[Federal Register Volume 69, Number 118 (Monday, June 21, 2004)]
[Rules and Regulations]
[Pages 34262-34276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13873]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 35, 200, 291, 598, 891, 982 and 983

[Docket No. FR-3482-C-10]
RIN 2501-AB57


Requirements for Notification, Evaluation, and Reduction of Lead-
Based Paint Hazards in Housing Receiving Federal Assistance and 
Federally Owned Residential Property Being Sold, Conforming Amendments 
and Corrections

AGENCY: Office of the Secretary, HUD.

ACTION: Final rule; conforming amendments and corrections.

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SUMMARY: This final rule makes conforming amendments to HUD's lead-
based paint regulations, and certain technical corrections and 
clarifying changes. Among other things, this rule clarifies HUD's 
definitions and standards for dust-lead and soil-lead hazards to make 
them consistent with the final rule of the U.S. Environmental 
Protection Agency (EPA) on

[[Page 34263]]

Identification of Dangerous Levels of Lead, as required by Title X of 
the Housing and Community Development Act of 1992.

DATES: Effective Date: July 21, 2004.

FOR FURTHER INFORMATION CONTACT: Warren Friedman, Office of Healthy 
Homes and Lead Hazard Control, Department of Housing and Urban 
Development, 451 Seventh Street, SW., Room P-3206, Washington, DC 
20410-3000; telephone (202) 755-1785, extension 104 (this is not a 
toll-free number); e-mail: [email protected]. For legal 
questions, contact John B. Shumway, Office of General Counsel, 
Department of Housing and Urban Development, Room 9262; telephone (202) 
708-0614, extension 5190 (this is not a toll-free number). Persons with 
hearing or speech impediments may access the above telephone numbers 
through TTY by calling the toll-free Federal Information Relay Service 
at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

Table of Contents

A. Clarification of the Title of subpart H of 24 CFR part 35.
B. Deletion of References to the Comprehensive Improvement Loan 
Program.
C. Conformance With the EPA Regulations.
    1. Clarification of Definition of ``Dust-Lead Hazard'' in Sec.  
35.110.
    2. Clarification of Definition of ``Soil-Lead Hazard'' in Sec.  
35.110.
    3. Clarification of Sec.  35.1320 To Include Reference to the 
New EPA Provision on Determinations.
    4. Clarification of Standards for Dust-Lead Hazards in Sec.  
35.1320(b)(2).
    5. Clarification of Soil-Lead Standards for Non-Play Areas in 
Sec.  35.1320(b)(2)(ii)(B).
    6. Clarification Regarding Teeth Marks as Evidence of Chewable 
Surface.
    7. Clarification of Standard for Replacement Soil.
    8. Clarification of Effective Date of the EPA Certification Rule 
in Sec.  35.165.
D. Clarification of Sec. Sec.  35.110, 35.125(a), 35.615(a), 
35.710(a), 35.810(a), 35.910(a), 35.1110(a), and 35.1210(a) 
Explaining That a Visual Assessment Is Not Considered an Evaluation 
and Does Not, by Itself, Require a Notice to Occupants of the 
Results of an Evaluation.
E. Clarification of Sec.  35.125(a)(1)(i) Requiring Inclusion of 
Dates of Evaluation in Notices of Evaluation.
F. Clarification of Sec.  35.125(b) Requiring Inclusion of the Dates 
of the Hazard Reduction Activity and the Date of the Notice in a 
Notice of Hazard Reduction Activity.
G. Clarification of Sec.  35.125(b) Explaining That a Notice of 
Hazard Reduction Activity Is Not Required if a Clearance Examination 
Is Not Required.
H. Clarification of Sec.  35.915 and Sec.  35.925, Regarding 
Calculation of the Amount of Federal Rehabilitation Assistance.
I. Clarification of Sec. Sec.  35.930(c) and (d) Explaining 
Requirements Pertaining to Reduction of Lead-Based Paint Hazards 
Created by Rehabilitation Work.
J. Clarification of Sec.  35.1015(c) Explaining That Ongoing Lead-
Based Paint Maintenance Is Required in Subpart K.
K. Clarification of Sec.  35.1215(b) Explaining That Paint 
Stabilization of Deteriorated Painted Surfaces Is Required for 
Housing Receiving Tenant-Based Rental Assistance To Meet Housing 
Quality Standards.
L. Clarification of Sec.  35.1215 Explaining That Time Extensions 
May Be Provided To Complete Paint Stabilization in Housing Receiving 
Tenant-Based Rental Assistance.
M. Clarification of Sec.  35.1220 Explaining the Role of Owners in 
Incorporating Ongoing Lead-Based Paint Maintenance Activities.
N. Clarification of Sec.  35.1320(a) Explaining the Qualification 
for Performance of Paint Testing.
O. Clarification of Sec.  35.1320(b) To Include Lead Hazard Screens.
P. Editing of Sec.  35.1320(c) To Add a Recommendation That Sampling 
Technicians Provide a Plain-Language Summary for Occupants.
Q. Clarification of Sec.  35.1330(a)(4) Explaining That 
Qualification Requirements for Interim Controls Workers Do Not Apply 
if De Minimis Amounts of Painted Surfaces Are Being Disturbed.
R. Clarification of Sec.  35.1330(a)(4) Regarding the Reference to 
Occupational Safety and Health Administration (OSHA) Regulations.
S. Clarification of Sec.  35.1330(a)(4) Regarding Approved Courses 
for Interim Controls Workers.
T. Clarification of Sec.  35.1340(b)(1) Regarding Terminology for 
Sampling Technicians.
U. Clarification of Sec.  35.1340(b)(2)(i) Regarding Exterior 
Clearance.
V. Clarification of Sec.  35.1340(g) Regarding the Required Extent 
of Clearance.
W. Clarification of Sec.  35.1350(b) Explaining Training Requirement 
To Ensure Occupant Protection, Worksite Preparation, and Specialized 
Cleaning for Work Requiring Safe Work Practices.
X. Clarification of Sec.  35.1355 Regarding Exemption From 
Maintenance Requirements.
Y. Correction of Sec.  35.1355(b)(1)(iii) Regarding Typographical 
Error.
Z. Deletion of Sec.  200.810(a)(2) To Correct an Error Pertaining to 
Indian Housing Activities.
AA. Correction of Sec.  291.430 Regarding a Typographical Error.
BB. Correction of Subpart E of 24 CFR Part 598 Regarding Urban 
Empowerment Zones.
CC. Corrections to Sec.  891.155 and Sec.  891.325 To Cite Subpart J 
of 24 CFR Part 35 as an Applicable Subpart.
DD. Correction of Sec.  982.305(b)(1)(ii) Regarding Regulatory 
Reference Numbering.
EE. Correction of Sec.  983.203(d) Regarding Responsibility for 
Provision of Lead Information Pamphlet.

    On September 15, 1999, HUD published a final rule (64 FR 50140) 
that revised and consolidated the Department's lead-based paint 
regulations. The revisions implemented sections 1012 and 1013 of the 
Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 
4851 et seq.). The September 15, 1999, rule became effective on 
September 15, 2000, and is found at 24 CFR part 35. Other parts of 
title 24 were amended to conform to and cite the consolidated 
regulations in part 35. The purpose of 24 CFR part 35 is to ensure to 
the extent practicable that housing receiving Federal assistance or 
being sold by the Federal Government does not have lead-based paint 
hazards that could cause lead poisoning in young children residing in 
such housing. As a result of HUD's experience with the rule since its 
issuance, and to conform HUD's regulations to EPA's rule on 
Identification of Dangerous Levels of Lead (66 FR 1205, January 5, 
2001) under section 403 of the Toxic Substances Control Act (15 U.S.C. 
2683), this rule makes several clarifications to 24 CFR part 35 and 
related provisions at 24 CFR parts 200, 291, 598, 891, 982, and 983. 
The clarifications of this final rule are as follows:

A. Clarification of the Title of Subpart H of 24 CFR Part 35

    The existing title of subpart H of 24 CFR part 35 is ``Project-
Based Rental Assistance.'' The existing title is misleading, because 
some housing assistance programs covered by this subpart provide only 
an interest rate subsidy and do not provide financial assistance to pay 
rent. Therefore, this rule removes the word ``Rental'' from the title 
of subpart H in the list of subparts and sections at the beginning of 
part 35 as well as in the text of the rule.

B. Deletion of References to the Comprehensive Improvement Loan Program

    The regulations at 24 CFR part 35 have several references to the 
Comprehensive Improvement Loan Program (CILP). This program is no 
longer funded, so no new rehabilitation projects will begin. All 
funding of CILP projects ceased before September 15, 2000, the 
effective date of the final rule (see 64 FR 50140). Therefore, this 
final rule removes all references to this program, including those in 
Sec. Sec.  35.110,

[[Page 34264]]

35.910, 35.915, 35.920, 35.930, and 35.935.

C. Conformance With EPA Regulations

    HUD's final rule established temporary standards for dust-lead and 
soil-lead hazards pending promulgation of EPA's related standards 
pursuant to section 403 of the Toxic Substances Control Act (15 U.S.C. 
2683). Federal law requires that EPA set the legal standards for dust-
lead and soil-lead hazards (see 15 U.S.C. 2683). On January 5, 2001, 
the EPA published the standards in its final rule, Identification of 
Dangerous Levels of Lead (66 FR 1206), creating subpart D of 40 CFR 
part 745 and amending subparts L and O. These EPA standards, effective 
March 6, 2001, are available from the Internet at http://www.epa.gov/lead/leadhaz.htm. Therefore, this rule incorporates the new EPA 
standards at 24 CFR part 35, which are HUD's final dust-lead and soil-
lead standards. The clarifications are in the definitions as well as in 
the standards. These refinements were made to maximize the consistency 
of language used in the HUD and EPA regulations and to comply with 15 
U.S.C. 2683.
    1. Clarification of definition of ``dust-lead hazard'' in Sec.  
35.110. This rule replaces the general reference in Sec.  35.110 to 
``section 403 of the Toxic Substances Control Act'' with a more direct 
citation of the EPA regulation at ``40 CFR 745.65.'' This rule also 
replaces the word ``at'' with ``equal to'' to use language identical to 
the EPA regulation and makes other minor editorial clarifications.
    2. Clarification of definition of ``soil-lead hazard'' in Sec.  
35.110. This rule replaces the general reference in Sec.  35.110 to 
``section 403 of the Toxic Substances Control Act'' with a more direct 
citation of the EPA regulation at ``40 CFR 745.65.'' This rule also 
removes the actual numerical levels from this definition and makes 
other minor editorial clarifications. Numerical standards are provided 
at Sec.  35.1320.
    3. Clarification of Sec.  35.1320 to include reference to the new 
EPA provision on determinations. The EPA added a new paragraph to its 
regulations that restates the standards and conditions under which a 
lead-based paint inspector or risk assessor determines the presence of 
lead-based paint or a paint-lead hazard, dust-lead hazard, or soil-lead 
hazard. (40 CFR 745.227(h)). Therefore, this final rule adds references 
to the new paragraph (h) of 40 CFR 745.227 in Sec.  35.1320(a) and (b).
    4. Clarification of standards for dust-lead hazards in Sec.  
35.1320(b)(2). The EPA rule at 40 CFR 745.227(h) sets the standards for 
dust-lead and soil-lead hazards. The HUD standards listed in 24 CFR 
part 35 differ from EPA's final rule. This rule clarifies and conforms 
the HUD standards at Sec.  35.1320(b) to the EPA standards, as required 
by both the HUD regulation and Title X of the 1992 Housing and 
Community Development Act (42 U.S.C. 4851 et seq.). The differences 
reflected in clarifications of this rule are (i) the new EPA standard 
for dust-lead in window troughs at the time of clearance examinations 
is 400 micrograms per square feet ([mu]g/ft \2\), whereas the previous 
HUD standard was 800 [mu]g/ft \2\; (ii) for composite dust samples 
during clearance examinations, the new EPA rule requires that the 
relevant single-sample standard (i.e., for floors, interior window 
sills, or window troughs) must be divided by one-half the number of 
subsamples, allowing from two to four subsamples, whereas the previous 
HUD standards had no such requirement; and (iii) the new EPA rule at 40 
CFR 745.227(h)(3)(i) states that a dust-lead hazard is present ``when 
the weighted arithmetic mean lead loading for all single surface or 
composite samples'' is equal to or greater than the standard for floors 
or interior window sills, whereas the previous HUD standards did not 
have a similar provision.
    5. Clarification of soil-lead standards for non-play areas in Sec.  
35.1320(b)(2)(ii)(B). The new EPA hazard standard for bare soil in non-
play areas is 1,200 parts per million (ppm) (40 CFR 745.65(c)). The 
previous HUD standard was 2,000 ppm. In HUD's definitions of ``soil-
lead hazard'' and ``dust-lead hazard'', the regulation states that the 
HUD standard is ``* * * equal to or exceeding levels promulgated by the 
U.S. Environmental Protection Agency, or if such levels are not in 
effect, the following * * *.'' Because the new EPA standards became 
effective in 2001, this final rule conforms the HUD standards to the 
new EPA standard, as required by Title X of the 1992 Housing and 
Community Development Act. Therefore, HUD's regulation at 24 CFR 
35.1320(b)(2)(ii)(B) is refined as follows: ``For the rest of the yard, 
a soil-lead hazard is bare soil that totals more than 9 square feet 
(0.8 square meters) per property with lead equal to or exceeding 1,200 
parts per million (micrograms per gram).''
    6. Clarification regarding teeth marks as evidence of chewable 
surface. The new EPA regulation located at 40 CFR 745.65(a)(3) states 
that a paint-lead hazard includes ``any chewable lead-painted surface 
on which there is evidence of teeth marks.'' The previous HUD rule did 
not use the particular term ``teeth marks'' as evidence of chewing, but 
currently states at 24 CFR 35.1330(d)(1) that ``chewable surfaces are 
required to be treated only if there is evidence that a child of less 
than 6 years of age has chewed on the painted surface, * * *.'' 
Therefore, to maximize consistency between EPA and HUD regulations, 
this final rule inserts ``of teeth marks, indicating'' after 
``evidence'' in the immediately preceding quoted text.
    7. Clarification of standard for replacement soil. The new EPA 
regulation of January 5, 2001 (66 FR 1205), states at 40 CFR 
745.227(e)(7)(i)(A) that if soil is removed to abate a soil-lead hazard 
``the soil shall be replaced by soil with a lead concentration as close 
to local background as practicable, but no greater than 400 ppm.'' The 
previous HUD regulation at 24 CFR 35.1330(f), which pertained to 
interim control treatments of soil-lead hazards, set a standard of 200 
[mu]g/g for impermanent surface covering material. To maximize 
consistency between EPA and HUD regulations, this final rule 
substitutes ``400 [mu]g/g'' for ``400 ppm'' in 24 CFR 
35.1330(f)(3)(i)(C). HUD recommends, but does not require, that 
replacement soil have a lead content no more than 200 ppm to 
incorporate a reasonable margin of safety.
    8. Clarification of effective date of the EPA certification rule in 
Sec.  35.165. The EPA rule of August 6, 1999 (64 FR 42849), extended 
the effective dates under section 402 of the Toxic Substances Control 
Act for certification of individuals and firms and use of work practice 
standards (see 15 U.S.C. 2682). To avoid possible confusion HUD amended 
its rule on January 21, 2000 (65 FR 3386), citing, ``the date specified 
in 40 CFR 745.239(b),'' rather than list a specific date which had not 
yet arrived. The EPA regulation has since gone into effect and thus, 
the specific effective date, March 1, 2000, is inserted into the HUD 
rule to give it greater clarity. (Sec. Sec.  35.165(a)(1),(2); 
(b)(2)(3); and (d)(1)(2)).

D. Clarification of Sec. Sec.  35.110, 35.125(a), 35.615(a), 35.710(a), 
35.810(a), 35.910(a), 35.1110(a), and 35.1210(a) Explaining That a 
Visual Assessment Is Not Considered an Evaluation and Does Not, by 
Itself, Require a Notice to Occupants of the Results of an Evaluation

    Several parties asked HUD whether after a visual assessment for 
deteriorated paint, when such a visual assessment is the only 
evaluative activity that is required and conducted, a notice of 
evaluation must be provided to

[[Page 34265]]

occupants in accordance with Sec.  35.125. HUD's regulations require 
that a visual assessment to identify deteriorated paint be conducted in 
housing receiving certain types of assistance. HUD requires that either 
occupants be notified of the results of an evaluation conducted in 
housing in which they live, or if a landlord or property owner elects 
to assume that lead exists and the regulation requires an evaluation, 
the occupants be notified that a presumption of the existence of lead-
based paint hazards was made in place of testing.
    HUD does not require that a notice of evaluation or presumption be 
provided after conducting only a visual assessment for deteriorated 
paint, because a visual assessment only produces information that most 
people could obtain by themselves by simply looking at painted 
surfaces.
    Section 35.1010(a) states that, ``A visual assessment is not 
considered an evaluation for purposes of this part,'' and Sec.  
35.1210(a) states that, ``A visual assessment is not an evaluation.'' 
The term ``evaluation'' means only procedures that include the 
measurement of the amount of lead in paint, dust, or soil. Also, the 
definition of ``evaluation'' in Sec.  35.110 does not include mention 
of a visual assessment. Nevertheless, because HUD has received numerous 
questions as to whether a notice of evaluation or presumption is 
required after a visual assessment, this rule inserts additional 
statements of the meaning in several appropriate places in the rule--
the definition of ``visual assessment'' in Sec. Sec.  35.110, 
35.125(a), 35.615(a), 35.710(a), 35.810(a), 35.910(a), and 35.1110(a). 
Also, the relevant statement at Sec.  35.1210(a) is edited to be 
identical to such statements in other subparts. The statement repeated 
in the sections listed in the prior two sentences is, ``A visual 
assessment alone is not considered an evaluation for the purposes of 
this part.'' In addition, at Sec.  35.125(a), this document adds the 
following statement: ``If only a visual assessment alone is required by 
this part, and no evaluation is performed, a notice of evaluation or 
presumption is not required.''

E. Clarification of Sec.  35.125(a)(1)(i) Requiring Inclusion of Dates 
of Evaluation in Notices of Evaluation

    Section 35.125(a) describes, among other things, the required 
content of notices to occupants of the results of evaluations. The list 
of information to be included in notices of evaluation does not include 
the date of the evaluation, an obvious omission. The date of a risk 
assessment is important to occupants because risk assessments go out of 
date, typically in 12 months (see Sec.  35.165(b)(1)). Requiring 
inclusion of the date of the evaluation in notices to occupants is not 
a burden to owners because it is readily available information--it must 
be on the evaluation report--in accordance with EPA regulations at 40 
CFR 745.227(b), (c), and (d). This rule corrects this omission by 
adding ``dates'' to Sec.  35.125(a)(1)(i) so that it reads, ``A summary 
of the nature, dates, scope, and results of the evaluation.'' This rule 
does not make a similar correction to the list of information that must 
be in a notice of presumption because the owner made the presumption, 
and the date the owner did so, as distinguished from the date of the 
notice, is not necessarily a matter of record.

F. Clarification of Sec.  35.125(b) Requiring Inclusion of the Dates of 
the Hazard Reduction Activity and the Date of the Notice in a Notice of 
Hazard Reduction Activity

    Similarly, the list of information to be included in a notice of 
hazard reduction activity, which is provided at Sec.  35.125(b)(1)(i), 
does not include the dates associated with the performance of the 
hazard reduction activity. These dates also are readily available to 
the owner because they must be on an abatement report, in accordance 
with EPA regulations at 40 CFR 745.227(e)(10)(i). Further, the dates 
must be on a report of hazard reduction activities other than 
abatement, in accordance with HUD regulations at Sec.  
35.1340(c)(2)(i), which require the date or dates of the clearance 
examination. This rule corrects the omission by adding ``dates,'' to 
Sec.  35.125(a)(1)(i) so that it reads, ``A summary of the nature, 
dates, scope, and results (including clearance) of the hazard reduction 
activities.''
    The list of information to be included in a notice of evaluation or 
presumption is provided at Sec. Sec.  35.125(a)(1) and (2) and 
includes, among other things, the date of the notice itself. However, 
the list of information to be included in a notice of hazard reduction 
activity, which is provided at Sec.  35.125(b)(1), does not include the 
date of the notice. This rule corrects this obvious omission by adding 
a new paragraph (b)(1)(iv) to Sec.  35.125 that reads, ``The date of 
the notice.''

G. Clarification of Sec.  35.125(b) Explaining That a Notice of Hazard 
Reduction Activity Is Not Required if a Clearance Examination Is Not 
Required

    HUD's regulation states, at Sec.  35.1340(g), that ``Clearance is 
not required if maintenance or hazard reduction activities in the 
worksite do not disturb painted surfaces of a total area more than that 
set forth in Sec.  35.1350(d).'' The surface areas stated at Sec.  
35.1350(d) are known as the ``de minimis'' areas, which are small areas 
of paint, which, if disturbed, are not expected to generate enough dust 
to create a significant risk of human exposure to lead. It follows that 
a notice to occupants of the results of hazard reduction activity 
should not be required if a clearance examination is not required, 
because there is no information about the presence or absence of risk 
to transmit to occupants. This rule, therefore, incorporates such a 
statement in a new paragraph (3) of Sec.  35.125(b) that reads, 
``Provision of a notice of hazard reduction is not required if a 
clearance examination is not required.''

H. Clarification of Sec.  35.915 and Sec.  35.925, Regarding 
Calculation of the Amount of Federal Rehabilitation Assistance

    This rule clarifies the instructions at 24 CFR 35.915 on the method 
of calculating the amount of Federal rehabilitation assistance, an 
amount used in subpart J. This calculation must be done correctly to 
determine which of three sets of lead-based paint requirements a 
rehabilitation project must comply with, i.e., those for projects 
receiving no more than $5,000, $5,001 to $25,000, or more than $25,000 
in Federal rehabilitation assistance.
    HUD considers all the Federal funds that make a rehabilitation 
project possible to be Federal rehabilitation assistance, regardless of 
the use of such funds. For example, under the Community Development 
Block Grant program or the Home Investment Partnerships (HOME) program, 
if program funds are used to acquire a property for rehabilitation, 
those acquisition funds are considered to be rehabilitation assistance, 
as well as any Federal funds used for construction activities. However, 
the statute indicates that the stringency of the requirements should 
bear some relationship to whether the extent of improvements being 
provided to the property is ``substantial.'' The concept of 
``substantial'' rehabilitation implies a major amount of construction 
that is measured in part by so-called ``hard'' costs, i.e., labor, 
materials, equipment and the like, as opposed to administrative or 
design costs.
    Thus, there are two concepts of what constitutes Federal funds for 
rehabilitation projects for the purposes of implementing the statute: 
total

[[Page 34266]]

Federal funds flowing to the project and the hard costs of 
rehabilitation. The statute is not precise on which concept should 
apply. The statute calls for ``reduction of lead-based paint hazards in 
the course of rehabilitation projects receiving less than $25,000 per 
unit in Federal funds'' or ``abatement of lead-based paint hazards in 
the course of substantial rehabilitation projects receiving more than 
$25,000 per unit in Federal funds'' (emphasis added). (See generally, 
42 U.S.C. 4822.)
    HUD, in writing its regulation, was aware of possible results of 
selecting one concept of ``Federal funds'' or the other. If HUD chose 
to count only Federal funds being used for the hard costs of 
rehabilitation, grantees might allocate as much of the Federal funds as 
possible to acquisition or some other non-construction purpose. On the 
other hand, if HUD chose to count all Federal assistance, regardless of 
the use of the funds, the result might be that many projects that would 
not reasonably be considered to be ``substantial rehabilitation'' would 
be classified in the ``more than $25,000'' category.
    To resolve the issue, the Department decided to use a dual 
threshold method to determine the amount of Federal assistance. The 
grantee would calculate both the total Federal assistance per dwelling 
unit (regardless of the use of the funds) and the per unit hard costs 
of rehabilitation (regardless of the source of funds). The level of 
regulatory assistance for determining the lead-based paint hazard 
reduction requirements would be the lesser of the two numbers.
    HUD provided, at Sec.  35.925, examples of how grantees must 
consider both the total per unit amount of Federal assistance and the 
hard costs of rehabilitation in determining the applicable 
requirements. However, the dual threshold approach was not clearly 
reflected in the instructions in Sec.  35.915 on the method of 
calculating the level of Federal rehabilitation assistance for a given 
project. This rule corrects this shortcoming in subpart J. The 
correction includes a change to the title of Sec.  35.915 as well as 
changes to the text. The section title is also changed in the list of 
sections at the beginning of 24 CFR part 35. This rule also amends the 
example of the calculation at Sec.  35.915(c)(2) and moves it to Sec.  
35.925, which is the section that provides examples of determinations 
of applicable requirements. These changes make the two sections of the 
rule clearer and more internally consistent.

I. Clarification of Sec. Sec.  35.930(c) and (d) Explaining 
Requirements Pertaining to Reduction of Lead-Based Paint Hazards 
Created by Rehabilitation Work

    HUD requires, at Sec. Sec.  35.930(c) and (d), that there be hazard 
reduction of ``all lead-based paint hazards identified by the paint 
testing or risk assessment'' and of ``any lead-based paint hazards 
created as a result of the rehabilitation work'' in housing receiving 
Federal rehabilitation assistance of more than $5,000 per unit. Section 
35.930(c) requires that hazards be reduced by interim controls, at a 
minimum, and Sec.  35.930(d) requires that hazards be abated. After 
receiving many questions on the meaning and implications of the phrase, 
``any lead-based paint hazards created as a result of the 
rehabilitation work,'' HUD has concluded that this provision is 
unnecessarily confusing, and therefore is clarifying it.
    It is clear how a grantee or other recipient of Federal 
rehabilitation assistance will determine what lead-based paint hazards 
are identified by the paint testing and the risk assessment, because 
the risk assessor must provide a report identifying the hazards and 
listing acceptable methods of controlling such hazards. The risk 
assessment is to be conducted before the rehabilitation work begins, so 
the grantee can program the hazard reduction work with the 
rehabilitation. It is not clear, however, how a grantee or other 
recipient is to determine whether additional lead-based paint hazards, 
not identified by the risk assessment, are being created during the 
course of the rehabilitation work and, if they are being created, what 
should be done to control or abate such hazards. The Department has 
provided guidance and training to state and local program managers and 
rehabilitation contractors and workers on the use of lead-safe work 
practices during rehabilitation, but it has not provided definitions or 
guidance on identifying lead-based paint hazards created by 
rehabilitation that must be abated. At what point, for example, does a 
cut in a wall that is painted with lead-based paint become a lead-based 
paint hazard that must be abated, and what exactly must be abated?
    HUD's objective in including the questionable phrase in the 
regulation was to implement the statute and assure that rehabilitation 
be conducted using lead-safe work practices, which are required in 
association with both interim controls and abatement. However, the 
wording is ambiguous, and it is necessary to replace the phrase with a 
clear statement that lead-safe work practices must be used throughout 
rehabilitation work covered by the rule. Therefore, this rule removes 
from Sec. Sec.  35.930(c) and (d) the requirement of reduction of lead-
based paint hazards created by the rehabilitation work and inserts a 
statement requiring safe work practices. There is no change in the 
burden on owners, and the tenants are protected in the same manner as 
before, because clearance is performed.

J. Clarification of Sec.  35.1015(c) Explaining That Ongoing Lead-Based 
Paint Maintenance Is Required in Subpart K

    HUD's regulation at Sec.  35.1015(c) requires that, for properties 
subject to subpart K, ``The grantee or participating jurisdiction shall 
incorporate ongoing lead-based paint maintenance activities into 
regular building operations, in accordance with Sec.  35.1355(a).'' 
This provision has generated two questions: (1) Under what conditions 
does this requirement apply? and (2) If the grantee or participating 
jurisdiction is not the owner or operator of the property, as is often 
the case, can the grantee or participating jurisdiction assign the 
responsibilities of ongoing lead-based maintenance to the owner or 
operator of the property?
    With regard to the first question, the preamble to HUD's final rule 
(at 64 FR 50175) states that ongoing lead-based paint maintenance would 
be required in subpart K ``where there is a continuing and active 
financial relationship with the property,'' but this policy is not 
stated in the regulation. Affected parties have asked whether mortgage 
insurance is a continuing and active financial relationship. On that 
question, the rule states at Sec.  35.1000(a), that programs covered by 
this subpart ``do not include mortgage insurance, sale of federally 
owned housing, project-based or tenant-based rental assistance, 
rehabilitation assistance, or assistance to public housing. For 
requirements pertaining to those activities or types of assistance, see 
the applicable subpart of this part.'' Since subpart K does not cover 
mortgage insurance, it is not covered by the requirements of Sec.  
35.1015(c). To clarify this issue, this rule inserts language at the 
end of Sec.  35.1015(c) that provides if the dwelling unit or 
residential property has a continuing, active, financial relationship 
with a Federal housing assistance program, except that mortgage 
insurance or loan guarantees are not considered to constitute an active 
programmatic relationship for the purposes of this subpart.
    With regard to the second question, the rule states at Sec.  
35.1000(b) that, for properties subject to subpart K, ``The

[[Page 34267]]

grantee or participating jurisdiction may assign to a subrecipient or 
other entity the responsibilities set forth in this subpart.'' 
Therefore, no change is necessary to clarify the policy regarding 
whether the grantee or participating jurisdiction can make another 
party responsible for ongoing lead-based paint maintenance.

K. Clarification of Sec.  35.1215(b) Explaining That Paint 
Stabilization of Deteriorated Painted Surfaces Is Required for Housing 
Receiving Tenant-Based Rental Assistance To Meet Housing Quality 
Standards

    HUD's regulation states at Sec.  35.1215(b) that owners of housing 
receiving tenant-based rental assistance covered by this section must 
complete paint stabilization of any deteriorated paint found by the 
visual assessment conducted by the administering agency (usually a 
local public housing agency (PHA)) within a specified period of being 
notified of the results of the visual assessment. The completion of the 
paint stabilization is required for the unit to meet Housing Quality 
Standards (HQS) (see 24 CFR part 982, Section 8 Tenant-Based 
Assistance: Housing Choice Voucher Program, especially Sec. Sec.  
982.401(a)(3) and (j)). The unit remains in non-compliance with the HQS 
until the paint stabilization is completed or this unit is no longer 
covered by this subpart because the unit is no longer under a housing 
assistance payment (HAP) contract with the housing agency. Once the 
unit leaves the program, the process starts anew if and when another 
family is requesting the unit.
    While this is explicitly noted in the case of a child with an 
environmental intervention blood lead level (Sec. Sec.  35.1225(a) and 
(c)), it was omitted from Sec.  35.1215(b). Therefore, this rule adds a 
new sentence to the end of Sec.  35.1215(b): ``If the owner does not 
complete the hazard reduction required by this section, the dwelling 
unit is in violation of HQS until the hazard reduction is completed or 
the unit is no longer covered by this subpart because the unit is no 
longer under a HAP contract with the housing agency.''

L. Clarification of Sec.  35.1215 Explaining That Time Extensions May 
Be Provided To Complete Paint Stabilization in Housing Receiving 
Tenant-Based Rental Assistance

    HUD's regulation at Sec.  35.1215(b) states that owners of housing 
receiving tenant-based rental assistance must complete paint 
stabilization of any deteriorated paint found by the visual assessment 
conducted by the administering agency (usually a local PHA) within 30 
days of being notified of the results of the visual assessment. No 
provision is made for an extension of this 30-day period by the agency 
administering the program (except for the delay when weather conditions 
are unsuitable for conventional construction activities for exterior 
surfaces, Sec.  35.115(a)(12)). PHAs have authority to grant reasonable 
time extensions to owners for corrections of other violations of the 
housing quality standards for the Housing Choice Voucher Program. It is 
reasonable that such authority be available for the correction of 
deteriorated paint. Accordingly, this document adds a new Sec.  
35.1215(d): ``The designated party may grant the owner an extension of 
time to complete paint stabilization and clearance for reasonable 
cause, but such an extension shall not extend beyond 90 days after the 
date of notification of the owner of the results of the visual 
assessment.''

M. Clarification of Sec.  35.1220 Explaining the Role of Owner in 
Incorporating Ongoing Lead-Based Paint Maintenance Activities

    HUD's regulation at Sec.  35.1220 requires the owner of a property 
receiving tenant-based rental assistance to incorporate ongoing lead-
based paint maintenance activities into regular building operations in 
accordance with Sec.  35.1355(a). HUD was asked whether the PHA is 
responsible for this ongoing activity when the Federal housing program 
is the Section 8 Housing Choice Voucher Program. The question is based 
on the identification in Sec.  35.1200(b)(2)(ii) of the PHA as the 
designated party for purposes of that program, and the general 
requirement of Sec.  35.1355(a)(7) that the designated party ``shall * 
* * stabilize the deteriorated paint or repair the encapsulation or 
enclosure * * * .''
    HUD's rationale for stating in Sec.  35.1220 that the owner must 
comply with ongoing lead-based maintenance requirements is that in all 
HUD tenant-based rental assistance programs, it is the owner who is 
responsible for keeping the assisted property in compliance with HQS or 
other similar standards. While the role of the designated party is to 
be ``responsible for complying with applicable requirements'' (see 
definition of designated party in Sec.  35.110), HUD views that 
responsibility to be broad. In subpart L, as in subparts J and K, the 
rule specifically authorizes the designated party to ``assign to a 
subrecipient or other entity the responsibilities of the designated 
party in this subpart,'' and the assignee can be the owner (see Sec.  
35.1200(b)(7)). Nevertheless, HUD is clarifying this identification to 
remove potential uncertainty by adding the phrase, ``Notwithstanding 
the designation of the PHA, grantee, participating jurisdiction or IHBG 
recipient as the designated party for this subpart,'' to the beginning 
of Sec.  35.1220.

N. Clarification of Sec.  35.1320(a) Explaining the Qualification for 
Performance of Paint Testing

    HUD's regulation at Sec.  35.110 defines ``paint testing'' as ``the 
process of determining, by a certified lead-based paint inspector or 
risk assessor, the presence or the absence of lead-based paint on 
deteriorated paint surfaces or painted surfaces to be disturbed or 
replaced.'' HUD has received several questions as to whether paint 
testing can be done by someone other than a certified lead-based paint 
inspector or risk assessor. This rule adds ``paint testing'' to the 
title of Sec.  35.1320(a) and adds a statement in the same paragraph 
that ``paint testing to determine the presence or absence of lead-based 
paint on deteriorated paint surfaces or surfaces to be disturbed or 
replaced shall be performed by a certified lead-based paint inspector 
or risk assessor.''

O. Clarification of Sec.  35.1320(b) To Include Lead Hazard Screens

    The HUD standards include dust-lead standards for lead-hazard 
screens at Sec.  35.1320(b)(2), but there is no mention of this in the 
title of Sec.  35.1320(b) or in the introductory text of Sec.  
35.1320(b)(1). Therefore, to clarify the rule, this rule adds ``lead 
hazard screens'' to the title of Sec.  35.1320(b) and inserts ``and 
lead hazard screens'' after ``Risk assessments'' in Sec.  35.1320(b)(1) 
to make the terminology in the title and introductory section 
consistent.

P. Editing of Sec.  35.1320(c) To Include a Recommendation That 
Sampling Technicians Provide a Plain-Language Summary for Occupants

    Section 35.1320(c) of HUD's regulations recommends, but does not 
require, ``that lead-based paint inspectors and risk assessors provide 
a summary of the results suitable for posting or distribution to 
occupants * * *.'' The purpose of this recommendation is to assist 
property owners in complying with the requirement to provide notices to 
occupants regarding the results of hazard evaluations or the clearance 
examination following hazard reductions (see Sec. Sec.  35.125(b) and 
(c)). For consistency among the several lead-

[[Page 34268]]

hazard evaluation disciplines, this rule adds ``sampling technicians'' 
to the list of individuals who could prepare the summary recommended by 
paragraph (c) of Sec.  35.1320. The function of the summary is being 
clarified to indicate that it is to be written in plain language 
suitable for comprehension by lay people. (Additional information may 
be attached to the plain-language summary.) As a result, in paragraph 
(c) of Sec.  35.1320, this rule adds the phrase ``plain-language'' 
before ``summary of the results'' to describe the summary.

Q. Clarification of Sec.  35.1330(a)(4) Explaining That Qualification 
Requirements for Interim Controls Workers Do Not Apply if De Minimis 
Amounts of Painted Surfaces Are Being Disturbed

    Safe work practices and clearance are not required if the area of 
paint being disturbed is within the de minimis amounts specified at 
Sec.  35.1350(d). It follows, but it is not stated in the regulation, 
that persons performing interim controls should not be required to be 
trained in safe work practices if they are disturbing paint areas less 
than the de minimis levels. To correct this omission, this rule inserts 
the following prior to the colon in the first sentence of Sec.  
35.1330(a)(4): ``except that this supervision or lead-safe work 
practices training requirement does not apply if the interim controls 
do not disturb painted surfaces more than the de minimis limits of 
Sec.  35.1350(d).''

R. Clarification of Sec.  35.1330(a)(4) Explaining the Reference to 
OSHA Regulations

    HUD's regulation at Sec.  35.1330(a)(4) states the qualifications 
required of persons performing interim controls. The provision begins 
by stating, ``A person performing interim controls must be trained in 
accordance with 29 CFR 1926.59 and * * * .'' This is a reference to the 
hazard communication standard of the Occupational Safety and Health 
Administration (OSHA). Some training providers have interpreted the 
reference as a call for training on the entire OSHA lead-in-
construction standard, which is not HUD's intent. Therefore, this rule 
inserts a clarifying phrase before the citation of 29 CFR 1926.59 to 
reference the hazard communication standard for the construction 
industry issued by the Occupational Safety and Health Administration of 
the U.S. Department of Labor.

S. Clarification of Sec.  35.1330(a)(4) Regarding Approved Courses for 
Interim Controls Workers

    HUD's regulation at Sec.  35.1330(a)(4) lists certain training 
courses that satisfy the lead-safe work practices training requirements 
for interim controls workers and also states that other courses may be 
approved by HUD after consultation with EPA. HUD's requirement for 
lead-safe work practices training is separate from OSHA's hazard 
communication requirement. The list of lead-safe work practices courses 
in the rule is out of date, because, in accordance with Sec.  
35.1330(a)(4)(v), HUD has approved several courses since the 
publication of the rule. Rather than attempt to keep the list of 
courses in the rule up to date by continual amendments, this rule 
removes references to the two named courses from the list in the rule--
the ones prepared by the National Environmental Training Association 
(NETA) and by HUD and the National Association of the Remodeling 
Industry (HUD/NARI)--and adds the following statement to the end of 
paragraph (v): ``A current list of approved courses is available on the 
Internet at http://www.hud.gov/offices/lead or from the HUD Office of 
Healthy Homes and Lead Hazard Control by calling (202) 755-1785, 
extension 104 (this is not a toll-free number).'' The list as of today 
includes both the NETA and the HUD/NARI courses mentioned above.

T. Clarification of Sec.  35.1340(b)(1) Regarding Terminology for 
Sampling Technicians

    The regulations use terminology for persons who are trained to 
perform clearance examinations under specified conditions and controls, 
which is outdated. Such persons are identified as ``clearance 
technicians'' in the regulations, but the term now being used is 
``sampling technician'' (see, for example, the House Appropriations 
Committee Report for H.R. 106-286, in regard to the HUD Office of Lead 
Hazard Control). Therefore, Sec. Sec.  35.1340(b)(1)(iii) and (iv) are 
revised to replace, in two instances in each paragraph, the term 
``clearance technician'' with ``sampling technician.''

U. Clarification of Sec.  35.1340(b)(2)(i) Regarding Exterior Clearance

    HUD has received questions about the protocol for clearance 
examinations in exterior areas. One common question is whether soil 
sampling is necessary. The answer is no, in conformance with EPA 
regulations at 40 CFR 745.227(e)(8)(v)(C); for clearance following 
exterior abatement, Sec.  35.1340(a) applies; and for exterior 
activities other than abatement, Sec.  35.1340(b) applies. Another 
common question is whether interior clearance is required if only 
exterior work has been conducted. The answer is no, if all building 
openings (windows, doors, vents) in the vicinity of the worksite were 
sealed during the work to keep dust from the worksite from traveling 
into interior spaces. In such a case, a visual assessment is required 
only for visible dust and debris at the work site and on the outdoor 
living area closet to the treated surface, and for paint chips on the 
dripline or next to the foundation below any exterior surface where 
work was performed. This rule amends Sec.  35.1340(b)(2)(i) by adding a 
new sentence, which reads, ``Soil sampling is not required.'' (Note 
that replacement surface covering material used for interim controls 
under Sec.  35.1330(f)(3)(i)(C), which must contain no more than 400 
parts per million of lead, is typically sampled or otherwise evaluated 
before installation.) Another new sentence is added to read, ``If 
clearance is being performed after lead-based paint hazard reduction, 
paint stabilization, maintenance, or rehabilitation that affected 
exterior surfaces but did not disturb interior painted surfaces or 
involve elimination of an interior dust-lead hazard, interior clearance 
is not required if affected window, door, ventilation and other 
openings are sealed during the exterior work.''

V. Clarification of Sec.  35.1340(g) Regarding the Required Extent of 
Clearance

    HUD has received questions as to whether the clearance examination 
must extend to the entire dwelling unit or common area if the hazard 
reduction work was conducted in only a part of the unit or area. 
Generally, unit-wide or common-area-wide clearance is the best 
practice. However, in conformance with the EPA regulation at 40 CFR 
745.227(e)(8)(v)(A), pertaining to clearance after abatement with 
containment between abated and unabated areas, HUD allows clearance of 
only the worksite or the containment area following interim controls 
and other non-abatement activities, provided dust generated during the 
work has been contained to the area being cleared. This policy is 
implied in HUD's regulation at Sec.  35.1340(g), but is not explicit 
because that provision could be interpreted as applying only to 
rehabilitation with no more than $5,000 of Federal assistance per unit 
or ongoing lead-based paint maintenance. Therefore, this rule adds

[[Page 34269]]

the following two new sentences to the beginning of Sec.  35.1340(g) to 
address rehabilitation, interim controls, standard treatments, and 
ongoing maintenance, respectively: ``Clearance of only the worksite is 
permitted after work covered by Sec. Sec.  35.930, 35.1330, 35.1335, or 
35.1355, when containment is used to ensure that dust and debris 
generated by the work is kept within the worksite. Otherwise, clearance 
must be of the entire dwelling unit, common area or outbuilding, as 
applicable.''
    The procedure for worksite clearance after non-abatement work is 
modeled after the abatement clearance procedure. The procedure is never 
more stringent because non-abatement work is no more capable of 
generating dust and debris than abatement. When non-abatement work is 
uncontained, clearance includes taking floor and window dust wipe 
samples in four room equivalents. When the work is contained, clearance 
includes taking floor and window dust wipe samples in at least four 
contained room equivalents, and a dust wipe from a nearby floor outside 
the containment area, preferably along the path where most dust and 
debris were removed from the contained area. When fewer than four room 
equivalents are present, all are sampled. Therefore, this rule revises 
Sec.  35.1340(g) to include a sentence that reads: ``When clearance is 
of an interior worksite which is not an entire dwelling unit, common 
area, or outbuilding, dust samples shall be taken for paragraph (b) of 
this section as follows: (1) Sample, from each of at least four rooms, 
hallways, stairwells, or common areas within the dust containment area: 
(i) The floor (one sample); and (ii) windows (one interior sill sample 
and one trough sample, if present); and (2) sample the floor in a room, 
hallway, stairwell, or common area connected to the dust containment 
area, within five feet outside the area (one sample).''
    Finally, this rule moves the last sentence of Sec.  35.1340(g) to 
the end of paragraph (b) of Sec.  35.1340, to clarify that clearance is 
not required after any de minimis level work.

W. Clarification of Sec.  35.1350(b) Regarding Training Requirement To 
Ensure Occupant Protection, Worksite Preparation, and Specialized 
Cleaning for Work Requiring Safe Work Practices

    HUD has received questions about how workers are to know how to 
perform occupant protection, worksite preparation, and specialized 
cleaning in cases where the workers have not received training in safe 
work practices. Such training is required for workers performing 
interim controls, paint stabilization, ongoing lead-based paint 
maintenance, or abatement. (For the occupant protection and worksite 
preparation, supervision by a lead-based paint abatement supervisor can 
replace training, as provided in Sec.  35.1330(a)(4).) This 
inconsistency regarding the lack of lead-safe work practices training 
(or qualified supervision) arises only for rehabilitation under $5,000 
of Federal assistance per unit (see Sec.  35.930(b)(2)), when work of 
the same scope does require training (or qualified supervision) under 
the other subparts of the rule. Therefore, this rule adds the following 
sentence to the end of Sec.  35.1350(b), ``A person performing this 
work shall be trained on hazards and either be supervised or have 
successfully completed one of the specified courses, in accordance with 
Sec.  35.1330(a)(4).''

X. Clarification of Sec.  35.1355 Regarding Exemption From Maintenance 
Requirements

    This rule clarifies the statement in Sec.  35.1355(a)(1) regarding 
properties that are exempt from the requirements of ongoing lead-based 
paint maintenance. Section 35.1355(a)(1) states that the lead-based 
paint maintenance activities required by Sec.  35.1355(a) need not be 
conducted if both of the following conditions exist: (1) The property 
is lead-based paint free, as determined by a lead-based paint 
inspection, or as a result of removal of all lead-based paint; and (2) 
if a risk assessment is required by the applicable subpart of the rule, 
and a current risk assessment indicates that there are no dust-lead or 
soil-lead hazards present. This two-part standard for an exemption from 
ongoing lead-based paint maintenance is not consistent with the general 
exemptions, stated in Sec. Sec.  35.115(a)(4) and (5), that the 
regulation does not apply to a property found by a lead-based paint 
inspection to be free of lead-based paint or in which all lead-based 
paint has been removed, as determined by a lead-based paint inspector 
or risk assessor. A property that meets the exemption provisions of 
Sec.  35.115(a)(4) or (5) is exempt from all requirements of the rule. 
No additional provisions can be established. Therefore, this rule 
revises Sec.  35.1355(a)(1) and removes Sec. Sec.  35.1355(a)(1)(i) and 
(ii) pertaining to a risk assessment and lead-based paint hazards.

Y. Correction of Sec.  35.1355(b)(1)(iii) Regarding Typographical Error

    The third word from the end of Sec.  35.1355(b)(1)(iii) is 
misspelled. The word should be spelled ``enclosures'' instead of 
``inclosures.'' This rule corrects the spelling to read ``enclosures.''

Z. Deletion of Sec.  200.810(a)(2) To Correct an Error Pertaining to 
Indian Housing Activities

    This rule corrects an error pertaining to Indian housing activities 
contained in the September 15, 1999, final rule. The September 15, 
1999, final rule revised HUD's mortgage insurance regulations at 24 CFR 
part 200, subpart O (see 64 FR 50224, amendatory instruction number 
14). In so doing, HUD included a provision at Sec.  200.810(a)(2), 
stating that the section ``is also applicable to single family mortgage 
insurance on Indian reservations (12 U.S.C. 1715z-13) and loan 
guarantees for Indian housing (25 U.S.C. 4191).'' That statement was in 
error. If HUD guarantees notes or other obligations of an Indian Tribe 
and the proceeds are used to buy housing, such housing would be subject 
to 24 CFR part 35, subpart K, not part 200, subpart O. Therefore, this 
rule removes Sec.  200.810(a)(2) in its entirety.

AA. Correction of Sec.  291.430 Regarding a Typographical Error

    Between the fifth and sixth words from the end of Sec.  291.430, 
the word ``to'' was omitted. This rule corrects the omission so that 
the last phrase of the section reads, ``apply to activities covered by 
this subpart.''

BB. Correction of Subpart E of 24 CFR Part 598 Regarding Urban 
Empowerment Zones

    This rule corrects an error regarding the Urban Empowerment Zones 
(EZ) program. HUD has received questions regarding the lead hazard 
control requirements for that program's rehabilitation, acquisition, 
leasing, support services, or operation activities. For rehabilitation, 
subpart J applies (as do supporting subparts A, B, and R); for 
acquisition, leasing, support services, or operation activities, 
subpart K applies (as do subparts A, B, and R). In the preamble to the 
final rule, the Department noted that it had ``launched a major 
restructuring to meet the changing housing and development needs of 
communities across the country'' (64 FR 50142). The EZ program was 
within the scope of that restructuring, having had at that time recent 
rulemaking for its Round II (63 FR 19155, April 16, 1998, and 63 FR 
53262, October 2, 1998). The September 15, 1999, final Lead-Safe 
Housing rule did not, however, explicitly describe the EZ program 
coverage. Under the EZ program for both Rounds II and III,

[[Page 34270]]

which are governed by regulations at 24 CFR part 598, the community 
describes its goals and identifies its methods and commitments to 
achieve them in its strategic plan. HUD funds have been made available 
to be used in conjunction with economic development activities 
consistent with the strategic plan for each EZ in Round II. The 
implementation of the strategic plan for an EZ in Round II may include 
rehabilitation of pre-1978 target housing; for such housing, the Lead-
Safe Housing rule applies to the rehabilitation. The Lead-Safe Housing 
rule also applies to any other EZ that receives HUD funding under this 
program. This rule requires that an implementation plan that includes 
rehabilitation of pre-1978 target housing incorporate the applicable 
portions of the September 15, 1999, Lead-Safe Housing final rule. 
Therefore, this rule corrects part 598, subpart E, Post-Designation 
Requirements, by adding Sec.  598.408, ``Lead-based paint requirements. 
The Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846), 
the Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 
U.S.C. 4851-4856), and the lead-based paint requirements set forth at 
part 35, subparts A, B, J, K, and R of this title apply to the 
activities funded by HUD under this program.''

CC. Corrections to Sec.  891.155 and Sec.  891.325 To Cite Subpart J of 
24 CFR Part 35 as an Applicable Subpart

    Part 891 of HUD's regulations (24 CFR part 891) pertains to 
Supportive Housing for the Elderly and Persons With Disabilities under 
Section 202 of the Housing Act of 1959 (12 U.S.C. 1708) and Section 811 
of the Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 
8013). These programs provide a Federal capital advance and project-
based rental assistance. The capital advance can be used for 
rehabilitation. Therefore, subpart J, which provides the requirements 
for housing receiving Federal rehabilitation assistance, should apply 
to these programs. (Note, however, that Sec.  35.115(a)(3) exempts 
housing designated for the elderly, or a residential property 
designated exclusively for persons with disabilities, except where a 
child less than 6 years of age resides or is expected to reside in the 
dwelling unit.) Sections 891.155 and 891.325 list the lead-based paint 
regulations that apply to these programs, but do not list subpart J as 
being applicable. Therefore, this rule adds subpart J of 24 CFR part 35 
to the list of applicable lead-based paint regulations in 24 CFR 
891.155 and 24 CFR 891.325.

DD. Correction of Sec.  982.305(b)(1)(ii) Regarding Regulatory 
Reference Numbering

    The September 15, 1999, final rule (at 64 FR 50229) at amendatory 
instruction 88, revised the Housing Choice Voucher (HCV) Program rule 
on PHA approval of assisted tenancy at Sec.  982.305(b)(3) to require 
disclosure of information on lead-based paint to the tenant before the 
lease term, in accordance with the Lead Disclosure rule, 24 CFR part 
35, subpart A. The current HCV rule places this regulatory reference at 
Sec.  982.305(b)(1)(ii). The numbering of the Lead Disclosure rule 
paragraph cited, Sec.  35.92(b)(2), was changed in the 1999 final rule 
(at 64 FR 50201, at amendatory instruction 2) to Sec.  35.13(b)(2), and 
restored to its original numbering on January 21, 2000 (at 65 FR 3386, 
at amendatory instruction 2). The HCV rule uses the Lead Disclosure 
rule numbering as changed in 1999, rather than the current numbering. 
Therefore, this rule corrects Sec.  982.305(b)(1)(ii) to use the 
current Lead Disclosure rule paragraph numbering, namely, Sec.  
35.92(b)(2).

EE. Correction of Sec.  983.203(d) Regarding Responsibility for 
Provision of Lead Information Pamphlet

    The September 15, 1999, final rule (at 64 FR 50230) at amendatory 
instruction 94, stated incorrectly at 24 CFR 983.203(d) that PHAs, in 
administering the Section 8 Project-Based Certificate program, must 
provide families with ``a copy of the lead hazard information pamphlet, 
as required by part 35, subpart A of this title.'' Under subpart A, the 
lead disclosure rule (24 CFR part 35), it is the responsibility of the 
lessor of the housing (typically the owner), not the PHA, to provide 
the pamphlet. This rule revises the requirement so that the public 
housing agency must provide the pamphlet unless it can demonstrate that 
the pamphlet has already been provided, using the same conditions as in 
Sec.  35.130 regarding previous provision of the pamphlet. Therefore, 
this rule replaces ``the PHA must provide * * * a copy of the lead 
hazard information pamphlet as required by part 35, subpart A of this 
title'' with ``the PHA must provide * * * a copy of the lead hazard 
information pamphlet described in Sec.  35.130 of this title, except 
that the PHA need not provide the pamphlet if the PHA can demonstrate 
that the pamphlet has already been provided in accordance with Sec.  
35.130 of this title.''

Findings and Certifications

Justification for Final Rulemaking

    In general, HUD publishes a rule for public comment before issuing 
a rule for effect, in accordance with its own regulations on rulemaking 
at 24 CFR part 10. Part 10, however, provides for exceptions from that 
general rule where HUD finds good cause to omit advance notice and 
public participation. The good cause requirement is satisfied when the 
prior public procedure is ``impracticable, unnecessary, or contrary to 
the public interest'' (24 CFR part 10).
    HUD finds that good cause exists to publish this final rule for 
effect without first soliciting public comment, in that prior public 
procedure is unnecessary. The reason for HUD's determination is that 
this rule merely makes conforming and clarifying amendments to certain 
regulations in 24 CFR parts 35, 200, 291, 598, 891, 982 and 983. No 
substantive changes to the regulations are made by this rule. This rule 
merely gives clarity and facilitates understanding and, therefore, 
public comment is unnecessary.

Environmental Impact

    A Finding of No Significant Impact with respect to the environment 
for this rule has been made in accordance with HUD regulations at 24 
CFR part 50, which implement section 102(2)(C) of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321(2)(C)). The Finding of 
No Significant Impact is available for public inspection between 8 a.m. 
and 5 p.m. weekdays in the Regulations Division, Office of General 
Counsel, Department of Housing and Urban Development, Room 10276, 451 
Seventh Street, SW., Washington, DC 20410-0500.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
establishes requirements for Federal agencies to assess the effects of 
their regulatory actions on State, local, and tribal governments and 
the private sector. This final rule does not impose a Federal mandate 
on any State, local, or tribal governments, or on the private sector 
within the meaning of the Unfunded Mandates Reform Act of 1995.

Regulatory Flexibility Act

    The Secretary, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605(b)), has reviewed this rule before publication and by 
approving it certifies that this rule does not have a significant 
economic impact on a substantial number of small entities. There are no

[[Page 34271]]

anti-competitive discriminatory aspects of the rule with regard to 
small entities, and there are no unusual procedures that would need to 
be complied with by small entities.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
either imposes substantial direct compliance costs on State and local 
governments and is not required by statute, or the rule preempts State 
law, unless the agency meets the consultation and funding requirements 
of section 6 of the Executive Order. This rule does not have federalism 
implications and does not impose substantial direct compliance costs on 
state and local governments or preempt State law within the meaning of 
the Executive Order.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers are 14.157, 
14.244, 14.311, 14.871, and 14.900.

List of Subjects in 24 CFR

Part 35

    Grant programs-housing and community development, Lead poisoning, 
Mortgage insurance, Rent subsidies, Reporting and recordkeeping 
requirements.

Part 200

    Administrative practice and procedure, Claims, Equal employment 
opportunity, Fair housing, Housing standards, Lead poisoning, Loan 
programs-housing and community development, Mortgage insurance, 
Organization and functions (Government agencies), Penalties, Reporting 
and recordkeeping requirements, Social security, Unemployment 
compensation, Wages.

Part 291

    Community facilities, Homeless, Low and moderate income housing, 
Mortgages, Reporting and recordkeeping requirements, Surplus Government 
property.

Part 598

    Community development, Indians, Intergovernmental relations, 
Reporting and recordkeeping requirements, Urban areas.

Part 891

    Aged, Grant programs-housing and community development, Individuals 
with disabilities, Loan programs-housing and community development, 
Rent subsidies, Reporting and recordkeeping requirements.

Part 982

    Grant programs-housing and community development, Grant programs-
Indians, Indians, Public housing, Rent subsidies, Reporting and 
recordkeeping requirements.

Part 983

    Grant programs-housing and community development, Rent subsidies, 
Reporting and recordkeeping requirements.

0
Accordingly, for the reasons described in the preamble, the Department 
amends 24 CFR parts 35, 200, 291, 598, 891, 982, and 983 as follows:

PART 35--LEAD-BASED PAINT POISONING PREVENTION IN CERTAIN 
RESIDENTIAL STRUCTURES

0
1. The authority citation for part 35 continues to read as follows:


    Authority: 42 U.S.C. 3535(d), 4821, and 4851.


0
2. Section 35.110 is amended by removing the definition of ``CILP 
recipient,'' and by revising the definitions of ``designated party,'' 
``dust-lead hazard,'' ``grantee,'' ``soil-lead hazard'' and ``visual 
assessment'' to read as follows:


Sec.  35.110  Definitions.

* * * * *
    Designated party means a Federal agency, grantee, subrecipient, 
participating jurisdiction, housing agency, Indian Tribe, tribally 
designated housing entity (TDHE), sponsor, or property owner 
responsible for complying with applicable requirements.
* * * * *
    Dust-lead hazard means surface dust that contains a dust-lead 
loading (area concentration of lead) equal to or exceeding the levels 
promulgated by the EPA at 40 CFR 745.65 or, if such levels are not in 
effect, the standards for dust-lead hazards in Sec.  35.1320.
* * * * *
    Grantee means any state or local government, Indian Tribe, IHBG 
recipient, insular area or nonprofit organization that has been 
designated by HUD to administer Federal housing assistance under a 
program covered by subparts J and K of this part, except the HOME 
program.
* * * * *
    Soil-lead hazard means bare soil on residential property that 
contains lead equal to or exceeding levels promulgated by the EPA at 40 
CFR 745.65 or, if such levels are not in effect, the standards for 
soil-lead hazards in Sec.  35.1320.
* * * * *
    A visual assessment alone is not considered an evaluation for the 
purposes of this part. Visual assessment means looking for, as 
applicable:
    Visual assessment means looking for, as applicable.
    (1) Deteriorated paint;
    (2) Visible surface dust, debris, and residue as part of a risk 
assessment or clearance examination; or
    (3) The completion or failure of a hazard reduction measure.
* * * * *

0
3. Section 35.125 is amended by revising paragraphs (a), (a)(1)(i), 
(b)(1), (b)(1)(i), (b)(1)(ii), (b)(1)(iii), and by adding new 
paragraphs (b)(1)(iv) and (b)(3) to read as follows:


Sec.  35.125  Notice of evaluation and hazard reduction activities.

    The following activities shall be conducted if notice is required 
by subparts D and F through M of this part.
* * * * *
    (a) Notice of evaluation or presumption. When evaluation is 
undertaken and lead-based paint or lead-based paint hazards are found 
to be present, or if a presumption is made that lead-based paint or 
lead-based paint hazards are present in accordance with the options 
described in Sec.  35.120, the designated party shall provide a notice 
to occupants within 15 calendar days of the date when the designated 
party receives the report or makes the presumption. A visual assessment 
alone is not considered an evaluation for the purposes of this part. If 
only a visual assessment alone is required by this part, and no 
evaluation is performed, a notice of evaluation or presumption is not 
required.
    (1) * * *
    (i) A summary of the nature, dates, scope, and results of the 
evaluation;
* * * * *
    (b) * * *
    (1) Provide a notice to occupants not more than 15 calendar days 
after the hazard reduction activities (including paint stabilization) 
have been completed. Notice of hazard reduction shall include, but not 
be limited to:
    (i) A summary of the nature, dates, scope, and results (including 
clearance) of the hazard reduction activities;
    (ii) A contact name, address, and telephone number for more 
information;
    (iii) Available information on the location of any remaining lead-
based paint in the rooms, spaces, or areas where hazard reduction 
activities were

[[Page 34272]]

conducted, on a surface-by-surface basis; and
    (iv) The date of the notice.
* * * * *
    (3) Provision of a notice of hazard reduction is not required if a 
clearance examination is not required.
* * * * *

0
4. Section 35.165 is amended by revising paragraphs (a)(1) introductory 
text, (a)(2), (b)(2), (b)(3), (d)(1) introductory text, and (d)(2) to 
read as follows:


Sec.  35.165  Prior evaluation or hazard reduction.

* * * * *
    (a) Lead-based paint inspection. (1) A lead-based paint inspection 
conducted before March 1, 2000, meets the requirements of this part if:
* * * * *
    (2) A lead-based paint inspection conducted on or after March 1, 
2000, must have been conducted by a certified lead-based paint 
inspector.
    (b) * * *
    (2) A risk assessment conducted before March 1, 2000, meets the 
requirements of this part if, at the time of the risk assessment, the 
risk assessor was approved by a state or Indian Tribe to perform risk 
assessments. It is not necessary that the state or tribal approval 
program had EPA authorization at the time of the risk assessment.
    (3) A risk assessment conducted on or after March 1, 2000, must 
have been conducted by a certified risk assessor.
* * * * *
    (c) * * *
    (d) Abatement. (1) An abatement conducted before March 1, 2000, 
meets the requirements of this part if:
* * * * *
    (2) An abatement conducted on or after March 1, 2000, must have 
been conducted under the supervision of a certified lead-based paint 
abatement supervisor.

0
5. Section 35.615 is amended by revising paragraph (a) to read as 
follows:


Sec.  35.615  Notices and pamphlet.

    (a) Notice. If evaluation or hazard reduction is undertaken, the 
sponsor shall provide a notice to occupants in accordance with Sec.  
35.125. A visual assessment alone is not considered an evaluation for 
the purposes of this part.
* * * * *

Subpart H--Project-Based Assistance

0
6. Part 35 is amended to correct the title of subpart H to read as 
shown above.
0
7. Section 35.710 is amended by revising paragraph (a) to read as 
follows:


Sec.  35.710  Notices and pamphlet.

    (a) Notice. If evaluation or hazard reduction is undertaken, each 
owner shall provide a notice to occupants in accordance with Sec.  
35.125. A visual assessment alone is not considered an evaluation for 
the purposes of this part.
* * * * *

0
8. Section 35.810 is amended by revising paragraph (a) to read as 
follows:


Sec.  35.810  Notices and pamphlet.

    (a) Notices. When evaluation or hazard reduction is undertaken, the 
Department shall provide a notice to occupants in accordance with Sec.  
35.125. A visual assessment alone is not considered an evaluation for 
the purposes of this part.
* * * * *

0
9. Section 35.910 is revised to read as follows:


Sec.  35.910  Notices and pamphlet.

    (a) Notices. In cases where evaluation or hazard reduction or both 
are undertaken as part of federally funded rehabilitation, the grantee 
or participating jurisdiction shall provide a notice to occupants in 
accordance with Sec.  35.125. A visual assessment alone is not 
considered an evaluation for the purposes of this part.
    (b) Lead hazard information pamphlet. The grantee or participating 
jurisdiction shall provide the lead hazard information pamphlet in 
accordance with Sec.  35.130.

0
10. Section 35.915 is revised to read as follows:


Sec.  35.915  Calculating Federal rehabilitation assistance.

    (a) Applicability. This section applies to recipients of Federal 
rehabilitation assistance.
    (b) Rehabilitation assistance. (1) Lead-based paint requirements 
for rehabilitation fall into three categories that depend on the amount 
of Federal rehabilitation assistance provided. The three categories 
are:
    (i) Assistance of up to and including $5,000 per unit;
    (ii) Assistance of more than $5,000 per unit up to and including 
$25,000 per unit; and
    (iii) Assistance of more than $25,000 per unit.
    (2) For purposes of implementing Sec. Sec.  35.930 and 35.935, the 
amount of rehabilitation assistance is the lesser of two amounts: the 
average Federal assistance per assisted dwelling unit and the average 
per unit hard costs of rehabilitation. Federal assistance includes all 
Federal funds assisting the project, regardless of the use of the 
funds. Federal funds being used for acquisition of the property are to 
be included as well as funds for construction, permits, fees, and other 
project costs. The hard costs of rehabilitation include all hard costs, 
regardless of source, except that the costs of lead-based paint hazard 
evaluation and hazard reduction activities are not to be included. 
Costs of site preparation, occupant protection, relocation, interim 
controls, abatement, clearance, and waste handling attributable to 
compliance with the requirements of this part are not to be included in 
the hard costs of rehabilitation. All other hard costs are to be 
included, regardless of whether the source of funds is Federal or non-
Federal, public or private.
    (c) Calculating rehabilitation assistance in properties with both 
assisted and unassisted dwelling units. For a residential property that 
includes both federally assisted and non-assisted units, the 
rehabilitation costs and Federal assistance associated with non-
assisted units are not included in the calculations of the average per 
unit hard costs of rehabilitation and the average Federal assistance 
per unit.
    (1) The average per unit hard costs of rehabilitation for the 
assisted units is calculated using the following formula:

Per Unit Hard Costs of Rehabilitation $ = (a/c) + (b/d)

Where:

a = Rehabilitation hard costs for all assisted units (not including 
common areas and exterior surfaces)
b = Rehabilitation hard costs for common areas and exterior painted 
surfaces
c = Number of federally assisted units
d = Total number of units

    (2) The average Federal assistance per assisted dwelling unit is 
calculated using the following formula:

Per unit Federal assistance = e/c

Where:

e = Total Federal assistance for the project
c = Number of federally assisted units

Sec.  35.920  [Removed and reserved.]

0
11. Section 35.920 is removed and reserved.
0
12. Section 35.925 is amended by adding a new paragraph (d) to read as 
follows:


Sec.  35.925  Examples of determining applicable requirements.

* * * * *
    (d) If eight dwelling units in a residential property receive 
Federal rehabilitation assistance [symbol c in Sec.  35.915(c)(2)] out 
of a total of 10 dwelling units [d], the total Federal assistance for 
the rehabilitation project

[[Page 34273]]

is $300,000 [e], the total hard costs of rehabilitation for the 
dwelling units are $160,000 [a], and the total hard costs of 
rehabilitation for the common areas and exterior surfaces are $20,000 
[b], then the lead-based paint requirements would be those described in 
Sec.  35.930(c), because the level of Federal rehabilitation assistance 
is $22,000, which is not greater than $25,000. This is calculated as 
follows: The total Federal assistance per assisted unit is $37,500 (e/c 
= $300,000/8), the per unit hard costs of rehabilitation is $22,000 (a/
c + b/d = $160,000/8 + $20,000/10), and the level of Federal 
rehabilitation assistance is the lesser of $37,500 and $22,000.

0
13. Section 35.930 is amended by revising paragraphs (a), (b) 
introductory text, (c) introductory text, (c)(3), (d) introductory 
text, (d)(3) and by adding new paragraphs (c)(4) and (d)(4) to read as 
follows:


Sec.  35.930  Evaluation and hazard reduction requirements.

    (a) Paint testing. The grantee or participating jurisdiction shall 
either perform paint testing on the painted surfaces to be disturbed or 
replaced during rehabilitation activities, or presume that all these 
painted surfaces are coated with lead-based paint.
    (b) Residential property receiving an average of up to and 
including $5,000 per unit in Federal rehabilitation assistance. Each 
grantee or participating jurisdiction shall:
* * * * *
    (c) Residential property receiving an average of more than $5,000 
and up to and including $25,000 per unit in Federal rehabilitation 
assistance. Each grantee or participating jurisdiction shall:
* * * * *
    (3) Perform interim controls in accordance with Sec.  35.1330 of 
all lead-based paint hazards identified pursuant to paragraphs (c)(1) 
and (c)(2) of this section.
    (4) Implement safe work practices during rehabilitation work in 
accordance with Sec.  35.1350 and repair any paint that is disturbed 
and is known or presumed to be lead-based paint.
    (d) Residential property receiving an average of more than $25,000 
per unit in Federal rehabilitation assistance. Each grantee or 
participating jurisdiction shall:
* * * * *
    (3) Abate all lead-based paint hazards identified by the paint 
testing or risk assessment conducted pursuant to paragraphs (d)(1) and 
(d)(2) of this section, in accordance with Sec.  35.1325, except that 
interim controls are acceptable on exterior surfaces that are not 
disturbed by rehabilitation and on paint-lead hazards that have an area 
smaller than the de minimis limits of Sec.  35.1350(d). If abatement of 
a paint-lead hazard is required, it is necessary to abate only the 
surface area with hazardous conditions.
    (4) Implement safe work practices during rehabilitation work in 
accordance with Sec.  35.1350 and repair any paint that is disturbed 
and is known or presumed to be lead-based paint.

0
14. Section 35.935 is revised to read as follows:


Sec.  35.935  Ongoing lead-based paint maintenance activities.

    In the case of a rental property receiving Federal rehabilitation 
assistance under the HOME program, the grantee or participating 
jurisdiction shall require the property owner to incorporate ongoing 
lead-based paint maintenance activities in regular building operations, 
in accordance with Sec.  35.1355(a).

0
15. Section 35.1015 is amended by revising paragraph (c) to read as 
follows:


Sec.  35.1015  Visual assessment, paint stabilization, and maintenance.

* * * * *
    (c) The grantee or participating jurisdiction shall require the 
incorporation of ongoing lead-based paint maintenance activities into 
regular building operations, in accordance with Sec.  35.1355(a), if 
the dwelling unit has a continuing, active financial relationship with 
a Federal housing assistance program, except that mortgage insurance or 
loan guarantees are not considered to constitute an active programmatic 
relationship for the purposes of this part.
* * * * *

0
16. Section 35.1110 is amended by revising paragraph (a) to read as 
follows:


Sec.  35.1110  Notices and pamphlets.

    (a) Notice. In cases where evaluation or hazard reduction is 
undertaken, each public housing agency (PHA) shall provide a notice to 
residents in accordance with Sec.  35.125. A visual assessment alone is 
not considered an evaluation for purposes of this part.
* * * * *

0
17. Section 35.1210 is amended by revising paragraph (a) to read as 
follows:


Sec.  35.1210  Notices and pamphlet.

    (a) Notice. In cases where evaluation or paint stabilization is 
undertaken, the owner shall provide a notice to residents in accordance 
with Sec.  35.125. A visual assessment alone is not considered an 
evaluation for purposes of this part.
* * * * *

0
18. Section 35.1215 is amended by revising paragraph (b) and by adding 
new paragraph (d) to read as follows:


Sec.  35.1215  Activities at initial and periodic inspection.

* * * * *
    (b) The owner shall stabilize each deteriorated paint surface in 
accordance with Sec. Sec.  35.1330(a) and (b) before commencement of 
assisted occupancy. If assisted occupancy has commenced prior to a 
periodic inspection, such paint stabilization must be completed within 
30 days of notification of the owner of the results of the visual 
assessment. Paint stabilization is considered complete when clearance 
is achieved in accordance with Sec.  35.1340. If the owner does not 
complete the hazard reduction required by this section, the dwelling 
unit is in violation of Housing Quality Standards (HQS) until the 
hazard reduction is completed or the unit is no longer covered by this 
subpart because the unit is no longer under a housing assistance 
payment (HAP) contract with the housing agency.
* * * * *
    (d) The designated party may grant the owner an extension of time 
to complete paint stabilization and clearance for reasonable cause, but 
such an extension shall not extend beyond 90 days after the date of 
notification to the owner of the results of the visual assessment.

0
19. Section 35.1220 is revised to read as follows:


Sec.  35.1220  Ongoing lead-based paint maintenance activities.

    Notwithstanding the designation of the PHA, grantee, participating 
jurisdiction, or Indian Housing Block Grant (IHBG) recipient as the 
designated party for this subpart, the owner shall incorporate ongoing 
lead-based paint maintenance activities into regular building 
operations in accordance with Sec.  35.1355(a).

0
20. Section 35.1320 is revised to read as follows:


Sec.  35.1320  Lead-based paint inspections, paint testing, risk 
assessments, lead-hazard screens, and reevaluations.

    (a) Lead-based paint inspections and paint testing. Lead-based 
paint inspections shall be performed in accordance with methods and 
standards established either by a State or Tribal program authorized by 
the EPA under 40 CFR 745.324, or by the EPA at 40 CFR 745.227(b) and 
(h). Paint testing to

[[Page 34274]]

determine the presence or absence of lead-based paint on deteriorated 
paint surfaces or surfaces to be disturbed or replaced shall be 
performed by a certified lead-based paint inspector or risk assessor.
    (b) Risk assessments, lead-hazard screens and reevaluations. (1) 
Risk assessments and lead-hazard screens shall be performed in 
accordance with methods and standards established either by a state or 
tribal program authorized by the EPA, or by the EPA at 40 CFR 
745.227(c), (d), and (h) and paragraph (b)(2) of this section. 
Reevaluations shall be performed by a certified risk assessor in 
accordance with Sec.  35.1355(b) and paragraph (b)(2) of this section.
    (2) Risk assessors shall use standards for determining dust-lead 
hazards and soil-lead hazards that are at least as protective as those 
promulgated by the EPA at 40 CFR 745.227(h) or, if such standards are 
not in effect, the following levels for dust or soil:
    (i) Dust. A dust-lead hazard is surface dust that contains a mass-
per-area concentration (loading) of lead, based on wipe samples, equal 
to or exceeding the applicable level in the following table:

                                               Dust Lead Standards
----------------------------------------------------------------------------------------------------------------
                                                                         Surface
                                        ------------------------------------------------------------------------
           Evaluation method                                 Interior window
                                          Floors, [mu]g/ft   sills, [mu]g/ft   Window troughs,  [mu]g/ft \2\ (mg/
                                          \2\  (mg/m \2\)    \2\  (mg/m \2\)                 m \2\)
----------------------------------------------------------------------------------------------------------------
Risk Assessment........................          40 (0.43)          250 (2.7)  Not Applicable.
Lead Hazard Screen.....................          25 (0.27)          125 (1.4)  Not Applicable.
Reevaluation...........................          40 (0.43)          250 (2.7)  Not Applicable.
Clearance..............................          40 (0.43)          250 (2.7)  400 (4.3).
----------------------------------------------------------------------------------------------------------------


    Note 1: ``Floors'' includes carpeted and uncarpeted interior 
floors.


    Note 2: A dust-lead hazard is present or clearance fails when 
the weighted arithmetic mean lead loading for all single-surface or 
composite samples is equal to or greater than the applicable 
standard. For composite samples of two to four subsamples, the 
standard is determined by dividing the standard in the table by one 
half the number of subsamples. See EPA regulations at 40 CFR 745.63 
and 745.227(h)(3)(i).

    (ii) Soil. (A) A soil-lead hazard for play areas frequented by 
children under six years of age is bare soil with lead equal to or 
exceeding 400 parts per million (micrograms per gram).
    (B) For the rest of the yard, a soil-lead hazard is bare soil that 
totals more than 9 square feet (0.8 square meters) per property with 
lead equal to or exceeding an average of 1,200 parts per million 
(micrograms per gram).
    (3) Lead-hazard screens shall be performed in accordance with the 
methods and standards established either by a state or Tribal program 
authorized by the EPA, or by the EPA at 40 CFR 745.227(c), and 
paragraphs (b)(1) and (b)(2) of this section. If the lead-hazard screen 
indicates the need for a follow-up risk assessment (e.g., if dust-lead 
measurements exceed the levels established for lead-hazard screens in 
paragraph (b)(2)(i) of this section), a risk assessment shall be 
conducted in accordance with paragraphs (b)(1) and (b)(2) of this 
section. Dust, soil, and paint samples collected for the lead-hazard 
screen may be used in the risk assessment. If the lead hazard screen 
does not indicate the need for a follow-up risk assessment, no further 
risk assessment is required.
    (c) It is strongly recommended, but not required, that lead-based 
paint inspectors, risk assessors, and sampling technicians provide a 
plain-language summary of the results suitable for posting or 
distribution to occupants in compliance with Sec.  35.125.

0
21. Section 35.1330 is amended by revising paragraphs (a)(4), 
(a)(4)(ii) and (iii), (d)(1), and (f)(3)(i)(C) to read as follows:


Sec.  35.1330  Interim controls.

* * * * *
    (a) * * *
    (4) A person performing interim controls must be trained in 
accordance with the hazard communication standard for the construction 
industry issued by the Occupational Safety and Health Administration of 
the U.S. Department of Labor at 29 CFR 1926.59, and either be 
supervised by an individual certified as a lead-based paint abatement 
supervisor or have completed successfully one of the following lead-
safe work practices courses, except that this supervision or lead-safe 
work practices training requirement does not apply to work that 
disturbs painted surfaces less than the de minimis limits of Sec.  
35.1350(d):
* * * * *
    (ii) A lead-based paint abatement worker course accredited in 
accordance with 40 CFR 745.225; or
    (iii) Another course approved by HUD for this purpose after 
consultation with the EPA. A current list of approved courses is 
available on the Internet at http://www.hud.gov/offices/lead, or by 
mail or fax from the HUD Office of Healthy Homes and Lead Hazard 
Control at (202) 755-1785, extension 104 (this is not a toll-free 
number). Persons with hearing or speech impediments may access the 
above telephone number via phone or TTY by calling the toll-free 
Federal Information Relay Service at (800) 877-8339.
* * * * *
    (d) Chewable surfaces. (1) Chewable surfaces are required to be 
treated only if there is evidence of teeth marks, indicating that a 
child of less than six years of age has chewed on the painted surface, 
and lead-based paint is known or presumed to be present on the surface.
* * * * *
    (f) * * *
    (3) * * *
    (i) * * *
    (C) The impermanent surface covering material shall not contain 
more than 400 [mu]g/g of lead.
* * * * *

0
22. Section 35.1340 is amended by revising paragraphs (b) introductory 
text, (b)(1)(iii), (b)(1)(iv), (b)(2)(i), and (g) to read as follows:


Sec.  35.1340  Clearance.

* * * * *
    (b) Clearance following activities other than abatement. Clearance 
examinations performed following interim controls, paint stabilization, 
standard treatments, ongoing lead-based paint maintenance, or 
rehabilitation shall be performed in accordance with the requirements 
of this paragraph (b) and paragraphs (c) through (g) of this section. 
Clearance is not required if the work being cleared does not disturb 
painted surfaces of a total area more than that set forth in Sec.  
35.1350(d).

[[Page 34275]]

    (1) * * *
* * * * *
    (iii) A person who has successfully completed a training course for 
sampling technicians (or a discipline of similar purpose and title) 
that is developed or accepted by EPA or a State or tribal program 
authorized by EPA pursuant to 40 CFR part 745, subpart Q, and that is 
given by a training provider accredited by EPA or a State or Indian 
Tribe for training in lead-based paint inspection or risk assessment, 
provided a certified risk assessor or a certified lead-based paint 
inspector approves the work of the sampling technician and signs the 
report of the clearance examination; or
    (iv) A technician licensed or certified by EPA or a State or Indian 
Tribe to perform clearance examinations without the approval of a 
certified risk assessor or certified lead-based paint inspector, 
provided that a clearance examination by such a licensed or certified 
technician shall be performed only for a single-family property or 
individual dwelling units and associated common areas in a multi-unit 
property, and provided further that a clearance examination by such a 
licensed or certified sampling technician shall not be performed using 
random sampling of dwelling units or common areas in multifamily 
properties, except that a clearance examination performed by such a 
licensed or certified sampling technician is acceptable for any 
residential property if the clearance examination is approved and the 
report signed by a certified risk assessor or a certified lead-based 
paint inspector.
    (2) Required activities. (i) Clearance examinations shall include a 
visual assessment, dust sampling, submission of samples for analysis 
for lead in dust, interpretation of sampling results, and preparation 
of a report. Soil sampling is not required. Clearance examinations 
shall be performed in dwelling units, common areas, and exterior areas 
in accordance with this section and the steps set forth at 40 CFR 
745.227(e)(8). If clearance is being performed after lead-based paint 
hazard reduction, paint stabilization, maintenance, or rehabilitation 
that affected exterior surfaces but did not disturb interior painted 
surfaces or involve elimination of an interior dust-lead hazard, 
interior clearance is not required if window, door, ventilation, and 
other openings are sealed during the exterior work. If clearance is 
being performed for more than 10 dwelling units of similar construction 
and maintenance, as in a multifamily property, random sampling for the 
purpose of clearance may be conducted in accordance with 40 CFR 
745.227(e)(9).
* * * * *
    (g) Worksite clearance. Clearance of only the worksite is permitted 
after work covered by Sec. Sec.  35.930, 35.1330, 35.1335, or 35.1355, 
when containment is used to ensure that dust and debris generated by 
the work is kept within the worksite. Otherwise, clearance must be of 
the entire dwelling unit, common area, or outbuilding, as applicable. 
When clearance is of an interior worksite that is not an entire 
dwelling unit, common area, or outbuilding, dust samples shall be taken 
for paragraph (b) of this section as follows:
    (1) Sample, from each of at least four rooms, hallways, stairwells, 
or common areas within the dust containment area:
    (i) The floor (one sample); and
    (ii) Windows (one interior sill sample and one trough sample, if 
present); and
    (2) Sample the floor in a room, hallway, stairwell, or common area 
connected to the dust containment area, within five feet outside the 
area (one sample).

0
23. Section 35.1350 is amended by revising paragraph (b) to read as 
follows:


Sec.  35.1350  Safe work practices.

* * * * *
    (b) Occupant protection and worksite preparation. Occupants and 
their belongings shall be protected, and the worksite prepared, in 
accordance with Sec.  35.1345. A person performing this work shall be 
trained on hazards and either be supervised or have completed 
successfully one of the specified courses, in accordance with Sec.  
35.1330(a)(4).
* * * * *

0
24. Section 35.1355 is amended by revising paragraph (a)(1), removing 
paragraphs (a)(1)(i) and (a)(1)(ii), and by correcting in paragraph 
(b)(1)(iii) the misspelling of the word ``inclosures'' to 
``enclosures,'' to read as follows:


Sec.  35.1355  Ongoing lead-based paint maintenance and reevaluation 
activities.

    (a) * * *
    (1) Maintenance activities need not be conducted in accordance with 
this section if a lead-based paint inspection indicates that no lead-
based paint is present in the dwelling units, common areas, and on 
exterior surfaces, or a clearance report prepared in accordance with 
Sec.  35.1340(a) indicates that all lead-based paint has been removed.
* * * * *
    (b) * * *
    (1) * * *

PART 200--INTRODUCTION TO FHA PROGRAMS

0
25. The authority citation for part 200 continues to read as follows:


    Authority: 12 U.S.C. 1702-1715z-21; 42 U.S.C. 3535(d).

Sec.  200.810  [Amended]

0
26. Section 200.810 is amended by removing and reserving paragraph 
(a)(2).

PART 291--DISPOSITION OF HUD-ACQUIRED SINGLE FAMILY PROPERTY

0
27. The authority citation for part 291 continues to read as follows:


    Authority: 12 U.S.C. 1701 et seq.; 42 U.S.C. 1441, 1441a, and 
3535(d).


Sec.  291.430  [Amended]

0
28. Section 291.430 is amended by adding the word ``to'' between 
``apply'' and ``activities''.

PART 598--URBAN EMPOWERMENT ZONES: ROUND TWO AND THREE DESIGNATIONS

0
29. The authority citation for part 598 continues to read as follows:


    Authority: 26 U.S.C. 1391; 42 U.S.C. 3535(d).

0
30. Part 598, subpart E is amended by adding new Sec.  598.408 to read 
as follows:


Sec.  598.408  Lead-based paint requirements.

    The Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-
4846), the Residential Lead-Based Paint Hazard Reduction Act of 1992 
(42 U.S.C. 4851-4856), and the lead-based paint requirements set forth 
at part 35, subparts A, B, J, K, and R of this title apply to the 
activities funded by HUD under this program.

PART 891--SUPPORTIVE HOUSING FOR THE ELDERLY AND PERSONS WITH 
DISABILITIES

0
31. The authority citation for part 891 continues to read as follows:


    Authority: 12 U.S.C. 1701q; 42 U.S.C. 1437f, 3535(d), and 8013.


0
32. Section 891.155 is amended by revising paragraph (g) to read as 
follows:


Sec.  891.155  Other Federal requirements.

* * * * *
    (g) Lead-based paint. The requirements of the Lead-Based Paint 
Poisoning Prevention Act (42 U.S.C. 4821-4846), the Residential Lead-
Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856), and 
implementing

[[Page 34276]]

regulations at part 35, subparts A, B, H, J, and R of this title apply 
to these programs.

0
33. Section 891.325 is revised to read as follows:


Sec.  891.325  Lead-based paint requirements.

    The requirements of the Lead-Based Paint Poisoning Prevention Act 
(42 U.S.C. 4821-4846), the Residential Lead-Based Paint Hazard 
Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing 
regulations at part 35, subparts A, B, H, J, and R of this title apply 
to the section 811 program and to projects funded under Sec. Sec.  
891.655 through 891.790.

PART 982--SECTION 8 TENANT-BASED ASSISTANCE: HOUSING CHOICE VOUCHER 
PROGRAM

0
34. The authority citation for part 982 continues to read as follows:

    Authority: 42 U.S.C. 1437f and 3535(d).


0
35. Section 982.305 is amended by revising paragraph (b)(1)(ii) to read 
as follows:


Sec.  982.305  PHA approval of assisted tenancy.

* * * * *
    (b) * * *
    (1) * * *
    (ii) The landlord and the tenant have executed the lease (including 
the HUD-prescribed tenancy addendum, and the lead-based paint 
disclosure information as required in Sec.  35.92(b) of this title); 
and
* * * * *

PART 983--SECTION 8 PROJECT-BASED CERTIFICATE PROGRAM

0
36. The authority citation for part 983 continues to read as follows:

    Authority: 42 U.S.C. 1437f and 3535(d).


0
37. Section 983.203 is amended by revising paragraph (d) introductory 
text to read as follows:


Sec.  983.203  Family participation.

* * * * *
    (d) Briefing of families. When a family is selected to occupy a 
project-based unit, the PHA must provide the family with information 
concerning the tenant rent and any applicable utility allowance, and a 
copy of the lead hazard information pamphlet described in Sec.  35.130 
of this title, except that the PHA need not provide the pamphlet if the 
PHA can demonstrate that the pamphlet has already been provided in 
accordance with Sec.  35.130 of this title. The family also must be 
provided with a full explanation of the following, either in group or 
individual sessions:
* * * * *

    Dated: June 9, 2004.
Alphonso Jackson,
Secretary.
[FR Doc. 04-13873 Filed 6-18-04; 8:45 am]
BILLING CODE 4210-32-P