94-9668. Educational, Scientific, and Cultural Material; World-Wide Free Flow (Export-Import) of Audio-Visual Materials  

  • [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]
    BILLING CODE 8230-01-M
    
    
    

Document Information

Published:
04/21/1994
Department:
United States Information Agency
Entry Type:
Uncategorized Document
Action:
Notice of final rulemaking.
Document Number:
94-9668
Dates:
These regulations will take effect upon publication.
Pages:
0-0 (1 pages)
Docket Numbers:
Federal Register: April 21, 1994, Rulemaking No. 200
CFR: (10)
22 CFR 502.1
22 CFR 502.2
22 CFR 502.3
22 CFR 502.4
22 CFR 502.5
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