[Federal Register Volume 79, Number 202 (Monday, October 20, 2014)]
[Rules and Regulations]
[Pages 62751-62790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24284]



[[Page 62751]]

Vol. 79

Monday,

No. 202

October 20, 2014

Part III





Department of Education





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34 CFR Part 668





Violence Against Women Act; Final Rule

Federal Register / Vol. 79 , No. 202 / Monday, October 20, 2014 / 
Rules and Regulations

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DEPARTMENT OF EDUCATION

34 CFR Part 668

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


Violence Against Women Act

AGENCY: Office of Postsecondary Education, Department of Education.

ACTION: Final regulations.

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SUMMARY: The Secretary amends 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 regulations are 
intended to update, clarify, and improve the current regulations.

DATES: These regulations are effective July 1, 2015.

FOR FURTHER INFORMATION CONTACT: Ashley Higgins, U.S. Department of 
Education, 1990 K Street NW., Room 8037, Washington, DC 20006-8502. 
Telephone (202) 219-7061 or by email at: [email protected].
    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. L. 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 are 
amending Sec.  668.46 of title 34 of the Code of Federal Regulations 
(CFR) to implement these statutory changes. Additionally, we are 
updating this section by incorporating provisions added to the Clery 
Act by the Higher Education Opportunity Act, enacted in 2008, deleting 
outdated deadlines and cross-references, and making other changes to 
improve the readability and clarity of the regulations. We have 
published 34 CFR 668.46 in its entirety at the end of these regulations 
for our readers' convenience.
    Summary of the Major Provisions of This Regulatory Action: The 
final regulations will--
     Require institutions to maintain statistics about the 
number of incidents of dating violence, domestic violence, sexual 
assault, and stalking that meet the definitions of those terms;
     Clarify the very limited circumstances in which an 
institution may remove reports of crimes that have been ``unfounded'' 
and require institutions to report to the Department and disclose in 
the annual security report the number of ``unfounded'' crime reports;
     Revise the definition of ``rape'' to reflect the Federal 
Bureau of Investigation's (FBI) 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 separate categories;
     Require institutions to provide to incoming students and 
new employees and describe in their annual security reports primary 
prevention and awareness programs. These programs must include: a 
statement that the institution prohibits the crimes of dating violence, 
domestic violence, sexual assault, and stalking, as those terms are 
defined in these final regulations; the definitions 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 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; 
how to file a disciplinary complaint; 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 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 and equal access to information that will be used 
during informal and formal disciplinary meetings and hearings;
     Define the terms ``proceeding'' and ``result''; and
     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).
    Costs and Benefits: A benefit of these final regulations is that 
they will strengthen the rights of victims of dating violence, domestic 
violence, sexual assault, and stalking on college campuses. 
Institutions will 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 will improve crime reporting and 
will help ensure

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that students, prospective students, families, and employees and 
potential employees of the institutions will be better informed about 
each campus' safety and security procedures. Ultimately, the improved 
reporting and transparency will promote safety and security on college 
campuses.
    Institutions are likely to incur two types of costs under the final 
regulations: Paperwork costs of complying with the regulations, and 
other compliance costs that institutions may incur as they take 
required steps to improve security on campus. Institutions will incur 
paperwork costs involved in: Changing the reporting of crime statistics 
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 will also incur 
additional compliance costs. Costs to improve safety on campus will 
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 final regulations are not estimated to have a significant 
net budget impact on the title IV, HEA student aid programs over loan 
cohorts from 2014 to 2024.
    On June 20, 2014, the Secretary published a notice of proposed 
rulemaking (NPRM) for these regulations in the Federal Register (79 FR 
35418). The final regulations contain several changes from the NPRM. We 
fully explain the changes in the Analysis of Comments and Changes 
section of the preamble that follows.
    Implementation date of these regulations: Section 482(c) of the HEA 
requires that regulations affecting programs under title IV of the HEA 
be published in final form by November 1, prior to the start of the 
award year (July 1) to which they apply. However, that section also 
permits the Secretary to designate any regulation as one that an entity 
subject to the regulations may choose to implement earlier and the 
conditions for early implementation.
    The Secretary has not designated any of the provisions in these 
final regulations for early implementation. Therefore, these final 
regulations are effective July 1, 2015.
    Public Comment: In response to our invitation in the NPRM, 
approximately 2,200 parties submitted comments on the proposed 
regulations. In addition, approximately 3,600 individuals submitted a 
petition expressing their support for comments submitted by the 
American Association of University Women. We group major issues 
according to subject, with appropriate sections of the regulations 
referenced in parentheses. We discuss other substantive issues under 
the sections of the proposed regulations to which they pertain. 
Generally, we do not address technical or other minor changes.
    Analysis of Comments and Changes: An analysis of the comments and 
of any changes in the regulations since publication of the NPRM 
follows.

General

    Comments: The great majority of the commenters expressed strong 
support for the proposed regulations. They believed that these 
regulations would: Improve the data related to incidents of dating 
violence, domestic violence, and stalking at institutions; foster 
greater transparency and accountability around institutional policies 
and procedures; strengthen institutional efforts to prevent dating 
violence, domestic violence, sexual assault, and stalking; and ensure 
proper training for individuals who are involved in institutional 
disciplinary proceedings. The commenters believed that these changes 
would lead to greater institutional accountability and result in better 
information for students and families. They also believed that these 
regulations would foster more supportive environments for victims of 
dating violence, domestic violence, sexual assault, and stalking to 
come forward to report these crimes. Although generally supportive of 
the regulations, a few commenters urged the Department to consider the 
needs and perspectives of an accused student, particularly in regard to 
the regulations pertaining to institutional disciplinary proceedings.
    Several commenters noted that the changes that VAWA made to the 
Clery Act did not alter an institution's obligations to comply with 
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\ However, many commenters 
noted that institutions' obligations under the Clery Act and under 
title IX overlap in some areas, and they urged the Department to 
provide as much guidance as possible about how to comply with both laws 
to promote best practices and to reduce regulatory burden.
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    \1\ Title IX prohibits discrimination on the basis of sex in 
federally funded education programs or activities.
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    Finally, some of the commenters stressed the need for institutions 
to consider students and employees with disabilities when designing 
their campus safety policies, especially their campus sexual assault 
policies. The commenter noted that women with disabilities are at a 
high risk for sexual and other forms of violence.
    Discussion: We appreciate the commenters' support. We note that the 
White House Task Force to Protect Students from Sexual Assault, which 
was established on January 22, 2014, has released and continues to 
develop guidance and model policies for institutions to use in working 
to comply with the Clery Act and title IX. Those resources are 
available to institutions at the Web site www.notalone.gov under the 
``Schools'' tab. The Department intends to build on these resources and 
provide additional tools and guidance where possible for institutions, 
including by updating The Handbook for Campus Safety and Security 
Reporting (http://www2.ed.gov/admins/lead/safety/handbook.pdf).
    Changes: None.

Implementation

    Comments: Several of the commenters requested clarification 
regarding the implementation of these new regulations. Some commenters 
wondered whether institutions would be expected to identify whether 
crimes included in statistics in previous calendar years met the 
definitions of ``dating violence,'' ``domestic violence,'' or 
``stalking'' or to revise their statistics pertaining to rape using the 
revised definition. Other commenters stressed that institutions should 
be given significant time to develop or revise procedures, learn how to 
categorize the new crimes, and update their annual security reports to 
comply with these final regulations.
    Discussion: As first explained by the Department in an electronic 
announcement published on May 29th, 2013, and later reiterated in Dear 
Colleague Letter GEN-14-13 (http://ifap.ed.gov/dpcletters/GEN1413.html), institutions must make a good-faith effort to include 
accurate and complete statistics for dating violence, domestic 
violence, sexual assault, and stalking as defined in section 40002(a) 
of the Violence Against Women Act of 1994 for calendar year 2013 in the 
annual security report that must be published by October 1, 2014. 
Institutions will not be required to revise their statistics for 
calendar years 2013 or 2014 to reflect the final regulations.

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    Section 485(f)(1)(F) and (f)(5) of the Clery Act requires 
institutions to disclose and report crime statistics for the three most 
recent calendar years in each annual security report. Consistent with 
the approach that we took when implementing the changes to the Clery 
Act and the annual fire safety report added by the Higher Education 
Opportunity Act, we will phase in the new statistical requirements. The 
first annual security report to contain a full three years of data 
using the definitions in these final regulations will be the annual 
security report due on October 1, 2018.
    Section 304(b) of VAWA specified that the amendments made to the 
Clery Act would be effective with respect to the annual security report 
prepared by an institution of higher education one calendar year after 
the date of enactment of VAWA, and each subsequent calendar year. 
Accordingly, institutions are legally required to update their 
policies, procedures, and practices to meet the statutory requirements 
for the annual security report issued in 2014. These final regulations 
will become effective on July 1, 2015, providing institutions at least 
seven months after the regulations are published to further update or 
refine their policies, procedures, and programs before the next annual 
security report is due on October 1, 2015. We believe that this is 
sufficient time for institutions to come into compliance.
    Changes: None.

Burden

    Comments: Several commenters raised concerns about the burden on 
institutions imposed by these regulations, particularly by the 
requirements for the development of prevention programs and the 
requirements for campus disciplinary proceedings. The commenters 
believed that the cost to institutions of complying with these 
regulations could be significant. One commenter noted that these 
regulations would result in higher tuition costs because it would 
require institutions to divert funds from the delivery of education to 
hiring administrative staff and legal support. These and other 
commenters urged the Department to provide best practices and model 
policies and programs to help reduce the costs associated with 
implementing these changes.
    Discussion: We understand the commenters' concerns about the burden 
associated with implementing these regulations. However, these 
requirements are statutory and institutions must comply with them to 
participate in the title IV, HEA programs. As discussed previously 
under ``General,'' the Department is committed to providing 
institutions with guidance where possible to minimize the additional 
costs and burdens. For additional information about the costs and 
burden associated with these regulations, please see the discussion 
under ``Paperwork Reduction Act of 1995.''
    Changes: None.

Availability of Annual Security Report and Statistics

    Comments: Several commenters made suggestions for changes in how 
institutions must make their annual security reports and statistics 
available. One commenter suggested that institutions should have to 
publish their statistics on their Web sites so that parents and 
students can make informed decisions about where to enroll. Another 
commenter noted that it is often difficult to find the required 
policies and procedures on an institution's Web site. One commenter 
recommended requiring institutions to post all information related to 
an institution's policies for dating violence, domestic violence, 
sexual assault, and stalking in one place on its Web site. If related 
information appears on other pages of an institution's Web site, the 
commenter recommended requiring institutions to provide links to the 
text of its policy to prevent misunderstandings about the school's 
policy or procedures. Another commenter urged the Department to require 
institutions to provide information to students and employees in 
languages other than English, particularly where a dominant portion of 
the campus community speaks a language other than English. Several 
commenters raised concerns about whether and how students, employees, 
and prospective students and employees would know when an institution 
updated its policies, procedures, and programs--particularly those 
related to campus disciplinary proceedings. Finally, one commenter 
suggested that the annual security report is unlikely to be effective 
or to influence behavior because it is just one of numerous disclosures 
that institutions must provide and is easily overlooked.
    Discussion: With regard to the commenters' concerns that campus 
safety- and security-related statistics and policies can be difficult 
to find, we note that this information must all be contained in an 
institution's annual security report. Institutions must distribute the 
annual security report every year to all enrolled students and 
employees through appropriate publications and mailings, including 
direct mailing to each individual through the U.S. Postal Service, 
campus mail, or electronic mail; by providing a publication directly to 
each individual; or by posting it on the institution's Web site. 
Institutions must also distribute the annual security report to all 
prospective students and employees upon request.
    Although institutions are not required by the Clery Act to post 
their annual security report on their Web site, the Department collects 
the crime statistics from institutions each fall and makes the data 
available to the public on the Department's College Navigator Web site 
at www.collegenavigator.gov, and on the Office of Postsecondary 
Education's Data Analysis Cutting Tool at http://www.ope.ed.gov/security/. We encourage institutions that post annual security reports 
on their Web site to place related information on the same central Web 
site or to provide a link to this related information from the site 
where the annual security report is posted so individuals will have 
easy access to the institution's policies. Although not required by the 
Clery Act, consistent with Federal civil rights laws, institutions must 
take appropriate measures to ensure that all segments of its community, 
including those with limited English proficiency, have meaningful 
access to vital information, such as their annual security reports.
    In response to the comments about requiring notification when an 
institution updates its campus security policies and procedures, we 
note that the Clery Act requires an institution to distribute its 
annual security report annually (by October 1 each year). If an 
institution changes its policies during the year, it should notify its 
students and employees. Institutions that publish their annual security 
reports on an Intra- or Internet site would be able to post the new 
version of any changed policies or procedures on a continuing basis 
throughout the year, and they could notify the campus community of the 
changes through a variety of means (such as, electronic mail, an 
announcement on the institution's home page or flyers).
    Finally, although we understand the commenter's concern that the 
campus safety disclosures may be overlooked by students and employees, 
the commenter did not provide any recommendations for how to ensure 
that these disclosures are not overlooked.
    Changes: None.

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668.46(a) Definitions

Clery Geography

    Comments: Several commenters supported the inclusion of a 
definition of ``Clery geography'' in the interest of making these 
regulations more user-friendly and succinct. A few commenters, however, 
raised some questions and concerns about the proposed definition. One 
commenter was unsure about what areas would be considered ``public 
property'' for Clery Act reporting purposes, particularly for 
institutions located in strip malls or office buildings, and requested 
additional clarification. Another commenter believed that the 
definition is confusing and suggested instead creating one definition 
pertaining to locations for which an institution must maintain crime 
statistics and another definition pertaining to locations for which an 
institution must include incidents in its crime log. A third commenter 
requested clarification about what the phrase ``within the patrol 
jurisdiction of the campus police or the campus security department'' 
would include.
    Discussion: We appreciate the support from the commenters, and 
reiterate that we are not changing the long-standing definitions of 
``campus,'' ``noncampus buildings or property,'' and ``public 
property'' in Sec.  668.46(a). Instead, we have added the definition of 
``Clery geography'' to improve the readability and understandability of 
the regulations. The definition of ``public property'' continues to 
include all public property, including thoroughfares, streets, 
sidewalks, and parking facilities, that is within the campus, or 
immediately adjacent to and accessible from the campus. The Handbook 
for Campus Safety and Security Reporting includes several examples of 
what would be considered a part of a school's ``Clery geography,'' 
including how to determine a school's ``public property,'' but we will 
consider including additional examples when we update that guidance in 
the future.
    We disagree with the commenter that it would be more appropriate to 
separate the definition of ``Clery geography'' into two definitions. We 
believe that the definition as written makes it clear that institutions 
must consider campus, noncampus, and public property locations when 
recording the statistics required under Sec.  668.46(c), and that they 
must consider campus, noncampus, public property, and locations within 
the patrol jurisdiction of the campus police or campus security 
department when recording crimes in the crime log required under Sec.  
668.46(f). To clarify, the phrase ``patrol jurisdiction of the campus 
police or campus security department'' refers to any property that is 
regularly patrolled by the campus public safety office but that does 
not meet the definitions of campus, noncampus, or public property. 
These patrol services are typically provided pursuant to a formal 
agreement with the local jurisdiction, a local civic association, or 
other public entity.
    Changes: None.

Consent

    Comments: We received numerous comments regarding our decision not 
to define ``consent'' for the purposes of the Clery Act. Many of the 
commenters disagreed with the Department's conclusion that a definition 
of ``consent'' is not needed because, for purposes of Clery Act 
reporting, institutions are required to record all reported sex 
offenses in the Clery Act statistics and the crime log regardless of 
any issue of consent. The commenters strongly urged the Department to 
define ``consent'' in these final regulations to provide clarity for 
institutional officials and to promote consistency across institutions. 
The commenters noted that the definition of ``consent'' varies by 
locality, and that some States do not have a definition. These 
commenters believed that establishing a Federal definition in these 
regulations would inform State efforts to legislate on this issue. In 
States that do not have a definition of ``consent,'' some commenters 
argued, schools are left to determine their own definitions and have 
inappropriately deferred to local law enforcement for determinations 
about whether ``consent,'' was provided based on a criminal evidentiary 
standard.
    Other commenters argued that including statistics about offenses in 
reports without considering whether there was consent ignores a 
critical part of the definition of some VAWA crimes, rendering the 
crime statistics over inclusive. In other words, they believed that not 
considering consent in the categorization of an incident would result 
in some actions being reported regardless of whether a key component of 
the crime existed.
    Some other commenters believed that the Department should define 
``consent'' because it is an essential part of education and prevention 
programming. They argued that, even if a definition is not needed for 
recording sex offenses, not having a definition ignores current 
conversations about campus sexual assault.
    Some of the commenters who supported including a definition of 
``consent'' provided definitions for the Department's consideration. 
Several commenters recommended using the definition that the Department 
included in the draft language provided to the non-Federal negotiators 
at the second negotiating session. One commenter recommended defining 
``consent'' as was proposed at the second negotiating session but 
making a slight modification to clarify that one's agreement to engage 
in a specific sexual activity during a sexual encounter can be revoked 
at any time. Another commenter made a similar recommendation but 
suggested clarifying that consent to engage in sexual activity with one 
person does not imply consent to engage in sexual activity with another 
person and that incapacitation could include having an intellectual or 
other disability that prevents an individual from having the capacity 
to consent. One commenter suggested that, at a minimum, the Department 
should provide that the applicable jurisdiction's definition of 
``consent'' applies for purposes of reporting under these regulations.
    By contrast, some commenters agreed with the Department that a 
definition of ``consent'' should not be included in these regulations. 
These commenters urged the Department to provide guidance on the 
definition of ``consent,'' rather than establish a regulatory 
definition.
    Discussion: During the second negotiation session, we presented 
draft language that would have defined ``consent'' to mean ``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 be able to 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. We continue to 
believe that this draft language is a valid starting point for other 
efforts to define consent or for developing education and prevention 
programming, and we will provide additional guidance where possible to 
institutions regarding consent.
    However, we do not believe that a definition of consent is needed 
for the administration and enforcement of the Clery Act. Section 
485(f)(1)(F)(i) of the HEA requires schools to include in their

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statistics crimes that are reported, not crimes that are reported and 
proven to have occurred. We reiterate that, for purposes of Clery Act 
reporting, all sex offenses that are reported to a campus security 
authority must be included 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.
    We note the comments suggesting that a definition of ``consent'' 
was needed so institutions do not defer to law enforcement for 
determining whether there was consent. However, as discussed earlier, a 
definition of ``consent'' is not needed for purposes of reporting 
crimes under the Clery Act. If an institution needs to develop a 
definition of ``consent'' for purposes of its proceedings it can 
develop a definition that is appropriate to its administrative 
proceedings based on the definition we discussed at negotiated 
rulemaking sessions and definitions from experts in the field.
    Changes: None.

Dating Violence

    Comments: We received numerous comments related to the definition 
of ``dating violence.'' In particular, the commenters addressed: The 
basis for determining whether the victim and the perpetrator are in a 
social relationship of a romantic or intimate nature; what would be 
considered ``violence'' under this definition; and how to distinguish 
between dating violence and domestic violence.
Social Relationship of a Romantic or Intimate Nature
    Several individuals commented on the proposal in the NPRM that, for 
Clery Act purposes, the determination of whether or not the victim and 
the perpetrator were in a social relationship of a romantic or intimate 
nature would be made based on the reporting party's statement and 
taking into consideration the length of the relationship, the type of 
relationship, and the frequency of interaction between the persons 
involved in the relationship. Some of the commenters expressed support 
for this provision. While supporting this approach, other commenters 
stressed the need for the institution to place significant weight on 
the reporting party's statement and to allow for a balanced and 
flexible determination of the relationship status. However, these 
commenters were also concerned that institutional officials making 
judgments about the length of the relationship, the type of 
relationship, and the frequency of the relationship may omit dating 
relationships where the reporting party describes the relationship as 
``talking,'' ``hanging out,'' ``seeing one another,'' ``hooking up,'' 
and so on. Along these lines, some of the commenters recommended 
expanding the definition of ``dating'' to encompass social or romantic 
relationships that are casual or serious, monogamous or non-monogamous, 
and of long or short duration.
    One commenter raised concerns about using a third party's 
assessment when determining whether the victim and the accused were in 
a social relationship of a romantic or intimate nature. The commenter 
argued that, absent the victim's characterization of the relationship, 
third party reporters would be unable to make an accurate evaluation of 
the relationship and that statistics would therefore be inaccurate. The 
commenter suggested that it would be inappropriate to rely on a third 
party's characterization of a relationship, and that in this situation 
the incident should be included as a ``sex offense'' and not as dating 
violence. Further, the commenter asserted that the lack of State 
standards for determining what constitutes dating violence, combined 
with the need to determine the nature of a relationship, would 
complicate the question of how to categorize certain incidents and 
could lead to inconsistencies in statistics, making comparisons across 
institutions difficult.
Inclusion of Psychological or Emotional Abuse
    Some commenters supported the proposal to define ``dating 
violence'' to include sexual or physical violence or the threat of such 
abuse. These commenters expressed concerns about how institutions would 
operationalize a definition that included more subjective and less 
concrete behavior, such as psychological and emotional abuse. However, 
numerous commenters raised concerns about our proposal not to include 
psychological or emotional abuse in the definition of ``dating 
violence.'' Many of these commenters urged the Department to expand the 
definition of ``dating violence'' to explicitly include emotional and 
psychological abuse. The commenters argued that an expanded definition 
would more accurately reflect the range of victims' experiences of 
abuse and recognize the serious and disruptive impact that these forms 
of violence have. The commenters believed that the reference to the 
threat of sexual or physical abuse did not sufficiently describe these 
forms of violence and that victims would not feel comfortable reporting 
or pressing charges for cases in which they were psychologically or 
emotionally abused if the definition did not explicitly speak to their 
experiences. Along these lines, some commenters believed that not 
including these forms of abuse would exclude significant numbers of 
victimized students from the statistics, and they recommended revising 
the definition to encompass the range of abuse that all victims face.
    Some of the commenters argued that it is inappropriate to exclude 
psychological or emotional abuse from the definition of ``dating 
violence'' simply because they are ``invisible'' forms of violence. In 
particular, they noted that a victim's self-report of sexual or 
physical abuse would be included, even if that abuse is not immediately 
and visibly apparent. They argued that, similarly, a victim's self-
report of emotional or psychological abuse should also be included in 
an institution's statistics.
    Other commenters disagreed with the Department's view that 
including emotional and psychological abuse would be inconsistent with 
the statute. In arguing for a broader interpretation of ``violence'' 
for the purposes of ``dating violence,'' they cited Supreme Court 
Justice Sotomayor's opinion for the Court in U.S. v. Castleman, 134 
S.Ct. 1405 (2014) that, ``whereas the word `violent' or `violence' 
standing alone connotes a substantial degree of force; that is not true 
of `domestic violence.' `Domestic violence' is a term of art 
encompassing acts that one might not characterize as violent in a 
nondomestic context.'' 134 S.Ct. at 1411.
    Some of the commenters were concerned that the proposed regulations 
would set an inadequate starting point for prevention programming by 
not portraying psychological or emotional abuse as valid forms of 
violence on which to focus prevention efforts, even though research 
indicates that emotional or psychological abuse often escalates to 
physical or sexual violence. They argued that it was important to 
recognize psychological and emotional abuse as forms of violence when 
training students to look for, and to intervene when they observe, 
warning signs of behavior that could lead to violence involving force.

[[Page 62757]]

Relationship Between Dating Violence and Domestic Violence
    A few commenters raised concerns about the statement in the 
definition of ``dating violence'' that provides that dating violence 
does not include acts covered under the separate definition of 
``domestic violence.'' Some commenters expressed support for this 
approach. However, one commenter argued that using this approach would 
result in most dating violence incidents being included in the domestic 
violence category. As a result, institutions would report very few 
dating violence crimes. This commenter recommended specifically 
identifying which types of relationship violence would be included 
under dating violence rather than including this ``catch-all'' 
provision.
    One commenter was concerned that defining ``dating violence'' as 
``violence,'' but defining ``domestic violence'' as ``a felony or 
misdemeanor crime of violence'' would create a higher threshold to 
report domestic violence than dating violence and would treat the two 
types of incidents differently based on the status of the parties 
involved. The commenter believed that, from a compliance perspective, 
the only determining factor between recording an incident as dating 
violence or domestic violence should be the relationship of the 
parties, not the nature of the underlying incident. As a result, the 
commenter suggested that institutions should be required to count 
dating violence and domestic violence crimes only where there is a 
felony or misdemeanor crime of violence. The commenter recommended that 
the Department provide additional guidance for institutions about what 
would constitute ``violence'' when the incident is not a felony or 
misdemeanor crime of violence.
    Discussion:
Social Relationship of a Romantic or Intimate Nature
    We appreciate the commenters' support for our proposal that the 
determination of whether or not the victim and the perpetrator were in 
a social relationship of a romantic or intimate nature would be made 
based on the reporting party's statement and taking into consideration 
the length of the relationship, the type of relationship, and the 
frequency of interaction between the persons involved in the 
relationship. Institutions are responsible for determining whether or 
not an incident meets the definition of dating violence, and they must 
consider the reporting party's characterization of the relationship 
when making that determination. We stress that generational or other 
differences in terminology and culture may mean that a reporting party 
may describe a dating relationship using different terms from how an 
institutional official might describe ``dating.'' When the reporting 
party asserts that there was a dating relationship, institutions should 
err on the side of assuming that the victim and the perpetrator were in 
a dating relationship to avoid incorrectly omitting incidents from the 
crime statistics and the crime log. The victim's use of terms such as 
``hanging out'' or ``hooking up'' rather than ``dating,'' or whether or 
not the relationship was ``monogamous'' or ``serious'' should not be 
determinative.
    We disagree with the commenter who was concerned that a third party 
who makes a report would be unable to accurately characterize a 
relationship. Third parties who are reporting an incident of dating 
violence are not required to use specific terms to characterize the 
relationship or to characterize the relationship at all; however, they 
should be asked whether they can characterize the relationship. 
Ultimately, the institution is responsible for determining whether the 
incident is an incident of dating violence. Furthermore, the 
commenter's suggestion to classify all third-party reports as sexual 
assaults is unworkable because dating violence does not always involve 
a sexual assault. Lastly, this commenter's concern that the lack of 
State laws criminalizing dating violence will lead to inaccurate 
statistics is unwarranted because schools must use the definition of 
``dating violence'' in these final regulations when compiling their 
statistics.
Inclusion of Psychological or Emotional Abuse
    Although we fully support the inclusion of emotional and 
psychological abuse in definitions of ``dating violence'' used for 
research, prevention, victim services, or intervention purposes, we are 
not persuaded that they should be included in the definition of 
``dating violence'' for purposes of campus crime reporting. We are 
concerned that such a broad definition of ``dating violence'' would 
include some instances of emotional and verbal abuse that do not rise 
to the level of ``violence'' which is a part of the statutory 
definition of dating violence under VAWA. With respect to the Supreme 
Court's opinion in U.S. v. Castleman, Justice Sotomayor's statement was 
made in a very different context and that case, which interpreted an 
entirely different statute, is in no way controlling here. Furthermore, 
we continue to believe that including emotional and psychological abuse 
in the definition would pose significant challenges in terms of 
compliance and enforcement of these provisions.
Relationship Between Dating Violence and Domestic Violence
    We disagree with the recommendation to remove the provision 
specifying that dating violence does not include acts covered under the 
definition of domestic violence. This provision is needed to prevent 
counting the same incident more than once, because incidents of dating 
violence include a subset of incidents that also meet the definition of 
domestic violence.
    Lastly, in response to the concern that the threshold for an 
incident to meet the definition of ``domestic violence'' is higher than 
for ``dating violence,'' we note that this aspect of the definitions is 
consistent with the definitions in section 40002(a) of the Violence 
Against Women Act of 1994. We also note that an incident that does not 
constitute a felony or misdemeanor crime of violence committed by an 
individual in a relationship specified in the definition of ``domestic 
violence'' nevertheless could be recorded as dating violence. We 
believe that this would still provide valuable information about the 
extent of intimate partner violence at the institution.
    Changes: None.

Domestic Violence

    Comments: The commenters generally supported the proposed 
definition of ``domestic violence.'' However, one commenter believed 
that the definition, as written, would require institutions in some 
States to include incidents between roommates and former roommates in 
their statistics because they would be considered household members 
under the domestic or family laws of those jurisdictions. This 
commenter was concerned about inadvertently capturing situations in 
which two individuals are living together, but are not involved in an 
intimate relationship in the statistics.
    Discussion: We appreciate the commenters' support. With regard to 
the comment about roommates, the final definition of ``domestic 
violence,'' consistent with the proposed definition, requires more than 
just two people living together; rather, the people cohabitating must 
be spouses or have an intimate relationship.
    Changes: None.

[[Page 62758]]

FBI's UCR Program

    Comments: A few commenters expressed support for including this 
definition, agreeing that it added clarity to the regulations.
    Discussion: We appreciate the commenters' support.
    Changes: None.

Hate Crime

    Comments: A few commenters supported the inclusion of a definition 
of ``hate crime'' in Sec.  668.46(a) to improve the clarity of these 
regulations. The commenters also supported the inclusion of gender 
identity and national origin as categories of bias that would serve as 
the basis for identifying a hate crime, as discussed under ``Recording 
hate crimes.''
    Discussion: We appreciate the commenters' support.
    Changes: None.

Hierarchy Rule

    Comments: The commenters generally supported the inclusion of a 
definition of the term ``Hierarchy Rule'' in Sec.  668.46(a). One 
commenter, however, recommended that we clarify in the definition that 
a case of arson is an exception to the rule that when more than one 
offense is committed during a single incident, only the most serious 
offense is counted. The commenter said that arson is always counted.
    Discussion: We appreciate the commenters' support. The commenter is 
correct that there is a general exception to the Hierarchy Rule in the 
Summary Reporting System from the FBI's UCR Program for incidents 
involving arson. When multiple reportable incidents are committed 
during the same incident in which there is also arson, institutions 
must report the most serious criminal offense along with the arson. We 
have not made the treatment of arson explicit in the definition of 
``Hierarchy Rule,'' however, because we believe that it is more 
appropriate to state the general rule in the definitions section and 
clarify how arson must be recorded in Sec.  668.46(c)(9), which 
explains how institutions must apply the Hierarchy Rule. Please see 
``Using the FBI's UCR Program and the Hierarchy Rule'' for additional 
discussion.
    Changes: None.

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

    Comments: Many commenters strongly supported the proposed 
definition of ``programs to prevent dating violence, domestic violence, 
sexual assault, and stalking.'' They believed that the definition would 
promote the development of effective prevention programs that focus on 
changing social norms and campus climates instead of focusing on 
preventing single incidents of abuse from occurring, and it would 
promote programs that do not engage in stereotyping or victim blaming. 
In particular, many commenters expressed support for the language 
requiring that an institution's programs to prevent dating violence, 
domestic violence, sexual assault, and stalking be culturally relevant, 
inclusive of diverse communities and identities, sustainable, 
responsive to community needs, and informed by research or assessed for 
value, effectiveness, or outcome.
    Other commenters recommended several changes to the definition. 
Several commenters recommended requiring that an institution's 
prevention programs be informed by research and assessed for value, 
effectiveness or outcome, rather than allowing one or the other. One 
commenter, although agreeing that it is important for programs to be 
research-based, stressed the need to identify the source of research 
and what would qualify as ``research-based.'' This commenter was also 
concerned that institutions without the funding to support home-grown 
prevention education staff would use ``check-the-box'' training offered 
by third party training and education vendors to meet this requirement.
    One commenter supported the definition but urged the Department to 
explicitly require institutions to include programs focused on the 
lesbian, gay, bisexual, transgender, and queer (LGBTQ) community to 
meet this requirement. The commenter believed that it is important to 
name LGBTQ community programs in this definition because evidence 
suggests that LGBTQ students are frequently targets of sexual violence. 
Several other commenters stressed that prevention programs need to 
address the unique barriers faced by some of the communities within an 
institution's population.
    One commenter stated that computer-based prevention programs can be 
effective, but believed that such training would not satisfy the 
requirement that prevention training be comprehensive, intentional, and 
integrated. Another commenter stated that the regulations should 
specify that a ``one-time'' training does not comply with the 
definition because a comprehensive prevention framework requires an 
ongoing prevention strategy, in partnership with local rape crisis 
centers or State sexual assault coalitions, or both.
    One commenter was concerned that the phrases ``culturally 
relevant'' and ``informed by research or assessed for value, 
effectiveness, or outcome'' were ambiguous, and that it could cost 
institutions significant time and resources to develop programs that 
meet this definition. Several commenters stressed the need for the 
Department to provide information on best practices and further 
guidance about effective programs to support institutions in complying 
with the definition, to help ensure that programming reaches all parts 
of an institution, and to help minimize burden. Other commenters stated 
that the definition exceeded the scope of the statute and would be 
time-consuming and expensive to implement, especially for small 
institutions.
    Discussion: We appreciate the commenters' support, and we believe 
that this definition is consistent with the statute and will serve as a 
strong foundation for institutions that are developing primary 
prevention and awareness programs and ongoing prevention and awareness 
campaigns, as required under Sec.  668.46(j). We agree with the 
commenters that these programs should focus on changing the social 
norms and stereotypes that create conditions in which sexual violence 
occurs, and that these programs must be tailored to the individual 
communities that each school serves to ensure that they are culturally 
relevant and inclusive of, and responsive to, all parts of a school's 
community. As discussed in the NPRM, this definition is designed to 
provide that institutions must tailor their programs to their students' 
and employees' needs (i.e. that the programs must be ``culturally 
relevant''). We note that these programs include ``ongoing prevention 
and awareness campaigns,'' which, as defined in Sec.  
668.46(j)(2)(iii), requires that programs be sustained over time.
    We do not agree with the recommendations to require that these 
programs be both informed by research and assessed for value and that 
we set standards for the research or prohibit certain forms of 
training. During the negotiations, the negotiators discussed the extent 
to which an institution's prevention programs must be based on research 
and what types of research would be acceptable. Ultimately, they agreed 
that ``research'' should be interpreted broadly to include research 
conducted according to scientific standards as well as assessments for 
efficacy carried out by institutions and other organizations. There is 
a relative lack of scientific research showing what makes programs 
designed to prevent dating violence, domestic violence,

[[Page 62759]]

sexual assault, and stalking effective. Adopting the limitations 
suggested by the commenter could significantly limit the types of 
programs that institutions develop, and could preclude the use of 
promising practices that have been assessed for value, effectiveness, 
or outcome but not subjected to a scientific review. We believe that 
this definition will help to guard against institutions using 
approaches and strategies that research has proven to be ineffective 
and that reinforce and perpetuate stereotypes about gender roles and 
behaviors, among other things.
    We do not agree with the recommendations to specify in the 
definition that these programs must include a component focused on 
LGBTQ students. We believe that the requirement that institutions 
consider the needs of their campus communities and be inclusive of 
diverse communities and identities will ensure that the programs 
include LGBTQ students, students with disabilities, minority students, 
and other individuals.
    With respect to the comment asking whether computer-based 
programming could be ``comprehensive, intentional, and integrated'', 
the statute requires institutions to provide these programs and to 
describe them in their annual security reports. However, the Department 
does not have the authority to mandate or prohibit the specific content 
or mode of delivery for these programs or to endorse certain methods of 
delivery (such as computer based programs) as long as the program's 
content meets the definition of ``programs to prevent dating violence, 
domestic violence, sexual assault, and stalking.'' Similarly, 
institutions may use third party training vendors so long as the actual 
programs offered meet the definitions for ``programs to prevent dating 
violence, domestic violence, sexual assault, and stalking.''
    We encourage institutions to draw on the knowledge and experience 
of local rape crisis centers and State sexual assault coalitions when 
developing programs. Over time, we hope to share best practices based 
on research on effective approaches to prevention that institutions may 
use to inform and tailor their prevention programming.
    Although we understand institutions' concerns about the burden 
associated with developing prevention programs, the statute requires 
institutions to develop these programs. In terms of providing programs 
that meet this specific definition, we reiterate that we are committed 
to providing institutions with guidance where possible to clarify terms 
such as ``culturally relevant'' and to minimize the additional costs 
and burden. As discussed previously under ``General,'' the White House 
Task Force to Protect Students from Sexual Assault has developed 
guidance and continues to develop model policies and best practices 
related to preventing sexual assault and intimate partner violence on 
college campuses. We expect that these resources will help schools to 
develop the types of programs that these regulations require, resulting 
in less burden.
    Changes: None.

Sexual Assault

    Comments: The commenters generally supported our proposal to 
include this definition in the regulations. They agreed that specifying 
that, for the purposes of the Clery Act statistics, ``sexual assault'' 
includes rape, fondling, incest, or statutory rape, as those crimes are 
defined in the FBI's UCR program, would clarify the regulations and 
ensure more consistent reporting across institutions.
    Discussion: We appreciate the commenters' support.
    Changes: None.

Stalking

    Comments: The commenters generally supported the proposed 
definition of ``stalking.'' In particular, many of the commenters 
supported defining the term ``course of conduct'' broadly to include 
all of the various forms that stalking can take and the range of 
devices or tactics that perpetrators use, including electronic means. 
These commenters also supported the proposed definition of ``reasonable 
person'' as a reasonable person under similar circumstances and with 
similar identities to the victim.
    One commenter suggested modifying the definition of stalking to 
include consideration of the extent to which the victim indicates that 
the stalking has affected them or interfered with their education.
    Other commenters raised concerns about the proposed definition. 
Some commenters believed that the proposed definition was overly broad. 
One commenter argued that the proposed definition was inconsistent with 
the description of stalking in 18 U.S.C. 2261A, as amended by VAWA, 
which prohibits actions committed with a criminal intent to kill, 
injure, harass, or intimidate. This commenter believed that the final 
regulations should require that to be included as stalking in the 
institution's statistics, there had to be a determination that the 
perpetrator had the intent to cause substantial emotional distress 
rather than requiring that the course of conduct have the effect of 
causing substantial emotional distress. Otherwise, the commenter 
believed that the proposed definition raised First Amendment concerns 
by impermissibly restricting individual speech.
    Lastly, several commenters expressed concern that the proposed 
definition of ``substantial emotional distress'' risked minimizing the 
wide range of responses to stalking and trauma. The commenters believed 
that institutions would overlook clear incidences of stalking in cases 
where the victim is not obviously traumatized or is reacting in a way 
that does not comport with the decision maker's preconceived 
expectations of what a traumatic reaction should look like. Along these 
lines, some commenters believed that the definition was too subjective 
and were concerned that it could make it challenging for institutions 
to investigate a report of stalking.
    Discussion: We appreciate the commenters' support for our proposed 
definition.
    The statutory definition of ``stalking'' in section 40002(a) of the 
Violence Against Women Act of 1994 (which the Clery Act incorporates by 
reference) does not refer to or support taking into account the extent 
to which the stalking interfered with the victim's education.
    We disagree with the commenters who argued that the definition of 
stalking is overly broad, and raises First Amendment concerns. Section 
304 of VAWA amended section 485(f)(6)(A) of the Clery Act to specify 
that the term ``stalking'' has the meaning given that term in section 
40002(a) of the Violence Against Women Act of 1994. Thus, the HEA is 
clear that the definition of ``stalking'' in section 40002(a) of the 
Violence Against Women Act of 1994 should be used for Clery Act 
purposes--not the definition in the criminal code (18 U.S.C. Sec.  
2261A). Section 40002(a) of the Violence Against Women Act of 1994 
defines ``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.'' In these final regulations, we have defined the 
statutory phrase ``course of conduct'' broadly to capture the wide 
range of words, behaviors, and means that perpetrators use to stalk 
victims, and, as a result, cause their victims to fear for their 
personal safety or the safety of others or suffer substantial emotional 
distress. This definition serves as the basis for determining whether 
an institution is in compliance with the Clery Act and does not govern 
or limit an individual's speech or behavior under the First Amendment.

[[Page 62760]]

    We appreciate the commenters' concern that the definition would 
lead institutions to undercount the number of stalking incidents based 
on a misunderstanding of the victim's reaction. We encourage 
institutions to consider the wide range of reactions that a reasonable 
person might have to stalking. Institutions should not exclude a report 
of stalking merely because the victim's reaction (or the description of 
the victim's reaction by a third party) does not match expectations for 
what substantial emotional distress might look like.
    Changes: None.

Sec. 668.46(b) Annual Security Report

Policies Concerning Campus Law Enforcement (Sec.  668.46(b)(4))

    Comments: The commenters generally supported the proposed changes 
in Sec.  668.46(b)(4) that would: Clarify the term ``enforcement 
authority of security personnel;'' require institutions to address in 
the annual security report any memoranda of understanding (MOU) in 
place between campus law enforcement and State and local police 
agencies; and clarify that institutions must have a policy that 
encourages the reporting of crimes to campus law enforcement when the 
victim elects to or is unable to report the incident. They believed 
that these changes would clearly define for students and employees the 
different campus and local law enforcement agencies and the reporting 
options based on Clery geography, improve transparency about any 
relevant MOUs, and empower victims to make their own decisions about 
whether or not to report an incident.
    One commenter requested guidance on the applicability of Sec.  
668.46(b)(4) to smaller institutions and institutions without campus 
law enforcement or campus security personnel.
    Several commenters raised concerns about the phrase ``elects to or 
is unable to make such a report'' in Sec.  668.46(b)(4)(iii). Some 
believed that the language could be confusing without additional 
context and could be incorrectly interpreted to include situations in 
which a victim is unwilling to make a report. These commenters 
recommended clarifying in the final regulations that ``unable to make 
such a report'' means physically or mentally incapacitated and does not 
refer to situations in which someone may be unwilling--i.e., 
psychologically unable--to report because of fear, coercion, or any 
other reason. One commenter asked how this provision would apply in 
situations in which an institution is subject to mandatory reporting of 
crimes against children or individuals with certain disabilities 
occurring on an institution's Clery geography.
    Several commenters urged the Department to mandate, or at a 
minimum, encourage institutions to make clear to students and employees 
what opportunities exist for making confidential reports for inclusion 
in the Clery Act statistics, for filing a title IX complaint with the 
institution, or for obtaining counseling or other services without 
initiating a title IX investigation by the institution or a criminal 
investigation. These commenters explained that providing information 
about the range of options for reporting to campus authorities would 
empower victims to make informed choices and would foster a climate in 
which more victims come forward to report. Along these lines, one 
commenter requested that the Department provide a model or suggestion 
for a reporting regime that institutions could use to satisfy the 
confidential reporting provisions in the Clery Act and title IX.
    Discussion: We appreciate the commenters' support for these 
provisions. All institutions participating in the title IV, HEA 
programs, regardless of size or whether or not they have campus law 
enforcement or security personnel, must address their current policies 
concerning campus law enforcement in their annual security report. This 
information will vary significantly in terms of detail, content, and 
complexity based on the school's particular circumstances. However, all 
institutions must address each of the elements of this provision. If an 
institution does not have a policy for one of these elements because, 
for example, it does not have campus law enforcement staff, the 
institution must provide this explanation.
    With regard to the concerns about the phrase ``elects to or is 
unable to make such a report,'' we note that the negotiators discussed 
this issue extensively and ultimately agreed to include the statutory 
language of ``unable to report,'' in the regulations. The negotiators 
believed that this language captured both physical and mental 
incapacitation. The committee did not intend for ``unable to report'' 
to include situations where a victim is unwilling to report, consistent 
with the commenter's suggestion. We believe that this language 
appropriately strikes a balance between empowering victims to make the 
decision about whether and when to report a crime and encouraging 
members of the campus community to report crimes of which they are 
aware.
    Additionally, as required under Sec.  668.46(c)(2), all crimes that 
occurred on or within an institution's Clery geography that are 
reported to local police or a campus security authority must be 
included in the institution's statistics, regardless of whether an 
institution is subject to mandatory reporting of crimes against 
children or individuals with certain disabilities. The requirement in 
Sec.  668.46(c)(2) is unaffected by Sec.  668.46(b)(4)(iii), which 
addresses an institution's policies on encouraging others to accurately 
report crimes.
    We agree with the commenters that it is important for institutions 
to make clear to students and employees how to report crimes 
confidentially for inclusion in the Clery Act statistics. We note that 
institutions must address policies and procedures for victims or 
witnesses to report crimes on a voluntary, confidential basis for 
inclusion in the annual disclosure of crime statistics. The Clery Act 
does not require institutions to include in their annual security 
report procedures for filing a title IX complaint with the institution 
or how to obtain counseling or other services without initiating a 
title IX investigation by the institution or a criminal investigation. 
The White House Task Force to Protect Students from Sexual Assault has 
developed some materials to support institutions in complying with the 
requirements under the Clery Act and title IX, and we intend to provide 
additional guidance in the Handbook for Campus Safety and Security 
Reporting.
    Changes: None.

Procedures Victims Should Follow If a Crime of Dating Violence, 
Domestic Violence, Sexual Assault, or Stalking Has Occurred (Sec.  
668.46(b)(11)(ii))

    Comments: The commenters expressed support for the requirement that 
institutions inform victims of dating violence, domestic violence, 
sexual assault, or stalking of: 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; their options and 
how to notify law enforcement authorities; and their option to decline 
to notify those authorities. The commenters believed that providing 
this information would dramatically improve the clarity and 
accessibility of criminal reporting processes for students and 
employees, and they strongly urged the Department to retain these 
provisions.
    Some commenters suggested expanding these provisions to require 
institutions to provide additional

[[Page 62761]]

information to victims. One commenter recommended requiring 
institutions to include information about where to obtain a forensic 
examination at no cost when explaining the importance of preserving 
evidence. The commenter further recommended requiring institutions to 
inform victims that completing a forensic examination does not require 
someone to subsequently file a police report.
    Another commenter recommended revising Sec.  668.46(b)(11)(ii)(C) 
to also require institutions to inform victims of how to request 
institutional protective measures and pursue disciplinary sanctions 
against the accused, including filing a title IX complaint with the 
institution.
    One commenter recommended requiring institutions to go beyond 
assisting a victim in notifying law enforcement and to also help them 
while they are working with prosecutors and others in the criminal 
justice system by allowing flexible scheduling for completing papers 
and exams and by providing transportation, leaves of absence, or other 
supports.
    Another commenter recommended modifying Sec.  668.46(b)(11)(ii)(D) 
to further require institutions to disclose the definitions of dating 
violence, domestic violence, sexual assault, stalking, and consent that 
would apply if a victim wished to obtain orders of protection, ``no-
contact'' orders, restraining orders, or similar lawful orders issued 
by a criminal, civil, or tribal court or by the institution.
    Finally, one commenter was unsure about how institutions should 
implement Sec.  668.46(b)(11)(ii)(C)(3) which would require 
institutions to explain to victims that they can decide not to notify 
law enforcement authorities, including on-campus and local police. The 
commenter was particularly concerned about how this would be applied in 
States with mandatory reporting requirements.
    Discussion: We appreciate the commenters' support. We believe that 
the requirement that institutions provide this information will improve 
the clarity and accessibility of criminal reporting processes for 
students and employees.
    Institutions must provide information to victims about the 
importance of preserving evidence that may assist in proving that the 
alleged criminal offense occurred or that may be helpful in obtaining a 
protection order. The statute does not require institutions to provide 
information specifically about where to obtain forensic examinations; 
however, we urge institutions to provide this information when 
stressing the importance of preserving evidence. We encourage 
institutions to make clear in their annual security report that 
completing a forensic examination would not require someone to file a 
police report. While some victims may wish to file a police report 
immediately after a sexual assault, others may wish to file a report 
later or to never file a police report. Regardless, institutions may 
wish to advise students that having a forensic examination would help 
preserve evidence in the case that the victim changes their mind about 
how to proceed. For further discussion on forensic evidence please see 
``Services for victims of dating violence, domestic violence, sexual 
assault, or stalking''.
    With regard to the recommendation to modify Sec.  
668.46(b)(11)(ii)(C) to require institutions to inform victims of how 
to request institutional protective measures, we note that this 
provision is intended to ensure that victims understand that they can 
choose whether or not to notify appropriate law enforcement 
authorities, and that if they choose to notify those authorities, 
campus authorities will help them to do so. We do not believe that 
information about how to request institutional protective measures 
belongs in this provision. However, an institution must provide victims 
of dating violence, domestic violence, sexual assault, and stalking 
with written notification that it will make accommodations and provide 
protective measures for the victim if requested and reasonably 
available under Sec.  668.46(b)(11)(v). As part of this notification, 
an institution must inform victims of how to request those 
accommodations or protective measures. Additionally, under Sec.  
668.46(b)(11)(vi) and (k), an institution must include information 
about its disciplinary procedures for allegations of dating violence, 
domestic violence, sexual assault, and stalking in its annual security 
report. We agree with the commenter that this statement should include 
information for how to file a disciplinary complaint, and we have 
modified Sec.  668.46(k)(1)(i) to make this clear.
    We believe that the provisions in Sec.  668.46(b)(11)(ii) and (v) 
adequately address the commenter's concern about providing 
institutional supports for victims who opt to file a criminal complaint 
after dating violence, domestic violence, sexual assault, or stalking. 
In particular, institutions must provide accommodations related to the 
victim's academic, living, transportation, and working situation if the 
victim requests those accommodations and if they are reasonably 
available. Institutions may provide additional accommodations. We 
strongly encourage institutions to provide these types of 
accommodations to support students while they are involved with the 
criminal justice system, and we encourage them to work with victims to 
identify the best ways to manage those accommodations.
    We disagree with the recommendation to require institutions to 
provide the definitions of dating violence, domestic violence, sexual 
assault, stalking, and consent that would apply for someone to obtain a 
protection order or similar order from a court or the institution. This 
provision is intended to ensure that individuals understand what an 
institution's responsibilities are for enforcing these types of orders. 
Jurisdictions vary widely in the standards that they use when issuing a 
protection order or similar order, and it would not be reasonable to 
expect an institution to identify all of these possible standards in 
its annual security report. Institutions must provide the definitions 
of dating violence, domestic violence, sexual assault, and stalking, as 
defined in Sec.  668.46(a), as well as the definitions of dating 
violence, domestic violence, sexual assault, stalking, and consent (in 
reference to sexual activity) in their jurisdiction in their annual 
security report. We believe that it will be clear in the annual 
security report what definitions would apply if an institution is asked 
to issue a protection order or similar order and that additional 
clarification in Sec.  668.46(b)(11)(ii)(D) is not needed.
    Lastly, these regulations require institutions to explain in their 
annual security report a victim's options for involving law enforcement 
and campus authorities after dating violence, domestic violence, sexual 
assault, or stalking has occurred, including the options to notify 
proper law enforcement authorities, to be assisted by campus 
authorities in notifying law enforcement authorities, and to decline to 
notify law enforcement authorities. This requirement does not conflict 
with an institution's obligation to comply with mandatory reporting 
laws because the regulatory requirement relates only to the victim's 
right not to report, not to the possible legal obligation on the 
institution to report.
    As discussed previously under ``Policies concerning campus law 
enforcement,'' institutions must describe any policies or procedures in 
place for voluntary, confidential reporting of crimes for inclusion in 
the institution's Clery Act statistics. Although this requirement 
applies only to Clery Act crimes, institutions may

[[Page 62762]]

wish to reiterate or reference their policies and procedures that are 
specific to dating violence, domestic violence, sexual assault, and 
stalking to ensure that victims are aware of where they can go to 
report any crime confidentially.
    Changes: We have revised Sec.  668.46(k)(1)(i) to make it explicit 
that institutions must also provide information in the annual security 
report on how to file a disciplinary complaint.

Protecting Victim Confidentiality (Sec.  668.46(b)(11)(iii))

    Comments: The commenters generally supported requiring institutions 
to address, in their annual security report, how they will protect the 
confidentiality of victims and other necessary parties when completing 
publicly available recordkeeping requirements or providing 
accommodations or protective measures to the victim. These commenters 
asserted that protecting victim confidentiality is critical to efforts 
to support a campus climate in which victims feel safe coming forward. 
Additionally, several commenters expressed support for incorporating 
the definition of ``personally identifying information'' in section 
40002(a)(20) of the Violence Against Women Act of 1994 in these 
regulations.
    Several commenters, however, raised some concerns and questions 
about this requirement. Some commenters believed that the Department 
should limit institutions' discretion in determining whether 
maintaining a victim's confidentiality would impair the ability of the 
institution to provide accommodations or protective measures. These 
commenters believed that institutions should have to obtain the 
informed, written, and reasonably time-limited consent of the victim 
before sharing personally identifiable information that they believe to 
be necessary to provide the accommodation or protective measures or, at 
a minimum, notify the victim when it determines that the disclosure of 
that information is needed.
    A few commenters noted that it can be very difficult to provide a 
victim with total confidentiality. One commenter asserted that, in some 
cases, merely including the location of a rape, for instance, as part 
of a timely warning, can inadvertently identify the victim. Another 
commenter noted that some institutions, particularly those with very 
small populations or very limited numbers of reportable crimes, might 
not be able to achieve the goals of the Clery Act without disclosing 
the victim's identity. The commenters requested guidance on how to 
implement the proposed requirements in these circumstances, when it 
might be impossible to fully protect confidentiality.
    Discussion: We appreciate the commenters' support. We believe that 
this provision makes it clear that institutions must protect a victim's 
confidentiality while also recognizing that, in some cases, an 
institution may need to disclose some information about a victim to a 
third party to provide necessary accommodations or protective measures. 
Institutions may disclose only information that is necessary to provide 
the accommodations or protective measures and should carefully consider 
who may have access to this information to minimize the risk to a 
victim's confidentiality. We are not requiring institutions to obtain 
written consent from a victim before providing accommodations or 
protective measures, because we do not want to limit an institution's 
ability to act quickly to protect a victim's safety. However, we 
strongly encourage institutions to inform victims before sharing 
personally identifiable information about the victim that the 
institution believes is necessary to provide an accommodation or 
protective measure.
    As discussed under ``Timely warnings,'' we recognize that in some 
cases, an institution may need to release information that may lead to 
the identification of the victim. We stress that institutions must 
balance the need to provide information to the campus community while 
also protecting the confidentiality of the victim to the maximum extent 
possible.
    Change: None.

Services for Victims of Dating Violence, Domestic Violence, Sexual 
Assault, or Stalking (Sec.  668.46(b)(11)(iv))

    Comments: The commenters expressed support for the proposed 
provision requiring institutions to provide victims of dating violence, 
domestic violence, sexual assault, and stalking with information about 
available services and assistance both on campus and in the community 
that could be helpful and informative. In particular, several 
commenters supported the requirement that institutions provide victims 
with information about visa and immigration services. Some of the 
commenters recommended also requiring institutions to provide student 
victims with financial aid information, noting that this can be 
critical to a student's persistence in higher education.
    Discussion: We appreciate the commenters' support. We also agree 
that it is critical for schools to provide student victims with 
financial aid-related services and information, such as information 
about how to apply for a leave of absence or about options for 
addressing concerns about loan repayment terms and conditions and are 
revising the regulations accordingly. An institution must address in 
its annual security report what services are available. This 
notification should provide information about how a student or employee 
can access these services or request information, such as providing a 
contact person whom student victims may contact to understand their 
options with regard to financial aid.
    We also note that information about health services that are 
available on campus and in the community would include information 
about the presence of, and services provided by, forensic nurses, if 
available. We recommend that institutions provide information to 
victims about forensic nurses who may be available to conduct a 
forensic examination, but we also suggest that they inform victims that 
having a forensic examination does not require them to subsequently 
file a police report. Including this information will improve the 
likelihood that victims will take steps to have evidence preserved in 
case they file criminal charges or request a protection order.
    Additionally, we encourage institutions to reach out to 
organizations that assist victims of dating violence, domestic 
violence, sexual assault, and stalking, such as local rape crisis 
centers and State and territorial coalitions against domestic and 
sexual violence, when developing this part of the annual security 
report. These types of organizations might provide resources and 
services to victims that can complement or supplement the services 
available on campus.
    Changes: We have added ``student financial aid'' to the list of 
services about which institutions must alert victims.

Accommodations and Protective Measures for Victims of Dating Violence, 
Domestic Violence, Sexual Assault, or Stalking (Sec.  668.46(b)(11)(v))

    Comments: The commenters strongly supported proposed Sec.  
668.46(b)(11)(v), which would require institutions to specify in their 
annual security reports that they will provide written notification to 
victims of dating violence, domestic violence, sexual assault, or 
stalking of accommodations available to them and that the institution 
will provide those accommodations if requested by the

[[Page 62763]]

victim, regardless of whether the victim chooses to report the crime to 
the campus public safety office or to local law enforcement. The 
commenters stated that these accommodations are critical for supporting 
victims and for reducing barriers that can lead victims to drop out of 
school or leave a job.
    Some of the commenters recommended strengthening this provision by 
requiring institutions to also disclose the process the victim should 
use to request accommodations. One commenter asked for guidance about 
what schools could require from a student who requests accommodations 
and whether it would be appropriate to expect that the student will 
disclose sufficient information to determine the potential nature of 
the crime and whether or not the student has sought support, such as 
counseling, elsewhere. Other commenters requested additional guidance 
around the meaning of ``options for'' accommodations and what would be 
considered ``reasonably available.'' Additionally, some commenters 
noted that institutions could offer accommodations other than those 
listed in the regulations.
    Discussion: We appreciate the commenters' support. We agree that 
the proposed regulations did not make it sufficiently clear that, in 
notifying victims of dating violence, domestic violence, sexual 
assault, and stalking that they may request accommodations, 
institutions must specify how to request those accommodations. We have 
clarified the regulations to provide that institutions must explain how 
to request accommodations and protective measures. In complying with 
this requirement, we expect institutions to include the name and 
contact information for the individual or office that would be 
responsible for handling these requests so that victims have easy 
access to this information.
    We note that institutions must provide victims with written 
notification of their option to request changes in their academic, 
living, transportation, and working situations, and they must provide 
any accommodations or protective measures that are reasonably available 
once the student has requested them, regardless of whether the student 
has requested or received help from others or whether the student 
provides detailed information about the crime. An accommodation or 
protective measure for a victim must be reasonably available, and what 
is ``reasonably available'' must be determined on a case-by-case basis. 
Institutions are expected to make reasonable efforts to provide 
acceptable accommodations or protective measures, but if a change of 
living or academic situation or protective measure requested by a 
victim is unreasonable, an institution is not required to make the 
change or provide the protective measure. However, institutions are not 
required to list all examples of acceptable accommodations or 
protective measures in the annual security report.
    We stress that institutions may provide information about 
accommodations or protective measures beyond those included in these 
final regulations.
    Changes: We have revised Sec.  668.46(b)(11)(v) to specify that an 
institution must notify victims of dating violence, domestic violence, 
sexual assault, and stalking of how to request changes to academic, 
living, transportation, and working situations and how to request 
protective measures.

Written Explanation of Rights and Options (Sec.  668.46(b)(11)(vii))

    Comments: Several commenters supported providing victims of dating 
violence, domestic violence, sexual assault, or stalking with written 
notification of their rights and options. A few other commenters made 
suggestions for modifying or strengthening this provision. One 
commenter suggested specifying in the regulations that institutions may 
meet their obligations by providing a victim with a copy of the annual 
security report, noting that the annual security report contains all of 
the information required to be in the written notification. Another 
commenter believed that this written notification should be provided to 
all students each year, not just to those who are victims of dating 
violence, domestic violence, sexual assault, or stalking, and that the 
notification should be posted on line. The commenter opined that 
highlighting victims' rights could help to educate the campus community 
and suggested that it could also serve as a deterrent to potential 
assailants by reminding them of the possibility of institutional 
sanctions and criminal prosecution. Lastly, one commenter recommended 
requiring institutions to provide students and employees who are 
accused of perpetrating dating violence, domestic violence, sexual 
assault, or stalking with clear, detailed information about their 
rights and options, particularly with regard to institutional 
disciplinary procedures.
    Discussion: We appreciate the commenters' support for this 
provision.
    We disagree with the commenter who suggested that institutions 
should be considered in compliance with this provision if they provide 
a victim with a copy of the annual security report. Institutions must 
distribute the annual security report to all enrolled students and 
current employees and to all prospective students and employees. 
However, the annual security report contains a great deal of 
information beyond an institution's campus sexual assault policies. We 
believe that Congress intended for institutions to provide a specific 
document to individuals who report that they were victims of dating 
violence, domestic violence, sexual assault, or stalking with 
information that they would specifically want or need to know. This 
targeted information would be more helpful and supportive for victims 
than directing them to the longer, broader annual security report. For 
the general campus community, the statute requires institutions to 
distribute their annual security report. The statute does not support 
requiring institutions to provide the more personalized written 
explanation to the general campus community, although an institution 
may choose to make this information widely available. The different 
types of information the statute requires institutions to provide 
strikes an appropriate balance between ensuring that victims have 
relevant information when they are most likely to need it and ensuring 
that the campus community has general access to information.
    As discussed under ``Availability of Annual Security Report and 
Statistics,'' we do not have the authority to require institutions to 
publish their annual security reports online. However, we encourage 
institutions to do so in order to make the annual security reports as 
accessible to students, employees, and prospective students and 
employees as possible.
    We agree that it is critical for individuals who are accused of 
committing dating violence, domestic violence, sexual assault, or 
stalking to be informed of their rights and options, particularly as 
they relate to the institution's disciplinary policies. Additionally, 
we note that responding to these sorts of allegations, whether in the 
criminal justice system or in an institution's disciplinary procedures 
will likely be very stressful for the accused as well as the accuser. 
Therefore, institutions should consider providing the accused with 
information about existing counseling, health, mental health, legal 
assistance, and financial aid services both within the institution and 
in the community. Although we encourage institutions to provide written 
notification of this sort to an accused student or employee, the

[[Page 62764]]

statute does not refer to or support requiring it.
    Changes: None.

Other Comments Pertaining to Campus Sexual Assault Policies

    Comments: One commenter recommended requiring institutions to 
specify in their annual security reports that victims of sexual assault 
will not be charged with misconduct related to drugs or alcohol. The 
commenter explained that since drugs and alcohol render an individual 
incapable of consenting to a sexual activity, to the extent that an 
institution has such a policy, students and employees would benefit 
from having this explicitly stated in the annual security report.
    Discussion: We agree with the commenter that it would be helpful 
for victims to know an institution's policies for handling charges of 
misconduct that are related to drugs or alcohol in the case of a sexual 
assault, particularly because some victims may not seek support or 
report a sexual assault out of fear that they may be subjected to a 
campus disciplinary proceeding for breaking an institution's code of 
conduct related to drug and alcohol use. We encourage institutions to 
consider whether their disciplinary policies could have a chilling 
effect on students' reporting of sexual assault or participating as 
witnesses where drugs or alcohol are involved, and to make their 
policies in this area clear in the annual security report or through 
other communications with the campus community about their sexual 
assault-related polices. However, although we encourage institutions to 
include this information in their annual security reports, the statute 
does not refer to or require it.
    Changes: None.

Sec. 668.46(c) Crime Statistics

Crimes That Must Be Reported and Disclosed (Sec.  668.46(c)(1))

    Comments: The commenters overwhelmingly supported including the 
requirement for the reporting and disclosure of statistics for dating 
violence, domestic violence, and stalking, explaining that the enhanced 
statistics would elevate the seriousness of these behaviors and would 
provide important information about the extent of these incidents on 
campuses for students, faculty, prospective students and their parents, 
community members, researchers, and school administrators. However, a 
few commenters raised concerns about how these new requirements would 
be implemented. One commenter expressed concern about including dating 
violence as a reportable crime when it is only so designated in one 
State. This commenter believed that including these ``incidents'' 
instead of reporting behaviors that are ``crimes'' under criminal 
statutes dilutes the purpose of the Clery Act.
    We received several comments in response to our question about 
whether the proposed regulations should be modified to capture 
information about the relationship between a perpetrator and a victim 
for some or all of the Clery Act crimes. Some of the commenters urged 
the Department to maintain the approach in the proposed regulations, 
which would not capture detail about the relationship between a 
perpetrator and a victim. These commenters believed that this approach 
protects a victim's right to privacy and the victim's right to choose 
how much detail to include when reporting a crime; would make it 
simpler for institutions to comply with the regulations; and would 
provide clear, easy-to-understand data for students, families, and 
staff. Other commenters, however, recommended that the Department 
require institutions to report and disclose the relationship between 
the offender and the victim. They believed that this detail would 
provide a more complete picture of the nature of crime on college 
campuses and help institutions craft the most appropriate response and 
target their prevention resources effectively.
    We also received several comments about our proposal to replace the 
existing list of forcible and nonforcible sex offenses with rape, 
fondling, incest, and statutory rape to more closely align with the 
FBI's updated definitions and terminology. Numerous commenters strongly 
supported using the definition of ``rape'' in the FBI's Summary 
Reporting System (SRS) because they believed that it is more inclusive 
of the range of behaviors and circumstances that constitute rape. Other 
commenters disagreed with the proposal, arguing that defining sex or 
intimate touching without advance ``consent'' as ``sexual assault'' 
when it would otherwise not be defined as such under State law would go 
beyond the Department's authority. Additionally, some commenters 
requested additional clarification about what types of incidents would 
be considered rape or sexual assault and which would not.
    One commenter recommended that we replace the term ``fondling'' 
with the term ``molestation,'' arguing that this term more accurately 
portrays the gravity of the crime and the seriousness of such an 
allegation.
    Lastly, one commenter recommended combining ``incest'' and 
``statutory rape'' into a single category for the Clery Act statistics, 
opining that the disaggregation of these statistics could create 
confusion about the statistics and that these two crimes are rare on 
college campuses.
    Discussion: We appreciate the commenters' support. In response to 
the commenters who were concerned that these regulations would require 
institutions to maintain statistics on incidents that may not be 
considered ``crimes'' in many jurisdictions, we note that the 
statistical categories are required by section 485(f)(1)(F)(iii) of the 
Clery Act. Further, the HEA specifies that ``dating violence,'' 
``domestic violence,'' ``sexual assault,'' and ``stalking'' are to be 
defined in accordance with section 40002(a) of the Violence Against 
Women Act of 1994. Although we recognize that these incidents may not 
be considered crimes in all jurisdictions, we have designated them as 
``crimes'' for the purposes of the Clery Act. We believe that this 
makes it clear that all incidents that meet the definitions in Sec.  
668.46(a) must be recorded in an institution's statistics, whether or 
not they are crimes in the institution's jurisdiction.
    Although we believe that capturing data about the relationship 
between a victim and a perpetrator in the statistics could be valuable, 
we are not including this requirement in the final regulations given 
the lack of support for, and controversy around, this issue that was 
voiced during the negotiations and the divergent views of the 
commenters. However, we note that institutions may choose to provide 
additional context for the crimes that are included in their 
statistics, so long as they do not disclose names or personally 
identifying information about a victim. Providing this additional 
context could provide a fuller picture of the crimes involving 
individuals who are in a relationship to anyone interested in such 
data. In particular, as discussed under ``Recording stalking,'' 
providing narrative information related to statistics for stalking may 
be valuable.
    We appreciate the commenters' support for our proposal to use the 
FBI's updated definition of ``rape'' under the SRS. With respect to the 
comments objecting to specific aspects of the FBI's definitions, 
section 485(f)(6)(A)(v) of the Clery Act specifies that sex offenses 
are to be reported in accordance with the FBI's UCR program, which 
these regulations reflect. With respect to the commenters who requested 
additional clarification on the types of incidents that would 
constitute ``rape'' or a ``sex

[[Page 62765]]

offense'' we refer to the definitions of these terms in Appendix A.
    Although not raised by the commenters, we have made a slight 
modification to the regulations in Sec.  668.46(c)(1)(ii) to clarify 
that, consistent with section 485(f)(1)(i)(IX) of the HEA, institutions 
must report arrests and referrals for disciplinary action for liquor 
law violations, drug law violations, and illegal weapons possession.
    Changes: We have revised Sec.  668.46(c)(1)(ii) to require 
institutions to report statistics for referrals (in addition to 
arrests) for disciplinary action for liquor law violations, drug law 
violations, and illegal weapons possession.

All Reported Crimes Must Be Recorded (Sec.  668.46(c)(2))

    Comments: We received a few comments on our proposal that all 
crimes reported to a campus security authority be included in an 
institution's crime statistics. One commenter recommended that the 
Department specify that an institution may withhold, or subsequently 
remove, a reported crime from its crime statistics if it finds that the 
report is false or baseless (that is, ``unfounded'').
    Another commenter requested clarification about whether third-party 
reports that are provided anonymously and that cannot be confirmed 
should be included in an institution's statistics. The commenter was 
concerned that requiring these reports could give rise to 
unsubstantiated accusations from those who do not identify themselves 
as victims.
    One commenter was concerned that institutions with numerous campus 
security authorities could receive multiple reports of the same 
incident and that the duplication could result in data that do not 
accurately represent the number of crimes occurring on campus. This 
commenter urged the Department to require institutions to review their 
reports to eliminate duplication.
    One commenter believed that institutions should be able to remove 
statistics for crimes if a jury or coroner has decided that an accused 
individual did not commit the crime. The commenter accused the 
Department of designing the regulations to artificially inflate the 
number of reported crimes on campuses, and they believed that 
maintaining this type of report would not help students accurately 
judge the safety of an institution.
    Finally, one commenter suggested clarifying that an institution 
must include all reports of crimes occurring on or within the 
institution's Clery geography, not just ``all crimes reported.''
    Discussion: Pursuant to section 485(f)(1)(F)(i) of the Clery Act, 
institutions must include all reports of a crime that occurs on or 
within an institution's Clery geography, regardless of who reports the 
crime or whether it is reported anonymously. For example, if an 
institution provides for anonymous reporting through an online 
reporting form, the institution must include in its statistics crimes 
that occurred within the Clery geography that are reported through that 
form. We also note that institutions must record all reports of a 
single crime, not all reports. If after investigating several reports 
of a crime, an institution learns that the reports refer to the same 
incident, the institution would include one report in its statistics 
for the crime that multiple individuals reported. In addition, we do 
not believe it is necessary to require institutions to review their 
reports to eliminate duplication in their statistics, as such a 
requirement is difficult to enforce and institutions have an incentive 
to do this without regulation.
    We agree with the commenter that there is one rare situation--so-
called ``unfounded'' reports--in which it is permissible for an 
institution to omit a reported Clery Act crime from its statistics, and 
we have added language to the regulations to recognize this exemption. 
However, we are concerned that some institutions may be inappropriately 
unfounding crime reports and omitting them from their statistics. To 
address this concern, we have added language to the regulations to 
require an institution to report to the Department and disclose in its 
annual security report statistics the number of crime reports that were 
``unfounded'' and subsequently withheld from its crime statistics 
during each of the three most recent calendar years. This information 
will enable the Department to monitor the extent to which schools are 
designating crime reports as unfounded so that we can provide 
additional guidance about how to properly ``unfound'' a crime report or 
intervene if necessary.
    We remind institutions that they may only exclude a reported crime 
from its upcoming annual security report, or remove a reported crime 
from its previously reported statistics after a full investigation. 
Only sworn or commissioned law enforcement personnel can make a formal 
determination that the report was false or baseless when made and that 
the crime report was therefore ``unfounded.'' Crime reports can be 
properly determined to be false only if the evidence from the complete 
and thorough investigation establishes that the crime reported was not, 
in fact, completed or attempted in any manner. Crime reports can only 
be determined to be baseless if the allegations reported did not meet 
the elements of the offense or were improperly classified as crimes in 
the first place. A case cannot be designated ``unfounded'' if no 
investigation was conducted or the investigation was not completed. Nor 
can it be designated unfounded merely because the investigation failed 
to prove that the crime occurred; this would be an inconclusive or 
unsubstantiated investigation.
    As stated above, only sworn or commissioned law enforcement 
personnel may determine that a crime reported is ``unfounded.'' This 
does not include a district attorney who is sworn or commissioned. A 
campus security authority who is not a sworn or commissioned law 
enforcement authority cannot ``unfound'' a crime report either. The 
recovery of stolen property, the low value of stolen property, the 
refusal of the victim to cooperate with law enforcement or the 
prosecution or the failure to make an arrest does not ``unfound'' a 
crime. The findings of a coroner, court, jury (either grand or petit), 
or prosecutor do not ``unfound'' crime reports of offenses or attempts.
    Consistent with other recordkeeping requirements that pertain to 
the title IV, HEA programs, if a crime was not included in the Clery 
Act statistics because it was ``unfounded,'' the institution must 
maintain accurate documentation of the reported crime and the basis for 
unfounding the crime. This documentation must demonstrate that the 
determination to ``unfound'' the crime was based on the results of the 
law enforcement investigation and evidence. The Department can and does 
request such documentation when evaluating compliance with Federal law.
    We also remind institutions that have a campus security or police 
department that all reported crimes must be included in their crime 
log, as required by Sec.  668.46(f). The crime log must include the 
nature, date, time, and general location of each crime, as well as the 
disposition of the complaint. If a crime report is determined to be 
``unfounded,'' an institution must update the disposition of the 
complaint to ``unfounded'' in the crime log within two business days of 
that determination. It may not delete the report from the crime log.
    We disagree with the commenter that institutions should be able to 
remove

[[Page 62766]]

statistics for crimes where an accused individual is exonerated of 
committing a crime. A verdict that a particular defendant is not guilty 
of a particular charge (or, more technically, that there was not 
sufficient admissible evidence introduced demonstrating beyond a 
reasonable doubt that the accused committed the crime) does not mean 
that the crime did not occur. The Clery Act statistics are not based on 
the identity of the perpetrator. Therefore, all reports of crimes must 
be included in the statistics, except in the rare case that a crime 
report is ``unfounded,'' as discussed earlier in this section.
    Lastly, in response to the recommendation for greater specificity 
about which crimes must be reported, we have clarified that an 
institution must include all reports of Clery Act crimes occurring on 
or within the institution's Clery geography. We believe that this adds 
clarity to the regulations.
    Changes: We have revised Sec.  668.46(c)(2)(iii) to clarify that, 
in rare cases, an institution may remove reports of crimes that have 
been ``unfounded'' and to specify the requirements for unfounding. We 
have added new Sec.  668.46(c)(2)(iii)(A) requiring an institution to 
report to the Department, and to disclose in its annual security 
report, the number of crime reports listed in Sec.  668.46(c)(1) that 
were ``unfounded'' and subsequently withheld from its crime statistics 
pursuant to Sec.  668.46(c)(2)(iii) during each of the three most 
recent calendar years. We have also reserved Sec.  
668.46(c)(2)(iii)(B). Lastly, we have also clarified throughout Sec.  
668.46(c) that an institution must include all reports of Clery Act 
crimes that occurred on or within the institution's Clery geography.

Recording Crimes by Calendar Year (Sec.  668.46(c)(3))

    Comments: The commenters expressed support for this proposed 
provision.
    Discussion: We appreciate the commenters' support.
    Changes: None.

Recording Hate Crimes (Sec.  668.46(c)(4))

    Comments: The commenters generally supported the inclusion of 
``gender identity'' and ``national origin'' as categories of bias for 
the purposes of recording hate crime statistics. One commenter 
recommended collecting and disaggregating information on the actual or 
perceived race, ethnicity, and national origin of victims of hate 
crimes. This commenter believed that this information would improve 
public awareness and knowledge of the prevalence of certain forms of 
abuse, including hate crimes, directed at certain populations, such as 
the Latino/Latina college population.
    Discussion: We appreciate the commenters' support for adding 
``gender identity'' and ``national origin'' as categories of bias and 
for adding a definition of ``hate crime.''
    Section 485(f)(1)(F)(ii) of the Clery Act requires institutions to 
collect and report crimes that are reported to campus security 
authorities or local police agencies ``according to category of 
prejudice.'' Accordingly, institutions collect and report hate crimes 
according to the bias that may have motivated the perpetrator. At this 
time, we do not believe it is necessary to also require institutions to 
collect and report data about, for example, the victim's actual race, 
ethnicity, or national origin.
    Changes: None.

Recording Reports of Stalking (Sec.  668.46(c)(6))

    Comments: We received numerous comments in response to our request 
for feedback about how to count stalking that crosses calendar years, 
how to apply an institution's Clery geography to reports of stalking, 
and how to identify a new and distinct course of conduct involving the 
same perpetrator and victim.
Stalking Across Calendar Years
    Some of the commenters supported the approach in the proposed 
regulations, arguing that it would provide an accurate picture of crime 
on campus for each calendar year. The commenters suggested, however, 
modifying the language to clarify that an institution must include a 
statistic for stalking in each and every year in which a particular 
course of conduct is reported to a local police agency or campus 
security authority. One commenter recommended requiring institutions to 
report stalking in only the first calendar year in which a course of 
conduct was reported, rather than including it each and every year in 
which the conduct continues and is reported. Another commenter 
suggested requiring institutions to disaggregate how many incidents of 
stalking are newly reported in that calendar year and how many are 
continuations from the previous calendar year to avoid a 
misinterpretation of the crime statistics.
Stalking by Location
    The commenters provided varied feedback with regards to recording 
stalking by location. Some of the commenters supported the approach in 
the proposed regulations that would require institutions to include 
stalking at only the first location within the institution's Clery 
geography in which a perpetrator engaged in the stalking course of 
conduct or where a victim first became aware of the stalking. Other 
commenters generally agreed with this approach but urged the Department 
to modify the regulations so that stalking using an institution's 
servers, networks, or other electronic means would be recorded based on 
where the institution's servers or networks are housed. These 
commenters were concerned that, without this change, some instances of 
stalking would not be accounted for in the statistics if the 
perpetrator or the victim is never physically located on or within the 
institution's Clery geography.
    Some of the commenters recommended reporting stalking based only on 
the location of the perpetrator. These commenters argued that using the 
location of the victim would result in institutions including reports 
of stalking where the perpetrator was nowhere near the institution but 
the victim was on campus. They believed that this information would not 
be meaningful because it would not help members of the campus community 
protect themselves while on the school's Clery geography. Along these 
lines, one commenter suggested giving institutions the option to 
exclude reports of stalking if the perpetrator has never been on or 
near the institution's Clery geography if the institution can document 
its reasons for doing so. Other commenters believed that reporting 
based on the location of the perpetrator would be more consistent with 
how other crimes are reported under the Clery Act. The commenter noted, 
for example, that motor vehicle theft is only included in an 
institution's statistics if the perpetrator stole the car from a 
location within the institution's Clery geography, regardless of 
whether the car's owner learned of the theft while within the 
institution's Clery geography.
    Some of the commenters recommended recording stalking based only on 
the location of the victim. These commenters argued that it would be 
much easier for institutions to determine the location of the victim 
than the location of the perpetrator.
    Lastly, a few commenters addressed our discussion in the NPRM about 
how stalking involving more than one institution should be handled. The 
commenters supported our statement that, when two institutions are 
involved, both institutions should include the stalking report in their 
Clery Act statistics. One commenter, however, requested clarification 
about an

[[Page 62767]]

institution's responsibility to notify another institution if the 
stalking originated on the other institution's Clery geography.
Stalking After an ``Official Intervention''
    We received several comments related to when an institution should 
count a report of stalking as a new and distinct crime in its 
statistics. Some of the commenters supported the approach in the NPRM 
under which stalking would be counted separately after an official 
intervention. An official intervention would include any formal or 
informal intervention and those initiated by school officials or a 
court. One commenter generally supported this approach but was 
concerned that an institution might not be aware when an ``official 
intervention'' has occurred if that intervention did not involve the 
institution, such as when a court has issued a no-contact order or a 
restraining order. The commenter recommended revising the regulations 
to specify that an institution would record stalking in these cases as 
a new and distinct crime only to the extent that the institution has 
actual knowledge that an ``official intervention'' occurred.
    Other commenters urged the Department to remove Sec.  
668.46(c)(6)(iii), arguing that counting a new incident of stalking 
after an official intervention would not be consistent with treating 
stalking as a course of conduct. They explained that stalking cases 
often have numerous points of intervention, but that despite those 
interventions, it is still the same pattern or course of conduct, and 
that recording a new statistic after an ``official intervention'' would 
be arbitrary. The commenters believed that requiring that stalking be 
recorded in each and every subsequent year in which the victim reports 
the same stalking course of conduct would appropriately capture the 
extent of stalking without introducing an arbitrary bright line, such 
as an ``official intervention'' or a specific time period between 
stalking behaviors.
    Several commenters recommended encouraging institutions to provide 
narrative information about each incident of stalking in their reports 
to provide context. They believed that this narrative would provide 
more useful information by explaining whether a particular course of 
conduct spanned several years, whether it continued after one or 
multiple interventions, and how many behaviors or actions on the part 
of the perpetrator made up the single course of conduct.
    Discussion: We thank the commenters for their feedback.
Stalking Across Calendar Years
    We appreciate the commenters' support for our proposal to record 
incidents of stalking that cross calendar years. This approach strikes 
a balance by ensuring that stalking is adequately captured in an 
institution's statistics without inflating the number of incidents of 
stalking by counting each behavior in the pattern. In response to 
recommendations from the commenters, we have modified Sec.  
668.46(c)(6)(i) to clarify that an institution must record a report of 
stalking in each and every year in which the stalking course of conduct 
is reported to local police or a campus security authority. An 
institution is not required to follow up with victims each year to 
determine whether the behavior has continued, although institutions are 
not precluded from doing so. If, as a result of following up with a 
stalking victim, the institution learns that the behavior has continued 
into another year, the institution must record the behavior as a new 
report of stalking in that year. Otherwise, institutions must record 
only reports that they receive in each year.
    We appreciate the suggestion that institutions should disaggregate 
statistics for stalking each year based on which incidents were 
continuations for stalking reported in a previous calendar year and 
which were new reports of stalking, but we believe that the approach in 
the final regulations is simpler for institutions to understand and 
implement. However, we encourage institutions to provide additional 
detail, such as whether a report represents a continuation of a 
previous year's report, in their annual security report.
Stalking By Location
    With regard to recording stalking based on the location of either 
the victim or perpetrator, we note that the negotiating committee 
reached consensus on the proposed language, which accounts for the 
location of both the victim and the perpetrator. Given the disagreement 
among the commenters about how to modify these provisions, we have 
decided to adopt the approach approved by the negotiating committee. We 
do not believe that the analogy to motor vehicle theft is appropriate 
because the crime of stalking is not a crime perpetrated against 
property and, thus, it presents different considerations.
    We are not persuaded that we should include stalking based on the 
use of the institution's servers or networks, but where neither the 
victim nor the perpetrator was on or within the institution's Clery 
geography. Including these incidents would be inconsistent with our 
traditional approach in regard to the Clery Act, which uses physical 
location as the determining factor. Moreover, it may not always be 
clear whether a particular message used a particular institution's 
computer servers or networks. Of course, an institution may still be 
able to take action to address a stalking incident that used its 
servers or networks. Many institutions have terms of use associated 
with the use of those networks, and violations of those terms of use 
may subject an individual to disciplinary action.
    Lastly, if stalking occurs on more than one institution's Clery 
geography and is reported to a campus security authority at both 
institutions, then both institutions must include the stalking in their 
statistics. Although the statute does not require an institution that 
learns of stalking occurring on another campus to alert the other 
campus, we strongly encourage an institution in this situation to do 
so.
Stalking After an ``Official Intervention''
    We agree with the commenters who argued that requiring institutions 
to record stalking involving the same victim and perpetrator as a new 
crime after an official intervention would be arbitrary. We also agree 
that it could be difficult for institutions to track stalking incidents 
if the institution does not have actual knowledge of the intervention. 
As a result, we have not included proposed Sec.  668.46(c)(6)(ii) in 
the final regulations. We believe that the requirement that 
institutions record stalking in each and every year in which it is 
reported is an effective, straightforward, and less arbitrary approach 
than including the concept of an ``official intervention.'' We 
encourage institutions to provide narrative information in their annual 
security reports about incidents of stalking to the extent possible to 
provide individuals reading the annual security report with a fuller 
picture of the stalking. In addition to explaining whether a report 
represents stalking that has continued across multiple calendar years, 
institutions may provide additional context for these statistics by 
explaining, for example, whether the stalking continued despite 
interventions by the institution or other parties, whether it lasted 
for a short but intense period or occurred intermittently over several 
months, and whether the perpetrator or the victim was located on or 
within the institution's Clery geography.
    Changes: We have revised Sec.  668.46(c)(6)(i) to clarify that 
stalking that crosses calendar years must be recorded in each and every 
year in

[[Page 62768]]

which the stalking is reported to a campus security authority or local 
police. We have also removed proposed Sec.  668.46(c)(6)(iii), which 
would have required institutions to record a report of stalking as a 
new and distinct crime when the stalking behavior continues after an 
official intervention.

Using the FBI's UCR Program and the Hierarchy Rule (Sec.  668.46(c)(9))

    Comments: We received several comments on our proposal to modify 
the application of the Hierarchy Rule under the FBI's UCR Program, as 
well as comments about how to further update and clarify Sec.  
668.46(c)(9). First, with regard to applying the Hierarchy Rule, some 
of the commenters supported our proposal to create an exception so that 
when both a sex offense and murder are committed in the same incident, 
both crimes would be counted in the institution's statistics. These 
commenters believed that this approach would more accurately reflect 
the full range of incidents involving intimate partner violence. One 
commenter recommended clarifying that the exception would apply only to 
cases involving rape and murder, noting that every rape would involve 
fondling.
    Other commenters, however, disagreed with our proposal to create an 
exception to the Hierarchy Rule, arguing that if the Department 
continues to use the Hierarchy Rule, it should do so in its entirety. 
These commenters recommended having subcategories under the primary 
crimes so that they could report elements of each crime as a subset, 
rather than as a freestanding incident. For example, one commenter 
believed that instead of requiring an institution to record a statistic 
for a murder and for dating violence if a victim was murdered by 
someone the victim was dating, the Department should require an 
institution to record a murder and to include dating violence as an 
element of that murder. The commenter believed that this would reduce 
double-counting and would make the data more transparent.
    Another commenter recommended abandoning the Hierarchy Rule 
altogether, arguing that it detracts from the value and clarity of the 
Clery Act statistics and leads to an underrepresentation of the extent 
of crimes on a given college campus.
    With regards to clarifying the regulation, one commenter noted that 
proposed Sec.  668.46(c)(9) referred to outdated guidance and documents 
issued by the FBI for the UCR program. They recommended replacing 
references to the ``UCR Reporting Handbook'' and the ``UCR Reporting 
Handbook: National Incident-Based Reporting System (NIBRS) EDITION'' 
with references to the ``Criminal Justice Information System (CJIS) 
Division Uniform Crime Reporting (UCR) Program Summary Reporting System 
(SRS) User Manual,'' and the ``Criminal Justice Information System 
(CJIS) Division Uniform Crime Reporting (UCR) Program National 
Incident-Based Reporting System (NIRBRS) User Manual,'' respectively. 
The commenter recommended also updating the references in Appendix A to 
refer to the appropriate User Manuals and to identify the correct 
system source (SRS or NIBRS) for the definitions of rape, fondling, 
statutory rape, and incest.
    One commenter recommended importing the breadth of the UCR program 
into the regulations to provide more clarity and guidance for campus 
security authorities to help them in categorizing crimes, particularly 
at institutions that do not have a campus law enforcement division.
    Discussion: We appreciate the commenters' support. We have decided 
to retain the Hierarchy Rule and the exception to that rule for 
situations involving a sex offense and murder. We believe that the 
Hierarchy Rule provides a useful approach for recording the numbers of 
crimes without overreporting and note that it is used by other crime 
reporting systems. However, in light of the statute's purpose and the 
appropriate public concern about sex offenses on campus, we have 
determined that an exception to ensure that all sex offenses are 
counted is necessary for Clery Act purposes. Without this exception, 
under the Hierarchy Rule, an incident that involves both a rape and a 
murder, for example, would be recorded only as a murder, obscuring the 
fact that the incident also included a sexual assault. We believe that 
Congress intended to capture data about sexual assaults at institutions 
participating in the title IV, HEA programs, and this exception will 
ensure that all cases of sexual assault are included in an 
institution's statistics. Some of the commenters misinterpreted the 
proposed regulations to mean that an institution would have to include 
all of the elements of a sex offense in its statistics. For example, 
they believed that an institution would include both fondling and rape 
in its statistics in any incident involving rape. We intended for the 
exception to the Hierarchy Rule to apply when a rape, fondling, incest, 
or statutory rape occurs in the same incident as murder. As a result, 
we have clarified Sec.  668.46(c)(9)(vii) to make it clear that this 
exception to the Hierarchy Rule would apply only when a sex offense and 
murder are involved in the same incident, and that, in these cases, an 
institution would include statistics for the sex offense and murder, 
rather than including only the murder.
    As discussed under ``Hierarchy Rule,'' we agree with the commenter 
who recommended clarifying in the regulations that, consistent with 
treatment in the FBI's UCR program, an arson that occurs in the same 
incident as other crimes must always be included in an institution's 
statistics. As a result, we have clarified in Sec.  668.46(c)(9)(vi) 
that an institution must always record an arson in its statistics, 
regardless of whether or not it occurs in the same incident as other 
crimes. We believe that including this provision related to arson in 
the same place as the exception for sex offenses will make it easier 
for readers to understand how to apply the Hierarchy Rule.
    We agree with the commenter who argued that the references to the 
FBI's UCR Program may be confusing for institutions that do not have a 
campus law enforcement division that is familiar with the UCR Program. 
We have clarified in Sec.  668.46(c)(9)(i) that an institution must 
compile the crime statistics for murder and nonnegligent manslaughter, 
negligent manslaughter, rape, robbery, aggravated assault, burglary, 
motor vehicle theft, arson, liquor law violations, drug law violations, 
and illegal weapons possession using the definitions of those crimes 
from the ``Summary Reporting System (SRS) User Manual'' from the FBI's 
UCR Program. We also have clarified in Sec.  668.46(c)(9)(ii) that an 
institution must compile the crime statistics for fondling, incest, and 
statutory rape using the definitions of those crimes from the 
``National Incident-Based Reporting System (NIBRS) User Manual'' from 
the FBI's UCR Program. Further, we have specified in Sec.  
668.46(c)(9)(iii) that an institution must compile the crime statistics 
for the hate crimes of larceny-theft, simple assault, intimidation, and 
destruction/damage/vandalism of property using the definitions provided 
in the ``Hate Crime Data Collection Guidelines and Training Manual'' 
from the FBI's UCR Program. We have made corresponding changes to 
Appendix A to reflect the UCR Program sources from which the Clery Act 
regulations draw these definitions. Finally, we have reiterated in 
Sec.  668.46(c)(9)(iv) that an institution must compile the crime 
statistics for dating violence, domestic violence, and stalking using 
the definitions provided in Sec.  668.46(a). We believe that these 
changes, combined

[[Page 62769]]

with our revisions to Appendix A and the updated references to the 
FBI's UCR Program materials will make clear to institutions which 
definitions they must use when classifying reported crimes. We intend 
to include additional guidance on these issues when we revise the 
Handbook for Campus Safety and Security Reporting.
    Changes: We have revised paragraph Sec.  668.46(c)(9) to clarify 
how the definitions in the FBI's UCR Program apply to these 
regulations, updated references to the FBI's UCR Program materials, 
revised the exception to the Hierarchy Rule to clarify that it applies 
in cases where a sex offense and a murder occur during the same 
incident, and that under the Hierarchy Rule an institution must always 
include arson in its statistics.

Statistics From Police Agencies (Sec.  668.46(c)(11))

    Comments: One commenter was concerned that the proposed regulations 
would require an institution to gather and review individual reports 
from municipal police authorities and to determine whether the offenses 
described in the reports meet the definition of ``dating violence,'' 
``domestic violence,'' or ``stalking'' in the regulations, even if they 
do not constitute criminal offenses in the jurisdiction. The commenter 
opined that such a collection and review would be very burdensome for 
institutions and would require significant cooperation by municipal 
police authorities.
    Discussion: Initially, we note that the requirement to collect 
crime statistics from local or State police agencies has been a 
longstanding requirement under the Clery Act. Under Sec.  668.46(c)(11) 
of the regulations, institutions are required to make a good-faith 
effort to obtain the required statistics and may rely on the 
information supplied by a local or State police agency. We would 
consider an institution to have made a good-faith effort to comply with 
this requirement if it provided the definitions in these regulations to 
the local or State police agency and requested that that police agency 
provide statistics for reports that meet those definitions with 
sufficient time for the local or State police agency to gather the 
requested information. As a matter of best practice, we strongly 
recommend that institutions make this request far in advance of the 
October 1 deadline for publishing their annual security reports and 
follow up with the local or State police agency if they do not receive 
a response. As long as an institution can demonstrate that it made a 
good-faith effort to obtain this information, it would be in compliance 
with this requirement.
    Changes: None.

Timely Warnings (Sec.  668.46(e))

    Comments: The commenters strongly supported our proposal to clarify 
that institutions must keep confidential the names and personally 
identifying information of victims when issuing a timely warning. Some 
commenters, however, requested additional guidance for how institutions 
can most effectively comply with this requirement.
    Discussion: We appreciate the commenters' support. Generally, 
institutions must provide timely warnings in response to Clery Act 
crimes that pose a continuing threat to the campus community. These 
timely warnings must be provided in a manner that is timely and that 
will aid in the prevention of similar crimes. Under these final 
regulations, institutions must not disclose the names and personally 
identifying information of victims when issuing a timely warning. 
However, in some cases to provide an effective timely warning, an 
institution may need to provide information from which an individual 
might deduce the identity of the victim. For example, an institution 
may need to disclose in the timely warning that the crime occurred in a 
part of a building where only a few individuals have offices, 
potentially making it possible for members of the campus community to 
identify a victim. Similarly, a perpetrator may have displayed a 
pattern of targeting victims of a certain ethnicity at an institution 
with very few members of that ethnicity in its community, potentially 
making it possible for members of the campus community to identify the 
victim(s). Institutions must examine incidents requiring timely 
warnings on a case-by-case basis to ensure that they have minimized the 
risk of releasing personally identifying information, while also 
balancing the safety of the campus community.
    Changes: None.

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

General

    Comments: One commenter sought clarification regarding the proposed 
language in Sec.  668.46(j)(1) that states that 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 and that the statement 
must include a description of the institution's primary prevention and 
awareness programs for all incoming students and new employees, which 
must include the contents of Sec.  668.46(j)(1)(i)(A)-(F). The 
commenter sought clarification as to whether this language meant simply 
that the description of an institution's primary prevention and 
awareness programs had to contain these elements or if it meant that 
the actual programs, as administered on an institution's campus, had to 
incorporate and address these elements.
    Several commenters asked that the final regulations be modified to 
redefine who would be considered a ``student'' for the purposes of the 
institution's obligation to provide primary prevention and awareness 
programs and ongoing prevention and awareness campaigns. Noting that 
the Department interprets the statute in this regard consistent with 
other Clery Act requirements by requiring institutions to offer 
training to ``enrolled'' students, as the term ``enrolled'' is defined 
in Sec.  668.2, the commenters were concerned about the burden of 
providing prevention training to students who are enrolled only in 
continuing education courses, online students, and students who are 
dually enrolled in high school and community college classes and 
suggested that prevention training should be focused on students who 
are regularly on campus.
    One commenter was concerned that institutions may allow collective 
bargaining agreements to be a barrier to offering primary prevention 
and awareness programs and ongoing prevention and awareness campaigns 
to current employees who belong to a union.
    Another commenter asked the Department to clarify whether an 
institution must require and document that every member of its 
community attend prevention programs and training or whether it is 
mandatory that an institution simply make such programming widely 
available and accessible for members of its community and maintain 
statistical data on the frequency, type, duration, and attendance at 
the training.
    One commenter opined that the final regulations should require 
institutions to work with local and State domestic violence and sexual 
assault coalitions to develop ``best practice'' training models, access 
programs for confidential services for victims, and serve on advisory 
committees that review campus training policies and protocols for 
dealing with sexual violence issues.
    Lastly, one commenter believed that the final regulations should 
require prevention programs to focus on how

[[Page 62770]]

existing technology can be used to help prevent crime. This commenter 
believed that such a focus will ultimately reduce institutional burden 
to report, classify, and respond to reports of dating violence, 
domestic violence, sexual assault, and stalking.
    Discussion: In response to the first comment, the actual prevention 
programs administered on an institution's campus must incorporate and 
address the contents of Sec.  668.46(j)(1)(i)(A)-(F) as well as meet 
the definition of ``programs to prevent dating violence, domestic 
violence, sexual assault, and stalking'' in Sec.  668.46(a) of these 
final regulations. It is important to note that the Department's Clery 
Compliance staff will verify an institution's compliance with both 
Sec. Sec.  668.46(a) and (j) during a Clery Act compliance review.
    We do not agree that we should redefine who would be considered a 
``student'' for the purposes of providing primary prevention and 
awareness programs and ongoing prevention and awareness campaigns. We 
believe that every enrolled student should be offered prevention 
training because anyone can be a victim of dating violence, domestic 
violence, sexual assault, or stalking, not just students regularly on 
campus. As we stated in the preamble to the NPRM, under Sec. Sec.  
668.41 and 668.46, institutions must distribute the annual security 
report to all ``enrolled'' students, as defined in Sec.  668.2. 
Applying that same standard for prevention training makes it clear that 
the same students who must receive the annual security report must also 
be offered the training.
    Without further explanation by the commenter, we cannot see any 
reason why collective bargaining agreements could be a barrier to 
offering prevention training to employees who belong to a union. We 
note that institutions have distributed their annual security reports 
to ``current employees'' under Sec. Sec.  668.41 and 668.46 for many 
years regardless of whether an employee is a member of a union, and we 
expect that these employees will now be offered the new prevention 
training in the same manner as they were offered the training in the 
past.
    In response to the question about whether an institution must 
require mandatory attendance at primary and ongoing prevention programs 
and campaigns, we note that neither the statute nor the regulations 
require that every incoming student, new employee, current student, or 
faculty member, take or attend the training. The regulations require 
only that institutions offer training to all of these specified parties 
and that the training includes the contents of Sec.  
668.46(j)(1)(i)(A)-(F) and meets the definition of ``programs to 
prevent dating violence, domestic violence, sexual assault, and 
stalking''. Institutions must be able to document, however, that they 
have met these regulatory requirements. Although the statute and 
regulations do not require that all students and employees take or 
attend training, we encourage institutions to mandate such training to 
increase its effectiveness. Lastly, the final regulations do not 
require institutions to maintain statistical data on the frequency, 
type, duration, and attendance at the training, although if an 
institution believes that maintaining such data is informative, we 
would encourage such efforts.
    We do not believe that we have the statutory authority to require 
institutions to work with local and State domestic violence and sexual 
assault coalitions to develop policies and programs. The statute 
requires only that institutions provide 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. However, we strongly 
encourage institutions and local and State domestic violence and sexual 
assault coalitions to form such relationships so that victims of sexual 
violence will be better served.
    We disagree that the final regulations should be changed to 
emphasize the use of existing technology in prevention programs. The 
Department cannot require the specific content of an institution's 
prevention training, although we strongly encourage institutions to 
consider including information on existing technology so as to better 
inform their audiences.
    Changes: None.

Definition of ``Applicable Jurisdiction'' (Sec.  668.46(j)(1)(i)(B) and 
(C))

    Comments: Section 668.46(j)(1)(i)(B) and (C) requires an 
institution to include, in its annual security report policy statement 
on prevention programs, the applicable jurisdiction's definitions of 
``dating violence,'' ``domestic violence,'' ``sexual assault,'' 
``stalking,'' and ``consent.'' Several commenters asked for guidance on 
how to comply with Sec.  668.46(j)(1)(i)(B) and (C) when those terms 
are not defined by the local jurisdiction. Several commenters requested 
that the Department clarify in the final regulations whether 
institutions must use the definitions in criminal statutes or whether 
institutions can reference definitions from other sources of law, such 
as domestic abuse protection order requirements, or from State and 
local agencies. These commenters noted that applicable criminal codes 
often do not define these terms, but that reference to the definitions 
in statutes outside the criminal law or from State and local agencies 
are appropriate to provide in this policy statement. One commenter 
requested that the proposed regulations be changed to allow 
institutions to incorporate by reference the definitions in the 
applicable jurisdiction, to avoid confusing language in their 
prevention program materials. This commenter noted that legal 
definitions can be long and complicated, and that allowing 
incorporation by reference would increase the chance that these 
definitions will remain accurate.
    Discussion: If an institution's applicable jurisdiction does not 
define ``dating violence,'' ``domestic violence,'' ``sexual assault,'' 
``stalking,'' and ``consent'' in reference to sexual activity, in its 
criminal code, an institution has several options. An institution must 
include a notification in its annual security report policy statement 
on prevention programs that the institution has determined, based on 
good-faith research, that these terms are not defined in the applicable 
jurisdiction. An institution would need to document its good-faith 
efforts in this regard. In addition, where the applicable jurisdiction 
does not define one or more of these terms in its criminal code, the 
institution could choose to provide definitions of these terms from 
laws other than the criminal code, such as State and local 
administrative definitions. For example, an institution could provide a 
definition officially announced by the State's Attorney General to 
provide relevant information about what constitutes a crime in the 
jurisdiction.
    We do not believe that simply referencing the definition meets the 
requirement that institutions provide the definition of the terms 
``dating violence,'' ``domestic violence,'' ``sexual assault,'' 
``stalking,'' and ``consent'' in reference to sexual activity in the 
applicable jurisdiction. Section 485(f)(8)(B)(i)(I)(bb) and (cc) of the 
Clery Act, as amended by VAWA, require an institution to provide the 
definitions, not a cross-reference or link, to the definition of these 
terms.
    Changes: None.

[[Page 62771]]

Definitions of ``Awareness Programs,'' ``Bystander Intervention,'' 
``Ongoing Prevention and Awareness Campaigns,'' ``Primary Prevention 
Programs,'' and ``Risk Reduction'' (Sec.  668.46(j)(2)(i)-(v))

    Comments: One commenter stated that the definitions of ``awareness 
programs,'' ``bystander intervention,'' ``ongoing prevention and 
awareness campaigns,'' ``primary prevention programs,'' and ``risk 
reduction'' in paragraphs 668.46(j)(2)(i)-(v) assume a context of 
student-on-student sexual assault, making the definitions inadequate in 
cases in which the offender is an employee of the institution. The 
commenter stated that prevention activities should include instruction 
on healthy boundaries, power differentials, and exploitation to address 
situations where the perpetrator is an employee.
    One commenter asked for clarification of the terms ``institutional 
structures and cultural conditions that facilitate violence,'' and 
``positive and healthy behaviors that foster healthy, mutually 
respectful relationships and sexuality,'' in Sec.  668.46(j)(2)(ii) and 
(iv). Another commenter stated that bystander intervention trainings 
should be mandatory for incoming students and that the Department 
should establish basic guidelines and strategies to ensure uniformity 
and quality of bystander intervention training across institutions. 
Lastly, one commenter recommended that the definition of ``risk 
reduction'' in Sec.  668.46(j)(2)(v) be removed from the regulations 
because risk reduction efforts, unless coupled with empowerment 
approaches, leave potential victims with the false impression that 
victimization can be avoided. The commenter believed that this was 
tantamount to victim blaming.
    Discussion: We disagree that the definitions of ``awareness 
programs,'' ``bystander intervention,'' ``ongoing prevention and 
awareness campaigns,'' ``primary prevention programs,'' and ``risk 
reduction'' in Sec.  668.46(j)(2)(i)-(v) assume a context of student-
on-student sexual assault. We believe that the language in the 
definitions is broad and covers situations where the perpetrator is an 
employee and the commenter did not specifically identify any language 
for us to revise.
    In response to the commenter who asked for clarification of certain 
terms in Sec.  668.46(j)(2), we believe that examples of 
``institutional structures and cultural conditions that facilitate 
violence,'' might include the fraternity and sports cultures at some 
institutions. We believe that examples of ``positive and healthy 
behaviors that foster healthy, mutually respectful relationships and 
sexuality,'' might include the promotion of good listening and 
communication skills, moderation in alcohol consumption, and common 
courtesy.
    As for the commenter who suggested that bystander intervention 
training be mandatory for incoming students and that the Department 
should establish basic guidelines and strategies to ensure uniformity 
and quality for that training, the statute does not mandate student or 
employee participation in prevention training, nor does the statute 
authorize the Department to specify what an institution's training must 
contain. The statute and the regulations contain broad guidelines and 
definitions to assist institutions in developing training that takes 
into consideration the characteristics of each campus.
    Lastly, we disagree with the commenter who recommended that the 
definition of ``risk reduction'' in Sec.  668.46(j)(2)(v) be removed. 
Empowering victims is incorporated into the definition of risk 
reduction. The term ``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.
    Changes: None.

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

    Comments: Many commenters supported proposed Sec.  668.46(k) 
regarding institutional disciplinary proceedings. These commenters 
believed that the proposed regulations properly reflected the 
importance of transparent, equitable procedures for complainants and 
accused students, provided clear and concise guidance on the procedures 
an institution must follow to comply with the VAWA requirements, and 
would lead to more accurate reporting of campus crime statistics. 
Several commenters also expressed appreciation for the Department's 
statements in the NPRM that an institution's responsibilities under the 
Clery Act are separate and distinct from those under title IX, and that 
nothing in the proposed regulations alters or changes an institution's 
obligations or duties under title IX as interpreted by OCR.
    Other commenters did not support proposed Sec.  668.46(k). These 
commenters stated that only the criminal justice system is capable of 
handling alleged incidents of dating violence, domestic violence, 
sexual assault, and stalking, not institutions of higher education. 
These commenters also believed that the proposed regulations eliminate 
essential due process protections, and entrust unqualified campus 
employees and students to safeguard the interests of the parties 
involved in adjudicating allegations. Several commenters also stated 
that the proposed regulations would place a considerable compliance 
burden on small institutions and asked the Department to consider 
mitigating that burden in the final regulations.
    One commenter asked the Department to clarify in the final 
regulations that disciplinary procedures apply more broadly than just 
to student disciplinary procedures and suggested adding language 
specifying that the procedures apply to student, employee, and faculty 
discipline systems.
    One commenter asked the Department to clarify whether an 
institution's disciplinary procedures must always comply with Sec.  
668.46(k) or just the procedures related to incidents of dating 
violence, domestic violence, sexual assault, and stalking. Another 
commenter asked that we clarify that there need not be an allegation of 
crime reported to law enforcement for the accused or accuser to receive 
the procedural protections afforded through a campus disciplinary 
proceeding. This commenter suggested that we replace ``allegation of 
dating violence, domestic violence, sexual assault, or stalking'' in 
proposed Sec.  668.46(k)(1)(ii) with ``incident arising from behaviors 
that may also be allegations of the crimes of dating violence, domestic 
violence, sexual assault, or stalking.''
    Finally, one commenter requested that the final regulations affirm 
that a complainant bringing forth a claim of dating violence, domestic 
violence, sexual assault, or stalking cannot be subject to any legal 
investigation of their immigration status because that would discourage 
undocumented students from reporting incidents and participating in a 
disciplinary proceeding.
    Discussion: We appreciate the commenters' support. In response to 
the commenters who objected to institutional disciplinary procedures in 
cases involving dating violence, domestic violence, sexual assault, or 
stalking under the regulations, section 485(f)(8)(B)(iv) of the Clery 
Act clearly requires institutions to have disciplinary procedures in 
place for these incidents. We disagree with the comments that the 
procedures under Sec.  668.46(k) violate due process rights and entrust 
unqualified employees with adjudicatory responsibility. The statute

[[Page 62772]]

and these final regulations require that: an institution's disciplinary 
proceedings be fair, prompt, and impartial to both the accused and the 
accuser; the proceedings provide the same opportunities to both parties 
to have an advisor of their choice present; and the proceedings be 
conducted by officials who receive training on sexual assault issues 
and on how to conduct a proceeding that protects the safety of victims 
and promotes accountability. Thus, these procedures do provide 
significant protections for all parties. We also note that institutions 
are not making determinations of criminal responsibility but are 
determining whether the institution's own rules have been violated. We 
note that there is no basis to suggest that students and employees at 
small institutions should have fewer protections than their 
counterparts at larger institutions.
    We do not agree that the final regulations should be revised to 
clarify that disciplinary procedures apply to student, employee, and 
faculty discipline systems. Section 668.46(k)(1)(i) requires an 
institution's annual security report policy statement addressing 
procedures for institutional disciplinary action in cases of dating 
violence, domestic violence, sexual assault, and stalking to describe 
each type of disciplinary proceeding used by the institution. If an 
institution has a disciplinary proceeding for faculty and staff, the 
institution would be required to describe it in accordance with Sec.  
668.46(k)(1)(i).
    We agree with the commenters who suggested that we clarify which 
incidents trigger a ``disciplinary'' proceeding under Sec.  668.46(k) 
because many institutions have a disciplinary process for incidents not 
involving dating violence, domestic violence, sexual assault, and 
stalking. We have revised the introductory language in Sec.  668.46(k) 
to specify that an institution's policy statement must address 
disciplinary procedures for cases of alleged dating violence, domestic 
violence, sexual assault, and stalking, as defined in Sec.  668.46(a). 
We believe that making this clear up front best clarifies the scope of 
the paragraph.
    Lastly, with respect to the suggestion that Sec.  668.46(k) state 
that a complainant bringing forth a claim of dating violence, domestic 
violence, sexual assault, or stalking is not subject to any legal 
investigation of their immigration status, the Department does not have 
the authority to provide or require such an assurance, though the 
Department reminds institutions of the Clery Act's prohibition against 
retaliation in this regard. Specifically, institutions should be aware 
that threatening an individual with deportation or invoking an 
individual's immigration status in an attempt to intimidate or deter 
the individual from filing or participating in a complaint of dating 
violence, domestic violence, sexual assault, or stalking would violate 
the Clery Act's protection against retaliation as reflected in Sec.  
668.46(m).
    Changes: We have revised the introductory language in Sec.  
668.46(k) to specify that an institution's policy statement must 
address disciplinary procedures for cases of alleged dating violence, 
domestic violence, sexual assault, and stalking, as defined in Sec.  
668.46(a).

Standard of Evidence (Sec.  668.46(k)(1)(ii))

    Comments: Proposed Sec.  668.46(k)(1)(ii) requires an institution 
to describe in its annual security report policy statement 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. Several commenters supported 
requiring institutions to use the preponderance of evidence standard 
for institutional disciplinary proceedings under the Clery Act to be 
consistent with the standard of evidence required to comply with title 
IX. The commenters believed that requiring the use of the preponderance 
of evidence standard would reduce confusion and would eliminate 
disputes over whether a criminal standard of proof should be applied. 
One commenter felt that using any other standard of proof, such as 
``clear and convincing'' or ``beyond a reasonable doubt'' would send a 
message that one student's presence at the institution is more valued 
than the other's. Other commenters did not believe the preponderance of 
evidence standard should be specified in the regulations because they 
asserted that Congress considered requiring the use of the 
preponderance of evidence standard and rejected it when debating the 
VAWA amendments to the Clery Act. One commenter stated that the ``clear 
and convincing'' standard of evidence should be used because this 
standard better safeguards due process.
    Discussion: We disagree that final Sec.  668.46(k)(1)(ii) should 
require that to comply with the Clery Act, institutions use the 
preponderance of evidence standard or any other specific standard when 
conducting a disciplinary proceeding. Unlike title IX, the Clery Act 
only requires that an institution describe the standard of evidence it 
will use in a disciplinary proceeding. A recipient can comply with both 
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.
    Changes: None.

Sanctions Resulting From a Disciplinary Proceeding (Sec.  
668.46(k)(1)(iii))

    Comments: Several commenters supported the requirement in Sec.  
668.46(k)(1)(iii) that institutions list 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 in its annual 
security report policy statement. These commenters stated that some 
institutions use sanctions such as suspensions for a summer semester 
only or expulsions issued after the perpetrator has graduated which 
minimize the perpetrator's accountability. These commenters believed 
that listing all possible sanctions would make the imposition of 
inappropriate sanctions untenable.
    Other commenters did not support listing all possible sanctions 
because they believe that such a listing would limit an institution's 
ability to effectively adjudicate these cases on an individual basis, 
hamper the institution's ability to strengthen sanctions, and limit the 
institution's ability to be innovative in imposing sanctions. Other 
commenters requested that this requirement be phased in to give 
institutions additional time to review current practices relating to 
sanctions and so that institutions are not forced to list hypothetical 
penalties to address situations of dating violence, domestic violence, 
sexual assault, and stalking that they have not imposed before.
    Discussion: We appreciate the commenters' support for Sec.  
668.46(k)(1)(iii), which requires institutions to list 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 in 
its annual security report policy statement.
    We have not been persuaded to change this requirement. We believe 
that listing all possible sanctions that an institution may impose 
following the results of a disciplinary proceeding in cases of dating 
violence, domestic violence, sexual assault, and stalking will deter 
institutions from listing (and subsequently imposing) inappropriately

[[Page 62773]]

light sanctions. As noted in the NPRM, Sec.  668.46(k)(1)(iii) does not 
prohibit an institution from using a sanction not listed in its most 
recently issued annual security report, provided the institution's list 
is updated in its next annual security report. We do not believe that 
phasing in this requirement is appropriate. The regulations are 
effective on July 1, 2015, which will give institutions at least seven 
months to implement the requirement to list all possible sanctions that 
an institution may impose following the results of a disciplinary 
proceeding.
    Changes: None.

Training for Officials Who Conduct Disciplinary Proceedings (Sec.  
668.46(k)(2)(ii))

    Comments: Several commenters supported the requirement that an 
institution's disciplinary proceedings 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. The commenters believed that 
proper training will minimize reliance on stereotypes about victims' 
behavior and will ensure that officials are educated on the effects of 
trauma.
    Other commenters did not support the training requirement because 
they considered it to be an unfunded mandate. One commenter stated that 
the training requirement goes beyond congressional intent. Another 
commenter believed that the costs to obtain the training would have a 
negative impact on small institutions and asked the Department to 
provide a waiver of the annual training requirement for small 
institutions. Alternatively, the commenter asked that the Department 
develop and provide the required training at no cost to institutions 
through a Webinar or computer-assisted modular training.
    Discussion: The Department appreciates the support of commenters 
and agrees that ensuring that officials are properly trained will 
greatly assist in protecting the safety of victims and in promoting 
accountability.
    We disagree with the commenter who asserted that the training 
requirement goes beyond congressional intent. The training requirement 
in Sec.  668.46(k)(2)(ii) reflects what is required by section 
485(f)(8)(B)(iv)(I)(bb) of the Clery Act as amended by VAWA. We 
acknowledge that there will be costs associated with the training 
requirement and we urge institutions to work with rape crisis centers 
and State sexual assault coalitions to develop training that addresses 
the needs and environments on small campuses. Lastly, we cannot waive 
this requirement for small institutions or provide the training as 
requested. We note that all title IV institutions are already required 
to ensure that their officials are trained and are knowledgeable in 
areas such as Federal student financial aid regulations. Congress added 
this new training requirement to protect students. We note that these 
final regulations are effective July 1, 2015, which will give 
institutions ample time to implement this requirement in a compliant 
and cost-effective manner.
    Changes: None.

Advisor of Choice (Sec.  668.46(k)(2)(iii) and (iv))

    Comments: We received many comments on proposed Sec.  
668.46(k)(2)(iii) and (iv). Proposed Sec.  668.46(k)(2)(iii) would 
require that an institution's disciplinary proceeding provide the 
accuser and the accused with the same opportunities to have others 
present, including the opportunity to be accompanied to any related 
meeting or proceeding by the advisor of their choice. Proposed Sec.  
668.46(k)(2)(iv) would prohibit the institution from limiting the 
choice of advisor, or an advisor's presence for either the accuser or 
the accused in any meeting or institutional disciplinary proceeding, 
although the institution may establish restrictions on an advisor's 
participation as long as the restrictions apply equally to both 
parties.
    Many commenters supported proposed Sec.  668.46(k)(2)(iii) and (iv) 
but asked that the regulations allow institutions to remove or dismiss 
advisors who are disruptive or who do not abide by the restrictions on 
their participation to preserve the decorum, civility, and integrity of 
the proceeding. Other commenters asked that the regulations be revised 
to detail the extent to which an advisor can participate in a 
disciplinary proceeding or the type of restrictions an institution can 
place on an advisor's participation in the proceeding, such as 
prohibiting an advisor to speak or to address the disciplinary 
tribunal, or question witnesses, to ensure an efficient and fair 
process. One commenter asked that the regulations be revised to allow 
an institution to define a pool of individuals, including members of 
the campus community, who may serve as an advisor. Another commenter 
asked that the regulations require that an advisor be willing and able 
to attend disciplinary proceedings in person as scheduled by the 
institution and that an advisor can be present in meetings or 
disciplinary proceedings only when the advisee is present to ensure 
that disciplinary proceedings are not unnecessarily delayed. One 
commenter stated that the regulations should allow an advisor only at 
an initial meeting or documentation review of a disciplinary 
proceeding. Another commenter believed that allowing an advisor to be 
present at ``any related meeting or proceeding'' would cause 
unreasonable delays if an institution was forced to schedule meetings 
at an advisor's convenience. One commenter asked that the regulations 
prohibit an advisor from acting as a proxy for either the accused or 
the accuser so as to not compromise their privacy rights. One commenter 
asked that Sec.  668.46(k)(2)(iv) be revised to prohibit immigration 
agents from serving in a disciplinary proceeding as an advisor. This 
commenter was concerned that if, for example, the accused had an 
immigration agent as an advisor and the accuser was not a U.S. citizen, 
the threat of an immigration enforcement action would pose a 
significant barrier to participation in a disciplinary proceeding for 
the accuser.
    Discussion: We do not believe that any changes to the regulations 
are necessary. Institutions may restrict an advisor's role, such as 
prohibiting the advisor from speaking during the proceeding, addressing 
the disciplinary tribunal, or questioning witnesses. An institution may 
remove or dismiss advisors who become disruptive or who do not abide by 
the restrictions on their participation. An institution may also form a 
pool of individuals, including members of the campus community, who may 
serve as advisors as long as the choice of an advisor by the accused or 
the accuser is not limited to such a pool. We believe that regulating 
an institution's actions in these areas would restrict their 
flexibility to protect the interests of all parties.
    We do not believe that the regulations should specify that an 
advisor must attend disciplinary proceedings in person. Section 
668.46(k)(2)(iii) does not require an advisor to be present but merely 
requires that each party have the same opportunity to have an advisor 
present. An institution would not need to cancel or delay a meeting 
simply because an advisor could not be present, so long as the 
institution gave proper notice of the meeting under Sec.  
668.46(k)(3)(i)(B)(2); however we encourage institutions to consider 
reasonable requests to reschedule. We also do not believe that the 
final regulations should specify that an

[[Page 62774]]

advisor cannot be present in meetings or disciplinary proceedings 
unless the advisee is present. An institution is not required to permit 
an advisor to attend without the advisee but may find that permitting 
an advisor to attend with the advisee's agreement will make it easier 
to arrange procedural meetings.
    We do not believe that permitting an institution to limit an 
advisor to attend only an initial meeting or documentation review of a 
disciplinary proceeding is supported by the statute. Section 
485(f)(8)(B)(iv)(II) of the Clery Act provides that the accuser and the 
accused are entitled to the opportunity to be accompanied ``to any 
related meeting or proceeding'' by an advisor of their choice.
    We do not believe that the regulations need to prohibit an advisor 
from acting as a proxy for either the accused or the accuser in the 
interest of protecting the parties' privacy. Assuming an institution 
allowed an advisor to act as a proxy, if the accused or accuser 
authorized their advisor to serve as a proxy and consented to any 
disclosures of their records to their advisor, this would alleviate any 
privacy concerns.
    Lastly, we believe that including in the final regulations a 
general prohibition on immigration agents serving as an advisor to the 
accused or the accuser in a disciplinary proceeding is not supported by 
the statute. As stated above, section 485(f)(8)(B)(iv)(II) of the Clery 
Act, as amended by VAWA, provides that the accuser and the accused are 
entitled to the opportunity to be accompanied to any related meeting or 
proceeding by an advisor of their choice. However, institutions should 
be aware that allowing an immigration agent to serve as an advisor in 
order to intimidate or deter the accused or the accuser from 
participating in a disciplinary proceeding to resolve an incident of 
dating violence, domestic violence, sexual assault, or stalking would 
violate the Clery Act's protection against retaliation as reflected in 
Sec.  668.46(m).
    Changes: None.

Attorney as Advisor of Choice (Sec. Sec.  668.46(k)(2)(iii) and (iv)

    Comments: Many commenters supported the Department's interpretation 
of the statutory language in section 485(f)(8)(B)(iv)(II) of the Clery 
Act, as amended by VAWA, that the accuser or the accused may choose to 
have an attorney act as their advisor in an institution's disciplinary 
proceeding. The commenters believed that this interpretation protects 
the rights of both parties and the integrity of the proceedings. 
Several commenters stated that the final regulations should detail the 
type of restrictions an institution may impose on an attorney advisor; 
other commenters believed that no restrictions on an attorney should be 
permitted.
    Other commenters did not support allowing attorneys to act as 
advisors and stated that such an interpretation goes beyond the 
statutory intent. These commenters stated that section 
485(f)(8)(B)(iv)(II) of the Clery Act provides only ``the opportunity'' 
for the accused or the accuser to have an advisor present during 
meetings or proceedings. Commenters believed that allowing attorneys to 
participate as advisors in an institution's disciplinary proceeding 
will create inequities in the process if one party has an attorney 
advisor and the other party does not and the presence of attorneys will 
make the campus disciplinary proceeding more adversarial and more like 
a courtroom than an administrative proceeding. One commenter believed 
that allowing attorney advisors would create a chilling effect for 
complainants and discourage them from reporting or going forward with a 
disciplinary process to resolve that complaint. Another commenter 
believed that allowing attorney advisors would force schools to hire 
court reporters and have legal representation present, which would 
drain resources. Another commenter believed that allowing attorneys to 
act as advisors would compromise the privacy rights of individuals 
involved in the process. One commenter asked that the final regulations 
require institutions to provide legal representation in any meeting or 
disciplinary proceeding in which the accused or the accuser has legal 
representation but the other party does not. One commenter stated that 
the proposed regulations incorrectly suggest that State laws providing 
students with a right to counsel in disciplinary hearings, like North 
Carolina's Student and Administration Equality Act, are inconsistent 
with VAWA and requested that the language be amended in the final rule.
    Discussion: We are not persuaded that any changes are necessary to 
the regulations with regard to allowing attorneys to participate in an 
institution's disciplinary proceeding as advisors. Section 
485(f)(8)(B)(iv)(II) of the Clery Act clearly and unambiguously 
supports the right of the accused and the accuser to be accompanied to 
any meeting or proceeding by ``an advisor of their choice,'' which 
includes an attorney. Section 668.46(k)(2)(iv) allows an institution to 
establish restrictions on an advisor's participation in a disciplinary 
proceeding. As stated earlier in the preamble, we believe that 
specifying what restrictions are appropriate or removing the ability of 
an institution to restrict an advisor's participation would 
unnecessarily limit an institution's flexibility to provide an 
equitable and appropriate disciplinary proceeding. Nothing in the 
regulations requires institutions to hire court reporters or have their 
own legal representation. Nor do we believe that allowing attorneys to 
act as advisors would compromise the privacy rights of individuals 
involved in the process, as explained previously. We do not believe 
that the statute permits us to require institutions to provide legal 
representation in any meeting or disciplinary proceeding in which the 
accused or the accuser has legal representation but the other party 
does not. Absent clear and unambiguous statutory authority, we would 
not impose such a burden on institutions. We would note, however, that 
the statute does require institutions to provide written notification 
to students and employees about legal assistance available for victims, 
both on-campus and in the community. We encourage institutions to also 
provide information about available legal assistance to the accused. We 
also note that the ability of the institution to restrict the role of 
all advisors means that all advisors are equal and that the presence of 
an attorney should not have a chilling effect on complainants. Before a 
proceeding is scheduled, schools should inform the parties of any 
limitations on the advisor's role so that both parties understand and 
respect these limitations. Lastly, we do not believe that the proposed 
regulations incorrectly suggested that State laws providing students 
with a right to counsel in disciplinary hearings are inconsistent with 
VAWA. The regulations do not require an institution to impose 
restrictions on the advisor's participation, they merely permit the 
institution to do so. Where State law prohibits such a restriction, 
State law would trump any institutional policy intended to restrict the 
advisor's participation that would otherwise be permissible under these 
regulations.
    Changes: None.

Simultaneous Notification (Sec.  668.46(k)(2)(v))

    Comments: Several commenters supported proposed Sec.  
668.46(k)(2)(v) which would 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 
dating violence, domestic violence,

[[Page 62775]]

sexual assault, or stalking; the institution's procedures for appeal of 
the result; any change to the result; and when the result becomes 
final. The commenters stated that having simultaneous notification will 
eliminate the possibility of unannounced, secret proceedings at which 
testimony or evidence adverse to the accused is gathered without his or 
her knowledge. Another commenter asked the Department to issue public 
guidance that incorporates the preamble discussion in the NPRM on what 
constitutes ``written simultaneous notification''.
    Discussion: We appreciate the support of commenters. We also intend 
to include guidance on what constitutes ``written simultaneous 
notification'' in the updated Handbook for Campus Safety and Security 
Reporting.
    Changes: None.

Definition of ``Prompt, Fair, and Impartial'' (Sec. Sec.  
668.46(k)(3)(i))

    Comments: One commenter argued that the requirement in Sec.  
668.46(k)(3)(i)(B)(1) that an institution's disciplinary proceeding 
must be ``transparent'' to the accuser and the accused does not have 
legal meaning, and creates ambiguities and unrealistic expectations.
    One commenter believed that the requirement for timely notice of 
meetings in Sec.  668.46(k)(3)(i)(B)(2) should be revised to specify 
that the timely notice applies only to meetings in which both the 
accused and the accuser will be present. Several commenters believed 
the timely notice provision interferes with an institution's ability to 
contact the accused student upon receipt of an incident report to 
schedule a meeting and, if necessary, take immediate action such as 
imposing an interim suspension, relocation from a dormitory, or removal 
from class. The commenters considered this a safety issue for both the 
accuser and the community.
    Several commenters were concerned that the requirement in Sec.  
668.46(k)(3)(i)(C) that an institution's disciplinary proceeding be 
conducted by officials who do not have a conflict of interest or bias 
for or against the accuser or the accused does not address situations 
in which inappropriately partial or ideologically inspired people 
dominate the pool of available participants in a proceeding. This 
commenter suggested that the accused or the accuser be afforded an 
appeal or opportunity to object if a member of the adjudicating body is 
biased. Several commenters suggested that the final regulations should 
prohibit adjudicating officials with responsibility for administering 
informal resolution procedures from having any involvement in, or 
contact with, a formal disciplinary board that has responsibility for 
resolving the same complaint, to reduce the appearance that officials 
are trying to influence the outcome of a proceeding in favor of either 
party.
    Lastly, one commenter recommended that the final regulations should 
provide that the accused or the accuser have the right to appeal the 
results of an institutional disciplinary proceeding, for an 
institution's proceeding to be considered prompt, fair, and impartial. 
This commenter stated that appeals are part of any well-functioning 
disciplinary process and ensure that any unfairness in the process is 
addressed by university leadership.
    Discussion: We do not believe it is necessary to clarify the term 
``transparent.'' With respect to a disciplinary proceeding, the term 
``transparent'' means a disciplinary proceeding that lacks hidden 
agendas and conditions, makes appropriate information available to each 
party, and is fair and clear to all participants.
    We do not believe that the requirement for timely notice of 
meetings in Sec.  668.46(k)(3)(i)(B)(2) should be modified to apply to 
only meetings in which both the accused and the accuser will be 
present. We believe that an institution should provide timely notice 
for meetings at which only the accused or the accuser will be present 
so that the parties are aware of meetings before they occur. 
Furthermore, we do not believe that the timely notice provision 
compromises an institution's ability to schedule a meeting with an 
accused student after receiving an incident report. In this context, 
``timely'' just means that the institution must notify the accuser of 
this meeting as quickly as possible, but it does not mean that the 
institution must unreasonably delay responsive action to provide 
advance notice to the accuser.
    We are not persuaded that we should revise the requirement in Sec.  
668.46(k)(3)(i)(C) that an institution's disciplinary proceeding be 
conducted by officials who do not have a conflict of interest or bias 
for or against the accuser or the accused to be considered prompt, 
fair, and impartial. With respect to the specific scenarios described 
by the commenters where they believe certain institutions' proceedings 
are being conducted by officials with bias, without more facts we 
cannot declare here that such scenarios present a conflict of interest, 
but if they did, Sec.  668.46(k)(3)(i)(C) would prohibit this practice. 
The Clery compliance staff will monitor the presence of any conflicts 
of interest and we may revisit these regulations if we identify 
significant problems in this area.
    Lastly, we disagree with the commenters who recommended that the 
final regulations should provide the accused or the accuser with the 
right to appeal the results of an institutional disciplinary 
proceeding. We do not believe we have the statutory authority to 
require institutions to provide an appeal process.
    Changes: None.

Definition of ``Proceeding'' (Sec.  668.46(k)(3)(iii))

    Comments: One commenter recommended that the definition of 
``proceeding'' should expressly exclude communications between 
complainants and officials regarding interim protective measures for 
the complainant's protection. Another commenter suggested changing the 
definition to clarify that ``proceeding'' includes employee and faculty 
disciplinary proceedings as well as student disciplinary proceedings.
    Discussion: We agree that the definition of ``proceeding'' should 
be modified to not include communications regarding interim protective 
measures. In many cases protective measures may be necessary for the 
protection of the accuser and treating these communications as 
``proceedings'' could lessen that protection. We do not agree that 
changing the definition of ``proceeding'' to reflect employee and 
faculty disciplinary proceedings is necessary. Nothing in the 
definition limits a proceeding to only one involving students, and an 
institution is already required to describe each type of disciplinary 
proceeding used by the institution in its annual security report policy 
statement in accordance with Sec.  668.46(k)(1)(i).
    Changes: We have revised the definition of ``proceeding'' by adding 
that a ``proceeding'' does not include communications and meetings 
between officials and victims concerning accommodations or protective 
measures to be provided to a victim.

Definition of ``Result'' (Sec.  668.46(k)(3)(iv))

    Comments: Several commenters believed that the Department's 
reasoning in the NPRM for defining ``result'' to include the rationale 
for the result, that the accused or the accuser could use the result as 
the basis for an appeal, was flawed and not supported

[[Page 62776]]

by statute. The commenters requested that the Department change the 
definition of ``result'' to require institutions to provide the 
rationale for the result to the accuser if it does so for the accused.
    Discussion: We do not agree that the reasoning in the NPRM for 
defining ``result'' to include the rationale for the result is flawed. 
That either the accused or the accuser could use the result for the 
basis of an appeal is common sense. We also do not agree that the 
definition of ``result'' needs to be modified because Sec.  
668.46(k)(2)(v)(A) requires an institution to simultaneously notify 
both the accuser and the accused of the result of any institutional 
disciplinary proceeding.
    Changes: None.

Sec.  668.46(m) Prohibition on Retaliation

    Comments: One commenter expressed support for incorporating section 
485(f)(17) of the Clery Act into the regulations.
    Discussion: We appreciate the commenter's support.
    Changes: None.

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 
Integrated Postsecondary Education Data System (IPEDS) data, a total of 
7,508 institutions were participating in title IV programs in 2012.\2\ 
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.
---------------------------------------------------------------------------

    \2\ U.S. Department of Education. Institute of Education 
Sciences, National Center for Education Statistics. http://nces.ed.gov/ipeds/datacenter/InstitutionList.aspx.
---------------------------------------------------------------------------

    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 final 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 on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible. The Office of Information 
and Regulatory Affairs of OMB has emphasized that these techniques may 
include ``identifying changing future compliance costs that might 
result from technological innovation or anticipated behavioral 
changes.''
    We are issuing these final regulations only on a reasoned 
determination that their benefits 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 final regulations are consistent with 
the principles in Executive Order 13563.
    We also have determined that this regulatory action does not unduly 
interfere with State, local, or tribal governments in the exercise of 
their governmental functions.
    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 six 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 and 
provide crime prevention and safety information to students and 
employees.
    The section titled ``Summary of Changes from the NPRM'' summarizes 
the most important revisions the Department made in these final 
regulations since the NPRM. These changes were informed by the 
Department's consideration of over approximately 2,200 parties who 
submitted comments on the proposed regulations, along with 
approximately 3,600 individuals who submitted a petition expressing 
support for comments submitted by the American Association of 
University Women. The changes are intended to clarify the reporting of 
stalking across calendar years, remove the requirement by institutions 
to report stalking as a new and distinct crime after an official 
intervention, and clarify cases in which an institution may remove from 
its crime statistics reports of crimes that have been unfounded.
    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 regulations. 
First, we expect students and prospective students and employees and 
prospective employees to be better

[[Page 62777]]

informed and better able to make choices in regards to higher education 
attendance and employment because the 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 
institutional 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 features of the regulations, including 
definitions of ``outcomes,'' ``initial and final determinations,'' 
``resolution,'' ``dating violence,'' ``employees,'' and ``consent.''
    Finally, the ``Final Regulatory Flexibility Analysis'' considers 
issues relevant to small businesses and nonprofit institutions.
    Elsewhere in this section under Paperwork Reduction Act of 1995, we 
identify and explain burdens specifically associated with information 
collection requirements.

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 VAWA provisions 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 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.
    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 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.

Summary of Changes From the NPRM

Reporting Stalking Crossing Calendar Years

    The Department modified Sec.  668.46(c)(6)(i) to clarify that 
stalking which crosses calendar years should be recorded in each and 
every year in which the stalking is reported to a campus security 
authority or local police. While commenters supported the approach in 
the proposed regulations, arguing that it would provide an accurate 
picture of crime on campus for each calendar year, they also suggested 
modifying the language to clarify that an institution must include a 
statistic for stalking in each and every year in which a particular 
course of conduct is reported to a local police agency or campus 
security authority. The modification was made to address this concern.

Stalking After an ``Official Intervention''

    The Department removed proposed Sec.  668.46(c)(6)(iii) which would 
have required institutions to record a report of stalking as a new and 
distinct crime, and not associated with a previous report of stalking, 
when the stalking behavior continues after an official intervention.
    Some of the commenters supported the approach in the NPRM under 
which stalking would be counted separately after an official 
intervention, including formal and informal intervention and those 
initiated by school officials or a court.
    Other commenters urged the Department to remove Sec.  
668.46(c)(6)(iii) and argued that the proposed approach would be 
inconsistent with treating stalking as a course of conduct. They 
explained that stalking cases often have numerous points of 
intervention, but that despite one or multiple interventions, it is 
still the same pattern or course of conduct, and that recording a new 
statistic after an ``official intervention'' would be arbitrary. The 
Department agreed with this argument.

Recording All Reported Crimes (Sec.  668.46(c)(2))

    The Department received comments asking us to clarify how the 
regulation that provides that all crimes reported to a campus security 
authority must be included in an institution's crime statistics relates 
to ``unfounded'' crime reports. The Department has clarified in the 
final regulations that an institution may remove from its crime 
statistics

[[Page 62778]]

(but not from its crime log) reports of crimes that have been 
determined to be ``unfounded.'' We have also added a requirement that 
institutions report to the Department and disclose in the annual 
security report statistics the number of crime reports that were 
``unfounded'' and subsequently withheld from its crime statistics 
during each of the three most recent calendar years. This information 
will enable the Department to monitor the extent to which reports of 
Clery Act crimes are unfounded so that we can provide additional 
guidance about how to properly ``unfound'' a crime report or intervene 
if necessary.

Discussion of Costs and Benefits

    A benefit of these regulations is that they will strengthen the 
rights of campus victims 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 regulations will require institutions to include in their 
annual security report information about the institution's policies and 
programs to prevent sexual assault, which would include information 
about programs that address dating violence, domestic violence, sexual 
assault, and stalking. This information would help students and 
employees understand these rights, procedures and programs. 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 equal opportunities for the presence of advisors at 
meetings and proceedings, an equal right to appeal if appeals are 
available, and the right to learn of the outcome of the proceedings. 
Victims of these crimes would gain the benefit of a written explanation 
of their rights and options.
    Institutions would largely bear the costs of these regulations, 
which will 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 regulations, 
institutions will 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 will have to 
create or update the material or the availability of prevention 
programs while others may have sufficient information and programs in 
place. 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 regulations can 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 
regulations involves institutional disciplinary proceedings in cases of 
alleged dating violence, domestic violence, sexual assault, or 
stalking. The policy statement describing the proceedings will have to 
include: a description of the standard of evidence that applies; a 
description of the possible sanctions; a statement that the accused and 
the accuser will have an equal right to have others present, including 
an advisor of their choice; and a statement that written notice of the 
outcome 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 would have to make changes to their 
disciplinary proceedings. The Department has not attempted to quantify 
those potential additional costs, which could vary significantly among 
institutions.
    In addition to the costs described above, institutions will incur 
costs associated with the reporting and disclosure requirements of the 
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 regulations, these 
costs will 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 actions. In total, 
the regulations are estimated to increase burden on institutions 
participating in the title IV, HEA programs by 77,725 hours annually. 
The monetized cost of this additional 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.

Net Budget Impacts

    The 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 zeroes'' 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-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 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

[[Page 62779]]

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 Act but those fines do not 
have a net budget impact. Therefore, we estimate that the regulations 
will have no net budget impact on the title IV, HEA programs.
Alternatives Considered
    The Department determined that regulatory action was needed 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 regulations, a number of different 
regulatory approaches were discussed by the Department and the non-
Federal negotiators 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,'' and ``consent.'' The alternative 
approaches to these definitions considered by the Department are 
discussed in the following section.

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 used 
interchangeably, along with the term ``results.'' The Department 
considered defining ``outcomes'' to be one or more parts of the 
results. An alternative definition of ``initial determinations'' was 
also considered by the Department and would have referred to decisions 
made before the appeals process, if the institution had such a process, 
meaning prior to a final determination. A ``final determination'' would 
have been defined as 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 regulations to include the initial, 
interim, and final decisions.

Alternative Definition of Dating Violence

    The Department considered several alternatives in 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 
emotional and psychological abuse did not always elevate into violence 
and had concerns over the ability of campus security authorities to 
identify this abuse.
    The Department also took into consideration the definition of 
``dating violence'' as a crime when it is not a prosecutable crime in 
some jurisdictions. To address this concern, the Department added a 
statement that any incident meeting the definition of ``dating 
violence'' is considered a crime for the purposes of Clery Act 
reporting.

Definition of Employees

    The Department considered adding a definition of ``employees'' to 
the regulations. This definition would clarify whether contractors and 
other employees, such as hospital employees affiliated with the 
hospital of the institution, were included as employees since they had 
a presence on campus. The Department decided not to include this 
definition as the statute already requires 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 
purposes of the Clery Act. Some of the negotiators argued 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'' would also create ambiguity in jurisdictions 
which either do not define ``consent,'' or have a definition that 
differs from the one that would be in the regulations. The Department 
decided against including the definition of ``consent'' in the 
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 or the campus security department, must be included in the crime 
log, regardless of the issue of consent.

Final Regulatory Flexibility Act Analysis

    The regulations would apply to institutions of higher education 
that participate in the title IV, HEA Federal student financial aid 
programs, other than foreign institutions of higher education. The U.S. 
Small Business Administration (SBA) 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. The SBA Size Standards define 
nonprofit 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. We do not 
consider any institution dominant in the field of higher education, so 
all non-profit institutions and for-profit institutions with total 
revenues under $7 million in IPEDS are assumed to be small entities. No 
public institutions are assumed to be small entities.

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

    This 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 regulations would reflect the 
statutory requirement that institutions compile 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.

[[Page 62780]]

Succinct Statement of the Objectives of, and Legal Basis for, the 
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) of the 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 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 Regulations Would Apply

    The regulations would apply to institutions of higher education 
that participate in the title IV, HEA Federal student financial 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 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 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 Sec.  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 
Regulations

    The 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.

Paperwork Reduction Act of 1995

    The Paperwork Reduction Act of 1995 does not require you to respond 
to a collection of information unless it displays a valid OMB control 
number. We display the valid OMB control numbers assigned to the 
collections of information in these final regulations at the end of the 
affected sections of the regulations.
    Section 668.46 contains information collection requirements. Under 
the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3507(d)), the 
Department has submitted a copy of these sections, related forms, and 
Information Collections Requests (ICRs) to the Office of Management and 
Budget (OMB) for its review.

Section 668.46 Institutional Security Policies and Crimes Statistics

    Requirements: Under the final regulations in Sec.  668.46(b) Annual 
security report, we are revising and expanding existing language and 
adding new requirements for items to be reported annually. We are 
revising Sec.  668.46(b)(4)(i) to require institutions to, in addition 
to the existing required information, address in their statements 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 agencies, for the investigation of alleged criminal offenses. 
This change incorporates modifications made to the Clery Act by the 
Higher Education Opportunity Act.
    We are revising and restructuring Sec.  668.46(b)(11). 
Specifically, we 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 will 
follow when one of these crimes is reported. This change incorporates 
modifications made to the Clery Act by VAWA.
    Under Sec.  668.46(b)(11)(ii), institutions must provide written 
information to the victim of dating violence, domestic violence, sexual 
assault, and stalking. Institutions are required to provide 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

[[Page 62781]]

applicable, the victim's rights or institution's responsibilities for 
orders of protection. This change incorporates modifications made to 
the Clery Act by VAWA, discussions during the negotiations, and input 
we received from public comments.
    In Sec.  668.46(b)(11)(iii), we are adding a provision to specify 
that institutions must address in their annual security report how they 
will complete publicly available record-keeping for the purposes of the 
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 
institutions to provide such accommodations or protective measures. 
This change incorporates modifications made to the Clery Act by VAWA, 
discussions during the negotiations, and input we received from public 
comments.
    In Sec.  668.46(b)(11)(iv), we are requiring institutions to 
specify in their annual security report that they will provide a 
written notification of the services that are available to victims of 
dating violence, domestic violence, sexual assault and stalking. The 
notice must provide information on existing counseling, health, mental 
health, victim advocacy, legal assistance, visa and immigration 
services, and other services that may be available at the institution 
and in the community. This change incorporates modifications made to 
the Clery Act by VAWA, discussions during negotiations, and input we 
received from public comments.
    We are revising Sec.  668.46(b)(11)(v) to require institutions to 
specify in their annual security report that written notification will 
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 will be afforded any victim, regardless of whether the 
victim reports the crime to campus policy or law enforcement. This 
change incorporates modifications made to the Clery Act by VAWA, 
discussions during negotiations, and input we received from public 
comments.
    In Sec.  668.46(b)(11)(vi), we are adding a new provision to 
require institutions to specify in their ASR 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 the victim will be provided a written explanation of 
their rights and options, whether the offense occurred on campus or off 
campus. This change incorporates modifications made to the HEA by VAWA.
    Burden Calculation: We estimate that the changes in Sec.  
668.46(b)(11) will add 2.5 hours of additional burden for an 
institution. As a result, reporting burden at public institutions will 
increase by 5,028 hours (2,011 public institutions time 2.5 hours per 
institution). Reporting burden at private non-profit institutions will 
increase by 4,635 hours (1,854 private non-profit institutions times 
2.5 hours per institution). Reporting burden at private for-profit 
institutions will increase by 8,413 hours (3,365 private for-profit 
institutions times 2.5 hours per institution).
    Collectively, burden will increase by 18,076 hours under OMB 
Control Number 1845-0022.
    Requirements: Under the final regulations in Sec.  668.46(c), Crime 
statistics, we will revise and expand existing language and add new 
reporting requirements for items to be reported in the annual survey.
    The final revisions to Sec.  668.46(c)(1) will add the VAWA crimes 
of dating violence, domestic violence and stalking to the list of 
crimes about which institutions must collect and disclose statistics in 
their annual crime statistics reports. The Department is also modifying 
its approach for the reporting and disclosing of sex offenses to 
reflect updates to the FBI's Uniform Crime Reporting (UCR) Program. The 
Department is making other changes to improve the clarity of this 
paragraph.
    While institutions will continue to be required to report 
statistics for the three most recent calendar years, the reporting 
requirements in these final regulations are expanded because of the 
addition of new crimes added by VAWA.
    Under the final regulations in Sec.  668.46(c)(2)(iii), an 
institution may withhold, or subsequently remove, a reported crime from 
its crime statistics if, after a full investigation, a sworn or 
commissioned law enforcement officer makes a formal determination that 
the crime is false or baseless and therefore ``unfounded.'' Under the 
final regulations in Sec.  668.46(c)(2)(iii)(A), an institution must 
report to the Department and disclose in its annual security report 
statistics the total number of crimes that were ``unfounded'' and 
subsequently withheld from its crime statistics during each of the 
three most recent calendar years. We have determined that the burden 
associated with Sec. Sec.  668.46(c)(2)(iii) and (iii)(A), is de 
minimus in nature. ``Unfounding'' a crime report is a long-standing 
process and, as indicated in the preamble to this final rule, the 
Department has required institutions to maintain accurate documentation 
of the investigation and the basis for ``unfounding'' a crime report 
when removing it from their crime statistics for compliance purposes 
for some time. Institutions are already expected to have documentation 
in the situation in which a crime has been ``unfounded,'' and they 
already report crime report statistics to the Department through our 
electronic, Web-based reporting system. Because this provision requires 
institutions to report information that they must already collect 
through an existing system, there is no burden associated with this 
provision.
    The final regulations under Sec. Sec.  668.46 (c)(4)(iii) and 
668.46 (c)(vii) will include gender identity and national origin as two 
new categories of bias that serve as the basis for a determination of a 
hate crime.
    Under the final regulations in Sec.  668.46 (c)(6), we added 
stalking as a reportable crime and defined it in the regulations.
    These changes implement the modifications VAWA made to the HEA, and 
improve the overall clarity of this paragraph. We believe that burden 
will 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 changes to the 
reporting of crime statistics will take each institution 1.50 hours of 
additional burden. As a result, reporting burden at public institutions 
will 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 will increase by 5,048 hours (3,365 private for-profit 
institutions times 1.50 hours per institution).
    Collectively, burden will increase by 10,846 hours under OMB 
Control Number 1845-0022.
    Requirements: The final regulations in Sec.  668.46(j), Programs to 
prevent dating violence, domestic violence, sexual assault, and 
stalking, specify the elements of the required statement of policy on 
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.
    The final regulations in Sec.  668.46(j)(1)(i) require the 
institution's

[[Page 62782]]

statement to contain certain elements in the description of the primary 
prevention and awareness programs for incoming students and new 
employees including: The prohibition of dating violence, domestic 
violence, sexual assault, or stalking, definitions of those crimes and 
a definition of consent according to the applicable jurisdiction, and 
descriptions of safe and positive options for bystander intervention, 
information on risk reduction, as well as other elements of Sec. Sec.  
668.46(b)(11)(ii)-(vii) and (k)(2). These changes incorporate 
modifications made to the HEA by VAWA.
    The final regulations in Sec.  668.46(j)(1)(ii) 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 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 as well 
as other elements of Sec. Sec.  668.46(b)(11)(ii)-(vii) and (k)(2). 
This amendatory language is required to incorporate changes made to the 
HEA by VAWA.
    Burden Calculation: On average, we estimate that the changes to the 
institution's statements of policy and description of programs and 
ongoing campaigns will take each institution four hours of additional 
burden. As a result, reporting burden at public institutions will 
increase by 8,044 hours (2,011 reporting public institutions times 4 
hours per institution). Reporting burden at private non-profit 
institutions will increase by 7,416 hours (1,854 private non-profit 
institutions times four hours). Reporting burden at private for-profit 
institutions will increase by 13,460 hours (3,365 private for-profit 
institutions times four hours per institution).
    Collectively, burden will increase by 28,920 hours under OMB 
Control Number 1845-0022.
    Requirements: Under the final regulations in Sec.  668.46(k), 
Procedures for institutional disciplinary action in cases of alleged 
dating violence, domestic violence, sexual assault, or stalking, we are 
implementing 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.
    The final regulations in Sec.  668.46(k)(1) 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 
final regulations require the following additions to the statement of 
policy.
    The final regulations in Sec.  668.46(k)(1)(i) provide 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.
    The final regulations in Sec.  668.46(k)(1)(ii) provide that the 
statement of policy must describe the standard of evidence that will be 
used during any disciplinary proceeding.
    The final regulations in Sec.  668.46(k)(1)(iii) provide that the 
statement of policy must list all possible sanctions an institution may 
impose following the results of any disciplinary proceeding.
    The final regulations in Sec.  668.46(k)(1)(iv) provide 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 the final regulations in Sec.  668.46(k)(2), the institution 
will have to provide additional information regarding its disciplinary 
proceedings in the statement of policy. Section 668.46(k)(2)(i) 
requires that an institution's statement of policy must provide that 
its disciplinary proceeding includes a prompt, fair, and impartial 
process from the initial investigation to the final result. 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 the 
final regulations in Sec.  668.46(k)(2)(ii).
    Under the final regulations in 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. The 
final regulations in Sec.  668.46(k)(2)(iv), provide that 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 the final 
regulations in 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 any 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.
    Burden Calculation: On average, we estimate that the changes to the 
institution's statement of policy will take each institution 2.75 hours 
of additional burden. As a result, reporting burden at public 
institutions will increase by 5,530 hours (2,011 reporting public 
institutions times 2.75 hours per institution). Reporting burden at 
private non-profit institutions will increase by 5,099 hours (1,854 
private non-profit institutions times 2.75 hours). Reporting burden at 
private for-profit institutions will increase by 9,254 hours (3,365 
private for-profit institutions times 2.75 hours per institution).
    Collectively, burden will increase by 19,883 hours under OMB 
Control Number 1845-0022.
    Consistent with the discussion above, the table below describes the 
final regulations involving information collections, the information 
being collected, and 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 wage 
data developed using BLS data, available at www.bls.gov/ncs/ect/sp/ecsuphst.pdf, is $2,840,848.75, as shown in the following chart. This 
cost was based on an hourly rate of $36.55 for institutions.

[[Page 62783]]



                                            Collection of Information
----------------------------------------------------------------------------------------------------------------
                                                                      OMB control number and
           Regulatory section              Information collection    estimated burden [change   Estimated costs
                                                                            in burden]
----------------------------------------------------------------------------------------------------------------
Sec.   668.46(b) Annual security report  Revises and expands        OMB 1845-0022. We                $660,677.80
                                          existing language and      estimate that the burden
                                          adds new requirements      will increase by 18,076
                                          for items to be reported   hours.
                                          annually.
Sec.   668.46(c) Crime statistics......  Revises and expands        OMB 1845-0022. We                 396,421.30
                                          existing language and      estimate that the burden
                                          adds new reporting         will increase by 10,846
                                          requirements for items     hours.
                                          to be reported in the
                                          annual crime statistics
                                          report.
Sec.   668.46(j) Programs to prevent     Specifies the elements of  OMB 1845-0022. We               $,057,026.00
 dating violence, domestic violence,      the required statement     estimate that the burden
 sexual assault, and stalking.            of policy on and           will increase by 28,920
                                          description of the         hours.
                                          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                 726,723.65
 institutional disciplinary action in     changes requiring an       estimate that the burden
 cases of alleged dating violence,        institution that           will increase by 19,883
 domestic violence, sexual assault, and   participates in any        hours.
 stalking.                                title 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.
----------------------------------------------------------------------------------------------------------------

Assessment of Educational Impact

    In the NPRM we requested 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.
    Based on the response to the NPRM and on our review, we have 
determined that these final regulations do not 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 format (e.g., braille, large print, 
audiotape, or compact disc) on request to the program contact 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.

(Catalog of Federal Domestic Assistance Number does not apply.)

List of Subjects in 34 CFR Part 668

    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: October 7, 2014.
Arne Duncan,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary of 
Education amends 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. Revise Sec.  668.46 to read as follows:


Sec.  668.46  Institutional security policies and crime statistics.

    (a) Definitions. Additional definitions that apply to this section:
    Business day. Monday through Friday, excluding any day when the 
institution is closed.
    Campus. (i) 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
    (ii) Any building or property that is within or reasonably 
contiguous to the area identified in paragraph (i) of this definition, 
that is owned by the institution but controlled by another person, is 
frequently used by students, and supports institutional purposes (such 
as a food or other retail vendor).
    Campus security authority. (i) A campus police department or a 
campus security department of an institution.
    (ii) Any individual or individuals who have responsibility for 
campus security but who do not constitute a campus police department or 
a campus security department under paragraph (i) of this definition, 
such as an individual who is responsible for monitoring entrance into 
institutional property.
    (iii) Any individual or organization specified in an institution's 
statement of campus security policy as an individual or organization to 
which students and employees should report criminal offenses.
    (iv) An official of an institution who has significant 
responsibility for student and campus activities, including, but not 
limited to, student housing, student discipline, and campus judicial

[[Page 62784]]

proceedings. If such an official is a pastoral or professional 
counselor as defined below, the official is not considered a campus 
security authority when acting as a pastoral or professional counselor.
    Clery geography. (i) 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--
    (A) Buildings and property that are part of the institution's 
campus;
    (B) The institution's noncampus buildings and property; and
    (C) Public property within or immediately adjacent to and 
accessible from the campus.
    (ii) 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 (i) 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.
    (i) 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.
    (ii) For the purposes of this definition--
    (A) Dating violence includes, but is not limited to, sexual or 
physical abuse or the threat of such abuse.
    (B) Dating violence does not include acts covered under the 
definition of domestic violence.
    (iii) For the purposes of complying with the requirements of this 
section and Sec.  668.41, any incident meeting this definition is 
considered a crime for the purposes of Clery Act reporting.
    Domestic violence. (i) A felony or misdemeanor crime of violence 
committed--
    (A) By a current or former spouse or intimate partner of the 
victim;
    (B) By a person with whom the victim shares a child in common;
    (C) By a person who is cohabitating with, or has cohabitated with, 
the victim as a spouse or intimate partner;
    (D) 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
    (E) 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.
    (ii) For the purposes of complying with the requirements of this 
section and Sec.  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.
    Noncampus building or property. (i) Any building or property owned 
or controlled by a student organization that is officially recognized 
by the institution; or
    (ii) 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 within 
the same reasonably contiguous geographic area of the institution.
    Pastoral counselor. A person who is associated with a religious 
order or denomination, is recognized by that religious order or 
denomination as someone who provides confidential counseling, and is 
functioning within the scope of that recognition as a pastoral 
counselor.
    Professional counselor. A person whose official responsibilities 
include providing mental health counseling to members of the 
institution's community and who is functioning within the scope of the 
counselor's license or certification.
    Programs to prevent dating violence, domestic violence, sexual 
assault, and stalking. (i) Comprehensive, intentional, and integrated 
programming, initiatives, strategies, and campaigns intended to end 
dating violence, domestic violence, sexual assault, and stalking that--
    (A) 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
    (B) Consider environmental risk and protective factors as they 
occur on the individual, relationship, institutional, community, and 
societal levels.
    (ii) 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) of this section.
    Public property. All public property, including thoroughfares, 
streets, sidewalks, and parking facilities, that is within the campus, 
or immediately adjacent to and accessible from the campus.
    Referred for campus disciplinary action. The referral of any person 
to any campus official who initiates a disciplinary action of which a 
record is kept and which may result in the imposition of a sanction.
    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. (i) Engaging in a course of conduct directed at a 
specific person that would cause a reasonable person to--
    (A) Fear for the person's safety or the safety of others; or
    (B) Suffer substantial emotional distress.
    (ii) For the purposes of this definition--
    (A) 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.
    (B) Reasonable person means a reasonable person under similar 
circumstances and with similar identities to the victim.
    (C) Substantial emotional distress means significant mental 
suffering or anguish that may, but does not

[[Page 62785]]

necessarily, require medical or other professional treatment or 
counseling.
    (iii) 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.
    Test. Regularly scheduled drills, exercises, and appropriate 
follow-through activities, designed for assessment and evaluation of 
emergency plans and capabilities.
    (b) Annual security report. An institution must prepare an annual 
security report reflecting its current policies that contains, at a 
minimum, the following information:
    (1) The crime statistics described in paragraph (c) of this 
section.
    (2) A statement of policies regarding procedures for students and 
others to report criminal actions or other emergencies occurring on 
campus. This statement must include the institution's policies 
concerning its response to these reports, including--
    (i) Policies for making timely warning reports to members of the 
campus community, as required by paragraph (e) of this section, 
regarding the occurrence of crimes described in paragraph (c)(1) of 
this section;
    (ii) Policies for preparing the annual disclosure of crime 
statistics;
    (iii) A list of the titles of each person or organization to whom 
students and employees should report the criminal offenses described in 
paragraph (c)(1) of this section for the purposes of making timely 
warning reports and the annual statistical disclosure; and
    (iv) Policies or procedures for victims or witnesses to report 
crimes on a voluntary, confidential basis for inclusion in the annual 
disclosure of crime statistics.
    (3) A statement of policies concerning security of and access to 
campus facilities, including campus residences, and security 
considerations used in the maintenance of campus facilities.
    (4) A statement of 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.
    (5) A description of the type and frequency of programs designed to 
inform students and employees about campus security procedures and 
practices and to encourage students and employees to be responsible for 
their own security and the security of others.
    (6) A description of programs designed to inform students and 
employees about the prevention of crimes.
    (7) A statement of policy concerning the monitoring and recording 
through local police agencies of criminal activity by students at 
noncampus locations of student organizations officially recognized by 
the institution, including student organizations with noncampus housing 
facilities.
    (8) A statement of policy regarding the possession, use, and sale 
of alcoholic beverages and enforcement of State underage drinking laws.
    (9) A statement of policy regarding the possession, use, and sale 
of illegal drugs and enforcement of Federal and State drug laws.
    (10) A description of any drug or alcohol-abuse education programs, 
as required under section 120(a) through (d) of the HEA, otherwise 
known as the Drug-Free Schools and Communities Act of 1989. For the 
purpose of meeting this requirement, an institution may cross-reference 
the materials the institution uses to comply with section 120(a) 
through (d) of the HEA.
    (11) A statement of policy regarding the institution's programs to 
prevent dating violence, domestic violence, sexual assault, and 
stalking, as defined in paragraph (a) of this section, 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, including Clery Act 
reporting and disclosures, without the inclusion of personally 
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 students and employees about existing counseling, 
health, mental health, victim advocacy, legal assistance, visa and 
immigration assistance, student financial aid, 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, available assistance in, and 
how to request changes to academic, living, transportation, and working 
situations or protective measures. The institution must make such 
accommodations or provide such protective measures 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;

[[Page 62786]]

    (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.
    (12) A statement advising the campus community where law 
enforcement agency information provided by a State under section 121 of 
the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 
16921), concerning registered sex offenders may be obtained, such as 
the law enforcement office of the institution, a local law enforcement 
agency with jurisdiction for the campus, or a computer network address.
    (13) A statement of policy regarding emergency response and 
evacuation procedures, as required by paragraph (g) of this section.
    (14) A statement of policy regarding missing student notification 
procedures, as required by paragraph (h) 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 referrals for 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 listed in paragraph (c)(1) 
of this section occurring on or within its Clery geography that are 
reported to a campus security authority for purposes of Clery Act 
reporting. Clery Act reporting does not require initiating an 
investigation or disclosing personally 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.
    (iii) An institution may withhold, or subsequently remove, a 
reported crime from its crime statistics in the rare situation where 
sworn or commissioned law enforcement personnel have fully investigated 
the reported crime and, based on the results of this full investigation 
and evidence, have made a formal determination that the crime report is 
false or baseless and therefore ``unfounded.'' Only sworn or 
commissioned law enforcement personnel may ``unfound'' a crime report 
for purposes of reporting under this section. The recovery of stolen 
property, the low value of stolen property, the refusal of the victim 
to cooperate with the prosecution, and the failure to make an arrest do 
not ``unfound'' a crime report.
    (A) An institution must report to the Department and disclose in 
its annual security report statistics the total number of crime reports 
listed in paragraph (c)(1) of this section that were ``unfounded'' and 
subsequently withheld from its crime statistics pursuant to paragraph 
(c)(2)(iii) of this section during each of the three most recent 
calendar years.
    (B) [Reserved]
    (3) Crimes must be recorded by calendar year. (i) An institution 
must record 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 for each and every year in 
which the course of conduct is reported to a local police agency or to 
a campus security authority.
    (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.
    (7) Identification of the victim or the accused. The statistics 
required under paragraph (c) of this section do 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

[[Page 62787]]

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 for murder and 
nonnegligent manslaughter, negligent manslaughter, rape, robbery, 
aggravated assault, burglary, motor vehicle theft, arson, liquor law 
violations, drug law violations, and illegal weapons possession using 
the definitions of those crimes from the ``Summary Reporting System 
(SRS) User Manual'' from the FBI's UCR Program, as provided in Appendix 
A to this subpart.
    (ii) An institution must compile the crime statistics for fondling, 
incest, and statutory rape using the definitions of those crimes from 
the ``National Incident-Based Reporting System (NIBRS) User Manual'' 
from the FBI's UCR Program, as provided in Appendix A to this subpart.
    (iii) An institution must compile the crime statistics for the hate 
crimes of larceny-theft, simple assault, intimidation, and destruction/
damage/vandalism of property using the definitions provided in the 
``Hate Crime Data Collection Guidelines and Training Manual'' from the 
FBI's UCR Program, as provided in Appendix A to this subpart.
    (iv) An institution must compile the crime statistics for dating 
violence, domestic violence, and stalking using the definitions 
provided in paragraph (a) of this section.
    (v) 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 ``Summary Reporting System 
(SRS) User Manual.
    (vi) If arson is committed, an institution must always record the 
arson in its statistics, regardless of whether or not it occurs in the 
same incident as another crime.
    (vii) If rape, fondling, incest, or statutory rape occurs in the 
same incident as a murder, an institution must record both the sex 
offense and the murder in its statistics.
    (10) Use of a map. In complying with the statistical reporting 
requirements under this paragraph (c) of this section, 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. (i) In complying with the 
statistical reporting requirements under paragraph (c) of this section, 
an institution must make a reasonable, good-faith effort to obtain 
statistics for crimes that occurred on or within the institution's 
Clery geography and may rely on the information supplied by a local or 
State police agency.
    (ii) 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.
    (d) Separate campus. An institution must comply with the 
requirements of this section for each separate campus.
    (e) Timely warning and emergency notification. (1) An institution 
must, in a manner that is timely and 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 will aid in the prevention of similar 
crimes, report to the campus community on crimes that are--
    (i) Described in paragraph (c)(1) of this section;
    (ii) Reported to campus security authorities as identified under 
the institution's statement of current campus policies pursuant to 
paragraph (b)(2) of this section or local police agencies; and
    (iii) Considered by the institution to represent a threat to 
students and employees.
    (2) An institution is not required to provide a timely warning with 
respect to crimes reported to a pastoral or professional counselor.
    (3) If there is an immediate threat to the health or safety of 
students or employees occurring on campus, as described in paragraph 
(g)(1) of this section, an institution must follow its emergency 
notification procedures. An institution that follows its emergency 
notification procedures is not required to issue a timely warning based 
on the same circumstances; however, the institution must provide 
adequate follow-up information to the community as needed.
    (f) Crime log. (1) An institution that maintains a campus police or 
a campus security department must maintain a written, easily understood 
daily crime log that records, by the date the crime was reported, any 
crime that occurred within its Clery geography, as described in 
paragraph (ii) of the definition of Clery geography in paragraph (a) of 
this section, and that is reported to the campus police or the campus 
security department. This log must include--
    (i) The nature, date, time, and general location of each crime; and
    (ii) The disposition of the complaint, if known.
    (2) The institution must make an entry or an addition to an entry 
to the log within two business days, as defined under paragraph (a) of 
this section, of the report of the information to the campus police or 
the campus security department, unless that disclosure is prohibited by 
law or would jeopardize the confidentiality of the victim.
    (3)(i) An institution may withhold information required under 
paragraphs (f)(1) and (2) of this section if there is clear and 
convincing evidence that the release of the information would--
    (A) Jeopardize an ongoing criminal investigation or the safety of 
an individual;
    (B) Cause a suspect to flee or evade detection; or
    (C) Result in the destruction of evidence.
    (ii) The institution must disclose any information withheld under 
paragraph (f)(3)(i) of this section once the adverse effect described 
in that paragraph is no longer likely to occur.
    (4) An institution may withhold under paragraph (f)(2) and (3) of 
this section only that information that would cause the adverse effects 
described in those paragraphs.
    (5) The institution must make the crime log for the most recent 60-
day period open to public inspection during normal business hours. The 
institution must make any portion of the log older than 60 days 
available within two business days of a request for public inspection.
    (g) Emergency response and evacuation procedures. An institution 
must include a statement of policy regarding its emergency response and 
evacuation procedures in the annual security report. This statement 
must include--
    (1) The procedures the institution will use to immediately notify 
the campus community upon the confirmation of a significant emergency 
or dangerous situation involving an immediate threat to the health or 
safety of students or employees occurring on the campus;
    (2) A description of the process the institution will use to--
    (i) Confirm that there is a significant emergency or dangerous 
situation as described in paragraph (g)(1) of this section;
    (ii) Determine the appropriate segment or segments of the campus 
community to receive a notification;
    (iii) Determine the content of the notification; and
    (iv) Initiate the notification system.
    (3) A statement that the institution will, without delay, and 
taking into

[[Page 62788]]

account the safety of the community, determine the content of the 
notification and initiate the notification system, unless issuing a 
notification will, in the professional judgment of responsible 
authorities, compromise efforts to assist a victim or to contain, 
respond to, or otherwise mitigate the emergency;
    (4) A list of the titles of the person or persons or organization 
or organizations responsible for carrying out the actions described in 
paragraph (g)(2) of this section;
    (5) The institution's procedures for disseminating emergency 
information to the larger community; and
    (6) The institution's procedures to test the emergency response and 
evacuation procedures on at least an annual basis, including--
    (i) Tests that may be announced or unannounced;
    (ii) Publicizing its emergency response and evacuation procedures 
in conjunction with at least one test per calendar year; and
    (iii) Documenting, for each test, a description of the exercise, 
the date, time, and whether it was announced or unannounced.
    (h) Missing student notification policies and procedures. (1) An 
institution that provides any on-campus student housing facility must 
include a statement of policy regarding missing student notification 
procedures for students who reside in on-campus student housing 
facilities in its annual security report. This statement must--
    (i) Indicate a list of titles of the persons or organizations to 
which students, employees, or other individuals should report that a 
student has been missing for 24 hours;
    (ii) Require that any missing student report must be referred 
immediately to the institution's police or campus security department, 
or, in the absence of an institutional police or campus security 
department, to the local law enforcement agency that has jurisdiction 
in the area;
    (iii) Contain an option for each student to identify a contact 
person or persons whom the institution shall notify within 24 hours of 
the determination that the student is missing, if the student has been 
determined missing by the institutional police or campus security 
department, or the local law enforcement agency;
    (iv) Advise students that their contact information will be 
registered confidentially, that this information will be accessible 
only to authorized campus officials, and that it may not be disclosed, 
except to law enforcement personnel in furtherance of a missing person 
investigation;
    (v) Advise students that if they are under 18 years of age and not 
emancipated, the institution must notify a custodial parent or guardian 
within 24 hours of the determination that the student is missing, in 
addition to notifying any additional contact person designated by the 
student; and
    (vi) Advise students that the institution will notify the local law 
enforcement agency within 24 hours of the determination that the 
student is missing, unless the local law enforcement agency was the 
entity that made the determination that the student is missing.
    (2) The procedures that the institution must follow when a student 
who resides in an on-campus student housing facility is determined to 
have been missing for 24 hours include--
    (i) If the student has designated a contact person, notifying that 
contact person within 24 hours that the student is missing;
    (ii) If the student is under 18 years of age and is not 
emancipated, notifying the student's custodial parent or guardian and 
any other designated contact person within 24 hours that the student is 
missing; and
    (iii) Regardless of whether the student has identified a contact 
person, is above the age of 18, or is an emancipated minor, informing 
the local law enforcement agency that has jurisdiction in the area 
within 24 hours that the student is missing.
    (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, as those 
terms are defined in paragraph (a) of this section;
    (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 (j)--
    (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

[[Page 62789]]

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, as defined in paragraph (a) of 
this section, 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; how to file a 
disciplinary complaint; 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 to the victim 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 
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 (k)--
    (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 and equal access to the accuser, the accused, 
and appropriate officials to any information that will be used 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, factfinding investigations, formal or informal 
meetings, and hearings. Proceeding does not include communications and 
meetings between officials and victims concerning accommodations or 
protective measures to be provided to a victim.
    (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.
    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 (UCR) Program. The 
definitions for murder, rape, robbery, aggravated assault, burglary, 
motor vehicle theft, weapons: carrying, possessing, etc., law 
violations, drug abuse violations, and liquor law violations are 
from the ``Summary Reporting System (SRS) User Manual'' from the 
FBI's UCR Program. The definitions of fondling, incest, and 
statutory rape are excerpted from the ``National Incident-Based 
Reporting System (NIBRS) User Manual'' from the FBI's UCR Program. 
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 and 
Training Manual'' from the FBI's UCR Program.

Crime Definitions From the Summary Reporting System (SRS) User Manual 
From the FBI's UCR Program

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.

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.

[[Page 62790]]

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.

Crime Definitions From the National Incident-Based Reporting System 
(NIBRS) User Manual from the FBI's UCR 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. 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.
    B. Incest--Sexual intercourse between persons who are related to 
each other within the degrees wherein marriage is prohibited by law.
    C. Statutory Rape--Sexual intercourse with a person who is under 
the statutory age of consent.

Crime Definitions From the Hate Crime Data Collection Guidelines and 
Training Manual From the FBI's UCR Program

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. 2014-24284 Filed 10-17-14; 8:45 am]
BILLING CODE 4000-01-P