prompt_front: You are given two reports by the government agency.



Question: Write a one-page summary of the report 1.

Report 1: Title IX of the Education Amendments of 1972 (Title IX) provides an avenue of legal relief for victims of sexual abuse and harassment committed by professors, teachers, coaches, and others at educational institutions  The statute prohibits discrimination "on the basis of sex" of any person in an educational program or activity receiving federal funding  Though Title IX makes no explicit reference to sexual abuse or harassment, the Supreme Court has held that a school district can violate the statute, and be held liable for damages, based on a deliberately indifferent response to a teacher's sexual abuse or harassment of a student  The Court has also held that a school board may be liable under Title IX for a deliberately indifferent response to student-on-student sexual harassment  Meanwhile, federal agencies that administratively enforce the statute, such as the Department of Education (ED), have also determined that educational institutions can be held responsible for instances of sexual harassment under Title IX in certain circumstances  Title IX is thus primarily enforced in two ways: (1) through private rights of action directly against schools by or on behalf of students subject to such harassment in certain circumstances; and (2) by federal agencies that provide funding to educational programs  With respect to the latter enforcement prong, like several other federal civil rights statutes, Title IX makes compliance with its antidiscrimination mandate a condition for receiving federal funding in any education program or activity  Title IX applies to federal-funded schools at all levels of education  For instance, all public school districts receive some federal financial assistance, as do most institutions of higher education through participation in federal student aid programs  Notably, when any part of a school district or institution of higher education receives federal funds, all of the recipient's operations are covered by Title IX  The text of Title IX does not expressly mention sexual abuse or harassment, while current regulations implementing the statute also do not explicitly address sexual harassment (although the regulations do require schools to designate at least one employee to function as a Title IX Coordinator)  In each of the last several presidential administrations, however, the Department of Education (ED) has issued guidance documents that instruct schools regarding their responsibilities under Title IX when addressing allegations of sexual harassment  In response, educational institutions have developed procedures and practices to investigate and respond to allegations of sexual harassment and assault  And ED recently issued another notice of proposed rulemaking, after having revoked some of its prior guidance to schools in 2017  As discussed in this report, if adopted, the regulations would significantly change educational institutions' responsibilities for responding to sexual harassment allegations  To place the proposed Title IX regulations in context, this report provides background on the legal landscape that informs the proposal  First, the report examines how federal courts have understood Title IX's requirements in the context of private rights of actions brought by students directly against educational institutions seeking damages for sexual abuse or harassment  The report continues by examining how federal agencies have enforced Title IX, with particular focus on ED's guidance documents that direct schools on how to respond to sexual harassment and assault allegations  The report then considers various constitutional challenges brought by students against public universities, which claim that some universities' responses to allegations of sexual harassment have violated the due process rights of the accused  With this backdrop set, the report examines ED's proposed regulations with an emphasis on how they would alter the responsibilities of schools in complying with Title IX  Title IX of the Education Amendments of 1972 states that "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance," subject to certain exemptions  In other words, recipients of federal funding, which administer an educational program or activity, are prohibited from discriminating on the basis of sex  The statute, however, does not expressly provide for a private right of action by which victims of sex discrimination may recover for a Title IX violation  Nor does the statute expressly prohibit sexual harassment, abuse, or molestation as forms of unlawful sex discrimination, or otherwise define unlawful sexual abuse or harassment  Title IX also does not delineate the circumstances in which a school or educational program may be liable for such conduct  Given the absence of statutory text "to shed light on Congress' intent," federal courts have played a primary, if not exclusive, role in establishing the remedial scheme by which victims of sexual harassment or abuse may seek relief under Title IX through a private right of action  The Supreme Court first interpreted Title IX to provide for a judicially implied private right of action against a federal-funded educational institution for sexual harassment, and later, an implied damages remedy in such actions  Since then, and in the absence of legislative amendments to Title IX on those issues, the Court has also created the legal standard for establishing liability under Title IX for sexual abuse or harassment committed by a teacher, and other students  The Court, and numerous federal courts of appeals, have described this judicially created liability standard—which draws upon the "deliberate indifference" standard as applied under 42 U S C  § 1983 —as a "high bar for plaintiffs to recover under Title IX " Critically, in a Title IX private right of action for damages, an educational institution (or other federally funded program or activity) is not strictly liable for a principal's or teacher's sexual harassment or abuse of a student  In other words, the fact that sexual harassment or abuse occurred and was committed by these individuals is not the basis for a funding recipient's liability under the Supreme Court's remedial scheme  Rather, Title IX liability turns on the recipient's response to its actual knowledge of that conduct  A recipient will be liable only when its response was so deficient as to amount to "deliberate indifference" to the alleged harassment or abuse  The private right of action currently available under Title IX is one of judicial implication—that is, the Court has interpreted the statute to imply such a right, in the absence of express statutory language providing for it  A private right of action provides a personal legal remedy for victims of sex discrimination in the form of specific relief or damages  In contrast, and as discussed in a later section, administrative enforcement of the statute makes its general focus the institutional policies and practices of the recipient educational institution  Two Supreme Court decisions, together, set out the requirements for establishing an educational funding recipient's liability under Title IX for damages for sexual abuse or harassment: Gebser v  Lago Vista Independent School District and Davis N ext Friend LaShonda D  v  Monroe County Board of Education   The Court's liability standard premises an institution's Title IX liability for sexual harassment or abuse based on the institution's "deliberate indifference" in responding to knowledge of that conduct  Thus—and critical to understanding a Title IX private right of action for damages—an educational institution (or other federally funded program or activity) is not strictly liable for a principal's or teacher's sexual harassment or abuse of a student  Indeed, the Supreme Court in Gebser expressly rejected such arguments urging it to apply agency principles to Title IX such that a school would be vicariously liable for such harassment  Instead, liability attaches only if a plaintiff establishes that the funding recipient's response to its "actual" knowledge of the discrimination was deliberately indifferent  Put another way, under the Court's remedial scheme, liability under Title IX is based on the funding recipient's " own failure to act" adequately in response to known misconduct, not the misconduct itself  Thus, an institution will not be liable absent a showing of deliberate indifference, regardless of whether the conduct committed by a principal or teacher could be characterized as egregious  In creating this standard in Gebser , the Court had attempted to "'infer how the [1972] Congress would have addressed the issue had the       action been included as an express provision in the' statute " That task, the Court observed, "inherently entail[ed] a degree of speculation " To inform its analysis, the Court relied significantly on the statute's administrative enforcement provision because, in its view, the provision "contain[ed] important clues" from which to infer legislative intent regarding Title IX liability  The Court observed that, pursuant to that provision, agencies that disburse federal funds may suspend or cut funds to a funding recipient for violating Title IX, but only after they "ha[ve] advised the appropriate person or persons of the failure to comply with the requirement and ha[ve] determined that compliance cannot be secured by voluntary means " Because the statute's administrative procedure "require[s] notice to the recipient and an opportunity to come into voluntary compliance," the Court reasoned that it too would similarly require "actual notice" to an "appropriate person" to establish liability for damages in a private right of action under Title IX  The Court also concluded that a recipient would be liable under Title IX only where a school official responds to that "actual" notice so deficiently that its response amounts to "deliberate indifference " In so holding, the Court again looked to Title IX's administrative enforcement scheme and observed that it "presupposes that an official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance " The Court found "a rough parallel in the standard of deliberate indifference," from case law arising under 42 U S C  § 1983 addressing claims "alleging that a municipality's actions in failing to prevent a deprivation of federal rights" caused a violation  The Court thus held that "[u]ntil Congress speaks directly on the subject       we will not hold a school district liable in damages under Title IX for a teacher's sexual harassment of a student absent actual notice and deliberate indifference" —a conclusion that elicited a strong dissent  Deliberate indifference is a "high standard," as described by the Supreme Court in Davis , and must "at a minimum, 'cause [students] to undergo' harassment or 'make them liable or vulnerable' to it " Notably, the "deliberate indifference" standard does not require funding recipients to "remedy" the harassment  Rather, under Davis , a recipient's response to harassment will amount to deliberate indifference only if it is " clearly unreasonable in light of the known circumstances " Because this standard is not "a mere 'reasonableness' standard," a plaintiff must show more than the unreasonableness of a funding recipient's response to sexual abuse or harassment  The plaintiff must show that the recipient was clearly unreasonable in its response  Accordingly, a funding recipient is not liable under Title IX if it responds to sexual abuse or harassment "in a manner that is not clearly unreasonable " In addition to the requisite showing of "deliberate indifference," the Court's standard also requires a plaintiff to establish other threshold showings to prevail in a Title IX suit for damages—both before reaching the question of "deliberate indifference" and after establishing "deliberate indifference" on the part of the school or entity  Before reaching the issue of whether a funding recipient acted with "deliberate indifference," Gebser requires that a plaintiff establish that "an appropriate person" at the funding recipient had "actual knowledge of discrimination " Failure to show either "actual" notice or that such notice was provided to "an appropriate person" of the funding recipient may constitute the sole basis for a court's dismissal of a Title IX claim seeking damages for sexual harassment or abuse  An "appropriate person," under Gebser , is "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf " As discussed later in this report, what constitutes "actual" notice, and who may constitute an "appropriate person," have caused substantive splits among the circuits  Even where "deliberate indifference" is established, the Supreme Court's liability standard further requires a plaintiff alleging student-to-student or peer harassment to make several additional showings: (1) that a funding recipient exercised "substantial control" over the harasser and the context in which the harassment occurred; (2) that the harassment itself was "severe, pervasive, and objectively offensive"; and (3) the denial of educational access resulting from the harassment  With respect to "substantial control," Davis limits a school's liability for damages to circumstances in which the funding recipient exercised "substantial control" over the harasser and in which the harassment took place in a context subject to the recipient's control  If "the harasser is under the school's disciplinary authority," a recipient of federal funding may be liable for its deliberate indifference to the harassment, as the Court in Davis particularly emphasized the recipient's authority to take "remedial action" against the harassment  As for "substantial control" over the environment, "the harassment must take place in a context subject to the school district's control " As to the nature of the sexual harassment itself, Davis requires that the plaintiff show that the conduct "is so severe, pervasive, and objectively offensive, and [] so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities " Whether the conduct rises to this level depends, as the Court stated in Davis , "on a constellation of surrounding circumstances, expectations, and relationships," "including, but not limited to, the ages of the harasser and the victim and the number of individuals involved " Finally, for harassment to have sufficiently affected the victim's education, the Court in Davis made two additional observations  On the one hand, the Court noted that evidence of a decline in the victim's grades—as was alleged there—"provides necessary evidence of a potential link between her education" and the alleged harassment  Yet, the Court also concluded that harassment is actionable under Title IX only when it is "serious enough to have the systemic effect of denying the victim equal access to an educational program or activity " Without defining what might constitute a "systemic effect," the Court offered one example of harassment that does not have such effect: "a single instance" of harassment, even when "sufficiently severe " The Supreme Court's Gebser and Davis decisions establish that a school or other educational program that receives federal funding will be liable under Title IX for damages for the sexual abuse or harassment of a student only if it acted with "deliberate indifference" in its response to known discrimination  Deliberate indifference, the Fifth Circuit has recently observed, "'is an extremely high standard to meet '" Applying this and other components of the Supreme Court's Title IX liability standard, lower federal courts have varied in their formulations of the evidence required to prove a Title IX claim  Some courts, for example, have interpreted Gebser and Davis to adopt a "hostile environment" analysis of Title IX claims alleging teacher-to-student harassment, in light of precedent analyzing harassment claims in the workplace context under Title VII of the Civil Rights Act  Meanwhile, other federal courts have focused their teacher-to-student analysis on whether a plaintiff has established the following elements: "actual" notice of discrimination; by an "appropriate person" authorized to take corrective measures; and "deliberate indifference" by the funding recipient in response to known discrimination  Where a Title IX claim alleges sexual harassment or assault committed by a student against another student , courts have additionally required the plaintiff to establish that: the harassment was "so severe, pervasive, and objectively offensive"; the "victim-students [were] effectively denied equal access to an institution's resources and opportunities"; and the recipient exercised "substantial control" over the harasser and the context in which the harassment occurred  As discussed in further detail below, federal courts of appeals vary—and at times directly conflict—regarding the evidence sufficient to satisfy these elements  Failure to satisfy any one of the elements may be the sole basis for dismissal of a Title IX claim  Under Gebser , a plaintiff must show that the funding recipient had "actual" notice of the discrimination; therefore, it is not enough to present evidence that a funding recipient reasonably s hould have known about the alleged sexual misconduct  Under the standard, then, what type of allegations reported to a school give rise to "actual" notice? Is it enough, for example, if a funding recipient has actual knowledge of a " substantial risk of abuse"? Does it require knowledge of specific allegations of harassment or abuse or—perhaps most narrowly—require knowledge of "severe, pervasive, and objectively offensive" conduct? Meanwhile, if a school is notified of a perpetrator's previous acts of sexual harassment or abuse, may that constitute actual notice of that individual's conduct as to others ? Federal courts differ on these questions of actual notice, with some courts further differentiating between evidence that establishes actual notice of a teacher's sexual abuse versus actual notice of sexual violence or harassment committed by a student  As reflected below, which standard a court applies to evaluate "actual notice" is determinative—the claim may either proceed to the next phase of the analysis or be foreclosed altogether  In Doe v  School Board of Broward County , the Eleventh Circuit addressed the question of whether complaints of two separate students about the same teacher were "sufficient in substance to alert [the principal] to the possibility" of that teacher's sexual assault of a third student  The court held in the affirmative, emphasizing the similarity between the two preceding reports, which alleged multiple occasions of the teacher's propositions for sex and dates, sexual touching, and sexual comments about their bodies  These reports, the court held, raised a triable issue that the principal had actual notice "of a pattern of harassment " And where the analysis of "actual notice" looks to knowledge of the risk of sexual abuse or harassment, the court further observed, "lesser harassment may [] provide actual notice of sexually violent conduct " In Bay n ard v  Malone , however, the Fourth Circuit held that the school principal had no "actual" notice that a sixth grade teacher was sexually abusing a student in his class, despite receiving multiple prior reports that he molested children  There, the evidence reflected that before the plaintiff started sixth grade at the school, the principal had met with one of this teacher's former students, who reported that he had been sexually molested by the teacher while in the sixth grade, warned that the teacher was a pedophile, and that the principal should watch for certain behaviors  In addition, another teacher at the school told the principal about allegations that this teacher sexually molested children  Separately, the school librarian reported to the principal that she had walked in on the teacher with the plaintiff sitting in his lap, with his arm around the student, and their faces very close together, and that when the teacher saw her, he jumped up and the plaintiff fell to the floor  In relaying the incident, the librarian told the principal the behavior had been "inappropriate " Though the court noted that the principal "certainly should have been aware of the potential for abuse," it held that there was "no evidence in the record to support a conclusion that [the principal] was in fact aware that a student was being abused " The court dismissed the Title IX claim on the basis that no appropriate person had actual notice of the abuse of the plaintiff student  As the above cases reflect, in the absence of a clear definition—either in the statute or from the Supreme Court—courts vary with respect to the nature, specificity, and frequency of allegations sufficient to constitute "actual" notice for the purpose of satisfying the first prong of the analysis for Title IX liability for sexual abuse or harassment  The Supreme Court's liability standard for Title IX not only requires actual notice, but also that this notice be made to "an appropriate person"—that is, "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf " Generally, federal appellate case law reflects that rather than treating an individual's title as dispositive, courts engage in fact-specific determinations that appear to focus principally on whether an individual had the ability to halt or address the misconduct or whether the individual occupied a position high enough within the hierarchy of the funding recipient to be fairly said to act in a representative capacity for the recipient  Because the Court's opinions in Gebser and Davis do not clearly delineate which individuals may constitute "appropriate person[s]," federal courts have reached varying—and at times conflicting—determinations  In the elementary or secondary school context, for example, courts vary as to which individuals— a principal, teacher, or guidance counselor —have the requisite "authority to address the alleged discrimination" and "institute" corrective action to constitute "an appropriate person " Some federal courts of appeals have held that a public school principal may—but not always—constitute "an appropriate person " In Warren ex rel   Good v  Reading School District , the Third Circuit held, in a Title IX case alleging sexual abuse by a fourth grade teacher, that the school principal was an "appropriate person" in light of her authority to investigate a teacher's misconduct, which in turn implied her authority to "initiate" corrective measures such as reporting her findings to the school board  The Fourth Circuit, however, reached the opposite conclusion in Baynard v  Malone , holding that the principal—despite being responsible for supervising and evaluating teachers—was not an "appropriate person " The court emphasized that the principal could not "be considered the functional equivalent of the school district" and lacked the authority to "hire, fire, transfer, or suspend teachers " Meanwhile, at least one federal court of appeals has held that a principal who engages directly in sexual abuse or harassment may not constitute an "appropriate person " In Salazar v  South San Antonio Independent School District , the Fifth Circuit interpreted Gebser to hold that where a school official sexually abuses a student, he or she cannot be considered an "appropriate person," even if he would otherwise constitute an "appropriate person " That case involved allegations that a vice principal, who later became principal, sexually abused a student from his third grade to seventh grade year  Though "uncontroverted testimony at trial" established that the school official had corrective authority to address sexual harassment during the time he molested the plaintiff, the Fifth Circuit reasoned that it was "highly unlikely" that he would take corrective measures or report his own behavior so as to provide actual notice to the funding recipient  The court further rejected the argument that the principal's abuse should be treated as an official action of the school district for Title IX liability purposes, given the Supreme Court's rejection of agency principles to Title IX  The Fifth Circuit concluded that the "goals and purpose" of Title IX "would not be accomplished or effectuated by permitting damage awards" in such circumstances  In the higher education context, federal courts of appeals have engaged in similarly fact-specific analyses to determine whether a university employee—for example, a college dean, university counsel, or athletics director —constitutes an "appropriate person" for the purposes of a Title IX private right of action  The analyses in these cases appear to emphasize evidence relating to the individual's ranking in the university hierarchy, responsibilities involving receiving allegations of harassment, and ability to correct or halt the misconduct  Yet, even when there arguably is such evidence, it may not be sufficient to render that individual an "appropriate person " In Ross v  University of Tulsa , for example, the Tenth Circuit held that campus security officers were not "appropriate person[s]" through whom the university could have actual notice of an on-campus sexual assault  The court rejected the contention that the officers' mandatory reporting of sexual assaults to university personnel rendered them "appropriate person[s]," instead likening mandatory reporting to a "clerical act" rather than taking corrective action  The court also rejected the argument that the officers' participation in investigations of campus violence rendered them "appropriate person[s]," as that contention, as presented, "would assume that anyone participating in the initiation of a corrective process" is an "appropriate person " Given the variability of courts' analyses as to who may constitute an "appropriate person," it is unlikely that a school's or university's Title IX Coordinator will categorically constitute an "appropriate person " Rather, as reflected in the above decisions, a court's determination—based on the legal standard set out in Gebser —will likely depend on the characteristics it finds indicative of an "appropriate person" and the evidence relating to the individual's responsibilities in that institution  As discussed earlier, after establishing "actual notice" of the discrimination to an "appropriate person," a plaintiff must additionally prove that the funding recipient acted with deliberate indifference in its response—that is, that the entity acted in a manner that was " clearly unreasonable in light of the known circumstances " Federal appellate courts interpret this standard to require more than a showing that the school or institution failed to respond or act reasonably, or was negligent  Nor is a school required to remedy the harassment to avoid liability in a private right of action based on "deliberate indifference " In these highly fact-intensive analyses, courts examine the nature of the allegations the funding recipient had knowledge of, and what actions the recipient took, if any, in response to that information to determine whether the response was so "clearly unreasonable" as to amount to "deliberate indifference" to the alleged sexual harassment or abuse  The clearest cases of "deliberate indifference" generally concern evidence that the recipient made no effort to respond at all to "actual" notice of sexual harassment or abuse  Evidence of such circumstances might include, for example, a funding recipient's failure to initiate an investigation into serious allegations, or take any disciplinary actions in light of repeated reports of sexual harassment  Where there is evidence that the funding recipient responded in some manner, however, federal case law reflects what appear to be divergent and variable analyses as to whether a response is so deficient as to amount to deliberate indifference  Federal appellate courts have commonly described the requisite showing for deliberate indifference as a "high" bar to meet  In Doe ex rel   Doe v  Dallas Independent School District , for example, the Fifth Circuit held that the school district's response did not amount to deliberate indifference, despite evidence that could arguably be described as reflecting a deficient response  In that case, the plaintiffs, a group of former students, alleged that the same third grade teacher had sexually abused numerous male students, over the course of four years  The plaintiffs presented evidence that in response to a report of sexual molestation, the principal told the parent that the alleged perpetrator was a "good teacher" and that he knew her son was lying; failed to report the allegation to Child Protective Services; did not monitor the teacher further or require him to attend any training; and never raised the issue of sexual abuse again with the teacher until he was ultimately arrested  In the court's view, this evidence failed to create a triable issue of deliberate indifference, as the principal had nonetheless interviewed the student, spoken with his mother, and warned the teacher that if the allegations were true, "he would be 'dealt with '" It could not say, the court concluded, that these actions "were an inadequate response" to the student's allegation  When faced with apparently similar evidence of a school's response to allegations of teacher sexual misconduct, the Eleventh Circuit held that, given "serious deficiencies," the district court had erred in holding that defendant's response, as a matter of law, was not deliberately indifferent  There, the principal had received sexual harassment complaints by two students about the same teacher  In its analysis, the court highlighted the response to the second complaint, because by that time, the principal had notice of a possible pattern  The principal, however, "effectively did nothing other than obtain a written statement" from the student and the teacher  In addition, though the principal, as he had with the first complaint, reported the second complaint to the school board's special investigative unit, he nonetheless failed to notify the unit that the allegation concerned "the same teacher who had been the subject of a formal investigation just months earlier " It could not be said, the court concluded, that "merely because school officials 'confronted [the teacher],' 'obtained statements' from the complaining students, and 'informed the [unit] of the sexual misconduct allegations' (while omitting material details)," that this response was reasonable  Rather, the "failure to institute any corrective measures aimed at ferreting out the possibility of [the teacher]'s sexual harassment of his students could constitute deliberate indifference " Meanwhile, some courts of appeals have analyzed allegations of deliberate indifference that, in their view, the Court's Gebser and Davis decisions did not directly address  In Simpson v  University of Colorado, Boulder , for example, the Tenth Circuit addressed allegations that a university had an "official policy of deliberate indifference" by failing to provide adequate training or guidance in light of an "obvious" need for such actions  There, the head coach and other staff of the university's football program selected current players to host high school recruits on campus, for the purpose of "'show[ing] the recruits a good time '" During one such football recruiting visit, the plaintiffs, who had agreed to meet with them, alleged that university football players and high school recruits sexually assaulted them  In analyzing the issue of deliberate indifference, the court highlighted evidence that the university coaching staff had prior and ongoing knowledge of sexual assaults occurring during football recruitment and by football players, including the rape of a female student by a university football player two months before the plaintiffs were assaulted  The university had also been previously advised by the local district attorney to implement changes and training to its football recruiting program in light of such sexual assaults  In addition, the head coach "continued to resist recruiting reforms " One player testified that he received little guidance on his responsibilities as a "player-host"; and a handbook provided by the school to the players, the court observed, did not "provide guidance to player-hosts on appropriate behavior by themselves and recruits " The court emphasized that the evidence would support findings that, before the plaintiffs had been assaulted, the head coach had both general and specific knowledge of sexual assaults occurring during recruiting visits, that there had been no change in the recruiting program to lessen the likelihood of such assaults, and that the university "nevertheless maintained an unsupervised player-host program " The evidence, the court held, created a triable issue of deliberate indifference  As with the other components of the Supreme Court's standard for a Title IX private right of action—"actual" notice to an "appropriate person"—federal case law reflects fact-intensive, variable determinations with respect to the evidence necessary to meet the "high" bar for showing deliberate indifference on the part of a funding recipient  In addition to the private rights of action discussed above, Title IX is also enforced by federal agencies that provide funding to educational programs  Title IX makes nondiscrimination based on sex a condition for receiving federal financial assistance in any education program or activity  In this administrative enforcement context, if a school is found to have violated Title IX, the ultimate sanction is termination or suspension of federal funds, rather than a legal judgment requiring payment of damages to a particular student  Agencies are authorized to issue regulations (subject to presidential approval) and orders to enforce the statute and are responsible for monitoring recipients' compliance with Title IX  While a number of federal agencies issue funds for educational programs, and thus are responsible for enforcing the statute with respect to recipients of financial assistance for educational programs, two agencies play particularly prominent roles in enforcing Title IX  Pursuant to the Education Amendments of 1974, the Secretary of Education (ED) is specifically directed to promulgate regulations concerning the prohibition of sex discrimination at education programs that receive federal assistance  Because ED is, among other things, "the primary administrator of federal financial assistance to education," the agency plays a lead role in enforcing Title IX against educational institutions  And according to an executive order, the Attorney General coordinates the implementation and enforcement of Title IX across the executive branch  Subject to the coordinating function of the Attorney General, the Department of Justice's Civil Rights Division and OCR collaborate in enforcing Title IX consistent with a memorandum of understanding reached between the agencies, which notes that OCR has primary responsibility for enforcing the statute directly against recipients of financial assistance from ED through complaint investigations and compliance reviews  Accordingly, ED has promulgated regulations implementing Title IX that apply to traditional educational institutions of all levels that receive federal assistance, including elementary and secondary schools, as well as institutions of higher education  Those regulations specifically bar educational institutions from excluding individuals or denying the benefits of any education program or activity on the basis of sex  ED regulations also require that recipients of federal financial assistance that operate education programs designate an employee (commonly referred to as the Title IX Coordinator) to coordinate efforts to comply with ED regulations regarding sex-based discrimination  Further, schools must establish grievance procedures that provide "prompt and equitable resolution" of complaints alleging prohibited actions  Pursuant to its role in enforcing Title IX, OCR may conduct periodic reviews of institutions, or directed investigations, to ensure that recipients of federal funds are complying with applicable requirements  OCR also receives complaints from individuals alleging violations of Title IX by educational institutions and investigates allegations  When violations of the statute are found through these means, the office can seek informal resolution through a resolution agreement  According to OCR, if negotiations do not reach a resolution agreement, it may then take more formal enforcement measures, including seeking to suspend or terminate an institution's funding  Notably, neither Title IX's text nor ED's current regulations directly address sexual harassment  In the administrative context, ED's OCR has issued a series of guidance documents that have interpreted Title IX to bar sexual harassment and define distinct responsibilities for educational institutions with regard to such allegations  These documents—while sometimes subject to change—generally reflect a different analysis for assessing a school's Title IX liability for harassment than the Supreme Court case law addressing private rights of action for damages for sexual abuse or harassment  In particular, ED has applied a constructive notice requirement that prompts a school's Title IX responsibility to respond, rather than "actual notice" to "an appropriate person" as required in the context of suits for damages  In addition, while the Supreme Court has explained that a school's response will result in liability only where "clearly unreasonable," ED has articulated baseline standards for how schools must respond to comply with Title IX  Finally, while the Supreme Court rejected holding schools responsible for sexual harassment under theories of vicarious liability, ED has held schools responsible for sexual harassment under Title IX where a teacher commits misconduct in the scope of their employment  In 1997, OCR released a guidance document stating that sexual harassment of students by school employees, other students, or third parties is a form of sex discrimination prohibited by Title IX  The guidance explained that two general types of conduct constituted sexual harassment: 1  Quid pro quo harassment: wherein a school employee "explicitly or implicitly conditions a student's participation in an education program or activity or bases an educational decision on the student's submission to unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature"; or 2  Hostile environment harassment: wherein sexual harassing conduct by a school's employee, another student, or a third party "is sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment " In the former case, the 1997 Guidance explained that a school would be liable for quid pro quo harassment by an employee in a position of authority whether or not it knew or should have known of the harassment  In the latter case, the 1997 Guidance explained that, in instances of hostile environment harassment by employees , a school would be liable for harassment if the employee acted with apparent authority or was aided in carrying out the harassment due to his or her position  With respect to sexual harassment by other students or third parties , a school would be liable for harassment if "(i) a hostile environment exists in the school's programs or activities, (ii) the school knows or should have known of the harassment, and (iii) the school fails to take immediate and appropriate corrective action " The Guidance explained that while Title IX does not render a school responsible for the actions of its students, it does make schools responsible for their "own discrimination in failing to remedy [harassment] once the school has notice " Following the release of OCR's 1997 Guidance, the Supreme Court shortly thereafter recognized a substantively different standard for establishing liability in a private suit for damages directly against a school  As discussed above, in 1998, in Gebser , the Supreme Court ruled that in cases of harassment committed by a teacher , a school district is liable only when it has actual knowledge of allegations by an "appropriate person," and so deficiently responds to those allegations that its response amounts to deliberate indifference to the discrimination  And the next year in Davis , the Court held that in addition to a showing of actual knowledge by an appropriate person, and deliberate indifference, a plaintiff suing for damages for sexual harassment committed by a student must show that the conduct was "so severe, pervasive, and objectively offensive" that it denied the victim equal access to educational opportunities or benefits  Crucially, the Court in Gebser distinguished between actions by a school that could result in Title IX liability for damages in a private right of action, and Title IX administrative requirements imposed by a federal agency in implementing and enforcing the statute  According to the Court, agencies possess authority to enforce requirements that effectuate Title IX's mandate, "even if those requirements do not purport to represent a definition of discrimination under the statute " In other words, agencies enforcing Title IX may administratively require recipients to comply with certain procedures and rescind funding for violations, even though breaches of such requirements might not subject a school to liability under a private suit for damages  Following these Supreme Court decisions regarding the standard for liability in Title IX damages suits alleging sexual harassment, ED issued a number of guidance documents generally reaffirming its basic position outlined in its 1997 Guidance, including with respect to notice, a school's responsibilities under Title IX to comply with the statute, and the application of vicarious liability in certain situations  In these documents, ED has indicated that the liability standard imposed by the Supreme Court for Title IX sexual harassment violations is distinct from the standards appropriate in the administrative enforcement context  In other words, a school's responsibilities in responding to sexual harassment allegations under Title IX have been treated differently in the context of a suit for damages than in the administrative enforcement context  In 2001, OCR issued a Revised Sexual Harassment Guidance document that—in light of the intervening Supreme Court decisions that set a more stringent standard for obtaining relief regarding private damages actions —reaffirmed the standards of the agency's 1997 Guidance as grounded in Title IX regulations and distinct from private damages litigation  The guidance explicitly applies to all educational institutions that receive federal funds, including universities  It outlines the compliance standards OCR uses for enforcing and investigating violations of Title IX  As a threshold matter, schools are responsible for adopting grievance procedures that provide prompt and equitable resolution of complaints of sexual harassment  Failure to do so will mean that a school is in violation of Title IX  Generally speaking, when sexual harassment has occurred, educational institutions must take "prompt and effective action calculated to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects " If the "school, upon notice of the harassment, responds by taking prompt and effective action to end the harassment and prevent its recurrence, the school has carried out its responsibility under the Title IX regulations " Though framed as guidance, the 1997 and 2001 documents were promulgated by ED after an opportunity for the public to comment on them  (This does not mean, however, that the documents are legislative rules that carry the force of law; guidance documents generally serve to inform the public about the agency's approach to enforcement of the laws and regulations it administers  ) The 2001 Guidance stated that "unwelcome conduct of a sexual nature" constitutes sexual harassment  It indicated, however, that it aimed to "move away from specific labels for types of sexual harassment " Instead, the 2001 Guidance explained that the crucial issue in each case "is whether the harassment rises to a level that it denies or limits a student's ability to participate in or benefit from the school's program based on sex " In that situation, "harassment has occurred that triggers a school's responsibilities under, or violates, Title IX or its regulations " That said, it went on to describe types of harassment that largely tracked the categories outlined in the 1997 Guidance: quid pro quo harassment and hostile environment harassment  In the former situation, wherein a teacher or employee conditions a benefit or educational decision on a student's submission to unwelcome sexual conduct, such harassment is automatically considered harassment that limits or denies a student's ability to participate in or benefit from the school's program and thus discriminates based on sex in violation of Title IX  Unlike so-called quid pro quo harassment, a case of hostile environment harassment requires a further investigation into whether the conduct is sufficiently serious to limit or deny a student's ability to benefit from or participate in a school's program because of sex  Because fellow students do not generally have positions of authority, student-on-student harassment generally is considered hostile environment harassment rather than quid pro quo harassment, although teachers and employees may also create a hostile environment  The 2001 Guidance explained that, in evaluating whether hostile environment harassment has occurred, OCR examines all circumstances relevant to the situation  This includes whether the conduct in question was welcome  The 2001 Guidance also explained that, in the context of harassment by a teacher or school employee, the extent of a school's responsibilities to address harassment depends on whether the harassment occurs within "the context of the employee's provision of aid, benefits, or services to students" (i e , in the context of their job responsibilities)  With respect to harassment by teachers or employees in the scope of their job responsibilities (or who reasonably appear to be acting in that capacity), assuming the harassment limits or denies a student's ability to benefit from or participate in a school program, a school is responsible for the discriminatory conduct and must stop the behavior, prevent its recurrence, and remedy the effects of harassment for the victim  In such situations, a school is responsible to do this "whether or not" it has notice of the behavior  Whether sexual harassment occurs within the scope of an employee's job responsibilities can depend on a variety of factors  In cases of quid pro quo harassment, the behavior clearly occurs in the scope of an employee's job responsibilities  For hostile environment harassment, OCR will evaluate a number of factors to determine whether the harassment occurred in the context of an employee's job responsibilities  The 2001 Guidance also indicates that sometimes harassment that does not occur within an employee's job responsibilities will be sufficiently serious to create a hostile environment  In these cases, once a school has notice of the behavior, it has a duty to stop the harassment and prevent its recurrence  Likewise, in the context of student-on-student harassment (or harassment by third parties) that creates a hostile environment, the school is responsible for eliminating the environment and preventing its recurrence  However, a school is in violation of Title IX if it has notice of the environment and fails to take "prompt and effective action" to correct the situation  In that case, the school is responsible for ending the harassment, preventing its recurrence, and remedying the effects of harassment for the student that "could reasonably have been prevented" if the school reacted appropriately  As noted above, in certain situations of harassment by a teacher or employee, schools are responsible for harassment even without notice  Otherwise, in cases of sexual harassment by employees, students, or third parties, the 2001 Guidance explains that recipients have notice of a sexually hostile environment if a responsible school employee "knew, or in the exercise of reasonable care, should have known," of the harassment  A responsible employee is "any employee who has the authority to take action to redress the harassment, who has the duty to report to appropriate school officials sexual harassment or any other misconduct by students or employees, or an individual who a student could reasonably believe has this authority or responsibility " Even if a student fails to inform the school or use the appropriate grievance procedures to complain of harassment, a school will be in violation of Title IX if it knows or reasonably should know of a hostile environment  A school is in violation of Title IX if it has notice of a hostile environment and fails to take immediate and effective corrective action  Once a school has notice of potential sexual harassment of students, the 2001 Guidance explained that "it should take immediate and appropriate steps to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again " In cases of reports of harassment by a student, parent of an elementary or secondary student, or harassment observed by a responsible employee, regardless of whether the harassed student, or student's parents, decide to file a formal complaint, "the school must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation " For situations where a school learns of harassment via other means, a variety of factors will determine whether there are reasonable grounds for the school to investigate  If the allegations are confirmed, then a school has a responsibility to respond as described above  The 2001 Guidance also noted that informal mechanisms may sometimes be used to resolve complaints if the parties agree to do so  However, it made clear that certain informal procedures, such as mediation, are not appropriate in certain cases, such as alleged sexual assault  Finally, the Guidance noted that while "the rights established under Title IX must be interpreted consistent with any federal guaranteed due process rights," schools should nevertheless "ensure that steps to accord due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant " In 2011, OCR issued a Dear Colleague Letter that supplemented its 2001 Guidance and focused on the obligations under Title IX for schools that focused exclusively on peer-to-peer harassment, rather than harassment by a teacher  The Letter explained that sexual harassment "is unwelcome conduct of a sexual nature," and includes "unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature " Sexual harassment also includes sexual violence, which refers to "physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent due to the victim's use of drugs or alcohol " Sexual harassment creates a hostile environment "if the conduct is sufficiently serious that it interferes with or limits a student's ability to participate in or benefit from the school's program " When a school "knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects " The Letter also noted that schools will sometimes have an obligation to respond to incidents of sexual harassment that occur "off school grounds, outside a school's education program or activity " And whether or not the conduct occurred, if a student files a complaint, "the school must process the complaint in accordance with its established procedures " Because students can experience the effects of off-campus sexual harassment at school, "schools should consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus " With respect to investigations of sexual harassment allegations, the Letter stated that the standards for liability in the criminal context are distinct from Title IX, and therefore a criminal investigation into allegations of sexual violence does not relieve a school of its duty to conduct a Title IX investigation  It also instructed schools not to wait until the conclusion of a criminal investigation or proceeding to begin their own investigation under Title IX, and if appropriate, to take immediate steps to protect students while a criminal investigation occurs  Although a school may need to temporarily delay an investigation while a criminal fact-finding occurs by police, once the police have finished their fact-finding, the school must promptly resume and complete its fact-finding for Title IX purposes  The 2011 Dear Colleague Letter also outlined various elements of a school's grievance procedures that are critical in order to provide "prompt and equitable resolution of sexual harassment complaints," including sexual violence  The Letter noted "in order for a school's grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard " This standard contrasted with the 2001 Guidance, which did not impose an evidentiary standard on school investigations, as well as the prior practice of some schools, which used a "clear and convincing" standard  A preponderance of the evidence standard, which requires a showing that a fact or event is more likely than not, is lower than a clear and convincing standard, which requires providing the "ultimate factfinder [with] an abiding conviction that the truth of       factual contentions are 'highly probable '" The Letter also strongly discouraged schools from allowing the parties in a hearing to personally cross-examine one another  It noted that if a school allows parties to appeal a finding or remedy, it must do so for both parties  Following requests by schools on how to adequately comply with the 2011 Dear Colleague Letter, ED issued a forty-six-page supplemental Questions and Answers document in 2014 (2014 Q&A) that further explained the responsibilities of schools with regard to allegations of student-on-student sexual violence  It provided more specific instructions to educational institutions regarding their obligations under Title IX  Like the 2011 Dear Colleague Letter, the 2014 Q&A took the form of a guidance document, rather than a legally enforceable legislative rule  The Q&A made clear that when "a school knows or reasonably should know of possible sexual violence, it must take immediate and appropriate steps to investigate or otherwise determine what occurred " It clarified that, in cases of student-on-student sexual violence, a school violates Title IX when (1) "the alleged conduct is sufficiently serious to limit or deny a student's ability to participate in or benefit from the school's educational program" (creating a hostile environment) and (2) "the school, upon notice, fails to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects " The 2014 Q&A also explained that Title IX requires schools, upon notice of an allegation, to protect complainants and ensure their safety through the use of interim steps before an investigation is complete  Among other things, it further specified in detail the requirements of Title IX with respect to the responsibilities of a school's Title IX Coordinator (the employee required by regulation to coordinate a school's compliance with Title IX), the elements expected in a school's written grievance procedures for responding to complaints of sexual violence, and which individuals qualify as responsible employees who are required to report allegations of sexual violence to a school's Title IX Coordinator  The document also detailed the requirements for schools in conducting investigations into alleged sexual violence  It stressed that while a school is permitted to use its own "student disciplinary procedures" to process complaints of sexual violence, that if a school chooses to do so, the imposition of sanctions against a perpetrator, "without additional remedies, likely will not be sufficient to eliminate the hostile environment and prevent recurrence " The 2014 Q&A noted that because Title IX investigations will not result in the incarceration of individuals, "the same procedural protections and legal standards are not required" in Title IX investigations as are compelled in criminal proceedings  Even if a criminal investigation of student-on-student sexual violence is ongoing, a school must conduct its own Title IX investigation  Indeed, the conclusion of a criminal investigation without charges "does not affect a school's Title IX obligations " The document also explained that schools were not required to conduct hearings to assess allegations of sexual violence, but if they did, they could not require the complainant to attend  Further, in the 2014 Q&A, OCR "strongly discourage[d]" schools from allowing parties to personally cross-examine one another because such actions "may be traumatic or intimidating, and may perpetuate a hostile environment " Instead, schools could allow parties to submit questions to a trained third party to ask on their behalf  The third party was advised to screen those questions "and only ask those it deem[ed] appropriate and relevant to the case " In response to the foregoing guidance from ED, as well as increased oversight from OCR between 2011 and 2016, schools developed a variety of procedures to ensure that their responses to allegations of sexual assault complied with Title IX  Generally speaking, the specific type of procedures for investigating allegations of sexual harassment vary considerably across educational institutions  While Title IX provides ED with some discretion in terms of administrative enforcement of the statute's bar on sex-based discrimination, including the ability to require public and private schools to develop certain procedures for handling complaints (as long as those schools receive federal funds), this discretion is constrained with respect to state actors (including public universities) by due process protections that set a baseline for the procedural protections afforded to the accused  In the public university context, a number of students subject to disciplinary sanctions for misconduct thus challenged the disciplinary procedures in state and federal courts as unconstitutional  In particular, a number of students faced with disciplinary action by public universities have raised constitutional challenges to the Title IX procedures used to find them responsible for sexual misconduct, arguing that universities violated the Due Process Clause in the handling of their case  The Due Process Clause of the Fourteenth Amendment requires states to observe certain procedures when depriving individuals of life, liberty, or property  In addition to protecting against the deprivation of an individual's physical property, the Constitution guards against the deprivation of certain "property interests" without due process  The property interests protected by the Due Process Clause are not themselves created by the Constitution; instead, those interests arise from an independent source, such as state or federal law  To have a protected property interest in a government-created benefit, one must show a "legitimate claim of entitlement" that originates in "existing rules or understandings that stem from an independent source such as state law " Likewise, when a state deprives an individual of liberty, states must afford due process to the individual  In fact, when a "person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him," due process may be implicated  In these circumstances, courts often require an accompanying state action that alters or removes a legal status to constitute a deprivation of liberty  Precisely what procedures are constitutionally required before depriving individuals of a protected interest can vary  When deciding what process is due, courts balance three factors enunciated by the Supreme Court in Ma thews v  Eldridge : (1) "the private interest that will be affected by the official action"; (2) the risk of an erroneous deprivation and the probable value of additional procedures; and (3) the interest of the government  In general, the Court has made clear that individuals with a protected interest are entitled to notice of the proposed action and a "meaningful opportunity to be heard" before the state may deprive them of that interest  The Supreme Court has explained, however, that due process is not a "technical conception with a fixed content unrelated to time, place, and circumstances " Instead, the concept is "flexible and calls for such procedural protections as the particular situation demands " In conducting the balancing of factors pursuant to  M athews v  Eldridge , the severity of the deprivation is a key factor in determining what procedures are constitutionally required  In general, the stronger the private interest at risk of deprivation, the more formal and exacting procedures will be required by courts  The only Supreme Court case to focus on procedural due process in the (nonacademic) student discipline context is Goss v  Lopez   In that case, high school students challenged their suspension from school for up to 10 days without a hearing  The Court first ruled that the public school students had a "legitimate entitlement to a public education," which was a property interest protected by due process; and that interest was deprived by the suspension  As to the process required, the Court ruled that, at a minimum, "students facing suspension       must be given some kind of notice and some kind of hearing " The Court also clarified that cases of more stringent sanctions, such as suspensions beyond 10 days or expulsions, "may require more formal procedures " Generally speaking, because public universities constitute state actors subject to the Due Process Clause, they must comply with constitutional standards when suspending or expelling students  Private universities, on the other hand, do not  The Supreme Court has assumed, without deciding on the merits, that students of public universities enjoy a "constitutionally protectable property right" in their continued enrollment in an educational institution  A number of federal courts of appeals have ruled that students enrolled in public universities have liberty and/or property interests in their education and that expulsion and certain suspensions can constitute a deprivation of that interest  As discussed in further detail below, as a baseline matter, federal courts have held that due process requires public schools to provide students with notice of the charges against them, the evidence used to make a determination, and the ability to present their side of the story to an unbiased decisionmaker  Of course, whether a public university has afforded a student due process "is a fact-intensive inquiry and the procedures required to satisfy due process will necessarily vary depending on the particular circumstances of each case " While colleges and universities have developed various procedures to comply with OCR's guidance regarding an institution's response to allegations of sexual harassment, a number of individuals subject to these disciplinary processes have challenged some of these procedures in federal court  Several courts have since issued decisions in cases brought by students asserting a due process violation in the context of a Title IX investigation or adjudicatory proceeding  The following section discusses recent notable judicial rulings that address the constitutionality of disciplinary proceedings in the context of sexual misconduct  The discussion below is organized by the type of claim raised against the public university: 1  the university failed to provide adequate notice of the charges against the student; 2  the university did not permit the accused student to confront and challenge the credibility of witnesses who testified against him; 3  the university allowed biased decisionmakers to oversee the proceedings; and 4  the university employed unfair review processes when rehearing an allegation brought by a complainant  Importantly, some of the judicial rulings discussed below address whether a student's stated claim is sufficient to survive a motion to dismiss and do not reach conclusive determinations about the evidence sufficient to establish a due process violation  One type of legal challenge raised by students accused of sexual misconduct is that the public universities failed to adequately notify them of the charges  As an initial matter, reviewing courts have taken the view that there generally will be no due process violation on notice grounds when the school (1) provides a student with timely notice of the actual, full charges against him; and (2) provides the accused student with a meaningful opportunity to prepare for the disciplinary hearing against him  The absence of such protocols, however, can form the basis of a viable due process claim  For example, at one university, an accused student alleged that he was interviewed by a school staff member assigned to investigate charges of sexual misconduct against him without first being notified of the existence of the sexual misconduct allegation  The student was eventually suspended from the university  A federal district court ruled that, given the severity of the suspension (three years), the lack of notice could amount to a due process violation  The court thus held that the student had stated a claim sufficient to survive a motion to dismiss  In another case, an accused student alleged that he was not given adequate notice of the scope of charges against him  Rather, the school only notified him that his conduct on a particular day was under review, but expelled him for sexual misconduct that occurred in relation to other incidents and dates  The federal district court ruled that "[b]y conveying a limited scope of focus to plaintiff, defendants prejudiced plaintiff's ability to mount an effective defense, which increased the possibility of an erroneous outcome " Taken together with other procedural issues in the school's investigation and decision, the court concluded that the school had deprived the student of a liberty interest without due process of law  Similarly, the Sixth Circuit ruled that a student suspended by a university because of suspected sexual assault had sufficiently pleaded a due process violation when the university allegedly did not make available the evidence used in its disciplinary decision against him  The university's Title IX investigator compiled an investigatory report, which was allegedly used by the school's disciplinary hearing panel to adjudicate the student's case  However, the investigator failed to provide the report to the defendant  The court reasoned that the Constitution requires that a school provide the evidence used against a student in the context of significant disciplinary decisions and that a failure to do so constitutes a due process violation  A number of students have brought claims alleging a denial of due process because they were not afforded the opportunity to cross-examine witnesses in school disciplinary hearings  Courts have often rejected these arguments, however, in both sexual harassment proceedings and other disciplinary hearings, noting that the rights of students in disciplinary proceedings are not the same as those of criminal defendants  Case law reflects that courts have been more willing to entertain such claims when students have been denied an opportunity to challenge the credibility of witnesses where a witness's testimony concerns disputed and critical facts  As a general matter, cross-examination has not been regarded as a necessary feature of due process in the civil context  Even outside the context of sexual harassment allegations, courts have often denied due process challenges to university adjudicatory proceedings where students were not permitted to directly cross-examine witnesses, noting that the Due Process Clause does not guarantee the right to cross-examination in school disciplinary proceedings  This principle has been applied in recent cases alleging due process violations in the sexual harassment context  In one case, students challenged a university's adjudicatory proceedings regarding allegations of sexual assault, where accused students were permitted to submit written questions to a panel chair rather than directly to the complainant  The reviewing district court nonetheless rejected a due process challenge to the proceedings  Similarly, the Sixth Circuit denied a due process challenge to a university's disciplinary hearing concerning sexual assault allegations where students were not permitted to directly cross-examine their accuser  The students were permitted to submit written questions to the hearing panel, but were not permitted to submit any follow-up questions, and the panel failed to ask all of the questions they submitted  The circuit court reasoned that the proceedings satisfied the "limited" requirement of cross-examination where credibility is at issue, as the "marginal benefit that would accrue to the fact-finding process by allowing follow-up questions … is vastly outweighed by the burden" on the school  Likewise, the Fifth Circuit rejected a due process challenge to a university's disciplinary proceedings where the challengers argued they were denied the ability to effectively cross-examine witnesses and confront their accuser  In that case, the court noted that the school's decision did not rest on testimonial evidence, but on the videos and a photo taken and distributed by one of the challengers  Where a credibility determination was critical to the outcome of a proceeding, however, courts have often ruled in favor of due process challenges  For instance, the Sixth Circuit held that a university violated due process when it failed to provide any form of cross-examination in the hearing and the disciplinary decision necessarily rested on a credibility determination  In that case, the university based its decision to suspend a student entirely on the hearsay statement of the complainant, who did not appear at the disciplinary hearing  Importantly, the court noted that the suspended student only requested the additional procedure of posing questions to his accuser through the hearing panel, but he did not ask for the opportunity to directly cross-examine her  The court concluded that in such circumstances, some method must be made available to the adjudicative body to "assess the demeanor of both the accused and his accuser " The court concluded this procedure was necessary to comport with due process when the university's decision rested on a credibility determination  Likewise, the absence of a live hearing may sometimes form the basis of a viable due process claim  For instance, one federal district court ordered a university to provide an accused student facing the possibility of expulsion with a live hearing in order to comply with due process  In that case, the university's procedures for handling sexual misconduct allegations involved an investigator who would meet separately with the parties, conduct interviews with witnesses, and eventually reach a determination as to culpability without any opportunity for a hearing  The court reasoned that due to "the University's method of private questioning through the investigator, Plaintiff has no way of knowing which questions are actually being asked of Claimant or her response to those questions " Accordingly, the court concluded that the university violated the accused student's right to due process  Similarly, the Sixth Circuit has ruled that where credibility is at issue, a university "must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder " In that case, a university investigator concluded that the evidence supporting a finding of sexual misconduct was not sufficient, but the university's appeals board reversed after reviewing the report because it found the description of events given by the alleged victim and adverse witnesses more persuasive  At no time was the accused student given a live hearing or a chance to cross-examine his accuser or any adverse witnesses  The Sixth Circuit ruled that because the university ultimately had to "choose between competing narratives" in order to resolve the case, due process required a chance to cross-examine his accuser and adverse witnesses before a neutral fact-finder  Some students have also brought due process claims alleging that they were denied the ability to offer exculpatory evidence on their own behalf  Courts appear to examine such claims on a largely fact-specific basis  For instance, in one suit brought against a university, a student alleged he was denied the opportunity to present physical exculpatory evidence on his own behalf at a sexual assault disciplinary hearing  Specifically, the student claimed he was unable to present text messages at his hearing that he claimed would exonerate him  The district court ruled that this allegation raised concerns that he was denied due process  Students subject to disciplinary proceedings regarding sexual harassment or assault at institutions of higher education have also brought challenges alleging that a decisionmaker was biased against them  As a threshold matter, courts generally assume that school disciplinary panels are "entitled to a presumption of impartiality, absent a showing of actual bias " A plaintiff must generally allege facts sufficient to overcome this baseline presumption, such as statements by decisionmakers or a pattern of decisionmaking evidencing bias  For instance, a Fifth Circuit panel rejected a due process claim alleging bias in a university disciplinary hearing concerning sexual assault because the challengers failed to show how the integrity of the proceedings was undermined  In that case, the individual tasked as a victim advocate for the school investigated the charges against the accused and advised the panel members who made the disciplinary decision  The court reasoned that the investigator relied on photo and video evidence to render his findings to the panel and "there is nothing in the record       to suggest that a different investigator would have uncovered information diminishing the significance of that graphic evidence to the initial findings " Further, a separate university attorney advised the panel that they were free to draw their own conclusions from the proffered evidence  Evidence of bias in the consequential behavior or statements of decisionmakers, however, may give rise to a viable due process challenge  For example, the Sixth Circuit recently held that a student sufficiently pleaded a due process claim where he alleged that a university disciplinary hearing for alleged sexual assault was biased against him  In that case, one of the hearing panel members acted as investigator, prosecutor, and judge  The court noted that that fact alone did not give rise to a due process violation  Rather, because that individual also allegedly dominated the panel with remarks intended to reduce the defendant's credibility, and reportedly said during the hearing, "I'll bet you do this [commit sexual assault] all the time," the student had plausibly alleged that the hearing panel member was not impartial and had pre-judged his case  Courts have also addressed claims alleging a due process violation for bias based on institutional pressures, such as the sexual assault training received by university officials  For example, one district court rejected a due process claim which argued that university staff members were biased because they received sexual assault training that was not balanced with training for protecting the due process rights of accused students  The court reasoned that it was a "laudable goal" for the university to raise awareness of sexual assault and increase sensitivity to problems that victims of sexual violence experience  Plaintiffs' mere belief that the school "ha[d] a practice of railroading students accused of sexual misconduct simply to appease the Department of Education and preserve its federal funding" was unsupported by any evidence  In contrast, another district court rejected a motion to dismiss a due process claim brought by an expelled student alleging that the investigation and training materials given to the panel who decided his case were biased  The court reasoned that while this was a "he-said/she-said" case, "there seems to have been an assumption under [the] training materials that an assault occurred  As a result, there is a question whether the panel was trained to ignore some of the alleged deficiencies in the investigation and official report the panel considered " Accordingly, the court concluded that there may have been a due process violation because it was "plausible that the scales were tipped" against the accused student  Finally, a number of federal district court cases have addressed allegations that a university's disciplinary proceedings violated due process on the basis of unfair review processes for rehearing appeals  In one district court case, a student was cleared by a hearing panel on a charge of sexual assault, but the university ordered a new hearing, apparently premised only on the school being unable to adequately prove its case in the first hearing  The district court found this to be fundamentally unfair to the student and ruled that the allegations survived the university's motion to dismiss  Similarly, in another district court case, a suspended student challenged the validity of a school's procedures where he was initially found not responsible for sexual misconduct by a hearing board, but was later determined guilty after the complainant appealed that decision  At the administrative appeal stage, the school did not give the defendant sufficient notice of, or time to respond to, new evidence against him; did not provide him with details of the identity of a woman he was newly accused of assaulting; did not tell him the names of the members of the appeal board; did not give him notice of the appeal board's meeting; and did not permit him to attend that meeting  The appeals board reversed the initial hearing board's determination that the student was not responsible for sexual misconduct, without explanation, and without any oral presentations or live testimony  The reviewing federal district court ruled that the school failed to provide the student with a meaningful hearing  Likewise, a student brought a claim in federal district court against a university after being expelled for sexual assault even though he had been found not responsible by an initial hearing panel  In that case the school permitted a rehearing after the complainant appealed the initial hearing panel's decision, and subsequently the individual presiding over the appeal expelled the student  The individual presiding over the appeal conducted off-the-record and ex parte meetings with the accuser and failed to deliver the accused student a record of those meetings  According to the reviewing court, by the time the student was permitted to present his defense, the individual overseeing his appeal had pre-judged the case, and expelled the accused student without providing a basis for the decision  The court ruled that these procedural inadequacies, combined with a failure to offer the student notice of the full scope of allegations against him, combined to constitute a due process violation  With the foregoing considerations in the background, in September 2017 OCR withdrew the 2011 Dear Colleague Letter and 2014 Questions and Answers document  ED explained that it would begin the rulemaking process to codify a school's responsibilities under Title IX  In the interim, ED stated that it would continue to rely on the 2001 Guidance; it also issued a new Question and Answer document indicating how the department would address sexual misconduct during that time  The document notifies schools that they may, in certain circumstances, resolve complaints through mediation  It also notifies schools that they may choose to allow appeals either by both parties or solely by the party found to have committed sexual misconduct and not the alleged victim  On November 29, 2018, ED issued a notice of proposed rulemaking in the Federal Register   If adopted, the proposal would significantly alter the responsibilities of schools in responding to allegations of sexual harassment  Among other things, the proposed regulation would (1) define in narrower terms what conduct qualifies as sexual harassment under Title IX; (2) require "actual notice" of harassment, rather than constructive notice, to trigger a school's Title IX responsibilities; (3) provide that a school's response to allegations of sexual harassment will violate the statute only if amounting to deliberate indifference; and (4) impose new procedural requirements that reflect concern for due process when schools investigate allegations and make determinations of culpability  The proposed regulation would first define sexual harassment in the following ways: an employee conditioning the provision of a benefit, service, or aid on the individual's participation in unwelcome sexual conduct (i e , quid pro quo); "unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity" (i e , hostile environment); or sexual assault (as defined in regulations implementing the Clery Act)  Notably, among the changes to past definitions of sexual harassment issued by ED, the proposal would establish a higher threshold to show a Title IX violation based on hostile environment harassment than that required by ED in the past  As explained in an earlier section of this report, ED's 2001 Guidance described hostile environment harassment as sexually harassing "conduct [that] is sufficiently serious to deny or limit a student's ability to participate in or benefit from the school's program based on sex " The proposed regulations would instead generally adopt the standard for actionable harassment that the Supreme Court's 1999 Davis decision applied in the context of private suits for damages: "unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity " In other words, whereas ED previously defined a hostile environment harassment as harassment that is "sufficiently serious to limit" a student's ability to benefit from or participate in a school's program, the proposed regulations would define a hostile environment as one "that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity " Second, in a departure from past administrative practice, in which ED considered "constructive notice" (i e , known or should have known) to trigger a school's responsibilities in cases of student-on-student harassment, and did not impose a notice requirement in certain cases of harassment by a teacher or employee, the proposal would establish that a school has a duty to respond to allegations of sexual harassment only when it has "actual knowledge " Actual knowledge is defined as notice of harassment (or allegation of harassment) to a school's Title IX Coordinator or official with authority to institute corrective measures; the regulations explicitly reject imputing knowledge to a school based on respondeat superior or constructive notice  Notably, in contrast to past guidance from ED, the mere ability or obligation to report by a school employee does not qualify them as one who possesses authority to institute corrective measures  The proposal explains that this threshold for triggering a school's obligations is intended to align the administrative standard imposed by ED with that articulated by the Supreme Court in Gebser and Davis in the context of private litigation seeking money damages  Further, the proposed regulations would compel schools to respond only to sexual harassment that occurs within a school's "education program or activity " This contrasts with past ED guidance which provided that schools sometimes will be responsible to respond to harassment that occurs "outside a school's education program or activity " For instance, past ED guidance (since rescinded) required schools to "process all complaints of sexual violence, regardless of where the conduct occurred," in order to determine if the conduct has effects on campus  In another departure from prior administrative practice, in which ED judged a school's response under a "reasonableness" standard, the proposed regulations only require a school to respond in a manner that is not "deliberately indifferent " Deliberate indifference is a "response to sexual harassment [that] is clearly unreasonable in light of the known circumstances " Once again, this would tether a school's responsibility to that announced by the Court in Davis in the context of private suits for damages  The proposal explains that, for ED, this standard aptly holds schools accountable while allowing for flexibility in making disciplinary decisions  The proposal outlines three situations in which a safe harbor is provided to a school from a finding of deliberate indifference  First, when a formal Title IX complaint is made (by a complainant or Title IX Coordinator), the proposed regulations outline a number of grievance procedures (outlined below) that schools must follow  When a school follows these procedures it would not be deliberately indifferent and has not discriminated under Title IX  Second, if a school has actual knowledge of harassment because of multiple complainants, the Title IX Coordinator must file a complaint  Again, compliance with the grievance procedures would negate any inference of deliberate indifference in this situation  Third, with respect to institutions of higher education, and in situations where there is not a formal complaint, a school would not be deliberately indifferent if it offers and implements supportive measures to the complainant that are aimed to restore or preserve the complainant's access to a school's education program or activity  The school must also at this time notify the complainant in writing of the right to file a formal complaint  As long as an institution of higher education follows these requirements, it would not be deliberately indifferent  Aside from these three situations, the proposed regulations provide that a school with actual knowledge of sexual harassment in an education program or activity must respond in a manner that is not deliberately indifferent  The proposal would also allow schools to remove an individual accused of sexual harassment from an educational program or activity on an emergency basis  However, a school must conduct an individualized risk and safety analysis, determine that the removal is justified because of an immediate threat to students or employees, and provide the accused with notice and an opportunity to challenge the decision  The regulations also allow schools to place a nonstudent employee on administrative leave during an investigation  A significant component of the proposal reflects concern that schools provide accused students with due process protections during the fact-finding process and ultimate determination of culpability  As a threshold matter, schools must investigate allegations received in a formal complaint, but if the alleged conduct would not (if proved) constitute sexual harassment under the regulations, or if it did not occur within a sch ool's program or activity, the complaint must be dismissed  Upon receipt of a formal Title IX complaint regarding sexual harassment, a school must provide written notice to the relevant parties of the allegations, including notice of the available grievance procedures, and notice of the allegations constituting a potential violation, "including sufficient details known at the time and with sufficient time to prepare a response before any initial interview " A school's grievance procedures must treat complainants and respondents equitably, which means that a school must both provide remedies for complainants upon a finding of sexual harassment as well as due process protections for a respondent before any sanctions are imposed  The proposal would provide that a school's treatment of a complainant in response to a formal complaint of harassment can constitute discrimination in violation of Title IX; likewise, a school's treatment of a respondent can discriminate on the basis of sex in violation of Title IX  The procedures must also require an objective evaluation of evidence (both inculpatory and exculpatory) and provide that credibility determinations not be made based on one's status; require that individuals involved in the investigation or decisionmaking process not be biased and receive training on ensuring student safety and providing due process for all parties; include a presumption that respondents are not guilty until proven otherwise; and describe the range of possible sanctions and remedies available, the standard of evidence used, the ability to appeal (if offered) and the range of available supportive measures  With respect to a school's actual investigation of alleged harassment, the proposed regulations require that a school must: place the burden of proof and of gathering evidence on the school (rather than either party); allow each party equal opportunity to present witnesses and evidence; not restrict parties from gathering and presenting relevant evidence or from discussing the allegations; permit both parties equally to have their choice of advisor or other person join them during proceedings, although the school may restrict an advisor's participation so long as restrictions apply equally to both parties; provide parties with written notice of the relevant details of hearings and interviews and allow sufficient time to prepare; for institutions of higher education, provide a live hearing where the decisionmaker must allow each party to ask the other party and witnesses all relevant questions (and follow-up questions) including those that challenge one's credibility; cross-examination must be done by the party's advisor; at the request of either party, schools must allow for cross-examination via technology with the parties in separated rooms; decisionmakers must not rely on any party or witness's statement if they do not submit to cross-examination; allow both parties an equal opportunity to review evidence from the investigation that is directly related to the allegations; and develop a report summarizing the relevant evidence and provide this to the parties at least 10 days prior to a hearing (or time where responsibility is determined)  Notably, these requirements depart from past ED guidance by requiring, for institutions of higher education, a quasi-judicial proceeding in the form of a live hearing  Each party may question the other side, and cross-examination must be conducted by a party's advisor  The proposed regulations would also significantly alter the ultimate decisionmaking requirements for schools  For instance, the decisionmaker in a proceeding may not be the investigator or the school's Title IX Coordinator  This would bar the practice of some universities that have used a single investigator to both examine allegations and reach a decision regarding culpability  And in contrast to past guidance from ED, the new regulations permit schools to apply either a preponderance of the evidence standard or a clear and convincing standard  However, schools may apply the former only if they use that same standard for conduct violations other than sexual harassment that carry the same maximum disciplinary penalty  Further, schools must apply the same standard of evidence for complaints against students as it does for employees and faculty  A schools may, but is not required to, allow appeals of decisions  If it does so, it must allow both parties to appeal  A school may also, at any point before reaching a final determination, facilitate an informal resolution process as long as it obtains the parties' written consent and notifies them of the requirements of the process  As discussed above, the antidiscrimination mandate of Title IX, enacted in 1972, prohibits discrimination "on the basis of sex" in educational programs in general terms  The statute does not expressly refer to or address sex discrimination in the form of sexual abuse, sexual harassment, or sexual assault  Nor does the statute address when, by whom, or under what circumstances such conduct will amount to a Title IX violation  Given the statute's silence on these issues, federal courts have largely determined when relief is available for individual victims of sexual abuse or harassment  Indeed, in creating the remedial scheme for a private right of action to address such claims, the Supreme Court sought to "'infer how the [1972] Congress would have addressed the issue'" if there had been an express provision in the statute, an approach that the Court observed "inherently entails a degree of speculation, since it addresses an issue on which Congress has not specifically spoken " Likewise, given the sparse statutory language, federal agencies have issued shifting guidelines at to the responsibilities of educational institutions in complying with Title IX  As a general matter, Congress enjoys substantial discretion to modify the terms of Title IX to clarify the appropriate standard in private suits for damages as well as in the administrative enforcement context  Congress could, for instance, amend Title IX to define the specific conduct that amounts to a violation of the statute regarding sexual abuse or harassment  In addition, an amendment could also clarify whether liability for harassment should be handled differently in elementary and secondary schools, as opposed to the university context  Likewise, legislation could distinguish between harassment by teachers from that between students  Further, because the private right of action under Title IX has been judicially implied, rather than expressly codified in statute, Congress could modify the legal standards that apply in a private suit for damages  Finally, aside from directly amending Title IX, Congress could also direct federal agencies to alter their administrative enforcement of the statute  For example, Congress could direct ED to promulgate regulations that distinguish between various types of sexual harassment or treat harassment differently depending on the context 


Report 2: The U S  government engages with the governments of other countries in the Western Hemisphere through various inter-American organizations including the OAS, PAHO, IICA, and PAIGH  According to State, the OAS is the primary inter-American political forum through which the United States engages with other countries in the Western Hemisphere to promote democracy, human rights, security, and development  PAHO serves as the Regional Office for the Americas of the World Health Organization, the United Nations agency on health  IICA supports agricultural development and rural well-being through technical cooperation and the execution of agricultural projects throughout the hemisphere  PAIGH specializes in regional cartography, geography, history, and geophysics and has facilitated the settlement of regional border disputes  According to U S  agency officials, the organizations’ regional knowledge and technical expertise make them effective implementing partners for projects serving U S  national interests and priorities throughout the hemisphere  Member states collectively finance these organizations by providing assessed and voluntary contributions (see table 1)  For each organization, its member states’ assessed contributions are intended to finance the organization’s regular budgets, which generally cover the organization’s day-to-day operating expenses, such as facilities and salaries  Member states also finance certain OAS, PAHO, and IICA activities and projects through voluntary contributions  According to U S  officials, the United States provides voluntary contributions to the OAS, PAHO, and IICA primarily through assistance agreements for specific projects from State, USAID, HHS, and USDA  The Institute of Internal Auditors (IIA) provides the framework for international organizations to oversee funds such as the assessed contributions provided by member states to OAS, PAHO, IICA, and PAIGH  The institute’s authoritative guidance, International Standards for the Professional Practice of Internal Auditing, includes mandatory performance standards that describe the nature of internal audit activities and provide criteria for evaluating these activities  Organizations are required to subscribe to these IIA standards, according to PAIGH officials and OAS, PAHO, and IICA documents  Assistance agreements are a critical tool the U S  government uses to achieve important national objectives  As we have previously reported, effective oversight and internal control are important to provide reasonable assurance to federal managers and taxpayers that assistance agreements are awarded properly, recipients are eligible, and federal funds are used as intended and in accordance with applicable laws and regulations  State, USAID, HHS, and USDA oversee funds provided to OAS, PAHO, and IICA through assistance agreements using monitoring activities such as financial and performance reports  Within each of these agencies, various bureaus and offices are responsible for awarding and managing assistance agreements to these inter-American organizations, including State’s Office of Weapons Removal and Abatement in the Bureau of Political-Military Affairs, USAID’s Office of U S  Foreign Disaster Assistance, HHS’s Centers for Disease Control and Prevention and its Food and Drug Administration, and USDA’s Animal and Plant Health Inspection Service  The documentation of these monitoring activities as called for by federal standards for internal control enables the agencies to determine the effectiveness of the agreement activity  We found that the strategic goals of the four inter-American organizations are predominantly aligned with the high-level strategic goals for the Western Hemisphere documented by State, USAID, HHS, and USDA  According to officials, the agencies all consider U S  strategic goals when deciding which projects to fund at OAS, PAHO, and IICA  State, USAID, HHS, and USDA have goals for foreign assistance to the Western Hemisphere, as shown in table 2  For example, four of the five goals in State and USAID’s Joint Strategy correspond with goals at the OAS, IICA, and PAIGH  U S  agencies, on an ongoing basis, evaluate each inter- American organization to ensure U S  and organization goals are aligned  Officials from all four agencies provided examples of how they help to ensure alignment of U S  strategic goals when funding projects at OAS, PAHO, and IICA  State: According to State officials, State created an Annual Performance and Budget Review process in 2014 specifically to review entities, such as the OAS, that receive voluntary contributions funded through the International Organization and Programs account  This process examines performance of State-funded activities relative to those activities from the previous year and the extent to which the activities advance U S  priorities and objectives  State officials further noted that the Annual Performance and Budget Review helps inform State’s decision-making on what to include in the following year’s budget request  For example, during the 2016 review for the OAS Development Assistance Program, State reported the program’s significant activities, funds expended, and achievements such as training government officials on successful small business policies in the United States  USAID: According to USAID officials, USAID’s project design and approval policies and procedures ensure that all USAID-funded activities are linked to applicable U S  and USAID strategies  USAID’s agency guidance requires, at a minimum, that each project or activity must be formally approved in writing by the relevant Mission Director or Principal Officer for a given program  Officials stated that this approval memo and supporting documentation address a number of planning considerations, including how the proposed activity aligns with broader strategies  Furthermore, officials stated that USAID’s lawyers review project approval documentation prior to final approval and verify that the activity complies with all applicable statutes, regulations, and policies  HHS: According to HHS officials, HHS engages with PAHO on its Biennial Work Plans, which are operational planning instruments that PAHO uses to identify activities that it can implement within each of its member states  HHS officials noted that they use PAHO’s Biennial Work Plan to strengthen U S  approaches on issues of common concern and to advance U S  priorities within the region  According to HHS officials, proposals for technical cooperation projects are required to correspond to one of the technical priorities in PAHO’s strategic plan for 2014–2019 and to be aligned with the HHS global strategy and U S  priorities  USDA: USDA officials said that they compare the U S  strategic goals with IICA’s goals and objectives when they formulate project proposals with IICA to ensure that the projects are aligned with U S  priorities for the region  Additionally, USDA officials told us that USDA helped shape and influence IICA’s recent 10-year strategic plan, ensuring that IICA’s strategic objectives were closely aligned with U S  strategic goals  OAS, PAHO, IICA, and PAIGH have established mechanisms for overseeing their use of assessed and voluntary contributions, such as external auditors and internal audit boards as required by IIA standards  State and USDA have directly supported these oversight mechanisms  OAS, PAHO, IICA, and PAIGH have oversight mechanisms, as shown in table 3  The four organizations follow the internal control standards of the IIA, codified in the International Standards for the Professional Practice of Internal Auditing, according to PAIGH officials and OAS, PAHO, and IICA documents  All four organizations have internal and external auditors, as required by these standards  Furthermore, OAS, PAHO, and IICA have additional oversight mechanisms, such as anti-fraud policies and program evaluation processes  The officials we interviewed from State, USAID, HHS, and USDA expressed confidence in the four organizations’ management of their assessed and voluntary contributions  All four organizations document the status of their financial and internal control activities in audit reports posted on their public websites  For example, the OAS Office of the Inspector General’s April 2017 Annual Report included an update on its five ongoing audits and investigations  The report also outlined progress made against prior recommendations  U S  agency officials support budget and administrative subcommittees in three of the four organizations and promote the participation of U S  experts on independent audit committees, as shown in table 4  For example, according to officials, State plays a significant role in promoting policies on oversight and accountability at the four organizations through formal engagement in deliberations and decision-making of each organization’s governing body and through informal engagement with other member states and the secretariat by recommending best practices in governance, management, and oversight  State and USDA are also directly involved in implementing some of the additional oversight mechanisms at the organizations  For example, a USDA official serves as a member of IICA’s Audit Review Committee  Additionally, an IICA official told us the United States was involved in defining IICA’s Convention and Rules of Procedure for its governing bodies, which established the requirement for internal and external auditing  According to State officials, the United States led efforts to strengthen oversight at several of the organizations under review in recent years, such as advocating for the creation of an ethics officer position at PAHO, proposing language to strengthen the authority and independence of the OAS’s Office of the Inspector General, and encouraging the creation of audit committees at both organizations  In addition, State has played a lead role in supporting the ongoing reform of the OAS administration, which includes improved oversight and accountability, according to officials from the OAS and the U S  Mission to the OAS  We reviewed 12 selected assistance agreements that the four U S  agencies awarded to OAS, PAHO, and IICA that were active during calendar years 2014 through 2016, and found that two agencies did not consistently include all key monitoring provisions in their agreements  While HHS and USAID implemented applicable guidance by including all key monitoring provisions in their agreements, USDA and State did not do so  USDA and State agency officials did not explain why USDA and State did not include these monitoring provisions in their agreements  However, State has since taken corrective action to ensure that they are included in future agreements, according to State officials  Applicable agency guidance calls for agencies to conduct monitoring activities as part of their oversight of their agreements  Each of the four agencies has established agency-specific guidance that outlines the monitoring activities for assistance agreements  In some cases, the agency-specific guidance may mandate additional monitoring activities beyond those called for in applicable federal regulations, such as risk assessments  For example, State’s guidance calls for the creation of a monitoring plan  Federal standards for internal control require that agencies include in agreements all key provisions delineating the parties’ responsibilities  For the 12 agreements we reviewed, the number of total key monitoring provisions per agreement varied—including within one agency—depending on when the agency issued and updated its guidance relative to when the agreements were approved  Federal standards for internal control call for agencies to document internal controls, transactions, and significant events  Specifically, internal control standards state that agency management should include internal control activities (e g , monitoring activities) in policies or directives for transactions such as assistance agreements  For the 12 assistance agreements we reviewed, USDA and State did not include provisions implementing 6 of the 55 total (11 percent) applicable monitoring activities required by applicable guidance to carry out required monitoring activities (see table 5)  State took corrective action in 2015 by issuing a standard operating procedure  USDA: USDA did not include 4 of the 13 key monitoring provisions implementing the applicable guidance for the three USDA agreements we reviewed (see table 6)  Two of the agreements and supporting documentation each included all four key applicable monitoring provisions  However, Agreement 2 in the table did not include 4 of the 5 monitoring provisions in the agreement or work plan, which documents the monitoring provisions  The agreement partially included performance goals, because it included objectives for the agreement’s activities, but did not include time frames to complete all of the activities  The USDA grant official did not explain why the work plan did not adhere to applicable federal regulations when it was drafted and approved  State: State did not include 2 of the 21 key monitoring provisions implementing the applicable guidance for the three State agreements we reviewed (see table 7)  Two of the agreements and supporting documentation we reviewed included the 7 monitoring provisions implementing the requirements in the applicable agency guidance  However, one agreement awarded in 2012 did not include 2 of the provisions: a risk assessment and a monitoring plan  That office that awarded this agreement took corrective action in 2015 by issuing a standard operating procedure requiring that risk assessments and monitoring plans accompany its grants and cooperative agreements  USAID: USAID included both key monitoring provisions implementing the applicable guidance for the three USAID agreements we reviewed (see table 8)  USAID’s Automated Directives System 308, Standard Provisions for Cost-Type Awards to Public International Organizations contains two key monitoring provisions for agreements  USAID incorporated the monitoring provisions nearly verbatim into the agreements we reviewed, using templates from this guidance for required terms and conditions  HHS: HHS included the 15 monitoring provisions implementing the applicable guidance for the three HHS agreements we reviewed (see table 9)  None of the agencies provided us with full documentation to demonstrate their adherence to the required monitoring activities called for in all of their agreements that we reviewed, including the previously mentioned key monitoring provisions that we reviewed  State and HHS have taken corrective actions to address the gaps we found in documentation for the agreements we reviewed  Agency officials told us that they use these monitoring documents, such as financial and progress reports, to inform future budgetary and programmatic decisions  Therefore, they may lack information needed to make such decisions if they do not have access to complete monitoring documentation  According to federal standards for internal control, each agency is to include key monitoring provisions as part of its agreements  In the individual assistance agreements, the agencies specify the requirements to fulfill these activities, such as requiring financial reports on a quarterly basis or including specific information in performance reports  Grants officers at times, if they deem it necessary or appropriate, include additional monitoring provisions requiring activities beyond those required by the applicable guidance, such as site visits  Federal standards for internal control call for agency management to design monitoring activities, such as financial and performance reporting, so that all transactions are completely and accurately recorded  Recording these activities maintains their relevance and value to management in controlling operations and making decisions  Without access to complete monitoring documentation, the agencies risk weakening the effectiveness of these controls  None of the four U S  agencies had full documentation of all of the monitoring activities required by their agreements we reviewed (see table 10)  The agencies did not have full documentation of monitoring activities for 9 of the 12 agreements we reviewed  For the 42 monitoring activities identified across all of the individual agreements, the four agencies did not have full documentation of 18 of the activities (43 percent)  However, State took corrective action in May 2017 to address its gaps in documentation, and according to HHS officials, the Food and Drug Administration addressed its gap in documentation by implementing its agreement monitoring program in fiscal year 2018  USDA did not have full documentation of any of the 10 monitoring activities we identified (see table 11)  USDA demonstrated that it had partially documented 2 of the 10 monitoring activities (20 percent) by providing us with some, but not all, quarterly performance reports  For one of the agreements, USDA had no documentation of the monitoring activities for that agreement  For its other two agreements, USDA did not have full documentation of the required monitoring activities  USDA officials did not explain why they did not have full documentation  Without full documentation of the required monitoring activities, USDA may not have the information it needs to make appropriate budgetary and programmatic decisions  USAID did not have full documentation of 2 of the 11 total monitoring activities (18 percent) we identified across the three agreements we reviewed (see table 12)  USAID had partial documentation of those 2 monitoring activities  For example, USAID provided us with some, but not all, records such as financial reports required by the terms of the monitoring activities in the agreements  According to USAID officials, the agencies’ lack of complete monitoring documentation was in part due to agency officials not following some of their agency’s requirements for managing agreement documents, such as placing all documents in a shared document management system  For example, for one of the agreements we reviewed, USAID officials stated that they stored some agreement documentation electronically—such as modifications, correspondence with the agreement recipient, and quarterly financial reports—but primarily maintained paper files  USAID officials told us they use the monitoring documents of these agreements, such as financial and progress reports, to inform future budgetary and programmatic decisions  For example, according to USAID officials, USAID uses monitoring documents to identify and address potential project delays or other “red flags ” For one of the agreements we reviewed, USAID officials stated these monitoring reports also assist them in determining whether to award additional funds and establish new indicators in subsequent agreements  Without full documentation of the required monitoring activities, USAID may not have the information it needs to make appropriate budgetary and programmatic decisions  State did not have full documentation for 5 of the 16 monitoring activities (31 percent) we identified across the three agreements we reviewed (see table 13)  However, State had partial documentation of 4 of those 5 monitoring activities  For example, State had some, but not all, records such as standard reporting metrics, required by the terms of the monitoring activities in one of the agreements  State did not have documentation of one of the monitoring activities (site visits)  According to State officials, the agency’s lack of complete monitoring documentation was in part due to agency officials not following some of the agency’s requirements for managing agreement documents, such as placing all documents in a shared document management system  For example, according to State officials, for one of the agreements we reviewed, the grants officer mistakenly had saved site visit reports and similar documents to personal folders because the officer did not know how to use State’s grant document storage system  As a result, neither the current grants officer nor other State officials could retrieve these documents  In May 2017, after awarding the agreements we reviewed, State took corrective action by issuing the Federal Assistance Directive to establish internal guidance, policies, and procedures for all domestic and overseas grant-making bureaus, offices, and posts within the department when administering federal financial assistance  The directive notes that State implemented a grant management system for domestic and overseas grants to resolve its “significant deficiency in the management of Federal financial assistance ” In addition, the directive indicates that officials from State’s Bureau of Administration, Office of the Procurement Executive, Federal Assistance Division will evaluate compliance with risk assessment requirements and review documentation for selected agreements each fiscal year  One of the stated purposes of these reviews is to mitigate risk by strengthening management and oversight of awards, including grants  According to a State Office of Inspector General report, State should complete the full deployment of this system for overseas grants in fiscal year 2019  HHS did not have full documentation of 1 of the 5 applicable monitoring activities (20 percent) we identified across the three agreements we reviewed (see table 14)  HHS had partial documentation of the semiannual progress report activity for one of its agreements, required by the terms of its agreement  HHS officials did not explain why they did not have full documentation for this monitoring activity  HHS had full documentation of all applicable monitoring activities for the other two agreements we reviewed  According to agency officials, the Food and Drug Administration, which administered one of the HHS agreements we reviewed, has taken corrective action to evaluate its agreement documentation and address deficiencies  According to HHS officials, the Food and Drug Administration developed a pilot program intended to provide an additional layer of oversight to ensure adherence to the terms of each agreement  Under the pilot, officials said, a grant monitoring specialist reviews the agreement documentation and monitoring reports to identify agreements that need additional assistance  According to HHS officials, the Food and Drug Administration implemented this program in fiscal year 2018 and will eventually include all Food and Drug Administration agreements  U S  assistance agreements for projects with inter-American organizations further U S  strategic goals in the Western Hemisphere, but State, HHS, USAID, and USDA did not consistently include all key monitoring provisions as part of their assistance agreements or demonstrate that they had full documentation of monitoring activities for the agreements we reviewed  Of these four agencies, USAID and USDA have not taken corrective actions  Monitoring the implementation of U S  assistance agreements and fully documenting the results of such monitoring are key management controls to help ensure that U S  agreement recipients use federal funds appropriately and effectively  The agencies risk weakening the effectiveness of these controls by not including all key monitoring provisions called for by applicable agency guidance  Further, if the agencies do not have full documentation of the agreements’ required monitoring activities, they may not be able to effectively manage federally funded projects that support U S  strategic goals  In addition, agencies may not have all the information they need to make budgetary and programmatic decisions  We are making a total of three recommendations: one to USAID and two to USDA  The USAID Administrator should ensure that USAID officials have full documentation of required monitoring activities in agreements with inter- American organizations  (Recommendation 1) The Secretary of Agriculture should ensure that USDA includes all key monitoring provisions specified by applicable guidance as part of agreements with inter-American organizations  (Recommendation 2) The Secretary of Agriculture should ensure that USDA officials have full documentation of required monitoring activities in agreements with inter- American organizations  (Recommendation 3) We provided a draft of this report for comment to State, USAID, HHS, and USDA  USDA concurred with our recommendations in an e-mail  In its written comments, reproduced in appendix IV, USAID stated that it has policies, procedures, and training in place for the officials who manage these agreements  In response to our recommendations, USAID stated that it will issue an agency notice to remind all such officials of these responsibilities, including the requirement to maintain complete files for each agreement  State and HHS did not provide formal comments  They did provide technical comments, which we incorporated as appropriate  As agreed with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date  At that time, we will send copies of this report to the appropriate congressional committees, the Secretary of State, the Administrator of the U S  Agency for International Development, the Secretary of Health and Human Services, and the Secretary of Agriculture  In addition, the report is available at no charge on the GAO website at http://www gao gov  If you or your staff have questions about this report, please contact me at (202) 512-9601, or melitot@gao gov  Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report  GAO staff who made key contributions to this report are listed in appendix V  Congressional requesters asked us to review several issues related to the Organization of American States (OAS), the Pan American Health Organization (PAHO), the Inter-American Institute for Cooperation on Agriculture (IICA), and the Pan-American Institute of Geography and History (PAIGH)  In this report, we (1) assess the extent to which the organizations’ strategic goals align with those of U S  agencies; (2) examine how the organizations oversee the use of their funds and the extent to which U S  agencies have supported those efforts; (3) assess the extent to which U S  agencies included key monitoring provisions as part of their assistance agreements; and (4) assess the extent to which U S  agencies had documentation of monitoring activities, including those called for by these provisions  To address the first objective, we gathered documentation and interviewed officials from the four U S  agencies and the four organizations to determine the U S  strategic goals for foreign assistance to the Western Hemisphere and the goals of the four organizations  According to Department of State (State) and U S  Agency for International Development (USAID) officials, the strategic document that underpins their foreign assistance priorities for the region is The Department of State’s Bureau of Western Hemisphere Affairs’ and USAID’s Bureau for Latin American and Caribbean Affairs’ Joint Regional Strategy  Department of Health and Human Services (HHS) officials said that HHS’s relevant strategic document is The Global Strategy of the U S  Department of Health and Human Services  U S  Department of Agriculture’s (USDA) strategic goals for foreign assistance, according to officials, are outlined in the United States Department of Agriculture Strategic Plan FY2015–2018  The OAS outlined its strategic goals in the Comprehensive Strategic Plan of the Organization, adopted on October 31, 2016  PAHO’s goals are laid out in Strategic Plan of the Pan American Health Organization 2014–2019  IICA’s strategic document is the IICA 2010–2020 Strategic Plan, which took effect in October 2010  PAIGH’s strategic document is the Declaration and Guide for the Pan American Agenda 2010-2020  We compared the strategic goals articulated by the four organizations against U S  strategic goals to assess the extent to which the organizations’ goals contribute to U S  interests in the region  We then interviewed officials from the four agencies and reviewed relevant documentation on efforts they undertake to ensure that U S -funded activities align with U S  strategic goals  To address the second objective, we reviewed documentation of the organizations’ internal control mechanisms and confirmed our findings with the organizations  We identified mechanisms to include policies, directives, rules, practices, and organizational structures that can have an oversight role in the use of the organizations’ funds  We also interviewed officials from State, USAID, HHS, and USDA to discuss their support of these mechanisms  To address the third objective, we identified 60 active assistance agreements that these agencies oversaw with OAS, PAHO, and IICA during calendar years 2014 through 2016 and selected a nongeneralizable sample of 12 agreements, three each from State, USAID, HHS, and USDA  To determine which agreements we would review for each agency, we selected the three agreements with the lowest, median, and highest dollar value  If any of an agency’s agreements supported the same country or activity or were for one-time projects such as seminars, we selected the next appropriate agreement based on dollar value  For these selected agreements, we then identified the applicable agency guidance for monitoring activities in the agreements, which we define as all documents related to each agreement provided to us by the agencies, such as monitoring reports  The number of key monitoring provisions varied—even within each agency—depending on when agency guidance was issued and updated relative to when the agreements were approved  USDA did not have applicable internal agency-specific guidance for monitoring of assistance agreements at the time it awarded the agreements we reviewed; thus, with USDA’s input, we used the applicable sections of the Code of Federal Regulations, which together have five key monitoring provisions for agreements  However, USDA approved two of the agreements in 2012 and the third agreement in 2016, and this third agreement was subject to an amended version of the Code of Federal Regulations, which added an additional provision for performance goals  State’s four applicable grants policy directives have seven key monitoring provisions for agreements that were applicable at the time the agreements we reviewed were approved  USAID’s Standard Provisions for Cost-Type Awards to Public International Organizations (PIOs): A Mandatory Reference to ADS Chapter 308 has two key monitoring provisions for agreements: audits and records, and the organization’s adherence to their rules  HHS’s grants policy has five key monitoring provisions for grant documentation  We identified key monitoring provisions for agencies to include as part of agreements to ensure oversight of the use of funds, such as financial and progress reports  For the 12 agreements in our sample, we analyzed the assistance agreements from the four agencies, and then determined the extent to which the agencies’ agreements included key monitoring provisions implementing monitoring activities called for by applicable agency guidance  We did not include subsequent amendments to these 12 agreements in our review of key monitoring provisions  We interviewed officials from State, USAID, HHS, and USDA (1) to confirm we were applying the appropriate federal or agency guidance and (2) to discuss instances in which the agreements did not include key monitoring provisions  To address the fourth objective, we reviewed the 12 selected assistance agreements and guidance to identify specific required monitoring activities, such as financial and program reports, site visits, and other forms of oversight  The agreements specify the requirements for these activities such as requiring financial reports on a quarterly basis  For these 12 agreements, we reviewed all the documentation provided to us by the agencies, then determined the extent to which the agencies had full documentation of key monitoring activities as specified in the assistance agreements, including those called for by key monitoring provisions, as well as those called for by guidance when the monitoring provisions were absent  We did not include subsequent amendments to these 12 agreements in our review of monitoring activities  We interviewed officials from State, USAID, HHS, and USDA to discuss instances in which the agency did not have full documentation of key monitoring activities  We also discussed how State, USAID, and HHS agency officials manage their agreement documentation and use the information in the agreements’ required monitoring documentation  We conducted this performance audit from July 2016 to December 2017 in accordance with generally accepted government auditing standards  Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives  We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives  The Organization of American States (OAS), Pan American Health Organization (PAHO), the Inter-American Institute for Cooperation on Agriculture (IICA), and the Pan-American Institute on Geography and History (PAIGH) have established mechanisms for overseeing their use of funds  Tables 15–18 show the mechanisms (oversight policies and oversight committees and organizations) for each of these inter-American organizations, as confirmed by the organizations’ officials  To oversee the execution of their agreements, the Department of State (State), the U S  Agency for International Development (USAID), the Department of Health and Human Services (HHS), and U S  Department of Agriculture (USDA) are to conduct monitoring activities called for by applicable federal regulations or agency guidance and document these provisions in assistance agreements as called for by federal standards for internal control  We identified key monitoring provisions implementing the applicable agency guidance for State, USAID, HHS, and the applicable regulations for USDA, as shown in table 19  For both the agency guidance and the federal regulations, those listed are the ones that were in effect when the agreements in our sample were approved  Some of the agency guidance and regulations have since been amended or superseded  In addition to the contact named above, Pierre Toureille (Assistant Director), Julia Jebo Grant (Analyst-in-Charge), Leslie Stubbs, and Paul Sturm, Alana Miller, and Shirley Min made key contributions to this report  In addition, David Dayton, Martin de Alteriis, Neil Doherty, Jeff Isaacs, and Alex Welsh provided technical assistance 

ground_truth: Title IX of the Education Amendments of 1972 (Title IX) provides an avenue of legal relief for victims of sexual abuse and harassment at educational institutions. It bars discrimination "on the basis of sex" in an educational program or activity receiving federal funding. Although Title IX makes no explicit reference to sexual harassment or abuse, the Supreme Court and federal agencies have determined that such conduct can sometimes constitute discrimination in violation of the statute; educational institutions in some circumstances can be held responsible when a teacher sexually harasses a student or when one student harasses another. Title IX is mainly enforced (1) through private rights of action brought directly against schools by or on behalf of students subjected to sexual misconduct; and (2) by federal agencies that provide funding to educational programs. To establish liability in a private right of action, a party seeking damages for a Title IX violation must satisfy the standards set forth by the Supreme Court in Gebser v. Lago Vista Independent School District, decided in 1998, and Davis Next Friend LaShonda D. v. Monroe County Board of Education, decided the next year. Gebser provides that when a teacher commits harassment against a student, a school district is liable only when it has actual knowledge of allegations by an "appropriate person," and so deficiently responds to those allegations that its response amounts to deliberate indifference to the discrimination. Davis instructs that, besides showing actual knowledge by an appropriate person and deliberate indifference, a plaintiff suing for damages for sexual harassment committed by a student must show that the conduct was "so severe, pervasive, and objectively offensive" that it denied the victim equal access to educational opportunities or benefits. Taken together, the Supreme Court's decisions set forth a high threshold for a private party seeking damages against an educational institution based on its response to sexual harassment. In turn, federal appellate courts have differed in how to apply the standards set in Gebser and Davis, diverging on the nature and amount of evidence sufficient to support a claim. In each of the last several presidential administrations, the Department of Education (ED) issued a number of guidance documents that instruct schools on their responsibilities under Title IX when addressing allegations of sexual harassment. These documents—while sometimes subject to change—generally reflected a different standard than the Supreme Court case law addressing private rights of action for damages for sexual abuse or harassment (the Court in Davis acknowledged that the threshold for liability in a private right of action could be higher than the standard imposed in the administrative enforcement context). Those guidance documents had, among other things, established that sometimes a school could be held responsible for instances of sexual harassment by a teacher, irrespective of actual notice; and schools could be held responsible for student-on-student harassment if a "responsible employee" knew or should have known of the harassment (constructive notice). ED's previous guidance also instructed educational institutions that they sometimes could be responsible for responding to incidents of sexual harassment occurring off campus. ED also cautioned schools on the use of mediation to resolve allegations of sexual harassment. With regard to the procedures used by schools to resolve sexual harassment allegations, ED informed schools that they must use the preponderance of the evidence standard to establish culpability, and the agency strongly discouraged schools from allowing parties in a hearing to personally cross-examine one another. In response to guidance from ED, as well as increased oversight from the department's Office for Civil Rights (OCR) between 2011 and 2016, schools developed several procedures to ensure that their responses to allegations of sexual harassment and assault complied with Title IX. A number of students faced with disciplinary action by public universities raised constitutional challenges to the Title IX procedures used to find them responsible for sexual misconduct, arguing that universities violated the Due Process Clause in handling their case. ED issued a notice of proposed rulemaking in late 2018, after revoking some of its previous guidance to schools in 2017. The proposed regulations would, in several ways, tether the administrative requirements for schools to the standard set by the Supreme Court in Gebser and Davis. In doing so, the proposed regulations would depart from the standards set by ED in previous guidance documents (some of which have since been rescinded). The new regulations would require "actual notice," rather than constructive notice, of harassment by an education institution to trigger a school's Title IX responsibilities, and provide that a school's response to allegations of sexual harassment will violate Title IX only if it amounts to deliberate indifference. In addition, the new regulations would more narrowly define what conduct qualifies as sexual harassment under Title IX, and also impose new procedural requirements, which appear to reflect due process concerns, when schools investigate sexual harassment or assault allegations and make determinations of culpability.

prompt_front: You are given two reports by the government agency.



Question: Write a one-page summary of the report 2.

Report 1: The combination of growing supplies of liquefied natural gas (LNG) and new requirements for less polluting fuels in the international maritime shipping industry has heightened interest in LNG as a maritime fuel  For decades, LNG tanker ships have been capable of burning boil-off gas from their LNG cargoes as a secondary fuel  However, using LNG as a primary fuel is a relatively new endeavor; the first LNG-powered vessel—a Norwegian ferry—began service in 2000  Several aspects of LNG use in shipping may be of congressional interest  LNG as an engine, or "bunker," fuel potentially could help the United States reduce harmful air emissions, it could create a new market for domestic natural gas, and it could create economic opportunities in domestic shipbuilding  However, U S  ports would need specialized vessels and land-based infrastructure for LNG "bunkering" (vessel refueling) as well as appropriate regulatory oversight of the associated shipping and fueling operations  The storage, delivery, and use of LNG in shipping also has safety implications  These and other aspects of LNG bunkering may become legislative or oversight issues for Congress  One bill in the 115 th Congress, the Waterway LNG Parity Act of 2017 ( S  505 ), would have imposed excise taxes on LNG used by marine vessels on inland waterways  This report discusses impending International Maritime Organization (IMO) standards limiting the maximum sulfur content in shipping fuels, the market conditions in which LNG may compete to become a common bunker fuel for vessel operators, and the current status of LNG bunkering globally and in the United States  A broader discussion of oil market implications is outside the scope of this report  The IMO is the United Nations organization that negotiates standards for international shipping  Its standards limiting sulfur emissions from ships, adopted in 2008, have led vessel operators to consider alternatives to petroleum-based fuels to power their ships  In 1973, the IMO adopted the International Convention for the Prevention of Pollution from Ships (MARPOL)  Annex VI of the convention, which came into force in 2005, deals with air pollution from ships  The annex established limits on nitrogen oxide (NO x ) emissions and set a 4 5% limit on the allowable sulfur content in vessel fuels  In 2008, the IMO announced a timeline to reduce the maximum sulfur content in vessel fuels from 4 5% to 0 5% by January 1, 2020  Annex VI requires vessel operators to either use fuels containing less than 0 5% sulfur or install exhaust gas-cleaning systems ("scrubbers") to limit a vessel's sulfur oxide (SO x ) emissions to a level equivalent to the required sulfur limit  MARPOL is implemented in the United States through the Act to Prevent Pollution from Ships ()  The United States effectively ratified MARPOL Annex VI in 2008 when President Bush signed the Maritime Pollution Prevention Act ( P L  110-280 )  The act requires that the U S  Coast Guard and the Environmental Protection Agency (EPA) jointly enforce the Annex VI emissions standards  MARPOL's Annex VI requirements are codified at 40 C F R  §1043  They apply to U S -flagged ships wherever located and to foreign-flagged ships operating in U S  waters  In addition to its global sulfur standards, MARPOL Annex VI provides for the establishment of Emissions Control Areas (ECAs), which are waters close to coastlines where more stringent emissions controls may be imposed  The North American ECA limits the sulfur content of bunker fuel to 0 1% of total fuel weight, an even lower bar than that set by the IMO 2020 standards  This standard is enforced by Coast Guard and EPA in waters up to 200 miles from shore  Currently, most ships operating in the North American ECA meet the emissions requirements by switching to low-sulfur fuels once they enter ECA waters  The European Union also has an ECA with a 0 1% limit on sulfur in bunker fuels, and the Chinese government is considering putting the same standard in place  The IMO 2020 emissions requirement applies to vessels of 400 gross tons and over, which is estimated to cover about 110,000 vessels worldwide  However, analysts indicate that many of the smaller vessels in this group already burn low-sulfur fuel  Accounting for these smaller vessels, one estimate is that about 55,000 vessels currently burn high-sulfur fuel  Ship owners have two main options for meeting the emission requirements with existing engines: burn low-sulfur conventional fuel (or biofuels) or install scrubbers to clean their exhaust gases  Alternatively, ship owners may opt to install new LNG-fueled engines to comply with the IMO standard  The simplest option for vessel owners to comply with the IMO sulfur standards, and the one that appears most popular, is switching to low-sulfur fuel oils or distillate fuels  Although switching to low-sulfur fuels would increase fuel costs compared to conventional, high-sulfur fuels, it would require little or no upfront capital cost and would allow ocean carriers to use existing infrastructure to bunker ships at ports  Anticipating widespread adoption of this approach, many analysts predict that the implementation of the IMO 2020 regulations will drive up demand for low-sulfur fuel and, therefore, significantly increase its price above current levels  Such a trend could also reduce demand for high-sulfur fuels, increasing the price spread between low- and high-sulfur bunkers fuels  Switching to lower-sulfur fuel could increase fuel cost across the industry by up to $60 billion in 2020 for full compliance with the IMO standards  Moreover, while it may allow vessels to meet the existing IMO sulfur standards, low-sulfur fuel does not necessarily support compliance with potential future IMO emissions standards, especially with respect to greenhouse gases (GHGs) such as carbon dioxide (CO 2 ) discussed later in this report  Scrubbers are systems which remove sulfur from a vessel's engine exhaust emissions  A ship with a scrubber would be capable of meeting the IMO 2020 standard while using conventional high-sulfur fuel  Retrofitting a scrubber on an existing engine can cost several million dollars, however, before factoring in the lost revenue from taking the ship out of service for a month for the installation  Therefore, while using a scrubber will allow a ship to continue using (currently) cheaper high-sulfur fuel, it may take years to recover the initial investment  For example, one industry study estimates that, in the case of a typical tanker, a scrubber installation could cost $4 2 million with a payback time of approximately 4 8 years  Furthermore, scrubbers installed to capture sulfur emissions might have to be further refitted or replaced to comply with any future IMO standards for GHG emissions  The rate of scrubber adoption could affect the financial impacts of installing them in terms of fuel costs  Scrubbers ultimately offset some or all of their initial costs because they allow vessel operators to continue using relatively inexpensive high-sulfur fuel  However, the return on investment for scrubbers depends on the relative prices of high- and low-sulfur bunker fuels  The demand—and therefore, prices—for low-sulfur and high-sulfur fuels will be affected by how many vessels use the respective fuels under the IMO standards that take effect in 2020  For example, limited scrubber adoption could result in more vessels demanding more low-sulfur fuel oil, creating upward pressure on low-sulfur fuel prices  Under such a scenario, scrubbers would provide greater fuel cost savings for vessels that installed them  Alternatively, high-sulfur fuel could become more costly due to refinery production cutbacks (because shippers will not be allowed to burn it without scrubbers)  In this case, the economic benefits of scrubbers would be diminished  Given the uncertain fuel supply and demand dynamics, it is difficult for vessel operators to know how big the market distortions from scrubber installation could be or how many other operators may choose to install scrubbers  As of September 2018, there were approximately 660 ships retrofitted with scrubbers and over 600 ships under construction with plans to install scrubbers  By 2020, projecting additional construction orders, some analysts predict about 2,000 vessels could have scrubbers installed  However, even with higher demand for the technology, the ability of vessel owners to install scrubbers is constrained; analysts estimate that current maximum capacity for installing scrubbers is be between 300 to 500 ships per year  Another option for ship owners to comply with the IMO 2020 sulfur standards is to switch to engines that burn LNG as a bunker fuel  LNG-fueled vessels emit only trace amounts of sulfur oxides in their exhaust gases—well below even the 0 1% fuel-equivalent threshold in some of the ECA zones—so they would be fully compliant with the IMO standards  As a secondary benefit, using LNG as an engine fuel also would reduce particulate matter (PM) emissions relative to both high- and low-sulfur marine fuel oils  Furthermore, LNG vessels have the potential to emit less CO 2 than vessels running on conventional, petroleum-based fuels  However, LNG vessels would have the potential to result in more fugitive emissions of methane, another GHG, because methane is the primary component of natural gas, further discussed below  Installing an LNG-fueled engine can add around $5 million to the cost of a new ship  Retrofitting existing ships appears to be less desirable because of the extra space required for the larger fuel tanks (new ships can be designed with the larger fuel tanks)  The costs of retraining crews to work with LNG engines could also factor into a vessel operator's decision about switching to LNG  However, apart from their lower emissions, LNG-fueled engines may offset their capital costs with fuel cost advantages over engines burning petroleum-derived fuels  These savings would depend on the price spread between natural gas and fuel oil—which has been volatile in recent years  The likelihood that switching to LNG will produce long-term fuel costs savings relative to conventional fuels is, therefore, a critical consideration for many vessel owners  The 1920 Merchant Marine Act (known colloquially as the Jones Act) requires that vessels engaged in U S  domestic transport be built domestically  Many newly built domestic ships receive a federal loan guarantee under the Maritime Administration's so-called "Title XI" program  In 2014, the program was modified to include the use of "alternative energy technologies" to power ships as part of the relevant criteria in evaluating a loan application  The Maritime Administration counts LNG-fueled engines as an "alternative energy technology" and may be more likely to approve loan applications for ships with LNG-capable engines  Since the North American ECA was established in 2015, Jones Act coastal ship operators have taken steps to transition their fleets to use cleaner burning fuels, including LNG  The three Jones Act operators that ship dry goods to Alaska, Hawaii, and Puerto Rico have taken delivery or have ordered LNG-fueled and LNG-capable vessels from U S  shipyards in Philadelphia, PA, and Brownsville, TX  Harvey Gulf International has put into service five LNG-powered offshore supply vessels that service offshore oil rigs  Some Jones Act tanker operators that have recently built or ordered vessels have chosen to install LNG-ready engines while other operators have chosen to install scrubbers on their existing fleet  Ship engines and scrubbers for the Jones Act fleet do not have to be manufactured in the United States because they are not considered an integral part of the hull or superstructure of a ship  Seagoing barges, known as articulated tug barges, are also a significant portion of the domestic coastal fleet, especially for moving liquid cargoes  However, these vessels traditionally have burned lower-sulfur fuels and thus the ECA has not prompted fleet conversions  IMO fuel requirements do not apply to river barges operating on the nation's inland waterway system, although this fleet potentially could be a market for LNG as fuel  Bunkering vessels (small tankers with hoses for refueling ships) in U S  waters must also be Jones Act compliant  Barges are the predominant method for bunkering ships in U S  ports  An LNG bunkering vessel for the Port of Jacksonville—the first Jones Act-compliant LNG bunkering vessel to enter service in the United States—was built in 2017 by Conrad Shipyards in Orange, TX  Recent energy sector trends suggest that LNG may be cheaper in the long-run than petroleum-based, low-sulfur fuels  However, these price movements are correlated to some extent  Many existing long-term LNG contracts link LNG prices to oil prices (although such contract terms are on the decline), even in the spot market  Starting in 2008, the advent of shale natural gas production dramatically decreased natural gas prices in the United States  Natural gas spot prices in the United States at the Henry Hub—the largest U S  trading hub for natural gas—averaged around $3/MMBtu (million British Thermal Units) in 2018, about a quarter of the peak in average price a decade before, just prior to the shale gas boom ( Figure 1 )  Liquefying natural gas into LNG adds around $2/MMBtu to the production cost  Including additional producer charges and service costs would bring the total cost of LNG available at a U S  port (based on the 2018 average price in Figure 1 ) to approximately $6/MMBtu  Shipping of LNG from the United States to Asia or Europe adds from $1 to $2/MMBtu, so, based on the 2018 average cost in Figure 1 , LNG delivered to a port overseas would cost on the order of $7 to $8/MMbtu under long-term contracts, depending upon timing and location  Higher or lower prices could occur for specific long-term contracts and in the LNG spot market (i e , for individual cargoes), based on the location and the supply and demand balance at the time  In general, the U S  market will have the lowest-priced LNG  Northern Asia will have the highest LNG prices due to the region's comparative lack of pipeline gas supplies and its distance from LNG suppliers  Figure 2 compares LNG spot market prices in the Japan LNG market—the highest-priced LNG market—to spot prices for two common petroleum-based bunker fuels, low-sulfur gas oil and high-sulfur fuel oil  As the figure shows, over the last five years, Japan LNG generally has been cheaper than low-sulfur fuel and more expensive than high-sulfur fuel on an energy-equivalent basis (i e , per MMbtu)  However, Japan LNG and high-sulfur fuel prices converged in 2018  As the figure shows, spot prices for LNG deliveries to the Japan market fell below $6/MMBtu in 2016 from a high above $16/MMBtu in 2013  Likewise, low-sulfur gas oil prices have doubled, and high-sulfur fuel oil prices have tripled, since 2016  The volatility of the bunker fuel markets and the global LNG market lead to considerable unpredictability about the relative prices among fuels going forward  LNG may become increasingly price-competitive versus low-sulfur fuel as the 2020 IMO sulfur standards take effect  As discussed above, many analysts predict prices for low-sulfur gas oil, which are already higher than those for high-sulfur fuel oil, to increase significantly after 2020 due to a standards-driven rise in demand  Although fuel prices as shown in Figure 2 indicate favorable economics for LNG versus low-sulfur fuel, if prices for high-sulfur fuel oils collapse as some expect after the 2020 IMO regulations enter into force, it is possible that LNG could lose its price advantage over residual fuel oils  Likewise, the price spread between low-sulfur gasoil and high-sulfur fuel oil would increase, incentivizing more carriers to install scrubbers to capitalize on the savings in fuel costs by continuing to burn high-sulfur fuel  An additional complication is the variability of LNG prices by region  Many shipping lines are global operators seeking low-priced fuel worldwide, but unlike the global oil market, natural gas markets are regional  Because the price of LNG can vary significantly by region, the relative economics of LNG versus other bunker fuels would also vary by region  Another uncertainty in the market for LNG bunkering is the discrepancy between the spot price for traded LNG and the price for LNG sold as bunker fuel in ports  Added costs associated with marketing, storing and transporting LNG in bunkering operations (discussed below) would likely require ports to charge a rate for LNG bunker fuel above spot market prices  These additional overhead costs are likely to vary among ports  Before factoring in any effect of IMO standards on fuel prices, and assuming a favorable LNG-fuel oil price spread, it still could take years for the savings generated by using LNG to pay back the capital costs of switching fuels  Through May 2018, there were 122 LNG-powered vessels in operation and another 135 ordered or under construction  Many of the first LNG vessels delivered and ordered were Norwegian-flagged vessels, as the Norwegian government has subsidized LNG-fueled vessels with a "NO x Fund " The fund provides LNG-operated ships with an exemption from the country's tax on NO x emissions  As an alternative to committing to LNG as a fuel, some vessel owners may hedge their bets by opting to install "LNG-ready" engines, which can burn low-sulfur fuel oil currently, but are designed to make future LNG conversion easier  The number of LNG ships that may be in operation by 2030 is difficult to predict  First, as noted above, growth in LNG powered vessels is likely to be driven primarily by new builds rather than retrofits  However, the shipping industry has experienced nearly a decade of vessel overcapacity and slow growth  Weak growth in the shipping industry could result in slower growth in vessel orders overall and, therefore, fewer orders for LNG-powered vessels  Of new vessels ordered, or set to be delivered, in 2018 or after, 13 5% (by tonnage) are LNG-fueled—up from 1 4% in 2010  If this trend continues, demand for LNG from the shipping industry could still be relatively high, even if overall growth in the shipping industry remains slow  Because LNG bunkering infrastructure among global ports is currently limited, vessels that use large amounts of fuel and travel predictable routes—along which LNG is available—are the most suitable for LNG fuel  For this reason, cruise ships, vehicle ferries, and container ships initially may be the most likely vessel types to adopt LNG as bunker fuel  Order books have reflected this assessment: one quarter of all cruise ships on order by tonnage at the end of 2017 were LNG-powered  Likewise, a major container ship line, CMA CGM, recently announced that it was ordering nine extra-large container ships powered by LNG  The carrier stated that the fuel tanks will displace space for "just a few containers" and said it intends to refuel these ships just once on their round trip voyages between Asia and Europe  Conversely, LNG fuel adoption may be less likely for oil tankers  Half the global oil tanker fleet operates on the shipping spot market (also known as the "tramp" market), meaning that ship owners enter into contracts with cargo owners only for a single voyage  In this kind of trade, many oil tankers lack a consistent route  Having to limit spot contracts only to ports that may bunker LNG could reduce the arbitrage opportunities of tankers  Dry bulk cargo vessels (carrying grain, coal, and other commodities) also typically operate in the tramp market  LNG-powered vessels have lower direct exhaust emissions than comparable vessels using petroleum-derived fuels  However, the lifecycle—or "well-to-wake"—GHG emissions (especially of methane) and of volatile organic compound emissions from natural gas production, transportation, and liquefaction complicates the comparison  One study in 2015 concluded, "performing a ['well-to-wake'] GHG study on LNG used as a marine fuel is more complex than previously thought  Further studies are needed     to investigate this subject " A 2016 study found that the relative GHG emissions benefits of LNG versus conventional fuel oil on a "well-to-wake" basis was highly dependent upon fugitive methane emissions in the LNG supply chain  A 2017 study funded by NGVA Europe, an association which promotes the use of natural gas in vehicles and ships, concluded that LNG as a bunker fuel provides a 21% well-to-wake reduction in GHG emissions compared to convention fuel oil  Evaluating such studies is beyond the scope of this report, although they indicate uncertainty about environmental benefits of LNG fuel, which may require further examination  Despite concerns over lifecycle emissions from the natural gas supply chain, in the short term, ships that pair LNG engines with newer vessel designs could reduce onboard GHG emissions  However, whether these GHG emission reductions would be sufficient to meet the future standards could become another issue for ship owners  The IMO has set a provisional goal of reducing GHG emissions from ships by 50% by 2050  Depending upon the state of engine technology, LNG-fueled ships might become less viable if GHG limits were to be established well before 2050  Concerns about such GHG limits might lead to a decrease in orders of LNG-powered ships over time  Commercial vessels have a typical lifespan of over 20 years, so firms ordering new ships have to take into account compliance with potential standards issued decades in the future  If renewable fuels, such as biodiesel, become more available and cheaper in the coming decades, renewable fuel-powered ships may take over part of the market that LNG-powered ships could occupy  A key requirement for ocean carriers to adopt LNG as an engine fuel is the availability of LNG bunkering facilities  Because LNG is extremely cold (-260 °F) and volatile, LNG bunkering requires specialized infrastructure for supply, storage, and fuel delivery to vessels  Depending upon the specific circumstances, LNG bunkering could require transporting LNG to a port from an offsite liquefaction facility for temporary storage at the port, or building an LNG liquefaction terminal on site  Alternatively, LNG could be delivered from offsite facilities directly to vessels in port via truck or supply vessel ( Figure 3 )  Truck-to-vessel LNG bunkering, in particular, provides some fueling capabilities without large upfront capital investments  LNG tanker trucks could also bring LNG to a storage tank built on site at the port, which could then bunker the LNG to arriving ships via pipeline  Supplying LNG using tanker trucks in this way may face capacity limitations due to truck size, road limitations, or other logistical constraints, but it has been demonstrated as a viable approach to LNG bunkering at smaller scales  The predominant method of bunkering today with high-sulfur fuel is vessel to vessel, either by a tank barge or smaller tanker  The type of infrastructure needed to temporarily store (if needed) and deliver LNG within a given port would depend on the size and location of the port, as well as the types of vessels expected to bunker LNG  Truck to ship bunkering is best suited for supporting smaller and mid-sized vessels, such as ferries or offshore supply vessels (OSVs) that support offshore oil platforms  Liquefaction facilities built on site can provide the greatest capacity of any LNG bunkering option, for example, to provide fuel for large vessels in transoceanic trade  However, constructing small-scale liquefaction facilities to produce and deliver LNG on site requires considerable planning and significant capital investment, in one case on the order of $70 million for a mid-sized port  Each LNG bunkering option in Figure 3 may be a viable means to begin LNG bunkering service in a given port  However, ports may face practical constraints as bunkering increases in scale  For example, a container port of significant size typically has multiple terminals, so even with an on-site liquefaction facility, it may need additional infrastructure or supply vessels for moving LNG to other port locations where a cargo ship might be berthed  There may also be port capacity and timing constraints upon the movement of LNG bunkering barges trying to refuel multiple large vessels in various locations around a crowded port  To date, the LNG bunkering operations already in place or in development are comparatively small, but scale constraints could become a factor as LNG bunkering grows and might require additional bunkering-related port investments  Early adoption of LNG bunkering occurred in Europe, where the first sulfur ECAs were created in 2006 and 2007  Through Directive 2014/94/EU, the European Union requires that a core network of marine ports be able to provide LNG bunkering by December 2025 and that a core network of inland ports provide LNG bunkering by 2030  This mandate has been promoted, in part, with European Commission funds to support LNG bunkering infrastructure development  In addition, the European Maritime Safety Agency published regulatory guidance for LNG bunkering in 2018  Over 40 European coastal ports have LNG bunkering capability currently in operation—primarily at locations on the North Sea and the Baltic Sea, and in Spain, France, and Turkey  These locations include major port cities such as Rotterdam, Barcelona, Marseilles, and London  Another 50 LNG bunkering facilities at European ports are in development  LNG bunkering is also advancing in Asia, led by Singapore, the world's largest bunkering port  Singapore has agreed to provide $4 5 million to subsidize the construction of two LNG bunkering vessels  The Port of Singapore plans to source imported LNG at the adjacent Jurong Island LNG terminal, loading it into the bunkering vessels for ship-to-ship fueling of vessels in port  Singapore also has signed a memorandum of understanding with 10 other partners—including a Japanese Ministry and the Chinese Port of Ningbo-Zhoushan—to create a focus group aimed at promoting the adoption of LNG bunkering at ports around the world  In Japan, one consortium is implementing plans to begin vessel-to-vessel LNG bunkering at the Port of Keihin in Tokyo Bay by 2020


Report 2:  Japan's NYK line, a large ship owner, recently announced that it had reached an agreement with three Japanese utilities to add LNG bunkering to ports in Western Japan  Asian countries, together with Australia and the United Arab Emirates, currently have around 10 coastal ports offering LNG bunkering, with another 15 projects in development  Some LNG bunkering operations in Europe and Asia are associated with existing LNG marine terminals, which already have LNG storage and port infrastructure in place  However, many smaller operations—including most of the projects in development—employ trucking, dedicated bunkering vessels, on-site liquefaction, and other means to extend LNG availability beyond the ports with major LNG terminals  LNG bunkering is not so advanced in South America, although with nine operating LNG marine terminals (one for export), and another six in development, South America also could support significant LNG bunkering operations in the near future  LNG bunkering in the United States currently takes place in two locations—Jacksonville, FL, and Port Fourchon, LA—with a third bunkering facility under development in Tacoma, WA  The LNG facilities in these ports serve the relatively small U S -flag domestic market  Bunkering of LNG-fueled cruise ships also is planned for Port Canaveral, FL  However, ports in North America have significant potential to expand the nation's LNG bunkering capability  Jacksonville is the largest LNG bunkering operation at a U S  port  One bunkering facility at the port, developed by JAX LNG, initially began truck-to-ship refueling operations in 2016 for two LNG-capable container ships  (The LNG is sourced from a liquefaction plant in Macon, GA  ) In August 2018, upon delivery of the Clean Jacksonville bunker barge, the facility began to replace truck-to-ship bunkering with ship-to-ship bunkering  In the future, the barge plans to source LNG from a new, small-scale liquefaction plant which JAX LNG is currently constructing at the port  A second facility at Jacksonville's port, operated by Eagle LNG, provides LNG bunkering sourced from a liquefaction plant in West Jacksonville  Eagle LNG also is constructing an on-site liquefaction and vessel bunkering facility in another part of the port, expected to begin service in 2019  Taken together, the JAX LNG and Eagle LNG facilities is expected to establish Jacksonville as a significant LNG-bunkering location with the capability to serve not only the domestic fleet but larger international vessels as well  In 2015, Harvey Gulf International Marine (Harvey) began LNG bunkering operations in the Gulf of Mexico to fuel its small fleet of LNG-powered offshore supply vessels serving offshore oil rigs  Harvey has since constructed a $25 million facility at its existing terminal in Port Fourchon to store and bunker LNG sourced from liquefaction plants in Alabama and Texas  The facility can provide truck-to-ship bunkering services for LNG-fueled offshore supply vessels, tank barges, and other vessels  A Harvey subsidiary has ordered two LNG bunkering barges to enable ship-to-ship fueling in the future  Puget Sound Energy has proposed an LNG liquefaction and bunkering facility at the Port of Tacoma, WA  Vessels traveling between Washington and Alaska typically spend the entire journey within the 200-mile North America ECA  Consequently, vessel owners operating along these routes have been interested in LNG as bunker fuel  TOTE Maritime, for example, a ship owner involved in trade between Alaska and the lower 48 states, has begun the process of retrofitting the engines of two of its container ships to be LNG-compatible  The proposed Tacoma LNG facility would be capable of producing up to 500,000 gallons of LNG per day and would include an 8 million gallon storage tank  The facility would serve the dual purposes of providing fuel for LNG-powered vessels and providing peak-period natural gas supplies for the local gas utility system  Its total construction cost reportedly is expected to be $310 million  Community and environmental concerns have slowed the progress of the proposal, which is still under regulatory review  Puget Sound Energy originally planned to put the LNG facility into service in late 2019; however, permitting issues appear likely to delay its opening until 2020 or later—if it is eventually approved  Q-LNG Transport, a company 30% owned by Harvey, has placed orders for two LNG bunkering barges to provide ship-to-ship LNG fueling as well as "ship-to-shore transfers to small scale marine distribution infrastructure in the U S  Gulf of Mexico and abroad " Q-LNG's first barge initially is expected to provide fuel to new LNG-fueled cruise ships based in Port Canaveral (and, potentially, Miami), while service from its second barge is still uncommitted  Initial plans are for the LNG to be sourced from the Elba Island LNG import/export terminal near Savannah, GA—approximately 230 nautical miles away—although the company may seek to develop an on-site LNG storage facility in the future  As noted above, U S  LNG bunkering activities thus far have been limited to a handful of vessels in domestic trade and tourism  LNG bunkering for the much larger fleet of foreign-flag ships carrying U S  imports and exports is still to be developed  As in Europe and Asia, domestic ports located near major LNG import or export terminals may serve as anchors for expanded LNG bunkering operations  Figure 4 shows existing LNG import and export terminals in North America  LNG can be liquefied from pipeline natural gas (or imported natural gas) and stored in large quantities at these facilities  The LNG can then be bunkered on site or transported to bunkering facilities elsewhere in the region by truck, rail, or barge  As discussed above, the distance between Port Canaveral and Elba Island in Q-LNG's bunker sourcing plan is 230 nautical miles  Taking this distance as a measure of how far away LNG can be sourced and barged economically, it is possible to extrapolate which U S  ports are within reach of a potential supply of LNG for vessel bunkering  Table 1 lists the top 20 U S  container shipment ports in the United States and their proximity to existing LNG import/export terminals  Of these top 20 ports, 12 are less than 230 nautical miles from an operating LNG terminal  Distances between LNG terminals and the other East Coast ports are not much greater, suggesting that LNG for vessel bunkering could be within reach of every U S  port along the Eastern Seaboard and in the Gulf of Mexico  On the West Coast, the ports of Los Angeles and Long Beach—the two largest U S  ports—are relatively close to the Costa Azul LNG import terminal in Ensenada, MX  Seattle and Tacoma are far from Ensenada, but would be served by the proposed Tacoma LNG bunkering project, if constructed  LNG bunkering for Seattle and Tacoma alternatively could be sourced from an existing LNG port facility around 100 nautical miles north in Vancouver, BC, which is expanding to provide LNG bunkering services to international carriers  Alaska's existing LNG export terminal currently is inactive, but potentially could supply LNG bunker fuel in the Pacific Northwest as well  Although existing LNG import or export terminals in North America could supply LNG for regional bunkering operations, such activities would require additional investment for infrastructure such as LNG transfer facilities and bunker barges  CRS is not aware of any public announcements among the LNG terminals above to develop bunkering operations  However, at least one LNG terminal owner, Cheniere Energy, which operates LNG terminals in Louisiana and Texas, identifies vessel bunkering as one source of future LNG demand growth worldwide  The IMO adopted safety standards for ships using natural gas as a bunker fuel in 2015  The standards, which took effect in 2017, apply to all new ships and conversions of ships (except LNG tankers, which have their own standards)  The IMO standards address engine design, LNG storage tanks, distribution systems, and electrical systems  They also establish new training requirements for crews handling LNG and other low flashpoint fuels  As is the case for the sulfur standards, the IMO LNG safety standards apply to all IMO member nations, including the United States  In addition, a number of U S  federal agencies, especially the Coast Guard and the Federal Energy Regulatory Commission, have jurisdiction over specific aspects of domestic LNG storage infrastructure and bunkering operations  The Coast Guard has the most prominent role in LNG bunkering, given its general authority over port operations and waterborne shipping  In 2015, the Coast Guard issued two guidelines for the handling of LNG fuel and for waterfront facilities conducting bunkering operations  In 2017, the Coast Guard issued additional guidelines to Captains of the Port, the local Coast Guard officials responsible for port areas, for conducting safe LNG bunkering simultaneously with other port operations  The guidelines advise on quantitative risk assessment of facilities bunkering LNG, which allows Captains of the Port to assess the risks posed to crews and facilities  The Federal Energy Regulatory Commission (FERC) plays a role in LNG bunkering due to its jurisdiction over the siting of LNG import and export terminals under the Natural Gas Act of 1938  Specifically, FERC asserts approval authority over the place of entry and exit, siting, construction, and operation of new LNG terminals as well as modifications or extensions of existing LNG terminals  Notwithstanding this siting authority, FERC reportedly does not intend to assert jurisdiction over the permitting of LNG bunkering facilities, but it may require amendment of permits it has issued for LNG import or export terminals to account for bunkering operations added afterwards  In addition to the Coast Guard and FERC, other federal agencies may have jurisdiction over specific aspects of LNG bunkering operations in U S  ports under a range of statutory authorities  For example, the Pipeline and Hazardous Materials Safety Administration within the Department of Transportation regulates the safety of natural gas pipelines and certain associated LNG storage facilities (e g , peak-shaving plants)  LNG facilities also may need to comply with the Occupational Safety and Health Administration's regulations for Process Safety Management of Highly Hazardous Chemicals  Other federal agencies, including the Environmental Protection Agency, the U S  Army Corps of Engineers, and the Transportation Security Administration, may regulate other aspects of LNG bunkering projects  CRS is not aware of new regulations to date among these agencies specifically addressing LNG bunkering  World production of LNG has been rising rapidly over the last few years, driven by growth in the natural gas sector in new regions—especially Australia and the United States  According to one industry analysis ( Figure 5 ), global LNG supply is expected to increase from 300 to 400 million metric tons per annum (MMtpa) from 2017 to 2021 based on new LNG liquefaction projects already operating or under development  An additional 150 MMtpa appears likely to come online after that  Collectively, LNG supply from these new liquefaction projects could exceed projections of demand, which would put downward pressure on LNG prices  While increases in the global supply of LNG do not necessarily translate directly into an increase in LNG available for bunkering, such increases could provide options for LNG bunkering in more ports  Estimating potential demand for LNG in the maritime sector is complicated and uncertain  One study of future LNG demand for bunkering, specifically, projects that LNG-powered vessels in operation and under construction as of June 2018 will require between 1 2 and 3 0 MMt of LNG per year  The study's review of several LNG consumption forecasts in the maritime sector shows a consensus projection between 20 to 30 MMt per year by 2030  This level of demand growth implies an increase in LNG-powered vessel construction from the current rate of around 120 ships per year to between 400 and 600 new builds per year  If these levels were reached, they could create a significant new market for LNG suppliers  Assuming a Henry Hub spot market price of $4/MMBtu in 2030, the annual market for LNG in shipping could be worth $2 9 billion to $5 8 billion, before accounting for liquefaction and transportation charges  Some studies have projected the LNG bunkering market to be even larger and to grow more quickly  However, key variables—such as the prices of Henry Hub natural gas and crude oil, the number of new vessel orders, and the future costs of emissions technology—are notoriously hard to predict with accuracy  Thus, it is not assured that natural gas consumption in the maritime sector will absorb more than a small amount of the global liquefaction capacity in development  The IMO sulfur standards apply to ship owners globally, as does the development of new LNG supply and bunkering infrastructure  In addition to these factors, domestic LNG bunkering also may be influenced by considerations more specific to the United States  These considerations include growth of the U S  natural gas supply, domestic shipbuilding opportunities, and LNG safety and security  Because of its leading role in global natural gas production, the United States has a particular interest in any new source of natural gas demand  According to the Energy Information Administration, the United States has been the world's top producer of natural gas since 2009, when it surpassed Russia  In 2017, increases in production outstripped increases in domestic gas consumption, leading to the United States becoming a net exporter of natural gas for the first time in nearly 60 years  As discussed above, North America (primarily the United States) is expected to add the most new LNG production capacity through 2030 when including projects that are operating, under construction, and likely (according to investment analysts)  Past increases in U S  LNG exports were driven by greater throughput at the Sabine Pass LNG export terminal—the only operating U S  LNG export terminal in 2017  In March 2018, the Cove Point terminal in Maryland became the second operating U S  LNG export terminal  Four additional projects under construction or commissioning are set to nearly triple U S  liquefaction by the end of 2019  This increase in liquefaction capacity likely will motivate LNG producers to secure new buyers  Figure 6 shows estimated LNG prices for various locations around the world as of October 2018  As the figure shows, LNG prices are substantially lower in North America than in Asia, Europe, and South America  Even after adding $1 00 to $2 00/MMBtu to transport the LNG to overseas ports, LNG produced in the United States is globally competitive at these prices  If LNG from the new liquefaction capacity coming online can be produced and delivered with similar economics, the cost advantage may create an opportunity for U S  LNG in bunker supply  There are over 400 petroleum fuel bunkering ports in the world, but 60% of bunkering in recent years has happened in six countries: Singapore, the United States, China, the United Arab Emirates, South Korea, and the Netherlands  Of these countries, only the United States is a significant LNG producer  Therefore, the United States could be a favorable source of LNG for domestic bunkering and for bunkering at the other major ports  While the LNG industry historically has had a good safety record, there are unique safety risks associated with LNG in vessel operations  Leakage of LNG during LNG shipping or bunkering can pose several hazards  LNG is stored at temperatures below -162 °C (-260 °F), far below the -20°C at which the carbon steels typically used in shipbuilding become brittle  Consequently, extreme care must be taken to ensure that LNG does not drip or spill onto ship hulls or decking because it could lead to brittle fracture, seriously damaging a ship or bunkering barge  LNG spilled onto water can pose a more serious hazard as it will rapidly and continuously vaporize into natural gas, which could ignite  The resulting "pool fire" would spread as the LNG spill expands away from its source and continues evaporating  A pool fire is intense, far hotter and burning far more rapidly than oil or gasoline fires, and it cannot be extinguished; all the LNG must be consumed before it goes out  Because an LNG pool fire is so hot, its thermal radiation may injure people and damage vessels or property a considerable distance from the fire itself  Many experts agree that a large pool fire, especially on water, is the most serious LNG hazard  Leaks of boil-off gas (the small amount of LNG that vaporizes in storage) can also release natural gas into a port area and cause fires or explosions  Major releases of LNG from large LNG carriers would be most dangerous within 500 meters of the spill and would pose some risk at distances up to 1,600 meters from the spill  While a bunkering barge or a vessel using LNG for fuel contains far less LNG than large LNG carriers, LNG spills in bunkering operations could still be a significant concern  Risks associated with bunkering LNG are complicated in ports seeking to engage in "simultaneous operations" during the bunkering process  Simultaneous operations entail loading and unloading cargo and personnel from a ship, maintenance, and other logistical operations performed while a ship is bunkering  Accidents that occur during such operations (for example, the operation of heavy machinery near pipes transporting LNG) can result in a spill of LNG which can threaten workers positioned near the site of operations  LNG tankers, bunkering vessels, and land-based facilities could be vulnerable to terrorism  Bunkering tanks or vessels might be physically attacked to destroy the LNG they hold—and vessels might be commandeered for use as weapons against port or coastal targets  Potential terrorist attacks on LNG terminals or tankers in the United States have long been a key concern of the public and policymakers in the context of large scale LNG imports or exports because such attacks could cause catastrophic fires in ports and nearby populated areas  For example, a 2007 report by the Government Accountability Office stated that, "the ship-based supply chain for energy commodities," specifically including LNG, "remains threatened and vulnerable, and appropriate security throughout the chain is essential to ensure safe and efficient delivery " Affected communities and federal officials continue to express concern about the security risks of LNG  The potential risks from terrorism to LNG bunkering infrastructure may be different than those of larger LNG import or export operations due to smaller quantities of LNG involved, but the risks may become more widespread if LNG bunkering operations are established in more locations  The Maritime Transportation Security Act (MTSA, P L  107-295 ) and the International Ship and Port Facility Security Code give the Coast Guard far-ranging authority over the security of hazardous materials in maritime shipping  The Coast Guard has developed port security plans addressing how to deploy federal, state, and local resources to prevent terrorist attacks  Under the MTSA, the Coast Guard has assessed the overall vulnerability of marine vessels, their potential to transport terrorists or terror materials, and their use as potential weapons  The Coast Guard has employed these assessments to augment port security as necessary and to develop maritime security standards for LNG port facilities  The IMO's overall framework for controlling vessels emissions (MARPOL Annex VI) has been in place since 2005  While the United States, as an IMO member, is subject to the IMO's 2020 sulfur standards, the international standards apply equally to all parties and all vessels  The impacts of sulfur standards on bunker fuel have been an important consideration, but IMO member nations have agreed to the standards independent of any particular energy policies  Moreover, MARPOL Annex VI preceded the U S  shale gas boom, so commitment to that initial IMO framework could not have anticipated United States' current role as a dominant energy producer  Any changes within the international shipping fleet to install sulfur scrubbers, fuel engines with LNG, or switch to other low sulfur fuels, are being driven primarily by market forces in fuel supply, shipbuilding, and shipping—not by any particular push to favor one fuel over another  Nonetheless, given its particular status, the question arises whether the standards may create an economic opportunity for the United States, in energy or otherwise  More specifically, could international adoption of LNG as a bunker fuel create an important new market for U S  natural gas producers, shipbuilders, or infrastructure developers? As discussed above, depending upon the adoption of LNG bunkering in the global fleet, the LNG bunker fuel market could grow to several billion dollars by 2030  If U S  LNG producers were to supply a significant share of this market—on the strength of comparatively low LNG production costs—LNG bunkering could increase demand for U S  natural gas production, transportation, and liquefaction  Opportunities in LNG-related shipbuilding might be more limited, as most of this occurs overseas, with the exception of Jones Act vessels  In the latter case, demand for domestically-constructed LNG bunkering barges could be one significant area of economic growth  Engineering and construction firms could benefit from new opportunities to develop new port infrastructure for LNG storage and transfer  While likely limited in number, such port facilities could be complex, high value projects costing tens or hundreds of millions of dollars to complete  Such projects could create jobs in engineering, construction, and operation, which could be important to local communities  Although LNG bunkering could present the United States with new economic opportunities, it may pose challenges as well  Rising demand for LNG in the maritime sector could increase natural gas prices for domestic consumers  In addition to being the world's largest natural gas producer, as of 2018, the United States is also the world's largest producer of crude oil and the second largest bunkering hub  Consequently, while vessel conversion to LNG bunkering may increase demand for U S -produced natural gas, it could be partially offset by reduced demand for U S -produced crude oil or refined products  Exactly how changing demand in one sector could affect the other is unclear  Furthermore, while LNG can reduce pollutant emissions from vessels, emissions and environmental impacts from increased natural gas production and transportation could increase overall emissions  Much of the net environmental impact depends upon practices in the natural gas industry, which are the subject of ongoing study and debate  Although new LNG bunkering infrastructure can create jobs, as the Tacoma LNG projects shows, the construction of such port facilities can be controversial for reasons of safety, security, and environmental impact  Overarching the considerations above is uncertainty about how the global shipping fleet will adapt to the IMO sulfur standards over time  This uncertainty complicates decisions related to both private investment and public policy  LNG-fueled ships still account for only a fraction of the U S  and global fleets, and it may take several decades for significant benefits of LNG-powered vessels to be realized  It is also possible that alternative ship fuels, including biofuels, electric engines, and hybrid engines, will become more economically viable in coming years  Given the uncertainty surrounding the future of LNG as a ship fuel, it is hard to predict the potential benefits or costs that LNG bunkering may provide to the United States  Until now, the private sector has added LNG-fueled vessels to fleets in the United States in a piecemeal manner under existing federal statutes and regulation  Congress could encourage the growth of LNG bunkering by various means, such as providing tax incentives to support the construction of LNG bunkering facilities and vessels, addressing any statutory or regulatory barriers to bunkering facility siting or operations, and providing funding for technical support to domestic carriers seeking to adopt LNG technology  Alternatively, Congress could seek to encourage competing bunker fuel options, such as biofuels, by incentivizing them in similar ways  In addition, Congress could also affect growth in LNG bunkering through policies affecting the LNG industry or domestic shipping industry as a whole  Changes in federal regulation related to natural gas production, or changes to the Jones Act, for example, while not directed at LNG bunkering, could nonetheless affect its economics  Therefore, evaluating the potential implications on LNG bunkering of broader energy, environmental, or economic objectives may become an additional consideration in congressional oversight and legislative initiatives  If LNG bunkering expands significantly in U S  ports, Congress also may examine the adequacy of existing measures to ensure the safety and security of LNG vessels, storage, and related facilities 

ground_truth: The United States is a member of the OAS, PAHO, IICA, and PAIGH, which promote democracy, health care, agricultural development, and scientific exchange. GAO was asked to review U.S. assistance to these four organizations. In this report, GAO (1) assesses the extent to which the organizations' strategic goals align with those of U.S. agencies; (2) examines how the organizations oversee the use of their funds and the extent to which U.S. agencies have supported those efforts; (3) assesses the extent to which U.S. agencies included key monitoring provisions as part of assistance agreements; and (4) assesses the extent to which U.S. agencies had documentation of monitoring activities, including those called for by these provisions. GAO analyzed documents and interviewed officials from State, USAID, HHS, USDA, and the organizations. GAO also analyzed a nongeneralizable sample of 12 of the 60 assistance agreements that were awarded by State, USAID, HHS, and USDA to OAS, PAHO, and IICA and were active during calendar years 2014 through 2016. For each agency, GAO selected three agreements with the lowest, median, and highest dollar value. GAO found that strategic goals of the Organization of American States (OAS), the Pan American Health Organization (PAHO), the Inter-American Institute for Cooperation on Agriculture (IICA), and the Pan-American Institute of Geography and History (PAIGH) are predominantly aligned with the strategic goals of the Department of State (State), the U.S. Agency for International Development (USAID), the Department of Health and Human Services (HHS), and the U.S. Department of Agriculture (USDA). For example, IICA's strategic goals of a productive agricultural sector, enhancing agricultural development, and food security are aligned with USDA's foreign assistance goals. State, USAID, HHS, and USDA fund activities in the form of assistance agreements (e.g., grants and cooperative agreements) with OAS, PAHO, and IICA, which in 2016 totaled $32 million. According to agency officials, the agencies employ mechanisms to ensure that these agreements align with U.S. strategic goals. OAS, PAHO, IICA, and PAIGH have established mechanisms for overseeing their use of funds, such as external auditors, internal audit boards, and anti-fraud and ethics policies. State and USDA have directly supported these mechanisms. For example, State engaged in the selection process for OAS's Inspector General. GAO's review of 12 selected assistance agreements found that USDA included no financial or performance monitoring provisions in one of its agreements and that State did not include two key monitoring provisions in one of its agreements, called for by applicable guidance. GAO found that the remaining 10 agreements it reviewed contained all key monitoring provisions and that State has since taken corrective action. GAO found that U.S. agencies did not have full documentation of 18 of the 42 monitoring activities required by the 12 assistance agreements GAO reviewed (see table). For example, USDA did not have full documentation, such as for financial reports, of any of its 10 required monitoring activities and USDA officials did not explain their lack of documentation. USAID officials explained that their lack of full documentation was due, in part, to grant officers not always following their document management policies. State and HHS have since taken corrective action. If an agency does not have full documentation of monitoring activities, it may lack information needed to make appropriate budgetary and programmatic decisions. GAO recommends that (1) USDA ensure inclusion of all monitoring provisions as part of agreements and (2) USAID and USDA ensure full documentation of monitoring activities. USDA and USAID concurred with GAO's recommendations.