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OMB Issues Final Rule on Circular A-110

On October 8, 1999, OMB issued its final rule implementing the Data Access law (64 Fed. Reg. 54926). The Federal Register announcement describes the various issues raised in the 3,000 additional comments submitted pursuant to OMB's second call for public comment in the Federal Register on August 11, 1999. In the final rule, OMB discusses both the reaction to its proposed clarifying changes and the reasons it settled on the provisions contained in the final rule. OMB left the door open for future revisions to the Circular as OMB and the agencies develop experience with the new provisions, noting that OMB tries to review each of its Circulars.

The revised Circular A-110 becomes effective on November 8, 1999. The key changes contained in the final rule, include the following:

(1) Retroactivity/Prospectivity of the Data Access Rule

In the final rule, OMB addressed the previously unanswered question concerning the rule's prospective or retroactive effect. The final rule holds that the revised Circular will have prospective effect, stating that the Data Access rule will impact, "... awards issued after the effective date and those continuing awards which are renewed after the effective date."

(2) Scope of coverage.

OMB changed the scope of the Data Access provision from "data ... used ... in developing a regulation," as contained in the August 11th proposal, to "... in developing an agency action that has the force and effect of law." OMB also dropped the idea of limiting the scope of the provision to such agency actions with an impact of $100 million or more. OMB specifically stated that the revision does not apply to agency guidance documents or similar measures without the force of law.

However, the final revision notice reiterates that the Data Access rule is applicable to all federally funded research meeting the above standard, regardless of whether non-federal funds are also used to fund the research.

(3) Treatment of Intellectual Property

OMB removed language excluding materials "which may be copyrighted" from its definition of "research data." Critics had feared that this would greatly broaden the amount of data which could be shielded from release. However, OMB said that it did not intend to expand intellectual property protections but to instead reaffirm existing protections. Thus, OMB substituted the phrase "similar information which is protected under law" in its final revision.

(4) Cost Reimbursement

OMB laid out an example of how a cost reimbursement mechanism might work, stating:

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.

OMB noted that if such mechanism is found to be inadequate, it would consider revision to Circular A-21, "Cost Principles for Educational Institutions," to ensure that grantee institutions receive the proper reimbursement for complying with P.L. 105-277.

(5) Application of FOIA Exemptions

OMB reaffirmed that individual agencies -- not the researchers - will determine whether FOIA exemptions apply to data under the Data Access rule. Researchers are to make all relevant data available to the agency pursuant to a FOIA request, and then the agency will determine what, if any, information should be withheld. OMB reiterated that agencies may ask for additional information from the grantees if they believe that the data submission is not complete.

(6) "Reasonable Time" for FOIA Response

Despite concerns regarding delays in grantee and agency responses to FOIA requests under the Data Access provision, OMB decided to retain the "reasonable time" standard. However, OMB said that further clarification may be possible on this point as the agencies gain further experience with the provision.

(7) Record Retention

OMB reiterated that record retention requirements by grantees remain unchanged by the Data Access rule. Grantees must keep data for three years after submission of a final expenditure report to the awarding agency. However, if grantees choose to keep data longer, the awarding agency (and FOIA requesters) can still gain access to such data.

CRE encourages individuals to submit their comments on the OMB final Data Access rule to CRE for posting on the CRE Interactive Public Docket.