Topic: New policy on research misconduct
Background: The Office of Science Technology and Policy has developed a new policy for research misconduct. It will apply to all research conducted by federal agencies and all federally-funded research. It is also likely to affect research funded from other, non-federal sources. OSTP solicited comments on this proposed policy. The deadline for comments was 13 December 1999.
FINAL RULE ANNOUNCED 6 December 2000; see FULL TEXT, below
Note from the Ornithological Council: OSTP chose to disregard virtually all of the very emphatic concerns raised by the Federation of American Societies of Experimental Biology, American Institute of Biological Sciences, and many others regarding procedural fairness.
The policy contains the following language pertaining to procedural fairness:
- Safeguards for Subjects of Allegations. Safeguards
for subjects give individuals the confidence that their rights are protected
and that the mere filing of an allegation of research misconduct against
them will not bring their research to a halt or be the basis for other
disciplinary or adverse action absent other compelling reasons. Other
safeguards include timely written notification of subjects regarding substantive
allegations made against them; a description of all such allegations; reasonable
access to the data and other evidence supporting the allegations; and the
opportunity to respond to allegations, the supporting evidence and the
proposed findings of research misconduct (if any).
- Objectivity and Expertise. The selection of
individuals to review allegations and conduct investigations who have appropriate
expertise and have no unresolved conflicts of interests help to ensure
fairness throughout all phases of the process.
- Timeliness. Reasonable time limits for
the conduct of the inquiry, investigation, adjudication, and appeal phases
(if any), with allowances for extensions where appropriate, provide confidence
that the process will be well managed.
- Confidentiality During the Inquiry, Investigation,
and Decision-Making Processes. To the extent possible consistent
with a fair and thorough investigation and as allowed by law, knowledge
about the identity of subjects and informants is limited to those who need
to know. Records maintained by the agency during the course of responding
to an allegation of research misconduct are exempt from disclosure under
the Freedom of Information Act to the extent permitted by law and regulation.
The procedural safeguards thus fall very short of what
the scientific organizations requested. There is no right to counsel, no
right to
confront and cross-examine witnesses, there is no "statute
of limitations," no bar against multiple proceedings, and lack of an outright
ban on contact with the media (with attendant sanctions for violation of
the ban). There are no sanctions for false allegations, no provision for
a true appellate procedure, and no provision for oversight by OSTP or any
other federal entity.
Agencies will have one year to implement this policy. The full text is below and together with explanatory material can also be found at http://www.ostp.gov/html/misconduct.html.
FEDERAL POLICY ON RESEARCH MISCONDUCT[1]
I.
Research[2] Misconduct Defined
Research misconduct is defined as fabrication, falsification,
or plagiarism in proposing, performing, or reviewing research, or in reporting
research results.
· Fabrication
is making up data or results and recording or reporting them.
· Falsification
is manipulating research materials, equipment, or processes, or changing
or omitting data or results such that the research is not accurately represented
in the research record.3
· Plagiarism
is the appropriation of another person’s ideas, processes, results, or
words without giving appropriate credit.
· Research
misconduct does not include honest error or differences of opinion.
II. Findings
of Research Misconduct
A finding of research misconduct requires that:
· There
be a significant departure from accepted practices of the relevant research
community; and
· The
misconduct be committed intentionally, or knowingly, or recklessly; and
· The
allegation be proven by a preponderance of evidence.
III. Responsibilities
of Federal Agencies and Research Institutions4
Agencies and research institutions are partners who share
responsibility for the research process. Federal agencies have ultimate
oversight authority for Federally funded research, but research institutions
bear primary responsibility for prevention and detection of research misconduct
and for the inquiry, investigation, and adjudication of research misconduct
alleged to have occurred in association with their own institution.
· Agency
Policies and Procedures. Agency policies and procedures with regard
to intramural as well as extramural programs must conform to the policy
described in this document.
· Agency
Referral to Research Institution. In most cases, agencies will rely
on the researcher’s home institution to make the initial response to allegations
of research misconduct. Agencies will usually refer allegations of
research misconduct made directly to them to the appropriate research institution.
However, at any time, the Federal agency may proceed with its own inquiry
or investigation. Circumstances in which agencies may elect not to
defer to the research institution include, but are not limited to, the
following: the agency determines the institution is not prepared to handle
the allegation in a manner consistent with this policy; agency involvement
is needed to protect the public interest, including public health and safety;
the allegation involves an entity of sufficiently small size
(or an individual) that it cannot reasonably conduct
the investigation itself.
· Multiple
Phases of the Response to an Allegation of Research Misconduct. A
response to an allegation of research misconduct will usually consist of
several phases, including: (1) an inquiry – the assessment of whether
the allegation has substance and if an investigation is warranted; (2)
an investigation – the formal development of a factual record, and the
examination of that record leading to dismissal of the case or to a recommendation
for a finding of research misconduct or other appropriate remedies; (3)
adjudication – during which recommendations are reviewed and appropriate
corrective actions determined.
· Agency
Follow-up to Institutional Action. After reviewing the record of
the investigation, the institution’s recommendations to the institution’s
adjudicating official, and any corrective actions taken by the research
institution, the agency will take additional oversight or investigative
steps if necessary. Upon completion of its review, the agency will
take appropriate administrative action in accordance with applicable laws,
regulations, or policies. When the agency has made a final determination,
it will notify the subject of the allegation of the outcome and inform
the institution regarding its disposition of the case. The agency
finding of research misconduct and agency administrative actions can be
appealed pursuant to the agency’s applicable procedures.
· Separation
of Phases. Adjudication is separated organizationally from inquiry
and investigation. Likewise, appeals are separated organizationally
from inquiry and investigation.
· Institutional
Notification of the Agency. Research institutions will 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 given above, and
(2) if the institution’s inquiry into the
allegation determines there is sufficient evidence to proceed to an investigation.
When an investigation is complete, the research institution will forward
to the agency a copy of the evidentiary record, the investigative report,
recommendations made to the institution’s adjudicating official, and the
subject’s written response to the recommendations (if any). When
a research institution completes the adjudication phase, it will forward
the adjudicating official’s decision and notify the agency of any corrective
actions taken or planned.
· Other
Reasons to Notify the Agency. At any time during an inquiry or investigation,
the institution will immediately notify the Federal agency if public health
or safety is at risk; if agency resources or interests are threatened;
if research activities should be suspended; if there is reasonable indication
of possible violations of civil or criminal law; if Federal action is required
to protect the interests of those involved in the investigation; if the
research institution believes the inquiry or investigation may be made
public prematurely so that appropriate steps can be taken to safeguard
evidence and protect the rights of those involved; or if the research community
or public should be informed.
· When
More Than One Agency is Involved. A lead agency should be designated
to coordinate responses to allegations of research misconduct when
more than one agency is involved in funding activities relevant to the
allegation. Each agency may implement administrative actions in accordance
with applicable laws, regulations, policies, or contractual procedures.
IV. Guidelines for
Fair and Timely Procedures
The following guidelines are provided to assist agencies
and research institutions in developing fair and timely procedures for
responding to allegations of research misconduct. They are designed
to provide safeguards for subjects of allegations as well as for informants.
Fair and timely procedures include the following:
· Safeguards
for Informants. Safeguards for informants give individuals the confidence
that they can bring allegations of research misconduct made in good faith
to the attention of appropriate authorities or serve as informants to an
inquiry or an investigation without suffering retribution. Safeguards
include protection against retaliation for informants who make good faith
allegations, fair and objective procedures for the examination and resolution
of allegations of research misconduct, and diligence in protecting the
positions and reputations of those persons who make allegations of research
misconduct in good faith.
· Safeguards
for Subjects of Allegations. Safeguards for subjects give individuals
the confidence that their rights are protected and that the mere filing
of an allegation of research misconduct against them will not bring their
research to a halt or be the basis for other disciplinary or adverse action
absent other compelling reasons. Other safeguards include timely
written notification of subjects regarding substantive allegations made
against them; a description of all such allegations; reasonable access
to the data and other evidence supporting the allegations; and the opportunity
to respond to allegations, the supporting evidence and the proposed findings
of research misconduct (if any).
· Objectivity
and Expertise. The selection of individuals to review allegations
and conduct investigations who have appropriate expertise and have no unresolved
conflicts of interests help to ensure fairness throughout all phases of
the process.
· Timeliness.
Reasonable time limits for the conduct of the inquiry, investigation, adjudication,
and appeal phases (if any), with allowances for extensions where appropriate,
provide confidence that the process will be well managed.
· Confidentiality
During the Inquiry, Investigation, and Decision-Making Processes.
To the extent possible consistent with a fair and thorough investigation
and as allowed by law, knowledge about the identity of subjects and informants
is limited to those who need to know. Records maintained by the agency
during the course of responding to an allegation of research misconduct
are exempt from disclosure under the Freedom of Information Act to the
extent permitted by law and regulation.
V. Agency Administrative
Actions
· Seriousness
of the Misconduct. In deciding what administrative actions are appropriate,
the agency should consider the seriousness of the misconduct, including,
but not limited to, the degree to which the misconduct was knowing, intentional,
or reckless; was an isolated event or part of a pattern; or had significant
impact on the research record, research subjects, other researchers, institutions,
or the public welfare.
· Possible
Administrative Actions. Administrative actions available include,
but are not limited to, appropriate steps to correct the research record;
letters of reprimand; the imposition of special certification or assurance
requirements to ensure compliance with applicable regulations or terms
of an award; suspension or termination of an active award; or suspension
and debarment in accordance with applicable government-wide rules on suspension
and debarment. In the event of suspension or debarment, the information
is made publicly available through the List of Parties Excluded from Federal
Procurement and Nonprocurement Programs maintained by the U.S. General
Services Administration. With respect to administrative actions imposed
upon government employees, the agencies must comply with all relevant federal
personnel policies and laws.
· In
Case of Criminal or Civil Fraud Violations. If the funding agency
believes that criminal or civil fraud violations may have occurred, the
agency shall promptly refer the matter to the Department of Justice, the
Inspector General for the agency, or other appropriate investigative body.
VI. Roles of Other
Organizations
This Federal policy does not limit the authority of research
institutions, or other entities, to promulgate additional research misconduct
policies or guidelines or more specific ethical guidance.
[1]No rights,
privileges, benefits or obligations are created or abridged by issuance
of this policy alone. The creation or abridgment of rights, privileges,
benefits or obligations, if any, shall occur only upon implementation of
this policy by the Federal agencies.
[2]Research,
as used herein, includes all basic, applied, and demonstration research
in all fields of science, engineering, and mathematics. This includes,
but is not limited to, research in economics, education, linguistics, medicine,
psychology, social sciences, statistics, and research involving human subjects
or animals.
[3]The research
record is the record of data or results that embody the facts resulting
from scientific inquiry, and includes, but is not limited to, research
proposals, laboratory records, both physical and electronic, progress reports,
abstracts, theses, oral presentations, internal reports, and journal articles.
[4]The term “research
institutions” is defined to include all organizations using Federal funds
for research, including, for example, colleges and universities, intramural
Federal research laboratories, Federally funded research and development
centers, national user facilities, industrial laboratories, or other research
institutes. Independent researchers and small research institutions are
covered by this policy.
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