[Federal Register Volume 69, Number 240 (Wednesday, December 15, 2004)]
[Notices]
[Pages 75218-75222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27421]



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Part VI





Department of Labor





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Office of the Secretary



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Research Misconduct; Statement of Policy; Technical Correction; Notice

Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / 
Notices

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DEPARTMENT OF LABOR

Office of the Secretary


Research Misconduct; Statement of Policy; Technical Correction

AGENCY: Office of the Secretary, Labor.

ACTION: Statement of policy on research misconduct; technical 
correction.

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SUMMARY: On Friday, September 12, 2003 (Federal Register/Vol. 68, No. 
177) USDOL published its policies implementing the Federal Policy on 
Research Misconduct issued by the Executive Office of the President's 
Office of Science and Technology on December 6, 2000. Following public 
comment, and in order to eliminate a possible ambiguity in the USDOL 
policy statement, the USDOL hereby publishes this technical correction 
to its policy statement on research misconduct. Though this technical 
correction changes only two words in the September 12, 2003 USDOL 
policy statement on research misconduct, the USDOL is hereby publishing 
the entire USDOL Policy statement.

FOR FURTHER INFORMATION CONTACT: Ruth M. Samardick, Office of 
Programmatic Policy, Office of the Assistant Secretary for Policy, U.S. 
Department of Labor at 202-693-5075.

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, or 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 and 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

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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.

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

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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 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

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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 
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:

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    (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.

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 9th day of December 2004.
Elaine L. Chao,
Secretary of Labor.
[FR Doc. 04-27421 Filed 12-14-04; 8:45 am]
BILLING CODE 4510-23-P