[Congressional Record Volume 143, Number 69 (Thursday, May 22, 1997)]
[Extensions of Remarks]
[Pages E1045-E1046]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                        PEOPLE'S RIGHT TO ACCESS

                                 ______
                                 

                          HON. STENY H. HOYER

                              of maryland

                    in the house of representatives

                         Thursday, May 22, 1997

  Mr. HOYER. Mr. Speaker, I rise today to let the American people know 
about a growing concern with the public's access to Government 
information. Throughout our country's great history, the Government 
Printing Office has been the source of all printing done by all Federal 
agencies. Under title 44 of the United States Code, all agencies are 
required to use the Government Printing Office for their printing 
needs. However, over the years, more and more of the executive branch 
agencies have been doing their own in-house printing, circumventing the 
system and neglecting to make all Government documents available to the 
Depository Library System and thus breaking the channel of information 
to the American people.
  At a recent hearing of the Senate Rules and Administration Committee, 
it was stated that more than half of all Government documents printed 
by executive agencies were never sent to depository libraries. Well 
over 50,000 documents have not been made available in the public 
domain.
  It is important that people know just how serious this problem is. 
The Office of the Superintendent of Documents at the Government 
Printing Office recently issued a report on the extent of the problem 
which I am placing in the Congressional Record for all to read. We must 
not allow this loss of public information to continue and must get all 
Government documents to our Depository Library System.

                Fugitive Documents: Scope and Solutions


                        the scope of the problem

       According to 44 U.S.C. Sec. 1902, ``Government 
     publications, except for those determined by their issuing 
     components to be required for official use only or for 
     strictly administrative or operational purposes which have no 
     public interest or educational value and publications 
     classified for reasons of national security, shall be made 
     available to depository libraries through the facilities of 
     the Superintendent of Documents for public information.'' 
     Depository libraries make these publications available for 
     free use by the public. Traditionally, most Government 
     publications of general interest, including legislative, 
     regulatory, business, and consumer titles, as well as many 
     scientific and technical reports and studies, have been 
     distributed through the GPO's Federal Depository Library 
     Program (FDLP).
       Many publications produced by the Government fail to be 
     included in the FDLP. Documents that belong in the Program, 
     but which are excluded, are known as fugitive documents. 
     Their absence from depository library collections impairs 
     effective public access to Government information.
       Although no study has resulted in a definitive answer, we 
     estimate that more than 50 percent of all tangible Government 
     information products are not being made available to the 
     Federal Depository Library Program (FDLP). Of these, we 
     estimate that there are about 55,000 scientific and technical 
     documents and reports which are neither printed through GPO 
     nor furnished by the issuing agencies to the FDLP as required 
     by law. The issuing agencies do, however, provide either a 
     printed copy or an electronic image file of each of these 
     documents to the National Technical Information Service 
     (NTIS).
       In FY 1996, NTIS took in about 160,000 scientific, 
     technical, and business-related titles, most but not all of 
     which were published by the Government. We estimate that 
     about 70 percent, or 112,000, of NTIS's total intake belongs 
     in the Program. Compared with the 57,000 titles in the FDLP 
     in FY 1996, this leaves at least 55,000 fugitive titles which 
     should have been provided to GPO by the publishing agencies, 
     NTIS provides bibliographic access to the publications it 
     takes in through its abstracting and indexing activities. 
     This makes them available to the public and to depository 
     libraries on an on-demand basis from NTIS, but at a 
     significant cost.
       In addition, there is an unknown number of fugitives which 
     are primarily general, public interest materials produced by 
     agencies using avenues other than GPO. It is virtually 
     impossible to estimate the total number of these titles, but 
     they may well number in the thousands and include, but are 
     not limited to, the publications of Federal District Courts 
     and Courts of Appeal, Federal Election Commission financial 
     disclosure statements, and Library of Congress Congressional 
     Research Service reports.
       Recently, four major factors have contributed to increasing 
     losses of key general interest publications to the FDLP. 
     These are: (1) electronic information dissemination via 
     agency Web sites without notification to the FDLP; (2) the 
     decreasing compliance with statutory requirements for 
     agencies to print through GPO or to provide copies of 
     publications not printed through GPO to the FDLP; (3) the 
     increasing trend for agencies to establish exclusive 
     arrangements with private sector entities that place 
     copyright or copyright-like restrictions on the products 
     involved in such agreements; and (4) increasing use by 
     agencies of language in 44 U.S.C. Sec. 1903 that permits 
     publications to be excluded if they are ``so-called 
     cooperative publications which must necessarily be sold in 
     order to be self-sustaining.''
       Even in cases where the FDLP learns about such fugitive 
     general interest publications, extensive negotiations and 
     even Congressional intervention have proved necessary to 
     ensure compliance with the depository library provisions of 
     Title 44. The following list includes some particularly 
     egregious examples of failure to comply with statutory 
     requirements. It should be noted that OMB's Office of 
     Information and Regulatory Affairs (OIRA) has not provided 
     any significant assistance to GPO in detecting or resolving 
     these problems.


                u.s. international air travel statistics

       U.S. International Air Travel Statistics was published by 
     the Department of Transportation using data derived from the 
     Immigration and Naturalization Service and distributed to the 
     FDLP. In FY 1996, Congress transferred the collection and 
     dissemination of this data to the Department of Commerce's 
     International Trade Administration (ITA). According to ITA, 
     this publication is available for sale from ITA's Tourism 
     Industries office, is a self-sustaining publication not fully 
     funded by Federal monies, and is exempt from distribution to 
     the FDLP.


             handbook of international economic statistics

       For many years, this publications was printed and published 
     by the CIA as the Handbook of Economic Statistics, sold by 
     the Superintendent of Documents Sales Program and distributed 
     to the FDLP. After 1992, the CIA no longer made it available 
     to the sales or depository programs. It is now sold by NTIS 
     and paper copies are not being offered to the FDLP. The 1996 
     edition of the CIA's World Factbook CD-ROM includes an 
     electronic version of the Handbook, but for such standard 
     reference works, the preferred format for depository 
     distribution is paper.


        precursor systems analyses of automated highway systems

       This CD-ROM product is being sold by the Department of 
     Transportation and is not being provided to the FDLP. 
     Although the FDLP may be receiving some of the printed 
     reports that form the basis of the CD-ROM, it is probably not 
     receiving all of the data included.


                            order now cd-rom

       This NTIS CD-ROM product includes two years' worth of 
     abstracts and indexes not available elsewhere. NTIS has 
     expressed a willingness to make the CD-ROM available as a 
     benefit to the public and as a promotional tool for their 
     sales program, provided GPO paid the retrieval software fees,

[[Page E1046]]

     but has stated that ``[a]t no time did we consider this to be 
     a question of compliance with Title 44,'' apparently based on 
     the fact that the publication in question is electronic 
     rather than print.


            toxic substance act chemical substance inventory

       The last material associated with this EPA product that was 
     received by the Depository Program was the 1990 Supplement to 
     the 1985 edition. It is now available exclusively through 
     NTIS. When contacted, EPA said that it supplied data to NTIS, 
     not a finished product, and for this reason was not 
     responsible for depository copies. NTIS has not furnished 
     copies for the Depository Library Program.


 creating a government that works better but costs less: status report 
                                 cd-rom

       This series has been distributed by the Sales and 
     Depository Programs in print but the CD-ROM, which includes 
     additional information, is available only from NTIS. NTIS has 
     not responded to requests for depository copies.


                   export administration regulations

       Despite a request in writing to the Bureau of Export 
     Administration requesting a copy of this database for 
     mounting on GPO Access, the agency has not responded. The 
     agency has, however, entered into an exclusive distribution 
     agreement for both print and electronic versions of the EAR 
     with NTIS, and has paid NTIS to mount the database. A year 
     ago, the Superintendent of Documents wrote to Bruce McConnell 
     of OIRA to request an OMB review of the agreement between 
     NTIS and the Office of Export Administration but did not 
     receive a response. Several months of discussion with NTIS, 
     as well as intervention by the Joint Committee on Printing, 
     were required before NTIS agreed to provide print copies of 
     this product.


                          big emerging markets

       Developed by the International Trade Administration and 
     printed by a private firm in a joint venture with NTIS, this 
     product was originally offered to the FDLP in microfiche 
     format. This was unsuitable due to the presence of color 
     charts in the product. Only after several months of 
     discussion and Congressional pressure did NTIS provide print 
     copies.


                journal of the national cancer institute

       This periodical is now published by Oxford University Press 
     under the terms of a Cooperative Research and Development 
     Agreement (CRDA) with the National Cancer Institute (NCI). 
     Initially the FDLP was told by NCI that this arrangement 
     rendered the Journal a non-Government product, even though 
     editorial work is still being performed by NCI employees. 
     After NCI officials discussed the matter with the Joint 
     Committee on Printing, Oxford University Press agreed to 
     furnish depository copies. NCI has not, however, returned 
     calls made by FDLP for the purpose of setting up a mechanism 
     to accomplish this.


      hispanics-latinos; diverse people in a multicultural society

       This title was first published by a private sector trade 
     association based in Washington, DC. Although the data was 
     gathered and prepared at public expense it was provided to 
     this private group, which then copyrighted the publication 
     and sold it for $10 per copy. Because Hispanics-Latinos was 
     not printed through GPO, it was not initially available to 
     the Depository Program. When this situation was brought to 
     the attention of the Census Bureau through Senate Rules 
     Committee hearings, the Bureau reprinted the book through GPO 
     so depository copies would be available.


              a nation of opportunity/kickstart initiative

       The United States Advisory Council on the National 
     Information Infrastructure issued two reports that were 
     initially published by West Publishing, a major private 
     sector seller of legal publications and databases, although 
     they were prepared by the Commission at public expense. 
     Initially these publications were not made available to 
     either the Superintendent of Documents Sales or Depository 
     Programs.
       Once the Joint Committee on Printing was apprised of this 
     situation it contacted the Commission. As a result, the 
     National Telecommunications and Information Administration of 
     the Department of Commerce reprinted the publications through 
     GPO in a much less elaborate black-and-white format and both 
     the Sales and Depository Programs acquired copies.


   population of states and counties of the united states: 1790-1990

       This Census publication was printed by NTIS rather than 
     through GPO. Through what was described by Census as a 
     ``handshake agreement,'' NTIS asked that Census not make this 
     publication available to either the Depository or Sales 
     Programs for the first six months so as not to hurt its 
     exclusive sale by NTIS. As a result of Senate Rules Committee 
     hearings, GPO obtained a copy from Census shortly after its 
     publication by NTIS. The Depository Program printed copies 
     for its use and Sales acquired copies for sale to the public.


              solutions to the fugitive documents problem

       Since nearly all fugitives involve titles not printed or 
     procured through GPO, the simplest and most cost-effective 
     solution would be for agencies to obtain all of their 
     tangible information products through GPO. This would afford 
     the FDLP the opportunity to ride for depository copies. Any 
     agencies not obtaining their information products through GPO 
     would be in compliance with Sec. 1903 if:
       The agency provides the requisite depository copies to the 
     FDLP, free of any encumbrances such as software licensing 
     fees or copyright-like restrictions
       In the case of online services, the agency provides no-fee 
     access to the FDLP


                        the costs of compliance

       If delivered to the Superintendent of Documents (SoD) in 
     print format, these formerly fugitive titles would represent 
     a significant new workload that neither the SoD or the 
     libraries in the FDLP have adequate resources to handle. We 
     estimate that, based on the current mix of paper, microfiche, 
     and electronic formats being disseminated by the FDLP, 
     providing these fugitives in a similar mix would increase 
     costs by approximately $8 million. This, however, is an 
     unlikely scenario.
       In our view, it is more plausible that the migration of 
     printing of electronic publishing already in evidence will 
     continue to grow. This scenario provides a unique opportunity 
     to bring additional information into the FDLP for no-fee 
     public use. When the source information is in electronic 
     format, the agency can either make it available on their own 
     Internet Web site, or can ask GPO to make it available via 
     the GPO Access service. Either of these approaches would 
     enable the FDLP to provide more information to the public, 
     while limiting the increased costs to the Government. In this 
     scenario, the projected decline in the amount of printed 
     material would gradually reduce the costs to the Program.
       When an agency publishes via the Web, the major SoD cost 
     increases are for the provision of cataloging and locator 
     services so users can find the information; and for permanent 
     access services to ensure that the electronic content is 
     maintained for use in the future. We believe that these costs 
     should be funded out of the SoD appropriation. If an agency 
     provides electronic content for disseminating via GPO Access, 
     there will be costs associated with processing that 
     information and mounting it on the system. These 
     ``developmental'' costs may be borne by the originating 
     agency, by the SoD, or by a combination of the parties. In 
     any case, we would expect some cost savings to the Government 
     and the SoD from this electronic approach when compared to 
     the all-print scenario.
       A low-cost solution for the FDLP may be at hand which would 
     make the scientific and technical information held by NTIS 
     available on a no-fee basis to depository libraries through 
     the use of electronic imaging technology. We are presently 
     participating in a pilot project whereby NTIS will provide 
     depository libraries access to these image files at no cost. 
     At issue that still needs to be resolved is that NTIS is 
     considering restrictions on the redissemination of these 
     files by depository libraries to prevent any adverse effect 
     on NTIS sales. Before the NTIS solution can be viewed as a 
     workable approach for large quantities of fugitive 
     information, NTIS' copyright-like restriction on 
     redissemination of the electronic version of the information 
     must be eliminated.
       In addition, it is critical that any revision of Title 44 
     make clear that an agency's obligation to provide their 
     information to the FDLP is not overtaken by other 
     requirements, including any mandate to operate on a self-
     sustaining or cost-recovery basis. For example, when an 
     agency charges users for access to Government information at 
     its Web site, there needs to be statutory language that 
     clearly directs the agency to provide no-fee depository 
     access.
       Revisions to Chapter 19 of Title 44 must also provide for 
     advance notification of the FDLP by agencies when information 
     products are initiated, modified, or terminated on agency Web 
     sites, define Government information products so as to 
     include in the FDLP any publications produced under 
     agreements with private sector entities, and delete the 
     current exemption for ``cooperative publications.''

     

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