[Federal Register Volume 66, Number 176 (Tuesday, September 11, 2001)]
[Notices]
[Pages 47266-47370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-22566]



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Part II





Department of Housing and Urban Development





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Statutorily Mandated Designation of Difficult Development Areas and 
Qualified Census Tracts for Section 42 of the Internal Revenue Code of 
1986; Notice

  Federal Register / Vol. 66, No. 176 / Tuesday, September 11, 2001 / 
Notices  

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-4401-N-05]


Statutorily Mandated Designation of Difficult Development Areas 
and Qualified Census Tracts for Section 42 of the Internal Revenue Code 
of 1986

AGENCY: Office of the Secretary, HUD.

ACTION: Notice.

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SUMMARY: This document designates ``Difficult Development Areas'' and 
``Qualified Census Tracts'' for purposes of the Low-Income Housing Tax 
Credit (``LIHTC'') under section 42 of the Internal Revenue Code of 
1986 (``the Code''). The United States Department of Housing and Urban 
Development (``HUD'') makes new Difficult Development Area designations 
annually and makes Qualified Census Tract Designations at this time due 
to changes in section 42 of the Code enacted in the Community Renewal 
Tax Relief Act of 2000 (``CRTRA'').

FOR FURTHER INFORMATION CONTACT: For questions on how areas are 
designated and on geographic definitions: Steven Ehrlich, Economist, 
Division of Economic Development and Public Finance, Office of Policy 
Development and Research, Department of Housing and Urban Development, 
451 Seventh Street, SW., Washington, DC 20410, telephone (202) 708-
0426, e-mail [email protected]. For specific legal questions 
pertaining to section 42 and this notice: Harold J. Gross, Senior Tax 
Attorney, Office of the General Counsel, Department of Housing and 
Urban Development, 451 Seventh Street, SW., Washington, DC 20410, 
telephone (202) 708-3260, e-mail [email protected]. For questions 
about the ``HUBZones'' program: Michael P. McHale, Assistant 
Administrator for Procurement Policy, Office of Government Contracting, 
Suite 8800, Small Business Administration, 409 Third Street, SW., 
Washington, DC 20416, telephone (202) 205-6731, fax (202) 205-7324, e-
mail [email protected]. A text telephone is available for persons 
with hearing or speech impairments at (202) 708-9300. (These are not 
toll-free telephone numbers.) Additional copies of this notice are 
available through HUD User at (800) 245-2691 for a small fee to cover 
duplication and mailing costs.
    Copies Available Electronically: This notice and additional 
information about Difficult Development Areas and Qualified Census 
Tracts are available electronically on the Internet (World Wide Web) at 
http://www.huduser.org/datasets/qct.html.

SUPPLEMENTARY INFORMATION:   

This Document

    The designations of Difficult Development Areas in this Notice are 
based on FY 2001 Fair Market Rents (``FMRs''), FY 2001 income limits 
and 2000 Census population counts as explained below. The designations 
of Qualified Census Tracts in this notice are based on 1990 Census 
data.

2000 Census

    Data from the 2000 Census on total population of metropolitan areas 
and nonmetropolitan counties are used in the designation of Difficult 
Development Areas. Data from the 2000 Census necessary to make 
Qualified Census Tract designations have not been released in their 
entirety by the Census Bureau. It is anticipated that all of the 2000 
Census data necessary to make Qualified Census Tract designations will 
be released in time to publish new designations in September 2002 for 
effect in 2003.

Background

    The U.S. Treasury Department and the Internal Revenue Service 
thereof are authorized to interpret and enforce the provisions of the 
Internal Revenue Code of 1986 (the ``Code''), including the Low-Income 
Housing Tax Credit (``LIHTC'') found at section 42 of the Code (26 
U.S.C. 42) as amended. The Secretary of HUD is required to designate 
Difficult Development Areas and Qualified Census Tracts by section 
42(d)(5)(C) of the Code.
    In order to assist in understanding HUD's mandated designation of 
Difficult Development Areas and Qualified Census Tracts for use in 
administering section 42 of the Code, a summary of section 42 is 
provided. The following summary does not purport to bind the Treasury 
or the IRS in any way, nor does it purport to bind HUD, as HUD has no 
authority to interpret or administer the Code, except in those 
instances where it has a specific delegation.

Summary of Low Income Housing Tax Credit

    The LIHTC is a tax incentive intended to increase the availability 
of low-income housing. Section 42 provides an income tax credit to 
owners of newly constructed or substantially rehabilitated low-income 
rental housing projects. The dollar amount of the LIHTC available for 
allocation by each state (the ``credit ceiling'') is limited by 
population. Each state is allocated credit based on a statutory formula 
indicated at section 42(h)(3). States may carry forward unused or 
returned credit derived from the credit ceiling for one year; if not 
used by then, credit goes into a national pool to be allocated to 
states as additional credit. State and local housing agencies allocate 
the state's credit ceiling among low-income housing buildings whose 
owners have applied for the credit. Besides section 42 credits derived 
from the credit ceiling, States may also provide section 42 credits to 
owners of buildings based upon the percentage of certain building costs 
financed by tax-exempt bond proceeds. Credits provided under the tax-
exempt bond ``volume cap'' do not reduce the credit available from the 
credit ceiling.
    The credit allocated to a building is based on the cost of units 
placed in service as low-income units under certain minimum occupancy 
and maximum rent criteria. In general, a building must meet one of two 
thresholds to be eligible for the LIHTC: either 20 percent of units 
must be rent-restricted and occupied by tenants with incomes no higher 
than 50 percent of the Area Median Gross Income (``AMGI''), or 40 
percent of units must be rent restricted and occupied by tenants with 
incomes no higher than 60 percent of AMGI. The term ``rent-restricted'' 
means that gross rent, including an allowance for utilities, cannot 
exceed 30 percent of the tenant's imputed income limitation (i.e., 50 
percent or 60 percent of AMGI). The rent and occupancy thresholds 
remain in effect for at least 15 years, and building owners are 
required to enter into agreements to maintain the low income character 
of the building for at least an additional 15 years.
    The LIHTC reduces income tax liability dollar for dollar. It is 
taken annually for a term of ten years and is intended to yield a 
present value of either (1) 70 percent of the ``qualified basis'' for 
new construction or substantial rehabilitation expenditures that are 
not federally subsidized (i.e., financed with tax-exempt bonds or 
below-market federal loans), or (2) 30 percent of the qualified basis 
for the cost of acquiring certain existing projects or projects that 
are federally subsidized. The actual credit rates are adjusted monthly 
for projects placed in service after 1987 under procedures specified in 
section 42. Individuals can use the credit up to a deduction equivalent 
of $25,000. This equals $9,900 at the 39.6 percent maximum marginal tax 
rate. Individuals cannot use the credit against the alternative minimum 
tax. Corporations, other than S or personal service corporations, can 
use the credit against ordinary income tax. They

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cannot use the credit against the alternative minimum tax. These 
corporations can also deduct the losses from the project.
    The qualified basis represents the product of the ``applicable 
fraction'' of the building and the ``eligible basis'' of the building. 
The applicable fraction is based on the number of low income units in 
the building as a percentage of the total number of units, or based on 
the floor space of low income units as a percentage of the total floor 
space of residential units in the building. The eligible basis is the 
adjusted basis attributable to acquisition, rehabilitation, or new 
construction costs (depending on the type of LIHTC involved). These 
costs include amounts chargeable to capital account incurred prior to 
the end of the first taxable year in which the qualified low income 
building is placed in service or, at the election of the taxpayer, the 
end of the succeeding taxable year. In the case of buildings located in 
designated Qualified Census Tracts or designated Difficult Development 
Areas, eligible basis can be increased up to 130 percent of what it 
would otherwise be. This means that the available credit also can be 
increased by up to 30 percent. For example, if the 70 percent credit is 
available, it effectively could be increased up to 91 percent.
    Section 42 of the Code defines a Difficult Development Area as any 
area designated by the Secretary of HUD as an area that has high 
construction, land, and utility costs relative to the AMGI. All 
designated Difficult Development Areas in MSAs/PMSAs may not contain 
more than 20 percent of the aggregate population of all MSAs/PMSAs, and 
all designated areas not in metropolitan areas may not contain more 
than 20 percent of the aggregate population of all non-metropolitan 
counties.
    Under section 42(d)(5)(C) of the Code, a Qualified Census Tract is 
any census tract (or equivalent geographic area defined by the Bureau 
of the Census) in which at least 50 percent of households have an 
income less than 60 percent of the AMGI or, as amended by the Community 
Renewal Tax Relief Act of 2000, where the poverty rate is at least 25 
percent. There is a limit on the number of Qualified Census Tracts in 
any Metropolitan Statistical Area (``MSA'') or Primary Metropolitan 
Statistical Area (``PMSA'') that may be designated to receive an 
increase in eligible basis: all of the designated census tracts within 
a given MSA/PMSA may not together contain more than 20 percent of the 
total population of the MSA/PMSA. For purposes of HUD designations of 
Qualified Census Tracts, all non-metropolitan areas in a state are 
treated as if they constituted a single metropolitan area.

Explanation of HUD Designation Methodology

A. Qualified Census Tracts

    In developing this list of LIHTC Qualified Census Tracts, HUD used 
1990 Census data and the MSA/PMSA definitions established by the Office 
of Management and Budget (``OMB'') in OMB Bulletin No. 99-04 on June 
30, 1999. Beginning with the 1990 census, tract-level data are 
available for the entire country. Generally, in metropolitan areas 
these geographic divisions are called census tracts while in most non-
metropolitan areas the equivalent nomenclature is Block Numbering Area 
(``BNA''). BNAs are treated as census tracts for the purposes of this 
Notice.
    The LIHTC Qualified Census Tracts were determined as follows:
    1. A census tract must have 50 percent of its households with 
incomes below 60 percent of the AMGI or have a poverty rate of 25 
percent or more to be ``eligible.'' HUD has defined 60 percent of AMGI 
as 120 percent of HUD's Very Low Income Limits (VLILs) 1990 Census 
benchmarks, which are based on 50 percent of area median family income. 
The 1990 income benchmarks are used because they match the 1990 Census 
tract-level income data.
    2. For each census tract, the percentage of households below the 60 
percent income standard (the ``income criterion'') was determined by 
(a) calculating the average household size of the census tract, (b) 
applying the income standard after adjusting it to match the average 
household size, and (c) calculating the number of households with 
incomes below the income standard.
    3. For each census tract, the poverty rate was determined by 
dividing the population with incomes below poverty by the population 
for whom poverty status has been determined.
    4. Qualified Census Tracts are those in which 50 percent or more of 
the households meet the income criterion or 25 percent or more of the 
population is in poverty such that the population of all census tracts 
that satisfy either one or both of these criteria does not exceed 20 
percent of the total population of the respective area.
    5. In areas where more than 20 percent of the population resides in 
eligible census tracts, one of two procedures is followed.
    a. If more than 20 percent of the population resides in census 
tracts eligible by the income criterion, eligible census tracts are 
ordered from the highest percentage of eligible households to the 
lowest. Starting with the highest percentage, census tracts are 
included until the 20 percent limit is exceeded. If a census tract is 
excluded because it raises the percentage above 20 percent, then 
subsequent census tracts are considered to determine if one or more 
census tract(s) with smaller population(s) could be included without 
exceeding the 20 percent limit. No census tracts eligible solely by 
their poverty rates are designated in these areas.
    b. If less than 20 percent of the population resides in census 
tracts eligible by the income criterion, census tracts eligible solely 
by their poverty rates are ordered from the highest poverty rate to the 
lowest. Starting with the highest poverty rate, census tracts are 
included until the 20 percent limit is exceeded. If a census tract is 
excluded because it raises the percentage above 20 percent, then 
subsequent census tracts are considered to determine if one or more 
census tract(s) with smaller population(s) could be included without 
exceeding the 20 percent limit.

B. Difficult Development Areas

    In developing the list of Difficult Development Areas, HUD compared 
incomes with housing costs. HUD used 2000 Census population data and 
the MSA/PMSA definitions as published by the Office of Management and 
Budget in OMB Bulletin No. 99-04 on June 30, 1999, with the exceptions 
described in section D., below. The basis for these comparisons was the 
fiscal year (``FY'') 2001 HUD income limits for Very Low Income 
households and Fair Market Rents (``FMRs'') used for the section 8 
Housing Assistance Payments program. The procedure used in making the 
Difficult Development Area calculations follows:
    1. For each MSA/PMSA and each non-metropolitan county, a ratio was 
calculated. This calculation used the FY 2001 two-bedroom FMR and the 
FY 2001 four-person VLIL.
    a. The numerator of the ratio was the area's FY 2001 FMR. In 
general the FMR is based on the 40th percentile rent paid by recent 
movers for a two-bedroom apartment. In metropolitan areas granted a FMR 
based on the 50th percentile rent for purposes of improving the 
administration of HUD's Housing Choice Voucher program (see 66 FR 162) 
the 40th percentile rent is used for nationwide consistency of 
comparisons.
    b. The denominator of the ratio was the monthly LIHTC income-based 
rent

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limit calculated as 1/12 of 30 percent of 120 percent of the area's 
VLIL (where 120 percent of the VLIL was rounded to the nearest $50 and 
not allowed to exceed 80 percent of the AMGI in areas where the VLIL is 
adjusted upward from its 50 percent of AMGI base).
    2. The ratios of the FMR to the LIHTC income-based rent limit were 
arrayed in descending order, separately, for MSAs/PMSAs and for non-
metropolitan counties.
    3. The Difficult Development Areas are those with the highest 
ratios cumulative to 20 percent of the 2000 population of all 
metropolitan areas and of all non-metropolitan counties.

C. Application of Population Caps to Difficult Development Area 
Determinations

    In identifying Difficult Development Areas and Qualified Census 
Tracts, HUD applied various caps, or limitations, as noted above. The 
cumulative population of metropolitan Difficult Development Areas 
cannot exceed 20 percent of the cumulative population of all 
metropolitan areas and the cumulative population of nonmetropolitan 
Difficult Development Areas cannot exceed 20 percent of the cumulative 
population of all nonmetropolitan counties.
    In applying these caps, HUD established procedures to deal with how 
to treat small overruns of the caps. The remainder of this section 
explains the procedure. In general, HUD stops selecting areas when it 
is impossible to choose another area without exceeding the applicable 
cap. The only exceptions to this policy are when the next eligible 
excluded area contains either a large absolute population or a large 
percentage of the total population, or the next excluded area's ranking 
ratio as described above was identical (to four decimal places) to the 
last area selected, and its inclusion resulted in only a minor overrun 
of the cap. Thus for both the designated metropolitan and 
nonmetropolitan Difficult Development Areas there may be a minimal 
overrun of the cap. HUD believes the designation of these additional 
areas is consistent with the intent of the legislation. Some latitude 
is justifiable because it is impossible to determine whether the 20 
percent cap has been exceeded, as long as the apparent excess is small, 
due to measurement error. Despite the care and effort involved in a 
decennial census, it is recognized by the Census Bureau, and all users 
of the data, that the population counts for a given area and for the 
entire country are not precise. The extent of the measurement error is 
unknown. Thus, there can be errors in both the numerator and 
denominator of the ratio of populations used in applying a 20 percent 
cap. In circumstances where a strict application of a 20 percent cap 
results in an anomalous situation, recognition of the unavoidable 
imprecision in the census data justifies accepting small variances 
above the 20 percent limit.

D. Exceptions to OMB Definitions of MSAs/PMSAs and Other Geographic 
Matters

    As stated in OMB Bulletin 99-04 defining metropolitan areas:

    OMB establishes and maintains the definitions of the 
[Metropolitan Areas] solely for statistical purposes * * * OMB does 
not take into account or attempt to anticipate any nonstatistical 
uses that may be made of the definitions * * * We recognize that 
some legislation specifies the use of metropolitan areas for 
programmatic purposes, including allocating Federal funds.

HUD makes exceptions to OMB definitions in calculating FMRs by deleting 
counties from metropolitan areas whose OMB definitions are determined 
by HUD to be larger than their housing market areas.
    The following counties are assigned their own FMRs and VLILs and 
evaluated as if they were separate metropolitan areas for purposes of 
designating Difficult Development Areas.
Metropolitan Area and Counties Deleted
Chicago, IL: DeKalb, Grundy, and Kendall Counties.
Cincinnati-Hamilton, OH-KY-IN: Brown County, Ohio; Gallatin, Grant, and 
Pendleton Counties, Kentucky; and Ohio County, Indiana.
Dallas, TX: Henderson County.
Flagstaff, AZ-UT: Kane County, Utah.
New Orleans, LA: St. James Parish.
Washington, DC-MD-VA-WV: Clarke, Culpeper, King George, and Warren 
Counties, Virginia; and Berkely and Jefferson Counties, West Virginia.
    Affected MSAs/PMSAs are assigned the indicator ``(part)'' in the 
list of Metropolitan Difficult Development Areas. Any of the excluded 
counties designated as difficult development areas separately from 
their metropolitan areas are designated by the county name.
    In the New England states (Connecticut, Maine, Massachusetts, New 
Hampshire, Rhode Island, and Vermont) OMB defines MSAs/PMSAs according 
to county subdivisions or Minor Civil Divisions (``MCDs'') rather than 
county boundaries. Thus, when a New England county is designated as a 
Nonmetropolitan Difficult Development Area, only that part of the 
county (the group of MCDs) not included in any MSA/PMSA is the 
Nonmetropolitan Difficult Development Area. Affected counties are 
assigned the indicator ``(part)'' in the list of Nonmetropolitan 
Difficult Development Areas. Also in the New England States, census 
tracts may be cut by MSA/PMSA boundaries. Only those LIHTC projects 
located in the part of the tract in the listed MSA/PMSA or 
nonmetropolitan area may be allowed the increase in basis. Affected 
tracts are marked with an asterisk (*) in the list of Qualified Census 
Tracts
    For the convenience of readers of this notice, the geographic 
definitions of designated Metropolitan Difficult Development Areas and 
the MCDs included in Nonmetropolitan Difficult Development Areas in the 
New England states are included in the list of Difficult Development 
Areas.
    Certain nonmetropolitan county equivalent areas in Alaska for which 
FMRs and VLILs are calculated and thus form the basis of Difficult 
Development Area designations are no longer recognized as geographic 
entities by the Census Bureau. Therefore, no 2000 Census population 
counts are produced for these areas. HUD estimates the 2000 population 
of these areas as follows:
    1. The 2000 Population of Denali Borough (1,893) was allocated 
entirely to the Yukon-Koyukuk Census Area. The part of Denali Borough 
created from the Southeast Fairbanks Census Area was deemed uninhabited 
after examination of Census Block data for the area of Denali Borough 
formerly in the Southeast Fairbanks Census Area.
    2. The population of Yakutat City and Borough (808) was allocated 
to the former Skagway-Yakutat-Angoon Census Area (680) and the Valdez-
Cordova Census Area (128). The populations of Yakutat City and Borough 
Census Blocks located east of 141 deg. longitude were allocated to the 
Skagway-Yakutat-Angoon Census Area. The populations of Yakutat City and 
Borough Census Blocks located west of 141 deg. longitude were allocated 
to the Valdez-Cordova Census Area.

Future Designations

    Difficult Development Areas are designated annually as updated 
income and FMR data become available. Qualified Census Tracts will be 
redesignated next year when data from the 2000 Census become available.

Effective Date

    The list of Difficult Development Areas and the list of Qualified 
Census Tracts is effective for allocations of credit made after 
December 31, 2001. In the case of a building described in

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section 42(h)(4)(B) of the Code, the list is effective if the bonds are 
issued and the building is placed in service after December 31, 2001.

Interpretive Examples for Effective Date

    For the convenience of readers of this Notice, interpretive 
examples are provided below to illustrate the consequences of the 
effective date in areas that gain or lose Difficult Development Area 
status with respect to projects described in section 42(h)(4)(B) of the 
Code. The examples are equally applicable to Qualified Census Tract 
designations.

Case A

    Project ``A'' is located in a newly-designated 2002 Difficult 
Development Area. Bonds are issued for Project ``A'' on November 1, 
2001, and Project ``A'' is placed in service March 1, 2002. Project 
``A'' IS NOT eligible for the increase in basis otherwise accorded a 
project in this location because the bonds were issued BEFORE January 
1, 2002.

Case B

    Project ``B'' is located in a newly-designated 2002 Difficult 
Development Area. Project ``B'' is placed in service November 15, 2001. 
The bonds which will support the permanent financing of Project ``B'' 
are issued January 15, 2002. Project ``B'' IS NOT eligible for the 
increase in basis otherwise accorded a project in this location because 
the project was placed in service BEFORE January 1, 2002.

Case C

    Project ``C'' is located in an area which is a Difficult 
Development Area in 2001, but IS NOT a Difficult Development Area in 
2002. Bonds are issued for Project ``C'' on October 30, 2001, but 
Project ``C'' is not placed in service until March 30, 2002. Project 
``C'' is eligible for the increase in basis available to projects 
located in 2001 Difficult Development Areas because the first of the 
two events necessary for triggering the effective date for buildings 
described in section 42(h)(4)(B) of the Code (the two events being 
bonds issued and buildings placed in service) took place on October 30, 
2001, a time when project ``C'' was located in a Difficult Development 
Area.

Other Matters

Environmental Impact

    In accordance with 40 CFR 1508.4 of the CEQ regulations and 24 CFR 
50.19(c)(6) of the HUD regulations, the policies and procedures 
contained in this notice provide for the establishment of fiscal 
requirements or procedures which do not constitute a development 
decision that affects the physical condition of specific project areas 
or building sites and therefore, are categorically excluded from the 
requirements of the National Environmental Policy Act, except for 
extraordinary circumstances, and no FONSI is required.

Regulatory Flexibility Act

    In accordance with 5 U.S.C. section 605(b) (the Regulatory 
Flexibility Act), the undersigned hereby certifies that this notice 
does not have a significant economic impact on a substantial number of 
small entities. The notice involves the designation of ``Difficult 
Development Areas'' and ``Qualified Census Tracts'' as required by 
section 42 of the Code, as amended, for use by political subdivisions 
of the States in allocating the Low-Income Housing Tax Credit. This 
notice places no new requirements on the States, their political 
subdivisions, or the applicants for the credit. This notice also 
details the technical methodology used in making such designations.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits, to the 
extent practicable and permitted by law, an agency from promulgating 
policies that have federalism implications and either impose 
substantial direct compliance costs on State and local governments and 
are not required by statute, or preempt State law, unless the relevant 
requirements of section 6 of the Executive Order are met. As a result, 
the notice is not subject to review under the order. The notice merely 
designates ``DifficultDevelopment Areas'' and ``Qualified Census 
Tracts'' as required under section 42 of the Internal Revenue Code, as 
amended, for the use by political subdivisions of the States in 
allocating the Low-Income Housing Tax Credit. The notice also details 
the technical methodology used in making such designations.

    Dated: August 30, 2001.
Mel Martinez,
Secretary.
BILLING CODE 4210-62-P

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[FR Doc. 01-22566 Filed 9-10-01; 8:45 am]
BILLING CODE 4210-62-C