The Labor Department’sÂ 30-day public comment period on itsÂ risk assessment proposed rule closed 14 days ago.Â There areÂ 117 items appearing in the on-lineÂ docket atÂ Regulations.gov, includingÂ my ownÂ 9-page letter of opposition.Â What I didn’t expect to see was notice saying that one of my attachmentsÂ was not being posted in theÂ electronic docket because it is “subject to copyright protections” and it “cannot beÂ reproduced.”
I guess Asst. Secretary of Labor Sequeira needs a little lesson about “Open Access.”Â The document that I submitted (and of which I am a co-author) was an article published in a journal called “Environmental Health: A Global Access Science Source.”Â Â Â InÂ big bold letters on the first page it says “Open Access,“Â andÂ it reads:
“This is an Open Access article…which permits unrestricted use, distribution and reproduction in any manner…”
Just in case Mr. Sequiera wasn’t sure about this new-age Open Access stuff, he could have visited the BioMed Central siteÂ which makes it even more plain:
“Anyone is free to:
copy, distribute, and display the work;
make derivative works;
make commercial use of the work.”
And he could read more about the international Open Access movementÂ which
“encouragesÂ the unrestricted sharing of research results with everyone, everywhere, for the advancement and enjoyment of science and society.Â …The Open Access philosophy was firmly articulated in 2002, when the Budapest Open Access InitiativeÂ was introduced.Â It quickly took root in the scientific and medical communities because it offered an alternative route to research literature that was frequently closed off behind costly subscription barriers.”
A great example of the Open Access movement is the Public Library of Science (PLOS), a “nonprofit organization of scientists and physicians committed to making the world’s scientific and medical literature a freely available public resource.”Â
After Mr. Sequiera quickly reads-up on Open Access publishing andÂ realizes that it is A-OK to post our articleÂ in the electronic docket,Â he might also want toÂ revisit his decision to exclude other documents from theÂ electronic docket.Â NIOSH, for example,Â submitted a brief statement specifically addressingÂ the proposals call for “industry-by-industry evidence relating to working life exposures.”Â NIOSH included with its statement several supporting articlesÂ which were published in the journal Risk Analysis and the Scandanavian Journal of Work, Environment &Â Health, and were written in-full or in-part by federal employees.Â DOL is not including these journal articles in the electronic docket, and like the situation with my article, has inserted a placeholder that says:
“The above reference document was submitted to the docket as an attachment to comments from NIOSH.Â The document is subject to copyright protections and therefore is not being made available by DOL in the electronic docket.Â (full text here)
The problem is this: Copyright protection does not extend to work of the U.S. Government.Â If the work wasÂ produced or prepared by anÂ federal employeeÂ as part of that person’s official duties, the work cannot beÂ “owned” by the journal—it belongs toÂ theÂ public.Â Â
I suspect the reason that NIOSH submitted these documents to DOL was to make the case that the 45-year working lifetime default value has been used consistentlyÂ by NIOSH.Â ItÂ submitted these NIOSH-PRODUCED papers to illustrate this fact.Â Â I think a few NIOSH scientists will chuckle when they hear that the Asst. Secretary of Labor for Policy thinks their work is copyright protected.Â Â I guess he doesn’t realize that when NIOSH, or EPA, or other government scientists submit their work to journals for publication, the journal editors already know that the work is not protected by copyright laws.Â The journal Risk Analysis (where two of theÂ above mentionedÂ NIOSH papers were published) even has a handy-dandy FAQ’sÂ for authors, with this item:
A contribution prepared by a US federal government employee as part of the employee’s official duties, or which is an official US government publication, is called a âUS Government workâ, and is in the public domain in the United States.
Â So, why do I really care that Asst. Secretary Sequeira doesn’t understand Open Access or copyright issues?Â
It goes back toÂ the key issue of WHY theÂ Secretary of Labor’s Office of Policy is writing a regulationÂ on MSHA andÂ OSHA risk assessment practices.Â Mr. Sequiera does notÂ have rulemaking authority,Â but since he’s claiming it, at least he should have sought someÂ advice from knowledgeable career employeesÂ atÂ OSHA or MSHA to make sure he knew how to manage aÂ rulemaking docket.Â Â Â
By the way, a three-part report prepared for Secretary of Labor’s Office of Policy entitled “Review and Analysis of The Department of Labor’s Risk Assessment Practices and Risk Management in Rulemaking and Guidance,” by the firm CONSAD (dated March 2008) is also not posted in DOL’s electronic docket.Â Â I understand that at least oneÂ individual or organization submitted this work to the docket, but it doesn’tÂ appear on the Regulations.gov site.Â
Perhaps Mr. Sequiera can type up a little placeholder for this submission and let us know why it is being withheld from the electronic docket.Â Is it copyright protected?
P.S. Today, October 14, 2008Â is Open Access Day.