
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC3545]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
         CHAPTER 44--DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
 
Sec. 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.

(Pub. L. 101-235, title I, Sec. 102, Dec. 15, 1989, 103 Stat. 1990.)

                          Codification

    Section was enacted as part of the Department of Housing and Urban 
Development Reform Act of 1989, and not as part of the Department of 
Housing and Urban Development Act which comprises this chapter.


                         Subsidy Layering Review

    Pub. L. 102-550, title IX, Sec. 911, Oct. 28, 1992, 106 Stat. 3875, 
as amended by Pub. L. 103-233, title III, Sec. 308, Apr. 11, 1994, 108 
Stat. 379, provided that:
    ``(a) Certification of Subsidy Layering Compliance.--The 
requirements of section 102(d) of the Department of Housing and Urban 
Development Reform Act of 1989 [42 U.S.C. 3545(d)] may be satisfied in 
connection with a project receiving assistance under a program that is 
within the jurisdiction of the Department of Housing and Urban 
Development and under section 42 of the Internal Revenue Code of 1986 
[26 U.S.C. 42] by a certification by a housing credit agency to the 
Secretary, submitted in accordance with guidelines established by the 
Secretary, that the combination of assistance within the jurisdiction of 
the Secretary and other government assistance provided in connection 
with a property for which assistance is to be provided within the 
jurisdiction of the Department of Housing and Urban Development and 
under section 42 of the Internal Revenue Code of 1986 shall not be any 
greater than is necessary to provide affordable housing.
    ``(b) In Particular.--The guidelines established pursuant to 
subsection (a) shall--
        ``(1) require that the amount of equity capital contributed by 
    investors to a project partnership is not less than the amount 
    generally contributed by investors in current market conditions, as 
    determined by the housing credit agency; and
        ``(2) require that project costs, including developer fees, are 
    within a reasonable range, taking into account project size, project 
    characteristics, project location and project risk factors, as 
    determined by the housing credit agency.
    ``(c) Revocation by Secretary.--If the Secretary determines that a 
housing credit agency has failed to comply with the guidelines 
established under subsection (a), the Secretary--
        ``(1) may inform the housing credit agency that the agency may 
    no longer submit certification of subsidy layering compliance under 
    this section; and
        ``(2) shall carry out section 102(d) of the Department of 
    Housing and Urban Development Reform Act of 1989 [42 U.S.C. 3545(d)] 
    relating to affected projects allocated a low-income housing tax 
    credit pursuant to section 42 of the Internal Revenue Code of 1986 
    [26 U.S.C. 42].
    ``(d) Applicability.--Section 102(d) of the Department of Housing 
and Urban Development Reform Act of 1989 (42 U.S.C. 3545(d)) shall apply 
only to projects for which an application for assistance or insurance 
was filed after the date of enactment of the Housing and Urban 
Development Reform Act [probably should be Department of Housing and 
Urban Development Reform Act of 1989, enacted Dec. 15, 1989].''

                  Section Referred to in Other Sections

    This section is referred to in sections 1439, 1485, 4852d, 12742, 
12774 of this title; title 25 section 4136.
