I.1.3 Key Provisions of Existing OMB Circular A-110

Some of the acrimony over the proposed revisions to Circular A-110 may stem from an underappreciation of what the Circular currently does -- that is, what framework the Circular had created before the revisions regarding public access under FOIA were statutorily mandated in 1998. Significantly, the Circular reserves to the federal government broad powers to "obtain, reproduce, publish, or otherwise use the data first produced under an award." OMB Circ. §___.36(c). Thus, the scope of the federal agencies' authority to collect and use data from federally funded researchers is not significantly affected by the new law. The government also has discretion to share the data so obtained with others for federal purposes. Id.

As currently effective, section ___.36 of Circular A-110 provides:

"___.36 Intangible property.

(a) The recipient may copyright any work that is subject to copyright and was developed, or for which ownership was purchased, under an award. The Federal awarding agency(ies) reserve a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so.

(b) Recipients are subject to applicable regulations governing patents and inventions, including government-wide regulations issued by the Department of Commerce at 37 CFR part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements."

(c) Unless waived by the Federal awarding agency, the Federal Government has the right to (1) and (2).

(1) Obtain, reproduce, publish, or otherwise use the data first produced under an award.

(2) Authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes.

(d) Title to intangible property and debt instruments acquired under an award or subaward vests upon acquisition in the recipient. The recipient shall use that property for the originally-authorized purpose, and the recipient shall not encumber the property without approval of the Federal awarding agency. When no longer needed for the originally authorized purpose, disposition of the intangible property shall occur in accordance with the provisions of paragraph____.34(g)."

OMB Circ. A-110, §___.36. (Emphasis added.)

The Circular applies only to "institutions of higher education, hospitals, and other non-profit organizations." It does not generally apply to government contractors, although contractors and subcontractors of recipients or subrecipients may be covered at the agency's discretion. The federal government itself and its research centers, while obligated to disclose records in their possession under existing FOIA law, are not covered under Circular A-110. In this regard, the Circular defines "recipient" to exclude:

government-owned contractor operated facilities or research centers providing continued support for mission-oriented, large-scale programs that are government-owned or controlled, or are designated as federally-funded research and development centers.

OMB Circ. A-110 § ___.2 (cc).