[Federal Register Volume 81, Number 200 (Monday, October 17, 2016)]
[Notices]
[Pages 71523-71528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25056]



[[Page 71523]]

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-5980-N-01]


Statutorily Mandated Designation of Difficult Development Areas 
and Qualified Census Tracts for 2017

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

ACTION: Notice.

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SUMMARY: This document designates ``Difficult Development Areas'' 
(DDAs) and ``Qualified Census Tracts'' (QCTs) for purposes of the Low-
Income Housing Tax Credit (LIHTC) under Internal Revenue Code (IRC) 
Section 42 (26 U.S.C. 42). The United States Department of Housing and 
Urban Development (HUD) makes new DDA and QCT designations annually. 
Unlike the effective date of the 2016 QCTs and DDAs, which was July 1, 
2016, the 2017 QCTs and DDAs are effective January 1, 2017. In order to 
avoid designating areas unsuitable for residential development, such as 
airports, HUD is implementing a minimum population requirement for 
metropolitan Small Difficult Development Areas (SDDAs), as described 
below.

FOR FURTHER INFORMATION CONTACT: For questions on how areas are 
designated and on geographic definitions, 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 Seventh Street SW., Room 8234, Washington, DC 
20410-6000; telephone number 202-402-5878, or send an email to 
[email protected]. For specific legal questions pertaining to 
Section 42, 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-
317-4137, fax number 202-317-6731. For questions about the ``HUB Zone'' 
program, contact Mariana Pardo, Director, HUBZone Program, Office of 
Government Contracting and Business Development, U.S. Small Business 
Administration, 409 Third Street SW., Suite 8800, Washington, DC 20416; 
telephone number 202-205-2985, fax number 202-481-6443, or send an 
email to [email protected]. (These are not toll-free telephone numbers.) 
A text telephone is available for persons with hearing or speech 
impairments at 800-877-8339. 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 DDAs and QCTs are available electronically on the 
Internet at http://www.huduser.org/datasets/qct.html.

SUPPLEMENTARY INFORMATION: 

This Document

    This notice designates DDAs for each of the 50 states, the District 
of Columbia, Puerto Rico, American Samoa, Guam, the Northern Mariana 
Islands, and the U.S. Virgin Islands. The designations of DDAs in this 
notice are based on modified Fiscal Year (FY) 2016 Small Area Fair 
Market Rents (SAFMRs), FY2016 income limits, and 2010 Census population 
counts, as explained below.
    This notice also designates QCTs based on new income and poverty 
data released in the American Community Survey (ACS). HUD relies on the 
most recent three sets of ACS estimates to ensure that anomalous 
estimates, due to sampling, do not affect the QCT status of tracts.

2010 Census and 2008-2012, 2009-2013 and 2010-2014 American Community 
Survey Data

    Data from the 2010 Census on total population of metropolitan areas 
and nonmetropolitan areas are used in the designation of DDAs. The 
Office of Management and Budget (OMB) first published new metropolitan 
area definitions incorporating 2010 Census data in OMB Bulletin No. 13-
01 on February 28, 2013. FY2016 FMRs and FY2016 income limits used to 
designate DDAs are based on these metropolitan statistical area (MSA) 
definitions, with modifications to account for substantial differences 
in rental housing markets (and, in some cases, median income levels) 
within MSAs. SAFMRs are calculated for the ZIP Code Tabulation Areas 
(ZCTAs), or portions of ZCTAs within the metropolitan areas defined by 
OMB Bulletin No. 13-01.
    Data from the 2010 Census on total population of census tracts, 
metropolitan areas, and the nonmetropolitan parts of states are used in 
the designation of QCTs. The FY2016 income limits used to designate 
QCTs are based on these MSA definitions with modifications to account 
for substantial differences in rental housing markets (and in some 
cases median income levels) within MSAs. This QCT designation uses the 
OMB metropolitan area definitions published in OMB Bulletin No. 13-01 
on February 28, 2013, without modification for purposes of evaluating 
how many census tracts can be designated under the population cap, but 
uses the HUD-modified definitions and their associated area median 
incomes for determining QCT eligibility.
    Because the 2010 Decennial Census did not include questions on 
respondent household income, HUD uses ACS data to designate QCTs. The 
ACS tabulates data collected over 5 years to provide estimates of 
socioeconomic variables for small areas containing fewer than 20,000 
persons, such as census tracts. Due to anomalies in estimates from 
year-to-year, HUD utilizes three sets of ACS tabulations to ensure that 
anomalous estimates do not affect QCT status.

Background

    The U.S. Department of the Treasury (Treasury) and its Internal 
Revenue Service (IRS) are authorized to interpret and enforce the 
provisions of the LIHTC found at IRC Section 42. The Secretary of HUD 
is required to designate DDAs and QCTs by IRC Section 42(d)(5)(B). In 
order to assist in understanding HUD's mandated designation of DDAs and 
QCTs for use in administering IRC Section 42, a summary of the section 
is provided. The following summary does not purport to bind Treasury or 
the IRS in any way, nor does it purport to bind HUD, since HUD has 
authority to interpret or administer the IRC only in instances where it 
receives explicit statutory delegation.

Summary of the Low-Income Housing Tax Credit

    The LIHTC is a tax incentive intended to increase the availability 
of low-income housing. IRC 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 allowed a credit ceiling based on a statutory formula 
indicated at IRC Section 42(h)(3). States may carry forward unallocated 
credits derived from the credit ceiling for one year; however, to the 
extent such unallocated credits are not used by then, the credits go 
into a national pool to be redistributed 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 IRC Section 42 credits derived from the credit 
ceiling, states may also provide IRC Section 42 credits to owners of 
buildings based on the percentage of certain building costs financed by 
tax-

[[Page 71524]]

exempt bond proceeds. Credits provided under the tax-exempt bond 
``volume cap'' do not reduce the credits available from the credit 
ceiling.
    The credits allocated to a building are based on the cost of units 
placed in service as low-income units under particular minimum 
occupancy and maximum rent criteria. In general, a building must meet 
one of two thresholds to be eligible for the LIHTC; either: (1) 20 
percent of the units must be rent-restricted and occupied by tenants 
with incomes no higher than 50 percent of the Area Median Gross Income 
(AMGI), or (2) 40 percent of the units must be rent-restricted and 
occupied by tenants with incomes no higher than 60 percent of AMGI. A 
unit is ``rent-restricted'' if the gross rent, including an allowance 
for tenant-paid utilities, does not exceed 30 percent of the imputed 
income limitation (i.e., 50 percent or 60 percent of AMGI) applicable 
to that unit. 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 10 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 (as defined in IRC Section 42(i)(2)), or (2) 
30 percent of the qualified basis for the cost of acquiring certain 
existing buildings or projects that are federally subsidized. The 
actual credit rates are determined monthly under procedures specified 
in IRC Section 42 and cannot be less than 9 percent for buildings that 
are not federally subsidized. Individuals can use the credits up to a 
deduction equivalent of $25,000 (the actual maximum amount of credit 
that an individual can claim depends on the individual's marginal tax 
rate). For buildings placed in service after December 31, 2007, 
individuals can use the credits against the alternative minimum tax. 
Corporations, other than S or personal service corporations, can use 
the credits against ordinary income tax, and, for buildings placed in 
service after December 31, 2007, against the alternative minimum tax. 
These corporations also can deduct losses from the project.
    The qualified basis represents the product of the building's 
``applicable fraction'' and its ``eligible basis.'' 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 a capital account that are 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 DDAs or designated QCTs, or buildings designated by the 
state agency, eligible basis can be increased up to 130 percent from 
what it would otherwise be. This means that the available credits also 
can be increased by up to 30 percent. For example, if a 70 percent 
credit is available, it effectively could be increased to as much as 91 
percent.
    IRC Section 42 defines a DDA as an area designated by the Secretary 
of HUD that has high construction, land, and utility costs relative to 
the AMGI. All designated DDAs in metropolitan areas (taken together) 
may not contain more than 20 percent of the aggregate population of all 
metropolitan areas, and all designated areas not in metropolitan areas 
may not contain more than 20 percent of the aggregate population of all 
nonmetropolitan areas.
    Similarly, IRC Section 42 defines a QCT as an area designated by 
the Secretary of HUD and, for the most recent year for which census 
data are available on household income in such tract, in which either 
50 percent or more of the households have an income which is less than 
60 percent of the area median gross income or which has a poverty rate 
of at least 25 percent. All designated QCTs in a single metropolitan 
area or nonmetropolitan area (taken together) may not contain more than 
20 percent of the population of that metropolitan or nonmetropolitan 
area. Thus, unlike the restriction on DDA designations, QCTs are 
restricted by each individual area as opposed to the aggregate 
population across all metropolitan areas and nonmetropolitan areas.
    IRC Section 42(d)(5)(B)(v) allows states to award an increase in 
basis up to 30 percent to buildings located outside of federally 
designated DDAs and QCTs if the increase is necessary to make the 
building financially feasible. This state discretion applies only to 
buildings allocated credits under the state housing credit ceiling and 
is not permitted for buildings receiving credits in connection with 
tax-exempt bonds. Rules for such designations shall be set forth in the 
LIHTC-allocating agencies' qualified allocation plans (QAPs).

Explanation of HUD Designation Method

A. 2017 Difficult Development Areas

    In developing the list of DDAs, HUD compared housing costs with 
incomes. HUD used 2010 Census population for ZCTAs, and nonmetropolitan 
areas, and the MSA definitions, as published in OMB Bulletin No. 13-01 
on February 28, 2013, with modifications, as described below. In 
keeping with past practice of basing the coming year's DDA designations 
on data from the preceding year, the basis for these comparisons is the 
FY2016 HUD income limits for very low-income households (very low-
income limits, or VLILs), which are based on 50 percent of AMGI, and 
modified FMRs based on the FY2016 FMRs used for the Housing Choice 
Voucher (HCV) program. For metropolitan DDAs, HUD used SAFMRs based on 
three annual releases of ACS data, to compensate for statistical 
anomalies which affect estimates for some ZCTAs. For non-metropolitan 
DDAs, HUD used the final FY2016 FMRs as published on December 11, 2015 
(80 FR 77124) and periodically through July 29, 2016 (81 FR 50003).
    In formulating the FY2016 FMRs and VLILs, HUD modified the current 
OMB definitions of MSAs to account for differences in rents among areas 
within each current MSA that were in different FMR areas under 
definitions used in prior years. HUD formed these ``HUD Metro FMR 
Areas'' (HMFAs) in cases where one or more of the parts of newly 
defined MSAs that previously were in separate FMR areas. All counties 
added to metropolitan areas will be an HMFA with rents and incomes 
based on their own county data, where available. HUD no longer requires 
recent-mover rents to differ by five percent or more in order to form a 
new HMFA. All HMFAs are contained entirely within MSAs. All 
nonmetropolitan counties are outside of MSAs and are not broken up by 
HUD for purposes of setting FMRs and VLILs. (Complete details on HUD's 
process for determining FY2016 FMR areas and FMRs are available at 
https://www.huduser.gov/portal/datasets/fmr/fmrs/docsys.html?data=fmr16. Complete details on HUD's process for 
determining FY2015 income limits are available at https://www.huduser.gov/portal/datasets/il/il16/index.html.)
    HUD's unit of analysis for designating metropolitan DDAs consists 
of ZCTAs, whose SAFMRs are compared to

[[Page 71525]]

metropolitan VLILs. For purposes of computing VLILs in metropolitan 
areas, HUD considers entire MSAs, in cases where these were not broken 
up into HMFAs for purposes of computing VLILs; and HMFAs within the 
MSAs that were broken up for such purposes. Hereafter in this notice, 
the unit of analysis for designating metropolitan DDAs will be called 
the ZCTA, and the unit of analysis for nonmetropolitan DDAs will be the 
nonmetropolitan county or county equivalent area. The procedure used in 
making the DDA calculations follows:
    1. For each metropolitan ZCTA and each nonmetropolitan county, HUD 
calculated a ratio. HUD used a modified FY2016 two-bedroom SAFMR for 
ZCTAs, the final FY2016 two-bedroom FMR as published for non-
metropolitan counties, and the FY2016 four-person VLIL for this 
calculation. The modified FY2016 two-bedroom SAFMRs for ZCTAs differ 
from the final FY2016 SAFMRs in three ways.
    First, HUD did not limit the median gross ZCTA rent to 150 percent 
of the median gross Core-Based Statistical Area (CBSA) rent, as in the 
SAFMR calculations used in HUD's demonstration project. Second, HUD 
adjusted median rent values in New York City to correct for the 
downward-bias resulting from rent control and stabilization regulations 
using the New York City Housing and Vacancy Survey, which is conducted 
by the U.S. Census Bureau.\1\ No other jurisdictions have provided HUD 
with data that could be used to adjust SAFMRs for rent control or 
stabilization regulations. Finally, the adjustment for recent mover 
rents is calculated at the HMFA-level rather than CBSA-level.
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    \1\ HUD encourages other jurisdictions with rent control laws 
that affect rents paid by recent movers into existing units to 
contact HUD about what data might be provided or collected to adjust 
SAFMRs in those jurisdictions.
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    a. The numerator of the ratio, representing the development cost of 
housing, was the area's FY2016 FMR, or SAFMR in metropolitan areas. In 
general, the FMR is based on the 40th-percentile gross rent paid by 
recent movers to live in a two-bedroom apartment.
    b. The denominator of the ratio, representing the maximum income of 
eligible tenants, was the monthly LIHTC income-based rent limit, which 
was calculated as 1/12 of 30 percent of 120 percent of the area's VLIL 
(where 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, or SAFMR, to the LIHTC income-based rent 
limit were arrayed in descending order, separately, for ZCTAs and for 
nonmetropolitan counties. ZCTAs with populations less than 100 were 
excluded in order to avoid designating areas unsuitable for residential 
development, such as ZCTAs containing airports.
    3. The DDAs are those with the highest ratios cumulative to 20 
percent of the 2010 population of all metropolitan areas and all 
nonmetropolitan areas. For purposes of applying this population cap, 
HUD excluded the population in areas designated as 2017 QCTs. Thus, an 
area can be designated as a QCT or DDA, but not both.

B. Application of Population Caps to DDA Determinations

    In identifying DDAs, HUD applied caps, or limitations, as noted 
above. The cumulative population of metropolitan DDAs cannot exceed 20 
percent of the cumulative population of all metropolitan areas, and the 
cumulative population of nonmetropolitan DDAs cannot exceed 20 percent 
of the cumulative population of all nonmetropolitan areas.
    In applying these caps, HUD established procedures to deal with how 
to treat small overruns of the caps. The remainder of this section 
explains those procedures. 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 DDAs, there may be minimal overruns of the cap. HUD 
believes the designation of additional areas in the above examples of 
minimal overruns is consistent with the intent of the IRC. As long as 
the apparent excess is small due to measurement errors, some latitude 
is justifiable, because it is impossible to determine whether the 20 
percent cap has been exceeded. Despite the care and effort involved in 
a Decennial Census, the Census Bureau and all users of the data 
recognize that the population counts for a given area and for the 
entire country are not precise. Therefore, the extent of the 
measurement error is unknown. 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.

C. Qualified Census Tracts

    In developing this list of QCTs, HUD used 2010 Census 100-percent 
count data on total population, total households, and population in 
households; the median household income and poverty rate as estimated 
in the 2008-2012, 2009-2013 and 2010-2014, ACS tabulations; the FY2016 
Very Low-Income Limits (VLILs) computed at the HUD Metropolitan FMR 
Area (HMFA) level \2\ to determine tract eligibility; and the MSA 
definitions published in OMB Bulletin No. 13-01 on February 28, 2013, 
for determining how many eligible tracts can be designated under the 
statutory 20 percent population cap.
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    \2\ HUD income limits for very low-income households (very low-
income limits, or VLILs) are based on 50 percent of AMGI. In 
formulating the Fair Market Rents (FMRs) and VLILs, HUD modified the 
current OMB definitions of MSAs to account for substantial 
differences in rents among areas within each new MSA that were in 
different FMR areas under definitions used in prior years. HUD 
originally formed these ``HUD Metro FMR Areas'' (HMFAs) in cases 
where one or more of the parts of newly defined MSAs that previously 
were in separate FMR areas had 2000 Census based 40th-percentile 
recent-mover rents that differed, by 5 percent or more, from the 
same statistic calculated at the MSA level. In addition, a few HMFAs 
were formed on the basis of very large differences in AMGIs among 
the MSA parts. All HMFAs are contained entirely within MSAs. 
Furthermore, HUD created separate ``HUD Metro FMR Areas'' for all 
counties added to metropolitan areas in the February 28, 2013 re-
definition of metropolitan areas published by the Office of 
Management and Budget. All nonmetropolitan counties are outside of 
MSAs and are not broken up by HUD for purposes of setting FMRs and 
VLILs. (Complete details on HUD's process for determining FMR areas 
and FMRs are available at http://www.huduser.org/portal/datasets/fmr.html. Complete details on HUD's process for determining income 
limits are available at http://www.huduser.org/portal/datasets/il.html.)
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    HUD uses the HMFA-level AMGIs to determine QCT eligibility because 
the statute, specifically IRC Section 42(d)(5)(B)(iv)(II), refers to 
the same section of the IRC that defines income for purposes of tenant 
eligibility and unit maximum rent, specifically IRC Section 42(g)(4). 
By rule, the IRS sets these income limits according to HUD's VLILs, 
which, starting in FY2006 and thereafter, are established at the HMFA 
level. Similarly, HUD uses the entire MSA to determine how many 
eligible tracts can be designated under the 20 percent population cap 
as required by the statute (IRC Section

[[Page 71526]]

42(d)(5)(B)(ii)(III)), which states that MSAs should be treated as 
singular areas. The QCTs were determined as follows:
    1. To be eligible to be designated a QCT, 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. Due to potential 
statistical anomalies in the ACS 5-year estimates, one of these 
conditions must be met in at least 2 of the 3 evaluation years for a 
tract to be considered eligible for QCT designation. HUD calculates 60 
percent of AMGI by multiplying by a factor of 1.2 the HMFA or 
nonmetropolitan county FY2016 VLIL adjusted for inflation to match the 
ACS estimates. For example, the FY2016 VLILs were adjusted for 
inflation to 2013 dollars to compare with the median income estimate 
from the 2009-2013 ACS estimates. The inflation-adjusted 2013 VLIL was 
then deflated to 2012 for comparison with the 2008-2012 ACS estimates 
and inflated to 2014 to compare with the 2010-2014 ACS estimates.
    2. For each census tract, whether or not 50 percent of households 
have incomes 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) comparing the average-
household-size-adjusted income standard to the median household income 
for the tract reported in each of the three years of ACS tabulations 
(2008-2012, 2009-2013 and 2010-2014). HUD did not consider estimates of 
median household income to be statistically reliable unless the margin 
of error was less than half of the estimate (or a Margin of Error 
Ratio, MoER, of 50 percent or less). If at least two of the three 
estimates were not statistically reliable by this measure, HUD 
determined the tract to be ineligible under the income criterion due to 
lack of consistently reliable median income statistics across the three 
ACS tabulations. Since 50 percent of households in a tract have incomes 
above and below the tract median household income, if the tract median 
household income is less than the average-household-size-adjusted 
income standard for the tract, then more than 50 percent of households 
have incomes below the standard.
    3. For each census tract, the poverty rate was determined in each 
of the three releases of ACS tabulations (2008-2012, 2009-2013 and 
2010-2014) by dividing the population with incomes below the poverty 
line by the population for whom poverty status has been determined. As 
with the evaluation of tracts under the income criterion, HUD uses a 
higher data quality standard for evaluating ACS poverty rate data in 
designating the 2017 QCTs than HUD used in previous designations. HUD 
did not consider estimates of the poverty rate to be statistically 
reliable unless both the population for whom poverty status has been 
determined and the number of persons below poverty had MoERs of less 
than 50 percent of the respective estimates. In prior designations of 
QCTs, HUD accepted ACS data with MoERs of up to, but not including 100 
percent. If at least two of the three poverty rate estimates were not 
statistically reliable, HUD determined the tract to be ineligible under 
the poverty rate criterion due to lack of reliable poverty statistics 
across the ACS tabulations.
    4. QCTs are those census tracts in which 50 percent or more of the 
households meet the income criterion in at least two of the three years 
evaluated, or 25 percent or more of the population is in poverty in at 
least two of the three years evaluated, 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. The income and poverty criteria are each averaged over the three 
ACS tabulations (2008-2012, 2009-2013 and 2010-2014). Statistically 
reliable values that did not exceed the income and poverty rate 
thresholds were included in the average.
    b. Eligible tracts are placed in one of two groups based on the 
averaged values of the income and poverty criteria. The first group 
includes tracts that satisfy both the income and poverty criteria for 
QCTs for at least two of the three evaluation years. The second group 
includes tracts that satisfy either the income criterion or the poverty 
criterion in at least two of three years, but not both. A tract must 
qualify by at least one of the criteria in at least two of the three 
evaluation years to be eligible, although it does not need to be the 
same criterion.
    c. Tracts in the first group are ranked from highest to lowest by 
the average of the ratios of the tract average-household-size-adjusted 
income limit to the median household income. Then, tracts in the first 
group are ranked from highest to lowest by the average of the poverty 
rates. 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 
the event of a tie, more populous tracts are ranked above less populous 
ones.
    d. Tracts in the second group are ranked from highest to lowest by 
the average of the ratios of the tract average-household-size-adjusted 
income limit to the median household income. Then, tracts in the second 
group are ranked from highest to lowest by the average of the poverty 
rates. 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 the event of a tie, more populous tracts are ranked above less 
populous ones.
    e. The ranked first group is stacked on top of the ranked second 
group to yield a single, concatenated, ranked list of eligible census 
tracts.
    f. Working down the single, concatenated, ranked list of eligible 
tracts, census tracts are identified as 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, subsequent census tracts are 
then considered to determine if one or more census tract(s) with 
smaller population(s) could be designated without exceeding the 20 
percent limit.

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

    As stated in OMB Bulletin 13-01, defining metropolitan areas:

    ``OMB establishes and maintains the delineations of Metropolitan 
Statistical Areas, . . . solely for statistical purposes. . . . OMB 
does not take into account or attempt to anticipate any non-
statistical uses that may be made of the delineations, [.] In cases 
where . . . an agency elects to use the Metropolitan . . . Area 
definitions in nonstatistical programs, it is the sponsoring 
agency's responsibility to ensure that the delineations are 
appropriate for such use. An agency using the statistical 
delineations in a nonstatistical program may modify the 
delineations, but only for the purposes of that program. In such 
cases, any modifications should be clearly identified as 
delineations from the OMB statistical area delineations in order to 
avoid confusion with OMB's official definitions of Metropolitan . . 
. Statistical Areas.''

    Following OMB guidance, the estimation procedure for the FMRs and 
income limits incorporates the current OMB definitions of metropolitan 
areas based on the CBSA standards, as

[[Page 71527]]

implemented with 2010 Census data, but makes adjustments to the 
definitions, in order to separate subparts of these areas in cases 
where counties were added to an existing or newly defined metropolitan 
area. In CBSAs where subareas are established, it is HUD's view that 
the geographic extent of the housing markets are not the same as the 
geographic extent of the CBSAs.
    In the New England states (Connecticut, Maine, Massachusetts, New 
Hampshire, Rhode Island, and Vermont), HMFAs are defined according to 
county subdivisions or minor civil divisions (MCDs), rather than county 
boundaries. However, since no part of an HMFA is outside an OMB-
defined, county-based MSA, all New England nonmetropolitan counties are 
kept intact for purposes of designating Nonmetropolitan DDAs.

Future Designations

    DDAs are designated annually as updated income and FMR data are 
made public. QCTs are designated annually as new income and poverty 
rate data are released.

Effective Date

    The 2017 lists of QCTs and DDAs are effective:
    (1) For allocations of credit after December 31, 2016; or
    (2) for purposes of IRC Section 42(h)(4), if the bonds are issued 
and the building is placed in service after December 31, 2016.
    If an area is not on a subsequent list of QCTs or DDAs, the 2017 
lists are effective for the area if:
    (1) The allocation of credit to an applicant is made no later than 
the end of the 730-day period after the applicant submits a complete 
application to the LIHTC-allocating agency, and the submission is made 
before the effective date of the subsequent lists; or
    (2) for purposes of IRC Section 42(h)(4), if:
    (a) The bonds are issued or the building is placed in service no 
later than the end of the 730-day period after the applicant submits a 
complete application to the bond-issuing agency, and
    (b) the submission is made before the effective date of the 
subsequent lists, provided that both the issuance of the bonds and the 
placement in service of the building occur after the application is 
submitted.
    An application is deemed to be submitted on the date it is filed if 
the application is determined to be complete by the credit-allocating 
or bond-issuing agency. A ``complete application'' means that no more 
than de minimis clarification of the application is required for the 
agency to make a decision about the allocation of tax credits or 
issuance of bonds requested in the application.
    In the case of a ``multiphase project,'' the DDA or QCT status of 
the site of the project that applies for all phases of the project is 
that which applied when the project received its first allocation of 
LIHTC. For purposes of IRC Section 42(h)(4), the DDA or QCT status of 
the site of the project that applies for all phases of the project is 
that which applied when the first of the following occurred: (a) The 
building(s) in the first phase were placed in service, or (b) the bonds 
were issued.
    For purposes of this notice, a ``multiphase project'' is defined as 
a set of buildings to be constructed or rehabilitated under the rules 
of the LIHTC and meeting the following criteria:
    (1) The multiphase composition of the project (i.e., total number 
of buildings and phases in project, with a description of how many 
buildings are to be built in each phase and when each phase is to be 
completed, and any other information required by the agency) is made 
known by the applicant in the first application of credit for any 
building in the project, and that applicant identifies the buildings in 
the project for which credit is (or will be) sought;
    (2) The aggregate amount of LIHTC applied for on behalf of, or that 
would eventually be allocated to, the buildings on the site exceeds the 
one-year limitation on credits per applicant, as defined in the 
Qualified Allocation Plan (QAP) of the LIHTC-allocating agency, or the 
annual per-capita credit authority of the LIHTC allocating agency, and 
is the reason the applicant must request multiple allocations over 2 or 
more years; and
    (3) All applications for LIHTC for buildings on the site are made 
in immediately consecutive years.
    Members of the public are hereby reminded that the Secretary of 
Housing and Urban Development, or the Secretary's designee, has legal 
authority to designate DDAs and QCTs, by publishing lists of geographic 
entities as defined by, in the case of DDAs, the Census Bureau, the 
several states and the governments of the insular areas of the United 
States and, in the case of QCTs, by the Census Bureau; and to establish 
the effective dates of such lists. The Secretary of the Treasury, 
through the IRS thereof, has sole legal authority to interpret, and to 
determine and enforce compliance with the IRC and associated 
regulations, including Federal Register notices published by HUD for 
purposes of designating DDAs and QCTs. Representations made by any 
other entity as to the content of HUD notices designating DDAs and QCTs 
that do not precisely match the language published by HUD should not be 
relied upon by taxpayers in determining what actions are necessary to 
comply with HUD notices.

Interpretive Examples of 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 QCT or DDA status. The 
examples covering DDAs are equally applicable to QCT designations.
    (Case A) Project A is located in a 2017 DDA that is NOT a 
designated DDA in 2018 or 2019. A complete application for tax credits 
for Project A is filed with the allocating agency on November 15, 2017. 
Credits are allocated to Project A on October 30, 2019. Project A is 
eligible for the increase in basis accorded a project in a 2017 DDA 
because the application was filed BEFORE January 1, 2018 (the assumed 
effective date for the 2018 DDA lists), and because tax credits were 
allocated no later than the end of the 730-day period after the filing 
of the complete application for an allocation of tax credits.
    (Case B) Project B is located in a 2017 DDA that is NOT a 
designated DDA in 2018 or 2019. A complete application for tax credits 
for Project B is filed with the allocating agency on December 1, 2017. 
Credits are allocated to Project B on March 30, 2020. Project B is NOT 
eligible for the increase in basis accorded a project in a 2017 DDA 
because, although the application for an allocation of tax credits was 
filed BEFORE January 1, 2018 (the assumed effective date of the 2018 
DDA lists), the tax credits were allocated later than the end of the 
730-day period after the filing of the complete application.
    (Case C) Project C is located in a 2017 DDA that was not a DDA in 
2016. Project C was placed in service on November 15, 2016. A complete 
application for tax-exempt bond financing for Project C is filed with 
the bond-issuing agency on January 15, 2017. The bonds that will 
support the permanent financing of Project C are issued on September 
30, 2017. Project C is NOT eligible for the increase in basis otherwise 
accorded a project in a 2017 DDA, because the project was placed in 
service BEFORE January 1, 2017.
    (Case D) Project D is located in an area that is a DDA in 2017, but 
is NOT a DDA in 2018 or 2019. A complete

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application for tax-exempt bond financing for Project D is filed with 
the bond-issuing agency on October 30, 2017. Bonds are issued for 
Project D on April 30, 2019, but Project D is not placed in service 
until January 30, 2020. Project D is eligible for the increase in basis 
available to projects located in 2017 DDAs because: (1) One of the two 
events necessary for triggering the effective date for buildings 
described in Section 42(h)(4)(B) of the IRC (the two events being bonds 
issued and buildings placed in service) took place on April 30, 2019, 
within the 730-day period after a complete application for tax-exempt 
bond financing was filed, (2) the application was filed during a time 
when the location of Project D was in a DDA, and (3) both the issuance 
of the bonds and placement in service of Project D occurred after the 
application was submitted.
    (Case E) Project E is a multiphase project located in a 2017 DDA 
that is NOT a designated DDA or QCT in 2018. The first phase of Project 
E received an allocation of credits in 2017, pursuant to an application 
filed March 15, 2017, which describes the multiphase composition of the 
project. An application for tax credits for the second phase of Project 
E is filed with the allocating agency by the same entity on March 15, 
2018. The second phase of Project E is located on a contiguous site. 
Credits are allocated to the second phase of Project E on October 30, 
2018. The aggregate amount of credits allocated to the two phases of 
Project E exceeds the amount of credits that may be allocated to an 
applicant in one year under the allocating agency's QAP and is the 
reason that applications were made in multiple phases. The second phase 
of Project E is, therefore, eligible for the increase in basis accorded 
a project in a 2017 DDA, because it meets all of the conditions to be a 
part of a multiphase project.
    (Case F) Project F is a multiphase project located in a 2017 DDA 
that is NOT a designated DDA in 2018 or 2019. The first phase of 
Project F received an allocation of credits in 2017, pursuant to an 
application filed March 15, 2017, which does not describe the 
multiphase composition of the project. An application for tax credits 
for the second phase of Project F is filed with the allocating agency 
by the same entity on March 15, 2019. Credits are allocated to the 
second phase of Project F on October 30, 2019. The aggregate amount of 
credits allocated to the two phases of Project F exceeds the amount of 
credits that may be allocated to an applicant in one year under the 
allocating agency's QAP. The second phase of Project F is, therefore, 
NOT eligible for the increase in basis accorded a project in a 2017 
DDA, since it does not meet all of the conditions for a multiphase 
project, as defined in this notice. The original application for 
credits for the first phase did not describe the multiphase composition 
of the project. Also, the application for credits for the second phase 
of Project F was not made in the year immediately following the first 
phase application year.

Findings and Certifications

Environmental Impact

    This notice involves the establishment of fiscal requirements or 
procedures that are related to rate and cost determinations and do not 
constitute a development decision affecting the physical condition of 
specific project areas or building sites. Accordingly, under 40 CFR 
1508.4 of the regulations of the Council on Environmental Quality and 
24 CFR 50.19(c)(6) of HUD's regulations, this notice is categorically 
excluded from environmental review under the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321).

Federalism Impact

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any policy document that has federalism implications if 
the document either imposes substantial direct compliance costs on 
state and local governments and is not required by statute, or the 
document preempts state law, unless the agency meets the consultation 
and funding requirements of section 6 of the executive order. This 
notice merely designates DDAs and QCTs as required under IRC Section 
42, as amended, for the use by political subdivisions of the states in 
allocating the LIHTC. This notice also details the technical methods 
used in making such designations. As a result, this notice is not 
subject to review under the order.

    Dated: October 5, 2016.
Katherine M. O'Regan,
Assistant Secretary for Policy Development and Research.
[FR Doc. 2016-25056 Filed 10-14-16; 8:45 am]
 BILLING CODE 4210-67-P