OMB Circular A-110, ``Uniform Administrative Requirements for Grants and Agreements With Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations''

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.

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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.''

Pub. L. 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 Pub. 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:

[email protected]. 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.

FOR FURTHER INFORMATION CONTACT: F. James Charney, Policy Analyst,

Office of Management and Budget, at (202) 395-3993.

SUPPLEMENTARY INFORMATION: Pub. L. 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.'' Pub. 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 Pub. 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 Pub. 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 Pub. 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 Pub. 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 Pub. L. 105-

277 OMB is proposing to revise Circular A-110 as shown below.

Issued in Washington, DC, January 26, 1999.

Norwood J. Jackson,

Acting Controller.

Pursuant to the direction of Pub. 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

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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)).

[FR Doc. 99-2220 Filed 2-3-99; 8:45 am]

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