[Federal Register Volume 79, Number 179 (Tuesday, September 16, 2014)]
[Rules and Regulations]
[Page 55367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22051]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 89


Interim Guidance for Implementation of the Organizational 
Integrity of Entities Implementing Programs and Activities Under the 
Leadership Act

AGENCY: Office of Global Affairs (OGA), Department of Health and Human 
Services (HHS).

ACTION: Notice of interim guidance.

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SUMMARY: This document provides interim guidance on the implementation 
of section 301(f) of the Leadership Act in light of the Supreme Court's 
decision in Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, 
Inc., 133 S. Ct. 2321 (2013) (``AOSI decision''). While HHS awarding 
agencies have implemented the AOSI decision since its issuance, this 
document serves to clarify HHS policy. HHS is also currently developing 
an amendment to its regulations listed under ``Organizational Integrity 
of Entities Implementing Programs and Activities under the Leadership 
Act'' to ensure consistency with the decision. HHS has been 
coordinating its implementation activities with the Department of 
State, Office of the Global AIDS Coordinator (OGAC) and with the United 
States Agency for International Development (USAID). While issued 
through OGA, this guidance represents the views of the various agencies 
within HHS that issue awards with Leadership Act HIV/AIDS funds, 
namely, the Centers for Disease Control and Prevention, the National 
Institutes of Health, and the Health Resources and Services 
Administration.

DATES: Effective September 16, 2014.

FOR FURTHER INFORMATION CONTACT: Erin Eckstein, Office of Global 
Affairs, Department of Health and Human Services, Room 639H, 200 
Independence Avenue SW., Washington, DC 20201, Telephone (202) 205-
3569.

SUPPLEMENTARY INFORMATION:

Background

    Section 301(f) of the Leadership Act, subject to limited 
exceptions, prohibits the use of Leadership Act HIV/AIDS funds ``to 
provide assistance to any group or organization that does not have a 
policy explicitly opposing prostitution and sex trafficking.'' 
Interpreting the policy requirement, in 2010, HHS provided, through 
rulemaking, that, unless exempted through statute, contractors, 
grantees, applicants or awardees who receive Leadership Act funds for 
HIV/AIDS programs directly or indirectly from HHS must ``agree that 
they are opposed to the practices of prostitution and sex 
trafficking.'' 45 CFR 89.1(b) \1\.
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    \1\ Title 45, Subtitle A, Subchapter A, Part 89 in the 
Electronic Code of Federal Regulations (http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=70aabffdee1bdb20e22fdde1663cbbaa&ty=HTML&h=L&r=PART&n=45y1.0.1.1.46).
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    In 2005, section 301(f) was challenged as unconstitutional, and in 
2013, the Supreme Court affirmed a Second Circuit decision that upheld 
a lower court's preliminary injunction prohibiting the application of 
the policy requirement to domestic (United States) organizations, 
finding that such a condition of federal funding violates the First 
Amendment. Consistent with the Supreme Court's decision, the 
requirement to have a specific policy as stated in section 301(f) no 
longer applies to U.S. organizations.
    In coordination with OGAC and USAID, HHS has ceased applying the 
policy pledge requirement to U.S. organizations, whether they are prime 
recipients or subrecipients of Leadership Act HIV/AIDS funds. However, 
the requirement remains applicable to foreign organizations.

Guidance

    U.S. organizations that are prime recipients or subrecipients of 
Leadership Act HIV/AIDS funds are not required to have a policy 
explicitly opposing prostitution and sex trafficking. The Department of 
Health and Human Services applies the requirement of the Leadership Act 
that organizations have a policy explicitly opposing prostitution and 
sex trafficking only to foreign organizations, including foreign 
affiliates of United States organizations, whether prime recipients or 
subrecipients, unless exempted by the Act or implementing regulations. 
See, e.g., 48 CFR 352.270-8 (2010).
    HHS is currently developing an amendment to its regulation at 45 
CFR part 89 to reflect the AOSI decision and HHS's implementation of 
that decision with respect to U.S. organizations and foreign 
organizations that are recipients of Leadership Act HIV/AIDS funds.

    Authority:  45 CFR part 89; Section 301(f) of the United States 
Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003, 
Public Law 108-25, as amended, 22 U.S.C. 7601-7682 (``Leadership 
Act'').

    Dated: September 11, 2014.
Jimmy Kolker,
Assistant Secretary for Global, Affairs, Office of Global Affairs.
[FR Doc. 2014-22051 Filed 9-12-14; 11:15 am]
BILLING CODE 4150-38-P