FR 6486 N 01 Modifying HUD’s Elevated Blood Lead Level Threshold for Children Under Age 6 Who are Living in Certain HUD Assisted Target Housing Covered by the Lead Safe Housing[...]

Modifying HUD's Elevated Blood Lead Level Threshold for Children Under Age 6 Who are Living in Certain HUD-Assisted Target Housing Covered by the Lead Safe Housing Rule; Notice for Comment

Dates

Comment Due Date: October 11, 2024.

Supplementary Information

I. Background

A. HUD's Lead Safe Housing Rule

On September 15, 1999, HUD published a final rule entitled "Requirements for Notification, Evaluation and Reduction of Lead-Based Paint Hazards in Federally Owned Residential Property and Housing Receiving Federal Assistance."  ⁽¹⁾ HUD's 1999 final rule, including revisions made through subsequent rulemakings since the rule's original publication in 1999, is referred to throughout this notice for comment as the "Lead Safe Housing Rule." The Lead Safe Housing Rule's requirements are codified at 24 CFR part 35. Its purpose is to implement the Lead-Based Paint Poisoning Prevention Act, as amended, ⁽²⁾ and the Residential Lead-Based Paint Hazard Reduction Act of 1992  ⁽³⁾ and specifically, "to ensure that housing receiving Federal assistance and federally owned housing that is to be sold does not pose lead-based paint hazards to young children."  ⁽⁴⁾

Under HUD's Lead Safe Housing Rule, when a child under age 6 residing in certain housing built before 1978- i.e., "target housing"  ⁽⁵⁾ -that is HUD-assisted is identified as having an elevated blood lead level, the "designated party"-the property owner or other entity ( e.g., Federal agency, State, local government, public housing agency, Indian Tribe, tribally designated housing entity, sponsor) responsible for complying with applicable requirements of the Lead Safe Housing Rule for that assistance  ⁽⁶⁾ -is required to undertake certain actions. These required actions are generally the same for each of the four applicable Lead Safe Housing Rule subparts in 24 CFR part 35 regarding HUD assistance:

• Subpart H, Project-Based Assistance,
• Subpart I, HUD-Owned and Mortgagee-in-Possession Multifamily Property,
• Subpart L, Public Housing Programs, and
• Subpart M, Tenant-Based Rental Assistance.

Additionally, there are slightly narrower requirements in subpart D, covering Project-Based Assistance Provided by a Federal Agency Other Than HUD, under which other agencies do not report on the case to HUD.

During an environmental investigation, lead professionals ( i.e., certified lead risk assessors working for a certified lead risk assessment firm on behalf of the designated party, or professionals from the local public health department) check the child's environment for possible causes of lead exposure and recommend ways to prevent further lead exposure. If the environmental investigation identifies any lead-based paint hazards in the HUD-assisted housing unit of the child, the building's other HUD-assisted units where a child under age 6 resides are also required to have a risk assessment conducted, and a designated party associated with the assistance must arrange for the hazards to be controlled in accordance with HUD and Environmental Protection Agency (EPA) requirements, as applicable, on a schedule specified in the Lead Safe Housing Rule. ⁽⁷⁾

B. CDC's Blood Level Reference Value and HUD's Elevated Blood Lead Level Threshold

Through mid-2017, HUD defined "environmental intervention blood lead level" (EIBLL) as "a confirmed concentration of lead in whole blood equal to or greater than 20 ug/dL for a single test or 15-19 ug/dL in two tests taken at least 3 months apart."  ⁽⁸⁾ HUD used the EIBLL definition to specify when environmental intervention was required in HUD-assisted target housing.

In 2017, HUD amended the Lead Safe Housing Rule principally to address HUD's requirements relating to responding to elevated blood lead levels. ⁽⁹⁾ Through the amendment, HUD replaced the EIBLL definition with a definition of "elevated blood lead level" in children under the age 6, in accordance with CDC guidance at the time. ⁽¹⁰⁾ As noted in HUD's 2017 rule:

CDC's "reference range value" [also called "reference value"] method for defining EBLLs is based on the blood lead level equaled or exceeded by 2.5 percent of U.S. children aged 1-5 years as determined by CDC's most recent National Health and Nutritional Examination Survey. Currently [ i.e., in 2017], CDC's reference range value is 5 μg/dL (5 micrograms of lead per deciliter of blood). ⁽¹¹⁾

CDC introduced its blood lead reference value method in 2012, based on the CDC's Advisory Committee on Childhood Lead Poisoning Prevention (ACCLPP), ⁽¹²⁾ recommending in January 2012:

that a reference value based on the 97.5th percentile of the [National Health and Nutrition Examination Survey] generated [blood lead level (BLL)] distribution in children 1-5 years old (currently 5 μg/dL) be used to identify children with elevated BLL. ⁽¹³⁾

In its June 2012 response, CDC accepted the ACCLPP recommendations that the BLRV method be used and that the BLRV be set at 5 μg/dL for children under the age of 6, based on the two then-most recent National Health and Nutritional Examination Surveys from 2009-2010 and 2011-2012. ⁽¹⁴⁾

As the CDC explains, its BLRV helps to identify children with higher levels of lead in their blood compared to most children. The current BLRV is based on the 97.5th percentile of the blood lead values among U.S. children ages 1-5 years from 2015-2016 and 2017-2018 National Health and Nutrition Examination Survey (NHANES) cycles. Children with blood lead levels at or above the BLRV represent those at the top 2.5 percent with the highest blood lead levels. The CDC reanalyzes blood lead data approximately every four years using the most recent two NHANES cycles to determine whether it should update its BLRV. ⁽¹⁵⁾

With the distribution of blood lead levels of children under age 6 consistently dropping for decades, ⁽¹⁶⁾ including in recent years, ⁽¹⁷⁾ the fraction of children with blood lead levels at or above 5 μg/dL has decreased. Based on HUD's survey research  ⁽¹⁸⁾ and lead hazard reduction grant data analysis research, ⁽¹⁹⁾ it is clear that assisted housing has distributions of dust-lead levels well below the national distribution of dust-lead levels both during routine occupancy and after lead hazard reduction activities. HUD's survey research also indicates that HUD-assisted housing has a lower prevalence of lead-based paint hazards than unassisted housing. Consistent with those findings, HUD-CDC data analysis research indicates that the distribution of blood lead levels in children under age 6 residing in HUD-assisted housing is significantly lower than the distribution of blood lead levels in socio-demographically matched children in unassisted housing. ⁽²⁰⁾

On May 14, 2021, the Department of Health and Human Services' Lead Exposure and Prevention Advisory Committee (LEPAC)  ⁽²¹⁾ voted to recommend that CDC update its BLRV for children under the age of 6 from 5 μg/dL to 3.5 μg/dL based on CDC data from the 2015-2016 and 2017-2018 NHANES cycles. ⁽²²⁾ CDC accepted LEPAC's recommendation and publicized its implementation by creating and updating several web pages on its website. ⁽²³⁾

C. HUD's Intention To Revise Its EBLL Threshold for Children Under the Age of 6

HUD intends to revise its EBLL threshold to 3.5 μg/dL of blood for a child under age 6, consistent with CDC's current BLRV of 3.5 μg/dL of blood for a child under age 6. ⁽²⁴⁾ HUD's intended revision to its EBLL threshold would encourage healthcare providers and public health professionals to use the CDC-recommended follow-up actions that include arranging for an environmental investigation of the home to identify potential sources of lead. ⁽²⁵⁾ The revision would require the environmental investigation by the designated party (unless the public health department has evaluated the home in regard to the child's EBLL case) when the child resides in certain HUD-assisted target housing covered by the Lead Safe Housing Rule.

When HUD's Lead Safe Housing Rule was last amended in 2017, ⁽²⁶⁾ CDC guidance was to use 5 μg/dL as the BLRV threshold for children under the age of 6 when recommending an environmental investigation. HUD has used that level as the EBLL threshold for the Lead Safe Housing Rule since 2017. Given that CDC has now revised its BLRV to 3.5 μg/dL for children under the age of 6, HUD believes that it is appropriate to revise its EBLL threshold to be consistent with CDC's BLRV.

Conforming HUD's EBLL threshold for children under 6 to CDC's current BLRV would result in more environmental investigations of pre-1978 assisted housing units and more lead hazard control work being performed in those units than at present. The number of environmental investigations and lead hazard control activities would be comparable to the number at the time the EBLL was set in 2017, because the CDC guidance criterion for setting the BLRV-the blood lead level at or above which are the highest 2.5 percent of the national population of children under age 6 (formally, ages 1 to 5)-is the same. Because HUD already has overall safety and LSHR monitoring and response programs, the percentage of children under age 6 with EBLLs in HUD-assisted housing is expected to remain lower than that national 2.5 percentage.

II. This Notice for Comment

Through this notice for comment, HUD is giving notice of, and opportunity for public comment on, as required by 24 CFR part 35, ⁽²⁷⁾ HUD's intention to revise its elevated blood lead level threshold to 3.5 μg/dL of blood for a child under age 6.

HUD requests public input regarding HUD's intention to make the described update to its EBLL threshold under HUD's Lead Safe Housing Rule. HUD seeks public comment on whether HUD should adopt the CDC's 3.5 μg/dL BLRV to replace the EBLL 5 μg/dL threshold for children under the age of 6 currently used in HUD's Lead Safe Housing Rule. This adoption of a lower EBLL threshold would result in the percentage of HUD assisted pre-1978 housing units prompting environmental investigations to return to approximately the same percentage as in 2017.

III. Specific Information Requested

While HUD welcomes all comments relevant to HUD's intention to update the Lead Safe Housing Rule's EBLL threshold from 5 to 3.5 μg/dL of blood for a child under 6, consistent with CDC's recommendation, HUD is particularly interested in receiving input on the questions listed below. To assist commenters, HUD provides the following guidance and list of specific information requested.

• Please indicate in your written comments the area of interest and the topic number(s) below you are commenting on and provide specific information to illustrate your comments where possible.
• You do not need to address every topic and should focus on those where you have relevant expertise, experience, or data.
• To the extent possible, please cite any public data, peer-reviewed journal articles, and other publicly accessible information related to the topic or that supports your responses.

• If information or data is available, but is non-public, describe the information or data to the extent permissible, noting that it is non-public.

Because any responses received by HUD will be publicly available, responses should not include any personally identifiable information (other than identifying the submitter, unless the submitter wishes to submit anonymously, or identifying authors or editors of publicly available information) or confidential commercial information.

HUD thanks commenters in advance for their information and comments that will assist the Department in evaluating its current EBLL threshold and the appropriateness of HUD's intention to revise its EBLL threshold.

1. Considerations for Revising the Lead Safe Housing Rule's Elevated Blood Lead Level Threshold

a. Reasoning in this notice. Is the reasoning discussed throughout this notice for comment appropriate for determining to decrease the Lead Safe Housing Rule's EBLL threshold from 5 to 3.5 μg/dL of blood for children under 6? Is the justification reasonable and balanced?

b. Other considerations. Are there other considerations for determining the appropriate EBLL, and, if so, what are those considerations and how should they be addressed?

2. Compliance Period Following a Revision to the Lead Safe Housing Rules Elevated Blood Lead Level Threshold

If HUD revises its EBLL threshold under the Lead Safe Housing Rule by decreasing it to CDC's current BLRV, should HUD set a 6-month compliance period for requiring environmental interventions at the decreased EBLL threshold, as HUD did when it last decreased its Lead Safe Housing Rule blood lead level threshold in 2017, or should HUD set some other compliance period?

HUD recognizes that its clients conducting ongoing program activities in pre-1978 housing covered by the Lead Safe Housing Rule would need time to incorporate any revised EBLL threshold level requirements related to responding to cases of children with EBLLs into their programs. As a result, HUD is considering setting a compliance date of 6 months after any revision to the EBLL threshold for requiring environmental intervention and related activities. Setting a delayed compliance period of 6 months would be intended to allow all covered parties-lead-based paint professionals, housing agencies, State, Tribal, and local government agencies, public and private residential property owners, residential property management firms, and others-time to prepare for proper implementation of any revised requirements. HUD shares the public health concern that further delaying required compliance with a revised EBLL threshold may expose children under age 6 to higher lead levels for a longer period of time; however, HUD believes that setting a shorter compliance date, such as a 30-day compliance date, may be impractical because the organizational infrastructure necessary to implement a revised EBLL threshold will take time to put in place.

⁽¹⁾  Available at 64 FR 50140.

⁽²⁾  42 U.S.C. 4821 et seq.

⁽³⁾  42 U.S.C. 4851 et seq.; see also 24 CFR 35.100(a).

⁽⁴⁾  64 FR 50140 (Sept. 15, 1999).

⁽⁵⁾  Most housing built before 1978 is considered "target housing," which is the focus of the Lead Safe Housing Rule and other HUD and Environmental Protection Agency rules and programs on lead safety in housing. The Lead Safe Housing Rule defines "target housing," in part, as "any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless a child of less than 6 years of age resides or is expected to reside in such housing for the elderly or persons with disabilities) or any zero-bedroom dwelling." 24 CFR 35.110, target housing. HUD is preparing to amend the definition of "target housing" in 24 CFR part 35 to reflect the slight expansion of the scope of the term by the Consolidated Appropriations Act, 2017 (Pub. L. 115-31, enacted May 5, 2017) to include the small number of pre-1978 zero-bedroom dwellings in which a child under age 6 resides or is expected to reside. See the Office of Information and Regulatory Affairs, Spring 2024 Unified Agenda of Regulatory and Deregulatory Actions, HUD Regulatory Identification Number 2501-AE03, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202404&RIN=2501-AE03 .

⁽⁶⁾ See 24 CFR 35.110, designated party.

⁽⁷⁾  For additional information on required actions where a child has an EBLL, see 24 CFR 35.325 (subpart D); 24 CFR 35.730; (subpart H), 24 CFR 35.830 (subpart I); 24 CFR 35.1130 (subpart L); and 24 CFR 35.1225 (subpart M).

⁽⁸⁾  24 CFR 35.110 (Jan. 3, 2017).

⁽⁹⁾ See Requirements for Notification, Evaluation and Reduction of Lead-Based Paint Hazards in Federally Owned Residential Property and Housing Receiving Federal Assistance; Response to Elevated Blood Lead Levels, 82 FR 4151 (Jan. 13, 2017).

⁽¹⁰⁾  24 CFR 35.110, elevated blood lead level.

⁽¹¹⁾  82 FR 4152, footnote 6 (Jan. 13, 2017).

⁽¹²⁾  The ACCLPP was formed under the Federal Advisory Committee Act, 5 U.S.C. 1001, which provides a mechanism for experts and stakeholders to participate in the executive branch decision-making process.

⁽¹³⁾  ACCLPP, Recommendations of the Advisory Committee for Childhood Lead Poisoning Prevention (ACCLPP) "Low Level Lead Exposure Harms Children: A Renewed Call of Primary Prevention" (Jan. 4, 2012), https://archive.cdc.gov/#/details?url=https://www.cdc.gov/nceh/lead/advisory/acclpp.htm .

⁽¹⁴⁾  CDC, CDC Response to Advisory Committee on Childhood Lead Poisoning Prevention (ACCLPP) Recommendations in "Low Level Lead Exposure Harms Children: A Renewed Call of Primary Prevention" (June 7, 2012), https://archive.cdc.gov/#/details?url=https://www.cdc.gov/nceh/lead/advisory/acclpp.htm .

⁽¹⁵⁾ See CDC, Childhood Lead Poisoning Prevention, About the Data: Blood Lead Surveillance, Blood lead reference value (April 17, 2024), https://www.cdc.gov/lead-prevention/php/data/blood-lead-surveillance.html#cdc_data_description_what_the_data_includes-blood-lead-reference-value .

⁽¹⁶⁾ See, e.g., Brown MJ and Falk H. Toolkit for Establishing Laws to Control the Use of Lead Paint. Module C.iii. Conducting blood lead prevalence studies, Global Alliance to Eliminate Lead Paint, slide 8 (2017), https://wedocs.unep.org/bitstream/handle/20.500.11822/21470/Module%20Ciii%20Blood%20Lead%20Prevalence%20Studies_Final%20%20July%2017.pdf .

⁽¹⁷⁾ See, e.g., Tsoi M-F, Cheung C-L, Cheung TT, Cheung BMY, Continual Decrease in Blood Lead Level in Americans: United States National Health Nutrition and Examination Survey 1999-2014 (2016), American Journal of Medicine 129(11):1213-1218, https://doi.org/10.1016/j.amjmed.2016.05.042 ; Egan KB, Cornwell CR, Courtney JG, Ettinger AS, Blood Lead Levels in U.S. Children Ages 1-11 Years, 1976-2016 (2021), Environmental Health Perspectives 129(3):037003, https://doi.org/10.1289/EHP793 .

⁽¹⁸⁾ See Jacobs DE, Clickner RP, Zhou JY, Viet SM, Marker DA, Rogers JW, Zeldin DC, Broene P, and Friedman W, The Prevalence of Lead-Based Paint Hazards in U.S. Housing (2002), Environmental Health Perspectives 110(10):A599-A606, https://doi.org/10.1289/ehp.021100599 ; Dewalt FG, Cox DC, O'Haver R, Salatino B, Holmes D, Ashley PJ, Pinzer EA, Friedman W, Marker D, Viet SM, and Fraser A, Prevalence of Lead Hazards and Soil Arsenic in U.S. Housing (2015), Journal of Environmental Health 78(5):22-29, https://www.neha.org/node/6429 ; HUD Office of Lead Hazard Control and Healthy Homes, American Healthy Homes Survey II Lead Findings (2021), www.hud.gov/sites/dfiles/HH/documents/AHHS_II_Lead_Findings_Report_Final_29oct21.pdf .

⁽¹⁹⁾ See, e.g., Cox, David and Gary Dewalt (2015), Lead Hazard Control Clearance Survey: Final Report. HUD, Office of Lead Hazard Control and Healthy Homes, https://www.hud.gov/sites/documents/ClearanceSurvey_24Oct15.pdf .

⁽²⁰⁾ See, e.g., Ahrens KA, Haley BA, Rossen LM, Lloyd PC, Aoki Y, Housing Assistance and Blood Lead Levels: Children in the United States, 2005-2012, American Journal of Public Health 106(11):2049-2056 (Nov. 1, 2016), https://doi.org/10.2105/AJPH.2016.303432 .

⁽²¹⁾  For additional information on LEPAC, see CDC, Childhood Lead Poisoning Prevention, Lead Advisory Committees, https://www.cdc.gov/lead-prevention/php/lead-advisory-committee/index.html .

⁽²²⁾ See CDC, Childhood Lead Poisoning Prevention, Agenda and Minutes of Lead Exposure and Prevention Advisory Committee Meeting, May 14, 2021, https://www.cdc.gov/lead-prevention/php/lead-advisory-committee/meeting-5-14-2021.html .

⁽²³⁾ See, e.g., https://www.cdc.gov/lead-prevention/about/index.html;https://www.cdc.gov/lead-prevention/php/data/blood-lead-surveillance.html; https://www.cdc.gov/lead-prevention/php/data/index.html;https://www.cdc.gov/lead-prevention/hcp/clinical-guidance/index.html .

⁽²⁴⁾  For additional information, see CDC, Childhood Lead Poisoning Prevention, About the Data: Blood Lead Surveillance, https://www.cdc.gov/lead-prevention/php/data/blood-lead-surveillance.html .

⁽²⁵⁾  For additional information, see CDC, Childhood Lead Poisoning Prevention, Recommended Actions Based on Blood Lead Level, https://www.cdc.gov/lead-prevention/hcp/clinical-guidance/index.html .

⁽²⁶⁾ See 82 FR 4151 (Jan. 13, 2017).

⁽²⁷⁾  24 CFR 35.110, elevated blood lead level.