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                                                      Calendar No. 1088
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-525

======================================================================


        PRESIDENTIAL HISTORICAL RECORDS PRESERVATION ACT OF 2008

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 3477


    TO AMEND TITLE 44, UNITED STATES CODE, TO AUTHORIZE GRANTS FOR 
             PRESIDENTIAL CENTERS OF HISTORICAL EXCELLENCE





               November 19, 2008.--Ordered to be printed




        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas              NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana          TOM COBURN, Oklahoma
BARACK OBAMA, Illinois               PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri           JOHN WARNER, Virginia
JON TESTER, Montana                  JOHN E. SUNUNU, New Hampshire

                  Michael L. Alexander, Staff Director
                     Kevin J. Landy, Chief Counsel
              Adam R. Sedgewick, Professional Staff Member
  Eric S. Hopkins, Professional Staff Member, Subcommittee on Federal 
  Financial Management, Government Information, Federal Services, and 
                         International Security
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
                    John K. Grant, Minority Counsel
                  Trina Driessnack Tyrer, Chief Clerk




                                                      Calendar No. 1088
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-525

======================================================================



 
        PRESIDENTIAL HISTORICAL RECORDS PRESERVATION ACT OF 2008

                                _______
                                

               November 19, 2008.--Ordered to be printed

                                _______
                                

Mr. Lieberman, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 3477]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 3477) to amend 
title 44, United States Code, to authorize grants for 
Presidential Centers of Historical Excellence, having 
considered the same, reports favorably thereon with amendments 
and recommends that the bill, as amended, do pass.

                         I. Purpose and Summary

    S. 3477, the ``Presidential Historical Records Preservation 
Act of 2008'' seeks to promote funding to preserve, digitize, 
and provide online access to documents of historical 
significance that may not have received funding in the past. 
The bill would modify an existing grant program administered by 
the National Historical Publications and Records Commission 
(``the Commission'') to specify that grants can support public-
private partnerships to preserve presidential documents that 
are not included in the existing Presidential library system. 
The bill also seeks to make other key improvements to the 
system for archiving Presidential documents.
    As reported, the bill establishes a process for providing 
grants to institutions honoring former presidents that are not 
federally maintained under the Presidential Libraries Act of 
1955. Institutions applying for funds under this process must 
be either not-for-profit or owned by a state or local 
government. In addition, applicants must be able to prove, 
among other qualifications, that: Facilities are appropriate to 
preserve the historical documents; free public access can be 
provided; and matching funds have been raised from non-federal 
sources. Activities conducted under the grant process will be 
included in the National Archives budget filings.
    The bill also makes improvements in the overall 
presidential library program. It would require the Archivist to 
develop a prioritized capital improvement plan for federally 
maintained presidential libraries for all investments over $1 
million. The capital improvement plan would be provided to 
Congress annually with a prioritized list of necessary repairs 
and the current cost estimate for the investment.
    S. 3477 also would increase the amount of money that must 
be raised before a private entity constructing a presidential 
library transfers the property to federal government ownership. 
Private entities currently raise an endowment to cover future 
costs associated with repairs and maintenance. However it has 
come to the Committee's attention that the existing amount 
required for this endowment is insufficient for many libraries, 
forcing Congress to approve additional spending on emergency 
repairs for older institutions.
    The bill requires the Archives to report 270 days after the 
enactment of this bill on new methods to preserve presidential 
materials that could reduce the financial burden on the federal 
government, improve preservation of records, and reduce the 
delay in public access to the records held by the library.
    The bill also makes structural changes to the Commission by 
placing eight-year term limits on members and requires members 
to recuse themselves from votes that could lead to a conflict 
of interest.
    Furthermore the bill establishes an independent advisory 
committee to review the progress of grants that collects, 
transcribes, and annotates the materials written and received 
by key statesmen such as Thomas Jefferson and Benjamin 
Franklin. These ``Founding Fathers'' projects have been funded 
by the Commission since 1964. However, despite their 
importance, many of these projects are not expected to be 
finished for decades. In light of this, the bill requires that 
that these documents be published online through a single Web 
portal that can be updated with future publications as they are 
completed.\1\
---------------------------------------------------------------------------
    \1\The Founding Fathers' Papers: Ensuring Public Access to our 
National Treasures Before the United States Senate Judiciary Committee, 
110th Cong. (2008) (statement of the Honorable Allen Weinstein, 
Archivist, National Archives and Records Administration).
---------------------------------------------------------------------------

                II. Background and Need for Legislation

    Through the Presidential Libraries Act of 1955, the 
National Archives and Records Administration currently manages 
and maintains 12 Presidential libraries (from President Hoover 
to President Clinton). These libraries are privately 
constructed, deeded to the federal government, and store the 
official records and papers of the former presidents. The 
federal government pays to maintain these institutions.
    However, there are many historically significant documents 
associated with presidents that preceded President Hoover which 
are not maintained by federally owned archival depositories. 
The Committee believes that it is important to preserve and 
enhance public access to these records. One way to achieve this 
goal is through a public-private partnership that would 
preserve the documents without financially burdening the 
federal government. The Committee recognizes that there are 
non-profit organizations in America that could undertake the 
preservation of presidential records and achieve this goal.
    Therefore, under this legislation grants could be awarded 
by the National Historical Records and Publications Commission 
on a competitive basis to enhance preservation and public 
access to historical presidential records that are owned by 
private libraries. Entities competing for grants under this 
bill would be required to receive matching grants from non-
federal sources; ensure a plan is in place to preserve and 
provide public access to the historical documents; provide a 
facility that is capable of appropriately preserving the 
documents; and provide free public access to the documents.
    As it carries out the legislation, the Commission must 
provide the Senate Committee on Homeland Security and 
Governmental Affairs a report identifying current entities that 
fit these requirements and would be able to apply for grants.
    In addition, the Committee recognizes that some of the 
prior grant awards by the Commission have gone to universities 
and other nonprofits to transcribe original documents from key 
statesmen such as Thomas Jefferson and John Adams. Many of 
these projects have taken years to complete and still require a 
significant amount of time and money. For example, the project 
to publish John Adam's papers has been ongoing for 52 years and 
is not expected to be completed until 2049, or 181 years after 
his death.\2\
---------------------------------------------------------------------------
    \2\Only Alexander Hamilton's papers have been completed. According 
to the National Historic Publication and Records Commission, the papers 
of Thomas Jefferson will not be completed until 2025, the Washington 
papers in 2023, the papers of Benjamin Franklin and James Madison in 
2030, and the Adams papers by 2049.
---------------------------------------------------------------------------
    In response such delays, in 2008 Congress passed a law 
which directed the Archivist to develop a plan that will 
accelerate this process and leverage digitization technologies 
to provide online access to anyone, anywhere to view these 
historically valuable documents.\3\ S. 3477 builds on that 
requirement and allows the Archivist to enter into an agreement 
to provide online access to the published volumes of our 
founding fathers and other prominent historical figures. It is 
the intent of the Committee that all current and future 
publications of the founding fathers be freely accessible, 
easily searchable, and include the analyses provided by the 
documentary editors. In addition, the bill will allow the 
Archivist to establish an advisory committee to review the 
current editorial projects being funded and, in consultation 
with the officials overseeing these editorial projects, 
recommend completion goals that will not sacrifice quality. The 
advisory committee should operate independently of the 
Commission and report directly to the Archivist.
---------------------------------------------------------------------------
    \3\Division D--Financial Services and General Government and 
Appropriations Acts, 2008 Title V, Pub. L. No. 110-161.
---------------------------------------------------------------------------
    Also, an investigation by the Subcommittee on Federal 
Financial Management, Government Information, Federal Services, 
and International Security into the Commission found potential 
structural issues with the Commission that may hinder the 
organization. For instance members on the Commission who 
select, review, and fund many of the grants have served for 
decades andrepresent some of the entities receiving the grants. 
Therefore, S. 3477 creates term limits of eight years for all members 
except for permanent ex officio members and establishes a recusal 
process that will prevent members from voting on issues that may 
benefit them or an entity they represent. These requirements will be 
retroactive and effective for current and future members of the 
Commission.
    Further, Congress has increasingly been forced to designate 
spending for required maintenance and repairs needed for 
specific presidential libraries, some of which have been 
emergency in nature. Some of these library facilities have 
unexpectedly required millions of dollars in additional funding 
in order to prevent the destruction of priceless artifacts from 
weakened and leaking roofs, substandard infrastructure, and 
improper temperature controls.\4\ Unfortunately there has not 
been an overall approach for addressing these problems, leaving 
some libraries needing critical repairs. S. 3477 requires the 
Archivist to provide Congress with an annual capital 
improvement plan for all presidential libraries currently owned 
and operated by the federal government. This capital 
improvement plan will prioritize all capital improvements 
estimated to cost more than $1 million and provide 
justifications for these cost estimates. Congress would then be 
able to better direct funding to the most urgent repairs.
---------------------------------------------------------------------------
    \4\John F. Kennedy Library and Lyndon B. Johnson Library: S. 3260 
Financial Services and General Government Appropriations Bill, p. 82-
83.
---------------------------------------------------------------------------
    In addition, S. 3477 will increase the endowment that a 
private foundation associated with a future president must 
provide for future maintenance and repair of that presidential 
library. The Subcommittee on Federal Financial Management's 
investigation found that many of the endowments provided for 
previous libraries insufficiently covered the costs of both 
expected and unexpected repairs on the facilities.
    Lastly, the Subcommittee on Federal Financial Management 
held a hearing in May 2008 that revealed that, not only is 
there a huge financial burden on the federal government to 
maintain presidential libraries, but also that much of the 
artifacts are inappropriately stored or unavailable for public 
dissemination.\5\ Sometimes, records as far back as a decade or 
more are still unavailable to be accessed due to the current 
archival process. S. 3477 requires the Archives to submit to 
Congressional oversight committees a report to reduce the 
financial burden on the federal government, improve the 
preservation of presidential records, and reduce the delay in 
public access to all presidential libraries.
---------------------------------------------------------------------------
    \5\National Archives Oversight: Protecting Our Nation's History for 
Future Generations Before the Senate Subcommittee on Federal Financial 
Management, Government Information, Federal Services, and International 
Security, 110th Cong. (2008) (testimony of Thomas Blanton, Director, 
National Security Archives).
---------------------------------------------------------------------------
    The Committee recognizes that the Commission has an 
overwhelming mission to preserve historically significant 
state, local, and national records. However, in each of the 
past four fiscal years, the Commission has received 
appropriations below its authorized levels. The Committee 
believes appropriations should be provided at authorized levels 
in order to empower the Commission to fulfill its 
responsibilities. Further, the Committee does not intend to 
supersede existing categories of grants administered by the 
Commission. Instead, discretion shall be left to the Commission 
as to what eligible programs shall take priority out of 
existing funds.

                        III. Legislative History

    S. 3477 was introduced by Senator Warner and Senator Webb 
on September 11, 2008, and referred to the Subcommittee on 
Federal Financial Management, Government Information, Federal 
Services, and International Security. S. 3477 was polled out of 
Subcommittee on September 12 and the full Committee considered 
S. 3477 on September 18, 2008. The Committee ordered the bill 
reported favorably, as amended by a Carper-Warner substitute 
amendment. Members present for the vote were Lieberman, Levin, 
Akaka, Carper, Pryor, McCaskill, Collins, Stevens, Domenici, 
Warner, and Sununu.
    The bill was signed by the President on October 13, 2008 
and became Public Law No. 110-404.

                    IV. Section-by-Section Analysis


Section 1. Short title

    The Act is entitled the ``Presidential Historical Records 
Preservation Act of 2008.''

Section 2. Grants for Presidential centers of historical excellence

    This section modifies the National Historical Publications 
and Records Commission grant program to provide grants to 
preserve, and provide public access to, historical documents of 
Presidents not currently covered under the Presidential 
Libraries Act of 1955.
    The section stipulates that amounts received under the 
grants provided in this section shall be used only to promote 
the preservation of, and public access to, historical records 
or documents relating to any former President covered under 
this Act and may not be used for the maintenance, operating 
costs, or construction of any facility to house these 
historical records.
    In addition, the section establishes the following criteria 
an entity must meet in order for the National Historical 
Publications and Records Commission to award a grant. An entity 
must:
          (i) Possess historical presidential records that the 
        Commission considers appropriate to preserve;
          (ii) Have appropriate facilities and space to 
        preserve and provide public access to the records;
          (iii) Preserve and provide public access to the 
        records at no expense to the general public;
          (iv) Develop educational programs to educate the 
        public and promote the presidential records;
          (v) Raise matching funds from non-federal sources in 
        support of preserving and providing public access to 
        the presidential records;
          (vi) Coordinate with federal programs or activities 
        to enhance access to the presidential records;
          (vii) Coordinate with non-federal programs or 
        activities to enhance access to the presidential 
        records; and
          (viii) Develop a plan to preserve and provide public 
        access to the presidential records.

Section 3. Term limits and recusal for Commission members

    Subsection (a) establishes term limits of eight years for 
all members except for the Archivist and the Librarian of 
Congress who are permanent ex officio members. These term 
limits apply to current and future members after the bill's 
enactment.
    Subsection (b) requires that members of the Commission 
recuse themselves if the matter being voted on poses or could 
pose a conflict of interest for the members or an entity they 
represent.

Section 4. Online access to the founding fathers' papers

    Subsection (a) directs the Archivist to enter into a 
cooperative agreement to provide online access to the current 
and future published volumes of the founding fathers' papers 
and other prominent historical figures.
    Subsection (b) allows the Archivist, as head of the 
National Historical Publications and Records Commission, to use 
funds from the Commission to support online access to the 
current and future published volumes of the founding fathers' 
papers. The Archivist must submit an annual report to Congress, 
no later than December 31st of each year, on the cooperative 
agreement provisions used to support subsection (a).

Section 5. Accelerated completion of the founding fathers' papers

    Subsection (a) establishes an independent advisory 
committee outside of the Commission to review the progress of 
the founding fathers' editorial projects funded by the 
Commission and report to the Archivist on whether these 
projects are achieving their performance goals, reasons why 
projects may not be achieving their performance goals, and 
recommended funding levels for these projects.
    Subsection (b) directs entities receiving funding by the 
Commission for editorial projects to annually provide the 
advisory committee established under subsection (a) information 
regarding their total funding level from both public and 
private sources, activities undertaken by this funding, and 
performance metrics associated with the funding.
    Subsection (c) describes the details of the advisory 
committee established under subsection (a). This subsection 
directs the Archivist to appoint three nationally recognized 
historians for no more than two consecutive 4-year terms and 
requires that the committee meet at least once a year and 
provide a report to Congress on the information analyzed under 
subsection (b). This report must recommend legislative or 
executive actions that will accelerate the completion of the 
founding fathers' papers.

Section 6. Capital improvement plan for Presidential archival 
        depositories and report

    Section 6 requires the Archivist to submit to the 
Committees on Appropriations in the Senate and the House of 
Representatives a capital improvement plan for all Presidential 
archival depositories. This capital improvement plan should 
prioritize all capital projects needed at the facilities that 
are estimated to cost more than $1 million. The plan should 
include the current cost estimate of each capital project, the 
basis for the estimate, any previous estimates for the capital 
project, and a completion date. If the capital project has not 
been started, then the plan should include an expected start 
date. The Archivist shall update the capital improvement plan 
annually and submit it along with the President's budget 
request and provide an explanation for any changes in the cost 
estimates of the capital projects.
    Subsection (b) increases the percent for calculating the 
archival endowment used for future maintenance and repairs of 
the facility, land, and equipment from 40 percent to 60 
percent.
    Subsection (c) requires that the Archivist submit to 
Congressional oversight committees a report that provides 
alternative models for presidential archival depositories that 
would reduce the financial burden on the federal government, 
improve the preservation of Presidential records, and reduce 
the delay in public access to all Presidential records. This 
report shall be submitted no later than 270 days after the 
enactment of this act.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirement of paragraph 11(b)(1) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill. The Committee 
believes that the bill strengthens government management 
practices and will result in reduced costs for regulated 
entities. The legislation will not result in additional 
regulation, increased economic impact, adverse impact on 
personal privacy, or additional paperwork on any individuals or 
businesses.

                      VI. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the Committee bill, as reported, are shown as follows (existing 
law proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *


TITLE 44--PUBLIC PRINTING AND DOCUMENTS

           *       *       *       *       *       *       *


CHAPTER 21--NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

           *       *       *       *       *       *       *



Sec. 2112. Presidential archival depository

    (a) * * *

           *       *       *       *       *       *       *

    (g) For purposes of subparagraphs (A)(ii), (B)(i)(II), and 
(B)(ii)(II) of paragraph (3) the percentage of [40] 60 percent 
shall apply instead of 20 percent.

           *       *       *       *       *       *       *


Sec. 2120. Online access of founding fathers documents

    (a) The Archivist may enter into a cooperative agreement to 
provide online access to the published volumes of the papers 
of--
          (1) George Washington;
          (2) Alexander Hamilton;
          (3) Thomas Jefferson;
          (4) Benjamin Franklin;
          (5) John Adams;
          (6) James Madison; and
          (7) Other prominent historical figures, as determined 
        appropriate by the Archivist of the United States.
    (b) Transfer of Funds.--
          (1) In general.--The Archivist of the United States, 
        in the role as chairman of the National Historical 
        Publications and Records Commission may enter into 
        cooperative agreements pursuant to section 6305 of 
        title 31, United States Code, that involve the transfer 
        of funds from the National Historical Publications and 
        Records Commission to State and local governments, 
        tribal governments, other public entities, educational 
        institutions, or private nonprofit organizations for 
        the public purpose of carrying out section 2120 of 
        title 44, United States Codes.
          (2) Report.--Not later than December 31st of each 
        year, the Archivist of the United States shall submit 
        to the Committee on Homeland Security and Governmental 
        Affairs of the Senate and the Committee on Oversight 
        and Government Reform of the House of Representatives a 
        report on the provisions, amount, and duration of each 
        cooperative agreement entered into as authorized by 
        paragraph (1) during the preceding fiscal year.

           *       *       *       *       *       *       *


CHAPTER 25--NATIONAL HISTORICAL PUBLICATIONS AND RECORDS COMMISSION

           *       *       *       *       *       *       *



Sec. 2501. Creation; composition; appointment and tenure; meetings

    (a) * * *
    (b) * * *
          (1) The members appointed under subsection (a) shall 
        be appointed for not more than 2 terms of 4 years, 
        except that--
                  (A) a member appointed under subsection 
                (a)(1)(D) shall be appointed for [a term] not 
                more than 4 terms of 2 years; and
                  (B) The Archivist and the Librarian of 
                Congress are permanent ex officio members.

           *       *       *       *       *       *       *

    (c) * * *
    (d) Recusal.--Members of the Commission shall recuse 
themselves from voting on any matter that poses, or could 
potentially pose, a conflict of interest, including a matter 
that could benefit them or an entity they represent.

           *       *       *       *       *       *       *


Sec. 2504. Duties; authorization of grants for historical publications 
                    and records programs; authorization for 
                    appropriations

    (a) * * *

           *       *       *       *       *       *       *

    (f) Grants for Presidential Centers of Historical 
Excellence.--
          (1) In general.--The Archivist, with the 
        recommendation of the Commission, may make grants on a 
        competitive basis and in accordance with this 
        subsection, to eligible entities to promote the 
        historical preservation of, and public access to, 
        historical records and documents relating to any former 
        President who does not have a Presidential archival 
        depository currently managed and maintained by the 
        Federal Government pursuant to section 2112 (commonly 
        known as the ``Presidential Libraries Act of 1955'').
          (2) Eligible entity.--For purposes of this 
        subsection, an eligible entity is--
                  (A) an organization described under section 
                501(c)(3) of the Internal Revenue Code of 1986 
                and exempt from taxation under section 501(a) 
                of that Code; or
                  (B) a State or local government of the United 
                States.
          (3) Use of funds.--Amounts received by an eligible 
        entity under paragraph (1) shall be used to promote the 
        historical preservation of, and public access to, 
        historical records or historical documents relating to 
        any former President covered under paragraph (1).
          (4) Prohibition on use of funds.--Amounts received by 
        an eligible entity under paragraph (1) may not be used 
        for the maintenance, operating costs, or construction 
        of any facility to house historical records or 
        historical documents relating to any former President 
        covered under paragraph (1).
          (5) Application.--
                  (A) In general.--An eligible entity seeking a 
                grant under this subsection shall submit to the 
                Commission an application at such time, in such 
                manner, and containing or accompanied by such 
                information as the Commission may require, 
                including a description of the activities for 
                which a grant under this subsection is sought.
                  (B) Approval of application.--The Commission 
                shall not consider or recommend a grant 
                application submitted under subparagraph (A) 
                unless an eligible entity establishes that such 
                entity--
                          (i) possesses, with respect to any 
                        President covered under paragraph (1), 
                        historical works and collections of 
                        historical sources that the Commission 
                        considers appropriate for preserving, 
                        publishing, or otherwise recording at 
                        the public expense;
                          (ii) has appropriate facilities and 
                        space for preservation of, and public 
                        access to, the historical works and 
                        collections of historical sources;
                          (iii) shall ensure preservation of, 
                        and public access to, such historical 
                        works and collections of historical 
                        sources at no charge to the public;
                          (iv) has educational programs that 
                        make the use of such documents part of 
                        the mission of such entity;
                          (v) has raised funds from non-Federal 
                        sources in support of the efforts of 
                        the entity to promote the historical 
                        preservation of, and public access to, 
                        such historical works and collections 
                        of historical sources in an amount 
                        equal to the amount of the grant the 
                        entity seeks under this subsection;
                          (vi) shall coordinate with any 
                        relevant Federal program or activity, 
                        including programs and activities 
                        relating to Presidential archival 
                        depositories;
                          (vii) shall coordinate with any 
                        relevant non-Federal program or 
                        activity, including programs and 
                        activities conducted by State and local 
                        governments and private educational 
                        historical entities; and
                          (viii) has a workable plan for 
                        preserving and providing public access 
                        to such historical works and 
                        collections of historical sources.

           *       *       *       *       *       *       *

    [(f)(1)] (g)(1) For the purposes specified in this section, 
there is hereby authorized to be appropriated to the National 
Historical Publications and Records Commission--

           *       *       *       *       *       *       *