‘open burning’’ and
‘‘portable fuel container spillage
control.’’ In place of the open burning
regulation, we propose to approve into
the Connecticut SIP a Connecticut
statute that controls open burning. We
also propose to approve a definition of
‘‘brush,’’ which was included in a
December 15, 2015 SIP submittal by
Connecticut to meet infrastructure
requirements of the Clean Air Act for
the 2012 fine particle (PM2.5) National
Ambient Air Quality Standards
(NAAQS). The requirements in the
Connecticut portable fuel container
regulation have been superseded by
federal portable fuel container
requirements. This action is being taken
in accordance with the Clean Air Act.
DATES: Written comments must be
received on or before October 3, 2016.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R01–
OAR–2015–0471 by one of the following
methods:
1. https://www.regulations.gov: Follow
the online instructions for submitting
comments.
2. Email: arnold.anne@epa.gov.
3. Mail: ‘‘EPA–R01–OAR–2015–
0471,’’ Anne Arnold, U.S.
Environmental Protection Agency, EPA
New England Regional Office, 5 Post
Office Square—Suite 100, (Mail code
OEP05–2), Boston, MA 02109–3912.
4. Hand Delivery or Courier. Deliver
your comments to: Anne Arnold,
Manager, Air Quality Planning Unit,
Office of Ecosystem Protection, U.S.
Environmental Protection Agency, EPA
New England Regional Office, 5 Post
Office Square—Suite 100, (Mail code
OEP05–2), Boston, MA 02109–3912.
Such deliveries are only accepted
during the Regional Office’s normal
hours of operation. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 a.m. to
4:30 p.m., excluding legal holidays.
Please see the direct final rule which
is located in the Rules Section of this
Federal Register for detailed
instructions on how to submit
comments.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Alison C. Simcox, Air Quality Planning
Unit, U.S. Environmental Protection
Agency, EPA New England Regional
Office, 5 Post Office Square—Suite 100,
PO 00000
Frm 00033
Fmt 4702
Sfmt 4702
60329
(Mail code OEP05–2), Boston, MA
02109–3912, telephone number (617)
918–1684, fax number (617) 918–0684,
email simcox.alison@epa.gov.
SUPPLEMENTARY INFORMATION: In the
Final Rules Section of this Federal
Register, EPA is approving the State’s
SIP submittal as a direct final rule
without prior proposal because the
Agency views this as a noncontroversial
submittal and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the direct final
rule. If no adverse comments are
received in response to this action rule,
no further activity is contemplated. If
EPA receives adverse comments, the
direct final rule will be withdrawn and
all public comments received will be
addressed in a subsequent final rule
based on this proposed rule. EPA will
not institute a second comment period.
Any parties interested in commenting
on this action should do so at this time.
Please note that if EPA receives adverse
comment on an amendment, paragraph,
or section of this rule and if that
provision may be severed from the
remainder of the rule, EPA may adopt
as final those provisions of the rule that
are not the subject of an adverse
comment.
For additional information, see the
direct final rule which is located in the
Rules Section of this Federal Register.
Dated: February 4, 2016.
H. Curtis Spalding,
Regional Administrator, EPA New England.
[FR Doc. 2016–21011 Filed 8–31–16; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
42 CFR Part 88
[NIOSH Docket 094]
World Trade Center Health Program;
Petition 013—Autoimmune Disease;
Finding of Insufficient Evidence
Centers for Disease Control and
Prevention, HHS.
ACTION: Denial of petition for addition of
a health condition.
AGENCY:
On April 4, 2016, the
Administrator of the World Trade
Center (WTC) Health Program received
a petition (Petition 013) to add
‘‘relapsing remitting multiple sclerosis
(autoimmune)’’ to the List of WTCRelated Health Conditions (List). Upon
reviewing the information provided by
the petitioner, the Administrator has
determined that Petition 013 is not
substantially different from Petitions
SUMMARY:
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]]>Agencies
[Federal Register Volume 81, Number 170 (Thursday, September 1, 2016)]
[Proposed Rules]
[Pages 60304-60329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20955]
=======================================================================
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 35
[Docket No. FR-5816-P-01]
RIN 2501-AD77
Requirements for Notification, Evaluation and Reduction of Lead-
Based Paint Hazards in Federally Owned Residential Property and Housing
Receiving Federal Assistance; Response to Elevated Blood Lead Levels
AGENCY: Office of Lead Hazard Control and Healthy Homes, HUD.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would amend HUD's lead-based paint
regulations on reducing blood lead levels in children under age 6 who
reside in federally-owned or -assisted pre-1978 housing and formally
adopt the revised definition of ``elevated blood lead levels'' in
children under the age of 6 in accordance with guidance of the Centers
for Disease Control and Prevention (CDC), and establish more
comprehensive testing and evaluation procedures for the housing where
such children reside. In 2012, the CDC issued guidance revising its
definition of elevated blood lead level in children under age 6 to be a
blood lead level based on the distribution of blood lead levels in the
national population. Since CDC's revision of its definition, HUD has
applied the revised definition to funds awarded under its Lead-Based
Paint Hazard Control grant program and its Lead Hazard Reduction
Demonstration grant program, and has updated its Guidelines for the
Evaluation and Control of Lead-Based Paint Hazards in Housing to
reflect this definition. CDC is continuing to consider, with respect to
evolution of scientific and medical understanding, how best to identify
childhood blood lead levels for which environmental interventions are
recommended. Through this rule, HUD formally adopts through regulation
the CDC's approach to the definition of ``elevated blood lead levels''
in children under the age of 6 and addresses the additional elements of
the CDC guidance pertaining to assisted housing.
DATES: Comment Due Date: October 31, 2016.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Regulations Division, Office of General
Counsel, Department of Housing and Urban Development, 451 7th Street
SW., Room 10276, Washington, DC 20410-0500. Communications must refer
to the above docket number and title. There are two methods for
submitting public comments. All submissions must refer to the above
docket number and title.
1. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW., Room 10276,
Washington, DC 20410-0500.
2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
https://www.regulations.gov. HUD strongly encourages commenters to
submit comments electronically. Electronic submission of comments
allows the commenter maximum time to prepare and submit a comment,
ensures timely receipt by HUD, and enables HUD to make comments
immediately available to the public. Comments submitted electronically
through the https://www.regulations.gov Web site can be viewed by other
commenters and interested members of the public. Commenters should
follow the instructions provided on that site to submit comments
electronically.
Note: To receive consideration as public comments, comments must
be submitted through one of the two methods specified above. It is
not acceptable to submit comments by facsimile (fax). Again, all
submissions must refer to the docket number and title of the rule.
Public Inspection of Public Comments. All properly submitted
comments and communications submitted to HUD will be available for
public inspection and downloading at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Warren Friedman, Office of Lead Hazard
Control and Healthy Homes, Department of Housing and Urban Development,
451 7th Street SW., Room 8236, Washington, DC 20410-3000, telephone
number (202) 402-7698 or email your inquiry to
lead.regulations@hud.gov. For legal questions, contact John B. Shumway,
Office of General Counsel, Department of Housing and Urban Development,
451 7th Street, Room 9262, Washington, DC 20410-0500; telephone number
(202) 402-5190. The above telephone numbers are not toll-free numbers.
Hearing and speech-impaired persons may access the above telephone
numbers via TTY by calling the toll-free Federal Relay Service at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
A. HUD's Long-Term and Ongoing Efforts To Reduce Lead Poisoning in
Children
Childhood lead poisoning has long been recognized as causing
reduced intelligence, low attention span, reading and learning
disabilities, and has been linked to juvenile delinquency, behavioral
problems, and many other adverse health effects. Current reviews by the
U.S. Department of Health and Human Services (HHS), including by its
Agency for Toxic Substances and Disease Registry (ATSDR) and National
Institute of Environmental Health Sciences (NIEHS) and by the U.S.
Environmental Protection Agency (EPA) Office of Research and
Development have described these effects in detail.\1\ The removal of
lead-based gasoline and paint from commerce has drastically reduced the
number of children exposed to levels of lead associated with the most
significant among these problems. Data from CDC's National Center for
Health Statistics show that mean blood lead levels among children ages
1 to 5 dropped from 16.0 [mu]g/dL in 1976-1980 to 2.6 [mu]g/dL in 1991-
1994, to 0.97 [mu]g/dL in 2011-2012.\2\ However, national statistics
mask the fact that blood lead monitoring continues to find some
children exposed to elevated blood lead levels due to their specific
housing environment. As sources of lead paint
[[Page 60305]]
sources have decreased, focus has increased on other sources of
exposures, including legacy water pipes in homes and schools.
---------------------------------------------------------------------------
\1\ See the following: Agency for Toxic Substances and Disease
Registry. Toxicological profile for lead. Atlanta: U.S. Department
of Health and Human Services (HHS), August 2007. www.atsdr.cdc.gov/toxprofiles/tp13.pdf. HHS, National Institute of Environmental
Health Sciences, National Toxicology Program. NTP Monograph on
Health Effects of Low-Level Lead. NIH Publication No. 12-5996. June
13, 2012. https://ntp.niehs.nih.gov/pubhealth/hat/noms/lead/. Office of Research and Development. Integrated Science
Assessment for Lead. Research Triangle Park, NC. U.S. Environmental
Protection Agency (EPA), June 2013. https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=255721. (See esp. pp. lxxxvii-lxxxxviii, and
1-20--1-24. See also Memo Regarding a Study Assessed in the 2013 ISA
for Lead--Dated May 9, 2014. https://ofmpub.epa.gov/eims/eimscomm.getfile?p_download_id=518543.)
\2\ Porter, K. National Health and Nutrition Examination Survey.
2015 National Conference on Health Statistics, August 24, 2015,
www.cdc.gov/nchs/ppt/nchs2015/Porter_Monday_SalonE_A6.pdf. p. 48.
---------------------------------------------------------------------------
In 2014, the CDC noted that, ``Lead-based paint and lead
contaminated dust are the most hazardous sources of lead for U.S.
children,'' \3\ reaffirming their 2005 Statement on preventing lead
poisoning in young children that, ``lead-based paint is the most
important source of lead'' exposure for young children.\4\ Continued
progress in lead paint abatement and interim control over the last
decade, such as through HUD's lead hazard control grant programs
discussed below, and the lead hazard control work required of landlords
under settlements HUD has reached in enforcing the Lead Disclosure
Statute and that statute's Rule (42 U.S.C. 4852d; 24 CFR 35, subpart A)
has meant further significant decreases in lead exposure among
children.
---------------------------------------------------------------------------
\3\ Centers for Disease Control and Prevention (CDC). Lead.
Prevention Tips. June 19, 2014. Sec. 2, par. 1. www.cdc.gov/nceh/lead/tips.htm.
\4\ CDC. Preventing Lead Poisoning in Young Children. A
Statement by the Centers for Disease Control and Prevention. August
2005. p. 4. www.cdc.gov/nceh/lead/publications/PrevLeadPoisoning.pdf.
---------------------------------------------------------------------------
Even so, there are a considerable number of assisted housing units
that have lead-based paint in which children under age 6 reside. As
detailed in the regulatory impact assessment accompanying this notice,
there are about 4.3 million housing units in the assistance programs
covered by this rulemaking (1.1 million public housing, 1.2 million
project-based rental assistance, and 2.0 million tenant-based rental
assistance units), of which about 450,000 are estimated to have been
built before 1978 and have children under age 6 residing (about 110,
130, and 210 thousand units, respectively). Of those units, about
57,000 units are estimated to have lead-based paint hazards (about 14,
16, and 27 thousand, respectively).
Health concerns have also been documented for adults exposed to
high levels of lead from occupational exposures and to some extent from
hobbies and other product or environmental sources, such as what might
be associated with workers conducting lead hazard control activities;
see, e.g., the Occupational Safety and Health Administration's (OSHA's)
Lead standards, one for general industry and one for the construction
industry (29 CFR 1910.1025 and 1926.62, respectively); see OSHA's
Safety and Health Topics Web page on the health effects of high lead
exposure in exposed workers; \5\ the CDC/National Institute for
Occupational Safety and Health (NIOSH) guides on lead for public health
officials and researchers,\6\ and for workers; \7\ and the ATSDR
Toxicological Profile for lead and the EPA Integrated Science
Assessment for Lead cited above (fn. 1).\8\
---------------------------------------------------------------------------
\5\ OSHA Salt Lake Technical Center. Lead. Health Effects.
https://www.osha.gov/SLTC/lead/healtheffects.html.
\6\ NIOSH. LEAD. Information for Public Health Officials and
Researchers. www.cdc.gov/niosh/topics/lead/publichealth.html.
\7\ NIOSH. LEAD. Information for Workers. www.cdc.gov/niosh/topics/lead/health.html.
\8\ As discussed below, while the focus of HUD's existing Rule
(Lead Safe Housing Rule) (24 CFR 35, subparts B-R) proposed to be
amended by this rulemaking is the protection of the health of
children under age 6, the currently codified Rule also addresses
protection of all occupants in dwelling units covered by the Rule
(see, e.g., Sec. 35.1345), and workers conducting lead-related
activities in housing covered by the Rule (see, e.g., Sec. 35.145).
---------------------------------------------------------------------------
B. Authority for HUD's Lead-Based Paint Regulations
HUD's Lead-Based Paint regulations designed to reduce lead exposure
in federally-owned and federally-assisted housing (sometimes, for
brevity, referred to here as ``assisted housing''), referred to as the
Lead Safe Housing Rule (LSHR), are found in title 24 of the Code of
Federal Regulations (CFR) part 35, subparts B through R. The LSHR
implements the Residential Lead-Based Paint Hazard Reduction Act of
1992, which is Title X of the Housing and Community Development Act of
1992 (Pub. L. 102-550, approved October 28, 1992), specifically, the
LSHR implements sections 1012 and 1013 of Title X (42 U.S.C. 4822). One
of the purposes of the LSHR is to ensure, as far as practicable, that
federally-owned or federally-assisted housing that may have lead-based
paint, which is most housing constructed prior to 1978 (called ``target
housing'') \9\ does not have lead-based paint hazards.
---------------------------------------------------------------------------
\9\ HUD's regulations, at 24 CFR 35.110, based on the Title X
definition at 42 U.S.C. 4851b (27), define ``target housing'' as
``any housing constructed prior to 1978, except housing for the
elderly or persons with disabilities (unless a child of less than 6
years of age resides or is expected to reside in such housing for
the elderly or persons with disabilities) or any zero- bedroom
dwelling. In the case of jurisdictions which banned the sale or use
of lead-based paint prior to 1978, HUD may designate an earlier
date.'' (Note that HUD has not made any such designations.)
---------------------------------------------------------------------------
As reflected in the LSHR and consistent with Title X, HUD's primary
focus is on minimizing childhood lead exposures, rather than on waiting
until children have elevated blood lead levels (see section I.B, below)
to undertake actions to eliminate the lead-based paint hazards or the
lead-based paint. HUD's Office of Lead Hazard Control and Healthy
Homes' (OLHCHH's) ongoing efforts in lead poisoning prevention--i.e.,
acting before children are exposed to lead such that they develop an
elevated blood lead level--were recognized in the HUD's Healthy Homes
Strategic Plan.\10\ As noted in that document, HUD's OLHCHH has
administered a successful Lead Hazard Control program since 1993.
Through robust grants, enforcement efforts, research, and outreach,
this program has been instrumental in the reduction of 84 percent in
childhood blood lead levels of 10 [mu]g/dL or more from 1988-1991 to
1999-2004 \11\ and least an estimated 97 percent through 2014.\12\ The
success of HUD's OLHCHH comes from taking all actions feasible and
authorized to reduce lead exposure in children, and these actions
include providing conditions of funding through the office's notices of
funding availability, updating guidelines and best practices, and
working collaboratively with other Federal agencies such as the U.S.
Department of Health and Human Services (HHS), particularly its CDC,
and the U.S. Environmental Protection Agency (EPA), to name a few.\13\
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\10\ HUD. Leading Our Nation to Healthier Homes: The Healthy
Homes Strategic Plan. July 9, 2009. https://portal.hud.gov/hudportal/documents/huddoc?id=hhstratplan_7_9_09.pdf.
\11\ Dropping from 8.6% to 1.4%. Jones, R., et al. Trends in
Blood Lead Levels and Blood Lead Testing Among U.S. Children Aged 1
to 5 Years, 1988-2004. Pediatrics Vol. 123 No. 3 March 2009, pp.
E376-E385. https://pediatrics.aappublications.org/content/123/3/e376.
\12\ Dropping from 1.4% to an estimated 0.28% or less, based on
the 2.5% of children with blood lead levels at or above 5 [mu]g/dL
(see section I.B, below) and data collected by CDC's national
surveillance program on blood lead testing data, comparing the
numbers of children with blood lead levels at or above 5 [mu]g/dL
with those at or above 10 [mu]g/dL in CDC. Number of Children Tested
and Confirmed BLL's >=10 [mu]g/dL by State, Year, and BLL Group,
Children < 72 Months Old. www.cdc.gov/nceh/lead/data/Web
site_StateConfirmedByYear_1997_2014_01112016.xlsx.
\13\ See Advancing Healthy Housing, a Strategy for Action at
https://portal.hud.gov/hudportal/documents/huddoc?id=stratplan_final_11_13.pdf.
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CDC has recognized that the ``HUD Lead Hazard Control Program . . .
is the most easily identifiable and largest source of federal funding
for lead-hazard remediation.'' \14\ HUD notes that that program, which
implements section 1011 of Title X (42 U.S.C. 4852) does not address
all types of housing with which HUD is associated. Specifically,
section 1011 prohibits housing that is
[[Page 60306]]
``federally assisted housing, federally owned housing, or public
housing'' from being enrolled under the section's grants. Indeed,
Congress required lead hazard evaluation and control in precisely those
three categories of housing when it enacted sections 1012 and 1013 of
Title X, under which the LSHR was issued, so that the lead hazard
control grants and the LSHR complement each other in the housing stock
they address.
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\14\ CDC. CDC Response to Advisory Committee on Childhood Lead
Poisoning Prevention Recommendations in ``Low Level Lead Exposure
Harms Children: A Renewed Call of Primary Prevention.'' (CDC
Response.) Atlanta, June 7, 2012. (Corrected from initial release
May 13, 2012) www.cdc.gov/nceh/lead/acclpp/cdc_response_lead_exposure_recs.pdf.
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HUD emphasizes that the scope of its authority under Title X is
limited to lead-based paint hazard reduction in housing, and the scope
of this rule is further limited to the reduction of those hazards in
HUD-assisted housing. HUD is authorized by Title X to control lead-
based paint and lead-based paint hazards in certain HUD-assisted target
housing. Lead-based paint hazards are lead-based paint and all
residential lead-containing dusts and soils regardless of the source of
the lead, which, due to their condition and location, would result in
adverse human health effects. Title X required the EPA to promulgate
standards for lead-based paint hazards, specifically, paint-lead
hazards, dust-lead hazards, and soil-lead hazards, which it did through
rulemaking.\15\ HUD has incorporated the EPA's lead-based paint hazard
standards in the LSHR.\16\ Controlling exposures to lead from water is
outside of HUD's authority under Title X. The EPA also has
responsibilities regarding lead-based paint under Title X, and the EPA
administers other laws regulating lead, including the Clean Air Act,
Clean Water Act, Safe Drinking Water Act, Resource Conservation and
Recovery Act, and Comprehensive Environmental Response, Compensation,
and Liability Act, among others.\17\
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\15\ 15 U.S.C. 2683, implemented by EPA at 40 CFR 745.65 and
745.227(e)(8)(vii).
\16\ 24 CFR 35.110, 35.1315, 35.1320(b)(2), and 35.1325.
\17\ See https://www.epa.gov/lead/lead-laws-and-regulations for
more information.
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C. CDC's Revised Guidance on Elevated Blood Lead Levels
Until 2012, children were identified by CDC as having a blood lead
``level of concern'' if testing found 10 or more micrograms per
deciliter of lead in the blood (10 [mu]g/dL). In 2012, CDC revised its
guidance on childhood lead poisoning in response to recommendations by
CDC's Advisory Committee on Childhood Lead Poisoning Prevention
(ACCLPP), which concluded that a growing number of scientific studies
show that even low blood lead levels can cause lifelong health effects.
CDC accepted the recommendation of the ACCLPP to eliminate its use of
the term and concept of ``blood lead level of concern.'' \18\ CDC is
instead using a ``reference range value'' to identify children who have
been exposed to lead and who require case management. CDC uses the
phrase, ``to identify persons whose exposure to a toxic substance is
higher than that of most persons in the population and useful in
instances when no clear threshold for effects has been identified,'' as
is the case for childhood blood lead levels.\19\
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\18\ See Advisory Committee on Childhood Lead Poisoning
Prevention. Low Level Lead Exposure Harms Children: A Renewed Call
for Primary Prevention. Atlanta, January 4, 2012. www.cdc.gov/nceh/lead/acclpp/final_document_030712.pdf. The ACCLPP's charter expired
in October 2013. Activities in the Committee's field of interest are
now conducted by the Childhood Lead Poisoning Prevention
Subcommittee of the CDC's Board of Scientific Counselors, National
Center for Environmental Health/Agency for Toxic Substances and
Disease Registry (NCEH/ATSDR). See, e.g., www.atsdr.cdc.gov/science/docs/BSC_MINUTES_MAY_2014.pdf.
\19\ Raymond J., Wheeler W., Brown, M.J. Lead Screening and
Prevalence of Blood Lead Levels in Children Aged 1-2 Years--Child
Blood Lead Surveillance System, United States, 2002-2010 and
National Health and Nutrition Examination Survey, United States,
1999-2010. Morbidity and Mortality Weekly Report. v. 63, n. 2, p.
36-42. September 12, 2014. www.cdc.gov/mmwr/preview/mmwrhtml/su6302a6.htm.
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Consistent with the ACCLPP recommendation II that CDC link lead
levels in its guidance to results from CDC's National Health and
Nutritional Examination Survey (NHANES),\20\ the CDC's ``reference
range value'' method for defining elevated blood lead levels (EBLLs) is
based on the blood lead level equaled or exceeded by 2.5 percent of
U.S. children aged 1-5 years as determined by NHANES. CDC's current
reference range level is 5 [mu]g/dL (5 micrograms of lead per
deciliter). This level, established in 2012 as part of CDC's response
to ACCLPP, is lower than CDC's former blood lead level of concern,
established in its 1991 Statement,\21\ which had been 10 [mu]g/dL, and
its level for recommending environmental intervention for children, 20
[mu]g/dL, or 15 [mu]g/dL if that level persists, levels that it
reaffirmed in its 2005 Statement.\22\ This new lower value means that
more children will likely be identified as having lead exposure,
allowing parents, doctors, public health officials and communities to
take action earlier to reduce the child's future exposure. It is
important to note that by CDC's tying its reference value to the
national distribution of blood lead levels, the reference level will
continue to decrease whenever progress is made on reducing childhood
lead exposure. For instance, if the 97.5 percentile drops to 2 [mu]g/dL
due to reductions in exposure to lead paint exposure, the number of
children who have lead exposures above the new reference value would
change only slightly, based on the growth of the national population of
children under age 6, which would be about 2 percent over CDC's four-
year reference range value updating period.\23\ CDC concurred in
principle with the ACCLPP recommendation to adopt a reference range
that is tied to the national distribution of blood lead levels (CDC
Response to ACCLPP recommendation II.)
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\20\ CDC National Center for Health Statistics, National Health
and Nutrition Examination Survey. Homepage at www.cdc.gov/nchs/nhanes.htm.
\21\ CDC. Preventing Lead Poisoning in Young Children. A
Statement by the Centers for Disease Control, chap. 8. October 1991.
www.cdc.gov/nceh/lead/publications/books/plpyc/contents.htm.
\22\ CDC. Preventing Lead Poisoning in Young Children. A
Statement by the Centers for Disease Control and Prevention. August
2005. p. 2. www.cdc.gov/nceh/lead/publications/PrevLeadPoisoning.pdf.
\23\ Calculated based on Table 1, Population by Sex and Selected
Age Groups: 2000 and 2010, in Howden L.M. and Meyer J.A. U.S. Census
Bureau. Age and Sex Composition 2010. 2010 Census Briefs. C2010BR-
03. May 2011. Page 2. www.census.gov/prod/cen2010/briefs/c2010br-03.pdf.
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HUD's currently codified LSHR, at 24 CFR 35.110 (the definition
section), uses the term ``environmental intervention blood lead level''
(EIBLL). EIBLL is the blood lead level at which an evaluation for lead-
based paint hazards and interim controls of such hazards identified
(i.e., a type of environmental intervention) are to be conducted in
certain housing covered by the LSHR. Specifically, HUD defined EIBLL as
``a confirmed concentration of lead in whole blood equal to or greater
than 20 [mu]g/dL for a single test or 15-19 [mu]g/dL in two tests taken
at least 3 months apart.'' HUD's definition is consistent with the
guidance issued by CDC in November 1997, i.e., shortly before the LSHR
was published on September 15, 1999, at 64 FR 50139-50231. CDC's 1997
guidance was that a blood lead level of 10-14 [mu]g/dL should trigger
monitoring, certain parental actions, and perhaps community-wide
education, but not lead hazard control in an individual child's
home.\24\ At the time that HUD was developing the LSHR, CDC did not
recommend a full home inspection or assessment in response to blood
lead levels below 15 [mu]g/dL. CDC's revised guidance uses a reference
range value to trigger the identification of conditions in the
environment associated with
[[Page 60307]]
lead-exposure hazards. CDC's revised guidance recommends that children
under age 6 should not live or spend significant time in homes with
lead-exposure hazards (CDC Response to ACCLPP recommendations II and
III).
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\24\ CDC. Screening Young Children for Lead Poisoning: Guidance
for State and Local Public Health Officials. Chapter 4. Role of
Child Health-Care Providers in Childhood Lead Poisoning Prevention.
Atlanta. November 1997. www.cdc.gov/nceh/lead/publications/screening.htm.
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Although HUD has not yet conformed the LSHR to reflect the CDC's
2012 revised approach for establishing the definition of EBLL, HUD's
Guidelines for the Evaluation and Control of Lead-Based Paint Hazards
in Housing (HUD Guidelines) second edition (2012), which provide
guidance information regarding evaluation and hazard reduction
activities described in the LSHR (24 CFR 35.1310(a)), adopted CDC's
reference range value method for defining an EBLL.\25\ In addition, HUD
has implemented use of CDC's revised definition in both of its lead
hazard control grant programs--the Lead-Based Paint Hazard Control
grant program and the Lead Hazard Reduction Demonstration grant
program--in the annual notices of funding availability (NOFAs) issued
for these programs commencing in fiscal year 2013,\26\ the first NOFAs
issued after CDC revised its guidance, advising the grantees of grants
awarded under those NOFAs to use the definition to prioritize
enrollment of housing units for lead hazard control work.
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\25\ See https://portal.hud.gov/hudportal/HUD?src=/program_offices/healthy_homes/lbp/hudguidelines, HUD Guidelines,
esp. chapter 16, Investigation and Treatment of Dwellings that House
Children with Elevated Blood Lead Levels.
\26\ HUD Office of Lead Hazard Control and Healthy Homes. Notice
of Funding Availability for HUD's Fiscal Year (FY) 2013 Lead-Based
Paint Hazard Control Grant Program and Lead Hazard Reduction
Demonstration Grant Program. December 3, 2012. https://portal.hud.gov/huddoc/2013leadcombonofa.pdf. FY 2014 Lead-Based
Paint Hazard Control (LBPHC) Grant Program and Lead Hazard Reduction
Demonstration (LHRD) Grant Program. May 13, 2014. https://portal.hud.gov/hudportal/documents/huddoc?id=2014leadcombonofa.pdf.
FY 2015 Lead-Based Paint Hazard Control (LBPHC) Grant Program. May
7, 2015. https://portal.hud.gov/hudportal/documents/huddoc?id=2015lbphcnofa.pdf. FY 2015 Lead Hazard Reduction
Demonstration (LHRD) Grant Program. May 7, 2015. https://portal.hud.gov/hudportal/documents/huddoc?id=2015lhrdnofa.pdf. Lead-
Based Paint Hazard Control (LBPHC) Grant Program for FY 2016. https://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/grants/fundsavail/nofa16/lbphc. Lead Hazard Reduction Demonstration
(LHRD) Grant Program for FY 2016. https://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/grants/fundsavail/nofa16/lhrd.
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ACCLPP recommendation X was that CDC adopt prevention strategies to
reduce environmental lead exposures in soil, dust, paint, and water
before children are exposed. As part of its response, CDC noted that it
would continue to emphasize the importance of environmental assessment
and mitigation of lead hazards before children are exposed (CDC
Response to ACCLPP recommendation X).
ACCLPP recommendation XI was that, ``If lead hazards trigger a
response in any unit in a multi-family housing complex, the same
response action should be applied to all similar untested units in the
housing complex, unless a risk assessment demonstrates that no lead
hazards are present in the other units.'' In response, CDC concurred
with the evidence suggesting that a building that houses one child with
lead poisoning is an indication that other children in that building
are likely at risk (CDC Response to ACCLPP recommendation XI).
D. Response to CDC Guidance
HUD has been implementing primary prevention--the strategy of
emphasizing preventing exposure rather than responding after the
exposure has taken place \27\--since before CDC responded to the ACCLPP
recommendations, specifically, implementing most of those
recommendations that pertain to HUD.
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\27\ CDC Response. op. cit.
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Regarding the CDC Response to ACCLPP recommendation II, on using
the reference range value, as noted above, HUD issued the second
edition of its Guidelines, which included information on environmental
interventions based on CDC's revised approach to EBLL,\28\ and used the
revised definition in its NOFAs for its Lead Hazard Control Grant
Programs starting with the first NOFA after the CDC Response was
published.
Regarding the CDC Response to ACCLPP recommendation III, on primary
prevention, one of the purposes of the LSHR, as noted above, is to
ensure, as far as practicable, that federally-owned or federally-
assisted target housing does not have lead-based paint hazards.
Assisted target housing covered by the rule is assessed for hazards
before the assisted occupants move in; controls before occupancy are
required when hazards are identified; when the assistance is ongoing,
ongoing lead-based paint maintenance is required, periodic re-
evaluations for the presence of lead hazards are conducted, and hazards
are controlled, and occupants are notified of the results--all of these
actions are independent of, and precede, children's blood lead levels
increasing as a result of lead-based paint hazards in their housing.
Regarding the CDC Response to ACCLPP recommendation VI, that
clinicians report EBLL cases to local and state health and/or housing
departments, the LSHR includes, in the subparts pertaining to ongoing
assistance for target housing, the requirement that the owner (or other
``designated party'' responsible for the assistance under the rule)
promptly report the name and address of a child identified as having an
EIBLL to the public health department within 5 business days of being
so notified by any other medical health care professional.\29\
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\29\ 24 CFR 35.730(e), 830(d), 1130(e), 1225(e).
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Regarding the CDC Response to ACCLPP recommendation VII, HUD has
long been engaged in educating families, service providers, advocates,
and public officials on primary prevention of lead exposure in homes,
through outreach campaigns, development, publication and distribution
of brochures, flyers, manuals, and guidance documents, training of
housing sector stakeholders, and supporting the EPA's National Lead
Information Center, which provides the general public and professionals
with information about lead, lead hazards, and their prevention.\30\
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\30\ See, e.g., EPA. Lead Hotline--The National Lead Information
Center. https://www.epa.gov/lead/forms/lead-hotline-national-lead-information-center.
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Regarding the CDC Response to ACCLPP recommendation VIII, HUD has
long facilitated data-sharing between health and housing agencies,
promoted preventive lead-safe housing standards for target housing,
identifying financing for lead hazard remediation, and provided
families with the information needed to protect their children from
hazards in the home. For example, as far back as 1990, in its Interim
Guidelines on addressing lead hazards in public and Indian housing, HUD
encouraged public housing agencies to collaborate with health
departments on, e.g., encouraging blood lead screening and development
of outreach materials, sharing data about cases of high blood lead
levels in children, then called ``lead poisoning'' or elevated blood
lead level (albeit with the different quantitative meaning at that
time), referring children to a lead hazard control program,\31\ and the
Department has continued these efforts since then.
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\31\ HUD Office of Public and Indian Housing. Lead-Based Paint:
lnterim Guidelines for Hazard ldentification and Abatement in Public
and Indian Housing. September 1990.
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Regarding the CDC Response to ACCLPP recommendation X, which
emphasizes the importance of environmental assessments to identify and
mitigate lead hazards as a primary prevention technique, as noted
above, the LSHR requires this of all of the assisted housing covered by
the rule.
[[Page 60308]]
Similarly, on the item that CDC adopt prevention strategies to reduce
environmental lead exposures in soil, dust, paint, and water before
children are exposed, under the LSHR, as noted above, HUD has been
implementing the prevention strategy to reduce environmental lead
exposures in soil, dust, and paint, the media for which it has
authority to do so under Title X. Regarding lead exposures from water,
see the EPA Integrated Science Assessment for Lead.\32\
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\32\ EPA. Integrated Science Assessment for Lead. See fn. 1.
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Regarding several additional ACCLPP recommendations, HUD has been
implementing the CDC response since the issuance of the CDC Response.
Regarding the recommendation XIII, specifically, the element of the
recommendation that has a housing connection, on CDC improving the use
of data from screening programs, HUD and CDC collaborated on matching
addresses of HUD-assisted residents with national health survey data to
develop a method for improving the targeting of lead hazard control
efforts and resources.\33\ HUD will continue seeking ways it can
contribute to CDC's efforts in this regard.
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\33\ The abstract from this research will be published in the
conference program for the Epidemiology Congress of the Americas'
conference, June 21-24, 2016 (https://epiresearch.org/2016-meeting/
). The full abstract citation will be inserted here at that time,
and when the article is published, that article's citation will be
inserted here.
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II. Regulatory Approach
Although HUD is already applying the CDC's 2012 revised definition
of EBLL in its lead hazard control NOFAs and in its Guidelines, the
LSHR has not yet been updated to reflect the CDC's revised definition
of EBL. During this time, federal agencies involved with reducing
childhood lead exposures, including HUD, CDC, EPA and NIEHS, have
continued to explore how best to use scientific and medical information
to approach the problem of childhood lead exposures and develop
approaches for prioritizing action within the limits of available
resources. To keep HUD's criterion for requiring environmental
intervention in response to a child having a sufficiently high blood
lead level to warrant such action in synchrony with CDC's approach for
determining when environmental intervention is recommended, this rule
therefore proposes to revise the LSHR to adopt the CDC's approach to
establishing a blood lead level for which CDC recommends environmental
intervention, i.e., a trigger level for environmental intervention as
the definition of EBLL in the LSHR, and apply it to determining when
environmental interventions in federally-assisted and federally-owned
target housing covered by the rule are to be conducted. In addition,
this rule proposes to change the LSHR to reflect other CDC guidance
responding to the ACCLPP recommendations, and to make additional
improvements based on HUD's experience with implementing the LSHR in
order to further strengthen prevention strategies in federally-assisted
and federally-owned target housing.
Specifically, HUD is proposing to revise the LSHR regarding target
housing covered by the five subparts of the LSHR that are related to
children under age 6 exposed to lead in housing where the Federal
Government maintains a continuing financial or ownership relationship.
HUD proposes to implement the recommendations of the CDC, within the
scope of HUD's authority, and in consideration of available federal
resources. The five subparts currently use the EIBLL threshold for
undertaking an environmental response.
HUD is proposing to revise these subparts to use the CDC's approach
for determining when a child's blood lead level triggers the
environmental response. The following types of federal housing
assistance are covered in 24 CFR part 35 subparts for which an
environmental intervention may be required:
D--Project-Based Assistance Provided by a Federal Agency other than HUD
H--Project-Based Assistance
I--HUD-Owned and Mortgagee-in-Possession Multifamily Property
L--Public Housing Programs
M--Tenant-Based Rental Assistance
Provisions proposed to be revised within the individual subparts
are described below.
In regard to housing for which the current rule requires response
to EIBLL cases and this proposed rule would require response to EBL
cases, the following types of hazard evaluation and reduction
activities are required, whether or not a child with an EIBLL resides
or is expected to reside in a unit covered by the LSHR:
Lead-based paint inspection: Subparts I and L. This is a surface-
by-surface investigation to determine the presence (including the
location) of lead-based paint and providing a report explaining the
results of the investigation.
Hazard Evaluation:
Risk Assessment: Subparts D, H (assistance over $5,000 per
unit per year), and I. Lead risk assessments involve visual assessment
for deteriorated paint, testing of deteriorated paint to determine if
it is lead-based paint (and thus, a lead-based paint hazard because of
the deterioration), dust wipe sampling of window sills and floors, and
sampling of bare soil.
Visual assessment for deteriorated paint: Subparts H
(assistance up to $5,000 per unit per year), M
Reevaluation: Subparts D, H (assistance over $5,000 per
unit per year), I and L. Reevaluations involve a visual assessment of
painted surfaces and limited dust and soil sampling conducted
periodically following lead-based paint hazard reduction where lead-
based paint is still present.
Periodic inspection for deteriorated paint: Subpart M:
These periodic inspections are conducted as part of the inspection of
the assisted housing.
Hazard Reduction:
Abatement of LBP hazards: L (during comprehensive
modernization). Abatement is set of measures designed to permanently
(for an expected design life of at least 20 years) eliminate lead-based
paint or lead-based paint hazards Abatement includes: Removing lead-
based paint and dust-lead hazards, permanently enclosing or
encapsulating lead-based paint, replacing components or fixtures
painted with lead-based paint, and removing permanently covering soil-
lead hazards; along with all the preparation, cleanup, disposal, and
post-abatement reoccupancy clearance testing activities associated with
those measures.
Interim controls of LBP hazards: Subparts D, I, and L (pending
abatement during comprehensive modernization). Interim controls are
measures designed to reduce temporarily human exposure or likely
exposure to lead-based paint hazards. They include, but are not limited
to, repairs, painting, temporary containment, specialized cleaning,
clearance for tenant reoccupancy after projects that involve paint
disturbance larger than the de minimis amounts specified in the
rule,\34\ ongoing lead-based paint maintenance activities, and the
establishment and operation of management and resident education
programs.
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\34\ 24 CFR 35.1350(d): 20 square feet on exterior surfaces, 2
square feet in any one interior room or space, or 10 percent of the
total surface area on an interior or exterior type of component with
a small surface area (e.g., window sills, baseboards, and trim).
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Paint stabilization: Subparts H (assistance up to $5,000 per unit
per year), M. Paint stabilization involves repairing any physical
defect in the substrate of a painted surface that is
[[Page 60309]]
causing paint deterioration, removing loose paint and other material
from the surface to be treated, and applying a new protective coating
or paint.
Lead hazard evaluation and control activities in HUD-assisted and
HUD-owned housing are subject to the requirements of the applicable
civil rights laws, including the Fair Housing Act as amended (for
example, by the Fair Housing Amendments Act), and its prohibition of
discrimination on the basis of disability or familial status (including
the presence of a child under age of 18, or of a pregnant woman), Title
VI of the Civil Rights Act of 1964 (prohibiting discrimination on the
basis of race, color, and national origin), Title IX of the Education
Amendments of 1972 (prohibiting discrimination on the basis of sex),
and section 504 of the Rehabilitation Act of 1973 (prohibiting
discrimination on the basis of disability). These laws, and their
associated HUD regulations \35\ and guidance \36\ are incorporated into
the LSHR through its Sec. 35.145, Compliance with Federal laws and
authorities. The applicability of the fair housing laws, regulations,
and guidance to these activities would continue without change by this
proposed rule.
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\35\ See 24 CFR parts 100-180, especially parts 135 and 146.
\36\ See the Office of Fair Housing and Equal Opportunity's FHEO
Library at https://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/library#Guidance for links to a set of Policy
and Guidance documents. The FHEO Library also contains links to sets
of documents on Decrees and Conciliation Agreements, Marketing
Materials, Memorandums of Understanding (MOU), Publications,
Studies, Voluntary Compliance Agreements, and Annual Reports. The
Office's homepage is at https://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp.
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A. Response to Young Children With Elevated Blood Lead Levels
In updating the LSHR to reflect the CDC's approach to defining EBL,
within the scope of HUD's authority, HUD is proposing to shift its
threshold for environmental intervention from the environmental
intervention blood lead level (EIBLL), as described above, to the
elevated blood lead level (EBLL) that is identified in CDC's guidance
for recommending a childhood blood lead level such that an
environmental intervention should be conducted, at any given point in
time. In 2012, CDC's guidance used the reference range value, which had
the numerical value of 5 [mu]g/dL; HUD would continue to rely on CDC's
guidance, whether CDC's approach continued to use the reference range
value or used another criterion. In addition, this rule proposes to
revise the type of hazard control undertaken when lead-based paint or
other hazards are identified and, in the case of housing projects with
more than one unit, address lead-based paint hazards in those other
units in which children under age 6 reside.
The approach to implementing the regulatory protocol under this
proposed rulemaking is founded on the currently codified LSHR, the CDC
guidance on blood lead reference levels, the HUD Guidelines, and HUD's
experience implementing the LSHR since its 1999 promulgation. Figure 1
provides an overview of the proposed protocol for addressing elevated
blood lead level cases in assisted housing covered by the LSHR; its
details are discussed below.
BILLING CODE 4210-67-P
[[Page 60310]]
[GRAPHIC] [TIFF OMITTED] TP01SE16.127
BILLING CODE 4210-67-C
[[Page 60311]]
In broad terms, HUD's proposed protocol for responding to a case of
a child under age 6 with an EBLL would include the ``designated party''
undertaking certain actions. The designated party is the owner or other
entity (e.g., federal agency, public housing agency, tribally
designated housing entity, sponsor, etc.) designated under the LSHR as
responsible for complying with applicable requirements of the LSHR for
the residential property or dwelling unit, as applicable (see Sec.
35.110). As described below, the protocol is the same for each of the
four applicable HUD subparts (H, I, L, M), and slightly narrower for
the other agencies' subpart (D), for which the agencies would decide
how to deal with other housing units in multi-unit properties than the
unit in which the child with an EBLL resides.
The protocol would include the designated party:
Conducting an environmental investigation \37\ of the
dwelling unit in which the child lived at the time the blood was last
sampled (the ``index'' unit \38\) and of common areas servicing the
index unit.\39\ (The procedure for conducting the environmental
investigation is described below.)
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\37\ This rule proposes to defined this term as the process of
determining the source of lead exposure for a child under age 6 with
an elevated blood lead level, consisting of administration of a
questionnaire, comprehensive environmental sampling, case
management, and other measures., in accordance with chapter 16 of
the HUD Guidelines for the Evaluation and Control of Lead-Based
Paint Hazards in Housing (``Guidelines'').
\38\ Terminology adapted from the traditional epidemiology term
``index case, the case that is first reported to public health
authorities.'' CDC. Guidelines for the Control of Pertussis
Outbreaks. Centers for Disease Control and Prevention: Atlanta, GA,
2000. Chapter 11, Definitions. www.cdc.gov/pertussis/outbreaks/guide/downloads/chapter-11.pdf.
\39\ However, if the designated party conducted a risk
assessment of the unit and common areas servicing the unit between
the time the child's blood was last sampled and when the designated
party received notification of the EBLL, the designated party need
only conduct the elements of an environmental investigation not
already conducted during the risk assessment. See below for the
discussion of environmental investigations vs. risk assessments.
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Conducting interim control \40\ of lead-based paint
hazards identified in the index unit and, in the unlikely case that the
work duration exceeds thresholds in the LSHR \41\ (the most applicable
threshold, of 5 calendar days, with the worksite contained and it and
the area within 10 feet cleaned so that the family can return each day,
is not expected to be exceeded), temporarily relocating the family to a
suitable, decent, safe, and similarly accessible dwelling unit that
does not have lead-based paint hazards.
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\40\ Interim control refers to actions that reduce temporarily
human exposure or likely exposure to lead-based paint hazards
including specialized cleaning, repairs, maintenance, painting,
temporary containment.
\41\ 24 CFR 35.1345(a)(2).
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Controlling other housing-related sources of lead exposure
in the building, such as lead-contaminated debris.
Being encouraged to gain the collaboration of the
occupants in addressing the presence and use of sources of lead
exposure that are not housing-related. Non-housing items (such as lead-
containing cosmetics, pottery, folk remedies,\42\ take-home exposures
from the workplace, etc.) owned or used by the occupants are outside of
the scope of Title X and, as a result, the LSHR.
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\42\ Lead has been found in some traditional (folk) medicines
used by, for example, East Indian, Indian, Middle Eastern, West
Asian, and Hispanic cultures. Folk medicines can contain herbs,
minerals, metals, or animal products. Lead and other heavy metals
are put into certain folk medicines because these metals are thought
to be useful in treating some ailments. Sometimes lead accidentally
gets into the folk medicine during grinding, during coloring, or
from the package. See www.cdc.gov/nceh/lead/tips/folkmedicine.htm.
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The proposed procedure for conducting an environmental
investigation, including procedures for investigating sources of lead
exposure other than lead-based paint hazards, as presently found is
found in Chapter 16 of the HUD Guidelines.\43\ The protocol includes:
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\43\ Chapter 16 of the HUD Guidelines for the Evaluation and
Control of Lead-Based Paint Hazards in Housing notes that, ``The
purpose of the [environmental] investigation is to identify lead
hazards in the environment of a child. An ordinary risk assessment
attempts to uncover lead-based paint hazards in a dwelling,
regardless of whether a child has an EBLL. The investigator is
obligated to conduct a comprehensive investigation of all sources of
lead in the child's environment, not just those lead exposures
directly related to the child's residence. This investigation
includes studying less-common sources of lead, such as glazed
pottery and folk medicines or remedies, etc., and other dwellings or
areas frequented by the child. Some of these sources may be
discovered by the results of the questionnaire. The investigator
tests deteriorated paint on furniture identified as a potential
hazard to the environmental intervention blood lead (EIBLL) child,
regardless of who owns the furniture.'' (Paragraphs merged.)
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Reviewing the findings of any previous lead-based paint
inspection, risk assessment, environmental investigation, or
reevaluation for the property.
Conducting a comprehensive interview of the family of the
child, based on the CDC EBLL environmental investigation checklist or
HUD EBLL questionnaire (both are in the chapter), or a comparable
questionnaire (such as one from the public health department).
Conducting a risk assessment.\44\
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\44\ A risk assessment is (per Sec. 35.110), an on-site
investigation to determine the existence, nature, severity, and
location of lead-based paint hazards; and the provision of a report
by the individual or firm conducting the risk assessment explaining
the results of the investigation and options for reducing lead-based
paint hazards. As such, it is narrower in scope than an
environmental investigation, as described here.
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Augmenting the risk assessment, in consultation with the
public health department managing the child's EBLL case, if that public
health department chooses to cooperate with the designated party, to
determine what, if any, other possible sources of exposure should be
investigated, including, but not limited to:
[cir] Drinking water.
[cir] Glazed pottery or tableware that may contain lead glazes.
[cir] Work clothes or vehicle that may have been contaminated from
a parent's or guardian's work place.
[cir] Imported cosmetics, hobbies, folk remedies, and candies.
(Hobby contamination involving lead (e.g., hunting, fishing, furniture
refinishing, stained glass making, etc.) has been recognized as a lead
exposure source in, e.g., CDC guidance and EPA guidance).
Providing to the HUD field office documentation that the
designated party has conducted the activities above, within 10 business
days of the deadline for each activity. In accordance with the
Government Paperwork Elimination Act, which encourages electronic
submission of information as a substitute for paper,\45\ the designated
party may submit the documentation of compliance with the LSHR
regarding the affected units electronically.
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\45\ 44 U.S.C. 3504(a)(1)(B)(vi).
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The designated party or public health department may have conducted
an environmental investigation of the index unit and common areas
servicing it between the dates the child's blood was last sampled and
the designated party received the EBLL notification. If so, the
designated party would not need to conduct another environmental
investigation. Similarly, if the designated party had conducted a risk
assessment of the index unit and common areas servicing the unit during
that period, it would not need to conduct another risk assessment, it
would need to conduct only the additional elements of an environmental
investigation.
A key part of the response to the case of a child with an elevated
blood lead level is the environmental investigation of the unit in
which the child resided, i.e., the index unit. The index unit may be in
a building or project with other assisted dwelling units covered by the
LSHR in which children under age 6 reside or are expected to reside
(see the
[[Page 60312]]
discussion of ``expected to reside'' in section II.A.2). If so, the
protocol would include the designated party either:
Providing to the HUD field office \46\ documentation that
the designated party has complied with required evaluation (with the
type of evaluation, i.e., lead-based paint inspection, risk assessment,
or visual assessment for deteriorated paint, in accordance with the
Rule's subpart regarding the type of assistance), notification, lead
disclosure, ongoing lead-based paint maintenance, and lead-based paint
management in those units; or,
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\46\ See the HUD Field Office listing Web page at https://portal.hud.gov/hudportal/HUD?src=/program_offices/field_policy_mgt/localoffices. For Multifamily Housing assistance, designated parties
may also contact the respective Regional Center, Regional Satellite
Office, Hub or Program Center directly; see the Multifamily Regional
Centers and Satellite Offices Web page at https://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/mfh/hsgmfbus/abouthubspcs.
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If the designated party does not provide such
documentation of compliance to date, conducting a risk assessment of
the non-compliant other units within the building or project covered by
the LSHR and the common areas that service them, and conducting interim
controls of lead-based paint hazards identified, or in the case of
tenant-based rental assisted units and project-based rental assisted
units receiving under $5,000 per unit per year or being single family
housing, conducting visual assessment and stabilization of deteriorated
paint,\47\ and providing to the HUD field office documentation that the
designated party has conducted the evaluation (i.e., risk assessment or
visual assessment, as applicable) and hazard control (i.e., interim
controls or paint stabilization, as applicable) within 10 business days
of the deadline for the respective activities.\48\
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\47\ Paint stabilization is ``repairing any physical defect in
the substrate of a painted surface that is causing paint
deterioration, removing loose paint and other material from the
surface to be treated, and applying a new protective coating or
paint.'' (Sec. 35.110)
\48\ Paint stabilization is ``repairing any physical defect in
the substrate of a painted surface that is causing paint
deterioration, removing loose paint and other material from the
surface to be treated, and applying a new protective coating or
paint.'' (Sec. 35.110)
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As noted above in regard to the Government Paperwork Elimination
Act, the designated party may submit the documentation of compliance
with the LSHR regarding the affected units electronically.
Consistent with CDC's response to the ACCLPP recommendations,
chapter 16 of the HUD Guidelines for the Evaluation and Control of
Lead-Based Paint Hazards in Housing (HUD Guidelines) \49\ recommends
control of sources of lead exposure identified during an environmental
investigation or risk assessment. These sources of lead exposure
include:
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\49\ HUD. Guidelines for the Evaluation and Control of Lead-
Based Paint Hazards in Housing. Washington, 2014. https://portal.hud.gov/hudportal/HUD?src=/program_offices/healthy_homes/lbp/hudguidelines.
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Lead-based paint hazards (i.e., paint-lead hazards, dust-
lead hazards, or soil-lead hazards, as defined and given quantitative
measure by EPA at 40 CFR 745.63 and 745.65, respectively), which are
identified by a lead risk assessment. A risk assessment is defined in
the LSHR at Sec. 35.110 (see footnote 45, above), and given
operational meaning for the LSHR incorporation of EPA's Lead-Based
Paint Hazards, Lead-Based Paint Activities, and State and Indian Tribal
Programs rules (40 CFR part 745, parts D, E, and Q, respectively, by
the LSHR at 24 CFR 35.1320, Lead-based paint inspections and risk
assessments), and
Other housing-related sources of lead exposure that are
outside of the scope of lead risk assessments. The procedure for
environmental investigations, as provided in chapter 16 of the
Guidelines, is summarized above.
HUD notes that reevaluation is not part of the response to an EBLL.
Reevaluations (or, for tenant-based rental assistance, periodic housing
quality standard inspections) are already part of the regular ongoing
lead-based paint management required in the subparts this proposed rule
would amend, so they are not part of this amendment.
HUD's statutory authority to require controls of lead exposure
sources, in contrast to recommending control of them, is limited to
housing hazards under the United States Housing Act of 1937 (1937 Act)
42 U.S.C. 1437 et seq., as amended \50\ (e.g., on public housing
meeting housing quality standards \51\ through lease contracts
obligating public housing agencies to maintain housing projects in safe
condition,\52\ and on safety requirements for housing assistance
programs for lower-income families \53\). In this context, the controls
are limited to lead-based paint hazards, rather than lead exposures
from the personal contents of the housing residents and visitors, the
public water supply, ambient air levels or industrial emissions.
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\50\ Public Law 93-383, 88 Stat. 633, approved August 22, 1974.
(The codified version can be searched on www.fdsys.gov; the text of
the United States Code's subchapter, General Program of Assisted
Housing (42 U.S.C. 1437-1437z-8) can be downloaded from www.gpo.gov/fdsys/pkg/USCODE-2012-title42/html/USCODE-2012-title42-chap8-subchapI.htm.).
\51\ Section 6(f)(2); 42 U.S.C. 1437d(f)(2).
\52\ Section 6(l)(3); 42 U.S.C. 1437d(l)(3).
\53\ Section 8(c)(4); 42 U.S.C. 1437f(c)(4).
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As seen in numerous HUD regulations from its various program
offices,\54\ HUD can encourage activities even if it does not require
them. Accordingly, through this rulemaking, HUD encourages (in
Sec. Sec. 35.730(f)(3)(iv), 35.1130(f)(4), and 35.1225(f)(3))
designated parties to identify and control lead-based paint hazards in
locations not covered by the LSHR (i.e., unassisted housing units), and
lead exposure sources other than lead-based paint hazards, even if
doing so is not required by the LSHR.
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\54\ E.g., 24 CFR 8.28(a)(2), 50.3(a), 51.101(a)(5),
51.106(a)(4), 91.105(a)(2)(i)(ii)(iii), 200.857(g)(4), 570.466,
902.75(f), 964.15, and 984.201(d)(5), etc.
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As described below, across the different subparts of the LSHR,
there are some differences in terminology, scoping, and exceptions,
based on the specifics of the housing assistance.
1. Dwelling Unit in Which the Child Resided
HUD is proposing that, when a child under age 6 residing in target
housing where the Federal government maintains a continuing financial
or ownership relationship is reported to have an EBLL, the designated
party must complete an environmental investigation of the index unit,
and of common areas servicing the index unit, within 15 calendar days
of the designated party being notified.
As noted above, several types of federal housing assistance,
covered by 24 CFR part 35 subparts D, H, I, L, and M, identified above,
have provisions that address lead safety in regard to children under
age 6. The subparts apply when the Federal government maintains a
continuing financial or ownership relationship to the target housing
(vs. the short-term relationship in most rehabilitation projects, which
ends when the construction work is completed, if there is no other
long-term assistance relationship).
Similarly to the process under the currently codified rule, if the
notification of an EBLL case is received from a person who is not a
medical health care provider, the requirement to conduct an
environmental investigation would be conditioned on verification of the
case information, including the child's blood lead level information
with the public health department or other medical health care
provider. However, the threshold for such verification would be changed
from EIBLL to EBLL as defined under this proposal.
[[Page 60313]]
Under the currently codified rule, the blood lead threshold for
conducting the environmental investigation is fixed. Under this
proposed rule, the threshold for the EBLL would change when CDC updates
its guidance for a childhood blood lead level such that an
environmental intervention should be conducted. As of 2012, this was
the reference range level for children under age 6 (i.e., the blood
lead level at or above which the top 2.5th percentile of U.S.
children's blood lead levels are to be found, per CDC's NHANES). CDC
announced that it plans to update the reference range value every 4
years (CDC response to ACCLPP Recommendation II).\55\ Thus, CDC's
recommendation on a childhood blood lead level for recommending an
environmental intervention would be updated at least that often.
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\55\ HUD recognizes that, if the EBLL threshold continues to
decrease over time, the measurement variability (sampling and
analytical variability) will represent a larger fraction of the
threshold value. It would therefore, be likely that, at some point,
the percentile approach of the reference range value might not be
correlated as tightly with determinable lead exposure sources, i.e.,
a smaller fraction of cases may be attributable to lead-based paint
hazards. The environmental investigation will make that
determination in individual cases. Should a statistically
significant substantial trend toward low fractions of EBLL cases
being attributable to lead-based paint hazards be identified, HUD
would consider further LSHR rulemaking based on the evidence
available at that future point.
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If the proposed rule is adopted, after CDC publishes an update to
the EBL guidance, HUD would issue a notice on the applicability of that
updated threshold to the LSHR going forward after a preparatory
transition period. HUD's notice would, in order to provide regulatory
and programmatic clarity, and to avoid unnecessary retroactive program
changes, specify that the change would be prospective, not retroactive.
Thus, the status of housing of children with blood lead levels based on
measurements taken before the transition period ends that are in the
range between the earlier and newer reference range values would not be
affected by the change. (For example, if the earlier reference range
value was 5.0 [mu]g/dL, and a 4-year old child's blood lead level
measured before the end of the transition period were 3.7 [mu]g/dL, the
child's dwelling unit would not need to be subject to an environmental
investigation, even if the updated EBL value published after the
child's blood were tested is 3.7 [mu]g/dL or less. If the child
continues to reside in federally-owned or -assisted housing covered by
the environmental intervention requirement, and the child's blood, as
retested after the transition period has ended is at or above the
updated EBL value (in this example, at or above 3.7 [mu]g/dL), the
environmental intervention would then be required.)
Similarly, the blood lead level that would prompt notification to
the public health department would be an EBLL rather than an EIBLL.
In order that HUD be able to promptly monitor implementation of the
evaluation and hazard control procedures when an EBLL case has occurred
in HUD-assisted or HUD-owned target housing, HUD is proposing that the
designated party notify within 5 business days of being notified of the
EBLL case by a public health department or any other medical health
care professional both the HUD field office (as the currently codified
rule requires for public housing, under Sec. 35.1130(e)) and HUD's
OLHCHH, which has been delegated authority for oversight of the Lead
Safe Housing Rule.\56\ The OLHCHH, which is functioning as a public
health authority as defined by the Privacy Rule (45 CFR parts 160 and
164) promulgated under the federal Health Insurance Portability and
Accountability Act of 1996 (HIPAA) (Pub. L. 104-191, 110 Stat. 1936,
approved August 21, 1996, as amended),\57\ is developing an electronic
portal for submitting the case information, in order to minimize the
reporting burden on designated parties, and will announce the
availability of the portal and instructions for its use in a Federal
Register notice. If, and so long as there is sufficient demand for
notifications to be sent by mail or fax, the OLHCHH will make those
submittal pathways available. Should it determine that there is
insufficient demand; the OLHCHH will post a Federal Register notice to
that effect.
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\56\ HUD. Delegation of Authority for the Office of Healthy
Homes and Lead Hazard Control. 76 FR 45592. July 29, 2011. https://federalregister.gov/a/2011-19279.
\57\ HUD-CDC memorandum, March 9, 2004. www.hud.gov/offices/lead.
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The 15-day period for conducting environmental investigation would
be the same period as the current LSHR requires in EIBLL cases.
If the investigation identified lead-based paint hazards in these
areas, the designated party (or the owner, as applicable) would be
required to conduct interim controls of the hazards within 30 calendar
days of receiving the report of the investigation, as in the current
rule.
Similarly, as part of this rulemaking, HUD encourages the
designated party to address sources of lead exposure other than lead-
based paint hazards. If those sources are housing-related, e.g.,
airborne emissions from housing activities conducted by the designated
party (or the owner, as applicable), such as uncontrolled emissions
from welding or soldering operations in the property's machine shop,
the designated party (or the owner, as applicable) is encouraged by HUD
to address the hazards. The public health department may issue an
abatement order in regard to those sources; compliance with such an
order is a requirement of state, tribal or local law, as applicable.
Some or all of the sources of lead exposure may be outside of the scope
of Title X and the LSHR because they are not housing-related sources.
For example, the sources may be non-housing items, such as lead-
containing cosmetics, pottery, folk remedies, etc. owned or used by the
occupants that produce exposures, lead contamination on clothing or
skin and in vehicles from the workplace, out-of-home hobbies, or in-
home hobbies. Chapter 16 of the HUD Guidelines includes a set of links
to the CDC lead Web page on such sources.\58\ That chapter also refers
to the CDC lead Web page on at-risk populations (including children who
are poor, are members of racial-ethnic minority groups, are recent
immigrants, live in older, poorly maintained rental properties, or have
parents who are exposed to lead at work; pregnant women; refugee
children; and internationally adopted children),\59\ which is of
particular interest when no probable source of lead may be identified.
Both of those Web pages have further links to Web pages on specific
topics.
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\58\ www.cdc.gov/nceh/lead/tips/sources.htm.
\59\ www.cdc.gov/nceh/lead/tips/populations.htm.
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Regarding these sources, HUD encourages the designated party to
gain the cooperation of the occupants in addressing the presence and
use of non-housing-related sources of lead exposures. Similarly, some
of these sources may be ambient, such as hazardous waste facility
siting, or industrial emissions, regarding which, by this rulemaking,
HUD is indicating that it is important that the designated party inform
or even engage with local, state, and/or federal public health and/or
environmental officials in addressing the problem.
Hazard reduction would be considered complete when either:
Clearance of the unit and common areas servicing the unit
is achieved and the clearance report from the risk assessor states that
the control measures have been completed; or
The public health department certifies that the lead-based
paint hazard reduction and the control of other
[[Page 60314]]
housing-related lead hazards are complete.
The designated party may have, between the date the child's blood
was last sampled and when the designated party received the
notification, conducted hazard reduction of the unit and common areas
servicing the unit as described above, including passing clearance. If
so, it need not redo the hazard reduction.
2. Other Assisted Dwelling Units in the Building or Project
ACCLPP's recommendation XI was that, ``If lead hazards trigger a
response in any unit in a multi-family housing project, the same
response action should be applied to all similar untested units in the
housing project, unless a risk assessment demonstrates that no lead
hazards are present in the other units.''
HUD is proposing that if, (a) the dwelling unit in which the child
under age 6 resided when she or he was reported as having an EBLL,
i.e., the index unit, is part of a residential property or project that
has other units of housing covered by the LSHR, and (b) the index unit
has been confirmed to have lead-based paint hazards, then the occupancy
and lead management of other units covered by the LSHR with a child
under age 6 residing or expected to reside would be examined to
determine whether the designated party must conduct a risk assessment
or visual assessment (as described in the bulleted paragraphs above).
If so, and if lead-based paint hazards (or deteriorated paint) are
found in those other units, then interim controls or paint
stabilization,\60\ as applicable must be conducted, and clearance
passed. On the other hand, if the index unit has been found not to have
lead-based paint hazards, HUD is proposing that no risk assessment or
visual assessment, as applicable, be required in other assisted units
in the building or project. This approach is based on the predicate in
the CDC response to ACCLPP recommendation XI, namely, that a response
in other units is based on having ``lead hazards trigger a response in
any unit in a multi-family housing complex.'' If the index unit does
not have lead-based paint hazards, the CDC guidance does not recommend
actions in other units.
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\60\ Paint stabilization refers to repairing any physical defect
in a painted surface that is causing paint deterioration, removing
loose paint and other material from the surface to be treated, and
applying a new protective coating or paint.
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If index unit has any lead-based paint hazards, HUD is proposing
that the types of action required depend on whether a child under age 6
resides or is expected to reside in one or more other assisted units in
the building or project, and the documented degree of compliance with
the LSHR by the designated party in regard to the residential property,
as reviewed by HUD if the designated party wishes to use its
performance record as demonstrating that no lead-based paint hazards
are likely to be present in other units. This prioritization is
intended to focus limited federal resources on the situations of the
highest risk to children under age 6 in other assisted units in the
building or project where exposure to lead hazards may have occurred.
HUD has, of course, no jurisdiction under sections 1012 or 1013 of
Title X over unassisted units, but it encourages the use of the
protocol below in unassisted units, even if it cannot require its
application to those units. Similarly, regarding lead safety in
situations not covered by the Rule, HUD encourages housing owners
(occupant owners and landlords), housing maintenance, management, and
renovation firms, and others to be aware of its hazards, and to work
safely with lead-containing building materials, for the protection of
the health of occupants, visitors and workers, and their families.
In general, when the index unit has been found to have lead-based
paint hazards, and a child under age 6 resides or is expected to reside
in one or more other assisted units in the building or project, HUD is
proposing certain actions be undertaken, based on the type of
assistance. Specifically, the designated party would be required to
(with exceptions as noted below):
Conduct a risk assessment of those other units in public
housing, project-based rental assisted multifamily properties receiving
$5,000 or more per unit per year in HUD assistance, or HUD-owned and
mortgagee-in-possession multifamily properties with unit selection as
described in the statistically valid random sampling protocol in
Chapter 7, Section V, Inspections in Multi-family Housing, of the HUD
Guidelines (as discussed below), or sample all of those other units.
Conduct a visual assessment for deteriorated paint in
those other units in tenant-based rental assisted units, project-based
rental assisted properties receiving under $5,000 per unit per year in
HUD assistance, or project-based rental assisted single family housing
in the same project receiving HUD assistance. Again, when there are a
sufficient number of those other units, the random sampling protocol in
Chapter 7, Section V, of the HUD Guidelines may be used (as discussed
below) for unit selection.
The occupancy of the other assisted units in the building or
project would be examined to determine in which of them, if any,
children under age 6 resided or were expected to reside as of the date
when, regarding the index unit and common areas servicing that unit:
If lead-based paint hazards were identified, the date the
lead hazard control work passed clearance, that is, the unit (and/or
common area) where the work was done is completed, and the residents
can move into their unit (and/or pass through the common area) based on
a successful visual inspection for completion of the work and
cleanliness is passed and, for work that would disturb painted surfaces
that total more than a small (``de minimis'') amount (defined for the
LSHR in 24 CFR 35.1350(d)), passing a residual dust-lead level test; or
If no lead-based paint hazards were identified, the date
the environmental investigation in regard to the child in the index
unit was completed.
The ``expected to reside'' wording is used because it is in the
statutory and regulatory definitions of target housing as the exception
to the exemption of housing for persons with disabilities or the
elderly from target housing. Thus, housing for persons with
disabilities or the elderly in which a child under age 6 resides or is
expected to reside is covered by the scope of the LSHR.\61\ As detailed
in the definition section (Sec. 35.110) of the LSHR, as proposed to be
amended by this rule:
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\61\ 42 U.S.C. 4822(e)(1), 4851b(27); 24 CFR 35.110, 35.115.
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``Expected to reside means there is actual knowledge that a child
will reside in a dwelling unit reserved or designated exclusively for
the elderly or reserved or designated exclusively for persons with
disabilities. If a resident woman is known to be pregnant, there is
actual knowledge that a child will reside in the dwelling unit.''
It is important to note that a ``dwelling unit reserved for the
elderly,'' or a ``dwelling unit . . . designated exclusively for
persons with disabilities'' differs from a unit's happening to be
occupied by the elderly or by persons with disabilities. A child may be
``expected to reside'' in family housing (i.e., housing available for
general occupancy, meaning that there are no restrictions on the types
of people who may occupy the unit, or, in other words, the unit is
available for occupancy in general to all individuals and families and
is not designated or reserved for any particular category)
[[Page 60315]]
even if there is no child living there at a particular time or even if
an elderly family or a family with one or more persons with
disabilities are the occupants.
When the designated party has this actual knowledge about another
assisted unit in the building or project, that unit would be included
among those that are assessed (unless the designated party had
documented to HUD's satisfaction, compliance with the LSHR
demonstrating that no lead-based paint hazards were likely to be
present in other units) and, if lead-based paint hazards or
deteriorated paint (as applicable) are identified, treated.
The date clearance has passed is used in establishing the deadline
for conducting the evaluation of the other units and the control of
hazards identified, so that the designated party will focus its initial
efforts on the index unit and its associated common areas, in order to
expedite evaluating and, if necessary, controlling lead-based paint
hazards there.
If a family with a child under age 6 moves in to a unit formerly
designated as one in which no children under age 6 were residing or
expected to reside, a risk assessment or visual assessment (as
applicable, based on the type of assistance) must be conducted in
accordance with the current rule. If lead-based paint hazards or
deteriorated paint (as applicable) are found, then, under the current
rule, lead hazard control will be conducted to protect the child's
health.
If the index unit has been found to have lead-based paint hazards,
it is possible that the designated party may not have met the proposed
certain performance requirements under the LSHR. Specifically, under
the LSHR, the designated party is responsible for conducting and
documenting current evaluation, notifications, and disclosure, and,
depending on the type of assistance, may be responsible for conducting
and documenting ongoing lead-based paint maintenance and management
(see Sections II.A.3 and 4, respectively, below).
If the designated party has not met the applicable performance
requirements above, and a child under age 6 with an EBLL resides in a
unit covered by the LSHR that has lead-based paint hazards, HUD is
proposing that the designated party conduct a risk assessment (or
visual assessment, as applicable) in other dwelling units covered by
the LSHR in which children under age 6 reside or are expected to
reside, and the common areas servicing those units. If lead-based paint
hazards or deteriorated paint, as applicable, are found in those other
units, then interim controls or paint stabilization, as applicable must
be conducted, and clearance passed.
If the designated party has met the applicable performance
requirements above, and a child under age 6 with an EBLL resides in a
unit covered by the LSHR, the designated party is encouraged by HUD to
conduct a risk assessment (or visual assessment, as applicable) in
other dwelling units covered by the LSHR, although it would not be
required to do so. When the set of units with children under age 6 has
been identified, if a risk assessment is to be conducted, the
designated party (in typical practice, through its risk assessment
staff or contractor) would select either all of these units (and the
common areas that service them) to assess, or, if the number of units
is large enough (over 20, in pre-1960 housing, and over 10 in 1960-1977
housing), a random sample of units (and of the common areas that
service them) in accordance with the HUD Guidelines, Chapter 7, Section
V.B, Selection of Housing Units, Common Areas, and Exterior Site Areas.
Random sampling for risk assessments is appropriate in the context of
an elevated blood lead level response because it provides ``a
statistically significant degree of confidence about the existence of
lead-based paint hazards,'' in multifamily housing, and ``avoids
questions about the quality of the criteria used for targeting or worst
case sample selection,'' according to the HUD Guidelines, Chapter 5,
Section III.B.1, Targeted, Worst Case, and Random Sampling. This level
of programmatic confidence is particularly important in addressing
housing in which a child has an EBLL.
When the set of units with children under age 6 has been
identified, if visual assessment is to be conducted, the designated
party (in typical practice, through its risk assessment staff or
contractor) would select all of these units (and the common areas that
service them) to assess. The visual assessment procedure is much faster
than the risk assessment procedure, with the trade-off that it provides
less information. Accordingly, conducting a random sample of units and
of common areas is not appropriate in this context of a child under age
6 with an EBLL in the building or project.
However, as under the current LSHR, if the designated party were to
choose not to evaluate the other units covered by the LSHR for lead-
based paint hazards (or deteriorated paint, as applicable), the
designated party would have to presume that lead-based paint hazards
are present in these other units and common areas. This is allowable
because the current LSHR provides, in Sec. Sec. 35.120(a) and (b), for
risk assessments not to be conducted if ``the designated party . . .
presume[s] that lead-based paint or lead-based paint hazards or both
are present throughout the residential property,'' and use standard
treatments on the painted building components and horizontal surfaces,
and HUD is continuing to allow the designated party to use this option.
A designated party may, for example, have staff or contracts in place
to control presumed lead-based paint hazards, if it does not wish to
delay undertaking the control activities.
For target housing units receiving tenant-based rental assistance
in which children under age 6 reside (which are covered by LSHR subpart
M), the legislative history of Title X, as described in the preamble to
the LSHR (64 FR 50139, at 50146), supports that, ``Congress did not
intend for HUD to apply the new minimum procedures set out in section
1012(a) of Title X,'' in particular, risk assessments. However, HUD
does not accept the assumption that ``Congress intended to abolish
HUD's [then] current procedures'' for lead safety evaluation, and those
procedures serve as LSHR's basis for requiring a visual assessment for
deteriorated paint in this housing. Accordingly, HUD is continuing to
allow the approach of using a visual assessment for this housing in the
context of assessing units and common areas other than the index unit
and common areas servicing the index unit.
HUD is proposing that if a risk assessment or a visual assessment
(as applicable) finds lead-based paint hazards or deteriorated paint
(as applicable), or if these hazards or deterioration are presumed to
exist in the other dwelling units with children under age 6 residing or
expected to reside and the common areas servicing those units, then the
approach to controlling them should be the same as for the index unit
and common areas servicing the index unit. For all subparts covered by
this rulemaking the control approach would be interim controls, except
for subpart M on tenant-based rental assistance, and a portion of
subpart H on project-based rental assistance (to units receiving under
$5,000 per unit per year or being single family housing) for which the
approach is paint stabilization. For both, interim controls and paint
stabilization, the control measure would be followed by clearance if
the amount of deteriorated
[[Page 60316]]
paint is above the LSHR's de minimis threshold.\62\
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\62\ HUD. Lead Safe Housing Rule. 24 CFR 35.1350(d). The de
minimis threshold is either: (1) 20 square feet (2 square meters) on
exterior surfaces; 2 square feet (0.2 square meters) in any one
interior room or space; or 10 percent of the total surface area on
an interior or exterior type of component with a small surface area.
Examples include window sills, baseboards, and trim.
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As in the current rule, the designated party would be required to
implement lead hazard control measures promptly, with the period
specified in the applicable subpart of the rule. In housing covered by
the LSHR, for index units, the period for interim controls would be 30
calendar days of receiving the report of the investigation. For other
units covered by the LSHR with children under age 6 residing or
expected to reside, the period would be 30 calendar days for paint
stabilization (as in the current rule at Sec. Sec. 35.720(a)(2) and
35.1215(b)), and a schedule based on the main threshold for multifamily
unit sampling in the HUD Guidelines' chapter 7 as a means of
characterizing a large hazard control project: \63\ Within 30 calendar
days, or within 90 calendar days if more than 20 units each require
lead hazard control work that would disturb painted surfaces that total
more than the de minimis threshold of Sec. 35.1350, Safe work
practices, paragraph (d), De minimis levels,\64\ and, therefore, would
require the work to be done using lead safe work practices and
certified renovation or abatement firms.\65\ Basing the schedule on the
amount of hazard control work to be done recognizes resource
availability limitations when large numbers of units require work. HUD
encourages owners to conduct hazard control work expeditiously,
especially if there are few other units in which work is to be done.
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\63\ Formally, the number of units for which random sampling
provides 95 percent confidence that fewer than 5 percent of units
(or 50 units, for projects of over 1000 units) have lead-based
paint, for lead-based paint inspections, or lead-based paint
hazards, for risk assessments. For up to 20 units, all units are
sampled; for larger numbers of units, only a fraction need be
sampled. (For routine inspections and risk assessments, this
criterion is applied to pre-1960 housing, but that year-of-
construction distinction need not be made in this case, because of
the essential difference that the index unit is known to have lead-
based paint hazards.) See the Guidelines, chapter 7, section V.B.
\64\ ``Safe work practices are not required when maintenance or
hazard reduction activities do not disturb painted surfaces that
total more than: (1) 20 square feet (2 square meters) on exterior
surfaces; (2) 2 square feet (0.2 square meters) in any one interior
room or space; or (3) 10 percent of the total surface area on an
interior or exterior type of component with a small surface area.
Examples include window sills, baseboards, and trim.'' (Reformatted
here.)
\65\ The landlord may be a certified firm. For example, EPA's
Renovation, Repair and Painting Program: Property Managers page
(www.epa.gov/lead/renovation-repair-and-painting-program-property-managers) has the following questions and answers (reformatted
here): ``How can property managers comply with the RRP rule? Do you
or your employees conduct renovation, repair, or painting activities
in a pre-1978 residential building? If yes, then you must become a
Lead-Safe Certified Firm. If no, then hire only a Lead-Safe
Certified firm for building maintenance, repair, or painting
activities that could disturb lead-based paint.''
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See the description of the evaluation and lead-based paint hazard
control approach in Section II.A.1, above, along with the approach to
addressing sources of lead exposure other than lead-based paint
hazards.
3. Documentation of Current Evaluation, Notifications, Disclosure
The LSHR requires, in the applicable subparts of title 24 CFR part
35, that evaluations be conducted for lead-based paint, deteriorated
paint, and/or lead-based paint hazards, i.e., paint-lead, dust-lead and
soil-lead hazards, as applicable to the subpart, and that occupants be
notified of the results of evaluations and hazard reduction activities.
This proposed rule would retain the requirement of notification of
evaluations and hazard reduction activities in accordance with Sec.
35.125, Notice of evaluation and hazard reduction activities, of the
LSHR. That section requires notification within 15 calendar days of
when the designated party receives the evaluation report or the hazard
reduction activities have been completed, to each occupied dwelling
unit affected by the evaluation, presumption, or hazard reduction
activity or serviced by common areas in which it took place.
The implementing provisions in other parts of title 24 CFR
incorporate part 35 by reference, including both the LSHR, in subparts
B-R, and the Lead Disclosure Rule, in subpart A. Disclosure is required
in addition to notification. Note that any lead-based paint hazards
identified by a risk assessment or environmental investigation, and the
results of any lead hazard control work, must, under the Lead
Disclosure Rule, be disclosed to prospective tenants and buyers, and to
current tenants before lease renewal. See HUD's Lead Disclosure Rule
Web site at www.hud.gov/lead. Note also that HUD's Lead Disclosure Rule
is substantively identical to EPA's Lead Disclosure Rule at 40 CFR part
745 subpart F; see EPA's Real Estate Disclosure Web site at https://www2.epa.gov/lead/real-estate-disclosure/.
HUD is proposing that, if the designated party has not complied
with these requirements in the 12 months ending on the date the owner
received the environmental investigation report, or if it has not
provided the HUD field office documentation demonstrating compliance,
the designated party must conduct the evaluation and, if applicable,
hazard reduction requirements in the other assisted dwelling units with
children under age 6 and common areas serving them, as described in
Section II.A.2, above. Note that, under rules pertaining to the type of
assistance, HUD may consider taking remedial action under the
assistance contract or agreement as a result of the noncompliance.
4. Documentation of Ongoing Lead-Based Paint Maintenance and Management
Implementation of ongoing lead-based paint management and
maintenance is important in ensuring that, between evaluations, lead-
based paint is maintained properly (such as during day-to-day occupancy
and, in particular, renovation, repair and painting (RRP) work) and
managed properly (such as during rehabilitation and modernization
activities) so that lead-based paint hazards are unlikely to occur.
Each of the five LSHR subparts covering HUD-assisted housing for which
the current rule has an EIBLL requirement also requires ongoing lead-
based paint maintenance. Similarly, when rehabilitation, under subpart
J, Rehabilitation, is conducted in such housing, appropriate lead
hazard control is required, as is the use of properly certified firms
and workers in these activities. Specifically, the LSHR requires
compliance with Federal laws and authorities for all lead-based paint
activities (24 CFR 35.145). This includes the Environmental Protection
Agency's lead-based paint regulations at 40 CFR part 745, such as its
RRP Rule.\66\
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\66\ See, especially, 40 CFR part 745 subpart E, on certified
RRP work practices, and renovation firm and renovator
certifications; subpart L, including conducting certified lead-based
paint inspection, risk assessment and abatement activities,
including clearance examinations when required; and subpart Q, on
State and Indian Tribal certification programs that complement EPA's
certification programs in other parts of the Nation in which EPA
implements the certification program.)
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The designated party may have complied with the evaluation,
notification and disclosure requirements described in Section II.A.3,
above, but not properly maintained and managed lead-based paint, lead
in dust, and lead in soil, or not documented compliance. (Proper
management in this context includes using lead-certified firms and
workers in maintenance and management activities, and achieving
[[Page 60317]]
successful clearances for such activities conducted in accordance with
the LSHR throughout the 12 months ending on the date the owner received
the environmental investigation report.) In such a case of inadequate
or absent documentation, or the designated party's not having provided
the documentation to the HUD field office, HUD is proposing that the
designated party must conduct the evaluation and, if applicable, hazard
reduction requirements in the other dwelling units with children under
age 6 and common areas serving them, as described in Section II.A.3,
above.
B. Effective Date
HUD is proposing a delayed effective date for these regulations
that would be one or more months after the date of publication of the
final rule in the Federal Register. In determining an appropriate
delayed effective date, HUD considered three options: 1 month, 6
months, and 12 months after publication of the final rule.
The argument in favor of a 1 month delayed effective date is based
on Title X (sections 1012 and 1013) requiring the evaluation and
reduction of lead-based paint hazards in housing receiving Federal
assistance and residential property owned by the Federal government.
Under one line of argumentation, any delay beyond the mandatory 30 day
delayed effective date (42 U.S.C. 3535(o)(3)) in implementing
requirements based on the guidance of the federal public health agency
would pose an undue risk to the health of children. The argument for a
longer delayed effective date is that program administrators at all
levels of government, as well as property owners and contractors
performing lead-based paint activities, would not have adequate
education and training time to implement the new criterion and the
associated requirements and procedures required under the proposed
regulation.
Further, the Department recognizes that HUD clients conducting
ongoing program activities will need time to incorporate the revised
requirements for responding to cases of children with elevated blood
lead levels into their programs. As a result, HUD is proposing to delay
the effective date of the final rule for 6 months after publication of
the final rule as a way to allow all parties--lead-based paint
professionals, housing agencies, state and local government agencies,
and private property owners--time to prepare for proper implementation
of the revised requirements. The Department shares the concern of the
public health community that delays in implementing these requirements
may have young children with EBLLs living in certain HUD-assisted
housing where no environmental intervention has taken place spend a
longer amount of time in that housing than the time it takes to control
the lead-based hazard. At the same time, however, it would be
impractical for HUD to establish a 30 day delayed effective date
knowing that the organizational infrastructure necessary to carry it
out would not be fully in place.
Because most of the LSHR went into effect 12 months after its
publication,\67\ and this rulemaking would affect only a small fraction
of the housing covered by the whole LSHR, HUD is proposing that this
rulemaking go into effect sooner than 12 months. More specifically, HUD
believes that a 6 month delayed effective date is sufficient for
designated parties to be informed of the rule's becoming final and to
prepare for taking action if a child residing in the assisted units has
an EIBLL. Most designated parties would not need to take any action in
response to this proposed rule, if adopted, because they will not have
any children under age 6 in programs covered by this rulemaking who
have EBLLs, and those that will need to take action will do so on an
occurrence basis, rather than in the anticipation of a likely EBLL.
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\67\ HUD Lead Safe Housing Rule. 24 CFR 35.105 Effective dates.
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HUD welcomes comments on the length of the proposed delayed
effective date for this rule.
C. Subparts
1. Subpart B--General Lead-Based Paint Requirements and Definitions
for All Programs. This subpart sets out general requirements for
federally owned residential property and housing receiving Federal
assistance.
a. Definitions. HUD is proposing to add two new terms, delete one
term, and revise two terms, in Sec. 35.110, Definitions:
Elevated blood lead level. In this rule, HUD proposes to replace
the EIBLL threshold with the EBLL threshold that is the blood lead
level in children under 6 years of age for which CDC guidance says that
an environmental intervention should be conducted. The EBLL will be
used for determining when environmental interventions are to be taken
under the LSHR.
As discussed in Section I, above, in 2013, CDC revised its guidance
to provide an operational definition of EBLL based on data from NHANES,
and committed to update that definition every four years. Accordingly,
HUD is proposing to add a definition of EBLL so that the term can be
used in the program subparts instead of writing out the full wording of
the definition in each applicable section.
Specifically, elevated blood lead level means a confirmed
concentration of lead in whole blood of a child under age 6 equal to or
greater than the concentration in guidance published by the Department
of Health and Human Services for recommending that an environmental
intervention be conducted.
The entity mentioned in the definition is the Department of Health
and Human Services, rather than CDC, in order to accommodate the
possibility that that Department could choose to have another
organizational unit than CDC announce the updated EBL value, without
HUD having to amend this Rule to reflect that updated value.
HUD is proposing to add a definition that elevated blood lead level
means a confirmed concentration of lead in whole blood of a child under
age 6 equal to or greater than the concentration in the most recent
guidance published by the Department of Health and Human Services on
recommending that an environmental intervention be conducted.
ii. Environmental intervention blood lead level. For the reasons
discussed above in regard to adding the definition of elevated blood
lead level, the term environmental intervention blood lead level is no
longer needed in the program subparts of the LSHR, so HUD is proposing
to delete the definition of environmental intervention blood lead
level. This proposed rule replaces the term environmental intervention
blood lead level with the term elevated blood level throughout the
LSHR.
iii. Environmental investigation. For purposes of clarity, brevity,
and consistency with CDC's response to ACCLPP, the term environmental
investigation is defined in this proposed regulation the way it is
defined in the HUD Guidelines. Specifically, an environmental
investigation would be defined to mean the process of determining the
source of lead exposure for a child under age 6 with an elevated blood
lead level, consisting of administration of a questionnaire,
comprehensive environmental sampling, case management, and other
measures, in accordance with chapter 16 of the HUD Guidelines for the
Evaluation and Control of Lead-Based Paint Hazards in Housing
(``Guidelines''). With HUD proposing that an environmental
investigation in response to EBLL cases be included in the program
subparts of the LSHR, HUD
[[Page 60318]]
proposes to define the term rather than having to write out its
substance in each applicable section. Accordingly, HUD is proposing to
add a definition that environmental investigation means the process of
determining the source of lead exposure for a child under age 6 with an
elevated blood lead level, consisting of administration of a
questionnaire, comprehensive environmental sampling, case management,
and other measures, as all of these elements are conducted in
accordance with chapter 16 of the HUD Guidelines for the Evaluation and
Control of Lead-Based Paint Hazards in Housing (``Guidelines''). See
preamble Section II.A.1, above, for a summary of the environmental
investigation protocol.
iv. Evaluation. In the current LSHR, an evaluation is a risk
assessment, a lead hazard screen, a lead-based paint inspection, paint
testing, or a combination of these to determine the presence of lead-
based paint hazards or lead-based paint. This proposed rule would add
the term environmental investigation, as discussed above, to the list
of activities that are evaluations. As a result, in accordance with the
LSHR, Sec. 35.125(a), Notice of evaluation or presumption, when an
environmental investigation is conducted in a housing unit or common
area servicing the units, the tenants will be notified of the results.
However, a prohibition against posting a notice of environmental
investigation in centrally located common areas is added to Sec.
35.125(d) for the protection of the privacy of the child and the
child's family or guardians, in accordance with the Health Insurance
Portability and Accountability Act (HIPAA).\68\
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\68\ See the HIPAA in regard to privacy of children and their
families regarding individually identifiable health information.
See, especially HIPAA Sec. 1171, creating 42 U.S.C. 1320d-6,
Wrongful disclosure of individually identifiable health information,
with the definition of the term created at 42 U.S.C. 1320d(6).
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v. Expected to reside. For purposes of clarity, the phrases
``reserved for'' and ``designated exclusively for'' in the current LSHR
are being unified into the single term ``reserved or designated
exclusively for.'' Specifically, ``reserved for the elderly'' in regard
to whether pre-1978 housing is target housing is being revised to
``reserved or designated exclusively for the elderly,'' and
``designated exclusively for persons with disabilities'' is being
revised to ``reserved or designated exclusively for persons with
disabilities.'' Certain housing laws and HUD regulations use one or the
other phrase.\69\ Using a unified term eliminates possible confusion
about the applicability of the exemption based on the statutory or
regulatory history of the type of assistance to a property, allowing
HUD and designated parties to focus on the current status of the
assistance.
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\69\ See, e.g., 42 U.S.C. 1437e, Designated housing for elderly
and disabled families, 24 CFR 880.612a(d)(1), which mentions vacant
units ``reserved for elderly families;'' and 24 CFR 945.105, in
which ``Mixed population project means a public housing project
reserved for elderly families and disabled families.''
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2. Subpart D--Project-Based Assistance Provided by a Federal Agency
Other Than HUD. This subpart sets out minimum requirements, consistent
with section 1012 of Title X, for Federal agencies other than HUD that
have housing programs that provide more than $5,000 of project-based
assistance per unit per year to a target housing property.
This subpart currently requires specific actions in response to a
child with an environmental intervention blood lead level in Sec.
35.325. In addition to revising this section to refer to an elevated
blood lead level, HUD proposes that the change in evaluation method be
updated to reflect the change from risk assessment to environmental
investigation.
HUD is proposing that children under age 6 in this housing be
covered when they live in other units in the building or project.
Specifically, if the environmental investigation of the index unit
identifies any lead-based paint hazards, the owner would generally, as
described below, conduct a risk assessment for other assisted dwelling
units in which a child under age 6 resides or is expected to reside on
the date interim controls are complete, and for the common areas
serving those units. Risk assessments would be conducted within 30
calendar days after receipt of the environmental investigation report
on the index unit if there are 20 or fewer such units, or 60 calendar
days for risk assessments if there are more than 20 such units. If the
risk assessment were to identify lead-based paint hazards, the owner
would have to control the hazards in those units and common areas. The
control work would have to be done within 30 calendar days, or within
90 calendar days if more than 20 units have lead-based paint hazards
such that the control work would disturb painted surfaces that total
more than the de minimis threshold of Sec. 35.1350(d), as discussed in
Section I.A.2, above. These requirements for other units would not
apply if either the owner conducted a risk assessment and conducted
interim controls of identified lead-based paint hazards between the
date the child's blood was last sampled and the date the owner received
the notification of the elevated blood lead level; or if the owner has
documentation of compliance with evaluation, notification, lead
disclosure, ongoing lead-based paint maintenance, and lead-based paint
management requirements under this part throughout the 12 months
preceding the date the owner received the environmental investigation
report, Federal agencies other than HUD would be responsible for
updating their policies under this subpart and implementing them.
3. Subpart H--Project-Based Assistance. This subpart establishes
procedures to eliminate as far as practicable lead-based paint hazards
in residential properties receiving project-based assistance under a
HUD program.
This subpart covers several categories of project-based assistance
programs. Section 35.715 covers project-based assistance to multifamily
properties receiving more than $5,000 per unit per year, and includes a
paragraph (d) on properties that have not yet had a risk assessment
conducted in accordance with paragraph (a). Section 35.720 covers
multifamily properties receiving up to $5,000 per unit per year, and
single family properties. Both sections incorporate the same Sec.
35.730, about a child with an environmental intervention blood lead
level, by reference. HUD is proposing that Sec. 35.730, be revised to
reflect the protocol for addressing elevated blood level cases as
described above.
Regarding other dwelling units in the property covered by this
subpart other than the index unit, HUD is proposing that, if the
environmental investigation report on the index unit identifies lead-
based paint hazards, then, for units in which a child under age 6
resides:
Evaluation (risk assessment (per Sec. 35.715(a)) or
visual assessment (per Sec. 35.720(a)(1)), as applicable) would be
conducted within 30 calendar days after receipt of the environmental
investigation report on the index unit for visual assessments, 30
calendar days for risk assessments if there are 20 or fewer such units,
or 60 calendar days for risk assessments if there are more than 20 such
units. These periods provide promptness while recognizing that more
than one unit may have to be assessed, and the limited availability of
certified risk assessors in some jurisdictions, so that the 15-day
period used in Sec. 35.730(a) for conducting an evaluation on that
one, index, unit may not be sufficient for the owner to arrange for
[[Page 60319]]
identifying other units where a child under 6 resides or is expected to
reside, and having the evaluation of those other units conducted. HUD
encourages owners to conduct these evaluations expeditiously,
especially if there are a small number of other units to be evaluated.
Hazard control work be completed in these other units on a
schedule described above: within 30 calendar days, or within 90
calendar days if more than 20 units have lead-based paint hazards such
that the control work would disturb painted surfaces that total more
than the de minimis threshold of Sec. 35.1350(d). HUD encourages
owners to conduct hazard control work expeditiously, especially if
there are few other units in which work is to be done.
As noted above, to enable prompt HUD monitoring of implementation
of the evaluation and hazard control procedures under this subpart when
an EBLL case has occurred, HUD is proposing that the designated party
notify the HUD field office and HUD's OLHCHH within 5 business days of
being so notified by the public health department or medical health
care professional.
It should be noted that CDC used the terms ``multi-family housing''
and ``housing complex'' in its Response to ACCLPP recommendation XI to
refer to a group of buildings, apartments, etc., that are located near
each other and used for a particular purpose, as ``complex'' is
commonly defined in the building context. HUD regulations and program
documents use several terms to refer to such a similar group of
residential buildings, including ``complex,'' ``buildings,''
``apartments,'' and ``project.'' For the sake of uniformity, and to
provide clarity for HUD stakeholders, the HUD synonym ``project'' is
used in this and other subparts of the LSHR outside of quotations from
CDC that use ``complex.''
HUD proposes to make a technical correction to Sec. 35.715, to
redesignate paragraph (d)(4), on blood lead level response, which
requires the response until a risk assessment of a property is
conducted, but does not require a blood lead level response after the
risk assessment is done, as paragraph (e). The current paragraph
numbering inadvertently makes the requirement for the higher level of
assistance in this section less stringent than the requirement for the
lower level of assistance covered by Sec. 35.720. As a result of
correcting this inconsistency, the redesignation would have the
requirement apply to multifamily properties receiving more than $5,000
per unit, whether before or after the risk assessment has been
conducted.
4. Subpart I--HUD-Owned and Mortgagee-in-Possession Multifamily
Property. The purpose of this subpart is to establish procedures to
eliminate, as far as practicable, lead-based paint hazards in a HUD-
owned multifamily residential property or a multifamily residential
property for which HUD is identified as mortgagee-in-possession.
This subpart currently requires specific actions in response to a
child with an environmental intervention blood lead level in Sec.
35.830; the requirements are generally the same with respect to risk
assessment, verification, hazard reduction, and reporting requirement
as those for housing receiving project-based rental assistance in Sec.
35.730, discussed in Section II.C.3. The difference is that, because
HUD is the owner of these properties covered by Sec. 35.830, the term
``HUD'' is used here where the wording ``the owner'' is used in Sec.
35.730.
HUD is proposing that Sec. 35.830 be revised to reflect the
protocol for addressing EBLL cases as described above, with the
difference that, because HUD is the owner of these properties, for
specificity, ``HUD'' would be used in Sec. 35.830 rather than the
phrase ``the owner'' that would be used in Sec. 35.730.
As noted above, to enable prompt HUD OLHCHH monitoring of
implementation of the evaluation and hazard control procedures under
this subpart when an EBLL case has occurred, HUD is proposing that the
HUD office managing the property notify the HUD field office and the
OLHCHH within 5 business days of being so notified by the public health
department or medical health care professional.
5. Subpart L--Public Housing Programs. The purpose of this subpart
L is to establish procedures to eliminate, as far as practicable, lead-
based paint hazards in public housing. More formally, public housing is
residential property assisted under the 1937 Act, excluding housing
assisted under section 8 of the 1937 Act. Target housing assisted under
section 8 is covered by subparts D, H, and M of the LSHR, rather than
this subpart L.
This subpart currently requires specific actions in response to a
child with an environmental intervention blood lead level in Sec.
35.1130, which are generally the same as those for housing receiving
project-based rental assistance in Sec. 35.730 of subpart H, discussed
in Section II.C.3, with a difference in terminology and some additional
requirements.
Regarding the terminology, because the public housing agency (PHA)
carries out the lead-based paint functions of owner of the properties
covered by Sec. 35.1130, the term ``PHA'' is used where the term
``owner'' is used in Sec. 35.730. Similarly, ``public housing
development'' is used in this section, where ``dwelling unit to which
this subpart applies'' is used in Sec. 35.730.
HUD is proposing that Sec. 35.1130(e) require that PHAs report
each confirmed (previously labelled ``known,'' and revised to follow
CDC terminology more closely) case of a child with an EBLL to the HUD
field office; in the currently codified rule such reporting is required
for EIBLL cases. As noted above, to enable prompt HUD monitoring of
implementation of the evaluation and hazard control procedures under
this subpart when an EBLL case has occurred, HUD is proposing that the
designated party also notify the OLHCHH within 5 business days of being
so notified by the public health department or medical health care
professional of an EBLL case.
The case of the PHA not completing the hazard reduction required by
Sec. 35.1130, which was not addressed in the original rule, is
addressed here by noting the linkage between the LSHR and the Uniform
Physical Condition Standards (UPCS) at Sec. 5.703, which are
incorporated by reference into the public housing regulations at 24 CFR
part 965. In particular, if the hazard reduction is not completed, the
dwelling unit is not free of lead-based paint hazards, so it is in
violation of Sec. 5.703(f), which among other things, requires that
the housing be free of lead-based paint hazards. The UPCS are
incorporated by reference into the public housing physical condition
standards at Sec. 965.601. The LSHR, including its subpart L, Public
Housing, is also incorporated by reference into the public housing
standards at Sec. 965.701.
Most significantly, current Sec. 35.1130(f) establishes
requirements for PHAs regarding other units in the building with the
index unit if the risk assessment of the index unit and common areas
servicing the index unit identifies lead-based paint hazards but
previous evaluations of the building did not identify lead-based paint
or lead-based paint hazards. In such a case, the PHA is required to
conduct a risk assessment of other units covered by the LSHR in the
building, and interim controls of identified hazards.
HUD is proposing that, generally, if previous evaluations of the
building did identify lead-based paint or lead-based paint hazards, and
the risk assessment
[[Page 60320]]
of the index unit and common areas servicing the index unit identifies
lead-based paint hazards, then, generally, the PHA would conduct a risk
assessment in other dwelling units covered by the LSHR in which a child
under age 6 resides or is expected to reside (and the common areas that
service those units). The risk assessments would have to be conducted
on a schedule described above, within 30 calendar days after receipt of
the environmental investigation report if there are 20 or fewer such
units, or 60 calendar days if there are more such units. If lead-based
paint hazards are found in any of these other units, they would have to
be controlled on a schedule described above, within 30 calendar days,
or within 90 calendar days if more than 20 units have lead-based paint
hazards such that the control work would disturb painted surfaces that
total more than the de minimis threshold of Sec. 35.1350(d). However,
if the PHA has met the applicable performance requirements in Section
II.A.2, above, for conducting current evaluations, notifications,
disclosure, and ongoing lead-based paint maintenance and management in
the 12 months before receiving the report of a child with EBLL in the
index unit, and provides the HUD field office with documentation of its
regulatory compliance, HUD would encourage the PHA to conduct a risk
assessment in other dwelling units covered by the LSHR in which a child
under age 6 resides (and the common areas that service them), although
it would not be required to do so.
HUD is proposing that Sec. 35.1130 be revised to refer to an
elevated blood lead level, and that the section be updated to reflect
the protocol for addressing EBLL cases as described above, with the
differences that, because the PHA is the owner of these properties, for
specificity, ``PHA'' would be used in Sec. 35.1130 rather than the
phrase ``the owner'' that would be used in Sec. 35.730.
HUD is proposing to make a technical correction to Sec.
35.1130(f). The first sentence (which HUD is proposing to redesignate
as Sec. 35.1130(f)(1)) discusses the requirement for the PHA to
conduct interim controls of identified hazards in accordance with the
schedule provided in, according to the currently codified rule, Sec.
35.1120(c). The pertinent schedule in Sec. 35.1120 is, however, in
paragraph (b), not paragraph (c), so HUD proposes to correct the
citation.
6. Subpart M--Tenant-Based Rental Assistance. The purpose of this
subpart is to establish procedures to eliminate as far as practicable
lead-based paint hazards in housing occupied by families receiving
tenant-based rental assistance.
This subpart currently requires specific actions in response to a
child with an environmental intervention blood lead level in Sec.
35.1225, Child with an environmental intervention blood lead level;
similar to those for housing receiving project-based rental assistance
in Sec. 35.730 of subpart H, discussed in Section II.C.3, with a
difference in terminology and some variations in requirements.
Regarding the terminology, because of the variety of HUD assistance
programs covered by this subpart (see Sec. 35.1200(a)), the generic
term ``designated party'' is used where the term ``owner'' is used in
Sec. 35.730 for project-based assisted housing.
As noted above, to enable prompt HUD monitoring of implementation
of the evaluation and hazard control procedures under this subpart when
an EBLL case has occurred, HUD is proposing that the designated party
notify the HUD field office and the OLHCHH within 5 business days of
being so notified by the public health department or medical health
care professional.
Regarding the other tenant-based rental assisted units where a
child less than 6 years is residing or expected to reside in a building
with a tenant-based rental assisted unit with a child less than 6 years
who has an EBLL, as noted in Section II.C.2, above, HUD is proposing
that those other units and common areas servicing them receive a visual
assessment for deteriorated paint. (As noted above, HUD does not have
the discretion to require risk assessments in those other units and
common areas servicing those other units.) The visual assessments would
have to be conducted within 30 calendar days after receipt of the
environmental investigation report. Similarly, the response action,
should deteriorated paint be identified, would be paint stabilization,
a treatment that does not require the quantitative information about
dust-lead and soil-lead levels needed for the full set of interim
control activities that a risk assessment provides. If deteriorated
paint is found in any of these other units, the paint would have to be
stabilized on a schedule described above, within 30 calendar days, or
within 90 calendar days if more than 20 units have deteriorated paint
such that the control work would disturb painted surfaces that total
more than the de minimis threshold of Sec. 35.1350(d). Of course, a
designated party may choose to conduct a risk assessment or
environmental investigation of those other units and common areas, and
conduct interim controls if lead-based paint hazards are identified,
and even conduct that evaluation and hazard control in unassisted units
with children under age 6, and HUD encourages them to do so.
For the sake of clarity regarding target housing occupied by
families receiving tenant-based rental assistance with children under
age 6 in which deteriorated paint has been identified by a visual
assessment, HUD proposes to add a sentence to the end of Sec.
35.1215(b). Regarding a subsequent housing assistance payment (HAP)
contract for the unit (i.e., after the unit is no longer under the
original HAP contract), the added sentence would provide that paint
stabilization must be completed for a family with a child under age 6
to occupy that unit. This would reaffirm the first sentence of
paragraph (b), that, for units to be occupied by a child under age 6,
the owner shall stabilize each deteriorated paint surface before
commencement of assisted occupancy. The placement of this sentence will
strengthening the protection against children under age 6 being lead
poisoned by clarifying the need for paint stabilization before the unit
is occupied by a child under age 6 under a HAP contract.
D. Specific Questions for Comments
While HUD welcomes comments on all aspects of this proposed rule,
HUD is seeking specific comment on the following questions:
1. To facilitate effective HUD monitoring of responses to a case of
an elevated blood lead level, the proposed rule would have designated
parties provide documentation to HUD that the response actions have
been conducted in the child's unit and in all other assisted units with
a child under age 6, or if there are such other units, that the
designated party has been complying with the LSHR for the past 12
months, and need not evaluate those other units.
a. Is this approach sufficient for HUD to effectively monitor
response actions in these cases, and why? Are there areas in which
reporting and oversight could be strengthened?
b. Can the approach to monitoring response actions in these cases
be streamlined while maintaining its effectiveness, and if so, how?
2. Regarding the definition of elevated blood lead level in the
proposed rule, is the definition appropriately protective of the health
of children in assisted housing covered by the rule? Too protective?
Not protective enough? Why?
[[Page 60321]]
3. Regarding the set of types of housing assistance covered by the
proposed rule (i.e., in the covered subparts D, H, I, L, and M), is
this set appropriately protective of the health of children in assisted
housing?
a. If it is too protective, why, and which types of housing
assistance should be removed from the proposed rule?
b. If it is not protective enough, why, which additional type or
types of housing assistance should be included, and how would
sufficient resources be provided to ensure implementation and
monitoring of the rule in that additional assisted housing?
4. If interim controls or abatement in a housing unit takes longer
than 5 calendar days, or if other occupant protection requirements of
24 CFR 35.1345(a)(2) are not met, the occupants of the unit shall be
shall be temporarily relocated before and during hazard reduction
activities.
a. HUD is seeking data on the fraction of lead hazard control
activities that take longer than 5 calendar days, including the type of
activity (e.g., interim control or abatement; the hazard control method
used (e.g., if abatement, component removal, paint stripping,
enclosure, encapsulation, etc.), the extent of the work, the reason
that the activities cannot be completed within 5 calendar days, whether
the housing is a single family, duplex, triplex, quad, or multifamily
housing, whether it is located in an urban, suburban, or rural area,
whether the EPA has authorized the state to administer the applicable
lead certification program (i.e., renovation or abatement), and other
factors that are causing temporary relocation to be required under the
rule.
b. HUD is seeking information on the costs of temporary relocation,
on a per day basis (average amount or day-specific amounts, as is
available), including breakouts of expenses for such categories as
lodging, transportation, meals, and incidental expense amounts, if the
information is available that way, or as lump sum per-day or per
relocation period amounts.
III. Findings and Certifications
Regulatory Review--Executive Orders 12866 and 13563
Under Executive Order 12866 (Regulatory Planning and Review), a
determination must be made whether a regulatory action is significant
and, therefore, subject to review by the Office of Management and
Budget (OMB) in accordance with the requirements of the order.
Executive Order 13563 (Improving Regulations and Regulatory Review)
directs executive agencies to analyze regulations that are ``outmoded,
ineffective, insufficient, or excessively burdensome, and to modify,
streamline, expand, or repeal them in accordance with what has been
learned. Executive Order 13563 also directs that, where relevant,
feasible, and consistent with regulatory objectives, and to the extent
permitted by law, agencies are to identify and consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public.
OMB reviewed this proposed rule under Executive Order 12866
(entitled ``Regulatory Planning and Review''). This rule was determined
to be a ``significant regulatory action,'' as defined in 3(f) of the
order. The docket file is available for public inspection
electronically at Federal eRulemaking Portal at https://www.regulations.gov under the title and docket number of this rule.
Regulatory Impact Assessment
HUD is publishing, concurrently with this proposal, its draft
Regulatory Impact Analysis (RIA) that examines the costs and benefits
of the proposed regulatory action in conjunction with this proposed
rule, organized into three sections: Cost-Benefit Analysis; Sensitivity
Analysis; and Economic Impacts. The RIA is available on-line at: https://www.regulations.gov. The major findings in the RIA are presented in
this summary.
The analysis of net benefits reflects costs and benefits associated
with the first year of hazard evaluation and reduction activities under
the proposed rule. These costs and benefits, however, include the
present value of future costs and benefits associated with first year
hazard reduction activities. For example, the costs associated with
first year activities include the present value of future reevaluation
costs. Similarly, the benefits of first year activities include the
present value of lifetime earnings benefits for children living in or
visiting the affected unit during that first year, and for children
living in or visiting that unit during the second and subsequent years
after hazard reduction activities.
In regard to the discount rate used for this regulatory analysis,
HUD is using both the 3 percent, and the 7 percent discount rates in
accordance with OMB guidance in OMB Circulars A-4 on Regulatory
Analysis,\70\ and A-94 on Guidelines and Discount Rates for Benefit-
Cost Analysis of Federal Programs.\71\ By presenting results using both
3 and 7 percent discount rates, HUD is providing a broad view of costs
and benefits.
---------------------------------------------------------------------------
\70\ https://www.whitehouse.gov/omb/circulars_a004_a-4/.
\71\ https://www.whitehouse.gov/omb/circulars_a094.
---------------------------------------------------------------------------
Employing a 3 percent discount rate of the lifetime earnings
estimates, the RIA concludes that monetized benefits of activities have
a present value of $97.91 million; while first-year costs are $22.17
million. Thus the estimated net benefit is $75.74 million using a 3
percent discount rate. If a 7 percent discount rate is used for
lifetime earnings benefits, the monetized present value of the benefits
of the proposed rule are estimated to be $31.81 million, and estimated
first year costs remain at $22.17 .28 million. The proposed rule would
therefore be seen as having a net benefit of $9.64 million using the 7
percent discount rate. Further, the monetized benefit estimates
represent a lower bound on benefits, as they only account for lifetime
earnings resulting from cognitive impacts on children under age six.
Reductions in lead exposure would be expected to result in additional
health benefits for these children, as well as older children and
adults living in or visiting the housing units addressed by the rule.
Such additional benefits include avoidance of decreased attention,
increased impulsivity, hyperactivity,\72\ impaired hearing, slowed
growth, delayed menarche,\73\
---------------------------------------------------------------------------
\72\ EPA. Integrated Science Assessment for Lead (see fn. 1,
above). 2013. Table ES-1. p. lxxxiii-lxxxvii.
\73\ Selevan SG, Rice DC, Hogan KA, Euling SY, Pfahles-Hutchens
A, Bethel J. Blood lead concentration and delayed puberty in girls.
N Engl J Med. 2003 Apr 17;348(16):1527-36. www.nejm.org/doi/full/10.1056/NEJMoa020880.
---------------------------------------------------------------------------
That the benefit-cost calculation giving lower weight to future
generations shows a smaller net benefit is not surprising, given that
the monetized benefits of the rule pertain to the future earnings of
children under age 6, while the costs pertain to the designated parties
of the housing in which the young children currently reside. As noted
above, the calculation included monetized but not non-monetized quality
of life factors associated with children's lower intelligence, fewer
skills, and reduced education and job potential, and adults' decreased
cognitive function decrements, psychopathological effects (self-
reported symptoms of depression and anxiety), hypertension, coronary
heart disease, blood system effects (decreased red blood cell survival
and function, and altered heme synthesis),
[[Page 60322]]
male reproductive function decrements, among other effects.\74\
---------------------------------------------------------------------------
\74\ EPA. Integrated Science Assessment for Lead (see fn. 1,
above). 2013. Table ES-1. p. lxxxiii-lxxxvii.
---------------------------------------------------------------------------
Paperwork Reduction Act Statement
The number of housing units that would require evaluation, possible
hazard reduction, and/or reporting of EBLL information to HUD would be
changed by the proposed rule. Accordingly, HUD is requesting OMB
approval for revising its information collection request approval to
reflect the change in the burden.
The information collection requirements contained in this rule have
been submitted to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), for
incorporation under existing OMB approval number 2539-0009. In
accordance with the Paperwork Reduction Act of 1995, an agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless the collection displays a currently
valid OMB control number.
Table 1--Requirements for Notification, Evaluation, and Reduction of Lead-Based Paint Hazards in Federally Owned Residential Property and Housing
Receiving Federal Assistance
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Frequency of Total annual Burden hours Total annual Total annual
Information collection respondents response responses per response burden hours cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notice of Evaluation.................................... 6,887 4 27,550 0.175 4,821 $42,819
Notice of Reduction..................................... 6,887 3.17 21,833 0.1 2,183 25,707
Summary Reporting....................................... 6,887 8 55,100 0.1 5,510 59,404
Recordkeeping........................................... 6,887 4 27,550 0.033 909 10,808
EBLL Report............................................. 6,887 4 27,550 1 27,550 278,907
-----------------------------------------------------------------------------------------------
Total or Average.................................... 6,887 23 159,583 5.95 40,974 417,645
--------------------------------------------------------------------------------------------------------------------------------------------------------
In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments
from members of the public and affected agencies concerning the
information collection requirements in this interim rule regarding:
(1) Whether the collection of information is necessary for the
proper performance of the functions of the agency, including whether
the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the
collection of information;
(3) Whether the collection of information enhances the quality,
utility, and clarity of the information to be collected; and
(4) Whether the information collection minimizes the burden of the
collection of information on those who are to respond; including
through the use of appropriate automated collection techniques or other
forms of information technology (e.g., permitting electronic submission
of responses).
Interested persons are invited to submit comments regarding the
information collection requirements in this rule. Under the provisions
of 5 CFR part 1320, OMB is required to make a decision concerning this
collection of information between 30 and 60 days after the publication
date. Therefore, a comment on the information collection requirements
is best assured of having its full effect if OMB receives the comment
within 30 days of the publication date. This time frame does not affect
the deadline for comments to the agency on the interim rule, however.
Comments must refer to the interim rule by name and docket number (FR-
5816-P-01) and must be sent to: HUD Desk Officer, Office of Management
and Budget, New Executive Office Building, Washington, DC 20503, Fax
number: (202) 395-6947.
And
Anna P. Guido, HUD Reports Liaison Officer, Department of Housing
and Urban Development, 451 7th Street SW., Room 4186, Washington, DC
20410.
Interested persons may submit comments regarding the information
collection requirements electronically through the Federal eRulemaking
Portal at https://www.regulations.gov. HUD strongly encourages
commenters to submit comments electronically. Electronic submission of
comments allows the commenter maximum time to prepare and submit a
comment, ensures timely receipt by HUD, and enables HUD to make them
immediately available to the public. Comments submitted electronically
through the https://www.regulations.gov Web site can be viewed by other
commenters and interested members of the public. Commenters should
follow the instructions provided on that site to submit comments
electronically.
The information collection requirements contained in this rule have
been submitted to the Office of Management and Budget under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). HUD has
determined that the following provisions contain information collection
requirements: 24 CFR part 35, subparts D, H, I, L, and M.
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), HUD has reviewed this proposed rule before publication and by
approving it for publication, certifies that the proposed regulatory
requirements would not have a significant economic impact on a
substantial number of small entities, other than those impacts
specifically required to be applied universally by the statute. As
discussed below, the requirements of the proposed rule are applicable
only to a limited and specifically defined portion of the nation's
housing stock. To the extent that the requirements affect small
entities, the impact is generally discussed in the economic analysis
that accompanies this proposed rule.
Specifically, the economic analysis estimated the number of index
units and other assisted units to be evaluated and, possibly, based on
the evaluation, having lead hazard control work done. For each type of
assistance and for all types of assistance together, the economic
analysis also estimated:
The cost per unit of the evaluation (environmental
investigation for index units, and risk assessments or visual
assessment for other units that are assisted and have a child under age
6 residing, as per the current LSHR);
The total cost of the evaluation and hazard control (for
index units, other units, and both); and
[[Page 60323]]
The percentage of units evaluated and possibly, based on
the evaluation results, hazard controlled (again, for index units,
other units, and both).
The estimates are summarized in the table below.
----------------------------------------------------------------------------------------------------------------
HUD Project- USDA Project- All assistance
Public housing based Tenant- based based types
----------------------------------------------------------------------------------------------------------------
Number of index units........... 1,899 1,494 3,383 112 6,887
Average cost per index unit for $2,680 $2,680 $2,680 $2,680 ..............
environmental investigation and
hazard control.................
Cost for index units............ $5,090,047 $4,004,506 $9,066,416 $300,206 $18,461,176
Other assisted units with 8,014 3,783 2,855 284 14,935
children under age 6...........
Average cost per other assisted $615 $615 $260 $615 ..............
housing unit for risk
assessment (or visual
assessment) and hazard control.
Cost for other assisted units... $4,924,470 $2,324,545 $740,829 $174,264 $8,164,108
Total cost...................... $10,014,517 $6,329,051 $9,807,245 $474,471 $26,625,284
Total number of units evaluated 9,913 5,277 6,237 396 21,822
and possibly hazard controlled.
Total number of assisted units.. 1,100,000 1,200,000 2,200,000 286,108 4,786,108
Percent of assisted units 0.90% 0.44% 0.28% 0.14% 0.46%
evaluated and possibly hazard
controlled.....................
----------------------------------------------------------------------------------------------------------------
Among the key results are that:
About 6,887 housing units would have a child under age 6
with a blood lead level that is elevated but not an environmental
intervention blood lead level; these units would be required to have an
environmental investigation and have any lead-based paint hazards
controlled.
About 14,935 other housing units would be evaluated and
have any lead-based paint hazards controlled.
About 0.46 percent of the assisted housing stock covered
by this rulemaking would be evaluated and have any lead-based paint
hazards controlled, specifically, 0.90 percent of the public housing
stock, 0.44 percent of the HUD project-based rental assisted housing
stock, 0.28 percent of the tenant-based rental assisted housing stock,
and 0.14 percent of the U.S. Department of Agriculture (USDA) project-
based rental assisted housing stock.
The total cost of evaluation and control (and the small
amount of temporary relocation of occupants) would be $26.63 million,
including $10.01 million for public housing, $6.33 million for HUD
project-based rental assisted housing, $9.81 million for tenant-based
rental assisted housing, and $286,000 for USDA project-based rental
assisted housing.
Using the 3 percent discount rate, benefits are estimated
at $97.91 million, with net benefits (i.e., benefits less the $22.17
million in costs) estimated at $75.74 million. Using the OMB's 7
percent discount rate, benefits are estimated at $31.81 million, with
costs remaining at $22.17 million, so the net benefits would be $9.65
million.
Regarding index units, for FY 2017, an estimated 1,899
units of public housing, 1,494 units of HUD project-based rental
assisted housing, 3,383 units of tenant-based rental assisted housing,
and 112 units of USDA project-based rental assisted housing have
children under age 6 with EBLLs that are not EIBLLs, that is, children
for whom an environmental investigation and possible (i.e., if hazards
are found) hazard control of their housing unit and common area
servicing it would be newly required under the proposed rule.
Regarding other units to have lead hazard control work
conducted, for FY 2015, there would be an estimated 8,014 units of
public housing, 3,783 units of HUD project-based rental assisted
housing, 3,383 units of tenant-based rental assisted housing, and 112
units of USDA project-based rental assisted housing.
The conservative (i.e., intentionally high, in this
instance) assumption about the properties in which these children
reside is that each of them is a different property (vs. there being
more than one such child in a property); a similarly conservative
assumption about the private entities (i.e., the ones that lease the
project-based and the tenant-based assisted units to the families of
these children) is that all of them are small entities and all have
just one such child (vs. an entity having more than one property with
such a child). The economic analysis used the FY 2017 Congressional
Justifications of the number of housing units assisted by the several
programs: 1,100,000 public housing units, 1,200,000 HUD project-based
units, 2,200,000 tenant-based units, and 286,108 USDA project-based
units. Regarding units other than the index units, a maximum of
approximately 0.73 percent of other public housing units, 0.32 percent
of other HUD project-based units, 0.13 percent of other tenant-based
units, and 0.10 percent of USDA project-based units (overall, 0.31
percent of units in these assistance programs) would be required to
undertake a risk assessment and, possibly, based on the risk
assessment, lead hazard control.
Environmental Impact
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR part 50,
which implement section 102(2)(C) of the National Environmental Policy
Act of 1969 (42 U.S.C. 4332(2)(C)). The Finding of No Significant
Impact is available for public inspection electronically at Federal
eRulemaking Portal at https://www.regulations.gov under the title and
docket number of this rule.
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either imposes substantial direct compliance costs on State and local
governments or is not required by statute, or the rule preempts State
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. This rule will not have federalism
implications and would not impose substantial direct compliance costs
on State and local governments or preempt State law within the meaning
of the Executive Order.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) (UMRA) establishes requirements for federal agencies to
assess the effects of their regulatory actions on State, local, and
tribal governments, and on the private sector. This rule does not
impose any federal mandates on any State, local, or tribal governments,
or on the private sector, within the meaning of UMRA.
List of Subjects in 24 CFR Part 35
Grant programs--housing and community development, Lead poisoning,
Mortgage insurance, Rent subsidies, Reporting and recordkeeping
requirements.
Accordingly, for the reasons stated in the preamble, HUD amends 24
CFR part 35 to read as follows:
[[Page 60324]]
PART 35--LEAD-BASED PAINT POISONING PREVENTION IN CERTAIN
RESIDENTIAL STRUCTURES
0
1. The authority citation for 24 CFR part 35 continues to read as
follows:
Authority: 42 U.S.C. 3535(d), 4821, and 4851.
0
2. In Sec. 35.100, add, in alphabetical order the definitions of
``Elevated blood lead level'', ``Environmental investigations'', revise
the definitions of ``Evaluation'' and ``Expected to reside'' and delete
the definition of ``Environmental intervention blood lead level'', to
read as follows:
Sec. 35.110 Definitions.
Elevated blood lead level means a confirmed concentration of lead
in whole blood of a child under age 6 equal to or greater than the
concentration in the most recent guidance published by the U.S.
Department of Health and Human Services (HHS) on recommending that an
environmental intervention be conducted. (When HHS changes the value,
HUD will publish a notice in the Federal Register, with the opportunity
for public comment, on its intent to apply the changed value to this
part, and, after considering comments, publish a notice on its applying
the changed value to this part.)
* * * * *
Environmental investigation means the process of determining the
source of lead exposure for a child under age 6 with an elevated blood
lead level, consisting of administration of a questionnaire,
comprehensive environmental sampling, case management, and other
measures, in accordance with chapter 16 of the HUD Guidelines for the
Evaluation and Control of Lead-Based Paint Hazards in Housing
(``Guidelines'').
* * * * *
Evaluation means a risk assessment, a lead hazard screen, a lead-
based paint inspection, paint testing, or a combination of these to
determine the presence of lead-based paint hazards or lead-based paint,
or an environmental investigation.
Expected to reside means there is actual knowledge that a child
will reside in a dwelling unit reserved or designated exclusively for
the elderly or reserved or designated exclusively for persons with
disabilities. If a resident woman is known to be pregnant, there is
actual knowledge that a child will reside in the dwelling unit.
* * * * *
0
3. Amend Sec. 35.125 by adding paragraph (c)(4)(iii) to read as
follows:
Sec. 35.125 Notice of evaluation and hazard reduction activities.
* * * * *
(c) * * *
(4) * * *
(iii) However, for the protection of the privacy of the child and
the child's family or guardians, no notice of environmental
investigation shall be posted to any centrally located common area.
Sec. 35.165 Prior evaluation or hazard reduction.
0
4. In Sec. 35.165 amend paragraph (b)(4) by removing the term
``environmental intervention blood level'' wherever it appears and
adding its place the term ``elevated blood lead level''.
0
5. Revise Sec. 35.325 to read as follows:
Sec. 35.325 Child with an elevated blood lead level.
(a) If a child less than 6 years of age living in a federally
assisted dwelling unit has an elevated blood lead level, the owner
shall immediately conduct an environmental investigation. Interim
controls of identified lead-based paint hazards shall be conducted in
accordance with Sec. 35.1330.
(b) Other assisted dwelling units in the property. If the
environmental investigation conducted under paragraph (a) of this
section identifies lead-based paint hazards, the owner shall conduct a
risk assessment for other assisted dwelling units covered by this
subpart in which a child under age 6 resides or is expected to reside
on the date interim controls are complete, and for the common areas
serving those units. The risk assessments would be conducted within 30
calendar days after receipt of the environmental investigation report
on the index unit if there are 20 or fewer such units, or 60 calendar
days for risk assessments if there are more than 20 such units. If the
risk assessment identifies lead-based paint hazards, the owner shall
control the hazards in those units and common areas within 30 calendar
days, or within 90 calendar days if more than 20 units have lead-based
paint hazards such that the control work would disturb painted surfaces
that total more than the de minimis threshold of Sec. 35.1350(d). The
requirements for other assisted dwelling units covered by this subpart
do not apply if:
(1) The owner conducted an environmental investigation and
conducted interim controls of identified lead-based paint hazards
between the date the child's blood was last sampled and the date the
owner received the notification of the elevated blood lead level; or
(2) The owner provides the Federal agency documentation of
compliance with evaluation, notification, lead disclosure, ongoing
lead-based paint maintenance, and lead-based paint management
requirements under this part throughout the 12 months preceding the
date the owner received the environmental investigation report.
(c) Interim controls are complete when clearance is achieved in
accordance with Sec. 35.1340.
(d) The Federal agency shall establish a timetable for completing
environmental investigations and hazard reduction when a child
identified as having an elevated blood lead level is identified.
Sec. 35.715 Multifamily properties receiving more than $5,000 per
unit.
0
6. Amend Sec. 35.715 by:
0
a. Redesignating paragraph (d)(4) as paragraph (e); and
0
b. Removing the term ``environmental intervention blood level'' and
adding in its place ``elevated blood lead level''.
Sec. 35.720 Multifamily properties receiving up to $5,000 per unit,
and single family properties.
0
7. In Sec. 35.720 amend paragraph (c) by removing the term
``environmental intervention blood level'' wherever it appears and
adding in its place ``elevated blood lead level''.
0
8. Revise Sec. 35.730 to read as follows:
Sec. 35.730 Child with an elevated blood lead level.
(a) Environmental investigation. Within 15 calendar days after
being notified by a public health department or other medical health
care provider that a child of less than 6 years of age living in a
dwelling unit to which this subpart applies has been identified as
having an elevated blood lead level, the owner shall complete an
environmental investigation of the dwelling unit in which the child
lived at the time the blood was last sampled and of common areas
servicing the dwelling unit. The requirements of this paragraph apply
regardless of whether the child is or is not still living in the unit
when the owner receives the notification of the elevated blood lead
level. The requirements of this paragraph shall not apply if the owner
conducted an environmental investigation of the unit and common areas
servicing the unit between the date the child's blood was last sampled
and the date when the owner received the notification of the elevated
blood lead level. If the owner conducted a risk assessment of the unit
and common areas servicing the unit during that period, the owner need
not conduct another risk assessment there
[[Page 60325]]
but shall conduct the elements of an environmental investigation not
already conducted during the risk assessment. If a public health
department has already conducted an evaluation of the dwelling unit,
the requirements of this paragraph (a) of this section shall not apply.
(b) Verification. After receiving information from a person who is
not a medical health care provider that a child of less than 6 years of
age living in a dwelling unit covered by this subpart may have an
elevated blood lead level, the owner shall immediately verify the
information with the public health department or other medical health
care provider. If the public health department or provider denies the
request, such as because it does not have the capacity to verify that
information, the owner shall send documentation of the denial to the
HUD rental assistance program manager, who shall make an effort to
verify the information. If the public health department or provider
verifies that the child has an elevated blood lead level, such
verification shall constitute notification, and the owner shall take
the action required in paragraphs (a) and (c) of this section.
(c) Hazard reduction. Within 30 calendar days after receiving the
report of the environmental investigation conducted pursuant to
paragraph (a) of this section or the evaluation from the public health
department, the owner shall complete the reduction of identified lead-
based paint hazards in accordance with Sec. 35.1325 or Sec. 35.1330.
Hazard reduction is considered complete when clearance is achieved in
accordance with Sec. 35.1340 and the clearance report states that all
lead-based paint hazards identified in the environmental investigation
have been treated with interim controls or abatement or the public
health department certifies that the lead-based paint hazard reduction
is complete. The requirements of this paragraph do not apply if the
owner, between the date the child's blood was last sampled and the date
the owner received the notification of the elevated blood lead level,
already conducted an environmental investigation of the unit and common
areas servicing the unit and completed reduction of identified lead-
based paint hazards. If the owner conducted a risk assessment of the
unit and common areas servicing the unit during that period, the owner
is not required to conduct another risk assessment there but shall
conduct the elements of an environmental investigation n not already
conducted during the risk assessment.
(d) If an environmental investigation, evaluation or hazard
reduction is undertaken, each owner shall provide notice to occupants
in accordance with Sec. 35.125.
(e) Reporting requirement. (1) The owner shall report the name and
address of a child identified as having an elevated blood lead level to
the public health department within 5 business days of being so
notified by any other medical health care professional.
(2) The owner shall also report each confirmed case of a child with
an elevated blood lead level to the HUD field office and HUD Office of
Lead Hazard Control and Healthy Homes within 5 business days of being
so notified.
(3) The owner shall provide to the HUD field office documentation
that the designated party has conducted the activities of paragraphs
(a) through (d) of this section, within 10 business days of the
deadline for each activity.
(f) Other assisted dwelling units in the property. (1) If the
environmental investigation conducted pursuant to paragraph (a) of this
section identifies lead-based paint hazards, the owner shall, for other
assisted dwelling units covered by this part in which a child under age
6 resides or is expected to reside on the date hazard reduction under
paragraph (c) of this section is complete, and for the common areas
servicing those units, conduct a risk assessment if the unit
investigated was covered by Sec. 35.715, within 30 calendar days after
receipt of the environmental investigation report if there are 20 or
fewer such other units, or 60 calendar days if there are more than 20
such other units; or conduct a visual assessment if the unit
investigated was covered by Sec. 35.720, within 30 calendar days of
receipt of the environmental investigation report.
(2) Control measures. (i) If the risk assessment conducted under
paragraph (f)(1) of this section identifies lead-based paint hazards,
the owner shall complete the reduction of identified lead-based paint
hazards in accordance with Sec. 35.1325 or Sec. 35.1330 in those
units and common areas within 30 calendar days, or within 90 calendar
days if more than 20 units have lead-based paint hazards such that the
control work would disturb painted surfaces that total more than the de
minimis threshold of Sec. 35.1350(d).
(ii) If the visual assessment conducted under paragraph (f)(1) of
this section identifies deteriorated paint, the owner shall stabilize
the paint in those units and common areas within 30 calendar days, or
within 90 calendar days if more than 20 units have lead-based paint
hazards such that the control work would disturb painted surfaces that
total more than the de minimis threshold of Sec. 35.1350(d).
(3) The owner shall provide to the HUD field office documentation
that the designated party has conducted the activities of paragraph
(f)(1) and (f)(2) of this section, within 10 business days of the
deadline for each activity.
(4) The requirements of this paragraph (f) do not apply if the
property meets any of these conditions:
(i) If the property is covered by Sec. 35.715, the owner conducted
a risk assessment and conducted interim controls of identified lead-
based paint hazards in accordance with Sec. 35.175(b) between the date
the child's blood was last sampled and the date the owner received the
notification of the elevated blood lead level;
(ii) If the property is covered by Sec. 35.720, the owner
conducted a visual assessment and stabilized deteriorated paint (unless
it was determined not to be lead-based paint) identified in accordance
with Sec. 35.720(b)(2) in the other assisted dwelling units and the
common areas serving those units, between the date the child's blood
was last sampled and the date the owner received the notification of
the elevated blood lead level; or
(iii) The owner has documentation of compliance with evaluation,
notification, lead disclosure, ongoing lead-based paint maintenance,
and lead-based paint management requirements under this part throughout
the 12 months preceding the date the owner received the environmental
investigation report pursuant to paragraph (a) of this section; and
(iv) The owner provides to the HUD field office documentation that
it has conducted the activities of paragraphs (f)(4)(i) through (iii)
of this section, within 10 business days of the deadline for each
activity.
(g) HUD encourages the owner to evaluate for sources of lead
exposure in units other than those covered by this subpart, and to
control such sources.
0
9. Revise Sec. 35.830 to read as follows:
Sec. 35.830 Child with an elevated blood lead level.
(a) Environmental investigation. Within 15 calendar days after
being notified by a public health department or other medical health
care provider that a child of less than 6 years of age living in a
dwelling unit owned by HUD (or where HUD is mortgagee-in-possession)
has been identified as having an elevated blood lead level, HUD shall
complete an environmental
[[Page 60326]]
investigation of the dwelling unit in which the child lived at the time
the blood was last sampled and of common areas servicing the dwelling
unit. The requirements of this paragraph apply regardless of whether
the child is or is not still living in the unit when HUD receives the
notification of the elevated blood lead level. The requirements of this
paragraph shall not apply if HUD conducted an environmental
investigation of the unit and common areas servicing the unit between
the date the child's blood was last sampled and the date when HUD
received the notification of the elevated blood lead level. If HUD
conducted a risk assessment of the unit and common areas servicing the
unit during that period, HUD is not required to conduct another risk
assessment there but it shall conduct the elements of an environmental
investigation not already conducted during the risk assessment. If a
public health department has already conducted an evaluation of the
dwelling unit, the requirements of this paragraph shall not apply.
(b) Verification. After receiving information from a person who is
not a medical health care provider that a child of less than 6 years of
age living in a dwelling unit covered by this subpart may have an
elevated blood lead level, HUD shall immediately verify the information
with the public health department or other medical health care
provider. If the public health department or provider denies the
request, such as because it does not have the capacity to verify that
information, the HUD Realty Specialist assigned to that property shall
send documentation of the denial to the HUD Office of Lead Hazard
Control and Healthy Homes, which shall make an effort to verify the
information. If the public health department or provider verifies that
the child has an environmental intervention blood lead level, such
verification shall constitute notification, and HUD shall take the
action required in paragraphs (a) and (c) of this section.
(c) Hazard reduction. Within 30 calendar days after receiving the
report of the environmental investigation conducted pursuant to
paragraph (a) of this section or the evaluation from the public health
department, HUD shall complete the reduction of identified lead-based
paint hazards in accordance with Sec. 35.1325 or Sec. 35.1330. Hazard
reduction is considered complete when clearance is achieved in
accordance with Sec. 35.1340 and the clearance report states that all
lead-based paint hazards identified in the environmental investigation
have been treated with interim controls or abatement or the public
health department certifies that the lead-based paint hazard reduction
is complete. The requirements of this paragraph do not apply if HUD,
between the date the child's blood was last sampled and the date HUD
received the notification of the elevated blood lead level, already
conducted an environmental investigation of the unit and common areas
servicing the unit and completed reduction of identified lead-based
paint hazards. If HUD conducted a risk assessment of the unit and
common areas servicing the unit during that period, it is not required
to conduct another risk assessment there but it shall conduct the
elements of an environmental investigation not already conducted during
the risk assessment.
(d) Notice. If evaluation or hazard reduction is undertaken, each
owner shall provide a notice to occupants in accordance with Sec.
35.125.
(e) Reporting requirement. (1) HUD shall report the name and
address of a child identified as having an elevated blood lead level to
the public health department within 5 business days of being so
notified by any other medical health care professional.
(2) HUD shall also report each confirmed case of a child with an
elevated blood lead level to the HUD Office of Lead Hazard Control and
Healthy Homes within 5 business days of being so notified.
(3) HUD shall provide to the HUD Office of Lead Hazard Control and
Healthy Homes documentation that it has conducted the activities of
paragraphs (a) through (d) of this section, within 10 business days of
the deadline for each activity.
(f) Other assisted dwelling units in the property. (1) If the
environmental investigation conducted pursuant to paragraph (a) of this
section identifies lead-based paint hazards, HUD shall, for other
assisted dwelling units covered by this part in which a child under age
6 resides or is expected to reside on the date hazard reduction under
paragraph (c) of this section, and the common areas servicing those
units, is complete, conduct a risk assessment in accordance with Sec.
35.815 within 30 calendar days after receipt of the environmental
investigation report if there are 20 or fewer such other units, or 60
calendar days if there are more than 20 such other units.
(2) If the risk assessment conducted under paragraph (f)(1) of this
section identifies lead-based paint hazards, HUD shall complete the
reduction of identified lead-based paint hazards in accordance with
Sec. 35.1325 or Sec. 35.1330 in those units and common areas within
30 calendar days, or within 90 calendar days if more than 20 units have
lead-based paint hazards such that the control work would disturb
painted surfaces that total more than the de minimis threshold of Sec.
35.1350(d).
(3) The requirements of this paragraph (f) do not apply if HUD,
between the date the child's blood was last sampled and the date HUD
received the notification of the elevated blood lead level, conducted a
risk assessment in the other assisted dwelling units and the common
areas serving those units, and conducted interim controls of identified
lead-based paint hazards in accordance with Sec. 35.820.
(4) The requirements of this section do not apply if HUD has
documentation of compliance with evaluation, notification, lead
disclosure, ongoing lead-based paint maintenance, and lead-based paint
management requirements under this part throughout the 12 months
preceding the date HUD received the environmental investigation report
pursuant to paragraph (a) of this section.
(5) HUD shall provide to the HUD Office of Lead Hazard Control and
Healthy Homes documentation that it has conducted the activities of
paragraph (f)(1) through (3) of this section, or that it has complied
with the requirements in paragraph (f)(4) of this section, within 10
business days of the deadline for each activity.
(g) Closing. If the closing of a sale is scheduled during the
period when HUD is responding to a case of a child with an elevated
blood lead level, HUD may arrange for the completion of the procedures
required by paragraphs (a) through (d) of this section by the purchaser
within a reasonable period of time.
(h) Extensions. The Assistant Secretary for Housing-Federal Housing
Commissioner or designee may consider and approve a request for an
extension of deadlines established by this section for lead-based paint
inspection, risk assessment, environmental investigation, hazard
reduction, and reporting. Such a request may be considered, however,
only during the first six months during which HUD is owner or
mortgagee-in-possession of a multifamily property.
0
10. Revise Sec. 35.1130 to read as follows:
Sec. 35.1130 Child with an elevated blood lead level.
(a) Environmental investigation. Within 15 calendar days after
being notified by a public health department or other medical health
care provider that a child of less than 6 years of age
[[Page 60327]]
living in a dwelling unit to which this subpart applies has been
identified as having an elevated blood lead level, the PHA shall
complete an environmental investigation of the dwelling unit in which
the child lived at the time the blood was last sampled and of common
areas servicing the dwelling unit. The environmental investigation is
considered complete when the PHA receives the environmental
investigation report. The requirements of this paragraph apply
regardless of whether the child is or is not still living in the unit
when the PHA receives the notification of the elevated blood lead
level. The requirements of this paragraph shall not apply if the PHA
conducted an environmental investigation of the unit and common areas
servicing the unit between the date the child's blood was last sampled
and the date when the PHA received the notification of the elevated
blood lead level. If the PHA conducted a risk assessment of the unit
and common areas servicing the unit during that period, the PHA need
not conduct another risk assessment there but shall conduct the
elements of an environmental investigation not already conducted during
the risk assessment. If a public health department has already
conducted an evaluation of the dwelling unit, the requirements of this
paragraph shall not apply.
(b) Verification. After receiving information from a person who is
not a medical health care provider that a child of less than 6 years of
age living in a dwelling unit covered by this subpart may have an
elevated blood lead level, the PHA shall immediately verify the
information with the public health department or other medical health
care provider. If that department or provider denies the request, such
as because it does not have the capacity to verify that information,
the PHA shall send documentation of the denial to its HUD field office,
who shall make an effort to verify the information. If that department
or provider verifies that the child has an elevated blood lead level,
such verification shall constitute notification, and the housing agency
shall take the action required in paragraphs (a) and (c) of this
section.
(c) Hazard reduction. Within 30 calendar days after receiving the
report of the environmental investigation conducted pursuant to
paragraph (a) of this section or the evaluation from the public health
department, the PHA shall complete the reduction of identified lead-
based paint hazards in accordance with Sec. 35.1325 or Sec. 35.1330.
Hazard reduction is considered complete when clearance is achieved in
accordance with Sec. 35.1340 and the clearance report states that all
lead-based paint hazards identified in the environmental investigation
have been treated with interim controls or abatement or the local or
State health department certifies that the lead-based paint hazard
reduction is complete. The requirements of this paragraph do not apply
if the PHA, between the date the child's blood was last sampled and the
date the PHA received the notification of the elevated blood lead
level, already conducted an environmental investigation of the unit and
common areas servicing the unit and completed reduction of identified
lead-based paint hazards. If the PHA conducted a risk assessment of the
unit and common areas servicing the unit during that period, it is not
required to conduct another risk assessment there but it shall conduct
the elements of an environmental investigation not already conducted
during the risk assessment. If the PHA does not complete the hazard
reduction required by this section, the dwelling unit is in violation
of the standards of 24 CFR 965.601, which incorporates the uniform
physical condition standards of Sec. 5.703(f), including that it be
free of lead-based paint hazards.
(d) Notice of evaluation and hazard reduction. The PHA shall notify
building residents of any evaluation or hazard reduction activities in
accordance with Sec. 35.125.
(e) Reporting requirement. (1) The PHA shall report the name and
address of a child identified as having an elevated blood lead level to
the public health department within 5 business days of being so
notified by any other medical health care professional.
(2) The PHA shall report each confirmed case of a child with an
elevated blood lead level to the HUD field office and the HUD Office of
Lead Hazard Control and Healthy Homes within 5 business days of being
so notified.
(3) The PHA shall provide to the HUD field office documentation
that it has conducted the activities of paragraphs (a) through (d) of
this section, within 10 business days of the deadline for each
activity.
(f) Other units in the property. (1) If the environmental
investigation conducted pursuant to paragraph (a) of this section
identifies lead-based paint hazards, the PHA shall conduct a risk
assessment of other units of the building covered by this subpart
within 30 calendar days after receipt of the environmental
investigation report if there are 20 or fewer such other units, or 60
calendar days if there are more than 20 such other units, and shall
complete the reduction of identified lead-based paint hazards in
accordance with Sec. 35.1325 or Sec. 35.1330 within 30 calendar days,
or within 90 calendar days if more than 20 units have lead-based paint
hazards such that the control work would disturb painted surfaces that
total more than the de minimis threshold of Sec. 35.1350(d).
(2) If the environmental investigation conducted pursuant to
paragraph (a) of this section identifies lead-based paint hazards and
previous evaluations of the building conducted pursuant to Sec.
35.1320 identified lead-based paint or lead-based paint hazards, the
PHA shall, for other dwelling units in the property in which a child
under age 6 resides or is expected to reside on the date hazard
reduction under paragraph (c) of this section is complete, and the
common areas serving those units, conduct a risk assessment within 30
calendar days after receipt of the environmental investigation report
if there are 20 or fewer such units, or 60 calendar days if there are
more such units.
(3) Control measures. If the risk assessment conducted under
paragraph (f)(2) of this section identifies lead-based paint hazards,
the PHA shall control the hazards in those units and common areas
within 30 calendar days, or within 90 calendar days if more than 20
units have lead-based paint hazards such that the control work would
disturb painted surfaces that total more than the de minimis threshold
of Sec. 35.1350(d).
(4) The PHA shall provide to the HUD field office documentation
that it has conducted the activities of paragraphs (f)(1) through (3)
of this section, within 10 business days of the deadline for each
activity.
(5) The requirements of this paragraph (f) of this section do not
apply if the PHA, between the date the child's blood was last sampled
and the date the PHA received the notification of the elevated blood
lead level, conducted a risk assessment of the other assisted dwelling
units and the common areas serving those units, and conducted interim
controls of identified hazards in accordance with Sec. 35.1120(b); or
if the PHA has documentation of compliance with evaluation,
notification, lead disclosure, ongoing lead-based paint maintenance,
and lead-based paint management requirements under this part throughout
the 12 months preceding the date the PHA received the environmental
investigation report pursuant to paragraph (a) of this section; and, in
either case, the PHA provided the HUD field office, within 10 business
days after receiving the notification of the elevated blood lead level,
[[Page 60328]]
documentation that it has conducted the activities described in this
paragraph (f)(5) of this section.
(g) HUD encourages the PHA to evaluate for sources of lead exposure
in units other than those covered by this subpart, and to control such
sources.
Sec. 35.1135 Eligible costs.
0
11. Amend Sec. 35.1135(d) by removing the term ``environmental
intervention blood level'' and adding in its place the term ``elevated
blood lead level''.
0
12. Revise Sec. 35.1215(b) as follows:
Sec. 35.1215 Activities at initial and periodic inspection.
* * * * *
(b) * * * For the unit subsequently to come under a HAP contract
with the housing agency for occupancy by a family with a child under
age 6, paint stabilization must be completed, including clearance being
achieved in accordance with Sec. 35.1340.
* * * * *
0
13. Revise Sec. 35.1225 to read as follows:
Sec. 35.1225 Child with an elevated blood lead level.
(a) Within 15 calendar days after being notified by a public health
department or other medical health care provider that a child of less
than 6 years of age living in a dwelling unit to which this subpart
applies has been identified as having an elevated blood lead level, the
designated party shall complete an environmental investigation of the
dwelling unit in which the child lived at the time the blood was last
sampled and of common areas servicing the dwelling unit. When the
environmental investigation is complete, the designated party shall
immediately provide the report of the environmental investigation to
the owner of the dwelling unit. If the child identified as having an
elevated blood lead level is no longer living in the unit when the
designated party receives notification from the public health
department or other medical health care provider, but another household
receiving tenant-based rental assistance is living in the unit or is
planning to live there, the requirements of this section apply just as
they do if the child still lives in the unit. If a public health
department has already conducted an evaluation of the dwelling unit, or
the designated party conducted an environmental investigation of the
unit and common areas servicing the unit between the date the child's
blood was last sampled and the date when the designated party received
the notification of the elevated blood lead level, the requirements of
this paragraph shall not apply. If the designated party or the owner
conducted a risk assessment of the unit and common areas servicing the
unit during that period, the designated party need not conduct another
risk assessment there but shall conduct the elements of an
environmental investigation not already conducted during the risk
assessment.
(b) Verification. After receiving information from a person who is
not a medical health care provider that a child of less than 6 years of
age living in a dwelling unit covered by this subpart may have an
elevated blood lead level, the designated party shall immediately
verify the information with the public health department or other
medical health care provider. If the public health department or
provider denies the request, such as because it does not have the
capacity to verify that information, the designated party shall send
documentation of the denial to the HUD rental assistance program
manager, who shall make an effort to verify the information. If that
department or provider verifies that the child has an elevated blood
lead level, such verification shall constitute notification, and the
designated party shall take the action required in paragraphs (a) and
(c) of this section.
(c) Hazard reduction. Within 30 calendar days after receiving the
report of the environmental investigation from the designated party or
the evaluation from the public health department, the owner shall
complete the reduction of identified lead-based paint hazards in
accordance with Sec. 35.1325 or Sec. 35.1330. Hazard reduction is
considered complete when clearance is achieved in accordance with Sec.
35.1340 and the clearance report states that all lead-based paint
hazards identified in the environmental investigation have been treated
with interim controls or abatement or the public health department
certifies that the lead-based paint hazard reduction is complete. The
requirements of this paragraph do not apply if the designated party or
the owner, between the date the child's blood was last sampled and the
date the designated party received the notification of the elevated
blood lead level, already conducted an environmental investigation of
the unit and common areas servicing the unit and the owner completed
reduction of identified lead-based paint hazards. If the owner does not
complete the hazard reduction required by this section, the dwelling
unit is in violation of the standards of 24 CFR 982.401.
(d) Notice of evaluation and hazard reduction. The owner shall
notify building residents of any evaluation or hazard reduction
activities in accordance with Sec. 35.125.
(e) Reporting requirement. (1) The owner shall report the name and
address of a child identified as having an elevated blood lead level to
the public health department within 5 business days of being so
notified by any other medical health care professional.
(2) The owner shall also report each confirmed case of a child with
an elevated blood lead level to the HUD field office and the HUD Office
of Lead Hazard Control and Healthy Homes within 5 business days of
being so notified.
(3) The owner shall provide to the HUD field office documentation
that it has conducted the activities of paragraphs (a) through (d) of
this section, within 10 business days of the deadline for each
activity.
(f) Other assisted dwelling units in the property. (1) If the
environmental investigation conducted pursuant to paragraph (a) of this
section identifies lead-based paint hazards, the designated party or
the owner shall, for other assisted dwelling units covered by this part
in which a child under age 6 resides or is expected to reside on the
date hazard reduction under paragraph (c) of this section is complete,
and the common areas serving those units, conduct a visual assessment
in accordance with the procedures of Sec. 35.1215(a), within 30
calendar days after receipt of the environmental investigation report
if there are 20 or fewer such units, or 60 calendar days if there are
more such units.
(2) If the visual assessment conducted under paragraph (f)(1) of
this section identifies deteriorated paint, the owner shall stabilize
the paint within 30 calendar days, or within 90 calendar days if more
than 20 units have deteriorated paint such that the control work would
disturb painted surfaces that total more than the de minimis threshold
of Sec. 35.1350(d).
(3) The requirements of this paragraph (f) of this section do not
apply if the designated party or the owner, between the date the
child's blood was last sampled and the date the owner received the
notification of the elevated blood lead level, conducted a visual
assessment or risk assessment in those other assisted dwelling units
and the common areas serving those units, and the owner stabilized
deteriorated paint (unless it was determined not to be lead-based
paint) identified; or if the owner has documentation of compliance with
evaluation, notification, lead disclosure, ongoing lead-based paint
maintenance,
[[Page 60329]]
and lead-based paint management requirements under this part throughout
the 12 months preceding the date the owner received the environmental
investigation report pursuant to paragraph (a) of this section; and, in
either case, the owner provided the HUD field office, within 10
business days after receiving the notification of the elevated blood
lead level, documentation that it has conducted the activities
described in this paragraph (f)(4) of this section.
(g) HUD encourages the designated party or the owner to evaluate
for sources of lead exposure in units other than those covered by this
subpart, and to control such sources.
(h) Data collection and record keeping responsibilities. At least
quarterly, the designated party shall attempt to obtain from the public
health department(s) with area(s) of jurisdiction similar to that of
the designated party the names and/or addresses of children of less
than 6 years of age with an identified elevated blood lead level. At
least quarterly, the designated party shall also report an updated list
of the addresses of units receiving assistance under a tenant-based
rental assistance program to the same public health department(s),
except that the report(s) to the public health department(s) is not
required if the health department states that it does not wish to
receive such report. If it obtains names and addresses of elevated
blood lead level children from the public health department(s), the
designated party shall match information on cases of elevated blood
lead levels with the names and addresses of families receiving tenant-
based rental assistance, unless the public health department performs
such a matching procedure. If a match occurs, the designated party
shall carry out the requirements of this section.
Dated: August 26, 2016.
Michelle Miller,
Deputy Director, Office of Healthy Homes and Lead Hazard Control.
[FR Doc. 2016-20955 Filed 8-31-16; 8:45 am]
BILLING CODE 4210-67-P
