[Federal Register: December 12, 2002 (Volume 67, Number 239)]
[Notices]
[Page 76451-76557]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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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
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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 Steven_R._Ehrlich@hud.gov. 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 michael.mchale@sba.gov. 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.
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From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 76501-76550]] Statutorily Mandated Designation of Difficult Development Areas
and Qualified Census Tracts for Section 42 of the Internal Revenue Code
of 1986
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[[Continued on page 76551]]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 76551-76557]] Statutorily Mandated Designation of Difficult Development Areas
and Qualified Census Tracts for Section 42 of the Internal Revenue Code
of 1986
[[Continued from page 76550]]
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[FR Doc. 02-31081 Filed 12-11-02; 8:45 am]
BILLING CODE 4210-62-C