[Federal Register Volume 81, Number 233 (Monday, December 5, 2016)]
[Rules and Regulations]
[Pages 87430-87444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28986]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 965 and 966

[Docket No. FR 5597-F-03]
RIN 2577-AC97


Instituting Smoke-Free Public Housing

AGENCY: Office of the Assistant Secretary for Public and Indian 
Housing, HUD.

ACTION: Final rule.

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SUMMARY: This rule requires each public housing agency (PHA) 
administering public housing to implement a smoke-free policy. 
Specifically, no later than 18 months from the effective date of the 
rule, each PHA must implement a ``smoke-free'' policy banning the use 
of prohibited tobacco products in all public housing living units, 
indoor common areas in public housing, and in PHA administrative office 
buildings. The smoke-free policy must also extend to all outdoor areas 
up to 25 feet from the public housing and administrative office 
buildings. This rule improves indoor air quality in the housing; 
benefits the health of public housing residents, visitors, and PHA 
staff; reduces the risk of catastrophic fires; and lowers overall 
maintenance costs.

DATES: Effective date February 3, 2017.

FOR FURTHER INFORMATION CONTACT: Leroy Ferguson, Office of Public and 
Indian Housing, Department of Housing and Urban Development, 451 7th 
Street SW., Washington, DC 20410-0500; telephone number 202-402-2411 
(this is not a toll-free number). Persons who

[[Page 87431]]

are deaf or hard of hearing and persons with speech impairments may 
access this number through TTY by calling the Federal Relay Service at 
800-877-8339 (this is a toll-free number).

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

A. Purpose of the Rule

    The purpose of the rule is to require PHAs to establish, within 18 
months of the effective date, a policy disallowing the use of 
prohibited tobacco products, as such term is defined in Sec.  
965.653(c), inside all indoor areas of public housing, including but 
not limited to living units, indoor common areas, electrical closets, 
storage units, and PHA administrative office buildings, and in all 
outdoor areas within 25 feet of the housing and administrative office 
buildings (collectively, ``restricted areas''). As further discussed in 
this rule, such a policy is expected to improve indoor air quality in 
public housing; benefit the health of public housing residents, 
visitors, and PHA staff; reduce the risk of catastrophic fires; and 
lower overall maintenance costs.

B. Summary of Major Provisions of the Rule

    This rule applies to all public housing other than dwelling units 
in mixed-finance buildings. PHAs are required to establish, within 18 
months of the effective date of the rule, policies disallowing the use 
of prohibited tobacco products in all restricted areas. PHAs may, but 
are not required to, further restrict smoking to outdoor dedicated 
smoking areas outside the restricted areas, create additional 
restricted areas in which smoking is prohibited (e.g., near a 
playground), or, alternatively, make their entire grounds smoke-free.
    PHAs are required to document their smoke-free policies in their 
PHA plans, a process that requires resident engagement and public 
meetings. The proscription on the use of prohibited tobacco products 
must also be included in a tenant's lease, which may be done either 
through an amendment process or as tenants renew their leases annually.

C. Costs and Benefits of This Rule

    The costs to PHAs of implementing smoke-free policies may include 
training, administrative, legal, and enforcement costs. The costs of 
implementing a smoke-free policy are minimized by the existence of 
current HUD guidance on many of the topics covered by the mandatory 
smoke-free policy required by this rule. Already, hundreds of PHAs have 
voluntarily implemented smoke-free policies. Furthermore, 
infrastructure already exists for enforcement of lease violations, and 
violation of the smoke-free policy would constitute a lease violation. 
In addition, time spent by PHA staff on implementing and enforcing the 
smoke-free policy will be partially offset by the time that staff no 
longer have to spend mediating disputes among residents over secondhand 
smoke (SHS) infiltration within living units. Given the existing HUD 
guidance, initial learning costs (such as the costs of staff and 
resident training understanding of this policy) associated with 
implementation of a smoke-free policy may not be significant. For the 
hundreds of PHAs that are already implementing voluntary smoke-free 
policies, there will be minimal costs of updating smoke-free policies, 
and these minimal costs will generally apply only if their existing 
policies are not consistent with the minimum requirements for smoke-
free policies proposed by this rule.
    However, implementing the requirements successfully may require 
additional enforcement legal costs for cases where repeated violations 
lead to evictions. Total recurring costs to PHAs of implementation and 
enforcement are expected to be $7.7 million, although they may be 
higher in the first few years of implementation, given the necessity of 
establishing designated smoking areas (a total of $30.2 million in the 
first year).
    The benefits of smoke-free policies could also be considerable. 
Over 700,000 units would be affected by this rule (including over 
500,000 units inhabited by elderly households or households with a non-
elderly person with disabilities), and their non-smoking residents 
would have the potential to experience health benefits from a reduction 
of exposure to SHS. PHAs will also benefit from a reduction of damage 
caused by smoking, and residents and PHAs both gain from seeing a 
reduction in injuries, deaths, and property damage from fires caused by 
prohibited tobacco products. Estimates of these and other rule-induced 
impacts are summarized in the following table:

----------------------------------------------------------------------------------------------------------------
                                                                                Amount  ($millions)
           Source of impact                  Type of impact      -----------------------------------------------
                                                                        Low          Standard          High
----------------------------------------------------------------------------------------------------------------
PHA Compliance/Enforcement \1\........  Recurring Cost (highest                6             7.7              30
                                         initially).
Inconvenience \2\.....................  Recurring Cost..........              56              94             340
PHA Reduced Maintenance \3\...........  Recurring Benefit.......            15.9            21.3            37.5
PHA Reduced Fire Risk \4\.............  Recurring Benefit.......             4.7             4.7             4.7
Residents' Well-Being \5\.............  Recurring Benefit.......             101             283             314
Net Benefits \6\......................  Recurring Net Benefits..            -248            +207            +262
----------------------------------------------------------------------------------------------------------------
\1\ The high estimate includes initial costs of implementation which could run as high as $30 million per year.
  The low and standard include only recurring costs. The low estimate includes a low-end cost estimate of
  eviction to a PHA ($700 per case and $500,000 in aggregate). The standard estimate includes a high estimate of
  eviction costs ($3000 per case and$ 2.2 million in aggregate).
\2\ The low and standard estimates are generated from the price-elasticity of demand for cigarettes and assumed
  reduction in smoking derived from studies of smoking bans. The high estimate was generated from a study of
  public health policies on SIDS and inferring behavioral change of smokers from the impact of SIDS.
\3\ The low and high estimates are based on a range of $1,250 to $2,955 per unit. The standard estimate is based
  on an estimate of $1,674 per unit.
\4\ HUD does not have data to predict a range of fire reduction risks.
\5\ The low and standard estimates of residents' well-being is estimated using the rent premium approach. The
  high estimate is derived from Quantitative Approach #3 described in the Appendix 1.
\6\ The standard net benefit is equal to the sum of the standard benefits less the less the sum of the standard
  costs. The low net benefit is equal to the low benefits less the high costs. The high net benefit is the high
  benefits less the low costs.

    For additional details on the costs and benefits of this rule, 
please see the Regulatory Impact Analysis (RIA) for this rule, which 
can be found at www.regulations.gov, under the docket number for this 
rule. Additional

[[Page 87432]]

information on how to view the RIA is included below.

II. Background

    On November 17, 2015, HUD published a proposed rule at 80 FR 71762, 
soliciting input from the public on requiring PHAs to have smoke-free 
policies in place for public housing. The proposed rule was an 
outgrowth of many years of research on the harms and costs associated 
with smoking and ongoing efforts from HUD to promote the voluntary 
adoption of smoke-free policies by PHAs and the owners/operators of 
federally subsidized multifamily properties. The preamble of this 
proposed rule contains more information on HUD's efforts and the 
findings on which HUD relied in proposing this regulation.
    As a result of these combined actions, over 600 PHAs have 
implemented smoke-free policies in at least one of their buildings. 
While this voluntary effort has been highly successful, it has also 
resulted in a scattered distribution of smoke-free policies, with the 
greatest concentration in the Northeast, West, and Northwest, which 
also results in unequal protection from SHS for public housing 
residents. This is due to several factors, including the fact that many 
of the benefits accrue to residents instead of PHAs, implementation of 
new policies can be difficult in fiscally tight times, uncertainty over 
whether indoor smoking bans are enforceable, and differences in the 
opinions and experience of the boards that govern PHAs. HUD recognizes 
that additional action is necessary to truly eliminate the risk of SHS 
exposure to public housing residents, reduce the risk of catastrophic 
fires, lower overall maintenance costs, and implement uniform 
requirements to ensure that all public housing residents are equally 
protected.
    Therefore, HUD is requiring PHAs to implement smoke-free policies 
within public housing except for dwelling units in a mixed-finance 
project. Public housing is defined as low-income housing, and all 
necessary appurtenances (e.g., community facilities, public housing 
offices, day care centers, and laundry rooms) thereto, assisted under 
the U.S. Housing Act of 1937 (the 1937 Act), other than assistance 
under section 8 of the 1937 Act.
    In finalizing this policy, it is important for HUD to reiterate 
that HUD's rule does not prohibit individual PHA residents from 
smoking. PHAs should continue leasing to persons who smoke. In 
addition, this rule is not intended to contradict HUD's goals to end 
homelessness and help all Americans secure quality housing. Rather, HUD 
is prohibiting smoking inside public housing living units and indoor 
common areas, public housing administrative office buildings, public 
housing community rooms or community facilities, public housing day 
care centers and laundry rooms, in outdoor areas within 25 feet of the 
housing and administrative office buildings, and in other areas 
designated by a PHA as smoke-free (collectively, ``restricted areas''). 
PHAs have the discretion to establish outdoor designated smoking 
locations outside of the required 25 feet perimeter, which may include 
partially enclosed structures, to accommodate smoker residents, to 
establish additional smoke-free areas (such as in and around a 
playground), or, alternatively, to make their entire grounds smoke-
free.
    Furthermore, section 504 of the Rehabilitation Act of 1973, the 
Fair Housing Act, and the Americans with Disabilities Act provide the 
participant the right to seek a reasonable accommodation, including 
requests from residents with mobility impairments or mental 
disabilities. A request for a reasonable accommodation from an eligible 
participant must be considered, and granted unless there is a 
fundamental alteration to the program or an undue financial and 
administrative burden.

III. Changes Made at the Final Rule Stage

    The only substantive change in this final rule from the proposed 
rule is that now waterpipes (also known as hookahs) are included in the 
list of products that may not be used in the restricted areas. PHAs are 
required under this final rule to only permit the use of waterpipes 
outside the restricted areas. While HUD found no evidence of human 
fatalities associated with hookahs, there were sufficient incidents of 
property damage to warrant their inclusion in this rule.
    In addition, HUD has changed the items covered under the smoking 
ban from ``lit tobacco products'' to ``prohibited tobacco products'' to 
make clear that waterpipes are included in the list of prohibited 
products.

IV. Responses to Comments

25-Foot Boundary From Buildings

    Some commenters objected to the proposed 25-foot smoke-free 
perimeter around all public housing buildings. Some felt that the 
distance was too large because it would force smokers off the property 
and onto sidewalks or adjacent areas, including the street. Others 
expressed concern that the distance would be too great for elderly 
residents or residents with disabilities or would place residents in 
danger from having to travel so far. Some believed that the distance 
could subject smokers to crime or would force parents to leave sleeping 
children. Some also suggested that forcing residents to go so far to 
smoke would cause them to leave public housing, increasing turnover 
costs for PHAs.
    Other reasons for objecting included an argument that it would 
effectively require PHAs to build designated smoking areas or it would 
be impossible to enforce. Commenters stated that requiring smokers to 
go outdoors is enough and that residents should be able to smoke on 
their porches or balconies. Some wrote that any extra perimeter is 
unfair if there is not a shared porch or landing where smoking there 
would affect others.
    Commenters objecting to the 25-foot distances suggested that 
instead PHAs be allowed to create their own policies regarding outdoor 
smoking and any distance restrictions around buildings, taking their 
own layouts into account. Others suggested that HUD allow PHAs to 
comply with existing smoke-free policies or use minimum distances 
required by state laws.
    Several commenters pointed out that PHAs may use office space in 
buildings not owned by the PHA, and the PHA has no control over the 
actions of other tenants in the building. These commenters asked for 
additional clarity on how the proposed rule would apply to such 
situations.
    Some commenters suggested alternative requirements to the 25-foot 
barrier, including a minimum distance from common entrances or using a 
shorter distance such as 15 or 20 feet. Commenters also asked HUD for 
additional insight into their rationale for a 25-foot perimeter.
    A group of commenters, however, supported the perimeter and even 
requested that HUD expand the outdoor restrictions. Some stated that 25 
feet may not be enough to protect children, and that outdoor smoking 
should also be banned in areas frequented by children, particularly 
playgrounds. Some suggested that the perimeter be extended to 25 feet 
from all playgrounds. Other commenters suggested that all common areas, 
such as pools, should also be included in the smoke-free zone. 
Commenters suggesting that the smoke-free zone be more than 25 feet 
asked for a range of new distances, from 40-50 feet to 100 feet. 
Commenters stated that 25 feet may still be too close to buildings to 
prevent

[[Page 87433]]

smoke drift. Some also asked that HUD expressly prohibit parking lots 
from being used as designated smoking areas.
    Several commenters suggested that the smoke-free perimeter should 
be extended to cover the entire property. These commenters stated that 
such a policy would protect residents from drifting smoke in designated 
areas or would make smoke-free enforcement easier. Another commenter 
suggested that HUD should allow a PHA to designate a smoking area, 
outside of which no smoking would be allowed.
    HUD Response: HUD appreciates the comments on this part of the 
rule, and recognizes that for some developments, residents may have to 
cross the street to be 25 feet away from the building. HUD included the 
25-foot perimeter in the proposed rule based on several factors. A 
smoke-free perimeter of sufficient size must be established around 
doorways in order to limit smoke exposure to individuals entering and 
leaving buildings. A sufficient perimeter is also needed to prevent SHS 
from entering windows that are open in units on lower floors and to 
prevent SHS exposure to individuals on lower floor balconies or 
porches. One study found that toxins present in SHS approach ordinary 
background levels approximately 23 feet from the source (Repace, 2005). 
In addition, local government ordinances have customarily adopted 25-
foot boundaries as standard practice when prohibiting outdoor smoking 
in the vicinity of public building entrances and windows. PHAs without 
ample grounds may consider working with their local municipalities to 
identify nearby public areas where residents who wish to continue 
smoking can do so in a safe environment. PHAs may also consider, if 
available, offering these residents the option to move to an alternate 
site that has more accessible space for outdoor smoking. The smoke-free 
policy must extend to all outdoor areas up to 25 feet from the housing 
and administrative office buildings, or to the PHA's property boundary 
in situations where the boundary is less than 25 feet from the PHA-
owned buildings. These decisions are at the discretion of the PHA. 
However, the rule requires the 25-foot restriction to be enforced 
across all PHAs.
    This policy is not intended to force anyone to move out of public 
housing, but instead to offer safe, decent and sanitary housing for all 
populations. HUD is not requiring any PHA to build a designated smoking 
area, but to work with residents to address any difficulties they 
encounter. HUD understands that PHAs only have the authority to 
implement smoke-free policies in buildings and office spaces they own.

Burden on PHAs

    Commenters objected to the proposed rule on the basis that it would 
impose too great a burden on PHAs. Some stated that this was an 
unfunded mandate from HUD. Others stated that the proposed rule would 
necessitate increased monitoring of residents without increasing 
funding for PHAs, or would increase the workload of an already 
inadequate staff. Several commenters wrote that the proposed rule would 
add administrative burden in implementing the policies by requiring 
education of residents, and through increased enforcement efforts. 
Several commenters pointed out that implementing the policies would 
have costs related to unit turnaround, either due to increased 
evictions or as a result of residents voluntarily moving out. Some 
stated that the proposed rule would increase paperwork on the PHA 
without providing additional benefits to residents or that putting the 
burden of monitoring and enforcement on public housing administrators 
is not practical or fair.
    Commenters also stated that the policies would increase vacancies 
at public housing properties, stressing PHAs both financially and in 
Real Estate Assessment Center (REAC) evaluations. Commenters asked that 
HUD make financial incentives available to PHAs to offset 
implementation costs.
    HUD Response: HUD acknowledges that PHAs may incur training, 
administrative, legal and enforcement costs, as well as additional 
expenditure of staff time in these areas. These expenses are outlined 
in the Regulatory Impact Analysis (RIA). All PHAs receive an annual 
operating subsidy and capital fund grants, and could also use their 
operating reserves to cover the initial costs of implementing smoke-
free policies. PHAs that have already implemented smoke-free policies 
indicated in stakeholder listening sessions that the costs were less 
than they expected once the smoke-free policy was fully implemented, 
and after that there were savings in unit turnover costs. HUD expects 
that costs will be minimized by PHAs' utilization of existing HUD 
resources on the smoke-free policy and continued usage of standard 
lease enforcement procedures. Additionally, HUD has no evidence that 
this policy will increase vacancies. In contrast, housing agencies that 
have implemented smoke-free policies have experienced greater demand 
for their units. This rule will not impose any Federal mandates on any 
state, local, or tribal governments or the private sector within the 
meaning of the Unfunded Mandates Reform Act of 1995 (UMRA).

Burden on Small PHAs

    In addition to the concerns about burdens on PHAs generally, some 
commenters expressed concerns with burdens on small PHAs. Some stated 
that the proposed rule would have an outsized impact on small PHAs' 
administrative expenses. Others commented that there was not enough 
information in the proposed rule on how maintenance or insurance costs 
would be lower for small PHAs. Others stated that small, rural PHAs 
would be at a disadvantage because they are unable to partner with 
outside organizations to help with implementing the rule in a way that 
larger, more urban PHAs could. Some commenters also expressed concerns 
that small PHAs face greater competition in the affordable housing 
market, so a smoking ban would increase their vacancy rates.
    HUD Response: Although some aspects of the rule may be burdensome, 
as noted in the RIA, HUD expects these burdens to be accompanied by the 
benefits of smoke-free policies, including reduction in maintenance 
costs, less risk of catastrophic fires, and fewer residential 
complaints from residents who are impacted by smoke. Additionally, 
creating a smoke-free environment may be more attractive to tenants and 
could result in increased leasing. In fact, some PHAs use smoke-free 
policies as a marketing feature to attract tenants. Cost savings are 
expected to be realized in the less expensive turnover of rental units. 
For example, painting and carpet cleaning costs are expected to be much 
lower with a smoke-free policy in place.
    The capital and operating funds can be used to implement smoke-free 
policies. Note, however, that capital funds can only be used for 
eligible activities identified in 24 CFR 905.200. Financial costs 
relative to funding for small PHAs are not expected to be greater than 
relative costs facing larger PHAs. Small PHAs, like large PHAs, can 
request insurance premium allowances from their insurance providers 
after implementing smoke-free policies.
    Housing agencies are encouraged to start the process of 
implementing smoke-free policies early so that the necessary 
implementation activities can be spread out over the allowed 18-month 
implementation period with regular lease renewal practices (e.g., lease 
recertification). Small PHAs unable to partner with as many outside 
organizations will have access to

[[Page 87434]]

national smoking cessation resources such as 1-800-QUIT-NOW, a toll-
free portal which routes callers to their state quitline, and community 
health centers for any smoking cessation needs. HUD is also working 
with federal partners to identify geographical areas with the greatest 
need for resources, and will, when possible, work to provide additional 
technical assistance. Best practices on moving to a smoke-free 
environment are found on HUD's Web page for Smoke-Free Housing Toolkits 
(http://portal.hud.gov/hudportal/HUD?src=/smokefreetoolkits1). 
Additional smoke-free guidance will be made available to PHAs.
    HUD has no evidence that this policy will increase vacancies. In 
contrast, housing agencies that have implemented smoke-free policies 
have experienced greater demand for their units.

Burden on Residents

    Many commenters objected to the proposed rule because of the burden 
it would place on public housing residents. Some stated that an indoor 
smoking ban is unfair to persons with disabilities who cannot easily 
travel outside their units, particularly if they live alone and cannot 
leave without help. Others commented that it was not right to force the 
elderly or persons with disabilities outside in bad weather, putting 
their health at risk. Some simply stated that it would be unfair to 
make the elderly or persons with disabilities walk that far to smoke. 
Some commented that people use smoking to deal with medical issues; 
prohibiting indoor smoking would force them to forego the use of 
nicotine to combat their pain.
    Other commenters focused on the effects the proposed ban would have 
on those with mental health issues who may rely on smoking to help deal 
with those issues. Some stated that residents in acute stages of post-
traumatic stress syndrome need to smoke to calm down but cannot leave 
their apartment. Some stated that smoking helps people calm down and 
relieve stress, and this rule would increase their burden. Several 
commenters stated that the use of eviction as an enforcement mechanism 
would result in the most vulnerable residents in public housing, who 
need secure housing the most, being forced out of their homes.
    Some commenters stated that forcing residents, particularly women, 
outside at night and in bad weather would put them in danger.
    Commenters stated that the rule should exempt PHAs serving seniors 
or residents with disabilities to avoid discrimination problems. Others 
asked that HUD allow PHAs to grandfather in existing residents; some 
pointed out that the smoke damage is already done, and it will be 
difficult to tell if the smell of smoke is from current or past 
smoking. However, other commenters stated that HUD should not allow 
smoke-free policies to be grandfathered in for existing public housing 
residents. These commenters stated that grandfathering the smoking ban 
for some but not all the residents would make enforcement difficult.
    HUD Response: Although smokers will face new requirements, other 
residents will generally benefit from an improved quality of life that 
minimizes the dangers of indoor smoking and SHS exposure. In addition, 
residents should experience improved indoor air quality and reduced 
interpersonal friction among neighbors exposed to others' smoking.
    There is no ``right'' to smoke in a rental home, and smokers are 
not a protected sub-class under anti-discrimination laws. In addition, 
this rule does not prohibit smoking by residents; rather, it requires 
that if residents smoke that they do so at least 25 feet away from the 
buildings. HUD is aware that commenters and national surveys suggest 
that persons with disabilities tend to smoke at a higher rate than 
persons without a disability. See national survey of smoking prevalence 
among those with disabilities at https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6444a2.htm. PHAs are encouraged to engage with these 
residents early and often when developing the smoke-free policy and to 
work with social service agencies to identify other alternatives to 
smoking in their units. This rule grants flexibilities to PHAs in 
addressing difficulties encountered by residents. In the case that a 
particular resident is especially burdened by the smoke-free policy, 
the PHA may consider such flexibilities as moving that resident to a 
first-floor unit which would provide easier access to smoking outside 
of their units, or modifying a walkway for easier use by that resident 
(e.g. adding additional lighting). HUD encourages PHAs to ensure an 
appropriately safe environment for all residents, smokers and 
nonsmokers alike.
    HUD is not aware of any medical conditions for which smoking is 
considered a legitimate, proven treatment. Also, in situations where 
nicotine treatment is appropriate (i.e., smoking cessation) it can be 
delivered orally or through dermal applications. Research has shown 
that smokers with behavioral health conditions (i.e., mental and/or 
substance abuse disorders) actually benefit from quitting smoking. As 
summarized by the Substance Abuse and Mental Health Services 
Administration, research has demonstrated that quitting smoking can 
decrease depression, anxiety, and stress, and for those in treatment 
for substance use disorders, smoking cessation can increase long-term 
abstinence from alcohol or other drugs.\7\
---------------------------------------------------------------------------

    \7\ http://www.samhsa.gov/sites/default/files/topics/alcohol_tobacco_drugs/tobacco-behavioral-health-issue-resources.pdf.
---------------------------------------------------------------------------

    Additionally, under this regulation, PHAs cannot ``grandfather'' 
tenants by exempting them from the application of the rule. PHAs that 
have implemented smoke-free policies have reported significant 
implementation challenges when they allow current residents to be 
``grandfathered'' into the policy. Allowing this situation presents 
additional enforcement challenges and will only prolong the time that 
other residents are exposed to SHS and the risk of fire.

Smoking Cessation

    Many commenters asked HUD to include cessation help in the final 
rule. Commenters had a variety of suggestions on the best way to 
provide such services. Some stated that HUD should partner with other 
federal agencies such as the National Institutes of Health or Health 
and Human Services to provide resources; they stated that Health 
Centers target the same populations served by public housing. 
Commenters referenced the national quitline or state-operated quitlines 
as possible resources. Commenters stated that PHAs should be required 
to use cessation services that are proven to be effective, and 
suggested that PHAs and HUD work with state and local health agencies 
or tobacco prevention and cessation programs for resources. Some 
commenters pointed out that there is cessation help available through 
Medicaid and private insurance plans. Commenters also asked that HUD 
provide toolkits or other help to PHAs looking to partner with 
organizations to provide cessation help.
    Commenters specifically mentioned a variety of cessation methods or 
techniques. Commenters suggested that HUD mandate that the types of 
required cessation treatments be varied instead of limited to a few 
options. Some requested that HUD provide nicotine replacement therapy. 
Some stated that any cessation courses or counseling be provided on-
site. Some specifically stated that PHAs should give residents 
information on the interaction between

[[Page 87435]]

nicotine addiction and psychotropic drugs.
    Commenters stated that cessation support should begin now and 
continue for a longer period of time after the effective date of the 
rule. Commenters stated that any cessation materials should be 
available in languages other than English when appropriate for the 
PHA's population.
    Some commenters suggested that HUD should supply funding for the 
cessation services or at least help PHAs locate funding, especially if 
the PHA is serving a population with mental health issues. Several 
suggested that PHAs be allowed to use savings generated by the proposed 
rule to pay for incentives for cessation and associated costs of 
treatment programs such as child care or transportation. Commenters 
stated that the time that residents spend taking or volunteering at 
cessation courses should count towards their community service 
requirement or that PHAs should be able to count funding provided for 
cessation help and incentives as funding towards fulfilling Section 3 
requirements.
    Some commenters stated that residents face a variety of barriers to 
quitting smoking, including the fact that limited cellphone minutes or 
language barriers interfere with the use of quitlines. Others stated 
that it would be unfair to hold PHAs accountable for public health 
outcomes like cessation. Commenters were also concerned that rural PHAs 
would not have the same access to cessation tools and programs as PHAs 
in urban areas. Commenters asked HUD to explicitly forbid PHAs from 
requiring cessation as part of enforcement efforts.
    HUD Response: HUD acknowledges the importance of connecting 
residents interested in quitting smoking to cessation resources, 
preferably at no cost. Although HUD will not directly provide cessation 
assistance, HUD has resources available on Healthy Homes Web site 
(http://portal.hud.gov/hudportal/HUD?src=/program_offices/healthy_homes/hhi) for residents interested in cessation. Medicaid 
covers the cost of tobacco cessation services and prescription smoking 
cessation medications for recipients, and although Medicaid coverage 
varies by state, all 50 states offer at least some smoking cessation 
coverage. Residents of all states also have access to ``quitlines,'' 
which are free evidence-based cessation services that residents can 
access by calling 1-800-QUIT-NOW. HUD is also working closely with 
Federal agencies involved in tobacco control to help make cessation 
resources available to residents. For example, the Centers for Disease 
Control and Prevention (CDC) has coordinated with state tobacco control 
programs (i.e. health departments that receive CDC tobacco control 
grants in all 50 states) to assist PHAs in implementing smoke-free 
policies in their respective states. The CDC is also developing 
educational materials for housing managers and residents to help link 
them to smoking cessation services (e.g. community health centers). 
Federally Qualified Health Centers, supported through the Health 
Resources and Services Administration, serve many PHA residents and 
have made promotion of smoking cessation a top priority. The guidance 
that HUD has created to date emphasizes the value of partnerships 
between housing providers and local organizations (e.g. local health 
departments and clinics, and tobacco control organizations such as the 
American Lung Association) in making smoking cessation services 
available to residents.
    Commenters on the proposed rule provided a lengthy list of 
resources that they used to assist residents. HUD will make this 
information, where applicable, available to interested PHAs.
    Section 3 is a provision of the Housing and Urban Development Act 
of 1968 that ensures employment and other economic opportunities 
generated by HUD financial assistance are directed to low-income 
persons, particularly those receiving housing assistance. Section 3 
requirements may be fulfilled to the extent residents are employed in 
providing cessation services, in accordance with 24 CFR part 135, 
provided that employment opportunities for cessation services are 
generated by the use of covered PIH assistance.
Definitions
    Commenters asked HUD for expanded definitions of several key terms, 
particularly ``smoking''. Several asked that HUD define the term 
broadly to capture a variety of dangerous products and not to limit the 
rule to ``lit tobacco products'' in order to be consistent with 
existing state and local standards.
    Other requests for definitions included definitions for ``smoke,'' 
``electronic smoking devices,'' ``hookahs,'' ``enclosed,'' ``indoor 
area,'' and ``partially enclosed.'' Some commenters were concerned that 
allowing for partially enclosed designated smoking areas would run 
against current state indoor smoking bans. Commenters also asked that 
HUD change the phrase ``interior common areas'' in the space where 
smoking is banned to be ``interior areas'' to make it clearer that 
smoking is prohibited in all indoor areas.
    Commenters often provided examples from model or existing codes and 
standards for HUD to use as guides for many of these definitions.
    HUD Response: HUD does not define ``smoking,'' but rather 
``prohibited tobacco products.'' HUD is restricting the use of 
prohibited tobacco products, including cigarettes, cigars, pipes, and 
waterpipes (hookahs). Because PHAs must ban the use of specific items, 
it is unnecessary to define what smoke is. In addition, this rule does 
not supersede state or local smoking bans, so if such laws prohibit the 
use of partially enclosed designated smoking areas, the PHAs would 
still be subject to those requirements.
    HUD has changed the phrase ``interior common areas'' to ``interior 
areas.''

Designated Smoking Areas (DSAs)

    Some commenters stated that the indoor ban was fine, but HUD should 
require PHAs to provide a reasonable DSA. Commenters wrote that any DSA 
should be sheltered from the weather, have shade and seating, and 
should be accessible to anyone with mobility issues and have 
appropriate safety features, such as lighting. Commenters stated that 
any DSA should be far enough away from buildings to prevent smoke 
drift, which some commenters specified as at least 25 or 50 feet from 
other smoke-free zones. Some stated that residents should have input on 
deciding whether or not to have a DSA or where any DSA should be 
located. Some asked that PHAs be required to sign memoranda of 
understanding with local police forces to clarify that using the DSA 
would not count as loitering.
    Commenters expressed concern that the cost of building and 
maintaining benches or other amenities in a DSA would be too expensive 
for PHAs. Some stated that HUD should provide the funding or that PHAs 
should seek funding from the tobacco industry to pay for them. Some 
also stated that smokers should be allowed to contribute money to pay 
for covered smoking areas.
    Some commenters stated that HUD should encourage outdoor smoke-free 
areas and discourage DSAs entirely, as having DSAs could raise concerns 
regarding reasonable accommodations and accessibility. Some commenters 
suggested that PHAs with DSAs evaluate their policies on a regular 
basis to determine if it would be appropriate to make the property 100 
percent smoke-free. Commenters also stated that HUD should not 
encourage partially enclosed DSAs, as they can trap smoke,

[[Page 87436]]

provide hidden areas for crime, and violate state clean air laws.
    HUD Response: HUD does not mandate DSAs. However, some PHAs have 
achieved better compliance with smoking bans in restricted areas when 
there is a designated location with seating. Also, the use of DSAs 
could potentially make implementation of the smoke-free policy easier 
because they demonstrate to a smoking resident how far he or she must 
move away from the building. If a PHA decides to implement a DSA, HUD 
recommends appropriate wellness and safety features, such as 
appropriate seating and shade. If a PHA chooses to designate a smoking 
area for residents, it must ensure that the area is accessible for 
persons with disabilities, in accordance with a PHA's obligations under 
section 504 of the Rehabilitation Act of 1973, Title II of the 
Americans with Disabilities Act, and the Fair Housing Act. This may 
include a flat or paved pathway, ramp, and adequate lighting depending 
on the need and area selected. HUD encourages PHAs to include DSAs in 
future capital needs planning.

Electronic Nicotine Delivery Systems (ENDS)

    Many commenters asked that HUD include ENDS in the list of 
prohibited tobacco products. These commenters pointed out that the 
aerosol emitted by the devices is not harmless, and the toxins in the 
aerosol are higher than in FDA-approved nicotine inhalers. Others 
stated that ENDS pose risks of fire or explosion due to their batteries 
or poisoning from the liquids. Commenters stated that ENDS also 
increases third-hand exposure to nicotine (nicotine that settles on 
surfaces within a building), and banning ENDS may help stop the 
increase of ENDS usage among teens.
    Commenters stated that ENDS are not devices approved for stopping 
smoking, and their use can undermine efforts to de-normalize smoking. 
Others commented that the use of ENDS can undermine enforcement 
efforts, either by making it appear that the policy is not taken 
seriously, or by causing confusion about whether it is ENDS or a 
cigarette being used.
    Some commenters supporting the ban of ENDS asked that if HUD does 
not include ENDS in the proposed rule, that HUD make it explicit that a 
PHA can choose to do so themselves. Others asked HUD to track and share 
research to help PHAs make the case for including ENDS in smoke-free 
policies.
    Other commenters objected to the inclusion of ENDS in the indoor 
smoking ban. Some stated that the science on the harm caused by ENDS is 
not settled and therefore there is no justification at this time for 
including them in the policy, because prohibiting ENDS does not advance 
the proposed rule's goals of improved health and savings on maintenance 
costs. Commenters stated that ENDS are an important tool in stopping 
smoking and allowing them would therefore help to soften the larger no-
smoking policy, while adding flexibility to the proposed rule. Some 
commenters stated that the proposed rule does not contain enough 
justification to include ENDS in the policy and therefore, if HUD 
decides to include them, there should be another round of comments.
    Commenters also asked that if HUD includes ENDS in the final 
policy, HUD consider limiting the places ENDS are prohibited only to 
common areas. Some stated that enforcing ENDS would be more difficult 
than only enforcing a cigarette ban, because ENDS lacks some of the 
markers of cigarette smoke such as a smell.
    HUD Response: Research to date on ENDS is still developing and 
lacks clear consensus, in contrast with research on the effects of 
cigarettes and other tobacco products. Unlike with products that 
involve burning of substances, there is little evidence that ENDS 
significantly increases fire risks, and there is no conclusive evidence 
that the vapors emitted by ENDS cause damage to the units themselves. 
Therefore, prohibiting ENDS will not necessarily reduce the risk of 
catastrophic fires or maintenance costs for PHAs, and this rule does 
not prohibit the use of ENDS.
    However, PHAs may exercise their discretion to include a 
prohibition on ENDS in their individual smoke-free policies if they 
deem such a prohibition beneficial. In addition, if evidence in the 
future arises that banning ENDS will, for example, result in 
significant maintenance savings, HUD will reconsider including them in 
items that are prohibited inside public housing.

Enforcement

    Many comments focused on how PHAs are to enforce smoke-free 
policies. Some commenters stated that enforcement would be impossible 
because PHAs would not be able to prove that residents were smoking or 
the exact origins of a smoke smell. Commenters asked for additional 
guidance on how to detect violations and expressed concern that 
enforcing policies across scattered sites or in non-business hours 
would be extremely difficult. Commenters also stated that HUD should 
provide additional guidance on who can report violations and that HUD 
should place the burden of proof of violations on the complaining 
party.
    Commenters also expressed concern about having a primary method of 
enforcement be reporting from tenants. Commenters stated that relying 
on residents to report will erode trust and increase tensions between 
residents, staff, and management. Some commenters stated that requiring 
residents to report violations would lead to additional confrontations 
with police. Commenters stated that residents should be able to report 
violations in a way that makes them feel safe. Some commenters stated 
that resident reporting will require additional mediation between 
tenants and that HUD should create a method of enforcement that does 
not rely on residents reporting each other, such as using routine 
maintenance inspections to look for evidence of smoking indoors.
    Some commenters asked for specific guidance on how PHAs are to 
enforce smoke-free policies, and asked for HUD to publish successful 
enforcement actions from agencies with smoke-free policies in place. 
Commenters expressed concern that some PHAs or managers would not 
enforce the smoke-free policies consistently, leading to liability for 
PHAs. To address such concerns, commenters suggested that HUD impose 
heavy fines on managers who do not enforce policies, conduct site 
visits to ensure enforcement, and provide information to residents on 
whom to contact if managers are not enforcing policies. Commenters also 
stated that the costs of enforcement will be equal to or greater than 
any savings on maintenance generated by smoke-free policies.
    Commenters also expressed concern about the use of eviction as an 
enforcement mechanism, stating that evictions do not help create strong 
communities. Commenters also wrote that increased evictions will 
increase homelessness and costs to PHAs. Commenters stated that it was 
unfair to subject children to homelessness from eviction for the 
actions of their parents, that it would be unfair to evict an entire 
family for the actions of one individual, or that it would be unfair to 
evict tenants for the actions of their guests. Commenters stated that 
relying solely on eviction sets up residents for failure and puts 
groups at the highest risk for discrimination in housing or with higher 
health risks at even greater risk of homelessness. Some stated that if 
families who are evicted as a result of this rule tend to fall into a 
protected class, there might be a disparate impact claim against the 
PHA or HUD.

[[Page 87437]]

    Some stated that evicting families for a legal activity would be 
impossible because courts would not uphold evictions, or even that 
local ordinances may make evictions for smoking illegal. Commenters 
suggested that the rule explicitly state that smoking in violation of 
the PHA's policy is an offense that can result in eviction in order to 
allow courts to enforce evictions.
    Commenters suggest that HUD require PHAs to take specific, 
progressive enforcement steps prior to allowing eviction, in particular 
focusing on education and cessation treatments.
    Others stated that the rule should minimize evictions, or 
eliminating evictions from enforcement options completely, perhaps 
using a system of fines, positive incentives, or cessation treatment 
instead. Commenters stated that the final rule language should specify 
that violation of a smoke-free policy is not a material or serious 
violation of the lease. Some commenters suggested that HUD consider 
structuring the smoke-free requirement like the community service 
requirement, where noncompliance mandates specific actions to allow a 
tenant to ``cure'' the violation and where PHAs do not renew leases 
instead of evicting tenants.
    HUD Response: HUD believes that allowing a PHA to enforce its 
smoke-free policy through lease enforcement actions is the best way to 
ensure compliance with such policies. Upon successful implementation, 
smoke-free policies should be enforced similar to other policies under 
lease enforcement procedures. HUD does not expect the enforcement of 
smoke-free policies to be significantly easier or more difficult than 
other unit-focused policies PHAs have established. Based on experiences 
of the PHAs that have already implemented smoke-free policies, when 
there is resident engagement in developing the plan and an effective 
plan for implementation, policy enforcement is less likely to lead to 
evictions. As written in this rule, the lease and appropriate 
amendment(s) will be the primary smoke-free policy enforcement 
mechanism. All residents must sign the amendment(s) as a condition of 
their continuing occupancy. PHAs will have local flexibility as to how 
the lease amendment process occurs during the 18-month implementation 
period after the final rule effective date. HUD has clarified that the 
adoption of a PHA smoke-free policy is likely to constitute a 
significant amendment or modification to the PHA Plan, which would 
require PHAs to conduct public meetings according to standard PHA 
amendment procedures. Therefore, PHAs are encouraged to obtain board 
approval when creating their individual smoke-free policies.
    HUD affords PHAs flexibility in designing policies on reporting of 
violations by other residents, in order to fit the local needs of the 
housing communities. However, a PHA must sufficiently enforce its 
smoke-free policy in accordance with the rule's standards, by taking 
action when it discovers a resident is violating the policy. PHAs must 
ensure due process when enforcing the lease. If a PHA pursues lease 
enforcement as a remedy, public housing residents retain their right to 
an informal and formal hearing before their tenancy is terminated. As 
currently written, the new regulations intentionally distinguish lease 
violations based on criminal behaviors from violations based on civil 
behaviors, and place smoke-free violations in the latter category to 
discourage overly aggressive enforcement approaches and decrease the 
potential of eviction and homelessness.
    Termination of assistance for a single incident of smoking, in 
violation of a smoke-free policy, is not grounds for eviction. Instead, 
HUD encourages a graduated enforcement approach that includes 
escalating warnings with documentation to the tenant file. HUD has not 
included enforcement provisions in this rulemaking because lease 
enforcement policies are typically at the discretion of PHAs, and it is 
appropriate for local agencies to ensure fairness and consistency with 
other policies. HUD also is not requiring any specific graduated 
enforcement procedure, because public housing leases are subject to 
different local and state procedural requirements that must be met 
prior to eviction. Best practices regarding smoke-free implementation 
and enforcement are available at http://portal.hud.gov/hudportal/HUD?src=/smokefreetoolkits1. HUD will provide additional guidance in 
the future with examples of graduated enforcement steps.
    This rule does not expressly authorize or prohibit imposing fines 
on non-complying PHA managers. Once the rule takes effect, HUD may use 
PHA certifications to verify that PHAs have implemented a smoke-free 
policy within the required timeframe. HUD may also use the periodic 
REAC inspections and OIG audits to help monitor and confirm whether the 
policy is being enforced. The PIH regulations at 24 CFR 903.25 state 
that to ensure that a PHA is in compliance with all policies, rules, 
and standards adopted in the PHA Plan approved by HUD, HUD shall, as it 
deems appropriate, respond to any complaint concerning PHA 
noncompliance with its plan. If HUD determines that a PHA is not in 
compliance with its plan, HUD will take whatever action it deems 
necessary and appropriate.

Evaluation

    Commenters asked that HUD have some sort of plan in place to 
evaluate the effect of the proposed rule. Some stated that HUD should 
evaluate, after 1 or 2 years, the success of the rule in getting units 
smoke-free and whether there have been health benefits. Others stated 
that HUD should review how each PHA has implemented a smoke-free 
policy, including surveys to residents on how the policy is working and 
if improvements are needed. Some commenters stated that the evaluation 
should be of the PHAs themselves, including how they document 
violations and manage accommodation requests, how well PHAs comply with 
the requirements and adhere to ``best practices'', and the PHAs' 
outcomes of the smoke-free policies. These evaluations could be done as 
part of periodic reviews of PHA performance in general.
    Other suggestions for evaluations focused on the effects of the 
rule itself. Some suggested that HUD should survey tenants to track 
smoking cessation progress. Others stated that HUD should evaluate 
support for the policies among tenants, numbers of complaints, health 
changes, costs, savings, and turnover and eviction as a result of the 
policies. Commenters stated that HUD should carefully keep track of the 
number of evictions due to smoke-free policies. Commenters suggested 
that HUD should study whether completely smoke-free grounds would be 
appropriate.
    Commenters stated that HUD could partner with other agencies for 
evaluation studies.
    HUD Response: HUD agrees that it is important to evaluate various 
aspects of the implementation of the rule by the PHAs, including the 
benefits on indoor air quality and resident health as well as the 
actual implementation process. Although HUD has identified and made 
available effective practices from housing providers that have 
implemented smoke-free policies, there is value in doing this using a 
more systematic process (e.g., see http://portal.hud.gov/hudportal/documents/huddoc?id=SFGuidanceManual.pdf). HUD is supporting research 
on the implementation of smoke-free policies in federally assisted 
multifamily properties through its Healthy Homes Technical Studies 
Grant Program. A goal of this research is to identify

[[Page 87438]]

effective implementation practices as well as impacts on indoor air 
quality and smoking cessation among residents. HUD has also worked with 
the National Center for Health Statistics to match administrative data 
for residents of federally assisted housing (including public housing) 
with multiple years of data from the National Health Interview Survey. 
This is a cost effective way to track potential changes in the smoking 
behavior of residents over time (i.e., before and after the rule 
becomes effective). HUD is a member of a work group that includes 
federal partner agencies in order to explore opportunities for 
cooperative activities to evaluate the impact of the rule. HUD is also 
cooperating with researchers who are part of a university/philanthropy 
partnership planning to survey PHAs that have already implemented 
smoke-free policies, in order to capture lessons learned that will be 
valuable for PHAs that have not yet implemented smoke-free policies. 
This effort will include interviews of both management and residents.

Expansion of Applicability of Rule

    Some commenters felt that it was unfair to only cover public 
housing with this proposed rule. Commenters felt that the covered 
properties should be expanded to include all multifamily dwelling units 
in the country, all rental and subsidized housing, mixed-finance 
developments, Section 8 vouchers, or all properties receiving HUD 
assistance.
    However, other commenters stated that HUD should never consider 
requiring homeless assistance programs to have a smoke-free policy. 
Some also stated that HUD should not expand the requirement beyond 
public housing.
    Commenters did have some questions about the applicability of the 
rule. Some asked about whether the rule applies to non-dwelling units 
leased to other entities. Others asked whether low-income housing on 
tribal lands would be covered. Commenters also asked how this rule 
would apply to public housing projects converting their assistance 
under the Rental Assistance Demonstration Program.
    HUD Response: The final rule does not apply to tribal housing, 
mixed-finance developments, or PHA properties that have converted to 
project-based rental assistance contracts under RAD. HUD will continue 
to promote voluntary adoption of smoke-free policies by all owners 
receiving project-based assistance and may consider expansion of 
requirements to additional housing assistance programs in the future. 
In addition, HUD will issue a solicitation of comments in the Federal 
Register to obtain feedback on the prospect of requiring smoke-free 
policies in other HUD-assisted properties. Absent regulations, private 
owners and PHAs can continue to use HUD's ``Smoke-Free Housing Toolkit 
for Public Housing Authorities and Owners/Management Agents'' 
(available at http://portal.hud.gov/hudportal/documents/huddoc?id=pdfowners.pdf) to help in implementation of smoke-free 
polices.

Flexibility for PHAs

    Commenters objected to the mandate that PHAs create smoke-free 
policies, instead asking that it continue to be left up to the PHA's 
discretion. They stated that letting PHAs make the decision would allow 
them to decide where to allocate resources and best account for the 
needs of the residents and PHA. Other commenters simply asked that PHAs 
be allowed to craft policies they designed instead of having policies 
determined by HUD. Commenters also asked that small PHAs be given more 
flexibilities.
    Commenters specifically asked that PHAs be given flexibility with 
the implementation phase of smoke-free policies. Some asked for the 
ability to implement policies at a time of the year with pleasant 
weather to make compliance easier. Others asked for the ability to 
phase-in policies by buildings or properties instead of all at once; 
however, some commenters explicitly opposed phasing in the policy 
across buildings. Commenters also asked for a longer implementation 
period, even as much as 5 years.
    Another specific flexibility requested by commenters was for a PHA 
to establish buildings or scattered-site locations as designated 
smoking buildings, if physically separate from non-smoking buildings.
    Commenters also asked that PHAs with established smoke-free 
policies continue to keep the existing policies, even if the perimeter 
around buildings is less than 25 feet. These commenters stated that it 
would be extremely burdensome, costly, and confusing to change existing 
policies, and compliance with additional restrictions might impose 
additional costs, such as building shelters for smokers, that they have 
already decided are unnecessary. However, some commenters stated that 
PHAs should be required to conform to any policies that are stricter 
than what they may currently have in place.
    Some commenters also asked that HUD make it explicit that a PHA may 
adopt policies that are stricter than the ones required by HUD.
    Commenters also asked that HUD allow PHAs to have maximum budget 
flexibility during implementation to pay for up-front costs.
    HUD Response: HUD has been advocating for smoke-free housing since 
2009 because the health benefits to residents are substantial, and the 
costs and benefits to PHAs are also compelling in terms of reduction in 
maintenance and unit turnover costs. HUD applauds the more than 600 
PHAs that already have implemented policies in at least one building 
since HUD began promoting voluntary adoption of smoke-free housing 
policies. The rule's mandatory approach implements uniform standards 
and requirements which will greatly minimize the disproportionate 
exposure to SHS for public housing residents.
    The flexibility inherent in the rule allows PHAs to implement their 
smoke-free policies in a way that does not violate the standards 
established in the final rule. The final rule bans the use of 
prohibited tobacco products in all public housing living units, 
interior common areas, and all outdoor areas within 25 feet from public 
housing and administrative office buildings where public housing is 
located. The rule also gives PHAs the flexibility to limit smoking to 
DSAs, which may include partially enclosed structures, to accommodate 
residents who smoke.
    PHAs must exercise their discretion in a way that reasonably 
relates to the purpose of the rule, and PHAs face legal risk when 
imposing a standard that exceeds the scope of legal authority (e.g., is 
arbitrary and capricious). PHAs are encouraged to exercise their 
discretion and may adopt stricter smoke-free policies. This approach 
should always consider resident feedback prior to adopting stricter 
smoke-free policies.
    Budget flexibility in terms of combining operating, capital, or 
housing assistant payment funds is permitted to the extent otherwise 
provided under arrangements such as Moving to Work (MTW).

Funding

    Commenters stated that HUD should provide funding for the 
implementation costs of this rule, specifically through increased 
Operating or Capital Fund allocations. Commenters wrote that without 
additional staff to help, the smoke-free policies cannot be successful. 
Commenters also asked for additional funding to remediate and repair 
any damage caused by residents who are currently smoking.
    HUD Response: The rule provides no additional financial assistance 
for policy

[[Page 87439]]

implementation; however, HUD has already begun to mobilize our public 
health and private partners such as the Centers for Disease Control and 
Prevention, American Cancer Society, the American Lung Association and 
Environmental Protection Agency, among others, to support PHAs.

Implementation

    Many commenters expressed concern that tenants be adequately 
involved in a PHA's implementation of the final rule when effective. 
Commenters stated that HUD should require specific engagement 
activities. They stated that these requirements should include multiple 
meetings with tenants to educate them on the policy, how to comply, and 
what assistance is available to them. Commenters stated that PHAs 
should use community advisory boards to address issues and tenant 
concerns during implementation. Commenters stated that HUD should 
require PHAs to engage their residents, particularly on health issues 
associated with smoking and SHS, prior to amending leases; some stated 
that engagement should be ongoing for a year prior to a PHA amending a 
lease.
    To ensure that residents are fully engaged from the beginning, some 
commenters stated that HUD should specify that implementing a smoke-
free policy would require a significant amendment to the PHAs' plans. 
However, other commenters stated that PHAs with smoke-free policies in 
place should not have to make significant amendments.
    Commenters also suggested changes to the timeline for compliance 
with the final rule. Several stated that 18 months is not enough time 
for PHAs to have smoke-free policies in effect. Commenters stated that 
18 months was too short a time period to adequately educate tenants and 
get their support, amend leases, and do other supporting tasks like 
constructing DSAs. Some asked for specific time periods, from 24 to 36 
months to up to 3 years, while others asked for PHAs to be able to 
apply for more time. Commenters stated that allowing PHAs flexibility 
on the timeline for implementing the rule so that the PHAs could use 
the existing Annual Plan amendment process would save money and effort.
    Commenters alternatively asked that HUD allow for an implementation 
timeline in stages, allowing residents to participate voluntarily for 
the first 6 months, year, or 2 years of the policy before being subject 
to penalties.
    Some commenters, however, stated that 18 months was too much time, 
and stated that HUD should encourage PHAs to begin implementation as 
soon as possible after the final rule is effective, including providing 
cessation help and educational resources. Commenters suggested that 
PHAs should be able to implement smoke-free policies for new residents 
prior to that deadline, and some stated that HUD should require 
compliance within 6 months. Commenters asked if PHAs would be able to 
phase-in their properties during the 18-month period.
    HUD Response: HUD included in the proposed rule the 18-month 
timeframe after the final rule effective date for PHAs to enlist the 
involvement and support their resident councils, initiate cessation 
programs, post notices, and disseminate information to the residents, 
pursuant to PIH regulations and best practices among early smoke-free 
policy adopters. In the final rule, HUD has clarified that the adoption 
of a PHA smoke-free policy is likely to constitute a significant 
amendment or modification to the PHA Plan, which would require PHAs to 
conduct public meetings according to standard PHA amendment procedures. 
Therefore, PHAs are encouraged to obtain board approval when creating 
their individual smoke-free policies. HUD believes this approach will 
allow local organizations to pledge their support for the smoke-free 
policy and to support the mission of providing healthier housing for 
low-income residents.
    The PHA must consult with resident advisory boards to assist with 
and make recommendations for the PHA plan. Those recommendations must 
include input from PHA residents. With regard to the smoke-free policy, 
the PHA plan will list the PHA's rules, standards and policies that 
will govern maintenance and management of PHA operations. HUD believes 
that 18 months will provide PHAs sufficient time to conduct resident 
engagement and hold public meetings that are required when an amendment 
constitutes a significant change to the PHA plan.
    The final rule will become effective 60 days after publication in 
the Federal Register. Once the rule is effective, PHAs will then have 
18 months to implement smoke-free policies. PHAs must incorporate the 
smoke-free policy into resident leases. The lease will continue to be 
the legally binding document between the PHA and the resident. Leases 
(including recertifications, automatic renewals, new leases, lease 
addendums and modifications) can be modified at any time by written 
agreement between the resident and the PHA. PHAs may provide a specific 
date that the policy will take effect. PIH regulations permit PHAs to 
modify rules and regulations to be incorporated by reference into the 
lease form, as long as the PHAs provide at least 30 days' notice to all 
affected residents (see 24 CFR 966.5), and allow resident feedback on 
the new lease language (see 24 CFR 966.3). PHAs must consider this 
feedback prior to making the changes.
    To amend individual resident leases based on the modified lease 
form adopted by the PHA, a PHA must notify a resident of the written 
revision to an existing lease 60 days before the lease revision is to 
take effect and specify a reasonable time period for the family to 
accept the offer (see 24 CFR 966.4(l)(2)(iii)(E)). PIH regulations also 
provide that leases are required to stipulate that the resident has an 
opportunity for a hearing on a grievance of any proposed adverse action 
against the resident (see 24 CFR 966.52(b)). However, PHA grievance 
procedures are not applicable to class grievances and cannot be used as 
a forum for initiating or negotiating policy changes, including smoke-
free policy changes (see 24 CFR 966.51(b)).
    HUD strongly encourages PHAs to post signs referencing the new 
smoke-free policy. Signs must be accessible to all residents and 
visitors, and must be posted in multiple languages if appropriate for 
residents of the PHA, in accordance with HUD's current guidance on 
limited English proficiency. PHAs are not required to construct smoking 
shelters or DSAs.

Leases

    Commenters stated that the smoke-free language in leases should 
include not only the policy, but also information on any available DSAs 
or cessation services.
    HUD Response: A public housing lease specifies the rights and 
responsibilities between the PHA and tenant. If a PHA chooses to 
develop one or more DSAs, PHAs are encouraged to note the availability 
and location of any DSAs in the lease. HUD also encourages PHAs to 
share this information using less formal communication methods (e.g. 
letters, flyers, seminars, etc.) to ensure residents are aware of the 
policy. The information must be presented in pertinent places in 
various languages to help residents understand the policy.

Objections--Civil Rights

    Commenters objected to the idea behind the proposed rule, stating 
that prohibiting smoking in public housing is an invasion of civil 
rights because it would ban an individual's freedom to do something 
that is legal. Others stated that it was an invasion of smokers'

[[Page 87440]]

privacy. Some commented that people should be able to smoke in their 
own homes and that a smoking ban is authoritarian and invasive.
    Commenters also objected to the proposed policy because it does not 
prohibit smoking in private homes and therefore unfairly punishes the 
poor and working class. Commenters stated that smoking bans demonize 
and dehumanize smokers and discriminate against smokers. Some stated 
that if HUD is banning smoking, HUD should also ban all things that 
cause harm or smell, such as pet dander or smelly food.
    HUD Response: HUD believes that focusing on public housing is 
appropriate, as HUD and our PHA partners have already made significant 
progress in this area. More than 600 PHAs have already implemented 
smoke-free policies in at least one of their buildings since HUD began 
promoting voluntary adoption of smoke-free housing policies in 2009. 
HUD is not using this policy as a punishment for any group of people. 
Instead, HUD believes this policy will benefit many residents 
especially vulnerable populations (e.g. children, elderly persons, and 
persons with disabilities). This rule will protect the health and well-
being of public housing residents and PHA staff and is an opportunity 
to lower overall maintenance costs and reduce the risk of catastrophic 
fires. Smoke-free public housing helps HUD realize its mission of 
providing safe, decent and sanitary housing for vulnerable populations 
nationwide. Additionally, smoke-free policies are increasingly being 
adopted in market-rate rental housing and condominiums.
    In Constitutional jurisprudence, courts have found that smoke-free 
policies do not violate the Equal Protection Clause because there is no 
fundamental right to smoke,\8\ and the classification of a ``smoker'' 
does not infringe on a fundamental Constitutional right.\9\ In 
addition, the act of smoking is entitled to only minimal level of 
protection, and courts assess smoking-related Equal Protection claims 
under a rational basis standard of review \10\--meaning that those who 
challenge a smoke-free regulation bear the burden to prove that the 
regulation is not rationally related to a legitimate government 
interest.
---------------------------------------------------------------------------

    \8\ Brashear v. Simms, 138 F. Supp. 2d 693, 694 (D. Md. 2001).
    \9\ Fagan v. Axelrod, 550 N.Y.S. 2d 552, 560 (1990).
    \10\ See McGinnis v. Royster, 410 U.S. 263 (1973); Giordano v. 
Conn. Valley Hosp., 588 F. Supp. 2d 306 (2008).
---------------------------------------------------------------------------

    Courts \11\ have held that protecting persons from SHS is a valid 
use of the State's police power that furthers a legitimate government 
purpose.\12\ And, those courts considering Equal Protection challenges 
to smoking restrictions have concluded that the restrictions bear a 
reasonable relation to such legitimate state interests as: (1) 
Improving resident health and safety; (2) reducing fire hazards; (3) 
maintaining clean and sanitary conditions; and (4) reducing non-smoker 
complaints and threats of litigation.\13\
---------------------------------------------------------------------------

    \11\ The holdings referenced here are taken from jurisprudence 
on smoking prohibitions in public areas and in the state prison 
context.
    \12\ See Fagan v. Axelrod, 550 N.Y.S.2d 552, 560 (N.Y. Sup. Ct. 
1990).
    \13\ See Chance v. Spears, 2009 U.S. Dist. LEXIS 110304.
---------------------------------------------------------------------------

Objections--General

    Commenters stated that an indoor smoking ban would actually 
increase fires as people tried to hide their smoking and disposed of 
cigarettes improperly. Commenters also stated that they supported 
smoking bans in public places and near doors, but felt that smoking 
should still be permitted in an individual tenant's unit. Commenters 
suggested that instead of a smoking ban, PHAs could require a higher 
security deposit from smokers.
    Commenters also stated that given the number of individuals with 
mental health problems who rely on smoking, this rule would be unfair 
to that population. Commenters wrote that bans in individual units 
would make it harder for tenants with mental illnesses to maintain 
stable housing. Some objected to the rule because they stated that some 
individuals who smoke do so to avoid returning to prior addictions. 
Commenters stated that discouraging any part of the population from 
affordable housing programs is contrary to the mission of HUD and PHAs.
    Some commenters objected to the rule because they stated that the 
rule contradicts a recent notice from HUD that PHAs should slow 
evictions based on criminal history, while now encouraging evictions 
for legal activities. Other commenters stated that the rule contradicts 
Congressional direction to increase flexibility and reduce unnecessary 
regulatory burdens. Commenters also objected to the rule by stating 
that funding should be used for priorities other than enforcement of 
the rule, including evictions.
    HUD Response: This rule is an opportunity to lower overall 
maintenance costs and reduce the risk of catastrophic fires in 
properties while advancing the health of public housing residents and 
PHA staff. Smoking within a tenant's unit exposes other residents to 
SHS. As such, smoke-free public housing is fully aligned with HUD's 
mission of providing safe, decent and sanitary housing for vulnerable 
populations nationwide. HUD encourages all PHAs to work with all of 
their residents to ensure they fully understand the policy. In order to 
meet a successful 18-month implementation timeframe, HUD encourages 
community engagement and outreach so PHAs will be able to solicit 
support and involvement of their resident councils and tenants. 
Residents who smoke and comply with the smoke-free policy can continue 
their residency in public housing. During enforcement of their smoke-
free housing policies, HUD expects PHAs to follow administrative 
grievance procedures. Where there are violations of the smoke-free 
policy, HUD encourages PHAs to use a graduated enforcement approach 
that includes written warnings for repeated policy violations before 
pursuing lease termination or eviction. HUD will provide additional 
guidance with examples of graduated enforcement steps.
    HUD emphasizes that this rule, unlike previous HUD guidance on 
smoking, is not optional or merely a recommendation. However, PHAs may 
not treat tenants who smoke punitively in their implementation of this 
regulation by, for example, requiring a higher security deposit from 
tenants who smoke. Residents can be charged for property damage that is 
beyond normal wear and tear, in accordance with 24 CFR 966.4(b)(2).

Reasonable Accommodations

    Commenters asked for more information and further clarification on 
what PHAs could offer as a reasonable accommodation under the rule. 
Some expressed confusion on whether smokers were eligible for 
reasonable accommodations, and some commenters explained that the 
reasonable accommodation was not available to help with the smoking 
habit, but rather was intended to address the underlying disability 
that frustrates the tenant's ability to comply with the smoke-free 
policy. Commenters explained that individuals with mental health 
disabilities or cognitive or learning disabilities may have 
difficulties in understanding the new smoke-free policies or complying 
with traditional cessation treatments, and that any PHA not allowing 
reasonable accommodations for tenants with disabilities is not 
considering the whole picture.

[[Page 87441]]

    Others asked for specific lists of permissible accommodations or 
for best practices in providing reasonable accommodations. Some 
commenters requested that HUD explicitly state in the final rule that a 
PHA must grant appropriate requests for reasonable accommodations. 
Commenters also stated that HUD should take public comment on any 
future reasonable accommodation guidance.
    Some commenters stated that reasonable accommodations should not 
include the ability to smoke indoors. Commenters asked whether HUD 
would defend PHAs who do not allow indoor smoking as a reasonable 
accommodation. Some commenters stated that smoking in the tenant's unit 
should be allowable as a reasonable accommodation, particularly for the 
elderly in winter or individuals who are disabled and cannot leave 
their unit. Commenters have stated that smaller PHAs may not have 
accommodations to offer other than allowing smoking in a tenant's unit.
    Commenters offered other suggestions of permissible reasonable 
accommodations, including allowing the tenants to use ENDS in their 
unit, smoking closer to the building than the 25-foot barrier, 
additional time for compliance for those using cessation services, or 
moving smokers with mobility disabilities into units closer to 
elevators or on the ground floor. Commenters also stated that HUD 
should make it clear that smoking is not a bar to receiving assistance 
and should allow tenants who cannot comply to receive vouchers to move 
out of public housing.
    However, commenters also expressed concern about the reasonable 
accommodation process. Commenters shared concerns that relying on the 
reasonable accommodation process assumes all residents with 
disabilities know their rights, assumes at least some requests will be 
granted, and places all the burden on the residents with disabilities 
themselves. Others stated that a PHA may be unable to move residents, 
due to costs of moving or a low vacancy rate. Commenters suggested that 
HUD require that language advising residents of their right to request 
a reasonable accommodation be included in leases along with other 
smoke-free requirements.
    HUD Response: Under section 504 of the Rehabilitation Act of 1973, 
Title II of the Americans with Disabilities Act, and the Fair Housing 
Act, PHAs are prohibited from discriminating on the basis of disability 
and must make reasonable accommodations in their rules, policies, 
practices, and services. A reasonable accommodation is a change, 
adaptation or modification to a policy, rule, program, service, 
practice, or workplace which will allow a qualified person with a 
disability to participate fully in a program, take advantage of a 
service, or perform a job. In order to show that a requested 
accommodation may be necessary, there must be an identifiable 
relationship, or nexus, between the requested accommodation and the 
individual's disability. This individualized determination must be made 
on a case-by-case basis by the PHA. When a person with a disability 
requests an accommodation related to his or her disability, a recipient 
must make the accommodation unless the recipient can demonstrate that 
doing so would result in a fundamental alteration in the nature of its 
program or an undue financial and administrative burden.
    Often, a PHA's Admissions and Continued Occupancy Plan (ACOP) will 
include guidelines for submission consideration, but an individual with 
a disability is not required to use a specific format when requesting 
an accommodation. General guidance on the reasonable accommodation 
process can be found at http://go.usa.gov/cJBBC. HUD also issued 
reasonable accommodation guidance entitled, ``Joint Statement of the 
Department of Housing and Urban Development and the Department of 
Justice on Reasonable Accommodations under the Fair Housing Act,'' 
which can be found at http://www.hud.gov/offices/fheo/disabilities/_modifications_mar08.pdf. HUD has determined that additional, specific 
guidance on accommodations related to smoke-free public housing is 
unnecessary, given the case-by-case nature of these decisions.
    Research shows that SHS will intrude into other units even when 
there is mechanical ventilation or air cleaners are installed. HUD 
acknowledges that some persons, including persons with disabilities, 
may have additional challenges in quitting, but reiterates that this 
rule does not require persons who smoke to stop smoking; rather, they 
must perform the activity in allowable areas outside of the public 
housing facilities and other restricted areas.
    HUD's guidance, ``Change is in the Air,'' available at http://portal.hud.gov/hudportal//huddoc?id=smokefreeactionguide.pdf, provides 
examples of how PHAs have approached and managed smoke-free policies 
for residents with disabilities. Not all of these examples involve 
reasonable accommodations, but they demonstrate a range of options that 
PHAs can use to implement smoke-free policies. For instance, PHAs have 
allowed residents to move to the first floor or closer to an exit door, 
and provided designated smoking areas with an accessible walkway, 
cover, lighting, and seating.
    HUD continues to encourage PHAs to engage residents early in the 
development of the policy so that there is adequate time to consider 
reasonable accommodations requests they receive. Language advising 
residents of their right to request a reasonable accommodation should 
already be contained within the PHA's ACOP. Under this rule, HUD is not 
requiring that reasonable accommodation language be contained in the 
lease. Public housing residents who suspect they are victims of housing 
discrimination can call (800) 669-9777.
    The act of smoking itself is not a disability under the ADA. HUD 
encourages all PHAs to fully engage with their residents so they fully 
understand the policy. Smokers with behavioral health conditions may 
require individualized attention to ensure they understand the policy 
and available cessation resources, as well as reasonable accommodation 
request procedures.

Scientific Basis for the Rule

    Some commenters were skeptical that there was adequate scientific 
justification for the rule and questioned whether SHS is dangerous. 
Commenters stated that the rule is merely part of a crusade against 
smokers.
    Other commenters stated that the ban on indoor smoking would be 
unnecessary if better construction, insulating electrical outlets or 
improving ventilation, were used in public housing.
    HUD Response: HUD relies on the conclusions of Federal agencies and 
other authoritative organizations regarding the health effects of 
exposure to SHS. Based on these conclusions, the scientific evidence 
for the adverse health effects of SHS exposure is compelling. In a 2006 
report, the Surgeon General concluded that there is no risk-free level 
of exposure to SHS. In children, the U.S. Surgeon General concluded 
that SHS exposure can cause sudden infant death syndrome, and can also 
cause acute respiratory infections, middle ear infections and more 
severe asthma in children. In adults, the Surgeon General has concluded 
that SHS exposure causes heart disease, lung cancer, and stroke. In 
addition, SHS is designated as a known human carcinogen by the U.S. 
Environmental Protection Agency, the U.S. National Toxicology Program, 
and the

[[Page 87442]]

International Agency for Research on Cancer.
    The Surgeon General also concluded in 2006 that ``eliminating 
indoor smoking fully protects nonsmokers from exposure to SHS. 
Separating smokers from nonsmokers, cleaning the air, and ventilating 
buildings cannot eliminate exposure to secondhand smoke.'' HUD 
acknowledges that the movement of SHS from a smoker's unit to other 
parts of a building can be partially reduced through improvements in 
ventilation systems and through the increased air sealing of units; 
however, these strategies cannot fully eliminate exposure. Increased 
air sealing could also have the disadvantage of increasing SHS 
exposures to non-smokers in the sealed units, and could increase the 
amount of SHS that settles on surfaces within the sealed units.

Signs

    Commenters asked that HUD include requirements on no-smoking signs 
in the final rule. Commenters stated that HUD should require a minimum 
amount of signage, and others stated that any signs should be in all 
languages applicable to a given PHA.
    HUD Response: HUD strongly encourages PHAs to post signs 
referencing their smoke-free policy. These signs must be accessible to 
all residents, and must be posted in multiple languages if appropriate 
for residents of the PHA, in accordance with HUD's guidance on limited 
English proficiency.

Scope of the Rule

    Commenters stated that the proposed rule does not go far enough in 
only banning tobacco smoking. They asked that HUD include other items 
in the ban, including all products creating smoke, such as non-tobacco 
cigarettes and scented candles and incense, or other things posing 
health risks such as fatty foods or alcohol.
    HUD Response: This rule bars the use of prohibited tobacco products 
indoors, and outdoors within 25 feet of any building. Prohibited 
tobacco products include waterpipes. HUD is focusing first on public 
housing because HUD already has significant progress to build upon, as 
many PHAs have voluntarily implemented smoke-free policies. HUD intends 
next to turn attention to other HUD-assisted housing. Although this 
rule curtails a behavior that public housing regulations previously 
allowed, instituting smoke-free public housing would ensure that public 
housing residents enjoy the confirmed and significant health benefits 
that many higher-income market-rate residents now enjoy and 
increasingly demand of the private housing market. As a practical 
matter, HUD also is focusing first on smoke-free public housing 
because, in public housing, HUD can more readily leverage the Federal 
government's direct financial investments and existing regulatory 
framework to promote broad-based, successful policy implementation than 
where housing depends on private owners and contracts. However, HUD 
will issue a solicitation of comments in the Federal Register to obtain 
feedback from owners and tenants on the prospect of requiring smoke-
free policies in other HUD-assisted properties.

Training

    Commenters asked that HUD provide specific support for training in 
the final rule, both for residents and for PHA staff on both the 
reasons for the rule and proper enforcement of no-smoking policies.
    HUD Response: HUD agrees that PHAs and residents will need training 
on the reasons for the rule and proper enforcement of smoke-free 
policies. HUD is coordinating with other federal agencies and non-
governmental organizations on providing assistance to PHAs, as 
appropriate, in implementing smoke-free policies. HUD will provide 
training to PHAs in the form of video- and print-based materials, as 
well as in-person training for select PHAs. Training resources will be 
focused on geographic areas with the greatest need, including areas 
where few PHAs previously implemented smoke-free policies. Resident 
training should be provided by PHA staff.

Waterpipes (Hookahs)

    Many commenters asked that HUD include waterpipes in the smoke-free 
policy. These commenters stated that they are still a fire hazard and 
the smoke gives off harmful elements like cigarette smoke. Some 
commenters stated that waterpipes pose a carbon monoxide hazard in 
addition to the other toxins. Commenters stated that hookah sessions 
frequently last longer than the time it takes to smoke a cigarette and 
that some experts believe the SHS from waterpipes may be more hazardous 
than that from cigarettes.
    Commenters asked that if HUD does not include waterpipes in the 
smoke-free policy standard, the final rule should be explicit that PHAs 
may do so themselves.
    Other commenters stated that HUD should not include waterpipes in 
the final rule, and noted that for some cultural groups, there is a 
cultural significance to smoking around a waterpipe that HUD should 
keep in mind.
    HUD Response: Waterpipes (hookahs) are smoking devices that use 
coal or charcoal to heat tobacco, and then draw the smoke through water 
and a hose to the user. HUD recognizes that the use of hookahs is 
fundamentally different from the use of cigarettes, cigars, or other 
handheld tobacco products. Hookahs are not held while in use, and 
therefore require a person to remain in one spot while using them. In 
addition, the lit coals, which can last for half an hour or longer, 
cannot be extinguished and therefore must be used or discarded, leading 
the users to spend longer time periods outdoors than users of other 
tobacco products. For many residents, there may not be a permissible 
way to use a hookah outside their homes. But for PHAs that establish 
DSAs, it may still be feasible for outdoor hookah smoking in those 
locations, especially if the DSA is covered, preventing precipitation 
from interfering with the lighting of the coals.
    Both the heating source and burning of tobacco are sources of 
contaminant emissions. HUD agrees with commenters that there is 
considerable evidence that the use of waterpipes results in the 
emission of contaminants that are similar to those identified in SHS 
from other tobacco products, including carbon monoxide, respirable 
particulate matter (PM2.5), nicotine and benzene. There is 
no evidence that the drawing of tobacco smoke through water in hookahs 
makes the smoke less hazardous. Furthermore, because hookah sessions 
generally extend for longer periods than required to smoke a cigarette 
or other tobacco products, they can result in higher concentrations of 
contaminants. Finally, the presence of lit charcoal poses a fire risk 
to the property. Several examples of hookahs causing serious fire 
damage have been seen in homes around the country.\14\ In addition, the 
World Health Organization \15\ and the American Lung

[[Page 87443]]

Association \16\ recommend that hookahs should be subjected to the same 
regulations as cigarettes. Therefore, HUD has amended the final rule to 
state that waterpipes fall under the definition of a ``prohibited 
tobacco product.''
---------------------------------------------------------------------------

    \14\ See, e.g., Raya Zimmerman, 5 Dogs Die in St. Paul House 
Fire Likely Started by Teen's Hookah, Pioneer Press, May 11, 2014, 
http://www.twincities.com/localnews/ci_25741957/5-dogs-die-st-paul-home-fire-woman; Jason Pohl, Mishandled hookah sparked May apartment 
fire, Coloradoan, July 26, 2015, http://www.coloradoan.com/story/news/2015/07/25/pfa-mishandled-hookah-sparked-may-apartment-fire/30670277/; and Erin Wencel, Hookah Starts Fire in North Fargo 
Basement, KVRR News, Nov. 26, 2015, http://www.kvrr.com/news/local-news/hookah-starts-fire-in-north-fargo-basement-no-injuries-in-wahpeton-housefire/36677270.
    \15\ World Health Organization, ``Waterpipe Tobacco Smoking: 
Health Effects, Research Needs and Recommended Actions by 
Regulators,'' (2005), available at http://www.who.int/tobacco/global_interaction/tobreg/Waterpipe%20recommendation_Final.pdf.
    \16\ American Lung Association, ``An Emerging Deadly Trend: 
Waterpipe Tobacco Use,'' (Feb. 2007), available at http://www.lungusa2.org/embargo/slati/Trendalert_Waterpipes.pdf.
---------------------------------------------------------------------------

    While the use of hookahs may be viewed as a significant cultural 
practice, this does not qualify a resident for exclusion from the 
policy. As previously noted, there is no fundamental right to smoke and 
the act of smoking is entitled to only a minimal level of protection 
under the Equal Protection Clause. Therefore, smoking a hookah, as a 
significant cultural practice, does not itself provide a reason for 
exclusion from the policy.

Other Comments

    Commenters stated that no matter what, smoking should not be a bar 
to public housing tenancy, despite some statements by PHA directors 
that state they already discriminate against smokers.
    Commenters also wrote that HUD should state in the rule that the 
rule does not guarantee a smoke-free environment in order to avoid 
lawsuits from tenants with non-compliant neighbors.
    HUD Response: This rule is not to be interpreted as making smoking 
a bar to public housing tenancy. Prospective and current residents are 
free to smoke outdoors with the understanding that smoking is 
prohibited within a 25-foot perimeter of buildings and in accordance 
with the PHA's smoke-free policy. This rule does not guarantee a smoke-
free environment; residents may still be exposed to SHS on public 
housing grounds, particularly outside the 25-foot smoke-free perimeter. 
HUD emphasizes that the smoke-free policy is intended to reduce 
financial costs for PHAs as well as improve indoor air quality for all 
residents.

Responses to Questions

    As part of the proposed rule, HUD asked the public to share 
specific information, particularly from PHAs who have already 
implemented smoke-free policies and can share their experiences. HUD 
received a number of comments with past experiences and suggestions for 
best practices, and we appreciate all the input. The information 
commenters submitted has helped inform HUD as to changes in the final 
rule and in developing further guidance for PHAs on implementing and 
enforcing this final rule.

V. Findings and Certifications

Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) reviewed this proposed 
rule under Executive Order 12866 (entitled ``Regulatory Planning and 
Review''). OMB determined that this rule was economically significant 
under the order. The docket file is available for public inspection in 
the Regulations Division, Office of General Counsel, U.S. Department of 
Housing and Urban Development, 451 7th Street SW., Room 10276, 
Washington, DC 20410-0500. The Regulatory Impact Analysis (RIA) 
prepared for this rule is also available for public inspection in the 
Regulations Division and may be viewed online at www.regulations.gov, 
under the docket number above. Due to security measures at the HUD 
Headquarters building, an advance appointment to review the public 
comments must be scheduled by calling the Regulations Division at (202) 
708-3055 (this is not a toll-free number). Individuals with speech or 
hearing impairments may access this number via TTY by calling the 
Federal Relay Service at (800) 877-8339.

Information Collection Requirements

    The information collection requirements contained in this proposed 
rule have been submitted to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and 
assigned OMB control number 2577-0226. In accordance with the Paperwork 
Reduction Act, an agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information, unless the 
collection displays a currently valid OMB control number.

Impact on Small Entities

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
This rule prohibits smoking of tobacco in all indoor areas of and 
within 25 feet of any public housing and administrative office 
buildings for all PHAs, regardless of size.
    There are 2334 ``small'' PHAs (defined as PHAs with fewer than 250 
units), which make up 75 percent of the public housing stock across the 
country. Of this number, approximately 378 have already instituted a 
voluntary full or partial policy on indoor tobacco smoking.
    HUD anticipates that implementation of the policy will impose 
minimal additional costs, as creation of the smoke-free policy only 
requires amendment of leases and the PHA plan, both of which may be 
done as part of a PHA's normal course of business. Additionally, 
enforcement of the policy will add minimal incremental costs, as PHAs 
must already regularly inspect public housing units and enforce lease 
provisions. Any costs of this rule are mitigated by the fact that PHAs 
have up to 18 months to implement the policy, allowing for costs to be 
spread across that time period.
    While there are significant benefits to the smoke-free policy 
requirement, the majority of those benefits accrue to the public 
housing residents themselves, not to the PHAs. PHAs will realize 
monetary benefits due to reduced unit turnover costs and reduced fire 
and fire prevention costs, but these benefits are variable according to 
the populations of each PHA and the PHA's existing practices.
    Finally, this rule does not impose a disproportionate burden on 
small PHAs. The rule does not require a fixed expenditure; rather, all 
costs should be proportionate to the size of the PHA implementing and 
enforcing the smoke-free policy.
    Therefore, the undersigned certifies that this rule will not have a 
significant impact on a substantial number of small entities.

Environmental Review

    A Finding of No Significant Impact (FONSI) with respect to the 
environment has been made in accordance with HUD regulations in 24 CFR 
part 50 that implement section 102(2)(C) of the National Environmental 
Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The FONSI is available for 
public inspection during regular business hours in the Regulations 
Division, Office of General Counsel, Department of Housing and Urban 
Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. 
Due to security measures at the HUD Headquarters building, please 
schedule an appointment to review the FONSI by calling the Regulations 
Division at 202-708-3055 (this is not a toll-free number). Individuals 
with speech or hearing impairments may access this number via TTY by 
calling the Federal Relay Service at 800-877-8339. The

[[Page 87444]]

FONSI is also available to view online at www.regulations.gov.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
either imposes substantial direct compliance costs on state and local 
governments or is not required by statute, or the rule preempts state 
law, unless the agency meets the consultation and funding requirements 
of section 6 of the Executive Order. This final rule does not have 
federalism implications and does not impose substantial direct 
compliance costs on state and local governments nor preempt state law 
within the meaning of the Executive Order.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number for the Public 
Housing program is 14.872.

List of Subjects

24 CFR Part 965

    Government procurement, Grant programs-housing and community 
development, Lead poisoning, Loan programs-housing and community 
development, Public housing, Reporting and recordkeeping requirements, 
Utilities.

24 CFR Part 966

    Grant programs-housing and community development, Public housing, 
Reporting and recordkeeping requirements.

    Accordingly, for the reasons stated in the preamble, HUD amends 24 
CFR parts 965 and 966 as follows:

PART 965--PHA-OWNED OR LEASED PROJECTS--GENERAL PROVISIONS

0
1. The authority citation for 24 CFR part 965 continues to read as 
follows:

    Authority: 42 U.S.C. 1547, 1437a, 1437d, 1437g, and 3535(d). 
Subpart H is also issued under 42 U.S.C. 4821-4846.

0
2. Add subpart G to read as follows:
Subpart G--Smoke-Free Public Housing
Sec.
965.651 Applicability.
965.653 Smoke-free public housing.
965.655 Implementation.

Subpart G--Smoke-Free Public Housing


Sec.  965.651  Applicability.

    This subpart applies to public housing units, except for dwelling 
units in a mixed-finance project. Public housing is defined as low-
income housing, and all necessary appurtenances (e.g., community 
facilities, public housing offices, day care centers, and laundry 
rooms) thereto, assisted under the U.S. Housing Act of 1937 (the 1937 
Act), other than assistance under section 8 of the 1937 Act.


Sec.  965.653  Smoke-free public housing.

    (a) In general. PHAs must design and implement a policy prohibiting 
the use of prohibited tobacco products in all public housing living 
units and interior areas (including but not limited to hallways, rental 
and administrative offices, community centers, day care centers, 
laundry centers, and similar structures), as well as in outdoor areas 
within 25 feet from public housing and administrative office buildings 
(collectively, ``restricted areas'') in which public housing is 
located.
    (b) Designated smoking areas. PHAs may limit smoking to designated 
smoking areas on the grounds of the public housing or administrative 
office buildings in order to accommodate residents who smoke. These 
areas must be outside of any restricted areas, as defined in paragraph 
(a) of this section, and may include partially enclosed structures. 
Alternatively, PHAs may choose to create additional smoke-free areas 
outside the restricted areas or to make their entire grounds smoke-
free.
    (c) Prohibited tobacco products. A PHA's smoke-free policy must, at 
a minimum, ban the use of all prohibited tobacco products. Prohibited 
tobacco products are defined as:
    (1) Items that involve the ignition and burning of tobacco leaves, 
such as (but not limited to) cigarettes, cigars, and pipes.
    (2) To the extent not covered by paragraph (c)(1) of this section, 
waterpipes (hookahs).


Sec.  965.655  Implementation.

    (a) Amendments. PHAs are required to implement the requirements of 
this subpart by amending each of the following:
    (1) All applicable PHA plans, according to the provisions in 24 CFR 
part 903.
    (2) Tenant leases, according to the provisions of 24 CFR 966.4.
    (b) Deadline. All PHAs must be in full compliance, with effective 
policy amendments, by July 30, 2018.

PART 966--PUBLIC HOUSING LEASE AND GRIEVANCE PROCEDURE

0
3. The authority section for 24 CFR part 966 continues to read as 
follows:

    Authority: 42 U.S.C. 1437d and 3535(d).


0
4. In Sec.  966.4, revise paragraphs (f)(12)(i) and (ii) to read as 
follows:


Sec.  966.4  Lease requirements.

* * * * *
    (f) * * *
    (12) * * *
    (i) To assure that no tenant, member of the tenant's household, or 
guest engages in:
    (A) Criminal activity. (1) Any criminal activity that threatens the 
health, safety or right to peaceful enjoyment of the premises by other 
residents;
    (2) Any drug-related criminal activity on or off the premises; or
    (B) Civil activity. For any units covered by 24 CFR part 965, 
subpart G, any smoking of prohibited tobacco products in restricted 
areas, as defined by 24 CFR 965.653(a), or in other outdoor areas that 
the PHA has designated as smoke-free.
    (ii) To assure that no other person under the tenant's control 
engages in:
    (A) Criminal activity. (1) Any criminal activity that threatens the 
health, safety or right to peaceful enjoyment of the premises by other 
residents;
    (2) Any drug-related criminal activity on the premises; or
    (B) Civil activity. For any units covered by 24 CFR part 965, 
subpart G, any smoking of prohibited tobacco products in restricted 
areas, as defined by 24 CFR 965.653(a), or in other outdoor areas that 
the PHA has designated as smoke-free.
* * * * *

    Dated: November 28, 2016.
Juli[aacute]n Castro,
Secretary.
[FR Doc. 2016-28986 Filed 12-2-16; 8:45 am]
BILLING CODE 4210-67-P