From: "Hansen, Dave" <[log in to unmask]>
Date: Wed, 25 Apr 2012 17:40:58 +0000

Thanks, everyone, for all the helpful responses.

From the explanations you all provided, I gather that (as one might
expect) the NIH has a policy that it says it will enforce, and there
are some controls that provide for withholding of future funding,
because citations to PMC for NIH funded research are required in
applications.

In terms of actual compliance, we know that some people just aren't
doing it. Phil Davis at Scholarly Kitchen has a post about some recent
papers that looked at compliance rates:
http://scholarlykitchen.sspnet.org/2012/02/21/reporting-of-nih-sponsored-trials/

So, the remaining question is, does the NIH enforce their own rules?
Is funding actually withheld, delayed, etc., because of noncompliance?

If I find anything about actual enforcement actions (e.g., instances
where NIH withheld funding) I will let you all know.

Thanks,
Dave

> -----Original Message-----
> From: LibLicense-L Discussion Forum [mailto:[log in to unmask]] On
> Behalf Of LIBLICENSE
> Sent: Tuesday, April 24, 2012 6:53 PM
> To: [log in to unmask]
> Subject: Re: OA and NIH public access compliance and enforcement?
>
> From: Ivy Anderson <[log in to unmask]>
> Date: Tue, 24 Apr 2012 02:45:18 +0000
>
> Dave,
>
> My understanding is that compliance is largely effected via NIH policies posted
> here:
>
> http://publicaccess.nih.gov/   and here
>
> http://publicaccess.nih.gov/citation_methods.htm
>
> "Anyone submitting an application, proposal or report to the NIH must include
> the PMC reference number (PMCID) when citing applicable papers that they
> author or that arise from their NIH-funded research."
>
> In other words, a major incentive for compliance is that evidence of compliance
> may affect future funding from NIH.  I don't know how strictly this requirement
> is enforced, if that's your question - others on this list may know more about
> that.  The Public Access FAQ, posted at http://publicaccess.nih.gov/FAQ.htm,
> states:
>
> 7.  Will compliance with the NIH Public Access Policy affect the outcome of the
> application review?
> Compliance with the NIH Public Access Policy is not a factor in the scientific and
> technical merit evaluation of grant applications.
> Non-compliance will be addressed administratively, and may delay or prevent
> awarding of funds.
>
> And further on,
>
> 12.  What are some of the actions NIH may take when investigators and
> institutions fail to take steps to ensure compliance with the NIH Public Access
> Policy?
> A grantee's failure to comply with the terms and conditions of award may cause
> NIH to take one or more enforcement actions, depending on the severity and
> duration of the non-compliance.  NIH will undertake any such action in
> accordance with applicable statutes, regulations, and policies.  NIH generally will
> afford the grantee an opportunity to correct the deficiencies before taking
> enforcement action unless public health or welfare concerns require immediate
> action.  However, even if a grantee is taking corrective action, NIH may take
> proactive action to protect the Federal government's interests, including placing
> special conditions on awards or precluding the grantee from obtaining future
> awards for a specified period, or may take action designed to prevent future
> non-compliance, such as closer monitoring.
> See Enforcement Actions in the NIH Grants Policy Statement (11/03):
> http://grants.nih.gov/grants/policy/nihgps_2003/NIHGPS_Part8.htm#_Toc546
> 00145
>
> best
> - Ivy
>
> Ivy Anderson
> Director of Collections
> California Digital Library
> University of California, Office of the President [log in to unmask]
> http://cdlib.org
>
> -----Original Message-----
> From: "Hansen, Dave" <[log in to unmask]>
> Date: Mon, 23 Apr 2012 21:28:06 +0000
>
> Does anyone on this list have an idea of how the NIH enforces its public access
> policy? I recently had a conversation with someone who has viewed several NIH
> non-compliance letters. She expressed some consternation that, while letters
> sometimes go out about non-compliance, there is no real force behind them and
> nothing that effectively compels compliance. I couldn't find any more info from
> the NIH itself.
>
> Does anyone have any idea how prevalent non-compliance is and how
> frequently NIH takes actions to enforce the policy, and for those library lawyers
> that I know lurk around on this list, who (if anyone) would be able to contest
> non-enforcement by the NIH?*
>
>
> *I'm not trying to pick a fight. I'd just like to know who has the right to do such a
> thing.
>
> -----
>
> David R. Hansen
> Digital Library Fellow
> Samuelson Law, Technology & Public Policy Clinic UC Berkeley School of Law
> [log in to unmask]