[Federal Register Volume 60, Number 74 (Tuesday, April 18, 1995)]
[Proposed Rules]
[Pages 19385-19386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9497]
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UNITED STATES INFORMATION AGENCY
22 CFR Part 502
[Rulemaking No. 201]
Educational, Scientific, and Cultural Material; World-Wide Free
Flow (Export-Import) of Audio-Visual Materials
AGENCY: United States Information Agency.
ACTION: Proposed rule with request for comments.
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SUMMARY: This proposed rule would amend existing regulations governing
the United States Information Agency's administration of the Agreement
for Facilitating the International Circulation of Visual and Auditory
Materials of an Educational, Scientific and Cultural Character, of
1948, by permitting the issuance of serial certifications in certain
circumstances. The amendment is needed to reinstate to the regulations
a provision omitted in a previous revision of the regulations. The
amendment will formalize the practice, long followed informally, of
allowing for certification of time sensitive materials in serial
format, thus facilitating the free flow of eligible materials.
DATES: Written comments on this proposed rule will be accepted through
or until May 18, 1995 and must be submitted in duplicate. Late-filled
comments will be considered to the extent practicable.
ADDRESSES: All comments concerning these proposed regulations should be
addressed to Neila Sheahan, 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:
Neila Sheahan, Assistant General Counsel, Office of the General
Counsel, [[Page 19386]] Room 700, United States Information Agency, 301
4th Street SW., Washington, DC 20547, (202) 619-5030.
SUPPLEMENTARY INFORMATION: The United States Information Agency
implements and administers the Agreement for Facilitating the
International Circulation of Visual and Auditory Materials of an
Educational, Scientific and Cultural Character (``Beirut Agreement''),
enacted by the Third General Session of the United Nations Educational,
Cultural and Scientific Organization (UNESCO), in Beirut, Lebanon in
1948, 17 U.S.T. 1578. In order to reconcile the terms of the Beirut
Agreement with recent judicial decisions and statutory requirements,
the Agency published a notice of proposed rulemaking on August 12, 1993
(58 FR 42896). After receiving and considering public comment in
response to this notice of proposed rulemaking, the Agency published
final regulations at 59 FR 18963 on April 21, 1994. Those regulations
made changes in the substantive criteria by which the Agency evaluates
the character of audio visual material for certification, and
renumbered the regulations. The regulations, however, omitted the
provision for serial certifications, a practice followed informally
from 1963 and formally incorporated into Agency regulations in 1984, at
22 CFR 502.6(b)(6). The provision for serial certifications was not
challenged by judicial decision; nor was its alteration or elimination
required by statute. This proposed rule reinstates such provision,
slightly reworded, by adding sections 502.3 (d) and (e).
The provision for serial certification allows the certification of
otherwise eligible materials that (1) Are produced in series form
(e.g., weekly, bi-weekly, monthly), (2) are extremely time sensitive;
and therefore the normal processing of certification decisions thereon
would result in unreasonable delays and monetary loss to the producer,
and (3) samples are provided and the educational character of the
future programs can be generally described before certification and can
be verified by a post-certification review of the items or through
descriptive material such as a script of the narration. This provision
will therefore be of benefit to interested parties and will facilitate
the administration of the program.
To the extent such serial certification may be deemed a delegation
of administrative authority, the provision is a valid delegation, as
the Agency retains post-certification review authority. Such provision
is consistent with relevant judicial precedent. See United Black Fund,
Inc. v. Hampton, 352 F. Supp. 898 (D.D.C. 1972); R.H. Johnson & Co. v.
Securities & Exchange Comm'n, 198 F.2d. 690 (2nd Cir. 1952); and United
States v. S.A. Empresa de Viacao Aerea Rio Grandesnse, 467 U.S. 797
(1984). These decisions recognize the legality of sub-delegations
deemed necessary in agency discretion as practical methods of
accomplishing agency regulatory functions, as long as agencies retain
ultimate authority to police compliance.
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) of Executive Order
12291, nor does this rule have Federalism implications warranting the
preparation of a Federalism Assessment in accordance with Executive
Order 12612. No additional burden under the Paperwork Reduction Act, 44
U.S.C. Chapter 35, will result from the promulgation of this rule. The
Agency will keep the rulemaking docket open for 30 days. Comments are
invited on the rule through May 18, 1995. Following the close of the
comment period, the Agency will respond to the comments and, if
appropriate, amend the rule.
The Agency is inviting public comment on this proposed rule
notwithstanding that it is under no legal requirement to do so. Agency
administration 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), specifically exempts from
application of the Act foreign affairs functions of the United States.
The thirty-day period for comment provided for in this notice may not
be deemed a waiver of the foreign affairs exemption extended to the
Agency under the Administrative Procedure Act.
List of Subjects in 22 CFR Part 502
Audiovisual material, Education, Exports, Imports, Trade
agreements.
For the reasons set out in the preamble, 22 CFR part 502 is
proposed to be amended as follows:
PART 502--WORLD-WIDE FREE FLOW OF AUDIO-VISUAL MATERIALS
1. The authority citation for part 502 continues to read as
follows:
Authority: 5 U.S.C. 301, 19 U.S.C. 2051, 22 U.S.C. 1431 et seq;
Public Law 102-138, E.O. 11311, 31 FR 13413, 3 CFR 1966-1970 comp.,
page 593.
2. Section 502.2 is proposed to be amended by adding, in
alphabetical order, a definition for ``serial certification'' to read
as follows:
Sec. 502.2 Definitions.
* * * * *
Serial certification--means certification by the Agency of
materials produced in series form and which, for time-sensitive
reasons, cannot be reviewed prior to production; but samples are
provided on application, and the materials are subject to post-
certification review.
* * * * *
3. Section 502.3 is proposed to be amended by adding new paragraphs
(d) and (e) to read as follows:
Sec. 502.3 Certification and authentication criteria.
* * * * *
(d) The Agency may certify or authenticate materials which have not
been produced at the time of application upon an affirmative
determination that:
(1) The materials will be issued serially,
(2) Representative samples of the serial material have been
provided at the time of application,
(3) Future titles and release dates have been provided to the
Agency at the time of application,
(4) The applicant has affirmed that:
(i) Future released materials in the series will conform to the
substantive criteria for certification delineated at paragraphs (a)-(c)
of this section;
(ii) Such materials will be similar to the representative samples
provided to the Agency on application; and
(iii) The applicant will provide the Agency with copies of the
items themselves or descriptive materials for post-certification
review.
(e) If the Agency determines through a post-certification review
that the materials do not comply with the substantive criteria for
certification delineated at paragraphs (a)-(c) of this section, the
applicant will no longer be eligible for serial certifications.
Ineligibility for serial certifications will not affect an applicant's
eligibility for certification of materials reviewed prior to
production.
Dated April 12, 1995.
Les Jin,
General Counsel.
[FR Doc. 95-9497 Filed 4-17-95; 8:45 am]
BILLING CODE 8230-01-M
