Public Comments Received in Response to NASA Federal Register Notice of July 17, 2019 

(84 Fed. Reg. 34206) and NASA Responses

Brigham Young University

Comment: Notwithstanding [our] support, we strongly encourage NASA to align its reporting 

requirements with the National Science Foundation (NSF) reporting requirements that have 

already been put in place. Standardizing reporting requirements across federal funding agencies 

is the best way to effect compliance from recipients of federal financial assistance that have 

grants from or contracts with multiple agencies. . . Although the NSF reporting requirements are 

similar to the reporting requirements described in NASA’s notice, several important differences 

exist, including the reporting period, the point at which administrative actions must be reported, 

and the requirements for reporting convictions of sexual offenses. These inconsistences should 

be addressed in an effort to reduce the administrative burden of compliance. The adoption of 

differing reporting requirements across federal agencies places an unnecessary administrative 

burden on recipients of federal financial assistance and creates the potential for confusion. In 

contrast, having uniform reporting requirements would promote efficiency and institutional 

compliance. Accordingly, we request that NASA work with other federal agencies, including 

NSF, to align its reporting requirements with similar existing requirements and to establish a 

consistent standard prior to moving forward with the proposed term and condition.

NASA Response: NASA has fully aligned its reporting requirements with the National Science 

Foundation’s (NSF’s). The single difference between NASA’s proposed term and condition and 

the term and condition issued by NSF in 2018, is the length of time to report findings of sexual 

harassment. NSF’s term and condition provides for 10 business days to report; NASA’s proposed 

term and condition provided for seven business days. NASA has revised its timeframe from 

seven to 10 business days to bring the two timeframes into conformity.

Council on Governmental Relations (COGR), Et al. 

Comment 1: Reporting administrative action taken regarding a PI or Co-I to NASA during an 

investigatory process. NASA’s proposal would require institutions to report if “the PI or the Co-I 

is placed on administrative leave or if the recipient has imposed any administrative action on the 

PI or the Co-I.” As defined in the new reporting requirement, “administrative action” captures a 

vast array of temporary actions, which could be and frequently are preliminary to any findings or 

conclusions. Such actions can relate to activities including “but not limited to the following: 

teaching, advising, mentoring, research, management/ administrative duties, or presence on 

campus.” These preliminary or interim measures are non-punitive and designed to protect all 

parties involved pending an outcome of an investigation. In addition, we believe a reporting 

requirement based on administrative actions could chill the use of these important interim 

measures out of concern that NASA may create a record or take action against a PI or

Co-I prematurely. As an alternative to the current recommendation, we recommend that NASA 

narrow this proposed reporting requirement. One option would be to require reporting only in 

situations where administrative leave has been imposed and the PI or Co-I has been found 

responsible but is appealing the adjudication, or when the terms of a pre-adjudication leave 

would affect performance under the award.
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We also urge NASA to rely on existing approval processes in lieu of awardee institutions’ 

reporting of administrative actions taken regarding the PI or Co-I. NASA already has approval 

procedures for substituting a PI or Co-I when a leave could impact performance. The NASA 

approval procedures for substituting a PI or Co-I when performance is impacted provides the 

agency with appropriate notice of this change. Adding an additional notification requirement 

pertaining to that same PI or Co-I whose performance is impacted by administrative leave during 

an investigation of reported harassment risks incurring greater costs than the benefits achieved. 

For these reasons, we recommend that NASA strike the requirement that notification be given to 

NASA for any administrative action and focus on those that impact performance of the NASAfunded project.

NASA Response: NASA seeks to ensure consistency with NSF’s grant term and condition on 

harassment reporting to ease the administrative burden on recipients that can be caused by 

differing external requirements. As our definition of administrative leave is consistent with 

NSF’s, NASA declines to limit to final disposition. In addition, NASA views one of the primary 

purposes of a recipient institution in taking an action such as placing an individual on 

administrative leave is to better ensure the safety, including psychological and physical safety, of 

the research environment and the academic community. In the interest of ensuring safe and 

inclusive research environments, NASA is confident that recipient institutions, including 

universities and other entities, which are committed to safety and inclusion, will continue to 

utilize these kinds of actions, when it is appropriate to do so. 

Comment 2: Clarification is needed on reportable action. The proposed reporting requirement 

describes “Administration Leave/ Administrative Action” as “Any temporary/ interim 

suspension or permanent removal of the PI or Co-I, or any administrative action

imposed on the PI or the Co-I by the recipient under organizational policies or codes of conduct,

statutes, regulations, or executive orders, relating to activities, including but not limited to the 

following: teaching, advising, mentoring, research, management/ administrative duties, or 

presence on campus.” But there is no real definition of what constitutes an administrative action.

The 116th Congress is currently considering H.R. 36 “Combatting Sexual Harassment in Science 

Act of 2019.” The legislation, as passed by the House of Representatives, includes language 

calling on the Director of the Office of Science and Technology Policy to develop policy 

guidelines that define administration action as “administrative action, related to an allegation 

against grant personnel of any sexual harassment or gender harassment, as set forth in 

organizational policies or codes of conduct, statutes, regulations, or executive orders, that 

affects the ability of grant personnel or their trainees to carry out the activities of the grant.”

We ask that NASA consider including this language in the final NASA reporting requirements.

NASA Response: NASA defines “Administrative Action/Administrative Leave” as “Any 

temporary/interim suspension or permanent removal of the PI or Co-I, or any administrative 

action imposed on the PI or Co-I by the recipient under organizational policies or codes of 

conduct, statutes, regulations, or executive orders, relating to activities, including, but not limited 

to, the following: teaching, advising, mentoring, research, management/ administrative duties, or 

presence on campus.” While we appreciate the suggested language, we view it as placing 

unnecessary limitations on the requirement. In addition, the current language is consistent with 
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NSF’s definition. Finally, as Congress has not enacted the proposed legislation into law, NASA 

declines to accept this comment and will retain the current definition.

Comment 3: The reporting requirement may have unintended consequences. If the report to 

NASA forms the basis for a NASA decision, and is subject to the Freedom of Information

Act (FOIA), a graduate student, research trainee, postdoctoral researcher, or other grant 

personnel may be legitimately concerned that the release of such a report could impact their 

future employment opportunities. This would be especially troubling in a situation that results in 

no findings. A graduate student, research trainee, postdoctoral researcher, or other grant 

personnel would also need to weigh their decision to bring forth an allegation with the 

understanding that such a report may lead to the removal of funding that is being used to support 

the research grant, which may be detrimental to their career progress. To mitigate these 

unintended consequences, we recommend revising the language of the new reporting 

requirement to emphasize the NASA process to substitute a PI or Co-I, rather than

suspension or termination of the award. We appreciate the process proposed by NASA that will 

allow “the recipient, at any time, to propose a substitute investigator if it determines the PI or any 

Co-I may not be able to carry out the funded project or activity and/or abide by the award terms 

and conditions.”

NASA Response: The proposed NASA term and condition aligns with the National Science 

Foundation term and condition. Both agencies reference the possibility of substitution or removal 

of a PI or Co-I, as well as the possibility of suspension or termination. They do so in the context 

of an agency review of the report and a consultation between the agency and the recipient

institution. This consultation seeks in part to ensure that “the recipient has taken appropriate 

action(s) to ensure the continuity of science and that continued progress under the funded project 

can be made.” In addition, NASA recognizes the sensitivity of the information that may be 

contained in the notifications and will take appropriate steps to manage such information 

consistent with the Privacy Act, the Freedom of Information Act and other applicable federal 

laws. 

Comment 4: Initiation of the Substitution or Removal of the PI or any Co-I. We also understand 

that upon receipt of and review of the information, NASA “may, if necessary and in accordance 

with 2 CFR 200.338, assert its programmatic stewardship responsibilities to initiate the 

substitution or removal of the PI or any Co-I, reduce the award funding amount, or where neither 

of those previous options is available or adequate, to suspend or terminate the award.” Before 

taking such a drastic course of action as terminating the award, we request that NASA work with 

the Authorized Organizational Representative (AOR) to discuss and exhaustively explore all 

other options.

NASA Response: NASA will first engage the recipient institution to discuss options including, 

but not limited to, use of a substitute PI or Co-I. NASA anticipates that action to 

suspend/terminate the award will be necessary only if the recipient does not identify a reasonable 

alternative. If, based on the factors identified above, the recipient institution determines that it is 

appropriate to initiate use of a substitute PI on the award, and then at some future point, the 

administrative leave or administrative action is lifted, or if the PI or Co-I is found not to have 

violated the recipient’s policies, codes of conduct, statutes or regulations or executive orders 
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relating to sexual harassment, the recipient should work with NASA regarding reinstatement of 

the PI to the award. 

Comment 5: Clarity is needed on confidentiality and use of reported information. We are very 

concerned about the prospect that sensitive personnel information, not otherwise public, could 

become public under FOIA. We ask that NASA carefully examine this issue and modify the 

proposed reporting requirements with clarifying language which sufficiently addresses these 

concerns. This will be particularly important if NASA chooses to maintain the reporting 

obligations in the new term and condition, which will result in the information arising from 

matters under an investigation that may not even lead to a finding of a violation. NASA should 

make clear in the new reporting requirements how it will handle reported information. Will it be 

shared with other agencies? Although we strongly recommend that NASA not mandate the 

reporting of all kinds of administrative actions, should the agency maintain that proposed 

requirement, it will be important for NASA to have a way to update its records following an 

institutional finding of no responsibility. Prior to implementation, NASA should be confident 

that its internal processes and protocols will fully address reasonable concerns. At the minimum, 

if a report is triggered before an investigation concludes and the investigation yields no 

“finding/determination,” which would require the awardee to provide further information to 

NASA, the agency should clearly note that in any archived material pertaining to that report.

NASA Response: NASA recognizes the sensitivity of the information that may be contained in 

the notifications and will take appropriate steps to manage such information consistent with the 

Privacy Act, the Freedom of Information Act and other applicable federal laws. Importantly, 

NASA makes it clear in its proposed term and condition that it does not require names other than 

those of the relevant PI or Co-I and that other names must not be included. 

NASA also recognizes that, because of the sensitivity of the information contained in the 

notifications, there is a need to limit exposure of this information on grant management systems 

and will protect the information consistent with federal law referenced above. NASA intends to 

follow the methodology of NSF in this regard, developing a secure mechanism by which the 

notifications will be routed directly to the NASA Office of Diversity and Equal Opportunity and 

limiting access to only those NASA personnel with an express need to know. NASA also has 

revised the term and condition to make clear to those submitting notifications not to include 

names other than the PI or Co-I. NASA has an obligation to keep complete and accurate records.

Therefore, as part of the internal process to implement the term and condition, NASA will 

clearly note in its records when a recipient institution finds that an alleged harasser did not 

engage in harassment. 

Comment 6: The intersection with privacy regulations and state laws could pose conflicts.

We have concerns about how the new reporting requirements will coincide with the Family 

Educational Rights and Privacy Act (FERPA) and other federal privacy regulations or state laws, 

which may prohibit sharing information on student and personnel matters outside of the higher 

education institution. We have concerns that there may be overlap or redundancy that could 

create conflicting legal obligations for higher education institutions. It is possible that conflicts 

between the NASA reporting requirement and other privacy regulations and laws may cause 

confusion for recipients and create questions about which legal obligation takes precedent.
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NASA Response: NASA agrees that in a rare circumstance that a PI or co-I is a student subject 

to FERPA, this reporting requirement could conflict with FERPA’s statutory prohibitions. 

Accordingly, footnote four was adjusted to note that institutions should comply with FERPA in 

these circumstances. With regard to state laws and regulations, many state privacy laws contain 

language allowing for information disclosure to federal agencies, and if there were to be a 

conflict, traditional preemption doctrines would apply. 

Comment 7: Subrecipient reporting should be the subrecipient’s responsibility. The proposed 

reporting requirement includes the requirement that “Recipient agrees to insert the

substance of this term and condition in any subaward/ subcontract involving a co-investigator. 

Recipient will be responsible for ensuring that all reports, including those related to coinvestigators, comply with this term and condition.” We recommend that if a subrecipient has a 

reportable finding/determination, compliance with this rule shall be the direct responsibility of 

the subrecipient. Due to privacy concerns, it is not appropriate for the primary award recipient to 

have direct knowledge of the investigation being conducted by a subrecipient. The primary 

award recipient’s responsibility should be limited to passing through the appropriate terms and 

conditions from the prime award for inclusion in the subaward. We suggest that the subrecipient 

provide the subrecipient’s report directly to NASA. Any changes that directly impact the 

performance of the subaward or the prime recipient’s obligation to NASA should be 

communicated via the prior approval requirements of the subrecipient’s subaward. Any 

temporary/interim suspension or permanent removal of the PI or Co-I should be in accordance 

with the subrecipient’s policies or codes of conduct, as well as any relevant statutes, regulations, 

or executive orders. 

NASA Response: NASA agrees that the primary award recipient’s responsibility should be 

limited to passing through the appropriate terms and conditions from the prime award for 

inclusion in the subaward. NASA has revised the term and condition to require the subrecipient’s 

Authorized Organizational Representative to report notifications directly to NASA. The 

subrecipient must act in accordance with Title 2 Code of Federal Regulations, Section 200.331, 

Requirements for Pass-Through Entities. 

Comment 8: Interaction with pending Title IX rules and other existing federal and state rules. 

Colleges and universities have a clear and unambiguous responsibility under Title IX of the 

Education Amendments of 1972 to respond to allegations of sexual harassment, including sexual 

assault. . . There are laws in addition to Title IX that address sexual harassment involving 

employees –most notably Title VII of the Civil Rights Act of 1964, but also numerous state and 

local laws. The overlapping but different requirements imposed by the new term and condition, 

Title VII, and state and local antidiscrimination laws could cause confusion and create 

conflicting obligations for institutions that are committed to complying with all applicable laws. 

Federal policy needs to give institutions enough flexibility to ensure that all legal and other 

obligations—no matter their source—are properly addressed when resolving sexual harassment 

allegations. The U.S. Department of Education published a proposed Title IX rule in late 2018 

and the higher education community submitted comments in January 2019.1 When the rule is 

1 https://www.acenet.edu/news-room/Documents/Comments-to-Education-Department-on-ProposedRule-Amending-Title-IX-Regulations.pdf and https://www.aau.edu/sites/default/files/AAU-Files/Key-
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finalized later this year, colleges and universities will likely undertake changes in campus 

structures in regards to the implementation of the final rule. This, as well as the new terms and 

condition from NSF, NASA, and other federal agencies, without coordination or shared 

definitions, can make the process confusing and more complicated for the person reporting the 

harassment and the institution implementing the various rules. This is especially true as the Title 

IX offices are often the offices tasked with carrying out the new rules, while the AOR has the 

ultimate reporting duty to NASA. We ask wherever possible, NASA utilize existing definitions 

and harmonize with other federal agencies regarding existing rules and reporting requirements. 

NASA Response: NASA is coordinating its efforts with the White House National Science and 

Technology Joint Committee on Science and Technology Subcommittee on Coordinating 

Administrative Requirements for Research and the Subcommittee on Safe and Inclusive 

Research Environments to ensure NASA is proceeding in a coordinated manner with other 

agencies, including the National Science Foundation. This coordination includes utilizing 

existing definitions and harmonizing with other federal agencies regarding existing rules and 

reporting requirements, wherever possible. 

Comment 9: An appeals process is needed. NASA should provide for an appeals process for any 

determinations made with the new term and condition. This should also be coordinated with any 

institutional appeals process and is especially important as institutions often have complex multilayered appeals procedures. A NASA appeals procedure is particularly necessary in cases in 

which an interim measure (e.g. administrative action) is imposed and reported to NASA but 

where the PI or Co-I is ultimately found not responsible. The outcome of an appeals process, 

whether at NASA or the institution, should be promptly shared between NASA and the 

institution. Also, please know that institutions welcome the opportunity to work with 

NASA in the development of an appeals process. 

NASA Response: NASA declines to establish an appeals process related to this term and 

condition. Federal civil rights laws and regulations prohibiting discrimination and harassment by 

recipients of federal financial assistance, including NASA regulations, provide recipients with 

due process rights for action taken by the Agency address a finding of non-compliance with 

these laws and regulations. The Agency will not take such action until it determines that 1) the 

recipient’s compliance cannot be secured by voluntary means, (2) there has been an express 

finding on the record, after opportunity for hearing, of a failure to comply with a requirement and 

(3) the action has been approved by the NASA Administrator.

Comment 10: Submission of notification to NASA should be secure. The Federal Register notice 

indicates that notifications must be submitted by the AOR via email to NASA’s Office of 

Diversity and Equal Opportunity via email at: civilrightsinfo@nasa.gov. We recommend 

that NASA consider submission of notifications via a secure web portal rather than through email. 

Issues/Higher-Education-Regulation/AAU-Title-IX-Comments-1-24-19.pdf and

https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/Higher-Education-Regulation/AAU-TitleIX-Comments-1-24-19.pdf
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NASA Response: NASA will develop a secure mechanism by which the notifications will be 

routed directly to the Office of Diversity and Equal Opportunity, which will limit access to only

those NASA personnel with an express need to know. NASA also has revised the term and 

condition to make clear to those submitting notifications not to include names other than the PI 

or Co-I.

Comment 11: Sufficient time is needed for the recipient to report notification of placement on 

administrative leave to NASA. The proposed reporting timeframe of seven (7) business days, 

however, may not allow institutions adequate time, particularly in the case of an administrative 

action. In the National Science Foundation (NSF) “Notification Requirements Regarding 

Findings of Sexual Harassment, Other Forms of Harassment, or Sexual Assault” published on 

September 21, 2018, the final term and condition allows for ten (10) business days for 

notification to NSF from the date of the finding/ determination, or the date of the placement of a 

PI or a Co-I by the awardee on administration leave.” While the difference is slight, it is helpful, 

and we believe there should be harmonization among the federal science agencies on these new 

terms and conditions wherever possible.

NASA Response: NASA has revised the reporting requirement to allow recipients 10 business 

days to report from the date of a finding/determination, the date of the placement of a Co-I on 

leave or the imposition of another administrative action.

Comment 12: Implementation. According to the Federal Register notice, “upon receipt and 

resolution of all comments, it is NASA’s intention to implement the new term through revision 

of NASA’s “Agency Specific Requirements to the Research Terms and Conditions, the Grant 

General Conditions, and the Cooperative Agreement-Financial and Administrative Terms and 

Conditions.” We strongly encourage NASA’s Office of Civil Rights to thoroughly review and 

consider the comments received from the higher education and scientific communities before 

taking any action to implement these new reporting requirements. We also encourage NASA to 

consider convening a small roundtable discussion with key stakeholders from universities to 

discuss the new reporting requirements before implementing them. An open and comprehensive 

dialogue between NASA and the community is essential if we are to combat and end sexual 

harassment in the scientific workplace.

NASA Response: NASA is thoroughly reviewing and considering all comments received. The 

Agency is aware that NSF held a roundtable discussion with key stakeholders before 

implementing its harassment reporting requirements. NASA intends to hold a diversity, equity 

and inclusion summit that will include discussion of its new requirements. 

University of California System

Comment 1: Consistency. UC is primarily concerned with inconsistencies that exist between

NASA’s proposal and NSF’s term and condition. Should other federal grant-making agencies 

propose similar terms to require reporting of Sexual Violence and Sexual Harassment (SVSH 

policy) or other forms of harassment, UC is concerned that there would be a patchwork of 

possibly conflicting and burdensome requirements from agencies seeking to follow NSF’s and 

NASA’s example. UC first and foremost recommends consistency across federal grant-making 

agencies to avoid confusion about different reporting requirements. 
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NASA Response: NASA is carefully reviewing all comments it has received requesting 

conformity between its reporting requirements and those of NSF. In addition, we are 

coordinating our efforts through the White House National Science and Technology Joint 

Committee on Science and Technology Subcommittee on Coordinating Administrative

Requirements for Research and the Subcommittee on Safe and Inclusive Research Environments 

to ensure NASA is proceeding in a coordinated manner with other agencies.

Comment 2: Timing of Notification. NASA’s proposal requires the recipient’s Authorized

Organizational Representative (AOR) to submit a report within seven business days from the 

date of a finding/determination, the date of the placement of a (co-)PI on leave or the imposition 

of another administrative action. This timeline is both insufficient and inconsistent with NSF’s 

term and condition, which provides ten days to submit the necessary report. A discrepancy 

between NASA’s and NSF’s reporting deadlines, as currently proposed, would be burdensome 

on IHEs that are already tasked with maintaining compliance with multiple and often conflicting 

agency requirements, and would increase the risk of errors and missed reporting deadlines by 

grantees. To promote compliance by all institutions that would be subject to the term and 

condition, UC recommends that NASA modify its reporting deadline to ten business days, 

consistent with NSF’s current requirements. 

NASA Response: NASA has revised the reporting requirement to allow recipients 10 business 

days to report from the date of a finding/determination, the date of the placement of a Co-I on 

leave or the imposition of another administrative action.

Comment 3: Role of Subrecipients. UC has concerns regarding the role of subrecipients in the

proposed NASA reporting process. The proposed term states that the recipient agrees to insert 

the term in any subcontract involving a co-investigator, and the recipient will be responsible for 

ensuring that all reports, including those relating to co-investigators, comply with the term. This

appears to imply that reports for co-investigators at subrecipient institutions must be reviewed 

and/or submitted by the recipient’s AOR. Such a requirement would put the recipient institution 

in the position of not only having potentially inappropriate access to sensitive information, but 

also having to determine whether the subrecipient institution has an event triggering NASA 

notification, and whether it has properly complied with the subrecipient’s own policies and 

procedures, with which the recipient would be unfamiliar. We are likewise concerned that the 

subrecipient would be required to submit such sensitive and premature information to primary 

awardees. We strongly urge NASA to revise this requirement to be consistent with the NSF 

process so that subrecipient institutions submit their own reports directly to NASA. 

NASA Response: NASA agrees that the primary award recipient’s responsibility should be 

limited to passing through the appropriate terms and conditions from the prime award for 

inclusion in the subaward. NASA has revised the term and condition to require the subrecipient’s 

Authorized Organizational Representative to report notifications directly to NASA. The 

subrecipient must act in accordance with Title 2 Code of Federal Regulations, Section 200.331, 

Requirements for Pass-Through Entities.
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Comment 4: Privacy. Reports of SVSH and assault potentially contain highly sensitive 

information not only about the respondent, but about the reporting parties and witnesses, who 

may be concerned about retaliation and other adverse effects on their careers. An effective SVSH 

investigation therefore requires impartiality, discretion and professionalism. These factors not 

only ensure a fair and thorough factual inquiry, but also protect the privacy, safety and 

reputations of all involved parties. The imperative of protecting privacy and respecting due 

process during an investigation is why UC is particularly concerned with the proposed 

requirement that universities report to NASA certain open investigations, i.e., those where a (co-

)PI has been put on leave during the course of the investigation. Such a requirement can 

compromise investigations, interfere with the rights of both the reporting party and the party 

under investigation, undermine due process, lead to misunderstandings of NASA’s role in 

investigations and damage careers, including those of the (co-)PIs, co-workers and students. 

NASA Response: NASA views one of the primary purposes of a recipient institution in taking an 

action such as placing an individual on administrative leave is to better ensure the safety, 

including psychological and physical safety, of the research environment and the academic 

community. In the interest of ensuring safe and inclusive research environments, NASA is 

confident that recipient institutions, including universities and other entities, which are 

committed to safety and inclusion, will continue to utilize these kinds of actions, when it is 

appropriate to do so. 

NASA recognizes the sensitivity of the information that may be contained in the notifications 

and will take appropriate steps to manage such information consistent with the Privacy Act, the 

Freedom of Information Act and other applicable federal laws. Importantly, NASA makes it 

clear in its proposed term and condition that it does not require names other than those of the 

relevant PI or Co-I and that other names must not be included. 

NASA also recognizes that, because of the sensitivity of the information contained in the 

notifications, there is a need to limit exposure of this information on grant management systems. 

NASA intends to follow the methodology of NSF in this regard, developing a secure mechanism 

by which the notifications will be routed directly to the NASA Office of Diversity and Equal 

Opportunity and limiting access to only those NASA personnel with an express need to know. 

NASA also has revised the term and condition to make clear to those submitting notifications not 

to include names other than the PI or Co-I. As part of the internal process to implement the term 

and condition, NASA will clearly note in its records when a recipient institution finds that an 

alleged harasser did not engage in harassment.

Comment 5: Family Educational Rights and Privacy Act of 1974 (FERPA). In addition, the

university must comply with FERPA, a federal law that protects the privacy of student education

records. In the Reporting Requirements Regarding Findings of Harassment, Sexual Harassment, 

Other Forms of Harassment, or Sexual Assault we noted that footnote 1 of subsection (e) 

expressly states that the identification of the complainant or other individuals involved in the 

matter must not be included in the report, which protects the privacy of the complaining party, 

including students. However, the proposed NASA reporting obligations could conflict with 

FERPA in the uncommon instance when the co-(PI) alleged to have engaged in harassment is a 

graduate student. 
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NASA Response: NASA agrees that in a rare circumstance that a PI or co-I is a student subject 

to FERPA, this reporting requirement could conflict with FERPA’s statutory prohibitions. 

Accordingly, footnote four was adjusted to note that institutions should comply with FERPA in 

these circumstances. NASA recognizes the sensitivity of the information that may be contained 

in the notifications and will take appropriate steps to manage such information consistent with 

the Privacy Act of 1974, the Freedom of Information Act and other applicable federal laws. 

Importantly, NASA makes it clear in its proposed term and condition that it does not require 

names other than those of the relevant PI or Co-I and that other names must not be included. 

With regard to state laws and regulations, many state privacy laws contain language allowing for 

information disclosure to federal agencies, and if there were to be a conflict, traditional 

preemption doctrines would apply

Comment 6: Reports via Email. NASA’s proposed term would also require the recipient’s AOR 

to submit the necessary reports to NASA via email. Given the sensitive nature of the information 

contained in these reports, UC is concerned that this method of transmittal is not secure and may 

increase the risk of submission of spurious, malicious or unauthorized reports (i.e., not by the 

recipient’s recognized AOR). UC recommends that reports be transmitted through a more secure 

portal, consistent with the NSF procedures UC also encourages NASA to ensure that there is a 

mechanism to verify that reports are submitted by a valid AOR from the recipient institution. 

NASA Response: NASA will develop a secure mechanism consistent with federal privacy law 

by which the notifications will be routed directly to the Office of Diversity and Equal 

Opportunity, which will limit access to only those NASA personnel with an express need to 

know. NASA also has revised the term and condition to make clear to those submitting 

notifications not to include names other than the PI or Co-I.

Comment 7: Appropriate Handling, Storage and Maintenance of Confidentiality. Grantee

organizations need assurance that NASA will appropriately handle, store and maintain the 

confidentiality of such sensitive information, and NASA should clarify whether the information 

would be protected from potential subpoenas, Freedom of Information Act requests or any other 

legal action. 

NASA Response: NASA will develop a secure mechanism consistent with federal privacy law 

by which the notifications will be routed directly to the Office of Diversity and Equal 

Opportunity, which will limit access to only those NASA personnel with an express need to 

know. NASA also has revised the term and condition to make clear to those submitting 

notifications not to include names other than the PI or Co-I. As to potential subpoenas, Freedom 

of Information Act requests or any other legal action, again, NASA will act in accord with all 

applicable law.

Comment 8: Clarity/Definitions. NASA’s proposed term makes general references to “statutes” 

and “regulations.” UC requests clarification as to whether the reportable findings are limited to 

categories protected under federal civil rights law or whether findings of discrimination and 

harassment expressly protected by state laws and regulations should also be reported.
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NASA Response: NASA has revised the term and condition to add a definitions section. NASA 

defines finding/determination as “The final disposition of a matter involving sexual harassment 

or other form of harassment under organizational policies and processes, to include the 

exhaustion of permissible appeals exercised by the PI or Co-I, or a conviction of a sexual offense 

in a criminal court of law.” The reporting requirement is limited to only federal laws over which 

NASA has jurisdiction.

Comment 9: Impact on Project Members/Reporting. Consequences for violations of SVSH

policy or other harassment policies are determined at the end of the investigation when the 

preponderance of the evidence shows the employee violated policy. UC is concerned that 

NASA’s reporting requirement, as proposed, could irreparably damage NASA-funded projects as 

well as the reputations of individuals involved—particularly if an allegation of harassment or 

assault is not substantiated. Participants on a NASA project, including postdoctoral researchers, 

staff and students, may experience adverse impacts on their current and future professional 

endeavors and livelihoods. As a result, NASA project members may be reluctant to report 

harassment if they believe a report could disrupt or terminate their project. Further, UC is 

concerned that the term does not address NASA’s process in those situations in which a report is 

made concerning allegations that are later found to be unsubstantiated. In such a circumstance, 

UC would expect that names of exonerated PIs or Co-Is would be removed from any allegationrelated internal NASA lists or databases on which they had appeared. 

NASA Response: Civil rights laws and their implementing regulations protect NASA project 

members who report harassment from retaliation. NASA's Office of Diversity and Equal 

Opportunity investigates complaints of retaliation. As to removing names of PIs or Co-Is 

ultimately found not to have engaged in harassment in violation of a recipient’s policy, NASA 

will clearly note in its records when an alleged harasser is found not to have harassed, as it has an 

obligation to ensure the accuracy of our records.

University of Wisconsin-Madison

Comment 1: NASA is proposing that reports be submitted “within seven business days from the 

date of the finding/determination, or the date of the placement of a PI or Co‐I by the recipient on 

administrative leave or the imposition of an administrative action.” Originally, NSF proposed 

that reports be submitted within seven business days. Ultimately, based on public comments, 

NSF decided to allow ten business days to report, which is a more reasonable period of time for 

institutions to convey information. Submission necessitates coordination between multiple 

offices, which takes time.

NASA Response: NASA has revised the reporting requirement to allow recipients 10 business 

days to report from the date of a finding/determination, the date of the placement of a Co-I on 

leave or the imposition of another administrative action.

Comment 2: NASA is requesting that reports be sent to an email address. However, email may

not be a secure form of communication. Given the sensitive nature of the reports, we recommend 

that NASA consider creating a secure website to receive these reports. Again, in response to 

public comments, NSF created a secure website for reporting, and we ask NASA to do the same.
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NASA’s expectations about what should occur if a reportable instance happens at a subrecipient 

institution is not clear. The Notice reads: “(d) Recipient agrees to insert the substance of this 

term and condition in any subaward/subcontract involving a co‐investigator. 

Recipient will be responsible for ensuring that all reports, including those related to co‐

investigators, comply with this term and condition.” This could mean a number of different 

things, including:

The subrecipient institution is responsible for submitting reports to NASA, or

The subrecipient institution must provide information to the recipient, who ensures that all 

required

data elements are included prior to the recipient submitting the report, or

The subrecipient institution must provide information to the recipient, who ensures that all 

required

data elements are included prior to the subrecipient submitting the report, or

The subrecipient institution must provide a certification to the recipient institution that, should 

the subrecipient make a report to NASA, it will do so in compliance with the reporting 

requirements.

As written, the language does not provide clear direction to the recipient and subrecipient. An 

area of concern is privacy. Should an administrative action be taken or administrative leave 

imposed in anticipation of investigating an allegation, the investigation may result in a 

conclusion that a violation did not occur. In this case, an individual’s reputation may be harmed 

if entities other than those with a need to know are privy to the information. NASA should 

clarify expectations and responsibilities for both the recipient and subrecipient and do so in a 

manner that protects privacy. To align with NSF, we recommend that NASA consider requiring 

that reports be submitted directly from the subrecipient to NASA.

NASA Response: In response to the recommendation that NASA create a secure website to 

receive these reports, NASA has developed a secure mechanism by which the notifications will 

be routed directly to the Office of Diversity and Equal Opportunity, which will limit access to 

only those NASA personnel with an express need to know. NASA also has revised the term and 

condition to make clear to those submitting notifications not to include names other than the PI 

or Co-I. In response to the recommendation that NASA should clarify expectations and 

responsibilities for both the recipient and subrecipient, NASA has revised the term and condition 

to require the Authorized Organizational Representative of the subrecipient institution to notify 

NASA directly.