Reporting Requirements Regarding Findings of Harassment, Sexual Harassment, Other Forms of Harassment, or Sexual Assault
| Published date | 10 March 2020 |
| Citation | 85 FR 13934 |
| Record Number | 2020-04815 |
| Section | Notices |
| Court | National Aeronautics And Space Administration |
Federal Register, Volume 85 Issue 47 (Tuesday, March 10, 2020)
[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
