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will be asked to name a substitute ne requirements for protection of regotiator for the same purpose before searchers, human subjects, or the the appointment becomes official. public or for ensuring the welfare of

(b) Scientific and technical informa laboratory animals; or (3) failure to tion. You may respond to requests meet other material legal requirefrom a program officer or another ments governing research. NSF official for scientific and techni. (b) The NSF will take appropriate cal information relating to an award action against individuals or instituor proposal, such as might be needed tions upon a determination that misto respond to reviewer comments. You conduct has occurred under an NSF must not, however, couple the infor award. It may also take interim action mation you supply with any attempt during an investigation. Possible acto influence action on the proposal tions are described in $ 689.2. other than what inheres in the provi (c) NSF will find misconduct only sion of the information itself. (If possi after careful inquiry and investigation ble, have someone else respond.)

by an awardee institution, by another (c) Compensation; reimbursement of Federal agency, or by NSF. An "inexpenses. No NSF award made while quiry” consists of information-gatheryou are a member of the Board may ing and preliminary fact-finding to debe charged for any compensation paid termine whether an allegation or apto you. An award may be charged, parent instance of misconduct warhowever, for actual expenses you incur rants an investigation. An “investigain doing work supported by the award. tion" is a formal examination and If you are already an investigator or evaluation of relevant facts to deterconsultant under an NSF award when mine whether misconduct has taken you became a Board member, the place or, if misconduct has already award may be charged for compensa been confirmed, to assess its extent tion to you to the extent established and consequences or determine approbefore your nomination.

priate NSF action.

(d) Before NSF makes any final find(48 FR 52732, Nov. 22, 1983)

ing of misconduct or takes any final

action on such a finding, NSF will norPART 689—MISCONDUCT IN SCIENCE

mally afford the accused individual or AND ENGINEERING RESEARCH

institution notice, a chance to provide

comments and rebuttal, and a chance Sec.

to appeal. In structuring procedures in 689.1 General policies and responsibilities.

individual cases, NSF may take into 689.2 Actions.

account procedures already followed 689.3 Role of awardee institutions.

by other entities investigating the 689.4 Initial NSF handling of misconduct matters.

same allegation of misconduct. 689.5 Investigations.

(e) Debarment, suspension, or termi689.6 Pending proposals and awards.

nation of an award for misconduct will 689.7 Interim administrative actions.

be imposed only after further proce689.8 Dispositions.

dures described in applicable debar689.9 Appeals.

ment and suspension regulations. AUTHORITY: Sec. 11(a), National Science Nothing in these regulations shall preFoundation Act of 1950, as amended (42 clude integrated and concurrent proceU.S.C. 1870(a)).

dures under these regulations and the SOURCE: 52 FR 24468, July 1, 1987, unless debarment and suspension regulations. otherwise noted.

(f) The Division of Adult and Over

sight (DAO) in the Office of Budget, 8 689.1 General policies and responsibil.

Audit, and Control, oversees and coities.

ordinates NSF activities related to (a) “Misconduct" means (1) fabrica misconduct, conducts any NSF inquirtion, falsification, plagiarism, or other ies and investigations into suspected or serious deviation from accepted prac alleged misconduct, and except where tices in proposing, carrying out, or re otherwise provided, speaks and acts porting results from research; (2) ma for NSF with affected individuals and terial failure to comply with Federal institutions. The Office of the General

Counsel (OGC) advises DAO and represents NSF on any current or potential criminal prosecution, current or potential litigation, or significant legal questions that arise.

(4) Whether it is relevant only to certain funding requests or awards or to all requests or awards involving an institution or individual found guilty of misconduct.

(c) Interim actions may include, but are not limited to:

(1) Totally or partially suspending an existing award;

(2) Totally or partially suspending eligibility for NSF awards in accordance with debarment-and-suspension regulations;

(3) Proscribing or restricting particular research activities, as, for example, to protect human or animal subjects;

(4) Requiring special certifications, assurances, or other administrative ar. rangements to ensure compliance with applicable regulations or terms of the award;

(5) Requiring more prior approvals by NSF;

(6) Deferring funding action on continuing grant increments;

(7) Deferring a pending award;

(8) Restricting or suspending use of individuals as NSF reviewers, advisors, or consultants.

(d) For those cases governed by the debarment and suspension regulations, the standards of proof contained in those regulations shall control. Otherwise, NSF will take no final action under this section without a finding of misconduct supported by a preponderance of the relevant evidence.

8 689.2 Actions.

(a) Possible final actions listed below for guidance range from minimal restrictions (Group I) to the most severe and restrictive (Group III). They are not exhaustive and do not include possible criminal sanctions.

(1) Group I Actions. (i) Send a letter of reprimand to the individual or insti. tution.

(ii) Require as a condition of an award that for a specified period an individual, department, or institution obtain special prior approval of particular activities from NSF.

(iii) Require for a specified period that an institutional official other than those guilty of misconduct certify the accuracy of reports generated under an award or provide assurance of compliance with particular policies, regulations, guidelines, special terms and conditions.

(2) Group II Actions. (i) Restrict for a specified period designated activities or expenditures under an active award.

(ii) Require for a specified period special reviews of all requests for funding from an affected individual, department, or institution to ensure that steps have been taken to prevent repetition of the misconduct.

(3) Group III Actions. (i) Immediately suspend or terminate an active award under appropriate NSF regulations.

(ii) Debar or suspend an individual, department, or institution from participation in NSF programs for a specified period after further proceedings under applicable regulations.

(iii) Prohibit participation of an individual as an NSF reviewer, advisor, or consultant for a specified period.

(b) In deciding what actions are appropriate when misconduct is found, NSF officials should consider:

(1) How serious the misconduct was;

(2) Whether it was deliberate or merely careless;

(3) Whether it was an isolated event or part of a pattern;

or

8 689.3 Role of awardee institutions.

(a) Awardee institutions bear primary responsibility for prevention and detection of misconduct. In most instances, NSF will rely on awardee institutions to promptly:

(1) Initiate an inquiry into any suspected or alleged misconduct;

(2) Conduct a subsequent investigation, if warranted; and

(3) Take action necessary to ensure the integrity of research, the rights and interests of research subjects and the public, and the observance of legal requirements or responsibilities.

(b) If an institution wishes NSF to defer independent inquiry or investi. gation, NSF expects it to:

(1) Inform NSF immediately if an whether any criminal investigation is initial inquiry supports a formal inves already pending or projected. If not, tigation.

OGC and DAO will determine wheth(2) Keep NSF informed during such er the matter should be referred to an investigation.

the Department of Justice. (3) Notify NSF even before deciding (d) Otherwise DAO may: to initiate an investigation or as re

(1) Inform the awardee institution quired during an investigation (i) if

of the alleged misconduct and encourthe seriousness of apparent miscon

age it to undertake an inquiry; duct warrants; (ii) if immediate health

(2) Defer to inquiries or investigahazards are involved; (iii) if NSF's re

tions of the awardee institution or of sources, reputation, or other interests

another Federal agency; need protecting; (iv) if Federal action

(3) At any time proceed with its own may be needed to protect the interests

inquiry. of a subject of the investigation or of others potentially affected; or (v) if

(e) If DAO proceeds with its own inthe scientific community or the public

quiry it will normally complete the inshould be informed.

quiry no more than 60 days after initi(4) Provide NSF with the final ating it. report from any investigation.

(f) On the basis of what it learns (c) If an institution wishes NSF to from an inquiry and in consultation as defer independent inquiry or investi appropriate with other NSF offices, gation, it should complete any inquiry DAO will decide whether a formal and decide whether an investigation is NSF investigation is warranted. warranted within 90 days. It should similarly complete any investigation 8 689.5 Investigations. and reach a disposition within 180 (a) When an awardee institution or days. If completion of an inquiry or in another Federal agency has promptly vestigation is delayed, but the institu

initiated its own investigation, DAO tion wishes NSF deferral to continue,

may defer any NSF inquiry or investiNSF may require submission of period

gation until it receives the results of ic status reports.

that external investigation. If it does (d) Awardee institutions should

not receive the results within 180 days, maintain and effectively communicate

DAO will ordinarily proceed with its to their staffs appropriate policies and

own investigation. procedures relating to misconduct,

(b) If DAO decides to initiate an which should indicate when NSF must or should be notified.

NSF investigation, it must give prompt

written notice to the individuals or in8 689.4 Initial NSF handling of miscon

stitutions to be investigated, unless duct matters.

notice would prejudi the investiga(a) NSF staff who learn of alleged

tion or unless a criminal investigation misconduct will promptly and discreet

is underway or under active considerly inform DAO or refer informants to

ation. If notice is delayed, it must be DAO.

given as soon as it will no longer preju(b) To the extent possible the identi

dice the investigation or contravene ty of informants who wish to remain

requirements of law or Federal law-enanonymous will be kept confidential.

forcement policies. To the extent allowed by law, docu

(c) If a criminal investigation by the ments and files maintained by NSF Department of Justice, the Federal during the course of an inquiry or in Bureau of Investigation, or another vestigation of misconduct will be treat Federal agency is underway or under ed as investigative files exempt from active considerationby these agencies mandatory public disclosure upon re or the NSF, OGC will advise DAO quest under the Freedom of Informa what information, if any, may be distion Act.

closed to the subject of the investiga(c) If alleged misconduct may in tion or to other NSF employees. volve a crime, DAO will promptly con (d) An NSF investigation may insult with OGC, which will determine clude:

(1) Review of award flles, reports, and other documents already readily available at NSF or in the public domain;

(2) Review of procedures or methods and inspection of laboratories, laboratory materials, specimens, and records at awardee institutions;

(3) Interviews with parties or witnesses;

(4) Review of any documents or other evidence provided by or properly obtainable from parties, witnesses, or other sources;

(5) Cooperation with other Federal agencies;

(6) Opportunity for the subject of the investigation to be heard; and

(7) Full adjudicatory hearings or other formal proceedings, as described in appropriate regulations.

(e) NSF may invite outside consultants or experts to participate in an NSF investigation. They should be appointed in a manner that ensures the official nature of their involvement and provides them with legal protections available to federal employees.

(f) DAO will make every reasonable effort to complete an NSF investigation and to report within 120 days after initiating it. If DAO cannot report within 120 days, it should submit to the Deputy Director within 90 days an interim report and an estimated schedule for completion of the final report. 8 689.6 Pending proposals and awards.

(a) Upon learning of alleged misconduct DAO will identify potentially implicated awards or proposals and, when appropriate, will ensure that program and DGC officials handling them

informed (subject to $ 689.5(c)).

(b) Neither a suspicion or allegation of misconduct nor a pending inquiry or investigation will normally delay review of proposals. To avoid influencing reviews, reviewers or panelists will not be informed of allegations or of ongoing inquiries or investigations. However, if allegations, inquiries, or investigations have been rumored or publicized, the responsible Assistant Director may, in consultation with DAO, either defer review or inform reviewers of the status of the matter.

8 689.7 Interim administrative actions.

(a) After an inquiry or during an external or NSF investigation the Deputy Director may order that interim actions (as described in $ 689.2(c)) be taken to protect Federal resources or to guard against continuation of any suspected or alleged misconduct. Such an order will normally be issued on recommendation from DAO and in consultation with DGC, OGC, the responsible Directorate, and other parts of the Foundation as appropriate.

(b) Such interim actions may be taken whenever information devel. oped during an investigation indicates a need to do so. Any interim action will be reviewed periodically during an investigation and modified as warranted. An interested party may request & review and modification of any interim action.

(c) The Deputy Director will make and DAO will retain a record of interim actions taken and the reasons for taking them.

(d) Interim administrative actions are not final agency actions subject to appeal.

are

8 689.8 Dispositions.

(a) After receiving a report from an external investigation by an awardee institution or another Federal agency DAO will assess the accuracy and completeness of the report and whether the investigating entity followed usual and reasonable procedures. It will either recommend adoption of the findings in whole or in part or, normally within 30 days, initiate a new investigation.

(b) When any satisfactory external investigation or an NSF investigation fails to confirm alleged misconduct and the Deputy Director concurs,

(1) DAO will notify the subject of the investigation and, if appropriate, those who reported the suspected or alleged misconduct. This notification may include the investigation report.

(2) Any interim administrative restrictions that were imposed will be lifted.

(c) When any satisfactory investigation confirms misconduct, (1) Except in unusual circumstances, the investigation report will be provided by DAO

to the subject of the investigation, ing actions to be taken. The decision who will be invited to submit com will include instructions on how to ments or rebuttal. Comments or rebut pursue an appeal. tal submitted within the period allowed, normally thirty days, will re

8 689.9 Appeals. ceive full consideration and may lead (a) In case of debarment, suspension, to revision of the report or of a recom or termination of an award for misconmended disposition.

duct, the appeals provided for in NSF (2) Normally within 45 days after regulations will be available. In all completing an NSF investigation or re other cases, an affected individual or ceiving the report from a satisfactory institution may appeal to the Director external investigation, DAO will in writing within 30 days after receivsubmit to the Deputy Director the in ing the Deputy Dirctor's written decivestigation report, any comments or sion. The Deputy Director's decision rebuttal from the subject of the inves becomes a final administrative action tigation, and a recommended disposi if it is not appealed within the 30 day tion. The recommended disposition period. will propose any final actions to be (b) The Director may appoint an untaken by NSF. Section 689.2 lists possi- involved NSF officer or employee to ble final actions and considerations to review an appeal and make recommenbe used in determining them.

dations. (d) The Deputy Director will review (c) The Director will inform the apthe investigative report and DAO's pellant of a final decision within 30 recommended disposition. Before issu days after receiving the appeal. That ing a disposition the Deputy Director decision will be the final administramay initiate further hearings or inves tive action of the Foundation. Findtigation. Normally within thirty days ings from completed investigations after receiving DAO's recommenda may be shared with scientific review tid or after completion of any fur groups if the information bears directther proceedings, the Deputy Director ly on an investigator's scientific integwill send the affected individual or in rity or if necessary to provide an accustitution a written disposition, specify rate account of relevant facts.

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