Instituting Smoke-Free Public Housing, 71762-71769 [2015-29346]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 80, Number 221 (Tuesday, November 17, 2015)]
[Proposed Rules]
[Pages 71762-71769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29346]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 965 and 966

[Docket No. FR 5597-P-02]
RIN 2577-AC97


Instituting Smoke-Free Public Housing

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

ACTION: Proposed rule.

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SUMMARY: This proposed rule would require each public housing agency 
(PHA) administering public housing to implement a smoke-free policy. 
Specifically, this rule proposes that no later than 18 months from the 
effective date of the final rule, each PHA must implement a policy 
prohibiting lit tobacco products in all living units, indoor common 
areas in public housing, and in PHA administrative office buildings (in 
brief, a smoke-free policy for all public housing indoor areas). The 
smoke-free policy must also extend to all outdoor areas up to 25 feet 
from the housing and administrative office buildings. HUD proposes 
implementation of smoke-free public housing to improve indoor air 
quality in the housing, benefit the health of public housing residents 
and PHA staff, reduce the risk of catastrophic fires, and lower overall 
maintenance costs.

DATES: Comment Due Date: January 19, 2016.

ADDRESSES: Interested persons are invited to submit comments regarding 
this proposed rule. All communications must refer to the above docket 
number and title. There are two methods for submitting public comments.
    1. Submission of Comments by Mail. Comments may be submitted by 
mail to the Regulations Division, Office of General Counsel, Department 
of Housing and Urban Development, 451 7th Street SW., Room 10276, 
Washington, DC 20410-0500.
    2. Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
www.regulations.gov. HUD strongly encourages commenters to submit 
comments electronically. Electronic submission of comments allows the 
commenter maximum time to prepare and submit a comment, ensures timely 
receipt by HUD, and enables HUD to make comments immediately available 
to the public. Comments submitted electronically through the 
www.regulations.gov Web site can be viewed by other commenters and 
interested members of the public. Commenters should follow the 
instructions provided on that site to submit comments electronically.
    Note: To receive consideration as public comments, comments must be 
submitted through one of the two methods specified above. Again, all 
submissions must refer to the docket number and title of the rule.
    No Facsimile Comments. Facsimile (fax) comments are not acceptable.
    Public Inspection of Public Comments. All properly submitted 
comments and communications submitted to HUD will be available for 
public inspection and copying between 8 a.m. and 5 p.m., weekdays, at 
the above address. 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 toll-free Federal Relay 
Service at 800-877-8339. Copies of all comments submitted are available 
for inspection and downloading at www.regulations.gov.

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 toll-free Federal Relay Service at 800-877-
8339.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of the Proposed Rule

    The purpose of the proposed rule is to require PHAs to, within 18 
months of the final rule, establish a policy prohibiting lit tobacco 
products, as such term is proposed to be 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 and PHA staff, 
reduce the risk of catastrophic fires, and lower overall maintenance 
costs.

B. Summary of Major Provisions of the Proposed Rule

    This proposed rule would apply to all public housing, other than 
dwelling units in mixed-finance buildings. PHAs would be required, 
within 18 months of the effective date of the final rule, to establish 
policies prohibiting lit tobacco products in all restricted areas. PHAs 
may, but would not be required to, further restrict smoking to outdoor 
dedicated smoking areas outside the restricted areas, create additional 
restricted areas in which smoking is

[[Page 71763]]

prohibited (e.g., near a playground), or, alternatively, make their 
entire grounds smoke-free.
    PHAs would also be required to document their smoke-free policies 
in their PHA plans, a process that requires resident engagement and 
public meetings. The prohibition on lit tobacco would 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 Proposed Rule

    The costs to PHAs of implementing smoke-free policies may include 
training, administrative, legal, and enforcement costs. Of these costs, 
HUD expects that the expense of additional enforcement efforts may be 
the highest. The costs of implementing a smoke-free policy as proposed 
by this rule are minimized by the fact that HUD guidance already exists 
on many of the topics covered by the smoke-free policy proposed to be 
required by this rule; that hundreds of PHAs have already voluntarily 
implemented smoke-free policies; and that infrastructure already exists 
for enforcement of lease violations, and violation of the smoke-free 
policy would be 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 smoking in secondhand smoke infiltration 
within living units. Given the existing HUD guidance, initial learning 
costs 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 for these 
PHAs, and, generally, only if their existing policies are not 
consistent with the minimum requirements for smoke-free policies 
proposed by this rule.
    The benefits of smoke free policies, however, could 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 secondhand smoke. 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 caused by fires. Estimates of these and 
other rule-induced impacts are summarized in the following table:

------------------------------------------------------------------------
                                                      Amount (discount
           Impact                    Source               rates in
                                                        parentheses)
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Cost (potentially recurring   PHA Compliance......  $3.2 million.
 but concentrated during
 first few years of the
 rule's implementation).
Cost (recurring)............  Smoker Inconvenience  $209 million.
Cost (recurring)............  Enforcement.........  Not quantified.
Benefit (recurring).........  PHA Reduced           $16 to $38 million.
                               Maintenance.
Benefit (recurring).........  PHA Reduced Fire      $32 million.
                               Risk.
Benefit (annualized over 10   Non-Smoker Health...  Less than:
 to 50 years).                                      $148 to $447 million
                                                     (3%)
                                                    $70 to $137 million
                                                     (7%).
Benefit (recurring).........  Non-Smoker Well-      $96 to $275 million.
                               Being (PHA
                               residents who do
                               not live in units
                               with smokers).
Benefit (recurring).........  Smoker Health.......  Not quantified.
Partially Quantified Net      See above...........  Less than: -$19 to
 Benefits (recurring).                               $302 million (3%) -
                                                     $97 to -$8 million
                                                     (7%)
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    For additional details on the costs and benefits of this rule, 
please see the Regulatory Impact Analysis (RIA) for this rule, which 
can be found at www.regulations.gov, under the docket number for this 
rule. Information on how to view the RIA is included below.

II. Background

A. The Effects of Smoking on Health

    Tobacco smoking has been determined to be a cause of diseases of 
nearly all organs in the body, and research continues to newly identify 
diseases caused by smoking, including diabetes mellitus, rheumatoid 
arthritis, and colorectal cancer. In addition to causing multiple 
diseases and cancers, tobacco smoking has many other adverse effects on 
the body, including inflammation and impairment to the immune 
system.\1\
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    \1\ Office of the Surgeon General, ``The Health Consequences of 
Smoking--50 Years of Progress,'' (2014), available at https://www.surgeongeneral.gov/library/reports/50-years-of-progress/full-report.pdf.
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    Adverse effects of tobacco use are not limited to the smoker. The 
U.S. Surgeon General estimates that exposure to secondhand tobacco 
smoke (i.e., the smoke that comes from burning tobacco products and is 
exhaled by smokers) is responsible for the death of 41,000 adults non-
smokers in the United States each year from lung cancer and heart 
disease.\2\ Secondhand smoke (SHS) contains hundreds of toxic chemicals 
and is designated as a known human carcinogen by the U.S. Environmental 
Protection Agency, the U.S. National Toxicology Program, and the 
International Agency for Research on Cancer.\3\ Exposure to SHS can 
also cause sudden infant death syndrome and respiratory symptoms such 
as cough and wheeze, middle ear infections, and slowed lung growth and 
reduced lung function in children, and increased risk of stroke in 
adults.\4\ The Surgeon General has concluded that there is no risk-free 
level of exposure to SHS, and that eliminating smoking in indoor spaces 
fully protects nonsmokers from exposure to secondhand smoke. Separating 
smokers from nonsmokers, cleaning the air, and ventilating buildings 
cannot eliminate exposures of nonsmokers to secondhand smoke.\5\
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    \2\ Id.
    \3\ American Cancer Society, ``Secondhand Smoke,'' https://www.cancer.org/cancer/cancercauses/tobaccocancer/secondhand-smoke.
    \4\ 2014 Surgeon General's Report, footnote 1.
    \5\ U.S. Dept. of Health and Human Services, ``The Health 
Consequences of Involuntary Exposure to Tobacco Smoke: A Report of 
the Surgeon General,'' (2006), available at https://www.surgeongeneral.gov/library/reports/secondhandsmoke/fullreport.pdf.
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    The effects of SHS are especially damaging in children and unborn 
fetuses. The Surgeon General estimates that SHS is responsible for the 
death of hundreds of newborns from Sudden Infant Death Syndrome (SIDS) 
each year.\6\ Lead in SHS is also a significant source of lead in house 
dust and children's blood. The CDC confirmed the association between 
SHS exposure

[[Page 71764]]

and blood-lead levels in youth and adults, concluding that youth with 
SHS exposure had blood lead levels high enough to result in adverse 
cognitive outcomes.\7\
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    \6\ Id.
    \7\ Patricia Richter et al., ``Trends in Tobacco Smoke Exposure 
and Blood Lead Levels Among Youth and Adults in the United States: 
The National Health and Nutrition Examination Survey, 1999-2008,'' 
Preventing Chronic Disease, (December 19, 2013), available at https://www.cdc.gov/pcd/issues/2013/pdf/13_0056.pdf.
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    Approximately half of the U.S. population is protected from SHS 
exposure through statewide, municipal, and federal laws prohibiting 
smoking in indoor areas of public places and worksites, including bars 
and restaurants. However, an estimated 58 million Americans remain 
exposed to secondhand smoke, including 15 million children ages 3 to 
11. The home is the primary source of exposure for children.\8\ Because 
SHS moves throughout buildings, individuals living in multiunit housing 
can be exposed to SHS even if no one smokes in their households. 
Surveys of multiunit housing residents indicate that 26 to 64 percent 
of residents reported SHS incursions into their units from external 
sources (e.g., hallways or adjacent apartments), and 65 to 90 percent 
of the residents experiencing such incursions were bothered by them.\9\
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    \8\ 2006 Surgeon General's Report, footnote 5; David M. Homa et 
al., ``Vital Signs: Disparities in Nonsmokers' Exposure to 
Secondhand Smoke--United States, 1999-2012,'' Morbidity and 
Mortality Weekly Report (February 6, 2015), available at https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6404a7.htm?s_cid=mm6404a7_w.
    \9\ Kimberly Snyder et al., ``Smoke-free Multiunit Housing: A 
Review of the Scientific Literature,'' Tobacco Control (2015), 
available at https://tobaccocontrol.bmj.com/content/early/2015/01/07/tobaccocontrol-2014-051849.short?rss=1.
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    The movement of contaminants from SHS within buildings has also 
been documented through direct measurements of fine particles (an 
environmental marker of SHS) in indoor air. SHS can move both from 
external hallways into apartments and between adjacent units.\10\ A 
study of public housing documented lower concentrations of SHS 
contaminants in buildings covered by smoke-free policies (i.e., 
policies prohibiting the smoking of tobacco products in all indoor 
spaces) compared to buildings without these policies.\11\ Analysis of 
data from the National Health and Nutrition Examination Survey (NHANES) 
demonstrated evidence of greater SHS exposure among children (aged 6 to 
18) living in multiunit housing through measurements of cotinine (a 
metabolite of nicotine) in their blood.\12\ The study demonstrated that 
children living in non-smoking households in apartments had 45 percent 
higher levels of cotinine in their blood compared to children living in 
non-smoking households in detached homes. CDC researchers analyzed 
NHANES data over the period from 1999-2012 and reported that one of 
four nonsmokers (approximately 58 million people) continue to be 
exposed to SHS, with the highest exposures among children, non-Hispanic 
blacks, renters, and those living in poverty.\13\
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    \10\ Brian A. King et al., ``Secondhand Smoke Transfer in 
Multiunit Housing,'' 12 Nicotine and Tobacco Research 1133 (2010), 
available at https://ntr.oxfordjournals.org/content/12/11/1133.
    \11\ Elizabeth T. Russo, et al., ``Comparison of Indoor Air 
Quality in Smoke-Permitted and Smoke-Free Multiunit Housing: 
Findings from the Boston Housing Authority,'' 10 Nicotine and 
Tobacco Research 1093 (2014), available at https://ntr.oxfordjournals.org/content/early/2014/08/25/ntr.ntu146.abstract?utm_source=rss&utm_medium=rss&utm_campaign=comparison-of-indoor-air-quality-in-smoke-permitted-and-smoke-free-multiunit-housing-findings-from-the-boston-housing-authority.
    \12\ Karen M. Wilson et al., ``Tobacco-Smoke Exposure in 
Children Who Live in Multiunit Housing,'' 127 Pediatrics 85 (2011), 
available at https://pediatrics.aappublications.org/content/127/1/85.full.pdf+html.
    \13\ David M. Homa et al., ``Disparities in Nonsmokers Exposure 
to Secondhand Smoke in the United States, 1999-2012,'' Mortality and 
Morbidity Weekly Report, Early Release, 64 (February 3, 2015), 
available at https://www.cdc.gov/mmwr/pdf/wk/mm64e0203a1.pdf.
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    The Surgeon General concluded in 2006 that separating smokers and 
nonsmokers, building ventilation, and cleaning the air cannot eliminate 
exposure to SHS; that can only be accomplished by eliminating smoking 
from indoor spaces.\14\
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    \14\ U.S. Dept. of Health and Human Services. See footnote note 
2.
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B. The Financial Costs of Smoking

    Beyond the increased costs associated with higher healthcare 
expenses, tobacco smoking can have profound financial impacts on PHAs 
and owners of other multiunit properties. Smoking is the leading cause 
of fire deaths in multiunit properties.\15\ In 2011, smoking caused 
17,600 residential fires resulting in 490 civilian deaths, 1,370 
injuries, and $516 million in direct property damage.\16\ Smoking is 
especially dangerous in units where a household member is receiving 
oxygen for medical purposes. Research conducted by the U.S. Fire 
Protection Association found that for fire deaths during the period 
from 2007-2011 in which oxygen administration equipment was cited as 
being involved in the ignition, 82 percent involved smoking materials 
as the heat source.\17\
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    \15\ U.S. Fire Administration, Residential Structure and 
Building Fires, https://www.usfa.fema.gov/downloads/pdf/publications/residential_structure_and_building_fires.pdf.
    \16\ Marty Ahrens, Ntl. Fire Protection Assn., ``Home Structure 
Fires,'' (April 2013), available at https://www.nfpa.org/~/media/
Files/Research/NFPA%20reports/Occupancies/oshomes.pdf.
    \17\ John R. Hall, Jr., Ntl. Fire Protection Assn., ``The 
Smoking-Material Fire Problem,'' (July 2013), available at https://
www.nfpa.org/~/media/Files/Research/NFPA%20reports/Major%20Causes/
ossmoking.pdf.
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    Smoking is also associated with higher maintenance costs for 
landlords of multiunit housing. Smoking indoors increases the cost of 
rehabilitating a housing unit because of the need for additional 
cleaning, painting, and repair of damaged items at unit turnover 
compared to non-smoking units. The cost of cleaning and renovating a 
smoking unit adds up quickly, and smaller properties generally pay more 
per unit than larger properties when repairing smoking damage. A survey 
of public and subsidized housing managers found that the additional 
cost of rehabilitating the units of smokers averaged $1,250 to $2,955 
per unit, depending on the intensity of smoking.\18\ A study conducted 
in California found that the owners of multiunit housing could save 
over $18 million per year if the operators of all multiunit housing in 
the state adopted smoke-free building policies.\19\ Researchers from 
the CDC estimated that a nationwide smoke-free public housing policy 
would result in an estimated annual cost savings of $152.91 million, 
including $42.99 million in reduced renovation costs and $15.92 million 
in averted fire losses.\20\
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    \18\ Ntl. Ctr. For Healthy Hsg., ``Reasons to Explore Smoke-Free 
Housing,'' (Early Fall 2009), available at https://www.nchh.org/portals/0/contents/nchh_green_factsheet_smokefree.pdf.
    \19\ Michael K. Ong et al, ``Estimates of Smoking-Related 
Properties Costs in California Multiunit Housing,'' 102 Am J Public 
Health 490 (2012), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3487653/.
    \20\ Brian King et al., ``National and State Cost Savings 
Associated With Prohibiting Smoking in Subsidized and Public Housing 
in the United States,'' Preventing Chronic Disease (October 2014), 
available at https://www.cdc.gov/pcd/issues/2014/pdf/14_0222.pdf.
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    Self-imposed rules prohibiting smoking in individual households 
(referred to as smoke-free home rules) are becoming increasingly common 
in the United States. CDC researchers found that the prevalence of 
smoke-free home rules among U.S. households increased from 43 percent 
in 1992-1993 to 83 percent in 2010-2011, including an increase among 
households with at least one adult smoker, implying that the smokers in 
these households agree to smoke outside of the home.\21\ Two

[[Page 71765]]

national surveys discussed by the CDC researchers identified voluntary 
smoke-free home rules among residents of multiunit housing in over 70 
percent of those surveyed. Additionally, CDC researchers, reviewing 
published studies, found that the majority of residents in multiunit 
housing expressed support for a complete smoke-free building policy in 
six of eight reviewed studies.\22\ The findings from these national and 
local surveys suggest that a smoke-free rule will be supported by a 
majority of public housing residents and will help those residents who 
already have a smoke-free home rule in place achieve the desired goal 
of eliminating the presence of SHS in their homes.
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    \21\ Brian A. King et al., ``Prevalence of Smokefree Home 
Rules--United States, 1992-1993 and 2010-2011,'' Morbidity and 
Mortality Weekly Report (Sept. 5, 2014), available at https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6335a1.htm.
    \22\ Kimberly Snyder et al., supra note 9.
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C. Moving to Smoke-Free Public Housing Units

    HUD determined that the advantages of smoke-free housing policies 
were sufficient to warrant action by HUD to promote the voluntary 
adoption of smoke-free policies by PHAs and the owners/operators of 
federally subsidized multifamily properties. In 2009, HUD's Office of 
Public and Indian Housing published a notice that strongly encouraged 
PHAs to adopt smoke-free policies in at least some of the properties 
that they managed (this notice was reissued in 2012).\23\ HUD's Office 
of Housing issued a similar program notice in 2010 that encouraged 
owners/operators of subsidized multifamily properties to adopt smoke-
free policies (also reissued in 2012).\24\ The notices describe the 
advantages of smoke-free policies, identify required and recommended 
actions in implementing smoke-free policies, and provide links to 
resources (e.g., smoking cessation assistance for residents). In June 
2012, HUD published more detailed information on smoke-free housing 
policies for residents and the providers of subsidized housing, 
referred to as ``smoke-free toolkits.'' \25\
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    \23\ PIH Notices 2009-21, ``Non-Smoking Policies in Public 
Housing'' and 2012-25, ``Smoke-Free Policies in Public Housing'', 
available at https://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/hudclips/notices/pih.
    \24\ Housing Notices 2010-21, ``Optional Smoke-Free Housing 
Policy Implementation'' and 2012-22, ``Further Encouragement for O/
As to Adopt Optional Smoke-Free Housing Policies,'' available at 
https://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/hudclips/notices/hsg.
    \25\ See: https://portal.hud.gov/hudportal/HUD?src=/smokefreetoolkits1.
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    In October 2012, HUD also published a Federal Register notice that 
solicited feedback on the HUD's smoke-free housing initiative, 
specifically seeking information on topics such as best practices and 
practical strategies from housing providers who have implemented smoke-
free policies, potential obstacles to policy implementation and how 
these could be overcome, suggestions for supporting housing providers 
and residents to facilitate policy implementation, and feedback from 
housing providers who have decided not to implement smoke-free 
policies.\26\ HUD received many comments in response to this 
solicitation, largely from public health organizations and State and 
local health departments, expressing support for the concept and citing 
the great health risks posed by smoking and SHS.\27\
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    \26\ 77 FR 60712, ``Request for Information on Adopting Smoke-
Free Policies in PHAs and Multifamily Housing'' (October 4, 2012).
    \27\ All public comments submitted on the October 4, 2012, 
notice can be found under docket 5597-N-01 in the 
www.regulations.gov portal at https://www.regulations.gov/#!docketDetail;D=HUD-2012-0103.
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    In 2014, HUD released additional guidance for PHAs and owners/
agents of subsidized multifamily properties on implementing smoke-free 
policies. This guidance incorporates some of the feedback that HUD 
received from the 2012 Federal Register notice and includes summaries 
of interviews with nine early implementers of smoke-free housing 
policies, including administrators of public housing, subsidized 
multifamily housing, and market rate housing.\28\ The guidance includes 
best practices around enforcement, especially graduated enforcement to 
assist residents with compliance and prevent evictions.
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    \28\ See: https://portal.hud.gov/hudportal/documents/huddoc?id=SFGuidanceManual.pdf.
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    As a result of these combined actions, over 500 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. HUD recognizes that additional action is necessary to truly 
eliminate the risk of SHS exposure to public housing residents, reduce 
the risk of catastrophic fires, lower overall maintenance costs, and 
implement uniform requirements to ensure that all public housing 
residents are equally protected.
    Therefore, HUD is proposing to require 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.
    While the smoke-free policy will also apply to scattered sites and 
single family properties, this requirement would not extend to public 
housing units that are part of a mixed-finance project because the PHA 
may not be the primary owner, and non-public housing units may be 
contained within the building. While smoking in single family units 
does not lead to smoke intrusion to adjacent units, the risk of fire 
and the increased unit turnover costs remain. Further, including all 
public housing units covered by this proposed rule means that all 
tenants will be treated equally and be subject to the same lease 
requirements. This prohibition on smoking would cover all types of lit 
tobacco products, including but not limited to cigarettes, cigars, and 
pipes. While the prohibition does not specifically cover waterpipe 
tobacco smoking (referred to as hookahs), such smoking involves lit 
charcoal and results in heating tobacco to temperatures high enough to 
produce secondhand smoke that contains harmful toxins.\29\ For this 
reason, HUD is seeking comment on whether to include a prohibition on 
waterpipe tobacco in the final rule.
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    \29\ See World Health Organization. Advisory note: waterpipe 
tobacco smoking: 2nd edition (2015), available at https://www.who.int/tobacco/publications/prod_regulation/waterpipesecondedition/en/.
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    The prohibition on the use of lit tobacco products in this proposal 
does not include electronic nicotine delivery systems (ENDS), including 
electronic cigarettes (``e-cigarettes''). The absence of a prohibition 
on the use of e-cigarettes in this rule should not be read as an 
endorsement of e-cigarettes as an acceptable health alternative to 
cigarettes. The aerosol from ENDS typically contains nicotine derived 
from tobacco plants, and may contain other hazardous and potentially 
hazardous constituents such as formaldehyde and lead.\30\ Accidental 
ingestion of nicotine liquid used in ENDS can cause acute nicotine 
toxicity in children, accounting

[[Page 71766]]

for an increasing proportion of exposure calls to poison control 
centers.\31\ ENDS may also present an additional enforcement challenge 
for PHAs that are implementing smoke-free policies because the user may 
appear to be smoking a conventional cigarette. In light of growing 
health concerns regarding exposure to the aerosol of these products 
among non-users, especially children and pregnant women, HUD is seeking 
additional comments on the issue of ENDS, and may prohibit the use of 
these products in public housing in the final rule. HUD encourages PHAs 
that already have smoke-free policies to consider whether ENDS should 
be included in their smoke-free policies.
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    \30\ See Offerman, F.J. The hazards of e-cigarettes. June, 2014. 
ASHRAE Journal. See also National Institute for Occupational Safety 
and Health, ``Promoting Health and Preventing Disease and Injury 
Through Workplace Tobacco Policies,'' Current Intelligence Bulletin 
67 (2015), available at https://www.cdc.gov/niosh/docs/2015-113/pdfs/fy15_cib-67_2015-113_v3.pdf.
    \31\ CDC. Notes from the field: Calls to Poison Centers for 
Exposures to Electronic Cigarettes--United States, September 2010-
February 2014. MMWR 2014;63:292-93.
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    In proposing this policy, it is important for HUD to clarify that 
HUD's proposal does not prohibit individual PHA residents from smoking. 
PHAs should continue leasing to persons who smoke. This rule is not 
intended to contradict HUD's goals to end homelessness and help all 
Americans secure quality housing. Rather, HUD is proposing a 
prohibition on 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 will have the discretion to establish outside designated smoking 
locations outside of the required 25 feet perimeter, which may include 
partially enclosed structures, to accommodate smoking residents, to 
establish additional smoke-free areas (such as around a playground), 
or, alternatively, to make their entire grounds smoke-free. In 
addition, section 504 of the Rehabilitation Act of 1973 and the 
Americans with Disabilities Act provides the participant the right to 
seek a reasonable accommodation, including requests from residents with 
mobility-impairment or mental disability. A request for a reasonable 
accommodation from an eligible participant must at least be considered, 
and granted in appropriate circumstances. To assist PHAs, HUD will work 
with its Office of Fair Housing and Equal Opportunity to develop 
guidance on accommodating persons with a disability related to smoke-
free policies. The guidance will be informed by comments on the 
proposed rule and issued in advance of the final rule.
    The benefits of this proposed regulatory action may be substantial, 
and beneficiaries include both PHAs and residents of public housing. 
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 residents would have the 
potential to experience health benefits from a reduction of exposure to 
secondhand smoke. There are also over 775,000 children in these units. 
PHAs will benefit from a reduction of damage and renovation costs 
caused by smoking. Both residents and PHAs will gain from reducing 
deaths, injuries, and property damage caused by fires. The costs to 
PHAs of implementing the smoke-free policy proposed by this rule may 
include training, administrative, legal, and enforcement costs. Of 
these costs to PHAs, HUD expects that the expense of additional 
enforcement efforts may be the highest. The costs of implementing the 
smoke-free policy proposed by this rule are minimized by the fact that 
HUD guidance already exists on many of the topics covered by the 
proposed regulatory changes, and that over 500 PHAs have already 
implemented smoke-free policies. Given the existence of this HUD 
guidance, initial learning costs associated with implementation of a 
smoke-free policy as proposed by this rule may not be significant.
    There may be costs to residents as a result of eviction, 
particularly for persons with disabilities, and especially those with 
mobility impairments. HUD recognizes that this rule could adversely 
impact those with mobility impairment or particular frailties that 
prevent them from smoking in designated areas. As mentioned above, HUD 
will develop guidance on reasonable accommodation, and HUD solicits 
public comment on how to mitigate these potential adverse impacts.
    HUD recognizes that PHAs developing smoke-free housing policies may 
need technical assistance in writing the policies, engaging residents, 
and assisting residents who want to stop smoking. HUD will continue to 
provide free webinars and training sessions addressing these and 
related topics. PHAs are encouraged to work with their State HUD 
office, State and local tobacco prevention and cessation programs, 
state and community health organizations, and the Environmental 
Protection Agency's community-based asthma program network 
(www.asthmacommunitynetwork.org). CDC provides funding and technical 
assistance to State tobacco prevention and control programs and 
prevention and smoking cessation programs in every state and the 
District of Columbia (see https://www.cdc.gov/tobacco/stateandcommunity/tobacco_control_programs/ntcp/index.htm). Contact information for local 
organizations will be provided through HUD's Web site on a page 
dedicated to smoke-free resources that is under development.

D. Discussions With Stakeholders

    In addition to the October 2012 Federal Register notice soliciting 
information on adopting smoke-free policies in HUD subsidized housing, 
in March 2015, HUD reached out to organizations representative of the 
interests and concerns of PHAs to solicit feedback on moving forward 
with smoke-free policies in public housing. The organizations expressed 
support for smoke-free policies but also requested that any regulations 
requiring smoke-free policies allow sufficient flexibility for PHAs to 
tailor such policies to their local conditions. In this rule, HUD has 
strived to provide such flexibility.

III. This Proposed Rule--Summary of Changes

Applicability (Sec.  965.651)

    As stated above, this proposal would apply to all PHAs of any size 
and Moving-to-Work (MTW) agencies, but it would only apply to public 
housing, and would not apply to 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) assisted under the U.S. 
Housing Act of 1937 (the 1937 Act), other than assistance under section 
8 of the 1937 Act.

Requirements (Sec.  965.653)

    In Sec.  965.653, HUD provides that a PHA's smoke-free policy must 
prohibit all ``lit tobacco products.'' HUD proposes to define ``lit 
tobacco products'' as all lit tobacco products that involve the 
ignition and burning of tobacco leaves such as cigarettes, cigars, and 
pipes. HUD is proposing to require that PHAs prohibit all lit tobacco 
products not only in dwelling units, but also within indoor common 
areas and in outdoor areas within 25 feet of the housing and any PHA 
administrative office buildings (the ``restricted areas''). Outside of 
these areas, PHAs would be permitted to limit smoking to outdoor

[[Page 71767]]

designated smoking areas, which may include partially enclosed 
structures to accommodate residents who smoke, or, alternatively, to 
make their entire grounds smoke-free. PHAs that are not making the 
entire grounds smoke-free are encouraged to work with their residents 
to identify outdoor designated smoking areas that are accessible within 
the grounds of the public housing or administrative office buildings, 
that are not frequented by children (e.g., not a playground), and that 
are situated in a way that minimizes nonsmoking residents' exposure to 
secondhand smoke. While not required, a designated smoking area with 
shade and benches may assist residents with compliance.

Implementation (Sec.  965.653)

    HUD is proposing to provide PHAs 18 months from the effective date 
of the final rule to implement smoke-free public housing, as proposed 
by this rule. HUD believes that 18 months will provide PHAs sufficient 
time to conduct resident engagement, to hold any public meetings that 
are required to amend their PHA plans, and to incorporate the required 
new lease provisions during tenants' recertifications or at a date 
before the policy is fully effective. PHAs that already have a smoke-
free policy in effect will be required to review their existing 
policies for compliance with the requirements of this rule, as 
presented in the final rule, and amend their policies as necessary in 
the same timeframe of 18 months from the effective date of the final 
rule in order to implement smoke-free public housing, consistent with 
the requirements of the final rule.
    In addition, HUD is proposing to require PHAs to amend their PHA 
plans to incorporate the smoke-free policy. If the PHA determines the 
imposition of a smoke-free policy is a significant amendment to the PHA 
plan, the PHA must conduct public meetings in accordance with standard 
PHA Plan amendment procedures, and these meetings must be held in 
accessible buildings and provided in accessible formats, as necessary, 
for persons with disabilities and those who are limited in English 
proficiency. HUD would recommend that all PHAs conduct meetings with 
residents to fully explain the smoke-free building requirements and to 
best determine which outside areas, if any, to designate as smoking 
areas and to accommodate the needs of all residents.

Lease Provisions (Sec.  966.4)

    HUD believes that the best way to implement smoke-free policies is 
to incorporate the prohibition on indoor smoking in the leases each 
tenant must sign. This will allow PHAs to use enforcement mechanisms 
already in place and provide an additional notification of the policy 
to tenants. HUD expects PHAs to follow the PIH administrative grievance 
procedures during enforcement of their smoke-free housing policies. 
Because some tenants may not be recertified before the policy takes 
effect, PHAs may require that all remaining leases be amended, or may 
establish their own schedule for lease amendments, provided that all 
leases are amended by the effective date of the policy.

IV. Specific Questions for Comments

    While HUD welcomes comments on all aspects of this proposed rule, 
HUD is seeking specific comment on the following questions:
    1. What barriers that PHAs could encounter in implementing smoke-
free housing? What costs could PHAs incur? Are there any specific costs 
to enforcing such a policy?
    2. Does this proposed rule adequately address the adverse effects 
of smoking and secondhand smoke on PHAs and PHA residents?
    3. Does this proposed rule create burdens, costs, or confer 
benefits specific to families, children, persons with disabilities, 
owners, or the elderly, particularly if any individual or family is 
evicted as a result of this policy?
    4. For those PHAs that have already implemented a smoke-free 
policy, what exceptions to the requirements have been granted based on 
tenants' requests?
    5. For those PHAs that have already implemented a smoke-free 
policy, what experiences, lessons, or advice would you share based on 
your experiences with implementing and enforcing the policy?
    6. For those PHAs that have already implemented a smoke-free 
policy, what tobacco cessation services were offered to residents to 
assist with the change? Did you establish partnerships with external 
groups to provide or refer residents to these services?
    7. Are there specific areas of support that HUD could provide PHAs 
that would be particularly helpful in the implementation of the 
proposed rule?
    8. Should the policy extend to electronic nicotine delivery 
systems, such as e-cigarettes?
    9. Should the policy extend to waterpipe tobacco smoking? Does such 
smoking increase the risk of fire or property damage?

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 initial 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, or on HUD's Web site at https://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/hudclips/ia/. 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.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) 
establishes requirements for federal agencies to assess the effects of 
their regulatory actions on state, local, and tribal governments and 
the private sector. This rule will not impose any federal mandates on 
any state, local, or tribal governments or the private sector within 
the meaning of UMRA.

Environmental Review

    A Finding of No Significant Impact with respect to the environment 
has been made in accordance with HUD regulations in 24 CFR part 50 that

[[Page 71768]]

implement section 102(2)(C) of the National Environmental Policy Act of 
1969 (42 U.S.C. 4332(2)(C)). The Finding 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 Finding 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.

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.
    Notwithstanding HUD's view that this rule will not have a 
significant effect on a substantial number of small entities, HUD 
specifically invites comments regarding any less burdensome 
alternatives to this rule that will meet HUD's objectives as described 
in the preamble.

Executive Order 13132, Federalism

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

Catalog of Federal Domestic Assistance

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

List of Subjects

24 CFR Part 965

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

24 CFR Part 966

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

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

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

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

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

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

Subpart G--Smoke-Free Public Housing


Sec.  965.651  Applicability.

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


Sec.  965.653  Smoke-free public housing.

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


Sec.  965.655  Implementation.

    (a) Amendments. PHAs are required to implement the requirements of 
this subpart by amending each of the following:

[[Page 71769]]

    (1) All applicable PHA plans, according to the provisions in 24 CFR 
part 903.
    (2) Tenant leases, according to the provisions of 24 CFR 966.4.
    (b) Deadline. All PHAs must be in full compliance, with effective 
policy amendments, by [INSERT, AT THE FINAL RULE STAGE, THE DATE THAT 
IS 540 DAYS AFTER THE EFFECTIVE DATE OF THE FINAL RULE].

PART 966--PUBLIC HOUSING LEASE AND GRIEVANCE PROCEDURE

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

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

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


Sec.  966.4  Lease Requirements.

* * * * *
    (f) * * *
    (12) * * *
    (i) To assure that no tenant, member of the tenant's household, or 
guest engages in:
    (A) Criminal activity. (1) Any criminal activity that threatens the 
health, safety or right to peaceful enjoyment of the premises by other 
residents;
    (2) Any drug-related criminal activity on or off the premises; or
    (B) Civil activity. For any units covered by 24 CFR part 965, 
subpart G, any smoking of lit tobacco products in restricted areas, as 
defined by 24 CFR 965.653(a), or in other outdoor areas that the PHA 
has designated as smoke-free.
    (ii) To assure that no other person under the tenant's control 
engages in:
    (A) Criminal activity. (1) Any criminal activity that threatens the 
health, safety or right to peaceful enjoyment of the premises by other 
residents;
    (2) Any drug-related criminal activity on the premises; or
    (B) Civil activity. For any units covered by 24 CFR part 965, 
subpart G, any smoking of lit 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: October 22, 2015.
Lourdes Castro Ram[iacute]rez,
Principal Deputy Assistant Secretary for Public and Indian Housing.
[FR Doc. 2015-29346 Filed 11-16-15; 8:45 am]
 BILLING CODE 4210-67-P