ADMINISTRATIVE NOTES Newsletter of the Federal Depository Library Program Vol. 18, no. 09 GP 3.16/3-2:18/09 June 15, 1997 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."