[Federal Register Volume 75, Number 41 (Wednesday, March 3, 2010)]
[Notices]
[Pages 9609-9611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4386]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-5298-N-02]


Low-Income Housing Tax Credit (LIHTC) Tenant Data Collection: 
Responses To Advance Solicitation of Comment on Data Collection 
Methodology

AGENCY: Office of the Assistant Secretary for Policy Development and 
Research, HUD.

ACTION: Notice.

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SUMMARY: This notice follows the publication, on March 30, 2009, of an 
advance notice soliciting public comment on methodology for the 
collection of data on low-income housing tax credit housing, as 
required by statute. HUD received public comments on that advance 
notice, and, after considering the public comment, is now issuing the 
specific information collection requirements. This notice references 
the publication in the Federal Register (75 FR 8392, February 24, 
2010), of a notice of proposed information collection. Copies of the 
actual revised forms may be viewed by contacting the FOR FURTHER 
INFORMATION CONTACT listed in this notice. The proposed information 
collection is published pursuant to HUD's procedures for obtaining 
Office of Management and Budget (OMB) approval for information 
collections, and, as such, there is a provision for public comment. 
However, please be advised that if you commented on the March 30, 2009 
notice, your comments have already been considered and there is no need 
to resubmit them.

DATES: Effective Date: April 2, 2010.

FOR FURTHER INFORMATION CONTACT: For questions on LIHTC tenant data 
collection, contact Michael K. Hollar, Senior Economist, Economic 
Development and Public Finance Division, Office of Policy Development 
and Research, Department of Housing and Urban Development, 451 7th 
Street, SW., Room 8234, Washington, DC 20410-6000, telephone number 
202-402-5878, or send an e-mail to [email protected]. For 
specific legal questions pertaining to Section 42 of the Internal 
Revenue Code, contact Branch 5, Office of the Associate Chief Counsel, 
Passthroughs and Special Industries, Internal Revenue Service, 1111 
Constitution Avenue, NW., Washington, DC 20224, telephone number 202-
622-3040, fax number 202-622-4451. 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 the LIHTC program are available electronically on the 
Internet at http://www.huduser.org/datasets/lihtc.html.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 2835(d) of the Housing and Economic Reform Act of 2008 
(Pub. L. 110-289, approved July 30, 2008) (HERA) amends Title I of the 
U.S. Housing Act of 1937 (42 U.S.C. 1437 et seq.) (1937 Act) to add a 
new section 36 (to be codified as 42 U.S.C. 1437z-8) that requires each 
State agency administering tax credits under section 42 of the Internal 
Revenue Code of 1986 (low-income housing tax credits or LIHTC) to 
furnish HUD, not less than annually, information concerning the race, 
ethnicity, family composition, age, income, use of rental assistance 
under section 8(o) of the 1937 Act or other similar assistance, 
disability status, and monthly rental payments of households residing 
in each property receiving such credits through such agency. New 
section 36 of the 1937 Act further provides that to the extent 
feasible, collect such information through existing reporting processes 
and in a manner that minimizes burden on property owners.
    New section 36 requires HUD to establish standards and definitions 
for the information to be collected by State agencies and to provide 
States with technical assistance in establishing systems to compile and 
submit such information and, in coordination with other Federal 
agencies administering housing programs, establish procedures to 
minimize duplicative reporting requirements for properties assisted 
under multiple housing programs.
    On March 30, 2009, HUD published a notice at 74 FR 14149 seeking 
early input from State agencies and other interested stakeholders on a 
methodology or approach to meet the statutory requirement to furnish 
HUD the required information. HUD received approximately 25 comments on 
this notice by the comment due date of May 29, 2009, from entities 
including State housing finance and tax credit agencies; tax credit 
property managers; housing trade associations; research institutes; and 
nonprofit organizations. The following summary of public comments 
addresses the significant issues raised and the approach HUD is taking 
in response. Additionally, interested members of the public may view 
and respond to the notice of information collection published in the 
Federal Register (75 FR 8392); however, there is no need to resubmit 
comments HUD already received in connection with the March 30, 2009 
notice.

II. Public Comments

1. Tenant Data Collection

    Comment: A number of commenters supported the general idea of using 
the National Council of State Housing Agencies (NCSHA) Tenant Income 
Certification (TIC) for tenant data collection, but also suggested that 
States retain flexibility to make modifications. It was suggested that 
a separate page be added to collect racial, ethnic, and disability 
status data, along with a statement that responding is voluntary. Other 
commenters opposed the use of these forms on various grounds. Other 
commenters stated that Housing Finance Agencies (HFAs) should be given 
the flexibility to design their own forms, but use the NCSHA TIC to 
obtain uniform definitions of the required data, which can be adapted. 
Some

[[Page 9610]]

commenters stated that data should be collected on the head of 
household only or only in an aggregated form. Some commenters stated 
that the disability status questions were overly detailed and 
intrusive. Some commenters objected to the collection of social 
security numbers (SSNs), citing privacy concerns and lack of a secure 
way to store the information. Other commenters stated that data 
collected should be limited to items specifically identified by 
Congress. Some commenters, on the other hand, asked for additional 
data, such as zip codes.
    Response: Generally, HUD will collect the data required by the 
statute, along with a minimal amount of additional information needed 
to assist in collection of the data while minimizing the public burden. 
Accordingly, HUD declines to add questions about zip codes and 
additional breakdowns by type of assistance. The statutory direction to 
seek information about ``disability status'' seems in its plain meaning 
to simply be seeking information on whether a family has a member with 
a disability, and HUD accordingly is modifying that particular request 
for information. However, collecting data for only the head of 
household or in the aggregate would not enable HUD to report on family 
composition, as required by statute.
    As to forms, while HUD is submitting forms for approval and use if 
desired, HUD is not requiring the use of specific forms. The forms are 
provided as a way to convey the standards and definitions of the 
required data. Thus, States may incorporate the required data elements 
into their existing forms, provided that the definitions are consistent 
with those put forth by HUD.
    As to SSNs, HUD is balancing legitimate privacy concerns against 
the statutory direction to ``establish procedures to minimize 
duplicative reporting requirements for properties assisted under 
multiple housing programs'' and to minimize paperwork burdens on 
funding recipients. HUD has decided to request partial SSNs. In so 
doing, HUD is protecting privacy but also obtaining partial SSNs that 
will be used for data matching with existing HUD databases. Thus, HUD 
can obtain information, for example about assistance types, without 
adding to the burden on funding recipients. HUD plans to require 
reporting on project-based assistance, HOME, HOPE VI, Community 
Development Block Grant, and Rural Housing Service assistance, and use 
the partial SSNs to match data from other assistance programs, to 
obtain the needed data while minimizing the burdens of data collection.
    Comment: Commenters asked that the collection of information be 
limited in frequency, such as at initial move-in and annual updates. 
Racial, ethnic, and disability status data should only be collected at 
move-in. Some commenters stated that all personal data should only be 
collected once, as HFAs will learn of updates at recertification or if 
a tenant's assistance is modified; conversely, insofar as the Internal 
Revenue Service no longer requires income recertification, there is no 
need to continue collecting this data after move-in and it would not be 
third-party verified.
    Response: The tenant data will be collected annually as required by 
statute. HUD is taking steps to minimize the compliance burden to the 
extent possible given statutory requirements. After the initial data 
collection, in which data on all tenants is required, only data on re-
certifications and new tenants will be required. Consistent with 
statutory changes in HERA, tenants residing in 100 percent low-income 
unit properties are not subject to re-certification. The racial and 
ethnic data will only need to be collected once, but since disability 
status can change, this will need to be collected with re-
certification.
    Comment: Some commenters asked that information collected be 
limited in scope. Some commenters asked that HUD specify that data will 
not be collected on tenants not residing in LIHTC units. Some 
commenters asked that the age information be limited to the number of 
residents above and below the age of 18.
    Response: Pursuant to the statute, which covers ``State agencies 
administering tax credits,'' HUD will not require the collection of 
data on tenants in non-LIHTC units. The statutory requirement to 
collect race and ethnicity is not limited to head of household and thus 
the best reading of the statute is that the information must be 
collected for all tenants. The statutory requirement to collect 
household composition and age does not indicate a restriction to ``the 
number of persons over/under 18 years old,'' but rather, the plain 
language of the statute refers only to ``age.''
    Comment: Some commenters addressed data elements on the forms 
proposed by HUD. A commenter stated that data elements should include 
whether a project is ``family,'' ``elderly,'' or ``other'' in order to 
``assist in assessing the role of exclusionary land use requirements on 
LIHTC development.'' One commenter generally had the following 
suggestions: (1) Full tenant-level data on rental assistance are 
provided except where a project has 100 percent project-based tenants; 
(2) the project-level data are updated periodically to show changes in 
subsidy status; and (3) information on the specific type of rental 
assistance is available either on the form or through data matching 
with other subsidy programs.
    Response: HUD's proposed project data collection form asks whether 
a project is targeted to a particular group, including families and 
elderly. The data collection will be consistent with re-certification 
changes in HERA, which no longer requires re-certification for 
properties consisting of 100 percent low-income properties. While 
property-level data will not need to be updated annually, HUD will ask 
States to update any changes. HUD will match tenant data to other HUD 
administrative databases to identify assistance from other subsidy 
programs.
    Comment: Commenters suggested alternate data transfer formats. Two 
commenters stated that HUD should adopt the State Housing Finance 
Agency-LIHTC Data Transfer Standard as the methodology for collecting 
data because it is was created by affordable housing owners and trade 
associations, is open, accessible, and available to any user, and less 
costly than using a non-standard format.
    Response: HUD agrees that the LIHTC Data Transfer Standard is 
widely adopted and accessible. HUD's current Tenant Rental Assistance 
Certification System (TRACS) system, which is used to collect data on 
Section 8 tenants, uses this data transfer standard. HUD will be using 
a system similar to, and based on, TRACS.
    Comment: A number of commenters stated that data uploads in 
Extensible Markup Language (XML) format should be allowed, because XML 
files are easily produced by common software and most HFAs are familiar 
with XML. Commenters stated specifically that the National Affordable 
Housing Management Association (NAHMA) XML standard or a reasonable 
variation should be adopted or used as a starting point, as the 
industry has already invested effort in this standard and it has broad 
acceptance. One commenter stated that data transmission should flexibly 
allow Excel files or XML format files, as some HFAs may have issues 
and/or budget constraints in converting data to XML. Some commenters 
favored expanding the existing TRACS system, or cross-referencing 
TRACS, to include tax credit projects, but one commenter stated that 
TRACS is not a workable

[[Page 9611]]

system as it is not used by many States, unless it could be modified to 
allow XML upload and aggregate-only data.
    Response: XML is beneficial since it is a commonly used method of 
electronically encoding documents, usable over the Internet, and 
compatible with many programming interfaces that can be used to extract 
data. HUD will be using a system similar to TRACS to accept data files 
from the State housing finance agencies. This system accepts a variety 
of file formats, including XML. HUD plans to modify the system for this 
data collection effort to ensure that it accepts the requested file 
formats.
    Comment: HUD should make clear that responses to race, ethnicity, 
and disability status data are voluntary; whether the requirement to 
collect data exists for the 15-year tax credit compliance period or the 
extended period as well, arguing that the data collection should not 
apply after the initial 15 year period; and that, since there is no 
built-in enforcement mechanism, a good-faith effort to collect the data 
should suffice for compliance. One commenter stated that HUD should 
address how the data collection methodology will be coordinated with 
the authority HERA grants for State tax credit agencies to waive annual 
recertification requirements.
    Response: Data collection will include all low-income units 
monitored for compliance as long as they remain in the program, 
including those in the extended-use period. Tying the collection of 
information to the actual technical use of the credit makes little 
sense as most tax-credit owners actually sell or syndicate their 
credits at the outset. The key, rather, is that the units have received 
the benefit of tax credits and continue to remain in the program as 
low-income units, and it is those complying units that Congress seeks 
information about.
    Data collection will be consistent with new HERA re-certification 
rules for 100 percent low-income unit properties. As to the race, 
ethnicity, and disability questions, a household cannot be forced to 
provide this information. If the household does not provide the 
information, the State agency shall make its best efforts to report the 
information based on observation or derived from other sources.
    Comment: Commenters stated that HUD should make available a 
guidebook, procedures manual, or other informational guidance.
    Response: HUD is specifying the data it is collecting in this 
notice and in the paperwork approval request published in the Federal 
Register. In addition, the information contact listed in this rule can 
provide copies of the actual revised notices. HUD may publish 
additional guidance in the near future.
    Comment: HUD should make development-level data available as soon 
as possible after it is collected so that it can be analyzed, for 
example, to determine Fair Housing Act compliance or whether families 
with incomes below the poverty line are being served.
    Response: The statute requires HUD to compile and make the 
information collected available ``not less than annually.'' HUD plans 
to fulfill that statutory requirement.
    Comment: One commenter stated that data elements should be 
precisely defined so there is no variability from State to State. For 
example, all States should follow the same rounding rules.
    Response: HUD believes that most of the data being collected, such 
as age, ethnicity, family composition, disability status and age, is 
expressible in whole integers and will not require rounding. If it 
appears that rounding rules could affect the data in a statistically 
significant way, HUD may provide further guidance as needed.
    Comment: One commenter sought additional data collections for 
civil-rights related purposes. This commenter stated that HUD should 
collect racial and ethnic data on applicants for LIHTC housing to 
better assess affirmative marketing compliance. This commenter also 
stated that when initial data is released, HUD should contract with 
``reputable and independent research organizations to analyze the civil 
rights performance of LIHTC State agencies and project managers/
developers'' to identify possible patterns of civil rights violations 
for further action by HUD's Office of Fair Housing and Equal 
Opportunity. This commenter states that there has been a ``longstanding 
failure'' to collect racial and ethnic data in the LIHTC program.
    Response: HUD does not have statutory authority to collect data on 
applicants. While generally HUD supports improved civil rights 
performance in assisted housing, this particular statute is limited to 
collecting specified information. This information includes race, 
ethnicity, and disability status on households residing in properties 
receiving credits under the low-income housing tax credit program. 
Congress has not currently provided HUD with the authorization or 
funding to conduct the study suggested.
    Comment: Some commenters state that there should be transition 
periods of various times to give State agencies time to launch their 
new systems. Commenters also stated that compliance costs would be 
significant and that HUD should provide or petition Congress to provide 
additional funding to cover the extra costs.
    Response: HUD understands that States may encounter difficulty in 
completing the data collection requests. HUD will address on a State-
by-State basis the need for additional time and is procuring services 
to assist States in their transition. However, while Congress has 
authorized funds for this data collection, funds were not appropriated 
for this specific purpose in Fiscal Year (FY) 2009. The authorized 
funding amounts are limited to $2,500,000 for FY 2009 and $900,000 for 
each of FYs 2010 through 2013. States should be aware of this limited 
funding.

III. Information Collection

    Parties interested in viewing and commenting on the information 
collection requirements may do so by responding to the separate notice 
of information collection published in the Federal Register (75 FR 
8392).

    Dated: February 22, 2010.
Jean Lin Pao,
General Deputy Assistant Secretary for Policy Development and Research.
[FR Doc. 2010-4386 Filed 3-2-10; 8:45 am]
BILLING CODE 4210-67-P