Open Access News

News from the open access movement

Saturday, November 03, 2007

Update on the OA mandate at NIH

(1) On Thursday, the House-Senate conference committee finished the job of reconciling the House and Senate versions of the LHHS appropriations bill (containing the OA mandate at the NIH).  The committee also decided to yoke the resulting bill together with a second appropriations bill on Veterans Affairs.  President Bush had threatened to veto the former, but expressed support for the latter.  The idea, clearly, is to make it harder for him to veto the combined package.  Earlier in the process, Bush threatened to veto a three-bill combo, but has not indicated his thoughts on this two-bill combo.

(2) An authoritative source tells me that the NIH provision in the final LHHS bill survived the conference committee intact.  But I haven't been able to confirm this yet from a public source.  If true, this means the OA mandate has cleared another major hurdle.  The last hurdle remaining is the possibility of a Presidential veto. 

For reasons not to despair in case Bush does veto the bill, and for some of our post-veto strategies, see my article in yesterday's issue of SOAN.

(3) When Sen. James Inhofe (R-OK) withdrew his two anti-OA amendments to the LHHS appropriations bill, he and Sen Michael Enzi (R-WY) filed a "colloquy" or speech to be added to the legislative history.  Its primary purpose was to influence the conference committee to strike or weaken the NIH provision before sending the bill to the president.  Here's the text of the colloquy (from the Congressional Record for October 23, 2007), complete but for the opening and closing courtesies:

Mr. ENZI. ...Mr. President, I am concerned about a provision in the fiscal year 2008 LHHS appropriations bill that would change the National Institutes of Health, NIH, public access policy to a mandate requiring that private sector commercial and nonprofit journal articles be made freely available for worldwide access on an online NIH Web site.

As ranking member of the Health, Education, Labor and Pensions, HELP, Committee, I am concerned that this matter has not been reviewed by our committee, the committee of primary jurisdiction over the NIH. This issue has been handled through the appropriations process, and I believe that the HELP Committee should study the issue and determine the best and most appropriate manner to implement and improve the current voluntary policy. In the Statement of Administration Policy, SAP, issued last week, the administration echoed this sentiment and called on Congress to review the policy and balance the need for public access against the impact it could have on scientific publishing, peer review and intellectual property. The private sector invests hundreds of millions of dollars in the peer review process which vets scientific research, and I believe that a change in the NIH public access policy could undermine that investment.

I would respectfully ask when this bill is conferenced that the section of the Labor-HHS appropriations bill mandating the NIH public access policy be modified so it may receive further study by the committees of jurisdiction to ensure that it achieves its goals without unintended negative consequences.

Mr. INHOFE. I would like to add my voice to Senator ENZI’s concern regarding the NIH public access mandate that would force private sector publishers to make their articles freely available on an NIH Web site. I am concerned that this proposal will harm the journal businesses, hurt scientific communication, and impose a severe regulatory taking on commercial and nonprofit publishers. I also believe that this change in policy could have a negative impact on the intellectual property protections for scientific journal articles. I believe this issue is different from making underlying scientific data available. I believe that federally funded scientific raw data should be available for other researchers to review. I would also ask that Senators HARKIN and SPECTER agree to work with me to revise this NIH provision when this bill is conferenced.

Mr. HARKIN. I remain committed to retaining the provision in conference as it is written in the Senate and House Labor-HHS appropriations bills. I will be happy to work with the Senators from Wyoming and Oklahoma to ensure that the policy is implemented as smoothly as possible for the NIH, researchers, and scientific publishers.

Mr. SPECTER. I thank the Senators from Wyoming and Oklahoma for their concerns about the NIH public access policy, which I share. I will work with the chairman to closely monitor the policy’s implementation....

The conference committee decided to disregard the Enzi and Inhofe reservations.