In this Section:

J1. EFFECTIVE DATE AND GRANT PAYMENT DATABASE: What are the lead-based paint rule effective dates for the HOME, CDBG, and State & Small Cities CDBG programs?

HOME Program

The regulation states that the new requirements apply to funds committed to a specific local project on or after September 15, 2000. The date of commitment to a specific project would coincide with the execution of a written agreement to acquire, rehabilitate or construct a project or to provide TBRA. (Commitment to a specific local project is a defined term under 24 CFR 92.2(2)). This means that funds that were committed through CHDO reservations or commitments to State or subrecipients BEFORE 9/15/2000, may still be subject to the new requirements to the extent that commitments to specific local projects are made under those agreements AFTER 9/15/2000.

CDBG Entitlement

As with the HOME Program, the effective date of the lead-based paint rule is September 15, 2000. When trying to determine if your CDBG-assisted project is subject to the new lead-based paint requirements, recall that the CDBG Entitlement program defines the effective date as the date when CDBG funds are contracted for a specific project. So, when the grantee signs a rehabilitation contract with a homeowner for a specific house, that's the "trigger date". If the trigger date is after September 15, 2000, the project is subject to the new lead-based paint hazard reduction requirements. Logging funds into IDIS is not the triggering action. If the grantee chooses a subrecipient to administer its home rehabilitation programs, the triggering action is the date the subrecipient signs a contract with a homeowner/property owner. If the grantee administers its own rehabilitation program, the funds are obligated on the date the rehab work contract is signed.

CDBG State Program

The effective date is the date the State or HUD (as applicable) awards funds to a local government. In the State program, the new regulatory provisions should apply to grants which the State awards to units of local government on or after 9/15/00. In the State CDBG program, "award" means an official announcement (e.g. Press Release, Governor's "big check" ceremony, issuing a 'congratulations you won' letter to the town), or issuing a grant agreement--whatever action comes first that represents an official announcement or obligation of funding by the state. If, for example, a State awards a CDBG housing rehab grant to City A on 9/14/00, and awards a CDBG housing rehab grant to County Q on 9/16/00, Q's grant is subject to the new rule but A's grant is not. The date on which a local government signs an agreement with some subrecipient (like a CAP agency) to administer its State CDBG grant for them is irrelevant.

CDBG Insular Areas Program and HUD-Administered Small Cities Program in Hawaii

In the Insular Areas program and the HUD Administered Small Cities Program in Hawaii, the new regulatory provisions apply to grants which HUD awards on or after 9/15/00. [New York will administer the State CDBG program starting in FY2000. ] HUD-Administered Small Cities grants awarded by HUD in FY1999 and earlier are not subject to the requirements of the new rule, unless a community is jointly funding activities using a combination of HUD Small Cities grant funds and funds from other programs which would be subject to the new provisions.

J1a. STATE CDBG AND REHABILITATION FUNDED WITH CDBG PROGRAM INCOME: If a grantee uses program income from a State CDBG grant awarded before September 15, 2000, does the new LBP rule apply?

It depends. For State CDBG grantees who operate CDBG rehabilitation programs:

1. Program income generated from and used to continue rehabilitation activities for which funds were awarded by the state prior to 9/15/2000 is not subject to the new rule, as long as the state grant recipient does not receive additional funding for the same activities from the state after 9/15/2000.

2. Program income generated from activities for which funds were awarded by the state prior to 9/15/2000, but which are subsequently attributed to or used in conjunction with/to continue activities for which funding was awarded by the state on or after 9/15/2000 is covered by the new rule as of the date of award of the subsequent state funding.

3. Program income generated from activities which are not subject to the LBP requirements, but for which the state grants approval on or after 9/15/2000 to use for activities which are subject to LBP requirements is subject to the new rule as of the date of state approval to use them for covered activities

J2. If I am conducting rehabilitation with Federal assistance covered by subpart J of the regulation, is it necessary that the abatement work be done by a certified lead paint abatement contractor?

Only if the rehabilitation is more than $25,000 per unit. If the level of Federal assistance for a rehabilitation project is no more than $25,000 per unit, use of a certified abatement contractor (or certified abatement workers and a certified abatement supervisor) is not required by Federal regulation. (The amount of Federal assistance per unit is calculated in accordance with section 35.915, as described in question J3, below.) Rather, persons performing interim controls of lead-based paint hazards or standard treatments must be trained in the use of lead-safe work practices, using courses described in section 35.1330(a)(4), or they must be supervised by a certified abatement supervisor. Also, the property must pass clearance after completion of rehabilitation, interim controls or standard treatments. If the level of Federal assistance is more than $25,000 per unit, however, use of a certified abatement contractor (or certified workers and supervisor) is usually required because the HUD regulation requires abatement of lead-based paint hazards (see also R25).

J2. If I am conducting rehabilitation with Federal assistance covered by Subpart J of the regulation, is it necessary that the rehabilitation work be done by a certified lead paint abatement contractor?

Those parts of the rehabilitation that are conducted with the express intent to permanently eliminate lead-based paint hazards, particularly those documented in HUD regulations, job specifications, cost allocation document, or local agency or court order requiring abatement, must be done by a certified lead-based paint abatement contractor. HUD also requires abatement when Federal rehabilitation assistance exceeds $25,000 per unit, and interim controls when costs are between $5,000 and $25,000. Costs are calculated as described in question J3 below. Abatement is an option when costs are less, but is not required by HUD. Regardless of whether or not abatement or interim controls is conducted, occupant protection, lead-safe work practices, and clearance are required whenever lead-based paint hazards are above de minimis levels (see the joint HUD/EPA letter of April 19, 2001 at www.hud.gov/offices/lead).

J3. CALCULATION OF AVERAGE FEDERAL ASSISTANCE AND AVERAGE REHABILITATION COSTS: In the instructions in section 35.915 for calculating the Federal rehabilitation assistance per unit for a given project, what is "rehabilitation assistance?" Does it include Federal funds to acquire a property that is to be rehabilitated? If so, please explain how the calculation is made for a multifamily property.

Section 1012(a)(3) of Title X amended the Lead Based Paint Poisoning Prevention Act to require, among other things, that procedures established by HUD require "reduction of lead-based paint hazards in the course of rehabilitation projects receiving less than $25,000 per unit in Federal funds" . . . and "abatement of lead-based paint hazards in the course of substantial rehabilitation projects receiving more than $25,000 per unit in Federal funds" (emphasis added). This statutory language allows for the fact that Federal funds are used to assist various costs associated with rehabilitation projects. For example, Federal assistance is often used for acquisition or soft costs associated with rehabilitation. Such projects are considered rehabilitation projects for program purposes, regardless of the specific costs paid with Federal funds. To ensure that both the level of average Federal assistance per unit and the extent of rehabilitation are accurately measured for purposes of triggering lead-based paint requirements, the regulation calls for a dual-threshold method of the applicable set of lead-based paint requirements for a rehabilitation project.

Under the dual-threshold approach to calculating the level of rehabilitation assistance, the designated party makes two calculations and uses the lesser of the two to determine the applicable requirements. One calculation is of average Federal assistance per unit; the other is of average rehabilitation hard costs per unit, regardless of whether the source of funds is Federal or non-Federal.

For the purpose of calculating average Federal assistance per dwelling unit, Federal assistance per unit includes all Federal funds, including program income generated by Federal funds are counted.  (Note: Proceeds of the sale of Low-Income Housing Tax Credits and proceeds from rehabilitation mortgage insurance, such as a 203(k) loan are not considered Federal assistance for this purpose. Funds provided under the Department of Energy's Weatherization Program are not counted as Federal assistance or covered by this regulation because it is not considered a housing assistance program. However, Weatherization performed with CDBG and HOME funds is covered by the regulation and therefore should be included when calculating average Federal assistance).  All Federal funds must be included in this calculation regardless of how the Federal funds are used in the project. For example, in a project involving acquisition and rehabilitation, all Federal funds received by the project are included in the calculation even if the Federal funds were used to pay for the acquisition or other non-rehabilitation costs.

The average Federal assistance per unit is the total Federal assistance divided by the total number of federally assisted dwelling units in the project.

The average rehabilitation hard costs per dwelling unit are the actual costs, regardless of the source of funds, associated with the physical development of a unit (i.e., total per unit project costs minus "soft" costs, administrative costs, relocation costs, environmental review costs, acquisition costs, etc.), not including lead hazard evaluation and reduction costs. Soft costs include financing fees, credit reports, title binders and insurance, recordation fees, transaction taxes, impact fees, legal and accounting fees, appraisals, architectural and engineering fees. Lead hazard evaluation and reduction costs include costs associated with site preparation, occupant protection, relocation, interim controls, abatement, clearance, and waste handling attributable to lead-based paint hazard reduction.

If all the units in a multi-unit project are Federally-assisted, the average rehabilitation hard cost is calculated as follows:

Average Per Unit Rehab Hard Cost =Total rehab hard costs for project/Total number of units

For multi-unit projects with both Federally-assisted and non-assisted units, calculate the total rehabilitation hard costs per unit using the following formula:

a/c + b/d,

where:

a = Rehabilitation hard costs, as defined above, for all assisted dwelling units (not including common areas and exterior surfaces),

b = Rehabilitation hard costs, as defined above, for common areas and exterior surfaces,

c = Number of federally assisted dwelling units in the project, and

d = Total number of dwelling units in the project.

Example: A 20-unit property is undergoing rehabilitation. Total rehabilitation hard costs for the project are $650,000, including $150,000 for repairs to the exterior and common areas of the building, $250,000 to rehabilitate 10 HOME-assisted dwelling units, and $250,000 for repairs to the unassisted units. The average rehabilitation hard costs per unit are:

 $250,000/10 units + $150,000/20 units = $25,000 + $7,500 = $32,500 per unit.

(Remember that the above formula applies to the calculation of the average rehabilitation hard costs per unit, not to the Federal funds per unit.)

The category into which a rehabilitation job falls is determined by the lesser of the two threshold numbers (i.e., average Federal assistance per unit or average rehabilitation hard costs per unit.)

If, in the example above, total Federal assistance to the project is $200,000, then the applicable requirements would be those for the $5,000 - $25,000 category. (Average Federal assistance per unit ($20,000) would be the lesser number and would determine the applicable requirements).

If in the example, total Federal assistance to the project is $300,000, then the applicable requirements would be those for the over $25,000 category. (Averge Federal assistance per unit ($30,000) is again the lesser number and would determine the applicable requirement).

J3a. CALCULATING AVERAGE REHABILITATION HARD COSTS FOR SINGLE-FAMILY PROPERTIES: Can you clarify the average Federal assistance and average rehabilitation cost for single-family properties. How do I use the dual threshold approach if I'm only rehabilitating one unit?

Average Federal assistance per unit

For the purpose of calculating Federal assistance per dwelling unit, Federal assistance includes all Federal funds, including program income generated by Federal funds.

The per unit Federal assistance is the total Federal assistance divided by the total number of federally assisted dwelling units in the project.

Example 1: The city spends $40,000 of CDBG funds to rehabilitate a single family home. The city is rehabilitating one home. The per unit federal assistance for this project will be $40,000 divided by 1, or $40,000.

Total Federal Assistance/Number of dwelling units = Avg. Federal Assistance/Unit

$40,000/1 = $40,000

Average rehabilitation cost per unit

Example 1a: Using the same example of the city rehabilitating a single family home, the hard costs of rehabilitation for the home is $35,000. The average rehabilitation cost per unit will be $35,000 divided by 1, or $35,000.

Total Rehab Hard costs for project/Total number of units = Avg rehab. cost per unit

$35,000/1= $35,000

Applying the Dual Threshold Calculation

The category into which a rehabilitation job falls is determined by the lesser of the two threshold numbers (i.e., Federal assistance per unit or the rehabilitation hard costs per unit.)

In the single family home example, the total federal assistance to the project was $40,000; the average per unit rehabilitation hard cost was $35,000. The average per unit rehabilitation hard cost ($35,000) is the lesser of the two numbers and therefore the lead-based paint rehabilitation requirements for projects with greater than $25,000 of rehabilitation assistance apply.

J4. CHANGE ORDERS: How does a change order affect the level of assistance in a rehabilitation project for the purposes of the regulation?

HUD recognizes that unanticipated change orders are common in rehabilitation projects. Therefore, the Department will not require a recalculation of the level of assistance for the purposes of the lead-based paint regulation, and thus will not require a change in the category of lead-based paint requirements, as a result of a change order; except that if a pattern is found that indicates an obvious abuse of this policy to avoid the more protective requirements, the Department will find the designated party in noncompliance.

J5. SUBTRACTION OF LEAD HAZARD REDUCTION COSTS: To what extent can designated parties subtract the cost of lead-based paint hazard reduction activities in calculating the "hard costs of rehabilitation," which are used to determine which category of Federal rehabilitation assistance a particular project belongs to (i.e., up to and including $5,000, more than $5,000 and up to and including $25,000, or more than $25,000 per unit)?

Designated parties can subtract costs of lead-based paint hazard reduction from the total cost of a project to determine the category of rehabilitation assistance in which the project belongs, but they should not subtract costs of rehabilitation they would have done anyway, in the absence of the regulation. To be subtracted, costs should be clearly and reasonably attributable to lead-based paint hazard reduction.

Section 35.915(b)(2) states that, "the amount of rehabilitation assistance is the average per unit amount of Federal funds for the hard costs of rehabilitation, excluding lead-based paint hazard evaluation and hazard reduction activities. Costs of site preparation, occupant protection, relocation, interim controls, abatement, clearance and waste handling attributable to lead-based paint hazard reduction are not to be included in the hard costs of rehabilitation." The intent of this provision is explained in the "preamble" to the regulation, where it states that "determination of the category of assistance . . . will be based on the hard costs of ordinary rehabilitation, not including the additional costs of complying with this rule" (64 FR 50174, emphasis added). The term "lead-based paint hazard reduction" does not include rehabilitation activities that would have been conducted in the absence of the regulatory requirements.

For each lead-based paint hazard reduction activity for which costs are subtracted, designated parties should: (1) document what the activity is, its scale or extent, and where in the building it is conducted, (2) document that the surface affected is a known or presumed lead-based paint hazard prior to the rehabilitation, (3) document that the activity is a reasonable and acceptable method of eliminating or controlling the hazard, and (4) determine that the cost of the activity is reasonable.

The most authoritative way to provide documentation of items 1 through 3 above is to conduct a risk assessment of the subject property before the rehabilitation. The risk assessment report should document the nature and location of the hazard and should indicate acceptable methods for controlling the hazard. Paint testing results may also be helpful.

If the standard treatments option is taken, the designated party should record the results of a visual assessment that documents the conditions being treated, e.g., deteriorated paint; rough, pitted or porous horizontal surfaces; and bare soil. These conditions become presumed lead-based paint hazards. Remember that standard treatments must be conducted throughout the assisted part of the property, including common areas, because the option is in lieu of a risk assessment and interim controls, which is a property-wide requirement.

The most questionable way to establish the existence of lead-based paint hazards is to presume their existence without any risk assessment, paint testing or lead-based paint inspection, and without taking the standard treatments option. Much old paint is not lead-based paint. However, a presumption may be acceptable if a designated party has a sound factual basis for it, such as positive paint testing data from similar surfaces on the same property or on structures of a similar construction period in the same neighborhood, combined with a documented visual assessment finding deteriorated paint on the subject surfaces. Guidance on this approach is given in the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing.

In deciding whether activities qualify as lead-based paint hazard reduction activities, remember that intact lead-based paint is generally not considered a hazard. Therefore, if you are, for example, removing an interior partition on which the paint is intact, you should not classify that activity as lead-based paint hazard reduction even if the partition has lead-based paint on it. It is also important to apply the reasonableness test to activities in which paint disturbance is only ancillary to the task. For example, do not allocate the cost of a furnace replacement to lead hazard reduction because it happens to include repair and repainting a partition with deteriorated lead-based paint. Do not allocate the cost of roof repair to lead hazard reduction because the job includes replacement of fascia or soffits with deteriorated lead-based paint.

Window replacement or repair is a rehabilitation activity that can sometimes be attributable to lead-based paint hazard reduction, but only if the windows would not be replaced as part of the rehabilitation project. If the windows are deteriorated and would have been replaced regardless of the presence or absence of lead-based paint, they are rehabilitation costs, not lead hazard reduction costs, and cannot be subtracted in calculating the level of assistance for the purposes of the regulation.

J6. ROOF REPAIR AND LEAD HAZARD CONTROL COSTS: A leaky roof is causing damage to lead-based paint. Since controlling the lead hazard involves fixing the roof, does the roof repair count as a lead hazard control cost? Can that be subtracted from the rehabilitation hard costs?

A leaky roof has many other code implications beyond lead safety. Fixing the roof, while it contributes to controlling the lead hazards, does not constitute hazard reduction in and of itself.

J7. DE MINIMIS AREAS AND PAINT TESTING/CLEARANCE REQUIREMENTS: The regulation states, at section 35.1350(d), that if the area of painted surfaces being disturbed totals no more than a specified de minimis level, safe work practices are not required. Does this mean that paint testing and clearance are also not required?

There is no need to perform paint testing if the job is exempt from safe work practices. Clearance is not required in this situation (see either section 35.930(b)(3) or 35.1340(g)).

J8. DE MINIMIS AREA OF PAINT DISTURBANCES: If the calculated category of Federal rehabilitation assistance is, say, $10,000, but the amount of paint being disturbed is minor, affecting an area of less than the de minimis for safe work practices stated at section 35.1350(d), is it still necessary to conduct a risk assessment and interim controls?

Yes. If paint is being disturbed, the project is covered by the regulation, and then the requirements for lead-based paint hazard evaluation and reduction are based on the level of assistance, not the amount of paint being disturbed. Work on surfaces where the amount of paint disturbed is below the de minimis level does not have to use safe work practices, although HUD recommends that caution be used to minimize the dispersal of lead in dust, paint chips, or debris.

J9. PAINT TESTING FOR REHABILITATION OVER $5,000: Why does the regulation require a risk assessment and paint testing for rehabilitation projects over $5,000? Isn't paint testing included as part of a risk assessment?

The statute requires an inspection to determine the presence of lead-based paint. A risk assessment is required to identify lead-based paint hazards which the law requires be abated. A risk assessment usually includes paint testing of a sampling of deteriorated painted surfaces, plus dust and soil testing. The paint testing requirement is for all deteriorated painted surfaces plus all painted surfaces to be disturbed or replaced during rehabilitation.  However, there is no need to retest painted surfaces that have already been tested to comply with the risk assessment or paint testing requirements of the rehabilitation subpart.

J10. EXEMPTIONS AND PROJECT REHABILITATION COSTS: Does the exemption for rehabilitation that does not disturb a painted surface (at section 35.115(a)(8)) apply regardless of the project cost?

Yes.

J11. FUNDS FROM FEDERAL AGENCIES OTHER THAN HUD: When calculating Federal assistance per unit, should I include funds from all Federal agencies?

Yes, but only if the Federal program is considered a housing assistance program. The Department of Energy Weatherization program is not considered a housing assistance program.

J12. VOLUNTEER PAINT PROGRAM APPLICABILITY: Does subpart J apply to "paint programs," in which paint is distributed, or funds are provided to purchase the paint, so homeowners or volunteers can paint their homes? What if the program provides only $250 worth of paint in-kind?

Paint programs are rehabilitation programs as specified in a CPD memo on "Classification of Paint Programs," dated July 13, 1992. Therefore, they are subject to the requirements of subpart J if the paint is being purchased with funds provided under a program covered by subpart J, such as the Community Development Block Grant program, and if painted surfaces are being disturbed by scraping, sanding or other abrasive methods during preparation of the surfaces for repainting. (HUD does not consider washing of painted surfaces, by itself, to constitute disturbance of painted surfaces, unless the treatment is water blasting.)

Because $250 in funds is less than $5,000, the threshold for interim controls, the lead-based paint requirements for this work include safe work practices and clearance of the worksite. It makes no difference if the program provides the paint in-kind or the funds to purchase the paint.

Surface preparation before repainting is an activity that can generate a significant amount of lead dust if the paint is lead-based paint. Occupants as well as workers can be exposed to significant levels of dust, and interior and exterior environments can be contaminated. It is important, therefore, that safe work practices, as set forth in §35.1350, be used and that worksite clearance be achieved to assure that the site is not left contaminated with lead dust or contaminated debris. See HUD's Fact Sheet of March 2000 on Federal Requirements for Volunteer Paint and Rehabilitation programs, which can be found at HUD's web site at www.hud.gov/lea, or obtained from HUD at 1-202-755-1785 ext. 104 (this is a toll call).

J13. VOLUNTEER PAINT PROGRAM REQUIREMENTS: What are the exact requirements that apply to paint programs?

Most, if not all, of the repainting assisted by paint programs will have a Federal assistance cost of no more than $5,000 per dwelling unit, so the requirements of section 35.930(b) will apply. Those requirements are basically that safe work practices must be followed in the course of the surface preparation and repainting and that clearance of the worksite must be achieved. However, safe work practices and clearance are not required if the area of paint being disturbed is no more than 20 square feet on exterior surfaces, 2 square feet in any one interior room, or 10 percent of the total surface area on an interior or exterior component with a small surface area (such as window sills, baseboards or trim). If the area of paint disturbance is expected to be greater than those areas, there is a requirement that either surfaces to be disturbed must be tested for the presence of lead or the presence of lead-based paint must be presumed.

If the paint to be disturbed is tested and found not to be lead-based paint, safe work practices and clearance are not required, although safe work practices are always good practice because there may be some lead in the paint even if it is not at the defined level of "lead-based paint." If the paint is tested and found to be lead-based paint or if it is presumed to be lead-based paint, safe work practices must be implemented during the surface preparation and repainting, and a clearance examination must be conducted of the area where the surface preparation and repainting occurred and clearance must be achieved.

Safe work practices are as follows (as listed at section 35.1350): (1) prohibited methods of paint removal (listed in section 35.140) shall not be used, (2) occupants and their belongings shall be protected in accordance with section 35.1345, and (3) specialized cleaning shall be conducted after completion of the work to assure that clearance will be achieved.

The regulation does not require that persons performing repainting or other rehabilitation activities that are covered by section 35.930(b), which is the no-more-than-$5,000 category, be supervised or formally trained in accordance with the requirements for interim controls workers at section 35.1330(a)(4). Nevertheless, safe work practices must be followed, clearance of the worksite must be achieved, and designated parties are responsible for assuring compliance with these requirements.

However, HUD recommends that designated parties (i.e., grantees, participating jurisdictions, sub-recipients) arrange for homeowners and volunteers to take a short course on safe work practices for repainting. Adaptations can be made from the approved courses listed in section 35.1330(a)(4) (see Question S5 for information on availability of course materials), or a course can be adapted from the booklet, "Lead Paint Safety: A Field Guide for Painting, Home Maintenance, and Renovation Work," which can be obtained by calling 1-800-424-LEAD, or downloaded from the HUD web site, www.hud.gov/lea. The objectives of such brief training should be to acquaint people with the following topics: (1) why one should be concerned about lead-based paint hazards; (2) how to prepare surfaces for repainting without using the prohibited practices of paint removal; (3) how to protect occupants, their belongings, the worksite, and the rest of the home from lead contamination by using polyethylene ("poly") or other floor coverings; (4) how to clean up after the work in order to achieve clearance; and (5) the importance of achieving clearance.

With regard to clearance, HUD suggests that designated parties arrange for persons who are certified to perform clearance examinations to be available for clearance of participating homes, with the cost being paid by the program. There are several ways this could work. The local housing or public health agency could have certified personnel on staff who could perform the clearance for free. Alternatively, owners or volunteers might be provided with a list of clearance examiners; they could arrange for the clearance examination directly and then present the clearance examiner's bill to the designated party, along with a copy of the clearance report showing that the worksite passed clearance.

J14. FUNDING OF PAINT PROGRAM COORDINATORS: If a grantee is using CDBG funds to support a project coordinator to oversee volunteers who are doing rehabilitation work, is the project subject to the regulation? If so, how are the costs covered, since no funds flow to the rehabilitation project?

If the project coordinator has hands on, day-to-day control over the actual work being performed by volunteers at a project site, then Federal funds would be deemed to used for rehabilitation activities and 24 CFR 35, Subpart J would apply. However, if the project coordinator only performs rehabilitation services (24 CFR 570.202(b)(9)), such as the general administration of a volunteer program or the preparation of work specifications, then 24 CFR Part 35, Subpart J would not apply because these are considered soft costs.

J15. SWEAT EQUITY PROGRAMS: Are sweat equity programs covered by the regulation?

Yes, if Federal funds are being used to pay for labor and materials (hard costs). In such a case, sweat equity workers must meet the same requirements as other workers and must conduct their work using safe work practices.

J16. GRAFFITI REMOVAL: Is a graffiti removal program considered rehabilitation?  Is it residential? What if the homeowner does it him/herself?

Graffiti removal is rehabilitation, although some removal may be exempted from the rule, as discussed below.  The exterior of a home, fences, and out buildings are all considered part of the residential property, therefore they are covered by the lead-based paint rule. Even if the homeowner does the work personally, the work is still subject to the lead-based paint requirements if there is Federal assistance. See the question above on sweat equity.

However, most graffiti removal may be exempted because it disturbs no painted surfaces (such as when simply painting over graffiti), or the surface can be tested to show that the graffiti (and paint underneath the graffiti) is not lead-based paint. If the work is not exempt for those reasons, the area of paint being disturbed in graffiti removal will often be no more than 2 square feet or 20 square feet, on large interior or exterior surfaces, respectively, which are the de minimis levels for safe work practices, so safe work practices and clearance would not be required.

J17. FACADE RENOVATIONS: If CDBG or HOME funds are used to renovate the façade and the sign of a mixed-use building, is this covered by the regulation?

Yes. If the façade is the exterior of the residential units, then this would be considered residential rehabilitation and would be subject to the requirements of Subpart J. If the sign is in an area accessible to residents of the building, it too would be covered.

J18. USE OF CDBG AND HOME FUNDS FOR TRAINING AND OTHER LEAD-RELATED EXPENSES: Can grantees use CDBG and HOME funds to train contractors or landlords to perform lead hazard evaluation or reduction? Can CDBG and HOME funds be used to purchase and XRF analyzer?

Training contractors or landlords is eligible as a rehabilitation service under the CDBG regulations at 24 CFR 570.202(b)(9) or as an administrative expenses under 24 CFR 570.206. Under the HOME program, landlord or contractor training is eligible as an administrative expense under 24 CFR 92.207 or as a project delivery cost under 92.206(d).

CDBG and HOME funds can also be used to pay for an XRF analyzer (a device used to measure the lead content in paint) under the eligibility category of 24 CFR 570.202(b)(9), Rehabilitation Services for CDBG, and 24 CFR 92.206(d) for the HOME program.

J19. HOME MATCH ELIGIBLE HOUSING: If a project is not receiving Federal assistance, but contributions toward the project are being counted as match for HOME Program purposes, do the lead-based paint rules apply?

No. While HOME-match eligible projects are subject to the HOME property standards, Part 35 does not apply. HOME match contributions are required by statute to be non-federal and are therefore, not counted as Federal assistance for the purpose of determining the applicable requirements for rehabilitation projects.

J20. PARTIALLY HOME-ASSISTED PROJECTS: In a project that includes both HOME-assisted and non-assisted units, do the lead-based paint rules apply to the non-assisted units?

Yes. If a project receives HOME funds, the lead-based paint requirements apply to the entire project, irrespective of the designation of individual units. If a project receives CDBG assistance, the entire project is considered assisted and the lead-based paint requirements apply to all units.

J21. PROJECT ACQUISITION AND REHABILITATION COSTS: If a developer acquires a property with HOME or CDBG funds and uses non-Federal funds for rehabilitation, would the project be subject to the acquisition (Subpart K) requirements of the rule, rather than the rehabilitation requirements?

No. In both the HOME and CDBG programs, this project would be considered a rehabilitation project because rehabilitation is the ultimate activity. Consequently, the rehabilitation (subpart J) requirements would apply.

J22. ADMINISTRATIVE COSTS AND HARD COSTS: If an Entitlement Community provides administrative funds to a nonprofit to operate a rehabilitation program but no money for construction, does it have to comply with the lead-based paint regulation?

No, administrative costs are not included in "hard costs of rehabilitation," as defined in section 35.110.

J23. ANNUAL INSPECTIONS AND LEAD PAINT MAINTENANCE: The HOME regulations require annual physical inspections only for rental projects with more than 25 HOME-assisted units. However, the lead-based paint rule calls for annual lead-based paint maintenance. Please clarify. 

The HOME program requires periodic monitoring (i.e., every 1, 2 or 3 years, depending on project size) of the physical condition of an assisted rental property. This is distinct from the ongoing maintenance requirement for HOME rental projects under the lead-based paint rule. Under the latter requirement, the Participating Jurisdiction must require a project owner who received HOME rehabilitation assistance to perform lead-based paint maintenance as a part of regular building maintenance. This means that the owner must perform a visual assessment for deteriorated paint surfaces, stabilization of deteriorated paint surfaces and clearance, annually and at unit turnover. During periodic physical inspections of the property required by the HOME regulations, the Participating Jurisdiction is required to determine whether the owner has been following the required protocol, as well as perform a physical inspection for compliance with property standards it has adopted for its HOME program.  

J24. RELOCATION AND REHABILITATION PROGRAMS: Is relocation required when performing lead-based paint hazard reduction or rehabilitation covered by subpart J of the regulation?

As stated in section 35.1345, temporary relocation is required unless: (1) the work will not disturb lead-based paint or lead-based paint hazards; (2) only exterior work is being conducted and openings to the interior are closed during the work and lead-hazard-free entry to the dwelling is provided; (3) the interior work will be completed in 8 hours, the work sites are contained to prevent dust release into other areas, and no other health or safety hazards are created; or (4) interior work will be completed in 5 consecutive days, work sites are contained, no other health or safety hazards are created, work sites and areas 10 feet from the containment are cleaned at the end of each work day, and occupants have safe access to sleeping, kitchen and bathroom facilities. Safe access to sleeping areas, and bathroom and kitchen facilities does not require that such facilities be provided in the same unit. Such facilities can be provided in another convenient location in many instances, thereby avoiding unnecessary relocation of residence. The term "interior work" refers to work in a single room. At no time can occupants be permitted into the work sites, unless they are employed in the work, until after work is complete and clearance, if required, has been achieved. Relocation of elderly occupants is not typically required, so long as complete disclosure of the nature of the work is provided and informed consent of the elderly occupant(s) is obtained before commencement of the work.

J25. PROGRAM ADMINISTRATION If CDBG funds are used for program administration costs only and not for any project costs, does the regulation apply?

No, because these are soft costs. Program administration costs, in the CDBG program, are those costs which involve the overall program management, coordination, monitoring, and evaluation of the program. Project delivery costs include staff and overhead costs directly involved in carrying out an eligible activity. In neither case are such costs included in the "hard costs" of rehabilitation.

J26. LONG-TERM EMERGENCY REHABILITATION: If an emergency rehabilitation program does $7,000-$10,000 worth of work on a property over a two-to-five year period, how is it classified?

First, if it takes two-to-five years to complete "emergency" work, such work does not qualify for the emergency exemption at 35.115(a)(9), which only applies to "actions immediately necessary to safeguard against imminent danger to human life, health or safety, or to protect property from further structural damage (such as when a property has been damaged by a natural disaster, fire, or structural collapse)." Second, a program of rehabilitation that is expected to extend over several years for a single property must be considered as one project for the purposes of determining the category of requirements in subpart J. Therefore the category would be $5,000-$25,000 in this case.

J27. FUNDING BEFORE THE EFFECTIVE DATE: Does Subpart J apply to a project receiving rehabilitation assistance from a HOME, IHBG or CDBG Entitlement, HOPWA, Supportive Housing Program, or Indian CDBG program before the effective date of the rule, September 15, 2000, to which funds are added on or after the effective date, and if so, to what part of the project?

Subpart J does not apply to funds from those programs committed before the effective date, but does apply to funds from those programs committed on or after the effective date, whether to a new project or a modification of an existing project. Determining whether a project is receiving $5,000 or over $25,000, you should consider funds only committed after the effective date of the rule.

J28. APPLICABILITY TO SECTION 203(k) PROGRAM: Does subpart J apply to rehabilitation being conducted on a single family home being purchased with a loan insured under the Section 203(k) Rehabilitation Mortgage Insurance program?

The 203(k) program, commonly known as single family rehabilitation mortgage insurance, involves rehabilitation loans and the provision of mortgage insurance by HUD. The mortgage insurance covers, at a minimum, the indebtedness resulting from the loan. HUD provides the mortgage insurance, but not the original rehabilitation loan. As such, the 203(k) program is treated as any other single family mortgage insurance program

At the current time, 24 CFR Part 35, Subpart E has been reserved for the coverage of all HUD single family mortgage or guarantee programs. Until further notice, these programs continue to be covered at 24 CFR 200.800-810 as revised at 64FR 50226 with no change in applicable requirements.