This subpart A establishes procedures to assure that purchasers and tenants of all HUD-associated housing constructed prior to 1978 are notified of the hazards of lead-based paint which may exist in such housing, of the symptoms and treatment of lead-based paint poisoning, and of the importance and availability of maintenance and removal techniques for eliminating such hazards.

Act. The Lead-Based Paint Poisoning Prevention Act, Pub. L. 91-695, 84 Stat. 2078, as amended by Pub. L. 93-151 and Pub. L. 94-317 (42 U.S.C. 4821-4846).

Assistant Secretaries. The Assistant Secretaries in the Department of Housing and Urban Development.

HUD-associated housing. Any residential structure that is the subject of an application for mortgage insurance under the National Housing Act or is proposed for the receipt of housing assistance payments under a program administered by the Secretary. For purposes of this subpart A, HUD-associated housing also includes any existing residential structure—

(1) Acquired by the Secretary pursuant to any provision of law which, prior to such acquisition, was insured under the National Housing Act or was subject to a loan under section 312 of the Housing Act of 1964,

(2) Sold by the Secretary following any such acquisition and subject to any requirements regarding its use or operation under an agreement with, or condition imposed by, the Secretary, or

(3) That is currently covered by mortgage insurance or a contract for housing assistance payments.

Residential structure. Any house, apartment or structure intended for human habitation, including any non-dwelling facility operated by the owner and commonly used by children under seven years of age, such as a child care center.

Secretary. The Secretary of Housing and Urban Development or a HUD official delegated the Secretary's authority with respect to the Act.

(a) Purchasers and tenants of HUD-associated housing constructed prior to 1978 shall be notified:

(1) That the property was constructed prior to 1978;

(2) That the property may contain lead-based paint;

(3) Of the hazards of lead-based paint;

(4) Of the symptoms and treatment of lead-based paint poisoning; and

(5) Of the precautions to be taken to avoid lead-based paint poisoning (including maintenance and removal techniques for eliminating such hazards).

(b) Each Assistant Secretary shall take necessary actions to implement the requirements of paragaph (a) of this section with respect to the HUD programs within his/her administrative jurisdiction. Such actions shall include providing the required notification (prepared by the Secretary after consultation with the National Institute of Building Sciences) and establishing procedures to:

(1) Provide evidence that the required notification has been received by purchasers and tenants of HUD-associated housing constructed prior to 1978, and

(2) Require the inclusion of appropriate provisions in contracts of sale, rental or management of HUD-associated housing to assure that purchasers and tenants receive the required notification.

(c) Any requirement of this section, except use of the required notification, shall be deemed superseded by a regulation promulgated by an Assistant Secretary with respect to any program under his or her jurisdiction which states expressly that it is promulgated pursuant to the authorization granted in this section and supersedes, with respect to programs within its defined scope, the notification requirements prescribed by this section. Sec. e.g., 24 CFR 570.680(b) (Community Development Block Grants).

This subpart implements the provisions of 42 CFR part 90 issued by the Secretary of Health and Human Services pursuant to section 401 of the Act which are applicable to Federal agencies and which prohibit the use of lead-based paint on applicable surfaces of residential structures constructed or rehabilitated by the Federal Government or with Federal assistance and establishes procedures to prohibit the use of lead-based paint on applicable surfaces in all HUD-associated housing.

The definitions contained in § 35.3 of subpart A of this part shall apply to this subpart B and in addition the following definition is applicable to this subpart B:

(a) Lead-based paint as defined in section 501(3) of the Act as amended by Pub. L. 94-317 (42 U.S.C. 4801, et seq), the National Consumer Information and Health Promotion Act of 1976, means: (1) Any paint containing more than five-tenths of 1 per centum lead by weight (calculated as lead metal in the total non-volatile content of the paint or the equivalent measure of lead in the dried film of paint already applied or both; or (2) with respect to paint which is manufactured after June 22, 1977 lead-based paint means any paint containing more than six one-hundredths of 1 per centum lead by weight (calculated as lead metal) in the total nonvolatile content of the paint or the equivalent measure of lead in the dried film of paint already applied.

(a) No office of the Department shall use or permit the use of lead-based paint on applicable surfaces of HUD-associated housing.

(b) Each Assistant Secretary shall implement the requirements of paragraph (a) of this section with respect to the HUD programs within his/her administrative jurisdiction. Implemention shall include the establishment of procedures to require the inclusion of appropriate provisions in contracts and subcontracts involving HUD-associated housing prohibiting the use of lead-based paint on applicable surfaces of such HUD-associated housing and shall include provisions necessary for enforcement of the prohibition.

This subpart C implements the provisions of section 302 of the Act with respect to establishing procedures to eliminate as far as practicable the hazards of lead-based paint poisoning with respect to any existing HUD-associated housing which may present such hazards.

As used in this subpart:

Applicable surface means all intact and nonintact interior and exterior painted surfaces of a residential structure.

Defective paint surface means an applicable surface on which the paint is cracking, scaling, chipping, peeling, or loose.

HUD-associated housing shall have the meaning ascribed in § 35.3.

Residential structure shall have the meaning ascribed in § 35.3.

(a) Each Assistant Secretary shall establish procedures with respect to programs involving HUD-associated housing within his or her administrative jurisdiction to eliminate as far as practicable the hazards of lead-based paint poisoning with respect to housing that may present such hazards.

(b) Subject to the provisions of separate regulations promulgated with respect to any program by the Assistant Secretary having jurisdiction over that program, the following minimum requirements shall apply to all programs:

(1) All applicable surfaces of HUD-associated housing constructed prior to 1978 shall be inspected to determine whether defective paint surfaces exist.

(2)(i) Treatment necessary to eliminate immediate hazards shall, at a minimum, consist of the covering or removal of defective paint surfaces found in HUD-associated housing constructed prior to 1978.

(ii) Covering may be accomplished by such means as adding a layer of wallboard to the wall surface. Depending on the wall condition, wallcoverings which are permanently attached may be used. Covering or replacing trim surfaces is also permitted. Paint removal may be accomplished by such methods as scraping, heat treatment (infra-red or coil type heat guns) or chemicals. Machine sanding and use of propane or gasoline torches (open-flame methods) are not permitted. Washing and repainting without thorough removal or covering does not constitute adequate treatment. In the case of defective paint spots, scraping and repainting the defective area is considered adquate treatment.

(3) Appropriate provisions for the inspection of applicable surfaces and elimination of hazards shall be included in contracts and subcontracts involving HUD-associated housing to which such requirements may apply.

(4) Any requirements of this section shall be deemed superseded by a regulation promulgated by an Assistant Secretary with respect to any program under his or her jurisdiction which states expressly that it is promulgated under the authorization granted in this section and supersedes, with respect to programs within its defined scope, the requirements prescribed by this section. See, e.g., 24 CFR part 200, subpart O (Mortgage Insurance and Property Disposition); § 570.608 (Community Development Block Grant); § 882.109(i) (Section 8 Existing Housing); part 965, subpart H (Public Housing); part 905, subpart K (Indian Housing).

(a) HUD, as owner of federally-owned housing, will comply with State or local laws, ordinances, codes, or regulations governing lead-based paint hazard abatement.

(b) Nothing in this part 35 is intended to relieve an owner or tenant of HUD-associated housing of any responsibility for compliance with State or local laws, ordinances, codes, or regulations governing lead-based paint hazard abatement.

(c) HUD does not assume any responsibility with respect to inspection, enforcement, interpretation or determination of compliance with such State or local requirements, except that the Federal standard for lead content in paint supersedes any State or local requirement, prohibition, or standard, as provided in section 506 of the Act.

Each Assistant Secretary shall take necessary actions to implement the intent of § 35.40.

This subpart E implements the provisions of section 302 of the Act which directs the Secretary to establish and implement procedures to eliminate the hazards of lead-based paint poisoning in all federally-owned properties prior to the sale of such properties when their use is intended for residential habitation.

The requirements established by this subpart E are applicable to all federally-owned properties prior to their sale by a Federal agency when their use is intended for residential habitation.

The definitions contained in §§ 35.3 and 35.22 shall apply to this subpart E. The following definitions are also applicable to this subpart E:

Federal agency. The United States or any executive departments, independent establishments, administrative agencies and instrumentalities of the United States, including corporations in which all or substantially all of the stock is beneficially owned by the United States or by any of the foregoing departments, establishments, agencies or instrumentalities.

Federally-owned properties. Any properties owned by a federal agency as defined in this section.

Use for residential habitation. The use of a property as a residential structure as defined in § 35.3.

(a) Prior to occupancy of a federally-owned property where its use subsequent to sale is intended for residential habitation, the Federal agency selling the property shall assure that the following steps are taken:

(1) All applicable surfaces of residential structures constructed prior to 1978 shall be inspected to determine whether defective paint surfaces exist. For this purpose all defective paint surfaces shall be assumed to be immediate hazards; and

(2) Treatment necessary to eliminate hazards of lead-based paint shall consist of covering or removal of defective paint surfaces. Covering may be accomplished by such means as adding a layer of wallbard to the wall surface. Depending on the wall condition, wallcoverings which are permanently attached may be used. Covering or replacing trim surfaces is also permitted. Paint removal may be accomplished by such methods as scraping, heat treatment (infra-red or coil type heat guns) or chemicals. Machine sanding and use of propane or gasoline torches (open-flame methods) are not permitted. Washing and repainting without thorough removal or covering does not constitute adequate treatment. In the case of defective paint spots, scraping and repainting the defective area is considered adequate treatment.

(3) Prospective purchasers are provided all notifications described in § 35.5(a).

(b) The provisions of this subpart E shall be binding upon all Federal agencies as provided by section 302 of the Act; however, nothing contained in this part 35 shall preclude any Federal agency from promulgating such other procedures or additional requirements as may be necessary to implement the provisions of the Act.