[Federal Register Volume 79, Number 119 (Friday, June 20, 2014)]
[Proposed Rules]
[Pages 35417-35460]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-14384]



[[Page 35417]]

Vol. 79

Friday,

No. 119

June 20, 2014

Part II





Department of Education





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34 CFR Part 668





Violence Against Women Act; Proposed Rule

Federal Register / Vol. 79 , No. 119 / Friday, June 20, 2014 / 
Proposed Rules

[[Page 35418]]


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DEPARTMENT OF EDUCATION

34 CFR Part 668

RIN 1840-AD16
[Docket ID ED-2013-OPE-0124]


Violence Against Women Act

AGENCY: Office of Postsecondary Education, Department of Education.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend the Student Assistance General 
Provisions regulations issued under the Higher Education Act of 1965, 
as amended (HEA), to implement the changes made to the Clery Act by the 
Violence Against Women Reauthorization Act of 2013 (VAWA). These 
proposed regulations would update, clarify, and improve the current 
regulations.

DATES: We must receive your comments on or before July 21, 2014.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments submitted by fax or by email or those submitted after 
the comment period. To ensure that we do not receive duplicate copies, 
please submit your comments only once. In addition, please include the 
Docket ID at the top of your comments.
    If you are submitting comments electronically, we strongly 
encourage you to submit any comments or attachments in Microsoft Word 
format. If you must submit a comment in Adobe Portable Document Format 
(PDF), we strongly encourage 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.
     Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments electronically. Information on using 
Regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket, is available on the site 
under ``Are you new to the site?''
     Postal Mail, Commercial Delivery, or Hand Delivery: The 
Department strongly encourages commenters to submit their comments 
electronically. However, if you mail or deliver your comments about the 
proposed regulations, address them to Jean-Didier Gaina, U.S. 
Department of Education, 1990 K Street NW., Room 8055, Washington, DC 
20006-8502.

    Privacy Note: The Department's policy is to make all comments 
received from members of the public available for public viewing in 
their entirety on the Federal eRulemaking Portal at 
www.regulations.gov. Therefore, commenters should be careful to 
include in their comments only information that they wish to make 
publicly available.


FOR FURTHER INFORMATION CONTACT: Jessica Finkel, U.S. Department of 
Education, 1990 K Street NW., Room 8031, Washington, DC 20006-8502. 
Telephone (202) 502-7647 or by email at: Jessica.Finkel@ed.gov.
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Purpose of This Regulatory Action

    On March 7th, 2013, President Obama signed the Violence Against 
Women Reauthorization Act of 2013 (VAWA) (Pub. Law 113-4), which, among 
other provisions, amended section 485(f) of the HEA, otherwise known as 
the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime 
Statistics Act (Clery Act). The Clery Act requires institutions of 
higher education to comply with certain campus safety- and security-
related requirements as a condition of their participation in the title 
IV, HEA programs. Notably, VAWA amended the Clery Act to require 
institutions to compile statistics for incidents of dating violence, 
domestic violence, sexual assault, and stalking and to include certain 
policies, procedures, and programs pertaining to these incidents in 
their annual security reports. We propose to amend Sec.  668.46 of 
title 34 of the Code of Federal Regulations (CFR) in order to implement 
these statutory changes. Additionally, we propose to update this 
section by incorporating provisions added to the Clery Act by the 
Higher Education Opportunity Act of 2008, deleting outdated deadlines 
and cross-references, and making other changes to improve the 
readability and clarity of the regulations.

Summary of the Major Provisions of This Regulatory Action

    The proposed regulations would--
     Require institutions to maintain statistics about the 
number of incidents of dating violence, domestic violence, sexual 
assault, and stalking that meet the proposed definitions of those 
terms.
     Revise the definition of ``rape'' to reflect the Federal 
Bureau of Investigation's (FBI) recently updated definition in the UCR 
Summary Reporting System, which encompasses the categories of rape, 
sodomy, and sexual assault with an object that are used in the UCR 
National Incident-Based Reporting System.
     Revise the categories of bias for the purposes of Clery 
Act hate crime reporting to add gender identity and to separate 
ethnicity and national origin into independent categories.
     Require institutions to provide and describe in their 
annual security reports primary prevention and awareness programs to 
incoming students and new employees. These programs must include: A 
statement that the institution prohibits the crimes of dating violence, 
domestic violence, sexual assault, and stalking; the definition of 
these terms in the applicable jurisdiction; the definition of consent, 
in reference to sexual activity, in the applicable jurisdiction; a 
description of safe and positive options for bystander intervention; 
information on risk reduction; and information on the institution's 
policies and procedures after a sex offense occurs;
     Require institutions to provide and describe in their 
annual security reports ongoing prevention and awareness campaigns for 
students and employees. These campaigns must include the same 
information as in the institution's primary prevention and awareness 
program;
     Define the terms ``awareness programs,'' ``bystander 
intervention,'' ``ongoing prevention and awareness campaigns,'' 
``primary prevention programs,'' and ``risk reduction.''
     Require institutions to describe each type of disciplinary 
proceeding used by the institution; the steps, anticipated timelines, 
and decision-making process for each type of disciplinary proceeding; 
and how the institution determines which type of proceeding to use 
based on the circumstances of an allegation of dating violence, 
domestic violence, sexual assault, or stalking;
     Require institutions to list all of the possible sanctions 
that the institution may impose following the results of any 
institutional disciplinary proceedings for an allegation of dating 
violence, domestic violence, sexual assault, or stalking;
     Require institutions to describe the range of protective 
measures that the institution may offer following an allegation of 
dating violence, domestic violence, sexual assault, or stalking;
     Require institutions to provide for a prompt, fair, and 
impartial disciplinary proceeding in which (1) officials are 
appropriately trained and do not have a

[[Page 35419]]

conflict of interest or bias for or against the accuser or the accused; 
(2) the accuser and the accused have equal opportunities to have others 
present, including an advisor of their choice; (3) the accuser and the 
accused receive simultaneous notification, in writing, of the result of 
the proceeding and any available appeal procedures; (4) the proceeding 
is completed in a reasonably prompt timeframe; (5) the accuser and 
accused are given timely notice of meetings at which one or the other 
or both may be present; and (6) the accuser, the accused, and 
appropriate officials are given timely access to information that will 
be used after the fact-finding investigation but during informal and 
formal disciplinary meetings and hearings.
     Define the terms ``proceeding'' and ``result.''
     Specify that compliance with these provisions does not 
constitute a violation of section 444 of the General Education 
Provisions Act (20 U.S.C. 1232g), commonly known as the Family 
Educational Rights and Privacy Act of 1974 (FERPA).
    Please refer to the Summary of Proposed Changes section of this 
preamble for more details on the major provisions contained in this 
notice of proposed rulemaking (NPRM).
    Costs and Benefits: A benefit of these proposed regulations is that 
they would strengthen the rights of victims of dating violence, 
domestic violence, sexual assault, and stalking on college campuses. 
Institutions would be required to collect and disclose statistics of 
crimes reported to campus security authorities and local police 
agencies that involve incidents of dating violence, domestic violence, 
sexual assault, and stalking. This would improve crime reporting. In 
addition, students, prospective students, families, and employees and 
potential employees of the institutions, would be better informed about 
each campus's safety and procedures.
    Institutions would incur costs under the proposed regulations in 
two main categories: Paperwork costs of complying with the regulations, 
and other compliance costs that institutions may incur as they attempt 
to improve security on campus. Under the proposed regulations, 
institutions would incur costs involved in updating the annual security 
reports; changing crime statistics reporting to capture additional 
crimes, categories of crimes, differentiation of hate crimes, and 
expansion of categories of bias reported; and the development of 
statements of policy about prevention programs and institutional 
disciplinary actions. Institutions would also incur additional costs in 
attempting to comply with the new regulations. Costs to improve safety 
on campus would include annual training of officials on issues related 
to dating violence, domestic violence, sexual assault, and stalking as 
well as training on how to conduct disciplinary proceeding 
investigations and hearings. The proposed regulations are not estimated 
to have a significant net budget impact in the title IV, HEA student 
aid programs over loan cohorts from 2014 to 2024.
    Invitation to Comment: We invite you to submit comments regarding 
the proposed regulations. In particular, we request comment on 
additional ways to identify where one incident of stalking has ended 
and another has begun, on how to count stalking that crosses calendar 
years, and on how to report incidents of stalking by location, as 
discussed under ``Recording Stalking.'' We also request comment about 
whether the proposed approach to counting some or all of the primary 
Clery Act crimes should be modified to capture information about the 
relationship between a perpetrator and a victim, as discussed under 
``Crimes that must be Reported and Disclosed.''
    To ensure that your comments have maximum effect in developing the 
final regulations, we urge you to identify clearly the specific section 
or sections of the proposed regulations that each of your comments 
addresses, and provide relevant information and data whenever possible, 
even when there is no specific solicitation of data and other 
supporting materials in the request for comment. We also urge you to 
arrange your comments in the same order as the proposed regulations. 
Please do not submit comments outside the scope of the specific 
proposals in this notice of proposed rulemaking, as we are not required 
to respond to comments that are outside of the scope of the proposed 
rule. See ADDRESSES for instructions on how to submit comments.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866 and 13563 and their overall 
requirement of reducing regulatory burden that might result from the 
proposed regulations. Please let us know of any further ways we could 
reduce potential costs or increase potential benefits while preserving 
the effective and efficient administration of the Department's programs 
and activities.
    During and after the comment period, you may inspect all public 
comments about the proposed regulations by accessing Regulations.gov. 
You may also inspect the comments in person in room 8055, 1990 K Street 
NW., Washington, DC, between 8:30 a.m. and 4:00 p.m., Washington, DC 
time, Monday through Friday of each week except Federal holidays. If 
you want to schedule time to inspect comments, please contact the 
person listed under FOR FURTHER INFORMATION CONTACT.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: On request, we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for the proposed regulations. If you want to 
schedule an appointment for this type of accommodation or auxiliary 
aid, please contact the person listed under FOR FURTHER INFORMATION 
CONTACT.

Background

    On March 7th, 2013, President Obama signed VAWA (Pub. L. 113-4). 
VAWA included amendments to section 485(f) of the HEA, the Clery Act. 
The Clery Act requires institutions of higher education to comply with 
certain campus safety- and security-related requirements as a condition 
of their participation in the Federal student financial aid programs 
authorized by title IV of the HEA. Notably, VAWA amended the Clery Act 
to require institutions to compile statistics of the number of 
incidents of dating violence, domestic violence, and stalking reported 
to campus security authorities or local police agencies, in addition to 
the crimes currently identified. Institutions also must include certain 
policies, procedures, and programs pertaining to these incidents in 
their annual security reports. We propose to amend 34 CFR Sec.  668.46 
to implement these statutory changes. Additionally, we propose to 
update this section by incorporating certain provisions added to the 
Clery Act by the Higher Education Opportunity Act of 2008, deleting 
outdated deadlines and cross-references, and making other changes to 
improve the readability and clarity of the regulations.

Public Participation

    On April 16, 2013, we published a notice in the Federal Register 
(78 FR 2247), which we corrected on April 30, 2013 (78 FR 25235), 
announcing topics for consideration for action by a negotiated 
rulemaking committee. The topics for consideration were: Cash 
management of funds provided under the title IV Federal Student Aid 
programs; State authorization for programs offered through distance

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education or correspondence education; State authorization for foreign 
locations of institutions located in a State; clock to credit hour 
conversion; gainful employment; changes to the campus safety and 
security reporting requirements in the Clery Act made by VAWA, and the 
definition of ``adverse credit'' for borrowers in the Federal Direct 
PLUS Loan Program. In that notice, we announced three public hearings 
at which interested parties could comment on the topics suggested by 
the Department and could suggest additional topics for consideration 
for action by a negotiated rulemaking committee.
    On May 13, 2013, we announced in the Federal Register (78 FR 27880) 
the addition of a fourth hearing. The hearings were held on May 21, 
2013, in Washington, DC; May 23, 2013, in Minneapolis, Minnesota; May 
30, 2013, in San Francisco, California; and June 4, 2013, in Atlanta, 
Georgia. We also invited parties unable to attend a public hearing to 
submit written comments on the topics and to submit other topics for 
consideration. Transcripts from the public hearings are available at 
http://www2.ed.gov/policy/highered/reg/hearulemaking/2012/index.html. 
Written comments submitted in response to the April 16, 2013, notice 
may be viewed through the Federal eRulemaking Portal at 
www.regulations.gov, within docket ID ED-2012-OPE-0008. You can link to 
the ED-2012-OPE-0008 docket as a related docket inside the ED-2013-OPE-
0124 docket associated with this notice of proposed rulemaking. 
Alternatively, individuals can enter docket ID ED-2012-OPE-0008 in the 
search box to locate the appropriate docket. Instructions for finding 
comments are also available on the site under ``How to Use 
Regulations.gov'' in the Help section.

Negotiated Rulemaking

    Section 492 of the HEA, 20 U.S.C. 1098a, requires the Secretary to 
obtain public involvement in the development of proposed regulations 
affecting programs authorized by title IV of the HEA. After obtaining 
advice and recommendations from the public, including individuals and 
representatives of groups involved in the title IV, HEA programs, the 
Secretary must subject the proposed regulations to a negotiated 
rulemaking process. If negotiators reach consensus on the proposed 
regulations, the Department agrees to publish without alteration a 
defined group of regulations on which the negotiators reached consensus 
unless the Secretary reopens the process or provides a written 
explanation to the participants stating why the Secretary has decided 
to depart from the agreement reached during negotiations. Further 
information on the negotiated rulemaking process can be found at: 
http://www2.ed.gov/policy/highered/reg/hearulemaking/hea08/neg-reg-faq.html.
    On September 19, 2013, the Department published a notice in the 
Federal Register (78 FR 57571) announcing our intention to establish a 
negotiated rulemaking committee to prepare proposed regulations to 
address the changes to the Clery Act made by VAWA. The notice set forth 
a schedule for the committee meetings and requested nominations for 
individual negotiators to serve on the negotiating committee.
    The Department sought negotiators to represent students; legal 
assistance organizations that represent students; consumer advocacy 
organizations; State higher education executive officers; State 
Attorneys General and other appropriate State officials; institutions 
of higher education eligible to receive Federal assistance under title 
III, parts A, B, and F and title V of the HEA, which include 
Historically Black Colleges and Universities, Hispanic-Serving 
Institutions, American Indian Tribally Controlled Colleges and 
Universities, Alaska Native and Native Hawaiian-Serving Institutions, 
Predominantly Black Institutions, and other institutions with a 
substantial enrollment of needy students as defined in title III of the 
HEA; two-year public institutions of higher education; four-year public 
institutions of higher education; private, non-profit institutions of 
higher education; private, for-profit institutions of higher education; 
institutional campus public safety officials; institutional student 
affairs/disciplinary divisions; institutional centers for women, 
lesbian, gay, bisexual, and transgendered individuals; institutional 
attorneys; Indian tribal governments; and campus safety advocates. The 
Department considered the nominations submitted by the public and chose 
negotiators who would represent various interested constituencies and 
the negotiated rulemaking committee met to develop proposed regulations 
on January 13-14, 2014, February 24-25, 2014, and March 31-April 1, 
2014. At its first meeting, the committee reached agreement on its 
protocols, which generally set out the committee membership, and the 
standards by which the committee would operate. These protocols 
provided, among other things, that the non-Federal negotiators would 
represent the organizations listed after their names in the protocols. 
The committee included the following members:

Laura Dunn, SurvJustice, and John Kelly (alternate), Know Your IX, 
representing students.
Fatima Goss Graves, National Women's Law Center, and Bridget Harwood 
(alternate), Network for Victim Recovery of DC, representing legal 
assistance organizations that represent students.
Nancy Chi Cantalupo, Victim Rights Law Center, and Denice Labertew 
(alternate), Los Angeles Valley College and Los Angeles Mission 
College, representing consumer advocacy organizations.
S. Daniel Carter, VTV Family Outreach Foundation's 32 National 
Campus Safety Initiative, and Alison Kiss (alternate), Clery Center 
for Security on Campus, Inc., representing campus safety advocates.
Connie Best, Medical University of South Carolina, and Jessica Ladd-
Webert (alternate), University of Colorado-Boulder, representing 
mental health services providers.
Michael Heidingsfield, University of Texas System Police, and Paul 
Denton (alternate), Ohio State University Police Division, 
representing institutional campus safety officials.
Cat Riley, University of Texas Medical Branch Galveston, and 
Caroline Fultz-Carver (alternate), University of South Florida 
System, representing institutional student affairs/disciplinary 
divisions.
Lisa Erwin, University of Minnesota Duluth, and Dennis Gregory 
(alternate), Old Dominion University, representing institutional 
centers for women, lesbian, gay, bisexual, and transgendered 
individuals.
Dana Scaduto, Dickinson College, and Jerry Blakemore (alternate), 
Northern Illinois University, representing institutional attorneys.
Anthony Walker, Norfolk State University, and Julie Poorman 
(alternate), East Carolina University, representing minority-serving 
intuitions and other title III institutions.
Rick Amweg, University System of Ohio, and Gary Lyle (alternate), 
Anne Arundel Community College, representing two-year public 
institutions.
Jill Dunlap, UC Santa Barbara, and Holly Rider-Milkovich 
(alternate), University of Michigan, representing four-year public 
institutions.
Stephanie Atella, Loyola University Chicago, and Michael Webster 
(alternate), McDaniel College, representing private, non-profit 
institutions.
Deana Echols, Ultimate Medical Academy, and Christine Gordon 
(alternate), Graham Webb Academy, representing private, for-profit 
institutions.
Gail McLarnon, U.S. Department of Education, representing the 
Department.

    The protocols also provided that the committee would operate by 
consensus. The protocols also specified that consensus means that there 
must be no dissent by any members. Under the

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protocols, if the committee reached a final consensus on all issues, 
the Department would use the consensus-based language in its proposed 
regulations or, in the alternative, the Department would reopen the 
negotiated rulemaking process or provide a written explanation to the 
committee members regarding why it has decided to depart from that 
language.
    During the committee meetings, the committee reviewed and discussed 
the Department's drafts of regulatory language and the committee 
members' alternative language and suggestions. At the final meeting on 
April 1, 2014, the committee reached consensus on the Department's 
proposed regulations. For more information on the negotiated rulemaking 
sessions, please visit http://www2.ed.gov/policy/highered/reg/hearulemaking/2012/vawa.html.

Summary of Proposed Changes

    The proposed regulations would--
     Add and define the terms ``Clery Geography,'' ``dating 
violence,'' ``domestic violence,'' ``Federal Bureau of Investigation's 
(FBI) Uniform Crime Reporting (UCR) program (FBI's UCR program),'' 
``hate crime,'' ``Hierarchy Rule,'' ``programs to prevent dating 
violence, domestic violence, sexual assault, and stalking,'' ``sexual 
assault,'' and ``stalking.''
     Require institutions to address in their annual security 
reports their current policies concerning campus law enforcement, 
including the jurisdiction of security personnel, as well as any 
agreements, such as written memoranda of understanding between the 
institution and those police agencies, for the investigation of alleged 
criminal offenses.
     Require institutions to address in their annual security 
reports their policies to encourage accurate and prompt reporting of 
all crimes to the campus police and the appropriate police agencies 
when the victim of a crime elects to or is unable to make such a 
report.
     Require institutions to provide written information to 
victims about the procedures that one should follow if a crime of 
dating violence, domestic violence, sexual assault, or stalking has 
occurred, including written information about:
    [cir] The importance of preserving evidence that may assist in 
proving that the alleged criminal offense occurred or may be helpful in 
obtaining a protection order;
    [cir] How and to whom the alleged offense should be reported;
    [cir] The victim's options about the involvement of law enforcement 
and campus authorities, including the options to notify proper law 
enforcement authorities, be assisted by campus authorities in notifying 
law enforcement authorities, and decline to notify authorities; and
    [cir] The victim's rights and the institution's responsibilities 
with respect to orders of protection or similar orders issued by a 
court or by the institution.
     Require institutions to address in their annual security 
reports how the institution will complete publicly available 
recordkeeping requirements, including Clery Act reporting and 
disclosures, without the inclusion of identifying information about the 
victim;
     Require institutions to address in their annual security 
reports how the institution will maintain as confidential any 
accommodations or protective measures provided to the victim, to the 
extent that maintaining such confidentiality would not impair the 
ability of the institution to provide the accommodations or protective 
measures.
     Require institutions to specify in their annual security 
reports that they will provide written notification to students and 
employees about existing counseling, health, mental health, victim 
advocacy, legal assistance, visa and immigration assistance, and other 
services available for victims both within the institution and in the 
community.
     Require institutions to specify in their annual security 
reports that they will provide written notification to victims about 
options for, and available assistance in, changing academic, living, 
transportation, and working situations and clarify that the institution 
must make these accommodations if the victim requests them and if they 
are reasonably available, regardless of whether the victim chooses to 
report the crime to campus police or local law enforcement.
     Require institutions to specify in their annual security 
reports that, when a student or employee reports to the institution 
that the student or employee has been a victim of dating violence, 
domestic violence, sexual assault, or stalking, whether the offense 
occurred on or off campus, the institution will provide the student or 
employee a written explanation of the student's or employee's rights 
and options.
     Require institutions to maintain statistics about the 
number of incidents of dating violence, domestic violence, sexual 
assault, and stalking that meet the proposed definitions of those 
terms.
     Revise the definition of ``rape'' to reflect the FBI's 
recently updated definition in the UCR Summary Reporting System, which 
encompasses the categories of rape, sodomy, and sexual assault with an 
object that are used in the UCR National Incident-Based Reporting 
System.
     Revise and update the definitions of ``sex offenses,'' 
``fondling,'' ``incest,'' and ``statutory rape'' in Appendix A to 
subpart D of part 668 to reflect the FBI's updated definitions.
     Emphasize that institutions must, for the purposes of 
Clery Act reporting, include in their crime statistics all crimes 
reported to a campus security authority.
     Clarify that an institution may not withhold, or 
subsequently remove, a reported crime from its crime statistics based 
on a decision by a court, coroner, jury, prosecutor, or other similar 
noncampus official.
     Specify that Clery Act reporting does not require 
initiating an investigation or disclosing identifying information about 
the victim.
     Revise the categories of bias for the purposes of Clery 
Act hate crime reporting to add gender identity and to separate 
ethnicity and national origin into independent categories.
     Specify how institutions should record reports of 
stalking, including how to record reports in which the stalking 
included activities in more than one calendar year or in more than one 
location within the institution's Clery Act-reportable areas, and how 
to determine when to report a new crime of stalking involving the same 
victim and perpetrator.
     Create an exception to the requirements of the Hierarchy 
Rule in the UCR Reporting Handbook for situations in which an 
individual is a victim of a sex offense and a murder during the same 
incident so that the incident will be included in both categories.
     Clarify that an institution must withhold as confidential 
the names and other identifying information of victims when providing 
timely warnings.
     Implement the requirements pertaining to an institution's 
educational programs to promote the awareness of dating violence, 
domestic violence, sexual assault, and stalking by:
    [cir] Requiring institutions to describe in their annual security 
reports the institution's primary prevention and awareness programs for 
incoming students and new employees, which must include: A statement 
that the institution prohibits the crimes of dating

[[Page 35422]]

violence, domestic violence, sexual assault, and stalking; the 
definition of these terms in the applicable jurisdiction; the 
definition of consent, in reference to sexual activity, in the 
applicable jurisdiction; a description of safe and positive options for 
bystander intervention; information on risk reduction; and information 
on the institution's policies and procedures after a sex offense 
occurs;
    [cir] Requiring institutions to provide and describe in their 
annual security reports ongoing prevention and awareness campaigns for 
students and employees, which must include the same information as in 
the institution's primary prevention and awareness program; and
    [cir] Defining the terms ``awareness programs,'' ``bystander 
intervention,'' ``ongoing prevention and awareness campaigns,'' 
``primary prevention programs,'' and ``risk reduction.''
     Implement requirements pertaining to an institution's 
procedures for campus disciplinary action in cases of alleged dating 
violence, domestic violence, sexual assault, or stalking by:
    [cir] Requiring institutions to describe each type of disciplinary 
proceeding used by the institution; the steps, anticipated timelines, 
and decision-making process for each type of disciplinary proceeding; 
and how the institution determines which type of proceeding to use 
based on the circumstances of an allegation of dating violence, 
domestic violence, sexual assault, or stalking;
    [cir] Requiring institutions to list all of the possible sanctions 
that the institution may impose following the results of any 
institutional disciplinary proceedings for an allegation of dating 
violence, domestic violence, sexual assault, or stalking;
    [cir] Requiring institutions to describe the range of protective 
measures that the institution may offer following an allegation of 
dating violence, domestic violence, sexual assault, or stalking;
    [cir] Requiring institutions to provide for prompt, fair, and 
impartial disciplinary proceedings in which: (1) Officials are 
appropriately trained and do not have a conflict of interest or bias 
for or against the accuser or the accused; (2) the accuser and the 
accused have equal opportunities to have others present, including an 
advisor of their choice; (3) the accuser and the accused receive 
simultaneous notification, in writing, of the result of the proceeding 
and any available appeal procedures; (4) the proceeding is completed in 
a reasonably prompt timeframe; (5) the accuser and accused are given 
timely notice of meetings at which one or the other or both may be 
present; and (6) the accuser, the accused, and appropriate officials 
are given timely access to information that will be used after the 
fact-finding investigation but during informal and formal disciplinary 
meetings and hearings;
    [cir] Defining the terms ``proceeding'' and ``result;'' and
    [cir] Specifying that compliance with these provisions does not 
constitute a violation of FERPA.
     Prohibit retaliation by an institution or an officer, 
employee, or agent of an institution against any individual for 
exercising their rights or responsibilities under any provision under 
the Clery Act.

Significant Proposed Regulations

    Very generally, section 304 of VAWA amended section 485(f) of the 
HEA, otherwise known as the Clery Act, to: Expand reporting of crime 
statistics to capture a more accurate picture of dating violence, 
domestic violence, sexual assault, and stalking on our nation's 
campuses; strengthen institutional policies related to these crimes; 
provide greater support and accommodations for victims; and protect the 
rights of both parties (accuser and accused) during institutional 
disciplinary proceedings. During the negotiated rulemaking process that 
resulted in these proposed regulations, the committee was guided by 
several key principles.
    First, VAWA amended the Clery Act, but it did not affect in any way 
title IX of the Education Amendments of 1972 (title IX), its 
implementing regulations, or associated guidance issued by the 
Department's Office for Civil Rights (OCR).\1\ While the Clery Act and 
title IX overlap in some areas relating to requirements for an 
institution's response to reported incidents of sexual violence, the 
two statutes and their implementing regulations and interpretations are 
separate and distinct. Nothing in these proposed regulations alters or 
changes an institution's obligations or duties under title IX as 
interpreted by OCR.
---------------------------------------------------------------------------

    \1\ Title IX prohibits discrimination on the basis of sex in 
federally funded education programs or activities.
---------------------------------------------------------------------------

    Second, the committee set out to develop inclusive, effective, and 
fair regulations that protect the rights of all students. The 
negotiators worked hard to craft regulatory language that takes into 
account the unique needs of diverse communities and individuals, paying 
careful attention to words that might be viewed as insensitive or 
unwelcoming.
    And third, the committee recognized that, while there is important 
and urgent work being done in the sexual violence prevention field, the 
Clery Act and VAWA do not require institutions to use specific 
materials for prevention policies and procedures. The committee 
believed strongly that institutions should use practices that have been 
shown through research and assessment to be effective. The Department 
expects that best practices information will be released a separate 
document following issuance of final regulations.
    We discuss substantive issues under the sections of the proposed 
regulations to which they pertain. Generally, we do not address 
proposed regulatory provisions that are technical or otherwise minor in 
effect.

Definitions

Definition of Clery Geography

    Statute: Section 485(f)(1)(F) of the HEA requires an institution to 
report to the Department and disclose in its annual security report 
statistics regarding certain crimes reported to campus security 
authorities or local police agencies that occur on campus, in or on 
noncampus buildings or property, and on public property during the most 
recent calendar year and during the two preceding calendar years for 
which data are available. Additionally, section 485(f)(4)(A) of the HEA 
requires institutions that maintain a campus police or security 
department of any kind to make, keep, and maintain a daily crime log 
that records all crimes reported to that police or security department.
    Current Regulations: Section 668.46(a) contains definitions of the 
terms ``campus'' ``noncampus building or property'' and ``public 
property.'' ``Campus'' is defined as (1) any building or property owned 
or controlled by an institution within the same reasonably contiguous 
geographic area and used by the institution in direct support of, or in 
a manner related to, the institution's educational purposes, including 
residence halls; and (2) any building or property that is within or 
reasonably contiguous to the area identified in clause (1) that is 
owned or controlled by another person, is frequently used by students, 
and supports institutional purposes (such as a food or other retail 
vendor). ``Noncampus building or property'' is defined as (1) any 
building or property owned or controlled by a student organization that 
is officially recognized by the institution; or (2) any building or 
property owned or controlled by an institution that is used in direct 
support of, or in relation to, the institution's educational purposes, 
is frequently used by students, and is not

[[Page 35423]]

within the same reasonably contiguous geographic area of the 
institution. ``Public property'' is defined as all public property, 
including thoroughfares, streets, sidewalks, and parking facilities, 
that is within the campus, or immediately adjacent to and accessible 
from the campus.
    Section 668.46(f) requires institutions that have a campus police 
or security department to maintain a daily crime log that records any 
crime reported to that department that occurred on campus, on a 
noncampus building or property, on public property (as those terms are 
defined in Sec.  668.46(a)), or within the patrol jurisdiction of the 
campus police or security department.
    Proposed Regulations: We propose to add and define the term ``Clery 
Geography'' to Sec.  668.46(a). For the purposes of the annual crime 
statistics, ``Clery Geography'' would be defined as including the areas 
that meet the definitions of ``campus,'' ``noncampus building or 
property,'' or ``public property.'' For the purposes of maintaining a 
daily crime log as required under Sec.  668.46(f), Clery Geography 
would be defined to also include areas within the patrol jurisdiction 
of the campus police or security department. We also propose to replace 
both the reference in Sec.  668.46(c)(1) to ``campus, in or on 
noncampus buildings or property, and on public property'' and the 
reference in Sec.  668.46(f)(1) to ``campus, on a noncampus building or 
property, on public property, or within the patrol jurisdiction of the 
campus police or the campus security department'' with the term ``Clery 
Geography.''
    Reasons: The proposed use and definition of the term ``Clery 
Geography'' would provide a concise way of referring collectively to 
the physical locations for which an institution is responsible for 
collecting reports of crimes for inclusion in its annual crime 
statistics and, if applicable, its daily crime log. The Department has 
used the term ``Clery Geography'' in The Handbook for Campus Safety and 
Security Reporting (the Handbook), which provides guidance on complying 
the Clery Act, and in training materials to refer to an institution's 
``campus,'' ``noncampus building or property,'' or ``public property'' 
for many years, and the term is commonly used by institutional 
officials and other individuals familiar with the Clery Act. We stress 
that this proposed definition of ``Clery Geography'' would not alter 
the existing, long-standing definitions of ``campus,'' ``noncampus 
building or property,'' or ``public property.'' Instead, we are adding 
this term to improve the readability and understandability of the 
regulations.

Definition of Consent

    Statute: None.
    Current Regulations: None.
    Proposed Regulations: None.
    Reasons: During the negotiated rulemaking sessions, the committee 
debated whether to propose a definition of the word ``consent'' in 
these regulations. During the first session, several negotiators 
strongly urged the Department to develop a definition of ``consent'' 
for the purposes of the Clery Act. They asserted that establishing a 
definition of consent would help set a national standard for what it 
means to consent to sexual activity. Several negotiators also argued 
that a definition of consent would provide clarity for institutions, 
students, and employees with regard to when a reported sex offense 
would need to be included in the institution's Clery Act statistics.
    Other negotiators, however, objected to the proposed addition of a 
definition of consent. They argued that a definition would create 
ambiguity and confusion for institutional officials, students, 
employees, and the public, particularly in jurisdictions which either 
do not define consent or have a definition that differed from the one 
that would be in the regulations. Some negotiators, particularly those 
representing law enforcement and institutional attorneys, believed that 
it would be difficult and create a burden for law enforcement officials 
to classify crimes based on two different standards, and that campus 
public safety officials would be expected to make decisions about 
consent based on situations outside their areas of expertise and 
without a bright-line standard. One of the negotiators argued that it 
would not be reasonable to add a definition of consent for Clery Act 
reporting purposes when VAWA specifically added a reference to the 
definition of consent in the applicable jurisdiction for the purposes 
of prevention and training. Along these lines, some negotiators noted 
that some institutions use their own definition of ``consent'' for 
purposes of their institutional disciplinary procedures. These 
officials asserted that adding a definition of consent to these 
regulations could cause confusion by creating situations where an 
institution might have three separate definitions of consent relating 
to sexual activity for different purposes.
    After considering these arguments, the Department decided to 
include a definition of consent in the Department's initial draft 
regulations presented to the negotiators. Drawing on materials from 
other Federal agencies, State statutes, and institutions, we drafted 
language to define ``consent'' as the affirmative, unambiguous, and 
voluntary agreement to engage in a specific sexual activity during a 
sexual encounter. Under this definition, an individual who was asleep, 
or mentally or physically incapacitated, either through the effect of 
drugs or alcohol or for any other reason, or who was under duress, 
threat, coercion, or force, would not have been able to give consent. 
Further, one would not be able to infer consent under circumstances in 
which consent was not clear, including but not limited to the absence 
of ``no'' or ``stop,'' or the existence of a prior or current 
relationship or sexual activity. Several of the negotiators endorsed 
this draft language as a starting point and some made suggestions to 
strengthen it. On the other hand, some negotiators vigorously objected 
to including the definition, reiterating concerns about the potential 
for confusion caused by multiple definitions.
    After further consideration, the Department decided to remove the 
definition of consent from the draft regulations. At the third session 
of the negotiations, we explained that, while we believed that our 
draft language is a valid starting point for other efforts related to 
the prevention of campus sexual assaults, we were not convinced that it 
would be helpful to institutions for purposes of complying with the 
Clery Act. Specifically, we noted that for purposes of Clery Act 
reporting, all sex offenses that are reported to a campus security 
authority must be recorded in an institution's Clery Act statistics 
and, if reported to the campus police, must be included in the crime 
log, regardless of the issue of consent. Thus, while the definitions of 
the sex offenses in Appendix A to subpart D of part 668 include lack of 
consent as an element of the offense, for purposes of Clery Act 
reporting, no determination as to whether that element has been met is 
required.
    Some of the negotiators disagreed, arguing that the references to a 
lack of consent in various parts of the proposed regulations, such as 
the definitions of the sex offenses in Appendix A to subpart D of part 
668, demands an affirmative definition of consent in order to permit 
determinations of when consent is absent. In the end, however, the 
negotiators agreed not to include a definition of consent in these 
regulations, but they requested that the Department include further 
clarification and guidance around the issue of consent in future 
documents and

[[Page 35424]]

publications. We intend to provide this guidance, and also note that 
other Federal, State, and local agencies have materials in this area 
that may be instructive.

Definition of Dating Violence

    Statute: Section 304 of VAWA added a requirement to the Clery Act 
that institutions include statistics on dating violence in their crime 
statistics reported to the Department and in the annual security 
report. In addition, VAWA amended sections 485(f)(6)(A) and 485(f)(7) 
of the HEA to specify that the term ``dating violence'' has the meaning 
given in Sec.  40002(a) of the Violence Against Women Act of 1994 (42 
U.S.C. 13925(a)). The Violence Against Women Act of 1994 defines the 
term ``dating violence'' to mean violence committed by a person who is 
or has been in a social relationship of a romantic or intimate nature 
with the victim; where the existence of such a relationship is 
determined based on a consideration of the length of the relationship, 
the type of relationship, and the frequency of interaction between the 
persons involved in the relationship.
    Current Regulations: None.
    Proposed Regulations: We propose to add a definition of the term 
``dating violence'' in Sec.  668.46(a). Dating violence would be 
defined as violence committed by a person who is or has been in a 
social relationship of a romantic or intimate nature with the victim. 
The existence of such a relationship would be determined based on the 
reporting party's statement and with consideration of the length of the 
relationship, the type of relationship, and the frequency of 
interaction between the persons involved in the relationship. For the 
purposes of this definition, dating violence would include, but would 
not be limited to, sexual or physical abuse or the threat of such 
abuse. Additionally, the proposed definition would specify that dating 
violence does not include acts that meet the definition of ``domestic 
violence.'' Finally, the proposed definition would clarify that, for 
the purposes of complying with the requirements of the Clery Act, 
including for statistical purposes, any incident that meets this 
definition of dating violence would be considered a crime.
    Reasons: The changes made to the Clery Act by VAWA include 
requirements relating to programs, policies, procedures, and statistics 
related to incidents of dating violence, domestic violence, sexual 
assault, and stalking. Accordingly, we propose to add definitions of 
these terms to the regulations.
    While the term ``dating violence'' is defined in the Violence 
Against Women Act of 1994, the Department received numerous requests at 
the public hearings, during the public comment period and from some of 
the negotiators, to further define some of the words used in the 
statutory definition of the term. In particular, we were asked to 
clarify how institutions should determine whether individuals were in a 
dating relationship when the violence occurred, specify what types of 
behavior would be considered violence, clarify the interaction between 
dating violence and domestic violence, and explain how to address 
incidents of dating violence in jurisdictions where dating violence is 
not a crime.
    The negotiators had a substantial discussion on how to determine 
whether individuals were in a dating relationship when the violence 
occurred. In particular, the negotiators suggested three possible 
approaches to determining whether a dating relationship exists: (1) 
Accepting the determination of campus safety officials, (2) using a 
``reasonable person'' standard, or (3) basing the determination on the 
victim's perspective.
    Under the first approach, campus law enforcement or a campus 
security department would make the determination of whether a dating 
relationship existed after considering the factors outlined in the 
statutory definition of dating violence, specifically, the length and 
type of the relationship, and the frequency of interaction. Several of 
the negotiators supported this approach because they believed that it 
would give these officials the authority to make a professional 
judgment about the nature of the relationship, for purposes of crime 
reporting. Other negotiators disagreed with this approach, however, 
arguing that generational differences in terminology and culture (e.g., 
``going steady,'' ``seeing each other,'' ``hooking up,'' or ``hanging 
out'') could create situations in which an incident of dating violence 
would be incorrectly omitted from the crime statistics and the crime 
log. They noted that, in some cases, the reporting party and the 
institutional official receiving the report may have different concepts 
about what constitutes dating.
    Under the second approach, an institution would make the 
determination of whether a dating relationship existed based on whether 
or not a ``reasonable person'' would consider the individuals to be 
dating. Some of the negotiators advocated this approach, arguing that 
it would reflect a standard that is frequently used in other areas of 
the law. Several other negotiators strongly disagreed, however, arguing 
that a reasonable person standard has traditionally reflected a 
perspective that may not adequately meet the needs of diverse 
populations of students.
    Under the third approach, an institution would make the 
determination based on whether or not victim considered themselves 
himself or herself to be in dating relationships. Several of the 
negotiators supported this approach, arguing that it would be clear and 
simple. They argued that leaving it to the victim to define the 
relationship would avoid problems caused by differences in terminology 
between the victim and campus officials or in the perception of the 
relationship between the victim and the perpetrator. Other negotiators 
believed that this was a reasonable approach, but they raised concerns 
that leaving the determination solely to the victim would not be 
supportable under the statute, which requires consideration of several 
factors, namely, the length of the relationship, the type of 
relationship, and the frequency of interaction.
    In the end, the negotiators agreed to a compromise definition that 
allows both the reporting party and law enforcement to be involved in 
determining whether a reported crime constitutes an incident of dating 
violence. Under the proposed definition, an institution would determine 
whether the individuals were in a dating relationship by considering 
the reporting party's statement, as well as the other factors included 
in the statutory definition--the length of the relationship, the type 
of relationship, and the frequency of interaction between the persons 
involved in the relationship. We believe that this proposed definition 
appropriately allows institutions to give considerable weight to the 
view of the victim or, if someone other than the victim reports the 
incident, to the view of the reporting party, but also allows campus 
law enforcement or a campus security department flexibility to consider 
the statutory factors specifically listed in VAWA in deciding whether 
an incident meets the definition of dating violence.
    Next, with regards to the types of behavior that would be 
considered violence for purposes of this definition, some of the 
negotiators strongly believed that the definition of ``dating 
violence'' should include not only physical and sexual violence but 
also emotional or psychological abuse. These

[[Page 35425]]

negotiators noted that emotional or psychological abuse are commonly 
included in the definitions of ``dating violence'' or similar terms 
used by other Federal agencies such as the Department of Justice and 
the Centers for Disease Control and Prevention, States, and by 
practitioners in the field of sexual violence prevention. The 
negotiators also stressed that emotional or psychological abuse can 
have a severe impact on a victim, limiting the victim's ability to 
access school in a healthy way, and that emotional or psychological 
abuse often escalates to physical or sexual violence.
    Other negotiators believed that the definition of ``dating 
violence'' should be limited to physical and sexual abuse. They argued 
that, from a practical standpoint, it would be difficult for campus law 
enforcement and other institutional officials to determine whether a 
report of emotional or psychological abuse meets the standard of 
``violence,'' and accordingly whether or not to include it in the 
institution's Clery Act statistics. Some of the negotiators also argued 
that including emotional and psychological abuse in the definition of 
dating violence would exceed the limits established by statutory 
language.
    In this proposed definition, we have specified that, for the 
purposes of including incidents of dating violence in an institution's 
Clery Act statistics, dating violence includes, but is not limited to, 
sexual or physical abuse or the threat of such abuse. While the 
Department strongly supports the inclusion of emotional or 
psychological abuse in definitions of dating violence used for 
research, prevention, victim services, or intervention purposes, we are 
not proposing to explicitly include these forms of abuse in this 
definition for purposes of Clery Act reporting for several reasons. 
First, the Department recognizes that some instances of emotional and 
verbal abuse may not rise to the level of ``violence'' which is a part 
of the statutory definition of dating violence under VAWA. Second, we 
acknowledge the implementation challenges that including these forms of 
abuse in the regulatory definition would present for campus security 
authorities, including law enforcement for purposes of Clery Act 
reporting. In particular, the Department recognizes the difficulties 
that campus security authorities may encounter when attempting to 
identify incidents of reported emotional or psychological abuse, as 
these forms of abuse may not be visibly apparent, but instead may 
require the input of mental health professionals and counselors. We 
believe that the proposed definition reflects the statutory 
requirements and strikes a balance between creating a clear, 
enforceable regulation and allowing institutions to include instances 
of emotional or psychological abuse where the abuse constitutes a 
threat of physical or sexual abuse.
    Further, some negotiators requested clarification on how 
institutions should record incidents that meet the definitions of both 
``dating violence'' and ``domestic violence'' for Clery Act statistical 
purposes. Specifically, the negotiators noted that, because certain 
acts of violence by an intimate partner of the victim meet both the 
definitions of ``dating violence'' and ``domestic violence'', a 
particular incident could be double-counted where the act is committed 
by an ``intimate partner'' and is an act of violence that also 
constitutes a felony or misdemeanor crime, thus meeting both 
definitions. To address concerns about the overlap of the definitions 
of ``dating violence'' and ``domestic violence'' and to avoid double-
counting, we have proposed to include the language clarifying that for 
purposes of Clery Act reporting, ``dating violence does not include 
acts covered under the definition of domestic violence.''
    Finally, the negotiators requested clarification about how to treat 
incidents of dating violence in jurisdictions where dating violence is 
not a crime. During the committee's discussions on this point several 
negotiators noted the discrepancy between the statutory definitions of 
``dating violence,'' which refers to ``violence'' and does not require 
that a crime be committed, and the definition of ``domestic violence,'' 
which is defined as ``a felony or misdemeanor crime of violence.''
    In these proposed regulations we would provide that any incident 
that meets the definition of ``dating violence'' is a ``crime'' for the 
purposes of the Clery Act. We have included this provision to make it 
clear that all such incidents would have to be recorded in an 
institution's statistics, regardless of whether or not dating violence 
is a crime in the institution's jurisdiction. We also believe this 
provision improves the readability of the regulations.

Definition of Domestic Violence

    Statute: Section 304 of VAWA added a requirement to the Clery Act 
that institutions include statistics on domestic violence in their 
crime statistics reported to the Department and included in the annual 
security report. In addition, VAWA amended sections 485(f)(6)(A) and 
485(f)(7) of the HEA to specify that the term ``domestic violence'' has 
the meaning given in section 40002(a) of the Violence Against Women Act 
of 1994 (42 U.S.C. 13925(a)). The Violence Against Women Act of 1994 
defines the term ``domestic violence'' to mean a felony or misdemeanor 
crime of violence committed by a current or former spouse or intimate 
partner of the victim, by a person with whom the victim shares a child 
in common, by a person who is cohabitating with or has cohabitated with 
the victim as a spouse, by a person similarly situated to a spouse of 
the victim under the domestic or family violence laws of the 
jurisdiction receiving grant monies under VAWA, or by any other person 
against an adult or youth victim who is protected from that person's 
acts under the domestic or family violence laws of the jurisdiction.
    Current Regulations: None.
    Proposed Regulations: We propose to add a definition of the term 
``domestic violence'' in Sec.  668.46(a). ``Domestic violence'' would 
be defined as it is in section 40002(a) of the Violence Against Women 
Act of 1994 (42 U.S.C. 13925(a)). Additionally, the proposed definition 
would clarify that, for the purposes of complying with the requirements 
of the Clery Act, including for statistical purposes, any incident that 
meets this definition of ``domestic violence'' would be considered a 
crime.
    Reasons: As discussed, in contrast to dating violence, an incident 
is considered to be domestic violence under the statutory definition 
only if it is a felony or misdemeanor crime of violence in the 
jurisdiction. Additionally, as with dating violence, under these 
proposed regulations any incident that meets the definition of domestic 
violence would be considered to be a ``crime'' for the purposes of the 
Clery Act. We have included this provision to make it clear that all 
such incidents would have to be recorded in an institution's statistics 
and to improve the readability of the regulations.

Definition of the Federal Bureau of Investigation's (FBI) Uniform Crime 
Reporting (UCR) program (FBI's UCR program)

    Statute: Section 485(f)(7) of the HEA specifies that institutions 
must compile their crime statistics in accordance with the definitions 
used in the uniform crime reporting system of the Department of 
Justice, FBI, and the modifications in those definitions as implemented 
pursuant to the Hate Crime Statistics Act (28 U.S.C. 534 note).
    Current Regulations: The regulations in Sec.  668.46(a) do not 
currently define

[[Page 35426]]

the term ``FBI's UCR program.'' However, the current Sec.  668.46(c)(7) 
specifies that institutions must compile crime statistics using the 
definitions of the crimes provided in Appendix A to subpart D of part 
668 and guidance in the FBI's UCR Handbook (Summary Reporting System) 
or the UCR Reporting Handbook: National Incident-Based Reporting System 
(NIBRS), and, for the purposes of compiling hate crime statistics, the 
FBI's UCR Hate Crime Data Collection Guidelines and Training Guide for 
Hate Crime Data Collection.
    Proposed Regulations: We propose to add a definition of the term 
``Federal Bureau of Investigation's (FBI) Uniform Crime Reporting (UCR) 
Program'' (FBI's UCR program) to Sec.  668.46(a). This proposed 
definition would define the FBI's UCR program as a nationwide, 
cooperative statistical effort in which city, university and college, 
county, State, Tribal, and Federal law enforcement agencies voluntarily 
report data on crimes brought to their attention. The proposed addition 
would also clarify that the FBI's UCR program serves as the basis for 
the definitions of crimes in Appendix A to subpart D of part 668 and 
the requirements for classifying crimes in subpart D.
    Reasons: The current regulations and, to an even greater extent, 
the proposed regulations, refer to the FBI's UCR program in several 
places, and we believe that adding a definition of the term ``FBI's UCR 
program'' at the beginning of the section will improve the clarity of 
the regulations.

Definition of Hate Crime

    Statute: Prior to the enactment of VAWA, section 485(f)(1)(F)(ii) 
of the HEA required institutions to compile statistics about the number 
of cases of murder; manslaughter; sex offenses; robbery; aggravated 
assault; burglary; motor vehicle theft; arson; larceny-theft; simple 
assault; intimidation; destruction, damage, or vandalism of property; 
or other crimes involving bodily injury reported to campus security 
authorities or local police agencies in which the victim was 
intentionally selected because of the victim's actual or perceived 
race, gender, religion, sexual orientation, ethnicity, or disability. 
Under the HEA, institutions must record these statistics according to 
the category of prejudice.
    Section 304 of VAWA amended section 485(f)(1)(F)(ii) of the HEA to 
add national origin and gender identity as categories of prejudice that 
may be identified as the basis for a hate crime.
    Current Regulations: Section 668.46(a) does not currently include a 
definition of ``hate crime.'' However, the current regulations in Sec.  
668.46(c)(3) specify that institutions must include in their statistics 
the number of cases of criminal homicide; sex offenses; robbery; 
aggravated assault; burglary; motor vehicle theft; arson; larceny-
theft; simple assault; intimidation; damage, destruction, or vandalism 
of property; and any other crimes involving bodily injury that are 
reported to campus security authorities or local police agencies that 
manifest evidence that the victim was intentionally selected because of 
the victim's actual or perceived race, gender, religion, sexual 
orientation, ethnicity, or disability. Section 668.46(c)(7) directs 
institutions to use the definitions in the FBI's UCR Hate Crime Data 
Collection Guidelines and Training Guide for Hate Crime Data Collection 
in compiling the Hate Crime statistics.
    Proposed Regulations: We propose to add a definition of ``hate 
crime'' to Sec.  668.46(a). The proposed regulations would define 
``hate crime'' to mean a crime reported to local police agencies or to 
a campus security authority that manifests evidence that the victim was 
intentionally selected because of the perpetrator's bias against the 
victim. For the purposes of the Clery Act, the categories of bias that 
may serve as the basis for a determination that a crime is a hate crime 
would include the victim's actual or perceived race, religion, gender, 
gender identity, sexual orientation, ethnicity, national origin, and 
disability.
    Reasons: As discussed under ``Recording Crimes Reported to a Campus 
Security Authority,'' we are proposing to re-structure paragraph (c) to 
make the regulations easier to understand. Those changes would result 
in references to hate crimes in multiple places in this section, and we 
believe that adding a definition of ``hate crime'' in Sec.  668.46(a), 
using the existing description of hate crimes in Sec.  668.46(c)(3), 
will help clarify the regulations by explicitly defining this term, as 
well as making the definition easy to find.

Definition of Hierarchy Rule

    Statute: None.
    Current Regulations: The current regulations in Sec.  668.46(c)(7) 
specify that institutions must compile the crime statistics for certain 
crimes using the definitions of crimes in Appendix A to subpart D of 
part 668 and the guidelines in the UCR Reporting Handbook. The UCR 
Reporting Handbook requires that, when recording crimes when more than 
one offense was committed during a single incident, the Hierarchy Rule 
applies. Under the Hierarchy Rule, only the most serious offense is 
recorded. For example, under the Hierarchy Rule, if a perpetrator 
commits both an aggravated assault and a robbery during a single 
incident, only the robbery would be recorded because it is considered 
to be the more serious offense.
    Proposed Regulations: We propose to add a definition of ``Hierarchy 
Rule'' to Sec.  668.46(a). The proposed regulations would define 
``Hierarchy Rule'' as the requirement in the FBI's UCR program that, 
for purposes of reporting crimes in that system, when more than one 
criminal offense is committed during a single incident, only the most 
serious offense is to be included in the institution's Clery Act 
statistics.
    Reasons: The Department has long required institutions to apply the 
FBI's UCR program's Hierarchy Rule when calculating their annual Clery 
Act statistics. The current regulations reflect this policy by 
referring to the guidelines in the UCR Reporting Handbook. As discussed 
more fully under ``Using the FBI's UCR Program and the Hierarchy 
Rule,'' we are proposing to create an exception to the Hierarchy Rule 
in proposed Sec.  668.46(c)(9) that would apply only in cases where a 
sexual assault and a murder occur in the same incident. We believe that 
adding this definition in Sec.  668.46(a) will improve the clarity of 
the regulations, particularly given the proposed exception to the 
Hierarchy Rule.

Definition of Programs To Prevent Dating Violence, Domestic Violence, 
Sexual Assault, and Stalking

    Statute: Prior to enactment of VAWA, section 485(f)(8)(A) of the 
HEA required an institution to include in its annual security report a 
statement of policy including, among other things, information about 
the institution's campus sexual assault programs aimed at preventing 
sex offenses. This statement had to address the institution's education 
programs to promote the awareness of rape, acquaintance rape, and other 
sex offenses. Section 304 of VAWA amended section 485(f)(8)(A) of the 
HEA to require that this statement of policy describe, among other 
things, the institution's programs to prevent dating violence, domestic 
violence, sexual assault, and stalking. VAWA also expanded the 
information that the institution must include in its statement of 
policy to include descriptions of the institution's primary prevention 
and awareness programs for all incoming students and new employees and 
its ongoing prevention and awareness campaigns for students and 
faculty. Both primary prevention and awareness

[[Page 35427]]

programs and ongoing prevention and awareness campaigns must include: 
(1) A statement that the institution prohibits dating violence, 
domestic violence, sexual assault, and stalking; (2) the definitions of 
dating violence, domestic violence, sexual assault, and stalking in the 
applicable jurisdiction; (3) the definition of consent, in reference to 
sexual activity, in the applicable jurisdiction; (4) safe and positive 
options for bystander intervention that may be carried out by an 
individual to prevent harm or intervene when there is a risk of dating 
violence, domestic violence, sexual assault, or stalking against a 
person other than the individual; (5) information on risk reduction to 
recognize warning signs of abusive behavior and how to avoid potential 
attacks; and (6) information about the procedures that victims should 
follow, and that the institution will follow, after an incident of 
dating violence, domestic violence, sexual assault, or stalking has 
occurred.
    Current Regulations: None.
    Proposed Regulations: We propose to add a definition of ``programs 
to prevent dating violence, domestic violence, sexual assault, and 
stalking'' in Sec.  668.46(a). This term would be defined as 
``comprehensive, intentional, and integrated programming, initiatives, 
strategies, and campaigns intended to end dating violence, domestic 
violence, sexual assault, and stalking that are culturally relevant, 
inclusive of diverse communities and identities, sustainable, 
responsive to community needs, and informed by research or assessed for 
value, effectiveness, or outcome.'' These programs must also ``consider 
environmental risk and protective factors as they occur on the 
individual, relationship, institutional, community, and societal 
levels.'' Programs to prevent dating violence, domestic violence, 
sexual assault, and stalking would also ``include both primary 
prevention and awareness programs directed at incoming students and new 
employees and ongoing prevention and awareness campaigns directed at 
students and employees.''
    Reasons: During the negotiated rulemaking sessions, the committee 
formed a subcommittee focused on issues related to the new prevention 
and training requirements that VAWA added to the HEA. This subcommittee 
met several times to discuss possible definitions of the terms relevant 
to these requirements, as discussed under ``Programs to Prevent Dating 
Violence, Domestic Violence, Sexual Assault, and Stalking (Sec.  
668.46(j)).'' As a result of its work, the subcommittee recommended 
that the full committee consider adding a definition of the term 
``programs to prevent dating violence, domestic violence, sexual 
assault, and stalking'' in paragraph (a) of Sec.  668.46 to serve as an 
umbrella term for the primary prevention and awareness programs and the 
ongoing prevention and awareness campaigns that institutions must now 
provide.
    The committee members discussed the definition of this term, 
focusing in particular on how to ensure that these programs will 
reflect the best current thinking on the issues of sexual violence 
prevention. Several negotiators argued that many institutions use 
programs and practices that have been shown to be ineffective and that 
reinforce and perpetuate outdated myths about gender roles and 
behaviors, among other things. These negotiators believed that the 
regulations should require institutions to design programs using 
approaches and strategies that research has proven effective in 
preventing dating violence, domestic violence, sexual assault, and 
stalking. Most of the negotiators agreed that institutions should not 
implement programs that have been proven ineffective or harmful, but 
some urged that the term ``research'' should be given a broad 
interpretation to include research conducted according to scientific 
standards as well as assessments for efficacy carried out by 
institutions and other organizations. After consideration of these 
arguments, the committee agreed to propose that these prevention 
programs must be informed by research or assessed for value, 
effectiveness, or outcome.
    Similarly, the negotiators stressed the need to move away from 
programs that inappropriately place the burden on individuals to 
protect themselves, instead of focusing on ways to reduce the risk of 
perpetration. With this in mind, the negotiators agreed to specify that 
programs to prevent dating violence, domestic violence, sexual assault, 
and stalking must address environmental factors that increase the risk 
of violence on numerous levels (i.e., risk factors) and factors that 
decrease the risk of violence or mitigate the effects of a risk factor 
(i.e., protective factors).
    The negotiators also discussed the need to emphasize that 
institutions should develop their prevention programs thoughtfully and 
deliberately, taking into account the particular circumstances of their 
communities. Generally, the negotiators agreed that it is critical that 
institutions tailor their programs for their students and employees and 
their needs.
    Please see ``Programs to Prevent Dating Violence, Domestic 
Violence, Sexual Assault, and Stalking (Sec.  668.46(j))'' for 
additional discussion of programs to prevent dating violence, domestic 
violence, sexual assault, and stalking.

Definition of Sexual Assault

    Statute: Section 304 of VAWA amended section 485(f) of the HEA to 
require an institution to include in its annual security report certain 
policies, procedures, and programs pertaining to incidents of dating 
violence, domestic violence, sexual assault, and stalking. VAWA also 
added a provision to section 485(f)(6)(A) defining ``sexual assault'' 
as an offense classified as a forcible or nonforcible sex offense under 
the FBI's UCR program.
    Current Regulations: None.
    Proposed Regulations: We propose to add a definition of the term 
``sexual assault'' in Sec.  668.46(a). This term would be defined as 
``an offense that meets the definition of rape, fondling, incest, or 
statutory rape as used in the FBI's UCR program and included in 
Appendix A'' to subpart D of part 668.
    Reasons: Section 485(f)(6)(A)(v) of the HEA defines sexual assault 
to mean ``an offense classified as a forcible or nonforcible sex 
offense under the uniform crime reporting system of the Federal Bureau 
of Investigation.'' Our proposed regulations reflect this definition. 
However, for the reasons discussed under ``Crimes That Must Be Reported 
and Disclosed,'' we have removed references to ``forcible'' and 
``nonforcible'' sex offenses. We have also proposed to identify the sex 
offenses that ``sexual assault'' would include to make this definition 
clear.

Definition of Stalking

    Statute: Section 304 of VAWA amended sections 485(f)(6)(A) and 
485(f)(7) of the HEA to specify that the term ``stalking'' has the 
meaning given the term in section 40002(a) of the Violence Against 
Women Act of 1994 (42 U.S.C. 13925(a)). The Violence Against Women Act 
of 1994 defines the term ``stalking'' to mean ``engaging in a course of 
conduct directed at a specific person that would cause a reasonable 
person to fear for his or her safety or the safety of others; or suffer 
substantial emotional distress.''
    Current Regulations: None.
    Proposed Regulations: We propose to add a definition of the term 
``stalking'' in Sec.  668.46(a). This definition would mirror the 
definition in section 40002(a) of the Violence Against Women Act of 
1994 while also defining some of the terms within that definition. 
``Course of

[[Page 35428]]

conduct'' would be defined to mean two or more acts, including, but not 
limited to, acts in which the stalker directly, indirectly, or through 
third parties, by any action, method, device, or means, follows, 
monitors, observes, surveils, threatens, or communicates to or about a 
person, or interferes with a person's property. ``Substantial emotional 
distress'' would mean significant mental suffering or anguish that may, 
but does not necessarily, require medical or other professional 
treatment or counseling. ``Reasonable person'' would mean a reasonable 
person under similar circumstances and with similar identities to the 
victim. Finally, the proposed regulations would clarify that, for the 
purpose of complying with the requirements of the Clery Act, including 
for statistics purposes, any incident that meets this definition of 
stalking would be considered a crime.
    Reasons: The proposed definition of stalking is based largely on 
the work of a subcommittee that was created to focus on issues related 
to the definition of stalking and counting incidents of stalking. This 
subcommittee, which included experts from the Stalking Resource Center, 
suggested that the Department add clarifying language to the VAWA 
definition of stalking based on the recommendations in the ``Model 
Stalking Code'' issued by the National Center for Victims of Crime.\2\ 
In particular, the subcommittee focused on defining several terms 
within VAWA's definition of stalking, which had substantial overlap 
with the definition in the Model Stalking Code.
---------------------------------------------------------------------------

    \2\ www.victimsofcrime.org/docs/src/model-stalking-code.pdf?sfvrsn=0.
---------------------------------------------------------------------------

    First, the subcommittee suggested that the Department adopt the 
definition of ``course of conduct'' from the Model Stalking Code which 
is ``two or more acts, including, but not limited to, acts in which the 
stalker directly, indirectly, or through third parties, by any action, 
method, device, or means, follows, monitors, observes, surveils, 
threatens, or communicates to or about, a person, or interferes with a 
person's property.'' The full committee accepted this suggestion 
because this comprehensive description appropriately covers the wide 
range of behaviors that a perpetrator might exhibit when stalking a 
victim. In particular, the committee agreed that this definition would 
appropriately include means of stalking that are particularly troubling 
on college campuses, such as cyberstalking and the public distribution 
(e.g., online) of materials of a personal or intimate nature about a 
victim to humiliate, degrade, or expose the victim. While the committee 
initially discussed developing a special rule to address cyberstalking, 
the negotiators representing law enforcement and members of the 
subcommittee from the Stalking Resource Center strongly recommended 
against doing so, noting that cyberstalking is simply one form of 
stalking and is typically treated under the law the same way as any 
other stalking course of conduct, and that stalking someone through 
electronic means is frequently intertwined with other forms of 
stalking.
    Second, the subcommittee suggested adding clarifying language to 
explain the phrase ``substantial emotional distress.'' In particular, 
the subcommittee suggested defining ``emotional distress'' similarly to 
the Model Stalking Code, which defines the term to mean ``significant 
mental suffering or distress that may, but does not necessarily, 
require medical or other professional treatment or counseling.'' 
Because the Model Stalking Code uses the term ``significant'' in 
defining ``emotional distress'' the Committee was satisfied with 
adopting that language to define ``substantial emotional distress'' in 
the proposed regulations.
    Third, the subcommittee discussed the phrase ``would cause a 
reasonable person to fear for his or her safety or the safety of 
others.'' In particular, the subcommittee noted that the definition of 
stalking does not require a victim to actually suffer substantial 
emotional distress, but instead only that the course of conduct would 
cause a reasonable person to suffer distress. Further, the subcommittee 
suggested that the Department adopt the Model Stalking Code's 
definition of a ``reasonable person'' to mean ``a reasonable person in 
the victim's circumstances.'' The Department did not initially 
incorporate this definition of ``reasonable person'' in the draft 
regulations presented to the negotiators during the second session 
because the term ``reasonable person'' is generally understood and we 
were not convinced that further elaboration was needed. Some of the 
negotiators agreed that the ``reasonable person'' standard is a concept 
used in law and in a number of situations over hundreds of years and 
that trying to nuance it to fit a particular set of circumstances would 
weaken the generality and adaptability of the standard. Other 
negotiators, however, argued that a reasonable person, for Clery Act 
purposes, should be defined in a way that would speak to the identities 
and experiences of all members of the campus community. Ultimately, the 
committee agreed to define the term ``reasonable person'' within the 
definition of stalking to mean a reasonable person under similar 
circumstances and with similar identities to the victim. The 
negotiators felt that this definition would produce the best outcomes 
in terms of ensuring that the perspective from which an institution 
evaluates a report of stalking reflects the experience of the victim.
    Finally, as with dating violence and domestic violence, the 
proposed regulations provide that any incident that meets the 
definition of stalking would be considered a ``crime'' for the purposes 
of the Clery Act. We have included this provision to make it clear that 
all such incidents would have to be recorded in an institution's 
statistics and to improve the readability of the regulations.

Annual Security Report

Memorandum of Understanding

    Statute: Prior to the passage of the Higher Education Opportunity 
Act of 2008 (HEOA), institutions were required to include in their 
annual security reports a statement of current policies concerning 
campus law enforcement. Among other things, this statement had to 
include information about the ``enforcement authority of security 
personnel, including their working relationship with State and local 
police agencies.'' Section 488(e)(1)(B) of the HEOA amended section 
485(f)(1)(C) of the HEA to explicitly require institutions to include 
in this policy statement information about any agreements, such as 
written memoranda of understanding, that they have with State and local 
law enforcement agencies with respect to the investigation of alleged 
criminal offenses.
    Current Regulations: Section 668.46(b)(4)(i) currently requires an 
institution to include in its annual security report a statement of 
current policies concerning campus law enforcement that addresses the 
enforcement authority of security personnel, including their 
relationship with State and local police agencies and whether those 
security personnel have the authority to arrest individuals.
    Proposed Regulations: We propose to revise Sec.  668.46(b)(4)(i) to 
reflect the changes made by the HEOA and to further clarify the 
existing requirements. Specifically, we propose to require institutions 
to address in the statement of current policies concerning campus law 
enforcement the jurisdiction of security personnel, as well as any 
agreements, such as written memoranda of understanding between the 
institution and State and local police

[[Page 35429]]

agencies, for the investigation of alleged criminal offenses.
    Reasons: The Department had previously not reflected the statutory 
provision regarding agreements between campus security agencies and 
State and local police in the regulations. Over the last several years, 
however, the Department has received requests to incorporate this 
provision into the regulations to make the regulations more complete. 
As a result, we are proposing to add this provision to the regulations.
    Additionally, we are proposing to add the words ``and 
jurisdiction'' in Sec.  668.46(b)(4)(i) to make it explicit that 
institutions must include information about jurisdiction when 
addressing the enforcement authority of campus law enforcement. We 
believe that this will provide the campus community with a better 
understanding of the physical locations in which campus law enforcement 
will patrol or otherwise carry out its duties.

Elects To or Is Unable To Report

    Statute: Prior to the enactment of VAWA, section 485(f)(1)(C)(iii) 
of the HEA required institutions to include in their annual security 
reports a statement of current policies concerning campus law 
enforcement that addresses, among other things, policies that encourage 
accurate and prompt reporting of all crimes to the campus police and 
the appropriate law enforcement agencies. Section 304 of VAWA amended 
this provision to clarify that this policy statement must address 
accurate and prompt reporting of all crimes to the campus police and 
the appropriate law enforcement agencies when the victim of the crime 
elects or is unable to make such a report.
    Current Regulations: Current Sec.  668.46(b)(4)(ii) requires 
institutions to include in their annual security reports a statement of 
current policies concerning campus law enforcement that, among other 
things, encourages accurate and prompt reporting of all crimes to the 
campus police and the appropriate police agencies.
    Proposed Regulations: In proposed Sec.  668.46(b)(4)(iii), which 
modifies current Sec.  668.46(b)(4)(ii), we require institutions to 
address in their statement of policy concerning campus law enforcement 
their policies to encourage accurate and prompt reporting of all crimes 
to the campus police and the appropriate police agencies, when the 
victim of a crime elects to or is unable to make such a report.
    Reasons: During the negotiated rulemaking sessions, one negotiator 
raised concerns that institutions have historically misinterpreted the 
provision in current Sec.  668.46(b)(4)(ii) to mean that they must 
encourage students and employees to report crimes to law enforcement, 
even when the victim does not wish to initiate a criminal report. The 
negotiator was particularly troubled that a third party would report a 
crime to a responsible employee at the institution (for purposes of 
title IX) against the victim's wishes, triggering a title IX 
investigation or police investigation that could compromise the 
victim's confidentiality. The negotiator asserted that this 
misinterpretation has exacerbated the problem of underreporting of sex 
offenses on college campuses.
    Additionally, some of the negotiators suggested going a step 
further by defining ``unable to report'' to mean that a victim is 
physically unable to make a report, such as when the victim is in a 
coma. They felt that this would address the situation in which a member 
of the campus community would report a crime against the victim's 
wishes after deciding that the victim was psychologically unable to 
make a report out of fear or coercion. Other negotiators, while 
agreeing that it is important to empower victims to make these 
decisions for themselves, opposed adding ``physically'' as a qualifier 
because they believed that it would be interpreted to exclude 
situations where a victim is mentally incapacitated and unable to make 
a report.
    Ultimately, in considering these concerns, the negotiated 
rulemaking committee agreed to incorporate the statutory language into 
the regulations, with the slight modification of adding the word ``to'' 
in the phrase ``elects to or is unable to report,'' for clarity, to 
emphasize that, for the purposes of reporting crimes to the campus 
police and the appropriate police agencies, institutions must encourage 
accurate and prompt reporting of all crimes when the victim of the 
crime elects to report the crime or when the victim is unable to make a 
report.
    We believe that it is important for institutions to encourage 
members of the campus community to report crimes to campus security 
authorities to ensure that all crimes are included in the institution's 
Clery Act statistics. Our longstanding policy is that institutions must 
record reports of the Clery Act crimes in their statistics, regardless 
of whether the report comes from the victim or a third party. On the 
other hand, we understand that, particularly at institutions with sworn 
police officers, the same individuals or departments may be responsible 
for compiling the institution's Clery Act statistics and for initiating 
title IX investigations or pursuing criminal charges. To address these 
concerns, in the Handbook we will encourage institutions to emphasize 
and make clear to students and employees what opportunities exist for 
making confidential reports of crimes for inclusion in the 
institution's Clery Act statistics, for filing a title IX complaint at 
the institution, and for obtaining counseling or treatment without 
initiating a title IX investigation or criminal investigation.

Programs and Procedures Regarding Dating Violence, Domestic Violence, 
Sexual Assault, and Stalking--Policy Statement

    Statute: Prior to the enactment of VAWA, section 485(f)(8)(A) of 
the HEA required institutions to include in their annual security 
reports a statement of policy regarding their programs to prevent 
sexual assaults on campus and the procedures that they will follow once 
a sex offense has occurred. Section 304 of VAWA revised and expanded 
the types of information that institutions must include in this policy 
statement. The following chart summarizes the changes that VAWA made to 
this required policy statement in the HEA:

------------------------------------------------------------------------
             Pre-VAWA                             Post-VAWA
------------------------------------------------------------------------
Each institution of higher          Each institution of higher education
 education participating in any      participating in any program under
 program under this title, other     this title and title IV of the
 than a foreign institution of       Economic Opportunity Act of 1965,
 higher education, shall develop     other than a foreign institution of
 and distribute as part of the       higher education, shall develop and
 annual security report a            distribute as part of the report
 statement of policy regarding--     described in paragraph (1) a
                                     statement of policy regarding--
(i) The institution's campus        (i) The institution's programs to
 sexual assault programs, which      prevent dating violence, domestic
 shall be aimed at the prevention    violence, sexual assault, and
 of sex offenses; and                stalking; and

[[Page 35430]]

 
(ii) Procedures followed once a     (ii) The procedures that the
 sex offense has occurred.           institution will follow once an
                                     incident of dating violence,
                                     domestic violence, sexual assault,
                                     or stalking has been reported,
                                     including a statement of the
                                     standard of evidence that will be
                                     used during any institutional
                                     conduct proceeding arising from the
                                     report.
The policy statement shall address  The policy statement shall address
 the following areas:                the following areas:
(i) Education programs to promote   (i) Education programs to promote
 the awareness of rape,              the awareness of rape, acquaintance
 acquaintance rape, and other sex    rape, dating violence, domestic
 offenses.                           violence, sexual assault, and
                                     stalking, which shall include--
                                      (I) Primary prevention and
                                    awareness programs for all incoming
                                    students and new employees, which
                                    shall include--
                                      (aa) A statement that the
                                    institution of higher education
                                    prohibits the offenses of dating
                                    violence, domestic violence, sexual
                                    assault, and stalking;
                                      (bb) The definition of dating
                                    violence, domestic violence, sexual
                                    assault, and stalking in the
                                    applicable jurisdiction;
                                      (cc) The definition of consent, in
                                    reference to sexual activity, in the
                                    applicable jurisdiction;
                                      (dd) Safe and positive options for
                                    bystander intervention that may be
                                    carried out by an individual to
                                    prevent harm or intervene when there
                                    is a risk of dating violence,
                                    domestic violence, sexual assault,
                                    or stalking against a person other
                                    than such individual;
                                      (ee) Information on risk reduction
                                    to recognize warning signs of
                                    abusive behavior and how to avoid
                                    potential attacks; and
                                      (ff) The information in clauses
                                    (ii) through (vii).
                                      (II) Ongoing prevention and
                                    awareness campaigns for students and
                                    faculty that provide the information
                                    provided in the primary prevention
                                    and awareness programs.
(ii) Possible sanctions to be       (ii) Possible sanctions or
 imposed following the final         protective measures that the
 determination of an on-campus       institution may impose following a
 disciplinary procedure regarding    final determination of an
 rape, acquaintance rape, or other   institutional disciplinary
 sex offenses, forcible or non-      procedure regarding rape,
 forcible.                           acquaintance rape, dating violence,
                                     domestic violence, sexual assault,
                                     or stalking.
(iii) Procedures students should    (iii) Procedures victims should
 follow if a sex offense occurs,     follow if a sex offense, dating
 including who should be             violence, domestic violence, sexual
 contacted, the importance of        assault, or stalking has occurred,
 preserving evidence as may be       including information in writing
 necessary to the proof of           about--
 criminal sexual assault, and to    (I) The importance of preserving
 whom the alleged offense should     evidence as may be necessary to the
 be reported.                        proof of criminal dating violence,
                                     domestic violence, sexual assault,
                                     or stalking, or in obtaining a
                                     protection order.
                                    (II) To whom the alleged offense
                                     should be reported.
(iv) Informing students of their      (III) Options regarding law
 options to notify proper law       enforcement, including notification
 enforcement authorities,           of the victim's option to--
 including on-campus and local
 police, and the option to be
 assisted by campus authorities in
 notifying such authorities, if
 the student so chooses.
                                      (aa) Notify proper law enforcement
                                    authorities, including on-campus and
                                    local police.
                                      (bb) Be assisted by campus
                                    authorities in notifying law
                                    enforcement authorities if the
                                    victim so chooses.
                                      (cc) Decline to notify such
                                    authorities.
                                      (IV) Where applicable, the rights
                                    of victims and the institution's
                                    responsibilities regarding orders of
                                    protection, no-contact orders,
                                    restraining orders, or similar
                                    lawful orders issued by a criminal,
                                    civil, or tribal court.
(iv) Procedures for on-campus       (iv) Procedures for institutional
 disciplinary action in cases of     disciplinary action in cases of
 alleged sexual assault, which       alleged dating violence, domestic
 shall include a clear statement     violence, sexual assault, or
 that--                              stalking, which shall include a
                                     clear statement that--
                                    (I) Such proceedings shall--
                                      (aa) Provide a prompt, fair, and
                                    impartial investigation and
                                    resolution; and
                                      (bb) Be conducted by officials who
                                    receive annual training on the
                                    issues related to dating violence,
                                    domestic violence, sexual assault,
                                    and stalking and how to conduct an
                                    investigation and hearing process
                                    that protects the safety of victims
                                    and promotes accountability.
(A) The accuser and the accused       (II) The accuser and the accused
 are entitled to the same           are entitled to the same
 opportunities to have others       opportunities to have others present
 present during a campus            during an institutional disciplinary
 disciplinary proceeding; and       proceeding, including the
                                    opportunity to be accompanied to any
                                    related meeting or proceeding by an
                                    advisor of their choice; and
(B) Both the accuser and the          (III) Both the accuser and the
 accused shall be informed of the   accused shall be simultaneously
 outcome of any campus              informed, in writing, of--
 disciplinary proceeding brought    (aa) The outcome of any
 alleging a sexual assault.          institutional disciplinary
                                     proceeding that arises from an
                                     allegation of dating violence,
                                     domestic violence, sexual assault,
                                     or stalking;
                                    (bb) The institution's procedures
                                     for the accused and the victim to
                                     appeal the results of the
                                     institutional disciplinary
                                     proceeding;
                                      (cc) Any change to the results
                                    that occurs prior to the time that
                                    the results become final; and
                                      (dd) When such results become
                                    final.
(v) (See the 8th row in this table  (v) Information about how the
 above).                             institution will protect the
                                     confidentiality of victims,
                                     including how publicly available
                                     recordkeeping will be accomplished
                                     without the inclusion of
                                     identifying information about the
                                     victim, to the extent permissible
                                     by law.
(iv) Notification of students of    (vi) Written notification of
 existing counseling, mental         students and employees about
 health, or student services for     existing counseling, health, mental
 victims of sexual assault, both     health, victim advocacy, legal
 on campus and in the community.     assistance, and other services
                                     available for victims both on-
                                     campus and in the community.

[[Page 35431]]

 
(vii) Notification of students of   (vii) Written notification of
 options for, and available          victims about options for, and
 assistance in, changing academic    available assistance in, changing
 and living situations after an      academic, living, transportation,
 alleged sexual assault incident,    and working situations, if so
 if so requested by the victim and   requested by the victim and if such
 if such changes are reasonably      accommodations are reasonably
 available.                          available, regardless of whether
                                     the victim chooses to report the
                                     crime to campus police or local law
                                     enforcement.
------------------------------------------------------------------------

    Current Regulations: The current regulations in Sec.  668.46(b)(11) 
largely mirror the statutory provisions as they existed prior to the 
enactment of VAWA by requiring institutions to include in their annual 
security reports a statement of policy regarding the institution's 
sexual assault programs to prevent sex offenses, and procedures to 
follow when a sex offense occurs. The regulations also outline the 
items that the statement of policy must address, including: (1) A 
description of educational programs to promote the awareness of rape, 
acquaintance rape, and other forcible and nonforcible sex offenses; (2) 
procedures students should follow if a sex offense occurs, including 
procedures concerning who should be contacted, the importance of 
preserving evidence for the proof of a criminal offense, and to whom 
the alleged offense should be reported; (3) information on a student's 
option to notify appropriate law enforcement authorities, including on-
campus and local police, and a statement that institutional personnel 
will assist the student in notifying these authorities, if the student 
requests the assistance of these personnel; (4) notification to 
students of existing on- and off-campus counseling, mental health, or 
other student services for victims of sex offenses; (5) notification to 
students that the institution will change a victim's academic and 
living situations after an alleged sex offense and of the options for 
those changes, if those changes are requested by the victim and are 
reasonably available; (6) procedures for campus disciplinary action in 
cases of an alleged sex offense, including a clear statement that the 
accuser and the accused are entitled to the same opportunities to have 
others present during a disciplinary proceeding and that both the 
accuser and the accused must be informed of any institutional 
disciplinary proceeding brought alleging a sex offense; and (7) 
sanctions the institution may impose following a final determination of 
any institutional disciplinary proceeding regarding rape, acquaintance 
rape, or other forcible or nonforcible sex offense. Additionally, the 
current regulations specify that informing both the accuser and the 
accused of the outcome of a disciplinary proceeding does not constitute 
a violation of FERPA and state that the outcome of a disciplinary 
proceeding means only the institution's final determination with 
respect to the alleged sex offense and any sanction that is imposed 
against the accused.
    Proposed Regulations: We are proposing to revise and re-structure 
Sec.  668.46(b)(11) to reflect the changes made to the HEA by VAWA. 
First, we would revise the regulations to require institutions to 
include in their annual security reports a statement of policy 
regarding the institution's programs to prevent dating violence, 
domestic violence, sexual assault, and stalking and the procedures that 
the institution will follow when one of these crimes is reported. We 
would similarly replace references to ``sex offenses,'' ``campus sexual 
assault,'' and ``criminal sexual assault,'' with references to ``dating 
violence, domestic violence, sexual assault, and stalking,'' where 
applicable, in Sec.  668.46(b)(11)(i) through (vii). Second, in 
proposed Sec.  668.46(b)(11)(i), we propose to replace the current 
provisions in Sec.  668.46(b)(11)(i) with a cross-reference to proposed 
new paragraph (j), which would address the requirements pertaining to 
an institution's educational programs to promote the awareness of 
dating violence, domestic violence, sexual assault, and stalking. 
Third, we propose to replace the current provisions in Sec.  
668.46(b)(11)(vi) and (vii) with a cross-reference to proposed new 
paragraph (k), which would address an institution's procedures for 
campus disciplinary action in cases of alleged dating violence, 
domestic violence, sexual assault, or stalking and the possible 
resulting sanctions. Fourth, we would revise the remaining provisions 
in paragraphs (b)(11)(ii), (iii), (iv), and (v) to reflect the new 
statutory language. Finally, we would add new paragraph (b)(11)(vii) to 
require institutions to state in their annual security reports that, 
when a student or employee reports to the institution that the 
individual was a victim of dating violence, domestic violence, sexual 
assault, or stalking, whether the offense occurred on or off campus, 
the institution will provide that victim with a written explanation of 
the student's or employee's rights and options, as described in 
proposed paragraphs (b)(11)(ii) through (vi).
    Please see the discussions under ``Preserving Evidence, Reporting 
Offenses to Law Enforcement and Campus Authorities, and Protection 
Orders,'' ``Confidentiality of Victims,'' ``Notification of Assistance 
and Services,'' ``Notification of Accommodations,'' ``Written Statement 
of Rights and Options,'' ``Programs to Prevent Dating Violence, 
Domestic Violence, Sexual Assault, and Stalking,'' and ``Institutional 
Disciplinary Proceedings in Cases of Alleged Dating Violence, Domestic 
Violence, Sexual Assault, or Stalking'' for detailed descriptions of 
the changes and additions we are proposing in paragraphs (b)(11)(ii), 
(iii), (iv), (v), and (vii) and in paragraphs (j) and (k) of Sec.  
668.46.
    Reasons: Generally, we are proposing to revise the current 
provisions in Sec.  668.46(b)(11) to reflect the VAWA amendments.
    We are also proposing to replace current paragraph (b)(11)(i) with 
a cross-reference to proposed new paragraph (j), and current paragraphs 
(b)(11)(vi) and (vii) with a cross-reference to proposed new paragraph 
(k), to streamline paragraph (b)(11) and help institutions and the 
public better understand and follow these regulations. This is the same 
approach we took when implementing changes that the HEOA made to the 
Clery Act in 2008 of using cross-references to direct readers to later 
paragraphs for information pertaining to policy statements on missing 
student notification and emergency response and evacuation procedures.

Preserving Evidence, Reporting Offenses to Law Enforcement and Campus 
Authorities, and Protection Orders

    Statute: Prior to the enactment of VAWA, section 485(f)(8)(B)(iii) 
of the HEA required institutions to address in their annual security 
reports the procedures students should follow if a sex offense occurs, 
including who should be contacted, the importance of preserving 
evidence as may be necessary to the proof of criminal sexual assault, 
and to whom the alleged offense should be reported. Further, section 
485(f)(8)(B)(v) of the HEA required institutions to inform students of 
their

[[Page 35432]]

options to notify proper law enforcement authorities, including on-
campus and local police, and the option to be assisted by campus 
authorities in notifying law enforcement authorities, if the student 
chose to do so. VAWA amended section 485(f)(8)(B) of the HEA to require 
institutions to provide this information to ``victims''--not just to 
``students''--in writing; to require that this information be provided 
after an incident of dating violence, domestic violence, sexual 
assault, or stalking--not just after a ``sex offense''--occurs; to add 
information about the importance of preserving evidence that may be 
necessary to prove criminal dating violence, domestic violence, sexual 
assault, or stalking or to obtain a protection order; and to add that 
institutions must notify victims of their right to decline to notify 
law enforcement authorities of such incidents.
    Current Regulations: Section 668.46(b)(11)(ii) of the current 
regulations specifies that an institution's statement of policy 
pertaining to campus sexual assaults must include information about 
procedures students should follow if a sex offense occurs, including 
procedures concerning who should be contacted, the importance of 
preserving evidence for the proof of a criminal offense, and to whom 
the alleged offense should be reported. Section 668.46(b)(11)(iii) 
requires institutions to further include in this statement of policy 
information on a student's option to notify appropriate law enforcement 
authorities, including on-campus and local police, and a statement that 
institutional personnel will assist the student in notifying these 
authorities, if the student requests that assistance.
    Proposed Regulations: We propose to revise Sec.  668.46(b)(11)(ii) 
to require institutions to provide written information to victims about 
the procedures that one should follow if a crime of dating violence, 
domestic violence, sexual assault, or stalking has occurred. In 
complying with this proposed provision, institutions would have to keep 
in mind that dating violence, domestic violence, and stalking would 
include, for Clery Act purposes, any incident that meets the 
definitions of those terms in proposed Sec.  668.46(a). Accordingly, 
institutions would be required to provide certain procedural 
information to victims after one of these incidents occurs, regardless 
of whether the incident would be considered a crime for other, non-
Clery Act purposes.
    In proposed Sec.  668.46(b)(11)(ii)(A), which modifies current 
Sec.  668.46(b)(11)(ii), we would specify that institutions must 
include as part of these procedures information about the importance of 
preserving evidence that may assist in proving that the alleged 
criminal offense occurred or may be helpful in obtaining a protection 
order.
    In proposed Sec.  668.46(b)(11)(ii)(B), which modifies current 
Sec.  668.46(b)(11)(ii), we would clarify that, in disclosing to 
victims to whom they should report an alleged offense, institutions 
must specify how a victim should make that report.
    In proposed Sec.  668.46(b)(11)(ii)(C), which modifies current 
Sec.  668.46(b)(11)(ii), we would add that institutions must inform 
victims not only of their options to notify proper law enforcement 
authorities, including on-campus and local police, and to be assisted 
by campus authorities in doing so, but also of their option to decline 
to notify such authorities.
    Finally, we would add Sec.  668.46(b)(11)(ii)(D) to provide that 
institutions must inform victims of their rights and, where applicable, 
the institution's responsibilities for orders of protection, no-contact 
orders, restraining orders, or similar lawful orders issued by a 
criminal, civil, or tribal court or by the institution.
    Reasons: Generally, we are proposing the changes and additions in 
Sec.  668.46(b)(11)(ii) to implement the amendments to the HEA made by 
VAWA; however, we are proposing some additional clarifications based on 
the discussions at the negotiated rulemaking sessions.
    First, we are proposing in Sec.  668.46(b)(11)(ii)(B) to clarify 
that institutions must include information about how a victim should 
report an alleged offense of dating violence, domestic violence, sexual 
assault, or stalking. Many negotiators indicated that victims often are 
unaware of the processes they must follow to report one of these 
offenses. The negotiators agreed that, in addition to knowing who to 
notify, it would be helpful for victims to have information in an 
institution's annual security report about any processes in place for 
notifying the appropriate officials.
    Second, we are proposing in Sec.  668.46(b)(11)(ii)(D) to specify 
that institutions must address in its statement of policy in the annual 
security report victims' rights and the institution's responsibilities 
for enforcing orders of protection, no- contact orders, restraining 
orders, or similar lawful orders issued by courts and by the 
institution. Some of the negotiators felt strongly that victims should 
be informed of the types of orders that an institution may impose to 
protect a victim after an allegation of dating violence, domestic 
violence, sexual assault, or stalking. During the discussions, a few of 
the negotiators asked the Department to clarify what an institution's 
responsibility would be to enforce orders of protection or similar 
orders issued by a court. Institutions are responsible for 
understanding their legal responsibilities based on the circumstances 
of a particular order. The Department is not in a position to provide 
guidance to institutions on individual protection orders.

Confidentiality of Victims

    Statute: Section 304 of VAWA amended section 485(f)(8)(B)(v) of the 
HEA to require institutions to address in their annual security reports 
how they will protect the confidentiality of victims, including how 
publicly available recordkeeping will be accomplished without the 
inclusion of identifying information about the victim, to the extent 
permissible by law.
    Current Regulations: None.
    Proposed Regulations: We propose to add Sec.  668.46(b)(11)(iii) to 
specify that institutions must address in their annual security reports 
how the institution will: (1) Complete publicly available 
recordkeeping, including for the purposes of Clery Act reporting and 
disclosure, without the inclusion of identifying information about the 
victim; and (2) maintain as confidential any accommodations or 
protective measures provided to the victim, to the extent that 
maintaining such confidentiality would not impair the ability of the 
institution to provide the accommodations or protective measures. 
``Identifying information about the victim'' would have the same 
meaning as ``personally identifying information'' or ``personal 
information'' in section 40002(a)(20) of the Violence Against Women Act 
of 1994 (42 U.S.C. 13925(a)(20)), which is defined to mean individually 
identifying information for or about an individual, including 
information likely to disclose the location of a victim of dating 
violence, domestic violence, sexual assault, or stalking, regardless of 
whether the information is encoded, encrypted, hashed, or otherwise 
protected, including: (1) A first and last name; (2) a home or other 
physical address; (3) contact information (including a postal, email, 
or Internet protocol address, or telephone or facsimile number); (4) a 
social security number, driver license number, passport number, or 
student identification number; and (5) any other information, including 
date of birth, racial or ethnic background, or religious

[[Page 35433]]

affiliation, that would serve to identify an individual.
    Reasons: During the negotiated rulemaking sessions, several 
negotiators expressed concerns that some institutions mistakenly 
believe that they may, or must, disclose identifying information about 
victims to comply with Federal and State open records requirements and 
that information about accommodations and protective measures available 
for victims need not be kept confidential. These negotiators stressed 
the importance of emphasizing in the regulations that institutions 
should preserve the confidentiality of victims to the maximum extent 
possible to avoid re-victimization and retribution and to protect a 
victim's right to privacy. They also noted that several of the 
provisions that VAWA added to the HEA reflect this concern. As a 
result, the proposed regulations would build on the provisions in VAWA 
by requiring institutions to provide information about how they will 
protect the confidentiality of victims and other necessary parties and 
complete publicly available recordkeeping--including the Clery Act 
statistical and crime log requirements--without including information 
about the victim. Institutions should strive to protect a victim's 
confidentiality to the maximum extent possible when providing 
accommodations or instituting protective measures for the victim. We 
believe that the proposed regulations would appropriately balance the 
need to protect a victim's safety and privacy while also ensuring the 
safety of the campus community. These proposed regulations are also 
consistent with section 485(f)(10) of the HEA, which specifies that 
nothing in this section shall be construed to require the reporting or 
disclosure of privileged information.

Notification of Assistance and Services

    Statute: Prior to the enactment of VAWA, section 485(f)(8)(B)(vi) 
of the HEA required institutions to address in their annual security 
reports notification of students of existing counseling, mental health, 
or student services for victims of sexual assault, both on campus and 
in the community. VAWA amended this provision to require institutions 
to include in their annual security reports written notification to 
students and employees about existing counseling, health, mental 
health, victim advocacy, legal assistance, and other services available 
for victims both on campus and in the community.
    Current Regulations: Section 668.46(b)(11)(iv) requires 
institutions to include in their annual security reports a statement on 
notification to students of existing on- and off-campus counseling, 
mental health, or other student services for victims of sex offenses.
    Proposed Regulations: In proposed Sec.  668.46(b)(11)(iv), which 
modifies current Sec.  668.46(b)(11)(iv), we would require institutions 
to specify in their annual security reports that they will provide 
written notification to students and employees about existing 
counseling, health, mental health, victim advocacy, legal assistance, 
visa and immigration assistance, and other services available for 
victims within the institution and in the community.
    Reasons: We propose these changes to implement the changes made by 
VAWA in this area. We are also proposing, however, to expand the list 
of services about which institutions must provide information to 
victims, if those services are available. Specifically, in addition to 
the types of accommodations that VAWA added, we propose that 
institutions must notify victims of any available assistance at the 
institution or in the community with visa or immigration issues. One of 
the negotiators recommended that we add this category because many 
institutions have international students, and these students--and their 
partners and children--if victims of dating violence, domestic 
violence, sexual assault, and stalking may face significant barriers in 
receiving needed services or support due to concerns regarding their 
visa and immigration status. Other committee members agreed that this 
would be valuable information for international students, but also 
noted that, as with the other types of services, institutions would be 
required to provide this information only if the services are 
available. Another negotiator suggested clarifying that institutions 
could provide information about other types of services that may be 
available, arguing that institutions might believe that the topics 
listed in the regulations are the only topics that they should address 
when providing information to students and employees. We agree with the 
negotiator and believe that the regulatory language in proposed Sec.  
668.46(b)(11)(iv) makes it clear that, in addition to the categories 
listed, institutions may provide additional safety and security 
information to their students and employees.

Notification of Accommodations

    Statute: Prior to the enactment of VAWA, section 485(f)(8)(B)(vii) 
of the HEA required institutions to address in their annual security 
reports notification of students of options for, and available 
assistance in, changing academic and living situations after an alleged 
sexual assault, if requested by the victim and if such changes are 
reasonably available. VAWA expanded and clarified this provision to 
require institutions to include in their annual security reports 
written notification to victims about options for, and available 
assistance in, changing academic, living, transportation, and working 
situations, if requested by the victim and if such accommodations are 
reasonably available, regardless of whether the victim chooses to 
report the crime to campus police or local law enforcement.
    Current Regulations: Section 668.46(b)(11)(v) requires institutions 
to include in their annual security reports notification to students 
that the institution will change a victim's academic and living 
situations after an alleged sex offense and of the options for those 
changes, if those changes are requested by the victim and are 
reasonably available.
    Proposed Regulations: In proposed Sec.  668.46(b)(11)(v), which 
modifies current Sec.  668.46(b)(11)(v), we would require institutions 
to also specify in their annual security reports that they will provide 
written notification to victims about options for, and available 
assistance in, changing transportation and working situations, in 
addition to academic and living situations. The regulations would 
clarify that the institution must make these accommodations if the 
victim requests them and if they are reasonably available, regardless 
of whether the victim chooses to report the crime to campus police or 
local law enforcement.
    Reasons: We are proposing these changes to implement the changes 
made by VAWA. Some negotiators were concerned that some institutions 
believe that they are not required to provide accommodations if a 
victim chooses not to report the crime to local law enforcement. To 
address this concern, we are proposing to clarify in this provision 
that institutions must provide these accommodations if they are 
requested by the victim, regardless of whether the victim reports the 
crime to local law enforcement.

Written Statement of Rights and Options

    Statute: VAWA added section 485(f)(8)(C) to the HEA to require an 
institution to provide a student or employee who reports to the 
institution that the student or employee has been a victim of dating 
violence, domestic violence, sexual assault, or stalking with a written 
explanation of that person's rights and options, as described in 
sections 485(f)(8)(B)(ii) through

[[Page 35434]]

(f)(8)(B)(vii) of the HEA. Institutions must provide this written 
explanation to these victims, regardless of whether the offense 
occurred on or off campus.
    Current Regulations: None.
    Proposed Regulations: We propose to add Sec.  668.46(b)(11)(vii) to 
require institutions to specify in their annual security reports that, 
when a student or employee reports to the institution that the student 
or employee has been a victim of dating violence, domestic violence, 
sexual assault, or stalking, whether the offense occurred on or off 
campus, the institution will provide the student or employee with a 
written explanation of the student's or employee's rights and options, 
as described in proposed Sec.  668.46(b)(11)(ii) through (b)(11)(vi).
    Reasons: We are proposing these changes to implement VAWA.

Annual Crime Statistics

Crimes That Must Be Reported and Disclosed

    Statute: Prior to VAWA, section 485(f)(1)(F) of the HEA required 
institutions to report to the Department and disclose in their annual 
security reports the most recent three years' worth of statistics 
concerning the occurrence of certain crimes on campus, in or on 
noncampus buildings or property, and on public property that are 
reported to campus security authorities or local police agencies. VAWA 
expanded the list of crimes for which institutions must report and 
disclose statistics to include incidents of dating violence, domestic 
violence, and stalking that were reported to campus security 
authorities or local police agencies. The following chart summarizes 
the reportable crimes under the Clery Act prior to and subsequent to 
VAWA:

------------------------------------------------------------------------
                 Pre-VAWA                             Post-VAWA
------------------------------------------------------------------------
Primary crimes:                             Primary crimes:
    Murder                                     Murder.
    Sex Offenses                               Sex Offenses.
    Robbery                                    Robbery.
    Aggravated Assault                      Aggravated Assault.
    Burglary                                   Burglary.
    Motor Vehicle Theft                     Motor Vehicle Theft.
    Manslaughter                               Manslaughter.
    Arson                                      Arson.
If determined to be a hate crime:           If determined to be a hate
                                             crime:
    Larceny-Theft                              Larceny-Theft.
    Simple Assault                             Simple Assault.
    Intimidation                               Intimidation.
    Destruction, Damage, or Vandalism of       Destruction, Damage, or
     Property                                   Vandalism of Property.
    Any Other Crime Involving Bodily           Any Other Crime Involving
     Injury                                     Bodily Injury.
Arrests and referrals for disciplinary      Arrests and referrals for
 action for:                                 disciplinary action for:
    Weapons Possession                         Weapons Possession.
    Liquor Law Violations                      Liquor Law Violations.
    Drug Law Violations                        Drug Law Violations.
                                            VAWA crimes:
                                               Dating Violence.
                                               Domestic Violence.
                                               Stalking.
------------------------------------------------------------------------

    Current Regulations: The current regulations in Sec.  668.46(c) 
require institutions to report to the Department statistics for the 
three most recent calendar years concerning the occurrence on campus, 
in or on noncampus buildings or property, and on public property of 
certain crimes.
     Sec.  668.46(c)(1) requires institutions to report the 
following incidents that are reported to local police agencies or to a 
campus security authority: criminal homicide (including murder and 
nonnegligent manslaughter and negligent manslaughter), sex offenses 
(including forcible and nonforcible sex offenses), robbery, aggravated 
assault, burglary, motor vehicle theft, arson, and arrests and 
referrals for disciplinary action for liquor law violations, drug law 
violations, and illegal weapons possession.
     Sec.  668.46(c)(3) requires institutions to report to the 
Department, by category of prejudice, any of the crimes reported to 
local police agencies or to a campus security authority under paragraph 
(c)(1), the crimes of larceny-theft, simple assault, intimidation, and 
destruction, damage, and vandalism of property, and any other crimes 
involving bodily injury, that manifest evidence that the victim was 
intentionally selected because of the victim's actual or perceived 
race, gender, religion, sexual orientation, ethnicity, or disability.

Under Sec.  668.46(b)(1), institutions must also disclose these 
statistics in their annual security reports.
    In defining the crimes that must be included in the statistics on 
sex offenses, the Department has historically used the definitions of 
sex offenses in the National Incident-Based Reporting System (NIBRS) 
Edition of the FBI's UCR program. Under that approach, the Department 
has collected statistics for crimes that meet the definitions in NIBRS 
for four types of forcible sex offenses--forcible rape, forcible 
sodomy, sexual assault with an object, and forcible fondling--and two 
nonforcible sex offenses--incest and statutory rape.
    Proposed Regulations: We propose to make several changes to Sec.  
668.46(c) regarding the crimes that must be included in the Clery Act 
statistics reported to the Department and included in the institution's 
annual security report. First, we would require institutions to 
maintain statistics about the number of incidents of dating violence, 
domestic violence, and stalking that meet the definitions of those 
terms, as proposed in Sec.  668.46(a). This change is reflected in 
proposed Sec.  668.46(c)(1)(iv).
    Second, we propose to require institutions to report and disclose 
instances of rape, fondling, incest, and statutory rape. Specifically, 
we would revise the definition of ``rape'' in Appendix A to reflect the 
FBI's recently updated definition in the UCR Summary Reporting System 
(SRS), which incorporates the NIBRS categories of rape, sodomy, and 
sexual assault with

[[Page 35435]]

an object. Because instances of rape, sodomy, and sexual assault with 
an object would all be included under the definition of rape, we would 
no longer collect statistics for those crime categories separately. We 
would continue to use the definitions of ``sex offenses,'' 
``fondling,'' ``incest,'' and ``statutory rape'' from the NIBRS edition 
of the UCR; however, we would revise these definitions to reflect the 
FBI's updated definitions. Additionally, we would eliminate the 
distinction between forcible and nonforcible sex offenses and refer 
simply to sex offenses. With these changes, the sex offenses and their 
definitions for the purposes of the Clery Act would be:
     Sex Offenses (from NIBRS): Any sexual act directed against 
another person without the consent of the victim, including instances 
where the victim is incapable of giving consent.
     Rape (from SRS): The penetration, no matter how slight, of 
the vagina or anus with any body part or object, or oral penetration by 
a sex organ of another person, without the consent of the victim.
     Fondling (from NIBRS): The touching of the private body 
parts of another person for the purpose of sexual gratification, 
without the consent of the victim, including instances where the victim 
is incapable of giving consent because of his/her age or because of 
his/her temporary or permanent mental incapacity.
     Incest (from NIBRS): Nonforcible sexual intercourse 
between persons who are related to each other within the degrees 
wherein marriage is prohibited by law.
     Statutory Rape (from NIBRS): Nonforcible sexual 
intercourse with a person who is under the statutory age of consent.

The following chart summarizes the proposed changes to the collection 
of statistics regarding sex offenses:

------------------------------------------------------------------------
          Current approach                     Proposed approach
------------------------------------------------------------------------
Sex Offenses--Forcible:               Sex Offenses:
  Forcible Rape                         Rape.
  Forcible Sodomy
  Sexual Assault with an Object
  Forcible Fondling                     Fondling.
Sex Offenses--Nonforcible:
  Incest                              Incest.
  Statutory Rape                      Statutory Rape.
------------------------------------------------------------------------

    Finally, we propose to restructure the paragraph by consolidating 
all of the reportable Clery Act crimes under Sec.  668.46(c)(1). Under 
this proposed structure, we would: group the primary crimes of criminal 
homicide (including murder and nonnegligent manslaughter and negligent 
manslaughter), sex offenses (rape, fondling, incest, and statutory 
rape), robbery, aggravated assault, burglary, motor vehicle theft, and 
arson under Sec.  668.46(c)(1)(i); move arrests and disciplinary 
actions for liquor law violations, drug law violations, and illegal 
weapons possession to Sec.  668.46(c)(1)(ii); move the reportable hate 
crimes to Sec.  668.46(c)(1)(iii); and add the crimes added by VAWA in 
Sec.  668.46(c)(1)(iv).
    Reasons: We are proposing these changes to implement VAWA, to 
reflect updates to the FBI's definitions of crimes in the UCR program 
and to improve the clarity of the regulations. The negotiators 
considered two primary approaches to collecting statistics on incidents 
of dating violence, domestic violence, and stalking that meet the 
proposed definitions discussed under the Definitions section. First, 
the negotiators discussed a proposal initially presented by the 
Department in which the new crimes would be counted as a subset of the 
primary crimes and hate crimes. For example, if an individual reported 
that her coworker was the victim of an aggravated assault and that this 
coworker's husband was the perpetrator, and if the aggravated assault 
was a felony in that jurisdiction, the crime would be reported as an 
aggravated assault with an additional descriptor identifying it as a 
case of domestic violence. Under this approach, the data would provide 
more context and detail about each particular incident and an incident 
would not appear more than once in an institution's statistics. Several 
of the negotiators supported this approach because it would reduce the 
perception that a particular campus had more crimes than had actually 
occurred. Some negotiators, however, argued that the information 
presented using this approach would be too complicated and that people 
would be less inclined to use the data, reducing its utility. Others 
argued that the statute did not contemplate connecting cases of dating 
violence, domestic violence, and stalking to the primary crimes and the 
hate crimes and that doing so would exceed the Department's authority 
under the HEA. These negotiators proposed an alternate approach of 
requiring institutions to simply provide tallies of the number of 
incidents of each of dating violence, domestic violence, and stalking. 
They believed that this approach would be more in line with the 
statutory intent, less burdensome, and easier to understand, though 
they acknowledged that it would require institutions to count a single 
incident in more than one Clery Act crime category. Ultimately, the 
committee agreed to use the second approach as reflected in these 
proposed regulations. The negotiators noted, however, that institutions 
may opt to provide more detailed information as part of the annual 
security report about incidents of dating violence, domestic violence, 
and stalking on their campuses if they choose. Some institutions 
currently provide hate crime data in their annual security reports in a 
narrative or descriptive format instead of in a tabular format to 
provide more context for each crime. Similarly, we will permit 
institutions to present their statistical information for incidents of 
dating violence, domestic violence, and stalking in a narrative or 
descriptive format, as long as they include statistics for the three 
most recent calendar years, disclosed by geographic location and crime 
category.
    We remain concerned that the approach for reporting and disclosing 
the number of incidents of dating violence, domestic violence and 
stalking in these proposed regulations will not capture critical 
information about the relationship between the perpetrator and the 
victim. We believe it would be helpful for prevention and research 
purposes for the Clery Act statistics to reflect whether the victim was 
murdered by a spouse or other intimate partner. We invite comment on 
whether the approach in these proposed regulations should be modified 
to require institutions to identify the relationship between the 
perpetrator and the victim for some or all of the Clery Act crimes.
    We are also proposing these changes to reflect updates to the FBI's 
UCR program definitions. The FBI has moved away from terminology 
characterizing sex offenses as ``forcible'' or ``nonforcible'' to 
combat the suggestion that a sex offense has not occurred if physical 
force was not involved. Accordingly, we propose to remove the term 
``forcible'' from the definitions in part 668. Additionally, under the 
proposed regulations, institutions would record any crime that meets 
the NIBRS definition of rape, sodomy, or sexual assault as a ``rape'' 
in their annual statistics. Historically, we have used the definitions 
in the NIBRS Edition of the UCR program because the definitions were 
more inclusive with respect to who could be a victim and what types of 
crimes would be considered than in the SRS. However, the FBI recently 
modernized the definition of ``rape'' in the SRS to

[[Page 35436]]

capture gender neutrality and the penetration of any bodily orifice, 
penetration by any object or body part, and offenses in which physical 
force is not involved. We believe, and the negotiators agreed, that 
using the new definition of rape would best capture the various types 
of behaviors and circumstances that are now understood to constitute 
rape, align the Department's regulations with the approach taken by 
other Federal agencies, avoid overlap in the definitions that could 
cause double-counting, and avoid using outdated terminology some may 
find offensive. We also note that the FBI does not consider 
``fondling'' to meet the SRS definition of rape, so we are proposing 
that institutions must continue to report incidents of fondling 
separately. We would continue to use the NIBRS definition of 
``fondling,'' as well as the NIBRS definitions of ``statutory rape'' 
and ``incest,'' but we would update the definitions of those terms to 
match the FBI's revised definitions.
    Lastly, we are proposing to restructure paragraph (c) to improve 
the clarity of the regulations. First, we would add the term ``primary 
crimes'' in paragraph (c)(1) in order to provide a standard, simple way 
to refer to criminal homicide, sex offenses, robbery, aggravated 
assault, burglary, motor vehicle theft, and arson as a group. Law 
enforcement officials often refer to these as ``part 1'' crimes, while 
other individuals refer to these as ``Clery crimes'' or ``main 
crimes.'' We believe that providing a label for this group of crimes 
will make it easier for the Department to describe and explain these 
regulations to the public. Second, we would create a subparagraph 
specifically containing arrests and referrals for disciplinary action. 
We believe that this change will make it clearer to readers that this 
category is distinct from the primary crimes. We are also proposing to 
restructure the regulations to make it explicitly clear that arrests 
and referrals for disciplinary action are a distinct category of Clery 
Act crimes from the primary crimes. Third, we are proposing to create a 
subparagraph specifically containing the hate crimes that are 
reportable under the Clery Act, which would incorporate the primary 
crimes and the four additional crimes added by the HEOA. Lastly, we 
would create paragraph (c)(1)(iv) containing the crimes of dating 
violence, domestic violence, and stalking added by VAWA. We believe 
that the proposed structure clarifies that there are four categories of 
Clery Act crimes and makes it clear that the Hierarchy Rule only 
applies to the primary crimes.

Recording Crimes Reported to a Campus Security Authority

    Statute: Section 485(f)(1)(F) of the HEA requires institutions to 
collect statistics concerning the occurrence on campus, in or on 
noncampus buildings or property, and on public property during the most 
recent calendar year, and during the two preceding calendar years for 
which data are available of certain criminal offenses and of dating 
violence, domestic violence, and stalking that are reported to campus 
security authorities or local police agencies. Additionally, section 
485(f)(12) of the HEA specifies that, for the purposes of reporting the 
statistics described in section 485(f)(1)(F) of the HEA, an institution 
must distinguish among whether the criminal offense occurred on campus, 
in or on a noncampus building or property, on public property, and in 
dormitories or other residential facilities for students on campus.
    Current Regulations: Section 668.46(c)(1) of the regulations 
specifies that institutions must report statistics for the three most 
recent calendar years concerning the occurrence on campus, in or on 
noncampus buildings or property, and on public property of certain 
criminal offenses that are reported to local police agencies or campus 
security authorities. Section 668.46(c)(2) requires institutions to 
record a crime statistic in its annual security report for the calendar 
year in which the crime was reported to a campus security authority. 
Section 668.46(c)(4) requires institutions to provide a geographic 
breakdown of the statistics reported according to whether they occurred 
on campus, in dormitories or other residential facilities for students 
on campus, in or on a noncampus building or property, or on public 
property.
    Proposed Regulations: We propose to revise and reorganize Sec.  
668.46(c) to improve the clarity of these regulations and to 
incorporate changes made by VAWA. First, proposed Sec.  668.46(c)(2), 
which modifies current Sec.  668.46(c)(2), would clarify that 
institutions must include in their crime statistics all crimes reported 
to a campus security authority for purposes of Clery Act reporting. We 
would further clarify that an institution may not withhold, or 
subsequently remove, a reported crime from its crime statistics based 
on a decision by a court, coroner, jury, prosecutor, or other similar 
noncampus official. Additionally, we would specify that Clery Act 
reporting does not require initiating an investigation or disclosing 
identifying information about the victim, as that phrase is defined in 
section 40002(a) of the Violence Against Women Act of 1994 (42 U.S.C. 
13925(a)(20)).
    Second, proposed Sec.  668.46(c)(3), which modifies current Sec.  
668.46(c)(2) (``Recording crimes''), would clarify that a reported 
crime is included in the statistics for the calendar year in which the 
crime was reported to local police agencies or to a campus security 
authority and would direct readers to proposed Sec.  668.46(c)(6) for 
information about the regulations for recording stalking by calendar 
year.
    We would also direct readers to proposed Sec.  668.46(c)(6) for 
information about recording stalking by location.
    Finally, we propose to revise, renumber, and expand current Sec.  
668.46(c)(3) (``Reported crimes if a hate crime''). As noted earlier, 
we propose to add a definition of ``hate crime'' in Sec.  668.46(a) and 
to remove the language describing a hate crime from Sec.  668.46(c)(3). 
We also propose to expand the categories of bias in Sec.  
668.46(c)(4)(iii) and (vii) to include ``gender identity'' and 
``national origin'' to reflect the addition of these categories by 
VAWA.
    Reasons: We are proposing these changes to implement changes that 
VAWA made to the HEA, and to improve the overall clarity of these 
regulations. Over the last several years, the Department has stressed 
to institutions the importance of including all Clery Act crimes that 
are reported to campus security authorities in their statistics, 
regardless of whether an incident was reported by a victim or by a 
third party, and regardless of the results of any decision by a court, 
coroner, jury, prosecutor, or other similar noncampus official. Some 
negotiators reported that institutions have misunderstood the Clery Act 
reporting provisions to mean that they must begin to investigate a 
report of a crime or take other steps that may disclose identifying 
information about a victim before including the crime in their Clery 
Act statistics. While we have addressed these misperceptions in the 
Handbook and through other forms of guidance, we believe that adding a 
provision in the regulations to explicitly state that institutions must 
record all reported crimes will alleviate some of the confusion in the 
field.\3\
---------------------------------------------------------------------------

    \3\ There is one rare situation in which it is permissible for 
an institution to omit a Clery Act crime from its statistics. If, 
after fully investigating a reported crime, authorized law 
enforcement authorities make a formal determination that the crime 
is ``unfounded'' as described in the Handbook for Campus Safety and 
Security Reporting, the institution may exclude the reported crime 
from its statistics. Consistent with other recordkeeping 
requirements that pertain to the title IV HEA programs, if an 
institution omits a Clery Act crime from its Clery Act statistics 
because the crime was officially determined to be `unfounded,' the 
institution must maintain accurate documentation that demonstrates 
the basis for unfounding the crime.

---------------------------------------------------------------------------

[[Page 35437]]

    We are proposing to add cross-references in paragraphs (c)(3)(ii) 
and (c)(5)(iii) to the regulations for recording stalking by calendar 
year and location to implement changes that VAWA made to the HEA. 
Please see the discussions under ``Recording Stalking'' for more 
information.
    Lastly, we are proposing to restructure paragraph (c) to make the 
regulations easier to understand. We believe that using subparagraph 
titles that more readily convey what each provision addresses and that 
minimizing confusing cross-references will help the public better 
understand and comply with these regulations.
    We are proposing to add ``gender identity'' and ``national origin'' 
to the list of categories of bias that apply for the purposes of hate 
crime reporting in paragraph (c)(4) in order to implement changes that 
VAWA made to the HEA.

Recording Stalking

    Statute: As amended by VAWA, section 485(f)(1)(F)(iii) of the HEA 
requires institutions to report on, and disclose in their annual 
security reports, the number of incidents of dating violence, domestic 
violence, and stalking reported to campus security authorities or to 
local police agencies that occur on campus, in or on noncampus 
buildings or property, and on public property.
    Current Regulations: None.
    Proposed Regulations: We propose to add Sec.  668.46(c)(6) to 
clarify how institutions should record reports of stalking, which, 
under the proposed definition in Sec.  668.46(a), involves a pattern of 
incidents. First, we would specify that, when recording reports of 
stalking that include activities in more than one calendar year, an 
institution must include stalking in the crime statistics only for the 
calendar year in which the course of conduct is first reported to a 
local police agency or to a campus security authority. If the course of 
conduct in a pattern continues into a subsequent year, the stalking 
would be recorded in the subsequent year as well. Second, we would 
clarify that an institution must record each report of stalking as 
occurring at only the first location within the institution's Clery 
Geography in which either the perpetrator engaged in the stalking 
course of conduct or the victim first became aware of the stalking. 
Third, we would require that a report of stalking be counted as a new 
and distinct crime that is not associated with a previous report of 
stalking when the stalking behavior continues after an official 
intervention including, but not limited to, an institutional 
disciplinary action or the issuance of a no-contact order, restraining 
order, or any warning by the institution or a court.
    Additionally, as described under the Recording Crimes Reported to a 
Campus Security Authority section, we would add cross-references to 
this provision in proposed Sec. Sec.  668.46(c)(3) and (c)(5) to direct 
readers to additional information pertaining to recording reports of 
stalking.
    Reasons: We are proposing these changes to implement the changes 
that VAWA made to the HEA and to address several challenges that arise 
when determining how to count incidents of stalking. As discussed under 
the Definitions section, we are proposing to define stalking as a 
pattern of behavior. This differs from the definitions of the other 
reportable crimes under the Clery Act, where each incident is counted 
as a unique crime for the purposes of the annual crime statistics. As a 
result, we need a regulation specifically to address how stalking 
should be considered in calculating crime statistics.
    For example, under both the current and the proposed regulations, 
an institution would typically record a statistic for a crime in the 
calendar year in which the crime occurred. With stalking, however, a 
pattern of behavior sometimes spans multiple weeks or months, and a 
pattern that begins in one calendar year may continue into another 
calendar year. Similarly, under both the current and proposed 
regulations, an institution would typically specify whether a crime 
occurred on campus (and, if so, whether it occurred in a dormitory or 
other student housing facility on campus), in or on a noncampus 
building or property, or on public property. With stalking, this rule 
does not always apply clearly. A perpetrator could engage in a single 
type of behavior or a variety of behaviors in multiple parts of the 
institution's Clery Geography. Alternatively, the perpetrator could 
initiate stalking behavior in one part of the institution's Clery 
Geography and the victim could become aware of that behavior while on 
another part of the institution's Clery Geography. For instance, the 
perpetrator could send the victim a menacing text message while on 
campus, and the victim could receive that text message while walking on 
a public sidewalk across the street from the campus. Additionally, 
stalking poses challenges for identifying when one pattern has ended 
and another one has begun. For instance, a perpetrator might stalk a 
victim intensively over the course of two days, cease the behavior for 
a week, and then begin the stalking behavior again.
    The negotiators discussed these various challenges and how to best 
operationalize the new requirement in the HEA to collect statistics on 
stalking. First, some of the negotiators believed that stalking that 
includes activities in more than one calendar year should generally be 
included only in the statistics for the calendar year in which a local 
police agency or campus security authority first learns of the 
behaviors. While many negotiators agreed that this would be a 
reasonable approach, some believed that stalking that continues into 
subsequent calendar years should be included in the statistics for each 
year. These negotiators argued that this approach would be more 
appropriate because including stalking in only one year could 
artificially deflate the numbers of reported crimes. These negotiators 
said that while it would not be appropriate to include a separate 
report for each behavior within a course of conduct, at least including 
a statistic in each year in which the stalking occurs would provide a 
fuller picture of the stalking occurring on campus. Ultimately, the 
negotiating committee agreed to the approach reflected in these 
proposed regulations. Under the proposed regulations, stalking would be 
counted only in the first calendar year in which it is reported unless 
it continues into a new calendar year. For example, if a victim reports 
stalking to local police or a campus security authority in December 
2014 and another report is made in February 2015, the institution would 
record the stalking in both calendar years 2014 and 2015. Although the 
committee reached consensus on this language, the Department is 
concerned that these proposed regulations are not clear and we request 
comment specifically on the issue of how to count stalking that crosses 
calendar years.
    Second, the negotiators discussed how to address issues related to 
the location of the stalking and how to determine when a pattern of 
behavior becomes reportable for Clery Act purposes. Some of the 
negotiators suggested that, for the purposes of counting reports of 
stalking, the Department should expand beyond the traditional physical 
locations that make up an institution's reportable areas (i.e., on 
campus, noncampus buildings or

[[Page 35438]]

property, and public property) to require institutions to count courses 
of conduct in which the perpetrator uses institutional computer 
networks, servers, or other services to stalk a victim. These 
negotiators believed that, given the unique nature of stalking, which 
frequently includes online means of targeting victims, these instances 
should be counted. Other negotiators disagreed, arguing that, under the 
HEA, only crimes that occur in the physical locations enumerated in the 
statute should be reported. Further, they believed that it would be 
difficult to define in the regulations a situation that does not touch 
the institution's reportable locations. They acknowledged, however, 
that stalking would be included in the institution's crime statistics 
as soon as one behavior in the course of conduct occurs in or on the 
institution's campus, noncampus buildings or property, or public 
property.
    The negotiators also discussed how an institution should record 
stalking in terms of location for Clery reporting purposes. Generally, 
the negotiators felt that it was clear that if a stalking course of 
conduct appeared to have occurred in only one Clery Geography location 
(for example, the conduct occurred only on campus) then the crime would 
be included in the statistics for that area. However, some negotiators 
questioned how an institution should categorize a report of stalking 
that touches multiple reportable locations (for example, both on campus 
and public property). Along these lines, the negotiators considered how 
institutions should record the location of a report of stalking if both 
the perpetrator and the victim were in reportable, but different, 
locations.
    After discussing these issues, the negotiators reached consensus on 
the approach reflected in proposed Sec.  668.46(c)(6)(ii), which would 
require an institution to record each report of stalking as occurring 
in the first location in which either the perpetrator engaged in the 
stalking course of conduct, or the victim first became aware of the 
stalking. If a stalker uses institutional computer networks, servers, 
or other such electronic means to stalk a victim, the electronic 
stalking behavior would be reportable where the stalker makes use of 
these means while on Clery geography. In other words, the fact that a 
stalker uses institutional computer networks, servers, or other such 
electronic means to stalk a victim would not, automatically in and of 
itself, make the crime reportable under the Clery Act. We invite public 
comment on whether this approach of applying the existing Clery 
geography requirements to incidents of stalking using electronic means 
would adequately capture stalking that occurs at institutions.
    Third, the negotiators considered how to determine when one 
stalking course of conduct ends and another stalking course of conduct 
begins, particularly when the stalking involves the same victim and 
perpetrator. The committee discussed two main approaches--counting a 
report of stalking as a separate crime either after an official 
intervention or once a specified period of time has elapsed. The 
negotiators offered a variety of ways to define ``official 
intervention.'' Some suggested defining official intervention to mean 
that someone at the institution with authority to take preventive 
action to stop the behavior notifies the perpetrator to cease the 
conduct, while others suggested that a victim's request to the 
perpetrator to cease the conduct would be sufficient. Other negotiators 
believed that official intervention should include protection orders or 
restraining orders issued by a court. In considering these approaches, 
however, the negotiators and members of the public raised a variety of 
concerns, including that institutions might avoid intervening to avoid 
the risk of having to include another count of stalking in their 
statistics if the perpetrator re-offended after the intervention; that 
requiring a victim to contact their stalker to notify them to stop the 
behavior could cause a rapid escalation in violence; and that the means 
of intervention should be flexible to accommodate the ways in which a 
victim might prefer to handle a situation.
    As one approach to this issue, the negotiators discussed the 
possibility that an institution should record a new incident of 
stalking after a significant amount of time passes between stalking 
behaviors. Along these lines, some of the negotiators recommended 
specifying a bright-line period of time, such as two weeks or three 
months, after which an institution would record another instance of 
stalking in its statistics if the course of conduct continued. Other 
negotiators supported leaving a more flexible standard of ``significant 
amount of time'' or otherwise not specifying a standard period because 
they felt that some cases might be better evaluated on a case-by-case 
basis. Along these lines, some of the negotiators argued that any 
standard interval of time would be arbitrary and would not be able to 
accommodate all of the various patterns of stalking in a way that would 
produce an accurate report of the number of stalking crimes at a 
particular institution.
    Ultimately, the negotiators agreed to the approach reflected in 
these proposed regulations. Under these regulations, a stalking course 
of conduct would be recorded as a new crime for Clery Act statistical 
reports after an official intervention. ``Official intervention'' would 
be defined broadly to include formal and informal interventions and 
those initiated by institutional officials or a court. The proposed 
regulations do not include a specific time period as a way of marking 
the end of one incident of stalking and the start of another because 
any time frame would be arbitrary. The Department is particularly 
interested in feedback as to whether there are other ways to address 
this issue, and we invite comment on this.
    Lastly, the negotiators discussed how to count incidents of 
stalking when two campuses are involved; that is, when the victim is on 
one institution's reportable locations and the perpetrator is on 
another institution's reportable locations. Some negotiators expressed 
concern that, if both campuses reported the crime, the result would be 
a ``double-report'' of the same incident. However, other negotiators 
noted that the main issue is not overreporting but underreporting and 
that it is important to reflect the crime in the statistics for each 
campus at which the stalking behavior or results occur. Under proposed 
Sec.  668.46(c)(2), an institution would be required to include all 
reported crimes in its statistics. In applying this rule, if stalking 
were reported to a campus security authority at more than one campus, 
both institutions would have to include the stalking report in their 
Clery Act crime statistics.

Using the FBI's UCR Program and the Hierarchy Rule

    Statute: Section 485(f)(7) of the HEA specifies that the Clery Act 
statistics for murder; sex offenses; robbery; aggravated assault; 
burglary; motor vehicle theft; manslaughter; arson; arrests for liquor 
law violations, drug-related violations, and weapons possession; 
larceny-theft; simple assault; intimidation and destruction; damage; or 
vandalism of property must be compiled in accordance with the 
definitions used in the FBI's UCR program, and the modifications in 
those definitions as implemented pursuant to the Hate Crime Statistics 
Act. The statute does not address the use of other aspects of the FBI's 
UCR program, such as the Hierarchy Rule.
    Current Regulations: Section 668.46(c)(7) requires institutions to 
compile statistics for the crimes listed

[[Page 35439]]

under current paragraphs 668.46(c)(1) and (c)(3) using the definitions 
of crimes provided in Appendix A to subpart D of part 668 and the FBI's 
UCR Hate Crime Data Collection Guidelines and Training Guide for Hate 
Crime Data Collection. The regulations also specify that institutions 
must use either the UCR Reporting Handbook or the UCR Reporting 
Handbook: NIBRS Edition for guidance concerning the application of 
definitions and classification of crimes; however, the regulations 
require institutions to apply the UCR Reporting Handbook in determining 
how to report crimes committed in a multiple-offense situation. In a 
multiple-offense situation (when multiple crimes are committed in a 
single incident), the UCR Reporting Handbook would apply the Hierarchy 
Rule. Under the Hierarchy Rule, institutions would include in their 
statistics only the crime that ranks the highest in the Hierarchy. For 
example, if a victim is raped and then murdered during a single 
incident, the murder would be included in the institution's Clery Act 
statistics, but the rape would not.
    Proposed Regulations: In proposed Sec.  668.46(c)(9), which 
modifies current Sec.  668.46(c)(7), we explicitly state that, in 
compiling and reporting Clery Act crime statistics, institutions must 
conform to the requirements of the Hierarchy Rule in the UCR Reporting 
Handbook. However, we also propose to create an exception to this 
requirement for situations in which a sex offense and a murder occur 
during the same incident. For example, if a victim is raped and 
murdered in a single incident, the institution would include both the 
rape and the murder in its statistics instead of including only the 
murder. Additionally, as discussed under the Definitions section, we 
propose to add a definition of ``Hierarchy Rule'' to Sec.  668.46(a).
    Reasons: We are proposing these changes to implement the changes 
that VAWA made to the HEA and to improve the clarity of the 
regulations. First, we believe that creating a narrow exception to the 
methodology used in the UCR Reporting Handbook in cases where an 
individual is the victim of both a sex offense and a murder reflects 
the goal of the changes that VAWA made to the HEA. In amending the 
Clery Act, Congress emphasized the importance of improving the 
reporting of sex offenses at institutions of higher education. To 
provide the most accurate picture possible of sexual assaults on 
college campuses, all sex offenses reported to campus security 
authorities must be included in the statistics. Without the proposed 
exception to the Hierarchy Rule, if both a sex offense and a murder 
occur in a single incident, the sex offense would not be reflected in 
the statistics. This result would be inconsistent with Congress' goal. 
We note that it should be rare that this exception will apply, but we 
believe that it will contribute toward the goal of ensuring that all 
sexual assaults are included in the Clery Act statistics.
    Second, we believe that explicitly referring to the Hierarchy Rule 
in the regulations will improve the clarity of the regulations. 
Including this requirement in the regulations will help institutions 
understand how to compile their statistics. Further, we believe that 
defining the term ``Hierarchy Rule'' and specifying in the regulations 
how it applies will help members of the public to better understand the 
Clery Act requirements and statistics.

Timely Warning--Withholding Identifying Information

    Statute: Section 485(f)(3) of the HEA requires institutions to make 
timely reports to the campus community on Clery Act crimes reported to 
campus security or local police agencies that pose a threat to other 
students and employees. These warnings must be provided in a manner 
that is timely and that aids in the prevention of similar crimes. VAWA 
amended section 485(f)(3) of the HEA to specify that timely warnings 
must withhold the names of victims as confidential.
    Current Regulations: Section 668.46(e)(1) requires institutions to 
notify the campus community when crimes in current paragraphs 
668.46(c)(1) and (3) are reported to campus security authorities or 
local police agencies, and the institution considers the crime to 
represent a threat to students and employees. The institution must 
provide the notice in a manner that is timely and that will aid in the 
prevention of similar crimes.
    Proposed Regulations: Proposed Sec.  668.46(e)(1), which modifies 
current Sec.  668.46(e)(1), would clarify that an institution must 
withhold as confidential the names and other ``personally identifying 
information or personal information'' of victims (as defined in section 
40002(a) of the Violence Against Women Act of 1994 (42 U.S.C. 
13925(a)(20))), when providing timely warnings.
    Reasons: We are proposing these changes to implement the change 
that VAWA made to the HEA in this area. During the negotiated 
rulemaking sessions, some of the negotiators raised concerns that 
withholding only the name of a victim might not sufficiently protect 
the victim's confidentiality if others could still identify the victim 
based on other information included in the warning. Other negotiators, 
although generally supportive of this goal, noted that, in some cases, 
it could be difficult to provide enough information to allow other 
members of the campus community to take steps to protect themselves 
while withholding all information that could make it possible to 
identify the victim.
    We agree with the negotiators that it is critical to protect a 
victim's confidentiality to the extent possible; however, the safety of 
the campus community must also be a priority. We believe that, in most 
cases, institutions will be able to provide a timely warning without 
including information that will identify the victim.
    We are proposing to adopt the definition of ``personally 
identifying information or personal information'' in section 
40002(a)(20) of the Violence Against Women Act of 1994 (42 U.S.C. 
13925(a)(20)). That definition refers to identifying information for or 
about an individual including information likely to disclose the 
location of a victim of dating violence, domestic violence, sexual 
assault, or stalking, regardless of whether the information is encoded, 
encrypted, hashed, or otherwise protected, including: (1) A first and 
last name; (2) a home or other physical address; (3) contact 
information (including a postal, email or Internet protocol address, or 
telephone or facsimile number); (4) a social security number, driver 
license number, passport number, or student identification number; and 
(5) any other information, including date of birth, racial or ethnic 
background, or religious affiliation, that would serve to identify the 
individual.
    We acknowledge that, to provide an effective timely warning in some 
instances, an institution will have to provide information about the 
location of a crime or, in response to a hate crime, other information 
such as a victim's racial or ethnic background or religious 
affiliation. In these cases, we stress that institutions should 
carefully consider the content of their timely warnings and protect the 
confidentiality of the victim to the extent possible while balancing 
the need to ensure the safety of the campus community.

Programs To Prevent Dating Violence, Domestic Violence, Sexual Assault, 
and Stalking (Sec.  668.46(j))

    Statute: Section 304(a)(5) of VAWA amended section 485(f)(8) of the 
HEA to require that each institution of higher education that 
participates in any title IV, HEA program, other than a foreign 
institution, include a statement of

[[Page 35440]]

policy in the institution's annual security report regarding an 
institution's programs to prevent dating violence, domestic violence, 
sexual assault, and stalking. In accordance with newly amended section 
485(f)(8)(B) of the HEA, the statement of policy must specifically 
address education programs to promote the awareness of rape, 
acquaintance rape, dating violence, domestic violence, sexual assault, 
and stalking and must include primary prevention and awareness programs 
for all incoming students and new employees as well as ongoing 
prevention and awareness campaigns for students and faculty, 
respectively.
    Under new section 485(f)(8)(B)(i)(I) of the HEA, an institution's 
primary prevention and awareness programs for all incoming students and 
new employees must include:
     A statement that the institution of higher education 
prohibits the offenses of dating violence, domestic violence, sexual 
assault, and stalking;
     The definition of dating violence, domestic violence, 
sexual assault, and stalking in the applicable jurisdiction;
     The definition of consent, in reference to sexual 
activity, in the applicable jurisdiction;
     Safe and positive options for bystander intervention that 
may be carried out by an individual to prevent harm or intervene when 
there is a risk of dating violence, domestic violence, sexual assault 
or stalking against a person other than that individual;
     Information on risk reduction to recognize warning signs 
of abusive behavior and how to avoid potential attacks; and
     The information in HEA sections 485(f)(8)(B)(ii) through 
(vii) regarding: Possible sanctions or protective measures that an 
institution may impose following a final determination of an 
institutional disciplinary procedure; procedures victims should follow 
if a sex offense, dating violence, domestic violence, sexual assault, 
or stalking occurs (see the discussion under ``Annual Security Report'' 
for full details on this subject); where applicable, the rights of 
victims and the institution's responsibilities regarding orders of 
protection, no-contact orders, restraining orders, or similar lawful 
orders issued by a criminal, civil, or tribal court; procedures for 
institutional disciplinary action in cases of alleged dating violence, 
domestic violence, sexual assault or stalking (see the discussion under 
``Institutional Disciplinary Proceedings in Cases of Alleged Dating 
Violence, Domestic Violence, Sexual Assault, or Stalking'' for full 
details on this subject); information about how the institution will 
protect the confidentiality of victims, including how publicly 
available recordkeeping will be accomplished without the inclusion of 
identifying information about the victim; written notification of 
students and employees about existing counseling, health, mental 
health, victim advocacy, legal assistance, and other services available 
for victims both on-campus and in the community; and written 
notification of victims about options for, and available assistance in, 
changing academic, living, transportation, and working situations, if 
requested by the victim and if such accommodations are reasonably 
available, regardless of whether the victim chooses to report the crime 
to campus policy or local law enforcement.
    Under new section 485(f)(8)(B)(i)(II) of the HEA, an institution's 
ongoing prevention and awareness campaigns for students and faculty 
must include the same information covered by the institution's primary 
prevention and awareness programs for all incoming students and new 
employees.
    Current Regulations: Under current Sec.  668.46(b)(11), an 
institution must prepare an annual security report that contains a 
statement of policy regarding the institution's campus sexual assault 
programs to prevent sex offenses, and procedures to follow when a sex 
offense occurs. The statement must include a description of educational 
programs to promote the awareness of rape, acquaintance rape, and other 
forcible and nonforcible sex offenses.
    Proposed Regulations: Proposed Sec.  668.46(j) would implement the 
changes VAWA made to section 485(f)(8) of the HEA with regard to 
programs to prevent dating violence, domestic violence, sexual assault, 
and stalking. Specifically, proposed Sec.  668.46(j) would require an 
institution to include a statement of policy in its annual security 
report that addresses the institution's programs to prevent dating 
violence, domestic violence, sexual assault, and stalking.
    Proposed Sec.  668.46(j)(1) would specify the items that must be 
included in the statement of policy, and proposed Sec.  668.46(j)(2) 
would define the terms used in the requirements for the statement of 
policy, discussed below under ``Statement of Policy Requirements in 
Proposed Sec.  668.46(j)(1)'' and ``Definitions of Terms in Proposed 
Sec.  668.46(j)(2),'' respectively. Proposed Sec.  668.46(j)(3) would 
specify that an institution's programs to prevent dating violence, 
domestic violence, sexual assault, and stalking must include, at a 
minimum, the information described in paragraph (j)(1).

Statement of Policy Requirements in Proposed Sec.  668.46(j)(1)

    Under proposed Sec.  668.46(j)(1)(i)(A) through (j)(1)(i)(F), the 
statement must include a description of the institution's primary 
prevention and awareness programs for all incoming students and new 
employees, which in turn must include a statement that the institution 
prohibits the crimes of dating violence, domestic violence, sexual 
assault, and stalking; the definition of ``dating violence,'' 
``domestic violence,'' ``sexual assault,'' and ``stalking'' in the 
applicable jurisdiction; the definition of ``consent,'' in reference to 
sexual activity, in the applicable jurisdiction; a description of safe 
and positive options for bystander intervention; information on risk 
reduction; and the information described in Sec.  668.46(b)(11) and 
(k)(2) of these proposed regulations. The information in proposed Sec.  
668.46(b)(11) consists of a statement of policy regarding the 
institution's programs to prevent dating violence, domestic violence, 
sexual assault, and stalking and the procedures that the institution 
will follow when one of these crimes is reported. The information in 
proposed Sec.  668.46(k)(2) consists of a statement of policy that 
addresses procedures for institutional disciplinary action in cases of 
alleged dating violence, domestic violence, sexual assault or stalking.
    Under proposed Sec.  668.46(j)(1)(ii), the statement of policy must 
also describe the institution's ongoing prevention and awareness 
campaigns for students and employees, which must include the 
information described in paragraphs (j)(1)(i)(A) through (j)(1)(i)(F) 
of the proposed regulations.

Definitions of Terms in Proposed Sec.  668.46(j)(2)

    Proposed Sec.  668.46(j)(2) would define the terms ``awareness 
programs'', ``bystander intervention'', ``ongoing prevention and 
awareness campaigns'', ``primary prevention programs'', and ``risk 
reduction.''
    Under proposed Sec.  668.46(j)(2)(i), the term ``awareness 
programs'' is defined to mean community-wide or audience-specific 
programming, initiatives, and strategies that increase audience 
knowledge and share information and resources to prevent violence, 
promote safety, and reduce perpetration.
    Proposed Sec.  668.46(j)(2)(ii) would define the term ``bystander 
intervention'' to mean safe and positive options that may be carried 
out by an individual or individuals to prevent harm or intervene when 
there is a risk

[[Page 35441]]

of dating violence, domestic violence, sexual assault, or stalking. 
Proposed Sec.  668.46(j)(2)(ii) would further define bystander 
intervention to include recognizing situations of potential harm, 
understanding institutional structures and cultural conditions that 
facilitate violence, overcoming barriers to intervening, identifying 
safe and effective intervention options, and taking action to 
intervene.
    Proposed Sec.  668.46(j)(2)(iii) would define the term ``ongoing 
prevention and awareness campaigns'' to mean programming, initiatives, 
and strategies that are sustained over time and focus on increasing 
understanding of topics relevant to, and skills for addressing, dating 
violence, domestic violence, sexual assault, and stalking, using a 
range of strategies with audiences throughout the institution and 
including information described in paragraph proposed Sec. Sec.  
668.46(j)(1)(i)(A) through (j)(1)(i)(F).
    Proposed Sec.  668.46(j)(2)(iv) would define the term ``primary 
prevention programs'' to mean programming, initiatives, and strategies 
informed by research or assessed for value, effectiveness, or outcome 
that are intended to stop dating violence, domestic violence, sexual 
assault, and stalking before they occur through the promotion of 
positive and healthy behaviors that foster healthy, mutually respectful 
relationships and sexuality, encourage safe bystander intervention, and 
seek to change behavior and social norms in healthy and safe 
directions.
    Under proposed Sec.  668.46(j)(2)(v), the term ``risk reduction'' 
means options designed to decrease perpetration and bystander inaction 
and to increase empowerment for victims to promote safety and to help 
individuals and communities address conditions that facilitate 
violence.
    Reasons: The negotiators discussed these new provisions with a 
focus on who would need to receive this training and by what means, how 
several terms in the statute should be defined, and how to ensure that 
these programs reflect the best practices in the field of sexual 
violence prevention. At the end of the first session, the committee 
agreed to form a subcommittee to develop proposals regarding programs 
to prevent dating violence, domestic violence, sexual assault, and 
stalking. The subcommittee met several times to develop proposals for 
regulatory language on this issue.
    First, the negotiators discussed several practical questions with 
respect to the target audiences for these programs, whether these 
programs would be mandatory, and whether institutions could offer these 
programs through computer-based training modules. Noting that the 
statute requires institutions to provide primary prevention and 
awareness programs for incoming students and new employees, and ongoing 
prevention and awareness campaigns to students and faculty, the 
negotiators suggested clarifying who would be considered a ``student'' 
or an ``employee''. Several negotiators also wondered if institutions 
were expected to provide prevention and awareness programs to distance 
education students and short-term, continuing education students. Some 
negotiators in particular were concerned that mandating this training 
for all students could pose a significant burden for institutions like 
community colleges, where many students take only non-credit courses 
and may be on campus only once for a single four-hour class. Along 
these lines, some negotiators were concerned that it would be very 
difficult to ensure that all students, including distance education 
students, have received training, particularly if the training had to 
be offered in person. From a victim's perspective, one negotiator 
suggested that the programs should be available--but not mandatory--
because the programs could be traumatizing for some victims.
    On the other hand, some negotiators believed strongly that every 
student, regardless of whether they are taking a class for credit, 
should be required to complete training, arguing that this type of 
training is critical because it focuses on violence that can destroy 
lives. They believed that these programs can be designed in a way that 
avoids re-traumatization, and that it can support victims and non-
victims by educating them about what is a crime and what rights and 
options exist. They further argued that anyone can be a victim of 
dating violence, domestic violence, sexual assault, or stalking, even 
if they are on campus briefly only one time, and that it would still be 
important for those individuals to know what rights and options they 
have and what procedures to follow with respect to these crimes, as 
outlined in the statute.
    In addressing these concerns, the Department decided to interpret 
the statute consistent with other Clery Act requirements by requiring 
institutions to offer these types of training to ``enrolled'' students. 
Under Sec. Sec.  668.41 and 668.46, institutions must distribute the 
annual security report to all enrolled students. Applying that same 
approach here would make it clear that the same students who must 
receive the annual security report must also be offered the training. 
The Department's regulations in 34 CFR Sec.  668.2 define ``enrolled'' 
to mean a student who (1) has completed the registration requirements 
(except for the payment of tuition and fees) at the institution that he 
or she is attending; or (2) has been admitted into an educational 
program offered predominantly by correspondence and has submitted one 
lesson, completed by him or her after acceptance for enrollment and 
without the help of a representative of the institution. The 
negotiators agreed with this approach.
    In response to the discussion during the first negotiation session, 
the Department initially agreed to consider developing a definition of 
``employee'' to clarify which individuals working for the institution 
would need to be offered training. However, we subsequently decided not 
to propose a definition of employee for several reasons. First, we note 
that institutions have had to distribute their annual security reports 
to their current employees under Sec. Sec.  668.41 and 668.46 for many 
years, and we have not previously defined the term for those purposes. 
Therefore, institutions should know who they consider to be an employee 
for the purposes of the Clery Act, and we expect that these employees 
will now be offered the new training required by the HEA. Second, given 
the wide variety in arrangements and circumstances in place across 
institutions for providing services to students, other employees, and 
the public, we believe that institutions are best positioned to 
determine who is an ``employee.'' With regards to the requirement that 
institutions provide ongoing prevention and awareness campaigns to 
students and faculty, the negotiators generally agreed that the term 
``faculty'' should be considered equivalent to ``employee.'' The 
proposed regulations in Sec.  668.46(j)(1)(ii) reflect this 
recommendation.
    The Department also noted that, while the statute requires 
institutions to describe the programs focused on prevention and 
awareness of rape, acquaintance rape, dating violence, domestic 
violence, sexual assault, and stalking in their annual security 
reports, it does not require that institutions require every student 
and employee to take the training. We note, however, that institutions 
may adopt policies requiring that all students and employees take this 
training, for example, before completing registration.
    With regard to the means of providing training, the negotiators 
ultimately agreed that programs to prevent dating violence, domestic 
violence, sexual assault, and stalking could be delivered 
electronically so the programs are able

[[Page 35442]]

to reach all of the intended audiences. They acknowledged that students 
enrolled in programs by distance education would be unlikely to be able 
to access these programs in person, and they noted that it could be 
similarly challenging to ensure that all employees receive this 
training in person as well.
    Second, the negotiators urged the Department to clarify several of 
the terms used in the statute, including ``primary prevention,'' 
``bystander intervention,'' and ``risk reduction.'' The subcommittee 
focused much of its work on defining these terms, drawing heavily on 
the work and definitions of the Centers for Disease Control and 
Prevention. Many of the negotiators supported the first set of 
suggestions that the subcommittee offered at the second negotiating 
session. They suggested that the regulations require institutions to 
adopt programs that reflect best practices and methods that have proven 
effective for the prevention of gender violence. Others, however, were 
concerned that the subcommittee's proposals were more prescriptive than 
would be useful given the variety and size of institutions across the 
country. Some of the negotiators also believed that making the 
definitions simple and clear would help individuals and institutions 
better understand, and subsequently comply with, the regulations.
    The subcommittee continued to meet between the second and third 
sessions, and the draft that the Department provided to the committee 
at the start of the third session incorporated the subcommittee's 
revisions. Generally, the revised proposal more closely tracked the 
statutory language and added a definition of ``programs to prevent 
dating violence, domestic violence, sexual assault, and stalking'' to 
Sec.  668.46(a), as discussed under the Definitions section. The 
committee generally accepted the revised draft, though some changes 
were made to the language to address concerns raised by some of the 
negotiators. We note that, while the draft regulations generally 
restate the statutory language, institutions are free to go beyond 
these requirements, for example to include bystander intervention 
training on a variety of topics, such as alcohol and drug use, hazing, 
bullying, and other behaviors. We also note that institutions would not 
be required to provide bystander training separately on each crime of 
dating violence, domestic violence, sexual assault, and stalking and 
that they may provide training that focuses on all four crimes -- or 
more -- as part of a more comprehensive program.
    With regards to proposed Sec.  668.46(j)(3), we are adding this 
provision in order to make it clear that an institution's ``programs to 
prevent dating violence, domestic violence, sexual assault, and 
stalking,'' which under our proposed definition in Sec.  668.46(a) 
would include primary prevention and awareness programs and ongoing 
prevention and awareness campaigns, must include the information 
described in proposed paragraph (j)(1).

Institutional Disciplinary Proceedings in Cases of Alleged Dating 
Violence, Domestic Violence Sexual Assault or Stalking (Sec.  
668.46(k))

    Statute: Section 304(a)(5) of VAWA amended section 485(f)(8) of the 
HEA to require that each institution of higher education that 
participates in any title IV, HEA program, other than a foreign 
institution, include a statement of policy in the institution's annual 
security report addressing the procedures for institutional 
disciplinary action in cases of alleged dating violence, domestic 
violence, sexual assault, or stalking. The statement of policy must 
describe the standard of evidence that the institution will use during 
the proceeding as well as possible sanctions or protective measures 
that the institution may impose after a final determination is made. 
Section 304(a)(5) of VAWA amended section 485(f)(8)(iv) of the HEA to 
require an institution to include in its annual security report a clear 
statement that the institution's disciplinary proceedings shall provide 
a prompt, fair, and impartial investigation and resolution that is 
conducted by officials who receive annual training on the issues 
related to dating violence, domestic violence, sexual assault, and 
stalking, and annual training on how to conduct an investigation and 
hearing process that protects the safety of victims and promotes 
accountability. Section 304(a)(5) further amended section 485(f)(8)(iv) 
of the HEA to require that the accuser and the accused be entitled to 
the same opportunities to have others present during an institutional 
disciplinary proceeding, including the opportunity to be accompanied to 
any related meeting or proceeding by an advisor of their choice and 
that both the accuser and the accused be simultaneously informed, in 
writing, of the outcome of any disciplinary proceeding; the 
institution's procedures for both parties to appeal the results of the 
proceeding; of any change to the results that occurs prior to the 
results becoming final; and, when such results become final.
    Current Regulations: Under current Sec.  668.46(b)(11)(vi)(A), an 
institution must provide a clear statement in its annual security 
report that, in the institution's campus disciplinary proceedings in 
cases of an alleged sex offense, the accuser and the accused are 
entitled to the same opportunities to have others present during a 
disciplinary proceeding. Current Sec.  668.46(b)(11)(vi)(B) requires 
that an institution's annual security report clearly state that both 
the accused and the accuser must be informed of the outcome of any 
institutional disciplinary proceeding brought alleging a sex offense; 
that compliance with Sec.  668.46(b)(11)(vi)(B) does not constitute a 
violation of FERPA on the part of the institution; and, that, for 
purposes of this notification, the outcome of a disciplinary proceeding 
means only the institution's final determination with respect to the 
alleged sex offense and any sanction that is imposed against the 
accused. Lastly, current Sec.  668.46(b)(11)(vii) requires an 
institution's annual security report to clearly disclose the sanctions 
the institution may impose following a final determination of an 
institutional disciplinary proceeding regarding rape, acquaintance 
rape, or other forcible or nonforcible sex offenses.
    Proposed Regulations: The proposed regulations in Sec.  668.46(k) 
would implement the statutory changes requiring an institution that 
participates in any title IV, HEA program, other than a foreign 
institution, to include a statement of policy in its annual security 
report addressing the procedures for institutional disciplinary action 
in cases of alleged dating violence, domestic violence, sexual assault 
or stalking.
    Proposed Sec.  668.46(k)(1)(i) provides that the statement of 
policy must describe each type of disciplinary proceeding used by the 
institution, including the steps, anticipated timelines, and decision-
making process for each, and how the institution determines which type 
of disciplinary hearing to use. Proposed Sec.  668.46(k)(1)(ii) 
provides that the statement of policy must describe the standard of 
evidence that will be used during any disciplinary proceeding involving 
alleged dating violence, domestic violence, sexual assault or stalking. 
Proposed Sec.  668.46(k)(1)(iii) provides that the statement of policy 
must list all possible sanctions an institution may impose following 
the results of any disciplinary proceeding in cases of alleged dating 
violence, domestic violence, sexual assault or stalking. Proposed Sec.  
668.46(k)(1)(iv)

[[Page 35443]]

provides that the policy statement must describe the range of 
protective measures that the institution may offer following an 
allegation of dating violence, domestic violence, sexual assault or 
stalking.
    An institution's statement of policy must provide that its 
disciplinary proceeding will include a prompt, fair, and impartial 
process from the initial investigation to the final result under 
proposed Sec.  668.46(k)(2)(i). The policy statement must provide that 
the proceeding will be conducted by officials who receive annual 
training on the issues related to dating violence, domestic violence, 
sexual assault, and stalking and annual training on how to conduct an 
investigation and hearing process that protects the safety of victims 
and promotes accountability under proposed Sec.  668.46(k)(2)(ii). 
Under proposed Sec.  668.46(k)(2)(iii), an institution's statement of 
policy must provide that its disciplinary proceeding will afford the 
accuser and the accused the same opportunities to have others present 
during an institutional disciplinary proceeding, including the 
opportunity to be accompanied to any related meeting or proceeding by 
an advisor of their choice. Under proposed Sec.  668.46(k)(2)(iv), an 
institution cannot limit the accuser's or accused's choice of an 
advisor or the advisor's presence at a proceeding, but the institution 
may establish restrictions regarding the advisor's participation in the 
proceedings as long as those restrictions are applied equally to both 
the accuser and the accused. Finally, under proposed Sec.  
668.46(k)(2)(v), an institution's statement of policy must require 
simultaneous notification, in writing, to both the accuser and the 
accused of the result of the institutional disciplinary proceeding, the 
institution's procedures for the accused and the victim to appeal the 
result, any change to the result, and when such results become final.
    Proposed Sec.  668.46(k)(3) defines the terms ``prompt, fair, and 
impartial proceeding,'' ``advisor,'' ``proceeding,'' and ``result.'' 
Under proposed Sec.  668.46(k)(3)(i), a ``prompt, fair, and impartial 
proceeding'' includes a proceeding that is: (1) Completed within 
reasonably prompt timeframes designated by an institution's policy, 
including a process that allows for the extension of timeframes for 
good cause with written notice to the accuser and the accused of the 
delay and the reason for the delay; (2) conducted in a manner that is 
consistent with the institution's policies and transparent to the 
accuser and accused, includes timely notice of meetings at which the 
accuser or accused, or both, may be present, and provides timely access 
to the accuser, the accused, and appropriate officials to any 
information that will be used after the fact-finding investigation but 
during informal and formal disciplinary meetings and hearings; and (3) 
conducted by officials who do not have a conflict of interest or bias 
for or against the accuser or the accused.
    Under proposed Sec.  668.46(k)(3)(ii), the term ``advisor'' is 
defined as any individual who provides the accuser or the accused 
support, guidance, or advice.
    Under proposed Sec.  668.46(k)(3)(iii), the term ``proceeding'' 
means all activities related to a non-criminal resolution of an 
institutional disciplinary complaint, including, but not limited to, 
fact-finding investigations, formal or informal meetings, and hearings.
    Finally, under proposed Sec.  668.46(k)(3)(iv), the term ``result'' 
means any initial, interim, and final decision by any official or 
entity authorized to resolve disciplinary matters within the 
institution. The definition provides that the ``result'' must include 
any sanctions imposed by the institution and, notwithstanding FERPA (20 
U.S.C. 1232g), the rationale for the result and the sanctions. Having 
defined the term ``result,'' for consistency purposes the proposed 
regulations would also insert the word ``result'' where appropriate to 
replace the existing statutory and regulatory references to the terms 
``outcomes,'' ``resolution,'' and ``final determinations.''.
    Reasons: Proposed Sec.  668.46(k) would implement the statutory 
changes requiring each institution of higher education that 
participates in any title IV, HEA program, except foreign institutions, 
to include a statement of policy in the institution's annual security 
report addressing the procedures for institutional disciplinary action 
in cases of alleged dating violence, domestic violence, sexual assault, 
or stalking.

Definition of Terms in Proposed Sec.  668.46(k)(3)

    Proposed Sec.  668.46(k)(3) defines the terms ``prompt, fair, and 
impartial proceeding,'' ``advisor,'' ``proceeding,'' and ``result.''
    At the first session of negotiated rulemaking, several of the non-
Federal negotiators asked that the Department define a ``prompt, fair, 
and impartial'' disciplinary proceeding in proposed Sec.  668.46(k). 
These negotiators requested that the Department consider including, as 
part of the definition, a provision that requires an institution's 
disciplinary proceeding to mirror OCR's title IX guidance, especially 
as that guidance relates to the use of the preponderance of the 
evidence standard in disciplinary proceedings used to resolve a title 
IX complaint. Other non-Federal negotiators suggested that VAWA was not 
intended to codify the required use of the preponderance of the 
evidence standard, but instead required only that an institution state 
the standard of evidence that will be used.
    In response to this request by non-Federal negotiators, the 
Department introduced proposed language defining the term ``prompt, 
fair and impartial disciplinary proceeding'' to mean a proceeding that 
is completed within the timeframe designated by an institution's policy 
and without undue delay; conducted in a manner that is consistent with 
the institution's policies and transparent to all parties; conducted by 
officials who do not have a real or perceived conflict of interest or 
bias for or against the accused or the accuser; and, at the request of 
non-Federal negotiators, at a minimum, comply with guidance issued by 
OCR. One non-Federal negotiator suggested that the Department eliminate 
the reference to a ``real or perceived'' conflict of interest because 
the terms ``real or perceived'' are too subjective and would be 
difficult to operationalize at a small campus. Several non-Federal 
negotiators suggested using the standard of actual or potential 
conflict of interest instead.
    With regard to the requirement that a disciplinary hearing comply 
at a minimum with guidance issued by OCR, some non-Federal negotiators 
strongly supported the provision, while others were strongly opposed to 
including this provision. Those arguing against the inclusion of this 
provision stated that, in enacting VAWA, Congress did not require 
institutions to use the preponderance of the evidence standard under 
the Clery Act, but only required that an institution disclose what 
standard of evidence it would use at a disciplinary proceeding for 
conduct covered by the Clery Act. Still others were not comfortable 
with including in these proposed Clery Act regulations a reference to 
guidance issued by OCR under other laws and regulations. It was 
suggested that we cite the statutory language amending the Clery Act 
instead. One non-Federal negotiator voiced her view that title IX is 
largely interpreted judicially or by the Department, and that whether 
or not a provision requiring compliance with title IX in disciplinary 
hearings mandated under the HEA is included in the Clery Act 
regulations does not change title IX requirements. This view

[[Page 35444]]

is consistent with the Department's explanation to the negotiators at 
the start of the rule-making that the Clery Act amendments and 
implementing regulations in no way affect or conflict with Title IX 
requirements, including those interpreted by OCR in its guidance 
documents.
    At the last session of negotiations, the Department presented 
amended draft language in Sec.  668.46(k)(3)(i) defining a ``prompt, 
fair and impartial proceeding'' to include a proceeding that is 
completed within a reasonable timeframe designated by the institution's 
policy and without undue delay, and that is conducted in a manner that: 
(1) Is consistent with the institution's policies and transparent to 
the accuser and accused; (2) includes timely notice to the accuser and 
accused of all meetings relevant to the proceeding; and (3) provides 
timely access to both the accuser and the accused to any information 
that will be used during the proceeding. These changes were met with 
general agreement from the non-Federal negotiators although several 
changes to the specific language were requested. The committee agreed 
to revise the regulations to permit an institution to exceed the 
timeframe in its policy for good cause with written notice to the 
accuser and the accused of the delay and the reason for the delay. This 
language was added in recognition that some delays are unavoidable. The 
proposed requirement for written notice of the delay and the reasons 
for the delay, however, is appropriate to ensure a fair proceeding. The 
Department also notes that, as it relates to Sec.  
668.46(k)(3)(i)(B)(2), the phrase ``timely notice to the accuser and 
accused of all meetings relevant to the proceeding'' is intended to 
ensure that the accuser and the accused have time to adequately prepare 
or to arrange to have an advisor present at all of these meetings, if 
they desire.
    At the third session, the negotiators continued to debate the 
Department's draft language requiring an institution's disciplinary 
proceedings to be conducted by officials who do not have a real or 
perceived conflict of interest or bias, for or against, the accuser or 
the accused. The committee decided to modify this language slightly by 
removing the words ``real or perceived,'' as reflected in proposed 
Sec.  668.46(k)(3)(i)(C); thus, the revised language addresses only 
those officials with an actual conflict of interest or bias. The 
concerns that a perceived conflict of interest may limit the officials 
who can conduct such hearings on small campuses or that some parties in 
a proceeding might abuse the rule by claiming that whoever is acting as 
the official is perceived to be biased convinced the committee to agree 
to this change. Although the prohibition is now limited to those 
officials who have a conflict of interest or bias, the Department 
expects that an institution will make every effort to ensure that 
officials conducting proceedings do not have a perceived conflict of 
interest or bias against either the accused or the accuser.
    The negotiators discussed defining who would be considered an 
``official'' for the purposes of an institutional disciplinary 
proceeding to add clarity to the regulation. Some of the negotiators 
suggested specifying that students could be ``officials'' in this 
context, noting that at many institutions, students often serve as 
officials during a disciplinary proceeding. Other negotiators strongly 
disagreed with this practice, raising concerns that having students 
serve as officials during disciplinary proceedings calls into question 
the possibility of having a prompt, fair, and impartial process, and 
that it can result in re-victimization of the accuser or secondary or 
vicarious traumatization for the student officials. These negotiators 
did not believe that a definition of ``official'' should include 
students. While the Department declined to add a definition of 
``official'' to the proposed regulations, we stress that when an 
institution involves students in a disciplinary proceeding, the 
students are serving as officials of the institution during that 
proceeding and nothing about being a student changes that role. In that 
vein, we note that the requirements in proposed Sec.  668.46(k)(2)(ii) 
pertaining to training for officials and Sec.  668.46(k)(3)(i)(C) 
pertaining to conflicts of interest in a disciplinary proceeding would 
apply to students as well as other individuals serving as officials 
during an institutional disciplinary proceeding.
    Lastly, after consideration of the discussion at the second 
session, the Department removed the reference to Sec.  
668.46(k)(3)(i)(D) which would have required that, in order for an 
institution's disciplinary proceeding to be considered prompt, fair, 
and impartial under the Clery Act, the proceeding must, at a minimum, 
comply with guidance issued by OCR. As the Department explained to the 
negotiators at the start of the rule-making, the Clery regulations 
address only an institution's responsibilities under the Clery Act, and 
do not affect or conflict with the requirements under Title IX as 
interpreted by OCR in its guidance documents. In order to meet Clery 
Act requirements, as amended by VAWA, an institution must only state in 
its annual security report what standard of evidence it uses in its 
disciplinary proceedings regarding sexual assault, dating violence, 
domestic violence, and stalking. This Clery Act requirement does not 
conflict with the Title IX obligation to use the preponderance of the 
evidence standard in Title IX proceedings. A recipient can comply with 
Title IX and the Clery Act by using a preponderance of evidence 
standard in disciplinary proceedings regarding Title IX complaints and 
by disclosing this standard in the annual security report required by 
the Clery Act.
    Please see the section on Advisor of Choice below for a full 
discussion of the definition of ``advisor.''
    Some non-Federal negotiators also indicated at the first session of 
negotiations that it would be helpful for the regulations to define the 
term ``proceeding'' because institutions use a variety of approaches 
when conducting a disciplinary proceeding. In response to the 
discussion at the first session, the Department introduced draft 
regulations at the second session of negotiations defining the term 
``proceeding'' to mean all activities related to the resolution of an 
institutional disciplinary complaint, including, but not limited to, 
fact-finding investigations, formal or informal meetings, and hearings. 
The definition of ``proceeding'' was modified at the last session of 
negotiations to mean all activities related to a non-criminal 
resolution of an institutional disciplinary complaint, including, but 
not limited to, fact-finding investigations, formal or informal 
meetings, and hearings to clarify that institutional disciplinary 
proceedings are not courts of law that resolve criminal matters.
    Lastly, at the first session of negotiated rulemaking the non-
Federal negotiators requested that the Department develop proposed 
regulations in Sec.  668.46(k) that would harmonize the terms 
``results,'' ``outcomes,'' ``resolution,'' and ``final 
determinations,'' with regard to an institution's disciplinary 
proceeding because they found the interchangeable use of these terms 
confusing. In response to this request, the Department introduced draft 
language at the second session that defined the term ``result.'' As 
proposed in Sec.  668.46(k)(3)(iv), ``result'' was defined as an 
initial, interim, and final decision by any official or entity 
authorized to resolve disciplinary matters within the institution. The 
result must include any sanctions imposed by the institution.

[[Page 35445]]

    The proposed definition of ``result'' was generally well-received, 
however, the negotiators debated whether to mandate the inclusion of 
the rationale for the result in the disclosure provided to the parties 
(and therefore in the definition) so that if an institution has an 
appeals process, the accused and the accuser will have a basis for the 
appeal. One non-Federal negotiator felt that including the rationale 
for the result in the proposed regulations would be contrary to the 
definition of ``final results'' in the Department's FERPA regulations 
at 34 CFR 99.39. At the third and last session of negotiations, the 
Department introduced new draft language in Sec.  668.46(k)(3)(iv) to 
amend the definition of ``result'' to require that, notwithstanding 
FERPA (20 U.S.C. 1232g), the result must also include the reason for 
the result. The Department explained that the regulations under FERPA 
do not specifically address whether the permissible disclosure to the 
victim of the ``final results'' of a disciplinary proceeding with 
respect to a crime of violence or a non-forcible sex offense under 34 
CFR 99.31(a)(13) and 99.39 includes the reason for the result. However, 
the Department has decided that, in light of the increased disclosures 
and rights provided to the accuser under VAWA, including potentially 
the right to appeal if the institution's procedures provide an appeal, 
it is vital that the accuser be informed of the reason for the result. 
A non-Federal negotiator, while agreeing that the reason for the result 
should be included in the definition of ``result,'' suggested that the 
definition should also include the rationale for the sanctions and the 
committee reached consensus on this additional language.

General Institutional Disciplinary Proceedings in Proposed Sec.  
668.46(k)(1)

    As stated previously, section 304(a)(5) of VAWA amended section 
485(f)(8) of the HEA to require that each institution of higher 
education that participates in any title IV, HEA program, other than a 
foreign institution, include a statement of policy in the institution's 
annual security report addressing the procedures for institutional 
disciplinary action in cases of alleged dating violence, domestic 
violence, sexual assault, or stalking. As a result of the discussions 
at the first session of negotiations, the Department introduced draft 
language for Sec.  668.46(k) that reflected all of the statutory 
changes outlined under the Statute heading. The draft language included 
new Sec.  668.46(k)(1)(i), which would require an institution to 
describe each type of disciplinary proceeding used by the institution; 
the steps, anticipated timelines, and decision-making process for each 
type of disciplinary proceeding; and how the institution determines 
which type of proceeding to use based on the circumstances of an 
allegation of dating violence, sexual assault, or stalking. This 
provision was included to provide greater transparency for students and 
the public around which types of disciplinary proceedings may be used, 
how the institution will determine which one is most appropriate to 
use, and what timelines and processes to expect for each one.
    At the last session of negotiated rulemaking, the committee 
reviewed revised draft language developed by the Department. A non-
Federal negotiator suggested that the Department remove the words ``in 
detail'' from the description of each type of disciplinary proceeding 
used by an institution in Sec.  668.46(k)(1)(i). The same non-Federal 
negotiator suggested that the Department remove the words ``reported 
incident of an alleged crime'' and substitute the words ``an allegation 
of dating violence, domestic violence, sexual assault, or stalking'' in 
Sec.  668.46(k)(1)(i), (k)(1)(ii), and (k)(1)(iii) because institutions 
do not adjudicate crimes. After discussion, the committee agreed to 
these suggestions.
    The Department also included, in the draft language provided during 
the second negotiating session, a new Sec.  668.46(k)(1)(iii), which 
tracks newly amended section 485(f)(8)(B)(ii) of the HEA and requires 
that the institution describe the possible sanctions or protective 
measures that the institution may impose following the results of any 
institutional disciplinary procedure regarding these incidents. The 
negotiating committee's discussion on this provision focused on whether 
the institution should provide the possible sanctions as opposed to a 
list of all sanctions that an institution may impose. Several non-
Federal negotiators thought that providing an exhaustive list of 
sanctions would hamper an institution's ability to strengthen sanctions 
or be innovative in imposing sanctions, while others felt that 
requiring an exhaustive list would require institutions to be more 
transparent about the types of sanctions they impose and permit 
students and employees to consider whether those sanctions are 
appropriate under the circumstances.
    At the last session, several non-Federal negotiators continued to 
argue against requiring an institution to list all sanctions because if 
only a small number of sanctions were imposed, disclosing such a list 
might trigger FERPA violations or a title IX complaint. Other non-
Federal negotiators argued that if an institution is not required to 
list all possible sanctions, the institution may abuse its discretion 
and impose an inappropriately light sanction. One non-Federal 
negotiator pointed out that, since 2005, the Handbook has provided 
guidance suggesting that institutions list all sanctions imposed, 
meaning that listing all sanctions was not an entirely new approach.
    The committee debated whether to require an institution to describe 
the range of sanctions and protective measures rather than provide an 
exhaustive list to allow the institution to retain flexibility in 
providing a sanction or protective measure that may be unique to a 
certain situation. In response to the concerns that institutions should 
retain some flexibility, the Department noted that institutions have 
the authority to change their policies during the year, including after 
they publish their annual security report. In this case, if an 
institution changes its policies to include or remove sanctions during 
the year, the Department would expect the institution's next annual 
security report to reflect the institution's revised list of sanctions. 
Some of the non-Federal negotiators favored requiring an exhaustive 
list of sanctions, to ensure transparency, but a range of protective 
measures in order to preserve the confidentiality of a victim and also 
to preserve flexibility to provide ad hoc protective measures for 
victims. The committee ultimately agreed that sanctions for 
perpetrators and protective measures available to victims should be 
addressed in separate paragraphs at Sec. Sec.  668.46(k)(1)(iii) and 
(k)(1)(iv) in this NPRM, which requires an institution to list all 
possible sanctions and a range of protective measures, respectively.

Advisor of Choice

    As stated previously, section 304(a)(5) of VAWA amended section 
485(f)(8)(iv) of the HEA to require that the accuser and the accused be 
entitled to the same opportunities to have others present during an 
institutional disciplinary proceeding, including the opportunity to be 
accompanied to any related meeting or proceeding by an advisor of their 
choice. At the first session of negotiated rulemaking, several non-
Federal negotiators stated that the term ``advisor'' should be defined 
and that the role of the advisor and the extent to which an advisor can 
participate in a disciplinary proceeding should be clearly delineated 
in the proposed regulations. Several non-Federal

[[Page 35446]]

negotiators argued that institutions should have discretion to limit 
who can accompany the parties involved in a disciplinary hearing and 
the extent to which such an advisor can participate. Other non-Federal 
negotiators stated that they believed that the statutory language 
entitles both the accuser and the accused to be accompanied to any 
meeting or proceeding by the advisor of their choice, and that proposed 
regulations should reflect that entitlement.
    At the second session of negotiations, the Department presented 
draft language for proposed Sec.  668.46(k)(2)(iii) that would require 
an institution to provide the accuser and the accused with the same 
opportunities to have others present during any institutional 
disciplinary proceeding, including the opportunity to be accompanied to 
any related meeting or proceeding by the advisor of their choice. Based 
on the discussion of this topic in the first session, we also defined 
the term ``advisor'' in Sec.  668.46(k)(3)(ii) of the draft to mean an 
individual who provides the accused or accuser support, guidance, or 
advice. The draft regulations provided that an institution may not 
limit the choice of advisor for either party but that an institution 
could limit the extent to which an advisor may participate in the 
proceedings, such as restricting cross-examination of witnesses or 
prohibiting advisors from addressing the decision-maker, as long as the 
limits apply equally to both parties. Several non-Federal negotiators 
supported this approach and agreed with the Department's view that the 
statutory language was intended to allow the accuser and the accused to 
have the advisor of their choice. Other non-Federal negotiators felt 
that allowing the accused or the accuser to bring an attorney to a 
disciplinary proceeding created an advantage for that party and would 
intimidate the party that chose not to bring an attorney or who could 
not afford to bring an attorney. Additionally, these non-Federal 
negotiators expressed concern that the presence of attorneys would 
change the tenor of institutional disciplinary proceedings. There was 
general agreement that an institution could place limits on the 
participation of an advisor; however, one non-Federal negotiator 
objected to the Department's choice of the words ``restricting cross-
examination of witnesses'' because of the concern that such language 
gave the impression, falsely, that disciplinary proceedings are 
criminal legal proceedings.
    The Department's final draft regulation, presented at the third and 
last session, simplified the proposed definition of ``advisor'' in 
Sec.  668.46(k)(3)(ii) by defining the term to mean an individual who 
provides the accuser or accused support, guidance, or advice. The 
Department's draft language moved substantive provisions from the prior 
definition of ``advisor'' into a new Sec.  668.46(k)(2)(iv) to provide 
that an institution may not limit the choice of advisor for either the 
accuser or the accused; however, the institution may establish 
restrictions regarding the extent to which the advisor may participate 
in the proceedings, as long as the restrictions apply equally to both 
parties. This change was intended to separate the definition of the 
term ``advisor'' from the role the advisor plays in a disciplinary 
hearing. At the outset of the discussion of this issue, the Department 
made clear that its interpretation of the statutory language was that 
the accused and the accuser are entitled to an advisor of their choice, 
including an attorney. One non-Federal negotiator suggested that the 
Department add language to new Sec.  668.46(k)(2)(iv) to bar an 
institution from limiting the choice or presence of an advisor for 
either the accuser or the accused to make it clear that both parties in 
the proceeding are entitled to be accompanied by an advisor. Other non-
Federal negotiators felt this was redundant given that Sec.  
668.46(k)(2)(iii) states that the accuser and the accused have the same 
opportunities to have others present during any institutional 
disciplinary proceeding, including the opportunity to be accompanied to 
any related meeting or proceeding by the advisor of their choice. The 
non-Federal negotiators expressed strong concerns on both sides of this 
issue. Several non-Federal negotiators characterized the restriction on 
an institution's ability to limit the choice of an advisor as a 
significant change that would create a serious burden on institutions 
while others characterized the requirement as a long-overdue protection 
for victims of sexual violence. Ultimately, the negotiators agreed to 
the language in proposed Sec.  668.46(k)(2)(iii), which would provide 
that the institution cannot limit the choice or presence of advisor for 
either the accuser or the accused in any meeting or institutional 
disciplinary proceeding. However, proposed Sec.  668.46(k)(2)(iv) would 
allow institutions to establish restrictions regarding the extent to 
which the advisor may participate in the proceedings, as long as the 
restrictions apply equally to both parties. We note that the proposed 
definition of ``advisor'' to mean someone who provides the accuser or 
accused support, guidance, or advice is not intended to include 
individuals acting as interpreters or translators. For example, a 
victim with limited English proficiency involved in a campus 
disciplinary proceeding who requires an interpreter to understand the 
proceedings would still be entitled to bring an advisor of their 
choice.

Training for Disciplinary Proceeding Officials

    The non-Federal negotiators debated the merits of including 
regulatory standards for the training that officials who conduct 
disciplinary proceedings must receive during the first session of 
negotiations. There was strong agreement that such training is 
necessary but that the training content should be flexible to reflect 
the diversity of institutional environments, that it should incorporate 
existing evidence-based research or practice, and that it should 
emphasize the need for both impartiality and sensitivity in dealing 
with the accused and the accuser. Several non-Federal negotiators 
questioned whether standards for training should be included in the 
Handbook or other best practices document as opposed to the proposed 
regulations. The subcommittee formed to further explore the issue of 
prevention and awareness programs agreed to add the topic of training 
on disciplinary proceedings to its agenda and report back to the 
negotiated rulemaking committee on their findings in the second 
session.
    At the second negotiated rulemaking session, the subcommittee that 
was formed to address prevention and awareness programs as well as 
training on disciplinary hearings shared with the whole committee a 
list of training standards they had developed for officials who conduct 
disciplinary proceedings. Although the list was comprehensive and well-
received, it was the general feeling of the negotiated rulemaking 
committee that such a list should be included in a best practices 
document or the Handbook rather than the proposed regulations because 
the level of detail went beyond the scope of the Department's 
rulemaking authority.

Notification of Disciplinary Proceeding Results

    As stated previously, section 304(a)(5) of VAWA amended section 
485(f)(8)(iv) of the HEA to require that both the accuser and the 
accused be simultaneously informed, in writing, of the outcome of any 
disciplinary proceeding; the institution's procedures for both parties 
to appeal the results of

[[Page 35447]]

the proceeding; of any change to the results that occurs prior to the 
results becoming final, and when such results become final. There was 
general agreement during the first session of negotiations that there 
should be flexibility in how institutions implement this requirement. 
The Department noted that it generally interprets the term ``in 
writing'' to mean either a hard copy document or an electronic 
document. Some non-Federal negotiators outlined a variety of approaches 
that they thought institutions could take when notifying the accuser 
and the accused of the outcome, including providing hard copy documents 
in back-to-back in-person meetings or at separate meetings scheduled at 
the same time but in a different location so that the parties are 
separated, sending letters by simultaneous email to the accuser and the 
accused, or mailing letters to both the accuser and the accused at the 
same time. The Department indicated its support for a flexible 
approach. During the first session of negotiations, the non-Federal 
negotiators also debated whether the statute required schools to have 
an appeals process or simply required the institution to disclose the 
existence of an appeals process, if the institution allowed appeals.
    The draft regulatory language that the Department presented at the 
second session included a provision reflecting statutory language that 
an institution must require simultaneous notification, in writing, to 
both the accuser and the accused, of the result of any institutional 
disciplinary proceeding that arises from an allegation of domestic 
violence, dating violence, sexual assault, or stalking and the 
institution's procedures for the accused and the victim to appeal the 
result of the institutional disciplinary proceeding, if such procedures 
are available. The Department considered including a requirement that 
institutions provide for an appeal process but decided that such a 
requirement is not supported by the statute. One non-Federal negotiator 
expressed concern that the proposed regulations may be interpreted as 
requiring that a police incident report may have to be included in the 
final result of a disciplinary proceeding. The Department assured the 
negotiator that the regulations were not intended to require an 
incident report to be part of the final result. Another non-Federal 
negotiator was concerned that the language did not allow a victim to 
opt out of receiving the final results while several other negotiators 
felt that notifying victims of the outcome should always be required.
    In its draft regulations presented to the committee during the 
third session, the Department proposed a new provision in Sec.  
668.46(k)(2)(v)(A), which would exempt an institution from the 
requirement that it simultaneously notify, in writing, both the accuser 
and the accused of the result of a disciplinary proceeding if the 
accuser or the accused requested not to be informed of the result. This 
draft language was strongly criticized by several members of the 
committee because they believed that requiring notification was an 
important part of the process for victims, who sometimes have been left 
in the dark as to the result of a disciplinary proceeding. These 
committee members recognized that some victims might not want to 
actually view the results, but they suggested that there are ways in 
which an institution could send the victim the results, such as in a 
sealed envelope, which would allow the victim to make the decision of 
whether or not to view them. For these reasons, the Department agreed 
to remove the provision.

Anti-Retaliation Clause

    Statute: Section 488(e)(3) of the HEOA added section 485(f)(17) to 
the HEA to specify that nothing in the Clery Act could be construed to 
permit an institution or an officer, employee, or agent of an 
institution, participating in any title IV program to retaliate, 
intimidate, threaten, coerce, or otherwise discriminate against any 
individual with respect to the implementation of any provision under 
the Clery Act.
    Current Regulations: None.
    Proposed Regulations: We propose to add Sec.  668.46(m) to prohibit 
retaliation by specifying that ``an institution or an officer, 
employee, or agent of an institution, may not retaliate, intimidate, 
threaten, coerce, or otherwise discriminate against any individual for 
exercising their rights or responsibilities under any provision in this 
section.''
    Reasons: The Department had not previously reflected the statutory 
provision regarding anti-retaliation in the regulations. Over the last 
several years, however, the Department has received requests to 
incorporate this provision into the regulations to make the regulations 
more complete. As a result, we are proposing to add this provision to 
the regulations, to reflect these statutory requirements.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

Introduction
    Institutions of higher education that participate in the Federal 
student financial aid programs authorized by title IV of the HEA are 
required to comply with the Clery Act. According to the most current 
IPEDS data, a total of 7,508 institutions were participating in title 
IV programs in 2012. The Department reviews institutions for compliance 
with the Clery Act and has imposed fines for significant non-
compliance. The Department expects that these proposed changes will be 
beneficial for students, prospective students, and employees, 
prospective employees, the public and the institutions themselves.
    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and, therefore, subject to 
the requirements of the Executive order and subject to review by the 
Office of Management and Budget (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, 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 regulatory action is a significant regulatory action 
subject to review by OMB under section 3(f) of Executive Order 12866.
    We have also reviewed these regulations 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);

[[Page 35448]]

    (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 these proposed regulations only on a reasoned 
determination that their benefits would justify their 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 these proposed regulations are 
consistent with the principles in Executive Order 13563.
    In accordance with both Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs associated 
with this regulatory action are those resulting from statutory 
requirements and those we have determined as necessary for 
administering the Department's programs and activities.
    This Regulatory Impact Analysis is divided into five sections. The 
``Need for Regulatory Action'' section discusses why these implementing 
regulations are necessary to define terms and improve upon the methods 
by which institutions count crimes within their Clery geography.
    The ``Discussion of Costs and Benefits'' section considers the cost 
and benefit implications of these regulations for students and 
institutions. There would be two primary benefits of the proposed 
regulations. First, we expect students and prospective students and 
employees and prospective employees to be better informed and better 
able to make choices in regards to higher education attendance and 
employment because the proposed regulations would improve the method by 
which crimes on campuses are counted and reported. Second, we would 
provide further clarity on students' and employees' rights and 
procedures by requiring institutions to design and disclose policies 
and institutional programs to prevent sexual assault.
    Under ``Net Budget Impacts,'' the Department presents its estimate 
that the final regulations would not have a significant net budget 
impact on the Federal government.
    In ``Alternatives Considered,'' we describe other approaches the 
Department considered for key provisions of the proposed regulations, 
including definitions of ``outcomes,'' ``initial and final 
determinations,'' ``resolution,'' ``dating violence,'' ``employees,'' 
``consent,'' and ``sodomy and sexual assault with an object.''
    The ``Initial Regulatory Flexibility Analysis'' considers the 
effect of the proposed regulations on small entities.
    Finally, the ``Clarity of the Regulations'' provides guidance to 
commenters when reviewing the proposed regulations for ease of 
understanding.

Need for Regulatory Action

    Executive Order 12866 emphasizes that ``Federal agencies should 
promulgate only such regulations as are required by law, are necessary 
to interpret the law, or are made necessary by compelling public need, 
such as material failures of private markets to protect or improve the 
health and safety of the public, the environment, or the well-being of 
the American people.'' In this case, there is indeed a compelling 
public need for regulation. The Department's goal in regulating is to 
incorporate the provisions in VAWA into the Department's Clery Act 
regulations.
    On March 7, 2013, President Obama signed VAWA into law. Among other 
provisions, this law amended the Clery Act. The statutory changes made 
by VAWA require institutions to compile statistics for certain crimes 
that are reported to campus security authorities or local police 
agencies including incidents of dating violence, domestic violence, 
sexual assault, and stalking. Additionally, institutions will be 
required to include certain policies, procedures, and programs 
pertaining to these crimes in their annual security reports.
    During the negotiated rulemaking process, non-Federal negotiators 
discussed issues relating to the new provisions in the Clery Act 
addressing dating violence, domestic violence, sexual assault and 
stalking including:
     Methods of compiling statistics of incidents that occur 
within Clery geography and are reported to campus security authorities.
     Definitions of terms.
     Programs to prevent dating violence, domestic violence, 
sexual assault, and stalking.
     Procedures that will be followed once an incident of these 
crimes has been reported, including a statement of the standard of 
evidence that will be used during any institutional disciplinary 
proceeding arising from the report.
     Educational programs to promote the awareness of dating 
violence, domestic violence, sexual assault, and stalking, which shall 
include primary prevention and awareness programs for incoming students 
and new employees, as well as ongoing prevention and awareness programs 
for students and faculty.
     The right of the accuser and the accused to have an 
advisor of their choice present during an institutional disciplinary 
proceeding.
     Simultaneous notification to both the accuser and the 
accused of the outcome of the institutional disciplinary proceeding.
     Informing victims of options for victim assistance in 
changing academic, living, transportation, and working situations, if 
requested by the victim and such accommodations are reasonably 
available, regardless of whether the victim chooses to report the crime 
to campus police or local law enforcement.
    As a result of these discussions, the proposed regulations would 
require institutions to compile statistics for certain crimes (dating 
violence, domestic violence, sexual assault, and stalking) that are 
reported to campus security authorities or local police agencies. 
Additionally, institutions would be required to include certain 
policies, procedures, and programs pertaining to these crimes in their 
annual security reports (ASRs).
    The purpose of the disclosures required by the Clery Act is to give 
prospective and current students information to help them make 
decisions about their potential or continued enrollment in a 
postsecondary institution. Prospective

[[Page 35449]]

and current students and their families, staff, and the public use the 
information to assess an institution's security policies and the level 
and nature of crime on its campus. Institutions are required to 
disclose this data to students, employees, and prospective students and 
employees and to provide the crime statistics to the Department, which 
then makes it available to the public.

Discussion of Costs and Benefits

    A benefit of these proposed regulations is that they would 
strengthen the rights of students and employees in connection with 
reported incidents of dating violence, domestic violence, sexual 
assault, and stalking. Institutions would be required to collect 
statistics for crimes reported to campus security authorities and local 
police agencies that involve incidents of dating violence, domestic 
violence, sexual assault, and stalking. This would improve crime 
reporting. In addition, students, prospective students, families, and 
employees and potential employees of the institutions, would be better 
informed about each campus's safety and procedures.
    These proposed regulations would require institutions to include in 
their annual security report information about the institution's 
policies and programs to prevent sexual assault, which would cover 
programs that address dating violence, domestic violence, sexual 
assault, and stalking. This information would help students and 
employees understand these rights and procedures. Prevention and 
awareness programs for all new students and employees, as well as 
ongoing prevention and awareness campaigns for enrolled students and 
faculty would be beneficial in providing additional information to 
students and employees.
    The revised provisions related to institutional disciplinary 
proceedings in cases of alleged dating violence, domestic violence, 
sexual assault, and stalking would protect the accuser and the accused 
by ensuring an equal opportunity to have an advisor at meetings and 
proceedings, an equal right to appeal if appeals are available, and the 
right to learn of the outcome of the proceedings, including the 
rationale. Accusers would gain the benefit of a required written 
explanation of their rights and options, including information about 
the possible sanctions an institution may impose on perpetrators and 
the range of protective measures an institution may make available to 
victims.
    Institutions would largely bear the costs of these proposed 
regulations, which would fall into two categories: Paperwork costs of 
complying with the regulations, and other compliance costs that 
institutions may incur as they attempt to improve security on campus. 
Under the proposed regulations, institutions would have to include in 
the annual security report, descriptions of the primary prevention and 
awareness programs offered for all incoming students and new employees 
and descriptions of the ongoing prevention and awareness programs 
provided for enrolled students and employees. To comply, some 
institutions may need to create or update material about the 
availability of prevention programs while others may already provide 
sufficient information. Awareness and prevention programs can be 
offered in a variety of formats, including electronically, so the costs 
of any changes institutions would make in response to the proposed 
regulations could vary significantly and the Department has not 
attempted to quantify additional costs associated with awareness and 
prevention programs.
    Another area in which institutions could incur costs related to the 
proposed regulations involves institutional disciplinary proceedings in 
cases of alleged dating violence, domestic violence, sexual assault, or 
stalking. Institutions will be required to have a policy statement 
describing the proceedings that would have to describe the standard of 
evidence that applies; the possible sanctions; that the accused and the 
accuser will have an equal right to have others present, including 
advisors of their choice; and that written notice of the outcomes of 
the proceedings would be given simultaneously to both the accused and 
the accuser. The proceedings would be conducted by officials who 
receive annual training on issues related to dating violence, domestic 
violence, sexual assault, and stalking as well as training on how to 
conduct investigations and hearings in a way to protect the safety of 
victims. Depending upon their existing procedures, some institutions 
may have to make changes to their disciplinary proceedings. The 
Department has not attempted to quantify those potential additional 
costs, which could vary significantly amongst institutions.
    In addition to the costs described above, institutions would incur 
costs associated with the reporting and disclosure requirements of the 
proposed regulations. This additional workload is discussed in more 
detail under the Paperwork Reduction Act of 1995 section. We expect 
this additional workload would result in costs associated with either 
the hiring of additional employees or opportunity costs related to the 
reassignment of existing staff from other activities. Under the 
proposed regulations, these costs would involve updating the annual 
security reports; changing crime statistics reporting to capture 
additional crimes, categories of crimes, differentiation of hate 
crimes, and expansion of categories of bias reported; and the 
development of statements of policy about prevention programs and 
institutional disciplinary proceedings. In total, the proposed 
regulations are estimated to increase paperwork burden on institutions 
participating in the title IV, HEA programs by 77,725 hours annually. 
The monetized cost of this additional paperwork burden on institutions, 
using wage data developed using BLS data available at: www.bls.gov/ncs/ect/sp/ecsuphst.pdf, is $2,840,849. This cost was based on an hourly 
rate of $36.55 for institutions.
    Given the limited data available, the Department is particularly 
interested in comments and supporting information related to the 
estimated burden stemming from the proposed regulations. Estimates 
included in this notice will be reevaluated based on any information 
received during the public comment period.

Net Budget Impacts

    The proposed regulations are not estimated to have a significant 
net budget impact in the title IV, HEA student aid programs over loan 
cohorts from 2014 to 2024. Consistent with the requirements of the 
Credit Reform Act of 1990, budget cost estimates for the student loan 
programs reflect the estimated net present value of all future non-
administrative Federal costs associated with a cohort of loans. (A 
cohort reflects all loans originated in a given fiscal year.)
    In general, these estimates were developed using the Office of 
Management and Budget's (OMB) Credit Subsidy Calculator. The OMB 
calculator takes projected future cash flows from the Department's 
student loan cost estimation model and produces discounted subsidy 
rates reflecting the net present value of all future Federal costs 
associated with awards made in a given fiscal year. Values are 
calculated using a ``basket of zeros'' methodology under which each 
cash flow is discounted using the interest rate of a zero-coupon 
Treasury bond with the same maturity as that cash flow. To ensure 
comparability across programs, this methodology is incorporated into 
the calculator and used government-

[[Page 35450]]

wide to develop estimates of the Federal cost of credit programs. 
Accordingly, the Department believes it is the appropriate methodology 
to use in developing estimates for these regulations.
    We are not estimating that the proposed regulations will have a net 
budget impact on the title IV aid programs. We assume that institutions 
will generally continue to comply with Clery Act reporting requirements 
and such compliance has no net budget impact on the title IV aid 
programs. In the past, the Department has imposed fines on institutions 
that violate the Clery Ac but those fines do not have a net budget 
impact. Therefore, we estimate that the proposed regulations will have 
no net budget impact on the title IV, HEA programs.

Alternatives Considered

    The Department determined that regulatory action was needed in 
order to implement the changes made to the Clery Act by VAWA, reflect 
the statutory language in the regulations and make some technical and 
clarifying changes to the Department's existing Clery Act regulations.
    During the development of the proposed regulations, a number of 
different approaches to implement the amendments made to the Clery Act 
were discussed by the Department during the negotiated rulemaking 
process. Some of these approaches included the addition of clarifying 
definitions for ``outcomes,'' ``initial and final determinations,'' 
``resolution,'' ``dating violence,'' ``employees,'' ``consent,'' and 
``sodomy and sexual assault with an object.'' These alternative 
approaches are discussed below.

Definitions of Outcomes, Initial and Final Determinations, and 
Resolution

    The Department considered harmonizing the terms, ``outcomes'', 
``initial and final determinations'', and ``resolution'', used 
throughout the Clery Act regulations for internal consistency and to 
provide clarity for institutions. These terms are often being used 
interchangeably, along with the term ``results.'' The Department 
considered an alternative definition of ``outcomes'' as one or more 
parts of the results. The Department also considered an alternative 
definition of ``initial and final determinations,'' which would have 
defined the term ``initial determinations'' to include those decisions 
made before the appeals process, if the institution had such process. A 
``final determination'' would be the decision made after the appeals 
process had been completed. Adding a definition of the term 
``resolution'' was also considered by the Department. The Department 
ultimately decided to use the term ``results'' in the proposed 
regulations to refer to the initial, interim, and final decisions.

Alternative Definition of Dating Violence

    The Department considered several alternatives to the definition of 
``dating violence.'' The inclusion of emotional and psychological 
abuse, along with sexual and physical abuse, was considered. The 
Department decided to include only sexual or physical abuse or the 
threat of such abuse in the definition. The Department decided that 
some instances of emotional and psychological abuse do not rise to the 
level of ``violence'' which is part of the statutory definition of the 
term ``dating violence'' under VAWA. The Department also has concerns 
over implementation by campus security authorities of a definition of 
the term if it included these forms of abuse.
    The Department also considered how to define ``dating violence'' as 
a crime for Clery Act purposes when it may not be a crime in some 
jurisdictions. To address this concern, the Department added a 
statement that any incident meeting the definition of ``dating 
violence'' was considered a crime for the purposes of Clery Act 
reporting.

Definitions of Employees

    The Department considered adding a definition of ``employee'' to 
the proposed regulations. Some negotiators requested that the 
Department define this term to provide clarity to institutions. The 
Department decided not to define this term, however, since the existing 
regulations already effectively require institutions to determine who 
current employees are for the purposes of distributing their annual 
security reports.

Definition of Consent

    The Department considered adding a definition of ``consent'' for 
the purposes of the Clery Act to the proposed regulations. Some 
negotiators indicated that a definition of ``consent'' would provide 
clarity for institutions, students, and employees for when a reported 
sex offense would need to be included in the institution's Clery Act 
statistics. However, a definition of ``consent'' might also create 
ambiguity in jurisdictions that either do not define ``consent'' or 
have a definition that differed from the one that would be in the 
regulations. The Department decided against including the definition of 
``consent'' in the proposed regulations as we were not convinced that 
it would be helpful to institutions in complying with the Clery Act. 
For purposes of Clery Act reporting, all sex offenses that are reported 
to a campus security authority must be recorded in an institution's 
Clery Act statistics and, if reported to the campus police, must be 
included in the crime log, regardless of the issue of consent.

Definitions of Sodomy and Sexual Assault With an Object

    The Department had initially separated the terms ``sodomy'' and 
``sexual assault with an object'' into two distinct definitions for 
which separate statistics would be reported by institutions. However, 
the Department decided to adopt the FBI's new definition of ``rape.'' 
This new definition of rape covers acts including rape, sodomy, and 
sexual assault with an object. Under this new definition of rape, all 
instances of sodomy and sexual assault with an object would be included 
in the definition of ``rape.'' Therefore, separate statistics would not 
be collected for these crime categories, and the Department therefore 
decided not to define these terms separately.

Initial Regulatory Flexibility Act Analysis

    This Initial Regulatory Flexibility Analysis presents an estimate 
of the effect on small entities of the proposed regulations. The U.S. 
Small Business Administration Size Standards define ``for-profit 
institutions'' as ``small businesses'' if they are independently owned 
and operated and not dominant in their field of operation with total 
annual revenue below $7,000,000. They define ``non-profit 
institutions'' as ``small organizations'' if they are independently 
owned and operated and not dominant in their field of operation, or as 
``small entities'' if they are institutions controlled by governmental 
entities with populations below 50,000. The Secretary invites comments 
from small entities as to whether they believe the proposed changes 
would have a significant economic impact on them and, if so, requests 
evidence to support that belief.

Description of the Reasons That Action by the Agency Is Being 
Considered

    This proposed regulatory action would implement the changes made to 
the Clery Act by VAWA, reflect the statutory language in the 
regulations and make some technical and clarifying changes to the 
Department's existing Clery Act regulations. The proposed regulations 
would reflect the statutory requirement that institutions compile

[[Page 35451]]

and report statistics for incidents of dating violence, domestic 
violence, sexual assault, and stalking that are reported to campus 
security authorities or local police agencies. Additionally, 
institutions would be required to include certain policies, procedures, 
and programs pertaining to these crimes in their annual security 
reports.
    The purpose of these data collections is to give prospective and 
current students information to help them make decisions about their 
potential or continued enrollment in a postsecondary institution. 
Prospective and current students and their families, staff, and the 
public use the information to assess an institution's security policies 
and the level and nature of crime on its campus. In addition to the 
disclosure to students and employees institutions must provide campus 
crime data to the Department annually.

Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Regulations

    On March 7, 2013, President Obama signed the Violence Against Women 
Reauthorization Act of 2013 (VAWA) (Pub. L. 113-4). Among other 
provisions, this law amended section 485(f) HEA, otherwise known as the 
Clery Act. These statutory changes require institutions to compile 
statistics for incidents of dating violence, domestic violence, sexual 
assault, and stalking that are reported to campus security authorities 
or local police agencies. Additionally, the proposed regulations would 
require institutions to include certain policies, procedures, and 
programs pertaining to these crimes in their annual security reports.

Description of and, Where Feasible, an Estimate of the Number of Small 
Entities to Which the Proposed Regulations Would Apply

    The proposed regulations would apply to institutions of higher 
education that participate in the title IV, HEA student aid programs, 
other than foreign institutions of higher education. From the most 
recent data compiled in the 2012 Campus Safety and Security Survey, we 
estimate that approximately 7,230 institutions would be subject to the 
proposed regulations, including 2,011 public, 1,845 private not-for-
profit, and 3,365 private for-profit institutions. Of these 
institutions, we consider all of the private not-for-profit 
institutions and approximately 40 percent of private for-profit 
institutions as small entities. We do not believe any of the public 
institutions meet the definition of ``small entity.''

Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Regulations, Including an 
Estimate of the Classes of Small Entities That Would Be Subject to the 
Requirement and the Type of Professional Skills Necessary for 
Preparation of the Report or Record

    Table 1 shows the estimated burden of each information collection 
requirement to the hours and costs estimated and discussed in more 
detail in the Paperwork Reduction Act of 1995 section. Additional 
workload would normally be expected to result in estimated costs 
associated with either the hiring of additional employees or 
opportunity costs related to the reassignment of existing staff from 
other activities. In total, by taking 100 percent (for the private non-
profit institutions) and 40 percent (for the private for-profit 
institutions) of the estimated burden hours for paragraphs 668.46(b), 
(c), (j), and (k), detailed in the Paperwork Reduction Act section of 
this preamble, these changes are estimated to increase the burden on 
small entities participating in the title IV, HEA programs by 34,401 
hours annually. The monetized cost of this additional paperwork burden 
on institutions, using a $36.55 wage rate developed using BLS data 
available at www.bls.gov/ncs/ect/sp/ecsuphst.pdf, is $1,257,357.

                              Table 1--Estimated Paperwork Burden on Small Entities
----------------------------------------------------------------------------------------------------------------
                                                                    OMB control
                    Provision                       Reg section         No.            Hours           Costs
----------------------------------------------------------------------------------------------------------------
Annual Security Report..........................       668.46(b)       1845-0022           8,000         292,407
Crime Statistics................................       668.46(c)       1845-0022           4,800         175,447
Statement of Policy--awareness and prevention          668.46(j)       1845-0022          12,800         467,840
 programs.......................................
Statement of Policy--institutional disciplinary        668.46(k)       1845-0022           8,801         321,662
 proceedings....................................
                                                 ---------------------------------------------------------------
    Total.......................................  ..............  ..............          34,401       1,257,357
----------------------------------------------------------------------------------------------------------------

Identification, to the Extent Practicable, of All Relevant Federal 
Regulations That May Duplicate, Overlap, or Conflict With the Proposed 
Regulations

    The proposed regulations are unlikely to conflict with or duplicate 
existing Federal regulations.

Alternatives Considered

    As discussed in the ``Regulatory Alternatives Considered'' section 
of the Regulatory Impact Analysis, several different definitions for 
key terms were considered. The Department did not consider any 
alternatives specifically targeted at small entities.

Clarity of the 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 these 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 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec.  '' and a numbered heading; for example, 
Sec.  668.46 Institutional security policies and crime statistics.)
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?

[[Page 35452]]

    To send any comments that concern how the Department could make 
these proposed regulations easier to understand, see the instructions 
in the ADDRESSES section.

Paperwork Reduction Act of 1995

    As part of its continuing effort to reduce paperwork and respondent 
burden, 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 helps ensure that: The public 
understands the Department's collection instructions, respondents can 
provide the requested data in the desired format, reporting burden 
(time and financial resources) is minimized, collection instruments are 
clearly understood, and the Department can properly assess the impact 
of collection requirements on respondents. Table 1 summarizes the 
estimated burden on small entities, primarily institutions and 
applicants, arising from the paperwork associated with the proposed 
regulations.
    Section 668.46 contains information collection requirements. Under 
the PRA, the Department has submitted a copy of these sections, related 
forms, and Information Collections Requests (ICRs) to OMB for its 
review. OMB is required to make a decision concerning the collection of 
information contained in these proposed regulations between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, to ensure the OMB gives your comments full consideration, it 
is important that OMB receives your comments by July 21, 2014. The same 
docket ID number is used for commenting on both the NPRM and the 
information collection request.
    A Federal agency may not conduct or sponsor a collection of 
information unless OMB approves the collection under the PRA and the 
corresponding information collection instrument displays a currently 
valid OMB control number. Notwithstanding any other provision of law, 
no person is required to comply with, or is subject to penalty for 
failure to comply with, a collection of information if the collection 
instrument does not display a currently valid OMB control number.
    In the final regulations, we will display the control numbers 
assigned by OMB to any information collection requirements proposed in 
this NPRM and adopted in the final regulations.

Discussion

    Based on the most recent data compiled in the 2012 Campus Safety 
and Security Survey, there are 7,230 total institutions. This figure 
includes 2,011 Public, 1,845 Private Not-for-Profit, and 3,365 Private 
For-Profit institutions. This data was collected from August to October 
2013 and represents the most current information available. The PRA 
section will use these figures in assessing burden.

Section 668.46 Institutional Security Policies and Crimes Statistics

    Requirements: Under proposed Sec.  668.46(b) Annual security 
report, we have revised and expanded existing language and added new 
requirements for items to be reported annually. We propose to revise 
Sec.  668.46(b)(4)(i) to require institutions to address in their 
statements of current policies concerning campus law enforcement the 
jurisdiction of security personnel for the investigation of alleged 
criminal offenses, as well as any agreements, such as written memoranda 
of understanding between the institution and those police agencies. 
This proposed change incorporates modifications made to the HEA by the 
HEOA and responds to requests the Department has received regarding the 
memorandum of understanding between campus security personnel and State 
and local law enforcement.
    We propose to expand Sec.  668.46(b)(4)(iii) to include, in the 
statement of policy, the requirement that the institution encourage 
accurate and prompt reporting of all crimes to the campus police and 
the appropriate police agency when a victim of a crime elects to or is 
unable to make such a report. This proposed change incorporates 
modifications made to the HEA by VAWA, ensures complete reporting of 
crime statistics in the institution's annual security report and 
provides for a safer campus community whether a crime is reported by 
the victim or a third-party.
    We propose to revise and restructure Sec.  668.46(b)(11). 
Specifically, we propose to require institutions to include in their 
annual security report a statement of policy regarding the 
institution's programs to prevent dating violence, domestic violence, 
sexual assault, and stalking as well as the procedures that the 
institutions would follow when one of these crimes is reported. This 
proposed change incorporates modifications made to the HEA by VAWA.
    In Sec.  668.46(b)(11)(ii) we propose that institutions must 
provide written information to the victim of dating violence, domestic 
violence, sexual assault, and stalking. This includes information 
regarding: The preservation of evidence to assist in proving the 
alleged criminal offense or obtaining a protective order; how and to 
whom an alleged offense is to be reported; options for the involvement 
of law enforcement and campus authorities; and where applicable the 
victim's rights or institution's responsibilities for orders of 
protection. This proposed change incorporates modifications made to the 
HEA by VAWA as well as changes discussed during the negotiations.
    In Sec.  668.46(b)(11)(iii) we propose to add a section to specify 
that institutions must address in their annual security report how they 
will complete publicly available recordkeeping for the purposes of 
Clery Act reporting while not including identifying information about 
the victim and while maintaining the confidentiality of any 
accommodations or protective measures given to the victim, to the 
extent that such exclusions would not impair the ability of the 
institution to provide such accommodations or protective measures. This 
proposed change incorporates modifications made to the HEA by VAWA as 
well as discussions during negotiations.
    We propose to revise Sec.  668.46(b)(11)(iv) to require 
institutions to specify in their annual security reports that they will 
provide a written notification of an expanded list of services to 
students and employees if the services are available. These services 
include existing counseling, health, mental health, victim advocacy, 
legal assistance, visa and immigration services for the victim, and 
other services that may be available at the institution and in the 
community. This proposed change incorporates modifications made to the 
HEA by VAWA as well as discussions during negotiations.
    We propose to revise current Sec.  668.46(b)(11)(v) to require 
institutions to specify in their annual security report that written 
notification would be provided to victims of dating violence, domestic 
violence, sexual assault, and stalking regarding their options for, and 
the availability of, changes to academic, living, transportation, and 
working situations. These options would have to be afforded any victim, 
regardless of whether the victim reports the crime to campus police or 
law enforcement. This proposed change incorporates modifications made 
to the HEA by VAWA, as well as discussions during negotiations.

[[Page 35453]]

    We propose to add a new Sec.  668.46(b)(11)(vii) to require 
institutions to specify in their annual security reports that when a 
student or employee of the institution reports to the institution that 
a person is a victim of dating violence, domestic violence, sexual 
assault, or stalking that victim will be provided a written explanation 
of their rights and options under this subsection, whether the offense 
occurred on campus or off campus. This proposed change incorporates 
modifications made to the HEA by VAWA.
    Burden Calculation: On average, we estimate that the proposed 
changes in Sec.  668.46(b)(11) would take each institution 2.5 hours of 
additional burden. As a result, reporting burden at public institutions 
would increase by 5,028 hours (2,011 public institutions time 2.5 hours 
per institution). Reporting burden at private non-profit institutions 
would increase by 4,635 hours (1,854 private non-profit institutions 
times 2.5 hours per institution). Reporting burden at private for-
profit institutions would increase by 8,413 hours (3,365 private for-
profit institutions times 2.5 hours per institution).
    Collectively, burden would increase by 18,076 hours under OMB 
Control Number 1845-0022.
    Requirements: Under proposed Sec.  668.46(c), Crime statistics, we 
have revised existing language and added new reporting requirements for 
items to be reported in the annual survey.
    The proposed revisions to Sec.  668.46(c)(1) would add the VAWA 
crimes of dating violence, domestic violence, and stalking to the 
crimes for which an institution must collect and disclose statistics as 
part of their annual crime statistics reporting process. The Department 
is modifying its approach for the reporting and disclosing of sex 
offenses to reflect updates to the FBI's (Uniform Crime Reporting) UCR 
program and to improve the clarity of Sec.  668.46(c)(1). The 
Department is proposing a restructuring of the paragraph to consolidate 
all the reportable Clery Act crimes and to appropriately reflect the 
categories of crimes.
    While institutions would continue to be required to report 
statistics for the three most recent calendar years, the proposed 
reporting requirements have been expanded because of the addition of 
new crimes added by VAWA.
    We have revised Sec.  668.46(c)(4)(iii) and Sec.  668.46(c)(vii) to 
include gender identity and national origin as two new categories of 
bias that serve as the basis for a determination of a hate crime. The 
institution would have to identify the category of bias that motivated 
the crime.
    Under proposed Sec.  668.46(c)(6), we added stalking as a 
reportable crime. The Department would define ``stalking'' in the 
proposed regulations.
    These proposed changes implement the changes VAWA made to the HEA 
and improve the overall clarity of this paragraph. We believe that 
additional burden would be added because there are additional crimes, 
categories of crimes, differentiation of hate crimes, and expansions of 
the categories of bias that must be reported.
    Burden Calculation: On average, we estimate that the proposed 
changes to the reporting of crime statistics would take each 
institution 1.50 hours of additional burden. As a result, reporting 
burden at public institutions would increase by 3,017 hours (2,011 
reporting public institutions times 1.50 hours per institution). 
Reporting burden at private non-profit institutions would increase by 
2,781 hours (1,854 private non-profit institutions times 1.50 hours). 
Reporting burden at private for-profit institutions would increase by 
5,048 hours (3,365 private for-profit institutions times 1.50 hours per 
institution).
    Collectively, burden would increase by 10,846 hours under OMB 
Control Number 1845-0022.
    Requirements: Under proposed Sec.  668.46(j), Programs to prevent 
dating violence, domestic violence, sexual assault, and stalking, we 
are proposing to include in the regulations particular requirements for 
the required description of the institution's programs and ongoing 
campaigns about prevention and awareness in the institution's annual 
security report.
    Proposed Sec.  668.46(j)(1)(i) would require that the institution's 
statement would have to contain certain elements in the description of 
the primary prevention and awareness programs for incoming students and 
new employees including the institution's prohibition of dating 
violence, domestic violence, sexual assault, or stalking, definitions 
of those crimes and a definition of ``consent'' according to the 
applicable jurisdiction, a description of safe and positive options for 
bystander intervention, information on risk reduction, and other 
elements of paragraphs 668.46(b)(11)(ii)-(vii) and (k)(2). This is 
being done to incorporate changes made to the HEA by VAWA.
    Proposed Sec.  668.46(j)(1)(ii) would require that the 
institution's statement must contain certain elements in the 
description of the ongoing prevention and awareness campaigns for 
students and employees, including the institution's prohibition of 
dating violence, domestic violence, sexual assault, or stalking; 
definitions of those crimes; a definition of consent according to the 
applicable jurisdiction, a description of safe and positive options for 
bystander intervention; information on risk reduction; and other 
elements of paragraphs 668.46(b)(11)(ii)-(vii) and (k)(2). This is 
being done to incorporate changes made to the HEA by VAWA.
    Burden Calculation: On average, we estimate that the proposed 
changes to the institution's statements of policy and description of 
programs and ongoing campaigns would take each institution four hours 
of additional burden. As a result, reporting burden at public 
institutions would increase by 8,044 hours (2,011 reporting public 
institutions times 4 hours per institution). Reporting burden at 
private non-profit institutions would increase by 7,416 hours (1,854 
private non-profit institutions times 4 hours). Reporting burden at 
private for-profit institutions would increase by 13,460 hours (3,365 
private for-profit institutions times 4 hours per institution).
    Collectively, burden would increase by 28,920 hours under OMB 
Control Number 1845-0022.
    Requirements: Under proposed Sec.  668.46(k), Procedures for 
institutional disciplinary action in cases of alleged dating violence, 
domestic violence, sexual assault, or stalking, we would implement the 
statutory changes requiring an institution that participates in any 
title IV, HEA program, other than a foreign institution, to include a 
statement of policy in its annual security report addressing the 
procedures for institutional disciplinary action in cases of alleged 
dating violence, domestic violence, sexual assault, or stalking.
    Proposed Sec.  668.46(k)(1) would require various additions to the 
institution's statement of policy that must be included in the annual 
security report. While a statement of policy is required under current 
regulations (see Sec.  668.46(b)(11)(vii)), the proposed regulations 
would require the following additions to the statement of policy.
    Proposed Sec.  668.46(k)(1)(i) provides that the statement of 
policy must describe each type of disciplinary proceeding used by the 
institution including the steps, anticipated timelines, and decision-
making process for each, and how the institution determines which type 
of disciplinary hearing to use. Proposed Sec.  668.46(k)(1)(ii) would 
provide that the statement of policy must describe the standard of 
evidence that would be used

[[Page 35454]]

during any disciplinary proceeding. Proposed Sec.  668.46(k)(1)(iii) 
provides that the statement of policy must list all possible sanctions 
an institution may impose following the results of any disciplinary 
proceeding. Proposed Sec.  668.46(k)(1)(iv) provides that the policy 
statement must describe the range of protective measures that the 
institution may offer following an allegation of dating violence, 
domestic violence, sexual assault, or stalking.
    Under proposed Sec.  668.46(k)(2), the institution would have to 
provide additional information regarding its disciplinary proceedings 
in the statement of policy. An institution's statement of policy would 
have to provide that its disciplinary proceeding includes a prompt, 
fair, and impartial process from the initial investigation to the final 
result under proposed Sec.  668.46(k)(2)(i). The policy statement would 
have to provide that the proceeding will be conducted by officials who 
receive annual training on the issues related to dating violence, 
domestic violence, sexual assault, and stalking, and annual training on 
how to conduct an investigation and hearing process that protects the 
safety of victims and promotes accountability under proposed Sec.  
668.46(k)(2)(ii). Under proposed Sec.  668.46(k)(2)(iii), an 
institution's statement of policy must provide that its disciplinary 
proceeding will afford the accuser and the accused the same 
opportunities to have others present during an institutional 
disciplinary proceeding, including the opportunity to be accompanied to 
any related meeting or proceeding by an advisor of their choice. As 
proposed under Sec.  668.46(k)(2)(iv), an institution cannot limit the 
choice or presence of an advisor, however, the institution may 
establish restrictions regarding the advisor's participation in the 
proceedings as long as those restrictions apply equally to both the 
accuser and the accused. Finally, under proposed Sec.  668.46(k)(2)(v), 
an institution's statement of policy would require simultaneous 
notification, in writing, to both the accuser and the accused of the 
result of any institutional disciplinary proceeding, the institution's 
procedures for the accused and the victim's right to appeal the result, 
any change to the result, or when such results become final.
    Burden Calculation: On average, we estimate that the proposed 
changes to the institution's statement of policy would take each 
institution 2.75 hours of additional burden. As a result, reporting 
burden at public institutions would increase by 5,530 hours (2,011 
reporting public institutions times 2.75 hours per institution). 
Reporting burden at private non-profit institutions would increase by 
5,099 hours (1,854 private non-profit institutions times 2.75 hours). 
Reporting burden at private for-profit institutions would increase by 
9,254 hours (3,365 private for-profit institutions times 2.75 hours per 
institution).
    Collectively, burden would increase by 19,883 hours under OMB 
Control Number 1845-0022.
    Consistent with the discussion above, Table 4 describes the 
sections of the proposed regulations involving information collections, 
the information that would be collected, the collections that the 
Department will submit to OMB for approval and public comment under the 
PRA, and the estimated costs associated with the information 
collections. The monetized net costs of the increased burden on 
institutions and borrowers, using BLS wage data available at 
www.bls.gov/ncs/ect/sp/ecsuphst.pdf, is $2,840,849, as shown in the 
chart below. This cost was based on an hourly rate of $36.55 for 
institutions.

                                       Table 4--Collection of Information
----------------------------------------------------------------------------------------------------------------
                                                                            OMB Control number and
            Regulatory section                Information collection      estimated burden  [change    Estimated
                                                                                  in burden]             costs
----------------------------------------------------------------------------------------------------------------
Sec.   668.46(b) Annual security report..  Revises and expands existing  OMB 1845-0022 We estimate      $660,678
                                            language and adds new         that the burden would
                                            requirements for items to     increase by 18,076 hours.
                                            be reported annually.
Sec.   668.46(c) Crime statistics........  Revises and expands existing  OMB 1845-0022 We estimate       396,421
                                            language and adds new         that the burden would
                                            reporting requirements for    increase by 10,846 hours.
                                            items to be reported in the
                                            annual survey.
Sec.   668.46(j) Programs to prevent       Specifies the elements of     OMB 1845-0022 We estimate     1,057,026
 dating violence, domestic violence,        the required statement of     that the burden would
 sexual assault, and stalking.              policy on and description     increase by 28,920 hours.
                                            of the institution's
                                            programs and ongoing
                                            campaigns about prevention
                                            and awareness regarding
                                            these crimes that must be
                                            included in the
                                            institution's annual
                                            security report.
Sec.   668.46(k) Procedures for            Implements the statutory      OMB 1845-0022 We estimate       726,724
 institutional disciplinary action in       changes requiring an          that the burden would
 cases of alleged dating violence,          institution that              increase by 19,883 hours.
 domestic violence, sexual assault, and     participates in any title
 stalking.                                  IV, HEA program to include
                                            a statement of policy in
                                            its annual security report
                                            addressing the procedures
                                            for institutional
                                            disciplinary action in
                                            cases of alleged dating
                                            violence, domestic
                                            violence, sexual assault,
                                            or stalking.
----------------------------------------------------------------------------------------------------------------

Intergovernmental Review

    These programs are not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.

Assessment of Educational Impact

    In accordance with section 411 of the General Education Provisions 
Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on 
whether the proposed regulations would require transmission of 
information that any other agency or authority of the United States 
gathers or makes available.

Accessible Format

    Individuals with disabilities can obtain this document in an 
accessible

[[Page 35455]]

format (e.g., braille, large print, audiotape, or compact disc) on 
request to the person listed under FOR FURTHER INFORMATION CONTACT.

Electronic Access to This Document

    The official version of this document is the document published in 
the Federal Register. Free Internet access to the official edition of 
the Federal Register and the Code of Federal Regulations is available 
via the Federal Digital System at: www.gpo.gov/fdsys. At this site you 
can view this document, as well as all other documents of this 
Department published in the Federal Register, in text or Adobe Portable 
Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, 
which is available free at the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

List of Subjects

    Administrative practice and procedure, Aliens, Colleges and 
universities, Consumer protection, Grant programs--education, Loan 
programs--education, Reporting and recordkeeping requirements, 
Selective Service System, Student aid, Vocational education.

    Dated: June 16, 2014.
Arne Duncan,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary of 
Education proposes to amend part 668 of title 34 of the Code of Federal 
Regulations as follows:

PART 668--STUDENT ASSISTANCE GENERAL PROVISIONS

0
1. The authority citation for part 668 continues to read as follows:

    Authority:  20 U.S.C. 1001, 1002, 1003, 1070g, 1085, 1088, 1091, 
1092, 1094, 1099c, and 1099c-1, unless otherwise noted.

0
2. Section 668.46 is amended by:
0
a. In paragraph (a), adding definitions of ``Clery Geography'', 
``Dating violence'', ``Domestic violence'', ``Federal Bureau of 
Investigation's (FBI) Uniform Crime Reporting (UCR) program'', ``Hate 
crime'', ``Hierarchy Rule'', ``Programs to prevent dating violence, 
domestic violence, sexual assault, and stalking'', ``Sexual assault'', 
and ``Stalking''; in the definition of ``Professional counselor'', 
removing the words ``his or her license'' and adding, in their place, 
``the counselor's license'';
0
b. Revising paragraph (b)(4);
0
c. In paragraph (b)(7), removing the words ``criminal activity in which 
students engaged at'' and adding, in their place, ``criminal activity 
by students at'' and removing both occurrences of the word ``off-
campus'' and adding in their place ``noncampus'';
0
d. Revising paragraph (b)(11);
0
e. In paragraph (b)(12), removing the words ``Beginning with the annual 
security report distributed by October 1, 2003, a'' and adding in their 
place the word ``A'' and removing the words and punctuation ``section 
170101(j) of the Violent Crime Control and Law Enforcement Act of 1994 
(42 U.S.C. 14071(j)),'' and adding in their place ``section 121 of the 
Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 
16921),'';
0
f. In paragraph (b)(13), removing the words ``Beginning with the annual 
security report distributed by October 1, 2010, a'' and adding in their 
place the word ``A'' and removing the words ``as described in'' and 
adding in their place the words ``as required by'';
0
g. In paragraph (b)(14), removing the words ``Beginning with the annual 
security report distributed by October 1, 2010, a'' and adding in their 
place the word ``A'' and removing the words ``as described in'' and 
adding in their place the words ``as required by'';
0
h. Revising paragraph (c);
0
i. In paragraph (e)(1), adding the words ``that withholds as 
confidential the names and other identifying information of victims, as 
defined in section 40002(a)(20) of the Violence Against Women Act of 
1994 (42 U.S.C 13925(a)(20)), and that'' between the words ``and'' and 
``will'';
0
j. In paragraph (e)(1)(i), removing the word and number ``and (3)'';
0
k. In paragraph (f)(1), removing the words ``on campus, on a noncampus 
building or property, on public property, or within the patrol 
jurisdiction of the campus police or the campus security department'' 
and adding in their place ``within its Clery Geography and that'';
0
l. In paragraph (h)(1)(vi), removing the words and punctuation ``Advise 
students that,'' and adding in their place ``Advise students that'';
0
m. Adding a reserved paragraph (i); and
0
n. Adding paragraphs (j) and (m).
    The additions and revisions read as follows:


Sec.  668.46  Institutional security policies and crime statistics.

    (a) * * *
    Clery Geography: (1) For the purposes of collecting statistics on 
the crimes listed in paragraph (c) of this section for submission to 
the Department and inclusion in an institution's annual security 
report, Clery Geography includes--
    (i) Buildings and property that are part of the institution's 
campus;
    (ii) The institution's noncampus buildings and property; and
    (iii) Public property within or immediately adjacent to and 
accessible from the campus.
    (2) For the purposes of maintaining the crime log required in 
paragraph (f) of this section, Clery Geography includes, in addition to 
the locations in paragraph (1) of this definition, areas within the 
patrol jurisdiction of the campus police or the campus security 
department.
    Dating violence: Violence committed by a person who is or has been 
in a social relationship of a romantic or intimate nature with the 
victim.
    (1) The existence of such a relationship shall be determined based 
on the reporting party's statement and with consideration of the length 
of the relationship, the type of relationship, and the frequency of 
interaction between the persons involved in the relationship.
    (2) For the purpose of this definition--
    (i) Dating violence includes, but is not limited to, sexual or 
physical abuse or the threat of such abuse.
    (ii) Dating violence does not include acts covered under the 
definition of domestic violence.
    (3) For the purposes of complying with the requirements of this 
section and section 668.41, any incident meeting this definition is 
considered a crime for the purposes of Clery Act reporting.
    Domestic violence: (1) A felony or misdemeanor crime of violence 
committed--
    (i) By a current or former spouse or intimate partner of the 
victim;
    (ii) By a person with whom the victim shares a child in common;
    (iii) By a person who is cohabitating with, or has cohabitated 
with, the victim as a spouse or intimate partner;
    (iv) By a person similarly situated to a spouse of the victim under 
the domestic or family violence laws of the jurisdiction in which the 
crime of violence occurred, or
    (v) By any other person against an adult or youth victim who is 
protected from that person's acts under the domestic or family violence 
laws of the jurisdiction in which the crime of violence occurred.

[[Page 35456]]

    (2) For the purposes of complying with the requirements of this 
section and section 668.41, any incident meeting this definition is 
considered a crime for the purposes of Clery Act reporting.
    Federal Bureau of Investigation's (FBI) Uniform Crime Reporting 
(UCR) program: A nationwide, cooperative statistical effort in which 
city, university and college, county, State, Tribal, and federal law 
enforcement agencies voluntarily report data on crimes brought to their 
attention. The UCR program also serves as the basis for the definitions 
of crimes in Appendix A to this subpart and the requirements for 
classifying crimes in this subpart.
    Hate crime: A crime reported to local police agencies or to a 
campus security authority that manifests evidence that the victim was 
intentionally selected because of the perpetrator's bias against the 
victim. For the purposes of this section, the categories of bias 
include the victim's actual or perceived race, religion, gender, gender 
identity, sexual orientation, ethnicity, national origin, and 
disability.
    Hierarchy Rule: A requirement in the FBI's UCR program that, for 
purposes of reporting crimes in that system, when more than one 
criminal offense was committed during a single incident, only the most 
serious offense be counted.
* * * * *
    Programs to prevent dating violence, domestic violence, sexual 
assault, and stalking: (1) Comprehensive, intentional, and integrated 
programming, initiatives, strategies, and campaigns intended to end 
dating violence, domestic violence, sexual assault, and stalking that--
    (i) Are culturally relevant, inclusive of diverse communities and 
identities, sustainable, responsive to community needs, and informed by 
research or assessed for value, effectiveness, or outcome; and
    (ii) Consider environmental risk and protective factors as they 
occur on the individual, relationship, institutional, community, and 
societal levels.
    (2) Programs to prevent dating violence, domestic violence, sexual 
assault, and stalking include both primary prevention and awareness 
programs directed at incoming students and new employees and ongoing 
prevention and awareness campaigns directed at students and employees, 
as defined in paragraph (j)(2).
* * * * *
    Sexual assault: An offense that meets the definition of rape, 
fondling, incest, or statutory rape as used in the FBI's UCR program 
and included in Appendix A of this subpart.
    Stalking: (1) Engaging in a course of conduct directed at a 
specific person that would cause a reasonable person to--
    (i) Fear for the person's safety or the safety of others; or
    (ii) Suffer substantial emotional distress.
    (2) For the purpose of this definition--
    (i) Course of conduct means two or more acts, including, but not 
limited to, acts in which the stalker directly, indirectly, or through 
third parties, by any action, method, device, or means, follows, 
monitors, observes, surveils, threatens, or communicates to or about a 
person, or interferes with a person's property.
    (ii) Substantial emotional distress means significant mental 
suffering or anguish that may, but does not necessarily, require 
medical or other professional treatment or counseling.
    (iii) Reasonable person means a reasonable person under similar 
circumstances and with similar identities to the victim.
    (3) For the purposes of complying with the requirements of this 
section and section 668.41, any incident meeting this definition is 
considered a crime for the purposes of Clery Act reporting.
* * * * *
    (b) * * *
    (4) A statement of current policies concerning campus law 
enforcement that--
    (i) Addresses the enforcement authority and jurisdiction of 
security personnel;
    (ii) Addresses the working relationship of campus security 
personnel with State and local police agencies, including--
    (A) Whether those security personnel have the authority to make 
arrests; and
    (B) Any agreements, such as written memoranda of understanding 
between the institution and such agencies, for the investigation of 
alleged criminal offenses.
    (iii) Encourages accurate and prompt reporting of all crimes to the 
campus police and the appropriate police agencies, when the victim of a 
crime elects to or is unable to make such a report; and
    (iv) Describes procedures, if any, that encourage pastoral 
counselors and professional counselors, if and when they deem it 
appropriate, to inform the persons they are counseling of any 
procedures to report crimes on a voluntary, confidential basis for 
inclusion in the annual disclosure of crime statistics.
* * * * *
    (11) A statement of policy regarding the institution's programs to 
prevent dating violence, domestic violence, sexual assault, and 
stalking and of procedures that the institution will follow when one of 
these crimes is reported. The statement must include--
    (i) A description of the institution's educational programs and 
campaigns to promote the awareness of dating violence, domestic 
violence, sexual assault, and stalking, as required by paragraph (j) of 
this section;
    (ii) Procedures victims should follow if a crime of dating 
violence, domestic violence, sexual assault, or stalking has occurred, 
including written information about--
    (A) The importance of preserving evidence that may assist in 
proving that the alleged criminal offense occurred or may be helpful in 
obtaining a protection order;
    (B) How and to whom the alleged offense should be reported;
    (C) Options about the involvement of law enforcement and campus 
authorities, including notification of the victim's option to--
    (1) Notify proper law enforcement authorities, including on-campus 
and local police;
    (2) Be assisted by campus authorities in notifying law enforcement 
authorities if the victim so chooses; and
    (3) Decline to notify such authorities; and
    (D) Where applicable, the rights of victims and the institution's 
responsibilities for orders of protection, no-contact orders, 
restraining orders, or similar lawful orders issued by a criminal, 
civil, or tribal court or by the institution.
    (iii) Information about how the institution will protect the 
confidentiality of victims and other necessary parties, including how 
the institution will--
    (A) Complete publicly available recordkeeping and, for purposes of 
Clery Act reporting and disclosure, without the inclusion of 
identifying information about the victim, as defined in section 
40002(a)(20) of the Violence Against Women Act of 1994 (42 U.S.C. 
13925(a)(20)); and
    (B) Maintain as confidential any accommodations or protective 
measures provided to the victim, to the extent that maintaining such 
confidentiality would not impair the ability of the institution to 
provide the accommodations or protective measures.
    (iv) A statement that the institution will provide written 
notification to

[[Page 35457]]

students and employees about existing counseling, health, mental 
health, victim advocacy, legal assistance, visa and immigration 
assistance, and other services available for victims, both within the 
institution and in the community;
    (v) A statement that the institution will provide written 
notification to victims about options for, and available assistance in, 
changing academic, living, transportation, and working situations. The 
institution must make such accommodations if the victim requests them 
and if they are reasonably available, regardless of whether the victim 
chooses to report the crime to campus police or local law enforcement;
    (vi) An explanation of the procedures for institutional 
disciplinary action in cases of alleged dating violence, domestic 
violence, sexual assault, or stalking, as required by paragraph (k) of 
this section; and
    (vii) A statement that, when a student or employee reports to the 
institution that the student or employee has been a victim of dating 
violence, domestic violence, sexual assault, or stalking, whether the 
offense occurred on or off campus, the institution will provide the 
student or employee a written explanation of the student's or 
employee's rights and options, as described in paragraphs (b)(11)(ii) 
through (vi) of this section.
* * * * *
    (c) Crime statistics--(1) Crimes that must be reported and 
disclosed. An institution must report to the Department and disclose in 
its annual security report statistics for the three most recent 
calendar years concerning the number of each of the following crimes 
that occurred on or within its Clery Geography and that are reported to 
local police agencies or to a campus security authority:
    (i) Primary crimes, including--
    (A) Criminal homicide:
    (1) Murder and nonnegligent manslaughter, and
    (2) Negligent manslaughter.
    (B) Sex offenses:
    (1) Rape,
    (2) Fondling,
    (3) Incest, and
    (4) Statutory rape.
    (C) Robbery.
    (D) Aggravated assault.
    (E) Burglary.
    (F) Motor vehicle theft.
    (G) Arson.
    (ii) Arrests and disciplinary actions, including--
    (A) Arrests for liquor law violations, drug law violations, and 
illegal weapons possession.
    (B) Persons not included in paragraph (c)(1)(ii)(A) of this section 
who were referred for campus disciplinary action for liquor law 
violations, drug law violations, and illegal weapons possession.
    (iii) Hate crimes, including--
    (A) The number of each type of crime in paragraph (c)(1)(i) of this 
section that are determined to be hate crimes; and
    (B) The number of the following crimes that are determined to be 
hate crimes:
    (1) Larceny-theft.
    (2) Simple assault.
    (3) Intimidation.
    (4) Destruction/damage/vandalism of property.
    (iv) Dating violence, domestic violence, and stalking as defined in 
paragraph (a) of this section.
    (2) All reported crimes must be recorded. (i) An institution must 
include in its crime statistics all crimes reported to a campus 
security authority for purposes of Clery Act reporting. Clery Act 
reporting does not require initiating an investigation or disclosing 
identifying information about the victim, as defined in section 
40002(a)(20) of the Violence Against Women Act of 1994 (42 U.S.C. 
13925(a)(20)).
    (ii) An institution may not withhold, or subsequently remove, a 
reported crime from its crime statistics based on a decision by a 
court, coroner, jury, prosecutor, or other similar noncampus official.
    (3) Crimes must be recorded by calendar year. (i) An institution 
must report and disclose a crime statistic for the calendar year in 
which the crime was reported to local police agencies or to a campus 
security authority.
    (ii) When recording crimes of stalking by calendar year, an 
institution must follow the requirements in paragraph (c)(6) of this 
section.
    (4) Hate crimes must be recorded by category of bias. For each hate 
crime recorded under paragraph (c)(1)(iii) of this section, an 
institution must identify the category of bias that motivated the 
crime. For the purposes of this paragraph, the categories of bias 
include the victim's actual or perceived--
    (i) Race,
    (ii) Gender,
    (iii) Gender identity,
    (iv) Religion,
    (v) Sexual orientation,
    (vi) Ethnicity,
    (vii) National origin, and
    (viii) Disability.
    (5) Crimes must be recorded by location. (i) An institution must 
specify whether each of the crimes recorded under paragraph (c)(1) of 
this section occurred--
    (A) On campus,
    (B) In or on a noncampus building or property, or
    (C) On public property.
    (ii) An institution must identify, of the crimes that occurred on 
campus, the number that took place in dormitories or other residential 
facilities for students on campus.
    (iii) When recording stalking by location, an institution must 
follow the requirements in paragraph (c)(6) of this section.
    (6) Recording reports of stalking. (i) When recording reports of 
stalking that include activities in more than one calendar year, an 
institution must record a crime statistic only for the calendar year in 
which the course of conduct was first reported to a local police agency 
or to a campus security authority. If the course of conduct continues 
in a subsequent year, it must be recorded for that year.
    (ii) An institution must record each report of stalking as 
occurring at only the first location within the institution's Clery 
Geography in which:
    (A) A perpetrator engaged in the stalking course of conduct; or
    (B) A victim first became aware of the stalking.
    (iii) A report of stalking must be counted as a new and distinct 
crime and is not associated with a previous report of stalking when the 
stalking behavior continues after an official intervention including, 
but not limited to, an institutional disciplinary action or the 
issuance of a no-contact order, restraining order or any warning by the 
institution or a court.
    (7) Identification of the victim or the accused. The statistics 
required under this paragraph (c) may not include the identification of 
the victim or the person accused of committing the crime.
    (8) Pastoral and professional counselor. An institution is not 
required to report statistics under paragraph (c) of this section for 
crimes reported to a pastoral or professional counselor.
    (9) Using the FBI's UCR program and the Hierarchy Rule. (i) An 
institution must compile the crime statistics required under paragraphs 
(c)(1)(i) and (iii) of this section using the definitions of crimes 
provided in Appendix A to this subpart and the Federal Bureau of 
Investigation's UCR Hate Crime Data Collection Guidelines and Training 
Guide for Hate Crime Data Collection. For further guidance concerning 
the application of definitions and classification of crimes, an 
institution must use either the UCR Reporting Handbook or the UCR 
Reporting Handbook: National Incident-Based Reporting System (NIBRS) 
EDITION,

[[Page 35458]]

except as provided in paragraph (c)(9)(ii) of this section.
    (ii) In counting crimes when more than one offense was committed 
during a single incident, an institution must conform to the 
requirements of the Hierarchy Rule in the UCR Reporting Handbook, with 
one exception: In counting sex offenses, the Hierarchy Rule does not 
apply. For example, if a victim is both raped and murdered in a single 
incident, then an institution must include both the rape and the murder 
in its statistics.
    (10) Use of a map. In complying with the statistical reporting 
requirements under this paragraph (c), an institution may provide a map 
to current and prospective students and employees that depicts its 
campus, noncampus buildings or property, and public property areas if 
the map accurately depicts its campus, noncampus buildings or property, 
and public property areas.
    (11) Statistics from police agencies. In complying with the 
statistical reporting requirements under this paragraph (c), an 
institution must make a reasonable, good faith effort to obtain the 
required statistics and may rely on the information supplied by a local 
or State police agency. If the institution makes such a reasonable, 
good faith effort, it is not responsible for the failure of the local 
or State police agency to supply the required statistics.
* * * * *
    (i) [Reserved]
    (j) Programs to prevent dating violence, domestic violence, sexual 
assault, and stalking. As required by paragraph (b)(11) of this 
section, an institution must include in its annual security report a 
statement of policy that addresses the institution's programs to 
prevent dating violence, domestic violence, sexual assault, and 
stalking.
    (1) The statement must include--
    (i) A description of the institution's primary prevention and 
awareness programs for all incoming students and new employees, which 
must include--
    (A) A statement that the institution prohibits the crimes of dating 
violence, domestic violence, sexual assault, and stalking;
    (B) The definition of ``dating violence,'' ``domestic violence,'' 
``sexual assault,'' and ``stalking'' in the applicable jurisdiction;
    (C) The definition of ``consent,'' in reference to sexual activity, 
in the applicable jurisdiction;
    (D) A description of safe and positive options for bystander 
intervention;
    (E) Information on risk reduction; and
    (F) The information described in paragraphs (b)(11) and (k)(2) of 
this section; and
    (ii) A description of the institution's ongoing prevention and 
awareness campaigns for students and employees, including information 
described in paragraph (j)(1)(i)(A) through (F) of this section.
    (2) For the purposes of this paragraph--
    (i) Awareness programs means community-wide or audience-specific 
programming, initiatives, and strategies that increase audience 
knowledge and share information and resources to prevent violence, 
promote safety, and reduce perpetration.
    (ii) Bystander intervention means safe and positive options that 
may be carried out by an individual or individuals to prevent harm or 
intervene when there is a risk of dating violence, domestic violence, 
sexual assault, or stalking. Bystander intervention includes 
recognizing situations of potential harm, understanding institutional 
structures and cultural conditions that facilitate violence, overcoming 
barriers to intervening, identifying safe and effective intervention 
options, and taking action to intervene.
    (iii) Ongoing prevention and awareness campaigns means programming, 
initiatives, and strategies that are sustained over time and focus on 
increasing understanding of topics relevant to and skills for 
addressing dating violence, domestic violence, sexual assault, and 
stalking, using a range of strategies with audiences throughout the 
institution and including information described in paragraph 
(j)(1)(i)(A) through (F) of this section.
    (iv) Primary prevention programs means programming, initiatives, 
and strategies informed by research or assessed for value, 
effectiveness, or outcome that are intended to stop dating violence, 
domestic violence, sexual assault, and stalking before they occur 
through the promotion of positive and healthy behaviors that foster 
healthy, mutually respectful relationships and sexuality, encourage 
safe bystander intervention, and seek to change behavior and social 
norms in healthy and safe directions.
    (v) Risk reduction means options designed to decrease perpetration 
and bystander inaction, and to increase empowerment for victims in 
order to promote safety and to help individuals and communities address 
conditions that facilitate violence.
    (3) An institution's programs to prevent dating violence, domestic 
violence, sexual assault, and stalking must include, at a minimum, the 
information described in paragraph (j)(1) of this section.
    (k) Procedures for institutional disciplinary action in cases of 
alleged dating violence, domestic violence, sexual assault, or 
stalking. As required by paragraph (b)(11)(vi) of this section, an 
institution must include in its annual security report a clear 
statement of policy that addresses the procedures for institutional 
disciplinary action in cases of alleged dating violence, domestic 
violence, sexual assault, or stalking and that--
    (1)(i) Describes each type of disciplinary proceeding used by the 
institution; the steps, anticipated timelines, and decision-making 
process for each type of disciplinary proceeding; and how the 
institution determines which type of proceeding to use based on the 
circumstances of an allegation of dating violence, domestic violence, 
sexual assault, or stalking;
    (ii) Describes the standard of evidence that will be used during 
any institutional disciplinary proceeding arising from an allegation of 
dating violence, domestic violence, sexual assault, or stalking;
    (iii) Lists all of the possible sanctions that the institution may 
impose following the results of any institutional disciplinary 
proceeding for an allegation of dating violence, domestic violence, 
sexual assault, or stalking; and
    (iv) Describes the range of protective measures that the 
institution may offer following an allegation of dating violence, 
domestic violence, sexual assault, or stalking;
    (2) Provides that the proceedings will--
    (i) Include a prompt, fair, and impartial process from the initial 
investigation to the final result;
    (ii) Be conducted by officials who, at a minimum, receive annual 
training on the issues related to dating violence, domestic violence, 
sexual assault, and stalking and on how to conduct an investigation and 
hearing process that protects the safety of victims and promotes 
accountability;
    (iii) Provide the accuser and the accused with the same 
opportunities to have others present during any institutional 
disciplinary proceeding, including the opportunity to be accompanied to 
any related meeting or proceeding by the advisor of their choice;
    (iv) Not limit the choice of advisor or presence for either the 
accuser or the accused in any meeting or institutional disciplinary 
proceeding; however, the institution may establish restrictions 
regarding the extent to which the advisor may participate in the

[[Page 35459]]

proceedings, as long as the restrictions apply equally to both parties; 
and
    (v) Require simultaneous notification, in writing, to both the 
accuser and the accused, of--
    (A) The result of any institutional disciplinary proceeding that 
arises from an allegation of dating violence, domestic violence, sexual 
assault, or stalking;
    (B) The institution's procedures for the accused and the victim to 
appeal the result of the institutional disciplinary proceeding, if such 
procedures are available;
    (C) Any change to the result; and
    (D) When such results become final.
    (3) For the purposes of this paragraph--
    (i) A prompt, fair, and impartial proceeding includes a proceeding 
that is--
    (A) Completed within reasonably prompt timeframes designated by an 
institution's policy, including a process that allows for the extension 
of timeframes for good cause with written notice to the accuser and the 
accused of the delay and the reason for the delay;
    (B) Conducted in a manner that--
    (1) Is consistent with the institution's policies and transparent 
to the accuser and accused;
    (2) Includes timely notice of meetings at which the accuser or 
accused, or both, may be present; and
    (3) Provides timely access to the accuser, the accused, and 
appropriate officials to any information that will be used after the 
fact-finding investigation but during informal and formal disciplinary 
meetings and hearings; and
    (C) Conducted by officials who do not have a conflict of interest 
or bias for or against the accuser or the accused.
    (ii) Advisor means any individual who provides the accuser or 
accused support, guidance, or advice.
    (iii) Proceeding means all activities related to a non-criminal 
resolution of an institutional disciplinary complaint, including, but 
not limited to, fact-finding investigations, formal or informal 
meetings, and hearings.
    (iv) Result means any initial, interim, and final decision by any 
official or entity authorized to resolve disciplinary matters within 
the institution. The result must include any sanctions imposed by the 
institution. Notwithstanding section 444 of the General Education 
Provisions Act (20 U.S.C. 1232g), commonly referred to as the Family 
Educational Rights and Privacy Act (FERPA), the result must also 
include the rationale for the result and the sanctions.
    (l) Compliance with paragraph (k) of this section does not 
constitute a violation of FERPA.
    (m) Prohibition on retaliation. An institution, or an officer, 
employee, or agent of an institution, may not retaliate, intimidate, 
threaten, coerce, or otherwise discriminate against any individual for 
exercising their rights or responsibilities under any provision in this 
section.
* * * * *
0
3. Revise appendix A to subpart D to read as follows:

Appendix A to Subpart D of Part 668--Crime Definitions in Accordance 
With the Federal Bureau of Investigation's Uniform Crime Reporting 
Program

    The following definitions are to be used for reporting the 
crimes listed in Sec.  668.46, in accordance with the Federal Bureau 
of Investigation's Uniform Crime Reporting Program. The definitions 
for murder; robbery; aggravated assault; burglary; motor vehicle 
theft; weapons: carrying, possessing, etc.; law violations; drug 
abuse violations; and liquor law violations are from the Uniform 
Crime Reporting Handbook. The definitions of the sex offenses are 
excerpted from the National Incident-Based Reporting System Edition 
of the Uniform Crime Reporting Handbook. The definitions of larceny-
theft (except motor vehicle theft), simple assault, intimidation, 
and destruction/damage/vandalism of property are from the Hate Crime 
Data Collection Guidelines of the Uniform Crime Reporting Handbook.

Crime Definitions From the Uniform Crime Reporting Handbook

Arson

    Any willful or malicious burning or attempt to burn, with or 
without intent to defraud, a dwelling house, public building, motor 
vehicle or aircraft, personal property of another, etc.

Criminal Homicide--Manslaughter by Negligence

    The killing of another person through gross negligence.

Criminal Homicide--Murder and Nonnegligent Manslaughter

    The willful (nonnegligent) killing of one human being by 
another.

Robbery

    The taking or attempting to take anything of value from the 
care, custody, or control of a person or persons by force or threat 
of force or violence and/or by putting the victim in fear.

Aggravated Assault

    An unlawful attack by one person upon another for the purpose of 
inflicting severe or aggravated bodily injury. This type of assault 
usually is accompanied by the use of a weapon or by means likely to 
produce death or great bodily harm. (It is not necessary that injury 
result from an aggravated assault when a gun, knife, or other weapon 
is used which could and probably would result in serious personal 
injury if the crime were successfully completed.)

Burglary

    The unlawful entry of a structure to commit a felony or a theft. 
For reporting purposes this definition includes: Unlawful entry with 
intent to commit a larceny or felony; breaking and entering with 
intent to commit a larceny; housebreaking; safecracking; and all 
attempts to commit any of the aforementioned.

Motor Vehicle Theft

    The theft or attempted theft of a motor vehicle. (Classify as 
motor vehicle theft all cases where automobiles are taken by persons 
not having lawful access even though the vehicles are later 
abandoned--including joyriding.)

Weapons: Carrying, Possessing, Etc.

    The violation of laws or ordinances prohibiting the manufacture, 
sale, purchase, transportation, possession, concealment, or use of 
firearms, cutting instruments, explosives, incendiary devices, or 
other deadly weapons.

Drug Abuse Violations

    The violation of laws prohibiting the production, distribution, 
and/or use of certain controlled substances and the equipment or 
devices utilized in their preparation and/or use. The unlawful 
cultivation, manufacture, distribution, sale, purchase, use, 
possession, transportation, or importation of any controlled drug or 
narcotic substance. Arrests for violations of State and local laws, 
specifically those relating to the unlawful possession, sale, use, 
growing, manufacturing, and making of narcotic drugs.

Liquor Law Violations

    The violation of State or local laws or ordinances prohibiting 
the manufacture, sale, purchase, transportation, possession, or use 
of alcoholic beverages, not including driving under the influence 
and drunkenness.

Sex Offenses Definitions From the Uniform Crime Reporting Program

Sex Offenses

    Any sexual act directed against another person, without the 
consent of the victim, including instances where the victim is 
incapable of giving consent.
    A. Rape--The penetration, no matter how slight, of the vagina or 
anus with any body part or object, or oral penetration by a sex 
organ of another person, without the consent of the victim.
    B. Fondling--The touching of the private body parts of another 
person for the purpose of sexual gratification, without the consent 
of the victim, including instances where the victim is incapable of 
giving consent because of his/her age or because of his/her 
temporary or permanent mental incapacity.
    C. Incest--Nonforcible sexual intercourse between persons who 
are related to each other within the degrees wherein marriage is 
prohibited by law.
    D. Statutory Rape--Nonforcible sexual intercourse with a person 
who is under the statutory age of consent.

[[Page 35460]]

Definitions From the Hate Crime Data Collection Guidelines of the 
Uniform Crime Reporting Handbook

Larceny-Theft (Except Motor Vehicle Theft)

    The unlawful taking, carrying, leading, or riding away of 
property from the possession or constructive possession of another. 
Attempted larcenies are included. Embezzlement, confidence games, 
forgery, worthless checks, etc., are excluded.

Simple Assault

    An unlawful physical attack by one person upon another where 
neither the offender displays a weapon, nor the victim suffers 
obvious severe or aggravated bodily injury involving apparent broken 
bones, loss of teeth, possible internal injury, severe laceration, 
or loss of consciousness.

Intimidation

    To unlawfully place another person in reasonable fear of bodily 
harm through the use of threatening words and/or other conduct, but 
without displaying a weapon or subjecting the victim to actual 
physical attack.

Destruction/Damage/Vandalism of Property

    To willfully or maliciously destroy, damage, deface, or 
otherwise injure real or personal property without the consent of 
the owner or the person having custody or control of it.

[FR Doc. 2014-14384 Filed 6-19-14; 8:45 am]
BILLING CODE 4000-01-P