[Code of Federal Regulations]
[Title 42, Volume 1]
[Revised as of October 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 42CFR93.106]

[Page 590-591]
 
                         TITLE 42--PUBLIC HEALTH
 
    CHAPTER I--PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN 
                                SERVICES
 
PART 93_PUBLIC HEALTH SERVICE POLICIES ON RESEARCH MISCONDUCT--
Table of Contents
 
                            Subpart A_General
 
Sec. 93.106  Evidentiary standards.

    The following evidentiary standards apply to findings made under 
this part.
    (a) Standard of proof. An institutional or HHS finding of research 
misconduct must be proved by a preponderance of the evidence.
    (b) Burden of proof. (1) The institution or HHS has the burden of 
proof for making a finding of research misconduct. The destruction, 
absence of, or respondent's failure to provide research records 
adequately documenting the questioned research is evidence of research 
misconduct where the institution or HHS establishes by a preponderance 
of the evidence that the respondent intentionally, knowingly, or 
recklessly had research records and destroyed them, had the opportunity 
to maintain the records but did not do so, or maintained the records and 
failed to produce them in a timely manner and that the respondent's 
conduct constitutes a significant departure from accepted practices of 
the relevant research community.
    (2) The respondent has the burden of going forward with and the 
burden of proving, by a preponderance of the evidence, any and all 
affirmative defenses raised. In determining whether HHS or the 
institution has carried the burden

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of proof imposed by this part, the finder of fact shall give due 
consideration to admissible, credible evidence of honest error or 
difference of opinion presented by the respondent.
    (3) The respondent has the burden of going forward with and proving 
by a preponderance of the evidence any mitigating factors that are 
relevant to a decision to impose administrative actions following a 
research misconduct proceeding.