# Office of Lead-Based Paint Abatement and Poisoning Prevention; Requirements for Notification, Evaluation and Reduction of Lead-Based Paint Hazards in Federally Owned Residential Property and Housing Receiving Federal Assistance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A96-14101 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** June 7, 1996 - **Citation:** 61 FR 29170 ## Text SUMMARY: This proposed rule implements sections 1012 and 1013 of the Residential Lead-Based Paint Hazard Reduction Act of 1992, Title X of the Housing and Community Development Act of 1992. These sections set forth significant new requirements concerning lead-based paint hazard notification, evaluation, and reduction for federally owned residential property and housing receiving Federal assistance. This proposed rule constitutes a major revision of the Department's lead-based paint regulations. For the first time, HUD's lead-based paint requirements for all Federal programs will be consolidated in the Code of Federal Regulations. One part or subpart will set out programmatic requirements concerning lead-based paint hazard notification, evaluation and reduction for all covered HUD programs, as well as programs of other Federal agencies. One part or subpart will distill information concerning how to perform lead-based paint hazard evaluation and reduction activities, such as risk assessment and interim controls, based on the HUD Guidelines for the Evaluation and Control of Lead- Based Paint Hazards in Housing. Another part or subpart will set out requirements concerning lead-based paint notification for all pre-1978 residential property sold or leased, including non-federally related privately owned residential property. (This last part or subpart was published jointly by HUD and the Environmental Protection Agency as a proposed rule, on November 2, 1994; a final rule is expected soon.) DATES: Comments on this proposed rule must be received on or before September 5, 1996. The deadline for comments on the information collection requirements is August 6, 1996, although commenters are advised that a comment is best assured of having its full effect if it is received by the Office of Management and Budget (OMB) within 30 days of publication. ADDRESSES: Interested persons are invited to submit comments regarding this proposed rule to the Rules Docket Clerk, Office of General Counsel, room 10276, Department of Housing and Urban Development, 451 7th Street, SW, Washington, DC 20410-0500. Communications should refer to the above docket number and title. Facsimile (FAX) comments are not acceptable. A copy of each communication submitted will be available for public inspection and copying between 7:30 a.m. and 5:30 p.m. weekdays at the above address. Comments on the proposed information collection requirements must refer to FR-3482, Requirements for Notification, Evaluation and Reduction of Lead-Based Paint Hazards in Federally Owned Residential Property and Housing Receiving Federal Assistance, and must be sent to: Joseph F. Lackey, Jr., HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503 and Reports Liaison Officer, Office of Lead-Based Paint Abatement and Poisoning Prevention, Department of Housing & Urban Development, 451 7th Street SW., Room 4244, Washington, DC 20410. FOR FURTHER INFORMATION CONTACT: For further information on part 36 in the proposed rule, contact Joan Catherine Tetrault, and for further information on part 37 of the proposed rule contact Conrad Arnolts. The address for both of these persons is: Office of Lead-Based Paint Abatement and Poisoning Prevention, Department of Housing and Urban Development, 451 7th Street, SW, Room B-133, Washington, DC 20410-0500, Telephone: (202) 755-1805, E-mail: Joan__C.__T[email protected], or Conrad__C.__A[email protected]. For legal questions, contact Kenneth A. Markison or John B. Shumway, Office of General Counsel, Room 9262, Department of Housing and Urban Development, Telephone: (202) 708-9988, E-mail: John__B.__S[email protected]. For hearing- and speech-impaired persons, these numbers may be accessed via TTY (text telephone) by calling the Federal Information Relay Service at 1-800-877-8339. SUPPLEMENTARY INFORMATION: I. Paperwork Reduction Act Statement The information collection requirements contained in sections 36.63, 36.64, 36.70, 36.84, 36.144, 36.162, 36.164, 36.168, 36.170, 36.188, 36.208, 36.230, 36.232, 36.256, 36.274, 36.276, 36.284, 36.294, and 36.302 of this proposed rule have been submitted to the Office of Management and Budget (OMB) for review under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a valid control number. Information on the estimated public reporting burden and where to send comments is provided under the preamble heading, Other Matters. OMB is required to make a decision concerning the collection of information contained in these proposed regulations between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment on the proposed rule. II. Background A. Lead Poisoning Childhood lead poisoning is ``the most common environmental disease of young children,'' (``Strategic Plan for the Elimination of Lead Poisoning'', Centers for Disease Control (``CDC''), U.S. Department of Health and Human Services, Atlanta, Georgia, 1991) eclipsing all other environmental health hazards found in the residential environment (``The Nature and Extent of Lead Poisoning in Children in the United States: A Report to Congress'', Agency for Toxic Substances and Disease Registry, U.S. Department of Health and Human Services, Atlanta, Georgia, 1988) (hereafter ``ATSDR, 1988''). Lead is highly toxic and affects virtually every system of the body. At high exposure levels, lead poisoning can cause coma, convulsions, and death. While adults can suffer from excessive lead exposures, the groups most at risk are fetuses, infants, and children under age six. At low levels, the neurotoxic effects of lead have the greatest impact on children's developing brains and nervous systems, causing reductions in IQ and attention span, reading and learning disabilities, hyperactivity, and behavioral problems (Davis, J.M., R. Elias and L. Grant ``Current Issues in Human Lead Exposure and Regulation [[Page 29171]] of Lead'', Neurotoxicologist, 14(2-3):1528, 1993). These effects have been identified in many carefully controlled research studies (``Measuring Lead Exposure in Infants, Children and Other Sensitive Populations'', Committee on Measuring Lead in Critical Populations, Board on Environmental Studies and Toxicology, Commission on Life Sciences, National Academy of Sciences, 1993). However, the vast majority of childhood lead-poisoning cases go undiagnosed and untreated, since most poisoned children have no obvious symptoms. Although significant declines have been observed in the overall mean blood lead levels of children, which can be attributed to Federal Government actions resulting in the removal of lead from gasoline and soldered cans, approximately 1.7 million children are estimated to have blood lead levels high enough to be of a health concern. Lead poisoning affects children across all socioeconomic strata and in all regions of the country. However, because lead-based paint hazards are most severe in older housing in disrepair, the poor in inner cities are disproportionately affected. In some inner city communities, over half of all young children have lead levels exceeding the CDC threshold of concern (10 micrograms per deciliter). Nationwide, African-American children of low and middle income families are twice as likely to be lead poisoned as white children of similar income families (Phase I of the Third National Health and Nutrition Examination Survey, NHANES III, 1988-1992, as reported in the Journal of American Medical Association, July 27, 1994). Today, children in the United States are lead poisoned primarily through ingestion by normal hand-to-mouth activity and, to a lesser extent, inhalation. Because lead is ubiquitous in industrial societies, there are many sources and pathways of lead exposure. The foremost source of childhood lead exposure in the United States today is lead- based paint and the accompanying lead-contaminated dust and soil found in and around older houses (``Preventing Lead Poisoning in Young Children'', CDC, U.S. Department of Health and Human Services, Atlanta, Georgia, 1991; Rabinowitz, M., J. Leviton, H. Needleman, D. Bellinger and C. Waternaux, ``Environmental Correlates of Infant Blood Lead Levels in Boston'', Environmental Research 38:96-107, 1985). As early as 1897, lead-based paint was identified as a cause of childhood lead poisoning (Turner, 1897). Many countries prohibited the use of lead in residential paints as far back as 1922 (Rabin, R., ``Warnings Unheeded: A History of Lead Poisoning'', American Journal of Public Health 79:1668-1674, 1989). Lead was a major ingredient in most interior and exterior house oil-based paints prior to 1950, with some paints containing as much as 50 percent lead by dry weight. In the early 1950s, other ingredients became more popular, but some lead pigments, corrosion inhibitors, and drying agents were still used. In the 1950's and 1960's, several large cities in the United States banned the use of lead-based paint (using varying definitions) on interior surfaces in residential structures. In 1955, the paint industry adopted a voluntary standard limiting the use of lead in interior paints to no more than 1 percent by weight of nonvolatile solids. In 1972, HUD prohibited the use of lead-based paint (at the 1 percent standard) in HUD-associated housing. In 1972, the Consumer Product Safety Commission (``CPSC'') reduced the acceptable lead content in residential paint to 0.5 percent, and in 1978 subsequently banned the sale of residential paint containing greater than 0.06 percent lead. CPSC also prohibited the use of such paint in residences and other areas where consumers have direct contact with painted surfaces. HUD estimates that three-quarters of pre-1980 dwelling units contain some lead-based paint. The likelihood, extent, and concentration of lead-based paint all increase with the age of the building. Fully 90 percent of privately owned dwelling units constructed before 1940 contain some lead-based paint, 80 percent of dwelling units constructed between 1940 and 1959, and 62 percent of dwelling units constructed between 1960 and 1979 (``Comprehensive and Workable Plan for the Abatement of Lead-Based Paint in Privately-Owned Housing: A Report to Congress'', U.S. Department of Housing and Urban Development, Washington, D.C., December 7, 1990). Because the greatest risk is in residential property constructed before 1960, older property generally commands a higher priority for lead hazard controls. However, there is evidence that significant amounts of lead-based paint were sold as late as 1971, when New York City's Health Department tested 78 ``new'' residential paints and found eight of them to have lead ranging from 2.6 percent to 10.8 percent (Bird, D., ``High Lead Paints Listed by City'', NY Times, August 4, 1971:18). For many years, the conventional belief was that in order to be poisoned children must eat lead paint chips. More recent medical research has determined that the most common cause of childhood lead exposure is the ingestion, through hand-to-mouth transmission, of lead- contaminated surface dust (Clark, C.S., R. Bornschein, P. Succop, S. Roda and B. Peace, ``Urban Lead Exposures of Children in Cincinnati, Ohio'', Journal of Chemical Speciation and Bioavailability, 3(\3/4\): 163-171, 1991; Bellinger, D., J. Sloman, A. Leviton, M. Rabinowitz, H. Needleman and C. Waternaux, ``Low Level Lead Exposure and Children's Cognitive Function in the Preschool years'', Pediatrics, (87):219-227, 1991). Lead-contaminated dust may be so fine that it cannot be seen by the naked eye. In addition, lead-contaminated dust is difficult to clean up. Leaded dust is generated when lead-based paint is damaged by moisture, abraded on friction and impact surfaces, or is disturbed in the course of repainting, renovation, repair, or abatement. Lead can also be tracked into homes from exterior dust and soil. Children can also be exposed to lead found in bare soil. High levels of lead in soil around the foundation of a house may come from the scraping and repainting of exterior lead-based paint or simply the deterioration of such paint (Ter Harr, G. and R. Arnow, ``New Information on Lead in Dirt and Dust as Related to the Childhood Lead Problem'', Environmental Health Prospectives, May, 1974:83-89; Linton, R.W., D.F.S. Natush, R.L. Solomon and C.A. Evans, ``Physicochemical Characterization of Lead in Urban Dusts: A Microanalytical Technique to Lead Tracing'', Environmental Science Technology, 14:159-164, 1980). Soil is also contaminated with lead by the fallout of lead emissions from the combustion of leaded automobile gasoline and from industrial sources (ATSDR, 1988, supra). In some areas, high leaded soil levels result from factory and smelter emissions or deteriorating lead-based paint on steel structures, such as bridges. Bare soil that is contaminated with lead poses a hazard to children who play in it. Based on the belief that children had to eat lead-based paint chips to be poisoned, the typical response to lead poisoning during the 1970s and early 1980s consisted of removing deteriorated and/or accessible lead-based paint by scraping, uncontrolled sanding, or open flame burning, all of which generated large amounts of lead dust. Approaches differed slightly from city to city. Some cities required removal of all lead-based paint to a certain height, such as 5 feet; others required only that deteriorating paint be removed. However, these traditional [[Page 29172]] abatements had one common characteristic: little attention was paid to controlling, containing and cleaning up leaded dust. In many cases, these paint removal methods actually aggravated the problem, increasing lead exposures and poisoning workers and children in the process. Several studies found that uncontrolled abatement and inadequate cleanup caused increased blood lead levels (Farfel, M. and J.J. Chisolm, Jr, ``Health and Environmental Outcomes of Traditional and Modified Practices for Abatement of Residential Lead-Based Paint'', American Journal of Public Health, 80:10,1240-1245, 1990;; Rabinowitz, M., A. Leviton and D. Bellinger, ``Home Refinishing, Lead Paint and Infant Blood Lead Levels'', American Journal of Public Health, 75(4):403-404, 1985; Amitai, Y., J.W. Graef, M.J. Brown, R.S. Gerstle, N. Kahn and P.E. Cochrane, ``Hazards of Deleading Homes of Children with Poisoning'', American Journal of Diseases of Children, 141:758- 760, 1987). The Department's Lead-Based Paint: Guidelines for Hazard Identification and Abatement in Public and Indian Housing, (1990) (``Interim Guidelines'') properly emphasized the danger of lead- contaminated dust and the need for worker protection and thorough cleanup. Title X redefines the concept of ``lead-based paint hazards.'' Under prior Federal legislation, a lead-based paint hazard was defined as any paint greater than or equal to one milligram per square centimeter (mg/cm2) of lead, regardless of its condition or location. Title X states that a lead-based paint hazard is ``any condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil or lead-contaminated paint that is deteriorated or present in accessible surfaces, friction surfaces, or impact surfaces that would result in adverse human health effects.'' Thus, under this definition, intact lead-based paint on most walls and ceilings is not considered a ``hazard,'' although the condition of the paint should be monitored and maintained to ensure that it does not become deteriorated. While most efforts to address lead hazards in residential property will now be aimed at reducing lead-based paint hazards as defined by Title X, Federal law makes one notable exception: in public and Indian housing all lead-based paint and lead-based paint hazards must be abated during modernization. Title X defines two methods of identifying or ``evaluating'' lead- based paint hazards or lead-based paint. One method, ``risk assessment'', includes wipe sampling and other environmental sampling to identify lead-based paint hazards. The other, ``inspection'' (or ``paint inspection''), determines the presence only of lead-based paint. Lead-based paint hazard evaluation may also be accomplished by a combination of the two methods. The combination approach results in an identification of all lead-based paint and lead-based paint hazards. Title X provides for three types of lead-based paint hazard control: interim controls, abatement of lead-based paint hazards, and complete abatement of all lead-based paint. Interim controls are ``measures designed to reduce temporarily human exposure or likely exposure to lead-based paint hazards.'' Abatement means ``a set of measures designed to permanently eliminate lead-based paint hazards'' or lead- based paint. To ensure that lead-based paint hazard evaluation and reduction is carried out safely and effectively, Title X imposes new requirements for consistency and quality control. B. Legislative and Regulatory History The existing lead-based paint regulations pertaining to the Department's programs, as well as to all federally owned residential property, were written pursuant to the passage of the Lead-Based Paint Act, as amended prior to 1992. This legislation required the Secretary to ``establish procedures to eliminate as far as practicable the hazards of lead-based paint poisoning with respect to any existing housing which may present such hazards and which is covered by an application for mortgage insurance or housing assistance payments under a program administered by the Secretary.'' HUD interpreted the phrase ``housing assistance payments'' broadly and therefore in 1976 the Department drafted regulations to eliminate the hazards of lead-based paint for virtually all of its programs. Part 35 of the Department's regulations in Title 24 was promulgated setting forth general procedures for the inspection and treatment of defective paint surfaces in all HUD-associated housing. Subsection 35.5(c), however, gave each Assistant Secretary the authority to develop regulations pertaining to their specific areas of responsibility, and varying program regulations concerning lead-based paint now exist throughout Title 24. The Department's lead-based paint regulations have been amended from time to time in response to changes in the law, court orders and increased knowledge about the hazards and treatment of lead-based paint. The most recent Department-wide regulatory revisions pertaining to lead-based paint were made in 1986, 1987 and 1988. Some additional revisions specific to the public and Indian housing programs were issued in 1991. On May 12, 1994, at 59 FR 24850, the Department published a proposed rule for comment that was intended to be the first phase of a process to revise HUD's lead-based paint regulations. In this first phase, HUD intended to remedy inaccuracies in existing regulations and respond to advancements in the state of knowledge in the field of lead- based paint testing and hazard reduction. The proposed rule did not reflect changes in the Title X amendment to the Lead-Based Paint Act. However, many of the public comments the Department received on this proposed rule reflected a misimpression that the proposed rule was intended to implement Title X. Other comments were impatient with HUD and felt strongly that the Department should devote its resources to implementing the new legislation, rather then making minor adjustments to the existing regulations. The Department agreed and consequently the May 12, 1994 proposed rule was withdrawn. The proposed changes to the regulations, where consistent with Title X, have been incorporated into this rulemaking. Title X represents a new and sweeping approach to the problem of lead-based paint poisoning of children, necessitating a comprehensive revision of HUD's lead-based paint regulations. Title X amends what had previously been general language contained in the Lead-Based Paint Act and sets out specific requirements for federally owned residential property and housing receiving Federal assistance. Title X stresses identification of hazards, notification to occupants of the existence of these hazards, and, in many cases, interim control and monitoring of lead-based paint hazards, although abatement of lead-based paint hazards is not precluded. This proposed rule also reflects current knowledge of the causes of lead poisoning and current lead-based paint hazard evaluation and reduction technologies and practices. The presence of lead-based paint will be more accurately identified, with fewer false negatives or false positives. Likewise, the existence, nature, severity and location of lead-based paint hazards (in dust, soil and deteriorated paint) will be more accurately identified and reported. By improving lead-based paint hazard evaluation, decisions about hazard reduction activities will be more fully informed and available resources will be better targeted to reduce [[Page 29173]] exposure to occupants and to the environment. III. HUD Reinvention In 1993 the Department launched a major restructuring, or reinvention, to meet the changing housing and development needs of communities across the country. HUD's reinvention efforts took place in the context of a broader, government-wide reinvention process, the National Performance Review, initiated by President Clinton and Vice- President Gore. The Department's proposed reinvention process will consolidate HUD programs by replacing numerous individual programs, each imposing its own prescriptive rules and requirements, with far fewer streamlined funds, which would stress performance-based objectives. These new funds will give State and local decision makers maximum flexibility to tailor Federal resources in response to local circumstances, needs and priorities. The Department also proposes to phase out direct public housing subsidies to housing agencies, converting the funds to tenant-based rental assistance that will allow residents an expanded choice of housing. Finally, the Department's reinvention will transform the Federal Housing Administration (FHA) into a business-like, government-owned corporation, enabling it to work more effectively and improve its efficiency. In order to keep pace with the changes HUD is undertaking, the Department's program regulations must also change. Although the proposed lead-based paint rule was developed to implement the statutory requirements of Title X for federally owned residential property and housing receiving Federal assistance, the Department saw this as an opportunity to revise all of its lead-based paint regulations to keep pace with changes in lead-based paint technology and in HUD service delivery. The proposed rule consolidates numerous lead-based paint regulations found throughout HUD's program regulations into two parts (parts 36 and 37) of title 24 of the Code of Federal Regulations. At the final rule stage, the Department will consider combining all of its lead-based paint regulations into one part of the Code of Federal Regulations. The Department is seeking to eliminate redundant lead-based paint regulations and to achieve a measure of consistency among the lead- based paint requirements for different HUD programs, recognizing that HUD clients often receive funding from several HUD programs and must juggle separate and sometimes inconsistent sets of program regulations. Furthermore, the Department is engaged in a larger effort to streamline and eliminate unnecessary regulations, as part of the reinvention of HUD, and the extent to which this larger effort may impact our objective to eliminate unnecessary lead-based paint regulations is not yet clear. As a result, the Department has not included as part of this proposed rule the specific deletions of lengthy lead-based paint program regulations and new references and cross citations to parts 36 and 37. These deletions, as well as new references and cross citations also will be added during final rulemaking. The proposed rule groups HUD programs by the type of assistance provided. This was done to ease the burden on HUD clients in locating the lead-based paint requirements that correspond to the type of assistance they receive. For instance, a client receiving HUD funds for rehabilitation will find only one rehabilitation subpart, rather than a rehabilitation subpart for multifamily property and a separate subpart on rehabilitation using HOME or CDBG funds. In addition, grouping HUD programs by type of assistance allows the Department greater flexibility as it consolidates many individual programs into the three performance-based funds. For example, the proposed rule has a subpart for public housing as it now exists and a subpart for tenant-based rental assistance. If a conversion of public housing subsidies to tenant-based rental assistance occurs, the appropriate lead-based paint requirements will already be in place. Finally, the proposed rule reflects HUD's efforts to balance the practical need for cost-effective, affordable lead-based paint hazard notification, evaluation and reduction measures with the statutory requirements of Title X as well as with HUD's duty to protect children living in a residential property that is owned or assisted by the Federal government from lead-based paint poisoning. Where possible, the proposed rule provides opportunities for HUD clients to implement hazard reduction measures that will best meet the needs of their communities. For example, in subpart B of part 36, States, Indian tribes and insular areas that meet certain eligibility criteria have the opportunity to develop their own lead-based paint procedures and localities located in such a State have the option of adopting these State procedures (See Section VII A.3 of the Preamble below). IV. Public Input on Rulemaking Consistent with Executive Order 12866, HUD has increased public participation in the regulatory development process. Because of the magnitude of the changes required in HUD's lead-based paint proposed rule and the potential impact of these changes, public involvement was crucial to the rulemaking process. The three main avenues for public involvement in the development of the proposed rule were the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing (June 1995) (``HUD Guidelines''), the recommendations from the Task Force on Lead-Based Paint Hazard Reduction and Financing, and three major meetings of HUD clients to seek input on the implementation of Title X. A. HUD Guidelines The HUD Guidelines were mandated by Section 1017 of Title X. They were developed by housing, public health and environmental professionals with broad experience in lead-based paint hazard identification and control. The HUD Guidelines form the basis for many of the lead-based paint hazard evaluation and reduction methods described in Part 37 of the proposed rule, and are intended to help property owners, government agencies and private contractors sharply reduce children's exposure to lead-based paint, without adding unnecessarily to the cost of housing. B. Title X Task Force The creation of the Title X Task Force on Lead-Based Paint Hazard Reduction and Financing was also mandated by Section 1015 of Title X. The Task Force submitted its recommendations, Putting the Pieces Together: Controlling Lead Hazards in the Nation's Housing, to HUD Secretary Henry Cisneros and EPA Administrator Carol Browner in July 1995. Members of the Task Force included representatives from Federal agencies, the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, the building and construction industry, landlords, tenants, primary lending institutions, private mortgage insurers, single family and multifamily real estate interests, nonprofit housing developers, property liability insurers, public housing agencies, low-income housing advocacy organizations, lead- poisoning prevention advocates and community-based organizations serving communities at high-risk for childhood lead poisoning. The mandate of the Task Force was to address sensitive issues related to lead-based paint hazards in private housing, including standards of hazard evaluation and control, financing hazard control activities, and liability and insurance for rental property [[Page 29174]] owners and hazard control contractors. The Department used the Task Force recommendations to guide the development of the lead-based paint requirements for Section 8 tenant-based rental assistance programs set forth in Part 36, subpart O, of the proposed rule. C. Meetings with HUD Clients Finally, the Department held three meetings with HUD clients on the potential implications of Title X on HUD programs. The meetings involved HUD constituents, grantees, and field staff of the Offices of Public and Indian Housing (PIH), Community Planning and Development (CPD), and Housing, as well as advocacy and tenant representatives. Participants shared their thoughts on several Title X issues including: risk assessment and interim controls, hazard reduction activities during the course of rehabilitation, occupant notice of hazard evaluation and reduction activities, and children with elevated blood- lead levels. Additional written comments were accepted from participants after the meetings. Participants' written comments, as well as meeting transcripts, are available for public review between 7:30 a.m. and 5:30 p.m. weekdays, in the Office of the Rules Docket Clerk, Office of General Council, U.S. Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410-0500. V. Scope and Applicability. A. Sections 1012 and 1013 of Title X This proposed rule implements the requirements of the Lead-Based Paint Act, as amended by Section 1012 and Section 1013 of Title X. Section 1012(a) of Title X amends the first sentence of the Lead-Based Paint Act to add the phrase ``or otherwise receives more than $5,000 in project-based assistance under a Federal housing program'' so that 42 U.S.C. 4822(a) now reads as follows: The Secretary of Housing and Urban Development * * * shall establish procedures to eliminate as far as practicable the hazards of lead-based paint poisoning with respect to any existing housing which may present such hazards and which is covered by an application for mortgage insurance or housing assistance payments under a program administered by the Secretary or otherwise receives more than $5,000 in project-based assistance under a Federal housing program. Section 1012 sets out minimum procedures for all ``target housing'' that falls within the three categories discussed above--mortgage insurance, housing assistance payments or more than $5,000 in project- based assistance. Target housing is defined in Title X as housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child who is less than 6 years of age resides or is expected to reside) or any 0-bedroom dwelling unit. HUD has interpreted the exceptions for elderly and disabled housing (See Sec. 36.2) to apply only to residential property which is designated exclusively for elderly or disabled use. After considerable discussion, HUD has determined that it would be unworkable and contrary to the intent of the statute to expand these exceptions to each particular dwelling unit occupied by an elderly or disabled person, regardless of its designation. In the past, the Department has taken the position that the requirements of the Lead-Based Paint Act applied only to new applications for mortgage insurance or other types of housing assistance, under any program administered by the Secretary. The Department interprets the new phrase added by Section 1012(a), ``more than $5,000 in project-based assistance under a Federal housing program'', to cover any Federal housing program administered by any Federal agency which provides project-based assistance. Consequently, subpart I of Part 36 applies to both new and existing inventory receiving project-based assistance under a HUD program, and subpart D applies these requirements to other Federal agencies. Finally, although Title X only requires the Secretary to establish lead-based paint procedures for residential property receiving more than $5,000 in project-based assistance, Subpart I includes additional minimal lead- based paint procedures (i.e. the procedures for tenant-based rental assistance) for multifamily property receiving less than $5,000 in project-based assistance from HUD. The Department also applies these minimal lead-based paint procedures to single family properties receiving Section 8 Moderate Rehabilitation or Project-Based Certificate assistance from HUD. The Department wants to extend some limited lead-based paint protections to properties receiving minimal project-based assistance and also wants to relieve single family owners with limited financial resources from being required to comply with the extensive lead-based paint requirements for project-based assistance. These additional minimal procedures were not included in Subpart D for project-based assistance provided by a Federal agency other than HUD. Under Title X, Congress is silent with respect to whether the new minimum procedures for lead-based paint hazard notification, evaluation and reduction apply to tenant-based rental assistance and HUD's examination of legislative intent is inconclusive. Congress did not amend the first sentence of the Lead-Based Paint Act, set out above, to delete or amend the phrase ``housing assistance payments.'' HUD has historically interpreted this general phrase to cover virtually all types of housing assistance, including tenant-based rental assistance-- the type of assistance that it seems to cover most obviously. The legislative history for Title X states, however, that housing receiving tenant-based rental assistance would be exempt from the Lead-Based Paint Act, as amended by Title X. Congress was concerned that, due to the tendency of residential properties to pass in and out of tenant- based Federal assistance programs, it would be unworkable and inequitable to impose greater burdens on owners of such properties than on other private landlords. See Senate Committee on Banking, Housing, and Urban Affairs, Senate Report 102-332, July 23, 1992 (hereafter, ``Senate Report 102-332''). In HUD's view, Congress clearly did not intend for HUD to apply the new minimum procedures for lead-based paint hazard notification, evaluation and reduction set out in Title X to tenant-based rental assistance. However, HUD does not believe that Congress intended to abolish HUD's current procedures, which serve to protect, in a minimal way, the recipients of this type of housing assistance. Rather, Congress may have intended for the Department to effectively retain its present lead-based paint requirements for tenant-based rental assistance. In its current regulations, HUD requires tenant-based rental property occupied by families with children under six to meet the minimal standard for lead-based paint found in its Housing Quality Standards (HQS). In this proposed rule, then, HUD continues to require tenant-based rental property to meet HQS. The Department, however, modifies the lead-based paint requirements in HQS somewhat, in accordance with the general approach of Title X, to require visual evaluation, dust testing in some situations, paint repair, cleanup, a response to an elevated blood level (EBL) child and related activities in accordance with part 37. Section 1013 amends 42 U.S.C. 4822(a)(3) to modify existing requirements for the disposition (i.e. sale) of all residential property constructed before 1978 and owned by a Federal agency. Consequently, the Department includes here new subpart C of Part 36 which sets out these requirements concerning the disposition of all federally owned residential [[Page 29175]] property. Elsewhere in Part 36, the Department sets out specific requirements for the disposition of HUD-Owned Single Family and Multifamily property. Section 1013 adds 42 U.S.C. 4822(a)(3)(C), which states the following: In the absence of appropriations sufficient to cover the costs of subparagraphs (A) and (B) (which contain evaluation and abatement requirements for pre-1960 housing, and evaluation and notification requirements for housing constructed between 1960 and 1978), these requirements shall not apply to the affected agency or agencies. The Department interprets this language to state that HUD (and other Federal agencies that own residential property covered herein) need not comply with the requirements set out in Section 1013 if sufficient funds are not provided to the agency for this purpose. In the Department's view, it is consistent with the intent of Congress to nevertheless make some effort to evaluate and treat deteriorated paint in HUD-owned properties (similar to existing procedures), even if funding is not made available to the Department to carry out more extensive lead-based paint hazard evaluation and reduction. Since these properties are owned by the Department, HUD feels that it has the authority to adopt an alternative response to potential lead-based paint hazards in the absence of sufficient appropriations. Therefore, subparts F and G of part 36, for HUD-Owned Single Family Housing, and subparts J and K of part 36, for HUD-Owned and Mortgagee-in-Possession Multifamily Property, set forth alternative requirements when appropriated money is available and when appropriated money is not available. When appropriated money is available, the regulatory requirements track the language of Section 1013. When appropriated money is not available, alternative regulatory requirements are set forth. Other agencies may also wish to develop alternative requirements to those set out in part 36, subpart C, when appropriated monies are not available. B. Format Throughout this proposed rule, lead-based paint hazard notification, evaluation, and reduction requirements represent the minimum activities that are required under this proposed rule; of course, parties may wish to voluntarily undertake more extensive lead- based paint activities. It should also be noted that throughout part 36, paint repair or interim controls of deteriorated paint surfaces are required for various programs and cross references to the relevant subparts of part 37 concerning treatment are included. These subparts of part 37 each include a section describing a de minimis level of paint deterioration, consistent with the HUD Guidelines, below which no action is required. This de minimis level is defined as not more than 10 square feet of deteriorated paint on an exterior wall, not more than 2 square feet on a component with a large surface area other than an exterior wall including, but not limited to, interior walls, ceilings, floors and doors, or not more than 10 percent of the total surface area on an interior or exterior component with a small surface area including, but not limited to, window sills, baseboards and trim. To avoid requiring evaluation efforts that may have already been undertaken by property owners and to minimize costs, HUD has included exemptions for required evaluation activities if equivalent or more stringent evaluation activities have already been conducted and have indicated the absence of lead-based paint or lead-based paint hazards. The proposed rule also provides opportunities to forego evaluation activities if certain lead-based paint hazard reduction measures consistent with the requirements of parts 36 and 37 have been conducted. In addition, where paint inspection or risk assessment are required, the proposed rule provides the option to assume the presence of lead-based paint or lead-based paint hazards or both and to perform hazard reduction activities. Finally, the requirements of visual evaluation, paint repair and cleanup do not apply if a suitable paint inspection has already been completed indicating the absence of lead- based paint (i.e. lead-free). An owner or recipient of Federal assistance hoping to meet a lead- free exemption may question whether correcting for possible false (or outdated) positive findings during lead-based paint inspections is permissible. The owner or recipient always retains the option of having additional tests performed by certified paint inspectors. Nothing in either the law or the proposed regulation is intended to revoke or restrict that right. An additional test can sometimes clarify whether or not lead-based paint is present. For example, if an owner or recipient believed that a previous inspection had rendered a false positive result (all measurement techniques involve some small degree of sampling and analytical error), the owner or recipient could choose to have a certified paint inspector retest the area in question. If the additional testing by a certified paint inspector indicated that the initial positive results were false (i.e., that there was in fact no lead-based paint present), then the owner or recipient would qualify for a lead-based paint free exemption. Similarly, suppose an owner or recipient first had a test done in 1982 using an X-ray fluorescence (XRF) device that indicated the presence of lead-based paint. Because testing procedures were less reliable at that time (standard practice often failed to consider the effect of the substrate underneath the paint, or the accuracy of the measurement and instrument calibration checks were often deficient), the owner or recipient might choose to conduct a new test using the improved methodology available today. If this second test indicated that lead-based paint was not present, then the owner or recipient would qualify for a lead-based paint free exemption. As a third example, an owner or recipient who had all lead- based paint removed from a property following an earlier inspection could choose to have a new inspection or clearance examination conducted on the abated property. If the new information indicated that lead-based paint was no longer present, then the owner or recipient would qualify for a lead-based paint free exemption. In all three cases, if the second test confirmed the original findings, or if the test was not conducted by a certified paint inspector, an exemption would not be available. As stated above, the proposed rule sets forth new parts 36 and 37 that, together with part 35, subpart H, comprise all of HUD's regulatory requirements for lead-based paint in a single place. The numerous lead-based paint requirements set out in various program regulations will be deleted. Part 36 describes the lead-based paint requirements for each program covered under the Lead-Based Paint Act, grouped according to the manner in which program responsibility is divided in the Department and according to the relevant requirements. The requirements for single family and multifamily property appear separately. There are two single family property disposition subparts and two multifamily property disposition subparts--one if appropriations are sufficient and one if appropriations are not sufficient. There are also separate subparts for single family insured property and multifamily insured property, and for project- and tenant- based rental assistance programs. There is one rehabilitation subpart and one subpart for CPD non-rehabilitation programs. The requirements for public and Indian housing are located in a [[Page 29176]] single subpart. There is also a subpart that provides alternative procedures for States receiving Federal housing assistance, or operating a Federal housing assistance program. Finally, the requirements for properties owned by, or receiving project-based assistance from, a Federal agency other than HUD are set out in two subparts. The program requirements set out in part 36 specifically reference the procedural information for conducting lead-based paint hazard evaluation and reduction activities included in part 37. Part 37 distills the extensive information found in the HUD Guidelines, in subparts on paint inspection, risk assessment, interim controls, abatement, occupant protection, worksite preparation, cleanup, clearance and monitoring. As stated in the discussion of HUD's Reinvention efforts, the Department is considering a more performance- based approach to its lead-based paint hazard evaluation and reduction requirements, and may consolidate parts 36 and 37 in the final rule. The Department requests comments on the format of the proposed rule, as well as the content. C. Effective Date and Qualifications for Conducting Lead-Based Paint Hazard Evaluation and Reduction Activities The proposed effective date of these regulations is one year after the date of publication of the final rule in the Federal Register. HUD anticipates that a final lead-based paint rule will be published by September 1996. In determining an appropriate effective date, the Department considered two options: the date of publication of the final rule and 12 months after publication of the final rule. The argument in favor of an immediate effective date is that Title X (Sections 1012 and 1013) requires the evaluation and reduction of lead-based paint hazards in housing receiving Federal assistance and residential property owned by the Federal government to take effect on January 1, 1995; any further delay in implementing these requirements would pose a risk to the health of children. The argument against an immediate effective date is that program administrators at all levels of government, as well as property owners and contractors performing lead-based paint activities, would not have adequate education and training time to implement the new technical standards, requirements and procedures required under the proposed regulation. The Department is concerned that such a scenario would likely result in a delay in implementing the new lead-based paint requirements, difficulty in locating trained and certified workers, unreliable hazard evaluation results, and unsafe and ineffective hazard control activities. Further, the Department recognizes that HUD clients conducting ongoing program activities will need time to incorporate, where feasible, the new lead-based paint requirements into their programs. HUD requests program-specific comments on the ``event'' to which the effective date of the rule should be linked with regard to ongoing program activities. Specifically, should HUD programs use (1) the date of the funding agreement between the client and HUD; (2) the date of the expenditure of HUD funds; (3) the date that the contract between the project owner and the funding agency is signed; or is there another more appropriate date? An effective date of 12 months after publication of the final rule was chosen by the Department as a way to allow all parties--lead-based paint professionals, housing agencies, State and local government agencies, and private property owners--time to prepare for proper implementation of the new lead-based paint requirements. The effective date will also coincide approximately with the conclusion of the two- year period associated with EPA's training and certification requirements, as discussed below. The Department shares the concern of the public health community that further delays in implementing the requirements will place more children at risk of lead-based paint poisoning. However, it seemed impractical for HUD to establish an immediate effective date for the proposed rule, knowing that the infrastructure necessary to carry it out would not be fully in place. The effective date issue is directly related to the qualifications necessary for persons carrying out lead-based paint hazard evaluation and reduction activities. The proposed rule requires that virtually all lead-based paint hazard evaluation and abatement activities required in part 36 be conducted by individuals and firms that are certified in accordance with the new EPA requirements for lead-based paint activities, developed pursuant to Section 1021 of Title X (adding Sections 402 and 404 of the Toxic Substances Control Act (TSCA). The EPA training and certification regulations were published as a proposed rule on September 2, 1994, and are expected as of this writing to be published as a final rule in 1996. States must have EPA approved training and certification programs in place within two years of publication of the final EPA rule. The EPA regulation will greatly affect the availability of individuals and firms that are trained and certified to conduct lead-based paint activities in each State. If the certification programs of the States and EPA have not developed sufficiently by the time HUD's new lead-based paint rule takes effect, the Department will need to consider temporary qualifications for persons conducting lead-based paint hazard evaluation and reduction activities. The Department requests comments on the certification requirement as well as the effective date. It should be noted that in part 36, subpart N, public and Indian housing agencies (``HAs'') conducting dust and soil testing for public and Indian housing are not required to be certified in accordance with the new EPA requirements for lead-based paint activities. The Department recognizes that this is inconsistent with the general approach of the proposed rule. However, HAs were required to complete paint inspections by December 6, 1994 and many HAs have already taken the initiative to conduct risk assessments in housing projects. Therefore, in the Department's view, it is illogical to impose new certification requirements for evaluation activities conducted in public and Indian housing. Furthermore, the legislative history for Title X indicates that Congress did not intend for the new procedures set out under Title X to disrupt already ongoing public and Indian housing lead-based paint activities. Since the Department has not applied certification requirements to evaluation activities conducted by HAs, additional descriptive material concerning soil and dust testing has been added to subpart B of part 37. Further, HUD did not extend the certification requirement to dust testing conducted by HAs for the Section 8 tenant-based rental assistance program. However, a risk assessment, conducted in response to an identified EBL child, must be conducted by a certified risk assessor in accordance with 24 CFR part 37. HUD requests public comment on the issue of whether certification requirements for evaluation activities should be applied to HAs. VI. Definitions In order to implement Section 1012 and Section 1013 of Title X, certain terms need to be defined. To avoid redundancy, definitions used throughout both parts 36 and 37 are included in subpart A of part 36. Terms that are only used in a particular subpart are defined in that subpart. [[Page 29177]] Where possible, HUD has drawn definitions directly from Section 1004 of Title X. In cases where the statute either failed to define terms or where the definition was inadequate, the Department has drawn definitions from the HUD Guidelines, existing HUD or EPA regulations (as well as EPA proposed regulations promulgated pursuant to Title X), the National Institute of Building Sciences (``NIBS'') Lead-Based Paint Operations and Maintenance Work Practices Manual, and from definitions compiled and set forth by the American Society for Testing and Materials (ASTM) in a document entitled ``Standard Terminology Relating to Abatement of Hazards from Lead-Based Paint in Buildings and Related Structures''. HUD will accept comments on all definitions not taken directly from the statute. VII. General Requirements A. Part 36 1. Cross Cutting Issues The requirements described below apply, in varying degrees, to HUD programs, as well as to some programs of other Federal agencies, covered under Part 36. (a) Pamphlet. Section 1012 of Title X amends the Lead-Based Paint Act to add new subparagraph 42 U.S.C. 4822(a)(1)(A), which requires the provision of a lead-based paint hazard information pamphlet (``lead hazard information pamphlet'') to all purchasers and tenants of housing receiving Federal assistance. The lead hazard information pamphlet must be the one developed by EPA pursuant to Section 406 of TSCA (added pursuant to Section 1021 of Title X). The lead hazard information pamphlet mandated by Section 406 of TSCA contains certain information, such as the health risks associated with exposure to lead, the presence of lead in residential property, approved and recommended methods of evaluation and reduction of lead- based paint hazards, how to obtain a list of certified evaluation and reduction contractors, and an informational statement that State and local governments may impose additional lead-based paint requirements. Section 1018 of Title X also contains a lead hazard information pamphlet requirement. Under Section 1018, all sellers and landlords of virtually all pre-1978 target housing are required to provide purchasers and tenants with the same lead hazard information pamphlet prior to sale or lease. Since Section 1018 of Title X separately requires all new purchasers and new tenants of target housing, including federally owned residential property and housing receiving Federal assistance, to receive the lead hazard information pamphlet, the Department reads ``purchasers and tenants'' in new subparagraph 42 U.S.C. 4822(a)(1)(A) to cover ``all existing owner-occupants and tenants that were residing in a residential dwelling unit covered by this proposed rule prior to the effective date of the regulation implementing Section 1018 of Title X,'' since these owner-occupants and tenants would not have received the pamphlet upon initial occupancy. The proposed rule avoids duplicating the requirements set out in Section 1018 by not addressing situations in which the Department, another Federal agency, or a recipient or subrecipient of Federal housing assistance already has a duty as a seller or lessor to provide the pamphlet to new purchasers or tenants. That requirement will be set forth in 24 CFR Part 35, Subpart H. (b) Notice. New subparagraph 42 U.S.C. 4822(a)(1)(F) of the Lead- Based Paint Act requires the provision of notice to occupants describing the nature and scope of any risk assessment, paint inspection, or reduction activities undertaken. The Department has interpreted this new provision to require the following: (1) Within 15 calendar days of receiving a risk assessment or paint inspection report or both, a written notice must be provided to tenants containing a summary of the nature, scope and results of the evaluation and a contact for more information or access to the actual reports; and (2) within 15 calendar days of completing hazard reduction activities, a notice must be provided to tenants of the actual hazard reduction activities conducted that contains a summary of the nature, scope and results of the hazard reduction activities, a contact for more information, and information on any remaining lead-based paint on a surface-by-surface basis. This notice shall be updated, based on any reevaluation of the dwelling unit or if additional lead-based paint hazard reduction work is conducted. The notices must be posted in a centrally located easily accessible common area or distributed to each occupied dwelling unit, must be of a size and type that are easily read, must be made available in an accessible format for persons with disabilities, to the extent practicable, and if possible must be provided in the tenant's primary language. The language of 42 U.S.C. 4822(a)(1)(F) does not specifically require that separate notices be provided to tenants, initially after an evaluation has been conducted, and again after hazard reduction activities have been undertaken. However, in the Department's view, withholding information on the results of an evaluation until after hazard reduction activities have been performed and the lead-based paint hazard resolved, poses a serious risk to tenants. The sooner tenants are provided with this information, the better they can protect their children and themselves. The notification requirements of 42 U.S.C. 4822(a)(1)(F) also do not specify the manner in which the notices must be distributed. The proposed rule provides the option of ``posting the notices in a centrally located, easily accessible common area, or distributing it to each occupied dwelling unit.'' In general, the Department believes that matters of notice format and distribution are best determined by the property owner or other recipient of Federal housing assistance. The Department requests comment on the content, format and distribution of the notices. (c) Paint Repair. HUD's current lead-based paint regulations often require visual inspection and ``treatment of defective paint surfaces.'' That treatment usually consists of scraping deteriorated paint and in some cases repainting. Paint repair under this proposed rule involves similar visual evaluation and treatment for deteriorated paint surfaces (when the deteriorated paint surface exceeds a de minimis size), but additional safeguards are added. Unless a paint inspection or risk assessment has indicated the absence of lead-based paint, a deteriorated paint surface must be assumed to contain lead. Therefore, when paint repair is conducted, the proposed regulation requires various protections to ensure that the paint is repaired in a manner that does not cause exposure to lead-based paint. The requirements include: (1) The use of protective coverings on the floor or ground; (2) occupant protections that entail restricted access to a worksite until after all paint repair and cleanup have been completed; (3) use of wet methods and other work practices to control leaded dust; (4) surface preparation and cleaning before repainting; and (5) cleanup of the worksite. These additional provisions will help to ensure that lead-based paint hazards are reduced without unintended negative human health or environmental consequences. The paint repair requirements in this proposed rule often apply where residential properties receive a minimum amount of housing assistance from HUD, and the relationship between [[Page 29178]] HUD and the recipient of HUD assistance is not continuous. The subparts of part 36 concerning HUD's single family and multifamily insured programs require only paint repair, as well as the subpart concerning HUD-owned properties without sufficient appropriations to carry out the requirements of Section 1013 of Title X. Paint repair is also required by CPD non-rehabilitation programs and the Department's tenant-based rental assistance programs, though these programs have an additional requirement of dust testing for residential properties built before 1950. In addition, HUD has extended the paint repair requirements to residential properties that receive less than $5,000 in HUD funds for rehabilitation, because these rehabilitation activities are limited and the paint disturbance is minimal. Rather than requiring interim controls or abatement activities for this category of rehabilitation, the Department has chosen a ``do no harm'' policy that requires paint repair and cleanup of the surfaces to be disturbed by rehabilitation. (d) EBLs. The use of children with elevated blood lead levels (EBLs) as a trigger to initiate evaluation or reduction of lead-based paint hazards does not exist in any of the new requirements under Title X. Rather, Congress makes clear that the Department is to focus on preventing the poisoning of children, rather than reacting to children with EBLs (See Section 566(a)(1), Housing and Community Development Act of 1987 (``HCD Act of 1987'') (Pub. L. 100-242, enacted February 5, 1988); p. 243, Conference Report for the HCD Act of 1987 (Report 100- 426, November 6, 1987); and Title X, Senate Report 102-332). While the Department's primary focus in this rule is on prevention, HUD feels a special duty to children who have already been poisoned by lead-based paint. HUD cannot ignore the possible connection between a child's EBL and the condition of the dwelling unit where the child lives. Therefore, in each subpart of Part 36 in which HUD maintains a continuing relationship with the recipients of Federal housing assistance, or where an EBL child resides in residential property owned by the Federal government, additional requirements are included to evaluate and reduce lead-based paint hazards when an EBL child is identified. Often, the EBL requirements for a particular program are an acceleration of the lead-based paint hazard evaluation and reduction requirements for that program. In some instances, such as in the case of tenant-based rental assistance, the EBL response may be more stringent than the proposed requirements for that program. In response to the United States General Accounting Office report entitled ``Children in Section 8 Tenant-Based Housing are not Adequately Protected'' (GAO/RCED-94-137, dated May 13, 1994), HUD has also added language to the proposed rule requiring an HA or other individual or organization (e.g. grantee or participating jurisdiction) administering a Section 8 or CPD-funded tenant-based rental assistance program, to the extent practicable, to attempt to obtain the names and addresses of EBL children from local public health agencies on an annual basis. They would then match this information with the names and addresses of families receiving tenant-based rental assistance. The intent of this requirement is not for case-management of an EBL child, but to ensure that families with young children that receive Section 8 tenant-based rental assistance are obtaining housing free of lead-based paint hazards. At the same time, the Centers for Disease Control and Prevention (``CDC'') is urging local public health agencies to provide EBL-related information to HAs. While the Department understands the value of sharing EBL information, we would like to receive public comment concerning two issues: (1) Does this requirement impose an undue administrative burden on the individual or organization administering the tenant-based rental assistance program? (2) Does this requirement adversely impact the privacy rights of families receiving tenant-based rental assistance? (e) Other Required Practices. Depending on the type of activity conducted and the degree of Federal involvement, the parties that are required to perform lead-based paint hazard evaluation and reduction activities must also perform certain protective activities such as occupant protection, worksite preparation, cleanup, clearance, monitoring, and control of new hazards. With respect to paint repair, specific protective activities are included in subpart D of Part 37. Further, the parties that are required to perform lead-based paint hazard evaluation and reduction activities may be subject to Department of Labor worker protection requirements set out at 29 CFR 1926.62, and EPA waste disposal requirements set out at 40 CFR 260-270. These requirements are not described in Part 37. 2. Subpart A--General Requirements Subpart A sets out general requirements for all federally owned residential property and housing receiving Federal assistance. This subpart includes a provision concerning the scope of part 36, as well as general exemptions from coverage under part 36. These exemptions include (1) residential property constructed on or after January 1, 1978; (2) single room occupancy (SRO) dwelling units; (3) residential property designated exclusively for the elderly or persons with disabilities, unless a child who is less than six resides or is expected to reside (the Department interprets the phrase, ``a child who is less than six * * * is expected to reside,'' to include any pregnant woman residing in a dwelling unit constructed before 1978 that is covered under this subpart); (4) residential property undergoing emergency repairs in response to a natural disaster; and, (5) residential property required to undergo visual evaluation, paint repair and cleanup for which documentation is provided that a paint inspection has been completed in accordance with part 37 and indicates the absence of lead-based paint on all surfaces. The subpart sets out a general provision for parties required to undertake paint inspection or risk assessment, whereby they may choose to assume the presence of lead-based paint or lead-based paint hazards or both and to conduct hazard reduction activities. There is also a provision allowing for a reasonable delay for evaluation, paint repair, hazard reduction or abatement activities on exterior painted surfaces due to unsuitable weather conditions. Subpart A also includes provisions concerning the following: a prohibition against the use of paint containing more than 0.06 percent by weight of lead in federally owned residential property and housing receiving Federal assistance; prohibited methods of paint removal; compliance with Federal laws and authorities; compliance with State and local laws, ordinances, codes or regulations governing lead-based paint; a statement that Part 36 is intended to set out the Department's minimum requirements for notification, evaluation and reduction of lead-based paint hazards and that these requirements do not preclude the recipient of Federal assistance from conducting more rigorous activities; Secretarial waivers; and the consequences of noncompliance with the requirements of parts 36 and 37. Terms which are used throughout parts 36 and 37 are defined in this subpart. [[Page 29179]] 3. Subpart B--State Procedures This subpart allows States, Indian tribes and insular areas that are recipients of Federal housing assistance or that are administering a Federal housing assistance program established by the Secretary, to develop their own alternative lead-based paint procedures to implement Federal requirements for evaluating and reducing lead-based paint and lead-based paint hazards in the following programs: (1) Rehabilitation and (2) Community Planning and Development (CPD) non-rehabilitation. HUD requirements for these programs are set out in subparts L and M of part 36 and in the relevant subparts of part 37. Specifically, subpart B identifies the minimum HUD requirements for each of these programs, but permits States, Indian tribes and insular areas to determine how best to meet these requirements. For instance, Title X requires abatement of lead-based paint hazards in the course of rehabilitation projects receiving more than $25,000 per unit in Federal funds. Under subpart B, an eligible State, Indian tribe or insular area is permitted to establish its own abatement procedures, as long as the clearance standards set out in subpart B are met. This subpart is intended to provide States, Indian tribes and insular areas with latitude in developing lead-based paint hazard reduction measures that are as protective as Federal requirements, but which may be better suited to the specific economic and technological needs of that unit of government. In order to qualify under this subpart, a State shall have in place a certification program for individuals and firms engaged in lead-based paint activities which has been approved by EPA pursuant to Sections 402 and 404 of TSCA. A State shall also have in place alternative evaluation and hazard reduction procedures that have been approved by the Secretary prior to implementation of the procedures. Further HUD approval is required if the State procedures are substantially modified at any time after implementation. A unit of general local government located in a State that has HUD-approved alternative lead-based paint procedures may also adopt these procedures or choose to follow the applicable provisions of parts 36 and 37. In developing its own lead-based paint procedures, a State shall adhere to general requirements set out in subpart B concerning the lead-based paint hazard information pamphlet, notice of risk assessment, paint inspection, paint repair and hazard reduction activities, prohibited practices and occupant protection. Specific minimum requirements for each program covered under subpart B and clearance standards for dust and soil tests established by HUD are also set out. These requirements and clearance standards must be incorporated into a State's alternative procedures. In preparing this subpart, the Department received input concerning the possibility of alternative evaluation and reduction procedures for States during meetings with HUD clients (discussed in Paragraph IV C above). HUD requests additional comments concerning this subpart, from State officials in particular, and from the general public. 4. Subpart C--Disposition of Residential Property Owned by a Federal Agency other than HUD This subpart establishes minimum lead-based paint requirements for residential property built before 1978 that is owned and to be sold by a Federal agency other than HUD, and is consequently subject to the requirements of Section 1013 of Title X. The subpart basically restates the requirements set out in Section 1013, with minimal elaboration. The Department believes that the details of how another Federal agency should carry out the requirements of Section 1013 are best determined by the affected agency. At a minimum, for residential property constructed prior to 1960, the Federal agency shall conduct a paint inspection, risk assessment and abatement of all lead-based paint hazards. Section 1013 does not specifically address when the abatement of hazards must take place and, in HUD's view, abatement may be made a condition of sale with sufficient funds escrowed when a sale is to a non-occupant purchaser. For residential property constructed after 1959 and before 1978, the Federal agency shall conduct a paint inspection and risk assessment, and the results shall be provided to purchasers as specified under Section 1018 of Title X. Title X gives the Secretary authority to waive the requirements for residential property constructed after 1959 and before 1978 in which a federally or privately funded risk assessment performed by a certified risk assessor shows an absence of lead-based paint hazards, or that a paint inspection, performed by a certified paint inspector, shows an absence of lead-based paint. (Although the strict language of Section 1013 states ``federally-funded'' risk assessment or paint inspection, the Department has extended the waiver to privately funded risk assessments or paint inspections, so long as they are performed by a certified risk assessor or paint inspector.) In addition, the Secretary may waive the requirements for residential property constructed after 1959 and before 1978 if a clearance test conducted by a certified risk assessor shows an absence of lead-based paint hazards. If abatement of lead-based paint hazards is performed, additional protective measures must be taken under the general heading of ``other required practices.'' Those practices were discussed in Section VII.A.1(d) of the Preamble above, and are further described in Section VII.B. of the Preamble below. In the absence of appropriations sufficient to cover the costs of these lead-based paint requirements, the requirements shall not apply. As discussed in Section V.A. of the Preamble, the Department expects a Federal agency to determine whether to establish alternative lead-based paint requirements for its agency if sufficient funds are not appropriated to carry out the requirements of this subpart. 5. Subpart D--Project-Based Assistance Provided by a Federal Agency Other Than HUD This subpart sets out minimum requirements, consistent with Section 1012, for Federal agencies other than HUD that have housing programs and provide more than $5,000 (per project) of project-based assistance. For the reasons described in Section VII.A.4. above, the subpart basically restates the requirements set out in Section 1012. Each tenant residing in a dwelling unit prior to the effective date of the regulation implementing Section 1018 of Title X shall receive a lead hazard information pamphlet. Each owner shall provide notices to the tenants of risk assessment and hazard reduction activities conducted in the dwelling unit. Each owner shall also complete a risk assessment in accordance with a schedule determined by the Federal agency, and shall conduct hazard reduction to reduce lead-based paint hazards identified in the risk assessment. In the case of an EBL child residing in a dwelling unit, the owner shall immediately conduct risk assessment and hazard reduction in that unit. The owner shall also comply with the other required practices set forth in this subpart. It should be noted that the Department is concerned that if interim controls were required under this subpart in accordance with the minimum procedure specified in Title X, owners would not have had the option of conducting abatement [[Page 29180]] activities if they were recommended in the risk assessment report and receiving a rent adjustment if needed. As a consequence, under this subpart both interim controls and abatement are acceptable responses to lead-based paint hazards. 6. Subpart E--Single Family Insured Property This subpart sets out the requirements for the Department's single family insured property programs. Manufactured homes and property improvement loan programs under Title I of the National Housing Act are not covered under this regulation, as neither program is the subject of ``an application for mortgage insurance.'' Applications for mortgage insurance in connection with a refinancing transaction are excluded from coverage if an appraisal is not required under the applicable procedures established by HUD. For those mortgage insurance programs that are covered, the extent of Federal involvement is limited and, consequently, the requirements under Title X are also limited. For a covered refinancing transaction, each occupant residing in a dwelling unit prior to the effective date of the regulation implementing Section 1018 of Title X, shall receive the lead hazard information pamphlet. If an initial application for mortgage insurance is made, the purchaser would receive the lead hazard information pamphlet under the requirements for sale transactions in Section 1018 of Title X. For single family property that receives HUD mortgage insurance, before the mortgage is endorsed for insurance, the appraiser shall conduct a visual evaluation of painted surfaces to identify deteriorated paint. The appraiser need not be a certified paint inspector or risk assessor because the purpose of the visual evaluation is only to determine the presence of deteriorated paint and visual evaluation does not identify the content of lead in paint. Deteriorated paint surfaces must be repaired and cleanup conducted. With limited exceptions, the commitment or other approval document must contain the requirement that all deteriorated paint surfaces are to be repaired and cleanup conducted before the mortgage is endorsed for insurance. An escrow fund may be established to conduct paint repair and cleanup after endorsement of the mortgage under specific conditions. As stated above, due to the limited relationship between the purchaser and the Federal government, HUD deemed it impracticable to include requirements for an EBL child. If documentation is provided to the appraiser that a limited paint inspection of specific deteriorated paint surfaces has been completed in accordance with part 37 and indicated the absence of lead-based paint on the particular surfaces, the requirements of this subpart would not apply with respect to those surfaces. Many of the requirements in subpart E are similar to the current lead-based paint requirements for single family insurance programs, except that proper paint repair and cleanup procedures for deteriorated paint are now specified in part 37. 7. Subparts F and G--Disposition of HUD-Owned Single Family Property (With and Without Sufficient Appropriations) These subparts set out requirements for the disposition (i.e. sale) of HUD-owned single family property. The requirements of subpart F would apply in the event the Secretary determines that there are sufficient appropriations to cover the costs of evaluation and reduction of lead-based paint hazards as set out in Section 1013 of Title X. The requirements of subpart G would apply in the event the Secretary determines that there are not sufficient appropriations to cover the costs of evaluation and reduction of lead-based paint hazards as set out in Section 1013 of Title X. See the discussion in Section V A. of the Preamble above. Under subpart F, for single family property constructed prior to 1960, HUD shall conduct a paint inspection and risk assessment, and abate identified lead-based paint hazards before the closing of the sale of the property. Abatement may be made a condition of sale to a non-owner occupant purchaser, with sufficient funds escrowed. A residential property is exempt from the requirements of this subpart if extensive damage requires major rehabilitation or demolition. For residential property constructed after 1959 and before 1978, HUD shall conduct a paint inspection and risk assessment before the closing of the sale of the property. Results of the paint inspection and risk assessment would be provided to purchasers in accordance with the disclosure requirements of Section 1018. Title X gives the Secretary authority to waive the paint inspection and risk assessment requirements if a federally or privately funded risk assessment, performed by a certified risk assessor, shows an absence of lead-based paint hazards; or that a federally or privately funded paint inspection, performed by a certified paint inspector, shows an absence of lead-based paint. In addition, the Secretary may waive the requirements for residential property constructed after 1959 and before 1978 if a clearance test conducted by a certified risk assessor shows an absence of lead-based paint hazards. The Department shall also comply with the other required practices set forth in subpart F. Under subpart G, before the closing of the sale of a residential property, HUD shall conduct a visual evaluation of all paint surfaces to identify deteriorated paint. The Department shall repair deteriorated paint surfaces and perform cleanup of the work area in accordance with Part 37, before the closing of the sale of the property. If the Department retains ownership of a residential property for more than one year, monitoring must be conducted in accordance with subpart J of Part 37 and paint repair and cleanup conducted if necessary, unless a residential property is leased during this period (in which case HUD may make monitoring a condition of the lease). In the case of a sale to a non-occupant purchaser, paint repair and cleanup may be made a condition of sale, with sufficient funds escrowed. HUD may be exempt from the requirements of this subpart for a specific deteriorated paint surface if a limited paint inspection has been completed and shows an absence of lead-based paint on the specific surface. A residential property is also exempt from the requirements of this subpart if extensive damage requires major rehabilitation or demolition. In addition, the Department may be exempt from the repainting requirements described in this subpart if weather conditions make repainting infeasible or if the property is scheduled for major rehabilitation or demolition. Risk assessments are not specifically required for federally owned residential properties under Section 1013. In fact, Section 1013 contains language requiring inspections for lead-based paint and lead- based paint hazards. However, Title X itself defines ``inspection'' as an investigation for lead-based paint on a surface-by-surface basis, and defines a ``risk assessment'' as an investigation for lead-based paint hazards, which include lead in dust, paint and soil. Since Section 1013 requires actions to be taken to treat lead-based paint hazards, the Department interprets Section 1013 to also require risk assessments of federally owned residential properties in subpart F. Neither subpart F nor G requires specific action regarding an EBL child. Less than 1 percent of the single family property is occupied when HUD acquires ownership, and, in most cases, [[Page 29181]] HUD-owned single family property is vacant within three months of the transfer of ownership to HUD. Further, HUD-owned single family properties are generally sold within six months of acquisition. Because of the limited occupancy and relatively high turnover of HUD-owned single family property, the Department thought it impracticable to impose EBL requirements. Existing EBL requirements for single family property owned by the Department have proven to be impractical and difficult to implement. 8. Subpart H--Multifamily Insured Property This subpart sets out the requirements for the Department's multifamily insured property programs. As with the single family insured property programs, applications for mortgage insurance in connection with a refinancing transaction are excluded from coverage if an appraisal is not required under the applicable procedures established by HUD. Again, because the extent of Federal involvement is limited in multifamily insured property programs, the requirements under Title X are also limited. For a covered refinancing transaction, each tenant that was residing in a dwelling unit prior to the effective date of the regulation implementing Section 1018 of Title X shall receive the lead hazard information pamphlet. As with the single family insured property program, a new purchaser applying for mortgage insurance would receive the lead hazard information pamphlet under the requirements of Section 1018. Before the issuance of the firm commitment, the Department's or the sponsor's architect shall conduct a visual evaluation of painted surfaces to identify deteriorated paint. The architect need not be a certified paint inspector or risk assessor because the purpose of the visual evaluation is only to determine the presence of deteriorated paint and the visual evaluation does not identify the content of lead in paint. Deteriorated paint surfaces must be repaired and cleanup of the work area conducted. As stated above, due to the limited relationship between the purchaser and the Federal government, HUD deemed it impracticable to include requirements for an EBL child. In cases where multifamily mortgage insurance is combined with another HUD program (i.e. project-based assistance), the EBL requirements for that program would apply. If documentation is provided that a limited paint inspection of specific deteriorated paint surfaces has been completed in accordance with part 37 and indicates the absence of lead-based paint on a specific surface, the requirements of this subpart would not apply with respect to that surface. Many of the requirements in subpart H are similar to the current lead-based paint requirements for multifamily insurance programs, except that proper paint repair and cleanup procedures for deteriorated paint are now specified in part 37. 9. Subpart I--Project-Based Assistance This subpart sets out the requirements for the Department's project-based rental assistance programs. In this program area, the Department's involvement is ongoing and tied to the residential structure itself; consequently, the lead-based paint hazard evaluation and reduction requirements in Section 1012 are more expansive. Although Title X only requires the Secretary to establish lead-based paint procedures for residential property receiving more than $5,000 in project-based assistance, Subpart I includes additional minimal lead- based paint procedures (i.e. the procedures for tenant-based rental assistance) for multifamily property receiving less than $5,000 in project-based assistance from HUD. The Department also applies these minimum lead-based paint procedures to single family properties receiving Section 8 Moderate Rehabilitation or Project-Based Certificate assistance from HUD. As stated above, the Department wanted to extend some limited lead-based paint protections to properties receiving minimal project-based assistance and also wanted to relieve single family owners with limited financial resources from being required to comply with the extensive lead-based paint requirements for project-based assistance. Section 1012 of Title X amends the Lead-Based Paint Act to add subparagraph 42 U.S.C. 4822(a)(1)(B), which requires, at a minimum, risk assessments and interim controls in accordance with a schedule determined by the Secretary. Senate Report 102-332, page 117, states that under Title X, ``Risk assessments would be performed in all housing receiving project-based Federal assistance in order to determine the level of risk and notify the residents of existing hazards.'' The Department has decided that the term ``project-based'' should be given its traditional meaning--housing assistance payment programs where the funding is tied to the residential property and not to the tenant (``tenant-based'' housing assistance payments). Further, the requirement for risk assessment only makes sense when it is applied to traditionally ``project-based'' housing assistance payment programs, where HUD maintains an ongoing relationship with the owner and is able to require a phase-in of risk assessment requirements. The statute, at 42 U.S.C. 4822(a)(1)(B), sets out a schedule in which risk assessments and interim controls must be performed, i.e. pre-1960 dwelling units prior to January 1, 1996; 25 percent of 1960- 1978 dwelling units by January 1, 1998; not less than 50 percent of 1960-1978 dwelling units by January 1, 2000; and the remainder by January 1, 2002. The Department does not anticipate issuing a final lead-based paint rule in time to meet the January 1, 1996 deadline. Therefore, the Department has delayed the risk assessment schedule, but maintained the same performance intervals (based on the construction date of the residential property) as set out in the statute: residential property constructed before 1960--(proposed to be 2 years after the effective date of this rule); residential property constructed after 1959 and before 1965--by (proposed to be 4 years after the effective date of this rule); residential property constructed after 1964 and before 1971--by (proposed to be 6 years after the effective date of this rule); and residential property constructed after 1970 and before 1978--by (proposed to be 8 years after the effective date of this rule). As stated above, the Department has revised the risk assessment schedule to provide adequate time for education and training in order to implement the new technical standards, requirements and procedures set forth in this proposed rule (See Effective Date and Qualifications for Conducting Lead-Based Paint Hazard Evaluation and Reduction Activities). The proposed rule also allows the Secretary to develop an alternative schedule, if necessary. This provision was included to provide the Department with flexibility in working with HUD clients whose housing assistance payment (HAP) contracts are due to expire close to the required date for completing risk assessments. The Department invites comments on the risk assessment schedule for housing programs receiving project-based assistance. Specifically, HUD requests comments on how to address the risk assessment requirements of Title X in residential property where the HAP contracts are due to expire within the next few years. Under this subpart, each tenant residing in a dwelling unit prior to the effective date of the regulation [[Page 29182]] implementing Section 1018 of Title X shall receive a lead hazard information pamphlet. Each owner shall provide notices of evaluation, paint repair and hazard reduction activities to tenants. Each owner shall complete a risk assessment prior to execution of the HAP contract. If a risk assessment report identifies lead-based paint hazards, the owner is required to develop a hazard reduction plan (``reduction'' is defined as measures to reduce or eliminate lead-based paint hazards including interim controls or abatement) proposing hazard reduction activities consistent with the recommendations of the risk assessment report, and a schedule for completing hazard reduction activities. The hazard reduction plan will supplement the owner's application for rent increase and shall be submitted to HUD and a copy must be provided to any Contract Administrator or HA in conjunction with the next rent increase request, but no later than 120 calendar days after completion of the risk assessment. HUD will review each plan submitted by an owner and may recommend alternative reduction activities if the activities proposed are too costly. Before approving a hazard reduction plan or recommending alternative activities, the HUD official reviewing the plan shall also conduct a limited environmental review in accordance with 24 CFR part 50. A copy of the Department's determinations must be transmitted to any Contract Administrator or HA. If no rent increase is necessary to implement the plan, the owner shall certify to HUD that the contents of the plan are consistent with Part 37; in this instance, the owner does not have to submit the actual plan to HUD. However, certification must be submitted to the Department and a copy must be provided to any Contract Administrator or HA no later than 120 calendar days after completion of the risk assessment. It should be noted that the Department is concerned that if interim controls are required under this subpart in accordance with the minimum procedure specified in Title X, owners will not have the option of conducting abatement activities if they were recommended in the risk assessment report and receiving a rent adjustment if needed. As a consequence, under this subpart, both interim controls and abatement are acceptable responses to lead-based paint hazards. In the event risk assessment and hazard reduction are not completed prior to execution of the HAP contract, a risk assessment must be completed and a hazard reduction plan submitted during the housing assistance payment period. In the latter case, each risk assessment must be completed according to a schedule which places a priority on older dwelling units that are more likely to have lead-based paint. HUD welcomes comments concerning the timing of the implementation of hazard reduction for lead-based paint hazards identified in the risk assessment. In the case of an EBL residing in a dwelling unit, the owner shall immediately conduct risk assessment and hazard reduction in the dwelling unit, rather than adhere to the established schedule. The owner shall also report the name and address of any known EBL child to the appropriate State or local health agency. When conducting hazard reduction, the owner shall also comply with the other required practices set forth in subpart I. 10. Subparts J and K--Disposition of HUD-Owned and Mortgagee-in- Possession Multifamily Property (With and Without Sufficient Appropriations) These subparts set out requirements for the disposition (i.e. sale) of HUD-owned multifamily property. The requirements of subpart J would apply in the event the Secretary determines that there are sufficient appropriations to cover the costs of evaluation and reduction of lead- based paint hazards as set out in Section 1013 of Title X. The requirements of subpart K would apply in the event the Secretary determines that there are not sufficient appropriations to cover the costs of evaluation and reduction of lead-based paint hazards as set out in Section 1013 of Title X. See the discussion in Section V.A. of the Preamble above. Under subpart J, for multifamily property constructed prior to 1960, HUD shall conduct a paint inspection and risk assessment before publicly advertising the property for sale. Abatement of all identified lead-based paint hazards must be completed no later than conveyance of the title or before a foreclosure sale required by the Secretary. If the disposition program provides for repairs to be performed by the purchaser, abatement may be included in the required repairs. A residential property is exempt from the requirements of this subpart if extensive damage requires major rehabilitation or demolition. For residential property constructed after 1959 and before 1978, HUD shall conduct a paint inspection and risk assessment before publicly advertising the property for sale. Results of the paint inspection and risk assessment would be provided to purchasers in accordance with the disclosure requirements of Section 1018. Title X gives the Secretary authority to waive the paint inspection and risk assessment requirements if a federally or privately funded risk assessment, performed by a certified risk assessor, shows an absence of lead-based paint hazards; or that a federally or privately funded paint inspection, performed by a certified paint inspector, shows an absence of lead-based paint. In addition, the Secretary may waive the requirements for residential property constructed after 1959 and before 1978 if a clearance test conducted by a certified risk assessor shows an absence of lead-based paint hazards. The Department shall also comply with the other required practices set forth in subpart J. Under subpart K, before publicly advertising a residential property for sale, HUD shall conduct a visual evaluation of all paint surfaces to identify deteriorated paint. The Department shall repair deteriorated paint surfaces and perform cleanup of the work area in accordance with Part 37, no later than conveyance of the title by HUD or before a foreclosure sale caused by the Secretary. If the disposition program provides for repairs to be performed by the purchaser, paint repair and cleanup may be included in the required repairs. If the Department retains ownership of a residential property for more than one year, monitoring must be conducted in accordance with subpart J of Part 37 and paint repair and cleanup conducted if necessary. HUD may be exempt from the requirements to repair a specific deteriorated paint surface if a limited paint inspection has been completed and shows an absence of lead-based paint on the specific surface. A residential property is exempt from the requirements of this subpart if extensive damage requires major rehabilitation or demolition. Again, risk assessments are not specifically required for federally owned residential properties under Section 1013. In fact, Section 1013 contains language requiring inspections for lead-based paint and lead- based paint hazards. However, Title X itself defines ``inspection'' as an investigation for lead-based paint on a surface-by-surface basis, and defines a ``risk assessment'' as an investigation for lead-based paint hazards, which include lead in dust, paint and soil. Since Section 1013 requires actions to be taken to treat lead-based paint hazards, the Department interprets Section 1013 to also require risk assessments of federally owned residential properties in subpart J. Unlike the requirements for single family property in subparts F and G, [[Page 29183]] subparts J and K require specific actions regarding an EBL child. As stated above, with respect to single family property, less than 1 percent of the single family property is occupied when HUD acquires ownership and all HUD-owned single family property must be vacant within three months of the transfer of ownership to HUD. This is not the case for multifamily property. Therefore, if a child with an EBL resides in a HUD-owned multifamily dwelling unit, the Department shall immediately conduct risk assessment and interim controls in that unit. The Department shall also report the presence of an EBL child, and any risk assessment or interim controls conducted, to the appropriate State or local health agency. 11. Subpart L--Rehabilitation This subpart sets out the requirements for the Department's programs which provide assistance for rehabilitation. The majority of this assistance is provided through the Department's CPD programs. Other rehabilitation assistance is provided under the Flexible Subsidy- Capital Improvement Loan Program (CILP) for multifamily property. This subpart does not include other HUD programs that may be tied to rehabilitation activities, but do not provide direct funding of such activities. These include the Department's insurance programs and the Section 8 Moderate Rehabilitation program, which are covered in other subparts of the proposed rule. Public housing modernization programs are not included under this subpart. Since rehabilitation work typically disturbs a painted surface and, therefore, the result of Federal involvement may be to create or exacerbate a lead-based paint hazard condition, the requirements under Title X for rehabilitation or renovation assistance are the most stringent. Title X requirements for rehabilitation vary based on whether federal rehabilitation assistance is above or below $25,000. The subpart discusses the manner in which rehabilitation costs are calculated for different programs. For purposes of determining whether the rehabilitation cost is under or over $25,000, the Department will look at the hard costs of rehabilitation and not at soft costs, such as administrative fees. Lead-based paint hazard evaluation and cleanup activities will not be considered part of the rehabilitation costs. The Department recognizes that it may be difficult in practice to distinguish between rehabilitation and lead-based paint hazard evaluation and reduction activities and welcomes comments on this issue. There are three general exemptions in this subpart. Rehabilitation that does not disturb a painted surface is exempt from the requirements of this subpart for the reasons discussed below. Also, if a grantee, participating jurisdiction or CILP recipient certifies to the Department that a dwelling unit undergoing federally funded rehabilitation has been previously abated of all lead-based paint, the requirements of this subpart do not apply. A dwelling unit may also be exempt from the requirement to conduct a limited paint inspection if the grantee, participating jurisdiction or CILP recipient certifies that a paint inspection has been completed and indicates the absence of lead-based paint. Although many of the requirements under this subpart refer to the grantee or participating jurisdiction, as is the case with many CPD programs, the grantee or participating jurisdiction may require virtually all of these functions to be performed by a subrecipient or other entity administering the financial assistance. A subrecipient can be a public or private nonprofit agency, authority or organization, or a for-profit entity, selected by the grantee or participating jurisdiction to administer all or a portion of the financial assistance. An owner or developer receiving Federal rehabilitation assistance for a residential property is not considered a subrecipient for the purposes of carrying out that project. All tenants or owner-occupants shall be provided with the lead hazard information pamphlet by the grantee, participating jurisdiction or CILP recipient. In all cases where evaluation, paint repair and hazard reduction activities are undertaken, each grantee, participating jurisdiction or CILP recipient shall post or distribute a notice to tenants of the results of the evaluation. The grantee, participating jurisdiction or CILP recipient shall also post or distribute a notice of the results of the hazard reduction activities. For housing receiving an average of less than $5,000 per unit in Federal funds for rehabilitation, HUD is requiring the grantee, participating jurisdiction or CILP recipient to conduct a visual evaluation of all painted surfaces to identify deteriorated paint. Before occupancy of a vacant dwelling unit or, where a dwelling unit is occupied, before rehabilitation work begins, the subrecipient or other entity (defined to include an owner) shall repair deteriorated paint surfaces and perform cleanup in accordance with subpart D of part 37. HUD has created this special category for housing receiving less than $5,000 in Federal funds for rehabilitation, for which the evaluation and hazard reduction requirements are more lenient, because the rehabilitation activity is limited and the paint disturbance minimal. Rather than exclude this category from coverage under the proposed rule, the Department chose a ``do no harm'' policy when minimally disturbing a painted surface. This category of housing receiving an average of less than $5,000 per unit in Federal funds for rehabilitation, however, should not be confused with the category of housing established in the statute receiving less than $5,000 in project-based assistance. For housing receiving an average of $25,000 or less per unit (but greater than $5,000) in Federal funds for rehabilitation, the grantee, participating jurisdiction or CILP recipient is required to conduct a paint inspection of surfaces to be disturbed in the course of the rehabilitation. A paint inspection must be completed before occupancy of a vacant dwelling unit or, where a dwelling unit is occupied, before rehabilitation work begins, in accordance with subpart C of part 37. In addition, each grantee, participating jurisdiction or CILP recipient shall complete a risk assessment in a sample of the federally assisted dwelling units (including common areas and exteriors) in accordance with subpart B of part 37. A risk assessment must be completed before occupancy of a vacant dwelling unit or, where a dwelling unit is occupied, before rehabilitation work begins, and may be done in conjunction with the paint inspection. Hazard reduction activities are required to address any lead-based paint hazards found. For housing receiving an average of more than $25,000 per unit in Federal funds for rehabilitation, the grantee, participating jurisdiction or CILP recipient is required to conduct a paint inspection of surfaces to be disturbed in the course of the rehabilitation. A paint inspection must be completed before occupancy of a vacant dwelling unit or, where a dwelling unit is occupied, before rehabilitation work begins, in accordance with subpart C of part 37. In addition, each grantee, participating jurisdiction or CILP recipient shall also complete a risk assessment in a sample of the federally assisted dwelling units (including common areas and exteriors) in accordance with subpart B of part 37. A risk assessment must be completed before occupancy of a vacant dwelling unit or, where a dwelling unit is occupied, before rehabilitation work begins, and may be done in conjunction with the paint inspection. Abatement of [[Page 29184]] lead-based paint hazards identified on a surface to be disturbed by rehabilitation is required. Each grantee, participating jurisdiction or CILP recipient shall conduct hazard reduction activities if lead-based paint hazards are identified in the risk assessment on a surface not to be disturbed by rehabilitation. Because the relationship between the Department and the grantee, participating jurisdiction or CILP recipient is not ongoing, HUD deemed it impracticable to include requirements for an EBL child. The grantee, participating jurisdiction or CILP recipient, however, shall comply with the other required practices set forth in subpart L. The Department includes risk assessments as a requirement for rehabilitation programs although risk assessments are not clearly required for rehabilitation activities under Title X. The statute does, however, in new subparagraphs (a)(1)(D) and (E), require reduction or abatement of lead-based paint hazards. Grantees, participating jurisdictions or CILP recipients receiving rehabilitation funds, therefore, are required to perform a risk assessment to determine where lead-based paint hazards exist, so they can then reduce or abate all such hazards. New subparagraph (a)(1)(C) requires inspection for the presence of lead-based paint prior to federally funded renovation or rehabilitation likely to disturb painted surfaces. HUD has interpreted this language to require inspection of the painted surfaces to be disturbed in the course of federally funded rehabilitation (the term ``rehabilitation'' includes ``renovation''). HUD's interpretation does not require inspection of all painted surfaces in the dwelling unit to be rehabilitated. HUD has attempted to focus paint inspection and abatement efforts on those surfaces where the greatest hazard may be created. This focus seems to be consistent with legislative intent. The Senate Report, cited supra, at page 117, specifically states that ``prior to beginning work likely to disturb painted surfaces, owners would be required to have an paint inspection performed to determine the lead content of the paint.'' After the inspection of the painted surfaces to be disturbed is performed, for rehabilitation receiving an average of $25,000 or less (but more than $5,000) per unit, the grantee, participating jurisdiction or CILP recipient is responsible for reduction of any lead-based paint hazards identified in the risk assessment in the entire dwelling unit. HUD has extended the hazard reduction requirement to the entire dwelling unit to correspond with the areas covered in the risk assessment. For rehabilitation receiving an average of $25,000 or more per unit, grantee, participant jurisdiction or CILP recipient is responsible for abating lead-based paint hazards on surfaces to be disturbed by the rehabilitation, and reducing lead-based paint hazards identified in the risk assessment in the rest of the dwelling unit. 12. Subpart M--Community Planning and Development (CPD) Non- Rehabilitation Programs This subpart sets out the requirements for certain CPD programs which provide Federal funding for acquisition, leasing, tenant-based rental assistance, operating or support services. With the exception of tenant-based rental assistance, since the Federal funding for these programs is often provided by the HUD grantees or participating jurisdictions to the property owner or developer in a single instance and the relationship is not ongoing, the requirements under Title X are limited. For the CPD tenant-based rental assistance program, the requirements of subpart O of Part 36 apply, except for the provision of the lead hazard information pamphlet. Instead, the lead hazard information pamphlet must be distributed in accordance with the requirements set out in subpart M (Sec. 36.256). Although all the requirements under this subpart refer to the grantee or participating jurisdiction, the grantee or participating jurisdiction may require virtually all of these functions to be performed by the subrecipient administering the financial assistance. A subrecipient can be a public or private nonprofit agency, authority or organization, or a for-profit entity, selected by the grantee or participating jurisdiction to administer all or a portion of the financial assistance. An owner or developer of an assisted residential property is not considered a subrecipient for the purposes of carrying out that project. All tenants or owner-occupants shall be provided with the lead hazard information pamphlet by the grantee or participating jurisdiction. Before providing financial assistance to an owner, each grantee or participating jurisdiction shall conduct a visual evaluation of all painted surfaces to identify deteriorated paint. For housing constructed before 1950, each grantee or participating jurisdiction shall also conduct dust sampling to determine the presence of lead- contaminated dust. Before occupancy of a vacant dwelling unit or, where a dwelling unit is occupied, immediately after receipt of financial assistance, the grantee or participating jurisdiction shall repair any deteriorated paint surfaces and perform cleanup of the worksite in accordance with part 37. For housing constructed before 1950, if dust sampling identifies lead-contaminated dust, the grantee or participating jurisdiction shall conduct cleanup of the horizontal surfaces in the room, dwelling unit or common areas where lead- contaminated dust is located. The grantee or participating jurisdiction is exempt from the requirement to repair a specific deteriorated paint surface if a limited paint inspection has been completed in accordance with part 37 and indicates an absence of lead-based paint on the specific surface. As stated above, because the relationship between the HUD grantee or participating jurisdiction and the property owner or developer is not ongoing, HUD deemed it impracticable to include requirements for an EBL child, except in the case of the CPD tenant-based rental assistance programs. 13. Subpart N--Public and Indian Housing Programs Section 1012 of Title X does not specifically add new requirements to public or Indian housing. The Senate Report, cited infra, at page 118, states that Congress did not intend the changes to the Lead-Based Paint Act introduced by Title X to pose a barrier to ongoing efforts by PIH to conduct risk assessments, paint inspections and abatement activities. According to the Report, ``the changes made by Title X to the public housing provision of the LPPPA are intended merely to conform the terminology of Title X's definition of terms.'' Nevertheless, in order to consolidate all of the lead-based paint requirements for HUD in a single place, the Department is including subpart N for public and Indian housing in this rulemaking. This subpart implements the requirements set out in 42 U.S.C. 4822(d)(1) and (3) prior to Title X; where necessary, however, the Department has modified these requirements in order to be consistent with the intent of Title X. Such modifications are noted below in the subpart discussion. If a tenant has resided in a public or Indian housing unit prior to the effective date of the regulation implementing Section 1018, the HA shall provide the tenant with the new lead hazard information pamphlet. In all cases where lead-based paint or lead-based paint hazard evaluation or reduction activities are undertaken, the HA shall post or distribute a notice to tenants of the results of the evaluation. The HA shall also post or distribute a [[Page 29185]] notice of the results of the hazard reduction or abatement activities. The notification requirement is intended to respond, in part, to the recommendations made in the 1993 General Accounting Office (GAO) report entitled, Lead-Based Paint Poisoning: Children in Public Housing Are Not Adequately Protected (GAO/RCED-93-138). The Lead-Based Paint Act requires HAs to complete paint inspections by December 6, 1994. The proposed rule adds a supplemental requirement to the regulations for HAs that have not completed paint inspections: any paint inspection not completed by the effective date of this rule must then be immediately conducted in accordance with part 37. If a paint inspection was completed prior to the effective date of this regulation, the Department strongly encourages HAs to conduct quality control activities prescribed by PIH to ensure that paint inspections were conducted properly. PIH set out these quality control procedures in Notice PIH 95-8, issued February 9, 1995. If a paint inspection has indicated the presence of lead-based paint, each HA shall complete a visual evaluation, dust and soil test, in accordance with part 37, in the housing project before January 1, 1999. If a paint inspection has indicated that no lead-based paint is present, the HA shall complete a soil test (with limited exceptions) in the housing project. A housing project shall be exempt from these requirements if the HA can certify that it has been abated of all lead- based paint and lead-based paint hazards; or that a paint inspection, and a risk assessment conducted in accordance with part 37, was completed prior to January 1, 1999 and identifies the absence of any lead-based paint and lead-based paint hazards in the housing project. As discussed in Section V.C. of the Preamble above, HAs conducting dust and soil testing for public and Indian housing are not required by this proposed rule to be certified in accordance with the new EPA requirements for lead-based paint activities. However, HAs were required to complete paint inspections by December 6, 1994 and many HAs have already taken the initiative to conduct risk assessments in housing projects; consequently, it seems burdensome to impose new certification requirements for dust and soil testing conducted in public and Indian housing. Since the Department has not applied certification requirements to dust and soil testing conducted by HAs, the individual or firm conducting these activities on behalf of the HA shall be trained in lead hazard evaluation and additional descriptive material concerning soil and dust testing has been added to subpart B of part 37. As stated in Section II.A. of the Preamble above, most of HUD's lead-based paint requirements will focus on reducing lead-based paint hazards in residential property, pursuant to Title X. The notable exception to this policy continues to be the required abatement of all lead-based paint and lead-based paint hazards in public and Indian housing, as set forth in 42 U.S.C. 4822(d) (1) and (3). Each HA shall abate all identified lead-based paint and lead-based paint hazards during the course of physical improvements conducted under modernization, or as soon as practical after completing the evaluation requirements set out in this subpart. Each HA shall also conduct interim controls to treat lead-based paint hazards identified in dust and soil testing prior to abatement of these hazards; initial interim controls must be conducted within 30 calendar days of completing the evaluation requirements set out in this subpart. Whenever hazard reduction is conducted, the HA shall comply with the other required practices set forth in Sec. 36.286 of this subpart. A public or Indian housing project shall be exempt from this requirement if the HA can provide documentation to the Department that interim controls are already being conducted in accordance with part 37. To be consistent with the Title X definition of a lead-based paint hazard, the Department thought it necessary to include the requirement for dust and soil sampling. The Department recognizes that many HAs have taken the initiative to conduct risk assessments in housing projects. The Department does not intend to penalize those HAs at the forefront of lead-based paint hazard control, and provides certain evaluation exemptions to address this situation. Where a lead-based paint hazard is identified and is not being addressed prior to a HA's planned abatement schedule, the proposed rule requires the HA to implement interim controls. If an EBL child is identified in a public or Indian housing project, the HA shall complete a risk assessment of the dwelling unit in accordance with part 37 within 15 calendar days of notification of the EBL condition, and shall conduct hazard reduction of identified lead-based paint hazards in accordance with part 37 within 15 calendar days of receipt of the risk assessment report. The HA may relocate the family to a post-1978 or previously evaluated dwelling unit that was found to be free of lead-based paint hazards. Because many HAs have completed paint inspection and abatement in their housing projects, the Department has determined that relocation to a dwelling unit free of lead-based paint hazards is a reasonable option to conducting risk assessment and interim controls. In addition, the HA shall report the name and address of the EBL child to the State or local health agency. The requirements for conducting risk assessment and hazard reduction activities when an EBL child is identified and reporting EBL information to the State or local health agency, and the requirement to notify tenants whenever lead-based paint or a lead-based paint hazard is identified, are intended to address, in part, GAO's concerns about protecting children in public housing from lead-based paint poisoning (See Lead-Based Paint Poisoning: Children in Public Housing Are Not Adequately Protected, (GAO/RCED-93-138), and Secretary Cisneros' written reply to Senator John Glenn, past-Chairman, Committee on Government Affairs, United States Senate, December 20, 1993). 14. Subpart O--Tenant-Based Rental Assistance This subpart sets out new lead-based paint requirements for the Department's tenant-based rental assistance programs. The Title X Task Force on Lead-Based Paint Hazard Reduction and Financing issued recommendations on reducing lead-based paint hazards in the Section 8 housing stock. The Task Force's June 1995 report, discussed in Section IV.B. of the Preamble above, provided the Department with a set of national ``benchmark standards'' to reduce lead-based paint hazards in private rental property. To the extent practicable, the proposed rule incorporates these standards into the lead-based paint requirements for tenant-based rental assistance programs. As stated in Section V.A., the Department believes that Congress did not intend for HUD to apply the new minimum procedures for lead- based paint hazard notification, evaluation and reduction set out in Title X to tenant-based rental assistance. However, HUD does not believe that Congress intended to abolish HUD's current procedures, which serve to protect, in a minimal way, the recipients of this type of housing assistance. In this proposed rule, HUD continues to require tenant-based rental property to meet the minimal standards for lead- based paint found in the Department's HQS. The proposed rule slightly modifies these [[Page 29186]] standards to incorporate the spirit of Title X and its new lead-based paint terminology, as well as incorporating some of the recommendations of the Title X Task Force. The requirements set forth in subpart O apply only to dwelling units in which a family with a child under age six resides. The scope of this subpart is more narrow than the scope of other program subparts, and deviates from Title X's directive to address lead-based paint hazards in all federally owned residential property or housing receiving Federal assistance (with limited exceptions for the elderly, disabled and single room occupancy dwelling units). The Department thought it reasonable to continue to restrict the lead-based paint requirements for the tenant-based rental assistance programs to dwelling units in which a family with a child under age six resides because of the program's ability to identify any changes in the composition of an assisted family. In addition, the HAs are able to monitor the property owner's compliance with HQS through initial and periodic dwelling unit inspections. These two safeguards will help to ensure that an HA will know whether a child under age 6 resides in a dwelling unit. It should be noted that an owner that refuses to rent a dwelling unit to a family with a child und [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-14101. Public record. Not legal advice.