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MICHAEL F. DiMARIO
PUBLIC PRINTER
PREPARED STATEMENT BEFORE THE
COMMITTEE ON RULES AND ADMINISTRATION
U.S. SENATE
ON
PROPOSED REVISIONS TO TITLE 44, U.S. CODE
THURSDAY, APRIL 24, 1997
ROOM 301, RUSSELL SENATE OFFICE BUILDING
9:30 A.M.
Mr. Chairman, Senator Ford, and Members of the Committee on Rules and
Administration, thank you for inviting me here this morning to provide comments on proposed
revisions to Title 44, U.S. Code.
From the outset, Mr. Chairman, I want to commend you for the high level of interest you
are giving to protecting public access to Government information. In previous hearings on public
access and on the Government Printing Office (GPO), held before this Committee last July and
before the Joint Committee on Printing (JCP) in March, you conveyed your deep interest in this
important issue as well as your determination to effect needed changes. I know that Senator Ford
as Ranking Member also shares a deep concern for protecting public access from my experience in
working with him as the previous Chairman of this Committee. In addition, I appreciate the
process of consultation that has been conducted by the staff director of the JCP, Mr. Eric Peterson,
in preparing the proposed revisions to Title 44.
I support the Title 44 revision objectives that you are pursuing: (1) resolving the
constitutional separation of powers issue; (2) establishing an effective and enforceable compliance
mechanism; (3) ensuring public access to taxpayer-supported information as well as preserving and
protecting the Federal Depository Library Program (FDLP); and (4) ensuring that both Title 44 and
the FDLP can continue to operate effectively in this era of changing information technologies. I
have been involved in these issues and efforts to resolve them for many years.
I think the process that so far has resulted in the unnumbered draft bill known as the
"Government Printing Office Act of 1997" is a positive beginning. However, I strongly believe
that this draft will need several changes and a great deal of further development before I could
support it as a sound and effective approach to the resolution of our jointly held concerns. My
statement today outlines these changes, and I look forward to working closely with you to develop
the necessary legislative language.
Separation of Powers. In my view, the transfer of JCP authorities to the Public Printer,
who would exercise them as a Presidential appointee, would resolve the problem of congressional
control over executive branch printing. The transfer of GPO to the executive branch in any form is
neither necessary nor desirable if Congress wishes to continue ensuring cost-effectiveness and
efficiency in Government printing as well as comprehensive and equitable public access to
taxpayer-supported information.
The 1996 memorandum opinion of the Justice Department's Office of Legal Counsel
(OLC) to the General Services Administration (GSA) appears to be the basis of the proposal to
transfer GPO to the executive branch (Memorandum for Emily C. Hewitt, General Counsel,
General Services Administration, from Walter Dellinger, Assistant Attorney General, Office of
Legal Counsel, Re: Government Printing Office Involvement in Executive Branch Printing, May
31, 1996). Yet without exception, for twelve years prior to this opinion the OLC had taken the far
more limited position that the separation of powers problem lies in the statutes authorizing direct
JCP control over executive branch printing (Memorandum for William H. Taft IV, Deputy
Secretary of Defense, Department of Defense, from Theodore B. Olson, Assistant Attorney
General, Office of Legal Counsel, Re: Effect of INS v. Chadha on 44 U.S.C. 501, "Public
Printing and Documents," March 2, 1984; Memorandum for Michael J. Horowitz, Counsel to the
Director, Office of Management and Budget, from Theodore B. Olson, Assistant Attorney
General, Office of Legal Counsel, Re: Constitutionality of Proposed Regulations of Joint
Committee on Printing under Buckley v. Valeo and INS v. Chadha, April 11, 1984; and
Memorandum for Michael J. Horowitz, Counsel to the Director, Office of Management and
Budget, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re:
Government Printing, Binding, and Distribution Policies and Guidelines of the Joint Committee on
Printing, August 21, 1984).
Before 1996, the OLC only once addressed the constitutionality of GPO operations
themselves. In 1993, the OLC opined that the statutory requirement that no appropriated funds
may be used by executive branch agencies to procure the production of any Government
publication except through GPO, found in section 207 of the Legislative Branch Appropriations
Act for FY 1995,
...does not violate the separation of powers by delegating executive authority to the
GPO...It does not give the GPO the authority to refuse to print any materials, but
merely requires that printing be procured "by and through" the GPO. Moreover,
because 44 U.S.C. 1101 provides that "the Public Printer shall execute such
printing and binding for the President as he may order and make requisition for,"
the executive branch retains its ability to ensure that materials are printed.
(Memorandum for Emily C. Hewitt, General Counsel, General Services
Administration, from Walter Dellinger, Assistant Attorney General, Office of Legal
Counsel, Re: General Services Administration Printing Operations, September 13,
1993; this principle was reaffirmed in Memorandum for Emily C. Hewitt, General
Counsel, General Services Administration, from Walter Dellinger, Assistant
Attorney General, Office of Legal Counsel, Re: Reconsideration of September 13,
1993, Opinion, March 11, 1994.)
Since the Chadha decision, many observers thought that any constitutional challenge to the
validity of the JCP's control would result in severing those provisions from the statute, and that the
rest of Title 44 covering GPO would stand. I suggested in statements before this Committee in
1994 and last July, and before the House Oversight Committee in 1995, that a transfer of JCP
authorities to the Public Printer offered a workable solution to the problem.
In 1996, the OLC stated for the first time that GPO's "extensive control" over executive
branch printing violates the separation of powers. Why did the OLC change its mind after twelve
years? I don't know, but it is clear that the 1996 opinion underscored the goal of the National
Performance Review (NPR) to allow the executive branch to establish its own printing policy.
As I stated before this Committee last July, I think the OLC's 1996 opinion was wrongly
decided. GPO has no "extensive control" over executive branch printing. As the OLC itself stated,
GPO has no veto authority over executive branch work. Instead, GPO handles executive work in a
purely ministerial capacity. Under Title 44, we cannot refuse to fulfill an executive branch
requisition for printing, and we have no control over the editorial or information content of
executive branch publications. Our job is only to ensure that printing requisitions are fulfilled in
the most economical and timely manner possible, and to provide for the cost-effective,
comprehensive, and equitable dissemination of Government information to the public through
information products obtained with GPO funds. These functions are performed under the
authority of the Public Printer who, like many officers in the executive branch, is appointed by the
President and confirmed by the Senate and serves solely at the pleasure of the President.
I believe that the source of the problem is not where GPO is located in the Government's
organization chart. GPO has operated effectively in its current location for more than a century.
The issue instead is the entanglement of the JCP's control with GPO operations under several
provisions of Title 44. The OLC's 1996 opinion stated as much when it said, "the constitutional
doctrine of separation of powers forbids Congress from vesting non-legislative functions --
specifically, in the case of your inquiry, executive functions -- in the GPO if Congress retains
control over the GPO" (p. 9, emphasis added). In a recent letter to the Chairman conveying
responses to questions for the record submitted by this Committee to the Justice Department
following the hearing last July, the Department again made the claim that "the Constitution
prohibits Congress from vesting an entity over which Congress has control with executive
functions," and went on to itemize specifically those controls that it finds objectionable. Each one
pertains to statutory controls exercised by the JCP over GPO (Letter from Andrew Fois, Assistant
Attorney General, Office of Legislative Affairs, Department of Justice, to the Honorable John W.
Warner, Chairman, Committee on Rules and Administration, U.S. Senate, April 7, 1997,
response to question 2, emphasis added).
The question remains, then, whether the satisfactory resolution of the separation of powers
issue lies in the targeted, surgical removal of the offending provisions of the current statute through
the transfer of JCP authorities to the Public Printer, or whether a wholesale transfer of GPO to the
executive branch is necessary or even desirable. Transferring JCP authorities to the Public Printer
would leave intact the operational requirements for GPO, including the requirement in 44 U.S.C.
501 that all Government printing be performed through GPO as well as the enforcing mechanism
in section 207 of the 1995 Legislative Branch Appropriations Act. The disadvantages of the
proposal to transfer GPO to the executive branch, on the other hand, are potentially significant.
First, if the proposition is accepted that in order to be constitutional GPO must be
transferred to the executive branch, the legislative and judicial branches will immediately be
provided with a constitutional pretext for withdrawing their work from GPO. The costs of
establishing separate production or procurement entities for each of these branches would be
significant, and it would erect new barriers to public access to congressional and judicial
information through GPO's programs. I am especially uncertain that Congress could or would
continue to depend on an executive branch agency for its printing needs, and I recall that a proposal
to transfer GPO to the executive branch in the 103rd Congress was quickly amended to retain it in
its current location. In a redrawn Title 44 which simply transfers current JCP authorities to the
Public Printer, this issue would be avoided. If the sense is that, once the constitutional problem
with JCP control is removed, executive branch agencies will not come to GPO in its current
location simply because they do not like cooperating with a centrally managed information
production, procurement, and dissemination authority, transferring GPO to the executive branch
itself would not make any difference.
Second, I seriously doubt whether GPO can be reconstituted in the executive branch with
sufficient protections to prevent its control by the Office of Management and Budget (OMB), an
agency which has not always had a strong record of commitment to comprehensive and equitable
public access to taxpayer-supported information and to the cost-effective production and
procurement of Government information products.
I have commented several times before this Committee, the House Oversight Committee,
the JCP, and our Appropriations Committees on the costs and public access problems posed by the
proliferation of agency printing operations, a situation that OMB has taken no interest in correcting
despite the ability to do so through policy circulars issued by its Office of Information and
Regulatory Affairs. OMB has also continued to actively promote the NPR proposals that would
decentralize, and thereby raise the costs of, Government printing. I am skeptical of OMB's interest
in protecting public access to Government information. OMB has only weakly supported the
FDLP. It has not enforced the statutory requirement that agencies provide copies of publications
produced elsewhere than GPO for distribution to depository libraries. It has stood by when
agencies have attempted to use copyright or copyright-like controls on Government information
that impede public access in spite of statutes on copyright and in the Paperwork Reduction Act that
prohibit such activity. The problems with OMB's own legislative proposal for the FDLP,
circulated last year and which I commented on before this Committee last July, only reinforce my
concerns about its commitment to public access.
Establishing GPO as an independent agency in the executive branch would require a
significant range of guarantees that OMB, and other agencies, could not interfere with the operation
of statutory objectives assigned by Congress to GPO. I am far from certain that these guarantees
could be provided. OMB's controls are sweeping and pervasive throughout the executive branch.
If GPO remains in its current location, it would not be subject to those controls. Moreover,
placing GPO in the executive branch would put our policies for information production,
procurement, and dissemination in direct competition with those of larger, more influential
departments and agencies, and I am not confident that we would be able to effectively carry out our
mission in such an environment.
Finally, placing GPO in the executive branch would subject us to a host of laws,
regulations, and policies for which we are currently unprepared and which may be injurious to our
programs, and could lead to higher costs for the taxpayers. For example, it would potentially
subject our printing procurement program to the Federal Acquisition Regulation (FAR), which
provides for a far less effective and competitive procurement system than our current Printing
Procurement Regulation (section 402 of the current draft bill appears to contain an exemption for
GPO from the FAR, but such language would need to be much clearer and more specific than is
currently provided). As another example, if GPO were in the executive branch, would it be
possible to use the Freedom of Information Act to obtain from us a copy of a manuscript, perhaps
a congressional report, before it is printed and issued? Our personnel systems would require
substantial revision, as would other programs and operations, all of which would impose
additional costs on GPO.
For all of these reasons, therefore, the option to transfer JCP authorities to GPO seems to
me to be a far more simple, direct, and effective method of dealing with the separation of powers
issue than transferring GPO to the executive branch, and we can provide this Committee with the
appropriate language to accomplish this purpose.
As to the future of the JCP, the draft bill calls for the remaining JCP oversight authorities
and control over congressional printing to be shared between this Committee and the House
Oversight Committee. While the final disposition of this matter is for Congress to decide, I have
previously said that JCP authority over these matters has been very useful to GPO, particularly in
the area of resolving issues between the two Chambers on questions of congressional format,
style, and printing priorities and especially during extremely busy periods such as sine die
sessions. Appropriate legislative oversight over Government printing and information
dissemination issues may be more effectively accomplished through a joint body, such as a Joint
Committee on Information Management, as proposed in the House report of the Joint Committee
on the Organization of Congress in the 103rd Congress. If you wish we can provide you with
proposed language to do this.
In one final matter regarding the transfer of JCP authorities to GPO, the authority to resolve
wage disputes between GPO management and labor could not be exercised by the Public Printer,
nor by any congressional committee if there is to be a complete severing of congressional control
over GPO. There are undoubtedly several alternatives that could be devised that would allow for
the fair and impartial resolution of wage disputes at GPO, and we can provide language to this
Committee.
Compliance Mechanism. When Congress consolidated the Superintendent of
Documents function with GPO in the Printing Act of 1895, it set up a system whereby the
production and procurement of publications and information products were automatically linked
with the documents distribution function. Under this system, publishing entities, including
Congress and Federal agencies, obtain the most economical and timely production of their
publications while the operations and costs for disseminating information products are transparent
to them, since GPO selects, distributes, and pays for the cost of publications made available to the
public.
As long as the linkage between production, procurement, and dissemination continues to
operate, the Government and the public will have one of the most effective mechanisms for
ensuring comprehensive and equitable access to Government information. When that linkage is
enhanced with the operational capabilities that GPO has on hand -- especially the capability to
combine packages of expert electronic services, procurement facilitation, and creative
dissemination systems such as was developed for the new Commerce Business Daily -- agencies
have an additional incentive to utilize GPO's operations and programs for their information
products, and the public has an additional guarantor of access.
Backing up the requirement that agencies utilize GPO for printing and procurement is the
section 207 prohibition on utilizing appropriated funds to procure the production of Government
publications. This is a useful compliance tool, and with the removal of the constitutional issue
regarding the JCP and GPO, it will help limit the activities of other Federal printing entities. If the
reference in this provision to "appropriated funds" is being interpreted as preventing its
applicability to publications produced through revolving or other funds, we can devise language to
clarify Congress's intention.
I recognize the Committee's concern to develop methods that would prevent agencies from
using copyright and copyright-like controls on information products that impede public access to
taxpayer-supported information. The current draft bill contains sections establishing civil penalties
for such actions. However, I think these penalties are unnecessarily harsh and I question whether
they would be effective. There already is a criminal penalty for fraudulently copyrighting
information under Title 17 of the U.S. Code, although I don't know how much it is used.
Establishing new definitions would be helpful in clarifying Congress's intent to ensure
continued public access to Government information. The draft bill contains proposed definitions,
although as I explain below I believe they need to be changed. Other compliance tools available are
the 1994 position of the Comptroller General that agencies contracting directly for work in
violation of section 207 may not pay contractors for such work, and various agency inspectors
general can be called on to help ensure that lawful requirements are observed. Beyond these, there
are other ways to address the problem of compliance that could be effective without necessarily
penalizing employees.
One such measure would be to eliminate the current exemption from depository distribution
requirements found in 44 U.S.C. 1903 for cooperative publications, those publications
that necessarily must be sold to be self-sustaining. There is little evidence that depository
distribution of publications injures public sales (all of the titles we carry in our sales program are
also distributed to depository libraries). The exemption for cooperative publications is used by
some agencies as authority to evade the requirement for depository distribution of their
publications, particularly the National Technical Information Service (NTIS) of the Commerce
Department. The elimination of the exemption would remove that obstacle to NTIS cooperation
with the FDLP without necessarily interfering with its ability to recover costs. Similar language
could be developed to specifically state that Government publications developed as the result of
joint ventures and related agreements must be placed in the FDLP.
The draft bill contains language requiring the Public Printer to consult with advisory
councils of agencies and others doing business with GPO. We already do this as a matter of
practice through the Interagency Council on Printing and Publications and the Depository Library
Council. These mechanisms improve communications and decrease the necessity for enforcement
measures, but I am not convinced they need to be required by statute.
Ensuring Public Access and Protecting the FDLP. In this day when we see an
increased number of entrepreneurial actions by agencies with Government information products, it
would be very useful to reaffirm Congress's intention that permanent public access to taxpayer
supported information cannot be restricted or impaired. This will help protect the mission of the
FDLP. An explicit reference in the law to GPO's role in making information available in "any
form or format" is also necessary to remove any ambiguity about GPO's role in the electronic era.
I agree with the need for a new definition of "Government publication," as currently
provided in 44 U.S.C. 1901. However, I am concerned that the draft bill's definitions of
"Government publication" and "public information" may be interpreted to mean that only those
materials which an agency takes action to "disclose, disseminate, make available to the public, or
make available for dissemination to the public" must be included in the FDLP. Such an
interpretation could result in the exclusion of many Government information products that are
developed for internal use or for a very narrow target audience, but which have significant public
interest or educational value.
Instead of "public information," I would suggest the use of the term "Government
information" which is reflective of the public's broader interest, as currently expressed in 44
U.S.C. 1902. This section of law does not apply just to products developed specifically for
dissemination to the public. I would also suggest the term "Government information product"
instead of "Government publication." This term can cover all "works of the United States
Government" in any form or format, whereas the term "publication" is associated primarily with
print products.
In my view, the language "at Government expense, or as required by law" must be
included in the definitions, as found currently in 44 U.S.C. 1901. Many Government information
products, particularly those of a scientific and technical nature, are developed at Government
expense by private contractors and grantees, so this language is necessary to ensure that such
products are included in the FDLP. I would also suggest that a new term, "Government electronic
information service," be used to describe the many electronic sites, such as Web sites and bulletin
boards, now being operated by Federal agencies. These "services" constitute the platforms that
enable the use of information products which reside on them.
Finally, the definition of "work of the U.S. Government" under section 102 of the draft bill
would amend 44 U.S.C. 3502, a provision of the Paperwork Reduction Act, which applies only to
the executive branch. In order to have a Government-wide application, some other vehicle for this
definition should be considered. We will work with you to devise the needed changes.
The suggested legislative changes to chapter 19 of Title 44 that we submitted to this
Committee by letter dated August 22, 1996, should be reviewed for incorporation into the draft
bill. The changes resulted primarily from the Study to Identify Measures Necessary for a
Successful Transition to a More Electronic Federal Depository Library Program (GPO: June
1996) that was requested by Congress. The study included the task of an "evaluation of current
laws governing the FDLP and recommendation of legislative changes." Working on this task were
GPO staff along with representatives of the American Library Association (ALA), the American
Association of Law Libraries (AALL), the Association of Research Libraries (ARL), and the
Information Industry Association (IIA), although all members of the study group, including OMB,
were invited to participate. After publishing the final study report, we informally discussed and
reviewed the suggestions for changes with Government information groups of the ALA, the
AALL, members of the depository library community, and GPO's Depository Library Council,
and the changes we sent to the Committee reflected that consultative process. In addition to
offering changed definitions of "Government publication" as described above, the changes include
specific language for establishing mechanisms for ensuring permanent public access to
Government information in all formats and for generally modernizing the depository library
statutes.
Meeting New Technology Challenges. The draft bill contains general language
authorizing the Public Printer to issue regulations relating to the use of developing technologies, to
provide "cost-effective delivery systems for Government information," and relating to the
dissemination of Government publications or public information "in electronic forms or formats."
Such provisions would also resolve the ambiguity of GPO's role in the electronic era and in
general I believe they are useful. However, I envision our role with respect to electronics as one of
cooperation and coordination with Congress and publishing entities, and the language in the bill
should reflect this. We will work with you to develop language that clearly conveys this intent.
Funding Provisions. In testimony before this Committee last July, I summarized my
views regarding concepts to reform GPO's funding mechanism. Outside of the small annual
appropriation we receive for the Superintendent of Document's depository library, cataloging and
indexing, by-law distribution, and international exchange programs, we are required by 44 U.S.C.
309 to recover all of our costs from the prices we set for our work, including costs for a number of
functions that do not contribute to production and distribution but which every Federal agency is
required to perform. Our printing rates must recover costs for our Inspector General's office,
budgeting and accounting, personnel, equal employment opportunity, health and safety, security,
data systems, and so on. Recovering these expenses requires us to increase the prices of GPO's
products and services beyond their direct costs. Most agencies receive an annual salaries and
expenses appropriation to cover these costs. With an appropriation to GPO for general
administrative expenses, the costs charged to Congress and agencies for printing and related
products would decrease substantially. We would like to submit language to revise GPO's
funding mechanism to reflect these views. With particular regard to the language in the draft bill
under section 208, I have a great deal of uncertainty and concern over how such a provision,
allowing committees of Congress to obtain unobligated funds appropriated to GPO, would work.
Review of Agency Plants. Last July before this Committee I also discussed the need to
review the operation of printing plants in Federal agencies. While some of the work done in these
plants is justified (e.g., work for the Central Intelligence Agency, Defense Intelligence Agency,
and the National Security Agency, and short run work for limited internal administrative purposes
only, which was the reason the plants were originally established), much of it could be procured
far less expensively. Over the past 15 years, there have been a number of studies that compared
the cost of performing procurable printing in agency plants with the cost of purchasing it through
GPO. Most have concluded that it is far less expensive to procure through GPO. Also, printing
procured through GPO is automatically eligible for dissemination to the public through the FDLP
and sales programs. A review of agency plants that results in ensuring they are limited to the
performance of internal administrative printing that is outside the requirements for public
distribution contained in the FDLP provisions of Title 44 would reduce the cost of Federal printing
and improve public access to Government information through established dissemination
programs. Language in the draft bill to direct the conduct of such a study either directly by GPO,
or in cooperation with other entities such as the General Accounting Office, would establish a
baseline for Federal printing operations against which improvements could be undertaken and
measured.
Review of Conflicting Authorities. Finally, as part of the effort to improve Federal
information policy and public access but perhaps not necessarily as part of this specific effort to
revise Title 44, I would recommend, as I did before this Committee last July, that Congress
examine the authorities of other agencies to perform printing and dissemination functions that are
being used to conflict with those GPO is required to perform.
During the conduct of the recent study concerning the electronic transition of the FDLP, the
Congressional Research Study of the Library of Congress compiled the various statutes
authorizing the dissemination of Government information to the public. Approximately 400
statutes were identified, although only a handful are of real significance to GPO in terms of
conflicting authorities (most appear to be requirements to produce and/or disseminate information
related to specific program authorities, a feature of law that became common in the 1960's and
1970's with the unwritten assumption that statutory information functions would be carried out in
accordance with Title 44). The statutes that are being used to conflict with GPO's responsibilities
are those governing the operations of NTIS, those that authorize the Federal prisons to perform
Government printing (Federal Prison Industries, or UNICOR), and laws that authorize printing for
other Federal agencies by the GSA.
In each of these cases, statutes were originally enacted for sound but limited public policy
purposes--to provide for the dissemination of scientific and technical information resulting from
Federal research to American business (NTIS), the use of Federal prisoners to perform labor
intensive work to keep them occupied (UNICOR), and the performance of administrative printing
as a central service for Federal agencies physically located together in the field (GSA). However,
in recent years operations conducted under these authorities have been expanded beyond their
original intent to conflict directly with GPO's statutory mission.
NTIS is using its authority to establish printing and dissemination arrangements for a wide
range of information products, not just scientific and technical information products. UNICOR
has invested in labor-saving, long-run printing equipment as a revenue-generating measure,
equipment that paradoxically leads to idle rather than busy prison labor. GSA has established
cross-servicing arrangements for its printing and duplicating plants to assist agencies in some cases
with a wide variety of printing, expanding beyond its original central administrative service unit
(CASU) authority.
These operations remove work from the GPO procurement stream and frequently result in
decreased public access when the publications are not made available to the Superintendent of
Documents for dissemination. Some of the recommendations I have made today, such as
removing the separation of powers problem and eliminating the exemption for cooperative
publications, would be effective in limiting some of the activities of these organizations that conflict
with the goals of economical production and ensuring public access. However, subsequent to any
enactment of Title 44 reform legislation, I would recommend that Congress review the operation of
these authorities to ensure they are staying within the original legislative intent. Such a review
would also be a major contribution to reform of the printing statutes.
* * *
Mr. Chairman, again I commend you and the Members of this Committee for undertaking
this important project. We will provide legislative language to achieve the objectives I have
outlined in this presentation, and I look forward to continuing to work with you to achieve a
revision of Title 44 that will provide cost-effective and openly accessible information services for
Congress, Federal agencies, and the public. This concludes my prepared statement, and I would
be pleased to answer any questions you may have.
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