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U.S. Code as of:
01/19/04
Section 3545. HUD accountability
(a) Notice regarding assistance
(1) Publication of notice of availability
The Secretary shall publish in the Federal Register notice of
the availability of any assistance under any program or
discretionary fund administered by the Secretary.
(2) Publication of application procedures
The Secretary shall publish in the Federal Register a
description of the form and procedures by which application for
the assistance may be made, and any deadlines relating to the
award or allocation of the assistance. Such description shall be
designed to help eligible applicants to apply for such
assistance.
(3) Publication of selection criteria
Not less than 30 days before any deadline by which applications
or requests for assistance under any program or discretionary
fund administered by the Secretary must be submitted, the
Secretary shall publish in the Federal Register the criteria by
which selection for the assistance will be made. Subject to
section 1439 of this title, such criteria shall include any
objective measures of housing need, project merit, or efficient
use of resources that the Secretary determines are appropriate
and consistent with the statute under which the assistance is
made available.
(4) Documentation of decisions
(A) The Secretary shall award or allocate assistance only in
response to a written application in a form approved in advance
by the Secretary, except where other award or allocation
procedures are specified in statute.
(B) The Secretary shall ensure that documentation and other
information regarding each application for assistance is
sufficient to indicate the basis on which any award or allocation
was made or denied. The preceding sentence shall apply to -
(i) any application for an award or allocation of assistance
made by the Secretary to a State, unit of general local
government, or other recipient of assistance, and
(ii) any application for a subsequent award or allocation of
such assistance by such State, unit of general local government
or other recipient.
(C)(i) The Secretary shall notify the public of all funding
decisions made by the Department. The Secretary shall require any
State or unit of general local government to notify the public of
the award or allocation of such funding to subsequent recipients.
The notification shall include the following elements for each
funding decision:
(I) the name and address of each funding recipient;
(II) the name or other means of identifying the project,
activity, or undertaking for each funding recipient;
(III) the dollar amount of the funding for each project,
activity, or undertaking;
(IV) the citation to the statutory, regulatory, or other
criteria under which the funding decision was made; and
(V) such additional information as the Secretary deems
appropriate for a clear and full understanding of the funding
decision.
(ii) The notification referred to in clause (i) of this
subsection shall be published as a Notice in the Federal Register
at least quarterly.
(iii) For purposes of this subparagraph, the term "funding
decision" means the decision of the Secretary to make available
grants, loans, or any other form of financial assistance to an
individual or to an entity, including (but not limited to) a
State or local government or agency thereof (including a public
housing agency), an Indian tribe, or a nonprofit organization,
under any program administered by the Department that provides,
by statute, regulation, or otherwise, for the competitive
distribution of financial assistance.
(D) The Secretary shall publish a notice in the Federal
Register at least annually informing the public of the allocation
of assistance under section 1439(d)(1)(A) of this title.
(E) The Secretary shall ensure that each application and all
related documentation and other information referred to in
subparagraph (B), including each letter of support, is readily
available for public inspection for a period of not less than 5
years, beginning not less than 30 days following the date on
which the award or allocation is made.
(5) Emergency exception
The Secretary may waive the requirements of paragraphs (1),
(2), and (3) if the Secretary determines that the waiver is
required for appropriate response to an emergency. Not less than
30 days after providing a waiver under the preceding sentence,
the Secretary shall publish in the Federal Register the
Secretary's reasons for so doing.
(b) Disclosures by applicants
The Secretary shall require the disclosure of information with
respect to any application for assistance within the jurisdiction
of the Department for a project application submitted to the
Secretary or to any State or unit of general local government by
any applicant who has received or, in the determination of the
Secretary, can reasonably be expected to receive assistance within
the jurisdiction of the Department in excess of $200,000 in the
aggregate during any fiscal year or such lower amount as the
Secretary may establish by regulation. Such information shall
include the following:
(1) Other government assistance
Information regarding any related assistance from the Federal
Government, a State, or a unit of general local government, or
any agency or instrumentality thereof, that is expected to be
made available with respect to the project or activities for
which the applicant is seeking assistance. Such related
assistance shall include but not be limited to any loan, grant,
guarantee, insurance, payment, rebate, subsidy, credit, tax
benefit, or any other form of direct or indirect assistance.
(2) Interested parties
The name and pecuniary interest of any person who has a
pecuniary interest in the project or activities for which the
applicant is seeking assistance. Persons with a pecuniary
interest in the project or activity shall include but not be
limited to any developers, contractors, and consultants involved
in the application for assistance or the planning, development,
or implementation of the project or activity. For purposes of
this paragraph, residency of an individual in housing for which
assistance is being sought shall not, by itself, be considered a
pecuniary interest.
(3) Expected sources and uses
A report satisfactory to the Secretary of the expected sources
and uses of funds that are to be made available for the project
or activity.
(c) Updating of disclosure
During the period when an application is pending or assistance is
being provided, the applicant shall update the disclosure required
under the previous subsection within 30 days of any substantial
change.
(d) Limitation of assistance
The Secretary shall certify that assistance within the
jurisdiction of the Department to any housing project shall not be
more than is necessary to provide affordable housing after taking
account of assistance described in subsection (b)(1) of this
section. The Secretary shall adjust the amount of assistance
awarded or allocated to an applicant to compensate in whole or in
part, as the Secretary determines to be appropriate, for any
changes reported under subsection (c) of this section.
(e) Administrative remedies
If the Secretary receives or obtains information providing a
reasonable basis to believe that a violation of subsection (b) or
(c) of this section has occurred, the Secretary shall -
(1) in the case of a selection that has not been made,
determine whether to terminate the selection process or take
other appropriate actions; and
(2) in the case of a selection that has been made, determine
whether to -
(A) void or rescind the selection, subject to review and
determination on the record after opportunity for a hearing;
(B) impose sanctions upon the violator, including debarment,
subject to review and determination on the record after
opportunity for a hearing;
(C) recapture any funds that have been disbursed;
(D) permit the violating applicant selected to continue to
participate in the program; or
(E) take any other actions that the Secretary considers
appropriate.
The Secretary shall publish in the Federal Register a descriptive
statement of each determination made and action taken under this
subsection.
(f) Civil money penalties
(1) In general
Whenever any person knowingly and materially violates any
provision of subsection (b) or (c) of this section, the Secretary
may impose a civil money penalty on that person in accordance
with the provisions of this section. This penalty shall be in
addition to any other available civil remedy or any available
criminal penalty, and may be imposed whether or not the Secretary
imposes other administrative sanctions.
(2) Amount of penalty
The amount of the penalty, as determined by the Secretary, may
not exceed $10,000 for each violation.
(g) Agency procedures
(1) In general
The Secretary shall establish standards and procedures
governing the imposition of civil money penalties under
subsection (f) of this section. These standards and procedures -
(A) shall provide for the Secretary to make the determination
to impose the penalty or to use an administrative entity to
make the determination;
(B) shall provide for the imposition of a penalty only after
the person has been given an opportunity for a hearing on the
record; and
(C) may provide for review by the Secretary of any
determination or order, or interlocutory ruling, arising from a
hearing.
If no hearing is requested within 15 days of receipt of the
notice of opportunity for hearing, the imposition of the penalty
shall constitute a final and unappealable determination. If the
Secretary reviews the determination or order, the Secretary may
affirm, modify, or reverse that determination or order. If the
Secretary does not review the determination or order, the
determination or order shall be final.
(2) Factors in determining amount of penalty
In determining the amount of a penalty under subsection (f) of
this section, consideration shall be given to such factors as the
gravity of the offense, ability to pay the penalty, injury to the
public, benefits received, deterrence of future violations, and
such other factors as the Secretary may determine in regulations
to be appropriate.
(3) Reviewability of imposition of a penalty
The Secretary's determination or order imposing a penalty under
subsection (f) of this section shall not be subject to review,
except as provided in subsection (h) of this section.
(h) Judicial review of agency determination
(1) In general
After exhausting all administrative remedies established by the
Secretary under subsection (g)(1) of this section, a person
against whom the Secretary has imposed a civil money penalty
under subsection (f) of this section may obtain a review of the
penalty and such ancillary issues as may be addressed in the
notice of determination to impose a penalty under subsection
(g)(1)(A) of this section in the appropriate court of appeals of
the United States, by filing in such court, within 20 days after
the entry of such order or determination, a written petition
praying that the order or determination of the Secretary be
modified or be set aside in whole or in part.
(2) Objections not raised in hearing
The court shall not consider any objection that was not raised
in the hearing conducted pursuant to subsection (g)(1) of this
section unless a demonstration is made of extraordinary
circumstances causing the failure to raise the objection. If any
party demonstrates to the satisfaction of the court that
additional evidence not presented at the hearing is material and
that there were reasonable grounds for the failure to present
such evidence at the hearing, the court shall remand the matter
to the Secretary for consideration of such additional evidence.
(3) Scope of review
The decisions, findings, and determinations of the Secretary
shall be reviewed pursuant to section 706 of title 5.
(4) Order to pay penalty
Notwithstanding any other provision of law, in any such review,
the court shall have the power to order payment of the penalty
imposed by the Secretary.
(i) Action to collect penalty
If any person fails to comply with the determination or order of
the Secretary imposing a civil money penalty under subsection (f)
of this section, after the determination or order is no longer
subject to review as provided by subsections (g)(1) and (h) of this
section, the Secretary may request the Attorney General of the
United States to bring an action in an appropriate United States
district court to obtain a monetary judgment against the person and
such other relief as may be available. The monetary judgment may,
in the court's discretion, include the attorneys' fees and other
expenses incurred by the United States in connection with the
action. In an action under this subsection, the validity and
appropriateness of the Secretary's determination or order imposing
the penalty shall not be subject to review.
(j) Settlement by Secretary
The Secretary may compromise, modify, or remit any civil money
penalty which may be, or has been, imposed under this section.
(k) Regulations
The Secretary shall issue such regulations as the Secretary deems
appropriate to implement this section.
(l) Deposit of penalties
The Secretary shall deposit all civil money penalties collected
under this section into miscellaneous receipts of the Treasury.
(m) Definitions
For the purpose of this section -
(1) The term "Department" means the Department of Housing and
Urban Development.
(2) The term "Secretary" means the Secretary of Housing and
Urban Development.
(3) The term "person" means an individual (including a
consultant, lobbyist, or lawyer), corporation, company,
association, authority, firm, partnership, society, State, local
government, or any other organization or group of people.
(4) The term "assistance within the jurisdiction of the
Department" includes any contract, grant, loan, cooperative
agreement, or other form of assistance, including the insurance
or guarantee of a loan, mortgage, or pool of mortgages.
(5) The term "knowingly" means having actual knowledge of or
acting with deliberate ignorance of or reckless disregard for the
prohibitions under this section.
(n) Effective date
This section shall take effect on the date specified in
regulations implementing this section that are issued by the
Secretary after notice and public comment.
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