U.S. Environmental Protection Agency

Lead; Fees for Accreditation of Training Programs and Certification of
Lead-based Paint Activities and Renovation Contractors

Response to Public Comments

February 2009

One commenter claimed that because the joint HUD/EPA renovator courses
appears to be the basis of the Renovation, Repair, and Painting Rule
initial and refresher training courses, the additional costs of any
modifications to this existing program should be minimal.

EPA would like to point out that the costs that the Agency is recovering
through the fees in the final rule do not include the cost of developing
the initial and refresher renovator trainings.  The fees recover costs
for other activities such as enforcement, managing the FLPP database and
reviewing applications. 

One commenter stated that, if EPA continued the lower fee for workers,
the Agency should not shift the costs from workers to training
providers.  

In the final rule, the Agency continued the lower fee for workers that
is $100 less than the fee for other individuals under the Lead-based
Paint Activities Regulations and spread the costs to training providers
and firms.  The Agency believes it is more equitable to shift fees to
training providers and firms to minimize the impacts on either group.

With regard to the lower fees for Tribes, one commenter asked what type
of supporting documentation must be submitted by the Tribe to determine
whether a firm is owned by a Tribe.

Tribal firms and employees will indicate their status with their
applications.

One commenter pointed out that the Lead-based Paint Activities
Regulations are not clear in regards to the Tribal certification fees
for individuals.  The commenter stated that the proposed regulations,
which read “Tribes (all disciplines),” implied that the $10 Tribal
certification fee covered multiple applications from a single person.  

	To address this comment and eliminate any possible confusion, the
Agency has changed the regulatory text that was in the proposed rule to
clarify that the $10 Tribal certification fee must be paid with each
individual application.  

Once commenter asked if a Tribal firm certified under the Renovation,
Repair and Painting program could perform renovations in both
EPA-administered Tribal jurisdictions and EPA-administered State
jurisdictions.  The commenter also wanted to know what would the fee be
for a Tribal certification in multiple states and Tribal lands..

	Under the Renovation, Repair and Painting Rule, firm certifications and
training provider accreditations are valid in all EPA administered
states and Tribal jurisdictions.  A Tribal firm would pay only the $20
certification fee to become certified to perform renovations in all EPA
administered states and Tribal lands.

One commenter asked for clarification of how the multi-jurisdiction fee
under the Lead-based Paint Activities Regulations is applied. 
Specifically, the commenter asked if an individual certified under the
Lead-based Paint Activities Regulations can work in both
EPA-administered Tribal jurisdictions and EPA-administered State
jurisdictions after paying an additional fee, how much the fee would be,
and if a Tribal employee who pays at $10 certification fee would have to
pay the $35 multi-jurisdiction fee.  

An individual that is certified under the Lead-based Paint Activities
Regulations can perform lead-based paint activities in another
jurisdiction by paying the $35 multi-jurisdiction fee.  The Agency did
not make any changes to multi-jurisdiction fee in this rulemaking. 
Therefore, an individual employed by a Tribe who pays a $10
certification fee would have to pay the $35 multi-jurisdiction fee to
work in an additional jurisdiction.  The Agency believes it is unlikely
that Tribal employees would need to work in additional jurisdictions
because their certification will allow them to work in all Indian Tribes
without authorized programs within a given EPA Region. 

One commenter asked if the certification of a Tribal employee is
contingent on continued employment by a Tribe.

An individual who qualifies for the $10 Tribal certification fee would
not have to pay the non-Tribal certification fee until that person must
re-certify in that discipline.

One commenter stated that the reduced Tribal certification fees could
create problematic administrative challenges to the Agency.

EPA disagrees that a reduced fee for Tribes will be problematic for the
Agency.  A Tribal firm or Tribal employee applying for certification
will indicate on the application that the firm or individual is part of
a Tribe.  This information will be put in the FLPP database along with
all the information EPA captures from applications.  The Agency believes
that this will be a simple process that will not pose any administrative
challenges. 

The Agency also solicited comment on how the fees should be adjusted for
other accreditations and certifications if they are lowered for state
and local government firms and individuals. One commenter stated that
fee should not be shifted to training providers because they have no
opportunity to recover these extra costs. 

EPA did not implement this lower fee and thus did not need to shift the
fees to other entities.  

The Agency solicited comment on how many State and local government
firms and individuals must comply with the Lead-base Paint Activities
regulations and the Renovation, Repair, and Painting rule.

One commenter responded to this but claimed that they were not in a
position to offer feedback. 

With respect to a reduced fee for state and local governments, one
commenter foresees few situations where a state or local government
health or environmental department would need to become a certified firm
to perform renovation or install interim controls.  

The Agency agrees that the number of state and local governments that
will have to apply for firm certification under the Renovation, Repair,
and Painting Rule will be small.     

One commenter contended that if the fees are too high for local
governments, then grants should be available to ensure the ability to
participate in the program.  The commenter further claims that it is
more equitable to establish fee reductions through grants, subsidies and
other economic incentives.

The Agency recognizes that States often need external support in the
development of their programs. However, the Agency does not give grants
or subsidies to State and local governments for the purpose of paying
federal fees.  

One commenter suggested that, if EPA lowers certification fees for firms
earning low revenues, the Agency should make it easy to enforce to keeps
costs down.  The commenter also suggested that EPA use an existing
threshold that exists within the Small Business Administration for
determining whether a firm qualifies for the lower fee.

The Agency did not lower fee for firms earning low revenues and,
therefore, no extra enforcement burden was put upon the Agency.

One commenter considered the fees for the Renovation, Repair, and
Painting Rule to be a “double taxation” for training providers,
firms and individuals already accredited and certified under the
Lead-based Paint Activities Regulations.  

For several reasons, the Agency disagrees with the commenter that
training providers, firms and individuals have to needlessly pay a
“double” fee.  In each case, the fee covers the cost of processing
the application itself as well as related enforcement costs—there is
no “double” charge.  Moreover, individuals do not pay a separate fee
to EPA to become certified under the Renovation, Repair, and Painting
Rule.  Under that rule, renovators and dust sampling technicians do not
apply to EPA for certification negating the need for EPA to charge them
fees.  Rather, the training certificate serves as the individual’s
certification.  In addition, the Agency decided to asses a single fee of
$550 for firms that apply for certification under the Lead-based Paint
Activities Regulations and the Renovation, Repair, and Painting Rule on
a single application.  Finally, the fees charged for training provider
applications recover the costs to EPA to review and process the
application and review new renovator and/or dust sampling technician
training course materials.  EPA is obligated to recover costs such as
these through its accreditation fees.

	EPA requested comment on whether the enforcement and Headquarters
administrative costs should be apportioned this way to make the revised
fees being proposed in this document more consistent with the existing
fees for the Lead-based Paint Activities Regulations.  The Agency
received one comment on this.  The commenter opposed this stating that
there is no basis for apportioning costs solely to generate fees similar
to the original fees for the Lead-based Paint Activities Regulations.

The Agency agrees that the fees should not be apportioned consistent
with the original fees for the Lead-based Paint Activities Regulations,
but rather apportioned to reflect the cost to EPA for each application. 
The final rule contains fees based on the cost to EPA of each type of
application with certain adjustments such as the lower fee for abatement
workers.

Three commenters expressed opposition to combining the costs for the
Lead-based Paint Activities Regulations and Renovation, Repair, and
Painting program.  Doing so would yield accreditation, re-accreditation,
firm certification, and firm re-certification fees that are the same for
both programs.  One commenter claimed that the programs should be
separate because they may be administered in separate agencies or
administrative entities.  Another commenter contended that the
Renovation, Repair, and Painting program should be evaluated on its own
because it is a new program with many unknowns.  

The Agency has decided to finalize the rule as proposed by not combining
fees for the Lead-based Paint Activities Regulations and Renovation,
Repair, and Painting program.  

One commenter contended that the cost of the Federal Lead-Based Paint
Program (FLPP) database is excessive.  The commenter claims that EPA
should use commonly available database software instead in order to
lower costs.  However, the commenter does not give examples of software
that EPA should use, the costs associated with such software, or if it
will meet the needs of the program.

The Agency disagrees with this commenter.  EPA believes that the cost to
maintain the FLPP database is reasonable considering that it must
process thousands of applications annually.  Further, the Agency
believes that the transition to the FLPP database and the associated
centralized data processing has resulted reduced costs EPA. 

EPA received one comment on the section in the preamble to the proposed
that listed the North American Industry Classification System (NAICS)
codes of entities potentially affected by the rule.  The commenter
stated the term "professional" is a term that is generally reserved for
protected titles such accountants, mechanical engineers, architects,
etc, but not people who perform lead abatements.  The commenter would
like the preamble to say “lead abatement contractors and
professionals.”

The Agency agrees with the commenter and has changed to preamble to read
“lead abatement contractors and professionals.” 

One commenter provided EPA with an estimate of the number of lead
abatement and asbestos contractors in the state of California that may
apply for certification under the Renovation, Repair, and Painting Rule.
 

EPA would like to thank the commenter for the information.  

One commenter asked for clarification of how the multi-jurisdiction fee
under the Lead-based Paint Activities Regulations is applied. 
Specifically, the commenter asked if an individual certified under the
Lead-based Paint Activities Regulations can work in both
EPA-administered Tribal jurisdictions and EPA-administered State
jurisdictions after paying an additional fee, how much the fee would be,
and if a Tribal employee who pays at $10 certification fee would have to
pay the $35 multi-jurisdiction fee.  

	An individual that is certified under the Lead-based Paint Activities
Regulations can perform lead-based paint activities in another
jurisdiction by paying the $35 multi-jurisdiction fee.  The Agency did
not make any changes to multi-jurisdiction fee in this rulemaking. 
Therefore, an individual employed by a Tribe who pays a $10
certification fee would have to pay the $35 multi-jurisdiction fee to
work in an additional jurisdiction.  The Agency believes it is unlikely
that Tribal employees would need to work in additional jurisdictions
because their certification will allow them to work in all Indian Tribes
without authorized programs within a given EPA Region. 

The Agency solicited comment on whether the numerical estimates of the
numbers of lessors and property managers that will require firm
certification under the Renovation, Repair and Painting Rule. 

Only one commenter responded and stated that they did not have a
specific basis to challenge EPA's estimate and that EPA should get input
from other trade associations.  

One commenter claimed that the estimate of enforcement cost is
understated and the share of fees set aside for administrative costs
should be designated for enforcement infrastructure.

EPA disagrees that the enforcement costs are understated.  The
enforcement cost estimates for the Lead-based Paint Activities
Regulations were generated based on the actual resources currently
allocated for enforcement under that program.   EPA is not currently
conducting enforcement activities related to the Renovation, Repair, and
Painting program, so the enforcement costs for the program must be
estimated based on projected EPA resources to be devoted to enforcement
of the program, rather than on actual enforcement activities.  EPA also
disagrees that administrative costs should be designated for
enforcement.  EPA would like to point out that administrative and
enforcement costs are used to determine the fees EPA will charge but the
fees paid by the regulated community are not received by the Agency. 
All of the fees go to the U.S. Treasury, not EPA.  Thus, EPA can not
allocate fees paid by the regulated community toward its enforcement
costs.

One commenter stated that if the fees are intended to be a user fee then
the fees should be charged according to use of the program.  

As required by section 402 of TSCA, the Agency must collect fees to
recover the cost of administering these programs.  

One commenter contended that EPA should encourage reciprocity among
states to make it easier for contractors and training providers to
acquire accreditation and certification in multiple authorized states.

EPA agrees that reciprocity among authorized State, Territorial, and
Tribal programs, and with the Federal program, is preferable. However,
authorized programs have some latitude to customize their program,
including with respect to reciprocity, provided they are as protective
as the federal program and contain the same basic elements listed in 40
CFR § 745.326 and § 745.327.

One commenter stated that EPA should remove the exemption for training
provider accreditation fees for non-profits.  The commenter claims that
this exemption gives non-profit organizations a competitive advantage.

Section 402 of TSCA exempts non-profit and other organizations from
paying training provider accreditation fees.  The Agency does not have
the ability to alter this statutory exemption.

One commenter claimed that individuals certified under the Lead-based
Paint Activities Regulations should not have to get certification under
the Renovation, Repair, and Painting Rule because they are already
qualified.  

The Agency appreciates the commenter’s recommendations but notes that
today’s rulemaking does not address the certification requirements for
individuals under the Renovation, Repair, and Painting Rule, it merely
establishes the fees that will be paid by firms and training providers
under the rule.  

One commenter contended that there should be an exemption for EPA and
State accredited training providers that are accredited under the
Lead-based Paint Activities Regulations when they apply to become
accredited to teach the renovator training.  This commenter claims that
the trainings required under this program are much more rigorous than
the renovator training. Because these training providers have been
accredited to a higher standard they should be able to teach the
renovator course under their current accreditation.  

EPA does not believe that there should be an exemption for accredited
training providers that apply for accreditation under the Renovation,
Repair, and Painting Rule.  The fees charged for training provider
applications cover the costs for EPA to review and process the
application, review training course materials and conduct site visits to
training facilities.  EPA is obligated recover costs such as these
through its accreditation fees.

One commenter contended that for the Renovation, Repair, and Painting
Rule to be effective in reducing childhood lead poisoning it will
require certified professional remodeling firms to perform renovations,
not part-time handymen, and for that reason, the commenter opposes any
reduced fees for firms earning below $25,000 in annual revenue.  The
commenter further states that a firm certification fee of $300 is not
burdensome to any reputable firm. However, if a firm will not pay–or
is unable to pay–the $60 per year over the five year certification, it
is unlikely to pay $20 a year under a reduced fee. 

The Agency appreciates the comment.  After considering the reduced fee
and the comments regarding the fee, EPA decided not to lower fees for
firms earning below $25,000 in annual revenue.  Regarding yearly cost to
firms, the Agency does not know how likely it is that a firm won’t pay
$20 per year for certification if it is unwilling to pay $60 per year.

A variety of comments were submitted that were unrelated to the proposed
rule.  Some commenters asked for clarification of program requirements
(either the Lead-based Paint Activities Rule or Renovation, Remodeling,
and Painting Rule) while others commented on issues addressed in past
rulemakings.  The list below summarizes these comments and questions.

Why is there a difference between the two definitions of firm under
Lead-based Paint Activities Regulations and the Renovation, Repair, and
Painting Rule?  

Can individuals certified under the Lead-based Paint Activities
Regulations provide the service without being employed by a certified
firm?  What standing does a report generated by a certified individual
certified who does not work for a certified firm?

The current application for firms has a field for business address. 
However, there is no assurance that this is the same address as the
location of the records generated by the firm or individuals working for
the firm.  

What is the criteria the regulated community to use to determine whether
there is a change in ownership?  When a firm is sold, EPA should allow
the firm’s certification to be transferred as an asset instead of
requiring the firm to certify under the new ownership.

The decision to forego collection of fees for certified renovators and
sampling technicians is correct. 

Exemption from training accreditation fees for non-profit and
government-operated training firms is proper, consistent with Title X. 

Accreditation and certification schedules should be the same for
everyone.  

It appears as if in this rulemaking in this fee change, and the
Renovation, Repair, and Painting Rule, that the "home builders
associations", and "Contractor associations" were taken into account.

An accredited abatement contractor can do lead renovations. Does a lead
abatement trainer, need to accredited for another class while a
certified abatement individual can do lead renovations without getting
another certification?

The Agency appreciates these comments and questions.  However, these
comments are directed at the requirements of the Lead-based Paint
Activities Regulations and the Renovation, Repair, and Painting Rule,
not the certification and accreditation fees.  Because they are not
comments on the proposed rule, they will not be addressed in this
rulemaking.  Rather, EPA will address comments and questions like these
in other forums outside of this rulemaking.

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