Organizational Integrity of Entities That Are Implementing Programs and Activities Under the Leadership Act, 18760-18764 [2010-8378]
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Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
petition for judicial review may be filed,
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List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Particulate matter, Reporting and
recordkeeping requirements.
Dated: February 25, 2010.
Walter W. Kovalick Jr.,
Acting Regional Administrator, Region 5.
■
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart P—Indiana
2. Section 52.770 is amended by
adding paragraph (c)(194) to read as
follows:
■
§ 52.770
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*
*
*
*
(c) * * *
(194) On December 31, 2008, Indiana
submitted a Commissioner’s Order that
provided an alternative monitoring plan
for Indianapolis Power and Light—
Harding Street Generating Station in
Marion County that is being
incorporated into its SIP. The
alternative monitoring requirements
allow the use of a particulate matter
continuous emissions monitoring
system in place of a continuous opacity
monitor.
(i) Incorporation by reference.
Commissioner’s Order #2008–02 for
Indianapolis Power and Light as issued
by the Indiana Department of
Environmental Management on October
31, 2008.
[FR Doc. 2010–8295 Filed 4–12–10; 8:45 am]
BILLING CODE 6560–50–P
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45 CFR Part 89
RIN 0991–AB60
Organizational Integrity of Entities That
Are Implementing Programs and
Activities Under the Leadership Act
AGENCY: U.S. Department of Health and
Human Services.
ACTION: Final rule.
SUMMARY: The Department is issuing a
final rule establishing the organizational
integrity requirements for Federal
funding recipients under the United
States Leadership Against HIV/AIDS,
Tuberculosis, and Malaria Act of 2003
(Leadership Act). This rule requires that
funding announcements and agreements
with funding recipients include a clause
that states that the recipient is opposed
to prostitution and sex trafficking
because of the psychological and
physical risks they pose for women,
men and children. This rule also
modifies the requirements for recipientaffiliate separation and eliminates the
requirement for an additional
certification by funding recipients.
DATES: This rule is effective May 13,
2010.
FOR FURTHER INFORMATION CONTACT: John
Monahan, Office of Global Health
Affairs, Hubert H. Humphrey Building,
Room 639H, 200 Independence Avenue,
SW., Washington, DC 20201, Tel: 202–
690–6174, E-mail: ogha.os@hhs.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Identification of plan.
*
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
A. Statutory Background
Congress enacted the United States
Leadership Against HIV/AIDS,
Tuberculosis, and Malaria Act of 2003
(‘‘Leadership Act’’) in May 2003. Public
Law 108–25 [22 U.S.C. 7601–7682]. The
Leadership Act contains limitations on
the use of funds provided to carry out
HIV/AIDS activities under the Act.
Subsection 7631(f) 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.’’ Subsection 7631(f) was
amended in 2004 to exempt certain
public international organizations.
Consolidated Appropriations Act of
2004, Public Law 108–199, Div. D, Title
II (2004).
The United States government is
opposed to prostitution and sex
trafficking. In enacting the Leadership
Act, Congress specifically found
‘‘Prostitution and other sexual
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victimization are degrading to women
and children and it should be the policy
of the United States to eradicate such
practices. The sex industry, the
trafficking of individuals into such
industry, and sexual violence are
additional causes of and factors in the
spread of the HIV/AIDS epidemic.’’
Leadership Act § 2(23) Public Law 108–
25. Congressional hearings at the time of
the Act showed a high incidence of HIV
among prostitutes and that prostitution
fueled the demand for sex trafficking.
Accordingly, Congress unambiguously
called for the elimination of prostitution
and sex-trafficking as part of the United
States’ fight against HIV/AIDS.
Section 301(f) [22 U.S.C. 7631(f)] of
the Leadership Act requires that funding
recipients have a policy explicitly
opposing prostitution and sex
trafficking. Additionally, recipients of
Leadership Act funds cannot engage in
activities that are inconsistent with their
opposition to prostitution and sex
trafficking.
Congress did not dictate the means by
which the Department would
implement the policy and the
Congressional intent of the Act was not
to overburden applicants with
unnecessary requirements. For example,
during legislative debate on the
Leadership Act, in response to a
question from Senator Leahy on the
Senate floor regarding section 301(f),
Senator Frist stated that ‘‘a statement in
the contract or grant agreement between
the U.S. Government and such
organization that the organization is
opposed to the practices of prostitution
and sex trafficking because of the
psychological and physical risks they
pose for women * * * would satisfy the
intent of the provision.’’ 149 CONG.
REC. S6,457 (daily ed. May 15, 2003)
(statement of Sen. Frist).
B. Litigation and Regulatory Background
The Leadership Act was challenged
on constitutional grounds in two
separate lawsuits after its enactment. In
a case filed in the U.S. District Court for
the District of Columbia, plaintiffs
claimed the anti-prostitution provision
compelled speech when the
organization had no policy either
opposing or supporting prostitution.
DKT Int’l v. United States Agency for
Int’l Dev. (USAID), 435 F. Supp. 2d 5
(D.D.C. 2006). Ultimately, the U.S. Court
of Appeals for the District of Columbia
Circuit upheld the anti-prostitution
provision, holding that the government
had a legitimate interest in ensuring that
organizations chosen to communicate
its particular viewpoint did so in an
efficient and effective fashion. DKT Int’l
v. USAID, 477 F.3d 758 (DC Cir. 2007).
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In upholding this provision, the DC
Circuit relied in part on the fact that
nothing prevented the plaintiff from
itself remaining neutral and setting up
a subsidiary that had a policy opposing
prostitution to receive government
funds.
A second case was filed in the U.S.
District Court for the Southern District
of New York, which granted an
injunction against the Government on
the basis that the statute was
unconstitutional because it did not
leave open ‘‘adequate alternative
channels for communication.’’ Alliance
for Open Soc’y Int’l (AOSI) v. USAID,
430 F. Supp. 2d 222 (S.D.N.Y. 2006). On
appeal, the U.S. Court of Appeals for the
Second Circuit remanded the case, in
light of newly issued guidance by the
Government providing for organizations
to work with affiliates that would not be
subject to the Leadership Act’s
requirements. AOSI v. USAID, 254 Fed.
Appx. 843 (2d Cir. 2007). Upon remand,
however, the District Court maintained
the injunction and allowed additional
plaintiffs to join the suit. AOSI v.
USAID, 570 F. Supp. 2d 533 (S.D.N.Y.
2008). The Government has appealed
that decision.
Prior to and concurrent with the
litigation, the Department took a
number of steps to implement the
prostitution policy requirement under
the statute. By December 2003, HHS had
begun including a requirement in all of
its grant and cooperative agreement
funding announcements that all
recipients under the Leadership Act of
HIV/AIDS funds have a policy explicitly
opposing prostitution and sex
trafficking. On July 23, 2007, HHS
published ‘‘Organizational Integrity
Guidance’’ in the Federal Register to
clarify the scope of the policy
requirement. The guidance allowed
Leadership Act HIV/AIDS funding
recipients to have relationships with
organizations that engage in activities
inconsistent with a policy against
prostitution and sex trafficking. 72 FR
41,076 (7/26/2007). HHS followed the
issuance of this guidance with a notice
of proposed rulemaking (NPRM) on
April 17, 2008, 73 FR 29,096, which
initiated the notice-and-comment
rulemaking process. The final rule was
published on December 24, 2008, 73 FR
78,997, corrected on January 16, 2009,
74 FR 2,888 (codified at 45 CFR part 89),
and took effect on January 20, 2009. The
final rule established the legal,
financial, and organizational standards
for determining whether a funding
recipient had objective integrity and
independence from an affiliated
organization that engaged in activities
inconsistent with a policy opposing
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prostitution and sex trafficking. The
final rule also required all Leadership
Act HIV/AIDS funding recipients,
including sub-recipients, to certify
compliance with the rule.
On November 23, 2009, the
Department again issued a notice of
proposed rulemaking to modify the final
rule of January 20, 2009. 74 FR 61096
(11/23/2009). The proposed amendment
to the present rule modifies the criteria
for evaluating the separation between
recipients and affiliated organizations,
while complying with the statutory
requirement regarding opposition to
prostitution and sex trafficking. It is
essential to the Leadership Act that
recipients of funds who implement HIV/
AIDS programs and activities do not
create confusion as to the U.S.
Government’s message opposing
prostitution and sex trafficking by
undertaking activities or advocating
positions that conflict with this policy.
However, as noted above, the
Department has determined that the
Congressional intent of the Leadership
Act can be effectuated through the
application of standards that allow more
flexibility for funding recipients than
the present guidelines.
II. Description of Final Rule and
Response to Comments
The Department received twentyseven comments in response to the
proposed rule, including one comment
filed after the close of the comment
period which was also considered.
Comments came from individuals and
organizations both opposed to and in
favor of changes to the previous rule.
Several comments were not responsive
to the proposed rule and therefore are
not addressed. Several commenters
stated the policy requirement was
inconsistent with the Leadership Act or
improperly conflated prostitution with
sex trafficking. However, the final rule
is consistent with section 301(f) of the
Act which requires organizations
receiving funds to have a policy
opposing ‘‘prostitution and sex
trafficking.’’ Other comments are
discussed under applicable headings.
Section 89.1 Applicability
This section provides that the policy
requirement applies to all funding
recipients not exempted by the
Leadership Act. Currently, those
organizations exempted are the Global
Fund to Fight AIDS, Tuberculosis, and
Malaria, the World Health Organization,
the International AIDS Vaccine
Initiative and any other United Nations
agency.
This section also states what is
required of HIV/AIDS funding
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18761
recipients under the Leadership Act.
The Department shall include in any
HIV/AIDS public funding
announcement under the Leadership
Act the requirement that recipients
agree that they are opposed to the
practices of prostitution and sex
trafficking because of the psychological
and physical risks they pose for women,
men and children. This statement will
also be included in any Leadership Act
HIV/AIDS funding instrument entered
into with the recipient. As explained,
the Department believes this statement
is consistent with the anti-prostitution
provision and the Congressional intent
behind it, as well as other goals of the
Act.
The Department will work with the
Department of State and with other
agencies implementing the Leadership
Act to ensure consistent application of
its requirements.
Section 89.2 Definitions
This section defines terms used in
this rule. It retains several terms from
the previous iteration of the rule such as
‘‘commercial sex act’’ and ‘‘prostitution.’’
However, given the regulation now
requires the anti-prostitution statement
only in the announcement and the
awarding instrument to the ‘‘recipient,’’
it deletes the terms ‘‘prime recipient’’
and ‘‘subrecipient.’’ A definition of
‘‘recipient’’ that mirrors the former
‘‘prime recipient,’’ directly funded
entity, is included. While the section
deletes the definition of subrecipient,
any organization receiving Leadership
Act HIV/AIDS funds must comply with
the statutory requirements.
Several commenters objected to the
lack of definition for a number of terms
such as ‘‘affiliate,’’ ‘‘restricted activities,’’
and ‘‘to the extent practicable.’’ As
explained below, the Department’s
commitment to a case-by-case approach
in this area will allow flexibility based
on the circumstances presented. Some
organizations may be better able to
separate themselves from an affiliate ‘‘in
the circumstances.’’ Conditions in some
countries may make it difficult for
organizations to meet certain factors
relevant to determining whether
sufficient separation exists. Therefore,
any attempt to strictly prescribe the
degree of separation would undermine
the purpose of the regulation.
Similarly, the Department does not
define the term ‘‘affiliated
organizations.’’ In common usage,
‘‘affiliate’’ means ‘‘to bring into close
connection as a member or branch.’’
Merriam-Webster’s Collegiate Dictionary
at 21 (11th ed. 2007). Legal affiliation is
only one aspect of this relationship. The
use of separate personnel, accounting,
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timekeeping, space and identifying
signage are also factors, among others.
In determining whether there is
sufficient separation, the Department
will not base its decision solely on
whether an entity is a legally separate
‘‘affiliate,’’ but instead will consider the
likelihood that the degree of separation
between a recipient of Leadership Act
HIV/AIDS funds and other connected
organizations that are not required to
have a policy opposing prostitution and
sex trafficking will not undermine or
confuse the Government’s position in
opposition to prostitution and sex
trafficking.
As noted by multiple comments, the
proposed rule did not define ‘‘restricted
activities.’’ Several comments expressed
concerns that organizations that work
with the victims of prostitution and sex
trafficking would stop providing
services that could prevent HIV/AIDS
because of their fear that the
Government would determine the
activities were ‘‘restricted activities,’’
and revoke Federal funding. Several
comments also sought approval of
particular hypotheticals. The
Department does not believe it should
provide opinions on hypothetical
scenarios because information may be
incomplete. While the Department does
not define restricted activities in the
rule, working with other agencies
implementing the Leadership Act, the
U.S. Government intends to provide
broad information on types of activities
that illustrate what would be covered.
Section 89.3 Organizational Integrity
of the Recipients
This section sets forth the separation
requirements for funding recipients who
wish to affiliate with organizations that
do not have a policy opposing
prostitution and sex trafficking.
Specifically, the final rule no longer
requires that an affiliate be a legally
separate entity. As stated in the
November 23, 2009, NPRM, separate
legal incorporation in each of the host
countries where a recipient might work
could prove complicated. Additionally,
the inherent difficulty of the
Department analyzing multiple foreign
legal requirements makes this factor
unworkable as a determinative criterion.
The rule also allows greater flexibility
for funding recipients to demonstrate
organizational separation from entities
which do not have a policy opposing
sex trafficking and prostitution. As
noted in the NPRM, these changes
include changing separate personnel
requirements to allocation of personnel
requirements, and the deletion of
separate management and governance
requirements.
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Many commenters believe that the
proposed rule, even with modification,
unlawfully compels speech in violation
of the First Amendment, and therefore
cannot be enforced against domestic
entities. The Department disagrees. As
explained above, the DC Circuit Court of
Appeals upheld the Leadership Act
against constitutional claims even prior
to the promulgation of implementing
regulations. The court in that case
specifically relied on the fact that
entities were free to set up affiliates
which ‘‘would qualify for government
funds as long as the two organizations’
activities were kept sufficiently
separate.’’ DKT Int’l v. USAID, 477 F.3d
at 763. Likewise, the Supreme Court and
the Second Circuit Court of Appeals
have upheld more burdensome
regulations where funding recipients
had ‘‘adequate alternative channels for
protected expression.’’ Brooklyn Legal
Servs. Corp. v. Legal Serv’s Corp., 462
F.3d 219, 231 (2d Cir. 2006); Rust v.
Sullivan, 500 U.S. 173 (1991).
The goal in implementing the revised
rule on the prostitution policy provision
is to ensure that the Government’s
position opposing prostitution and sex
trafficking is not undermined while
allowing Leadership Act funding
recipients greater flexibility in finding
alternative channels for protected
expression in diverse areas for diverse
populations. Given the numerous
factual situations that may arise, the
Department has deliberately adopted a
case-by-case approach in this area,
recognizing that circumstances in some
countries may make it difficult for
organizations to satisfy some of the
factors demonstrating objective integrity
and independence. The Department also
plans to work with recipients to address
individual questions regarding the
separation criteria, and to help remedy
violations before taking enforcement
action. We believe these steps will
ensure recipients have adequate
channels for engaging in protected
speech while still adhering to the
requirement of the Leadership Act that
recipient organizations be opposed to
the practices of prostitution and sex
trafficking because of the psychological
and physical risks they pose for women,
men and children.
Several commenters also objected to
the Department’s listing of only five
factors relevant to the integrity analysis
when the regulation allows that other
unlisted factors may be taken into
account. Again, the relevant inquiry will
not be the presence or absence of any
particular factor, but the ‘‘totality of
circumstances,’’ under which the
recipient organization is shown to be
sufficiently separate from an affiliate
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organization that does not have a policy
opposing prostitution. The court
decisions previously discussed all
upheld similar regulations where the
Government specifically stated the
factors were ‘‘not limited to’’ those set
forth in regulation.
Several commenters expressed
concern that the extent of restricted
activities by the affiliated organization
would be a factor considered by the
Department. Given that the purpose of
affiliate separation requirements is to
determine when an affiliated
organization is so closely tied to the
funding recipient that a reasonable
observer would attribute its activities to
the funding recipient, the Department
agrees that the extent of restricted
activities by a separate entity should not
be considered, and therefore has deleted
that part of Subsection 89.3(b)(4).
Several commenters believed the
proposed rule should mirror the
Department’s non-discrimination
regulations for faith based organizations.
Under these regulations, the
commenters insist, ‘‘religious activities’’
require only time or space separation.
However, the faith based regulations
rely on different statutory and
constitutional foundations. The faith
based regulations allow religious and
non-religious organizations to compete
equally in applying for Federal funds as
long as time, place and other restrictions
on religious activities are met consistent
with the Establishment Clause of the
U.S. Constitution. By contrast, the
Leadership Act requires all funding
recipients, regardless of the character of
their organization, to have a policy
against prostitution and sex trafficking.
The Leadership Act requires that HIV/
AIDS funding recipients act consistently
with their opposition to prostitution and
sex trafficking. This requirement
necessitates greater separation between
funding recipients and organizations
that engage in activities inconsistent
with an opposition to prostitution and
sex trafficking, than the faith based
regulations require between
governmental programs operated by a
faith based organization and its religious
activities. The Department believes this
rule best meets the goals of the
Leadership Act’s anti-prostitution
provision without infringing upon the
constitutional rights of recipients.
Deleted Section 89.3 Certification
As proposed, former section 89.3
requiring annual certification of
compliance with the anti-prostitution
provision by both recipients and subrecipients has been deleted. The
Department does not believe such
procedures are necessary for compliance
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under the Leadership Act. Recipients
are still required to follow the dictates
of the Leadership Act and maintain the
required separation from affiliates that
engage in activities inconsistent with an
opposition to prostitution and sex
trafficking. The required notice in the
public announcement and awarding
instrument will provide notice to
funding recipients of the Leadership
Act’s anti-prostitution requirements and
allow an opportunity to engage the
Department in further dialogue on the
issue if an applicant desires.
Those commenting on this deletion
suggested the lack of certification would
make the Leadership Act unenforceable,
adding that the negligible cost of
certification is far outweighed by its
benefits. The Department disagrees. The
Department is not hampered in its
monitoring or enforcement by the lack
of certification, and may still conduct
audits of discretionary grant programs
whenever they are warranted to ensure
compliance with program requirements.
Nothing in the Leadership Act requires
certification by recipients or prevents
enforcement when those requirements
are not met. Given the cost to the public
of administering the certification and
the negligible benefit to the Department,
deleting the requirement comports with
the goals of the Paperwork Reduction
Act to ‘‘minimize the paperwork burden
* * * from the collection of information
by and for the Federal Government.’’ 35
U.S.C. 3501.
III. Impact Analysis
Executive Order 12866 and Paperwork
Reduction Act
As explained in the NPRM to this
final rule, this rule is a ‘‘significant
regulatory action’’ under Executive
Order 12866, section 3(f)(4), because it
raises novel legal or policy issues that
arise out of legal mandates and the
President’s priorities, and accordingly,
the Office of Management and Budget
has reviewed it.
This rule modifies a previously issued
final rule on the same subject, published
on December 24, 2008, in the Federal
Register. The modification reduces the
burden on applicants and funding
recipients in complying with the policy.
The December 24, 2008, final rule
required statements and formal
documentation from recipients before
they could receive Leadership Act HIV/
AIDS funds. The Impact Analysis and
the Paperwork Reduction Act in the
December 24, 2008, final rule estimated
the burden and cost of writing the
additional documentation. This rule no
longer requires this additional
documentation. As a result, applicants
for Leadership Act HIV/AIDS funds will
no longer have to incur the costs
outlined in the December 24, 2008,
impact analysis and paperwork burden
analysis.
Therefore, the rule should relieve
regulated entities by the amounts
specified in the December 24, 2008,
final rule. We are republishing the
impact table from the December 24,
2008, final rule. The burden estimate
was $7,337 calculated by assuming an
additional half hour of clerical work to
prepare documentation on behalf of 555
grantees at an hourly rate of $ 26.44.
Instrument
Number of
respondents
Number of
responses
per
respondent
Average
burden hours
per response
Average cost
per hour
Total burden
hours
Total burden
cost
Certifications ............................................
555
1
0.5
$26.44
277.5
$7,337
List of Subjects in 45 CFR Part 89
§ 89.1
Administrative practice and
procedure, Federal aid programs, Grants
programs, Grants administration.
Dated: January 22, 2010.
John Monahan,
Interim Director, Office of Global Health
Affairs.
Dated: January 22, 2010.
Kathleen Sebelius,
Secretary.
Therefore, under the authority of
section 301(f) of the Leadership Act, as
amended, and for the reasons stated in
the preamble, the Department revises 45
CFR part 89 to read as follows:
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■
PART 89—ORGANIZATIONAL
INTEGRITY OF ENTITIES
IMPLEMENTING PROGRAMS AND
ACTIVITIES UNDER THE LEADERSHIP
ACT
Sec.
89.1
89.2
89.3
Applicability and requirements.
Definitions.
Organizational integrity of recipients.
Authority: Section 301(f) of the Leadership
Act, Pub. L. 108–25, as amended (22 U.S.C.
7631(f)) and 5 U.S.C. 301.
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Applicability and requirements.
(a) This regulation applies to all
recipients unless they are exempted
from the policy requirement by the
Leadership Act or other statute.
(b) The Department of Health and
Human Services (HHS) components
shall include in the public
announcement of the availability of the
grant, cooperative agreement, contract,
or other funding instrument involving
Leadership Act HIV/AIDS funds the
requirement that recipients agree that
they are opposed to the practices of
prostitution and sex trafficking because
of the psychological and physical risks
they pose for women, men, and
children. This requirement shall also be
included in the award documents for
any grant, cooperative agreement or
other funding instrument involving
Leadership Act HIV/AIDS funds entered
into with the recipient.
§ 89.2
Definitions.
For the purposes of this part:
Commercial sex act means any sex act
on account of which anything of value
is given to or received by any person.
Leadership Act means the United
States Leadership Against HIV/AIDS,
Tuberculosis, and Malaria Act of 2003,
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Public Law 108–25, as amended (22
U.S.C. 7601–7682).
Prostitution means procuring or
providing any commercial sex act.
Recipients are contractors, grantees,
applicants or awardees who receive
Leadership Act funds for HIV/AIDS
programs directly or indirectly from
HHS.
Sex trafficking means the recruitment,
harboring, transportation, provision, or
obtaining of a person for the purpose of
a commercial sex act.
§ 89.3 Organizational integrity of
recipients.
A recipient must have objective
integrity and independence from any
affiliated organization that engages in
activities inconsistent with the
recipient’s opposition to the practices of
prostitution and sex trafficking because
of the psychological and physical risks
they pose for women, men and children
(‘‘restricted activities’’). A recipient will
be found to have objective integrity and
independence from such an
organization if:
(a) The affiliated organization receives
no transfer of Leadership Act HIV/AIDS
funds, and Leadership Act HIV/AIDS
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funds do not subsidize restricted
activities; and
(b) The recipient is, to the extent
practicable in the circumstances,
separate from the affiliated organization.
Mere bookkeeping separation of
Leadership Act HIV/AIDS 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 separation exists. The
presence or absence of any one or more
factors relating to legal, physical, and
financial separation will not be
determinative. Factors relevant to this
determination shall include, but not be
limited to, the following:
(1) Whether the organization is a
legally separate entity;
(2) The existence of separate
personnel or other allocation of
personnel that maintains adequate
separation of the activities of the
affiliated organization from the
recipient;
(3) The existence of separate
accounting and timekeeping records;
(4) The degree of separation of the
recipient’s facilities from facilities in
which restricted activities occur; and
(5) The extent to which signs and
other forms of identification that
distinguish the recipient from the
affiliated organization are present.
[FR Doc. 2010–8378 Filed 4–12–10; 8:45 am]
BILLING CODE 4150–38–P
50 CFR Part 92
[FWS–R7–MB–2009–0082; 91200–1231–
9BPP–L2]
RIN 1018–AW67
Migratory Bird Subsistence Harvest in
Alaska; Harvest Regulations for
Migratory Birds in Alaska During the
2010 Season
wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Final rule.
SUMMARY: The U.S. Fish and Wildlife
Service (Service or we) establishes
migratory bird subsistence harvest
regulations in Alaska for the 2010
season. These regulations enable the
continuation of customary and
traditional subsistence uses of migratory
birds in Alaska and prescribe regional
information on when and where the
harvesting of birds may occur. These
regulations were developed under a comanagement process involving the
Jkt 220001
Why Is This Rulemaking Necessary?
This rulemaking is necessary because,
by law, the migratory bird harvest
season is closed unless opened by the
Secretary of the Interior, and the
regulations governing subsistence
harvest of migratory birds in Alaska are
subject to public review and annual
approval. This rule establishes
regulations for the taking of migratory
birds for subsistence uses in Alaska
during the spring and summer of 2010.
This rule lists migratory bird season
openings and closures in Alaska by
region.
Background information, including
past events leading to this rulemaking,
accomplishments since the Migratory
Bird Treaties with Canada and Mexico
were amended, and a history addressing
conservation issues can be found in the
following Federal Register documents:
Fish and Wildlife Service
14:59 Apr 12, 2010
SUPPLEMENTARY INFORMATION:
How Do I Find the History of These
Regulations?
DEPARTMENT OF THE INTERIOR
VerDate Nov<24>2008
Service, the Alaska Department of Fish
and Game, and Alaska Native
representatives. This rulemaking is
necessary because the regulations
governing the subsistence harvest of
migratory birds in Alaska are subject to
annual review. This rulemaking
establishes region-specific regulations
that go into effect April 13, 2010 and
expire August 31, 2010.
DATES: The amendments to subpart D of
50 CFR part 92 are effective April 13,
2010, through August 31, 2010.
FOR FURTHER INFORMATION CONTACT: Fred
Armstrong, (907) 786–3887, or Donna
Dewhurst, (907) 786–3499, U.S. Fish
and Wildlife Service, 1011 E. Tudor
Road, Mail Stop 201, Anchorage, AK
99503.
FEDERAL REGISTER citation
Date
August 16, 2002 ..............
July 21, 2003 ...................
April 2, 2004 ....................
April 8, 2005 ....................
February 28, 2006 ...........
April 11, 2007 ..................
March 14, 2008 ................
May 19, 2009 ...................
67
68
69
70
71
72
73
74
FR
FR
FR
FR
FR
FR
FR
FR
53511.
43010.
17318.
18244.
10404.
18318.
13788.
23336.
These documents, which are all final
rules setting forth the annual harvest
regulations, are available at https://
alaska.fws.gov/ambcc/regulations.htm.
What Is the Process for Issuing
Regulations for the Subsistence Harvest
of Migratory Birds in Alaska?
The U.S. Fish and Wildlife Service
(Service or we) establishes migratory
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
bird subsistence harvest regulations in
Alaska for the 2010 season. These
regulations enable the continuation of
customary and traditional subsistence
uses of migratory birds in Alaska and
prescribe regional information on when
and where the harvesting of birds may
occur. These regulations were
developed under a co-management
process involving the Service, the
Alaska Department of Fish and Game,
and Alaska Native representatives.
We opened the process to establish
regulations for the 2010 spring and
summer subsistence harvest of
migratory birds in Alaska in a proposed
rule published in the Federal Register
on April 10, 2009 (74 FR 16339). While
that proposed rule dealt primarily with
the regulatory process for hunting
migratory birds for all purposes
throughout the United States, we also
discussed the background and history of
Alaska subsistence regulations,
explained the annual process for their
establishment, and requested proposals
for the 2010 season. The rulemaking
processes for both types of migratory
bird harvest are related, and the April
10, 2009, proposed rule explained the
connection between the two.
The Alaska Migratory Bird Comanagement Council (Co-management
Council) held a meeting in April 2009
to develop recommendations for
changes that would take effect during
the 2010 harvest season. These
recommendations were presented first
to the Flyway Councils and then to the
Service Regulations Committee at the
committee’s meeting on July 29 and 30,
2009.
Who Is Eligible To Hunt Under These
Regulations?
Eligibility to harvest under the
regulations established in 2003 was
limited to permanent residents,
regardless of race, in villages located
within the Alaska Peninsula, Kodiak
Archipelago, the Aleutian Islands, and
in areas north and west of the Alaska
Range (50 CFR 92.5). These geographical
restrictions opened the initial
subsistence migratory bird harvest to
about 13 percent of Alaska residents.
High populated areas such as
Anchorage, the Matanuska-Susitna and
Fairbanks North Star boroughs, the
Kenai Peninsula roaded area, the Gulf of
Alaska roaded area, and Southeast
Alaska were excluded from eligible
subsistence harvest areas.
Based on petitions requesting
inclusion in the harvest, in 2004, we
added 13 additional communities based
on criteria set forth in 50 CFR 92.5(c).
These communities were Gulkana,
Gakona, Tazlina, Copper Center,
E:\FR\FM\13APR1.SGM
13APR1
]]>Agencies
[Federal Register Volume 75, Number 70 (Tuesday, April 13, 2010)]
[Rules and Regulations]
[Pages 18760-18764]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-8378]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 89
RIN 0991-AB60
Organizational Integrity of Entities That Are Implementing
Programs and Activities Under the Leadership Act
AGENCY: U.S. Department of Health and Human Services.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department is issuing a final rule establishing the
organizational integrity requirements for Federal funding recipients
under the United States Leadership Against HIV/AIDS, Tuberculosis, and
Malaria Act of 2003 (Leadership Act). This rule requires that funding
announcements and agreements with funding recipients include a clause
that states that the recipient is opposed to prostitution and sex
trafficking because of the psychological and physical risks they pose
for women, men and children. This rule also modifies the requirements
for recipient-affiliate separation and eliminates the requirement for
an additional certification by funding recipients.
DATES: This rule is effective May 13, 2010.
FOR FURTHER INFORMATION CONTACT: John Monahan, Office of Global Health
Affairs, Hubert H. Humphrey Building, Room 639H, 200 Independence
Avenue, SW., Washington, DC 20201, Tel: 202-690-6174, E-mail:
ogha.os@hhs.gov.
SUPPLEMENTARY INFORMATION:
I. Background
A. Statutory Background
Congress enacted the United States Leadership Against HIV/AIDS,
Tuberculosis, and Malaria Act of 2003 (``Leadership Act'') in May 2003.
Public Law 108-25 [22 U.S.C. 7601-7682]. The Leadership Act contains
limitations on the use of funds provided to carry out HIV/AIDS
activities under the Act. Subsection 7631(f) 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.'' Subsection 7631(f) was amended in
2004 to exempt certain public international organizations. Consolidated
Appropriations Act of 2004, Public Law 108-199, Div. D, Title II
(2004).
The United States government is opposed to prostitution and sex
trafficking. In enacting the Leadership Act, Congress specifically
found ``Prostitution and other sexual victimization are degrading to
women and children and it should be the policy of the United States to
eradicate such practices. The sex industry, the trafficking of
individuals into such industry, and sexual violence are additional
causes of and factors in the spread of the HIV/AIDS epidemic.''
Leadership Act Sec. 2(23) Public Law 108-25. Congressional hearings at
the time of the Act showed a high incidence of HIV among prostitutes
and that prostitution fueled the demand for sex trafficking.
Accordingly, Congress unambiguously called for the elimination of
prostitution and sex-trafficking as part of the United States' fight
against HIV/AIDS.
Section 301(f) [22 U.S.C. 7631(f)] of the Leadership Act requires
that funding recipients have a policy explicitly opposing prostitution
and sex trafficking. Additionally, recipients of Leadership Act funds
cannot engage in activities that are inconsistent with their opposition
to prostitution and sex trafficking.
Congress did not dictate the means by which the Department would
implement the policy and the Congressional intent of the Act was not to
overburden applicants with unnecessary requirements. For example,
during legislative debate on the Leadership Act, in response to a
question from Senator Leahy on the Senate floor regarding section
301(f), Senator Frist stated that ``a statement in the contract or
grant agreement between the U.S. Government and such organization that
the organization is opposed to the practices of prostitution and sex
trafficking because of the psychological and physical risks they pose
for women * * * would satisfy the intent of the provision.'' 149 CONG.
REC. S6,457 (daily ed. May 15, 2003) (statement of Sen. Frist).
B. Litigation and Regulatory Background
The Leadership Act was challenged on constitutional grounds in two
separate lawsuits after its enactment. In a case filed in the U.S.
District Court for the District of Columbia, plaintiffs claimed the
anti-prostitution provision compelled speech when the organization had
no policy either opposing or supporting prostitution. DKT Int'l v.
United States Agency for Int'l Dev. (USAID), 435 F. Supp. 2d 5 (D.D.C.
2006). Ultimately, the U.S. Court of Appeals for the District of
Columbia Circuit upheld the anti-prostitution provision, holding that
the government had a legitimate interest in ensuring that organizations
chosen to communicate its particular viewpoint did so in an efficient
and effective fashion. DKT Int'l v. USAID, 477 F.3d 758 (DC Cir. 2007).
[[Page 18761]]
In upholding this provision, the DC Circuit relied in part on the fact
that nothing prevented the plaintiff from itself remaining neutral and
setting up a subsidiary that had a policy opposing prostitution to
receive government funds.
A second case was filed in the U.S. District Court for the Southern
District of New York, which granted an injunction against the
Government on the basis that the statute was unconstitutional because
it did not leave open ``adequate alternative channels for
communication.'' Alliance for Open Soc'y Int'l (AOSI) v. USAID, 430 F.
Supp. 2d 222 (S.D.N.Y. 2006). On appeal, the U.S. Court of Appeals for
the Second Circuit remanded the case, in light of newly issued guidance
by the Government providing for organizations to work with affiliates
that would not be subject to the Leadership Act's requirements. AOSI v.
USAID, 254 Fed. Appx. 843 (2d Cir. 2007). Upon remand, however, the
District Court maintained the injunction and allowed additional
plaintiffs to join the suit. AOSI v. USAID, 570 F. Supp. 2d 533
(S.D.N.Y. 2008). The Government has appealed that decision.
Prior to and concurrent with the litigation, the Department took a
number of steps to implement the prostitution policy requirement under
the statute. By December 2003, HHS had begun including a requirement in
all of its grant and cooperative agreement funding announcements that
all recipients under the Leadership Act of HIV/AIDS funds have a policy
explicitly opposing prostitution and sex trafficking. On July 23, 2007,
HHS published ``Organizational Integrity Guidance'' in the Federal
Register to clarify the scope of the policy requirement. The guidance
allowed Leadership Act HIV/AIDS funding recipients to have
relationships with organizations that engage in activities inconsistent
with a policy against prostitution and sex trafficking. 72 FR 41,076
(7/26/2007). HHS followed the issuance of this guidance with a notice
of proposed rulemaking (NPRM) on April 17, 2008, 73 FR 29,096, which
initiated the notice-and-comment rulemaking process. The final rule was
published on December 24, 2008, 73 FR 78,997, corrected on January 16,
2009, 74 FR 2,888 (codified at 45 CFR part 89), and took effect on
January 20, 2009. The final rule established the legal, financial, and
organizational standards for determining whether a funding recipient
had objective integrity and independence from an affiliated
organization that engaged in activities inconsistent with a policy
opposing prostitution and sex trafficking. The final rule also required
all Leadership Act HIV/AIDS funding recipients, including sub-
recipients, to certify compliance with the rule.
On November 23, 2009, the Department again issued a notice of
proposed rulemaking to modify the final rule of January 20, 2009. 74 FR
61096 (11/23/2009). The proposed amendment to the present rule modifies
the criteria for evaluating the separation between recipients and
affiliated organizations, while complying with the statutory
requirement regarding opposition to prostitution and sex trafficking.
It is essential to the Leadership Act that recipients of funds who
implement HIV/AIDS programs and activities do not create confusion as
to the U.S. Government's message opposing prostitution and sex
trafficking by undertaking activities or advocating positions that
conflict with this policy. However, as noted above, the Department has
determined that the Congressional intent of the Leadership Act can be
effectuated through the application of standards that allow more
flexibility for funding recipients than the present guidelines.
II. Description of Final Rule and Response to Comments
The Department received twenty-seven comments in response to the
proposed rule, including one comment filed after the close of the
comment period which was also considered. Comments came from
individuals and organizations both opposed to and in favor of changes
to the previous rule. Several comments were not responsive to the
proposed rule and therefore are not addressed. Several commenters
stated the policy requirement was inconsistent with the Leadership Act
or improperly conflated prostitution with sex trafficking. However, the
final rule is consistent with section 301(f) of the Act which requires
organizations receiving funds to have a policy opposing ``prostitution
and sex trafficking.'' Other comments are discussed under applicable
headings.
Section 89.1 Applicability
This section provides that the policy requirement applies to all
funding recipients not exempted by the Leadership Act. Currently, those
organizations exempted are the Global Fund to Fight AIDS, Tuberculosis,
and Malaria, the World Health Organization, the International AIDS
Vaccine Initiative and any other United Nations agency.
This section also states what is required of HIV/AIDS funding
recipients under the Leadership Act. The Department shall include in
any HIV/AIDS public funding announcement under the Leadership Act the
requirement that recipients agree that they are opposed to the
practices of prostitution and sex trafficking because of the
psychological and physical risks they pose for women, men and children.
This statement will also be included in any Leadership Act HIV/AIDS
funding instrument entered into with the recipient. As explained, the
Department believes this statement is consistent with the anti-
prostitution provision and the Congressional intent behind it, as well
as other goals of the Act.
The Department will work with the Department of State and with
other agencies implementing the Leadership Act to ensure consistent
application of its requirements.
Section 89.2 Definitions
This section defines terms used in this rule. It retains several
terms from the previous iteration of the rule such as ``commercial sex
act'' and ``prostitution.'' However, given the regulation now requires
the anti-prostitution statement only in the announcement and the
awarding instrument to the ``recipient,'' it deletes the terms ``prime
recipient'' and ``subrecipient.'' A definition of ``recipient'' that
mirrors the former ``prime recipient,'' directly funded entity, is
included. While the section deletes the definition of subrecipient, any
organization receiving Leadership Act HIV/AIDS funds must comply with
the statutory requirements.
Several commenters objected to the lack of definition for a number
of terms such as ``affiliate,'' ``restricted activities,'' and ``to the
extent practicable.'' As explained below, the Department's commitment
to a case-by-case approach in this area will allow flexibility based on
the circumstances presented. Some organizations may be better able to
separate themselves from an affiliate ``in the circumstances.''
Conditions in some countries may make it difficult for organizations to
meet certain factors relevant to determining whether sufficient
separation exists. Therefore, any attempt to strictly prescribe the
degree of separation would undermine the purpose of the regulation.
Similarly, the Department does not define the term ``affiliated
organizations.'' In common usage, ``affiliate'' means ``to bring into
close connection as a member or branch.'' Merriam-Webster's Collegiate
Dictionary at 21 (11th ed. 2007). Legal affiliation is only one aspect
of this relationship. The use of separate personnel, accounting,
[[Page 18762]]
timekeeping, space and identifying signage are also factors, among
others. In determining whether there is sufficient separation, the
Department will not base its decision solely on whether an entity is a
legally separate ``affiliate,'' but instead will consider the
likelihood that the degree of separation between a recipient of
Leadership Act HIV/AIDS funds and other connected organizations that
are not required to have a policy opposing prostitution and sex
trafficking will not undermine or confuse the Government's position in
opposition to prostitution and sex trafficking.
As noted by multiple comments, the proposed rule did not define
``restricted activities.'' Several comments expressed concerns that
organizations that work with the victims of prostitution and sex
trafficking would stop providing services that could prevent HIV/AIDS
because of their fear that the Government would determine the
activities were ``restricted activities,'' and revoke Federal funding.
Several comments also sought approval of particular hypotheticals. The
Department does not believe it should provide opinions on hypothetical
scenarios because information may be incomplete. While the Department
does not define restricted activities in the rule, working with other
agencies implementing the Leadership Act, the U.S. Government intends
to provide broad information on types of activities that illustrate
what would be covered.
Section 89.3 Organizational Integrity of the Recipients
This section sets forth the separation requirements for funding
recipients who wish to affiliate with organizations that do not have a
policy opposing prostitution and sex trafficking. Specifically, the
final rule no longer requires that an affiliate be a legally separate
entity. As stated in the November 23, 2009, NPRM, separate legal
incorporation in each of the host countries where a recipient might
work could prove complicated. Additionally, the inherent difficulty of
the Department analyzing multiple foreign legal requirements makes this
factor unworkable as a determinative criterion.
The rule also allows greater flexibility for funding recipients to
demonstrate organizational separation from entities which do not have a
policy opposing sex trafficking and prostitution. As noted in the NPRM,
these changes include changing separate personnel requirements to
allocation of personnel requirements, and the deletion of separate
management and governance requirements.
Many commenters believe that the proposed rule, even with
modification, unlawfully compels speech in violation of the First
Amendment, and therefore cannot be enforced against domestic entities.
The Department disagrees. As explained above, the DC Circuit Court of
Appeals upheld the Leadership Act against constitutional claims even
prior to the promulgation of implementing regulations. The court in
that case specifically relied on the fact that entities were free to
set up affiliates which ``would qualify for government funds as long as
the two organizations' activities were kept sufficiently separate.''
DKT Int'l v. USAID, 477 F.3d at 763. Likewise, the Supreme Court and
the Second Circuit Court of Appeals have upheld more burdensome
regulations where funding recipients had ``adequate alternative
channels for protected expression.'' Brooklyn Legal Servs. Corp. v.
Legal Serv's Corp., 462 F.3d 219, 231 (2d Cir. 2006); Rust v. Sullivan,
500 U.S. 173 (1991).
The goal in implementing the revised rule on the prostitution
policy provision is to ensure that the Government's position opposing
prostitution and sex trafficking is not undermined while allowing
Leadership Act funding recipients greater flexibility in finding
alternative channels for protected expression in diverse areas for
diverse populations. Given the numerous factual situations that may
arise, the Department has deliberately adopted a case-by-case approach
in this area, recognizing that circumstances in some countries may make
it difficult for organizations to satisfy some of the factors
demonstrating objective integrity and independence. The Department also
plans to work with recipients to address individual questions regarding
the separation criteria, and to help remedy violations before taking
enforcement action. We believe these steps will ensure recipients have
adequate channels for engaging in protected speech while still adhering
to the requirement of the Leadership Act that recipient organizations
be opposed to the practices of prostitution and sex trafficking because
of the psychological and physical risks they pose for women, men and
children.
Several commenters also objected to the Department's listing of
only five factors relevant to the integrity analysis when the
regulation allows that other unlisted factors may be taken into
account. Again, the relevant inquiry will not be the presence or
absence of any particular factor, but the ``totality of
circumstances,'' under which the recipient organization is shown to be
sufficiently separate from an affiliate organization that does not have
a policy opposing prostitution. The court decisions previously
discussed all upheld similar regulations where the Government
specifically stated the factors were ``not limited to'' those set forth
in regulation.
Several commenters expressed concern that the extent of restricted
activities by the affiliated organization would be a factor considered
by the Department. Given that the purpose of affiliate separation
requirements is to determine when an affiliated organization is so
closely tied to the funding recipient that a reasonable observer would
attribute its activities to the funding recipient, the Department
agrees that the extent of restricted activities by a separate entity
should not be considered, and therefore has deleted that part of
Subsection 89.3(b)(4).
Several commenters believed the proposed rule should mirror the
Department's non-discrimination regulations for faith based
organizations. Under these regulations, the commenters insist,
``religious activities'' require only time or space separation.
However, the faith based regulations rely on different statutory and
constitutional foundations. The faith based regulations allow religious
and non-religious organizations to compete equally in applying for
Federal funds as long as time, place and other restrictions on
religious activities are met consistent with the Establishment Clause
of the U.S. Constitution. By contrast, the Leadership Act requires all
funding recipients, regardless of the character of their organization,
to have a policy against prostitution and sex trafficking. The
Leadership Act requires that HIV/AIDS funding recipients act
consistently with their opposition to prostitution and sex trafficking.
This requirement necessitates greater separation between funding
recipients and organizations that engage in activities inconsistent
with an opposition to prostitution and sex trafficking, than the faith
based regulations require between governmental programs operated by a
faith based organization and its religious activities. The Department
believes this rule best meets the goals of the Leadership Act's anti-
prostitution provision without infringing upon the constitutional
rights of recipients.
Deleted Section 89.3 Certification
As proposed, former section 89.3 requiring annual certification of
compliance with the anti-prostitution provision by both recipients and
sub-recipients has been deleted. The Department does not believe such
procedures are necessary for compliance
[[Page 18763]]
under the Leadership Act. Recipients are still required to follow the
dictates of the Leadership Act and maintain the required separation
from affiliates that engage in activities inconsistent with an
opposition to prostitution and sex trafficking. The required notice in
the public announcement and awarding instrument will provide notice to
funding recipients of the Leadership Act's anti-prostitution
requirements and allow an opportunity to engage the Department in
further dialogue on the issue if an applicant desires.
Those commenting on this deletion suggested the lack of
certification would make the Leadership Act unenforceable, adding that
the negligible cost of certification is far outweighed by its benefits.
The Department disagrees. The Department is not hampered in its
monitoring or enforcement by the lack of certification, and may still
conduct audits of discretionary grant programs whenever they are
warranted to ensure compliance with program requirements. Nothing in
the Leadership Act requires certification by recipients or prevents
enforcement when those requirements are not met. Given the cost to the
public of administering the certification and the negligible benefit to
the Department, deleting the requirement comports with the goals of the
Paperwork Reduction Act to ``minimize the paperwork burden * * * from
the collection of information by and for the Federal Government.'' 35
U.S.C. 3501.
III. Impact Analysis
Executive Order 12866 and Paperwork Reduction Act
As explained in the NPRM to this final rule, this rule is a
``significant regulatory action'' under Executive Order 12866, section
3(f)(4), because it raises novel legal or policy issues that arise out
of legal mandates and the President's priorities, and accordingly, the
Office of Management and Budget has reviewed it.
This rule modifies a previously issued final rule on the same
subject, published on December 24, 2008, in the Federal Register. The
modification reduces the burden on applicants and funding recipients in
complying with the policy. The December 24, 2008, final rule required
statements and formal documentation from recipients before they could
receive Leadership Act HIV/AIDS funds. The Impact Analysis and the
Paperwork Reduction Act in the December 24, 2008, final rule estimated
the burden and cost of writing the additional documentation. This rule
no longer requires this additional documentation. As a result,
applicants for Leadership Act HIV/AIDS funds will no longer have to
incur the costs outlined in the December 24, 2008, impact analysis and
paperwork burden analysis.
Therefore, the rule should relieve regulated entities by the
amounts specified in the December 24, 2008, final rule. We are
republishing the impact table from the December 24, 2008, final rule.
The burden estimate was $7,337 calculated by assuming an additional
half hour of clerical work to prepare documentation on behalf of 555
grantees at an hourly rate of $ 26.44.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Average burden
Instrument Number of responses per hours per Average cost Total burden Total burden
respondents respondent response per hour hours cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
Certifications.................................... 555 1 0.5 $26.44 277.5 $7,337
--------------------------------------------------------------------------------------------------------------------------------------------------------
List of Subjects in 45 CFR Part 89
Administrative practice and procedure, Federal aid programs, Grants
programs, Grants administration.
Dated: January 22, 2010.
John Monahan,
Interim Director, Office of Global Health Affairs.
Dated: January 22, 2010.
Kathleen Sebelius,
Secretary.
0
Therefore, under the authority of section 301(f) of the Leadership Act,
as amended, and for the reasons stated in the preamble, the Department
revises 45 CFR part 89 to read as follows:
PART 89--ORGANIZATIONAL INTEGRITY OF ENTITIES IMPLEMENTING PROGRAMS
AND ACTIVITIES UNDER THE LEADERSHIP ACT
Sec.
89.1 Applicability and requirements.
89.2 Definitions.
89.3 Organizational integrity of recipients.
Authority: Section 301(f) of the Leadership Act, Pub. L. 108-25,
as amended (22 U.S.C. 7631(f)) and 5 U.S.C. 301.
Sec. 89.1 Applicability and requirements.
(a) This regulation applies to all recipients unless they are
exempted from the policy requirement by the Leadership Act or other
statute.
(b) The Department of Health and Human Services (HHS) components
shall include in the public announcement of the availability of the
grant, cooperative agreement, contract, or other funding instrument
involving Leadership Act HIV/AIDS funds the requirement that recipients
agree that they are opposed to the practices of prostitution and sex
trafficking because of the psychological and physical risks they pose
for women, men, and children. This requirement shall also be included
in the award documents for any grant, cooperative agreement or other
funding instrument involving Leadership Act HIV/AIDS funds entered into
with the recipient.
Sec. 89.2 Definitions.
For the purposes of this part:
Commercial sex act means any sex act on account of which anything
of value is given to or received by any person.
Leadership Act means 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).
Prostitution means procuring or providing any commercial sex act.
Recipients are contractors, grantees, applicants or awardees who
receive Leadership Act funds for HIV/AIDS programs directly or
indirectly from HHS.
Sex trafficking means the recruitment, harboring, transportation,
provision, or obtaining of a person for the purpose of a commercial sex
act.
Sec. 89.3 Organizational integrity of recipients.
A recipient must have objective integrity and independence from any
affiliated organization that engages in activities inconsistent with
the recipient's opposition to the practices of prostitution and sex
trafficking because of the psychological and physical risks they pose
for women, men and children (``restricted activities''). A recipient
will be found to have objective integrity and independence from such an
organization if:
(a) The affiliated organization receives no transfer of Leadership
Act HIV/AIDS funds, and Leadership Act HIV/AIDS
[[Page 18764]]
funds do not subsidize restricted activities; and
(b) The recipient is, to the extent practicable in the
circumstances, separate from the affiliated organization. Mere
bookkeeping separation of Leadership Act HIV/AIDS 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 separation
exists. The presence or absence of any one or more factors relating to
legal, physical, and financial separation will not be determinative.
Factors relevant to this determination shall include, but not be
limited to, the following:
(1) Whether the organization is a legally separate entity;
(2) The existence of separate personnel or other allocation of
personnel that maintains adequate separation of the activities of the
affiliated organization from the recipient;
(3) The existence of separate accounting and timekeeping records;
(4) The degree of separation of the recipient's facilities from
facilities in which restricted activities occur; and
(5) The extent to which signs and other forms of identification
that distinguish the recipient from the affiliated organization are
present.
[FR Doc. 2010-8378 Filed 4-12-10; 8:45 am]
BILLING CODE 4150-38-P
