25 USC CHAPTER 43, SUBCHAPTER VIII: HOUSING ASSISTANCE FOR NATIVE HAWAIIANS

From Title 25—INDIANSCHAPTER 43—NATIVE AMERICAN HOUSING ASSISTANCE AND SELF-DETERMINATION

SUBCHAPTER VIII—HOUSING ASSISTANCE FOR NATIVE HAWAIIANS

§4221. Definitions

In this subchapter:

(1) Department of Hawaiian Home Lands; Department

The term "Department of Hawaiian Home Lands" or "Department" means the agency or department of the government of the State of Hawaii that is responsible for the administration of the Hawaiian Homes Commission Act, 1920 (42 Stat. 108 et seq.).

(2) Director

The term "Director" means the Director of the Department of Hawaiian Home Lands.

(3) Elderly families; near-elderly families

(A) In general

The term "elderly family" or "near-elderly family" means a family whose head (or his or her spouse), or whose sole member, is—

(i) for an elderly family, an elderly person; or

(ii) for a near-elderly family, a near-elderly person.

(B) Certain families included

The term "elderly family" or "near-elderly family" includes—

(i) two or more elderly persons or near-elderly persons, as the case may be, living together; and

(ii) one or more persons described in clause (i) living with one or more persons determined under the housing plan to be essential to their care or well-being.

(4) Hawaiian Home Lands

The term "Hawaiian Home Lands" means lands that—

(A) have the status as Hawaiian home lands under section 204 of the Hawaiian Homes Commission Act, 1920 (42 Stat. 110); or

(B) are acquired pursuant to that Act.

(5) Housing area

The term "housing area" means an area of Hawaiian Home Lands with respect to which the Department of Hawaiian Home Lands is authorized to provide assistance for affordable housing under this chapter.

(6) Housing entity

The term "housing entity" means the Department of Hawaiian Home Lands.

(7) Housing plan

The term "housing plan" means a plan developed by the Department of Hawaiian Home Lands.

(8) Median income

The term "median income" means, with respect to an area that is a Hawaiian housing area, the greater of—

(A) the median income for the Hawaiian housing area, which shall be determined by the Secretary; or

(B) the median income for the State of Hawaii.

(9) Native Hawaiian

The term "Native Hawaiian" means any individual who is—

(A) a citizen of the United States; and

(B) a descendant of the aboriginal people, who, prior to 1778, occupied and exercised sovereignty in the area that currently constitutes the State of Hawaii, as evidenced by—

(i) genealogical records;

(ii) verification by kupuna (elders) or kama‘aina (long-term community residents); or

(iii) birth records of the State of Hawaii.

(Pub. L. 104–330, title VIII, §801, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2876, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2969.)

Editorial Notes

References in Text

The Hawaiian Homes Commission Act, 1920, referred to in pars. (1) and (4)(B), is act July 9, 1921, ch. 42, 42 Stat. 108, which was classified generally to sections 691 to 718 of Title 48, Territories and Insular Possessions, and was omitted from the Code.

This chapter, referred to in par. (5), 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.

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted substantially identical sections 801 of Pub. L. 104–330. This section is based on the text of section 801 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 104–330, title VIII, §808, as added by Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2979, provided that: "Except as otherwise expressly provided in this title [enacting this subchapter], this title shall take effect on the date of the enactment of the American Homeownership and Economic Opportunity Act of 2000 [Pub. L. 106–569, approved Dec. 27, 2000]."

Pub. L. 104–330, title VIII, §808, as added by Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2885, provided that: "Except as otherwise expressly provided in this title [enacting this subchapter], this title shall take effect on the date of the enactment of the Native American Housing Assistance and Self-Determination Amendments of 2000 [probably should be the Hawaiian Homelands Ownership Act of 2000, title II of Pub. L. 106–568, approved Dec. 27, 2000]."

Findings

Pub. L. 106–569, title V, §512, Dec. 27, 2000, 114 Stat. 2966, provided that: "The Congress finds that—

"(1) the United States has undertaken a responsibility to promote the general welfare of the United States by—

"(A) employing its resources to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of lower income; and

"(B) developing effective partnerships with governmental and private entities to accomplish the objectives referred to in subparagraph (A);

"(2) the United States has a special responsibility for the welfare of the Native peoples of the United States, including Native Hawaiians;

"(3) pursuant to the provisions of the Hawaiian Homes Commission Act, 1920 (42 Stat. 108 et seq.) [former 48 U.S.C. 691 et seq.], the United States set aside 200,000 acres of land in the Federal territory that later became the State of Hawaii in order to establish a homeland for the native people of Hawaii—Native Hawaiians;

"(4) despite the intent of Congress in 1920 to address the housing needs of Native Hawaiians through the enactment of the Hawaiian Homes Commission Act, 1920 (42 Stat. 108 et seq.), Native Hawaiians eligible to reside on the Hawaiian home lands have been foreclosed from participating in Federal housing assistance programs available to all other eligible families in the United States;

"(5) although Federal housing assistance programs have been administered on a racially neutral basis in the State of Hawaii, Native Hawaiians continue to have the greatest unmet need for housing and the highest rates of overcrowding in the United States;

"(6) among the Native American population of the United States, Native Hawaiians experience the highest percentage of housing problems in the United States, as the percentage—

"(A) of housing problems in the Native Hawaiian population is 49 percent, as compared to—

"(i) 44 percent for American Indian and Alaska Native households in Indian country; and

"(ii) 27 percent for all other households in the United States; and

"(B) overcrowding in the Native Hawaiian population is 36 percent as compared to 3 percent for all other households in the United States;

"(7) among the Native Hawaiian population, the needs of Native Hawaiians, as that term is defined in section 801 of the Native American Housing Assistance and Self-Determination Act of 1996 [25 U.S.C. 4221] (as added by this subtitle), eligible to reside on the Hawaiian Home Lands are the most severe, as—

"(A) the percentage of overcrowding in Native Hawaiian households on the Hawaiian Home Lands is 36 percent; and

"(B) approximately 13,000 Native Hawaiians, which constitute 95 percent of the Native Hawaiians who are eligible to reside on the Hawaiian Home Lands, are in need of housing;

"(8) applying the Department of Housing and Urban Development guidelines—

"(A) 70.8 percent of Native Hawaiians who either reside or who are eligible to reside on the Hawaiian Home Lands have incomes that fall below the median family income; and

"(B) 50 percent of Native Hawaiians who either reside or who are eligible to reside on the Hawaiian Home Lands have incomes below 30 percent of the median family income;

"(9) one-third of those Native Hawaiians who are eligible to reside on the Hawaiian Home Lands pay more than 30 percent of their income for shelter, and one-half of those Native Hawaiians face overcrowding;

"(10) the extraordinarily severe housing needs of Native Hawaiians demonstrate that Native Hawaiians who either reside on, or are eligible to reside on, Hawaiian Home Lands have been denied equal access to Federal low-income housing assistance programs available to other qualified residents of the United States, and that a more effective means of addressing their housing needs must be authorized;

"(11) consistent with the recommendations of the National Commission on American Indian, Alaska Native, and Native Hawaiian Housing, and in order to address the continuing prevalence of extraordinarily severe housing needs among Native Hawaiians who either reside or are eligible to reside on the Hawaiian Home Lands, Congress finds it necessary to extend the Federal low-income housing assistance available to American Indians and Alaska Natives under the Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101 et seq.) to those Native Hawaiians;

"(12) under the treatymaking power of the United States, Congress had the constitutional authority to confirm a treaty between the United States and the government that represented the Hawaiian people, and from 1826 until 1893, the United States recognized the independence of the Kingdom of Hawaii, extended full diplomatic recognition to the Hawaiian Government, and entered into treaties and conventions with the Hawaiian monarchs to govern commerce and navigation in 1826, 1842, 1849, 1875, and 1887;

"(13) the United States has recognized and reaffirmed that—

"(A) Native Hawaiians have a cultural, historic, and land-based link to the indigenous people who exercised sovereignty over the Hawaiian Islands, and that group has never relinquished its claims to sovereignty or its sovereign lands;

"(B) Congress does not extend services to Native Hawaiians because of their race, but because of their unique status as the indigenous people of a once sovereign nation as to whom the United States has established a trust relationship;

"(C) Congress has also delegated broad authority to administer a portion of the Federal trust responsibility to the State of Hawaii;

"(D) the political status of Native Hawaiians is comparable to that of American Indians and Alaska Natives; and

"(E) the aboriginal, indigenous people of the United States have—

"(i) a continuing right to autonomy in their internal affairs; and

"(ii) an ongoing right of self-determination and self-governance that has never been extinguished;

"(14) the political relationship between the United States and the Native Hawaiian people has been recognized and reaffirmed by the United States as evidenced by the inclusion of Native Hawaiians in—

"(A) the Native American Programs Act of 1974 (42 U.S.C. 2291 [2991] et seq.);

"(B) the American Indian Religious Freedom Act (42 U.S.C. 1996 et seq.);

"(C) the National Museum of the American Indian Act (20 U.S.C. 80q et seq.);

"(D) the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.);

"(E) the National Historic Preservation Act (16 U.S.C. 470 et seq.) [see 54 U.S.C. 300101 et seq.];

"(F) the Native American Languages Act of 1992 (106 Stat. 3434 [Pub. L. 102–524, see Short Title of 1992 Amendment note set out under section 2991 of Title 42, The Public Health and Welfare]);

"(G) the American Indian, Alaska Native and Native Hawaiian Culture and Arts [Art] Development Act (20 U.S.C. 4401 et seq.);

"(H) the Job Training Partnership Act ([former] 29 U.S.C. 1501 et seq.); and

"(I) the Older Americans Act of 1965 (42 U.S.C. 3001 et seq.); and

"(15) in the area of housing, the United States has recognized and reaffirmed the political relationship with the Native Hawaiian people through—

"(A) the enactment of the Hawaiian Homes Commission Act, 1920 (42 Stat. 108 et seq.), which set aside approximately 200,000 acres of public lands that became known as Hawaiian Home Lands in the Territory of Hawaii that had been ceded to the United States for homesteading by Native Hawaiians in order to rehabilitate a landless and dying people;

"(B) the enactment of the Act entitled 'An Act to provide for the admission of the State of Hawaii into the Union', approved March 18, 1959 (73 Stat. 4) [Pub. L. 86–3, 48 U.S.C. note prec. 491]—

"(i) by ceding to the State of Hawaii title to the public lands formerly held by the United States, and mandating that those lands be held in public trust, for the betterment of the conditions of Native Hawaiians, as that term is defined in section 201 of the Hawaiian Homes Commission Act, 1920 (42 Stat. 108 et seq.); and

"(ii) by transferring the United States responsibility for the administration of Hawaiian Home Lands to the State of Hawaii, but retaining the authority to enforce the trust, including the exclusive right of the United States to consent to any actions affecting the lands which comprise the corpus of the trust and any amendments to the Hawaiian Homes Commission Act, 1920 (42 Stat. 108 et seq.), enacted by the legislature of the State of Hawaii affecting the rights of beneficiaries under the Act;

"(C) the authorization of mortgage loans insured by the Federal Housing Administration for the purchase, construction, or refinancing of homes on Hawaiian Home Lands under the National Housing Act (Public Law 479; 73d Congress; 12 U.S.C. 1701 et seq.);

"(D) authorizing Native Hawaiian representation on the National Commission on American Indian, Alaska Native, and Native Hawaiian Housing under Public Law 101–235 [see Tables for classification];

"(E) the inclusion of Native Hawaiians in the definition under section 3764 [now 3765] of title 38, United States Code, applicable to subchapter V of chapter 37 of title 38, United States Code (relating to a housing loan program for Native American veterans); and

"(F) the enactment of the Hawaiian Home Lands Recovery Act (109 Stat. 357; 48 U.S.C. 491, note prec.) [Pub. L. 104–42, title II] which establishes a process for the conveyance of Federal lands to the Department of Hawaiian Homes Lands that are equivalent in value to lands acquired by the United States from the Hawaiian Home Lands inventory."

Substantially identical provisions were contained in Pub. L. 106–568, title II, §202, Dec. 27, 2000, 114 Stat. 2872.

§4222. Block grants for affordable housing activities

(a) Grant authority

For each fiscal year, the Secretary shall (to the extent amounts are made available to carry out this subchapter) make a grant under this subchapter to the Department of Hawaiian Home Lands to carry out affordable housing activities for Native Hawaiian families who are eligible to reside on the Hawaiian Home Lands.

(b) Plan requirement

(1) In general

The Secretary may make a grant under this subchapter to the Department of Hawaiian Home Lands for a fiscal year only if—

(A) the Director has submitted to the Secretary a housing plan for that fiscal year; and

(B) the Secretary has determined under section 4224 of this title that the housing plan complies with the requirements of section 4223 of this title.

(2) Waiver

The Secretary may waive the applicability of the requirements under paragraph (1), in part, if the Secretary finds that the Department of Hawaiian Home Lands has not complied or cannot comply with those requirements due to circumstances beyond the control of the Department of Hawaiian Home Lands.

(c) Use of funds for affordable housing activities under plan

Except as provided in subsection (e), amounts provided under a grant under this section may be used only for affordable housing activities under this subchapter that are consistent with a housing plan approved under section 4224 of this title.

(d) Administrative expenses

(1) In general

The Secretary shall, by regulation, authorize the Department of Hawaiian Home Lands to use a percentage of any grant amounts received under this subchapter for any reasonable administrative and planning expenses of the Department relating to carrying out this subchapter and activities assisted with those amounts.

(2) Administrative and planning expenses

The administrative and planning expenses referred to in paragraph (1) include—

(A) costs for salaries of individuals engaged in administering and managing affordable housing activities assisted with grant amounts provided under this subchapter; and

(B) expenses incurred in preparing a housing plan under section 4223 of this title.

(e) Public-private partnerships

The Director shall make all reasonable efforts, consistent with the purposes of this subchapter, to maximize participation by the private sector, including nonprofit organizations and for-profit entities, in implementing a housing plan that has been approved by the Secretary under section 4223 of this title.

(Pub. L. 104–330, title VIII, §802, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2877, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2971.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted identical sections 802 of Pub. L. 104–330. This section is based on the text of section 802 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

§4223. Housing plan

(a) Plan submission

The Secretary shall—

(1) require the Director to submit a housing plan under this section for each fiscal year; and

(2) provide for the review of each plan submitted under paragraph (1).

(b) Five-year plan

Each housing plan under this section shall—

(1) be in a form prescribed by the Secretary; and

(2) contain, with respect to the 5-year period beginning with the fiscal year for which the plan is submitted, the following information:

(A) Mission statement.—A general statement of the mission of the Department of Hawaiian Home Lands to serve the needs of the low-income families to be served by the Department.

(B) Goals and objectives.—A statement of the goals and objectives of the Department of Hawaiian Home Lands to enable the Department to serve the needs identified in subparagraph (A) during the period.

(C) Activities plans.—An overview of the activities planned during the period including an analysis of the manner in which the activities will enable the Department to meet its mission, goals, and objectives.

(c) One-year plan

A housing plan under this section shall—

(1) be in a form prescribed by the Secretary; and

(2) contain the following information relating to the fiscal year for which the assistance under this subchapter is to be made available:

(A) Goals and objectives.—A statement of the goals and objectives to be accomplished during the period covered by the plan.

(B) Statement of needs.—A statement of the housing needs of the low-income families served by the Department and the means by which those needs will be addressed during the period covered by the plan, including—

(i) a description of the estimated housing needs and the need for assistance for the low-income families to be served by the Department, including a description of the manner in which the geographical distribution of assistance is consistent with—

(I) the geographical needs of those families; and

(II) needs for various categories of housing assistance; and

(ii) a description of the estimated housing needs for all families to be served by the Department.

(C) Financial resources.—An operating budget for the Department of Hawaiian Home Lands, in a form prescribed by the Secretary, that includes—

(i) an identification and a description of the financial resources reasonably available to the Department to carry out the purposes of this subchapter, including an explanation of the manner in which amounts made available will be used to leverage additional resources; and

(ii) the uses to which the resources described in clause (i) will be committed, including—

(I) eligible and required affordable housing activities; and

(II) administrative expenses.

(D) Affordable housing resources.—A statement of the affordable housing resources currently available at the time of the submittal of the plan and to be made available during the period covered by the plan, including—

(i) a description of the significant characteristics of the housing market in the State of Hawaii, including the availability of housing from other public sources, private market housing;

(ii) the manner in which the characteristics referred to in clause (i) influence the decision of the Department of Hawaiian Home Lands to use grant amounts to be provided under this subchapter for—

(I) rental assistance;

(II) the production of new units;

(III) the acquisition of existing units; or

(IV) the rehabilitation of units;

(iii) a description of the structure, coordination, and means of cooperation between the Department of Hawaiian Home Lands and any other governmental entities in the development, submission, or implementation of housing plans, including a description of—

(I) the involvement of private, public, and nonprofit organizations and institutions;

(II) the use of loan guarantees under section 1715z–13b of title 12; and

(III) other housing assistance provided by the United States, including loans, grants, and mortgage insurance;

(iv) a description of the manner in which the plan will address the needs identified pursuant to subparagraph (C);

(v) a description of—

(I) any existing or anticipated homeownership programs and rental programs to be carried out during the period covered by the plan; and

(II) the requirements and assistance available under the programs referred to in subclause (I);

(vi) a description of—

(I) any existing or anticipated housing rehabilitation programs necessary to ensure the long-term viability of the housing to be carried out during the period covered by the plan; and

(II) the requirements and assistance available under the programs referred to in subclause (I);

(vii) a description of—

(I) all other existing or anticipated housing assistance provided by the Department of Hawaiian Home Lands during the period covered by the plan, including—

(aa) transitional housing;

(bb) homeless housing;

(cc) college housing; and

(dd) supportive services housing; and

(II) the requirements and assistance available under such programs;

(viii)(I) a description of any housing to be demolished or disposed of;

(II) a timetable for that demolition or disposition; and

(III) any other information required by the Secretary with respect to that demolition or disposition;

(ix) a description of the manner in which the Department of Hawaiian Home Lands will coordinate with welfare agencies in the State of Hawaii to ensure that residents of the affordable housing will be provided with access to resources to assist in obtaining employment and achieving self-sufficiency;

(x) a description of the requirements established by the Department of Hawaiian Home Lands to—

(I) promote the safety of residents of the affordable housing;

(II) facilitate the undertaking of crime prevention measures;

(III) allow resident input and involvement, including the establishment of resident organizations; and

(IV) allow for the coordination of crime prevention activities between the Department and local law enforcement officials; and

(xi) a description of the entities that will carry out the activities under the plan, including the organizational capacity and key personnel of the entities.

(E) Certification of compliance.—Evidence of compliance that shall include, as appropriate—

(i) a certification that the Department of Hawaiian Home Lands will comply with—

(I) title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) or with the Fair Housing Act (42 U.S.C. 3601 et seq.) in carrying out this subchapter, to the extent that such title ¹ is applicable; and

(II) other applicable Federal statutes;

(ii) a certification that the Department will require adequate insurance coverage for housing units that are owned and operated or assisted with grant amounts provided under this subchapter, in compliance with such requirements as may be established by the Secretary;

(iii) a certification that policies are in effect and are available for review by the Secretary and the public governing the eligibility, admission, and occupancy of families for housing assisted with grant amounts provided under this subchapter;

(iv) a certification that policies are in effect and are available for review by the Secretary and the public governing rents charged, including the methods by which such rents or homebuyer payments are determined, for housing assisted with grant amounts provided under this subchapter; and

(v) a certification that policies are in effect and are available for review by the Secretary and the public governing the management and maintenance of housing assisted with grant amounts provided under this subchapter.

(d) Applicability of civil rights statutes

(1) In general

To the extent that the requirements of title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) or of the Fair Housing Act (42 U.S.C. 3601 et seq.) apply to assistance provided under this subchapter, nothing in the requirements concerning discrimination on the basis of race shall be construed to prevent the provision of assistance under this subchapter—

(A) to the Department of Hawaiian Home Lands on the basis that the Department served Native Hawaiians; or

(B) to an eligible family on the basis that the family is a Native Hawaiian family.

(2) Civil rights

Program eligibility under this subchapter may be restricted to Native Hawaiians. Subject to the preceding sentence, no person may be discriminated against on the basis of race, color, national origin, religion, sex, familial status, or disability.

(e) Use of nonprofit organizations

As a condition of receiving grant amounts under this subchapter, the Department of Hawaiian Home Lands shall, to the extent practicable, provide for private nonprofit organizations experienced in the planning and development of affordable housing for Native Hawaiians to carry out affordable housing activities with those grant amounts.

(Pub. L. 104–330, title VIII, §803, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2878, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2971.)

Editorial Notes

References in Text

The Civil Rights Act of 1964, referred to in subsecs. (c)(2)(E)(i)(I) and (d)(1), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241. Title VI of the Act is classified generally to subchapter V (§2000d et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables.

The Fair Housing Act, referred to in subsecs. (c)(2)(E)(i)(I) and (d)(1), is title VIII of Pub. L. 90–284, Apr. 11, 1968, 82 Stat. 81, which is classified principally to subchapter I (§3601 et seq.) of chapter 45 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 3601 of Title 42 and Tables.

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted substantially identical sections 803 of Pub. L. 104–330. This section is based on the text of section 803 of Pub. L. 104–330, as added by Pub. L. 106–569, §513. Section 803 of Pub. L. 104–330, as added by Pub. L. 106–568, referred to title VIII of the Act popularly known as the Civil Rights Act of 1968 instead of the Fair Housing Act in subsecs. (c)(2)(E)(i)(I) and (d)(1). Title VIII of the Civil Rights Act of 1968 is title VIII of Pub. L. 90–284 which is known as the Fair Housing Act, see References in Text note above. The reference to "such title" in subsec. (c)(2)(E)(i)(I) probably refers to title VI of the Civil Rights Act of 1964 and title VIII of the Civil Rights Act of 1968 (the Fair Housing Act).

¹ See Codification note below.

§4224. Review of plans

(a) Review and notice

(1) Review

(A) In general

The Secretary shall conduct a review of a housing plan submitted to the Secretary under section 4223 of this title to ensure that the plan complies with the requirements of that section.

(B) Limitation

The Secretary shall have the discretion to review a plan referred to in subparagraph (A) only to the extent that the Secretary considers that the review is necessary.

(2) Notice

(A) In general

Not later than 60 days after receiving a plan under section 4223 of this title, the Secretary shall notify the Director of the Department of Hawaiian Home Lands whether the plan complies with the requirements under that section.

(B) Effect of failure of Secretary to take action

For purposes of this subchapter, if the Secretary does not notify the Director, as required under this subsection and subsection (b), upon the expiration of the 60-day period described in subparagraph (A)—

(i) the plan shall be considered to have been determined to comply with the requirements under section 4223 of this title; and

(ii) the Director shall be considered to have been notified of compliance.

(b) Notice of reasons for determination of noncompliance

If the Secretary determines that a plan submitted under section 4223 of this title does not comply with the requirements of that section, the Secretary shall specify in the notice under subsection (a)—

(1) the reasons for noncompliance; and

(2) any modifications necessary for the plan to meet the requirements of section 4223 of this title.

(c) Review

(1) In general

After the Director of the Department of Hawaiian Home Lands submits a housing plan under section 4223 of this title, or any amendment or modification to the plan to the Secretary, to the extent that the Secretary considers such action to be necessary to make a determination under this subsection, the Secretary shall review the plan (including any amendments or modifications thereto) to determine whether the contents of the plan—

(A) set forth the information required by section 4223 of this title to be contained in the housing plan;

(B) are consistent with information and data available to the Secretary; and

(2) Incomplete plans

If the Secretary determines under this subsection that any of the appropriate certifications required under section 4223(c)(2)(E) of this title are not included in a plan, the plan shall be considered to be incomplete.

(d) Updates to plan

(1) In general

Subject to paragraph (2), after a plan under section 4223 of this title has been submitted for a fiscal year, the Director of the Department of Hawaiian Home Lands may comply with the provisions of that section for any succeeding fiscal year (with respect to information included for the 5-year period under section 4223(b) of this title or for the 1-year period under section 4223(c) of this title) by submitting only such information regarding such changes as may be necessary to update the plan previously submitted.

(2) Complete plans

The Director shall submit a complete plan under section 4223 of this title not later than 4 years after submitting an initial plan under that section, and not less frequently than every 4 years thereafter.

(e) Effective date

This section and section 4223 of this title shall take effect on the date provided by the Secretary pursuant to section 4227(a) ¹ of this title to provide for timely submission and review of the housing plan as necessary for the provision of assistance under this subchapter for fiscal year 2001.

(Pub. L. 104–330, title VIII, §804, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2881, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2975.)

Editorial Notes

References in Text

This chapter, referred to in subsec. (c)(1)(C), 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.

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted substantially identical sections 804 of Pub. L. 104–330. This section is based on the text of section 804 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

¹ So in original. Probably should be section "4227".

§4225. Treatment of program income and labor standards

(a) Program income

(1) Authority to retain

The Department of Hawaiian Home Lands may retain any program income that is realized from any grant amounts received by the Department under this subchapter if—

(A) that income was realized after the initial disbursement of the grant amounts received by the Department; and

(B) the Director agrees to use the program income for affordable housing activities in accordance with the provisions of this subchapter.

(2) Prohibition of reduction of grant

The Secretary may not reduce the grant amount for the Department of Hawaiian Home Lands based solely on—

(A) whether the Department retains program income under paragraph (1); or

(B) the amount of any such program income retained.

(3) Exclusion of amounts

The Secretary may, by regulation, exclude from consideration as program income any amounts determined to be so small that compliance with the requirements of this subsection would create an unreasonable administrative burden on the Department.

(b) Labor standards

(1) In general

Any contract or agreement for assistance, sale, or lease pursuant to this subchapter shall contain—

(A) a provision requiring that an amount not less than the wages prevailing in the locality, as determined or adopted (subsequent to a determination under applicable State or local law) by the Secretary, shall be paid to all architects, technical engineers, draftsmen, technicians employed in the development and all maintenance, and laborers and mechanics employed in the operation, of the affordable housing project involved; and

(B) a provision that an amount not less than the wages prevailing in the locality, as predetermined by the Secretary of Labor pursuant to sections 3141–3144, 3146, and 3147 of title 40 shall be paid to all laborers and mechanics employed in the development of the affordable housing involved.

(2) Exceptions

Paragraph (1) and provisions relating to wages required under paragraph (1) in any contract or agreement for assistance, sale, or lease under this subchapter, shall not apply to any individual who performs the services for which the individual volunteered and who is not otherwise employed at any time in the construction work and received no compensation or is paid expenses, reasonable benefits, or a nominal fee for those services.

(Pub. L. 104–330, title VIII, §805, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2883, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2976.)

Editorial Notes

Codification

"Sections 3141–3144, 3146, and 3147 of title 40" substituted in subsec. (b)(1)(B) for "the Act commonly known as the 'Davis-Bacon Act' (46 Stat. 1494; chapter 411; 40 U.S.C. 276a et seq.)" on authority of Pub. L. 107–217, §5(c), Aug. 21, 2002, 116 Stat. 1303, the first section of which enacted Title 40, Public Buildings, Property, and Works.

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted substantially identical sections 805 of Pub. L. 104–330. This section is based on the text of section 805 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

§4226. Environmental review

(a) In general

(1) Release of funds

(A) In general

The Secretary may carry out the alternative environmental protection procedures described in subparagraph (B) in order to ensure—

(i) that the policies of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and other provisions of law that further the purposes of such Act (as specified in regulations issued by the Secretary) are most effectively implemented in connection with the expenditure of grant amounts provided under this subchapter; and

(ii) to the public undiminished protection of the environment.

(B) Alternative environmental protection procedure

In lieu of applying environmental protection procedures otherwise applicable, the Secretary may by regulation provide for the release of funds for specific projects to the Department of Hawaiian Home Lands if the Director of the Department assumes all of the responsibilities for environmental review, decisionmaking, and action under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), and such other provisions of law as the regulations of the Secretary specify, that would apply to the Secretary were the Secretary to undertake those projects as Federal projects.

(2) Regulations

(A) In general

The Secretary shall issue regulations to carry out this section only after consultation with the Council on Environmental Quality.

(B) Contents

The regulations issued under this paragraph shall—

(i) provide for the monitoring of the environmental reviews performed under this section;

(ii) in the discretion of the Secretary, facilitate training for the performance of such reviews; and

(iii) provide for the suspension or termination of the assumption of responsibilities under this section.

(3) Effect on assumed responsibility

The duty of the Secretary under paragraph (2)(B) shall not be construed to limit or reduce any responsibility assumed by the Department of Hawaiian Home Lands for grant amounts with respect to any specific release of funds.

(b) Procedure

(1) In general

The Secretary shall authorize the release of funds subject to the procedures under this section only if, not less than 15 days before that approval and before any commitment of funds to such projects, the Director of the Department of Hawaiian Home Lands submits to the Secretary a request for such release accompanied by a certification that meets the requirements of subsection (c).

(2) Effect of approval

The approval of the Secretary of a certification described in paragraph (1) shall be deemed to satisfy the responsibilities of the Secretary under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and such other provisions of law as the regulations of the Secretary specify to the extent that those responsibilities relate to the releases of funds for projects that are covered by that certification.

(c) Certification

A certification under the procedures under this section shall—

(1) be in a form acceptable to the Secretary;

(2) be executed by the Director of the Department of Hawaiian Home Lands;

(3) specify that the Department of Hawaiian Home Lands has fully carried out its responsibilities as described under subsection (a); and

(4) specify that the Director—

(A) consents to assume the status of a responsible Federal official under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and each provision of law specified in regulations issued by the Secretary to the extent that those laws apply by reason of subsection (a); and

(B) is authorized and consents on behalf of the Department of Hawaiian Home Lands and the Director to accept the jurisdiction of the Federal courts for the purpose of enforcement of the responsibilities of the Director of the Department of Hawaiian Home Lands as such an official.

(Pub. L. 104–330, title VIII, §806, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2883, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2977.)

Editorial Notes

References in Text

The National Environmental Policy Act of 1969, referred to in subsecs. (a)(1), (b)(2), and (c)(4)(A), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted substantially identical sections 806 of Pub. L. 104–330. This section is based on the text of section 806 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

§4227. Regulations

The Secretary shall issue final regulations necessary to carry out this subchapter not later than October 1, 2001.

(Pub. L. 104–330, title VIII, §807, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2885, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2979.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted substantially identical sections 807 of Pub. L. 104–330. This section is based on the text of section 807 of Pub. L. 104–330, as added by Pub. L. 106–569, §513. Section 807 of Pub. L. 104–330, as added by Pub. L. 106–568, §203, required the issuance of final regulations not later than October 1, 2000, instead of October 1, 2001.

§4228. Affordable housing activities

(a) ¹ National objectives and eligible families

(1) Primary objective

The national objectives of this subchapter are—

(A) to assist and promote affordable housing activities to develop, maintain, and operate affordable housing in safe and healthy environments for occupancy by low-income Native Hawaiian families;

(B) to ensure better access to private mortgage markets and to promote self-sufficiency of low-income Native Hawaiian families;

(C) to coordinate activities to provide housing for low-income Native Hawaiian families with Federal, State, and local activities to further economic and community development;

(D) to plan for and integrate infrastructure resources on the Hawaiian Home Lands with housing development; and

(E) to—

(i) promote the development of private capital markets; and

(ii) allow the markets referred to in clause (i) to operate and grow, thereby benefiting Native Hawaiian communities.

(2) Eligible families

(A) In general

Except as provided under subparagraph (B), assistance for eligible housing activities under this subchapter shall be limited to low-income Native Hawaiian families.

(B) Exception to low-income requirement

(i) In general

The Director may provide assistance for homeownership activities under—

(I) section 4229(b) of this title;

(II) model activities under section 4229(f) of this title; or

(III) loan guarantee activities under section 1715z–13b of title 12 to Native Hawaiian families who are not low-income families, to the extent that the Secretary approves the activities under that section to address a need for housing for those families that cannot be reasonably met without that assistance.

(ii) Limitations

The Secretary shall establish limitations on the amount of assistance that may be provided under this subchapter for activities for families that are not low-income families.

(C) Other families

Notwithstanding paragraph (1), the Director may provide housing or housing assistance provided through affordable housing activities assisted with grant amounts under this subchapter to a family that is not composed of Native Hawaiians if—

(i) the Department determines that the presence of the family in the housing involved is essential to the well-being of Native Hawaiian families; and

(ii) the need for housing for the family cannot be reasonably met without the assistance.

(D) Preference

(i) In general

A housing plan submitted under section 4223 of this title may authorize a preference, for housing or housing assistance provided through affordable housing activities assisted with grant amounts provided under this subchapter to be provided, to the extent practicable, to families that are eligible to reside on the Hawaiian Home Lands.

(ii) Application

In any case in which a housing plan provides for preference described in clause (i), the Director shall ensure that housing activities that are assisted with grant amounts under this subchapter are subject to that preference.

(E) Use of nonprofit organizations

As a condition of receiving grant amounts under this subchapter, the Department of Hawaiian Home Lands, shall to the extent practicable, provide for private nonprofit organizations experienced in the planning and development of affordable housing for Native Hawaiians to carry out affordable housing activities with those grant amounts.

(Pub. L. 104–330, title VIII, §809, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2885, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2979.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted identical sections 809 of Pub. L. 104–330. This section is based on the text of section 809 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

¹ So in original. No subsec. (b) has been enacted.

§4229. Eligible affordable housing activities

(a) In general

Affordable housing activities under this section are activities conducted in accordance with the requirements of section 4230 of this title to—

(1) develop or to support affordable housing for rental or homeownership; or

(2) provide housing services with respect to affordable housing, through the activities described in subsection (b).

(b) Activities

The activities described in this subsection are the following:

(1) Development

The acquisition, new construction, reconstruction, or moderate or substantial rehabilitation of affordable housing, which may include—

(A) real property acquisition;

(B) site improvement;

(D) conversion;

(E) demolition;

(F) financing;

(G) administration and planning; and

(H) other related activities.

(2) Housing services

The provision of housing-related services for affordable housing, including—

(A) housing counseling in connection with rental or homeownership assistance;

(B) the establishment and support of resident organizations and resident management corporations;

(D) activities related to the provisions of self-sufficiency and other services; and

(E) other services related to assisting owners, tenants, contractors, and other entities participating or seeking to participate in other housing activities assisted pursuant to this section.

(3) Housing management services

The provision of management services for affordable housing, including—

(A) the preparation of work specifications;

(B) loan processing;

(D) tenant selection;

(E) management of tenant-based rental assistance; and

(F) management of affordable housing projects.

(4) Crime prevention and safety activities

The provision of safety, security, and law enforcement measures and activities appropriate to protect residents of affordable housing from crime.

(5) Model activities

Housing activities under model programs that are—

(A) designed to carry out the purposes of this subchapter; and

(B) specifically approved by the Secretary as appropriate for the purpose referred to in subparagraph (A).

(Pub. L. 104–330, title VIII, §810, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2886, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2980.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted identical sections 810 of Pub. L. 104–330. This section is based on the text of section 810 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

§4230. Program requirements

(a) Rents

(1) Establishment

Subject to paragraph (2), as a condition to receiving grant amounts under this subchapter, the Director shall develop written policies governing rents and homebuyer payments charged for dwelling units assisted under this subchapter, including methods by which such rents and homebuyer payments are determined.

(2) Maximum rent

In the case of any low-income family residing in a dwelling unit assisted with grant amounts under this subchapter, the monthly rent or homebuyer payment (as applicable) for that dwelling unit may not exceed 30 percent of the monthly adjusted income of that family.

(b) Maintenance and efficient operation

(1) In general

The Director shall, using amounts of any grants received under this subchapter, reserve and use for operating under section 4229 of this title such amounts as may be necessary to provide for the continued maintenance and efficient operation of such housing.

(2) Disposal of certain housing

This subsection may not be construed to prevent the Director, or any entity funded by the Department, from demolishing or disposing of housing, pursuant to regulations established by the Secretary.

(c) Insurance coverage

As a condition to receiving grant amounts under this subchapter, the Director shall require adequate insurance coverage for housing units that are owned or operated or assisted with grant amounts provided under this subchapter.

(d) Eligibility for admission

As a condition to receiving grant amounts under this subchapter, the Director shall develop written policies governing the eligibility, admission, and occupancy of families for housing assisted with grant amounts provided under this subchapter.

(e) Management and maintenance

As a condition to receiving grant amounts under this subchapter, the Director shall develop policies governing the management and maintenance of housing assisted with grant amounts under this subchapter.

(Pub. L. 104–330, title VIII, §811, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2887, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2981.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted identical sections 811 of Pub. L. 104–330. This section is based on the text of section 811 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

§4231. Types of investments

(a) In general

Subject to section 4230 of this title and an applicable housing plan approved under section 4223 of this title, the Director shall have—

(1) the discretion to use grant amounts for affordable housing activities through the use of—

(A) equity investments;

(B) interest-bearing loans or advances;

(D) interest subsidies;

(E) the leveraging of private investments; or

(F) any other form of assistance that the Secretary determines to be consistent with the purposes of this subchapter; and

(2) the right to establish the terms of assistance provided with funds referred to in paragraph (1).

(b) Investments

The Director may invest grant amounts for the purposes of carrying out affordable housing activities in investment securities and other obligations, as approved by the Secretary.

(Pub. L. 104–330, title VIII, §812, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2888, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2982.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted identical sections 812 of Pub. L. 104–330. This section is based on the text of section 812 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

§4232. Low-income requirement and income targeting

(a) In general

Housing shall qualify for affordable housing for purposes of this subchapter only if—

(1) each dwelling unit in the housing—

(A) in the case of rental housing, is made available for occupancy only by a family that is a low-income family at the time of the initial occupancy of that family of that unit; and

(B) in the case of housing for homeownership, is made available for purchase only by a family that is a low-income family at the time of purchase; and

(2) each dwelling unit in the housing will remain affordable, according to binding commitments satisfactory to the Secretary, for—

(A) the remaining useful life of the property (as determined by the Secretary) without regard to the term of the mortgage or to transfer of ownership; or

(B) such other period as the Secretary determines is the longest feasible period of time consistent with sound economics and the purposes of this subchapter, except upon a foreclosure by a lender (or upon other transfer in lieu of foreclosure) if that action—

(i) recognizes any contractual or legal rights of any public agency, nonprofit sponsor, or other person or entity to take an action that would—

(I) avoid termination of low-income affordability, in the case of foreclosure; or

(II) transfer ownership in lieu of foreclosure; and

(ii) is not for the purpose of avoiding low-income affordability restrictions, as determined by the Secretary.

(b) Exception

Notwithstanding subsection (a), housing assistance pursuant to section 4228(a)(2)(B) of this title shall be considered affordable housing for purposes of this subchapter.

(Pub. L. 104–330, title VIII, §813, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2888, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2982.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted identical sections 813 of Pub. L. 104–330. This section is based on the text of section 813 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

§4233. Lease requirements and tenant selection

(a) Leases

Except to the extent otherwise provided by or inconsistent with the laws of the State of Hawaii, in renting dwelling units in affordable housing assisted with grant amounts provided under this subchapter, the Director, owner, or manager shall use leases that—

(1) do not contain unreasonable terms and conditions;

(2) require the Director, owner, or manager to maintain the housing in compliance with applicable housing codes and quality standards;

(3) require the Director, owner, or manager to give adequate written notice of termination of the lease, which shall be the period of time required under applicable State or local law;

(4) specify that, with respect to any notice of eviction or termination, notwithstanding any State or local law, a resident shall be informed of the opportunity, before any hearing or trial, to examine any relevant documents, record, or regulations directly related to the eviction or termination;

(5) require that the Director, owner, or manager may not terminate the tenancy, during the term of the lease, except for serious or repeated violation of the terms and conditions of the lease, violation of applicable Federal, State, or local law, or for other good cause; and

(6) provide that the Director, owner, or manager may terminate the tenancy of a resident for any activity, engaged in by the resident, any member of the household of the resident, or any guest or other person under the control of the resident, that—

(A) threatens the health or safety of, or right to peaceful enjoyment of the premises by, other residents or employees of the Department, owner, or manager;

(B) threatens the health or safety of, or right to peaceful enjoyment of their premises by, persons residing in the immediate vicinity of the premises; or

(b) Tenant or homebuyer selection

As a condition to receiving grant amounts under this subchapter, the Director shall adopt and use written tenant and homebuyer selection policies and criteria that—

(1) are consistent with the purpose of providing housing for low-income families;

(2) are reasonably related to program eligibility and the ability of the applicant to perform the obligations of the lease; and

(3) provide for—

(A) the selection of tenants and homebuyers from a written waiting list in accordance with the policies and goals set forth in an applicable housing plan approved under section 4223 of this title; and

(B) the prompt notification in writing of any rejected applicant of the grounds for that rejection.

(Pub. L. 104–330, title VIII, §814, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2889, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2983.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted identical sections 814 of Pub. L. 104–330. This section is based on the text of section 814 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

§4234. Repayment

If the Department of Hawaiian Home Lands uses grant amounts to provide affordable housing under activities under this subchapter and, at any time during the useful life of the housing, the housing does not comply with the requirement under section 4232(a)(2) of this title, the Secretary shall—

(1) reduce future grant payments on behalf of the Department by an amount equal to the grant amounts used for that housing (under the authority of section 4238(a)(2) of this title); or

(2) require repayment to the Secretary of any amount equal to those grant amounts.

(Pub. L. 104–330, title VIII, §815, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2890, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2984.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted identical sections 815 of Pub. L. 104–330. This section is based on the text of section 815 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

§4235. Annual allocation

For each fiscal year, the Secretary shall allocate any amounts made available for assistance under this subchapter for the fiscal year, in accordance with the formula established pursuant to section 4236 of this title to the Department of Hawaiian Home Lands if the Department complies with the requirements under this subchapter for a grant under this subchapter.

(Pub. L. 104–330, title VIII, §816, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2890, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2984.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted identical sections 816 of Pub. L. 104–330. This section is based on the text of section 816 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

§4236. Allocation formula

(a) Establishment

The Secretary shall, by regulation issued not later than the expiration of the 6-month period beginning on December 27, 2000, in the manner provided under section 4227 of this title, establish a formula to provide for the allocation of amounts available for a fiscal year for block grants under this subchapter in accordance with the requirements of this section.

(b) Factors for determination of need

The formula under subsection (a) shall be based on factors that reflect the needs for assistance for affordable housing activities, including—

(1) the number of low-income dwelling units owned or operated at the time pursuant to a contract between the Director and the Secretary;

(2) the extent of poverty and economic distress and the number of Native Hawaiian families eligible to reside on the Hawaiian Home Lands; and

(3) any other objectively measurable conditions that the Secretary and the Director may specify.

(c) Other factors for consideration

In establishing the formula under subsection (a), the Secretary shall consider the relative administrative capacities of the Department of Hawaiian Home Lands and other challenges faced by the Department, including—

(1) geographic distribution within Hawaiian Home Lands; and

(2) technical capacity.

(d) Effective date

This section shall take effect on December 27, 2000.

(Pub. L. 104–330, title VIII, §817, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2890, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2984.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted substantially identical sections 817 of Pub. L. 104–330. This section is based on the text of section 817 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

§4237. Remedies for noncompliance

(a) Actions by Secretary affecting grant amounts

(1) In general

Except as provided in subsection (b), if the Secretary finds after reasonable notice and opportunity for a hearing that the Department of Hawaiian Home Lands has failed to comply substantially with any provision of this subchapter, the Secretary shall—

(A) terminate payments under this subchapter to the Department;

(B) reduce payments under this subchapter to the Department by an amount equal to the amount of such payments that were not expended in accordance with this subchapter; or

(C) limit the availability of payments under this subchapter to programs, projects, or activities not affected by such failure to comply.

(2) Actions

If the Secretary takes an action under subparagraph (A), (B), or (C) of paragraph (1), the Secretary shall continue that action until the Secretary determines that the failure by the Department to comply with the provision has been remedied by the Department and the Department is in compliance with that provision.

(b) Noncompliance because of a technical incapacity

The Secretary may provide technical assistance for the Department, either directly or indirectly, that is designed to increase the capability and capacity of the Director of the Department to administer assistance provided under this subchapter in compliance with the requirements under this subchapter if the Secretary makes a finding under subsection (a), but determines that the failure of the Department to comply substantially with the provisions of this subchapter—

(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 Department of Hawaiian Home Lands.

(c) Referral for civil action

(1) Authority

In lieu of, or in addition to, any action that the Secretary may take under subsection (a), if the Secretary has reason to believe that the Department of Hawaiian Home Lands has failed to comply substantially with any provision of this subchapter, 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 receiving a referral under paragraph (1), the Attorney General may bring a civil action in any United States district court of appropriate jurisdiction for such relief as may be appropriate, including an action—

(A) to recover the amount of the assistance furnished under this subchapter that was not expended in accordance with this subchapter; or

(B) for mandatory or injunctive relief.

(d) Review

(1) In general

If the Director receives notice under subsection (a) of the termination, reduction, or limitation of payments under this chapter, the Director—

(A) may, not later than 60 days after receiving such notice, file with the United States Court of Appeals for the Ninth Circuit, 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

(A) In general

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.

(B) Objections

No objection to the action of the Secretary shall be considered by the court unless the Department has registered the objection before the Secretary.

(3) Disposition

(A) Court proceedings

(i) Jurisdiction of court

The court shall have jurisdiction to affirm or modify the action of the Secretary or to set the action aside in whole or in part.

(ii) Findings of fact

If supported by substantial evidence on the record considered as a whole, the findings of fact by the Secretary shall be conclusive.

(iii) Addition

The court may order evidence, in addition to the evidence submitted for review under this subsection, to be taken by the Secretary, and to be made part of the record.

(B) Secretary

(i) In general

The Secretary, by reason of the additional evidence referred to in subparagraph (A) and filed with the court—

(I) may—

(aa) modify the findings of fact of the Secretary; or

(bb) make new findings; and

(II) shall file—

(aa) such modified or new findings; and

(bb) the recommendation of the Secretary, if any, for the modification or setting aside of the original action of the Secretary.

(ii) Findings

The findings referred to in clause (i)(II)(bb) shall, with respect to a question of fact, be considered to be conclusive if those findings are—

(I) supported by substantial evidence on the record; and

(II) considered as a whole.

(4) Finality

(A) In general

Except as provided in subparagraph (B), upon the filing of the record under this subsection with the court—

(i) the jurisdiction of the court shall be exclusive; and

(ii) the judgment of the court shall be final.

(B) Review by Supreme Court

A judgment under subparagraph (A) 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 VIII, §818, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2891, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2985.)

Editorial Notes

References in Text

This chapter, referred to in subsec. (d)(1), 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.

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted identical sections 818 of Pub. L. 104–330. This section is based on the text of section 818 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

§4238. Monitoring of compliance

(a) Enforceable agreements

(1) In general

The Director, through binding contractual agreements with owners or other authorized entities, shall ensure long-term compliance with the provisions of this subchapter.

(2) Measures

The measures referred to in paragraph (1) shall provide for—

(A) to the extent allowable by Federal and State law, the enforcement of the provisions of this subchapter by the Department and the Secretary; and

(B) remedies for breach of the provisions referred to in paragraph (1).

(b) Periodic monitoring

(1) In general

Not less frequently than annually, the Director shall review the activities conducted and housing assisted under this subchapter to assess compliance with the requirements of this subchapter.

(2) Review

Each review under paragraph (1) shall include onsite inspection of housing to determine compliance with applicable requirements.

(3) Results

The results of each review under paragraph (1) shall be—

(A) included in a performance report of the Director submitted to the Secretary under section 4239 of this title; and

(B) 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 subchapter.

(Pub. L. 104–330, title VIII, §819, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2893, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2987.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted identical sections 819 of Pub. L. 104–330. This section is based on the text of section 819 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

§4239. Performance reports

(a) Requirement

For each fiscal year, the Director shall—

(1) review the progress the Department has made during that fiscal year in carrying out the housing plan submitted by the Department under section 4223 of this title; 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 submitted under this section for a fiscal year shall—

(1) describe the use of grant amounts provided to the Department of Hawaiian Home Lands for that fiscal year;

(2) assess the relationship of the use referred to in paragraph (1) to the goals identified in the housing plan;

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

(4) describe the manner in which the Department would change its housing plan submitted under section 4223 of this title as a result of its experiences.

(c) Submissions

The Secretary shall—

(1) establish a date for submission of each report under this section;

(2) review each such report; and

(3) with respect to each such report, make recommendations as the Secretary considers appropriate to carry out the purposes of this subchapter.

(d) Public availability

(1) Comments by beneficiaries

In preparing a report under this section, the Director shall make the report publicly available to the beneficiaries of the Hawaiian Homes Commission Act, 1920 (42 Stat. 108 et seq.) and give a sufficient amount of time to permit those beneficiaries to comment on that report before it is submitted to the Secretary (in such manner and at such time as the Director may determine).

(2) Summary of comments

The report shall include a summary of any comments received by the Director from beneficiaries under paragraph (1) regarding the program to carry out the housing plan.

(Pub. L. 104–330, title VIII, §820, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2893, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2987.)

Editorial Notes

References in Text

The Hawaiian Homes Commission Act, 1920, referred to in subsec. (d)(1), is act July 9, 1921, ch. 42, 42 Stat. 108, which was classified generally to sections 691 to 718 of Title 48, Territories and Insular Possessions, and was omitted from the Code.

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted identical sections 820 of Pub. L. 104–330. This section is based on the text of section 820 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

§4240. Review and audit by Secretary

(a) Annual review

(1) In general

The Secretary shall, not less frequently than on an annual basis, make such reviews and audits as may be necessary or appropriate to determine whether—

(A) the Director has—

(i) carried out eligible activities under this subchapter in a timely manner;

(ii) carried out and made certifications in accordance with the requirements and the primary objectives of this subchapter and with other applicable laws; and

(iii) a continuing capacity to carry out the eligible activities in a timely manner;

(B) the Director has complied with the housing plan submitted by the Director under section 4223 of this title; and

(2) Onsite visits

Each review conducted under this section shall, to the extent practicable, include onsite visits by employees of the Department of Housing and Urban Development.

(b) Report by Secretary

The Secretary shall give the Department of Hawaiian Home Lands not less than 30 days to review and comment on a report under this subsection. After taking into consideration the comments of the Department, the Secretary may revise the report and shall make the comments of the Department and the report with any revisions, readily available to the public not later than 30 days after receipt of the comments of the Department.

(c) Effect of reviews

The Secretary may make appropriate adjustments in the amount of annual grants under this subchapter in accordance with the findings of the Secretary pursuant to reviews and audits under this section. The Secretary may adjust, reduce, or withdraw grant amounts, or take other action as appropriate in accordance with the reviews and audits of the Secretary under this section, except that grant amounts already expended on affordable housing activities may not be recaptured or deducted from future assistance provided to the Department of Hawaiian Home Lands.

(Pub. L. 104–330, title VIII, §821, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2894, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2988.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted identical sections 821 of Pub. L. 104–330. This section is based on the text of section 821 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

¹ So in original. Probably should be section "4239".

§4241. Government Accountability Office audits

To the extent that the financial transactions of the Department of Hawaiian Home Lands involving grant amounts under this subchapter relate to amounts provided under this subchapter, those transactions may be audited by the Comptroller General of the United States under such regulations as may be prescribed by the Comptroller General. The Comptroller General of the United States shall have access to all books, accounts, records, reports, files, and other papers, things, or property belonging to or in use by the Department of Hawaiian Home Lands pertaining to such financial transactions and necessary to facilitate the audit.

(Pub. L. 104–330, title VIII, §822, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2895, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2989; amended Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted identical sections 822 of Pub. L. 104–330. This section is based on the text of section 822 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

Amendments

2004—Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office" in section catchline.

§4242. Reports to Congress

(a) In general

Not later than 90 days after the conclusion of each fiscal year in which assistance under this subchapter is made available, the Secretary shall submit to Congress a report that contains—

(1) a description of the progress made in accomplishing the objectives of this subchapter;

(2) a summary of the use of funds available under this subchapter during the preceding fiscal year; and

(3) a description of the aggregate outstanding loan guarantees under section 1715z–13b of title 12.

(b) Related reports

The Secretary may require the Director to submit to the Secretary such reports and other information as may be necessary in order for the Secretary to prepare the report required under subsection (a).

(Pub. L. 104–330, title VIII, §823, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2895, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2989.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted identical sections 823 of Pub. L. 104–330. This section is based on the text of section 823 of Pub. L. 104–330, as added by Pub. L. 106–569, §513.

§4243. Authorization of appropriations

There are authorized to be appropriated to the Department of Housing and Urban Development for grants under this subchapter such sums as may be necessary for each of fiscal years 2001, 2002, 2003, 2004, and 2005.

(Pub. L. 104–330, title VIII, §824, as added Pub. L. 106–568, title II, §203, Dec. 27, 2000, 114 Stat. 2895, and Pub. L. 106–569, title V, §513, Dec. 27, 2000, 114 Stat. 2989.)

Editorial Notes

Codification

Pub. L. 106–568, §203, and Pub. L. 106–569, §513, enacted substantially identical sections 824 of Pub. L. 104–330. This section is based on the text of section 824 of Pub. L. 104–330, as added by Pub. L. 106–569, §513. Section 824 of Pub. L. 104–330, as added by Pub. L. 106–568, §203, authorized appropriations for fiscal years 2000 to 2004, instead of fiscal years 2001 to 2005.