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Title 44 “reform”: Privatization of printing and erosion of GPO functions mean less public access

Happy 2018! We’re back after a quiet and relaxing new year hiatus. While it’s a new year, we’re still in the throes of Congressional “reform” of Title 44 of the US Code, which defines public printing, distribution of government information, and the federal depository library program (FDLP). Up to this point, we had focused our analysis of the Title 44 “reform” bill on chapter 5, which deals with the FDLP and also published Bernadine Abbott Hoduski’s eloquent argument for why the Joint Committee on Printing (JCP) should be kept.

Peggy Jarrett’s recent piece on LLRX “Legislation Alert: Worrisome Changes to Government Publications Are Possible” has spurred us to go back and look more closely at chapters 1 and 3 which deal with the Government Printing Office (yes this bill changes the name back to the antiquated Printing Office!) and “implementation of authorities.” We believe that these were deliberately embedded into the bill to slash GPO’s budget and hamstring GPO’s ability to provide necessary services, thus severely impacting both public access to government information and the FDLP system. We highly recommend that readers go back and read these 2 chapters with a fine toothed comb and help us sift through. The draft bill is set for markup by the Committee on House Administration (CHA) some time toward the end of January. So there’s still time for the library community to get a grasp of the fine print of the bill and recommend changes to our library lobbyists at the ALA Washington Office (the point person there is Gavin Baker) and directly to the committee.

Here are the lowlights of what we’ve found so far:

  • § 103. Revolving fund

    There’s something odd in this section. Currently, GPO budget is in 2 places: specific annual allowances to print titles like the Congressional Record; and the revolving fund which does not need to be spent out by the end of each fiscal year and is used currently to do things like maintenance and development of GPO’s content management system govinfo.gov (nee Federal Digital System or FDsys). the draft bill deletes those budgetary line items and instead uses only the revolving fund. Ok, one might think this is good because it simplifies GPO’s budget.

    But in reality, this puts GPO’s budget on more shaky grounds. Congress does not fund anything unless it is specifically written into the US Code. As Peggy rightly points out, this “would restrict printing of core titles such as the United States Statutes at Large and the Congressional Record.”

    But also hidden in this section is subsection 2, which states:

    “(2) Capital provided by the Public Printer by capitalizing (at fair and reasonable values determined by the Public Printer in consultation with the Comptroller General of the United States) the current inventories, plant and building appurtenances, except building structures, and land, equipment, and other assets of GPO.”

    Then there’s § 103. (b) (2) RECEPTION AND REPRESENTATION EXPENSES, which states that the Public Printer may use the revolving fund “for official reception and representation expenses, as well as expenditures for meals, entertainment, and refreshments in connection with official training sessions.” There are already very strict rules in place for federal employees regarding travel and expenses. Why is this subsection even there if not to let the Public Printer skirt those rules?

    This certainly makes it sound like the bill writer(s) are planning for the eventuality where GPO will be forced to sell off its inventories, plant and building “appurtenances” in order to fund itself. This is a sure way to privatize GPO functions.

  • § 107. Authority to issue regulations

    What this means:

    While many in the library community support the idea of giving GPO the ability and “flexibility” to promulgate federal regulations in order to set up rules for executive agencies and their publishing practices, GPO regulatory authority is problematic. The 1983 Chadha court decision (INS v. Chadha, 462 U.S. 919, 952) found that the legislative branch (under which GPO falls) can only affect the executive branch through legislation. So, giving “regulatory authority” to GPO will most assuredly be immediately struck down by the courts as unconstitutional.

    There needs to be a way in Title 44 to get the 440+ executive agencies and commissions to collaborate with the GPO in providing free public access to government information and tackle the large and growing fugitive documents problem, but this is not the way to do it. Congress simply needs to pass a law like the Access to Congressionally Mandated Reports Act (HR 4631) currently wending its way through the House.

  • § 303. Delegation of authority

    The bill would give the Clerk of House and the Secretary of the Senate the ability to contract out work w/out GPO’s approval or knowledge (see p36 of the draft bill “(b) SPECIAL RULE FOR DELEGATION OF AUTHORITY REGARDING PRODUCTS SUBJECT TO CONGRESSIONAL PRINTING AND BINDING PROGRAMS.”)

    What this means:

    This section gives printing and binding/delegation of authority to Congress and potentially cuts GPO out of the loop of 99% of all agency printing, thus expanding the fugitives problem and eroding the chances of building and maintaining any semblance of a “national collection.” The section lets agencies apply to do work themselves under a threshold of $150k, which happens to be the vast majority of all agency orders that currently go through GPO. While there is wording to the effect that IDPs should be included into the “National Collection,” many more executive branch titles will not fall within GPO’s purview. Rather than unifying production — which I remind readers is critical to alleviating the massive Fugitive document problem! — this section would balkanize GPO’s work and devolve printing/reproduction back to the agencies. This will be a field day for duplicators/manufacturers, but publication costs to GPO will go through the roof. It’ll go from 1 contracting system (GPO contract/specs system) to hundreds of places to find contacts across executive agencies (see John Walters’ excellent article “‘Toy’ presses and the rise of fugitive U.S. government documents” in the Journal of Government Information 21(5) (September 1, 1994), p.413–35, for a full historical blow-by-blow account of the last time the executive branch had free printing reign). It would also blow big holes in GPO’s revenues, forcing it to have to cut overhead costs, personnel, facilities etc (see § 103. Revolving fund). GPO would no longer have the revenues needed — not to mention control of the federal printing process — to support public access and the FDLP!

Our reading of chapters 1 and 3 of the draft bill comports with Peggy Jarrett’s analysis and seems to us like a roadmap for how to disassemble an agency: contract out the work, get rid of “surplus machinery”, retirement packages to staff etc. Where’s the library program when this happens? If this “reform” bill is passed as written, it will result in a hollowed-out GPO with a shiny FDLP program. This is NOT a bill that the library community should support without massive rewrites to erase all of the poison pills from the text in chapters 1 and 3.

Title 44 of the United States Code governs “public printing and documents.” It establishes GPO as the agency that publishes and distributes federal information from all three branches of government. Title 44 defines government information and in Chapter 19, it establishes the FDLP, a partnership between the government and libraries to provide access to and preservation of government information.  Of the over 1100 depository libraries, about 200 are law libraries – law school, government, state, and court libraries.

The draft bill, dated December 11, 2017, and expected to be marked up in January by the House Committee on House Administration (CHA) is “to amend title 44, United States Code, to reform the organization, authorities, and programs relating to public printing and documents, including the Federal Depository Program.” It is a complete rewrite of the entire title. Although there is some good language about digital information and recognition of the need for authentication and preservation, there are many very concerning sections. The bill would allow for privatization of government information. It would restrict printing of core titles such as the United States Statutes at Large and the Congressional Record. It would weaken the geographic distribution and preservation of print and limit the number of depository libraries providing public access. Oddly, the bill would also change the name of GPO back to Government Printing Office and change the title of the Director back to Public Printer.

The possibility of privatization raises a huge red flag for law librarians and legal researchers. Government information – especially the law – should not be officially published by a commercial publisher, even if public access is somehow guaranteed. Eliminating the requirement that GPO produce government publications takes the federal government out of the business of making sure we, the people, have access to the information of our democracy – the information produced when laws are made, regulations promulgated, guidance issued, and the basic work of government takes place.

via Legislation Alert: Worrisome Changes to Government Publications Are Possible – LLRX.

CC BY-NC-SA 4.0 This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

1 Comment

  1. The Depository Library Council just released their comments on Title 44 draft bill that largely echo our analysis. In short, this is a bad bill that needs a LOT of work to get it to the point where public access, preservation, FDLP and the national collection are all strongly defined, supported, and maintained.

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