[Federal Register Volume 67, Number 52 (Monday, March 18, 2002)]
[Rules and Regulations]
[Pages 11936-11939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6179]


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NATIONAL SCIENCE FOUNDATION

45 CFR Part 689

RIN 3145-AA39


Research Misconduct

AGENCY: National Science Foundation (NSF).

ACTION: Final rule.

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SUMMARY: NSF is issuing a final rule that revises its existing 
misconduct in science and engineering regulations. These revisions 
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. They will enable NSF to continue to address 
allegations of research misconduct.

DATES: This rule is effective April 17, 2002.

FOR FURTHER INFORMATION CONTACT: Anita Eisenstadt, Office of the 
General Counsel, at 703-292-8060.

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 policy directs 
Federal agencies that support or conduct research to implement it 
within one year.
    On January 25, 2002, NSF published a proposed rule to revise its 
existing misconduct regulations (45 CFR part 689) to make them fully 
consistent with the Federal policy. (67 FR 3666-3669). NSF invited 
public comment on the proposed rule. NSF received four comments that 
were supportive of the proposed rule.
    Three of these commenters, however, expressed general concern for 
the protection of confidentiality of inquiries and investigations of 
alleged research misconduct. They suggested that NSF add language to 
the regulation that provides that to the extent permitted by law, NSF 
will protect research misconduct investigative and adjudicative files 
as exempt from mandatory disclosure under the Freedom of Information 
Act and the Privacy Act. The commenters noted that this language is 
consistent with the Federal policy.
    NSF stated in the preamble to the proposed rule that, consistent 
with the Federal policy, we would continue to protect research 
misconduct investigative and adjudicative files as exempt from 
mandatory disclosure under the Freedom of Information Act and the 
Privacy Act, to the extent permitted by law. (67 FR 3666). In response 
to these comments, we will include this language in Sec. 689.2 of the 
final rule.
    One of the commenters also expressed concern over the preponderance 
of evidence standard of proof for a finding of research misconduct. The 
commenter expressed concern that this standard will increase the risk 
of a false finding of research misconduct, and recommended a higher 
standard of proof such as ``clear and convincing evidence'' or ``beyond 
a reasonable doubt.''
    The Federal policy adopted the preponderance of evidence standard. 
In the preamble to the Federal policy, OSTP noted that this is the 
uniform standard of proof for most civil fraud cases and most Federal 
administrative proceedings, including debarment. (65 FR 76262). Awardee 
institutions have the discretion to apply a higher standard of proof in 
their internal misconduct proceedings. However, if a higher standard is 
used, and the awardee institution wishes for NSF to defer to its 
investigation, the awardee institution should also evaluate whether the 
allegation is proven by a preponderance of evidence.

Determinations

    The Office of Management and Budget has reviewed this final rule 
under Executive Order 12866. The rule is not an economically 
significant rule or a major rule under the Congressional Review Act. 
The Congressional Review Act provides that agencies shall submit a 
report, including a copy of all final rules, to each House of Congress 
and the Comptroller General of the United States. The Foundation will 
submit this report, identifying this rule as non-major, prior to the 
publication of this rule in the Federal Register.
    The Unfunded Mandate Reform Act of 1995, in sections 202 and 205, 
requires that agencies prepare several analytic statements before 
proposing a rule that

[[Page 11937]]

may result in annual expenditures of $100 million by State, local and 
Indian tribal governments, or by the private sector. As any final rule 
would not result in expenditures of this magnitude, such statements are 
not necessary. As required by the Regulatory Flexibility Act, it is 
hereby certified that this rule will not have a significant impact on a 
substantial number of small businesses.
    The provisions of the Paperwork Reduction Act of 1995, Public Law 
104-13, 44 U.S.C. 3501 et seq., and its implementing regulations, 5 CFR 
Part 1320, do not apply to this rule because there are no new or 
revised recordkeeping or reporting requirements. Finally, NSF has 
reviewed this rule in light of Section 2 of Executive Order 12778 and 
certifies that this rule meets the applicable standards provided in 
sections 2(a) and 2(b) of that order.

List of Subjects in 45 CFR Part 689

    Administrative practice and procedure, Fraud, Grant programs-
science and technology, Investigations, Research, Science and 
technology.

    Dated: March 7, 2002.
Lawrence Rudolph,
General Counsel, National Science Foundation.

    For the reasons set forth in the preamble, the National Science 
Foundation is revising part 689 of Title 45, Chapter VI of the Code of 
Federal Regulations, to read as follows:

PART 689--RESEARCH MISCONDUCT

Sec.
689.1  Definitions.
689.2  General policies and responsibilities.
689.3  Actions.
689.4  Role of awardee institutions.
689.5  Initial NSF handling of misconduct matters.
689.6  Investigations.
689.7  Pending proposals and awards.
689.8  Interim administrative actions.
689.9  Dispositions.
689.10  Appeals.

    Authority: 42 U.S.C. 1870(a).


Sec. 689.1  Definitions.

    The following definitions apply to this part:
    (a) Research misconduct means fabrication, falsification, or 
plagiarism in proposing or performing research funded by NSF, reviewing 
research proposals submitted to NSF, or in reporting research results 
funded by NSF.
    (1) Fabrication means making up data or results and recording or 
reporting them.
    (2) Falsification means manipulating research materials, equipment, 
or processes, or changing or omitting data or results such that the 
research is not accurately represented in the research record.
    (3) Plagiarism means the appropriation of another person's ideas, 
processes, results or words without giving appropriate credit.
    (4) Research, for purposes of paragraph (a) of this section, 
includes proposals submitted to NSF in all fields of science, 
engineering, mathematics, and education and results from such 
proposals.
    (b) Research misconduct does not include honest error or 
differences of opinion.


Sec. 689.2  General policies and responsibilities.

    (a) NSF will take appropriate action against individuals or 
institutions upon a finding that research misconduct has occurred. 
Possible actions are described in Sec. 689.3. NSF may also take interim 
action during an investigation, as described in Sec. 689.8.
    (b) NSF will find research misconduct only after careful inquiry 
and investigation by an awardee institution, by another Federal agency, 
or by NSF. 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 must 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.
    (c) A finding of research misconduct requires that--
    (1) There be a significant departure from accepted practices of the 
relevant research community; and
    (2) The research misconduct be committed intentionally, or 
knowingly, or recklessly; and
    (3) The allegation be proven by a preponderance of evidence.
    (d) Before NSF makes any final finding of research misconduct or 
takes any final action on such a finding, NSF will normally afford the 
accused individual or institution notice, a chance to provide comments 
and rebuttal, and a chance to appeal. In structuring procedures in 
individual cases, NSF may take into account procedures already followed 
by other entities investigating or adjudicating the same allegation of 
research misconduct.
    (e) Debarment or suspension for research misconduct will be imposed 
only after further procedures described in applicable debarment and 
suspension regulations, as described in Secs. 689.8 and 689.9, 
respectively. Severe research misconduct, as established under the 
regulations in this part, is an independent cause for debarment or 
suspension under the procedures established by the debarment and 
suspension regulations.
    (f) The Office of Inspector General (OIG) oversees investigations 
of research misconduct and conducts any NSF inquiries and 
investigations into suspected or alleged research misconduct.
    (g) The Deputy Director adjudicates research misconduct proceedings 
and the Director decides appeals.
    (h) Investigative and adjudicative research misconduct records 
maintained by the agency are exempt from public disclosure under the 
Freedom of Information Act (5 U.S.C. 552) and the Privacy Act (5 U.S.C. 
552a) to the extent permitted by law and regulation.


Sec. 689.3  Actions.

    (a) Possible final actions listed in this paragraph (a) for 
guidance range from minimal restrictions (Group I) to the most severe 
and restrictive (Group III). They are not exhaustive and do not include 
possible criminal sanctions.
    (1) Group I actions. (i) Send a letter of reprimand to the 
individual or institution.
    (ii) Require as a condition of an award that for a specified period 
an individual or institution obtain special prior approval of 
particular activities from NSF.
    (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.
    (2) Group II actions. (i) Totally or partially suspend an active 
award, or restrict for a specified period designated activities or 
expenditures under an active award.
    (ii) Require for a specified period special reviews of all requests 
for funding from an affected individual or institution to ensure that 
steps have been taken to prevent repetition of the misconduct.
    (iii) Require a correction to the research record.

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    (3) Group III actions. (i) Terminate an active award.
    (ii) Prohibit participation of an individual as an NSF reviewer, 
advisor, or consultant for a specified period.
    (iii) Debar or suspend an individual or institution from 
participation in Federal programs for a specified period after further 
proceedings under applicable regulations.
    (b) In deciding what final actions are appropriate when misconduct 
is found, NSF officials should consider:
    (1) How serious the misconduct was;
    (2) The degree to which the misconduct was knowing, intentional, or 
reckless;
    (3) Whether it was an isolated event or part of a pattern;
    (4) Whether it had a significant impact on the research record, 
research subjects, other researchers, institutions or the public 
welfare; and
    (5) Other relevant circumstances.
    (c) Interim actions may include, but are not limited to:
    (1) Totally or partially suspending an existing award;
    (2) Suspending eligibility for Federal awards in accordance with 
debarment-and-suspension regulations;
    (3) Proscribing or restricting particular research activities, as, 
for example, to protect human or animal subjects;
    (4) Requiring special certifications, assurances, or other, 
administrative arrangements to ensure compliance with applicable 
regulations or terms of the award;
    (5) Requiring more prior approvals by NSF;
    (6) Deferring funding action on continuing grant increments;
    (7) Deferring a pending award;
    (8) Restricting or suspending participation as an NSF reviewer, 
advisor, or consultant.
    (d) For those cases governed by the debarment and suspension 
regulations, the standards of proof contained in the debarment and 
suspension regulations shall control. Otherwise, NSF will take no final 
action under this section without a finding of misconduct supported by 
a preponderance of the relevant evidence.


Sec. 689.4  Role of awardee institutions.

    (a) Awardee institutions bear primary responsibility for prevention 
and detection of research misconduct and for the inquiry, 
investigation, and adjudication of alleged research misconduct. In most 
instances, NSF will rely on awardee institutions to promptly:
    (1) Initiate an inquiry into any suspected or alleged research 
misconduct;
    (2) Conduct a subsequent investigation, if warranted;
    (3) 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
    (4) Provide appropriate safeguards for subjects of allegations as 
well as informants.
    (b) If an institution wishes NSF to defer independent inquiry or 
investigation, it should:
    (1) Complete any inquiry and decide whether an investigation is 
warranted within 90 days. If completion of an inquiry is delayed, but 
the institution wishes NSF deferral to continue, NSF may require 
submission of periodic status reports.
    (2) Inform OIG immediately if an initial inquiry supports a formal 
investigation.
    (3) Keep OIG informed during such an investigation.
    (4) Complete any investigation and reach a disposition within 180 
days. If completion of an investigation is delayed, but the institution 
wishes NSF deferral to continue, NSF may require submission of periodic 
status reports.
    (5) Provide OIG with the final report from any investigation.
    (c) NSF expects institutions to promptly notify OIG should the 
institution become aware during an inquiry or investigation that:
    (1) Public health or safety is at risk;
    (2) NSF's resources, reputation, or other interests need 
protecting;
    (3) There is reasonable indication of possible violations of civil 
or criminal law;
    (4) Research activities should be suspended;
    (5) Federal action may be needed to protect the interests of a 
subject of the investigation or of others potentially affected; or
    (6) The scientific community or the public should be informed.
    (d) Awardee institutions should maintain and effectively 
communicate to their staffs appropriate policies and procedures 
relating to research misconduct, which should indicate when NSF should 
be notified.


Sec. 689.5  Initial NSF handling of misconduct matters.

    (a) NSF staff who learn of alleged misconduct will promptly and 
discreetly inform OIG or refer informants to OIG.
    (b) The identity of informants who wish to remain anonymous will be 
kept confidential to the extent permitted by law or regulation.
    (c) If OIG determines that alleged research misconduct involves 
potential civil or criminal violations, OIG may refer the matter to the 
Department of Justice.
    (d) Otherwise OIG may:
    (1) Inform the awardee institution of the alleged research 
misconduct and encourage it to undertake an inquiry;
    (2) Defer to inquiries or investigations of the awardee institution 
or of another Federal agency; or
    (3) At any time proceed with its own inquiry.
    (e) If OIG proceeds with its own inquiry it will normally complete 
the inquiry no more than 90 days after initiating it.
    (f) On the basis of what it learns from an inquiry and in 
consultation as appropriate with other NSF offices, OIG will decide 
whether a formal NSF investigation is warranted.


Sec. 689.6  Investigations.

    (a) When an awardee institution or another Federal agency has 
promptly initiated its own investigation, OIG may defer an NSF inquiry 
or investigation until it receives the results of that external 
investigation. If it does not receive the results within 180 days, OIG 
may proceed with its own investigation.
    (b) If OIG decides to initiate an NSF investigation, it must give 
prompt written notice to the individual or institutions to be 
investigated, unless notice would prejudice the investigation or unless 
a criminal investigation is underway or under active consideration. If 
notice is delayed, it must be given as soon as it will no longer 
prejudice the investigation or contravene requirements of law or 
Federal law-enforcement policies.
    (c) 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 or the NSF, OIG will 
determine what information, if any, may be disclosed to the subject of 
the investigation or to other NSF employees.
    (d) An NSF investigation may include:
    (1) Review of award files, reports, and other documents already 
readily available at NSF or in the public domain;
    (2) Review of procedures or methods and inspection of laboratory 
materials, specimens, and records at awardee institutions;
    (3) Interviews with subjects or witnesses;
    (4) Review of any documents or other evidence provided by or 
properly obtainable from parties, witnesses, or other sources;
    (5) Cooperation with other Federal agencies; and

[[Page 11939]]

    (6) Opportunity for the subject of the investigation to be heard.
    (e) OIG may invite outside consultants or experts to participate in 
an NSF investigation. They should be appointed in a manner that ensures 
the official nature of their involvement and provides them with legal 
protections available to federal employees.
    (f) OIG will make every reasonable effort to complete an NSF 
investigation and to report its recommendations, if any, to the Deputy 
Director within 180 days after initiating it.


Sec. 689.7  Pending proposals and awards.

    (a) Upon learning of alleged research misconduct OIG will identify 
potentially implicated awards or proposals and when appropriate, will 
ensure that program, grant, and contracting officers handling them are 
informed (subject to Sec. 689.6(c)).
    (b) Neither a suspicion or allegation of research misconduct nor a 
pending inquiry or investigation will normally delay review of 
proposals. To avoid influencing reviews, reviewers or panelists will 
not be informed of allegations or of ongoing inquiries or 
investigations. However, if allegations, inquiries, or investigations 
have been rumored or publicized, the responsible Program Director may 
consult with OIG and, after further consultation with the Office of 
General Counsel, either defer review, inform reviewers to disregard the 
matter, or inform reviewers of the status of the matter.


Sec. 689.8  Interim administrative actions.

    (a) After an inquiry or during an external or NSF investigation the 
Deputy Director may order that interim actions (as described in 
Sec. 689.3(c)) be taken to protect Federal resources or to guard 
against continuation of any suspected or alleged research misconduct. 
Such an order will normally be issued on recommendation from OIG and in 
consultation with the Division of Contracts, Policy, and Oversight or 
Division of Grants and Agreements, the Office of the General Counsel, 
the responsible Directorate, and other parts of the Foundation as 
appropriate.
    (b) When suspension is determined to be appropriate, the case will 
be referred to the suspending official pursuant to 45 CFR part 620, and 
the suspension procedures of 45 CFR part 620 will be followed, but the 
suspending official will be either the Deputy Director or an official 
designated by the Deputy Director.
    (c) Such interim actions may be taken whenever information 
developed during an investigation indicates a need to do so. Any 
interim action will be reviewed periodically during an investigation by 
NSF and modified as warranted. An interested party may request a review 
or modification by the Deputy Director of any interim action.
    (d) The Deputy Director will make and OIG will retain a record of 
interim actions taken and the reasons for taking them.
    (e) Interim administrative actions are not final agency actions 
subject to appeal.


Sec. 689.9  Dispositions.

    (a) After receiving a report from an external investigation by an 
awardee institution or another Federal agency, OIG will assess the 
accuracy and completeness of the report and whether the investigating 
entity followed reasonable procedures. It will either recommend 
adoption of the findings in whole or in part or, normally within 30 
days, initiate a new investigation.
    (b) When any satisfactory external investigation or an NSF 
investigation fails to confirm alleged misconduct--
    (1) OIG will notify the subject of the investigation and, if 
appropriate, those who reported the suspected or alleged misconduct. 
This notification may include the investigation report.
    (2) Any interim administrative restrictions that were imposed will 
be lifted.
    (c) When any satisfactory investigation confirms misconduct--
    (1) In cases in which debarment is considered by OIG to be an 
appropriate disposition, the case will be referred to the debarring 
official pursuant to 45 CFR part 620 and the procedures of 45 CFR part 
620 will be followed, but:
    (i) The debarring official will be either the Deputy Director, or 
an official designated by the Deputy Director.
    (ii) Except in unusual circumstances, the investigation report and 
recommended disposition will be included among the materials provided 
to the subject of the investigation as part of the notice of proposed 
debarment.
    (iii) The notice of the debarring official's decision will include 
instructions on how to pursue an appeal to the Director.
    (2) In all other cases--
    (i) Except in unusual circumstances, the investigation report will 
be provided by OIG to the subject of the investigation, who will be 
invited to submit comments or rebuttal. Comments or rebuttal submitted 
within the period allowed, normally 30 days, will receive full 
consideration and may lead to revision of the report or of a 
recommended disposition.
    (ii) Normally within 45 days after completing an NSF investigation 
or receiving the report from a satisfactory external investigation, OIG 
will submit to the Deputy Director the investigation report, any 
comments or rebuttal from the subject of the investigation, and a 
recommended disposition. The recommended disposition will propose any 
final actions to be taken by NSF. Section 689.3 lists possible final 
actions and considerations to be used in determining them.
    (iii) The Deputy Director will review the investigation report and 
OIG's recommended disposition. Before issuing a disposition the Deputy 
Director may initiate further hearings or investigation. Normally 
within 120 days after receiving OIG's recommendations or after 
completion of any further proceedings, the Deputy Director will send 
the affected individual or institution a written disposition, 
specifying actions to be taken. The decision will include instructions 
on how to pursue an appeal to the Director.


Sec. 689.10  Appeals.

    (a) An affected individual or institution may appeal to the 
Director in writing within 30 days after receiving the Deputy 
Director's written decision. The Deputy Director's decision becomes a 
final administrative action if it is not appealed within the 30 day 
period.
    (b) The Director may appoint an uninvolved NSF officer or employee 
to review an appeal and make recommendations.
    (c) The Director will normally inform the appellant of a final 
decision within 60 days after receiving the appeal. That decision will 
be the final administrative action of the Foundation

.[FR Doc. 02-6179 Filed 3-15-02; 8:45 am]
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