The Labor Department’s 30-day public comment period on its risk assessment proposed rule closed 14 days ago.  There are 117 items appearing in the on-line docket at Regulations.gov, including my own 9-page letter of opposition.  What I didn’t expect to see was notice saying that one of my attachments was not being posted in the electronic docket because it is “subject to copyright protections” and it “cannot be reproduced.”

I guess Asst. Secretary of Labor Sequeira needs a little lesson about “Open Access.”  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.”   In big bold letters on the first page it says “Open Access,“ and 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 site 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 movement which

“encourages the unrestricted sharing of research results with everyone, everywhere, for the advancement and enjoyment of science and society.  …The Open Access philosophy was firmly articulated in 2002, when the Budapest Open Access Initiative was introduced.  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.” 

After Mr. Sequiera quickly reads-up on Open Access publishing and realizes that it is A-OK to post our article in the electronic docket, he might also want to revisit his decision to exclude other documents from the electronic docket.  NIOSH, for example, submitted a brief statement specifically addressing the proposals call for “industry-by-industry evidence relating to working life exposures.”  NIOSH included with its statement several supporting articles which were published in the journal Risk Analysis and the Scandanavian Journal of Work, Environment & Health, and were written in-full or in-part by federal employees.  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.  The document is subject to copyright protections and therefore is not being made available by DOL in the electronic docket.  (full text here)

The problem is this: Copyright protection does not extend to work of the U.S. Government.  If the work was produced or prepared by an federal employee as part of that person’s official duties, the work cannot be “owned” by the journal—it belongs to the public.  

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 consistently by NIOSH.  It submitted these NIOSH-PRODUCED papers to illustrate this fact.  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.   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.  The journal Risk Analysis (where two of the above mentioned NIOSH papers were published) even has a handy-dandy FAQ’s 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 ‘US Government work’, and is in the public domain in the United States.

 So, why do I really care that Asst. Secretary Sequeira doesn’t understand Open Access or copyright issues? 

It goes back to the key issue of WHY the Secretary of Labor’s Office of Policy is writing a regulation on MSHA and OSHA risk assessment practices.  Mr. Sequiera does not have rulemaking authority, but since he’s claiming it, at least he should have sought some advice from knowledgeable career employees at OSHA or MSHA to make sure he knew how to manage a rulemaking docket.   

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.  I understand that at least one individual or organization submitted this work to the docket, but it doesn’t appear on the Regulations.gov site. 

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.  Is it copyright protected?

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P.S. Today, October 14, 2008 is Open Access Day.