[Federal Register Volume 81, Number 233 (Monday, December 5, 2016)]
[Rules and Regulations]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28986]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 965 and 966
[Docket No. FR 5597-F-03]
Instituting Smoke-Free Public Housing
AGENCY: Office of the Assistant Secretary for Public and Indian
ACTION: Final rule.
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
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
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).
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
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:
Source of impact Type of impact -----------------------------------------------
Low Standard High
PHA Compliance/Enforcement \1\........ Recurring Cost (highest 6 7.7 30
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
information on how to view the RIA is included below.
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
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-
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
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
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
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
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
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
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
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
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\
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.
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
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
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
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.
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
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,
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
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.
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
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.
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.
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
Commenters stated that HUD could partner with other agencies for
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
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
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
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
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
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
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).
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
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.
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
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
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
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.
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.
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'
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
\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
\12\ See Fagan v. Axelrod, 550 N.Y.S.2d 552, 560 (N.Y. Sup. Ct.
\13\ See Chance v. Spears, 2009 U.S. Dist. LEXIS 110304.
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).
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.
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
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
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
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,
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.
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
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.
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.
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
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
\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.
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
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.
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
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,
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
1. The authority citation for 24 CFR part 965 continues to read as
Authority: 42 U.S.C. 1547, 1437a, 1437d, 1437g, and 3535(d).
Subpart H is also issued under 42 U.S.C. 4821-4846.
2. Add subpart G to read as follows:
Subpart G--Smoke-Free Public Housing
965.653 Smoke-free public housing.
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
(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-
(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,
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
(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
3. The authority section for 24 CFR part 966 continues to read as
Authority: 42 U.S.C. 1437d and 3535(d).
4. In Sec. 966.4, revise paragraphs (f)(12)(i) and (ii) to read as
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
(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
(A) Criminal activity. (1) Any criminal activity that threatens the
health, safety or right to peaceful enjoyment of the premises by other
(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.
[FR Doc. 2016-28986 Filed 12-2-16; 8:45 am]
BILLING CODE 4210-67-P