[Federal Register Volume 59, Number 69 (Monday, April 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8047]


[[Page Unknown]]

[Federal Register: April 11, 1994]


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UNITED STATES INFORMATION AGENCY

22 CFR Part 502

[Rulemaking No. 200]

 

Educational, Scientific and Cultural Material; World-Wide Free 
Flow (Export-Import) of Audio-Visual Materials

AGENCY: United States Information Agency.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Agency proposes new regulations governing its 
implementation of the Agreement for Facilitating the International 
Circulation of Visual and Auditory Materials of an Educational, 
Scientific and Cultural Character (Beirut Agreement of 1948). A recent 
decision by the United States Court of Appeals (9th Circuit) and 
Congressional enactment of legislation affecting the Agency's 
implementation of the Beirut Agreement indicate that new regulations be 
advanced.

DATES: Public comments will be accepted until May 11, 1994.

ADDRESSES: Stanley S. Colvin, Assistant General Counsel, Office of the 
General Counsel, room 700, United States Information Agency, 301 4th 
Street, SW., Washington, DC 20547.

FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Assistant General 
Counsel, Office of the General Counsel, room 700, United States 
Information Agency, 301 4th Street, SW., Washington, DC 20547, (202) 
619-6829.

SUPPLEMENTARY INFORMATION: Since its establishment in 1946, the United 
Nations Educational, Cultural, and Scientific Organization (UNESCO) has 
endeavored to promote the free flow and exchange of scientific and 
educational material between nations through the elimination of import 
and customs duties on such material. The Agreement for Facilitating the 
International Circulation of Visual and Auditory Materials of an 
Educational, Scientific, and Cultural Character (Third General Session 
of UNESCO; Beirut, Lebanon; 1948; 17 U.S.T. 1578), hereinafter, the 
``Agreement,'' is the first fruit borne by this international 
collaborative effort. The Agreement provides an exemption from import 
duties and licenses, special taxes, quantitative restrictions and other 
restraints and costs for certain types of audio-visual material.
    Adopted by UNESCO in 1948, the Agreement entered into force and 
effect August 12, 1954. Although an original signatory to the 
Agreement, United States ratification was delayed until May 26, 1960. 
Formal U.S. implementation of the Agreement was, in turn, delayed until 
passage of Public Law 89-634 on October 8, 1966. Pursuant to E.O. 
11311, responsibility for implementation of the Agreement was delegated 
to the Agency. Twenty-nine nations are signatory to the Agreement and 
an additional twenty-eight countries participate under the terms of the 
Agreement on an informal basis.
    The Agency implements and administers the Agreement in the case of 
exports through the issuance of a Certificate of International 
Educational Character. Material for which this Certificate has been 
issued is ordinarily afforded duty-free entry into countries 
participating in the Agreement. The Agency facilitates the duty-free 
entry of qualified audio-visual material into the United States through 
the authentication of a Certificate issued by a foreign government.
    Simply put, the Agreement covers educational, scientific, and 
cultural audio-visual material which is generally used for educational 
or instructional purposes. Pursuant to Article I of the Agreement, 
visual and auditory material shall be deemed to be of an educational, 
scientific, and cultural character:

    (a) When their primary primary purpose or effect is to instruct 
or inform through the development of a subject or aspect of a 
subject, or when their content is such as to maintain, increase or 
diffuse knowledge, and augment international understanding and 
goodwill; and
    (b) When the materials are representative, authentic, and 
accurate; and
    (c) When the technical quality is such that it does not 
interfere with the use made of the material.

    Under the Agreement, favorable import treatment has not been 
extended to material which has as its primary purpose or effect to 
amuse or entertain, to inform concerning timely current events, i.e. 
spot news, to stimulate the use of a special process or product, 
advertise, or to raise funds. The Agreement specifically provides for 
the favorable import treatment of (i) films, filmstrips and microfilm 
in either negative form, exposed and developed, or positive form, 
printed and developed; (ii) sound recordings of all types and forms; 
(iii) glass slides; models, static and moving; wall charts, maps, and 
posters. These materials are afforded favorable import treatment only 
upon a determination by the government of the importing country that 
they are educational, scientific, and cultural in character.

A Judicial Challenge

    On December 5, 1985, a group of independent filmmakers, producers, 
distributors, and a membership association filed suit against the 
Agency in United States District Court for the Central District of 
California. Plaintiffs alleged that the Agency-promulgated regulations 
governing administration of the Agreement violated their Constitutional 
right of free speech. The district court agreed with Plaintiffs and 
found that the regulations were unconstitutional on their face. See 
Bullfrog Films, Inc. v. Wick, 646 F. Supp. 492 (C.D. Cal. 1986). The 
district court was upheld on appeal. See Bullfrog Films, Inc. v. Wick, 
847 F.2d 502 (9th Cir. 1988).
    The Courts determined that the regulations, as promulgated, were 
unconstitutionally vague and permitted the Agency to engage in 
impermissible content analysis. In response to the district court 
decision, Bullfrog I, the Agency published revised regulations on 
November 16, 1987. See 52 Fed. Reg. 43,753 (1987). Plaintiffs 
immediately sought district court review and were again successful when 
the court found, pursuant to unpublished decision filed May 13, 1988, 
that the revised regulations were facially unconstitutional. On 
September 9, 1988, the district court ordered the Agency to promulgate 
new regulations consistent with the Constitution.
    The Agency sought appellate review and was granted a stay of the 
district court's order. During the pendency of this second appeal the 
Agency continued to administer the Agreement pursuant to the revised 
regulations published on November 16, 1987. A second appellate 
decision, Bullfrog II, was rendered March 12, 1992. See Bullfrog Films, 
Inc. v. Wick, 959 F.2d 782 (9th Cir. 1992).
    In the Bullfrog II decision the circuit court found three of the 
four grounds upon which the Agency had sought appellate review to be 
moot due to newly enacted Congressional legislation. This legislation, 
discussed more fully infra, directs the Agency to refrain from the 
content analysis that the courts had found objectionable. The circuit 
court remanded a fourth ground of appeal on the basis that the court 
below had not ruled on the matter. In its opinion, the Bullfrog II 
court determined that the Agency should be afforded an opportunity to 
administer the Agreement in light of the new legislation and promulgate 
revised regulations consistent with both the decisions of the courts 
and the legislative directives.

A Legislative Initiative

    While the issues surrounding Agency administration of the Agreement 
continued to wend their way through the courts, Congressional interest 
in this matter was piqued. Pursuant to Section 207 of the Foreign 
Relations Authorization Act, Fiscal Years 1992 and 1993, Public Law 
101-138, 105 Stat. 647 (1991), Congress enacted legislation which 
addresses Agency administration of the Agreement. In administering the 
Agreement, the Agency may not consider visual or auditory material to 
fail to qualify as being of international educational character:

    (1) Because it advocates a particular position or viewpoint, 
whether or not it presents or acknowledges opposing viewpoints;
    (2) Because it might lend itself to misinterpretation, or to 
misrepresentation of the United States or other countries, or their 
people or institutions;
    (3) Because it is not representative, authentic, or accurate or 
does not represent the current state of factual knowledge of a 
subject or aspect of a subject unless the material contains 
widespread and gross misstatements of fact;
    (4) Because it does not augment international understanding and 
goodwill, unless its primary purpose or effect is not to instruct or 
inform through the development of a subject or aspect of a subject 
and its content is not such as to maintain, increase or diffuse 
knowledge; or
    (5) Because in the opinion of the agency the material is 
propaganda.

    This legislation is intended to cure the Constitutional infirmities 
under which the previously promulgated regulations allegedly labored. 
The legislation is intended to also eliminate the vagueness surrounding 
what material the Agency will certify or authenticate and to limit the 
permissible scope of content analysis which the Agency may undertake in 
its determination of whether to certify or authenticate submitted 
material. The House Conference Report illustrates the legislative 
intent underlying the passage of this provision. The Conferees state 
adoption of Section 207 is necessary:

    * * * to ensure that the United States implements the Beirut 
Agreement in conformity with its purpose and with the First 
Amendment to the Constitution of the United States. The provision is 
intended to ensure that government regulations do not frustrate the 
purpose of the Agreement by empowering U.S. government officials to 
make subjective judgments about the political content or message of 
documentary films, and thereby impede their circulation abroad by 
denial of educational certification. Adoption of the provision is 
also designed to ensure that determinations by the U.S. Government 
of the educational character of documentary films are viewpoint 
neutral.
    H.R. Conf. Rep. No. 238, 102d Cong., 1st Sess. 126 (1991), 
reprinted in 1991 U.S.C.C.A.N. 384, 468.

    Pursuant to this Rulemaking the Agency seeks to reconcile the terms 
of the Agreement with the language of Section 207 and the decisions 
rendered in Bullfrog I and Bullfrog II.

Executive Response

    Section 207 directs continued Agency implementation and 
administration of the Agreement. The terms of the Agreement require 
that the Agency ascertain that material submitted for certification or 
authentication is of an international educational, scientific, and 
cultural character. Some degree of content analysis is required and the 
courts have recognized this fact. The Agency henceforth will exercise 
only that level of analysis necessary to determine whether the material 
meets the threshold requirement of educational, scientific, and 
cultural character.
    Integral to this minimal content analysis is the requirement that 
submitted material instruct or inform. This requirement is met, 
pursuant to the proposed definition set forth at Sec. 502.2, through 
the submission of material which is intended to teach, train or impart 
knowledge through a reasoned development of a subject which aids the 
viewer or listener in a learning process. Submitted material must be 
free of widespread and gross misstatements of fact.
    The criteria which the Agency proposes to utilize in its 
certification and authentication review process are set forth at 
Sec. 502.3. In adopting this criteria the Agency has examined the 
opinions rendered in Big Mama Rag, Inc. v. United States, 631 F.2d 1030 
(D.C. Cir. 1980), and National Alliance v. United States, 710 F.2d 868 
(D.C. Cir. 1983). The Agency is of the opinion that the proposed 
regulations will, consistent with the opinion rendered in National 
Alliance, focus the required analysis upon the method of presentation 
rather than the content of expression. Material which instructs or 
informs (an Agreement requirement) and is free of widespread and gross 
misstatements of fact (a Section 207 directive) will be certificated or 
authenticated regardless of viewpoint.

Public Comment

    The Agency is soliciting public comment on these proposed 
regulations notwithstanding that it is under no legal requirement to do 
so. Agency administration and implementation of the Beirut Agreement, 
an international treaty, is a foreign affairs function of the United 
States. The Administrative Procedure Act, 5 U.S.C. 553 (a)(1)(1989), 
specifically exempts from application of the Act foreign affairs 
functions of the United States. A thirty day period for comment is 
hereby extended. This action may not be deemed a waiver of the foreign 
affairs exemption extended the Agency under the terms of the 
Administrative Procedure Act.
    In accordance with 5 U.S.C. 605(5), the Agency certifies that this 
rule does not have a significant adverse economic impact on a 
substantial number of small entities. This rule is not considered to be 
a major rule within the meaning of section 1(b) of E.O. 12291, nor does 
this rule have Federalism implications warranting the preparation of a 
Federalism Assessment in accordance with Executive Order 12612.
    The reporting and regulatory requirement associated with this rule 
is being submitted to the Office of Management and Budget for approval 
in accordance with 44 U.S.C. chapter 35.

List of Subjects in 22 CFR Part 502

    Audiovisual material, Education, Exports, Imports, Trade 
agreements.

    Accordingly, the Agency proposes to amend 22 CFR Part 502 as 
follows:

PART 502--[REPLACED]

    1. The authority citation for 22 CFR Part 502 continues to read:

    Authority: 5 U.S.C. 301; 19 U.S.C. 2051, 2052; 22 U.S.C. 1431 et 
seq.; Pub. L. 101-138; E.O. 11311; 31 FR 13413; 3 CFR 1966-1900 
Comp., page 593.

    2. Part 502 is revised to read as follows:

PART 502--WORLD-WIDE FREE FLOW OF AUDIO-VISUAL MATERIALS

502.1  Purpose
502.2  Definitions
502.3  Certification and Authentication Criteria
502.4  Certification Procedures--Exports
502.5  Authentication Procedures--Imports
502.6  Consultation with Subject Matter Specialists
502.7  Review and Appeals Procedures
502.8  Coordination with U.S. Customs Service
502.9  General Information


Sec. 502.1  Purpose.

    The United States Information Agency administers the ``Beirut 
Agreement of 1948'', a multinational treaty formally known as the 
Agreement for Facilitating the International Circulation of Visual and 
Auditory Material of an Educational, Scientific and Cultural Character. 
This Agreement facilitates the free flow of educational, scientific and 
cultural audio-visual materials between nations by providing favorable 
import treatment through the elimination or reduction of import duties, 
licenses, taxes, or restrictions. The United States and other 
participating governments facilitate this favorable import treatment 
through the issuance or authentication of a certificate that the audio-
visual material for which favorable treatment is sought conforms with 
criteria set forth in the Agreement.


Sec. 502.2  Definitions.

    Agency--means the United States Information Agency.
    Applicant--means (1) the United States holder of the ``basic 
rights'' in the material submitted for export certification; or (2) the 
holder of a foreign certificate seeking import authentication.
    Application Form--means the Application for Certificate of 
International Educational Character (Form IAP-17) which is required for 
requesting Agency certification of United States produced audio-visual 
materials under the provisions of the Beirut Agreement.
    Attestation Officer--means the Chief Attestation Officer of the 
United States and any member of his or her staff with authority to 
issue Certificates or Importation Documents.
    Audio-visual materials--means (1) films, filmstrips and microfilm 
in exposed and developed negative form, or in positive form, viz., 
masters or prints, teletranscriptions, kinescopes, videotape, or prints 
therefrom; (2) electronic sound recordings and sound/picture recordings 
of all types and forms or pressings and transfers therefrom; (3) 
slides, photographs, and transparencies; (4) moving and static models, 
charts, globes, maps and posters.
    Authentication--means the process through which an applicant 
obtains a United States Importation Document for Audio-visual Materials 
(Form IA-862).
    Basic rights--means the world-wide non-restrictive ownership rights 
in audio-visual materials from which the assignment of subsidiary 
rights (such as language versions, television, limited distribution, 
reproduction, etc.) are derived.
    Beirut Agreement--means the ``Agreement for Facilitating the 
International Circulation of Visual and Auditory Materials of an 
Educational, Scientific, or Cultural Character.''
    Certificate--means a document attesting that the named material 
complies with the standards set forth in Article I of the Beirut 
Agreement issued by (1) the appropriate government agency of the State 
wherein the material to which the certificate relates originated, or 
(2) by the United Nations Educational, Scientific and Cultural 
Organization.
    Certification--means the process of obtaining a certificate 
attesting that audio-visual materials of United States origin being 
exported from the United States comply with the standards set forth in 
Article I of the Beirut Agreement (as interpreted pursuant to Section 
207 of Public Law 101-138).
    Collateral instructional material--means a teacher's manual, study 
guide, or similar instructional material prepared or reviewed by a bona 
fide subject matter specialist. Such material must delineate the 
informational or instructional objectives of the audio-visual material 
and illustrate or explain how to utilize such material to attain the 
stated objectives.
    Committee on Attestation--means the committee which advises the 
Attestation Officer on matters of policy and the evaluation of specific 
materials.
    Director--means the Director of the United States Information 
Agency.
    Exports--means educational, scientific, and cultural audio-visual 
material of United States origin, being sent from the United States.
    Importation Document--means the United States Importation Document 
for Audio-visual Materials (Form IA-862) issued by the Chief 
Attestation Officer of the United States which attests that materials 
of foreign origin entering the United States comply with the standards 
set forth in Article I of the Beirut Agreement (as interpreted pursuant 
to Section 207 of Public Law 101-138) and is therefore entitled to 
duty-free entry into the United States pursuant to the provisions of 
the United States Customs Bureau Harmonized Tariff System Item No. 
9817.00.4000.
    Imports--means educational, scientific, and cultural audio-visual 
material of foreign origin being brought into the united States.
    Instruct or inform--means to teach, train or impart knowledge 
through a reasoned development of a subject or aspect of a subject to 
aid the viewer or listener in a learning process. The instructional or 
informational character of audio-visual material may be evidenced by 
the presence of collateral instructional material.
    Knowledge--means a body of facts and principles acquired by 
instruction, study, research, or experience.
    Review Board--means the panel appointed by the Director to review 
appeals filed by applicants from decisions rendered by an Attestation 
Officer.
    Subject matter specialist--means an individual who has acquired 
special skill in or knowledge of a particular subject through 
professional training or practical experience.


Sec. 502.3  Certification and authentication criteria.

    (a) The Agency shall certify or authenticate audio-visual materials 
submitted for review as educational, scientific and cultural in 
character and in compliance with the standards set forth in Article I 
of the Beirut Agreement when:
    (1) Their primary purpose or effect is to instruct or inform 
through the development of a subject or aspect of a subject, or when 
their content is such as to maintain, increase or diffuse knowledge, 
and augment international understanding and goodwill; and
    (2) The materials are representative, authentic, and accurate; and
    (3) The technical quality is such that it does not interfere with 
the use made of the material.
    (b) The Agency will not certify or authenticate any audio-visual 
material submitted for review which:
    (1) Does not primarily instruct or inform through the development 
of a subject or aspect of a subject and its content is not such as to 
maintain, increase or diffuse knowledge.
    (2) Contains widespread and gross misstatements of fact.
    (3) Is not technically sound.
    (4) Has as its primary purpose or effect to amuse or entertain.
    (5) Has as its primary purpose or effect to inform concerning 
timely current events (newsreels, newscasts, or other forms of ``spot'' 
news).
    (6) Stimulates the use of a special process or product, advertises 
a particular organization or individual, raises funds, or makes 
unsubstantiated claims of exclusivity.
    (c) In its administration of the criteria set forth in this 
section, the Agency shall not fail to qualify audio-visual material 
because:
    (1) It advocates a particular position or viewpoint, whether or not 
it presents or acknowledges opposing viewpoints;
    (2) It might lend itself to misinterpretation, or to 
misrepresentation of the United States or other countries, or their 
people or institutions;
    (3) It is not representative, authentic, or accurate or does not 
represent the current state of factual knowledge of a subject or aspect 
of a subject unless the material contains widespread and gross 
misstatements of fact;
    (4) It does not augment international understanding and goodwill, 
unless its primary purpose or effect is not to instruct or inform 
through the development of a subject or an aspect of a subject and its 
content is not such as to maintain, increase or diffuse knowledge; or
    (5) In the opinion of the agency the material is propaganda.


Sec. 502.4  Certification procedures--Exports.

    (a) Applicants seeking certification of U.S. produced audio-visual 
materials shall submit to the Agency a completed Application Form for 
each subject or series for which certification is sought. Collateral 
instructional material, if any, and a copy or example of the material 
must accompany the Application Form.
    (b) Upon an affirmative determination by the Agency that the 
submitted materials satisfy the Certification and Authentication 
Criteria set forth in Sec. 502.3 of this part, a Certificate shall be 
issued. A copy of such Certificate must accompany each export shipment 
of the certified material.


Sec. 502.5  Authentication procedures--Imports.

    (a) Applicants seeking Agency authentication of foreign produced 
audio-visual materials shall submit to the Agency a bona fide foreign 
certificate, a copy or example of the material for which authentication 
is sought, and related collateral instructional material, if any.
    (b) Upon an affirmative determination by the Agency that the 
submitted materials satisfy the Certification and Authentication 
Criteria set forth in Sec. 502.3 of this part, an Importation Document 
shall be issued. A copy of such Importation Document must be presented 
to United States Customs at the port of entry.


Sec. 502.6  Consultation with subject matter specialists.

    (a) The Agency may, in its discretion, solicit the opinion of 
subject matter specialists for the purpose of assisting the Agency in 
its determination of whether materials for which export certification 
or import authentication is sought contain widespread and gross 
misstatements of fact.
    (b) As necessary, the Agency may determine eligibility of material 
for certification or authentication based in part on the opinions 
obtained from subject matter specialists and the Committee on 
Attestation.


Sec. 502.7  Review and appeal procedures.

    (a) An applicant may request a formal review of any adverse ruling 
rendered by the Attestation Officer. Such request for review must be 
made in writing and received no more than 30 days from the date of the 
Attestation Officer's decision.
    (b) The request for review must set forth all arguments which the 
applicant wishes to advance in support of his or her position and any 
data upon which such argument is based. A copy of the material for 
which certification or authentication has been denied must accompany 
the request for review. The request for review should be addressed as 
follows: Attestation Program Review Board, U.S. Information Agency, 301 
4th Street, SW., Washington, DC 20547.
    (c) The Review Board shall render the applicant a written decision, 
reversing or affirming the ruling of the Attestation Officer, within 30 
days from receipt of the request for review. Such decision shall 
constitute final administration action.


Sec. 502.8  Coordination with U.S. Customs Service.

    (a) Nothing in the regulations in this part shall preclude 
examination of imported materials pursuant to the Customs laws and 
regulations of the United States as codified at 19 U.S.C. 1305 and 19 
CFR 10.121, or the application of the laws and regulations governing 
the importation or prohibition against importation of certain materials 
including seditious or salacious materials as set forth at 19 U.S.C. 
1305.
    (b) Agency authentications of a foreign certificate for entry under 
HTS Item No. 9817.00.4000 will be reflected by the issuance of an 
Importation Document. A copy of each Importation Document issued by the 
Agency will be simultaneously furnished the United States Customs 
Service.
    (c) Customs User Fee: Articles delivered by mail, which are 
eligible for duty-free entry under the regulations in this part are, 
additionally, not subjected to the standard Customs User Fee normally 
imposed by the United States Customs Service, provided there has been a 
timely filing with the appropriate United States Customs Service office 
of the documentation required by the regulations in this part.


Sec. 502.9  General information.

    (a) General information and application forms may be obtained by 
writing to the Attestation Office as follows: Chief Attestation Officer 
of the United States, United States Information Agency, 301 4th Street, 
SW., Washington, DC 20547; or calling (202) 475-0021.
    (b) Completed applications should be sent to the above address. 
Direct Mail Deliveries (UPS, Express Mail, etc.) should be sent to: 
Chief Attestation Officer of the United States, United States 
Information Agency, 301 4th Street, SW., Washington, DC 20547.

    Dated: March 17, 1994.
Les Jin,
General Counsel.
[FR Doc. 94-8047 Filed 4-8-94; 8:45 am]
BILLING CODE 8230-01-M