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

SUMMARY: The purpose of this rule is to ensure that housing receiving

Federal assistance and federally owned housing that is to be sold does

not pose lead-based paint hazards to young children. It implements

sections 1012 and 1013 of the Residential Lead-Based Paint Hazard

Reduction Act of 1992, which is Title X of the Housing and Community

Development Act of 1992. The requirements of this rule are based on the

practical experience of cities, states and others who have been

controlling lead-based paint hazards in low-income privately-owned

housing and public housing through HUD assistance. It also reflects the

results of new scientific and technological research and innovation on

the sources, effects, costs, and methods of evaluating and controlling

lead hazards. With today's action, HUD's lead-based paint requirements

for all Federal programs are now consolidated in one part of title 24

of the Code of Federal Regulations.

DATES: Effective Dates: Section 35.140 is effective on November 15,

1999. All other provisions of the rule are effective on September 15,

2000.

FOR FURTHER INFORMATION CONTACT: For questions on this rule, call (202)

755-1785, ext. 104 (this is not a toll-free number) or e-mail your

inquiry to [email protected]. For lead-based paint program

information, contact Steve Weitz, Office of Lead Hazard Control,

Department of Housing and Urban Development, 451 7th Street, SW, Room

B-133, Washington, DC 20410-0500. For legal questions, contact John B.

Shumway, Office of General Counsel, Room 9262, Department of Housing

and Urban Development. Hearing and speech-impaired persons may access

the above telephone number via TTY by calling the toll-free Federal

Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

A. Lead Poisoning

B. Legislative and Regulatory History

C. HUD Reinvention

D. Public Input on Rulemaking

1. HUD Guidelines

2. Title X Task Force

3. Meetings with HUD Clients

4. Comments on Proposed Rule

E. Related Actions by EPA and HUD

1. Disclosure Rule

2. EPA Certification Requirements and Work Practices Standards

3. EPA Standards for Hazardous Levels of Lead in Paint, Dust and

Soil

4. EPA Laboratory Accreditation Program

5. Possible EPA Regulations on Renovation and Remodeling

II. Summary of Public Comments on Proposed Rule

A. Diversity of Comments

B. Commenters' Broad Concerns

1. ``Missed Opportunities''

2. Cost of Compliance

3. Legality of Portions of the Rule

4. Perceived HUD Overreaching

III. Response to Public Comments and Final Rule Provisions

A. Scope and Applicability

1. Housing Receiving Less Than $5,000 in Project-Based Rental

Assistance

2. Tenant-Based Rental Assistance

3. Federally Owned Housing and the Availability of Appropriations

4. Soil and Dust Standards

a. Legal Issues

b. Coordination With EPA Rulemaking

5. Exemptions

a. Housing for the Elderly

b. Absence of Lead-Based Paint or Prior Hazard Reduction

c. Housing To Be Demolished

d. Nonresidential Property

e. Rehabilitation Disturbing Little or No Painted Surface

f. Emergency Actions and Natural Disasters

g. Law Enforcement Seized Property

h. Emergency Rental and Foreclosure Prevention Assistance

i. Adverse Weather

j. Historic Properties

k. Insufficient Appropriations

6. Deference to Other Agencies

7. Changes and Deletions to Current HUD Regulations

8. Indian Housing Programs

9. Applicability of Subparts to Programs and Dwelling Units

B. Structure of the Rule

1. Organization

2. Simplicity and Overall Strategy

3. Prescriptiveness

C. Effective Date

D. Other General Issues

1. Policy on Abatement

2. Cost of Compliance

3. Use of Task Force Recommendations

4. De Minimis Exceptions

5. Distinction Between HUD Programs and Those of Other Federal

Agencies

6. Response to Children With Lead Poisoning

7. Fair Housing Requirements

8. Qualification Requirements

9. Paint Stabilization vs. Paint Repair

E. Subparts

1. Subpart A--Disclosure of Known Lead-Based Paint Hazards Upon Sale

or Lease of Residential Property

2. Subpart B--General Lead-Based Paint Requirements and Definitions

for All Programs

a. Definitions

b. Exemptions

c. Options

d. Notice of Evaluation and Hazard Reduction Activities

e. Lead Hazard Information Pamphlet

f. Use of Paint Containing Lead

g. Prohibited Methods of Paint Removal

h. Compliance With Other, State, Tribal, and Local Laws

i. Minimum Requirements

j. Waivers

k. Prior Evaluation or Hazard Reduction

l. Enforcement

m. Records

3. Subpart C--Disposition of Residential Property Owned by a Federal

Agency Other Than HUD

4. Subpart D--Project-Based Assistance Provided by a Federal Agency

Other Than HUD

5. Subpart E--Reserved

6. Subpart F--HUD-Owned Single Family Property

7. Subpart G--Multifamily Mortgage Insurance

8. Subpart H--Project-Based Rental Assistance

9. Subpart I--HUD-Owned and Mortgagee-in-Possession Multifamily

Property

10. Subpart J--Rehabilitation

11. Subpart K--Acquisition, Leasing, Support Services, or Operation

12. Subpart L--Public Housing Programs

13. Subpart M--Tenant-Based Rental Assistance

14. Subparts N-Q--Reserved

15. Subpart R--Methods and Standards for Lead-Based Paint Hazard

Evaluation and Reduction Activities

a. Standards

b. Adequacy of Dust-Lead Standards

c. Summary Notice Formats

d. Interim Controls

e. Standard Treatments

f. Clearance

g. Occupant Protection and Worksite Preparation

h. Safe Work Practices

i. Ongoing Lead-Based Paint Maintenance and Reevaluation

IV. Deletions of Current Regulations

V. Additional Public Comment

VI. Regulatory Assessment

A. Economic Analysis

1. Summary and Methodology of Cost-Benefit Analysis

2. Regulatory Costs

3. Monetized Benefits

4. Monetized Net Benefits

5. Data Sources

[[Page 50141]]

6. Public Comments

B. Paperwork Reporting Act Statement

C. Regulatory Flexibility Act--Final Regulatory Flexibility Analysis

1. Need For and Objectives of the Final Rule

2. Public Comments

a. Information Not Adequate

b. Capital vs. Operating Costs

c. Costs Will Be Higher Than HUD Assumes

d. There Will Be a Significant Impact

e. Owners Whose Entire Portfolio Is Affected May Be Impacted

Especially Hard

3. Impact on Small Entities

a. Number of Small Entities Affected by the Rule

b. Economic Impact

4. Final Rule Requirements

a. Lead Hazard Information Pamphlet

b. Resident Notice

c. Evaluation

d. Hazard Reduction Activities

e. Ongoing Lead-Based Paint Maintenance and Reevaluation

f. Response To a Child With an Elevated Blood Lead Level

g. Record Keeping

5. Description of Alternatives and Minimization of Economic Impact

a. Effective Date

b. Stringency of Requirements in Relation to Amount of Federal

Assistance and Nature of Program

c. De Minimis Area of Deteriorated Paint

d. Qualifications

e. Options to Provide Greater Flexibility

f. Avoidance of Duplication

VII. Findings and Certifications

A. Unfunded Mandates Reform Act

B. Environmental Impact

C. Executive Order 12866, Regulatory Planning and Review

D. Executive Order 12612, Federalism

E. Executive Order 13045, Protection of Children From Environmental

Health Risks and Safety Risks

F. Congressional Review of Major Final Rules

VIII. References

IX. List of Subjects

I. Background

A. Lead Poisoning

Childhood lead poisoning causes reduced intelligence, low attention

span, reading and learning disabilities, and has been linked to

juvenile delinquency, behavioral problems, and many other adverse

health effects. Over the past 20 years, the removal of lead from

gasoline, food canning and other sources has been successful in

reducing population blood lead levels by over 80 percent. Nearly 1

million children, however, still have excessive levels of lead in their

blood, making lead poisoning a major childhood environmental disease

(See CDC 1997a). Lead-based paint in housing is the major remaining

source of exposure and is responsible for most cases of childhood lead

poisoning today.

HUD estimates that over 60 million occupied homes, or approximately

80 percent of all homes built before 1980, have some lead-based paint.

Many of those 60 million homes have only small amounts of such paint,

however; generally, the older the home, the greater the amount of lead-

based paint. The use of lead in paint was highest in housing built

before 1960. It was completely banned for residential use in 1978 by

the Consumer Product Safety Commission.

Higher childhood blood lead levels are associated with lower

household income, residence in large urban areas, non-Hispanic African

American race, and living in older homes. Recent data from the period

1991-1994 indicate that over 16 percent of young children of less than

6 years of age from low income families had blood levels above the

level of concern set by the Centers for Disease Control and Prevention

(CDC), compared with only one percent for young children from high

income families. Over 8 percent of all young children living in housing

built before 1946 had blood lead levels over the CDC level of concern

compared to only 1.6 percent for those living in housing built after

1973. Over 11 percent of non-Hispanic African American children were

above the CDC level of concern compared to 2.3 percent for non-Hispanic

white children. Twenty-two percent of non-Hispanic African American

children living in pre-1946 housing were over the CDC level of concern.

Childhood lead poisoning is ``the most common environmental disease

of young children,'' (CDC 1990) eclipsing all other environmental

health hazards found in the residential environment (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 6. 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. These effects have been identified in many

carefully controlled research studies (National Academy of Sciences

1993; HUD 1997). The vast majority of childhood lead-poisoning cases,

however, go undiagnosed and untreated, since most poisoned children

have no obvious symptoms.

The Residential Lead-Based Paint Hazard Reduction Act of 1992 (Pub.

L. 101-550; 42 U.S.C. 4851 et seq.), which hereafter is referred to as

``Title X'' because it is Title X of the Housing and Community

Development Act of 1992, 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 of lead

per square centimeter (mg/cm\2\), 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 chewable surfaces, friction surfaces, or impact surfaces

that would result in adverse human health effects.'' Thus, under this

definition, intact lead-based paint on most surfaces is not considered

a ``hazard,'' although the condition of the paint should be monitored

and maintained to ensure that it does not become deteriorated.

Title X defines two methods of ``evaluating'' lead-based paint

hazards or lead-based paint. One method, ``risk assessment,'' includes

dust wipe sampling and other environmental sampling to identify lead-

based paint hazards. The other, ``inspection'' (or ``lead-based paint

inspection''), determines the presence only of lead-based paint.

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 reduction'': 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 evaluation and hazard reduction are carried out safely and

effectively, Title X authorizes 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 at the time of sale, were written pursuant to the passage of

the Lead-Based Paint Poisoning Prevention Act of 1971, as amended prior

to 1992 (42 U.S.C. 4821 et seq.). This legislation required the

Secretary to ``establish procedures to eliminate as far as practicable

the hazards of lead-based paint poisoning

[[Page 50142]]

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 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 of the Code of Federal Regulations

was promulgated setting forth general procedures for the inspection and

treatment of defective paint surfaces in HUD-associated housing. The

regulation at 24 CFR 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, and important changes were made in 1995 to the Housing

Quality Standards (HQS) that apply to Section 8 tenant-based rental

assistance and certain other HUD programs.

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

Poisoning Prevention 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 control of those

hazards. This final 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 exposure to occupants and to the environment.

C. HUD Reinvention

The Department has launched a major restructuring to meet the

changing housing and development needs of communities across the

country. The restructuring includes program consolidation,

organizational changes within the Department, and relocation of some

cross-cutting functions outside of Washington, D.C. HUD's reinvention

efforts are taking place in the context of a broader, government-wide

reinvention process, the National Performance Review, initiated by

President Clinton and Vice-President Gore. The goal of the reinvention

is to give State, tribal and local decisionmakers maximum flexibility

to tailor Federal resources in response to local circumstances, needs

and priorities.

In order to keep pace with the changes HUD is undertaking, the

Department's program regulations must also change. Although this 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 the scientific understanding of how childhood lead poisoning

occurs, lead-based paint technology and in HUD service delivery.

The rule consolidates numerous lead-based paint regulations found

throughout HUD's program regulations into part 35 of title 24 of the

Code of Federal Regulations. This eliminates redundant lead-based paint

regulations and achieves consistency among the lead-based paint

requirements for different HUD programs. Before this rule, many HUD

clients received funding from several HUD programs with separate and

sometimes inconsistent sets of program regulations.

This rule groups HUD programs by the type of assistance provided to

make it easier to understand and implement. For instance, a client

receiving HUD funds for rehabilitation will find only one

rehabilitation subpart. In addition, grouping HUD programs by type of

assistance allows greater flexibility for local governments and

recipients of HUD funds.

Finally, the 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.

D. Public Input on Rulemaking

Consistent with Executive Order 12866, Regulatory Planning and

Review, and with Executive Order 13045 on Protection of Children From

Environmental Health Risks and Safety Risks, HUD has increased public

participation in the regulatory development process, with attention to

the special needs of children. Because of the magnitude of the changes

required in HUD's lead-based paint regulations 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 (Task Force), and three

major meetings of HUD clients to seek input on the implementation of

Title X. In addition to these three methods of public involvement,

there was, of course, the opportunity for public comment on the

proposed rule.

1. 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 evaluation and reduction methods

described in subpart R, and are intended to help property owners,

government agencies and private contractors sharply reduce children's

exposure to lead-based paint hazards, without adding unnecessarily to

the cost of housing.

2. Title X Task Force. The Task Force on Lead-Based Paint Hazard

Reduction and Financing (Task Force) was mandated by section 1015 of

Title X. The Task Force submitted its report with recommendations,

Putting the Pieces Together: Controlling Lead Hazards in the Nation's

Housing, to then-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

[[Page 50143]]

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 evaluation and control, financing, and liability

and insurance for rental property owners and hazard control

contractors. Methods found in this rule for ongoing lead-based paint

maintenance and the option for standard treatments are drawn from the

Task Force recommendations. Further discussion of ways the Department

used the Task Force recommendations in developing this rule is provided

below under ``Other General Issues.''

3. Meetings with HUD Clients. Prior to the development of the

proposed rule, 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 evaluation and

hazard reduction activities, and responding to children with elevated

blood-lead levels. Additional written comments were accepted from

participants after the meetings.

4. Comments on Proposed Rule. Under the authority of Title X, HUD

published a proposed rule in the Federal Register of June 7, 1996 (61

FR 29170). The proposed rule set forth new requirements for lead-based

paint hazard notification, evaluation, and reduction for federally

owned residential property and housing receiving Federal assistance.

Comments on the proposed rule were requested on or before September 5,

1996.

Most of the 93 comments were from persons representing

organizations that would be directly affected by the rule. More than a

third of the comments (34) came from agencies of State or local

government: Community development agencies, public housing authorities,

planners, mayors, health departments and other organizations directly

or indirectly involved with federally assisted programs involving

housing. Groups representing the housing and community development

industry, or segments of it, accounted for an additional nine comments.

Fourteen Federal agencies submitted comments on the rule, including

11 agencies affected by it as potential regulated entities, and three

others with their own regulatory role in some aspect of health and

safety regulations associated with lead poisoning. Four comments were

received from hospitals, physicians or health agencies other than those

included in the count of State or local agencies, above. Four lead

poisoning prevention advocacy groups submitted comments, along with

three more broadly based environmental groups and five law firms or

legal aid organizations.

Housing developers, or representatives of developers, accounted for

five comments. Eight others were received from persons identifying

themselves as consultants or experts on some aspect of the rule, or

individuals who did not explain the basis of their interest in the

rule. In addition, two comments were received from standards-setting

entities, and one each from a bank, a secondary mortgage market

organization, a coalition of tenant action groups, a child welfare

group, and an advocacy group representing industries that manufacture

or use lead.

Comments are summarized below in Section II of this preamble and

described in more detail in Section III of this preamble.

E. Related Actions by EPA and HUD

Title X requires EPA and HUD to take other very important actions

that are complementary to and in some cases binding on this final rule.

Five such actions are: (1) The HUD-EPA regulation on notification and

disclosure during real estate transactions; (2) the EPA standards for

certification of firms and individuals performing lead-based paint

activities, and associated work practices standards; (3) EPA standards

for determining hazardous levels of lead in paint, dust and soil; (4)

the EPA program for the accreditation of laboratories for analysis of

lead in paint, dust and soil; and (5) EPA requirements applying to

renovation and remodeling activities.

1. Disclosure Rule. Section 1018 of Title X (42 U.S.C. 4852d)

directs EPA and HUD to issue joint regulations requiring disclosure of

known lead-based paint or lead-based paint hazards by persons selling

or leasing most housing built before 1978. Under that authority, the

two agencies published a final rule on March 6, 1996, which became

effective on September 6, 1996 for owners of more than four dwelling

units and on December 6, 1996 for owners of four or fewer dwelling

units. The rule requires that, before completing the transaction,

sellers and lessors of applicable housing must: (1) Provide purchasers

and lessees (tenants) with the lead hazard information pamphlet

approved by EPA; (2) disclose all known information about the presence

of lead-based paint or lead-based paint hazards; (3) provide purchasers

and lessees with any available records or reports pertaining to the

presence of lead-based paint or lead-based paint hazards; (4) include,

as an attachment to the contract or lease, certain disclosure and

acknowledgement language and a warning statement about the dangers of

lead-based paint; and (5) include certain disclosure and acknowledgment

language in the contract or lease. In addition, sellers must allow

purchasers a ten-day opportunity to inspect the dwelling for lead-based

paint or lead-based paint hazards. Purchasers and sellers are free to

negotiate another mutually-agreeable time period and all other aspects

of the inspection or risk assessment. Agents must ensure compliance

with these requirements. Section 1018 does not require either the buyer

or the seller to conduct an inspection, nor does it require either the

buyer or the seller to take action to reduce any lead-based paint or

lead-based paint hazards. Also, with lease agreements, neither the

landlord nor the tenant is required by section 1018 to conduct any type

of inspection or hazard reduction.

Section 1012 of Title X (42 U.S.C. 4822) directs HUD to require

that tenants and purchasers of ``target housing'' receiving Federal

assistance be provided the same EPA-approved pamphlet that must be used

in compliance with the section 1018 notification and disclosure

regulation. (``Target housing'' is a statutorily defined term in Title

X that means housing constructed before 1978, except housing for the

elderly and persons with disabilities unless a child of less than 6

years of age resides or is expected to reside in the housing, and

except any zero-bedroom dwelling.) As described below, HUD has avoided

duplication of pamphlet dissemination requirements if the pamphlet has

already been provided in compliance with the disclosure rule.

2. EPA Certification Requirements and Work Practices Standards.

Title IV of the Toxic Substances Control Act (TSCA, 15 U.S.C. 2681-

2692), as

[[Page 50144]]

amended by Title X, section 402(a) (15 U.S.C. 2682(a)) requires EPA to

establish a regulatory framework governing lead-based paint activities

that will ensure that individuals engaged in risk assessments,

inspections and abatement are properly trained, that contractors are

certified (licensed), and that training programs are accredited. TSCA

section 404 (15 U.S.C. 2684) mandates a process under which EPA will

approve State programs for training and certification of individuals

and firms under section 402. In States lacking their own programs, EPA

must establish, administer and enforce Federal programs. EPA published

a final rule on August 29, 1996 (40 CFR part 745, subparts L and Q, 61

FR 45777-45830) implementing sections 402 and 404 as they pertain to

target housing and ``child-occupied facilities'' (generally, certain

facilities regularly visited by children under 6 years). The

regulations contain the following requirements: Training and

certification to ensure the proficiency of individuals who offer to

conduct lead-based paint inspections, risk assessments or abatement

services; accreditation requirements to ensure that training programs

provide quality instruction; work practice standards to ensure that

lead-based paint activities are conducted safely, reliably and

effectively; and procedures for States and Tribes to apply to EPA for

authorization to administer these elements. It is expected that many

States and Tribes will have EPA-authorized certification programs in

place prior to the effective date for the 402/404 rule, which is August

29, 1999. Regardless of the status of EPA authorizations, however,

after that time, all lead-based paint inspections, risk assessments and

abatements must be conducted by individuals and contractors certified

in accordance with the EPA rule and the work must be in accordance with

the work practice standards contained in that rule.

HUD requires that lead-based paint inspections, risk assessments

and abatements done in compliance with its final rule on lead-based

paint activities in federally owned and assisted housing be conducted

in accordance with the EPA rule implementing TSCA sections 402 and 404,

i.e., that individuals and firms be certified and the work be done in

accordance with the work practices standards. It should be noted that

the EPA regulation is not applicable to interim controls. It has been

necessary, therefore, for HUD to include basic standards for such

procedures in this rule.

3. EPA Standards for Hazardous Levels of Lead in Paint, Dust and

Soil. TSCA section 403 (15 U.S.C. 2683) requires EPA to issue

regulations identifying, for the purposes of Title X, levels of lead in

paint, dust and soil that are considered hazardous. EPA published a

proposed rule on June 3, 1998. When promulgated and effective, the

final rule implementing section 403 will contain standards that affect

the risk assessments required in this rule. In the meantime, the

interim levels of lead in paint, dust and soil set forth in this rule

issued by HUD shall be followed in housing covered by the rule. When

the TSCA 403 rule is effective, HUD will issue any technical amendments

that are needed to make clear what standards are applicable to this

rule at that time.

4. EPA Laboratory Accreditation Program. Under TSCA section 405(b)

(15 U.S.C. 2685(b)), EPA has established the National Lead Laboratory

Accreditation Program (NLLAP). NLLAP recognizes laboratories which have

demonstrated the ability to accurately analyze lead in paint, dust, and

soil samples. To be NLLAP recognized, laboratories must successfully

participate in the Environmental Lead Proficiency Analytical Testing

(ELPAT) program and undergo a systems audit. EPA has recognized the

American Association for Laboratory Accreditation (A2LA) and the

American Industrial Hygiene Association (AIHA) as NLLAP accrediting

organizations. The National Lead Information Center Clearinghouse (1-

800-424-LEAD) provides the public with a continually updated list of

NLLAP recognized laboratories. In this rule on lead-based paint

requirements in housing receiving Federal assistance and federally

owned housing, HUD is requiring the use of NLLAP recognized

laboratories for laboratory-based analysis of lead in paint, dust and

soil samples.

5. Possible EPA Regulations Pertaining to Renovation and

Remodeling. TSCA section 402(c) (15 U.S.C. 2682(c)) requires EPA to

study the extent to which various types of renovation activities create

a lead-based paint exposure hazard for workers or occupants where the

work is being conducted. The same section directs EPA to revise the

regulations implementing section 402(a) to apply to renovation and

remodeling activities or to determine that such regulations are not

required. EPA has not yet made the determination as to whether

regulatory revision is necessary. If EPA does decide to issue such

regulations, it is possible that they would apply to interim controls,

which are a type of hazard reduction activity commonly required in this

HUD rule but not currently regulated by EPA. Other types of work may

also be affected. Until EPA promulgates and makes effective a new

regulation under TSCA section 402(c), the requirements in this rule

issued by HUD shall be followed in housing covered by the rule.

II. Summary of Public Comments on Proposed Rule

A. Diversity of Comments

With only a few exceptions, commenters on the proposed rule agreed

that lead-based paint hazards are a serious health problem deserving to

be addressed. There was, however, an extraordinary diversity of views

regarding how best to control lead-based paint and its associated

risks. Additionally, commenters varied widely on the question of what

relative priority lead-based paint control efforts should enjoy, given

the shortage of resources for the provision of housing services

generally, and the costs associated with lead hazard control measures.

Commenters also perceived the proposed rule in different ways. Some

considered it biased in favor of lead-based paint abatement as opposed

to less expensive interim control procedures. Several argued that in

recent years interim controls have become accepted as a wiser response

to lead hazards than more elaborate abatement processes. Other

commenters, however, warned against what they saw as undue readiness in

the proposed rule to undertake limited measures to control hazards in

circumstances where, these commenters believed, such measures would be

inadequate and would afford only temporary solutions of unknown

duration.

Spokespersons for State and local funded agencies, despite

providing many comments on ways to make the rule more effective, were

concerned that the cost of compliance with the rule would severely

affect their housing programs.

Most, although not all, of the commenters representing the health

industry or environmental concerns pleaded for a stronger rule, for

more rapid effectiveness, and for a more strenuous program of hazard

control than the proposed rule required.

Regulated Federal agencies, like their State and local

counterparts, worried about costs and often advocated wider discretion.

Many State and Federal commenters advocated more deference on HUD's

part to hazard control programs, present or future, that have been or

will be developed elsewhere.

Commenters from varying backgrounds suggested that HUD's rule

[[Page 50145]]

was likely to become the nationwide ``standard'' for compliance, i.e.,

that courts (through tort litigation) and lending institutions (through

underwriting standards) eventually would establish a standard of care

applicable to private housing suppliers that was closely patterned

after the standards set out in this rule. Most often, this observation

was accompanied by expressions of concern that the proposed rule was

not adequate to provide the appropriate standard of care for the

nation's housing stock.

B. Commenters' Broad Concerns

Following is a brief description of the most common concerns

expressed by the commenters. The Department's response to these

concerns is described and explained in Section IV of this preamble

below.

1. ``Missed Opportunities''. Some argued that the proposed rule was

misdirected, set the wrong priorities, spent limited resources less

wisely than they could be spent, or failed to take important additional

considerations into account. Most typical are comments suggesting that

the rule:

(1) Should stress abatement more (or less);

(2) Is inadequately focused on controlling lead in units currently

occupied by small children;

(3) Pays insufficient attention to soil-related hazards;

(4) Pays too little deference to EPA and/or private-sector

standards-setters;

(5) Stresses liability risk-management over health-based hazard

control measures; or

(6) Otherwise misses an opportunity to apply the most effective

possible rule to an acknowledged problem.

2. Cost of Compliance. A very large number of commenters expressed

concerns about costs. Cost-related comments took many forms, but the

most frequently raised assertions were variations on the following:

(1) The cost-benefit analysis in the Economic Analysis is

inaccurate and grossly underestimates the impact the rule will have on

the ability of federally funded entities to carry out their programs.

(2) Because of high costs, the regulation will divert resources

that could be better used to meet other critical housing needs.

(3) Costs will be so extreme that many housing programs currently

in existence will be forced to close down or drastically curtail their

productivity.

(4) The rule will cause existing housing to deteriorate as it

becomes too expensive to rehabilitate, or will distort local selection

processes by steering them away from older dwellings most in need of

rehabilitation.

(5) Landlords in HUD's tenant-based rental assistance program will

not accept the additional financial burden of participating in the

program.

3. Legality of Portions of the Rule. Two of the issues presented

raised challenges to the legitimacy of portions of the rule, asserting

that:

(1) Lead hazard controls in the tenant-based subsidy programs and

controls on properties receiving less than $5,000 in project-based

assistance are beyond the scope of the statute.

(2) The rule's soil-testing and soil-abatement/control provisions

are outside the scope of HUD's authority, to the extent they fail to

differentiate the sources of lead in dust.

4. Perceived HUD Overreaching. Beyond the aforementioned legal

challenges, some commenters thought that the rule exceeded proper

bounds. They asserted that:

(1) The rule is an ``unfunded mandate,'' in that it would require

expensive undertakings by those regulated, without the offer of a new

source of financial assistance.

(2) The rule, by imposing new risk assessment requirements and/or

new obligations to control hazards, would endanger existing contracts.

(3) The underlying statute makes no distinction between HUD-

assisted and other housing receiving Federal assistance, while the rule

provides for this dichotomy without providing any justification.

(4) The rule fails to provide real support to local hazard control

efforts, instead imposing requirements that fail to recognize important

community concerns.

III. Response to Public Comments and Final Rule Provisions

A. Scope and Applicability

This rule implements the requirements of the Lead-Based Paint

Poisoning Prevention Act (LPPPA), as amended by section 1012 and

section 1013 of Title X.

Throughout this rule, lead-based paint hazard notification,

evaluation, and reduction requirements represent the minimum activities

required. Parties may voluntarily undertake more extensive lead-based

paint activities if appropriate or permitted under the specific housing

program with which the dwelling unit or residential property is

associated.

If the requirements of this rule for a dwelling unit or residential

property differ from those of the State, tribal or local government,

the more protective requirement applies.

Section 302 of the LPPPA requires HUD ``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 or otherwise receives more than $5,000 in project-based

assistance under a Federal housing program.'' In addition, the LPPPA

requires HUD to establish procedures for the inspection and reduction

of lead-based paint hazards in Federally owned housing at disposition.

Accordingly, this final rule covers all target housing that: (1) HUD is

associated with; (2) receives more than $5,000 in project-based

assistance under a program of an agency other than HUD; and (3) is

being disposed of by the Federal government.

Since 1975, when it first proposed regulations implementing section

302, HUD has taken a broad interpretation of the phrase ``covered by an

application for mortgage insurance or housing assistance payments under

a program administered by the Secretary.'' The scope of HUD's lead-

based paint regulations has always included all HUD-associated housing,

and this final rule continues that policy. The phrase, ``or otherwise

receives more than $5,000 in project-based assistance under a Federal

housing program,'' was added to section 302 by Title X in 1992. HUD's

interpretation of that phrase is explained below.

1. Housing Receiving Less Than $5,000 in Project-Based Rental

Assistance. Section 1012(a) amends the first sentence of the Lead-Based

Paint Poisoning Prevention 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.''

One commenter asserted that HUD is ``clearly outside of its

statutory authority'' in imposing requirements on multifamily

properties receiving less than $5,000 in project-based assistance.

Quoting the 1992 amendments, the

[[Page 50146]]

commenter declared that despite HUD's imposing only minimal procedures

on these under-$5,000 properties, the rule would result in additional

costs and regulatory burdens on property owners that the Congress

``never intended to regulate.''

HUD disagrees. The statute does not prohibit the Department from

establishing lead-based paint hazard reduction requirements for housing

receiving less than $5,000 in project-based assistance under a program

administered by the Secretary of HUD. The legislative history makes

this clear. The Senate committee report accompanying the bill states,

``Title X would expand the coverage of the LPPPA to include pre-1978

housing suitable for occupancy by families * * * which is covered by an

application for mortgage insurance or housing assistance payments under

a HUD program or receives more than $5,000 in housing assistance

through another federal program'' (emphasis added, Senate Report 102-

332, page 117).

Although the statute gives HUD authority to impose the same

requirements on HUD assisted housing receiving less than $5,000 as on

that receiving more than $5,000, the Department recognizes that the

Congress intended that the stringency of the requirements would be

related generally to the amount of financial assistance from the

Government. HUD is not requiring, therefore, housing receiving

multifamily project-based rental assistance of $5,000 or less per unit

per year to comply with the statutorily specified requirements for

multifamily housing receiving project-based rental assistance of more

than $5,000 per unit per year. Instead, the rule requires such housing

to comply with the less stringent procedures established for tenant-

based rental assistance.

2. Tenant-Based Rental Assistance. Some commenters thought that the

Congress never intended for the rule to impose duties on landlords in

the tenant-based rental assistance programs. This group argued that

there exists a ``statutory, program-wide exemption for housing

receiving tenant-based Section 8 assistance.''

The statute is silent on whether the new minimum procedures for

lead-based paint hazard notification, evaluation and reduction apply to

tenant-based rental assistance. Congress did not amend the first

sentence of the Lead-Based Paint Poisoning Prevention 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 Poisoning Prevention 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

(Senate Report 102-332, page 117).

Clearly, Congress did not intend for HUD to apply the new minimum

procedures set out in section 1012(a) of Title X to tenant-based rental

assistance. HUD does not believe, however, that Congress intended to

abolish HUD's current procedures, which serve to protect, in a minimal

way, the children in families receiving this type of housing

assistance. Rather, HUD infers that Congress intended for the

Department to effectively retain its present lead-based paint

requirements for tenant-based rental assistance. In its current

regulations, HUD requires units with tenant-based rental assistance

occupied by families with children under 6 to meet the minimal standard

for lead-based paint found in its Housing Quality Standards (HQS) (see

24 CFR 982.401). In this rule, then, HUD continues to require tenant-

based rental property to meet HQS. To streamline requirements, HUD has

modified the lead-based paint requirements in the current HQS slightly,

in order to be consistent with recent scientific information on how to

protect children who are exposed to lead-based paint hazards. The

requirements in this rule for tenant-based rental assistance continue

to apply only to units in which children of less than 6 years of age

reside. HUD does not believe Congress intended that Federal funds be

used to subsidize housing that can poison children.

3. Federally Owned Housing and the Availability of Appropriations.

Section 1013 of Title X amends the Lead-Based Paint Poisoning

Prevention Act at section 302 to modify existing requirements for the

sale (disposition) of all residential property constructed before 1978

and owned by a Federal agency. Section 302(a)(3)(C) (42 U.S.C.

4822(a)(3)(C)) states that:

``To the extent that 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) increase the cost to the Government of

outstanding direct loan obligations or loan guarantee commitments,

such activities shall be treated as modifications under section

504(e) of the Federal Credit Reform Act of 1990 and shall be subject

to the availability of appropriations. To the extent that paragraphs

(A) and (B) impose additional costs to the Resolution Trust

Corporation and the Federal Deposit Insurance Corporation, its

requirements shall be carried out only if appropriations are

provided in advance in an appropriations Act. In the absence of

appropriations sufficient to cover the costs of subparagraphs (A)

and (B), these requirements shall not apply to the affected agency

or agencies.''

In the proposed rule, the Department interpreted this language to

mean that HUD (and other Federal agencies that own residential

property) need not comply with the requirements set out in section

302(a)(3) if sufficient funds are not appropriated to the agency for

this purpose. The Department then proposed in the absence of sufficient

appropriations to include requirements to identify and treat

deteriorated paint in HUD-owned properties (similar to current

procedures), even if funding is not made available to the Department to

carry out more extensive lead-based paint evaluation and reduction.

Commenters expressed strong objections to basing the rule's

requirements on the adequacy of appropriations. Several commenters

questioned whether a determination that appropriations were

``inadequate'' would or could ever be made. There was also sentiment

against using such a two-pronged system for determining regulatory

responsibility at all: ``Letting our standards be set by appropriation

levels is dreadful public policy when the health of children [is] at

stake.''

A commenter urged HUD to retain high standards in the regulations

and ``let the legislative process deal with the fiscal responsibility

[for] this community health issue.'' If more costly requirements are

optional, money will not be appropriated, predicted another commenter.

Others agreed, saying that since adequate (separate) appropriations are

not at all likely to be forthcoming for each program, contemplating

them confuses ``an already complex regulation.''

State and local funded agencies and others expressed their

resentment concerning the ``adequate appropriations'' approach taken in

the subparts affecting HUD and other Federal agency responsibilities in

the proposed rule: ``HUD has two standards, depending on whether there

is a Federal appropriation. We find this interesting as HUD has refused

to seek an

[[Page 50147]]

appropriation since the legislation was passed in 1992. Instead,

subpart G (HUD without appropriations) will be used.''

Two commenters posed the question, ``may CDBG and HOME recipients

ignore their regulations if there is not additional or sufficient

funding to properly do the work?''

Another commenter roundly condemned the appropriations-based

dichotomy as ``seriously misguided'':

`` * * * There will never be explicit `sufficient'

appropriations, and the Secretary is unlikely ever to make an

explicit pronouncement that appropriations are `insufficient.' HUD

should be adopting a single set of requirements that stipulate

minimum levels of hazard controls as part of the price of doing

business, not as a matter of fiscal convenience.''

An environmental health advocacy group discussed the statutory

exception that is provided for the disposition of certain federally

owned housing--where inspection and risk assessment is called for

(under section 302(a)(3)) except when compliance would increase the

cost to the Government of outstanding direct loan obligations or loan

guarantee commitments (or would impose additional costs on RTC or

FDIC)--and there are no appropriations to fund those increased costs.

The described exception, the commenter maintained, was the only

such exception/exemption in the statute:

`` * * * Absolutely no evidence exists to support the contention

that Congress implied or otherwise intended that HUD should be able

to grant federal agencies broad discretion to opt out of lead hazard

evaluation and control requirements. Such an interpretation would

allow federal agencies such as the General Services Administration

and the Department of Defense to simply dispose of their properties

without paying heed to their condition or habitability * * *.''

The group urged that, in its final property disposition

regulations, HUD clearly limit waiver availability only to those

agencies that qualify, based on the cited statutory exemptions. The

commenter also urged that HUD revise the regulation to describe

``minimum steps'' that even agencies entitled to the waiver must

undertake. A ``sweeping exemption'' is clearly unacceptable, the group

declared, and HUD ``must not condone such an irresponsible policy and

must instead set some floor of minimum requirements with which all

federal agencies must comply, regardless of appropriations.''

HUD acknowledges the validity of many of these comments. In the

final rule, the Department includes single subparts for HUD-owned

single family property and HUD-owned multifamily property, rather than

providing separate subparts for when HUD has sufficient appropriations

and when HUD does not have sufficient appropriations. An additional

subpart is included for residential property owned by Federal agencies

other than HUD; the requirements in this subpart are identical to those

in Title X. Each affected agency must decide whether the requirements

of Title X apply to it; HUD feels that it is inappropriate for the

Department to decide this issue for other agencies.

HUD maintains, however, that the language of section 302(a)(3)(C)

makes the lead-based paint requirements for HUD-owned residential

property conditional on the sufficiency of appropriated funds to be

used to conduct inspections and abate lead-based paint hazards in HUD-

owned residential property. HUD has never received such an

appropriation for these purposes and it did not receive such a line

item in the most recent appropriations act. Therefore, in the

Department's view, ``appropriations'' are not presently sufficient to

conduct the lead-based paint activities required under section

302(a)(3)(A) and (B) and HUD is not required to implement these

procedures. If sufficient appropriations become available at a later

time, this final rule may have to be amended.

It should be noted that HUD interprets the first sentence of

section 302(a)(3)(C) to apply only to HUD programs where the cost of

conducting lead-based paint evaluation or abatement activities under

section 302(a)(3)(A) and (B) increase HUD's outstanding direct loan

obligations or loan guarantee commitments. Since appropriations are not

sufficient for the Department to conduct inspections and abatement of

lead-based paint hazards in accordance with section 302(a)(3)(A) and

(B), a determination of the effect of such activities on HUD's direct

loan obligations or loan guarantee commitments is unnecessary.

Although HUD has made the determination for purposes of section

302(a)(3) that it does not have ``sufficient appropriations'' and

therefore, the Department is not required to implement the procedures

set out in section 302(a)(3) for its HUD-owned properties, the

Department nevertheless has included lead-based paint procedures in

this final rule which the Department can afford to implement and which,

in HUD's view, are fully protective. While Congress under Title X did

not require the Department to carry out the requirements in section

302(a)(3)(A) and (B) in the absence of sufficient appropriations,

Congress was silent concerning what activities the Department should

carry out to reduce lead-based paint hazards in HUD-held properties in

the absence of appropriations. This created a ``gap'' for HUD's

interpretation. Under Chevron U.S.A., Inc. v. National Resources

Defense Council, 467 U.S. 837 (1984), where a statute is silent or

ambiguous on a specific issue, the Department's interpretation of the

statute will be upheld if it is based on a permissible or reasonable

construction of the statute. The Department believes that Congress did

not intend for HUD to ignore lead-based paint in its properties, even

in the absence of sufficient appropriations. As a consequence, HUD has

developed procedures for HUD-owned properties, as set forth in subparts

F and I, which it believes are reasonable.

4. Soil and Dust Standards. a. Legal Issues. A legal question

raised by commenters had to do with the Department's authority to

regulate in the area of dust and soil. Two basic questions were raised:

authority to regulate in the asserted absence of a nexus with lead-

based paint, and authority to regulate in the absence of EPA

regulations defining hazardous levels of lead in dust and soil under

section 403 of the Toxic Substances Control Act.

One commenter claimed that HUD is exceeding its authority and has

moved ``arbitrarily and capriciously'' by setting interim controls and

abatement levels for lead in soil and dust without reference to the

risk posed by the type of lead contained in soil or dust, or to the

bioavailability of the lead. Because HUD's action is in advance of

EPA's statutorily mandated determinations of soil cleanup levels, HUD

is overreaching, in the commenter's opinion, because the Congress

intended that EPA's regulatory action--identifying what are hazardous

levels of lead in dust and soil--was to be the ``first step'' in

rulemaking on that subject matter. According to the commenter, the

Congress gave HUD and EPA authority to implement interim controls and

abatement with respect to hazards from lead-based paint, including the

dust from lead-based paint and soil contaminated by lead-based paint.

Thus, HUD set ad hoc standards for lead dust and soil in the absence of

any EPA study results and without any nexus to lead-based paint.

Further, the commenter stated that HUD was attempting to

``decouple'' dust and soil testing and abatement from any necessary

relation to lead-based paint itself. The ``unstated premise'' of HUD's

rule would be that all lead in dust is

[[Page 50148]]

assumed to come from paint, although this is not the case. HUD's

approach would unfairly burden property owners with the costs of

cleaning up soil and dust which may have become contaminated from

``sources not under the property owner's control.'' This regulatory

requirement, the commenter asserted, would raise the constitutional

questions of a ``taking without just compensation and deprivation of

property without due process of law under the Fifth Amendment * * *''

The commenter concluded that HUD should not ``decouple'' lead found

in dust and soil from the source of that lead, and should reconsider

its imposition of a single dust-lead standard unrelated to the source

of the lead or its bioavailability. Where there is a source of dust

related to lead paint, HUD's standards may be workable, the commenter

acknowledged, although waiting for EPA's upcoming standards under

section 403 of the 1992 Act ``would have been more consistent with

Congress' intent.'' HUD's proposed standards, however, would be

``unfair'' to the extent there are other sources of lead involved,

because the Department assertedly lacks authority to regulate lead that

is from non-paint sources, and because the regulations would bear ``no

relationship to cause or risk.''

HUD and EPA, after careful consideration, do not agree with the

commenter's argument. EPA, which has the relevant regulatory authority

under TSCA section 403, has concluded that the language of Title X

supports an interpretation that dust and soil lead are covered

regardless of the source of the lead. Definitions in Title X do not

limit the source of lead in soil or dust to lead from lead-based paint.

The definitions of ``lead-contaminated dust'' and ``lead-contaminated

soil'' do not specify that the source of lead in the dust or soil must

be lead-based paint. In fact, the definition of ``lead-based paint

hazard'' specifies lead-contaminated dust and soil as sources of lead

contamination separate from and not explicitly linked to lead-

contaminated paint.

Furthermore, as a practical matter, it is not possible to determine

through routine chemical analysis the source of the lead in the dust

and soil at any given site, not to mention every site of pre-1978

housing in the nation. Also, it is well known that the scientific

literature has determined that lead in dust is an important source of

childhood lead exposure and that dust lead is well correlated with

paint lead (Lanphear, 1996). It is unlikely, therefore, that the

Congress meant to curtail the reduction of lead in dust at each

individual property covered by this regulation until it is established

that paint is the source of the lead in dust at the site.

HUD acknowledges, however, that owners cannot be expected to have

protected their properties from dust-lead deriving from such sources as

gasoline combustion, nearby bridge repainting, or nearby industrial

activity. It is reasonable that this final rule should give the highest

priority to the reduction of lead in old residential paint that may

cause lead exposure in children. As explained below in Section

III.A.5.b of this preamble, HUD has exempted from the requirements of

this final rule residential properties that are found not to contain

lead-based paint or that have had all lead-based paint removed. (This

exemption is consistent with a similar exemption in the real estate

notification and disclosure rule that was issued jointly by HUD and EPA

on March 6, 1996.) Thus, in this final rule, dust-lead hazards and

soil-lead hazards are regulated only in properties in which lead-based

paint is known or presumed to be present.

b. Coordination With EPA Rulemaking. With regard to coordination

with EPA rulemaking on hazardous levels of lead in dust and soil, HUD

agrees that the standards set forth in final regulations promulgated

and made effective by EPA pursuant to TSCA section 403 will be relevant

to this rule. The final rule states that the section 403 standards

shall be referenced when such standards are promulgated and effective.

There may be a period of time, however, between the effective date of

this final rule and the 403 regulations. Therefore, the Department is

including in this final rule interim standards for levels of lead in

dust and soil that are based on a recently-completed, peer-reviewed,

pooled analysis of virtually all available epidemiological studies that

directly measure the relationship between lead in children's blood and

lead in dust and soil (Lanphear et al. 1998). This ensures that HUD's

interim standards are scientifically valid. The interim standards

promulgated in this rule are reasonably consistent with the standards

recently proposed by EPA. For further discussion of the interim

standards, see Sections III.E.15.a and b of this preamble, below.

The Department does not agree with the comment (cited above in

Section III.A.4.a of this preamble) that it should delay all regulatory

action pertaining to lead in dust and soil until final 403 regulations

are promulgated. HUD has previously established standards for dust lead

and soil lead to ensure that hazard controls are properly targeted and

are effective in the housing it assists or owns. Such standards were

published in Lead-Based Paint: Interim Guidelines for Hazard

Identification and Abatement in Public and Indian Housing, September

1990 (Interim Guidelines); and again in Guidelines for the Evaluation

and Control of Lead-Based Paint Hazards in Housing, June 1995 (HUD

Guidelines). These standards have already been widely used in HUD

programs. The scientific literature has confirmed that lead in dust and

soil are important pathways to childhood lead exposure, as discussed

below in Section III.E.15.b of this preamble.

When EPA regulations implementing TSCA section 403 are final and

effective, they will apply to this HUD rule and will supersede most of

the HUD interim standards for dust and soil. If the final section 403

rule does not establish a standard for an activity or situation that is

covered by the HUD interim standards, there may be a question as to

whether that aspect of the interim standards is retained. HUD expects

that, after the section 403 rule is published, the Department will

publish a technical amendment to this rule or engage in additional

rulemaking to make clear what the applicable standards are.

5. Exemptions. a. Housing for the Elderly. This rule applies most

broadly to ``target housing,'' which 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 in the unit) or any 0-bedroom dwelling

unit. As in the proposed rule, HUD interprets the exemptions for

elderly and disabled housing to apply only to residential property

which is designated exclusively for elderly or disabled use.

Some commenters complained about this restrictive interpretation

and urged that it should be enough that elderly or disabled persons

reside in a dwelling unit and that no young children are expected to

reside there. After careful consideration, HUD has decided to retain

the interpretation of the exemption that was adopted in the proposed

rule. This is consistent with the definition of target housing used in

all regulations issued pursuant to Title X. The statute has never been

interpreted as providing an exemption for each dwelling that happens to

be occupied by elderly or disabled persons. Such a policy, in the

judgment of the Department, would be contrary to the intent of the

statute, which is to eliminate as far as practicable lead-based paint

hazards in all housing receiving Federal assistance and in federally

owned housing at disposition.

[[Page 50149]]

Most dwellings currently occupied by elderly persons or persons with

disabilities will probably be occupied by a child in the future.

The Department defines the phrase ``expected to reside'' in the

statutory definition of target housing as meaning that there is actual

knowledge that a child is expected to reside, rather than a general

presumption that a child will probably reside in the dwelling unit

sometime in the future. If a woman residing in the dwelling unit is

known to be pregnant, there is actual knowledge that a child is

expected to reside in that unit. However, in the context of most

residential real estate transactions it is not advisable to inquire as

to whether a woman is pregnant. The term ``expected to reside'' is used

in the statutory definition of ``target housing'' in Title X, but it is

not defined there. It would not be unreasonable for people seeking to

comply with the law to think that the term might refer to the distant

future, that is ``expected to reside at some time, however far in the

future.'' That uncertain potentiality is not part of HUD's

interpretation of statutory intent. Therefore HUD is providing this

tightened definition to minimize confusion.

b. Absence of Lead-Based Paint, or Prior Hazard Reduction. The

proposed rule provided exemptions from certain requirements if a

residential property was found to contain no lead-based paint, but such

exemptions did not apply to all programs. To streamline the final rule,

exemptions are provided for properties found not to have lead-based

paint by a certified lead-based paint inspector and for properties in

which all lead-based paint has been identified and removed in

accordance with procedures established by an EPA-authorized State or

tribal program or by EPA in accordance with 40 CFR part 745, subparts L

and Q. If the method of abatement is enclosure or encapsulation, this

exemption does not apply because lead-based paint is still present.

An owner or recipient of Federal assistance hoping to qualify for

this exemption may question whether correcting for possibly incorrect

(or outdated) positive findings during lead-based paint inspections is

permissible. In the rule, the owner or recipient always retains the

option of having additional tests performed by a certified lead-based

paint inspector. Nothing in the regulation is intended to revoke or

restrict that option. An additional test can sometimes clarify whether

lead-based paint is or is not present. Actions may be taken based on

the results of the most recent inspection by a certified lead-based

paint inspector, provided appropriate technology is used. Laboratory

analysis of a properly taken paint sample is a more reliable method of

measurement than the use of a portable X-ray fluorescence (XRF)

analyzer on site. Therefore a new laboratory analysis of a paint sample

can overturn either an old portable XRF reading or an old laboratory

test, but a new portable XRF reading can overturn only an old portable

XRF reading.

These general exemptions are intended to apply only if the entire

residential property is free of lead-based paint or has had all lead-

based paint removed. The term ``residential property'' is defined in

the rule as including such things as outbuildings, fences, and play

equipment affixed to the property as well as dwelling units and common

areas.

HUD is providing this exemption to assure that the highest priority

in the use of scarce lead-based paint hazard control resources is given

to residential properties with lead-based paint. The Department

recognizes that some properties have dust-lead hazards and/or soil-lead

hazards but do not have any lead-based paint. These properties are

expected to be a small proportion of the total affected stock, however.

c. Housing To Be Demolished. In response to questions from various

sources, the rule provides that housing to be demolished is exempt,

provided the housing remains unoccupied until demolition. Owners should

be aware, of course, that other local, State and Federal regulations

pertaining to environmental protection and occupational safety and

health may apply to demolitions.

d. Nonresidential Property. The final rule also states explicitly

that property that is not and will not be used for human habitation is

exempt. In the case of a mixed use property, HUD intends that only

those parts of the property normally associated with residential use

shall be covered by this rule. For example, retail and office

establishments in an apartment building would not be covered, but

hallways leading to such uses would be covered if the hallways also

service dwelling units that are covered by the rule.

e. Rehabilitation Disturbing Little or No Painted Surface.

Commenters also complained that existing exemptions in HUD rules for

weatherization, emergency repairs, water/sewer hookups, installation of

security devices, and other special work were no longer included in the

rule, even though, the commenters said, these were ``realistic and

necessary'' exemptions. The commenters were concerned primarily with

rehabilitation activities funded under the Community Development Block

Grant or HOME programs.

With regard to weatherization, the Department believes this is too

broad a category on which to base an exemption from this rule.

Weatherization often includes window replacement, which can generate

lead dust and therefore should be performed with safe work practices.

With regard to such activities as water and sewer hookups and

installation of security devices, HUD has provided in subpart B of the

final rule an exemption for rehabilitation that does not disturb a

painted surface. Also, activities that disturb painted surfaces of no

more than a ``de minimis'' amount of 2 square feet in any one interior

room, 20 square feet on exterior surfaces, or 10 percent of the total

surface area on an interior or exterior component with a small surface

area are not required to use ``safe work practices,'' and worksite

clearances are not required for such work. (This de minimis is stated

in the section on safe work practices in subpart R of the rule.)

Therefore, installation of security devices under rehabilitation

assistance will generally not require special precautions usually

associated with lead-based paint hazard reduction. Furthermore, in

situations in which security devices are being installed as a part of

the operation and maintenance of a residential property that is

required under this rule to incorporate ongoing lead-based paint

maintenance as a part of the everyday maintenance of the property, the

same ``de minimis'' exemption applies.

f. Emergency Actions and Natural Disasters. The proposed rule

provided a general exemption for properties undergoing emergency

repairs in response to natural disaster. The Department believes that

there are circumstances in which the time required for compliance could

adversely affect life or property and, consequently, an appropriately

tailored exemption is needed.

Two commenters requested additional exemptions beyond the ``natural

disaster'' exemption set out in the proposed rule. They believed it was

too narrow in scope, arguing that any form of disaster should be the

basis for an exemption from the rule's requirements. On the other hand,

others claimed that no justification existed for exempting damaged

properties. At a minimum, these properties need risk assessment and

full disclosure before any sale, one commenter said.

[[Page 50150]]

In the final rule, HUD has provided in subpart B a more carefully

worded provision that provides an exception for ``emergency actions

immediately necessary to safeguard against an imminent danger to human

life, health or safety, or protect property from further structural

damage (such as when a property has been damaged by a natural disaster,

fire, or structural collapse) * * *'' The exemption states, however,

that in such cases ``occupants shall be protected from exposure to lead

in dust and debris generated by such emergency actions to the extent

practicable.'' It is HUD's intent that such protection would include a

thorough cleanup. The exemption extends only to the completion of

repairs necessary to respond to the emergency; after that, the

requirements of the rule apply.

g. Law Enforcement Seized Property. A spokesperson for the Treasury

Department's Asset Forfeiture Program urged that law enforcement

agencies seizing real properties should be able to dispose of those

properties without the financial burden of compliance with the rule,

with only a duty to warn potential transferees or purchasers of the

possible presence of a lead-based paint hazard. The Justice

Department's U.S. Marshals Service made similar comments, adding that

the regulations will create ``an economic disincentive to seizing and

forfeiting pre-1978 residential property.''

In view of the special nature of law enforcement, HUD has added a

provision in subpart B of the final rule that exempts seized properties

owned for 270 days or less from the evaluation and hazard reduction

requirements of subpart C of this rule, which sets requirements for the

disposition of residential properties owned by Federal agencies other

than HUD. For seized properties owned longer than 270 days, the

requirements of subpart C will apply. Ownership begins upon receipt of

a judicial order of forfeiture. Approximately 400 seized, pre-1978

dwelling units are disposed of annually by the Department of the

Treasury and the Federal Marshals Service of the Department of Justice

combined. HUD expects that the Federal law enforcement agencies, in

exercising their managerial responsibilities over seized residential

property, will make every reasonable effort to maintain the property in

a lead-safe condition.

h. Emergency Rental and Foreclosure Prevention Assistance. Some

State and local agencies urged that programs providing emergency rental

assistance or foreclosure prevention assistance be exempted. The final

rule provides a limited exemption for such programs subject to subpart

K, Acquisition, Leasing, Support Services, or Operation. The exemption

for any specific dwelling unit expires after 100 days. HUD does not

intend that multiple households receiving emergency assistance can be

recycled through a unit without subjecting the unit to the requirements

of subpart K.

i. Adverse Weather. In the proposed rule, the subparts covering

disposition of HUD-owned single family property included an exception

allowing delay of repainting if weather conditions make such work

infeasible. In the final rule, the concept behind this exception has

been broadened to apply to evaluation and reduction activities under

all subparts, allowing delay ``for a reasonable time during a period

when weather conditions are unsuitable for conventional construction

activities.'' HUD intends that this exception will allow reasonable

delay only and will not be an excuse for noncompliance.

j. Historic Properties. The National Park Service commented that

HUD should provide greater flexibility to allow a balance to be

achieved in specific cases between the objectives of the National

Historic Preservation Act and those of the Lead-Based Paint Poisoning

Prevention Act. Conflicts between the two goals, the protection of

historically significant buildings and the creation of lead-safe

housing, may occur where abatement is required. For example, the use of

artificial siding and the replacement of historic trim and doors is

generally not appropriate for historic buildings. In response, HUD has

added a general exception in subpart B that allows designated parties

to use interim controls instead of abatement methods, if requested by

the State Historic Preservation Office, on properties listed or

determined to be eligible for listing in the National Register of

Historic Places or contributing to a National Register Historic

District. If interim controls are conducted, ongoing maintenance and

reevaluation shall be conducted as required by the applicable subpart.

For comprehensive guidance on eliminating lead-based paint hazards from

historic housing without removing historically significant features,

see Chapter 18 of the HUD Guidelines or the National Parks Service

publication, ``Preservation Brief 37: Appropriate Methods for Reducing

Lead Paint Hazards in Historic Housing,'' by S.C. Park and D.C. Hicks,

National Parks Service, Washington, DC 20013-7127 (1995).

k. Insufficient Appropriations. In the proposed rule, the

Department included in the subpart covering disposition of residential

property by a Federal agency other than HUD an exemption from that

subpart if a Federal agency determines that sufficient funds are not

appropriated to carry out the requirements of the subpart. In the final

rule, this exemption, which implements a provision of section 1013

Title X, has been moved to the Exemptions section of subpart B (See

Section III.A.3 of this preamble).

6. Deference to Other Agencies. Commenters sought, in varying

forms, ``exemptions'' providing for deference to State or local

agencies or other Federal agencies based on State lead-control laws or

an agency's demonstrated performance.

In the final rule, the Department has provided such deference in

specific situations. First, HUD is requiring that inspections, risk

assessments and abatements be conducted in accordance with the work

practices standards of a State or Indian Tribe with a program

authorized by EPA under subpart Q of 40 CFR part 745 or, in the absence

of such a program, with EPA's standards at 40 CFR part 745, subpart L.

Therefore HUD is in effect incorporating the opportunity that is built

into the EPA regulations for States to determine, within the EPA

framework, procedures for evaluation and reduction. With regard to the

policies of Federal agencies other than HUD, the final rule gives such

agencies the authority to determine whether appropriations are

sufficient to implement the requirements of section 1013 of Title X.

(See further discussion of this matter in Section III.A.3 of this

preamble, above.)

One agency suggested that high-performing public housing agencies

with good property maintenance records should be exempt from the

additional evaluations provided in the rule. Because the current

performance rating instrument used by HUD and public housing agencies

does not include a specific grade for lead-based paint activities, HUD

does not believe it has a valid way to identify ``high-performing

public housing agencies'' for the purposes of this rule. It is not

possible, therefore, to provide such a broad exemption at this time.

7. Changes and Deletions to Current HUD Regulations. In the

proposed rule, HUD did not include specific provisions for the deletion

of existing part 35 provisions being replaced by this rule or the

numerous lead-based paint requirements set out in various program

regulations in Title 24. It was stated, however, in the preamble to the

proposed rule that such deletions would be made, and this final rule

provides such changes and deletions.

[[Page 50151]]

8. Indian Housing Programs. In the proposed rule, two subparts were

applicable to Indian housing programs: the one pertaining to

rehabilitation (which was to apply to the Indian Community Development

Block Grant Program), and the one pertaining to public and Indian

housing programs (which was to apply to housing owned and operated by

Indian housing authorities under public and Indian housing programs).

With the enactment of the Native American Housing Assistance and Self

Determination Act of 1996 (NAHASDA, Pub. L. 104-330, 25 U.S.C. 4101 et

seq.), it has been necessary to revise the way this rule applies to

Indian housing programs. NAHASDA separated Indian housing from public

housing and made funding for Indian housing under the United States

Housing Act of 1937 unavailable. The primary program created by NAHASDA

is the Indian Housing Block Grant Program, which can be used for many

different forms of housing assistance. Therefore the following subparts

have been made applicable to the Indian Housing Block Grant program:

Subpart H, Project-Based Rental Assistance; subpart J, Rehabilitation

(also applicable to the Indian Community Development Block Grant

program); subpart K, Acquisition, Leasing, Support Services, or

Operation (also applicable to the Indian Community Development Block

Grant Program); and subpart M, Tenant-Based Rental Assistance. Tribes

and tribally designated housing entities receiving funds from the

Indian Housing Block Grant and Indian Community Development Block Grant

programs must determine which subpart of this final rule applies based

on the type of activity being conducted or assistance being provided to

a particular dwelling unit or residential property. If more than one

type of assistance is being provided, the most protective requirements

apply.

9. Applicability of Subparts to Programs and Dwelling Units.

Subparts C, D, and F through M of the final rule each set forth

requirements for a specific type of Federal housing activity or

assistance, such as mortgage insurance, rehabilitation assistance,

project-based rental assistance, tenant-based rental assistance, or

public housing. Each of these subparts applies to more than one

program. For example, there are at least five HUD programs that provide

tenant-based rental assistance, so all five are therefore subject to

subpart M, which states the lead-based paint requirements for housing

receiving tenant-based rental assistance.

In the proposed rule, HUD listed in the applicability section of

each subpart the programs to which the subpart was to be applicable.

This led to concern within the Department that such lists may be

incomplete or go out of date. Therefore, in the final rule these lists

have been removed from the applicability sections. In the applicability

sections, care has been taken to try to describe clearly what types of

housing assistance is and is not covered by each subpart. A current

list of programs covered by each subpart is available on the internet

at www.hud.gov, or by mail from the National Lead Information Center at

1-800-424-LEAD.

Several HUD housing assistance programs have more than one type of

eligible activity, so some programs are subject to more than one

subpart of this rule, as was mentioned above in regard to the Indian

Housing Block Grant program. In fact, there are at least nine such

programs at the time of this writing. These programs, with the subpart

designations in parentheses, are as follows: Indian Housing Block Grant

program (H, J, K, and M), Indian Community Development Block Grant

program (J and K), Home Investment Partnerships program (HOME) (J, K,

and M), Community Development Block Grant program (J and K), Supportive

Housing Program (H, J, and K), Shelter Plus Care (H and M), Housing

Opportunities for Persons With AIDS (HOPWA) (J and M), Homeownership of

Multifamily Units (HOPE 2) (J and K), and HOPE for Homeownership of

Single Family Homes (HOPE 3) (J and K). Grantees, participating

jurisdictions, Indian tribes and other entities administering these

flexible programs must decide which subpart or section of this rule

applies to the type of assistance being provided to a particular

dwelling unit or residential property. If more than one subpart or

section applies, the one with the most protective requirements applies.

To assist in making this judgment, HUD is providing in subpart B of the

rule a table listing subparts and sections in order from the most to

least protective initial hazard reduction requirements. In some cases,

more than one program as well as more than one subpart or section may

apply to a property or dwelling unit. In this case also the most

protective requirements apply.

A multifamily residential property may have some dwelling units

subject to one set of requirements and other units subject to other

requirements. In this case, the owner has the choice of either

operating the property with different sets of requirements or operating

the entire property at the most protective level. An example of this

situation is provided in subpart B of the rule.

B. Structure of the Rule

1. Organization. In the interests of simplicity and streamlining,

all of the Department's lead-based paint requirements, including the

disclosure rule, are now located in part 35. The proposed rule set

forth lead-based paint requirements in three parts, including new parts

36 and 37 that, together with part 35, subpart H, were to comprise all

of HUD's regulatory requirements for lead-based paint in a single

place. Part 36 was to describe the lead-based paint requirements for

each program covered under the Lead-Based Paint Poisoning Prevention

Act, grouped in subparts according to the agency or office responsible

and the type of assistance. Part 37 was to describe the standards and

procedures for conducting the lead-based paint evaluation and hazard

reduction activities required in part 36, with different activities

described in different subparts.

In the preamble to the proposed rule, however, HUD indicated that

it was considering consolidating parts 36 and 37 in the final rule.

This has been done. The entire rule consists of 12 subparts (B, C, D, F

through M, and R, with E and N through Q reserved), all in part 35.

Subpart A of part 35 is the rule requiring disclosure of known lead-

based paint hazards upon sale or lease of residential property

(disclosure rule), which was promulgated on March 6, 1996. EPA

published the same rule at 40 CFR part 745, subpart F. In this current

rulemaking, HUD is moving the location of the disclosure rule from

subpart H to subpart A of 24 CFR part 35. No text or section number

changes are being made to the disclosure rule. The general requirements

found in subpart A of the proposed rule are located under subpart B of

today's final rule.

Subpart B of the final rule provides all the general requirements,

definitions, exemptions, and options that apply to subparts B, C, D, F

through M, and R. Subpart B does not apply to the Disclosure Rule in

subpart A. All residential properties and dwelling units subject to

this final rule are also subject to the Disclosure Rule. Subparts C, D,

and F through M set forth the requirements for each program or type of

assistance. Subpart R of the final rule contains the required standards

and methods for conducting evaluation and hazard reduction activities

formerly found in part 37 of the proposed rule. The provisions of

subpart R are referenced in subparts B, C, D, and F through M. As

explained below, the standards and methods requirements of

[[Page 50152]]

this rule have been streamlined considerably.

One commenter suggested that the requirements for notice to

residents of the results of evaluation and hazard reduction be located

at the beginning of the rule so that they need not be repeated for each

program or type of housing. This has been done. The notice requirements

are found in subpart B at Sec. 35.125 and are referenced in the

program-specific subparts.

2. Simplicity and Overall Strategy. Several commenters complained

that, despite the effort to consolidate lead-paint regulations in a

single rule, the format of the proposed rule remained ``program

specific''. Others called it ``cumbersome''. Because community

development and housing administrators must work with a variety of

programs, they will be required to operate under different subparts.

Calling the rule lengthy and technical, one commenter said it would be

helpful if it could be organized ``in a more user-friendly fashion,''

using cross-references. Several commenters regarded the rule as

``confusing'' or in need of further consolidation.

One commenter complained that there remained ``at least 14

different requirements,'' based on the program authority or on the

amount of assistance provided.

In the final rule there are seven evaluation and hazard reduction

strategies for HUD housing programs. These strategies vary in

stringency, costliness, and lasting effectiveness in preventing

childhood lead poisoning. They are applied to the various forms of

housing assistance, based generally on: (1) The amount, nature and

duration of financial assistance provided under the program; (2) the

risk of childhood lead poisoning in the housing (based on year of

construction); and (3) whether the housing is generally rental or

owner-occupied.

There are two primary differences between the strategies of the

final rule and those of the proposed rule: (1) Paint repair has been

replaced by paint stabilization; and (2) clearance is required in the

final rule after paint stabilization, and the clearance requirement has

replaced the dust-testing requirement for pre-1950 housing with tenant-

based rental assistance.

In order from least to most stringent, the seven strategies are:

(1) Safe work practices during rehabilitation;

(2) Ongoing lead-based paint maintenance practices to assure that

paint is maintained so that it remains intact, and that safe work

practices are used (similar to the ``essential maintenance practices''

recommended by the Task Force);

(3) Visual assessment and paint stabilization;

(4) Risk assessment and interim controls (with the option of

performing specified standard treatments);

(5) Lead-based paint inspection and risk assessment, and interim

controls;

(6) Risk assessment and abatement of lead-based paint hazards; and

(7) Lead-based paint inspection, and abatement of all lead-based

paint.

These strategies include the following fundamental principles.

Whenever hazard reduction methods are employed (except for disturbances

of only a small area of paint surface) clearance is required to ensure

that the job is done properly. Second, ongoing lead-based paint

maintenance practices are required in rental housing whenever HUD has a

continuing relationship with the property. Third, to ensure that the

controls are still intact and effective over time, reevaluation is

required whenever a risk assessment and interim controls are required

and there is a continuing HUD subsidy or ownership of rental housing.

Fourth, special procedures are required in programs with a continuing

subsidy or HUD ownership of rental housing whenever a child is

identified with a blood lead level that calls for environmental

assessment and intervention (called an ``environmental intervention

blood lead level'' in the rule).

The first strategy, safe work practices during rehabilitation, is

applied only to rehabilitation assistance of no more than $5,000 per

unit. This is a ``do no harm'' policy that is intended to assure that

low-cost rehabilitation does not generate lead-based paint hazards. It

allows low-cost rehabilitation to go forward without costly lead-based

paint requirements; but it does not necessarily determine whether or

not the entire dwelling unit or property is ``lead safe,'' because, for

this strategy, clearance must be conducted only for the worksite, which

may not include the entire unit.

The goal of the second strategy, ongoing lead-based paint

maintenance only, is to ensure that paint is kept stabilized and that

the work is done in a safe manner. Clearance is required only of the

worksite. This strategy does not provide full assurance that a property

is free of lead-based paint hazards, but it will minimize such hazards

over time. It is applied to properties that are subject to an

application for multifamily mortgage insurance and were built between

1960 and 1977. These are rental properties with no subsidy, only

mortgage insurance, but there is a continuing relationship between the

Department, the borrower and the lender through the insurance

agreement. These properties were built toward the end of the period

when lead-based paint was used in housing and are less likely to have

lead-based paint hazards than older housing. This strategy is also

applied as a transitional requirement for multifamily properties

receiving project-based assistance during the phase-in period before a

risk assessment is conducted.

The third strategy, visual assessment, paint stabilization and

clearance, provides assurance that the housing to which it is applied

is ``lead safe.'' To provide such assurance, HUD intends that clearance

be unit-wide, not just for the worksite. It should be noted that

clearance is required only if paint stabilization is performed, so a

unit that passes the initial visual assessment (i.e. no deteriorated

paint is identified) undergoes no dust testing. Also, if the housing is

in poor physical condition, or if there are high levels of lead in the

soil, lead-based paint hazards may reappear. Therefore, ongoing

maintenance is required whenever HUD has a continuing relationship with

rental property. The final rule applies this strategy to HUD-owned

single family housing that is sold with a mortgage insured by HUD;

properties with acquisition, leasing, support services, or operation

assistance; tenant-based rental assistance programs where a child of

less than 6 years of age resides; multifamily housing receiving up to

and including $5,000 per unit per year in project-based rental

assistance; and single family properties assisted under the project-

based certificate or voucher program, the moderate rehabilitation

program, or another HUD-funded project-based rental assistance program.

The fourth strategy, risk assessment and interim controls, with the

option to conduct standard treatments, provides assurance that all

lead-based paint hazards have been eliminated. Unit-wide clearance is

always required. Ongoing maintenance of painted surfaces is required

whenever HUD has a continuing relationship with the property; and

reevaluation is required if HUD is the owner, if there is project-based

rental assistance in a multifamily property exceeding $5,000 per unit

per year, and in public housing. This strategy is applied to properties

that are subject to an application for multifamily mortgage insurance

and were built before 1960, housing receiving multifamily project-based

assistance of more than $5,000 per unit annually, and housing receiving

rehabilitation

[[Page 50153]]

assistance of $5,000--$25,000 per unit. A risk assessment and interim

controls are also required in public housing developments that have

lead-based paint that has not yet been abated.

The fifth strategy, lead-based paint inspection, risk assessment,

and interim controls, is applied only to HUD-owned multifamily housing.

It differs from the fourth strategy in that it requires a lead-based

paint inspection as well as a risk assessment. Most of these properties

are being sold, frequently without HUD mortgage insurance, so HUD will

not have a continuing relationship with them and thus will not be able

to ensure that ongoing lead-based paint maintenance practices and

reevaluation are practiced. With a lead-based paint inspection, HUD

will provide the buyer with information on the location of any

remaining lead-based paint on the property that the buyer and later

owners can use to avoid generating dust-lead hazards in the future.

The sixth strategy involves risk assessment and abatement of lead-

based paint hazards. This strategy is used when Federal rehabilitation

assistance is greater than $25,000 per unit. When Federal funds are

used to make such a substantial investment in a property, it is logical

that long-term hazard control measures be implemented at a time when

substantial concurrent rehabilitation is being done. Paint testing of

surfaces to be disturbed during rehabilitation is called for to ensure

that new lead-based paint hazards are not inadvertently created, but

the designated party has the option to presume the presence of lead-

based paint on such surfaces.

The objective of the seventh strategy, lead-based paint inspection

and abatement of lead-based paint, is abatement of all lead-based

paint. This strategy applies to public housing and to properties that

are being converted from nonresidential to residential use or are

subject to major rehabilitation and are being financed with HUD/FHA

multifamily mortgage insurance. This is not a new requirement for

public housing. Current public housing regulations require a lead-based

paint inspection and, at the time of modernization, abatement of all

lead-based paint. However, because complete modernization (and

therefore complete abatement) may not occur for many years in some

housing developments, and because modernization (and therefore

abatement of lead-based paint) can occur on a piecemeal basis (e.g.,

kitchens one year, bathrooms another), the final rule, like the

proposed rule, adds the requirements of strategy four, risk assessment

and interim controls, during the period prior to completion of

abatement to assure that all public housing occupied by families will

be free of lead-based paint hazards. The requirement for conversions

and major rehabilitations financed with multifamily mortgage insurance

is new, however. HUD believes that such properties, after undergoing

such substantial renovation, should be as free as reasonably possible

of any future lead-based paint hazards.

3. Prescriptiveness. There were several comments to the effect that

the rule was too prescriptive. These commenters generally recommended a

movement toward ``performance-based'' requirements, arguing that a

performance-based rule would stand up better to future technical

innovations.

One commenter recognized that adopting performance-based standards

was not always a simple matter. Decisions to do so must be made

``requirement-by-requirement,'' but the commenter urged looking for

means to use such standards wherever feasible, and cautioned against

``locking in'' requirements which new technology or research may well

show to be inappropriate in the future. For example, the commenter

recommended against specifying HEPA vacuuming in the rule, indicating

that research underway may suggest that in some cases less specialized

equipment or less extensive procedures can be just as effective.

Another commenter suggested basing requirements on performance, but

including a more prescriptive ``safe harbor'' optional alternative.

Sometimes, the commenter observed, performance-based standards are

simply unhelpful to those regulated due to lack of clarity or

information about the method of obtaining the desired performance.

Several commenters recommended against ``too rigid'' regulatory

requirements that would require ``full-blown'' future rule making

proceedings to overturn. Some suggested incorporation of guidelines

into the rule by reference.

Although the proposed rule included prescriptive requirements,

Sec. 37.1(b) of the proposed rule stated that those requirements did

not apply to lead-based paint inspections, risk assessments and

abatements performed by inspectors, risk assessors, abatement

supervisors and workers certified in accordance with EPA regulations

under the Toxic Substances Control Act (TSCA). Rather, the prescriptive

standards in proposed part 37 were to apply only when such activities

were performed by individuals who were not certified in accordance with

EPA requirements, should certification mechanisms not be in place.

The effective date of the EPA certification requirements and the

EPA work practices standards is August 31, 1999. By that date,

individuals conducting inspections, risk assessments and abatement must

be certified and all such activities must be performed pursuant to the

work practices standards in that regulation or in requirements of EPA-

authorized State or Tribal programs. There is no need for HUD to issue

detailed requirements for risk assessment, inspection and abatement.

They have been omitted, therefore, from the final rule, except for

interim dust and soil standards.

This leaves the question of whether the proposed requirements for

interim controls and related procedures that are not covered by the EPA

regulations are too prescriptive. Related procedures include standard

treatments, occupant protection and worksite preparation, clearance,

ongoing lead-based paint maintenance, reevaluation, and safe work

practices. In the final rule, HUD has tried to strike a balance between

the need to assure that the procedures will be effective in preventing

childhood lead poisoning and the goal of providing flexibility and

avoiding rigidity.

C. Effective Date

The proposed rule included an effective date of 12 months after

publication of the final rule, and the Department explained in the

preamble that this time period was chosen to allow all affected parties

time to prepare for implementation of the new requirements.

Some commenters urged that the effective dates in the rule be moved

up in whole or in part, while others asked for a further delay to allow

affected parties to secure expert assistance or training opportunities.

One commenter urged waiting to make the rule effective until EPA's

upcoming rule on health-based standards for lead in dust and soil was

promulgated and made effective.

Advocates of rapid effectiveness pointed out that the rule already

was ``overdue,'' and claimed that important health benefits could be

realized by the regulation's becoming operational sooner rather than

later. Several commenters advocated immediate effectiveness for

portions of the rule dealing with occupant protection, worksite

preparation and the prohibitions against unsafe practices.

HUD considered imposing an immediate effective date because the

statutory effective date of January 1, 1995 had already passed and

because of the risk to the health of children from

[[Page 50154]]

a further delay in implementing these requirements. On the other hand,

HUD noted that program administrators at all levels of government, as

well as property owners and contractors performing lead-based paint

activities, would not have adequate time for education, training,

planning and budgeting to implement fully the new technical standards,

requirements and procedures with an effective date earlier than

proposed.

After thorough consideration of these varying points of view HUD

has decided to retain the proposed 12-month time period following

publication for a phasing in of the effective date of the final rule,

with one exception: the prohibition of certain methods of paint removal

or surface preparation set forth in Sec. 35.140 shall be effective 60

days after publication of this final rule. In addition, designated

parties may choose to comply with the requirements of this final rule

before the effective date, instead of complying with existing

requirements, if they desire and provided there is not a programmatic

limitation that would preclude such an action.

The exception to the 12-month phase-in policy is appropriate for

prohibited practices. These are already well known; many are in HUD's

current regulations and guidance and are prohibited by the EPA final

rule on training and certification, which was published on August 29,

1996. Many States already prohibit these practices, and other safer

paint removal methods are well known. (See Section III.E.2.g. of this

preamble.)

One commenter requested clarification of the effective date's

impact on pre-rule lead-based paint control activities already

undertaken and partially completed, and urged that it be made clear

that this ongoing work could be carried forward after the effective

date ``without revision.'' The Department's policy on this matter

varies somewhat from program to program, because of differences in

regulations and administrative procedures. Therefore the applicability

sections of subparts F through M include statements specific to each

program. In subpart F, pertaining to HUD-owned single family housing,

any property to be sold with a HUD-insured mortgage and which is

offered for sale on or after the effective date of this final rule must

comply with the requirements of the rule. In the case of subpart G,

pertaining to multifamily mortgage insurance, any property for which a

HUD or FHA commitment is made on or after the effective date must

comply with the rule. With regard to subpart H, project-based rental

assistance, properties that are receiving Section 8 assistance on or

after the effective date of this rule must comply. In the case of

competitively awarded grants under the HOPWA, Supportive Housing, and

Shelter Plus Care programs, the requirements apply to grants awarded

pursuant to NOFAs issued on or after October 1, 1999. For formula

grants under HOPWA, the requirements apply to activities for which

program funds are first obligated on or after September 15, 2000.

Subpart I states that HUD-owned multifamily properties and properties

for which HUD is mortgagee-in-possession must comply with the rule if

they are offered for sale or held or managed by HUD on or after the

effective date of this rule. Subpart J, pertaining to rehabilitation

assistance, includes program-specific information on the effective date

for projects funded under the HOME program, the Community Development

Block Grant (CDBG) programs, the Indian Housing Block Grant (IHBG)

program, HUD-administered homelessness assistance programs, and the

Indian Community Development Block Grant program. Project-specific

effective date policies for housing subject to subpart K, Acquisition,

Leasing, Support Services, or Operation, are the same as for subpart J.

With regard to public housing, subpart L states that all housing to

which the subpart applies is covered by the rule as of the effective

date of this final rule. Finally, subpart M, which pertains to tenant-

based rental assistance, states that housing receiving such assistance

becomes subject to the requirements of this rule at the time of an

initial or periodic inspection that occurs on or after the effective

date of this final rule. (The initial or periodic inspection referred

to in the previous sentence is the inspection conducted by the public

housing agency (PHA) or other administering agency to determine whether

the housing unit meets the requirements of the program. It is not a

lead-based paint inspection.)

D. Other General Issues

1. Policy on Abatement. Some commenters saw in the proposed rule an

undue emphasis on abatement, as opposed to more limited lead hazard

control measures. ``As such,'' one organization declared, ``the rule

appears inadequately protective of children's health, and unlikely to

realize the full benefits predicted by the Economic Analysis as

justification for the costs of compliance.'' Abatement should not be a

defined term in the rule, nor used at all, this commenter stated. The

recommended term was ``hazard abatement,'' used to mean ``any set of

measures to permanently eliminate lead-based paint hazards.'' This

should be the ``maximum requirement'' of the rule. While abatement of

intact lead-based paint would always remain an option, it need not and

should not be required, the commenter urged.

The same commenter urged that the definition of abatement should

not include reference to lead-based paint (i.e., intact paint). By

doing so, there is a deviation from the definition of abatement in

Title X itself. Failing to make the distinction between intact LBP and

lead hazards is likely to ``recreate * * * the scenarios that Title X

was supposed to end: Paralyzed non-compliance because of the costs and

burdens of performing abatement of non-hazardous intact LBP.''

A commenter who felt the rule didn't stress abatement enough was

``troubled by the rule's implicit acceptance that it is infeasible to

abate lead paint from housing.'' Arguing that the societal returns more

than justified the cost, the commenter declared that the obstacles to

abatement as a predominant policy were ``not economic, but political.''

HUD agrees that abatement should be targeted toward hazards, not

the mere presence of lead-based paint, except in public housing, where

lead-based paint abatement is required by statute, and for conversions

and major rehabilitation projects seeking HUD/FHA multifamily mortgage

insurance. The final rule defines abatement accordingly but retains the

existing lead-based paint abatement requirements for public housing.

The legislative history of Title X shows that Congress did not intend

for the existing public housing program requirements to be changed.

2. Cost of Compliance. Many commenters--particularly State and

local funded agencies, housing developers, and their national and

regional spokespersons--expressed serious concerns about the rule's

cost.

While many suggestions for change in details of the rule were

provided by these commenters, the tenor of their comments was not so

much against the rule as against the idea of carrying out its mandate

without separate funds earmarked solely for that purpose.

Some commenters felt that HUD had grossly underestimated the costs

of compliance and that these costs, in many circumstances, would divert

already-limited funding from its principal purpose of providing

shelter. Rural housing suppliers, especially, lamented the anticipated

problems the rule would bring. One commenter expressed the fear that

the rule would ``severely hamper rehabilitation in rural,

[[Page 50155]]

small communities and would potentially drive the cost of doing

business so high that many communities may decide that it is simply not

worth it to try and repair existing, older substandard housing.''

Some commenters suggested that the dangers of lead paint were

exaggerated or that local health department controls were adequate to

locate children with high blood lead levels and cope with the problem

on a case-by-case basis.

Other public agency commenters were more positively disposed toward

the goal of preventing childhood lead poisoning before a child is

poisoned, instead of waiting until the damage has already been done,

but still worried about funding. Typical of these comments was that of

a middle sized city with an active lead-hazard control program. Calling

the rule (and Title X) an ``unfunded mandate,'' the commenter cited the

staff costs associated with the rule's monitoring expectations, calling

them unrealistic: ``If additional funds were provided for hard and soft

rehabilitation as well as staff costs, this [rule] would be a good

policy initiative that we could fully support and implement. However,

without additional funds, * * * it presents a major problem for cities

trying to address an overall need for affordable housing.''

A frequent suggestion was that the rule would cause ``redundant and

unnecessary'' lead-based paint work to be performed. The focus, these

commenters argued, should be on reducing and controlling lead hazards

in units occupied by small children or children who had already been

lead poisoned.

A major housing industry organization asserted that the proposal

contains unnecessary impediments to the performance of paint repair

work and interim control tasks by employees of owners and managers, or

by the owners themselves, and urged the Department to eliminate these

wherever feasible.

One commenter, a municipal health department lead poisoning

prevention program, predicted that the proposed rule's changes would

``seem daunting'' to community-based agencies at first. The commenter

generally agreed with the rule's approach and predicted that compliance

costs would be ``minimal.'' The commenter said, however, that

``government support and leadership to ensure that training,

inspection/risk assessment services, and dust wipe resources are

available and sometimes subsidized could prove to be instrumental in

effective implementation.''

In response to these comments, HUD does not believe that the

childhood lead poisoning problem has been ``overblown,'' in light of

the results of the National Health and Nutrition Evaluation Survey

(described in Section II.A of this preamble, above) showing that

approximately 900,000 children still have blood lead levels equal to or

greater than 10 g/dL, the CDC level of concern. HUD also

disagrees that the rule should impose requirements only on units

housing young children. HUD believes that it is not practical in most

housing programs to expect managers to know when children are or are

not residing in particular units, especially in light of the

significant resident turnover rates and inconsistencies in program

administration among comparable units receiving comparable Federal

assistance. Title X holds that it is far better to identify and correct

lead-based paint hazards before a child is poisoned. Such prevention is

especially important, because some effects of lead poisoning appear to

be irreversible. The one exception to this policy is in the tenant-

based rental assistance programs, in which income certification

requirements facilitate the determination of childhood occupancy and

for which there is legislative history indicating Congressional concern

that lead-based paint requirements could deter landlords from program

participation.

With regard to the cost of the rehabilitation requirements, it is

important to note that the requirements of the rule are limited for

housing receiving up to and including $5,000 per unit in rehabilitation

assistance. Also, the option to perform standard treatments instead of

a risk assessment and interim controls may reduce costs in certain

situations. (See further discussion below in Section III.E.10 of this

preamble.) HUD intends to work closely with local housing and community

development agencies to further develop ways to efficiently meld lead-

based paint hazard reduction with rehabilitation.

With regard to the public housing program, HUD does not believe

that long-term annual cost increases will be significant, although

there will be one-time risk assessment and interim control costs in the

short term for some housing agencies. HUD encourages public housing

agencies to schedule completion of abatement of lead-based paint in

order to put this issue behind them.

3. TUse of Task Force Recommendations. Numerous commenters called

upon HUD to assure that the rule maintain consistency with the 1995

report of the Task Force on Lead-Based Paint Hazard Reduction and

Financing (Task Force), which was a Federal advisory committee

appointed by the Secretary of HUD pursuant to section 1015 of Title X.

Two recommendations of particular interest are the standards or

procedures referred to as ``essential maintenance practices'' and

``standard treatments.'' These procedures were directed toward rental

housing. Essential maintenance practices are the steps the recommended

steps that a landlord should take to reduce the risk of childhood lead

poisoning in pre-1978 dwelling units and associated common areas.

Standard treatments are more aggressive measures to assure that

possible lead-based paint hazards are controlled in older housing.

These procedures were not incorporated by name in the proposed rule,

although many of their elements or concepts were included.

In the final rule, HUD is requiring that all rental housing which

has a continuing financial or regulatory involvement with HUD must be

maintained in a manner similar to that recommended in the Task Force's

essential maintenance practices. Also, the Department has adopted the

concept of standard treatments, as set forth in the Task Force report,

as an option to the basic requirement of a risk assessment and interim

controls. This option is set forth in Sec. 35.120(a). Clearance testing

is required after standard treatments as well as interim controls.

Another Task Force recommendation mentioned favorably by some

commenters is the ``lead hazard control plan,'' which is a plan to be

developed by a property owner that lays out when and where certain

hazard control measures will be conducted within a residential

property. The plan allows an owner to prioritize the work and undertake

the most important tasks or dwelling units first, followed by lower

priority work later, as for example at apartment turnover. The proposed

rule did provide for a hazard reduction plan for multifamily properties

receiving more than $5,000 per unit in HUD project-based assistance.

Although the lead hazard control plan was intended to provide

property owners with flexibility in scheduling lead-hazard control

work, many commenters perceived the plan requirement as ``red tape'' of

limited value and questioned whether HUD would have the staff resources

and expertise to review and approve such plans on a timely basis. HUD

shares these concerns and, in the interests of regulatory streamlining,

has decided to

[[Page 50156]]

delete the plan requirement. The Department continues to believe that

it would be a useful document for property managers, especially those

with responsibility for large multifamily developments, and encourages

owners to develop such plans. The American Society for Testing and

Materials (ASTM, West Conshohocken, PA 19428-2959) has developed a

Standard Guide for Evaluation, Management, and Control of Lead Hazards

in Facilities, and is developing an accompanying user guidebook. These

materials can provide the basis for developing a lead hazard control

plan. They are particularly appropriate for owners of multifamily

dwellings.

4. De Minimis Exceptions. The proposed rule included de minimis

levels of paint deterioration, consistent with the HUD Guidelines,

below which no action would be required. These de minimis levels were

defined as not more than 10 square feet of deteriorated paint on an

exterior wall; not more than 2 square feet on an interior component

with a large surface area 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.

Commenters objected to the de minimis levels on four grounds: (1)

That the de minimis exception is arbitrary and not supported by

science; (2) that the levels are too large, potentially allowing a

total of over ten square feet of defective paint per room (counting

four walls plus a ceiling plus small components); (3) that some owners

or inspectors may use the de minimis exception as an excuse for

overlooking hazardous conditions; and (4) that it is likely to shift

the attention of workers from the importance of practicing lead hazard

control and maintaining painted surfaces in a lead-safe manner to

measuring the size of defective paint surfaces in order to document

that surfaces fall above or below the de minimis level.

HUD acknowledges the merit of these comments, and after careful

consideration has decided to eliminate the de minimis exception for

deteriorated paint from the final rule. All deteriorated lead-based

paint (either known or presumed to be lead-based paint) must be

addressed. This will simplify the rule's implementation considerably.

HUD did retain, however, a de minimis exemption for safe work practices

and clearance, which is consistent with the EPA provision at 40 CFR

745.227(e) that allows dry scraping during abatement on surfaces

totaling no more than 2 square feet per room or 20 square feet on

exterior surfaces. This de minimis exemption is separate from the

safety-related exception allowing dry scraping in conjunction with the

use of heat guns or within 1 foot of electrical outlets; that is, the

area covered by the safety-based exception is not part of the area

covered by the safe work practices de minimis exemption).

5. Distinction Between HUD Programs and Those of Other Federal

Agencies. Several commenters asserted that the rule distinguishes

between HUD-assisted housing and that assisted by other Federal

agencies without any statutory basis and without providing any

justification. The Department's response is that, although the

Secretary is given authority to develop regulations for other agencies

(with respect to project-based assistance and Federally-owned

property), HUD cannot and should not make lead-based paint policy

decisions for other agencies beyond what is set forth in Title X. HUD

does not have the knowledge of other agencies' housing programs that is

necessary to draft detailed lead-based paint regulations for all other

Federal agencies, and achieving consensus among all agencies on such

regulations is unlikely. The sections concerning HUD project-based

assistance and HUD-owned property, therefore, should remain separate

from the sections provided for other agencies. Other Federal agencies

can be expected to develop their own regulations or guidance, using

HUD's regulations as a starting point.

6. Response to Children with Lead Poisoning. The Department's

primary focus in this rule is on prevention of childhood lead

poisoning, not on case management of children who have already been

poisoned. Title X specifically calls for the identification and

correction of hazards in all housing. Nevertheless, HUD feels special

requirements are needed for lead-poisoned children who have already

been poisoned by lead-based paint hazards. HUD cannot ignore the

possible connection between a child's blood lead level and the

condition of the dwelling unit where the child lives, particularly in

view of research on the relation of dust-lead to blood-lead levels (see

Section III.E.15.b of the preamble, below). Therefore, in housing where

the Federal Government maintains a continuing financial or ownership

relationship, requirements were included in the proposed rule to

evaluate and reduce lead-based paint hazards when a child with an

elevated blood lead level (EBL) is identified. Such requirements have

existed in current HUD regulations for many years. In the final rule,

as in the proposed rule, they are included in the subparts pertaining

to project-based rental assistance, disposition of HUD-owned and

mortgagee-in-possession multifamily housing, public housing, and

tenant-based rental assistance.

Commenters addressing EBL-related requirements raised several

different concerns: The measurement standards that trigger

environmental intervention, the terminology used to refer to such a

level, information exchange requirements between housing authorities

and health departments, hazard control requirements for units occupied

by young children with an EBL condition, reoccupancy requirements for

dwelling units that were previously occupied by an EBL child but have

not undergone evaluation or hazard reduction, relocation requirements,

and the potential for discrimination by landlords against families with

young children generally and EBL children in particular.

In the proposed rule, HUD defined ``elevated blood lead level (EBL)

(requiring the evaluation of lead hazards)'' as meaning ``an excessive

absorption of lead that is a confirmed concentration of lead in whole

blood of 20 g/dL (micrograms of lead per deciliter of whole

blood) for a single venous test or of 15-19 g/dL in two

consecutive venous tests taken 3 to 4 months apart.'' One commenter

argued that HUD should not use a standard other than 10 g/dL,

which is the basic CDC level of concern, because it is ``illogical to

take no action when we know a child is poisoned * * * but instead to

wait until the child is more poisoned,'' and because defining an EBL at

a level higher than that known to cause adverse effects will create

potential liability for public housing authorities and assisted owners.

HUD has consulted again with CDC and has concluded, as it did prior

to issuance of the proposed rule, that CDC did not and does not intend

to recommend a full home inspection or assessment in response to blood

lead levels below 15 g/dL. CDC advises that a blood lead level

of 10-14 g/dL should trigger monitoring, certain parental

actions, and perhaps community-wide education, but not hazard control

in an individual child's home. CDC recommends follow-up blood lead

testing of such children in about 3 months, the provision of

information to parents on lead hazards, nutrition and housekeeping if

appropriate, and the taking of an environmental history to try to

identify

[[Page 50157]]

an obvious source of lead exposure (CDC 1997).

EPA noted that it is confusing to define the term ``elevated blood

lead level'' or ``EBL'' differently than normal usage. The agency

pointed out that CDC, in their 1997 screening guidelines, uses the term

to refer 10 g/dL or greater and that most public health

agencies and others in the field of lead poisoning prevention do the

same. HUD agrees that this is potentially confusing and has therefore

substituted in the final rule the term ``environmental intervention

blood lead level'' to replace ``elevated blood lead level'' or ``EBL''

when the latter terms refer to the blood lead level requiring

evaluation and hazard reduction of the child's home.

One State public health department urged HUD to modify the rule's

standards for determining when environmental intervention is needed.

Requiring tests showing two blood lead levels of 15-19 micrograms per

deciliter in consecutive tests three to four months apart is

``problematic,'' the commenter said, because many children do not get

follow-up tests at the required three-four month interval, but rather

more frequently--or less. Two tests showing levels of 15 or higher,

whether or not consecutive, and whether or not at a fixed time

interval, should be adequate to identify the child, and it is important

that the rule not define the test intervals too strictly. It is not in

the best interests of the child to recognize test results that come in

only at precise intervals, the commenter said. A child may have two

tests of 15-19 g/dL, but because of seasonal variations in

lead exposure, the high-level results may not be consecutive. At least

two commenters recommended that this standard should be consistent with

CDC guidance.

HUD agrees. In the final rule, the Department has defined

environmental intervention blood lead level to conform to the new

guidelines by CDC issued in 1997 (CDC 1997b). The revised definition is

``a confirmed concentration of lead in whole blood equal to or greater

than 20 g/dL (micrograms of lead per deciliter) for a single

test or of 15-19 g/dL in two tests taken at least 3 months

apart.'' This revision removes the word, ``consecutive,'' and allows

for nonconsecutive readings that are more than 3 months apart. The

final rule has also removed the requirement that blood lead levels be

determined only by venous blood specimens. This decision is best left

to the child's health care provider, and may be affected by

technological advances. HUD expects housing agencies, grantees,

property owners, and other parties to which this rule applies to rely

on medical health care providers where judgment is required in

interpreting this definition.

Another issue is how best to make housing agencies aware of when

there is a child with an environmental intervention blood lead level

living in a dwelling unit under tenant-based rental assistance or under

another program to which the requirements of subpart M of this rule

apply. The proposed rule required that, to the extent practicable, the

housing agency or other administering agency would attempt to obtain

annually from the State or local health department the names and

addresses of children less than age 6 identified with environmental

intervention blood lead levels. The housing agency was then required to

match this information with the names and addresses of families

receiving Federal assistance. If a match occurred, the agency was to

require a risk assessment and interim controls in the child's home.

These requirements are similar to those currently in HUD regulations

pertaining to tenant-based rental assistance. They were issued 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, May 13, 1994). The intent of this

requirement is to ensure that families with young children that receive

tenant-based rental assistance are obtaining housing free of lead-based

paint hazards. At the same time, the CDC is urging local public health

departments to provide environmental intervention blood lead level-

related information to housing agencies.

A few commenters indicated that they had encountered difficulty in

securing the cooperation of health authorities in making these records

available because of the authorities' concerns about the privacy of

medical information. While these access problems can be overcome, one

commenter said, by securing a release signed by the child's parent or

guardian, there are other concerns besides the question of invasion of

privacy. If the agency administering the tenant-based assistance

program has information concerning the environmental intervention blood

lead level status of a family's children and the information is

disclosed to potential landlords, the information ``becomes a barrier

for the family in its housing search,'' because some landlords may

illegally refuse to rent to the family.

Several other commenters expressed concern about the potential for

housing discrimination against families with children in general, and

those with children with identified environmental intervention blood

lead levels in particular. These comments ranged from suggestions to

penalize the landlords involved to indications that, in the absence of

funding assistance, it was unfair to ``penalize (owners) for

participating in the Section 8 (Voucher and Certificate) Program in a

way not required of owners in the private market.'' (Emphasis in

original.) In response, HUD believes that the environmental

intervention blood lead level requirements in this rule are not in fact

fundamentally different than those covering private-sector owners who

do not receive subsidies. Local ordinances often permit health or

housing departments to order lead hazard control work in any home where

an environmental intervention blood lead level child is identified. For

an explanation of the antidiscrimination provisions of the Fair Housing

Act, see Section IV.D.7 of this preamble.

The Department has concluded that it is very important that local

housing agencies know when there is a child with an environmental

intervention blood lead level residing in an assisted unit and that

owners comply with requirements designed to make the units free of

lead-based paint hazards. It is well known that, while local health

departments are able to identify poisoned children, they often do not

have the resources to correct the cause.

HUD is making, therefore, the following changes to the requirements

pertaining to exchange of information on environmental intervention

blood lead level conditions:

(1) The housing agency or other local agency administering tenant-

based rental assistance must attempt at least quarterly (instead of

annually as in the proposed rule) to obtain from the State or local

public health department, or the Indian Health Service as applicable,

the names and/or addresses of children of less than 6 years of age with

environmental intervention blood lead levels. This change is being made

to assure that poisoned children will receive help on a more timely

basis. The Department encourages health departments and housing

agencies to voluntarily enter into agreements to exchange information

more frequently, e.g., monthly, especially in jurisdictions in which

childhood lead poisoning is a frequent occurrence in housing occupied

by families receiving tenant-based rental assistance.

(2) Also on a quarterly basis, the housing agency or other local

agency administering the tenant-based rental assistance must provide

health departments with addresses of assisted units (as well as attempt

to obtain

[[Page 50158]]

addresses of environmental intervention blood lead level children from

the health department), except that such a report to the health

department is not required if the health department states that it does

not wish to receive it.

(3) The address match may be done by either the housing or the

health agency. HUD's intent is to encourage workable cooperative

arrangements between the two types of agencies for the purpose of

matching environmental intervention blood lead level and housing

assistance information on a timely basis.

With regard to the evaluation and hazard reduction that must be

done if a child with an environmental intervention blood lead level is

found to be residing in a HUD-assisted or HUD-owned unit, the final

rule sets one uniform requirement for all programs: risk assessment and

interim controls, followed by ongoing lead-based paint maintenance. One

commenter complained that the proposed rule failed to require anything

beyond interim controls--a standard, the commenter said, that is ``too

low and ineffective in the face of a poisoned child.'' Current

information shows that interim controls are as effective as abatement

methods in the short term and will continue to provide adequate

protection if continuing maintenance standards are met (National Center

1998). In the final rule, ongoing lead-based paint maintenance is

required in all HUD housing programs for which there is also a

requirement that interim controls be conducted in response to a case of

a child with an environmental intervention blood lead level. To ensure

that these requirements are not avoided, the rule states that the

requirements apply regardless of whether the child with the

environmental intervention blood lead level is or is not still living

in the assisted unit. Furthermore, it is HUD's intent that the

requirements apply to the unit even if no child of less than six years

of age resides in the unit, because the requirements were triggered

when a child was in residence. Also, if a public health department

performs the evaluation of the dwelling unit or, after the hazard

reduction work is performed, certifies the unit to be lead safe, it is

not necessary for the housing agency or other designated party to

perform those functions. Finally, in the case of housing to which

subpart M (tenant-based rental assistance) applies, if the hazard

reduction is not performed, the unit does not meet Housing Quality

Standards.

Some local housing agencies have asked for guidance on what their

response should be to information on a child's blood lead level if the

information is brought to the agency by a party other than a medical

health care provider. In response, the Department is including a

provision requiring verification of such data with the public health

department or other medical health care provider. If it is verified

that a child has an environmental intervention blood lead level, the

agency, owner, or HUD (as the case may be) must complete a risk

assessment and conduct interim controls of identified hazards.

7. Fair Housing Requirements. Several commenters expressed concern

about the potential for housing discrimination against families with

children in general, and those with children with environmental

intervention blood lead levels in particular. Therefore HUD is

providing the following discussion of the application of the Fair

Housing Act and other laws pertaining to persons with disabilities to

lead-based paint issues.

The Fair Housing Act prohibits discrimination in housing based on

race, color, national origin, religion, sex, disability, and familial

status. Familial status, for purposes of the Fair Housing Act, includes

children under 18 (regardless of age or number), pregnant women, and

people seeking custody of children under 18. Only providers of housing

that meets the specific definition of housing for older persons may

refuse to rent to families with children. Children with elevated blood

lead levels and persons with Multiple Chemical Sensitivity (MCS) may

fall under the definition of persons with disabilities. Among the

actions prohibited under the Fair Housing Act are any action which

differentiates on a prohibited basis for any of the following: Refusal

to rent or sell housing; refusal to negotiate for housing; making a

dwelling unavailable; denying a dwelling; providing different housing

services or facilities; falsely stating that housing is not available

for inspection, sale, or rental; refusing to make a mortgage loan;

imposing different terms or conditions on a loan; setting different

terms, conditions, or privileges for sale or rental of a dwelling;

segregating a portion of the population into special buildings or

areas; maintaining different lease conditions; and advertising or

making any statement that indicates a limitation or preference based on

any prohibited basis of the Fair Housing Act.

Based on this law, it is illegal for owners of housing to

discriminate against families with children, or EBL children, even if

the unit is known to have lead-based paint hazards. The prohibitions of

the Fair Housing Act would further make it inadvisable to ask questions

about EBL status, pregnancy, or intentions to become pregnant.

Restrictive covenants against children, including EBL children, are

also illegal. Therefore, no renter or buyer may be asked to sign a

statement that a child, or EBL child, is not expected to reside in the

dwelling. Owners of rental housing may eliminate lead-based paint

hazards in a percentage of units and hold those units available for

families with children and affirmatively market them to appropriate

families. An owner may also tell families of the danger of moving into

a unit which has not been treated and recommend an alternative

comparable unit. In no case may an owner refuse to allow a family to

occupy the unit, however, because of the presence of a child or require

that a family move because lead is found. Laws against discrimination

will be enforced by HUD.

Title II of the Americans With Disabilities Act (ADA) establishes a

clear and comprehensive prohibition against discrimination on the basis

of disability in State and local government services. Section 504 of

the Rehabilitation Act of 1973 provides for nondiscrimination against

persons with disabilities in Federally-assisted housing. Both laws

define a person with a disability as any person who has a physical or

mental impairment that substantially limits one or more major life

activities, has a record of an impairment, or is regarded by others as

having such an impairment. Under both laws, EBL children and persons

with MCS may fall under the definition of persons with disabilities.

Among the actions prohibited under Title II of the ADA and Section 504

are those which discriminate, on the basis of disabilities, in

Federally-assisted programs, services, and activities. Such actions

include a refusal to (1) allow participation in a program, service, or

activity; (2) provide programs, services and activities in an

integrated setting, unless separate or different measures are necessary

to ensure equal opportunity; (3) eliminate unnecessary eligibility

standards or rules that deny an equal opportunity to enjoy a program,

service or activity unless ``necessary'' for the provisions of the

program, service or activity; (4) make reasonable modifications in

policies, practices, and procedures that deny equal access, unless a

fundamental alteration in the program would result; (5) make reasonable

accommodations, unless an undue burden or fundamental alteration would

result, e.g., furnish auxiliary aids and services when necessary to

ensure effective

[[Page 50159]]

communication (e.g., interpreters, or accessible formats, such as

braille, large print, or audio cassette) and/or provide notice to and

relocate residents with MCS prior to removing lead-based paint hazards

with harmful toxic chemicals; and (6) operate programs so that, when

viewed in their entirety, they are readily accessible to, and usable

by, individuals with disabilities. A covered housing provider must not

impose special charges to pay for measures necessary to ensure

nondiscriminatory treatments, such as relocation expenses when

necessary to remove lead-based paint hazards, or making modifications

to provide accessibility. Finally, it is unlawful under these laws for

a covered housing provider to make inquiries into the nature and

severity of a person's disability, although that information may be

volunteered when a reasonable accommodation is requested.

8. Qualification Requirements. The proposed rule required that most

lead-based paint inspections, risk assessments and abatements be

conducted by individuals or firms that are certified in accordance with

national EPA requirements for lead-based paint activities developed

pursuant to sections 402 and 404 of the Toxic Substances Control Act

(TSCA). EPA published a final rule on August 29, 1996 that takes full

effect on August 29, 1999. After that time, all lead-based paint

inspections, risk assessments, and abatements nationwide will have to

be conducted in accordance with the EPA work practices standards at 40

CFR 745.227 or State or tribal standards that have been authorized by

EPA under procedures set forth at 40 CFR part 745, subpart Q.

Recognizing that there might be temporary limitations on the supply of

certified personnel, HUD proposed to provide for the possibility of

temporary qualifications.

The proposed rule included two apparent exceptions to this general

certification requirement. Public and Indian housing agencies (``HAs'')

conducting dust and soil testing for public and Indian housing were not

required to be certified in accordance with the EPA requirements. The

Department pointed out that HAs were required to complete lead-based

paint inspections by December 6, 1994, and that many HAs have already

taken the initiative to conduct risk assessments in housing projects.

Further, HUD did not extend the certification requirement to dust

testing conducted by HAs for the Section 8 tenant-based rental

assistance program. The Department, however, did require that a risk

assessment conducted in response to an identified environmental

intervention blood lead level child be conducted by a certified risk

assessor.

Certification requirements in the proposed rule were somewhat

different for interim controls than for abatement. Recognizing that the

EPA regulations do not cover interim controls, HUD proposed that all

workers performing interim controls be trained in accordance with the

basic Occupational Safety and Health Administration (OSHA) hazard

communication standard at 29 CFR 1926.59 and supervised by a certified

abatement supervisor.

Comments on the qualifications requirements dealt with five issues:

(1) Whether housing agency personnel had to be certified to perform

dust and soil testing; (2) the availability of qualified personnel and

firms, and temporary qualifications in case of an inadequate supply of

certified personnel; (3) qualification requirements for interim

controls; (4) the independence of the clearance examiner; and (5) the

authority of a trained technician to perform clearance examinations.

EPA objected to the exemption of public and Indian housing

authorities from certification requirements related to dust and soil

testing. EPA did not accept HUD's rationale for suggesting that

noncertified personnel could perform lead-based-paint-related functions

for public and Indian housing agencies, other than under emergency

circumstances. On the other hand, another commenter said he was

``pleased'' that dust testing would be permitted in that program by

non-licensed Housing Quality Standards (HQS) inspectors trained in

lead-hazard evaluation. The commenter recommended that ``non-licensed,

but trained'' rehabilitation inspectors similarly be allowed to

accomplish clearance testing in the funded rehabilitation programs. A

public interest commenter remarked that ``HUD should begin the process

of educating these workers at once, so that a qualified work force is

available when the requirements go into effect.''

A local funded agency indicated that its State law would not allow

Section 8 housing inspectors to perform inspections requiring dust

wipes, and the agency went on to say that licensure for inspectors

costs $250, renewable every two years, and that risk assessment

training ran to $300 per person. Costs to housing authorities, and to

landlords, for importing licensed personnel to perform inspections and

assessments were regarded as prohibitive by the commenter.

The Department has decided to require in the final rule that dust

and soil testing in public housing be conducted by personnel certified

in accordance with an EPA-authorized State or tribal program or EPA

regulations, a provision that is also in accordance with many State

laws. Also, dust testing in housing assisted through tenant-based

rental assistance will not be required at the evaluation stage, so the

qualification issue for that function is no longer relevant; but

clearance of the dwelling unit (or, in some cases, only the worksite)

will be required if paint stabilization, interim controls or abatement

is required. See the discussion below of the authority of trained

technicians to perform clearance examinations.

There was much concern among commenters about the availability of a

qualified (and affordable) work force of persons certified (or

otherwise adequately trained) to perform the necessary work called for

in the rule. Rural housing suppliers claimed such trained people would

have to be imported from far away--and at premium rates. There were

also calls for reciprocity for State-approved training programs until

the EPA-approved programs are implemented.

HUD expects that most States will have EPA authorized certification

programs by the effective date of this rule. Those that do not will be

covered by the EPA certification program directly. After August 29,

1999, inspections, risk assessments and abatements must be done in

accordance with the standards of EPA or an authorized State or tribal

program. While this fact does not in itself eliminate the possibility

that there will be shortages in the supply of certified personnel for

inspections, risk assessments and abatements in some parts of the

country, it increases the likelihood that the certification mechanisms

will be in place in most of the nation when this rule becomes

effective. At the time of this writing, 37 States have already enacted

lead-based paint hazard control laws. In the final rule, the Department

has made one change to the qualifications requirements that may result

in increased availability of persons qualified to perform clearances.

See the discussion below of the authority of technicians to perform

clearance examinations.

The Department intends to monitor the availability of qualified

personnel. One source of information is likely to be the ``Lead

Listing,'' a nationwide listing of inspectors and risk assessors

developed by the National Lead Assessment and Abatement Council (NLAC)

with HUD assistance. The

[[Page 50160]]

``Lead Listing'' can be accessed by calling 1-888-LEADLIST (this is a

toll-free number) or can be found on the Internet at

www.leadlisting.org. HUD notes the constructive suggestion by one

commenter that such monitoring should be done in cooperation with the

States, as is being done with the development and maintenance of the

Lead Listing. HUD would also expect to coordinate with EPA in the

development of such information and in determining whether any further

Federal response is needed.

One national organization questioned the requirement that workers

performing ``interim control treatments'' be supervised by a certified

abatement supervisor. Arguing that the definition of ``interim

controls'' was too broad, the commenter recommended breaking the

definition down so that ``painting, maintenance and similar routine

tasks'' could be performed without a certified supervisor. Such a

change, the commenter said, would be in accord with Congress' intent

that certification requirements not be imposed on interim control

workers, and the change would decrease routine property maintenance

costs. A similar complaint was directed at the requirement that the

appropriate worksite preparation be determined by a certified risk

assessor, abatement supervisor or planner/designer. The commenter

feared that the rule could be construed as requiring professional

worksite design for ``mere paint repair work and for such basic interim

control tasks as rehanging of doors. . .'' and asked that the rule be

clarified to eliminate the worksite preparation requirement for interim

control work.

Noting that the Task Force had recommended a one-day training

course for maintenance supervisors, one commenter advocated HUD/EPA

cooperation in developing a short course geared for maintenance workers

that is inexpensive, requires one day or less to complete, and is

frequently offered. Other commenters endorsed the short training course

idea. The idea was a popular one, not only among cost-conscious funded

agencies, but with public interest organizations as well.

A national environmental group disagreed with the emphasis on

limiting the occasions for use of expert personnel. All hazard control

activities, including paint repairs, should be conducted by trained

personnel, the organization declared. A landlord who has permitted

paint to become deteriorated to the point that it presents a lead

hazard is ``unlikely to have the skills or inclination to perform a

paint repair in a manner that does not increase exposure,'' the group

said.

HUD agrees that persons performing interim controls should be

prepared to protect themselves and the occupants from exposure to lead,

should know how to protect interior and exterior environments from

contamination and how to clean up the worksite, and should understand

the importance of an independent clearance examination. In the final

rule, HUD is requiring that persons performing interim controls,

including paint stabilization, be trained in lead hazards in accordance

with OSHA regulations at 29 CFR 1926.59 and either be supervised by a

certified abatement supervisor (the requirement of the proposed rule)

or successfully complete one of the following training courses: (1) An

accredited abatement supervisor course; (2) an accredited lead-based

paint worker course; (3) the Lead-Based Paint Maintenance Training

Program, developed by the National Environmental Training Association

for EPA and HUD; (4) the Remodeler's and Renovator's Lead-Based Paint

Training Program, prepared by HUD and the National Association of the

Remodeling Industry (NARI); or (5) another course approved for this

purpose by HUD after consultation with EPA. HUD intends that any person

performing hands-on, interim controls work on the worksite in

compliance with the final rule must have satisfied one of the optional

requirements. With regard to the OSHA training requirements, OSHA

regulations at 29 CFR 1926.62 require that workers exposed to airborne

lead below the OSHA action level of 30 g/cu.m. be trained

under the hazard communication construction standard, which is at 29

CFR 1926.59. If airborne lead is at or above the action level, OSHA

requires a more complete training program. Workers performing interim

controls of lead-based paint hazards are not expected to be exposed to

airborne lead above 30 g/cu.m. Therefore the final rule states

that the required training must be in accordance with 29 CFR 1926.59.

A national housing organization questioned the language barring a

clearance examiner from being ``affiliated with, paid, employed or

otherwise compensated by the entity performing the hazard reduction and

cleanup.'' The provision assumes, the commenter said, that the hazard

reduction work has been performed by an independent contractor. In the

case of paint stabilization and interim controls, this assumption will

often be incorrect. Where only paint stabilization and simple interim

controls are required, it was argued, the rule should permit owners and

their employees to perform the work themselves. The ``independence''

provision would make this impossible. The commenter recommended, first,

eliminating the clearance testing requirement for hazard reduction work

involving only ``basic interim controls.'' A second solution would be

to remove from the quoted provision the words ``paid'' and ``or

otherwise compensated'', so that clearance testing by employees and

affiliates of a contractor would be prohibited, but the owner could

retain an independent, certified risk assessor to perform the clearance

testing work.

HUD agrees that a property owner or manager should be able to

employ both hazard reduction and clearance personnel. The final rule

requires that clearance examinations and hazard reduction activities be

conducted by entities that are independent of each other unless the

owner or designated party uses qualified in-house employees to conduct

clearance. The final rule, however, does not permit the same individual

employee to conduct both hazard reduction and clearance, due to the

clear conflict of interest this would pose.

As mentioned, HUD has made a change in the final rule that may

increase the availability of persons qualified to perform clearance

examinations, and thus may reduce the cost. The proposed rule required

that clearances be performed by either a certified risk assessor or a

certified lead-based paint inspector. One group of commenters urged

that a technician with less training than a risk assessor or inspector

be authorized to perform clearances in situations where interim

controls of lead-based paint hazards or ongoing lead-based paint

maintenance has been conducted. These commenters argued that the skills

needed for the clearance function are modest compared to those required

for lead-based paint inspections or risk assessments and, further, that

the speed and affordability of clearance is of critical importance to

the practical workability of the system of requirements to be set forth

in the rule.

In the conference report on the VA-HUD-Independent Agencies

Appropriations Act for FY 1999, the Congress urged EPA ``to develop a

relevant one-day sampling technician training course and to encourage

the recognition of this discipline.'' As of this writing, it is HUD's

understanding that EPA plans to develop such a course and that an

important purpose of the course will be to train people to perform

clearance examinations. Therefore, anticipating that trained clearance

technicians may be available, HUD is

[[Page 50161]]

providing in the final rule two ways they could perform clearances

following interim controls or maintenance: first, as a technician who

is uncertified or unlicensed and whose work must be approved in writing

by a certified risk assessor or lead-based paint inspector; or, second,

as a technician who is certified or licensed to perform clearance

examinations without the approval of a risk assessor or inspector.

Uncertified or unlicensed clearance technicians must have successfully

completed a training course on clearance examinations (or similar

title) that is developed or accepted by EPA or by a State or tribal

program authorized by EPA pursuant to 40 CFR part 745, subpart Q (the

EPA regulations implementing TSCA section 404). The course must be

given by a training provider accredited by a State, Indian tribe or the

EPA for training in lead-based paint inspection or risk assessment. HUD

assumes that certified or licensed clearance technicians would also be

required to complete such training. Certification or licensing of

clearance technicians must be by a State or Indian tribe or EPA.

With regard to the training course taken by an unlicensed or

uncertified clearance technician, there are several possible

arrangements that are acceptable to HUD under this rule. The course can

be developed by EPA, or it can be developed by a State or Indian tribe

with a program authorized by EPA pursuant to TSCA section 404. A State

or Indian tribe may adopt or accept a course prepared by another EPA

authorized State or tribe. While the training provider from whom the

course is taken must be accredited by EPA or an EPA-authorized State or

tribal program, it is not necessary from HUD's point of view that the

technician be trained within the State or Indian nation where the

clearance is being performed or by a training provider accredited by

that State or tribe. The ultimate responsibility for quality control

rests with the certified lead-based paint inspector or risk assessor

who approves the work of the technician and signs the clearance report.

Under this policy, an unlicensed or uncertified but properly

trained clearance technician could perform a clearance examination on

site, prepare the report, and send the report (by e-mail, fax, or other

method) to a certified risk assessor or certified lead-based paint

inspector, who may be located in another area. The risk assessor or

inspector could review and sign the report and forward it to the

client, taking responsibility for the quality of the clearance

examination and report. The Department assumes that the risk assessor

or lead-based paint inspector would require the technician to work as

an apprentice until the inspector or assessor is satisfied that the

technician's work is of satisfactory quality, but HUD leaves that

process and decision to the risk assessor or inspector. In the rule,

HUD places no restrictions on the scope or scale of clearance

examinations that could be performed in this manner.

HUD is setting a limitation, however, on the authority of a

certified or licensed technician who is taking full responsibility for

the clearance examination without written approval of a risk assessor

or lead-based paint inspector. In this case, the authori

This text is long and has been trimmed here. Open the source document for the complete record.