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###### Department of Education

# AGENCY:

Department of Education. 

# ACTION:

Notice of policy on research misconduct. 

# SUMMARY:

The United States Department of Education (Department) announces the establishment of a policy regarding research misconduct (Department's Policy). The Department's Policy implements the Federal Policy on Research Misconduct (Federal Policy) issued by the Executive Office of the President's Office of Science and Technology Policy on December 6, 2000 (65 FR 76260). 

# EFFECTIVE DATE:

The Department's Policy is effective December 2, 2005. 

# FOR FURTHER INFORMATION CONTACT:

                        Brenda Wolff, U.S. Department of Education, 555 New Jersey Avenue, NW., room 508C, Washington, DC 20208-5643. Telephone: (202) 219-2067 or by e-mail:                         *Brenda.Wolff@ed.gov.*

If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339. 

                        Individuals with disabilities may obtain this document in an alternative format (                        *e.g.*, Braille, large print, audiotape, or computer diskette) on request to the contact person listed in this section.                     

# SUPPLEMENTARY INFORMATION: 

## Statement of Department of Education Policy Regarding Research Misconduct 

The Department recognizes the significant threat that research misconduct poses to the integrity, accuracy, and reliability of research funded by the Federal Government, including research funded by the Department. As an agency that provides funding for research, the Department is aware of the importance of establishing throughout the Government uniform policies and guidelines, to the extent practicable, as called for in the Federal Policy. 

The Federal Policy seeks to establish uniformity among Federal agencies in several key areas including the adoption of common definitions of research misconduct and related terms, as well as the establishment of uniform criteria for determining a finding of research misconduct (65 FR 76260, 76262, and 76263). In addition, the Federal Policy recommends that Federal agencies adhere to certain common policies and procedures in applying their respective research misconduct policies, including establishing guidelines to ensure fair and timely procedures for responding to allegations of research misconduct. The Federal Policy also provides guidance to assist Federal agencies in determining the appropriate sanctions for research misconduct. 

The Department has determined that the best method of fulfilling its obligation is to establish a policy that (1) adopts the Federal Policy and (2) within the framework of regulations governing research funded by the Department, applies the common definitions and criteria for responding to allegations of research misconduct. 

## Adoption of Common Definitions 

The Department adopts, and applies to research funded by it, the definition of research misconduct in the Federal Policy (65 FR 76260 and 76262). Accordingly, the Department applies the following definitions: 

*Research misconduct*                     means fabrication, falsification, or plagiarism in proposing, performing, or reviewing research or in reporting research results. However, the term does not include honest error or differences of opinion.                 

*Fabrication*                     means making up data or results and recording or reporting them.                 

*Falsification*                     means manipulating research materials, equipment, or processes, or changing or omitting data or results so that the research is not accurately represented in the research record.                 

*Plagiarism*                     means appropriating another person's ideas, processes, results, or words without giving proper credit.                 

                    Consistent with the Federal Policy, the definition of                     *research*                     for purposes of the Department's Policy includes all basic, applied, and demonstration research in all fields, as more fully described in the Federal Policy (65 FR 76260 and 76263). The definition of                     *research record*                     as used in the Department's Policy is identical to the definition used in the Federal Policy (65 FR 76260 and 76263).                 

## Adoption of Common Standards for the Purpose of Finding Research Misconduct 

As stated in the Federal Policy, the Department considers that research misconduct has occurred if (1) there is a significant departure from the accepted practices of the relevant research community; (2) the misconduct occurs as the result of an intentional act or a knowingly or recklessly committed act; and (3) the allegation is proven by a preponderance of evidence. 

## General Responsibilities of the Department and Research Institutions 

                    The Federal Policy describes, in general terms, the responsibilities that Federal agencies and research institutions share in responding to research misconduct. For purposes of the Department's Policy, the Department has adopted the Federal Policy's definition of                     *research institution*                     (65 FR 76260 and 76263). Thus, this term includes all organizations, regardless of size, using Department funds for research, including intramural research conducted for the Department by employees and contractors.                 

                    To the extent that the responsibilities of the Department and research                           ( print page 66372)                        institutions described in the Federal Policy are consistent with the Department's regulations and Federal law, the Department's Policy, elsewhere in this document, cites specific provisions that more fully describe the rights and responsibilities articulated in the Federal Policy. However, the Department's Policy is not controlling if it is inconsistent with Federal law, the Department's regulations, or the terms and conditions of any funding arrangement entered into by the Department.                 

A research institution that has internal policies and procedures for responding to allegations of research misconduct may continue to rely on those procedures if appropriate. The Department's Policy does not require a research institution that lacks these types of formal internal policies and procedures to establish them. However, the absence of an internal process does not lessen the importance of an institution's self-policing in the administration of research funded by the Department. Any research institution that wishes to establish formal internal policies and procedures should refer to the Federal Policy's guidance. 

The Federal Policy requires a research institution to notify the funding agency (or agencies in some cases) of an allegation of research misconduct if (1) the allegation involves Federally funded research (or an application for Federal funding) and meets the Federal definition of research misconduct, and (2) if the institution's inquiry into the allegation determines there is sufficient evidence to proceed to an investigation. The Federal Policy also obligates a research institution to immediately notify a Federal agency if public health or safety is at risk, if agency interests or resources are threatened, if research should be suspended, or if there is a reasonable indication of possible civil or criminal violations. Additionally, the Federal Policy requires a research institution to notify a Federal agency if Federal action is required to protect the interests of those involved in the investigation or in situations in which the premature release of information related to an investigation into research misconduct requires possible Federal intervention to safeguard evidence and protect the rights of those involved (65 FR 76260 and 76263). The Department adopts the Federal Policy with regard to obligatory notification by research institutions and applies the Federal Policy to research institutions receiving funding from the Department. 

The Department's oversight responsibilities typically reside in the Principal Office (PO) responsible for making a research grant or awarding a research contract. Additional oversight responsibility lies with the Department's Office of Inspector General (OIG). 

                    OIG has independent authority to investigate a research institution's use of Department funds, as well as to conduct investigations related to waste, fraud, and abuse in programs funded by the Department. Anyone wishing to report alleged research misconduct may use the same hotline established by OIG for persons wishing to provide information concerning waste, fraud, and abuse. The telephone number for this hotline is 1-800-MIS-USED; the e-mail address is                     *oig.hotline@ed.gov.*                     An individual making a report may choose to remain anonymous.                 

## General Guidelines for Establishing Fair and Timely Procedures 

The Federal Policy provides general guidance to assist research institutions in developing fair and timely procedures for responding to allegations of research misconduct (65 FR 76260 and 76263). The guidelines are designed to provide safeguards for informants, as well as for persons alleged to have committed research misconduct. The guidelines address the importance of objectivity and expertise among those within a research institution tasked with reviewing allegations of misconduct. 

## Department Regulations Governing Research Misconduct 

It is the Department's Policy to pursue vigorously all allegations of misconduct involving research funded by the Department. While it is beyond the scope of the Department's Policy to reference every Federal statute and regulation that could conceivably be used by the Department or another agency of the Government in responding to allegations of research misconduct, reference is made in the following sections of this notice to several specific regulations applicable to research misconduct. Research institutions that receive Department funds through grants or contracts are also subject to the specific provisions of the grant arrangement or contract, as applicable. 

                    1.                     *Grants and Cooperative Agreements.*                     A research institution that receives a grant or cooperative agreement from the Department to conduct research is subject to the provisions of the Education Department General Administrative Regulations (EDGAR). See generally 34 CFR parts 74, 75, 77, 80, 81, 82, 84, 85, 86, 97, 98 and 99.                 

These regulations describe various remedies available to the Department, including the temporary withholding of cash payments, the disallowance of costs, and suspension or termination of the award (see 34 CFR part 74, subpart C, and part 75, subpart G). EDGAR also includes provisions related to hearings and appeals. 

The Department may also initiate a suspension or debarment action against a research institution, notwithstanding the imposition of any other enforcement action. The regulations governing suspensions and debarments for non-procurement matters, including rights of hearing and appeal, are in 34 CFR part 85. Specifically, under 34 CFR 85.305, the commission of fraud, forgery, or falsification is grounds for suspension or debarment. 

                    2.                     *Contracts.*                     A research institution that enters into a contract with the Department is subject to the provisions of the Federal Acquisition Regulations (FAR). See generally 48 CFR parts 3400 through 3499. General provisions available to the Department to address instances of research misconduct under contracts are in 48 CFR part 52. Additionally with regard to contracts, the Department may initiate a debarment or suspension action under 48 CFR 9.406 and 9.407.                 

## Research Misconduct Involving Department Employees 

The Department's Policy applies to employees of the Department, each of whom is subject to standards of conduct that apply to research conducted within the Department. Federal regulations require an employee to (1) put forth an honest effort in his or her work; and (2) protect and conserve Federal property and only use that property in authorized ways (5 CFR 2635.101(b)(5) and (6)). Additionally, an employee must disclose instances of fraud, waste, abuse, and corruption (5 CFR 2635.101(b)(11)). 

                    As indicated in the Department's Personnel Manual Instruction (PMI), possible sanctions for employee misconduct in research may include suspension or termination from Federal employment (PMI 751-1, Table of Penalties, item 24). An employee's supervisor has initial responsibility for responding to employee research misconduct. To assist supervisors in administering an appropriate remedy, the Merit Systems Protection Board has established 12 criteria, commonly referred to as the “Douglas Factors,” used in determining the appropriate penalty. See                     *Douglas*                     v.                     *Veterans Administration*, 5 Merit Systems Protection Board 313 (1981).                           ( print page 66373)    

An employee who faces disciplinary proceedings has available a number of established procedures providing for the employee's rights to appeal or otherwise challenge a disciplinary matter. These may include rights under the Merit Systems Protection Board regulations, Equal Employment Opportunity Commission (EEOC) regulations, and grievance procedures. 

## Additional Considerations 

The authority and responsibility for responding to allegations and instances of research misconduct in the Department's programs are shared among a wide variety of offices within the Department. The procedures described in this notice for investigating, adjudicating, and punishing instances of research misconduct are general in nature. Therefore, it is the Department's Policy to pursue not only the remedies described in this notice, but, also all legal remedies available to the Department and other Federal agencies in responding to instances of research misconduct. 

Thus, while the Department's Policy is intended to comply with the Federal Policy, it is not intended to create, waive, amend, or otherwise abrogate any statutory or regulatory right that may otherwise exist or come into existence concerning the subject of research misconduct. 

## Electronic Access to This Document 

                    You may view this document, as well as all other Department of Education documents published in the                     **Federal Register**                    , in text or Adobe Portable Document Format (PDF) on the Internet at the following site:                     *http://www.ed.gov/​news/​fedregister.*

To use PDF, you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530. 

# Note:

                        The official version of this document is published in the                         **Federal Register**                        . Free Internet access to the official edition of the                         **Federal Register**                         and the Code of Federal Regulations is available on GPO Access at:                         *http://www.gpoaccess.gov/​nara/​index.html.*

(Catalog of Federal Domestic Assistance Number does not apply.) 

Dated: October 27, 2005. 

Margaret Spellings, 

Secretary of Education. 

[FR Doc. 05-21874 Filed 11-1-05; 8:45 am] 

BILLING CODE 4000-01-U