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[Note: We wrote this analysis based on the text of the draft bill of December 1, 2017. Just before posting we received a new draft bill dated December 11, 2017. A quick comparison shows few significant changes between the two bills, but there are some improvements (we note one below.) We encourage you to suggest improvements directly to the CHA (see “Action” at the end of this post.]
We now have a draft bill (dated 12/11/2017) proposing revisions to Title 44 of the U.S. Code. It is, indeed, a draft with inconsistencies and some awkward and confusing language. Also, the marked up by the Committee on House Administration that was supposed to happen on Wednesday December 13, 2017 has now been postponed until some time in January, 2018. Nevertheless, the broad outlines of the intentions of the bill are clear. We provide below a first look at this draft bill, focusing on broad policies rather than detailed specifics.
A complete rewrite
The bill does not tweak the existing law, but throws it out and rewrites significant portions of the law. Specifically, it throws out chapters 1, 3, 5, 7, 9, 11, 13, 17, and 19 that define the Depository Library Program along with Congressional/Executive/Judicial printing and binding, the Joint Committee on Printing, the Government Publishing Office, and the sales program, and inserts in its place 3 giant chapters defining the “Government Printing Office” (yes, it changes the name back to "printing office"), “Implementation of Authorities,” and “No-fee public access to government information” (which includes the FDLP and GPO’s "online repository"). It also evidently drops chapter 41 that defines access to federal electronic information and sets up FDsys/govinfo.gov.
The bill instantiates into law GPO’s worst policies. It does improve provisions for long-term free access and digital preservation, but it does so inadequately and with explicit loopholes that make those provisions nearly worthless. The bill contains provisions that would be very useful if they were enforceable, but it removes the already almost non-existent enforcement in the current law. In short, it is a bad bill with some nice language thrown in to make it sound better than it is. A spoonful of sugar to make the medicine go down, as it were.
As we have suggested, there are four principles that, we believe, must be supported by any revision of Title 44.
Below we analyze the bill’s effect on those principles and the other weaknesses of the bill.
I was struck by the data visualization in today’s NY Times UpShot column which showed just how much impact the “tax cut” bill would have on government services across the federal government for at least the next 10 years! “If Congress passes its tax bill and then takes no other action, the funding for dozens of federal spending programs could be cut — in many cases to nothing — beginning next year.”
Of course the biggest bubble/cut would occur to Medicare, with a sequesterable amount of $25.5 billion for 2018. As I scrolled down to the table listing the 228 agencies and programs which would be cut in 2018, the 4th one down is GPO’s Business Operations Revolving Fund, which could be cut $2 million in 2018, with cuts for 10 years. $2 million doesn’t sound like a lot of money, but GPO only requested $8,540,000 for the revolving fund for FY18. That’s a 25% cut! The revolving fund pays for improvements to GPO’s FDsys (and its successor system, govinfo) as well as other essential IT projects and things like enhancing the cybersecurity of GPO’s IT systems and other necessary physical infrastructure projects.
GPO is already working with a shrinking number of employees and a bare bones budget which has been flat or cut over the last 10 years. GPO programs — including the Federal Depository Library Program (FDLP)! — can NOT be sustained if this “tax cut” bill is passed.
With passage of this “tax cut” bill, GPO’s demise is no longer hypothetical. What will FDLP libraries do in that case? Does GPO have a formal succession plan or escrow arrangements (key components of a Trusted Digital Repository audit!)? And what will FDLP libraries do to maintain critical access to and preservation of government information going forward?
We need EVERY librarian to contact their representatives early and often and let them know what devastating effects this “tax cut” bill will have — on libraries yes, but on so many critical programs from Medicare to flood insurance, farm security, meals on wheels, Women, Infants and Children (WIC) program, and so many other programs across the Federal government.
According to the Congressional Budget Office, the deficit increase from the tax bill would be large enough — $1.5 trillion over 10 years — that spending for the unprotected programs would be reduced to zero next year and nearly zero over the next nine years.
Each bubble above represents the size of an automatic budget cut that could take place next year.
The Statutory Pay-as-You-Go Act of 2010, or Paygo, is an Obama-era update of a rule first enacted under President George H.W. Bush. It requires that legislation that adds to the federal deficit be paid for with spending cuts, increases in revenue or other offsets.
UPDATE 11/28/2017: The audio of our interview is now safely preserved and available at the Internet Archive!
Our pals Gary Colmenar and Elizabeth Robinson cohost the radio show “No Alibis” on KCSB Santa Barbara wednesdays from 9am – 11am. No Alibis is a “Critical look at news, both domestic and international, from the dystopian to the utopian.” And this Wednesday November 22 at around 9:30am Pacific, you’ll have your chance to hear Shari Laster and I wax utopian about all things Title 44. Stream it live over the internet! If you can’t tune in at 9:30am (and really, what else do you have to do at that time?!) we’ll be posted the audio for your listening pleasure shortly after the show is done.
And of course, as any govinfo wonk worth her salt, we gave Gary and Elizabeth some background readings so they’ll be able to keep their heads above the weeds.
- Sign the petition “Protect the public right to govt information: help preserve and expand Title 44”
- Title 44 and the Uncertain Future of Free Public Access to Government Info in the US. Strengthening the Discussions about Title 44. DLF interview with Jim Jacobs.
- Blind Spots and Broken Links: Access to Government Information. by James R. Jacobs. [PDF with speaker notes]. Presentation at program on “Open Government: Current Trends and Practices Concerning FOIA, Open Access, and Other Post-Wiki-Leaks Issues” sponsored by the Federal & Armed Forces Libraries Round Table at the 2015 annual meeting of the American Library Association.
- What are we to Keep? James R. Jacobs. Documents to the People (DttP), Spring 2015, p 13-19.
- Born-Digital U.S. Federal Government Information: Preservation and Access (archived PDF copy on FGI). 2014. Prepared by James A. Jacobs for Leviathan: Libraries and Government Information in the Era of Big Data.
“although the exact number of USDA publications could not be determined, the amount would be a small percentage because GPO focuses most of its efforts on congressional publications.”
We just came across this recent report of the GPO Inspector General (IG) called “Additional Information Needed for Ensuring Availability of Government Information Through the Federal Depository Library Program” (archived copy). Though this report was published the week before the recent Fall ’17 Depository Library Conference, it was not mentioned at all at conference, though there was information within the report which would have been incredibly useful for the Title 44 discussion held over the bulk of the first 2 days of conference.
There were some positives mentioned in the report. For example, I hadn’t known that GPO and the Library of Congress are currently working on a project to develop new strategies for increasing discovery and access to Government information across federal agencies. the project’s goals are to identify “top-level agency stakeholders in agency publishing,” make agencies aware of their Title 44 responsibilities and work on preservation policies for agency publications and especially born-digital materials.
Additionally, according to GPO, the approach it takes in finding agency publications is a “proactive” one. In general, the approach consists of: 1) providing a web presence and means for agencies to notify GPO of published documents; 2) directly contacting agency representatives, 3) reaching out to agency customers, and 4) web harvesting.
- “Some” Agencies Did Not Provide List of Publications to GPO, as Required (my quotes, the report did not specify a number.)
- GPO Policies and Procedures Need to be Detailed to Support Program Goals
- Strengthening Processes that Capture Government Publications
Although the GPO Inspector General “consider[s] management’s comments responsive to the three recommendations, which are considered resolved but will remain open until implementation of the proposed corrective actions,” we’re disturbed by some of the IG’s findings, especially in regard to the seeming nonchalance of GPO toward executive agency fugitive documents in general and the USDA in particular.
Though GPO has a supposedly “proactive” approach to capturing government publications, it seems that an inordinately large amount of executive publications are not made available to the FDLP, or otherwise collected, described or preserved (see the IG report’s analysis of USDA). Their Web harvesting program only has 6 Web archived USDA publications. And their outreach to agency customers is woefully inadequate as it seems from this report that very few agencies — or even the federal librarians working in those agencies! — are aware of their Title requirements, OMB Circular No. A-130, and other governing compliance requirements, have been contacted by GPO staff or even know that GPO exists. Case in point, on page 10 of the report, the Chief Collection Development Librarian for the U.S. National Agricultural Library had “identified and provided OIG with a list of 3,299 publications he believed should be included in the FDLP. The Librarian told us the information was not provided to GPO and that GPO had not contacted the Library for a list of issued publications.”
On a side — equally disturbing — note, we also found that a) none of the GPO IG’s investigation outcomes and only a very small percentage of the audits are available online; b) only the GPO IG’s semiannual reports to Congress are available on the new Oversight.gov site whose tagline is “all federal Inspector General reports in one place;” and c) even more worrying, NONE of them are cataloged in the CGP though they are hosted on GPO’s Website and presumably are within the scope of the FDLP. It seems like a no-brainer for ALL GPO IG REPORTS to be hosted on govinfo.gov in the GPO Collection.
We hope that GPO will be taking all necessary steps to implement the proposed corrective actions laid out by the IG. We will be sending this post and the IG report to Depository Library Council in the hopes that DLC can stress to GPO the ongoing importance of both digital and physical collection development activities to libraries and the public.
“Congress established the Federal Depository Library Program (FDLP) to provide free public access to Federal Government information. Creation, distribution, retention, and preservation of information has evolved from a simple tangible, paper-based process to now include digital processes managed primarily through various information technologies. Regardless of format, FDLP publications must conform to the definition of Government publications as defined in section 1902, title 44 of the United States Code (44 U.S.C. § 1901), GPO policy, and the Office of Management and Budget (OMB) Circular A-130, that is, generally all published Federal information products, regardless of format or medium, that are of public interest or educational value or produced using Federal funds.
The transition to digital information raises a number of issues resulting in more diverse responsibilities for GPO. In that context, the Office of Inspector General (OIG) conducted a review to determine the steps GPO took for ensuring information developed at the expense of taxpayers was made available to the public through the FDLP. To address our objective, in general, we tested compliance with select sections of Title 44, reviewed program goals and achievements, and tested processes used to capture Government publications at a select agency—the U.S. Department of Agriculture (USDA).”
GPO Director Davita Vance-Cooks is leaving GPO for the private sector. Congratulations to Ms Vance-Cooks. The first African-American and first woman to lead the agency, she did so ably for 6 years.
While this shouldn’t be a surprise — GPO directors (nee “public printers”) are political appointees named by Presidents after all — the timing of this announcement is perhaps problematic given that the community is in the midst of discussions and possible legislation to change Title 44 of the US code, impacting both FDLP libraries and the operations and funding of GPO itself.
With that context in mind, the position of GPO director is extremely important in helping to drive positive legislative change while mitigating the possible negatives that always come out in the legislative process. The current GPO policies that are supportive of FDLP could literally change overnight with a different director. This makes the Title 44 negotiations all the more critical as the code is the force of law which tells GPO what they can and can’t do. So it’s important to keep the momentum going and get good policy into Title 44; and not just Chapter 19, but ALL of the chapters which have implications for GPO budgets and ability to continue to maintain FDLP activities.
The naming of Jim Bradley — a good ally to the FDLP program! — as acting director will hopefully ease the transition. And, since he’s been active in the title 44 debate, GPO and the FDLP hopefully won’t miss a beat.
The U.S. Government Publishing Office (GPO) Director Davita Vance-Cooks has announced her departure from Federal service to accept a job in the private sector. By law, GPO Deputy Director Jim Bradley assumes the duties of Acting GPO Director until a replacement is appointed.
Vance-Cooks was nominated by President Obama and confirmed by the Senate in 2013 to be the 27th Public Printer of the United States. Prior to confirmation, she served as Acting Public Printer for 19 months. A seasoned business executive with more than 35 years of private sector and Federal management experience, she was the first woman and the first African-American to lead the agency.