TO: Director, Office of Grants Management

FROM: Executive Officer, SAMHSA

SUBJECT: Proposed Revision to OMB Circular No. A-110

This is in response to Mr. Tychan's invitation to comment on OMB's recent proposal to revise Circular No. A-110 pursuant to P.L. 105-277. We have reviewed the proposal and offer the following comments:

We note that the provision is intended to flow to A-110 subrecipents (see the penultimate sentence of proposed section __.36(c) ) but it would be helpful to know how many tiers are intended. We would prefer it to be limited to prime recipients since we have a direct relationship with them which we do not have with subrecipents. It will be difficult to obtain data from a reluctant subrecipient since we will have to work through a prime. This potential difficulty is magnified at each level if it must flow through several tiers of subrecipients. Accordingly, if it must extend to subrecipients at all, we strongly recommend OMB make clear it extends only to the first subrecipient level.

We assume the Congress may have carefully limited implementation through Circular A-110 and the nonprofit grantee organizations subject to that circular, in part, to intentionally avoid extending coverage to grantees which are units of government subject to Circular No. A-102. Accordingly, we seek clarification of whether OMB intends that the requirements for making the specified data available should extend to the one of more subrecipient levels which might be involved under a grant to a unit of government. In this regard, we note that an A-102 grantee is usually required to impose the provisions of A-110 on its nonprofit subrecipients. Since the Federal agency has no legal relationship with subrecipients in most cases, we could not go directly to the subrecipient for the data. It might put a State or other unit of government grantee into the position of having to take enforcement actions against its subrecipients for failure to comply with a circular not otherwise applicable to the State.

We believe OMB should include a narrow and precise definition of Aresearch@ for the purposes of this provision. It would be unfortunate if different agencies defined the term differently given it is based on a single statutory source authority. It seems reasonable to assume certain organizations, perhaps consumer interest groups, might make requests of more than one Federal agency and note discrepancies. For example, SAMHSA would need clarification as to whether research includes projects we consider Aknowledge development@ and Aevaluations@ or if it would only apply to the classic research typified by NIH bench science.

The Notice discusses that agencies may charge a reasonable fee under certain conditions, and that the fee should reflect the costs of the agency, the recipient and applicable subrecipients. This fee is in addition to any fees the agency may assess under FOIA. Currently, all FOIA fees collected by the agency are deposited in the Treasury and are not available for agency use. Accordingly, we are concerned that fees collected to reflect grantee and subrecipient costs would likewise not be directly available to the agency to reimburse the grantee and subrecipient. If the intent of the provision is to cover grantee and subrecipient costs, it might be better for the Federal agency billing the requester to require payments be made directly to those parties incurring the actual costs. This approach would appropriately reimburse the parties while not requiring us to divert our own funds budgeted for other needs to this purpose.

I believe OMB should give direction to agencies on the preferred method of enforcing this provision in the case of reluctant or defiant grantees. We would have no cause of action based on failure to perform as this is not a programmatic issue nor is it an administrative issue related to grant performance. We would like the circular to specify who is to take action against a subrecipient when the subrecipient refuses to comply. Since we do not now have a direct relationship with the subrecipients, are we to act against the prime grantee as we do now when a subrecipient misspends funds and we demand repayment from the prime grantee?

One final concern is the issue of when this takes effect. It may be that some grantees have gathered data under earlier rules providing that the data would not be available under FOIA. In turn, the grantees may have assured parties such as commercial organizations that data they shared with the grantee would be protected. We would recommend that this provision apply to data collected at the source level after the effective date of the change; that is, data generated by, or provided to, grantees with the knowledge it was subject to release under FOIA. To do otherwise would be to break faith with our grantees and to possibly cause them to break faith with those with whom they do business.

We hope these comments prove helpful.

Richard Kopanda