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Fugitive Documents: Scope and
Solutions
[Entered into the record of the Senate Rules Committee
hearing on Title 44 revision and compliance, held 5/22/97.
Printed in the Congressional Record, 5/22/97, by Rep. Hoyer
(D-MD), p. E1045-E1046.]
The Scope of the Problem
According to 44 U.S.C. Sec. 1902, "Government publications,
except 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 publication 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
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, 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 it 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 its 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 to 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. An
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 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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.New Phone Numbers, E-mail Addresses in LPS
As the renovation of the Library Programs Service offices
proceeds, more phone numbers and e-mail addresses have changed.
The chart on the next page shows the current contact points for
LPS staff.
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Depository Libraries
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Information to
You
The Federal Depository Library Program
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