[Federal Register Volume 59, Number 77 (Thursday, April 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9668]
[[Page Unknown]]
[Federal Register: April 21, 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 final rulemaking.
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SUMMARY: By this notice the Agency is adopting final regulations
governing its administration 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 dictate that new
regulations be adopted.
EFFECTIVE DATE: These regulations will take effect upon publication.
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 of this international
collaborative effort. The Agreement provides an exemption of import
duties, import licenses, special taxes, quantitative restrictions and
other restraints and costs on certain types of audiovisual materials.
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 Executive
Order 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 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 (1) Films, filmstrips and microfilm
in either negative form, exposed and developed, or positive form,
printed and developed; (2) sound recordings of all types and forms; (3)
glass slides; models, static and moving; wall charts, maps, and
posters. These materials are afforded favorable import treatment only
upon a determination made by the government of the country of import
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 FR 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.
Executive Response
On August 12, 1993, the Agency published in the Federal Register,
proposed regulations that it believed sufficient to reconcile the terms
of the Agreement with the language of section 207 and the judicial
decisions rendered in Bullfrog I and Bullfrog II discussed above. A
total of twelve comments were received and reviewed. These comments
were generally supportive of the proposed regulations, although three
commentors opined that the Agency's proposed regulations failed to
implement fully the terms of the Agreement. Other comments suggested
that the definition of materials entitled to Agreement certification
should be expanded to include learning aids, models, and entertainment
films. Those commentors who questioned whether the Agreement was being
fully implemented focused their concern upon differences in the
language of section 207 and the terms of the Agreement.
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. Obviously, some degree of content analysis is
required and the courts have recognized this fact. Accordingly, this
requirement will be met, pursuant to the adopted definition set forth
at Sec. 502.2, through the submission of material which is intended to
instruct or inform or through the submission of material whose content
is such as to maintain, increase, or diffuse knowledge. Submitted
material must also be free of widespread and gross misstatements of
fact.
One commentor, Center for Constitutional Rights, suggested that the
word ``reasoned'' be deleted from the definition of ``instruct or
inform'' which is set forth in Sec. 502.2. The Center suggests that
inclusion of the word ``reasoned'' may improperly disqualify some
educational material and may invite impermissible viewpoint analysis.
Upon review of this matter, the Agency agrees that inclusion of the
word ``reasoned'' in the definition of ``instruct or inform'' is
unnecessary and therefore deletes it from the final definition adopted
herein.
The criteria which the Agency will 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 adopted 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 or maintains,
increases, or diffuses knowledge (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.
Regulatory Analysis and Notices
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) or Executive Order
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, 22 CFR part 502 is revised to read as follows:
PART 502--[Revised]
PART 502--WORLD-WIDE FREE FLOW OF AUDIO-VISUAL MATERIALS
Sec.
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
Authority: 5 U.S.C. 301; 19 U.S.C. 2051, 2052; 22 U.S.C. 1431 et
seq.; Public Law 101-138; E.O. 11311, 31 FR 13413, 3 CFR 1966-1900
comp., page 593.
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; (2)
electronic sound recordings and sound/picture recordings of all types
and forms or pressings and transfers thereform; (3) slides and
transparencies; moving and static models, wallcharts, 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 or 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
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 the 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 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 (GC/A), 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 administrative action.
Sec. 502.8 Coordination with United States Customs Service.
(a) Nothing 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.
General information and application forms may be obtained by
writing to the Attestation Office as follows: Chief Attestation Officer
of the United States (GC/A), United States Information Agency, 301 4th
Street, SW., Washington, DC 20547; or calling (202) 475-0221.
Dated: April 15, 1994.
Les Jin,
General Counsel.
[FR Doc. 94-9668 Filed 4-20-94; 8:45 am]
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