New Revision to OMB Data Availability Regulation
Yesterday, the Office of Management and Budget issued, for public comment, a new proposed version of regulations for the availability of federally-funded research data. Now is the time to let the Administration know your thoughts on this revision. OMB plans to publish a final version of the regulation on or before September 30, 1999. All additional comments MUST BE RECEIVED BY OMB BY SEPTEMBER 10, 1999. See below for information on submitting comments.
OMB received over 9,000 comments on the first proposed revision to Circular A-110 (See FYI #18 ). Approximately 55 percent of comments supported the proposed revision and 37 percent opposed it. After reviewing the feedback, OMB felt it necessary to develop clarifying definitions for some terms such as “research data,” and “published,” as intended under the regulation. According to OMB, it has “used its discretion” to attempt to “balance the need for public access to research data with protections of the research process. Specifically, OMB seeks to further the interest of the public in obtaining the information needed to validate Federally-funded research findings, ensure that research can continue to be conducted in accordance with the traditional scientific process, and implement a public-access process that will be workable in practice.” Additionally, OMB determined that the regulation cannot “readily and easily be implemented outside of the regulatory context,” and has replaced the original wording “used by the Federal Government in developing policy or rules” with the following: “used by the Federal Government in developing a regulation.”
OMB proposes to amend Section __________.36 of OMB Circular A-110 by revising paragraph (c), redesignating paragraph (d) as paragraph (e), and adding new paragraph (d) to read as follows:
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(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).
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Please direct comments to F. James Charney, Policy Analyst, Office of Management and Budget, Room 6025, New Executive Office Building, Washington, DC 20503, or by email (as message text but not an attachment) to grants@omb.eop.gov . The texts of both versions of the proposed revision, as well as background and supplementary information, can be found on OMB’s Home Page under “Grants Management” at http://www.whitehouse.gov/OMB/fedreg/2ndnotice-a110.html .
