[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]
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