[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