[Federal Register Volume 63, Number 170 (Wednesday, September 2, 1998)]
[Proposed Rules]
[Pages 46734-46736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23454]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[OPPTS-62158; FRL-6017-7]
RIN 2070-AD11


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

AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.

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SUMMARY: In this issue of the Federal Register, the EPA is publishing a 
final rule, pursuant to section 402(a)(3) of the Toxic Substances 
Control Act (TSCA), to establish fees for the accreditation of training 
programs and certification of individuals and firms engaged in lead-
based paint activities. As specified in TSCA section 402(a)(3), EPA 
must establish and implement a fee schedule to recover for the U.S. 
Treasury the Agency's cost of administering and enforcing the standards 
and requirements applicable to lead-based paint training programs and 
contractors engaged in lead-based paint activities. Specifically, this 
action establishes the fees, in those States and Indian country without 
authorized programs, for training programs seeking accreditation under 
40 CFR 745.225, and for individuals or firms engaged in lead-based 
paint activities seeking certification under 40 CFR 745.226.
    A detailed rationale for the promulgation of this rule is presented 
in the preamble to the final rule, along with the details of the 
action. With this corresponding notice in the Proposed Rules Section of 
this Federal Register, EPA is providing an opportunity for the public 
to submit comment on the provisions of the final rule. If no 
significant adverse comment is submitted in response to this action, 
the final rule will become effective without any further action by the 
Agency. If, however, a significant adverse comment is received during 
the comment period, those aspects of the rule addressed by the 
commenter(s) will be withdrawn and the public comments received will be 
addressed in a subsequent final rule. Any parties interested in 
commenting on this action should do so at this time.
DATES: Comments must be received on or before October 2, 1998.
ADDRESSES: Comments may be submitted by mail, electronically, or in 
person. Please follow the detailed instructions for each method as 
provided below in Unit III. of the SUPPLEMENTARY INFORMATION section of 
this document.
FOR FURTHER INFORMATION CONTACT: For technical information: Mike 
Wilson, Project Manager, National Program Chemicals Division (7404), 
Office of Pollution Prevention and Toxics, U.S. Environmental 
Protection Agency, 401 M St., SW., Washington, DC 20460; telephone: 
202-260-4664; fax: 202-260-1580; e-mail: [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:

------------------------------------------------------------------------
                                                Examples of Regulated   
                 Category                             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-62158], (including comments and data submitted electronically as 
described below). A public version of this record, including printed, 
paper versions of any electronic comments, which does not include any 
information claimed as Confidential Business Information (CBI), is 
available for inspection in Rm. NEB-607, Waterside Mall, 401 M St., 
SW., Washington, DC, from 8:30 a.m. to 4 p.m., Monday through Friday, 
excluding legal holidays. The Document Control Office telephone number 
is 202-260-7093.

III. How Can I Respond to This Action?

A. How and to Whom Do I Submit Comments?

    You may submit comments through the mail, in person, or 
electronically. Be sure to identify the appropriate docket number 
[OPPTS-62158] in your correspondence.
    1.  By mail. Submit written comments to: Document Control Office 
(7407), Office of Pollution Prevention and Toxics (OPPT), U.S. 
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460.
    2. In person or by courier. Deliver written comments to: Document 
Control Office in Rm. G-099, Waterside Mall, 401 M St., SW., 
Washington, DC; telephone: 202-260-7093.
    3. Electronically. Submit your comments and/or data electronically 
by e-mail to: [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.

[[Page 46735]]

 Comment and data will also be accepted on standard computer disks in 
WordPerfect 5.1/6.1 or ASCII file format. All comments and data in 
electronic form must be identified by the appropriate docket control 
number. You may also file electronic comments and data online at many 
Federal Depository Libraries.

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

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

IV. Why Is EPA Issuing a Final Rule Simultaneously With this 
Proposal?

    In this same issue of the Federal Register EPA is publishing a 
final rule identical to this proposal. EPA believes that providing 
notice and an opportunity to comment is unnecessary and would be 
contrary to the public interest. As such, two independent bases exist 
which qualify the final rule for the good cause exemption in the 
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B) that allows 
agencies in limited circumstances to issue rules without first 
providing notice and an opportunity for comment. Virtually all of the 
significant policy choices associated with the rule have already been 
made by Congress, and it is in most respects merely a technical 
application of statutory directive.
    There are three major components to the rulemaking. First, the rule 
is based on an estimate of EPA administrative and enforcement costs. 
EPA is clearly in the best position to provide this estimate, as it 
necessarily involves consideration of internal EPA operating 
procedures, costs, and personnel practices. Thus, it is unlikely that 
the public will be able to provide meaningful comment on this aspect of 
the rulemaking.
    Second, the rule reflects a policy choice on how EPA costs are to 
be distributed among those required to pay fees. Although those 
participants paying the highest fees under the rule may prefer that EPA 
flatten the fee structure so that their fees would be reduced, EPA has 
already considered this option and has determined that such an approach 
would be inequitable. In light of EPA's policy choice, the assessment 
of individual fees turns on a technical assessment of EPA 
administrative and enforcement costs for each category of participant. 
Once again, it is unlikely that the public can provide meaningful input 
on EPA's estimates of its own program costs.
    The third component of the rule relates to fee waivers. Although 
the rule largely incorporates statutory directives in this regard (as 
to State and local governments, and non-profit training providers), it 
also provides a fee waiver for Indian Tribes, and specifies that 
contractors training their own employees will not be entitled to a fee 
waiver. Since the fee waiver for Indian Tribes is consistent with the 
statutory waivers provided for States and local governments, is 
consistent with EPA treatment of Indian Tribes for purposes of 
authorizing Tribal lead-based paint programs under 40 CFR 745.320-
745.339, and relieves (rather than imposes) a regulatory requirement, 
EPA does not expect that the public would provide adverse comment on 
the Tribal fee waiver.
    EPA recognizes that there may be some who are dissatisfied by the 
Agency's decision not to waive fees for contractors training their own 
employees, but EPA does not expect that the public can suggest a basis 
for a fee waiver that will override the objective of maximizing 
recovery of EPA costs associated with this program. Thus, EPA believes 
that providing an opportunity for public comment on the rule is 
``unnecessary.'' While not required to do so under the APA, EPA is 
willing to delay the effective date of the rule pending the unlikely 
receipt of significant adverse comments that would inform the decision 
in ways not already considered. Such a delay seems prudent to avoid the 
possibility and the resultant confusion, of adjusting the fees once the 
application process has started. If significant adverse comment is 
received during the 30-day period (described in more detail below), EPA 
will issue a document to withdraw those aspects of the final rule which 
are addressed by the adverse comment before its effective date.
    The Agency is scheduled to begin receiving applications for 
accreditation of training providers in September of 1998. The Agency 
believes that it is critically important for the necessary fees to be 
established prior to the initiation of the application period. Without 
established fees, it will be more difficult for applicants to determine 
the extent to which they may wish to participate in the program. 
Without a fee rule in place, EPA would need to assess fees on a case-
by-case basis based on actual EPA costs in reviewing individual 
applications and on estimated future administrative and enforcement 
costs. This approach would burden EPA with the requirement of keeping 
track of all time spent processing individual applications. The use of 
a case-by-case assessment would undoubtedly prolong the application 
process and result in uncertainty to potential program applicants who 
would not know the amount of fees they will be required to pay until 
their application is fully processed. Delaying issuance of the rule to 
allow an opportunity for public comment would require use of the case-
by-case assessment process in the interim pending finalization of a fee 
rule and would not, therefore, be in the public interest.
    Although the Agency believes that it is appropriate to issue a 
final fee rule, EPA is providing an opportunity for the public to 
submit comment on it. If no significant adverse comment is submitted 
within 30 days of publication of the final rule in the Federal 
Register, the final rule will become effective 45 days after 
publication without any further action by the Agency. If, however, a 
significant adverse comment is received during the comment period, 
those aspects of the rule addressed by the commenters will be withdrawn 
and the public comments received will be addressed in a subsequent 
final rule. This proposed rule ensures that the public is aware of its 
opportunity to comment, and will provide the APA-required proposal in 
the event that significant adverse comment is received and issuance of 
a subsequent final rule is necessary.

V. What Action Is EPA Taking?

    For detailed information about the action, see the direct final 
rule which is located in the Rules section of this Federal Register, 
and are summarized below.

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VI. Do Executive Orders 12875 and 13084 Require EPA to Consult With 
States and Indian Tribal Governments Prior to Taking the Action in 
this Notice?

A. Executive Order 12875

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

B. Executive Order 13084

    Under Executive Order 13084, entitled ``Consultation and 
Coordination with Indian Tribal Governments'' (63 FR 27655, May 
19,1998), EPA may not issue a regulation that is not required by 
statute, that significantly or uniquely affects the communities of 
Indian tribal governments, and that imposes substantial direct 
compliance costs on those communities, unless the Federal government 
provides the funds necessary to pay the direct compliance costs 
incurred by the tribal governments. If the mandate is unfunded, EPA 
must provide OMB, in a separately identified section of the preamble to 
the rule, a description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. As explained in more detail 
in Unit IV. of this document, the statutory waivers provided for States 
and local governments are being extended to Indian Tribes. Accordingly, 
the requirements of section 3(b) of Executive Order 13084 do not apply 
to this rule.

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

    The applicability of various regulatory assessment provisions to 
this action are discussed in the preamble to the corresponding final 
rule published elsewhere in the Rules section of this issue of the 
Federal Register, and summarized below.
    Under Executive Order 12866, entitled ``Regulatory Planning and 
Review'' (58 FR 51735, October 4, 1993), it has been determined that 
this rule is not ``significant'' and is not subject to OMB review. This 
rule does not contain any information collections subject to OMB 
approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et. 
seq., or impose any enforceable duties on State and local governments 
or impose private sector exependitures of $100 million or more annually 
so as to trigger applicablity of the Unfunded Mandates Reform Act of 
1995 (UMRA) (Pub. L. 104-4). Nor does it require any special 
considerations as required by Executive Order 12898, entitled ``Federal 
Actions to Address Environmental Justice in Minority Populations and 
Low-Income Populations'' (59 FR 7629, February 16, 1994), or require 
OMB review in accordance with Executive Order 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997). In addition, this action does 
not involve any standards that would require Agency consideration 
pursuant to section 12(d) of the National Technology Transfer and 
Advancement Act (NTTAA) (Pub. L. 104-113).
    Pursuant to section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), the Agency hereby certifies that this action will 
not have a significant economic impact on a substantial number of small 
entities. This certification is based on an analysis that the Agency 
prepared for this action, which indicates that the rule should not 
place undue burden on small business. Information relating to this 
determination will be provided to the Chief Counsel for Advocacy of the 
Small Business Administration upon request. This information is also 
included in the public record for this action as a part of the economic 
analysis.

List of Subjects in 40 CFR Part 745

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

    Dated: August 25, 1998.

Carol M. Browner,

Administrator.

[FR Doc. 98-23454 Filed 8-31-98; 11:24 am]
BILLING CODE 6560-50-F