[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: 
[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]
BILLING CODE 3110-01-P