[Federal Register Volume 64, Number 110 (Wednesday, June 9, 1999)]
[Rules and Regulations]
[Pages 31092-31099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14597]



[[Page 31091]]

_______________________________________________________________________

Part VII





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 745



Lead; Fees for Accreditiation of Training Programs and Certification of 
Lead-based Paint Activities Contractors; Final Rule

  Federal Register / Vol. 64, No. 110 / Wednesday, June 9, 1999 / Rules 
and Regulations  

[[Page 31092]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[OPPTS-62158A; FRL-6058-6]
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.

-----------------------------------------------------------------------

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. This final rule is based on a 
proposal published in the Federal Register of September 2, 1998.

DATES: The requirements in this final rule will take effect on June 11, 
1999. In accordance with 40 CFR 23.5, this rule shall be promulgated 
for purposes of judicial review at 1 p.m. Eastern Standard Time on June 
11, 1999.

FOR FURTHER INFORMATION CONTACT: For general information contact: 
Christine M. Augustyniak, Associate Director, Environmental Assistance 
Division (7408), Rm. E-543B, Office of Pollution Prevention and Toxics, 
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460; 
telephone numbers: 202-554-1404 and TDD: 202-554-0551; e-mail address: 
TSCA-H[email protected].
    For technical information contact: Mike Wilson, Project Manager, 
National Program Chemicals Division (7404), Office of Pollution 
Prevention and Toxics, Environmental Protection Agency, 401 M St., SW., 
Washington, DC 20460; telephone number: 202-260-4664; fax number: 202-
260-0770; e-mail address: [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 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 40 CFR 745.226. 
Potentially affected categories and entities may include:

 
------------------------------------------------------------------------
                                                          Examples of
         Type of Entity                SIC Code            Entities
------------------------------------------------------------------------
Lead abatement professionals      1799, 8734          Workers,
                                                       supervisors,
                                                       inspectors, risk
                                                       assessors and
                                                       project designers
                                                       engaged in lead-
                                                       based paint
                                                       activities. Firms
                                                       engaged in lead-
                                                       based paint
                                                       activities.
------------------------------------------------------------------------
Training programs                 1799, 8331, 8742,   Training programs
                                   8748                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 affected. To determine whether you 
or your business is affected by this action, you should carefully 
examine the provisions in 40 CFR part 745. The Standard Industrial 
Classification (SIC) codes that are provided in the table have been 
included to assist you and others in determining whether or not this 
action might apply to certain entities. 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, Including Copies of this 
or Other Related Documents?

A. Electronically

    You may obtain electronic copies of this document and certain other 
available 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

    The Agency has established an official record for this action under 
docket control number OPPTS-62158A. The official record consists of the 
documents specifically referenced in this action, any public comments 
received during an applicable comment period, and other information 
related to this action, including any information claimed as 
confidential business information (CBI). This official record includes 
the documents that are physically located in the docket, as well as the 
documents that are referenced in those documents. The public version of 
the official record does not include any information claimed as CBI. 
The public version of the official record, which includes printed, 
paper versions of any electronic comments submitted during an 
applicable comment period, is available for inspection in the TSCA 
Nonconfidential Information Center, North East Mall Rm. B-607, 
Waterside Mall, 401 M St., SW., Washington, DC. The Center is open from 
12 noon to 4 p.m., Monday through Friday, excluding

[[Page 31093]]

legal holidays. The telephone number of the Center is (202) 260-7099.

III. 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 States or 
Indian Tribes contact the National Lead Information Center (NLIC) at 1-
800-424-LEAD.

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. The regulation titled ``Lead; 
Requirements for Lead-Based Paint Activities in Target Housing and 
Child Occupied Facilities'' was published in the Federal Register of 
August, 29 1996 (61 FR 45805) (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 U.S. Treasury as required by 31 
U.S.C. 3302(b).
    Section 553 of the Administrative Procedure Act (APA) provides that 
most final rules should become effective no sooner than 30 days after 
publication in the Federal Register. The purpose of the 30-day lag time 
is to ``afford persons affected a reasonable time to prepare for the 
effective date of a rule or rules or to take any other action which the 
issuance of rules may prompt.'' Sen. Rep. 752, 79th Cong., 1st sess. at 
p.15. However, the APA also provides that agencies may for ``good 
cause'' make rules effective in less than 30 days. Such good cause 
exists if it is in the interest of the persons affected by the rule 
that it be issued earlier. Attorney General's Manual on the APA at 37. 
EPA is invoking the ``good cause'' exemption in section 553(d)(3) of 
the APA to make this rule effective in less than 30 days because EPA 
believes that the early effective date will allow parties seeking 
certification or accreditation under the rule to receive the benefit of 
earlier EPA action on their applications. This may be particularly 
important to those training programs which have submitted early 
applications for accreditation in States and Tribes where EPA is 
administering the lead program, and which will not be able to offer 
lead-based paint activities training that satisfies EPA requirements 
after March 1, 1999, without EPA accreditation. Those parties wishing 
to defer payment of fees established under this rule may simply defer 
submission of an application to EPA for accreditation or certification.

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. TSCA section 402, 
Lead-Based Paint Activities Training and Certification, 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 and Indian tribes 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, subparts L and Q.
    Section 402(a)(3) of TSCA directs the Agency to establish fees to 
recover the cost of administering and enforcing the lead-based paint 
activities training and certification program. The statute provides an 
exemption from fee payment for training programs operated by a State 
government, local government, or nonprofit organization.
    Today's rule addresses this TSCA requirement with respect to 
entities regulated under part 745, subpart L. 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 registration in 
more than one EPA-administered jurisdiction.
    This rule also provides an exemption from fee payment for training 
programs operated by federally recognized Indian Tribes. As more fully 
described in the proposal for this rule, 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.
    EPA expects to develop additional regulations addressing lead-based 
paint activities for commercial and public buildings, bridges and 
superstructures, renovation and remodeling, 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.

VI. Summary of Proposed Rule and Public Comments

    On September 2, 1998, EPA issued a direct final rule (63 FR 46668) 
(FRL-6017-8), and proposed rule (63 FR 46734) (FRL-6017-7) 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), the proposed rule would have established fees 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, the proposal established 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.

[[Page 31094]]

    In response to the proposal, EPA received 23 letters from the 
public during the comment period. On October 16, 1998, EPA announced 
that it was withdrawing the direct final rule and acting on the 
proposed rule (63 FR 55547) (FRL-6040-1). The Fees for Accreditation of 
Training Programs and Certification of Lead-based Paint Activities 
Contractors Proposal docket (OPPTS-62158) contains the proposal, public 
comments on the proposal, material EPA has added in reply to the public 
comments, and the Regulatory Impact Analysis for the proposed and the 
final rules.
    As indicated above EPA received 23 comments by the close of the 
comment period. The largest number of responses was received from 
public health and environmental protection departments (32% of the 
responses) and lead-based paint activities firms (32% of the 
responses). Other commenters included representatives of lead-based 
paint training programs (14% of the responses) and businesses providing 
both training and consulting services (14% of the responses). A summary 
of all comments received, and EPA's responses, may be found in the 
appropriate sections of this preamble, or in the Response to Comments 
document which is available for public review in the TSCA Docket for 
this rulemaking (see Unit II. of this preamble). The paragraphs that 
follow briefly describe some of the key concerns that were raised by 
the commenters.
    The majority of the comments received raised concerns regarding the 
fee levels. Specifically the concerns include the following: (1) The 
fees will be a disincentive to building a network of qualified trainers 
and abatement professionals; (2) the fees will promote unlawful 
practice; (3) the fees will have a negative impact on programs to train 
low-income persons; (4) worker fees are too high and this is magnified 
by mobility issues; (5) State concerns that the fees do not represent 
true cost; and (6) the fees will increase abatement cost and reduce the 
number of homes for which lead-based paint hazards are abated.
    Several commenters raised concerns regarding the proposed 
provisions allowing fee exemptions for training programs operated by 
State and local governments, federally recognized Indian Tribes, and 
nonprofit organizations. Commenters also addressed the proposed rule's 
effect on small business, the multi-jurisdiction registration fee, the 
proposed one-time firm certification fee, and the inconsistency of 
inspector and risk assessor fees.
    Importantly, EPA received no comments which questioned the overall 
program cost or the manner in which it was derived.

VII. Final Rule Provisions

    In light of the public's comments, the Agency has carefully 
reviewed the proposed rulemaking and identified areas, within the 
Agency's discretion, which have been modified in this final rulemaking 
to respond to public comments. Except for these changes, this final 
rule is as proposed on September 2, 1998. These changes are described 
below.

A. Inconsistency of Risk Assessor and Inspector Fees

    A commenter notes that the Federal fees seem to be inconsistent for 
risk assessors versus inspectors. Since an inspection can be conducted 
not only by a person certified by EPA as an inspector, but also by a 
person certified by EPA as a risk assessor, it would seem appropriate 
that the certification and re-certification fee for the risk assessor 
should be higher than the certification and re-certification fees for 
the inspector.
    Upon review of risk assessor and inspector fees, an error was 
identified in the manner in which the burden determinations were 
applied. This error involved the transposition of numbers associated 
with evaluation factors used in determining the supervisor, risk 
assessor, and inspector fee levels. The Agency has recalculated the 
fees based upon corrected evaluation factors with the following result:

 
------------------------------------------------------------------------
  Lead-based Paint Activities-
           Individual                Certification     Re-certification
------------------------------------------------------------------------
Inspector                         $400                $350
Risk assessor                     $520                $420
Supervisor                        $470                $390
------------------------------------------------------------------------

B. Firm Fee

    EPA received comments regarding the firm fee. The commenters note 
that a one-time fee collected from a firm will do little in future 
fiscal years to recover the costs associated with the firm. 
Furthermore, several commenters do not feel that the proposed fee is 
adequate to recover costs.
    The Agency evaluated the one-time certification fee for firms and 
agrees that it is inadequate to recover costs associated with the firm 
in future years. Therefore, the Agency will charge a fee to maintain a 
firm's certification of $430 every 3 years following initial 
certification to recover the continuing costs associated with the firm. 
This fee will include the established fixed amount to recover 
enforcement and headquarters administrative costs along with the cost 
of additional administrative tasks associated with this fee collection.

C. Worker Fee Levels and Worker Mobility

    EPA received comments which expressed concern that worker fee 
levels are too high. One commenter feels that the total impact of 
training, certification, and lost wages during training for workers is 
cost prohibitive. Another commenter points out that workers are hourly 
wage-earners and cannot afford the fees proposed by EPA.
    Many of the commenters were also concerned that the high fee levels 
are magnified by worker mobility issues which will further drive 
contracting firms costs up. The commenters feel that workers are hired 
for a particular job and laid off at the completion of that job. 
Therefore, workers tend to move from firm to firm and even out of the 
business. The commenters believe that these costs are prohibitive for 
contractor firms and make the cost of employee attrition unmanageable.
    EPA also received comments which raised the issue that the proposed 
fees would have a disproportionately negative impact on efforts to 
train and certify low-income persons from the neighborhoods that are 
most impacted by lead hazards. As one commenter states ``the fees will 
have a chilling effect on community/low-income worker training 
programs.''
    In response to these comments the Agency has decided to adjust the 
program cost distribution as it relates to firms and workers. The 
Agency, in a

[[Page 31095]]

separate determination discussed above, has evaluated the one-time 
certification fee for firms and has determined that it is inadequate to 
recover costs associated with the firm in future years. The Agency will 
charge a fee to maintain a firms certification of $430 every 3 years 
following initial certification. Therefore, the Agency has applied the 
increased revenue generated by the additional firm fee to reduce the 
worker fee level. The worker fee has decreased approximately 22% from 
$360 to $280. This $280 fee for workers provides for a 3- or 5-year 
certification period based upon the type of course completed. This 
translates to an annual cost of between $56 and $94. The worker re-
certification fee was correspondingly lowered to $240.

D. Multi-jurisdiction Registration Fees for Firms

    A commenter noted that firms are not assessed a multi-jurisdiction 
registration fee as are individuals and training providers.
    Upon review of multi-jurisdiction registration fees for firms, an 
omission was found in the text of the proposed rule. The Economic 
Analysis for the rulemaking takes into account multi-jurisdiction 
registration for firms, the proposed rule does not. Therefore, EPA has 
modified the final rule text to include multi-jurisdiction fee 
provisions for firms.

E. Multi-jurisdiction Registration Fees for Indian Country

    EPA received comments which argue that the accreditation and 
certification fees would be a disincentive to building a network of 
qualified trainers and abatement professionals.
    Upon further evaluation it was determined that the multi-
jurisdiction registration fee may cause a negative impact on the 
availability of lead abatement services in Indian Country. The Agency 
feels that the proposed multi-jurisdiction fee may be prohibitive and 
decrease the number of individuals, firms, and training programs 
willing to offer services in Tribes.
    Therefore, the Agency has decided to change the multi-jurisdiction 
registration fee by modifying how the fee relates to Indian Tribes. 
Certification and accreditation to perform lead-based paint activities 
in Indian Tribes without authorized programs will be issued according 
to the boundaries established by the 10 EPA Regions. Therefore, an 
individual, firm, or training program that is certified or accredited 
to provide lead abatement services or training in any unauthorized 
Indian Tribe within a given EPA Region will be able to provide services 
in all unauthorized Indian tribes within the EPA Region. Also, the 
title ``multi-state registration fee'' in the proposed regulatory text 
has been modified to ``multi-jurisdiction fee'' to better reflect the 
nature of the fee.

F. Definition of Nonprofit

    EPA received a comment which questions the adequacy of the proposed 
definition of ``nonprofit.'' The commenter states that labor-management 
sponsored training programs, which are operated as nonprofit entities, 
are for the most part not qualified under 501(c)(3) of the Internal 
Revenue Service (IRS) code.
    EPA notes that Subtitle C of Title X (section 1033), amending the 
Occupational Safety and Health Act of 1970, provides authority to 
provide grants to nonprofit organizations seeking to establish training 
programs. That provision defines nonprofit organizations as including 
colleges and universities, joint labor-management trust funds, states 
and nonprofit government employee organizations. As indicated, this 
statutory language includes labor-management trust funds, many of which 
the commenter notes would not be eligible for fee waivers under the 
proposed rule. It is the Agency's position that the definition of 
nonprofit be refined for purposes of this rulemaking in order to be 
consistent with this related provision.
    In the process of refining the definition of nonprofit, the Agency 
has determined that no single IRS tax exempt classification or group of 
classifications adequately incorporates nonprofit training programs for 
purposes of this rulemaking. Therefore, a more general definition was 
developed which enables the Agency to adequately ensure the nonprofit 
status of an organization without incorporating the constraints of the 
IRS tax exemption classifications. The revised definition reads as 
follows: ``Nonprofit means an entity which has demonstrated to any 
branch of the Federal Government or to a State, municipal, tribal or 
territorial government, that no part of its net earnings inure to the 
benefit of any private shareholder or individual.''

VIII. 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.

IX. 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.

X. How Do the 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 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 version of the official 
record for this action.

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: (1) Individuals engaged in 
lead-based paint activities; (2) firms engaged in lead-based paint 
activities; and (3) 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 X.A. of this preamble.
    In estimating the universe of potentially impacted small entities, 
EPA used the definitions provided by the Small Business Administration 
(SBA). This rule provides fee waivers for training programs operated by 
State and local governments, Indian Tribes, and nonprofit 
organizations. 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

[[Page 31096]]

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 5 years in the EPA- 
administered program universe. Using the revenue distribution for 
Standard Industrial Code (SIC) 1799 and 8734, EPA estimates that 
approximately 98% 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% 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 5 years 
in the EPA-administered program universe. Of the 52, only 60% (31) of 
these training providers are estimated to be for-profit entities that 
will be 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% of their revenue, the data also suggest 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 1 of the 31 for-profit 
training providers is estimated to have a potential impact of greater 
than 1% 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 version of the official 
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). This rule does 
not have any impact on the existing burden estimate or collection 
description, such that additional approval by OMB is necessary.
    The existing Information Collection Request (ICR), identified as 
EPA ICR 1715.02, identifies and quantifies the burden associated with 
the 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).
    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 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, may be submitted to the person listed in the ``FOR FURTHER 
INFORMATION CONTACT'' section at the beginning of this document, 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. This rule 
is not expected to result in expenditures of $100 million or more in 
any given year for State, local and Tribal governments, in the 
aggregate, or for the private sector. 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

    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 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,

[[Page 31097]]

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. Accordingly, the requirements of section 1(a) 
of Executive Order 12875 do not apply to this rule.

F. 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. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

G. Executive Order 12898

    Pursuant to Executive Order 12898, entitled ``Federal Actions to 
Address 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 the fees are not likely to cause 
disproportionate impacts for minority or low-income populations. The 
cost of the fees, even if passed on to consumers, is a small fraction 
of the cost of lead hazard evaluation and abatement projects. Thus, the 
establishment of these fees is not likely to result in fewer lead 
hazard evaluation or abatement activities. In addition, EPA, HUD, and 
State and local organizations have developed programs to help 
disadvantaged communities respond to lead risks.

H. 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 X.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.

I. 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.

J. 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. 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: May 28, 1999.
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 which has demonstrated to any branch of 
the Federal Government or to a State, municipal, tribal or territorial 
government, that no part of its net earnings inure to the benefit of 
any private shareholder or individual.
    *    *    *    *    *
    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.

[[Page 31098]]

    *    *    *    *    *
    3. In Sec. 745.225 by adding paragraphs (b)(4) and (f)(3)(v) 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.
    *    *    *    *    *
    (f) *  *  *
    (3) *  *  *
    (v) A payment of appropriate fees in accordance with Sec.  745.238.
    *    *    *    *    *
    4. In Sec. 745.226 by adding paragraphs (a)(6), (e)(3), (f)(6), and 
(f)(7) 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 applying for certification must submit the 
appropriate fees in accordance with Sec. 745.238.
    *    *    *    *    *
    (e) *  *  *
    (3) Individuals applying for re-certification must submit the 
appropriate fees in accordance with Sec. 745.238.
    *    *    *    *    *
    (f) *  *  *
    (6) Firms applying for certification must submit the appropriate 
fees in accordance with Sec. 745.238.
    (7) To maintain certification a firm shall submit appropriate fees 
in accordance with Sec. 745.238 every 3 years.
    *    *    *    *    *
    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:
    (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-accreditation1
                                                        [every 4 years,
        Training Program            Accreditation1        see 40 CFR
                                                       745.225(f)(1) for
                                                           details]
------------------------------------------------------------------------
Initial Course
  Inspector                       $2,500              $1,600
  Risk assessor                   $1,760              $1,150
  Supervisor                      $3,250              $2,050
  Worker                          $1,760              $1,150
  Project designer                $1,010              $710
------------------------------------------------------------------------
Refresher Course
  Inspector                       $1,010              $710
  Risk assessor                   $1,010              $710
  Supervisor                      $1,010              $710
  Worker                          $1,010              $710
  Project designer                $640                $490
------------------------------------------------------------------------


 
------------------------------------------------------------------------
                                                       Re-certification1
                                                         [every 3 or 5
  Lead-based Paint Activities-      Certification1     years, see 40 CFR
           Individual                                  745.226(e)(1) for
                                                           details]
------------------------------------------------------------------------
Inspector                         $400                $350
Risk assessor                     $520                $420
Supervisor                        $470                $390
Worker                            $280                $240
Project designer                  $470                $390
------------------------------------------------------------------------


 
------------------------------------------------------------------------
                                                         Certification
                                                       Renewal1 [every 3
Lead-based Paint Activities-Firm    Certification1     years, see 40 CFR
                                                       745.226(f)(7) for
                                                           details]
------------------------------------------------------------------------
Firm                              $540                $430
------------------------------------------------------------------------
1Fees will be adjusted periodically based on adjustments accounting for
  changes in participation and operating costs.


[[Page 31099]]

    (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-jurisdiction registration fee. An individual, firm, or 
training program certified or accredited by EPA may wish to provide 
training or perform lead-based paint activities in additional EPA-
administered jurisdictions. A fee of $35 per discipline will be 
assessed for each additional EPA-administered jurisdiction in which an 
individual, firm, or training program applies for certification/re-
certification or accreditation/re-accreditation. For purposes of this 
multi-jurisdiction registration fee, an EPA-administered jurisdiction 
is either an individual state without an authorized program or all 
Indian Tribes without authorized programs that are within a given EPA 
Region.
    (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 jurisdiction-- (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(s) described in 
paragraph (c) of this section.
    (ii) Firms. Submit a completed application (titled ``Application 
for Firms to Conduct Lead-based Paint Activities''), the materials 
described at Sec. 745.226, and the application fee(s) described in 
paragraph (c) of this section.
    (2) Accreditation and re-accreditation in one or more EPA-
administered jurisdiction. 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.
    (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. 99-14597 Filed 6-8-99; 8:45 am]
BILLING CODE 6560-50-F