[Federal Register Volume 63, Number 170 (Wednesday, September 2, 1998)]
[Rules and Regulations]
[Pages 46668-46676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23453]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[OPPTS-62158A; FRL-6017-8]
RIN 2070-AD11


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is issuing this final rule to establish fees for the 
accreditation of training programs and certification of contractors 
engaged in lead-based paint activities pursuant to section 402(a)(3) of 
the Toxic Substances Control Act (TSCA). As specified in section 
402(a)(3), EPA must establish and implement a fee schedule to recover 
for the U.S. Treasury the Agency's cost of administering and enforcing 
the standards and requirements applicable to lead-based paint training 
programs and contractors engaged in lead-based paint activities. 
Specifically, this rule establishes the fees to be charged in those 
States and Indian country without authorized programs, for training 
programs seeking accreditation under 40 CFR 745.225, and for 
individuals or firms engaged in lead-based paint activities seeking 
certification under 40 CFR 745.226.
    About three-quarters of the nation's housing stock built before 
1978 (64 million homes) contains some lead-based paint. When properly 
maintained and managed, this paint poses little risk. If improperly 
managed, chips and dust from this paint can create a health hazard. 
Recent studies indicate that nearly one million children have blood-
lead levels above safe limits; the most common source of lead exposure 
in the United States is lead-based paint. Today's rule supports the 
effort of 40 CFR part 745, subpart L to ensure that contractors 
claiming to know how to inspect, assess or remove lead-based paint, 
dust or soil are well qualified, trained and certified to conduct these 
activities.
DATES: This rule is effective October 19, 1998 unless significant 
adverse comments are received by October 2, 1998. If significant 
adverse comments are received in a timely manner, this rule will be 
subsequently withdrawn and notice will be published in the Federal 
Register before the effective date.

ADDRESSES: Comments may be submitted by mail, electronically, or in 
person. Please follow the detailed instructions for each method as 
provided in Unit III of the SUPPLEMENTARY INFORMATION section of this 
preamble.

FOR FURTHER INFORMATION CONTACT: For technical information: Mike 
Wilson, Project Manager, National Program Chemicals Division (7404), 
Office of Pollution Prevention and Toxics, U.S. Environmental 
Protection Agency, 401 M St., SW., Washington, DC 20460; telephone: 
202-260-4664; fax: 202-260-1580; e-mail: [email protected]. For 
general information: Susan B. Hazen, Director, Environmental Assistance 
Division (7408), Rm. ET-543B, Office of Pollution Prevention and 
Toxics, U.S. Environmental Protection Agency, 401 M St., SW., 
Washington, DC 20460; telephone: 202-554-1404, TDD: 202-554-0551; e-
mail: TSCA-H[email protected].
SUPPLEMENTARY INFORMATION:

I. Does this Action Apply to Me?

    You may be potentially affected by this action if you operate a 
training program required to be accredited under TSCA section 402 and 
40 CFR 745.225, or if you are a professional (individual or firm) who 
must be certified to conduct lead-based paint activities in accordance 
with TSCA section 402 and 40 CFR 745.226. Potentially affected 
categories and entities may include:

------------------------------------------------------------------------
                Category                  Examples of Regulated Entities
------------------------------------------------------------------------
Lead abatement professionals...........  Workers, supervisors,          
                                          inspectors, risk assessors and
                                          project designers engaged in  
                                          lead-based paint activities.  
                                         Firms engaged in lead-based    
                                          paint activities.             
Training programs......................  Training programs providing    
                                          training services in lead-    
                                          based paint activities.       
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide to the entities that are likely to be affected by this action. 
This table lists the types of entities that EPA is now aware could 
potentially be affected by this action. Other types of entities not 
listed in this table could also be regulated. To determine whether you 
or your business is regulated by this action, you should carefully 
examine the provisions in the regulatory text. If you have any 
questions regarding the applicability of this action to a particular 
entity, consult the technical person listed in the FOR FURTHER 
INFORMATION CONTACT section.

II. How Can I Get Additional Information or Copies of this or Other 
Support Documents?

A. Electronically

     You may obtain electronic copies of this document and various 
support documents from the EPA Internet Home Page at http://
www.epa.gov/. On the Home Page select ``Laws and Regulations'' and then 
look up the entry for this document under ``Federal Register - 
Environmental Documents.'' You can also go directly to the ``Federal 
Register'' listings at http://www.epa.gov/homepage/fedrgstr/.

B. In Person or by Phone

     If you have any questions or need additional information about 
this action please contact one of the persons identified in the ``FOR 
FURTHER INFORMATION CONTACT'' section. In addition, the official record 
for this action has been established under docket control number 
[OPPTS-62156A], (including comments and data submitted electronically 
as described below). A public version of this record, including 
printed, paper versions of any electronic comments, which does not 
include any information claimed as Confidential Business Information 
(CBI), is available for inspection in Rm. NE B-607, Waterside Mall, 401 
M St., SW., Washington, DC, from 8:30 a.m. to 4 p.m., Monday through 
Friday, excluding legal holidays. The Document Control Office telephone 
number is 202-260-7093.

[[Page 46669]]

III. How Can I Respond to this Action?

A. How and to Whom Do I Submit Comments?

    You may submit comments through the mail, in person, or 
electronically. Be sure to identify the appropriate docket control 
number [OPPTS-62158A] in your correspondence.
    1. By mail. Submit written comments to: Document Control Office 
(7407), Office of Pollution Prevention and Toxics (OPPT), U.S. 
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460.
    2. In person or by courier. Deliver written comments to: Document 
Control Office in Rm. G-099, East Tower, Waterside Mall, 401 M St., 
SW., Washington, DC; telephone: 202-260-7093.
    3. Electronically. Submit your comments and/or data electronically 
by e-mail to: [email protected]. Do not submit any information 
electronically that you consider to be CBI. Submit electronic comments 
in ASCII file format avoiding the use of special characters and any 
form of encryption. Comments and data will also be accepted on standard 
computer disks in WordPerfect 5.1/6.1 or ASCII file format. All 
comments and data in electronic form must be identified by the 
appropriate docket control number. You may also file electronic 
comments and data online at many Federal Depository Libraries.

B. How Should I Handle CBI Information in My Comments?

    You may claim information that you submit in response to this 
action as CBI by marking any part or all of that information as CBI. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2. A copy of the comment that does 
not contain CBI must be submitted for inclusion in the public record. 
All CBI claims must be made at the time the information is submitted. 
Failure to make a CBI claim at the time of submittal will be considered 
a waiver of such claims. Information not marked confidential will be 
included in the public docket by EPA without prior notice. If you have 
any questions about CBI or the procedures for claiming CBI, please 
consult with the technical person identified in the ``FOR FURTHER 
INFORMATION CONTACT'' section.

IV. Under What Legal Authority Is this Action Being Issued?

    EPA is issuing this rule under the authority of section 402 of TSCA 
(15 U.S.C. 2682). Sections 402(a)(1) and (a)(2) require the Agency to 
promulgate regulations for, among other things, the accreditation of 
training programs and the certification of individuals and firms 
engaged in lead-based paint activities. This regulation was published 
in the Federal Register on August, 29 1996 (61 FR 45805-45808)(FRL-
5389-9) and appears at 40 CFR part 745, subpart L. Section 402(a)(3) of 
TSCA requires, with certain exceptions, that the Administrator of EPA 
impose a fee on persons operating accredited training programs and on 
individuals and firms engaged in lead-based paint activities certified 
under TSCA. Section 402(a)(3) requires that the fees be established at 
a level necessary to cover the costs of administering and enforcing the 
standards and regulations under this section. EPA does not have the 
authority to retain fees collected under this program. Therefore, fees 
collected by the Agency will be deposited into the Treasury as required 
by 31 U.S.C. 3302(b).

V. How Does this Action Fit into EPA's Overall Lead Program?

    The Residential Lead-Based Paint Hazard Reduction Act of 1992 
(Title X) amended TSCA by adding a new Title IV. Several sections of 
Title X direct EPA to promulgate regulations aimed at fulfilling the 
purposes of Title X. These include TSCA section 402, Lead-Based Paint 
Activities Training and Certification, which directs EPA to promulgate 
regulations to govern the training and certification of individuals 
engaged in lead-based paint activities, the accreditation of training 
programs, and to establish standards for conducting lead-based paint 
activities. Section 404 of TSCA requires that EPA establish procedures 
for States seeking to establish their own lead-based paint activities 
programs. On August 29, 1996, EPA promulgated final rules that 
implemented sections 402 and 404 of TSCA titled ``Lead; Requirements 
for Lead-Based Paint Activities in Target Housing and Child-Occupied 
Facilities''. These rules are codified at 40 CFR part 745, subpart L. 
Section 402(a)(3) of TSCA directs the Agency to establish fees for the 
accreditation of training programs and certification of individuals and 
firms conducting lead-based paint activities. Today's rule addresses 
this TSCA requirement with respect to entities regulated under part 
745, subpart L. EPA expects to develop additional regulations 
addressing lead-based paint activities for commercial and public 
buildings, and for the disposal of lead-based paint debris. To the 
extent EPA requires additional accreditations or certifications 
pursuant to such rules, additional fee rules may be developed.
    Before EPA began the development of this rule, the Agency consulted 
with States with lead-based paint activities programs, Federal 
officials with experience in operating fee-charging programs, and with 
other interested parties. Over the last several months, the Agency has 
carefully reviewed and considered the information that has been 
provided. While not all of this information has been incorporated into 
this notice, all points of view have been carefully evaluated and many 
of the concepts of the interested parties are reflected in this rule.

VI. Who Will Be Required to Pay Fees Under this Rule?

    The fees in this rule apply to (1) training programs applying to 
EPA for the accreditation and re-accreditation of training courses in 
the following disciplines: inspector; risk assessor; supervisor; 
project designer; abatement worker; and (2) individuals and firms 
seeking certification and re-certification from EPA to engage in lead-
based paint activities in one or more of the above mentioned 
disciplines. Consistent with TSCA section 402(a)(3) and as further 
described in this preamble, this rule precludes the imposition of fees 
for the accreditation of training programs operated by a State, 
federally recognized Indian Tribe, local government, or nonprofit 
organization. This exemption does not apply to the certification of 
firms or individuals.
    This rule applies only in States and Indian country where there are 
no authorized programs pursuant to 40 CFR part 745, subpart Q. For 
further information regarding the authorization status of areas or 
regions of the country contact the National Lead Information Center 
(NLIC) at 1-800-424-LEAD.

VII. What Fee System Is Being Established With this Action?

    As directed by section 402(a)(3) of Title IV of TSCA, EPA is 
establishing fees to recover the costs of administering and enforcing 
the standards and regulations promulgated for the accreditation and 
certification program for lead-based paint activities. TSCA Section 
402(a)(3)(A) precludes EPA from imposing fees for the accreditation of 
training programs operated by a State, local government, or nonprofit 
organization. As discussed below, EPA is also providing an exemption 
for training programs operated by federally recognized Indian Tribes. 
EPA will absorb the cost of exempt participants and will only collect 
operating costs associated with

[[Page 46670]]

non-exempt participants in this program.
    This rule establishes fees for the certification and periodic re-
certification of individuals and firms, and for the accreditation and 
periodic re-accreditation of training programs. Also included are fees 
for examinations, replacement of a lost certificate or identification 
card, and for multi-state registration. The multi-state registration 
fee will apply to individuals and to training programs intending to 
provide training or perform lead-based paint activities in more than 
one State administered by the EPA program. This fee will be applied per 
discipline for each additional EPA- administered State in which the 
applicant seeks certification/re-certification or accreditation/re-
accreditation.
    To develop the accreditation and certification fee levels, EPA 
estimated the demand for accreditation and certification in EPA-
administered areas and the costs of administering and enforcing the 
relevant standards and regulations in these areas. Based on these 
estimates, EPA developed a fee schedule to cover the relevant costs. 
Fees for certification exams, multi-state registration, and 
identification card and certificate replacement were estimated based on 
the burdens required for Agency clerical, technical, and managerial 
staff to perform similar tasks.
    The following are discussions of key decision points regarding 
distribution of cost, fee structure and accreditation fee waivers. For 
each key issue, the alternatives considered by the Agency are 
discussed, the Agency's selection is identified, and a rationale for 
the Agency's decision is presented. For more detailed information 
regarding assumptions and methods used to estimate costs and develop 
the fee structure please refer to the Regulatory Impact Analysis titled 
``Economic Assessment for the TSCA Section 402(a)(3) Lead-Based Paint 
Accreditation and Certification Fees Rule,'' which can be found in the 
docket for this action.

 A. How Will Costs Not Related to Application Processing be 
distributed?

    Not all costs of administration and enforcement are attributable to 
specific applications. Although EPA Regional administrative costs 
depend directly on the number and type of accreditation or 
certification applications received, EPA enforcement and Headquarters 
administrative costs generally cannot be estimated based on the number 
of applications. Accordingly, EPA Regional administrative costs are 
estimated and allocated on a per application basis. The Agency 
evaluated the following two alternatives for allocating EPA enforcement 
costs and Headquarters administrative costs to all entities covered by 
the rule:
    1. Fixed amount per application. In this approach, EPA calculated a 
fixed amount per application by dividing the sum of the cost of all 
enforcement and EPA Headquarters administrative activities over the 5-
year projection period by the estimated number of accreditations, re-
accreditations, certifications, and re-certifications over the same 
period. The same amount of these costs would have been attributed to 
each application.
    2. Fixed ratio of Regional administrative costs to enforcement and 
Headquarters administrative costs. In the second approach, EPA 
calculated a fixed ratio for allocating enforcement and Headquarters 
administrative costs by dividing the sum of these costs by Regional 
administrative costs. The Regional administrative costs for each type 
of accreditation or certification was multiplied by this fixed ratio to 
determine the portion of enforcement and Headquarters administrative 
cost each applicant would pay.
    A comparison of the fee levels shows that they tend to be higher 
for training programs using the fixed ratio approach, and higher for 
individuals using the fixed amount approach. The much higher number of 
individual certifications means that individuals will be attributed 
more of the enforcement and EPA Headquarters administrative costs than 
training programs if a fixed amount is applied. The much higher EPA 
Regional administrative costs per accreditation, in comparison to those 
costs for an individual certification, means that training programs 
will be attributed more of the enforcement and Headquarters 
administrative costs than individuals if a fixed ratio is applied.
    The Agency has chosen the fixed amount approach to distribute fixed 
activity costs. The fixed amount approach was selected because it most 
equitably divides enforcement and headquarters administrative costs 
among program participants. The Agency feels the fixed ratio approach 
by linking enforcement burden to application processing cost unduly 
allocates a larger portion of these costs to training providers.

B. What Types of Fee Structures Were Considered?

    EPA estimated fee levels for two fee structure options: Stratified 
Average Cost and Simplified Average Cost. The Stratified Average Cost 
option estimates fee levels for different types of participants based 
on the administrative burden they impose on government. The Simplified 
Average Cost option estimates average fee levels for broad groups of 
training programs, firms, and individuals and generally does not vary 
according to the relative burden that a fee payer within this larger 
group imposes on the government. The two fee structure options result 
in categories of fees as outlined below:
    1. Stratified Average Cost-- i. Training programs. Fees depend on 
whether the training program is applying for accreditation or re-
accreditation of an initial or refresher training course in each of 
five disciplines. Under this option the estimated accreditation fee and 
the estimated re-accreditation fee for four categories of refresher 
training courses are the same. This occurs since both the EPA Regional 
administrative cost, based on State data, and the fixed ratio applied 
for enforcement and EPA Headquarters administrative costs are estimated 
to be equal for these four categories.
    ii. Firms. Firms are charged a fee only when they apply for 
certification. (Firms are not required to periodically re-certify.) 
This fee does not vary.
    iiii. Individuals. Fees vary by discipline and differ depending on 
whether the individual is applying for initial certification or re-
certification.
    2. Simplified Average Cost-- i. Training programs. Fees do not vary 
by discipline or by initial versus refresher course. Instead, they 
depend on whether the training program is applying for accreditation or 
re-accreditation of a training course, thereby resulting in two 
separate fee levels.
    ii. Firms. Firms are charged a fee only when they apply for 
certification. This fee does not vary.
    iii. Individuals. Fees vary by two groups of disciplines: (a) 
Inspectors, risk assessors, and supervisors and (b) workers and project 
designers. The fees do not depend on whether the individual is applying 
for initial certification or re-certification, thereby resulting in 
only two separate fees.
    The stratified average cost approach results in a wide range of fee 
levels. The Simplified Average Cost approach estimates fee levels by 
calculating an average EPA burden of accreditation or certification. As 
a result, under the Simplified Average Cost approach some training 
programs and individuals have to pay more or less than the actual 
burden incurred by EPA to accredit or certify them. A comparison of 
fees under the two approaches shows that

[[Page 46671]]

some training programs and some individuals could be charged over three 
times as much under the Simplified Average Cost approach. Certification 
fees of firms are not affected, however, since a single fee category is 
estimated for them under both fee structure options.
    The Agency has selected the stratified average cost option to 
determine fee structure. Under this option, fees that more closely 
reflect the administrative burden per application type are imposed. EPA 
believes that the simplified average cost option, while providing a 
simplified fee structure, does not equitably or fairly distribute 
program cost nor accurately reflect the demands on the agency.

C. What Are the Accreditation Fee Waivers?

    Today's rule includes the statutorily-prescribed exemption from 
user fees for training programs operated by State and local 
governments, and non-profit organizations. Title IV of TSCA does not 
address how Indian Tribes should be viewed for purposes of fees, and 
EPA does not believe that Congress considered whether to grant fee 
waivers to Indian Tribes when it specified these exemptions. EPA is 
thus filling a statutory gap in providing a fee waiver for Indian 
Tribes. This is consistent with EPA's view that eligible Indian Tribes 
may operate lead-based paint worker certification and training programs 
in lieu of the Federal government. See 61 FR 45805-45808 (August 29, 
1996). EPA's action in exempting Tribal training programs from the 
requirement to pay user fees recognizes that Tribes are government 
entities that should not be singled out from States and local 
governments for the payment of user fees. Although EPA believes it is 
authorized to provide the fee waiver as a gap-filling measure, EPA 
could, in the alternative, achieve the same result by interpreting the 
term ``local government'' in section 402(a)(3) to include Indian 
Tribes.
    TSCA section 402(a)(3) states that EPA may waive the training 
program accreditation fee for firms for the purpose of training their 
own employees. EPA has decided not to adopt a policy of waiving 
accreditation fees for firms who wish to train their own employees. 
None of the nine States contacted by EPA allow such a waiver under 
their lead accreditation programs. By allowing such a waiver the Agency 
feels that there would be a greater need for enforcement activities to 
ensure only persons who meet training requirements are awarded course 
completion certificates. Also, the availability of training courses for 
small firms and individuals may suffer due to decreased demand for 
these training services. Furthermore, a waiver of this type will 
further increase competitive pressures on for-profit training programs, 
and would diminish returns to the U.S. Treasury.

VIII. How Are the Fees Adjusted for Full Cost Recovery, Inflation, 
and Other Factors?

    EPA will review and modify the fees established by 40 CFR 745.238 
periodically to assure that charges continue to reflect EPA's costs. 
Fees will be evaluated based on the cost to administer and enforce the 
program, and the number of applicants. New fee schedules will be 
published in the Federal Register.

IX. How Do I Pay the Fees?

    Each fee payment described in this rule shall be in U.S. currency 
and shall be paid by check or money order. Individuals, firms or 
training programs shall submit fee payments in accordance with 
instructions provided with the application materials. No application 
will be considered complete until payment is made and final 
certification/accreditation shall be dependent on the payment of the 
applicable fees.

X. How Can I Apply for Accreditation or Certification?

    The application requirements can be found in 40 CFR 745.225 and 
745.226. In addition, the Agency has prepared application packages and 
guidance on applying. This material is available from EPA through the 
National Lead Information Center at 1-800-424-LEAD.

XI. Why Is EPA Issuing this Action as a Final Rule Yet Allowing an 
Opportunity for Public Comment?

    EPA is publishing this action as a final rule without prior notice 
and opportunity to comment because the Agency believes that providing 
notice and an opportunity to comment is unnecessary and would be 
contrary to the public interest. As such, two independent bases exist 
which qualify this action for the ``good cause'' exemption in the 
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B) that allows 
agencies in limited circumstances to issue final rules without first 
providing notice and an opportunity for comment. Virtually all of the 
significant policy choices associated with this rulemaking have already 
been made by Congress, and this rule is in most respects merely a 
technical application of statutory directive.
    There are three major components to the rulemaking. First, the rule 
is based on an estimate of EPA administrative and enforcement costs. 
EPA is clearly in the best position to provide this estimate, as it 
necessarily involves consideration of internal EPA operating 
procedures, costs, and personnel practices. Thus, it is unlikely that 
the public will be able to provide meaningful comment on this aspect of 
the rulemaking.
    Second, the rule reflects a policy choice on how EPA costs are to 
be distributed among those required to pay fees. Although those 
participants paying the highest fees under the rule may prefer that EPA 
flatten the fee structure so that their fees would be reduced, EPA has 
already considered this option and has determined that such an approach 
would be inequitable. In light of EPA's policy choice, the assessment 
of individual fees turns on a technical assessment of EPA 
administrative and enforcement costs for each category of participant. 
Once again, it is unlikely that the public can provide meaningful input 
on EPA's estimates of its own program costs.
    The third component of the rule relates to fee waivers. Although 
the rule largely incorporates statutory directives in this regard (as 
to State and local governments, and non-profit training providers), it 
also provides a fee waiver for Indian Tribes, and specifies that 
contractors training their own employees will not be entitled to a fee 
waiver. Since the fee waiver for Indian Tribes is consistent with the 
statutory waivers provided for States and local governments, is 
consistent with EPA treatment of Indian Tribes for purposes of 
authorizing Tribal lead-based paint programs under 40 CFR 745.320-
745.339, and relieves (rather than imposes) a regulatory requirement, 
EPA does not expect that the public would provide adverse comment on 
the Tribal fee waiver.
    EPA recognizes that there may be some who are dissatisfied by the 
Agency's decision not to waive fees for contractors training their own 
employees, but EPA does not expect that the public can suggest a basis 
for a fee waiver that will override the objective of maximizing 
recovery of EPA costs associated with this program. Thus, EPA believes 
that providing an opportunity for public comment is unnecessary. While 
not required to do so under the APA, EPA is willing to delay the 
effective date of this rule pending the unlikely receipt of significant 
adverse comments that would inform the decision in ways not already 
considered. Such a delay seems

[[Page 46672]]

prudent to avoid the possibility and the resultant confusion, of 
adjusting the fees once the application process has started. If 
significant adverse comment is received during a 30-day period 
(described in more detail below), EPA will issue a notice to withdraw 
those aspects of this final rule which are addressed by the adverse 
comment.
    The Agency is scheduled to begin receiving applications for 
accreditation of training providers in September of 1998. The Agency 
believes that it is critically important for the necessary fees to be 
established prior to the initiation of the application period. Without 
established fees, it will be more difficult for applicants to determine 
the extent to which they may wish to participate in the program. 
Without a fee rule in place, EPA would need to assess fees on a case-
by-case basis, based on actual EPA costs in reviewing individual 
applications and on estimated future administrative and enforcement 
costs. This approach would burden EPA with the requirement of keeping 
track of all time spent processing individual applications. The use of 
a case-by-case assessment would undoubtedly prolong the application 
process and result in uncertainty to potential program applicants who 
would not know the amount of fees they will be required to pay until 
their application is fully processed. Delaying issuance of the rule to 
allow an opportunity for public comment would require issue of the 
case-by-case assessment process in the interim pending finalization of 
a fee rule and would not, therefore, be in the public interest.
    Although the Agency believes that it is appropriate to issue this 
action immediately as a final rule, EPA is providing an opportunity for 
the public to submit comment on it. If no significant adverse comment 
is submitted within 30 days of publication of this rule in the Federal 
Register, this action will become effective 45 days after publication 
in the Federal Register without any further action by the Agency. If, 
however, a significant adverse comment is received during the comment 
period, those aspects of the rule addressed by the commenters will be 
withdrawn and the public comments received will be addressed in a 
subsequent final rule. EPA is today issuing a companion proposed rule 
elsewhere in this issue of the Federal Register to ensure that the 
public is aware of its opportunity to comment, and to provide the APA-
required proposal in the event that significant adverse comment is 
received and issuance of a subsequent final rule is necessary.

XII. How Do Other Regulatory Assessment Requirements Apply to this 
Action?

A. Executive Order 12866

    Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993) it has been determined that this 
is not a ``significant regulatory action'' subject to review by the 
Office of Management and Budget (OMB). EPA has, however, prepared an 
economic analysis of the potential impact of this action, which is 
estimated to be $5.6 million over the next 5 years. The analysis is 
contained in a document entitled ``Economic Analysis of the TSCA 
Section 402(a)(3) Lead-Based Paint Accreditation and Certification Fee 
Rule.'' This document is available as a part of the public record for 
this action and is briefly summarized in Unit VII of this preamble.

B. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), the Agency hereby certifies that this action will 
not have a significant economic impact on a substantial number of small 
entities. As indicated in Unit I. of this preamble, within the EPA-
Administered universe, the potentially affected entities consist of the 
following three basic types of entities: (a) individuals engaged in 
lead-based paint activities; (b) firms engaged in lead-based paint 
activities; and (c) for-profit entities providing lead-based paint 
training. The potential impact of this action on small entities within 
this universe is described in Chapter 6 of the economic analysis, as 
referred to in Unit XII.A. of this preamble.
    In estimating the universe of potentially impacted small entities, 
EPA used the definitions provided by the Small Business Administration 
(SBA). As explained in Unit VII.C. of this preamble, this rule provides 
fee waivers for State and local governments, Indian Tribes and non-
profit organizations that operate a training program for their 
employees. As such, these entities are not affected by this rule. With 
regard to individuals, to the extent that ``individuals'' are in 
business for themselves, EPA considered that entity to be a firm with 
one employee. The analysis assumes that firms are likely to pay all or 
a portion of their employee's certification fees. As a result, the 
small entity impact analysis focuses on the potential impacts on two 
distinct types of affected entities, i.e., firms engaged in lead-based 
paint activities (including individuals in business for themselves), 
and for-profit entities providing lead-based paint training.
    EPA estimates that 1,541 firms engaged in lead-based paint 
activities will be certified during the first five years in the EPA-
administered program universe. Using the revenue distribution for SIC 
1799 and 8734, EPA estimates that approximately 98 percent of these 
firms qualify as ``small'' under the SBA definition for small 
businesses. However, even if the Agency assumes that the firms pay all 
of the certification fees for their employees, the impact is still 
estimated to be less than 1 percent of annual revenues for all of these 
firms.
    Within the EPA-administered program universe, EPA estimates that 
there will be 52 training providers accredited during the first five 
years in the EPA-administered program universe. Of the 52, only 60 
percent of these training providers are estimated to be for-profit 
entities, i.e., required to pay a fee. Using the revenue distribution 
for SIC 1799, EPA estimates that virtually all of these for-profit 
training providers qualify as ``small'' under the SBA definition of 
small business. Although it is estimated that 12 of these 31 fee paying 
for-profit training providers may incur impacts that are slightly 
higher than 3 percent of their revenue, the data also suggests that 
these for-profit training providers have greater revenues than the SIC 
1799 revenue distribution suggests. For example, using the revenue 
distribution of Massachusetts and Ohio training providers, only one of 
the 31 for-profit training providers is estimated to have a potential 
impact of greater than 1 percent of annual sales.
    As indicated above, additional details regarding the Agency's basis 
for this certification are presented in Chapter 6 of the economic 
analysis, which is included in the public record for this action. In 
addition, information relating to this determination will be provided 
to the Chief Counsel for Advocacy of the Small Business Administration 
upon request.

C. Paperwork Reduction Act

    This regulatory action does not contain any information collection 
requirements that require additional approval by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act (PRA), 44 
U.S.C. 3501 et seq. The information collection referenced in this rule 
(i.e., those included in 40 CFR 745.238) have already been approved by 
OMB under control number 2070-0155 (EPA ICR #1715.02). EPA does not 
believe that this rule has any impact on the existing burden estimate 
or collection

[[Page 46673]]

description, such that additional approval by OMB is necessary.
    Specifically, ICR 1715.02 identifies and quantifies the burden 
associated with submission of applications by individuals, firms, and 
training programs. The burden estimates are based on the following 
required submissions:
    1. Firms. A certification letter.
    2.  Training program. An application which includes the following: 
(i) The training programs name, address, and telephone number, (ii) a 
list of courses for which it is applying for accreditation, (iii) a 
statement signed by the training program manager that clearly indicates 
how the training program meets the minimum requirement for 
accreditation, or a statement that indicates that the training program 
will use the EPA developed curriculum if available, (iv) a copy of the 
course test, a description of the activities and procedures for 
conducting the assessment of hands on skills, and a description of the 
facilities and equipment for lecture and hands on training, and (v) a 
quality control plan, which outlines procedures for periodic revision 
of training materials and exams, annual reviews of instructors, and 
adequacy of training facilities.
    3.  Individuals. For supervisors, risk assessors, and inspectors an 
application which includes the submission of proof of: (i) Completion 
of an accredited training course, (ii) passing the course test, (iii) 
meeting the educational and/or experience requirements (if applicable), 
and (iv) passing the third party exam. For project designers and 
abatement workers an application which includes submission of proof of: 
completion of a training course, passing the course test, and meeting 
educational and/or experience requirements (if applicable).
    EPA is in the process of preparing forms to simplify the 
application and notification process. These forms, when complete will 
be forwarded to OMB.
    Under the PRA, ``burden'' means the total time, effort, or 
financial resources expended by persons to generate, maintain, retain, 
or disclose or provide information to or for a Federal Agency. This 
includes the time needed to review instructions; develop, acquire, 
install, and utilize technology and systems for the purposes of 
collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information subject to OMB approval under 
the PRA unless it displays a currently valid OMB control number. The 
OMB control numbers for EPA's regulations, after initial publication in 
the Federal Register, are maintained in a list at 40 CFR part 9.
    Comments may be sent on the Agency's need for this information, the 
accuracy of the provided burden estimates, and any suggested methods 
for minimizing applicant burden, including through the use of automated 
collection techniques. Send comments on the ICR to the EPA at the 
address provided above, with a copy to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th St., NW., 
Washington, DC 20503, marked ``Attention: Desk Officer for EPA.'' 
Please remember to include the ICR number in any correspondence.

D. Unfunded Mandates Reform Act (UMRA)

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA) (Pub. L. 104-4), EPA has determined that this regulatory action 
is not subject to the requirements of sections 202 and 205. The rule 
would not impose an enforceable duty on any State, local or Tribal 
governments because all such entities are exempt from fee payment under 
the rule. The rule is not expected to result in expenditures by the 
private sector of $100 million or more in any given year. This rule 
contains no regulatory requirements that might significantly or 
uniquely affect small governments. Therefore, no action is needed under 
section 203 of the UMRA.

E. Executive Orders 12875 and 13084

    1. Executive Order 12875. Under Executive Order 12875, entitled 
``Enhancing Intergovernmental Partnerships'' (58 FR 58093, October 28, 
1993), EPA may not issue a regulation that is not required by statute 
and that creates a mandate upon a State, local or tribal government, 
unless the Federal government provides the funds necessary to pay the 
direct compliance costs incurred by those governments. If the mandate 
is unfunded, EPA must provide to the Office of Management and Budget 
(OMB) a description of the extent of EPA's prior consultation with 
representatives of affected State, local and tribal governments, the 
nature of their concerns, copies of any written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create an unfunded Federal mandate on State, 
local or tribal governments. The rule does not impose any enforceable 
duties on these entities. As explained in more detail in Unit IV. of 
this preamble, the statutory waivers provided for States and local 
governments are being extended to Indian Tribes. Accordingly, the 
requirements of section 1(a) of Executive Order 12875 do not apply to 
this rule.
    2. Executive Order 13084. Under Executive Order 13084, entitled 
``Consultation and Coordination with Indian Tribal Governments'' (63 FR 
27655, May 19,1998), EPA may not issue a regulation that is not 
required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide OMB, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected and 
other representatives of Indian tribal governments ``to provide 
meaningful and timely input in the development of regulatory policies 
on matters that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. As explained in more detail 
in Unit IV. of this preamble, the statutory waivers provided for States 
and local governments are being extended to Indian Tribes. Accordingly, 
the requirements of section 3(b) of Executive Order 13084 do not apply 
to this rule.

F. Executive Order 12898

    Pursuant to Executive Order 12898, entitled Federal Actions to 
Address

[[Page 46674]]

Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994), the Agency has considered 
environmental justice related issues with regard to the potential 
impacts of this action on the environmental and health conditions in 
low-income and minority communities. The Agency's analysis determined 
that lead-based paint hazards are more prevalent in minority and low-
income households. Therefore, the national strategy of eliminating 
lead-based paint hazards and reducing children's lead exposure targets 
a problem affecting a greater share of minorities and low-income 
households. Because the cost of lead-based paint activities is the same 
for lower-and-upper-income households, several Federal agencies have 
established grant programs that will provide financial support to 
reduce the prevalence of lead poisoning among disadvantaged children. 
However, it appears that minorities and low income households have to 
forego a larger share of their income to reduce children's exposure to 
lead-based paint hazards.

G. Executive Order 13045

    Executive Order 13045 applies to any rule that EPA determines (1) 
is economically significant as defined under Executive Order 12866, and 
(2) addresses an environmental health or safety risk that has a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children; and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. EPA has 
determined that this rule is not subject to Executive Order 13045 
because it is not an economically significant regulatory action as 
defined by Executive Order 12866 (see Unit XII.A. of this preamble). 
Furthermore, although this rule is associated with EPA's overall lead-
based-paint management program which is designed to reduce health risks 
to children, this rule itself simply establishes a user fee schedule 
and does not address environmental health or safety risk.

H. National Technology Transfer and Advancement Act

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

I. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. However, section 808 provides that any rule for which 
the issuing agency for good cause finds (and incorporates the finding 
and a brief statement of reasons therefor in the rule) that notice and 
public procedure thereon are impracticable, unnecessary or contrary to 
the public interest, shall take effect at such time as the agency 
promulgating the rule determines. 5 U.S.C. 808(2). As stated 
previously, EPA has made such a good cause finding, including the 
reasons therefor, and established an effective date of October 19, 
1998. EPA will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. This rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 745

    Environmental Protection, Fees, Hazardous Substances, Lead 
poisoning, Reporting and recordkeeping requirements.

    Dated: August 25, 1998.

Carol M. Browner,

Administrator.
    Therefore, 40 CFR part 745 is amended as follows:

PART 745-- [AMENDED]

    1. The authority citation for part 745 continues to read as 
follows:
    Authority: 15 U.S.C. 2605, 2607, 2615, 2681-2692, and 42 U.S.C. 
4852d.

    2. In Sec. 745.223 by adding the following three new definitions in 
alphabetical order to read as follows:


Sec. 745.223   Definitions.

*    *    *    *    *
    Local government means a county, city, town, borough, parish, 
district, association, or other public body (including an agency 
comprised of two or more of the foregoing entities) created under State 
law.
*    *    *    *    *
     Nonprofit means an entity that has qualified for an exemption from 
Federal taxation under section 501(c)(3) of the Internal Revenue Code, 
26 U.S.C. 501(c)(3).
*    *    *    *    *
    State means any State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
the Canal Zone, American Samoa, the Northern Mariana Islands, or any 
other territory or possession of the United States.
*    *    *    *    *
    3. In Sec. 745.225 by adding paragraph (b)(4) to read as follows:


Sec. 745.225   Accreditation of training programs: target housing and 
child-occupied facilities.

*    *    *    *    *
    (b) * * *
    (4) A training program applying for accreditation must submit the 
appropriate fees in accordance with Sec. 745.238.
*    *    *    *    *
    4. In Sec. 745.226 by adding paragraph (a)(6) to read as follows:


Sec. 745.226  Certification of individuals and firms engaged in lead-
based paint activities: target housing and child-occupied facilities.

    (a) * * *
    (6) Individuals and firms applying for certification must submit 
the appropriate fees in accordance with Sec. 745.238.
*    *    *    *    *
    5. By adding Sec. 745.238 to read as follows:


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

    (a) Purpose. To establish and impose fees for certified individuals 
and firms engaged in lead-based paint activities and persons operating 
accredited training programs under section 402(a) of the Toxic 
Substances Control Act (TSCA).
     (b) Persons who must pay fees. Fees in accordance with paragraph 
(c) of this section must be paid by:

[[Page 46675]]

    (1) Training programs. (i) All non-exempt training programs 
applying to EPA for the accreditation and re-accreditation of training 
programs in one or more of the following disciplines: inspector; risk 
assessor; supervisor; project designer; abatement worker.
    (ii) Exemptions, no fee shall be imposed on any training program 
operated by a State, federally recognized Indian Tribe, local 
government, or nonprofit organization. This exemption does not apply to 
the certification of firms or individuals.
    (2) Firms and individuals. All firms and individuals seeking 
certification and re-certification from EPA to engage in lead-based 
paint activities in one or more of the following disciplines: 
inspector; risk assessor; supervisor; project designer; abatement 
worker.
    (c) Fee amounts--(1) Certification and accreditation fees. Initial 
and renewal certification and accreditation fees are specified in the 
following table:

                                   Certification and Accreditation Fee Levels                                   
----------------------------------------------------------------------------------------------------------------
                                                                         Re-                            Re-     
                                                Accreditation\1\  accreditation\1\  Certification  certification
----------------------------------------------------------------------------------------------------------------
Training program..............................                                                                  
  Initial Course Inspector....................        $2,500            $1,600      .............  .............
  Risk assessor...............................         1,760             1,150      .............  .............
  Supervisors.................................         3,250             2,050      .............  .............
  Workers.....................................         1,760             1,150      .............  .............
  Project designers...........................         1,010               710      .............  .............
---------------------------------------------------------------------------------------------------             
  Refresher Course Inspector..................         1,010               710      .............  .............
  Risk assessor...............................         1,010               710      .............  .............
  Supervisors.................................         1,010               710      .............  .............
  Workers.....................................         1,010               710      .............  .............
  Project designers...........................           640               490      .............  .............
---------------------------------------------------------------------------------------------------             
Individual....................................                                                                  
  Inspector...................................  ................  ................         $520           $420  
  Risk assessor...............................  ................  ................          470            390  
  Supervisor..................................  ................  ................          400            350  
  Worker......................................  ................  ................          360            320  
  Project designer............................  ................  ................          470            390  
------------------------------------------------------------------------------------                            
Firm..........................................  ................  ................          540    .............
----------------------------------------------------------------------------------------------------------------
\1\ Fees will be adjusted periodically based on adjustments accounting for changes in participation and         
  operating costs.                                                                                              

    (2) Certification examination fee. Individuals required to take a 
certification exam in accordance with Sec. 745.226 will be assessed a 
fee of $70 for each exam attempt.
    (3) Multi-state registration fee. An individual or training program 
certified or accredited in an EPA-administered State or Indian Tribe 
may wish to provide training or perform lead-based paint activities in 
additional EPA- administered States or Indian Tribes. A fee of $35 per 
discipline will be assessed for each additional EPA-administered State 
or Indian Tribe in which an individual or training program applies for 
certification/re-certification or accreditation/re-accreditation.
    (4) Lost identification card or certificate. A $15 fee shall be 
charged for replacement of an identification card or certificate. (See 
replacement procedure in paragraph (e) of this section.)
    (d) Application/payment procedure-- (1) Certification and re-
certification in one or more EPA-administered state-- (i) Individuals. 
Submit a completed application (titled ``Application for Individuals to 
Conduct Lead-based Paint Activities''), the materials described at 
Sec. 745.226, and the application fee described in paragraph (c) of 
this section.
    (ii) Firms. Submit a completed application (titled ``Application 
for Firms to Conduct Lead-based Paint Activities''), and the 
application fee described in paragraph (c) of this section.
    (2) Accreditation and re-accreditation in one or more EPA-
administered state. Submit a completed application (titled 
``Accreditation Application for Training Programs''), the materials 
described at Sec. 745.225, and the application fee described in 
paragraph (c) of this section.
    (3) Application forms. Application forms and instructions can be 
obtained from the National Lead Information Center at: 1-800-424-LEAD.
    (e) Identification card replacement and certificate replacement. 
(1) Parties seeking identification card or certificate replacement 
shall complete the applicable portions of the appropriate application 
in accordance with the instructions provided. The appropriate 
applications are:
    (i) Individuals. ``Application for Individuals to Conduct Lead-
based Paint Activities''.
    (ii) Firms. ``Application for Firms to Conduct Lead-based Paint 
Activities''.
    (iii) Training programs. ``Accreditation Application for Training 
Programs''.
    (2) Submit application and payment in the amount specified in 
paragraph (c)(4) of this section in accordance with the instructions 
provided with the application package.
    (f) Adjustment of fees. (1) EPA will collect fees reflecting the 
costs associated with the administration and enforcement of subpart L 
of this part with the exception of costs associated with the 
accreditation of training programs operated by a State, federally 
recognized Indian Tribe, local government, and nonprofit organization. 
In order to do this, EPA will periodically adjust the fees to reflect 
changed economic conditions.
    (2) The fees will be evaluated based on the cost to administer and 
enforce the program, and the number of applicants. New fee schedules 
will be published in the Federal Register.

[[Page 46676]]

    (g) Failure to remit a fee.  (1) EPA will not provide 
certification, re-certification, accreditation, or re-accreditation for 
any individual, firm or training program which does not remit fees 
described in paragraph (c) of this section in accordance with the 
procedures specified in paragraph (d) of this section.
    (2) EPA will not replace identification cards or certificates for 
any individual, firm or training program which does not remit fees 
described in paragraph (c) of this section in accordance with the 
procedures specified in paragraph (e) of this section.

[FR Doc. 98-23453 Filed 8-31-98; 11:24 am]
BILLING CODE 6560-50-F