Foreign Agricultural Service
Forest Service
Rural Utilities Service
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
Food and Drug Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Geological Survey
Indian Affairs Bureau
National Park Service
Drug Enforcement Administration
Federal Bureau of Investigation
Federal Aviation Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Comptroller of the Currency
Foreign Assets Control Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Bureau of Consumer Financial Protection.
Advisory opinion.
The Consumer Financial Protection Bureau (Bureau) is issuing this advisory opinion to outline certain obligations of consumer reporting agencies and consumer report users under section 604 of the Fair Credit Reporting Act (FCRA). This advisory opinion explains that the permissible purposes listed in FCRA section 604(a)(3) are consumer specific, and it affirms that a consumer reporting agency may not provide a consumer report to a user under FCRA section 604(a)(3) unless it has reason to believe that all of the consumer report information it includes pertains to the consumer who is the subject of the user's request. The Bureau notes that disclaimers will not cure a failure to have a reason to believe that a user has a permissible purpose for a consumer report provided pursuant to FCRA section 604(a)(3). This advisory opinion also reminds consumer report users that FCRA section 604(f) strictly prohibits a person who uses or obtains a consumer report from doing so without a permissible purpose.
This advisory opinion is effective on July 12, 2022.
Seth Caffrey, Pavneet Singh, Laura Stack, or Ruth Van Veldhuizen, Senior Counsels, Office of Regulations at (202) 435-7700 or
The Bureau is issuing this advisory opinion through the procedures for its Advisory Opinions Policy.
Consumer reporting agencies collect and assemble or evaluate information about, among other things, the credit, criminal, employment, and rental histories of hundreds of millions of Americans. They package this information into consumer reports,
The FCRA regulates consumer reporting.
The FCRA protects consumer privacy in multiple ways, including by limiting the circumstances under which consumer reporting agencies may disclose consumer information. For example, FCRA section 604, entitled “Permissible purposes of consumer reports,” identifies an exclusive list of “permissible purposes” for which consumer reporting agencies may provide consumer reports,
In addition to imposing permissible purpose limitations on consumer reporting agencies, the FCRA limits the circumstances under which third parties may obtain and use consumer report information from consumer reporting agencies. FCRA section 604(f) provides that “a person shall not use or obtain a
The FCRA's permissible purpose provisions are thus central to the statute's protection of consumer privacy. Consumers suffer harm when consumer reporting agencies provide consumer reports to persons who are not authorized to receive the information or when recipients of consumer reports obtain or use such reports for purposes other than permissible purposes. These harms include the invasion of consumers' privacy, as well as reputational, emotional, physical, and economic harms. The Bureau and the Federal Trade Commission (FTC) have collectively brought numerous enforcement actions to address violations of the FCRA's permissible purpose provisions.
In light of the importance of the FCRA's permissible purpose provisions to the protection of consumer privacy, the Bureau is issuing this advisory opinion to affirm that consumer reporting agencies may not provide a consumer report pursuant to FCRA section 604(a) under any circumstance not expressly permitted by this section. In particular, the permissible purposes identified in FCRA section 604(a)(3) are consumer specific—that is, they apply only with respect to the consumer who is the subject of the user's request—and a consumer reporting company may not provide a consumer report to a user under FCRA section 604(a)(3) unless it has reason to believe that all of the consumer report information it includes pertains to the consumer who is the subject of the user's request. For example, consumer reporting agencies violate the FCRA's permissible purpose provisions if they provide consumer reports on multiple consumers (
Section C.1 of this advisory opinion applies to all “consumer reporting agencies,” as that term is defined in FCRA section 603(f). Section C.2 of this advisory opinion applies to all persons that obtain or use, or seek to obtain or use, “consumer reports,” as that term is defined in FCRA section 603(d).
Section 604(a) of the FCRA identifies a limited set of “permissible purposes” for which a consumer reporting company may provide a consumer report to a user.
The Bureau's interpretation is based on the plain language of FCRA section
The Bureau's interpretation also is consistent with the FCRA's purpose and structure. As explained in part I.A, Congress enacted the FCRA in part to address “a need to insure that consumer reporting agencies exercise their grave responsibilities with . . . a respect for the consumer's right to privacy.”
A consumer reporting company may not provide a consumer report under FCRA section 604(a)(3) unless it has reason to believe that the user has a permissible purpose with respect to the consumer about whom the report is requested. A user's request to a consumer reporting company for a report about a consumer does not give the consumer reporting company a reason to believe that the user has a permissible purpose to obtain a consumer report about other consumers. Accordingly, a consumer reporting company may not provide a consumer report under FCRA section 604(a)(3) unless it has reason to believe that all of the consumer report information it includes pertains to the consumer who is the subject of the user's request.
The use of poor matching procedures, such as name-only matching, can lead to violations of the FCRA's permissible purpose provisions. As the Bureau has observed, some consumer reporting agencies obtain information from sources that do not have or use identifying information other than consumer names, and they include such information in consumer reports without taking additional steps to match the information to the consumer who is the subject of the report.
For example, when a consumer reporting company conducts a public records search using name-only matching and identifies one or more individuals with the same name as the consumer who is the subject of the user's request, it sometimes might provide the user with a report containing a possible match or list of possible matches instead of taking further steps to match the information to the specific consumer who is the subject of the request.
The Bureau is aware that some consumer reporting agencies that use inadequate matching procedures include disclaimers with their consumer reports. For example, one consumer reporting company stated when providing a consumer report: “This record is matched by First Name, Last Name ONLY and may not belong to your subject. Your further review of the State Sex Offender Registry is required in order to determine if this is your subject.”
FCRA section 604(f) prohibits a person from using or obtaining a consumer report “unless . . . the consumer report is obtained for a purpose for which the consumer report is authorized to be furnished under [FCRA section 604]” and “the purpose is certified in accordance with FCRA section 607 by a prospective user of the report through a general or specific certification.”
Users of consumer reports must ensure that they do not violate consumer privacy by obtaining consumer reports when they lack a permissible purpose for doing so. For example, in 2018 a company settled Bureau allegations that it violated FCRA section 604(f) when its agents obtained consumer reports for consumers who were not seeking an extension of credit from the company and the company had no other permissible purpose for the consumer reports it obtained.
This advisory opinion is an interpretive rule issued under the Bureau's authority to interpret the FCRA, including under section 1022(b)(1) of the Dodd-Frank Wall Street Reform and Consumer Protection Act,
As an interpretive rule, this advisory opinion is exempt from the notice-and-comment rulemaking requirements of the Administrative Procedure Act.
Pursuant to the Congressional Review Act,
Commodity Futures Trading Commission.
Notification of 2021 schedule of fees; correction.
The Commodity Futures Trading Commission (Commission) is correcting a document published in the
Each self-regulatory organization is required to remit electronically the applicable fee on or before August 16, 2022.
Joel Mattingley, Chief Financial Officer, Commodity Futures Trading Commission; (202) 418-5310; Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581;
In FR Rule Doc. 2022-13141, appearing on page 36409 in the
Coast Guard, DHS.
Notification of enforcement of regulation.
The Coast Guard will enforce a special local regulation for the Poquoson Seafood Festival Workboat Races on the Back River, VA, on September 18, 2022, to provide for the safety of life on navigable waterways during this event. Coast Guard regulations for marine events within the Fifth Coast Guard District identifies the regulated area for this event in Poquoson, VA. During the enforcement periods, the operator of any vessel in the regulated area must comply with directions from the Patrol Commander or local law enforcement vessel approved by the Captain of the Port (COTP).
The regulations in 33 CFR 100.501 will be enforced for the location identified for the Poquoson Seafood Festival Workboat Races in table 3 to paragraph (i)(3) to § 100.501 from 10 a.m. until 6 p.m. on September 18, 2022.
If you have questions about this notification of enforcement, call or email LCDR Ashley Holm, Chief, Waterways Management Division, Sector Virginia, U.S. Coast Guard; telephone 757-668-5580; email
The Coast Guard will enforce the special local regulation in 33 CFR 100.501 for the Poquoson Seafood Festival Workboat Races from 10 a.m. to 6 p.m. on September 18, 2022. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for marine events within the Fifth Coast Guard District, § 100.501, specifies the location of the regulated area for the Poquoson Seafood Festival Workboat Races which encompasses portions of the Back River. During the enforcement periods, if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or local law enforcement vessel approved by the COTP.
In addition to this notification of enforcement in the
Coast Guard, DHS.
Notification of enforcement of regulation.
The Coast Guard will enforce special local regulations for the 3 Rivers Road Runners Columbia River Cross Channel Swim September 10, 2022, to provide for the safety of life on navigable waterways during this event. Our regulation for marine events within the Thirteenth Coast Guard District identifies the regulated area for this event in Pasco, WA. During the enforcement periods, the operator of any vessel in the regulated area must comply with directions from the Patrol Commander or any official patrol vessel. Official patrol vessels may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the Captain of the Port, Sector Columbia River.
The regulations in 33 CFR 100.1302 will be enforced on September 10, 2022 from 7:30 a.m. until 10:30 a.m.
If you have questions about this notification of enforcement, call or email LT Sean Murphy, Waterways Management Division, Marine Safety Unit Portland, Coast Guard; telephone 503-240-9319, email
The Coast Guard will enforce special local regulations in 33 CFR 100.1302 for the Columbia River Cross Channel Swim regulated area from 7:30 a.m. to 10:30 a.m. on September 10, 2022. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for marine events within the Thirteenth Coast Guard District, § 100.1302, specifies the location of the regulated area for the Columbia River Cross Channel Swim which encompasses all navigable waters, bank-to-bank of the Columbia River in Pasco, Washington, between river mile 332 and river mile 335. During the enforcement period, as reflected in § 100.1302, if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any official patrol vessel.
In addition to this notification of enforcement in the
Coast Guard, DHS.
Final rule.
The Coast Guard is amending the anchorage regulations for the Delaware Bay and River, and adjacent waters, by establishing two offshore deep-water anchorages. The purpose of this rule is to improve navigation safety by accommodating recent and anticipated future growth in vessel size and the volume of vessel traffic entering the Delaware Bay and River, and to preserve areas traditionally used or needed for anchoring.
This rule is effective August 11, 2022.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rule, call or email Lieutenant Elizabeth Marshall, Sector Delaware Bay, U.S. Coast Guard; telephone (215) 271-4851, email
In 2011, the Coast Guard received requests to formally establish anchorages in the Atlantic Ocean offshore from the Delaware coast in response to the Atlantic Coast Port Access Route Study (ACPARS). The ACPARS is available at
On November 29, 2019, the Coast Guard published a Notice of Inquiry (NOI) in the
After considering all comments on the NOI, the Coast Guard published a Notice of Proposed Rulemaking (NPRM) in the
The legal basis and authorities for this rule are found in 46 U.S.C. 70006 and 33 CFR 1.05-1, DHS Delegation No. 0170.1, which collectively authorize the Coast Guard to propose, establish, and define regulatory anchorage grounds.
The purpose of this rule is to improve navigation safety by accommodating recent and anticipated future growth in cargo vessel size and volume of vessel traffic entering the Delaware Bay and River, and to preserve areas traditionally used or needed for anchoring.
As noted above, we received one comment on our NPRM published March 22, 2022. That comment had two parts. First, that we consider revising the regulatory language used to describe the anchorage coordinates in order to aid cartography and comprehension. Second, that we consider the impact of a sunken wreck located within the area of Anchorage D—Indian River on anchoring vessels. In this section, we discuss how we responded to each part of this comment and the Final Rule.
Regarding the language used in the Rule, the comment recommended revising paragraphs (a)(19) and (a)(20) by removing text reading, “The waters bounded by a line connecting the following points:,” and replacing it
The comment identifies a sunken wreck located at 74°50′32.463″ W, 38°30′31.788″ N (WGS 1984), which is located within the boundaries of Anchorage D—Indian River and requests the Coast Guard determine the possibility of adverse effects caused by this obstruction in the anchorage ground. The Coast Guard finds that this wreckage is relatively small in nature compared to the overall size of the anchorage area and charted depth of water, which leaves sufficient area within the anchorage for the use of vessels to anchor away from this obstruction. The Coast Guard also believes this is a well-documented and well-charted wreckage, and that a prudent mariner would avoid anchoring over such an object. The Coast Guard finds that overall risk of adverse effects from wreckage to be very low and made no changes to this rule in response.
This rule formally establishes two new anchorage grounds, Anchorage C—Cape Henlopen and Anchorage D—Indian River. Anchorage C—Cape Henlopen will be located in the Atlantic Ocean approximately 9.4 miles east of the Delaware coast in naturally deep water with charted depths between 41 and 85 feet. Anchorage D—Indian River will be located in the Atlantic Ocean beginning approximately 6 miles east of the Delaware coast in naturally deep water with charted depths between 40 and 85 feet. The specific coordinates for these anchorage grounds are included in the regulatory text at the end of this document.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the location and size of the proposed anchorage grounds, as well as the vessel traffic and anchoring data provided by the Coast Guard Navigation Center. The regulation would ensure approximately 27 square miles of anchorage grounds are designated to provide necessary commercial deep draft anchorages and enhance the navigational safety of commercial vessels transiting to, from, and within the Delaware Bay and River. The impacts on routine navigation are expected to be minimal because the proposed anchorage areas are located outside of the established traffic separation zones and are consistent with current anchoring habits of vessels that call on the Delaware River. When not occupied, vessels would be able to maneuver in, around, and through the anchorages.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard did not receive any comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
The number of small entities impacted and the extent of the impact, if any, is expected to be minimal. Anchorage C—Cape Henlopen and Anchorage D—Indian River are located in an area of the Atlantic Ocean, which is not a popular or productive fishing location. Further, the location is not in an area routinely transited by vessels heading to, or returning from, known fishing grounds. Finally, the anchorage is located in an area that is not currently used by small entities, including small vessels, for anchoring due to the depth of water naturally present in the area.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves amending the regulations for Delaware Bay and River anchorage grounds by establishing two new anchorage regulations; Anchorage C—Cape Henlopen and Anchorage D—Indian River. It is categorically excluded from further review under paragraph L59(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Anchorage grounds.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 110 as follows:
33 U.S.C. 471, 2071; 46 U.S.C. 70034; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.
(a) * * *
(18)
(19)
(20)
Coast Guard, DHS.
Notification of enforcement of regulation.
The Coast Guard will enforce a safety zone for the Virginia Lake Festival on July 16, 2022, Clarksville, VA, to provide for the safety of life on navigable waterways during this event. Coast Guard regulations for marine events within the Fifth Coast Guard District identifies the regulated area for this event. During the enforcement period, entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Virginia.
The regulations in 33 CFR 165.506 will be enforced for the location identified as Item 12 in table 3 to paragraph (h)(3) from 9:30 p.m. until 10 p.m. on July 16, 2022.
If you have questions about this notification of enforcement, call or email LCDR Ashley Holm, Chief, Waterways Management Division, Sector Virginia, U.S. Coast Guard; telephone 757-668-5580 email
The Coast Guard will enforce the safety zone in 33 CFR 165.506 for the Virginia Lake Festival regulated area from 9:30 p.m. to 10 p.m. on July 16, 2022. This action is being taken to provide for the safety of life on navigable waterways during this event. Coast Guard regulations for safety zones within the Fifth Coast Guard District, § 165.506, specifies the location of the regulated area for the Virginia Lake Festival which encompasses portions of the John H. Kerr Reservoir. During the enforcement periods, entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Virginia.
In addition to this notification of enforcement in the
Office of Special Education and Rehabilitative Services, Department of Education.
Final priority and requirements.
The Department of Education (Department) announces a priority, including requirements, for the Rhonda Weiss National Technical Assistance Center to Improve State Capacity to Collect, Report, Analyze, and Use Accurate IDEA Data in Accessible Formats (Accessible Data Center) under the Technical Assistance on State Data Collection program, Assistance Listing Number 84.373Q. The Department may use this priority for competitions in fiscal year (FY) 2022 and thereafter. We
The final priority and requirements are effective August 11, 2022.
Rebecca Smith, U.S. Department of Education, 400 Maryland Avenue SW, Room 5038B, Potomac Center Plaza, Washington, DC 20202-5108. Telephone: (202) 258-9436. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
We published a notice of proposed priority and requirements (NPP) for this program in the
There are no differences between the proposed priority and the final priority other than minor technical changes.
Generally, we do not address technical and other minor changes, or suggested changes the law does not authorize us to make under the applicable statutory authority. In addition, we do not address general comments that raised concerns not directly related to the priority.
Under this priority, the Department provides funding for a cooperative agreement to establish and operate the Rhonda Weiss National Technical Assistance Center to Improve State Capacity to Collect, Report, Analyze, and Use Accurate IDEA Data in Accessible Formats (Accessible Data Center).
The Accessible Data Center will provide TA to help States better meet current and future IDEA Part B and Part C data collection and reporting requirements, improve data quality, and analyze and use the data reported to provide equitable access and visualizations to persons with disabilities. The Accessible Data Center's work will comply with the privacy and confidentiality protections in the IDEA Part B and C regulations, which incorporate provisions in the Family Educational Rights and Privacy Act (FERPA) and include IDEA-specific provisions and will not provide the Department with access to child-level data. The Accessible Data Center must achieve, at a minimum, the following expected outcomes:
(a) Improved accessibility of the IDEA Part B and Part C data reported and published under IDEA sections 616 and 618;
(b) Increased capacity of States to collect, report, analyze, and use high-quality IDEA Part B and Part C data in accessible formats;
(c) Development of an open license, accessible software program, for the publication of dynamic data products (consistent with the open licensing requirement in 2 CFR 3474.20); and
(d) Development and documentation of a knowledge base related to the accessible reporting and dynamic presentation of data.
In addition, the Accessible Data Center must provide a range of targeted and general TA products and services for improving States' capacity to accurately collect, report, analyze, and use IDEA section 616 and section 618 data in accessible formats for persons with disabilities, particularly those with blindness, visual impairments, motor impairments, and intellectual disabilities. Such TA must include, at a minimum—
(a) Working with the Department to develop open-source electronic tools to assist States in reporting their IDEA data in accessible formats that allow for dynamic visualizations that can be manipulated for persons with and without disabilities. The tools must utilize accessibility best practices, exceed all Federal accessibility requirements, and be designed to accommodate continued enhancements to meet States' changing needs and updates in accessibility best practice;
(b) Developing a plan to maintain appropriate functionality of the open-source electronic tools described in paragraph (a) as changes are made to data collections, reporting requirements, accessibility best practices, and accessibility requirements;
(c) Developing universal TA products, including a user manual and instructions, and conducting training with State staff on use of the open-source electronic tools; and
(d) Developing white papers and presentations that include tools and solutions to challenges in the collection, reporting, analysis, and use of IDEA data in accessible formats.
In addition to these programmatic requirements, to be considered for funding under this priority, applicants must meet the application and administrative requirements in this priority, which are:
(a) Demonstrate, in the narrative section of the application under “Significance of the Project,” how the proposed project will—
(1) Address State challenges in collecting, analyzing, reporting, and using the IDEA Part B and Part C data reported under IDEA sections 616 and 618 in formats that are both accessible to persons with visual impairmentsand/or other disabilities and also dynamic, to promote enhanced data use that will improve data quality and identify programmatic strengths and areas for improvement. To meet this requirement the applicant must—
(i) Demonstrate knowledge of IDEA data collections, including data required under IDEA sections 616 and 618;
(ii) Demonstrate knowledge of accessible reporting and dynamic visualization, and document areas for further knowledge development;
(iii) Present information about the difficulties State educational agencies (SEAs), State lead agencies (LAs), local educational agencies (LEAs), early intervention service (EIS) providers, and schools have encountered in meeting the requirements of section 504 of the Rehabilitation Act when reporting IDEA data; and
(iv) Present information about the difficulties SEAs, State LAs, LEAs, EIS providers, and schools have in developing dynamic data visualizations for public use; and
(2) Improve outcomes in collecting, analyzing, reporting, and using the IDEA Part B and Part C data in formats that are accessible to persons with visual impairments and/or other disabilities.
(b) Demonstrate, in the narrative section of the application under “Quality of project services,” how the proposed project will—
(1) Ensure equal access and treatment for members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability. To meet this requirement, the applicant must describe how it will—
(i) Identify the needs of the intended recipients and end users for TA and information; and
(ii) Ensure that products and services meet the needs of the intended TA recipients and end users;
(2) Achieve its goals, objectives, and intended outcomes. To meet this requirement, the applicant must provide—
(i) Measurable intended project outcomes; and
(ii) In Appendix A, the logic model (as defined in 34 CFR 77.1) by which the proposed project will achieve its intended outcomes that depicts, at a minimum, the goals, activities, outputs, and intended outcomes of the proposed project;
(3) Use a conceptual framework (and provide a copy in Appendix A) to develop project plans and activities, describing any underlying concepts, assumptions, expectations, beliefs, or theories, as well as the presumed relationships or linkages among these variables, and any empirical support for this framework;
(4) Be based on current research and use evidence-based practices (EBPs).
(i) The current research on the capacity of SEAs, State LAs, LEAs, and EIS providers to report and use data, specifically section 616 and section 618 data, in a manner that allows persons with vision and/or other disabilities, as well as those without, to access and dynamically manipulate data, as both a means of improving data quality and identifying strengths and areas for improvement;
(ii) How it will analyze and incorporate the views of end users regarding the accessibility of tools currently available for data collection, reporting, analysis, and use. Specifically, how it will assess the overall accessibility, data manipulability, and the accessibility of dynamic data visualizations for persons with and without disabilities; and
(iii) How the proposed project will incorporate current research, EBPs, and the needs of end users in the development and delivery of its products and services;
(5) How it will develop products and provide services that are of high quality and sufficient intensity and duration to achieve the intended outcomes of the proposed project. To address this requirement, the applicant must describe—
(i) How it proposes to identify or develop the knowledge base on the capacity needs of SEAs, State LAs, LEAs, and EIS programs/EIS providers to meet IDEA data collection and reporting requirements, data analysis, and use of the IDEA Part B and Part C data reported under IDEA sections 616 and 618 in a manner that allows individuals with vision and/or other disabilities, as well as those without, to access and dynamically manipulate data;
(ii) Its proposed approach to universal, general TA,
(iii) Its proposed approach to targeted, specialized TA,
(A) The intended recipients, including the type and number of recipients, that will receive the products and services under this approach; and
(B) Its proposed approach to measure the readiness of potential TA recipients to work with the project, assessing, at a minimum, their current infrastructure, available resources, and ability to build capacity at the local level; and
(iv) Its proposed approach to intensive, sustained TA,
(A) The intended recipients, including the type and number of recipients, that will receive the products and services under this approach;
(B) Its proposed approach to measure the readiness of SEA, State LAs, LEA, and EIS program/provider personnel to work with the project, including their commitment to the initiative, alignment of the initiative to their needs, current infrastructure, available resources, and ability to build capacity at the SEA, State LA, LEA, and EIS program/provider levels;
(C) Its proposed plan for assisting SEAs and State LAs (and LEAs, in conjunction with SEAs and EIS programs/providers, in conjunction with State LAs) to build or enhance training systems to meet IDEA Part B and Part C data collection and reporting requirements in a manner that allows individuals with vision and/or other disabilities, as well as those without, to access and dynamically manipulate data. This includes professional development based on adult learning principles and coaching;
(D) Its proposed plan for working with appropriate levels of the education system (
(E) Its proposed plan for collaborating and coordinating with Department-funded projects, including those providing data-related support to States, where appropriate, to align complementary work and jointly develop and implement products and services to meet the purposes of this priority. Such Department-funded projects include the IDEA Data Center (IDC), the Center for IDEA Early Childhood Data Systems (DaSy), the Center for IDEA Fiscal Reporting (CIFR), the Center for the Integration of IDEA Data (CIID), EdFacts, and the research and development investments of the Institute of Education Sciences/National Center for Education Statistics; and
(6) Its proposed plan to develop products and implement services that maximize efficiency. To address this requirement, the applicant must describe—
(i) How the proposed project will use technology to achieve the intended project outcomes;
(ii) With whom the proposed project will collaborate and the intended outcomes of this collaboration; and
(iii) How the proposed project will use non-project resources to achieve the intended project outcomes.
(c) In the narrative section of the application under “Quality of the project evaluation,” include an evaluation plan for the project developed in consultation with and implemented by a third-party evaluator.
(1) Articulate formative and summative evaluation questions, including important process and outcome evaluation questions. These questions should be related to the project's proposed logic model required in paragraph (b)(2)(ii) of these requirements;
(2) Describe how progress in and fidelity of implementation, as well as project outcomes, will be measured to answer the evaluation questions. Specify the measures and associated instruments or sources for data appropriate to the evaluation questions. Include information regarding reliability and validity of measures where appropriate;
(3) Describe strategies for analyzing data and how data collected as part of this plan will be used to inform and improve service delivery over the course of the project and to refine the proposed logic model and evaluation plan, including subsequent data collection;
(4) Provide a timeline for conducting the evaluation and include staff assignments for completing the plan. The timeline must indicate that the data will be available annually for the annual performance report and at the end of Year 2 for the review process; and
(5) Dedicate sufficient funds in each budget year to cover the costs of developing or refining the evaluation plan in consultation with a third-party evaluator, as well as the costs associated with the implementation of the evaluation plan by the third-party evaluator.
(d) Demonstrate, in the narrative section of the application under “Adequacy of resources,” how—
(1) The proposed project will encourage applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability, as appropriate;
(2) The proposed key project personnel, consultants, and subcontractors have the qualifications and experience to carry out the proposed activities and achieve the project's intended outcomes;
(3) The applicant and any key partners have adequate resources to carry out the proposed activities; and
(4) The proposed costs are reasonable in relation to the anticipated results and benefits, and funds will be spent in a way that increases their efficiency and cost-effectiveness, including by reducing waste or achieving better outcomes.
(e) Demonstrate, in the narrative section of the application under “Quality of the management plan,” how—
(1) The proposed management plan will ensure that the project's intended outcomes will be achieved on time and within budget. To address this requirement, the applicant must describe—
(i) Clearly defined responsibilities for key project personnel, consultants, and subcontractors, as applicable; and
(ii) Timelines and milestones for accomplishing the project tasks;
(2) Key project personnel and any consultants and subcontractors will be allocated and how these allocations are appropriate and adequate to achieve the project's intended outcomes;
(3) The proposed management plan will ensure that the products and services provided are of high quality, relevant, and useful to recipients; and
(4) The proposed project will benefit from a diversity of perspectives, including those of families, educators, TA providers, researchers, and policy makers, among others, in its development and operation.
(f) Address the following application requirements:
(1) Include, in Appendix A, personnel-loading charts and timelines, as applicable, to illustrate the management plan described in the narrative;
(2) Include, in the budget, attendance at the following:
(i) A one- and one-half day kick-off meeting in Washington, DC, or virtually, after receipt of the award, and an annual planning meeting in Washington, DC, or virtually, with the Office of Special Education Programs (OSEP) project officer and other relevant staff during each subsequent year of the project period.
(ii) A two- and one-half day project directors' conference in Washington, DC, or virtually, during each year of the project period; and
(iii) Three annual two-day trips, or virtually, to attend Department briefings, Department-sponsored conferences, and other meetings, as requested by OSEP;
(3) Include, in the budget, a line item for an annual set-aside of 5 percent of the grant amount to support emerging needs that are consistent with the proposed project's intended outcomes, as those needs are identified in consultation with, and approved by, the OSEP project officer. With approval from the OSEP project officer, the project must reallocate any remaining funds from this annual set-aside no later than the end of the third quarter of each budget period;
(4) Maintain a high-quality website, with an easy-to-navigate design, that meets government or industry-recognized standards for accessibility; and
(5) Include, in Appendix A, an assurance to assist OSEP with the transfer of pertinent resources and products and to maintain the continuity of services to States during the transition to this new award period and at the end of this award period, as appropriate.
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
This document does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.
Under Executive Order 12866, the Office of Management and Budget (OMB) must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy,
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866. Pursuant to the Congressional Review Act (5 U.S.C. 801
We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing the final priority only on a reasoned determination that its benefits justify its costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action does not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.
In accordance with these Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.
The Department believes that the costs associated with the final priority will be minimal, while the benefits are significant. The Department believes that this regulatory action does not impose significant costs on eligible entities. Participation in this program is voluntary, and the costs imposed on applicants by this regulatory action will be limited to paperwork burden related to preparing an application. The benefits of implementing the program to focus attention on an identified need to improve State capacity to accurately collect, report, analyze, and use the IDEA Part B and Part C data reported under IDEA sections 616 and 618, in accessible formats for persons with disabilities, will outweigh the costs incurred by applicants, and the costs of carrying out activities associated with the application will be paid for with program funds. For these reasons, we have determined that the costs of implementation will not be burdensome for eligible applicants, including small entities.
The Department believes that the priority is needed to administer the program effectively.
The final priority contains information collection requirements that are approved by OMB under control number 1820-0028; the final priority does not affect the currently approved data collection.
The small entities that this final regulatory action will affect are LEAs, including charter schools that operate as LEAs under State law; institutions of higher education; other public agencies; private nonprofit organizations; Indian Tribes or Tribal organizations; and for-profit organizations. We believe that the costs imposed on an applicant by the final priority will be limited to paperwork burden related to preparing an application and that the benefits of this final priority will outweigh any costs incurred by the applicant.
Participation in the Accessible Data Center grant program is voluntary. For this reason, the final priority will impose no burden on small entities unless they apply for funding under the program. We expect that in determining whether to apply for Accessible Data Center funds, an eligible entity will evaluate the requirements of preparing an application and any associated costs and weigh them against the benefits likely to be achieved by receiving a grant to establish and operate the Accessible Data Center. An eligible entity will most likely apply only if it determines that the likely benefits exceed the costs of preparing an application.
We believe that the final priority will not impose any additional burden on a small entity applying for a grant than the entity would face in the absence of the final action. That is, the length of the applications those entities would submit in the absence of the final regulatory action and the time needed to prepare an application will likely be the same.
This final regulatory action will not have a significant economic impact on a small entity once it receives a grant because it will be able to meet the costs of compliance using the funds provided under this program.
This document provides early notification of our specific plans and actions for this program.
You may also access documents of the Department published in the
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving revisions to the Oregon state implementation plan (SIP) submitted by the State of Oregon (Oregon) on December 9, 2020 and December 22, 2021. The revisions update the SIP-approved vehicle inspection program for the Portland and Medford areas. The EPA is approving the SIP submittal as consistent with Clean Air Act (Act or CAA) requirements. Additionally, the EPA is making a technical correction to the Medford-Ashland particulate matter (PM
This action is effective on August 11, 2022.
The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2021-0393. All documents in the docket are listed on the
Claudia Vaupel, (206) 553-6121,
Throughout this document whenever “we,” “us,” or “our” is used, it is intended to refer to the EPA.
On May 11, 2022, EPA proposed to approve Oregon's SIP revision for the vehicle inspection program (VIP) in the Portland and Medford areas (87 FR 28783). The SIP revision updates the rules to improve clarity, add requirements for the onboard diagnostics system, and remove references to the enhanced dynamometer test that is no longer required as of January 1, 2007.
The EPA is approving the SIP revision submitted by Oregon on December 9, 2020 and December 22, 2021. We are approving the following rule amendments (state effective November 19, 2020): OAR 340-256-0010, -0100, -0130, -0200, -0300, -0310, -0330, -0340, -0355, -0356, -0370, -0380, -0390, -0400, -0420, -0440, -0450, -0465, -0470, -0350 (repeal), -0410 (repeal), -0460 (repeal). The EPA is also correcting the nomenclature in the Medford-Ashland PM
In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of certain provisions and removing certain provisions from incorporation by reference, as described in sections I and II of this preamble. The EPA has made, and will continue to make, these materials generally available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and it will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 12, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; inseason adjustment; request for comments.
This document announces six additional season dates for Pacific halibut recreational fisheries in the International Pacific Halibut Commission's regulatory Area 2A off Washington, Oregon, and California. Specifically, this action adds the dates of July 14-16 and 28-30 for the Oregon Central Coast subarea. This action is intended to conserve Pacific halibut and provide angler opportunity where available.
This action is effective July 7, 2022, through October 31, 2022. Submit comments on or before July 27, 2022.
Submit your comments, identified by NOAA-NMFS-2022-0003, by either of the following methods:
•
•
Joshua Lindsay, phone: 562-980-4034, fax: 562-980-4018, or email:
On April 1, 2022, NMFS published a final rule approving changes to the Pacific halibut Area 2A Catch Sharing Plan and implementing recreational (sport) management measures for 2022 (87 FR 19007), as authorized by the Northern Pacific Halibut Act of 1982 (16 U.S.C. 773-773(k)). The 2022 Catch Sharing Plan provides a recommended framework for NMFS' annual management measures and subarea allocations based on the 2022 Area 2A Pacific halibut catch limit of 1,490,000 pounds (lb) (675.9 metric tons (mt)) set by the International Pacific Halibut Commission (IPHC). These Pacific halibut management measures include recreational fishery season dates and subarea allocations.
Federal regulations at 50 CFR 300.63(c), “Flexible Inseason Management Provisions for Sport Halibut Fisheries in Area 2A,” allow the NMFS' Regional Administrator to modify annual regulations during the season. These inseason provisions allow the Regional Administrator to modify sport (recreational) fishing periods, bag limits, size limits, days per calendar week, and subarea quotas, if it is determined it is necessary to meet the allocation objectives and the action will not result in exceeding the catch limit.
NMFS has determined that, due to lower than expected landings in portions of Oregon, specifically the Central Coast subarea, inseason action to modify the 2022 annual regulations for the recreational fishery is warranted at this time to provide additional opportunity for fishery participations to achieve the Area 2A allocations as published in the final rule (87 FR 19007; April 1, 2022). As stated above, inseason modification of the fishing season is authorized by Federal regulations at 50 CFR 300.63(c). After consulting with IPHC, the Council, and the Oregon Department of Fish and Wildlife (ODFW), NMFS determined the following inseason action is necessary to meet the management objective of attaining the subarea allocations, and is consistent with the inseason management provisions allowing for the modification of sport fishing periods and sport fishing days per calendar week. Notice of these additional dates and closure of the fisheries will also be announced on the NMFS hotline at 206-526-6667 or 800-662-9825.
After consulting with ODFW, it was determined that in order for anglers to have the opportunity to achieve the subarea allocation in Central Oregon, and with little risk of the subarea or coastwide allocation being exceeded, additional season dates were warranted for participants in the Oregon Central Coast subarea. Therefore, through this action NMFS is announcing new season
Notice of these additional dates will also be announced on the NMFS hotline at 206-526-6667 or 800-662-9825.
Weekly catch monitoring reports for the recreational fisheries in Washington, Oregon, and California are available on their respective state Fish and Wildlife agency websites. NMFS and the IPHC will continue to monitor recreational catch obtained via state sampling procedures until NMFS has determined there is not sufficient allocation for another full day of fishing, and the area is closed by the IPHC, or the season closes on September 30, whichever is earlier.
NMFS issues this action pursuant to the Northern Pacific Halibut Act of 1982. This action is taken under the regulatory authority at 50 CFR 300.63(c), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(3)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. ODFW provided updated landings data to NMFS on June 23, 2022, showing that the fishery participants in the recreational fishery off of the Oregon Central Coast had only caught 49 percent of the subarea allocation. NMFS uses fishing rates from previous years to determine the number of recreational fishing dates needed to attain subarea allocations. NMFS implemented season dates of May 12, seven days per week, through June 30, including more season dates in 2022 than in 2021. Even with the fishery open each day for over half of May and all of June, the level of attainment of the allocation for 2022 is substantially lower than anticipated when the 2022 final rule setting the 2022 recreational fishery season dates was developed. This action should be implemented as soon as possible to allow fishery participants to take advantage of the additional fishing dates prior to the end of the season. As the fishery closes on October 31, 2022, implementing this action through proposed and final rulemaking would limit the benefit this action would provide to fishery participants. Without implementation of additional season dates, a significant portion of the Oregon Central Coast subarea allocation is unlikely to be harvested, limiting economic benefits to the participants and not meeting the goals of the Catch Sharing Plan and the 2022 management measures. It is necessary that this rulemaking be implemented in a timely manner so that planning for these new fishing days can take place, and for business and personal decision making by the regulated public impacted by this action, which includes recreational charter fishing operations, associated port businesses, and private anglers who do not live near the coastal access points for this fishery, among others. To ensure the regulated public is fully aware of this action, notice of this regulatory action will also be provided to anglers through a telephone hotline, news release, and by the relevant state fish and wildlife agencies. NMFS will receive public comments for 15 days after publication of this action, in accordance with 50 CFR 300.63(c)(4)(ii). No aspect of this action is controversial, and changes of this nature were anticipated in the process described in regulations at 50 CFR 300.63(c).
For the reasons discussed above, there is also good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date and make this action effective immediately upon filing for public inspection, as a delay in effectiveness of this action would constrain fishing opportunity and be inconsistent with the goals of the Catch Sharing Plan and current management measures, as well as potentially limit the economic opportunity intended by this rule to the associated fishing communities. NMFS regulations allow the Regional Administrator to modify sport fishing periods, bag limits, size limits, days per calendar week, and subarea quotas, provided that the action allows allocation objectives to be met and will not result in exceeding the catch limit for the subarea. NMFS recently received information on the progress of landings in the recreational fisheries in the Oregon subarea, indicating additional dates should be added to the fishery to ensure optimal and sustainable harvest of the subarea allocation. As stated above, it is in the public interest that this action is not delayed, because a delay in the effectiveness of these new dates would not allow the allocation objectives of the recreational Pacific halibut fishery to be met.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Inseason modification of 2022 management measures.
NMFS announces four inseason actions in the 2022 ocean salmon fisheries. These inseason actions modify the commercial ocean salmon fisheries in the area from the United States (U.S.)/Canada border to Cape Falcon, Oregon.
The effective dates for the inseason actions are set out in this document under the heading Inseason Actions and the actions remain in effect until superseded or modified.
Dana Preedeedilok at 562-980-4019, Email:
The 2022 annual management measures for ocean salmon fisheries (87 FR 29690, May 16, 2022), announced management measures for the commercial and recreational fisheries in the area from the U.S./Canada border to the U.S./Mexico border, effective from 0001 hours Pacific Daylight Time (PDT), May 16, 2022, until the effective date of the 2023 management measures, as published in the
Management of the salmon fisheries is divided into two geographic areas: north of Cape Falcon (NOF) (U.S./Canada
Consultations with the Council Chairperson on these inseason actions occurred on May 16, 2022; May 25, 2022; and June 9, 2022. Representatives from NMFS, Washington Department of Fish and Wildlife, Oregon Department of Fish and Wildlife, and Council staff participated in these consultations.
These inseason actions were announced on NMFS' telephone hotline and U.S. Coast Guard radio broadcast on the date of the consultations (50 CFR 660.411(a)(2)).
The NMFS West Coast Regional Administrator (RA) considered the landings of Chinook salmon to date, fishey catch and effort to date, the amount of quota remaining, and the timing of the action relative to the length of the season, and determined that these inseason actions were necessary to avoid exceeding the subarea quotas set preseason, provide greater fishing opportunity, and provide economic benefit to the fishery dependent community. Inseason actions to modify quotas and/or fishing seasons is authorized under 50 CFR 660.409(b)(1)(i).
All other restrictions and regulations remain in effect as announced for the 2022 ocean salmon fisheries (87 FR 29690, May 16, 2022).
The RA determined that these inseason actions were warranted based on the best available information on Pacific salmon abundance forecasts, landings to date, anticipated fishery effort and projected catch, and the other factors and considerations set forth in 50 CFR 660.409. The states manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone (3-200 nautical miles (5.6-370.4 kilometers) off the coasts of the states of Washington, Oregon, and California) consistent with these Federal actions. As provided by the inseason notice procedures at 50 CFR 660.411, actual notice of the described regulatory action was given, prior to the time the action was effective, by telephone hotline numbers 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.
NMFS issues these actions pursuant to section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). These actions are authorized by 50 CFR 660.409, which was issued pursuant to section 304(b) of the MSA, and are exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(3)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. Prior notice and opportunity for public comment on this action was impracticable because NMFS had insufficient time to provide for prior notice and the opportunity for public comment between the time Chinook salmon abundance, catch, and effort information were developed and fisheries impacts were calculated, and the time the fishery modifications had to be implemented in order to ensure that fisheries are managed based on the best scientific information available and that fishery participants can take advantage of the additional fishing opportunity these changes provide. As previously noted, actual notice of the regulatory actions was provided to fishers through telephone hotline and radio notification. These actions comply with the requirements of the annual management measures for ocean salmon fisheries (87 FR 29690, May 16, 2022), the Fishery Management Plan (FMP), and regulations implementing the FMP under 50 CFR 660.409 and 660.411.
There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date, as a delay in effectiveness of this action would restrict fishing at levels inconsistent with the goals of the FMP and the current management measures.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Leonardo S.p.a. Model A109, A109A, A109A II, A109C, A109K2, A109E, A109S, and AW109SP helicopters modified by Supplemental Type Certificate (STC) SR01812LA. This proposed AD was prompted by a report of certain floats not deploying due to a faulty plunger assembly. This proposed AD would require repairing or replacing certain float assemblies. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by August 26, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For service information identified in this NPRM, contact Apical Industries, Inc., Jason Gardiner, 3030 Enterprise Ct., Vista, CA 92081, United States; phone: (760) 542-2096; email:
You may examine the AD docket at
Johann S. Magana, Aerospace Engineer, Cabin Safety & Environmental Systems Section, Los Angeles ACO Branch, Compliance & Airworthiness Division, FAA, 3960 Paramount Blvd., Lakewood, CA 90712; telephone (562) 627-5322; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Johann S. Magana, Aerospace Engineer, Cabin Safety & Environmental Systems Section, Los Angeles ACO Branch, Compliance & Airworthiness Division, FAA, 3960 Paramount Blvd., Lakewood, CA 90712; telephone (562) 627-5322; email
The FAA received a report of two forward floats not deploying after an inadvertent activation. It was discovered that the plunger assembly caused the forward floats to not deploy. Further investigation revealed that a design change in 2009 of the plunger assembly inadvertently changed the position of the bushing from a press fit to a threaded fit. The dimensions for the threaded fit were preventing the bushing from fully clearing the ball bearings when bottom out on the solenoid on the valve assemblies. The plunger assembly is contained within the float assembly and reservoir assembly. An emergency float kit consists of float assemblies, reservoir assemblies, and additional components. These emergency float kits (634.4100 Kit Series) are installed on Leonardo S.p.a. Model A109, A109A, A109A II, A109C, A109K2, A109E, A109S, and AW109SP helicopters modified by STC SR01812LA; this STC is held by Apical Industries, Inc., d/b/a DART Aerospace (DART). This condition, if not
The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type designs.
The FAA reviewed DART Service Bulletin SB2021-05, dated December 6, 2021. This service bulletin specifies replacing certain serial-numbered float assemblies or, if the serial number is not included as part of the service bulletin, contacting DART to validate effectivity. The service bulletin also provides procedures for removing the float assemblies from the helicopter, discharging the reservoirs, shipping the float assemblies, and re-installing the float assemblies.
The FAA also reviewed DART's Instructions for Continued Airworthiness ICA109-1, Rev. U, dated October 27, 2020. This service information provides description, operation, disassembly, inspection, assembly, repair, and testing instructions as well as an illustrated parts list for emergency float kits and emergency float with life raft kits.
This proposed AD would require repairing or replacing each float assembly part number 644.0501, 644.0502, 644.0503, 644.0504, 644.0505, or 644.0506 in certain emergency float kits with a method approved by the Manager, Los Angeles ACO Branch, FAA. These actions would be required within 300 hours time-in-service or 6 months after the effective date of the final rule of this proposed AD, whichever occurs first.
The FAA estimates that this AD, if adopted as proposed, would affect 25 helicopters of U.S. registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.
Replacing each float assembly would take about 4 work-hours for an estimated cost of $340 per helicopter and up to $8,500 for the U.S. fleet. The FAA has received no definitive data that would enable the FAA to provide parts cost estimates for the proposed actions; however, according to the manufacturer, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators. The FAA does not control warranty coverage for affected operators. As a result, the FAA has included all known costs in the cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by August 26, 2022.
None.
This AD applies to Leonardo S.p.a. Model A109, A109A, A109A II, A109C, A109K2, A109E, A109S, and AW109SP helicopters, certificated in any category, modified by Supplemental Type Certificate SR01812LA with A109 Float (with/without Liferafts System) DART Aerospace 634.4100 Kit Series part number (P/N) 634.4101, 634.4102, 634.4103, 634.4104, 634.4106, or 634.4107 with float assembly P/N 644.0501, 644.0502, 644.0503, 644.0504, 644.0505, or 644.0506 installed.
Joint Aircraft System Component (JASC) Code: 2560, Emergency Equipment.
This AD was prompted by a report of two forward floats not deploying after an inadvertent activation. The FAA is issuing this AD to ensure the affected floats work as intended. The unsafe condition, if not addressed, could result in the helicopter either rolling to one side or capsizing in an event of an emergency landing on water.
Comply with this AD within the compliance times specified, unless already done.
Within 300 hours time-in-service or within 6 months after the effective date of this AD, whichever occurs first, remove each float assembly identified in paragraph (c) of this AD and repair or replace it in accordance with a method approved by the Manager, Los Angeles ACO Branch, FAA. For a repair or replacement method to be approved by the Manager, Los Angeles ACO Branch, as required by this paragraph, the Manager's approval letter must specifically refer to this AD.
(1) The Manager, Los Angeles ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Johann S. Magana, Aerospace Engineer, Cabin Safety & Environmental Systems Section, Los Angeles ACO Branch, Compliance & Airworthiness Division, FAA, 3960 Paramount Blvd., Lakewood, CA 90712; telephone (562) 627-5322; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Airbus SAS Model Airbus A350-941 and A350-1041 airplanes. This proposed AD was prompted by a determination that, in the event of rapid decompression at a specific location of the airplane, possible deflections of the passenger floor cross beams may result in wiring damages, leading to potential system losses. This proposed AD would require amending the existing airplane flight manual (AFM) to update the landing performance database, as specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by August 26, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For material that will be incorporated by reference (IBR) in this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
You may examine the AD docket at
Dan Rodina, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone 206-231-3225; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Dan Rodina, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and 206-231-3225; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0054, dated March 23, 2022 (EASA AD 2022-0054) (also referred to as the MCAI), to correct an unsafe condition for certain Airbus A350-941 and A350-1041 airplanes. EASA AD 2022-0054 supersedes EASA AD 2022-0045, dated March 16, 2022 (EASA AD 2022-0045), which was issued to correct the unsafe condition. However, the revision of the AFM referenced in EASA AD 2022-0045 did not include the required amendments.
This proposed AD was prompted by a determination that, in the event of rapid decompression at a specific location of the airplane, possible deflections of the passenger floor cross beams may result in wiring damages, leading to potential system losses. The FAA is proposing this AD to address this potential unsafe condition, which could lead to an increase of the landing distance, exceeding the value provided in the current in-flight failure data file for landing, and potentially resulting in a runway excursion. See the MCAI for additional background information.
EASA AD 2022-0054 describes procedures for revising the existing Airbus A350 AFM to update the landing performance database.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in EASA AD 2022-0054 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.
EASA AD 2022-0054 requires operators to “inform all flight crews” of revisions to the AFM, and thereafter to “operate the aeroplane accordingly.” However, this proposed AD would not specifically require those actions as those actions are already required by FAA regulations. FAA regulations require operators furnish to pilots any changes to the AFM (for example, 14 CFR 121.137), and to ensure the pilots are familiar with the AFM (for example, 14 CFR 91.505). As with any other flight crew training requirement, training on the updated AFM content is tracked by the operators and recorded in each pilot's training record, which is available for the FAA to review. FAA regulations also require pilots to follow the procedures in the existing AFM including all updates. 14 CFR 91.9 requires that any person operating a civil aircraft must comply with the operating limitations specified in the AFM. Therefore, including a requirement in this proposed AD to operate the airplane according to the revised AFM would be redundant and unnecessary. Further, compliance with such a requirement in an AD would be impracticable to demonstrate or track on an ongoing basis; therefore, a requirement to operate the airplane in such a manner would be unenforceable.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2022-0054 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2022-0054 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2022-0054 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0054. Service information required by EASA AD 2022-0054 for compliance will be available at
The FAA estimates that this proposed AD would affect 30 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by August 26, 2022.
None.
This AD applies to all Airbus SAS Model A350-941 and A350-1041 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by a determination that, in the event of rapid decompression at a specific location of the airplane, possible deflections of the passenger floor crossbeams may result in wiring damages, leading to potential system losses. The FAA is issuing this AD to address this unsafe condition, which could lead to an increase of the landing distance, exceeding the value provided in the current in-flight failure data file for landing, and potentially resulting in a runway excursion.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2022-0054, dated March 23, 2022 (EASA AD 2022-0054).
(1) Where EASA AD 2022-0054 refers to March 30, 2022 (the effective date of EASA AD 2022-0045, dated March 16, 2022), this AD requires using the effective date of this AD.
(2) Where EASA AD 2022-0054 specifies to “inform all flight crews, and thereafter, operate the aeroplane accordingly” this AD does not require those actions as those actions are already required by existing FAA operating regulations.
(3) Where the “AFM Amendment” paragraph of EASA AD 2022-0054 specifies implementing an AFM [airplane flight manual] revision, for this AD, replace the text ”implement the AFM revision, as defined in this [EASA] AD” with “revise the existing AFM to incorporate the aircraft performance database specified in the AFM revision, as defined in this [EASA] AD.”
(4) The “Remarks” section of EASA AD 2022-0054 does not apply to this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) For EASA AD 2022-0054, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(2) For more information about this AD, contact Dan Rodina, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone 206-231-3225; email
United States Patent and Trademark Office, Department of Commerce.
Notice of proposed rulemaking.
The United States Patent and Trademark Office (USPTO or Office) proposes to revise the rules of practice pertaining to patent term adjustment to require that the patent term adjustment statement regarding information disclosure statements be submitted on an Office form. Use of the Office form will streamline certain aspects of prosecution by more accurately capturing and accounting for the patent term adjustment without unnecessary back-and-forth between the USPTO and applicant. It will also save resources by eliminating the need for a manual review of the patent term adjustment statement.
Comments must be received by September 12, 2022 to ensure consideration.
For reasons of government efficiency, comments must be submitted through the Federal eRulemaking Portal at
Visit the Federal eRulemaking Portal for additional instructions on providing comments via the portal. If electronic submission of comments is not feasible due to a lack of access to a computer and/or the internet, please contact the USPTO using the contact information below (at
Kery Fries, Senior Legal Advisor, Office of Patent Legal Administration, at 571-272-7757. You can also send inquiries by email to
This rulemaking pertains to the patent term adjustment regulations establishing the circumstances that will, or will not, be considered a failure of an applicant to engage in reasonable efforts to conclude prosecution (processing or examination) of an application and any resulting reduction of patent term adjustment (37 CFR 1.704).
Regulations establishing the circumstances that constitute a failure of an applicant to engage in reasonable efforts to conclude processing or examination of an application and the resulting reduction of any patent term adjustment are set forth in 37 CFR 1.704(c)(1) through (14).
Additionally, 37 CFR 1.704(d)(1) provides a safe harbor by setting forth the circumstances that will not be considered a failure to engage in reasonable efforts to conclude processing or examination of the application. Specifically, 37 CFR 1.704(d)(1) provides that a paper containing only an information disclosure statement in compliance with §§ 1.97 and 1.98 will not be considered a failure to engage in reasonable efforts to conclude prosecution (processing or examination) of the application under 37 CFR 1.704(c)(6), (8), (9), or (10) if it is accompanied by the required statement. The provision at 37 CFR 1.704(d)(1) also provides that a request for continued examination in compliance with § 1.114 with no submission other than an information disclosure statement in compliance with §§ 1.97 and 1.98 will not be considered a failure to engage in reasonable efforts to conclude prosecution (processing or examination) of the application under 37 CFR 1.704(c)(12) if it is accompanied by the required statement. The statement required to accompany the paper or request for continued examination must state that each item of information contained in the information disclosure statement (1) was first cited in any communication from a patent office in a counterpart foreign or international application or from the Office, and this communication was not received by any individual designated in § 1.56(c) more than thirty days prior to the filing of the information disclosure statement; or (2) is a communication that was issued by a patent office in a counterpart foreign or international application or by the Office, and this communication was not received by any individual designated in § 1.56(c) more than thirty days prior to the filing of the information disclosure statement.
This rulemaking proposes amending 37 CFR 1.704(d) to include new paragraph (d)(3) requiring that filers submit the patent term adjustment statement under 37 CFR 1.704(d)(1) on the Office form (PTO/SB/133) to derive benefit under 37 CFR 1.704(d). The changes proposed in this rulemaking facilitate the current patent term adjustment statement requirement through the use of an existing Office form.
Form PTO/SB/133 includes the patent term adjustment statement required by 37 CFR 1.704(d)(1). Specifically, the form includes the statement that “[e]ach item of information contained in the information disclosure statement was first cited in any communication from a patent office in a counterpart foreign or international application or from the Office, and this communication was not received by any individual designated in 37 CFR 1.56(c) more than thirty days prior to the filing of the information disclosure statement.” The form also includes the alternative statement that “[e]ach item of information contained in the information disclosure statement is a communication that was issued by a patent office in a counterpart foreign or international application or by the Office, and this communication was not received by any individual designated in 37 CFR 1.56(c) more than thirty days prior to the filing of the information disclosure statement.” The filer of the form could select one or both of these statements.
Use of form PTO/SB/133 aims to: (1) ensure the accurate capture of the presence of a patent term adjustment statement under 37 CFR 1.704(d)(1) by the USPTO's IT system, and (2) eliminate the need to manually review an applicant's patent term adjustment statement to determine whether it is proper under 37 CFR 1.704(d)(1). Furthermore, as a result of using the form, the USPTO's automated process for calculating patent term adjustment will be more likely to account for the patent term adjustment statement, thereby eliminating the need to file a request for reconsideration of patent term adjustment under 37 CFR 1.705(b). Form PTO/SB/133 is available at
Filers who submit a 37 CFR 1.704(d)(1) patent term adjustment statement without using Office form PTO/SB/133 and filers who submit Office form PTO/SB/133 with any modification to the patent term adjustment statement (that is, modifications to either or both of the statements indicated on the form) will not receive the benefit of the safe harbor under 37 CFR 1.704(d). Under such circumstances, the concurrently filed paper containing only an information disclosure statement, in compliance with §§ 1.97 and 1.98, or the concurrently filed paper containing a request for continued examination, in compliance with § 1.114, with no submission other than an information disclosure statement, in compliance with §§ 1.97 and 1.98, will be treated as not accompanied by a patent term adjustment statement under 37 CFR 1.704(d)(1).
Additionally, the USPTO's patent term adjustment algorithm is being modified to detect when a patent term adjustment statement under 37 CFR 1.704(d)(1) is filed using the Office form. The Office has created a particular document code for the filing of this patent term adjustment statement form under 37 CFR 1.704(d). Once modified, the patent term adjustment algorithm will recognize that the Office form (PTO/SB/133) has been filed concurrently with (
The Office reviewed a sampling of patent term adjustment statements that were independently submitted without the use of Office form PTO/SB/133 and found that a portion of those statements were deficient by failing to meet the required language of 37 CFR 1.704(d). Requiring the use of the form will eliminate these types of deficiencies, and use of Office form PTO/SB/133 will thus ensure legal compliance, so long as the patent term adjustment statement is not modified. Because the USPTO's patent term adjustment algorithm will now automatically determine that a reduction in patent term should not be assessed in view of a submitted form PTO/SB/133, the Office will also not need to expend resources to manually review the provided patent term adjustment statement under 37 CFR 1.704(d). The Office will rely on the presentation to the Office (whether by signing, filing, submitting, or later advocating) of this form, whether by a practitioner or non-practitioner, as a certification under 37 CFR 11.18(b) that the existing text and any certification statements on the form have not been altered.
The submission of a patent term adjustment statement under 37 CFR 1.704(d) does not require a fee. However, in certain cases, a fee is required. Specifically, the Office has provided a procedure for applicants to seek a waiver under 37 CFR 1.183 to allow for a late-filed patent term adjustment statement under 37 CFR 1.704(d). Section 1.183 provides for an applicant to petition for suspension of rules and requires the fee under 37 CFR 1.17(f). If accompanied by a petition under 37 CFR 1.183, an applicant may submit the patent term adjustment statement under 37 CFR 1.704(d) after the timely filing of the information disclosure statement. Applicants have additionally submitted such a patent term adjustment statement under 37 CFR 1.704(d) accompanied by a petition under 37 CFR 1.183 along with the filing of a request for reconsideration of the patent term adjustment indicated on the patent (37 CFR 1.705(b)) in order to receive the benefit of the safe harbor under 37 CFR 1.704(d). The Office has generally granted such 37 CFR 1.183 petitions.
Once the USPTO's patent term adjustment algorithm is modified to automatically detect when a patent term adjustment statement form under 37 CFR 1.704(d) is filed, the Office may consider eliminating the procedure of generally granting such 37 CFR 1.183 petitions. Additionally, applicants should keep in mind that a petition under 37 CFR 1.183 may only be used to request acceptance of the late-filed patent term adjustment statement under 37 CFR 1.704(d)(1). Under no circumstances may the information disclosure statement be filed more than 30 days from the applicable communication under 37 CFR 1.704(d)(1)(i) or (ii), the 30-day period being non-extendable per 37 CFR 1.704(d)(2).
The following is a discussion of the proposed amendments to 37 CFR part 1.
The proposed revision creates paragraph 37 CFR 1.704(d)(3) requiring that the “statement under paragraph (d)(1) of this section must be submitted on the Office form (PTO/SB/133) provided for such a patent term adjustment statement.”
Accordingly, prior notice and opportunity for public comment for the changes proposed by this rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law. See
This rulemaking does not propose to impose any additional fees on applicants. This rulemaking specifically proposes to revise Office rules to require the use of an Office form for statements under 37 CFR 1.704(d)(1) through the creation of paragraph 37 CFR 1.704(d)(3). This new requirement only seeks to facilitate the current statement requirement, pursuant to 37 CFR 1.704(d)(1) and set forth in the Manual of Patent Examining Procedure 2732, through the use of an existing Office form containing the required statement language.
For the foregoing reasons, the changes in this proposed rule will not have a significant economic impact on a substantial number of small entities.
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.
Administrative practice and procedure, Biologics, Courts, Freedom of information, Inventions and patents, Reporting and record keeping requirements, Small businesses.
For the reasons set forth in the preamble, USPTO proposes to amend 37 CFR part 1 as follows:
35 U.S.C. 2(b)(2), unless otherwise noted.
(d) * * *
(3) The statement under paragraph (d)(1) of this section must be submitted on the Office form (PTO/SB/133) provided for such a patent term adjustment statement. Otherwise, the paper or request for continued examination will be treated as not accompanied by a statement under paragraph (d)(1) of this section. No changes to statements on this Office form may be made. The presentation to
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
90-day petition finding; request for information
We, NMFS, announce a 90-day finding on a petition to revise the critical habitat designation for the North Pacific right whale (
We find that the petition presents substantial scientific information indicating the petitioned action may be warranted. We are hereby initiating a review of the currently designated critical habitat to determine whether revision is warranted. To ensure a comprehensive review, we are soliciting scientific and commercial information pertaining to this action.
Scientific and commercial information pertinent to the petitioned action must be received by September 12, 2022.
You may submit comments, information, or data on this document identified by docket number NOAA-NMFS-2022-0050, by one of the following methods:
•
•
Electronic copies of the petition prepared for this action are available from
Jenna Malek, NMFS Alaska Region,
On March 10, 2022, we received a petition from the Center for Biological Diversity and Save the North Pacific Right Whale requesting revision to the critical habitat designation for the North Pacific right whale. Currently, North Pacific right whale critical habitat consists of two areas of approximately 3,050 square kilometers (~1,175 square miles) and approximately 91,850 square kilometers (~35,460 square miles) in the Gulf of Alaska and the Southeast Bering Sea, respectively (73 FR 19000, April 8, 2008). The petition requests we revise this critical habitat to connect the two existing critical habitat areas by extending the Southeast Bering Sea boundary west and south to the Fox Islands, through Unimak Pass to the edge of the continental slope, and east to the Gulf of Alaska critical habitat area off the coast of Kodiak Island.
The Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531
Section 4(b)(2) of the ESA requires us to designate, and make revisions to, critical habitat for listed species based on the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary of Commerce may exclude any particular area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.
Section 4(b)(3)(D)(i) of the ESA requires, to the maximum extent practicable, that within 90 days of receipt of a petition to revise a critical habitat designation, the Secretary of Commerce make a finding on whether
The ESA implementing regulations issued jointly by NMFS and FWS (50 CFR 424.14(i)(1)(i)) state that “substantial scientific or commercial information” refers to credible scientific information that would lead a reasonable person conducting an impartial scientific review to conclude that the revision proposed in the petition may be warranted. In evaluating whether substantial scientific information is provided in a petition to revise critical habitat, the Secretary must consider whether the petition contains: (1) a description and map(s) of the areas that the current designation does not include that should be included, or includes that should no longer be included, and a description of the benefits of designating or not designating these specific areas of critical habitat; (2) a description of physical or biological features essential for the conservation of the species and whether they may require special management considerations or protections; (3) information indicating that the specific areas petitioned to be added to critical habitat contain one or more of the physical or biological features that are essential to the conservation of the species and may require special management considerations or protection; or (4) information indicating that areas designated as critical habitat do not contain the physical and biological features essential to the conservation of the species involved or do not require special management considerations or protection (50 CFR 424.14(e)(1-4)).
At the 90-day stage, we evaluate the petitioner's request based upon the information in the petition, including its references and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us evaluate the petition. We will accept the petitioner's sources and characterizations of the information presented, if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude that it supports the petitioner's assertions. If we find that a petition presents substantial information indicating that the revision may be warranted (a “positive 90-day finding”), within 12 months after receiving the petition, we are required to determine how we intend to proceed with the requested critical habitat revision and promptly publish notice of such intention in the
Prior to the mid-2000s, right whales in the North Pacific and North Atlantic were considered the same species. Critical habitat for right whales was initially designated in 1994 for the North Atlantic population (59 FR 28793, June 3, 1994, and revised in 2006 to include habitat for the North Pacific population (71 FR 38277, July 6, 2006). Genetic analyses conducted in the early 2000s indicated that the North Atlantic and North Pacific populations were two distinct species of right whales (Rosenbaum et al. 2000, Gaines et al. 2005, Kaliszewska et al. 2005), leading to their separate listing under the ESA in 2008 (73 FR 12024, March 6, 2008). Following this listing, the two critical habitat areas originally designated in 2006 for the North Pacific population were finalized as critical habitat for North Pacific right whales (73 FR 19000, April 8, 2008). In the Gulf of Alaska, critical habitat was identified as a polygon delineated by a series of lines connecting the following coordinates in order: 57°03′ N/153°00′ W, 57°18′ N/151°30′ W, 57°00′ N/151°30′ W, 56°45′ N/153°00′ W, and returning to 57°03′ N/153°00′ W. In the Bering Sea, critical habitat was also identified by a polygon, delineated by a series of straight lines connecting the following coordinates in order: 58°00′ N/168°00′ W, 58°00′ N/163°00′ W, 56°30′ N/161°45′ W, 55°00′ N/166°00′ W, 56°00′ N/168°00′ W and returning to 58°00′ N/168°00′ W.
The designation of critical habitat for North Pacific right whales uses the term primary constituent element (PCE). The critical habitat implementing regulations in 50 CFR 424 were revised in 2016 (81 FR 7414; February 11, 2016), and as part of these revisions the term “PCE” was removed and replaced with “physical or biological features” (PBFs). The shift in terminology was intended to simplify and clarify the designation process, and did not change the approach used by NMFS in determining what areas qualify as critical habitat under the ESA. Thus, this change in terminology will not alter our review and analysis of North Pacific right whale critical habitat.
At the time of designation, there were significant gaps in the knowledge of North Pacific right whale biology and ecology; little was known about the PBFs that might be essential for their conservation. However, several species of large copepods and other zooplankton are known to constitute the primary prey of North Pacific right whales, based on examination of harvested whales and limited plankton tows conducted near feeding whales. As such, PBFs identified were the copepods
The petition lists recent sources of information on North Pacific right whale presence and habitat use in and around currently designated critical habitat in the Gulf of Alaska and the Southeast Bering Sea. The Center for Biological Diversity and Save the North Pacific Right Whale propose that the critical habitat be revised to connect the two existing critical habitat areas by extending the Bering Sea area boundary west and south to the Fox Islands, through Unimak Pass to the edge of the continental slope, and east to the Kodiak Island critical habitat area. The petitioners state that this revision encompasses “a key migratory point” and provides “connectivity between two essential foraging grounds” (Center for Biological Diversity and Save the North Pacific Right Whale, 2022, p. ii).
Oceanographic data indicate that Unimak Pass is a very biologically productive area with high concentrations of phyto- and zooplankton due to the mixing of waters from the North Pacific and Bering Canyon along the Bering Sea shelf. This productivity attracts a large diversity of fish and marine birds and mammals, including North Pacific right whales, as evidenced by acoustic and visual detections. Based on acoustic moorings
North Pacific right whales have also been visually observed in and around Unimak Pass as recently as February 2022. Commercial fisherman reported sighting at least two right whales just outside of the pass in February, providing the first visual confirmation of the species in the area during that time of year.
In the Barnabas Trough and Albatross Bank area of the Gulf of Alaska, there have been increased sightings and detections of North Pacific right whales in and around currently designated critical habitat. Though historic data indicate that individuals were harvested commercially in the Gulf, there has been limited evidence of their presence since the 1960s. Similar to Unimak Pass, there is high biological productivity near Barnabas Trough and Albatross Bank, due to the tidal mixing that results in nutrient rich waters throughout the summer months. The North Pacific right whale sightings and detections that have occurred in this area have corresponded with high densities of North Pacific right whale primary prey, the essential feature of the designated critical habitat, and fecal samples that indicate recent feeding (Wade
In 2015, Ferguson
Based on the information presented and referenced in the petition, as well as all other information readily available in our files, and pursuant to the criteria specific in 50 CFR 424.14(c) and (e), we find the recent information presented by the petitioners on the distribution and behavior of North Pacific right whales in the Gulf of Alaska and the Southeast Bering Sea to constitute substantial information indicating that revision of critical habitat may be warranted.
To ensure that our review of North Pacific right whale critical habitat is complete and based on the best available scientific and commercial information, we are soliciting relevant information from the public, governmental agencies, tribes, the scientific community, industry, environmental entities, and any other interested parties concerning: (1) The essential habitat needs and use of the whales; (2) the areas of the Gulf of Alaska and the Southeastern Bering Sea proposed in the petition for inclusion as critical habitat; (3) the physical and biological features that are essential to the conservation of North Pacific right whales and that may require species management considerations or protection; (4) information regarding potential benefits or impacts of designating any particular areas, including information on the types of Federal actions that may affect the area's physical and biological features; and (5) current or planned activities in the areas the petition requests to be added as critical habitat and costs of potential modifications of those activities due to critical habitat designation.
We request that all data and information be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address (see
The complete citations for the references used in this document can be obtained by contacting NMFS (See
Administrative Conference of the United States (ACUS).
Notice; extension of comment period.
On May 3, 2022, the Administrative Conference of the United States (ACUS) published a notice inviting public comments on issues associated with and options for designing a small claims patent court. ACUS is now extending the period for interested persons to submit comments.
ACUS is extending the comment period for the notice published May 3, 2022 (87 FR 26183). Comments must be received on or before August 26, 2022.
You may submit comments by email at
Kazia Nowacki, Attorney Advisor, Administrative Conference of the United States, 1120 20th Street NW, Suite 706 South, Washington, DC 20036; Telephone (202) 480-2080; email
On May 3, 2022, ACUS published a notice requesting public comments on issues associated with and options for designing a small claims patent court (87 FR 26183). In the notice, ACUS stated that it welcomed views, information, and data on all aspects of a potential small claims patent court or small claims patent proceedings and its impacts. ACUS also listed nine topics on which it was seeking specific feedback.
ACUS has determined that an extension of the public comment period is appropriate to allow interested persons additional time to submit comments for ACUS's consideration.
United States Agency for International Development/Nigeria Mission (USAID/Nigeria).
Notice of information collection; request for comment.
The U.S. Agency for International Development/Nigeria Mission (USAID/Nigeria), as part of the Agency's continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the following new information collection, as required by the Paperwork Reduction Act of 1995. Comments are requested concerning: Whether the proposed or continuing collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimates; ways to enhance the quality, utility, and clarity of the information collected; and ways to minimize the burden of the collection of the information on the respondents.
All comments should be submitted within 60 calendar days from the date of this publication.
To access and review the electronic Google forms survey tool, please, use:
For specific questions related to collection activities, please contact Tessie Kuhe, Gender and Inclusive Development Advisor, USAID/Nigeria Program Office at
Foreign Agricultural Service, USDA.
Notice of a new system of records.
The U.S. Department of Agriculture, Foreign Agricultural Service, proposes a new system of records USDA/FAS-10, Foreign Agricultural Service International Fellowship and Exchanges Database System (FAS-IFEDS). This system is being developed for Global Programs to store crucial fellowship information and to document the relationship of a fellow with USDA. In accordance with the Privacy Act of 1974, and Office of Management and Budget (OMB) Circular No. A-108, the U.S. Department of Agriculture, Foreign Agricultural Service, proposes a new system of records entitled “Department of Agriculture, Foreign Agricultural Service, International Fellowship and Exchanges Database System”. This system is maintained by Global Programs and centralizes data from all constituent groups across all fellowships, in a single system.
In accordance with 5 U.S.C. 552a(e)(4) and (11), this notice is effective upon publication, subject to a 30-day notice and comment period in which to comment on the routine uses described in the routine uses section of this system of records notice. Please submit your comments by August 11, 2022.
You may submit comments by either of the following methods:
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•
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Christopher Wood, Assistant Chief Information Officer, FAS, USDA,
The Privacy Act of 1974, (5 U.S.C. 552a), requires the Department to publish in the
The Foreign Agricultural Service International Fellowship and Exchanges Database System (FAS-IFEDS) is primarily a personal database and is used to collect information concerning fellows and alumni that includes the personally-identifiable information (PII) related to fellows and alumni, in addition to the information pertaining to the institution, implementer, and fellowship. The FAS-IFEDS system collects the following information (that may be considered
FAS will share information from the system in accordance with the requirements of the Privacy Act. A full list of routine uses is included in the routine uses section of the document published with this notice.
A report on the new system of records, required by 5 U.S.C. 552a(r), as implemented by Office of Management and Budget Circular A-108, was sent to the Chairman, Committee on Homeland Security and Government Affairs, United States Senate; the Chairwoman, Committee on Oversight and Reform, House of Representatives; and the Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget.
In accordance with 5 U.S.C. 552a(r), USDA has provided a report of this system of records to the Office of Management and Budget and to Congress.
Unclassified.
The system owner is USDA/FAS, 1400 Independence Avenue SW, Mail Stop 1063, Washington, DC 20250-0002. The electronic record system is maintained on servers that are physically hosted in the Salesforce Government Cloud. Salesforce is located at The Landmark @On Market Street, Suite 300, San Francisco, California 94105. The physical location and technical operation of the system is at the Salesforce Government Cloud's Chicago (Elk Grove, IL) and Washington (Ashburn, VA) data centers. The HubSpot application uses cloud storage and computes services from Amazon Web Services (AWS) and Google Cloud Platform (GCP). HubSpot's production infrastructure is centralized in AWS and GCP cloud hosting facilities and is managed by the HubSpot engineering team.
Information Technology Project Manager, FAS, USDA, 1400 Independence Avenue SW, Mail Stop 1063, Washington DC 20250-0002, 202-843-3857.
7 U.S.C. 2.601
The USDA Foreign Agricultural Service International Fellowship and Exchange Database System (IFEDS) is a database used by the FAS' Fellowship Programs Division to record relevant data pertaining to individuals and organizations that have taken part in the various programs and exchanges the division coordinates. As a system of record, IFEDS will better enable Fellowship Programs staff by enabling accurate and efficient data input as well as timely data retrieval. Records contained withing IFEDS will be used to satisfy statistical inquiries, communicate with Fellows and alumni, and associate multiple relevant datapoints with each other. IFEDS will not be accessible to the public, the data will be shared on a need-to-know basis with partners in other agencies, universities, or other affiliated organizations.
Categories of individuals covered by this system include, individuals who are referenced or identified in records created or compiled as part of the process of documenting the USDA Fellowship Programs including, but not limited to, fellows, fellowships, institutions, implementors, or alumni. All individuals, even if they are not users of the FAS-IFEDS, who are mentioned or referenced in any documents entered into FAS-IFEDS by a user are also covered. This group may include, but is not limited to, vendors, agents, and other business personnel.
Categories of records in the system are created or compiled as part of the process of documenting the USDA Fellowship Program. Such records include: first name, middle name, last name, gender, salutation, birth date, birth city, citizenship country, country of residence, work phone, permanent home address, work address, personal email, work email, emergency contract information (US implementer), and emergency contact information (family contact: name, relationship, home phone, cell phone, and email). This information is collected from the applicant process that occurs prior to acceptance into the fellowship program. Information is updated with fellows and alumni, after the application process to reflect current information.
Information in this system of records is obtained from, but not limited to, fellows, fellowships, institutions, implementors, or alumni as well as other individuals or groups. This group may include, but is not limited to, vendors, agents, and other business personnel.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, records contained in this system may be disclosed outside of USDA as a routine use pursuant to 5 U.S.C. 552a(b)(3), to the extent that such uses are compatible with the purposes for which the information was collected. Such permitted routine uses include the following:
a. To the Department of Justice when: (a) USDA or any component thereof; or (b) any employee of USDA in his or her official capacity, or any employee of the agency in his or her official capacity where the Department of Justice has agreed to represent the employee; or (c) the United States Government, is a party to litigation or has an interest in such litigation, and USDA determines that the records are both relevant and necessary to the litigation and the use of such records by the Department of Justice is deemed by USDA to be for a purpose that is compatible with the purpose for which USDA collected the records.
b. To a congressional office in response to an inquiry from that congressional office made at the written request of the individual about whom the records pertains.
c. Disclosure may be made to the United States Civil Rights Commission in response to its request for information, per 42 U.S.C. 1975a.
d. To the National Archives and Records Administration (NARA) or other Federal government agencies pursuant to records management activities being conducted under 44 U.S.C. 2904 and 2906.
e. To appropriate agencies, entities, and persons when (1) USDA suspects or has confirmed that there has been a breach of the system of records; (2) USDA has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, USDA (including its information system, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with USDA's efforts to respond to the suspected or confirmed compromise and to prevent, minimize, or remedy such harm.
f. To another Federal agency or Federal entity, when information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
g. When a record on its face, or in conjunction with other records, indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto, USDA may disclose the record to the appropriate agency, whether Federal, foreign, State, local, tribal, or other public authority responsible for enforcing, investigating, or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation, or order issued pursuant thereto, if the information disclosed is relevant to any enforcement, regulatory, investigative, or prosecutive responsibility of the receiving entity.
h. In an appropriate proceeding before a court, grand jury, or administrative or adjudicative body or official, when the USDA or other agency representing the USDA determines that the records are both relevant and necessary to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
i. To contractors and their agents, grantees, experts, consultants, and other performing or working on a contract, service, grant, cooperative agreement, or other assignment for the USDA, when necessary to accomplish an agency function related to this system of records.
j. To the news media and the public, with the approval of the Chief Privacy Officer, the Office of Communications and in consultation with counsel, unless it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
FAS is responsible for maintaining the storage of FAS-IFEDS records. Electronic records are stored within Salesforce Government Cloud, who maintains the physical aspects of the
Access to and use of FAS-IFEDS records are limited to individuals with appropriate clearance or permission who need to know for the performance of official duties. Users complete security awareness training, covering procedures for handling sensitive information, including personally identifiable information (PII). Annual refresher training is mandatory. All USDA employees and contractors with authorized access undergo thorough background security investigation. FAS-IFEDS does not interface or connect directly with Salesforce Government Cloud for personnel data. USDA personnel with user or administrative role access may enter data into FAS-IFEDS, on a periodic basis. USDA personnel with user or administrative role access may search and retrieve records by (1) date of birth, (2) country, (3) region, (4) institution, (5) subject matter expertise, (6) gender, (7) fellowship, (8) program, (9) fellowship start date, (10) fellowship end date, or (11) agricultural topic. An individual record search can occur by name using the global search. Users are limited to conducting searches electronically from within the FAS-IFEDS application. Search results are displayed through the graphical user interface (GUI) and in the form of reports. Salesforce Government Cloud is the retrieval location of electronic records.
FAS-IFEDS access and authentication meets USDA policies and practices for the retrievability of records including the use of identification cards, network access, and electronic authentication methods. FAS-IFEDS user access is role, responsibility, and privilege based; centralized on a need to know. Documented in a user guide are the policies and procedures of user access. User access is managed by the FAS-IFEDS administrator.
Records are retained and disposed of in accordance with National Archives and Records Administration (NARA) General Record Schedule (GRS) 2.3.
The administrative, technical, and physical safeguards implemented for FCRMS meet the policy and control requirements set forth in system security plan documentation and subject to monitoring consistent with applicable laws, regulations, agency policies, procedures, and practices. Access to and use of FAS-IFEDS records are limited to individuals with appropriate clearances or permissions who need to know the information for performance of official duties. Users complete security awareness training, covering procedures for handling sensitive information, including personally identifiable information (PII). Annual refresher training is mandatory. All USDA employees and contractors with authorized access undergo thorough background security investigation. Personnel retain paper records, when applicable, in a locked or secured office or office building that can only be accessed by authorized FAS employees. Electronic records are stored within Salesforce, who maintains the system. FAS requires users to take specific measures to safeguard authenticators. Manages authenticators by requiring individuals to take and have devices implement authentication protection measures. All user roles safeguard authenticators by not divulging or posting PIN data and protecting authentication devices. Device authenticators use safeguarding by restricting access to devices based on the principle of least privilege and separation of duties. Use of control enhancement prevents non-privileged users from executing privileged functions to include disabling, circumventing, or altering implemented security safeguards and countermeasures. Implements a contingency plan that maintains full restoration without deterioration of the security safeguards originally planned and implemented. Use of an alternate storage provides security safeguards equivalent to the primary site. Enforcing physical access authorizations at entry and exit points to the facility where the system resides by verifying individual access; controlling ingress and egress; maintaining physical access audit logs; controlling areas designated as publicly accessible; escorting visitors and monitoring visitor activity; securing keys, combinations, and other physical access devices; conducting inventories, at least annually; and changing combinations and keys, at least annually and, or when keys are lost, combinations are compromised, or individuals are transferred or terminated.
Individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Foreign Agricultural Service FOIA/Privacy Act Officer, whose contact information can be found at
The request should include a daytime phone number and email. Provide as much information as possible about the subject matter of the records you are requesting. This will help facilitate the search process.
When seeking records about yourself from this FAS-IFEDS system of records, or any other Department system of records, your request must conform with the Privacy Act regulations set forth in 7 CFR 1.112 (Procedures for requests pertaining to individual records in a record system.) You must submit a written request in accordance with the instructions set forth in the system of records.
Provide your full name, date, name of system of records, and either: (1) have your signature witnessed by a notary; or (2) include the following statement immediately above the signature on your request letter: “I declare under penalty of perjury that the foregoing is true and correct. Executed on [date].” Requests that do not contain the required declaration will be processed under the Freedom of Information Act (FOIA) and, if records are found, you may not receive as much information, including information about you. If additional information is required to fulfill a Privacy Act request, you will be notified. If you want records about yourself to be released to a third party (such as an academic institution, foreign government entity, or other organization requesting records on your behalf), the third party may receive greater access if they have permission from you. You will need a signed and dated statement that the Foreign Agricultural Service may release records pertaining to you. Include your name; date of birth; name of the person or organization to whom you want your records disclosed (where applicable); their contact information; list of records that may be released (all, emails, contact records, etc.). The person about whom the records will be released should include a statement indicating that they understand that knowingly or willingly seeking records about another person under false pretenses and or without their consent is punishable by a fine of up to $5,000.
When the request if for one of access, the request should include the full name of the individual making the request, the name of the system of records, a statement of whether the requester desires to make a personal inspection of the records or to be supplied with copies by mail or email. In accordance with 7 CFR 1.113, prior to inspection of the records, the requester shall present sufficient identification (
Individuals seeking to contest or amend records maintained in this system of records must direct their request to the address indicated in the “RECORD ACCESS PROCEDURES” paragraph, above and must follow the procedures set forth in 7 CFR part 1, subpart G, 1.116 (Request for correction or amendment to record). All request must state clearly and concisely what records is being contested, the reasons for contesting it, and the proposed amendment to the record. A determination whether a record may be amended will be made within 10 days of its receipt.
Individuals may be notified if a record in this system of records pertains to them when the individuals request information utilizing the same procedures as those identified in the “RECORD ACCESS PROCEDURES” paragraph, above.
None
Forest Service, Agriculture (USDA).
Notice.
The Forest Service, U.S. Department of Agriculture, provides direction to employees through issuances in its Directive System, comprised of the Forest Service Manual and Forest Service Handbooks. The Agency must provide public notice of and opportunity to comment on any directives that formulate standards, criteria, and guidelines applicable to Forest Service programs. Once per quarter, the Agency provides advance notice of proposed and interim directives that will be made available for public comment during the next three months, proposed and interim directives that were previously published for public comment but not yet finalized and issued during the last three months, and notice of final directives issued in the last three months.
This notice identifies proposed and interim directives that will be published for public comment between July 1, 2022, and September 30, 2022; proposed and interim directives that were previously published for public comment but not yet finalized and issued; and final directives that have been issued since April 1, 2022.
Questions or comments may be provided by email to
Jay Lowe at 703-231-8079 or
Individuals who use telecommunications devices for the deaf or hard of hearing (TDD) may call the Federal Relay Service (FRS) at 800-877-8339 24 hours a day, every day of the year, including holidays.
You may register to receive email alerts at
Consistent with 16 U.S.C. 1612(a) and 36 CFR part 216, Public Notice and Comment for Standards, Criteria and Guidance Applicable to Forest Service Programs, the Forest Service publishes for public comment Agency directives that formulate standards, criteria, and guidelines applicable to Forest Service programs. Agency procedures for providing public notice and opportunity to comment are specified in Forest Service Handbook (FSH) 1109.12, Chapter 30, Providing Public Notice and Opportunity to Comment on Directives.
The following proposed directives are planned for publication for public comment from July 1, 2022, to September 30, 2022:
1. FSH 2409.12, Timber Cruising Handbook, Chapters 30, Cruising Systems; 40, Cruise Planning, Data Recording, and Cruise Reporting; 60, Quality Control; and 70, Designating Timber for Cutting.
2. FSH 2409.15, Timber Sale Administration Handbook, Chapters 20, Measuring and Accounting for Included Timber; 40, Rates and Payments; and 60, Operations and Other Provisions.
The primary method of public outreach for these proposed directives is publication on the Forest Service website at
The following proposed and interim directives have been published for public comment but have not yet been finalized:
1. Forest Service Manual (FSM) 2200, Rangeland Management, Chapters Zero Code; 2210, Rangeland Management Planning; 2220, Management of Rangelands (Reserved); 2230, Grazing Permit System; 2240, Rangeland Improvements; 2250, Rangeland Management Cooperation; and 2270, Information Management and Reports; FSH 2209.13, Grazing Permit Administration Handbook, Chapters 10, Term Grazing Permits; 20, Grazing Agreements; 30, Temporary Grazing and Livestock Use Permits; 40, Livestock Use Permits; 50, Tribal Treaty Authorizations and Special Use Permits; 60, Records; 70, Compensation for Permittee Interests in Rangeland Improvements; 80, Grazing Fees; and 90, Rangeland Management Decision Making; and Forest Service Handbook 2209.16, Allotment Management Handbook, Chapter 10, Allotment Management and Administration.
2. FSM 3800, Landscape Scale Restoration Program.
1. FSM 2710, Special Use Authorizations, and FSH 2709.11, Special Uses Handbook, Chapter 50, Standard Forms and Supplemental Clauses. The Forest Service published final directives related to the storage and use of explosives authorized by special use authorizations. Some special use permit holders use various types of explosives and sometimes military munitions for avalanche mitigation, tree and rock removal, road construction, maintenance, and other construction projects. Holders of ski area permits and state transportation authorities maintain additional magazines for these purposes.
The final directives clarify the role and jurisdiction of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Department of the Army, states, and the Forest Service over explosives use and storage when authorized on National Forest System lands, including explosives magazine security. These directives provide that special use authorization holders that are authorized to store and use explosives must comply with all ATF regulations, state and Army requirements, if applicable, and Forest Service requirements. The directives make compliance with the special use authorization contingent upon continued compliance with these requirements. The directives provide for training of permit administrators to ensure that they can effectively monitor the requirements of a holder's operating plan, including required magazine security provisions. The 60-day comment period for this directive began June 23, 2020, and closed August 22, 2020. Five public comments were received on the proposed directives, which can be viewed at
2. FSM 7700, Travel Management, Chapters Zero and 10, Travel Planning. The Forest Service has issued final directives that clarify how electric bicycles (e-bikes) are managed on National Forest System lands. The directives add a definition of e-bikes as a class of motor vehicle, including separate definitions for Class 1, 2 and 3 e-bikes; establish criteria for consideration in designating National Forest System roads, National Forest System trails, and areas on National Forest System lands for e-bike use that are not currently designated for motor vehicle use; update the definition of “bicycle,” and align Forest Service directives with regulations promulgated by the U.S. Department of the Interior bureaus by adding e-bike definitions and requiring site-specific decision-making and environmental analysis. The 30-day comment period for these directives began September 24, 2020, and closed October 26, 2020. Over 9,140 public comments were received on the proposed directives, which can be viewed at
Rural Utilities Service, USDA.
Notice; request for comments.
In accordance with the Paperwork Reduction Act of 1995 the United States Department of Agriculture (USDA), Rural Utilities Service, (RUS), announces its intention to request an extension of a currently approved information collection and invites comments on this information collection.
Comments on this notice must be received by September 12, 2022 to be assured of consideration.
Comments may be submitted by the Federal eRulemaking Portal: Go to
MaryPat Daskal, Chief, Branch 1, Rural Development Innovation Center—Regulations Management Division, United States Department of Agriculture, 1400 Independence Avenue SW, South Building, Washington, DC 20250-1522. Telephone: (202) 720-7853. Email
The Office of Management and Budget's (OMB) regulation (5 CFR part 1320)
The loans and loan guarantees finance the construction of electric distribution, transmission, and generation facilities, including system improvements and replacement required to furnish and improve electric service in rural areas, as well as demand side management, energy efficiency and conservation programs, and on-grid and off-grid renewable energy systems. Loans are made to cooperatives as well as to corporations, states, territories and subdivisions and agencies such as municipalities, people's utility districts, and nonprofit, limited dividend or mutual associations that provide retail electric service needs to rural areas or supply the power needs of distribution borrowers in rural areas.
(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility.
(b) the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used.
(c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
Copies of this information collection can be obtained from Arlette Mussington, Rural Development Innovation Center—Regulations Management Division, at (202) 720-2825. Email:
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
July 29, 2022, 1 p.m. EDT (2 hours).
Public Meeting Hosted via Zoom. Access information is provided below:
Open to the public.
The Chemical Safety and Hazard Investigation Board (CSB) will convene a public meeting on Friday, July 29, 2022, at 1 p.m. EDT. This meeting serves to fulfill its quarterly July public meeting requirement. The Board will review the CSB's progress in meeting its mission and highlight current investigations and safety recommendations.
Hillary Cohen, Communications Manager, at
The CSB is an independent federal agency charged with investigating incidents and hazards that result, or may result, in the catastrophic release of extremely hazardous substances. The agency's Board Members are appointed by the President and confirmed by the Senate. CSB investigations look into all aspects of chemical accidents and hazards, including physical causes such as equipment failure as well as inadequacies in regulations, industry standards, and safety management systems.
The meeting is free and open to the public. This meeting will only be available via ZOOM. Close captions (CC) will be provided. There will be an opportunity for public comment at the end of the meeting. To submit public comments for the record please email us at
U.S. Commission on Civil Rights.
Announcement of virtual business meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the North Carolina Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a virtual business meeting via Webex at 12:00 p.m. ET on Tuesday, July 19, 2022, to discuss their report on Legal Financial Obligations in the state.
The meeting will take place on Tuesday, July 19, 2022, from 12:00 p.m.-1:30 p.m. ET.
Victoria Moreno, DFO, at
Committee meetings are available to the public through the conference link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Individuals who are deaf, deafblind, and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at (800) 877-8339 and providing the Service with the conference details found through registering at the web link above. To request additional accommodations, please email
Members of the public are also entitled to submit written comments; the comments must be received within 30 days following the meeting. Written comments may be emailed to Liliana Schiller at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit, as they become available, both before and after the meeting. Records of the meeting will be available via
U.S. Commission on Civil Rights.
Announcement of virtual business meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the North Carolina Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a virtual business meeting via Webex at 12:00 p.m. ET on Tuesday, August 30, 2022, to discuss their report on Legal Financial Obligations in the state.
The meeting will take place on Tuesday, August 30, 2022, from 12:00 p.m.-1:30 p.m. ET.
Victoria Moreno, DFO, at
Committee meetings are available to the public through the conference link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Individuals who are deaf, deafblind, and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at (800) 877-8339 and providing the Service with the conference details found through registering at the web link above. To request additional accommodations, please email
Members of the public are also entitled to submit written comments; the comments must be received within 30 days following the meeting. Written comments may be emailed to Liliana Schiller at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit, as they become available, both before and after the meeting. Records of the meeting will be available via
Commission on Civil Rights.
Notice; revision of virtual meeting platform and additional meeting information.
The Commission on Civil Rights is holding a meeting of the Tennessee Advisory Committee on Wednesday, August 24, 2022, at 12:00 p.m. (CT). This notice revises the meeting date and virtual meeting information. The notice is in the
Victoria Moreno, (434) 515-0204,
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that the Connecticut Advisory Committee to the U.S. Commission on Civil Rights will hold a fourth briefing via web conference or phone call on Friday, July 22, 2022, at 1:00 p.m. (ET). The purpose of the meeting is to review, edit, and vote of the report on zoning practices in Connecticut.
July 22, 2022, Friday, at 1:00 p.m. (ET):
Barbara Delaviez at
This meeting is available to the public through the WebEx link and/or phone number/access code above. If joining only via phone, callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Individuals who are deaf, deafblind and hard of hearing. may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the call-in number found through registering at the web links provided for these meeting.
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be emailed to Barbara de La Viez at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that countervailable subsidies are being provided to producers and exporters of stainless steel flanges from India during the period of review, January 1, 2020, through December 31, 2020. Interested parties are invited to comment on these preliminary results.
Applicable July 12, 2022.
Eliza Siordia, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3878.
On November 29, 2021, Commerce published a notice of initiation of an administrative review of the countervailing duty order on stainless steel flanges from India.
For a complete description of the events that followed the initiation of this review,
The merchandise covered by the
Commerce is conducting this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we preliminarily find that there is a subsidy,
The Act and Commerce's regulations do not directly address the subsidy rate
Accordingly, to determine the rate for companies not selected for individual examination, Commerce's practice is to weight average the net subsidy rates for the selected mandatory respondents, excluding rates that are zero,
For the period January 1, 2020, through December 31, 2020, we preliminarily find that the following net subsidy rates exist:
Consistent with section 751(a)(2)(C) of the Act, upon issuance of the final results, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries in accordance with the final results of this review. If the assessment rate calculated in the final results is zero or
Pursuant to section 751(a)(2)(C) of the Act, Commerce intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts indicated above, except, where the rate calculated in the final results is
We will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results.
Interested parties who wish to request a hearing must do so within 30 days of publication of these preliminary results by submitting a written request to the Assistant Secretary for Enforcement and Compliance using Enforcement and Compliance's ACCESS system.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, Commerce intends to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after publication of these preliminary results.
This administrative review and notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213.
International Trade Administration, Department of Commerce.
The United States Department of Commerce, International Trade Administration (ITA), is announcing one upcoming trade mission that will be recruited, organized, and implemented by ITA. This mission is:
A summary of the mission is found below. Application information and more detailed mission information, including the commercial setting and sector information, can be found at the trade mission website:
For each mission, recruitment will be conducted in an open and public manner, including publication in the
Jeffrey Odum, Events Management Task Force, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482-6397 or email
Applicants must submit a completed and signed mission application and supplemental application materials, including adequate information on their products and/or services, primary market objectives, and goals for participation to allow the Department of Commerce to evaluate their application. If the Department of Commerce receives an incomplete application, the Department may either: reject the application, request additional information/clarification, or take the lack of information into account when evaluating the application. If the requisite minimum number of participants is not selected for the mission by the recruitment deadline, the mission may be cancelled.
Each applicant must also certify that the products and services it seeks to export through the mission are either produced in the United States, or, if not, are marketed under the name of a U.S. firm and have at least 51% U.S. content by value. In the case of an organization, the applicant must certify that, for each entity to be represented by the organization, the products and/or services the represented firm or service provider seeks to export are either produced in the United States or, if not, marketed under the name of a U.S. firm and have at least 51% U.S. content.
An organization applicant must certify to the above for all of the companies it seeks to represent on the mission.
In addition, each applicant must:
• Certify that the export of products and services that it wishes to market through the mission is in compliance with U.S. export controls and regulations;
• Certify that it has identified any matter pending before any bureau or office in the Department of Commerce;
• Certify that it has identified any pending litigation (including any administrative proceedings) to which it is a party that involves the Department of Commerce; and
• Sign and submit an agreement that it and its affiliates (1) have not and will not engage in the bribery of foreign officials in connection with a company's/participant's involvement in this mission, and (2) maintain and enforce a policy that prohibits the bribery of foreign officials.
In the case of a trade association/organization, the applicant must certify that each firm or service provider to be represented by the association/organization can make the above certifications.
Targeted mission participants are U.S. firms, services providers and organizations providing or promoting U.S. products and services that have an interest in entering or expanding their business in the mission's destination country. The following criteria will be evaluated in selecting participants:
• Suitability of the applicant's (or in the case of an organization, represented firm's or service provider's) products or services to these markets;
• The applicant's (or in the case of an organization, represented firm's or service provider's) potential for business
• Consistency of the applicant's (or in the case of an organization, represented firm's or service provider's) goals and objectives with the stated scope of the mission.
Balance of applicants' size and location may also be considered during the review process.
Referrals from a political party or partisan political group or any information, including on the application, containing references to political contributions or other partisan political activities will be excluded from the application and will not be considered during the selection process. The sender will be notified of these exclusions.
If and when an applicant is selected to participate on a particular mission, a payment to the Department of Commerce in the amount of the designated participation fee below is required. Upon notification of acceptance to participate, those selected have 5 business days to submit payment or the acceptance may be revoked.
Participants selected for a trade mission will be expected to pay for the cost of personal expenses, including, but not limited to, international travel, lodging, meals, transportation, communication, and incidentals, unless otherwise noted. Participants will, however, be able to take advantage of U.S. Government rates for hotel rooms. In the event that a mission is cancelled, no personal expenses paid in anticipation of a mission will be reimbursed. However, participation fees for a cancelled mission will be reimbursed to the extent they have not already been expended in anticipation of the mission.
If a visa is required to travel on a particular mission, applying for and obtaining such a visa will be the responsibility of the mission participant. Government fees and processing expenses to obtain such a visa are not included in the participation fee. However, the Department of Commerce will provide instructions to each participant on the procedures required to obtain business visas.
Trade Mission members participate in trade missions and undertake mission-related travel at their own risk. The nature of the security situation in a given foreign market at a given time cannot be guaranteed. The U.S. Government does not make any representations or guarantees as to the safety or security of participants. The U.S. Department of State issues U.S. Government international travel alerts and warnings for U.S. citizens available at
For purposes of assessing participation fees, an applicant is a small or medium-sized enterprise (SME) if it qualifies as a “small business” under the Small Business Administration's (SBA) size standards (
Travel and in-person activities are contingent upon the safety and health conditions in the United States and the mission countries. Should safety or health conditions not be appropriate for travel and/or in-person activities, the Department will consider postponing the event or offering a virtual program in lieu of an in-person agenda. In the event of a postponement, the Department will notify the public and applicants previously selected to participate in this mission will need to confirm their availability but need not reapply. Should the decision be made to organize a virtual program, the Department will adjust fees, accordingly, prepare an agenda for virtual activities, and notify the previous selected applicants with the option to opt-in to the new virtual program.
The United States Department of Commerce, International Trade Administration (ITA) is organizing an Indo Defense—Aerospace and Defense Trade Mission (IDADTM) to Indonesia from October 31-November 4, 2022. This trade mission will be done in conjunction with Indo Defense Expo & Forum, which runs from November 2-5.
The IDADTM will include representatives from a variety of U.S. aerospace and defense industry manufacturers and service providers. This mission will involve combined activities connected to the Indo Defense Expo and Forum as well as tailored programs for U.S. companies seeking to identify and vet Indonesian partners. U.S. Original Equipment Manufacturers and defense service providers will have a major presence at the show which will be bolstered by participation in this trade mission.
Delegates will benefit from the guidance and insights of ITA's commercial teams working in these markets. The mission will introduce U.S. firms to aerospace and defense stakeholders in the region and assist U.S. companies in finding foreign business partners to export their products and services to Indonesia.
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All parties interested in participating in the trade mission must complete and submit an application package for consideration by the U.S. Department of Commerce. All applicants will be evaluated on their ability to meet certain conditions and best satisfy the selection criteria as outlined below. A minimum of 10 and a maximum of 15 firms and/or trade associations/organizations will be selected to participate in the mission from the applicant pool.
After a firm or trade association/organization has been selected to participate on the mission, a payment to the Department of Commerce in the form of a participation fee is required. The participation fee for the Indo Defense—Aerospace and Defense Trade Mission will be $3,100 for small or medium-sized enterprises (SMEs)
Mission recruitment will be conducted in an open and public manner, including publication in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that chlorinated isocyanurates (chlorinated isos) from the People's Republic of China (China) were sold in the United States at less than normal value during the period of review (POR) June 1, 2020, through May 31, 2021. Interested parties are invited to comment on these preliminary results.
Applicable July 12, 2022.
Sean Carey, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3964.
On August 3, 2021, Commerce initiated the administrative review of the antidumping duty (AD) order on chlorinated isos from China covering the period June 1, 2020, through May 31, 2021.
For details regarding the events that occurred subsequent to the initiation of this review,
The products covered by the order are chlorinated isos, which are derivatives of cyanuric acid, described as chlorinated s-triazine triones.
Commerce is conducting this administrative review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). Export prices have been calculated in accordance with section 772 of the Act. Because China is a non-market economy within the meaning of section 771(18) of the Act, normal value has been calculated in accordance with section 773(c) of the Act. For a full description of the methodology underlying our conclusions,
Commerce preliminarily determines that Heze Huayi and Kangtai have established their eligibility for a separate rate and that the following weighted-average dumping margins exist for the period June 1, 2020, through May 31, 2021:
Upon issuance of the final results of the administrative review, Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
For each individually examined respondent in this review whose weighted-average dumping margin in the final results of review is not zero or
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) for the exporters listed above that have a separate rate, the cash deposit rate will be equal to the weighted-average dumping margin established in the final results of this review (except, if the rate is zero or
Commerce intends to disclose the calculations for these preliminary results within five days of the date of publication of this notice, in accordance with 19 CFR 351.224(b). Interested parties may submit case briefs within 30 days after the date of publication of these preliminary results of review.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically-filed document must be received successfully in its entirety by Commerce's electronic records system, ACCESS, by 5:00 p.m. Eastern Time within 30 days after the date of publication of this notice. Requests should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised in the respective case and rebuttal briefs.
Commerce intends to issue the final results of this administrative review, which will include the results of our analysis of all issues raised in the case briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(1), unless otherwise extended.
This notice also serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213 and 19 CFR 351.221(b)(4).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of issuance of Letter of Authorization.
In accordance with the Marine Mammal Protection Act (MMPA), as amended, its implementing regulations, and NMFS' MMPA Regulations for Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, notification is hereby given that a Letter of Authorization (LOA) has been issued to QuarterNorth Energy LLC (QuarterNorth) for the take of marine mammals incidental to geophysical survey activity in the Gulf of Mexico.
The LOA is effective from July 1, 2022, through December 31, 2022.
The LOA, LOA request, and supporting documentation are available online at:
Ben Laws, Office of Protected Resources, NMFS, (301) 427-8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding,
On January 19, 2021, we issued a final rule with regulations to govern the unintentional taking of marine mammals incidental to geophysical survey activities conducted by oil and gas industry operators, and those persons authorized to conduct activities on their behalf (collectively “industry operators”), in Federal waters of the U.S. Gulf of Mexico (GOM) over the course of 5 years (86 FR 5322; January 19, 2021). The rule was based on our findings that the total taking from the specified activities over the 5-year period will have a negligible impact on the affected species or stock(s) of marine mammals and will not have an unmitigable adverse impact on the availability of those species or stocks for subsistence uses. The rule became effective on April 19, 2021.
Our regulations at 50 CFR 217.180
QuarterNorth plans to conduct a single checkshot velocity survey within Green Canyon OCS Lease Block 39. See Section 1.1 of QuarterNorth's application for a map. QuarterNorth plans to use an 8-element, 1,170 cubic inch (in
Consistent with the preamble to the final rule, the survey effort proposed by QuarterNorth in its LOA request was used to develop LOA-specific take estimates based on the acoustic exposure modeling results described in the preamble (86 FR 5322, 5398; January 19, 2021). In order to generate the appropriate take number for authorization, the following information was considered: (1) survey type; (2) location (by modeling zone
No checkshot velocity surveys were included in the modeled survey types, and use of existing proxies (
In addition, all available acoustic exposure modeling results assume use of a 72-element, 8,000 in
The survey is planned to occur for a maximum of 1 day in Zone 5. The survey may occur in either season. Therefore, the take estimates for each species are based on the season that has the greater value for the species (
In this case, use of the exposure modeling produces results that are smaller than average GOM group sizes for multiple species (Maze-Foley and Mullin, 2006). NMFS' typical practice in such a situation is to increase exposure estimates to the assumed average group size for a species in order to ensure that, if the species is encountered, exposures will not exceed the authorized take number. However, other relevant considerations here lead to a determination that increasing the estimated exposures to average group sizes would likely lead to an overestimate of actual potential take. In this circumstance, the very short survey duration (six hours over the course of a day) and relatively small Level B harassment isopleths produced through use of the 8-element, 1,170 in
Based on the results of our analysis, NMFS has determined that the level of taking authorized through the LOA is consistent with the findings made for the total taking allowable under the regulations. See Table 1 in this notice and Table 9 of the rule (86 FR 5322; January 19, 2021).
Under the GOM rule, NMFS may not authorize incidental take of marine mammals in an LOA if it will exceed “small numbers.” In short, when an acceptable estimate of the individual marine mammals taken is available, if the estimated number of individual animals taken is up to, but not greater than, one-third of the best available abundance estimate, NMFS will determine that the numbers of marine mammals taken of a species or stock are small. For more information please see NMFS' discussion of the MMPA's small numbers requirement provided in the final rule (86 FR 5322, 5438; January 19, 2021).
The take numbers for authorization, which are determined as described above, are used by NMFS in making the
Based on the analysis contained herein of QuarterNorth's proposed survey activity described in its LOA application and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the affected species or stock sizes and therefore is of no more than small numbers.
NMFS has determined that the level of taking for this LOA request is consistent with the findings made for the total taking allowable under the incidental take regulations and that the amount of take authorized under the LOA is of no more than small numbers. Accordingly, we have issued an LOA to QuarterNorth authorizing the take of marine mammals incidental to its geophysical survey activity, as described above.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's Summer Flounder, Scup, and Black Sea Bass Monitoring Committee will hold a public webinar meeting.
The meeting will be held on Thursday, July 28, 2022, from 9 a.m. until 1 p.m. EDT. For agenda details, see
The meeting will be held via webinar. Connection information will be posted to the calendar prior to the meeting at
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The Summer Flounder, Scup, and Black Sea Bass Monitoring Committee will meet via webinar to review previously adopted 2023 commercial and recreational Annual Catch Limits, Annual Catch Targets, commercial quotas, and recreational harvest limits for summer flounder, scup, and black sea bass and recommend changes as appropriate. In addition, the Monitoring Committee will review commercial management measures for all three species and recommend changes if needed. During this meeting, the Monitoring Committee will consider recent fishery performance as well as recommendations from the Advisory Panel, Scientific and Statistical Committee, and Council staff. Meeting materials will be posted to
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to Shelley Spedden, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application for permit amendment.
Notice is hereby given that Heidi Pearson, Ph.D., University of Alaska—Southeast, 11120 Glacier Hwy, AND1, Juneau, Alaska 99801, has applied for an amendment to Scientific Research Permit No. 20648-01.
Written, telefaxed, or email comments must be received on or before August 11, 2022.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
Written comments on this application should be submitted via email to
Those individuals requesting a public hearing should submit a written request via email to
Courtney Smith, Ph.D., or Carrie Hubard, (301) 427-8401.
The subject amendment to Permit No. 20648 is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
Permit No. 20648, issued on June 14, 2019 (84 FR 27767), authorizes the permit holder to conduct vessel-based and unmanned aerial surveys on the following species: fin (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's Spiny Dogfish Advisory Panel will hold a public meeting. See
The meeting will be held on Thursday, July 28, 2022, from 3 p.m. until 5 p.m.
The meeting will be held via webinar. Connection information will be posted to the calendar prior to the meeting at
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The purpose of the meeting is for the Advisory Panel to create a Fishery Performance Report that includes advisor input on related specifications and management measures.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to Shelley Spedden, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification of fee percentage.
NMFS publishes notification of a 2.23 percent fee for cost recovery under the Bering Sea and Aleutian Islands Crab Rationalization Program. This action is intended to provide holders of crab allocations with the 2022/2023 crab fishing year fee percentage so they can calculate the required cost recovery fee payment, which must be submitted by July 31, 2023.
The Crab Rationalization Program Registered Crab Receiver permit holder is responsible for submitting the fee liability payment to NMFS by July 31, 2023.
Mason Smith, (907) 586-7228.
NMFS Alaska Region administers the Bering Sea and Aleutian Islands Crab Rationalization Program (Program) in the North Pacific. Fishing under the Program began on August 15, 2005. Regulations implementing the Program can be found at 50 CFR part 680.
The Program is a limited access privilege program authorized by section 313(j) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Program includes a cost recovery provision to collect fees to recover the actual costs directly related to the management, data collection, and enforcement of the Program. The Program is consistent with the cost recovery provisions included under section 304(d)(2)(A) of the Magnuson-Stevens Act. NMFS developed the cost recovery regulations to conform to statutory requirements and to reimburse the agency for the actual costs directly related to the management, data collection, and enforcement of the Program. The cost recovery provision allows collection of 133 percent of the actual management, data collection, and enforcement costs up to 3 percent of the ex-vessel value of crab harvested under the Program. The Program provides that a proportional share of fees charged be forwarded to the State of Alaska for reimbursement of its share of management and data collection costs for the Program.
A crab allocation holder generally incurs a cost recovery fee liability for every pound of crab landed. Catcher vessel and processor quota shareholders split the cost recovery fees equally with each paying half, while catcher/processor quota shareholders pay the full fee percentage for crab processed at sea. The crab allocations subject to cost recovery include Individual Fishing Quota, Crew Individual Fishing Quota, Individual Processing Quota, Community Development Quota, and the Adak community allocation. The Registered Crab Receiver (RCR) permit holder must collect the fee liability from the crab allocation holder who is landing crab. Additionally, the RCR permit holder must collect their own fee liability for all crab delivered to the RCR. The RCR permit holder is responsible for submitting this payment to NMFS on or before July 31, in the year following the crab fishing year in which landings of crab were made.
The dollar amount of the fee due is determined by multiplying the fee percentage (not to exceed 3 percent) by the ex-vessel value of crab debited from the allocation. Program details may be found in the implementing regulations at 50 CFR 680.44.
Each year, NMFS calculates and publishes in the
According to the fee percentage formula described above, the estimated percentage of costs to value for the 2021/2022 fishery was 2.23 percent. Therefore, the fee percentage will be 2.23 percent for the 2022/2023 crab fishing year. This is an increase by approximately 1.14 percentage points from the 2021/2022 crab fishing year fee percentage of 1.09 percent (86 FR 35756, July 7, 2021). Direct program costs for managing the fishery increased by approximately 9 percent from 2021/2022 to 2022/2023, while fishery value decreased by approximately 47 percent, resulting in the increased fee percentage. Similar to previous years, the largest direct program costs were incurred by the NOAA Office of Law Enforcement and the Alaska Department of Fish and Game, respectively.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a meeting that is open to the public.
The Gulf of Mexico Fishery Management Council will hold a meeting of its Individual Fishing Quota (IFQ) Focus Group. There will be a virtual option for the public to listen to the plenary sessions and provide public comments.
The meeting will convene on Tuesday, August 2, 2022, from 9 a.m. to 5 p.m., EDT and Wednesday, August 3, 2022, from 9 a.m. to 4 p.m., EDT.
The meeting will take place at the Gulf Council office. Please visit the Gulf Council website at
Dr. Ava Lasseter, Anthropologist, Gulf of Mexico Fishery Management Council;
The meeting will begin with introductions and discussion of the meeting format, followed by a review of the agenda and meeting objectives. The focus group will
The Agenda is subject to change, and the latest version along with other meeting materials will be posted on
Although other non-emergency issues not on the agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take-action to address the emergency.
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (“CFTC” or “Commission”) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (“PRA”), Federal agencies are required to publish notice in the
Comments must be submitted on or before September 12, 2022.
You may submit comments, identified by “Market Surveys,” Collection Number 3038-0017, by any of the following methods:
• The Agency's website, at
•
•
Please submit your comments using only one method. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
Adam Charnisky, Market Analyst, Division of Market Oversight, Commodity Futures Trading Commission, (312) 596-0630; email:
Under the PRA,
With respect to the collection of information, the CFTC invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology;
You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission's regulations.
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
There are no capital costs or operating and maintenance costs associated with this collection.
Consumer Product Safety Commission.
Notice.
The Commission publishes in the
Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by July 27, 2022.
Persons wishing to comment on this Settlement Agreement should send written comments to Comment 22-C0002, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone: (240) 863-8938 (mobile), (301) 504-7479 (office); email:
Caitlin O'Donnell, Trial Attorney, Division of Enforcement and Litigation, Office of Compliance and Field Operations, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408;
The text of the Agreement and Order appears below.
1. In accordance with the Consumer Product Safety Act (“CPSA”), 15 U.S.C. §§ 2051-2089, and 16 C.F.R. § 1118.20, Vornado Air, LLC (“Vornado” or “the Firm”), and the United States Consumer Product Safety Commission (“Commission”), through its staff, hereby enter into this Settlement Agreement (“Agreement”). The Agreement and the incorporated attached Order resolve staff's charges set forth below.
2. The Commission is an independent federal regulatory agency, established pursuant to, and responsible for, the enforcement of the CPSA, 15 U.S.C. §§ 2051-2089. By executing the Agreement, staff is acting on behalf of the Commission, pursuant to 16 C.F.R. § 1118.20(b). The Commission issues the Order under the provisions of the CPSA.
3. Vornado is a privately held company, organized and existing under the laws of the state of Delaware, with its principal place of business in Andover, Kansas.
4. Between 2009 and 2015, Vornado manufactured, distributed, and offered for sale approximately 350,000 VH101 Personal Vortex Heaters (“Subject Products”).
5. The Subject Products are “consumer products” that were “distribut[ed] in commerce,” as those terms are defined or used in sections 3(a)(5) and (8) of the CPSA, 15 U.S.C. § 2052(a)(5), (8). Vornado is a “manufacturer” and “distributor” of the Subject Products, as such terms are defined in sections 3(a)(7) and (11) of the CPSA, 15 U.S.C. § 2052(a)(7), (11).
6. The Subject Products contain a defect which could create a substantial product hazard and create an unreasonable risk of serious injury or death because they can overheat when in use, posing fire and burn hazards.
7. Vornado received and investigated multiple reports of overheating and fire involving the Subject Products. Despite possessing information that reasonably supported the conclusion that the Subject Products contained a defect that could create a substantial product hazard or created an unreasonable risk of serious injury or death, Vornado did not immediately report to the Commission.
8. In December 2017, Vornado received notice of a potential claim alleging that an elderly man succumbed to injuries sustained in a fire involving a Vornado space heater that was suspected to be one of the Subject Products.
9. In January 2018, Vornado filed an Initial Report with the Commission under 15 U.S.C. § 2064(b). In that report, the Firm stated that it had not yet confirmed that the heater involved in the fatal fire was a unit of the Subject Products.
10. In February 2018, Vornado filed a Full Report with the Commission under 15 U.S.C. § 2064(b) concerning the Subject Products.
11. Vornado and the Commission jointly announced a Fast Track recall of the Subject Products on April 4, 2018. The press release announcing the recall stated that the Subject Products can overheat while in use, posing fire and burn hazards, and that 15 fire incidents had been reported.
12. On August 22, 2018, after the Firm confirmed that one of the Subject Products was, in fact, involved in the fatal fire, the recall was re-announced. The press release included a description of the December 2017 fatal fire incident as well as an updated total of 19 fire incidents.
13. Despite having information reasonably supporting the conclusion that the Subject Products contained a defect or created an unreasonable risk of serious injury or death, Vornado did not notify the Commission immediately of such defect or risk, as required by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. § 2064(b)(3), (4), in violation of section 19(a)(4) of the CPSA, 15 U.S.C. § 2068(a)(4).
14. Because the information in Vornado's possession about the Subject Products constituted actual and presumed knowledge, Vornado knowingly violated section 19(a)(4) of the CPSA, 15 U.S.C. § 2068(a)(4), as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. § 2069(d).
15. Pursuant to section 20 of the CPSA, 15 U.S.C. § 2069, Vornado is subject to civil penalties for its knowing violation of section 19(a)(4) of the CPSA, 15 U.S.C. § 2068(a)(4).
16. Vornado's settlement of this matter does not constitute an admission of the staff's charges as set forth in paragraphs 4 through 15 above, and Vornado denies staff's allegations that it failed to notify the Commission in a timely matter in accordance with section 15(b) of the CPSA and that there was any “knowing” violation of the CPSA as that term is defined in 15 U.S.C. § 2069(d).
17. At all relevant times, Vornado had a product safety compliance program, which included pre-market third-party laboratory testing of the Subject Products to applicable safety standards and rigorous quality assurance measures. Vornado took reasonable measures to monitor field reports and evaluate returned units of the Subject Products.
18. Vornado notified the Commission under section 15(b) and conducted a voluntary recall of the Subject Products under the Fast Track program prior to confirming product identification or causation of the reported fire that resulted in a fatality.
19. Vornado enters into this Agreement to settle this matter without the delay and unnecessary expense of litigation. Vornado does not admit that it violated the CPSA or any other law, and Vornado's willingness to enter into this Agreement and Order does not constitute, nor is it evidence of, an admission by Vornado of liability or violation of any law.
20. Under the CPSA, the Commission has jurisdiction over the matter involving the Subject Products and over Vornado.
21. The parties enter into the Agreement for settlement purposes only. The Agreement does not constitute an admission by Vornado or a determination by the Commission that Vornado violated the CPSA's reporting requirements.
22. In settlement of staff's charges, and to avoid the cost, distraction, delay, uncertainty, and inconvenience of protracted litigation or other proceedings, Vornado shall pay a civil penalty in the amount of seven million five hundred thousand dollars ($7,500,000) within thirty (30) calendar days after receiving service of the Commission's final Order accepting the Agreement. All payments to be made under the Agreement shall constitute debts owing to the United States and shall be made by electronic wire transfer to the United States via
23. All unpaid amounts, if any, due and owing under the Agreement, shall constitute a debt due and immediately owing by Vornado to the United States, and interest shall accrue and be paid by Vornado at the federal legal rate of interest set forth at 28 U.S.C. § 1961(a) and (b) from the date of Default, until all amounts due have been paid in full (hereinafter “Default Payment Amount” and “Default Interest Balance”). Vornado shall consent to a Consent Judgment in the amount of the Default Payment Amount and Default Interest Balance, and the United States, at its sole option, may collect the entire Default Payment Amount and Default Interest Balance, or exercise any other rights granted by law or in equity, including, but not limited to, referring such matters for private collection, and Vornado agrees not to contest, and hereby waives and discharges any defenses to, any collection action undertaken by the United States, or its agents or contractors, pursuant to this paragraph. Vornado shall pay the United States all reasonable costs of collection and enforcement under this paragraph, respectively, including reasonable attorney's fees and expenses.
24. After staff receives this Agreement executed on behalf of Vornado, staff shall promptly submit the Agreement to the Commission for provisional acceptance. Promptly following provisional acceptance of the Agreement by the Commission, the Agreement shall be placed on the public record and published in the
25. This Agreement is conditioned upon, and subject to, the Commission's final acceptance, as set forth above, and it is subject to the provisions of 16 C.F.R. § 1118.20(h). Upon the later of: (i) the Commission's final acceptance of this Agreement and service of the accepted Agreement upon Vornado, and (ii) the date of issuance of the final Order, this Agreement shall be in full force and effect, and shall be binding upon the parties.
26. Effective upon the later of: (1) the Commission's final acceptance of the Agreement and service of the accepted Agreement upon Vornado, and (2) the date of issuance of the final Order, for good and valuable consideration, Vornado hereby expressly and irrevocably waives and agrees not to assert any past, present, or future rights to the following, in connection with the matter described in this Agreement:
(i) an administrative or judicial hearing;
(ii) judicial review or other challenge or contest of the Commission's actions;
(iii) a determination by the Commission of whether Vornado failed to comply with the CPSA and the underlying regulations;
(iv) a statement of findings of fact and conclusions of law; and
(v) any claims under the Equal Access to Justice Act.
27. Vornado shall maintain a compliance program and a system of internal controls and procedures designed to ensure compliance with the CPSA with respect to any consumer product imported, manufactured, distributed, or sold by Vornado, and which shall contain the following elements:
(i) written standards, policies, and procedures, including those designed to ensure that information that may relate to or impact CPSA compliance is conveyed effectively to personnel responsible for CPSA compliance, whether or not an injury has been reported;
(ii) procedures for reviewing claims and reports for safety concerns and for implementing corrective and preventive actions when compliance deficiencies or violations are identified;
(iii) procedures requiring that information required to be disclosed by Vornado to the Commission is recorded, processed, and reported in accordance with applicable law;
(iv) procedures requiring that all reporting made to the Commission is timely, truthful, complete, accurate, and in accordance with applicable law;
(v) procedures requiring that prompt disclosure is made to Vornado's senior management of any significant deficiencies or material weaknesses in the design or operation of such compliance program or internal controls that affect adversely, in any material respect, Vornado's ability to record, process, and report to the Commission in accordance with applicable law;
(vi) mechanisms to effectively communicate to all applicable Vornado employees, through training programs or other means, compliance-related company policies and procedures to prevent violations of the CPSA;
(vii) a mechanism for confidential employee reporting of compliance-related questions or concerns to either a compliance officer or to another senior manager with authority to act as necessary;
(viii) Vornado's senior management responsibility for CPSA compliance; and
(ix) retention of all CPSA compliance-related records for at least five (5) years, and availability of such records to CPSC staff upon request.
28. The Firm shall submit a report under CPSA section 16(b), sworn to under penalty of perjury:
(i) describing in detail its compliance program and internal controls and the actions the Firm has taken to comply with each subparagraph of paragraph 27;
(ii) affirming that during the reporting period the Firm has reviewed its compliance program and internal controls, including the actions referenced in subparagraph (a) of this paragraph, for effectiveness, and that it complies with each subparagraph of paragraph 27, or describing in detail any non-compliance with any such subparagraph; and
(iii) identifying any changes or modifications made during the reporting period to the Firm's compliance program or internal controls to ensure compliance with the terms of the CPSA and, in particular, the requirements of CPSA section 15 related to timely reporting.
Such reports shall be submitted annually to the Director, Office of Compliance, Division of Enforcement and Litigation, for a period of three (3) years beginning 12 months after the Commission's Final Order of Acceptance of the Agreement. The first report shall be submitted 30 days after the close of the first 12-month reporting period, and successive reports shall be due annually on the same date thereafter. Without limitation, the Firm acknowledges and agrees that failure to make such timely and accurate reports as required by this Agreement and Order may constitute a violation of section 19(a)(3) of the CPSA.
29. Notwithstanding and in addition to the above, upon request of staff, Vornado shall promptly provide to CPSC written documentation identifying any material changes or improvements to the Firm's compliance program or internal controls and the effective date of those changes or improvements. Vornado shall cooperate fully and truthfully with staff and shall make available all non-privileged information and materials, and any personnel deemed necessary by staff, to evaluate Vornado's compliance with the terms of the Agreement.
30. The parties acknowledge and agree that the Commission may publicize the terms of the Agreement and the Order.
31. Vornado represents that the Agreement:
(i) is entered into freely and voluntarily, without any degree of duress or compulsion whatsoever;
(ii) has been duly authorized; and
(iii) constitutes the valid and binding obligation of Vornado, enforceable against Vornado in accordance with its terms. The individuals signing the Agreement on behalf of Vornado represent and warrant that they are duly authorized by Vornado to execute the Agreement.
32. The signatories represent that they are authorized to execute this Agreement.
33. The Agreement is governed by the laws of the United States.
34. The Agreement and the Order shall apply to, and be binding upon, Vornado and each of its successors, transferees, and assigns; and a violation of the Agreement or Order may subject Vornado, and each of its successors, transferees, and assigns, to appropriate legal action.
35. The Agreement and the Order constitute the complete agreement between the parties on the subject matter contained therein.
36. The Agreement may be used in interpreting the Order. Understandings, agreements, representations, or interpretations apart from those contained in the Agreement and the Order may not be used to vary or contradict their terms. For purposes of construction, the Agreement shall be deemed to have been drafted by both of the parties and shall not, therefore, be construed against any party, for that reason, in any subsequent dispute.
37. The Agreement may not be waived, amended, modified, or otherwise altered, except as in accordance with the provisions of 16 CFR 1118.20(h). The Agreement may be executed in counterparts.
38. If any provision of the Agreement or the Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Agreement and the Order, such provision shall be fully severable. The balance of the Agreement and the Order shall remain in full force and effect, unless the Commission and Vornado agree in writing that severing the provision materially affects the purpose of the Agreement and the Order.
Upon consideration of the Settlement Agreement entered into between Vornado Air, LLC (“Vornado”), and the U.S. Consumer Product Safety Commission (“Commission”), and the Commission having jurisdiction over the subject matter and over Vornado, and it appearing that the Settlement Agreement and the Order are in the public interest, it is:
Provisionally accepted and provisional Order issued on the _
The Corporation for National and Community Service.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Corporation for National and Community Service (operating as AmeriCorps) is proposing to renew an information collection.
Written comments must be submitted to the individual and office listed in the
You may submit comments, identified by the title of the information collection activity, by any of the following methods:
(1) By mail sent to: AmeriCorps, Attention Sarah Foster, 250 E Street SW, Washington, DC 20525.
(2) By hand delivery or by courier to the AmeriCorps mailroom at the mail address given in paragraph (1) above, between 9:00 a.m. and 4:00 p.m. Eastern Time, Monday through Friday, except federal holidays.
(3) Electronically through
Comments submitted in response to this notice may be made available to the public through
Sarah Foster, 202-606-6755, or by email at
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install, and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information. All written comments will be available for public inspection on
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
The Department of Education (Department) is issuing a notice inviting applications for new awards for fiscal year (FY) 2022 for The Rhonda Weiss National Technical Assistance Center to Improve State Capacity to Collect, Report, Analyze, and Use Accurate IDEA Data in Accessible Formats, Assistance Listing Number 84.373Q. This notice relates to the approved information collection under OMB control number 1820-0028.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Rebecca Smith, U.S. Department of Education, 400 Maryland Avenue SW, Room 5038B, Potomac Center Plaza, Washington, DC 20202-5076. Telephone: (202) 258-9436. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
This priority is:
According to the U.S. Census Bureau's 2019 American Community Survey, 12.7 percent of the U.S. population experiences disability (more than 1 in 8 people). Approximately 2.3 percent, or over 7.4 million, U.S. citizens have a visual disability and 5.2 percent, or close to 16 million U.S. citizens, have a cognitive disability. Disability impacts people of all ages, races, ethnicities, geographies, and socioeconomic groups.
The purpose of the Rhonda Weiss National Technical Assistance Center to Improve State Capacity to Collect, Report, Analyze, and Use Accurate IDEA Data in Accessible Formats (Accessible Data Center) is to improve State capacity to accurately collect, report, analyze, and use the IDEA Part B and Part C data reported under IDEA sections 616 and 618 in accessible formats for persons with disabilities, particularly those with blindness, visual impairments, motor impairments, and intellectual disabilities.
Under the authority of IDEA sections 616 and 618, States are required to collect and analyze data on infants, toddlers, and children with disabilities and report on the data to the Department and the public. Section 504 of the Rehabilitation Act of 1973, as amended (Rehabilitation Act), requires States to publish data in a manner that provides the same access and usability to persons with and without disabilities. Currently, States struggle to report data in accessible formats that also are dynamic and usable by data consumers with limited statistical knowledge. To meet the demands of both statutes, States generally rely on static data portrayals rather than dynamic visualizations. The lack of available software to develop accessible, dynamic, and manipulatable data products creates inequitable access for persons with disabilities, particularly those with blindness, visual impairments, motor impairments, and intellectual disabilities.
The Accessible Data Center will increase the capacity of States to collect, report, analyze, and use the IDEA Part B and Part C data reported under IDEA sections 616 and 618 in accessible formats by: (1) developing an openly licensed software program that allows States to report and publish data products that are accessible, usable, and manipulatable by persons with disabilities, particularly those with blindness, visual impairments, motor impairments, and intellectual disabilities, as well as by those persons without disabilities; and (2) providing TA on accessible data reporting and publication. By developing an accessible and usable data reporting platform and supporting States as they revise their data collection tools and publish accessible data, both internal and external users will be better positioned to analyze and use the data. Hazen et al. (2017) note that both data analysis and data use by both internal and external users can be integrated into the data quality process and used as a tool for improving data quality. By increasing the capacity of States to report their data in formats that are both accessible and useable, the Accessible Data Center will aid in the improvement of data quality across the States and ensure equitable access to IDEA data for all stakeholders.
Federal agencies have increasingly used open licensing to expand the impact and reach of materials developed with Federal funds, enable innovative use of those materials, and ensure that those materials and resources are available to the public (U.S Department of State, 2017). Open licensing gives permission to the public to use materials created under the terms of the license and attribute to the creator under copyright law. Pfenninger et al. (2017) note that open licensing allows the burden of the work to be distributed more broadly, avoids unnecessary duplication, supports learning from one another to get to solutions more quickly, and allows for research to be seen and used. Additionally, open licensing helps to improve educational research opportunities and systems, given the rapid pace of technological change and ongoing advances.
Data visualizations can be difficult to access for persons with disabilities. This difficulty is not limited to persons who are blind and/or visually impaired, but also impacts those with cognitive and learning disabilities, and those with visual or motor disabilities who do not access their computers with a mouse or touchscreen. These barriers have been amplified by the growing interest in, and use of, infographics and interactive data displays and dashboards on websites and in social media. In addition to difficulty with use, persons with disabilities are often excluded as potential authors and designers of data visualizations due to the inaccessibility of the computer-based tools used to create and publish data displays. Despite legislation, including sections 504 and 508 of the Rehabilitation Act, and Title III of the Americans with Disabilities Act, potential data authors and consumers with disabilities continue to be excluded from the data sharing necessary for equal access and participation in civic conversations, education, advocacy, and employment.
To extend the benefits and opportunities of data visualization equitably and inclusively to all people, new tools must be developed that prioritize access and usability for everyone. Developers and designers should engage with people with disabilities (including developers and designers with disabilities) to identify and integrate accessibility solutions. Accessibly designed software and data visualizations will increase access for those who have traditionally been excluded and increase opportunities for all consumers and authors to interact with data in new and preferred ways. Following the principles of universal design, everyone benefits when we expand the ability of people with disabilities to use and access information, products, programs, and spaces with greater convenience and enjoyment.
In addition to equitable access and data availability, data reporters face a growing problem of how to meaningfully publish large datasets. Consumers need easy tools for conducting simple analyses, comparing variables, and searching for data-based answers to unique and changing questions. Interactive data visualizations increase confidence in data reliability and provide stakeholders with opportunities to look at data in new ways (Kirk, 2016).
Modern, web-based data visualizations include the ability to select, link, filter, and reorganize data, as well as the delivery of 3-D/multidimensional data representations that can be accessed from multiple perspectives (Cota et al., 2017). Challenges to producing interactive data visualizations include managing visual noise, fitting large amounts of data onto limited screen sizes, and satisfying the high-performance computation requirements behind dynamic visualizations (Hajirahimova & Ismayilova, 2018). Innovative data interactivity and manipulation solutions can also solve accessibility challenges. Accessibility solutions for static images (which usually involve written descriptions embedded in alt-tags in computer code) should become standard practice, while simultaneously being reimagined to accommodate responsive and animated representations of data.
Under this priority, the Department provides funding for a cooperative agreement to establish and operate the Rhonda Weiss National Technical Assistance Center to Improve State Capacity to Collect, Report, Analyze, and Use Accurate IDEA Data in Accessible Formats (Accessible Data Center).
The Accessible Data Center will provide TA to help States better meet current and future IDEA Part B and Part C data collection and reporting requirements, improve data quality, and analyze and use the data reported to provide equitable access and visualizations to persons with disabilities. The Accessible Data Center's work will comply with the privacy and confidentiality protections in the IDEA Part B and C regulations, which incorporate provisions in the Family Educational Rights and Privacy Act (FERPA) and include IDEA-specific provisions and will not provide the Department with access to child-level data. The Accessible Data Center must achieve, at a minimum, the following expected outcomes:
(a) Improved accessibility of the IDEA Part B and Part C data reported and published under IDEA sections 616 and 618;
(b) Increased capacity of States to collect, report, analyze, and use high-quality IDEA Part B and Part C data in accessible formats;
(c) Development of an open license, accessible software program, for the publication of dynamic data products (consistent with the open licensing requirement in 2 CFR 3474.20); and
(d) Development and documentation of a knowledge base related to the accessible reporting and dynamic presentation of data.
In addition, the Accessible Data Center must provide a range of targeted and general TA products and services for improving States' capacity to accurately collect, report, analyze, and use IDEA section 616 and section 618 data in accessible formats for persons with disabilities, particularly those with blindness, visual impairments, motor impairments, and intellectual disabilities. Such TA must include, at a minimum—
(a) Working with the Department to develop open-source electronic tools to
(b) Developing a plan to maintain appropriate functionality of the open-source electronic tools described in paragraph (a) as changes are made to data collections, reporting requirements, accessibility best practices, and accessibility requirements;
(c) Developing universal TA products, including a user manual and instructions, and conducting training with State staff on use of the open-source electronic tools; and
(d) Developing white papers and presentations that include tools and solutions to challenges in the collection, reporting, analysis, and use of IDEA data in accessible formats.
In addition to these programmatic requirements, to be considered for funding under this priority, applicants must meet the application and administrative requirements in this priority, which are:
(a) Demonstrate, in the narrative section of the application under “Significance of the Project,” how the proposed project will—
(1) Address State challenges in collecting, analyzing, reporting, and using the IDEA Part B and Part C data reported under IDEA sections 616 and 618 in formats that are both accessible to persons with visual impairments and/or other disabilities and also dynamic, to promote enhanced data use that will improve data quality and identify programmatic strengths and areas for improvement. To meet this requirement the applicant must—
(i) Demonstrate knowledge of IDEA data collections, including data required under IDEA sections 616 and 618;
(ii) Demonstrate knowledge of accessible reporting and dynamic visualization, and document areas for further knowledge development;
(iii) Present information about the difficulties State educational agencies (SEAs), State lead agencies (LAs), local educational agencies (LEAs), early intervention service (EIS) providers, and schools have encountered in meeting the requirements of section 504 of the Rehabilitation Act when reporting IDEA data; and
(iv) Present information about the difficulties SEAs, State LAs, LEAs, EIS providers, and schools have in developing dynamic data visualizations for public use; and
(2) Improve outcomes in collecting, analyzing, reporting, and using the IDEA Part B and Part C data in formats that are accessible to persons with visual impairments and/or other disabilities.
(b) Demonstrate, in the narrative section of the application under “Quality of project services,” how the proposed project will—
(1) Ensure equal access and treatment for members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability. To meet this requirement, the applicant must describe how it will—
(i) Identify the needs of the intended recipients and end users for TA and information; and
(ii) Ensure that products and services meet the needs of the intended TA recipients and end users;
(2) Achieve its goals, objectives, and intended outcomes. To meet this requirement, the applicant must provide—
(i) Measurable intended project outcomes; and
(ii) In Appendix A, the logic model (as defined in 34 CFR 77.1) by which the proposed project will achieve its intended outcomes that depicts, at a minimum, the goals, activities, outputs, and intended outcomes of the proposed project;
(3) Use a conceptual framework (and provide a copy in Appendix A) to develop project plans and activities, describing any underlying concepts, assumptions, expectations, beliefs, or theories, as well as the presumed relationships or linkages among these variables, and any empirical support for this framework;
(4) Be based on current research and use evidence-based practices (EBPs).
(i) The current research on the capacity of SEAs, State LAs, LEAs, and EIS providers to report and use data, specifically section 616 and section 618 data, in a manner that allows persons with vision and/or other disabilities, as well as those without, to access and dynamically manipulate data, as both a means of improving data quality and identifying strengths and areas for improvement;
(ii) How it will analyze and incorporate the views of end users regarding the accessibility of tools currently available for data collection, reporting, analysis, and use. Specifically, how it will assess the overall accessibility, data manipulability, and the accessibility of dynamic data visualizations for persons with and without disabilities; and
(iii) How the proposed project will incorporate current research, EBPs, and the needs of end users in the development and delivery of its products and services;
(5) How it will develop products and provide services that are of high quality and sufficient intensity and duration to achieve the intended outcomes of the proposed project. To address this requirement, the applicant must describe—
(i) How it proposes to identify or develop the knowledge base on the capacity needs of SEAs, State LAs, LEAs, and EIS programs/EIS providers to meet IDEA data collection and reporting requirements, data analysis, and use of the IDEA Part B and Part C data reported under IDEA sections 616 and 618 in a manner that allows individuals with vision and/or other disabilities, as well as those without, to access and dynamically manipulate data;
(ii) Its proposed approach to universal, general TA,
(iii) Its proposed approach to targeted, specialized TA,
(A) The intended recipients, including the type and number of recipients, that will receive the products and services under this approach; and
(B) Its proposed approach to measure the readiness of potential TA recipients to work with the project, assessing, at a minimum, their current infrastructure, available resources, and ability to build capacity at the local level; and
(iv) Its proposed approach to intensive, sustained TA,
(A) The intended recipients, including the type and number of recipients, that will receive the products and services under this approach;
(B) Its proposed approach to measure the readiness of SEA, State LAs, LEA, and EIS program/provider personnel to work with the project, including their commitment to the initiative, alignment of the initiative to their needs, current infrastructure, available resources, and ability to build capacity at the SEA, State LA, LEA, and EIS program/provider levels;
(C) Its proposed plan for assisting SEAs and State LAs (and LEAs, in conjunction with SEAs and EIS programs/providers, in conjunction with State LAs) to build or enhance training systems to meet IDEA Part B and Part C data collection and reporting requirements in a manner that allows individuals with vision and/or other disabilities, as well as those without, to access and dynamically manipulate data. This includes professional development based on adult learning principles and coaching;
(D) Its proposed plan for working with appropriate levels of the education system (
(E) Its proposed plan for collaborating and coordinating with Department-funded projects, including those providing data-related support to States, where appropriate, to align complementary work and jointly develop and implement products and services to meet the purposes of this priority. Such Department-funded projects include the IDEA Data Center (IDC), the Center for IDEA Early Childhood Data Systems (DaSy), the Center for IDEA Fiscal Reporting (CIFR), the Center for the Integration of IDEA Data (CIID), EdFacts, and the research and development investments of the Institute of Education Sciences/National Center for Education Statistics; and
(6) Its proposed plan to develop products and implement services that maximize efficiency. To address this requirement, the applicant must describe—
(i) How the proposed project will use technology to achieve the intended project outcomes;
(ii) With whom the proposed project will collaborate and the intended outcomes of this collaboration; and
(iii) How the proposed project will use non-project resources to achieve the intended project outcomes.
(c) In the narrative section of the application under “Quality of the project evaluation,” include an evaluation plan for the project developed in consultation with and implemented by a third-party evaluator.
(1) Articulate formative and summative evaluation questions, including important process and outcome evaluation questions. These questions should be related to the project's proposed logic model required in paragraph (b)(2)(ii) of these requirements;
(2) Describe how progress in and fidelity of implementation, as well as project outcomes, will be measured to answer the evaluation questions. Specify the measures and associated instruments or sources for data appropriate to the evaluation questions. Include information regarding reliability and validity of measures where appropriate;
(3) Describe strategies for analyzing data and how data collected as part of this plan will be used to inform and improve service delivery over the course of the project and to refine the proposed logic model and evaluation plan, including subsequent data collection;
(4) Provide a timeline for conducting the evaluation and include staff assignments for completing the plan. The timeline must indicate that the data will be available annually for the annual performance report and at the end of Year 2 for the review process; and
(5) Dedicate sufficient funds in each budget year to cover the costs of developing or refining the evaluation plan in consultation with a third-party evaluator, as well as the costs associated with the implementation of the evaluation plan by the third-party evaluator.
(d) Demonstrate, in the narrative section of the application under “Adequacy of resources,” how—
(1) The proposed project will encourage applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability, as appropriate;
(2) The proposed key project personnel, consultants, and subcontractors have the qualifications and experience to carry out the proposed activities and achieve the project's intended outcomes;
(3) The applicant and any key partners have adequate resources to carry out the proposed activities; and
(4) The proposed costs are reasonable in relation to the anticipated results and benefits, and funds will be spent in a way that increases their efficiency and cost-effectiveness, including by reducing waste or achieving better outcomes.
(e) Demonstrate, in the narrative section of the application under “Quality of the management plan,” how—
(1) The proposed management plan will ensure that the project's intended outcomes will be achieved on time and within budget. To address this requirement, the applicant must describe—
(i) Clearly defined responsibilities for key project personnel, consultants, and subcontractors, as applicable; and
(ii) Timelines and milestones for accomplishing the project tasks;
(2) Key project personnel and any consultants and subcontractors will be allocated and how these allocations are appropriate and adequate to achieve the project's intended outcomes;
(3) The proposed management plan will ensure that the products and services provided are of high quality, relevant, and useful to recipients; and
(4) The proposed project will benefit from a diversity of perspectives, including those of families, educators, TA providers, researchers, and policy makers, among others, in its development and operation.
(f) Address the following application requirements:
(1) Include, in Appendix A, personnel-loading charts and timelines, as applicable, to illustrate the management plan described in the narrative;
(2) Include, in the budget, attendance at the following:
(i) A one- and one-half day kick-off meeting in Washington, DC, or virtually, after receipt of the award, and an annual planning meeting in Washington, DC, or virtually, with the Office of Special Education Programs (OSEP) project officer and other relevant staff during each subsequent year of the project period.
(ii) A two- and one-half day project directors' conference in Washington, DC, or virtually, during each year of the project period; and
(iii) Three annual two-day trips, or virtually, to attend Department briefings, Department-sponsored conferences, and other meetings, as requested by OSEP;
(3) Include, in the budget, a line item for an annual set-aside of 5 percent of the grant amount to support emerging needs that are consistent with the proposed project's intended outcomes, as those needs are identified in consultation with, and approved by, the OSEP project officer. With approval from the OSEP project officer, the project must reallocate any remaining funds from this annual set-aside no later than the end of the third quarter of each budget period;
(4) Maintain a high-quality website, with an easy-to-navigate design, that meets government or industry-recognized standards for accessibility; and
(5) Include, in Appendix A, an assurance to assist OSEP with the transfer of pertinent resources and products and to maintain the continuity of services to States during the transition to this new award period and at the end of this award period, as appropriate.
In deciding whether to continue funding the project for the fourth and fifth years, the Secretary will consider the requirements of 34 CFR 75.253(a), including—
(a) The timeliness with which, and how well, the requirements of the negotiated cooperative agreement have been or are being met by the project; and
(b) The quality, relevance, and usefulness of the project's products and services and the extent to which the project's products and services are aligned with the project's objectives and likely to result in the project achieving its intended outcomes.
Under 34 CFR 75.253, the Secretary may reduce continuation awards or discontinue awards in any year of the project period for excessive carryover balances or a failure to make substantial progress. The Department intends to closely monitor unobligated balances and substantial progress under this program and may reduce or discontinue funding accordingly.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2023 from the list of unfunded applications from this competition.
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(a) Recipients of funding under this competition must make positive efforts to employ and advance in employment qualified individuals with disabilities (see section 606 of IDEA).
(b) Applicants for, and recipients of, funding must, with respect to the aspects of their proposed project relating to the absolute priority, involve individuals with disabilities, or parents of individuals with disabilities ages birth through 26, in planning, implementing, and evaluating the project (see section 682(a)(1)(A) of IDEA).
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• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, reference citations, and captions, as well as all text in charts, tables, figures, graphs, and screen shots.
• Use a font that is 12 point or larger.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to the cover sheet; the budget section, including the narrative budget justification; the assurances and certifications; or the abstract (follow the guidance provided in the application package for completing the abstract), the table of contents, the list of priority requirements, the resumes, the reference list, the letters of support, or the appendices. However, the recommended page limit does apply to all of the application narrative, including all text in charts, tables, figures, graphs, and screen shots.
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(1) The Secretary considers the significance of and need for the proposed project.
(2) In determining the significance of and need for the proposed project, the Secretary considers the following factors:
(i) The extent to which specific gaps or weaknesses in services, infrastructure, or opportunities have been identified and will be addressed by the proposed project, including the nature and magnitude of those gaps or weaknesses.
(ii) The importance or magnitude of the results or outcomes likely to be attained by the proposed project.
(b)
(1) The Secretary considers the quality of the services to be provided by, and the quality of the design of, the proposed project.
(2) In determining the quality of the services to be provided by the proposed project, the Secretary considers the quality and sufficiency of strategies for ensuring equal access and treatment for eligible project participants who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(3) In addition, the Secretary considers the following factors:
(i) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable.
(ii) The extent to which there is a conceptual framework underlying the proposed research or demonstration activities and the quality of that framework.
(iii) The extent to which the services to be provided by the proposed project reflect up-to-date knowledge from research and effective practice.
(iv) The extent to which the training or professional development services to be provided by the proposed project are of sufficient quality, intensity, and duration to lead to improvements in practice among the recipients of those services.
(v) The extent to which the TA services to be provided by the proposed project involve the use of efficient strategies, including the use of technology, as appropriate, and the leveraging of non-project resources.
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(1) The Secretary considers the quality of the evaluation to be conducted of the proposed project.
(2) In determining the quality of the evaluation, the Secretary considers the following factors:
(i) The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed project.
(ii) The extent to which the methods of evaluation provide for examining the effectiveness of project implementation strategies.
(iii) The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes.
(iv) The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and will produce quantitative and qualitative data to the extent possible.
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(1) The Secretary considers the adequacy of resources for the proposed project and the quality of the personnel who will carry out the proposed project.
(2) In determining the quality of project personnel, the Secretary considers the extent to which the applicant encourages applications for employment from persons who are
(3) In addition, the Secretary considers the following factors:
(i) The qualifications, including relevant training and experience, of the project director or principal investigator.
(ii) The qualifications, including relevant training and experience, of key project personnel.
(iii) The qualifications, including relevant training and experience, of project consultants or subcontractors.
(iv) The qualifications, including relevant training, experience, and independence, of the evaluator.
(v) The adequacy of support, including facilities, equipment, supplies, and other resources, from the applicant organization or the lead applicant organization.
(vi) The relevance and demonstrated commitment of each partner in the proposed project to the implementation and success of the project.
(vii) The extent to which the budget is adequate to support the proposed project.
(viii) The extent to which the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project.
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(1) The Secretary considers the quality of the management plan for the proposed project.
(2) In determining the quality of the management plan for the proposed project, the Secretary considers the following factors:
(i) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.
(ii) The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project.
(iii) The adequacy of mechanisms for ensuring high-quality products and services from the proposed project.
(iv) How the applicant will ensure that a diversity of perspectives is brought to bear in the operation of the proposed project, including those of parents, teachers, the business community, a variety of disciplinary and professional fields, recipients or beneficiaries of services, or others, as appropriate.
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In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
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Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
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(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an objective process of evaluating Federal award applications (2 CFR 200.205);
(b) Prohibiting the purchase of certain telecommunication and video surveillance services or equipment in alignment with section 889 of the National Defense Authorization Act of 2019 (Pub. L. 115-232) (2 CFR 200.216);
(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials produced in the United States (2 CFR 200.322); and
(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer effectuates the program goals or agency priorities (2 CFR 200.340).
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
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The measures apply to projects funded under this competition, and grantees are required to submit data on these measures as directed by OSEP.
Grantees will be required to report information on their project's performance in annual and final performance reports to the Department (34 CFR 75.590).
The Department will also closely monitor the extent to which the products and services provided by the Accessible Data Center meet needs identified by stakeholders and may require the Accessible Data Center to report on such alignment in its annual and final performance reports.
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In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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The Commission strongly encourages electronic filing. Please file motions to intervene, protests, comments, recommendations, preliminary terms and conditions, and preliminary fishway prescriptions using the using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application has been accepted for filing and is now ready for environmental analysis.
The Council on Environmental Quality (CEQ) issued a final rule on April 20, 2022, revising the regulations under 40 CFR parts 1502, 1507, and 1508 that federal agencies use to implement the National Environmental Policy Act (NEPA) (see
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The Cutler Project is the furthest downstream of the five PacifiCorp hydroelectric developments on the Bear River system. The Bear River system is collectively operated by PacifiCorp and is a coordinated operation of storage reservoirs, diversion dams, canals, and hydroelectric plants located within a 3,500-square-mile area of the lower Bear River Basin in Idaho and Utah. Water is diverted from the Bear River into Bear Lake, which is a natural lake via the Rainbow Canal. Outside of the irrigation season, Bear Lake flood control releases, along with winter and spring Bear River drainage natural water flows, create the base for generation at the Cutler Project. In southern Cache Valley, there are local drainage basins that also contribute significant inflows to the project. From mid-June to mid-October, nearly all the natural flow from the Bear River is diverted for irrigation. Supplemental flow comes from water stored in Bear Lake. Given that during the irrigation season most of the inflow into the project is sent to the irrigation canals and the reservoir must maintain certain elevations, generation at the powerhouse is virtually nonexistent from approximately mid-May to the end of September, unless water is available in higher flow years.
PacifiCorp proposes to continue to operate the project in a run-of-river mode and maintain the current upper operating limit elevation on the reservoir, with a modest expansion to the tolerance. PacifiCorp also proposes to expand the range of the lower operating limit outside the irrigation season, both to increase operational flexibility. Increasing the operating range is to support variable (
m. A copy of the application can be viewed on the Commission's website at
n. Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, and .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's
All filings must (1) bear in all capital letters the title “PROTEST”, “MOTION TO INTERVENE”, “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “PRELIMINARY TERMS AND CONDITIONS,” or “PRELIMINARY FISHWAY PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
You may also register online at
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q. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of this notice.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on July 6, 2022, Dale Ancell submitted for filing, application for authority to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act, 16 U.S.C. 825d (b) and Part 45.1 and 45.8 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 45.8.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) is suspending the environmental review schedule of the CP2 LNG and CP Express Projects (Projects) involving construction and operation of facilities by Venture Global CP2 LNG, LLC (CP2 LNG) and Venture Global CP Express, LLC (CP Express) in Jasper and Newton Counties, Texas, and Calcasieu and Cameron Parishes, Louisiana. The notice of schedule, issued on February 9, 2022, identified a July 2022 draft Environmental Impact Statement (EIS) issuance date and a February 10, 2023 final EIS date. This schedule was based upon CP2 LNG and CP Express providing complete and timely responses to any data requests. Environmental or engineering data requests were issued on February 11, April 11, April 14, and May 11, 2022. CP2 LNG and CP Express responded partially to these data requests on March 3, March 11, March 31, April 22, May 2, May 4, May 20, May 31, June 10, and June 30, 2022. A number of responses to data requests remain outstanding and/or are deficient, including the following, which are integral to the development of the draft EIS:
As stated in our data requests, complete responses to these information requests within the time frame requested was necessary to maintain the published schedule for issuance of the EIS. CP2 LNG and CP Express have indicated in its responses to staff data requests that certain information would not be provided in time for staff to evaluate the responses and complete the analysis required for the draft EIS. Because there are still a number of outstanding responses to staff's environmental and engineering data requests, FERC staff are no longer able to complete the draft EIS as scheduled.
Therefore, the Commission will suspend the environmental review schedule for the Projects. Once CP2 LNG and CP Express provide the outstanding information or a schedule for when all substantive responses would be provided, the Commission will issue a revised schedule for the draft and final EIS. This is not a suspension of the Commission staff's review of the CP2 LNG and CP Express' Projects. Staff will continue to process CP2 LNG and CP Express' proposal to the extent possible based upon the information filed to date while awaiting the remaining data responses.
Additional information about the Projects are available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
Public sessions or site visits will be posted on the Commission's calendar located at
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office announces two public meetings of the Clean Air Scientific Advisory Committee (CASAC) Ozone Review Panel. A public meeting will be held for the CASAC Ozone Review Panel to receive a briefing from EPA on the 2020 Ozone Integrated Science Assessment (ISA) and to hear public comments. A second public meeting will be held for the panel to
The public meeting for the panel to receive the briefing from EPA and public comments will be held on August 29, 2022, from 11:00 a.m. to 3:00 p.m. The public meeting for the panel to discuss scientific issues related to the 2020 Ozone ISA will be held on Monday, September 12, 2022, from 11:00 a.m. to 5:00 p.m.; Wednesday, September 14, 2022, from 11:00 a.m. to 5:00 p.m.; Friday, September 16, 2022, from 11:00 a.m. to 5:00 p.m. All times listed are in Eastern Time.
The meetings will be conducted virtually. Please refer to the CASAC website at
Any member of the public wishing further information regarding this notice may contact Mr. Aaron Yeow, Designated Federal Officer (DFO), SAB Staff Office, by telephone at (202) 564-2050 or via email at
The CASAC is a Federal Advisory Committee chartered under the Federal Advisory Committee Act (FACA), 5 U.S.C., app. 2, and conducts business in accordance with FACA and related regulations. The CASAC and the CASAC Ozone Review Panel will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies. Pursuant to FACA and EPA policy, notice is hereby given that the CASAC Ozone Review Panel will hold public meetings to receive a briefing from EPA on the 2020 Ozone Integrated Science Assessment (ISA), to hear public comments, and for the panel to discuss scientific issues related to the 2020 Ozone ISA.
Environmental Protection Agency (EPA).
Notice.
EPA is seeking public comment on a November 18, 2021 petition filed by the United Farm Workers, United Farm Workers Foundation, Earthjustice, California Rural Legal Assistance Foundation, Farmworker Association of Florida, Farmworker Justice, GreenLatinos, Labor Council for Latin American Advancement, League of United Latin American Citizens, Learning Disabilities Association of America, Pesticide Action Network North America, and Pineros y Campesinos Unidos del Noroeste (the Earthjustice Petition). The petitioners request that the Agency revoke all tolerances and cancel all associated registrations for food uses of
Comments must be received on or before August 11, 2022.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2022-0490, through the
Anna Romanovsky, Pesticide Re-Evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 566-2271; email address:
This action is directed to the public in general and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
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A copy of the Earthjustice Petition,
EPA seeks public comment during the next 30 days on a petition dated November 18, 2021 (available in docket number EPA-HQ-OPP-2022-0490 at
The OPs are a group of pesticides with a broad range of uses and are one of the most widely used class of pesticides in U.S. agriculture. The OPs are a class of chemicals with a common mechanism of toxicity: inhibition of the acetylcholinesterase (AChE) enzyme. There are currently 20 OPs going through registration review. EPA's risk assessments and other registration review materials for the OPs included in the Earthjustice Petition are contained in the dockets for each of the respective registration review cases, as listed here:
• Acephate (EPA-HQ-OPP-2008-0915).
• Bensulide (EPA-HQ-OPP-2008-0022).
• Chlorethoxyfos (EPA-HQ-OPP-2008-0843).
• Chlorpyrifos-methyl (EPA-HQ-OPP-2010-0119).
• Diazinon (EPA-HQ-OPP-2008-0351).
• Dichlorvos (EPA-HQ-OPP-2009-0209).
• Dicrotophos (EPA-HQ-OPP-2008-0440).
• Dimethoate (EPA-HQ-OPP-2009-0059).
• Ethoprop (EPA-HQ-OPP-2008-0560).
• Malathion (EPA-HQ-OPP-2009-0317).
• Naled (EPA-HQ-OPP-2009-0053).
• Phorate (EPA-HQ-OPP-2007-0674).
• Phosmet (EPA-HQ-OPP-2009-0316).
• Terbufos (EPA-HQ-OPP-2008-0119).
• Tribufos (EPA-HQ-OPP-2008-0883).
On December 2, 2021, the Agency released an updated schedule for registration review for the cases for which interim registration review decisions will be issued after October 2022. The schedule can be found on the EPA website at
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of the EPA's preliminary work plans for the following chemicals: Ametoctradin, Fenpyrazamine, Picoxystrobin, and
Comments must be received on or before September 12, 2022.
Submit your comments, to the docket identification (ID) number for the specific pesticide of interest provided in the Table in Unit IV., through the
This action is directed to the public in general and may be of interest to a wide range of stakeholders including environmental, human health, farm worker, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the Chemical Review Manager identified in Table 1 in Unit IV.
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Registration review is the EPA's periodic review of pesticide registrations to ensure that each pesticide continues to satisfy the statutory standard for registration, that is, the pesticide can perform its intended function without unreasonable adverse effects on human health or the environment. Registration review dockets contain information that will assist the public in understanding the types of information and issues that the Agency may consider during the course of registration reviews. As part of the registration review process, the Agency has completed preliminary workplans for all pesticides listed in Table 1 in Unit IV. Through this program, the EPA is ensuring that each pesticide's registration is based on current scientific and other knowledge, including its effects on human health and the environment.
The EPA is conducting its registration review of the chemicals listed in Table 1 in Unit IV. pursuant to section 3(g) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Procedural Regulations for Registration Review at 40 CFR part 155, subpart C. FIFRA section 3(g) provides, among other things, that the registrations of pesticides are to be reviewed every 15 years. Under FIFRA, a pesticide product may be registered or remain registered only if it meets the statutory standard for registration given in FIFRA section 3(c)(5) (7 U.S.C. 136a(c)(5)). When used in accordance with widespread and commonly recognized practice, the pesticide product must perform its intended function without unreasonable adverse effects on the environment; that is, without any unreasonable risk to man or the environment, or a human dietary risk from residues that result from the use of a pesticide in or on food.
A pesticide's registration review begins when the Agency establishes a docket for the pesticide's registration review case and opens the docket for public review and comment. Pursuant to 40 CFR 155.50, this notice announces the availability of the EPA's preliminary work plans for the pesticides shown in
The registration review docket contains information that the Agency may consider in the course of the registration review. The Agency may include information from its files including, but not limited to, the following information:
• An overview of the registration review case status.
• A list of current product registrations and registrants.
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• Risk assessments.
• Bibliographies concerning current registrations.
• Summaries of incident data.
• Any other pertinent data or information.
Each docket contains a document summarizing what the Agency currently knows about the pesticide case and a preliminary work plan for anticipated data and assessment needs. Additional documents provide more detailed information. During this public comment period, the Agency is asking that interested persons identify any additional information they believe the Agency should consider during the registration reviews of these pesticides. The Agency identifies in each docket the areas where public comment is specifically requested, though comment in any area is welcome.
The registration review procedural rule at 40 CFR 155.50(b) provides for a minimum 60-day public comment period on all preliminary registration review work plans. This comment period is intended to provide an opportunity for public input and a mechanism for initiating any necessary changes to a pesticide's workplan. All comments should be submitted using the methods in
The Agency will carefully consider all comments received by the closing date and may provide a “Response to Comments Memorandum” in the docket. The final registration review work plan will explain the effect that any comments had on the final work plan and provide the Agency's response to significant comments.
Background on the registration review program is provided at:
Environmental Protection Agency (EPA).
Notice.
This notice announces the Environmental Protection Agency's (EPA) approval of the Maine Department of Environmental Protection (ME DEP) request to revise/modify certain of its EPA-authorized programs to allow electronic reporting.
EPA approves the authorized program revisions/modifications as of July 12, 2022.
Shirley M. Miller, U.S. Environmental Protection Agency, Office of Information Management, Mail Stop 2824T, 1200 Pennsylvania Avenue NW, Washington, DC 20460, (202) 566-2908,
On October 13, 2005, the final Cross-Media Electronic Reporting Rule (CROMERR) was published in the
On May 19, 2022, the Maine Department of Environmental Protection (ME DEP) submitted an application titled National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Tool (NeT) for revisions/modifications to its EPA-approved programs under title 40 CFR to allow new electronic reporting. EPA reviewed
ME DEP was notified of EPA's determination to approve its application with respect to the authorized programs listed above.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than August 11, 2022.
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General Services Administration, (GSA).
Notice of a Modified System of Records.
GSA proposes to revise a system of records subject to the Privacy Act of 1974, as amended. The system will provide for the collection of information to track and manage the Art in Architecture program, the National Artist Registry, and the fine arts collection.
Applicable: August 11, 2022.
Submit comments identified by “Notice-ID-2022-0X, Modify System of Records” via
Call or email the GSA Chief Privacy Officer: telephone 202-322-8246; email
GSA proposes to modify a system of records subject to the Privacy Act of 1974, 5 U.S.C. 552a. The modified system will continue to provide for the collection of information to track and manage the Art in Architecture program and now includes optional data elements within the “categories of records”, clarifies one routine use and updates the records retention description to enhance collection management.
The Museum System (TMS) GSA/PBS-7.
Unclassified.
The system is maintained for GSA under contract, and the records are maintained in electronic form. The system and records are located at the vendor location in RTP Data Center (GSA Building Code NC9999), 109 T.W. Alexander Drive, Research Triangle Park, NC 27711.
General Services Administration, Attn: Jennifer Gibson, Director, Center for Fine Arts, 1800 F Street NW, Washington, DC 20405; email
The system contains information needed for managing the Art in Architecture, Fine Arts, and the Design Excellence Peer programs, which includes access to information on artists represented in the fine arts collection, artists in the National Registry, and participants in the Design Excellence Peer program. Records may include but are not limited to: (1) Biographical data such as name, birth date, and educational level; and (2) contact information such as telephone number, street address and email address; and (3) optional demographic information including gender, race and ethnicity.
h. In consultation with the artist or the artist's representatives and consistent with professional practices in other arts institutions, nationality, city, state, country and year of birth may be disclosed to the public when relevant to an artist's work.
121.1/040 Significant Art Inventory Records.
This series contains records used in identifying items within the building that are removable or replaceable, or have a significant historical and/or architectural value. For art associated with a building (such as statuary, paintings, and architectural features), records such as inventories, case files, art maintenance records, art appraisals and art restoration documents and related materials are included.
86 FR 46849.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Request for Supplemental Evidence and Data Submissions.
The Agency for Healthcare Research and Quality (AHRQ) is seeking scientific information submissions from the public. Scientific information is being solicited to inform our review on
Jenae Benns, Telephone: 301-427-1496 or Email:
The Agency for Healthcare Research and Quality has commissioned the Evidence-based Practice Center (EPC) Program to complete a review of the evidence for
The EPC Program is dedicated to identifying as many studies as possible that are relevant to the questions for each of its reviews. In order to do so, we are supplementing the usual manual and electronic database searches of the literature by requesting information from the public (
This is to notify the public that the EPC Program would find the following information on Radiation Therapy for Bone Metastases helpful:
A list of completed studies that your organization has sponsored for this indication. In the list, please
Description of whether the above studies constitute
Your contribution is very beneficial to the Program. Materials submitted must be publicly available or able to be made public. Materials that are considered confidential; marketing materials; study types not included in the review; or information on indications not included in the review cannot be used by the EPC Program. This is a voluntary request for information, and all costs for complying with this request must be borne by the submitter.
The draft of this review will be posted on AHRQ's EPC Program website and
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other federal agencies the opportunity to comment on a proposed information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Milestone Tracker In-App survey to understand the outcome of the Milestone Tracker app on developmental surveillance. This project is designed to evaluate the Milestone Tracker mobile application (app) developed by CDC's “Learn the Signs. Act Early.” program and will be used to understand how the app is being used, if users find it helpful, and if the app helped them to identify a possible developmental concern(s).
CDC must receive written comments on or before September 12, 2022.
You may submit comments, identified by Docket No. CDC-2022-0081 by either of the following methods:
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To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H21-8, Atlanta, Georgia 30329; Telephone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected;
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Milestone Tracker In-App Survey to Understand the Outcome of the Milestone Tracker App on Developmental Surveillance—New—National Center on Birth Defects and Developmental Disabilities (NCBDDD), Centers for Disease Control and Prevention (CDC)
The Centers for Disease Control and Prevention's “Learn the Signs. Act Early.” program (LTSAE) promotes efforts to increase developmental monitoring across all 50 states, the District of Columbia, and other U.S. territories through its Act Early Initiatives and Act Early Ambassador program, which heavily promote use of
Since the app release in 2017, the program has had limited capability to evaluate target outcomes and impact of use of the app. Without directly asking the app users, the program has no way to know if use of this app is helpful, has made a difference in terms of identifying developmental delays among children, or if it is helping children get the services and support they may need as a result. This web-based survey evaluation will allow LTSAE to collect this information and assess the outcomes and impact of this tool to determine if the app is having the intended impact and should be continued to be made available as is or with improvements.
The goal of the LTSAE program is to improve early identification of developmental delays and disabilities by developing high-quality, evidence informed and parent-friendly tools and resources to facilitate ongoing family-engaged developmental monitoring. The
The goal of this project is to evaluate the
CDC requests OMB approval for an estimated 8,000 annual burden hours. There is no cost to respondents other than their time to participate.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled “Fire Fighter Fatality Investigation and Prevention Program Survey” to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on January 31, 2022 to obtain comments from the public and affected agencies. CDC did not receive comments related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570. Comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Fire Fighter Fatality Investigation and Prevention Program (FFFIPP) Survey—New—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
The Fire Fighter Fatality Investigation and Prevention Program (FFFIPP) conducts independent investigations of fire fighter (FF) line-of-duty deaths (LODD) and recommends ways to prevent deaths and injuries. In 2003, an evaluation was conducted to determine the extent to which recommendations from NIOSH investigations of FF fatalities are being implemented by fire departments (FDs).
Since then, there have been changes to the Program recommendations and methods of disseminating FFFIPP reports. For example, there have been changes to: (1) the details and types of recommendations for preventing FF fatalities, and (2) the method to disseminate the FFFIPP reports to FDs (driven in large part by cost). Dissemination methods have evolved from hardcopy mailings to FDs, to internet-based, with notifications of new FFFIPP reports by the fire service media, and if FDs sign-up, at the NIOSH website for notifications of new reports.
Understanding how, or if NIOSH recommendations are used by various types of FDs will allow a better understanding of barriers to the use of proven prevention recommendations and help identify approaches to improve the delivery of services to FDs. Additionally, we will gain insight into whether changes to the communication and dissemination has impacted the reach of these recommendations. Knowing if different types of FDs are aware of and willing to access FFFIPP reports and recommendations in non-print formats is critical, as these recommendations cannot have the intended impact of saving fire fighter lives if large numbers of FDs do not know where to find NIOSH reports or have the resources to access them.
The purpose of this data collection is to assess FD implementation of the NIOSH FFFIPP recommendations and identify barriers to implementation of recommendations. Results will provide an understanding of current FD operational procedures, insight into motor vehicle (MV)-related activities and related policies, and identify whether FFFIPP recommendations are being utilized by FDs. Findings will inform strategies for communication of future recommendations and identify areas for potential intervention projects in order to improve the delivery of services and help ensure an effective and efficient stakeholder experience with the Program.
The estimate for burden hours is based on a pilot test of the survey instrument by eight FD personnel. In the pilot test, the average time to complete the survey including time for reviewing instructions, gathering needed information, and completing the survey was 10-25 minutes. There are screening questions at the beginning of the survey so all respondents may not actually participate. The respondent universe is based on: (1) 4,500 FDs, (2) eight strata (region, department type), and (3) positions (firefighter, chief, company officer). An estimated 13,500 respondents are anticipated to participate in the survey. The annual respondent burden is estimated to be 4,050 hours. There is no cost to respondents other than their time to participate.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled, “Aggregate Reports for Tuberculosis Program Evaluation” to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on March 14, 2022, to obtain comments from the public and affected agencies. CDC did not receive comments related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570. Comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Aggregate Reports for Tuberculosis Program Evaluation (OMB Control No. 0920-0457, Exp. 12/31/2022)—Extension—National Center for HIV, Viral Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
Centers for Disease Control and Prevention, National Center for HIV, Viral Hepatitis, STD, and TB Prevention, Division of Tuberculosis Elimination (CDC/NCHHSTP/DTBE) requests an Extension of the Aggregate Reports for Tuberculosis Program Evaluation information collection, previously approved under OMB Control No. 0920-0457. This request is for a three-year period.
The requested Extension allows awardees to address the change in the national strategies for TB control and prevention emphasizing treatment of individuals with latent TB infection (LTBI) and at high risks of progression to TB disease. This data collection will help programs to assess high-risk populations served and to evaluate the adaptation and effectiveness of new diagnostic tests and drug regimens in treating LTBI.
DTBE is the lead agency for tuberculosis elimination in the United States. To ensure the elimination of tuberculosis in the United States, CDC monitors indicators for key program activities, such as finding tuberculosis infections in recent contacts of cases, and in other persons likely to be infected, and providing therapy for latent tuberculosis infection. In 2000, CDC implemented two program evaluation reports for annual submission: (1) Aggregate report of follow-up and treatment for contacts to tuberculosis cases, and (2) Aggregate report of targeted testing and treatment for latent tuberculosis infection. The respondents for these reports are the 67 state and local tuberculosis control programs receiving federal cooperative agreement funding through DTBE. These reports emphasize treatment outcomes, high-priority target populations vulnerable to tuberculosis, and electronic report entry and submission to CDC through the National Tuberculosis Indicators Project (NTIP), a secure web-based system for program evaluation data. No other federal agency collects this type of national tuberculosis data. The Aggregate report of follow-up for contacts of tuberculosis and Aggregate report of targeted testing and treatment for latent tuberculosis infection are the only data source about latent tuberculosis infection for monitoring national progress toward tuberculosis elimination with these activities. CDC provides ongoing assistance in the preparation and utilization of these reports at the local and state levels of public health jurisdiction. CDC also provides respondents with technical support for NTIP access.
CDC requests OMB approval for an estimated 268 annual burden hours. Participation by respondents is voluntary, and there is no cost to participants other than their time.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request ”Fellowship Management System (FMS)” to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on March 14, 2022 to obtain comments from the public and affected agencies. CDC did not receive comments related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570. Comments and recommendations for the proposed information collection should be sent within 30 days of publication of
Fellowship Management System (FMS) (OMB Control No. 0920-0765, Exp. 3/31/2023)—Revision—Center for Surveillance, Epidemiology, and Laboratory Services (CSELS), Centers for Disease Control and Prevention (CDC).
CDC's Division of Scientific Education and Professional Development (DSEPD), in the Center for Surveillance, Epidemiology, and Laboratory Services (CSELS), requests OMB approval to continue use of the CDC Fellowship Management System (FMS) (OMB Control No. 0920-0765), with changes. The mission of DSEPD is to improve health outcomes through a competent, sustainable, and empowered public health workforce. Professionals in public health, epidemiology, medicine, economics, information science, veterinary medicine, nursing, public policy, and other related professionals seek opportunities, through CDC fellowships, to broaden their knowledge, and skills to improve the science and practice of public health. CDC fellows are assigned to state, tribal, local, and territorial public health agencies; federal government agencies, including CDC and Department of Health and Human Services' (HHS) operational divisions, such as Centers for Medicare & Medicaid Services; and to nongovernmental organizations, including academic institutions, tribal organizations, and private public health organizations.
CDC uses FMS to collect, process, and manage data from nonfederal applicants seeking training or public health support services through CDC fellowships. FMS is used to electronically submit fellowship applications, submit fellowship host site proposals, track completion of fellowship activities, and maintain fellowship alumni directories online. FMS is a flexible and robust electronic information system standardized and tailored for each CDC fellowship, collecting only the minimum amount of information needed. The system is critical to streamlining data management for CDC and reducing burden for respondents. FMS is key to CDC's ability to protect the public's health by supporting training opportunities that strengthen the public health workforce.
The proposed revision has two purposes: (1) increase the number of likely respondents, and (2) change the software platform on which FMS operates. The increase in the estimated number of respondents is a result of increased funding that will allow DSEPD to expand many of the fellowships managed through FMS. The change in software platform will provide CDC with an even more efficient, effective, and secure electronic mechanism for collecting, processing, and monitoring fellowship information. The proposed software platform is the Microsoft® Power Platform® (Microsoft Corporation, Cary, Washington). Integration of the suite of Microsoft tools for data management, analysis, and visualization will allow CDC to access fellowship data in real time; moreover, data cleaning and manipulation do not need to be done outside the system, which will increase the security of these data. These increased functionalities will facilitate the enhanced use of administrative data collections for program improvement and evidence building activities across CDC and other federal agencies. The update to the software platform will also make it easier for additional fellowships to opt to use FMS, expanding the benefits of the system to a broader set of CDC programs. Finally, the platform change also should enhance user experience. This revision does not propose substantive changes to the nature or extent of information collected from respondents.
OMB approval is requested for three years. The revision will allow all respondents—fellowship applicants, public health agencies hosting fellowship participants, and fellowship alumni—the continued use of FMS for submission of electronic data with increased efficiency and reduced burdens.
The annualized burden table reflects OMB-approved changes since 2020 and anticipated growth in fellowships from 2022 onward. There is no cost to respondents other than their time. The total estimated annualized burden hours are 13,186.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is withdrawing approval of 31 abbreviated new drug applications (ANDAs) from multiple applicants. The applicants notified the Agency in writing that the drug products were no longer marketed and requested that the approval of the applications be withdrawn.
Approval is withdrawn as of August 11, 2022.
Martha Nguyen, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 75, Rm. 1676, Silver Spring, MD 20993-0002, 240-402-6980,
The applicants listed in the table have informed FDA that these drug products are no longer marketed and have requested that FDA withdraw approval of the applications under the process described in § 314.150(c) (21 CFR 314.150(c)). The applicants have also, by their requests, waived their opportunity for a hearing. Withdrawal of approval of an application or abbreviated application under § 314.150(c) is without prejudice to refiling.
Therefore, approval of the applications listed in the table, and all amendments and supplements thereto, is hereby withdrawn as of August 11, 2022. Approval of each entire application is withdrawn, including any strengths and dosage forms inadvertently missing from the table. Introduction or delivery for introduction into interstate commerce of products without approved new drug applications violates section 301(a) and
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the revocation of the Emergency Use Authorization (EUA) (the Authorization) issued to Fresenius Kabi USA, LLC (Fresenius Kabi), for Fresenius Propoven 2% Emulsion. FDA revoked the Authorization on May 10, 2022, under the Federal Food, Drug, and Cosmetic Act (FD&C Act). The revocation, which includes an explanation of the reasons for the revocation, is reprinted in this document.
The Authorization is revoked as of May 10, 2022.
Submit written requests for single copies of the revocation to the Office of Counterterrorism and Emerging Threats, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4338, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request or include a fax number to which the Authorizations may be sent. See the
Michael Mair, Office of Counterterrorism and Emerging Threats, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4332, Silver Spring, MD 20993-0002, 301-796-8510 (this is not a toll-free number).
Section 564 of the FD&C Act (21 U.S.C. 360bbb-3) as amended by the Project BioShield Act of 2004 (Pub. L. 108-276) and the Pandemic and All-Hazards Preparedness Reauthorization Act of 2013 (Pub. L. 113-5) allows FDA to strengthen the public health protections against biological, chemical, nuclear, and radiological agents. Among other things, section 564 of the FD&C Act allows FDA to authorize the use of an unapproved medical product or an unapproved use of an approved medical product in certain situations. On May 8, 2020, FDA issued an Authorization (EUA 050) to Fresenius Kabi for Fresenius Propoven 2% Emulsion, subject to the terms of the Authorization. Notice of the issuance of the Authorization was published in the
In a request received by FDA on April 8, 2022, Fresenius Kabi requested revocation of, and on May 10, 2022, FDA revoked, the Authorization for the Fresenius Propoven 2% Emulsion. Because Fresenius Kabi notified FDA that it does not intend to offer the Fresenius Propoven 2% Emulsion in the United States anymore and requested FDA revoke the EUA for the Fresenius Propoven 2% Emulsion, FDA has determined that it is appropriate to protect the public health or safety to revoke this Authorization.
An electronic version of this document and the full text of the revocation is available on the internet at
Having concluded that the criteria for revocation of the Authorization under section 564(g)(2)(C) of the FD&C Act are met, FDA has revoked the EUA for Fresenius Kabi's Fresenius Propoven 2% Emulsion. The revocation in its entirety follows and provides an explanation of the reasons for revocation, as required by section 564(h)(1) of the FD&C Act.
Food and Drug Administration, HHS.
Notice of availability; extension of comment period.
The Food and Drug Administration (FDA or the Agency) is extending the comment period for the notice of availability entitled “Risk Management Plans to Mitigate the Potential for Drug Shortages; Draft Guidance for Industry; Availability; Agency Information Collection Activities; Proposed Collection; Comment Request” that appeared in the
FDA is extending the comment period on the “Risk Management Plans to Mitigate the Potential for Drug Shortages; Draft Guidance for Industry; Availability; Agency Information Collection Activities; Proposed Collection; Comment Request” published May 20, 2022 (87 FR 30963). Submit either electronic or written comments by August 31, 2022, to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of this draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002, or Office of Communication, Outreach, and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request or include a fax number to which the draft guidance may be sent. See the
In the
Persons with access to the internet may obtain an electronic version of the draft guidance at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Coast Guard, DHS.
Notice of recertification.
The Coast Guard announces the recertification of the Cook Inlet Regional Citizens' Advisory Council (CIRCAC) as an alternative voluntary advisory group for Cook Inlet, Alaska. This certification allows the CIRCAC to monitor the activities of terminal facilities and crude oil tankers under the Cook Inlet Program established by the Oil Terminal and Oil Tanker Environmental Oversight and Monitoring Act of 1990.
This recertification is effective for the period from September 1, 2022 through August 31, 2023.
For information about this document, call or email LT Lauren Bloch, Seventeenth Coast Guard District (dpi), by phone at (907) 463-2812 or email at
The Coast Guard published guidelines on December 31, 1992 (57 FR 62600), to assist groups seeking recertification under the Oil Terminal and Oil Tanker Environmental Oversight and Monitoring Act of 1990 (33 U.S.C. 2732) (the Act). The Coast Guard issued a policy statement on July 7, 1993 (58 FR 36504), to clarify the factors that the Coast Guard would be considering in making its determination as to whether advisory groups should be certified in accordance with the Act, and the procedures which the Coast Guard would follow in meeting its certification responsibilities under the Act.
Most recently, on September 16, 2002 (67 FR 58440), the Coast Guard changed its policy on recertification procedures for regional citizen's advisory council by requiring applicants to provide comprehensive information every three years. For each of the two years between the triennial application procedures, applicants submit a letter requesting recertification that includes a description of any substantive changes to the information provided at the previous triennial recertification. Further, public comment is only solicited during the triennial comprehensive review.
By letter dated June 29, 2022, the Commander, Seventeenth Coast Guard District, certified that the CIRCAC qualifies as an alternative voluntary advisory group under 33 U.S.C. 2732(o). This recertification terminates on August 31, 2023.
Coast Guard, Department of Homeland Security.
Notice of federal advisory committee meeting.
The Great Lakes Pilotage Advisory Committee (Committee) will meet at the Port of Monroe, Michigan, to discuss matters relating to Great Lakes Pilotage, including review of proposed Great Lakes Pilotage regulations and policies. The meeting will be open to the public.
The meeting will be held at Great Lakes Port Authorities and Marine Terminals, 10 Port Avenue, Monroe, MI 48161.
The Great Lakes Pilotage Advisory Committee is committed to ensuring all participants have equal access regardless of disability status. If you require reasonable accommodation due to a disability to fully participate, please call or email the individual in the
Mr. Frank Levesque, Alternate Designated Federal Officer of the Great Lakes Pilotage Advisory Committee, telephone (571) 308-4941 or email
Notice of this meeting is in compliance with the
1. Pilot Staffing.
2. Soo Locks Operations.
3. Pilotage Assessment.
4. Necessary and Reasonable Expenses for Ratemaking.
5. Rulemaking Process and Ex Parte Communications.
6. Role of the Pilot.
7. Importance of System Reliability.
8. Fees for weather disruption.
9. United States Registered Pilot Credential.
10. Cruise Ships.
11. Great Lake Pilotage Initiatives and Projects.
12. Winter Navigation.
13. Public comments.
A copy of all meeting documentation will be available at
Public comments or questions will be taken throughout the meeting as the Committee discusses the issues and prior to deliberations and voting. There will also be a public comment period at the end of the meeting. Speakers are requested to limit their comments to 5 minutes. Please note that the public comment period will end following the last call for comments. Contact the individual listed in the
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Federal Regulations. The currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will be finalized on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
Comments are to be submitted on or before October 11, 2022.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA-B-2252, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities.
Each LOMR was finalized as in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP).
The date of November 17, 2022 has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP).
The date of December 1, 2022 has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Federal Regulations. The currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will be finalized on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of a modified system of records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security (DHS) proposes to modify and reissue a current DHS system of records titled, “DHS/U.S. Customs and Border Protection (CBP)-009 Electronic System for Travel Authorization System of Records.” The Electronic System for Travel Authorization (ESTA) system is a web-based system used to determine the eligibility of international travelers to travel to the United States under the Visa Waiver Program (VWP).
Submit comments on or before August 11, 2022. This modified system will be effective upon publication. New or modified routine uses will be effective August 11, 2022.
You may submit comments, identified by docket number USCBP-2022-0007 by one of the following methods:
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For general questions, please contact: Debra L. Danisek, (202) 344-1610,
In accordance with the Privacy Act of 1974, the Department of Homeland Security (DHS) proposes to update and reissue a current Department of Homeland Security system of records titled, “DHS/United States Customs and
DHS/CBP created the ESTA system to collect information from individuals intending to travel under the VWP, as well as representatives who submit information on behalf of the applicant. The ESTA application requests the intended traveler's name, country of birth and citizenship, date of birth, gender, travel document information, contact information (
Upon submission, DHS/CBP vets the application against selected security and law enforcement databases as well as publicly available sources, such as social media. The results of this vetting help to inform DHS/CBP's assessment of whether the traveler poses a law enforcement or security risk and whether the application should be approved. ESTA authorizations can take up to 72 hours to be complete. However, DHS/CBP is generally able to approve/deny an ESTA authorization within a much shorter time frame. If the ESTA application is denied, the applicant is not eligible to travel to the United States under the VWP.
DHS/CBP is publishing this modified system of records to make changes for transparency.
DHS/CBP is expanding the category of records to include photographs. As part of the ESTA application process, DHS/CBP collects applicant photographs, which may include both the passport photograph and/or a “selfie,” if submitting the ESTA application via the mobile application. As described above, the ESTA application requires several key pieces of biographic information, which can be found on the passport biographic data page (
DHS/CBP is also updating this notice to clarify the retention schedule for the data. The overall retention does not change, but DHS/CBP is more clearly documenting that these records are retained for 15 years.
Finally, DHS/CBP is also removing references to the I-94W, “Nonimmigrant Visa Waiver Arrival/Departure Record,” since the I-94W is not processed in ESTA. The I-94W is separately covered under the DHS/CBP-016 Nonimmigrant Information System, 80 FR 13398 (March 13, 2015).
Consistent with DHS's information sharing mission, information stored in the DHS/CBP-009 ESTA system of records may be shared with other DHS Components that have a need to know the information to carry out their national security, law enforcement, immigration, intelligence, or other homeland security functions. In addition, DHS/CBP may share information with appropriate federal, state, local, tribal, territorial, foreign, or international government agencies consistent with the routine uses set forth in this system of records notice.
This modified system will be included in DHS's inventory of record systems.
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which Federal Government agencies collect, maintain, use, and disseminate individuals' records. The
Below is the description of the DHS/CBP-009 Electronic System for Travel Authorization System of Records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.
Department of Homeland Security (DHS)/U.S. Customs and Border Protection (CBP)-009 Electronic System for Travel Authorization (ESTA) System of Records.
Unclassified and classified. The data may be retained on classified networks, but this does not change the nature and character of the data until it is combined with classified information.
Records are maintained at the DHS/CBP Headquarters in Washington, DC, and field offices. Records are replicated from the operational system and maintained on the DHS unclassified and classified networks to allow for analysis and vetting consistent with the stated uses, purposes, and routine uses published in this notice.
Director, ESTA Program Management Office,
Title IV of the Homeland Security Act of 2002, 6 U.S.C. 201
The purpose of this system is to collect and maintain a record of applicants who want to travel to the United States under the VWP, and to determine whether applicants are eligible to travel to and enter the United States under the VWP. The information provided through ESTA, including information about other persons included on the ESTA application, is vetted against various security and law enforcement databases to identify those applicants who pose a security risk to the United States and to inform CBP's decision to approve or deny the applicant's ESTA application.
Categories of individuals covered by this system include (1) individuals who wish to travel to the United States under the VWP and apply for an ESTA travel authorization and (2) persons, including U.S. citizens and lawful permanent residents, whose information is provided by the applicant in response to ESTA application questions (
An ESTA application includes:
• Full name (first, middle, and last);
• Other names or aliases, if available;
• Date of birth;
• Country of birth;
• Gender;
• Email address;
• Visa numbers, Laissez-Passer numbers, or Identity card numbers;
• Social media identifiers, such as username(s) and platforms used;
• Publicly available information from social media websites or platforms;
• Telephone number (home, mobile, work, other);
• Home address (address, apartment number, city, state/region);
• internet protocol (IP) address;
• ESTA application number;
• Global Entry Program Number;
• Country of residence;
• Passport information;
• Department of Treasury
• Countries of citizenship and nationality;
• National identification number, if available;
• Address while visiting the United States;
• Emergency point of contact information;
• U.S. Point of Contact information;
• Parents' names;
• Current and previous employer information; and,
• Photograph(s).
The categories of records in ESTA also include responses to questions related to the following:
○ History of mental or physical disorders, drug abuse or addiction,
○ Past arrests, criminal convictions, or illegal drug violations;
○ Previous engagement in terrorist activities, espionage, sabotage, or genocide;
○ History of fraud or misrepresentation;
○ Previous unauthorized employment in the United States;
○ Past denial of visa, or refusal or withdrawal of application for admission at a U.S. port of entry;
○ Previous overstay of authorized admission period in the United States;
○ Travel history and information relating to prior travel to or presence in Iraq or Syria, a country designated as a state sponsor of terrorism, or another country or area of concern;
○ Citizenship and nationality information, with additional detail required for nationals of certain identified countries of concern.
DHS/CBP obtains records from applicants or representatives (
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including the U.S. Attorneys Offices, or other federal agency conducting litigation or proceedings before any court, adjudicative, or administrative body, when it is relevant or necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee or former employee of DHS in his/her official capacity;
3. Any employee or former employee of DHS in his/her individual capacity, only when DOJ or DHS has agreed to represent the employee; or
4. The United States or any agency thereof.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration (NARA) or General Services Administration pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency or organization for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when (1) DHS suspects or has confirmed that there has been a breach of the system of records; (2) DHS has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, DHS (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
F. To another federal agency or federal entity, when DHS determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
G. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where CBP believes the information would assist enforcement of applicable civil or criminal laws and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
I. To appropriate federal, state, local, tribal, or foreign governmental agencies or multilateral governmental organizations for the purpose of protecting the vital health interests of a data subject or other persons (
J. To appropriate federal, state, local, tribal, or foreign governmental agencies or multilateral governmental organizations, with the approval of the Chief Privacy Officer, when DHS is aware of a need to use relevant data, that relate to the purpose(s) stated in this SORN, for purposes of testing new technology.
K. To third parties during the course of a law enforcement investigation to the extent necessary to obtain information pertinent to the investigation, provided disclosure is appropriate in the proper performance of the official duties of the officer making the disclosure.
L. To a federal, state, tribal, local, international, or foreign government agency or entity for the purpose of consulting with that agency or entity: (1) to assist in making a determination regarding redress for an individual in connection or program; (2) for the purpose of verifying the identity of an individual seeking redress in connection with the operations of a DHS Component or program; or (3) for the purpose of verifying the accuracy of information submitted by an individual who has requested such redress on behalf of another individual.
M. To a federal, state, tribal, local, international, or foreign government agency or entity in order to provide relevant information related to intelligence, counterintelligence, or counterterrorism activities authorized by U.S. law, Executive Order, or other applicable national security directive.
N. To the Department of State in the processing of petitions or applications for benefits under the Immigration and Nationality Act, and all other immigration and nationality laws including treaties and reciprocal agreements.
O. To an organization or individual in either the public or private sector, either foreign or domestic, when there is a reason to believe that the recipient is or could become the target of a particular terrorist activity or conspiracy, to the extent the information is relevant to the protection of life or property.
P. To the carrier transporting an individual to the United States, prior to travel, in response to a request from the carrier, to verify an individual's travel authorization status.
Q. To the Department of Treasury's Pay.gov, for payment processing and payment reconciliation purposes.
R. To a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, or in connection with criminal law proceedings.
S. To the Department of Treasury's Office of Foreign Assets Control (OFAC) for inclusion on the publicly issued List of Specially Designated Nationals and Blocked Persons (SDN List) of
T. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information, when disclosure is necessary to preserve confidence in the integrity of DHS, or when disclosure is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent the Chief Privacy Officer determines that release of the specific information in the context of a particular case would constitute a clearly unwarranted invasion of personal privacy.
DHS/CBP stores records in this system electronically or on paper in secure facilities in a locked drawer behind a locked door. The records may be stored on magnetic disc, tape, and digital media.
DHS/CBP may retrieve records by any of the data elements supplied by the applicant or representative.
The retention of ESTA records is covered by National Archives and Records Administration DAA-0568-2019-0006. Application information submitted to ESTA, including the photographs, is retained for 15 years. DHS/CBP ingests ESTA application data into other DHS/CBP systems for vetting purposes and is stored in accordance with those system's respective retention periods. For example, ESTA information is ingested into the Automated Targeting System (ATS) and is retained for 15 years and is also ingested into TECS where it is retained for 75 years, consistent with those systems' retention schedules. These retention periods are based on DHS/CBP's historical encounters with suspected terrorists and other criminals, as well as the broader expertise of the law enforcement and intelligence communities. It is well known, for example, that potential terrorists may make multiple visits to the United States in advance of performing an attack. It is over the course of time and multiple visits that a potential risk becomes clear. Travel records, including historical records, are essential in assisting DHS/CBP officers with their risk-based assessment of travel indicators and identifying potential links between known and previously unidentified terrorist facilitators. Analyzing the records for these purposes allows DHS/CBP to continue to effectively identify suspect travel patterns and irregularities. If the record is linked to active law enforcement lookout records, DHS/CBP matches to enforcement activities, and/or investigations or cases (
Payment information is not stored in ESTA but is forwarded to Pay.gov and stored in DHS/CBP's financial processing system, Credit/Debit Card Data system, pursuant to the DHS/CBP-003 Credit/Debit Card Data System of Records Notice, 76 FR 67755 (November 2, 2011). When a VWP traveler's ESTA data is used for purposes of processing his or her application for admission to the United States, the ESTA data will be used to create a corresponding admission record in the DHS/CBP-016 Non-Immigrant Information System (NIIS), 80 FR 13398 (March 13, 2015). This corresponding admission record will be retained in accordance with the NIIS retention schedule, which is 75 years.
DHS/CBP safeguards records in this system according to applicable rules and policies, including all applicable DHS automated systems security and access policies. DHS/CBP has imposed strict controls to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
Applicants may access their ESTA information to view and amend their applications by providing their ESTA number, birth date, and passport number. Once they have provided their ESTA number, birth date, and passport number, applicants may view their ESTA status (authorized to travel, not authorized to travel, pending) and submit limited updates to their travel itinerary information. If an applicant does not know his or her application number, he or she can provide his or her name, passport number, date of birth, and passport issuing country to retrieve his or her application number.
In addition, ESTA applicants and other individuals whose information is included on ESTA applications may submit requests and receive information maintained in this system as it relates to data submitted by or on behalf of a person who travels to the United States and crosses the border, as well as, for ESTA applicants, the resulting determination (authorized to travel, pending, or not authorized to travel). However, the Secretary of Homeland Security has exempted portions of this system from certain provisions of the Privacy Act related to providing the accounting of disclosures to individuals because it is a law enforcement system. DHS/CBP will, however, consider individual requests to determine whether information may be released. In processing requests for access to information in this system, DHS/CBP will review the records in the operational system and coordinate with DHS to ensure that records that were replicated on the unclassified and classified networks, are reviewed, and based on this notice provide appropriate access to the information.
Individuals seeking access to and notification of any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Chief Privacy Officer and Headquarters Freedom of Information Act (FOIA) Officer whose contact information can be found at
When an individual is seeking records about himself or herself from this system of records or any other Departmental system of records, the individual's request must conform with the Privacy Act regulations set forth in 6 CFR part 5. The individual must first verify his/her identity, meaning that the
• Explain why he or she believes the Department would have information being requested;
• Identify which component(s) of the Department he or she believes may have the information;
• Specify when the individual believes the records would have been created; and
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records.
If the request is seeking records pertaining to another living individual, the request must include an authorization from the individual whose record is being requested, authorizing the release to the requester.
Without the above information, the component(s) may not be able to conduct an effective search, and the individual's request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Record Access Procedures” above.
See “Record Access Procedures” above.
Pursuant to 6 CFR part 5, Appendix C, when this system receives a record from another system exempted in that source system under 5 U.S.C. 552a(j) or (k), DHS will claim the same exemptions for those records that are claimed for the original primary systems of records from which they originated and claims any additional exemptions set forth here. For instance, as part of the vetting process, this system may incorporate records from CBP's ATS, and all of the exemptions for CBP's Automated Targeting System SORN, described and referenced herein, carry forward and will be claimed by DHS/CBP. As such, law enforcement and other derogatory information covered in this system are exempt from 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I), (e)(5), and (8); (f); and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, pursuant to 5 U.S.C. 552a(k)(1) and (k)(2): 5 U.S.C. 552a(c)(3); (d)(1), (d)(2), (d)(3), and (d)(4); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f).
DHS/CBP is not taking any exemption from subsection (d) with respect to information maintained in the system as it relates to data submitted by or on behalf of a person, as part of the application process, who travels to visit the United States and crosses the border, nor shall an exemption be asserted with respect to the resulting determination (authorized to travel, pending, or not authorized to travel). However, pursuant to 5 U.S.C. 552a(j)(2), DHS/CBP plans to exempt such information in this system from sections (c)(3), (e)(8), and (g) of the Privacy Act of 1974, as amended, as is necessary and appropriate to protect this information. Further, DHS will claim exemption from section (c)(3) of the Privacy Act of 1974, as amended, pursuant to 5 U.S.C. 552a(k)(2) as is necessary and appropriate to protect this information. CBP will not disclose the fact that a law enforcement or intelligence agency has sought particular records because it may affect ongoing law enforcement activities.
84 FR 30746 (June 27, 2019); 81 FR 60713 (September 2, 2016); 81 FR 39680 (June 17, 2016); 81 FR 8979 (February 23, 2016); 79 FR 65414 (November 4, 2014); 77 FR 44642 (July 30, 2012); 76 FR 67751 (November 2, 2011); 73 FR 32720 (June 10, 2008).
Privacy Office, DHS.
Committee management; notice of committee charter renewal.
The Secretary of Homeland Security has determined that the renewal of the Data Privacy and Integrity Advisory Committee is necessary and in the public interest in connection with the Department of Homeland Security's performance of its duties. This determination follows consultation with the Committee Management Secretariat, General Services Administration.
The committee's charter is effective July 8, 2020 and expires July 8, 2022.
Any Comments must be identified by DHS Docket Number (DHS-2022-0040) and may be submitted by
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Sandra L. Taylor, Designated Federal Officer, DHS Data Privacy and Integrity Advisory Committee, Department of Homeland Security, Privacy Office, Mail Stop 0655, 2707 Martin Luther King Jr. Ave SE, Washington, DC 20598-0655, by telephone (202) 343-1717, by fax (202) 343-4010, or by email to
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Development (HUD).
Notice of Housing Counseling federal advisory committee public meeting.
This gives notice of a Housing Counseling Federal Advisory Committee (HCFAC) meeting and sets forth the proposed agenda. The HCFAC meeting will be held on Monday, August 8, 2022. The meeting is open to the public and is accessible to individuals with disabilities.
The virtual meeting will be held on Monday, August 8, 2022, starting at 1:00 p.m. Eastern Daylight Time (EDT) via teleconference.
Virginia F. Holman, Housing Program Specialist, Office of Housing Counseling, U.S. Department of Housing and Urban Development, 600 East Broad Street, Richmond VA 23219; telephone number 540-894-7790 (this is not a toll-free number); email
HUD is convening the virtual meeting of the HCFAC on Monday, August 8, 2022, from 1:00 p.m. to 4:00 p.m. EDT. The meeting will be held via teleconference. This meeting notice is provided in accordance with the Federal Advisory Committee Act, 5. U.S.C. app. 10(a)(2).
The public is invited to attend this one-day virtual meeting. Advance registration is required to attend. To register, please visit:
After submitting the registration form above, you will receive registration confirmation with the meeting link and passcode needed to attend. Individuals with speech or hearing impairments may follow the discussion by first calling the toll-free Federal Relay Service (FRS): (800) 977-8339 and providing the FRS operator with the conference call number that will be provided in the registration confirmation.
With advance registration, members of the public will have an opportunity to provide oral and written comments relative to agenda topics for the HCFAC's consideration. To provide oral comments, please indicate your desire to do so in your registration form no later than August 2, 2022. Your registration confirmation will also confirm that you are approved to speak. The available time for public comments will be limited to ensure pertinent HCFAC business is completed. Further, the amount of time allotted to each person will be limited to two minutes and will be allocated on a first-come first-served basis by HUD. Written comments can be provided on the registration form no later than August 2, 2022. Please note, written comments submitted will not be read during the meeting. The HCFAC will not respond to individual written or oral statements; but it will take all public comments into account in its deliberations.
Records and documents discussed during the meeting as well as other information about the work of the HCFAC, will be available for public viewing as they become available at:
Information on the Committee is also available on
Office of the Assistant Secretary for Public and Indian Housing, PIH, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Dawn Smith, Office of Policy, Programs and Legislative Initiatives, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; telephone 202-708-3000, extension 3374 (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number). Copies of available documents submitted to OMB may be obtained from Ms. Smith.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This third-party financing of energy consumption measures is termed an Energy Performance Contract (EPC). A PHA uses a loan from a third-party to finance initial improvements in PHA infrastructure that will reduce a PHA's energy and/or water consumption through implementation of ECMs and/or renewable energy. HUD will continue to provide the PHA operating subsidy based on a PHA's energy consumption before the improvements were made. The PHA will then use the energy savings to pay for the debt service on the loan.
There are three energy consumption incentives that are available to a PHA:
1. The Frozen Rolling Base (24 CFR 990.185(a)(1))—where HUD freezes the PHA's pre-EPC Rolling Base Consumption Level (RBCL) following the installation of ECMs so that the PHA can retain the savings from the decreased energy and/or water consumption for the term of the contract.
2. The Add-on Subsidy—an Additional Operating Subsidy (or “add-on”) is an increase in total operating subsidy eligibility provided by HUD as a conservation incentive, as described in 24 CFR 990.185(a)(3). The additional subsidy is for amortization of the loan of the EPC and other direct costs related to the conservation project during the term of the contract.
3. The Resident-Paid Utility incentive (24 CFR 990.185(a)(2)). PHAs undertaking energy and/or water conservation measures that are financed by an entity other than HUD may include resident-paid utilities under the consumption reduction incentive. This incentive provides for PHAs to review and update all utility allowances to ascertain that residents are receiving the proper allowances before energy savings measures are begun; the PHA makes future calculations of rental income for purposes of the calculation of operating subsidy eligibility based on these baseline allowances. In effect, HUD will freeze the baseline allowances for the duration of the contract. This approach allows a PHA to exclude from its Operating Fund rental income calculations any rents received that are a result of decreased utility allowances resulting from decreased consumption.
In addition to consumption incentives, PHAs are also eligible for a Rate Reduction Incentive. 24 CFR 990.185(b) also allows PHAs to retain 50% of any savings attributable to taking specific actions to reduce the cost of their energy consumption, such as well-head purchase of natural gas, administrative appeals, or contract negotiation with a utility company. RRIs executed at the same time as an EPC are eligible to retain up to 100 percent of the savings (rather than 50 percent of the savings with the RRI alone) during the EPC repayment period when the EPC and RRI impact the same AMP and utility.
The lower rate cannot be a result of factors that do not require the PHA to take an action and/or are beyond a PHA's control including, but not limited to, market changes, legislative changes, rate changes for all customers, or consuming energy at a different time of day. Applicants for an EPC program submit the following documents at the time of submission:
• A letter applying for an EPC incentive, identifying the project location, any PHA units that would fall under the EPC contract, the type of incentive that a PHA is applying for and whether the project will be managed by the PHA, or using an Energy Services Company (ESCO) to manage the EPC on their behalf;
• Completed Investment Grade Energy Audit to the ASHRAE (American Society of Heating, Refrigerating and Air-Conditioning Engineers) standard that supports the proposal;
• The Request for Proposals (RFP) used to solicit proposals from third-party lenders or ESCOs;
• A Cost Summary Sheet showing ECMs by project, funding type and Measurement and Verification (M&V) type;
• Detailed Utility Baseline Data summary sheet showing the RBCL and any adjustments to the data;
• Copies of the HUD 52722 and 52723 forms
• Copy of the most recent HUD 52722 and 52723 forms by AMP; and
• A detailed Cash Flow Summary, showing:
○ That the energy savings are sufficient to cover the project costs including replacement costs;
○ That 75% of the annual energy savings are utilized for payment of the debt for the contract; and
○ Any Bureau of Labor and Statistics historical documentation supporting any utility rate escalations.
Applicants for Resident Paid Utility Allowances submit the following:
• Copies of existing utility allowances with supportive documentation;
• Copies of the Pre-EPC utility allowances with supportive documentation;
• Copies of projected post-EPC utility allowances will be with supportive documentation;
• A copy of the Energy Services Agreement contract between the PHA and their third-party lender/ESCO Energy Services Agreement (ESA);
• A certification that the PHA has performed a cost analysis per 2 CFR part 200, and that the costs associated with the EPC are reasonable;
• A repayment certification that the PHA will pay for any debt using cost savings from implementing ECMs; and
• A letter from the PHA's legal counsel that states that the ESA complies with State and Local laws and that the legal interests of the Authority are fairly represented in the ESA.
Applications for the Rate Reduction Incentive (RRI) must include the following information:
• PHA Name and PHA code;
• Asset Management Project (AMP) number for each AMP included in the proposed RRI;
• A brief description of the action the PHA undertook to reduce the utility rate and supporting documentation;
• An explanation of how the PHA will calculate savings and anticipated savings; and
• Identification of the incentive the PHA will claim, whether it is 50 percent or 100 percent of the actual savings.
HUD uses collected information to determine whether applications meet eligibility requirements and application submission requirements. Applicants provide information about the proposed contract to enable HUD to evaluate the applicant's response to the criteria for rating the application and approving or disproving the contract.
Annual EPC Measurement and Verification and savings calculation information collected allows HUD to audit program performance accurately. The quality of reported data is critical for ensuring an accurate distribution of the Operating Fund subsidy appropriation. The information collected will allow HUD to accurately audit the program. For the EPC program, Measurement and Verification data will be submitted by the PHA annually in a format of their choice. The report must contain the actual usage amount of each utility under the EPC, the actual unit of measure, the consumption savings, and the cost savings. The PHAs will also be required to submit their consumption data using a standardized Excel Spreadsheet through the Operating Fund Web Portal, the Energy Savings Calculator. This Calculator is used to ensure the accuracy of the EPC incentives being claimed by the PHA in their annual Operating Subsidy submission.
For the RRI program, PHAs must annually submit documentation on energy cost savings attributed to the reduction in the rate. This data is submitted on an Asset Management Project (AMP basis). For the RRI program, PHAs will submit their data via email using the format of their choice.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A regarding the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, Office of Policy Development and Research (PD&R), Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Colette Pollard, Reports Management Officer, PD&R, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD is seeking approval from OMB for the
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
August 2, 2022, ET.
Via Zoom.
Meeting of the Advisory Council, open to the public.
Nicole Stinson, Associate General Counsel, (202) 683-7117.
The Inter-American Foundation is holding this meeting under the Government in the Sunshine Act, 5 U.S.C. 552(b).
July 26, 2022, 9 a.m.-12:30 p.m. ET.
Inter-American Foundation Office, 1331 Pennsylvania Ave. NW, Suite 1200 North, Washington, DC 20004.
Meeting of the IAF Board of Directors, open to the public, portion closed to the public.
Nicole Stinson, Associate General Counsel, (202) 683-7117.
The Inter-American Foundation is holding this meeting under the Government in the Sunshine Act, 5 U.S.C. 552(b).
U.S. Geological Survey, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act (PRA), the U.S. Geological Survey (USGS) is proposing to renew an information collection.
Interested persons are invited to submit comments on or before September 12, 2022.
Send your comments on this information collection request (ICR) by mail to U.S. Geological Survey, Information Collections Officer, 12201 Sunrise Valley Drive, MS 159, Reston, VA 20192; or by email to
To request additional information about this ICR, contact the Water Resources Research Act Program Manager by email at
In accordance with the PRA, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) is the collection necessary to the proper functions of the USGS; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the USGS enhance the quality, utility, and clarity of the information to be collected; and (5) how might the USGS minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personally identifiable information (PII) in your comment, you should be aware that your entire comment—including your PII—may be made publicly available at any time. While you can ask us in your comment to withhold your PII from public review, we cannot guarantee that we will be able to do so.
Annual base grants may support research and information transfer projects as well as administration projects that advance the institutes' overall administration and objectives; these research projects are generally selected in a competitive statewide solicitation, peer review, and selection process designed and conducted by each institute. National competitive grants (104g) focus on water problems and issues of a regional or interstate nature beyond those of concern only to a single state and which relate to specific program priorities identified jointly by the Secretary (of the Interior, as delegated to the USGS) and the institutes.
The State Water Resources Research Institutes were established under Section 104(a) of the Act [42 U.S.C. 10303(a)]. There are 54 Water Resources Research Institutes, one in each state, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, and Guam. The Institutes cooperate with the USGS in establishing total programmatic direction, reporting on the activities of the institutes and associated researchers, as well as coordinating and facilitating regional research and information and technology transfer.
An agency may not conduct or sponsor, nor is a person required to respond to, a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bureau of Indian Affairs, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Bureau of Indian Affairs (BIA), are proposing to reinstate a previously approved information collection.
Interested persons are invited to submit comments on or before September 12, 2022.
Send your comments on this information collection request (ICR) by mail to Steven Mullen, Information Collection Clearance Officer, Office of Regulatory Affairs and Collaborative Action—Indian Affairs, U.S. Department of the Interior, 1001 Indian School Road NW, Suite 229, Albuquerque, New Mexico 87104; or by email to
Jeanette Hanna, Deputy Bureau Director, Indian Services, BIA by email at
In accordance with the Paperwork Reduction Act of 1995 (PRA, 44 U.S.C. 3501
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
National Park Service, Interior.
Notice of intent to assess Valles Caldera National Preserve lands for wilderness eligibility.
Pursuant to the Wilderness Act of 1964, and in accordance with National Park Service (NPS) Management Policies (2006), Section 6.2.1, the NPS has initiated an assessment of lands within the authorized boundary of Valles Caldera National Preserve for their eligibility for inclusion in the national wilderness preservation system.
The eligibility assessment will be formally initiated on July 12, 2022.
A map of lands to be assessed is on file at Valles Caldera National Preserve Headquarters, 90 Villa Louis Martin, Jemez Springs, NM 87025.
Information about the wilderness character of these lands, and requests for information about the eligibility assessment process, should be directed to: Brian Smith, Valles Caldera National Preserve, Environmental Protection Specialist, 575-829-4100,
NPS Management Policies (2006) Section 6.2.1 requires that “All lands administered by the National Park Service, including new units or additions to existing units since 1964, will be evaluated for their eligibility for inclusion in the national wilderness preservation system.” The lands to be assessed at Valles Caldera National Preserve include approximately 88,900 acres designated to be managed by the National Park Service since 2014 by Section 3043 of Public Law 113-291 (December 19, 2014).
Section 6.2.1.1 and 6.2.1.2 of NPS Management Policies (2006) describe the primary eligibility criteria and additional considerations in determining eligibility that will be used during the assessment process. Pursuant to Section 6.2.1.3 of NPS Management Policies (2006), the determination of an area's eligibility, or ineligibility, for further study will be approved by the Director before publication of the final eligibility determination in the
For areas determined to be ineligible for wilderness designation, the wilderness preservation provisions in the NPS Management Policies (2006) would not apply (NPS Management Policies (2006) Section 6.2.1.3). However, ineligible lands will continue to be managed in accordance with the NPS Organic Act and all other laws, executive orders, regulations, and policies applicable to units of the national park system.
Lands and waters found to possess the characteristics and values of wilderness, as defined in the Wilderness Act and determined eligible pursuant to the wilderness eligibility assessment, will be formally studied to develop the recommendation to Congress for wilderness designation (NPS Management Policies (2006), Section 6.2.2). The wilderness study will be supported by appropriate documentation of compliance with the
National Park Service, Interior.
Notice.
The Peabody Museum of Natural History (hereafter the Yale Peabody Museum), has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian Tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice who wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Yale Peabody Museum. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice who wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Yale Peabody Museum at the address in this notice by August 11, 2022.
Professor David Skelly, Director, Yale Peabody Museum of Natural History, P.O. Box 208118, New Haven, CT 06520-8118, telephone (203) 432-3752.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Peabody Museum of Natural History, Yale University, New Haven, CT. The human remains and associated funerary objects were removed from Warren County, MS.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Yale Peabody Museum professional staff in consultation with representatives of the Alabama-Coushatta Tribe of Texas (
Sometime prior to 1869, human remains representing, at minimum, one individual were removed by George W. Gould from a mound near Warrenton in Warren County, MS. They were donated to the Yale Peabody Museum in 1869. The human remains belong to an adult of undetermined sex. No known individual was identified. The 81 associated funerary objects are 10 celts and chisels, two adzes, three chunkey stones, one hammerstone, 30 projectile points, five potsherds, 18 shark teeth, four pebbles, two ornamental disk fragments, and six ceramic vessels.
Historical, geographical, and archeological documentation demonstrate that the area of Warrenton was home to the Plaquemine cultures who were indigenous to the Natchez Bluffs region of Mississippi circa. A.D. 1000-1600. Excavation records and catalog documentation demonstrate that the human remains and cultural items were known to be Native American at the time of their removal and subsequent donation; archeological evidence demonstrates a likely connection between these items and those found at various recorded Plaquemine cultural period sites; and the associated funerary objects—specifically the whole vessels—are consistent with the stylistic features of Late Plaquemine vessels found at the Glass Site (22Wr502), a neighboring mound complex located approximately five miles east of Warrenton. Based on parameters previously determined by the Mississippi Department of Archives and History and The Tribes, a relationship of shared group identity can be established between The Tribes and the earlier group to which the human remains and associated objects belong.
Officials of the Peabody Museum of Natural History, Yale University have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 81 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and The Tribes.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice who wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Professor David Skelly, Director, Yale Peabody Museum of Natural History, P.O. Box 208118, New Haven, CT 06520-8118, telephone (203) 432-3752, by August 11, 2022. After that date, if no additional requestors have come forward, transfer of control of the human remains and associated funerary objects to The Tribes may proceed.
The Peabody Museum of Natural History, Yale University is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Michigan State Police (MSP) have completed an inventory of human remains, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations and has determined that there is no cultural affiliation between the human and any present-day Indian Tribes or Native Hawaiian organizations. Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the Michigan State Police. If no additional requestors come forward, transfer of control of the human remains to the Indian Tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the Michigan State Police at the address in this notice by August 11, 2022.
Hanna Friedlander, Human Remains Analyst, Michigan State Police, Intelligence Operations Division—Missing Persons Coordinator Unit, 7150 Harris Drive, Lansing, MI 48821, telephone (517) 242-5731, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the Michigan State Police, Lansing, MI. The human remains were removed from the City of Caro in Tuscola County, MI.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Michigan State Police (MSP) professional staff in consultation with representatives of the Saginaw Chippewa Indian Tribe of Michigan.
On April 9, 2021, human remains representing, at minimum, one individual were removed from the City of Caro, Tuscola County, MI. As the human remains were extremely fragmentary, osteobiographical information for this individual was indeterminate. The human remains (known as MPC-7-21) were sent for radiocarbon dating to DirectAMS, who provided a date ranging between A.D. 993 and 1031. On November 1, 2021, the human remains were returned to the MSP. No known individual was identified. No associated funerary objects are present.
Officials of the Michigan State Police have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on radiocarbon dating.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian Tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of the Bay Mills Indian Community, Michigan; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Hannahville Indian Community, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Veux Desert Band of Lake Superior Chippewa Indians of Michigan; Little River Band of Ottawa Indians, Michigan; Little Traverse Bay Bands of Odawa Indians, Michigan; Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Nottawaseppi Huron Band of the Potawatomi, Michigan (
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of The Tribes.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to The Tribes.
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Hanna Friedlander, Human Remains Analyst, Michigan State Police, Intelligence Operations Division—Missing Persons Coordinator Unit, 7150 Harris Drive, Lansing, MI 48821, telephone (517) 242-5731, email
The Michigan State Police are responsible for notifying The Tribes; Burt Lake Band of Ottawa and Chippewa Indians; and the Grand River Band of Ottawa Indians that this notice has been published.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission (the “Commission”) has determined to review in part the final initial determination (“ID”) issued by the presiding administrative law judge (“ALJ”) on April 1, 2022. On review, the Commission has determined to take no position on certain non-dispositive issues. The Commission has determined not to review, and thereby adopts, the remaining findings in the ID. The Commission further determines to affirm the ID's finding of no violation with respect to each of the subject patents. This investigation is hereby terminated.
Carl P. Bretscher, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2382. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket system (“EDIS”) at
The Commission instituted the present investigation on January 27, 2021, based on a complaint, as supplemented, filed by Koninklijke Philips N.V. of Eindhoven, Netherlands and Philips RS North America LLC (f/k/a Respironics, Inc.) of Pittsburgh, Pennsylvania. 86 FR 7305-06 (Jan. 27, 2021). The complaint alleges a violation of section 337 of the Tariff Act, as amended, 19 U.S.C. 1337, based on the importation, sale for importation, or sale in the United States after importation of certain UMTS and LTE cellular communication modules and products containing the same by reason of infringement of certain claims of U.S. Patent Nos. 7,831,271; 8,199,711; 7,554,943; and 7,944,935.
The Commission's notice of investigation names the following respondents: Thales DIS AIS USA, LLC of Bellevue, Washington; Thales DIS AIS Deutschland GmbH, Bayern, Germany (collectively, “Thales”); Thales USA, Inc., Arlington, Virginia; Thales S.A., Paris, France; Telit Wireless Solutions, Inc. of Durham, North Carolina; Telit Communications PLC, London, United Kingdom; Quectel Wireless Solutions Co., Ltd., Shanghai, China; CalAmp Corp. of Irvine, California; Xirgo Technologies, LLC of Camarillo, California; Laird Connectivity, Inc. of Akron, Ohio (all collectively, “Respondents”).
The presiding ALJ held an evidentiary hearing from October 8-13, 2021. The parties filed their opening post-hearing briefs on October 29, 2021, and their post-hearing reply briefs on November 15, 2021.
On April 1, 2022, the presiding ALJ issued the final ID at issue finding no violation of Section 337 with respect to each of the four asserted patents. In summary, the final ID finds that Philips failed to prove that any of the asserted claims of the four asserted patents is infringed, directly or indirectly, by any of the Respondents. The ID further finds that Philips failed to prove that it satisfied the technical prong of the domestic industry requirement with respect to any of the four asserted patents. The ID further finds that asserted claim 9 of the '711 patent is invalid as indefinite and asserted claims 9 and 12 are invalid as obvious. The ID further finds that asserted claims 1-8 of the '271 patent are invalid as indefinite and for lack of sufficient written description. The ID finds that claim 12 of the '943 patent is invalid as indefinite. The ID further finds that all four patents are unenforceable under a doctrine of implied waiver, but it rejects Respondents' proposed defenses of express and implied licenses and equitable estoppel.
On April 13, 2022, Philips filed a petition for review of certain no-violation findings in the final ID. On April 15, 2022, Thales filed a contingent petition to review certain findings in the final ID.
On April 15, 2022, the presiding ALJ issued a recommended determination on remedy and bonding.
On April 21, 2022, OUII filed a combined response opposing both parties' petitions for review. On April 21, 2022, Respondents filed their opposition to Philips' petition for review. On April 25, 2022, Philips filed its opposition to Thales' contingent petition for review.
On May 16, 2022, Philips and Thales filed public interest statements pursuant to Commission Rule 210.50(a)(4) (19 CFR 210.50(a)(4)). The Commission also received public interest statements from a number of third parties as well as from interested individuals in response to the post-RD
Upon review of the subject ID, the parties' petitions, and responses thereto, the Commission has determined to review and, on review, take no position on the following issues: (1) the ID's construction and application of the claim terms “queue,” “queue store,” and “means for transmitting the group” in the '935 patent: (2) the ID's finding that claims 9 and 12 of the '711 patent are invalid as obvious; (3) the ID's finding on domestic industry for the '271 patent, to the extent it might be interpreted to suggest that “each and every” asserted domestic industry product must be shown to practice a claim of an asserted patent to satisfy the technical prong of the domestic industry requirement (
The Commission has determined not to review, and thus adopts, the remaining findings in the ID, including that: (1) the asserted claims of the '935 patent, the '711 patent, the '943 patent, and the '271 patent are not infringed; (2) Philips did not satisfy the technical prong of the domestic industry requirement with respect to any of the four asserted patents; (3) claim 9 of the '711 patent and claim 12 of the '943 patent are invalid as indefinite; and (4) the asserted claims of the '271 patent are invalid as indefinite and for lack of written description. Recognizing the Commission has determined not to review the ID's finding that Philips did not satisfy the technical prong of the domestic industry requirement with respect to any of the four asserted patents, Commissioner Schmidtlein would otherwise affirm the ID's analysis concerning whether the asserted economic prong investments were significant under 19 U.S.C. 1337(a)(3)(A) and (B).
The Commission thus affirms the final ID's finding of no violation of Section 337 with respect to each of the four asserted patents. This investigation is hereby terminated.
The Commission voted to approve this determination on July 6, 2022.
The authority for the Commission's determinations is contained in Section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
On April 15, 2022, the Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to Donald J. Murphy, M.D. (hereinafter, Registrant). OSC, at 1 and 3. The OSC proposed the revocation of Registrant's Certificate of Registration No. AM2605561 at the registered address of 5920 McIntyre St., Golden, Colorado, 80403.
The Agency makes the following findings of fact based on the uncontroverted evidence submitted by the Government in its Request for Final Agency Action (RFAA) submitted June 23, 2022.
On September 23, 2021, the Colorado Medical Board issued an Order suspending Registrant's license to practice medicine in the State of Colorado. RFAAX C (Order of Summary Suspension), at 3. According to Colorado's online records, of which the Agency takes official notice, Registrant's license is still suspended.
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the Controlled Substances Act (hereinafter, CSA) “upon a finding that the registrant . . . has had his State license or registration suspended . . . [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” With respect to a practitioner, the DEA has also long held that the possession of authority to dispense controlled substances under the laws of the state in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner's registration.
According to Colorado statute, “[e]very person who manufactures, distributes, or dispenses any controlled substance within this state . . . shall obtain . . . a registration, issued by the respective licensing board . . . . For purposes of this section and this article [ ], `registration' or `registered' means . . . the licensing of physicians by the Colorado medical board . . . .” Colo. Rev. Stat. § 18-18-302(1) (2022). Here, the undisputed evidence in the record is that Registrant's Colorado medical license was suspended by the Colorado Medical Board. As such, Registrant is not authorized to dispense controlled substances in Colorado and thus is not eligible to maintain a DEA registration. Accordingly, the Agency will order that Registrant's DEA registration be revoked.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. AM2605561 issued to Donald J. Murphy, M.D. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby deny any pending applications of Donald J. Murphy, M.D. to renew or modify this registration, as well as any other pending application of Donald J. Murphy, M.D. for additional registration in Colorado. This Order is effective August 11, 2022.
This document of the Drug Enforcement Administration was signed on July 6, 2022, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the
On June 7, 2021, the Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to Alphonsus Okoli, M.D. (hereinafter, Registrant). OSC, at 1 and 4. The OSC proposed the revocation of Registrant's Certificate of Registration No. BO4917780 at the registered address of 7525 Greenway Center Drive, Suite 110, Greenbelt, Maryland 20770.
The Agency makes the following findings of fact based on the uncontroverted evidence submitted by the Government in its Request for Final Agency Action (RFAA).
On March 23, 2021,
According to Maryland's online records, of which the Agency takes official notice, Registrant's Maryland CDS license is still revoked.
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the Controlled Substances Act (hereinafter, CSA) “upon a finding that the registrant . . . has had his State license or registration suspended . . . [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” With respect to a practitioner, the DEA has also long held that the possession of authority to dispense controlled substances under the laws of the state in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner's registration.
According to Maryland statute, “a person shall be registered by the Department before the person manufactures, distributes, or dispenses a controlled dangerous substance in the State or transports a controlled dangerous substance into the State.” Md. Code. Ann., Crim. Law § 5-301(a)(1) (West 2022). Maryland law further defines “dispense” to mean “to deliver to the ultimate user or the human research subject by or in accordance with the lawful order of an authorized provider” and states that the term includes “to prescribe, administer, package, label, or compound a substance for delivery.”
Here, the undisputed evidence in the record is that Registrant's CDS license was revoked. As already discussed, a practitioner must hold a valid controlled substance license to dispense a controlled substance in Maryland.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. BO4917780 issued to Alphonsus Okoli, M.D. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby deny any pending applications of Alphonsus Okoli, M.D. to renew or modify this registration, as well as any other pending application of Alphonsus Okoli, M.D. for additional registration in Maryland. This Order is effective August 11, 2022.
This document of the Drug Enforcement Administration was signed on July 6, 2022, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the
On April 4, 2022, the Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to Bhanoo Sharma, M.D. (hereinafter, Respondent). OSC, at 1 and 3. The OSC proposed the revocation of Respondent's Certificate of Registration No. FS3031034 at the registered address of 17577 Kedzie Avenue, Suite 108, Hazel Crest, Illinois 60429.
By letter dated May 4, 2022, Respondent requested a hearing. On May 4, 2022, Chief Administrative Law Judge John J. Mulrooney, II (hereinafter, the Chief ALJ) issued an Order Directing the Filing of Government Evidence Regarding Its Lack of State Authority Allegation and Briefing Schedule. On May 11, 2022, the Government filed its Submission of Evidence and Motion for Summary Disposition (hereinafter, Motion for Summary Disposition). On May 20, 2022, Respondent filed his Reply in Opposition to the Government's Motion for Summary Disposition (hereinafter, Respondent's Reply).
On June 1, 2022, the Chief ALJ granted the Government's Motion for Summary Disposition and recommended the revocation of Respondent's DEA registration, finding that because Respondent lacks state authority to handle controlled substances, “there is no other fact of consequence for [the] tribunal to decide in order to determine whether or not [Respondent] is entitled to hold a [DEA registration].” Order Granting the Government's Motion for Summary Disposition, and Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision of the Administrative Law Judge (hereinafter, Recommended Decision or RD), at 6.
The Agency issues this Decision and Order based on the entire record before it, 21 CFR 1301.43(e), and makes the following findings of fact.
On February 19, 2021, the Illinois Department of Financial and Professional Regulation issued an Order suspending Respondent's Illinois medical license. Government Exhibit 3, at 1-2. According to Illinois online records, of which the Agency takes official notice, Respondent's state medical license is still suspended.
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the Controlled Substances Act (hereinafter, CSA) “upon a finding that the registrant . . . has had his State license or registration suspended . . . [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” With respect to a practitioner, the DEA has also long held that the possession of authority to dispense controlled substances under the laws of the state in which a practitioner engages in professional practice is a fundamental condition
Moreover, because “the controlling question” in a proceeding brought under 21 U.S.C. 824(a)(3) is whether the holder of a practitioner's registration “is currently authorized to handle controlled substances in the [S]tate,”
Further, it is of no consequence the specific manner in which Respondent's state authority was lost.
Pursuant to the Illinois Controlled Substances Act, a “practitioner” means “a physician licensed to practice medicine in all its branches . . . or other person licensed, registered, or otherwise lawfully permitted by the United States or this State to distribute, dispense, conduct research with respect to, administer or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research.” 720 Ill. Comp. Stat. Ann. 570/102(kk) (West 2022). Further, the Illinois Controlled Substances Act requires that “[e]very person who manufactures, distributes, or dispenses any controlled substances . . . must obtain a registration issued by the Department of Financial and Professional Regulation in accordance with its rules.”
Here, the undisputed evidence in the record is that Respondent currently lacks authority to handle controlled substances in Illinois as his Illinois medical license is suspended and his Illinois controlled substance license is inoperative. As already discussed, a practitioner must hold a valid controlled substance license to dispense a controlled substance in Illinois. Thus, Respondent is not eligible to maintain a DEA registration in Illinois. Accordingly, the Agency will order that Respondent's DEA registration be revoked.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. FS3031034 issued to Bhanoo Sharma, M.D. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby deny any pending applications of Bhanoo Sharma, M.D. to renew or modify this registration, as well as any other pending application of Bhanoo Sharma, M.D. for additional registration in Illinois. This Order is effective August 11, 2022.
This document of the Drug Enforcement Administration was signed on July 6, 2022, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the
Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division.
30 Day notice.
The Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, is submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
The Department of Justice encourages public comment and will accept input until August 11, 2022.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Gerry Lynn Brovey, Supervisory Information Liaison Specialist, FBI, CJIS, Resources Management Section, Administrative Unit, Module C-2, 1000 Custer Hollow Road, Clarksburg, West Virginia, 26306; phone: 304-625-4320 or email
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the [Component or Office name], including whether the information will have practical utility;
Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
Evaluate whether and if so how the quality, utility, and clarity of the information to be collected can be enhanced; and
Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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If additional information is required contact: Robert Houser, Assistant Director, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, Suite 3E.405B, Washington, DC 20530.
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed Consent Decree in
This proposed Consent Decree concerns a complaint filed by the United States against Defendant Trager Limestone LLC, pursuant to Sections 309(b), (d), and 311(b) of the Clean Water Act, 33 U.S.C. 1319(b), (d), and 1321(b), to obtain injunctive relief from and impose civil penalties against the Defendant for violating Sections 301(a) and 311(j) of the Clean Water Act, 33 U.S.C. 1311(a) and 1321(j), by discharging pollutants without a permit into waters of the United States, and for failing to meet the requirements of the Environmental Protection Agency's “Spill Prevention, Control, and Countermeasures Plan” regulations. The proposed Consent Decree resolves these allegations by requiring the Defendant to restore the impacted areas, record a conservation easement, and pay a civil penalty.
The Department of Justice will accept written comments relating to this proposed Consent Decree for thirty (30) days from the date of publication of this Notice. Please address comments to Phillip R. Dupré, Department of Justice, Environment and Natural Resources Division, Environmental Defense Section, Post Office Box 7611, Washington, DC 20044,
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the Western District of Missouri, Charles Evans Whittaker United States Courthouse, 400 E 9th Street, Kansas City, MO 64106. In addition, the proposed Consent Decree may be examined
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Occupational Safety & Health Administration (OSHA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before August 11, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Nicole Bouchet by telephone at 202-693-0213, or by email at
States choosing to operate OSHA-approved State plans must provide information to document that their programs are “at least as effective” as the Federal OSHA program. In order to obtain and maintain State Plan approval, a State must submit various documents to OSHA describing its program structure and operation, including any modifications thereto as they occur, in accordance with the identified regulations. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections.
Comments are due by August 11, 2022.
Written comments and recommendations for this information collection should be sent within 30 days of publication of this notice to
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Claire Little, NASA Clearance Officer, NASA Headquarters, 300 E Street SW, JF0000, Washington, DC 20546 or email
This collection of information supports the National Aeronautics and Space Act of 1958, as amended, to enable NASA astronaut appearances before a variety of groups to inform the general public about the U.S. space program. Typically, presentations are made to high schools and universities, community organizations, businesses and associations, or military organizations. In order to reach as many people as possible, NASA offers three options to choose from in requesting an astronaut appearance:
(1) An in person astronaut appearance whereby the astronaut travels to the appearance location.
(2) A virtual appearance utilizing virtual telecommunications tools to connect an astronaut via video conference with your organization.
(3) A recorded greeting arranged in advance to be used during a specified event.
The NASA Astronaut Appearance Office (AAO) located at the Lyndon B. Johnson Space Center (JSC) in Houston, Texas is responsible for vetting, processing, and coordinating logistics for Astronaut appearances. This information will be used by the NASA AAO and Legal and HR personnel in the vetting, coordinating, scheduling and authorization processes to work with requestors to facilitate the appearance logistics. Records of appearances,
Electronic.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, the National Aeronautics and Space Administration announces a meeting of the Science, Technology, Engineering and Mathematics (STEM) Engagement Committee of the NASA Advisory Council (NAC). This Committee reports to the NAC.
Monday, August 1 2022, 2:00 p.m.-6:00 p.m., Eastern Time.
Virtual meeting by dial-in teleconference and WebEx only.
Dr. Tara Strang, NAC STEM Engagement Committee, NASA Headquarters, Washington, DC 20546, (216) 410-4335, or
This meeting will be held virtually and will be available telephonically and by WebEx only. You must use a touch tone phone to participate in this meeting. Any interested person may dial the toll free access number 415-527-5035, and then the access code: 2761 487 1481 followed by the # sign. To join via WebEx, use link:
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
Week of July 11, 2022. The schedule for Commission meetings is subject to change on short notice. The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings or need this meeting notice or the transcript or other information from the public meetings in another format (
Public.
Members of the public may request to receive the information in these notices electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555, at 301-415-1969, or by email at
For more information or to verify the status of meetings, contact Wesley Held at 301-287-3591 or via email at
The NRC is holding the meeting under the authority of the Government in the Sunshine Act, 5 U.S.C. 552b.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
License amendment request; notice of opportunity to comment, request a hearing, and petition for leave to intervene; order imposing procedures.
The U.S. Nuclear Regulatory Commission (NRC) received and is considering approval of two amendment requests. The amendment requests are for Quad Cities Nuclear Power Station, Units 1 and 2; and Edwin I. Hatch Nuclear Plant, Units 1 and 2. For each amendment request, the NRC proposes to determine that they involve no significant hazards consideration (NSHC). Because each amendment request contains sensitive unclassified non-safeguards information (SUNSI), an order imposes procedures to obtain access to SUNSI for contention preparation by persons who file a hearing request or petition for leave to intervene.
Comments must be filed by August 11, 2022. A request for a hearing or petitions for leave to intervene must be filed by September 12, 2022. Any potential party as defined in section 2.4 of title 10 of the
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Rhonda Butler, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-8025, email:
Please refer to Docket ID NRC-2022-0129, facility name, unit number(s), docket number(s), application date, and subject when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Pursuant to Section 189a.(1)-(2) of the Atomic Energy Act of 1954, as amended (the Act), the NRC is publishing this notice. The Act requires the Commission to publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves NSHC, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This notice includes notices of amendments containing SUNSI.
The Commission has made a proposed determination that the following amendment requests involve NSHC. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated, or (2) create the possibility of a new or different kind of accident from any accident previously evaluated, or (3) involve a significant reduction in a margin of safety. The basis for this
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period if circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility. If the Commission takes action prior to the expiration of either the comment period or the notice period, it will publish a notice of issuance in the
Within 60 days after the date of publication of this notice, any persons (petitioners) whose interest may be affected by any of these actions may file a request for a hearing and petition for leave to intervene (petition) with respect to that action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's public website at
As required by 10 CFR 2.309(d) the petition must specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) the name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order that may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions that the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion that support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact—this information must include references to specific portions of the application that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief. Contentions must be limited to matters within the scope of the proceeding and must be material to the findings the NRC must make to support the action that is involved in the proceeding. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of NSHC, the Commission will make a final determination on the issue of NSHC. The final determination will serve to establish when the hearing is held. If the final determination is that the amendment request involves NSHC, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition must be submitted to the Commission no later than 60 days from the date of publication of this notice. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and must meet the requirements for petitions set forth in 10 CFR 2.309, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. Alternatively, a State, local governmental body, Federally recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If a petition is submitted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by
All documents filed in NRC adjudicatory proceedings including documents filed by an interested State, local governmental body, Federally recognized Indian Tribe, or designated agency thereof that requests to participate under 10 CFR 2.315(c), must be filed in accordance with 10 CFR 2.302. The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases, to mail copies on electronic storage media, unless an exemption permitting an alternative filing method, as further discussed, is granted. Detailed guidance on electronic submissions is located in the “Guidance for Electronic Submissions to the NRC” (ADAMS Accession No. ML13031A056) and on the NRC's public website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website at
Participants who believe that they have good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted in accordance with 10 CFR 2.302(b)-(d). Participants filing adjudicatory documents in this manner are responsible for serving their documents on all other participants. Participants granted an exemption under 10 CFR 2.302(g)(2) must still meet the electronic formatting requirement in 10 CFR 2.302(g)(1), unless the participant also seeks and is granted an exemption from 10 CFR 2.302(g)(1).
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket, which is publicly available at
The following table provides the plant name, docket number, date of application, ADAMS accession number, and location in the application of the licensees' proposed NSHC determinations. For further details with respect to these license amendment applications, see the applications for amendment, publicly available portions of which are available for public inspection in ADAMS. For additional direction on accessing information related to these documents, see the “Obtaining Information and Submitting Comments” section of this document.
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing Sensitive Unclassified Non-Safeguards Information (SUNSI).
B. Within 10 days after publication of this notice of hearing or opportunity for hearing, any potential party who believes access to SUNSI is necessary to respond to this notice may request access to SUNSI. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication of this notice will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requestor shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Deputy General Counsel for Licensing, Hearings, and Enforcement, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email addresses for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requestor's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.
D. Based on an evaluation of the information submitted under paragraph C, the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2), the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after receipt of (or access to) that information. However, if more than 25 days remain between the petitioner's receipt of (or access to) the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff after a determination on standing and requisite need, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requestor may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) the presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if this individual is unavailable, another administrative judge, or an Administrative Law Judge with
(3) Further appeals of decisions under this paragraph must be made pursuant to 10 CFR 2.311.
H. Review of Grants of Access. A party other than the requestor may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed within 5 days of the notification by the NRC staff of its grant of access and must be filed with: (a) the presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if this individual is unavailable, another administrative judge, or an Administrative Law Judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another officer has been designated to rule on information access issues, with that officer.
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in
J. 10 CFR part 2. The attachment to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
For the Nuclear Regulatory Commission.
Securities and Exchange Commission (“Commission” or “SEC”).
Notice.
Notice of application for an order (“Order”) under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
The Commission:
Bruce R. MacNeil, Senior Counsel, or Kaitlin C. Bottock, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
For Applicants' representations, legal analysis, and conditions, please refer to Applicants' second amended and restated application, dated June 30, 2022, which may be obtained via the Commission's website by searching for the file number at the top of this document, or for an Applicant using the Company name search field, on the SEC's EDGAR system. The SEC's EDGAR system may be searched at, at
For the Commission, by the Division of Investment Management, under delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 350l-3520), the Securities and Exchange Commission (the “Commission”) is soliciting comments on the collection of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget for extension and approval.
In Canada, as in the United States, individuals can invest a portion of their earnings in tax-deferred retirement savings accounts (“Canadian retirement accounts”). These accounts, which operate in a manner similar to individual retirement accounts in the United States, encourage retirement savings by permitting savings on a tax-deferred basis. Individuals who establish Canadian retirement accounts while living and working in Canada and who later move to the United States (“Canadian-U.S. Participants” or “participants”) often continue to hold their retirement assets in their Canadian retirement accounts rather than prematurely withdrawing (or “cashing out”) those assets, which would result in immediate taxation in Canada.
Once in the United States, however, these participants historically have been unable to manage their Canadian retirement account investments. Most investment companies (“funds”) that are “qualified companies” for Canadian retirement accounts are not registered under the U.S. securities laws. Securities of those unregistered funds, therefore, generally cannot be publicly offered and sold in the United States without violating the registration requirement of the Investment Company Act of 1940 (“Investment Company Act”).
The Commission issued a rulemaking in 2000 that enabled Canadian-U.S. Participants to manage the assets in their Canadian retirement accounts by providing relief from the U.S. registration requirements for offers of securities of foreign issuers to Canadian-U.S. Participants and sales to Canadian retirement accounts.
Rule 7d-2 contains a “collection of information” requirement within the meaning of the Paperwork Reduction Act of 1995.
Rule 7d-2 requires written offering documents for securities offered or sold in reliance on the rule to disclose prominently that the securities are not registered with the Commission and may not be offered or sold in the United States unless registered or exempt from registration under the U.S. securities laws, and also to disclose prominently that the fund that issued the securities is not registered with the Commission. The burden under the rule associated with adding this disclosure to written offering documents is minimal and is non-recurring. The foreign issuer, underwriter, or broker-dealer can redraft an existing prospectus or other written offering material to add this disclosure statement, or may draft a sticker or supplement containing this disclosure to be added to existing offering materials. In either case, based on discussions with representatives of the Canadian fund industry, the staff estimates that it would take an average of 10 minutes per document to draft the requisite disclosure statement.
The staff estimates that there are 4,312 publicly offered Canadian funds that potentially would rely on the rule to offer securities to participants and sell securities to their Canadian retirement accounts without registering under the Investment Company Act.
These burden hour estimates are based upon the Commission staff's experience and discussions with the fund industry. The estimates of average burden hours are made solely for the purposes of the Paperwork Reduction Act. These estimates are not derived from a comprehensive or even a representative survey or study of the costs of Commission rules.
Compliance with the collection of information requirements of the rule is mandatory and is necessary to comply with the requirements of the rule in general. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid control number.
Written comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted by September 12, 2022.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: David Bottom, Acting Director/Chief Information Officer, Securities and Exchange Commission, c/o John Pezzullo, 100 F Street NE, Washington, DC 20549 or send an email to:
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Options Proprietary Market Data Fee Schedule (“Fee Schedule”) to adopt fees for the NYSE Options Open-Close Volume Summary market data product, effective July 11, 2022. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Fee Schedule to adopt fees for the NYSE Options Open-Close Volume Summary,
By way of background, pursuant to the Product Filing, the Exchange adopted two versions of the NYSE Options Open-Close Volume Summary: an End of Day Volume Summary market data product and an Intra-Day Volume Summary market data product. The Exchange initially introduced the End of Day Volume Summary market data product on March 1, 2022 and adopted fees for the End of Day Volume Summary market data product.
The Intra-Day Volume Summary provides a volume summary of trading activity on the Exchange at the option level by origin (Customer, Professional Customer, Firm, Broker-Dealer, and Market Maker
The NYSE Options Open-Close Volume Summary is proprietary Exchange trade data and does not include trade data from any other exchange. It is also a historical data product and not a real-time data feed.
The Exchange anticipates a wide variety of market participants to purchase the Intra-Day Volume Summary data product, including, but not limited to, individual customers, buy-side investors, and investment banks. The Exchange believes the Intra-Day Volume Summary would provide subscribers data that should enhance their ability to analyze options trade and volume data, and to create and test trading models and analytical strategies. The Exchange believes the Intra-Day Volume Summary will be a valuable tool that subscribers can use to gain comprehensive insight into the trading activity in a particular options series. The Intra-Day Volume Summary is a completely voluntary product, in that the Exchange is not required by any rule or regulation to make this data available and that potential subscribers may purchase it only if they voluntarily choose to do so. The Exchange notes that other exchanges offer a similar product.
The Intra-Day Volume Summary is subject to direct competition from similar end of day options trading summaries offered by other options exchanges.
The Exchange proposes to adopt subscription fees for the purchase of the Intra-Day Volume Summary on a monthly basis. The Exchange proposes to assess a fee of $2,000 per month for subscribing to the Intra-Day Volume Summary. As noted on the Fee Schedule, for mid-month subscriptions, new subscribers will be charged for the full calendar month for which they subscribe and will be provided NYSE Options Open-Close Volume Summary data for each trading day of the calendar month in which they subscribed. The proposed monthly fees will apply to all market participants. The Exchange notes that other exchanges provide similar data products that may be purchased on a monthly basis and are comparably priced.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
In adopting Regulation NMS, the Commission granted self-regulatory organizations (“SROs”) and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to users and consumers of such data and also spur innovation and competition for the provision of market data. Particularly, the Intra-Day Volume Summary further broadens the availability of U.S. options market data to investors consistent with the principles of Regulation NMS. Subscribers to the data may also be able to enhance their ability to analyze options trade and volume data and create and test trading models and analytical strategies. The Exchange believes the Intra-Day Volume Summary would provide a valuable tool that subscribers can use to gain comprehensive insight into the trading activity in a particular series, but also emphasizes such data is not necessary for trading. Moreover, other exchanges offer a similar data product.
The Exchange operates in a highly competitive market. Indeed, there are currently 16 registered options exchanges competing for order flow. Based on publicly-available information, and excluding index-based options, no single exchange has more than 16% of the market share of executed volume of multiply-listed equity and ETF options trades.
The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues, and also recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
With respect to market data, the decision of the United States Court of Appeals for the District of Columbia Circuit in
In fact, the legislative history indicates that the Congress intended that the market system “evolve through the interplay of competitive forces as unnecessary regulatory restrictions are removed” and that the SEC wield its regulatory power “in those situations where competition may not be sufficient,” such as in the creation of a “consolidated transactional reporting system.”
The court agreed with the Commission's conclusion that “Congress intended that `competitive forces should dictate the services and practices that constitute the U.S. national market system for trading equity securities.' ”
More recently, the Commission confirmed that it applies a “market-based” test in its assessment of market data fees, and that under that test:
Making similar historic data products available to market participants fosters competition in the marketplace, and constrains the ability of exchanges to charge supra-competitive fees. In the event that a market participant views one exchange's data product as more or less attractive than the competition they can and do switch between similar products. The proposed fees are a result of the competitive environment, as the Exchange seeks to adopt fees to attract purchasers of the Intra-Day Volume Summary data product.
The Exchange believes the proposed fees are reasonable as they are comparable to the fees assessed by other exchanges that provide similar data products.
The Exchange also believes the proposed fees are reasonable as they would support the introduction of a new historic market data product that is designed to aid investors by providing insight into trading on the Exchange. Once the Intra-Day Volume Summary is made available, it would provide options market participants with valuable information about opening and closing transactions executed on the Exchange throughout the trading day, similar to other trade data products offered by competing options exchanges. In turn, this data would assist market participants in gauging investor sentiment and trading activity, resulting in potentially better-informed trading decisions. As noted above, subscribers may also use such data to create and test trading models and analytical strategies.
Selling historic market data is also a means by which exchanges compete to attract business. To the extent that the Exchange is successful in attracting subscribers to the Exchange's historic data product, it may earn trading revenues and further enhance the value of its data products. If the market deems the proposed fees to be unfair or inequitable, subscribers can diminish or discontinue their use of the historic data and/or avail themselves of similar products offered by other exchanges.
As noted above, the Exchange anticipates a wide variety of market participants to purchase the Exchange's data product, including but not limited to individual customers, buy-side investors and investment banks. The Exchange reiterates that the decision as to whether or not to purchase the Intra-Day Volume Summary is entirely optional for all potential subscribers. Indeed, no market participant is required to purchase the data product, and the Exchange is not required to make the data product available to market participants. Rather, the Exchange is voluntarily making the Intra-Day Volume Summary data product available, as requested by customers, and market participants may choose to receive (and pay for) this data based on their own business needs. Potential subscribers may request the data at any time if they believe it to be valuable or may decline to purchase such data.
In sum, the fierce competition for order flow constrains any exchange from pricing its historic market data at a supra-competitive price, and constrains the Exchange here in setting its fees for the Intra-Day Volume Summary data product. As described above, the Exchange's data product competes head-to-head with numerous products currently available in the marketplace. These products each serve as reasonable substitutes for one another as they are each designed to provide data on options market activity which can be used to infer longer-term trends. The information provided by one exchange is generally similar to that provided by other exchanges because order flow can move from one exchange to another, and market sentiment trends that appear on one exchange are likely to be similar to the sentiment trends on other exchanges. The key differentiator in the quality of the data depends on the volume of transactions on a given exchange. The greater the volume of transactions, the greater the value of the historic data. The proposed fees are therefore reasonable because in setting them, the Exchange is constrained by the availability of numerous substitute venues offering historic market data products and trading. Such substitutes need not be identical, but only substantially similar to the product at hand.
More specifically, in setting fees for the Intra-Day Volume Summary, the Exchange is constrained by the fact that, if its pricing is unattractive to subscribers, subscribers have their pick of an increasing number of alternative venues to use instead of the Exchange. The existence of numerous alternatives to the Exchange ensures that the Exchange cannot set unreasonable fees for historic market data without suffering the negative effects of that decision in the fiercely competitive market in which it operates.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange also does not believe the proposed fees would cause any unnecessary or inappropriate burden on intermarket competition as other exchanges are free to introduce their own comparable historic data product and adopt fees to better compete with the Exchange's offering. Rather, the Exchange believes that the proposal will promote competition by permitting the Exchange to sell a data product similar
Furthermore, the Exchange operates in a highly competitive environment, and its ability to price Intra-Day Volume Summary is constrained by competition among exchanges that offer similar data products to their customers. As discussed above, there are currently a number of similar products available to market participants and investors. At least eight other U.S. options exchanges offer a market data product that is substantially similar to the Exchange's offering, which the Exchange must consider in its pricing discipline in order to compete effectively.
The Exchange does not believe the proposed rule change would cause any unnecessary or inappropriate burden on intramarket competition. Particularly, the proposed fees would apply uniformly to any subscriber, in that the Exchange would not differentiate between subscribers that purchase the Intra-Day Volume Summary and all subscribers would receive the same information in the data feed. The Exchange believes the proposed fees are set at a modest level that would allow interested subscribers to purchase such data based on their business needs.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that the Securities and Exchange Commission (the “Commission”) has, in accordance with the Paperwork Reduction Act of 1995 (Public Law 104-13, 44 U.S.C. 3501
As directed by the Fair Access to Investment Research Act of 2017 (Pub. L. 115-66, 131 Stat. 1196 (2017) (the “FAIR Act”), the Commission adopted rule 139b under the Securities Act to extend the safe harbor under rule 139 to a “covered investment fund research report.” Specifically, rule 139b provides a safe harbor to a broker-dealer who publishes or distributes in the regular course of its business research reports concerning one or more “covered investment fund(s)” while participating in the distribution of a covered investment fund's securities.
In the Adopting Release, the Commission adopted the provision that rule 139b include a standardized performance disclosure requirement. The Commission believes that standardized performance presentation is an appropriate requirement because investors tend to consider fund performance a significant factor in evaluating or comparing investment companies, and the requirement addresses potential investor confusion if a communication were not easily recognizable as research as opposed to an advertising prospectus or supplemental sales literature. Rule 139b requires that research reports about open-end funds that include performance information must present it in accordance with paragraphs (d), (e), and (g) of rule 482. Rule 139b also requires that research reports about closed-end funds that include performance information must present it in accordance with instructions to item 4.1(g) of Form N-2. Performance measures calculated by broker-dealers are not required to be kept confidential and there is no mandatory retention period. The Commission anticipates that compliance with these performance measures for each fund discussed in a research report, and for which the performance measures apply, would increase compliance costs for broker-dealers seeking to publish or distribute a covered investment fund research report.
It is difficult to provide estimates of the burdens and costs for those broker-dealers that will include performance information in a rule 139b research report. As discussed in the Adopting Release, this is difficult to estimate because current data collected does not reflect the affiliate exclusion, does not include the entire universe of covered investment funds, and it is uncertain what percentage of communications currently filed as rule 482 advertising prospectuses (or rule 34b-1 supplemental sales materials) will instead be published in reliance of rule 139b, as covered investment fund research reports.
In sum, we estimate that rule 139b's requirements will impose a total annual internal hour burden of 14,379 hours on broker-dealers.
This information collection is subject to the PRA and responses to this collection of information requirement would not be mandatory for broker-dealers seeking to rely upon rule 139b, but would be necessary for those broker-dealers that would like to provide performance information in their covered investment fund research reports. Responses to the information collections will not be kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Written comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted by September 12, 2022.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: David Bottom, Acting Director/Chief Information Officer, Securities and Exchange Commission, c/o John Pezzullo, 100 F Street NE, Washington, DC 20549 or send an email to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX”) proposes to amend its Fee Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Fee Schedule applicable to its equities trading platform (“EDGX Equity”) to modify the criteria of Add Volume Tier 2. The Exchange proposes to implement these changes effective July 1, 2022.
The Exchange first notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient. More specifically, the Exchange is only one of 16 registered equities exchanges, as well as a number of alternative trading systems and other off-exchange venues that do not have similar self-regulatory responsibilities under the Exchange Act, to which market participants may direct their order flow. Based on publicly available information,
Under footnote 1 of the Fee Schedule, the Exchange currently offers various Add/Remove Volume Tiers. In particular, the Exchange offers four [sic] Add Volume Tiers that each provide an enhanced rebate for Members' qualifying orders yielding fee codes B,
The Exchange believes that the proposed lower thresholds in Add Volume Tier 2 will incentivize market participants to provide additional displayed liquidity on the Exchange, thereby contributing to a deeper and more liquid market, which benefits all market participants and provides greater execution opportunities on the Exchange. The Exchange is not proposing any changes to Add Volume Tier 1 or Add Volume Tier 3.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that the proposed changes to Add Volume Tier 2 are reasonable, equitable and not unfairly discriminatory because the tier, as modified, continues to be available to all Members and provide Members an opportunity to receive an enhanced rebate. As noted above, the Exchange operates in a highly competitive market. The Exchange is only one of 16 equity venues to which market participants may direct their order flow, and it represents a small percentage of the overall market. It is also only one of several maker-taker exchanges. Competing equity exchanges offer similar rates and tiered pricing structures to that of the Exchange, including schedules of rebates and fees that apply based upon members achieving certain volume thresholds. Specifically, the Exchange notes that relative volume-based incentives and discounts have been widely adopted by exchanges,
Specifically, the Exchange believes the proposed criteria changes for Add Volume Tier 2 are reasonable because the tier will continue to provide Members with an opportunity to receive an enhanced rebate or reduced fee by encouraging Members to increase their order flow to the Exchange. In particular, the Exchange believes that the changes to Add Volume Tier 2 will provide reasonable means for Members to receive an enhanced rebate for adding liquidity on the Exchange. The Exchange also believes that the current enhanced rebate for Add Volume Tier 2 continues to be commensurate with the proposed criteria. That is, the rebate reasonably reflects the difficulty in achieving the applicable criteria as amended. Furthermore, the Exchange believes that the proposed lower thresholds in Add Volume Tier 2 will incentivize market participants to provide additional displayed liquidity on the Exchange, thereby contributing to a deeper and more liquid market, which benefits all market participants and provides greater execution opportunities on the Exchange.
The Exchange believes the proposed changes to Add Volume Tier 2 represent an equitable allocation of rebates and fees and are not unfairly discriminatory because all Members are eligible for those tiers and would have the opportunity to meet a tier's criteria and would receive the proposed enhanced rebate or reduced fee if such criteria is met. Without having a view of activity on other market and off-exchange venues, the Exchange has no way of knowing whether this proposed rule change would definitely result in any Members qualifying for the proposed tiers. While the Exchange has no way of predicting with certainty how the proposed tiers will impact Member activity, the Exchange anticipates that two Members will be able to satisfy the criteria proposed for Add Volume Tier 2. The Exchange also notes that the proposed changes will not adversely impact any Member's ability to qualify for other reduced fee or enhanced rebated tiers. Should a Member not meet the proposed criteria under the modified tier, the Member will merely not receive that corresponding enhanced rebate or reduced fee. The Exchange believes that the proposed changes to Add Volume Tier 2 will benefit all market participants by incentivizing continuous liquidity and, thus, deeper more liquid markets as well as increased execution opportunities. Particularly, the proposal is designed to incentivize liquidity, which further contributes to a deeper, more liquid market and provide even more execution opportunities for active market participants at improved prices. This overall increase in activity deepens the Exchange's liquidity pool, offers additional cost savings, supports the quality of price discovery, promotes market transparency and improves market quality, for all investors.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, as discussed above, the Exchange believes that the proposed change would encourage the submission of additional order flow to a public exchange, thereby promoting market depth, execution incentives and enhanced execution opportunities, as well as price discovery and transparency for all Members. As a result, the Exchange believes that the proposed change furthers the Commission's goal in adopting Regulation NMS of fostering competition among orders, which promotes “more efficient pricing of individual stocks for all types of orders, large and small.”
The Exchange believes the proposed rule change does not impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Particularly, the proposed tier changes will apply to all Members equally in that all Members will continue to be eligible for Add Volume Tier 2, have a reasonable opportunity to meet the tier's criteria and will receive the enhanced rebate on their qualifying orders if such criteria are met.
The Exchange does not believe the proposed changes burden competition, but rather, enhance competition as they are intended to increase the competitiveness of EDGX by amending existing pricing incentives in order to attract order flow and incentivize participants to increase their participation on the Exchange, providing for additional execution opportunities for market participants and improved price transparency. Greater overall order flow, trading opportunities, and pricing transparency benefit all market participants on the Exchange by enhancing market quality and continuing to encourage Members to send orders, thereby contributing towards a robust and well-balanced market ecosystem.
Next, the Exchange believes the proposed rule change does not impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. As previously discussed, the Exchange operates in a highly competitive market. Members have numerous alternative venues that they may participate on and direct their order flow, including other equities exchanges, off-exchange venues, and alternative trading systems. Additionally, the Exchange represents a small percentage of the overall market. Based on publicly available information, no single equities exchange has more
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 6, 2022, MEMX LLC (“MEMX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
2 p.m. on Thursday, July 14, 2022.
The meeting will be held via remote means and/or at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's website at
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
The subject matter of the closed meeting will consist of the following topics:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Resolution of litigation claims; and
Other matters relating to examinations and enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting agenda items that may consist of adjudicatory, examination, litigation, or regulatory matters.
For further information; please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17Ad-16 requires a registered transfer agent to provide written notice to the appropriate qualified registered securities depository when assuming or terminating transfer agent services on behalf of an issuer or when changing its name or address. In addition, transfer agents that provide such notice shall maintain such notice for a period of at least two years in an easily accessible place. This rule addresses the problem of certificate transfer delays caused by transfer requests that are directed to the wrong transfer agent or the wrong address.
We estimate that the transfer agent industry submits approximately 15,917 Rule 17Ad-16 notices to appropriate qualified registered securities depositories. The staff estimates that the average amount of time necessary to create and submit each notice is approximately 15 minutes per notice. Accordingly, the estimated total industry burden is 3,979.25 hours per year (15 minutes multiplied by 15,917 notices filed annually).
Because the information needed by transfer agents to properly notify the appropriate registered securities depository is readily available to them and the report is simple and straightforward, the cost is relatively minimal. The average internal compliance cost to prepare and send a notice is approximately $86 (15 minutes at $344 per hour).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website: >
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to September 12, 2022.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
Section 101(a)(15)(E) of the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15)(E), provides for the nonimmigrant classification of a national of a country with which the United States maintains an appropriate treaty of commerce and navigation who is coming to the United States to: (i) carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country; or (ii) develop and direct the operations of an enterprise in which the national has invested, or is actively in the process of investing a substantial amount of capital. The Department requires all E-1 treaty trader visa applicants and E-2 treaty investor applicants, if the applicant is an Executive, Manager, or Essential Employee, to submit Form DS-156E, which collects information necessary to determine an applicant's qualifications and eligibility for such a visa.
After completing Form DS-160, Online Nonimmigrant Visa Application, applicants will complete the DS-156E online, print the form, and submit it in person or via mail.
Susquehanna River Basin Commission.
Notice.
This notice lists Grandfathering Registration for projects by the Susquehanna River Basin Commission during the period set forth in DATES.
June 1-30, 2022.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel and Secretary to the Commission, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists GF Registration for projects, described below, pursuant to 18 CFR part 806, subpart E, for the time period specified above:
1. Lebanon Valley College, GF Certificate No. GF-202206217, Annville and North Annville Townships, Lebanon County, Pa.; Football Well, Baseball Well, and West (Soccer) Well; Issue Date: June 16, 2022.
2. Beavertown Municipal Authority—Public Water Supply System, GF Certificate No. GF-202206218, Beaver Township, Snyder County, Pa.; Well 3; Issue Date: June 30, 2022.
3. Cooper Township Municipal Authority—Public Water Supply System, GF Certificate No. GF-202206219, Rush Township, Centre County, Pa.; Black Bear Run; Issue Date: June 30, 2022.
4. Municipal Authority of the Borough of Shenandoah—Public Water Supply System, GF Certificate No. GF-202206220, Union and West Mahanoy Townships, Schuylkill County, Pa.; Raven Run Reservoir No. 2; Issue Date: June 30, 2022.
5. Standard Steel, LLC—Standard Steel, GF Certificate No. GF-202206221, Burnham Borough, Mifflin County, Pa.; Creighton Run, Kishacoquillas Creek, and consumptive use; Issue Date: June 30, 2022.
Susquehanna River Basin Commission.
Notice.
The Susquehanna River Basin Commission will hold a public hearing on August 11, 2022. The Commission will hold this hearing in-person and telephonically. At this public hearing, the Commission will hear testimony on the projects listed in the
The public hearing will convene on August 11, 2022, at 6:30 p.m. The public hearing will end at 9:00 p.m. or at the conclusion of public testimony,
This public hearing will be conducted in-person and telephonically. You may attend in person at Susquehanna River Basin Commission, 4423 N Front St., Harrisburg, Pennsylvania or join by Conference Call #: 1-888-387-8686, Conference Room #: 917 968 6050.
Jason Oyler, General Counsel and Secretary to the Commission, telephone: (717) 238-0423 or
Information concerning the applications for the projects is available at the Commission's Water Application and Approval Viewer at
The Commission is proposing a revised SRBC Civil Penalty Matrix. This would replace the current Policy No. 96-01. The Commission is also proposing a revised Policy and Guidance Statement for the Settlement of Civil Penalties/Enforcement Actions. This would replace Policy No. 2000-01. In addition, the public hearing will cover the following projects:
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Interested parties may call into the hearing to offer comments to the Commission on any business listed above required to be the subject of a public hearing. Given the nature of the meeting, the Commission strongly encourages those members of the public wishing to provide oral comments to
Susquehanna River Basin Commission.
Notice.
This notice lists the minor modifications approved for a previously approved project by the Susquehanna River Basin Commission during the period set forth in
June 1-30, 2022
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel and Secretary to the Commission, telephone: (717) 238-0423, ext. 1312; fax (717) 238-2436; email:
This notice lists previously approved projects, receiving approval of minor modifications, described below, pursuant to 18 CFR 806.18 or to Commission Resolution Nos. 2013-11 and 2015-06 for the time period specified above.
1. Helix Ironwood, LLC, Docket No. 19980502-2, South Lebanon Township, Lebanon County, Pa.; modification approval to change the consumptive use mitigation method; Approval Date: June 29, 2022.
2. Ri-Corp. Development, Inc.—Gilberton Power Company, Docket Nos. 20161220 and 20220622, Gilberton Borough and West Mahanoy Township, Schuylkill County, Pa.; modification approval to change the consumptive use mitigation method and correction to include registered legal company name; Approval Date: June 30, 2022.
Susquehanna River Basin Commission.
Notice.
This notice lists Approvals by Rule for projects by the Susquehanna River Basin Commission during the period set forth in
June 1-30, 2022.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel and Secretary to the Commission, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists the projects, described below, receiving approval for the consumptive use of water pursuant to the Commission's approval by rule process set forth in 18 CFR 806.22 (e) and 18 CFR 806.22 (f) for the time period specified above:
1. Chesapeake Appalachia, L.L.C.; Pad ID: Dunham; ABR-20100418.R2; Albany Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: June 6, 2022.
2. Chesapeake Appalachia, L.L.C.; Pad ID: Hayward New; ABR-20100535.R2; Rome Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: June 6, 2022.
3. Chesapeake Appalachia, L.L.C.; Pad ID: Matt Will Farms; ABR-20100544.R2; Troy Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: June 6, 2022.
Seneca Resources Company, LLC; Pad ID: Breon 492; ABR-20100553.R2; Sullivan Township, Tioga County, Pa.; Consumptive Use of Up to 4.00000 mgd; Approval Date: June 20, 2022.
4. SWN Production Company, LLC; Pad ID: Marcucci_Jones Pad; ABR-201205017.R2; Stevens Township, Bradford County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: June 20, 2022.
5. SWN Production Company, LLC; Pad ID: Humbert III Pad (RU-9); ABR-201205018.R2; New Milford Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: June 20, 2022.
6. SWN Production Company, LLC; Pad ID: Scarlet Oaks Pad (RU-38); ABR-201205020.R2; New Milford Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: June 20, 2022.
7. SWN Production Company, LLC; Pad ID: Moore Well Pad; ABR-201205021.R2; New Milford Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: June 20, 2022.
8. SWN Production Company, LLC; Pad ID: Wheeler Well Pad; ABR-201205022.R2; Silver Lake Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: June 20, 2022.
9. SWN Production Company, LLC; Pad ID: O'Reilly Well Pad; ABR-201205023.R2; Forest Lake Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: June 20, 2022.
10. Repsol Oil & Gas USA, LLC; Pad ID: FERGUSON (01 023) R; ABR-20100453.R2; Granville Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: June 20, 2022.
11. Coterra Energy Inc.; Pad ID: WarrinerS P1; ABR-201505003.R1; Bridgewater Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: June 20, 2022.
12. Coterra Energy Inc.; Pad ID: Petty P1; ABR-20100550.R2; Dimock Township, Susquehanna County, Pa.;
13. EXCO Resources (PA), LLC; Pad ID: Taylor (Pad 33); ABR-20100611.R2; Burnside Township, Centre County, Pa.; Consumptive Use of Up to 8.0000 mgd; Approval Date: June 20, 2022.
14. Coterra Energy Inc.; Pad ID: Lauffler P1; ABR-20100608.R2; Springville Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: June 20, 2022.
15. Coterra Energy Inc.; Pad ID: OakleyJ P1; ABR-20100603.R2; Springville Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: June 20, 2022.
16. Coterra Energy Inc.; Pad ID: Post P1; ABR-20100605.R2; Brooklyn Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: June 20, 2022.
17. Coterra Energy Inc.; Pad ID: StockholmK P3; ABR-20100609.R2; Rush Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: June 20, 2022.
18. Seneca Resources Company, LLC; Pad ID: Clark 486; ABR-20100429.R2; Sullivan Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: June 20, 2022.
19. Seneca Resources Company, LLC; Pad ID: Young 431; ABR-20100561.R2; Shippen Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: June 20, 2022.
20. Chesapeake Appalachia, L.L.C.; Pad ID: Duane; ABR-20100601.R2; Leroy Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: June 20, 2022.
21. Seneca Resources Company, LLC; Pad ID: Mitchell 456; ABR-20100615.R2; Jackson Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: June 28, 2022.
22. Seneca Resources Company, LLC; Pad ID: Hege 436; ABR-20100622.R2; Delmar Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: June 28, 2022.
23. Range Resources—Appalachia, LLC; Pad ID: Mohawk Lodge Unit; ABR-20100619.R2; Gallagher Township, Clinton County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: June 28, 2022.
24. Chesapeake Appalachia, L.L.C.; Pad ID: Cannella; ABR-20100637.R2; Auburn Township, Susquehanna County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: June 28, 2022.
25. Seneca Resources Company, LLC; Pad ID: Valldes Pad C; ABR-20100620.R2; Covington Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: June 28, 2022.
26. Seneca Resources Company, LLC; Pad ID: Wivell Pad I; ABR-20100607.R2; Covington Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: June 28, 2022.
27. Seneca Resources Company, LLC.; Pad ID: COP Pad B; ABR-20100645.R2; Lawrence Township, Clearfield County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: June 28, 2022.
28. Repsol Oil & Gas USA, LLC; Pad ID: HARNISH (01 032) G; ABR-20100647.R2; Canton Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: June 28, 2022.
29. Coterra Energy Inc.; Pad ID: FergusonA P1; ABR-201506003.R1; Harford Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: June 28, 2022.
30. Seneca Resources Company, LLC; Pad ID: Erickson 423; ABR-20100618.R2; Delmar Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: June 29, 2022.
31. Chesapeake Appalachia, L.L.C.; Pad ID: Them; ABR-20100642.R2; Wysox Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: June 29, 2022.
32. Chesapeake Appalachia, L.L.C.; Pad ID: Linski; ABR-20100662.R2; Tuscarora Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: June 30, 2022.
33. Seneca Resources Company, LLC; Pad ID: Shelman 291; ABR-20100659.R2; Charleston Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: June 29, 2022.
34. Inflection Energy (PA), LLC; Pad ID: Eichenlaub B Pad; ABR-201206013.R2; Upper Fairfield Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: June 30, 2022.
35. Campbell Oil & Gas, Inc.; Pad ID: Mid Penn Unit B Well Pad; ABR-201206017.R2; Bigler Township, Clearfield County, Pa.; Consumptive Use of Up to 2.0000 mgd; Approval Date: June 30, 2022.
36. Range Resources—Appalachia, LLC; Pad ID: Ogontz Fishing Club Unit #12H-#17H; ABR-20100648.R2; Cummings Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: June 30, 2022.
Federal Aviation Administration (FAA), DOT.
Notice of public meeting.
This notice announces a meeting of the Youth Access to American Jobs in Aviation Task Force (YIATF or Task Force).
The meeting will be held on September 22, 2022, from 9:00 a.m. to 12:00 p.m. Eastern Time.
Requests for accommodations to a disability must be received by September 8, 2022. Requests to submit written materials to be reviewed during the meeting must be received no later than September 8, 2022.
The meeting will be held at FAA Headquarters, 800 Independence Avenue SW, Washington, DC 20591, as well as virtually. In-person attendance is limited to Task Force members and staff; members of the public may attend virtually.
Members of the public who wish to observe the virtual meeting may access the event live on the FAA's Twitter, Facebook and YouTube channels. Information on the committee and copies of the meeting minutes will be available on the FAA Committee website at
Ms. Aliah Duckett, Federal Aviation Administration, by email at
The FAA established the Task Force by charter on October 3, 2019, under Public Law 115-254. The Task Force is required by statute to develop and
At the meeting, the agenda will cover the following topics:
A detailed agenda will be posted on the FAA Committee website address listed in the
Members of the public who wish to attend the meeting can access the livestream on the FAA social media platforms listed in the
The U.S. Department of Transportation is committed to providing equal access to this meeting for all participants. If you need alternative formats or services because of a disability, such as sign language, interpretation, or other ancillary aids, please contact the person listed in the
The FAA is not accepting oral presentations at this meeting due to time constraints. However, the public may present written statements to the Task Force by providing a copy to the Designated Federal Officer via the email listed in the
Issued in Washington, DC.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Michelin North America, Inc., (MNA), has determined that certain Michelin X Multi D+ replacement tires do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 119,
Send comments on or before August 11, 2022.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and may be submitted by any of the following methods:
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• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.
When the petition is granted or denied, notice of the decision will also be published in the
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at
DOT's complete Privacy Act Statement is available for review in a
Jayton Lindley, Office of Vehicle Safety Compliance, NHTSA, (325) 655-0547.
I.
MNA filed an original noncompliance report dated March 25, 2022, pursuant to 49 CFR part 573,
This notice of receipt of MNA's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or another exercise of judgment concerning the merits of the petition.
II.
III.
IV.
MNA explains that the noncompliance was found when a Michelin Field Engineer was notified that some of the subject tires “had a different tread pattern than the customer was accustomed to.” MNA explains that the subject tires were intended for the Asia and India tire markets, yet were certified to the applicable U.S. FMVSS, and properly labeled with the certification symbol “DOT.” MNA states that the tires “entered the U.S. through channels outside of Michelin's control.” MNA says that the subject tires have not been sold through MNA's sales or distribution channels. MNA also states that it has taken corrective measures to prevent the shipping or sale of the tires by blocking the SKUs in its internal databases.
MNA claims that the subject tires were manufactured as a load index 148 single/145 dual tire with a maximum single load rating of 3150 kilograms or 6940 pounds at 830 kPa or 120 psi cold inflation pressure and a maximum dual load rating of 2900 kilograms or 6395 pounds at 830 kPa or 120 psi cold inflation pressure. In regard to operational safety, MNA asserts that it tested the subject tires and found that they comply with the necessary performance requirements required by FMVSS No. 119. Except for the subject noncompliance, MNA also claims that the subject tires meet all marking requirements and “are also marked with load indices for single and dual applications,” which MNA contends will “provide both dealers and consumers with the necessary information to enable proper selection and application of the tires.”
MNA states that it has blocked the SKU for the subject tires in its systems to prevent shipment to the U.S. and sale through MNA. MNA also states that the molds will be updated to include the required load range letter designation and until then, the SKU will remain blocked in its systems.
MNA says that NHTSA has previously granted petitions which it believes are similar to the subject petition. MNA refers to the granting of the petition submitted by China Manufacturers Alliance, LLC, for 1,753,089 truck & bus radial replacement tires that were missing the letter marking that designates the tire load range on the tire sidewall.
MNA concludes by stating its belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety and its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject tires that MNA no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve tire distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant tires under their control after MNA notified them that the subject noncompliance existed.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein.
Comments must be received on or before August 11, 2022.
Record Center, Pipeline and Hazardous Materials Safety Administration U.S. Department of Transportation Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Donald Burger, Chief, Office of Hazardous Materials Safety General Approvals and Permits Branch, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC.
This notice of receipt of applications for special permit is published in accordance with part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of actions on special permit applications.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein.
Comments must be received on or before August 11, 2022.
Record Center, Pipeline and Hazardous Materials Safety Administration U.S. Department of Transportation, Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Donald Burger, Chief, Office of Hazardous Materials Safety General Approvals and Permits Branch, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC.
This notice of receipt of applications for special permit is published in accordance with part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for modification of special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein.
Comments must be received on or before July 27, 2022.
Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Donald Burger, Chief, Office of Hazardous Materials Safety General Approvals and Permits Branch, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC or at
This notice of receipt of applications for special permit is published in accordance with part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comments.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a continuing information collection as required by the Paperwork Reduction Act of 1995 (PRA). In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning the renewal of its information collection titled, “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery.”
Comments must be submitted on or before September 12, 2022.
Commenters are encouraged to submit comments by email, if possible. You may submit comments by any of the following methods:
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Following the close of this notice's 60-day comment period, the OCC will publish a second notice with a 30-day comment period. You may review comments and other related materials that pertain to this information collection beginning on the date of publication of the second notice for this collection by the method set forth in the next bullet.
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• For assistance in navigating
Shaquita Merritt, OCC Clearance Officer, (202) 649-5490, Chief Counsel's Office, Office of the Comptroller of the Currency, 400 7th Street SW, Suite 3E-218, Washington, DC 20219. If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.
Under the PRA (44 U.S.C. 3501
The OCC's solicitations for feedback target areas such as timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues related to service delivery. The OCC uses the responses to inform and plan efforts to improve or maintain the quality of service offered to the public. If the OCC does not collect this information, it will not have access to vital feedback from stakeholders.
Under this generic ICR, the OCC will submit a specific information collection for approval only if the collection meets the following conditions:
• It is voluntary;
• It imposes a low burden on respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and a low cost on both respondents and the Federal government;
• It is non-controversial and does not raise issues of concern to other Federal agencies;
• It is targeted to solicit opinions from respondents who have experience with the program or will have experience with the program in the near future;
• It includes personally identifiable information (PII) only to the extent necessary, and the OCC does not retain the PII;
• It gathers information intended to be used internally only for general service improvement and program management purposes and is not intended for release outside of the OCC;
• It does not gather information to be used for the purpose of substantially informing influential policy decisions;
• It gathers information that will yield qualitative information and will not be designed or expected to yield statistically reliable results or used to reach general conclusions about the surveyed population; and
• Feedback collected provides useful information but does not yield data that can be attributed to the overall population.
If these conditions are not met, the OCC will submit an information collection request to OMB for approval through the normal PRA process.
The OCC will not use this type of generic clearance for the collection of qualitative feedback for any quantitative information collection.
As a general matter, these information collections will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature.
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCC's estimate of the burden of the information collection;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and/or purchase of services expended to provide information.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List
See
OFAC: Andrea Gacki, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; Assistant Director for Licensing, tel.: 202-622-2480; or Assistant Director for Regulatory Affairs, tel. 202-622-4855.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On March 10, 2022, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following person are blocked under the relevant sanctions authority listed below.
1. CENTRAL RESERVE POLICE (a.k.a. ABU TIRA; a.k.a. CENTRAL POLICE RESERVE; a.k.a. CENTRAL RESERVE FORCES; a.k.a. EL ITTIHAD EL MARKAZI), Sudan; Organization Type: Public order and safety activities [GLOMAG].
Designated pursuant to section 1(a)(ii)(A) of Executive Order 13818 of December 20, 2017, “Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption,” 82 FR 60839, 3 CFR, 2018 Comp., p. 399, for being a foreign person that is responsible for or complicit in, or has directly or indirectly engaged in, serious human rights abuse.
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing updates to the identifying information of one person on OFAC's List of Specially Designated Nationals and Blocked Persons (SDN List), whose property and interests in property are blocked pursuant to Executive Order 13405 of June 16, 2006, “Blocking Property of Certain Persons Undermining Democratic Processes or Institutions in Belarus,” 71 FR 35485 (June 20, 2016) (E.O. 13405).
See
OFAC: Andrea Gacki, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On July 06, 2022, OFAC updated the entry on the SDN List for the following person, whose property and interests in property are blocked pursuant to E.O. 13405.
The amended identification information is as follows:
BELARUSIAN OIL TRADE HOUSE (a.k.a. BELARUSIAN OIL TRADING HOUSE; a.k.a. BELARUSIAN OIL TRADING HOUSE REPUBLICAN SUBSIDIARY UNITARY ENTERPRISE; a.k.a. BELARUSIAN OIL TRADING HOUSE REPUBLICAN UNITARY SUBSIDIARY; a.k.a. UE BELARUSIAN OIL TRADE HOUSE; a.k.a. “B.O.T.H.”; a.k.a. “UNITED TRADING SITE”), Prospect Dzerzhinskogo, 73, Minsk 220116, Belarus; 73 Derzhinskiy Ave., Minsk 220116, Belarus; Dzerzhinsky Avenue, 73, Minsk 220116, Belarus; website
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that a meeting of the Geriatric and Gerontology Advisory Committee will be held in person or virtually on Tuesday, September 20, 2022, from 8:00 a.m. to 4:00 p.m. and Wednesday, September 21, 2022, from 8:00 a.m. to 12:00 noon (Eastern Daylight Time). This meeting will be held at the U.S. Department of Veteran Affairs at 810 Vermont Avenue NW, Washington, DC 20420, as well as virtually via WebEx and is open to the public.
The purpose of the Committee is to provide advice to the Secretary of VA and the Under Secretary for Health on all matters pertaining to geriatrics and gerontology. The Committee assesses the capability of VA health care facilities and programs to meet the medical, psychological, and social needs of older Veterans, and evaluates VA programs designated as Geriatric Research, Education, and Clinical Centers.
Although no time will be allocated for receiving oral presentations from the public, members of the public may submit written statements for review by the Committee to: Marianne Shaughnessy, CRNP, Ph.D., Designated Federal Officer, Veterans Health Administration by email at
Any member of the public wishing to attend either in person or virtually or seeking additional information should email
Office for Civil Rights, Department of Education.
Notice of proposed rulemaking.
The U.S. Department of Education (Department) proposes to amend the regulations implementing Title IX of the Education Amendments of 1972 (Title IX). The purpose of the proposed regulations is to better align the Title IX regulatory requirements with Title IX's nondiscrimination mandate, and to clarify the scope and application of Title IX and the obligation of all schools, including elementary schools, secondary schools, postsecondary institutions, and other recipients that receive Federal financial assistance from the Department (referred to below as recipients or schools) to provide an educational environment free from discrimination on the basis of sex, including through responding to incidents of sex discrimination. The Department recognizes that schools vary in size, student populations, and administrative structure. The proposed regulations would enable all schools to meet their obligations to comply fully with Title IX while providing them appropriate discretion and flexibility to account for these variations.
Comments must be received on or before September 12, 2022.
Comments must be submitted via the Federal eRulemaking Portal at
The Department strongly encourages you to submit any comments or attachments in Microsoft Word format. If you must submit a comment in Adobe Portable Document Format (PDF), the Department strongly encourages you to convert the PDF to “print-to-PDF” format, or to use some other commonly used searchable text format. Please do not submit the PDF in a scanned format. Using a print-to-PDF format allows the Department to electronically search and copy certain portions of your submissions to assist in the rulemaking process.
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The Department's policy is to generally make comments received from members of the public available for public viewing on the Federal eRulemaking Portal at
Alejandro Reyes, U.S. Department of Education, 400 Maryland Ave. SW, PCP-6125, Washington, DC 20202. Telephone: 202-245-7705. You may also email your questions to
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
The Department's review of the current regulations and of information received during and pursuant to a week-long public hearing as well as stakeholder listening sessions and meetings suggest that the current regulations do not best fulfill the requirement of Title IX of the Education Amendments of 1972 (Title IX) that schools and institutions that receive Federal financial assistance eliminate discrimination on the basis of sex in their education programs or activities. The Department therefore proposes that the current regulations should be amended to provide greater clarity regarding the scope of sex discrimination, including recipients' obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. Further, the Department proposes that the current regulations could better account for the variety of education programs or activities covered by Title IX, which include recipients' education programs or activities serving students in elementary schools, secondary schools, and postsecondary institutions.
The Department makes these proposals based on an extensive review of its regulations implementing Title IX, as well as the live and written comments received during a nationwide virtual public hearing on Title IX held in June 2021. In addition, in 2021, the Office for Civil Rights held numerous listening sessions with a wide array of stakeholders on various issues related to Title IX and considered input from stakeholders during meetings held in 2022 under Executive Order 12866, after the NPRM was submitted to OMB.
• Require recipients to adopt grievance procedures that provide for the prompt and equitable resolution of complaints of sex discrimination and take other necessary steps to provide an educational environment free from sex discrimination;
• Clarify the Department's view of the scope of Title IX's prohibition on sex discrimination, including related to a
• Clarify a recipient's obligations to students and employees who are pregnant or experiencing pregnancy-related conditions.
With regard to sex-based harassment (as defined in proposed § 106.2), the proposed regulations would:
• Define sex-based harassment to include but not be limited to sexual harassment;
• Provide and clarify, as appropriate, definitions of various terms related to a recipient's obligations to address sex discrimination, including sex-based harassment;
• Clarify how a recipient is required to take action to end any sex discrimination that has occurred in its education program or activity, prevent its recurrence, and remedy its effects; and
• Clarify a recipient's obligations related to the grievance procedures and other necessary steps when it receives a complaint of sex discrimination.
With regard to discrimination against individuals who are pregnant or parenting, the proposed regulations would:
• Define the term “pregnancy or related conditions” and the term “parental status,” and prohibit discrimination against students and applicants for admission or employment on the basis of current, potential, or past pregnancy or related conditions; and
• Clarify a recipient's obligations to students and employees who are pregnant or experiencing related conditions.
In addition, the proposed regulations would:
• Articulate the Department's understanding that sex discrimination includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity;
• Clarify and streamline administrative requirements with respect to designating a Title IX Coordinator, disseminating a nondiscrimination notice, adopting grievance procedures, and recordkeeping;
• Specify that a recipient must train a range of relevant persons on the recipient's obligations under Title IX;
• Clarify that, unless otherwise provided by Title IX or the regulations, a recipient must not carry out any otherwise permissible different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity; and
• Clarify a recipient's obligation to address retaliation.
As further detailed in the
The Department also acknowledges that the proposed regulations deviate from some past agency statements on Title IX's coverage of discrimination based on sexual orientation and gender identity. As explained in the
The Department invites you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 (explained further below) and their overall goal of reducing the regulatory burden that might result from the proposed regulations. Please let the Department know of any further ways that it may reduce potential costs or increase potential benefits, while preserving the effective and efficient administration of the Department's programs and activities. The Department also welcomes comments on any alternative approaches to the subjects addressed by the proposed regulations.
During and after the comment period, you may inspect public comments about the proposed regulations by accessing
The mission of the Department's Office for Civil Rights (OCR) is to ensure equal access to education and to promote educational excellence through vigorous enforcement of civil rights in our nation's schools. One of the Federal civil rights laws that OCR enforces is Title IX, which prohibits discrimination on the basis of sex under education programs or activities that receive Federal financial assistance. 20 U.S.C. 1681-1688. Unfortunately, sex discrimination—sometimes overlapping with other forms of discrimination, such as race discrimination and disability discrimination—remains a serious problem, keeping affected students from benefiting fully from their school's education programs and activities.
In March 2021, President Joseph R. Biden, Jr. issued the Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity, and directed the Secretary of Education, in consultation with the Attorney General, to review all existing regulations, orders, guidance documents, policies and any other similar agency actions for consistency with Title IX and other governing laws. The goal of the Executive Order was to ensure “that all students [are] guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.”
Also, as set out in the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, issued in January 2021, this Administration's policy is “to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII [of the Civil Rights Act of 1964] and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.”
As these Executive Orders directed, the Department conducted an extensive review of its Title IX regulations and policy documents for consistency with Title IX's statutory prohibition on sex discrimination in federally funded education programs or activities. This review included careful consideration of the comments and feedback received during a nationwide virtual public hearing on Title IX that OCR held in June 2021, OCR's numerous listening sessions in 2021 with a wide array of individuals and organizations on various Title IX issues, and meetings with stakeholders held in 2022 under Executive Order 12866, after the NPRM was submitted to the Office of Management and Budget (OMB). Office of Management and Budget, Office of Information and Regulatory Affairs, Reginfo.gov,
In its review, the Department heard two overarching concerns from students, parents, recipients, advocates, and other concerned stakeholders, namely that: (1) there is a need for greater clarity on how to ensure that complaints of sex-based harassment are resolved in a prompt and equitable manner; and (2) the current regulations do not adequately clarify or specify the scope of sex discrimination prohibited by Title IX, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, or gender identity. The Department has determined that more clarity and greater specificity would better equip recipients of Federal funding
The goal of the Department's proposed regulations is thus to fully effectuate Title IX by clarifying and specifying the scope and application of Title IX protections and recipients' obligation not to discriminate on the basis of sex. Specifically, this proposed regulatory action focuses on ensuring that recipients prevent and address sex discrimination, including but not limited to sex-based harassment, in their education programs or activities;
Enacted in 1972, Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. 1681(a).
Title IX is cast in broad terms. It imposes, as a condition on receipt of Federal funds for education programs or activities, a blanket prohibition on sex-based discrimination, with a small number of “specific, narrow exceptions to that broad prohibition.”
Eliminating sex discrimination rooted in stereotypical perceptions of women's abilities, competence, and worthiness to participate in educational programs—as both student and employee—was also fundamental to Title IX.
Title IX authorizes and directs the Department, as well as other agencies “to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.” 20 U.S.C. 1682.
In 1979, the Supreme Court explained in
In 1975, the Department's predecessor, the Department of Health, Education, and Welfare (HEW), first promulgated regulations under Title IX
The regulations were promulgated to effectuate the purposes of Title IX, specifically to “eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance.” 34 CFR 106.1. The regulations implemented Title IX's nondiscrimination mandate through provisions that addressed sex discrimination in hiring, admissions, athletics, and other aspects of a recipient's education program or activity.
Since then, the understanding of Title IX has evolved through judicial
Title IX has also long been understood to prohibit discrimination related to pregnancy, consistent with its legislative history and the broad sweep of its sex-discrimination prohibition.
Title IX regulations regarding pregnancy, which were part of the 1975 HEW regulations, prohibit recipients from discriminating against students or employees based on “pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom,” 34 CFR 106.40(b)(1), 106.57(b), and prohibit sex-based distinctions on the basis of “parental, family, or marital status,” 34 CFR 106.40(a), 106.57(a). In guidance documents from 1991 and 2013, OCR emphasized that discrimination against pregnant students is a form of sex discrimination that may have significant adverse consequences for educational attainment and long-term economic stability, but the Department's regulations regarding pregnancy have remained unchanged since 1975. The Department proposes updated regulations to ensure full implementation of Title IX with respect to pregnancy and related conditions. Although the proposed regulations are based exclusively on Title IX, the Department notes that later-enacted statutes provide additional context and considerations related to discrimination based on pregnancy and or related conditions. In 1978, for example, Congress enacted the Pregnancy Discrimination Act (PDA), which amended the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 (Title VII) to prohibit employers from discriminating against employees “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. 2000e. The PDA requires that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”
The Department's Title IX regulations have never directly addressed the application of Title IX to discrimination based on sexual orientation or gender identity. OCR first issued guidance on the rights of gay and lesbian students in its 1997 Sexual Harassment Guidance, recognizing that harassment of a sexual nature directed at gay or lesbian students may constitute sexual harassment prohibited by Title IX. U.S. Dep't of Educ., Office for Civil Rights, Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third
Against this backdrop and for reasons described in this preamble, the Secretary proposes to amend the Title IX regulations at 34 CFR 106.1, 106.2, 106.6, 106.8, 106.11, 106.21, 106.30, 106.31, 106.40, 106.41, 106.44, 106.45, 106.46, 106.51, 106.57, 106.60, 106.71, and 106.81, as well as add new 106.10 and 106.47 and redesignate current 106.16 as 106.18 in subpart B and current 106.46 to 106.48 within subpart D. The Secretary also proposes to delete 34 CFR 106.3(c) and (d), 106.16, 106.17, 106.30, and 106.41(d) in their entirety, and delete portions of 34 CFR 106.15 and 106.21 to the extent they refer to 34 CFR 106.16 and 106.17.
On April 6, 2021, OCR issued a letter to students, educators, and other stakeholders that provided information about the steps the Department was taking to review its regulations, orders, guidance, policies, and other similar agency actions under Title IX. U.S. Dep't of Educ., Office for Civil Rights, Letter from Acting Assistant Secretary Suzanne B. Goldberg to Students, Educators, and other Stakeholders re Exec. Order 14021 (Apr. 6, 2021),
On May 20, 2021, OCR published a notice in the
In addition to soliciting live and written comments as part of the June 2021 Title IX Public Hearing, OCR also conducted listening sessions with stakeholders expressing a variety of views on the 2020 amendments and other aspects of Title IX, including advocates for survivors of sexual violence, students accused of sexual misconduct, and LGBTQI+
Responses to OCR's request for comments for the June 2021 Title IX Public Hearing and listening sessions with stakeholders revealed to OCR areas of concern and confusion following the implementation of the 2020 amendments. OCR heard from stakeholders that aspects of the new requirements were not well-suited to some or all educational environments or to effectively advancing Title IX's nondiscrimination mandate. More specifically, at the June 2021 Title IX Public Hearing and in listening sessions, elementary school and secondary school recipients expressed concern that certain requirements impeded their successful management of the day-to-
Some postsecondary recipients expressed concern that the requirements in the 2020 amendments intruded on their professional judgment and expertise about how best to respond to allegations of student misconduct in their educational environment. A variety of stakeholders, including some recipients, also expressed concerns about the limitations on a recipient's obligation to respond to notice of sexual harassment and the narrowing of the definition of “sexual harassment” from the Department's previous position (current §§ 106.30, 106.44). They suggested the limitations in the 2020 amendments allowed recipients to ignore conduct that could or would limit or deny access to their learning environment based on sex. Similarly, stakeholders expressed concerns that recipients refused to respond to complaints of a hostile environment based on sex in a program or activity because the initial sexually harassing conduct occurred off-campus or outside the United States (current § 106.44). OCR also heard from stakeholders who were concerned that the deliberate indifference standard was an inappropriately narrow standard of responsibility for the administrative enforcement context in light of Title IX's nondiscrimination mandate.
Stakeholders also requested that the Department clarify Title IX's application to issues not currently addressed, or not viewed by the stakeholders as addressed adequately, by the current regulations. In particular, stakeholders requested that the Department specify protections related to discrimination based on sexual orientation and gender identity. These requests noted the historical and ongoing discrimination experienced by LGBTQI+ students, the recent enactment of State laws restricting transgender students from participating in school consistent with their gender identity, and the void created by OCR's withdrawal of its 2016 Dear Colleague Letter on Title IX and Transgender Students. Other stakeholders urged that transgender students must not be permitted to participate in school consistent with their gender identity, either in all or certain circumstances. Stakeholders also requested that the Department clarify that discrimination based on sex characteristics is a form of sex discrimination and, in particular, that Title IX protects intersex students from discrimination. OCR also heard from stakeholders requesting clarification on Title IX's protections against pregnancy discrimination and its prohibition on rules that treat parents differently based on sex. The Department heard more from stakeholders in 2022 in meetings held under Executive Order 12866, after the NPRM was submitted to OMB.
Having considered the comments and other information received in connection with the June 2021 Title IX Public Hearing, 2021 listening sessions, and the 2022 meetings held under Executive Order 12866, the Department's proposed regulations aim to strengthen the current framework, improve clarity for recipients to facilitate their compliance, and better align the Title IX regulations with the nondiscrimination mandate of Title IX, particularly its goal of “provid[ing] individual citizens effective protection against [discriminatory] practices.”
In reviewing the 2020 amendments, the Department also considered its regulations implementing other laws with requirements that parallel or overlap with a recipient's obligations under Title IX. For example, the Department considered the requirements for postsecondary institutions under the 2013 reauthorization of the Violence Against Women Act (VAWA 2013), Public Law 113-4, 304, 127 Stat. 54, 89-92, which amended the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act), 20 U.S.C. 1092(f) (2018). The Clery Act requires institutions of higher education participating in Federal financial aid programs under the Higher Education Act of 1965, 20 U.S.C. 1001
The Department acknowledges that recipients and other stakeholders may have made changes to their policies or procedures to align with the 2020 amendments. For example, schools have been required to revise existing policies and procedures, or adopt new policies and procedures, for the 2020-2021 school year and the current 2021-2022 school year in reliance on the 2020 amendments. Recipients' changes may include—among others—policies and procedures based on the 2020 amendments' adoption of a new definition of “sexual harassment” and “notice” as well as the deliberate indifference standard, mandatory dismissals, the requirement for postsecondary recipients to hold live hearings with cross-examination, and the training of Title IX Coordinators, investigators, decisionmakers, and other staff regarding the new requirements. However, stakeholder feedback from the June 2021 Public Hearing, the 2021 listening sessions, and the 2022 meetings held under Executive Order 12866 indicated that many recipients did not agree with the 2020 definition of “sexual harassment” and had found that some of the procedural requirements issued in 2020 made compliance more difficult for them. Recipients expressed concern that the mandatory dismissal requirements and live hearing and cross-examination requirements were having a chilling effect on students who might otherwise report sex-based harassment. The Department therefore has good reason to believe that many recipients would appreciate the flexibility the proposed regulations would afford them to better fulfill their obligation not to discriminate based on sex in their education programs or activities. For example, the proposed regulations would enable recipients to tailor procedures to be effective at addressing sex discrimination in their educational environment by providing an option to conduct live hearings with cross-examination or have the parties meet separately with the decisionmaker and answer questions submitted by the other party when a credibility assessment is necessary; an option to provide the parties an opportunity to review all relevant evidence instead of being obligated to produce a written investigative report; an option to offer informal resolution when appropriate without having to wait for a complaint to be filed; and an option to dismiss complaints when appropriate rather than an obligation to dismiss in specific circumstances. In addition, some stakeholders indicated that because the current regulations do not cover many forms of conduct that may cause a hostile environment based on sex in their program or activity, they created or repurposed alternative disciplinary policies to address such conduct. Such stakeholders would have discretion under the proposed regulations to keep in place policies and procedures they adopted in reliance on the 2020 amendments or to change course so long as they meet their obligations.
In addition, while the Department recognizes that there may be reliance interests related to the current regulations, the Department's tentative view is that the value of better aligning the regulations with the objectives of Title IX, as reflected in proposed revisions to the regulations, substantially outweighs those interests. The proposed changes would strengthen implementation of Title IX and reduce the occurrence of sex discrimination within federally funded education programs or activities. Sex discrimination remains a serious problem that can derail students from participating and thriving in school. The Department's proposed changes would clarify Title IX's coverage of all forms of sex discrimination, strengthen existing protections, and better position schools to meet their obligation not to discriminate based on sex. The proposed changes would better ensure that schools take prompt and effective action to end sex discrimination, including sex-based harassment, with support for affected students and fair procedures for all. In short, the proposed regulations would reflect the statute's text and case law establishing that Title IX protects students from all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. Moreover, as discussed in the
The Department has considered the interests that stakeholders may have in avoiding further changes to recipient policies and procedures or additional costs that may be required to comply with the proposed regulations. At the same time, the Department has also considered stakeholders' interests in having Title IX regulations that are sufficiently clear to allow for effective implementation and that provide recipients with flexibility and discretion to meet their Title IX obligations and to maintain any policies and procedures that do not conflict with Title IX or the proposed regulations. Based on the information OCR received during the June 2021 Title IX Public Hearing and additional listening sessions, as well as the 2022 meetings held under Executive Order 12866, the Department believes that substantial interests support each change reflected in the proposed regulations, that these changes are designed to ensure full implementation of Title IX's nondiscrimination mandate, and that the benefits of the proposed changes in facilitating that implementation far outweigh the potential interests in maintaining the existing regulations. In each instance in which the Department is proposing to change an existing regulatory requirement, the preamble acknowledges that change when discussing the regulation and explains the Department's reasons for proposing the change. The most significant proposed revisions to the Title IX regulations are summarized below.
The Department is proposing significant revisions to several subcategories of the Title IX regulations. The Department discusses these significant revisions by topic rather than in numerical order. Generally, the Department does not address proposed regulatory changes that are technical or otherwise minor in effect.
First, the Department discusses its proposed changes to existing definitions and its proposed new definitions of terms of general applicability in the regulations (proposed § 106.2), and its proposed provisions regarding the effect of other requirements and preservation of rights (proposed § 106.6). The Department then clarifies that Title IX obligates a recipient to respond to sex discrimination within the recipient's education program or activity in the United States, even if it occurs off-campus, including but not limited to conduct that occurs in a building owned or controlled by a student organization that is officially recognized by a postsecondary institution and conduct that is subject to the recipient's disciplinary authority. It also requires a recipient to respond to a hostile environment based on sex within its education program or activity in the United States, even if sex-based conduct contributing to the hostile environment occurred outside the recipient's education program or activity or outside the United States (proposed § 106.11).
Second, the Department discusses a recipient's obligation to operate its education program or activity free from sex discrimination, and administrative requirements such as the responsibilities of a recipient to
The Department also discusses its proposed definition of “sex-based harassment” (proposed § 106.2) and explains in more detail its proposed changes to the regulations regarding grievance procedures for complaints of sex discrimination (proposed § 106.45), including its proposals to include the basic requirements for grievance procedures such as treating the complainant and respondent equitably (proposed § 106.45(b)(1)); the requirement to objectively evaluate all relevant evidence that is not otherwise impermissible (proposed § 106.45(b)(6) and (7)); the standard of proof for all complaints of sex discrimination (proposed § 106.45(h)(1)); and the requirement that grievance procedures be followed before the imposition of any disciplinary sanctions (proposed § 106.45(h)(4)). The Department also explains proposed bases for discretionary dismissal of a complaint (proposed § 106.45(d)) and the proposed requirement that the recipient have a process for the decisionmaker to adequately assess the credibility of the parties and witnesses to the extent that credibility is in dispute and relevant to evaluating one or more of the allegations of sex discrimination (proposed § 106.45(g)). The Department also describes the additional proposed requirements for postsecondary institutions in cases of sex-based harassment involving a student complainant or student respondent (proposed § 106.46), including the role of an advisor (proposed § 106.46(e)(2)) and revised hearing procedures (proposed § 106.46(g)). The Department states that a recipient will not be deemed to have violated the Title IX regulations solely because the Assistant Secretary would have reached a different determination than the recipient reached based on an independent weighing of the evidence in sex-based harassment complaints (proposed § 106.47).
Third, the Department describes its proposed revisions to the Title IX regulations related to pregnancy or related conditions as well as sex discrimination related to marital, parental, and family status, to provide clarity to recipients about their obligation not to discriminate against students or employees who are pregnant or experiencing pregnancy-related conditions. These proposed revisions aim to ensure that students and employees who are pregnant or experiencing pregnancy-related conditions are not subject to discrimination based on sex in education programs or activities and include revisions to the definitions of “pregnancy or related conditions” and “parental status” (proposed § 106.2) as well as revisions to the regulations on admissions (proposed § 106.21(c)); parental, family, or marital status of students (proposed § 106.40(a)); pregnancy or related conditions of students (proposed § 106.40(b)); employment (proposed § 106.51(b)(6)); parental, family, or marital status of employees (proposed § 106.57(a)); pregnancy or related conditions of employees (proposed § 106.57(b) and (e)); and pre-employment inquiries (proposed § 106.60).
Fourth, the Department proposes to clarify Title IX's scope of application, including nondiscrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity (proposed § 106.10). The Department also proposes clarifying Title IX's general prohibition on sex discrimination in education programs or activities receiving Federal financial assistance (proposed § 106.31(a)). The preamble explains that unless otherwise provided by Title IX or the regulations, in contexts in which a recipient may provide sex-separate programs or rules, such different treatment must not be applied to individuals in a way that would cause more than de minimis harm, which includes adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity (proposed § 106.31(a)(2)).
Fifth, the Department discusses proposed revisions to the prohibition on retaliation (proposed § 106.71) that would build on the current regulations and further clarify what types of conduct would constitute prohibited retaliation, including peer retaliation.
Finally, the Department explains its proposal to delete outdated regulatory provisions (§ 106.2(s) Definition of Transition Plan; § 106.3(c) and (d) Self-evaluation; § 106.15(b) Admissions; §§ 106.16-106.17 Transition Plans; § 106.21(a) Admission; and § 106.41(d) Adjustment period).
It is the Department's intent that the severability clauses set out in §§ 106.9, 106.18 (proposed to be redesignated at § 106.16), 106.24, 106.46 (proposed to be redesignated as § 106.48), 106.62, and 106.72 of the 2020 amendments remain applicable to the proposed changes set out below. As discussed in the 2020 amendments, it is the Department's position that each of the proposed regulations discussed in this preamble would serve an important, related, but distinct purpose. 85 FR 30538. Each provision provides a distinct value to recipients, elementary schools, secondary schools, postsecondary institutions, students, employees, the public, taxpayers, the Federal government, and other recipients of Federal financial assistance separate from, and in addition to, the value provided by the other provisions. To best serve these purposes, the continued application of the severability clauses in the 2020 amendments clarifies that the proposed regulations operate independently of each other and that the potential invalidity of one provision should not affect the other provisions. In addition, the Department intends that any final regulations following these proposed regulations be enforced prospectively and not retroactively.
The Department proposes including all definitions in § 106.2, the original regulatory section containing definitions for all of the Department's Title IX implementing regulations. As part of the 2020 amendments, the Department added a separate definitions section, § 106.30, that included definitions related to a recipient's obligation to address sexual harassment. Because the definitions in that section pertain to a recipient's general obligations to take action to end sex discrimination, the Department proposes moving these definitions to § 106.2.
The Department also proposes to reorganize the definitions at § 106.2. The existing definitions section does not present the definitions alphabetically, which may create confusion for recipients and others. Proposed § 106.2 would reorder the definitions to present them in alphabetical order. The Department also proposes technical edits to accommodate the consolidation of the definitions into § 106.2 and associated numbering changes.
Because the Department proposes consolidating all definitions into § 106.2, the proposed regulatory text would include existing definitions in current § 106.2, as well as definitions that are new to that section. The Department limits its discussion in this preamble to the definitions that the Department proposes adding and the definitions for which the Department is proposing changes that are not exclusively technical in nature.
Immediately below, the Department discusses proposed revisions to definitions and new definitions that apply throughout the Title IX regulations. In later topical sections of this preamble, the Department discusses proposed definitions relevant to those topics.
The proposed revisions would separately define “elementary school” and “secondary school” because there is a provision in the proposed regulations that distinguishes between elementary schools and secondary schools. For consistency with the Title IX statute at 20 U.S.C. 1681(c), which states that Title IX applies to public and private preschools, the proposed definition of “elementary school” also would cover a public or private preschool. The ESEA does not separately define “preschool” and the Department has not previously done so in its Title IX regulations. The Department's position remains that a separate definition of “preschool” is not necessary and that public and private preschools fall within the proposed definition of “elementary school.”
The proposed definition of “secondary school” would also cover an institution of vocational education that serves secondary school students. This addition is necessary to ensure coverage of secondary school students who attend vocational institutions and to align with the definition of “postsecondary institution” in both the current and proposed regulations, which includes institutions of vocational education that serve postsecondary school students. As defined in current § 106.2(o) and proposed § 106.2, an “institution of vocational education” could serve both secondary and postsecondary school students but secondary school students attending institutions of vocational education are unaccounted for in the current definition of “elementary and secondary school.”
The current regulations require a recipient to dismiss a formal complaint of sexual harassment and not use its Title IX grievance process if the conduct did not occur against a person in the United States, even if that conduct contributes to a hostile environment in the recipient's education program or activity in the United States.
After receiving input from stakeholders, the Department has reconsidered its prior interpretation of Title IX's statutory language from the 2020 amendments and proposes revising the current regulations to more clearly and completely describe the circumstances in which Title IX applies. In proposed § 106.11, consistent with 20 U.S.C. 1687, the Department would clarify that an education program or activity includes all of the recipient's operations and that conduct occurring under a recipient's education program or activity would include but is not limited to conduct that occurs in a building owned or controlled by a student organization that is officially recognized by a postsecondary institution and conduct that is “under the school's disciplinary authority.”
The Department's discussion in the preamble to the 2020 amendments regarding Title IX and online platforms used by a recipient would thus remain relevant under the proposed regulations. Specifically, in the preamble to the 2020 amendments the Department explained that the operations of a recipient “may certainly include computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of, the recipient.” 85 FR 30202. The Department further explained that “the factual circumstances of online harassment must be analyzed to determine if it occurred in an education program or activity.”
Under the proposed regulations, consistent with the current regulations, conduct occurring under a recipient's education program or activity would extend to conduct in off-campus settings that are operated or overseen by the school (
In addition, some schools have codes of conduct that address interactions, separate from discrimination, between students that occur off campus. If a school has such a code of conduct, then it may not disclaim responsibility for addressing sex discrimination that occurs in a similar context. If the school responds when, for instance, one student steals from another at an off-campus location, or when a student engages in a nonsexual assault of another student at an off-campus location, it must likewise respond when a student engages in sexual assault or sex-based harassment of another student off campus. Thus, the proposed rule would make clear, as in the 2020 amendments, that whether conduct falls under a recipient's education program or activity for purposes of Title IX is not contingent on the geographic location of the underlying conduct, but rather on whether the recipient exercises disciplinary authority over the respondent's conduct in that context.
During OCR's numerous listening sessions and in the June 2021 Title IX Public Hearing, many stakeholders indicated that the current regulations could be interpreted to exclude conduct that occurs off campus or off school grounds outside of a recipient's education program or activity, or that occurs in a program or activity but outside the United States, even when that conduct creates a hostile environment based on sex in an education program or activity within the United States. They further asserted that Title IX requires a recipient to address a hostile environment based on sex in the recipient's education program or activity, regardless of whether the sex-based harassment contributing to that hostile environment occurred elsewhere. The Department takes seriously these comments and agrees that clarification is needed. After considering this issue and reweighing the facts and circumstances, including this feedback, the Department proposes regulatory language to enforce the full scope of Title IX's nondiscrimination mandate and ensure that recipients provide a nondiscriminatory environment for all students within their programs and activities in the United States. Proposed § 106.11 would clarify that Title IX's prohibition on sex discrimination would apply to a hostile environment under a recipient's education program or activity, even if sex-based harassment contributing to such a hostile environment occurred outside of the recipient's education program or activity or occurred within an education program or activity but outside of the United States.
In the preamble to the 2020 amendments, the Department explained that in the context of a private lawsuit for monetary damages, the Supreme Court applied Title IX's program or activity language to “ `limit a recipient's damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs.' ” 85 FR 30196 (quoting
Indeed, several Federal courts have held that, even for purposes of monetary damages under
The Department's current view is that these decisions are correct in reading
For example, Student A reports that Student B sexually assaulted her while participating in the recipient's study abroad program and both students have now returned to campus in the United States. Student A reports that Student B has been taunting her with sexually suggestive comments about the prior assault since their return to campus. Because of the sexual assault and Student B's continuing conduct, Student A is unable to concentrate or participate fully in her classes and activities where Student B is present. In this scenario, because Student A has alleged a hostile environment based on sex within the recipient's education program or activity within the United States, the recipient would have an obligation to take action to address those allegations. The proposed regulations would require the recipient to provide Student A with appropriate supportive measures and, if the recipient's investigation finds that a hostile environment exists within its education program or activity, take action against Student B after following all applicable grievance procedures.
Evaluating whether a hostile environment exists as a result of conduct that is otherwise not covered by Title IX is a fact-specific inquiry. Consistent with Federal case law, when sex-based harassment occurs outside of the United States or outside of a recipient's education program or activity, it will not always result in a hostile environment that is within a recipient's control. The definition of “sex-based harassment” in proposed § 106.2 would set out the minimum factors that must be considered in determining whether a hostile environment has been created in a recipient's education program or activity. These factors would also apply when determining whether sex-based harassment that occurred outside of a recipient's education program or activity has created a sex-based hostile environment in a recipient's education program or activity. A recipient should also consider in its fact-specific inquiry whether a complainant's encounters with an alleged respondent in the recipient's education program or activity give rise to a hostile environment, even when the incidents of harassment occurred outside of the recipient's education program or activity.
In the circumstances in which sex-based harassment occurs outside a recipient's education program or activity or outside the United States, and the harassment does not contribute to a hostile environment within the recipient's education program or activity, proposed § 106.11 would clarify that Title IX does not apply. For example, Student C reports she was sexually assaulted in a nightclub off campus by a third party who does not live in the area. Student C is now experiencing emotional distress and is unable to attend classes. Because the assault occurred off campus, and the respondent is not a representative of the recipient or otherwise a person over whom the recipient exercises disciplinary authority, the assault did not occur within the recipient's education program or activity. And because Student C is not alleging a hostile environment within the education program or activity due to the respondent's presence or additional harassment she is experiencing, proposed § 106.11 clarifies that a recipient's Title IX obligations would not be implicated. The recipient would still be encouraged to provide supportive measures to Student C and refer Student C to local law enforcement.
Finally, the proposed regulations would also recognize that when sex discrimination other than sex-based harassment occurs outside of a recipient's education program or activity, or outside of the United States, but causes sex discrimination within the recipient's education program or activity, Title IX would require the recipient to address this sex discrimination as well. For example, a student in a recipient's study abroad program complains that he was
To the extent that there may be circumstances in which a conflict exists between a recipient's obligations under Title IX and under FERPA, the Department would maintain the provision in § 106.6(e) that expressly states that the obligation to comply with the Title IX regulations is not obviated or alleviated by the FERPA statute or regulations. 85 FR 30424. As the General Education Provisions Act (GEPA) provides, nothing in that statute shall be construed to “affect the applicability of title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d
Some aspects of the proposed regulations address areas in which recipients may also have obligations under FERPA or its implementing regulations, 34 CFR part 99, for example, provisions regarding the exercise of rights by parents, guardians, or other authorized legal representatives at proposed § 106.6(g); disclosure of supportive measures at proposed § 106.44(g)(5); consolidation of complaints at proposed § 106.45(e); a description of the relevant evidence at proposed § 106.45(f)(4); access to an investigative report or relevant and not otherwise impermissible evidence at proposed § 106.46(e)(6); and notification of the determination of a sex discrimination complaint at proposed §§ 106.45(h)(2) and 106.46(h)(1). The Department is seeking comments on the intersection between the proposed Title IX regulations and FERPA, any challenges that recipients may face as a result of the intersection between the two laws, and any steps the Department might take to address those challenges in the Title IX regulations.
In addition, proposed § 106.6(b) would clarify that nothing in the Department's proposed regulations would preempt a State or local law that provides greater protections to students and does not conflict with these regulations. This clarification would ensure that the proposed regulations appropriately cover the full scope of Title IX while not extending further than the Department's authority to promulgate regulations to effectuate Title IX.
As discussed in the Background section, the Supreme Court explained in
These cases, together with the text of Title IX, make clear that Title IX's prohibition on sex discrimination imposes a legal duty on every covered recipient of Federal funds to operate its education program or activity free from sex discrimination. This legal duty accordingly requires a recipient to respond promptly and equitably when sex discrimination may be taking place within its education program or activity.
The Supreme Court and the Department have long interpreted Title IX to prohibit sexual harassment. In 1981, OCR Director for Litigation, Enforcement and Policy Service Antonio J. Califa issued a policy memorandum to all OCR regional directors advising them that “[s]exual harassment consists of verbal or physical conduct of a sexual nature, imposed on the basis of sex, by an employee or agent of a recipient that denies, limits, provides different, or conditions the provision of aid, benefits, services or treatment protected under Title IX.”
The Supreme Court addressed Title IX's coverage of sexual harassment for the first time in 1992, when it confirmed that a school district could be held liable for monetary damages in cases involving a teacher sexually harassing a student.
Following
OCR published the 1997 Sexual Harassment Guidance in the
In 1998, the Supreme Court held in
The Court specifically and repeatedly stated that the liability standards for sexual harassment established in
In particular, in setting the damages liability standards for recipients, the Court was concerned about the possibility of requiring a school to pay money damages for harassment of which it was not aware and in amounts that exceeded the recipient's level of Federal funding.
Following the
The 2001 Revised Sexual Harassment Guidance did not change the standards that OCR used to determine when prohibited sexual harassment has occurred. Request for Comments on the 2001 Revised Sexual Harassment Guidance, 65 FR 66093. Rather, OCR clarified that “these standards apply to our ability to find a violation and seek corrective action in administrative enforcement of Title IX.”
As noted above, OCR issued subsequent guidance documents on harassment on the basis of sex, including sexual harassment, that built on the concepts from the 1997 Sexual Harassment Guidance and the 2001 Revised Sexual Harassment Guidance.
On November 29, 2018, the Department published a notice of proposed rulemaking to clarify and modify the Title IX regulations. 2018 NPRM. In response to the 2018 NPRM, the Department received more than 124,000 comments expressing a wide variety of views on the proposed regulations. On May 19, 2020, the Department published the 2020 amendments to the Title IX regulations, which went into effect on August 14, 2020. 85 FR 30026.
In the preamble to the 2020 amendments, the Department explained that “[n]either
Notwithstanding this recognition of its distinct administrative authority to enforce Title IX, in the 2020 amendments the Department chose to use the
After extensive review, the Department's current view is that the 2020 amendments do not adequately promote full implementation of Title IX's prohibition on sex discrimination, including sex-based harassment, by a recipient in its education program or activity. For example, the 2020 amendments do not require a postsecondary institution to investigate sexual harassment in its education program or activity, even if its leadership has persuasive evidence that harassment is taking place, unless the person who experienced the harassment (
The Department recognizes in proposed § 106.6(g) that a parent, guardian, or other authorized legal representative may have a legal right to act on behalf of a complainant, including by making a complaint of sex discrimination. This approach is consistent with current § 106.6(g), which states that the Title IX regulations must not be “read in derogation of any legal right of a parent or guardian” to act on behalf of a complainant, including by filing a formal complaint. The Department stated in the preamble to the 2020 amendments that “when a party is a minor or has a guardian appointed, the party's parent or guardian may have the legal right to act on behalf of the party,” although the minor or person with an appointed guardian would be the party (
The current regulations restrict the persons who can make a complaint under the recipient's grievance procedures for complaints of sex discrimination other than sexual harassment to students and employees. 34 CFR 106.8(c). The current regulations permit any complainant, including a student, employee, or third party who was participating or attempting to participate in the recipient's education program or activity at the time of filing, to file a formal complaint alleging sexual harassment. 34 CFR 106.30(a) (definition of “complainant” and “formal complaint”). After considering the issue, the Department's current view is that a third party who was participating or attempting to participate in the recipient's education program or activity when the alleged sex discrimination occurred should be permitted to make a complaint of sex discrimination, including sex-based harassment, under the recipient's grievance procedures as addressed in proposed § 106.45(a)(2). This would be unlike the current regulations, which consider the complainant's participation in the education program or activity at the time of filing the formal complaint. In addition, although the current regulations' limits on who can file a formal complaint address only complaints of sexual harassment, the proposed regulations would address all complaints of sex discrimination, including sex-based harassment. This proposal is consistent with the decision by the U.S. Court of Appeals for the First Circuit in
Current § 106.8(c) requires that a recipient provide notification of its grievance procedures, including how to report or file a complaint of sex discrimination, to the following: applicants for admission and employment; students; parents or legal guardians of elementary and secondary school students; employees; and all unions and professional organizations holding collective bargaining or professional agreements with the recipient.
The proposed definition would clarify that a complaint may be oral or written. The proposed regulations would remove the requirement that the formal complaint contain the complainant's physical or digital signature, or otherwise indicate that the complainant is the person filing the formal complaint.
The proposed definition of “complaint” would not specify who can make a complaint, but this information would be specified in proposed § 106.45(a)(2). As explained in the discussion of proposed § 106.45(a)(2), the Department proposes placing limitations on who may make a complaint of sex-based harassment that obligates a recipient to initiate its grievance procedures due to the nature of those allegations. However, the Department does not propose placing any limitations on who can provide information to the Title IX Coordinator about conduct that may constitute sex discrimination under Title IX, including sex-based harassment. When a Title IX Coordinator is notified about conduct that may constitute sex discrimination under Title IX, including sex-based harassment, they would be required to act under proposed § 106.44.
The current regulations do not provide information about how an individual could request that a recipient initiate its grievance procedures in response to sex discrimination other than sexual harassment. First, the current definition of “formal complaint” applies only to sexual harassment. Second, although current § 106.8(c) requires a recipient to notify individuals of how to make a complaint, the Department did not define the term “complaint” or specify that a complaint is a request to the recipient to initiate its grievance procedures. The current regulations have different requirements
OCR received feedback from stakeholders during the June 2021 Title IX Public Hearing, listening sessions, and the meetings held in 2022 under Executive Order 12866 that expressed concerns that the 2020 amendments created an onerous and cumbersome process for a complainant seeking to request that the recipient initiate its grievance procedures and requesting that the Department streamline the complaint process. Although the current regulations permit a complainant to file a formal complaint by email and using a digital signature,
Based on the feedback received from stakeholders and the current distinction between a complaint of sex discrimination and a formal complaint of sexual harassment, the Department is concerned that the current regulations may have created a barrier for potential complainants to effectively assert their rights under Title IX. It is the Department's current view that additional clarity is needed to ensure that recipients are aware of and can respond appropriately to sex discrimination in their education programs or activities.
The Department proposes creating a single process to receive these requests by replacing the definition of “formal complaint” with a definition of “complaint” to clarify that a complaint would be the mechanism by which an individual may request that a recipient initiate its grievance procedures in response to all forms of sex discrimination. The Department's proposed regulations would define “complaint” more broadly to include either an oral or a written request to the recipient to initiate the recipient's grievance procedures for complaints of sex discrimination under Title IX, as described in proposed § 106.45, and if applicable proposed § 106.46. This revised definition of “complaint” would recognize that a person may seek to make a complaint in a variety of ways and would allow both oral and written complaints, while also no longer requiring a signature.
The proposed regulations would also differ from the current regulations in that they would not require a complaint to be made to the Title IX Coordinator, or to any specific employee of the recipient; a complaint need only be made to the recipient. As explained in greater detail in the discussion of proposed § 106.44(c), the proposed regulations would require a recipient to ensure that its Title IX Coordinator is notified of information about conduct that may constitute sex discrimination under Title IX in the recipient's education program or activity when that information is provided to certain categories of employees. The proposed regulations would also require other categories of employees to, at a minimum, provide the Title IX Coordinator's contact information and information about how to report sex discrimination to any person who provides the employee with information about conduct that may constitute sex discrimination under Title IX. As explained in greater detail in the discussion of proposed § 106.44(f), the proposed regulations would also require a recipient's Title IX Coordinator to take certain steps upon being notified of conduct that may constitute sex discrimination under Title IX. In addition, as explained in greater detail in the discussion of proposed § 106.44(k), a complaint would no longer be required before a recipient could offer to a complainant and respondent its informal resolution process under proposed § 106.44(k); instead, the informal resolution process could be offered and, if accepted, initiated by the recipient when it receives information about conduct that may constitute sex discrimination under Title IX even when no complaint is made.
OCR heard from several stakeholders during the June 2021 Title IX Public Hearing, listening sessions, and the meetings held in 2022 under Executive Order 12866 who requested either reconsideration of the scope of who is deemed to be attempting to participate in the recipient's education program or activity or eliminating the requirement that a complainant must be participating or attempting to participate in the recipient's education program or activity. The Department also considered that such a requirement may be redundant as applied to employee and student complainants who are, based on their enrollment or employment, either participating or attempting to participate in the recipient's education program or activity. After considering an array of stakeholder views and reevaluating the issue, the Department proposes eliminating this requirement for making a complaint of sex discrimination, including sex-based harassment, with respect to a student or employee complainant.
In proposed § 106.45(a)(2), the Department would specify who can make a complaint requesting that the recipient initiate its grievance procedures. Under proposed § 106.45(a)(2)(iv), a third party must be participating in or attempting to participate in the recipient's education program or activity in order to make a complaint requesting that the recipient initiate grievance procedures. The
The proposed definition would clarify that the scope of sex-based harassment includes bases that were not expressly covered under the term “sexual harassment” in current § 106.30(a), including harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
The proposed definition would also include revisions to the scope of conduct described in its second category, which addresses unwelcome conduct on the basis of sex. These proposed revisions would provide factors to consider when determining whether unwelcome sex-based conduct creates a hostile environment in a recipient's education program or activity.
The third category of the proposed definition would still incorporate the definition of “sexual assault” from the Clery Act. The proposed definition would incorporate the definitions of “dating violence,” “domestic violence,” and “stalking” from the Violence Against Women Reauthorization Act of 2022 (VAWA 2022). Instead of including cross-references to statutory provisions in the Clery Act and VAWA 2022, the proposed definition would include language from the statutory definitions themselves to make it clear in the text of the regulations how these terms are defined for purposes of Title IX. The Department proposes incorporating the portion of the definition of “domestic violence” that is relevant to Title IX.
During the June 2021 Title IX Public Hearing and in listening sessions with stakeholders, OCR received requests to clarify that the Title IX regulations apply to both sexual harassment and other forms of harassment based on sex, including harassment based on sexual orientation and gender identity. These requests indicated to the Department that the current definition of “sexual harassment” does not provide adequate clarity as to the scope of harassment covered. Specifically, stakeholders expressed confusion regarding the scope of sexual harassment, including noting that they were receiving questions from their students regarding whether certain forms of harassing conduct are covered under the current definition of “sexual harassment.” Stakeholders also expressed concern that the definition of “sexual harassment” fails to protect many individuals who experience other forms of sex-based harassment due to the limited coverage of the definition.
After reevaluating the issue, the Department proposes revising the regulatory text to make clear that sexual harassment, as well as other forms of sex-based harassment on the bases described in proposed § 106.10, are covered under the Department's Title IX regulations to dispel any confusion regarding the scope of sex-based harassment that is prohibited under Title IX and therefore requires a recipient to respond. The proposed clarifications would more clearly implement the statements made by the Department in the preamble to the 2020 amendments that Title IX's broad nondiscrimination mandate covers all forms of harassment based on sex, including sexual harassment, which has also been OCR's longstanding view.
The Department proposes adding language to the proposed definition of “sex-based harassment” clarifying that conduct that meets the definition of “sex-based harassment” is prohibited under Title IX and therefore a recipient must take action to address it in accordance with proposed § 106.44. This clarification would also serve to distinguish sex-based harassment that is prohibited under Title IX from conduct that may be sex-based harassment under other laws or recipients' policies but does not meet the Title IX regulatory definition of “sex-based harassment.” A recipient may determine that it is obligated to address sex-based harassment that does not meet the definition of “sex-based harassment” prohibited under Title IX; however, nothing in the proposed regulations would require it to do so. This is consistent with the Department's position in the current regulations that even when conduct does not meet the definition of sexual harassment under current 106.30(a), nothing precludes a recipient from addressing the conduct under the recipient's code of conduct or other non-Title IX process.
The Department proposes generally maintaining the language in the first category of the definition of “sexual harassment” in the current regulations with revisions to state that in addition to an employee, an agent or other person authorized by the recipient to provide an aid, benefit, or service under the recipient's education program or activity is also prohibited from engaging in the quid pro quo conduct described in the first category and that quid pro quo harassment may be explicit or implicit.
In response to requests to broaden the scope of quid pro quo harassment to include persons not directly employed by the recipient, the Department explained in the preamble to the 2020 amendments that “the quid pro quo harassment description is appropriately and sufficiently broad because it applies to all of a recipient's employees, so that it includes situations where, for instance, a teacher, faculty member, or coach holds authority and control over a student's success or failure in a class or extracurricular activity,” and “decline[d] to expand the description to include non-employee students, volunteers, or others not deemed to be a recipient's employee.” 85 FR 30148. The Department further stated that it was “persuaded by the Supreme Court's rationale in
The Department is mindful of the Supreme Court's decision in
Because determining whether a person has been authorized to provide aid, benefits, or services as part of a recipient's education program or activity is fact-specific, the Department declines at this time to provide a definitive list of individuals who would qualify but provides examples below to assist a recipient in making this determination for purposes of quid pro quo harassment. For example, some recipients may rely on unpaid volunteers to coach interscholastic athletic teams or club sports teams offered by the recipient. Even though these volunteers are not employed directly by the recipient, unpaid volunteer coaches hold authority and control over a student's participation or performance in an extracurricular activity offered by the recipient. As such, they would qualify as persons who are subject to the prohibition on quid pro quo harassment because they may properly be considered persons authorized by the recipient to provide aid, benefits, or services under the recipient's education program or activity. Similarly, graduate students who teach their own course or serve as a teaching assistant and are responsible for providing instruction and assigning grades in a course (
The Department stated, in the preamble to the 2020 amendments, that quid pro quo harassment could include explicit and implicit conduct but did not expressly make this point in the text of the current regulations. The proposed revisions to the regulatory text would incorporate the principle the Department articulated in the preamble to the 2020 amendments that quid pro quo harassment should be interpreted “broadly to encompass situations where the quid pro quo nature of the incident is implied from the circumstances” and that “quid pro quo harassment applies whether the `bargain' proposed by the recipient's employee is communicated expressly or impliedly.” 85 FR 30147 (footnotes omitted). In addition, the Department proposes retaining the interpretation articulated in the preamble to the 2020 amendments that “quid pro quo harassment does not depend on whether `the student resists and suffers the threatened harm or submits and avoids the threatened harm,' ” to show that the student's ability to participate in or benefit from the school's program has been denied or limited, on the basis of sex in violation of the Title IX regulations.
The Department reviewed its decision to use the standards applicable to private suits for monetary damages as the starting point for the standards used by OCR in its administrative enforcement of Title IX, including the Supreme Court's standard for actionable sexual harassment under Title IX. The Department's tentative view is that it is permitted to depart from the standards set out by the Court for actionable sexual harassment under Title IX because the Court expressly acknowledged the power of Federal agencies, such as the Department, to “promulgate and enforce requirements that effectuate [Title IX's] nondiscrimination mandate,” even in circumstances that would not give rise to a claim for monetary damages.
After considering the issues and reweighing the facts and circumstances, including the views expressed by a variety of stakeholders, the Department proposes retaining the term “unwelcome conduct” from the 2020 amendments, but replacing the definition of “sexual harassment” from
The proposed regulations thus provide that sex-based harassment in category two would cover unwelcome sex-based conduct that is sufficiently severe
In the preamble to the 2020 amendments, the Department acknowledged that it is not legally required to adopt the
The Department's tentative view is that defining “sex-based harassment” in category two using the hostile environment framework will enable the Department to enforce Title IX's nondiscrimination mandate and provide more effective protection against sex discrimination in a recipient's education program or activity because the definition of “sex-based harassment” covers a broader range of sexual misconduct than that covered under the definition of “sexual harassment” in the current regulations. The Department's tentative view is also
The Department's proposal to require that the conduct be “severe or pervasive” as opposed to “severe, persistent, or pervasive” is consistent with the Court's opinion in
The Department's proposed regulatory language is consistent in many respects with the principles articulated in the preamble to the 2020 amendments, which explained the variety of situations that would be covered under the current regulations. There the Department explained that a complainant does not need to have been “entirely, physically excluded from educational opportunities,” 85 FR 30169, and “no specific type of reaction to the alleged sexual harassment is necessary to conclude” that the complainant was effectively denied equal access to the recipient's education program or activity,
Consistent with the proposed hostile environment category of sex-based harassment discussed above, the offensiveness of a particular expression as perceived by some persons, standing alone, would not be a legally sufficient basis to establish a hostile environment under Title IX. In addition, a recipient must formulate, interpret, and apply its rules in a manner that respects the legal rights of students and employees when taking action to end sex-based harassment that creates a hostile environment. For instance, although the First Amendment may prohibit a recipient from restricting the rights of students to express opinions about one sex that may be considered derogatory, the recipient can affirm its own commitment to nondiscrimination based on sex and take steps to ensure that competing views are heard. The age of the students involved and the location or forum in which such opinions are expressed may affect the actions a recipient can take consistent with the First Amendment.
After considering this issue, including the concerns expressed by stakeholders, the Department's tentative view is that, while not required to do so, it is appropriate to more closely align the hostile environment category of “sex-based harassment” in the context of OCR's administrative enforcement of Title IX with how hostile environment sexual harassment is defined by courts and the EEOC under Title VII in the employment context given that recipients must comply with both laws and both Title VII and Title IX cover employees. The proposed hostile environment framework under Title IX is more similar to the definition of “hostile environment” under Title VII than the definition of “sexual harassment” under the current Title IX regulations. The Department's tentative view is that this alignment will better facilitate recipients' ability to comply with their obligations under the Department's proposed Title IX regulations, while also recognizing recipients' obligations under Title VII. Also, and most fundamentally as discussed above, the proposed hostile environment framework will better enable the Department to implement Title IX's prohibition on sex discrimination. In addition, as explained in the discussion of hostile environment factors, whether unwelcome sex-based conduct has created a hostile environment is a fact-specific determination based on the totality of the circumstances, which enables recipients to take into consideration the characteristics of the parties involved, including whether they are students or employees, in making the determination. Although the Department proposes more closely aligning the definition of “sex-based harassment” under Title IX with the definition of “sexual harassment” under Title VII, a recipient must still be able to make individualized determinations whether certain conduct constitutes prohibited sex-based harassment and may conclude that certain conduct between employees is not prohibited while the same conduct between students is prohibited and vice versa.
As explained in the discussion of the Framework for Grievance Procedures for Complaints of Sex Discrimination (Section II.F), the Department continues to recognize there are differences between recipients' relationships with their employees and their students. However, the Department does not view these differences as relevant for the analysis of the hostile environment category of sex-based harassment in OCR's administrative enforcement of Title IX, and the Department thus proposes that the same analysis of what constitutes hostile environment sex-based harassment should apply regardless of whether the persons involved in the sex-based harassment are students or employees. The Department's tentative position is that although a recipient's grievance procedures may appropriately vary to ensure an equitable response to complaints involving students and those involving only employees in the postsecondary setting, particularly in light of Title VII's protections for
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The current regulations incorporate the statutory definitions of “sexual assault” from the Clery Act and “dating violence,” “domestic violence,” and “stalking” from the Violence Against Women Reauthorization Act of 2013 through cross-references to those statutes. VAWA 2022 renumbered the definitions of “dating violence” and “stalking” and renumbered and made substantive changes to the definition of “domestic violence.” Public Law 117-103.
The Department proposes to include in the proposed definition of “sex-based harassment” (§ 106.2) the text of the definitions of “sexual assault” in the Clery Act at 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” in VAWA 2022 at 34 U.S.C. 12291(a)(11), and “stalking” in VAWA 2022 at 34 U.S.C. 12291(a)(36), instead of merely including cross-references to the applicable provisions in VAWA 2013 and the Clery Act. In addition, the Department proposes explicitly setting out how “domestic violence” would be defined by incorporating relevant language from the definition of “domestic violence” in VAWA 2022 at 34 U.S.C. 12291(a)(12). The Department's proposed definition of “domestic violence” would not include all of the language from the definition of “domestic violence” in VAWA 2022 because in the Department's current view, some of the VAWA 2022 definition of “domestic violence” is not applicable to Title IX. The Department, therefore, proposes including the specific portions of the VAWA 2022 definition of “domestic violence” that are applicable to Title IX to avoid confusion given the expanded definition in the VAWA 2022 reauthorization, which added “in the case of victim services, includes the use or attempted use of physical abuse or sexual abuse, or a pattern of any coercive behavior committed, enables or solicited to gain or maintain power and control over a victim, including verbal, psychological, economic, or technological abuse that may or may not constitute criminal behavior.” However, omitting this language does not create a substantive change to the VAWA 2022 definition of “domestic violence” for Title IX purposes. The Department also does not propose any substantive changes to the content of the definitions of “sexual assault,” “dating violence,” and “stalking.” The definitions of those terms are the same as the definitions that were incorporated by cross-reference to the Clery Act and VAWA 2013 in the definition of “sexual harassment” in the current regulations. The Department's current position is that including the language from the statutory definitions themselves in the proposed definition of “sex-based harassment” as opposed to including cross-references to the Clery Act and VAWA will be helpful for recipients by making it clear how these terms are defined for purposes of Title IX.
During the June 2021 Title IX Public Hearing and in listening sessions, OCR heard from stakeholders that there has been some confusion regarding the reference in the current Title IX regulations to the Clery Act's statutory definition of sexual assault. The Department similarly heard about this confusion during meetings held in 2022 under Executive Order 12866. Specifically, stakeholders conveyed confusion because the Clery Act's statutory definition of “sexual assault,” which is referenced in the Title IX regulations, refers to forcible and non-forcible sex offenses, but the FBI has retired those terms and those terms are not included in the definition of “sexual assault” in the Department's Clery Act regulations. The Department notes that to dispel this confusion, all recipients may find it useful to consult the Department's Clery Act regulations, discussed below, for additional information about the Clery Act's definition of “sexual assault,” although only postsecondary institutions are subject to the Clery Act.
As explained above, current and proposed Title IX regulations adopt the Clery Act's statutory definition of the term “sexual assault,” 20 U.S.C. 1092(f)(6)(A)(v), which that Act defines as “an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting [UCR] system of the Federal Bureau of Investigation [FBI].” The FBI UCR previously consisted of two crime reporting systems: the Summary Reporting System (SRS) and the National Incident-Based Reporting System (NIBRS). The current Clery Act regulations, 34 CFR 668.46(a) and 34 CFR part 668, subpart D, appendix A, define sexual assault as an offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI's UCR program and direct recipients to look to the SRS for a definition of “rape” and to the NIBRS for definitions of “fondling,” “statutory rape,” and “incest” as the offenses falling under sexual assault. The Department notes that although the FBI retired the SRS and transitioned to using only the NIBRS in January 2021, the Clery Act regulations, including those regulations' definition of “sexual assault,” remain in effect and may be useful for recipients to consult. The Department stated in the preamble to the 2014 Clery Act NPRM that the definition of “sexual assault” in the Clery Act regulations reflects the definition of “sexual assault” in the Clery Act statute, but the Clery Act regulations remove “references to forcible and nonforcible sex offenses and identify the sex offenses that sexual assault would include to make the definition clear.” 79 FR 35418, 35427 (June 20, 2014). The Department explained that it was removing the terms “forcible” and “nonforcible” from the definition of “sexual assault” “to combat the suggestion that a sex offense has not occurred if physical force was not used.”
The current regulations incorporate the concept of relevance into several provisions, specifically:
• Recipients must conduct an objective evaluation of all relevant evidence (§ 106.45(b)(1)(ii));
• Recipients must train investigators on issues of relevance (§ 106.45(b)(1)(iii));
• Recipients must create an investigative report that fairly summarizes relevant evidence (§ 106.45(b)(5)(vii));
• Recipients must not restrict the ability of either party to gather and present relevant evidence (§ 106.45(b)(5)(iii));
• Postsecondary institutions must ensure that each party's advisor has the ability to ask the other party and any witnesses all relevant questions and follow-up questions, and that only relevant cross-examination and other questions may be asked of a party or witness (§ 106.45(b)(6)(i));
• For all other institutions, including elementary and secondary schools, recipients must provide parties with the opportunity to submit written, relevant questions to the other party (§ 106.45(b)(6)(ii)); and
• For all recipients, the decisionmaker must exclude oral or written questions that are not relevant and explain any decision to exclude a question as not relevant (§ 106.45(b)(6)(i) and (ii)).
In addition, the proposed regulations, at § 106.45(b)(7), would set out three categories of evidence, including records, that would be impermissible (
In connection with the June 2021 Title IX Public Hearing, OCR received comments about the difficulty of making relevancy determinations without a regulatory definition. Notwithstanding the Department's instruction in the preamble to the 2020 amendments to use the plain and ordinary meaning of the term “relevant,” OCR continued to receive requests for a definition in connection with the June 2021 Title IX Public Hearing. After considering the issue and reweighing the facts and circumstances, including these continued requests, the Department proposes adding a definition of “relevant” to the proposed regulations. In light of the varying size, structure, and expertise of recipients, and because relevancy determinations are an integral part of a recipient's grievance procedures, the Department proposes defining “relevant” within the regulatory text to provide clarity for recipients, students, and others involved in a recipient's grievance procedures, and to assist those recipients that may not have substantial experience applying this legal concept.
The Department proposes setting out in the regulations the general principle that questions and evidence are relevant when they are related to the allegations of sex discrimination under investigation as part of a recipient's grievance procedures. Although the Department drew a distinction in the preamble to the 2020 amendments between evidence that is directly related to the allegations and relevant evidence,
As explained in greater detail in the discussion of proposed § 106.45(b)(7), the Department also proposes identifying three categories of evidence, as well as questions seeking this evidence, as impermissible regardless of relevance. The current regulations include similar protections against any use of evidence in these three categories but do so in several different provisions. The Department proposes moving these provisions to proposed § 106.45(b)(7) for ease of reference and to make clear to recipients and others that these types of evidence are completely excluded from a recipient's grievance procedures. As explained in greater detail in the discussion of proposed § 106.45(b)(7), the Department also proposes minor changes to the three types of evidence that are not permitted regardless of relevance.
First, proposed § 106.45(b)(7)(i) would provide that evidence that is protected under a privilege as recognized by Federal or State law (
Second, proposed § 106.45(b)(7)(ii) would provide that a party's records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party would not be permitted and must not be accessed, considered, disclosed, or otherwise used in the grievance procedures without the party's consent for use in the recipient's grievance procedures. Any consent must be voluntary and in writing. A similar prohibition is included at current § 106.45(b)(5)(i).
Third, proposed § 106.45(b)(7)(iii) would provide that evidence related to
The Department would recognize in proposed § 106.6(g) that a parent, guardian, or other authorized legal representative may have a legal right to act on behalf of a respondent. This approach is consistent with current § 106.6(g), which states that the Title IX regulations must not be “read in derogation of any legal right of parent or guardian” to act on behalf of a respondent. As explained in the preamble to the 2020 amendments, although the student would be the respondent, in such situations involving a minor, “the parent or guardian, must be permitted to exercise the rights granted to the party . . . whether such rights involve requesting supportive measures or participating in the process outlined in the recipient's grievance process.” 85 FR 30453. The Department further explained in the preamble to the 2020 amendments, that “the parent or guardian must be permitted to accompany the student to meetings, interviews, and hearings during a grievance process to exercise rights on behalf of the student, while the student's advisor of choice may be a different person from the parent or guardian.”
The Department also notes that, consistent with the current regulations, a third party may be a respondent to a complaint of sex discrimination, including sex-based harassment, under these proposed regulations. The Department highlighted examples of a recipient's response to complaints involving third-party complainants and respondents in the preamble to the 2020 amendments and explained that the “regulations require a recipient to respond to sexual harassment whenever the recipient has notice of sexual harassment that occurred in the recipient's own education program or activity, regardless of whether the complainant or respondent is an enrolled student or an employee of the recipient.”
The current regulations do not define “disciplinary sanctions” or “remedies.” The term “remedies” is used in current § 106.45(b)(i), which states that a recipient must treat “the complainant and respondent equitably by providing remedies to a complainant where a determination of responsibility for sexual harassment has been made against the respondent, and by following a grievance process that complies with this section before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent.” The current regulations explain that remedies “must be designed to restore or preserve equal access to the recipient's education program or activity” and may include the same individualized services described in § 106.30 as supportive
The Department proposes retaining the current definition of “supportive measures” as non-disciplinary, non-punitive, individualized measures, offered as appropriate, as reasonably available, without unreasonably burdening a party, and without fee or charge to the complainant or respondent, with some clarifying amendments. In addition, the Department proposes moving the following provisions from the definition of “supportive measures” to other provisions in the proposed regulations: the range of supportive measures to proposed § 106.44(k)(1); and the Title IX Coordinator's obligation to offer and coordinate supportive measures to proposed § 106.44(f)(3). A recipient's obligation to maintain as confidential any supportive measures it provides would be moved to proposed § 106.44(g)(5) and modified to permit a recipient to provide information about supportive measures to persons other than the complainant or respondent as necessary to provide the measure, or to a party only if necessary to restore or preserve the other party's access to the recipient's education program or activity. Finally, the Department proposes revising the definition to clarify that supportive measures may be offered to restore or preserve that party's access to the recipient's education program or to provide support during the recipient's grievance procedures in § 106.45, and if applicable § 106.46, or during the informal resolution process in § 106.44(k). The Department would also clarify that supportive measures can include temporary measures that burden a respondent during the pendency of a grievance procedures, but only when such measures are imposed for non-punitive and non-disciplinary reasons and are designed to protect the safety of the complainant or the recipient's educational environment. And, as explained in greater detail in the discussion of proposed § 106.44(g), the Department proposes including additional provisions to guide the coordination of supportive measures, including the requirement that these temporarily burdensome measures may be imposed only if the respondent is given the opportunity to seek modification or reversal of them.
The Department proposes defining “disciplinary sanctions” as consequences imposed on a respondent following a determination that the respondent violated the recipient's prohibition on sex discrimination. As in the current regulations, the Department's proposed definition of “disciplinary sanctions” would recognize that a recipient must follow grievance procedures consistent with regulatory requirements before imposing disciplinary sanctions on a respondent. The proposed definition would encompass disciplinary sanctions applied when a recipient determines that the respondent has violated any aspect of the recipient's prohibition on sex discrimination after following grievance procedures under proposed § 106.45, and if applicable proposed § 106.46. Under the proposed regulations, disciplinary sanctions may be applied to a respondent who is a student, employee, or third party.
Finally, the Department proposes including a definition of “remedies” in § 106.2 to clarify that remedies are measures provided, as appropriate, to a complainant or any other person the recipient identifies as having had equal access to the recipient's education program or activity limited or denied by sex discrimination. The proposed definition would also clarify that remedies are designed to restore or preserve access to the recipient's education program or activity after a recipient determines that sex discrimination occurred.
• Supportive measures are intended to preserve or restore a complainant's or respondent's access to the recipient's education program or activity and may be provided to the complainant or respondent, as appropriate, after the Title IX Coordinator has been notified of conduct that may constitute sex discrimination under Title IX;
• Disciplinary sanctions are consequences imposed on a respondent in response to a determination that a respondent violated the recipient's prohibition on sex discrimination and may be applied to a respondent only after a recipient has made this determination; and
• Remedies are intended to preserve or restore access to the recipient's education program or activity and may be provided to a complainant or other person after a recipient determines that sex discrimination occurred, including when a recipient engages in sex discrimination through its own action or inaction.
The Department also proposes that a recipient must offer supportive measures, as appropriate, to a complainant or respondent for any type of conduct that constitutes sex discrimination, including but not limited to sex-based harassment and retaliation. The Department proposes retaining the language that supportive measures are designed to restore or preserve a party's access to the recipient's education program or activity. At the same time, the Department proposes clarifying that a supportive measure that may burden a respondent during the pendency of a grievance procedure may be imposed as a temporary supportive measure, but only when such a supportive measure is imposed for non-punitive and non-disciplinary reasons and is designed to protect the safety of the complainant or the recipient's educational environment and, as the discussion of proposed § 106.44(g) clarifies, only if the respondent is given an opportunity to seek modification or reversal of such a
The Department also proposes adding to the existing definition of “supportive measures” that, in addition to the purposes set out in the current regulations and discussed above, supportive measures that do not burden the respondent may be necessary to provide a party with support through the recipient's grievance procedures in proposed § 106.45, and if applicable § 106.46, as well as through the informal resolution process in proposed § 106.44(k). This addition to the existing definition acknowledges that a party may need supportive measures in order to participate fully in and have equal access to a recipient's grievance procedures, whether formal or informal.
The Department proposes moving the list of examples of supportive measures from the definition of “supportive measures” to proposed § 106.44(g)(1), which would require a Title IX Coordinator, upon being notified of conduct that may constitute sex discrimination under Title IX, to offer supportive measures to complainants and, if appropriate, respondents. As explained in the discussion of that section, the list is intended to be illustrative and non-exhaustive. In addition, the Department proposes removing from the definition of “supportive measures” that a “recipient must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the recipient to provide the supportive measures” and moving this clarification of a recipient's obligation to maintain the confidentiality of supportive measures that it provides, subject to limited exceptions, to proposed § 106.44(g)(5).
Finally, the Department proposes removing from the definition of “supportive measures” the requirement that the Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures. Instead, the Department proposes moving this requirement to proposed § 106.44(g)(6), which would state that a Title IX Coordinator would be responsible for offering and coordinating supportive measures.
The proposed definition of “disciplinary sanctions” explains that disciplinary sanctions are consequences imposed on a respondent for violating the recipient's prohibition on sex discrimination, but it does not specify the consequences a recipient can or must impose. The proposed definition of “disciplinary sanctions” would apply to all determinations that a respondent has violated the recipient's prohibition on sex discrimination. In contrast, the current regulations address disciplinary sanctions only in relation to sexual harassment, following a grievance process under § 106.45 in response to a formal complaint of sexual harassment. The proposed definition would accord with the Department's intent to enable full implementation of Title IX's purpose. Consistent with the current regulations, the proposed regulations would not permit a recipient to impose disciplinary sanctions on a respondent prior to the conclusion of the grievance procedures because imposing a non-temporary or punitive consequence before reaching a determination would be contrary to the requirement to have an adequate, reliable, and impartial investigation and resolution of complaints under proposed § 106.45(f) or the requirement to include a presumption that the respondent is not responsible for the alleged conduct until a determination whether sex discrimination occurred is made at the conclusion of the recipient's grievance procedures for complaints of sex discrimination under proposed § 106.45(b)(3).
The Department's proposed definition would also ensure that remedies are available to restore and preserve access to the educational environment when any form of sex discrimination, not only sexual harassment, disrupts that educational environment. For example, following a determination that a teacher retaliated against a student who made a Title IX complaint by disciplining that student in violation of the recipient's prohibition on sex discrimination, that student may be eligible for remedies, such as changes to the student's transcript to remove the disciplinary notation, or a classroom change so that the student is no longer in that teacher's class.
Moreover, the Department recognizes that persons other than the complainant who are participating or attempting to participate in a recipient's education program or activity where sex discrimination occurred may also have their access to the education program or activity limited or denied as a result of that sex discrimination. For this reason, the Department proposes clarifying in the regulations that these individuals may be able to receive remedies. For example, if a high school coach engages
The proposed regulations also recognize that remedies may be appropriate when the recipient's own action or inaction in response to an allegation of sex discrimination resulted in a distinct Title IX violation. For example, if a student reported to the Dean of Students that another student sexually assaulted them on campus and the recipient failed to take the necessary action, the recipient's inaction would likely violate Title IX.
Examples of possible measures a recipient may need to offer a student to remedy the effects of sex-based harassment, to remedy the additional harm caused by a recipient's action or inaction, or to restore or preserve a student's continued access to a recipient's education program or activity after a determination that sex-based harassment occurred could include: ensuring that a complainant can move safely between classes and while at school or on campus such as by providing a campus escort or allowing a student to park in the teacher's parking lot; making changes to class schedules and extracurricular activities to ensure the complainant and respondent are separated; making adjustments to student housing; providing services including medical support and counseling; providing academic resources and support; reviewing any disciplinary actions taken against the complainant to determine whether there is a causal connection between the sex-based harassment and the misconduct; providing reimbursement for professional counseling services; making tuition adjustments; and any other remedies it deems appropriate.
Remedies provided following a determination that sex discrimination occurred may include measures that were provided as supportive measures during the pendency of the investigation. A temporary restriction on contact or removal from an activity that was imposed as a supportive measure thus may be imposed as a remedy after a finding that sex discrimination occurred if it would be necessary to preserve or restore the complainant's access. Because the remedy would be instituted following a determination that sex discrimination occurred, its function would be to remedy past discrimination rather than provide a temporary protection of the complainant's access while the grievance procedures are underway.
Some actions taken by a recipient could also serve as both a remedy and a disciplinary sanction,
Neither remedies nor disciplinary sanctions would be available under informal resolution in proposed § 106.44(k) because there would be no final determination that sex discrimination occurred in the informal resolution process. As described in greater detail in the discussion of proposed § 106.44(k), the respondent may agree to terms of a voluntary agreement that may otherwise constitute remedies or disciplinary sanctions had the recipient determined that sex discrimination occurred under the recipient's grievance procedures.
The Department's position remains, as stated in the preamble to the 2020 amendments, that “the definition of what constitutes consent for purposes of sexual assault within a recipient's educational community is a matter best left to the discretion of recipients, many of whom are under State law requirements to apply particular definitions of consent for purposes of campus sexual misconduct policies.” 85 FR 30124. For these reasons, in the 2020 amendments, the Department “decline[d] to impose a federalized definition of consent for Title IX purposes” despite requests by some stakeholders to do so.
The Department proposes removing language from the existing provision that requires a recipient to provide the contact information for its Title IX Coordinator and that includes specific instructions for how to report sex discrimination to the Title IX Coordinator. Instead, the Department proposes moving the requirement that a recipient must provide notice of nondiscrimination, which must include the contact information for the Title IX Coordinator, how to report information that may constitute sex discrimination under Title IX, how to make a complaint of sex discrimination, and how to locate the recipient's grievance procedures, to proposed § 106.8(c).
By having one Title IX Coordinator oversee designees, the Title IX Coordinator would ensure consistent Title IX compliance across the recipient's education program or activity. This structure may also help the Title IX Coordinator identify trends across multiple programs or activities of the recipient and coordinate training or educational programming responsive to those trends. For example, if students at three different schools report sex-based harassment on the school bus, the Title IX Coordinator, who is aware of each discrete incident, may realize that these incidents are not isolated, but rather, part of a larger trend indicating a need for better training, supervision, or staffing on school buses across the district.
In addition, this oversight structure is consistent with the view the Department expressed in the preamble to the 2020 amendments, which stressed that a recipient must ensure that a Title IX Coordinator is not “designated `in name only' ” and instead is fully authorized to coordinate a recipient's efforts to comply with Title IX. 85 FR 30464. A recipient must ensure that the Title IX Coordinator is effective in this role by ensuring that the Title IX Coordinator has the appropriate authority, support, and resources to coordinate the
As part of its proposed restructuring of § 106.8(a) through (c), the Department proposes moving the specific requirements in current § 106.8(b) regarding the persons entitled to receive notification of the recipient's notice of nondiscrimination as well as the publications in which a recipient must include its notice of nondiscrimination to proposed § 106.8(c) and 106.8(c)(2), respectively.
The Department's proposed revisions would apply proposed § 106.45 as the framework for all complaints of sex discrimination, including sex-based harassment, for all recipients. The Department proposes additional requirements in proposed § 106.46 for grievance procedures that would apply only to complaints of sex-based harassment at postsecondary institutions in which at least one party is a student. Rather than referring to the grievance procedures for complaints of sexual harassment as a grievance “process,” the Department proposes making a non-substantive change to refer to the procedures required under both proposed §§ 106.45 and 106.46 as grievance “procedures,” consistent with the language used in proposed §§ 106.45 and 106.46.
As with proposed § 106.8(b)(1), under proposed § 106.8(b)(2), a recipient may adopt the required grievance procedures by following its typical policy approval
Proposed § 106.8(c) would require a recipient to provide a notice of nondiscrimination to the same individuals to whom notice must be provided under current § 106.8(a): students; parents, guardians or other authorized legal representatives of elementary school and secondary school students; employees; applicants for admission and employment; and all unions and professional organizations holding collective bargaining or professional agreements with the recipient. The Department proposes a minor change to include “other authorized legal representatives of elementary school and secondary school students” to the group of individuals entitled to receive the notice of nondiscrimination. Proposed § 106.8(c)(1) would further require a recipient to include the following specific information in its notice of nondiscrimination:
• A statement that the recipient does not discriminate on the basis of sex and prohibits sex discrimination in any education program or activity that it operates, as required by Title IX and its regulations, including in admission (unless subpart C of part 106 does not apply) and employment (proposed § 106.8(c)(1)(i));
• A statement that inquiries about the application of Title IX and the regulations to the recipient may be referred to the recipient's Title IX Coordinator, to the Office for Civil Rights, or to both (proposed § 106.8(c)(1)(ii));
• The name or title, office address, email address, and telephone number of the recipient's Title IX Coordinator (proposed § 106.8(c)(1)(iii));
• How to locate the recipient's nondiscrimination policy under proposed § 106.8(b)(1) (proposed § 106.8(c)(1)(iv)); and
• How to report information about conduct that may constitute sex discrimination under Title IX, how to make a complaint of sex discrimination under the regulations, and how to locate the recipient's grievance procedures under proposed § 106.8(b)(2), § 106.45, and if applicable § 106.46 (proposed § 106.8(c)(1)(v)).
In proposed § 106.8(c)(2)(i), the Department would provide that a recipient must prominently include all elements of its notice of nondiscrimination set out in paragraphs (c)(i) through (v) in various materials consistent with the existing provision, as well as in each announcement, bulletin, and application form that it makes available to persons entitled to notification under proposed § 106.8(c) or that are used for recruiting students and employees. In proposed § 106.8(c)(2)(ii), the Department proposes adding a provision that, if necessary due to the format or size of any publication referenced in § 106.8(c)(2)(i), the recipient may instead comply with § 106.8(c)(2) by including in those publications a statement that the recipient prohibits sex discrimination in any education program or activity that it operates and that individuals may report concerns or questions to the Title IX Coordinator, and providing the location of the notice on the recipient's website.
The Department proposes moving to proposed § 106.8(c)(1)(i) the requirement in current § 106.8(b) that a recipient include in its notice of nondiscrimination a statement that the recipient does not discriminate on the basis of sex in its education program or activity, that it is required by Title IX not to discriminate in such a manner, and that it also prohibits sex discrimination in admission (unless subpart C of part 106 does not apply) and employment. The Department also proposes incorporating with slight modifications the requirement from current § 106.8(b)(1) into proposed § 106.8(c)(1)(ii) that a recipient notify the persons entitled to receive a notification under § 106.8(c) that inquiries about the application of Title IX and the regulations may be made to the recipient's Title IX Coordinator, to the Office for Civil Rights, or to both. Current § 106.8(b)(1) refers to the “Assistant Secretary.” The Department proposes changing this reference to “the Office for Civil Rights” to afford greater clarity for recipients and all individuals entitled to receive such notification that they may contact OCR—in addition to or instead of contacting the recipient—with any inquiries about Title IX or the regulations.
The Department proposes moving the requirement that a recipient provide notice of the name or title, office address, email address, and telephone number of its Title IX Coordinator from current § 106.8(a) to proposed § 106.8(c)(1)(iii). The proposed regulations would not prohibit a recipient from also providing the contact information of designees. The Department's current view is that it will be less confusing for recipients and all persons entitled to receive notice of this information if it is included in a single notice of nondiscrimination.
In addition, the Department proposes requiring a recipient to include in its notice of nondiscrimination and grievance procedures information such as a web address, a direct link, or an explanation of how a hard copy of the recipient's nondiscrimination policy and grievance procedures may be obtained. By including this information, the Department would ensure that all persons entitled to notice of this information know how they can locate a recipient's nondiscrimination policy and grievance procedures on the recipient's website or how they may obtain a hard copy of the nondiscrimination policy and grievance procedures.
Finally, the Department proposes requiring a recipient to explain in its notice of nondiscrimination how to report information about conduct that may constitute sex discrimination under Title IX, how to make a complaint of sex discrimination under the regulations, and how to locate the recipient's grievance procedures under § 106.45, and if applicable § 106.46. The Department recognizes that some individuals may wish to report conduct that may constitute sex discrimination under Title IX without making a complaint that would initiate a recipient's grievance procedures. To afford the opportunity for this type of reporting, the Department proposes requiring a recipient to explain in its notice of nondiscrimination that reporting such conduct to a recipient's Title IX Coordinator or to specific employees as described in proposed § 106.44(c), would obligate a recipient to require its Title IX Coordinator to take further action consistent with proposed § 106.44(f).
To ensure that individuals who wish to make a complaint that initiates a recipient's grievance procedures know how to do so, the Department proposes that a recipient include in its notice of nondiscrimination clear information about sex discrimination and how to make a complaint about such discrimination, including how to locate a recipient's grievance procedures so that a potential complainant understands how the process will work if initiated. As the Department explained in the preamble to the 2020 amendments, it is important to ensure that “people affected by a recipient's grievance procedures” know about the grievance procedures and how to initiate them. 85 FR 30472-73. The Department further emphasizes that grievance procedures for investigating and resolving sex discrimination complaints cannot be prompt or equitable unless the parties whose rights are addressed through the grievance procedures have equitable access to them. At a minimum, this means that the parties must know that a recipient's grievance procedures exist, how they work, and how to make a complaint. Therefore, a recipient must ensure that its grievance procedures are widely disseminated and written in clear, accessible, easily understood language that is tailored to the age and background of those impacted by the grievance procedures.
Although proposed § 106.8(c)(1)(v) is similar in substance to current § 106.8(c), which requires a recipient to provide persons entitled to a notification under § 106.8(a) notice of the recipient's grievance procedures including how to report or file a complaint of sex discrimination, how to report or file a formal complaint of sexual harassment, and how the recipient will respond, the Department proposes changes consistent with the rest of its proposed regulations. Specifically, proposed § 106.8(c)(1)(v) would reflect the removal of the formal complaint requirement and instead specify that a recipient provide notice of its grievance procedures under proposed §§ 106.8(b)(2), 106.45, and if applicable 106.46, to persons entitled to a notification under § 106.8(c), and that notice include how to report information about conduct that may constitute sex discrimination under Title IX or make a complaint of sex discrimination. The Department also proposes eliminating the requirement that the notice state how the recipient will respond because it is redundant. Persons entitled to notice would already be informed of the recipient's grievance procedures under proposed §§ 106.8(b)(2), 106.45, and if applicable 106.46, which would explain the recipient's process for responding to complaints.
In light of the different types of materials a recipient may use in connection with recruitment (such as pamphlets, flyers, or postcards), and the fact that some of these are space-limited, the Department proposes minimizing the burden on a recipient by allowing an option for the recipient to comply with respect to these publications by providing a website reference to where the notice of nondiscrimination is found under proposed § 106.8(c)(2)(ii). This option would not apply to materials on websites and, in the vast majority of cases, would not apply to printed publications such as handbooks or catalogs, since those would have sufficient space to include at least one single and complete reference to the notice of nondiscrimination in at least one location on the website or in the handbook or catalog.
Proposed § 106.8(d)(1) would require that all employees be trained on the recipient's obligation to address sex discrimination in its education program or activity, the scope of conduct that constitutes sex discrimination, including the proposed definition of “sex-based harassment,” and all applicable notification and information requirements under proposed §§ 106.40(b)(2) and 106.44.
Proposed § 106.8(d)(2) would require investigators, decisionmakers, and other persons who are responsible for implementing the recipient's grievance procedures or have the authority to modify or terminate supportive measures under proposed § 106.44(g)(4) to be trained, to the extent related to their responsibilities, on each of the following:
• The topics listed in proposed § 106.8(d)(1);
• The recipient's obligations under proposed § 106.44;
• The recipient's grievance procedures under proposed § 106.45, and if applicable proposed § 106.46;
• How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias; and
• The meaning and application of the term “relevant,” in relation to questions and evidence, and the types of evidence that are impermissible regardless of relevance under proposed § 106.45, and if applicable proposed § 106.46.
Proposed § 106.8(d)(3) would require facilitators of an informal resolution process as described in proposed § 106.44(k) to be trained on the topics listed in proposed § 106.8(d)(1), the rules and practices associated with the recipient's informal resolution process, and on how to serve impartially, including by avoiding conflicts of interest and bias.
Proposed § 106.8(d)(4) would require the Title IX Coordinator and any designees to be trained on:
• All of the topics listed in proposed § 106.8(d)(1) through (3);
• Their specific responsibilities under §§ 106.8(a), 106.40(b)(3), 106.44(f), and 106.44(g);
• The recipient's recordkeeping system and the requirements of § 106.8(f); and
• Any other training necessary to coordinate the recipient's compliance with Title IX.
Proposed § 106.8(d)(1) would first specify training requirements for all employees and would cover a recipient's confidential employees, non-confidential employees, and student-employees. This all-employee training requirement would serve an important purpose of ensuring that those most likely to interact with students in their day-to-day work (such as teachers, professors, and student-facing staff) as well as with other employees have the training necessary to understand their role in ensuring the recipient's compliance with its Title IX obligations. This would include the scope of conduct that constitutes sex discrimination, including the definition of “sex-based harassment,” how to respond consistent with proposed § 106.40(b)(2) to information about a student's pregnancy or related conditions, and how to respond consistent with proposed § 106.44 to information about conduct that may constitute sex discrimination under Title IX.
Proposed § 106.8(d)(2) would require investigators, decisionmakers, and other persons who are responsible for implementing the recipient's grievance procedures or have the authority to modify or terminate supportive measures in proposed § 106.44(g)(4) to be trained on certain topics, to the extent related to their responsibilities. The group covered by this training requirement would be broader than current § 106.45(b)(iii) in that it includes persons who are not investigators, decisionmakers, or coordinators, but are responsible for implementing the recipient's grievance procedures or have the authority to modify or terminate supportive measures. This proposed clarification is meant to ensure that all persons who are involved in the investigation and resolution of a Title IX complaint are properly trained. The Department proposes moving the training requirements for facilitators of informal resolutions to a separate section to better reflect the unique responsibilities of that role.
Proposed § 106.8(d)(2) would require investigators, decisionmakers, and other persons who are responsible for implementing the recipient's grievance procedures or have the authority to modify or terminate supportive measures under proposed § 106.44(g)(4) to be trained on many of the same topics as are required in current § 106.45(b)(iii), including the definition of prohibited “sex-based harassment,” the recipient's grievance procedures, how to serve impartially, and how to assess the relevance of questions and evidence. Proposed § 106.8(d)(2) would also add additional topics, including the core elements included in training for all employees under proposed § 106.8(d)(1) and the recipient's obligations under proposed § 106.44. It would also apply the existing training requirement of § 106.45(b)(iii) on issues of relevance more generally because relevancy considerations are not limited to an investigative report and arise throughout an investigation. The Department also proposes that this training would include training on the types of questions and evidence that that are impermissible regardless of relevance. The Department believes these topics would be important for those persons who are responsible for implementing the recipient's grievance procedures or have the authority to modify or terminate supportive measures to understand their responsibilities as part of the recipient's Title IX compliance efforts.
The Department also proposes removing certain named topics from current § 106.45(b)(1)(iii). The Department has not proposed training on “the scope of the recipient's education program or activity” as an express, separate topic because this should be covered by the obligation to provide training on the recipient's obligation to address sex discrimination in its education program or activity in proposed § 106.8(d)(1). Similarly, the specific requirement in current § 106.45(b)(iii) to provide training on “how to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes” would be covered by the proposed requirement in proposed § 106.8(d)(2) to provide training on “the recipient's obligations under § 106.44” and “the recipient's grievance procedures as described in § 106.45, and if applicable § 106.46.”
The current regulations, at § 106.45(b)(1)(iii), also require training on any technology to be used at a live hearing. The proposed regulations would permit the use of technology to conduct live hearings with the parties in separate locations. Unlike the current regulations, the Department proposes removing the requirement that the decisionmaker personally receive technology training; however, a recipient would be responsible for ensuring that technology used during any live hearing enables the decisionmaker and parties to simultaneously see and hear the party or witness while that person is speaking or communicating in another format. Accordingly, the proposed regulations would require that the technology operate effectively as required but not that the decisionmaker serve as the operator of the technology.
Proposed § 106.8(d)(3) would set special training requirements for facilitators of an informal resolution process under proposed § 106.44(k), including the core elements included in training for all employees under proposed § 106.8(d)(1), as well as training on the rules and practices associated with the recipient's informal resolution process and on how to serve impartially, including by avoiding conflicts of interest and bias. Proposed § 106.8(d) would not require facilitators of informal resolution to be trained on the recipient's grievance procedures or on prejudgment of the facts at issue because a facilitator is not responsible for implementing the recipient's grievance procedures and is not engaged in factfinding, so training on those topics would not be appropriate for a facilitator of an informal resolution process in the way it would be for a decisionmaker or investigator.
Lastly, proposed § 106.8(d)(4) would require the Title IX Coordinator and any designees to be trained on all topics required under proposed § 106.8(d)(1) through (3), as well as their specific responsibilities under proposed §§ 106.8(a), 106.40(b)(3), 106.44(f), and 106.44(g), the recipient's recordkeeping system and the requirements of proposed § 106.8(f), and any other training necessary to coordinate the recipient's compliance with Title IX. Because of the central role of the Title IX Coordinator under the current and proposed regulations, training of the Title IX Coordinator is critical to a recipient's effective compliance with Title IX. The Department proposes the broadest training requirement for the Title IX Coordinator because the person in that role should understand all aspects of the recipient's Title IX compliance program, including their own roles and responsibilities and the roles and responsibilities of all other employees.
In the elementary school and secondary school context, the IDEA and Section 504 ensure protections for students with disabilities. There are distinctions among the rights granted and procedures required by each statute that are crucial in other contexts. For purposes of the proposed regulations, however, it is only necessary to note that the implementing regulations for the IDEA and Section 504 require that a group of persons—the IEP team or Section 504 team—is responsible for making individualized determinations about what constitutes a free appropriate public education (FAPE) for each child with a disability. 34 CFR 300.17; 34 CFR 104.33. The team must address, among many other things, questions regarding the placement, special education, and related services that are appropriate for that student. 34 CFR 300.300 through 300.328; 34 CFR 104.34 through 104.36.
For an elementary or secondary student complainant or respondent who is a student with a disability, the Title IX grievance procedures may intersect with the decisions, including those about FAPE, made by the IEP team or Section 504 team. A student with a disability involved in a Title IX proceeding would best be served by the Title IX Coordinator consulting the student's IEP team or Section 504 team throughout the implementation of the grievance procedures described in proposed § 106.45, as well as in the offer and coordination of any supportive measures as described in proposed § 106.44(g)(7). For this reason, the Department proposes making this consultation with the IEP team or Section 504 team a requirement for an elementary or secondary student complainant or respondent who is a student with a disability. This consultation should be carried out with an understanding of the sensitivity of the issues involved and a priority on preserving the confidentiality of the student and other parties involved to the extent possible.
Federal law does not grant students with disabilities in higher education any similar right to a team of knowledgeable persons coming together to make individualized FAPE decisions. Under Section 504, a postsecondary student with a disability does not have to disclose that they have a disability. Generally, if a student with a disability would like an academic adjustment or other modification related to their disability, they must provide information related to their disability to the postsecondary institution, and the institution must then consider their request. Because of those differences, including that a student with a disability may not have established a voluntary relationship with the postsecondary institution's office that serves students with disabilities, the Department proposes that the consultation between a Title IX Coordinator and the postsecondary institution's disability services office should be permitted but not required.
For each response required under § 106.44, current § 106.45(b)(10)(ii) requires a recipient to create and maintain for a period of seven years: records of any actions, including supportive measures, taken in response to a report or formal complaint of sexual harassment. It further requires a recipient to document the basis for its conclusion that its response was not deliberately indifferent, and document that it has taken measures designed to restore or preserve equal access to the recipient's education program or activity. If a recipient does not provide a complainant with supportive measures, current § 106.45(b)(10)(ii) requires the recipient to document the reasons why such a response was not clearly unreasonable in light of the known circumstances. The documentation of certain bases or measures does not limit the recipient in the future from providing additional explanations or detailing additional measures taken.
Consistent with the Department's proposed clarification of a recipient's duty to prevent discrimination and ensure equal access for students and employees in connection with pregnancy or related conditions, the Department proposes revising the recordkeeping requirement to include records documenting the actions the recipient took to meet its obligations under proposed §§ 106.40 and 106.57.
In addition, the Department proposes retaining the requirement that a recipient must retain records of certain training materials but broadening the scope of the training materials to cover all forms of sex discrimination, including but not limited to sexual harassment, consistent with proposed § 106.8(d).
The Department also proposes retaining the requirement that a recipient make these training materials publicly available on its website, or if the recipient does not maintain a website, the recipient must make these materials available upon request for inspection by members of the public. The Department proposes broadening the scope of the training materials that must be posted on the recipient's website or made available upon request to cover all forms of sex discrimination, not just sexual harassment, consistent with proposed § 106.8(d).
Proposed § 106.8(f)(1) would require each recipient to maintain, for a period of seven years:
• For each complaint of sex discrimination, records documenting the informal resolution process under proposed § 106.44(k) or the grievance procedures under proposed § 106.45, and if applicable proposed § 106.46, and the resulting outcome;
• For each incident of conduct that may constitute sex discrimination under Title IX of which the Title IX Coordinator was notified, records documenting the actions the recipient took to meet its obligations under proposed § 106.44;
• All materials used to provide training under proposed § 106.8(d). A recipient would be required to make these training materials publicly available on its website, or if the recipient does not maintain a website the recipient would be required to make these materials available upon request for inspection by members of the public; and
• All records documenting the actions the recipient took to meet its obligations under proposed §§ 106.40 and 106.57.
The Department proposes maintaining the requirement in the current regulations related to the general types of records that must be kept and maintaining the seven-year record retention period, while eliminating the specificity in the types of records each recipient is required to maintain. This proposed change corresponds with proposed changes elsewhere in the proposed regulations regarding a recipient's obligations to respond to complaints of sex discrimination under Title IX. For example, when a recipient uses its grievance procedures under proposed § 106.45, and if applicable proposed § 106.46, to meet its obligations under proposed § 106.44, the recipient would be required to maintain records of that process, which would include some of the same records currently required under § 106.45(b)(10)(i)(A). In addition, consistent with current § 106.45(b)(10)(i)(C), proposed § 106.8(f)(1) would require a recipient to maintain records of its informal resolution process under proposed § 106.44(k), if it uses that process to meet its obligations under proposed § 106.44. The Department's statement in the preamble to the 2020 amendments “that while the final regulations require records to be kept for seven years, nothing in the final regulations prevents recipients from keeping their records for a longer period of time if the recipient wishes or due to other legal obligations” would also continue to apply under the proposed regulations. 85 FR 30411.
The Department also proposes removing the records described in current § 106.45(b)(10)(ii) that relate to a recipient's demonstrating its compliance with the deliberate indifference standard from the recordkeeping requirement because those requirements would no longer be relevant under the proposed regulations which, as explained in the discussion of proposed § 106.44, would remove the deliberate indifference standard. The recordkeeping requirement related to supportive measures in § 106.45(b)(10)(ii) of the current regulations, although still applicable under the proposed regulations, is covered by records discussed in proposed § 106.8(f)(2), which would require a recipient to maintain records of the actions the recipient took to meet its obligations under § 106.44. As explained in the discussion of proposed § 106.44(g), these actions would include offering supportive measures, as appropriate, to the complainant and respondent.
For the same reasons discussed above regarding the modification of the recordkeeping requirement to cover all sex discrimination, including but not limited to sexual harassment, consistent with Title IX, the Department proposes revising the requirement in current § 106.45(b)(10)(i)(D) to require a recipient to maintain all training materials used to provide training on sex discrimination, including sexual harassment, under § 106.8(d). Under proposed § 106.8(f)(3), a recipient would also be required to publicly post these materials on its website consistent with current § 106.45(b)(10)(i)(D), or if the recipient does not maintain a website, to make these materials available upon request for inspection to members of the public.
Finally, under proposed § 106.8(f)(4), the Department proposes requiring a recipient to maintain all records documenting the actions the recipient took to meet its obligations under proposed §§ 106.40 and 106.57 regarding students and employees who are pregnant or experiencing pregnancy-related conditions. This would ensure that OCR is able to assess a recipient's compliance with those obligations, including but not limited to, the implementation of reasonable modifications and provision of lactation space for students because of pregnancy or related conditions under proposed § 106.40(b)(3) and (4), and the provision of lactation time and space for employees under proposed § 106.57(e).
Current § 106.44(a) states that a recipient with actual knowledge of sexual harassment in its education program or activity against a person in the United States must respond promptly in a manner that is not deliberately indifferent. That provision further states a recipient is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of known circumstances.
With respect to deliberate indifference as the appropriate standard of liability for administrative enforcement, the Department stated in the preamble to the 2020 amendments that the “adaptions of the three-part
The Department remains committed to these objectives: respect for freedom of speech and academic freedom; respect for complainants' autonomy; protection of complainants' equal educational access while respecting the decisions of recipients to determine appropriate supportive measures, remedies, and disciplinary sanctions; consistency with constitutional due process and fundamental fairness; and clear legal obligations that enable robust administrative enforcement of Title IX violations. Further, the Department's tentative view is that the proposed revisions to § 106.44 would effectively achieve these objectives while better ensuring that all recipients fulfill the Title IX mandate to provide a nondiscriminatory educational environment. As explained in greater detail in the discussion of the proposed definition of “sex-based harassment” (§ 106.2), the Department also holds the tentative position that the administrative enforcement standard set out in the proposed regulations would adequately and fully address the particular concerns regarding free speech and academic freedom that the Department discussed in the 2020 amendments in connection with its standard for enforcing Title IX.
The Department recognized in the preamble to the 2020 amendments that there are important differences between judicial and administrative enforcement for purposes of effectuating Title IX's nondiscrimination mandate and noted that “some violations of Title IX may lend themselves to the administrative remedy of terminating Federal financial assistance, while other violations may lend themselves to a judicial remedy in private litigation.”
OCR received feedback from stakeholders during the June 2021 Title IX Public Hearing and in listening sessions both in support of and in opposition to the references to actual knowledge and the deliberate indifference standard in the 2020 amendments. For example, OCR heard from stakeholders who supported the “actual knowledge” definition or who wanted the definition of “notice” to be narrowed even further. On the other hand, OCR also received feedback from stakeholders expressing concern about the narrowness of the actual knowledge standard. These stakeholders urged the Department to return to the constructive knowledge standard set out in OCR's
OCR also heard from stakeholders since the 2020 amendments went into effect asking the Department to reconsider the application of the standard of liability for private actions for monetary damages to a recipient's obligation to respond to sexual harassment in the administrative enforcement context. A variety of stakeholders representing all educational levels, including elementary school and secondary school administrators, representatives from postsecondary institutions, Title IX Coordinators, State Attorneys General, and advocacy organizations, expressed concern that the deliberate indifference standard is inappropriate in the administrative enforcement context. Stakeholders stated that the deliberate indifference standard erodes efforts to promote and nurture institutional trust by appearing to hold schools to a lower standard and could be construed to deprive OCR of critical enforcement authority, including the ability to address sex discrimination before it rises to the level of the recipient being held liable for money damages in private lawsuits. In addition, other stakeholders explained that it is difficult for recipients to implement the deliberate indifference standard for sexual harassment in cases that also raise discrimination on other bases, such as race and disability, in which the Department has retained its longstanding standard that looks to the reasonableness of a recipient's response as the appropriate standard for administrative enforcement. They argued that by maintaining uniform standards across civil rights statutes, the Department would reduce confusion and strengthen enforcement in addressing such intersectional claims. In addition to the difficulty associated with requiring recipients to navigate different policies, stakeholders noted that the Department's application of a different standard of liability for sexual harassment than for other forms of discrimination raises questions regarding equity, specifically as to why the Department requires recipients to meet a less stringent standard for responding to complaints about sexual harassment than for complaints of other types of prohibited harassment and discrimination, including sex discrimination.
The Department acknowledged in the preamble to the 2020 amendments that “[n]either
The Department's longstanding position is that it cannot compel a recipient to comply with Title IX—for example by terminating Federal funds from the recipient—simply because an official identified in the “actual knowledge” definition of the current regulations (
Notwithstanding that a recipient cannot be liable for
Current § 106.44(a) states that “[a] recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States, must respond promptly in a manner that is not deliberately indifferent” and provides that the recipient's “Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures” and “explain to the complainant the process for filing a formal complaint.” If the recipient receives a formal complaint under those procedures, current § 106.44(b) then obligates the recipient to follow additional requirements discussed elsewhere in the current regulations. Prior to the 2020 amendments, OCR had interpreted Title IX to require a recipient with notice of sexual harassment to “promptly investigate to determine what occurred and then take appropriate steps to resolve the situation.” 2001 Revised Sexual Harassment Guidance at 15;
In the preamble to the 2020 amendments, the Department explained its view that requiring a recipient to take “ `effective corrective actions to stop the harassment [and] prevent its recurrence,' . . . ostensibly holds a recipient strictly liable to `stop' and `prevent' sexual harassment.” 85 FR 30044 n.165 (quoting 2001 Revised Sexual Harassment Guidance at 10, 12);
OCR heard, through the June 2021 Title IX Public Hearing and in listening sessions, concerns about the Department's suggestion that a school's obligation to respond to sexual harassment occurs only in situations in which a recipient has actual knowledge of sexual harassment. OCR also heard concerns about the way in which the current regulations limit a recipient's required response to actual knowledge—that a recipient is required only to offer a complainant supportive measures and provide the complainant with information about the recipient's grievance procedures, unless a formal complaint is filed through the recipient's grievance procedures. Stakeholders expressed a concern that in shifting from a reasonableness standard to deliberate indifference, the Department no longer required schools to act proactively to address sex discrimination in their educational environment. They noted that under the 2020 amendments, the Department failed to require recipients to fully address the impact of sexual harassment in their educational environments, and further failed to impose any obligations to respond to possible sex discrimination other than requiring them to adopt grievance procedures for the prompt and equitable resolution of sex discrimination complaints contained in current § 106.8(c). Together, these concerns suggested that the approach adopted in the 2020 amendments may have created a troubling gap in implementing Title IX's prohibition on sex discrimination: a recipient may have information about possible sex discrimination in its education program or activity and yet may have no obligation to take any action to address it if a formal complaint is not filed and the recipient's Title IX Coordinator determines that the allegations do not warrant overriding a complainant's wishes and initiating a complaint. These stakeholders further commented that there are other steps a recipient can and should take to address sex discrimination outside of acting through its grievance procedures and asked the Department to reconsider its approach.
To address these concerns, dispel confusion created by the 2020 amendments, and ensure a recipient fulfills its legal duty to operate its education program or activity free from sex discrimination, proposed § 106.44(a) would require a recipient to take prompt and effective action to end any sex discrimination that has occurred in its education program or activity, prevent its recurrence, and remedy its effects. Although the Department does not propose a specific timeframe for “prompt” action to end sex discrimination, as the Department explained in the preamble to the 2020 amendments, what would constitute reasonably prompt timeframes in a recipient's grievance process under current § 106.45 “is judged in the context of the recipient's obligation to provide students and employees with education programs and activities free from sex discrimination.” 85 FR 30269. Outside the context of a recipient's grievance procedures for complaints of sex discrimination, the Department reaffirms that “prompt” action to end sex discrimination in a recipient's education program or activity “is necessary to further Title IX's nondiscrimination mandate.”
The Department notes that proposed § 106.44(a)'s requirement of prompt and effective action would not compel any particular officials of a recipient to know of and respond effectively to sex discrimination that has not yet occurred; however, it would impose an obligation on a recipient to act effectively by taking reasonable steps calibrated to ensure that its Title IX Coordinator learns of possible discrimination so that the recipient can promptly and effectively address the discrimination based on all available information. And when a recipient's response does not end discrimination and prevent its recurrence, the prompt and effective response requirement would mean that the recipient must reevaluate its response and take additional steps to end sex discrimination in its education program or activity. This approach is consistent with Federal courts' interpretation of
In the administrative enforcement context, the Department proposes that a recipient meets its obligation to take prompt and effective action to end any sex discrimination in its education program or activity, prevent its recurrence, and remedy its effects by complying with the steps required under the additional provisions in proposed § 106.44, as appropriate. Importantly, nothing in the proposed regulations would affect the fact that the Department may not “terminat[e] or refus[e] to grant or to continue [Federal financial] assistance under [a] program or activity to any recipient” until the Department has made an express finding on the record of a failure to comply with a regulatory or statutory requirement, “after opportunity for hearing.” 20 U.S.C. 1682.
The Department has long emphasized the importance of a recipient's efforts to prevent sex discrimination. For example, in the preamble to its 2020 amendments to the Title IX regulations, the Department repeatedly acknowledged the importance of efforts to prevent sex discrimination. 85 FR 30063 (stating that “the Department agrees with commenters that educators, experts, students, and employees should also endeavor to prevent sexual harassment from occurring in the first place” (emphasis omitted));
In addition, a longstanding concern of the Department has been that information about conduct that may constitute sex discrimination under Title IX may be underreported to officials of recipients who are able to take effective steps to address it. For example, in the preamble to the 2020 amendments, the Department noted concerns raised by stakeholders that “sexual assault is chronically underreported” and that while most of those who experience sexual assault tell someone about their experience, only a small minority of incidents of sexual assault are reported to officials such as the Title IX Coordinator. 85 FR 30110. In response to these concerns, the Department emphasized that the Title IX Coordinator's role is to ensure that “all students have clear, accessible options for making reports.”
Following the implementation of the 2020 amendments, OCR continued to hear from stakeholders who expressed concerns regarding barriers to reporting information about conduct that may constitute sex discrimination under Title IX. During the June 2021 Title IX Public Hearing, OCR received feedback from some stakeholders noting that a majority of students (one stakeholder stated that it was 90 percent of students) who had experienced sex-based harassment did not report it to their school. Stakeholders pointed to a variety of reasons for this substantial underreporting, including inadequacies in a recipient's response to reports, such as a failure to communicate promptly, to investigate as required, to address violations of restrictions on contact, or to respond effectively to retaliation. In addition, some stakeholders stated that students were deterred from reporting sex-based harassment because they feared being disciplined for violating the recipient's code of conduct related to personal alcohol or drug use or consensual sexual activity. On this issue, some stakeholders noted that they or others had been disciplined after reporting sex-based harassment, including for the very conduct about which they complained.
Recognizing that these barriers may interfere with a recipient's ability to offer its programs and activities free from sex discrimination, as required by Title IX, the Department proposes that the recipient's Title IX Coordinator would have responsibility to monitor for barriers to reporting. The Department also proposes requiring that when the Title IX Coordinator has identified such a barrier, the recipient must take steps reasonably calculated to address the barrier, consistent with Title IX and the Department's regulations. Proposed § 106.44(b) would thus complement the recipient's efforts under proposed § 106.44(a) to ensure that its education program or activity is free from sex discrimination. By requiring its Title IX Coordinator to monitor for barriers to reporting and then take steps reasonably calculated to address those barriers, the recipient would ensure that it is monitoring conditions in its educational environment that might have the effect of chilling reporting of sex discrimination. By addressing barriers to reporting, proposed § 106.44(b) would also support a recipient in complying with its obligations under Title IX, including to prohibit retaliation under proposed § 106.71. The Department notes that under this proposed requirement, a recipient may use various strategies to identify barriers, such as conducting regular campus climate surveys, seeking targeted feedback from students and employees who have reported or made complaints about sex discrimination, participating in public awareness events for purposes of receiving feedback from student and employee attendees, or regularly publicizing and monitoring an email address designated for receiving anonymous feedback about barriers to reporting sex discrimination. The Department acknowledges that recipients vary in size and resources, and emphasizes that recipients have the opportunity to choose strategies that will be effective in their educational setting. The Department also notes that in order to fulfill its monitoring obligation, a recipient may need to direct its Title IX Coordinator to use multiple strategies to ensure that the recipient is identifying barriers for all populations, particularly those who may face additional barriers to reporting, including students with disabilities or persons with limited English proficiency.
Under proposed § 106.44(b), the recipient must take steps reasonably calculated to address actual or perceived barriers, if any, consistent with Title IX and the Department's regulations. These steps must be tailored to respond to the identified impediments and obstacles to reporting, and could include, for example, more frequent and prominent publication of the Title IX Coordinator's contact information; relocation of the Title IX Coordinator's office to a more visible, accessible location; ensuring that the Title IX Coordinator's office is adequately staffed; enhancing training for employees with Title IX responsibilities; the development and circulation of user-friendly Title IX materials; publicized assurances that the recipient will not discipline parties or witnesses to a grievance procedure for certain code of conduct violations (
Current § 106.44(a) states that a recipient with actual knowledge of sexual harassment in its education program or activity against a person in the United States must respond promptly in a manner that is not deliberately indifferent. That section further states a recipient is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of known circumstances.
Under proposed § 106.44(c)(2)(i), all other recipients would be obligated, at a minimum, to require any employee who is not a confidential employee and who has authority to institute corrective measures on behalf of the recipient to notify the Title IX Coordinator when the employee has information about conduct that may constitute sex discrimination under Title IX.
Under proposed § 106.44(c)(2)(ii), all other recipients would also be obligated, at a minimum, to require any employee who is not a confidential employee and who has responsibility for administrative leadership, teaching, or advising in the recipient's education program or activity to notify the Title IX Coordinator when the employee has information about a student being subjected to conduct that may constitute sex discrimination under Title IX.
Under proposed § 106.44(c)(2)(iii), all other recipients would also be obligated, at a minimum, to require any employee who is not a confidential employee and who has responsibility for administrative leadership, teaching, or advising in the recipient's education program or activity and has information about an employee being subjected to conduct that may constitute sex discrimination under Title IX to either: (A) notify the Title IX Coordinator when the employee has information about conduct that may constitute sex discrimination against employees under Title IX; or (B) provide the contact information of the Title IX Coordinator and information about how to report sex discrimination to any person who provides the information.
Under proposed § 106.44(c)(2)(iv), all other recipients would also be obligated,
Proposed § 106.44(c)(3) would provide factors for a postsecondary institution to consider when determining whether a person who is a student and an employee would be subject to the requirements in proposed § 106.44(c)(2) for employees.
Proposed § 106.44(c)(4) would explain that the requirements under proposed § 106.44(c)(1) and (2) would not apply when the only employee with information about conduct that may constitute sex discrimination under Title IX is the employee-complainant.
As explained in the discussion of the definition of “actual knowledge” in the current regulations, current § 106.30(a) defines “actual knowledge” as notice of sexual harassment or allegations of sexual harassment to a recipient's Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to any employee of an elementary and secondary school recipient. In addition, current § 106.44(a) states that a recipient with actual knowledge of sexual harassment in its education program or activity against a person in the United States must respond promptly in a manner that is not deliberately indifferent. After reconsidering this issue in light of stakeholder feedback and a recipient's obligation to ensure that its education program or activity is free from sex discrimination regardless of notice, the Department proposes that the most effective way to ensure that a recipient's program or activity is free from sex discrimination is through regulations that set out a recipient's particular obligations regarding notification to the recipient's Title IX Coordinator and other requirements for various employees who have information concerning conduct that may constitute sex discrimination under Title IX. This would include requiring particular categories of employees to take specific actions when these employees have information about conduct that may constitute sex discrimination under Title IX. In addition, because the obligation under Title IX for a recipient to operate its education program or activity free from sex discrimination extends to all forms of sex discrimination, not just sexual harassment, these obligations and employee actions must not be limited to sexual harassment.
Under proposed § 106.44(c), these specific employee obligations would include either notifying the recipient's Title IX Coordinator when the employee has information about conduct that may constitute sex discrimination under Title IX or providing the contact information of the recipient's Title IX Coordinator and information about how to report sex discrimination to any person who provides the employee with information about conduct that may constitute sex discrimination under Title IX. Whether an employee would be obligated to notify the Title IX Coordinator directly or provide the Title IX Coordinator's contact information and information about reporting would depend on the employee's role, including whether the employee is employed by an elementary school or secondary school or other recipient, whether the employee has authority to take corrective action or has responsibility for administrative leadership, teaching, or advising in the recipient's education program or activity, whether the conduct that may constitute sex discrimination under Title IX affected students or employees, and whether the employee meets the definition of a “confidential employee” in proposed § 106.2.
The preamble to the 2020 amendments also discussed the desire to provide autonomy to complainants in support of limiting the definition of “actual knowledge” at postsecondary institutions to employees with the authority to institute corrective measures on behalf of the recipient. The preamble to the 2020 amendments stated that “[t]he extent to which a wide-net or universal mandatory reporting system for employees in postsecondary institutions is beneficial, or detrimental, to complainants, is difficult to determine, and research (to date) is inconclusive.”
The Department continues to recognize the importance of complainant autonomy outside of the context of elementary school and secondary school settings, as discussed in the preamble to the 2020 amendments, and also recognizes concerns expressed by stakeholders that the limitation on which employees are covered by the definition of “actual knowledge” under current § 106.30(a) for postsecondary institutions is too narrow and insufficient to ensure that recipients meet their obligation under Title IX to operate their education programs or activities free from sex discrimination. In view of this, the Department's tentative position is that it would be appropriate to obligate recipients other than elementary schools or secondary schools to require any employee who is not a confidential employee and who has authority to institute corrective measures on behalf of the recipient to notify the Title IX Coordinator when the employee has information about conduct that may constitute sex discrimination under Title IX. The Department's tentative position is also that it would be appropriate to obligate recipients other than elementary schools or secondary schools to require any employee who is not a confidential employee and who has responsibility for administrative leadership, teaching, or advising in a recipient's education program or activity, to notify the Title IX Coordinator when the employee has information about a student being subjected to conduct that may constitute sex discrimination under Title IX.
Requiring employees with the authority to institute corrective measures to notify the Title IX Coordinator when they have information about conduct that may constitute sex discrimination under Title IX is generally consistent with the definition of “actual knowledge” in the sexual harassment context in current § 106.30(a). Although employees with responsibility for administrative leadership, teaching, and advising in the recipient's education program or activity may not actually have the authority to institute corrective measures on behalf of the recipient, these employees are responsible for providing aid, benefits, or services to students. In light of this responsibility, it is likely that a student would view these employees as persons who would have the authority to redress sex discrimination or to whom they could provide information regarding sex discrimination with the expectation that doing so would obligate the recipient to act. The same is true for employees with administrative roles who are not student-facing (
The Department also now believes that it would be appropriate to provide recipients other than elementary schools and secondary schools with the option to determine, based on their own administrative structure, education community, and State or local legal requirements, the notification obligations of certain types of employees. This would include employees who are not confidential employees and who have responsibility for administrative leadership, teaching, or advising in the recipient's education program or activity who have information about an employee being subjected to conduct that may constitute sex discrimination under Title IX and all other employees who are not confidential employees, if any, who have information about conduct that may constitute sex discrimination under
The Department's current view is also that complainant autonomy and the ability to seek out confidential resources would be better supported by proposing a definition of “confidential employee” and requirements for confidential employees than by limiting the category of employees at recipients other than elementary schools and secondary schools who must notify the Title IX Coordinator of conduct that may constitute sex discrimination under Title IX. The proposed definition of “confidential employee” and requirements for confidential employees are explained in greater detail in the discussion of the proposed definition of “confidential employee” (§ 106.2) and proposed requirements for confidential employees (§ 106.44(d)).
The Department explained in the preamble to the 2020 amendments that a recipient is required to notify all students or employees “of the contact information for the Title IX Coordinator and how to report sexual harassment for purposes of triggering a recipient's response obligations,” but expressed the belief “that students at postsecondary institutions benefit from retaining control over whether, and when, the complainant wants the recipient to respond to the sexual harassment that the complainant experienced.”
The Department also currently believes that an employee may receive information about conduct that may constitute sex discrimination under Title IX in a variety of ways, which is similar to the position the Department took in the 2020 amendments.
The Department also notes the increasing use of social media and other online platforms as a means of communication between students and the rise of online harassment as a form of sex-based harassment, including on these platforms. The Department recognizes that online harassment is constantly evolving as forms of these platforms evolve and that harassment targeted at students and employees on these media platforms may impact a recipient's education program or activity. The Department does not expect that a recipient will follow the online activity of its students that is not part of the recipient's education program or activity; however, when an employee has information about sex-based harassment among its students that took place on social media or other online platforms and created a hostile environment in the recipient's education program or activity, the recipient would have an obligation to address that conduct. Therefore, a recipient under the proposed regulations would be required to ensure that its employees understand their obligation, depending on their role, to either provide that information to the Title IX Coordinator or provide the Title IX Coordinator's information and reporting information to the person who alerted them to the conduct that may constitute sex-based harassment.
The Department's proposed definition of “confidential employee” would include three categories. The first category would include employees whose communications are privileged under Federal or State law associated with their role or duties for the institution. The second category would include employees whom the recipient has designated as a confidential resource for the purpose of providing services to individuals in connection with sex discrimination. If the employee also has a role or duty that is not associated with providing these services, the employee's status as confidential would be limited to information received about sex discrimination in connection with providing these services. The third category would be limited to employees of postsecondary institutions who conduct human subjects-research studies that have been approved by the recipient's Institutional Review Board (IRB) and that are designed to gather information about sex discrimination. Those employees' status as confidential would be limited to information about sex discrimination received while conducting the approved study.
OCR received comments through listening sessions and the June 2021 Title IX Public Hearing that stressed the importance of access to confidential resources for persons who have been subjected to sex-based harassment, including sexual violence. For example, one stakeholder emphasized the need for schools to have a mechanism for confidential reporting to allow students to receive supportive measures without disclosing their identity to their harasser or initiating a Title IX investigation.
The Department explained in the preamble to the 2020 amendments that because postsecondary institutions have the discretion to decide who to authorize as officials with authority under current § 106.30(a), a postsecondary institution can “decide that other employees should remain confidential resources to whom a student at a postsecondary institution might disclose sexual harassment without automatically triggering a report by the employee to the Title IX Coordinator.” 85 FR 30526. As a result of the proposed changes reflected in proposed § 106.44(a) and (c), it is important to clarify a recipient's responsibilities in relation to its employees who provide confidential services.
The proposed role for confidential employees would take into account the need for a recipient to find out about and promptly take action in response to sex discrimination in its education program or activity, as discussed regarding proposed § 106.44(a) through (c), and the importance of ensuring that persons who have experienced discrimination also have access to confidential services when appropriate. Under proposed § 106.44(d), a confidential employee would not be expected to report what they learn about sex discrimination to the Title IX Coordinator, but the recipient would be required to take certain steps to ensure that persons who report sex discrimination to a confidential employee understand the employee's confidential status and how to report sex discrimination to the Title IX Coordinator. Ensuring that some employees are able to receive confidential reports of sex discrimination, including sex-based harassment, is a longstanding priority for the Department and would be consistent with the practices of many schools both before and since the 2020 amendments. The Department also notes that making confidential employees available may also result in more individuals feeling comfortable to seek the support they need to address the immediate effects of sex-based harassment or other sex discrimination and ultimately find the confidence to make the recipient aware of incidents that may otherwise have gone unreported.
The first category of confidential employees would include employees whose communications are privileged under Federal or State law associated with their role or duties. For example, physicians and clergy affiliated with the institution could be considered confidential employees under this first category. Current § 106.45(b)(1)(x) prohibits a recipient from using information protected under a legally recognized privilege, and current § 106.45(b)(5)(i) prohibits a recipient
The second category of confidential employees would include employees designated by the recipient to provide confidential services to individuals who may have experienced or been accused of engaging in conduct that may constitute sex discrimination. The information received by these employees about sex discrimination would also be confidential. For example, a recipient may designate certain employees as advisors to students in its grievance procedures. These advisors would serve as confidential employees while providing services to individuals in connection with those grievance procedures. Employees designated as confidential resources would not qualify as confidential employees while engaged in other activities, such as teaching or coaching. This category of confidential employees would enable recipients to offer confidential resources to students without creating overly broad exceptions. This proposed exception is consistent with the Clery Act's exemption of employees from reporting obligations as campus security authorities when they are acting as a pastoral or professional counselor. 34 CFR 668.46(a), (b)(4)(iv), (c)(8).
The third category of confidential employees would apply in the limited situation in which employees of postsecondary institutions are conducting IRB-approved studies involving human subjects that are designed to gather information about sex discrimination. For example, participants in clinical trial or other research studies on sexual violence in campus settings may reveal information about personal experiences of sex-based harassment. If an employee were required to report these incidents to the Title IX Coordinator, the researchers would need to alert participants as part of the process for consenting to participate in the study,
To make informed decisions about reporting sex discrimination, individuals must understand how to report such conduct and which employees will provide information they receive about such conduct to the recipient's Title IX Coordinator. Proposed § 106.44(d)(1) would require a recipient to inform students and any other participants in the recipient's education program or activity of the identity of any confidential employees. In addition, under proposed § 106.44(d)(2), whenever someone informs a confidential employee that sex discrimination, including sex-based harassment or related peer retaliation, may have occurred, the confidential employee would be required to explain to that person the employee's confidential status and how to report the conduct. As part of this explanation, the confidential employee would be required to provide that person with the contact information of the recipient's Title IX Coordinator and explain how to report information about conduct that may constitute sex discrimination under Title IX. These steps would help to ensure that individuals who provide information about sex discrimination to confidential employees understand what further steps they can take if they would like to report sex discrimination or make a Title IX complaint.
Nothing in proposed § 106.44(c), (d), or (e) is intended to exempt a recipient's employees—including confidential employees—from complying with any obligations under Federal, State, or local law to report sex discrimination, including sex-based harassment. In addition, § 106.6(f), to which the Department does not propose making any changes, makes clear that the requirements in the Title IX regulations do not alleviate recipient's obligations to its employees under Title VII. The exceptions set out in proposed § 106.44(d) pertain only to a recipient's obligations under Title IX and would not alleviate any obligations a recipient may have under Title VII to respond to information about sex discrimination.
After considering these issues, it is the Department's current understanding that it would be appropriate under Title IX to take into account the many benefits provided by public awareness events hosted by postsecondary institutions or organized independently by a postsecondary institution's students to raise awareness about sex-based harassment, such as Take Back the Night or other forums at which a postsecondary institution's students may disclose experiences with sex-based harassment. In view of this, the Department's proposed regulations at proposed § 106.44(e) would include an exception to the required action that a postsecondary institution must take in response to information about conduct that may constitute sex-based harassment under Title IX, specifically that when a postsecondary institution's Title IX Coordinator is notified of information about conduct that may constitute sex-based harassment under Title IX that was provided by a person during public awareness events, the postsecondary institution would not be obligated to act in response to the information under proposed §§ 106.44, 106.45, or 106.46. This proposed exception would apply only to public awareness events held on a postsecondary institution's campus or through an online platform sponsored by a postsecondary institution because those are the events where it is most likely that a postsecondary institution's employees would be present and could hear information about conduct that may constitute sex-based harassment. Without this exception, under proposed § 106.44(f), the Title IX Coordinator would be required to take certain steps upon being notified of this information.
The Department notes that nothing in proposed § 106.44(e) would obligate a postsecondary institution's employees to attend public awareness events. If an employee is in attendance, the notification requirements under proposed § 106.44(c)(2) would apply to the employee, but the Title IX Coordinator's obligations under proposed § 106.44(f) upon being notified by the employee of information about conduct that may constitute sex-based harassment under Title IX would not apply. Under proposed § 106.44(b), the recipient and the recipient's Title IX Coordinator would still be obligated to monitor the recipient's education program or activity for barriers to reporting information about conduct that may constitute sex discrimination under Title IX. The Department also notes that nothing in proposed § 106.44(e) would prohibit a postsecondary institution from sharing the contact information of the recipient's Title IX Coordinator or information about how to report discrimination, including sex discrimination, at public awareness events.
The proposed exception would not apply when a Title IX Coordinator is notified of information shared during a public awareness event about conduct that may constitute sex-based harassment under Title IX that reveals an immediate and serious threat to the health or safety of students or other persons in the postsecondary institution's community. The language regarding immediate and serious threat to health or safety is aligned with the language regarding emergency removals in current § 106.44(c) and proposed § 106.44(h) and should be interpreted in the same way as those terms are interpreted in the context of emergency removals, as explained in the discussion of proposed § 106.44(h). As noted in the discussion of proposed § 106.44(c)(1), the Department agrees with the position stated in the preamble to the 2020 amendments that employees at elementary schools and secondary schools stand in a unique position with respect to responding to sex discrimination affecting their students, and the Department anticipates that it would be appropriate to limit the proposed exception for public awareness events to postsecondary institutions. In addition, proposed § 106.44(e) would not bar a recipient from taking additional action in response to information about conduct that may constitute sex-based harassment shared at a public awareness event if it so chooses.
Proposed § 106.44(e) would also clarify that although when a postsecondary institution's Title IX Coordinator is notified of information about conduct that may constitute sex-based harassment under Title IX provided by a person at a public awareness event, the postsecondary institution would not be obligated to act in response to this information under proposed §§ 106.44, 106.45, or 106.46, the postsecondary institution would be required to use this information to inform its efforts to prevent sex-based harassment. This use would include providing tailored training to address alleged sex-based harassment in a particular part of its education program or activity or at a specific location, or when information indicates there may be multiple incidents of sex-based harassment or when information indicates a single incident of sex-based harassment has occurred and there is a reasonable likelihood that additional incidents may occur at that location in the future. Depending on the information provided, a postsecondary institution might also take steps to protect against sex discrimination at a particular location, such as enhanced lighting, more frequent safety patrols. The proposed regulations would provide a postsecondary recipient with discretion to determine the specific manner in which it integrates the information from disclosures into its prevention training. The Department also notes that proposed § 106.44(e) is consistent with the requirements of at least one State law regarding responses by postsecondary institutions to information provided during public awareness events.
In addition, § 106.6(f), to which the Department does not propose any changes, makes clear that the requirements under the Title IX regulations do not alleviate a recipient's obligations to its employees under Title VII. The public awareness event exception set out in proposed § 106.44(e) would pertain only to a postsecondary institution's obligations under Title IX and would not alleviate any obligations a postsecondary institution may have under Title VII to respond to information about sex-based harassment.
The Department proposes modifying the two examples of equitable treatment and moving them to proposed § 106.45(h)(3) (a recipient must provide remedies to a complainant as appropriate when it determines sex discrimination occurred) and proposed § 106.45(h)(4) (a recipient must follow grievance procedures that comply with proposed § 106.45, and if applicable proposed § 106.46, before imposing disciplinary sanctions against a respondent), which address a recipient's treatment of the parties in the context of its sex discrimination grievance procedures. Proposed § 106.45(b)(1) would require a recipient's grievance procedures to treat the parties equitably, consistent with the requirement in proposed § 106.44(f)(1).
Because a recipient will not always learn of conduct that may constitute sex discrimination under Title IX directly from a complainant, proposed § 106.44(f)(2) would require a Title IX Coordinator, when the complainant's identity is known, to notify the complainant of the grievance procedures for sex discrimination complaints, and proposed § 106.44(k) would give the recipient the discretion to offer an informal resolution process, if available and appropriate. When a Title IX Coordinator does not know the identity of the complainant, the Title IX Coordinator may provide information about the recipient's grievance procedures to the individual, if any, who reported conduct that may constitute sex discrimination under Title IX.
Proposed § 106.44(f)(2)(ii) would also require a Title IX Coordinator to provide the respondent with information about its sex discrimination grievance procedures if a complaint is made that obligates the recipient to initiate those procedures. Although a recipient would be required to publish notice of its grievance procedures under proposed § 106.8(b)(2), providing this information to the respondent at the time the recipient initiates its sex discrimination grievance procedures would ensure the respondent, and the respondent's parent, guardian, or other authorized legal representative in the case of an elementary school or secondary school student, is adequately apprised of the grievance procedures and the rights they afford the respondent. Proposed § 106.44(f)(2)(ii) would also require a Title IX Coordinator to provide the parties with information about informal resolution, if available and appropriate, when a complaint of sex discrimination is made.
The 2020 amendments authorize the Title IX Coordinator to initiate the grievance procedures in current § 106.45 by signing a “formal complaint” as defined in current § 106.30, while clarifying that doing so does not make the Title IX Coordinator a complainant or party for purposes of the complaint or the grievance procedures under current § 106.45. The 2020 amendments do not explain under what circumstances a Title IX Coordinator may initiate a formal complaint; however, the preamble to the 2020 amendments states that the regulations “leave recipients flexibility to investigate allegations even where the complainant does not wish to file a formal complaint where initiating a grievance process is not clearly unreasonable in light of the known circumstances.” 85 FR 30131. The preamble provides one example of when a Title IX Coordinator might initiate a complaint—when presented with allegations “against a potential serial sexual perpetrator”—but gives no guidance other than this example on what factors a Title IX Coordinator should consider when determining to initiate the recipient's grievance procedures.
The Department also offers its current understanding about when a Title IX Coordinator should initiate grievance procedures even though the complainant elected not to make a complaint. Consistent with the example provided in the preamble to the 2020 amendments, a Title IX Coordinator should initiate a complaint when the alleged conduct presents an immediate and serious threat to the health or safety of a complainant or other persons or would prevent the recipient from affording a nondiscriminatory environment for all students. To make this decision, a Title IX Coordinator may weigh the following factors, which take into account both a recipient's duty to ensure equal access to its education program or activity and a nondiscriminatory educational environment as well as the wishes of an individual complainant not to proceed with a complaint investigation.
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In addition to considering the alleged sex discrimination itself and the factors above, the Department notes that a Title IX Coordinator may also consider factors such as the ones below in determining whether to initiate a complaint to address sex discrimination in the recipient's education program or activity:
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Finally, the Department notes that in cases of sex discrimination by a recipient's employee, a Title IX Coordinator may be more likely to initiate the recipient's grievance procedures, even if the individual complainant does not wish to do so, because of considerations specific either to the affected workplace or the students with which the employee works, if any.
Specifically, proposed § 106.44(f)(6) would require a Title IX Coordinator who has been notified of conduct that may constitute sex discrimination under Title IX to take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur. These steps would be taken in addition to any supportive measures a Title IX Coordinator may offer an individual complainant under proposed § 106.44(f)(3) or remedies a complainant may receive if a recipient either initiates its grievance procedures under proposed § 106.45, and if applicable proposed § 106.46, and determines that sex discrimination occurred or affords the parties an informal resolution process. Proposed § 106.44(f)(6) would further recognize that, consistent with the recipient's obligation to operate its education program or activity free from sex discrimination, a Title IX Coordinator must take appropriate prompt and effective steps outside of a recipient's grievance procedures, when necessary, to ensure that sex discrimination does not continue or recur.
In addition, under proposed § 106.44(f)(6), a Title IX Coordinator would be required, as appropriate, to take other prompt and effective steps in response to information about conduct that may constitute sex discrimination under Title IX regardless of whether the recipient has also initiated its grievance procedures or facilitated an informal resolution process for the parties. The Department proposes these additional steps to address two distinct concerns. First, sex discrimination that is not investigated through a recipient's grievance procedures or addressed by the parties through an informal resolution process, because a complaint was not made or initiated by the recipient's Title IX Coordinator or the parties did not elect to participate in an informal process when offered to them, may nevertheless require prompt and effective action by the recipient so sex discrimination does not continue or recur in its education program or activity. And second, even if a recipient's grievance procedures or informal resolution process fully resolve the parties' needs, sex discrimination in the recipient's education program or activity may impact individuals beyond the parties. In such cases, Title IX's prohibition on sex discrimination would also require a recipient's Title IX Coordinator to take additional prompt and effective steps to ensure sex discrimination does not continue or recur for the recipient's broader educational community. To address both concerns, the Department proposes in § 106.44(f)(6) that a recipient's Title IX Coordinator would need to take other prompt and effective steps to ensure a nondiscriminatory educational environment for the complainant and for others within its educational environment who are affected by the discrimination, as appropriate under the circumstances.
Although proposed § 106.44(f)(6) does not prescribe the specific steps that are necessary for a recipient to ensure that the sex discrimination does not continue or recur in its education program or activity, in all cases, a Title IX Coordinator's response must be effective to end the sex discrimination, prevent its recurrence, and remedy its effects. To ensure an effective response, the proposed regulation would require that a Title IX Coordinator must consider the report of possible sex discrimination in light of information reasonably available to the Title IX Coordinator. A Title IX Coordinator must also ensure that the response addresses any risk to the complainant of harm that is related to the allegations of sex discrimination, if a recipient did not initiate its grievance procedures or facilitate an informal resolution process, and to others within the school's educational environment who may be impacted by the discrimination. The steps a Title IX Coordinator would need to take will vary depending on the nature of the allegations, the source of the complaint, the individuals involved (
If a recipient addressed a complaint through its grievance procedures, it may have access to specific information that the sex discrimination had an impact on the recipient's educational community beyond the parties. Even if a recipient did not investigate a complaint through its grievance procedures, the recipient's Title IX Coordinator may have access to information, including past reports to the Title IX Coordinator, corroborating information such as video footage, visitor logs available to the recipient, or written documentation, and any other relevant information that suggest the conduct has impacted the complainant and other members of the recipient's educational community. A Title IX Coordinator may need to speak with the respondent, if known, and other students or individuals who may have witnessed the reported sex discrimination or have information about the sex discrimination to determine what occurred or whether additional steps are necessary to ensure that sex discrimination does not continue or recur in its education program or activity.
The Department recognizes that it would not always be necessary for a Title IX Coordinator to take additional steps to ensure that sex discrimination does not continue or recur in its education program or activity, for example, when the sex discrimination involved only the parties and did not impact others participating or attempting to participate in the recipient's education program or activity, and the sex discrimination was addressed fully through a recipient's grievance procedures or informal resolution process. However, in all cases, when a recipient's response to sex discrimination is not effective to end the sex discrimination and prevent the recurrence of discrimination for the complainant or the recipient's broader educational community, under the proposed regulations, a Title IX Coordinator must reevaluate the recipient's response and implement other approaches. In addition, when a Title IX Coordinator fails to take prompt and effective steps to end sex discrimination and prevent its recurrence, a recipient would be responsible for remedying the discriminatory effects of its inaction. For example, if a Title IX Coordinator delayed responding to a report of sex discrimination and as a result the complainant continued to experience sex discrimination that caused the complainant's grades and health to suffer, the recipient would be responsible for remedying these harms. This may require a recipient to permit the complainant to retake courses or resubmit assignments without academic or financial penalty or to reimburse the complainant for counseling expenses incurred while the recipient delayed responding. Affording remedies in these
When a recipient has not initiated its grievance procedures, a Title IX Coordinator may need to take non-disciplinary action to stop the discrimination, such as instituting restrictions on contact between the parties, barring a third party from visiting the recipient's campus, or other action consistent with the recipient's policies. In some cases, after taking these steps, a Title IX Coordinator may learn of additional incidents or obtain information that causes the Title IX Coordinator to revisit whether to initiate a complaint under the recipient's grievance procedures. For example, if the Title IX Coordinator determines that the recipient must impose disciplinary sanctions on a respondent to effectively end the sex discrimination and prevent its recurrence, the Title IX Coordinator would need to initiate the recipient's grievance procedures under proposed § 106.45, and if applicable proposed § 106.46, and would be able to impose sanctions only if there is a determination that the respondent violated the recipient's policy prohibiting sex discrimination. However, in many cases, a Title IX Coordinator's ability to take prompt and effective steps to end the sex discrimination and prevent its recurrence may not warrant imposition of discipline or otherwise require the Title IX Coordinator to initiate its grievance procedures.
To ensure sex discrimination does not continue or recur and deny equal access to its education program or activity for a recipient's educational community, a Title IX Coordinator may need to provide additional training for staff on how to respond appropriately to sex discrimination, monitor known risks of sex discrimination in programs and activities in which sex discrimination has been reported in the past, or pursue strategies other than discipline to address the conduct. For example, a Title IX Coordinator may need to take steps to repair an educational environment in which sex discrimination occurred, such as within a specific class, department, athletic team, or program. A Title IX Coordinator may also consider providing educational programming aimed at the prevention of sex discrimination.
Finally, a Title IX Coordinator's obligations under proposed § 106.44(f)(6) may also include taking action related to a third party who is engaging in sex discrimination. For example, if a Title IX Coordinator is notified that a third party who is not a student or an employee of the recipient is attending events organized by the recipient and engaging in harassing or discriminatory behavior at such events, the Title IX Coordinator would need to take prompt and effective action to end such discrimination and prevent its recurrence even if no complaint is made. In this example, the Title IX Coordinator may choose to bar the third party from the recipient's events or campus in general, or otherwise take appropriate prompt and effective steps to ensure sex discrimination does not continue or recur in its education program or activity.
Proposed § 106.44(g)(2) would clarify that supportive measures can include measures that burden a respondent, such as requiring changes in a respondent's class, work, housing, extracurricular or any other activity. Proposed § 106.44(g)(2) would, however, place limits on the ability of a recipient to impose measures that burden a respondent, including requiring that such measures are imposed only during the pendency of a recipient's grievance procedures under proposed § 106.45, and if applicable proposed § 106.46, requiring that they be terminated at the conclusion of the grievance procedures, and requiring that they must be no more restrictive of the respondent than necessary to restore or preserve the complainant's access to the recipient's education program or activity. In addition, under this proposed provision a recipient may not impose such supportive measures for punitive or disciplinary reasons. Proposed § 106.44(g)(4) would also require the recipient to provide a respondent burdened by a supportive measure with the opportunity to seek modification or termination of such measures before they are imposed, or, if necessary under the circumstances, as soon as possible after the measure has taken effect, by appeal to an official other than the one who originally imposed the measures. The Department further proposes that a recipient must also provide a complainant or respondent affected by a supportive measure with the opportunity to seek additional modification or termination of such supportive measure if circumstances change materially.
The proposed regulations would also permit a recipient to modify, terminate, or continue supportive measures, other than those that burden a respondent, at the conclusion of grievance procedures or the informal resolution process (proposed § 106.44(g)(3)); protect complainant and respondent privacy by permitting disclosure of supportive measures only as necessary to provide them or when a recipient needs to
Consistent with this definition, proposed § 106.44(g) would require a Title IX Coordinator to offer supportive measures not only to a complainant, but also to a respondent, when necessary to accomplish the objective of ensuring that party's access to the recipient's education program or activity. The appropriate supportive measures offered to a complainant or respondent would be determined by the recipient, as set out in proposed § 106.44(g), and would be offered and coordinated by the Title IX Coordinator. Proposed § 106.44(f)(3) and (g) would maintain the requirement from the current definition of “supportive measures” in § 106.30 that a Title IX Coordinator must offer supportive measures to the complainant before or after a complaint has been made or when no complaint has been made. Depending on the circumstances, it might be appropriate for a Title IX Coordinator to offer supportive measures to a respondent if, and then after, the respondent has received notice of the allegations.
In addition, the proposed regulations would also clarify that supportive measures are available for all forms of sex discrimination. Despite the current definition of “supportive measures” in § 106.30, which states that the measures are available for complainants and respondents, current § 106.44(a) requires only that a recipient, in responding to actual knowledge of sexual harassment in an education program or activity, offer supportive measures to a complainant. To align with the current and proposed definitions of “supportive measures,” as well as proposed § 106.44(a), the Department proposes requiring a recipient to offer supportive measures whenever a Title IX Coordinator is notified of any type of conduct that may constitute sex discrimination under Title IX, not just sex-based harassment. For allegations of sex discrimination other than sex-based harassment or retaliation, proposed § 106.44(g) would clarify that a recipient's provision of supportive measures would not require the recipient, its employee, or other person authorized to provide aid, benefit or services on the recipient's behalf to alter the alleged discriminatory conduct for the purpose of providing a supportive measure. However, if the recipient determines that sex discrimination occurred, the recipient would then be required to alter or end the discriminatory conduct. For example, in response to a complaint about sex discrimination in grading, a recipient would not be required to change the complainant's grade as a supportive measure while an investigation is pending. If the recipient determines that sex discrimination in grading occurred, the recipient might then be required to change the complainant's grade when providing a remedy to the complainant.
Factors a recipient may consider in offering such supportive measures include: (1) the need expressed by the complainant or respondent; (2) the ages of the parties involved, the nature of the allegations, and their continued effects on the complainant or respondent; (3) whether the parties continue to interact directly in the recipient's education program or activity, including student employment, shared residence or dining facilities, class, or while using campus transportation; and (4) whether steps have already been taken to mitigate the harm from the parties' interactions, such as implementation of a civil protective order. In addition to these factors, a recipient should consider the supportive measures a complainant or respondent may need to facilitate their participation in the recipient's grievance procedures or informal resolution process. The Department recognizes that participation in grievance procedures or an informal resolution process may necessitate supportive measures to address not only the stress associated with participation, but also conflicts with classes, assignment deadlines, student employment, and other commitments that may arise as a result of that participation.
Proposed § 106.44(g)(2) would also clarify that a recipient has the discretion to impose supportive measures that temporarily burden a respondent but not for the purpose of discipline or punishment. This is consistent with the current definition of “supportive measures,” which requires that supportive measures be non-disciplinary and non-punitive in nature and that they are not unreasonably burdensome to the non-requesting party as a procedural protection for a respondent. 34 CFR 106.30. In the preamble to the 2020 amendments, the Department also stated that any disciplinary sanctions described or listed by the recipient in its own grievance process would constitute actions that the recipient considers disciplinary and, thus, could not constitute supportive measures under current § 106.30. 85 FR 30182. OCR received feedback from stakeholders through the June 2021 Title IX Public Hearing, as well as in listening sessions, that requested additional options for supportive measures during the pendency of an investigation to protect the complainant's access to the
After careful consideration of these comments, the Department proposes clarifying in § 106.44(g) that supportive measures would include measures that burden a respondent that are imposed temporarily during the pendency of a recipient's grievance procedures under proposed § 106.45, and if applicable proposed § 106.46. The Department also proposes clarifying that supportive measures that burden a respondent may include actions that a recipient has also identified as possible disciplinary sanctions. After reweighing the facts and circumstances, it is the Department's tentative position that actions by a recipient are not inherently disciplinary simply because they are listed as possible disciplinary sanctions, and that a recipient may utilize them as supportive measures as long as such actions are offered to restore or preserve a complainant's access to a recipient's education program or activity and not imposed for punitive or disciplinary purposes. In the Department's tentative view, these clarifications would provide a recipient with more discretion to make case-specific judgments about how best to proceed in cases in which one party or the other will necessarily be denied some access to a program or activity during the pendency of grievance procedures, but only if the measures meet the proposed regulations' requirements to ensure fairness to all parties as just described. In deciding which supportive measures are reasonable, a recipient should consider whether supportive measures that do not burden the respondent would suffice to preserve the complainant's access to the recipient's education program or activity and, if not, should consider the impact of any contemplated supportive measures that temporarily burden the respondent or the respondent's access to the recipient's education program or activity. In undertaking this evaluation, a recipient must ensure that a supportive measure preserves or restores the complainant's nondiscriminatory access to the recipient's education program or activity.
In light of feedback OCR received from stakeholders during listening sessions and in connection with the June 2021 Title IX Public Hearing emphasizing the potential harm to a respondent's education from the unnecessary or inappropriate implementation of supportive measures that burden the respondent and to ensure fairness for all parties to a recipient's grievance procedures, the Department proposes, in § 106.44(g)(2), to include limitations on a recipient's discretion to impose these measures. The proposed limitations would require that supportive measures that burden a respondent be imposed only during the pendency of the recipient's grievance procedures and terminate following the recipient's determination regarding the allegations in the complaint. Further, proposed § 106.44(g)(2) would require supportive measures that burden a respondent to be reasonable and no more restrictive than necessary to restore or preserve the complainant's access to the education program or activity. The Department proposes these limits to ensure not only that a recipient considers the needs of the individuals involved, but also to ensure that, even when similar actions are involved, supportive measures remain distinct from disciplinary sanctions, which are consequences that can be imposed only following a determination that the respondent violated the recipient's prohibition on sex discrimination. As explained in the discussions of proposed § 106.44(h) and (i), nothing in proposed § 106.44(g)(2) should be construed as precluding a recipient from removing a respondent from the recipient's education program or activity on an emergency basis if the recipient determines that an immediate and serious threat to the health and safety of students or other persons justifies the removal and the requirements of proposed § 106.44(h) are otherwise followed, nor would proposed § 106.44(g)(2) preclude a recipient from placing an employee respondent on administrative leave from employment responsibilities under proposed § 106.44(i).
The Department recognizes that by imposing supportive measures that burden a respondent, the recipient is potentially requiring the respondent to temporarily alter or forego access to the education program or activity during the pendency of grievance procedures. In view of this, the Department proposes requiring the recipient to provide the respondent procedural protections when imposing such measures. Proposed § 106.44(g)(4) would therefore require a recipient to provide a respondent with the opportunity to seek termination or modification of a burdensome supportive measure before the measure is imposed, or if necessary under the circumstances, as soon as possible after the measure has taken effect, from an impartial employee who is someone other than the employee who made the contested decision. The employee imposing the supportive measures or reviewing a request to terminate or modify such measures may be the Title IX Coordinator, who is also tasked with coordinating any supportive measures provided to the parties. However, to ensure that a respondent receives an independent review, the Department proposes that neither the Title IX Coordinator nor any other employee may both impose and review the same supportive measures. Moreover, proposed § 106.44(g)(4) would require that the recipient offer this opportunity to review prior to imposing any supportive measures that burden a respondent or, if necessary under the circumstances, as soon as possible after the measure has taken effect. Offering the opportunity for review prior to the imposition of the measures is preferable from the standpoint of ensuring that a respondent is not unnecessarily restricted or deprived of educational opportunities. Accordingly, whenever it is practical and appropriate, the recipient should provide the respondent an opportunity to review and seek modifications of burdensome supportive measures prior to imposing them. Yet the Department proposes to offer recipients flexibility concerning timing in order to account for the wide range of supportive measures available under proposed § 106.44(g)(1) and to allow a recipient to take into account the respondent's interests as well as other concerns, such as ensuring the complainant's safety or
Proposed § 106.44(g)(1) would specifically identify restrictions on contact as an example of a supportive measure that may be utilized by a recipient. Current § 106.30 includes only mutual restrictions on contact between the parties on the list of possible supportive measures. However, in the preamble to the 2020 amendments, the Department responded to concerns that mutual restrictions on contact may unfairly burden a complainant, may be unnecessary, and may fail to ensure complainant safety. 85 FR 30184. In particular, stakeholders had asked the Department to clarify that recipients may also impose non-mutual restrictions on the parties when appropriate. Although the Department declined to modify § 106.30 to include non-mutual restrictions on contact in the list of supportive measures, the preamble clarified that their absence from the list “does not mean that one-way no-contact orders are never appropriate.”
To ensure that recipients understand that they are not limited to imposing mutual restrictions on contact between the parties as supportive measures, the Department proposes eliminating the term “mutual” from the non-exhaustive list of supportive measures under § 106.44(g)(1). The Department also reiterates that the list of possible supportive measures in proposed § 106.44(g)(1) would be illustrative and not exclusive. As with other supportive measures, a recipient should consider the appropriateness and necessity of non-mutual restrictions on contact in light of the factors described above, including a party's expressed need for a non-mutual restriction, the nature of the allegations and their continued effects on the parties, and whether and how the parties continue to interact in the recipient's education program or activity. In addition, because a non-mutual restriction on contact may be a supportive measure that burdens a respondent, a recipient should also pursue less restrictive supportive measures to restore or preserve a complainant's access to the recipient's education program or activity when possible and only impose non-mutual restrictions on contact when necessary and when no other supportive measure will suffice.
Finally, the Department also includes in proposed § 106.44(g)(1) training and education programs related to sex-based harassment as supportive measures. Training and education programs are within the scope of the current definition of “supportive measures” in § 106.30, which states that supportive measures are designed to deter future sex-based harassment. The Department recognizes the significant role training plays in shaping a school and campus climate and environment, especially when the training is interactive and incorporates hypothetical examples of scenarios that may arise for recipients. In some circumstances, providing training and education programs to parties regarding a recipient's policies may be helpful in restoring or preserving access to a recipient's education program or activity or may assist the parties in ensuring meaningful participation in the recipient's grievance procedures. Although such training may be implemented as a remedy following a determination that sex discrimination occurred, there may also be circumstances in which training is warranted during the pendency of the recipient's grievance procedures or independent of the outcome of any grievance procedures. For example, when a recipient receives a complaint of sex-based taunts occurring at school athletic events, it may be clear to the recipient that additional training for the larger school community is necessary to preserve access to a recipient's education program or activity regardless of the ultimate outcome of the complaint.
Proposed § 106.44(g)(6) would incorporate the requirement from the current definition of “supportive measures” and the requirement in current § 106.44(a) that a recipient's Title IX Coordinator is responsible for offering and coordinating supportive measures. 34 CFR 106.30 and 106.44(a). This responsibility would not require the Title IX Coordinator to be the employee who implements the supportive measures, but the Title IX Coordinator would ultimately be responsible for ensuring that the measures are implemented appropriately. For example, if the Dean of Academic Affairs implements a supportive measure during the recipient's grievance procedures to move a student respondent from one laboratory to another and bar their entry into their previous laboratory, the Title IX Coordinator would be responsible for ensuring that the supportive measure is fully implemented, including that the necessary personnel are notified to deactivate the student respondent's identification card or otherwise bar entry to the respondent's previous laboratory.
In addition, OCR received feedback through the June 2021 Title IX Public Hearing and listening sessions that current § 106.44(c) sets too high a bar to effectuate the provision's goal of safety. Specifically, postsecondary institutions and safety compliance officers noted that by limiting emergency removals to circumstances in which a respondent poses an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment, current § 106.44(c) fails to account for the significant non-physical harms some respondents pose to complainants and other individuals in connection with alleged sex-based harassment. Some threats may present an immediate and serious non-physical threat to student safety that warrants the emergency removal of a respondent following an individualized assessment. For example, a complainant who is stalked by a respondent may not experience a physical threat as a result of stalking, yet the stalking could present a serious and immediate threat to the student's mental health. The Department seeks to address such serious non-physical threats on the same basis as physical threats. Therefore, the Department proposes clarifying the scope of threat to encompass all serious threats to health and safety, which would include but is not limited to threats to physical health and safety, to account for the non-physical threats that may justify immediate action. To accomplish this change, the Department proposes deleting the term “physical” as a restrictive qualifier on threats to health and safety and adding the term “serious” to confirm that non-serious threats do not warrant emergency removal. It is the Department's tentative view that this proposed revision would give recipients the necessary flexibility to ensure a safe campus community while protecting the rights of all students. The Department further notes that the current regulations require a recipient to provide “the respondent with notice and an opportunity to challenge the decision immediately following the removal,” 34 CFR 106.44(c), a protection that the proposed regulations retain. Nothing in the current or proposed regulations would preclude a respondent from bringing an additional challenge to the emergency removal at a later time if circumstances have changed or new facts come to light that warrant reconsideration of the recipient's decision.
Current § 106.71(a) requires the recipient to keep confidential the identities of the parties or witnesses except for reasons required by law, permitted by FERPA, necessary to carry out Title IX responsibilities, or when the parties themselves permit disclosure of their own identities. The Department proposes changes to this prohibition on disclosure for clarity and also proposes moving this prohibition to proposed § 106.44 because it relates to a recipient's broader responsibilities to address information about conduct that may constitute sex discrimination in its program or activity, as addressed in proposed § 106.44, and does not identify conduct that constitutes “retaliation,” as defined in proposed § 106.2.
The Department proposes modifying the protection of this provision to apply beyond parties and witnesses to also
The Department also seeks to provide clarity by relocating the prohibition on a recipient disclosing the identity of persons participating in any way in its Title IX processes to proposed § 106.44(j) because this requirement is not limited to retaliation, which is the subject of proposed § 106.71. The Department's tentative position is that this change would reduce confusion and enhance clarity about the scope of a recipient's obligation to keep these persons' identities confidential. As in current § 106.71(a), proposed § 106.44(j) would prohibit a recipient from disclosing the identities of parties, witnesses, or others participating in the recipient's Title IX processes unless one of the stated exceptions applies. The Department proposes retaining the stated exceptions from current § 106.71(a) with minor changes in wording to be consistent with the proposed regulations. The prohibition in proposed § 106.71(a) on “retaliation,” as defined in proposed § 106.2, would also continue to apply to any intimidation, threat, coercion, or discrimination by the recipient for the purpose of retaliation, including disclosures about persons participating in any of the recipient's Title IX processes. In the preamble to the 2020 amendments, the Department explained that unnecessary exposure of these persons' identities for any reason may lead to retaliation:
[U]nnecessarily exposing the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, may lead to retaliation against them and [the Department] would like to prevent such retaliation.
85 FR 30537. Through the June 2021 Title IX Public Hearing, OCR heard support for this prohibition because this type of disclosure may directly raise the risk of, and even encourage, retaliation. These stakeholders observed that once the information is released by the recipient, students may take sides and engage in retaliation against parties, witnesses, and those involved in administering the grievance procedures. In addition, stakeholders noted that some students may not choose to share with their classmates or family members that they reported, made a complaint, or participated in the recipient's grievance procedures, and disclosures by others could result in disclosures to those individuals. The Department notes that the same may be true for employees who may choose not to share their participation with colleagues. The Department also reiterates that if the disclosure were made for retaliatory purposes as discussed by stakeholders, then it would constitute retaliation and would be prohibited by proposed § 106.71(a). However, the Department's tentative view is that, in addition to a disclosure made for retaliatory purposes, any disclosure for reasons other than those permitted or required by proposed § 106.44(j) may chill reporting of sex discrimination or participation in the recipient's efforts to address sex discrimination. Therefore, the Department's tentative position is that, independent of its obligation to prohibit retaliation, including its own retaliatory disclosure of the identities of parties, witnesses, or other participants under proposed § 106.71, the recipient must not disclose these identities other than as provided in proposed § 106.44(j) so that the recipient's own actions do not create a barrier to these individuals' participation in the recipient's efforts to address information that may constitute sex discrimination. In this regard, the Department's proposal would clarify that a recipient's disclosure of the identity of a party, witness, or other participant except as otherwise specified, is prohibited.
There are currently several restrictions on a recipient's discretion to offer an informal resolution process. A recipient must not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student; require informal resolution as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, the waiver of the right to an investigation and adjudication of formal complaints of sexual harassment; require the parties to participate in an informal resolution process; or offer an informal resolution process unless a formal complaint is filed.
The Department proposes clarifying that a recipient would have discretion regarding whether to offer an informal resolution process at any time prior to determining under proposed § 106.45, and if applicable proposed § 106.46, whether sex discrimination occurred, which is a point not explicitly addressed in the current regulations. The Department also proposes, at § 106.44(k)(1)(i) and (ii), making clear that this discretion would include the recipient's authority to determine whether informal resolution is appropriate and to decline to offer informal resolution regardless of one or more of the parties' wishes, including, for example, if the recipient determines that the alleged conduct would present a future risk of harm to others. Proposed § 106.44(k)(1)(i) would also make clear that a recipient may offer informal resolution without first requiring that a complaint be made; rather, a recipient has discretion to determine whether it is appropriate to offer an informal resolution process when it receives information about conduct that may constitute sex discrimination under Title IX, or a complaint of sex discrimination is made.
The Department also proposes clarifying that a recipient must not require or pressure the parties to participate in an informal resolution process instead of the recipient's grievance procedures. Proposed § 106.44(k)(2) would preserve the current requirement that the recipient must obtain the parties' voluntary consent to the informal resolution process and must not require waiver of the right to an investigation and adjudication of a complaint as a condition of enrollment or continuing enrollment, or employment or continuing employment, or exercise of any other right.
The Department proposes keeping the same elements currently required for written notice of the informal resolution process and would add requirements that provide the parties with more detailed information about what an informal resolution process would entail. This would include, in proposed § 106.44(k)(3), the types of potential terms that the parties might voluntarily agree to as a part of an informal resolution process, including, among others, restrictions on contact. In addition, proposed § 106.44(k)(3) would require a recipient to communicate that and other specified information to the parties before initiating an informal resolution process. A recipient would be required to communicate this information in writing only when offering informal resolution of sex-based harassment complaints involving a postsecondary student complainant or respondent in proposed § 106.46(j).
Proposed § 106.44(k)(1)(i) and (ii) also would make clear that a recipient would have the discretion to determine that informal resolution is not appropriate and decline to offer it regardless of one or more of the parties' wishes. This would clarify that a recipient has discretion to consider the context and circumstances when it receives information about conduct that may constitute sex discrimination under Title IX or a complaint of sex discrimination is made in deciding whether to offer an informal resolution option. The Department would like to ensure that recipients are aware of their flexibility regarding informal resolution, for example, in circumstances in which a recipient determines that the alleged conduct would present a future risk of harm to others and an informal resolution process would be inappropriate. This would allow a recipient to tailor its response to the needs of the parties, subject to the overall guardrails provided by the regulations. The Department also notes that, consistent with proposed § 106.44(f)(1), a recipient must exercise this discretion in a manner that is equitable to the parties and within its Title IX process as a whole; it may not act arbitrarily or otherwise impermissibly in offering or declining to offer an informal resolution process. A recipient's discretion would be further limited by proposed § 106.44(k)(2) which states a recipient must not require or pressure the parties to participate in an informal resolution process, and that the recipient must obtain the parties' voluntary consent to the informal resolution process.
Proposed § 106.44(k)(3)(ii) would require a recipient to explain the requirements of the informal resolution process it chooses to offer to the parties. This explanation could include a discussion about to what extent, if any, the proceedings will be kept confidential. Informal or alternative dispute resolution processes often are confidential to ensure that the parties engage fully and candidly in the process. A recipient, if it chooses, should inform the parties if the informal resolution process would be confidential, and how the recipient would respond to any admissions made by a party. For example, the recipient could inform the parties that if someone makes an admission of criminal activity, that information could be forwarded to relevant law enforcement authorities. Similarly, the recipient could specify that it would keep confidential any record obtained solely through the informal resolution process, as stated in proposed § 106.44(k)(3)(vii), unless such disclosure is required by law, for example under a subpoena.
A recipient might also clarify the consequences that would follow upon learning of any fraud by a party to an informal resolution agreement. For example, if a recipient learns that a party to an informal resolution agreement made a material misstatement of a fact, or made fraudulent representations, that another party relied upon in reaching the agreement, then the recipient could decide to void the agreement and resume the grievance procedure or pursue other actions against that defrauding party. Finally, proposed § 106.44(k)(3)(iii) would make explicit that the parties have the right to withdraw from the informal resolution process prior to agreeing to a resolution and that any party could initiate or resume the recipient's grievance procedures. These additional requirements provide important information to the parties so that they have a complete understanding of all aspects of the informal resolution process. The Department notes that informal resolution of a complaint under Title IX would not necessarily resolve a recipient's obligations under other Federal law (
In addition, proposed § 106.44(k)(4) would require that the facilitator of the informal resolution process not be the same person as the investigator or decisionmaker in the recipient's grievance procedures. The Department proposes adding this provision to further protect against any improper access, consideration, disclosure, or other use of information obtained solely through the informal resolution process, or conflict of interest, in the event a party terminates informal resolution and the complaint proceeds to grievance procedures under proposed § 106.45, and if applicable proposed § 106.46.
Grievance procedures are a critical component of effective enforcement of Title IX's prohibition on sex discrimination because they ensure that a recipient has a process in place for investigating and resolving complaints of sex discrimination. For this reason, since 1975, the Title IX regulations have required a recipient to adopt and publish grievance procedures that provide for the prompt and equitable resolution of complaints of sex discrimination.
OCR's interpretation of the requirement to provide prompt and equitable grievance procedures has always been informed by the due process rights of the persons involved in a public recipient's grievance procedures. Although it does not enforce the Due Process Clause, “[t]he Department, as an agency of the Federal government, is subject to the U.S. Constitution, including the Fifth Amendment, and will not interpret Title IX to compel a recipient, whether public or private, to deprive a person of due process rights.” 85 FR 30051, n.226 (citing 2001 Revised Sexual Harassment Guidance at 22). And although the Due Process Clause does not apply to private recipients, the Department's proposed regulations, consistent with the 2020 amendments, require all recipients to adopt grievance procedures that provide for the fair resolution of complaints of sex discrimination.
The Supreme Court and other Federal courts have recognized that procedural due process requirements depend on the circumstances of each particular case.
Federal appellate courts have generally determined that a public postsecondary institution's disciplinary proceedings are subject to procedural due process requirements.
The Department explained in the preamble to the 2020 amendments that although the Supreme Court has held that sexual harassment is a form of sex discrimination under Title IX and set out the circumstances under which a recipient may be liable for monetary damages when a student or employee sexually harasses a student, “the Supreme Court's Title IX cases have not specified conditions under which a recipient must initiate disciplinary proceedings against a person accused of sexual harassment, or what procedures must apply in any such disciplinary proceedings.” 85 FR 30046. More specifically, the Department recognized that “the Supreme Court has not ruled on what constitutional due process looks like in the `particular situation' of Title IX sexual harassment adjudications . . . ”
The Department nonetheless articulated in the 2020 amendments its understanding of the significant role due process principles play in shaping fair grievance procedures and affirmed that its understanding was consistent with OCR's prior guidance that “the rights established under Title IX must be interpreted consistent with any federally guaranteed due process rights involved in a complaint proceeding” and “[p]rocedures that ensure the Title IX rights of the complainant, while at the same time according due process to both parties involved, will lead to sound and supportable decisions.”
In adopting very specific requirements for grievance procedures for formal complaints of sexual harassment, the Department explained that it had “determined that the current regulatory reference to `grievance procedures' that are `prompt and equitable' does not adequately prescribe a consistent, fair, reliable grievance process for resolving allegations of Title IX sexual harassment.”
Having had some experience with the implementation of the 2020 amendments, stakeholders representing elementary school and secondary school teachers, administrators, and professional staff, postsecondary institution administrators and faculty, students and parents, professional organizations, advocacy groups, and States Attorneys General stressed to OCR, in listening sessions and through the June 2021 Title IX Public Hearing, that the Department should revise the grievance procedures required under current § 106.45 to account for concerns and challenges that this implementation presented across these settings. To avoid confusion, the preamble discussion refers to the procedures set out in proposed §§ 106.45 and 106.46 as “grievance procedures,” even though the preamble to the 2020 amendments generally refers to procedures required under current § 106.45 as a “grievance process.”
Administrators at elementary schools and secondary schools described their struggle to implement the grievance procedures under the current regulations and expressed the need for grievance procedures that would allow for more flexibility. For example, stakeholders shared that the grievance procedures should permit them to quickly separate children in response to some incidents of sex-based harassment, such as when administrators of elementary schools and secondary schools need to be able to immediately address certain behavior on the playground. Stakeholders also stressed the need for grievance procedures in
OCR also received feedback from multiple stakeholders that a process that may have taken days under an elementary school or secondary school's previous grievance procedures now takes several months under the 2020 amendments because of these and other time-consuming requirements, including the need to create an investigative report for the parties' review and written response at least ten days prior to a hearing or other time of determination (current § 106.45(b)(5)(vii)). Other stakeholders urged the Department to establish different grievance procedures for elementary schools and secondary schools than those required for postsecondary institutions, noting their view that the 2020 amendments were clearly focused on postsecondary institutions.
The Department has preliminarily determined that certain grievance procedure requirements are appropriate for, and necessary to effectuate, Title IX's nondiscrimination mandate with respect to all types of sex discrimination complaints at all types of recipients. In addition, the Department has preliminarily determined that certain additional procedural protections are appropriate for one particular subset of
The Department also proposes adding § 106.45(a)(2)(iv) to expressly state that third parties who are participating or attempting to participate in the recipient's education program or activity may make complaints of sex discrimination under proposed § 106.45.
The Department explained in the preamble to the 2020 amendments that the nature of the protections needed “in the `particular situation' of elementary and secondary schools may differ from protections necessitated by the `particular situation' of postsecondary institutions.” 85 FR 30052 (footnotes omitted). The Department maintains this view, and also currently believes that the specific procedures necessary to afford prompt and equitable grievance procedures that are designed to ensure a fair and reliable process for sex discrimination complaints will differ based on the nature of the allegations (
The Department proposes a comprehensive framework for grievance procedures that builds upon the grievance procedures required under the 2020 amendments, with certain modifications to address the concerns noted above, including to make that framework easier to follow and implement and to preserve discretion
The proposed regulations at §§ 106.44, 106.45, and 106.46 would clarify the obligations of a recipient to respond promptly and effectively to information and complaints about sex discrimination in its education program or activity in a way that ensures full implementation of Title IX. The Department invites comments on whether there are additional requirements that should be included in, or removed from, the current and proposed regulations to assist recipients in meeting their obligation under Title IX to provide an educational environment free from discrimination based on sex. The Department also seeks comment on whether and how any of the proposed grievance procedures (or any proposed additions from commenters) should apply differently to various subgroups of complainants or respondents, such as students or employees, or students at varying educational levels.
The Department's tentative view is that the provisions in proposed § 106.45 would establish the basic elements of a fair process, set clear guideposts for prompt and equitable grievance procedures, and ensure transparent and reliable outcomes for recipients, students, employees, and others participating or attempting to participate in a recipient's education program or activity. These grievance procedure requirements would apply to all complaints of sex discrimination, including sex-based harassment, at all recipients. The provisions in proposed § 106.45(b) include basic requirements that are overarching and apply at all or multiple stages of a recipient's grievance procedures. Some of these basic requirements are already included, in whole or in part, in current § 106.45, such as equitable treatment of complainants and respondents and a duty to ensure that any Title IX Coordinator, investigator, or decisionmaker involved in a recipient's grievance procedures does not have a conflict of interest or bias for or against an individual complainant or respondent or against complainants or respondents generally. The Department also proposes requiring grievance procedures for all sex discrimination complaints to include provisions regarding notice to the parties of allegations of sex discrimination (proposed § 106.45(c)), reasonably prompt timeframes for the major stages of a recipient's grievance procedures (proposed § 106.45(b)(4)), rules regarding what evidence is allowed in a recipient's grievance procedures and how a decisionmaker must weigh and assess the evidence (proposed § 106.45(b)(6) and (7), (h)(1)), and provisions to ensure an adequate, reliable, and impartial investigation of sex discrimination complaints (proposed § 106.45(f)). These provisions build on the requirements of current § 106.45, which the Department explained included specific requirements to afford complainants and respondents in complaints of sexual harassment “clear, strong procedural rights and protections that foster a fair process leading to reliable outcomes,” and to provide “consistency, predictability, and transparency as to a recipient's obligations.”
Through its enforcement work, OCR has also recognized that reasonably prompt timeframes and an adequate, reliable, impartial investigation, among other requirements in proposed § 106.45, are essential to ensuring a prompt and equitable resolution for all sex discrimination complaints, including sex-based harassment. Because these requirements are fundamental to a fair process, the Department anticipates that many schools already incorporate them in their grievance procedures for sex discrimination complaints.
The Department's current position is that the requirements in proposed § 106.46, which are incorporated from current § 106.45 with modifications as explained in greater detail in the discussion of individual sections in § 106.46, would apply only to complaints of sex-based harassment involving a student complainant or student respondent at a postsecondary institution. These requirements afford protections that are appropriate to the age, maturity, independence, needs, and context of students at postsecondary institutions. The Department limited some of the provisions in the 2020 amendments to postsecondary institutions for similar reasons, noting that “postsecondary institutions present a different situation than elementary and secondary schools because, for instance, most students in elementary and secondary schools tend to be under the age of majority such that certain procedural rights generally cannot be exercised effectively (even by a parent acting on behalf of a minor).”
The Department also recognizes that postsecondary students are often newly independent and still learning to self-advocate. To account for this, proposed § 106.46 would retain certain provisions from current § 106.45 that afford postsecondary students greater protections. The Department's tentative view is that the additional requirements in proposed § 106.46 are necessary for students at postsecondary institutions who would not be entitled to have a parent, guardian, or other authorized legal representative present at meetings or proceedings, unlike complainants and respondents in complaints of sex-based harassment at elementary schools and secondary schools. The Department further submits that any delay associated with implementing the additional requirements of proposed § 106.46 would not limit a postsecondary student's ability to understand the consequences of their behavior in the same manner as it could for elementary school and secondary school students. Such delays may limit an elementary school or secondary school's ability to prevent the recurrence of sex discrimination consistent with Title IX, which is of particular concern in the context of full-time, full-week school attendance requirements in elementary school and secondary school settings.
The Department's current view is that the additional requirements of proposed § 106.46 are also not necessary for others, including employees and third parties, who, as noted in the discussion of concerns raised by stakeholders in Feedback from Stakeholders Regarding the Grievance Procedures in Current § 106.45 (Section II.F.1.b), have different relationships with postsecondary institutions and in the case of employees, may be afforded additional rights or protections under Title VII or other laws, agreements, or commitments by the recipient. Affording additional procedural requirements for postsecondary students is also consistent with the Department's understanding of due process as a “ `flexible' concept dictated by the demands of a `particular situation,' ” which in the case of postsecondary institutions addressing complaints of sex-based harassment involving a student complainant or respondent “may dictate different procedures than what might be appropriate in other situations.”
The Department also currently believes that the provisions in proposed § 106.46 for sex-based harassment complaints involving students at the postsecondary level may not be necessary to ensure an equitable process for other types of sex discrimination complaints at the postsecondary level, and could have the unintended consequence of impeding effective enforcement of Title IX for such complaints by adding requirements that may unnecessarily delay a recipient's prompt response to possible sex discrimination. At this time, the Department views these additional provisions as necessary to address sex-based harassment complaints, which allege conduct that is highly personal and often of a different nature than other types of alleged sex discrimination. Sex-based harassment complaints may require greater participation by a complainant and respondent in grievance procedures than other complaints of sex discrimination would require. In fact, not all sex discrimination complaints will involve two parties in a contested factual dispute where credibility determinations may play a critical role. In many sex discrimination complaints, such as complaints alleging unequal treatment of student athletes based on sex, there will not be two parties whose conduct and credibility are closely scrutinized. Instead, these cases, which are often highly contested, require analysis of available data and information regarding the specific factors that apply to equal opportunity in athletics. Similarly, alleged different treatment in grading or in providing opportunities to benefit from specific programs and activities, will require a close analysis of grading rubrics, opportunities offered, and other evidence, if any, of impermissible sex-based different treatment. Yet sex-based harassment complaints subject to the provisions of proposed § 106.46 could, and often would involve a student respondent who faces a potential disciplinary sanction as a consequence of the grievance procedures. The Department submits that the risk of disciplinary sanction of a student respondent necessitates affording additional procedural protections to ensure an equitable outcome. These additional provisions would not be necessary for other complaints of sex discrimination that often would not involve a student respondent facing similar consequences.
To account for all of these differences, under the Department's proposed framework, a postsecondary institution responding to complaints of sex-based harassment involving a student complainant or student respondent would apply the provisions in proposed § 106.46 in addition to the provisions under proposed § 106.45. The additional requirements in proposed § 106.46 for complaints of sex-based harassment would address the specialized needs of postsecondary student complainants and postsecondary student respondents, and, when applied together with the requirements in proposed § 106.45, would afford such students equitable grievance procedures tailored to their circumstances. The Department also proposes several revisions to the provisions from current § 106.45 that are incorporated into proposed § 106.46 to address concerns raised by stakeholders; these changes are explained in greater detail in the discussion of individual sections in proposed § 106.46.
The Department includes the following additional procedural protections for sex-based harassment complaints involving at least one student at a postsecondary institution in proposed § 106.46:
• Provisions governing student employees (proposed § 106.46(b));
• Written notice requirements, including written notice of the allegations as well as written notice of information related to the parties' specific rights under the recipient's grievance procedures (proposed § 106.46(c));
• Additional requirements for complaint dismissal (proposed § 106.46(d)) and investigation (proposed § 106.46(e)) such as the right to an advisor during the investigation (proposed § 106.46(e)(2)), discretion to allow expert witnesses (proposed § 106.46(e)(4)), and equitable access to relevant and not otherwise impermissible evidence (proposed § 106.46(e)(6));
• A process for evaluating allegations and assessing credibility, including a process for evaluating and limiting questions during any hearing (proposed § 106.46(f));
• The option to provide for a live hearing (proposed § 106.46(g)); and
• Written notice related to the parties' rights and responsibilities in a recipient's informal resolution process under proposed § 106.44(k), if one is offered (proposed § 106.46(j)).
Several of the provisions proposed in § 106.46 preserve the requirement that a postsecondary institution provide specified information to the parties in writing. These provisions would require
The Department notes that, as set out in proposed § 106.45(i), the proposed framework for all grievance procedures under proposed § 106.45 would allow a recipient to incorporate any of the additional provisions required in grievance procedures under proposed § 106.46 to grievance procedures under proposed § 106.45, provided they apply equally to the parties.
Current § 106.8(c) requires a recipient to adopt and publish grievance procedures that provide for the prompt and equitable resolution of student and employee complaints alleging any action that would be prohibited by the regulations and a grievance process that complies with current § 106.45 for “formal complaints” as defined in current § 106.30. The current regulations do not include specific requirements for grievance procedures for complaints of sex discrimination other than formal complaints of sexual harassment.
Proposed § 106.45(a)(1) would clarify that for complaints of sex discrimination, a recipient must have prompt and equitable grievance procedures in writing, with provisions that incorporate the requirements of proposed § 106.45. Proposed § 106.45(a)(2) would set out who can make a complaint of sex discrimination requesting that the recipient initiate its grievance procedures. Proposed § 106.45(b) would provide a number of basic requirements that a recipient's grievance procedures for complaints of sex discrimination under proposed § 106.45 would have to include. In addition to the basic requirements, proposed § 106.45 would also include the following provisions: notice of allegations (proposed § 106.45(c)); dismissal of a complaint (proposed § 106.45(d)); consolidation of complaints (proposed § 106.45(e)); complaint investigation (proposed § 106.45(f)); evaluating allegations and assessing credibility (proposed § 106.45(g)); and determination of whether sex discrimination occurred (proposed § 106.45(h)). Proposed § 106.45(i) would also permit a recipient to adopt additional provisions, as long as they apply equally to the parties, and proposed § 106.45(j) would permit a recipient to resolve a complaint through its informal resolution process. Finally, proposed § 106.45(k) would provide that, for complaints alleging sex-based harassment, the grievance procedures must describe the range of supportive measure available and describe (or list) the possible disciplinary sanctions and remedies.
Additional detailed explanation of the requirements of proposed § 106.45 is provided in the discussion of each subsection, including proposed changes from current § 106.45.
Section 106.45(a) Discrimination on the basis of sex
The Department explained in the preamble to the 2020 amendments that current § 106.45(a) merely declares that actions toward a complainant or respondent may constitute sex discrimination. 85 FR 30238-39. The Department also stated that this provision emphasizes that a recipient must not treat a party differently on the basis of sex and that the Department disagreed that the provision creates a new protected class of respondents because it provides protections from sex discrimination to all persons.
After considering the issue and reweighing the facts and circumstances, the Department's tentative view is that § 106.31(a), both in its current form and with the revisions included in the proposed regulations, and current § 106.31(b)(4) are adequate to address the concerns that current § 106.45(a) was drafted to address. In particular, current § 106.31(a) and proposed § 106.31(a)(1) prohibit sex “discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient,” 34 CFR 106.31(a), and § 106.31(b)(4) prohibits a recipient from “subject[ing] any person to separate or different rules of behavior, sanctions, or other treatment” on the basis of sex.
The Department recognizes that not all complaints of sex discrimination involve active participation by a complainant and respondent in the grievance procedures and therefore, some provisions in proposed § 106.45 would not be applicable for all complaints of sex discrimination. This is true for complaints alleging that the recipient's own policy or procedures discriminate based on sex (
Proposed § 106.45(a)(2)(i) through (iii) would allow a “complainant,” defined in proposed § 106.2 as a person alleged to have been subjected to sex discrimination; anyone who has a right to make a complaint on a complainant's behalf under proposed § 106.6(g); or the Title IX Coordinator to make a complaint of sex discrimination, including sex-based harassment. Under the proposed definition of “complainant” in § 106.2, a third-party complainant who wants to make a complaint of sex discrimination, including sex-based harassment, must be participating or attempting to participate in the recipient's education program or activity when the alleged sex discrimination occurred. For example, if a student enrolled in University A is taking a class at University B through an agreement between the universities and is subjected to sex-based harassment by a student enrolled in University B while attending class at University B, the student would be permitted to make a complaint of sex-based harassment through University B's grievance procedures because the student is a third party participating in University B's education program or activity when the sex-based harassment occurred. Or, for example, if a student who plays for School A's basketball team is subjected to sex-based harassment by a student enrolled in School B while at School B to play in a basketball game, the student would be permitted to make a complaint of sex-based harassment through School B's grievance procedures because the student is a third party participating in School B's education program or activity when the sex-based harassment
Proposed § 106.45(a)(2)(i) through (iii) would generally be consistent with the requirements under the current regulations regarding who can file a formal complaint of sexual harassment, with some minor revisions consistent with other proposed changes to the regulations. For additional information regarding these proposed changes see the discussion of the proposed definitions of “complaint” and “complainant” (§ 106.2).
Proposed § 106.45(a)(2)(i) through (iii) would allow a complainant, a person who has a right to make a complaint on behalf of a complainant under proposed § 106.6(g), and the Title IX Coordinator to make a complaint of sex-based harassment. Under proposed § 106.45(a)(2)(iv), however, the Department would limit the ability of non-complainants, including other students and employees, and third parties who are participating or attempting to participate in the recipient's education program or activity to make complaints of sex-based harassment, while allowing them to make complaints of sex discrimination other than sex-based harassment. The Department proposes this limitation because it recognizes that sex-based harassment complaints may involve allegations about deeply personal aspects of the complainant's life, and that a complainant should therefore have the opportunity to choose whether or not to request that the recipient initiate its grievance procedures, except in the limited circumstances in which a Title IX Coordinator would be obligated to initiate the recipient's grievance procedures if the complainant chose not to, as explained in the discussion of proposed § 106.44(f)(5). During the June 2021 Title IX Public Hearing, commenters requested that the Department provide flexibility to complainants to determine whether to participate in the recipient's grievance procedures given these considerations. The Department's proposed regulations recognize the importance of complainant autonomy and also the requirement under Title IX that a recipient operate an education program or activity free from sex discrimination, including sex-based harassment. Therefore, although the Department's proposal would limit who can make a complaint of sex-based harassment to the individuals identified in proposed § 106.45(a)(2)(i) through (iii), other individuals, including witnesses to sex-based harassment, may inform the Title IX Coordinator of any potential sex-based harassment. Upon receiving notification about conduct that may constitute sex-based harassment from someone other than the individuals identified in proposed § 106.45(a)(2)(i) through (iii), the recipient must require its Title IX Coordinator to take steps consistent with proposed § 106.44(f).
The Department recognizes that in some instances, particularly in situations in which systemic sex discrimination is being alleged, the person who may have information regarding the discrimination may not themselves be subjected to the sex discrimination at issue. For example, the boys' soccer coach may have information about disparities between boys' and girls' athletic facilities, including locker rooms, that the girls' soccer coach may not be able to access. Allowing the boys' soccer coach to make a complaint of sex discrimination brings this concern to the recipient's attention and serves the recipient's and Department's interest in ensuring a nondiscriminatory educational environment based on sex. The Department's proposed approach is informed by its interest in allowing students and employees to make a complaint about sex discrimination in the education program or activity to the recipient and in permitting the recipient to focus its resources on complaints made by persons who have a relationship with the recipient. The Department thus proposes to allow only those third parties who are participating or attempting to participate in a recipient's education program or activity at the time of the alleged discrimination to make a complaint. This proposed limitation on third parties is generally consistent with the Department's reasoning in the preamble to the 2020 amendments. 85 FR 30198 (explaining that the requirement that the complainant must be participating or attempting to participate in the recipient's education program or activity “prevents recipients from being legally obligated to investigate allegations made by complainants who have no relationship with the recipient”).
Although the Department continues to believe that a recipient must provide remedies to a complainant and follow grievance procedures that comply with the requirements in proposed § 106.45, and if applicable proposed § 106.46, before imposing disciplinary sanctions on a respondent, the Department proposes moving these requirements to different provisions rather than linking them to the requirement to treat complainants and respondents equitably. The purpose of this proposed change is to clarify that the requirement to treat complainants and respondents equitably is not limited to these two requirements. One factor for a recipient to consider in ensuring complainants and respondents are treated equitably is whether the parties, witnesses, and other participants can engage fully in the grievance procedures. In particular, to ensure equal opportunity for persons with disabilities, it may be necessary for a recipient to provide auxiliary aids and services for effective communication and make reasonable modifications to policies, practices, and procedures. In addition, it may be necessary for a recipient to provide language assistance services, such as translations or interpretation, for persons with limited English proficiency.
As further explained in the discussion of proposed § 106.8(d), the Department also proposes revising and moving training requirements from current § 106.45(b)(1)(iii) to a consolidated training provision at proposed § 106.8(d). The Department also proposes eliminating the categorical prohibition on the same person serving as both decisionmaker and Title IX Coordinator or investigator.
The Department proposes moving the requirement that the facilitator of the informal resolution process be free from bias and conflict of interest from current § 106.45(b)(1)(iii) to proposed § 106.44(k). The Department proposes this technical change to align with the relocation of the informal resolution process from § 106.45(b)(9) in the current regulations to § 106.44(k) in the proposed regulations.
The proposed regulations would continue to require the Title IX Coordinator, investigators, and decisionmakers to receive training; however, the Department proposes consolidating those training requirements in proposed § 106.8(d) rather than in the section on grievance procedures as the current regulations do.
Proposed § 106.45(b)(2) would also eliminate the prohibition on the decisionmaker being the same person as the Title IX Coordinator or investigator. Before the 2020 amendments, some recipients implemented a single-investigator model in which one person or one team both investigated a complaint and made findings of fact as to whether a respondent violated the recipient's prohibition on sexual harassment. This model, then in use by a variety of recipients across the country, was specifically prohibited under the 2020 amendments. In 2020, the Department said it was concerned that combining the investigative and adjudicative functions in a single entity raised an unnecessary risk of bias that unjustly impacts one or both parties in Title IX grievance procedures. 85 FR 30367-69. Specifically, the Department stated that placing these varied responsibilities in the hands of a single individual or team risks those involved improperly relying on information gleaned during one role to affect decisions made while performing a different role, and that separating the roles of investigation from adjudication protects the parties by making it more likely that the fact-based determination regarding responsibility is based on an objective evaluation of relevant evidence.
Through listening sessions and the June 2021 Title IX Public Hearing, OCR learned that the requirement that a recipient have separate staff members to handle investigation and adjudication is
In addition, OCR learned through the June 2021 Title IX Public Hearing that prior to the 2020 amendments, employing a single investigator from outside the recipient's community, under the guidance of the recipient's Title IX Coordinator, enabled some postsecondary institutions to have a highly trained expert who could conduct an equitable investigative process without perceived institutional bias. Some recipients also expressed their belief that, through this model, they saw more students seeking institutional support and resolution of complaints.
For small or under-resourced recipients, OCR also heard that permitting a single-investigator model would help ensure prompt and equitable grievance procedures while reducing the number of personnel a recipient would need for each investigation and resolution. If a recipient has a small school or campus community, a requirement that increases the number of employees involved in the grievance procedures also increases the likelihood of the parties having to interact with those employees in the regular course of their participation in the recipient's education program or activity. OCR heard about students who had changed majors or avoided courses, clubs and organizations, and athletic opportunities to avoid interacting with employees in those areas who had also administered their grievance procedures related to sexual harassment allegations. Stakeholders who provided these comments explained that some students had found the procedures painful, and some had concerns about those employees knowing traumatic information about them.
After reweighing the facts and circumstances, including but not limited to the feedback received through listening sessions and the June 2021 Title IX Public Hearing, it is the Department's current view that the single-investigator model, when implemented in conjunction with the other proposed measures designed to ensure equitable treatment of the parties as required throughout proposed § 106.45, and if applicable proposed § 106.46, can offer recipients an effective option for resolving complaints of sex discrimination in a way that ensures fair treatment of all parties and enables compliance with Title IX. In conducting an investigation and reaching a determination, the recipient's responsibility is to gather and review evidence with neutrality and without bias or favor toward any party. That is, the recipient is not in the role of prosecutor seeking to prove a violation of its policy. Rather, the recipient's role is to ensure that its education program or activity is free of unlawful sex discrimination, a role that does not create an inherent bias or conflict of interest in favor of one party or another. The Department's earlier stated concerns about the reliability of fact-finding and overall fairness and accuracy of the grievance procedures will still be effectively addressed by the other proposed requirements which clarify a recipient's obligations and make it easier to achieve those obligations, and these protections would now apply to all complaints of sex discrimination, not just those that allege sex-based harassment. Among other obligations, a recipient must: treat the complainant and respondent equitably (proposed §§ 106.44(f)(1), 106.45(b)(1)); provide robust training and anti-bias requirements (proposed §§ 106.8(d), 106.45(b)(2)); objectively evaluate all relevant evidence (proposed § 106.45(b)(6)); review all evidence gathered to determine which evidence is relevant and what is impermissible (proposed § 106.45(f)(3)); provide each party with a description of evidence that is relevant and not otherwise impermissible (proposed § 106.45(f)(4)); provide the right to appeal a complaint dismissal (proposed § 106.45(d)); and, if additional provisions are adopted as part of its grievance procedures, apply those provisions equally to the parties (proposed § 106.45(i)). These provisions would reinforce each other in protecting the overall fairness and accuracy of the grievance procedures.
In conducting an investigation and reaching a determination, the recipient's responsibility is to gather and review evidence with neutrality and without bias or favor toward any party. That is, the recipient is not in the role of prosecutor seeking to prove a violation of its policy. Rather, the recipient's role is to ensure that its education program or activity is free of unlawful sex discrimination, a role that does not create an inherent bias or conflict of interest in favor of one party or another.
The Department is aware that, prior to August 2020, some recipients used a single investigator or team of investigators to investigate complaints of sex-based harassment and make determinations whether sex-based harassment occurred. The Department invites comments on recipients' experiences using that model to comply with Title IX and the steps taken, if any, to ensure adequate, reliable, and impartial investigation and resolution of complaints, including equitable treatment of the parties and reliable grievance procedures that are free from bias. The Department also invites comments on these issues from persons who were parties or served as an advisor to a party to a complaint that was investigated and resolved by a recipient using a single investigator model.
To increase clarity, proposed § 106.45(b)(4) would require a recipient to establish timeframes for the major stages of the grievance procedures rather than only for the conclusion of the grievance process as in the current provision. Requiring a recipient to establish timeframes for the major stages of its grievance procedures would help parties understand the approximate length of each stage of the recipient's process, while the current provision requires only that a recipient alert parties to a timeframe for the completion of the overall process. Also, to assist recipients in understanding what a major stage is, the Department proposes providing examples in § 106.45(b)(4) such as evaluation (
The Department also proposes deleting the examples of good cause for extending the recipient's timeframe and adding a requirement to consider extensions on a case-by-case basis. After reviewing these examples, the Department is concerned that their inclusion in the regulations may have inadvertently suggested to recipients that extensions were mandatory in each of those situations—regardless of whether they were requested by the parties or whether extensions were warranted in the particular situation—which may have slowed down overall investigation and resolution of complaints. The Department continues to believe that good cause may include, for example, considerations such as the absence of a party, a party's advisor, or a witness, or a variety of other situations. In proposed § 106.45(b)(4), the Department would remove the examples from the regulatory text to help clarify that the need to extend timeframes must be considered on a case-by-case basis. Recipients may be able to address many of these circumstances in a way that can avoid the need for an extension. For example, a witness who is unavailable in person may nevertheless be available through videoconference. Likewise, a recipient may require a party to choose an advisor who has appropriate availability, or to select another advisor with sufficient availability if their current advisor's availability is very limited, to enable the grievance procedures to proceed promptly and equitably. With respect to the need for language assistance or reasonable modifications, the Department anticipates that a recipient should ordinarily be expected to address these needs within its established timeframes. For example, a recipient should be prepared to provide a sign language or foreign language interpreter from the outset if needed for a party or witness to participate in the grievance procedures. However, when the reasonable modification a party requests is itself an extension of time (for example, additional time for an individual with ADHD who requires additional time to review or respond to allegations), it may be appropriate for the recipient to extend time on this basis. In any event, a recipient should
In addition, the Department proposes revising § 106.45(b)(4) to state that a recipient must provide notice of an extension to the parties rather than to “the complainant and the respondent.” This change would make clear that in cases in which there are multiple complainants or respondents (for example, if several complaints are consolidated), a recipient must provide notice of extensions to all parties. The Department also proposes changing the term “grievance process” to the term “grievance procedures” to be consistent with language used throughout proposed §§ 106.44, 106.45, and 106.46, including the heading of this subpart.
First, the Department proposes revising the current regulations that prohibit a recipient from restricting in any way the parties' ability to discuss the allegations under investigation. Proposed § 106.45(b)(5) would instead require a recipient to take reasonable steps to protect privacy; however, proposed § 106.45(b)(5) would also continue to protect the parties' ability to discuss the allegations by imposing limitations on the types of reasonable steps that a recipient would be able to take to protect privacy. Under proposed § 106.45(b)(5), a recipient would not be permitted to restrict the parties' ability to obtain and present evidence, including by speaking to witnesses. Likewise, a recipient would not be permitted to restrict the parties' ability to speak with a family member, confidential resource, or advisor. A recipient would also not be permitted to take steps to protect privacy that would restrict the parties' ability to prepare for a hearing (if one is offered) or to otherwise defend their interests (
In the preamble to the 2020 amendments, the Department concluded that a recipient should not restrict the right of its students and employees to discuss the allegations under investigation. In reaching this conclusion, the Department highlighted the importance of allowing parties “to seek advice and support outside the recipient's provision of supportive measures,” and the “ability to discuss the allegation under investigation where the party intends to, for example, criticize the recipient's handling of the investigation or approach to Title IX generally.” 85 FR 30295. The Department determined that a fair grievance process required that “both parties have every opportunity to fully, meaningfully participate by locating evidence that furthers the party's interests and by confiding in others to receive emotional support and for other personally expressive purposes,” and that such benefits outweighed the risks of harm identified by stakeholders.
During the June 2021 Title IX Public Hearing, stakeholders expressed concerns regarding the Department's prohibition on any restrictions on the parties' ability to discuss the allegations and to gather relevant evidence, emphasizing that parties need protection from slander and social retaliation, that some students use social media to harass and shame the parties, and that the potential consequences of harassment based on students' participation in the recipient's Title IX process and related allegations are serious, including attempted suicide. One commenter expressed during the June 2021 Title IX Public Hearing that schools should not prohibit parties from discussing their cases with others since such discussions may be necessary for gathering evidence, but schools should stop that information from being used to retaliate. A group of stakeholders urged the Department through a listening session to permit reasonable limitations on the sharing of information to protect students and prevent the spread of sensitive information that would undermine fair proceedings, as long as these limitations do not prejudice the ability of the parties to collect evidence, speak to witnesses, consult with an advisor, or prepare for a hearing. These stakeholders asked the Department to make clear that it will not sanction schools that take reasonable steps to protect privacy or require parties to keep information confidential.
Upon considering the issue and reweighing the facts and circumstances, including views expressed by a wide array of stakeholders in listening sessions and in connection with the June 2021 Title IX Public Hearing, the Department proposes modifying the current regulations to better address these concerns. Through proposed § 106.45(b)(5), the Department would take account of both the parties' need to disclose information to certain individuals and the harms of overbroad disclosure. Proposed § 106.45(b)(5) would enable a recipient to take steps to prevent the harms repeatedly raised by stakeholders, while also respecting the Department's objectives as discussed in the preamble to the 2020 amendments.
Proposed § 106.45(b)(5) would protect the ability of the parties to gather evidence and to confide in others and would address concerns about the chilling effect on reporting and potential interference with the integrity of the grievance procedures associated with widespread information sharing. Under proposed § 106.45(b)(5), the Department would require a recipient to take reasonable steps to protect the privacy of the parties and witnesses during the pendency of the grievance procedures. In doing so, proposed § 106.45(b)(5) would fulfill the purpose of enabling a recipient to take steps that are responsive to its educational environment and its interest in preserving the fairness and integrity of its grievance procedures. Unrestricted disclosures of sensitive information could threaten the fairness of the
The proposed regulations would also include protections against witness intimidation and retaliatory disclosures of information as part of the general prohibition on retaliation under current and proposed § 106.71. Proposed § 106.45(b)(5) would also further protect against the harmful effects of improper disclosures by requiring a recipient to take proactive steps to protect privacy while the grievance procedures are ongoing. A party's intimidation of a witness or a party's improper disclosure of information to a witness could compromise the fairness of the grievance procedures. Whereas current and proposed § 106.71 would allow, as appropriate, subsequent disciplinary action for a party who engages in this type of retaliatory conduct, proposed § 106.45(b)(5) would focus on the preventive steps that a recipient would need to take as a means of safeguarding the fairness of the process and the reliability of the outcome. In addition, proposed § 106.45(b)(5) would not apply after the conclusion of the grievance procedures, yet the protections of current and proposed § 106.71 would remain in effect.
Proposed § 106.45(b)(5) would cabin the discretion that a recipient has in taking these reasonable steps to protect privacy, however, including by clarifying that any steps must not restrict the parties' ability to obtain and present evidence. Similarly, to ensure the fairness of the process, proposed § 106.45(b)(5) would prohibit the recipient from taking any steps to protect privacy that restrict the parties' ability to consult with an advisor, prepare for a hearing, or otherwise defend their interests consistent with current § 106.45(b)(5)(iv) and (6). In addition, consistent with the Department's previous acknowledgment that the grievance process is “challenging, difficult, and stressful to navigate,” 85 FR 30305, proposed § 106.45(b)(5) would protect the parties' ability to speak with family members or confidential resources about the process. Moreover, nothing in proposed § 106.45(b)(5) would prohibit a recipient from allowing the parties to consult with individuals beyond those listed in § 106.45(b)(5). Finally, proposed § 106.45(b)(5) would protect the parties' ability to speak with witnesses, subject to the requirement in proposed § 106.71 that a recipient prohibit intimidation, threats, coercion, or discrimination against any individual, including witnesses, for the purpose of interfering with any right under Title IX. A recipient's obligations under proposed § 106.71 are explained in more detail in the discussion of that proposed provision.
The Department reiterates that students, employees, and third parties retain their First Amendment rights, and the Department's proposed regulations would not infringe on these rights. The Department further notes that current § 106.6(d), to which the Department is not proposing any changes, states that nothing in the Title IX regulations “requires a recipient to . . . [r]estrict any rights that would otherwise be protected from government action by the First Amendment of the U.S. Constitution.” 34 CFR 106.6(d). Accordingly, when taking reasonable steps to protect the privacy of the parties and witnesses, a recipient must be mindful of the rights protected by the First Amendment, when relevant.
The current regulations also address in several different provisions certain types of evidence that cannot be used or are not relevant in the grievance procedures. Current § 106.45(b)(1)(x) prohibits the use of questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege unless that privilege has been waived by the person holding the privilege. In addition, current § 106.45(b)(5)(i) prohibits a recipient from accessing, considering, disclosing, or otherwise using a party's treatment records made or maintained by recognized professionals, paraprofessionals, or assistants to those professionals acting in those specified capacities unless the recipient obtains voluntary, written consent of that party for use in the recipient's grievance procedures as defined in current § 106.45. Further, current § 106.45(b)(6)(i) and (ii) state that “[q]uestions and evidence about the complainant's sexual predisposition or prior sexual behavior are not relevant” unless questions and evidence about the complainant's prior sexual behavior are offered to prove that someone other than the respondent committed the alleged conduct or to prove consent, if the questions and evidence pertain to specific incidents of the complainant's prior sexual behavior.
The requirement that evidence must be relevant and the prohibition on the use of three types of evidence (except as specified in proposed § 106.45(b)(7)) would apply to the grievance procedures under proposed § 106.45, and if applicable proposed § 106.46. Thus, the prohibitions on the use of evidence, and questions seeking that evidence, would apply to all recipients in all sex discrimination grievance procedures.
Under the first category in proposed § 106.45(b)(7)(i), a recipient could not access, consider, disclose, or otherwise use in its grievance procedures evidence that is protected under a privilege as recognized by Federal or State law (
Under the second category in proposed § 106.45(b)(7)(ii), a party's records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party must not be accessed, considered, disclosed, or otherwise used in the grievance procedures without that party's consent for the records to be used in the recipient's grievance procedures. Any consent must be voluntary and in writing. Current § 106.45(b)(5)(i) prohibits a recipient from accessing, considering, disclosing, or otherwise using these treatment records. The proposed regulations would move this prohibition to proposed § 106.45(b)(7)(ii).
Under the third category in proposed § 106.45(b)(7)(iii), evidence related to the complainant's prior sexual conduct must not be accessed, considered, disclosed, or otherwise used in a recipient's grievance procedures unless it is offered to prove that someone other than the respondent committed the alleged conduct or to prove consent with evidence concerning specific incidents of the complainant's prior sexual conduct with the respondent. The proposed regulations would clarify that the fact that prior consensual sexual conduct between the complainant and respondent has occurred does not demonstrate or imply the complainant's consent to the alleged sex-based harassment or preclude a determination that sex-based harassment occurred. The consideration of evidence related to the complainant's sexual interests would also be impermissible. Because the proposed regulations incorporate these prohibitions into proposed § 106.45(b)(7)(iii), the Department proposes removing descriptions of these same prohibitions from current § 106.45(b)(6)(i) and (ii), which address hearings and written questions. Instead, the Department proposes including cross-references to proposed § 106.45(b)(7) within proposed § 106.46(f), which would address credibility assessments and hearings.
Proposed § 106.45(b)(7) identifies three categories of evidence that a recipient must not access, consider, disclose, or otherwise use, or permit questions seeking, in a recipient's grievance procedures required by the proposed regulations regardless of whether evidence in these categories is relevant. The current regulations create similar protections against any use of this evidence but do so in several different provisions. The Department proposes moving these provisions to § 106.45(b)(7) for ease of reference and to make clear to recipients and others that these types of evidence would be excluded from the general requirement that the recipient conduct an objective evaluation of all relevant evidence. The Department is also proposing minor changes to the three categories of evidence that may not be used regardless of relevance.
Under the first category, the Department proposes prohibiting any use of evidence or questions seeking evidence that is protected under a privilege as recognized by Federal or State law. Current § 106.45(b)(1)(x) prohibits the use of questions or evidence protected under a legally recognized privilege unless that privilege has been waived by the person holding the privilege. The Department remains committed to protecting this information, and proposes moving this protection of privileged information to § 106.45(b)(7)(i), without changing the nature or scope of this protection. Current § 106.45(b)(1)(x) prohibits a recipient from using information protected by a legally recognized privilege without specifying the source(s) for this privilege. To avoid any confusion, the Department proposes clarifying that the source of that legally recognized privilege would be a privilege that arises under Federal or State law. In the proposed regulations, the Department would clarify that this evidence may be used in the recipient's grievance procedures only if the person holding the privilege has waived the privilege voluntarily and in a manner permitted in the recipient's jurisdiction. Consequently, the Department proposes removing current § 106.45(b)(1)(x), which prohibits the use of evidence or questions that seek evidence protected under a legally recognized privilege, as duplicative of proposed § 106.45(b)(7)(i).
Under the second category, the Department proposes prohibiting any use of, or questions seeking, a party's records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party absent the party's voluntary, written consent. The current regulations prohibit the use of these records at § 106.45(b)(5)(i). The Department proposes reaffirming the protection of treatment records by moving it to the list of impermissible types of evidence at § 106.45(b)(7)(ii).
The Department also proposes technical edits to this provision. Specifically, the Department proposes removing the term “psychiatrist” from the list of professions because a psychiatrist is covered by the term “physician.” The Department also proposes removing the phrase “requiring the professional or paraprofessional to be acting or assisting in the professional or paraprofessional's capacity” because this is covered by the requirement that the records be made in connection with the provision of treatment. The protection of treatment records under proposed § 106.45(b)(7)(ii) would encompass treatment records that are made and maintained by the recipient (such as when a physician is employed by the recipient), as well as treatment records that are made and maintained by external providers. Even when a party affirmatively provides treatment records to the recipient, proposed § 106.45(b)(7)(ii) would still require the recipient to obtain voluntary, written consent to use those records in the recipient's grievance procedures.
Current § 106.45(b)(5)(i) references the FERPA regulations, at 34 CFR 99.3, and requires the recipient to obtain consent of a parent related to the party's records for a party that is not an eligible student under those regulations. The FERPA regulations define an eligible student as “a student who has reached 18 years of age or is attending an institution of postsecondary education.” 34 CFR 99.3. The Department proposes removing this reference because the proposed regulations would make clear, in proposed § 106.6(g), that nothing in these regulations would limit the rights of a parent, guardian, or otherwise authorized legal representative to act on behalf of their child, including in a recipient's grievance procedures. When evaluating evidence that is relevant but may be impermissible, the Department expects recipients to be mindful of the rights of parents, guardians, and other authorized legal representatives under
Under the third category, the Department proposes clarifying in § 106.45(b)(7)(iii) that evidence, or questions seeking evidence, about the complainant's sexual interests and prior sexual conduct would be impermissible and a recipient must not rely upon such evidence regardless of relevance other than in either of two narrow exceptions: (1) when evidence of the complainant's prior sexual conduct is offered to prove that someone other than the respondent committed the alleged conduct; or (2) when evidence concerning specific incidents of the complainant's prior sexual conduct with the respondent is offered to prove consent. This provision is substantially similar to the corresponding prohibition in the current regulations, at § 106.45(b)(6)(i) and (ii), on questions and evidence about the complainant's sexual predisposition and prior sexual behavior. In the preamble to the 2020 amendments, the Department noted that these prohibitions “mirror[ ] rape shield protections applied in Federal courts,” 85 FR 30103, and that “rape shield protections serve a critically important purpose in a Title IX sexual harassment grievance process: Protecting complainants from being asked about or having evidence considered regarding sexual behavior, with two limited exceptions,”
In addition, the Department proposes adding language concerning the exception for specific incidents of prior sexual conduct between the complainant and the respondent to clarify the narrow scope of this exception. Proposed § 106.45(b)(7)(iii) would explain that although evidence concerning specific incidents of a complainant's prior sexual conduct with the respondent may be permissible when offered to prove consent, the mere fact that prior consensual sexual conduct between the complainant and respondent occurred or that there are similarities in the types of communications related to consent does not itself demonstrate or imply the complainant's consent to the alleged sex-based harassment and does not preclude a determination that sex-based harassment occurred.
The Department also proposes modifying two terms in § 106.45(b)(7)(iii), though the proposed provision would exclude the same universe of questions and evidence as the current provision. The Department proposes replacing references to the complainant's “prior sexual behavior” with “prior sexual conduct.” The Department tentatively views the term “prior sexual conduct” as more precise because the proposed regulations repeatedly use the term “conduct,” including within this provision to refer to an exception for evidence that would be offered to prove who engaged in the alleged conduct.
In addition, the Department proposes replacing the term “sexual predisposition” with the term “sexual interests.” In the preamble to the 2020 amendments, the Department stated that its “use of the phrase `sexual predisposition' is mirrored in Fed. R. Evid. 412.”
The Department proposes moving the protection just described from current § 106.45(b)(6)(i) and (ii) to proposed § 106.45(b)(7)(iii). In the current regulations, the prohibition on questions and evidence about the complainant's sexual predisposition and prior sexual behavior appears in the section about hearings but does not provide protection when the same evidence is presented in connection with an investigation. Instead, under the current regulations, when evidence related to a party's sexual predisposition or prior sexual behavior is directly related to the allegations, the Department stated that “the recipient should allow both parties an equal opportunity to inspect and review such evidence to be able to prepare to respond to it or object to its introduction in the investigative report or at the hearing.”
In addition, current § 106.45(b)(2) requires that the notice inform the parties that they may have an advisor of their choice, who may be an attorney, that they have a right to inspect and review certain evidence, and of any provision in the recipient's code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process. Current § 106.45(b)(2) also provides that if, in the course of an investigation, the recipient decides to investigate allegations about the complainant or respondent that are not included in the notice provided above, the recipient must provide notice of the additional allegations to the parties whose identities are known.
The current regulations do not include specific requirements for a written notice of allegations for complaints of sex discrimination other
Because the proposed regulations do not include a formal complaint requirement, the Department would clarify that the notice of allegations must be provided upon initiation of the recipient's grievance procedures as described in proposed § 106.45 and any informal resolution process under proposed § 106.44(k).
Proposed § 106.45(c) would preserve the current requirements that the recipient notify the parties of the applicable grievance procedures and provide sufficient information available at the time to allow the parties to respond to the allegations, including the identities of the parties involved in the incident, the conduct alleged to constitute sex discrimination under Title IX, and the date and location of the alleged incident, to the extent that information is available to the recipient. The Department proposes requiring the notice to also include a statement that retaliation is prohibited.
Proposed § 106.45(c) would preserve, with some additional clarification, the requirement in the current regulations that a recipient provide notice of additional allegations to the parties if, in the course of an investigation, the recipient decides to investigate additional allegations about the respondent, if applicable, that were not included in the initial notice.
The Department proposes giving recipients flexibility to provide the notice that would be required under proposed § 106.45(c) either orally or in writing.
For additional requirements regarding the application of this provision in grievance procedures for sex-based harassment complaints involving postsecondary students, see the discussion of proposed § 106.46(c).
The Department also proposes requiring a recipient to notify the parties that retaliation is prohibited in proposed § 106.45(c). This proposed change responds to comments OCR received in the June 2021 Title IX Public Hearing and in listening sessions that complainants sometimes experience retaliation after complaining of sex discrimination. Requiring a recipient to remind the parties early in the grievance procedures that retaliation for making a complaint or otherwise participating in the grievance procedures is prohibited would help prevent efforts to retaliate and would ensure that parties know to report it if it happens.
Proposed § 106.45(c) would preserve the requirement in current § 106.45(b)(2)(ii) that a recipient provide notice of additional allegations to the parties if, in the course of an investigation, the recipient decides to investigate additional allegations that were not included in the initial notice. This requirement is important for ensuring that parties have sufficient information about the allegations at issue with sufficient time as set out in the recipient's grievance procedures to identify or provide evidence relevant to those allegations. Consistent with the scope of the grievance procedures under proposed § 106.45, the Department proposes changing this requirement to cover any additional allegations of sex discrimination. The Department proposes a minor change to provide better guidance about the circumstances that would trigger this requirement. The proposed addition would specify that the additional allegations requiring notice are about: (1) the respondent's conduct toward the complainant, if applicable; or (2) conduct alleged in a new complaint that has been consolidated with the original complaint.
As further explained in the discussion of proposed § 106.46(c), the Department proposes requiring a more detailed and formal notice of allegations for complaints of sex-based harassment involving student parties at postsecondary institutions. The Department proposes that complaints of sex discrimination but not sex-based harassment involving postsecondary student parties be resolved under the more flexible and streamlined requirements of proposed § 106.45(c).
Proposed § 106.45(c) would not prescribe whether notice of the allegations must be in writing; a recipient would be able exercise its discretion regarding whether to provide the required notice in writing. In some cases, it may be important to provide written notice of the allegations, particularly in cases involving more serious conduct and more serious consequences. Written notice may also sometimes be required under State or local law or recipient policy where suspension or other serious disciplinary consequences may apply. In all cases, proposed § 106.8(f) would require the recipient to maintain records documenting its response to complaints of sex discrimination, including the notice of allegations. However, the Department does not propose to require notice of the allegations to be in writing in all cases because doing so may limit a recipient's ability to respond promptly and in an age- and developmentally appropriate way when a student complains of sex discrimination. For example, in the elementary school or secondary school context, a requirement that a recipient always provide written notice of allegations would limit a recipient's ability to respond to an incident when it occurs, even though such a prompt response can be a valuable teaching moment, particularly with younger students. And with respect to many sex discrimination complaints that do not allege sex-based harassment, there may be no respondent and therefore no need to provide notice of the allegations because the complainant will already have information about the alleged sex discrimination. In all cases, however, the proposed regulations would require the notice of the allegations to be clear so that a respondent and complainant both understand the alleged conduct the recipient intends to investigate. Clear notice affords each party the opportunity to present their account of what happened, including providing relevant evidence and witnesses in support of their account. When notice is
In addition, proposed § 106.45(c) would not include an express provision permitting a recipient to delay providing notice of the allegations to the parties in circumstances when the recipient has legitimate concerns for the safety of any person as a result of providing notice. The Department's current view is that it is not necessary to include an express provision authorizing a recipient to delay providing notice of the allegations in order to address safety concerns because “upon initiation of grievance procedures” in proposed § 106.45(c) should be understood to permit a recipient to delay notice to the parties in order to address safety concerns. Consistent with proposed § 106.46(c)(3), a recipient's legitimate safety concerns must be based on individualized safety and risk analysis and not on mere speculation or stereotypes.
Similarly, proposed § 106.45(c) would not require the notice of allegations to include specific statements that the respondent is presumed not responsible, that a determination regarding responsibility is made at the conclusion of the grievance process, that parties may have an advisor of their choice, that they can review evidence, or whether the recipient's code of conduct prohibits knowingly making false statements or knowingly submitting false information, though a recipient may include such statements in its notice of allegations if it determines that doing so is appropriate. As with the question of whether the notice of allegations should be reduced to writing, providing the parties notice of this information may be appropriate and helpful in some cases, particularly in cases involving more serious conduct and more serious consequences, but the Department's tentative view is that requiring it in all cases may prevent a recipient from responding promptly and appropriately to all forms of sex discrimination in the educational environment. As explained in more detail in the discussion of proposed § 106.46(c), a postsecondary institution would be required to communicate these points in writing when implementing grievance procedures for complaints of sex-based harassment involving postsecondary students in light of the unique circumstances of those students.
Current section 106.45(b)(3)(ii) permits a recipient to dismiss a formal complaint or any of the allegations raised in a formal complaint if at any time during the investigation or hearing, the complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the complaint or any of the allegations in the complaint, the respondent is no longer enrolled or employed by the recipient, or specific circumstances prevent the recipient from gathering sufficient evidence to make a determination on the complaint or any of the complaint allegations.
When a recipient dismisses a complaint for any of these reasons, current § 106.45(b)(3)(iii) requires the recipient to promptly and simultaneously send written notice of the dismissal and the reasons for it to the parties.
The Department proposes adding § 106.45(d)(1)(i) to provide that a recipient may dismiss a complaint when it is unable to identify the respondent after taking reasonable steps to do so. The Department also proposes changing current § 106.45(b)(3)(ii) to state in proposed § 106.45(d)(1)(ii) that a recipient may dismiss a complaint if the respondent is not participating in the recipient's education program or activity or not employed by the recipient, rather than allowing dismissal only if the respondent is no longer enrolled in the recipient's education program or activity or no longer employed by the recipient. The Department proposes maintaining, in proposed § 106.45(d)(1)(iii), the part of current § 106.45(b)(3)(ii) that permits a recipient to dismiss a complaint or complaint allegations when a complainant withdraws them. The Department proposes revising this provision by eliminating the requirement that the complainant notify the Title IX Coordinator in writing of the withdrawal (except in postsecondary complaints of sex-based harassment involving a student party, as explained in greater detail in the discussion of proposed § 106.46(d)). In addition, the Department would add proposed § 106.45(d)(1)(iv), which would permit but not require a recipient to dismiss a complaint of sex discrimination or some of its allegations when, after making reasonable efforts to clarify the allegations with the complainant, the recipient determines that the conduct alleged, even if proven, would not constitute sex discrimination under Title IX. The Department also proposes removing the requirement that a recipient dismiss a complaint when the conduct alleged did not occur in the recipient's education program or activity or against a person in the United States. In addition, the Department proposes removing language from current § 106.45(b)(3)(i) that a dismissal under that paragraph does not preclude action under another provision of the recipient's code of conduct. Finally, the Department proposes eliminating from current § 106.45(b)(3)(ii) the provision that permits a recipient to dismiss a complaint when “specific circumstances” prevent the recipient from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
The Department proposes clarifying in § 106.45(d)(2) that upon dismissal, a recipient must promptly notify the complainant of the dismissal and the reasons for it, and, if a respondent has already been notified of the allegations, then the recipient must also notify the respondent of the dismissal and the basis for the dismissal promptly following notification to the
The Department's current view is that a recipient should not be required to determine whether the conduct alleged meets the definition of sex discrimination at the outset of a complaint. Based on the feedback described, the Department recognizes that in most cases, it will not be clear whether alleged conduct could constitute sex discrimination under Title IX and, therefore, a recipient would be required to take additional steps to comply with its obligation under Title IX to have its education program or activity free from sex discrimination. In these cases, the proposed grievance procedures would guide the recipient's investigation and determination to ensure that both are prompt and equitable. The Department recognizes, however, that making such a determination may be appropriate in a limited set of circumstances, when it is clear from the allegations alone that the conduct alleged, even if proven, would not constitute sex discrimination under Title IX. In those cases, the Department's current view is that a recipient should have the discretion to dismiss the complaint and avoid conducting an unnecessary investigation.
Having reconsidered the issues in light of the facts and circumstances, including but not limited to stakeholder concerns, the Department proposes amending § 106.45(b)(3) to permit but not require a recipient to dismiss a complaint for any of the following reasons: (i) the recipient is unable to identify the respondent after taking reasonable steps to do so (proposed § 106.45(d)(1)(i)); (ii) the respondent is not participating in the recipient's education program or activity and is not employed by the recipient (proposed § 106.45(d)(1)(ii)); (iii) the complainant voluntarily withdraws any or all of the allegations in the complaint and the recipient determines that without the complainant's withdrawn allegations, the conduct that remains in the complaint, even if proven, would not constitute sex discrimination under Title IX (proposed § 106.45(d)(1)(iii)); and (iv) the recipient determines the conduct alleged in the complaint, even if proven, would not constitute sex discrimination under Title IX (proposed § 106.45(d)(1)(iv)).
The Department recognizes that for many sex discrimination complaints, there will not be a “respondent” as that term is understood in the context of sex-based harassment complaints; rather, the claim will be that the school's policies or practices deprived students of an equal educational opportunity based on sex in violation of Title IX. In such cases, a recipient would still be able to dismiss a complaint based on one of the two dismissal bases that are not tied to a particular respondent: proposed § 106.45(d)(1)(iii), when the complainant withdraws some or all of the allegations of the complaint and the remaining allegations, even if true, would not constitute sex discrimination under Title IX; and proposed § 106.45(d)(1)(iv), when the conduct alleged in the complaint, even if proven, would not constitute sex discrimination under Title IX.
Proposed § 106.45(d)(4) would further require a recipient that dismisses a complaint to comply with the requirements of proposed § 106.44(f) and (g) by, at a minimum: (1) offering supportive measures to the complainant as appropriate under proposed § 106.44(g); (2) offering supportive measures to the respondent as appropriate under proposed § 106.44(g) for dismissals under § 106.45(d)(1)(iii) or (iv) in which the respondent has been notified of the allegations; and (3) require its Title IX Coordinator to take other appropriate prompt and effective steps to ensure that sex discrimination related to any of the allegations or information contained in the complaint does not continue or recur within the recipient's education program or activity under proposed § 106.44(f). These steps are necessary because dismissal of a complaint of sex discrimination occurs before a recipient determines whether sex discrimination occurred. Therefore, although a recipient would not be required to comply with the requirements of its sex discrimination grievance procedures after dismissing a complaint, it would nevertheless be required to take steps to ensure that the complainant and respondent are offered supportive measures as appropriate and that its education program or activity operates free from sex discrimination.
Finally, the Department proposes deleting the statement that a dismissal under current § 106.45(b)(3)(i) does not preclude action under another provision of the recipient's code of conduct. The preamble to the 2020 amendments explained that this statement was
In deciding whether dismissal may be appropriate when the respondent is unknown, a recipient should consider whether there are good reasons to proceed with grievance procedures without a respondent. In some cases, the specific steps set out in proposed § 106.45 will not be effective without a respondent. Although proposed § 106.45(d)(1)(i) allows a recipient to dismiss a complaint for which a respondent cannot be identified, a recipient that chooses to do so must nevertheless comply with the requirements of proposed § 106.44(f) and (g) by offering supportive measures and requiring its Title IX Coordinator to take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur within the recipient's education program or activity (proposed § 106.45(d)(4)).
In cases in which a recipient identifies a respondent after dismissing a complaint, either while taking necessary steps under proposed § 106.44(f) to ensure equal access to its education program or activity or through other means, it would be permitted to reinstate a dismissed complaint and complete its grievance procedures at that time. A recipient would not need to reinstate its grievance procedures in every case. Factors a recipient may consider in deciding whether to reinstate its grievance procedures would include but are not limited to whether the complainant or the respondent still participates or is attempting to participate in the recipient's education program or activity, whether the alleged conduct has been addressed fully through the other steps taken under proposed § 106.44(f) and (g), and whether there is a risk of continued sex discrimination or a concern regarding safety of the broader community.
The current regulations permit dismissal when a respondent is no longer enrolled in or employed by the recipient. The proposed modification—changing the term “enrolled in” to the term “participating in”—would recognize that some student respondents may continue to participate in a recipient's education program or activity even though they are not enrolled and that their participation could affect the complainant's access to the recipient's education program or activity. Such continued participation could include serving in an alumni organization, as a volunteer, or attending school-related events. In addition, a student who is on an approved leave from a postsecondary institution typically plans to return to the campus community and thus remains part of, and therefore a participant in, the recipient's education program or activity, even if from a distance. A recipient would have the discretion to restrict such an individual's ability to continue participating in its education program or activity, either under proposed § 106.44(g) as a supportive measure to the extent necessary to restore or preserve the complainant's equal access to its education program or activity, or under proposed § 106.45, and if applicable proposed § 106.46, as a disciplinary action at the conclusion of its grievance procedures. Finally, proposed § 106.45(d)(1)(ii) would encompass complaints against a respondent who was never enrolled in or employed by a recipient, and permits dismissal of those complaints as well. As explained in the discussion of the proposed definition of a “respondent” (§ 106.2), a third party may be a respondent to a complaint of sex discrimination.
By proposing to permit a recipient to dismiss a complaint of sex discrimination because the respondent is not a student or an employee of the institution or is a former student or employee, the Department does not suggest that a recipient lacks an obligation under Title IX to address sex discrimination by such respondents. Rather, consistent with the Department's explanation in the preamble to the 2020 amendments, a recipient must respond to notice of sexual harassment in its education program or activity “regardless of whether the complainant or respondent is an enrolled student or an employee of the recipient.”
Dismissal of a Title IX complaint against a third-party respondent or a respondent who is a former student or former employee is nevertheless permitted when, for example, a recipient determines that its lack of control over the respondent or other factors would prevent it from completing its grievance procedures. In such cases, proposed § 106.45(d)(4)) would apply. Under the proposed regulations, the recipient would be required, at a minimum, to comply with the requirements of proposed § 106.44(f) and (g) by offering the complainant supportive measures and requiring its Title IX Coordinator to take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur within the recipient's education program or activity. In some cases, ensuring equal
In cases in which a complainant withdraws some or all of the allegations and informs the recipient that they do not want an investigation to proceed, the Department's current view is that a recipient should override a student's request that an investigation not proceed only in limited instances in which the recipient determines that the potential harm from ongoing sex discrimination outweighs the complainant's interest in not initiating the grievance procedures, including consideration of any potential harms the complainant identifies that may follow from initiation of the recipient's grievance procedures. This position is reflected in the preamble to the 2020 amendments, which noted that a Title IX Coordinator might initiate a grievance process when a complainant chooses not to file a formal complaint to prevent a respondent from continuing to engage in sexual harassment. 85 FR 30131. Consistent with OCR's longstanding position regarding when a recipient should override a complainant's request for confidentiality or not take action in response to a report of sexual harassment, the recipient must, prior to dismissing a complaint withdrawn by a complainant, determine whether it can honor such a request and still provide a safe and nondiscriminatory environment for all students.
In addition, the Department proposes including a safeguard in § 106.45(d)(1)(iii)—that the recipient may dismiss the complaint only if it determines that without the withdrawn allegations, the conduct alleged in the complaint would not constitute sex discrimination under Title IX if proven—to balance a complainant's request not to proceed with a complaint of sex discrimination against a recipient's obligation to ensure its education program or activity operates free from sex discrimination. In some cases, a complainant's withdrawal of allegations would leave no remaining allegations for a recipient to address through its grievance procedures. Dismissal would then be permitted under proposed § 106.45(d)(1)(iii). In other cases in which a complainant withdraws some or all of the allegations in a complaint, there may be remaining allegations that would independently constitute sex discrimination under Title IX. This might occur in a complaint that involves multiple complainants, allegations against several respondents, or alleged discrimination that occurred on more than one occasion. Before dismissing the complaint under proposed § 106.45(d)(1)(iii), the recipient must consider whether other factors, including its obligation to afford equal access to its education program or activity, warrant initiating grievance procedures. In making this determination, a recipient may consider the seriousness of the sex discrimination, whether circumstances suggest an increased risk of additional acts of sex discrimination by the respondent or others, and whether the recipient has other means to obtain relevant evidence to determine whether sex discrimination occurred. These considerations may similarly guide a Title IX Coordinator in determining whether to initiate sex discrimination grievance procedures in response to information about conduct that may constitute sex discrimination under Title IX but where there is no complaint or the complainant requests that the grievance procedures not be initiated, as explained in the discussion of proposed § 106.44(f)(5). Proposed § 106.45(d)(1)(iii) would leave to the discretion of the recipient to determine whether any alleged conduct that remains could, if proven, constitute sex discrimination under Title IX.
The Department proposes revising the regulations to ensure it is clear that a recipient has the discretion to dismiss allegations that, if proven, would establish that the alleged conduct was not based on sex or did not subject a person to sex discrimination in a recipient's education program or activity in the United States, as set out in proposed § 106.11. Proposed § 106.45(d)(1)(iv) would require a recipient to make reasonable efforts to clarify the allegations with the complainant prior to dismissal. In cases of sex-based harassment, this would require a recipient to clarify with the complainant, when relevant, whether the complainant is experiencing a hostile environment within the recipient's education program or activity in the United States stemming from conduct that occurred outside the education program or activity or outside the United States. Although a recipient has discretion under proposed § 106.45(d)(1)(iv) to distinguish between allegations that implicate Title IX and those that do not, the Department reiterates that a recipient must not exercise its discretion in a manner that predetermines witness credibility or the sufficiency of evidence nor would the recipient be permitted to dismiss complaints to avoid a complicated or contested investigation.
The Department's current view is that allowing a recipient to dismiss a complaint for undefined “specific circumstances” is unnecessary in light of other, specific dismissal provisions. The Department is also concerned that this undefined category is potentially so broad that it fails to provide adequate guidance to recipients about when it applies. To address the first example from the preamble to the 2020 amendments, the passage of time between alleged sex discrimination and when a complaint is made does not always mean a recipient will be unable to collect enough evidence to reach a determination. Under the proposed regulations, the “specific circumstances” provision would not be necessary because a recipient would have two other avenues for resolving complaints in this circumstance: (1) It would be able to dismiss the complaint under proposed § 106.45(d)(1)(iv) if the allegations in the complaint—once clarified with the complainant—could not constitute sex discrimination under Title IX; or (2) It could conduct an investigation, evaluate the available evidence it has been able to gather (if any) for its persuasiveness, and, if appropriate, determine that sex discrimination did not occur. As for the second example from the preamble to the 2020 amendments, if a complainant were to make a complaint with only specific allegations that the recipient had already investigated, the recipient could notify the complainant that the allegations have already been resolved and either (1) decline to open a new complaint, or (2) dismiss the complaint if it had been opened before the recipient realized that the allegations duplicate those previously investigated. Considering the discussion above, the Department's current view is that allowing specific circumstances to serve as a basis for dismissal without defining what constitutes specific circumstances does not adequately apprise a recipient of the circumstances that would permit dismissal and those circumstances—such as a complicated, resource intensive investigation—that would not. Rather than retain the term “specific circumstances” as a vague, catchall basis for dismissing complaints, the Department proposes eliminating that provision and revising § 106.45(b)(3) to include several defined bases for discretionary dismissal.
In addition, the Department proposes replacing references to “formal complaints” with “complaints,” and replacing references to “sexual harassment” with “sex discrimination” and “sex-based harassment,” as applicable. The Department proposes replacing the phrase “the other party” with “another party” to reflect that certain complaints might involve more than two parties. The Department also proposes removing the reference to the “grievance process.”
Consistent with current § 106.45(b)(4), proposed § 106.45(e) would state that when more than one complainant or more than one respondent is involved, references in this section and in proposed § 106.46 to the singular form of the terms “party,” “complainant,” or “respondent” include the plural, as applicable.
For example, if a person alleges that they were retaliated against for making a complaint of sex-based harassment or otherwise exercising their rights under Title IX related to sex-based harassment, the retaliation complaint may involve the same parties as a complaint related to the underlying sex-based harassment. Accordingly, when the sex-based harassment and related retaliation allegations arise out of the same facts or circumstances (and when the complaints are against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party), proposed § 106.45(e) would permit a recipient to consolidate these complaints.
Proposed § 106.45(e) would require that when one of the complaints to be consolidated is a complaint of sex-based harassment involving a student complainant or student respondent at a postsecondary institution, the recipient must comply with the requirements of proposed §§ 106.45 and 106.46 to investigate and resolve the consolidated complaint. Proposed § 106.71 likewise would require that when a complaint of retaliation is consolidated with a complaint of sex-based harassment involving a student at a postsecondary institution, the recipient must comply with the grievance procedures in proposed §§ 106.45 and § 106.46. As explained in the discussion of proposed § 106.46 (Section II.F.2.c), the Department's current view is that the additional provisions of proposed § 106.46 would address the specialized needs of postsecondary student complainants and respondents in complaints of sex-based harassment and, when applied together with the requirements in proposed § 106.45, would ensure equitable grievance procedures tailored to the circumstances of students attending postsecondary institutions. For this reason, when a consolidated complaint involves a complaint of sex-based harassment involving a student at a postsecondary institution, the Department proposes that the postsecondary institution would be required to comply with these additional requirements.
In addition to clarifying that consolidation is available for any complaint of sex discrimination, the Department proposes minimal changes to proposed § 106.45(e) to align with global changes in the proposed regulations.
First, the Department proposes replacing “formal complaints” with “complaints.” As explained in the discussion of the proposed definition of “complaint” (§ 106.2), the Department proposes removing the formal complaint requirement for purposes of initiating a recipient's obligation to follow its grievance procedures for complaints of sex discrimination as described in proposed §§ 106.45 and 106.46.
Second, the Department proposes replacing the term “sexual harassment” with the term “sex discrimination” or “sex-based harassment,” as applicable.
Third, the Department proposes to replace the phrase “the other party” with “another party” because complaints might involve more than two parties.
Finally, the Department proposes removing the reference to the “grievance process” because the proposed regulations instead use the term “grievance procedures” to refer to the procedures outlined in proposed §§ 106.45 and 106.46.
The Department proposes retaining the prohibition in current § 106.45(b)(5)(i) that a recipient may not access, consider, disclose, or otherwise use a party's treatment records, but would move this language to proposed § 106.45(b)(7) with technical edits.
Current § 106.45(b)(5)(i) prohibits a recipient from accessing, considering, disclosing, or using a party's treatment records, unless the party consents to their use. The Department proposes moving the full description of this prohibition, with minor proposed revisions, to proposed § 106.45(b)(7), where all three categories of impermissible evidence are described in full. As outlined by the Department in the discussion of proposed § 106.45(b)(7), the Department proposes consolidating this prohibition with other forms of impermissible evidence for ease of reference and to make clear to recipients and others that these types of evidence would be excluded from the general requirement that the recipient conduct an objective evaluation of all relevant evidence. The Department explains the proposed changes to the protection of treatment records in greater detail in the discussion of proposed § 106.45(b)(7).
The proposed relevance limitation on the opportunity to produce witnesses and other evidence is consistent with the numerous provisions in the current and proposed regulations that limit the evidence in the grievance procedures to evidence that is “relevant,” as defined in proposed § 106.2. The current regulations incorporate the concept of relevance into several provisions, specifically:
• § 106.45(b)(1)(ii) (objective evaluation of all relevant evidence);
• § 106.45(b)(1)(iii) (training on issues of relevance);
• § 106.45(b)(5)(iii) (no restriction on the ability of either party to gather and present relevant evidence);
• § 106.45(b)(5)(vii) (investigative report that fairly summarizes relevant evidence);
• § 106.45(b)(6)(i) (ability of the party's advisor to ask all relevant questions and follow-up questions, and only relevant cross-examination and other questions may be asked of a party or witness);
• § 106.45(b)(6)(ii) (opportunity to submit written, relevant questions to the other party); and
• § 106.45(b)(6)(i) and (ii) (decisionmaker must exclude oral or written questions that are not relevant and explain any decision to exclude a question as not relevant).
Similarly, in proposed §§ 106.45 and 106.46, relevance is discussed in:
• Section 106.45(b)(6) (objective evaluation of all relevant evidence);
• Section 106.45(f)(2) (equal opportunity for parties to present relevant fact witnesses and other evidence);
• Section 106.45(f)(3) (review of evidence gathered to determine relevance);
• Section 106.45(f)(4) (description of the relevant evidence);
• Section 106.45(h)(1) (requirement that the decisionmaker evaluate relevant evidence for persuasiveness);
• Section 106.46(c)(2)(iii) (notice of the opportunity to receive access to relevant evidence or to an investigative report that accurately summarizes this evidence);
• Section 106.46(e)(6) (provide either equitable access to the relevant evidence or to the same written investigative report that accurately summarizes this evidence);
• Section 106.46(f)(1)(i) (credibility determinations include allowing the decisionmaker to ask relevant questions and allowing each party to propose relevant questions);
• Section 106.46(f)(1)(ii) (ability of the party's advisor to ask all relevant questions);
• Section 106.46(f)(3) (decisionmaker must determine whether a proposed question is relevant and explain any decision to exclude a question as not relevant); and
• Section 106.46(h)(1)(iii) (written determination must contain an evaluation of relevant evidence).
The Department justified the requirement to provide an equal opportunity to present witnesses and evidence in the preamble to the 2020 amendments as “an important procedural right and protection for both parties” that “will improve the reliability and legitimacy of the outcomes recipients reach in Title IX sexual harassment grievance processes.” 85 FR 30293. In the preamble to the 2020 amendments, the Department described this provision as referring to relevant witnesses and evidence.
Under proposed § 106.45(f)(2), a recipient would be required to provide the parties with the opportunity to present fact witnesses and other relevant evidence. Separately, under proposed § 106.45(f)(3), the recipient then would be required to evaluate whether the evidence is relevant and not otherwise impermissible, consistent with proposed §§ 106.2 and 106.45(b)(7).
Although current § 106.45(b)(5)(ii) requires a recipient to provide an equal opportunity for the parties to present expert witnesses, the Department proposes moving this requirement to proposed § 106.46(e)(4) and limiting its application to complaints of sex-based harassment involving a student complainant or a student respondent at a postsecondary institution. A recipient investigating and resolving a complaint under proposed § 106.45 would retain the discretion to determine whether to allow the parties to present expert witnesses. In making this determination, a recipient would be required to comply with proposed § 106.45(b)(1) and (f). A recipient would need to apply the determination about whether to allow expert witnesses equally to the parties, as part of the requirement to provide for equitable procedures and for the adequate, reliable, and impartial investigation and resolution of complaints. As explained in greater detail in the discussion of proposed § 106.46(e)(4), the use of expert witnesses may introduce delays without adding a meaningful benefit to the recipient's investigation and resolution of the case.
The current regulations, at § 106.45(b)(1)(ii), state that a recipient's grievance process must “[r]equire an objective evaluation of all relevant evidence.” The proposed regulations would retain this requirement for the recipient's grievance procedures at § 106.45(b)(6). The Department proposes adding § 106.45(f)(3) to make clear that when investigating a complaint of sex discrimination and throughout the process set out in the § 106.45 grievance procedures, a recipient must determine which evidence gathered through the investigation is relevant and which is impermissible regardless of relevance, consistent with proposed §§ 106.2 and 106.45(b)(7).
Under proposed § 106.45(f)(4), the Department proposes requiring a recipient to, at minimum, provide the parties with a description of the relevant evidence as part of the investigation of all sex discrimination complaints. A recipient may provide this description orally or in writing. Proposed § 106.8(f)(1) would require a recipient to maintain records documenting the process that the recipient conducted under the grievance procedures under proposed § 106.45, and if applicable proposed § 106.46, for each complaint of sex discrimination. Accordingly, a recipient that provides the parties with an oral description of the evidence to comply with proposed § 106.45(f)(4) would need to maintain a written record of this description. Likewise, a recipient would need to maintain any written
In addition, under proposed § 106.45(f)(4), the Department proposes requiring a recipient to provide the parties with a reasonable opportunity to respond to the description of the evidence as part of the investigation of the complaint.
For complaints of sex-based harassment involving a student complainant or student respondent at a postsecondary institution, the postsecondary institution would be required to comply with both proposed §§ 106.45(f)(4) and 106.46(e)(6). As explained in the discussion of proposed § 106.46(e)(6), a postsecondary institution would be required to provide the parties with equitable access to the relevant and not otherwise impermissible evidence, or to a written investigative report that accurately summarizes this evidence. As stated in proposed § 106.46(e)(6)(iv), compliance with the requirements of proposed § 106.46(e)(6) would also satisfy the requirements of proposed § 106.45(f)(4).
In the preamble to the 2020 amendments, the Department stated that the purpose of current § 106.45(b)(5)(vi) is to enable the parties to “meaningfully prepare arguments based on the evidence that further each party's view of the case, or present additional relevant facts and witnesses that the decision-maker should objectively evaluate before reaching a determination regarding responsibility, including the right to contest the relevance of evidence.” 85 FR 30303. The proposed regulations would likewise provide the parties with sufficient information about the relevant evidence to meaningfully prepare arguments, contest the relevance of evidence, and present additional evidence for consideration but would also enable recipients to more effectively fulfill their obligations under Title IX by allowing them to tailor the manner in which they present the relevant, permissible evidence in light of the ages of the parties, severity of the alleged conduct, volume of evidence, other case-specific factors, and factors specific to the recipient's educational environment.
Numerous stakeholders, in listening sessions and the June 2021 Title IX Public Hearing, urged the Department to provide greater discretion for elementary school and secondary school recipients. Many stakeholders commented that they have found the current regulations to be onerous, protracted, and unworkable in practice for elementary school and secondary school recipients. It is the Department's tentative view that proposed § 106.45(f)(4) would streamline the investigation process while ensuring that parties receive a description of the relevant evidence so that they can have a meaningful opportunity to be heard in response to the evidence under consideration by the recipient. The Department observes that in
Under proposed § 106.45(i), a recipient may adopt additional provisions as part of its grievance procedures as long as they are applied equally to the parties. Accordingly, a recipient that would not be required by proposed § 106.46(e)(6) to provide access to the relevant evidence or to an investigative report would nevertheless have the discretion to do so.
In view of this, proposed § 106.45(g) would require a recipient to have a process in place to assess the credibility of the parties and witnesses, to the extent credibility is in dispute and relevant to evaluating one or more allegations of sex discrimination. A recipient would have the ability to structure this process in a way that is consistent with its obligation to have an equitable process for all parties and takes into account the recipient's administrative structure, education community, and any applicable State or local legal requirements. The Department notes the specific requirements for assessing credibility in proposed § 106.46(f) related to questioning by the decisionmaker or cross-examination are limited to complaints of sex-based harassment involving student complainants or student respondents at postsecondary institutions and would not apply under proposed § 106.45(g). However, and consistent with the discussion of proposed § 106.46(g), if as a part of its process for assessing credibility under proposed § 106.45(g), a recipient elects to include any of these additional provisions, including conducting a live hearing with both parties present, the Department's current view is that the recipient's grievance procedures would not be equitable if either party requested to participate in the live hearing in a separate room and the recipient denied the request. For additional discussion of the distinction between provisions under proposed §§ 106.45 and 106.46, see the discussion of the Framework for Grievance Procedures for Complaints of Sex Discrimination (Section II.F). Under proposed § 106.45(g) a recipient would be permitted to incorporate the methods for assessing credibility that would be required under proposed § 106.46(f) or may choose to incorporate other methods that the recipient believes are better suited to the nature of the allegations and the recipient's educational environment as long as they aid in fulfilling the recipient's obligation to provide an education program or activity free from sex discrimination. In situations in which
This provision also states that the Title IX Coordinator is responsible for the effective implementation of any remedies, and that the determination regarding responsibility becomes final either on the date that the recipient provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.
Proposed § 106.45(h)(1) would require a recipient to use the preponderance of the evidence standard of proof to determine whether sex discrimination occurred, unless the recipient uses the clear and convincing evidence standard of proof in all other comparable proceedings, including proceedings relating to other discrimination complaints. In those situations, proposed § 106.45(h)(1) would allow the recipient to elect to use the clear and convincing evidence standard of proof in determining whether sex discrimination occurred. Proposed § 106.45(h)(2) would require that a recipient notify the parties of the outcome of the complaint, including the determination of whether sex discrimination occurred, and the procedures and permissible bases for the complainant and respondent to appeal, if applicable. Proposed § 106.45(h)(3) would require that, if there is a determination that sex discrimination occurred, the recipient must, as appropriate, require the Title IX Coordinator to provide and implement remedies to a complainant or other person the recipient identifies as having their equal access to the recipient's education program or activity limited or denied by sex discrimination, and require the Title IX Coordinator to take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur within the recipient's education program or activity. Proposed § 106.45(h)(4) would preserve the requirement that the recipient must comply with this section, and if applicable § 106.46, before the imposition of any disciplinary sanctions against a respondent. Proposed § 106.45(h)(5) would prohibit a recipient from disciplining a party, witness, or others participating in the recipient's grievance procedures for making a false statement or for engaging in consensual sexual conduct based solely on the recipient's determination of whether sex discrimination occurred.
When the Department promulgated the 2020 amendments and declined to mandate either the preponderance of the evidence standard or the clear and convincing evidence standard, the Department explained that “either standard of evidence, in combination with the rights and protections required under § 106.45, creates a consistent, fair process under which recipients can reach accurate determinations regarding responsibility.” 85 FR 30381. The Department further explained that “it [was] not aware of a Federal appellate court holding that the clear and convincing evidence standard is required to satisfy constitutional due process or fundamental fairness in Title IX proceedings, and the Department [was] not aware of a Federal appellate court holding that the preponderance of the evidence standard is required under Title IX.”
Under the preponderance of the evidence standard of proof, a determination that sex discrimination occurred can be made only if the decisionmaker finds it is more likely than not that a respondent engaged in sex discrimination. A respondent would not be found responsible for sex discrimination if the evidence were in equipoise, meaning evenly balanced for and against a determination of responsibility. In such a case, there would not be sufficient evidence for the decisionmaker to find it more likely than not that sex discrimination occurred. The Department notes that several Federal courts, including appellate courts, have held that the preponderance of the evidence standard is constitutionally sound and sufficient to ensure due process to a respondent when a school evaluates allegations of sexual harassment.
Other courts have refused to dismiss cases challenging the preponderance of the evidence standard or indicated that without other procedural safeguards, use of the preponderance of the evidence standard could violate due process.
The preponderance of the evidence standard is commonly used in civil litigation, including in cases involving alleged discrimination in violation of civil rights laws, and the Supreme Court has applied a preponderance of the evidence standard in litigation involving discrimination under Title VII.
The Department acknowledges that in the civil litigation context, there are procedural safeguards, such as discovery, that help to ensure a fair process. In the preamble to the 2020 amendments, the Department noted that “civil litigation generally uses the preponderance of the evidence standard” and that Title IX grievance procedures “are analogous to civil litigation in some ways,” but the Department also stated that the Title IX grievance procedures as prescribed under the 2020 amendments “do not have the same set of procedures available in civil litigation.” 85 FR 30381. Although the procedures may not be the same, it is the Department's current view that the proposed regulations include a number of key safeguards to ensure that a recipient's grievance procedures provide a fair process for all involved. For example, under the proposed regulations, at both elementary schools and secondary schools as well as at postsecondary institutions, a recipient's grievance procedures would have to, among other things:
• Treat complainants and respondents equitably;
• Prohibit the Title IX Coordinator, the investigator, and the decisionmaker from having a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent;
• Provide the recipient the discretion to dismiss a complaint in four different circumstances, including when the allegations, even if true, would not constitute sex discrimination under Title IX;
• Require notice to the parties of the allegations;
• State that the grievance procedures must be followed before determining whether sex discrimination occurred and before the imposition of any disciplinary sanctions against a respondent and that such sanctions may be imposed only if it is determined that the respondent violated the recipient's prohibition on sex discrimination;
• Require an objective evaluation of all relevant evidence and exclude certain types of evidence as impermissible;
• Place the burden on the recipient to conduct an investigation that gathers sufficient evidence to reach a determination;
• Provide an equal opportunity for the parties to present relevant fact witnesses and other inculpatory and exculpatory evidence;
• Provide each party with a description of the relevant and not otherwise impermissible evidence and a reasonable opportunity to respond to that evidence;
• Require the decisionmaker to adequately assess the credibility of the parties and witnesses to the extent credibility is in dispute and relevant to the allegations; and
• Include the right of appeal in complaint dismissals, and on certain bases for students in postsecondary institutions in cases of sex-based harassment.
Under the proposed regulations, a recipient would be permitted to adopt additional provisions as part of its grievance procedures, as long as such provisions are applied equally to the parties. Proposed § 106.45(i).
The Department's current view is that these procedural safeguards together would establish a strong framework for a fair process for all. It is also the Department's current view that the preponderance of the evidence is the standard of proof for complaints of sex discrimination that would best promote compliance with Title IX because it ensures that when a decisionmaker determines, based on evidence, that it is more likely than not that sex discrimination occurred in its program or activity, the recipient can take sufficient steps to deter the respondent from engaging in similar conduct and prevent future such violations. Use of a preponderance standard also equally balances the interests of the parties in the outcome of the proceedings by giving equal weight to the evidence of each party, and it begins proceedings without favoring the version of facts presented by either side.
In addition, the Department notes that, according to recent research, preponderance of the evidence is the standard of proof already commonly used by postsecondary institutions for evaluating evidence regarding all student conduct allegations, including sex-based harassment.
Nevertheless, the Department recognizes that a relatively small number of recipients currently apply the clear and convincing evidence standard of proof to code of conduct violations, either for the code as a whole or for a subset of alleged violations of the code. Under the clear and convincing evidence standard of proof, a decisionmaker would be required to find, based on evidence it has gathered consistent with its grievance procedures, that it is highly probable that allegations of sex-based harassment or other sex discrimination are true before determining that sex discrimination occurred. This is a higher standard than proof by a preponderance of the evidence, but it would not require proof beyond a reasonable doubt, as is required in a criminal proceeding. The Department understands that these recipients have determined that the clear and convincing evidence standard advances certain other important institutional interests in a broad array of disciplinary cases, not limited to those involving sex discrimination. For some of these recipients, the use of a clear and convincing evidence standard, like the use of a preponderance standard, may reflect certain values of their educational community related to student discipline generally. For others, there may be historical or other factors that have guided their choice of standard of proof. The Department also notes that if a recipient uses a clear and convincing standard to evaluate evidence of other potential student conduct violations, a requirement that a recipient maintain a lower standard of proof for evaluating sex discrimination allegations may in some circumstances give rise to confusion, perceptions of unfairness, and resentment.
The Department notes that the American Law Institute (ALI) membership, at its May 2022 Annual Meeting, approved the following principle as part of its project on procedural frameworks for resolving campus sexual misconduct cases in postsecondary institutions:
§ 6.8. Standard of Proof
Colleges and universities should adopt the same standard of proof for resolving disciplinary claims of sexual misconduct by students as they use in resolving other comparably serious disciplinary complaints against students. Standards that require proof either by a “preponderance of the evidence” or by “clear and convincing evidence” can satisfy the requirements of procedural due process and fair treatment. Whatever standard of proof is adopted, decisions that the standard of proof is met should always rest on a sound evidentiary basis.
American Law Institute,
The Department's current view is that the “beyond a reasonable doubt” standard from criminal law is never appropriate for evaluating evidence in a recipient's grievance procedures under Title IX. This position is consistent with the 2020 amendments, which do not permit application of the “beyond a reasonable doubt” standard in Title IX grievance proceedings.
Specifically, in light of recipients' substantially similar legal obligations under Federal laws that prohibit various types of discrimination, the Department believes it is appropriate to require a recipient to use a standard of proof for allegations of sex discrimination that is not higher than the standard of proof for allegations of other forms of discriminatory conduct that the recipient must address consistent with its obligations under Federal law. This means that a recipient that uses a preponderance of the evidence standard for evaluating allegations of harassment or other discrimination based on race, color, national origin disability, or age, for example, must use that standard for evaluating allegations of sex discrimination. Similarly, a recipient that uses a clear and convincing evidence standard for evaluating allegations of other forms of discrimination may choose to use that standard for evaluating alleged sex discrimination as well. Otherwise, a singular imposition of a higher standard on sex discrimination complaints would impermissibly discriminate based on sex.
During the June 2021 Title IX Public Hearing and in listening sessions, OCR heard from stakeholders that requiring recipients to use the same standard of proof for complaints against students and employees hampered the recipients' flexibility to choose a standard that is responsive to the many differences in a recipient's interactions with and obligations to its students and its employees. After reevaluating the issue and taking into account factors relevant to a recipient's distinct, even if interrelated, functions and obligations as an educator and as an employer, the Department proposes removing the requirement for recipients to use the same standard of proof for sexual harassment complaints against students and employees. As discussed in the preamble to the 2020 amendments, recipients may have collective bargaining agreements or State laws mandating certain standards of proof for evaluating employee conduct allegations and may want to select a different standard of proof for student conduct allegations or may have State laws requiring them to use a different standard of proof for students.
For example, if a recipient is bound by a collective bargaining agreement to use the clear and convincing evidence standard for allegations that an employee engaged in race discrimination, as well as all other comparable allegations, it could elect to use the same standard for sex discrimination allegations against an employee. If the same recipient uses a clear and convincing evidence standard for allegations of race discrimination and other comparable offenses against a student, it could choose to use the clear and convincing evidence standard for allegations of student sex discrimination. However, if that recipient uses a preponderance of the evidence standard for allegations that a student engaged in race discrimination, it would have to use the preponderance of the evidence standard for allegations of student sex discrimination. The Department notes that it applies the preponderance of the evidence standard to evaluate allegations of discrimination under all of the laws it enforces and that it does so for the equity-related reasons explained in the discussion of its benefits.
In light of this discussion, the Department invites the public to comment on proposed § 106.45(h)(1). In particular, to the extent commenters take the position that the clear and convincing standard would be appropriate when used in all other comparable proceedings, the Department invites comments on steps that recipients implementing that standard have taken to ensure equitable treatment between the parties. The Department also invites comments on whether it is appropriate to allow a recipient to use a different standard of proof in employee-on-employee sex discrimination complaints, than it uses in sex discrimination complaints involving a student. Finally, the Department invites comments on whether it would be appropriate to mandate the use of only one standard of proof for sex discrimination complaints.
The Department also takes the tentative position that the provisions in proposed § 106.46, which contain requirements related to written communications with the parties, may not be necessary to ensure an equitable process for other types of sex discrimination complaints, and could have the unintended consequence of impeding effective enforcement of Title IX by delaying a recipient's prompt response to other forms of possible sex discrimination. The Department recognizes the requirements in current § 106.45 (many of which appear in proposed § 106.46) were applied in the 2020 amendments only to sexual harassment complaints, which may require greater participation by a complainant and respondent than other complaints of sex discrimination. With regard to the written determination requirement, the Department stated in the preamble to the 2020 amendments that requiring a written determination in sexual harassment complaints served the important function of ensuring the parties know the reasons for the outcome of the grievance procedure and help ensure independent judgment and decisionmaking free from bias.
It is the Department's current view that the requirement of proposed § 106.45(h)(2) that the recipient notify the parties of the outcome of the complaint is sufficient to fulfill Title IX's nondiscrimination requirement, coupled with the requirement that a recipient maintain a record of the outcome, as explained in greater detail in the discussion of proposed § 106.8(f)(1). Previously, the Department asserted that the burden created by the current written determination requirement was outweighed by the benefits of a reliable, consistent, transparent process for students in elementary and secondary schools, as well as students at postsecondary institutions, irrespective of the size of the institution's student body.
It is the Department's tentative view that transparency and consistency would be achieved with the other proposed changes to the regulations, and that the burden of requiring all recipients to provide a written determination for all types of complaints may actually impede effective fulfillment of Title IX's nondiscrimination guarantee and should therefore not be required here. The Department also notes additional requirements in proposed § 106.45 that would ensure transparency and consistency in a recipient's grievance procedures, including requirements of notice of the allegations to the parties (proposed § 106.45(c)); equitable treatment of complainants and respondents (proposed § 106.45(b)(1)); prohibition on conflict of interest or bias for or against complainants or respondents (proposed § 106.45(b)(2)); presumption of non-responsibility (proposed § 106.45(b)(3)); objective evaluation of all relevant, and not otherwise impermissible, evidence (proposed § 106.45(b)(6) and (7)); allowing the parties an equal opportunity to present relevant witnesses and other inculpatory and exculpatory evidence (proposed § 106.45(f)(2)); providing each party with a description of the evidence that is relevant and not otherwise impermissible (proposed § 106.45(f)(4)); requiring adherence to these grievance procedures before imposition of any disciplinary sanctions (proposed § 106.45(h)(4)); and the right to appeal complaint dismissals (proposed § 106.45(d)(3)). In light of these protections, which together create the framework for an equitable process, the Department's current view is that a requirement of written communication of the outcome in all cases is not necessary to ensure effective implementation of Title IX. The Department recognizes that some recipients may determine that, for their educational environment, providing outcome determinations in writing for some or all types of complaints will be appropriate, particularly when students have the skills and maturity to understand the recipient's written communication or where such communications may be useful in providing outcome information to parents, guardians, or legally authorized representatives of students in elementary school or secondary school.
In addition, the Department recognizes that some recipients may provide detailed information to parties regarding the facts determined through an investigation while others may state only whether sex discrimination occurred under Title IX. Proposed § 106.45(h)(2) provides a recipient with flexibility to choose what information to share while setting a baseline requirement that recipients inform any parties of the outcome of the investigation and a determination as to whether sex discrimination occurred under Title IX. The purpose of this proposed change is to ensure consistency so that all parties to sex discrimination complaints, rather than only those involved in sex-based harassment complaints, receive information about the outcome and
Proposed § 106.45(h)(2) would also require a recipient to notify the parties of the procedures and permissible bases of appeal, if applicable. The proposed regulations would not require a recipient to provide a right to appeal, other than for complaint dismissals or in grievance procedures for a complaint of sex-based harassment involving a student at a postsecondary institution, but would require that information about appeals be provided, if any are available. It is the Department's current view that, for complaints of sex discrimination, other than complaint dismissals or complaints of sex-based harassment involving a student at a postsecondary institution, a recipient should have the discretion to decide whether a right to appeal a determination would be appropriate for a given type of complaint. For example, in some elementary school and secondary school settings involving complaints related to less serious conduct, the delay associated with an appeal could impair a recipient's ability to manage the school environment while sex-based harassment may be ongoing. In addition, a recipient's relationships with its employees vary significantly, ranging from temporary and at-will employees to those who are tenured. A right to an appeal may not be necessary or appropriate in all instances for a recipient to resolve, promptly and equitably, as required by Title IX, every complaint of employee-on-employee sex-based harassment. The same is true for complaints involving third parties. Further, with respect to employees, as explained in the discussion of the Overall Considerations and Framework (Section II.F.2.a), the Department recognizes that recipients have Federal law obligations to employees under Title VII as well as Title IX, and may also have obligations under other State or local laws, which may require processes that are specifically adapted to these types of complaints, and may or may not include a right to appeal.
The Department notes that, whatever a recipient decides, it must not be arbitrary in the exercise of its discretion to offer a right to appeal. That is, a recipient must treat similar complaints similarly, consistent with its obligations under Title IX and other applicable Federal nondiscrimination laws. If a recipient offers appeals, proposed §§ 106.45(d) and 106.46(i) would provide guidelines for how to provide those appeals. In particular, as explained in the discussion of proposed § 106.45(d)(3), any decisionmaker for an appeal must be trained on how to serve impartially, avoiding bias, conflicts of interest, and prejudgment of the facts.
The Department proposes changing the word “person” in current § 106.71(b)(2) to the phrase “parties, witnesses, or other participants” to make clear that this provision protects any form of participation in the recipient's grievance procedures under proposed § 106.45, and if applicable proposed § 106.46. In light of the Department's concern about chilling participation in these grievance procedures, the Department believes that providing protection for all participants would best ensures a thorough and equitable process.
The Department also notes that these prohibitions would apply regardless of whether the recipient intended use the disciplinary process to retaliate against a person. If a recipient were to engage in this type of discipline for the purpose of retaliating against a party, witness, or other participant in its grievance procedures, it would be in violation of both proposed §§ 106.45(h)(5) and 106.71(a).
In the preamble to the 2020 amendments, the Department explained that it added current § 106.71(b)(2) in response to comments stating that “lying should not be protected and that any retaliation provision should explicitly exclude from protection those who make false allegations or false statements during a grievance process.” 85 FR 30537. During the June 2021 Title IX Public Hearing and in listening sessions with stakeholders, OCR received feedback expressing confusion generated by the wording of current § 106.71(b)(2). Stakeholders requested that the Department clarify that it would be retaliatory to discipline a student for making a false report of sex discrimination solely because the recipient found in favor of the respondent.
The Department acknowledges that the wording of this prohibition in current § 106.71(b)(2) as an exception to a general rule permitting discipline for false statements might have caused confusion. The Department is also concerned that current § 106.71(a) may have a chilling effect on a person's participation in a recipient's grievance procedures for fear of being disciplined. As a result, the Department proposes replacing the current provision with proposed § 106.45(h)(5), which would make clear that the recipient must not initiate its disciplinary process against a person for making a false statement based solely on a determination in the recipient's grievance procedures that sex discrimination did not occur including, for example, when the recipient found the person's statements were not supported by the evidence.
The Department also proposes removing the term “materially” from current § 106.71(b)(2) and referring simply to “false” statements. The Department now believes that allowing a recipient to discipline a person for making any false statement based solely on its determination in the underlying complaint of sex discrimination could chill participation in the grievance procedures. This proposed change would not only address concerns about adequate protection for those participating in the recipient's grievance procedures but also would maintain the recipient's discretion to discipline those who make false statements based on evidence other than the outcome of its grievance procedures.
The Department received comments as part of the June 2021 Title IX Public Hearing requesting a broader prohibition on discipline for collateral conduct violations such as consensual sexual conduct to ensure that the regulations address a broader range of situations in which a complainant may fear that discipline for disclosing information about sexual conduct in a sex-based harassment grievance procedure. In addition, the Department notes that this concern regarding discipline for consensual sexual conduct has been raised by plaintiffs in Title IX litigation as well as in OCR's enforcement practice.
The Department proposes responding to the concerns raised by stakeholders by including in proposed § 106.45(h)(5) a prohibition on disciplining a party, witness, or other participant for engaging in consensual sexual conduct when the recipient's only basis for the discipline is a determination that sex discrimination did not occur. The Department would refer specifically to
The Department maintains its position, as stated in the preamble to the 2020 amendments, that under Title IX, “recipients [have] discretion to adopt rules and practices not required under § 106.45.” 85 FR 30209. The Department also continues to hold the view that Title IX requires that any “grievance [procedure] rules a recipient chooses to adopt (that are not already required under § 106.45) must treat the parties equally.”
The Department similarly affirms that under its proposed regulations, a recipient would be required to apply this provision to its handling of each sex discrimination complaint and that a recipient's equal treatment obligation would not necessarily require identical treatment of the parties to a complaint of sex discrimination. As the Department explained in the preamble to the 2020 amendments, “[w]here parties are given `equal' opportunity, for example, both parties must be treated the same,” but this does not mean that they must be given the exact same practice or accommodation.
Likewise, consistent with the principle that equal treatment does not require identical treatment, a recipient's grievance procedures may recognize that employee parties may have distinct rights in a collective bargaining agreement with the recipient or by other means that are not applicable to parties who are not employees. This is recognized in current § 106.6(f), which states that “[n]othing in this part may be read in derogation of any individual's rights under title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e
In proposed § 106.45(k)(2), the Department would also require a recipient's grievance procedures to either describe the range of possible disciplinary sanctions and remedies or list the possible disciplinary sanctions and remedies that a recipient may impose after it determines that sex-based harassment occurred.
The Department proposes clarifying that the phrase “any determination of responsibility” for which sanctions and remedies must be described or listed—as appears in current § 106.45(b)(1)(vi)—refers to a determination that sex-based harassment occurred. The Department also proposes removing one of the two references to possible disciplinary sanctions and remedies from this provision. As with the range of supportive measures, the Department proposes maintaining the requirement in the current regulations that a description of the range, or list, of possible disciplinary sanctions and remedies that a recipient may impose is necessary only with respect to complaints alleging sex-based harassment. Although the proposed definitions of “disciplinary sanctions” and “remedies” in proposed § 106.2 provides that disciplinary sanctions and remedies are available following a determination that sex discrimination occurred, proposed § 106.45(k)(2) would require a recipient to describe the range, or list, of possible disciplinary sanctions and remedies only for grievance procedures addressing a complaint alleging sex-based harassment.
In addition, the Department proposes removing one of the references to “possible disciplinary sanctions and remedies” as a non-substantive edit to streamline the provision and avoid unnecessary duplication of this phrase in the current regulatory text.
Although proposed § 106.44(g) and the proposed definitions of “disciplinary sanctions” and “remedies” in proposed § 106.2 provide that supportive measures, disciplinary sanctions, and remedies may be utilized in response to any form of sex discrimination, not just sex-based harassment, the Department's current view is that the requirement to provide a range, or list, of such measures as part of a recipient's grievance procedures should be limited to complaints alleging sex-based harassment, consistent with the current regulations. Considering the wide range of conduct that may constitute alleged sex discrimination, the Department submits that it would be unduly burdensome to a recipient to attempt to anticipate all forms of alleged sex discrimination that may arise and the range of supportive measures and range, or list, of disciplinary sanctions and remedies that may be responsive to all sex discrimination. For this reason, the Department proposes continuing to limit this aspect of the grievance procedures to complaints of alleged sex-based harassment.
Additional detailed explanation of the requirements of proposed § 106.46 is provided in the discussion of each subsection, including proposed changes from current § 106.45.
The Department's current position is that the requirements in proposed § 106.46, which are incorporated from current § 106.45 with modifications as explained in the discussion of proposed § 106.46 (Section II.F.2.c) and in the discussion of each provision below, would afford protections that are appropriate to the age, maturity, independence, needs, and context of students in postsecondary institutions.
To guide a postsecondary institution in making this determination, proposed § 106.46(b) would set out two factors that a postsecondary institution must consider, at a minimum: whether the person's primary relationship with the postsecondary institution is to receive an education and whether the alleged sex-based harassment occurred while the person was performing employment-related work. The Department's tentative view is that a postsecondary institution must consider these factors because they appropriately focus the inquiry on the primary relationship between the complainant or respondent and the postsecondary institution (
In addition, current § 106.45(b)(2) requires that the notice inform the parties that they may have an advisor of their choice, who may be an attorney, that they have a right to inspect and review certain evidence, and of any provision in the recipient's code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process. Section 106.45(b)(2) also provides that if, in the course of an investigation, the recipient decides to investigate allegations about the complainant or respondent that are not included in the initial notice, the recipient must provide notice of the additional allegations to the parties whose identities are known.
Because the proposed regulations do not include a formal complaint requirement, the proposed regulations would clarify that written notice of allegations must be provided upon initiation of the postsecondary institution's sex-based harassment grievance procedures as described in proposed § 106.46. Proposed § 106.46(c)(3) would include an allowance for a reasonable extension of time to provide this written notice of allegations to the extent a postsecondary institution has legitimate concerns for a party's safety or the safety of any other person as a result of the notification.
Proposed § 106.46(c) would also revise the required statements that a postsecondary institution must include in the written notice of allegations. Under proposed § 106.46(c), a postsecondary institution would be
The Department proposes that the notice of allegations should be in writing and include more detail in sex-based harassment cases involving postsecondary students. As explained in the discussion of proposed § 106.46 (Section II.F.2.c), students at postsecondary institutions are distinct from both elementary and secondary students and from school employees in that postsecondary students are largely young adults who may be expected to self-advocate in grievance procedures and lack protections available to many employees under Title VII, collective bargaining agreements, and tenure. The Department therefore proposes that a written notice of allegations is particularly important to support postsecondary students' ability to understand the requirements of Title IX grievance procedures and to effectively advocate for themselves.
The Department proposes removing the requirement that a recipient's grievance procedures must be initiated by a formal complaint. As stated in the discussion of the proposed definition of “complaint” (§ 106.2), it is the Department's tentative view, and one expressed by stakeholders during the June 2021 Title IX Public Hearing, that this formal complaint requirement unduly narrows the scope of a recipient's responsibility not to discriminate based on sex in its education program or activity. Consequently, the Department proposes revising the definition of “complaint” to clarify that a complaint would be the mechanism by which an individual may request that a recipient initiate its grievance procedures in response to all forms of sex discrimination, and would permit individuals to make complaints in writing or orally to ensure that a recipient receives all complaints that would alert it to possible sex discrimination in violation of Title IX in its education program or activity.
Proposed § 106.46(c)(3) would specify that legitimate concerns for safety must be based on individualized considerations and not on mere speculation or stereotypes and also would clarify that any delay must be reasonable. Further, regardless of whether the timeframe is extended, the proposed provision would continue to require that a party receive notice “with sufficient time . . . to prepare a response before any initial interview.”
OCR received feedback from the June 2021 Title IX Public Hearing indicating that requiring recipients to include disciplinary provisions related to false statements in a notification about allegations of sex-based harassment risks creating the misimpression that the recipient has reason to believe that the complainant may consider providing knowingly false statements, or that individuals are especially likely to knowingly make false statements in sex-based harassment matters. The Department recognizes this concern and seeks to clarify that the inclusion of such a statement is not meant to imply in any way that any party to a recipient's grievance procedures would be presumed to be making a false statement. Nor is it intended to suggest that it would be a false statement if a report or allegation of misconduct does not align in all respects with the statement of other witnesses or parties, or that it would be a false statement if a respondent or witness disagrees with the allegations, or an allegation contains unintentional inaccuracies. As generally understood, a false statement is one that a person makes knowing that the statement is false or that the person makes in bad faith. A good faith mistake would generally not constitute a false statement. Further, proposed § 106.45(h)(5) would, like the current regulations, specifically prohibit a recipient from disciplining a party, witness, or other participant in a
As described in the discussion of proposed § 106.45(c), the Department also proposes requiring a postsecondary institution to include a statement in the notice of allegations that retaliation is prohibited. OCR received feedback from student complainants in the June 2021 Title IX Public Hearing and in listening sessions describing retaliation by respondents and respondents' friends that they experienced after coming forward with information about sex-based harassment. The proposed change would serve the purpose of alerting the parties early in the grievance procedures, at the first time they receive notice from the postsecondary institution regarding each other's identity and the specific allegations at issue, that retaliation based on participation in the grievance procedures is prohibited for parties and others.
Proposed § 106.46(c), by incorporating the requirements of proposed § 106.45(c), would preserve the requirement in the current regulations that a recipient provide written notice of additional allegations to the parties if, in the course of an investigation, the postsecondary institution decides to investigate additional allegations about the respondent that were not included in the initial notice. The reasons for maintaining and clarifying this requirement are explained in more detail in the discussion of proposed § 106.45(c).
In addition, proposed § 106.46(d)(2) would maintain the requirement from the 2020 amendments that a complainant's request for voluntary dismissal of a complaint or complaint allegations must be made in writing to the Title IX Coordinator, for postsecondary student complainants alleging sex-based harassment. The Department understands “written request” to include a request delivered to the Title IX Coordinator in person, by mail, by electronic mail, and by any additional method designated by the recipient, including an online portal that indicates that the complainant is the person requesting withdrawal of the allegations. This is consistent with current § 106.30, which requires a “formal complaint” to be in writing and filed with the Title IX Coordinator.
In the preamble to the 2020 amendments, the Department stated that “the burden associated with providing this notice [required by current § 106.45(b)(5)(v)] is outweighed by the due process protections such notice provides.” 85 FR 30299. The Department further noted that the parties should receive notice with sufficient time to prepare for meetings, interviews, or hearings “[b]ecause the stakes are high for both parties in a grievance process.”
With respect to advisors, current § 106.45(b)(5)(iv) requires a recipient to provide parties with the opportunity to be accompanied to any meeting or proceeding by the advisor of their choice. The current provision also notes that the advisor may be, but is not required to be, an attorney. In addition, the current provision states that the recipient must not limit the choice or presence of the advisor for either the complainant or the respondent; however, the recipient may limit the extent to which the advisor may participate, as long as the restrictions apply equally to both parties. The Department proposes to retain these requirements in proposed § 106.46(e)(2). The Department proposes two non-substantive changes: removing the word “either” because it is unnecessary and replacing the term “both parties” with “the parties” since some proceedings may involve more than two parties.
As explained in the discussion of the Framework for Grievance Procedures for Complaints of Sex Discrimination (Section II.F), students at postsecondary institutions are, generally, differently situated from other participants in a recipient's grievance procedures in a way that the Department currently believes warrants the proposed right to an advisor under § 106.46(e)(2) when they are a party in a recipient's grievance procedures for complaints of sex-based harassment. For example, unlike elementary school and secondary school students, postsecondary students generally would not be entitled to a parent, guardian, or other authorized legal representative at meetings or proceedings, yet they may also not have sufficient experience with self-advocacy or maturity to participate in meetings or proceedings without the assistance of an advisor. And while employees may have access to a union representative or other employee-specific resources, postsecondary students do not generally have comparable resources available to them.
In addition, postsecondary students who are participating in grievance procedures for complaints of sex-based harassment are differently situated from postsecondary students who are participating in grievance procedures for complaints of sex discrimination other than sex-based harassment. Unlike many complaints of sex discrimination, complaints of sex-based harassment often involve multiple parties whose conduct and credibility are subjected to scrutiny. Investigations of complaints of sex-based harassment are more likely to involve sensitive material and to engender disputes over what evidence is relevant and what evidence is impermissible. Sex-based harassment complaints involving postsecondary students will often involve a student respondent who faces a potential disciplinary sanction. The Department currently believes that these features of the sex-based harassment grievance procedures support the proposed right to an advisor for postsecondary students
The Department also emphasizes that in grievance procedures when one party is a postsecondary student and another party is not, proposed § 106.46(e)(2) would require a postsecondary institution to permit the non-student party the same opportunity for an advisor as the postsecondary student to ensure equitable opportunity to participate, as would be required by proposed § 106.45(b)(1). In addition, as explained in the discussion of proposed § 106.46(f)(1), for a postsecondary institution that exercises its discretion to conduct live hearings with advisor-conducted questioning under proposed § 106.46(f)(1), advisors would be a necessary component of that process. The Department also notes that in proceedings based on an allegation of dating violence, domestic violence, sexual assault, or stalking, postsecondary institutions are separately required by the Clery Act to provide the parties with the opportunity to be accompanied to any meeting or proceeding by an advisor of their choice.
Proposed § 106.46(e)(3) would clarify that a postsecondary institution may permit these individuals to attend any meeting or proceeding during the grievance procedures in matters of sex-based harassment involving a student complainant or student respondent.
The Department also proposes adding “if any” to this provision to make clear that a postsecondary institution generally would have the discretion not to permit parties to bring individuals other than their advisor of choice to meetings or proceedings. However, there are certain situations in which postsecondary institutions may need to permit a party to have another person, in addition to an advisor, present during any meeting or proceeding in order to ensure that all parties, witnesses, and others participating can engage fully in the grievance procedures as required by Title IX. In particular, a postsecondary institution must comply with its obligations to ensure effective communication for persons with disabilities through the provision of auxiliary aids and services (such as providing a sign language interpreter for a party who is deaf or hard of hearing) and by making reasonable modifications to policies, practices, and procedures to avoid discrimination on the basis of disability. In addition, a postsecondary institution may need to provide language assistance services, such as translations or interpretation for persons with limited English proficiency. In these circumstances, a postsecondary institution would need to provide the parties with the same opportunities to have necessary support persons, although this may mean that only one party (
Following the implementation of the 2020 amendments, stakeholders urged the Department to amend the regulations to provide recipients with discretion to determine whether parties may present expert witnesses, as long as the opportunity to present or not to present experts is provided equally to the parties. The Department recognizes that expert witnesses would not have observed the alleged conduct (unlike relevant fact witnesses, which a party has a right to present under current § 106.45(b)(5)(ii) and proposed § 106.45(f)(2)) and may not be necessary or helpful to the recipient in determining whether sex-based harassment occurred. Thus, the Department's current position is that a postsecondary institution would be in the best position to identify whether a particular case might benefit from expert witnesses. A postsecondary institution should also consider whether an expert witness would impede a prompt resolution to the grievance procedures due to the time that may be needed to hire an expert witness, for the expert witness to review the necessary information and formulate an opinion, and to arrange for the expert's attendance at any pertinent meetings or proceedings.
Although a postsecondary institution would have discretion on how to proceed in allowing expert witnesses under proposed § 106.46(e)(4), it would be required to apply any determination equally to the parties. When no experts are allowed or the postsecondary institution decides to use its own expert, this determination would have to be applied to all parties. When a postsecondary institution decides to permit parties to present expert witnesses, the postsecondary institution would need to apply the same standards to determinations about the expert's participation and scope of testimony to all parties. Proposed § 106.46(e)(4) would not preclude a postsecondary institution from determining that the expert testimony of one party is permissible while another party's expert testimony is not, but it would require that a postsecondary institution apply the same standards to all parties in determining what evidence is permissible. The postsecondary
The Department emphasizes that proposed § 106.46(e)(5) would not constitute an additional basis for granting extensions beyond proposed § 106.45(b)(4). A postsecondary institution would need to continue to evaluate any possible extension of timeframes on a case-by-case basis and such extensions must be allowed only for good cause, as required by proposed § 106.45(b)(4).
Current § 106.45(b)(5)(vii) requires a recipient to create an investigative report that fairly summarizes the relevant evidence. This provision specifies that a recipient must send the investigative report in an electronic format or a hard copy to the parties and their advisors for their review and written response. The recipient must provide the report at least ten days prior to a hearing (if one is required or otherwise provided) or prior to the time of the responsibility determination.
Proposed § 106.46(e)(6)(ii) would require a postsecondary institution to provide the parties with a reasonable opportunity to review and respond to the evidence as described in the investigative report or as provided to the parties prior to the determination of whether sex-based harassment occurred. In addition, if a postsecondary institution conducts a live hearing as part of its grievance procedures, proposed § 106.46(e)(6)(ii) would require the institution to provide the opportunity to review the evidence in advance of the live hearing; however, the proposed regulations would allow the postsecondary institution to decide whether to provide the opportunity to respond to the evidence prior to the hearing, during the hearing, or both prior to and during the hearing.
Proposed § 106.46(e)(6)(iii) would require a postsecondary institution to take reasonable steps to prevent and address any unauthorized disclosures by the parties and their advisors of information and evidence obtained solely through the sex-based harassment grievance procedures.
Finally, proposed § 106.46(e)(6)(iv) would clarify that compliance with proposed § 106.46(e)(6) would satisfy the requirements of proposed § 106.45(f)(4).
In the preamble to the 2020 amendments, the Department stated that evidence should be disclosed to the extent it is “directly related” to the allegations and that “directly related may sometimes encompass a broader universe of evidence than evidence that is `relevant.' ”
To assist recipients (and parties) in determining the scope of permissible evidence, the Department proposes merging the “directly related” and “relevant” evidentiary standards by defining “relevant” in proposed § 106.2 as evidence related to the allegations of sex discrimination. Because relevant evidence includes all evidence related to the allegations of sex discrimination under investigation, any evidence that is directly related to the allegations would necessarily be considered evidence that is related to the allegations. Therefore, it is the Department's tentative view that once the term “relevant” is properly defined within the regulations, the proposed regulations would require a similar universe of evidence to be made available to the parties with one exception: unlike the current regulations, the proposed regulations would prohibit a postsecondary institution from disclosing evidence of the complainant's sexual interests and prior sexual conduct, except as narrowly permitted by proposed § 106.45(b)(7).
In the preamble to the 2020 amendments, the Department explained that using the “[directly related] approach balances the recipient's obligation to impartially gather and objectively evaluate all relevant evidence . . . with the parties' equal right to participate in furthering each party's own interests by identifying evidence overlooked by the investigator and evidence the investigator erroneously deemed relevant or irrelevant and making arguments to the decision-maker regarding the relevance of evidence and the weight or credibility of relevant evidence.”
By defining “relevant” evidence in proposed § 106.2 to encompass all evidence related to the allegations of sex discrimination, the Department would address the concern previously expressed by the Department that an investigator might erroneously screen out evidence related to the allegations that the investigator believed to be related but not relevant. In addition, in response to the concern previously expressed by the Department that the parties must have the opportunity to offer additional relevant evidence after reviewing the universe of evidence directly related to the allegations, the Department would require a postsecondary institution to give the parties an opportunity to respond to the evidence prior to the determination of whether sex-based harassment occurred.
After considering the issue, including views expressed by a wide array of stakeholders to OCR in connection with the June 2021 Title IX Public Hearing and in listening sessions, the Department thus proposes clarifying the scope of evidence that a postsecondary institution must disclose. Under proposed § 106.46(e)(6), a postsecondary institution would be required to provide equitable access to evidence that is “relevant,” as defined by proposed § 106.2, to the allegations of sex-based harassment, and not otherwise deemed impermissible regardless of relevance, as set out in proposed § 106.45(b)(7). The proposed provision would prohibit a postsecondary institution from disclosing information that is not relevant and evidence that is impermissible, including evidence of the complainant's sexual interests and prior sexual conduct, except as narrowly permitted by § 106.45(b)(7).
In addition, the Department has reweighed the facts and circumstances in light of the concerns expressed by stakeholders regarding the disclosure of information related to the complainant's sexual interests and prior sexual conduct. Considering the significant concerns that the current provision may incentivize the introduction of prejudicial information, chill reporting, and unnecessarily harm the parties, the Department does not view the requirements to disclose irrelevant evidence, as well as relevant but
In the preamble to the 2020 amendments, the Department recognized the concerns expressed by many stakeholders about the burden and costs that current § 106.45(b)(5)(vi) and (vii) may place on a recipient. In the preamble, the Department agreed that “these provisions have the potential to generate modest burden and costs, but believe[d] that the financial costs and administrative burdens resulting from the provisions are far outweighed by the due process protections ensured by these provisions.”
After considering the issue and reweighing the facts and circumstances, the Department proposes giving a postsecondary institution the discretion to decide whether to provide access to the relevant and not otherwise impermissible evidence or to provide an investigative report that accurately summarizes the relevant and not otherwise impermissible evidence and then provide access to the evidence if requested by one or more parties. Postsecondary institutions vary greatly in terms of size, resources, and expertise, and complaints of sex-based harassment also vary greatly in terms of the nature of the conduct alleged, the volume and format of the evidence, and in other ways. Proposed § 106.46(e)(6)(i) would give more flexibility to a postsecondary institution than the current regulations in the manner of presenting the evidence to the parties while ensuring that grievance procedures remain equitable and that the institution can meet its Title IX obligation to provide its program or activity free from sex discrimination.
Either option under proposed § 106.46(e)(6)—providing an investigative report or the evidence itself—would enable the parties to access the universe of evidence relevant to the allegations of sex-based harassment. In turn, this would enable the parties to meaningfully prepare arguments, contest the relevance of evidence, and present additional evidence for consideration. The Department tentatively views the requirement to convey the same universe of evidence in two different formats (an investigative report and access to the evidence) as unnecessary for ensuring that grievance procedures are implemented equitably and effectively, and as increasing costs, burden, and delay without providing a meaningful benefit to the parties.
Finally, proposed § 106.46(e)(6)(iv) would clarify that compliance with proposed § 106.46(e)(6) would satisfy the requirements of proposed § 106.45(f)(4). Proposed § 106.45(f)(4) requires recipients to provide the parties with a description of the evidence that is relevant to the allegations of sex discrimination and not otherwise impermissible, as well as a reasonable opportunity to respond.
Beyond the general requirement for equitable access to the relevant evidence, the Department is not proposing specific requirements for the manner of providing the investigative report or the evidence to the parties. A postsecondary institution would have the discretion to determine how to provide this information, as long as the parties and their advisors have a meaningful opportunity to review the information. As discussed below, proposed § 106.46(e)(6)(iii) would require a postsecondary institution to take reasonable steps to prevent unauthorized disclosure of information and evidence. The manner of providing the information to the parties may vary depending on the available resources to the institution, the location of the parties, the type of evidence, and other case-specific circumstances. The Department seeks to provide this flexibility to postsecondary institutions while ensuring meaningful review and protection of the information.
Following the implementation of the 2020 amendments, OCR received feedback from stakeholders in listening sessions and in comments provided in
After considering the issue and reweighing the facts and circumstances, including feedback received in connection with the June 2021 Title IX Public Hearing, the Department proposes in § 106.46(e)(6)(ii) to remove the specific timeframes and instead permit a postsecondary institution flexibility to set reasonable timeframes for ensuring that parties have a reasonable opportunity to review and respond to evidence. When the grievance procedures do not involve a live hearing, proposed § 106.46(e)(6)(ii) would require a postsecondary institution to provide the parties with a reasonable opportunity to review and respond to the evidence prior to the determination of whether sex-based harassment occurred. When a postsecondary institution conducts a live hearing as part of its grievance procedures, proposed § 106.46(e)(6)(ii) would require the institution to provide the parties with the opportunity to review the evidence in advance of the live hearing. This provision would allow the postsecondary institution to decide whether to provide the opportunity to respond to the evidence prior to the hearing, during the hearing, or both prior to and during the hearing.
The nature and volume of evidence varies greatly based on the allegations in a complaint and the surrounding circumstances. The Department is proposing a reasonable timeframe to accommodate this variation. Parties may need more time to meaningfully review hundreds of pages of evidence and dozens of witness statements than they would need to review a much smaller evidentiary file. Proposed § 106.46(e)(6)(ii) would increase discretion for a postsecondary institution while still ensuring that the parties would be able to meaningfully review and respond to the relevant and not otherwise impermissible evidence prior to the live hearing or other determination of whether sex-based harassment occurred.
In light of the important privacy considerations related to allegations and evidence in sex-based harassment grievance procedures, the Department proposes, at § 106.46(e)(6)(iii), to require a postsecondary institution to take reasonable steps to prevent and address any unauthorized disclosures by the parties and their advisors of information and evidence obtained through the sex-based harassment grievance procedures. As noted above, unauthorized disclosure of sensitive information could threaten the fairness of the process by deterring parties or witnesses from participating, affecting the reliability of witness testimony, leading to retaliatory harassment, and other consequences. The Department is not proposing specific steps that a postsecondary institution must take, as what is reasonable to prevent unauthorized disclosure may vary depending on the circumstances. In some circumstances, it may be sufficient to inform the parties of the institution's expectations for how the parties should safeguard the evidence and the consequences for unauthorized disclosures. A postsecondary institution may also use software that restricts further distribution of any reports or records. A postsecondary institution would have the discretion to define for the parties what types of further disclosures are permissible; however, they would not be able to prohibit disclosures to confidential resources, such as a party's doctor or mental health counselor.
At the live hearing, the decisionmaker is required to permit each party's advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Cross-examination at the live hearing must be conducted directly, orally, and in real time by the party's advisor of choice and never by a party personally. At the request of either party, the recipient must provide for the live hearing to occur with the parties located in separate rooms with technology enabling the decisionmaker and parties to simultaneously see and hear the party or the witness answering questions.
Only relevant cross-examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the decisionmaker must first determine whether the question is relevant and explain any decision to exclude a question as not relevant. If a party does not have an advisor present at the live hearing, the recipient must provide without fee or charge to that party, an advisor of the recipient's choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party. Questions and
If a party or witness does not submit to cross-examination at the live hearing, the decisionmaker must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decisionmaker cannot draw an inference about the determination regarding responsibility based solely on a party's or witness's absence from the live hearing or refusal to answer cross-examination or other questions.
Current § 106.45(b)(6)(ii) permits, but does not require, elementary and secondary school recipients, and other recipients that are not postsecondary institutions, to provide for a hearing as part of their Title IX grievance process for formal complaints of sexual harassment.
With or without a hearing, after the recipient has sent the investigative report to the parties and before reaching a determination regarding responsibility, the decisionmaker must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.
With or without a hearing, questions and evidence about the complainant's sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant's prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant's prior sexual behavior with respect to the respondent and are offered to prove consent. The decisionmaker must explain to the party proposing the questions any decision to exclude a question as not relevant.
Proposed § 106.46(f)(2) would state that compliance with proposed § 106.46(f)(1)(i) or (ii) satisfies the requirements of § 106.45(g) to provide a process that enables the decisionmaker to adequately assess the credibility of the parties and witnesses to the extent credibility is both in dispute and relevant to evaluating one or more allegations of sex discrimination.
Proposed § 106.46(f)(3) would require the decisionmaker to determine whether a proposed question is relevant and not otherwise impermissible under proposed §§ 106.2 and 106.45(b)(7) prior to the question being posed and explain any decision to exclude a question as not relevant, which is the same as the requirement in current § 106.45(b)(6)(i) and (ii). If a decisionmaker determines that a party's question is relevant and not otherwise impermissible, then it must be asked, with the exception that a postsecondary institution must not permit questions that are unclear, such that they are vague or ambiguous, or harassing of the party being questioned. A postsecondary institution would also be permitted to impose other rules regarding decorum, provided they apply equally to the parties.
Although proposed § 106.46(f)(1) and (3) do not include the specific language from current § 106.45(b)(6)(i) and (ii) regarding questions and evidence about the complainant's sexual predisposition or prior sexual behavior, the concepts from the current regulations would be included in proposed § 106.45(b)(7) on evidence that is impermissible regardless of relevance and would be cross-referenced in proposed § 106.46(f)(1) and (3).
The Department proposes revising the language in current § 106.45(b)(6)(i) that prohibits the decisionmaker from relying on any statement of a party or witness who does not submit to cross-examination at the live hearing in reaching a determination regarding responsibility. Instead of prohibiting the decisionmaker from considering all prior statements in these cases, proposed § 106.46(f)(4) would provide that if a party does not respond to questions related to their credibility, the decisionmaker must not rely on any statement of that party that supports that party's position. The Department also proposes maintaining, with minor revisions, the general principle from current § 106.45(b)(6)(i) regarding drawing an inference based solely on a hearing participant's decision not to respond to questions. Proposed § 106.46(f)(4) would prohibit the decisionmaker from drawing an inference about whether sex-based harassment occurred based solely on a party's or witness's refusal to respond to questions related to credibility, including a refusal to answer such questions during a live hearing.
Proposed § 106.46(g) would eliminate the requirement in current § 106.45(b)(6)(i) that a postsecondary institution must provide for a live hearing with cross-examination in its grievance procedures for complaints of sex-based harassment. Instead, proposed § 106.46(g) would permit, but not
For information regarding proposed requirements related to evaluating allegations and assessing credibility for complaints of sex discrimination other than sex-based harassment complaints involving a student complainant or student respondent at a postsecondary institution, see the discussion of proposed § 106.45(g).
The Department further stated that cross-examination is a necessary part of a fair, truth-seeking grievance process in postsecondary institutions, and that the 2020 amendments include appropriate safeguards that minimize the traumatic effect on complainants.
The Department stated that “the Sixth Circuit has held that cross-examination, at least conducted through a party's advisor, is necessary to satisfy due process in sexual misconduct cases that turn on party credibility.”
The Department noted that the
The Department also acknowledged in the preamble to the 2020 amendments that following the public comment period on the 2018 NPRM, the U.S. Court of Appeals for the First Circuit reached a different holding regarding cross-examination than the Sixth Circuit in a Title IX sexual misconduct case.
After considering the issue and reweighing the facts and circumstances, including views expressed by a wide array of stakeholders, particularly those with experience in implementing or participating in a recipient's process that included the live hearing and cross-examination requirements, and reviewing the applicable case law and academic writing on the topic of cross-examination and alternatives to cross-examination, the Department proposes eliminating the requirement for postsecondary institutions to hold a live hearing with advisor-conducted cross examination while still permitting them to hold such a hearing if the postsecondary institution deems it appropriate in a particular sex-based harassment case. The Department's tentative view is that the requirement for all postsecondary institutions to hold a live hearing with advisor-conducted cross-examination exceeds what is required in order to provide equitable procedures to the parties and is not necessary to provide a respondent with a meaningful opportunity to be heard. The Department's view is also that this requirement in the current regulations does not adequately account for the diversity of postsecondary institutions subject to Title IX. This proposed approach would provide a recipient with reasonable options for how to structure its grievance procedures to ensure that they are equitable for the parties while accommodating each recipient's administrative structure, education community, the applicable Federal and State case law, and State or local legal requirements by still permitting any postsecondary institution that so chooses to hold a live hearing with advisor-conducted cross-examination.
The Department's tentative view is that neither Title IX nor due process and fundamental fairness require postsecondary institutions to hold a live hearing with advisor-conducted cross-examination in all cases. The Department currently believes, however, that a postsecondary institution should be required to provide a live-questioning process that enables the decisionmaker to adequately assess the credibility of the parties and witnesses to the extent credibility is in dispute and is relevant to evaluating one or more allegations of sex-based harassment in its grievance procedures for sex-based harassment involving a student complainant or student respondent. Further, the Department currently believes that the procedures described in proposed § 106.46(f) and (g) would appropriately protect the right of all parties to have a meaningful opportunity to respond to allegations and the postsecondary institution's interest in grievance procedures that enable the decisionmaker to seek the truth and minimize chilling effects on the reporting of sex-based harassment and on participation in the recipient's grievance procedures by a complainant or respondent.
The Department's tentative position is that the procedures described in proposed § 106.46(f) and (g) appropriately recognize that although all postsecondary institutions, regardless of their size, type, administrative structure, and location, must comply with the requirements of Title IX, promulgating regulations that take into account the diversity of postsecondary institutions subject to Title IX would best ensure effective implementation of Title IX. In view of this, proposed § 106.46(g) would permit, but not require, all postsecondary institutions to hold a live hearing and proposed § 106.46(f)(1) would permit, but not require, postsecondary institutions to use advisor-conducted questioning at a live hearing when the decisionmaker determines that credibility is in dispute and relevant to evaluating one or more allegations of sex-based harassment. Under this approach, a postsecondary institution would still be able to hold live hearings if it chose to do so and a postsecondary institution, including a public postsecondary institution located within the jurisdiction of the Sixth Circuit where, as described above, advisor-conducted cross-examination is currently required, may use advisor-conducted questioning at a live hearing under the circumstances articulated by the court in
Even absent a general right to cross-examination, some courts have held, in both public and private postsecondary settings, that some method of live cross-examination is required by due process and basic fairness when a disciplinary charge rests on a witness's or complainant's credibility.
Following the Sixth Circuit's decision in
The Department notes that a few district courts outside of the Sixth Circuit recently have cited
After reevaluating this issue, including cases decided both before and after the promulgation of the 2020 amendments, it is the Department's tentative position that the relevant case law does not require a postsecondary institution to provide for a live hearing with advisor-conducted cross-examination in all cases, at least as long as it provides another live method of determining credibility. As noted, the proposed regulations would permit a postsecondary institution to employ live, advisor-conducted cross-examination when applicable case law or other sources of law require that approach or the postsecondary institution uses its discretion to choose that approach. The Department further notes that each permissible option for evaluating the allegations and assessing credibility under the proposed regulations would require that the questions posed be answered live, whether in individual meetings with the decisionmaker or investigator or at a live hearing.
In particular, there is growing evidence to suggest that “adults who have been sexually victimized may be a particularly vulnerable group of witnesses overall,” especially during cross-examination. Rachel Zajac & Paula Cannan,
In addition, studies have found that information-gathering approaches such as questions asked in individual meetings instead of during a live hearing (sometimes described as inquisitorial procedures) are more likely to produce the truth than adversarial methods like cross-examination. These studies “suggested that inquisitorial procedures may result in the presentation of more accurate and less biased information.” Mark R. Fodacaro et al.,
The Department recognizes that some courts, advocates, and legal scholars believe that advisor-conducted cross-examination is the most effective way, and in the view of some, the only way, to ensure the accuracy of witness testimony, especially in cases that hinge on credibility. After reevaluating the issue, however, including the case law and research discussed above, the Department's tentative position is that methods that require parties and witnesses to answer questions in a live format, other than advisor-conducted cross-examination during a live hearing, can provide an effective way to seek the truth in sex-based harassment cases involving postsecondary students and ensure that the parties have a meaningful opportunity to be heard. For this reason, to the extent credibility is in dispute and relevant to evaluating one or more allegations of sex-based harassment, proposed § 106.46(f)(1) would permit a postsecondary institution to have the decisionmaker ask the parties and witnesses relevant questions and follow-up questions, including questions challenging credibility. Proposed § 106.46(f)(1) would permit the decisionmaker to do this during individual meetings with the parties or at a live hearing. Proposed § 106.46(f)(1) would also allow each party to propose to the decisionmaker or investigator relevant questions and follow-up questions, including those challenging credibility that they want asked of any party or witness and have those questions asked, subject to the requirement in proposed § 106.46(f)(3), during individual meetings with the parties or at a live hearing, in addition to permitting any postsecondary institution that so chooses, to use advisor-conducted cross-examination. The Department's tentative view is that any benefit that adversarial cross-examination may have over other methods of live questioning is not sufficient to justify mandating that all postsecondary institutions permit adversarial cross-examination in every case, either as a matter of due process or fundamental fairness or of effectuating Title IX's nondiscrimination mandate, in light of the considerable costs imposed by adversarial cross-examination, particularly in the context of allegations of sex-based harassment.
As explained in the discussion of proposed § 106.46(f)(1), regardless of format, this credibility assessment, if needed to evaluate one or more allegations of sex-based harassment, would have to take place prior to the decisionmaker determining whether sex-based harassment occurred. The decisionmaker must determine whether a proposed question is relevant prior to the question being posed and explain any decision to exclude a question as not relevant. If a decisionmaker determines that a party's question is relevant and not otherwise impermissible, then the question must be asked; however, a postsecondary institution must not permit questions that are unclear or harassing of the party being questioned. A postsecondary institution would also retain discretion to impose other reasonable rules regarding decorum, provided they apply equally to the parties. The Department anticipates that the requirements in proposed § 106.46(f)(1) would provide an effective means for assessing credibility and seeking the truth while avoiding some of the deficiencies or drawbacks that may be associated with requiring advisor-conducted cross-examination in all sex-based harassment cases and for all types of postsecondary institutions. The Department notes that proposed § 106.46(e)(6)(i) would require a postsecondary institution to either provide the parties with equitable access to the relevant and not otherwise impermissible evidence or to the same investigative report that accurately summarizes this evidence. This evidence or investigative report would include a discussion of the evidence obtained through questioning of the parties and witnesses by the decisionmaker. In addition, although not required to do so, nothing in proposed § 106.46(f) would prohibit a postsecondary institution from compiling a transcript of questioning of
Under proposed § 106.46(f)(1), a postsecondary institution would have discretion to structure its processes for enabling the decisionmaker to adequately assess the credibility of the parties and witnesses to the extent credibility is both in dispute and relevant to evaluating one or more allegations of sex-based harassment as long as the process complies with the requirements set out in proposed § 106.46(f)(1) and (3). For example, some postsecondary institutions may decide to have the decisionmaker ask their questions and the parties' questions of any party and witnesses during individual meetings. Other postsecondary institutions may decide to hold a live hearing in which a decisionmaker poses their own questions and follow-up questions to the parties and also asks questions and follow-up questions of each party and witnesses that were proposed by the other party. In all instances, a postsecondary institution would not be permitted to have grievance procedures in which the questions and answers would be provided in writing. Although the discussion here refers to witnesses, the Department recognizes that not all grievance procedures will involve witnesses in addition to the parties.
Notwithstanding the research discussed above regarding the potential deficiencies of advisor-conducted cross-examination as a truth-seeking tool, some postsecondary institutions may view it as the most effective means to assess credibility in certain cases and may choose to use it or may be required to use it based on the jurisdiction in which they are located. To accommodate these postsecondary institutions, proposed § 106.46(f)(1) would permit a postsecondary institution to use advisor-conducted questioning at a live hearing to satisfy the requirement in proposed § 106.46(f)(1) regarding a process for assessing credibility. During this questioning, the party's advisor would be permitted to ask any party and any witnesses all relevant questions and follow-up questions, including those challenging credibility, subject to the requirements in proposed § 106.46(f)(3), which are discussed above.
The Department proposes revisions to the language in current § 106.45(b)(6)(i) that was vacated by the U.S. District Court of Massachusetts. The Department recognizes that the language in current § 106.45(b)(6)(i) placing limitations on the decisionmaker's ability to consider statements not subject to cross-examination was vacated by the district court and is thus no longer part of the current regulations. The Department is concerned, however, that placing no limitations on the decisionmaker's ability to consider statements made by a party who does not submit to a credibility assessment could lead to manipulation by the parties. For example, if there were no limitations placed on the decisionmaker's ability to consider prior statements from parties who do not submit to a credibility assessment, a complainant could write an email to a friend and leave a voicemail for another friend detailing the events related to the alleged sex-based harassment. If the complainant refused to submit to a credibility assessment, the decisionmaker would be permitted to consider the email and voicemail for their truth, but the respondent would not have an opportunity to question the complainant, including to assess credibility. This same result could also occur if a respondent writes an email to a friend and leaves a voicemail for another friend detailing the events in question and then refuses to submit to a credibility assessment. Under proposed § 106.46(f)(4), if a party does not respond to questions related to their own credibility, the decisionmaker would be prohibited from relying on any statement of that party that supports that party's position. The Department's proposed language is intended to avoid situations like that described above in which a party could avoid responding to questions related to their own credibility and the decisionmaker would have to consider prior statements made by that party that support that party's position. It would apply when a party refuses to answer questions related to their own credibility either during the investigation in individual meetings with the decisionmaker or investigator or during the live hearing, if the postsecondary institution holds a live hearing. The Department would propose this change regardless of whether the district court's vacatur is ultimately upheld on appeal.
The Department also proposes incorporating language similar to current § 106.45(b)(6)(i) regarding inferences based on a party's or witness's absence from a live hearing or refusal to answer questions related to credibility into proposed § 106.46(f)(4). Under proposed § 106.46(f)(4), the decisionmaker would be prohibited from drawing an inference about whether sex-based harassment occurred based solely on a party's or witness's absence from a live hearing or refusal to respond to questions related to credibility, including a refusal to answer such questions during a live hearing.
The Department's tentative position is that it is important to explicitly require in the regulatory text that a postsecondary institution prohibit questions that are unclear or harassing of the party being questioned because a proceeding in which questions are unclear or harassing is not an equitable proceeding and not one likely to produce accurate information needed for evaluating the allegations of sex-based harassment and assessing credibility which impacts the postsecondary institution's ability to determine whether sex-based harassment occurred and effectuate Title IX's nondiscrimination mandate. A question would be unclear if it is vague or ambiguous such that it would be difficult for the decisionmaker or the party being asked to answer the question to discern what the question is about. For example, some of the key words in the question may have more than one meaning, or the period of time to which the question refers to may be unclear. Under the proposed regulations, a postsecondary institution would be permitted to request that the party or party's advisor rephrase any questions that do not comply with these requirements. Permitting a postsecondary institution to impose other reasonable rules of decorum as long as it applies them equally to the parties and their advisors is consistent with current § 106.45(b) and proposed § 106.45(i), which would permit a postsecondary institution to adopt additional provisions as part of its grievance procedures as long as they apply equally to the parties, and would also assist it in crafting procedures that are designed to accurately assess credibility and are also equitable for the parties. For these reasons, the Department included language in proposed § 106.46(f)(3) to make clear that a postsecondary institution must prohibit questions that are unclear or harassing of the party being questioned and to permit a postsecondary institution to impose other reasonable rules regarding decorum. In addition, when considering what other reasonable rules of decorum to impose, if any, a postsecondary institution should be aware of current § 106.6(d), which the Department is not proposing to revise. Current § 106.6(d) states that nothing in the Title IX regulations require a recipient to restrict any rights that would otherwise be protected from government action by the First Amendment of the U.S. Constitution.
In addition to the requirements of proposed § 106.45(h), which would apply to all complaints of sex discrimination, postsecondary institutions would have to comply with proposed § 106.46(h) in the context of complaints of sex-based harassment involving a student complainant or student respondent. Proposed § 106.46(h) would remove the current
The Department also proposes revisions to improve overall clarity and to make § 106.46(h) consistent with other changes in the regulations. Proposed § 106.46(h)(1)(ii) would clarify that a postsecondary institution must include information about the policies and procedures that it used to evaluate the allegations in the complaint. The proposed regulations also would clarify at § 106.46(h)(1)(iii) that the written determination must provide the decisionmaker's evaluation of relevant evidence and determination as to whether sex-based harassment occurred. This would consolidate and simplify the current regulations' separate requirements at § 106.45(b)(7)(ii)(C) and (E) that the postsecondary institution provide findings of fact supporting its determination and provide a statement of, and the rationale for, the result as to each allegation, including the postsecondary institution's determination regarding responsibility. The Department anticipates that this consolidated requirement would provide the parties with a more useful explanation of how a recipient reached its determination than as required under the current regulations, and would render unnecessary the current requirement to provide the “conclusions regarding the application of the recipient's code of conduct to the facts,” at § 106.45(b)(7)(ii)(D).
Further, the Department proposes that providing this determination in writing regarding sex-based harassment is appropriate in light of the particular circumstances of postsecondary students, as explained in the discussion of proposed § 106.46 (Section II.F.2.c), and the requirement that a recipient not discriminate based on sex in its education program or activity.
The proposed regulations would also maintain, for postsecondary students in proposed § 106.46(i), the right to appeal to a different decisionmaker as an additional safeguard designed to protect the integrity of the process. It is the Department's current position that appeals can be an “important mechanism to reduce the possibility of unfairness or to correct potential errors made in the initial responsibility determination.” 85 FR 30397. Proposed § 106.46(i) would provide the same grounds for appeal in cases involving postsecondary students as are set out in the current regulations on appeals. More specifically, under the proposed regulations, postsecondary institutions in cases involving one or more students must offer the right to appeal on any of the following bases that may have affected the postsecondary institution's determination: (i) a procedural irregularity that would have altered the determination of whether sex-based harassment occurred;
The Department proposes substituting “complaint” for “formal complaint” because the proposed Title IX regulations no longer use the term “formal complaint,” as explained in the discussion of the proposed definition of “complaint” (§ 106.2).
The Department also proposes referring to “the parties” rather than “both parties” because there may be instances in which complaints are consolidated and there is more than one complainant or respondent in a single investigation and hearing.
Lastly, the Department proposes requiring that postsecondary institutions fulfill the following requirements by communicating with the parties in writing: notifying the parties when an appeal is filed; providing the parties with a reasonable and equivalent opportunity to make a statement supporting or challenging the outcome; and notifying all parties of the result of the appeal, and the rationale for the result. It is the Department's tentative view that preserving the requirements that a postsecondary institution must comply with these provisions in writing is appropriate in light of the particular circumstances of postsecondary students, as explained in the discussion of proposed § 106.46 (Section II.F.2.c), and the requirement that a recipient not discriminate based on sex in its education program or activity.
Finally, the Department proposes that preserving the requirements that postsecondary institutions must comply with these provisions in writing is appropriate in light of the particular circumstances of postsecondary students, as explained in the discussion of proposed § 106.46 (Section II.F.2.c), and the requirement that a recipient not discriminate based on sex it its education program or activity.
As explained in the Background discussion of the History of Title IX's Nondiscrimination Mandate and Related Regulations, the regulations pertaining to pregnancy and parental status for students and employees have remained consistent since HEW first promulgated them in 1975. The regulations give effect to Title IX's prohibition on sex discrimination in a recipient's education program or activity in two ways. First, the Department's Title IX regulations prohibit sex discrimination based on pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom, as well as sex-based distinctions based on parental, family, or marital status. 34 CFR 106.21(c)(1) and (2), 106.40(a), 106.40(b)(1), 106.57(a)(1), and 106.57(b). This prohibition ensures that persons are not denied or limited in their access to a recipient's program or activity because of sex-based stereotypes associated with pregnancy, parenting, or marital status. Second, current §§ 106.21(c)(3), 106.40(b)(4), and 106.57(c) require that a recipient treat a student or employee's pregnancy or related conditions in the same manner with respect to certain matters as any other temporary disability. The regulations also require a recipient to take proactive steps, such as providing for leave and reinstatement for pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom, without the need to show comparable treatment with persons with temporary disabilities. 34 CFR 106.40(b)(5), 106.57(d). These provisions in the current regulations underscore that Title IX requires a variety of implementation strategies if it is to serve as a “strong and comprehensive measure,” 118 Cong. Rec. at 5804 (statement of Sen. Bayh), to “achieve[ ] . . . the objective[ ]” of eliminating sex discrimination in federally subsidized education programs and activities under 20 U.S.C. 1682,
The Title IX regulations regarding pregnancy and related conditions have remained static for nearly a half century. In that time, much has been learned about what appropriate standards are necessary to afford students and employees the ability to learn and work while pregnant or experiencing pregnancy-related conditions, and about what is necessary to ensure that such persons are not subject to discrimination on the basis of these conditions. As explained in greater detail in the discussion of the specific proposed regulations, the Department heard feedback from stakeholders through the June 2021 Title IX Public Hearing and in meetings held in 2022 under Executive Order 12866, after the NPRM was submitted to OMB, that revisions to the Department's Title IX pregnancy regulations are necessary to give effect to the statute's nondiscrimination mandate in the contemporary educational context. Several stakeholders told the Department that the regulations are not sufficient to ensure full access to educational and employment opportunities for students and employees who are pregnant, experiencing pregnancy-related conditions, or who have been pregnant. They requested that the Department address forms of discrimination based on pregnancy and related conditions that are not currently covered explicitly by the regulations, such as discrimination based on past pregnancy and medical conditions related to pregnancy and childbirth, including lactation, and clarifying a recipient's obligation to provide reasonable modifications to students because of pregnancy or related conditions. Stakeholders argued that students generally may not be aware of their rights and urged therefore that employees need better training in how to support students who are pregnant or experiencing pregnancy-related conditions. Further, stakeholders stressed that when simple modifications such as leave for childbirth and recovery or intermittent absences for lactation were not provided, students could face partial or total exclusion from education and a loss of future economic stability. They also asked that the Department strengthen its overall nondiscrimination protections for discrimination related to parental status, which is a particular issue at the postsecondary and graduate level, where education involves the provision of research projects, teaching assistance opportunities, and professional development opportunities often denied to mothers. Overall, stakeholders asked that the Department take steps to ensure that students are not denied access to a recipient's education program or activity because of pregnancy or a related condition, or due to sex discrimination based on parental status, to prevent students from being forced to choose between their children and their education.
Discrimination against students and employees who are pregnant or experiencing pregnancy-related conditions, in the Department's experience, often reflects sex discrimination, whether based on “mutually reinforcing stereotypes” about the roles of men and women,
Although the proposed regulations are exclusively for the purpose of implementing Title IX, the Department notes that the treatment of pregnancy-related discrimination under other statutes enacted since 1975 confirms a general understanding by Congress that pregnancy-based discrimination is a form of sex discrimination and provides additional context for understanding how to eliminate discrimination based on pregnancy or related conditions. For example, in 1978, three years after the Department published its Title IX regulations, Congress passed the Pregnancy Discrimination Act (PDA), which amended Title VII's prohibition on sex discrimination to prohibit employers from discriminating against employees on the basis of pregnancy, childbirth, or related medical conditions. 42 U.S.C. 2000e(k). The PDA also requires that women affected by pregnancy, childbirth, or related medical conditions be treated the same as other persons not so affected but similar in their ability or inability to work.
The fact that Congress did not amend Title IX's definition of “sex” to explicitly include pregnancy, as it did for Title VII in 1978, does not signal Congress's intent to exclude pregnancy coverage under Title IX. As articulated by the district court in
Courts have considered the scope of the term “related medical conditions” under the PDA, particularly in connection with the issue of lactation. In 2013, for example, the U.S. Court of Appeals for the Fifth Circuit held that under the PDA, lactation is a medical condition related to pregnancy, explaining that “[i]t is undisputed . . . that lactation is a physiological result of being pregnant and bearing a child” and the definition of “medical conditions” includes physiological conditions.
In June 2015, the EEOC issued enforcement guidance on pregnancy discrimination and related issues, which clarified that Title VII, as amended by the PDA, prohibits discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth. 2015 EEOC Pregnancy Guidance. The 2015 EEOC Pregnancy Guidance further emphasized that “[b]ecause lactation is a pregnancy-related medical condition, less favorable treatment of a lactating employee may raise an inference of unlawful discrimination.”
To continue producing an adequate milk supply and to avoid painful complications associated with delays in expressing milk, a nursing mother will typically need to breastfeed or express breast milk using a pump two or three times over the duration of an eight-hour workday. An employee must have the same freedom to address such lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.
Like the PDA, protections in the Affordable Care Act (ACA) also reflect the types of supports breastfeeding employees need to participate fully in their employment. The ACA amended Section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide reasonable break times and a private place, other than a bathroom, for employees covered under Section 7 of the FLSA who are breastfeeding to express milk for one year after a child's birth. 29 U.S.C. 207(r)(1). The space must be “shielded from view and free from intrusion from coworkers and the public.”
Finally, with respect to parental status, Executive Order 13152 states that to provide for a uniform policy for the Federal government's efforts to prohibit discrimination based on a person's parental status, “status as a parent” should be understood to refer to “the status of an individual who, with respect to an individual who is under the age of 18 or who is 18 or older but is incapable of self-care because of a physical or mental disability, is: (a) a biological parent, (b) an adoptive parent, (c) a foster parent, (d) a stepparent, (e) a custodian of a legal ward, (f) in loco parentis over such individual, or (g) actively seeking legal custody or adoption of such an individual.”
Against this backdrop, and after reweighing the relevant facts and circumstances, including a review of other civil rights laws that prohibit discrimination based on sex, the Department proposes revising its Title IX regulations related to pregnancy and related conditions, as well as sex discrimination related to marital, parental, and family status, to give greater effect to Title IX's nondiscrimination mandate within the educational context. The Department's current view is that in light of Title IX's focus on eliminating sex discrimination for all students and employees, it is necessary to strengthen and clarify the Department's regulatory protections for students and employees who are pregnant or experiencing pregnancy-related conditions, as well as those that prevent sex discrimination related to marital, parental, and family status.
(1) Pregnancy, childbirth, termination of pregnancy, or lactation;
(2) Medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation; or
(3) Recovery from pregnancy, childbirth, termination of pregnancy, lactation, or their related medical conditions.
Discrimination based on any of these conditions and situations may present serious impediments to, and can lead to loss of, learning or employment for students and employees seeking to access a recipient's education program or activity while at the same time managing health impacts of pregnancy or related conditions. The proposed definition would more fully implement Title IX by clarifying that Title IX covers discrimination based on medical conditions related to or caused by pregnancy, childbirth, termination of pregnancy, or lactation, even if they are not related to “recovery from pregnancy.”
Because the Department's Title IX regulations have provided important protections for students and applicants against discrimination in access to educational opportunities based on recovery from pregnancy, childbirth, and termination of pregnancy since they were first promulgated in 1975, the Department proposes clarifying that Title IX's scope of coverage includes discrimination based on recovery from related medical conditions as well.
The Department's proposed definition would remove the term “false pregnancy,” which appears in current §§ 106.40(b)(1), 106.40(b)(4) and (5), 106.51(b)(6), and 106.57(b) through (d). The Department's current view is that the meaning of this term is unclear in the contemporary context and could bear multiple interpretations, including a pregnancy that is suspected, but not confirmed; a pregnancy that is falsely confirmed; or another medical condition that is clinically similar to pregnancy. To eliminate confusion and uncertainty,
(1) A biological parent;
(2) An adoptive parent;
(3) A foster parent;
(4) A stepparent;
(5) A legal custodian or guardian;
(6) In loco parentis with respect to such a person; or
(7) Actively seeking legal custody, guardianship, visitation, or adoption of such a person.
• Revise the section heading to “Parental, family, or marital status; pregnancy or related conditions”;
• Reorganize the section by separating items that require or prohibit certain actions by recipients;
• Replace the term “disabilities related to pregnancy, childbirth, termination of pregnancy, or recovery therefrom” with “pregnancy or related conditions or any temporary disability resulting therefrom”;
• Clarify that the scope of coverage includes “past” parental, family, or marital status;
• Clarify that the scope of coverage includes “current, potential, or past pregnancy or related conditions”;
• Replace “rule” with “policy, practice, or procedure”;
• Replace “apply” with “adopt or apply”;
• Replace “actual” with “current”;
• Delete “exclude” and “excludes”; and
• Replace “A recipient may make pre-admission inquiry as to the sex of an applicant for admission, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquiry are not used in connection with discrimination prohibited by this part” with “A recipient may ask an applicant to self-identify their sex, but only if this question is asked of all applicants and if the response is not used as a basis for discrimination prohibited by this part.”
The proposed regulations also would clarify that covered actions include a recipient's policies, practices, and procedures. The purpose of this change would be to encompass a broader range of recipient actions that could be forms of sex discrimination based on parental, family, or marital status and to prevent circumvention by reliance on policies, practices, or procedures not reflected in the recipient's formal or informal rules. Likewise, the addition of “adopt” would indicate that a policy, practice, or procedure that is formally or informally decided upon would be subject to the proposed regulations, as well as those that are passed or otherwise announced formally but not yet applied in an individual case, and those that have been acted upon. For example, if a recipient announced a policy that student fathers, but not student mothers, could be admitted to a law enforcement training program, this policy would potentially violate proposed § 106.21(c)(2)(i) even if the recipient had not yet applied it to any student. Both changes mentioned in this paragraph would be consistent with changes proposed in a similar section related to parental, familial, and marital status at proposed § 106.40(a).
The Department proposes replacing the term “disabilities related to pregnancy, childbirth, termination of pregnancy, or recovery therefrom” with “pregnancy or related conditions or any temporary disability resulting therefrom” in proposed § 106.21(c)(1). “Disabilities related to pregnancy” could be interpreted to suggest that applicants would not be covered under the provision unless they had a disability under Section 504 or the ADA, something that could be difficult for a recipient or an applicant to ascertain during the admissions process. It also leaves unclear whether a pregnant student who is not experiencing any additional pregnancy-related conditions would be protected under the current regulations. The proposed change would clarify that an applicant who is pregnant or experiencing pregnancy-related conditions or a temporary disability resulting therefrom must be treated in the same manner and under the same policies as those who have other temporary disabilities or physical conditions, simplifying the analysis both for the recipient and applicants. The proposed change would also align with the language the Department suggests in proposed §§ 106.40(b)(5) and 106.57(c).
The Department proposes deleting “exclude” and “excludes” in proposed § 106.21(c)(2)(ii) because they are used only occasionally in the current regulations to refer to discrimination and such intermittent use may cause confusion. Throughout the current and proposed regulations, the Department interprets “discriminate” to encompass exclusion.
• Replacing “rule” with “policy, practice, or procedure”;
• Changing “apply” to “adopt or apply”; and
• Changing “actual or potential” to “current, potential, or past.”
Second, the proposed regulations would clarify that a recipient is not permitted to adopt policies, practices, or procedures that treat students differently on the basis of sex; current § 106.40(a) references only the application of such a rule. Use of the term “adopted” would indicate that the proposed regulations would cover a policy, practice, or procedure that is formally or informally decided upon; those that are passed or otherwise announced formally but not yet applied in an individual case; and those that have been acted upon. The proposed regulations would therefore cover policies, practices, and procedures without requiring an analysis of whether they had been applied to a student.
Finally, to clarify coverage and maintain consistency with a similar provision at proposed § 106.21(c) regarding admissions, the Department proposes replacing the terms “actual or potential” with the terms “current, potential, or past.” As explained in the discussion of proposed § 106.21(c), this revision would help ensure that students are more fully protected from discrimination, recognizing that a person can be subject to sex stereotypes due to past status as well as present status.
Current § 106.40(b)(3) states that a recipient that operates a portion of its education program or activity separately for pregnant students to which students may voluntarily admit themselves must ensure that the separate portion is comparable to that offered to non-pregnant students.
The Department proposes clarifying the scope of the nondiscrimination provision to cover current, potential, or past pregnancy or related conditions because protecting students from discrimination on these bases helps to achieve Title IX's objective of eradicating sex discrimination in federally funded education programs or activities. Title IX was enacted in large part because women were being denied educational access due to views that they were less capable and less committed to academic demands given their pregnancy and childrearing obligations.
Under the proposed regulations, only when a student informs an employee of the student's pregnancy would the employee be required to provide the student with information about how to notify the Title IX Coordinator. Similarly, only when a person who has a legal right to act on behalf of the student informs an employee of the student's pregnancy would the employee be required to provide that person information about accessing to the Title IX Coordinator. In either case, unless the employee reasonably believes the Title IX Coordinator has already been notified, the employee would be responsible for telling the person who contacted them only two things: (1) how the person may notify the Title IX Coordinator of the student's pregnancy or related conditions for assistance; and (2) contact information for the Title IX Coordinator. The Department expects that providing this information will be sufficient to inform the person of their option to contact the Title IX Coordinator as they see fit. The proposed regulations would also ensure that if a student or a person who has a legal right to act on behalf of the student preferred not to report the student's pregnancy to the Title IX Coordinator, the person would have no obligation to do so.
The Department intends the term “a person who has a legal right to act on behalf of the student” to be interpreted consistent with proposed § 106.6(g), which would not impose limitations on “any legal right of a parent, guardian, or other authorized legal representative to act on behalf of” a student, subject to the FERPA statute, 20 U.S.C. 1232g, or its implementing regulations, 34 CFR part 99. Although a recipient would need to make a fact-specific determination, for purposes of proposed § 106.40(b)(2), “a person who has a legal right to act on behalf of the student” would typically include the parents or legal guardians of minor students, legal guardians of adult students (for example, in the case of a student with significant disabilities), and authorized legal representatives of youth in out-of-home care. For example, under proposed § 106.40(b)(2), if the parent of a minor student informs a high school teacher of a student's pregnancy, the teacher would have to tell the parent how to notify the Title IX Coordinator and provide contact information. However, if the parent of an adult student in graduate school who does not have a legal right to act on behalf of the student contacted the student's advisor to inform the advisor of the student's pregnancy, the advisor would not be required to inform the parent of how to notify the Title IX Coordinator. The Department anticipates this approach would support the rights of parents of younger students while respecting the privacy interests of older students.
The Department is mindful of recipient resources and submits that the proposed regulations are appropriately tailored and straightforward to implement. For example, an employee would not be required to act under this provision when the employee only suspects that a student is pregnant based on observation of physical indicators or rumor, or when told by a third party who is not a person with a legal right to act on behalf of the student. The proposed regulations would not require a recipient's employees to inquire whether a student is pregnant based on physical indicators often associated with pregnancy.
The Department expects the proposed regulations would also be easily understood by employees because there is little ambiguity as to when they are required to act: if a student, or a person who has a legal right to act on behalf of the student, informs an employee that the student is pregnant or experiencing pregnancy-related conditions, the employee would have to provide the two pieces of basic information (how to notify the Title IX Coordinator and contact information for the Title IX Coordinator) to the student or the person who has a legal right to act on behalf of the student unless the employee knew or reasonably believed that the Title IX Coordinator was already informed. In addition, the provision would be helpful to students and their families because it would not require them to have any advance knowledge of a recipient's available supports or to invoke specific words or requests for the employee to be required to provide them with information about the Title IX Coordinator. The standard also would afford recipients flexibility based on a student's age and maturity level. Providing information as to how to notify the Title IX Coordinator would differ depending on the student's age and maturity level. Nothing would prohibit an employee from offering to go with a student to the Title IX Coordinator or, at the student's option, contacting the Title IX Coordinator on the student's behalf; however, this is likely more appropriate at the elementary school or secondary school level and may not be necessary for a college student. Overall, the Department's current view is that this provision would empower students and their families to decide whether they wish to obtain school-based supports at a potentially vulnerable time, thereby avoiding sex discrimination to the greatest extent possible.
(i) Inform the student, and if applicable the person who notified the Title IX Coordinator, of the recipient's obligations to: (A) prohibit sex discrimination, including sex-based harassment; (B) provide the student with the option of reasonable modifications to the recipient's policies, practices, or procedures because of pregnancy or related conditions; (C) allow access, on a voluntary basis, to any separate and comparable portion of the recipient's education program or activity; (D) allow a voluntary leave of absence; (E) ensure the availability of lactation space; and (F) maintain grievance procedures that provide for the prompt and equitable resolution of complaints of sex discrimination, including sex-based harassment;
(ii) Provide the student with the option of reasonable modifications to the recipient's policies, practices, or procedures, as described in proposed § 106.40(b)(4), because of pregnancy or related conditions;
(iii) Allow the student to take a voluntary leave of absence from the recipient's education program or activity to cover, at minimum, the period of time deemed medically necessary by the student's physician or other licensed healthcare provider. To the extent that a recipient maintains a leave policy for students that allows a greater period of time than the medically necessary period, the recipient must permit the student to take leave under that policy instead if the student so chooses. Upon the student's return to the recipient's education program or activity, the student must be reinstated to the academic status and, as practicable, extracurricular status held when the leave began; and
(iv) Ensure the availability of a lactation space, which must be a space other than a bathroom, that is clean, shielded from view, free from intrusion from others, and may be used by a student for expressing breast milk or breastfeeding as needed.
The Department's current view is that the proposed notice standard would aid students, their families and representatives, and recipients because it would clarify that the student and those with legal rights to act on behalf of the student are the appropriate persons for sharing information about a student's pregnancy or related conditions with the Title IX Coordinator. As explained in the discussion of the requirement for recipient to provide information in proposed § 106.40(b)(2), neither a student nor a person who has a legal right to act on behalf of the student would be obligated to disclose the student's pregnancy to the recipient. And, cognizant both of student privacy and recipient resources, the Title IX Coordinator would not be required to take the steps described in proposed § 106.40(b)(3) based only on observation of physical characteristics, rumors, or information from a third party who does not have a legal right to act on behalf of the student.
To increase clarity for recipients and students, proposed § 106.40(b)(3)(iii) would preserve the right of a student who is pregnant or experiencing related conditions to take a leave of absence from the recipient's education program or activity for at least a medically necessary period, and to be reinstated to the same academic and, as practicable, extracurricular status upon return. The Department proposes revisions to clarify that any leave of absence must be voluntary and that the medically necessary period is only a minimum requirement. A recipient would be free to provide additional time if requested by the student and appropriate to the situation. For example, if a student's medically necessary period concludes in the middle of a college semester, the student and recipient may both find it advantageous to extend the period of leave until the end of the semester. However, for a college student in a self-paced independent study course who takes a voluntary leave of absence because of the student's pregnancy or related conditions, that student and college may find it more helpful not to extend the period of leave in light of the flexibility of the independent study and the possibility that additional time off could put the student behind in the program. In addition, proposed § 106.40(b)(3)(iii) would clarify that to the extent a recipient maintains a leave policy for students that allows a greater period of time than the medically necessary period, the recipient must permit the student to take leave under that policy instead if the student chooses. As explained in greater detail in the Background discussion of the History of Title IX's Nondiscrimination Mandate and Related Regulations, a student's right to take leave for pregnancy or related conditions, regardless of whether the recipient offers leave to students generally for other types of purposes, has been included in the Title IX regulations since 1975 and is designed to help achieve Title IX's underlying objective of eliminating sex-based discrimination and barriers to equal access to education programs or activities.
The Department also proposes revising this requirement to state that the period of medical necessity may be determined either by a physician (as in the current regulations) or another licensed healthcare provider. This change would provide additional flexibility to students and recipients, and would take into account that some students may be under the care of a midwife, nurse practitioner, or other licensed healthcare provider who is not a physician.
The Department proposes revisions to clarify that a student must be reinstated to the same “academic and, as practicable, extracurricular” status upon return. OCR has long interpreted “same status upon return” under current § 106.40(b)(5) as referring to “academic and extracurricular” status.
A student who is lactating would typically need breaks every few hours of the school day to express breast milk or breastfeed and an appropriate, sanitary space in which to do so. Many school settings lack appropriate spaces for a student to engage in these activities with adequate privacy and cleanliness. Secondary school students may require such spaces if their daily schedules allow limited flexibility and would not ordinarily allow for leaving school grounds two to three times each day to express milk or breastfeed. Consequently, lactation space on school grounds is necessary to enable students who are lactating to access their classes and extracurricular activities. Likewise, although postsecondary students often have more flexible class schedules than secondary school students, these students also need lactation space on campus so that they can have equal access to their courses and other campus activities. For students who do not have housing on or near campus, this need is heightened. Lack of access to lactation space in any of these scenarios could cause the student to miss school, quit school, or be unable to express breast milk or breast feed and, as a result, experience potentially painful physical side effects that prevents the student from fully accessing and obtaining the benefits of the recipient's education program or activity.
Proposed § 106.40(b)(3)(iv) would set out the requirements for a recipient's lactation space, specifically that the recipient provide a place, other than a bathroom, that is clean, shielded from view, free from intrusion from others, and may be used by a student for expressing breast milk or breastfeeding. The Department anticipates that these requirements will provide the minimum acceptable standards for privacy, sanitation, and functionality necessary for students to attend to their lactation needs at school, be free from discrimination, and maintain equal access to the school's education program or and activity. The Department expects that a bathroom would not be appropriate because in most cases, the only option for the student would be to sit on a toilet while expressing breast milk, which would not be sanitary or acceptable for the purpose of producing nutrition for a child. Likewise, privacy is critical to ensure that lactating students do not have to expose themselves to classmates or strangers.
Nearly all recipients under Title IX are already required to provide a virtually identical physical space to certain employees under the FLSA. 29 U.S.C. 207(r)(1). The only additional component added under the Department's proposed regulations would be that the space be “clean.” Because most recipients already maintain janitorial services, the Department anticipates that the additional burden of cleaning a lactation space would not be significant.
Proposed § 106.40(b)(3)(iv) would set minimum standards for a recipient's student lactation space. The proposed regulations would not prohibit a recipient from using an employee lactation space for students as well, provided the space meets the requirements of proposed § 106.40(b)(3)(iv). Likewise, there would be no prohibition on a recipient from offering additional features in their lactation spaces to increase functionality and comfort. With respect to the location of the lactation space, if necessary to address individualized concerns about distance from the student's class or activity, the recipient may provide an alternative space or solution consistent with the student's needs as a reasonable modification to prevent discrimination and ensure equal access based on pregnancy or related conditions under proposed § 106.40(b)(3)(ii) and (4).
Finally, nothing in the Department's proposed regulations would preempt a State or local law that provides greater protections to students, as explained in the discussion of proposed § 106.6(b). This would ensure that if a State or local law goes further than the Department's proposed regulations, for example by requiring more features in the lactation space (such as refrigeration, an outlet, a table, etc.), the Department's proposed regulations would not interfere with those enhanced requirements.
(i) Must be provided on an individualized and voluntary basis depending on the student's needs resulting from pregnancy or related conditions when necessary to prevent discrimination and ensure equal access to the recipient's education program or activity, unless the recipient can demonstrate that making the modification would fundamentally alter the recipient's education program or activity, when a “fundamental alteration” would be a change that is so significant that it alters the essential nature of the recipient's education program or activity;
(ii) Must be effectively implemented, coordinated, and documented by the Title IX Coordinator; and
(iii) May include but are not limited to, breaks during class to attend to related health needs, breastfeeding, or expressing breast milk; intermittent absences to attend medical appointments; access to online or other homebound education; changes in schedule or course sequence; extension of time for coursework and rescheduling of tests and examinations; counseling; changes in physical space or supplies (for example, access to a larger desk or a footrest); elevator access; or other appropriate changes to policies, practices, or procedures.
As noted in the discussion of the 1975 Title IX Regulations Related to Pregnancy and Parental Status (Section III.A), the Department's Title IX regulations require a recipient to take a variety of steps to ensure equal treatment and access for students who are pregnant or experiencing pregnancy-related conditions. Current § 106.40(b)(1) prohibits discrimination based on pregnancy or related conditions. Current § 106.40(b)(4) requires a recipient to treat pregnancy or related conditions similarly to other temporary disabilities with respect to, inter alia, medical or hospital benefits. And current § 106.40(b)(5) requires a recipient to take specific, tailored steps necessary to support students who are pregnant or experiencing pregnancy-related conditions to enable them to access its education program or activity—regardless of whether the recipient takes similar steps for all students. The Department now believes that the current regulations may not sufficiently achieve the objectives of Title IX. For example, some recipients do not maintain policies related to temporary disabilities of students, leaving their responsibilities to pregnant students under current § 106.40(b)(4) unclear. Likewise, the wording of current § 106.40(b)(4) may suggest that a recipient's responsibility extends only to “medical or hospital” benefits, services, plans or policies—for example, student health insurance plans—rather than requiring day-to-day modifications of the education program or activity that would be necessary to prevent discrimination and ensure equal access for pregnant students and students who are experiencing pregnancy-related conditions in a modern context.
The Department anticipates that recipients would benefit from increased clarity as to what proactive steps they must take to prevent intentional or inadvertent discrimination under Title IX. Measures designed to eliminate subtle and even unconscious forms of discrimination are particularly useful to ensure that students who are pregnant or experiencing pregnancy-related conditions have access to the recipient's education program or activity. It is the Department's current view that the proposed regulations provide clear and functional requirements for recipients to ensure that pregnant students and students experiencing pregnancy-related conditions are not discriminated against, and that these requirements are necessary to protect the rights of these students and help effectuate Title IX's nondiscrimination goal.
Recognizing the varied language used in different laws, regulations, and guidance, the Department proposes the reasonable modifications framework set out in proposed § 106.40(b)(4) as the appropriate framework to achieve Title IX's nondiscrimination objective in the educational context. The Department notes that this is similar to the framework under Title II of the ADA for determining necessary different treatment to meet the disability-related needs of a qualified individual with a disability. Specifically, under Title II, a public entity must reasonably modify its policies, practices, or procedures to avoid discrimination unless the modifications would fundamentally alter the nature of its service, program, or activity. 28 CFR 35.130(b)(7). Although a pregnancy would not be in and of itself a disability under Title II, the reasonable modification framework of Title II applies to disabilities related to pregnancy, as well as all other disabilities. 28 CFR part 35, app. C (citing 2015 EEOC Pregnancy Guidance). It is the Department's current view that this framework would achieve Title IX's nondiscrimination mandate and account for both student and recipient needs. For example, it would require a recipient to act when necessary to prevent sex discrimination but would allow flexibility for the recipient to choose from among a range of options appropriate to the student's individualized needs under the circumstances. This approach would also invite collaboration between the student and the recipient to determine appropriate reasonable modifications in a situation as the recipient seeks to determine what is needed. As the recipient prevents discriminatory barriers in its education program or activity through the provision of reasonable modifications because of pregnancy or related conditions, over time, this process would benefit not only the students who receive reasonable modifications, but also subsequent students who may be in need of modifications as the recipient becomes more efficient and effective at providing them. The Department expects that this framework not only will be most effective in ensuring against sex discrimination as required by Title IX but also will be familiar to most schools and thus, would be relatively straightforward to adopt and implement in order to prevent discrimination and ensure equal access for students who are pregnant or experiencing related conditions. Moreover, Title II's treatment of pregnancy-related conditions informs the Department's understanding of what constitutes discrimination against students with those conditions.
The fundamental alteration standard would not compromise the integrity of a recipient's education program or activity. Proposed § 106.40(b)(4)(i) would clarify that a fundamental alteration is a change so significant that it alters the essential nature of the recipient's education program or activity. Determining whether a change constitutes a fundamental alteration would necessarily be fact-specific. Proposed § 106.40(b)(4)(i) provides that it would be the recipient's burden to demonstrate that a proposed modification would fundamentally alter its education program or activity. To the extent a recipient determines that a requested modification would require a fundamental alteration under the proposed regulations, it would have to provide other modifications that would not result in a fundamental alteration but would nevertheless ensure that, to the maximum extent possible, the student who made the request is not discriminated against and receives equal access to the recipient's education program or activity. The recipient would also be required to document those efforts as part of the requirement under proposed § 106.40(b)(4)(ii) that the Title IX Coordinator effectively implement, coordinate, and document reasonable modifications for students because of pregnancy and related conditions, and retain such records under proposed § 106.8(f)(4).
For example, if a student were to request intermittent absences to attend morning prenatal medical appointments and the opportunity to make up lost class time without penalty within a reasonable amount of time, that could be an appropriate reasonable modification for a pregnant student even if the recipient had not provided similar breaks to any other student (for example, because none had requested or needed them), as long as this arrangement was appropriate to the pregnant student's individualized need and did not require a fundamental alteration of the recipient's education program or activity. Likewise, if the recipient felt it could prevent discrimination through some alternative modification, such as offering the student the opportunity to switch to a comparable course that met in the afternoon, that could be reasonable as well.
Alternatively, depending on the facts and circumstances, if a student requested that her school waive her entire senior year and allow her to graduate without those credits as a reasonable modification because of pregnancy, this would likely present a fundamental alteration of the recipient's program under this section. In this case, the recipient would be obligated to offer alternative modifications sufficient to prevent sex discrimination, such as allowing the student to complete her required number of credits at a slower pace or granting her extensions of time to complete certain tests or assignments. The proposed regulations would include several additional examples of potential reasonable modifications because of pregnancy or related conditions to inform both students and recipients of their broad range of options.
For example, under the current regulations, it would be difficult, or even impossible, for a student who is pregnant or experiencing pregnancy-related conditions to know whether an ability-certification requirement was being applied to the student appropriately because that student would not necessarily know whether or which other students had been asked for the same certification, especially in light of the privacy protections applicable to the health conditions of other students. The current regulations also may lead to different treatment of pregnant students from students who are not pregnant and do not have pregnancy-related conditions because they allow recipients to single out pregnant students, and students with “physical and emotional conditions,” for ability-certification requirements. In addition, the current regulations lack any requirement that the certified level of physical ability or health be necessary to the activity for which a recipient seeks medical certification prior to permitting participation by a student who is pregnant or experiencing pregnancy-related conditions.
To address these concerns and to prevent and minimize the possibility of sex-based discrimination, the Department proposes clarifying that a recipient may not require a student who is pregnant or experiencing pregnancy-related conditions to provide a certification of physical ability or health unless (i) a certain level of physical ability or health is necessary for participation in a specific class, program, or extracurricular activity; (ii) it requires such certification of all students in the same class, program, or extracurricular activity; and (iii) the information obtained is not used as a basis for sex discrimination. The Department proposes allowing certification from licensed healthcare providers in addition to physicians to allow greater flexibility and decrease burden to students being treated by these providers. Finally, the Department also proposes deleting “emotionally” from current § 106.40(b)(2), as it is unnecessary and suggests a stereotypical assumption regarding the mental health of students who are pregnant or recovering from childbirth. With these changes, the Department aims to ensure that pregnant students and students who are experiencing pregnancy-related conditions would not face different burdens than other students regarding certification to participate in the recipient's education program or activity.
In proposing these revisions, the Department notes several points. First, nothing in proposed § 106.40(b)(6) would bear in any way on the rights of a student experiencing, for example, postpartum depression. That student would be protected from discrimination based on pregnancy or related conditions under proposed § 106.40(b)(1), particularly considering the clarified definition of “pregnancy or related conditions” at proposed § 106.2, which would extend to medical conditions related to pregnancy. The recipient would also be required to provide the student reasonable modifications, leave, and the other steps set out in proposed § 106.40(b)(3). Likewise, nothing in proposed § 106.40(b)(6) would limit a student's rights or a recipient's obligations under Section 504, which prohibits discrimination on the basis of disability, whether physical or mental in nature. Depending on the nature of the impairment, the student would also likely qualify for protection as a person with a disability under Section 504. To the extent a recipient has a specific concern about the mental health of a student who is pregnant or experiencing pregnancy-related conditions, the proposed provision would not preclude the recipient from making an inquiry, provided that such inquiry did not subject the student to discrimination on the basis of sex or disability.
Second, proposed § 106.40(b)(6) would pertain only to limited situations in which physical ability or health is necessary for a specific class, program, or extracurricular activity. Examples when this situation might arise include school sports, a vocational course (
Third, a recipient may not forbid participation as a general matter by students who are pregnant or experiencing pregnancy-related conditions. For example, if a high school requires certification of physical ability or health from all students who wish to join its track team, it may require that certification from a pregnant student. The school may not, however, require that a student certify prior to participation that the student is not pregnant or require only pregnant students to provide a certification of physical ability or health. Likewise, a recipient would be prohibited under proposed § 106.40(b)(6)(iii) from using any information obtained through its request for certification of physical ability or health to discriminate based on sex.
Fourth, a recipient's default assumption should be that a student who is pregnant or experiencing pregnancy-related conditions may participate, unless there is a specific, documented medical reason tied to the physical ability or health requirements of the class, program, or extracurricular activity that cannot be overcome with reasonable modifications for a student who is pregnant or experiencing pregnancy-related conditions under proposed § 106.40(b)(4). If reasonable modifications because of a student's pregnancy or related conditions would prevent discrimination by ensuring participation, the recipient must provide these modifications and allow participation.
Finally, this provision would not be intended to address how or when a
• Changing the heading of § 106.57(a) from “General” to “Status generally”;
• Changing “apply” to “adopt or apply” in proposed § 106.57(a); and
• Changing “potential” to “current, potential, or past” in proposed § 106.57(a)(1).
• Changing the heading of § 106.57(b) from “Pregnancy” to “Pregnancy or related conditions”; and
• Replacing “pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom” with “current, potential, or past pregnancy or related conditions.”
• Changing the heading from “Pregnancy as temporary disability” to “Comparable treatment to temporary disabilities or conditions”; and
• Replacing “pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom and” with “pregnancy or related conditions or.”
• Replacing “pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom” with “pregnancy or related conditions”;
• Revising “leave of absence” to “voluntary leave of absence”; and
• Replacing “the status which she held” with “the status held.”
For employees in the education sector, lactation needs may present different challenges depending on the nature of the employment. Employees, particularly in elementary schools and secondary schools, may lack an appropriate place to express breast milk and instead resort to expressing milk in an unsanitary environment, such as a restroom stall, a supply closet, or even a car. If appropriate space is not provided, these employees may have little choice but to attend to their lactation needs in a space that is open and, in doing so, risk exposing themselves to colleagues and students. Or these employees may be denied the reasonable break time necessary to express milk, leading to painful health complications. If an employee is unable to access appropriate time and space for lactation, the employee may have no choice but to leave their employment in order to continue to care for their child's nutritional needs in the way the employee thinks best. To prevent subtle forms of sex discrimination and ensure equal access regardless of sex, the Department would require that a recipient: (1) provide reasonable break time for an employee to express breast milk or breastfeed as needed; and (2) ensure the availability of a lactation space, which must be a space other than a bathroom that is clean, shielded from view, free from intrusion from others, and may be used by an employee for expressing breast milk or breastfeeding as needed.
Overall, it is the Department's current view that requiring a recipient to provide its employees with reasonable break time and space for lactation would prevent discrimination and address sex-based barriers to equal access in employment by allowing
The Department further notes that nothing in proposed § 106.57(e)(1) or (2) would preempt State or local laws that do not conflict with Title IX and may afford greater protection to employees regarding lactation time and space, as explained in greater detail in the discussion of proposed § 106.6(b).
The statute does not explicitly reference distinct forms of sex discrimination, such as discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, or gender identity, or discrimination taking the form of sex-based harassment. Although it does not address these specific applications, the Supreme Court made clear in 1982 that “if we are to give Title IX the scope that its origins dictate, we must accord it a sweep as broad as its language.”
The Department's Title IX regulations have long included provisions explaining Title IX's coverage of discrimination based on pregnancy or related conditions and sex stereotypes.
OCR first issued guidance on Title IX's application to sexual orientation discrimination and the rights of gay and lesbian students in its 1997 Sexual Harassment Guidance, which stated: “Although Title IX does not prohibit discrimination on the basis of sexual orientation, sexual harassment directed at gay or lesbian students may constitute
Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination. When students are subjected to harassment on the basis of their LGBT status, they may also . . . be subjected to forms of sex discrimination prohibited under Title IX. The fact that the harassment includes anti‐LGBT comments or is partly based on the target's actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender‐based harassment.
In July 2013, the Federal government resolved its first administrative enforcement case finding compliance concerns under Title IX regarding a school's denial of a transgender student's access to sex-separate facilities and accommodations during an overnight school trip. In their resolution letter, OCR and the Civil Rights Division of the U.S. Department of Justice (DOJ) emphasized the district's failure to contemplate any reasonable alternative arrangements that would have been less burdensome on the student. OCR Case No. 09-12-1020,
In 2014, OCR issued two more guidance documents that further clarified Title IX's coverage of gender identity discrimination. In April 2014, OCR issued the 2014 Q&A on Sexual Violence, which stated for the first time in a guidance document that Title IX's prohibition on sex discrimination extends to claims of discrimination based on gender identity. 2014 Q&A on Sexual Violence at 5. Then in December 2014, OCR issued a Question-and-Answer document on single-sex classes and extracurricular activities, which stated that “[u]nder Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.” U.S. Dep't of Educ., Office for Civil Rights, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities at 25 (Dec. 1, 2014) (2014 Q&A on Single-Sex Elementary and Secondary Classes and Activities),
In May 2016, OCR and DOJ's Civil Rights Division issued a joint Dear Colleague Letter addressing the rights of transgender students under Title IX, stating that “the Departments treat a student's gender identity as the student's sex for purposes of Title IX and its implementing regulations.” 2016 Dear Colleague Letter on Title IX and Transgender Students at 2. The 2016 Dear Colleague Letter then explained that “[t]his means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”
In August 2016, a Federal district court issued an order finding that the interpretation set out in the 2016 Dear Colleague Letter on Title IX and Transgender Students was contrary to law and should not have been issued without undergoing the notice-and-comment process required by the Administrative Procedure Act and granted a nationwide preliminary injunction barring OCR and DOJ from relying on the 2016 Dear Colleague Letter on Title IX and Transgender Students in their enforcement of Title IX.
In February 2017, DOJ and OCR issued a letter withdrawing the statements of policy and guidance reflected in the 2016 Dear Colleague Letter on Title IX and Transgender Students “in order to further and more completely consider the legal issues involved.” U.S. Dep't of Justice and U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague Letter on Transgender Students at 1 (Feb. 22, 2017) (2017 Dear Colleague Letter on Transgender Students),
When the Department amended the Title IX regulations in May 2020, it declined to address Title IX's coverage of discrimination on the basis of gender identity or sexual orientation, but noted in the preamble to the 2020 amendments that the most recent position of the United States in then-pending Supreme Court cases was “(1) that the ordinary public meaning of `sex' at the time of Title VII's passage was biological sex and thus the appropriate construction of the word `sex' does not extend to a person's sexual orientation or transgender status, and (2) that discrimination based on transgender status does not constitute sex stereotyping but a transgender plaintiff may use sex stereotyping as evidence to prove a sex discrimination claim if members of one sex (
Subsequently in June 2020, the Supreme Court held in
On the same day, OCR issued a revised Letter of Impending Enforcement Action in its investigation of the Connecticut Interscholastic Athletic Conference (CIAC) and six school districts, in which it denied that
In January 2021, the Department posted a memorandum signed by the Principal Deputy General Counsel in its Office of the General Counsel, which commented on
In 2021, OCR archived the Rubinstein Memorandum and marked it “not for reliance,” citing its inconsistency with Executive Order 13988 (describing
As summarized above, the Department has at times articulated a narrower interpretation of the scope of Title IX's prohibition on sex discrimination. For example, the Department previously stated that Title IX does not fully encompass discrimination on the basis of sexual orientation or gender identity.
The Department now believes that its prior position (
Title IX and its implementing regulations do not use the term “on the basis of sex” in a restrictive way. For example, consistent with judicial interpretations, OCR has long recognized that Title IX prohibits sexual harassment and discrimination based on sex stereotypes. The specific forms of sex discrimination that the Department proposes to add to the express prohibitions in § 106.10 do not depend on resolving the question of whether the term “sex” is limited to physiological or “biological” characteristics. As noted, in certain documents in August 2020 and January 2021, the Department indicated that Title IX's scope should be limited to discrimination rooted in “biological sex,” but as
The Supreme Court in
The Department does not intend that the specific categories of discrimination listed in proposed § 106.10 would be exhaustive, as evidenced by the use of the word “includes.” Title IX's broad prohibition on discrimination “on the basis of sex” under a recipient's education program or activity encompasses, at a minimum, discrimination against an individual because, for example, they are or are perceived to be male, female, or nonbinary; transgender or cisgender; intersex; currently or previously pregnant; lesbian, gay, bisexual, queer, heterosexual, or asexual; or gender-conforming or gender-nonconforming. All such classifications depend, at least in part, on consideration of a person's sex. The Department therefore proposes to clarify in this section that, consistent with
Discrimination based on intersex traits is rooted in perceived differences between an individual's specific sex characteristics and those that are considered typical for their sex assigned at birth. As discussed above, discrimination based on anatomical or physiological sex characteristics (such as genitals, gonads, chromosomes, and hormone function) is inherently sex-based. Thus, intersex traits are “inextricably bound up with” sex.
Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee's sex, and the affected employee's sex is a but-for cause of his discharge.
Title IX's prohibition on discrimination on the basis of sex stereotypes is also embedded in the current regulations and OCR's historical guidance documents.
In sum, the Department proposes to clarify Title IX's scope in proposed § 106.10 to more closely align with Title IX's text, purpose, and principles articulated in Federal case law and to more effectively protect people from all forms of sex discrimination under federally funded education programs and activities.
Proposed § 106.31(a)(2) would clarify that in the discrete circumstances when Title IX or the regulations permits a recipient to separate or treat persons differently on the basis of sex, a recipient must not do so in a manner that discriminates on the basis of sex by subjecting a person to more than de minimis harm unless otherwise permitted by Title IX or the regulations.
When a recipient separates girls and boys, or women and men, or applies different rules to them, it treats such persons “on the basis of [sex].” This understanding of sex-based different treatment does not depend on any particular definition of the term “sex.” A recipient's action is based on sex, for example, if it relies upon “biological distinctions between male and female.”
Since 1975, the Department's regulations have specified that such separate or differential treatment on the basis of sex is presumptively a form of prohibited sex discrimination.
Nevertheless, the Department has never treated all distinctions based on sex as impermissible discrimination. The Department's regulations have recognized limited contexts in which recipients are permitted to employ sex-specific rules or to separate students on the basis of sex because the Department has determined that in those contexts such treatment does
Although the Department has the authority to interpret the statute and promulgate regulations, its regulations must not contradict the express provisions of the statute. Rather, those regulatory provisions are premised on the understanding that in certain situations, the fact that a recipient employs a sex-based distinction or separation does not, as such, amount to “discrimination” that Title IX forbids in the first place. In particular, to the extent separation or different treatment based on sex imposes no harm or only de minimis harm, it will not amount to discrimination on the basis of sex under Title IX.
There may be, however, circumstances in which even generally permissible sex-based treatment would cause more than de minimis harm to protected individuals. Proposed § 106.31(a)(2) would clarify that in these circumstances, the harmful treatment would be discriminatory and therefore prohibited by Title IX, unless otherwise permitted by the statute or regulations.
Such harm may result, for example, if the sex separation or differential treatment is based upon, and thus perpetuates, “overbroad generalizations about the different talents, capacities, or preferences” of the sexes,
In addition, prohibited harm may result when a recipient applies a generally permissible sex-based policy, or makes an otherwise permissible sex-based distinction, in a manner that discriminates against one or more protected individuals by subjecting them to more than de minimis harm on the basis of sex. In these situations, even when a recipient's sex-specific treatment or separation does not materially harm
In particular, courts have recognized that a recipient subjects students to such harm when it bars them from accessing otherwise permissible sex-separate facilities or activities consistent with their gender identity.
For these reasons, proposed § 106.31(a)(2) would make clear that preventing any person from participating in an education program or activity consistent with their gender identity would subject them to more than de minimis harm on the basis of sex and therefore be prohibited, unless otherwise permitted by Title IX or the regulations.
Some members of the public have urged the Department that Title IX does not prohibit harms that result when a student is separated or treated differently based on sex in a way that is inconsistent with their gender identity. These members of the public have argued that preventing transgender students from accessing sex-separate spaces and programs consistent with their gender identity will serve to protect other students from harms to their safety, privacy, and comfort. The Department recognizes schools' legitimate interest in protecting the safety and privacy of all students. Yet schools can and do protect those interests without also causing harm to other students by excluding them from sex-separate spaces and programs.
Proposed § 106.31(a)(2) would also recognize that, despite Title IX's general prohibition on sex discrimination against an individual, there are circumscribed situations in which Title IX or the regulations permit a recipient to separate students on the basis of sex, even where doing so may cause some students more than de minimis harm. For example, 20 U.S.C. 1681 specifically exempts certain sex-specific practices of certain designated entities from coverage by Title IX's antidiscrimination mandate.
The Department's current view is thus that regardless of whether some students might experience more than de minimis harm if excluded from a particular sex-separate living facility on the basis of sex, Congress has nonetheless permitted that exclusion. Congress's choice to specify limited circumstances where harm resulting from sex separation is permitted illustrates that, outside of those contexts, Title IX's general prohibition on sex discrimination prohibits such harm.
Moreover, 20 U.S.C. 1686 itself affects only one aspect of Title IX's nondiscrimination mandate, even within the context of “living facilities.” Schools may maintain “separate living facilities for the different sexes.” 20 U.S.C. 1686. The Department's regulations, however, have long provided that housing offered for students of one sex must “as a whole” be “[c]omparable in quality and cost” to the housing offered to students of the other sex. 34 CFR 106.32(b)(2)(ii). The Supreme Court's observation that Title IX's protection against discrimination must be construed broadly reinforces that view.
The Department also recognizes that exclusion from a particular male or female athletics team may cause some students more than de minimis harm, and yet that possibility is allowed under current § 106.41(b). The Department's authority to permit such different treatment in the context of athletics is described in the discussion of § 106.41.
In addition, the regulations also specify circumstances in which a recipient may not afford students of one sex preferential benefits or treatment that it denies to students of the other sex—another form of prohibited sex discrimination.
The Department has previously articulated inconsistent interpretations with respect to how a recipient must treat a student's gender identity when the recipient is otherwise permitted to separate or treat students differently on the basis of sex. Between 2013 and 2016, the Department investigated and resolved complaints to address noncompliance with Title IX regarding schools' denial of transgender students' access to education programs or activities consistent with their gender identity and issued policy guidance explaining how Title IX bars gender identity discrimination.
In 2017, however, the Department withdrew the 2016 Dear Colleague Letter on Title IX and Transgender Students to “further and more completely consider the legal issues involved.”
In the June 2021 Title IX Public Hearing, in listening sessions, and during meetings held under Executive Order 12866 in 2022, stakeholders urged the Department to clarify that Title IX's prohibition on sex discrimination includes discrimination based on gender identity following the Supreme Court's ruling in
The Department has reevaluated its approach to Title IX's application to discrimination based on gender identity after reviewing and considering the scope of Title IX's nondiscrimination mandate, interpretations of Federal courts, public feedback, and the standards OCR has long applied to evaluate compliance with current § 106.41. The Department's further review confirms that the interpretations articulated in statements such as the Rubinstein Memorandum and Revised CIAC Letter are inconsistent with the text and purpose of the Title IX statute and regulations.
Contrary to assertions made in 2020 and January 2021, the Department does not have a “long-standing construction” of the term “sex” in Title IX to mean “biological sex.” The text of the statute and current regulations do not resolve this issue; neither the statute nor the regulations define “sex,” purport to restrict the scope of sex discrimination to biological considerations, or even use the term “biological.” The Department does not construe the term “sex” to necessarily be limited to a single component of an individual's anatomy or physiology. Further, the Department need not define “sex,” as explained in more detail above in the discussion of proposed § 106.10. Just as the Supreme Court in
Despite the general principle that differential treatment or separation based on sex presumptively results in prohibited sex-based discrimination, Congress has authorized the Department to approach athletics in a distinct manner. In 1974, responding to concerns that Title IX would disrupt intercollegiate athletics, Congress enacted the Javits Amendment as part of the Education Amendments of 1974 to specifically authorize the Department to promulgate reasonable regulations in the context of athletics in light of “the nature of particular sports.” Education Amendments of 1974, Public Law 93-380, 844, 88 Stat. 484, 612 (1974). The Javits Amendment states:
The [HEW] Secretary shall prepare and publish, not later than 30 days after the date of enactment of this Act, proposed regulations implementing the provisions of title IX of the Education Amendments of 1972 relating to the prohibition of sex discrimination in federally assisted education programs which shall include with respect to intercollegiate athletic activities reasonable provisions considering the nature of particular sports.
The 1975 athletics regulation, still in effect today, provides that when selection for athletic teams is based upon competitive skill or the activity involved is a contact sport, a recipient may offer teams either separately by sex or on a coeducational basis. The Department made clear that, in some instances, individual students may be denied access to particular teams as a result of such decisions, so long as “equal opportunity” is ensured across “the totality of the athletic program of the institution rather than each sport offered.” 40 FR 52656. As one court explained, the regulations grant some “flexibility to the recipient of federal funds to organize its athletic program as it wishes, so long as the goal of equal athletic opportunity is met.”
Thus, the Education Amendments of 1974 established that, as to intercollegiate athletics, Congress contemplated that the Department might promulgate regulations that permit sex separation in contexts and in a manner that Title IX might otherwise prohibit, as long as such regulations are “reasonable” and result in overall equality in athletic opportunities for the sexes. Congress's effective approval of the 1975 HEW regulation reflects a further legislative understanding that, even apart from the intercollegiate setting, the Department's regulations could allow recipients to adopt rules for male and female teams that may result in a denial of participation for individual students. These developments embody a longstanding congressional view that athletics presents unique considerations, and that therefore the Department may promulgate regulations to account for those considerations in ways that may sometimes deprive individual students, based on sex, of opportunities to fully participate on particular athletic teams, as long as the regulations are otherwise reasonable and require a recipient to provide equal athletics opportunities in its program as a whole.
Consistent with Title IX and with Congress's decision to afford the Secretary special discretion to promulgate regulations in the unique context of athletics, the Department will consider, in a separate notice of proposed rulemaking, amendments to § 106.41 to address whether and how the Department should amend § 106.41 in the context of sex-separate athletics, pursuant to the special authority Congress has conferred upon the Secretary to promulgate reasonable regulations with respect to the unique circumstances of particular sports, including what criteria, if any, recipients should be permitted to use to establish students' eligibility to participate on a particular male or female athletics team.
The current regulations do not include a definition of “peer retaliation,” or use the term “peer retaliation,” however, current § 106.71(a) prohibits a “recipient or other person” from retaliating against “any individual.”
The proposed definition would encompass both retaliation by the recipient, including through its employees or others who are authorized by the recipient to provide aid, benefit, or service under the recipient's education program or activity, and retaliation by students against other students. For clarity, the Department proposes defining the term “peer retaliation” separately in proposed § 106.2.
The proposed definition would further clarify that these actions would constitute retaliation if they are taken for the purpose of interfering with any right or privilege secured by Title IX or the Department's Title IX regulations, or
The Department did not propose amending the Title IX regulations to address retaliation more specifically in the 2018 NPRM. However, in response to the 2018 NPRM, the Department received comments regarding the prevalence of retaliation in the context of complaints of sexual harassment. These comments stated that the existing protections against retaliation were inadequate to protect participants in a recipient's grievance procedures, and commenters urged the Department to adopt an explicit prohibition on retaliation in its regulations implementing Title IX. In response, the Department codified current § 106.71 as part of the 2020 amendments to explicitly prohibit retaliation, 85 FR 30535-38, and moved the incorporation of the remaining Title VI procedural protections to current § 106.81. The Department explained in the preamble to the 2020 amendments that it added the explicit prohibition on retaliation because otherwise “reporting may be chilled.”
The Department now proposes separating the prohibition on retaliation in current § 106.71(a) into three distinct but related provisions: a definition of “retaliation” in proposed § 106.2, a definition of “peer retaliation” in proposed § 106.2, and a prohibition on retaliation in proposed § 106.71. The Department proposes this revision to enhance clarity for recipients regarding their obligations related to retaliation under Title IX, which may differ from their obligations under other Federal statutes that also prohibit retaliation.
Substantively, the proposed definitions of “retaliation” and “peer retaliation” in proposed § 106.2 would encompass the same conduct as current § 106.71(a), but would clarify that such conduct is retaliatory when undertaken against a student, employee, or third party participating or attempting to participate in the recipient's program or activity by a student, employee, or person authorized by the recipient to provide aid, benefit, or service under the recipient's education program or activity. This clarification would align with the Department's proposed definitions of “complainant” and “sex-based harassment” in § 106.2, which also refer to students, employees, or persons authorized by the recipient to provide aid, benefit, or service under the recipient's education program or activity, or third persons participating or attempting to participate in a recipient's education program or activity.
In its proposed definitions of “retaliation” and “peer retaliation” in § 106.2, the Department would maintain the requirement in current § 106.71(a) that conduct that meets the definition of “retaliation” is undertaken for the purpose of interfering with a right or privilege under Title IX or because someone participated or refused to participate in an investigation, proceeding, or hearing under Title IX. Participating or refusing to participate in a Title IX investigation, proceeding, or hearing includes an informal resolution process under proposed § 106.44(k), grievance procedures under proposed § 106.45, and if applicable proposed § 106.46, and any other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur within the recipient's education program or activity under proposed § 106.44(f)(6). The Department proposes these changes after considering comments received during the June 2021 Title IX Public Hearing and feedback received from stakeholders during listening sessions that additional protections from retaliation for those participating in grievance procedures are necessary to ensure full protection from prohibited retaliation. The Department does not intend, by specifying the proceedings just described, to exclude other Title IX processes in the current or proposed regulations.
Current § 106.71(b) clarifies that two specific circumstances do not constitute retaliation: the exercise of rights protected under the First Amendment and charging an individual with a code of conduct violation for making a materially false statement in bad faith during a Title IX grievance proceeding. With respect to the latter circumstance, current § 106.71(b)(2) clarifies that a determination of responsibility alone is not sufficient to conclude that any party made a materially false statement in bad faith.
Proposed § 106.71 would specify the recipient's obligation to prohibit and address retaliation. Proposed § 106.71 states that when a recipient receives information about possible retaliation, it would have to comply with proposed § 106.44, and when a recipient receives a complaint alleging retaliation, it would have to initiate its grievance procedures under proposed § 106.45. When a complaint of retaliation is consolidated under proposed § 106.45(e) with a complaint of sex-based harassment involving a student complainant or student respondent at a postsecondary institution, the Department proposes that the grievance procedures for investigating and resolving the consolidated complaint would have to comply with the requirements of proposed §§ 106.45 and 106.46.
Proposed § 106.71 would identify two examples of prohibited retaliation. Proposed § 106.71(a) would prohibit a recipient from initiating its disciplinary process against a person for a code of conduct violation that does not involve sex discrimination but arises out of the same facts and circumstances as a complaint or information reported about possible sex discrimination, for the purpose of interfering with the person's exercise of their Title IX rights. The Department proposes removing the references to “intimidation, threats, coercion, or discrimination” in current § 106.71(a) because they are duplicative of the definition of “retaliation” in proposed § 106.2, and proposes replacing “charges” in current § 106.71(a) with “initiating a disciplinary process” in proposed § 106.71(a). The Department also proposes identifying peer retaliation in proposed § 106.71(b) as a form of retaliation a recipient would have to prohibit and address. The Department also proposes limited changes to current § 106.71(a) for consistency and clarity in proposed § 106.71(a).
Finally, the Department proposes changing “individual” to “person” throughout proposed § 106.71 for consistency throughout this section. This change also would better align this section with other sections of the proposed regulations and the Title IX statute, all of which use “person.”
As explained in greater detail in the discussion of the proposed definitions of “retaliation” and “peer retaliation” (proposed § 106.2), the Department has consistently prohibited retaliation against any person for the purpose of interfering with a right or privilege under Title IX or for participating or refusing to participate in a recipient's Title IX processes, including its grievance procedures. Prior to the 2020 amendments, the Department prohibited retaliation by incorporating the prohibition on retaliation from the procedural protections in § 100.7(e) of the Department's Title VI regulations. As part of the 2020 amendments, the Department revised § 106.71 to expressly prohibit retaliation. The Title IX regulations have always extended the prohibition on retaliation to all participants in a recipient's Title IX processes, including complainants, respondents, witnesses, and others participating in these processes, regardless of whether the participant provided information or otherwise participated in the process in support of the complainant, respondent, or the recipient.
The Department notes that in
Proposed § 106.71 would require a recipient to prohibit retaliation, set out a recipient's required response to prohibited retaliation, and identify two examples of common retaliatory conduct. The Department proposes revising § 106.71 to provide clarity regarding a recipient's obligations to prohibit and respond to retaliation, in response to concerns from stakeholders raised with OCR during the June 2021 Title IX Public Hearing and in listening sessions, that additional protections from retaliation for participants in Title IX grievance procedures are necessary to ensure full protection from prohibited retaliation.
Under proposed § 106.71, all complaints alleging retaliation as defined in proposed § 106.2, including complaints alleging retaliation that arise from the same facts or circumstances as a complaint or information reported about possible sex discrimination, would require the recipient to initiate its grievance procedures under proposed § 106.45. It bears noting that although retaliation may arise in connection with sex-based harassment and some instances of retaliation may also constitute sex-based harassment, retaliatory conduct is not necessarily conduct that would constitute sex-based harassment; instead, it is a distinct form of sex discrimination as discussed above. Therefore, it is the Department's current position that retaliation complaints may be made by any of the persons specified in proposed § 106.45(a)(2) as entitled to make a complaint of sex discrimination, including: the complainant; anyone who has the right to act on behalf of the complainant under proposed § 106.6(g); the Title IX Coordinator; or any student, employee, or third party who is participating or attempting to participate in the recipient's education program or activity when the alleged sex discrimination occurred.
When a complaint alleging retaliation arises from the same facts or circumstances as another complaint or information reported about possible sex discrimination, such as when a person experiences retaliation for participating in the recipient's grievance procedures under Title IX, the recipient would be permitted to consolidate the retaliation complaint with the other complaint of sex discrimination under proposed § 106.45(e). When the complaint of retaliation is consolidated with a complaint of sex-based harassment involving a student complainant or student respondent at a postsecondary institution, the grievance procedures for the consolidated complaint would be required to comply with proposed §§ 106.45 and 106.46. By providing a recipient the discretion to consolidate retaliation complaints with complaints alleging other forms of sex discrimination, the proposed regulations would allow the recipient to respond to allegations of such retaliation more efficiently and effectively than under the current regulations.
Through the June 2021 Title IX Public Hearing, OCR received feedback requesting that the Department find ways to ensure that a recipient implements its grievance procedures in a manner that does not intimidate those seeking to provide information regarding sex discrimination or to participate fully in the recipient's grievance procedures. Stakeholders stated that complainants who reported sex-based harassment to their schools have been threatened with or faced disciplinary sanctions for reporting sex-based harassment. These stakeholders also expressed concern that retaliatory implementation of a recipient's code of conduct would deter students from reporting sex-based harassment and accessing supportive measures or other forms of support that may be provided by the recipient. The Department shares these concerns and proposes maintaining current § 106.71(a) but wishes to clarify the application of this provision.
In the preamble to the 2020 amendments, the Department explained that “[i]f a recipient always takes a zero tolerance approach to underage drinking in its code of conduct and always imposes the same punishment for underage drinking, irrespective of the circumstances, then imposing such a punishment would not be `for the purpose of interfering with any right or privilege secured by' Title IX or these final regulations and thus would not constitute retaliation under these final regulations.” 85 FR 30536. After reweighing the facts and circumstances, including but not limited to feedback from stakeholders regarding the impact of such conduct on participation in the Title IX process, the Department submits that it is appropriate to clarify its interpretation of current § 106.71(a). The Department recognizes that when alleging that a recipient has engaged in retaliatory enforcement of its code of conduct, a complainant will not typically have access to the information necessary to definitively allege that the recipient did not consistently implement its zero-tolerance approach in order to demonstrate that enforcement of the code of conduct was, in that instance, retaliatory. The Department's current view is that the position taken in the preamble to the 2020 amendments did not fully account for this imbalance in access to information. Under these proposed regulations, a recipient that implements a zero-tolerance approach would be required to comply with its obligations under proposed § 106.71(a). Moreover, as explained in greater detail in the discussion of proposed § 106.44(b), a recipient would have to ensure that, through its Title IX Coordinator, it is monitoring potential barriers to those seeking to provide information regarding conduct that may constitute sex discrimination under Title IX, including retaliation.
The Department also proposes a nonsubstantive change to the regulatory text for proposed § 106.71(a) to replace “charges” with “initiating a disciplinary process.”
The Department's 2018 NPRM did not propose amending the Title IX regulations to specifically address peer retaliation or retaliation more generally, as discussed above. Commenters on the 2018 NPRM, recognizing that the Title IX regulations have long prohibited retaliation, sought clarity about the standards that would apply to a recipient's obligation to respond to a complaint of peer retaliation and, in particular, whether the Department's proposed requirement of actual knowledge and proposed deliberate indifference standard for a recipient's response to sexual harassment would apply to retaliation as well. 85 FR 30277, 30535. In response to these comments, the Department declined to apply an actual knowledge requirement to retaliation, explaining in the preamble to the 2020 amendments that the “actual knowledge requirement in [the current regulations] applies to sexual harassment and does not apply to a claim of retaliation” because “the Supreme Court has not applied an actual knowledge requirement to a claim of retaliation,” unlike with respect to sexual harassment, as set out in
OCR received feedback from stakeholders during listening sessions and through the June 2021 Title IX Public Hearing requesting that the Department review the 2020 amendments and take further steps to address a recipient's obligation to respond to peer retaliation. Stakeholders stated that peer retaliation continues to be a problem that chills reporting for potential complainants and affects both complainants and respondents going through a recipient's grievance procedures. These stakeholders requested that the Department strengthen its anti-retaliation protections and ensure that recipients address peer retaliation beyond the steps taken in the 2020 amendments.
The Department notes that courts have recognized that a recipient has a responsibility to address peer retaliation.
The Department is aware that some courts have recognized a recipient's obligation to respond to retaliatory peer harassment as part of its obligation to respond to sex-based harassment.
After considering recent case law as well as the feedback received following the implementation of the 2020 amendments, it is the Department's current position that, to fully implement Title IX, the proposed regulations must require recipients to address sex discrimination in the form of peer retaliation. The Department also recognizes that the 2020 amendments did not specify the steps a recipient must take in response to peer retaliation, and that this lack of specificity may cause confusion for recipients and others. Therefore, the Department proposes specifically requiring a recipient to address information about possible peer retaliation consistent with its obligation to address conduct that may constitute sex discrimination under proposed § 106.44.
The Department notes that the items described in proposed § 106.71 as examples of prohibited retaliation do not represent an exhaustive list. For example, in connection with the June 2021 Title IX Public Hearing and during listening sessions with stakeholders, OCR heard from individuals who identified instances in which respondents or others made complaints accusing a complainant of sex-based harassment for the purpose of intimidating a complainant or coercing a complainant to withdraw the complainant's original complaint of sex-based harassment. If a complainant alleges that another person made a complaint in retaliation for their original complaint, the recipient would be required to determine whether that other person's complaint constituted prohibited retaliation under proposed § 106.71.
The Department also recognizes that a recipient may be engaging in prohibited retaliation when it disciplines an individual for discussing conduct that would constitute sex discrimination under Title IX if the recipient takes that disciplinary action for the purpose of retaliating against the individual rather than for another reason, such as taking reasonable steps to protect the privacy of parties, witnesses, and others participating in the recipient's grievance procedures in proposed § 106.45(b)(5). OCR received comments during the June 2021 Title IX Public Hearing requesting clarification that discipline for engaging in these discussions is prohibited. Whether this action constitutes retaliation would be a fact-specific inquiry to determine whether the recipient disciplined the individual for the purpose of interfering with that individual's Title IX rights.
The Department invites you to submit comments on all aspects of the proposed regulations, as well as the Regulatory Impact Analysis. The Department is particularly interested in comments on questions posed throughout the Preamble, which are collected here for the convenience of commenters, with a reference to the section in which they appear. The Department is also interested in comments on questions posed in the Regulatory Impact Analysis.
1.
The proposed regulations at §§ 106.44, 106.45, and 106.46 clarify the obligation of a recipient to respond promptly and effectively to information and complaints about sex discrimination in its education program or activity in a way that ensures full implementation of Title IX. The Department invites comments on whether there are additional requirements that should be included in, or removed from, the current and proposed regulations to assist recipients in meeting their obligation under Title IX to provide an educational environment free from discrimination based on sex. The Department also seeks comment on whether and how any of the proposed grievance procedures (or any proposed additions from commenters) should apply differently to various subgroups of complainants or respondents, such as students or employees, or students at varying educational levels.
The Department is aware that, prior to August 2020, some recipients used a single investigator or team of investigators to investigate complaints of sex-based harassment and make determinations whether sex-based harassment occurred. The Department invites comments on recipients' experiences using that model to comply with Title IX and the steps taken, if any, to ensure adequate, reliable, and impartial investigation and resolution of complaints, including equitable treatment of the parties and reliable grievance procedures that are free from bias. The Department also invites comments on these issues from persons who were parties or served as an advisor to a party to a complaint that was investigated and resolved by a recipient using a single investigator model.
a. To the extent commenters take the position that the clear and convincing standard would be appropriate when used in all other comparable proceedings, the Department invites comments on steps that recipients implementing that standard have taken to ensure equitable treatment between the parties.
b. The Department invites comments on whether it is appropriate to allow a recipient to use a different standard of proof in employee-on-employee sex discrimination complaints, than it uses in sex discrimination complaints involving a student.
c. The Department invites comments on whether it would be appropriate to mandate the use of only one standard of proof for sex discrimination complaints.
Under Executive Order 12866,
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive Order.
This proposed action is “significant” and therefore subject to review by OMB under section 3(f)(4) of this Executive Order because it raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.
The Department has also reviewed the proposed regulations under Executive Order 13563,
(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
Under Executive Order 13563, the Department believes that the benefits of these proposed regulations justify their costs. In choosing among alternative regulatory approaches, the Department selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that the proposed regulations are consistent with the principles in Executive Order 13563.
The Department has also preliminarily determined that this regulatory action would not unduly interfere with State, local, or Tribal governments in the exercise of their governmental functions.
This RIA discusses the need for regulatory action, the potential costs and benefits, assumptions, limitations, and data sources, as well as regulatory alternatives considered. Although most of the costs related to information collection are discussed within this RIA, under Paperwork Reduction Act of 1995, this notice also identifies and further explains burdens specifically associated with information collection requirements.
In 2021, the President directed the Department in both Executive Order 13988
Among the considerations was feedback received from many stakeholders during the June 2021 Title IX Public Hearing, listening sessions, and meetings held under Executive Order 12866, stating that the current regulations include onerous requirements for sexual harassment grievance procedures that are unnecessarily adversarial in nature—potentially resulting in a decrease in students' willingness to file complaints or fully participate in the grievance process. These stakeholders also stated that the current requirements for sexual harassment grievance procedures unduly increase administrative burden and intrude on a recipient's professional judgment and expertise regarding how best to respond to allegations of student misconduct without improving the recipient's ability to address sex discrimination within their education environments. During the June 2021 Title IX Public Hearing, some stakeholders expressed support for the current regulations, remarking that the requirements governing a recipient's sexual harassment grievance procedures should remain in place without change, while other stakeholders suggested the Department amend various provisions in the regulations that they deemed important (including the deliberate indifference standard, the actual knowledge requirement, and specific requirements related to grievance procedures for formal complaints of sexual harassment). Many stakeholders expressed concerns regarding the scope of the current regulatory definition of “sexual harassment,” the requirement that a recipient need only respond to sexual harassment when it has actual knowledge, and that it need only respond in a manner that is not deliberately indifferent. Apart from addressing sexual harassment, many stakeholders asked the Department to clarify protections related to discrimination based on sexual orientation and gender identity, presenting a variety of positions that they urged the Department to adopt, while other stakeholders asked the Department to clarify Title IX's protections against discrimination based on pregnancy or related conditions.
The Department proposes amending its Title IX regulations to address the concerns raised by stakeholders and anticipates that the proposed regulations would result in many benefits to recipients, students, employees, and others, including by:
• Requiring recipients to adopt grievance procedures that provide for the prompt and equitable resolution of complaints of sex discrimination and
• Clarifying the Department's view of the scope of Title IX's prohibition on sex discrimination, including related to a hostile environment under the recipient's education program or activity, as well as discrimination on the basis of sex stereotypes, sex characteristics, sexual orientation, pregnancy or related conditions, and gender identity;
• Clarifying a recipient's obligations to students and employees who are pregnant or experiencing pregnancy-related conditions.
As discussed in more detail in the following sections, it is the Department's belief that the proposed regulatory changes will fulfill Title IX's overarching goal: to ensure that no person experiences sex discrimination in education. To that end, the Department aims to ensure that all recipients can implement Title IX's nondiscrimination mandate fully and fairly in their educational environments.
The Department has analyzed the costs and benefits of complying with the proposed regulations. Although many of the associated costs and benefits are not easily quantifiable, the Department currently believes that the benefits derived from the proposed regulations outweigh the associated costs given that the objectives of the rulemaking are to ensure: (1) that sex discrimination does not take place in any education program or activity receiving Federal financial assistance, and (2) that sex discrimination is redressed promptly and effectively if it occurs.
Title IX, which applies to approximately 18,000 LEAs, over 6,000 IHEs, and numerous other recipients such as libraries and museums, requires a recipient to provide an education program or activity that is free from sex discrimination. The proposed regulations would introduce new obligations and clarify existing obligations of entities subject to the regulations in order to promote an educational environment free from sex discrimination. The Department expects that the proposed regulations would benefit recipients, as well as students, employees, and others by ensuring that students, employees, and others understand their rights and recipients understand their responsibilities under Title IX; clarifying the scope and application of Title IX including but not limited to the obligation of recipients to address all forms of sex discrimination; ensuring that supportive measures will be provided, as appropriate, to a complainant and respondent to restore or preserve that party's access to the recipient's education program or activity; clarifying that remedies are available, as appropriate, to anyone subjected to sex discrimination while participating in or attempting to participate in a recipient's education program or activity; requiring recipients to provide training for employees regarding their obligations under Title IX; revising the requirements for grievance procedures to provide for the prompt and equitable resolution of complaints of any form of sex discrimination; allowing a recipient the ability to adapt its grievance procedures to its size, population served, and administrative structure while ensuring equitable treatment of all parties; clarifying the responsibilities of Title IX Coordinators; and ensuring nondiscriminatory access to a recipient's education program or activity for students and employees who are pregnant or experiencing related conditions. The Department believes that the proposed regulations would provide numerous important benefits and also recognizes that it is not able to quantify each of these benefits at this time. Still, it is the Department's tentative view that the proposed changes just described, in addition to others discussed more fully throughout the RIA, would reduce the occurrence of sex discrimination in a recipient's education program or activity and facilitate a prompt and equitable resolution when sex discrimination occurs, thereby supporting a recipient's efforts to provide an educational environment free from sex discrimination. Although there are limited data quantifying the economic impacts of sex discrimination, including sex-based harassment, on individuals, studies suggest that there is a cost associated with being subjected to sex discrimination.
Due to the large number of affected recipients (over 24,000, as discussed more fully in the discussion of Developing the Model (Section 4.B)), the variation in likely responses to any regulatory change, and the limited information available about current practices, particularly at the LEA level, the Department is not able to precisely estimate the likely costs, benefits, and other effects of the proposed regulations. The Department specifically invites comment on data sources that would provide comprehensive information regarding current practices used in providing an educational environment free from sex discrimination as required by Title IX, information regarding the number of recipients in each group described in the discussion of Developing the Model (Section 4.B), and time estimates for the activities described in the discussion of Cost Estimates (Section 4.C) disaggregated by type of recipient. Despite these limitations and based on the best available evidence as explained in the discussion of Establishing a Baseline (Section 4.A), the Department estimates that the regulations would result in a discounted net cost savings to recipients of between $9.8 million to $28.2 million over ten years. These estimated cost savings arise largely from the additional flexibility that recipients would have to design and implement grievance procedures consistent with Title IX under proposed § 106.45, and if applicable proposed § 106.46.
The assumptions, data, methodology, and other relevant materials, as applicable, on which the Department relied in developing its estimates are described throughout this RIA.
The Department submits that this proposed regulatory action would address the potential gaps in coverage within the current regulatory framework that have been raised by stakeholders and observed by the Department, including but not limited to areas such as the steps a recipient must take with respect to sex discrimination, the requirements for a recipient's grievance procedures for sex discrimination other than sexual harassment, a recipient's
Although the Department cannot quantify in monetary terms the ancillary benefits the proposed regulations may provide to those who have been subjected to sex discrimination in an educational setting, the Department recognizes that sex discrimination, including sex-based harassment, can have profound and long-lasting economic costs for students, employees, their families, and others who seek to participate in the recipient's education program or activity. Being subjected to sex discrimination in a recipient's program or activity can affect an applicant's opportunity to enroll in a recipient's education program or activity, a student's ability to learn and thrive in and outside of the classroom, a prospective or current employee's ability to contribute their talents to the recipient's educational mission, and the opportunity of all participants to benefit, on an equal basis, from the recipient's education program or activity. Likewise, barriers to reporting sex discrimination within a recipient's program or activity could undermine the recipient's education environment for the entire community. The Department believes that the proposed regulations would offer a clear and fair framework for fulfilling Title IX's prohibition on sex discrimination in any education program or activity receiving Federal financial assistance.
The Department's current view is that the proposed regulations would reduce the long-term costs associated with providing an educational environment free from sex discrimination, thereby producing a demonstrable benefit for students, employees, and others participating or attempting to participate in the recipient's education program or activity. The Department anticipates those benefits would be realized based on several proposed changes to the current regulations. First, the proposed regulations would clarify the scope of Title IX's protection from sex discrimination for students and others participating or attempting to participate in a federally funded education program or activity and define terms integral to a recipient's obligations under Title IX. Second, the proposed regulations would set out the contours of a recipient's obligation to take action to address all forms of sex discrimination, including requiring a recipient's Title IX Coordinator to monitor its education program or activity for barriers to reporting sex discrimination and requiring the recipient to take steps reasonably calculated to address those barriers. Third, the proposed regulations would modify and strengthen existing training requirements by specifying the range of relevant persons that a recipient must train regarding the recipient's obligations under Title IX. Fourth, the proposed regulations would revise the notification requirements for a recipient, ensuring that specific employees notify the Title IX Coordinator when they have information about conduct that may constitute sex discrimination under Title IX in the recipient's education program or activity. Fifth, the proposed regulations would ensure the effective provision and implementation of supportive measures, as appropriate, to all complainants or respondents and clarify that when a recipient determines that sex discrimination has occurred, the recipient must provide remedies, as appropriate, to a complainant or any person the recipient identifies as having their equal access to the recipient's education program or activity limited or denied by sex discrimination, and take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur within the recipient's education program or activity. Sixth, the proposed regulations would revise the requirements for grievance procedures to provide for the prompt and equitable resolution of complaints of any form of sex discrimination and allow a recipient the ability to adapt its grievance procedures to its size, population served, and administrative structure while ensuring equitable treatment of all parties. Finally, the proposed regulations would provide clarity on the rights of students and employees who are pregnant or experiencing related conditions including, for example, by requiring a recipient to inform students of the recipient's obligations, providing students with the option of reasonable modifications necessary to prevent discrimination and to ensure equal access to its education program or activity, requiring a recipient to provide employees with reasonable break time to express breast milk or breastfeed as needed and, with respect to both students and employees, ensuring the availability of an appropriate space for lactation.
The Department expects that the proposed regulations, when reviewed in their totality, would reduce the likelihood of sex discrimination and the overall prevalence of sex discrimination in recipients' educational settings. Although the Department cannot, at this time, entirely quantify the economic impacts of these benefits, the Department believes that the benefits are substantial and far outweigh the estimated costs of the proposed regulations.
The Department's analysis reviews the Department's data sources, describes the model used for estimating the likely costs associated with the proposed regulations, and sets out those estimated costs. Due to limited quantitative data, the Department emphasizes that the monetary estimates reflect only the likely costs of this regulatory action for recipients and do not seek to quantify, in monetary terms, the costs of sex discrimination, including sex-based harassment and prohibited retaliation.
As described in the Discussion of Costs, Benefits, and Transfers (Section 2), there are limited data quantifying the economic impacts of sex discrimination, including sex-based harassment, on individuals, and studies suggest that there is a cost associated with being subjected to sex discrimination.
First, proposed § 106.44 would clarify a recipient's obligation to take action to end all forms of sex discrimination, including sex-based harassment, expressly covering more forms of conduct than current § 106.44. Specifically, the proposed regulations would require a recipient to take prompt and effective action to end any sex discrimination that has occurred in its program or activity, prevent its recurrence, and remedy its effects, regardless of whether a complaint is made. Current § 106.44 prescribes only how a recipient must respond to allegations of sexual harassment in its education program or activity when a report is made to certain employees; the current regulations at § 106.44 are silent with respect to a recipient's obligation to respond to other forms of sex discrimination. By prescribing the actions a recipient must take to operate its education program or activity free from sex discrimination, the Department's current view is that the proposed changes would aid the
Second, proposed § 106.44(g) would make clear that upon being notified of conduct that may constitute sex discrimination under Title IX, including sex-based harassment and prohibited retaliation, a Title IX Coordinator must offer supportive measures, as appropriate, to the complainant or respondent to the extent necessary to restore or preserve that party's access to the recipient's education program or activity. Proposed § 106.44(g) would also clarify that for allegations of sex discrimination other than sex-based harassment or retaliation, a recipient's provision of supportive measures would not require the recipient, its employee, or other person authorized to provide aid, benefit, or service on the recipient's behalf to alter the conduct that is alleged to be sex discrimination for the purpose of providing a supportive measure. As the proposed requirement regarding supportive measures would cover prohibited retaliation as well as other forms of sex discrimination not currently addressed by the current regulations, the Department recognizes that the number of incidents in which the parties would be provided supportive measures would likely increase compared to the current regulations, as would any related costs in providing those supportive measures. The Department estimates that this provision would incur a negligible monetary cost per incident and that the cumulative annual costs to the recipient would therefore be at a de minimis level. The Department also anticipates that these costs will either be reduced in the long-term or be offset by other savings. Those savings may come from other proposed changes (
The Department expects that the proposed regulations would increase the use of a recipient's grievance procedures by students and others, thereby resulting in an increase in the prompt and equitable resolution of complaints of sex discrimination in a recipient's program or activity. If this assumption is correct, it is also reasonable to believe that the proposed regulations may reduce the prevalence of sex discrimination, including sex-based harassment, as well as the adverse academic, social, emotional, and economic effects of sex discrimination on individuals and recipient communities. Again, the Department recognizes that it does not currently have data to form a reliable estimate of these effects as related to associated costs and requests comment on the extent to which implementation costs would be offset by such effects and how both the costs and long-term benefits may be reliably estimated, including any evidence that may be used to inform such estimates.
As discussed in the preamble to the Department's 2020 amendments to its Title IX regulations, the primary challenge associated with estimating the effects of any new regulatory action under Title IX is the lack of comprehensive data on the actions recipients are taking to comply with their current obligations. As part of the comment process on the 2020 amendments, the Department requested information about data sources that would provide this information and which the Department could use to inform its estimates. The Department did not receive such sources at that time and again requests comment to help identify high quality data sources on the actions currently being taken by recipients to comply with Title IX.
In the absence of a recent, high quality, and comprehensive data source, the Department relies, as it did for the 2020 amendments, on a 2014 report titled Sexual Violence on Campus (2014 Senate Subcommittee Report) issued by the U.S. Senate Subcommittee on Financial and Contracting Oversight.
To estimate the likely impact of the proposed regulations, the Department must consider the policies and practices of recipients in responding to sexual harassment prior to the promulgation of the 2020 amendments. This consideration is necessary because the 2020 amendments specified in the Department's Title IX regulations, for the first time, the definition of “sexual harassment” and the obligation of a recipient to respond to sexual harassment under Title IX. The proposed regulations would require a recipient to take prompt and effective steps to ensure that sex discrimination, including sex-based harassment that creates a hostile environment based on sex, does not continue or recur in the recipient's education program or activity. This proposed use of a hostile environment standard encompasses conduct that was addressed in enforcement practice prior to the current regulations; as a result, data regarding recipients' actions regarding sexual harassment prior to the 2020 amendments would assist in estimating the likely effects of the proposed regulations. Note that the Department is not assuming that information relating to recipient behavior prior to the effective date of the 2020 amendments would impact the baseline (that is, behavior and burdens in the absence of the proposed regulations), but rather, that a number of the proposed changes would remove some of the restrictions on recipient responses to sexual harassment imposed by the 2020 amendments. However, the Department notes that the proposed regulations would create different requirements from those established in its enforcement practices prior to the 2020 amendments. As a result, recipient behavior prior to the effective date of
In the 2020 amendments, the Department assumed that the number of incidents reported under the Clery Act could be used as an instrument to estimate total incidents of sexual harassment, including those not captured in the 2014 Senate Subcommittee Report; as a result, the Department estimated that, prior to the issuance of those amendments, IHEs conducted approximately 5.7 Title IX investigations of sexual harassment per year.
At the LEA level, the Department does not have publicly reported data on the average number of investigations of sexual harassment occurring each year. The most recent publicly available data from the CRDC indicates an average of 3.23 incidents of sexual harassment per LEA per year.
The Department has not been able to identify reliable data sources about actions taken by recipients following the promulgation of the 2020 amendments. As a result, it is difficult for the Department to estimate the number of investigations that have occurred since issuance of the 2020 amendments or the number that would likely occur in later years in the absence of the Department's proposed regulations. This absence of data means the Department could not construct a baseline from which to estimate the likely effects of the proposed regulations. Instead, the Department has a reasonable framework for understanding the likely actions recipients would take to comply with the proposed regulations as well as a benchmark for generating baseline estimates of recipients' actions following the promulgation of the 2020 amendments, based on anecdotal information from experts in the field as well as feedback from the June 2021 Title IX Public Hearing, listening sessions, and the meetings held under Executive Order 12866 in 2022. These sources provide some reasonably reliable information about actions taken by recipients to comply with Title IX prior to the promulgation of the 2020 amendments. However, in using this anecdotal information, the Department is mindful that the 2020 amendments introduced requirements and definitions not previously promulgated and thus actions prior to the 2020 amendments will not capture all aspects of a recipient's actions following the issuance of the 2020 regulations.
The Department is not attempting to estimate the degree of sex discrimination at recipient institutions. Rather, the Department is attempting to estimate the number of times recipients will be required to engage in particular activities, such as conducting investigations or providing supportive measures. For instance, in the preamble to the 2020 amendments, the Department estimated that approximately 90 percent of LEAs and 50 percent of IHEs would reduce the number of investigations conducted each year. The Department estimated that, on average, these LEAs would conduct 1.29 fewer investigations per year under the 2020 amendments. The Department also estimated that the annual average reduction in investigations would be −2.84 for those IHEs that reduced their number of investigations. Since making those assumptions in the 2020 amendments, OCR has received feedback from a variety of stakeholders, through the June 2021 Title IX Public Hearing, in listening sessions, and meetings held in 2022 under Executive Order 12866, that the actual reduction may have been higher due to the deterrent effect of the perceived burden associated with the current sexual harassment grievance procedure requirements on a complainant's willingness to report sexual harassment or participate in a process to resolve a formal complaint of sexual harassment. Further, based on anecdotal reports, the Department understands that many recipients that experienced a reduction in the number of sexual harassment complaints filed at their respective institutions subsequent to the 2020 amendments shifted their resolution processes away from what would have been a proceeding under current § 106.45 to an alternative disciplinary process, such as a general student conduct process outside of the scope of Title IX. Although this information from recipients and others confirms the Department's 2020 estimate related to the decrease in the number of investigations, it is anecdotal and, as such, does not provide the Department with sufficient evidence on which to revise its 2020 estimate. Further, the Department recognizes that the COVID-19 pandemic resulted in many LEAs and IHEs operating remotely, which may have reduced the incidence or reporting of sexual harassment, the willingness of students and others to initiate a recipient's grievance procedures in response to alleged sexual harassment, or both. Again, however, the Department has not identified high-quality research studies to inform its analysis. Therefore, the Department continues to assume that the estimates of the 2020 amendments represent the baseline level of a recipient's actions to comply with Title IX in future years when considered in the absence of the proposed regulations. The Department invites comment on whether these estimates are reasonable and whether high quality data sources or studies exist regarding recipients' actions in response to the 2020 amendments.
Notwithstanding the estimates used for the 2020 amendments, for recipients that saw reductions in the number of investigations conducted each year under the 2020 amendments, the Department estimates that 90 percent of alleged incidents that were previously classified as sexual harassment under subregulatory guidance documents, but did not meet the definition of “sexual harassment” under the current regulations, were handled by a recipient in other disciplinary processes. The Department invites comment on this estimate.
After the effective date of the 2020 amendments to its Title IX regulations, the Department assumes that recipients complied with the regulatory requirements and fell into one of three groups in how they handled complaints of sexual harassment that fell outside the scope of the current § 106.45:
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The Department has not assumed a recipient would behave differently based on its public or private status. Further the Department does not distinguish cost structures or burden hours based on public or private status, but instead applied an average across all IHEs in each analytical group. The Department also assumes recipients in all three groups generally complied with the 2020 amendments to the Title IX regulations. To the extent that a recipient did not comply with some or all of those amendments, the following estimates may overestimate or underestimate actual costs of the proposed regulations for that recipient.
To populate each of the three groups, the Department is using the same disbursement as was used in the 2020 rulemaking analysis. That is, the Department assumes that approximately 5 percent of LEAs, 5 percent of IHEs, and 90 percent of other recipients
The Department assumes that approximately 90 percent of LEAs, 50 percent of IHEs, and 5 percent of other recipients fall into Group B. The Department believes that a recipient in this group generally experienced some reduction in the number of sexual harassment investigations conducted under the grievance procedure requirements of the 2020 amendments, which would have been initiated only by a formal complaint of sexual harassment and, based on anecdotal evidence, would have also addressed at least some incidents that are no longer covered under the current grievance procedure requirements by using an alternative disciplinary process. In the preamble to the 2020 amendments, the Department did not account for such a shift in its estimates; however, the current model assumes such behavior as part of the baseline. The Department assumes that, in response to the proposed regulations, Group B would see an increase in the total number of investigations under Title IX due to the proposed application of regulatory grievance procedures to more than sexual harassment complaints. It is assumed that Group B would benefit from some of the additional flexibilities offered under the proposed regulations, such as having the option between providing equitable access to the relevant and not otherwise impermissible evidence to the parties or providing them with a written investigative report that accurately summarizes the evidence under proposed § 106.46. The Department also believes that a recipient in this group would likely retain many aspects of its current grievance procedures in response to the proposed regulations. As a result, the Department estimates that the increase in the number of investigations for Group B under the proposed regulations would be smaller than the increase in the number of investigations for Group A because of the number of investigations and adjudications already occurring under the auspices of an alternative student or employee conduct process. It is estimated that recipients in Group B would see burden increases associated with necessary revision of procedures and recordkeeping under the proposed regulations.
The Department assumes that approximately 5 percent of LEAs, 45 percent of IHEs, and 5 percent of other recipients fall into Group C. A recipient in this group is assumed to use the grievance process established under the 2020 amendments to also resolve conduct that was not required to be resolved under Title IX. As a result, it is estimated that a recipient in Group C would not see a large increase in the number of investigations conducted annually or a meaningful change in the burden per investigation. However, a recipient in Group C, like those in the other two groups, may see burden increases associated with necessary revision of procedures and recordkeeping.
For recipients in both Groups A and B, the Department assumes that the proposed regulations addressing sex discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity, would result in an increase in the number of investigations conducted annually above the average encountered prior to the promulgation of the 2020 amendments. Although the Department has previously addressed a recipient's obligation to address these forms of discrimination in OCR's prior guidance, including harassment on these bases, the Department believes that at least some recipients may not have fully addressed these incidents absent a regulatory requirement.
Although the Department notes that proposed § 106.45(a)(2) would allow a third party participating or attempting to participate in a recipient's education program or activity to make a complaint of sex discrimination, the Department assumes this proposed change would result in a minimal increase in a recipient's overall number of complaints of sex discrimination. Specifically, the Department assumes that third-party complaints are somewhat uncommon (and would remain so), but that these complaints serve to inform recipients of at least some incidents of sex discrimination. In the case of a Group A recipient, the Department assumes that the recipient's treatment of information about conduct that may constitute discrimination received from a third party would solely depend on whether the third party made a complaint that initiated the recipient's grievance procedures. If the complainant declined or was not permitted to make a complaint under the recipient's policy, the Department assumes that the Group A recipient would not take action to address the information. The Department assumes that in contrast to Group A recipients, Group B and Group C recipients would take steps to address a third-party allegation of sex discrimination—whether by way of their Title IX process, alternative disciplinary process, or other process depending on the circumstances and nature of the report. Thus, although the proposed regulations may change the process under which such information is addressed, the inclusion of third-party complaints would not meaningfully increase the overall number of complaints processed annually across recipients. The Department welcomes comment on the extent to which third party complaints might increase the average number of investigations occurring annually above those estimated herein.
Unless otherwise specified, the Department's model uses mean hourly wages for personnel employed in the education sector as reported by the Bureau of Labor Statistics
LEAs, IHEs, and other recipients would be subject to the proposed regulations. Estimates regarding the number of affected LEAs and IHEs are based on the most recent data available from the National Center for Education Statistics
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It is important to note that within each of these categories of recipients, there is wide variation in the number of students served, number of employees, administrative structure, and annual revenue. This wide variation has made estimating the effects of the proposed regulations challenging, and the Department notes that the estimates provided are intended to reflect the average burden across the full spectrum of affected entities. As a result, estimates may be lower than the actual burden realized by, for example, larger recipients or recipients with more complex administrative structures, and larger than those actually realized by smaller recipients with less complex administrative structures. The Department notes that the estimates in the discussion of Cost Estimates (Section 4.C) were developed based on the RIA from the 2020 amendments, as informed by comments in response to the 2018 NPRM, as well as information received by OCR through the June 2021 Title IX Public Hearing, in listening sessions, and during the meetings held under Executive Order 12866 in 2022. The estimates were further informed by the input of internal subject matter experts. The Department invites comment on all estimates provided herein to ensure that they accurately reflect realistic assumptions about average burdens the proposed regulations would impose on the full range of affected entities.
The Department assumes that all recipients would need to spend time
The Department assumes that all recipients would need to make revisions to their grievance procedures as a result of the proposed regulations. At each recipient institution, the Department assumes that these revisions would take, on average, 6 hours for a Title IX Coordinator, 2 hours for an administrator ($100.36/hour), and 6 hours for a lawyer. In total, the Department estimates that revising grievance procedures would have a one-time cost of $42,021,480 in Year 1. This estimate includes the costs of a recipient's revisions to its grievance procedures associated with the Department's proposal to require recipients to comply with its proposed revisions to § 106.45 rather than current § 106.45, and for IHEs to also comply with proposed § 106.46.
The proposed regulations would provide substantial clarity on recipient obligations under Title IX. As such, some recipients may choose to engage in supplemental review of their existing policies to determine compliance and to make changes, if needed, in addition to the proposed changes that may impact a recipient's grievance procedures. The Department assumes that these estimates would be sufficient to account for such behavior but seeks comment on the proportion of recipients, disaggregated by type of entity if appropriate, that would be likely to engage in supplemental policy compliance reviews as a result of the proposed regulations, as well as the likely burden associated with such reviews.
Although the 2020 amendments required a recipient to post nondiscrimination statements on the recipient's website, the Department assumes that approximately 40 percent of LEAs, 20 percent of IHEs, and 50 percent of other institutions would experience more than de minimis burden to modify their existing statements to comply with the requirements of the notice of nondiscrimination under proposed § 106.8(c). These estimates are based, in part, on how recently the 2020 amendments went into effect, potential impacts from the COVID-19 pandemic which likely delayed at least some recipients from complying with the requirement in the 2020 amendments, and any updates to existing content that may be necessary due to the proposed regulations. For a recipient that has not yet completed this requirement, the Department assumes doing so would take 1 hour from the Title IX Coordinator and 2 hours from a web developer ($68.48/hour).
The Department requests comment on these estimates.
The proposed regulations would likely impact the annual training provided to Title IX Coordinators and designees, investigators, decisionmakers, and other persons who are responsible for implementing a recipient's grievance procedures or have the authority to modify or terminate supportive measures. For individuals other than the Title IX Coordinator and designees, the Department believes it is unlikely that the length of training would have to change, and therefore believes that any associated burden for these individuals would not change as a result of the proposed regulations. The Department assumes that Title IX Coordinators would revise existing training materials to incorporate any new content and adjust the remaining parts of the training accordingly to avoid extending the length and cost of administering the training.
Although the Department notes that the proposed regulations would require all employees to be trained on the scope of conduct that constitutes sex discrimination, including the definition of “sex-based harassment,” and all applicable notification requirements under proposed §§ 106.40(b)(2) and 106.44, the Department does not believe that this requirement would meaningfully change the overall annual burden related to training requirements for recipient employees. As an initial matter, the Department assumes that all employees of recipients receive required trainings each year and that recipients generally strive to limit the total amount of time employees spend in these trainings. The Department also assumes that recipients will not budget additional funds in response to the modification of the current training requirement, and thus, will not experience an increased monetary burden due to this proposed change. The Department believes that recipients make purposeful decisions about the amount of time dedicated to each required training and would increase or decrease the time required for particular training sessions, as needed, to ensure that all required topics are covered within a set amount of time. As a result, the Department assumes that the proposed regulations would ultimately have a de minimis effect on the time burden for employees associated with training, and requests comment on this assumption.
Across all recipients, the Department estimates that updating training materials for individuals other than the Title IX Coordinators would take 4 hours for the Title IX Coordinator for a total one-time cost of $9,949,690. In subsequent years, the Department assumes that the burden associated with the annual updating of training materials would be about the same as it would be in the absence of the proposed regulations.
In contrast, the Department anticipates that the proposed regulations would require more extensive, longer training for Title IX Coordinators compared to the current regulations. As an initial matter, the Department assumes that a recipient would employ similar means by which to train its Title IX Coordinator in response to the current regulations as the recipient employed in response to the promulgation of the 2020 amendments; however, the Department acknowledges that the development and delivery method of the training varies among recipients. For example, the Department assumes that some recipients hired outside counsel, law firms, and professional organizations to train their Title IX Coordinators while other recipients relied upon internal stakeholders such as the recipient's general counsel. In its tentative view, the Department has no reason to believe that a recipient would deviate from its current source of training because of the proposed regulations.
The Department assumes that such trainings would be 2 hours longer for each Title IX Coordinator in Year 1, and 1 hour longer in future years. In total, the Department estimates that the training of Title IX Coordinators would have a cost of $4,974,850 in Year 1 and $2,487,423 in each succeeding year. Costs will also be incurred to update training materials for Title IX Coordinators. These materials may be developed in a variety of ways, depending on the preferences of individual recipients. These materials will be more comprehensive in nature, but individual entities may develop training materials that will be used across many recipients. As a result, the Department assumes training development costs for Title IX Coordinators equal to those estimated for other individuals, equaling a one-time cost of $9,949,690. The Department seeks comment on assumptions related to the effects of the proposed regulations on training.
With respect to the provision of supportive measures, the Department's proposed regulations would require a recipient to offer supportive measures, as appropriate, to complainants and respondents who may have experienced sex discrimination, including sex-based harassment and prohibited retaliation. Although the current regulations only require a recipient to offer supportive measures, as appropriate, to complainants and respondents in response to information regarding sexual harassment, nothing in the current regulations would prohibit a recipient from also offering supportive measures to address other types of sex discrimination. The Department assumes that prohibited retaliation would most likely occur following a report or complaint of sex-based harassment (as opposed to other forms of sex discrimination) and that, in such instances, the types of supportive measures offered following the initial report or complaint of sex-based harassment would be largely indistinguishable from the types of supportive measures offered in response to prohibited retaliation and would not result in additional measurable cost to the recipient. Further, the Department submits that it is unlikely that there would be an increase in the number of individuals seeking and accepting supportive measures solely to address the impacts of “prohibited retaliation” as defined under proposed § 106.71.
The Department notes that the proposed regulations state that for allegations of sex discrimination other than sex-based harassment or prohibited retaliation, the recipient would not be required to alter the conduct that is alleged to be sex discrimination for the purpose of providing a supportive measure. The Department expects that there would be little impact on anticipated costs to recipients associated with the proposed provision requiring supportive measures to be offered to complainants and respondents who may have experienced other forms of sex discrimination. The Department's assumption is based on the belief that such information would likely fall into one of two categories. The first category consists of information a recipient would receive about sex discrimination related to unequal access to resources or facilities (
Likewise, the Department anticipates that complaints of and information about sex discrimination in educational settings (
For supportive measures related to sex-based harassment, the Department assumes that the proposed regulations would have a negligible effect on the burden per incident. Specifically, as the variety of supportive measures and need to adapt those measures to a particular situation makes estimating the full spectrum of costs impracticable, the Department used the cost of more commonly provided supportive measures when calculating cost estimates. Moreover, as it is likely that many of the supportive measures available to individuals are already provided by recipients, the Department expects that the actual costs of each type of measure would be de minimis; however, the Department has added a flat cost of $250 per incident to account for any potential costs. The Department cannot provide greater specificity regarding specific measures given the wide range of possible measures that could be offered, the varying administrative structures of recipients, and the need to align any supportive measures to the specific facts of each case.
At the LEA level, the Department assumes that, per incident, the provision of supportive measures currently takes 2 hours from a Title IX Coordinator and 2 hours from an administrative assistant ($61.06/hour), with a flat additional cost of $250 per incident.
Currently, the Department assumes that a recipient offers and potentially provides supportive measures in all instances that, prior to the 2020 amendments, would have triggered an investigation, as well as in many instances that previously would not have triggered an investigation. Across all recipient types, the Department assumes that under the proposed regulations, the number of incidents prompting an offer and provision of
The Department's estimates also reflect an anticipated change in the behavior of complainants across all recipient types due to the proposed regulations. Specifically, the Department has received anecdotal reports of complainants accepting supportive measures while declining to participate in a recipient's grievance procedures due to the perceived burden associated with initiating those procedures. The Department estimates that currently, the number of individuals accepting supportive measures is two to three times greater than the number of individuals choosing to pursue resolution through the recipient's grievance procedures. Under the proposed regulations, however, the Department estimates that the percentage of individuals who report an incident to a recipient and choose to make a complaint to initiate the recipient's grievance procedures under proposed § 106.45, and if applicable proposed § 106.46, would increase, with the discrepancy between the two reduced, on average, to approximately 35 percent. This change is also likely to result in large, unquantified benefits to complainants by providing increased opportunities for reporting sex discrimination and accepting supportive measures, as explained in the discussion of Benefits of the Proposed Regulations (Section 3). In response to the proposed regulations, the Department assumes, as described in the discussion of Developing the Model (Section 4.B), that all recipients would see a 10 percent increase in the number of incidents in which a complainant accepts some supportive measures offered. The Department notes that this is not an assumption that the proposed regulations would increase the number of incidents that may initiate an offer of supportive measures, but rather, the Department believes this increase likely would be driven by greater clarity regarding the scope of coverage created by the proposed regulations and enhanced training requirements which would inform individuals who are already eligible for such measures of the availability of these measures. The Department assumes that under the proposed regulations, each LEA would provide supportive measures 4.80 times per year, each IHE would do so 8.47 times per year, and other recipients would do so 2.97 times each per year. In all, the Department estimates that after the enactment of the proposed regulations, the provision of supportive measures would cost a total of $76,958,240, for a net increase of $6,996,200.
The Department requests comment on the likely effect of the proposed regulations on the costs associated with the provision of supportive measures, particularly regarding assumptions about the likely effects of recipients offering supportive measures in instances of receiving information about sex discrimination not related to sex-based harassment or prohibited retaliation.
Under the current regulations, the geographic location of an alleged incident affects whether the allegations would be covered under Title IX. As a result, the Department recognizes that LEAs and IHEs spend time investigating whether incidents took place in a location that requires the use of Title IX grievance procedures to investigate and adjudicate allegations of sexual harassment. The proposed change to § 106.11 would clarify that Title IX applies to every recipient and all sex discrimination occurring under a recipient's education program or activity. This includes the obligation to respond to a hostile environment based on sex under a recipient's education program or activity in the United States, even if the sex-based harassment contributing to the hostile environment occurred outside the recipient's education program or activity or outside the United States. In some instances, such as when an alleged incident occurred outside of the United States and may have contributed to a hostile environment in the recipient's education program or activity domestically, the Department anticipates that the resulting investigation may be more time consuming. Due to a lack of high-quality data on these issues, the Department does not have a basis upon which to develop estimates of this change. The Department seeks comment to help better estimate the effects of this change.
As noted in the discussion of Developing the Model (Section 4.B), it is the Department's preliminary view that recipients would fall into three groups for purposes of categorizing their likely responses to the proposed regulations. A recipient in Group A would likely experience an increase in the number of Title IX investigations conducted under the proposed regulations, but it would also likely exercise flexibilities built into the proposed regulations which would reduce the burden per complaint. It is important to note that the Department assumes that the exercise of these flexibilities would not impact a recipient's ability to ensure fair investigations and adjudications but rather, would allow it to develop and maintain prompt and equitable procedures tailored to its educational settings, reducing the burden on the recipient while ensuring the implementation of a fair and equitable proceedings for the parties. A recipient in Group B also would likely experience an increase in the number of investigations conducted annually. However, the Department believes in its tentative view that a recipient in Group B would be more likely to maintain the structures required under the 2020 amendments, as these recipients likely already investigate and adjudicate the forms of conduct covered by the proposed regulations but excluded from the scope of the current regulations, by way of an alternative disciplinary process. Likewise, a recipient in Group C, having complied with the 2020 amendments and also having continued to respond to sex discrimination as it had prior to those amendments, would be unlikely to experience any burden changes associated with increased numbers of investigations or changes in the burden of such investigations.
As described in the discussion of Developing the Model (Section 4.B), the Department has a reasonable framework for understanding the likely actions of recipients, including how long it would take for a recipient to investigate a complaint of sexual harassment, based on discussions with organizations that work directly with Title IX Coordinators at LEAs and IHEs. For LEAs in Group A, the Department estimates that an investigation currently takes, on
Under the proposed regulations, the Department estimates that recipients in Group A would develop revised procedures to ensure fair investigations tailored to their educational settings, which would reduce the burden associated with each investigation and adjudication. Specifically, the removal of LEAs from some of the specific obligations under current § 106.45 would result in such recipients in Group A no longer being required to supplement the work of their own administrators with specialized individuals when conducting an investigation and making a determination in response to a complaint of sex-based harassment. The Department assumes investigations would require 4 hours from a Title IX Coordinator or other administrator (such as a building-level principal or assistant principal) and 4 hours from an administrative assistant. At the IHE level, the Department assumes each investigation and adjudication would take 5 hours from a Title IX Coordinator, 8 hours from an administrative assistant, 5 hours each from two lawyers/advisors, 10 hours from an investigator, and 2 hours from an adjudicator. For other recipients, the Department anticipates a need for 2 hours from a Title IX Coordinator, 4 hours from an administrative assistant, 2 hours each from two lawyers/advisors, 1 hour from an investigator, and 2 hours from an adjudicator.
As a preliminary matter, the current regulations require a recipient to create an “audio or audiovisual recording, or transcript” of all live hearings. As LEAs are not required to hold hearings, the Department assumes that few, if any, choose to do so. However, because IHEs are required to hold hearings under the current regulations, many recipients with means have chosen to fulfill this requirement by using a court reporter.
For IHEs and other recipients in Group A, the Department anticipates no change in the flat rate of $100 per investigation associated with meeting the recording requirements. The Department assumes no recording costs for LEAs in Group A. Under the proposed regulations, the Department assumes that LEAs in Group A would conduct, on average, 3.55 investigations per year; IHEs in Group A would conduct an average of 6.27 investigations per year, and other recipients would conduct, on average, 2.20 investigations per year. The Department therefore estimates that, under the proposed regulations, investigations and adjudications among recipients in Group A would cost approximately $9,548,740 per year, which represents a net burden increase of $2,741,550 per year.
For LEAs in Group B, the Department assumes an investigation currently requires 3 hours of time from a Title IX Coordinator, 14 hours from an administrative assistant, 8 hours each from two lawyers/advisors in 15 percent of cases, 8 hours from an investigator, and 2 hours from an adjudicator. At the IHE level in Group B, the Department estimates that current practices likely require 6 hours from a Title IX Coordinator, 20 hours from an administrative assistant, 20 hours each from two lawyers/advisors, 20 hours from an investigator, and 10 hours from an adjudicator. At other recipients in Group B, the Department assumes that current practices require 8 hours from a Title IX Coordinator, 16 hours from an administrative assistant, 8 hours each from two lawyers/advisors, 5 hours from an investigator, and 2 hours from an adjudicator. At LEAs and other recipients in Group B, the Department estimates that it would cost a flat rate of $100 per hearing to meet the recording requirements of the 2020 amendments.
As noted in the discussion of Lack of Data Following the Promulgation of the 2020 Amendments (Section 4.A.3), the Department assumes that a recipient in Group B shifted approximately 90 percent of those incidents into an alternative disciplinary process rather than not taking any action in response to incidents that were previously covered under their Title IX policies. As described in the discussion of Developing the Model (Section 4.B), the Department has initially determined, based on internal subject matter expertise, that many recipients developed alternative processes by which to address conduct that fell outside of the parameters of current § 106.45. As noted in that section, Group B and Group C recipients created alternative processes that either reflected the recipient's student conduct process (Group B recipients) or mirrored the current § 106.45 grievance procedures (Group C recipients). The Department assumes that resource and time expenditures for these alternative processes mirror those of the recipient's student conduct process for Group B recipients or the recipient's current § 106.45 grievance procedures for Group C recipients.
At the LEA level, the Department assumes that an alternative disciplinary process requires 3 hours from an administrator ($100.36/hour), 14 hours from an administrative assistant, 6 hours each from two lawyers/advisors in 5 percent of cases, and 6 hours from an investigator. The Department estimates that in 75 percent of LEAs, the process is adjudicated by an administrator for 3 additional hours, while in the other 25 percent of LEAs, an independent adjudicator is needed for 2 hours. At the IHE level, the Department assumes that the alternative disciplinary process requires 6 hours from an administrator, 20 hours from an administrative assistant, 10 hours each from two lawyers/advisors, and 15 hours from an investigator. The Department estimates that in 60 percent of IHEs, the process is adjudicated by an administrator for 6 additional hours, while in the other 40 percent of IHEs, an independent adjudicator is required for 8 hours. The Department estimates that LEAs in Group B, on average, shifted 1.628 investigations per year into alternative disciplinary processes in response to the 2020 amendments, while IHEs did the same with 1.70 investigations, and other recipients did so for 0.9 investigations. The Department therefore estimates that a recipient currently spends approximately $62,463,510 per year on implementing alternative disciplinary processes for incidents that were previously covered under their grievance procedures prior to the 2020 amendments.
Under the proposed regulations, the Department assumes that all of those incidents would be handled under the recipient's Title IX grievance procedures. At LEAs in Group B, the revised procedures would require approximately 4 hours from a Title IX Coordinator or other administrator (such as a building level principal or assistant principal) and 2 hours from an administrative assistant. The Department assumes that, in approximately 25 percent of instances, LEAs would use an investigator and adjudicator other than the Title IX Coordinator or other administrator. In such instances, the Department assumes that those LEAs would need 2 hours from an investigator and 1 hour from an adjudicator. The Department assumes that, in 5 percent of instances, each party would have a lawyer/advisor each spending 4 hours on the incident. These LEA level estimates represent an assumption that most LEAs would return to their processes from prior to the 2020 amendments due to the removal of LEAs from some of the specific obligations under current § 106.45. At the IHE level in Group B, the revised procedures would require 5 hours from a Title IX Coordinator, 13 hours from an administrative assistant, 15 hours each from two lawyers/advisors, 18 hours from an investigator, and 8 hours from an adjudicator. For other Group B recipients, revised procedures would require 2 hours from a Title IX Coordinator, 6 hours from an administrative assistant, 2 hours each from two lawyers/advisors in 5 percent of proceedings, 2 hours from an investigator, and 1 hour from an adjudicator.
Under the proposed regulations, the Department believes that Group B LEAs would conduct, on average, 3.553 investigations per year, while IHEs would conduct 6.27 investigations per year, and other recipients would conduct 2.20 investigations per year. Therefore, under the proposed regulations, investigations and adjudications at a recipient in Group B would cost a total of approximately $180,542,490 per year which represents a net decrease in the burden associated with investigations and hearings by $66,106,750 per year.
The Department assumes that nothing in the proposed regulations would change the nature of the appeal process for fully adjudicated complaints. The Department notes that the proposed regulations would require all recipients to offer an appeal of a dismissal of a sex discrimination complaint. This limited right to an appeal is an expansion of recipients' current obligations as it would apply to any dismissal of a sex discrimination complaint, not just to complaints of sex-based harassment. Although it is possible that at least some portion of recipients have an appeal process as part of their current procedures for resolving complaints of sex discrimination, the Department assumes that its current estimates may overestimate the costs of the proposed regulations in this area. The Department requests comment on this issue. Assuming that there is a de minimis change regarding the number of recipients that offer an appeal because all recipients would need to offer an appeal from a dismissal of a complaint of sex discrimination, there would be additional costs to a recipient associated with appeals because of the estimated increase in the number of complaints brought under the proposed regulations and the proportion of decisions that could be appealed.
Across all recipients, the Department estimates that one or more parties in approximately half of all fully adjudicated complaints appeal the determination. This estimate is consistent with estimates from the 2020 amendments and the Department again seeks comment on the extent to which this estimate is reasonable and whether this proportion is likely to change under the proposed regulations. The Department assumes that at the LEA level, the appeal process would require 2 hours each from a Title IX Coordinator, administrative assistant, and two lawyers/advisors as well as an additional 6 hours from an adjudicator while at the IHE level, the Department assumes that the appeal process requires 2 hours from a Title IX Coordinator, 4 hours from an administrative assistant, 5 hours each from two lawyers/advisors, and 8 hours from an adjudicator. Likewise, at other recipients, the Department assumes that the appeal process requires 2 hours each from a Title IX Coordinator, administrative assistant, and two lawyers/advisors, with an additional 8 hours from an adjudicator. Assuming that LEAs, on average, would handle an additional 0.605 appeals per year as a result of the proposed regulations, IHEs, on average, would receive an additional 0.921 appeals per year, and other recipients, on average, would see an additional 0.5 per year, the Department estimates that the increase in appeals stemming from the increase in complaints likely to be made under the proposed regulations would result in an additional cost of approximately $21,084,350 per year.
The Department expects that the proposed regulations would have a de minimis change on the proportion of complaints resolved through informal resolution and would not affect the general burden associated with each such resolution. Specifically, although the requirements for grievance procedures would be less burdensome under the proposed regulations than under the current regulations, the Department expects that the majority of complainants who would have elected to proceed with informal resolution under the current regulations would continue to do so under the proposed regulations because of the elimination of the current regulations' formal complaint requirement prior to initiating the informal resolution process. Although it is possible that a complainant would decide to make a complaint and pursue an investigation because of the reduced burden under the proposed regulations, it is the Department's tentative view that there is no basis to assume that a complainant who would have pursued informal resolution under the current regulations is more or less likely to choose informal resolution under the proposed regulations because individuals' rationales for choosing an informal resolution process vary widely.
Based on anecdotal reports from recipients and other stakeholders, the Department assumes that informal resolutions require more time from a Title IX Coordinator and an administrative assistant than an investigative process. In contrast, the Department assumes that the informal resolution process would remove all costs associated with investigators, adjudicators, and recording at all levels and eliminate costs for lawyers/advisors at the LEA level. At the LEA level, informal resolution may require 1 additional hour from a Title IX Coordinator and 5 hours from an administrative assistant above the level needed for a full hearing; at the IHE level, the additional burden would be 2.5 hours from a Title IX Coordinator and 1 hour from an administrative assistant, while at other recipients, the additional burden is estimated to be 1 hour from a Title IX Coordinator and 3 hours from an administrative assistant. The Department assumes that, in instances of informal resolution, there would be no burden for investigators or adjudicators at LEAs, IHE, or other recipients, and no burden for lawyers/advisors at LEAs or other recipients. At the IHE level, the Department assumes that, even in instances of informal resolution, there would be a burden of 6 hours each for two lawyers/advisors (one working with each party), assuming that the individuals serving in those roles may become involved earlier in the process than at other educational levels or at other recipients. In light of the increase in complaints that the Department anticipates under the
The Department assumes that all recipients would need to modify their existing recordkeeping systems to comply with the proposed regulations. Specifically, the Department submits that proposed § 106.8(f) would broaden the existing scope of the recordkeeping requirements under current § 106.45(b)(10) because, unlike the current regulations, the proposed recordkeeping requirement applies to all incidents or complaints of sex discrimination. However, the Department assumes that many recipients already maintain records related to sex discrimination under the auspices of State, local, or other requirements. In these instances, proposed § 106.8(f) would not impose any additional burden on those recipients as their existing recordkeeping activity would likely address all pertinent requirements under the proposed regulations.
Alternatively, for recipients that only maintain records related to sexual harassment as required by current § 106.45(b)(10) and do not preserve information related to other forms of sex discrimination, the proposed changes would increase their burden based on the volume of records they will need to maintain related to forms of sex discrimination other than sexual harassment, as would be required by proposed § 106.8(f). The Department estimates that the proposed regulations, in general, would increase the recordkeeping burden for these recipients. At the LEA level, the Department estimates that necessary modifications to current practice would require 2 hours each from a Title IX Coordinator and an administrative assistant, whereas at the IHE level, where a recipient is more likely to maintain electronic systems for these records, these changes would require 4 hours from a Title IX Coordinator, 8 hours from an administrative assistant, and 4 hours from a database administrator ($76.54/hour). At other recipients, the Department estimates that modifications would require 2 hours each from a Title IX Coordinator and an administrative assistant. In total, the Department estimates that modifications to recipients' recordkeeping systems would cost approximately $13,288,180 in Year 1.
In future years, the Department assumes the proposed regulations would necessitate an ongoing increase, above the baseline year, in recordkeeping costs. Specifically, at the LEA level, the Department estimates that recordkeeping would require 1 additional hour each from the Title IX Coordinator and an administrative assistant; at the IHE level, 1 additional hour from the Title IX Coordinator and 5 hours from an administrative assistant; and at other recipients, 1 additional hour each from the Title IX Coordinator and an administrative assistant. In total, the Department estimates the ongoing recordkeeping burden to increase by approximately $5,382,570 per year.
The Department seeks comment on these estimates, particularly whether they accurately reflect the likely changes in annual burden on recipients associated with the proposed changes to § 106.8(f).
The Department's proposed regulations would require a recipient to ensure that its Title IX Coordinator monitors the recipient's education program or activity for barriers to reporting sex discrimination and that the recipient take steps reasonably calculated to address such barriers. Although a recipient is neither required to nor prohibited from monitoring its environment for these barriers under the current regulations, the Department assumes that many recipients, particularly IHEs, currently monitor their education programs or activities for such barriers to avoid potential legal liability because barriers to reporting limit a recipient's ability to ensure that its education program or activity is operating free from sex discrimination. The Department also assumes that Title IX Coordinators are motivated to proactively identify and address sex discrimination in the recipient's education program or activity. Although some recipients may need to create new mechanisms to monitor their environments, the Department believes that many of these recipients will select options with de minimis costs, such as incorporating questions designed to elicit information from students and employees about barriers to reporting into existing training materials, incorporating such questions into conversations with students, employees, and others during roundtable discussions or listening sessions with interested stakeholders, or through other means. The Department similarly assumes that the steps a recipient would need to take to remove these barriers, should they be identified, would likely have a de minimis cost as well (
In addition to the changes explained in the discussion of Cost Estimates (Section 4.C) that are estimated to have costs, there are several proposed changes that the Department does not anticipate would generate costs for regulated entities above and beyond general costs described previously. The Department believes it is important to discuss some of these proposed changes to clarify the basis for that assumption and ensure that the public has an adequate opportunity to review and comment on the Department's analysis.
Although the current regulations specifically prohibit discrimination against students and employees based on pregnancy, childbirth, termination of pregnancy, and recovery, the Department proposes revising the regulations to clarify that a recipient may not discriminate based on pregnancy or related conditions, including lactation. The Department also proposes revisions to the regulations that would require a recipient to provide a lactation space for students and employees and reasonable modifications for students and break time for employees to enable use of the space as needed. Specifically, proposed § 106.40(b)(3)(iv) would require a recipient to “[e]nsure the availability of a lactation space, which must be a space other than a bathroom, that is clean, shielded from view, free from intrusion from others, and may be used by a student for expressing breast milk or breastfeeding as needed.” Similarly, proposed § 106.57(e) would require a recipient to provide “reasonable break
The Department does not anticipate significant cost to recipients based on this proposed revision. Although it is possible that the proposed regulations' clarification that a lactation space must be available for both students and employees may result in an increase in demand for a such a space, it is the Department's tentative view that any such increase would likely result in a de minimis impact on costs as distributed over all recipients over time. The Department posits this for several reasons.
First, although it is unknown how many recipients presently offer lactation space for students or employees due to a lack of data, all or virtually all recipients are already required to comply with provisions for lactation time and space for employees covered under the Affordable Care Act's amendments to Section 7 of the Fair Labor Standards Act (FLSA).
Second, some States also require a recipient either to provide lactation space to employees or to make reasonable attempts to do so.
In addition, for some recipients, lactation space and break times may be the subject of local laws or separate employment agreements, such as collective bargaining agreements. Some recipients may simply provide lactation space and break time voluntarily. In short, the Department anticipates that its proposed regulations would impose de minimis cost on a recipient that is already providing lactation space and breaks to its staff.
The Department acknowledges that in some cases, the proposed regulations may result in increased demand for lactation space or break time. It is difficult to quantify the extent to which demand might increase or how demand might vary over time as the Department is not aware of any available data source that tracks the numbers of students or employees in need of lactation space. The Department anticipates that demand would vary across recipients, based on the composition of the student and employee population at any time, further reducing the impact to individual recipients.
When a recipient already has a lactation space, the Department anticipates that it is likely that the space would meet the Department's proposed requirements for the reasons already discussed. In addition, because a lactation space is only in use by any given person for a limited period of time, it is possible that many recipients already have sufficient capacity to accommodate additional users; however, the Department anticipates that a recipient that does not currently provide lactation space would be able to comply with the proposed regulations using existing space at minimal cost. For example, the proposed regulations do not require that a lactation space be of a particular size, shape, or include particular features other than being private and clean. Similarly, the Department anticipates that a recipient that currently provides lactation space would already have a system in place to administer use of the space (for example, through a sign-up system) to the extent needed and that this could be adapted to accommodate new demand with minimal cost.
With respect to the Department's proposed requirement that a recipient provide its employees with reasonable break time for lactation, the Department also anticipates that any increased demand could be managed through an existing system for coverage of employees who require brief breaks for other reasons. This is more likely to be necessary for LEA school teachers, whose breaks may require coverage because of the nature of school schedules, rather than employees at IHEs who may not require coverage during breaks needed for lactation because those employees do not typically have supervisory responsibility for children. The Department also recognizes that at some IHEs and other types of recipients, some employees would have access to a private office that is sufficient for lactation needs.
Finally, the Department anticipates that its proposed regulations regarding lactation time and space would also likely improve the recipient's retention of its students and employees. For example, a student parent may be more comfortable remaining in an education program or activity in which the recipient is reducing barriers to remaining in school during the early months and years of a child's life. Likewise, an employee who has access to sufficient lactation time and space may also be more likely to return to the workplace or return earlier from parental leave than one who does not have such access because the employee knows that they can continue to breastfeed after returning to work. For these reasons, the Department submits that this provision, as proposed, would impose de minimis costs and would provide important benefits in terms of eliminating sex-based barriers to education and employment.
The Department does not anticipate significant cost to a recipient based on proposed § 106.40(b)(3)(ii) and (4), which would require that a recipient provide a student the option of reasonable modifications because of the student's “pregnancy or related conditions” as defined by proposed § 106.2, because this requirement is similar to OCR's previous discussion of a recipient's obligations in this context. U.S. Dep't of Educ., Office for Civil Rights, Supporting the Academic Success of Pregnant and Parenting Students Under Title IX of the Education Amendments of 1972 at 9 (June 2013) (2013 Pregnancy Pamphlet),
OCR's 2013 Pregnancy Pamphlet clarified that to “ensure a pregnant student's access to its educational program, when necessary, a school must make adjustments to the regular program that are reasonable and responsive to the student's temporary pregnancy status. For example, a school might be required to provide a larger desk, allow frequent trips to the bathroom, or permit temporary access to elevators.” 2013 Pregnancy Pamphlet at 9. As the requirement for reasonable modifications because of pregnancy or related conditions builds upon the former “reasonable and responsive” standard and sets a clearer framework for how to assess what must be provided, the Department does not anticipate that the required steps for compliance with the proposed “reasonable modifications because of pregnancy or related conditions” standard under proposed § 106.40(b)(4) would be more costly than under the prior OCR interpretation of a recipient's duties.
The Department does not anticipate significant cost to a recipient above and beyond the general costs described in the discussion of Costs of the Proposed Regulations (Section 4), to comply with proposed §§ 106.31(a)(2) and 106.41(b)(2). Proposed § 106.31(a)(2) would clarify that even in the discrete, limited settings in which a recipient may impose different treatment or separate students on the basis of sex, a recipient must not do so in a manner that subjects a person to more than de minimis harm, unless otherwise permitted by Title IX or the Title IX regulations. Proposed § 106.31(a)(2) also would clarify that adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity causes more than de minimis harm. As described in the discussion of Coverage of All Forms of Sex Discrimination (Section IV), the proposed regulations' prohibition on preventing a person from participating in an education program or activity consistent with their gender identity is consistent with the analysis of Federal courts that have addressed how Title IX protects students from discrimination based on sex stereotypes and gender identity. Some stakeholders have expressed concern about costs associated with permitting students to participate in certain education programs or activities consistent with their gender identity. Compliance with proposed § 106.31(a)(2) may require
The Department notes that some costs associated with proposed § 106.31(a)(2) may be addressed elsewhere in the RIA. For instance, to the extent that a recipient's failure to comply with proposed § 106.31(a)(2) would lead to additional investigations of alleged discrimination, those costs are addressed in the discussion of costs associated with the proposal to clarify Title IX's coverage of gender identity discrimination. Similarly, to the extent that a recipient would take steps to train employees or students on gender identity discrimination, those costs are addressed in the discussion of costs associated with training. As this is an evolving area of the law, the Department anticipates there may be some costs associated with potential litigation.
The Department acknowledges that these assumptions are uncertain, and requests comment on anticipated changes associated with compliance with proposed § 106.31(a)(2), along with information on any costs associated with such changes.
The Department reviewed and assessed various alternatives prior to issuing the proposed regulations, drawing from internal sources, as well as feedback OCR received in connection with the June 2021 Title IX Public Hearing, numerous listening sessions, and the meetings held in 2022 under Executive Order 12866. In particular, the Department considered the following alternative actions: (1) leaving the current regulations without amendment; (2) rescinding the current regulations in their entirety and reissuing past guidance, including U.S. Dep't of Educ., Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties at 3, noticed at 66 FR 5512 (Jan. 19, 2001) (rescinded upon effective date of 2020 amendments, Aug. 14, 2020),
The Department believes a combination of (4) and (5), which involves issuing proposed amendments, is the better alternative. The combination of these alternatives would mean amending the current regulations to make noteworthy adjustments that would better achieve the objectives of the statute, are consistent with recent case law, and account for the feedback OCR received in connection with its June 2021 Title IX Public Hearing, numerous listening sessions, and the meetings held in 2022 under Executive Order 12866. Based on its internal review, the Department's current view is that the current regulations may not fully address all forms of sex discrimination in a recipient's education program or activity or offer sufficient safeguards to reduce—and ultimately remove—sex discrimination in the educational setting. The approach adopted in the 2020 amendments may have created a gap in implementing Title IX's prohibition on sex discrimination: a recipient may have information about possible sex discrimination in its education program or activity and yet may have no obligation to take any action to address it if a formal complaint is not filed and the recipient's Title IX Coordinator determines that the allegations do not warrant overriding a complainant's wishes and initiating a complaint. Numerous stakeholders shared their concerns with the Department, specifically that certain requirements in the current regulations may impede a recipient from taking prompt and effective action in response to allegations of sexual harassment in the recipient's education program or activity. By creating extensive obligations related only to certain forms of sexual harassment and leaving a recipient's obligations with respect to the necessary grievance procedures to respond to other forms of sex-based harassment and sex discrimination unaddressed, the current regulations may have created a risk that Title IX's prohibition on sex discrimination would be underenforced. In addition, it is the Department's tentative view that greater clarity is required than what is in the current regulations with respect to the scope of sex discrimination, including with respect to discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. The Department is concerned that equal access to a recipient's education program or activity free from sex discrimination may be impaired absent this clarity.
For reasons explained in the RIA as well as throughout the preamble, and in light of stakeholder feedback received in 2021 and 2022, alternative (1) was not a reasonable option. Alternatives (2) and (3) were rejected because the Department continues to believe that it is necessary to establish, through regulations, the legal obligations of a recipient to ensure that its education program or activity is free from all forms of sex discrimination; guidance documents, which are not legally binding on a recipient, would not serve that function.
After careful consideration of these alternatives, the Department proposes that adopting alternatives (4) and (5) to
In addition to reviewing stakeholder feedback, the Department considered alternatives to the proposed regulations based upon its internal analysis of the costs and benefits of various options.
During its review of various alternatives to the proposed regulations, the Department considered whether to clarify and define the scope of Title IX. Specifically, although the current regulations define sexual harassment, they do not clarify the scope of Title IX's prohibition on sex discrimination. The Department considered several options to address this area and chose to specify in the proposed regulations that Title IX's prohibition on sex discrimination includes discrimination on the basis of pregnancy or related conditions, sex stereotypes, sex characteristics, sexual orientation, and gender identity. Although the Department recognizes that clarifying the scope of Title IX could result in increased costs to recipients, especially those recipients that limited the application of their Title IX policies to those forms of conduct explicitly referenced in the current regulations, the Department believes that the non-monetary benefits of providing clarity and recognizing the broad scope of Title IX's protections outweighs the costs associated with the implementation of these robust protections.
The Department also considered retaining the current regulations' scope of coverage with respect to conduct that occurs off-campus and off school grounds. Numerous stakeholders in OCR's June 2021 Title IX Public Hearing, OCR's listening sessions, and the meetings held in 2022 under Executive Order 12866 requested that the Department explicitly include additional instances of off-campus conduct within the scope of its proposed regulations. Specifically, these stakeholders commented that excluding such conduct denied students, employees, and others equal access to a recipient's education program or activity and failed to fully implement Title IX. As explained in greater detail in the discussion of investigations and adjudications in Cost Estimates (Section 4.C), the Department acknowledges the potential cost increase for a recipient in addressing discrimination that occurs off-campus and also in addressing a hostile environment within the recipient's education program or activity that arises in part from sex-based harassment that occurs off-campus. However, the Department expects that many recipients are already addressing such conduct and incurring related costs through their creation and implementation of alternative disciplinary proceedings to address discriminatory conduct previously addressed through their Title IX procedures prior to the current regulations. Moreover, the Department now believes that the conduct excluded from the current regulations may have profound and long-lasting economic impacts on students, employees, a recipient's educational environment, and the general public and that the benefits of addressing this conduct through the proposed regulations far outweighs any associated costs.
The Department also considered whether to distinguish between educational levels in the proposed regulations. Specifically, during the June 2021 Title IX Public Hearing, in listening sessions, and during the meetings held in 2022 under Executive Order 12866, stakeholders associated with LEAs expressed concerns that certain requirements in the current regulations impeded their ability to successfully address sexual harassment in their day-to-day school environment. Likewise, the Department considered whether all students and employees should remain subject to identical regulations or whether, for the reasons set out in the preamble, equitable treatment under Title IX would be best ensured by amending the regulations in ways that require IHEs to be responsive to the unique needs of their students. For reasons explained in the discussions of Benefits of the Proposed Regulations (Section 3) and Costs of the Proposed Regulations (Section 4), the Department is unable to quantify the benefits or costs of enabling recipients to adapt equitable grievance procedures to their educational environment; however, as discussed throughout the preamble, the Department believes that not doing so would result in continuing impediments to full implementation of Title IX's nondiscrimination guarantee. Alternatively, the Department believes that the proposed regulations create the benefit of enabling all recipients to respond promptly and equitably to sex discrimination in their program or activity, remedy that discrimination as appropriate, and increase access and the opportunity to participate free from sex discrimination.
As required by OMB Circular A-4, the following table is the Department's accounting statement showing the classification of the expenditures associated with the provisions of the proposed regulations. This table provides the Department's best estimate of the changes in annual monetized costs, benefits, and transfers as a result of the proposed regulations.
Executive Order 12866 and the Presidential memorandum “Plain Language in Government Writing” require each agency to write regulations that are easy to understand. The Secretary invites comments on how to make the proposed regulations easier to understand, including answers to questions such as the following:
• Are the requirements in the proposed regulations clearly stated?
• Do the proposed regulations contain technical terms or other wording that interferes with their clarity?
• Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?
• Would the proposed regulations be easier to understand if the Department divided them into more (but shorter) sections? (A “section” is preceded by the symbol “§” and a numbered heading; for example, is § 106.8 Designation of coordinator, adoption and publication of nondiscrimination policy and grievance procedures, notice of nondiscrimination, training, and recordkeeping.)
• Could the description of the proposed regulations in the
• What else could the Department do to make the proposed regulations easier to understand?
To send any comments that concern how the Department could make the proposed regulations easier to understand, see the instructions in the
This analysis, required by the Regulatory Flexibility Act (RFA), presents an estimate of the effect of the proposed regulations on small entities. The U.S. Small Business Administration (SBA) Size Standards define “proprietary IHEs” as small businesses if they are independently owned and operated, are not dominant in their field of operation, and have total annual revenue below $7,000,000. “Nonprofit institutions” are defined as small entities if they are independently owned and operated and not dominant in their field of operation. “Public institutions and LEAs” are defined as small organizations if they are operated by a government overseeing a population below 50,000.
As explained in the discussion of Lack of Data Following the Promulgation of the 2020 Amendments (Section 4.A.3) of the RIA, there is a lack of high quality, comprehensive data about recipients' Title IX compliance activities and burdens following the implementation of the 2020 amendments. As a result, the Department could not definitively conclude that burdens on small entities, particularly among recipients other than IHEs or LEAs, would be sufficiently low to justify certification under the RFA. If an agency is unable to make such a certification, it must prepare an Initial Regulatory Flexibility Analysis (IRFA) as described in the RFA. Based on the data available, the Department has completed an IRFA and requests comments from affected small entities.
The purpose of this analysis is to identify the number of small entities affected, assess the economic impact of the proposed regulations on those small entities, and consider alternatives that may be less burdensome to small entities that meet the Department's regulatory objectives. Specifically, the Department estimates the number of small entities potentially impacted by the proposed regulations in the discussion of Estimated Number of Small Entities (Section 2.B), assesses the potential economic impact of the proposed regulations on those small entities in the discussion of Estimate of the Projected Burden of the Proposed Regulations on Small Entities (Section 2.C), and examines and considers less burdensome alternatives to the proposed regulations for small entities in the Discussion of Significant Alternatives (Section 2.D). The Department requests comment on the burdens currently faced by small entities in complying with the 2020 amendments and likely changes to that burden as a result of the proposed regulations, including the total number of Title IX investigations conducted each year by small entities and the extent to which the burden assumptions described in the RIA are reasonable for small entities (
The Department's review of the current regulations and of feedback received during and pursuant to the June 2021 Title IX Public Hearing, as well as listening sessions and meetings held in 2022 under Executive Order 12866, suggests that the current regulations do not best fulfill the requirement of Title IX that recipients of Federal financial assistance eliminate discrimination based on sex in their education programs or activities. The Department has determined that more clarity and greater specificity would better equip recipients to create and maintain school environments free from sex discrimination. This, in turn, will help recipients ensure that all persons have equal access to educational opportunities in accordance with Title IX's nondiscrimination mandate.
The goal of the Department's proposed regulations is to fully effectuate Title IX by clarifying and specifying the scope and application of Title IX protections and recipients' obligation not to discriminate based on
As in the 2020 amendments (85 FR 30026), for purposes of assessing the impacts on small entities, the Department proposes defining a “small IHE” as a two-year IHE with an enrollment of fewer than 500 full time equivalent (FTE) or a four-year IHE with an enrollment of fewer than 1,000 FTE. The Department also proposes defining a “small LEA” as an LEA with annual revenues of less than $7,000,000.
During the 2020-2021 school year, of the 6,165 Title IV participating IHEs for which sufficient data are available, 2,803 were four-year institutions, 1,644 were two-year institutions, and 1,718 were less-than-two-year institutions. Of those, 1,226 four-year institutions, 690 two-year institutions, and 1,650 less-than-two-year institutions met the Department's proposed definition of a “small IHE.”
During the 2018-2019 school year, 6,518 of the 17,798 LEAs with available revenue data met the Department's proposed definition of a “small LEA.”
The Department does not have comprehensive revenue data for other recipients in order to estimate the number of entities that would meet the applicable SBA size standards. The Department therefore requests comment on the number of other recipients affected by these proposed regulations that meet these standards.
As discussed throughout the RIA, Group A institutions are those most likely to see a net cost increase from the proposed regulations. As such, a Group A IHE would fare worse than an IHE in Group B or Group C. As described in the discussion of Developing the Model (Section 4.B), an IHE in Group A would see a net increase in costs of approximately $8,986 per year. For purposes of assessing the impacts on small entities, the Department proposes defining a “small IHE” as a two-year IHE with an enrollment of less than 500 FTE or a four-year IHE with an enrollment of less than 1,000 FTE, based on official 2020 FTE enrollment. The Department notes that this estimate assumes that each small IHE would conduct the same number of investigations per year, on average, as the total universe of all affected IHEs. The Department believes it is much more likely that small IHEs will conduct fewer investigations per year and therefore, their actual realized costs will be less than those estimated herein. According to data from the Integrated Postsecondary Education Data System (IPEDS), in FY 2019, small IHEs had, on average, total revenues of approximately $10,349,540.
As in the 2020 amendments, for purposes of assessing the impacts on small entities, the Department proposes defining a “small LEA” as one with annual revenues of less than $7,000,000. Based on the model described in the discussion of Developing the Model (Section 4.B), an LEA in Group A would see a net increase in costs of approximately $1,761 per year. The Department notes that these estimates assume small LEAs conduct the same number of investigations per year, on average, as all other LEAs. To the extent that smaller LEAs conduct fewer investigations, on average, than all LEAs, these annual costs will be overestimated for small LEAs. In 2018-2019, small LEAs had an average total revenue of approximately $3,450,911.
As described in the discussion of Developing the Model (Section 4.B), an “other” recipient in Group A would see a net increase in costs of approximately $3,090 per year. As explained in the discussion of small IHEs and small LEAs, the Department notes that these estimates assume small other entities would conduct the same number of investigations per year, on average, as all other recipients in this category. To the extent that smaller entities conduct fewer investigations on average than all other recipients, these annual costs will be overestimated for small other recipients. Although the Department does not have revenue data for all other recipients, for purposes of this analysis, the Department will assume that, among other recipients with annual revenues of less than $7,000,000, the average annual revenue is approximately $3,500,000, which assumes that recipient revenues are normally distributed within the range of $0 to $7,000,000. At this level, the estimated cost would constitute approximately 0.09 percent of total revenues. The Department notes that, for estimated costs to exceed 1 percent of total revenues, “other” recipients would need total annual revenues of less than $309,000. The Department believes that very few other recipients would fall into this category, in part, because in FY 2020, among other recipients receiving less than $1,000,000 in grant funds from the Department, the average grantee received approximately $377,000 in Federal grant funds. Among those receiving less than $500,000 in funding from the Department, the average other recipient received approximately $287,000 in grant funds in FY 2020. Even with very small amounts of non-Federal funding, it is unlikely that costs of compliance with these proposed regulations would exceed 1 percent of annual revenues for these recipients. The Department, therefore, does not expect that these proposed regulations would place a substantial burden on small other recipients.
The Department requests comment on any additional burdens for small entities. The Department also requests comment on whether small entities may discontinue their Federal funding due to the impacts of the proposed regulations.
The Department also considered alternatives that could potentially reduce the burden for small entities. One alternative would be to extend the effective date of the Title IX regulations for small entities such that they would have additional time to implement key components of the regulations. However, it would be premature for the Department to consider an extension at this juncture because no regulatory compliance date has been set. In addition, an extension of the effective date would delay the efforts of small entities to ensure that their education programs or activities are free from sex discrimination, thereby depriving students, employees, and others of their rights under Title IX. Another alternative would be to waive certain requirements for small entities to help facilitate their compliance with Title IX. The Department declines this approach at this time because the proposed requirements are critical to ensuring that all education programs or activities that receive Federal funding do not discriminate based on sex. In addition, the proposed regulations are more adaptable than the current regulations and would provide greater opportunities for small entities to tailor their compliance efforts to their particular settings. Finally, the Department considered proposing different requirements for smaller-sized recipients than for mid-sized or larger ones. The Department rejects this alternative at this time because the Title IX rights of students, employees, and other members of a recipient's educational community do not depend on the size of a recipient, and the proposed regulations are sufficiently adaptable for small entities to adopt the approach that works best for them. Being subjected to sex discrimination in a recipient's education program or activity can affect an applicant's opportunity to enroll in a recipient's education program or activity, a student's ability to learn and thrive in and outside of the classroom, a prospective or current employee's ability to contribute their talents to the recipient's educational mission, and the opportunity of all participants to benefit, on an equal basis, from the recipient's education program or activity. Thus, permitting a small entity the opportunity to delay implementation of the proposed regulations, waiving certain requirements for smaller entities, or having different requirements for small entities could jeopardize these important civil rights and harm students, employees, and others. The Department requests comment on the extent to which the Department's rationale for not adopting each of the alternatives discussed in this section is reasonable and whether there are additional alternatives for reducing burden on small entities without frustrating the purpose of the proposed regulations.
Under Executive Order 12250, the Attorney General has the responsibility to “review . . . proposed rules . . . of the Executive agencies” implementing nondiscrimination statutes such as Title IX “in order to identify those which are inadequate, unclear or unnecessarily inconsistent.”
As part of its continuing effort to reduce paperwork and the burden of responding, the Department provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This requirement helps ensure that: (1) the public understands the Department's collection instructions; (2) respondents can provide the requested data in the desired format; (3) reporting burden (time and financial resources) is minimized; (4) collection instruments are clearly understood; and (5) the Department can properly assess the
As discussed in Cost Estimates (Section 4.C.), the Department estimates that all regulated entities would experience an increased recordkeeping burden under the proposed regulations as a result of the proposed changes to recordkeeping requirements in proposed § 106.8(f). Specifically, in Year 1, the Department estimates that compliance would require an additional 4 hours of recordkeeping burden per LEA, 16 hours per IHE, and 4 hours per other recipient. In total, the Department estimates the Year 1 recordkeeping burden associated with the proposed regulations to be a net increase of 171,788 hours.
In subsequent years, the Department estimates that the proposed regulations would require an additional ongoing burden of 2 hours per LEA, 6 hours per IHE, and 2 hours per other recipient. In total, the Department estimates an ongoing annual recordkeeping burden increase of 72,586 hours. However, the Department's current view is that proposed § 106.8(f) will not result in a change of disclosure requirements. Specifically, there are three main reasons for this assumption: (1) recipients were already required to maintain all records related to sexual harassment under the current regulations; (2) many recipients (based on anecdotal reports) were already conducting and maintaining records related to alternative disciplinary proceedings addressing conduct outside of the coverage area of the current regulations; and (3) based upon anecdotal reports, many recipients were already maintaining their records related to sex discrimination. As a result, the Department believes that recipients falling within one or more of these categories would experience a de minimis increase in the number of disclosures.
The Department prepared an Information Collection Request (ICR) for this collection. This proposed collection is identified as proposed collection OMB control number 1870-NEW. If you would like to review and comment on the ICR, please follow the instructions listed below in this section of this document. Please note that the Office of Information and Regulatory Affairs (OIRA) and the Department of Education review all comments posted at
When commenting on the information collection requirements, the Department considers your comments on these collections of information in—
• Deciding whether the collections are necessary for the proper performance of our functions, including whether the information will have practical use;
• Evaluating the accuracy of our estimate of the burden of the collections, including the validity of our methodology and assumptions;
• Enhancing the quality, usefulness, and clarity of the information the Department collects; and
• Minimizing the burden on those who must respond, which includes exploring the use of appropriate automated, electronic, mechanical, or other technological collection techniques.
Comments submitted in response to this document should be submitted electronically through the Federal eRulemaking Portal
Consistent with 5 CFR 1320.8(d), the Department is soliciting comments on the information collection through this document. OMB is required to make a decision concerning the collections of information contained in the proposed regulations between 30 and 60 days after publication of this document in the
You may also access documents of the Department published in the
Civil rights, Education, Sex discrimination, Youth organizations.
For the reasons discussed in the preamble, the Department of Education proposes to revise 34 CFR part 106 to read as follows:
20 U.S.C. 1681
The purpose of this part is to effectuate Title IX, which is designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance, whether or not such program or activity is offered or sponsored by an educational institution as defined in this part. This part is also intended to effectuate section 844 of the Education Amendments of 1974, Public Law 93-380, 88 Stat. 484.
As used in this part, the term:
(1) A student or employee who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX; or
(2) A person other than a student or employee who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX and who was participating or attempting to participate in the recipient's education program or activity when the alleged sex discrimination occurred.
(1) An employee of a recipient whose communications are privileged under Federal or State law associated with their role or duties for the institution;
(2) An employee of a recipient whom the recipient has designated as a confidential resource for the purpose of providing services to persons in connection with sex discrimination—but if the employee also has a role or duty not associated with providing these services, the employee's status as confidential is limited to information received about sex discrimination in connection with providing these services; or
(3) An employee of a postsecondary institution who is conducting an Institutional Review Board-approved human-subjects research study designed to gather information about sex discrimination—but the employee's confidential status is limited to information received while conducting the study.
(1) A grant or loan of Federal financial assistance, including funds made available for:
(i) The acquisition, construction, renovation, restoration, or repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity.
(2) A grant of Federal real or personal property or any interest therein, including surplus property, and the proceeds of the sale or transfer of such property, if the Federal share of the fair market value of the property is not, upon such sale or transfer, properly accounted for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at nominal consideration, or at consideration reduced for the purpose of assisting the recipient or in recognition of public interest to be served thereby, or permission to use Federal property or any interest therein without consideration.
(5) Any other contract, agreement, or arrangement which has as one of its purposes the provision of assistance to any education program or activity, except a contract of insurance or guaranty.
(1) Offers academic study beyond the bachelor of arts or bachelor of science degree, whether or not leading to a certificate of any higher degree in the liberal arts and sciences; or
(2) Awards any degree in a professional field beyond the first
(3) Awards no degree and offers no further academic study, but operates ordinarily for the purpose of facilitating research by persons who have received the highest graduate degree in any field of study.
(1) An institution offering at least two but less than four years of college level study beyond the high school level, leading to a diploma or an associate degree, or wholly or principally creditable toward a baccalaureate degree; or
(2) An institution offering academic study leading to a baccalaureate degree; or
(3) An agency or body which certifies credentials or offers degrees, but which may or may not offer academic study.
(1) A biological parent;
(2) An adoptive parent;
(3) A foster parent;
(4) A stepparent;
(5) A legal custodian or guardian;
(6) In loco parentis with respect to such a person; or
(7) Actively seeking legal custody, guardianship, visitation, or adoption of such a person.
(1) Pregnancy, childbirth, termination of pregnancy, or lactation;
(2) Medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation; or
(3) Recovery from pregnancy, childbirth, termination of pregnancy, lactation, or their related medical conditions.
(1)(i) A department, agency, special purpose district, or other instrumentality of a State or local government; or
(ii) The entity of a State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 8801), system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, other private organization, or an entire sole proprietorship—
(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) Any other entity that is established by two or more of the entities described in paragraph (1), (2), or (3) of this definition, any part of which is extended Federal financial assistance.
(1)
(2)
(i) The degree to which the conduct affected the complainant's ability to access the recipient's education program or activity;
(ii) The type, frequency, and duration of the conduct;
(iii) The parties' ages, roles within the recipient's education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the alleged unwelcome conduct;
(iv) The location of the conduct, the context in which the conduct occurred, and the control the recipient has over the respondent; and
(v) Other sex-based harassment in the recipient's education program or activity.
(3)
(ii) Dating violence meaning violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim;
(iii) Domestic violence meaning felony or misdemeanor crimes of violence committed by a person who:
(A) Is a current or former spouse or intimate partner of the victim under the family or domestic violence laws of the jurisdiction of the recipient, or a person similarly situated to a spouse of the victim;
(B) Is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner;
(C) Shares a child in common with the victim; or
(D) Commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the jurisdiction; or
(iv) Stalking meaning engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
(A) Fear for the person's safety or the safety of others; or
(B) Suffer substantial emotional distress.
(1) Restore or preserve that party's access to the recipient's education program or activity, including temporary measures that burden a respondent imposed for non-punitive and non-disciplinary reasons and that are designed to protect the safety of the complainant or the recipient's educational environment, or deter the respondent from engaging in sex-based harassment; or
(2) Provide support during the recipient's grievance procedures under § 106.45, and if applicable § 106.46, or during the informal resolution process under § 106.44(k).
The revisions read as follows:
(b)
(e)
(g)
(a)
(2)
(b)
(2)
(c)
(1)
(i) A statement that the recipient does not discriminate on the basis of sex and prohibits sex discrimination in any education program or activity that it operates, as required by Title IX and this part, including in admission (unless subpart C of this part does not apply) and employment;
(ii) A statement that inquiries about the application of Title IX and this part to the recipient may be referred to the recipient's Title IX Coordinator, to the Office for Civil Rights, or to both;
(iii) The name or title, office address, email address, and telephone number of the recipient's Title IX Coordinator;
(iv) How to locate the recipient's nondiscrimination policy under paragraph (b)(1) of this section; and
(v) How to report information about conduct that may constitute sex discrimination under Title IX, how to make a complaint of sex discrimination under this part, and how to locate the recipient's grievance procedures under paragraph(b)(2) of this section, § 106.45, and if applicable § 106.46.
(2)
(ii) If necessary, due to the format or size of any publication under paragraph (c)(2) of this section, the recipient may instead comply with paragraph (c)(2) of this section by including in those publications a statement that the recipient prohibits sex discrimination in any education program or activity that it operates and that individuals may report concerns or questions to the Title IX Coordinator, and providing the location of the notice on the recipient's website.
(iii) A recipient must not use or distribute a publication stating that the recipient treats applicants, students, or employees differently on the basis of sex, except as such treatment is permitted by Title IX or this part.
(d)
(1)
(i) The recipient's obligation to address sex discrimination in its education program or activity;
(ii) The scope of conduct that constitutes sex discrimination under this part, including the definition of sex-based harassment; and
(iii) All applicable notification and information requirements under §§ 106.40(b)(2) and 106.44.
(2)
(i) The recipient's obligations under § 106.44;
(ii) The recipient's grievance procedures under § 106.45, and if applicable § 106.46;
(iii) How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias; and
(iv) The meaning and application of the term relevant in relation to questions and evidence, and the types of evidence that are impermissible regardless of relevance under § 106.45, and if applicable § 106.46.
(3)
(4)
(e)
(f)
(1) For each complaint of sex discrimination, records documenting the informal resolution process under § 106.44(k) or the grievance procedures under § 106.45, and if applicable § 106.46, and the resulting outcome.
(2) For each incident of conduct that may constitute sex discrimination under Title IX of which the Title IX Coordinator was notified, records documenting the actions the recipient took to meet its obligations under § 106.44.
(3) All materials used to provide training under paragraph (d) of this section. A recipient must make these training materials publicly available on its website, or if the recipient does not maintain a website the recipient must make these materials available upon request for inspection by members of the public.
(4) All records documenting the actions the recipient took to meet its obligations under §§ 106.40 and 106.57.
Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
Except as provided in this subpart, this part applies to every recipient and to all sex discrimination occurring under a recipient's education program or activity in the United States. For purposes of this section, conduct that occurs under a recipient's education program or activity includes but is not limited to conduct that occurs in a building owned or controlled by a student organization that is officially recognized by a postsecondary institution, and conduct that is subject to the recipient's disciplinary authority. A recipient has an obligation to address a sex-based hostile environment under its education program or activity, even if sex-based harassment contributing to the hostile environment occurred outside the recipient's education program or activity or outside the United States.
(b)
(a)
(c)
(1) Must treat pregnancy or related conditions or any temporary disability resulting therefrom in the same manner and under the same policies as any other temporary disability or physical condition; and
(2) Must not:
(i) Adopt or apply any policy, practice, or procedure concerning the current, potential, or past parental, family, or marital status of a student or applicant that treats persons differently on the basis of sex;
(ii) Discriminate against any person on the basis of current, potential, or past pregnancy or related conditions, or establish or follow any policy, practice, or procedure that so discriminates; and
(iii) Make pre-admission inquiry as to the marital status of an applicant for admission, including whether such applicant is “Miss or Mrs.” A recipient may ask an applicant to self-identify their sex, but only if this question is asked of all applicants and if the response is not used as a basis for discrimination prohibited by this part.
(a)
(2) In the limited circumstances in which Title IX or this part permits different treatment or separation on the basis of sex, a recipient must not carry out such different treatment or separation in a manner that discriminates on the basis of sex by subjecting a person to more than de minimis harm, unless otherwise permitted by Title IX or this part. Adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person's gender identity subjects a person to more than de minimis harm on the basis of sex.
(3) This subpart does not apply to actions of a recipient in connection with admission of its students to an education program or activity of:
(i) A recipient to which subpart C does not apply; or
(ii) An entity, not a recipient, to which subpart C would not apply if the entity were a recipient.
(a)
(b)
(2)
(3)
(i) Inform the student, and if applicable the person who notified the Title IX Coordinator, of the recipient's obligations to:
(A) Prohibit sex discrimination under this part, including sex-based harassment;
(B) Provide the student with the option of reasonable modifications to the recipient's policies, practices, or procedures because of pregnancy or
(C) Allow access, on a voluntary basis, to any separate and comparable portion of the recipient's education program or activity under paragraph (b)(1) of this section;
(D) Allow a voluntary leave of absence under paragraph (b)(3)(iii) of this section;
(E) Ensure the availability of lactation space under paragraph (b)(3)(iv) of this section; and
(F) Maintain grievance procedures that provide for the prompt and equitable resolution of complaints of sex discrimination, including sex-based harassment, under § 106.45, and if applicable § 106.46.
(ii) Provide the student with voluntary reasonable modifications to the recipient's policies, practices, or procedures because of pregnancy or related conditions, under paragraph (b)(4) of this section.
(iii) Allow the student a voluntary leave of absence from the recipient's education program or activity to cover, at minimum, the period of time deemed medically necessary by the student's physician or other licensed healthcare provider. To the extent that a recipient maintains a leave policy for students that allows a greater period of time than the medically necessary period, the recipient must permit the student to take leave under that policy instead if the student so chooses. Upon the student's return to the recipient's education program or activity, the student must be reinstated to the academic status and, as practicable, to the extracurricular status that the student held when the leave began.
(iv) Ensure the availability of a lactation space, which must be a space other than a bathroom, that is clean, shielded from view, free from intrusion from others, and may be used by a student for expressing breast milk or breastfeeding as needed.
(4)
(i) Must be provided on an individualized and voluntary basis depending on the student's needs when necessary to prevent discrimination and ensure equal access to the recipient's education program or activity, unless the recipient can demonstrate that making the modification would fundamentally alter the recipient's education program or activity. A fundamental alteration is a change that is so significant that it alters the essential nature of the recipient's education program or activity;
(ii) Must be effectively implemented, coordinated, and documented by the Title IX Coordinator; and
(iii) May include but are not limited to breaks during class to attend to related health needs, expressing breast milk, or breastfeeding; intermittent absences to attend medical appointments; access to online or other homebound education; changes in schedule or course sequence; extension of time for coursework and rescheduling of tests and examinations; counseling; changes in physical space or supplies (for example, access to a larger desk or a footrest); elevator access; or other appropriate changes to policies, practices, or procedures.
(5)
(6)
(i) The certified level of physical ability or health is necessary for participation in the class, program, or extracurricular activity;
(ii) The recipient requires such certification of all students participating in the class, program, or extracurricular activity; and
(iii) The information obtained is not used as a basis for discrimination prohibited by this part.
(a)
(b)
(1) Require its Title IX Coordinator to monitor the recipient's education program or activity for barriers to reporting information about conduct that may constitute sex discrimination under Title IX; and
(2) Take steps reasonably calculated to address such barriers.
(c)
(2) All other recipients must, at a minimum, require:
(i) Any employee who is not a confidential employee and who has authority to institute corrective measures on behalf of the recipient to notify the Title IX Coordinator when the employee has information about conduct that may constitute sex discrimination under Title IX;
(ii) Any employee who is not a confidential employee and who has responsibility for administrative leadership, teaching, or advising in the recipient's education program or activity to notify the Title IX Coordinator when the employee has information about a student being subjected to conduct that may constitute sex discrimination under Title IX;
(iii) Any employee who is not a confidential employee and who has responsibility for administrative leadership, teaching, or advising in the recipient's education program or activity and has information about an employee being subjected to conduct that may constitute sex discrimination under Title IX to either:
(A) Notify the Title IX Coordinator when the employee has information about an employee being subjected to conduct that may constitute sex discrimination under Title IX; or
(B) Provide the contact information of the Title IX Coordinator and information about how to report sex discrimination to any person who provides the employee with the information; and
(iv) All other employees who are not confidential employees, if any, to either:
(A) Notify the Title IX Coordinator when the employee has information
(B) Provide the contact information of the Title IX Coordinator and information about how to report sex discrimination to any person who provides the employee with information about conduct that may constitute sex discrimination under Title IX.
(3) A postsecondary institution must make a fact-specific inquiry to determine whether the requirements of paragraph (c)(2) of this section apply to a person who is both a student and an employee of the postsecondary institution. In making this determination, a postsecondary institution must, at a minimum, consider whether the person's primary relationship with the postsecondary institution is to receive an education and whether the person learns of conduct that may constitute sex discrimination under Title IX in the postsecondary institution's education program or activity while performing employment-related work.
(4) The requirements of paragraphs (c)(1) and (2) of this section do not apply when the only employee with information about conduct that may constitute sex discrimination under Title IX is the employee-complainant.
(d)
(2) A recipient must require a confidential employee to explain their confidential status to any person who informs the confidential employee of conduct that may constitute sex discrimination under Title IX and must provide that person with contact information for the recipient's Title IX Coordinator and explain how to report information about conduct that may constitute sex discrimination under Title IX.
(e)
(f)
(1) Treat the complainant and respondent equitably;
(2)(i) Notify the complainant of the grievance procedures under § 106.45, and if applicable § 106.46; and
(ii) If a complaint is made, notify the respondent of the applicable grievance procedures and notify the parties of the informal resolution process under this section if available and appropriate;
(3) Offer and coordinate supportive measures under paragraph (g) of this section, as appropriate, to the complainant and respondent to restore or preserve that party's access to the recipient's education program or activity;
(4) In response to a complaint, initiate the grievance procedures or informal resolution process under § 106.45, and if applicable § 106.46;
(5) In the absence of a complaint or informal resolution process, determine whether to initiate a complaint of sex discrimination that complies with the grievance procedures under § 106.45, and if applicable § 106.46, if necessary to address conduct that may constitute sex discrimination under Title IX in the recipient's education program or activity; and
(6) Take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur within the recipient's education program or activity, in addition to remedies provided to an individual complainant.
(g)
(1) Supportive measures may vary depending on what the recipient deems to be available and reasonable. These measures may include but are not limited to: counseling; extensions of deadlines and other course-related adjustments; campus escort services; increased security and monitoring of certain areas of the campus; restrictions on contact between the parties; leaves of absence; voluntary or involuntary changes in class, work, housing, or extracurricular or any other activity, regardless of whether there is or is not a comparable alternative; and training and education programs related to sex-based harassment.
(2) Supportive measures that burden a respondent may be imposed only during the pendency of a recipient's grievance procedures under § 106.45, and if applicable § 106.46, and must be terminated at the conclusion of those grievance procedures. These measures must be no more restrictive of the respondent than is necessary to restore or preserve the complainant's access to the recipient's education program or activity. A recipient may not impose such measures for punitive or disciplinary reasons.
(3) For supportive measures other than those that burden a respondent, a recipient may, as appropriate, modify or terminate supportive measures at the conclusion of the grievance procedures under § 106.45, and if applicable § 106.46, or at the conclusion of the informal resolution process under paragraph (k) of this section, or the recipient may continue them beyond that point.
(4) A recipient must provide a complainant or respondent affected by a decision to provide, deny, modify, or terminate supportive measures with a timely opportunity to seek modification or reversal of the recipient's decision by an appropriate, impartial employee. The impartial employee must be someone other than the employee who made the decision being challenged and must have authority to modify or reverse the decision, if appropriate. A recipient must make a fact-specific inquiry to determine what constitutes a timely opportunity for seeking modification or reversal of a supportive measure. If the supportive measure burdens the respondent, the initial opportunity to seek modification or reversal of the recipient's decision must be provided before the measure is imposed or, if
(5) A recipient must ensure that it does not disclose information about any supportive measures to persons other than the complainant or respondent unless necessary to provide the supportive measure. A recipient may inform a party of supportive measures provided to or imposed on another party only if necessary to restore or preserve that party's access to the education program or activity.
(6) Under paragraph (f)(3) of this section, the Title IX Coordinator is responsible for offering and coordinating supportive measures.
(7)(i) If the complainant or respondent is an elementary or secondary student with a disability, the Title IX Coordinator must consult with the Individualized Education Program (IEP) team, 34 CFR 300.321, if any, or the group of persons responsible for the student's placement decision under 34 CFR 104.35(c) (Section 504 team), if any, to help ensure the recipient complies with the requirements of the Individuals with Disabilities Education Act, 20 U.S.C. 1400
(ii) If the complainant or respondent is a postsecondary student with a disability, the Title IX Coordinator may consult, as appropriate, with the individual or office that the recipient has designated to provide supports to students with disabilities to help ensure that the recipient complies with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, in the implementation of supportive measures.
(h)
(i)
(j)
(1) When the party, witness, or other participant has provided prior written consent to disclose their identity;
(2) When permitted under the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g, or its implementing regulations, 34 CFR part 99;
(3) As required by law; or
(4) To carry out the purposes of this part, including action taken to address conduct that may constitute sex discrimination under Title IX in the recipient's education program or activity.
(k)
(i) A recipient has discretion to determine whether it is appropriate to offer an informal resolution process when it receives information about conduct that may constitute sex discrimination under Title IX or a complaint of sex discrimination is made, and may decline to offer informal resolution despite one or more of the parties' wishes.
(ii) Circumstances when a recipient may decline to allow informal resolution include but are not limited to when the recipient determines that the alleged conduct would present a future risk of harm to others.
(2) A recipient must not require or pressure the parties to participate in an informal resolution process. The recipient must obtain the parties' voluntary consent to the informal resolution process and must not require waiver of the right to an investigation and adjudication of a complaint as a condition of enrollment or continuing enrollment, or employment or continuing employment, or exercise of any other right.
(3) Before initiation of an informal resolution process, the recipient must provide to the parties notice that explains:
(i) The allegations;
(ii) The requirements of the informal resolution process;
(iii) That, prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and to initiate or resume the recipient's grievance procedures;
(iv) That the parties' agreement to a resolution at the conclusion of the informal resolution process would preclude the parties from initiating or resuming grievance procedures arising from the same allegations;
(v) The potential terms that may be requested or offered in an informal resolution agreement;
(vi) Which records will be maintained and could be shared;
(vii) That if the recipient initiates or resumes its grievance procedures under § 106.45, and if applicable § 106.46, the recipient or a party must not access, consider, disclose, or otherwise use information, including records, obtained solely through an informal resolution process as part of the investigation or determination of the outcome of the complaint; and
(viii) That, when applicable, and if the recipient resumes its grievance procedures, the informal resolution facilitator could serve as a witness for purposes other than providing information obtained solely through the informal resolution process.
(4) The facilitator for the informal resolution process must not be the same person as the investigator or the decisionmaker in the recipient's grievance procedures. Any person designated by a recipient to facilitate an informal resolution process must not
(5) Potential terms that may be included in an informal resolution agreement include but are not limited to:
(i) Restrictions on contact; and
(ii) Restrictions on the respondent's participation in one or more of the recipient's programs or activities or attendance at specific events, including restrictions the recipient could have imposed as remedies or disciplinary sanctions had the recipient determined that sex discrimination occurred under the recipient's grievance procedures.
(a)(1)
(a)(2)
(i) A complainant;
(ii) A person who has a right to make a complaint on behalf of a complainant under § 106.6(g);
(iii) The Title IX Coordinator;
(iv) With respect to complaints of sex discrimination other than sex-based harassment, any student or employee; or third party participating or attempting to participate in the recipient's education program or activity when the alleged sex discrimination occurred.
(b)
(1) Treat complainants and respondents equitably;
(2) Require that any person designated as a Title IX Coordinator, investigator, or decisionmaker not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. The decisionmaker may be the same person as the Title IX Coordinator or investigator;
(3) Include a presumption that the respondent is not responsible for the alleged conduct until a determination whether sex discrimination occurred is made at the conclusion of the recipient's grievance procedures for complaints of sex discrimination;
(4) Establish reasonably prompt timeframes for the major stages of the grievance procedures, including a process that allows for the reasonable extension of timeframes on a case-by-case basis for good cause with notice to the parties that includes the reason for the delay. Major stages include, for example, evaluation (
(5) Take reasonable steps to protect the privacy of the parties and witnesses during the pendency of a recipient's grievance procedures, provided that the steps do not restrict the ability of the parties to obtain and present evidence, including by speaking to witnesses, subject to § 106.71; consult with a family member, confidential resource, or advisor; prepare for a hearing, if one is offered; or otherwise defend their interests;
(6) Require an objective evaluation of all relevant evidence, consistent with the definition of relevant in § 106.2—including both inculpatory and exculpatory evidence—and provide that credibility determinations must not be based on a person's status as a complainant, respondent, or witness; and
(7) Exclude the following types of evidence, and questions seeking that evidence, as impermissible (
(i) Evidence that is protected under a privilege as recognized by Federal or State law, unless the person holding such privilege has waived the privilege voluntarily in a manner permitted in the recipient's jurisdiction;
(ii) A party's records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party, unless the recipient obtains that party's voluntary, written consent for use in the recipient's grievance procedures; and
(iii) Evidence that relates to the complainant's sexual interests or prior sexual conduct, unless evidence about the complainant's prior sexual conduct is offered to prove that someone other than the respondent committed the alleged conduct or is offered to prove consent with evidence concerning specific incidents of the complainant's prior sexual conduct with the respondent. The fact of prior consensual sexual conduct between the complainant and respondent does not demonstrate or imply the complainant's consent to the alleged sex-based harassment or preclude determination that sex-based harassment occurred.
(c)
(1) The notice must include:
(i) The recipient's grievance procedures under this section, and if applicable § 106.46, and any informal resolution process under § 106.44(k);
(ii) Sufficient information available at the time to allow the parties to respond to the allegations. Sufficient information includes the identities of the parties involved in the incident, the conduct alleged to constitute sex discrimination under Title IX, and the date and location of the alleged incident, to the extent that information is available to the recipient; and
(iii) A statement that retaliation is prohibited.
(2) If, in the course of an investigation, the recipient decides to investigate additional allegations about the respondent's conduct toward the complainant that are not included in the notice provided under paragraph (c)(1) of this section or that are included in a complaint that is consolidated under paragraph (e) of this section, the recipient must provide notice of the additional allegations to the parties whose identities are known.
(d)
(i) The recipient is unable to identify the respondent after taking reasonable steps to do so;
(ii) The respondent is not participating in the recipient's education program or activity and is not employed by the recipient;
(iii) The complainant voluntarily withdraws any or all of the allegations in the complaint and the recipient determines that without the complainant's withdrawn allegations,
(iv) The recipient determines the conduct alleged in the complaint, even if proven, would not constitute sex discrimination under Title IX. Prior to dismissing the complaint under this paragraph, the recipient must make reasonable efforts to clarify the allegations with the complainant.
(2) Upon dismissal, a recipient must promptly notify the complainant of the basis for the dismissal. If the dismissal occurs after the respondent has been notified of the allegations, then the recipient must also notify the respondent of the dismissal and the basis for the dismissal promptly following notification to the complainant, or simultaneously if notification is in writing.
(3) A recipient must notify all parties that a dismissal may be appealed, provide any party with an opportunity to appeal its dismissal of a complaint, and must:
(i) Notify the parties when an appeal is filed and implement appeal procedures equally for the parties;
(ii) Ensure that the decisionmaker for the appeal did not take part in an investigation of the allegations or dismissal of the complaint;
(iii) Ensure that the decisionmaker for the appeal has been trained as set out in § 106.8(d)(2);
(iv) Provide the parties a reasonable and equal opportunity to make a statement in support of, or challenging, the outcome; and
(v) Notify all parties of the result of the appeal and the rationale for the result.
(4) A recipient that dismisses a complaint must, at a minimum:
(i) Offer supportive measures to the complainant as appropriate under § 106.44(g);
(ii) For dismissals under paragraphs (d)(1)(iii) or (iv) of this section in which the respondent has been notified of the allegations, offer supportive measures to the respondent as appropriate under § 106.44(g); and
(iii) Require its Title IX Coordinator to take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur within the recipient's education program or activity under § 106.44(f)(6).
(e)
(f)
(1) Ensure that the burden is on the recipient—not on the parties—to conduct an investigation that gathers sufficient evidence to determine whether sex discrimination occurred;
(2) Provide an equal opportunity for the parties to present relevant fact witnesses and other inculpatory and exculpatory evidence;
(3) Review all evidence gathered through the investigation and determine what evidence is relevant and what evidence is impermissible regardless of relevance, consistent with § 106.2 and with paragraph (b)(7) of this section; and
(4) Provide each party with a description of the evidence that is relevant to the allegations of sex discrimination and not otherwise impermissible, as well as a reasonable opportunity to respond.
(g)
(h)
(1) Use the preponderance of the evidence standard of proof to determine whether sex discrimination occurred, unless the recipient uses the clear and convincing evidence standard of proof in all other comparable proceedings, including proceedings relating to other discrimination complaints, in which case the recipient may elect to use that standard of proof in determining whether sex discrimination occurred. Both standards of proof require the decisionmaker to evaluate relevant evidence for its persuasiveness; if the decisionmaker is not persuaded under the applicable standard by the evidence that sex discrimination occurred, whatever the quantity of the evidence is, the decisionmaker should not determine that sex discrimination occurred.
(2) Notify the parties of the outcome of the complaint, including the determination of whether sex discrimination occurred under Title IX, and the procedures and permissible bases for the complainant and respondent to appeal, if applicable;
(3) If there is a determination that sex discrimination occurred, as appropriate, require the Title IX Coordinator to provide and implement remedies to a complainant or other person the recipient identifies as having had equal access to the recipient's education program or activity limited or denied by sex discrimination, and require the Title IX Coordinator to take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur within the recipient's education program or activity under § 106.44(f)(6);
(4) Comply with this section, and if applicable § 106.46, before the imposition of any disciplinary sanctions against a respondent; and
(5) Not discipline a party, witness, or others participating in a recipient's grievance procedures for making a false statement or for engaging in consensual sexual conduct based solely on the recipient's determination of whether sex discrimination occurred.
(i)
(j)
(k)
(1) Describe the range of supportive measures available to complainants and respondents under § 106.44(g); and
(2) Describe the range of, or list, the possible disciplinary sanctions and remedies that the recipient may impose following a determination that sex-based harassment occurred.
(a)
(b)
(c)
(i) All information required under § 106.45(c); and
(ii) Allegations potentially constituting sex-based harassment, including the information required under § 106.45(c)(1)(ii), with sufficient time for the parties to prepare a response before any initial interview.
(2) The written notice must also inform the parties that:
(i) The respondent is presumed not responsible for the alleged conduct until a determination of whether sex-based harassment occurred is made at the conclusion of the grievance procedures under this section and that prior to the determination, the parties will have an opportunity to present relevant evidence to a trained, impartial decisionmaker;
(ii) They may have an advisor of their choice to serve in the role set out in paragraph (e)(2) of this section, and that the advisor may be, but is not required to be, an attorney;
(iii) They are entitled to receive access to relevant evidence or to an investigative report that accurately summarizes this evidence as set out in paragraph (e)(6) of this section; and
(iv) If applicable, any provision in the postsecondary institution's code of conduct prohibits knowingly making false statements or knowingly submitting false information during the grievance procedure.
(3) To the extent the postsecondary institution has legitimate concerns for the safety of any person as a result of providing this notice, the postsecondary institution may reasonably delay providing written notice of the allegations in order to address the safety concern appropriately. Legitimate concerns must be based on individualized safety and risk analysis and not on mere speculation or stereotypes.
(d)
(1) Provide the parties, simultaneously, with written notice of the dismissal and the basis for the dismissal, if dismissing a complaint under any of the bases in § 106.45(d)(1); and
(2) Obtain the complainant's withdrawal in writing if dismissing a complaint based on the complainant's voluntary withdrawal of the complaint or allegations under § 106.45(d)(1)(iii).
(e)
(1) Must provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all meetings, investigative interviews, or hearings with sufficient time for the party to prepare to participate;
(2) Must provide the parties with the same opportunities to be accompanied to any meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of the advisor for the complainant or respondent in any meeting or grievance proceeding; however, the postsecondary institution may establish restrictions regarding the extent to which the advisor may participate in the grievance procedures, as long as the restrictions apply equally to the parties;
(3) Must provide the parties with the same opportunities, if any, to have persons other than the advisor of the parties' choice present during any meeting or proceeding;
(4) Has discretion to determine whether the parties may present expert witnesses as long as the determination applies equally to the parties;
(5) Must allow for the reasonable extension of timeframes on a case-by-case basis for good cause with written notice to the parties that includes the reason for the delay; and
(6) Must provide each party and the party's advisor, if any, with equitable access to the evidence that is relevant to the allegations of sex-based harassment and not otherwise impermissible, consistent with §§ 106.2 and 106.45(b)(7), in the following manner:
(i) A postsecondary institution must provide either equitable access to the relevant and not otherwise impermissible evidence, or to the same written investigative report that accurately summarizes this evidence. If the postsecondary institution provides an investigative report, it must further provide the parties with equitable access to the relevant and not otherwise impermissible evidence upon the request of any party;
(ii) A postsecondary institution must provide the parties with a reasonable opportunity to review and respond to the evidence as provided under paragraph (6)(i) of this section prior to the determination of whether sex-based harassment occurred. If a postsecondary institution conducts a live hearing as part of its grievance procedures, it must provide this opportunity to review the evidence in advance of the live hearing; it is at the postsecondary institution's discretion whether to provide this opportunity to respond prior to the live hearing, during the live hearing, or both prior to and during the live hearing;
(iii) A postsecondary institution must take reasonable steps to prevent and address the parties' and their advisors' unauthorized disclosure of information and evidence obtained solely through the sex-based harassment grievance procedures; and
(iv) Compliance with paragraph (e)(6) of this section satisfies the requirements of § 106.45(f)(4).
(f)
(i) Allowing the decisionmaker to ask the parties and witnesses, during individual meetings with the parties or at a live hearing, relevant and not otherwise impermissible questions under §§ 106.2 and 106.45(b)(7) and follow-up questions, including questions challenging credibility, before determining whether sex-based harassment occurred and allowing each party to propose to the decisionmaker or investigator relevant and not otherwise impermissible questions under §§ 106.2 and 106.45(b)(7) and follow-up questions, including questions challenging credibility, that the party wants asked of any party or witness and have those questions asked during individual meetings with the parties or at a live hearing under paragraph (g) of this section subject to the requirements in paragraph (f)(3) of this section; or
(ii) When a postsecondary institution chooses to conduct a live hearing, allowing each party's advisor to ask any party and any witnesses all relevant and not otherwise impermissible questions under §§ 106.2 and 106.45(b)(7) and follow-up questions, including questions challenging credibility, subject to the requirements under paragraph (f)(3) of this section. Such questioning must never be conducted by a party personally. If a postsecondary institution permits advisor-conducted questioning and a party does not have an advisor who can ask questions on their behalf, the postsecondary institution must provide the party with an advisor of the postsecondary institution's choice, without charge to the party, for the purpose of advisor-conducting questioning. The advisor may be, but is not required to be, an attorney.
(2)
(3)
(4)
(g)
(h)
(1) The written determination must include:
(i) A description of the alleged sex-based harassment;
(ii) Information about the policies and procedures that the postsecondary institution used to evaluate the allegations;
(iii) The decisionmaker's evaluation of the relevant evidence and determination of whether sex-based harassment occurred;
(iv) When the decisionmaker finds that sex-based harassment occurred, any disciplinary sanctions the postsecondary institution will impose on the respondent, and whether remedies other than the imposition of disciplinary sanctions will be provided by the postsecondary institution to the complainant and, to the extent appropriate, other students identified by the postsecondary institution to be experiencing the effects of the sex-based harassment; and
(v) The postsecondary institution's procedures for the complainant and respondent to appeal.
(2) The determination regarding responsibility becomes final either on the date that the postsecondary institution provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.
(i)
(i) Procedural irregularity that would change the determination of whether sex-based harassment occurred in the matter;
(ii) New evidence that would change the outcome of the matter and that was not reasonably available at the time the determination of whether sex-based harassment occurred or dismissal was made; and
(iii) The Title IX Coordinator, investigator, or decisionmaker had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that would change the outcome of the matter.
(2) A postsecondary institution may offer an appeal equally to the parties on additional bases, as long as the additional bases are available to all parties.
(3) As to all appeals, the postsecondary institution must comply with the requirements in § 106.45(d)(3)(i), (iv), and (v) in writing.
(j)
The Assistant Secretary will not deem a recipient to have violated this part solely because the Assistant Secretary would have reached a different determination than a recipient reached under § 106.45, and if applicable § 106.46, based on an independent
(b) * * *
(6) Granting and return from leaves of absence, leave for pregnancy or related conditions, leave for persons of either sex to care for children or dependents, or any other leave;
(a)
(1) Concerning the current, potential, or past parental, family, or marital status of an employee or applicant for employment which treats persons differently; or
(2) Which is based upon whether an employee or applicant for employment is the head of household or principal wage earner in such employee's or applicant's family unit.
(b)
(c)
(d)
(e)
(2) A recipient must ensure the availability of a lactation space, which must be a space other than a bathroom that is clean, shielded from view, free from intrusion from others, and may be used by an employee for expressing breast milk or breastfeeding as needed.
(a)
(b)
A recipient must prohibit retaliation in its education program or activity. When a recipient receives information about conduct that may constitute retaliation, the recipient is obligated to comply with § 106.44. A recipient must initiate its grievance procedures upon receiving a complaint alleging retaliation under § 106.45. As set out in § 106.45(e), if the complaint is consolidated with a complaint of sex-based harassment involving a student complainant or student respondent at a postsecondary institution, the grievance procedures initiated by the consolidated complaint must comply with the requirements of §§ 106.45 and 106.46. Prohibited retaliation includes but is not limited to:
(a) Initiating a disciplinary process against a person for a code of conduct violation that does not involve sex discrimination but arises out of the same facts and circumstances as a complaint or information reported about possible sex discrimination, for the purpose of interfering with the exercise of any right or privilege secured by Title IX or this part; or
(b) Peer retaliation.
The procedural provisions applicable to title VI of the Civil Rights Act of 1964 are hereby adopted and incorporated herein. These procedures may be found at 34 CFR 100.6-100.11 and 34 CFR part 101.