§ 4161 TITLE 25—INDIANS Page 722

SUBCHAPTER IV—COMPLIANCE, AUDITS,

AND REPORTS

§ 4161. Remedies for noncompliance

(a) Actions by Secretary affecting grant amounts

Except as provided in subsection (b) of this

section, if the Secretary finds after reasonable

notice and opportunity for hearing that a recipient of assistance under this chapter has failed to

comply substantially with any provision of this

chapter, the Secretary shall—

(1) terminate payments under this chapter

to the recipient;

(2) reduce payments under this chapter to

the recipient by an amount equal to the

amount of such payments that were not expended in accordance with this chapter;

(3) limit the availability of payments under

this chapter to programs, projects, or activities not affected by such failure to comply; or

(4) in the case of noncompliance described in

section 4162(b) of this title, provide a replacement tribally designated housing entity for

the recipient, under section 4162 of this title.

If the Secretary takes an action under paragraph (1), (2), or (3), the Secretary shall continue

such action until the Secretary determines that

the failure to comply has ceased.

(b) Noncompliance because of technical incapacity

If the Secretary makes a finding under subsection (a) of this section, but determines that

the failure to comply substantially with the provisions of this chapter—

(1) is not a pattern or practice of activities

constituting willful noncompliance, and

(2) is a result of the limited capability or capacity of the recipient,

the Secretary may provide technical assistance

for the recipient (directly or indirectly) that is

designed to increase the capability and capacity

of the recipient to administer assistance provided under this chapter in compliance with the

requirements under this chapter.

(c) Referral for civil action

(1) Authority

In lieu of, or in addition to, any action authorized by subsection (a) of this section, if

the Secretary has reason to believe that a recipient has failed to comply substantially with

any provision of this chapter, the Secretary

may refer the matter to the Attorney General

of the United States with a recommendation

that an appropriate civil action be instituted.

(2) Civil action

Upon such a referral, the Attorney General

may bring a civil action in any United States

district court having venue thereof for such

relief as may be appropriate, including an action to recover the amount of the assistance

furnished under this chapter that was not expended in accordance with it, or for mandatory or injunctive relief.

(d) Review

(1) In general

Any recipient who receives notice under subsection (a) of this section of the termination,

reduction, or limitation of payments under

this chapter—

(A) may, not later than 60 days after receiving such notice, file with the United

States Court of Appeals for the circuit in

which such State is located, or in the United

States Court of Appeals for the District of

Columbia, a petition for review of the action

of the Secretary; and

(B) upon the filing of any petition under

subparagraph (A), shall forthwith transmit

copies of the petition to the Secretary and

the Attorney General of the United States,

who shall represent the Secretary in the litigation.

(2) Procedure

The Secretary shall file in the court a record

of the proceeding on which the Secretary

based the action, as provided in section 2112 of

title 28. No objection to the action of the Secretary shall be considered by the court unless

such objection has been urged before the Secretary.

(3) Disposition

(A) Court proceedings

The court shall have jurisdiction to affirm

or modify the action of the Secretary or to

set it aside in whole or in part. The findings

of fact by the Secretary, if supported by substantial evidence on the record considered as

a whole, shall be conclusive. The court may

order additional evidence to be taken by the

Secretary, and to be made part of the record.

(B) Secretary

The Secretary—

(i) may modify the findings of fact of the

Secretary, or make new findings, by reason of the new evidence so taken and filed

with the court; and

(ii) shall file—

(I) such modified or new findings,

which findings with respect to questions

of fact shall be conclusive if supported

by substantial evidence on the record

considered as a whole; and

(II) the recommendation of the Secretary, if any, for the modification or

setting aside of the original action of the

Secretary.

(4) Finality

Upon the filing of the record with the court,

the jurisdiction of the court shall be exclusive

and its judgment shall be final, except that

such judgment shall be subject to review by

the Supreme Court of the United States upon

writ of certiorari or certification as provided

in section 1254 of title 28.

(Pub. L. 104–330, title IV, §401, Oct. 26, 1996, 110

Stat. 4037.)

REFERENCES IN TEXT

This chapter, referred to in text, was in the original

‘‘this Act’’, meaning Pub. L. 104–330, Oct. 26, 1996, 110

Stat. 4016, known as the Native American Housing Assistance and Self-Determination Act of 1996. For complete classification of this Act to the Code, see Short

Title note set out under section 4101 of this title and

Tables.
Page 723 TITLE 25—INDIANS § 4164

EFFECTIVE DATE

Section effective Oct. 1, 1997, except as otherwise expressly provided, see section 107 of Pub. L. 104–330, set

out as a note under section 4101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 4139 of this title.

§ 4162. Replacement of recipient

(a) Authority

As a condition of the Secretary making a

grant under this chapter on behalf of an Indian

tribe, the tribe shall agree that, notwithstanding any other provision of law, the Secretary

may, only in the circumstances set forth in subsection (b) of this section, require that a replacement tribally designated housing entity

serve as the recipient for the tribe, in accordance with subsection (c) of this section.

(b) Conditions of removal

The Secretary may require such replacement

tribally designated housing entity for a tribe

only upon a determination by the Secretary on

the record after opportunity for a hearing that

the recipient for the tribe has engaged in a pattern or practice of activities that constitutes

substantial or willful noncompliance with the

requirements under this chapter.

(c) Choice and term of replacement

If the Secretary requires that a replacement

tribally designated housing entity serve as the

recipient for a tribe (or tribes)—

(1) the replacement entity shall be an entity

mutually agreed upon by the Secretary and

the tribe (or tribes) for which the recipient

was authorized to act, except that if no such

entity is agreed upon before the expiration of

the 60-day period beginning upon the date that

the Secretary makes the determination under

subsection (b) of this section, the Secretary

shall act as the replacement entity until

agreement is reached upon a replacement entity; and

(2) the replacement entity (or the Secretary,

as provided in paragraph (1)) shall act as the

tribally designated housing entity for the

tribe (or tribes) for a period that expires

upon—

(A) a date certain, which shall be specified

by the Secretary upon making the determination under subsection (b) of this section; or

(B) the occurrence of specific conditions,

which conditions shall be specified in written notice provided by the Secretary to the

tribe upon making the determination under

subsection (b) of this section.

(Pub. L. 104–330, title IV, §402, Oct. 26, 1996, 110

Stat. 4039.)

EFFECTIVE DATE

Section effective Oct. 1, 1997, except as otherwise expressly provided, see section 107 of Pub. L. 104–330, set

out as a note under section 4101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 4161 of this title.

§ 4163. Monitoring of compliance

(a) Enforceable agreements

Each recipient, through binding contractual

agreements with owners and otherwise, shall ensure long-term compliance with the provisions

of this chapter. Such measures shall provide for

(1) enforcement of the provisions of this chapter

by the grant beneficiary or by recipients and

other intended beneficiaries, and (2) remedies

for the breach of such provisions.

(b) Periodic monitoring

Not less frequently than annually, each recipient shall review the activities conducted and

housing assisted under this chapter to assess

compliance with the requirements of this chapter. Such review shall include onsite inspection

of housing to determine compliance with applicable requirements. The results of each review

shall be included in the performance report of

the recipient submitted to the Secretary under

section 4164 of this title and made available to

the public.

(c) Performance measures

The Secretary shall establish such performance measures as may be necessary to assess

compliance with the requirements of this chapter.

(Pub. L. 104–330, title IV, §403, Oct. 26, 1996, 110

Stat. 4039.)

EFFECTIVE DATE

Section effective Oct. 1, 1997, except as otherwise expressly provided, see section 107 of Pub. L. 104–330, set

out as a note under section 4101 of this title.

§ 4164. Performance reports

(a) Requirement

For each fiscal year, each recipient shall—

(1) review the progress it has made during

such fiscal year in carrying out the Indian

housing plan (or plans) for the Indian tribes

for which it administers grant amounts; and

(2) submit a report to the Secretary (in a

form acceptable to the Secretary) describing

the conclusions of the review.

(b) Content

Each report under this section for a fiscal year

shall—

(1) describe the use of grant amounts provided to the recipient for such fiscal year;

(2) assess the relationship of such use to the

goals identified in the Indian housing plan of

the grant beneficiary;

(3) indicate the programmatic accomplishments of the recipient; and

(4) describe the manner in which the recipient would change its programs as a result of

its experiences.

(c) Submission

The Secretary shall establish dates for submission of reports under this section, and review

such reports and make such recommendations

as the Secretary considers appropriate to carry

out the purposes of this chapter.

(d) Public availability

A recipient preparing a report under this section shall make the report publicly available to