This is historical material, "frozen in time."
The web site is no longer updated and links to external web sites and some internal pages will not work.
This is historical material, "frozen in time."
The web site is no longer updated and links to external web sites and some internal pages will not work.
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: Final Revision
SUMMARY: This notice finalizes the revision to OMB Circular A-110, required by a provision of
OMB's appropriation for fiscal year (FY) 1999, contained in Public Law 105-277. The provision
directs OMB to amend Section ___.36, Intangible property, of the Circular "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). Pursuant to the direction of
the provision contained in Public Law 105-277, OMB published a Notice of Proposed Revision on
February 4, 1999 (64 FR 5684), and a request for comments on clarifying changes to the proposed
revision on August 11, 1999 (64 FR 43786). We received over 9,000 comments on the proposed
revision and over 3,000 comments on the clarifying changes.
After a review of the comments on the clarifying changes, as well as the comments on the proposed
revision, OMB is issuing this final revision to the Circular, as required by the provision contained in
Public Law 105-277.
DATES: The revised Circular is effective November 6, 1999.
ADDRESSES: You may obtain the full text of the Circular, the text of this notice, and the text of the
February 4th and August 11th notices on OMB's home page (/OMB), under
the heading "Grants Management." You many obtain copies of Public Law 105-277 on the Library of
Congress's home page (http://thomas.loc.gov).
FOR FURTHER INFORMATION CONTACT: F. James Charney, Policy Analyst, Office of
Management and Budget, at (202) 395-3993. Please direct press inquiries to OMB's Communications
Office, at (202) 395-7254.
SUPPLEMENTARY INFORMATION:
I. Background
A. The Statutory Direction to Amend Circular A-110
Congress included a two-sentence provision in OMB's appropriation for FY 1999, contained in Public
Law 105-277, directing OMB to amend Section ___.36 of the Circular "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." The provision also provides for a
reasonable fee to cover the costs incurred in responding to a request. The Circular applies to grants and
other financial assistance provided to institutions of higher education, hospitals, and non-profit
institutions, from all Federal agencies.
In directing OMB to revise the Circular, Congress entrusted OMB with the authority to resolve
statutory ambiguities, the obligation to address implementation issues the statute did not address, and the
discretion to balance the need for public access to research data with protections of the research
process. In developing this revision to the Circular, OMB seeks to implement the statutory language
fairly, in the context of its legislative history. This requires a balanced approach that (1) furthers the
interest of the public in obtaining the information needed to validate Federally-funded research findings,
(2) ensures that research can continue to be conducted in accordance with the traditional scientific
process, and (3) implements a public access process that will be workable in practice.
OMB recognizes the importance of ensuring that the revised Circular does not interfere with the
traditional scientific process. Science and technology are the principal agents of change and progress,
with over half of the Nation's labor productivity growth in the last 50 years attributable to technological
innovation and the science that supports it. Although the private sector makes many investments in
technology development, the Federal Government has an important role to play -- particularly when
risks appear too great or the return to companies too speculative. Its support of cutting-edge science
contributes to new knowledge and greater understanding, ranging from the edge of the universe to the
smallest imaginable particles. When the Federal Government changes the requirements that apply to
researchers whom it funds, it needs to ensure that the changes do not interfere with cutting-edge science
and the benefits that such science provides to the American people.
During the revision process, many commenters expressed concern that the statute would compel
Federally-funded researchers to work in a "fishbowl" in which they would be required to reveal the
results of their research, and their research methods, prematurely. They argued that this could prevent
researchers from operating under the traditional scientific process. As in many other fields of endeavor,
scientists need to deliberate over, develop, and pursue alternative approaches in their research before
making results public. When a scientist is sufficiently confident of their results, they publish them for the
scrutiny of other scientists and the community at large. Accordingly, in light of this traditional scientific
process, we have not construed the statute as requiring scientists to make research data publicly
available while the research is still ongoing.
B. OMB's Two Requests for Public Comment on the Proposed Revision
To address implementation issues, OMB published two notices in the Federal Register requesting public
comment on the proposed revision to the Circular. Interested parties can consult these notices, which
provide extensive background information, for a more complete understanding of the final revision. The
original proposal appeared on February 4, 1999 (64 FR 5684). It would have revised Section ___.36
of the Circular 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))."
OMB received over 9,000 comments in response to the proposed revision. Commenters offered
strongly differing views on the provision contained in P.L. 105-277. Those who supported the statutory
provision stated that the public has a right to obtain research data that have been funded with tax
dollars, particularly when the research findings were used by the Federal Government in developing
policy or rules. These commenters also expressed the view that making this data available for public
review and validation would improve the scientific process. Commenters who opposed the provision
contained in P.L. 105-277 stated that they support the concepts of full disclosure and open access to
information. They acknowledged that the traditional scientific process operates by requiring researchers
to subject their findings to the scrutiny of the scientific community and the general public, so that those
findings may be validated, corrected, or rejected. However, they expressed concern that the approach
required by P.L. 105-277 would significantly impair scientific research. In their view, individuals and
businesses would be reluctant to agree to participate in research, since the participants' personal privacy
and proprietary information could not be assured of confidential treatment.
Many commenters on the original proposal asked OMB to clarify four concepts found in the proposed
revision: "data," "published," "used by the Federal Government in developing policy or rules," and cost
reimbursement. OMB agreed that clarification was needed for these concepts. On August 11, 1999,
OMB published a second notice (64 FR 43786), requesting public comment on clarifications to the
proposed revision:
"(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.
"(d) (1) In addition, in response to a Freedom of Information Act (FOIA) request for research data
relating to published research findings produced under an award that were used by the Federal
Government in developing a regulation, the Federal awarding agency shall request, and the recipient
shall provide, within a reasonable time, the research 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
research 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 research 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)).
"(2) The following definitions are to be used for purposes of paragraph (d) of this section:
"(i) Research data is defined as the recorded factual material commonly accepted in the scientific
community as necessary to validate researching findings, but not any of the following: preliminary
analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with
colleagues. This "recorded" material excludes physical objects (e.g., laboratory samples). Research data
also do not include: (A) trade secrets, commercial information, materials necessary to be held
confidential by a researcher until publication of their results in a peer-reviewed journal, or information
which may be copyrighted or patented; and (B) personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy, such as
information that could be used to identify a particular person in a research study.
"(ii) Published is defined as either when: (A) research findings are published in a peer-reviewed
scientific or technical journal; or (B) a Federal agency publicly and officially cites to the research findings
in support of a regulation.
"(iii) Used by the Federal Government in developing a regulation is defined as when an agency
publicly and officially cites to the research findings in support of a regulation (for which notice and
comment is required under 5 U.S.C. 553).
The August 11th notice explained these clarifications were intended to implement the statute in a manner
that (1) furthers the interest of the public in obtaining the information needed to validate
Federally-funded research findings, (2) ensures that research can continue to be conducted in
accordance with the traditional scientific process, and (3) implements a public access process that will
be workable in practice. OMB received over 3,000 comments in response to the clarifying changes.
After considering the views and concerns of all the commenters, OMB now issues a final revision to the
Circular. Although the final revision resembles the clarifying changes proposed on August 11, 1999, it
reflects additional changes in response to the public comments.
Issuance of this final revision meets the statutory requirement imposed by OMB's appropriation for FY
1999 within the time in which it has legal effect. As OMB and the agencies develop experience with the
revised Circular, changes to the data access process may be considered. These could range from
technical and clarifying changes to substantive revision or rescission. OMB also endeavors to review
each of its Circulars every three years.
II. Comments on the Clarifying Changes to the Proposed Revision
A. Research Data
A number of commenters objected that the proposed definition of "research data" would transfer
authority to determine which records are exempt from mandatory disclosure under FOIA from Federal
agencies to recipients. It was not OMB's intent to transfer the agency's FOIA exemption authority to
recipients. Rather, we were providing a definition for what constitutes research "data," a term that is not
defined in the provision contained in Public Law 105-277. We have always understood that it would be
the recipient, not Federal agency staff, who would identify the research data in the recipient's files which
are responsive to a FOIA request. In the over 12,000 comments OMB received on the proposed
revision, we are not aware of any suggestion that Federal agency staff should perform the search of a
recipient's offices to identify responsive research data. The fact that the recipient is responsible for
searching for, and identifying, the research data does not mean the Circular has transferred the agencies'
responsibility to recipients. When the recipient searches files for responsive research data, pursuant to
Section .___36(d), and in so doing applies the definition of "research data," the recipient is not
exercising the agencies' authority under FOIA to determine exemptions. Rather, the recipient is simply
identifying the research data that must be provided to the agency. The Federal awarding agency would
retain its right to ask the recipient for additional information, if it believed the recipient's submission was
not complete.
Several commenters expressed concern because the proposed definition of "research data" excluded
"information which may be copyrighted or patented." These commenters believed the proposed
language was too broad. They argued that, under copyright law, a wide range of materials "may be"
copyrighted, and therefore that such a test could have unintended consequences for the scope of the
public access process. In reviewing this language, we note that the protections available in the other
parts of the definition (in particular,those protecting "trade secrets" and "commercial information")
broadly protect the intellectual property rights of researchers. The proposed definition was not intended
to create additional protections for intellectual property, but rather to ensure that existing protections
continue to be respected. To avoid unintended consequences, and to avoid having to sort out the
complexities of copyright law (and how it might apply in various areas of Federally-funded research),
the final revision substitutes "similar information which is protected under law" for "information which
may be copyrighted or patented." This language is intended to ensure that the public access process will
not upset intellectual property rights that are elsewhere recognized and protected under the law.
Many commenters suggested a change to the definition of "research data" to ensure that appropriate
data were protected from disclosure, no matter what the format. Their suggestion was to replace the
word "files" with the word "information" in the phrase "[p]ersonnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Examples of
research data that might not be considered to be in the form of a "file" include video or audio tapes of
research subjects. We agree with this technical change and have included it in the final revision to the
Circular.
Several commenters noted that the definition of "research data" excluded "materials necessary to be held
confidential until publication of their results in a peer-reviewed journal." However, since this language is
not exactly the same as that used in the definition of "published," ("either when: (A) Research findings
are published in a peer-reviewed scientific or technical journal; or (B) A Federal agency publicly and
officially cites the research findings in support of an agency action that has the force and effect of law") it
appeared that the two might be in conflict. We have revised the definition of "research data" to avoid
any conflict between the two definitions.
Finally, several commenters asked for a clarification to the revision pertaining to research data already
available to the public. They suggested that if a request is made for research data the recipient has
already made available to the public, through a data archive or other means, further action should not be
necessary. Since this principle is used when a Federal agency responds to FOIA requests, it makes
sense to apply it in this case as well. However, the Federal awarding agency should respond to the
FOIA request with directions on how the requester can access the publicly available research data.
B. Used by the Federal Government in Developing a Regulation
A number of commenters objected to the definition which applied the revision to research data that are
used by the Federal Government in developing a "regulation." These commenters had generally been
satisfied with the language found in the proposed revision ("used by the Federal Government in
developing policy or rules"), because it had been used by congressional sponsors during the legislative
consideration of Public Law 105-277. However, these commenters believed that the clarifying changes
significantly narrowed the scope of the revision.
As we explained in the August 11th notice, its clarification was intended "to ensure that members of the
public can obtain the information needed to validate those Federally-funded research findings on which
Federal agencies rely when they take actions that have the force and effect of law, while at the same
time ensuring that the provision contained in Public Law 105-277 can be administered in a manner that
is workable for members of the public, Federal agencies and their recipients" (64 FR 43791). We
sought to refer to agency actions that have "the force and effect of law" when it included "a regulation
(for which notice and comment is required under 5 U.S.C. 553)" in the proposed definitions. While it is
true that agencies also take actions that have "the force and effect of law" when they issue administrative
orders (e.g., decisions issued by administrative law judges), we think that agencies rarely rely on
Federally-funded research in the context of their administrative orders. Nevertheless, in response to the
comments, we have changed the revision to refer to "an agency action that has the force and effect of
law" rather than to "a regulation."
We believe this change addresses the concerns of most commenters. We note that a comment letter
from Senators Shelby, Lott, Campbell, and Gramm stated that the revision should not be limited to
regulations, but should apply generally to "federal actions that can dramatically impact the public."
Agency actions that have "the force and effect of law" certainly represent "federal actions that can
dramatically impact the public." Indeed, it is through actions that have the force and effect of law that an
agency (in the words of one business association) "imposes costs, mandates, restrictions, obligations
and responsibilities on the regulated community." However, as stated in the August 11th notice, we have
decided not to extend the scope of the revision to agency guidance documents and other issuances that
do not have the force and effect of law. We continue to believe that the public interest in such access is
less than where the agency is taking action that has the force and effect of law, and that the revision
would not be workable in those circumstances. Some commenters, who argued for a broader
application, nevertheless were sympathetic to OMB's desire that the public access provision be
workable. For example, one commenter stated that "the reproposal may be a workable first step in
implementation. OMB could start with its August position and see how the system works."
A number of commenters raised a concern about whether requesters would be able to obtain the
research data sufficiently in advance of when public comments are due on proposed regulations. These
commenters offered various suggestions for how the Circular might be revised to address this concern.
In the prior two notices, OMB has proposed a "reasonable time" standard for the response to a request
for research data. Since OMB and the agencies do not yet have experience with implementing the
public access process, we believe the "reasonable time" standard, which allows consideration of the
circumstances of a particular case, is appropriate. As OMB and the agencies gain experience with the
public access process, we may be able to develop further clarification on this point.
Finally, in the August 11th notice, OMB also requested comment "on whether limiting the scope of the
proposed revision to regulations that meet [a] $100 million [impact] threshold would be appropriate"
(64 FR 43791). Such a limitation received strong support, as well as strong opposition from
commenters. For now, we have decided not to limit the scope of the revision to agency actions that
have an impact in excess of $100 million. As OMB and the agencies develop experience from
implementing the revision, we may revisit this issue.
C. Published
Commenters generally supported the proposed definition of "published." Some in the research
community were more supportive of the first part of the definition (when "[r]esearch findings are
published in a peer-reviewed scientific or technical journal") rather than the second part (when "[a]
Federal agency publicly and officially cites the research findings in support of" an agency action).
However, those who support the provision in Public Law 105-277 argued that the second part is
necessary to ensure that the public can have access to the data that underlies Federally-funded research
findings on which agencies rely to support their actions. We continue to believe that both parts of the
definition are important to successful implementation of a data access provision that furthers the interest
of the public in obtaining information while ensuring that research can continue to be conducted in
accordance with the traditional scientific process. The only change that has been made to the definition
of "published" is to make conforming revisions to reflect the previously-discussed change from "used by
the Federal Government in developing a regulation" to "used by the Federal Government in developing
an agency action that has the force and effect of law."
D. Cost Reimbursement
Many commenters, particularly recipients of Federally-funded research awards, expressed concern
about the reimbursement mechanisms available under the proposed revision. In cases where the award's
funding period expires before a request is made, neither the direct nor indirect methods of charging
would allow reimbursement. Comments generally focused on the need for a separate agreement
between the Federal awarding agency and the recipient, which would cover the full incremental cost of
responding to the request. The process for such an agreement could work as follows:
When a request is received by the Federal awarding agency, it would pass the request on to the
recipient for an assessment of the costs of complying. Once the recipient has estimated an amount, the
Federal awarding agency can apply its existing standards for requesting appropriate prepayments from
the requester, as with the FOIA fee. When the recipient transmits the responsive research data to the
agency, it should include an accounting for the associated costs. The Federal awarding agency will then
seek reimbursement from the FOIA requester and reimburse the recipient.
If we determine that this mechanism is not adequate, we will consider revising OMB Circular A-21,
"Cost Principles for Educational Institutions," as necessary to ensure that recipient institutions are
reimbursed for the incremental costs of complying with the provision contained in Public Law 105-277.
E. Record Retention
Some commenters questioned whether the final revision would impose additional record retention
requirements on recipients. The final revision only affects Section .___36, which does not discuss
recordkeeping responsibilities. Section .___53, Retention and access requirements for records,
requires that "[f]inancial records, supporting documents, statistical records, and all other records
pertinent to an award shall be retained for a period of three years from the date of submission of the
final expenditure report." In addition, "[t]he Federal awarding agency...ha[s] the right of timely and
unrestricted access to any books, documents, papers, or other records of recipients that are pertinent to
the awards...The rights of access in this paragraph are not limited to the required retention period, but
shall last as long as records are retained." Therefore, if a recipient chooses to keep records longer than
three years, the recipient must make them available for review in response to requests from the Federal
awarding agency.
F. Effective Date
Many commenters sought clarification on the effective date for the final revision. As stated above, the
revised Circular is effective thirty days after it appears in the Federal Register. The revised Circular is
effective for awards issued after the effective date and those continuing awards which are renewed after
the effective date.
G. Projects Funded from Multiple Sources
Some commenters asked whether the final revision would apply in situations where research was funded
not only by the Federal Government but also by other entities. As noted in the proposed revision, the
legislative history to the provision contained in Public Law 105-277 indicates 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." 144 Cong. Rec. S12134 (October 9, 1998) (Statement of
Sen. Campbell). This statement is consistent with OMB's longstanding interpretation of the Circular
which holds that it is applicable to all recipients, regardless of whether they also receive non-Federal
funds.
H. Procurement Contracts
Some commenters asked whether the final revision would apply to research that is funded by a Federal
agency through a procurement contract. However, the Circular does not apply to procurement
contracts. Section .___2(e) of the Circular defines "award," and specifically excludes "contracts which
are required to be entered into and administered under procurement laws and regulations."
Issued in Washington, DC, September 30, 1999.
/s/ Jacob J. Lew Director
As directed by OMB's appropriation for FY 1999, contained in Public Law 105-277, OMB hereby
amends Section ___.36 of OMB Circular A-110 by revising paragraph (c), redesignating paragraph
(d) as paragraph (e), and adding a new paragraph (d) to read as follows:
___.36 Intangible property
* * * * *
(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.
(d) (1) In addition, in response to a Freedom of Information Act (FOIA) request for research data
relating to published research findings produced under an award that were used by the Federal
Government in developing an agency action that has the force and effect of law, the Federal awarding
agency shall request, and the recipient shall provide, within a reasonable time, the research 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 research 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 research
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)).
(2) The following definitions apply for purposes of paragraph (d) of this section:
(i) Research data is defined as the recorded factual material commonly accepted in the scientific
community as necessary to validate research findings, but not any of the following: preliminary analyses,
drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues.
This "recorded" material excludes physical objects (e.g., laboratory samples). Research data also do not
include:
(A) Trade secrets, commercial information, materials necessary to be held confidential by a researcher
until they are published, or similar information which is protected under law; and
(B) Personnel and medical information and similar information the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy, such as information that could be used to identify a
particular person in a research study.
(ii) Published is defined as either when:
(A) Research findings are published in a peer-reviewed scientific or technical journal; or
(B) A Federal agency publicly and officially cites the research findings in support of an agency action
that has the force and effect of law.
(iii) Used by the Federal Government in developing an agency action that has the force and
effect of law is defined as when an agency publicly and officially cites the research findings in support of
an agency action that has the force and effect of law.
