[Federal Register Volume 64, Number 23 (Thursday, February 4, 1999)]
[Notices]
[Pages 5684-5685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2220]
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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:
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.
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
[[Page 5685]]
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]
BILLING CODE 3110-01-P
