OMB Circular A-110, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations."
AGENCY: Office of Management and Budget, Executive Office of the President
ACTION: Proposed Revision
SUMMARY: This notice offers interested parties an additional opportunity to comment on a proposed revision to OMB Circular A-110, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations." Public Law 105-277 directs OMB to amend Section ___.36 of the Circular "to require Federal awarding agencies to ensure that all data produced under an award will be made available to the public through the procedures established under the Freedom of Information Act" (FOIA). Pursuant to the direction of P.L. 105-277, OMB published a Notice of Proposed Revision on February 4, 1999. After reviewing the approximately 9,150 public comments received in response to that notice, OMB has revised the proposed language and now seeks additional comments.
DATES: Comments must be received by [30 days after publication in the Federal Register].
ADDRESSES: Comments on this proposed revision should be addressed to: F. James Charney, Policy Analyst, Office of Management and Budget, Room 6025, New Executive Office Building, Washington, DC 20503. Comments may be submitted via E-mail to: grants@omb.cop.gov. E-mail comments must be made in the text of the message and not as an attachment. Multiple copies of the same letter, signed by the same person, will not be counted as separate comments. The full text of Circular A-110, as well as the text of this notice, may be obtained by accessing OMB's home page (http://www. whitehouse.gov/OMB), under the heading "Grants Management." Copies of P.L. 105-277 can be obtained by accessing the Library of Congress's home page (http://thomas.loc.gov).
FOR FURTHER INFORMATION CONTACT: F. James Charney, Policy Analyst, Office of Management and Budget, at (202) 395-3993. Press inquiries must be directed to OMB's Communications Office, at (202) 395-7254.
SUPPLEMENTARY INFORMATION:
A. Background: Public Law 105-277 includes a provision that directs OMB to amend Section ___.36 of the Circular "to require Federal awarding agencies to ensure that all data produced under an award will be made available to the public through the procedures established under the Freedom of Information Act." P.L. 105-277 further provides that "if the agency obtaining the data does so solely at the request of a private party, the agency may authorize a reasonable user fee equaling the incremental cost of obtaining the data." To response to P.L. 105-277, OMB published a Notice of Proposed Revision to the Circular on February 4, 1999 (64 FR 5684).
B. Public Comments: Approximately 8,350 comments were received by OMB during the 60 day public comment period. Additionally, approximately 800 comments were received by OMB after the close of the comment period.
Type of Respondent. Fifty-five percent of the comments received during the comment period were submitted by individual members of the public, without any organizational identification. Individual researchers working at institutions of higher education accounted for 36 percent of the comments. The remainder of the comments came from other non-profit research organizations (three percent), professional associations (two percent), commercial research organizations (one percent), and official comments from institutions of higher education (one percent). Comments from Federal agencies, employees of State governments, law firms, and Members of Congress, were also received but each amounted to less than one percent of the total comment.
Summary of Comments. Of those comments received during the comment period, 55 percent supported implementation of P.L. 105-277 in the form of the proposed revision while 37 percent opposed the language of P.L. 105-277 and the proposed revision. Additionally, eight percent of those commenting had serious concerns about the proposed revision, suggesting that it be modified in some substantial way.
There were many issues and concerns raised in the public comments. Specifically, the need to define certain terms used in either P.L. 105-277 or the proposed revision, was highlighted in many comments. Also, public comments asked for an explanation of how the proposed revision would be implemented within the framework of current Federal policy, including such issues as record retention and cost reimbursement.
C. Definitions: In order to move forward with implementation of P.L. 105-277. OMB is proposing definitions for the following three terms (as a new Section 36(a)) and seeks comment on them. Data. OMB is proposing to define "data" as any raw underlying information necessary to validate researching findings, but not information that would violate the privacy rights of research subjects or the intellectual property rights of researchers. P.L. 105-277 and the proposed revision are intended to provide greater public access to Federally funded research data and allow the results of the research to be verified, while protecting the rights of award recipients and their research subjects. FOIA includes statutory "exemptions" (found in 5 U.S.C. 552(b)) from the requirement to disclose Federal records. These exemptions will be fully applicable to any data submitted to a Federal awarding agency under the proposed revision. After obtaining and reviewing the requested data, the Federal awarding agency will determine whether any of the FOIA exemptions apply to some or all of the data. For example, FOIA Exemption 6,5 U.S.C. 552(b)(6), exempts "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy" and FOIA Exemption 4,5 U.S.C. 552(b)(4), exempts "trade secrets and commercial or financial information."
However, many comments noted a concern that even though the FOIA exemptions will be applicable at the Federal level, the proposed revision may undermine a researcher's privacy agreements with their subjects, leading to reduced numbers of individuals willing to volunteer for research studies. It is important that the proposed revision does not undermine the ability of researchers to protect the privacy rights of their subjects.
Published. OMB is proposing to define "published" to mean no later than when research findings are published in a peer reviewed journal, or when a Federal agency cites the research findings in a proposed rule. Various comments expressed a concern that the proposed revision may lead to premature release of data as well as misunderstandings and false claims about what research proves. Making data publicly available too early, they noted, also prevents future publication in some peer reviewed journals, and may limit a researcher's patent rights as well as the willingness of private sector organizations to enter into partnerships, unless their proprietary data is protected. Other researchers feared harassment from groups that do not support certain scientific methods or those that do not support certain areas of research. These concerns can be mitigated if data is not released until a research project has been "published." Even after publication, it is important that the intellectual property rights of commercial entities who partner with recipients are protected.
Rule. OMB is proposing to define "rule" as an agency statement of general applicability and future effect, which the agency intends to have the force and effect of law, that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency. This definition is based on the definition provided in Executive Order 12866, "Regulatory Planning and Review." Many comments noted that the public's right to know what is being funded with tax dollars, especially when research is later used as the basis of a Federal regulation. When a Federal rule is issued, it should cite all Federally-funded studies which were considered in its development. FOIA requests should be received by Federal agencies with sufficient time left in the comment period to allow processing of the request, including coordination with recipients and subrecipients.
D. Clarification of Current Policy: The public comments also raised questions which can most easily be answered by clarifying existing policy as found in Circular A-110 or the related Circular A-21, "Cost Principles for Educational Institutions." The discussion of the six issues listed below are not changes caused by the proposed revision. Rather, this is only a means to clarify how these issues might affect implementation of the proposed revision.
Effective Date. The final revision will be effective 30 days after its publication in the Federal Register. Federal awarding agencies will then have six months to adopt the revision into their regulations. Earlier implementation will be encouraged. The final revision will be applicable to awards made after the effective date.
Record Retention and Access. Section 53 of the Circular requires that "[f]inancial records, supporting documents, statistical records, and all other records pertinent to an award shall be retained for a period of three years from the date of submission of the final expenditure report." In addition, "[t]he Federal awarding agency, the Inspector General, Comptroller General of the United States, or any of their duly authorized representatives, have the right of timely and unrestricted access to any books, documents, papers, or other records of recipients that are pertinent to the awards, in order to make audits, examinations, excerpts, transcripts and copies of such documents . . . The rights of access in this paragraph are not limited to the required retention period, but shall last as long as records are retained." Therefore, data, as defined in the newly proposed revision, must be held for at least three years by the recipient. If a recipient chooses to keep the data longer than three years, the Federal Government must be allowed access to it.
First Produced. Section 36 of the Circular notes the Federal Governments' right to data "first produced under an award." Data, as defined in the newly proposed revision, brought to a project by the recipient that were developed or obtained before the award will not be affected by the proposed revision.
Projects Funded from Multiple Sources. As cited in the original revision, it is both the current policy of the Circular, and the intent of P.L. 105-277s sponsors that "the amended Circular shall apply to all Federally funded research, regardless of the level of funding or whether the award recipient is also using non-Federal funds." 144 Cong. Rec. S12134 (October 9, 1998) (Statement of Sen. Campbell).
Procurement Contracts. The Circular does not apply to procurement contracts. Section 2(e) of the Circular defines "award," and specifically excludes "contracts which are required to be entered into and administered under procurement laws and regulations."
Cost Reimbursement. Costs born by recipients of Federal financial assistance due to the proposed revision will be eligible for reimbursement. OMB intends to revise Circular A-21 to allow institutions of higher education to seek reimbursement for the costs related to data requests without violating the 26 percent cap on administrative expenses. However, a legislative change must first be made to allow Federal awarding agencies to collect the "fee" suggested by P.L. 105-277.
OMB encourages interested parties to provide comment on the three new definitions at this time so that any concerns may be addressed in OMB's development of the final revision to the Circular, to be published after the close of the comment period.
In conclusion, pursuant to the discretion contained in P.L. 105-277, OMB is proposing to revise Circular A-110 as shown below.
Issued in Washington, D.C., July_, 1999. DRAFT Norwood J. Jackson Acting Controller
Pursuant to the direction of P.L. 105-277, OMB hereby proposes to amend Section_.36 of OMB Circular A-110 to read as follows:
(a) The following definitions are to be used for purposes of this section:
(1) "Data" is defined as any underlying raw information necessary to validate researching findings, but not preliminary analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues. Data also does not include (i) trade secrets, commercial information, materials necessary to be held by a researcher until publication of their results in a peer-reviewed journal, or facts which may be copyrighted or patented; or (ii) personnel and medical files and similar files the disclosure or which would constitute a clearly unwarranted invasion of personal property, or that which could be used to identify a particular person in a research study.
(2) "Published" is defined as no later than when (i) research findings are published in a peer-reviewed scientific or technical journal, or (ii) a Federal agency cites the research findings in a proposed rule.
(3) "Rule" is defined as an agency statement of general applicability and future effect, which the agency intends to have the force and effect of law, that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency.
(b) [Re-designation of text currently in 36(a)]
(c) [Re-designation of text currently in 36(b)]
(d) The Federal Government has the right to (1) obtain, reproduce, publish or otherwise use the data first produced under an award, and (2) authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes. In addition, in response to a Freedom of Information Act (FOIA) request for data relating to published research findings produced under an award that were used by the Federal Government in developing a rule, the Federal awarding agency shall, within a reasonable time, obtain the requested data so that they can be made available to the public through the procedures established under the FOIA. If the Federal awarding agency obtains the data solely in response to a FOIA request, the agency may charge the requestor a reasonable fee equaling the full incremental cost of obtaining the data. This fee XXX XXXX costs incurred by the agency, the recipient, and applicable subrecipients. This fee is in addition to any fees the agency may assess under the FOIA (5 U.S.C. 552(a)(4)(A)).
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