110th Congress

Appropriations for the National Institutes of Health, Fiscal Year 2008

H.R. 3043, S. 1710, H.R. 2764; P.L. 110-92; P.L. 110-116; P.L. 110-137; P.L. 110 149; P.L. 110-161

Background

Congress combined 11 unfinished spending bills for fiscal year (FY) 2008, including the Labor, Health and Human Services (HHS), Education and Related Agencies measure, into a $555-billion omnibus bill and cleared it just before the close of the first session of the 110th Congress. The President signed the Consolidated Appropriations Act, 2008, on December 26, 2007, as P.L. 110 161. Congress had passed four continuing resolutions to keep the Government funded past the start of the new fiscal year on October 1 while lawmakers and the White House tried to work out their differences, and passage of the omnibus spending bill ended the year-long battle over spending priorities. The Democrats, currently the majority party in the House and Senate, began the year planning to add funds for programs that they argued had been neglected during the first 6 years of the Bush administration in favor of boosts to defense and homeland security programs. The President, however, threatened to veto appropriations bills that exceeded his bottom-line total. He followed through on that threat when he vetoed the Labor, HHS, Education and Related Agencies appropriations measure on November 13, and the House failed to override the veto on November 16.

Subsequent legislative action was as follows:

• The House passed H.R. 2764 (the State, Foreign Operations, and Related Programs appropriations measure and the vehicle for the omnibus) on December 17 by adopting an amendment, 253 to 154, adding 10 other regular spending bills to the measure and by adopting another amendment, 206 to 201, adding money for the war in Afghanistan.
• The Senate passed H.R. 2764 on December 18 by adopting an amendment, 70 to 25, that added money for the wars in Iraq and Afghanistan and by voting, 76 to 17, to add the other bills.
• The House cleared H.R. 2764, by a vote of 272 to 142, on December 19 by agreeing to the Senate war funding amendment.
• President Bush signed the bill on December 26 as P.L. 110-161.

CONTINUING RESOLUTIONS

In the last week of September, it became clear that there would be no enacted appropriations bills for FY 2008 by October 1. As a result, Congress passed H.J. Res. 52, a joint resolution making continuing appropriations for FY 2008; this was the first continuing resolution (CR), which kept the Government running at current funding levels through November 16. Under the measure, spending through November 16 funded most programs, including the National Institutes of Health (NIH), under the same terms and conditions as the FY 2007 appropriation. Subsequent CRs were enacted following the veto of the FY 2008 bill, under the same terms and conditions for NIH as the first CR.

1) Continuing Resolution (through 11/16/07)   P.L. 110-92, 9/29/07

2) Continuing Resolution (through 12/14/07)   P.L. 110-116, 11/13/07 (Division B of the U.S. Department of Defense bill)

3) Continuing Resolution (through 12/21/07)   P.L. 110-137, 12/14/07

4) Continuing Resolution (through 12/31/07)   P.L. 110-149, 12/22/07

Provisions of the Legislation/Impact on NIH

MAJOR PROVISIONS OF THE CONSOLIDATED APPROPRIATIONS ACT, 2008

Division G of this law provides FY 2008 appropriations for Labor, HHS, Education. For NIH, the Act provides $29.456 billion (including $150 million for Type I diabetes) or $29.3 billion appropriated to NIH through the Labor, HHS, Education appropriations portion of the Omnibus bill. This reflects the 1.747-percent across-the-board cut to most accounts included in the law, including NIH. The Act includes a transfer of $295 million within NIH for the Global Fund to Fight AIDS, Tuberculosis and Malaria (an increase in the transfer amount of $196 million above FY 2007) as well as $111 million for the National Children’s Study; $504.420 million for the Common Fund; $96,030,090 for research on chemical, radiological, and nuclear countermeasures; $10 million for the Director’s Discretionary Fund; and $25 million for the flexible research authority. Also included in this Act (in Division F, the Interior appropriations bill) is $77.546 million (after the across-the-board reduction) for the National Institute of Environmental Health Sciences (NIEHS) to carry out section 311(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, and section 126(g) of the Superfund Amendments and Reauthorization Act of 1986. In addition, $1 million is to be transferred, not later than 30 days after enactment of the Act, from the Office of the Secretary to the National Institute of Mental Health (NIMH) to administer the Interagency Autism Coordinating Committee.

The Act contains a new general provision for NIH regarding public access, which mandates that investigators funded by NIH submit (or have submitted for them) to the National Library of Medicine’s (NLM) PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication in a manner consistent with copyright law. (A discussion of further provisions is included in appendix 1.)

GOVERNMENT-WIDE PROVISIONS

Government-wide provisions are also included in the Act (in Division D, the Financial Services and General Government appropriations bill). Title VII includes a 3.5-percent cost-of-living increase for Federal employees and contains provisions that would impact competitive sourcing, also known as A-76. Another provision requires that any new funding request for new or ongoing E-Government initiatives be included in future budget justifications.

Legislative History

OTHER ACTION ACCOMPANYING FY 2007 BILLS AND THE PRESIDENT’S FY 2008 BUDGET

FY 2007 JOINT FUNDING RESOLUTION

The President’s FY 2008 request did not take into account the FY 2007 funding provided in the Joint Funding Resolution, which was enacted after the President’s Budget was released. The FY 2007 Joint Funding Resolution provided $28.899 billion for NIH for FY 2007, a $687 million increase over FY 2006 and a $278-million increase over the FY 2008 President’s budget request.

On February 5, 2007, the President released the FY 2008 budget for NIH, proposed at $28.858 million at the total program level and with total budget authority in the FY 2008 request at $28.850 million; both levels were $232 million over the FY 2007 estimate and included $78 million for the Superfund Research Program. The NIH program and total budget authority levels included $150 million for the Type I Diabetes Initiative. The budget request also included $300 million for the Global Fund to Fight AIDS, Tuberculosis and Malaria in FY 2008, an increase of $200 million over the $100 million in the National Institute of Allergy and Infectious Diseases (NIAID) base, all to be transferred. The FY 2008 budget would continue support for the Genes, Environment and Health Initiative. The President’s Budget would also support 10,188 competing research project grants (RPGs), for $3.6 billion, an increase of 566 competing RPGs over the FY 2007 estimate and 1,060 more than the 2006 actual level. No inflationary increases were provided for direct, recurring costs in noncompeting RPGs in the FY 2008 President’s Budget, but where NIH has committed to a programmatic increase in an award, such increases would be provided. The average cost of competing RPGs remained at the FY 2007 estimate level. The FY 2008 President’s Budget level would maintain stipends at the FY 2007 estimate levels and would provide no increases for other components of the Ruth L. Kirschstein National Research Service Award (Kirschstein-NRSA) training programs.

FY 2008 FUNDING VETO

On November 13, the President vetoed H.R. 3043, the FY 2008 Labor, HHS, Education and Related Agencies appropriations bill. The conference agreement on this bill included $30 billion for NIH in FY 2008, which would have been an increase of $1.1 billion (3.8 percent) over the FY 2007 level and an additional $100 million above what the Senate had proposed. The Senate bill had proposed $29.9 billion, while the House bill had proposed $29.65 billion, a $750-million increase over the FY 2007 enacted level for NIH of $28.899 billion. The final conference number also included the $300-million transfer for the Global Fund to Fight AIDS, Tuberculosis and Malaria as proposed by both the House and Senate, so the adjusted number for NIH would have been $29.7 billion, a net increase of $899 million (3.1 percent).

CHANGES IN THE 110TH CONGRESS

The 110th Congress marked the beginning of the first Democratic chairmanship of the Appropriations committees in both the House and Senate in more than a decade (with the exception of a year-and-a-half interval in the Senate). Representative David R. Obey (D WI) took over the chair of both the House Committee on Appropriations and the Appropriations Subcommittee on Labor, HHS, Education, and Related Agencies, with Representative James T. Walsh (R-NY) as the ranking minority Member. Representative Ralph Regula (R-OH), the previous chair, remains on the Subcommittee as a Member. Six new Members were added to the Subcommittee (five Democrats and one Republican): Representatives Barbara Lee (D-CA), Tom Udall (D-NM), Michael M. Honda (D-CA), Betty McCollum (D-MN), Tim Ryan (D-OH), and Dennis Rehberg (R-MT). Departing the Subcommittee were Representatives Steny H. Hoyer (D-MD), to assume the position of House Majority Leader; Ernest Istook, Jr. (R-OK); Roger Wicker (R-MS); Anne M. Northup (R-KY); Kay Granger (R-TX); and Don Sherwood (R-PA). In the Senate, Senator Tom Harkin (D-IA) took over the chair of the Senate Appropriations Subcommittee on Labor, HHS, Education and Related Agencies from Senator Arlen Specter (R-PA), “seamlessly passing the gavel” as they have done for the past decade. Senator Frank R. Lautenberg (D-NJ) was the only new addition to the Senate Subcommittee.

HEARINGS

Ten appropriations hearings were held on the FY 2008 NIH budget, three in the House and seven in the Senate. In the House, as under Representative Regula’s chairmanship, there was one theme hearing (“Substance Abuse and Mental Health”) as well as the NIH overview hearing. The House Appropriations Subcommittee on Interior, Environment, and Related Agencies (Representative Norman D. Dicks [D-WA], Chair) held a hearing on the NIEHS Superfund program, which is funded by this Subcommittee. This was the first time in many years that there has been an NIEHS official appearance before this Subcommittee. Senator Harkin held both an NIH overview hearing as well as a series of six thematic hearings over several months, which allowed each of the NIH Institutes and Centers (ICs) to testify before the Senate Appropriations Subcommittee on Labor, HHS, Education and Related Agencies. This also marked the first time in more than a decade that such hearings have been held.

APPENDIX 1

CONSOLIDATED APPROPRIATIONS ACT, 2008

New provisions included in the General Provisions of P.L. 110-161 affecting NIH are as follows:

• Public Access: The Act mandates that investigators funded by NIH submit (or have submitted for them) to NLM’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication in a manner consistent with copyright law. (Section 218)
• Nonrecurring Expenses Fund: Unobligated balances of expired discretionary funds appropriated for this or any succeeding fiscal year from the General Fund of the Treasury to the U.S. Department of Health and Human Services (DHHS) by this or any other Act may be transferred into this fund, available until expended and available for capital acquisition necessary for the operation of the Department, including facilities infrastructure and information technology infrastructure. (Section 223)
• Internet Web Sites: Not later than 30 days after the date of enactment of this Act, the departments, agencies, and commissions funded under this Act must establish and maintain on the home pages of their Internet Web sites a direct link to the Internet Web sites of their Office of the Inspector General and a mechanism on the Office of the Inspector General Web sites by which individuals may anonymously report cases of waste, fraud, or abuse with respect to those departments, agencies, and commissions. (Section 522)
• Tax and Grantees/Contractors: None of the funds appropriated by this Act may be used to enter into a contract in an amount greater than $5 million or to award a grant in excess of such amount unless the prospective contractor or grantee certifies that the contractor or grantee has filed all Federal tax returns required during the 3 years preceding the certification and has not been convicted of a criminal offense under the Internal Revenue Code of 1986. (Section 523)
• Office of the Secretary: A total of $1 million shall be transferred, not later than 30 days after enactment of this Act, to NIMH to administer the Interagency Autism Coordinating Committee.
• Across-the-Board Rescission: An amount equal to 1.747 percent of the FY 2008 budget authority is rescinded. (Section 528)

Continuing General Provisions of the Act affecting NIH specifically are as follows:

• Office of the Secretary: “Provided further, That specific information requests from the chairmen and ranking members of the Subcommittees on Labor, Health and Human Services, and Education, and Related Agencies, on scientific research or any other matter, shall be transmitted to the Committees on Appropriations in a prompt, professional manner and within the time frame specified in the request: Provided further, That scientific information, including such information provided in congressional testimony, requested by the Committees on Appropriations and prepared by government researchers and scientists shall be transmitted to the Committees on Appropriations, uncensored and without delay.”
• Extramural Salary: Limitation on extramural salary support to Executive Level I (Section 203)
• AIDS Transfer: Continues the NIH AIDS transfer authorities (Sections 208 and 209)
• FRA: Continuation of the flexible research authority (Section 215)
• A&R: A total of $35 million of the funds appropriated to NIH ICs may be used for alteration, repair, or improvement of facilities as necessary for the proper and efficient conduct of the activities, not to exceed $2.5 million per project. (Section 220)
• HRSA and AHRQ: Authority for the transfer of funds from NIH to the Health Resources and Services Administration (HRSA) and the Agency for Healthcare Research and Quality (AHRQ) for research training. Continues the authority, previously in the Public Health Service Act, for NIH to take 1 percent of the funds it annually allocates for Kirschstein-NRSA and transfer the funds to HRSA and AHRQ for training in primary care and health services research. (Section 221)
• Antilobbying Provision: No funds in this appropriations bill may be used for publicity or propaganda purposes other than for normal and recognized executive-legislative relationships, and no funds in the bill can be used to pay the salary or expenses of any grant or contract recipient, or agent acting for such a recipient, related to any activity designed to influence legislation or appropriations pending before Congress or any State legislature.
• Needle Exchange: No funds appropriated in this Act shall be used to carry out any program of distributing sterile needles or syringes for the hypodermic injection of any illegal drug. (Section 505)
• Press Releases: When issuing statements, press releases, requests for proposals, bid solicitations, and other documents describing projects funded with Federal money, all grantees shall clearly state the percentage of the total costs of the program or project that will be financed with Federal money and the dollar amount of Federal funds. (Section 506)
• Human Embryo Research Prohibition: Continuation of the prohibition of Federal research funds to support any research that would create a human embryo for research purposes or for which such embryo would be destroyed, discarded, or subjected to risk of injury or death greater than allowable for fetuses in utero under 42 U.S.C. 289g(b). (Section 509)
• Controlled Substances: None of the funds made available in this Act may be used for any activity that promotes the legalization of any drug or other substance included in schedule I of the schedules of controlled substances unless there is significant medical evidence of a therapeutic advantage to the use of such drug or other substance or that federally sponsored clinical trials are being conducted to determine therapeutic advantage. (Section 510)
• Politics and Science: Prospective appointees to a Federal scientific advisory committee cannot be required to disclose their political affiliation or voting history or the position that they hold with respect to political issues. Funds available in this Act may not be used to disseminate scientific information that is deliberately false or misleading. (Section 517)

APPENDIX 2

HOUSE ACTION—H.R. 3043 (Vetoed Measure)

On June 7, the House Appropriations Subcommittee on Labor, HHS, Education, and Related Agencies marked up and reported out H.R. 3043, which would have provided $151.5 billion after “cap adjustments” and offsets for the bill overall, almost 5 percent more than in FY 2007 and 7.5 percent more than requested. This measure was reported out by the full House Committee on Appropriations on July 11 and was passed by the House on July 19. The measure would have increased funding for NIH, with an increase of $750 million (2.6 percent) above the FY 2007 appropriation and $1,028,646,000 above the President’s budget request (which had not taken the funding levels contained in the FY 2007 Joint Resolution). According to the Committee report, this increase would have increased the number of new and competing research grants by approximately 545 over the previous year; lifted a 2-year freeze on the average cost of new research grants; raised the total number of grants to 39,003; and reversed the 2-year freeze in the inflationary adjustment of grants, with an average 2-percent increase for new grants. The bill would have also provided funding for three programs to support young investigators as well as a 2-percent average increase in research training stipends. The House bill would have fully funded the Administration’s request of $300 million for transfer to the Global Fund to Fight AIDS, Tuberculosis and Malaria and continued the National Children’s Study with an appropriation of $110.9 million. Consistent with the new NIH authorization, the bill would have provided $495.153 million for the Common Fund, which would have been supported as a set-aside within the Office of the Director at the statutory minimum of $495.153 million, rather than through an assessment of IC budgets.

HOUSE FLOOR ACTION

Amendments to the House bill that were offered and their disposition were as follows:

• An amendment by Representative Marilyn Musgrave (R-CO) to reduce appropriations for NIAID for the Global Fund to Fight AIDS, Tuberculosis and Malaria by $175,000 and to reduce the salary for the Director of the Global Fund to Fight AIDS, Tuberculosis and Malaria (Accepted)
• An amendment by Representative Scott Garrett (R-NJ) to reduce the funding for Alaska Education Equity and to increase the appropriation for the National Cancer Institute (NCI) by $10 million (Failed on a technical point of order)
• An amendment by Representative Sam Graves (R-MO) to reduce appropriations for NIAID (by transfer) and redirect $125 million to special education (Failed on a roll call vote)
• An amendment by Representative Joe Barton (R-TX) to increase funding for NIH by barring the transfer of NIH funds appropriated for the DHHS evaluation tap to be used for other DHHS agencies (Failed on a roll call vote)
• An amendment by Representative Garrett to limit to 50 the number of employees from a Federal department permitted to travel (with the bill’s appropriated funds) to an international conference (Accepted by the Chair and passed by a voice vote)
• An amendment by Representative Garrett to increase funding by $10 million for the National Institute of Neurological Disorders and Stroke’s autism program and provide $10 million for NCI. The amendment would have been offset by reducing funding for the U.S. Department of Labor. (Accepted by the Chair and passed by a voice vote)

SENATE ACTION—S. 1710

On June 19, the Senate Appropriations Subcommittee on Labor, HHS, Education and Related Agencies marked up the FY 2008 Labor, HHS, Education and Related Agencies appropriations bill. The bill, S. 1710, was reported out by the full Senate Committee on Appropriations on June 21 and was passed by the Senate on October 23. S. 1710 would have provided NIH with $1 billion over the FY 2007 enacted level, or $29,899,887,000 for FY 2008 ($1,278,646,000 over the President’s budget request). It would have provided, for the first time since FY 2005, funds to increase the average costs of new grants (by 3 percent) and provide the full “committed level” for noncompeting grants. The bill, like its House counterpart, would have provided $110.9 million for the second full year of implementing the National Children’s Study (the FY 2007 appropriation was $69 million); fully funded the Administration’s budget request of $300 million for transfer to the Global Fund to Fight AIDS, Tuberculosis and Malaria (the FY 2007 transfer was $99 million); and provided $531.3 million for the Common Fund, to be displayed on the funding table within the Office of the Director. This would have been a 10-percent increase for the Common Fund (formerly known as the NIH Roadmap) over the FY 2007 appropriation of $483 million. The budget request was $486.153 million. Within the Fund, the Committee recommended $28.459 million for the Director’s Pioneer Awards, $55 million for the Director’s New Innovator Awards, and up to $25 million that could be awarded using a flexible research authority described in a general provision of the bill.

SENATE FLOOR ACTION

The Senate completed action on H.R. 3043, passing the bill by a vote of 75 to 19 and clearing the legislation for a conference with the House. At the beginning of the debate, Senator Harkin successfully offered an amendment in the nature of a substitute that stripped language from the bill that would have expanded funding for embryonic stem cell research. There were no other amendments directly relevant to NIH, other than the numerous amendments to add funding to programs throughout the bill through cuts to the salary and expense accounts of the agencies and departments included in the bill on a pro rata basis. There was also a colloquy between Senators Michael B. Enzi (R-WY), James M. Inhofe (R-OK), Arlen Specter (R-PA), and Harkin on the bill language included in H.R. 3043 about public access. While Senators Enzi, Inhofe, and Specter expressed concern about the provision, Senator Harkin stated that he remained committed to retaining the provision as it is written in the Senate and House appropriation bills.

CONFERENCE REPORT ON H.R. 3043

On November 6, the House began floor action on the conference report on the FY 2008 Labor, HHS, Education and Related Agencies appropriations bill, which also included the FY 2008 Military Construction-VA appropriations bill, H.R. 2642. The conference agreement on the FY 2008 Labor, HHS, Education and Related Agencies appropriations bill included $30 billion for NIH in FY 2008. This was an increase of $1.1 billion (3.8 percent) over the FY 2007 level. The conferees added an additional $100 million above the Senate-passed level. The Senate bill had proposed $29.9 billion, while the House bill proposed $29.65 billion. The final conference number also included the $300-million transfer for the Global Fund to Fight AIDS, Tuberculosis and Malaria as proposed by both the House and Senate, so the adjusted number for NIH would have been $29.7 billion, a net increase of $899 million (3.1 percent). The conference measure was approved by the House by a vote of 269 to 142. On November 7, the Senate took up H.R. 3043, stripped the Military Construction-VA portion from the bill, and then passed H.R. 3043 by a vote of 56 to 37. The President had indicated that he would veto the bill, with or without the Military Construction-VA portion, and he did so.

APPENDIX 3

HOUSE AMENDMENT TO SENATE AMENDMENT TO H.R. 2764 - Page 1

HOUSE AMENDMENT TO SENATE AMENDMENT TO H.R. 2764 - Page 2