training, EPA encourages training providers to make use of such options
where appropriate to increase access to training and make it more
affordable. Web-based training courses are considered separate courses
and a separate application fee is required for each. This is because
EPA must review not only the content of the course, but the mechanics
of the delivery of the course.
    EPA's model electronic training courses contain certain basic
administration and delivery requirements. These include assigning a
unique identifier to each student, to allow the training provider to
track student course progress and completion. In addition, there are
knowledge checks for each chapter, which must be completed before the
student can go on to the next chapter, and a final test for the
electronic learning portion which consists of at least 20 questions.
Finally, students must be able to save or print an uneditable copy of a
record showing completion of the electronic learning portion of the
course. Under this proposal, these requirements would be explicitly
incorporated into 40 CFR 745.225 to ensure that all training providers
wishing to use electronic learning for the classroom portions of lead-
based paint courses are aware of these requirements and plan their
course development accordingly. EPA requests comment on the specifics
of these requirements, such as whether a course test of 20 questions is
sufficient and whether a student should be required to score at least
80 percent on the course test in order to pass the classroom portion of
the renovator course. EPA also requests comment on whether a final test
for the electronic portion of the course is necessary, given that
trainees must pass a hands-on skills assessment and the course test in
order to receive a course completion certificate. EPA also requests
comment on whether other requirements should likewise be incorporated
into the regulations.
    EPA is requesting comment on whether training providers should be
allowed to provide a combined Abatement Worker/Renovator refresher
course or a combined Abatement Supervisor/Renovator refresher course or
both. After the RRP rule was promulgated, EPA received input from the
regulated community and others that indicates that many abatement
contractors are likely to also become certified renovation firms. If
this is the case, it would be advantageous for such firms to be able to
send their employees to combined refreshers so that the employees would
more readily be able to keep up their dual certifications. EPA requests
comment on the likelihood that this will be the case, and, if combined
refreshers are desirable, whether the different certification time
periods for individual abatement certification (3 years) and individual
renovator certification (5 years) should be harmonized and, if so, how.
    Finally, EPA is proposing to require training providers to maintain
renovator and dust sampling technician training records for a period of
5 years. Under the existing regulations, training providers must keep
training records for 3 years and 6 months. This length of time was
chosen because of the length of individual certification periods for
lead-based paint activities, which can be as long as 3 years and 6
months including interim certification.

However, the renovator and dust sampling technician certification
periods are 5 years, with no interim certification. Therefore, in order
to ensure that the training records from the previous training course
are available for certified renovators and dust sampling technicians
taking refresher courses, the recordkeeping period applicable to these
disciplines would be increased to 5 years.

D. State, Territorial, and Tribal Program Authorization

    Interested States, Territories, and Indian Tribes may apply for,
and receive authorization to, administer and enforce all of the
elements of the RRP program. The regulations for the State and Tribal
program requirements are found in 40 CFR 745.326. Under this proposed
rule EPA is clarifying several parts of this section. First, the Agency
is amending the regulations to make it clear that State and Tribal
programs do not need to include requirements for the accreditation of
dust sampling technicians if they are going to require dust sampling to
be performed by a certified inspector or risk assessor. Second, the
Agency is proposing to amend the regulations to reflect that both
individuals and firms must receive certification. Finally, EPA is
proposing to require State and Tribal renovation programs to include
procedures and requirements for on-the-job training of renovation
workers that do not receive accredited training.
    Strong enforcement of the lead-based paint regulations by
authorized State and Tribal programs is critical to ensuring the safety
of the occupants of target housing and child occupied facilities
undergoing lead abatement, renovation, repair or painting. The State
and Tribal program authorization requirements at 40 CFR 745.327 include
provisions for approval of compliance and enforcement programs.
Specifically, State and Tribal programs must have adequate compliance
monitoring and enforcement authorities. Section 745.327(b)(3)(ii)
requires ``[a]dministrative or civil actions including penalty
authority * * *;'' but the rule does not establish a minimum penalty
level or other requirements for enforcement authorities comparable to
EPA authorities under TSCA. To remedy this, EPA is proposing that in
order to be authorized for any of the lead certification programs,
State or Tribal programs demonstrate that: (1) The State or Tribe be
able to sue to obtain penalties, (2) civil and criminal penalties are
assessable for each instance of violation, (3) if violations are
continuous, the penalties are assessable up to the maximum amount for
each day of violation, and (4) the burden of proof and degree of
knowledge or intent of the respondent is no greater than it is for EPA
under TSCA. EPA is also requesting comment on whether a minimum penalty
level for civil and criminal fines ought to be established, and, if so,
what the minimum level for each should be. States and Tribes may be
authorized to administer a number of EPA programs; some of these
programs have minimum penalty requirements for State and Tribal
programs and some do not. For example, under the Clean Air Act
implementing regulations at 40 CFR 70.11(a)(3) and the Resource
Conservation and Recovery Act implementing regulations at 40 CFR
271.16(a)(3), State programs must have the authority to assess civil
and criminal fines of at least $10,000 per day per violation. Other
programs have established lower minimum penalty requirements. The
implementing regulations for the Safe Drinking Water Act require State
programs to have the authority to impose a penalty of at least $1,000
per day per violation on public water systems serving a population of
more than 10,000 individuals. Some EPA programs have set no minimum
penalty authority requirements for States and Tribes; these programs
include the Asbestos Hazard Emergency Response Act program and the
State pesticide applicator certification program under the Federal
Insecticide, Fungicide, and Rodenticide Act. EPA is proposing that in
order to become authorized, State and Tribal lead-based paint programs
must have minimum civil and criminal penalty authorities of at least
$10,000 per violation per day. EPA requests comment on whether
proposing minimum levels for the maximum civil penalty and criminal
fine recoverable under a State or Tribal program is necessary to ensure
that enforcement is adequate and, if so, whether $10,000 should be the
minimum level. EPA also requests comment on whether such a minimum
requirement would appropriately promote consistency across authorized
State and Tribal programs. In addition, EPA is requesting comment on
whether these minimum levels should also be adjusted periodically to
account for inflation, as required for Federal penalties under Federal
Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note,
as amended by the Debt Collection Improvement Act of 1996, 31 U.S.C.
3701 note. One way of doing this would be to require State and Tribal
programs to have minimum civil penalty authority of 40% of the Federal
maximum penalty authority under TSCA section 16, as adjusted for
inflation, at the time the State or Tribe is authorized. However, this
approach would result in different requirements for States and Tribes
depending upon when they apply for authorization. Another way of
accomplishing inflation adjustments would be to require State and
Tribal authorized programs to have their own established mechanism for
adjusting penalties to account for inflation. By requiring all
authorized programs to make adjustments for inflation, this approach
might be more likely to promote enforcement consistency across
programs. Also in the interests of promoting national enforcement
consistency, EPA requests comment on what criteria States or Tribes
should consider, such as the size of a respondent's business, ability
to remain in business, enforcement history, or risk posed by the
respondent's actions, in establishing or mitigating penalties.

E. Other Proposed Amendments to the Final RRP Rule

    1. Containment. EPA is proposing to be more specific about the
vertical containment requirements for exterior projects. Under this
proposal, the rule would specifically state that vertical containment
is required for exterior renovation projects that are covered by the
rule and that affect painted surfaces within 10 feet of the property
line. In such cases, vertical containment is necessary to ensure that
adjacent buildings or properties are not contaminated by leaded dust or
debris generated by the renovation. The rule would also note that
vertical containment may be required in other situations, such as windy
conditions, to prevent contamination of other buildings, other areas of
the property, or adjacent buildings or properties. Finally, to clarify
what is meant by the term ``containment,'' this proposal would add a
definition of the term that is based on the definition of ``Worksite
preparation level'' from the HUD Guidelines. The definition includes
additional information on what constitutes vertical containment.
    2. Prohibited or restricted practices. EPA is proposing to clarify
that the prohibitions and restrictions on work practices in 40 CFR
745.85(a)(3), e.g., the prohibition on open flame burning or torching,
apply to all painted surfaces, not just surfaces where the presence of
lead-based paint has been confirmed. The term ``lead-based paint'' was
incorrectly and inadvertently used in this subsection, making it
inconsistent with the rest of the RRP

rule, which applies in the presence of known lead-based paint as well
as paint that has not been tested for lead content. This proposal would
replace the term ``lead-based paint'' with ``painted surfaces'' in this
subsection. Of course, if the painted surface has been tested and found
to be free of lead-based paint, the prohibitions and restrictions on
work practices in the final RRP rule do not apply. In addition, EPA
wishes to clarify that the restriction on the use of machines that
remove paint through high speed operation applies where painted
surfaces are being disturbed by such machines. The restriction is not
limited to situations where all of the paint is removed by such
machines. Finally, EPA has received several requests for clarification
on what is meant by HEPA exhaust control. In order to better express
what is required when machines designed to remove paint through high
speed operation are used, EPA is using terminology from the
Occupational Safety and Health Administration's Technical Manual (Ref.
25). The use of shrouded tools to remove lead-based paint is discussed
in Chapter 3 of Section V, entitled ``Controlling Lead Exposures in the
Construction Industry: Engineering and Work Practice Controls.''
Therefore, this proposal would amend 40 CFR 745.85(a)(3)(ii) to read,
``The use of machines designed to remove paint through high speed
operation such as sanding, grinding, power planing, needle gun,
abrasive blasting, or sandblasting, is prohibited on painted surfaces
unless such machines are used shrouded and equipped with a HEPA vacuum
attachment to collect dust and debris at the point of generation.''
    3. HEPA vacuums. EPA is proposing to clarify that vacuums
qualifying as HEPA vacuums for the purposes of this rule must be
operated and maintained in accordance with the manufacturer's
instructions in order to continue to qualify as HEPA vacuums. This
includes following the manufacturer's filter change interval
recommendations. EPA would also like to clarify that the standard for
HEPA filters, that they be capable of capturing particles of 0.3
microns with 99.97% efficiency, means that the filters must have a
Minimum Efficiency Reporting Value (MERV) of 17 or greater (Ref. 26).
EPA recommends that renovation firms have information from the
manufacturer that the particular model of vacuum that the renovation
firm intends to use, or the vacuum's HEPA filter, has been tested in
accordance with an applicable test method, such as ASTM F1471-09,
``Standard Test Method for Air Cleaning Performance of a High-
Efficiency Particulate Air-Filter System,'' and has been determined to
meet this standard (Ref. 27).
    4. On-the-job training. EPA is proposing to clarify that the RRP
rule requires certified renovators to train other renovation workers in
only the work practices required by the RRP rule that the workers will
be using in performing their assigned tasks. EPA did not intend to
require training in any other subjects, such as how to paint or how to
connect pipes. Therefore, EPA is proposing to amend 40 CFR 745.90(b)(2)
and (b)(4) to refer specifically to the work practice requirements in
40 CFR 745.85(a).
    5. Grandfathering. Under the final RRP rule, individuals who
successfully completed an accredited abatement worker or supervisor
course, and individuals who successfully completed the HUD, EPA, or the
joint EPA/HUD model renovation training courses may take an accredited
refresher renovation training course in lieu of the initial renovation
training to become a certified renovator. In addition, individuals who
have successfully completed an accredited lead-based paint inspector or
risk assessor course, but are not currently certified in the
discipline, may take an accredited refresher dust sampling technician
course in lieu of the initial training to become a certified dust
sampling technician. EPA inadvertently did not address a time limit in
the RRP rule for taking the initial course in lieu of the refresher.
Many of the commenters who addressed the issue of grandfathering
contended that there should be restrictions based on how much time
elapsed since the training was taken. Further, under the lead-based
paint activities regulations at 40 CFR 745.226, EPA allowed a similar
grandfathering provision but only for a limited time. In today's
notice, EPA is proposing to set a limit on when an individual can take
advantage of the grandfathering provision under the RRP rule. Under
today's proposal, renovators and dust sampling technicians who take the
appropriate prerequisite course before July 31, 2011, may take an
accredited refresher training course in lieu of the initial training.
This time frame is consistent with some of the time limitations
suggested in comments on the RRP rule (Ref. 1 at 21724).
    6. Hands-on requirements. 40 CFR 745.225 includes requirements and
procedures that training programs must follow to become accredited in
order to provide instruction in lead-based paint courses. Minimum
requirements for training curricula are found in this section, which
list course topics that must be included in the different training
courses with an indication of the topics that require hands-on
instruction. However, EPA inadvertently omitted indicating which course
topics required hands-on training for the renovator and dust sampling
technician disciplines. Under this proposed rule, EPA identifies in 40
CFR 745.227(d) which topics in the renovator and dust sampling
technician courses require hands-on training. For further
clarification, EPA is proposing to add a sentence to 40 CFR
745.227(e)(2) stating that refresher courses for all disciplines except
project designer must include a hands-on component.
    7. Dust sampling technicians. Individuals who successfully complete
an accredited lead-based paint inspector or risk assessor course, but
are not currently certified in the discipline, may take an accredited
refresher dust sampling technician course in lieu of the initial
training before April 22, 2011 to become a certified dust sampling
technician. Inspectors and risk assessors who are certified by EPA or
an authorized state program are qualified to perform dust sampling as
part of lead hazard screens, risk assessments, or abatements.
Therefore, it would be unnecessary for a certified inspector or risk
assessor to seek certification as a dust sampling technician. The
regulations promulgated in the RRP rule explained who is eligible to
take the refresher dust sampling technician course in lieu of the
initial training. However, the regulations did not explicitly say that
a certified inspector or risk assessor could perform dust sampling. In
order to clarify the intent of the regulation, EPA is proposing to
amend 40 CFR 745.90(a)(3) to specifically state that a certified
inspector or risk assessor may act as a dust sampling technician.
    8. Trainee photographs. Accredited training programs are required
to issue a course completion certificate for each person who passes a
training course. A variety of information is required to be on the
certificate including the name of the course, the name and address of
the student, and contact information for the training program. Course
certificates for renovators or dust sampling technicians must include a
photograph of the student. Since publishing the RRP rule, the Agency
has been asked if there is a minimum size for the photograph.
Currently, there are no size requirements or other specifications for
the photograph on a course completion certificate. Nonetheless, EPA
believes that it would be beneficial to have such requirements to
ensure that the person in the photograph is recognizable. Thus,

EPA is proposing to require that the photographs on course completion
certificates be an accurate and recognizable image of the trainee and
at least one square inch in size. EPA is requesting comments on whether
the image quality requirements should be more specific, e.g., more
quantitative.
    9. Training requirements. As stated previously, 40 CFR 745.225
includes requirements and procedures that training programs must follow
to become accredited in order to provide instruction in renovator, dust
sampling technician, and lead-based paint activities courses. The final
RRP rule amended Section 745.225 to cover persons who provide or wish
to provide renovator or dust sampling technician training for the
purposes of the final RRP rule. There are some instances where the
regulations do not specifically mention the renovator or dust sampling
technician courses even though the regulations apply to those courses.
For example, 40 CFR 745.225(c)(14) explains the requirements which a
training provider must follow when submitting notification to EPA after
the completion of a training. However, the conforming changes, i.e., to
replace ``lead-based paint activities courses'' with ``renovator, dust
sampling technician, and lead-based paint activities courses,'' were
not made to every subparagraph even though all the requirements of that
section apply to those courses. Consequently, EPA is proposing to
clarify that the requirements in 40 CFR 745.225 apply to renovator and
dust sampling technician courses in addition to lead-based paint
activities courses. These changes do not alter the requirements but
merely clarify them.

IV. References

    As indicated under ADDRESSES, a docket has been established for
this rulemaking under docket ID number EPA-HQ-OPPT-2005-0049. The
following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents that are
referenced within the documents that are included in the docket, even
if the referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the
technical contact listed under FOR FURTHER INFORMATION CONTACT.

1. U.S. Environmental Protection Agency (EPA). Lead; Renovation,
Repair, and Painting Program; Final Rule. Federal Register (73 FR
21692, April 22, 2008) (FRL-8355-7).
2. EPA. Air Quality Criteria for Lead (October 2006).
3. EPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase III, Wisconsin Childhood Blood-Lead Study (EPA
747-R-99-002, March 1999).
4. U.S. Department of Health and Human Services (HHS), U.S. Public
Health Service (PHS), Centers for Disease Control and Prevention
(CDC). Children with Elevated Blood Lead Levels Attributed to Home
Renovation and Remodeling Activities--New York, 1993-1994. Morbidity
and Mortality Weekly Report (45(51); 1120-1123, January 3, 1997).
5. HHS, PHS, CDC. Children with Elevated Blood Lead Levels Related
to Home Renovation, Repair, and Painting Activities--New York State,
2006-2007. Morbidity and Mortality Weekly Report (58(03); 55-58,
January 30, 2009).
6. Reissman, Dori B., Thomas D. Matte, Karen L. Gurnite, Rachel B.
Kaufmann, and Jessica Leighton. ``Is Home Renovation or Repair a
Risk Factor for Exposure to Lead Among Children Residing in New York
City?'' Journal of Urban Health: Bulletin of the New York Academy of
Medicine. Vol. 79, No. 4, 502-511, December 2005.
7. Jones, Robert L., David M. Homa, Pamela A. Meyer, Debra J. Brody,
Kathleen L. Caldwell, James L. Pirkle, and Mary Jean Brown. ``Trends
in Blood Lead Levels and Blood Lead Testing Among U.S. Children Aged
1 to 5 Years, 1988-2004.'' Pediatrics: Official Journal of the
American Academy of Pediatrics. Vol. 123, No. 3, pp. e376-e385,
March 2009.
8. EPA. Lead; Requirements for Lead-based Paint Activities; Final
Rule. Federal Register (61 FR 45778), August 29, 1996).
9. EPA. Lead; Identification of Dangerous Levels of Lead; Final
Rule. Federal Register (66 FR 1206, January 5, 2001).
10. EPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase I, Environmental Field Sampling Study (EPA 747-R-
96-007, May 1997).
11. EPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase II, Worker Characterization and Blood-Lead Study
(EPA 747-R-96-006, May 1997).
12. EPA. Exposure Associated With Renovation and Remodeling
Activities: Phase IV, Worker Characterization and Blood-Lead Study
of R&R Workers Who Specialize in Renovation of Old or Historic Homes
(EPA 747-R-99-001, March 1999).
13. EPA. Lead; Renovation, Repair, and Painting Program; Proposed
Rule. Federal Register (71 FR 1588, January 10, 2006) (FRL-8355-7).
14. EPA. Characterization of Dust Lead Levels After Renovation,
Repair, And Painting Activities. (November 13, 2007).
15. U.S. Department of Housing and Urban Development (HUD).
Guidelines for the Evaluation and Control of Lead-Based Paint
Hazards in Housing (June 1995).
16. EPA. Electrostatic Cloth and Wet Cloth Field Study in
Residential Housing (September 2005).
17. Rx Solutions International/BTS Laboratories Inc. Comment on
EPA's Proposed Renovation, Remodeling, and Painting Program. EPA-HQ-
OPPT-2005-0049-0483. May 22, 2006.
18. HUD. Evaluation of the HUD Lead-Based Paint Hazard Control Grant
Program: Final Report. May 1, 2004. http://www.hud.gov/offices/lead/
library/misc/NatEval.pdf.
19. EPA. Residential Sampling for Lead: Protocols for Dust and Soil
Sampling, March 1995 (EPA 747-R-95-001).
20. ASTM International. Standard Practice for Clearance Examinations
Following Lead Hazard Reduction Activities in Single-Family
Dwellings and Child-Occupied Facilities (E 2271-05a).
21. EPA and HUD. Lead; Requirements for Disclosure of Information
Concerning Lead-Based Paint in Housing; Final Rule. Federal Register
(61 FR 9064, March 6, 1996).
22. EPA. National Lead Laboratory Accreditation Program (NLLAP);
Notice of Availability of Revisions to the NLLAP; Notice of
Availability (73 FR 3967 January 23, 2008).
23. EPA. Reviewed Studies Pertaining to HEPA Shroud Effectiveness.
2009.
24. Battelle Memorial Institute. Encapsulation Treatment of Dust
Study Floors. January 2010.
25. U.S. Department of Labor, Occupational Safety and Health
Administration (OSHA). Technical Manual TED 01-00-015 [TED 1-0.15A].
Revised June 24, 2008.
26. American Society of Heating, Refrigerating and Air-Conditioning
Engineers (ASHRAE). Standard 52.2-2007--Method of Testing General
Ventilation Air-Cleaning Devices for Removal Efficiency by Particle
Size (ANSI/ASHRAE Approved) 2007.
27. ASTM International. Standard Test Method for Air Cleaning
Performance of a High-Efficiency Particulate Air-Filter System
(F1471-09).
28. EPA. Office of Pollution Prevention and Toxics (OPPT). Economic
Analysis of the Proposed Dust Testing and Clearance Amendments to
the TSCA Lead Renovation, Repair, and Painting Program for Target
Housing and Child-Occupied Facilities. April 2010.
29. EPA. Proposed Clearance Rule ICR Addendum for the rulemaking
entitled Lead; Clearance and Clearance Testing Requirements for the
Renovation, Repair, and Painting Program; Proposed Rule. April 2010.
30. EPA. Initial Regulatory Flexibility Analysis for the Clearance
and Clearance Testing Requirements for the Lead Renovation, Repair,
and Painting Program; Proposed Rule. April 2010.
31. EPA. Report of the Small Business Advocacy Review Panel on the
Lead-based Paint Certification and Training; Renovation and
Remodeling Requirements. March 3, 2000.
32. EPA. Unfunded Mandates Reform Act Statement; Lead; Clearance and
Clearance Testing Requirements for the Renovation, Repair, and
Painting Program; Proposed Rule. April 2010.

33. ASTM International. Standard Practice for Collection of Settled
Dust Samples Using Wipe Sampling Methods for Subsequent Lead
Determination (E1728-03).
34. ASTM International. Standard Specification for Wipe Sampling
Materials for Lead in Surface Dust (E1792-03).
35. ASTM International. Standard Practice for Record Keeping and
Record Preservation for Lead Hazard Activities (E2239-04).

V. Statutory and Executive Order Reviews

    EPA has prepared an analysis of the potential costs and benefits
associated with this rulemaking. This analysis is contained in the
``Economic Analysis of the Proposed Dust Testing and Clearance
Amendments to the TSCA Lead Renovation, Repair, and Painting Program
for Target Housing and Child-Occupied Facilities'' (Economic Analysis,
Ref. 26), which is available in the docket for this action and is
briefly summarized here, and in more detail later in this Unit.

------------------------------------------------------------------------
           Category                            Description
------------------------------------------------------------------------
Benefits......................  Benefits are not monetized or
                                 quantified, although there may be
                                 benefits through:
                                (1) Information on lead-dust levels
                                 remaining in the renovation work area,
                                 including lead-dust that may have been
                                 generated during the renovation
                                 activity.
                                (2) Changed behavior on the part of
                                 renovation firms, owners, and occupants
                                 which may prevent adverse health
                                 effects attributable to lead exposure
                                 from renovations in pre-1978 buildings.
                                EPA has estimated the size of the
                                 population affected by this rule, but
                                 does not have sufficient information to
                                 estimate the value of information to
                                 consumers about lead-dust risks, or the
                                 decrease in exposure to lead-dust from
                                 renovations in target housing and child-
                                 occupied facilities.
Costs.........................  $272 million annualized (3% discount
                                 rate).
                                $293 million annualized (7% discount
                                 rate).
------------------------------------------------------------------------

A. Executive Order 12866

    Under section 3(f)(1) of Executive Order 12866, entitled
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993), this
action is an ``economically significant regulatory action'' because EPA
estimates that it will have an annual effect on the economy of $100
million or more. Accordingly, this action was submitted to the Office
of Management and Budget (OMB) for review under Executive Order 12866
and any changes made based on OMB recommendations have been documented
in the public docket for this rulemaking as required by section
6(a)(3)(E) of the Executive Order.
    The following is a summary of the Economic Analysis (Ref. 28),
which is available in the docket for this action.
    1. Options evaluated. The Economic Analysis analyzes several
options. In addition to the proposed rule option, the Economic Analysis
includes options with lower and higher thresholds (in terms of the
amount of lead-based paint disturbed) for renovations which require
dust wipe testing or clearance. In the proposed rule, the renovation
events for which clearance is required (use of high speed machines to
remove paint, and the demolition or destructive removal of plaster)
have a threshold of 6 ft\2\ of lead-based paint disturbed. The
thresholds in the proposed rule for the renovation events that require
the use of dust wipe testing without necessarily achieving clearance
vary from 6 to 60 ft\2\, depending on the type of renovation (use of a
heat gun; scraping painted surfaces; removing trim, molding, cabinets,
or other fixtures; etc.). In the low threshold option, the thresholds
are 6 ft\2\ for all of the affected renovations. In the high threshold
option, the thresholds for the events where clearance is required are
60 ft\2\, while the thresholds for the renovations events that require
the use of dust wipe testing without necessarily achieving clearance
vary from 60 to 120 ft\2\, depending on the type of renovation. The
Economic Analysis also includes three options that use the same
threshold sizes as the proposed rule but apply different requirements
to them. There is an option that requires dust wipe testing for all of
the renovation events covered by the proposed rule without requiring
clearance for any of them, as well as an option that requires clearance
for all of these events. Finally, there is an option that applies to
the same dust wipe testing and clearance events and thresholds as the
proposed rule but that requires renovation firms to have the dust wipe
sampling performed by an independent third party.
    2. Number of facilities and renovations. There are approximately
18.7 million renovation events per year covered by EPA's renovation,
repair, and painting program in the 78 million target housing units and
child-occupied facilities. The number of renovations affected by this
proposed rule depends on the option selected. The low threshold option
affects an estimated 1.8 million dust wipe testing only events and
69,000 clearance events per year. The proposed rule is estimated to
affect 1.5 million dust wipe testing only events and 69,000 clearance
events a year. The high threshold option affects an estimated 1.2
million dust wipe testing only events and 58,000 clearance events per
year. The remaining three options (only dust wipe testing is required
for all renovations covered by the proposed rule, clearance is required
for all renovations covered by the proposed rule, and third-party dust
wipe sampling is required for all renovations covered by the proposed
rule) all affect an estimated 1.6 million events per year.
    3. Benefits. The benefits of the rule result from the prevention of
adverse health effects attributable to lead exposure from renovations
in pre-1978 buildings. These health effects include impaired cognitive
function in children and several illnesses in children and adults, such
as increased adverse cardiovascular outcomes (including increased blood
pressure, increased incidence of hypertension, cardiovascular morbidity
and mortality) and decreased kidney function.
    The proposed rule will generate benefits by providing greater
assurance that dust-lead hazards created by renovations are adequately
cleaned up, primarily by requiring renovation firms to provide building
owners and occupants with information on dust lead levels remaining in
the work area after many renovation projects, but also by requiring
renovation firms to demonstrate that they have achieved regulatory
clearance levels after some of the dustiest renovations. These changes
will protect individuals residing in target housing or attending a
child-occupied facility where these renovation events are performed. It
will also protect individuals who move into target housing after such a
renovation is performed, or who visit a friend, relative, or
caregiver's house where such a renovation is performed.

    EPA has estimated the number of individuals residing in target
housing units or attending COFs where renovation events are performed.
The proposed rule will benefit 809,000 children under the age of 6 and
7,547,000 individuals age 6 and older (including 96,000 pregnant women)
per year by minimizing their exposure to lead dust generated by
renovations. The low threshold option would protect 882,000 children
under the age of 6 and 8,193,000 individuals age 6 and older, including
105,000 pregnant women. The high threshold option protects 706,000
children and 6,590,000 individuals age 6 and older, including 83,000
pregnant women. The remaining three alternative options (dust wipe
testing only, clearance only, and third party dust wipe testing) would
affect the same number of individuals as the proposed rule, although
the amount of protection provided to some of those individuals may
differ from the proposed rule.
    4. Costs. Firms performing the renovation events covered by the
proposed rule will incur costs associated with having a third party
perform dust wipe sampling and testing (or with having a firm staff
member trained as a dust sampling technician so that they can take
their own dust wipe samples and send them to a lab). For jobs subject
to the clearance requirements in the proposed rule, firms may incur re-
cleaning costs if dust wipe testing after clean-up yields results that
exceed the clearance standards. Firms will also incur small costs to
provide the dust wipe testing results to owners and occupants of the
target housing units and child-occupied facilities where the
renovations are performed.
    EPA's updated estimate is that the average cost for a renovation
firm to hire a third-party lead evaluation firm to take four dust
samples, send them to a lab for analysis, and provide a short report is
slightly over $260. However, many renovation firms may find it more
cost effective to have a staff member trained and certified as a dust
sampling technician rather than hiring a third party to take the
samples.
    Renovation firms would incur the same dust wipe testing costs for
renovations where achieving clearance is required. If dust levels
exceed the clearance standards after cleaning verification, the
renovation firm will incur additional costs for re-cleaning the work
area up to two times. These re-cleaning costs vary from job to job,
depending on the size of the space that must be cleaned.
    Annualized costs for the rule options are calculated using both a
3% and a 7% discount rate. Total annualized costs for the proposed rule
are $272 million per year using a 3% discount rate and $293 million per
year using a 7% discount rate. Under the low threshold option, costs
are $312 million per year with a 3% discount rate and $336 million per
year with a 7% rate. Under the high threshold option, costs are $224
million per year with a 3% discount rate and $242 million per year with
a 7% discount rate. The option that only requires dust wipe testing
costs $268 million per year with a 3% discount rate and $288 million
per year with a 7% discount rate. The option requiring clearance for
all renovations covered by the proposed rule costs $367 million with a
3% discount rate and $394 million with a 7% discount rate. The option
requiring the use of a third party for dust wipe sampling costs $431
million per year with a 3% discount rate and $459 million per year with
a 7% discount rate.

B. Paperwork Reduction Act

    The information collection requirements contained in this proposed
rule have been submitted for approval to the Office of Management and
Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
EPA has prepared an Information Collection Request (ICR) document to
amend an existing approved ICR. The ICR document, referred to as the
Proposed Clearance Rule ICR Addendum and identified under EPA ICR No.
2381.01 and OMB Control Number 2070-NEW, has been placed in the docket
for this proposed rule (Ref. 29). The information collection
requirements are not enforceable until OMB approves them.
    Burden under the PRA means the total time, effort, or financial
resources expended by persons to generate, maintain, retain, disclose,
or provide information to or for a Federal agency. This includes the
time needed to review instructions; develop, acquire, install, and
utilize technology and systems for the purposes of collecting,
validating, and verifying information, processing and maintaining
information, and disclosing and providing information; adjust the
existing ways to comply with any previously applicable instructions and
requirements; train personnel to be able to respond to a collection of
information; search data sources; complete and review the collection of
information; and transmit or otherwise disclose the information.
    The information collection activities contained in this proposed
rule are designed to assist the Agency in meeting the core objectives
of TSCA section 402. EPA has carefully tailored the recordkeeping
requirements so they will permit the Agency to achieve statutory
objectives without imposing an undue burden on those firms that choose
to be involved in renovation, repair, and painting activities.
    This proposed rule requires renovation firms to provide owners and
occupants with a report including the results of the dust wipe testing.
Although firms have the option of choosing to engage in the covered
activities, once a firm chooses to do so, the information collection
activities become mandatory for that firm. The rule may result in an
increase in the number of individuals becoming trained as dust sampling
technicians, resulting in additional paperwork requirements for
training providers.
    The ICR document provides a detailed presentation of the estimated
paperwork burden and costs resulting from this proposed rule. The
burden to firms engaged in renovation, repair, and painting activities
and to training providers are summarized in this unit.
    The requirement for renovation firms to provide a dust wipe testing
report for the renovations covered by the rule will impact about
224,000 firms. The additional burden for these firms arising from the
proposed rule is estimated to average nearly 13 hours per firm
annually, resulting in a total burden of approximately 2,867,000 hours
per year for these firms.
    Many certified renovators may become trained and certified as dust
sampling technicians so that they can take their own dust wipe samples
and send them to a lab for analysis. This will increase the paperwork
burden for training providers, since they must submit records to EPA
(or an authorizing State, Tribe, or Territory) pertaining to each
student attending a training course to become a dust sampling
technician. Around 170 training providers are estimated to incur an
average burden of about 82 hours, resulting in an increase of
approximately 14,000 hours per year in training provider burden as a
result of the proposed rule.
    Total respondent burden for renovation firms and training providers
is estimated to average approximately 2.9 million hours per year during
the 3 year period covered by the ICR.
    The proposed rule may also result in additional government costs to
administer the program (to process the additional training provider
notifications and to administer and enforce the program). States,
Tribes, and Territories are allowed, but are under no obligation, to
apply for and receive authorization to administer these requirements.
EPA will directly

administer programs for States, Tribes, and Territories that do not
become authorized. Because the number of States, Tribes, and
Territories that will become authorized is not known, administrative
costs are estimated assuming that EPA will administer the program
everywhere. To the extent that other government entities become
authorized, EPA's administrative costs will be lower.
    An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations codified in chapter 40 of the CFR, after appearing in the
preamble of the final rule, are listed in 40 CFR part 9, are displayed
either by publication in the Federal Register or by other appropriate
means, such as on the related collection instrument or form, if
applicable. When the ICR is approved by OMB, the Agency will publish a
technical amendment to 40 CFR part 9 in the Federal Register to display
the OMB control number for the approved information collection
requirements contained in the final rule.
    To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a docket for this
proposed rule, which includes this ICR, under docket ID number EPA-HQ-
OPPT-2005-0049. Submit any comments related to the ICR to EPA and OMB.
See ADDRESSES for where to submit comments to EPA. Send comments to OMB
at the Office of Information and Regulatory Affairs, Office of
Management and Budget, 725 17th St., NW., Washington, DC 20503,
Attention: Desk Office for EPA. Since OMB is required to make a
decision concerning the ICR between 30 and 60 days after May 6, 2010, a
comment to OMB is best assured of having its full effect if OMB
receives it by June 7, 2010. The final rule will respond to any OMB or
public comments on the information collection requirements contained in
this proposed rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
generally requires an agency to prepare a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements under the Administrative Procedure Act or any other
statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on
small entities, small entity is defined in accordance with section 601
of the RFA as:
    (1) A small business as defined by the Small Business
Administration's (SBA) regulations at 13 CFR 121.201.
    (2) A small governmental jurisdiction that is a government of a
city, county, town, school district, or special district with a
population of less than 50,000.
    (3) A small organization that is any not-for-profit enterprise
which is independently owned and operated and is not dominant in its
field.
    As required by section 603 of the RFA, EPA has prepared an initial
regulatory flexibility analysis (IRFA) for this proposed rule. The IRFA
is available for review in the docket and is summarized in this unit
(Ref. 30).
    1. Reasons why action by the Agency is being considered. The Agency
believes it is in the best interest of the public to require dust wipe
testing for many types of renovations (and to require renovation firms
to achieve clearance for certain types of renovations). EPA expects two
kinds of benefits to flow from the proposed dust wipe testing
requirements. The first are the direct benefits of the information to
the owners and occupants, the pure value of the information on dust
lead levels remaining in the renovation work area. For building owners
and occupants, this information is likely to improve their
understanding and awareness of dust-lead hazards. It will also greatly
improve their ability to make further risk management decisions,
especially in light of mounting evidence suggesting that the current
dust-lead hazard standards are too high. This information is
particularly critical where dust lead levels approach or exceed the
regulatory hazard standards. The other benefits that EPA expects to
flow from a dust wipe testing requirement are the benefits that may
result from changed behavior on the part of renovation firms. EPA
believes that dust wipe testing results will also provide valuable
feedback to renovation firms on how well they are cleaning up after
renovations. It is likely that the specific dust lead levels contained
in dust wipe testing results will increase renovation firm cleaning
efficiency. Renovation firms will be incentivized to lower the dust
lead levels remaining after renovation jobs, even if the levels are at
or near the regulatory standards. For two types of renovations that can
create large amounts of difficult-to-clean dust, EPA remains concerned
about the possibility that dust lead levels remaining, even after
cleaning verification, may substantially exceed the clearance
standards. If renovation firms choose to utilize these methods, the
firms would be required to demonstrate, through dust wipe testing, that
they have met the clearance standards before the renovation will be
considered completed.
    2. Legal basis and objectives for this proposed rule. These work
practice requirements for dust wipe testing and clearance, training,
certification and accreditation requirements, and State, Territorial
and Tribal authorization provisions are being promulgated under the
authority of TSCA sections 402(c)(3), 404, and 407, 15 U.S.C.
2682(c)(3), 2684, and 2687. A central objective of this proposed rule
is to provide greater assurance that dust-lead hazards created by
renovations are adequately cleaned up, primarily by requiring
renovation firms to provide building owners and occupants with
information on dust lead levels remaining in the work area after many
renovation projects, but also by requiring renovation firms to
demonstrate that they have achieved regulatory clearance levels after
some of the dustiest renovations.
    3. Potentially affected small entities. Small entities include
small businesses, small organizations, and small governmental
jurisdictions. The small entities that are potentially directly
regulated by this proposed rule include: Small businesses (such as
renovation contractors and property owners and managers); small
nonprofits (certain childcare centers and private schools); and small
governments (school districts which operate pre-schools, kindergartens
and certain child care centers).
    In determining the number of small businesses affected by the
proposed rule, the Agency applied U.S. Economic Census data to the
SBA's definition of small business. However, applying the U.S. Economic
Census data requires either under- or overestimating the number of
small businesses affected by the proposed rule. For example, for many
construction establishments, the SBA defines small businesses as having
revenues of less than $14 million. With respect to those
establishments, the U.S. Economic Census data groups all establishments
with revenues of $10 million or more into one revenue bracket. On the
one hand, using data for the entire industry would overestimate the
number of small businesses affected by the proposed rule and would
defeat the purpose of estimating impacts on small business. It would
also

underestimate the proposed rule's impact on small businesses because
the impacts would be calculated using the revenues of large businesses
in addition to small businesses. On the other hand, applying the
closest, albeit lower, revenue bracket would underestimate the number
of small businesses affected by the proposed rule while at the same
time overestimating the impacts. Similar issues arose in estimating the
fraction of property owners and managers that are small businesses. EPA
has concluded that a substantial number of small businesses will be
affected by the rule. Consequently, EPA has chosen to be more
conservative in estimating the cost impacts of the rule by using the
closest, albeit lower, revenue bracket for which U.S. Economic Census
data is available. For other sectors (nonprofits operating childcare
centers or private schools), EPA assumed that all affected firms are
small, which may overestimate the number of small entities affected by
the proposed rule.
    The vast majority of entities in the industries affected by this
proposed rule are small. Using EPA's estimates, these revisions to the
renovation, repair, and painting program will affect over 203,000 small
entities per year.
    4. Potential economic impacts on small entities. EPA evaluated two
factors in its analysis of the proposed rule's requirements on small
entities, the number of firms that would experience the impact, and the
size of the impact. Average annual compliance costs as a percentage of
average annual revenues were used to assess the potential average
impacts of the rule on small businesses and small governments. This
ratio is a good measure of entities' ability to afford the costs
attributable to a regulatory requirement, because comparing compliance
costs to revenues provides a reasonable indication of the magnitude of
the regulatory burden relative to a commonly available measure of
economic activity. Where regulatory costs represent a small fraction of
a typical entity's revenues, the financial impacts of the regulation on
such entities may be considered as not significant. For non-profit
organizations, impacts were measured by comparing rule costs to annual
expenditures. When expenditure data were not available, however,
revenue information was used as a proxy for expenditures. It is
appropriate to calculate the impact ratios using annualized costs,
because these costs are more representative of the continuing costs
entities face to comply with the proposed rule.
    The cost of the proposed rule to a typical small business averages
approximately $1,200 per year. This represents 0.4% to 1.1% of revenues
depending on the industry sector. Overall, an estimated 203,000 small
renovation contractors would be affected by the proposed rule, with
average impacts of 0.5% of revenues. Approximately 100 small
governments per year would incur a cost of about $800, resulting in an
average impact of less than 0.01%. And around 200 small non-profits per
year would incur a cost of about $600, resulting in an impact of
approximately 0.1%.
    Some of the small renovation contractors subject to the rule have
employees while others are non-employers. The non-employers typically
perform fewer jobs than firms with employees, and thus have lower work
practice compliance costs. However, they also have lower average
revenues than entities with employees, so their impacts (measured as
costs divided by revenues) can be higher. Impact estimates for non-
employers should be interpreted with caution, as some non-employers may
have significant issues related to understatement of income, which
would tend to exaggerate the average impact ratio for this class of
small entities. There are 151,000 non-employer renovation contractors
estimated to be affected by the proposed rule. The average cost to
these contractors is estimated to be approximately $700 apiece. This
represents 0.7% to 2.6% of reported revenues, depending on the industry
sector.
    5. Relevant Federal rules. The requirements in this proposed rule
will fit within an existing framework of other Federal regulations that
address lead-based paint. Notably, the Pre-Renovation Education Rule,
40 CFR 745.85, requires renovation firms to distribute a lead hazard
information pamphlet to owners and occupants before conducting a
renovation in target housing and child-occupied facilities. This
proposed rule's requirement that renovation firms provide owners and
occupants with dust wipe testing and clearance reports complements the
existing pre-renovation education requirements. Another such Federal
regulation is HUD's Lead Safe Housing Rule, 24 CFR part 35, subparts B-
R, which requires firms conducting interim controls of lead-based paint
hazards (a category which includes RRP work) to provide owners and
occupants with dust wipe testing and clearance reports.
    6. Skills needed for compliance. Under the lead renovation, repair,
and painting program requirements, renovators and dust sampling
technicians working in target housing and child-occupied facilities
have to take courses to learn the proper techniques for accomplishing
the tasks (including dust sampling, preparing a report with the
results, and performing specialized cleaning) they will perform during
renovations. These courses are intended to provide them with the
information they would need to comply with the rule based on the skills
they already have. Other renovation workers that have not been formally
trained and certified must receive training on the work practices they
will be using in performing their assigned tasks from a certified
renovator, and a certified renovator must regularly direct work being
performed by other renovation workers to ensure that the work practices
are being followed, including maintaining the integrity of the
containment barriers and ensuring that dust or debris does not spread
beyond the work area.
    7. Small Business Advocacy Review Panel. EPA has been concerned
with potential small entity impacts since the earliest stages of
planning for the RRP program under section 402(c)(3) of TSCA. EPA
conducted outreach to small entities and, pursuant to section 609 of
the RFA, convened a Small Business Advocacy Review Panel (the Panel) in
1999 to obtain advice and recommendations of representatives of the
regulated small entities. EPA identified eight key elements of a
potential renovation and remodeling regulation for the Panel's
consideration. These elements were: applicability and scope, firm
certification, individual training and certification, accreditation of
training courses, work practice standards, prohibited practices,
exterior clearance, and interior clearance.
    Details on the Panel and its recommendations are provided in the
Panel Report (Ref. 31). Information on how EPA implemented the Panel's
recommendations in the development of the RRP program is available in
Unit VIII.C. of the preamble to the 2006 proposed rule (Ref. 13) and in
Unit V.C. of the preamble to the 2008 final rule (Ref. 1). EPA believes
that the conclusions it made in 2008 regarding these recommendations
are applicable to this proposal. Indeed, EPA has considered input from
the 1999 Panel process in this rule precisely because it is so closely
related that EPA considers it an extension of the 2008 RRP rulemaking.
(See 5 U.S.C. 605(c))
    8. Alternatives considered. EPA considered alternatives to this
proposed rule that could affect the economic impacts of the proposed
rule on small entities. These alternatives would have applied to both
small and large entities,

but given the number of small entities in the affected industries,
these alternatives would primarily affect small entities. For the
reasons described in this unit, EPA believes these alternatives are not
consistent with the objectives of the rule.
    i. Higher thresholds. EPA considered an option under which the size
thresholds for determining whether renovation jobs would need to
perform dust wipe testing or achieve clearance would be higher than
those in the proposed rule. By reducing the number of renovations where
dust wipe testing or clearance are required, this option would reduce
the costs of the rule and thus the estimated small entity impacts.
However, higher thresholds would result in more jobs where occupants do
not have information on the dust lead levels they are exposed to, or
where they are exposed to dust lead levels above the hazard standard.
EPA believes that the proposed rule provides the best balance between
the benefits of the rule (the value of information from dust wipe
testing and the benefits of reduced exposure to lead dust from
achieving clearance) compared to the costs (and resulting small
business impacts) of dust wipe testing, re-cleaning, and the other
requirements of the proposed rule. Therefore, EPA believes that an
option with higher thresholds is not consistent with the stated
objectives of the proposed rule.
    ii. Dust testing only. EPA considered an option that would require
dust wipe testing but not clearance for any of these renovation events.
EPA remains concerned that renovations that disturb paint using
machines designed to remove lead-based paint through high speed
operation (such as power sanders or abrasive blasting) can create large
amounts of difficult-to-clean dust, creating the possibility that dust
lead levels may substantially exceed the clearance standards even after
cleaning verification. The same is true for the demolition or removal
through destructive means of plaster and lath walls, ceilings or other
building components with lead-based paint. Therefore, EPA believes that
this option is not consistent with the stated objectives of the
proposed rule.
    As required by section 212 of Small Business Regulatory Enforcement
Fairness Act (SBREFA), Public Law 104-121, EPA issued a Small Entity
Compliance Guide (the Guide) in December 2008 to help small entities
comply with the RRP rule. The Guide is available at: http://
www.epa.gov/lead/pubs/sbcomplianceguide.pdf or from the National Lead
Information Center by calling 1(800) 424-LEAD [5323]. EPA will revise
the Guide, as necessary, to reflect this rulemaking activity.
    EPA invites comments on all aspects of the proposal and its impact
on small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, requires Federal agencies, unless otherwise
prohibited by law, to assess the effects of their regulatory actions on
State, local, and tribal governments and the private sector. This rule
contains a Federal mandate that may result in expenditures of $100
million or more by the private sector in any 1 year, but it will not
result in such expenditures by State, local, and Tribal governments in
the aggregate. Accordingly, EPA has prepared under section 202 of the
UMRA a written statement (Ref. 32) which is summarized below.
Consistent with section 205 of the UMRA, EPA has identified and
considered a reasonable number of regulatory alternatives, also
summarized below.
    1. Authorizing legislation. This proposed rule is issued under the
authority of TSCA sections 402(c)(3), 404, and 407 (15 U.S.C.
2682(c)(3), 2684, and 2687).
    2. Cost-benefit analysis. EPA has prepared an analysis of the costs
and benefits associated with this proposed rule, a copy of which is
available in the docket for this proposed rule (Ref. 28). The Economic
Analysis presents the costs of this proposed rule as well as various
regulatory options and is summarized in Unit V.A. EPA has estimated the
total annualized costs of this proposed rule are $272 million per year
using a 3% discount rate and $293 million per year using a 7% discount
rate.
    The benefits of the proposed rule result from the prevention of
adverse health effects attributable to lead exposure from renovations
in pre-1978 buildings. These health effects include impaired cognitive
function in children and several illnesses in children and adults, such
as increased adverse cardiovascular outcomes (including increased blood
pressure, increased incidence of hypertension, cardiovascular morbidity
and mortality) and decreased kidney function.
    3. State, local, and Tribal government input. EPA has sought input
from State, local and Tribal government representatives throughout the
development of the renovation, repair, and painting program. EPA's
experience in administering the existing lead-based paint activities
program under TSCA section 402(a) suggests that these governments will
play a critical role in the successful implementation of a national
program to reduce exposures to lead-based paint hazards associated with
renovation, repair, and painting activities. Consequently, as discussed
in Unit III.C.2. of the preamble to the 2006 proposed rule (Ref. 13),
the Agency has met with State, local, and Tribal government officials
on numerous occasions to discuss renovation issues.
    4. Least burdensome option. EPA has considered a wide variety of
options for addressing the risks presented by renovation activities
where lead-based paint is present. As part of the development of the
renovation, repair, and painting program, EPA considered different
options for the scope of the proposed rule, various combinations of
training and certification requirements for individuals who perform
renovations, various combinations of work practice requirements, and
various methods for ensuring that no lead-based paint hazards are left
behind by persons performing renovations. The Economic Analysis for
this proposed rule analyzed several additional options for the scope of
the work practices required, in terms of the size threshold and whether
dust wipe testing or clearance is required. As described in Unit V.C.,
EPA has preliminarily concluded that the options for reducing the scope
would result in an unacceptable number of jobs where occupants do not
have information on the dust lead levels they are exposed to, or where
they are exposed to dust lead levels above the hazard standard.
    Currently, EPA believes that the preferred option is the least
burdensome option available that achieves a central objective of this
proposed rule, which is to provide greater assurance that dust-lead
hazards created by renovations are adequately cleaned up, primarily by
requiring renovation firms to provide building owners and occupants
with information on dust lead levels remaining in the work area after
many renovation projects, but also by requiring renovation firms to
demonstrate that they have achieved regulatory clearance levels after
some of the dustiest renovations.
    This rule is not subject to the requirements of section 203 of UMRA
because it contains no regulatory requirements that might significantly
or uniquely affect small governments. Based on the definition of
``small government jurisdiction'' in RFA section 601, 5 U.S.C. 601, no
State governments can be considered small. Small Territorial or Tribal
governments may apply for authorization to administer and enforce this
program, which would

entail costs, but these small jurisdictions are under no obligation to
do so. Small governments operate schools that are child-occupied
facilities. If these governments perform renovations in these
facilities, they may incur additional costs to perform dust wipe
testing or achieve clearance, and to provide residents, parents or
guardians with copies of the report documenting the dust wipe testing
results. EPA generally measures a significant impact under UMRA as
being expenditures, in the aggregate, of more than 1% of small
government revenues in any 1 year. As explained in Unit V.C.4., the
proposed rule is expected to result in small government impacts well
under 1% of revenues. So EPA has determined that the rule does not
significantly affect small governments. Nor does the rule uniquely
affect small governments, as the proposed rule is not targeted at small
governments, does not primarily affect small governments, and does not
impose a different burden on small governments than on other entities
that operate child-occupied facilities.

E. Executive Order 13132

    Pursuant to Executive Order 13132, entitled ``Federalism'' (64 FR
43255, August 10, 1999), EPA has determined that this proposed rule
does not have ``federalism implications,'' because it will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. Thus, Executive Order 13132 does
not apply to this proposed rule. States are able to apply for, and
receive authorization to administer the lead renovation, repair, and
painting program requirements, but are under no obligation to do so. In
the absence of a State authorization, EPA will administer the
requirements. Nevertheless, in the spirit of the objectives of this
Executive Order, and consistent with EPA policy to promote
communications between the Agency and State and local governments, EPA
consulted with representatives of State and local governments in
developing the renovation, repair, and painting program. These
consultations were described in the preamble to the 2006 Proposal (Ref.
13).

F. Executive Order 13175

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). EPA has
determined that this proposed rule does not have Tribal implications
because it will not have substantial direct effects on Tribal
governments, on the relationship between the Federal government and the
Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes, as specified in the
Order. Tribes are able to apply for and receive authorization to
administer the lead renovation, repair, and painting program on Tribal
lands, but Tribes are under no obligation to do so. In the absence of a
Tribal authorization, EPA will administer these requirements. While
Tribes may operate public housing or child-occupied facilities covered
by the rule such as kindergartens, pre-kindergartens, and daycare
facilities, EPA has determined that this rule would not have
substantial direct effects on the Tribal governments that operate these
facilities.
    Thus, Executive Order 13175 does not apply to this proposed rule.
Although Executive Order 13175 does not apply, EPA consulted with
Tribal officials and others by discussing potential renovation
regulatory options for the renovation, repair, and painting program at
several national lead program meetings hosted by EPA and other
interested Federal agencies. EPA specifically solicits additional
comment on this proposed action from tribal officials.

G. Executive Order 13045

    This action is subject to Executive Order 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is an ``economically
significant regulatory action'' as defined by Executive Order 12866,
and because the environmental health or safety risk addressed by this
action may have a disproportionate effect on children.
    A central purpose of this proposed rule is to provide greater
assurance that dust-lead hazards created by renovations are adequately
cleaned up, primarily by requiring renovation firms to provide building
owners and occupants with information on dust lead levels remaining in
the work area after many renovation projects, but also by requiring
renovation firms to demonstrate that they have achieved regulatory
clearance levels after some of the dustiest renovations. In the absence
of this regulation, owners and occupants would not have information on
the dust lead levels remaining following these renovation events, and
dust lead levels may substantially exceed the clearance standards for
certain renovations that can create large amounts of difficult-to-clean
dust.
    The proposed rule will protect children who reside in housing units
or attend child-occupied facilities where such renovations occur; who
visit a friend, relative, or caregiver's house where such renovations
are performed; or who move into such housing when their family
purchases it after such a renovation has been performed.

H. Executive Order 13211

    This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211, entitled ``Actions concerning
Regulations that Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001) because it is not likely to have any
adverse effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note),
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    This proposed rulemaking involves technical standards. EPA proposes
to use the government-unique technical standards described in Unit III
of this preamble. EPA has identified several potentially-applicable
voluntary consensus standards developed by ASTM International (formerly
the American Society for Testing and Materials) that address dust wipe
sampling, recordkeeping, and clearance procedures. These standards are:
``Standard Practice for Collection of Settled Dust Samples Using Wipe
Sampling Methods for Subsequent Lead Determination,'' ``Standard
Specification for Wipe Sampling Materials for Lead in Surface Dust,''
``Standard Practice for Record Keeping and Record Preservation for Lead
Hazard Activities,'' and ``Standard Practice for Clearance Examinations
Following Lead Hazard Reduction Activities in Single-Family Dwellings
and Child-Occupied Facilities'' (Refs. 33, 34, 35, 20). Each of

these ASTM documents represents state-of-the-art knowledge regarding
the performance of these particular aspects of lead-based paint hazard
evaluation and control practices and EPA recommends the use of these
documents where appropriate. EPA believes that the proposed amendments
to the RRP rule as well as EPA's model training courses for lead-based
paint inspectors, risk assessors, and dust sampling technicians are
consistent with these ASTM standards. However, because each of these
documents is extremely detailed and encompasses many circumstances
beyond the scope of this rulemaking, EPA determined that it would be
impractical to incorporate these voluntary consensus standards into the
rule.
    In addition, EPA has identified a potentially-applicable voluntary
consensus standard developed by ASTM International for evaluating the
performance of HEPA filtration systems, the ``Standard Test Method for
Air Cleaning Performance of a High-Efficiency Particulate Air-Filter
System'' (Ref. 27). EPA does recommend that renovation firms in the
market for a HEPA vacuum verify that the filter has been tested in
accordance with the ASTM standard or an equivalent test method.
However, EPA has determined that it would be impractical to incorporate
this test method into the rule.
    EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
Executive Order 12898
    Executive Order 12898, entitled ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, February 16, 1994) establishes federal
executive policy on environmental justice. Its main provision directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.
    EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. EPA has assessed the potential impact of this
proposed rule on minority and low-income populations. The results of
this assessment are presented in the Economic Analysis, which is
available in the docket for this proposed rule (Ref. 28).

List of Subjects in 40 CFR Part 745

    Environmental protection, Child-occupied facility, Housing
renovation, Lead, Lead-based paint, Renovation, Reporting and
recordkeeping requirements.

    Dated: April 22, 2010.
Lisa P. Jackson,
Administrator.

    Therefore, it is proposed that 40 CFR chapter I be amended as
follows:

    1. The authority citation for part 745 would continue to read as
follows:

    Authority:  15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.
    2. In Sec.  745.82, add a new paragraph (a)(3) to read as follows.

Sec.  745.82  Applicability.

    (a) * * *
    (3) Renovations in target housing or child-occupied facilities in
which a certified renovator has collected a paint chip sample from each
painted component affected by the renovation and a laboratory
recognized by EPA pursuant to section 405(b) of TSCA as being capable
of performing analyses for lead compounds in paint chip samples has
determined that the samples are free of paint or other surface coatings
that contain lead equal to or in excess of 1.0 mg/cm\2\ or 0.5% by
weight. If the components make up an integrated whole, such as the
individual stair treads and risers of a single staircase, the renovator
is required to test only one of the individual components, unless the
individual components appear to have been repainted or refinished
separately.
* * * * *
    3. In Sec.  745.83, add the definition ``Containment'' in
alphabetical order to read as follows:

Sec.  745.83  Definitions.

* * * * *
    Containment means a set of measures designed to protect residents
and the environment from leaded dust, paint chips, or other forms of
lead contamination created by renovations through the erection of
barriers and warning signs and the establishment of access control,
modifications to heating, ventilation, and air conditioning systems,
and other strategies. Vertical containment, required for some exterior
renovations, is a vertical barrier consisting of plastic sheeting over
scaffolding or a wood or metal frame, or an equivalent system.
* * * * *
    4. Section 745.85 is amended as follows:
    a. Revise paragraph (a)(2)(ii)(D);
    b. Revise paragraph (a)(3);
    c. Remove paragraph (c);
    d. Redesignate paragraphs (b) and (d) as paragraphs (c) and (e)
respectively;
    e. Add new paragraphs (b) and (d);
    f. Revise newly-redesignated paragraph (e);
    The revisions and additions read as follows:

Sec.  745.85  Work practice standards.

    (a) * * *
    (2) * * *
    (ii) * * *
    (D) If the renovation will affect surfaces within 10 feet of the
property line, the renovation firm must erect vertical containment to
ensure that dust and debris from the renovation does not contaminate
adjacent buildings or migrate to adjacent properties. Vertical
containment may also be necessary in other situations, such as in windy
conditions, in order to prevent contamination of other buildings, other
areas of the property, or adjacent buildings or properties.
    (3) Prohibited and restricted practices. The work practices listed
below are prohibited or restricted during a renovation as follows:
    (i) Open-flame burning or torching of painted surfaces is
prohibited.
    (ii) The use of machines designed to remove paint through high
speed operation such as sanding, grinding, power planing, needle gun,
abrasive blasting, or sandblasting, is prohibited on painted surfaces
unless such machines are shrouded and equipped with a HEPA vacuum
attachment to collect dust and debris at the point of generation.
    (iii) Operating a heat gun on painted surfaces is permitted only at
temperatures below 1,100 degrees Fahrenheit.
* * * * *
    (b) Clearance--(1) Mandatory clearance. Clearance is required after
renovations involving the demolition, or removal through destructive
means, of more than 6 ft\2\ of plaster and lath building component, or
the disturbance

of paint using machines designed to remove paint through high-speed
operation, such as sanding, grinding, power planning, needle gun,
abrasive blasting or sandblasting. When clearance is required, the
following clearance procedures must be performed:
    (i) A certified inspector, certified risk assessor, or certified
dust sampling technician must perform a visual inspection to determine
whether dust, debris or residue is still present in the renovation work
area. If dust, debris or residue is present, these conditions must be
removed by re-cleaning and another visual inspection must be performed.
    (ii) A certified inspector, certified risk assessor, or certified
dust sampling technician must collect dust wipe samples in accordance
with EPA's ``Residential Sampling for Lead: Protocols for Dust and Soil
Sampling, EPA-747-R-95-001'' or an equivalent protocol that
incorporates adequate quality control procedures. Samples must be
collected in the following locations:
    (A) If there is more than one room, hallway, or stairwell within
the work area, the following samples must be collected:
    (1) One windowsill sample, one window trough sample, and one floor
sample within each room, hallway, or stairwell in the work area. If
there are more than four rooms, hallways, or stairwells within the work
area, only four rooms, hallways, or stairwells must be sampled.
    (2) One floor sample adjacent to the work area, but not in an area
that has been cleaned.
    (B) If the work area is a single room, hallway, stairwell, or
smaller area, the following samples must be collected:
    (1) One windowsill sample, one window trough sample, and one floor
sample.
    (2) One floor sample adjacent to the work area, but not in an area
that has been cleaned.
    (C) No window sill or trough samples must be collected if there are
no windows in the work area.
    (iii) Dust wipe samples must be analyzed by a laboratory or other
entity recognized by EPA pursuant to section 405(b) of the Toxic
Substances Control Act as being capable of performing analyses for lead
compounds in dust samples. If a fixed-site laboratory is to be used,
the dust wipe samples must be mailed or otherwise transmitted to the
laboratory within 1 business day of the date that they are collected.
    (iv) A certified inspector, certified risk assessor, or certified
dust sampling technician must compare the residual lead level reported
by the EPA-recognized laboratory for each dust sample or test with the
applicable clearance level. If the residual lead level in a particular
dust sample or test equals or exceeds the applicable clearance level,
the components represented by the failed sample or test shall be re-
cleaned and re-tested. The applicable clearance levels are:
    (A) 40 [mu]g/ft\2\ for floors.
    (B) 250 [mu]g/ft\2\ for interior window sills.
    (C) 400 [mu]g/ft\2\ for window troughs.
    (v) For surfaces in poor condition that the renovation firm did not
specifically agree to refinish in the renovation contract, the
renovation firm may stop re-cleaning and re-testing after the second
failed dust wipe test on that surface.
    (vi) The certified inspector, certified risk assessor, or certified
dust sampling technician performing the clearance procedures must
prepare a clearance report and provide it to the renovation firm within
3 days of the date that the final dust wipe testing results are
obtained. The report must be a single document, with attachments, and
must include the following information:
    (A) Start and completion dates of the renovation.
    (B) A brief written description of the renovation.
    (C) The name and address of the certified firm employing the
certified inspector, certified risk assessor, or certified dust
sampling technician performing the clearance procedures.
    (D) The name and signature of each certified inspector, certified
risk assessor, or certified dust sampling technician performing
clearance procedures and the date(s) that clearance procedures were
performed.
    (E) The results of the visual inspection.
    (F) A detailed written description of the specific sampling or
testing locations or a detailed drawing that clearly identifies the
location of each sample or test.
    (G) The results for each dust wipe sample or test, whether or not
clearance was achieved, and the name of each recognized laboratory or
other entity that conducted the analyses.
    (2) Optional clearance. Renovation firms that choose to comply with
all of the requirements of this paragraph (745.85(b)) need not comply
with the requirements of paragraph (d) of this section.
* * * * *
    (d) Dust wipe testing. (1) Dust wipe testing must be performed
after all renovations involving:
    (i) Use of a heat gun at temperatures below 1,100 degrees
Fahrenheit.
    (ii) Removal or replacement of window or door frames.
    (iii) Scraping 60 ft\2\ or more of painted surfaces.
    (iv) Removing more than 40 ft\2\ of trim, molding, cabinets, or
other fixtures.
    (2) After cleaning verification has been performed in accordance
with paragraph (c) of this section, a certified inspector, certified
risk assessor, or certified dust sampling technician must collect dust
wipe samples in accordance with EPA's ``Residential Sampling for Lead:
Protocols for Dust and Soil Sampling, EPA-747-R-95-001'' or an
equivalent protocol that incorporates adequate quality control
procedures. Samples must be collected in the following locations:
    (i) If there is more than one room, hallway, or stairwell within
the work area, the following samples must be collected:
    (A) One windowsill sample, one window trough sample, and one floor
sample within each room, hallway, or stairwell in the work area. If
there are more than four rooms, hallways, or stairwells within the work
area, only four rooms, hallways, or stairwells must be sampled.
    (B) One floor sample adjacent to the work area, but not in an area
that has been cleaned.
    (ii) If the work area is a single room, hallway, stairwell, or
smaller area, the following samples must be collected:
    (A) One windowsill sample, one window trough sample, and one floor
sample.
    (B) One floor sample adjacent to the work area, but not in an area
that has been cleaned.
    (iii) No window sill or trough samples must be collected if there
are no windows in the work area.
    (3) Dust wipe samples must be analyzed by a laboratory or other
entity recognized by EPA pursuant to section 405(b) of the Toxic
Substances Control Act as being capable of performing analyses for lead
compounds in dust samples. If a fixed-site laboratory is to be used,
the dust wipe samples must be mailed or otherwise transmitted to the
laboratory within 1 business day of the date that they are collected.
    (4) The certified inspector, certified risk assessor, or certified
dust sampling technician performing the dust wipe testing must prepare
a dust wipe testing report and provide it to the renovation firm within
3 days of the date that the dust wipe testing results are obtained. The
report must be a single document,

with attachments, and must include the following information:
    (i) Start and completion dates of the renovation.
    (ii) A brief written description of the renovation.
    (iii) The name and address of the certified firm employing the
certified inspector, certified risk assessor, or certified dust
sampling technician performing the dust wipe testing.
    (iv) The name and signature of each certified inspector, certified
risk assessor, or certified dust sampling technician performing
sampling or testing and the date(s) that samples were collected or
testing performed.
    (v) The results of the visual inspection.
    (vi) A detailed written description of the specific sampling or
testing locations or a detailed drawing that clearly identifies the
location of each sample or test.
    (vii) The results for each dust wipe test, a statement of whether
or not all samples analyzed were below the applicable clearance
standards, and the name of each recognized laboratory or other entity
that conducted the analyses.
    (viii) The clearance standard from paragraph (b)(1)(iv) of this
section that is applicable to each dust wipe test and, if one or more
final dust wipe tests equals or exceeds the applicable clearance
standards, a statement that any dust lead levels that equal or exceed
the clearance standards will demonstrate that a lead-based paint hazard
is present after the work is completed..
    (e) Activities conducted after post-renovation clearance, dust wipe
testing, or cleaning verification. Activities that do not disturb
paint, such as applying paint to walls that have already been prepared,
are not regulated by this subpart if they are conducted after post-
renovation clearance, dust wipe testing, or cleaning verification has
been performed.
    5. In Sec.  745.86, revise paragraph (d) to read as follows:

Sec.  745.86  Recordkeeping and reporting requirements.

* * * * *
    (d) If clearance or dust wipe testing is performed in accordance
with Sec.  745.85, the renovation firm must provide, within 3 days of
the date the renovation firm receives the report, a copy of the
clearance or dust wipe testing report to:
    (1) The owner of the building; and, if different,
    (2) An adult occupant of the residential dwelling, if the
renovation took place within a residential dwelling, or an adult
representative of the child-occupied facility, if the renovation took
place within a child-occupied facility.
    6. Section 745.90 is amended as follows:
    a. By revising paragraphs (a)(2) and (a)(3).
    b. By revising paragraphs (b)(2), (b)(4), and (b)(8).

Sec.  745.90  Renovator certification and dust sampling technician
certification.

    (a) * * *
    (2) Individuals who have successfully completed an accredited
abatement worker or supervisor course, or individuals who successfully
completed an EPA, HUD, or EPA/HUD model renovation training course may
take an accredited refresher renovator training course before April 22,
2011 in lieu of the initial renovator training course to become a
certified renovator.
    (3) Individuals who have successfully completed an accredited lead-
based paint inspector or risk assessor course may take an accredited
refresher dust sampling technician course before April 22, 2011 in lieu
of the initial training to become a certified dust sampling technician.
Individuals who are currently certified as lead-based paint inspectors
or risk assessors may act as dust sampling technicians without further
training.
* * * * *
    (b) * * *
    (2) Must provide training to workers on the work practices required
by Sec.  745.85(a) that they will be using in performing their assigned
tasks.
* * * * *
    (4) Must regularly direct work being performed by other individuals
to ensure that the work practices required by Sec.  745.85(a) are being
followed, including maintaining the integrity of the containment
barriers and ensuring that dust or debris does not spread beyond the
work area.
* * * * *
    (8) Must prepare the records required by Sec.  745.86(b)(1) and
(6).
* * * * *
    7. In Sec.  745.92, add paragraph (b)(3) to read as follows:

Sec.  745.92  Fees for the accreditation of renovation and dust
sampling technician training and the certification of renovation firms.

* * * * *
    (b) * * *
    (3) Accreditation or certification amendments. No fee will be
charged for accreditation or certification amendments.
* * * * *
    8. Revise Sec.  745.225 to read as follows:

Sec.  745.225  Accreditation of training programs: target housing and
child-occupied facilities.

    (a) Scope. (1) A training program may seek accreditation to offer
courses in any of the following disciplines: Inspector, risk assessor,
supervisor, project designer, abatement worker, renovator, and dust
sampling technician. A training program may also seek accreditation to
offer refresher courses for each of the above listed disciplines.
    (2) Training programs may first apply to EPA for accreditation of
their lead-based paint activities courses or refresher courses pursuant
to this section on or after August 31, 1998. Training programs may
first apply to EPA for accreditation of their renovator or dust
sampling technician courses or refresher courses pursuant to this
section on or after April 22, 2009.
    (3) A training program must not provide, offer, or claim to provide
EPA-accredited lead-based paint activities courses without applying for
and receiving accreditation from EPA as required under paragraph (b) of
this section on or after March 1, 1999. A training program must not
provide, offer, or claim to provide EPA-accredited renovator or dust
sampling technician courses without applying for and receiving
accreditation from EPA as required under paragraph (b) of this section
on or after June 23, 2008.
    (b) Application process. The following are procedures a training
program must follow to receive EPA accreditation to offer lead-based
paint activities courses, renovator courses, or dust sampling
technician courses:
    (1) A training program seeking accreditation shall submit a written
application to EPA containing the following information:
    (i) The training program's name, address, and telephone number.
    (ii) A list of courses for which it is applying for accreditation.
For the purposes of this section, courses taught in different languages
and electronic learning courses are considered different courses, and
each must independently meet the accreditation requirements.
    (iii) The name and documentation of the qualifications of the
training program manager.
    (iv) The name(s) and documentation of qualifications of any
principal instructor(s).
    (v) A statement signed by the training program manager certifying
that the training program meets the requirements established in
paragraph (c) of this section. If a training program uses EPA-
recommended model training

materials, or training materials approved by a State or Indian Tribe
that has been authorized by EPA under subpart Q of this part, the
training program manager shall include a statement certifying that, as
well.
    (vi) If a training program does not use EPA-recommended model
training materials, its application for accreditation shall also
include:
    (A) A copy of the student and instructor manuals, or other
materials to be used for each course.
    (B) A copy of the course agenda for each course.
    (C) When applying for accreditation of a course in a language other
than English, a signed statement from a qualified, independent
translator that they had compared the course to the English language
version and found the translation to be accurate.
    (vii) All training programs shall include in their application for
accreditation the following:
    (A) A description of the facilities and equipment to be used for
lecture and hands-on training.
    (B) A copy of the course test blueprint for each course.
    (C) A description of the activities and procedures that will be
used for conducting the assessment of hands-on skills for each course.
    (D) A copy of the quality control plan as described in paragraph
(c)(9) of this section.
    (2) If a training program meets the requirements in paragraph (c)
of this section, then EPA shall approve the application for
accreditation no more than 180 days after receiving a complete
application from the training program. In the case of approval, a
certificate of accreditation shall be sent to the applicant. In the
case of disapproval, a letter describing the reasons for disapproval
shall be sent to the applicant. Prior to disapproval, EPA may, at its
discretion, work with the applicant to address inadequacies in the
application for accreditation. EPA may also request additional
materials retained by the training program under paragraph (i) of this
section. If a training program's application is disapproved, the
program may reapply for accreditation at any time.
    (3) A training program may apply for accreditation to offer courses
or refresher courses in as many disciplines as it chooses. A training
program may seek accreditation for additional courses at any time as
long as the program can demonstrate that it meets the requirements of
this section.
    (4) A training program applying for accreditation must submit the
appropriate fees in accordance with Sec.  745.238.
    (c) Requirements for the accreditation of training programs. For a
training program to obtain accreditation from EPA to offer lead-based
paint activities courses, renovator courses, or dust sampling
technician courses, the program must meet the following requirements:
    (1) The training program shall employ a training manager who has:
    (i) At least 2 years of experience, education, or training in
teaching workers or adults; or
    (ii) A bachelor's or graduate degree in building construction
technology, engineering, industrial hygiene, safety, public health,
education, business administration or program management or a related
field; or
    (iii) Two years of experience in managing a training program
specializing in environmental hazards; and
    (iv) Demonstrated experience, education, or training in the
construction industry including: Lead or asbestos abatement, painting,
carpentry, renovation, remodeling, occupational safety and health, or
industrial hygiene.
    (2) The training manager shall designate a qualified principal
instructor for each course who has:
    (i) Demonstrated experience, education, or training in teaching
workers or adults; and
    (ii) Successfully completed at least 16 hours of any EPA-accredited
or EPA-authorized State or Tribal-accredited lead-specific training;
and
    (iii) Demonstrated experience, education, or training in lead or
asbestos abatement, painting, carpentry, renovation, remodeling,
occupational safety and health, or industrial hygiene.
    (3) The principal instructor shall be responsible for the
organization of the course, course delivery, and oversight of the
teaching of all course material. The training manager may designate
guest instructors as needed for a portion of the course to provide
instruction specific to the lecture, hands-on activities, or work
practice components of a course. However, the principal instructor is
primarily responsible for teaching the course materials and must be
present to provide instruction (or oversight of portions of the course
taught by guest instructors) for the course for which he has been
designated the principal instructor.
    (4) The following documents shall be recognized by EPA as evidence
that training managers and principal instructors have the education,
work experience, training requirements or demonstrated experience,
specifically listed in paragraphs (c)(1) and (c)(2) of this section.
This documentation must be submitted with the accreditation application
and retained by the training program as required by the recordkeeping
requirements contained in paragraph (i) of this section. Those
documents include the following:
    (i) Official academic transcripts or diploma as evidence of meeting
the education requirements.
    (ii) Re[acute]sume[acute]s, letters of reference, or documentation
of work experience, as evidence of meeting the work experience
requirements.
    (iii) Certificates from train-the-trainer courses and lead-specific
training courses, as evidence of meeting the training requirements.
    (5) The training program shall ensure the availability of, and
provide adequate facilities for, the delivery of the lecture, course
test, hands-on training, and assessment activities. This includes
providing training equipment that reflects current work practices and
maintaining or updating the equipment and facilities as needed.
    (6) To become accredited in the following disciplines, the training
program shall provide training courses that meet the following training
requirements:
    (i) The inspector course shall last a minimum of 24 training hours,
with a minimum of 8 hours devoted to hands-on training activities. The
minimum curriculum requirements for the inspector course are contained
in paragraph (d)(1) of this section.
    (ii) The risk assessor course shall last a minimum of 16 training
hours, with a minimum of 4 hours devoted to hands-on training
activities. The minimum curriculum requirements for the risk assessor
course are contained in paragraph (d)(2) of this section.
    (iii) The supervisor course shall last a minimum of 32 training
hours, with a minimum of 8 hours devoted to hands-on activities. The
minimum curriculum requirements for the supervisor course are contained
in paragraph (d)(3) of this section.
    (iv) The project designer course shall last a minimum of 8 training
hours. The minimum curriculum requirements for the project designer
course are contained in paragraph (d)(4) of this section.
    (v) The abatement worker course shall last a minimum of 16 training
hours, with a minimum of 8 hours devoted to hands-on training
activities. The minimum curriculum requirements for the abatement
worker course are contained in paragraph (d)(5) of this section.

    (vi) The renovator course must last a minimum of 8 training hours,
with a minimum of 2 hours devoted to hands-on training activities. The
minimum curriculum requirements for the renovator course are contained
in paragraph (d)(6) of this section.
    (vii) The dust sampling technician course must last a minimum of 8
training hours, with a minimum of 2 hours devoted to hands-on training
activities. The minimum curriculum requirements for the dust sampling
technician course are contained in paragraph (d)(7) of this section.
    (viii) Electronic learning and other alternative course delivery
methods are permitted for the classroom portion of renovator, dust
sampling technician, or lead-based paint activities courses but not the
hands-on portion of these courses. Electronic learning courses must
comply with the following requirements:
    (A) A unique identifier must be assigned to each student for them
to use to launch and re-launch the course.
    (B) The training provider must track each student's course log-ins,
launches, progress, and completion, and maintain these records in
accordance with paragraph (i) of this section.
    (C) The course must include knowledge checks for each module, which
must be successfully completed before the student can go on to the next
module.
    (D) There must be a test of at least 20 questions at the end of the
electronic learning portion of the course, of which 80% must be
answered correctly by the student for successful completion of the
electronic learning portion of the course.
    (E) Each student must be able to save or print an uneditable copy
of an electronic learning course completion certificate.
    (7) For each course offered, the training program shall conduct
either a course test at the completion of the course, and if
applicable, a hands-on skills assessment, or in the alternative, a
proficiency test for that discipline. Each individual must successfully
complete the hands-on skills assessment and receive a passing score on
the course test to pass any course, or successfully complete a
proficiency test.
    (i) The training manager is responsible for maintaining the
validity and integrity of the hands-on skills assessment or proficiency
test to ensure that it accurately evaluates the trainees' performance
of the work practices and procedures associated with the course topics
contained in paragraph (d) of this section.
    (ii) The training manager is responsible for maintaining the
validity and integrity of the course test to ensure that it accurately
evaluates the trainees' knowledge and retention of the course topics.
    (iii) The course test shall be developed in accordance with the
test blueprint submitted with the training accreditation application.
    (8) The training program shall issue unique course completion
certificates to each individual who passes the training course. The
course completion certificate shall include:
    (i) The name, a unique identification number, and address of the
individual.
    (ii) The name of the particular course that the individual
completed.
    (iii) Dates of course completion/test passage.
    (iv) For initial inspector, risk assessor, project designer,
supervisor, or abatement worker course completion certificates, the
expiration date of interim certification, which is 6 months from the
date of course completion.
    (v) The name, address, and telephone number of the training
program.
    (vi) The language in which the course was taught.
    (vii) For renovator and dust sampling technician course completion
certificates, a photograph of the individual. The photograph must be an
accurate and recognizable image of the individual. As reproduced on the
certificate, the photograph must not be smaller than 1 square inch.
    (9) The training manager shall develop and implement a quality
control plan. The plan shall be used to maintain and improve the
quality of the training program over time. This plan shall contain at
least the following elements:
    (i) Procedures for periodic revision of training materials and the
course test to reflect innovations in the field.
    (ii) Procedures for the training manager's annual review of
principal instructor competency.
    (10) Courses offered by the training program must teach the work
practice standards contained in Sec.  745.85 or Sec.  745.227, as
applicable, in such a manner that trainees are provided with the
knowledge needed to perform the renovations or lead-based paint
activities they will be responsible for conducting.
    (11) The training manager shall be responsible for ensuring that
the training program complies at all times with all of the requirements
in this section.
    (12) The training manager shall allow EPA to audit the training
program to verify the contents of the application for accreditation as
described in paragraph (b) of this section.
    (13) The training manager must provide notification of renovator,
dust sampling technician, or lead-based paint activities courses
offered.
    (i) The training manager must provide EPA with notification of all
renovator, dust sampling technician, or lead-based paint activities
courses offered. The original notification must be received by EPA at
least 7 business days prior to the start date of any renovator, dust
sampling technician, or lead-based paint activities course.
    (ii) The training manager must provide EPA updated notification
when renovator, dust sampling technician, or lead-based paint
activities courses will begin on a date other than the start date
specified in the original notification, as follows:
    (A) For renovator, dust sampling technician, or lead-based paint
activities courses beginning prior to the start date provided to EPA,
an updated notification must be received by EPA at least 7 business
days before the new start date.
    (B) For renovator, dust sampling technician, or lead-based paint
activities courses beginning after the start date provided to EPA, an
updated notification must be received by EPA at least 2 business days
before the start date provided to EPA.
    (iii) The training manager must update EPA of any change in
location of renovator, dust sampling technician, or lead-based paint
activities courses at least 7 business days prior to the start date
provided to EPA.
    (iv) The training manager must update EPA regarding any course
cancellations, or any other change to the original notification.
Updated notifications must be received by EPA at least 2 business days
prior to the start date provided to EPA.
    (v) Each notification, including updates, must include the
following:
    (A) Notification type (original, update, cancellation).
    (B) Training program name, EPA accreditation number, address, and
telephone number.
    (C) Course discipline, type (initial/refresher), and the language
in which instruction will be given.
    (D) Date(s) and time(s) of training.
    (E) Training location(s) telephone number, and address.
    (F) Principal instructor's name.
    (G) Training manager's name and signature.
    (vi) Notification must be accomplished using any of the following
methods: Written notification, or electronically using the Agency's

Central Data Exchange (CDX). Written notification of lead-based paint
activities course schedules can be accomplished by using either the
sample form titled ``Lead-Based Paint Training Notification'' or a
similar form containing the information required in paragraph
(c)(13)(v) of this section. All written notifications must be delivered
by U.S. Postal Service, fax, commercial delivery service, or hand
delivery (persons submitting notification by U.S. Postal Service are
reminded that they should allow 3 additional business days for delivery
in order to ensure that EPA receives the notification by the required
date). Instructions and sample forms can be obtained from the NLIC at
1-800-424-LEAD(5323), or on the Internet at http://www.epa.gov/lead.
    (vii) Renovator, dust sampling technician, or lead-based paint
activities courses must not begin on a date, or at a location other
than that specified in the original notification unless an updated
notification identifying a new start date or location is submitted, in
which case the course must begin on the new start date and/or location
specified in the updated notification.
    (viii) No training program shall provide renovator, dust sampling
technician, or lead-based paint activities courses without first
notifying EPA of such activities in accordance with the requirements of
this paragraph.
    (14) The training manager must provide notification following
completion of renovator, dust sampling technician, or lead-based paint
activities courses.
    (i) The training manager must provide EPA notification after the
completion of any lead-based paint activities course. This notice must
be received by EPA no later than 10 business days following course
completion.
    (ii) The notification must include the following:
    (A) Training program name, EPA accreditation number, address, and
telephone number.
    (B) Course discipline and type (initial/refresher).
    (C) Date(s) of training.
    (D) The following information for each student who took the course:
    (1) Name.
    (2) Address.
    (3) Date of birth.
    (4) Course completion certificate number.
    (5) Course test score.
    (6) For renovator or dust sampling technician courses, a digital
photograph of the student.
    (E) Training manager's name and signature.
    (iii) Notification must be accomplished using any of the following
methods: Written notification, or electronically using the Agency's
Central Data Exchange (CDX). Written notification following renovator,
dust sampling technician, or lead-based paint activities training
courses can be accomplished by using either the sample form titled
``Lead-Based Paint Training Course Follow-up'' or a similar form
containing the information required in paragraph (c)(14)(ii) of this
section. All written notifications must be delivered by U.S. Postal
Service, fax, commercial delivery service, or hand delivery (persons
submitting notification by U.S. Postal Service are reminded that they
should allow 3 additional business days for delivery in order to ensure
that EPA receives the notification by the required date). Instructions
and sample forms can be obtained from the NLIC at 1-800-424-LEAD(5323),
or on the Internet at http://www.epa.gov/lead.
    (d) Minimum training curriculum requirements. To become accredited
to offer lead-based paint courses in the specific disciplines listed
below, training programs must ensure that their courses of study
include, at a minimum, the following course topics.
    (1) Inspector. Instruction in the topics described in paragraphs
(d)(1)(iv), (v), (vi), and (vii) of this section must be included in
the hands-on portion of the course.
    (i) Role and responsibilities of an inspector.
    (ii) Background information on lead and its adverse health effects.
    (iii) Background information on Federal, State, and local
regulations and guidance that pertains to lead-based paint and lead-
based paint activities.
    (iv) Lead-based paint inspection methods, including selection of
rooms and components for sampling or testing.
    (v) Paint, dust, and soil sampling methodologies.
    (vi) Clearance standards and testing, including random sampling.
    (vii) Preparation of the final inspection report.
    (viii) Recordkeeping.
    (2) Risk assessor. Instruction in the topics described in
paragraphs (d)(2)(iv), (vi), and (vii) of this section must be included
in the hands-on portion of the course.
    (i) Role and responsibilities of a risk assessor.
    (ii) Collection of background information to perform a risk
assessment.
    (iii) Sources of environmental lead contamination such as paint,
surface dust and soil, water, air, packaging, and food.
    (iv) Visual inspection for the purposes of identifying potential
sources of lead-based paint hazards.
    (v) Lead hazard screen protocol.
    (vi) Sampling for other sources of lead exposure.
    (vii) Interpretation of lead-based paint and other lead sampling
results, including all applicable State or Federal guidance or
regulations pertaining to lead-based paint hazards.
    (viii) Development of hazard control options, the role of interim
controls, and operations and maintenance activities to reduce lead-
based paint hazards.
    (ix) Preparation of a final risk assessment report.
    (3) Supervisor. Instruction in the topics described in paragraphs
(d)(3)(v), (vii), (viii), (ix), and (x) of this section must be
included in the hands-on portion of the course.
    (i) Role and responsibilities of a supervisor.
    (ii) Background information on lead and its adverse health effects.
    (iii) Background information on Federal, State, and local
regulations and guidance that pertain to lead-based paint abatement.
    (iv) Liability and insurance issues relating to lead-based paint
abatement.
    (v) Risk assessment and inspection report interpretation.
    (vi) Development and implementation of an occupant protection plan
and abatement report.
    (vii) Lead-based paint hazard recognition and control.
    (viii) Lead-based paint abatement and lead-based paint hazard
reduction methods, including restricted practices.
    (ix) Interior dust abatement/cleanup or lead-based paint hazard
control and reduction methods.
    (x) Soil and exterior dust abatement or lead-based paint hazard
control and reduction methods.
    (xi) Clearance standards and testing.
    (xii) Cleanup and waste disposal.
    (xiii) Recordkeeping.
    (4) Project designer. (i) Role and responsibilities of a project
designer.
    (ii) Development and implementation of an occupant protection plan
for large-scale abatement projects.
    (iii) Lead-based paint abatement and lead-based paint hazard
reduction methods, including restricted practices for large-scale
abatement projects.
    (iv) Interior dust abatement/cleanup or lead hazard control and
reduction methods for large-scale abatement projects.
    (v) Clearance standards and testing for large scale abatement
projects.
    (vi) Integration of lead-based paint abatement methods with
modernization and rehabilitation projects for large scale abatement
projects.

    (5) Abatement worker. Instruction in the topics described in
paragraphs (d)(5)(iv), (v), (vi), and (vii) of this section must be
included in the hands-on portion of the course.
    (i) Role and responsibilities of an abatement worker.
    (ii) Background information on lead and its adverse health effects.
    (iii) Background information on Federal, State and local
regulations and guidance that pertain to lead-based paint abatement.
    (iv) Lead-based paint hazard recognition and control.
    (v) Lead-based paint abatement and lead-based paint hazard
reduction methods, including restricted practices.
    (vi) Interior dust abatement methods/cleanup or lead-based paint
hazard reduction.
    (vii) Soil and exterior dust abatement methods or lead-based paint
hazard reduction.
    (6) Renovator. Instruction in the topics described in paragraphs
(d)(6)(iv), (v), (vi), (vii), and (viii) of this section must be
included in the hands-on portion of the course.
    (i) Role and responsibility of a renovator.
    (ii) Background information on lead and its adverse health effects.
    (iii) Background information on EPA, HUD, OSHA, and other Federal,
State, and local regulations and guidance that pertains to lead-based
paint and renovation activities.
    (iv) Procedures for using acceptable test kits to determine whether
paint is lead-based paint.
    (v) Procedures for collecting a paint chip sample and sending it to
a laboratory recognized by EPA under section 405(b) of TSCA.
    (vi) Renovation methods to minimize the creation of dust and lead-
based paint hazards.
    (vii) Interior and exterior containment and cleanup methods.
    (viii) Methods to ensure that the renovation has been properly
completed, including cleaning verification and clearance testing.
    (ix) Waste handling and disposal.
    (x) Providing on-the-job training to other workers.
    (xi) Record preparation.
    (7) Dust sampling technician. Instruction in the topics described
in paragraphs (d)(6)(iv) and (vi) of this section must be included in
the hands-on portion of the course.
    (i) Role and responsibility of a dust sampling technician.
    (ii) Background information on lead and its adverse health effects.
    (iii) Background information on Federal, State, and local
regulations and guidance that pertains to lead-based paint and
renovation activities.
    (iv) Dust sampling methodologies.
    (v) Clearance standards and testing.
    (vi) Report preparation.
    (e) Requirements for the accreditation of refresher training
programs. A training program may seek accreditation to offer refresher
training courses in any of the following disciplines: Inspector, risk
assessor, supervisor, project designer, abatement worker, renovator,
and dust sampling technician. To obtain EPA accreditation to offer
refresher training, a training program must meet the following minimum
requirements:
    (1) Each refresher course shall review the curriculum topics of the
full-length courses listed under paragraph (d) of this section, as
appropriate. In addition, to become accredited to offer refresher
training courses, training programs shall ensure that their courses of
study include, at a minimum, the following:
    (i) An overview of current safety practices relating to lead-based
paint in general, as well as specific information pertaining to the
appropriate discipline.
    (ii) Current laws and regulations relating to lead-based paint in
general, as well as specific information pertaining to the appropriate
discipline.
    (iii) Current technologies relating to lead-based paint in general,
as well as specific information pertaining to the appropriate
discipline.
    (2) Refresher courses for inspector, risk assessor, supervisor, and
abatement worker must last a minimum of 8 training hours. Refresher
courses for project designer, renovator, and dust sampling technician
must last a minimum of 4 training hours. Refresher courses for all
disciplines except project designer must include a hands-on component.
    (3) For each course offered, the training program shall conduct a
hands-on assessment (for all courses except project designer), and at
the completion of the course, a course test.
    (4) A training program may apply for accreditation of a refresher
course concurrently with its application for accreditation of the
corresponding training course as described in paragraph (b) of this
section. If so, EPA shall use the approval procedure described in
paragraph (b) of this section. In addition, the minimum requirements
contained in paragraphs (c) (except for the requirements in paragraph
(c)(6)), and (e)(1), (e)(2) and (e)(3) of this section shall also
apply.
    (5) A training program seeking accreditation to offer refresher
training courses only shall submit a written application to EPA
containing the following information:
    (i) The refresher training program's name, address, and telephone
number.
    (ii) A list of courses for which it is applying for accreditation.
    (iii) The name and documentation of the qualifications of the
training program manager.
    (iv) The name(s) and documentation of the qualifications of the
principal instructor(s).
    (v) A statement signed by the training program manager certifying
that the refresher training program meets the minimum requirements
established in paragraph (c) of this section, except for the
requirements in paragraph (c)(6) of this section. If a training program
uses EPA-developed model training materials, or training materials
approved by a State or Indian Tribe that has been authorized by EPA
under Sec.  745.324 to develop its refresher training course materials,
the training manager shall include a statement certifying that, as
well.
    (vi) If the refresher training course materials are not based on
EPA-developed model training materials, the training program's
application for accreditation shall include:
    (A) A copy of the student and instructor manuals to be used for
each course.
    (B) A copy of the course agenda for each course.
    (vii) All refresher training programs shall include in their
application for accreditation the following:
    (A) A description of the facilities and equipment to be used for
lecture and hands-on training.
    (B) A copy of the course test blueprint for each course.
    (C) A description of the activities and procedures that will be
used for conducting the assessment of hands-on skills for each course
(if applicable).
    (D) A copy of the quality control plan as described in paragraph
(c)(9) of this section.
    (viii) The requirements in paragraphs (c)(1) through (c)(5), and
(c)(7) through (c)(14) of this section apply to refresher training
providers.
    (ix) If a refresher training program meets the requirements listed
in this paragraph, then EPA shall approve the application for
accreditation no more than 180 days after receiving a complete
application from the refresher training program. In the case of
approval, a certificate of accreditation shall be sent to the
applicant. In the case of disapproval, a letter describing the reasons
for disapproval shall be sent to the applicant. Prior to disapproval,
EPA may, at its discretion, work with the applicant to address
inadequacies in the application for accreditation. EPA may

also request additional materials retained by the refresher training
program under paragraph (i) of this section. If a refresher training
program's application is disapproved, the program may reapply for
accreditation at any time.
    (f) Re-accreditation of training programs. (1) Unless re-
accredited, a training program's accreditation, including refresher
training accreditation, shall expire 4 years after the date of
issuance. If a training program meets the requirements of this section,
the training program shall be re-accredited.
    (2) A training program seeking re-accreditation shall submit an
application to EPA no later than 180 days before its accreditation
expires. If a training program does not submit its application for re-
accreditation by that date, EPA cannot guarantee that the program will
be re-accredited before the end of the accreditation period.
    (3) The training program's application for re-accreditation shall
contain:
    (i) The training program's name, address, and telephone number.
    (ii) A list of courses for which it is applying for re-
accreditation.
    (iii) The name and qualifications of the training program manager.
    (iv) The name(s) and qualifications of the principal instructor(s).
    (v) A description of any changes to the training facility,
equipment or course materials since its last application was approved
that adversely affects the students' ability to learn.
    (vi) A statement signed by the program manager stating:
    (A) That the training program complies at all times with all
requirements in paragraphs (c) and (e) of this section, as applicable;
and
    (B) The recordkeeping and reporting requirements of paragraph (i)
of this section shall be followed.
    (vii) A payment of appropriate fees in accordance with Sec.
745.238.
    (4) Upon request, the training program shall allow EPA to audit the
training program to verify the contents of the application for re-
accreditation as described in paragraph (f)(3) of this section.
    (g) Suspension, revocation, and modification of accredited training
programs. (1) EPA may, after notice and an opportunity for hearing,
suspend, revoke, or modify training program accreditation, including
refresher training accreditation, if a training program, training
manager, or other person with supervisory authority over the training
program has:
    (i) Misrepresented the contents of a training course to EPA and/or
the student population.
    (ii) Failed to submit required information or notifications in a
timely manner.
    (iii) Failed to maintain required records.
    (iv) Falsified accreditation records, instructor qualifications, or
other accreditation-related information or documentation.
    (v) Failed to comply with the training standards and requirements
in this section.
    (vi) Failed to comply with Federal, State, or local lead-based
paint statutes or regulations.
    (vii) Made false or misleading statements to EPA in its application
for accreditation or re-accreditation which EPA relied upon in
approving the application.
    (2) In addition to an administrative or judicial finding of
violation, execution of a consent agreement in settlement of an
enforcement action constitutes, for purposes of this section, evidence
of a failure to comply with relevant statutes or regulations.
    (h) Procedures for suspension, revocation or modification of
training program accreditation. (1) Prior to taking action to suspend,
revoke, or modify the accreditation of a training program, EPA shall
notify the affected entity in writing of the following:
    (i) The legal and factual basis for the suspension, revocation, or
modification.
    (ii) The anticipated commencement date and duration of the
suspension, revocation, or modification.
    (iii) Actions, if any, which the affected entity may take to avoid
suspension, revocation, or modification, or to receive accreditation in
the future.
    (iv) The opportunity and method for requesting a hearing prior to
final EPA action to suspend, revoke or modify accreditation.
    (v) Any additional information, as appropriate, which EPA may
provide.
    (2) If a hearing is requested by the accredited training program,
EPA shall:
    (i) Provide the affected entity an opportunity to offer written
statements in response to EPA's assertions of the legal and factual
basis for its proposed action, and any other explanations, comments,
and arguments it deems relevant to the proposed action.
    (ii) Provide the affected entity such other procedural
opportunities as EPA may deem appropriate to ensure a fair and
impartial hearing.
    (iii) Appoint an official of EPA as Presiding Officer to conduct
the hearing. No person shall serve as Presiding Officer if he or she
has had any prior connection with the specific matter.
    (3) The Presiding Officer appointed pursuant to paragraph (h)(2) of
this section shall:
    (i) Conduct a fair, orderly, and impartial hearing within 90 days
of the request for a hearing.
    (ii) Consider all relevant evidence, explanation, comment, and
argument submitted.
    (iii) Notify the affected entity in writing within 90 days of
completion of the hearing of his or her decision and order. Such an
order is a final agency action which may be subject to judicial review.