[Federal Register Volume 67, Number 239 (Thursday, December 12, 2002)]
[Notices]
[Pages 76452-76557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31081]



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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. 67, No. 239 / Thursday, December 12, 2002 / 
Notices  

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-4799-N-01]


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'' (QCTs) for purposes of the Low-Income 
Housing Tax Credit (LIHTC) under section 42 of the Internal Revenue 
Code of 1986 (Code). The United States Department of Housing and Urban 
Development makes new Difficult Development Area designations annually 
and makes Qualified Census Tract Designations at this time due to the 
recent release of relevant data from the 2000 Census.

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: Office of the Associate Chief Counsel, 
Passthroughs & Special Industries, Internal Revenue Service, 1111 
Constitution Avenue, NW.; Washington, DC 20224, telephone (202) 622-
3000, fax (202) 622-4524. 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 QCTs 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 Fiscal Year (FY) 2002 Fair Market Rents (FMRs), FY 2002 income 
limits and 2000 Census population counts as explained below. This 
notice designates Difficult Development Areas for each of the fifty 
States, the District of Columbia, Puerto Rico, American Samoa, Guam, 
the Northern Mariana Islands, and the Virgin Islands. The designations 
of QCTs in this Notice are based on 2000 Census data. This notice 
designates QCTs for each of the fifty States, the District of Columbia, 
Puerto Rico, and the Virgin Islands. The QCT designations for American 
Samoa, Guam, and the Northern Mariana Islands are unchanged and remain 
based on 1990 census data as 2000 census data necessary for the 
designation of QCTs has not been released for these areas. The QCT 
designations for these areas are repeated in this notice for 
convenience.

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. The Census Bureau has recently released most of the 
data from the 2000 Census necessary to make Qualified Census Tract 
designations. The Census Bureau has released the data needed for 
updated Qualified Census Tract designations for each of the fifty 
States, the District of Columbia, Puerto Rico, and the Virgin Islands. 
The Census Bureau has not yet released the data needed to update 
Qualified Census Tract designations for American Samoa, Guam, and the 
Northern Mariana Islands. Thus the 2003 QCTs for American Samoa, Guam, 
and the Northern Mariana Islands, are unchanged from the 2002 QCTs.

Background

    The U.S. Treasury Department and the Internal Revenue Service, 
thereof, are authorized to interpret and enforce the provisions of the 
Code, including the 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 QCTs by section 42(d)(5)(C) of the Code.
    In order to assist in understanding HUD's mandated designation of 
Difficult Development Areas and QCTs 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 (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

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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 $9,650 at the 38.6 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 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 QCTs 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 (Metropolitan 
Statistical Areas)/PMSAs (Primary Metropolitan Statistical Areas) 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 
(QCTs) 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, where the poverty 
rate is at least 25 percent. There is a limit on the number of QCTs in 
any MSA or 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 QCT, 
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 QCTs, HUD used 2000 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. The LIHTC 
QCTs 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.'' In metropolitan areas, HUD 
calculates 60 percent of AMGI by multiplying the MSA/PMSA median family 
income for 1999 as reported by the 2000 Census by a factor of 0.6. 
Outside of metropolitan areas, HUD calculates 60 percent of AMGI by 
multiplying the state-specific, non-metro balance median family income 
by a factor of 0.6.
    2. For each census tract, the percentage of households below the 60 
percent income standard (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. QCTs 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, census tracts are designated as QCTs in 
accordance with the following procedure:
    a. Eligible tracts are placed in one of two groups. The first group 
includes tracts that satisfy both the income and poverty criteria. The 
second group includes tracts that satisfy either the income criterion 
or the poverty criterion, but not both.
    b. Tracts in the first group are ranked from lowest to highest on 
the income criterion. Then tracts in the first group are ranked from 
lowest to highest on the poverty criterion. The two ranks are averaged 
to yield a combined rank. The tracts are then sorted on the combined 
rank, with the census tract with the highest combined rank being placed 
at the top of the sorted list. In cases of tied combined ranks, more 
populous tracts are ranked above less populous ones.
    c. Tracts in the second group are ranked from lowest to highest on 
the income criterion. Then tracts in the second group are ranked from 
lowest to highest on the poverty criterion. The two ranks are then 
averaged to yield a combined rank. The tracts are then sorted on the 
combined rank, with the census tract with the highest combined rank 
being placed at the top of the sorted list. In cases of tied combined 
ranks, more populous tracts are ranked above less populous ones.
    d. The ranked first group is stacked on top of the ranked second 
group to yield a single, concatenated, ranked list of eligible census 
tracts.
    e. Working down the single, concatenated, ranked list of eligible 
tracts, census tracts are designated until the designation of an 
additional tract would cause the 20 percent limit to be exceeded. If a 
census tract is not designated because doing so would raise 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 designated 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 
FY 2002 HUD FMRs and the FY 2002 HUD income

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limits for Very Low-Income households (or Very Low-Income Limits, 
``VLILs'') used for the housing Choice Voucher 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 2002 two-bedroom FMR and the 
FY 2002 four-person VLIL.
    a. The numerator of the ratio was the area's FY 2002 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 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 QCTs, 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 non-metropolitan Difficult Development Areas cannot 
exceed 20 percent of the cumulative population of all non-metropolitan 
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 non-
metropolitan 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 Berkeley 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 
non-metropolitan Difficult Development Area, only that part of the 
county (the group of MCDs) not included in any MSA/PMSA is the non-
metropolitan Difficult Development Area. Affected counties are assigned 
the indicator ``(part)'' in the list of non-metropolitan 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 non-metropolitan area may 
be allowed the increase in basis. Affected tracts are marked with an 
asterisk (*) in the list of QCTs.
    For the convenience of readers of this notice, the geographic 
definitions of designated Metropolitan Difficult Development Areas and 
the MCDs included in non-metropolitan Difficult Development Areas in 
the New England States are included in the list of Difficult 
Development Areas.
    Certain non-metropolitan 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, and maps of, 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

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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. QCTs are updated periodically to 
reflect changes in OMB's designations of metropolitan areas.

Effective Date

    The list of Difficult Development Areas and the list of QCTs is 
effective for allocations of credit made after December 31, 2002. In 
the case of a building described in 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, 2002.

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 2003 Difficult 
Development Area. Bonds are issued for Project A on November 1, 2002, 
and Project A is placed in service March 1, 2003. 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, 2003.
    (Case B) Project B is located in a newly-designated 2003 Difficult 
Development Area. Project B is placed in service November 15, 2002. The 
bonds which will support the permanent financing of Project B are 
issued January 15, 2003. 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, 2003.
    (Case C) Project C is located in an area which is a Difficult 
Development Area in 2002, but is not a Difficult Development Area in 
2003. Bonds are issued for Project C on October 30, 2002, but Project C 
is not placed in service until March 30, 2003. Project C is eligible 
for the increase in basis available to projects located in 2002 
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, 2002, 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 Finding of No Significant Impact 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 QCTs 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 12612, Federalism

    The General Counsel, as the Designated Official under section 6(a) 
of Executive Order 12612, Federalism, has determined that the policies 
contained in this notice will not have any substantial direct effects 
on states or their political subdivisions, or the relationship between 
the federal government and the states, or on the distribution of power 
and responsibilities among the various levels of government. As a 
result, the notice is not subject to review under the order. The notice 
merely designates Difficult Development Areas and QCTs 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: December 12, 2002.
Mel Martinez,
Secretary.
BILLING CODE 4210-62-P

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[FR Doc. 02-31081 Filed 12-11-02; 8:45 am]
BILLING CODE 4210-62-C