Administration Views on H.R. 2830, Trafficking Victims Protection Reauthorization Act (TVPRA) of 2011

as Introduced in the House October 3, 2011

General Comments The Administration appreciates the opportunity to comment on H.R. 2830. Federal agencies value the tools that the Trafficking Victims Protection Act of 2000, as amended (TVPA), has provided them to combat human trafficking. The Administration supports reauthorization of the TVPA that better enables the United States to advance the fight against contemporary forms of slavery. Indeed, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008) has provided opportunities for innovation, while ensuring that the 3P paradigm and federal definition remain consistent over time, across agencies, and with international norms. Such an approach helps federal agencies investigate and prosecute these crimes with greater success each year; apply the minimum standards to the community of nations through the Trafficking in Persons Report in a manner that tracks the Palermo Protocol and garners results; and coordinate and partner with each other and with non-governmental organizations and the private sector to leverage resources and multiply forces at home and abroad in a manner and direction that can stand the test of time. We note that H.R. 2830 includes a large number of mandates; thus this bill is likely to be extremely costly and could seriously jeopardize agencies’ abilities to implement elements of a TVPA reauthorization, particularly in this era of constrained Federal resources. The following sections – divided by (i) constitutional concerns and questions, (ii) section-by-section concerns, and (iii) technical drafting comments – identify the Administration’s concerns with certain provisions of H.R. 2830. Note that these comments are limited to H.R. 2830 and do not include any Administration proposals regarding technical corrections to the 2008 TVPRA or other existing U.S. laws. Furthermore, agencies may, in the future, submit additional comments related to implementation or reauthorization of the TVPA. If additional authorities are crafted, we welcome the opportunity to analyze and comment on them and urge that any such additional provisions be crafted as permissive authorities. Constitutional Concerns and Questions Section 101(a) – Authority to Restrict Passports (p. 3, line 4) Section 101(a) “authorize[s]” the Secretary of State to “(1) limit to 1 year or such period of time as the Secretary of State shall determine appropriate the period of validity of a passport issued to a sex offender; and (2) revoke the passport or passport card of an individual who has been convicted by a court of competent jurisdiction in a foreign country of a sex offense.” This section implicates the constitutional right to travel abroad guaranteed by the Fifth Amendment, and might be subject to a colorable Fifth Amendment challenge. The Supreme Court has recognized the existence of a Fifth Amendment right to travel abroad, see Kent v. Dulles, 357

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U.S. 116, 125-26 (1958), but has explained that “the ‘right’ of international travel has been considered to be no more than an aspect of the ‘liberty’ protected by the Due Process Clause of the Fifth Amendment” and “can be regulated within the bounds of due process.” Haig v. Agee, 453 U.S. 280, 307 (1981) (internal quotation marks omitted). The Court has upheld direct restrictions on travel abroad when a person’s activities threaten national security or U.S. foreign policy interests, see id. at 308; Zemel v. Rusk, 381 U.S. 1, 14 (1965), and has suggested that a ban on travel might be justified in other circumstances as well, see Agee, 453 U.S. at 290.

It is unsettled what standard of scrutiny applies to direct restrictions on the right to travel abroad, particularly when travel restrictions are justified by concerns other than foreign policy or national security. Compare Agee, 453 U.S. at 306 (“[T]he freedom to travel abroad with a . . . passport issued by the sovereign is subordinate to national security and foreign policy considerations; as such it is subject to reasonable governmental regulation.”) with Eunique v. Powell, 302 F.3d 971 (9th Cir. 2002) (three separate opinions unable to agree on a standard of review). We are confident that section 101 of H.R. 2830 would survive rational basis review. But if a court were to apply a standard more stringent than rational basis, it is difficult to predict how the court would resolve a challenge to the provision. If Congress wishes to minimize the litigation risk to section 101, it might consider looking to two similar statutes that restrict passport issuance to individuals convicted of certain offenses, but apply only “if the individual used a passport . . . or otherwise crossed an international border in committing the offense,” and only during a limited time defined by the individual’s sentence. See 22 U.S.C. §§ 212a & 2714. We believe that these statutes’ more tailored approach might alleviate any potential constitutional concern, as identified above. We have additional comments on section 101 below. Section 107 – Enhancing Protection for Children Exploited Abroad by United States Citizens and Permanent Resident Aliens (p. 11, line 11) Section 107 would amend 18 U.S.C. § 2423(c) as follows:

Any United States citizen or alien admitted for permanent residence who travels in or engages in travel affecting foreign commerce (even if residing, whether temporarily or permanently, in a foreign jurisdiction), and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

The amendments appear to provide federal jurisdiction over U.S. Citizens or Legal Permanent Residents who engage in illicit sexual conduct even in cases involving purely foreign conduct, i.e., travel outside the United States either among foreign countries or within a single foreign country where there is an effect on foreign commerce. The existing version of the statute has been subject to numerous, albeit unsuccessful, constitutional challenges. Based on that experience, the broader language proposed in H.R. 2830 is likely to be subject to as-applied challenges. With respect to the foreign commerce clause, the Supreme Court has stated that there “is evidence that the Founders intended the scope of the foreign commerce power to be . . . greater” than that over interstate commerce, Japan Line, Ltd. v. Cty. of Los Angeles, 441 U.S.

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434, 448 (1979), and it has indicated reasons why a distinction might be drawn between the two, see id. at 448 n.13, 449 (noting that “Congress’ power to regulate interstate commerce may be restricted by considerations of federalism and state sovereignty” not applicable to foreign commerce, and that the regulation of foreign commerce may require a “need for federal uniformity”). A lower court has observed that “the Supreme Court has never struck down an act of Congress as exceeding its powers to regulate foreign commerce.” United States v. Clark, 435 F.3d 1100, 1113 (9th Cir. 2006). However, there is little judicial precedent addressing the full scope of Congress’s foreign commerce power. This proposed amendment to Section 2423(c) appears to be premised on the theory that the federal power to regulate “foreign commerce” is so unlimited as to reach all commerce abroad, even where there is no substantial link to the United States. There is a risk that courts might find that a statute authorizing criminal liability based solely on foreign conduct with no such nexus extends beyond Congress’s admittedly broad foreign commerce power. We therefore caution that aggressive applications of section 2423(c) as proposed to be amended by section 107 of H.R. 2830 could engender an appreciable litigation risk. Congress could explore other sources of constitutional authority for this proposed change, including its authority to implement treaties. See United States v. Frank, 486 F. Supp. 2d 1353, 1355 (S.D. Fla.2007) (concluding that Congress had “the authority to enact § 2423(c) under the Necessary and Proper Clause to implement a treaty which the Senate had ratified,” namely the Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography, S. Treaty Doc. No. 106-37). To the extent that Congress wishes to rely on this basis for expanding jurisdiction (in addition to any other bases of constitutional authority), and to have courts consider its constitutionality on that basis, it may wish to refer to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution an child pornography (or another treaty) in the bill or its legislative history. Section-by-Section Concerns Reauthorization Period (p. 1) H.R. 2830 authorizes appropriations for fiscal years 2012 and 2013 for the Trafficking Victims Protection Act of 2000, and for other purposes. We recommend authorizing appropriations at least through fiscal year 2015 if not longer, such as a five-year cycle as is the case with the Violence Against Women Act. A cycle extending through fiscal year 2015 would be identical to the one in the most recent reauthorization in 2008, and would mirror the period proposed in S. 1301, the Senate’s version of the 2011 reauthorization. Additionally, an extended cycle would give relevant federal agencies the time they need to fully implement new provisions or mandates. We recommend that there be authorizations of appropriations of such sums as may be necessary. Section 101 – Authority to Restrict Passports (p. 3, line 4): Section 101 authorizes the Secretary of State to limit passport issuance to “sex offenders” to one year, and allows her to revoke the U.S. passport of someone convicted of a “sex offense” in a

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“court of competent jurisdiction in a foreign country.” We recommend changes to the proposed provision for a number of reasons.

• As drafted, this provision would result in inconsistent treatment for American citizens convicted of sex offenses abroad – who would be eligible for full validity (10 year) passports after their return to the United States – versus American citizens convicted of sex offenses in the United States – who could be limited to one year validity passports. It would make more sense to expand the scope of section (a)(1) to apply to persons convicted abroad as well as to individuals listed on the National Sex Offender Registry. This could be done by either changing the definition of “sex offender” or by modifying subsection (a)(1) as suggested below.

• For clarity, subsections (b) and (c) should reflect that limited validity passports for direct return to the United States are issued in circumstances like these where the passport was revoked. Such a clarification is useful in order to ensure consistency with section 215(b) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1185(b), which generally requires a U.S. citizen to have a U.S. passport to enter the United States. Section 101(c) should also be changed as suggested below to clarify that revocation under subsection (a)(2) is not intended to prevent a U.S. citizen from reapplying for a U.S. passport after having returned to the United States, rather than to suggest that the intent is to create a new authority or right.

• We also recommend striking the words “or passport card” from section 101(a)(2) (at line 11) and section 101(c) (at lines 22 and 23) as unnecessary, because the term “passport” includes passport books and passport cards.

The recommend changes are as follows:

SEC. 101. AUTHORITY TO RESTRICT PASSPORTS. (a) IN GENERAL.—The Secretary of State is authorized to—

(1) limit to 1 year or such period of time as the Secretary of State shall determine appropriate the period of validity of a passport issued to a sex offender or to an individual who has previously had a passport revoked under subsection (a)(2); and

(2) revoke the passport or passport card of an individual who has been convicted by a court of competent jurisdiction in a foreign country of a sex offense. (b) LIMITATION FOR RETURN TO UNITED STATES.—Notwithstanding

subsection (a), in the no case of shall a United States citizen convicted by a court of competent jurisdiction in a foreign country of a sex offense whose passport has been revoked under subsection (a)(2), the Secretary of State shall issue a limited validity passport for direct return to the United Statesbe precluded from entering the United States due to a passport revocation under such subsection.

c) REAPPLICATION.—In the case of aAn individual whose passport or passport card was revoked pursuant to subsection (a)(2), such revocation does not prevent the individual from may reapplying for a passport or passport card at any time after such individual has returned to the United States.

The following two definitions from Section 101(a) are not consistent:

(101)(a)(1): The section provides that “sex offense” has the same meaning as in the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. 16911(5).

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(101)(a)(2): The proposal defines “sex offender” for purposes of passport limitation to mean an individual included in the National Sex Offender Registry (NSOR) maintained by the FBI.

Not all persons convicted of a “sex offense” as defined by SORNA are included in NSOR (states may not register all old offenses, there are undetected offenders who are not registering, tribal convictions where the tribe does not have NSOR access, administrative oversight where an entry is not made); and vice-versa, not all persons in NSOR have been convicted of a “sex offense” as defined by SORNA (jurisdictions may include offenses above and beyond what it is required by SORNA). This provision would also have resource implications. The Department of State notes there are no additional funds for the Department to take the restrictive actions outlined or for implementing all the procedures that would be entailed. Additionally, it is unclear how the Department of State would receive the requisite information to make a determination under this section; currently, the Department may not necessarily know, without information from law enforcement agencies, when a U.S. citizen is sex offender or has been convicted by a court of competent jurisdiction in a foreign country of a sex offense. Section 102(a) – Office to Monitor and Combat Modern Slavery and Other Forms of Human Trafficking (p. 4, lines 14-24 and p. 5, lines 1-7): Section 102(a) changes the name of the Department of State’s “Office to Monitor and Combat Trafficking in Persons” to the “Office to Monitor and Combat Modern Slavery and Other Forms of Human Trafficking.” We recommend striking “and Other Forms of Human Trafficking” from the proposed new title and making conforming changes throughout the bill. The term “modern slavery” is broad in scope and encompasses all forms of human trafficking. “Modern slavery”, “human trafficking”, and other similar terms used to describe this phenomenon have become effectively synonymous through usage. See, e.g. TVPA sections 102(a) and 102(b)(1). Thus, the addition of “and other forms of human trafficking” is unnecessary. Eliminating this additional language also helps avoid any confusion over the term “trafficking,” which in some non-English-speaking countries is difficult to translate accurately. Section 103(a)(6) – Prevention of Trafficking (p. 7, line 7 and p. 7, lines 18-19): This section amends section 106(a) of the TVPRA and allows the President to give priority to certain categories of persons in carrying out certain targeted international initiatives to enhance economic opportunity for potential trafficking victims. We recommend striking at line 7 the language “or are otherwise marginalized” after “Persons who lack access to legal representation” in proposed new subsection (3)(C) of section 106(a) of the TVPA, as this language is extremely broad and could swallow the other categories listed under new subsection (3). In addition, the language contained at lines 18-19 in proposed new subsection (3)(G) is unnecessary, as it is assumed from the subsection that the President may give priority to persons who meet one or more of the criteria.

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Section 103(b)(2) – Prevention of Trafficking (p. 8, lines 7-9): We recommend striking the language, “acting through the Director of the Office to Monitor and Combat Modern Slavery and Other Forms of Human Trafficking,” to avoid legal requirements that the Secretary of State act through other individuals. This Office already acts under the direction of the Secretary of State. Section 104(1)(A) – Reports to Congress (p. 8, lines 18-22): We recommending striking this section of the bill, to avoid legal requirements that the Secretary act through other individuals. The Office (proposed to be renamed the Office to Monitor and Combat Modern Slavery and Other Forms of Human Trafficking) already acts under the direction of the Secretary of State. Section 104(1)(D) – Reports to Congress (p. 9, lines 3-23): Section 104(1)(D) proposes amending section 110(b)(1) of the TVPA by inserting three new subsections at the end – (F), (G) and (H). We object to section 104(1)(D) and recommend deletion of the proposed new subsections (F), (G) and (H) for the following reasons.

• Subsections (F) (p. 9, lines 5-9) & (G) (p. 9, lines 10-14)

Subsections (F) and (G) require the Department of State’s annual Trafficking in Persons (TIP) Report to include two new sections entitled “Best Practices in Slavery Eradication” and “Refugee-Trafficking Connection.” In the TIP Report, the Department of State routinely has addressed or highlighted best or promising practices in combating human trafficking through the 4P paradigm, and has focused on populations most vulnerable to human trafficking, including refugee populations. We recommend striking both these sections so as to leave the Department of State the discretion and flexibility to address these issues in the manner that is most appropriate and effective in light of foreign policy objectives, global trends, significant events and other relevant circumstances in a given year.

• Subsection (H) (p. 9, lines 15-23)

Subsection (H) would require the TIP Report to include an assessment of certain actions taken by DOS and DOJ concerning allegations of trafficking or abuse in connection with nonimmigrants holding A-3 or G-5 visas. This section should be deleted as it is duplicative, counterproductive to law enforcement efforts in this area, and beyond the scope of the TIP Report insofar as it covers abuse. The United States already provides such a report on a biannual basis to Congress pursuant to the requirements of section 203(d) of the TVPRA 2008. Further the United States narrative in the annual TIP Report already provides a detailed review of the State Department’s efforts to prevent trafficking of A-3 and G-5 visa holders (see 2011 TIP Report, p. 377) and a review of U.S. prosecutorial efforts in trafficking cases as a general matter (see id., p. 373). Revealing to the public any details of ongoing investigations or the results of such investigations, for example, where a suspect has been charged or an investigation put on hold,

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could jeopardize the investigation, potentially leading to the destruction of evidence or fleeing of a suspect. Further, this section would require reporting in the TIP Report on not only investigations of trafficking but also of general “abuse,” reporting which is beyond the scope of the TIP Report. Finally, other agencies would not be in a position to assess investigations undertaken by DOJ or other domestic law enforcement agencies inasmuch as, among other reasons, investigative documents may not legally be disclosed to non-law enforcement entities. For these reasons, we recommend striking this reporting requirement. Section 104(2) – Reports to Congress (p. 9, lines 24-25 and p. 10, lines 1-2): We recommend striking this section of the bill, to avoid the legal requirements that the Secretary act through other individuals. The Office (proposed to be renamed the Office to Monitor and Combat Modern Slavery and Other Forms of Human Trafficking) already acts under the direction of the Secretary of State. Section 105 – Temporary Increase in Fee for Certain Consular Services (p. 10, line 3) This section extends through fiscal year 2013 the $1 fee increase for processing machine-readable nonimmigrant visas and machine-readable combined border crossing identification cards and nonimmigrant visas implemented under section 239(c) of the TVPRA 2008. We generally have concerns with visa surcharges that are unrelated to the provision of visa services and that may prompt other governments to impose increased fees upon U.S. citizens. Section 106 – Additional Activities to Monitor and Combat Forced Labor and Child Labor (p. 10, line10) Sections 106(1) and 106(2)(B) amend section 105(b) of the Trafficking Victims Protection Reauthorization Act of 2005 (22 U.S.C. § 7112(b) (TVPRA 2005) to require inclusion of the United States in the Department of Labor’s “List of Goods Produced by Child Labor Forced Labor” (TVPRA List). We object to this provision as beyond the mission and expertise of DOL’s Bureau of International Labor Affairs (ILAB), as well as extraneous to the purposes of the reporting requirement as originally enacted. First, ILAB does not collect data on child labor or forced labor in the United States. While the Department of Labor’s Wage and Hour Division collects data on enforcement of federal child labor laws, such collection does not extend to specific goods. Second, Part E of ILAB’s mandate under the TVPRA 2005 requires that the List of Goods be used to help ensure that goods made with forced labor or child labor are not imported into the United States. Reporting on the United States would not contribute to that mandate. We also object to the proposal in section 106(2)(C) to include in the TVPRA List “goods that are produced with inputs that are produced with forced labor or child labor.” This provision would be unadministrable for the Department of Labor. A given final product sold in the United States may be composed of hundreds of individual inputs. Each of these inputs may come from different countries. Many of these inputs will be sourced on the open market rather than through a fixed relationship between final goods manufacturers and individual input suppliers. Identifying with confidence whether a good is composed of an input made by child labor would

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require records that identify each input in a good; each country for each input; the day, place and from whom each input was procured; and an indication of who was employed in the production of each input. That makes for potentially thousands of individual points of data for each final good. The administrative burden on companies to track this data throughout the supply chain would be a prohibitive cost and the cost to DOL to ensure sufficient accuracy in reporting the information would likely far exceed the entire current budget of the Bureau of International Labor Affairs. The identification of persons or businesses that produce goods on the TVPRA List, which is mandated by section 106(2)(C), is also problematic for a number of reasons: • Naming specific companies or individuals could make the Department of Labor vulnerable to

legal challenge by affected companies for arbitrary and capricious administrative action and thus impose potential litigation burdens. Identification of companies for practices in international commerce may not be precise enough to withstand such challenge. o ILAB does not have the resources, authority, or investigative expertise to build

consistently defensible cases against named foreign persons or entities for forced or child labor.

• Gathering this type of information would be a difficult, if not impossible, task. ILAB does not currently have the legal authority, investigative expertise, or necessary resources to conduct the international investigations required to gather such information. Moreover, it is not clear that such investigations could take place without the high-level cooperation of foreign governments. Laying the groundwork for such investigations – even assuming the necessary legal authority, investigative expertise, and resources – would be a heavy lift under the best of circumstances. Agencies that have international jurisdiction have encountered significant challenges in conducting sensitive investigations in their territory; many such investigations are performed in a joint fashion, requiring the sharing of key information with host country officials (e.g., international drug trafficking).

• Any additional requirements for the TVPRA List would necessarily impose additional work

on the Bureau, which currently receives no funds to produce this report. (Refer to comments below on title III of the bill regarding authorization of appropriations.)

• Finally, we question the utility of publishing information on companies or individuals. If our

List named specific producers found to be using child or forced labor overseas, such as a particular factory or farm, this producer could – and would – easily change its name as soon as we published the list. In addition, the names of specific factories or farms overseas would not provide any useful information to U.S. consumers. On the other hand, if we tried to name U.S. retailers sourcing goods from producers using child or forced labor, we would have to track any violation found at the producer level through the supply chain to the retailer selling it. This kind of tracking data is extremely difficult to obtain; much of it is company proprietary information that companies are not required to disclose. As a result, the few company names we may be able to obtain would be an ad hoc and incomplete list of violators. In fact, the U.S. retailers who are making meaningful efforts to root out child and forced labor may be the only ones we could find, because they are open and transparent about their data and their efforts. Putting those companies on the ILAB List might have the

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perverse effect of discouraging some companies from taking action to combat child labor and forced labor.

Section 106(3) would require making the TVPRA List available to the public and Congress by April 1, 2012, and updated not less than every 2 years thereafter. This timing is not consistent with existing Department of Labor policies and deadlines. DOL is responsible for another mandated report on child labor regarding the status of government efforts to combat these problems, which provides context to the List of Goods and thus a broader framework for engaging with foreign governments on the issues highlighted by the List. This other report is released annually in September. We recommend that the date the List is required to be published remain October 1. Moreover, the Department of Labor publishes the List annually at present, and while we would not oppose a two-year requirement as an outside limit, DOL would expect to continue to update the List as frequently as necessary to keep it current in light of new developments and new information. Section 201(a) – Interagency Task Force to Monitor and Combat Trafficking (p. 12, line 11) We suggest adding “and the Equal Employment Opportunity Commission,” after “Director of the Peace Corps” to explicitly include the EEOC in the Interagency Taskforce to Monitor and Combat Trafficking. To the extent that forced labor is imposed on the basis of sex or national origin, as often is the case, the EEOC may address the situation pursuant to its enforcement authority in Title VII of the Civil Rights Act. EEOC investigations have uncovered labor trafficking in several employment discrimination cases, which has led to interagency enforcement efforts. Section 201(c) – Report on Activities of Bureau of Justice Assistance (p. 13, line 24) Section 201(c)(3) amends section 105(d)(7) of the TVPA to expand the Attorney General’s report to Congress to include for each DOJ-funded trafficking taskforce, “the number of reports of trafficking, investigations of trafficking, T- and U-visa certifications requested and granted in connection with instances of trafficking, requests for continuation of presence under 107(c)(A)(iii) and grants of the same.” The current language with regard to “T- and U-visa certifications” is confusing, as it implies that law enforcement certifications involve an application that is either granted or denied. If the purpose is to refer to the number of law enforcement certification requests received and completed, DHS recommends replacing “requested and granted” with “received and completed” (p. 14, line 16). This proposal also provides that the Attorney General’s report should include information on each trafficking victim. Pursuant to 8 U.S.C. § 1367(b)(6), information related to applicants for T and U nonimmigrant status can only be disclosed to the chair and ranking members of the Committee on the Judiciary for the House of Representatives or the Committee on the Judiciary for the Senate, and only in a manner that protects the confidentiality of such information and omits personally identifying information. Since section 105(d)(7) of the TVPA provides that the Attorney General’s report is also shared with the Committee on Ways and Means and the Committee on Foreign Affairs of the House of Representatives, and the Committee on Finance and the Committee on Foreign Relations of the Senate, this proposal (p. 14, line 20 to p. 15, line

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2) should be modified to expressly provide the limitations at 8 U.S.C. § 1367 to disclosure of trafficking victims’ information. The meaning of section 201(c)(3) is unclear, but to the extent that it would require the publication of law enforcement protocols (at p. 15, lines 3-7), DOJ objects and would recommend that this paragraph be stricken.

Section 202 – Department of Defense Director of Anti-Trafficking Policies (p. 15, line 8) We do not support requiring the Secretary of Defense to designate a Director of Anti-Trafficking Policies. We also do not support giving the director oversight “to ensure the proper handling of cases” involving persons subject to the UCMJ and military criminal jurisdiction. The Department of Defense (DOD) has implemented chapter 212 of title 18, United States Code (MEJA), under the responsibility of the DOD General Counsel, with liaison on specific cases with the Department of Justice. Considering the variety of offenses to which MEJA jurisdiction attaches, we do not support consolidating all responsibility in a Director of Anti-Trafficking Policies. DOD’s current integration of the anti-trafficking functions into existing functional areas/staff is an efficient and economical means of pursuing DOD’s anti-trafficking goals. In scale and relative priority, it is commensurate with the DOD’s role in the overall federal government’s anti-trafficking effort. We further object to this provision as unnecessarily and unwisely restricting the Secretary’s ability to manage DOD and interferring with the Secretary’s responsibility under 10 U.S.C. § 113 to exercise authority, direction, and control over DOD and to execute its national security mission. We do not support mandating in law the Department’s anti-trafficking functions. DOD is either implementing, engaged in, or has completed implementing the majority of the functions that this provision would assign to the Department (e.g., training programs, MEJA implementing instructions, contractor compliance [FAR rule], UCMJ amendment, evaluation system, trafficking surveys, and alignment with NATO), making their delineation in statute gratuitous at best. Furthermore, there is no similar statutory language for the other federal agencies involved in the U.S. Government’s anti-trafficking effort, which would create an unequal legislative underpinning for the entire U.S. Government’s anti-trafficking program.

We do not support giving the Director oversight on the enforcement of: “(I) Defense Federal Acquisition Instruction 952.222-0001 (‘Prohibition Against Human Trafficking, Inhumane Living Conditions, and Withholding of Employees Passports’) (July 2010), (II) Defense Federal Acquisition Instruction 952.225-0004 (‘Compliance with Laws and Regulations’) (July 2010), and (III) Defense Federal Acquisition Instruction 252.225-7997 (‘Additional Requirements and Responsibilities Relating to Alleged Crimes by or Against Contractor Personnel in Iraq or Afghanistan’)(Deviation 2010-O0014) (August 2010).” Under the responsibility of the Under Secretary of Defense for Acquisition, Technology and Logistics, the Department of Defense is implementing these provisions.

We do not support mandating that the Director have “sufficient staff and resources” to carry out his or her duties and responsibilities. Within the priority of Department functions, sufficient staff and resources are applied to anti-trafficking – just not in the form directed by this bill. We

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further object to this provision as interferring with the Secretary’s responsibility under 10 U.S.C. § 113 to exercise authority, direction, and control over the Department and to execute the Department’s national security mission.

We do not support designating the Director of Anti-Trafficking Policies as an Assistant Secretary of Defense and prohibiting the Secretary from assigning to the Director any responsibilities not related to trafficking in persons. None of the major federal agencies involved in the U.S. Government’s anti-trafficking program (i.e., the Departments of State, Justice, Health and Human Services, Labor, and USAID) have an assistant secretary specifically for combating trafficking in persons. This designation also is excessive and unwarranted in comparison to the alignment of the Secretary of Defense’s staff with its primary roles and missions. The Department further objects to this provision as interferring with the Secretary’s responsibility under 10 U.S.C. § 113 to exercise authority, direction, and control over the Department and to execute the Department’s national security mission. Section 203 – Assistance for Victims of Trafficking (p. 19, line 16)

The Administration continues to review this section, and advises that it may wish to provide additional comments on this section in the near future. HHS seeks clarification on whether U visa holders and their derivatives will be eligible for benefits to the same extent as refugees through the same process as Continued Presence and T nonimmigrant status holders.

Both subsections (a) and (b) amend the TVPA to make U visa holders eligible to receive benefits and services in the same manner as individuals subject to HHS Certification. The bill does not address whether U visa holders will be subject to the same process of HHS Certification nor does it amend the language on HHS Certification under §107(b)(1)(E) of the TVPA, 42 U.S.C. 7105(b)(1)(E) ).

It appears the intent was to ensure that aliens who are suffering the same crimes will be treated the same way, not only under T and U visas, but also under HHS Certification and therefore have equal access to HHS benefits. Clarification is needed to determine if the amendments also mean that an alien who meets these requirements would also meet the requirements for HHS certification under §107(b)(1)(E) of the TVPA, 42 U.S.C. 7105(b)(1)(E) .

Section 204(1) – Ensuring Timely Response to Requests for Continued Presence (p. 20, lines 19-24) We oppose this section and recommend that it be stricken as it dilutes too significantly the requirements for Continued Presence (CP). CP is a law enforcement tool to allow victims of a severe form of human trafficking to remain in the United States during the ongoing investigation into the human-trafficking related crimes committed against them, as victims play a central role in building a case against a trafficker; it is not designed for potential victims. Currently, the CP statute requires that an individual may be granted CP if he or she is a victim of a severe form of

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trafficking in persons and may be a potential witness to such trafficking. Where a federal law enforcement official files an application, CP can be granted based on prima facie evidence that the person is a trafficking victim. This section would also allow certification for a person who “may be” a victim of trafficking. Prima facie evidence that the person “may be” a victim of trafficking could include the mere assertion by the putative victim that he or she is such a victim. This dilutes the requirement for CP to a mere possibility that the person is a trafficking victim (in addition to the possibility of being a potential witness).

Section 204(2) (p. 21, lines 1-12) We oppose this section and recommend that it be stricken. The section would impose deadlines that do not account for operational realities. Imposing time constrictions on CP under section 204(2) will result in victims not being identified and granted the benefit to remain in the United States during the ongoing investigation. Recommending CP often takes longer than 15 days because officials must seek additional evidence. This would have an adverse impact on trafficking investigations and prosecutions. Section 205 – Report to Congress (p. 21, line 13) We recommend striking this section. As drafted, the bill would codify the State Department’s recent practice of evaluating domestic USG anti-trafficking efforts, as opposed to only foreign countries’ anti-trafficking efforts. The provision should be deleted to avoid infringing upon the discretion and flexibility of the Executive Branch to develop effective practices in the global effort to combat human trafficking. Senior Policy Operating Group agencies are in the process of developing procedures for interagency input, collaboration, and review to ensure that all agencies’ activities are accurately reflected and represented in the report and to ensure consistency between State’s reporting and the TVPA-mandated Attorney General’s reporting on USG efforts. In deference to Executive Branch prerogatives and this ongoing interagency process, we recommend against any legislation codifying any aspect of State’s reporting on domestic U.S. anti-trafficking practices at this juncture. Section 211 – Renaming of Basic Federal Trafficking Statute (p. 22, line 3) We object to this section and recommend that it be stricken. The section would re-caption Section 2422, currently entitled “coercion and enticement,” as “sex trafficking and related offenses.” The proposed change would cause the title of the statute to be inaccurate in several ways. First, Section 2422 prohibits coercion of two types of sexual activity: prostitution, or “any sexual activity for which any person can be charged with a criminal offense.” The statute’s prohibition of coercing or enticing an individual to engage in any criminal sexual activity criminalizes conduct that is neither sex trafficking nor “related” to sex trafficking. Therefore, the proposed change would fail to accurately describe all of the criminal activity prohibited in the statute. Second, the statute’s prohibition of coercing or enticing a minor to engage in prostitution criminalizes a severe form of trafficking, not just “sex trafficking.” Finally, this proposed change will create confusion because it is inconsistent with the definition of “sex trafficking” in the TVPA at 22 U.S.C. § 7102(9). “Sex trafficking,” as currently defined in the TVPA, and as thousands of law enforcement officers, investigators, judges, and prosecutors have been trained

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for a decade, does not require travel. Section 2422(a) does require travel. In a similar vein, the TVPA indicates that sex trafficking includes the facilitation of any person’s engagement in commercial sex, while Section 2422(b) requires evidence that the defendant did more than facilitate the conduct, but rather, persuaded, induced, enticed, or coerced the minor to engage in the illegal sexual activity. Given the differences in scope between the TVPA’s definition of sex trafficking and the criminal activity prohibited in Section 2422, changing the name of Section 2422 to “sex trafficking” would cause much confusion for no discernable benefit.

Section 212 – Clarifying Trafficking Definitions and Prosecutions (p. 22, line 13) We object to this section and recommend that it be stricken. This section would re-caption 18 U.S.C. § 1591 as “severe forms of trafficking in persons,” but this change would render it inconsistent with the TVPA’s current definition of the same term at 22 U.S.C. § 7102(8). The TVPA’s existing definition of that term includes forced labor, involuntary servitude, peonage, debt bondage, slavery, and coerced or under-age commercial sex. Section 1591, however, concerns only coerced or under-age commercial sex. Thus, re-captioning section 1591 as “severe forms of trafficking in persons” could appear to remove forced labor, involuntary servitude, peonage, debt bondage, and slavery from that definition and create confusion as to the meaning of that term. Section 213 – Fighting Sex Tourism (p. 23, line 1) Section 213 would change the section heading for subsection (d) of section 2423 of title 18, United States Code, from “Ancillary offenses” to “Child sex tourism.” We oppose this change. The phrase “child sex tourism” is inaccurate, both generally and with respect to the conduct prohibited in section 2423(d). Child sex tourism occurs when an individual travels abroad and sexually abuses children. The crime prohibited in section 2423(d) is not “child sex tourism.” Rather, the crime in that section reaches individuals who facilitate the travel of others who wish to engage in illicit sexual conduct. Furthermore, the phrase “child sex tourism” in and of itself is misleading. The individuals who travel abroad are not “tourists,” they are child abusers. The phrase “child sex tourism” overemphasizes the travel, and underemphasizes that these individuals are sexually exploiting children. We would be happy to work with Congress to explore other ways to describe the crime prohibited in section 2423(d). We note that the Department of Justice has prepared a legislative proposal that would close two loopholes in the definition of “illicit sexual conduct” as used in section 2423. These proposals have been cleared by OMB. Specifically, the proposal would add “sexual contact” to the definition of illicit sexual conduct, so DOJ could prosecute cases where a child is forced to touch the genitals of an adult. The proposal would also add the production of child pornography to the definition of illicit sexual conduct, so DOJ could prosecute cases where a defendant travels abroad and produces child pornography. Section 214 – Identification Documents (p. 23, line 5) Section 214 would create a new misdemeanor offense named “Unlawful Conduct with Respect to Immigration Documents.”

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We advise against creating such a new misdemeanor offense. The proposal appears to be modeled after 18 U.S.C. § 1592, which makes it a felony to “knowingly destroy, conceal, remove, confiscate, or possess any actual or purported passport or immigration document, or any other actual or purported government document, or another person” in furtherance of trafficking, peonage, slavery, involuntary servitude, or forced labor. This section corresponds to section 201 in S. 1301, about which the Department of Justice submitted previous comments to the Senate Judiciary Committee. We are also concerned that creating a new misdemeanor offense focusing on the destruction of actual or purported passports, other immigration, or personal identification documents of another individual may seriously undercut alien smuggling and harboring prosecutions. The new misdemeanor offense would be of little use to prosecutors, either in trafficking in persons cases or in alien smuggling or document fraud cases, while creating a lesser included offense that might be attractive to juries that wish to avoid convicting persons of more serious alien smuggling or trafficking in persons offenses. We would also disfavor inclusion of a similar provision in Title 8 of the U.S. Code (the Immigration and Nationality Act) for the same reason. Furthermore, we request that no substantive changes be made to the criminal provisions of the TVPA. We believe that the current criminal provisions provide excellent tools for prosecuting trafficking cases. A decade of training federal, state, and local law enforcement officers, judges, and prosecutors has resulted in record numbers of prosecutions each of the last several years. We do not wish to disrupt that progress. Including a misdemeanor crime in the trafficking chapter of Title 18 would complicate plea negotiations for defendants, as potential cooperators would seek a plea to this misdemeanor rather than to the five year maximum penalty of section1592. Section 221– Harmonization of T and U Visa Standards (p. 24, line 19) Section 221(a)(1) amends section 212(d)(13)(A) of the Immigration and Nationality Act. We recommend that the phrase “in the case of” (at p. 25, lines 2-3) be replaced with “with respect to” in order to maintain internal consistency within section 212(d)(13)(A) of the INA. Section 221(b) – Harmonization of T and U Visa Standards (p. 25, lines 10-15) Section 221(b) amends section 245(l)(2)(B) of the INA. We recommend that this section further amend section 245(l) of the INA by adding the phrase “public or” before “national interest” in order to promote consistency with the amendment made in section 221(a)(1)to section 212(d)(13)(A) of the INA. Section 231(a)(1) – Enhancing Efforts to Combat the Trafficking of Children (p. 25, lines 22-24 & p. 26, lines 1-9) Section 231(a)(1) amends section 235(a)(2)(A) of TVPRA 2008 providing the screening standard for unaccompanied alien children from countries contiguous to the United States. In addition to the existing prongs to screen for victims of a severe form of trafficking or for risk of

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trafficking upon return, for credible fear of persecution, and for capacity to make the independent decision to withdraw the application for admission, this section adds a new prong that requires a determination that “return would not endanger the life or safety of the child.” DHS notes that the standard for this new prong would be difficult to implement, especially given that the screening is intended to occur within the first 48 hours of apprehension. Additionally, the standard is unclear about what exactly would “endanger the life or safety of such child”. Additionally, this provision appears to broaden the grounds for a child from a contiguous country to remain in the United States and in the care of HHS. If so, such an outcome could potentially present significant resource issues for ACF/ORR. Section 231(a)(2) (p. 26, line 10 to p. 27 line 2) We oppose section 231(a)(2) as unnecessary and operationally difficult to implement. As required by the TVPRA of 2008, the Department of Homeland Security (DHS) already provides specialized training to its employees who have substantive contact with unaccompanied alien children. DHS also houses unaccompanied alien children in the least restrictive setting appropriate to the minor’s age and special needs. Section 231 (a)(3) (p. 27, lines 22-23) Furthermore, the term “expertise in child welfare” should be clarified by substituting “professional experience and training” for “expertise” in both locations. Section 231(a)(3) (p. 27, line 3 to p. 28, line 3) Section 231(a)(3) amends section 235(a)(5) of TVPRA 2008 to require DHS to report to Congress annually on the number of alien children encountered by Customs and Border Protection (CBP), the number of alien children screened for severe forms of human trafficking, whether the screening was conducted by an individual with child welfare expertise, and the number of children repatriated or diverted into services. We propose some technical changes. For example, this section does not differentiate between unaccompanied and accompanied alien children encountered by CBP. If the reporting requirement is retained, it would be best to differentiate between the two groups, as there are some special requirements for the treatment of unaccompanied alien children that do not exist for accompanied alien children. This section also requires reporting on screening alien children for severe forms of trafficking, whereas currently screening is only statutorily required for unaccompanied alien children from contiguous countries. Such contiguous unaccompanied alien children are screened for whether they are “a victim of a severe form of trafficking in persons” or “there is [] credible evidence that such child is at risk of being trafficked upon return,” see 8 U.S.C. § 1232(a)(2)(A), which is broader than the reporting requirement of this section. Finally, the reporting requirement on how many alien children “were diverted into services” is vague. It is not clear whether this is intended to include unaccompanied alien children whose custody is transferred to HHS, all alien children who are not repatriated, alien children who receive HHS benefits, or some other category. The types of “services” referred to at p. 28 should be specified for clarity.

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Section 231(b) (p. 28, lines 4-9) HHS notes that it maintains 24/7 operations of the UAC intake program. The time requirement to transfer the child to HHS custody remains at 72 hours. This notification change will help to ensure successful transfer of custody to HHS and placement with a care provider within 72 hours. The additional time between notice and transfer also will help ensure the child is appropriately placed in the least restrictive setting. Section 231(b) amends section 235(c)(2) of TVPRA 2008, which amends the requirement to notify HHS within 48 hours of discovery of an unaccompanied alien child to a 24-hour period. We believe that the 24 hour notification period is not feasible operationally. Section 231(c)(1) (p. 28, lines 12-25) Section 231(c)(1) amends section 235(c)(2) of TVPRA 2008 to provide appropriate custodial settings for unaccompanied alien children when they reach the age of majority. We recommend against amendments to TVPRA 2008 section 235(c)(2), because section 236 of the INA addresses aliens in detention. If this provision is retained, however, the new language proposed for section 235(c)(2)(B) should include the qualifier “consistent with section 236 of the INA” in order to clarify that INA § 236 applies. The new language should also permit, not require, the Secretary to either release or place the individual in the least restrictive setting. Section 231(c)(2)(A) (p. 29, lines 5-12) As worded, this section requires a home study for any allegation of abuse or neglect if the child is to be placed with a parent, but if the child is placed with another relative or individual, the sponsor “must present a clear risk of abuse, maltreatment, exploitation, or trafficking based upon all available evidence.” This means that there is a lower burden for the requirement of a home study if the child is placed with a parent than if the child is placed with another relative who is subject to the same type of allegations. This provision should apply even if the sponsor is not a parent (e.g., aunt, uncle, or cousin). The paragraph should be amended to:

• strike “If the sponsor is a parent”; • capitalize the “a” which becomes the beginning of the sentence; and • replace the word “parent” with the word “sponsor” in lines 9 and 11.

(We note that the proposed amendment in lines 13-15 is insufficient to accomplish its purpose, because it fails to encompass allegations of current or past abuse or neglect, which the proposed amendment in lines 5-12 does address.) Section 231(c)(2)(C) (p. 29, lines 15-21) HHS does not see the necessity for such a requirement. HHS conducts an assessment to determine if a home study is warranted for any individual to whom an unaccompanied minor may be released. The assessment includes a thorough background check process, a determination of the ability of the individual to meet the child’s needs, as well as other supporting documents

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that must be provided. If any concerns arise based on the assessment, then a home study is conducted and follow-up services are provided based on assessed need. A blanket requirement to provide follow-up services to all children, even in cases where identified risk to a child’s well-being has not been identified through the assessment process, diverts limited resources that can most effectively be allocated to children where there is concern of risk to their well-being.. To the extent that a domestic child welfare agency determines risk is involved in a case that comes to their attention, a visit would be made to the home to investigate; in cases where it’s determined that risk is not involved but services may be needed, a referral for such services may be provided. The current DUCS program operates in a similar way using assessments which show that there are no identified risks to well-being in many of the cases of children being released from HHS’ care. The resource implications would be significant for providing follow up services for an estimated 7,500 children a year in remote locations across the country. Sec. 231(c)(3) (p. 30, line 6) HHS prefers that this language provide for a program in three "sites", rather than three "states". ORR needs the flexibility to put the advocate programs where there is the most need, which will be site specific, not necessarily state specific. If two are needed in one state, ORR should be able to establish two instead of diluting the limited resources to three separate states. Further, the term “pilot” should be struck as ORR has been partnering to provide Child Advocate services at select locations for over five years, and the program has moved beyond the pilot phase. Section 231(c)(3)(B) (p. 30, lines 12-13) While the term “other vulnerable unaccompanied alien children” already exists in the statute, Congress may wish to take this opportunity to further define the term for purposes of providing guidance as to which unaccompanied alien children HHS should prioritize for the appointment of child advocates. We suggest adding, “e.g., younger UACs, those with mental or developmental disabilities, and/or those who have a history of abuse/neglect.” Sec. 231(c)(3) (p.30, line 14) HHS will include this report within the annual report to Congress on the Refugee Resettlement Program, which is required by section 413(a) of the Immigration and Nationality Act. Section 231(d) (p. 30, line 24 through p. 31, line 19) Section 231(d) amends section 235(d)(4) of TVPRA 2008 to make U nonimmigrant status recipients who are children, and who were formerly considered unaccompanied children, eligible for foster care and certain benefits available to refugees. We appreciate the intention of the provision to expand access to care for U nonimmigrants who were formerly deemed unaccompanied children. We do not believe, however, that the language proposed accomplishes this end. The provision is added to the subparagraph that discusses special immigrant juvenile status. The proposed language does not make clear that the U nonimmigrant must have been deemed unaccompanied. We request this section be clarified and modified if only intended for unaccompanied children. In addition, we note that this provision would only be applicable to

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child principal U nonimmigrants, since derivatives would be accompanied. Therefore, we recommend that “101(a)(15)(U)” be changed to “101(a)(15)(U)(i)” and “1101(a)(15)(U)” be changed to “1101(a)(15)(U)(i)” for clarity. HHS seeks clarification on whether the intent is to provide children who obtain SIJs and U Visas while in the Division of Unaccompanied Children’s Services care (or receiving services as Cuban/Haitian entrants) with benefits and services to the same extent of refugees, including services under section 412(d) of the INA. Some children are unable to benefit from services under 412(d) due to timing issues, as explained below. ORR operates two separate programs for unaccompanied children: the Unaccompanied Alien Children program (UAC), which provides temporary shelter to unaccompanied alien children, and the Unaccompanied Refugee Minors Program (URM), which is a long-term foster care program for unaccompanied children eligible for refugee benefits, including children who are victims of trafficking and have received an HHS Eligibility Letter. This bill would make certain children with U visas eligible for the URM program and would create the need for additional resources for the placement of additional minors in the URM program. The TVPRA of 2008 only extended eligibility to placement and services under section 412(d) of the INA for minors granted status under section 101(a)(27)(J) of the INA, which addresses Special Immigrant Juvenile classification. That legislation allowed minors to enter the URM program; however it did not permit eligible Special Immigrant Juveniles to access federally means-tested benefits such as Medicaid. The amendments in this bill to provide “placement and services to the same extent under section 207 of the INA” appears to revise the language and enhance the benefits these minors are able to access, exempting this population from the 5-year waiting period as well. However, HHS requests clarification about the five year bar for U visa holders and Special Immigrant Juveniles who have adjusted status, and clarification about the eligibility of children who are classified as Special Immigrant Juveniles, as well seeking clarification as to how this bill language is intended to and does actually intersect with current law providing eligibility for “battered aliens” at 431(c) of PRWORA (8 USC 1641(c), which includes individuals, spouses, and children of the person who has been battered. It is our understanding that these individuals receive a U visa at some point during their process. As a significant number of the youth receiving Special Immigrant Juvenile status or U-Visas require continuing medical assistance post-18, particularly mental health services due to trauma from being subjected to abuse, neglect or crime, we seek clarification if Congress’ intent is that the language in the bill provide for health insurance coverage under the State plan approved under title XIX for the youth described in this paragraph, and that coverage continue through the age indicated on the State Chafee/ ETV Plan Since URM programs serve children in parity with their State Chafee/ETV Plan, URM youth are eligible for continuing services up to 21 or even 24 years of age, depending on the state. Further, some children in the UAC program receive SIJS or U-Visas on the cusp of turning 18 and must exit the program, but there is insufficient time for them to transfer into the URM program due to the requirement of a URM program to establish legal responsibility of the child in the new state. For such youth, HHS requests clarification as to whether these youth would be able access to benefits to the same extent as refugees.

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Considerations should also be given to a situation when a minor with a U-Visa or with SIJS exits the URM program. The way the bill is currently written does not appear to address the extended benefits to minors with a U-Visa or SIJS if they exit the program. Currently minors with a trafficking eligibility letter issued by ORR have the ability to access benefits and services to the same extent as a refugee. If benefits are extended to U-Visa and SIJS minors similarly, then the Administration reiterates its previously stated caution and concerns about fiscal constraints, given that such benefits and services would lead to increased funding needs. Sec. 231(d)(2) (p. 31, line 12) HHS requests clarification of which agency and program of the federal government will be responsible for reimbursing states for assistance to children granted SIJS and U visas. There are many more children who obtain such status and are not in HHS custody or receiving Cuban/Haitian benefits, but are being served by states. For example, in 2010 and 2011 the maximum number of U visas issued each year was 10,000. HHS does not know how many of these visas were issued to children in need of assistance from states. Section 233(a), (b) – Efforts to Publicize the National Human Trafficking Resource Center Hotline (p. 33, line 7) This provision directs the U.S. Government to advertise a specific, individual hotline number. We view this provision as overly specific for a statute, crossing into the executive branch’s area of enforcement discretion and limiting the executive branch’s flexibility to enforce the laws in the most effective ways as circumstances change. For the same reasons the bill should not reference the specific hotline number, it should not reference the specific name of the hotline, as, in its discretion, the executive branch may change the name of the hotline to improve its effectiveness.

Section 233(b)(2)-(3) – Efforts to Publicize the National Human Trafficking Resource Center Hotline (p. 34-35) We recommend striking paragraphs (b)(2) and (b)(3) of section 233 as far too specific. The provisions would have Congress direct the size, placement, and appearance of posters to publicize the hotline number, thus removing all discretion on the part of the agencies that enforce anti-trafficking laws and eliminating all flexibility in this area so that agencies could not publicize hotline numbers in any other manner, even if changed circumstances would make other manners more effective. Section 234 – Prevention of Trafficking in Persons Involving Workers Recruited Abroad (p. 36, line 8 through p. 57, line 2) Section 234 attempts to create stronger legal frameworks to regulate foreign labor recruiters and prevent foreign workers from being trafficked into the United States by mandating the Department of Labor to enforce new foreign labor contracting provisions.

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This provision would provide the Department of Labor with substantial new authority to regulate the use of foreign labor contractors by domestic employers and the activities of such contractors globally. It raises significant administrative, enforcement, and resource questions and may not effectively address the concerns identified by the Congress. Because of the uncertainties regarding the feasibility and effectiveness of section 234, we believe its enactment would be premature and recommend that a study be conducted to assess the use of foreign labor contractors by domestic employers, the extent of worker abuse that may result from such use, and the Department of Labor’s existing and potential roles in regulating the process. The Government Accountability Office would be a good fit to carry out the study. As to the focus of the study, we further suggest that it be organized around the following elements: • Understanding how workers are recruited in the sending countries, including such things as

whether it is individual recruiters working informally, whether it is organized groups, any role the government plays including regulation, payments/fees required by recruiters, any contractual promises or obligations, recruiting methods, any common labor abuses, etc.

• Given that practices vary greatly between sending countries, identifying which are the main countries sending workers into the United States and focus on understanding and describing the practices in those countries;

• Understanding the role of the labor broker between the sending and receiving countries, including any identified involvement in labor abuses;

• Establishing the role and practices of US employers in commissioning labor brokers or directly recruiting foreign workers;

• Assessing DOL’s existing role in the labor recruitment process, including certifying and enforcing under existing regulations;

• Examining the prevalence of abusive labor practices among contractors recruiting foreign laborers for US Government supported work outside the United States to determine if the proposed regulations should be extended to these contractors; and

• Based on the above assessment, determining any common abuses of both workers and the current system, and recommending possible actions for DOL or other USG agencies for combating the abuses (taking to account jurisdictional considerations).

Title III – Authorization of Appropriations (p. 57, line 3) As noted above, H.R. 2830 authorizes appropriations for fiscal years 2012 and 2013 only. We recommend authorizing appropriations at least through fiscal year 2015, if not longer. A period extending through fiscal year 2015 would match the cycle of the TVPRA 2008, mirror the period proposed in S. 1301, and give relevant federal agencies the time they need to fully implement new provisions or mandates. As well, we recommend that authorization of appropriations be provided in the form of “such sums as may be necessary.” The Administration notes that with the enactment of the Budget Control Act of 2011, discretionary spending is projected to reach historically low levels. In this era of fiscal constraints, the Administration cautions that expansions and enhancements of authorities may not be sustainable budgetarily. In that regard, we note that H.R. 2830 includes a large number of mandates that are unfunded. Selected parts of this paper further note these cautions and concern.

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We note that the cost to the Department of Labor’s International Labor Affairs Bureau to carry out the proposed new mandates in H.R. 2830 is substantial; aside from the significant resources the Bureau has dedicated and continues to invest in creating and maintaining the TVPRA List of Goods. However, in large part, funds quoted in the previous TVPA reauthorization bills have not been matched with actual funds in Congressional appropriations. We are concerned that the Bureau will be unable to meet the requirements of these additional mandates, given fiscal constraints. We estimate that, excluding the provision on listing “goods that are produced with inputs that are produced with forced labor or child labor,” it would require an annual budget of $15 million to perform the tasks contemplated under the amended TVPRA. This is in line with the annual budget appropriated to the Department of Homeland Security/Immigration and Customs Enforcement’s Forced Child Labor (FCL) Investigations Program. The $15 million covers costs related to international investigations as well as program administration at headquarters. In this environment, those resource requirements may not be realizable. Section 301(b)(2)(D)(iv) (p. 59, lines 20-24) The bill reduces the amount authorized in the TVPA for the Attorney General’s anti-trafficking grants from $10 million annually to $7 million annually. As stated previously and as a general matter, we strongly recommend authorization of appropriations of “such sums as may be necessary.” Justice notes that with an annual appropriation of $10 million, DOJ only able to fund a small number of task forces and victim service providers compared to the number of applications we receive annually. Additionally, DOJ’s training, technical assistance, research, evaluation, and data gathering efforts are all funded as a percentage of the overall trafficking appropriation, therefore the reduction in authorization will negatively impact all of DOJ’s non-task force and victim service related efforts. Section 303 – Reporting Requirement (p. 61-62) Section 303 requires the President to submit an annual report on each agency’s appropriations authorized pursuant to the TVPA of 2000 or TVPRA of 2005, how those appropriations were spent on anti-TIP activities, and the appropriation account from which each activity was funded. With respect to the Department of State, the spirit and letter of the TVPA and its reauthorizations guide Department policy making and priority setting both in terms of strategy and budgeting. However, no funds are appropriated to the Department of State specifically to carry out the provisions of the TVPA. The State Department relies on appropriations for foreign assistance and operational expenses, as appropriate, to carry out TVPA-authorized programs. As a result, there is no way to determine the amounts appropriated or expended by the State Department with respect to any particular TVPA authorization.

Technical Drafting Comments

Section 1 (p. 2): “Rico” should read “RICO”

Section 201 (p. 13, lines 18 and 20): strike the apostrophes

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Section 201 (p. 14, line 19): correct the statutory reference to continuation of presence to read “107(c)(3)(A)(iii)” Section 203 (p. 19, line 20): strike “an” and add an “s” to “alien”

Section 203 (p. 20, line 5): suggest inserting provision striking “of title 8”

Section 203 (p. 20, line 17): suggest inserting provision striking “of title 8” Section 301(b)(2)(A)(i)(I) (p. 57, line 22): recommend deleting section 301(b)(2)(A)(i)(I). This provision seeks to amend the section 113 of the TVPA by striking “104,”. This reference to section 104, however, was already deleted in the 2008 reauthorization. See William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, sec. 301(1)(A)(i). Section 301(b)(2)(A)(ii) (p. 58, line 2): recommend after “‘fiscal years 2008 and 2011’” adding “in each place it appears”. Section 302 (p. 60, line 22): in the chapeau after “(Public Law 109-164)” recommend adding “, as amended by section 302 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,”.