69730 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Notices 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

[Docket No. FR–4889–N–03] 

Statutorily Mandated Designation of 

Difficult Development Areas for 

Section 42 of the Internal Revenue 

Code of 1986

AGENCY: Office of the Secretary, HUD.

ACTION: Notice.

SUMMARY: This document designates 

‘‘Difficult Development Areas’’ for 

purposes of the Low-Income Housing 

Tax Credit (LIHTC) under section 42 of 

the Internal Revenue Code of 1986 (the 

Code) (26 U.S.C. 42). The United States 

Department of Housing and Urban 

Development (HUD) makes new 

Difficult Development Area 

designations annually. The designations 

of ‘‘Qualified Census Tracts’’ under 

section 42 of the Internal Revenue Code 

published December 12, 2002, as 

supplemented on December 19, 2003, 

remain in effect.

FOR FURTHER INFORMATION CONTACT: For 

questions on how areas are designated 

and on geographic definitions: Alastair 

McFarlane, Senior Economist, Economic 

Development and Public Finance 

Division, Office of Policy Development 

and Research, Department of Housing 

and Urban Development, 451 Seventh 

Street, SW., Washington, DC 20410–

6000, telephone (202) 708–2770, e-mail 

Alastair_McFarlane@hud.gov. For 

specific legal questions pertaining to 

Section 42: Branch 5, Office of the 

Associate Chief Counsel, Passthroughs & 

Special Industries, Internal Revenue 

Service, 1111 Constitution Avenue, 

NW., Washington, DC 20224, telephone 

(202) 622–3040, fax (202) 622–4524. For 

questions about the ‘‘HUB Zones’’ 

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) 205–8885, fax 

(202) 205–7167, e-mail 

hubzone@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 

Qualified Census Tracts are available 

electronically on the Internet (World 

Wide Web) at http://www.huduser.org/

datasets/qct.html.

SUPPLEMENTARY INFORMATION:

This Document 

This notice designates Difficult 

Development Areas 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 

Difficult Development Areas in this 

notice are based on final fiscal year 2004 

Fair Market Rents (FMRs), 2004 income 

limits, and 2000 Census population 

counts as explained below. The 

designations of Qualified Census Tracts 

under Section 42 of the Internal 

Revenue Code published December 12, 

2002 (67 FR 76451), as supplemented on 

December 19, 2003 (68 FR 70982), 

remain in effect. 

2000 Census 

Data from the 2000 Census on total 

population of metropolitan areas and 

nonmetropolitan areas are used in the 

designation of Difficult Development 

Areas. The Office of Management and 

Budget (OMB) published new 

metropolitan area definitions 

incorporating 2000 Census data in OMB 

Bulletin No. 03–04 on June 6, 2003, as 

updated in OMB Bulletin No. 04–03 on 

February 18, 2004. The FY2004 FMRs 

and 2004 income limits used to 

designate Difficult Development Areas 

are based on the Metropolitan Statistical 

Area (MSA) and Primary Metropolitan 

Statistical Area (PMSA) definitions 

established by OMB in OMB Bulletin 

No. 99–04 on June 30, 1999. Therefore, 

for the purposes of designating Difficult 

Development Areas, ‘‘metropolitan 

areas’’ will continue to be defined 

according to the MSA/PMSA definitions 

established in OMB Bulletin No. 99–04 

on June 30, 1999, until further notice. 

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 Code, 

including the LIHTC found at Section 

42 of the Code. The Secretary of HUD 

is required to designate Difficult 

Development Areas and Qualified 

Census Tracts by Section 42(d)(5)(C) of 

the Code. In order to assist in 

understanding HUD’s mandated 

designation of Difficult Development 

Areas and Qualified Census Tracts for 

use in administering Section 42, 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, as 

HUD has authority to interpret or 

administer the Code only in instances 

where it receives explicit delegation. 

Summary of Low-Income Housing Tax 

Credit 

The LIHTC is a tax incentive intended 

to increase the availability of lowincome 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 allowed a 

credit ceiling based on a statutory 

formula indicated at Section 42(h)(3). 

States may carry forward unallocated 

credits derived from the credit ceiling 

for one year; however, to the extent 

these 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 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 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 

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 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 40 percent of the 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 lowincome character of the building for at 

least an additional 15 years. 

The LIHTC reduces income tax 

liability dollar for dollar. It is taken 

annually for a term of ten years and is 

intended to yield a present value of 

either (1) 70 percent of the ‘‘qualified 

basis’’ for new construction or 

substantial rehabilitation expenditures 

that are not federally subsidized (i.e., 

financed with tax-exempt bonds or 

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Notices 69731

below-market federal loans), 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 adjusted 

monthly for projects placed in service 

after 1987 under procedures specified in 

Section 42. 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 upon the individual’s marginal 

tax rate). Individuals cannot use the 

credits against the alternative minimum 

tax. Corporations, other than S or 

personal service corporations, can use 

the credits against ordinary income tax. 

They cannot use the credits against the 

alternative minimum tax. These 

corporations can also deduct losses from 

the project. 

The qualified basis represents the 

product of the building ‘‘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 lowincome 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 

Difficult Development Areas or 

designated Qualified Census Tracts, 

eligible basis can be increased up to 130 

percent of 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. 

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 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. 

Explanation of HUD Designation 

Methodology 

A. Difficult Development Areas 

In developing the list of Difficult 

Development Areas, HUD compared 

housing costs with incomes. HUD used 

2000 Census population data and the 

metropolitan area (MSA/PMSA) 

definitions as published in OMB 

Bulletin No. 99–04 on June 30, 1999. In 

keeping with past practice of basing the 

coming year’s Difficult Development 

Area designations on data from the 

preceding year, the basis for these 

comparisons was the 2004 HUD income 

limits for Very Low-Income households 

(Very Low Income Limits, or VLILs) and 

final FY2004 FMRs used for the Section 

8 Housing Choice Voucher program. 

The procedure used in making the 

Difficult Development Area calculations 

follows: 

1. For each MSA/PMSA and each 

nonmetropolitan area, a ratio was 

calculated. This calculation used the 

final FY2004 two-bedroom FMR and the 

2004 four-person VLIL. 

a. The numerator of the ratio was the 

area’s final FY2004 FMR. In general, the 

FMR is based on the 40th percentile rent 

paid by recent movers for a twobedroom 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 nonmetropolitan areas. 

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 nonmetropolitan areas, 

respectively. 

B. Application of Population Caps to 

Difficult Development Area 

Determinations 

In identifying Difficult Development 

Areas, HUD applied caps, or limitations, 

as noted above. The cumulative 

population of metropolitan Difficult 

Development Areas cannot exceed 20 

percent of the cumulative population of 

all metropolitan areas and the 

cumulative population of 

nonmetropolitan Difficult Development 

Areas cannot exceed 20 percent of the 

cumulative population of all 

nonmetropolitan 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 the 

procedure. In general, HUD stops 

selecting areas when it is impossible to 

choose another area without exceeding 

the applicable cap. The only exceptions 

to this policy are when the next eligible 

excluded area contains either a large 

absolute population or a large 

percentage of the total population, or 

the next excluded area’s ranking ratio as 

described above was identical (to four 

decimal places) to the last area selected, 

and its inclusion resulted in only a 

minor overrun of the cap. Thus, for both 

the designated metropolitan and 

nonmetropolitan Difficult Development 

Areas, there may be minimal overruns 

of the cap. HUD believes the designation 

of these additional areas is consistent 

with the intent of the legislation. 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. 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. 

C. 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 

69732 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Notices 

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, Illinois: DeKalb, Grundy, 

and Kendall Counties.

Cincinnati-Hamilton, Ohio-KentuckyIndiana: Brown County, Ohio; Gallatin, 

Grant, and Pendleton Counties, 

Kentucky; and Ohio County, Indiana. 

Dallas, Texas: Henderson County. 

Flagstaff, Arizona-Utah: Kane County, 

Utah. 

New Orleans, Louisiana: St. James 

Parish. 

Washington, DC-Maryland-VirginiaWest Virginia: Clarke, Culpeper, King 

George, and Warren Counties, Virginia; 

and Berkely and Jefferson Counties, 

West Virginia. 

Affected MSAs/PMSAs are assigned 

the indicator ‘‘(part)’’ in the list of 

Metropolitan Difficult Development 

Areas. Any of the excluded counties 

designated as Difficult Development 

Areas separately from their metropolitan 

areas are designated by the county 

name. 

In the New England states 

(Connecticut, Maine, Massachusetts, 

New Hampshire, Rhode Island, and 

Vermont), OMB defined MSAs/PMSAs 

according to county subdivisions or 

minor civil divisions (MCDs), rather 

than county boundaries. Thus, when a 

New England county is designated as a 

Nonmetropolitan Difficult Development 

Area, only that part of the county (the 

group of MCDs) not included in any 

MSA/PMSA is the Nonmetropolitan 

Difficult Development Area. Affected 

counties are assigned the indicator 

‘‘(part)’’ in the list of Nonmetropolitan 

Difficult Development Areas. 

For the convenience of readers of this 

notice, the geographical definitions of 

designated Metropolitan Difficult 

Development Areas and the MCDs 

included in Nonmetropolitan Difficult 

Development Areas in the New England 

states are included in the list of Difficult 

Development Areas. 

Certain nonmetropolitan county 

equivalent areas in Alaska for which 

FMRs and VLILs are calculated and thus 

form the basis of Difficult Development 

Area determinations are no longer 

recognized as geographic entities by the 

Bureau of the Census. Therefore, no 

2000 Census population counts are 

produced for these areas. HUD 

estimated 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 

former Skagway-Yakutat-Angoon 

Census Area (680) and the ValdezCordova Census Area (128). The 

populations of Yakutat City and 

Borough Census Blocks located east of 

141° west longitude were allocated to 

the Skagway-Yakutat-Angoon Census 

Area. The populations of Yakutat City 

and Borough Census Blocks located 

west of 141° west 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. 

Effective Date 

The 2005 lists of Difficult 

Development Areas are effective (1) for 

allocations of credit after December 31, 

2004; or (2) for purposes of Section 

42(h)(4)(B) of the Code, if the bonds are 

issued and the building is placed in 

service after December 31, 2004. If an 

area is not on a subsequent list of 

Difficult Development Areas, the 2005 

lists are effective for the area if (1) the 

allocation of credit to an applicant is 

made no later than the end of the 365-

day period after the submission to the 

credit-allocating agency of a complete 

application by the applicant, and the 

submission is made before the effective 

date of the subsequent lists; or (2) for 

purposes of Section 42(h)(4)(B) of the 

Code, the bonds are issued or the 

building is placed in service no later 

than the end of the 365-day period after 

the applicant submits a complete 

application to the bond-issuing agency, 

and 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 as certified in writing by the 

credit-allocating agency 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. 

The designations of ‘‘Qualified 

Census Tracts’’ under Section 42 of the 

Internal Revenue Code published 

December 12, 2002 (67 FR 76451) as 

supplemented on December 19, 2003 

(68 FR 70982), remain in effect. The 

above language regarding calendar year 

2005 and subsequent designations of 

Difficult Development Areas also 

applies to the designations of Qualified 

Census Tracts published December 12, 

2002 (67 FR 76451), as supplemented on 

December 19, 2003 (68 FR 70982), and 

subsequent designations of Qualified 

Census Tracts. 

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 Difficult 

Development Area status. The examples 

are equally applicable to future 

Qualified Census Tract designations. 

(Case A): Project ‘‘A’’ is located in a 

2005 Difficult Development Area that is 

not a designated Difficult Development 

Area in 2006. A complete application 

for tax credits for Project ‘‘A’’ is filed 

with the allocating agency November 

15, 2005, which the credit-allocating 

agency certified in writing as complete. 

Credits are allocated to project ‘‘A’’ on 

October 30, 2006. Project ‘‘A’’ is eligible 

for the increase in basis accorded a 

project in a 2005 Difficult Development 

area because the application was filed 

before January 1, 2006 (the assumed 

effective date for the 2006 Difficult 

Development Area lists), and tax credits 

were allocated no later than the end of 

the 365-day period after the filing of the 

complete application for an allocation of 

tax credits. 

(Case B): Project ‘‘B’’ is located in a 

2005 Difficult Development Area that is 

not a designated Difficult Development 

Area in 2006. A complete application 

for tax credits for Project ‘‘B’’ is filed 

with the allocating agency December 1, 

2005, which the credit-allocating agency 

certified in writing as complete. Credits 

are allocated to project ‘‘B’’ on March 

30, 2007. Project ‘‘B’’ is not eligible for 

the increase in basis accorded a project 

in a 2005 Difficult Development area 

because, although the application for an 

allocation of tax credits was filed before

January 1, 2006 (the assumed effective 

date of the 2006 Difficult Development 

Area lists), the tax credits were allocated 

later than the end of the 365-day period 

after the filing of the complete 

application. 

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Notices 69733

(Case C): Project ‘‘C’’ is located in a 

2005 Difficult Development Area that 

was not a Difficult Development Area in 

2004. Project ‘‘C’’ was placed in service 

November 15, 2004. A complete 

application for tax-exempt bond 

financing for Project ‘‘C’’ is filed with 

the bond-issuing agency on January 15, 

2005, which the bond-issuing agency 

certified in writing as complete. The 

bonds that will support the permanent 

financing of Project ‘‘C’’ are issued 

September 30, 2005. Project ‘‘C’’ is not

eligible for the increase in basis 

otherwise accorded a project in a 2005 

Difficult Development Area because the 

project was placed in service before

January 1, 2005. 

(Case D): Project ‘‘D’’ is located in an 

area that is a Difficult Development 

Area in 2005, but is not a Difficult 

Development Area in 2006. A complete 

application for tax-exempt bond 

financing for Project ‘‘D’’ is filed with 

the bond-issuing agency on October 30, 

2005, which the bond-issuing agency 

certified in writing as complete. Bonds 

are issued for Project ‘‘D’’ on April 30, 

2006, but Project ‘‘D’’ is not placed in 

service until January 30, 2007. Project 

‘‘D’’ is eligible for the increase in basis 

available to projects located in 2005 

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 April 30, 2006, within the 365-

day period after a complete application 

for tax-exempt bond financing was filed, 

and the application was filed during a 

time when the location of Project ‘‘D’’

was in a Difficult Development Area. 

Findings and Certifications 

Environmental Impact 

In accordance with 40 CFR 1508.4 of 

the regulations of the Council on 

Environmental Quality and 24 CFR 

50.19(c)(6) of HUD’s regulations, the 

policies and procedures contained in 

this notice provide for the establishment 

of fiscal requirements or procedures that 

do not constitute a development 

decision affecting 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.

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 ‘‘Difficult 

Development Areas’’ and ‘‘Qualified 

Census Tracts’’ as required under 

Section 42 of the Internal Revenue 

Code, as amended, for the use by 

political subdivisions of the states in 

allocating the Low-Income Housing Tax 

Credit. This notice also details the 

technical methodology used in making 

such designations. As a result, this 

notice is not subject to review under the 

order.

Dated: November 23, 2004. 

Alphonso Jackson, 

Secretary.

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