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Interactive Public Docket

Data Access

CRE Analysis

4. Will the new Data Access law be applied retroactively?

Comment by OMB Watch

CRE Response:

CRE favors retroactive application of the revisions. Critical science-based regulatory issues are now being decided, and CRE is aware of several organizations that have attempted to obtain existing data upon which the government currently is basing, or contemplating revisions to, federal policy. Retroactive application is consistent with the statutory language which states that "all data produced under an award" shall be made publically available through FOIA, without limitation as to when the data were produced.

In its April comments CRE proposed that, in the event OMB determines that retroactive application of the new data access policy would create unworkable procedural or other problems, OMB should direct that, on an interim basis only, the rule will be applied only to future awards. OMB's right to issue new revisions to Circular A-110 will not expire following the reissuance of the Circular on an interim basis, and the agency should solicit -- at some future point -- notice and request for comment on how the policy may be made applicable to existing data.

OMB's August 11, 1999 reproposal did not address retroactive application of the rule or seek comment on this issue. CRE continues to believe that, consistent with the statute, the rule should apply to policies or rules (or regulations) already proposed or adopted.