[Federal Register Volume 72, Number 143 (Thursday, July 26, 2007)]
[Notices]
[Pages 41076-41077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3658]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES


Office of Global Health Affairs; Guidance Regarding Section 
301(f) of the United States Leadership Against HIV/AIDS, Tuberculosis 
and Malaria Act of 2003

AGENCY: Office of Global Health Affairs, HHS.

ACTION:  Guidance.

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SUMMARY: Section 301(f) of the United States Leadership Against HIV/
AIDS, Tuberculosis and Malaria Act of 2003 (the ``Leadership Act''), 
P.L. No. 108-25 (May 27, 2003), 22 U.S.C. 7631(f), prohibits the award 
of grants, contracts or cooperative agreements for activities funded 
under the Act to any organization that does not have an explicit policy 
opposing prostitution and sex trafficking. Section 301(f) states as 
follows:

    Limitation.--No funds made available to carry out this Act, or 
any amendment made by this Act, may be used to provide assistance to 
any group or organization that does not have a policy explicitly 
opposing prostitution and sex trafficking.

    The following guidance provides additional information on the 
policy requirement expressed in this law for entities that receive 
grants, contracts, or cooperative agreements from the U.S. Department 
of Health and Human Services (``HHS'') to implement programs or 
projects under the authority of the Leadership Act. Specifically, it 
describes the legal, financial, and organizational separation that 
should exist between these recipients of HHS funds and an affiliate 
organization that engages in activities that are not consistent with a 
policy opposing prostitution and sex trafficking.

FOR FURTHER INFORMATION CONTACT: Maggie Wynne, Office of Global Health 
Affairs, Hubert H. Humphrey Building, 200 Independence Avenue, SW., 
Room 639H, Washington, DC 20201.

SUPPLEMENTARY INFORMATION: This guidance is designed to provide 
additional clarity for Contracting and Grant officers, Contracting 
Officers' Technical Representatives, Program Officials and implementing 
partners (e.g., grantees, contractors) of HHS regarding the application 
of language in Notices of Availability, Requests for Proposals, and 
other documents pertaining to the policy requirement expressed in 22 
U.S.C. 7631(f), which provides that organizations receiving Leadership 
Act funds must have a policy explicitly opposing prostitution and sex 
trafficking (the ``policy requirement'').
    In enacting the statute from which this requirement originates, the 
Leadership Act, Congress developed a framework to combat the global 
spread of HIV/AIDS, tuberculosis, and malaria. As a part of that Act, 
to ensure that the Government's organizational partners will not 
undermine this goal through the promotion of counterproductive 
activities, the Leadership Act provides that all funding recipients, 
subject to limited exceptions, must have a policy explicitly opposing 
prostitution and sex trafficking. It is critical to the effectiveness 
of Congress's plan and to the U.S. Government's foreign policy 
underlying this effort, that the integrity of Leadership Act programs 
and activities implemented by organizations receiving Leadership Act 
funds is maintained, and that the U.S. Government's message opposing 
prostitution and sex trafficking is not confused by conflicting 
positions of these organizations.
    Accordingly, the U.S. Government provides this ``Organizational 
Integrity'' Guidance to clarify that the Government's organizational 
partners that have adopted a policy opposing prostitution and sex-
trafficking may, consistent with the policy requirement, maintain an 
affiliation with separate organizations that do not have such a policy, 
provided that such affiliations do not threaten the integrity of the 
Government's programs and its message opposing prostitution and sex 
trafficking, as specified in this guidance. To maintain program 
integrity, adequate separation as outlined in this guidance is required 
between an affiliate which expresses views on prostitution and sex 
trafficking contrary to the government's message and any federally-
funded partner organization.
    The criteria for affiliate independence in this guidance is modeled 
on criteria upheld as facially constitutional by the U.S. Court of 
Appeals for the Second Circuit in Velzquez v. Legal Services 
Corporation, 164F.3d 757,767 (2d cir. 1999), and Brooklyn Legal 
Services Corp. v. Legal Services Corp., 462 F.3d 219, 229-33 (2d Cir. 
2006), cases involving similar organization-wide limitations applied to 
recipients of federal funding.
    This guidance clarifies that an independent organization affiliated 
with a recipient of Leadership Act funds need not have a policy 
explicitly opposing prostitution and sex trafficking for the recipient 
to maintain compliance with the policy requirement. The independent 
affiliate's position on these issues will have no effect on the 
recipient organization's eligibility for Leadership Act funds, so long 
as the affiliate satisfies the criteria for objective integrity and 
independence detailed in the guidance. By ensuring adequate separation 
between the recipient and affiliate organizations, these criteria guard 
against a public perception that the affiliate's views on prostitution 
and sex-trafficking maybe attributed to the recipient organization and 
thus to the government, thereby avoiding the risk of confusing the 
Government's message opposing prostitution and sex trafficking.
    This guidance may be shared with HHS implementing partners. 
Guidance: HHS contractors, grantees and recipients of cooperative 
agreements (``Recipients'') must have objective integrity and 
independence from any affiliated organization that engages in 
activities inconsistent with a policy opposing prostitution and sex 
trafficking (``restricted activities''). A recipient will be found to 
have objective integrity and independence from such organization if:
    (1) The affiliated organization is a legally separate entity;
    (2) The affiliated organization receives no transfer or Leadership 
Act funds, and Leadership Act funds do not subsidize restricted 
activities; and
    (3) The Recipient is physically and financially separate from the 
affiliated organization. Mere bookkeeping separation of Leadership Act 
funds from other funds is not sufficient. HHS will determine, on a 
case-by-case basis and based on the totality of the facts, whether 
sufficient physical and financial separation exists. The presence or 
absence of any one or more factors will not be determinative. Factors

[[Page 41077]]

relevant to this determination shall include but will not be limited 
to:
    (i) The existence of separate personnel, management, and 
governance;
    (ii) The existence of separate accounts, accounting records, and 
timekeeping records;
    (iii) The degree of separation from facilities, equipment and 
supplies used by the affiliated organization to conduct restricted 
activities, and the extent of such restricted activities by the 
affiliate;
    (iv) The extent to which signs and other forms of identification 
which distinguish the Recipient from the affiliated organization are 
present, and signs and materials that could be associated with the 
affiliated organization or restricted activities are absent; and
    (v) The extent to which HHS, the U.S. Government and the project 
name are protected from public association with the affiliated 
organization and its restricted activities in materials such as 
publications, conference and press or public statements.
    EFFECTIVE DATE: This guidance is effective on the final date of 
publication.

    Dated: July 23, 2007.
William R. Steiger,
Director.
[FR Doc. 07-3658 Filed 7-23-07; 11:59 am]
BILLING CODE 4150-38-M