OFFICE
OF MANAGEMENT AND BUDGET
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 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 OMB Circular A-110
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).
The Act further states that "if the agency obtaining the data does
so solely" in response to a FOIA request, the agency "may authorize
a reasonable user fee equaling the incremental cost of obtaining
the data." Pursuant to the direction of P.L. 105-277, OMB is proposing
to revise Circular A-110 as shown below.
DATES:
Comments must be received by April 5, 1999.
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. If possible,
please include a word processing version of comments on a computer
disk. Comments may also be submitted via E-mail to: fcharney@omb.eop.gov.
Please include the full body of E-mail comments in the text of the
message and not as an attachment. Please include the name, title,
organization, postal address, and E-mail address in the text of
the message. The full text of Circular A-110 may be obtained by
calling the Office of Administration, Publications Office at (202)
395-7332 or by accessing OMB's home page (/OMB).
FOR
FURTHER INFORMATION CONTACT: F. James Charney, Policy Analyst,
Office of Management and Budget, at (202) 395-3993.
SUPPLEMENTARY
INFORMATION: Public Law 105-277 includes a provision that directs
OMB to amend Section __.36 of OMB Circular A-110 "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." According
to congressional floor statements made in support of the provision,
its aim is to "provide the public with access to federally funded
research data" that is "used by the Federal Government in developing
policy and rules." 144 Cong. Rec. S12134 (October 9, 1998)
(Statement of Sen. Lott); see id. (Statement of Sen.
Shelby) (the provision "represents a first step in ensuring that
the public has access to all studies used by the Federal Government
to develop Federal policy").
In
describing the foregoing provisions of P.L. 105-277, congressional
proponents stated that it requires OMB "to amend OMB Circular A-110
to require Federal awarding agencies to ensure that all research
results, including underlying research data, funded by the Federal
Government are made available to the public through the procedures
established under the Freedom of Information Act." Id. (Statement
of Sen. Lott). The proponents also stated 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." Id. (Statement of Sen. Campbell). They also explained
that "[t]he Conferees recognize that this language covers research
data not currently covered by the Freedom of Information Act. The
provision applies to all Federally funded research data regardless
of whether the awarding agency has the data at the time the request
is made" under the FOIA. Id. Under the Supreme Court's decision
in Forsham v. Harris, 445 U.S. 169, 179-80 (1980), data that
is in the files of a recipient of a Federal award, but not in the
files of a Federal agency, would not otherwise be available under
FOIA.
The
proposed revision to Section ___.36 of Circular A-110 implements
the requirements of P.L. 105-277 by providing that, after publication
of research findings used by the Federal government in developing
policy or rules, the research results and underlying data would
be available to the public in accordance with the FOIA. Pursuant
to the direction of P.L. 105-277, the proposed revision requires
Federal awarding agencies, in response to a FOIA request, to obtain
the requested data from the recipient of the Federal award. Since
the agency must take steps to obtain the data, the agency is afforded
a reasonable time to do so. Once the agency has obtained the data,
the agency will then process the FOIA request in accordance with
the standard procedural and substantive rules that govern FOIA requests.
These standard FOIA rules include the statutory concept of what
constitutes a "record" and the statutory "exemptions" (found in
5 U.S.C. 552(b)) from the FOIA's requirement to disclose records.
Accordingly, after obtaining and reviewing the requested data, the
agency will have to determine whether any of the FOIA exemptions,
which permit an agency to withhold requested records, would 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". If the Federal awarding agency obtained the
data solely in response to a FOIA request, the agency may charge
the requester a reasonable fee equaling the full incremental cost
of obtaining the data. This fee should reflect 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)).
OMB
recognizes that this proposed revision required by P.L. 105-277
raises a number of important issues. Accordingly, OMB encourages
interested parties to provide comment 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 direction contained in P.L. 105-277
OMB is proposing to revise Circular A-110 as shown below.
Pursuant
to the direction of P.L. 105-277, OMB hereby proposes to amend Section
____.36(c) of OMB Circular A-110 to read as follows:
(c)
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 policy or rules, 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 requester a reasonable fee equaling the full incremental cost
of obtaining the data. This fee should reflect 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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