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Pt. 6: Nonlawyer’s journey through Title 44: Requirements of depository libraries

This post, all earlier postings in this series, and my “not a lawyer” disclaimer can be found at http://freegovinfo.info/title44 or through our library under Nonlawyer’s Journey through Title 44.

In my last Title 44 installment, I covered 44 USC 1905. Today I vault over several sections relating to types of depository libraries to land on 44 USC 1909, Sec. 1909. Requirements of depository libraries; reports on conditions; investigations; termination; replacement. I don’t believe the sections I skipped are central to the Depository Library Program, but if you disagree, explain why in the comments or by e-mail to dnlcornwall AT alaska.net.

Back to section 1909. This is the section of the depository law that lays out the basic expectations of depository libraries. This is the minimum that members of the public should expect from depository libraries. If these expectations aren’t met, then there are ways to kick libraries out of the program. See more analysis after reading through 44 USC 1909:

ITLE 44–PUBLIC PRINTING AND DOCUMENTS

CHAPTER 19–DEPOSITORY LIBRARY PROGRAM

Sec. 1909. Requirements of depository libraries; reports on conditions; investigations; termination; replacement

Only a library able to provide custody and service for depository materials and located in an area where it can best serve the public need, and within an area not already adequately served by existing depository libraries may be designated by Senators, Representatives, the Resident Commissioner from Puerto Rico, the Commissioner of the District of Columbia,\1\ or the Governors of Guam, American Samoa, or the Virgin Islands as a depository of Government publications. The designated depository libraries shall report to the Superintendent of Documents at least every two years concerning their condition.
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\1\ See Transfer of Functions note below.
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The Superintendent of Documents shall make firsthand investigation of conditions for which need is indicated and include the results of investigations in his annual report. When he ascertains that the number of books in a depository library is below ten thousand, other than Government publications, or it has ceased to be maintained so as to be accessible to the public, or that the Government publications which have been furnished the library have not been properly maintained, he shall delete the library from the list of depository libraries if the library fails to correct the unsatisfactory conditions within six months. The Representative or the Resident Commissioner from Puerto Rico in whose area the library is located or the Senator who made the designation, or a successor of the Senator, and, in the case of a library in the District of Columbia, the Commissioner of the District of Columbia, and, in the case of a library in Guam, American Samoa, or the Virgin Islands, the Governor, shall be notified and shall then be authorized to designate another library within the area served by him, which shall meet the conditions herein required, but which may not be in excess of the number of depository libraries authorized by laws within the State, district, territory, or the Commonwealth of Puerto Rico, as the case may be.

(Pub. L. 90-620, Oct. 22, 1968, 82 Stat. 1285.)

Historical and Revision Notes

Based on 44 U.S. Code, 1964 ed., Sec. 86 (Jan. 12, 1895, ch. 23, Sec. 70, 28 Stat. 612; Aug. 9, 1962, Pub. L. 87-579, Sec. 6, 76 Stat. 354).

Transfer of Functions

Office of Commissioner of District of Columbia, as established under Reorg. Plan No. 3 of 1967, eff. Nov. 3, 1967 (in part), 32 F.R. 11669, 81 Stat. 948, abolished as of noon Jan. 2, 1975, by Pub. L. 93-198, title VII, Sec. 711, Dec. 24, 1973, 87 Stat. 818, and replaced by office of Mayor of District of Columbia by section 421 of Pub. L. 93-198.

Section Referred to in Other Sections

This section is referred to in section 1916 of this title.

Section 1909 places the following requirements on Federal Depository Libraries:

  • Must be able to provide custody for depository materials.
  • Must be able to provide service for depository materials.
  • Must make a biennial report on their condition to the Government Printing Office (GPO).
  • Must contain at least 10,000 books in their non-depository collections.
  • Must be open to the public.
  • Government publications which have been furnished to the library must be properly maintained

Looking at the law and the list above, it seems legally plain to this nonlawyer librarian that the very idea of “an all-electronic depository” where there is no custody of digital files is prohibited by Title 44. You cannot have a “depository library” if the library is not providing custody to at least some of the materials offered through Federal Depository Library Program.

By the same token, a library that had custody of materials but did not either offer some kind of access to them or process (catalog, etc) them would also be in violation of Title 44.

Other ways that a library could get into trouble would be not being open to the public. For example, a college library that was also a depository could not get away with only allowing the university community access to the college. If someone off the street can’t get into the collection, it’s not open to the public and therefore not compliant. However, GPO recognizes the security needs of depository libraries and does allow libraries to require identification to entry the library holding the depository collection.

Failing in its Title 44 responsibilities can put a depository library on a six-month probation period. If the problems are not fixed, the library can have its designation as a depository pulled. This would require the library to return all of the federal materials it has received through the program. Depository materials cannot be retained by the library because although libraries have custody of the material, the ownership remains with the federal government.

So how can GPO tell whether a library is meeting its depository requirements? The main way is through the biennial survey that GPO has libraries fills out every two years. Additionally, at least in law is the depository inspector program. This program is authorized by the part of Section 1909 that says “The Superintendent of Documents shall make firsthand investigation of conditions for which need is indicated and include the results of investigations in his annual report.” In truth though, this program has been moribund for years. Partly because the inspection process, though authorized by law, was too adversarial and encouraged libraries to hide their flaws. Mostly, it’s fallen flat because GPO is chronically underfunded and didn’t have the money to both inspect libraries and carry out their other Congressionally mandated activities. Since at least 2004, GPO has been trying the laudable experiment of hiring field-based consultants to replace depository inspectors. To date, funding has not been available for this program. If this has changed, I’d love to hear from someone.

That’s all I can find to say about Section 1909. Section 1910 covers the procedures for replacing depository libraries, which doesn’t interest me because libraries are replaced so rarely. So next time we will look at Sec. 1911. Free use of Government publications in depositories.

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