Policy on Research Misconduct, 37010-37016 [05-12645]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 70, Number 123 (Tuesday, June 28, 2005)]
[Rules and Regulations]
[Pages 37010-37016]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-12645]


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DEPARTMENT OF ENERGY

10 CFR Parts 600 and 733

48 CFR Parts 935, 952 and 970

RIN 1901-AA89


Policy on Research Misconduct

AGENCY: Department of Energy.

ACTION: Notice of interim final rulemaking and opportunity for comment.

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SUMMARY: The Department of Energy (DOE) is publishing an interim final 
general statement of policy and interim final financial assistance and 
procurement requirements to implement the government-wide Federal 
Policy on Research Misconduct. These interim final rules are designed 
to protect the integrity of research and development funded by DOE.

DATES: The effective date is July 28, 2005. Written comments must be 
received on or before the close of business August 29, 2005.

ADDRESSES: Comments (5 copies) should be addressed to: Christine Chalk, 
SC-5, U.S. Department of Energy, Office of Science, Room 3H-051, 1000 
Independence Avenue, SW., Washington, DC 20585.

FOR FURTHER INFORMATION CONTACT: Christine Chalk at 202-586-7203 
(Christine.Chalk@science.doe.gov).

SUPPLEMENTARY INFORMATION:
I. Background.
II. Discussion of the General Statement of Policy and Standard 
Requirements.
III. Public Comment Procedures.
IV. Procedural Review Requirements.
    A. Review Under Executive Order 12866.
    B. Review Under Executive Order 12988.
    C. Review Under the Regulatory Flexibility Act.
    D. Review Under the Paperwork Reduction Act.
    E. Review Under the National Environmental Policy Act.
    F. Review Under Executive Order 13132.
    G. Review Under The Unfunded Mandates Reform Act of 1995.
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999.
    I. Review Under the Treasury And General Government 
Appropriations Act, 2001.
    J. Review Under the Small Business Regulatory Enforcement 
Fairness Act.

I. Background

    In 1996, the White House Office of Science and Technology Policy 
(OSTP) began the process of formulating a uniform government-wide 
Federal policy on research misconduct. OSTP published a proposed policy 
on research misconduct in the Federal Register at 64 FR 55722, October 
14, 1999, and published the final policy at 65 FR 76260, December 6, 
2000 (Federal Policy). The Federal Policy is available on the Office of 
Science Web site at https://www.sc.doe.gov/misconduct/finalpolicy.pdf.
    The objective of the Federal Policy is to create a uniform policy 
framework for Federal agencies for the handling of allegations of 
misconduct in federally funded or supported research. Within this 
framework, each Federal agency funding or supporting research is 
expected to fashion its own regulations to accommodate the various 
types of research transactions in which it is engaged. This rule 
implements the Federal Policy for DOE including the National Nuclear 
Security Administration. In keeping with these objectives, these DOE 
regulations incorporate key aspects of the Federal Policy. In 
particular, research misconduct is being defined as including 
fabrication, falsification, or plagiarism in proposing, performing, or 
reviewing research, or in reporting research results, but not as 
including honest error or differences of opinion. In addition, a 
finding of research

[[Page 37011]]

misconduct requires a determination, based on a preponderance of the 
evidence, that research misconduct has occurred, including a conclusion 
that there has been a significant departure from accepted practices of 
the relevant research community and that it be knowingly, 
intentionally, or recklessly committed.
    The core principle of the Federal Policy is that, while research 
organizations have the primary responsibility for the inquiry, 
investigation, and adjudication of allegations of research misconduct, 
Federal agencies have ultimate oversight authority for the research 
they fund or support. While there may be some overlap in the actions 
that may be pursued by Federal agencies and research organizations, DOE 
has designed this rule to assure that if an allegation of research 
misconduct is made against a contractor or recipient of financial 
assistance, either the contractor or recipient or, if appropriate, DOE, 
investigates that allegation. Federal law prescribes procedural 
frameworks for adverse contract actions, adverse assistance actions, 
suspensions, or debarments that are different from procedural 
frameworks for competing for Federal procurement or assistance awards, 
and for adverse personnel actions against Federal civil service 
employees. Further, the DOE Office of the Inspector General (OIG) may 
proceed under its previously existing administrative investigation 
process when misconduct is alleged against Federal civil service 
employees, contractors or recipients of financial assistance. In 
addition, if a contractor or financial assistance recipient cannot 
conduct its own research misconduct investigation the rule provides 
that DOE will be responsible for conducting the investigation.
    In order to best implement the Federal Policy, DOE promulgates a 
new 10 CFR part 733 (Allegations of Research Misconduct), which sets 
forth a general statement of policy applicable to research conducted 
under a DOE contract or financial assistance agreement. Consistent with 
the general statement of policy, DOE today amends 10 CFR part 600 
(Financial Assistance Rules), 48 CFR part 935 (Research and Development 
Contracting), 48 CFR part 952 (Solicitation Provisions and Contract 
Clauses), and 48 CFR part 970 (DOE Management and Operating Contracts). 
The Secretary of Energy has approved this notice for publication in the 
Federal Register. For all contracts, contracting officers must apply 
the DOE Acquisition Regulations (DEAR) changes (codified at 48 CFR) to 
solicitations issued on or after the effective date of this rule and 
may, at their discretion, include these DEAR changes in solicitations 
issued before the effective date of this rule, provided award of the 
resulting contract(s) occurs on or after the effective date.
    For management and operating contracts, contracting officers must 
apply these DEAR changes: to contracts extended in accordance with the 
Department's extend/compete policies and procedures (48 CFR 917.6, 48 
CFR 970.1706, and internal guidance); and to options exercised under 
competitively awarded management and operating contracts (48 CFR 
970.1706).
    For management and operating contracts, contracting officers should 
modify existing contracts at the next fee negotiation/annual renewal 
after the effective date of this rule.

II. Discussion of the General Statement of Policy and Standard 
Requirements

    Since research for DOE occurs pursuant to financial assistance 
agreements or contracts, the general statement of policy provides that 
DOE will implement the Federal Policy through the insertion in 
financial assistance agreements and contracts of standard requirements 
based on the Federal Policy. DOE expects that these standard 
requirements will result in most allegations of research misconduct 
being handled in accordance with the Federal Policy by the research 
institution where the research misconduct is alleged to have taken 
place.
    The general statement of policy also sets forth guidance to DOE 
offices with regard to the processing of allegations of research 
misconduct made directly to DOE. The guidance provides for initial 
handling of such allegations by the DOE office programmatically 
responsible for an assistance agreement or contract. That office in 
turn will consult with the DOE Office of the Inspector General (IG) to 
determine whether that office will choose to investigate the 
allegation. If the IG declines to investigate, the DOE program office 
will refer the allegation to the appropriate contracting officer 
responsible for the administration of the assistance agreement or 
contract for processing by the assistance recipient or contractor 
consistent with requirements of the applicable research misconduct 
requirements. If the Department elects to act in lieu of the contractor 
or financial assistance recipient, the research misconduct 
investigation shall be conducted by the DOE office programmatically 
responsible for the assistance agreement or contract with support from 
other departmental elements, as appropriate.
    DOE is amending the DEAR at 48 CFR part 935 to prescribe the 
inclusion of requirements on research misconduct in all DOE contracts 
that involve research. DOE also is amending part 952 of the DEAR and 10 
CFR part 600, respectively, to add requirements that by accepting the 
funds under a contract, including a management and operating contractor 
a financial assistance award, the recipient of DOE funds is making 
assurances that it has established an administrative process for 
reviewing, investigating, and reporting allegations of research 
misconduct and that it will comply with its own administrative process 
and the requirements of 10 CFR part 733 for review, investigation, and 
reporting of research misconduct. DOE also is amending part 970 of the 
DEAR to provide that records generated by a management and operating 
contractor during the course of responding to allegations of research 
misconduct will be considered owned by the contractor.
    As suggested in the Federal Policy, DOE expects debarment and 
suspension would be available as possible recommended remedies for a 
finding of research misconduct. These remedies would exclude a person 
or organization from participating in research activities funded by the 
Federal Government. DOE's non-procurement suspension and debarment rule 
is promulgated at 10 CFR part 606, while the Federal procurement 
suspension and debarment rule is promulgated at 48 CFR part 909. Both 
regulations require a fact-finding process if there are any facts in 
dispute prior to a suspension or debarment determination. The fact-
finding process used to make a determination of research misconduct 
under this rule would satisfy the requirements for a fact-finding 
hearing as adopted in the DOE's non-procurement debarment and 
suspension regulations, as well as the requirements for a fact-finding 
hearing as described in the FAR.

III. Public Comment Procedures

    Interested persons are invited to participate by submitting data, 
views or arguments with respect to the new regulation in this 
rulemaking. Five copies of written comments should be submitted to the 
address indicated in the ADDRESSES section of this notice of 
rulemaking. All comments received will be available for public 
inspection as part of the administrative record on file for this 
rulemaking in the Department of Energy Freedom of Information Reading 
Room, Room 1E-090, Forrestal Building, 1000 Independence Avenue, SW., 
Washington, DC 20585, (202) 586-

[[Page 37012]]

3142, between the hours of 9 a.m. and 4 p.m., Monday through Friday, 
except Federal holidays. All written comments received by the date 
indicated in the DATES section of this notice of rulemaking and all 
other relevant information in the record will be carefully assessed and 
fully considered prior to the publication of the final rule. Any 
information or data considered to be exempt from public disclosure by 
law must be so identified and submitted in writing, one copy, as well 
as one complete copy from which the information believed to be exempt 
from disclosure is deleted. DOE will determine if the information or 
data is exempt from disclosure.

IV. Procedural Review Requirements

A. Review Under Executive Order 12866

    This regulatory action has been determined to be a ``significant 
regulatory action'' under Executive Order 12866, ``Regulatory Planning 
and Review,'' (58 FR 51735, October 4, 1993). Accordingly, this action 
was subject to review under that Executive Order by the Office of 
Information and Regulatory Affairs of the Office of Management and 
Budget (OMB). OMB has completed its review.

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; (3) provide a clear legal standard 
for affected conduct rather than a general standard; and (4) promote 
simplification and burden reduction. The review required by section 
3(a), section 3(b) of Executive Order 12988 specifically requires that 
Executive agencies make every reasonable effort to ensure that the 
regulation: (1) Clearly specifies the preemptive effect, if any; (2) 
clearly specifies any effect on existing Federal law or regulation; (3) 
provides a clear legal standard for affected conduct while promoting 
simplification and burden reduction; (4) specifies the retroactive 
effect, if any; (5) adequately defines key terms; and (6) addresses 
other important issues affecting clarity and general draftsmanship 
under any guidelines issued by the Attorney General. Section 3(c) of 
Executive Order 12988 requires Executive agencies to review regulations 
in light of applicable standards in section 3(a) and section 3(b) to 
determine whether they are met or it is unreasonable to meet one or 
more of them. The Department has completed the required review and 
determined that, to the extent permitted by law, the regulations meet 
the relevant standards of Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires that 
a Federal agency prepare a regulatory flexibility analysis for any rule 
for which the agency is required to publish a general notice of 
rulemaking. Today's rule consists of a general statement of policy, 
amendments to financial assistance regulations, and amendments to 
procurement regulations. Each part of today's rule is exempt from the 
requirement to publish a general notice of proposed rulemaking under 
the Administrative Procedure Act (5 U.S.C. 553) or any other law. 
Therefore, the Regulatory Flexibility Act does not apply to this 
rulemaking.

D. Review Under the Paperwork Reduction Act

    No new information collection requirements subject to the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq., are imposed by today's 
regulatory action.

E. Review Under the National Environmental Policy Act

    The Department has concluded that promulgation of this rule falls 
into a class of actions which would not individually or cumulatively 
have significant impact on the human environment, as determined by 
Department of Energy regulations (10 CFR part 1021, subpart D) 
implementing the National Environmental Policy Act (NEPA) of 1969 (42 
U.S.C. 4321 et seq.). Specifically, this rule is categorically excluded 
from NEPA review because the rule and amendments to the Department of 
Energy Acquisition Regulation (DEAR) would be strictly procedural 
(categorical exclusion A6). Therefore, this rule does not require an 
environmental impact statement or environmental assessment pursuant to 
NEPA.

F. Review Under Executive Order 13132

    Executive Order 13132 (64 FR 43255, August 10, 1999) requires 
agencies to develop an accountable process to ensure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that have ``Federalism implications.'' As defined 
in the Executive Order, policies that have Federalism implications 
include regulations that have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. The Department has examined this rule and has 
determined that it would not have a substantial direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. No further action is required by 
Executive Order 13132.

G. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires a Federal agency to perform a detailed assessment of costs and 
benefits of any rule imposing a Federal Mandate with costs to State, 
local or tribal governments, or to the private sector, of $100 million 
or more. This rulemaking affects private sector entities, and the 
impact is less than $100 million.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule or policy that may affect 
family well-being. Today's rule does not impact on the autonomy or 
integrity of the family institution. Accordingly, the Department has 
concluded that it is not necessary to prepare a Family Policymaking 
Statement.

I. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516, note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to the general guideline issued by OMB. OMB's 
guidelines were published at 67 FR 8452 (February 22, 2002) and DOE's 
guidelines were published at 67 FR 62446 (October 7, 2002). DOE has 
reviewed today's rulemaking under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

[[Page 37013]]

J. Review Under the Small Business Regulatory Enforcement Fairness Act

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of today's interim final rule prior to its effective date. 
The report will state that the rule is not a major rule under 5 U.S.C. 
804(2).

List of Subjects

10 CFR Part 600

    Administrative practice and procedure.

10 CFR Part 733

    Investigations, Reporting and recordkeeping requirements, Research, 
Science and technology, Scientists.

48 CFR Parts 935, 952, and 970

    Government procurement.

    Issued in Washington, DC on June 20, 2005.
Raymond L. Orbach,
Director of Science.

0
For the reasons set out in the preamble, Chapters II and III of title 
10 and Chapter 9 of title 48 of the Code of Federal Regulations 
respectively, are to be amended as set forth below:

PART 600--FINANCIAL ASSISTANCE RULES

0
1. The authority citation for 10 CFR part 600 continues to read as 
follows:

    Authority: 42 U.S.C. 7101 et seq.; 31 U.S.C. 6301-6308; 50 
U.S.C. 2401 et seq., unless otherwise noted.


0
2. Add Sec.  600.31 to subpart A to read as follows:


Sec.  600.31  Research misconduct.

    (a) A recipient is responsible for maintaining the integrity of 
research of any kind under an award from DOE including the prevention, 
detection, and remediation of research misconduct, and the conduct of 
inquiries, investigations, and adjudication of allegations of research 
misconduct in accordance with the requirements of this section.
    (b) For purposes of this section, the following definitions are 
applicable:
    Adjudication means a formal review of a record of investigation of 
alleged research misconduct to determine whether and what corrective 
actions and sanctions should be taken.
    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 such that the 
research is not accurately represented in the research record.
    Finding of Research Misconduct means a determination, based on a 
preponderance of the evidence, that research misconduct has occurred. 
Such a finding requires a conclusion that there has been a significant 
departure from accepted practices of the relevant research community 
and that it be knowingly, intentionally, or recklessly committed.
    Inquiry means information gathering and initial fact-finding to 
determine whether an allegation or apparent instance of misconduct 
warrants an investigation.
    Investigation means the formal examination and evaluation of the 
relevant facts.
    Plagiarism means the appropriation of another person's ideas, 
processes, results, or words without giving appropriate credit.
    Research means all basic, applied, and demonstration research in 
all fields of science, medicine, engineering, and mathematics, 
including, but not limited to, research in economics, education, 
linguistics, medicine, psychology, social sciences statistics, and 
research involving human subjects or animals.
    Research misconduct means fabrication, falsification, or plagiarism 
in proposing, performing, or reviewing research, or in reporting 
research results, but does not include honest error or differences of 
opinion.
    Research record means the record of all data or results that embody 
the facts resulting from scientists' inquiries, including, but not 
limited to, research proposals, laboratory records, both physical and 
electronic, progress reports, abstracts, theses, oral presentations, 
internal reports, and journal articles.
    (c) Unless otherwise instructed by the contracting officer, the 
recipient must conduct an initial inquiry into any allegation of 
research misconduct. If the recipient determines that there is 
sufficient evidence to proceed to an investigation, it must notify the 
contracting officer and, unless otherwise instructed, the recipient 
must:
    (1) Conduct an investigation to develop a complete factual record 
and an examination of such record leading to either a finding of 
research misconduct and an identification of appropriate remedies or a 
determination that no further action is warranted;
    (2) Inform the contracting officer if an initial inquiry supports 
an investigation and, if requested by the contracting officer 
thereafter, keep the contracting officer informed of the results of the 
investigation and any subsequent adjudication. When an investigation is 
complete, the recipient will forward to the contracting officer a copy 
of the evidentiary record, the investigative report, any 
recommendations made to the recipient's adjudicating official, and the 
adjudicating official's decision and notification of any corrective 
action taken or planned, and the subject's written response to the 
recommendations (if any).
    (3) If the investigation leads to a finding of research misconduct, 
conduct an adjudication by a responsible official who was not involved 
in the inquiry or investigation and is separated organizationally from 
the element which conducted the investigation. The adjudication must 
include a review of the investigative record and, as warranted, a 
determination of appropriate corrective actions and sanctions.
    (d) The Department may elect to act in lieu of the recipient in 
conducting an inquiry or investigation into an allegation of research 
misconduct if the contracting officer finds that:
    (1) The research organization is not prepared to handle the 
allegation in a manner consistent with this section;
    (2) The allegation involves an entity of sufficiently small size 
that it cannot reasonably conduct the inquiry;
    (3) DOE involvement is necessary to ensure the public health, 
safety, and security, or to prevent harm to the public interest; or,
    (4) The allegation involves possible criminal misconduct.
    (e) DOE reserves the right to pursue such remedies and other 
actions as it deems appropriate, consistent with the terms and 
conditions of the award instrument and applicable laws and regulations. 
However, the recipient's good faith administration of this section and 
the effectiveness of its remedial actions and sanctions shall be 
positive considerations and shall be taken into account as mitigating 
factors in assessing the need for such actions. If DOE pursues any such 
action, it will inform the subject of the action of the outcome and any 
applicable appeal procedures.
    (f) In conducting the activities in paragraph (c) of this section, 
the recipient and the Department, if it elects to conduct the inquiry 
or investigation, shall adhere to the following guidelines:
    (1) Safeguards for information and subjects of allegations. The 
recipient shall provide safeguards to ensure that individuals may bring 
allegations of research misconduct made in good faith to the attention 
of the recipient without suffering retribution. Safeguards include: 
protection against retaliation; fair and objective procedures for 
examining and resolving allegations;

[[Page 37014]]

and diligence in protecting positions and reputations. The recipient 
shall also provide the subjects of allegations confidence that their 
rights are protected and that the mere filing of an allegation of 
research misconduct will not result in an adverse action. Safeguards 
include timely written notice regarding substantive allegations against 
them, a description of the allegation and reasonable access to any 
evidence submitted to support the allegation or developed in response 
to an allegation and notice of any findings of research misconduct.
    (2) Objectivity and expertise. The recipient shall select 
individual(s) to inquire, investigate, and adjudicate allegations of 
research misconduct who have appropriate expertise and have no 
unresolved conflict of interest. The individual(s) who conducts an 
adjudication must not be the same individual(s) who conducted the 
inquiry or investigation, and must be separate organizationally from 
the element that conducted the inquiry or investigation.
    (3) Timeliness. The recipient shall coordinate, inquire, 
investigate and adjudicate allegations of research misconduct promptly, 
but thoroughly. Generally, an investigation should be completed within 
120 days of initiation, and adjudication should be complete within 60 
days of receipt of the record of investigation.
    (4) Confidentiality. To the extent possible, consistent with fair 
and thorough processing of allegations of research misconduct and 
applicable law and regulation, knowledge about the identity of the 
subjects of allegations and informants should be limited to those with 
a need to know.
    (5) Remediation and sanction. If the recipient finds that research 
misconduct has occurred, it shall assess the seriousness of the 
misconduct and its impact on the research completed or in process. The 
recipient must take all necessary corrective actions. Such action may 
include but are not limited to, correcting the research record and as 
appropriate imposing restrictions, controls, or other parameters on 
research in process or to be conducted in the future. The recipient 
must coordinate remedial actions with the contracting officer. The 
recipient must also consider whether personnel sanctions are 
appropriate. Any such sanction must be consistent with any applicable 
personnel laws, policies, and procedures, and must take into account 
the seriousness of the misconduct and its impact, whether it was done 
knowingly or intentionally, and whether it was an isolated event or 
pattern of conduct.
    (g) By executing this agreement, the recipient provides its 
assurance that it has established an administrative process for 
performing an inquiry, mediating if possible, investigating, and 
reporting allegations of research misconduct; and that it will comply 
with its own administrative process and the requirements and 
definitions of 10 CFR part 733 for performing an inquiry, possible 
mediation, investigation and reporting of allegations of research 
misconduct.
    (h) The recipient must insert or have inserted the substance of 
this section, including paragraph (g), in subawards at all tiers that 
involve research.

PART 733--ALLEGATIONS OF RESEARCH MISCONDUCT

0
3. Part 733 is added to Chapter III of title 10 of the Code of Federal 
Regulations to read as follows:

PART 733--[ADDED]

Sec.
733.1 Purpose.
733.2 Scope.
733.3 Definitions.
733.4 Research misconduct requirements.
733.5 Allegations received by DOE.
733.6 Consultation with the DOE Office of the Inspector General.
733.7 Referral to the contracting officer.
733.8 Contracting officer procedures.

    Authority: 42 U.S.C. 2201; 7254; 7256; 7101 et seq.; 50 U.S.C. 
2401 et seq.


Sec.  733.1  Purpose.

    The purpose of this part is to set forth a general statement of 
policy on the treatment of allegations of research misconduct 
consistent with Federal Policy on Research Misconduct established by 
the White House Office of Science and Technology Policy on December 6, 
2000 (65 FR 76260-76264).


Sec.  733.2  Scope.

    This part applies to allegations of research misconduct with regard 
to scientific research conducted under a Department of Energy contract 
or an agreement.


Sec.  733.3  Definitions.

    The following terms used in this part are defined as follows:
    Contract means an agreement primarily for the acquisition of goods 
or services that is subject to the Federal Acquisition Regulations (48 
CFR Chapter 1) and the DOE Acquisition Regulations (48 CFR Chapter 9).
    DOE means the U.S. Department of Energy (including the National 
Nuclear Security Administration).
    DOE Element means a major division of DOE, usually headed by a 
Presidential appointee, which has a delegation of authority to carry 
out activities by entering into contracts or financial assistance 
agreements.
    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 such that the 
research is not accurately represented in the research record.
    Financial assistance agreement means an agreement the primary 
purpose of which is to provide appropriated funds to stimulate an 
activity, including but not limited to, grants and cooperative 
agreements pursuant to 10 CFR Part 600.
    Finding of research misconduct means a determination, based on a 
preponderance of the evidence, that research misconduct has occurred. 
Such a finding requires a conclusion that there has been a significant 
departure from accepted practices of the relevant research community 
and that it be knowingly, intentionally, or recklessly committed.
    Plagiarism means the appropriation of another person's ideas, 
processes, results, or words without giving appropriate credit.
    Research means all basic, applied, and demonstration research in 
all fields of science, engineering, and mathematics, such as research 
in economics, education, linguistics, medicine, psychology, social 
sciences, statistics, and research involving human subjects or animals.
    Research misconduct means fabrication, falsification, or plagiarism 
in proposing, performing, or reviewing research, or in reporting 
research results, but does not include honest error or differences of 
opinion.
    Research record means the record of all data or results that embody 
the facts resulting from scientists' inquiries, including, but not 
limited to, research proposals, laboratory records, both physical and 
electronic, progress reports, abstracts, theses, oral presentations, 
internal reports, and journal articles


Sec.  733.4  Research misconduct requirements.

    DOE intends to apply the research misconduct policy set forth in 65 
FR 76260-76264 by including appropriate research misconduct 
requirements in contracts and financial assistance awards that make 
contractors and financial recipients primarily responsible for 
implementing the policy in dealing with allegations of research

[[Page 37015]]

misconduct in connection with the proposal, performance or review of 
research for DOE .


Sec.  733.5  Allegations received by DOE.

    If DOE receives directly a written allegation of research 
misconduct with regard to research under a DOE contract or financial 
assistance agreement, DOE will refer the allegation for processing to 
the DOE Element responsible for the contract or financial assistance 
agreement.


Sec.  733.6  Consultation with the DOE Office of the Inspector General.

    Upon receipt of an allegation of research misconduct, the DOE 
Element shall consult with the DOE Office of the Inspector General 
which will determine whether that office will elect to investigate the 
allegation.


Sec.  733.7  Referral to the contracting officer.

    If the DOE Office of the Inspector General declines to investigate 
an allegation of research misconduct, the DOE Element should forward 
the allegation to the contracting officer responsible for 
administration of the contract or financial assistance agreement to 
which the allegation pertains.


Sec.  733.8  Contracting officer procedures.

    Upon receipt of an allegation of research misconduct by referral 
under Sec.  733.7, the contracting officer should, by notification of 
the contractor or financial assistance recipient:
    (a) Require the contractor or the financial assistance recipient to 
act on the allegation consistent with the Research Misconduct 
requirements in the contract or financial assistance award to which the 
allegation pertains; or
    (b) In the event the contractor or the financial assistance 
recipient is unable to act:
    (1) Designate an appropriate DOE program to conduct an 
investigation to develop a complete factual record and an examination 
of such record leading to either a finding of research misconduct and 
an identification of appropriate remedies or a determination that no 
further action is warranted; and
    (2) Make the appropriate findings consistent with the Research 
Misconduct requirements contained in the contract or financial 
assistance award, in order to act in lieu of the contractor or 
financial assistance recipient.

Title 48

PART 935--RESEARCH AND DEVELOPMENT CONTRACTING

0
4. The authority citation for 48 CFR part 935 continues to read as 
follows:

    Authority: 42 U.S.C. 7101 et seq.; 41 U.S.C. 418b; 50 U.S.C. 
2401 et seq.


0
5. Sections 935.070 and 935.071 are added to read as follows:


935.070  Research misconduct.

    (a) Applicability. The DOE research misconduct policy set forth at 
10 CFR part 733 addresses research misconduct by individuals who 
propose, perform or review research of any kind for the Department of 
Energy pursuant to a contract. The regulation applies regardless of 
where the research or other activity is conducted or by whom.
    (b) Definition. Research misconduct means fabrication, 
falsification, or plagiarism in proposing, performing, or reviewing 
research, or in reporting research results. Research misconduct does 
not include honest error or differences of opinion. A finding of 
research misconduct means a determination, based on a preponderance of 
the evidence, that research misconduct has occurred, including a 
conclusion that there has been a significant departure from accepted 
practices of the relevant research community and that it be knowingly, 
intentionally, or recklessly committed.


935.071  Contract clause.

    The contracting officer must insert the clause at 952.235-71, 
Research Misconduct, in contracts, including management and operating 
contracts, that involve research.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
6. The authority citation for part 952 continues to read as follows:

    Authority: 42 U.S.C. 2201, 2282a, 2282b, 2282c, 7101 et seq.; 41 
U.S.C. 418b; 50 U.S.C. 2401 et seq.

0
7. Section 952.235-71 is added to read as follows:


952.235-71  Research Misconduct.

    As prescribed in 48 CFR Part 935.071, insert the following clause:

Research Misconduct (JUL 2005)

    (a) The contractor is responsible for maintaining the integrity 
of research performed pursuant to this contract award including the 
prevention, detection, and remediation of research misconduct as 
defined by this clause, and the conduct of inquiries, 
investigations, and adjudication of allegations of research 
misconduct in accordance with the requirements of this clause.
    (b) Unless otherwise instructed by the contracting officer, the 
contractor must conduct an initial inquiry into any allegation of 
research misconduct. If the contractor determines that there is 
sufficient evidence to proceed to an investigation, it must notify 
the contracting officer and, unless otherwise instructed, the 
contractor must:
    (1) Conduct an investigation to develop a complete factual 
record and an examination of such record leading to either a finding 
of research misconduct and an identification of appropriate remedies 
or a determination that no further action is warranted;
    (2) If the investigation leads to a finding of research 
misconduct, conduct an adjudication by a responsible official who 
was not involved in the inquiry or investigation and is separated 
organizationally from the element which conducted the investigation. 
The adjudication must include a review of the investigative record 
and, as warranted, a determination of appropriate corrective actions 
and sanctions.
    (3) Inform the contracting officer if an initial inquiry 
supports a formal investigation and, if requested by the contracting 
officer thereafter, keep the contracting officer informed of the 
results of the investigation and any subsequent adjudication. When 
an investigation is complete, the contractor will forward to the 
contracting officer a copy of the evidentiary record, the 
investigative report, any recommendations made to the contractor's 
adjudicating official, the adjudicating official's decision and 
notification of any corrective action taken or planned, and the 
subject's written response (if any).
    (c) The Department may elect to act in lieu of the contractor in 
conducting an inquiry or investigation into an allegation of 
research misconduct if the contracting officer finds that:
    (1) The research organization is not prepared to handle the 
allegation in a manner consistent with this clause;
    (2) The allegation involves an entity of sufficiently small size 
that it cannot reasonably conduct the inquiry;
    (3) DOE involvement is necessary to ensure the public heath, 
safety, and security, or to prevent harm to the public interest; or,
    (4) The allegation involves possible criminal misconduct.
    (d) In conducting the activities under paragraphs (b) and (c) of 
this clause, the contractor and the Department, if it elects to 
conduct the inquiry or investigation, shall adhere to the following 
guidelines:
    (1) Safeguards for information and subjects of allegations. The 
contractor shall provide safeguards to ensure that individuals may 
bring allegations of research misconduct made in good faith to the 
attention of the contractor without suffering retribution. 
Safeguards include: protection against retaliation; fair and 
objective procedures for examining and resolving allegations; and 
diligence in protecting positions and reputations. The contractor 
shall also provide

[[Page 37016]]

the subjects of allegations confidence that their rights are 
protected and that the mere filing of an allegation of research 
misconduct will not result in an adverse action. Safeguards include 
timely written notice regarding substantive allegations against 
them, a description of the allegation and reasonable access to any 
evidence submitted to support the allegation or developed in 
response to an allegation and notice of any findings of research 
misconduct.
    (2) Objectivity and Expertise. The contractor shall select 
individual(s) to inquire, investigate, and adjudicate allegations of 
research misconduct who have appropriate expertise and have no 
unresolved conflict of interest. The individual(s) who conducts an 
adjudication must not be the same individual(s) who conducted the 
inquiry or investigation, and must be separate organizationally from 
the element that conducted the inquiry or investigation.
    (3) Timeliness. The contractor shall coordinate, inquire, 
investigate and adjudicate allegations of research misconduct 
promptly, but thoroughly. Generally, an investigation should be 
completed within 120 days of initiation, and adjudication should be 
complete within 60 days of receipt of the record of investigation.
    (4) Confidentiality. To the extent possible, consistent with 
fair and thorough processing of allegations of research misconduct 
and applicable law and regulation, knowledge about the identity of 
the subjects of allegations and informants should be limited to 
those with a need to know.
    (5) Remediation and Sanction. If the contractor finds that 
research misconduct has occurred, it shall assess the seriousness of 
the misconduct and its impact on the research completed or in 
process. The contractor must take all necessary corrective actions. 
Such action may include but are not limited to, correcting the 
research record and as appropriate imposing restrictions, controls, 
or other parameters on research in process or to be conducted in the 
future. The contractor must coordinate remedial actions with the 
contracting officer. The contractor must also consider whether 
personnel sanctions are appropriate. Any such sanction must be 
considered and effected consistent with any applicable personnel 
laws, policies, and procedures, and shall take into account the 
seriousness of the misconduct and its impact, whether it was done 
knowingly or intentionally, and whether it was an isolated event or 
pattern of conduct.
    (e) DOE reserves the right to pursue such remedies and other 
actions as it deems appropriate, consistent with the terms and 
conditions of the award instrument and applicable laws and 
regulations. However, the contractor's good faith administration of 
this clause and the effectiveness of its remedial actions and 
sanctions shall be positive considerations and shall be taken into 
account as mitigating factors in assessing the need for such 
actions. If DOE pursues any such action, it will inform the subject 
of the action of the outcome and any applicable appeal procedures.
    (f) Definitions.
    Adjudication means a formal review of a record of investigation 
of alleged research misconduct to determine whether and what 
corrective actions and sanctions should be taken.
    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 such that the 
research is not accurately represented in the research record.
    Finding of Research Misconduct means a determination, based on a 
preponderance of the evidence, that research misconduct has 
occurred. Such a finding requires a conclusion that there has been a 
significant departure from accepted practices of the relevant 
research community and that it be knowingly, intentionally, or 
recklessly committed.
    Inquiry means information gathering and initial fact-finding to 
determine whether an allegation or apparent instance of misconduct 
warrants an investigation.
    Investigation means the formal examination and evaluation of the 
relevant facts.
    Plagiarism means the appropriation of another person's ideas, 
processes, results, or words without giving appropriate credit.
    Research means all basic, applied, and demonstration research in 
all fields of science, medicine, engineering, and mathematics, 
including, but not limited to, research in economics, education, 
linguistics, medicine, psychology, social sciences statistics, and 
research involving human subjects or animals.
    Research Misconduct means fabrication, falsification, or 
plagiarism in proposing, performing, or reviewing research, or in 
reporting research results, but does not include honest error or 
differences of opinion.
    Research record means the record of all data or results that 
embody the facts resulting from scientists' inquiries, including, 
but not limited to, research proposals, laboratory records, both 
physical and electronic, progress reports, abstracts, theses, oral 
presentations, internal reports, and journal articles.
    (g) By executing this contract, the contractor provides its 
assurance that it has established an administrative process for 
performing an inquiry, mediating if possible, or investigating, and 
reporting allegations of research misconduct; and that it will 
comply with its own administrative process and the requirements of 
10 CFR part 733 for performing an inquiry, possible mediation, 
investigation and reporting of research misconduct.
    (h) The contractor must insert or have inserted the substance of 
this clause, including paragraph (g), in subcontracts at all tiers 
that involve research.

(End of Clause)

PART 970--MANAGEMENT AND OPERATING CONTRACTS

0
7. The authority citation for part 970 continues to read as follows:

    Authority: 42 U.S.C. 2201, 2282a, 2282b, 2282c; 42 U.S.C. 7101 
et seq.; 41 U.S.C. 418b; 50 U.S.C. 2401 et seq.


0
8. Section 970.5204-3 is amended by revising paragraph (b)(1) to read 
as follows:


970.5204-3  Access to and ownership of records.

* * * * *
    (b) * * *
    (1) Employment-related records (such as worker's compensation 
files; employee relations records, records on salary and employee 
benefits; drug testing records, labor negotiation records; records on 
ethics, employee concerns; records generated during the course of 
responding to allegations of research misconduct; records generated 
during other employee related investigations conducted under an 
expectation of confidentiality; employee assistance program records; 
and personnel and medical/health-related records and similar files), 
and non-employee patient medical/health-related records, except for 
those records described by the contract as being maintained in Privacy 
Act systems of records.
* * * * *

[FR Doc. 05-12645 Filed 6-27-05; 8:45 am]
BILLING CODE 6450-01-P