[Federal Register Volume 68, Number 177 (Friday, September 12, 2003)]
[Notices]
[Pages 53862-53866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23248]
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Part IV
Department of Labor
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Research Misconduct; Statement of Policy; Notice
Federal Register / Vol. 68, No. 177 / Friday, September 12, 2003 /
Notices
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DEPARTMENT OF LABOR
Office of the Secretary
Research Misconduct; Statement of Policy
AGENCY: Office of the Secretary, Labor.
ACTION: Statement of policy on Research Misconduct.
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SUMMARY: USDOL hereby publishes its policies that are to be used to
implement the Federal Policy on Research Misconduct issued by the
Executive Office of the President's Office of Science and Technology on
December 6, 2000.
FOR FURTHER INFORMATION CONTACT: Roland B. Droitsch, Deputy Assistant
Secretary for Policy, Office of the Assistant Secretary for Policy,
U.S. Department of Labor at 202-693-5900.
SUPPLEMENTARY INFORMATION: The Office of Science and Technology Policy
issued a final Federal research misconduct policy on December 6, 2000
in 65 FR 76260-76264 (the ``Federal Policy''). The Federal Policy
consists of a definition of research misconduct and basic guidelines to
help Federal agencies and Federally funded research institutions
respond to allegations of research misconduct.
The U.S. Department of Labor (USDOL) is publishing its policies on
research misconduct fully consistent with the Federal Policy. This is a
policy statement intended as a guide to USDOL managers and supervisors.
It is not intended to provide any binding requirements on Department of
Labor agencies, officials, or the public. It is not intended to create
or recognize any legally enforceable right in any person. We refer to
the USDOL policy as the ``USDOL Policy.''
The Federal Policy provides a uniform Federal definition of
research misconduct. It defines research misconduct as fabrication,
falsification, and plagiarism in proposing, performing, or reviewing
research or reporting research results. The Federal Policy also defines
``fabrication'', ``falsification'', and ``plagiarism''. The USDOL
Policy adopts the definition of research misconduct set forth in the
Federal Policy.
Consistent with the Federal Policy, USDOL officials should, as
appropriate, seek to protect research misconduct investigative and
adjudicative files from mandatory disclosure under the Freedom of
Information Act, where permitted by law and regulation.
The Department of Labor Manual Series (DLMS) 8, Audits and
Investigations, Chapter 700--Incident Reporting and Whistleblower
Protection, establishes USDOL procedures and assigns responsibility for
reporting and investigating allegations of wrongdoing that would
include allegations of research misconduct. The USDOL Policy presented
below does not supersede DLMS 8, Chapter 700, but is designed to
provide supplementary policies for research misconduct issues.
Authority: 5 U.S.C. 301 and Federal Register/Vol. 65 No. 235,
December 6, 2000, Notification of Final Policy, Executive Office of
the President, Office of Science and Technology Policy.
Definitions
(1) The ``Federal Policy'' means the Federal research misconduct
policy issued by the Office of Science and Technology Policy on
December 6, 2000 in 65 FR 76260-76264.
(2) ``Research misconduct'' means conduct which a preponderance of
the evidence demonstrates to be a significant departure from accepted
practices or intentional, knowing, or reckless fabrication,
falsification, or plagiarism in proposing, performing, or reviewing
research or reporting research results. Research misconduct does not
include honest error or differences of opinion.
(a) ``Fabrication'' means making up data or results and recording
or reporting them.
(b) ``Falsification'' means manipulating research materials,
equipment, or processes, or changing or omitting data or results such
that the research record is not accurately represented in the research
record.
(c) ``Plagiarism'' means the appropriation of another person's
ideas, processes, results or words without giving appropriate credit.
(3) ``USDOL'' means the United States Department of Labor as an
entity, or to any agency of the United States Department of Labor
acting under the authority of the United States Department of Labor,
with the exception of the Office of Inspector General of the United
States Department of Labor.
(4) ``Appropriate USDOL Agency'' means the USDOL agency that has
supported or contracted for the research that involves an allegation of
research misconduct.
(5) ``OIG'' means the Office of Inspector General of the United
States Department of Labor.
(6) ``Agency Head'' (AH) means the director of a USDOL agency that
has the authority to or has been delegated the authority to commit
USDOL support for research or to purchase research services or products
for the USDOL or one of its agencies.
(7) ``Awardee Institution'' means an institution or organization
that has received research support from a USDOL agency or that has
received a contract or grant to provide research services or products
to a USDOL agency.
(8) ``The USDOL Policy'' means the policy and procedures issued by
the USDOL to deal with allegations of research misconduct involving
research supported by or contracted for by a USDOL agency.
General Policies
(1) USDOL agencies support research activities through grants or
other agreements to provide research support. USDOL agencies also
purchase research services and products through contracts and purchase
orders.
(2) USDOL should take appropriate action against individuals or
institutions upon a finding that research misconduct has occurred while
conducting or performing research that has been supported by a USDOL
agency or that has been contracted for by a USDOL agency.
(3) Allegations of research misconduct against employees of USDOL
while in the performance of their official duties are covered by
existing laws, rules, regulations and Departmental policy relating to
misconduct of its employees, and not by ``The USDOL Policy,'' but in
cases involving alleged research misconduct against DOL employees while
in the performance of their official duties, DOL officials should apply
these laws, rules, regulations and Departmental policy in a manner
consistent with the ``Federal Policy.''
(4) USDOL officials should issue a finding of research misconduct
only after a careful inquiry and investigation by (a) an awardee
institution, (b) by another Federal agency, (c) by the OIG, or (d) by
the Appropriate USDOL Agency. An inquiry consists of preliminary
information-gathering and preliminary fact-finding to determine whether
an allegation or apparent instance of research misconduct has substance
and if an investigation is warranted. An investigation should
ordinarily be undertaken if the inquiry determines the allegation or
apparent instance of research misconduct has substance. An
investigation is a formal development, examination and evaluation of a
factual record to determine whether research misconduct has taken
place, to assess its extent and consequences, and to evaluate
appropriate action.
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Pending Proposals and Awards
(1) Upon learning of alleged research misconduct the appropriate
USDOL Agency should take steps to identify potentially implicated
awards or proposals and, when appropriate, should ensure that program,
grant, and contract officers handling them are informed.
(2) Neither a suspicion nor allegation of research misconduct nor a
pending inquiry or investigation will normally delay review of
proposals. Not informing reviewers or panelists of allegations or of
ongoing inquiries or investigations will avoid inappropriate influence
on their reviews. However, if allegations, inquiries, or investigations
have been rumored or publicized, the responsible Agency Head, after
consultations with the USDOL Office of Solicitor and the appropriate
USDOL contract and grant officers, should consider appropriate steps to
avoid inappropriate influence. They might, for example, defer review,
inform reviewers to disregard the matter, or inform reviewers of the
status of the matter.
Initial USDOL Handling of Research Misconduct Matters
(1) Officials should normally report allegations of research
misconduct on the part of USDOL employees while in the performance of
official duties to the immediate supervisor of the employee(s) against
which the misconduct is alleged. These allegations should be handled
under existing laws, rules, regulations and USDOL policy relating to
misconduct of employees of USDOL. In applying these laws, DOL officials
should consider utilizing the definitions of research misconduct
adopted by the Federal Policy and should consider approaches to the
application of existing laws that maximize consistency with the Federal
Policy.
(2) Individuals or groups of individuals who wish to report
allegations of research misconduct involving research supported by or
contracted for a USDOL agency should report the allegation in writing
either to the Awardee Institution involved or to the Agency Head of the
Appropriate USDOL Agency.
(3) The Agency Head should forward reports of research misconduct
promptly to the OIG.
(4) After forwarding a report of alleged research misconduct to the
OIG, it would contribute to an orderly handling of these matters if the
Agency Head would:
(a) defer further action until informed by the OIG that the OIG
will be conducting an investigation of the allegation or until a
reasonable time period passes without such a notification (The
reasonableness of the time period will depend on the particular
circumstances, but agency heads may wish to consider the
appropriateness of a 30-90 day period);
(b) if informed that an OIG investigation of the allegation will be
conducted, the agency head may wish to defer to the OIG investigation
of the allegation by taking no further investigatory action at that
time;
(5) If the Agency Head is informed by the OIG that there will be no
OIG investigation of the allegation or if a reasonable time period
passes since the Agency Head has referred the allegation of research
misconduct to the OIG, the Agency Head should consider the following
actions:
(a) If the alleged misconduct is with activities under research
support to or contract with an institution or enterprise, inform the
awardee institution or enterprise of the alleged research misconduct,
decide if the institution or enterprise has the capacity to undertake
an inquiry and investigation, and if in the judgment of the Agency Head
that capacity exists, request in writing that the institution or
enterprise undertake an inquiry and, if warranted, an investigation;
should the institution fail to notify the Agency Head within a
reasonable time after receiving the written request that it will be
undertaking an inquiry, the Agency Head may wish to proceed with its
own inquiry and, if warranted, its own investigation. Agency heads may
wish to consider a brief waiting period to hear from the institution,
for example 30 days. They should attempt to conclude their own
inquiries promptly. It will often be possible to conclude an inquiry
within 90 days after its initiation and any investigation within 180
days after its initiation. The Agency Head should call upon all
necessary assistance and expertise that can be provided by the Office
of the Solicitor of the USDOL.
(b) If the alleged misconduct is with activities under research
support to an individual or group of individuals, the Agency Head
should consider proceeding with its own inquiry and, if warranted, its
own investigation after informing each of the individuals of the
alleged research misconduct. it may often be possible to complete any
inquiry within 90 days after its initiation and any investigation
within 180 days after its initiation. The Agency Head should call upon
all necessary assistance and expertise that can be provided by the
Office of the Solicitor of the USDOL.
Roles of Awardee Institutions
USDOL supports research activities in various ways, including the
award of grants, contracts, purchase orders, or other agreements to
provide support. Grants that include support for research activities
are made to institutions, usually to universities and research
institutes, and not directly to individuals. Similarly, most contracts
for research services and products, including purchase orders, are
entered into with institutions, including universities, research
institutes, and business enterprises, rather than directly with
individuals. In some cases, the USDOL will enter into a contract with
or will provide support for research directly to an individual or to a
group of individuals.
When the grant or contract or support of research is awarded
directly to an individual or group of individuals rather than to an
institution or enterprise there will be no role for such an institution
or enterprise.
When the grant or contract or support of research is awarded to an
institution or business enterprise
(1) The awardee institution or enterprise may often be willing to
bear primary responsibility for prevention and detection of research
misconduct and for the inquiry, investigation, and adjudication of
alleged research misconduct. If in the judgment of the Appropriate
USDOL Agency, the awardee institution or enterprise has the capacity to
conduct an inquiry, investigation, and adjudication, the appropriate
USDOL Agency may want to rely on the awardee institution or enterprise
to promptly:
(a) Initiate an inquiry into any suspected or alleged research
misconduct;
(b) Conduct a subsequent investigation, if warranted;
(c) Take action necessary to ensure the integrity of research, the
rights and interests of research subjects and the public, and the
observance of legal requirements or responsibilities; and
(d) Provide appropriate safeguards for subjects of allegations as
well as informants.
(2) If an institution or enterprise wishes the Appropriate USDOL
Agency to defer independent inquiry or investigation, it may eliminate
the need for such inquiry or investigation by:
(a) Completing any inquiry and deciding whether an investigation is
warranted promptly, so that the USDOL Agency can be satisfied that the
public interest will be served. Completion within 90 days would be
preferable. If completion of an inquiry is delayed, but
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the institution wishes USDOL deferral to continue, the Appropriate
USDOL Agency may want to ask the institution to provide periodic status
reports.
(b) Informing the Appropriate USDOL Agency if an initial inquiry
supports a formal investigation.
(c) Keeping the Appropriate USDOL Agency informed during such an
investigation.
(d) Completing any investigation and reaching a disposition within
a reasonable time, preferably within 180 days of the initiation of the
investigation. If completion of an investigation is delayed, but the
institution wishes USDOL deferral to continue, the Appropriate USDOL
Agency may ask the institution to submit periodic status reports.
(e) Providing the appropriate USDOL Agency with the final report
from any investigation.
(3) USDOL believes it is in the public interest that if during an
investigation into research misconduct, any individuals or groups of
individuals become aware of any of the following they should follow the
guidelines in the Federal Policy:
(a) Public health or safety is at risk;
(b) USDOL's resources, reputation, or other interests need
protecting;
(c) There is reasonable indication of possible violations of civil
or criminal law;
(d) Research activities should be suspended;
(e) Federal action may be needed to protect the interests of a
subject of the investigation or of others potentially affected; or
(f) The scientific community or the public should be informed.
(4) To facilitate awareness of the USDOL Policy among contract and
grant research recipients, Agency Heads should consider working with
their contract and grant officers to insert language into contract and
grant documents that makes Awardee institutions aware of the USDOL
Policy and of the Federal Policy. For example, the language could
include informational references to the Federal Policy as stated in the
Federal Register Vol. 65. No. 235, December 6, 2000 and to the
Department of Labor Manual Series (DLMS) Chapter 800.
Investigations
(1) When an awardee institution or the OIG or a Federal agency
other than the Appropriate USDOL Agency, has promptly initiated its own
inquiry and investigation, the Appropriate USDOL Agency may wish to
defer its own inquiry or investigation until it receives the results of
that external inquiry and investigation. If the Appropriate USDOL
Agency does not receive the results of the external inquiry within what
it believes to be a reasonable time, the Appropriate USDOL Agency
should proceed with its own inquiry and, if warranted, its own
investigation. It will often be appropriate for the Agency to proceed
with its own inquiry if it does not receive the results of the external
inquiry within 90 days and to proceed with its own investigation if it
does not receive the results of an external investigation within 180
days.
(2) If the Appropriate USDOL Agency decides to initiate an
investigation, it should be conducted with fairness. Among the fair
procedures that agencies should consider are giving prompt written
notice to the individual or institutions to be investigated where such
notice would not prejudice the investigation or relate to a criminal
investigation that is underway or under active consideration. Where
notice is delayed, agencies should consider the need to give the notice
as soon as it will no longer prejudice the investigation or contravene
requirements of law or Federal law-enforcement policies.
(3) If a criminal investigation by the Department of Justice, the
Federal Bureau of Investigation, or another Federal agency is underway
or under active consideration by these agencies, the Appropriate USDOL
Agency should decide what information, if any, may be disclosed to the
subject of the investigation or to other USDOL employees.
(4) An investigation by the Appropriate USDOL Agency may include:
(a) Review of award files, reports, and other documents already
readily available at USDOL or in the public domain;
(b) Review of procedures or methods and inspection of data,
laboratory materials, and records at awardee institutions;
(c) Interviews with subjects or witnesses;
(d) Review of any documents or other evidence provided by or
properly obtainable from parties, witnesses, or other sources;
(e) Cooperation with other Federal agencies; and
(f) Opportunity for the subject of the investigation to be heard.
(5) The Appropriate USDOL Agency may wish to contract with or
invite outside consultants or experts to participate in a USDOL
investigation.
(6) The Appropriate USDOL Agency should make every reasonable
effort to complete a USDOL investigation and to report its
recommendations, if any, to the Assistant Secretary of Labor for
Administration and Management promptly. It will often be possible to
complete such investigation within 180 days after initiating it, and,
within 60 days after completing the investigation, to submit the
investigative report along with a recommended disposition to the
Assistant Secretary for Administration and Management.
(7) The subject of the investigation may wish to hire legal
representation to assist in responding to allegations.
(8) In many cases, Agency Heads will be relying on outside
inquiries and investigations, e.g., those being conducted by awardee
institutions or by the OIG, or by another federal agency. However,
there may be cases when Agency Heads have no alternative but to conduct
their own inquiry and, if necessary, their own investigation. One
possible way to proceed is to contract out the inquiry and/or
investigation to an institution with expertise in research misconduct
issues, for example, a large research university or professional
organization. Another way would be to proceed with the inquiry and/or
investigation using a panel of experts, both internal and external to
USDOL to review all documents and interview all participants to the
dispute and the allegation and to produce a report. The agency head
should call upon whatever assistance can be provided by USDOL contract
and grant officers and by the USDOL Office of the Solicitor as it
proceeds.
Interim Administrative Actions
(1) After an inquiry or during an external investigation or an
investigation by the Appropriate USDOL Agency, the Assistant Secretary
of Labor for Administration and Management or other appropriate USDOL
official may recommend that interim actions be taken to protect Federal
resources or to guard against continuation of any suspected or alleged
research misconduct. The Assistant Secretary or other appropriate USDOL
official should consider making such recommendation when requested by
the Agency Head of the Appropriate USDOL Agency, and should consult
with the appropriate USDOL Grant or Contract Officer and the Office of
the Solicitor of the USDOL.
(2) When suspension of a grant or contract or other award is
believed to be appropriate, the official responsible for making
decisions should be legally authorized to take such actions and should
ordinarily be the appropriate USDOL Grant or Contract Officer.
(3) Officials should consider taking such interim actions whenever
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information developed during an investigation indicates a need to do
so. The appropriate Grant or Contract Officer should periodically
review such interim actions during an investigation and modify them as
warranted. An interested party may wish to request a review or
modification by the immediate supervisor of the suspending official.
(4) The suspending official should make, and the Appropriate USDOL
Agency should retain, a record of interim actions taken and the reasons
for taking them.
Dispositions
(1) Agency heads should carefully consider any report they may
receive from (a) an external investigation by an awardee institution or
(b) a report from an OIG investigation, or (c) a report from an
investigation by another Federal agency, or (d) a report from an
investigation conducted by the Appropriate USDOL Agency. It would be
appropriate for the Agency Head of the Appropriate USDOL Agency to
assess not only the accuracy and completeness of the report, but also
whether the investigating entity followed reasonable procedures. The
Agency head will ordinarily be able, within 30 days, either to
recommend adoption of the findings in whole or in part or to initiate a
new investigation. If a new investigation is initiated, it can normally
be completed within 90 days of its initiation.
(2) When any satisfactory external investigation or an
investigation by the Appropriate USDOL Agency fails to confirm alleged
misconduct,
(a) the Appropriate USDOL Agency should notify the subject of the
investigation and, if appropriate, those who reported the suspected or
alleged misconduct. This notification may include the investigation
report.
(b) any interim administrative restrictions that were imposed
should ordinarily be lifted.
(3) When a satisfactory external investigation or an investigation
by the Appropriate USDOL Agency confirms misconduct, the agency head,
in consultation with the Office of the Solicitor of USDOL, should
recommend to the Assistant Secretary for Administration and Management
an appropriate disposition and any final actions to be taken by USDOL.
(a) In cases in which debarment from further contracts or grants is
considered by the Appropriate USDOL Agency to be the preferred
disposition, the case should be referred to the relevant office of
contracts and grants management within the USDOL but:
(i) The debarring official should normally be either the Assistant
Secretary of Labor for Administration and Management, or an official
designated by the Assistant Secretary.
(ii) Except in unusual circumstances, the investigation report and
recommended disposition should be included among the materials that
appropriate officials provided to the subject of the investigation as
part of the notice of proposed debarment.
(iii) It would be helpful to the subject if the notice of a
debarring official's decision would include instructions on how to
pursue any appeal.
(b) In other cases,
(i) Except in unusual circumstances, the investigation report
should be provided by the Appropriate USDOL Agency to the subject of
the investigation, who should be invited to submit comments or rebuttal
within a reasonable time period. Thirty days will ordinarily be a
sufficient time period for subjects to submit these comments or
rebuttals. Any response should receive full consideration and may lead
to revision of the report or of a recommended disposition.
(ii) Normally within 60 days after completion of an investigation
by the Appropriate USDOL Agency or the receipt of a report from a
satisfactory external investigation, it will be practicable for the
Agency Head of the Appropriate USDOL Agency to submit to the Assistant
Secretary of Labor for Administration and Management the investigation
report, any comments or rebuttal from the subject of the investigation,
and a recommended disposition. The recommended disposition may include
proposals for any final actions to be taken by USDOL.
(iii) The Assistant Secretary of Labor for Administration and
Management should review the investigation report and the recommended
disposition. The Assistant Secretary may initiate further hearings or
investigation.
Final Actions
(1) In the case of findings of research misconduct involving
research supported by the USDOL or one of its agencies, possible final
actions to be considered are listed below for guidance purposes and
range from minimal restrictions (Group I) to the most severe and
restrictive (Group III). They are not mandated, nor exhaustive and do
not include possible criminal sanctions.
(a) Group I Actions:
(i) Send a letter of reprimand to the individual or institution.
(ii) Require, as a condition of any future award of a grant or
contract or purchase order or other support for research, that for a
specified period an individual or institution obtain special prior
approval of particular activities from the Assistant Secretary for
Administration and Management or the designee of the Assistant
Secretary.
(iii) Require, for a specified period, that an institutional
official other than those guilty of misconduct certify the accuracy of
reports generated under an award or provide assurance of compliance
with particular policies, regulations, guidelines, or special terms and
conditions.
(b) Group II Actions:
(i) Totally or partially suspend an active award, or restrict for
some specified period designated, activities or expenditures under an
active award.
(ii) Require special reviews of all requests for funding or support
of research from an affected individual or institution, for a specified
period, to ensure that steps have been taken to prevent repetition of
the misconduct.
(iii) Require a correction to the research record.
(c) Group III Actions:
(i) Terminate an active award or other agreement of support for
research.
(ii) Require the return to USDOL of any funds that have been
disbursed to the grantee or contractor.
(iii) Prohibit participation of an individual as a USDOL reviewer,
advisor, or consultant for a specified period.
(iv) using prescribed procedures and through the authorized USDOL
official, debar or suspend an individual or institution from
participation in USDOL contracts or grants or purchase orders or
research support for a specified period.
(v) In the event of such debarment or suspension, provide
appropriate documentation to the authorized USDOL official setting
forth the basis for recommending suspension and/or debarment from
government-wide federal contracting and/or grant opportunities for a
specified period, including placement on the ``Excluded Parties Listing
Services'' maintained by the General Services Administration (GSA) at
http://www.epls.gov.
(2) In deciding what final actions are appropriate when misconduct
is found, USDOL officials should consider:
(a) How serious the misconduct was;
(b) The degree to which the misconduct was knowing, intentional, or
reckless;
(c) Whether it was an isolated event or part of a pattern;
(d) Whether it had a significant impact on the research record,
research subjects, other researchers, institutions or the public
welfare; and
(e) Other relevant circumstances.
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Appeals
(1) Any adverse action against a grantee or contractor arising from
research misconduct or otherwise is subject to applicable DOL
procedures, including any appeal/disputes procedures.
(2) The Secretary of Labor may wish to appoint an uninvolved USDOL
officer or employee to review an appeal and make recommendations. The
official deciding appeals should inform the appellant when a final
decision has been reached. It will normally be practicable to make an
appellate decision within 60 days after receiving the appeal.
Signed at Washington, DC, this 25th day of August 2003
Elaine L. Chao,
Secretary of Labor.
[FR Doc. 03-23248 Filed 9-11-03; 8:45 am]
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