Comments/Opinions/Suggestions (FYI #146 - Final A-110 Revision)

Date: Tue, 12 Oct 1999 15:24:56 -0400 (EDT)
From: AIP listserver <fyi@aip.org>
Subject: FYI #146 - Final A-110 Revision

FYI
The American Institute of Physics Bulletin of Science Policy
News
Number 146:October 12, 1999

Final A-110 Revision on Access to Research Data

The Office of Management and Budget issued the Final Revision of the Circular A-110 administrative requirements to comply with a law "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." This legislation came about through the efforts of Senator Richard Shelby (R-Alabama), with the support of Senate Majority Leader Trent Lott (R-Mississippi).

The October 8 issue of the Federal Register has a thorough discussion of the revisions in this regulation. OMB was charged with the revision of the circular, and received over 12,000 comments since it first proposed changes in early February. This was an extraordinary response to an OMB regulation. The revision goes into effect on November 8, 1999. It "applies to grants and other financial assistance provided to institutions of higher education, hospitals, and non-profit institutions, from all Federal agencies." It "does not apply to procurement contracts."

The following are selections from the "Supplementary Information" contained in the October Federal Register notice. They provide an overview of OMB's thinking on what has been a very controversial proposal. For the entire citation, see Management and Budget Office/Notices at http://www.access.gpo.gov/su_docs/fedreg/a991008c.html (about 2/3 of the way down the table of contents.)

"In directing OMB to revise the Circular, Congress entrusted OMB with the authority to resolve statutory ambiguities, the obligation to address implementation issues the [Shelby] 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."

"OMB recognizes the importance of ensuring that the revised Circular does not interfere with the traditional scientific process..... 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.... 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."

OMB then reviews the responses received to the two previous notices, stating: "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...requesting public comment on clarifications to the proposed revision...."

"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."

OMB addresses several other issues in this notice. It explains that the regulations were issued in time to meet the statutory requirements. It notes that future revisions may be made as warranted. OMB "decided not to extend the scope of the revisions to agency guidance documents and other issuances that do not have the force and effect of law." They also "decided not to limit the scope of the revision to agency actions that have an impact in excess of $100 million." The regulation "is applicable to all recipients, regardless of whether they also receive non-Federal funds" for the research performed.

The final regulation is as follows:

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.