Reporting Requirements Regarding Findings of Harassment, Sexual Harassment, Other Forms of Harassment, or Sexual Assault, 13934-13942 [2020-04815]

Agencies

• National Aeronautics and Space Administration

[Federal Register Volume 85, Number 47 (Tuesday, March 10, 2020)]
[Notices]
[Pages 13934-13942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04815]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

[Notice (20-029)]


Reporting Requirements Regarding Findings of Harassment, Sexual 
Harassment, Other Forms of Harassment, or Sexual Assault

AGENCY: National Aeronautics and Space Administration.

ACTION: Final Notice of a new NASA term and condition regarding sexual 
harassment, other forms of harassment, and sexual assault.

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SUMMARY: NASA is publishing, in final form, a new term and condition 
regarding sexual harassment, other forms of harassment, and sexual 
assault. NASA's intention to develop and

[[Page 13935]]

implement this new term and condition was specified in the Federal 
Register of July 17, 2019, FR Doc. 2019-15088, on page 34206.
    The many hundreds of U.S. institutions of higher education and 
other organizations that receive NASA funds are responsible for fully 
investigating complaints under and for compliance with federal non-
discrimination laws, regulations, and executive orders. The 
implementation of new reporting requirements is necessary to help 
ensure research environments to which NASA provides funding are free 
from sexual harassment, other forms of harassment, and sexual assault. 
Additionally, NASA is bolstering our policies, guidelines, and 
communications. These requirements are intended, first, to better 
ensure that organizations funded by NASA clearly understand 
expectations and requirements. In addition, NASA seeks to ensure that 
recipients of grants and cooperative agreements respond promptly and 
appropriately to instances of sexual harassment, other forms of 
harassment, and sexual assault.

FOR FURTHER INFORMATION CONTACT: For any questions, comments, or 
concerns regarding sexual or other forms of harassment, please contact 
the Office of Diversity and Equal Opportunity (ODEO), 300 E Street SW, 
Washington, DC 20546, email: [email protected]; telephone (202) 
358-2180; FAX: (202) 358-3336.

SUPPLEMENTARY INFORMATION: As a U.S. funding Agency of scientific 
research and development, and the primary funding Agency for 
aeronautics and space research and technology, NASA is committed to 
promoting safe, productive research and education environments for 
current and future scientists and engineers. We consider the Principal 
Investigator (PI) and any Co-Investigator(s) (Co-I) identified on a 
NASA award and all personnel supported by a NASA award to be in a 
position of trust and must not engage in harassing behavior during the 
award period of performance whether at the recipient's institution, on-
line, or outside the organization, such as at field sites or 
facilities, or during conferences and workshops.
    On July 17, 2019, NASA published a request for public comment 
regarding the Agency's proposed implementation of new notification 
requirements [84 FR 34206, pages 34206-24208, July 17, 2019]. All 
comments were carefully considered in developing the final version of 
the term and condition. A document listing the comments and NASA 
responses is posted on the NASA ODEO website at: https://www.nasa.gov/offices/odeo/policy-and-publications.
    Upon implementation, the new term and condition will require 
recipient organizations to report to NASA any findings/determinations 
of sexual harassment, other forms of harassment, or sexual assault 
regarding a NASA funded PI or Co-I. The new term and condition will 
also require the recipient to report to NASA if the PI or Co-I is 
placed on administrative leave or if the recipient has imposed any 
administrative action on the PI or Co-I, or any determination or an 
investigation of an alleged violation of the recipient's policies or 
codes of conduct, statutes, regulations, or executive orders relating 
to sexual harassment, other forms of harassment, or sexual assault. 
Finally, the new term and condition specifies the procedures that will 
be followed by NASA upon receipt of a report.
    The full text of the new term and condition is provided below:

Reporting Requirements Regarding Sexual Harassment, Other Forms of 
Harassment, or Sexual Assault

    (a) The Principal Investigator (PI) and any Co-Investigator(s) (Co-
I) identified on a NASA award are in a position of trust. These 
individuals must comport themselves in a responsible and accountable 
manner during the award period of performance, whether at the 
recipient's institution, on-line, or at locales such as field sites, 
facilities, or conferences/workshops. Above all, NASA wishes to assure 
the safety, integrity, and excellence of the programs and activities it 
funds.
    (b) For purposes of this term and condition, the following 
definitions apply:
    1. Administrative Leave/Administrative Action: Any temporary/
interim suspension or permanent removal of the PI or Co-I, or any 
administrative action imposed on the PI or Co-I by the recipient under 
organizational policies or codes of conduct, statutes, regulations, or 
executive orders, relating to activities, including but not limited to 
the following: teaching, advising, mentoring, research, management/
administrative duties, or presence on campus.
    2. Finding/Determination: The final disposition of a matter 
involving sexual harassment or other form of harassment under 
organizational policies and processes, to include the exhaustion of 
permissible appeals exercised by the PI or Co-I, or a conviction of a 
sexual offense in a criminal court of law.
    3. Other Forms of Harassment: Non-gender or non-sex-based 
harassment of individuals protected under federal civil rights laws, as 
set forth in organizational policies or codes of conduct, statutes, 
regulations, or executive orders.
    4. Sexual harassment: May include but is not limited to gender or 
sex-based harassment, unwelcome sexual attention, sexual coercion, or 
creating a hostile environment, as set forth in organizational policies 
or codes of conduct, statutes, regulations, or executive orders.
    (c) The recipient is required to report to NASA: (1) Any finding/
determination regarding the PI or any Co-I \1\ that demonstrates a 
violation of the recipient's policies or codes of conduct, relating to 
sexual harassment, other forms of harassment, or sexual assault; and/or 
(2) if the PI or any Co-I is placed on administrative leave or if any 
administrative action has been imposed on the PI or any Co-I by the 
recipient relating to any finding/determination or an investigation of 
an alleged violation of the recipient's policies or codes of conduct, 
statutes, regulations, or executive orders relating to sexual 
harassment, other forms of harassment, or sexual assault.\2\ Such 
reporting must be submitted by the Authorized Organizational 
Representative (AOR) to NASA's Office of Diversity and Equal 
Opportunity at https://missionstem.nasa.gov/term-condition-institutional-harassment-discr.html within 10 business days from the 
date of the finding/determination, or the date of the placement of a PI 
or Co-I by the recipient on administrative leave or the imposition of 
an administrative action.\3\
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    \1\ If a co-I is affiliated with a subrecipient organization, 
the AOR of the subrecipient must provide the requisite information 
directly to NASA and to the recipient. The subrecipient must act in 
accordance with Title 2 of the Code of Federal Regulations, Section 
200.331, Requirements for Pass-Through Entities.
    \2\ Recipient findings/determinations and placement of a PI or 
Co-I on administrative leave or the imposition of an administrative 
action must be conducted in accordance with organizational policies 
and processes. They also must be conducted in accordance with 
federal laws, regulations, and executive orders.
    \3\ Such report must be provided regardless of whether the 
behavior leading to the finding/determination, or placement on 
administrative leave, or the imposition of an administrative action 
occurred while the PI or Co-I was carrying out award activities.
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    (d) Recipient agrees to insert the substance of this term and 
condition in any subaward/subcontract involving a co-investigator. 
Recipient will be responsible for ensuring that all reports, including 
those related to co-investigators, comply with this term and condition.
    (e) Each report must include the following information:

[[Page 13936]]

     NASA Award Number;
     Name of PI or Co-I being reported; \4\
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    \4\ Only the identification of the PI or Co-I is required. 
Personally identifiable information regarding any complainants or 
other individuals involved in the matter must not be included in the 
report. In the rare circumstance that information regarding a PI or 
Co-I is subject to the Family Educational and Privacy Act, 20 U.S.C. 
1232g and its implementing regulations, 35 CFR part 99, the 
recipient shall comply with those requirements.
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    Type of Report: Select one of the following:
     Finding/Determination that the reported individual has 
been found to have violated the recipient's policies or codes of 
conduct, statutes, regulations, or executive orders relating to sexual 
harassment, other forms of harassment, or sexual assault; or
     Placement by the recipient of the reported individual on 
administrative leave or the imposition of any administrative action on 
the PI or any Co-I by the recipient relating to any finding/
determination, or an investigation of an alleged violation of the 
recipient's policies or codes of conduct, statutes, regulations, or 
executive orders relating to sexual harassment, other forms of 
harassment, or sexual assault.
    The recipient must also provide:
     A description of the finding/determination and action(s) 
taken, if any; and/or
     The reason(s) for, and conditions of placement of the PI 
or any Co-I on administrative action or administrative leave.
    The recipient, at any time, may propose a substitute investigator 
if it determines the PI or any Co-I may not be able to carry out the 
funded project or activity and/or abide by the award terms and 
conditions.
    In reviewing the report, NASA will consider, at a minimum, the 
following factors:
    a. The safety and security of personnel supported by the NASA 
award;
    b. The overall impact to the NASA-funded activity;
    c. The continued advancement of taxpayer-funded investments in 
science and scientists; and
    d. Whether the recipient has taken appropriate action(s) to ensure 
the continuity of science and that continued progress under the funded 
project can be made.
    (f) Upon receipt and review of the information provided in the 
report, NASA will consult with the AOR, or designee. Based on the 
results of this review and consultation, the Agency may, if necessary 
and in accordance with 2 CFR 200.338, assert its programmatic 
stewardship responsibilities and oversight authority to initiate the 
substitution or removal of the PI or any Co-I, reduce the award funding 
amount, or where neither of those previous options is available or 
adequate, to suspend or terminate the award. Other personnel supported 
by a NASA award must likewise remain in full compliance with the 
recipient's policies or codes of conduct, statutes, regulations or 
executive orders relating to sexual harassment, other forms of 
harassment, or sexual assault. With regard to any personnel not in 
compliance, the recipient must make appropriate arrangements to ensure 
the safety and security of other award personnel and the continued 
progress of the funded project. Notification of these actions is not 
required under this term and condition.
    Other personnel supported by a NASA award must likewise remain in 
full compliance with awardee policies or codes of conduct, statutes, 
regulations, or executive orders relating to sexual harassment, other 
forms of harassment, or sexual assault. With regard to any personnel 
not in compliance, the awardee must make appropriate arrangements to 
ensure the safety and security of other award personnel and the 
continued progress of the funded project. Notification of these actions 
is not required under this term and condition.

End of Term and Condition

    Implementation: NASA will implement the new term through revision 
of the NASA Agency Specific Requirements to the Research Terms and 
Conditions, the Grant General Conditions, and the Cooperative 
Agreement--Financial and Administrative Terms and Conditions. These 
revised terms and conditions will become effective thirty days from the 
date of publication in the Federal Register and will be available in 
the NASA Grants and Cooperative Agreement Manual (GCAM).
    The new term and condition will be applied to all new NASA awards 
and funding amendments to existing awards made on or after the 
effective date. This new reporting requirement will apply to all 
findings/determinations that occur on or after the effective date of 
the terms and conditions. With regard to notification of placement on 
administrative leave, the recipient must notify NASA within 10 business 
days from the date the recipient determines that placement on 
administrative leave is necessary.
    Recipients are strongly encouraged to conduct a thorough review of 
the term and condition to determine whether the new reporting 
requirements necessitate any changes to the institution's policies and 
procedures. The new term and condition will be effective for any new 
award, or funding amendment to an existing award, made on or after the 
effective date. For these purposes, this means that any finding/
determination, placement on administrative leave or the imposition of 
any administrative action by the institution made on or after the start 
date of an award or funding amendment subject to the new term will 
invoke the new reporting requirements.

Public Comments Received in Response to NASA Federal Register Notice of 
July 17, 2019 (84 FR 34206) and NASA Responses

Brigham Young University

    Comment: Notwithstanding [our] support, we strongly encourage NASA 
to align its reporting requirements with the National Science 
Foundation (NSF) reporting requirements that have already been put in 
place. Standardizing reporting requirements across federal funding 
agencies is the best way to effect compliance from recipients of 
federal financial assistance that have grants from or contracts with 
multiple agencies . . . Although the NSF reporting requirements are 
similar to the reporting requirements described in NASA's notice, 
several important differences exist, including the reporting period, 
the point at which administrative actions must be reported, and the 
requirements for reporting convictions of sexual offenses. These 
inconsistences should be addressed in an effort to reduce the 
administrative burden of compliance. The adoption of differing 
reporting requirements across federal agencies places an unnecessary 
administrative burden on recipients of federal financial assistance and 
creates the potential for confusion. In contrast, having uniform 
reporting requirements would promote efficiency and institutional 
compliance. Accordingly, we request that NASA work with other federal 
agencies, including NSF, to align its reporting requirements with 
similar existing requirements and to establish a consistent standard 
prior to moving forward with the proposed term and condition.
    NASA Response: NASA has fully aligned its reporting requirements 
with the National Science Foundation's (NSF's). The single difference 
between NASA's proposed term and condition and the term and condition 
issued by NSF in 2018, is the length of time to report findings of 
sexual harassment.

[[Page 13937]]

NSF's term and condition provides for 10 business days to report; 
NASA's proposed term and condition provided for seven business days. 
NASA has revised its timeframe from seven to 10 business days to bring 
the two timeframes into conformity.

Council on Governmental Relations (COGR), Et al.

    Comment 1: Reporting administrative action taken regarding a PI or 
Co-I to NASA during an investigatory process. NASA's proposal would 
require institutions to report if ``the PI or the Co-I is placed on 
administrative leave or if the recipient has imposed any administrative 
action on the PI or the Co-I.'' As defined in the new reporting 
requirement, ``administrative action'' captures a vast array of 
temporary actions, which could be and frequently are preliminary to any 
findings or conclusions. Such actions can relate to activities 
including ``but not limited to the following: teaching, advising, 
mentoring, research, management/administrative duties, or presence on 
campus.'' These preliminary or interim measures are non-punitive and 
designed to protect all parties involved pending an outcome of an 
investigation. In addition, we believe a reporting requirement based on 
administrative actions could chill the use of these important interim 
measures out of concern that NASA may create a record or take action 
against a PI or Co-I prematurely. As an alternative to the current 
recommendation, we recommend that NASA narrow this proposed reporting 
requirement. One option would be to require reporting only in 
situations where administrative leave has been imposed and the PI or 
Co-I has been found responsible but is appealing the adjudication, or 
when the terms of a pre-adjudication leave would affect performance 
under the award.
    We also urge NASA to rely on existing approval processes in lieu of 
awardee institutions' reporting of administrative actions taken 
regarding the PI or Co-I. NASA already has approval procedures for 
substituting a PI or Co-I when a leave could impact performance. The 
NASA approval procedures for substituting a PI or Co-I when performance 
is impacted provides the agency with appropriate notice of this change. 
Adding an additional notification requirement pertaining to that same 
PI or Co-I whose performance is impacted by administrative leave during 
an investigation of reported harassment risks incurring greater costs 
than the benefits achieved. For these reasons, we recommend that NASA 
strike the requirement that notification be given to NASA for any 
administrative action and focus on those that impact performance of the 
NASA-funded project.
    NASA Response: NASA seeks to ensure consistency with NSF's grant 
term and condition on harassment reporting to ease the administrative 
burden on recipients that can be caused by differing external 
requirements. As our definition of administrative leave is consistent 
with NSF's, NASA declines to limit to final disposition. In addition, 
NASA views one of the primary purposes of a recipient institution in 
taking an action such as placing an individual on administrative leave 
is to better ensure the safety, including psychological and physical 
safety, of the research environment and the academic community. In the 
interest of ensuring safe and inclusive research environments, NASA is 
confident that recipient institutions, including universities and other 
entities, which are committed to safety and inclusion, will continue to 
utilize these kinds of actions, when it is appropriate to do so.
    Comment 2: Clarification is needed on reportable action. The 
proposed reporting requirement describes ``Administration Leave/
Administrative Action'' as ``Any temporary/interim suspension or 
permanent removal of the PI or Co-I, or any administrative action 
imposed on the PI or the Co-I by the recipient under organizational 
policies or codes of conduct, statutes, regulations, or executive 
orders, relating to activities, including but not limited to the 
following: teaching, advising, mentoring, research, management/
administrative duties, or presence on campus.'' But there is no real 
definition of what constitutes an administrative action. The 116th 
Congress is currently considering H.R. 36 ``Combatting Sexual 
Harassment in Science Act of 2019.'' The legislation, as passed by the 
House of Representatives, includes language calling on the Director of 
the Office of Science and Technology Policy to develop policy 
guidelines that define administration action as ``administrative 
action, related to an allegation against grant personnel of any sexual 
harassment or gender harassment, as set forth in organizational 
policies or codes of conduct, statutes, regulations, or executive 
orders, that affects the ability of grant personnel or their trainees 
to carry out the activities of the grant.'' We ask that NASA consider 
including this language in the final NASA reporting requirements.
    NASA Response: NASA defines ``Administrative Action/Administrative 
Leave'' as ``Any temporary/interim suspension or permanent removal of 
the PI or Co-I, or any administrative action imposed on the PI or Co-I 
by the recipient under organizational policies or codes of conduct, 
statutes, regulations, or executive orders, relating to activities, 
including, but not limited to, the following: teaching, advising, 
mentoring, research, management/administrative duties, or presence on 
campus.'' While we appreciate the suggested language, we view it as 
placing unnecessary limitations on the requirement. In addition, the 
current language is consistent with NSF's definition. Finally, as 
Congress has not enacted the proposed legislation into law, NASA 
declines to accept this comment and will retain the current definition.
    Comment 3: The reporting requirement may have unintended 
consequences. If the report to NASA forms the basis for a NASA 
decision, and is subject to the Freedom of Information Act (FOIA), a 
graduate student, research trainee, postdoctoral researcher, or other 
grant personnel may be legitimately concerned that the release of such 
a report could impact their future employment opportunities. This would 
be especially troubling in a situation that results in no findings. A 
graduate student, research trainee, postdoctoral researcher, or other 
grant personnel would also need to weigh their decision to bring forth 
an allegation with the understanding that such a report may lead to the 
removal of funding that is being used to support the research grant, 
which may be detrimental to their career progress. To mitigate these 
unintended consequences, we recommend revising the language of the new 
reporting requirement to emphasize the NASA process to substitute a PI 
or Co-I, rather than suspension or termination of the award. We 
appreciate the process proposed by NASA that will allow ``the 
recipient, at any time, to propose a substitute investigator if it 
determines the PI or any Co-I may not be able to carry out the funded 
project or activity and/or abide by the award terms and conditions.''
    NASA Response: The proposed NASA term and condition aligns with the 
National Science Foundation term and condition. Both agencies reference 
the possibility of substitution or removal of a PI or Co-I, as well as 
the possibility of suspension or termination. They do so in the context 
of an agency review of the report and a consultation between the agency 
and the recipient institution. This consultation seeks in part to 
ensure that ``the recipient has taken appropriate action(s) to ensure 
the continuity of science and that continued progress under the funded 
project can be made.''

[[Page 13938]]

In addition, NASA recognizes the sensitivity of the information that 
may be contained in the notifications and will take appropriate steps 
to manage such information consistent with the Privacy Act, the Freedom 
of Information Act and other applicable federal laws.
    Comment 4: Initiation of the Substitution or Removal of the PI or 
any Co-I. We also understand that upon receipt of and review of the 
information, NASA ``may, if necessary and in accordance with 2 CFR 
200.338, assert its programmatic stewardship responsibilities to 
initiate the substitution or removal of the PI or any Co-I, reduce the 
award funding amount, or where neither of those previous options is 
available or adequate, to suspend or terminate the award.'' Before 
taking such a drastic course of action as terminating the award, we 
request that NASA work with the Authorized Organizational 
Representative (AOR) to discuss and exhaustively explore all other 
options.
    NASA Response: NASA will first engage the recipient institution to 
discuss options including, but not limited to, use of a substitute PI 
or Co-I. NASA anticipates that action to suspend/terminate the award 
will be necessary only if the recipient does not identify a reasonable 
alternative. If, based on the factors identified above, the recipient 
institution determines that it is appropriate to initiate use of a 
substitute PI on the award, and then at some future point, the 
administrative leave or administrative action is lifted, or if the PI 
or Co-I is found not to have violated the recipient's policies, codes 
of conduct, statutes or regulations or executive orders relating to 
sexual harassment, the recipient should work with NASA regarding 
reinstatement of the PI to the award.
    Comment 5: Clarity is needed on confidentiality and use of reported 
information. We are very concerned about the prospect that sensitive 
personnel information, not otherwise public, could become public under 
FOIA. We ask that NASA carefully examine this issue and modify the 
proposed reporting requirements with clarifying language which 
sufficiently addresses these concerns. This will be particularly 
important if NASA chooses to maintain the reporting obligations in the 
new term and condition, which will result in the information arising 
from matters under an investigation that may not even lead to a finding 
of a violation. NASA should make clear in the new reporting 
requirements how it will handle reported information. Will it be shared 
with other agencies? Although we strongly recommend that NASA not 
mandate the reporting of all kinds of administrative actions, should 
the agency maintain that proposed requirement, it will be important for 
NASA to have a way to update its records following an institutional 
finding of no responsibility. Prior to implementation, NASA should be 
confident that its internal processes and protocols will fully address 
reasonable concerns. At the minimum, if a report is triggered before an 
investigation concludes and the investigation yields no ``finding/
determination,'' which would require the awardee to provide further 
information to NASA, the agency should clearly note that in any 
archived material pertaining to that report.
    NASA Response: NASA recognizes the sensitivity of the information 
that may be contained in the notifications and will take appropriate 
steps to manage such information consistent with the Privacy Act, the 
Freedom of Information Act and other applicable federal laws. 
Importantly, NASA makes it clear in its proposed term and condition 
that it does not require names other than those of the relevant PI or 
Co-I and that other names must not be included.
    NASA also recognizes that, because of the sensitivity of the 
information contained in the notifications, there is a need to limit 
exposure of this information on grant management systems and will 
protect the information consistent with federal law referenced above. 
NASA intends to follow the methodology of NSF in this regard, 
developing a secure mechanism by which the notifications will be routed 
directly to the NASA Office of Diversity and Equal Opportunity and 
limiting access to only those NASA personnel with an express need to 
know. NASA also has revised the term and condition to make clear to 
those submitting notifications not to include names other than the PI 
or Co-I. NASA has an obligation to keep complete and accurate records. 
Therefore, as part of the internal process to implement the term and 
condition, NASA will clearly note in its records when a recipient 
institution finds that an alleged harasser did not engage in 
harassment.
    Comment 6: The intersection with privacy regulations and state laws 
could pose conflicts. We have concerns about how the new reporting 
requirements will coincide with the Family Educational Rights and 
Privacy Act (FERPA) and other federal privacy regulations or state 
laws, which may prohibit sharing information on student and personnel 
matters outside of the higher education institution. We have concerns 
that there may be overlap or redundancy that could create conflicting 
legal obligations for higher education institutions. It is possible 
that conflicts between the NASA reporting requirement and other privacy 
regulations and laws may cause confusion for recipients and create 
questions about which legal obligation takes precedent.
    NASA Response: NASA agrees that in a rare circumstance that a PI or 
co-I is a student subject to FERPA, this reporting requirement could 
conflict with FERPA's statutory prohibitions. Accordingly, footnote 
four was adjusted to note that institutions should comply with FERPA in 
these circumstances. With regard to state laws and regulations, many 
state privacy laws contain language allowing for information disclosure 
to federal agencies, and if there were to be a conflict, traditional 
preemption doctrines would apply.
    Comment 7: Subrecipient reporting should be the subrecipient's 
responsibility. The proposed reporting requirement includes the 
requirement that ``Recipient agrees to insert the substance of this 
term and condition in any subaward/subcontract involving a co-
investigator. Recipient will be responsible for ensuring that all 
reports, including those related to co-investigators, comply with this 
term and condition.'' We recommend that if a subrecipient has a 
reportable finding/determination, compliance with this rule shall be 
the direct responsibility of the subrecipient. Due to privacy concerns, 
it is not appropriate for the primary award recipient to have direct 
knowledge of the investigation being conducted by a subrecipient. The 
primary award recipient's responsibility should be limited to passing 
through the appropriate terms and conditions from the prime award for 
inclusion in the subaward. We suggest that the subrecipient provide the 
subrecipient's report directly to NASA. Any changes that directly 
impact the performance of the subaward or the prime recipient's 
obligation to NASA should be communicated via the prior approval 
requirements of the subrecipient's subaward. Any temporary/interim 
suspension or permanent removal of the PI or Co-I should be in 
accordance with the subrecipient's policies or codes of conduct, as 
well as any relevant statutes, regulations, or executive orders.
    NASA Response: NASA agrees that the primary award recipient's 
responsibility should be limited to passing through the appropriate 
terms and conditions from the prime award

[[Page 13939]]

for inclusion in the subaward. NASA has revised the term and condition 
to require the subrecipient's Authorized Organizational Representative 
to report notifications directly to NASA. The subrecipient must act in 
accordance with Title 2 Code of Federal Regulations, Section 200.331, 
Requirements for Pass-Through Entities.
    Comment 8: Interaction with pending Title IX rules and other 
existing federal and state rules. Colleges and universities have a 
clear and unambiguous responsibility under Title IX of the Education 
Amendments of 1972 to respond to allegations of sexual harassment, 
including sexual assault . . . There are laws in addition to Title IX 
that address sexual harassment involving employees--most notably Title 
VII of the Civil Rights Act of 1964, but also numerous state and local 
laws. The overlapping but different requirements imposed by the new 
term and condition, Title VII, and state and local antidiscrimination 
laws could cause confusion and create conflicting obligations for 
institutions that are committed to complying with all applicable laws. 
Federal policy needs to give institutions enough flexibility to ensure 
that all legal and other obligations--no matter their source--are 
properly addressed when resolving sexual harassment allegations. The 
U.S. Department of Education published a proposed Title IX rule in late 
2018 and the higher education community submitted comments in January 
2019.\5\ When the rule is finalized later this year, colleges and 
universities will likely undertake changes in campus structures in 
regards to the implementation of the final rule. This, as well as the 
new terms and condition from NSF, NASA, and other federal agencies, 
without coordination or shared definitions, can make the process 
confusing and more complicated for the person reporting the harassment 
and the institution implementing the various rules. This is especially 
true as the Title IX offices are often the offices tasked with carrying 
out the new rules, while the AOR has the ultimate reporting duty to 
NASA. We ask wherever possible, NASA utilize existing definitions and 
harmonize with other federal agencies regarding existing rules and 
reporting requirements.
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    \5\ https://www.acenet.edu/news-room/Documents/Comments-to-Education-Department-on-Proposed-Rule-Amending-Title-IX-Regulations.pdf and https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/Higher-Education-Regulation/AAU-Title-IX-Comments-1-24-19.pdf and https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/Higher-Education-Regulation/AAU-Title-IX-Comments-1-24-19.pdf.
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    NASA Response: NASA is coordinating its efforts with the White 
House National Science and Technology Joint Committee on Science and 
Technology Subcommittee on Coordinating Administrative Requirements for 
Research and the Subcommittee on Safe and Inclusive Research 
Environments to ensure NASA is proceeding in a coordinated manner with 
other agencies, including the National Science Foundation. This 
coordination includes utilizing existing definitions and harmonizing 
with other federal agencies regarding existing rules and reporting 
requirements, wherever possible.
    Comment 9: An appeals process is needed. NASA should provide for an 
appeals process for any determinations made with the new term and 
condition. This should also be coordinated with any institutional 
appeals process and is especially important as institutions often have 
complex multi-layered appeals procedures. A NASA appeals procedure is 
particularly necessary in cases in which an interim measure (e.g. 
administrative action) is imposed and reported to NASA but where the PI 
or Co-I is ultimately found not responsible. The outcome of an appeals 
process, whether at NASA or the institution, should be promptly shared 
between NASA and the institution. Also, please know that institutions 
welcome the opportunity to work with NASA in the development of an 
appeals process.
    NASA Response: NASA declines to establish an appeals process 
related to this term and condition. Federal civil rights laws and 
regulations prohibiting discrimination and harassment by recipients of 
federal financial assistance, including NASA regulations, provide 
recipients with due process rights for action taken by the Agency 
address a finding of non-compliance with these laws and regulations. 
The Agency will not take such action until it determines that (1) the 
recipient's compliance cannot be secured by voluntary means, (2) there 
has been an express finding on the record, after opportunity for 
hearing, of a failure to comply with a requirement and (3) the action 
has been approved by the NASA Administrator.
    Comment 10: Submission of notification to NASA should be secure. 
The Federal Register notice indicates that notifications must be 
submitted by the AOR via email to NASA's Office of Diversity and Equal 
Opportunity via email at: [email protected]. We recommend that 
NASA consider submission of notifications via a secure web portal 
rather than through email.
    NASA Response: NASA will develop a secure mechanism by which the 
notifications will be routed directly to the Office of Diversity and 
Equal Opportunity, which will limit access to only those NASA personnel 
with an express need to know. NASA also has revised the term and 
condition to make clear to those submitting notifications not to 
include names other than the PI or Co-I.
    Comment 11: Sufficient time is needed for the recipient to report 
notification of placement on administrative leave to NASA. The proposed 
reporting timeframe of seven (7) business days, however, may not allow 
institutions adequate time, particularly in the case of an 
administrative action. In the National Science Foundation (NSF) 
``Notification Requirements Regarding Findings of Sexual Harassment, 
Other Forms of Harassment, or Sexual Assault'' published on September 
21, 2018, the final term and condition allows for ten (10) business 
days for notification to NSF from the date of the finding/
determination, or the date of the placement of a PI or a Co-I by the 
awardee on administration leave.'' While the difference is slight, it 
is helpful, and we believe there should be harmonization among the 
federal science agencies on these new terms and conditions wherever 
possible.
    NASA Response: NASA has revised the reporting requirement to allow 
recipients 10 business days to report from the date of a finding/
determination, the date of the placement of a Co-I on leave or the 
imposition of another administrative action.
    Comment 12: Implementation. According to the Federal Register 
notice, ``upon receipt and resolution of all comments, it is NASA's 
intention to implement the new term through revision of NASA's ``Agency 
Specific Requirements to the Research Terms and Conditions, the Grant 
General Conditions, and the Cooperative Agreement-Financial and 
Administrative Terms and Conditions.'' We strongly encourage NASA's 
Office of Civil Rights to thoroughly review and consider the comments 
received from the higher education and scientific communities before 
taking any action to implement these new reporting requirements. We 
also encourage NASA to consider convening a small roundtable discussion 
with key stakeholders from universities to discuss the new reporting 
requirements before implementing them. An open and comprehensive 
dialogue between NASA and the community is essential if we are

[[Page 13940]]

to combat and end sexual harassment in the scientific workplace.
    NASA Response: NASA is thoroughly reviewing and considering all 
comments received. The Agency is aware that NSF held a roundtable 
discussion with key stakeholders before implementing its harassment 
reporting requirements. NASA intends to hold a diversity, equity and 
inclusion summit that will include discussion of its new requirements.

University of California System

    Comment 1: Consistency. UC is primarily concerned with 
inconsistencies that exist between NASA's proposal and NSF's term and 
condition. Should other federal grant-making agencies propose similar 
terms to require reporting of Sexual Violence and Sexual Harassment 
(SVSH policy) or other forms of harassment, UC is concerned that there 
would be a patchwork of possibly conflicting and burdensome 
requirements from agencies seeking to follow NSF's and NASA's example. 
UC first and foremost recommends consistency across federal grant-
making agencies to avoid confusion about different reporting 
requirements.
    NASA Response: NASA is carefully reviewing all comments it has 
received requesting conformity between its reporting requirements and 
those of NSF. In addition, we are coordinating our efforts through the 
White House National Science and Technology Joint Committee on Science 
and Technology Subcommittee on Coordinating Administrative Requirements 
for Research and the Subcommittee on Safe and Inclusive Research 
Environments to ensure NASA is proceeding in a coordinated manner with 
other agencies.
    Comment 2: Timing of Notification. NASA's proposal requires the 
recipient's Authorized Organizational Representative (AOR) to submit a 
report within seven business days from the date of a finding/
determination, the date of the placement of a (co-)PI on leave or the 
imposition of another administrative action. This timeline is both 
insufficient and inconsistent with NSF's term and condition, which 
provides ten days to submit the necessary report. A discrepancy between 
NASA's and NSF's reporting deadlines, as currently proposed, would be 
burdensome on IHEs that are already tasked with maintaining compliance 
with multiple and often conflicting agency requirements, and would 
increase the risk of errors and missed reporting deadlines by grantees. 
To promote compliance by all institutions that would be subject to the 
term and condition, UC recommends that NASA modify its reporting 
deadline to ten business days, consistent with NSF's current 
requirements.
    NASA Response: NASA has revised the reporting requirement to allow 
recipients 10 business days to report from the date of a finding/
determination, the date of the placement of a Co-I on leave or the 
imposition of another administrative action.
    Comment 3: Role of Subrecipients. UC has concerns regarding the 
role of subrecipients in the proposed NASA reporting process. The 
proposed term states that the recipient agrees to insert the term in 
any subcontract involving a co-investigator, and the recipient will be 
responsible for ensuring that all reports, including those relating to 
co-investigators, comply with the term. This appears to imply that 
reports for co-investigators at subrecipient institutions must be 
reviewed and/or submitted by the recipient's AOR. Such a requirement 
would put the recipient institution in the position of not only having 
potentially inappropriate access to sensitive information, but also 
having to determine whether the subrecipient institution has an event 
triggering NASA notification, and whether it has properly complied with 
the subrecipient's own policies and procedures, with which the 
recipient would be unfamiliar. We are likewise concerned that the 
subrecipient would be required to submit such sensitive and premature 
information to primary awardees. We strongly urge NASA to revise this 
requirement to be consistent with the NSF process so that subrecipient 
institutions submit their own reports directly to NASA.
    NASA Response: NASA agrees that the primary award recipient's 
responsibility should be limited to passing through the appropriate 
terms and conditions from the prime award for inclusion in the 
subaward. NASA has revised the term and condition to require the 
subrecipient's Authorized Organizational Representative to report 
notifications directly to NASA. The subrecipient must act in accordance 
with Title 2 Code of Federal Regulations, Section 200.331, Requirements 
for Pass-Through Entities.
    Comment 4: Privacy. Reports of SVSH and assault potentially contain 
highly sensitive information not only about the respondent, but about 
the reporting parties and witnesses, who may be concerned about 
retaliation and other adverse effects on their careers. An effective 
SVSH investigation therefore requires impartiality, discretion and 
professionalism. These factors not only ensure a fair and thorough 
factual inquiry, but also protect the privacy, safety and reputations 
of all involved parties. The imperative of protecting privacy and 
respecting due process during an investigation is why UC is 
particularly concerned with the proposed requirement that universities 
report to NASA certain open investigations, i.e., those where a (co-)PI 
has been put on leave during the course of the investigation. Such a 
requirement can compromise investigations, interfere with the rights of 
both the reporting party and the party under investigation, undermine 
due process, lead to misunderstandings of NASA's role in investigations 
and damage careers, including those of the (co-)PIs, co-workers and 
students.
    NASA Response: NASA views one of the primary purposes of a 
recipient institution in taking an action such as placing an individual 
on administrative leave is to better ensure the safety, including 
psychological and physical safety, of the research environment and the 
academic community. In the interest of ensuring safe and inclusive 
research environments, NASA is confident that recipient institutions, 
including universities and other entities, which are committed to 
safety and inclusion, will continue to utilize these kinds of actions, 
when it is appropriate to do so.
    NASA recognizes the sensitivity of the information that may be 
contained in the notifications and will take appropriate steps to 
manage such information consistent with the Privacy Act, the Freedom of 
Information Act and other applicable federal laws. Importantly, NASA 
makes it clear in its proposed term and condition that it does not 
require names other than those of the relevant PI or Co-I and that 
other names must not be included.
    NASA also recognizes that, because of the sensitivity of the 
information contained in the notifications, there is a need to limit 
exposure of this information on grant management systems. NASA intends 
to follow the methodology of NSF in this regard, developing a secure 
mechanism by which the notifications will be routed directly to the 
NASA Office of Diversity and Equal Opportunity and limiting access to 
only those NASA personnel with an express need to know. NASA also has 
revised the term and condition to make clear to those submitting 
notifications not to include names other than the PI or Co-I. As part 
of the internal process to implement the term and condition, NASA will 
clearly note in its records when a recipient institution finds that an 
alleged harasser did not engage in harassment.

[[Page 13941]]

    Comment 5: Family Educational Rights and Privacy Act of 1974 
(FERPA). In addition, the university must comply with FERPA, a federal 
law that protects the privacy of student education records. In the 
Reporting Requirements Regarding Findings of Harassment, Sexual 
Harassment, Other Forms of Harassment, or Sexual Assault we noted that 
footnote 1 of subsection (e) expressly states that the identification 
of the complainant or other individuals involved in the matter must not 
be included in the report, which protects the privacy of the 
complaining party, including students. However, the proposed NASA 
reporting obligations could conflict with FERPA in the uncommon 
instance when the co-(PI) alleged to have engaged in harassment is a 
graduate student.
    NASA Response: NASA agrees that in a rare circumstance that a PI or 
co-I is a student subject to FERPA, this reporting requirement could 
conflict with FERPA's statutory prohibitions. Accordingly, footnote 
four was adjusted to note that institutions should comply with FERPA in 
these circumstances. NASA recognizes the sensitivity of the information 
that may be contained in the notifications and will take appropriate 
steps to manage such information consistent with the Privacy Act of 
1974, the Freedom of Information Act and other applicable federal laws. 
Importantly, NASA makes it clear in its proposed term and condition 
that it does not require names other than those of the relevant PI or 
Co-I and that other names must not be included. With regard to state 
laws and regulations, many state privacy laws contain language allowing 
for information disclosure to federal agencies, and if there were to be 
a conflict, traditional preemption doctrines would apply
    Comment 6: Reports via Email. NASA's proposed term would also 
require the recipient's AOR to submit the necessary reports to NASA via 
email. Given the sensitive nature of the information contained in these 
reports, UC is concerned that this method of transmittal is not secure 
and may increase the risk of submission of spurious, malicious or 
unauthorized reports (i.e., not by the recipient's recognized AOR). UC 
recommends that reports be transmitted through a more secure portal, 
consistent with the NSF procedures UC also encourages NASA to ensure 
that there is a mechanism to verify that reports are submitted by a 
valid AOR from the recipient institution.
    NASA Response: NASA will develop a secure mechanism consistent with 
federal privacy law by which the notifications will be routed directly 
to the Office of Diversity and Equal Opportunity, which will limit 
access to only those NASA personnel with an express need to know. NASA 
also has revised the term and condition to make clear to those 
submitting notifications not to include names other than the PI or Co-
I.
    Comment 7: Appropriate Handling, Storage and Maintenance of 
Confidentiality. Grantee organizations need assurance that NASA will 
appropriately handle, store and maintain the confidentiality of such 
sensitive information, and NASA should clarify whether the information 
would be protected from potential subpoenas, Freedom of Information Act 
requests or any other legal action.
    NASA Response: NASA will develop a secure mechanism consistent with 
federal privacy law by which the notifications will be routed directly 
to the Office of Diversity and Equal Opportunity, which will limit 
access to only those NASA personnel with an express need to know. NASA 
also has revised the term and condition to make clear to those 
submitting notifications not to include names other than the PI or Co-
I. As to potential subpoenas, Freedom of Information Act requests or 
any other legal action, again, NASA will act in accord with all 
applicable law.
    Comment 8: Clarity/Definitions. NASA's proposed term makes general 
references to ``statutes'' and ``regulations.'' UC requests 
clarification as to whether the reportable findings are limited to 
categories protected under federal civil rights law or whether findings 
of discrimination and harassment expressly protected by state laws and 
regulations should also be reported.
    NASA Response: NASA has revised the term and condition to add a 
definitions section. NASA defines finding/determination as ``The final 
disposition of a matter involving sexual harassment or other form of 
harassment under organizational policies and processes, to include the 
exhaustion of permissible appeals exercised by the PI or Co-I, or a 
conviction of a sexual offense in a criminal court of law.'' The 
reporting requirement is limited to only federal laws over which NASA 
has jurisdiction.
    Comment 9: Impact on Project Members/Reporting. Consequences for 
violations of SVSH policy or other harassment policies are determined 
at the end of the investigation when the preponderance of the evidence 
shows the employee violated policy. UC is concerned that NASA's 
reporting requirement, as proposed, could irreparably damage NASA-
funded projects as well as the reputations of individuals involved--
particularly if an allegation of harassment or assault is not 
substantiated. Participants on a NASA project, including postdoctoral 
researchers, staff and students, may experience adverse impacts on 
their current and future professional endeavors and livelihoods. As a 
result, NASA project members may be reluctant to report harassment if 
they believe a report could disrupt or terminate their project. 
Further, UC is concerned that the term does not address NASA's process 
in those situations in which a report is made concerning allegations 
that are later found to be unsubstantiated. In such a circumstance, UC 
would expect that names of exonerated PIs or Co-Is would be removed 
from any allegation-related internal NASA lists or databases on which 
they had appeared.
    NASA Response: Civil rights laws and their implementing regulations 
protect NASA project members who report harassment from retaliation. 
NASA's Office of Diversity and Equal Opportunity investigates 
complaints of retaliation. As to removing names of PIs or Co-Is 
ultimately found not to have engaged in harassment in violation of a 
recipient's policy, NASA will clearly note in its records when an 
alleged harasser is found not to have harassed, as it has an obligation 
to ensure the accuracy of our records.

University of Wisconsin-Madison

    Comment 1: NASA is proposing that reports be submitted ``within 
seven business days from the date of the finding/determination, or the 
date of the placement of a PI or Co-I by the recipient on 
administrative leave or the imposition of an administrative action.'' 
Originally, NSF proposed that reports be submitted within seven 
business days. Ultimately, based on public comments, NSF decided to 
allow ten business days to report, which is a more reasonable period of 
time for institutions to convey information. Submission necessitates 
coordination between multiple offices, which takes time.
    NASA Response: NASA has revised the reporting requirement to allow 
recipients 10 business days to report from the date of a finding/
determination, the date of the placement of a Co-I on leave or the 
imposition of another administrative action.
    Comment 2: NASA is requesting that reports be sent to an email 
address. However, email may not be a secure form of communication. 
Given the sensitive nature of the reports, we recommend that NASA 
consider

[[Page 13942]]

creating a secure website to receive these reports. Again, in response 
to public comments, NSF created a secure website for reporting, and we 
ask NASA to do the same. NASA's expectations about what should occur if 
a reportable instance happens at a subrecipient institution is not 
clear. The Notice reads: ``(d) Recipient agrees to insert the substance 
of this term and condition in any subaward/subcontract involving a co-
investigator.
    Recipient will be responsible for ensuring that all reports, 
including those related to co-investigators, comply with this term and 
condition.'' This could mean a number of different things, including:
    a. The subrecipient institution is responsible for submitting 
reports to NASA, or
    b. The subrecipient institution must provide information to the 
recipient, who ensures that all required data elements are included 
prior to the recipient submitting the report, or
    c. The subrecipient institution must provide information to the 
recipient, who ensures that all required data elements are included 
prior to the subrecipient submitting the report, or
    d. The subrecipient institution must provide a certification to the 
recipient institution that, should the subrecipient make a report to 
NASA, it will do so in compliance with the reporting requirements.
    As written, the language does not provide clear direction to the 
recipient and subrecipient. An area of concern is privacy. Should an 
administrative action be taken or administrative leave imposed in 
anticipation of investigating an allegation, the investigation may 
result in a conclusion that a violation did not occur. In this case, an 
individual's reputation may be harmed if entities other than those with 
a need to know are privy to the information. NASA should clarify 
expectations and responsibilities for both the recipient and 
subrecipient and do so in a manner that protects privacy. To align with 
NSF, we recommend that NASA consider requiring that reports be 
submitted directly from the subrecipient to NASA.
    NASA Response: In response to the recommendation that NASA create a 
secure website to receive these reports, NASA has developed a secure 
mechanism by which the notifications will be routed directly to the 
Office of Diversity and Equal Opportunity, which will limit access to 
only those NASA personnel with an express need to know. NASA also has 
revised the term and condition to make clear to those submitting 
notifications not to include names other than the PI or Co-I. In 
response to the recommendation that NASA should clarify expectations 
and responsibilities for both the recipient and subrecipient, NASA has 
revised the term and condition to require the Authorized Organizational 
Representative of the subrecipient institution to notify NASA directly.

Cheryl Parker,
Federal Register Liaison Officer.
[FR Doc. 2020-04815 Filed 3-9-20; 8:45 am]
BILLING CODE 7510-13-P